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Frye v. State

Alabama Court of Criminal Appeals

May 29, 2015

Darrius Javon Frye
State of Alabama

         As Corrected April 13, 2016.

          Appeal from Escambia Circuit Court. (CC-13-0685).

         JOINER, Judge. Windom, P.J., and Welch and Burke, JJ., concur. Kellum, J., concurs in the result.


Page 1157

          JOINER, Judge.

         Darrius 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.[1] Frye was ordered to pay a $50 crime-victims-compensation assessment, court costs, and restitution.

         (R. 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 you.'
" 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 overpowered me.
" 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. ..."

(R. 185-87.)

         Facts and Procedural History

         The State's evidence at trial tended to show that, on August 10, 2013, Frye forced A.A.[2] to engage in vaginal and anal intercourse with him. A.A. testified that Frye is her ex-husband [3] 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

Page 1158

going to show you. I'm going to show your ass.' And at that point I hung up on him."

         Officer 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

Page 1159

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.

         Dr. 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.)

         Frye 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 to participate.


         On 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 appeal.

         The 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.)

         Immediately 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 [2012]. 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 this crime.
" Now, motive and intent. Motive is always relevant, and intent is in element that we have to prove. And we were offering that ...

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