
    K.R.B. v. STATE.
    CR-00-1967.
    Court of Criminal Appeals of Alabama.
    Nov. 30, 2001.
    Rehearing Denied Jan. 25, 2002.
    Certiorari Denied May 24, 2002 Alabama Supreme Court 1010938.
    
      Faye Edmondson and Donald R. Harrison, Dadeville, for appellant.
    Bill Pryor, atty. gen., and Hense R. Ellis II, asst. atty. gen., for appellee.
   BASCHAB, Judge.

The appellant, K.R.B., was convicted of reckless endangerment (Count 1 of the indictment), a violation of § 13A-6-24, Ala. Code 1975; second-degree sodomy of D.W.B., Jr. (Count 2 of the indictment), a violation of § 13A-6-64(a)(l), Ala.Code 1975; first-degree sodomy of J.B. (Count 3 of the indictment) and first-degree sodomy of S.B. (Count 4 of the indictment), violations of § 13A-6-63(a)(3), Ala.Code 1975; second-degree sexual abuse of D.W.B., Jr. (Count 5 of the indictment), a violation of § 13A-6-67(a)(2), Ala.Code 1975; first-degree sexual abuse of J.B. (Count 6 of the indictment), first-degree sexual abuse of C.B. (Count 7 of the indictment), and first-degree sexual abuse of S.B. (Count 8 of the indictment), violations of § 13A-6-66(a)(3), Ala.Code 1975; production of obscene matter involving D.W.B., Jr. (Count 9 of the indictment), production of obscene matter involving J.B. (Count 10 of the indictment), production of obscene matter involving C.B. (Count 11 of the indictment), and production of obscene matter involving S.B. (Count 12 of the indictment), violations of § 13A-12-197, Ala.Code 1975; and one count of possession of obscene mattei (Count 13 of the indictment), a violation of § 13A-12-192(b), Aa.Code 1975. The trial court sentenced him to serve a term of twelve months in the county jail on the reckless endangerment conviction; concurrent terms of twenty years in prison on the second-degree sodomy conviction, fifty years in prison on the first-degree sodomy conviction involving J.B., and life in prison on the first-degree sodomy conviction involving S.B.; concurrent terms of twelve months in the county jail on the second-degree sexual abuse conviction and ten years in prison on each of the first-degree sexual abuse convictions; and concurrent terms of twenty years in prison on the production of obscene matter conviction involving D.W.B., Jr., forty years in prison on the production of obscene matter conviction involving J.B., sixty years in prison on the production of obscene matter conviction involving C.B., ninety-nine years in prison on the production of obscene matter conviction involving S.B., and ten years in prison on the possession of obscene matter conviction. It also ordered that the appellant serve his sentences on his sodomy convictions, on his sexual abuse convictions, and on his obscene matter convictions consecutively with each other. The appellant did not file any post-trial motions. This appeal followed.

This case involved four young victims— D.W.B., Jr., J.B., C.B., and S.B. — 'who were brothers and sisters. D.W.B., Jr., was twelve years old at the time of the offenses, and J.B., C.B., and S.B. were under twelve years of age at the time of the offenses. The appellant, who was the victims’ great uncle, had invited all four children to visit him. However, the children’s parents did not want all four children to visit at once. The appellant then suggested that the two boys, D.W.B., Jr., and J.B., visit him for one week; that he return them to their parents; and that the two girls, C.B. and S.B., then visit him for one week. Subsequently, D.W.B., Jr., and J.B. spent one week with the appellant. After the appellant took them home, C.B. and S.B. spent one week with the appellant. All four children testified that, during the visits, the appellant took photographs of them while they were nude. Additionally, D.W.B., Jr., J.B., and S.B. testified that the appellant touched them on their private parts and placed his mouth on their private parts. D.W.B., Jr., and J.B. testified that the appellant also made them put their mouths on his private parts. D.W.B., Jr., testified that he saw photographs of nude people on the computer in the appellant’s mobile home. Finally, S.B. testified that she saw photographs of nude children in the appellant’s travel trailer.

In an unpublished memorandum released today, we affirmed the appellant’s convictions for reckless endangerment, second-degree sodomy, first-degree sodomy, second-degree sexual abuse, first-degree sexual abuse of J.B. and S.B. based on Counts 6 and 8 of the indictment, production of obscene matter, and possession of obscene matter. See K.R.B. v. State, (No. CR-00-1967, November 30, 2001) — So.2d - (Ala.Crim.App.2001) (table). In this opinion, we address the sufficiency of the evidence to support the appellant’s conviction for first-degree sexual abuse of C.B. based on Count 7 of the indictment.

The appellant argues that the State did not present sufficient evidence to support his conviction for first-degree sexual abuse of C.B. Specifically, he contends that the State did not prove that he subjected C.B. to sexual contact. The State agrees that the appellant’s conviction based on Count 7 should be reversed.

“A person commits the crime of sexual abuse in the first degree if:
“(3) He, being 16 years old or older, subjects another person to sexual contact who is less than 12 years old.”

§ 13A-6-66(a), Ala.Code 1975. Section 13A-6-60(3), Ala.Code 1975, defines sexual contact as “[a]ny touching of the sexual or other intimate parts of a person not married to the actor, done for the purpose of gratifying the sexual desire of either party.” During the State’s direct examination of C.B., the following occurred:

“[PROSECUTOR]: Did [the appellant] ever touch you with his hands or his mouth?
“[C.B.]: No.
“[PROSECUTOR]: He never touched you: He never kissed you on your private parts?
“[C.B.]: No.
“[PROSECUTOR]: Did you ever see him kiss [S.B.] on her private parts?
“[C.B.]: No.
“[PROSECUTOR]: It is wrong for somebody to be kissed on their private parts?
“[C.B.]: Yes.
“[PROSECUTOR]: You wouldn’t want somebody to do that to you, would you?
“[C.B.]: No.
“[PROSECUTOR]: Nothing further of this witness, your Honor.
“[DEFENSE COUNSEL EDMOND-SON]: No questions of this young witness, Judge.”
(R. 317-18.)

We agree that the State did not present any evidence that the appellant subjected C.B. to sexual contact. Therefore, we reverse the appellant’s conviction for first-degree sexual abuse of C.B. based on Count 7 of the indictment and render a' judgment for the appellant.

AFFIRMED BY MEMORANDUM IN PART-; ; AND REVERSED IN PART AND JUDGMENT RENDERED.

McMILLAN, FU., and SHAW and WISE, JJ., concur; COBB, J., concurs in part, dissents in part, and concurs in the result as to the memorandum and concurs in the opinion, with opinion.

COBB, Judge,

concurring in part, dissenting in part, and concurring in the result as to the memorandum and concurring in the opinion.

I agree with the majority’s published opinion reversing the conviction on Count 7, because the State presented no evidence indicating that K.R.B. had subjected C.B. to sexual contact. I also concur with the majority on Parts I through IV and VI through VIII of the unpublished memorandum. I disagree with the majority’s discussion and conclusion in Part V, regarding the trial court’s denial of the challenge for cause of B.G., the police chief of the jurisdiction in which K.R.B. was arrested. I believe that the trial court abused its discretion when it denied the defendant’s challenge for cause. Nonetheless, I concur in the result as to that issue because, under present Alabama law, the error was harmless.

As the majority’s quotation from the voir dire questioning of B.G. discloses, B.G. acknowledged that he believed everyone he arrested was guilty. (R. 26.) He also said that he believed that when a person is arrested by a police officer, the person probably committed the crime for which he was arrested. (R. 27.) When defense counsel asked B.G. whether he believed an accused had the burden of proving that he was not guilty, B.G. responded without answering the question:

“To try to answer your question, part of my duty in the latter part of my career was to evaluate and supervise the actions of police officers involved in making cases. In that judgments had to be made, and I feel that I did an adequate job.”

(R. 27-28.)

The majority determined that the trial court did not err when the trial court denied the challenge for cause because B.G. stated that he could be fair and impartial, that his department was not the lead agency in the investigation, and that he did not directly supervise any of the law enforcement officers involved in this case. I disagree.

B.G. was the police chief of the agency that participated in the arrest of K.R.B. When law enforcement officers arrived to search KR.B.’s residence, K.R.B. had a gun and refused to allow the officers to enter for approximately one hour. (R. 107, 129-30, 146, 194.) Officers negotiated with K.R.B., and he allowed them to enter. K.R.B. then threatened to kill himself with a large butcher knife. (R. 173.) Only after the knife was taken from K.R.B. and he was placed in custody did the officers execute the search warrant. (R. 106-07.) One of the officers testified that KR.B.’s actions placed him in fear for his life and for the life of his fellow officers. (R. 130, 194.)

“The fact that C.B. was a retired Montgomery police officer was not a statutory ground for removing him for cause. See § 12-16-250, Ala.Code 1975. Therefore proof of absolute bias on the part of C.B. was necessary to justify the challenge. See, e.g., Ray v. State, 809 So.2d 875, 885 (Ala.Crim.App.2001), cert. denied, 809 So.2d 891 (Ala.2001)CIn order to justify a challenge for cause, there must be a statutory ground or some matter that imports absolute bias or favor and leaves nothing to the discretion of the trial court.’).”

McNabb v. State, [Ms. CR-98-0967, Oct. 26, 2001] — So.2d -, - (Ala.Crim.App.2001).

The test to be applied in determining the qualification of a prospective juror is probable prejudice. Although juror qualification is a matter left to the trial court’s broad discretion, this Court will look to the questions asked and the answers given by the prospective juror to aid in the determination of whether the court properly exercised its discretion. Dailey v. State, 828 So.2d 340, 342 (Ala.2001), and cases cited therein. B.G. twice stated that he believed that a person who was arrested had probably committed the crime. When asked if he would place the burden of proof on the defendant, B.G. avoided the question and stated that he had supervised police officers involved in making cases. The voir dire questions and answers indicate a bias on B.G.’s part. The circumstances of this particular case further support KR.B.’s challenge for cause. B.G.’s agency provided backup in K.R.B.’s arrest, and the arrest was far from routine. Authorities were initially involved in an armed standoff with K.R.B. Before he was taken into custody and subdued, K.R.B. had wielded a large butcher knife and had threatened to kill himself. Understandably, the officers were in fear for their safety. KR.B.’s arrest and the entire case were extraordinary. Under these circumstances, and in light of B.G.’s conflicting answers during voir dire, I believe there was sufficient evidence of B.G.’s bias, and I believe that he had a preconceived notion about KR.B.’s guilt. Therefore, KR.B.’s challenge for cause should have been granted, and the trial court abused its discretion when it denied the challenge.

In spite of the foregoing, I am compelled to concur as to the result. The erroneous denial of a challenge for cause is harmless error, and as “long as the jury that sits is impartial, the fact that the defendant had to use a peremptory challenge to achieve that result does not mean that Sixth Amendment was violated.” Ross v. Oklahoma, 487 U.S. 81, 88, 108 S.Ct. 2273, 101 L.Ed.2d 80 (1988).

Based on the foregoing, I concur only in the result reached as to Issue V of the unpublished memorandum. As to the opinion released today, I concur.  