State of Alabama
from Calhoun Circuit Court (CC-14-1455 and CC-14-1456)
was convicted of first-degree sodomy, see §
13A-6-63, Ala. Code 1975, and first-degree sexual abuse,
see § 13A-6-66, Ala. Code 1975. Pursuant to
§ 13A-5-6(d), Ala. Code 1975, E.L.Y. was sentenced to
life imprisonment without the possibility of parole for the
sodomy conviction because the victim was 6 years of age or
less and E.L.Y. was 21 years of age or older when the offense
was committed. He was also sentenced to a concurrent term of
20 years' imprisonment for the sexual-abuse conviction.
This appeal follows.
evidence presented at trial revealed the following. E.L.Y.,
his wife, E.Y., and their four children lived in Thailand
from October 2013 until February 2014. E.L.Y. and his wife
worked as missionaries. In January 2014, E.Y. walked into a
room in their house and saw their six-year-old daughter,
C.Y., sitting on the bed with her skirt pulled up and her
underwear around her ankles. (R. 531.) E.Y. stated that she
became upset and began asking "what is going on"
over and over again. (R. 533.) E.L.Y. then came out of the
bathroom with shaving cream on his face and said that he did
not know what she was talking about. E.L.Y. then explained to
E.Y. that he had been cuddling with C.Y. when C.Y. complained
that his facial hair bothered her. Therefore, E.L.Y. said, he
had gone into the bathroom to shave. E.Y. testified that C.Y.
would not respond when she asked her what had happened. E.Y.
testified that E.L.Y. became very upset when she continued to
ask him about the situation.
stated that she talked to C.Y. again later that evening.
According to E.Y., C.Y. told her that E.L.Y. "licked her
private parts." (R. 541.) The next day, C.Y. disclosed
to E.Y. that the incident in Thailand was not the first time
E.L.Y. had had inappropriate interactions with her. C.Y. told
her mother that E.L.Y. licked her private parts when the
family lived in "the brick house" and when they had
traveled to Indiana. E.Y. testified that C.Y. referred to
their house in Calhoun County, Alabama, as "the brick
house." (R. 543.) E.Y. then contacted their
missionary team leader, Mark Bosje, and explained the
situation to him.
testified that, after speaking with E.Y., he contacted E.L.Y.
and asked to speak with him about the allegations. Bosje
stated that E.L.Y. came to his house and that E.L.Y.
initially denied everything. However, Bosje testified that
"as the conversation carried on, there was a change in
the direction of the conversation. [E.L.Y.] made statements
such as: Well, I have been sick, and I have been on heavy
medication. A little while later, [E.L.Y.] said, maybe I was
half asleep and thought it was my wife." (R. 582.) Bosje
testified that E.L.Y.'s responses convinced him that E.Y.
and the children needed to be removed from E.L.Y.'s home
and that E.L.Y. was disqualified from serving as a
missionary. Bosje then took the appropriate steps to report
the situation to his superiors, to place E.Y. and her
children in a safe location, and to make arrangements for
E.L.Y. to return to the United States.
testified that E.L.Y. was her father. According to
C.Y., she and her family had previously lived in Alabama,
Indiana, and Thailand. C.Y. testified that she and her family
had been missionaries in Thailand but had returned to the
United States "[b]ecause [E.L.Y.] did something
bad." (R. 613.) When asked what those bad things were,
C.Y. stated that E.L.Y. had touched her private parts
underneath her clothing with "[h]is hand, his tongue,
and his private part." (R. 615.) C.Y. specifically
identified the relevant body parts on an anatomical diagram.
(R. 616.) In describing the events that occurred in Thailand,
including her mother's discovery of the abuse, C.Y.
essentially testified to the same order of events.
went on to testify that the incident of abuse in Thailand was
not the first time E.L.Y. had touched her inappropriately.
C.Y. stated that E.L.Y. had also touched her inappropriately
in Indiana and Alabama. When asked about the location of the
incidents in Alabama, C.Y. testified that they occurred
"in Anniston at the brick house." (R. 620.) C.Y.
described the abuse in Alabama as being similar to the abuse
in Thailand. According to C.Y., E.L.Y. touched her
"front and back" private parts underneath her
clothing with his hand, tongue, and his private part. (R.
621-22.) C.Y. testified that E.L.Y. would then hold her and
walk up and down the hallway praying. According to C.Y., she
was six years old when the abuse occurred in Alabama.
testified in his own defense and admitted to touching and
sodomizing C.Y. in Thailand. E.L.Y. stated:
"And for reasons I can't really tell you, I pulled
[C.Y.'s] skirt down. And eventually while we were
snuggling, not just her skirt but her underwear. And I
touched her with my hands. And just touched her with my
hands. I touched her in the private area with my hands.
"And then eventually for reasons I can't tell you,
it escalated. And I actually -- I did put my mouth on her
(R. 710.) E.L.Y. also testified that he inappropriately
touched C.Y. with his hands when they lived in Alabama.
E.L.Y. stated that he and C.Y. were playing "the tickle
game" and that he began tickling C.Y. on her thigh. He
then stated: "And I tickled her, and I actually tickled
her in her private area. I am ashamed to tell you that. I
wish I could tell you why .... And I wish I could just say I
only tickled her one time .... I don't remember when, but
I did tickle her again more than once." (R. 726-28.)
However, despite these admissions, E.L.Y. maintained that he
did not put his mouth on C.Y.'s genitals when they lived
in Alabama. E.L.Y. stated: "this is the crux of my whole
defense of what I am saying. I did not put my mouth on my
daughter at Bynum Acres Drive. That did not happen. I tickled
her in between her legs. I did do that." (R. 729.)
E.L.Y. testified that his daughter was "not a little
lying girl" but that she was mistaken about where they
lived when he put his mouth on her genitals. (R. 729-30.)
raises numerous issues on appeal. We will address each in
first note that the applicable standard of review regarding
E.L.Y.'s constitutional challenges to § 13A-5-6(d),
Ala. Code 1975, is de novo. In State v. Adams, 91
So.3d 724, 731-32 (Ala.Crim.App.2010), this Court noted:
"'Where, as here, the facts of a case are
essentially undisputed, this Court must determine whether the
trial court misapplied the law to the undisputed facts,
applying a de novo standard of review.' Continental
Nat'l Indem. Co. v. Fields, 926 So.2d 1033, 1035
(Ala. 2005). 'Where the appeal concerns only questions of
law, "there is no presumption of correctness in favor of
the trial court's judgment; this court's review of
legal issues is de novo."' L.B.S. v.
L.M.S., 826 So.2d 178, 185 (Ala. Civ. App. 2002)(quoting
Morgan Bldg. & Spas, Inc. v. Gillett, 762 So.2d
366, 368 (Ala. Civ. App. 2000)). 'In addition,
"[w]hen an appellate court interprets a statute or
considers the constitutionality of a statutory provision, no
presumption of correctness attaches to the trial court's
interpretation of the statute."' Id.
(quoting Monroe v. Valhalla Cemetery Co., 749 So.2d
470, 471-72 (Ala. Civ. App. 1999)). An appellate court's
'review of constitutional challenges to legislative
enactments is de novo.' Richards v. Izzi, 819
So.2d 25, 29 n. 3 (Ala. 2001)."
these principles in mind, we now address E.L.Y.'s
noted, E.L.Y. was sentenced to life imprisonment without the
possibility of parole pursuant to § 13A-5-6(d), Ala.
Code 1975, which provides: "[I]n all cases where an
offender is convicted of a sex offense pursuant to Section
13A-6-61, 13A-6-63, or 13A-6-65.1, when the defendant was 21
years of age or older and the victim was six years of age or
less at the time the offense was committed, the defendant
shall be sentenced to life imprisonment without the
possibility of parole." E.L.Y. argues on appeal, as he
did at trial, that this statute "violates the Eighth
Amendment to the U.S. Constitution as per the Fourteenth
Amendment and Article I Section 15 of the Alabama
Constitution in that it mandates a life without parole
sentence for a first time sex offender." (E.L.Y.'s
brief, at 31.) According to E.L.Y., the resulting sentence
constitutes cruel and unusual punishment as applied to him
and "categorically to all first time sex offenders who
are 21 years of age or older and whose victims are 6 years of
age or less." Id. The basis of E.L.Y.'s
argument is his contention that his sentence is grossly
disproportionate to his crime.
Lane v. State, 66 So.3d 830, 831
(Ala.Crim.App.2010), this Court noted:
"'The Eighth Amendment ... contains a "narrow
proportionality principle" that "applies to
noncapital sentences."' Ewing v.
California, 538 U.S. 11, 17, 123 S.Ct. 1179, 155 L.Ed.2d
108 (2003), quoting Harmelin v. Michigan, 501 U.S.
957, 996-97, 111 S.Ct. 2680, 115 L.Ed.2d 836 (1991). We
recognized this limited principle in Wilson v.
State, 830 So.2d 765 (Ala.Crim.App.2001)."
Wilson v. State, 830 So.2d 765 (Ala.Crim.App.2001),
this Court entertained a challenge to the constitutionality
of a mandatory life-without-parole sentence for a
drug-trafficking conviction. Before undertaking that
analysis, this Court stated:
"At the outset, we acknowledge that determinations
regarding the punishments to be imposed for different crimes
are purely legislative. E.g., Rummel v. Estelle, 445
U.S. 263, 275-76, 282-84, 100 S.Ct. 1133, 63 L.Ed.2d 382
(1980); Rocker v. State, 443 So.2d 1316, 1322
(Ala.Crim.App.1983). We also acknowledge and affirm the
oft-stated rule that we generally will not review sentences
imposed within statutorily prescribed limits. E.g., Evans
v. State, 794 So.2d 415, 439 (Ala.Crim.App.2000). In
Eldridge v. State, 418 So.2d 203, 207
(Ala.Crim.App.1982), we stated:
"'While this court may rule a fine or sentence
excessive, the separation of powers doctrine forces this
court not to substitute its own judgment for that of the
legislature unless those constitutional guarantees of the
Eighth Amendment to the U.S. Constitution or of Article I,
§ 15, 1901, Alabama Constitution are clearly violated.
Cabble v. State, 347 So.2d 546 (Ala. Cr. App.),
cert. denied, 347 So.2d 551 (Ala. 1977).'"
830 So.2d at 771.
appellant in Wilson was a first-time drug offender
who was given a mandatory sentence of life imprisonment
without parole for selling morphine to an undercover police
officer. Like E.L.Y., the appellant in Wilson argued
that the statute, as applied to her case, violated Article I,
§ 15, of the Alabama Constitution, and the Eighth
Amendment to the United States Constitution. This Court
undertook an in-depth analysis of United States Supreme Court
precedent as it related to judicial review of legislative
enactments, specifically Solem v. Helm, 463 U.S. 277
(1983), and Harmelin v. Michigan, 501 U.S.
957 (1991). This Court also analyzed precedent from Alabama
courts as well as various United States Courts of Appeal.
After reviewing the relevant precedents, this Court held that
it was required to "apply a narrow proportionality
review" to Wilson's sentence. 830 So.2d at 778,
citing Harmelin, supra.
explained in Wilson, a proportionality review
requires that the appellate court first make a threshold
determination whether the mandatory sentence of life
imprisonment without parole is "grossly
disproportionate" to the crime. If it is determined that
the sentence is grossly disproportionate to the crime, then
the reviewing court must go further and "conduct a
full-scale proportionality review, examining the second and
third Solem factors." Id. at 780,
citing Harmelin, 111 S.Ct. at 2707. Those additional
"Solem factors" require the court to
examine the punishment imposed on other offenders in the same
jurisdiction and the punishment the offender would have
received had the crime been committed in another
jurisdiction. The Wilson court concluded that the
mandatory life-imprisonment-without-parole sentence was
grossly disproportionate to the specific acts that
constituted Wilson's crime. The Court then went on to
find that Wilson's sentence was more extreme than
sentences imposed on similar offenders in Alabama and that
Wilson would have received a "much more lenient sentence
in many other jurisdictions." Id. at 780.
Accordingly, this Court held that, after a careful analysis
of the above-mentioned factors, it was convinced that
"the statute mandating imposition of a life without
parole sentence is unconstitutional, as it is applied to
this defendant for the commission of this
crime." Id. at 781. We find E.L.Y.'s case
to be distinguishable.
order to analyze the constitutionality of E.L.Y.'s
sentence, this Court must first make a threshold
determination whether E.L.Y.'s sentence is grossly
disproportionate to his crime. In Wilson, this Court
"Application of Harmelin mandates that we make
a threshold determination in this case by considering whether
the mandatory sentence of life imprisonment without parole
imposed in Wilson's case is grossly disproportionate to
her crime. To perform this analysis, we must consider the
gravity of the offense and the harshness of the punishment.
Solem, 463 U.S. at 290-91, 103 S.Ct. 3001. The
United States Supreme Court noted in Solem that no
single factor determines when a sentence is grossly
disproportionate, and it offered a nonexhaustive list of
factors to be considered when a court is assessing the
severity of a crime. These factors include consideration of
the circumstances of the crime, the harm caused to the victim
or to society, the culpability of the offender, and the
offender's motive in committing the crime. Id.
at 290-94, 103 S.Ct. 3001."
830 So.2d at 778.
to the factors set out in Solem, we find that the
circumstances of the crime here are extremely grave. As
noted, E.L.Y. was convicted of engaging in deviate sexual
conduct with his daughter when she was six years of age and
younger. E.L.Y. even admitted to some of the incidents but
denied that they occurred in Alabama. Such acts have been
determined to be among the most serious and grave offenses
that can be committed in the State of Alabama. This is
evidenced by the legislature's decision to classify
first-degree sodomy as a Class A felony, see §
13A-6-63(b), Ala. Code 1975, the same classification given to
crimes such as murder, rape, and first-degree robbery. The
circumstances of E.L.Y.'s offense are even more grievous
in that the crime was perpetrated against his young daughter
in their home.
Court also finds that the harm caused to C.Y. was especially
severe for several reasons. First, the crimes were committed
by her father, a person C.Y. should have been able to look to
for support and protection. The crimes were also committed on
more than one occasion and in multiple locations. Based on
C.Y.'s age at the time the offenses were committed, it is
likely that she has no memory of a home in which she was not
sexually abused. E.L.Y. claims in his brief that "it is
questionable what, if any, long term effects will be
to the child victim." (E.L.Y.'s brief, at 37
(emphasis added.)) We find this assertion wholly absurd.
E.L.Y. states in his brief that the sexual abuse he
experienced as a child was a factor in his eventual decision
to abuse his child. To then argue that his abuse of C.Y. may
not have long-term effects on her is disingenuous at best.
also attempts to diminish his culpability for the offense by
asserting that he has no criminal history, that his conduct
was not violent, and that he was sexually abused as a child.
(E.L.Y.'s brief, at 32-33.) E.L.Y. cites cases such as
Graham v. Florida, 560 U.S. 48 (2011), Roper v.
Simmons, 543 U.S. 551 (2005), and Atkins v.
Virginia, 536 U.S. 304 (2002), in support of his
contention that he is less culpable and less deserving of
severe punishment. However, those cases are inapposite.
Graham and Roper involved issues regarding
the culpability of juveniles, and Atkins dealt with
issues surrounding the culpability of intellectually disabled
defendants. E.L.Y. was an adult when he committed the charged
crimes, and he was not intellectually disabled. In fact,
E.L.Y. testified that he was the valedictorian of his
high-school class, that he graduated near the top of his
class in college, and that he ...