S.M.B. v. State

• Decision Date: 03 September 2021
• Docket Number: CR-18-1129
• Citation: 348 So.3d 438
• Parties: S.M.B. v. STATE of Alabama
• Court: Alabama Court of Criminal Appeals

348 So.3d 438

S.M.B.

v.STATE of Alabama

CR-18-1129

Court of Criminal Appeals of Alabama.

September 3, 2021

Dennis J. Knizley, Mobile, for appellant.

Steve Marshall, att'y gen., and Holly M. Walterscheid, asst. att'y gen., for appellee.

On Application for Rehearing

MINOR, Judge.

The opinion issued on August 14, 2020, is withdrawn, and the following opinion is substituted in its place.

S.M.B. was a freshman in college when he had sex with I.D., who was also a freshman. A few weeks later he had sexual contact with L.E., who was also a freshman. After I.D. and L.E. reported that they had not consented to the sexual encounters with S.M.B., law-enforcement officers charged S.M.B. with the first-degree rape of I.D. and with the first-degree sexual abuse of L.E.

S.M.B. was granted youthful-offender status, and the circuit court, after hearing the evidence, adjudicated S.M.B. guilty as a youthful offender under § 13A-6-65, Ala. Code 1975, of sexual misconduct for the incident involving I.D. (case no. CC-18-3537), and under § 13A-6-66(a)(1), Ala. Code 1975, of the first-degree sexual abuse of L.E. (case no. CC-18-3538).¹ This appeal followed.

S.M.B. argues that the circuit court should have granted his motion for a judgment of acquittal in each case because, he says, the State produced insufficient evidence showing that S.M.B. committed the offenses on which the circuit court based its youthful-offender adjudications. S.M.B. does not deny that he engaged in sexual conduct with I.D. and with L.E., but he says that I.D. consented to having sex with him and that L.E. did not earnestly resist the sexual contact.

We hold that the State produced sufficient evidence showing that S.M.B. committed the offense of sexual misconduct for the incident involving I.D. but that it failed to produce sufficient evidence to support the first-degree-sexual-abuse claim involving L.E. We affirm the circuit court's judgment in case no. CC-18-3537, and in case no. CC-18-3538 we reverse its judgment and render a judgment for S.M.B.

Standard of Review

"Appellate courts are limited in reviewing a trial court's denial of a motion for judgment of acquittal grounded on insufficiency." McFarland v. State, 581 So. 2d 1249, 1253 (Ala. Crim. App. 1991).

" ‘The standard of review in determining sufficiency of evidence is whether evidence existed at the time of [the defendant's] motion for acquittal was made, from which the [fact-finder] could by fair inference find the [defendant] guilty.’ Linzy v. State, 455 So. 2d 260, 261 (Ala. Crim. App. 1984) (citing Stewart v. State, 350 So. 2d 764 (Ala. Crim. App. 1977), and Hayes v. State, 395 So. 2d 127 (Ala. Crim. App.), writ denied, 395 So. 2d 150 (Ala. 1981) ). In determining the sufficiency of the evidence, we view the evidence in the light most favorable to the State. Linzy, supra."

Ex parte Burton, 783 So. 2d 887, 890-91 (Ala. 2000).

"Findings of fact based on ore tenus evidence are presumed correct, and a judgment based on those findings of fact will not be reversed unless it is clearly erroneous, manifestly unjust, without supporting evidence, or against the great weight of the evidence. Odom v. Hull, 658 So. 2d 442 (Ala. 1995). The reason for this tenet of the law, the ore tenus rule, is that the trial judge who sees and hears a witness testifying in person in court can better judge the credibility of the witness than a reviewing appellate court can judge the credibility from only the typed words in the transcript. Ex parte Walters, 580 So. 2d 1352 (Ala. 1991)."

Ex parte C.V., 810 So. 2d 700, 719 (Ala. 2001) (Johnstone, J., concurring specially). "Where the evidence raises a question of fact which, if believed by the [finder of fact] would be sufficient to sustain the conviction, the denial of a motion for acquittal or motion for new trial will not be considered error." Parrish v. State, 494 So. 2d 705, 709 (Ala. Crim. App. 1985) (citing Young v. State, 283 Ala. 676, 220 So. 2d 843 (1969) ).

Case No. CC-18-3537 (I.D.)

S.M.B. and I.D. met in the fall of 2016 when S.M.B. was a freshman at a college in Mobile and I.D. was a freshman at another college in Mobile. They had mutual friends and, until March 2017, their relationship remained casual.

I.D. testified that on Wednesday, March 1, her relationship with S.M.B. began to change. She testified that between Wednesday night and Sunday night, March 5, she and S.M.B. engaged in consensual kissing, fondling, and oral sex. (R. 27.)

On Sunday night I.D. was studying in the chemistry lab on her college's campus when S.M.B. came to the building to see her. I.D. testified that S.M.B. dropped his pants and underwear in the chemistry lab but that I.D. told him she was uncomfortable so S.M.B. put his clothes back on. They left the chemistry building together and got coffee at a gasoline service station. I.D. testified that S.M.B. drove to a park and that, while they were sitting in S.M.B.'s car at the park, she told S.M.B. that she did not want to be his girlfriend. I.D. testified that over the past few days S.M.B. had asked her several times to be his girlfriend. I.D. testified that, when she told S.M.B. that she did not want to be his girlfriend, he became "very frustrated and upset" with I.D. and "his tone was very threatening." (R. 31.) S.M.B. began driving, and I.D. tried to open the car door, but it would not open. S.M.B. drove to his parents’ house, and, although I.D. did not want to go inside, she saw other cars in the driveway and assumed that S.M.B.'s parents were home, so she went inside.

Once inside the house, I.D. and S.M.B. went into S.M.B.'s bedroom. I.D. took off her shoes and threw them against the closet so that S.M.B.'s parents would hear the noise. I.D. and S.M.B. sat on his bed, and S.M.B. asked her to reconsider dating him. I.D. refused, and S.M.B. asked her if he could have "one more kiss." (R. 36.) I.D. testified that she had "some sort of feelings for him" and that she could tell he wanted her to kiss him, so she "felt bad" and agreed to kiss him. As they kissed, S.M.B. pushed I.D. down onto the bed and began kissing her more forcefully while grabbing her body, waist, and breasts. I.D. testified that S.M.B. was partially on top of her and that, "[a]t that point, I was, like, ‘whoa, whoa, whoa. What are you doing, like, acting like that.’ " I.D. testified that she "began, like, muttering ‘no’ like very, very quietly." She said that "as it sort of progressed, I began being more forceful with it." (R. 37-38.) I.D. tried to push S.M.B. off her, but S.M.B. was much larger than her. I.D. is 5 feet 4 inches tall, and she testified that at that time she weighed 115 pounds. S.M.B. weighed 315 pounds.

I.D. testified that S.M.B. began removing their clothes. (R. 36-37.) She said that she tried to stop S.M.B. from taking off her jeans, and that she told him "whoa, whoa, stop, no." (R. 39.) I.D. testified that she did not get up and try to leave because, she said, "I had kind of become numb at this point. I kind of like reverted into myself and was just not really—just kind of like trying to wait until it was over with." She did not scream because, she said, "I couldn't find my voice." (R. 40-41.) I.D. testified that S.M.B. began choking her with one hand, and he told her that he wanted her to give him a hickey on his neck and to perform oral sex on him. I.D. testified that she was fearful for her safety and that she did "not necessarily" resist or fight back because she "wanted it to be done, to just be done." (R. 42.) I.D. gave S.M.B. a hickey and performed oral sex on him. She testified that S.M.B. grabbed her hair and head while she was giving him oral sex and that she tried to resist "[a] little bit but not much." (R. 44.) I.D. testified that S.M.B. performed oral sex on her while holding down her hips. When the State asked I.D. whether she resisted to S.M.B. giving her oral sex, she said: "Honestly, at this point, I was—I was limp at this point." (R. 45.)

I.D. testified that S.M.B. got off the bed and got a belt from his closet. She did not try to leave but she "tried to say something," but, she said, "I don't think I was able to really fully form a sentence. I was trying to say, like, ‘can we stop, just stop, please,’ just something like that and I wasn't really fully able to say anything." (R. 46.) S.M.B. tied I.D.'s hands behind her back with the belt. I.D. tried to pull her hands away and she asked him to stop. I.D. said that, although over the past few days the topic of Fifty Shades of Grey ² had come up in their conversations, bondage was "not something we had talked about wanting to try," and she said that she had been "very clear" with him that she did not want to have sex with him "of any form." (R. 46-47, 75-76.) After S.M.B. finished tying I.D.'s hands, he flipped her over and began "rubbing his penis" against her leg. I.D. testified that she was frightened and said "No, no, no. What are you doing? Stop." S.M.B. penetrated her with his penis. I.D. said that she "blacked out for a minute" and that the next thing she knew S.M.B. was away from her looking "kind of horrified." (R. 48-49.) I.D. began "hysterically sobbing" and asked S.M.B. to untie her. He untied her, and I.D. put her clothes back on. I.D. testified that S.M.B. apologized to her and said, "I'm so, so sorry. I just raped you. I'm so sorry that I did that." (R. 50-51.) I.D. asked S.M.B. to take her home, and S.M.B. drove I.D. back to her dorm room.

I.D. testified that over the next few weeks S.M.B. contacted her several times and that, although she tried to avoid him, eventually she "wanted to forget ... that night had ever happened" and "wanted to just pretend like nothing happened." (R. 53.) She testified that in the weeks after the incident in S.M.B.'s bedroom she and S.M.B. hung out together alone, including going to see a movie together, going to a restaurant, and going to get coffee together.

On cross-examination, I.D. agreed that, less than 24 hours before the incident in S.M.B.'s...