May 29, 2015
Darrius Javon Frye
State of Alabama
Corrected April 13, 2016.
from Escambia Circuit Court. (CC-13-0685).
Judge. Windom, P.J., and Welch and Burke, JJ., concur.
Kellum, J., concurs in the result.
Javon Frye was convicted of 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
Frye to life imprisonment for each conviction pursuant to the
Habitual Felony Offender Act, see § 13A-5-9, Ala. Code
1975. Frye was ordered to pay a $50
crime-victims-compensation assessment, court costs, and
180). A.A. testified that, sometime after the argument, Frye
appeared at her home and that L.F., who was three years old
at the time, let him inside without her knowledge. A.A.
testified that she told Frye to leave but that he closed and
locked the front door instead. A.A. testified that she
attempted to call emergency 911, but that Frye "
snatched [her cell phone] out of [her] hand and slung it down
on the couch." (R. 182.) A.A. testified that Frye then
put her in a headlock and forced her into her bedroom and
onto her bed. A.A. testified:
" A. So at this point, I'm resisting him and he
choked me again. Choked me back down to the bed. I'm
steady trying to get him off me. Choke me back down to the
bed. Every attempt it seemed like I made, he choked me
harder, you know, to the point where I said to myself,
'Well, he's going to make a mistake and kill
" So I kept trying to get him off me, but at that point
he kind of pinned my arms down. And was still choking me at
the same time. Pinned me down with his elbows.
" And then that's when he started trying to pull off
my clothes and stuff. And I made every attempt to get him off
me, but it just didn't work. At that--
" Q. Were you telling him to stop?
" A. Uh-huh. I was telling him to stop.
" Q. Telling him no?
" A. Telling him no. [I said,] 'I'm going to
call the police on you. You're going to go to prison.
This time you're going to go. You're going to go to
jail. I want you to stop. Do you see what you're doing?
Think about what you're doing.'
" Q. Was he-was he saying anything during that attack?
" A. Yeah. [He said,] 'I'm going to show
you.' ... [I]t was basically, 'I'm going to show
you that this is mine.' And really, like, 'Ain't
nobody going to believe you, you married to me,' type
thing. And, 'I'm going to do you dirt.'
That's what he said.
" ... So he was, like, the last time he said,
'I'm going to do you dirt,' he kind of had me
angled at a certain way where it was like if I moved, I
knew--it just hurt too bad. He had me. Pretty much he
" And at that point, that's when he was
attempting--he was pulling his pants down and stuff. And he
was still choking me with one hand. The other hand, every
time he'd get one loose, he would pull his pants down and
try to get himself ready, I guess. And then that's when
he penetrated me.
" Q. Was that penetrate you vaginally?
" A. Vaginally at first.
" Q. Okay. So he put his penis into your vagina?
" A. Uh-huh. And then he did that for a few times. And
then I kept--I guess he got aggravated because I just kept
fighting him. And then he was like, 'I'm going to do
you dirt. I'm going to do you dirt. I'm going to show
you.' And at that point, that's when he removed
himself from my vagina and penetrated into my anus. ..."
and Procedural History
State's evidence at trial tended to show that, on August
10, 2013, Frye forced A.A. to engage in vaginal and anal
intercourse with him. A.A. testified that Frye is her
ex-husband  and the father of her son, L.F. A.A.
stated that she and Frye did not live together after 2011 and
that, on the morning of August 10, 2013, she and Frye had an
argument during a telephone call after she requested that he
pay child support. A.A. testified:
" He was making statements like I shouldn't put him
on child support. He's going to show my ass. ... [He
said,] 'You're stupid. You ain't going to get no
money from me. I'm not going to work to make sure you
don't get no money.'
" In the middle of his ranting, he was--I guess I
wasn't responding the way he wanted me to because I was
saying I'm not worried about it. [I said,] 'I'm
just going to let the court system in Brewton handle it, take
care of it. You don't do anything for him anyway.'
And he was like, 'Well, I'm
going to show you. I'm going to show your ass.' And
at that point I hung up on him."
Mary McNew and Officer Steve Morris of the City of Atmore
Police Department testified that they responded to A.A.'s
home after she called 911 to report that she had been
sexually assaulted. Officer
McNew testified that A.A. was " visibly upset" and
that, in A.A.'s bedroom, " it appeared that there
was a small type struggle, or just the appearance of
something happened on top of the covers of the bedroom."
(R. 62, 64.) Officer Morris testified that A.A. " was
crying, real upset. And had her arms crossed to herself. And
just real upset." (R. 75.) Officer Morris testified that
he questioned A.A. and that she informed him that Frye was
the person who had raped her.
William Harris testified that, on August 10, 2013, he was
working in the emergency room at Atmore Community Hospital.
Dr. Harris testified that he performed a sexualassault
examination of A.A. and prepared a rape kit with evidence
collected from that examination. Dr. Harris testified that
A.A. " was upset and crying when she first arrived"
and that " [h]er heart rate was about 101." (R.
107, 108.) Dr. Harris testified that, during the examination,
he found blood " right outside of the vagina" and
that his observation was normal because A.A. had disclosed to
him that she was experiencing her menstrual period at that
time. (R. 108.) Dr. Harris also testified, however, that he
" found blood on the anus itself, which is a bit
unusual." (R. 109.)
testified that he was at A.A.'s house on the morning of
August 13, 2013, and that he had sexual intercourse with A.A.
while he was there. Frye testified, however, that A.A. had
consented to the intercourse and that he had not forced her
appeal, Frye contends, among other issues, that the trial
court abused its discretion and violated Rule 404(b), Ala. R.
Evid., because, he says, it erroneously admitted
collateral-bad-act evidence to prove his character and to
prove that he acted in conformity therewith on the date of
the alleged offense. Specifically, he claims that A.A.'s
testimony with respect to an incident that occurred on July
8, 2012, wherein he physically assaulted A.A., was not
admissible under the exceptions to the general exclusionary
rule to prove his motive, intent, or pattern of violence
against A.A. Because we reverse Frye's conviction on this
basis, we do not address the remaining issues he raises on
State filed a pretrial notice to introduce evidence of
Frye's prior bad acts pursuant to Rule 404(b), Ala. R.
Evid. Specifically, the notice stated that " [o]n July
8, 2012, [Frye] unlawfully entered the home of [A.A.], his
wife, and choked and otherwise assaulted her. This evidence
will be offered to prove the Defendant's motive, intent,
and pattern of violence against [A.A.]" (C. 52.) Frye
thereafter filed an objection to the State's notice on
the grounds that " [t]he July 8, 2012, alleged incident
does not prove any Rule 404(b) purpose" and " [t]he
July 8, 2012, alleged incident does not prove motive or
intent for this alleged August 10, 2013, completely separate
incident." (C. 56.)
before trial, the trial court addressed the State's
notice and Frye's objection. The State argued:
" Judge, specifically, [A.A.] is the victim in this case
and she had this history with Mr. Frye. They were married,
separated, estranged. She was living on her own in July
. Mr. Frye entered her home, committed the acts of
domestic violence against her at that time.
" And just a year and one month later, after those
charges were dropped, he's back in her home and commits
" Now, motive and intent. Motive is always relevant, and
intent is in element that we have to prove. And we were
offering that to show this history between,
specifically [A.A.] and Mr. Frye, to show his motive and
" Rape and sodomy and domestic violence are often not
sexual in nature, but often controlling or domineering as far
as the husband and wife relationship or boyfriend-girlfriend
relationship. So we feel that's relevant to show their
history and to show his motive in coming to this case."
(R. 13-14.) Frye's defense counsel replied:
" Your Honor, first of all, they say that they want to
use this July 8, 2012, incident, will be offered to prove the
defendant's motive, intent, and pattern of violence
against [A.A.] Pattern of violence against [A.A.] is another
term for, we want to prove his character and prove he acted
in conformity therewith.
" That is not under [Rule] 404(b). It doesn't say
anywhere in there how it can be used to show a pattern or
practice. It says motive, intent, lack of accident, mistake,
things like--it doesn't say pattern of violence or
pattern of conduct because that's proving conduct in
trying to prove he acted in conformity therewith. It
doesn't go to motive.
" They had--in this case, [A.A.], in her statement, says
the motive of this whole incident [on August 10, 2013,] was
to retaliate against her about child support. That's what
the State's statement in this case says. I understand
" But this other incident [on July 8, 2012,] it
doesn't--it doesn't come close to being [Rule]
" I think it is not [Rule] 404(b) evidence. And I think
their grounds for trying to get it in is in direct opposition
to what [Rule] 404(b) says. You can't use to prove
character. And that's what they're trying to
(R. 16-18.) The trial court overruled Frye's objection.
A.A. testified as to the incident that occurred on July 8,
2012, Frye objected twice on the ground that her testimony
violated Rule 404(b), Ala. R. Evid. The trial court overruled
both objections. A.A. then testified that, on July 8, 2012,
she went to a party in Bay Minette. A.A. testified:
" But while I was at the gathering in Bay Minette, I did
see Darrius Frye. ... And I guess he got upset because he saw
me in there and I didn't acknowledge him or--but need I
remind you, we weren't together.
" And I walked back out to my car with some friends to
go back home to Atmore. And he walked up to my car and he
said, 'What are you doing here? I'm going to show
you. I'm going to show you.' So, you know, I laughed
it off, blew it off. Just came back to Atmore. Dropped the
friends off. Came back home."
(R. 168). A.A. testified that when she arrived at her house,
Frye was inside. A.A. testified:
" And when he pulled the door open and snatched me in, I
was kind of in shock. I was thinking, 'Where is my kid
and where is the babysitter?'
" I walked in my house, in my living room. And my
babysitter, which was my roommate, she was standing in the
bathroom crying. And my son was over on the couch. And [Frye]
was in the living room. And at that time he hit me and pushed
me down on the couch and it was, like, choking me.
" And he was kind of going in between me and Jessica,
which was my roommate. She was standing in the bathroom, I
guess he was trying to keep his eye on both of us at the same
time. And when he would start to go towards her, at her, I
guess he would see that I was trying to make a break for it.
" I was just trying to get out of the residence and just
get to a phone. Because at that time he had kind of knocked
me down, I didn't have my phone on me.
" So I managed to escape and run across the street to
the neighbors across the street. And at that time, I guess he
took off behind me. I could hear him behind me. And I made it
to the doorway and the dogs--I could hear the dogs in the
house barking. By that time he hit me on the back of the head
and I kind of fell over into the doorway. ..."
(R. 169-70.) Frye requested a limiting instruction as to how
the jury could consider A.A.'s testimony. The trial court
" Ladies and gentlemen, I want you to kind of follow
what I'm going to explain to you. You have been hearing
questions to this witness regarding an event allegedly taking
place in July of 2012, which was about, what, a year before
the alleged act here. Year and a month maybe.
" Now, I want to make sure that you understand that the
defendant is not on trial today for anything allegedly
occurring in July of 2012. That's not what he's
charged with. He is before you today because there is a
charge, as you know, rape and sodomy allegedly occurring in
August of 2013.
" I have permitted this line of questioning, not to
permit the State to use it as far as getting you mad at the
defendant for what occurred or didn't occur in July of
'12, but limiting it only for the purpose--and we have a
rule in our evidence rules, these rules all have numbers and
names, but it's 404(b).
" Rule 404(b): And in essence, evidence of other alleged
wrongs or alleged crimes or alleged acts, that those are not
to be used by the jury to prove the character of a defendant
and that he did or did not act in conformity with this
character. It's limited only to the extent that it's
being offered by the State--and this line of questioning is
evidence that's coming in, it's being offered by the
State to prove the defendant's motive, or his intent, or
pattern of violence against this alleged victim. So I'm
limiting your understanding of what this is all about.
" He's not on trial for having any charges against
him before you for anything in July of 2012. He's not on
trial for that. And you may only consider this line of
questioning in regard to matters as you may deem it, and you
may deem it's--you give it the weight you think is
appropriate; no weight or some weight. But that the evidence
is being offered only to prove, from the State's
perspective, the defendant's motive, intent, and pattern
of violence against the alleged victim. And that's all
you can consider that line of questioning. And it may yet
continue on a little bit."
(R. 175-76.) Frye objected to the trial court's
instruction on the ground that A.A.'s testimony was not
admissible to prove motive, intent, or a pattern of violence
against A.A. The trial court overruled his objection.
Admissibility of Prior-Bad-Act Evidence
" 'The admission or exclusion of evidence is a
matter within the sound discretion of the trial court.'
Taylor v. State, 808 So.2d 1148, 1191 (Ala.Crim.App.
2000), aff'd, 808 So.2d 1215 (Ala. 2001). 'The
question of admissibility of evidence is generally left to
the discretion of the trial court, and the trial court's
determination on that question will not be reversed except
upon a clear showing of abuse of discretion.' Ex
parte Loggins, 771 So.2d 1093, 1103 (Ala. 2000). This is
equally true with
regard to the admission of collateral-bad-acts evidence. See
Davis v. State, 740 So.2d 1115, 1130 (Ala.Crim.App.
1998). See also Irvin v. State, 940 So.2d 331,
344-46 (Ala.Crim.App. 2005)."
v. State, 110 So.3d 876, 880 (Ala.Crim.App. 2012).
Further, Rule 45, Ala. R. App. P., provides:
" 'No judgment may be reversed or set aside ... on
the ground of ... improper admission or rejection of
evidence, ... unless in the opinion of the court to which the
appeal is taken or application is made, after examination of
the entire case, it should appear that the error complained
of has probably injuriously affected substantial rights of
[The Alabama Supreme] Court stated in Ex parte Crymes, 630
So.2d 125, 126 (Ala. 1993):
" '[T]his Court has stated that the reviewing court
must determine whether the " improper admission of the
evidence ... might have adversely affected the
defendant's right to a fair trial," and before the
reviewing court can affirm a judgment based upon the "
harmless error" rule, that court must find conclusively
that the trial court's error did not affect the outcome
of the trial or otherwise prejudice a substantial right of
See also Ex parte Greathouse, 624 So.2d 208, 210
(Ala 1993) (noting that the proper harmless-error inquiry
asks, absent the improperly introduced evidence, '"
is it clear beyond reasonable doubt that the jury would have
returned a verdict of guilty?" ' (quoting United
States v. Hasting, 461 U.S. 499, 511, 103 S.Ct. 1974, 76
L.Ed.2d 96 (1983)))." Towles v. State, 168
So.3d 133, 140, *17 (Ala. 2014) (emphasis in original).
State argues on appeal that A.A.'s testimony regarding
Frye's prior physical assault on her was admissible under
the motive, intent, and pattern exceptions to the general
exclusionary rule set out in Rule 404(b), Ala. R. Evid.
404(b) provides, in relevant part:
" Evidence of other crimes, wrongs, or acts is not
admissible to prove the character of a person in order to
show action in conformity therewith. It may, however, be
admissible for other purposes, such as proof of motive,
opportunity, intent, preparation, plan, knowledge, identity,
or absence of mistake or accident. ..."
Alabama Supreme Court has held:
" '" 'On the trial of a person for the
alleged commission of a particular crime, evidence of his
doing another act, which itself is a crime, is not admissible
if the only probative function of such evidence is to show
his bad character, inclination or propensity to commit the
type of crime for which he is being tried. This is a general
exclusionary rule which prevents the introduction of prior
criminal acts for the sole purpose of suggesting that the
accused is more likely to be guilty of the crime in
question.'" Pope v. State, 365 So.2d 369,
371 (Ala.Crim.App. 1978), quoting C. Gamble, McElroy's
Alabama Evidence § 69.01. (3d ed. 1977) " 'This
exclusionary rule is simply an application of the character
rule which forbids the State to prove the accused's bad
character by particular deeds. The basis for the rule lies in
the belief that the prejudicial effect of prior crimes will
far outweigh any probative value that might be gained from
them. Most agree that such evidence of prior crimes has
almost an irreversible impact upon the minds of the
jurors.'" Ex parte Arthur, 472 So.2d 665,
668 (Ala. 1985), quoting McElroy's supra, §
" '... The well-established exceptions to the
exclusionary rule include: (1) relevancy
to prove identity; (2) relevancy to prove res gestae; (3)
relevancy to prove scienter; (4) relevancy to prove intent;
(5) relevancy to show motive; (6) relevancy to prove system;
(7) relevancy to prove malice; (8) relevancy to rebut special
defenses; and (9) relevancy in various particular crimes.
Willis v. State, 449 So.2d 1258, 1260 (Ala.Crim.App.
1984); Scott v. State, 353 So.2d 36 (Ala.Crim.App.
1977). However, the fact that evidence of a prior bad act may
fit into one of these exceptions will not alone justify its
admission. " 'Judicial inquiry does not end with a
determination that the evidence of another crime is relevant
and probative of a necessary element of the charged offense.
It does not suffice simply to see if the evidence is capable
of being fitted within an exception to the rule. Rather, a
balancing test must be applied. The evidence of another
similar crime must not only be relevant, it must also be
reasonably necessary to the government's case, and it
must be plain, clear, and conclusive, before its probative
value will be held to outweigh its potential prejudicial
effects." ' Averette v. State, 469 So.2d
1371, 1374 (Ala.Crim.App. 1985), quoting United States v.
Turquitt, [557 F.2d 464] at 468-69 [(5th Cir.
parte Jackson, 33 So.3d 1279, 1284-85 (Ala. 2009)
(quoting Robinson v. State, 528 So.2d 343, 347
Regarding the motive exception to Rule 404(b), [the Alabama
Supreme] Court has stated:
" '" Motive is an inducement, or that which
leads or tempts the mind to do or commit the crime
charged." Spicer v. State, 188 Ala. 9, 26, 65
So. 972, 977 (1914). Motive is " that state of mind
which works to 'supply the reason that nudges the will
and prods the mind to indulge the criminal intent.'"
C. Gamble, Character Evidence[: A Comprehensive Approach], at
42 [(1987)]. " Furthermore, testimony offered for the
purpose of showing motive is always admissible. It is
permissible in every criminal case to show that there was an
influence, an inducement, operating on the accused, which may
have led or tempted him to commit the offense."
(Emphasis in original, citations omitted.) Bowden v.
State, 538 So.2d 1226, 1235 (Ala. 1988).'"
Towles, 168 So.3d 133, 143, *23 (quoting Ex
parte Register, 680 So.2d 225, 227 (Ala. 1994)).
State argues that A.A.'s testimony that Frye had
physically assaulted A.A. on July 8, 2012, was admissible to
show Frye's motive for sexually assaulting A.A. on August
10, 2013. Although evidence of motive is " always
admissible," the State did not show at trial and does
not argue on appeal how exactly Frye's prior assault of
A.A. motivated him to commit the now charged offenses. The
record discloses no logical explanation for how or why
Frye's previous physical assault of A.A. influenced,
induced, led, or tempted him to commit the now charged
sexual-assault offenses at issue in the instant case.
did, however, testify as to the likely motive behind
Frye's actions on August 10, 2013. A.A. stated that she
and Frye had argued about her request that he pay child
support. A.A. testified that their conversation angered him
and that Frye stated, " I'm going to show you"
before she hung up on him. A.A. testified that, shortly after
the argument, Frye appeared at her home and began to act
violently with her and eventually forced himself on her. The
State seems to bolster the position that Frye's actions
were in retaliation to A.A.'s request when it states in
its brief that
Frye " was angered because A.A. had filed for child
support." (State's brief, p. 19.) Thus, the record
suggests that the likely and more logical motive behind
Frye's sexual assault on A.A. was her request for child
support and not Frye's previous physical assault on A.A.
See Moore v. State, 878 So.2d 328, 334, 335
(Ala.Crim.App. 2003) (holding that Moore's prior
convictions were not admissible to show motive " because
there was no showing that the acts underlying the prior
convictions had a logical tendency to lead to an inference
that Moore, because he committed these prior acts, ... was
motivated to commit the now-charged crime." ).
A.A.'s testimony with respect to Frye's actions that
occurred on July 8, 2012, " shows nothing more than
[Frye]'s character is bad. This is, of course, not an
acceptable purpose for admitting evidence."
Moore, 878 So.2d at 336. Therefore, A.A.'s
testimony regarding Frye's physical assault on her was
not admissible under the motive exception to the general
" If the accused is charged with a crime that requires a
prerequisite intent, collateral crimes, acts or misconduct
are admissible to show that the accused possessed the
necessary intent. ...
" It is important to note that intent may not be
asserted, as a successful way to circumvent the general
exclusionary rule of character, unless intent is material or
of consequence to the case. This normally means that it must
be an element of the crime with which the accused is charged.
... [T]he courts have made it clear that intent must be a
genuine issue before it may be used as a channel through
which to admit collateral conduct of the accused.
" ... Whenever the prerequisite intent may be inferred
from the nature of the criminal act itself, evidence of other
crimes is inadmissible if offered to prove such intent."
Gamble, McElroy's Alabama Evidence § 69.01(5)(6th
ed. 2009)(footnotes omitted).
State argues that the evidence of Frye's physical assault
on A.A. in July 2012 was admissible under the intent
exception to the general exclusionary rule. Intent, however,
is not an element of either first-degree rape or first-degree
sodomy. Section 13A-6-61, Ala. Code 1975, provides, in
relevant part, that " [a] person commits the crime of
rape in the first degree if ... [h]e or she engages in sexual
intercourse with a member of the opposite sex by forcible
compulsion." Section 13A-6-63, Ala. Code 1975, provides,
in relevant part, that " [a] person commits the crime of
sodomy in the first degree if ... [h]e engages in deviate
sexual intercourse with another person by forcible
Court has stated:
" [B]oth sodomy and rape proscribe the prohibited act
alone without regard to the actor's intent.
" As Mitchell v. State[, 473 So.2d 591
(Ala.Crim.App. 1985),] points out, although sexual
gratification is a definitional component of the act
constituting the offense of sodomy, it is not an intent
requirement. Neither is there an intent requirement for rape.
Title 13A, Chapter 6, Article 4 of our Criminal Code defines
six sex offenses, namely: rape, sodomy, sexual misconduct,
sexual abuse, indecent exposure, and enticement. With the
exception of rape, sodomy, and sexual misconduct (which is
defined in reference either to rape or sodomy), all of these
offenses proscribe conduct performed with an intent
characterized as to 'gratify sexual desire' or
'lascivious.' Why did the Alabama legislature omit
the 'sexual gratification' or 'lascivious'
intent requirement from only
rape and sodomy? The answer is clear. One engages in an act
of sexual intercourse under the circumstances set out in the
rape statutes, or in an act of deviate sexual intercourse
under the circumstances outlined in the sodomy statutes
'at his peril.' See § § 13A-6-61 and
13A-6-62 (Commentary at 201); § § 13A-6-63 and
13A-6-64 (Commentary at 205). That is, all acts of sexual
intercourse or deviate sexual intercourse accomplished by
force or perpetrated on a child of tender years are
proscribed, without regard to intent. See Hooper v.
State, 106 Ala. 41, 17 So. 679 (1895). Society, speaking
through the legislative body, deems these acts sufficiently
harmful to justify criminalizing their performance alone,
irrespective of intent. Cf. United States v. Balint,
258 U.S. 250, 42 S.Ct. 301, 66 L.Ed. 604, T.D. 3375 (1922)
(drug seller guilty of violating federal Narcotics Act even
though he was unaware product contained opium). The rape and
sodomy statutes thus approach 'mala prohibita' or
strict liability offenses in their outright prohibition of
certain conduct regardless of mental culpability. See
generally § 13A-2-3 (Commentary at 27).
" In contrast, not all 'sexual contact' or
genital exposure, or enticement of children is or could,
constitutionally, be proscribed under the other sexual
offense statutes. 'Touching of the sexual or other
intimate parts of a person not married to the actor'
frequently occurs when people are jostled together on a
crowded bus, when someone performs artificial respiration, or
when a doctor examines a patient. Genital exposure is common
in locker rooms, and strictly speaking, enticement of
children into a vehicle is practiced every day by harried
parents ready to leave the mall."
v. State, 574 So.2d 921, 934 (Ala.Crim.App. 1990)
intent is not an element of either first-degree rape or
first-degree sodomy, A.A.'s testimony with respect to
Frye's previous assault upon her was not properly
admissible under the intent exception to the general
Pattern of Violence Against A.A.
" Evidence of the accused's commission of another
crime or act is admissible if such evidence, considered with
other evidence in the case, warrants a finding that both the
now-charged crime and such other crime or act were committed
in keeping with or pursuant to a single plan, design,
pattern, scheme, or system. This rule is applicable whether
such plan, design, pattern, scheme, or system is narrow and
specific in scope or is measurably broad and general in
scope. The majority of decisions speak of this as the plan or
scheme exception. Others, however, refer to it as proving a
system or pattern. ...
" The present purpose differs from knowledge or intent
in several respects. First, the plan, design, scheme or
pattern is not an element of the crime charged and,
consequently, is always material or of consequence in the
case. Such ever-present materiality causes the application of
the exception to focus upon whether the other acts do indeed
have a tendency to show a plan or scheme. A second difference
lies in the fact that a single collateral crime or act could
be more sufficient to show knowledge or intent but, in
contrast, it generally takes more than a single act to form a
plan or scheme. Last, a greater degree of similarity between
the charged crime and the collateral act is required when the
latter is offered to prove plan or scheme rather than
Gamble, McElroy's Alabama Evidence § 69.01(6)(6th
ed. 2009)(footnotes omitted).
Court has stated:
" '[T]he common plan, scheme, or design exception is
" essentially coextensive with the identity
exception," Ex parte Darby, 516 So.2d 786, 789 (Ala.
1987), and " applies only when identity is actually at
issue." Campbell v. State, 718 So.2d 123,
128-29 (Ala.Crim.App. 1997), cert. denied, 525 U.S. 1006, 119
S.Ct. 522, 142 L.Ed.2d 433 (1998).'"
Tariq-Madyun v. State, 59 So.3d 744, 753-54
(Ala.Crim.App. 2010) (quoting Lewis v. State, 889
So.2d 623 (Ala.Crim.App. 2003)).
testified that he and A.A. did have sexual intercourse on
August 10, 2013; therefore, the identity of A.A.'s
attacker was not at issue in this case. The material question
in this case, then, was whether the intercourse between A.A.
and Frye was consensual or whether it was accomplished by
event, the State's claim that A.A.'s testimony of
Frye's prior physical assault on her was admissible to
show his " pattern of violence against A.A." is
simply a thinly veiled attempt to introduce evidence that,
because Frye violently choked and beat A.A. on a previous
occasion, he must have violently raped and sodomized her on
the occasion in question. In other words, the State put
forth, and the trial court admitted, improper evidence of
Frye's propensity for violence to show that Frye acted in
conformity therewith--the purpose expressly prohibited by
Rule 404(b), Ala. R. Evid. See Ex parte Casey, 889 So.2d 615,
622 (Ala. 2004) (" The only tendency of the
defendant's prior convictions was the purpose prohibited
by Rule 404(b), 'to show action in conformity
therewith'--that is, to show that, since the defendant
dishonestly acquired property in 1995, he dishonestly
acquired other property in 2000." ). This evidence,
therefore, was not admissible under any exception to the
general exclusionary rule of Rule 404(b), Ala. R. Evid.
Limiting Jury Instruction
addition, the trial court's limiting instruction to the
jury that it was to consider the collateral-act evidence
strictly for the purposes of motive, intent, and pattern of
violence against A.A. did not cure the unfair prejudice that
resulted from the improper admission of A.A.'s testimony.
" A limiting curative instruction only mitigates the
prejudicial admission of illegal evidence if the instruction
is legally sound." McAdory v. State, 895 So.2d
1029, 1036 (Ala.Crim.App. 2004). A.A.'s testimony was not
properly admissible for motive, intent, or pattern of
violence against A.A., and the trial court's limiting
instruction erroneously allowed the jury to consider
A.A.'s testimony for those purposes. Therefore, the trial
court's limiting instruction to the jury was incorrect.
See R.C.W. v. State, 168 So.3d 102, 117, *37 (Ala.
2014) (" [T]he trial court's limiting instruction in
this case was erroneous because it permitted the jury to
consider the collateral-acts evidence for purposes not at
issue in this particular case." ).
45, Ala. R. App. P., provides:
" No judgment may be reversed or set aside, nor new
trial granted in any civil or criminal case on the ground of
misdirection of the jury, the giving or refusal of special
charges or the improper admission or rejection of evidence,
nor for error as to any matter of pleading or procedure,
unless in the opinion of the court to which the appeal is
taken or application is made, after an examination of the
entire cause, it should appear that the error complained of
has probably injuriously affected substantial rights of the
Alabama Supreme Court has held:
" '[B]efore the reviewing court can affirm a
judgment based upon the " harmless error" rule,
that court must
find conclusively that the trial court's error did not
affect the outcome of the trial or otherwise prejudice a
substantial right of the defendant.' Ex parte
Crymes, 630 So.2d 125, 126 (Ala. 1993) (emphasis omitted
[in Casey]). '" The basis for the [exclusionary]
rule lies in the belief that the prejudicial effect of prior
crimes will far outweigh any probative value that might be
gained from them. Most agree that such evidence of prior
crimes has almost an irreversible impact upon the minds of
the jurors." ' Ex parte Cofer, 440 So.2d
1121, 1123 (Ala. 1983), quoting C. Gamble, McElroy's
Alabama Evidence § 69.01(1) (3d ed. 1977), also quoted
in Hobbs v. State, 669 So.2d 1030, 1032
" 'The State has no absolute right to use evidence
of prior acts to prove the elements of an offense or to
buttress inferences created by other evidence. Evidence of
prior bad acts of a criminal defendant is presumptively
prejudicial to the defendant. It interjects a collateral
issue into the case which may divert the minds of the jury
from the main issue. Kilpatrick v. State, 51
Ala.App. 352, 285 So.2d 516 (1973), cert. denied, 291 Ala.
628, 285 So.2d 525 (1973). Therefore, the admission of such
evidence constitutes reversible error. Hinton v.
State, 280 Ala. 48, 189 So.2d 849 (1966).'
" Ex parte Cofer, 440 So.2d at 1124.
'" The tendency of such evidence [of another
distinct crime] to work great injury to the accused renders
its admission reversible error, unless it is brought within
one of the exceptions recognized by law." '"
Casey, 889 So.2d at 621-22.
Casey, the defendant was convicted of one count of
first-degree receiving stolen property and one count of
second-degree receiving stolen property. Casey was arrested
after " police officers found stolen tools, stereo
equipment, and compact discs in Casey's girlfriend's
apartment, where Casey often stayed, and in Casey's
girlfriend's car, which Casey often drove." 889
So.2d at 616. At trial, the State introduced evidence of
Casey's prior convictions for theft of property and
unauthorized use of a credit card. The State offered that
evidence under the intent and knowledge exceptions to Rule
404(b), Ala. R. Evid. The trial court issued the following
limiting jury instruction: " [Y]ou cannot consider the
previous crimes of the Defendant as evidence that he
committed the now-charged crimes but only as evidence of the
elements of knowledge and intent." Id. at 617.
Alabama Supreme Court held that the admission of Casey's
prior convictions violated Rule 404(b), Ala. R. Evid.,
because there was " no logical connection between his
prior theft or his prior unauthorized use of a credit card
and his knowledge of the presence, ownership, or stolen
character of any of the items he was being tried for
receiving in the case now before us." 889 So.2d at 621.
Likewise, the Court stated that a logical connection was also
lacking between Casey's intent " with the property
or the credit card of his prior convictions and what, if
anything the defendant intended with the myriad of items,
stolen and not stolen, in his girlfriend's apartment, in
her car, or indeed in any of the places the defendant might
have frequented." Id. The Court concluded that
" [t]he erroneous admission of the defendant's prior
convictions into evidence substantially increased the
likelihood that he would be convicted" and that "
[t]he 'limiting' instruction given by the trial court
to the jury did not ameliorate the prejudicial effect of the
erroneous admission of the defendant's prior
convictions." Id. at 622.
now to the instant case, the ultimate issue at trial was
sexual intercourse and deviate sexual intercourse between
A.A. and Frye was achieved by forcible compulsion. Frye
testified that it was consensual; A.A. testified that it was
not. Multiple witnesses testified that A.A. was visibly upset
after reporting that she had been raped. Officer McNew
testified that she saw what appeared to be signs of a "
small type struggle" in A.A.'s bedroom. Dr. Harris
testified that, during his examination of A.A., he found
blood on her anus and that that was " unusual."
Aside from A.A.'s and Frye's testimony, however,
there is no evidence that speaks directly and conclusively to
the issue of forcible compulsion. The outcome of the case,
therefore, depended essentially on the jurors'
perceptions of the witnesses' credibility. A.A.'s
testimony of Frye's physical assault on her " was
not 'so innocuous or cumulative that it could not have
contributed substantially to the adverse verdict.'"
McAdory, 895 So.2d at 1037. Based on the totality of
the evidence in this case, it appears that the erroneous
admission of the improper character evidence was prejudicial
to Frye and " probably injuriously affected [his]
substantial rights." Rule 45, Ala. R. App. P. In other
words, it is not clear that the jury would have returned a
guilty verdict without first hearing A.A.'s testimony
with respect to Frye's prior physical assault on her.
conclude that evidence of Frye's prior assault on A.A.
was prejudicial and that its impact substantially outweighed
its probative value. Based on the foregoing, we reverse the
judgment of the trial court and remand Frye's case for
further proceedings consistent with this opinion.
P.J., and Welch and Burke, JJ., concur. Kellum, J., concurs
in the result.
At Frye's sentencing hearing, it was
determined that Frye had one prior felony conviction for
first-degree theft of property, see § 13A-8-3, Ala. Code
To protect the victim's anonymity, we
are using her initials. See Rule 52, Ala. R. App. P.
A.A. testified that, at the time of the
trial, she and Frye were divorced but that, on August 10,
2013, the two were estranged but legally married.