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 ...