Lucas v. State

• Citation: 204 So.3d 929
• Decision Date: 29 April 2016
• Docket Number: CR–14–0744.
• Parties: Brian Frederick LUCAS v. STATE of Alabama.
• Court: Alabama Court of Criminal Appeals

204 So.3d 929

Brian Frederick LUCAS

v.STATE of Alabama.

CR–14–0744.

Court of Criminal Appeals of Alabama.

April 29, 2016.

William L. Pfeifer, Jr., Birmingham; and Richard Douglas Jensen, Huntsville, for appellant.

Luther Strange, atty. gen., and Stephen N. Dodd, asst. atty. gen. for appellee.

KELLUM, Judge.

The appellant, Brian Frederick Lucas, was convicted of attempted sodomy in the first degree, a violation of §§ 13A–4–2 and 13A–6–63(a)(1), Ala.Code 1975, and sexual abuse in the first degree, a violation of § 13A–6–66, Ala.Code 1975. The circuit court sentenced Lucas to 15 years' imprisonment for the attempted-sodomy conviction; that sentence was split, and he was ordered to serve 3 years' imprisonment followed by 3 years' supervised probation. The circuit court sentenced Lucas to 7 years' imprisonment for the sexual-abuse conviction; that sentence was also split, and he was ordered to serve 3 years' imprisonment followed by 3 years' supervised probation. The circuit court ordered that the sentences were to run concurrently. The circuit court further ordered Lucas to pay $1,000 in fines, $200 to the crime victims compensation fund, and court costs.

The evidence presented at trial established the following pertinent facts. 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, rubbing it." (R. 173.) 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 having anal 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.

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 and went 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.

After both sides rested and the circuit court instructed the jury on the applicable principles of law, the jury found Lucas guilty of attempted sodomy in the first degree and sexual abuse in the first degree. Lucas filed a timely motion for new trial, which the circuit court denied. This appeal followed.

I.

Lucas first contends that the circuit court erred in denying his motion for a judgment of acquittal on the charge of sexual abuse in the first degree because, he argues, the State failed to prove that he made contact with an intimate part of the alleged victim.¹ Specifically, Lucas contends that the nose and upper lip of the victim were not "intimate parts" because "they are not in close proximity to the primary sexual areas." (Lucas's brief, p. 46.)

" ‘ "In determining the sufficiency of the evidence to sustain a conviction, a reviewing court must accept as true all evidence introduced by the State, accord the State all legitimate inferences therefrom, and consider all evidence in a light most favorable to the prosecution." ’ Ballenger v. State, 720 So.2d 1033, 1034 (Ala.Crim.App.1998), quoting Faircloth v. State, 471 So.2d 485, 488 (Ala.Crim.App.1984), aff'd, 471 So.2d 493 (Ala.1985). ‘ "The test used in determining the sufficiency of evidence to sustain a conviction is whether, viewing the evidence in the light most favorable to the prosecution, a rational finder of fact could have found the defendant guilty beyond a reasonable doubt." ’ Nunn v. State, 697 So.2d 497, 498 (Ala.Crim.App.1997), quoting O'Neal v. State, 602 So.2d 462, 464 (Ala.Crim.App.1992). ‘ "When there is legal evidence from which the jury could, by fair inference, find the defendant guilty, the trial court should submit [the case] to the jury, and, in such a case, this court will not disturb the trial court's decision." ’ Farrior v. State, 728 So.2d 691, 696 (Ala.Crim.App.1998), quoting Ward v. State, 557 So.2d 848, 850 (Ala.Crim.App.1990). ‘The role of appellate courts is not to say what the facts are. Our role ... is to judge whether the evidence is legally sufficient to allow submission of an issue for decision [by] the jury.’ Ex parte Bankston, 358 So.2d 1040, 1042 (Ala.1978).

" ‘The trial court's denial of a motion for judgment of acquittal must be reviewed by determining whether there was legal evidence before the jury at the time the motion was made from which the jury by fair inference could find the defendant guilty. Thomas v. State, 363 So.2d 1020 (Ala.Cr.App.1978). In applying this standard, this court will determine only

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