Lead Opinion
Eric Lemont Higdon appeals his convictions for first-degree sodomy of a child less than 12 years old, see § 13A-6-63(a)(3), Ala.Code 1975, and first-degree sodomy by forcible compulsion, see § 13A-6-63(a)(l), Ala.Code 1975.
In the summer of 2012, Higdon, who was 17 years old, worked as an intern at Momma’s Place Christian Academy, a day-care facility. Higdon’s duties primarily consisted of cleaning the day-care facility and supervising children, either alone or in conjunction with an adult. During that summer, K.S., who was then four years old, was enrolled as a student at Momma’s Place.
On August 23, 2012, A.D., the parent of another child enrolled in the day-care facility, filed a police report alleging that Hig-don had performed similar acts on her son. A.D. contacted K.S.’s mother, K.W., to alert her to the allegations against Higdon. K.W. asked K.S. if anyone at the day-care facility had touched him inappropriately. K.S. replied that Higdon had touched him and had “put his mouth on his wee-wee.” (R. 304.) During an interview with the clinical director of the Prescott House, a child-advocacy center, K.S. stated that Higdon had touched him and had performed oral sex on him on several occasions in the bathroom at Momma’s Place.
On appeal, Higdon argues that the State’s evidence was insufficient to sustain his conviction for first-degree sodomy by forcible compulsion.
““‘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)). 1 “The test used in 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).”
R.E.N. v. State,
Section 13A-6-63(a)(a), Ala.Code 1975, provides that “[a] person commits the crimé of sodomy in the first degree if ... [h]e engages in deviate sexual intercourse with another person by forcible compulsion.” Section 13A-6-60(8), Ala.Code 1975, defines forcible compulsion as a “[p]hysical force that overcomes earnest resistance or a threat, express or implied, that places another person in fear of immediate death or serious physical injury to himself or another person.”
In viewing the evidence in the light most favorable to the State, this Court must conclude that the State failed to “present
Because the State failed to present any evidence of physical force or threat of harm, it failed to establish an essential element of first-degree sodomy under § 13A-6-63(a)(l), Ala.Code 1975. Accordingly, Higdon’s conviction based on the charge of first-degree sodomy by forcible compulsion must be reversed, and a judgment rendered in his favor on that charge. Higdon does not challenge his conviction for first-degree sodomy of a child less than 12 years old, see § 13A-6-63(a)(3), Ala. Code 1975; therefore, the circuit court’s judgment as to that conviction is affirmed.
AFFIRMED IN PART; REVERSED IN PART ÁND JUDGMENT RENDERED.
Notes
. The State also charged Higdon with first-degree sodomy of a child less than 12 years old, a violation of § 13A-6-63(a)(3), Ala.Code 1975, and first-degree sodomy by forcible compulsion, a violation of § 13A — 6—63(a)(1), Ala.Code 1975, in two other cases involving two other alleged victims. All three cases were tried together. The jury convicted Hig-don in only one of the three cases, and that case is the subject of this appeal.
. Higdon does not appear to make an argument challenging the sufficiency of the evidence in relation to his conviction for first-degree sodomy of a child less than 12 years old, a violation of § 13A-6-63(a)(3), Ala.Code 1975.
Concurrence Opinion
concurring specially.
I concur with the majority’s opinion that, under the Supreme Court of Alabama’s holding in Ex parte J.A.P.,
I write specially to urge the Alabama Supreme Court to revisit its holding in J.A.P. Specifically, I do not believe that the Supreme Court’s restriction of an implied threat “only to cases involving the sexual assault of children by adults who exercised positions of domination and control over the children,” Ex parte J.A.P.,
KELLUM, J., concurs.
Concurrence Opinion
concurring in part and concurring in the result.
I concur in the Court’s judgment affirming Eric Lamont Higdon’s conviction for first-degree sodomy of a'child less than 12 years old, see § 13A-6-63(a)(3), Ala.Code 1975. As to the Court’s judgment reversing Higdbh’s conviction for 'first-degree sodomy by. forcible compulsion, see § 13A-6-63(a)(l), Ala.Code 1975, and rendering a judgment in Higdon’s favor, I concur in the result.
I agree that the Alabama Supreme Court’s decision in Ex parte J.A.P.,
A case such as C.D.B. v. State,
In my dissenting opinion in C.D.B., I stated:
“ ‘Forcible compulsion’ is defined as ‘[p]hysical force that overcomes earnest resistance or a threat, express or implied, that places a person in fear of immediate death or serious physical injury to himself or another person.’ § 13A-6-60(8), Ala.Code 1975 (emphasis added).
“The main opinion holds that there was insufficient evidence of forcible compulsion to support- C.D.B.’s conviction for first-degree rape. As to whether the State presented sufficient evidence of forcible compulsion by an implied threat, the main opinion cites Ex parte J.A.P.,853 So.2d 280 (Ala.2002). The main opinion states that in Ex parte J.A.P. the Alabama Supreme Court held that ‘its decision in Powe v. State,597 So.2d 721 (Ala.1991), under which .an implied threat may be inferred, applies only in “cases involving the sexual assault of children by adults who exercised positions of domination and control over the children” and does not apply in cases involving sexual relations between two children.’81 So.3d at 401 (quoting Ex parte J.A.P.,853 So.2d at 284 ). The máin opinion also cites D.W. v. State,3 So.3d 955 , 957 (Ala.Crim.App.2008), for the same proposition.
“To the extent the main opinion suggests that Ex parte J.A.P. holds that the State may never prove the element of forcible compulsion by an implied threat when the accused is a juvenile, I respectfully disagree. If Ex parte J.A.P. indeed stands for the proposition that forcible compulsion may never be proved by an implied threat in -a case involving two juveniles, the decision -is in conflict with the plain meaning of the language in the statutory definition of ‘forcible compulsion’ in § 13A-6~60(8), Ala.Code 1975, which does not exclude from its application cases involving two juveniles. The holding in Ex parte J.A.P., however, is clearly limited to those situations in which the State attempts to prove an implied threat solely by alleging that the threat may be inferred based upon the accused’s allegedly exercising a position of domination and control over the alleged victim. Ex parte J.A.P.,853 So.2d at 284 (‘This Court [in Powe v. State,597 So.2d 721 (Ala.1991),] made it quite clear that its holding would apply only to cases involving the sexual assault of children by adults who exercised positions of domination and control over the children.’).”
The facts of the instant case, although different than those in C.D.B., are also egregious. Higdon’s case, like C.D.B., illustrates the problems in applying Ex parte J.A.P. The legislature, as noted, has included “implied” threats in its definition of “forcible compulsion.” For that definition to have appropriate application in cases involving a juvenile defendant and juvenile accuser, the Alabama Supreme Court needs to revisit Ex parte J.A.P.
Concurrence Opinion
concurring specially.
Although I concur with the majority’s opinion that, under the Supreme Court of Alabama’s holding in Ex parte J.A.P.,
“Higdon was 17 years old and worked at a day-care facility, where he acted in a role of authority-over the children. A four-year-old child would have believed that Higdon was an authority figure who, like a parent, had to be obeyed. For all relevant purposes, Higdon was in no different position than an adult who exercised a position of domination and control over-a1 child. A four-year-old child in these circumstances would have believed that disobeying Higdon’s instructions carried ‘an implied 'threat of some sort of disciplinary action.’ Powe v. State,597 So.2d 721 , 728-29 (Ala.1991).”