Bester v. State

• Docket Number: CR-21-0334
• Decision Date: 17 February 2023
• Citation: 381 So.3d 1155
• Parties: Timothy Earl BESTER v. STATE of Alabama
• Court: Alabama Court of Criminal Appeals

381 So.3d 1155

Timothy Earl BESTER

v.STATE of Alabama

CR-21-0334

Court of Criminal Appeals of Alabama.

October 7, 2022

Rehearing Denied December 9, 2022

Certiorari Denied February 17, 2023

Alabama Supreme Court SC-2022-1030

Alisha McKay of Jefferson Defender’s Office, Birmingham,County Public for appellant.

Steve Marshall, att’y gen., and Laura Irby Cuthbert, asst. att’y gen., for appellee.

KELLUM, Judge.

The appellant, Timothy Earl Bester, was convicted of rape in the first degree, see§ 13A-6-61(a)(1),Ala. Code 1975; two counts of kidnapping in the first degree, see§ 13A-6-43(a)(4),Ala. Code 1975; sexual abuse in the first degree, see§ 13A-6-66(a)(1),Ala. Code 1975; and theft of property in the third degree, see§ 13A-8-4.1(c),Ala. Code 1975.Bester was sentenced as a habitual felony offender to life imprisonment without the possibility of parole for the rape and kidnapping convictions, to 20 years’ imprisonment for the sexual-abuse conviction, and to 10 years’ imprisonment for the theft conviction.

In October 2020, Bester was indicted for the rape and kidnapping of K.S.¹(C. 344-45;CC-20-1376;andCC-20-1377.)In October 2020, Bester was also indicted for charges of rape, kidnapping, sodomy, and theft against A.J. (C. 346-48;CC-20-1378;CC-20-1379;CC-20-1380;andCC-20-1381.)The State moved that the cases be consolidated for trial.After a hearing, the circuit court granted that motion.The jury convicted Bester of the rape and kidnapping of K.S., and sexual abuse as a lesser-included offense of rape, kidnapping, and theft of A.J.The jury found Bester not guilty of sodomizing A.J.(CC-20-1380.)

The State’s evidence tended to show the following: K.S. testified that in January 2019she was at a convenience store to meet a drug dealer and Bester was at the store at the same time.K.S. said that she had seen Bester a couple of times before and that when her dealer failed to show up Bester offered her a ride to the dealer’s house.(R. 306.)On the way, they stopped at Beater’s house in Pratt City.Bester, she said, told her that he had to get something from the house, and she went inside and sat down.Bester came up to her, she said, and "he told me whenever he wants to, he’s going to get it, and he slammed me on the bed."(R. 309.)The following occurred:

"[Prosecutor]: Did he say anything to you?

"[K.S.]: He smacked me.

"[Prosecutor]: What did he do after he smacked you?

"[K.S.]: He stalled ripping my clothes off.

"[Prosecutor]: What happened next?

"[K.S.]: He ripped my clothes off, and he had sexual intercourse with me.

"[Prosecutor]: Did you ask him to stop?

"[K.S.]: Yes, ma’am.

"[Prosecutor]: What, if anything, did he say when you asked him to stop?

"[K.S.]: He told me no and he beat me.Told me to shut up.Every time I would say something he would hit me.

"[Prosecutor]: How long do you think that took, that sexual intercourse?

"[K.S.]: I don’t know.I don’t know.

"[Prosecutor]: What happened when it was over?

"[K.S.]: He made me lay on the bunk bed that he had like tied down and he told me if I tried to move he would kill me.

"….

"[Prosecutor]: Did he say anything about you leaving that house?

"[K.S.]: He just told me I wasn’t going nowhere.I was his.I belonged to him.He’s going to make me have his babies."[Prosecutor]: How long were you in that house?

"[K.S.]: Almost three days.

"[Prosecutor]: Were you ever allowed to leave?

"[K.S.]: No, ma’am.

"….

"[Prosecutor]: You said you were there three days.How did you get away?

"[K.S.]: Every time he would go out he would lock the door.And on the third day, he went out.And I heard the door fall open and peeked out the window, and I seen him go in the house next door.And when I went to go out the door, his phone -- I grabbed his phone and took off running.And I ran and ran and I called my mom and my mom called my cousin, Pam, and I hid by a church probably about three or four miles up until my cousin found me."

(R. 309-312.)

Stephanie Cacioppo, a former nurse,² testified that she examined K.S. and conducted a forensic examination.She testified that K.S. had abrasions, bruising, and blood in her vagina, which, she said, was consistent with some type of trauma.(R. 342.)

A.J. testified that she had known Bester since they were young and were in school together.She said that they began sending each other messages on Facebook, and in March 2019he offered to drive her from her home in Anniston to Birmingham.(R. 192.)She said that Bester picked her up at her house and that another man she knew only as "40" was in the car with Bester.They stopped at a gas station in Irondale and A.J. went inside to use the restroom.When she returned to the car, she said, "everything went to hell."(R. 193.)A.J. said that Bester hit her with her cellular telephone and that she went in and out of consciousness.(R. 195.)Bester first took A.J. to his mother’s house in Pratt City; Bester’s house was next door to his mother’s.A.J. said that Bester hit her with everything that he could get his hands on, that he kicked her in the head, and that she had boot prints on her side.(R. 198.)A.J. testified:

"[Prosecutor]: And so you said he hit you with that and boots.Did you ask him to stop or beg him to or anything?

"[A.J.]: That’s all I was doing."[Prosecutor]: What was he saying when he was beating you?

"[A.J.]: Don’t know.My ears were ringing.All I know is I was trying to leave, and I couldn’t go and was told I wasn’t going anywhere.

"[Prosecutor]: Did he ever try to have sex with you?

"[A.J.]: He did.

"[Prosecutor]: Did he have sex with you?"[A.J.]: He did.

"[Prosecutor]: Did you try to tell him to stop or anything like that?

"[A.J.]: Yes, fought, tried to bite him, kicking, screaming.

"[Prosecutor]: Did he have sex with you more than once?

"[A.J.]: He tried.

"….

"[Prosecutor]: Was there anything else that he did, I guess, to your person or to your body?

"[A.J.]: Well, besides beating, besides raping me, besides breaking a broomstick in half.

"[Prosecutor]: Well, how -- tell me about this broomstick.

"…

"[A.J.]: After the first time, I don’t know what he got high off of.But apparently, it wasn’t working anymore.He couldn’t perform.So a broomstick was broken and tried to be inserted in me.I had cuts on the inside of my legs.I was actually able to block that.

"[Prosecutor]: I know that we talked about -- I guess I need to get explicit.I do.We talked about him having sex with you.Did he -- or was there any other kind of penetration?

"[A.J.]: Oral, anal, vaginal.

"[Prosecutor]: And every time that he penetrated you during this time period, were you asking him to stop, trying to get him to stop?

"[A.J.]: Yeah.

"[Prosecutor]: Now, I want to talk to you about this time period.Did this all happen in one night?

"[A.J.]: I don’t think so because I woke up -- like I said, I kept going in and out of consciousness.And when I finally woke up, he was trying to get me to leave because he was trying to get money off my card.

"….

"[Prosecutor]: So I do want to talk about that.So you said you left.Where did y’all go?

"[A.J.]: To Easy Money."

(R. 198-203.)

Jessica Stott, a nurse and a sexual assault nurse examiner ("SANE") at the Crisis Center in Birmingham testified that in March 2019she conducted a forensic examination on A.J. Stott testified that A.J. had extensive bruising to her chest, back, and abdomen, scratches, lacerations, marks on her neck, swollen eyes, and her teeth and mouth were bloody.Photographs taken of A.J. showed that A.J. had numerous injuries to her body and face.Stott testified that she attempted to conduct an internal examination but A.J. told her that it was too painful for her to use the instrument.

In his original brief to this Court and in his reply brief, Bester raises the following issues.

I.

[1] Bester first argues that the circuit court erred in granting the State’s motion to consolidate for trial the charges against Bester involving the two victims.³Specifically, he argues that consolidating the cases resulted in extreme prejudice to him and denied him a fair trial.

The record shows that approximately two weeks before trial the State moved to consolidate the cases involving K.S. and A.J. pursuant to Rule 13.3(c), Ala. R. Crim. P.⁴It asserted that the cases were of the same or similar character, that they were connected in their commission, and that they were "part of a common scheme or plan."(C. 550.)Bester filed an objection to consolidating the cases.In the objection, Bester argued:

"[T]he benefits of judicial economy do not outweigh the prejudice that would result to Mr. Bester should such cases be consolidated.Consolidation would prejudice Mr. Bester in that each of the two groups of cases is based on a separate alleged incident, but the jury would wrongfully conclude that this is a continuing course of conduct and that Mr. Bester had a propensity, i.e., character, for such conduct.Such is forbidden under Ala. R. Evid. R. 404.Joining such offenses would essentially create an end run around this well-established constraint and would lead to the jury being unfair finders of fact at Mr. Bester’s trial.

"The requested joinder/consolidation would also create an onerous burden on the defense to try to disprove allegations against Mr. Bester in one setting before one jury.This would be so prejudicial as to effect burden shifting."

(C. 563.)A hearing was held on the motion.(R. 7-21.)At the hearing, the State argued:

"So these offenses, all of them happened, first of all, within about a two-month span.First offense, those are case numbers 20 -- let me make sure I’m doing the right case numbers, Judge - 2022-1376 and 1377 involve one victim.And the remaining charges all involve the second victim.The first two case numbers involve the incident that happened in January, and then the rest of them happened in March of 2019.There is a month in between that, obviously, where this defendant, my understanding, was in the hospital.So

...