Opinion
CR-20-0674
11-10-2022
J.S. v. STATE of Alabama
Joel Lee Williams, Troy, for appellant. Steve Marshall, att’y gen., and Yvonne A.H. Saxon, asst. att’y gen., for appellee.
Joel Lee Williams, Troy, for appellant.
Steve Marshall, att’y gen., and Yvonne A.H. Saxon, asst. att’y gen., for appellee.
McCOOL, Judge.
J.S. appeals his convictions for first-degree rape, see § 13A-6-61, Ala. Code 1975, and first-degree sodomy, see § 13A-6-63, Ala. Code 1975. The trial court sentenced J.S. to life imprisonment for each conviction, the sentences to run consecutively. Facts and Procedural History
In February 2019, a Pike County grand jury indicted J.S. on charges of first-degree rape and first-degree sodomy, and each charge contained two counts. The first count of the rape charge alleged that J.S. had engaged in sexual intercourse with K.S. when she was incapable of consent by reason of being physically helpless or mentally incapacitated, see § 13A-6-61(a)(2), and the second count, which was separated from the first count by the disjunctive conjunction "or," alleged that J.S. had engaged in sexual intercourse with K.S by forcible compulsion, see § 13A-6-61(a)(1). (C. 27.) Similarly, the first count of the sodomy charge alleged that J.S. had engaged in deviate sexual intercourse with K.S. when she was incapable of consent by reason of being physically helpless or mentally incapacitated, see § 13A-6-63(a)(2), and the second count, which was again separated from the first count by the disjunctive conjunction "or," alleged that J.S. had engaged in deviate sexual intercourse with K.S. by forcible compulsion, see § 13A-6-63(a)(1). (C. 27.)
The grand jury also indicted J.S. for incest, see § 13A-13-3, Ala. Code 1975, but the State subsequently dismissed that charge.
In June 2019, J.S. filed a motion to dismiss the indictment. In support of that motion, J.S. initially noted that, because the rape and sodomy charges each contained two separate counts, it was unclear whether he was charged with two or four offenses. However, J.S. ultimately acknowledged that the separate counts for each charge were separated by the disjunctive conjunction "or"; thus, he argued that the State was required to elect whether it was charging him with committing those offenses by forcible compulsion or committing them when K.S. was incapable of consent by reason of being physically helpless or mentally incapacitated. (R. 21.) J.S. also argued that the State was required to include in the indictment "some kind of time period" in which the alleged offenses had occurred. (R. 19.) In conjunction with that motion, J.S. filed a motion for a more definite statement in which he argued that the State should be compelled to clarify those alleged deficiencies.
In response, the State argued that the indictment "clearly charged" J.S. with one rape offense and one sodomy offense (C. 83) and that it was proper for the indictment to allege alternative methods of committing those offenses. As to the fact that the indictment did not indicate when the alleged offenses had occurred, the State noted that it had provided J.S. with discovery indicating that the alleged offenses had occurred "between … [1990] to [1992] when [K.S.] was 20 to 21 years old." (R. 24.)
Following a hearing, the trial court denied J.S.’s motion to dismiss and found that the motion for a more definite statement was moot. In support of its rulings, the trial court found that, although "the charged offenses of [first-degree rape] and [first-degree sodomy] include alternative counts, said counts concern only the possible proof of or manner in which the offense was committed and do not allege multiple offenses." (C. 120.) The trial court also found that the indictment " fully and properly apprises [J.S.]. of the essential facts of the … crimes charged" and, moreover, that "the supplemental information provided by the prosecution in discovery and in response to the motion for more definite statement provides [J.S.] with the particulars of said offenses." (C. 121.)
The evidence presented at trial tended to establish the following facts. In 2019, K.S. contacted Detective Lindsey Kirkland of the Troy Police Department to report that "she had been molested by" J.S., her biological father, in the early 1990s. (R. 164.) In support of her allegation, K.S. provided Det. Kirkland with a VHS-format video recording that depicted six "scenes" of J.S. engaging in sexual activity with K.S., who was at least 19 years old at that time. After watching the VHS recording, Det. Kirkland interrogated J.S., who "admitted that he [was] the one who recorded all of those" "scenes" (R. 175) and admitted that he "would … perform oral sex" on K.S. (R. 174.) J.S. claimed, however, that he had "never [engaged in] any sexual intercourse" with K.S. (R. 174) and that he "did not force" K.S. to submit to oral sex. (R. 175.)
K.S., who is married, identified herself as K.E. at trial. We refer to her as K.S. because that is how she is identified, in the indictment.
Consistent with J.S.’s statement, there was no evidence indicating that J.S. had forced K.S. to submit to the sexual acts depicted on the VHS recording. In fact, the prosecutor acknowledged during K.S.’s testimony that, "looking at [the VHS recording], [a person] would think that [K.S.] wanted" most of the acts to occur (R. 229), and K.S. admitted that J.S. had "said all [she] had to say was, stop this, and it would have stopped." (R. 233.) However, although the evidence tended to indicate that K.S. had consented to most of the acts on the VHS recording, there was one "scene" on the recording in which she did not consent. Regarding that "scene," K.S. testified as follows:
"Q. There’s a scene on the video that we have discussed that you have no memory of; is that correct?
"A. That’s correct.
"Q. And in that scene, you appear to be laying fully undressed on a bed. Your bottom is laying on the bed. And your dad is standing and he has his clothes off.
"A. Yes.
"….
"Q. Your father is standing with no clothes on. His penis is exposed.
"A. Yes.
"Q. Do you have memory of that?
"A. No.
"Q. Have you ever seen your father’s penis?
"A. No.
"Q. In that same video, he puts his mouth on your vagina.
"A. Yes.
"Q. Do you have memory of that particular event?
"A. No.
"Q. And in that same video, he gets on top of you, his clothes off and your clothes off, and he thrusts his body upon yours. Do you have any memory of that?
"A. No.
"Q. Why not? Why don’t you have, any memory of that happening?
"A. I was unconscious."
(R. 232-36.) There was no evidence establishing the reason for K.S.’s unconsciousness during that "scene." On cross-examination, K.S. testified as follows:
"Q. … [J.S.] never exerted any physical force against you, did he?
"A. Not that I remember.
"Q. And you never offered any kind of earnest Resistance, did you?
"A. Yes, I did.
"Q. How did you do that?
"A. By telling him no, by telling him this wasn’t right, by saying, please stop, by saying, this is not okay.
"…. "Q. I’m talking about physical force. There wasn’t any, was there?
"A. No.
"Q. And you didn’t offer any earnest resistance because there was no physical force?
"….
"A. Earnest resistance, yes.
"Q. To physical force?
"A. No.
"….
Q. And you don’t have any – of your own knowledge, of ever being penetrated by him, do you?
"A. No, sir, I do not.
"Q. You can’t tell these folks that there was ever any penetration by his penis to you
"….
"A. That’s correct.
"Q. And on this occasion on this video where you say you’re unconscious, don’t you actually tell him no?
"A. It looks like I come to and say no. Yes.
"Q. And in response to you saying no, does he relent and move away?
"A. That’s what – yes. It appears that way.
"Q. So when you said no, he obeyed your command, didn’t he?
"A. That time. Yes.
"Q. And there is no occasion where he with his penis penetrated … your vagina that you know of, is there?
"A. That I know of, no.
"….
"Q. But there was no physical force, was there, ever?
"A. No.
"Q. And there was no penetration that you know of ever?
"A. Not that I know of.
"Q. And when you said no, he moved away from you, didn’t he?
"A. That’s what the videotape shows."
(R. 243-49.)
The jury convicted J.S. of the first count of both the rape and sodomy charges. That is to say, the jury found that J.S. had raped and sodomized K.S. when she was incapable of consent by reason of being physically helpless or mentally incapacitated. See § 13A-6-61(a)(2) and § 13A-6-63(a)(2). As noted, the trial court sentenced J.S. to consecutive sentences of life imprisonment. The trial court also ordered J.S. to pay $25,370 in restitution.
Sections 13A-6-61(a)(2) and 13A-6-63(a)(2) were amended in 2019 and now refer to a victim "who is incapable of consent by reason of being incapacitated." See Act No. 2019-465, Ala. Acts 2019.
Discussion
On appeal, J.S. raises multiple claims that, he says, entitle him to relief from his convictions and one claim that, he says, entitles him to relief from his sentences.
I.
J.S. argues that the prosecution of his rape and sodomy offenses was barred by the statute of limitations. As noted, those offenses occurred in the early 1990s, and, at that time, § 15-3-1, Ala. Code 1975, provided, in pertinent part, that "[t]he prosecution of all felonies, except those specified in Section[ ] … 15-3-5, must be commenced within three years after the commission of the offense." Section 15-3-5, Ala. Code 1975, provided, in pertinent part:
Section 15-3-1 was amended in 2014 and now states: "Except as otherwise provided by law, the prosecution of all felonies, except those specified in Section 15-3-3, Section 15-3-5, or any other felony that has a specified limitations period, shall be commenced within five years after the commission of the offense."
"(a) There is no limitation of time within which a prosecution must be commenced for any of the following offenses:
"(1) Any capital offense;
"(2) Any felony involving the use, attempted use, or threat of, violence to a person;
"(3) Any felony involving serious physical injury or death of a person;
"(4) Any sex offense involving a victim under 16 years of age, regardless of whether it involves force, serious physical injury, or death;
"(5) Any felony involving arson of any type;
"(6) Any felony involving forgery of any type;
"(7) Any felony involving counterfeiting; and
"(8) Any felony involving drug trafficking,"
Here, it is undisputed that the State prosecuted J.S. for his rape and sodomy offenses well beyond three years from the commission of those offenses. The question is whether § 15-3-5 excluded those offenses from the three-year statute of limitations.
[1] We first consider this issue with respect to J.S.’s rape offense. Citing Beverly v. State. 497 So. 2d 519 (Ala. 1986), J.S. "readily admits that there is authority which excepts the offense of [first-degree] rape" from a statute of limitations. (J.S.’s brief, p. 26.) J.S. is correct because Beverly held that rape, which was once punishable by death, remained a capital offense for purposes of the statute of limitations even after the death penalty was abolished for that offense. Beverly, 497 So. 2d at 527. In other words, rape is excluded from a statute of limitations pursuant to § 15-3-5(a)(1). J.S. argues, however, that Beverly is "untenable" and represents "undeniabl[e] judicial activism" in light of the plain language of § 15-3-5, which does not expressly name the offense of rape. (J.S.’s brief, p. 26.) Thus, J.S.’s sole argument in support of this claim is that Beverly should be overruled; however, "[t]his, Court is bound by the decisions of the Alabama Supreme Court and has no authority to overrule those decisions." Jones v. State, [Ms. CR-19-0485, August 6, 2021] 355 So.3d 361, 381 n.11 (Ala. Crim. App. 2021). Therefore, if J.S. is to obtain relief on this claim, he must obtain it from the Alabama Supreme Court.
Whether the prosecution of J.S.’s sodomy offense was barred by the statute of limitations is not as clear-cut. In support of that argument, J.S. cites Allen v. State, 624 So. 2d 650 (Ala. Crim. App. 1993), in which the defendant was convicted of committing first-degree sodomy pursuant to § 13A-6-63(a)(3), i.e., being at least 16 years old and committing the offense against a person who was less than 12 years old. On appeal, the defendant argued that the sodomy charge should have been dismissed because, he said, the statute of limitations had expired. This Court indeed noted that first-degree sodomy, was "subject to a three-year statutory limitations period under § 15-3-1." Allen, 624 So. 2d at 652. However, the Court held that the defendant’s particular sodomy offense was excluded from that limitations period pursuant to § 15-3-5(a)(4), which provides that there is no statute of limitations for a sex offense involving a victim under 16 years of age. Section 15-3-5(a)(4) does not apply here because it was undisputed that K.S. was at least 19 years old when the sodomy offense occurred. Thus, relying on Allen, J.S., argues that his sodomy offense was subject to a three-year statute of limitations.
The State argues, however, that first-degree sodomy is "a ‘violent’ crime" (State’s brief, p. 20) and, as such, is not susceptible to-a statute of limitations pur- suant to § 15-3-5(a)(2), which provides that there is no statute of limitations for any felony "involving the use, attempted use, or threat of, violence to a person." In support of its argument, the State cites Williams v. State, 494 So. 2d 819 (Ala. Crim. App. 1986), in which the defendant was convicted of first-degree sodomy pursuant to § 13A-6-63(a)(l), i.e., sodomy by forcible compulsion. The statute of limitations was not at issue in Williams; instead, the Court considered the constitutionality of "a ‘marital exception’ for forcible sodomy" that existed at that time. Williams, 494 So. 2d at 825. However, in holding that the martial exception was unconstitutional, the Court stated that "[f]orcible sodomy is a crime of violence, not of sex." Id. at 830. Thus, Williams provides support for the conclusion that, pursuant to § 15-3-5(a)(2), there is no statute of limitations for first-degree sodomy committed by forcible compulsion.
In response, J.S. correctly argues that, unlike the defendant in Williams, he was not convicted of committing first-degree sodomy by forcible compulsion; instead, he was convicted of committing that offense when K.S. was incapable of consent by reason of being physically helpless or mentally incapacitated, and there was no evidence indicating that he used any physical force against K.S. other than the sexual act itself. Thus, according to J.S., his sodomy offense was not a violent offense and was therefore subject to a three-year statute of limitations.
In short, then, the parties’ disagreement raises the following question: Does the offense of sodomy involve the Use of violence when the offense is committed against a person who lacks the capacity to consent, even though the offense does not involve threats or any physical force beyond the sexual act itself? If the answer is yes, then J.S.’s sodomy offense was not subject to a statute of limitations pursuant to § 15-3-5(a)(2), which provides that there is no limitations period for a felony involving "the use, attempted use, or threat of, violence to a person." If the answer is no, however, then J.S.’s sodomy offense was subject to a three-year statute of limitations because no other exception in § 15-3-5(a) encompasses that offense. Essentially, J.S. would have this Court limit the term "violence" in the context of a sodomy offense to only those situations in which the perpetrator threatens the victim or uses some degree of physical force beyond the sexual act itself. Although the term "violence" in the context of a sodomy offense might often connote such images, it is incorrect to so narrowly limit the term.
We first note that the Alabama Legislature has not defined "violence" for purposes of § 15-3-5(a)(2). However, for purposes of the Alabama Sentencing Reform Act of 2003, the legislature has classified both first-degree sodomy and second-degree sodomy as "violent offenses." See § 12-25-32(15), Ala. Code 1975. As to which offenses qualify as "violent offenses" for purposes of that act, the legislature has stated;
"The basis for defining these offenses as violent is that each offense meets at least one of the following criteria:
"1. Has as an element, the use, attempted use, or threatened use of a deadly weapon or dangerous instrument or physical force against the person of another.
"2. Involves a substantial risk of physical injury against the person of another.
"3. Is a nonconsensual sex offense.
"4. Is particularly reprehensible."
§ 12-25-32(15)b., Ala. Code 1975 (emphasis added). Thus, it is clear that the legislature considers the offense of sodomy to be inherently violent when the offense is committed against a person who lacks the capacity to consent, such as a person who is incapacitated. See § 13A-6-70(c)(2), Ala. Code 1975 (providing that a person who is incapacitated is deemed incapable of consenting to a sexual act). Although this classification occurs in a different context, we fail to see why the legislature would consider first-degree sodomy to be a violent offense for purposes of sentencing but would not consider it to be a violent offense for purposes of the statute of limitations. See Lee v. State, 74 So. 3d 101, 104 (Ala. Crim. App. 2011) (looking to the legislature’s classification of violent offenses in § 12-25-32 to determine whether the defendant had been convicted of a "nonviolent offense" because the statute at issue did not define "nonviolent offense").
Other jurisdictions have also concluded that a sex offense involves the use of violence when the offense is committed against a person who lacks the capacity to consent, even though the offense does not involve threats or any physical force beyond the sexual act itself. In Taylor v. State, 122 So. 3d 707 (Miss. 2013), the Mississippi Supreme Court considered whether the defendant’s prior conviction for sexual intercourse with a child was a crime of violence. The defendant argued, much like J.S. argues here, that his prior sex offense was not a crime of violence because, he said, there, was "absolutely no implication that a violent act took place during the commission of [that] felony." Id. at 709. The Taylor Court rejected that argument, concluding that "‘"[v]iolence" is a relative term’" and that "‘[n]o particular degree of force is required to constitute violence.’" Id. at 712 (quoting McQueen v. State, 473 So. 2d 971, 973 (Miss. 1985) (emphasis omitted)). Instead, the Court reasoned, violence consists of "‘any application of force’" that is "‘unlawfully exercised’" against another person, "‘even though it entails no pain or bodily harm and leaves no mark.’" Id. (quoting McQueen, 473 So. 2d at 973 (some emphasis omitted)). With that understanding of violence in mind, the Court held:
"Sexual intercourse between an underage child and an adult clearly is a crime of violence, for sexual intercourse cannot occur without the exertion of some degree of physical force, even if it entails no pain or bodily harm and leaves no mark. Under Mississippi law, such force is ‘unlawfully exercised’ and is ‘against the law.’
"The same is true for any other sex-crime victim who lacks the capacity to consent. It matters not whether a victim is a ninety-year-old Alzheimer’s patient or a one-day-old infant, whether he or she is a mentally handicapped person or a child. No overt act of resistance to force or violence, no matter how slight, is required for sex crimes against such defenseless victims to be crimes of violence."
Taylor, 122 So. 3d at 712 (emphasis added; footnote omitted). Although the sex offense at issue in Taylor involved sexual intercourse, the Court noted that its holding mirrored a prior case in which the Court had held that a sodomy offense was a crime of violence, even though the offense did not involve any physical force beyond the sexual act itself. See id. at 713 (citing Bandy v. State, 495 So. 2d 486 (Miss. 1986)). In fact, Taylor provides support for the conclusion that, in the eyes of the law, any nonconsensual sexual contact with another person is a violent act. We recognize that the Taylor Court was specifically dealing with a sex offense committed against a child, but the Court made it clear that its analysis applied with equal force to a sex offense committed against any person who lacks the capacity to consent.
Courts from other jurisdictions have reached the same conclusion. See People v. Miranda, 199 Cal. App. 4th 1403, 1428, 132 Cal. Rptr.3d 315, 335 (2011) ("At- tempted rape, oral copulation, and sexual penetration of a person incapable of giving legal consent due to mental, developmental, or physical disability, regardless of the age of the victim, are violent, non-consensual crimes." (emphasis added)); State v. Holden, 338 N.C. ’394, 406, 450 S.E.2d 878, 884 (1994) (holding that "[t]he acts of having or attempting to have sexual intercourse with another person who is mentally defective or incapacitated and statutorily deemed incapable of consenting – just as with a person who refuses to consent – involve the ‘use or threat of violence to the person’"); State ex rel. Spaulding v. Watt, 188 W. Va. 124, 126, 423 S.E.2d 217, 219 (1992) (holding that a sex offense committed against a child was a crime of violence, even though it did not involve "forcible compulsion," and, in support of that holding, noting that sexual offenses "result in severe emotional and psychological harm" to the victim); Jarrett v. State, 166 Ind. App. 19, 20, 333 N.E.2d 794, 795 (1975) (noting that, "where the female is incapable of consent, the attempt to have intercourse" with her is "the attempt … to commit ‘a violent injury’"); United States v. Romero-Hernandez, 505 F.3d 1082, 1087, 1088 (10th Cir. 2007) (holding that a sex offense that was "not necessarily achieved by physical force" was a violent offense; ‘[t]o lay one’s finger on another person without lawful justification is as much a forcible injury in the eye of the law … as to beat him with a stick’" (quoting Black’s Law Dictionary 674 (8th ed. 2004))); and United States v. Remoi, 404 F.3d 789, 794 (3d Cir. 2005) (holding that a sexual offense that was committed "through exploitation of the victim’s helplessness" was a violent offense).
[2] Based on the foregoing, we hold that the offense of sodomy involves the use of violence when it is committed against a person who lacks the capacity to consent. The legislature’s classification of sodomy as a "violent offense" in § 12-25-32 supports this conclusion, and we agree with those courts that have reached the same conclusion. To be sure, an act of sodomy committed against such a person might not require the use of threats or any physical force beyond the sexual act itself, but violence is not limited to threats and physical force. An act of sodomy committed against a person who lacks the capacity to consent is an incredibly invasive physical act in which the perpetrator sexually exploits the victim’s helplessness, and such invasive sexual conduct certainly carries the risk - if not the certainty – of "severe emotional and psychological harm" to the victim. Watt, 188 W. Va. at 126, 423 S.E.2d at 219. To conclude that such a heinous act is not violent simply because the perpetrator did not threaten the victim or use any physical force beyond the sexual act itself would be to ignore this reality.
In this case, J.S. was convicted of sodomizing K.S. when she was incapable of consent by reason of being physically helpless or mentally incapacitated. Because such an offense involves the use of violence, it is not subject to a statute of limitations pursuant to § 15-3-5(a)(2). Therefore, the trial court did not err by refusing to dismiss the sodomy charge against J.S., and he is entitled to no relief on this claim.
II.
[3, 4] J.S. argues that his convictions are void because, he says, the trial court failed to arraign him. However, J.S. did not raise this claim before the jury returned a verdict. Instead, J.S. raised this claim for the first time when he filed a motion to set aside the restitution order following the sentencing hearing, and even then he argued that the alleged lack of arraignment rendered only the restitution order void, not that it rendered his convic- tions void. (C. 237.) "[A defendant’s] claim that the trial court was without jurisdiction to render judgment and to impose sentence because [the defendant] was never arraigned is a claim that is waived … ‘by [the] defendant’s failure to object to the lack thereof until after the jury has returned a verdict.’" Mitchell y. State, 777 So. 2d 312, 313 (Ala. Crim. App. 2000) (quoting Smith v. State, 507 So. 2d 579, 580 (Ala. Crim. App. 1987)). Thus, J.S. cannot obtain relief on this claim on appeal.
III.
[5–7] J.S. argues that the trial court erred by admitting the VHS recording of the offenses because, he says, the State failed to authenticate one of the six "scenes" on the recording. In support of that argument, J.S. points to K.S.’s testimony that she had no memory of the acts portrayed in that "scene." Our review of this claim is subject to the principle that "a trial court has substantial discretion in determining the admissibility of evidence, and this Court will reverse a court’s judgment only when there has been a clear showing of an abuse of discretion." Capote v. State, 323 So. 3d 104, 131 (Ala. Crim. App. 2020).
J.S. appears to concede that the other five "scenes" were authenticated by K.S.’s testimony that she remembered the acts portrayed therein. (J.S.’s brief, p. 37.) To the extent J.S. purports to challenge the admissibility of those "scenes," that claim is not preserved for appellate review because, at trial, he argued only that the State had not authenticated the one "scene" that K.S. did not remember, (R. 234, 261-62.) See A.Z. v. State, 248 So. 3d 27, 36 (Ala. Crim. App. 2017) (noting that an appellant is "‘bound by grounds of objection stated at trial and may not expand those grounds on appeal’" (quoting Griffin v. State, 591 So. 2d 547, 550 (Ala. Crim. App. 1991))).
[8, 9] Video recordings "may be admissible under the pictorial-communication theory or the silent-witness theory," which are "‘"mutually exclusive theories."’" Capote, 323 So. 3d at 132 (quoting Spradley v. State, 128 So. 3d 774, 781 (Ala. Crim. App. 2011), quoting in turn Ex parte Fuller, 620 So. 2d 675, 678 (Ala. 1993)). In other words, the proponent of a video recording need not authenticate the recording under both theories, and which theory is appropriate depends upon the specific circumstances of each case. Capote, 323 So. 3d at 132. Under the pictorial-communication theory, a video recording may be authenticated by a person who has "‘sufficient personal knowledge of the scene or events pictured’" and acknowledges that the recording ‘"accurately and reliably represents the actual scene or sounds.’" McCray v. State, 88 So. 3d 1, 62 (Ala. Crim. App. 2010) (quoting Ex parte Fuller, 620 So. 2d at 678). See also Ex parte Weddington, 843 So. 2d 750, 756 (Ala. 2002) (noting that, under the pictorial-communication theory, "a person who was present at the time the recording was made can authenticate the recording by stating that it is consistent with his recollection"); and Rule 901(b)(1), Ala. R. Evid. (providing that evidence may be authenticated by "[t]estimony that a matter is what it is claimed to be").
In this case, Det. Kirkland testified as follows regarding her interrogation of J.S,:
"Q. All right. Now, let’s talk a little bit about, the conversation you had with [J.S.] …. Tell us what you discussed with [J.S.].
"A. Well, we … discussed a lot, but we got down to what had happened between him and [K.S.].
"….
"Q. Did you learn that the video was created by him?
"A. Yes, ma’am.
"Q. Okay. Tell us a little bit about that. "A. He … had a video recorder that he placed in a – I guess you’d call it an antique fireplace. And he would set it up and perform oral sex. He admitted to using vibrators on her, oral sex, but never any sexual intercourse.
"….
"Q. … Did you learn how many … times did he film he and his daughter?
"A. I don’t know how many times overall, but I know there was six sections … that were on that VHS tape.
"….
"Q. But he … admitted that he is the one who recorded all of those?
"A. Yes, ma’am."
(R. 173-75.)
In Ex parte Weddington, supra, the Alabama Supreme Court, applying the pictorial-communication theory, held that the State had properly authenticated a video recording that depicted the defendant sexually molesting the victim because the defendant’s admission that he was the person on the recording "support[ed] the accuracy of the videotape." Ex parte Weddington, 843 So. 2d at 757. Similarly, J.S. admitted to Det. Kirkland that he had filmed each of the six "scenes" on the VHS recording, and he did not contend that he was not the person on that recording, Thus, J.S.’s admission supported the accuracy of the VHS recording, which provided sufficient authentication of the recording. We acknowledge J.S.’s argument that his admission was insufficient to authenticate the VHS recording because, he says, he "only admitted to making videos, not necessarily those admitted into evidence." (J.S.’s reply brief, p. 16.) This argument fails, however, because it is clear from Det. Kirkland’s testimony that the video recording J.S. admitted to producing was the VHS recording of the offenses. Accordingly, the trial court did not abuse its discretion by admitting the VHS recording.
IV.
[10] J.S. challenges the validity of the indictment, arguing as he did below that it was improper for the State to allege alternative means by which he had committed the alleged offenses and that the indictment did not indicate when the alleged offenses had occurred. There is no merit to these arguments.
"‘An indictment is multiplicitous if a single offense is charged in more than one count, thereby possibly prejudicing the defendant by suggesting that more than one offense had been committed.’ Dill v. State, 723 So. 2d 787, 808 (Ala. Crim. App. 1998).
"However, this Court has previously held:
"‘A single transaction may give rise to the charging of multiple counts in an indictment when the purpose of charging multiple counts is to vary the description of the same offense in order to meet "every probable contingency of evidence" and not to convict the accused of all alternative counts contained in the indictment.’
"George v. State, 717 So. 2d 827, 832 (Ala. Crim. App. 1996), reversed and remanded with directions, 717 So. 2d 844 (Ala. 1996), on remand, 717 So. 2d 849 (Ala. Crim. App. 1997), affd, 717 So. 2d 858 (Ala. 1998)."
Parks v. State, 989 So. 2d 626, 633-34 (Ala, Crim. App. 2007).
In Smith v. State, 797 So. 2d 503 (Ala. Crim. App. 2000), this Court considered whether an indictment was defective for charging the defendant with a single offense in two separate counts. In concluding that the indictment was not defective, the Court stated:
"Section 15-8-50[, Ala. Code 1975,] states, ‘When an offense may be committed by, different means or with different intents, such means or intents may be
alleged in an indictment in the same count in the alternative.’ (Emphasis added.)
"The only difference in the two counts of the indictment was that one count tracked the language of § 13A-6-43(a)(3), [Ala. Code 1975,] kidnapping to accomplish or aid in the commission of a felony, murder, and the other count tracked the language of § 13A-6-43(a)(4), [Ala. Code 1975,] kidnapping by abducting the person to inflict physical injury upon her, or to violate or abuse her sexually.’ The two counts were alternative means of proving the capital offense of kidnapping-murder. Section 15-8-50 does not require that alternative methods be contained in the same count in the indictment. This statute uses the permissive word ‘may.’ The trial court did not err in failing to dismiss the indictment."
Smith, 797 So. 2d at 517 (emphasis added).
[11] In this case, the indictment charged J.S. with first-degree rape and first-degree sodomy. Although each of those charges included two counts, the separate counts were merely "alternative means of proving" that J.S. had committed the singular offenses, which is proper. Smith, 797 So. 2d at 517. Also, framing the indictment in this manner did hot prejudice J.S. by suggesting that he had been charged with multiple rape offenses and multiple sodomy offenses. As noted, in both the rape charge and the sodomy charge, the two counts were separated by the disjunctive conjunction "or," which indicated that the State had charged J.S. with one rape offense and one sodomy offense.
[12, 13] As to J.S.’s claim that the indictment did not indicate when the alleged offenses had occurred, Rule 13.2(d), Ala. R. Crim. P., provides that an indictment need not "state the precise time or date at which or on which the offense is alleged to have been committed … unless the time … is a material element of the offense." Rather, "‘[a]n indictment is sufficient if it charges an offense in the language of a statute’" because, "‘"[u]nder our system of pleading, indictments are … a statement of legal conclusions, [not] of facts."’" State v. Davis, 195 So. 3d 1067, 1069 (Ala. Crim. App. 2015) (quoting Ex parte Behel, 397 So. 2d 163, 165 (Ala. 1981), quoting in turn Hochman v. State, 265 Ala. 1, 3, 91 So. 2d 500, 501 (1956)). See also Cure v. State, 600 So. 2d 415, 420-21 (Ala. Crim. App. 1992) ("‘It is not necessary to state thè precise time at which an offense was committed in an indictment, but it may be alleged to have been committed on any day before the finding of the indictment, or generally before the finding of the indictment, unless time is a material ingredient of the offense.’" (quoting Coburn v. State, 424 So. 2d 665, 667 (Ala. Crim. App. 1982))).
In this case, the rape charge tracked the language of § 13A-6-61(a)(l) and (2) as the statute existed at the time of the alleged offense; respectively, those subsections required proof of sexual intercourse "by forcible compulsion" and sexual intercourse with a person who was "incapable of consent by reason of being physically helpless or mentally incapacitated." Similarly, the sodomy charge tracked the language of § 13A-6-63(a)(1) and (2) as the statute existed at the time of the alleged offense; respectively, those subsections required proof of sodomy "by forcible compulsion" and sodomy committed against a person who was "incapable of consent by reason of being physically helpless or mentally incapacitated." Thus, the dates on which the alleged rape and sodomy offenses occurred were not elements of the offenses and, consequently, were not required in the indictment. See Cure, 600 So. 2d at 420, 421 (holding that indictments charging the defendants with first-degree rape and first-degree sodomy, both by forcible com- pulsion, "were not required to allege the time … of the alleged offenses" because "[t]ime is not a material" element of those offenses). Moreover, J.S.’s due-process rights were protected by the State’s disclosure that the alleged offenses had occurred "between … [1990] to [1992] when [K.S.] was 20 to 21 years old." See Davis, 195 So. 3d at 1069 n.1 ("To comply with due process, the Alabama Supreme Court provides a procedure by which a defendant may seek a more definite statement to learn the means by which he is accused of committing the charge[d] offense. See Rule 13.2(e) Ala. R. Crim. P.").
For the foregoing reasons, the trial court did not err by refusing to dismiss the indictment.
V.
[14–21] J.S. argues that the trial court erred by denying his motion for a judgment of acquittal because, he says, the State’s evidence was insufficient to sustain his rape conviction.
J.S. does not argue that the State’s evidence was insufficient to sustain his sodomy conviction.
"‘"In determining the sufficiency of the evidence to sustain a conviction, a reviewing court must accept as true all evidence introduced by the State, accord the State all legitimate inferences therefrom, and consider all evidence in a light most favorable to the prosecution."’ Ballenger v. State, 720 So. 2d 1033, 1034 (Ala. Crim. App. 1998) (quoting Faircloth v. State. 471 So. 2d 485, 488 (Ala. Crim. App. 1984)). ‘"The test used in determining the sufficiency of the evidence to sustain a conviction is whether, viewing the evidence in the light most favorable to the prosecution, a rational finder of fact could have found the defendant guilty beyond a reasonable doubt."’ Nunn v. State, 697 So. 2d 497, 498 (Ala. Crim. App, 1997) (quoting O’Neal v. State. 602 So. 2d 462, 464 (Ala. Crim. App. 1992)).
"‘"‘When there is legal evidence from which the jury could, by fair inference, find the defendant guilty, the trial court should submit [the case] to the jury, and, in such a case, this court will not disturb the trial court’s decision.’" Farrior v. State, 728 So. 2d 691, 696 (Ala. Crim. App. 1998), quoting Ward v. State, 557 So. 2d 848, 850 (Ala. Crim. App. 1990). "The role of appellate courts is not to say what the facts are. Our role … is to judge whether the evidence is legally sufficient to allow submission of an issue for decision [by] the jury." Ex parte Bankston, 358 So. 2d 1040, 1042 (Ala. 1978).’
"Gavin v. State, 891 So. 2d 907, 974 (Ala. Crim. App. 2003) (quoting Ward v. State, 610 So. 2d 1190, 1191 (Ala. Crim. App. 1992)).
"‘"‘"Circumstantial evidence alone is enough to support a guilty verdict of the most heinous crime, provided the jury believes beyond a reasonable doubt that the accused is guilty." White v. State, 294 Ala. 265, 272, 314 So. 2d 857, cert. denied, 423 U.S. 951, 96 S. Ct. 373, 46 L.Ed. 2d 288 (1975). "Circumstantial evidence is in nowise considered inferior evidence and is entitled to the same weight as direct evidence provided it points to the guilt of the accused." Cochran v. State, 500 So. 2d 1161, 1177 (Ala. Cr. App. 1984), affirmed in pertinent part, reversed in part on other grounds, Ex parte Cochran, 500 So. 2d 1179 (Ala. 1985).’"
"‘Hollaway v. State, 978 So. 2d 839, 843 (Ala. Crim, App. 2007) (quoting White v. Stats, 546 So. 2d 1014, 1017 (Ala, Crim. App. 1989)).
"‘"‘In reviewing a conviction based on circumstantial evidence, this court must view the evidence in the light moat favorable to the prosecution, The test to be applied is whether the jury might reasonably find that the evidence excluded every reasonable hypothesis except that of guilt; not whether such evidence excludes every reasonable hypothesis but guilt, but whether a jury might reasonably so conclude. United States v. Black, 497 F.2d 1089 (5th Cir. 1974); United States v. McGlamory, 441 F.2d 130 (5th Cir. 1971); Clark v. United States, 293 F.2d 445 (5th Cir. 1961).’"
"‘Bradford v. State, 948 So. 2d 574, 578-79 (Ala. Crim. App. 2006) (quoting Cumbo v. State, 368 So. 2d 871, 874-75 (Ala. Crim. App. 1978)).’
"Chambers v. State, 181 So. 3d 429, 434 (Ala. Crim. App. 2015)."
Hughes v. State, 315 So. 3d 1139, 1156-57 (Ala. Crim. App. 2020).
[22] At the time J.S. committed the alleged rape, § 13A-6-61(a)(2) provided that "[a] male commits the crime of rape in the first degree if … [h]e engages in sexual intercourse with a female who is incapable of consent by reason of being physically helpless or mentally incapacitated." The term "sexual intercourse" "has its ordinary meaning and occurs upon any penetration, however slight; emission is not required." § 13A-6-60(4), Ala. Code 1975 (formerly § 13A-6-60(1)).
According to J.S., the State’s evidence was insufficient to support a first-degree-rape conviction because, he says, there was no evidence of penetration. In support of that claim, J.S. points to K.S.’s testimony that she had no knowledge of any "occasion where [J.S.] with his penis penetrated … [her] vagina." In addition, J.S. points to the fact that there "was no medical or scientific evidence" to support a finding of penetration and that there "is no actual visible penetration" on the VHS recording. (J.S.’s brief, p. 54.)
[28–25] However, "[w]hether there is ‘actual, penetration’ is a question for the jury," and "‘penetration can be established by circumstantial evidence,’" Boyd v. State, 699 So. 2d 967, 970 (Ala, Crim, App. 1997) (quoting Swain v. State, 629 So. 2d 699, 700-01 (Ala. 1993)). Here, in one of the "scenes" on the VHS recording, which the jury viewed, both J.S. and K.S. are fully unclothed, and J.S. "gets on top of [K.S.] … and thrusts his body upon [hers]." That "scene," when construed in a light most favorable to the State, constituted circumstantial evidence upon which the jury could find that J.S.’s penis penetrated K.S.’s vagina; indeed, in determining whether the State’s evidence establishes a defendant’s guilt, a jury is required to "‘use common sense, common reason, and common observation as well as a common knowledge of the usual acts of men and women under given circumstances.’" German v. State, 429 So. 2d 1138, 1143 (Ala. Crim. App. 1982) (quoting Thompson v. State, 21 Ala. App. 498, 499, 109 So. 557 (1926)). As noted, J.S. points to the fact that K.S.’s testimony does not support a finding of penetration. That much is true, but, contrary to J.S.’s contention, K.S.’s testimony also does not conflict with a finding of penetration. This is so because K.S. merely testified that she had no knowledge of penetration given that she was unconscious when the rape occurred. Thus, the trial court did not err by submitting the rape charge to the jury, thereby allowing the jury to decide the issue of penetration. Compare Matter of J.D., 376 N.C. 148, 157, 852 S.E.2d 36, 44 (2020) (holding that the State failed to present sufficient evidence of penetration where a video recording depicted the defendant "thrusting himself towards [the victim] while behind him with his pants pulled down" but where the victim "explicitly denied that any … penetration had occurred").
VI.
[26] J.S. argues that the trial court abused its discretion by sentencing him to consecutive sentences of life imprisonment; he also argues that those sentences are "so excessive as to violate the Eighth Amendment to the United States Constitution," which prohibits cruel and unusual punishment. (J.S.’s brief, p. 38.) However, J.S. did not raise these claims below and thus failed to preserve the claims for appellate review. See Adams v. State, 815 So. 2d 583, 584 (Ala. Crim. App. 2001) (holding that a claim that the trial court abused its discretion in sentencing was not preserved for appellate review because the defendant did not raise the claim in the trial court); and Born v. State, 331 So. 3d 626, 636 (Ala. Crim. App. 2020) (holding that a claim that a sentences violates the Eighth Amendment was not preserved for appellate review because the defendant did not raise the claim in the trial court). Accordingly, J.S. cannot obtain relief on these claims on appeal.
Conclusion
J.S. has not demonstrated any error that requires the reversal of his convictions or sentences. Accordingly, the judgment of the trial court is affirmed.
AFFIRMED.
Windom, P.J., and Kellum, Cole, and Minor, JJ., concur.