E.L.Y. v. State

• Decision Date: 09 February 2018
• Docket Number: CR–15–0151
• Parties: E.L.Y. v. STATE of Alabama
• Court: Alabama Court of Criminal Appeals

266 So.3d 1125

E.L.Y.

v.STATE of Alabama

CR–15–0151

Court of Criminal Appeals of Alabama.

February 9, 2018

Rehearing Denied April 20, 2018

Certiorari Denied June 8, 2018

Alabama Supreme Court 1170720

Jake B. Mathews, Jr., Anniston; and Alyssa L. Enzor, Oxford, for appellant.

Luther Strange and Steve Marshall, attys. gen., and P. David Bjurberg, asst. atty. gen., for appellee.

BURKE, Judge.

E.L.Y. was convicted of first-degree sodomy, see § 13A–6–63, Ala. Code 1975, and first-degree sexual abuse, see § 13A–6–66, Ala. Code 1975. Pursuant to § 13A–5–6(d), Ala. Code 1975, E.L.Y. was sentenced to life imprisonment without the possibility of parole for the sodomy conviction because the victim was 6 years of age or less and E.L.Y. was 21 years of age or older when the offense was committed. He was also sentenced to a concurrent term of 20 years' imprisonment for the sexual-abuse conviction. This appeal follows.

The evidence presented at trial revealed the following. E.L.Y., his wife, E.Y., and their four children lived in Thailand from October 2013 until February 2014. E.L.Y. and his wife worked as missionaries. In January 2014, E.Y. walked into a room in their house and saw their six-year-old daughter, C.Y., sitting on the bed with her skirt pulled up and her underwear around her ankles. (R. 531.) E.Y. stated that she became upset and began asking "what is going on" over and over again. (R. 533.) E.L.Y. then came out of the bathroom with shaving cream on his face and said that he did not know what she was talking about. E.L.Y. then explained to E.Y. that he had been cuddling with C.Y. when C.Y. complained that his facial hair bothered her. Therefore, E.L.Y. said, he had gone into the bathroom to shave. E.Y. testified that C.Y. would not respond when she asked her what had happened. E.Y. testified that E.L.Y. became very upset when she continued to ask him about the situation.

E.Y. stated that she talked to C.Y. again later that evening. According to E.Y., C.Y. told her that E.L.Y. "licked her private parts." (R. 541.) The next day, C.Y. disclosed to E.Y. that the incident in Thailand was not the first time E.L.Y. had had inappropriate interactions with her. C.Y. told her mother that E.L.Y. licked her private parts when the family lived in "the brick house" and when they had traveled to Indiana. E.Y. testified that C.Y. referred to their house in Calhoun County, Alabama, as "the brick house."¹ (R. 543.) E.Y. then contacted their missionary team leader, Mark Bosje, and explained the situation to him.

Bosje testified that, after speaking with E.Y., he contacted E.L.Y. and asked to speak with him about the allegations. Bosje stated that E.L.Y. came to his house and that E.L.Y. initially denied everything. However, Bosje testified that "as the conversation carried on, there was a change in the direction of the conversation. [E.L.Y.] made statements such as: Well, I have been sick, and I have been on heavy medication. A little while later, [E.L.Y.] said, maybe I was half asleep and thought it was my wife." (R. 582.) Bosje testified that E.L.Y.'s responses convinced him that E.Y. and the children needed to be removed from E.L.Y.'s home and that E.L.Y. was disqualified from serving as a missionary. Bosje then took the appropriate steps to report the situation to his superiors, to place E.Y. and her children in a safe location, and to make arrangements for E.L.Y. to return to the United States.

C.Y. testified² that E.L.Y. was her father. According to C.Y., she and her family had previously lived in Alabama, Indiana, and Thailand. C.Y. testified that she and her family had been missionaries in Thailand but had returned to the United States "[b]ecause [E.L.Y.] did something bad." (R. 613.) When asked what those bad things were, C.Y. stated that E.L.Y. had touched her private parts underneath her clothing with "[h]is hand, his tongue, and his private part." (R. 615.) C.Y. specifically identified the relevant body parts on an anatomical diagram. (R. 616.) In describing the events that occurred in Thailand, including her mother's discovery of the abuse, C.Y. essentially testified to the same order of events.

C.Y. went on to testify that the incident of abuse in Thailand was not the first time E.L.Y. had touched her inappropriately. C.Y. stated that E.L.Y. had also touched her inappropriately in Indiana and Alabama. When asked about the location of the incidents in Alabama, C.Y. testified that they occurred "in Anniston at the brick house." (R. 620.) C.Y. described the abuse in Alabama as being similar to the abuse in Thailand. According to C.Y., E.L.Y. touched her "front and back" private parts underneath her clothing with his hand, tongue, and his private part. (R. 621–22.) C.Y. testified that E.L.Y. would then hold her and walk up and down the hallway praying. According to C.Y., she was six years old when the abuse occurred in Alabama.

E.L.Y. testified in his own defense and admitted to touching and sodomizing C.Y. in Thailand. E.L.Y. stated:

"And for reasons I can't really tell you, I pulled [C.Y.'s] skirt down. And eventually while we were snuggling, not just her skirt but her underwear. And I touched her with my hands. And just touched her with my hands. I touched her in the private area with my hands.

"And then eventually for reasons I can't tell you, it escalated. And I actually—I did put my mouth on her private area."

(R. 710.) E.L.Y. also testified that he inappropriately touched C.Y. with his hands when they lived in Alabama. E.L.Y. stated that he and C.Y. were playing "the tickle game" and that he began tickling C.Y. on her thigh. He then stated: "And I tickled her, and I actually tickled her in her private area. I am ashamed to tell you that. I wish I could tell you why .... And I wish I could just say I only tickled her one time .... I don't remember when, but I did tickle her again more than once." (R. 726–28.) However, despite these admissions, E.L.Y. maintained that he did not put his mouth on C.Y.'s genitals when they lived in Alabama. E.L.Y. stated: "this is the crux of my whole defense of what I am saying. I did not put my mouth on my daughter at Bynum Acres Drive.³ That did not happen. I tickled her in between her legs. I did do that." (R. 729.) E.L.Y. testified that his daughter was "not a little lying girl" but that she was mistaken about where they lived when he put his mouth on her genitals. (R. 729–30.)

E.L.Y. raises numerous issues on appeal. We will address each in turn.

Constitutional Issues

We first note that the applicable standard of review regarding E.L.Y.'s constitutional challenges to § 13A–5–6(d), Ala. Code 1975, is de novo. In State v. Adams, 91 So.3d 724, 731–32 (Ala. Crim. App. 2010), this Court noted:

" ‘Where, as here, the facts of a case are essentially undisputed, this Court must determine whether the trial court misapplied the law to the undisputed facts, applying a de novo standard of review.’ Continental Nat'l Indem. Co. v. Fields, 926 So.2d 1033, 1035 (Ala. 2005). ‘Where the appeal concerns only questions of law, "there is no presumption of correctness in favor of the trial court's judgment; this court's review of legal issues is de novo." ’ L.B.S. v. L.M.S., 826 So.2d 178, 185 (Ala. Civ. App. 2002) (quoting Morgan Bldg. & Spas, Inc. v. Gillett, 762 So.2d 366, 368 (Ala. Civ. App. 2000) ). ‘In addition, "[w]hen an appellate court interprets a statute or considers the constitutionality of a statutory provision, no presumption of correctness attaches to the trial court's interpretation of the statute." ’ Id. (quoting Monroe v. Valhalla Cemetery Co., 749 So.2d 470, 471–72 (Ala. Civ. App. 1999) ). An appellate court's ‘review of constitutional challenges to legislative enactments is de novo.’ Richards v. Izzi, 819 So.2d 25, 29 n. 3 (Ala. 2001)."

With these principles in mind, we now address E.L.Y.'s constitutional arguments.

I.

As noted, E.L.Y. was sentenced to life imprisonment without the possibility of parole pursuant to § 13A–5–6(d), Ala. Code 1975, which provides: "[I]n all cases where an offender is convicted of a sex offense pursuant to Section 13A–6–61, 13A–6–63, or 13A–6–65.1, when the defendant was 21 years of age or older and the victim was six years of age or less at the time the offense was committed, the defendant shall be sentenced to life imprisonment without the possibility of parole." E.L.Y. argues on appeal, as he did at trial, that this statute "violates the Eighth Amendment to the U.S. Constitution as per the Fourteenth Amendment and Article I Section 15 of the Alabama Constitution in that it mandates a life without parole sentence for a first time sex offender." (E.L.Y.'s brief, at 31.) According to E.L.Y., the resulting sentence constitutes cruel and unusual punishment as applied to him and "categorically to all first time sex offenders who are 21 years of age or older and whose victims are 6 years of age or less." Id. The basis of E.L.Y.'s argument is his contention that his sentence is grossly disproportionate to his crime.

In Lane v. State, 66 So.3d 830, 831 (Ala. Crim. App. 2010), this Court noted:

" ‘The Eighth Amendment ... contains a "narrow proportionality principle" that "applies to noncapital sentences." ’ Ewing v. California, 538 U.S. 11, 17, 123 S.Ct. 1179, 155 L.Ed.2d 108 (2003), quoting Harmelin v. Michigan, 501 U.S. 957, 996–97, 111 S.Ct. 2680, 115 L.Ed.2d 836 (1991). We recognized this limited principle in Wilson v. State, 830 So.2d 765 (Ala. Crim. App. 2001)."

In Wilson v. State, 830 So.2d 765 (Ala. Crim. App. 2001), this Court entertained a challenge to the constitutionality of a mandatory life-without-parole sentence for a drug-trafficking conviction. Before undertaking that analysis, this Court stated:

"At the outset, we acknowledge that determinations regarding the punishments to be imposed for different crimes are purely legislative. E.g., Rummel v. Estelle, 445 U.S. 263, 275–76, 282–84, 100 S.Ct. 1133, 63 L.Ed.2d 382 (1980) ; Rocker v. State, 443 So.2d 1316, 1322 (

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