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R.V.D. v. State

Alabama Court of Criminal Appeals

June 1, 2018

R.V.D.
v.
State of Alabama

          Appeal from Madison Circuit Court (CC-16-1460)

          BURKE, JUDGE.

         R.V.D. was convicted of two counts of first-degree sodomy, a violation of § 13A-6-63(a)(3), Ala. Code 1975, and two counts of sexual abuse of a child less than 12 years old, a violation of § 13A-6-69.1, Ala. Code 1975. He was sentenced to life imprisonment without the possibility of parole for each of the sodomy convictions and to 20 years' imprisonment for each of the sexual-abuse convictions, all sentences to run concurrently. This appeal follows.

         The evidence presented at R.V.D.'s bench trial indicated that he sodomized and sexually abused his granddaughter, P.P., over a period of approximately five years. P.P. testified about two specific incidents of abuse. The first incident P.P. testified about occurred "right before [her] third birthday." (R. 12.) P.P. stated that R.V.D. told her to "touch his tinkle spot with [her] hands" and that he did the same thing to her. (R. 12.) According to P.P., R.V.D. would get her to "rub it and stuff like that." (R. 13.) P.P. also testified that R.V.D. put his mouth on the same spot on her and would "lick it and stuff." (R. 14.) P.P. testified that she refers to her "private" as a "tinkle spot, " and that a "private" is "where you use the bathroom from." (R. 18.) P.P. also testified that R.V.D. told her not to tell anyone what he had done "or else he would hurt [her]." (R. 16.)

         P.P. went on to testify about a second incident in which the same thing happened. P.P. stated that when she was eight years old, she was at R.V.D.'s house and "Granny was sleeping, and [R.V.D.] was doing it to me, and he said that he would give me a honey bun if I did it to him." (R. 16.) According to P.P., she then went to her grandmother's room and told her what R.V.D. had done. P.P.'s grandmother relayed the allegations to P.P.'s mother, who reported the incident to police.

         The State also introduced three letters R.V.D. wrote to various members of his family in which he acknowledged that he had abused P.P. and asked for forgiveness. (R. 42.) In a letter to P.P., R.V.D. stated: "I am so very sorry for what I did to you. I wish I could take it all back." (C. 88.) In the same letter, R.V.D. continued: "Each time I touched you I prayed for forgiveness and asked God to take away the temptation, but the next time we were together, I yielded again." (C. 88.)

         In his defense, R.V.D. called Dr. Glen King, a forensic psychologist who testified regarding his evaluation of R.V.D. According to Dr. King, R.V.D. suffered from a condition called cardiovascular dementia. Dr. King opined that, although R.V.D. was competent to stand trial, he was unable to "understand the nature and quality of his actions and wrongfulness of his acts" at the time he abused P.P. The trial court was not persuaded; it found R.V.D. guilty of all charges.

         I.

         On appeal, R.V.D. argues that he did not knowingly and intelligently waive his right to a jury trial. However, R.V.D. did not first present this issue to the trial court. Therefore, it is not preserved for appellate review.

"'Review on appeal is restricted to questions and issues properly and timely raised at trial.' Newsome v. State, 570 So.2d 703, 717 (Ala.Crim.App.1989). 'An issue raised for the first time on appeal is not subject to appellate review because it has not been properly preserved and presented.' Pate v. State, 601 So.2d 210, 213 (Ala.Crim.App.1992). '"[T]o preserve an issue for appellate review, it must be presented to the trial court by a timely and specific motion setting out the specific grounds in support thereof."' McKinney v. State, 654 So.2d 95, 99 (Ala.Crim.App.1995) (citation omitted). 'The statement of specific grounds of objection waives all grounds not specified, and the trial court will not be put in error on grounds not assigned at trial.' Ex parte Frith, 526 So.2d 880, 882 (Ala. 1987). 'The purpose of requiring a specific objection to preserve an issue for appellate review is to put the trial judge on notice of the alleged error, giving an opportunity to correct it before the case is submitted to the jury.' Ex parte Works, 640 So.2d 1056, 1058 (Ala. 1994)."

Ex parte Coulliette, 857 So.2d 793, 794-95 (Ala. 2003).

         Moreover, this argument is refuted by the record. Before trial, R.V.D. filed a "Motion to Waive Jury Trial" in which he specifically stated that it would be in his "best interest to be tried by the Judge in this matter." (C. 18.) Both R.V.D. and defense counsel signed the motion. Additionally, the following exchange occurred immediately before the trial began:

"THE COURT: [Defense counsel], it's my understanding that in this particular case that you have waived your client's right to a trial by jury and request that I try this case on a non-jury basis?
"[DEFENSE COUNSEL]: I have, Your Honor, and I've talked to my client at length ...

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