State of Alabama v. Z.J.H.

Birmingham, Alabama criminal defense lawyer represented the Defendant charged with first-degree sodomy, see § 13A-6-63(a)(3), Ala. Code 1975, and sexual abuse of a child under the age 12 years old, see § 13A-6-69.1, Ala. Code 1975.



In November 2018, H.H., who was 10 years old and a fifth grader at McAdory Elementary, disclosed to her school counselor that her adoptive brother, 17-year-old Z.J.H., had sexually abused her since she was in the second grade until about one month before her disclosure.



H.H., who was 14 years old at the time of the trial, testified that on many occasions Z.J.H. had sexually abused H.H. at their home on Powder Plant Road in McCalla. H.H. initially told her friends, who, in turn, alerted the school counselor about the allegations that Z.J.H., along with "French kiss[ing]" H.H., would "suck [H.H.'s] feet," "make [H.H.] rub [Z.J.H.'s] private area," and "put it in [H.H.'s] mouth." (R. 884.) H.H. also had stated that "[Z.J.H.] would make [H.H.] watch [porn videos]."[2] (R. 885.)



H.H. later told Ammy Swaby, the forensic interviewer at the Clay House, that "[Z.J.H.] would make [H.H.] rub [Z.J.H.'s] private area until it leaked and [Z.J.H.] would kiss [H.H.] and suck on [her] feet and [Z.J.H.] would make [H.H.] sit on [Z.J.H.'s] face." (R. 890-91.) H.H. stated that, when Z.J.H. made H.H. sit on Z.J.H.'s face, H.H.'s clothes would be off and that "[Z.J.H.] would lick [H.H.'s] private area." (R. 891.) H.H. stated that she used the word "leak" because "when [Z.J.H.] would tell [her] to [rub his thing], [Z.J.H.] would say that." (R. 892.)



H.H. stated that the last time she went into Z.J.H.'s room and planned to ask Z.J.H. something, Z.J.H. had notes on his stomach that read "[t]he only way-one way to wake me up is to remove the blanket and suck me" and another one that read "that's the only way and underlined only." (R. 892-93.) H.H. stated that she "slid" the notes under her other adoptive brother K.H.'s door but that K.H. said that he threw the notes away. (R. 892-94.) H.H. testified that it was not the first time she had told K.H. about what Z.J.H. had done to H.H. H.H. testified that "[K.H.] told [H.H.] not to tell mom."[3] (R. 898-99.)



In his defense, Z.J.H. denied any inappropriate contact with H.H. But Z.J.H. admitted that H.H. had walked in on him while he was masturbating while watching pornography.



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Legal issue: Can a defendant in a sexual abuse case use evidence of a victim's alleged prior sexual abuse to explain the victim's knowledge of sexual acts?



CRIMINAL LAW. EXCLUSION OF EVIDENCE. The appellant contended that the trial court erred by excluding evidence of the victim's alleged prior sexual abuse under Rule 412, Ala. R. Evid., arguing it was relevant to explain the victim's knowledge of sexual acts; the court found no substantiated evidence to support this claim, thus finding no constitutional violation in excluding it.



CRIMINAL LAW. EXPERT TESTIMONY LIMITATION. The appellant argued that the trial court improperly limited expert testimony regarding his personality traits and their relation to sexual deviance; the court held the limitations were appropriate as no substantial nexus was proven between the expert's evaluation and the alleged criminal behavior.



CRIMINAL LAW. USE OF FACILITY DOG. The appellant contested the use of a certified facility dog in the courtroom, arguing it prejudiced the jury; the appellate court ruled the trial court acted within its discretion to reduce witness stress and found no undue prejudice was demonstrated.



CRIMINAL PROCEDURE. IMPEACHMENT OF WITNESS. The appellant argued the trial court erred in allowing impeachment of a witness's testimony without proper confrontation under Rule 613(b), Ala. R. Evid.; the appellate court determined this issue was not preserved for review as the appellant failed to raise specific objections at trial.



CRIMINAL LAW. WEIGHT OF THE EVIDENCE. The appellant challenged the jury's verdicts as unsupported by the weight of the evidence, arguing the case relied solely on the victim's testimony; the appellate court affirmed that a victim's testimony alone can establish a prima facie case and upheld the jury's verdicts.



CRIMINAL LAW. SENTENCING ERROR. Although not raised on appeal, the court identified a sentencing error—failure to impose at least 10 years of post-release supervision for the appellant's first-degree sodomy conviction, as required by § 13A-5-6(c), Ala. Code 1975—and remanded for correction.



Key Phrases First-degree sodomy. Sexual abuse of a child. Certified facility dog. Rule 412, Alabama Rules of Evidence. Postrelease supervision.

Affirmed