Williams v. State

• Decision Date: 02 July 2015
• Docket Number: CR–12–1385.
• Citation: 184 So.3d 1064
• Court: Alabama Court of Criminal Appeals
• Parties: Dewayne WILLIAMS v. STATE of Alabama.

184 So.3d 1064

Dewayne WILLIAMS

v.STATE of Alabama.

CR–12–1385.

Court of Criminal Appeals of Alabama.

July 2, 2015.

Blanchard L. McLeod, Jr., Selma; Jan Garrison Thompson, Selma; and Bryan A. Stevenson, Randall S. Susskind, and Erica Ann Selig, Montgomery, for appellant.

Luther Strange, atty. gen., and Michael A. Nunnelley, asst. atty. gen., for appellee.

On Application for Rehearing

PER CURIAM.

This Court's opinion issued on June 13, 2014, is withdrawn, and the following is substituted therefor.

The appellant, Dewayne Williams, was indicted by a Dallas County grand jury for one count of sodomy in the first degree, a violation of § 13A–6–63, Ala.Code 1975. Following a jury trial, Williams was convicted of the lesser-included offense of sexual misconduct, a violation of § 13A–6–65(a)(3), Ala.Code 1975. The circuit court sentenced Williams to 12 months in the Dallas County jail; that sentence was split and Williams was ordered to serve 12 months in jail followed by 2 years of supervised probation. The circuit court ordered Williams to pay $100 to the Crime Victims Compensation Fund, to reimburse the State for the cost of his court-appointed attorney, and to pay court costs. This appeal followed.

The record on appeal established the following pertinent facts. At 3:00 p.m. on January 10, 2010, A.R., who was 23 years old at the time, began working his shift as a clerk at the Jameson Inn motel in Selma. Williams was sitting in the lobby of the motel. Williams left the lobby but returned around 4:15 p.m. and resumed sitting in the lobby. Williams was going to be charged for another night's stay in the hotel because he had failed to check out of the hotel before 11:00 a.m.; A.R. asked Williams whether he wanted the key to his room back. Williams said that he was still deciding on whether he was going to stay another night, and he left the motel. When Williams returned he resumed sitting in the lobby. Williams approached A.R. at the front desk and reported that he was not receiving the A & E channel on the television in his room. A.R. got a television remote control and walked to the breakfast room in the motel to see if the television in that area was receiving the A & E channel. Williams followed A.R. into the breakfast area.

As A.R. was changing channels on the television in the breakfast area, Williams touched A.R.'s thigh. A.R. stepped back, told Williams, "no," and Williams again tried to touch A.R.'s leg. (R. 107.) After he determined that the motel was not receiving the A & E channel, A.R. heard the motel's facsimile machine ring. A.R. told Williams that he would contact the cable company; he then left the breakfast room to go to the office. After entering the motel office, A.R. turned around to shut the door completely when Williams grabbed A.R. by his throat and pushed him into the bathroom in the office. Williams told A.R. to not say anything or scream and that if A.R. did, Williams would choke A.R. harder. Williams locked the bathroom door and told A.R. "to take [Williams's] pants down and take [A.R.'s pants] down and pretty much grope him and cause him to [become] erect." (R. 113.) A.R. complied. Williams told A.R. to bend over and, after A.R. bent over a mop bucket, Williams proceeded to sodomize A.R. While sodomizing him, Williams bit A.R. on the neck and asked him, "Where were you last night?" (R. 114.) After Williams finished, he "told [A.R.] to open the door and see if anybody was in the lobby." (R. 115.) After A.R. verified that no one was in the motel lobby, the men walked out of the bathroom, and A.R. went to his desk. For the next 45 minutes Williams "hovered around" A.R. and then returned to the lobby. (R. 116.)

After Williams left the office of the motel, A.R. sent a text message to one of his coworkers, asking her to come to the motel. The coworker came to the motel and, after Williams left the lobby, A.R. told her what Williams had done. The next day A.R. told his mother what had happened and the police were notified. A.R. went to a hospital, where nurse Patricia Anthony performed a sexual-assault examination on him. Torey Williams of the Alabama Department of Forensic Sciences received the sexual-assault kit and determined that material obtained from rectal and genital swabs taken from A.R. matched a DNA sample Williams had provided.

At the close of the State's case, Williams moved for a judgment of acquittal on the grounds that the State "had failed to prove a prima facie case, failed to show sufficient evidence on forcible compulsion, ... failed to prove all the essential elements of the crime of sodomy in the first degree." (R. 215.) The State responded: "We believe that the deviate sexual intercourse is not even being challenged in this case. So the only element that we're left with is forcible compulsion." (R. 215–16.) The circuit court denied Williams's motion.

In his case-in-chief Williams presented the testimony of three character witnesses. Williams also testified in his own defense, acknowledging that he had sodomized A.R. but stating that A.R. had consented to the sodomy. At the close of all the evidence, Williams renewed his motion for a judgment of acquittal. The motion was again denied.

During the charge conference the State asked the circuit court to instruct the jury on sexual misconduct as a lesser-included offense of sodomy in the first degree. Williams argued that doing so would "disregard[ ]" the United States Supreme Court's holding in Lawrence v. Texas, 539 U.S. 558, 123 S.Ct. 2472, 156 L.Ed.2d 508 (2003), which, he said, was that "consensual homosexual conduct cannot be outlawed by a state. And that's exactly what this sexual misconduct statute does that the State's asking you to instruct the jury on." (R. 301.) The circuit court granted the State's request and instructed the jury on sexual misconduct as a lesser offense included within the offense of first-degree sodomy.

While instructing the jury, the circuit court correctly charged that, if the jury believed that A.R. had consented to the sexual encounter, it could not convict Williams of sodomy in the first degree. (R. 334–35.) After an off-the-record bench conference, the circuit court instructed the jury that "[c]onsent is not a defense to prosecute under the charge of sexual misconduct." (R. 343.)

Williams objected to the circuit court's instructions on the ground that in giving the "charge on the alleged lesser included offense of sexual misconduct ... the Court is totally disregarding the established law handed down by the United States Supreme Court in the case of Lawrence [v.] Texas, 2003."¹ (R. 343.) The jury returned a verdict of guilty on the charge of sexual misconduct.

Williams filed a written motion for a judgment of acquittal or, in the alternative, for arrest of judgment, in which he argued, among other things:

"7. ... [T]hat the Sexual Misconduct Statute under which Defendant was convicted, viz: Section 13A–6–65(a)(3), Code of Alabama 1975, is unconstitutional as applied to this Defendant.

"8. ... [T]hat said Section 13A–6–65(a)(3), is unconstitutional under the Due Process Clauses of the Fifth and Fourteenth Amendments to the United States Constitution, as applied to this Defendant.

"9. ... [T]hat said Section 13A–6–65(a)(3), is unconstitutional under the Equal Protection Clause of the Fourteenth Amendment to the United States Constitution, as applied to this Defendant.

"10. ... [T]hat said Section 13A–6–65(a)(3), is unconstitutional under the decision of the United States Supreme Court in Lawrence v. Texas, 539 U.S. 558, 123 S.Ct. 2472, 156 L.Ed.2d 508 (2003).

"11. ... [T]hat United States Supreme Court decisions regarding questions or application of the United States Constitution bind all State Courts in interpreting and applying federal constitutional law. Pennekamp v. Florida, 328 U.S. 331, 66 S.Ct. 1029, 90 L.Ed.2d 1295 (1946).

"12. ... [T]hat this Court is ‘bound by the law of stare decisis to apply the constitutional law as pronounced by the United States Supreme Court.’ State v. O'Guinn, 462 So.2d 1 [0]52 (Ala.Crim.App.1985).

"13. ... [T]hat the Court erred in charging the jury that consent was no defense to the crime of sexual misconduct.

"14. ... [T]hat the acquittal of Defendant by the jury on the offense of Sodomy in the First Degree of necessity results in any sexual contact between this Defendant and the alleged victim as consensual in nature.

"15. ... [T]hat the decision of the United States Supreme Court in Lawrence v. Texas, supra, holding that a statute making it a crime for two persons of the same sex to engage in certain intimate sexual conduct violates the due process clause of the United States Constitution."

(C. 105–06.) The circuit court denied Williams's motion. This appeal followed.

On appeal, Williams contends that his conviction for violating § 13A–6–65(a)(3), Ala.Code 1975, is due to be reversed because, he argues, that statute is unconstitutional in light of Lawrence, supra.

"The Alabama Supreme Court has discussed the principles applicable to a challenge to the constitutionality of a statute, noting first that review of a challenge is de novo. State ex rel. King v. Morton, 955 So.2d 1012, 1017 (Ala.2006). The Court stated:

" ‘[A]cts of the legislature are presumed constitutional. State v. Alabama Mun. Ins. Corp., 730 So.2d 107, 110 (Ala.1998). See also Dobbs v. Shelby County Econ. & Indus. Dev. Auth., 749 So.2d 425, 428 (Ala.1999) ("In reviewing the constitutionality of a legislative act, this Court will sustain the act ‘ "unless it is clear beyond reasonable doubt that it is violative of the fundamental law." ’ " White v. Reynolds Metals Co., 558 So.2d 373, 383 (Ala.1989) (quoting Alabama State Fed'n of Labor v. McAdory, 246 Ala. 1, 9, 18 So.2d 810, 815 (1944) )). We approach the question of the constitutionality of a legislative act " ‘ "with every presumption and intendment in favor of its validity, and seek to sustain rather than strike down the enactment of a coordinate branch of the

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