Rel: June 27, 2025
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, 2024-2025 _________________________
CR-2023-0302 _________________________
Z.J.H.
v.
State of Alabama
Appeal from Jefferson Circuit Court, Bessemer Division (CC-19-1306 and CC-19-1220)
On Return to Second Remand
MINOR, Judge.
Z.J.H. appeals his convictions for first-degree sodomy, see § 13A-6-
63(a)(3), Ala. Code 1975, and sexual abuse of a child under the age 12
years old, see § 13A-6-69.1, Ala. Code 1975. 1 On appeal, Z.J.H. argues (1)
1On original submission, this Court noticed (1) that there was a
discrepancy between the sentence pronounced at the sentencing hearing CR-2023-0302
that the Jefferson Circuit Court, Bessemer Division, erred by excluding
evidence of H.H.'s alleged prior sexual abuse, (2) that the circuit court
erred by limiting certain expert testimony, (3) that the circuit court erred
by allowing a certified facility dog in the courtroom, (4) that the circuit
court erred by allowing the State to impeach K.H., and (5) that "the jury's
verdicts were not supported by the great weight of the evidence." For the
reasons set forth below, we affirm Z.J.H.'s convictions. But we remand
the case for the circuit court to sentence Z.J.H. to not less than 10 years'
postrelease supervision under § 13A-5-6(c), Ala. Code 1975, for his
for Z.J.H.'s conviction for first-degree sodomy and the sentencing order for that conviction and (2) that the record did not include a written sentencing order for the sexual-abuse conviction. Thus, in September 2024 this Court remanded this cause to the circuit court, by order, with instructions for that court to supplement the record with (1) a corrected sentencing order for the sodomy conviction and (2) a sentencing order for the sexual-abuse conviction. See Rule 10(g), Ala. R. App. P.
On return to remand, although the circuit court submitted a corrected sentencing order for the sodomy conviction, the circuit court did not supplement the record with a sentencing order for the sexual-abuse conviction. This Court, on October 16, 2024, thus remanded this cause to the circuit court, by order, for a second time for that court to supplement the record with a sentencing order for the sexual-abuse conviction. On remand, the circuit court complied with our instructions. (Record on Return to Second Remand, C. 5-6.) The circuit court sentenced Z.J.H. to 20 years' imprisonment on the sodomy conviction and to 10 years' imprisonment on the sexual-abuse conviction. 2 CR-2023-0302
conviction for first-degree sodomy.
FACTS AND PROCEDURAL HISTORY
In November 2018, H.H., who was 10 years old and a fifth grader
at McAdory Elementary, disclosed to her school counselor that her
adoptive brother, 17-year-old Z.J.H., had sexually abused her since she
was in the second grade until about one month before her disclosure.
H.H., who was 14 years old at the time of the trial, testified that on
many occasions Z.J.H. had sexually abused H.H. at their home on Powder
Plant Road in McCalla. H.H. initially told her friends, who, in turn,
alerted the school counselor about the allegations that Z.J.H., along with
"French kiss[ing]" H.H., would "suck [H.H.'s] feet," "make [H.H.] rub
[Z.J.H.'s] private area," and "put it in [H.H.'s] mouth." (R. 884.) H.H. also
had stated that "[Z.J.H.] would make [H.H.] watch [porn videos]." 2 (R.
2When Nashira Palmer, who is employed with the Jefferson County
Department of Human Resources, interviewed H.H. at the school following her disclosures to the school counselor, H.H. stated that "[Z.J.H.] would do things to [H.H.] after they watched […] porn on [Z.J.H.'s] phone." (R. 627.) That same day, Palmer interviewed Z.J.H., who denied the allegations but admitted that "[H.H.] may have walked in on him a time before while he was […] masturbating." (R. 634.) Z.J.H. also admitted to Palmer that he had received counseling for "an issue with porn." (R. 634-35.)
3 CR-2023-0302
885.)
H.H. later told Ammy Swaby, the forensic interviewer at the Clay
House, that "[Z.J.H.] would make [H.H.] rub [Z.J.H.'s] private area until
it leaked and [Z.J.H.] would kiss [H.H.] and suck on [her] feet and [Z.J.H.]
would make [H.H.] sit on [Z.J.H.'s] face." (R. 890-91.) H.H. stated that,
when Z.J.H. made H.H. sit on Z.J.H.'s face, H.H.'s clothes would be off
and that "[Z.J.H.] would lick [H.H.'s] private area." (R. 891.) H.H. stated
that she used the word "leak" because "when [Z.J.H.] would tell [her] to
[rub his thing], [Z.J.H.] would say that." (R. 892.)
H.H. stated that the last time she went into Z.J.H.'s room and
planned to ask Z.J.H. something, Z.J.H. had notes on his stomach that
read "[t]he only way—one way to wake me up is to remove the blanket
and suck me" and another one that read "that's the only way and
underlined only." (R. 892-93.) H.H. stated that she "slid" the notes under
her other adoptive brother K.H.'s door but that K.H. said that he threw
the notes away. (R. 892-94.) H.H. testified that it was not the first time
she had told K.H. about what Z.J.H. had done to H.H. H.H. testified that
4 CR-2023-0302
"[K.H.] told [H.H.] not to tell mom." 3 (R. 898-99.)
In his defense, Z.J.H. denied any inappropriate contact with H.H.
But Z.J.H. admitted that H.H. had walked in on him while he was
masturbating while watching pornography.
A jury convicted Z.J.H. of one count of first-degree sodomy and one
count of sexual abuse of a child less than 12 years old. Z.J.H. now appeals.
I. EVIDENCE OF H.H.'S ALLEGED PRIOR SEXUAL ABUSE
Z.J.H. argues that "[t]he circuit court denied [him] his
constitutional right to present a defense by excluding evidence that H.H.
ha[d] been previously sexually abused." (Z.J.H.'s brief, p. 15.) See Rule
412(b)(3), Ala. R. Evid. Z.J.H. argues that the evidence was relevant
because, he says, it "explained how [H.H.] could have possibly known
about the type of sexual acts alleged apart from the State's position that
Z.J.H. abused H.H." (Z.J.H.'s brief, p. 23.)
Rule 412, Ala. R. Evid., provides:
"(a) Evidence Generally Inadmissible. The following evidence is not admissible in any prosecution for criminal sexual conduct except as provided in sections (b) and (c):
"(1) evidence offered to prove that any
3K.H. denied that H.H. had told him about the sexual abuse or the
incident during which H.H. said she had slid notes under his door. 5 CR-2023-0302
complaining witness[4] engaged in other sexual behavior.
"….
"(b) Exceptions. The following evidence is admissible, if otherwise admissible under these rules:
"(3) evidence the exclusion of which would violate the constitutional rights of the defendant."
The State before trial moved in limine to exclude "any specific
instances of [H.H.'s] sexual behavior and/or sexual predisposition" under
Rule 412 (2d Supp. R. 132). Z.J.H. argued at a pretrial-motion hearing
that "there may have been prior abuse of the child, which would explain
the words that she knew at the time that these allegations were made,"
and that "the history of potential abuse is relevant." (1st Supp. R. 41.)
After noting that H.H.'s adoptive mother S.H. had called H.H.
"promiscuous,"5 the State argued that no such evidence existed:
"Actually, [Z.J.H.'s] mother [S.H.] did specifically on several occasions refer to [H.H.] as being promiscuous and
4A "complaining witness" is defined as "[a]ny person alleged to be
the victim of the crime charged, the prosecution of which is subject to the provisions of this rule." Rule 412(d)(1), Ala. R. Evid.
5Z.J.H.'s counsel also stipulated "that [H.H.] is not sexually promiscuous …. I will stipulate [H.H.] never had sex." (1st Supp. R. 41.) 6 CR-2023-0302
that it wasn't her son that had a problem, but that it was [H.H.] who was promiscuous. So in reading that and then this alleged prior sexual abuse.
"There is absolutely no record of that whatsoever. The only person who's ever alleged that, again, is [Z.J.H.'s] mother [S.H.], who is also the same one who called [H.H.] promiscuous. And she is the only person that has ever alleged that [H.H.] was potentially, you know, sexually abused or otherwise prior to their family getting her in foster care and then adopting.
"There were no reports of abuse. [The Department of Human Resources] did a thorough investigation into this case about family history and all of that, and there was no evidence or no alleged abuse prior to her coming into the H[.] family."
(1st Supp. R. 42.)
The circuit court granted the State's motion, holding: "[W]e're not
going to backdoor sexual behavior around rape shield just because it's a
novel argument unless you can show me some law that there is—here's
the rape shield, but here's an exception to that rule. And I hadn't heard
that." (1st Supp. R. 53-53.)
The State at trial objected to testimony from H.H.'s adoptive
mother S.H. about H.H.'s prior behavior—"[o]ne was bed-wetting …, and
the other one was masturbation." (1st Supp. R. 487-88.) Z.J.H. argued:
"We're not saying [H.H.] was sexually active or was promiscuous," but
"[w]hat knowledge—what words was [H.H.] exposed [to] before coming to
7 CR-2023-0302
this home." (1st Supp. R. 493.) The circuit court sustained the State's
objection, finding that these facts had not presented an exception to Rule
412. (1st Supp. R. 494-95.)
In Johnson v. State, 394 So. 3d 613, 617 (Ala. Crim. App. 2023), we
held that an alleged error in the granting of a motion in limine excluding
evidence must be preserved by an adequate offer of proof at trial. In
Johnson, this Court recognized that "[t]he circuit court, under Rule 412,
Ala. R. Evid., was tasked with balancing the privacy interests of S.T. with
Johnson's right to present a defense," but that Johnson's offer of proof
was lacking:
"Johnson asserted below, as he does on appeal, that the evidence was essential to explain S.T.'s knowledge of sexual acts and her age-inappropriate language. All that was before the circuit court when it ruled on the State's motion, however, was that S.T. 'was molested by an 11-year-old in Talladega County' the year before Johnson's abuse. (R. 18.)
"The allegations against Johnson were that S.T. performed oral sex on him and that he touched S.T.'s 'pocketbook' and her 'boobies.' Given the dearth of information before the circuit court, it would have been impossible for it to assess whether the prior instance of sexual abuse would have been relevant to explaining S.T.'s knowledge of sexual acts or her purportedly age-inappropriate language. The absence of an offer of proof similarly prevents this Court from assessing whether the circuit court abused its discretion in granting the
8 CR-2023-0302
State's motion to prohibit the evidence."
394 So. 3d at 617-18 (footnote omitted).
Z.J.H.'s proffer consisted of nothing more than unsupported,
nonspecific assertions. That inadequate proffer "prevents this Court from
assessing whether the circuit court abused its discretion in" disallowing
the evidence, and thus the issue is not preserved for appellate review.
Johnson, supra.
Even if the issue were preserved, the circuit court did not deny
Z.J.H. his constitutional right to present a defense by excluding the
alleged evidence indicating that H.H. had been sexually abused before
coming to Z.J.H.'s home. Cf. Ex parte Dennis, 730 So. 2d 138, 141 (Ala.
1999) ("[T]he constitutionality of [Rule 412's] application is to be
determined on a case-by-case basis."). The circuit court correctly
concluded that the purported evidence of H.H.'s prior sexual abuse—
which was entirely unsubstantiated—fell outside an exception to the
general inadmissibility of such evidence under Rule 412. Thus, Z.J.H. is
due no relief on this issue.
II. EXPERT TESTIMONY
Z.J.H. argues that the circuit court erred by limiting the testimony
9 CR-2023-0302
of forensic psychologist Dr. Kimberly Ackerson. Z.J.H. argues that Dr.
Ackerson, who evaluated Z.J.H., would have testified about Z.J.H.'s
personality traits and their relationship to sexual deviance. (Z.J.H.'s
brief, pp. 23-30.)
"[A] trial court has broad discretion over the admissibility of expert
testimony at trial, and a court's exercise of that discretion will not be
reversed unless it has palpably abused that discretion." R.D. v. State, 706
So. 2d 770, 775 (Ala. Crim. App. 1997).
The circuit court ruled that it would allow Dr. Ackerson to testify
about pornography addiction, a matter that was brought into trial
through, among other evidence, testimony that Z.J.H. had admitted to
his mother that he had a pornography addiction (R. 572):
"THE COURT: As it relates to the defendant's response regarding the differences as it relates to them opening the door regarding a certain character trait. I will note that the only character—well, the only issue that they have brought is the issue of a porn addiction and what [e]ffect the porn addiction would have on his behavior during that time.
"So, therefore, I am going to allow Dr. Ackerson to testify. However, it will be solely on what she's testified to at the end of this hearing which is related to the porn—the alleged porn addiction and what [e]ffect, if any—if he had one and, you know, what [e]ffect it had on—you know, basically everything she testified as it relates to the porn addiction."
10 CR-2023-0302
(R. 1066.) Z.J.H. declined to call Dr. Ackerson to testify "[c]onsidering the
limiting guidance from the Court." (R. 1070-71.)
To the extent that Z.J.H. argues that the circuit court erred by
prohibiting Dr. Ackerson's testimony about her psychological evaluation
of Z.J.H. and its relationship to general sexually deviant behavior, this
argument lacks merit.
In Vrocher v. State, 813 So. 2d 799 (Ala. Crim. App. 2001), this
Court affirmed a circuit court's ruling that an expert witness's testimony
was not relevant and was thus inadmissible because the witness "could
not state with a reasonable degree of scientific certainty or a reasonable
degree of medical certainty that there was a nexus between the
[defendant's] personality profile and his behavior on … the date of the
incident of sexual abuse." 813 So. 2d at 805. "Thus, Vrocher provides
implicit support for the conclusion that it is proper for an expert witness
to state an opinion in such terms." Keaton v. State, 375 So. 3d 44, 102
(Ala. Crim. App. 2021).
In R.D., supra, this Court affirmed a circuit court's refusal to allow
expert testimony about sexual-functioning-inventory- and personality-
inventory-test results that R.D. claimed were critical to his defense
11 CR-2023-0302
because, he said, they showed that he did not manifest the symptoms of
a sexual abuser of children. 706 So. 2d at 774. This Court agreed with the
circuit court's ruling that the evidence was both improper character
evidence and was "clearly irrelevant." 706 So. 2d at 775-76. The expert
"could not say, on the basis of the test results, whether R.D. was guilty
or innocent" and acknowledged that the sexual-functioning inventory
"[could] not tell [her] whether someone has ever actually experienced a
sexual episode with a person of this age category" and that the
personality inventory was not used for measuring sexual deviance. 706
So. 2d at 775.
"[E]ven though R.D.'s witnesses gave opinions about the reliability and validity of the tests, R.D. failed to establish that the evidence was relevant to the case and, in fact, demonstrated that it was not relevant. Evidence that, according to R.D.'s own witnesses, was unrelated to whether he committed the crimes with which he was charged was clearly irrelevant and properly excluded."
706 So. 2d at 776.
Like the accused in R.D., Z.J.H. failed to show that Dr. Ackerson's
testimony would have tended to prove or disprove a material fact as
required for relevancy under Rule 401, Ala. R. Evid., or that, even if
relevant, the evidence would not be substantially outweighed by the
12 CR-2023-0302
danger of confusing or misleading the jury under Rule 403, Ala. R. Evid.
Dr. Ackerson admitted that her testing could not determine whether
someone committed a specific sexual offense, and, while she opined that
she could testify about whether Z.J.H. met certain criteria consistent
with sexual deviancy, she appeared unable to testify with a reasonable
degree of scientific certainty or a reasonable degree of medical certainty
that there was a nexus between Z.J.H.'s personality profile and his
behavior on the dates that he allegedly sexually abused H.H. (R. 1043-
65.)
When the circuit court asked Dr. Ackerson whether she could
testify as required by Vrocher and its progeny, she replied:
"THE COURT: Okay. And so we have this personality profile of [Z.J.H.] And I guess the question per case law is are you able to testify that there is a nexus between the personality profile that you have of [Z.J.H.] and the alleged, I guess, behavior between—his alleged behavior in November of 2017 and November 2018 is the question.
"[Dr. Ackerson]: Well, again, I'm—I'm a little uncomfortable that people are focusing just on that test. I never used a test or a singular test.
"In other words, the testing allows us to get information about his overall values, his thoughts and thinking. And that would be similar to how he was at the time of the offense,
13 CR-2023-0302
especially if you look at all the other information provided."
(R. 1047-48.)
Under these circumstances, the circuit court did not err by refusing
to permit Dr. Ackerson's testimony about Z.J.H.'s personality traits
related to general sexually deviant behavior. Thus, Z.J.H. is due no relief
on this issue.
III. CERTIFIED FACILITY DOG
Z.J.H. argues that "[t]he circuit court erred by allowing a certified
facility dog" in the courtroom because, he says, the State "failed to show
the need for the use of a certified facility dog and [that] its use of the dog
throughout the trial caused significant prejudice to [him]." Z.J.H. also
argues that "the State's violation of the [circuit] court's order to keep its
certified facility dog out of view of the jury requires a new trial." (Z.J.H.'s
brief, pp. 31-38.)
Section 12-21-148(b), Ala. Code 1975, provides: "In a legal
proceeding, to reduce the stress of a witness and to enhance the ability of
the court to obtain full and accurate testimony, the court may allow a
certified facility dog to accompany a victim or witness while testifying."
Section 12-21-148(c) provides that the trial court exercises "sole
14 CR-2023-0302
discretion" over allowing a certified facility dog.
The State before trial moved to allow a certified facility dog under
§ 12-21-148 asserting that the dog's presence would help reduce H.H.'s
stress and anxiety after she had "expressed anxiety about testifying in
court." (1st Supp. R. 104-06.) Z.J.H. objected, arguing that the State's
"pet" would prejudice him, and requested similar accommodation at trial
because of his having "suffered humiliation and ostracization." (1st Supp.
R. 111.) The circuit court granted the State's motion and denied Z.J.H.'s
request for similar accommodation. (R. 21.)
Before H.H.'s testimony, Z.J.H. again objected, arguing that "this
dog was paraded through the hallway full of jurors" and that it was seen
through a glass panel "sitting and hugging and loving on [H.H.]" (R. 857-
58.) The State admitted that "[H.H.] [wa]s having a little bit of a
breakdown" and needed the comfort of the dog and that it had allowed
the dog to go to H.H. in the conference room and comfort her before she
took the stand. (R. 859-60.) The circuit court overruled Z.J.H.'s objection
and allowed the dog to sit with H.H., instructing the jury that the dog
was present in the courtroom and that it should not concern them or
create any prejudice as to any party. (R. 868.) Later during H.H.'s
15 CR-2023-0302
testimony, the dog made a noise, which Z.J.H.'s counsel described as
"whimpering" and a "distraction," requiring the dog's handler to signal
that it needed a break. (R. 906-07.) Z.J.H. again moved to exclude the dog
from the courtroom, which motion the circuit court denied. (R. 907-08.)
The State showed that the certified facility dog would assist in
H.H.'s ability to testify about the sexual abuse. Thus, the circuit court did
not abuse its considerable discretion in allowing the certified facility dog
to sit at H.H.'s feet during her testimony.
And Z.J.H.'s claim of unfair prejudice is not persuasive. Other than
his own statements, Z.J.H. offered nothing to show that the use of the
certified facility dog distracted the jury. Finally, the circuit court properly
instructed the jury that the certified facility dog should not concern them
or create any prejudice as to any party. "[W]e presume the jury followed
the [circuit] court's instructions." Harrison v. State, 398 So. 3d 955, 974
(Ala. Crim. App. 2023). Thus, Z.J.H. is due no relief on this issue.
IV. IMPEACHMENT OF K.H.
Z.J.H. argues that the circuit court erred by allowing the State, over
16 CR-2023-0302
his objections, to impeach K.H.'s testimony.6 Z.J.H. points to testimony
from Jefferson County Department of Human Resources employee
Nashira Palmer and statements made in H.H.'s forensic interview
pertaining to K.H., as well as several occasions during his own testimony.
Z.J.H. argues that, during those instances, the State impeached him
without specifically confronting him with the circumstances of his prior
statements as required by Rule 613(b), Ala. R. Evid. Z.J.H.'s issue is not
properly preserved for appellate review. See Ex parte Coulliette, 857 So.
2d 793, 794 (Ala. 2003) (quoting Newsome v. State, 570 So. 2d 703, 717
(Ala. Crim. App. 1989)) (" 'Review on appeal is restricted to questions and
issues properly and timely raised at trial.' "). "The statement of specific
grounds of objection waives all grounds not specified, and the trial court
will not be put in error on grounds not assigned at trial." Ex parte Frith,
526 So. 2d 880, 882 (Ala. 1987). Thus, Z.J.H. is due no relief on this issue.
6K.H., Z.J.H.'s brother and who was 12 or 13 years old at the time
of the allegations and 19 years old at the time of trial, denied that one week before his father had passed away, H.H. had disclosed to him that "[Z.J.H.] would make [H.H.] rub him until it leaked" or that "[K.H.] told [H.H.] not to tell [their] mom" or that "[H.H.] gave [K.H.] letters that [Z.J.H.] had [given] her." (R. 714-15.) Jefferson County Department of Human Resources employee Nashira Palmer testified and recalled that K.H. had admitted all those statements to her. 17 CR-2023-0302
V. WEIGHT OF THE EVIDENCE
Z.J.H. contends that "the jury's verdicts were not supported by the
great weight of the evidence." (Z.J.H.'s brief, p. 48.) Z.J.H. asserts that
the State's case was "based entirely on H.H.'s disclosure and testimony,"
that "no physical or other corroborating evidence exist[ed]," and that "due
to H.H.'s history of dishonesty, the State's evidence [wa]s so lacking here
[as] to render the verdicts wrong and unjust." (Z.J.H.'s brief, pp. 48-51;
Z.J.H.'s motion for a new trial, R. 223.)
" ' "Once a prima facie case has been submitted to the jury, this Court will not upset the jury's verdict except in extreme situations in which it is clear from the record that the evidence against the accused was so lacking as to make the verdict wrong and unjust. Deutcsh v. State, 610 So. 2d 1212, 1234-35 (Ala. Crim. App. 1992). This Court will not substitute itself for the jury in determining the weight and probative force of the evidence. Benton v. State, 536 So. 2d 162, 165 (Ala. Crim. App. 1988)."
" 'May v. State, 710 So. 2d 1362, 1372 (Ala. Crim. App. 1997).
" ' "Furthermore, on appeal, there is a presumption in favor of the correctness of the jury verdict. Saffold v. State, 494 So. 2d 164 (Ala. Crim. App. 1986). Although that presumption of correctness is strong, it may be overcome in a limited category of cases where the verdict is found to be palpably wrong or contrary to the great weight of the evidence. Bell v. State, 461 So. 2d 855, 865 (Ala.
18 CR-2023-0302
Crim. App. 1984)."
" 'Henderson v. State, 584 So. 2d 841, 851 (Ala. Crim. App. 1988).' "
S.A.J. v. State, 195 So. 3d 327, 345 (Ala. Crim. App. 2015) (quoting
Thompson v. State, 97 So. 3d 800, 810 (Ala. Crim. App. 2011)).
H.H.'s testimony alone sufficiently established a prima facie case of
first-degree sodomy, see § 13A-6-63, and sexual abuse of a child less than
12 years old, see § 13A-6-69.1. " '[T]he victim's testimony alone is
sufficient to establish a prima facie case of either rape or sexual abuse.' "
Williams v. State, 10 So. 3d 1083, 1087 (Ala. Crim. App. 2008) (quoting
Jones v. State, 719 So. 2d 249, 255 (Ala. Crim. App. 1996)). Considering
that, this Court holds that the evidence here is not so lacking as to
warrant reversal of the jury's verdicts. " ' " '[T]he credibility of witnesses
and the weight or probative force of testimony is for the jury to judge and
determine.' " ' " Williams, 10 So. 3d at 1087 (quoting Johnson v. State, 555
So. 2d 818, 820 (Ala. Crim. App. 1989) (additional citations omitted)).
Thus, Z.J.H. is due no relief on this issue.
VI. POSTRELEASE SUPERVISION
Although the issue has not been raised on appeal, this Court
recognizes that the circuit court did not impose a period of postrelease
19 CR-2023-0302
supervision on Z.J.H.'s conviction for first-degree sodomy. Because
"[m]atters concerning unauthorized sentences are jurisdictional," Hunt
v. State, 659 So. 2d 998, 999 (Ala. Crim. App. 1994), this Court may take
notice of an illegal sentence at any time. See, e.g., McCall v. State, 794
So. 2d 1243 (Ala. Crim. App. 2000). Z.J.H.'s conviction for first-degree
sodomy was for a Class A felony sex offense involving a child, and thus
the circuit court should have imposed on the conviction "an additional
penalty of not less than 10 years of post-release supervision to be served
upon the defendant's release from incarceration." § 13A-5-6(c), Ala. Code
1975. That statute provides:
"In addition to any penalties heretofore or hereafter provided by law, in all cases where an offender is designated as a sexually violent predator pursuant to Section 15-20A-19, [Ala. Code 1975,] or where an offender is convicted of a Class A felony sex offense involving a child as defined in Section 15- 20A-4, [Ala. Code 1975, 7] and is sentenced to a county jail or the Alabama Department of Corrections, the sentencing judge shall impose an additional penalty of not less than 10 years of post-release supervision to be served upon the defendant's release from incarceration."
See also Bishop v. State, 344 So. 3d 906, 915 (Ala. Crim. App. 2021).
7"Sex Offense Involving a Child" is defined as "[a] conviction for any
sex offense in which the victim was a child or any offense involving child pornography." § 15-20A-4(27), Ala. Code 1975. 20 CR-2023-0302
We thus remand this cause for the circuit court to impose not less
than 10 years of postrelease supervision on Z.J.H.'s conviction for first-
degree sodomy to be served upon Z.J.H.'s release from incarceration.
CONCLUSION
We affirm Z.J.H.'s conviction for first-degree sodomy and his
conviction and sentence for sexual abuse of a child under the age of 12.
We remand this cause to the circuit court with instructions for it to
conduct a new sentencing hearing at which Z.J.H., represented by
counsel, must be given a sentence that includes not less than 10 years of
postrelease supervision for his conviction for first-degree sodomy. Due
return must be filed with this Court no later than 56 days from the date
of this opinion. The return to remand must include a transcript of the
proceedings conducted on remand and a new sentencing order for the
first-degree-sodomy conviction.
AFFIRMED IN PART AND REMANDED WITH INSTRUCTIONS.
Windom, P.J., and Cole and Anderson, JJ., concur. Kellum, J.,
concurs in the result.