Jones v. State
| Decision Date | 29 May 2020 |
| Docket Number | CR-19-0332 |
| Parties | Detreile O'Monte Devon JONES v. STATE of Alabama |
| Court | Alabama Court of Criminal Appeals |
W. Gregory Ward, Lanett, for appellant.
Steve Marshall, atty. gen., and P. David Bjurberg, asst. atty. gen., for appellee.
The appellant, Detreile O'Monte Devon Jones, was convicted of rape in the first degree, a violation of § 13A-6-61, Ala. Code 1975; burglary in the first degree, a violation of § 13A-7-5(a)(2), Ala. Code 1975; assault in the second degree, a violation of § 13A-6-21, Ala. Code 1975, and sexual abuse in the first degree, a violation of § 13A-6-66, Ala. Code 1975. The circuit court sentenced Jones to 35 years’ imprisonment for the rape conviction, 35 years’ imprisonment for the burglary conviction, 20 years’ imprisonment for the assault conviction, and 10 years’ imprisonment for the sexual-abuse conviction. The court ordered that Jones's sentences for the rape, assault, and sexual-abuse convictions were to run concurrently but those sentences to run consecutively with the burglary conviction.
The evidence presented at trial established the following pertinent facts. In 2018, A.O. was living alone in a house in Lanier, Alabama. At some point, the electricity to the house was turned off. A.O. left the house but moved back in and began the process of restoring the electricity to the house. A.O. had "small furniture, like beds, dressers" in the house but no clothes. (R. 24.) The landlord did not know A.O. was living in the house but, A.O. testified, she intended to "call and speak with him the next day prior to the incident." (R. 25.)
Jones lived across the street from the house A.O. was living in, and A.O. had been to Jones's house on many occasions. Jones lived in the house with his girlfriend. On or about September 23, 2018, A.O. asked Jones's girlfriend if A.O. could stay with her and Jones because A.O. had no electricity and could not get it turned back on until the next day. Jones's girlfriend agreed; however, Jones had a problem with A.O. staying the night and asked A.O. to leave. With no other option, A.O. returned to the house across the street to spend the night. A.O. did not know at what time she returned to the house because her cellular telephone had been stolen, but testified that it was dark when she returned to the house.
When A.O. returned to the house, she had a pocketbook with some dirty clothes in it. A.O. laid down on a "pallet" of couch cushions to go to sleep in the front bedroom of the house when she was awakened by Jones and another man who had entered the house. (R. 33.) A.O. told both to leave and when they did she locked the door and laid back down to sleep.
Shortly thereafter, A.O. was awakened again when Jones started to come through the front bedroom window of the house where she was trying to sleep. Jones accused A.O. of stealing his girlfriend's cellular telephone. They argued "back and forth." (R. 34.) When A.O. noticed that Jones had a knife and brass knuckles, she got up and went to the living room where the front door and her sneakers were located. After she put her sneakers on, A.O. approached the front door but Jones was blocking the door. In order to avoid "things getting ugly," A.O. went back into the bedroom and sat down. (R. 34.) The argument continued in the bedroom while A.O. sat "balled up" on the couch. (R. 35.) A.O. testified:
(R. 35.)
The next thing A.O. heard was a condom wrapper opening. Jones laid down behind A.O. and inserted his penis in her vagina. A.O. testified that she "tensed up real tight" and slid her body to the front until she could feel A.O. "sliding back out of [her]." (R. 36.) A.O. laid there for "a second" and Jones stopped. (R. 36.) Jones then got up and left the house. A.O. then quickly wrapped herself in a sweater and ran out of the house to a neighbor's house where she telephoned emergency 9-1-1. The police arrived quickly and A.O. was transported to a hospital where a sexual-assault nurse examiner performed a rape kit. A.O. also received treatment for the cut on her leg that required 13 staples and resulted in an "ugly" permanent scar. (R. 41.) At the State's request, A.O. showed the jury the scar during trial.
A.O. testified that she did not give Jones permission to have sex with her and that she gave Jones no reason to think that the sex was consensual. A.O. stated that she did not try to fight Jones off because Jones had a knife and brass knuckles. A.O. testified that she was wearing "leggings" when Jones attacked her. (R. 38.) While Jones was cutting the leggings off, he touched A.O.'s bottom with his hands.
On cross-examination, A.O. testified that she had known Jones a "fairly good while" and that they spoke "on an everyday basis." (R. 50.) A.O. admitted that she had been arrested in 2015 for unlawful possession of a controlled substance. When asked if Jones had anything to do with the drugs A.O. was arrested with in 2015, A.O. answered in the affirmative. A.O. denied that she ever had a sexual relationship with Jones. A.O. admitted that she had used drugs with Jones the week before the incident but testified that she was not using drugs or alcohol at the time of the incident. A.O. testified that Jones cut her clothing off from the top to the bottom, including the tight leggings that she was wearing at the time. A.O. testified that she did not "think [Jones] meant to cut [her] on purpose" and that the "knife scraped [her] skin while he was cutting [her] pants off." (R. 60.)
On redirect, a photograph of A.O.'s leg wound
was admitted into evidence. A.O. testified that she did not see the knife Jones used but knew it was a pocket knife because "he kept opening and closing it", and "kept clicking it." (R. 72.) A.O. testified that Jones intentionally removed her clothing but did not believe her when she told him that she had been cut and thought that she was lying. Jones argued with A.O. about whether he had cut her. A.O. testified that she had been drug free for a "whole year." (R. 76.)
Sgt. Robert Waldrop with the Lanett Police Department was assigned to investigate the incident. Sgt. Waldrop took photographs of the inside and outside of the house were the incident occurred. In the front bedroom, Sgt. Waldrop found a used condom, condom wrapper, blood, cut clothing, couch cushions, and A.O.'s pocketbook. Sgt. Waldrop went to the hospital and met with A.O. At first, when Sgt. Waldrop met with A.O., A.O. appeared upset and "shut down emotionally." (R. 115.) A.O. did not make eye contact with Sgt. Waldrop and was not forthcoming with information. Later, after the sexual-assault examination was completed, A.O. made eye contact with Sgt. Waldrop and stated that she was grateful for the assistance of police. After being advised of his Miranda 1 rights, Jones declined to give a statement to police. Sgt. Waldrop recovered a blue pocket knife from Jones's pocket. The knife was submitted to the Alabama Department of Forensic Sciences but the mixture of DNA on the knife blade was not "suitable for comparison purposes." (R. 139-40.)
Jones testified on his own behalf at trial. Jones testified that he and A.O. had used methamphetamine together. According to Jones, A.O. exchanged sex for drugs. Jones testified that on September 23, 2018, A.O. told him to meet her at the house across the street to have sex. Jones testified that he had consensual sex with A.O. and denied cutting A.O. with a knife. Jones testified that he left A.O. after they had sex to get some drugs but that he never returned.
After both sides rested and the circuit court instructed the jury on the applicable principles of law, the jury found Jones guilty of first-degree rape, first-degree burglary, second-degree assault, and sexual abuse in the first degree. This appeal followed.
Jones first contends that there was a fatal variance between the indictment charging him with assault in the second degree under § 13A-6-21(a)(2) and the evidence presented at trial. Specifically, Jones contends that the indictment charged, in pertinent part, that Jones "did with intent to cause physical injury to another person, cause physical injury to another person ... by cutting [A.O.] with a knife" but the evidence at trial showed that Jones did not intentionally cut A.O. (Jones's brief, p. 8.) Jones cites three instances at trial when A.O. testified that she did not believe that Jones meant to cut her on purpose. The record indicates that Jones never raised this issue before the circuit court but presents this argument for the first time on appeal.
Spradley v. State, 128 So. 3d 774, 795 (Ala. Crim. App. 2011).
Because Jones did not first raise this issue in the circuit court and preserve the issue he now raises on appeal, he is not entitled to any relief.
To the extent Jones argues that the circuit court erred by denying his motion for a judgment of acquittal based on the State's failure to present evidence that Jones intended to cause physical injury, Jones is not entitled to relief.
To continue reading
Request your trial