188 So. 3d 720
Ala. Crim. App.2015Background
- D.L.R., the victim’s biological father, was convicted of sexual abuse of a child under 12 and sentenced to 15 years and fines; acquitted of first-degree sodomy.
- Victim K.R. was four at the time of the reported incidents (seven at trial); she made multiple out-of-court disclosures to daycare staff, her maternal grandmother, DHR, and law enforcement, accompanied by drawings depicting a penis and a butt.
- At trial K.R. often stated she did not remember making earlier statements or drawings, but on one occasion answered “Yes” when asked if her father did what the teacher reported; she also nodded that her grandmother told her to say what he did.
- The State played recorded interviews/forensic interviews and put on testimony from daycare staff, DHR personnel, an investigator, and an expert on child trauma (Karen Sullins) who opined children may repress or forget abuse.
- Defense moved for judgment of acquittal at close of State’s case and after all evidence; motions denied. Objections at trial to the expert were limited to relevance; confrontation and statutory-admissibility challenges were raised on appeal.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Admissibility under Confrontation Clause of child’s out-of-court statements | State: K.R. testified at trial and was subject to cross-examination, so statements admissible. | D.L.R.: Statements violated Sixth Amendment because K.R. claimed not to remember prior statements, rendering cross-examination ineffective. | Admissible — Crawford permits prior statements when declarant testifies; opportunity to cross-examine satisfied despite claimed memory lapses. |
| Constitutionality of Ala. Code § 15-25-31 et seq. | State: statute governs admission of child hearsay when statutory requirements met. | D.L.R.: Statute conflicts with Supreme Court precedent (challenge raised on appeal). | Not considered — issue forfeited on appeal for lack of timely, developed argument. |
| Sufficiency of evidence for sexual abuse conviction | State: testimony, drawings, and interviews showed D.L.R. caused sexual contact (victim touched his intimate parts). | D.L.R.: No direct evidence he touched victim’s sexual parts; statute requires touching of child’s intimate parts. | Sufficient — statute covers any touching of sexual or intimate parts caused by actor; forcing victim to touch actor’s intimate parts constitutes sexual contact. |
| Admissibility/qualification of expert witness (Karen Sullins) | State: expert testimony on trauma and memory is relevant and within her training/experience. | D.L.R.: Expert not properly noticed; lacked shown qualifications under Rule 702 (raised on appeal). | Not reviewed — defendant failed to preserve the specific Rule 702/notice objections at trial; only relevance objection was ruled on. |
Key Cases Cited
- Crawford v. Washington, 541 U.S. 36 (2004) (Confrontation Clause permits prior testimonial statements when declarant testifies and is subject to cross-examination)
- Delaware v. Fensterer, 474 U.S. 15 (1985) (Confrontation Clause secures the opportunity for cross-examination)
- Ray v. State, 52 So.3d 547 (Ala. Crim. App. 2007) (defendant may be guilty when victim is caused to touch actor’s intimate parts)
- Ex parte B.B.S., 647 So.2d 709 (Ala. 1994) (discussed indicia-of-reliability approach to child hearsay prior to Crawford)
- L.J.K. v. State, 942 So.2d 854 (Ala. Crim. App. 2005) (Crawford abrogated the Ohio v. Roberts reliability analysis)
- Holley v. State, 671 So.2d 131 (Ala. Crim. App. 1995) (examples construe "sexual contact" to include causing victim to touch actor’s penis)
- Jones v. State, 719 So.2d 249 (Ala. Crim. App. 1996) (victim’s testimony alone can establish a prima facie case of sexual abuse)