Appeal from Mobile Circuit Court. (CC-09-4194.80).
REVERSED AND REMANDED.
For Appellant: Christine C. Hernandez, Mobile.
For Appellee: Luther Strange, Atty. Gen., and Yvonne A.H. Saxon, Asst. Atty. Gen.
Windom, P.J., concurs. Kellum and Burke, JJ., concur in the result. Welch, J., dissents.
Che Dechaune Marks was convicted of first-degree rape by forcible compulsion, see § 13A-6-61(a)(1), Ala. Code 1975, and was sentenced as a habitual felon to life imprisonment without the possibility of parole. Marks appeals.
The evidence at trial tended to show that on May 15, 2009, Marks forced I.C. to engage in sexual intercourse with him. I.C. testified that she dialed a wrong number on her cellular telephone and hung up after she realized it was a wrong number. A male called her phone back and identified himself as " Chevy." I.C. stated that she knew someone named Chevy and that the caller wanted " to come over and show [her] who he was." (R. 179-80.)
I.C. testified that Marks arrived at her apartment-complex parking lot between 11:00 p.m. and 12:00 a.m. and that she did not recognize him. I.C. stated that she and Marks began talking in the parking lot and that he then pulled a gun on her and directed her to a nearby abandoned apartment. Marks threatened to kill her if she resisted. Once inside the apartment, Marks raped I.C.
I.C. reported the rape to the Mobile Police Department the next day. Cpl. Michael Shavers of the Mobile Police Department provided I.C. with recording equipment and instructed her to record telephone calls between herself and Marks. During one call, Marks told I.C. to " lay low," to go take a bath, and to go
to sleep and call him the next day. (State's Exhibit 9, Track #1.) In another conversation, I.C. told Marks that her stomach hurt because of the painful intercourse, and Marks replied that he knew she was not pregnant because he had used a condom. I.C. also told Marks that he had not needed to " take it like that" because he was a handsome man and the two would have had sex eventually. (State's Exhibit 9, Track #3.) Marks asked I.C. why she continued to talk about the incident because he thought they had put it behind them.
The State filed a motion to introduce evidence under Rule 404(b), Ala. R. Evid., in the form of testimony from two women, S.S. and T.F., who claimed that Marks had sexually assaulted them. The State asserted that its purpose in introducing the evidence was " to prove motive, opportunity, plan, knowledge, and identity of the defendant in the instant case." (C. 73.) In support of its position that the circumstances of I.C.'s case were similar to the sexual assaults of S.S. and T.F., the motion stated:
" 1) The instant rape is alleged to have occurred on May 15, 2009. [S.S.] alleges to have been raped during the first week of May 2009 and [T.F.] alleges to have been raped May 9, 2009.
" 2) All 3 offenses took place in close physical proximity to one another.
" 3) All 3 offenses took place between 11:00 p.m. and 4:00 a.m.
" 4) A gun was seen or alluded to in all 3 cases.
" 5) All 3 individuals identified their assailant as a black male known to them as 'Chevy' and who they subsequently each identified as this defendant.
" 6) In each case, the assailant allegedly made initial penetration from behind the victim, into her vagina, then, in 2 instances proceeded to then make anal entry, also from behind the victim.
" 7) In each offense, the defendant allegedly threatened to kill the victim and her family, specifically, younger children, if the victim reported the crime.
" 8) In each instance, the defendant allegedly made subsequent text contact with the victim, alleging that the victim was now his girlfriend and was not ...