Opinion
CR-20-0568.
02-11-2022
Tonicikiya Jamar ANDERSON v. STATE of Alabama.
Sondra A. Dempsey , Mobile, for appellant. Steve Marshall , att'y gen., and Stephen N. Dodd , asst att'y gen., for appellee.
Sondra A. Dempsey , Mobile, for appellant.
Steve Marshall , att'y gen., and Stephen N. Dodd , asst att'y gen., for appellee.
McCOOL, Judge.
Tonicikiya Jamar Anderson appeals his conviction for first-degree sodomy, a violation of § 13A-6-63, Ala. Code 1975, for which he was sentenced to life imprisonment.
Facts and Procedural History
In December 2018, a Mobile County grand jury returned an indictment charging Anderson with first-degree sodomy under § 13A-6-63(a)(3) based on the allegation that Anderson, being 16 years old or older, had engaged in sexual deviate intercourse with J.A., who was less than 12 years old.
Before trial, the State filed notice of its intent to proceed under the Habitual Felony Offender Act. See § 13A-5-9, Ala. Code 1975. According to the State, in 2009 Anderson had been convicted of two counts of second-degree assault, a violation of § 13A-6-21, Ala. Code 1975.
On March 2, 2021, the trial court held a pretrial hearing to address various motions. Although the State had not indicated that it intended to use Anderson's 2009 convictions during the guilt phase of trial, defense counsel preemptively argued that those convictions might be admissible for impeachment if Anderson testified but that the State was "not allowed to go into what he was actually charged with" as to those convictions. (R. 14.) According to defense counsel, in one of those prior cases, Anderson had been charged with sexual abuse of a child less than 12 years old, a violation of § 13A-6-69.1, Ala. Code 1975, but had pleaded guilty to second-degree assault. In response, the State argued that, if Anderson testified, the State "would have the full ability to talk about those convictions." (R. 17.) The parties ultimately agreed to file motions on the issue, and the trial court stated that it would revisit the issue before trial began on March 8, 2021.
On March 4, 2021, defense counsel filed a motion in limine in which he further developed the argument he had raised at the March 2 hearing. According to defense counsel, any references to the fact that Anderson had previously been charged with sexual abuse of a child were inadmissible under Rule 404(a), Ala. R. Evid., which prohibits evidence of a person's character for the purpose of proving conformity therewith on a particular occasion. In addition, defense counsel argued that the probative value of such evidence was substantially outweighed by its prejudicial effect and was therefore inadmissible under Rule 403, Ala. R. Evid., which provides that relevant evidence is inadmissible "if its probative value is substantially outweighed by the danger of unfair prejudice."
The next day, which was three days before Anderson's trial began, the State filed notice of its intent to present evidence indicating that Anderson had been charged with sexual abuse of a child in 2009 and that the basis for that charge was that Anderson had "fondled" a six-year-old child's penis. (C. 63.) According to the State, such evidence was relevant to Anderson's motive to sodomize J.A. and was therefore admissible under Rule 404(b), Ala. R. Evid., which provides that evidence of a defendant's prior bad acts is admissible for limited purposes, including motive.
The State's motion indicated that the alleged victim in the 2009 case was 10 years old, but evidence at trial indicated that he was 6 years old.
At a pretrial hearing on the first day of trial, the trial court addressed Anderson's motion in limine. In addition to the arguments he had raised in that motion, defense counsel argued that the State had not provided timely notice of its Rule 404(b) evidence and that, as a result, any references to Anderson's 2009 sexual-abuse charge were inadmissible. In response, the State argued that it was only required to provide notice of its Rule 404(b) evidence if Anderson requested such notice, which, the State said, he had not done. The trial court did not rule on the issue at that time but, instead, stated that it would proceed with voir dire and would issue a ruling before the State began presenting its evidence the next day.
The next morning, the trial court revisited the Rule 404(b) issue, beginning with whether the State's notice was timely. Once again, the State argued that Anderson had not requested notice of any Rule 404(b) evidence and that, as a result, it was not required to provide him with such notice. In response, defense counsel did not dispute that he had not requested notice of the State's Rule 404(b) evidence, but he argued that the State should have disclosed that evidence pursuant to a general discovery order that the trial court had issued in December 2018. Although the trial court did not expressly rule on the timeliness issue, the court apparently rejected defense counsel's argument, ruling that it was "going to let [the State] use [the Rule 404(b) evidence] for the purpose of motive." (R. 167.)
The case then proceeded to trial, where the evidence tended to establish the following facts. At the time of the events giving rise to this case, J.A. was 6 years old and was living in deplorable conditions with approximately 15 other people, including his mother and Anderson, who was J.A.'s mother's boyfriend at that time. J.A., who was 10 years old at the time of trial, testified that, while he was preparing to take a bath one day, Anderson came into the bathroom and "stuck his penis in [J.A.'s] butt." (R. 328.) J.A.'s two brothers, who were 13 years old and 11 years old at the time of trial, testified that they had witnessed Anderson sodomize J.A. As noted, to establish Anderson's motive to commit that crime, the State elicited testimony regarding Anderson's 2009 sexual-abuse charge. Specifically, Detective Horace Jackson of the Prichard Police Department testified that, during his investigation of the 2009 charge, Anderson had confessed to him that he "did touch the [six-year-old] victim ... on his penis." (R. 258.) Immediately after Det. Jackson provided that testimony, the trial court instructed the jury that it could not consider Det. Jackson's testimony "as proof that Anderson acted in conformity with that on this occasion" but, instead, could use his testimony only as "evidence ... of motive." (R. 258-59.)
As noted, Anderson was convicted of first-degree sodomy and was sentenced to life imprisonment. Anderson provided oral notice of appeal at the sentencing hearing, and Anderson's arguments on appeal are directed solely at the admissibility of the State's Rule 404(b) evidence.
Standard of Review
"`The question of admissibility of evidence is generally left to the discretion of the trial court, and the trial court's determination on that question will not be reversed except upon a clear showing of abuse of discretion.' Ex parte Loggins, 771 So.2d 1093, 1103 (Ala. 2000). This is equally true with regard to the admission of collateral-bad-acts evidence[, i.e., Rule 404(b) evidence]. See Davis v. State, 740 So.2d 1115, 1130 (Ala. Crim. App. 1998). See also Irvin v. State, 940 So.2d 331, 344-46 (Ala. Crim. App. 2005)."
Windsor v. State, 110 So.3d 876, 880 (Ala. Crim. App. 2012).
Discussion
On appeal, Anderson raises multiple challenges to the admissibility of the State's Rule 404(b) evidence, i.e., the evidence indicating that he had sexually abused a six-year-old child in 2009.
First, Anderson argues that the State's Rule 404(b) evidence was inadmissible because, he says, the State did not provide timely notice of its intent to present such evidence. However, Rule 404(b) states:
"Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show action in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident, provided that upon request by the accused, the prosecution in a criminal case shall provide reasonable notice in advance of trial, or during trial if the court excuses pretrial notice on good cause shown, of the general nature of any such evidence it intends to introduce at trial."
(Emphasis added.) Thus, under the plain language of Rule 404(b), the State is not required to provide notice of its Rule 404(b) evidence unless the defendant requests such notice. As the Alabama Supreme Court has held:
"The language of Rule 404(b) states that, in order for the prosecution to be required to `provide reasonable notice in advance of trial' of its intent to offer
evidence of collateral bad acts considered relevant for particular purposes, the accused's request must be made before trial. Additionally, the request should be served on the prosecution and, as customary in criminal cases, the request should be in writing."
Ex parte Davis, 875 So.2d 276, 278 (Ala. 2003). See also United States v. Aguilar, 59 F. App'x 326, 328 (10th Cir. 2003) (not selected for publication in the Federal Reporter) (noting that, under Rule 404(b), Fed. R. Evid., "pretrial notice is required only when the defense requests such advance notice" and citing other jurisdictions in accord).
"Federal cases construing the Federal Rules of Evidence are considered persuasive authority for Alabama state courts construing the Alabama Rules of Evidence." Municipal Workers Comp. Fund, Inc. v. Morgan Keegan & Co. , 190 So.3d 895, 909 n.3 (Ala. 2015).
Here, the record indicates that Anderson did not file a request for the State to provide notice of any Rule 404(b) evidence it intended to present. In fact, Anderson concedes that he did not file such a request. (Anderson's brief, p. 18.) Nevertheless, Anderson argues that the State was required to provide notice pursuant to the trial court's general discovery order issued in December 2018. However, the discovery order does not mention Rule 404(b) evidence (C. 9-11) — a fact Anderson also concedes (Anderson's brief, p. 18) — and Anderson cites no authority providing that a general discovery order obligates the State to provide notice of its Rule 404(b) evidence. Thus, because Anderson did not request notice of any Rule 404(b) evidence that the State intended to present, the State was under no obligation to provide Anderson with such notice. See Aguilar, 59 F. App'x at 328 (holding that the government "was not obligated to provide pretrial notice" of its intent to present Rule 404(b) evidence because the defendant "did not request reasonable pretrial notice of the government's intention to rely on prior bad acts evidence during trial"). Regardless, the State provided Anderson with such notice three days before trial, and Anderson does not explain why that three-day notice was unreasonable or how he was prejudiced by the allegedly untimely notice. (Anderson's brief, pp. 17-22.) See United States v. Watson, 409 F.3d 458, 465-66 (D.C. Cir. 2005) (finding no error in the admission of Rule 404(b) evidence that was not disclosed until the morning of voir dire because the defendant had not demonstrated that he was prejudiced by the allegedly untimely notice); and United States v. Williams, 792 F.Supp. 1120, 1133 (S.D. Ind. 1992) ("[N]o specific time limits are stated in [Rule 404(b)] and instead `what constitutes a reasonable ... disclosure will depend largely on the circumstances.'" (citation omitted)). Thus, for those reasons, we conclude that the trial court did not abuse its discretion by refusing to exclude the State's Rule 404(b) evidence based on the timing of the State's notice of such evidence.
Turning to his next ground for excluding the State's Rule 404(b) evidence, Anderson does not argue that the evidence was not relevant to his motive to sodomize J.A., which, as noted, is one of the limited exceptions for which prior-bad-acts evidence is admissible. See Rule 404(b). Rather, Anderson argues that the State's Rule 404(b) evidence was inadmissible under Rule 403 because, he says, its probative value was substantially outweighed by its prejudicial effect. Regarding the admissibility of Rule 404(b) evidence, this Court has stated:
"Even though evidence of a collateral bad act fits into one or more of the exceptions to the general rule of exclusion so the act may be admissible, that alone does not render it admissible at trial. For collateral-act evidence to be
admissible for one of the `other purposes' in Rule 404(b), there must be a real and open issue as to that other purpose. E.g., Draper v. State, 886 So.2d 105, 117 (Ala. Crim. App. 2002). This Court has stated that `not only must it be determined that the other offenses are material and relevant to an issue other than the character of the accused and fall within an exception to the exclusionary rule, but the probative value must not be substantially outweighed by undue prejudice.' Averette v. State, 469 So.2d 1371, 1374 (Ala. Crim. App. 1985), quoted in Draper v. State, 886 So.2d 105, 120 (Ala. Crim. App. 2002). This Court [has] further explained:
"`"`Judicial inquiry does not end with a determination that the evidence of another crime is relevant and probative of a necessary element of the charged offense. It does not suffice simply to see if the evidence is capable of being fitted within an exception to the rule. Rather, a balancing test must be applied. The evidence of another similar crime must not only be relevant, it must also be reasonably necessary to the government's case, and it must be plain, clear, and conclusive, before its probative value will be held to outweigh its potential prejudicial effects.'" Averette v. State, 469 So.2d 1371, 1374 (Ala. Crim. App. 1985), quoting United States v. Turquitt, at 468-69 [(5th Cir.1977)].'
"Robinson v. State, 528 So.2d 343, 347 (Ala. Crim. App. 1986)."
Bailey v. State, 75 So.3d 171, 184-85 (Ala. Crim. App. 2011).
In this case, the only evidence indicating that J.A. had been sodomized by Anderson was J.A.'s testimony; the testimony of J.A.'s two brothers, who claimed to have witnessed the sodomy; and other witnesses in whom J.A. had confided. Thus, the credibility of J.A. and his brothers was critical to the State's case, and defense counsel understandably attempted to cast doubt on the three boys' credibility during cross-examination. Therefore, evidence tending to establish Anderson's motive to sodomize J.A. was not only reasonably necessary to the State's case but, in fact, was crucial in that it tended to reinforce the boys' testimony that the sodomy had occurred. In addition, the State's evidence indicating that Anderson had previously sexually abused another six-year-old child was plain, clear, and conclusive, given that the evidence consisted of Anderson's own confession to that prior act. Furthermore, immediately after the State presented its Rule 404(b) evidence, the trial court instructed the jury that it could use that evidence solely for the purpose of finding that Anderson had the motive to sodomize J.A., and the court reiterated that instruction during its jury charge. (R. 403-04.) Those instructions, which we presume the jury followed, Campbell v. State, 241 So.3d 749, 753 (Ala. Crim. App. 2017), tended to minimize the prejudicial effect of the State's Rule 404(b) evidence. See Floyd v. State, 289 So.3d 337, 402 (Ala. Crim. App. 2017) (holding that "any potential prejudice in the admission of [collateral-acts] evidence `was minimized by the circuit court's limiting instructions to the jury regarding its proper consideration of that evidence'" (quoting Trimble v. State, 157 So.3d 1001, 1005 (Ala. Crim. App. 2014))). For those reasons, we conclude that the probative value of the State's Rule 404(b) evidence was not substantially outweighed by the danger of unfair prejudice. Accordingly, we find no abuse of discretion in the trial court's admission of the State's Rule 404(b) evidence. See Thompson v. State, 153 So.3d 84, 137 (Ala. Crim. App. 2012) (holding that the trial court did not abuse its discretion by admitting Rule 404(b) evidence tending to establish the defendant's motive because the evidence "was crucial to the State's case" and because the court had instructed the jury on the limited purposes for which the evidence could be used).
Anderson also argues that reversible error occurred because, he says, the record does not reflect that the trial court conducted the balancing test that this Court conducted in the preceding paragraph. However, Anderson did not raise this claim below and thus cannot now raise that claim on appeal. See Ex parte Coulliette, 857 So.2d 793, 794 (Ala. 2003) (noting the well established principles that appellate review "`is restricted to questions and issues properly and timely raised at trial'" and that a trial court "`will not be put in error on grounds not assigned at trial'" (quoting, respectively, Newsome v. State, 570 So.2d 703, 717 (Ala. Crim. App. 1989), and Ex parte Frith, 526 So.2d 880, 882 (Ala. 1987))). Moreover, the fact that the trial court did not state for the record that the probative value of the State's Rule 404(b) evidence was not substantially outweighed by the danger of unfair prejudice does not mean the court did not conduct that balancing test. For these reasons, Anderson is not entitled to relief on this claim.
Conclusion
Based on the foregoing, the judgment of the trial court is affirmed.
AFFIRMED.
Kellum, Cole, and Minor, JJ., concur. Windom, P.J., recuses herself.