Opinion
CR-21-0334
02-17-2023
Timothy Earl BESTER v. STATE of Alabama
Alisha McKay of Jefferson Defender’s Office, Birmingham,County Public for appellant. Steve Marshall, att’y gen., and Laura Irby Cuthbert, asst. att’y gen., for appellee.
Alisha McKay of Jefferson Defender’s Office, Birmingham,County Public for appellant.
Steve Marshall, att’y gen., and Laura Irby Cuthbert, asst. att’y gen., for appellee.
KELLUM, Judge.
The appellant, Timothy Earl Bester, was convicted of rape in the first degree, see § 13A-6-61(a)(1), Ala. Code 1975; two counts of kidnapping in the first degree, see § 13A-6-43(a)(4), Ala. Code 1975; sexual abuse in the first degree, see § 13A-6-66(a)(1), Ala. Code 1975; and theft of property in the third degree, see § 13A-8-4.1(c), Ala. Code 1975. Bester was sentenced as a habitual felony offender to life imprisonment without the possibility of parole for the rape and kidnapping convictions, to 20 years’ imprisonment for the sexual-abuse conviction, and to 10 years’ imprisonment for the theft conviction.
In October 2020, Bester was indicted for the rape and kidnapping of K.S. (C. 344-45; CC-20-1376; and CC-20-1377.) In October 2020, Bester was also indicted for charges of rape, kidnapping, sodomy, and theft against A.J. (C. 346-48; CC-20-1378; CC-20-1379; CC-20-1380; and CC-20-1381.) The State moved that the cases be consolidated for trial. After a hearing, the circuit court granted that motion. The jury convicted Bester of the rape and kidnapping of K.S., and sexual abuse as a lesser-included offense of rape, kidnapping, and theft of A.J. The jury found Bester not guilty of sodomizing A.J. (CC-20-1380.)
Pursuant to Rule 52, Ala. R. App. P., we are using initials to protect the anonymity of the two victims.
The State’s evidence tended to show the following: K.S. testified that in January 2019 she was at a convenience store to meet a drug dealer and Bester was at the store at the same time. K.S. said that she had seen Bester a couple of times before and that when her dealer failed to show up Bester offered her a ride to the dealer’s house. (R. 306.) On the way, they stopped at Beater’s house in Pratt City. Bester, she said, told her that he had to get something from the house, and she went inside and sat down. Bester came up to her, she said, and "he told me whenever he wants to, he’s going to get it, and he slammed me on the bed." (R. 309.) The following occurred:
"[Prosecutor]: Did he say anything to you?
"[K.S.]: He smacked me.
"[Prosecutor]: What did he do after he smacked you?
"[K.S.]: He stalled ripping my clothes off.
"[Prosecutor]: What happened next?
"[K.S.]: He ripped my clothes off, and he had sexual intercourse with me.
"[Prosecutor]: Did you ask him to stop?
"[K.S.]: Yes, ma’am.
"[Prosecutor]: What, if anything, did he say when you asked him to stop?
"[K.S.]: He told me no and he beat me. Told me to shut up. Every time I would say something he would hit me.
"[Prosecutor]: How long do you think that took, that sexual intercourse?
"[K.S.]: I don’t know. I don’t know.
"[Prosecutor]: What happened when it was over?
"[K.S.]: He made me lay on the bunk bed that he had like tied down and he told me if I tried to move he would kill me.
"….
"[Prosecutor]: Did he say anything about you leaving that house?
"[K.S.]: He just told me I wasn’t going nowhere. I was his. I belonged to him. He’s going to make me have his babies. "[Prosecutor]: How long were you in that house?
"[K.S.]: Almost three days.
"[Prosecutor]: Were you ever allowed to leave?
"[K.S.]: No, ma’am.
"….
"[Prosecutor]: You said you were there three days. How did you get away?
"[K.S.]: Every time he would go out he would lock the door. And on the third day, he went out. And I heard the door fall open and peeked out the window, and I seen him go in the house next door. And when I went to go out the door, his phone -- I grabbed his phone and took off running. And I ran and ran and I called my mom and my mom called my cousin, Pam, and I hid by a church probably about three or four miles up until my cousin found me."
(R. 309-312.)
Stephanie Cacioppo, a former nurse, testified that she examined K.S. and conducted a forensic examination. She testified that K.S. had abrasions, bruising, and blood in her vagina, which, she said, was consistent with some type of trauma. (R. 342.)
Cacioppo testified that she had been a licensed sexual-assault nurse examiner or a "SANE." She said that she had completed special forensic training to obtain that license.
A.J. testified that she had known Bester since they were young and were in school together. She said that they began sending each other messages on Facebook, and in March 2019 he offered to drive her from her home in Anniston to Birmingham. (R. 192.) She said that Bester picked her up at her house and that another man she knew only as "40" was in the car with Bester. They stopped at a gas station in Irondale and A.J. went inside to use the restroom. When she returned to the car, she said, "everything went to hell." (R. 193.) A.J. said that Bester hit her with her cellular telephone and that she went in and out of consciousness. (R. 195.) Bester first took A.J. to his mother’s house in Pratt City; Bester’s house was next door to his mother’s. A.J. said that Bester hit her with everything that he could get his hands on, that he kicked her in the head, and that she had boot prints on her side. (R. 198.) A.J. testified:
"[Prosecutor]: And so you said he hit you with that and boots. Did you ask him to stop or beg him to or anything?
"[A.J.]: That’s all I was doing. "[Prosecutor]: What was he saying when he was beating you?
"[A.J.]: Don’t know. My ears were ringing. All I know is I was trying to leave, and I couldn’t go and was told I wasn’t going anywhere.
"[Prosecutor]: Did he ever try to have sex with you?
"[A.J.]: He did.
"[Prosecutor]: Did he have sex with you? "[A.J.]: He did.
"[Prosecutor]: Did you try to tell him to stop or anything like that?
"[A.J.]: Yes, fought, tried to bite him, kicking, screaming.
"[Prosecutor]: Did he have sex with you more than once?
"[A.J.]: He tried.
"….
"[Prosecutor]: Was there anything else that he did, I guess, to your person or to your body?
"[A.J.]: Well, besides beating, besides raping me, besides breaking a broomstick in half.
"[Prosecutor]: Well, how -- tell me about this broomstick.
"…
"[A.J.]: After the first time, I don’t know what he got high off of. But apparently, it wasn’t working anymore. He couldn’t perform. So a broomstick was broken and tried to be inserted in me. I had cuts on the inside of my legs. I was actually able to block that.
"[Prosecutor]: I know that we talked about -- I guess I need to get explicit. I do. We talked about him having sex with you. Did he -- or was there any other kind of penetration?
"[A.J.]: Oral, anal, vaginal.
"[Prosecutor]: And every time that he penetrated you during this time period, were you asking him to stop, trying to get him to stop?
"[A.J.]: Yeah.
"[Prosecutor]: Now, I want to talk to you about this time period. Did this all happen in one night?
"[A.J.]: I don’t think so because I woke up -- like I said, I kept going in and out of consciousness. And when I finally woke up, he was trying to get me to leave because he was trying to get money off my card.
"….
"[Prosecutor]: So I do want to talk about that. So you said you left. Where did y’all go?
"[A.J.]: To Easy Money."
(R. 198-203.)
Jessica Stott, a nurse and a sexual assault nurse examiner ("SANE") at the Crisis Center in Birmingham testified that in March 2019 she conducted a forensic examination on A.J. Stott testified that A.J. had extensive bruising to her chest, back, and abdomen, scratches, lacerations, marks on her neck, swollen eyes, and her teeth and mouth were bloody. Photographs taken of A.J. showed that A.J. had numerous injuries to her body and face. Stott testified that she attempted to conduct an internal examination but A.J. told her that it was too painful for her to use the instrument.
In his original brief to this Court and in his reply brief, Bester raises the following issues.
I.
[1] Bester first argues that the circuit court erred in granting the State’s motion to consolidate for trial the charges against Bester involving the two victims. Specifically, he argues that consolidating the cases resulted in extreme prejudice to him and denied him a fair trial.
The record shows that all six circuit-court case numbers were cited in all motions, rulings, and filings made before the motion to consolidate was filed. Also, the record shows that all six charges were scheduled for trial on the same date. (C. 25.) Bester did not argue that the consolidation prejudiced him because he was not prepared for the trial of one of the cases.
The record shows that approximately two weeks before trial the State moved to consolidate the cases involving K.S. and A.J. pursuant to Rule 13.3(c), Ala. R. Crim. P. It asserted that the cases were of the same or similar character, that they were connected in their commission, and that they were "part of a common scheme or plan." (C. 550.) Bester filed an objection to consolidating the cases. In the objection, Bester argued:
Rule 13.3(c) contains no time in which the motion to consolidate may be granted before trial. Temporary Rule of Criminal Procedure 15.3(b), in effect before the permanent rules were adopted in 1991, contained a provision that a motion to consolidate could be granted "not later than seven days prior to trial." However, this provision was not moved to Rule 13.3(c), Ala. R. Crim. P., when the permanent rules became effective on January 1, 1991. Rule 13.3(c) does provide that the motion may not be granted without providing a defendant an "opportunity to be heard."
"[T]he benefits of judicial economy do not outweigh the prejudice that would result to Mr. Bester should such cases be consolidated. Consolidation would prejudice Mr. Bester in that each of the two groups of cases is based on a separate alleged incident, but the jury would wrongfully conclude that this is a continuing course of conduct and that Mr. Bester had a propensity, i.e., character, for such conduct. Such is forbidden under Ala. R. Evid. R. 404. Joining such offenses would essentially create an end run around this well-established constraint and would lead to the jury being unfair finders of fact at Mr. Bester’s trial.
"The requested joinder/consolidation would also create an onerous burden on the defense to try to disprove allegations against Mr. Bester in one setting before one jury. This would be so prejudicial as to effect burden shifting."
(C. 563.) A hearing was held on the motion. (R. 7-21.) At the hearing, the State argued:
"So these offenses, all of them happened, first of all, within about a two-month span. First offense, those are case numbers 20 -- let me make sure I’m doing the right case numbers, Judge - 2022-1376 and 1377 involve one victim. And the remaining charges all involve the second victim. The first two case numbers involve the incident that happened in January, and then the rest of them happened in March of 2019. There is a month in between that, obviously, where this defendant, my understanding, was in the hospital. So while the
defendant was able to, these happened very close in time.
"On top of that, they are very much of the same character. These women were kidnapped, taken to the defendant’s home, repeatedly raped and escaped in very similar ways. So they are very much of the same, similar conduct of this defendant and committed in a very close amount of time, especially when you consider the month between he was unable to commit those offenses because he was in the hospital. So the State would argue that they should be consolidated for that reason, that they are basically one string of events by this defendant."
(R. 8-9.) Bester admitted that the charges involving the two victims were similar but argued that trying the cases in the same trial would be "unfairly prejudicial" to him. (R. 10.) The prosecutor then argued:
"[Prosecutor]: Judge, if I may add to what [my fellow prosecutor said,] in both cases, Your Honor, these are women who knew who Mr. Bester was. Mr. Bester picked them up. Mr. Bester took them to a house. Mr. Bester held them against their will. Mr. Bester raped them over and over again. Mr. Bester -- at some point, both of these women were able to escape. They have very similar stories of how they got out and that they both ran from the scene. And they were both -- one of them knocked on a door to get some help and police officers were called; the other took his phone and she ran out and she called for help. Both in the same area. And, Judge, that is why we -- again, going back to consolidation, we feel it’s appropriate for that reason. "THE COURT: And, you know, quite frankly, when I look at these cases even if they were not consolidated for trial, one would be admissible in the trial of the other to show motive, ID even perhaps and also common scheme or plan. It would be just based on what I’ve heard so far relative to how similar the alleged conduct is."
(R. 13-14.) The circuit court granted the State’s motion to consolidate. In Bester’s motion for a new trial, he also made a lengthy argument that the cases against him should not have been consolidated because, he said, the consolidation resulted in prejudice to him. (C. 593-98.)
[2] The State argues in its brief on appeal that this issue is waived because, it says, although Bester did object, he did not move to sever the cases before trial. It relies on the case of Gagliardi v. State, 695 So. 2d 206 (Ala. Grim. App. 1996), to support its argument,
The Gagliardi Court did not discuss the preservation requirements related to consolidation. Instead, that Court addressed whether the circuit court erred in denying Gagliardi’s motion to sever the two counts. The Court stated: "Rule 13.4(b), Ala. R. Grim. P., requires that a motion to sever made after a motion to consolidate has been granted must be filed within seven days after the court’s order of consolidation. The Rule further states that the right to move for a severance is waived if a motion is not timely made." Gagliardi, 695 So. 2d at 208. The Court ultimately held that the motion to sever had not been timely filed.
Here, the record shows that Bester objected to the State’s motion to consolidate and filed an extensive written objection to that motion. (C. 562-64.) In addressing whether a claim related to the consolidation of cases was properly before the appellate court, the Alabama Supreme Court in Ex parte Clackler, 612 So. 2d 1248 (Ala. 1992), stated:
"We hold that the ruling on the motion to consolidate was properly before the Court of Criminal Appeals, because
we conclude that Clackler made a timely objection to the motion. Pursuant to Rule 10(f), A. R. App. P., Clackler moved to supplement the record with the transcript from the hearing on the motion to consolidate. The trial court granted the motion, and the supplemental record clearly contains Claekler’s objection to the motion to consolidate. Therefore, the ruling on the motion to consolidate was properly before the Court of Criminal Appeals."
612 So. 2d at 1249. The Clackler Court did not discuss whether a motion to sever had been filed.
The next year, the Alabama Supreme Court in Graves v. State. 632 So. 2d 33 (Ala. 1993), reversed this Court’s holding in Graves v. State, 632 So. 2d 30 (Ala. Crim. App, 1992), that Graves’s objection to the consolidation of his cases was insufficient to preserve the issue for appellate review. The Supreme Court stated:
"Before the Court of Criminal Appeals, Graves argued that he had objected to the motion to consolidate on the ground that the introduction of his prior conviction for manslaughter -- which the State was required to prove in order to establish the unlawful possession charge -- prejudiced his right to a fair trial on the consolidated murder charge. From the above-quoted proceedings at the motion hearing, it is clear that this ground for his objection was not stated to the trial court; therefore, the issue of whether the motion to consolidate was improperly granted because of the possibility of prejudice engendered by the introduction of Graves’s prior manslaughter conviction in his present trial for murder was not preserved for review by a specific objection.
"….
"We also note that at trial Graves’s counsel made no motion to sever. Ala. R. Cr. P. 13.4(a) provides that if the consolidation of offenses for trial prejudices the defendant, the trial court can order separate trials. However, a defendant must make a motion to sever court-ordered consolidation ‘within seven (7) days of the court’s order, [but,] in any event, prior to trial,’ and ‘[t]he right to move for severance is waived if a proper motion [to sever] is not timely made.’ Ala. R. Cr. P. 13.4(b). ‘No severance of offenses … may be ordered after trial has commenced unless the defendant consents and a mistrial has properly been declared as to such offense—’ Ala. R. Cr. P. 13.4(c) (emphasis added)."
632 Bo. 2d at 37. The Supreme Court did not hold that an objection to a motion to consolidate is not sufficient to preserve the issue for review on appeal. Nor did the court reverse its earlier holding in Clackler. The Graves Court merely held that the objection in that case was not sufficient to preserve the issue for review on appeal.
More recently, this Court in Anderson v. State, 886 So. 2d 895 (Ala. Crim. App. 2003), stated:
"The Alabama Supreme Court determined that the appellant’s objection to the State’s consolidation motion was not sufficient to preserve the matter for appellate review, stating that counsel should have moved to sever the offenses. Graves v. State, 632 So. 2d 33, 36 (Ala. 1993). However, the Supreme Court noted:
" ‘Nevertheless, this Court "will not deliberately invite a petition for postconviction relief," see Johnson v. State, 528 So. 2d 1167, 1168 (Ala. Cr. App. 1987), by holding Graves’s meritorious claim -- that his conviction for manslaughter is due to be reversed because his counsel failed to properly object to the consolidation -- has not been preserved for review. Therefore,
we affirm that portion of the judgment of the Court of Criminal Appeals reversing Graves’s conviction for manslaughter and remanding for a new trial.’
"632 So. 2d at 37 (footnote omitted)."
886 So. 2d at 897-98. See also Tolliver v. State, 814 So. 2d 991, 994 (Ala. Crim. App. 2000) ("Because Tolliver did not object during the pendency of the case and did not file any pretrial motions relating to the consolidation of the cases to the trial court, the issue was not preserved."); Cole v. State, 721 So. 2d 255, 260 (Ala. Crim. App. 1998) ("This issue was not preserved for appellate review; the record contains no objection to the consolidation of the charges to be tried together, no motion to sever the charges, and no motion or claim of entitlement to a new trial because of the alleged ‘bleeding-over effect’ on the charges under § 13A-6-69 [,Ala. Code 1975]. Minter v. State, 543 So. 2d 202, 203 (Ala. Cr. App. 1989). Because it is being raised for the first time on appeal, there is no adverse ruling for this court to review. Leonard v. State, 551 So. 2d 1143, 1146 (Ala. Cr. App.), cert. denied, 551 So.2d 1143 [(Ala. 1989)]."). A review of the cases cited above reflects that this Court has reviewed a ruling on a motion to consolidate when a defendant had made either a specific objection to the motion or moved that the cases be severed pursuant to Rule 13.4, Ala. R. Crim. P.
[3, 4] Moreover, "[a] trial court is vested with substantial discretion in deciding whether to consolidate cases, and its decision as to consolidation will be reversed only for a clear abuse of that discretion. See Snell v. State, 677 So. 2d 786, 789 (Ala. Crim. App. 1995)." Hinkle v. State, 86 So. 3d 441, 446 (Ala. Crim. App. 2011). Consolidated trials "conserve state funds, diminish inconvenience to witnesses and public authorities, and avoid delays in bringing those accused of crime to trial." Bruton v. United States, 391 U.S. 123, 134, 88 S.Ct. 1620, 20 L.Ed.2d 476 (1968).
"Joinder, and thus consolidation, is appropriate where the crimes are of similar character, meaning nearly corresponding, resembling in many respects, or having a general likeness. United States v. Werner, 620 F.2d 922, 926 (2d Cir. 1980). The Court of Criminal Appeals has recently indicated that, the most important consideration in determining whether crimes are similar is whether one offense would have been admissible in the trial of the other. Nickerson v. State, 523 So. 2d 504, 506-07 (Ala. Crim. App. 1987) (relying on Wright, Federal Practice and Procedure, Criminal 2d, § 143 (1982))."
Ex parte Hinton, 548 So. 2d 562, 566 (Ala. 1989).
"Consolidation of similar offenses is specifically provided for in Rule 13.3(a)(1), (2), and (3) and Rule 13.3(c), Ala. R. Cr. P. If offenses are charged in separate indictments, which was the case here, the trial court, on its own or on motion of either party, may order that the charges be tried together, if the offenses could have been joined in a single indictment. Rule 13.3(c). Two or more offenses may be joined in an indictment if they are of the same or similar character or are based on the same conduct or are otherwise connected in their commission or are alleged to have been part of a common scheme or plan. Rule 13.3(a). Rule 13.3 does not exclude the consolidation of a capital offense with another lesser offense. George v. State, [717 So. 2d 827 (Ala. Crim. App. 1996).]
"The appellant inappropriately relies on Jenkins v. State, 472 So. 2d 1128 (Ala. Cr. App.), cert. denied, 472 So. 2d 1128 (Ala. Cr. App. 1985). In that case,
the consolidation of the charges of second-degree rape and indecent exposure with a charge of first-degree rape was held to be improper because ‘[n]one of the evidence in one case overlapped with that in another case.’ In this case, evidence in the two capital cases and the two attempted murder cases overlapped, and the offenses were of the same or similar character, were connected in their commission, and were part of a common scheme or plan. See Knotts v. State, 686 So. 2d 431 (Ala. Cr. App. 1995).
"The appellant has failed to demonstrate the ‘actual and compelling’ prejudice necessary to outweigh the benefits of judicial economy resulting from consolidation. See Ex parte Hinton, 548 So. 2d 562 (Ala.), cert. denied, 493 U.S. 969, 110 S.Ct. 419, 107 L.Ed.2d 383 (1989). The trial court did not abuse its discretion in consolidating the appellant’s indictments for trial."
Williams v. State, 710 So. 2d 1276, 1321 (Ala. Crim. App. 1996). This Court has upheld the consolidation of cases involving rape and sexual abuse.
The Alabama Supreme Court has also affirmed the consolidation of capital cases. See Ex parte Hinton, 548 So. 2d 562 (Ala. 1989).
We agree with the circuit court that based on the State’s arguments at the consolidation hearing and the evidence presented at trial, the cases against the two victims were sufficiently similar to warrant consolidation. "The two offenses were of the same or similar character and appeared to be part of a common scheme, design, or plan. The judge suggested at trial that evidence of each offense would have been admissible at the trial of the other, had separate trials been held. See C. Gamble, McElroy’s Alabama Evidence, § 69.01(6) (3d ed. 1977)." Wright v. State, 516 So. 2d 941, 943 (Ala. Crim. App. 1987). The same is true in this case.
Furthermore, this Court in King v. State, 518 So. 2d 880 (Ala. Crim. App. 1987), held that there is no reversible error in granting a motion to consolidate when no compelling prejudice is shown from the consolidation. In King, this Court considered whether the circuit court erred in consolidating two attempted rape charges against two different victims. In upholding the consolidation, this Court stated:
"King further contends that ‘it is inherently prejudicial to join crimes where there are separate facts, questions, participants and victims’ and that his constitutional right to a fair and impartial trial was violated. In answer, we refer King to the following passage from Twelfth Annual Review of Criminal Procedure: United States Supreme Court and Courts of Appeals 1981-1982, 71 Geo. L. J.339, 494-98 (1983), which was quoted in Holsemback v. State, 443 So. 2d 1371, 1377-78 (Ala. Cr. App. 1983):
" ‘Although the risk of prejudice, either from the jury’s perception of evidentiary spillover or transference of guilt, exists in any joinder of offenses or defendants, the trial court weighs that risk against the interest of judicial economy. In reviewing improper denial of severance claims, courts of appeals require that the defendant demonstrate that the trial court abused its discretion by showing that the failure to sever resulted in compelling prejudice ….’
"King has clearly failed to meet this burden, for he has neglected to even allege any ‘compelling prejudice.’ By the nature of the evidence, i.e., simple and distinct, the separate verdict forms, and the trial court’s instructions, we consider that it was easy for the jury to keep the evidence separate in their deliberations and, thus, that the danger of the jury’s cumulating the evidence was substantially reduced. 2 W. LaFave and J. Israel, Criminal Procedure, § 17.1 (1984). In addition, the evidence supporting each indictment was strong when contrasted with King’s defenses. Under these sets of facts, we cannot say that the trial court abused its discretion in denying King’s motion to sever."
518 So. 2d at 887. See Campbell v. State, 718 So. 2d 123 (Ala. Crim. App. 1997).
[5] Indeed, " ‘[w]e need not decide whether these charges were improperly joined, because we find no compelling prejudice arose in any event.’ " Tariq-Madyun v. State, 59 So. 3d 744, 752 (Ala. Crim. App. 2010), quoting United States v. Dowd, 451 F.3d 1244, 1249 (11th Cir. 2006). "No prejudice results where, as here, the jury could easily separate the evidence of the separate crimes." Summerlin v. State, 594 So. 2d 235, 236-37 (Ala. Crim. App. 1991). In this case, Bester was acquitted of the sodomy charge related to victim A.J. and was convicted of the lesser offense of sexual abuse concerning the rape of A.J. It is clear that the jury was able to easily separate the evidence of the different crimes and the different victims. "Because the jury returned a guilty verdict as to only one count, it is clear that the jury separated the evidence as it pertained to each offense." Minnis v. State, 690 So. 2d 521, 525 (Ala. Crim. App. 1996). Also, the circuit court instructed the jury that "the evidence must be judged in each case on its own accord." (R. 472.) The record fails to show that any "compelling prejudice" resulted from the consolidation of the charges related to the two victims. For these reasons, Bester is due no relief on this claim.
II.
[6] Bester next argues that the circuit court erred in denying his motion for the circuit court to review in camera A.J.’s pretrial statement in accordance with the Alabama Supreme Court’s holding in Ex parte Pate, 415 So. 2d 1140 (Ala. 1981). Specifically, he argues that the circuit court violated Pate by not examining A.J.’s pretrial statements. The State argues that, according to Ex parte Morrow, 915 So. 2d 539 (Ala. 2004), Bester failed to lay the proper predicate for the court to conduct an in camera examination.
The State said at the hearing that it had inadvertently furnished Bester with a copy of K.S.’s pretrial statement to police.
The record shows that at a pretrial hearing the following occurred;
"[Defense counsel]: Some time ago, the defense was provided with a recorded statement from the alleged victim [K.S.]. Upon inquiry about the existence or nonexistence of a similar sort of statement from the alleged victim [A.J.], the State takes the position that yes, but it’s not discoverable. I understand the rule. But if there’s going to be effective cross- examination of [A.J.], should she come here and take that stand, we’re going to have to know what’s in that prior statement if it’s inconsistent so that she can be impeached. And so we would ask that we be given the statement for that purpose or in the alternative, and this is burdensome on the Court, for the Court to review that statement alter [A.J.] testifies -on direct to see if there are any …."
(R. 21.) The circuit court noted that, according to the Alabama Rules of Evidence, the State had no duty to disclose the victim’s statement and that Bester’s request was denied. (R. 23.) The record also shows that Bester did not object based on Ex parte Pate during A.J.’s testimony. This claim was not raised again until Bester filed his motion for a new trial. (C. 593-98.)
In Alabama, the State has no duty to furnish a defendant a copy of a witness statement before trial. See Rule 16.1(e), Ala. R. Evid. However,
"[t]he rule of discovery is different where a prosecution witness has testified on direct examination in the trial of the case.
" ‘In such cases, the defendant, upon laying a proper predicate, is entitled to have the Court, at least, conduct an in-camera inspection as outlined in Palermo v. United States, 360 U.S. 343, 79 S.Ct. 1217, 3 L.Ed.2d 1287 (1959). The trial court could determine initially (1) whether the statement made by the witness before trial differed in any respects from statements made to the jury during trial, and (2) whether the statement requested was of such a nature that without it the defendant’s trial would be fundamentally unfair. Cooks [v. State, 50 Ala. App. 49, 276 So. 2d 634 (1973).]’ "
Pate, 415 So. 2d at 1144.
In Ex parte Key, 890 So. 2d 1056 (Ala. 2003), the Alabama Supreme Court addressed Pate’s applicability: "[o]nce a prosecution witness has testified on direct examination, … a defendant, upon laying a proper predicate, is entitled to inspect a prior statement of the witness for the purpose of cross-examining or impeaching the witness." 890 So. 2d at 1064.
Based on Pate, a defendant is entitled to inspect a pretrial statement only after a witness has testified. The motion in this case was made before trial and before defense counsel even knew if the witness would testify at trial. (R. 21.)
This Court has not had occasion to address the timeliness of a Pate motion. However, federal courts have addressed this issue. This Court has stated that Pate is Alabama’s adoption of the federal Jencks Act and that cases interpreting that Act may be used when reviewing a Pate claim. See Horn v. State, 381 So. 3d 476 (Ala. Crim. App. 2022).
The United States Court of Appeals for the Tenth Circuit addressed the timeliness of a Jencks motion and stated:
"Defense counsel made a pretrial motion for Jencks Act materials. The trial judge denied this motion, stating that the Government would comply with Jencks Act requirements at the appropriate time. The appellants made no further Jencks motions throughout the trial, but they contend that their right to Jencks matter (and accordingly their right to complain on appeal of any possible Jencks Act violations) was preserved in their pretrial motion. We reject this contention at the outset. The court’s order simply observed that the Government ‘responds (to defendant’s Jencks motion) by stating that it will make disclosure of any such statements in accordance with 18 U.S.C. § 3500.’ This observation hardly constitutes an order placing the Government under a ‘continuing duty.’ The Jencks Act protects Government files from unnecessary and vexatious ‘fishing expeditions’ by defendants. Palermo v. United States, 360 U.S. 343, 79 S.Ct. 1217, 3 L.Ed.2d 1287 [(1959)]. At the same time the Act assures defendants their Sixth Amendment rights to confront their accusers by compelling the Government to pro
duce ‘statements’ that may be useful for impeachment of Government witnesses. United States v. Smaldone, 544 F.2d 456, 460 (10th Cir. [1976]). The statute clearly contemplates that the production of Government documents be conditioned upon a timely motion by the defense. United States v. Keine, 436 F.2d 850 (10th Cir. [1971]). This time is expressly provided in the statute. The pre-trial motion was properly denied. The trial judge, of course, need not order production before trial. Robbins v. United States, 476 F.2d 26 (10th Cir. [1973])."
United States v. Carter, 613 F.2d 256, 261 (10th Cir. 1979).
"Absent a preexisting agreement with the government concerning disclosure of witness statements, see, e.g., United States v. McKenzie, 768 F.2d 602, 609 (5th Cir. 1985), a Jencks motion must be made after the relevant witness testifies on direct examination and at a minimum before the close of evidence, see United States v. Knapp, 25 F.3d 451, 461 (7th Cir. 1994); United States v. Carter, 613 F.2d 256, 261 (10th Cir. 1979) (holding that defendant failed to make a timely assertion of his rights under the Jencks Act when he requested the materials before trial, which was too early, and again after trial, which was too late, but not during trial after the relevant witness testified)."
United States v. Jonassen, 759 F.3d 653, 663 (7th Cir. 2014). See also United States v. Benz, 740 F.2d 903, 915 (11th Cir. 1984) ("We first note that Benz has no Jencks Act claim because he did not make a proper Jencks Act motion for the production of Hunt’s statements following the prosecutor’s direct examination of Hunt."); United States v. Gatto, 533 F.2d 264, 265 (5th Cir. 1976) ("A motion for Jencks Act material is appropriate only after the witness has testified at trial. 18 U.S.C. § 3500(b) (1970). Denial of a pre-trial motion for discovery does not constitute a Jencks Act violation.").
There was no Pate violation in this case because the motion for the court to review A.J.’s pretrial statement was filed before trial. The pretrial Pate motion was filed too early, and the Pate claim raised in the motion for a new trial was filed too late. See United States v. Jonassen, supra. Accordingly, the circuit court did not err in denying Bester’s pretrial Pate motion. For these reasons, Bester is due no relief on this claim.
III.
[7–10] Bester next argues that the circuit court erred in denying his motions to strike for cause several prospective jurors -- jurors R.H., S.S., and N.K. Specifically, he argues that the prospective jurors "exhibited deep seeded [sic] bias due to the nature of the charges brought by multiple accusers." (Bester’s brief at p. 48.)
To protect the anonymity of the prospective jurors, we are using their initials.
"Section 12-16-150(7), Ala. Code 1975, provides that a prospective juror may be removed for cause if ‘he has a fixed opinion as to the guilt or innocence of the defendant which would bias his verdict.’ A juror may also be removed if he has an ‘absolute bias’ against or in favor of the defendant. See Johnson v. State, 611 So. 2d 506, 510 (Ala. Crim. App. 1992)."
Hyde v. State, 13 So. 3d 997, 1009-10 (Ala. Crim. App. 2007).
"To justify a challenge for cause, there must be a proper statutory ground or ‘ "some matter which imports absolute bias or favor, and leaves nothing to the discretion of the trial court." ’ Clark
v. State, 621 So. 2d 309, 321 (Ala. Cr. App. 1992) (quoting Nettles v. State, 435 So. 2d 146, 149 (Ala. Cr. App. 1983)). This court has held that ‘once a juror indicates initially that he or she is biased or prejudiced or has deep-seated impressions’ about a case, the juror should be removed for cause. Knop v. McCain, 561 So. 2d 229, 234 (Ala. 1989). … A juror ‘need not be excused merely because [the juror] knows something of the case to be tried or because [the juror] has formed some opinions regarding it.’ Kinder v. State, 515 So. 2d 55, 61 (Ala. Cr. App. 1986). … In order to justify disqualification, a juror ‘ "must have more than a bias, or fixed opinion, as to the guilt or innocence of the accused" ’; ‘ "[s]uch opinion must be so fixed … that it would bias the verdict a jury would be required to render." ’ Oryang v. State, 642 So. 2d 979, 987 (Ala. Cr. App. 1993) (quoting Siebert v. State, 562 So. 2d 586, 595 (Ala. Cr. App. 1989))."
Ex parte Davis, 718 So. 2d 1166, 1171-72 (Ala. 1998). "The test for determining whether a strike rises to the level of a challenge for cause is ‘whether a juror can set aside their opinions and try the case fairly and impartially, according to the law and the evidence.’ Marshall v. State, 598 So. 2d 14, 16 (Ala. Cr. App. 1991)." Dunning v. State, 659 So. 2d 995, 997 (Ala. Crim. App. 1994).
[11–13] "The qualification of a juror is a matter within the discretion of the trial court. Clark v. State, 443 So. 2d 1287, 1288 (Ala. Cr. App. 1983). The trial judge is in the best position to hear a prospective juror and to observe his or her demeanor." Ex parte Dinkins, 567 So. 2d 1313, 1314 (Ala. 1990)." Thompson v. State, 153 So. 3d 84, 116 (Ala. Crim. App. 2012). "A trial judge’s finding on whether or not a particular juror is biased ‘is based upon determinations of demeanor and credibility that are peculiarly within a trial judge’s province.’ … That finding must be accorded proper deference on appeal." Martin v. State, 548 So. 2d 488, 490-91 (Ala. Crim. App. 1988).
None of the three challenged prospective jurors served on Bester’s jury. They were all struck using peremptory strikes. However, the record is silent as to what party used its peremptory strikes to remove the now-challenged prospective jurors because neither the strike list nor the jury list is included in the record.
A.
[14] Bester first argues that prospective juror R.H. indicated during voir dire examination that "it’s hard to not come in with preconceived notions with multiple accusers." (R. 118.) He asserts that this reason was sufficient for the circuit court to grant his motion to strike R.H. for cause.
[15, 16] The record shows that during voir dire, the prospective jurors were questioned about the "Me Too" movement and whether they would believe the testimony of a woman concerning allegations of sexual assault. The following occurred during R.H.’s voir dire examination:
"[Defense counsel]: If you will, the presumption of innocence with believing women. Tell me a little bit about how you work that out.
"[R.H.]: I think it’s a factor. I think when you have one victim, it could be misrepresenting what happened. But when you start -- let’s use a famous case, the Cosby case. He has like 60 people accusing him. And, you know, I could believe that half lied but that still left 30. So it’s like this case where there’s two accusers, that makes me wonder. I mean, how could two -- and I know we don’t have anything but -- any facts, but for me it’s hard to not come in with preconceived notions with multiple accusers."
(R. 117-18.) The circuit court then discussed the presumption of innocence and defense counsel asked R.H. whether he could set aside any preconceived notions. The following occurred:
"[R.H.]: So full disclosure, I do feel that way that it’s - the burden of proof is both sides then if they’re multiple -- how do I say this? And I understand the law is guilty until proven otherwise, and I agree with that law. But for a feeling, I think it is -- does come down to the defense to also prove how they’re correct, how the witnesses don’t stand up. "THE COURT: I understand where you’re coming from. And I have to go back to the law because that’s where we’re centered in this whole process. And basically, you would have to accept the law in spite of your personal feelings. And I say that because we’re dealing with potentially 12 jurors. They’re all going to have different feelings. That’s why the law is what we go back to.
"[R.H.] Right.
"THE COURT: And if you cannot set aside your personal feelings and be fair and impartial to the defendant and fair and impartial to the State, not requiring the defendant to prove anything, because the law specifically says that he has no burden.
"[R.H.]: Okay.
"THE COURT: That’s what this law says. So if you can’t do that, then you are disqualified as a juror.
"[R.H.]: I can do that."
(R. 138-40.)
"THE COURT: And you understand that what the law says you must follow to quality as a juror in order to sit and hear the case. You understand, right?
"[R.H.]: Yes.
"THE COURT: And you told me that you could do that.
"[R.H.]: I can. I’m just saying there may be a feeling in the back that I would have to push aside.
"THE COURT: That’s what I’m saying about the human element. We all have personal feelings. It’s an impossibility not to. But we have to agree to place those personal feelings aside. For instance, you mentioned that … you had relative[s] -- your cousin and your wife were victims of sexual assault. You understand it would be improper to bring those circumstances into that case, correct?
"[R.H.]: Yes."
(R. 141-42.) R.H. indicated that he could set aside any preconceived view that he had.
" ‘ ‘To hold that the mere existence of any preconceived notion as to the guilt or innocence of an accused, without more, is sufficient to rebut the presumption of a prospective juror’s impartiality would be to establish an impossible standard. It is sufficient if the juror can lay aside his impression or opinion and render a verdict based on the evidence presented in court.’ Irvin v. Dowd, 366 U.S. 717, 723, 81 S.Ct. 1639, 1642-43, 6 L.Ed.2d 751 (1961). See also Jackson v. State, 516 So. 2d 726, 739 (Ala. Cr. App. 1985), remanded on other grounds, 516 So. 2d 768 (Ala. 1986)."
Carroll v. State, 599 So. 2d 1253, 1258 (Ala. Crim. App. 1992).
" ‘[J]urors who give responses that would support a challenge for cause may be rehabilitated by subsequent questioning by the prosecutor or the court.’ Johnson v. State, 820 So. 2d 842, 855 (Ala. Crim. App. 2000). ‘The crucial inquiry is whether the veniremen could follow the court’s instructions and obey his oath, notwithstanding his views on capital punishment.’ McNabb v. State, 887 So. 2d 929, 944 (Ala. Crim. App. 2001), quoting other cases."
Brownfield v. State, 44 So. 3d 1, 34 (Ala. Crim. App. 2007).
"Even though a prospective juror may initially admit to a potential for bias, the trial court’s denial of a motion to strike that person for cause will not be considered error by an appellate court if, upon further questioning, it is ultimately determined that the person can set aside his or her opinions and try the case fairly and impartially, based on the evidence and the law."
Ex parte Land, 678 So. 2d 224, 240 (Ala. 1996).
The record of the voir dire shows that the circuit court was meticulous in questioning the prospective jurors who initially indicated a possible bias. In fact, the record shows that the court thoroughly questioned each prospective juror until it was satisfied by the responses. "The trial judge was in the best position to observe the juror and his manner and to weigh his answers." Ex parte Dinkins, 567 So. 2d 1313, 1314 (Ala. 1990). "Under the present facts and especially because the trial court was able to observe firsthand the demeanor of the potential jurors and their answers, there is no indication that the trial court abused its discretion in failing to disqualify these prospective jurors." Oryang v. State, 642 So. 2d 979, 988 (Ala. Crim. App. 1993). For these reasons, we hold that the circuit court did not abuse its discretion in denying Bester’s motion to remove prospective juror R.H. for cause. Therefore, Bester is due no relief on this claim.
B.
[17] Bester next argues that the circuit court erred in failing to, grant his motion to remove prospective juror S.S. for cause because, he says, the statements that she made during voir dire concerning the "Me Too" movement showed that she could not be impartial.
When asked about her views on believing a woman who had made allegations of sexual assault, the following occurred:
"[S.S.]: I feel like I don’t think anybody would want to say something like that without any reason. So I want to hear that person and I want to acknowledge that. And I think it’s very positive in this day and age that we give a place for a person to voice, and people with voices say things like that because, you know, you don’t always get -- it’s a very terrifying thing for that person to. stand out and to be encouraged to acknowledge that something happened to them. So I want to make sure that they have a place, a voice that they are safe to do that.
"[Defense counsel]: Understood completely. Let me pose to you the same sort of question that I posed to [R.H.]. How would you work that notion out with the notion of presumption of innocence? Can you do that and still presume Mr. Bester to be innocent?
"[S.S.]: Sure. I mean, I want to give him every chance that I can. At the same time, I want to give, yeah, the voice of the woman, you know, yeah, I think of man as well. But I feel like you, it’s important to hear people out.
"[Defense counsel]: That’s exactly why we’re here. Would it cause you to … place upon Mr. Bester a burden to prove his innocence?
"[S.S.]: Yeah.
"[Defense counsel]: It would? "[S.S.]: I think probably because I don’t think in this case for no reason so, yeah."
(R. 122-23.) S.S. was questioned later about her views and repeatedly stated she would do her best to follow the law. The following then occurred:
"THE COURT: Are you willing to follow the law as it relates to that aspect of the law?
"[S.S.]: Yes, I am."
(R. 160-61.) Defense counsel moved that S.S. be removed for cause based upon her answers to voir dire questions. (R. 162.) The circuit court stated:
"And your challenge is noted. However, it is denied. I think that she, expressed that she’s very conscientious and that she would do her best to be fair and impartial. And when I emphatically asked her if she would be fair and impartial to both sides, she emphatically stated she could."
(R. 162.)
Prospective juror S.S. indicated that she could follow the law; therefore, her initial response was rehabilitated. This prospective juror was rehabilitated, thus "there was no reason to remove [her] for cause." Belisle v. State, 11 So. 3d 256, 287 (Ala. Crim. App. 2007). Thus, Bester is due no relief on this claim.
C.
[18] Bester next argues that the circuit court erred in denying his motion to remove prospective juror N.K. for cause. The following occurred during N.K.’s voir dire:
"[N.K.]: In all candor, I do believe that because of [the] Me Too [movement], we should listen to women who make those things and yes, that may influence me. The example that was given is do you freeze, do you fight, or do you flee, I cannot answer that question until I am confronted with that situation.
"[Defense counsel]: Sure, sure.
"[N.K.]: I’m trying to be honest with you. That may influence my thinking.
"….
"THE COURT: Are you in any way insinuating that you cannot be fair and impartial to both parties?
"[N.K.]: I do not believe that to be the case."
(R. 164-65.)
The following then occurred:
"THE COURT: Are there any motions on [N.K.]?
"[Prosecutor]: Not from the State.
"[Defense counsel]: Yes, based upon answers in the courtroom and the answers here about the defendant testifying. I realize that when you put the ultimate question to him, he says he can [be] fair. But every time I asked him about specifics, this would influence me, that would influence me, I know you can’t take the human element out of it. But the totality of his responses leaves me to believe that he cannot be fair.
"THE COURT: And I’ll just say for the record, we have to recognize that these folks are lay folks. And they are not accustomed to the legalese that we use and legal concepts that we use. So I think it was a proper motion. I’m going to deny it though because I believe that he emphatically said that he could be fair and impartial, okay."
(R. 166-67.)
As Bester admitted, when questioned prospective juror N.K. indicated that he could be fair and impartial. This prospective juror was rehabilitated. Thus, there was no reason to remove N.K. for cause. See Belisle, supra. The circuit court did not abuse its discretion in denying Bester’s motion to remove prospective juror N.K. Bester is due no relief on this claim.
D.
[19] Bester further argues that this Court cannot apply the harmless-error analysis to the strikes in this case because, he says, "the volume and percentage of [the] peremptory strikes" separate this case from the Alabama Supreme Court’s holding in Bethea v. Springhill Memorial Hospital, 833 So. 2d 1 (Ala. 2002). Bester is relying on the Alabama Supreme Court’s holding in Ex parte Colby, 41 So. 3d 1 (Ala. 2009), in which that Court held that multiple errors in denying a defendant’s challenges for cause may not be harmless. 41 So. 3d at 5.
The Alabama Supreme Court in Bethea noted that Alabama had returned to a harmless-error analysis when a circuit court erroneously fails to remove a prospective juror for cause.
"[T]his Court has returned to the ‘harmless-error’ analysis articulated in the Ross v. Oklahoma, 487 U.S. 81, 108 S.Ct. 2273, 101 L.Ed.2d 80 (1988), and [United States v. ]Martinez–Salazar, 528 U.S. 304, 120 S.Ct. 774, 145 L.Ed.2d 792 (2000), decisions. Because a defendant has no right to a perfect jury or a jury of his or her choice, but rather only to an ‘impartial’ jury, see Ala. Const. 1901 § 6, we find the harmless-error analysis to be the proper method of assuring the recognition of that right.
"In this instance, even if the Betheas could demonstrate that the trial court erred in not granting their request that L.A.C. be removed from the venire forcause (an issue we do not reach), they would need to show that its ruling somehow injured them by leaving them with a less-than-impartial jury. The Betheas do not proffer any evidence indicating that the jury that was eventually impaneled to hear this action was biased or partial."
Bethea, 833 So. 2d at 7. "The Alabama Supreme Court has held that the failure to remove a juror for cause is harmless when that juror is removed by the use of a peremptory strike." Pace v. State, 904 So. 2d 331, 341 (Ala. Crim. App. 2003).
Bester argues in brief that, "[a]lthough the record is not clear as to who struck R.H., S.S., and N.K., the only logical conclusion based on their voir dire responses is that Bester was forced to strike each prospective juror." (Bester’s brief at p. 56 n. 4.) Bester also argues:
"The record also reflects that had Bester not had to use peremptory strikes on R.H., S.S., and N.K., he would have utilized peremptory challenges on other jurors that ended up serving. … This would include, at a minimum, R.A., and R.P. who each had law enforcement officers in their respective families. It also would include D.H. who disclosed that her daughter was a sexual assault victim."
(Bester’s brief at p. 56.)
However, as we have previously stated, neither the strike list nor the jury list is contained in the record. "[T]his record contains no jury strike list from which to determine which party struck this potential juror. Therefore, the appellant has failed to demonstrate any possible prejudice." Price v. State, 725 So. 2d 1003, 1054 (Ala. Crim. App. 1997). This Court cannot predicate error on a silent record. Also, Bester points to no portion of the record in which the jurors that he claims he would have struck instead of the challenged juror -- R.A., R.P., or D.H. -- were biased against him. In fact, the cited reason to remove these jurors would not support a challenge for cause. "[T]he fact that the potential juror’s father and brother had been victims of crimes did not imply that she would be biased in this case." Yancey v. State, 65 So. 3d 452, 468 (Ala. Crim. App. 2009). "We have held that the trial court did not err when it denied an appellant’s motion to strike a veniremember for cause when the veniremember said she was a police dispatcher and she knew the trial judge and some of the police officers who would testify at trial." Larghi v. State, 233 So. 3d 374, 411 (Ala. Crim. App. 2015).
Accordingly, even if the circuit court erred in failing to remove one of the prospective jurors, that error was harmless. See Bethea, supra. For the foregoing reasons, Bester is due no relief on this claim.
IV.
[20] Bester next argues that the circuit court erred in refusing to give an instruction on sexual misconduct as a lessor-included offense for both rape charges.
The Alabama Supreme Court has held that sexual misconduct may be a lesser-included offense for the crime of rape. See Ex parte Cordar, 538 So. 2d 1246 (Ala. 1988).
At the charge conference, the following occurred:
"THE COURT: A person commits the crime of sexual misconduct if, being a mule, he engages in sexual intercourse with a female without her consent under circumstances other than those covered by rape in the first degree. And that would essentially mean that, you know, there was no consent but the element of force is absent. And that’s where that consideration would be. State.
"[Prosecutor]: Judge, we would object to that. We think it’s improper. The only testimony that we’ve heard has been that this was rape. The only testimony is that it was forced. These women were beaten and forced to have sex.
"THE COURT: Defense, respond.
"[Defense counsel]: Your Honor, according to and I believe -- let me pull it up before I tell you the wrong. According to [Ex parte] Chavers, [361 So. 2d 1106 (Ala. 1978),] that the lesser included could be given. However scant the evidence is supporting it, it should be [given], So even if the evidence is scant, it still can be included -- should be included.
"THE COURT: I understand. I think the evidence has been overwhelming that there was force, even if you go back to the photos of the bruises and the swelling as it relates to [A.J.]. Now, as far as force as it relates to [K.S.], it’s a bit more, you know - but the fact that the charge is kidnapping in and of itself that has an element of force to it. So there’s just no way to say that force was not involved based on the totality of the circumstances. I think the sexual-misconduct charge is a situation where a person may bo incapacitated and force is not involved. So I don’t think it’s appropriate under these circumstances. I understand making a request for it. Your request for sexual misconduct is noted. But at this point, I’m going to deny it. Your exception is noted on the record."
(R. 396-98.)
[21–23] In addressing the appropriateness of a jury instruction on a lesser-included offense, this Court has stated:
" ‘A person accused of the greater offense has a right to have the court charge on lesser included offenses when there is a reasonable theory from the evidence supporting those lesser included offenses.’ MacEwan v. State, 701 So. 2d 66, 69 (Ala. Crim. App. 1997). An accused has the right to have the jury charged on ‘ "any material hypothesis which the evidence in his favor tends to establish." ’ Ex parte Stork, 475 So. 2d 623, 624 (Ala. 1985). ‘[E]very accused is
entitled to have charges given, which would not be misleading, which correctly state the law of his case, and which are supported by any evidence, however [ ] weak, insufficient, or doubtful in credibility,’ Ex parte Chavers, 361 So. 2d 1106, 1107 (Ala. 1978), 'even if the evidence supporting the charge is offered by the State.’ Ex parte Myers, 699 So. 2d 1285, 1290-91 (Ala. 1997), cert. denied, 522 U.S. 1054, 118 S.Ct. 706, 139 L.Ed.2d 648 (1998). However, '[t]he court shall not charge the jury with respect to an Included offense unless there is a rational basis for a verdict convicting the defendant of the Included offense.’ § 13A-1-9(b), Ala. Code 1975. ‘The basis of a charge on a lesser-included offense must be derived from the evidence presented at trial and cannot be based on speculation or conjecture.’ Broadnax v. State, 825 So. 2d 134, 200 (Ala. Crim, App. 2000), aff’d, 825 So. 2d 233 (Ala. 2001), cert. denied, 536 U.S. 964, 122 S.Ct. 2675, 153 L.Ed.2d 847 (2002). ‘ "A court may properly refuse to charge on a lesser included offense only when (1) it is clear to the judicial mind that there is no evidence tending to bring the offense within the definition of the lesser offense, or (2) the requested charge would have a tendency to mislead or confuse the jury." ’ Williams v. State, 675 So. 2d 537, 540-41 (Ala. Crim. App. 1996), quoting Anderson v. State, 507 So. 2d 580, 582 (Ala. Crim. App. 1987)."
Clark v. State, 896 So. 2d 584, 641 (Ala. Crim. App. 2000) (opinion on return to remand).
In Bester’s reply brief, he asserts that the reason the circuit court should have instructed the jury on the lesser-included offense of sexual misconduct as to K.S. was that K.S. lacked injury and that the lack of injury presented a "reasonable theory of a lack of forcible compulsion to support the sexual misconduct charge." (Bester’s reply brief at p. 13.).
[24] At the time the charges involving K.S. were committed, § 13A-6-65, Ala. Code 1975, provided:
"(a) A person commits the crime of sexual misconduct if he or she does any of the following:
"(1) Being a male, he engages in sexual intercourse with a female without her consent, under circumstances other than those covered by sections 13A-6-61 [rape in the first degree] and 13A-6-62 [rape in the second degree]; or with her consent where consent was obtained by the use of any fraud or artifice; or
"(2) Being female, she engages in sexual intercourse with a male without his consent; or
"(3) He or she engages in deviate sexual intercourse with another person under circumstances other than those covered by sections 13A-6-63 [sodomy in the first degree] and 13A-6-64 [sodomy in the second degree]. Consent is no defense to a prosecution under this subdivision."
This statute was amended effective June 9, 2019. However, the charges involving K.S. occurred in January 2019.
"The essential difference between rape in the first degree and sexual misconduct is that rape requires that the act be done ‘by forcible compulsion’ and sexual misconduct requires that it be done 'without … consent.’ " Sartin v. State, 615 So. 2d 135, 136 (Ala. Crim. App. 1992).
In Ayers v. State, 594 So. 2d 719 (Ala. Crim. App. 1991), this Court considered whether the trial court erred in foiling to give a jury instruction on sexual miscon- duct as a lesser-included offense of rape because, Ayers argued, there was no evidence indicating that the victim had "external signs of trauma and otherwise fail[ed] to scream or resist her attacker." In declining to find error, this Court stated:
"Only where there is a rational theory from the evidence to support a verdict on the lesser offense may the court charge the jury with respect to the lesser included offense. § 13A-1-9(b), Code of Alabama 1975. See also Ingram v. State, 570 So. 2d 835 (Ala. Cr. App. 1990). In the present case, the evidence does not support a verdict of sexual misconduct. … There was no evidence presented at trial which suggested that the appellant’s attack on the victim took place under circumstances other those defined as rape in the first degree or sodomy in the first degree. Therefore, under the facts of this case, the appellant was not entitled to a jury charge on the offense of sexual misconduct."
A review of the record shows that K.S. did sustain injuries, although her injuries were not as extensive as those suffered by A.J. K.S. testified that Bester repeatedly beat her, that she repeatedly asked him to stop, and that every time she spoke up he would beat her again. We agree with the State there was no rational basis for an instruction on the lesser offense of sexual misconduct. There was no evidence to suggest that "the appellant’s attack on the victim took place under circumstances other [than] those defined as rape in the first degree. .. " Ayers v. State, 594 So. 2d at 721. Given the facts of the case, we hold that the circuit court did not err in declining to instruct the jury on sexual misconduct as a lesser-included offense of sexual misconduct as to victim K.S. Accordingly, Bester is due no relief on this claim.
V.
[25] Bester next argues that the circuit court erred in denying his motion for a judgment of acquittal on the theft charge because, he says, there was not sufficient evidence to convict him of theft of property in the third degree. Specifically, he argues that there was no evidence presented by the State that Bester touched or took A.J.’s debit card.
Bester does not challenge the sufficiency of the evidence to convict him of any of the other charges.
[26–28] Bester was indicted for theft of property in the third degree, a violation of § 13A-8-4.1(c), Ala. Code 1975, for "knowingly obtain[ing] or exert[ing] unauthorized control over a credit or debit card, to-wit: debit card issued to [A.J.]." (C. 348.) This section states: "The theft of a credit card or a debit card, regardless of its value, constitutes theft of property in the third degree."
" ‘Appellate courts are limited in reviewing a trial court’s denial of a motion for judgment of acquittal grounded on insufficiency.’ ‘The standard of review in determining sufficiency of evidence is whether evidence existed at the time [the defendant’s] motion for acquittal was made, from which the jury could by fair inference find the [defendant] guilty.’ Linzy v. State, 455 So. 2d 260, 26[2] (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. [1980]), 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). "When there is legal evidence from which the jury could, by fair inference, find the defendant guilty, the trial court should submit it to the jury, and, in such a case, this court will not disturb the trial court’s decision." Ward v. State, 557 So. 2d 848, 850 (Ala. Crim. App. 1990).
Dashondra Howell, an employee at Easy Money, a check-cashing store, testified that in March 2019 a woman came into the store. The woman, she said, was badly bruised and had a very swollen face. She was accompanied by a black male. Howell said that the woman was shaking and that the man was fidgeting and that every time the women would speak the male would interrupt her. (R. 243.) They were trying, she said, to send money by a Western Union transaction and were in the store for about 20 to 30 minutes. When the transaction could not be completed, they left the store.
A.J. testified that at one point during her lengthy ordeal, Bester "tried to get her to leave because he was trying to get money off my card." (R. 202.) She said that she, Bester, and "40" went to Easy Money. She testified: "Like, I was trying -- because the money, there was something wrong with -- it wasn’t being processed out. They couldn’t send it." (R. 203.) She testified that Bester did not have permission to use her debit card. (R. 203.)
The evidence showed that Bester went to Easy Money and attempted to send money through a Western Union transaction, that he used a debit card that belonged to A.J. for the transaction, and that this was done without A.J.’s permission. There was sufficient evidence presented for the circuit court to deny Bester’s motion for a judgment of acquittal.
For the foregoing reasons, we affirm Bester’s convictions for rape, kidnapping, sexual abuse, and theft as to both convictions.
AFFIRMED.
Windom, P.J., and McCool, Cole, and Minor, JJ., concur.