A. Trial Court Proceedings On September 26, 2014, a Madison County grand jury indicted Lucas for four sex offenses. (Doc. 8-1 at 82-85). Count 1 charged attempted sodomy in the first degree, alleging that Lucas attempted to engage in deviate sexual intercourse by forcible compulsion, see Ala. Code §§ 13A-6-63(a)(1) and 13A-4-2. (Id. at 83). Count 2 charged sexual abuse in the first degree, alleging that Lucas had subjected the victim to sexual contact while physically helpless or mentally incapacitated, in violation of Ala. Code § 13A-6-66(a)(2). (Id.) Both of those counts identified the victim as H.B.2 (id.), whose older sister was formerly married to Lucas. When the incident underlying the charges occurred on the morning of December 31, 2013, H.B. was 15 years old. See Lucas v. State, 204 So. 3d 929, 932, 937 (Ala. Crim. App. 2106). Counts 3 and 4 of the indictment both also charged Lucas with sexual abuse in the first degree in violation of § 13A-6-66(a)(2), but against a different victim, M.C., also a minor female. (Id.)
Lucas moved for separate trials, arguing that consolidating the offenses against both victims would result in the jury hearing evidence of collateral bad actsthat Lucas posited would be inadmissible under Rule 404(b), Ala. R. Evid. (Doc. 8-1 at 52-54). The trial court granted the motion (id. at 72-73), and on February 9, 2015, Lucas, represented by retained counsel Richard D. Jensen, went to trial on just the first two counts of the indictment, involving his alleged offenses against H.B. The Alabama Court of Criminal Appeals ("ACCA") summarized the State's evidence at trial as showing the following facts related to Lucas and H.B., as follows:
S.B. has three daughters—A.B., K.B., and H.B. A.B., S.B.'s oldest daughter, married Lucas in 2007; they had one child, L.L., and later divorced. Lucas subsequently married a woman named Autumn. A.B. maintained primary physical custody of L.L. following her divorce from Lucas. L.L. stayed with S.B. several nights a week when A.B. worked third shift as a nurse at a Huntsville hospital. Lucas would sometimes visit L.L. while L.L. was spending the night at S.B.'s house.
On December 31, 2013, at approximately 3:30 a.m. S.B. received a telephone call from Lucas, who asked if he could come to S.B.'s house "to talk." S.B. testified that she believed Lucas was intoxicated when he telephoned her. S.B. told Lucas he could come to the house; Lucas arrived less than 10 minutes later. S.B. listened to Lucas talk about problems he was having with his second wife at the time. S.B. believed it was in Lucas's best interests not to drive home because he had been drinking, so she told Lucas that he could spend the night. Lucas got into bed, fully clothed, with his son, L.L., who was sleeping in S.B.'s bed. S.B. went to sleep in a guest bedroom.
H.B., who was 18 years old at the time of trial, testified that on the evening of December 30, 2013, she went to sleep in her bedroom around 10:30 p.m. H.B. testified that at approximately 6:00 a.m. on December 31, 2013, she "felt something agitating [her] face, rubbingit." (R. 173.)3 H.B. testified that she "could feel it the whole time" and that she felt it "around the base of [her] nose and [her] upper lip." (R. 173.) H.B. testified that she slowly started to wake up and saw an erect penis in her face and the silhouette of a man holding it. H.B. immediately pulled back and covered her mouth with her hands. H.B. testified that it was dark in the room and that she could not see the man's face but could see that he was bald and that he was wearing pants that had been pulled down to the top of his thighs and a belt that had been undone. After staring at each other for a few moments in silence, H.B. saw the man pull up his pants, walk out of her room, and then heard him walk into S.B.'s bedroom. H.B. followed the man into S.B.'s bedroom, turned on the bedroom light, and saw that it was Lucas. H.B. then returned to her bedroom and locked the bedroom door.
Shortly thereafter, H.B. told S.B. what had happened and then both H.B. and S.B. told A.B. about the incident after A.B. arrived home from work. S.B. telephoned the Huntsville Police Department, who then took a statement from H.B. and transported H.B. to Crisis Services of North Alabama for an interview. H.B. then went to the Madison County Children's Advocacy Center for another interview. Lucas was subsequently arrested.
H.B. testified regarding two incidents that occurred with Lucas before December 2013. H.B. testified that when she was 13 or 14 years old, Lucas telephoned her at 2:00 a.m. when he was drunk and asked if he could come over. H.B. agreed and left the door unlocked for Lucas before returning to her bed. H.B. testified that when Lucas arrived he got in bed with her, put his arm around her and said "'baby, you're so hot' about three times." (R. 184.) H.B. pushed Lucas's arm off of her and went to S.B.'s room to sleep. The second incident occurred when H.B. was 15 years old. H.B. testified that she went over to Lucas's parents' house to swim. After they swam for a couple of hours, Lucas and H.B. went inside and sat down in the living room, where Lucas searched for a pornography Web site on his computer. H.B. testified that Lucas "clicked on a video of a girl and guy havinganal sex and he said, wow, she's taking it like a champ. Most girls are like, oh, it hurts too bad. And then he closed it." (R. 186.)
Chad Smith, an investigator with the Huntsville Police Department, interviewed Lucas on January 27, 2014. An audio recording of the interview was played for the jury at trial. In his statement to police, Lucas told Smith that in the early morning hours of December 31, 2013, he woke up to find water spilled on him in the bed he was sharing with L.L. Lucas went into H.B.'s bedroom and tried to wake her up to help him clean up the water. Lucas told Smith that he shook H.B. and pinched her nose but H.B. would not wake up. Lucas then returned to S.B.'s room where he had been sleeping with L.L. According to Lucas, shortly thereafter H.B. came into the room for a moment before leaving to return to her own bedroom.
Lucas, 204 So. 3d at 932-33.
While Lucas was tried only on the two counts naming H.B. as the victim, the trial court ultimately decided to allow the State also to elicit testimony from the other victim named in the indictments, M.C., about sex-related incidents with Lucas. The ACCA summarized M.C.'s testimony as follows:
M.C., who was 19 years old at the time of trial, testified that when she was 17 and 18 years old she babysat for Lucas's ex-wife Autumn's child. On February 2, 2014, M.C. turned 18 years old. M.C., who was with her boyfriend, telephoned Lucas on her birthday and asked Lucas to obtain "some alcohol" for them. M.C. and her boyfriend drove to Lucas's house to "hang out" and drink. (R. 306.) After drinking for a couple of hours, M.C. and her boyfriend fell asleep on Lucas's couch. M.C., who was lying on the outside of the couch next to her boyfriend, was awakened when she felt fingers down the back of her pants and in her rectum. M.C. testified that her pants were pulled down. M.C. testified that she did not know whose fingers they were at the time but at first thought that her boyfriend was touching her. M.C. testified that she got up off the couch andwent to the bathroom. When she got up, M.C. saw Lucas kneeling beside the couch with his head on an ottoman that was pushed up against the couch. M.C. stated that her boyfriend was "knocked out" during this time. (R. 310.)
After she returned from the bathroom, M.C. lay back down on the couch and went back to sleep. M.C. testified that shortly thereafter she woke up again when she felt fingers inside her vagina. M.C.'s pants were pulled down below her knees. M.C. testified that she then realized that it was not her boyfriend touching her because his arm was underneath her. M.C. testified that she opened her eyes and saw Lucas kneeling over her. M.C. tried to pull away but Lucas would not stop touching her. M.C. testified that she pretended like she had to go to the bathroom again and Lucas stopped touching her. M.C. then woke her boyfriend up and they left Lucas's house.
Lucas, 204 So. 3d at 33.
The jury found Lucas guilty of both attempted forcible, first-degree sodomy and sexual abuse in the first degree, for subjecting H.B. to sexual contact while physically helpless. (Doc. 8-2 at 76, 78, 79-80). The jury was also instructed upon attempted sexual misconduct under Ala. Code § 13A-6-65(a)(3) as a lesser-included offense of the attempted first-degree sodomy charge. But having found Lucas guilty of the greater offense, the jury did not return a verdict on the lesser. (Id. at 77). The day after the court indicated that it would enter a judgment on the jury's verdict, the trial court granted a motion by the State to nolle prosse the remaining two charges of the indictment, Counts 3 and 4, relating to Lucas's alleged offenses against M.C. (Id. at 74, 89).
On March 13, 2015, the trial court sentenced Lucas to a fifteen-year term of imprisonment on the attempted first-degree sodomy conviction, split to serve three years,...
