Page 1121
Appeal
from Madison Circuit Court (CC-17-1436).
William
K. Bradford of Bradford Ladner, LLP, Birmingham, for
appellant.
Steve
Marshall, atty. gen., and Tracy M. Daniel, asst. atty. gen.,
for appellee.
McCOOL,
Judge.
Adrian
Lee Black appeals his conviction for first-degree rape, a
violation of § 13A-6-61, Ala. Code 1975; his conviction
for first-degree sodomy, a violation of § 13A-6-63, Ala.
Code 1975; and his two convictions for first-degree sexual
abuse, a violation of § 13A-6-66, Ala. Code 1975. The
trial court sentenced Black to 20 years' imprisonment for
the rape conviction, 20 years' imprisonment for the
sodomy conviction, and 5 years' imprisonment for each of
the sexual-abuse convictions, the sentences to run
concurrently.
Page 1122
Facts and Procedural History
The
evidence at trial established the following facts. In 2008,
Black moved into the house where D.K. lived with his wife,
L.K., and their daughters, M.E.K. and M.K.; at that time,
Black was in his "late 30s" (R. 189), and M.E.K.
and M.K. were 12 and 10 years of age,
respectively.[1] The testimony was inconsistent as to
how and why Black came to live with D.K. and his family, but
it appears that L.K. met Black "[t]hrough the
internet" (R. 394) and subsequently arranged for him to
move into the family's house to "help her run"
the grocery store she owned (R. 188) and to serve as "a
handyman around the house." (R. 246.) D.K. testified
that "everyone seemed to get along with [Black]"
(R. 189) and "trusted him and treated him as one of the
family." (R. 190). In fact, D.K. testified that he
"grew to love [Black] like a brother" (R. 189) and
that Black was eventually entrusted with some responsibility
for supervising M.E.K. and M.K., including "dropp[ing]
the girls off at school, pick[ing] them up, things like
that." (R. 190.) D.K. also testified that, on multiple
occasions, Black traveled on overnight trips with L.K.,
M.E.K., and M.K., and evidence established that, on one
occasion, D.K. and L.K. allowed Black to take M.K. and M.E.K.
to Perdido Key for spring break. In short, D.K. responded
affirmatively when asked if Black was "like another
parental figure" for M.E.K. and M.K. (R. 190.)
M.K.
testified that, when Black first moved into her family's
house, she "avoided him because he was a stranger"
but that she "had to call [Black] Uncle ... [b]ecause
[L.K.] said so." (R. 242.) However, M.K. testified that,
after Black had been living in the family's house
approximately one year, "everyone else trusted him, so
[she] didn't see a reason to avoid him and be afraid of
him." (R. 243.) In fact, it was undisputed that, at some
point after Black moved into the family's house, M.E.K.
and M.K. began sleeping in Black's bedroom because, D.K.
testified, "they didn't like sleeping alone."
(R. 194.) M.K. testified that she began spending
"one-on-one" time with Black at that point because
her family "pretty much ignored her ..., and [she] was
just kind of a clingy youngest child." (R. 244.)
According to M.K., she and Black "would pretty much do
anything, like go out to eat, sleep in the same bed together,
watch movies, like anything that a couple would do." (R.
243-44.) In fact, M.K. testified that Black "referred to
[her] as his wife on occasion" and that he was
"excited for [her] to turn 18" so that he and she
"could go across state lines and maybe get married some
day." (R. 252.) However, despite Black's perception
of his relationship with M.K., M.K. testified that she
considered Black to be an authority figure (R. 246), that
L.K. had instructed her to obey Black (R. 247), that she
"obeyed [Black] more than [she] obeyed [L.K.]" (R.
320), and that L.K. would "very angrily" instruct
her to apologize to Black "every time [M.K.] would make
him upset." (R. 247.) M.E.K. also testified that Black
"was someone that was deemed like an authority
figure" in the family's house. (R. 352.)
When
M.K. was 17 years of age, she reported to a social worker at
her high school that Black had repeatedly sexually assaulted
her from the time she was 11 years of age. Regarding the
circumstances under which those sexual assaults occurred,
M.K. testified:
"Q. Let's start at the beginning. What's the
first thing that [Black] did that you felt, at least
looking back on, was abusive, the very first thing?
Page 1123
"A. Well, he would — we were laying on his bed,
and I was not wearing a bra. I believe I was either 11 or
12. He just reaches over and, like, squeezes my breast for
some reason.
"....
"Q. After that time when he grabbed your breast in his
bed, what was the next thing that happened that you
remember?
"A. He got really upset about something. We were home
alone. He kept threatening to leave. I was terrified
because I didn't want to get in trouble because, I
guess, I did something to make him upset. So then he was
like, `Tell me you love me.' I was like, `I love
you.' He was like, `Give me a kiss,' so I kissed
him on the cheek. He wasn't satisfied, so he grabbed my
head and planted a kiss on my lips, and I started sobbing
really hard. That made him stay, but he was irritated that
I wasn't happy with it.
"Q. How old were you when that happened?
"A. Twelve.
"....
"Q. Going back to that time that he grabbed your
breast on the bed, ... [h]ow did that make you feel when he
grabbed you?
"A. Disgusted.
"Q. What did you do afterwards?
"A. I felt like I could control it in the future if
maybe I told him we couldn't hug anymore from the
front.
"Q. Did you make a decision not to hug him from the
front anymore then?
"A. Yes, but then it just gradually ended up happening
anyway.
"Q. After that time ... that he kissed you against
your will, what was the next thing that happened?
"A. We would just be laying in bed together, and he
used to hold me from behind because I was, for some reason,
terrified of the dark and being alone, so I liked the
security. At first it was fine, but then he made it only an
opportunity to rub his penis against my behind with his
clothes on.
"Q. When you say he held you from behind, were you
—
"A. It was like spooning.
"....
"Q. Did this happen one time or more than one time?
"A. More than once.
"Q. How old were you the first time it happened?
"A. Thirteen.
"Q. How old were you the last time it happened?
"A. Seventeen.
"....
"Q. What was the next thing that you remember after
[Black] pressing up against you in the bed?
"A. He would make me touch his genitals over his
clothes. Then, after that, he would be like, `Put your hand
inside,' and I really didn't want to, and I just
kept saying that. He was like, `Do it for me.'
"....
"Q. Was that one time or more than one time?
"A. More than one time.
"Q. How old were you the first time it happened?
"A. Fourteen.
"Q. How old were you the last time that he made you
touch his genitals over his clothes?
"A. I guess 16.
Page 1124
"Q. When [you] said he made you touch him, what part
of your body did he make you touch him with?
"A. My hands.
"Q. You said that eventually he told you to touch him
under his clothes?
"A. Yes.
"Q. Do you remember the first time that happened?
"A. I believe I was 14.
"Q. It was your hand?
"A. Yes.
"....
"Q. What was happening before he made you touch him?
"A. We were just laying there.
"Q. Did he say anything to you?
"A. I don't remember.
"Q. Did you say anything to him?
"A. No.
"....
"Q. How did it come about that your hand was on his
genitals? Did he place your hand there or tell you where to
put your hand?
"A. He placed my hand there.
"....
"Q. About how long did your hands stay on his
genitals?
"A. Until it was okay for me ... not to do it, like,
he wouldn't get mad at me if I stopped.
"Q. How would you know that he wouldn't get mad at
you if you stopped?
"....
"A. I would usually just try [to] get away by saying,
`I have to go to the bathroom,' and that would make him
upset, but at least it would make it stop for a minute.
"Q. Do you remember how many times he made you touch
his genitals under his clothes?
"A. No. It was quite a bit.
"....
"Q. I want you to think of a time that ... he made you
touch him under his clothes. Tell me how old you were.
"A. I believe I was either 14 or 15. Me and him would
go to church in the morning at 8:00 a.m., so the rest of
the family would go either in the afternoon or evening, so
he would take that time when they went in the afternoon. We
would go to his bedroom, and we would — he would
pull my pants down and put me over the edge of the bed and
take his pants down as well and just, like, use my legs
that were pressed together and put his large penis, like
— basically like scrape it underneath my vagina....
"....
"Q. ... After the first time that he made you touch
his genitals, what was the next thing that happened between
you that made you uncomfortable?
"A. When I was 15, before he would drop me off at
school, he would penetrate me with his fingers in his bed.
"....
"Q. Was this one time or more than one time?
"A. More than one time.
"....
"Q. Where did he put his finger?
"A. In my vagina.
"Q. What was happening before he did that to you?
"A. We were just lying down; we were laying down in
bed.
"....
"Q. Did he say anything when it happened or while he
was doing it?
"A. No.
"Q. Did you say anything?
"A. No.
"....
Page 1125
"Q. What did you do — how did it stop? What
caused it to end where he would stop touching you on that
occasion?
"A. I guess just getting bored.
"....
"Q. Tell me about the next thing that happened that
made you uncomfortable.
"A. Well, practically from there it was mostly me
being bent over, like, the edge of the bed.
"....
"Q. How did you get bent over the bed? Did he bend you
over or did you bend over?
"A. He bent me over.
"Q. What would happen after he bent you over the bed?
"A. He would pull my pants down and then his pants
down, and then just rub against the outside of my vagina.
"Q. I'm sorry to do this, but what part of his
body rubbed outside of your vagina?
"A. His penis.
"Q. Do you remember the first time that happened?
"A. Yes.
"Q. How old were you?
"A. Fifteen.
"....
"Q. What was happening before he bent you over the
bed?
"A. I don't remember.
"Q. Did he say anything when that happened?
"A. He asked me how it felt, and I said `warm.'
"Q. Did he say anything else?
"A. No.
"Q. Did you say anything else?
"A. No.
"....
"Q. What caused it to stop?
"A. I guess he just wanted to stop. I don't
remember him ever ejaculating.
"....
"Q. Did he put his mouth on any other — and
I'm sorry. You described him forcefully kissing you on
the lips in the past?
"A. Yes.
"Q. Did he put his mouth anywhere else on your body
that made you uncomfortable?
"A. Yes. One time he was already confingering [sic]
me. He put his mouth down there and kissed me. Then he
looked up and asked, `Do you like that?' and I said,
`No.'
"Q. How old were you when that happened?
"A. Fourteen or 15.
"....
"Q. When you say `down there,' can you explain
what you mean?
"A. Like on the outside of my vagina.
"Q. Was that the only time he ever put his mouth in
your genital area?
"A. Yes.
"....
"Q. You described him touching you with his penis,
right?
"A. Yes.
"Q. Was there just one place on your body that he
touched with his penis or more than one place?
"A. Just my hands and my genital area.
"....
"Q. I want you to think of a time that that happened
that you remember clearly. How old were you then?
"A. Fifteen.
Page 1126
"Q. Where were you when it happened?
"....
"A. On the side of the bed.
"Q. How were you positioned on the bed?
"A. I was bent over.
"Q. Where was he?
"A. He was behind me.
"....
"Q. What was happening before this started?
"A. Nothing, really.
"Q. You said that he bent you over the bed, I believe?
"A. Yes. The only reason why this particular incident
stands out is because since he was rubbing against the
outside of my vagina and not the inside, it was dry, so he
ripped the foreskin and he started bleeding on the carpet.
He ran to the bathroom and quickly came out and frantically
tried to blot it out of the carpet.
"....
"Q. I want to go back to ... the times that you said
he put his fingers in your vagina. Do you ever remember him
saying anything to you during any of those incidents when
he put his fingers into you?
"A. Well, sometimes he would ask if it was okay. I was
like `Yeah, yeah,' because I didn't want him to get
mad at me.
"Q. When he would — I want to talk a little bit
more about when he put his mouth on your private area. Can
you tell me — you said you were about 14 or 15 years
old; is that right?
"A. Yes.
"Q. Tell me what was happening before he put his mouth
on you.
"A. Just the usual of him touching me in some way. I
can't recall exactly what was happening.
"....
"Q. What part of his body specifically touched you?
"A. His mouth.
"Q. Was it the outside of his mouth, his lips, or was
any part of the inside of his mouth touching you?
"A. Just his lips.
"Q. What part of your body did his lips touch?
"A. The outside of my vagina.
"Q. You mentioned that he had you touch his penis,
right?
"A. Yes.
"....
"Q. You may have already said this... but how did your
hand get on his private parts? Did he put it there or did
you put it there?
"A. Like over his clothes, he put my hand there.
"Q. When it was under his clothes?
"A. I put it there because he asked me to.
"Q. How long was your hand on his private part?
"A. I don't know.
"Q. What was your hand doing when it was on his penis?
"A. Stroking.
"Q. Did he ask you to do that?
"A. Yes.
"Q. I want to go back to the time that you said that
he put his penis on or near or around your vaginal area.
"....
"Q. What was happening before he bent you over the
bed?
"A. I don't remember.
"....
Page 1127
"Q. Did he say anything to you before, during or after
it happened?
"A. Usually just if I made it end by saying that I had
to go to the bathroom, he would just be upset about that.
"Q. Did you say anything to him besides saying you
needed to go to the bathroom?
"A. No."
(R. 256-88.) M.K. further testified:
"Q. You testified that sometimes you would just do
what he wanted so that he wouldn't get upset; is that
right?
"A. Yes.
"Q. What were you afraid ... would happen if you upset
him?
"A. He would get very angry and take all of his things
and just leave.
"Q. What made you continue to get into his bed even
after he started abusing you?
"A. If I even said that I wanted to go back to my bed
in my bedroom, it would make him upset.
"....
"Q. I want to go back and clarify a little bit.
I'm sorry to ask you to keep talking about this, but
the incident when you said the defendant put his penis on
or against your vagina, can you describe the way his penis
was positioned in relation to your genitals area?
"A. So my legs were together, and he practically just
put his penis in between my thighs right up against my
vagina and would just go back and forth....
"Q. So ... is his penis ... coming at you vertically
or horizontally?
"A. Horizontally."
(R. 339-41.) On cross-examination, M.K. testified that, after
reporting the sexual assaults, she had stated during a
forensic interview that Black's penis "`was under
[her] vagina, not in the vagina'" (R. 346) and
"`would never go inside.'" (R. 314.) M.K.
further testified on cross-examination:
"Q. You have testified today, just a little while ago,
that you were terrified of [Black]?
"A. In the beginning I wasn't.
"Q. But you were terrified later?
"A. Yes.
"Q. You became really afraid of him?
"A. Yes."
(R. 311.) On redirect examination, M.K. reiterated that she
began to fear Black after he began sexually assaulting her:
"Q. You testified that in the beginning you felt safe
around the defendant; is that correct?
"A. Yes.
"....
"Q. But did those feelings change after he started to
abuse you?
"A. Yes.
"Q. After he started abusing you, did you feel unsafe?
"A. Yes."