Curtis Lee Johnson v. State of Alabama

Rel: May 5, 2023

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, 2022-2023

_________________________

CR-21-0291

_________________________

Curtis Lee Johnson

v.

State of Alabama

Appeal from Cherokee Circuit Court

(CC-20-900036)

MINOR, Judge.

Curtis Lee Johnson appeals his convictions for two counts of first-

degree sodomy, see § 13A-6-63, Ala. Code 1975, and two counts of sexual

CR-21-0291

abuse of a child under the age of 12, see § 13A-6-69.1, Ala. Code 1975.1

On appeal, Johnson raises five issues arguing: (1) that the circuit court

erred by granting the State's motion in limine to exclude evidence that

S.T. was the victim of a prior sexual assault; (2) that the circuit court

erred by denying his motion in limine to exclude S.T.'s videotaped

interview; (3) that the jury pool was not made up of a fair cross-section of

the community because, he says, "the COVID pandemic resulted in the

systematic exclusion of all African-Americans from the jury panel"; (4)

that his substantial rights were violated when he received verdicts that

were not unanimous; and (5) that the State's evidence did not support his

convictions for sexual abuse of a child under 12. (Johnson's brief, p. 20.)

For the reasons below, we affirm the circuit court's judgment. But we

must remand this case to the circuit court for that court to impose post-

release supervision mandated by § 13A-5-6(c), Ala. Code 1975.

1The circuit court sentenced Johnson to 99 years' imprisonment on

each of the sodomy convictions and to 20 years' imprisonment on each of

the sexual-abuse convictions. The court ordered that those sentences

were to be served consecutively.

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FACTS

Six-year-old S.T., who was eight years old at the time of trial,

testified to incidents of sexual abuse involving her mother's boyfriend,

"Mr. Curtis," or Johnson. (R. 133.) One time, S.T. and Johnson were at

the "burn pile" outside Johnson's house when Johnson told S.T. to "suck

his penis." (R. 134.) On another occasion, Johnson told S.T. to get in the

shower with him and to do the "same thing," which referred to the prior

oral sex. (R. 135.) S.T. testified that on both occasions Johnson stated

that "this is what boys will do to you" or that "boys will do this to you."

(R. 134-35.)

S.T. recalled another incident in which her mother, C.T., walked

into the bathroom and saw Johnson touching her "pocketbook."2 (R. 135.)

S.T. asked, "Did you see that?" and C.T. walked outside and "got her gun."

(R. 136.) S.T. covered her ears because she was scared that C.T. was going

to "kill [Johnson]." (R. 136.) Johnson walked out of the bathroom and

stated, "I just touched her belly" to which S.T. responded, "No, you did

2"Pocketbook" refers to S.T.'s vagina.

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not." (R. 136.) S.T. also stated that Johnson touched her "boobies."

(State's Exhibit 8, minute 8:12. 3)

In the summer of 2019, C.T. allowed her then-boyfriend Johnson to

watch her daughter S.T. while she worked as a nurse near Centre. C.T.

testified that on July 23, 2019, she saw Johnson "grope [S.T.] in her

private area." (R. 150.) C.T. testified that she "lost it" and yelled, "What

the fuck did I just see?" (R. 151.) C.T. testified that S.T. stated, "Mom,

did you see that? … He touched me down in my pocketbook." (R. 151.)

C.T. testified that she went to her car to get her gun but that "Johnson

went flying past [C.T.]" so she said, "[S.T.], let's just get our stuff and go."

(R. 152.) C.T. testified that before she and S.T. could leave the house,

Johnson came back to the house and told C.T. to "just let it go" because,

he said, "we were horseplaying; I took it too far." (R. 153.) C.T. testified

that she threatened to call Johnson's church and report the incident to

the pastor and that Johnson responded, "Don't call the pastor. They're

going to kick me off the deacon board." (R. 153.) C.T. also testified that

3Nancy Green, Forensic Interviewer at the Talladega County Child

Advocacy Center ("CAC"), testified that she interviewed S.T. days after

the incident. The circuit court admitted a recording of the interview. See

State's Exhibit 8.

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Johnson stated, "Can I pay you? Whatever it is. Just don't call and tell

nobody." (R. 154.)4

Johnson, who was 68 years old at the time of trial, testified in his

own defense. Testifying about the bathroom incident, Johnson explained

that he pulled S.T.'s shirt so that he could reach for the pliers that S.T.

held in her hands, and he denied touching her vagina.

A jury convicted Johnson of two counts of first-degree sodomy and

two counts of sexual abuse of a child under the age of 12. Johnson timely

appealed.

I. STATE'S MOTION IN LIMINE

Johnson argues that the circuit court abused its discretion by

preventing him from questioning S.T. about a prior sexual assault by

another individual. (Johnson's brief, pp. 26-33.) This issue is not properly

before this Court for review.

Before trial, the State moved in limine to prohibit Johnson's use of

any evidence related to a prior instance of sexual abuse suffered by S.T.

4T.T.,C.T.'s sister, testified that on July 23, she received a call from

C.T. about S.T. being abused by Curtis. T.T. telephoned and confronted

Curtis. The circuit court admitted a recording of the telephone

conversation. See State's Exhibit 7.

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The State argued that the evidence was prohibited by Rule 412, Ala. R.

Evid. 5 Johnson responded in a motion of his own that the evidence was

essential to explain S.T.'s knowledge of sexual acts and her age-

inappropriate language. The circuit court granted the State's motion.

Johnson explicitly argues in his brief that he is challenging the

circuit court's granting of the State's motion in limine, yet the court's

ruling preserved nothing for appeal. See Harrington v. State, 858 So. 2d

5Rule 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 complaining

witness 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."

A "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.

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278, 291-92 (Ala. Crim. App. 2002) (recognizing that it is generally held

that the granting of a motion in limine can never be reversible error). To

preserve this issue for appeal, it was incumbent upon Johnson to make

an offer of proof during trial. Id. at 291. "It is this refusal at trial to

accept that proffered evidence, not the granting of the pretrial motion in

limine, that serves as the basis for reversible error." Id. (emphasis

omitted).

The 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. 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 primary reason for the offer of proof is that it

better enables the trial judge to consider further the claim for

admissibility of such evidence. The secondary reason is that

the offer of the proposed [evidence] places the same in the

official record for the benefit of the appellate court called upon

to decide whether there has been error committed in the

ruling.' "

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Ex parte Harris, 461 So. 2d 1332, 1334 (Ala. 1984) (quoting Charles W.

Gamble, McElroy's Alabama Evidence § 425.01(1) (3d ed. 1977)). 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. 6 The absence of an offer of

proof similarly prevents this Court from assessing whether the circuit

court abused its discretion in granting the State's motion to prohibit the

evidence.

Because Johnson failed to make an offer of proof regarding the prior

sexual abuse suffered by S.T., he has failed to preserve this issue for

appellate review. See Harrington, 858 So. 2d at 292. Johnson is due no

relief on this claim. See Ex parte Coulliette, 857 So. 2d 793, 794 (Ala.

2003) (" 'Review on appeal is restricted to questions and issues properly

and timely raised at trial.' Newsome v. State, 570 So. 2d 703, 717 (Ala.

6Johnson did not identify for the circuit court the specific knowledge

or the language that he believed was age-inappropriate.

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Crim. App. 1989).").

II. JOHNSON'S MOTION IN LIMINE

Johnson argues the circuit court violated his Sixth Amendment7

right to confront his accuser when it allowed S.T.'s videotaped interview.

(Johnson's brief, pp. 40-42.)

As best we can determine, Johnson objected to the videotaped

interview on the mistaken belief that S.T. was not going to testify. (R.

25.) After the State confirmed that S.T. would testify, the circuit court

asked Johnson "[d]oes that speak correctly?" to which Johnson replied,

"Yes, Your Honor. I mean, we would like to exclude the video. I think the

law allows it in, but I'm making that objection for constitutional grounds

there, and we'll stand on that." (R. 25.) Later, when the State moved to

admit the videotaped interview as State's Exhibit 8, Johnson again

objected: "Judge, I'd just renew my objection that I made prior to trial,

which was that they had given notice, and I have objected to the notice of

7The Confrontation Clause of the Sixth Amendment, made

applicable to the States through the Fourteenth Amendment, provides:

"In all criminal prosecutions, the accused shall enjoy the right ... to be

confronted with the witnesses against him."

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intent to use it." (R. 194.) The circuit court overruled the objection and

allowed State's Exhibit 8 to be played. (R. 194.)

Johnson's objection based on his mistaken belief that S.T. was not

going to testify is moot. Any argument that Johnson now raises regarding

the video's admissibility considering the circuit court's "Rape Shield

ruling," was not raised below. "Review on appeal is restricted to questions

and issues properly and timely raised at trial." Newsome v. State, 570

So. 2d 703, 717 (Ala. Crim. App. 1989). Thus, Johnson is due no relief on

this issue.

III. JURY POOL

On appeal, Johnson argues that the jury pool was not made up of a

fair cross-section of the community because, he says, "the COVID

pandemic resulted in the systematic exclusion of all African-Americans

from the jury panel," thereby depriving him of his constitutional rights.

(Johnson's brief, pp. 42-49.)

" 'In Duren v. Missouri, 439 U.S. 357, 364, 99

S.Ct. 664, 58 L.Ed.2d 579 (1979), the Supreme

Court of the United States explained:

" ' "In order to establish a prima facie

violation of the fair-cross-section

requirement, the defendant must show

(1) that the group alleged to be

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excluded is a 'distinctive' group in the

community; (2) that the representation

of this group in venires from which

juries are selected is not fair and

reasonable in relation to the number of

such persons in the community; and (3)

that this underrepresentation is due to

systematic exclusion of the group in the

jury-selection process."

" 'The Duren Court defined systematic exclusion as

exclusion that is "inherent in the particular jury-

selection process utilized." Id. at 366; see also

Gibson v. Zant, 705 F.2d 1543, 1549 (11th Cir.

1983) ( "[T]he Duren Court ... defined 'systematic'

as 'inherent in the particular jury-selection

process utilized.' "). "[T]he fair cross-section

requirement ensures only a venire of randomness,

one free of systematic exclusion. It does not ensure

any particular venire." Gavin v. State, 891 So. 2d

907, 945 (Ala. Crim. App. 2003) (internal citations

and quotations omitted). "Rather than being

entitled to a cross-sectional venire, a defendant

has a right only to a fair chance, based on a

random draw, of having a jury drawn from a

representative panel." Id. (internal citations and

quotations omitted). This Court has repeatedly

held that the random drawing of veniremembers

from a list of licensed drivers satisfies the fair-

cross-section requirement. See id. at 946–47;

Carroll v. State, 852 So. 2d 801, 807–08 (Ala. Crim.

App. 1999); Clemons v. State, 720 So. 2d 961, 972

(Ala. Crim. App. 1996); Sistrunk v. State, 630 So.

2d 147, 149–50 (Ala. Crim. App. 1993).'

"Gholston v. State, 57 So. 3d 178, 180–81 (Ala. Crim. App.

2010)."

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Jackson v. State, 177 So. 3d 911, 917-18 (Ala. Crim. App. 2014).

During jury selection, Johnson stated that the afternoon jury panel

had more Black persons on it and requested that that panel be looked at

to "have a more accurate jury pool of [Johnson's] peers." (R. 88-89.) The

circuit court responded that there could have been the same number of

Black persons on the morning panel. The circuit court denied the request.

(R. 90-91.)

At a hearing on Johnson's motion for a new trial, the State recalled:

"[A]n objection was raised to the constitution of the panel,

and a discussion was held on the record then during the trial

that the panel was randomly selected based upon the driver's

licenses of the citizens of Cherokee County, and that method

of constituting jury panels has been litigated time and again

and held to be constitutional."

(R. 355.) Later, the circuit court addressed the issue:

"THE COURT: Let me go back to Paragraph 11 on the

Motion for Judgment of Acquittal, the first thing you argued,

that the defendant was denied his Sixth Amendment right

based on the makeup of the jury panel.

"Here's my recollection of what happened is that,

because of COVID, we called juries in two different panels,

randomly selected. One at 9:00 o'clock. One at 1:30. And the

9:00 o'clock panel had enough folks on it for us to go forward

and select a jury. We had other cases for trial that week, and

so we needed to get it started, and so we did.

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"You all raised an objection that there were no African-

Americans in the panel at 9:00 o'clock, and I asked then, 'Are

there African-Americans in the panel at 1:30?' And I don't

remember that you all said yes or that you even knew.

"As it turns out—and I think it's important for the

record to contain this—that afternoon when the 1:30 panel

came in here, there was one. There was one African-American

in the 1:30 panel. There weren't any at the 9:00 o'clock panel.

And I think it's important, also, to note for appellate review

that both the defendant and the victim and the victim's family

in this case are all African-Americans. So this is not an

instance in which the victim and the defendant were of two

different races.

"And then, also, I will ask the same question about

Paragraph 11 that I've asked you about these others. You

made allegations here, but what does the law say about this?

What cases can you cite to me that would support your

position?

"[Johnson's counsel]: Yes, Your Honor. We're specifically

arguing—specifically, the Sixth Amendment itself, just the

right to a fair and impartial trial. I'm not really going under

Batson [v. Kentucky, 476 U.S. 79 (1986),] here in that the

prosecution struck him. More specifically, that there was

nobody there. And I get there was only one that afternoon.

"And, also, some statistics, I think there's, you know,

maybe five percent African-Americans in our county. But we

just felt like it was not a fair cross-section of his peers and

that we were only allowed those 24 on that panel."

(R. 360-62.)

In denying Johnson's motion for a new trial on this issue, the circuit

court held:

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"[Johnson] made a variety of unsupported allegations in

his motion that the Court deems too frivolous to address

specifically, with the exception of the claim that in the jury

panel he selected from 'there were no African-Americans on

the entire panel from which strikes were made. That a panel

that arrived later in the trial week for other trials had

African-Americans on it.' The use of the plural 'African-

Americans' is inaccurate. As the Court noted at the hearing

on the motion, when the afternoon panel of jurors arrived,

there was one African-American that appeared for jury

service.

"At the time of jury selection, [Johnson] raised the lack

of African-Americans on the panel as an issue. The Court gave

him an opportunity to explain how the afternoon panel might

be better. However, [Johnson] offered no explanation as to the

makeup (or potential makeup) of the afternoon panel. His

request to use the afternoon panel was, therefore, speculative

as he had no information to provide the Court as to the racial

makeup of the afternoon panel.

"Further, [Johnson] has not presented the Court with

any information as to the racial makeup of the jurors

summoned for jury service. It could make a difference if the

panel of jurors summoned (by the Administrative Office of

Courts in Montgomery) contained no or only very few African-

Americans. However, no such information was provided by

[Johnson].

"Further, [Johnson] has not supported his argument

with adequate citation to and explanation of legal authority.

Merely citing cases and constitutional amendments without

adequate legal analysis is insufficient.

"Finally, as the Court noted at the motion hearing,

[Johnson] and the victim and the victim's family are all

African-Americans. This is not a case in which there is a racial

difference between the defendant and the victim."

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(C. 58-59.)

We agree with the circuit court's holding that Johnson did not prove

a prima facie violation of the fair-cross-section requirement under Duren

v. Missouri, 439 U.S. 357 (1979). Thus, Johnson is due no relief on this

issue.

IV. UNANIMOUS VERDICTS

Johnson argues that his substantial rights were violated when he

received verdicts that, he says, were not unanimous. Johnson argues that

an unanimity charge should have been given because, he says, the jury

could not determine which acts constituted each charge of sexual abuse

of a child under 12.

The record shows that the circuit court instructed the jury: "The

defendant is charged with two counts of sexual abuse of a child less than

12 years old. …You must consider each of the two counts independently

of one other." (R. 320-21.) Following the circuit court's jury charge,

Johnson's counsel said that he had: "No objection, Your Honor." (R. 331.)

"Generally, Alabama follows a strict-election rule, by

which the State must elect the offense on which it will proceed

'[w]here the evidence discloses two or more offenses growing

out of distinct and separate transactions.' R.L.G. v. State, 712

So. 2d 348, 355 (Ala. Crim. App. 1997), aff'd, 712 So. 2d 372

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(Ala. 1998) (internal quotation marks omitted). However, the

strict-election rule does not apply in cases of sexual abuse of

children by a resident abuser that involve purely generic

evidence, i.e., 'evidence of sexual abuse perpetrated upon a

young child so often and in so many locations "by an abuser

residing with the child ... that the young child loses any frame

of reference in which to compartmentalize the abuse into

'distinct and separate transactions,' " ' or that involve a

combination of both specific and generic evidence. Shouldis v.

State, 38 So. 3d 753, 761 n.4 (Ala. Crim. App. 2008) (quoting

R.L.G., 712 So. 2d at 356). In those cases, the either/or rule

applies: 'The "either-or" rule provides that the prosecution

must elect which single act it is relying [on] for a conviction or

else the trial judge must give a specific unanimity instruction.'

R.A.S. v. State, 718 So.2d 117, 119 (Ala. 1998).

" '[T]he "either/or" rule ... as that rule is modified

for generic evidence [provides that] where the

evidence of more than one incident of sexual

molestation to a child victim by a resident child

molester is purely generic and where "there is no

reasonable likelihood of juror disagreement as to

particular acts, and the only question [for the jury]

is whether or not the defendant in fact committed

all of [the incidents]," the trial court should

instruct the jury that it can find the defendant

guilty only if it unanimously agrees that he

committed all the incidents described by the

victim.'

"R.L.G., 712 So. 2d at 367 (emphasis omitted). Moreover:

" 'In cases … that involve both generic and specific

evidence, where evidence of multiple culpable acts

is adduced to prove a single charged offense, jury

unanimity must be protected. Therefore, in such a

case, the defendant is entitled either to have the

State elect the single act upon which it is relying

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for a conviction or to have the court give a specific

unanimity instruction. If the State chooses not to

elect the specific act, the trial court must instruct

the jury that all 12 jurors must agree that the

same underlying criminal act has been proved

beyond a reasonable doubt, thereby assuring a

unanimous verdict on one criminal act.'

"R.A.S., 718 So. 2d at 122 (footnote omitted)."

State v. Kerley, 260 So. 3d 891, 898-99 (Ala. Crim. App. 2017).

Here, because Johnson stated that he was satisfied with the circuit

court's instructions, any challenge to those instructions is not preserved.8

See, e.g., Shouldis v. State, 953 So. 2d 1275, 1282 (Ala. Crim. App. 2006).

Thus, Johnson is due no relief on this issue.

V. SUFFICIENCY OF THE EVIDENCE

On appeal, Johnson argues that the State's evidence could not

support his convictions for sexual abuse of a child under 12.9 Johnson

8Defense counsel's argument that he ran into a juror who said that

Johnson had not produced enough evidence that he was not guilty was

not evidence that the circuit court's unanimity instruction was not

sufficient. See Johnson's Motion for a New Trial Hearing, R. 358-59. See

Ex parte Alabama Dep't of Mental Health & Mental Retardation, 937 So.

2d 1018, 1026 (Ala. 2006) ("Argument of counsel is not evidence.").

9Johnson does not challenge the sufficiency of the evidence

supporting his sodomy convictions. Thus, those convictions are affirmed.

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argues that the State failed to prove which of Johnson's acts constituted

the "sexual contact" as defined in § 13A-6-60(3), Ala. Code 1975.

Section 13A-6-60(3), Ala. Code 1975, defines "sexual contact" as

"[a]ny touching of the sexual or other intimate parts of a person done for

the purpose of gratifying the sexual desire of either party. The term does

not require skin to skin contact." " '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)).

" ' " ' [T]he credibility of witnesses and the weight or probative force of

testimony is for the jury to judge and determine.' " ' " Zumbado v. State,

615 So. 2d 1223, 1241 (Ala. Crim. App. 1993) (quoting Johnson v. Sate,

555 So. 2d 818, 820 (Ala. Crim. App. 1989), quoting other cases). And

circumstantial evidence can support a conviction, and that question is for

the jury. See White v. State, 546 So. 2d 1014, 1017 (Ala. Crim. App. 1989).

The State presented sufficient evidence of sexual contact within the

meaning of § 13A-6-60(3), Ala. Code 1975, when it showed multiple acts

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of sexual abuse, including Johnson's touching six-year-old S.T.'s

"pocketbook," or vagina, and "boobies." Thus, based on the record before

us, we hold that there was sufficient legal evidence from which the jury

could reasonably have found Johnson guilty of two counts of sexual abuse

of a child under the age of 12. Johnson is due no relief on this issue.

VI. POST-RELEASE SUPERVISION UNDER § 13A-5-6(c)

Finally, although the circuit court's imposition of 99-year sentences

on Johnson's convictions for first-degree sodomy was authorized, because

those convictions are for Class A felony sex offenses involving a child, the

circuit court also must impose on each 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 subsection 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, or

where an offender is convicted of a Class A felony sex offense

involving a child as defined in Section 15-20A-4,[10] and is

sentenced to a county jail or the Alabama Department of

Corrections, the sentencing judge shall impose an additional

10"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.

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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). Thus,

we must remand this case for the circuit court to impose the required

periods of post-release supervision on Johnson's convictions for first-

degree sodomy.

CONCLUSION

We affirm Johnson's convictions for two counts of first-degree

sodomy and two counts of sexual abuse of a child under the age of 12, and

we affirm his sentences for the sexual-abuse convictions. As to Johnson's

sentences for first-degree sodomy, a Class A felony offense, we remand

this cause to the circuit court for it to conduct a new sentencing hearing

at which Johnson, represented by counsel, will be sentenced in

accordance with this opinion. 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.

AFFIRMED IN PART; REMANDED WITH INSTRUCTIONS.

Windom, P.J., and McCool and Cole, JJ., concur. Kellum, J., concurs

in the result.

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