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E.L.Y. v. State

Alabama Court of Criminal Appeals

February 9, 2018

State of Alabama

         Appeal from Calhoun Circuit Court (CC-14-1455 and CC-14-1456)

          BURKE, JUDGE.

         E.L.Y. 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.

         The 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.

         E.Y. 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."[1] (R. 543.) E.Y. then contacted their missionary team leader, Mark Bosje, and explained the situation to him.

         Bosje 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.

         C.Y. testified[2] 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.

         C.Y. 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.

         E.L.Y. 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 private area."

(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.[3] 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.)

         E.L.Y. raises numerous issues on appeal. We will address each in turn.

         Constitutional Issues

         We 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)."

         With these principles in mind, we now address E.L.Y.'s constitutional arguments.


         As 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.

         In 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)."

         In 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.

         The 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.

         As 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.

         In 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 held:

"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.

         Turning 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.

         This 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.

         E.L.Y. 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 ...

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