T.J.F. v. State of Alabama (Appeal from Morgan Circuit Court: CC-20-37)

• Court: Court of Criminal Appeals of Alabama
• Decided: September 27, 2024
• Docket: CR-2023-0886
• Status: Published

Opinion

Rel: September 27, 2024

Notice: This opinion is subject to formal revision before publication in the advance sheets of Southern Reporter. Readers are requested to notify the Reporter of Decisions, Alabama Appellate Courts, 300 Dexter Avenue, Montgomery, Alabama 36104-3741 ((334) 229-0650), of any typographical or other errors, in order that corrections may be made before the opinion is published in Southern Reporter.

Alabama Court of Criminal Appeals OCTOBER TERM, 2023-2024 _________________________

CR-2023-0886 _________________________

T.J.F.

v.

State of Alabama

Appeal from Morgan Circuit Court (CC-20-37)

McCOOL, Judge.

T.J.F. appeals his conviction for sexual abuse of a child less than 12

years old. See § 13A-6-69.1, Ala. Code 1975. For the reasons set forth

herein, we affirm T.J.F.'s conviction, but we remand the case for a new

sentencing hearing. CR-2023-0886

Facts and Procedural History

In October 2019, a Morgan County grand jury indicted T.J.F. for

one count of sexual abuse of a child less than 12 years old. The alleged

victim was T.J.F.'s stepdaughter, T.E., who testified against him at trial.

T.E., who was 17 years old at the time of trial, was born in Indiana and

moved to Alabama in May 2016 with her mother, her siblings, and T.J.F.

According to T.E., she "had just turned 10 years old" at that time. (R.

51.) T.E. testified that, "[a]round April of 2018" (R. 53), when she was

"close to 12 years old" (R. 54), she was watching television with T.J.F.

when he "started touching [her] in inappropriate ways." (R. 55.)

Specifically, T.E. testified that T.J.F. "started touching [her] on [her]

vagina" (id.) and that he "[e]ventually started making [her] touch him

and then he moved it to [her] room." (R. 56.) Once they were in T.E.'s

bedroom, T.J.F. "decided he was going to try to have intercourse with

[her]" and instructed her to remove her clothes, which she did "because

[she] did not want to get hurt." (Id.) T.J.F. "was not able to make

penetration" because T.E. "was not aroused," but he "ejaculated on [her]

stomach" and then left the room. (R. 57.) A few weeks later, T.E. told

her mother about the incident. T.E. admitted at trial that she had later

2 CR-2023-0886

recanted the allegation, telling her mother that the incident did not

happen and also telling her therapist "many times" that it did not

happen. (R. 65.) When asked on cross-examination to reconcile her

recantations with her testimony at trial, T.E. testified that her mother

and her therapist had "made [her] believe that it didn't happen." (R. 67.)

Carissa Sullivan, a case worker with the Morgan County

Department of Human Resources ("DHR"), testified that DHR was made

aware of the allegation against T.J.F. in June 2018. On cross-

examination, defense counsel attempted to elicit Sullivan's testimony

that, following an investigation by DHR, T.J.F. "was found not indicated"

(R. 74), meaning that DHR did not find him to be "guilty" of the

allegation. (R. 76.) When Sullivan testified that she was "not sure" (R.

74) whether T.J.F. had been "indicated," defense counsel attempted to

have her review some notes from the DHR file ("the DHR records").

However, the State objected to any testimony regarding the DHR records

and to the admission of the records themselves, and the trial court

sustained the State's objection.

The jury found T.J.F. guilty of sexual abuse of a child less than 12

years old. On October 3, 2023, the trial court held the sentencing hearing

3 CR-2023-0886

and sentenced T.J.F. to 18 years' imprisonment; the court split the

sentence, ordering T.J.F. to serve 4 years' imprisonment to be followed

by 36 months of probation. Five days later, the trial court issued a

written sentencing order, which states that T.J.F. was sentenced to a

"straight" sentence of 14 years' imprisonment. (C. 52-53.) Following the

denial of his motion for a new trial, T.J.F. filed a timely notice of appeal.

Discussion

T.J.F. raises three claims on appeal that, he says, entitle him to

relief from his conviction, and he also argues that the case must be

remanded for the trial court to clarify what sentence it intended to

impose. We address those four claims in turn.

I.

T.J.F. argues that the trial court erred by denying his motion for a

judgment of acquittal because, he says, the State's evidence was not

sufficient to sustain his conviction.

" ' "In determining the sufficiency of the evidence to sustain a conviction, a reviewing court must accept as true all evidence introduced by the State, accord the State all legitimate inferences therefrom, and consider all evidence in a light most favorable to the prosecution." ' Ballenger v. State, 720 So. 2d 1033, 1034 (Ala. Crim. App. 1998) (quoting Faircloth v. State, 471 So. 2d 485, 488 (Ala. Crim. App. 1984), aff'd, 471 So. 2d 493 (Ala. 1985)). ' "The test used in

4 CR-2023-0886

determining the sufficiency of evidence to sustain a conviction is whether, viewing the evidence in the light most favorable to the prosecution, a rational finder of fact could have found the defendant guilty beyond a reasonable doubt." ' Nunn v. State, 697 So. 2d 497, 498 (Ala. Crim. App. 1997) (quoting O'Neal v. State, 602 So. 2d 462, 464 (Ala. Crim. App. 1992)). ' "When there is legal evidence from which the jury could, by fair inference, find the defendant guilty, the trial court should submit [the case] to the jury, and, in such a case, this court will not disturb the trial court's decision." ' Farrior v. State, 728 So. 2d 691, 696 (Ala. Crim. App. 1998) (quoting Ward v. State, 557 So. 2d 848, 850 (Ala. Crim. App. 1990)). 'The role of appellate courts is not to say what the facts are. Our role ... is to judge whether the evidence is legally sufficient to allow submission of an issue for decision [by] the jury.' Ex parte Bankston, 358 So. 2d 1040, 1042 (Ala. 1978)."

McGlocklin v. State, 910 So. 2d 154, 156 (Ala. Crim. App. 2005).

"A person commits the crime of sexual abuse of a child less than 12

years old if he or she, being 16 years old or older, subjects another person

who is less than 12 years old to sexual contact." § 13A-6-69.1(a).

T.J.F. challenges the sufficiency of the evidence by arguing that the

State failed to prove that T.E. was less than 12 years old at the time of

the offense. In support of that claim, T.J.F. contends that the only

evidence regarding T.E.'s age is her testimony that she was "close to 12

years old" at the time of the offense, and he argues that " 'close to' could

mean shortly before or shortly after T.E.'s twelfth birthday." (T.J.F.'s

brief, p. 24.) Thus, according to T.J.F., the evidence regarding T.E.'s age

5 CR-2023-0886

is "nebulous and ambiguous" and "does not exclude [the] inference" that

T.E. "was actually 12 years old" at the time of the offense. (Id., pp. 24,

31.)

It is true that no evidence unequivocally establishes T.E.'s age at

the time of the offense, but the State was not required to present evidence

that left no doubt as to her age; rather, it was required to present

evidence that proved her age beyond a reasonable doubt. That said, T.E.

testified that she "had just turned 10 years old" when her family moved

to Alabama in May 2016, and she testified that the offense occurred in

April 2018 when she was "close to 12 years old." From that evidence, the

jury could have concluded beyond a reasonable doubt that, at the time of

the offense, T.E. was nearing, but had not yet reached, 12 years of age.

Indeed, "[j]urors are not required to check their common sense at the

courthouse door," Black v. State, 295 So. 3d 1120, 1136 (Ala. Crim. App.

2019), and, relying on their common sense, the jurors likely recognized

that a person generally does not state that she is "close" to an age she has

already reached but, instead, will state that she "is" that age, even if she

has only recently reached that age. Thus, construing the evidence in a

light most favorable to the State, we find no error in the trial court's

6 CR-2023-0886

denial of T.J.F.'s motion for a judgment of acquittal. T.J.F.'s reliance on

Washington v. State, 645 So. 2d 915, 919 (Miss. 1994), is misplaced

because, in that case, "[t]he only evidence which the jury saw or heard

concerning the age of the victim was their actual sight of the victim while

she testified," which is not the case here.

II.

T.J.F. argues that the trial court erred by denying his motion for a

new trial because, he says, the jury's verdict was against the great weight

of the evidence. In support of that claim, T.J.F. continues to argue that,

given the State's evidence, "[i]t is at least as likely that T.E. was 12 [years

old] as it is that she was under 12 [years old]" at the time of the offense.

(T.J.F.'s brief, p. 51.) However, we have already explained that the jury

could have concluded beyond a reasonable doubt that T.E. was less than

12 years old at the time of the offense; moreover, arguing that the

evidence equally supports two different conclusions does not establish

that the evidence weighs more heavily in favor of one conclusion. Thus,

this argument is unpersuasive.

T.J.F. also argues that "T.E.'s credibility, to put it kindly, is highly

suspect in light of her behavioral issues, her inconsistent stories, her

7 CR-2023-0886

multiple recantations, and the fact that her own therapist believed she

had made the incident up in her head." (T.J.F.'s brief, p. 52.) However,

it is well settled that "[a]ny inconsistencies or conflicts in the evidence

and the credibility of the [witnesses] were questions for the jury, not for

this Court" or the trial court. Jones v. State, 853 So. 2d 1036, 1038 (Ala.

Crim. App. 2002) (overruled on other grounds by Lightfoot v. State, 152

So. 3d 445 (Ala. 2013)). Thus, this argument also does not entitle T.J.F.

to relief.

III.

T.J.F. argues that the trial court erred by sustaining the State's

objection to the admission of the DHR records. T.J.F.'s primary

argument is not that the DHR records were admissible; instead, he

argues that the trial court erred by sustaining the State's objection

"without first inspecting [the DHR records] in camera to determine

whether they contained any exculpatory or impeachment materials."

(T.J.F.'s brief, p. 52.) However, T.J.F. did not ask the trial court to inspect

the DHR records before ruling on the State's objection, and he never

argued below that the court should have sua sponte inspected them

before ruling on their admissibility. It is well settled that "[r]eview on

8 CR-2023-0886

appeal is restricted to questions and issues properly and timely raised at

trial." Ex parte Coulliette, 857 So. 2d 793, 794 (Ala. 2003) (citation

omitted). Thus, T.J.F. is not entitled to relief on this claim.

T.J.F. concedes that he did not raise this claim below (T.J.F.'s reply

brief, p. 19), but, citing D.P. v. State, 850 So. 2d 370 (Ala. Crim. App.

2002), he argues that he was not required to do so. In D.P., the defendant

filed a motion to compel the production of the victim's mental-health

records, and, without reviewing the records to determine if they

contained any exculpatory or impeachment evidence, the trial court

denied the motion. On appeal from the defendant's conviction, this Court

remanded the case for further proceedings, holding that the trial court

was required to "inspect the records before ruling on the [defendant's]

motion." Id. at 374. However, this case does not involve a motion to

compel the production of records but, instead, involves the admissibility

of records that the defendant had in his possession, and nothing in D.P.

indicates that a trial court is required to conduct an in camera inspection

of records before ruling on their admissibility at trial. Furthermore, to

the extent D.P. might be applicable, it does not hold that a trial court's in

camera inspection of records is an issue that does not have to be

9 CR-2023-0886

preserved at trial; in fact, it is ambiguous as to whether the defendant in

that case requested an in camera inspection. Thus, we are not persuaded

by T.J.F.'s argument that he was not required to preserve this claim for

appellate review.

To the extent T.J.F. argues that the trial court erred by refusing to

admit the DHR records into evidence, he contends that the records

contained statements by T.E. that were admissible under § 15-25-31, Ala.

Code 1975, which provides that an out-of-court statement by a child

under 12 years of age is admissible in certain circumstances. However,

T.J.F. did not raise that argument when proffering the DHR records for

admission; instead, he argued that the records were admissible under the

business-records exception to the rule against hearsay. (R. 74-78.) See

Rule 803(6), Ala. R. Evid. Thus, we will not consider this claim. Ex parte

Coulliette, supra.

IV.

T.J.F. argues that this case must be remanded for the trial court to

clarify what sentence it intended to impose because there is a discrepancy

between the sentence that the court pronounced at the sentencing

hearing and the sentence reflected in the court's written sentencing

10 CR-2023-0886

order. As noted, at the sentencing hearing the trial court pronounced a

sentence of 18 years' imprisonment and split the sentence, ordering

T.J.F. to serve 4 years' imprisonment to be followed by 36 months of

probation. However, in its written sentencing order, the trial court stated

that T.J.F. was sentenced to a "straight" sentence of 14 years'

imprisonment. The State agrees with T.J.F., arguing that remand is

required "for the limited purpose of resolving the discrepancy between

the court's oral pronouncement of sentence … and the written sentencing

order." (State's brief, p. 26.) We agree that remand is required, but we

do not agree that the trial court must simply clarify what sentence it

intended to impose. Rather, under the specific facts of this case, the trial

court is required to hold a new sentencing hearing.

"[T]o enter a judgment of conviction, the trial court must pronounce

in open court both an adjudication of guilt and a sentence." Benn v. State,

211 So. 3d 857, 858 (Ala. Crim. App. 2016). "[N]othing less than a

pronouncement in open court of the defendant's sentence will satisfy the

sentencing element of a judgment of conviction." Id. at 859. In this case,

the trial court satisfied the requirement of pronouncing T.J.F.'s sentence

in open court, but the execution of the sentence that the court pronounced

11 CR-2023-0886

is illegal because a trial court may not split a sentence that was imposed

for a sex offense involving a child. Holley v. State, 212 So. 3d 967, 969

(Ala. Crim. App. 2014). It appears that the trial court might have

subsequently recognized that it could not split T.J.F.'s sentence because

the court's written sentencing order reflects a "straight" sentence, but

that sentence was not pronounced in open court.

In short, then, no legal sentence has been pronounced in open court

in this case. We therefore remand the case to the trial court with

instructions for that court to hold a new sentencing hearing at which it

pronounces a legal sentence for T.J.F.'s conviction. We reiterate that

T.J.F.'s sentence may not be split, and we also note that, pursuant to §

13A-5-6(a)(6), the sentence may not be less than 10 years' imprisonment.

The trial court shall take all necessary steps to ensure that due return is

made to this Court within 28 days of the date of this opinion, and the

return to remand shall include the transcript of the sentencing hearing

and the new sentencing order.

AFFIRMED AS TO CONVICTION; REVERSED AS TO

SENTENCE; AND REMANDED WITH INSTRUCTIONS.

Windom, P.J., and Kellum, Cole, and Minor, JJ., concur.