CourtListener 10761599•Joseph Clarence Cox v. State of Alabama
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Rel: December 19, 2025
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Alabama Court of Criminal Appeals
OCTOBER TERM, 2025-2026
_________________________
CR-2024-0239
_________________________
Joseph Clarence Cox
v.
State of Alabama
Appeal from Etowah Circuit Court
(CC-21-1877, CC-21-1878, and CC-22-154)
PER CURIAM.
Joseph Clarence Cox was convicted of two counts of rape in the first
degree by forcible compulsion, see § 13A-6-61(a)(1), Ala. Code 1975, two
counts of sodomy in the first degree by forcible compulsion, see § 13A-6-
63(a)(1), Ala. Code 1975, and eight counts of sexual abuse in the first
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degree by forcible compulsion, see § 13A-6-66(a)(1), Ala. Code 1975. The
trial court sentenced Cox to 25 years' imprisonment for each of the rape
and sodomy convictions and to 10 years' imprisonment for each of the
sexual-abuse convictions, the sentences to run consecutively.
Cox, who was a dentist, was charged in 3 separate indictments with
18 sex offenses involving 12 different women, all of whom were either
employees or patients of his dental practice. The trial court consolidated
the indictments for trial over Cox's objection. Before trial, the State
dismissed three of the charges, and the jury subsequently acquitted Cox
of three charges. 1 The jury convicted Cox of 12 sex offenses involving 8
women. Specifically, Cox was convicted of one count of sexual abuse in
the first degree with respect to A.H., a patient (case no. CC-21-1877); one
count of sexual abuse in the first degree with respect to S.T., an employee
(case no. CC-21-1878); one count of rape in the first degree, two counts of
sodomy in the first degree, and one count of sexual abuse in the first
degree with respect to K.H., an employee (case no. CC-22-154); one count
of rape in the first degree and one count of sexual abuse in the first degree
1In case no. CC-22-154, the State dismissed one charge of sexual
abuse in the first degree and two charges of indecent exposure, and the
jury acquitted Cox of three charges of sexual abuse in the first degree.
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with respect to C.K., an employee (case no. CC-22-154); one count of
sexual abuse in the first degree with respect to B.B., an employee (case
no. CC-22-154); one count of sexual abuse in the first degree with respect
to A.J., an employee (case no. CC-22-154); one count of sexual abuse in
the first degree with respect to B.J., an employee (case no. CC-22-154);
and one count of sexual abuse in the first degree with respect to A.P., an
employee (case no. CC-22-154). We note that Cox asserted the defense of
consent to the rape and sodomy charges and denied the sexual-abuse
charges. Cox timely filed a motion for a new trial, which the trial court
denied after a hearing.
I.
Cox first contends on appeal that the evidence was insufficient to
sustain his convictions. He preserved this issue by moving for a judgment
of acquittal at the close of the State's case and by raising the issue in his
motion for a new trial.
" ' "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
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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)."
Gavin v. State, 891 So. 2d 907, 974 (Ala. Crim. App. 2003). The victim's
testimony, alone, is sufficient to sustain a conviction. See, e.g., Black v.
State, 295 So. 3d 1120 (Ala. Crim. App. 2019), and the cases cited therein.
A person commits the crime of rape in the first degree if that person
"[e]ngages in sexual intercourse with another person by forcible
compulsion." § 13A-6-61(a)(1), Ala. Code 1975. Sexual intercourse "has
its ordinary meaning and occurs upon any penetration, however slight;
emission is not required." § 13A-6-60(4), Ala. Code 1975. A person
commits the crime of sodomy in the first degree if that person "[e]ngages
in sodomy with another person by forcible compulsion." § 13A-6-63(a)(1),
Ala. Code 1975. Sodomy is "[a]ny sexual act involving the genitals of one
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person and the mouth or anus of another person." § 13A-6-60(5), Ala.
Code 1975.
A person commits the crime of sexual abuse in the first degree if
that person "[s]ubjects another person to sexual contact by forcible
compulsion." § 13A-6-66(a)(1), Ala. Code 1975. Sexual contact is "[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" but "does not
require skin to skin contact." § 13A-6-60(3), Ala. Code 1975. Intimate
parts "refers to any part of the body which a reasonable person would
consider private with respect to touching by another," including any
"parts of the body in close proximity to the primary sexual areas which a
reasonable person would deem private." Parker v. State, 406 So. 2d 1036,
1039 (Ala. Crim. App. 1981). The mouth, breast, buttocks, stomach, and
thigh are all considered to be intimate parts. See, e.g., Cofer v. State,
[Ms. CR-2023-0008, May 3, 2024] ___ So. 3d ___ (Ala. Crim. App. 2024);
Lucas v. State, 204 So. 3d 929 (Ala. Crim. App. 2016); D.L.R. v. State,
188 So. 3d 720 (Ala. Crim. App. 2015); Pettibone v. State, 91 So. 3d 94
(Ala. Crim. App. 2011); and Parker, supra. See also § 13A-11-40(a)(1),
Ala. Code 1975 (defining "intimate areas" for purposes of the voyeurism
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statutes as "[a]ny portion of a person's body, whether or not covered by
undergarments, that are traditionally covered by undergarments to
protect that portion from public view, including genitals, pubic areas,
buttocks, and female breasts"). In addition, the term sexual contact
includes not only the defendant's touching the sexual or intimate parts
of the victim, but the victim's touching the sexual or intimate parts of the
defendant "as long as that touching is caused by the defendant." D.L.R.,
188 So. 3d at 728. See also Lucas, 204 So. 3d at 934 ("[E]vidence that a
defendant subjected a victim to the touching of his sexual or other
intimate parts was sufficient evidence to show sexual contact.").
The legislature amended the definition of forcible in 2019, before
the crimes in this case occurred. See Act. No. 2019-465, Ala. Acts 2019.
Before the 2019 amendment, forcible compulsion required either
"[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." Former § 13A-6-60(8), Ala.
Code 1975. Section 13A-6-60(1), Ala. Code 1975, now provides:
"Forcible Compulsion. Use or threatened use, whether
express or implied, of physical force, violence, confinement,
restraint, physical injury, or death to the threatened person
or to another person. Factors to be considered in determining
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an implied threat include, but are not limited to, the
respective ages and sizes of the victim and the accused; the
respective mental and physical conditions of the victim and
the accused; the atmosphere and physical setting in which the
incident was alleged to have taken place; the extent to which
the accused may have been in a position of authority,
domination, or custodial control over the victim; or whether
the victim was under duress. Forcible compulsion does not
require proof of resistance by the victim."
Notably, the 2019 amendment expressly removed the requirement
that the victim resist the use of force and the requirement that a threat
place the victim in "fear of immediate death or serious physical injury."
Moreover, the amendment expanded the definition to include not only
"physical force" but also "violence, confinement, restraint, physical
injury, or death." In addition, the legislature provided a list of factors to
be considered in determining whether there is an implied threat, which
we note are the same factors the Alabama Supreme Court adopted in
Powe v. State, 597 So. 2d 721 (Ala. 1991), under the former definition of
forcible compulsion, for determining whether there was an implied threat
when the victim was a child. Based on the plain language of § 13A-6-
60(1), the list of factors is not exclusive; rather, the totality of the
circumstances must be considered in determining whether there was an
implied threat. What remains the same across both definitions is that
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forcible compulsion may be proved either by showing that the defendant
actually used force2 or by showing that the defendant threatened the use
of force.
Cox's arguments on appeal focus on the element of forcible
compulsion. Cox contends that it is undisputed that he did not use any
force against any of the women and that he did not expressly threaten
any of the women with force. According to Cox, the only issue is whether
the State presented sufficient evidence indicating that he implicitly
threatened the women with force, and he argues that the State did not.
We disagree with Cox's characterization of the evidence as being
undisputed that he did not use force against any of the women, and, as
explained below, we conclude that the State did, in fact, present sufficient
evidence indicating that Cox used force against four of the women. We
also conclude, with respect to one woman, that there was sufficient
evidence of an implied threat of force. However, as to three of the women,
we agree that the State failed to present sufficient evidence indicating
that Cox either used, or threatened to use, force.
2References in this opinion to the general term "force" are
references to the types of force listed in § 13A-6-60(1), e.g., physical force,
violence, confinement, restraint, physical injury, or death.
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A.
Cox first contends that the State failed to present sufficient
evidence of forcible compulsion to sustain his conviction for sexual abuse
in the first degree with respect to A.P., who worked for Cox as a dental
assistant.
A.P. testified that she worked for Cox in 2020, often in the onsite
laboratory preparing prosthetics, such as crowns. According to A.P.,
within a month of starting work, Cox began coming into the lab,
"lean[ing] down and kiss[ing her] on the top of the head" while telling her
she "was his beautiful, talented [A.P.]" (R. 309.) This behavior
progressed, A.P. said, to Cox's calling her into his private office,
commenting on "how beautiful [she] looked" and having her sit in his lap.
(R. 309.) A.P. said that sometimes Cox would simply ask her to sit in his
lap but that "a number" of times Cox "pull[ed her] arm and pull[ed her]
into his lap." (R. 310.) A.P. testified that Cox then began to "slap [her]
butt or grab [her] butt" while she was in the lab or while she was walking
down the hall. (R. 310.) A.P. also testified about two specific incidents
involving Cox. The first incident occurred when A.P. was in a room
sterilizing instruments -- a room that testimony indicated was a "closet"
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(R. 479) and was small enough that someone "walking past" the room
could reach through the doorway and touch the person inside the room.
(R. 635.) A.P. said that Cox came up behind her, "reaching between [her]
legs and rubbing up from the front to the back." (R. 310.) The second
incident, A.P. said, occurred when Cox came to her workstation in the
lab. A.P. testified that Cox came in and asked her for a hug. She kept
her body turned sideways because she "never wanted to face him." (R.
311.) Cox put one arm around her and tried to turn her around to face
him, but when "he could tell that [she] wasn't turning [her] body," he
wrapped his other arm around her and "pressed his private up against
[her] leg that was clearly erect, and rubbed back and forth -- rubbed his
hips back and forth on [her] leg." (R. 311-12.)
Viewing the evidence in a light most favorable to the State, we
conclude that there was sufficient evidence from which the jury could
have reasonably concluded that Cox subjected A.P. to sexual contact by
forcible compulsion. First, Cox used physical force when he, "a number"
of times, gripped A.P.'s arm and pulled her onto his lap while in his
private office, at which point A.P.'s buttocks, an intimate part, were
touching Cox. In A.B.T. v. State, 620 So. 2d 120 (Ala. Crim. App. 1992),
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this Court held that the defendant's gripping the victim's arm constituted
physical force for purposes of forcible compulsion, and in Richards v.
State, 475 So. 2d 893 (Ala. Crim. App. 1985), this Court held that the
defendant's physically manipulating the victim's body constituted
physical force for purposes of forcible compulsion. Also, in S.M.B. v.
State, 348 So. 3d 438 (Ala. Crim. App. 2021), this Court held that the
defendant had used physical force when he placed the sleeping victim's
hand on his penis. Although each of those cases was decided under the
former definition of forcible compulsion, 3 they are nonetheless instructive
3We recognize that the victims in both A.B.T. and Richards were
minor children and that this Court has held that "a different standard
must be applied when ... the victim is a child and not a mature woman."
Lee v. State, 586 So. 2d 264, 266 (Ala. Crim. App. 1991). However, in
neither A.B.T. nor Richards was our finding that the defendant's actions
constituted physical force based on the victims' being children. Moreover,
in S.M.B., this Court ultimately concluded that the evidence was
insufficient to establish forcible compulsion because the defendant had
stopped using physical force when the victim woke up and resisted,
noting that "[t]his Court has held that, when a defendant stops touching
a victim because the victim resists the touching, that original touching
does not subject the victim to sexual contact by forcible compulsion." 438
So. 3d at 451 (citing McGlocklin v. State, 910 So. 2d 154 (Ala. Crim. App.
2005)). In other words, this Court held that there was insufficient
evidence of forcible compulsion because the defendant's use of physical
force did not overcome the victim's resistance. However, under the
current definition of forcible compulsion, the force used by a defendant
does not have to overcome the victim's resistance because the victim is
not required to resist.
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as to what constitutes physical force, a term that remains in the current
definition of forcible compulsion. By gripping A.P.'s arm and pulling her
to his lap, Cox used physical force against A.P.
Second, Cox used physical force and restraint when he wrapped his
arms around A.P. and rubbed his penis against her leg. The legislature
has not defined the term restraint for purposes of forcible compulsion,
but " ' " 'when a term is not defined in a statute, the commonly accepted
definition of the term should be applied.' " ' " Lawrence v. State, 389 So.
3d 1237, 1245 (Ala. Crim. App. 2023) (citations omitted). " '[A]lthough
penal statutes are to be strictly construed, courts are not required to
abandon common sense. Absent any indication to the contrary, the words
must be given their ordinary and normal meaning.' " Ex parte Ankrom,
152 So. 3d 397, 409 (Ala. 2013) (quoting Walker v. State, 428 So. 2d 139,
141 (Ala. Crim. App. 1982)). Restraint is defined as "an act of
restraining" or "the state of being restrained." Merriam-Webster's
Collegiate Dictionary 1063 (11th ed. 2020) Restrain, in turn, is defined
as "to prevent from doing, exhibiting, or expressing something" or "to
limit, restrict, or keep under control." Id. at 1063. In addition, the
legislature defined the term restrain for purposes of the kidnapping
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statutes as "[t]o intentionally or knowingly restrict a person's movements
unlawfully and without consent, so as to interfere substantially with his
liberty by moving him from one place to another, or by confining him
either in the place where the restriction commences or in a place to which
he has been moved." § 13A-6-40(1), Ala. Code 1975. The Commentary to
§ 13A-6-40 notes:
" 'Restrain' is concerned with intentional, unlawful and
nonconsensual removal or confinement of another person so
as to 'interfere substantially with his liberty' or physical
locomotion. It is a broad term covering various factual
situations from the most serious cases down to relatively
minor removals and brief confinements not involving any high
degree of isolation, disappearance or violence."
(Emphasis added.) 4 By wrapping his arms around A.P., Cox used
physical force and restraint that restricted A.P.'s movements, prevented
her from leaving, and interfered with her liberty.
For the above reasons, the evidence was sufficient to sustain Cox's
conviction for sexual abuse in the first degree with respect to A.P.
B.
4See Part I.E. of this opinion, wherein we address the term
confinement.
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Cox next contends that the State failed to present sufficient
evidence of forcible compulsion to sustain his conviction for sexual abuse
in the first degree with respect to S.T., who worked for Cox as a dental
hygienist.
S.T. testified that she began working for Cox around August 2019.
S.T. described her initial interview with Cox as "weird" because he called
her into the office "on a day that the office was closed" and, toward the
end of the interview, Cox asked her: "So are you going to -- I don't get a
kiss or anything? I gave you the job. I don't get a kiss? I picked you. How
many kids do you have? Now your kids are my kids. Do I get a kiss?" (R.
406-08.) S.T. said, however, that she worked for Cox for approximately a
year and a half without incident. After that year and a half, S.T. said,
employees began to leave the dental practice and Cox's behavior changed.
S.T. described five incidents involving Cox that occurred after his
behavior changed.
The first incident occurred when she was walking down a hallway
one day and Cox told her she looked nice in her scrubs and "hit [her] on
the butt." (R. 410.) The second incident occurred sometime later, when
she went to Cox's office to ask him to check on one of her patients. S.T.
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said that Cox asked her to show him something on his computer and that
the door to the office closed behind her. According to S.T., Cox "trapped"
her at his desk and asked: "Do you not like it when I touch you?" (R. 412-
13.) S.T. told Cox that she did not like it and left the office, reporting the
incident to the office manager. The third incident occurred the next day.
S.T. testified that she was with a patient when Cox came into the room,
came up behind her, "took his hand and, like, gripped, like, between [her]
legs with his fingers," including her "private area." (R. 414.) S.T. jumped
and moved away. Later that same day, as Cox was leaving the office, he
told S.T. that he loved her and that he knew she loved him too.
The fourth incident occurred when S.T. spoke with Cox about his
behavior and told him she did not want him to touch her. In response,
Cox told her "that he's the dentist, sometimes he just needs love, he does
hard work, he doesn't see anything wrong with, you know, something
here or there" and that "if you're not into that, that's fine." (R. 416.) As
S.T. began to leave, however, Cox said: "Come on. Please, give me a hug.
Give me a kiss." (R. 416-17.) S.T. did not testify whether she and Cox
hugged or kissed or whether any other sexual contact occurred during
that incident. The fifth incident occurred sometime later when Cox called
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S.T. into his office, "pinned" and "pressed" her "against the door" (R. 418,
437), and "tried to kiss" her. (R. 429.) S.T. did not state that Cox actually
kissed her. Rather, S.T. said that she turned her face away and that she
could feel Cox's facial hair on her face. S.T. fled the office and never
returned to work.
S.T. testified that she did not feel safe continuing to work for Cox
and that she informed Cox via text message that she was quitting and
why. Among other things, S.T. told Cox in the text message that the
workplace had "become scary, awkward and stressful" and that, despite
her telling Cox that she was uncomfortable, he continued with his
behavior. (C. 236.) In response, Cox sent the following text messages to
S.T. the same day she quit, which S.T. did not respond to:
"Please don't [S.T.] It will devastate me. I am very very sorry.
I will never again. I am not downplaying anything. Please
don't leave. I need you. Please for my family[']s sake
everything will be ok."
"Please come in and talk with me this morning[.]"
"I have 3 small children and a wife [S.T.] please have mercy
on me. I am begging you please stay. Please don't ruin my
career."
"Just one chance it will never never happen again!!!"
"I'm sick and throwing up I had no idea that that affected you
that much. I am forever sorry to you [S.T.]"
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(C. 232-34.) S.T. said that all the incidents occurred within a period of
about a week and a half.
Viewing the evidence in a light most favorable to the State, we
conclude that there was sufficient evidence from which the jury could
have reasonably concluded that Cox subjected S.T. to sexual contact by
forcible compulsion, specifically when he came up behind her while she
was tending to a patient and grabbed her between her legs.
There is no question that grabbing a person's sexual or intimate
parts constitutes not only sexual contact but physical force as well.
However, sexual abuse in the first degree requires that the defendant
"[s]ubject[] another person to sexual contact by forcible compulsion." §
13A-6-66(a)(1) (emphasis added). The use of the word "by" clearly
indicates that the force required for forcible compulsion is force beyond
that inherent in the sexual contact itself. In other words, nonconsensual
sexual contact that involves only the force inherent in the sexual contact
itself does not establish forcible compulsion. To hold otherwise would
effectively remove the forcible-compulsion element of sexual abuse in the
first degree. Therefore, although grabbing a person's sexual or intimate
parts, or any other bodily part for that matter, is itself forceful, the State
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was required to prove that Cox used force beyond the sexual contact.
Even viewing the evidence in a light most favorable to the State, S.T.'s
testimony provided no basis from which the jury could have reasonably
concluded that Cox used, or expressly threatened to use, physical force,
violence, confinement, restraint, physical injury, or death beyond the
sexual contact itself when he grabbed between S.T.'s legs. Therefore, we
consider whether the evidence was sufficient to establish the existence of
an implied threat to use physical force, violence, confinement, restraint,
physical injury, or death.
As noted above, in determining whether there is an implied threat,
the factors to be considered include, but are not limited to: the relative
ages and sizes of the victim and the defendant; the mental and physical
conditions of the victim and the defendant; the atmosphere and physical
setting in which the incident took place; whether the defendant was in a
position of authority, domination, or custodial control over the victim;
and whether the victim was under duress. See § 13A-6-60(1). Both Cox
and S.T. were adults and the incident occurred in the workplace during
working hours, but there is no question that Cox, as S.T.'s employer, was
in a position of authority over S.T. Although the record does not reflect
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the sizes of Cox and S.T., the jury was able to observe their respective
sizes during trial. In addition, S.T. testified about two different incidents
during which Cox did use physical force, confinement, and/or restraint
against her -- when Cox "trapped" her at his desk and asked her if she
liked it when he touched her and when Cox "pinned" or "pressed" her
against the door to his office and tried to kiss her. Although neither of
those incidents involved sexual contact, the incident during which Cox
"trapped" S.T. at his desk occurred the day before he grabbed between
her legs, and all the incidents occurred within a period of a week and a
half. In addition, S.T. testified that she did not feel safe working for Cox,
and, in her text message to Cox informing him that she was quitting her
job, she described the workplace as "scary."5
Considering the totality of the circumstances -- including Cox's
position as S.T.'s employer, his use of force against S.T. on two occasions,
his subjecting S.T. to sexual contact on two occasions, S.T.'s testimony
that she felt unsafe working for Cox, and her description of the workplace
as "scary" -- we believe that there was sufficient evidence from which the
5Although fear on the part of the victim is not required under the
current definition of forcible compulsion, it is certainly a relevant factor
to consider in determining whether there was an implied threat.
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jury could have reasonably concluded that, when Cox grabbed S.T.
between her legs only one day after having used force against her to
"trap" her at his desk and she had told him she did not like him touching
her, there was an implied threat from Cox that he would use physical
force, violence, confinement, restraint, physical injury, or death against
S.T.
Therefore, the evidence was sufficient to sustain Cox's conviction
for sexual abuse in the first degree with respect to S.T.
C.
Cox also contends that the State failed to present sufficient
evidence of forcible compulsion to sustain his conviction for sexual abuse
in the first degree with respect to A.J., who worked for Cox as a dental
hygienist and dental assistant.
A.J. testified that she began working for Cox in June 2020 and that
her employment ended toward the end of September 2020. On her first
day of work, A.J. said, Cox called her into his office and gave her "a big
ole hug," telling her how "excited" he was that she was there. (R. 449.)
According to A.J., as they were releasing the hug, Cox "brought [her] back
in really quick, and he slapped [her] on [her] butt three times." (R. 449.)
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A.J. said that the slaps were so hard her "skin popped." (R. 449.) As she
pulled away, A.J. said, Cox asked her to give him a kiss on the cheek and
she refused. A.J. testified that Cox was so close to her that she "could
feel his skin on [her] face." (R. 449.) A.J. said that no further incidents
occurred "[f]or a long time" after that (R. 450), and when asked if she felt
safe continuing to work for Cox, A.J. said "yes and no" because "he hadn't
messed with" her for a long time, but she "was waiting for it to happen
again" and was "on guard." (R. 453.)
A.J. testified that, one day toward the beginning of September 2020,
when she was going to a fast-food restaurant to pick up lunch, she asked
Cox if he wanted her to bring him something. Instead of asking her to
bring something back for him, Cox chose to ride with A.J. During the car
ride, A.J. said, Cox grabbed one of her wrists and began "pulling it
towards the passenger side" of the car. (R. 455.) When A.J. pulled her
wrist away, Cox grabbed it again, slid down in his seat, and said: "Just
touch it one time, [A.J.], please. Just touch my [penis] one time." (R. 459.)
A.J. again pulled her wrist away and reminded Cox that he was married,
that she had a boyfriend, and that he was her boss. She told Cox "to not
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ever ask [her] to touch his [penis] again," and Cox "laughed it off," half-
heartedly apologizing and promising never to do it again. (R. 549.)
The only sexual contact about which A.J. testified was Cox's
slapping her buttocks on her first day of work. Although slapping a
person's sexual or intimate parts is itself forceful, as explained in Part
I.B. of this opinion, to establish forcible compulsion the State was
required to prove that Cox used force beyond that inherent in the sexual
contact itself. A.J. testified only that, as she and Cox were releasing a
hug, Cox "brought [her] back in really quick" and slapped her buttocks.
This limited testimony by A.J. about Cox's actions was not sufficient to
indicate that Cox used force against her. A hug, even if unwanted, does
not rise to the level of physical force, violence, confinement, restraint,
physical injury, or death. Nor was there any evidence presented
indicating that Cox expressly threatened A.J. with the use of such force.
Therefore, we consider whether the evidence was sufficient to establish
the existence of an implied threat of physical force, violence, confinement,
restraint, physical injury, or death by looking at the factors in § 13A-6-
60(1) and the totality of the circumstances.
22
CR-2024-0239
Both Cox and A.J. were adults and the incident occurred in the
workplace during working hours, but there is no question that Cox, as
A.J.'s employer, was in a position of authority over A.J. Although the
record does not reflect the sizes of Cox and A.J., the jury was able to
observe their respective sizes during trial. A.J. testified about a second
incident in which Cox used physical force against her by grabbing her
wrist and pulling it toward him while they were driving to get lunch, but
no sexual contact occurred during that incident and it occurred two to
three months after the incident involving sexual contact. In addition,
unlike S.T., see Part I.B. of this opinion, who expressly stated that she
felt unsafe continuing to work for Cox and described the work
environment as "scary," A.J. testified that she felt both safe and unsafe
continuing to work for Cox, but only because she was waiting for another
incident to occur. Even viewing the evidence in a light most favorable to
the State, considering the totality of the circumstances, we have no choice
but to conclude that the evidence was insufficient to establish the
existence of an implied threat on A.J.'s first day of work that Cox would
use physical force, violence, confinement, restraint, physical injury, or
death against A.J.
23
CR-2024-0239
We reject the State's argument that the "inherently coercive
circumstances present" in an employer-employee relationship are alone
sufficient to establish an implied threat. (State's brief, p. 46.) According
to the State, " '[i]n the light of economic, professional, and institutional
constraints, an employee often feels that no practical choices are
available to her" and " '[h]er decision to submit under these compelling
circumstances should not be upheld by the law as a valid choice.' " (State's
brief, p. 46 (quoting Michal Buchhandler-Raphael, Sexual Abuse of
Power, 21 U. Fla. J.L. & Pub. Pol'y 77, 132 (2010)). Our holding, however,
is not that A.J. made a "valid choice" to submit to Cox's slapping her
buttocks -- she certainly did not -- but that Cox's actions did not rise to
the level of forcible compulsion as that term is defined in § 13A-6-60(1).
The definition of forcible compulsion is clear that the threat, whether
express or implied, must be a threat to use physical force, violence,
confinement, restraint, physical injury, or death. Economic and
professional consequences, such as job loss, are not the equivalent of
physical force, violence, confinement, restraint, physical injury, or death.
Thus, although the fact that an abuser is the victim's employer is
certainly a relevant factor to consider in determining whether there is an
24
CR-2024-0239
implied threat, it is not, by itself, sufficient to establish an implied threat
to use physical force, violence, confinement, restraint, physical injury, or
death.
Although Cox's actions toward A.J. were reprehensible, they do not
rise to the level of the felony offense of sexual abuse in the first degree by
forcible compulsion. Therefore, because the State failed to present
sufficient evidence of forcible compulsion, we must reverse Cox's
conviction for sexual abuse in the first degree with respect to A.J. and
render a judgment in his favor.6
D.
Cox contends that the State failed to present sufficient evidence of
forcible compulsion to sustain his convictions for one count of rape in the
first degree and one count of sexual abuse in the first degree with respect
to C.K., who worked for Cox as a dental assistant.
6The jury was not instructed on any lesser-included offenses;
therefore, this Court does not have the option to order the entry of a
judgment convicting Cox of a lesser offense. Cf. Lucas v. State, 204 So.
3d 929 (Ala. Crim. App. 2016) (finding insufficient evidence to sustain the
defendant's conviction for attempted sodomy in the first degree and
ordering the trial court to enter a judgment on the lesser offense of
attempted sexual misconduct where the jury was instructed on
attempted sexual misconduct).
25
CR-2024-0239
C.K. testified that she first encountered Cox in late July 2020, when
she was a waitress at a local restaurant and Cox was a customer. C.K.
said that Cox "commended [her] on how good of a work ethic [she] had"
and offered her a job at his dental practice. (R. 495.) Despite her having
no experience in the dental field, Cox told her that she would receive on-
the-job training. About a month after she started working for Cox, C.K.
said, Cox began coming into the room used for sterilizing instruments
while she was working there and "rub[bing] his hand across [her] bottom"
or "put[ting] it on [her] hip." (R. 500.)
Later, Cox began calling her into his private office and having her
sit on his lap while going over her patient notes. C.K. said that the door
to Cox's office was always closed and was locked "[a]lmost every time."
(R. 501.) She also said that when she resisted sitting on Cox's lap, Cox
would ignore her, "grab [her] by the waist and place [her] on his leg." (R.
501-02.) Cox would wrap his arm around C.K.'s waist and rest his hand
on her hip, and, on one occasion, Cox reached inside of her scrub shirt
and touched her breast. C.K. testified that she "always let [Cox] know
that [she] was uncomfortable with what he was doing." (R. 502.)
26
CR-2024-0239
C.K. testified that, one time when Cox called her into his office, he
was wearing scrubs and she could immediately see that he had an
erection. According to C.K., Cox shut and locked the door to his office,
pulled his penis out of the scrub pants, and asked C.K. to "touch it," but
C.K. refused. (R. 505.) Cox then covered himself and asked her to go into
his bathroom. C.K. testified that Cox "had [her] by the arm or the hand
and was pulling" her into the bathroom, at which point she asked him
what he was doing. (R. 507.) Once inside the bathroom, C.K. said, Cox
"put his hands on [her] back and bent [her] over the toilet[,] pulled [her]
pants down[,] and started" having sexual intercourse with her. (R. 507.)
C.K. quit her job not long after that incident.
Viewing the evidence in a light most favorable to the State, there
was more than sufficient evidence from which the jury could have
reasonably concluded that Cox subjected C.K. to sexual contact and
engaged in sexual intercourse with her by forcible compulsion. With
respect to the sexual-abuse charge, Cox used physical force when, while
in his private office, he grabbed C.K.'s waist and pulled her to his lap, at
which point C.K.'s buttocks, an intimate part, were touching Cox and, on
one occasion, Cox touched her breast. With respect to the rape charge,
27
CR-2024-0239
Cox clearly used physical force when he grabbed C.K.'s arm or hand,
pulled her into the bathroom, pushed on her back to bend her over the
toilet, and then pulled her pants down before engaging in sexual
intercourse with her. See, e.g., King v. State, 574 So. 2d 921 (Ala. Crim.
App. 1990) (holding that the defendant's pulling the victim's pants down
and pushing her hands away as she tried to pull them back up constituted
physical force). 7
Although Cox argues that C.K. "willingly accompanied" him into
the bathroom and questions "why [C.K.] followed him into a bathroom,"
C.K.'s testimony indicates that C.K. did not follow him or willingly
accompany him to the bathroom. (Cox's brief, p. 25.) Rather, Cox
"pulled" her into the bathroom, forced her to bend over, and pulled down
her pants, all of which constituted the use of physical force. In addition,
Cox questions "why [C.K.] didn't yell or make any kind of sound while
having sex in the bathroom." (Cox's brief, p. 25.) However, C.K. was not
7King was decided under the former definition of forcible
compulsion, and the victim in that case was a child. However, as
explained in Part I.A., of this opinion, decisions under the former
definition of forcible compulsion, even those involving child victims, are
nonetheless instructive as to what constitutes "physical force," a term
that remains in the current definition of forcible compulsion.
28
CR-2024-0239
required to yell or make any sound because, as already explained, the
current definition of forcible compulsion does not require any resistance
on the part of the victim. Because C.K. was not required to yell or resist
in any way, it is irrelevant why she did not.
Therefore, the evidence was sufficient to sustain Cox's convictions
for rape in the first degree and sexual abuse in the first degree with
respect to C.K.
E.
Cox next contends that the State failed to present sufficient
evidence of forcible compulsion to sustain his convictions for one count of
rape in the first degree, two counts of sodomy in the first degree, and one
count of sexual abuse in the first degree with respect to K.H., who worked
for Cox as a dental assistant.
K.H. testified that her initial interview with Cox took place in Cox's
private office with the door closed and that Cox "kept putting his hand
on [her] thigh, and every time he did it, it would last longer." (R. 533.)
Cox hired her and asked her to come to the office the Sunday before her
first day of work so he could show her around more. During that meeting,
K.H. said, Cox convinced her to model a pair of scrub pants for him. K.H.
29
CR-2024-0239
then followed Cox to a nearby store so he could purchase a top for her to
wear with the pants. He then asked her to accompany him to his house,
and she rode in his vehicle to his house, where he had her wash his boat.
K.H. said that, on the way to his house, Cox told her that they "would
have to build a relationship that would be comparable to a husband and
wife" and that it was her "responsibility to make sure that he was happy
and satisfied at all times," both at work and outside of work. (R. 540.)
K.H. testified that on the drive back from his house, Cox grabbed
her hand, squeezed it, and interlaced their fingers. Cox also asked K.H.
to kiss him on the cheek, and, when she refused, he "got his hand and put
it behind [her] head as he was driving and pushed [her] head against his
cheek." (R. 550.) She testified that she eventually kissed his cheek so
that he would release her. K.H. testified that Cox then asked her to rub
his neck and that, when she did not respond, he grabbed her hand and
placed it on the back of his neck. As Cox started rubbing her hand over
his neck, he "started to groan," which K.H. described as "sexual groans."
(R. 551.) After he released her hand, K.H. said, Cox "reached over and
he grabbed [her] right breast, and put his hand in my shirt, and started
massaging it." (R. 551.) When they arrived back where K.H.'s vehicle
30
CR-2024-0239
was parked, K.H. attempted to get out of Cox's vehicle quickly, but Cox
"grabbed [her] and pulled [her] to him and started kissing [her] and put
his tongue in [her] mouth." (R. 552.) He also told K.H. that he loved her.
When she started work the next day, K.H. said, Cox acted "[l]ike
nothing [had] happened." (R. 554.) However, that lasted only a few days.
On Thursday of her first week of work, K.H. noticed that Cox had an
erection while working on a female patient, his erect penis "at face level
with [the] patient." (R. 555.) Cox became aware that K.H. had seen his
erection, and, after finishing with the patient, he ordered K.H. to come to
his private office. Cox led her into his office, shut the door, and told her
that he wanted her to perform oral sex on him. K.H. refused and tried to
leave, but Cox "stuck his arm out and put it on the door so [she] couldn't
open it, and then he locked it." (R. 557.) According to K.H., Cox then "put
his hands on [her] shoulders and pushed [her] down onto [her] knees,"
pulled down his pants, "and kept trying to convince [her] to put his penis
in [her] mouth," but she refused. (R. 557.) Cox "eventually took his
fingers and pried [her] mouth open" and then put his penis in her mouth,
using his fingers to keep her mouth open. (R. 557.) With his other hand,
Cox "held [her] head there so [she] couldn't move." (R. 557.) After a short
31
CR-2024-0239
time, K.H. said, Cox removed his penis from her mouth and ejaculated
into a trash can. Cox then pulled her to a standing position and told her
that he wanted to have sex with her. When K.H. refused, Cox "grabbed
[her] arm and pulled [her] into the bathroom." (R. 558.) He then turned
her around until she was facing the toilet, "bent [her] over," pulled her
pants down, and started having sexual intercourse with her. (R. 559.)
According to K.H., Cox did not talk to her or acknowledge her much after
that incident, although she said that he continued to touch her if she went
into his office.
K.H. testified about another incident that started when Cox called
her into his office at the end of a workday. K.H. said that she initially
stood in the doorway holding the door open, but Cox told her it was
important and to close the door, so she stepped into the office and allowed
the door to close. Cox then "pulled the waistband of his pants down so
that his penis was out, and started telling [K.H.] to give him oral sex
again." (R. 563.) K.H. refused and tried to leave, but Cox "grabbed [her]
arm" and locked the door, "pulled [her] in front of him directly, put his
hands on [her] waist, pulled [her] down to [her] knees again, and started
trying to put his penis in [her] mouth." (R. 563.) K.H. said that she
32
CR-2024-0239
refused to open her mouth but that, "eventually, he opened [her] mouth,
and put his hand on the back of [her] head and forced his penis into [her]
mouth." (R. 563.) K.H. tried to bite Cox, but he told her that he liked
that and asked her to bite him harder, so she "[i]mmediately stopped
everything." (R. 571.) After Cox ejaculated in her mouth, K.H. fled.
Viewing the evidence in a light most favorable to the State, there
was more than sufficient evidence from which the jury could have
reasonably concluded that Cox subjected K.H. to sexual contact and
engaged in sodomy and sexual intercourse with her by forcible
compulsion. With respect to the sexual-abuse charge, Cox clearly used
physical force and/or confinement against K.H. Like the term restraint,
see Part I.A. of this opinion, the legislature has not defined the term
confinement for purposes of forcible compulsion, so we apply "the
commonly accepted definition of the term," Lawrence v. State, 389 So. 3d
at 1245, bearing in mind that "penal statutes are to be strictly construed"
but that "courts are not required to abandon common sense." Ex parte
Ankrom, 152 So. 3d at 409. Confinement is defined as "an act of
confining" or "the state of being confined." Merriam-Webster's Collegiate
33
CR-2024-0239
Dictionary at 261. Confine, in turn, is defined as "to hold within a
location." Id. at 261.
K.H.'s testimony established that, after spending several hours
together at Cox's house the Sunday before she started working for Cox,
Cox drove her back to her vehicle. During that drive, while K.H. was
confined in a moving vehicle and unable to escape, Cox (1) grabbed K.H.'s
head and pulled it toward him until she kissed his cheek, thereby
subjecting her to sexual contact when her lips, an intimate part, touched
his cheek, and (2) grabbed and massaged K.H.'s breast, thereby
subjecting her to sexual contact. In addition, once they arrived where
K.H.'s vehicle was parked, K.H. tried to get out of Cox's vehicle, but Cox
"grabbed [her] and pulled [her] to him and started kissing [her] and put
his tongue in [her] mouth," again subjecting her to sexual contact. (R.
552.) K.H.'s testimony clearly established that Cox used confinement
and/or physical force to subject K.H. to sexual contact.
With respect to the two sodomy charges, there was precious plenty
evidence indicating that Cox used physical force against K.H. During
both incidents, Cox pushed K.H. to her knees, pried her mouth open, and
then held her head in place as he placed his penis in her mouth.
34
CR-2024-0239
Finally, with respect to the rape charge, Cox clearly used physical
force against K.H. when he grabbed her arm, pulled her into the
bathroom, turned her around, bent her over, and pulled her pants down
before engaging in sexual intercourse with her.
Therefore, the evidence was sufficient to sustain Cox's convictions
for one count of rape in the first degree, two counts of sodomy in the first
degree, and one count of sexual abuse in the first degree with respect to
K.H.
F.
Cox contends that the State failed to present sufficient evidence of
forcible compulsion to sustain his conviction for sexual abuse in the first
degree with respect to A.H., a patient of his dental practice.
A.H. testified that, on June 5, 2020, she went to Cox's office to have
two crowns placed on her teeth. After the crowns were placed by an
assistant, Cox laid her back in the chair to the point where her feet were
higher than her head and began to shave the crowns because they felt
too big to A.H. After Cox finished, he " started patting" A .H.'s chest (R.
604), then he "pulled [her] shirt up" (R . 604), "touched [her] breasts" (R.
608), and said: " 'Those are nice. I bet you have a lot of fun with them.' "
35
CR-2024-0239
(R. 604.) According to A.H., Cox then offered to give her his telephone
number. A.H. reported Cox's actions to police the next day.
Viewing the evidence in a light most favorable to the State, there
was sufficient evidence from which the jury could have reasonably
concluded that Cox subjected A.H. to sexual contact by forcible
compulsion, specifically by his use of confinement and/or restraint. Cox
touched A.H.'s breasts when she was undergoing a dental procedure
while deeply reclined in a dental chair to the point where her feet were
above her head. A.H.'s deeply reclined position left her confined to the
chair and restrained because it restricted her movements, rendering her
essentially immobilized, and prevented her from escaping, thereby
interfering with her liberty. Therefore, the evidence was sufficient to
sustain Cox's conviction for sexual abuse in the first degree with respect
to A.H.
G.
Cox also contends that the State failed to present sufficient
evidence of forcible compulsion to sustain his conviction for sexual abuse
in the first degree with respect to B.B., who worked for Cox as a dental
assistant.
36
CR-2024-0239
B.B. testified that, after she completed schooling to become a dental
assistant, Cox hired her. She worked for Cox for only three days, when
she was 18 years old, and she described three incidents involving Cox
during that short time. First, Cox asked her to come to his private office
to talk, sat in a chair facing her, and ensured that "he was touching [her]
in some kind of way" during the conversation. (R. 633.) B.B. said that
Cox "would rub the bottom of [her] leg, he would rub up to the top [of her]
leg, [and] if he wanted to show [her] something on the computer, he would
rub [her] back." (R. 633-34.) In another incident, B.B. said, she was
working in the room where the instruments were sterilized and "he was
walking by [her], and he just grabbed [her] butt and kept walking past"
her. (R. 635.) B.B. said that she went to lunch after that incident and
that, when she returned from lunch visibly upset, Cox asked if she was
sick or if she needed anything, and he touched her "forehead and then he
moved his hand down to [her] throat." (R. 636.). After B.B. left work that
day, she sent a text message to Cox informing him that she was not
comfortable working for him and would not be returning to work. In
response, Cox sent text messages to B.B. asking her not to "jump the gun
37
CR-2024-0239
too fast" and to come talk to him, and he offered to write her a letter of
recommendation. (C. 238.)
B.B. testified to only one incident of sexual contact -- when Cox
"grabbed" her buttocks as he walked past her. As noted in Part I.B. of
this opinion, although grabbing a person's buttocks is itself forceful, to
establish forcible compulsion the State was required to prove that Cox
used force beyond that inherent in the sexual contact itself. There was
simply no evidence presented indicating that Cox used physical force,
violence, confinement, restraint, physical injury, or death beyond the
sexual contact itself, nor was there any evidence presented indicating
that Cox expressly threatened B.B. with the use of such force. Therefore,
we consider whether the evidence was sufficient to establish the
existence of an implied threat of physical force, violence, confinement,
restraint, physical injury, or death by looking at the factors in § 13A-6-
60(1) and the totality of the circumstances.
At the time B.B. worked for Cox, Cox was an adult and much older
than B.B., who was 18 years old and still a minor under Alabama law.
See § 26-1-1(a), Ala. Code 1975 ("Any person in this state, at the arrival
at the age of 19 years, shall be relieved of his or her disabilities of
38
CR-2024-0239
minority.") The record does not reflect the sizes of Cox and B.B., but the
jury was able to observe their respective sizes during trial. In addition,
there is no question that Cox, as B.B.'s employer, was in a position of
authority over B.B. That being said, the incident occurred in the
workplace during working hours, and, although B.B. was in the room
where the instruments were sterilized, she said that Cox grabbed her
buttocks as he was "walking by" and he then continued walking, thus
indicating that Cox did not stop or enter the room. There was no evidence
presented indicating that B.B. was under duress or that Cox ever used
force against B.B. in any context, and, when she quit, B.B. indicated only
that she had been uncomfortable, not that she felt unsafe or scared. Even
viewing the evidence in a light most favorable to the State, considering
the totality of the circumstances, we have no choice but to conclude that
the evidence was insufficient to establish the existence of an implied
threat that Cox would use physical force, violence, confinement,
restraint, physical injury, or death against B.B. when he grabbed her
buttocks as he walked by her.
As with A.J., see Part I.C. of this opinion, although Cox's behavior
toward B.B. was reprehensible, it does not rise to the level of the felony
39
CR-2024-0239
offense of sexual abuse in the first degree by forcible compulsion.
Therefore, because the State failed to present sufficient evidence of
forcible compulsion, we must reverse Cox's conviction for sexual abuse in
the first degree with respect to B.B. and render a judgment in his favor.
See note 6, supra.
H.
Last, Cox contends that the State failed to present sufficient
evidence of forcible compulsion to sustain his conviction for sexual abuse
in the first degree with respect to B.J., who worked for Cox as a dental
assistant.
B.J. testified that she worked for Cox two different times, first in
2012 or 2013, and then again in late 2020. B.J. testified that, during her
second period of employment in 2020, hugs from Cox were commonplace.
According to B.J., the hugs would start as "side hugs" and then turned
into full hugs with the front of their bodies touching. (R. 695.) In
addition, she testified that, one time when she was in Cox's private office
talking about work, B.J. "[t]hought [Cox] was going in for a side hug," but
then "he started to pull [her] down to ... sit on him, and [she] resisted."
(R. 695.) B.J. said that Cox then pulled her harder and she pulled back
40
CR-2024-0239
even harder, telling Cox: "No. We're not doing this." (R. 696.) According
to B.J., Cox was touching her side as he tried to pull her down. B.J.
testified that she left Cox's office after refusing his advances and that,
minutes later, Cox told her that she could leave for the rest of the day.
When asked if, while working for Cox the second time, "his hands
touch[ed her] breasts, behind, anything like that," B.J. said "[m]y behind,
yes." (R. 696.) B.J., however, did not describe the circumstances of that
sexual contact.
While she was off work during the holidays in December 2020, B.J.
sent a text message to Cox telling him that he had put her in an
"awkward position" and that she would not be returning to work. (C.
240.) In response, Cox sent a text message to B.J., stating:
"I didn't think a hug was too much to ask for the sacrifice I
have made for you. Maybe show you cared a little for all the
efforts I have made. Sorry EXTREMELY selfish and
unappreciative on your part. Grow up."
(C. 240.) B.J. responded, stating, in relevant part: "Wow! I don't think
I would ever make a big deal about a hug! But that's not all it was." (C.
240.) Approximately two months later, Cox sent a text message to B.J.
stating, in relevant part: "I'm sorry I made you feel uncomfortable that
41
CR-2024-0239
day. I really think I was just too happy to have you back at the office[.]"
(C. 244.)
The only sexual contact B.J. testified about was when Cox touched
her buttocks. B.J., however, provided no details about that incident.
There was simply no evidence presented indicating that Cox used
physical force, violence, confinement, restraint, physical injury, or death
beyond the sexual contact itself or that Cox expressly threatened B.J.
with the use of such force. Therefore, we consider whether the evidence
was sufficient to establish the existence of an implied threat of physical
force, violence, confinement, restraint, physical injury, or death by
looking at the factors in § 13A-6-60(1) and the totality of the
circumstances.
Both Cox and B.J. were adults and the incident occurred in the
workplace during working hours, but there is no question that Cox, as
B.J.'s employer, was in a position of authority over B.J. Although the
record does not reflect the sizes of Cox and B.J., the jury was able to
observe their respective sizes during trial. In addition, B.J. testified
about an incident in which Cox did use physical force against her by
trying to pull her to his lap while they were in his private office, although
42
CR-2024-0239
no sexual contact occurred during that incident. However, B.J. did not
indicate in her testimony when that incident of force occurred in relation
to Cox's touching her buttocks, and she said that Cox's behavior made
her feel awkward, not unsafe or scared. Even viewing the evidence in a
light most favorable to the State, considering the totality of the
circumstances, we have no choice but to conclude that the evidence was
insufficient to establish the existence of an implied threat that Cox would
use physical force, violence, confinement, restraint, physical injury, or
death against B.J. when he touched her buttocks.
As with A.J. and B.B., see Parts I.C. and I.G. of this opinion,
although Cox's behavior toward B.J. was reprehensible, it does not rise
to the level of the felony offense of sexual abuse in the first degree by
forcible compulsion. Therefore, because the State failed to present
sufficient evidence of forcible compulsion, we must reverse Cox's
conviction and sentence for sexual abuse in the first degree with respect
to B.J. and render a judgment in his favor. See note 6, supra.
II.
43
CR-2024-0239
Cox next contends on appeal that the trial court erred in not
removing juror A.K. from the jury after, he said, she committed
misconduct.
The record reflects that, after a lunch break during the testimony
of the State's first witness, juror D.H. informed the trial court that, before
opening statements, she had overheard another juror state "that she had
already made her mind up, she knew how she was going to vote,"
although the juror did not specifically state how she was going to vote.
(R. 343.) The trial court informed the parties and, after much discussion
and questioning D.H., the court and the parties were able to identify the
juror who allegedly made the statement as juror A.K. Upon further
discussion, the trial court then questioned A.K. about the alleged
statement she made. A.K. said that she did not "remember that exact
statement" (R. 366) and "honestly [did not] recall that" (R. 367), but she
said that, in responding to another juror's statement, she had stated: "I
believe it seemed kind of obvious." (R. 366.) When asked if she could
"keep an open mind and listen to all of the testimony and not form an
opinion about the case until [she] heard all of the evidence and the Court
has charged you," A.K. replied in the affirmative. (R. 370.) She also
44
CR-2024-0239
stated that she had not, in fact, made up her mind about the case. The
trial court left A.K. on the jury.
At no point during the above proceedings did Cox request that juror
A.K. be removed from the jury or object in any manner to the trial court's
handling of the situation. Rather, Cox waited until after he was
convicted and sentenced and then raised a claim of juror misconduct in
his motion for a new trial. "Grounds urged in a motion for a new trial
must ordinarily have been preserved at trial by timely and sufficient
objections." Williams v. State, 710 So. 2d 1276, 1311 (Ala. Crim. App.
1996), aff'd, 710 So. 2d 1350 (Ala. 1997). "Timely objections must be made
to preserve an assignment of error for appellate review, and the objection
should be made as soon as the objectionable ground becomes apparent."
Perkins v. State, 715 So. 2d 888, 894 (Ala. Crim. App. 1997). Because
Cox failed to request that juror A.K. be removed from the jury or
otherwise object to the trial court's actions at the time he was made
aware of juror A.K.'s alleged misconduct, this issue was not properly
preserved for review.
Moreover,
"to allow [the] defendant to complain of error at a later time
would give him the opportunity to be aware of the error, but
45
CR-2024-0239
to remain silent, speculate on a favorable verdict, and in the
event of an unfavorable verdict to obtain reversal on a ground
which defendant deliberately chose not to raise by exception
taken at th e appointed time."
Fuller v. State, 365 So. 2d 1010, 1012 (Ala. Crim. App. 1978). " 'Under
the doctrine of invited error, a defendant cannot by his own voluntary
conduct invite error and then seek to profit thereby.' " Jackson v. State,
620 So. 2d 147, 148 (Ala. Crim. App. 1993) (quoting Phillips v. State, 527
So. 2d 154, 156 (Ala. 1988)). Any error in the trial court's not removing
juror A.K. from the jury was invited by Cox himself and does not entitle
Cox to relief.
III.
Cox also contends that the trial court erred in granting the State's
motion to consolidate for trial the three indictments against him.
As noted above, the indictments in cases no. CC-21-1877 and CC-
21-1878 each contained a single count of sexual abuse in the first degree.
The remaining 13 charges for which Cox was tried, involving 11 different
women, were contained in a single indictment in case no. CC-22-154. In
its motion to consolidate the indictments, the State argued that the
offenses in the three indictments were "of the same or similar character,"
were "based on the same conduct, or [were] otherwise connected in their
46
CR-2024-0239
commission," were "alleged to have been part of a common scheme or
plan," and were "so similarly situated that evidence of ... one case would
be admissible in the trial of the other case." (C. 24.) At the hearing on
the State's motion, Cox objected to consolidating the three indictments,
arguing that consolidation would be "more prejudicial than probative."
(R. 10.) Cox initially requested that all the charges be severed from each
other, but he then stated that he wanted the sexual-abuse charges
severed from the rape and sodomy charges. Cox maintained the
"parad[ing] a bunch of women in front of [the jury] and pil[ing] them all
on to convict him of those two rape[ and sodomy charges] would be
inappropriate." (R. 14.) The trial court granted the State's motion to
consolidate.
On appeal, Cox argues that he suffered actual and compelling
prejudice from the consolidation of the indictments based on the "sheer
number" of victims. (Cox's brief, p. 42.) Cox points to a prospective juror
who indicated during voir dire that the fact that someone has been
arrested and accused of "that many" crimes indicates probable guilt and
to juror A.K.'s statement that "it seemed kind of obvious" as evidence
47
CR-2024-0239
indicating that he was prejudiced by having a single trial involving
multiple charges and victims. (Cox's brief, pp. 41-42.)
Rule 13.3(c), Ala. R. Crim. P., provides, in relevant part:
"If offenses … are charged in separate indictments,
informations, or complaints, the court on its own initiative or
on motion of either party may order that the charges be tried
together … if the offenses … could have been joined in a single
indictment, information, or complaint. Proceedings thereafter
shall be the same as if the prosecution initially were under a
single indictment, information, or complaint. However, the
court shall not order that the offenses … be tried together
without first providing the defendant ... and the prosecutor an
opportunity to be heard."
Rule 13.3(a), Ala. R. Crim. P., provides that:
"Two or more offenses may be joined in an indictment,
information, or complaint, if they:
"(1) Are of the same or similar character; or
"(2) Are based on the same conduct or are
otherwise connected in their commission; or
"(3) Are alleged to have been part of a common
scheme or plan."
" ' " ' "Joinder, and thus consolidation, is appropriate where the crimes are
of similar character, meaning nearly corresponding, resembling in many
respects, or having a general likeness." ' " ' " Hinkle v. State, 86 So. 3d
441, 446 (Ala. Crim. App. 2011) (citations omitted). "Moreover, '[a] trial
48
CR-2024-0239
court is vested with substantial discretion in deciding whether to
consoli date cases, and its decision as to consolidation will be reversed
only for a clear abuse of that discretion.' " Bester v. State, 381 So. 3d 1155,
1 164 (Ala. Crim. App. 2022) (quoting Hinkle, 86 So. 3d at 446). Notably,
this Court "has upheld the consolidation of cases involving rape and
sexual abuse." Bester, 381 So. 3d at 1165 (footnote omitted).
Here, all the offenses in the three indictments were felony sex
offenses that had a common element -- forcible compulsion -- and similar
victims -- either patients or employees of Cox's dental practice. The
offenses were similar in character, and they were alleged to have been
part of a common scheme or plan by Cox to use h i s dental practice to
prey on women in vulnerable positions. More importantly, contrary to
Cox's argument, " '[n]o prejudice results where, as here, the jury could
easily separate the evidence of the separate crimes.' " Bester, 381 So. 3d
at 1166 (quoting Summerlin v. State, 594 So. 2d 235, 236-37 (Ala. Crim.
App. 1991)). As noted above, the jury acquitted Cox of three counts of
sexual abuse in the first degree involving three different women, thus
clearly indicating that it was able to separate the evidence and consider
each charge individually.
49
CR-2024-0239
Therefore, the trial court did not err in granting the State's motion
to consolidate the three indictments.
IV.
Cox contends that the trial court erred in admitting into evidence
"a portion of a text message between [S.T.] and Dr. Cox, without
providing the full conversation." (Cox's brief, p. 43.) Under the doctrine
of completeness, Cox argues, the entire text conversation had to be
admitted and admitting only a portion of that conversation constituted
reversible error.
During S.T.'s testimony, the State introduced into evidence State's
Exhibit 1, a printout of the text messages Cox sent to S.T. after S.T. had
texted him and told him that she was quitting her job. S.T. testified that,
other than the text message she sent quitting her job, the only time she
texted Cox was if she was unable to come to work for whatever reason,
which, she said, rarely happened. S.T. also testified that she had not
deleted any of the text messages she had received from Cox in response
to her message about quitting her job and that she had not replied to any
of them. The exhibit did not include S.T.'s original text sent to Cox when
quitting her job, only Cox's text messages sent in response, although S.T.
50
CR-2024-0239
testified to what she had said in her initial text message. Cox's counsel
objected on the ground that the exhibit was only "a portion of the
recording," stating that if Cox and S.T. "communicated, I want all of the
communication, instead of what was selected by the State." (R. 422.) The
trial court overruled Cox's objection and admitted the exhibit. The State
later recalled S.T. and introduced into evidence State's Exhibit 2, a copy
of the text message S.T. had initially sent to Cox quitting her job. Cox
again objected, stating: "I don't know that that's all the text messages in
-- between them." (R. 489.)
At the time of Cox's trial, Rule 106, Ala. R. Evid., provided that,
"[w]hen a party introduces part of either a writing or recorded statement,
an adverse party may require the introduction at that time of any other
part of the writing or statement that ought in fairness to be considered
contemporaneously with it."8 "By its very terms, the doctrine of
completeness relates only to matters contained in a single conversation."
Dawson v. State, 675 So. 2d 897, 905 (Ala. Crim. App. 1995) (opinion on
8Effective July 15, 2024, Rule 106 was amended to read: "If a party
introduces part of any statement, an adverse party may require the
introduction at that time of any other part of the statement that in
fairness ought to be considered at the same time. The adverse party may
do so over a hearsay objection."
51
CR-2024-0239
application for rehearing), aff'd, 675 So. 2d 905 (Ala. 1996). See also
Johnson v. State, 823 So. 2d 1, 39 (Ala. Crim. App. 2001) ("[T]he doctrine
of completeness does not extend beyond a single conversation.").
To the extent that the trial court allowed, over Cox's objection, the
State to introduce into evidence State's Exhibit 1 by itself without State's
Exhibit 2, that ruling was error because State's Exhibit 1 did not include
the complete conversation between S.T. and Cox. Because the whole of
the conversation was not included in the exhibit, Cox had the right under
Rule 106 to require the admission into evidence of the entire conversation
at the time State's Exhibit 1 was admitted into evidence.
That being said, the trial court's error was essentially cured when
the State recalled S.T. and introduced into evidence State's Exhibit 2, a
copy of the initial message S.T. sent to Cox quitting her job. " The
doctrine of completeness 'serves the purpose of allowing a party to
explain or rebut adverse inferences which might arise from the
fragmentary or incomplete character of the evidence introduced by his
adversary.' " DeBlase v. State, 294 So. 3d 154, 217 (Ala. Crim. App. 2018)
(quoting Ex parte Tucker, 474 So. 2d 134, 135 (Ala. 1985)). By recalling
S.T. and introducing into evidence State's Exhibit 2, the State ultimately
52
CR-2024-0239
satisfied the purpose of the doctrine of completeness and rendered
harmless the error in the admitting State's Exhibit 1. See Rule 45, Ala.
R. App. P. ("No judgment may be reversed or set aside, nor new trial
granted in any civil or criminal case on the ground of misdirection of the
jury, the giving or refusal of special charges or the improper admission
or rejection of evidence, nor for error as to any matter of pleading or
procedure, unless in the opinion of the court to which the appeal is taken
or application is made, after an examination of the entire cause, it should
appear that the error complained of has probably injuriously affected
substantial rights of the parties."). To the extent that Cox alleged at trial,
and posits on appeal, that State's Exhibits 1 and 2 may not be the
complete text exchange between S.T. and Cox when S.T. quit her job, that
argument is belied by the record. S.T.'s testimony makes it clear that the
two exhibits include the entire text exchange between herself and Cox on
the day she quit her job and that the only other text exchanges between
them were part of different conversations.
Therefore, although the trial court erred in admitting into evidence
State's Exhibit 1 by itself, that error was cured and rendered harmless
53
CR-2024-0239
by the subsequent admission of State's Exhibit 2. Therefore, Cox is due
no relief on this claim.
V.
Finally, Cox contends that his consecutive sentences totaling 180
years' imprisonment violate the Eighth Amendment to the United States
Constitution. He argues, as he did in his motion for a new trial, that such
a lengthy term of confinement constitutes cruel and unusual punishment
and is grossly excessive and disproportionate to his crimes. We note that,
because we are reversing three of Cox's convictions for sexual abuse in
the first degree, for which he received sentences of 10 years'
imprisonment each, the total of his sentences is now 150 years'
imprisonment.
Rape in the first degree and sodomy in the first degree are both
Class A felonies, see §§ 13A-6-61(b) and 13A-6-63(b), Ala. Code 1975,
that, at the time of the crimes, 9 were punishable "for life or not more than
99 years or less than 10 years" in prison. Former § 13A-5-6(a)(1), Ala.
Code 1975 (version in effect at the time of the crimes). Sexual abuse in
9Generally, "[a] defendant's sentence is determined by the law in
effect at the time of the commission of the offense." Davis v. State, 571
So. 2d 1287, 1289 (Ala. Crim. App. 1990).
54
CR-2024-0239
the first degree is a Class C felony, see § 13A-6-66(b), Ala. Code 1975,
that, at the time of the crimes, was punishable by "not more than 10 years
or less than 1 year and 1 day" in prison. Former § 13A-5-6(a)(3), Ala.
Code 1975 (version in effect at the time of the crimes). Cox's sentences of
25 years' imprisonment for each of the rape and sodomy convictions and
10 years' imprisonment for each of the sexual-abuse convictions were
within the statutory range of punishment.
"It is well settled that '[w]here a trial judge imposes a
sentence within the statutory range, this Court will not
disturb that sentence on appeal absent a showing of an abuse
of the trial judge's discretion.' Alderman v. State, 615 So. 2d
640, 649 (Ala. Crim. App. 1992). 'The exception to this general
rule is that "the appellate courts may review a sentence,
which, although within the prescribed limitations, is so
dispr oportionate to the offense charged that it constitutes a
violation of a defendant's Eighth Amendment rights." ' Brown
[v. State, 611 So. 2d 1194], 1197 n.6 [(Ala. Crim. App. 1992)],
quoting Ex parte Maddox, 502 So. 2d 786, 789 (Ala. 1986)."
Adams v. State, 815 So. 2d 583, 585 (Ala. Crim. App. 2001).
In determining the proportionality of a sentence, we consider the
gravity and circumstances of the crime, the harshness of the punishment,
the harm caused to the victim or to society, the culpability of the offender,
and the offender's motive. See, e.g., Jackson v. State, [Ms. CR-2023-0170,
June 27, 2025] ___ So. 3d ___, ___ (Ala. Crim. App. 2025), and the cases
55
CR-2024-0239
cited therein. Considering those factors, we have no trouble concluding
that Cox's consecutive sentences totaling 150 years' imprisonment for
multiple felony sex offenses are not so disproportionate as to violate the
Eighth Amendment. See, e.g., Wolfe v. State, [Ms. CR-2023-0871, June
28, 2024] ___ So. 3d ___ (Ala. Crim. App. 2024) (holding that consecutive
sentences totaling 180 years' imprisonment for multiple felony sex
offenses does not violate the Eighth Amendment), and the cases cited
therein.
VI.
Based on the foregoing, we affirm Cox's conviction and sentence in
case no. CC-21-1877 for sexual abuse in the first degree with respect to
A.H.; his conviction and sentence in case no. CC-21-1878 for sexual abuse
in the first degree with respect to S.T.; and his convictions and sentences
in case no. CC-22-154 for one count of rape in the first degree, two counts
of sodomy in the first degree, and one count of sexual abuse in the first
degree with respect to K.H., one count of rape in the first degree and one
count of sexual abuse in the first degree with respect to C.K., and one
count of sexual abuse in the first degree with respect to A.P. We reverse
Cox's convictions and sentences in case no. CC-22-154 for one count of
56
CR-2024-0239
sexual abuse in the first degree with respect to A.J., one count of sexual
abuse in the first degree with respect to B.B., and one count of sexual
abuse in the first degree with respect to B.J. and render judgments on
those counts in Cox's favor.
AFFIRMED IN PART; REVERSED AND JUDGMENT
RENDERED IN PART.
Kellum, J., concurs in the result. Windom, P.J., concurs in part and
dissents in part, with opinion, which Minor, J., joins. Cole, J., concurs in
part and dissents in part, with opinion. Anderson, J., concurs in part,
concurs in the result in part, and dissents in part, with opinion.
57
CR-2024-0239
WINDOM, Presiding Judge, concurring in part and dissenting in part.
I concur with the main opinion in all parts except for Part I.C. As
to that part, I respectfully dissent.
I agree with the main opinion's holding that "[a] hug, even if
unwanted, does not rise to the level of physical force, violence,
confinement, restraint, physical injury, or death." ___ So. 3d at ___. I
disagree, though, that Cox's transgression against A.J. involved a mere
hug. A.J. testified:
"My very first day, he called me in his office, and gave me a
big ole hug, and … when he -- when we were releasing our
hug, he brought me back in really quick, and he slapped me
on the butt three times, and it wasn't, like, (demonstrating) a
little pat. Like, my skin popped."
(R. 448-49.)
Here, the State offered evidence indicating that the hug had
concluded -- A.J. and Joseph Clarence Cox were "releasing" their hug.
Cox then "brought [A.J.] back in really quick [and] slapped [her] on the
butt three times." (R. 449.) I believe Cox's pulling A.J. back in "really
quick" was sufficient evidence for the jury to reasonably conclude that
Cox used physical force against A.J. to facilitate his sexual contact of her.
58
CR-2024-0239
I would affirm Cox's conviction for first-degree sexual abuse against
A.J. Therefore, I respectfully dissent from that portion of the main
opinion.
Minor, J., concurs.
59
CR-2024-0239
COLE, Judge, concurring in part and dissenting in part.
I concur with the main opinion in all parts, except for Part I.A., from
which I respectfully dissent.
60
CR-2024-0239
ANDERSON, Judge, concurring in part, concurring in the result in part,
and dissenting in part.
I concur with the main opinion, with the exception of Part I.A., from
which I dissent, and Parts I.B., I.C., and I.G., with which I concur in the
result. I write specially to address Parts I.A. and I.B. and the difficulties
presented by this case.
Part I.A.
With respect to Joseph Clarence Cox's conviction for first-degree
sexual abuse as to A.P., A.P. testified that, although she never verbally
consented to Cox's behavior, she believed that "probably by me smiling
or laughing or kind of brushing it off … he felt like he could go further
and further and further." (R. 316-17.) During cross-examination, A.P.
admitted that she did not think Cox would attack her or become
"physical" or "violent" with her during their encounters. (R. 335, 338.)
Instead, she was afraid she would lose her job. (R. 338.)
While other parts of A.P.'s testimony established that she did not
consent to Cox's actions, at no point in her testimony did A.P. describe
any threats of violence, use of restraint or confinement, or other
circumstances traditionally constituting forcible compulsion.
Consequently, the main opinion correctly focuses on whether physical
61
CR-2024-0239
"force" was employed against A.P. Part I.A. of the main opinion affirms
Cox's conviction for first-degree sexual abuse against A.P. by finding that
the State's evidence was sufficient to prove that Cox subjected A.P. to
sexual contact by forcible compulsion in two different ways. First, the
main opinion concludes that Cox used "physical force" when he "gripped
A.P.'s arm and pulled her onto his lap …." ___ So. 3d at ___.
In reaching that conclusion, however, the main opinion relies on
cases predating the Legislature's 2019 amendment of § 13A-6-60, Ala.
Code 1975, which removed any requirement that proof of "earnest
resistance" be offered to establish the element of "forcible compulsion."
Thus, in each of the cases the main opinion relies on, this Court was
applying a definition of "forcible compulsion" that required the State to
prove that a defendant employed "[p]hysical force that overcomes earnest
resistance." See, e.g., S.M.B. v. State, 348 So. 3d 438, 450 (Ala. Crim. App.
2021). In light of former § 13A-6-60's language, the precise contours of
what constituted "physical force" did not require exploration because that
term was modified by the subsequent phrase "that overcomes earnest
resistance." In other words, the force employed had to be of such a
character that it was sufficient to overcome the victim's lack of consent
62
CR-2024-0239
and resistance to the perpetrator's actions. Consequently, the focus in
such cases was not on the nature of the "physical force" employed. For
instance, in A.B.T. v. State, 620 So. 2d 120, 122 (Ala. Crim. App. 1992),
the evidence showed that the defendant "gripped" the victim by the arm
and kept her from getting away while he groped her. This Court saw no
need to discuss whether or how that "gripping" amounted to "physical
force," instead concluding simply that "[t]here was a gracious plenty of
evidence that the sexual contact was by forcible compulsion." Id.
Today, though, this Court faces a more difficult task: determining
precisely what the Legislature intended the term "physical force" to
mean, as that term is used in the statute as amended. The difficulty in
this task comes from the fact that when the Legislature amended § 13A-
6-60, it also amended § 13A-6-65 and § 13A-6-66, Ala. Code 1975, which
address, respectively, the misdemeanor offense of sexual misconduct and
the Class C felony of sexual abuse in the first degree. Section 13A-6-65
criminalizes sexual contact that is nonconsensual but, unlike § 13A-6-66,
does not require the element of "forcible compulsion." Logically, then, the
State must prove something more than a defendant's simple physical
action constituting sexual contact in order to elevate an offense from
63
CR-2024-0239
sexual misconduct to sexual abuse. Antonin Scalia & Bryan A. Garner,
Reading Law: Interpretation of Legal Texts 176 (Thomson/West 2012)
("If a provision is susceptible of (1) a meaning that ... deprives another
provision of all independent effect[ ] and (2) another meaning that leaves
both provisions with some independent operation, the latter should be
preferred.")
The main opinion appears to recognize this and attempts to craft a
workable rule by holding -- in Part I.B. -- that "nonconsensual sexual
contact that involves only the force inherent in the sexual contact itself
does not establish forcible compulsion." ___ So. 3d at ___. Unfortunately,
that pronouncement conflicts with the main opinion's conclusion in Part
I.A., and it underscores why the main opinion's reliance on
preamendment cases is misplaced. When Cox pulled A.P. onto his lap,
the physical action that he took -- pulling her onto his lap -- was inherent
in the sexual contact (i.e., that action caused "A.P.'s buttocks, an intimate
part, [to] touch[] Cox"). ___ So. 3d at ___. The main opinion does not
attempt to explain how this action differs from Cox's grabbing S.T.
between her legs – an act discussed in Part I.B. -- which it holds did not
constitute "physical force" for the purpose of showing forcible compulsion.
64
CR-2024-0239
At bottom, I believe the main opinion errs by reading § 13A-6-60(1)
as though the Legislature had used the term "physical action" instead of
"physical force." To be sure, physical action happens every time someone
engages in a "touching" that amounts to "sexual contact" as that latter
term is defined by § 13A-6-60(3). But the Legislature did not define
forcible compulsion as "touching" or "physical action." Instead, it defined
it as requiring physical force, without defining physical force.
As the main opinion correctly points out, " ' " 'when a term is not
defined in a statute, the commonly accepted definition of the term should
be applied.' " ' " Lawrence v. State, 389 So. 3d 1237, 1245 (Ala. Crim. App.
2023) (citations omitted). Consider, then, that among the definitions of
"force" is "violence, compulsion, or constraint exerted upon or against a
person or thing." Merriam-Webster's Collegiate Dictionary 489 (11th ed.
2020). As a verb, force is defined as "to achieve or win by strength in
struggle or violence" and "to press, drive, pass, or effect against resistance
or inertia." Id.
Considering these definitions for what constitutes "physical force,"
I cannot agree that A.P.'s testimony that Cox "would ask me to sit in his
lap or he would pull my arm and pull me into his lap" -- especially when
65
CR-2024-0239
considered in the context of A.P.'s testimony that she was not afraid of
violence or physicality from Cox -- amounted to "physical force" as that
term is used in § 13A-6-60(1)'s definition of "forcible compulsion." While
the State no longer bears any burden of proving that a defendant's use of
physical force overcame a victim's "earnest resistance," the Legislature's
decision to retain the term "physical force" must be given meaningful
effect and must take into account the Legislature's retention of the
criminal offense of sexual misconduct. Ex parte C.M., 411 So. 3d 368, 376
(Ala. Crim. App. 2024) (observing that rules of statutory construction do
not permit an interpretation that leaves a word "meaningless or
superfluous"). Considering the Legislature's retention of the term
"physical force" in conjunction with the terms it added -- i.e., "violence,
confinement, restraint, physical injury, or death" -- a clear indication of
the character and types of physical actions contemplated as forcible
compulsion emerges. In my view, the evidence regarding Cox's pulling
A.P. into his lap does not rise to that level.
Second, the main opinion holds that Cox used physical force
amounting to forcible compulsion when he "wrapped his arms around
A.P. and rubbed his penis against her leg." ___ So. 3d at ___. However,
66
CR-2024-0239
A.P.'s testimony was that Cox rubbed his penis against her during a hug.
There was no testimony that the hug actually "prevent[ed A.P.] from
doing" anything or otherwise kept her "under [Cox's] control." See
Merriam-Webster's Collegiate Dictionary at 1063 (defining "restrain").
Similarly, there was no testimony that Cox's hug was violent or that A.P.
felt restrained by the hug. Nor does the main opinion offer any
explanation as to why Cox's hugging A.P. amounted to "forcible
compulsion" when it holds, with regard to A.J. in Part I.C., that a "hug,
even if unwanted, does not rise to the level of physical force, violence,
confinement, restraint, physical injury, or death." ___ So. 3d at ___.
For these reasons, I would reverse Cox's first-degree sexual abuse
conviction with regard to A.P. However, this does not mean that Cox's
behavior was not criminal, much less that it was not deplorable. As
discussed above, the crime of sexual misconduct criminalizes sexual
contact that is carried out without another's consent. § 13A-6-65 (making
criminal "sexual contact with another person without his or her consent
under circumstances other than those under" first-degree sexual abuse,
second-degree sexual abuse, and sexual abuse of a child under the age of
12).
67
CR-2024-0239
In Lucas v. State, 204 So. 3d 929 (Ala. Crim. App. 2016), this Court
found the evidence insufficient to support a finding that Lucas had
engaged in attempted first-degree sodomy with his victim because no
evidence established the required element of forcible compulsion.
Because the jury in that case had been instructed on the lesser-included
offense of attempted sexual misconduct, however, we remanded the case
with instructions for the trial court to enter a judgment finding Lucas
guilty of that offense. Id. at 938. That procedure is unavailable to the
Court here, however, because the Etowah Circuit Court refused to
instruct the jury on the lesser-included offense of sexual misconduct and
neither the State nor Cox objected to that decision. (R. 674-75, 859); Ex
parte Roberts, 662 So. 2d 229, 232 (Ala. 1995) (holding that remanding
for entry of judgment of conviction on lesser-included offense requires
that "the jury [be] charged on the lesser included offense").
For these reasons, I must respectfully dissent from the main
opinion as to Part I.A.
Part I.B.
With respect to Cox's conviction for sexual abuse in the first degree
as to S.T., I concur in the result reached in the main opinion, but I cannot
68
CR-2024-0239
adopt or accept its reasoning. The main opinion concludes that Cox's
sexual contact with S.T. came about by the use of an "implied threat …
that he would use physical force, violence, confinement, restraint,
physical injury or death against S.T." ___ So. 3d at ___. But under the
reasoning provided in Part I.B. of the main opinion, forcible compulsion
requires evidence that the criminal sexual contact was accomplished by
the implied threat -- that is to say, that it could not have been carried out
but for that threat. Cox's sexual contact with S.T., however, occurred by
surprise, and no threat -- overt or implied -- was necessary to accomplish
it. The main opinion offers no explanation for its change in approach to
the analysis of forcible compulsion, and I cannot agree with its reasoning.
The inconsistency created by the main opinion's treatment of S.T.
provides no answers to the litigants in this case; nor will it provide useful
assistance or instruction to lower courts or practitioners of the law for
use in future cases.
I do agree, however, that sufficient evidence was presented to show
that Cox's sexual contact with S.T. was the result of forcible compulsion.
The question, as I see it, is whether Cox's physical action effectively
compelled S.T. to suffer unwanted sexual contact. As discussed above, the
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CR-2024-0239
definition of "force" includes "compulsion … exerted upon or against a
person." Merriam-Webster's Collegiate Dictionary at 489. "Compel," in
turn, is defined as "to drive or urge forcefully or irresistibly," id. at 253
(emphasis added), thus carrying with it a sense of an action sufficient to
overcome any resistance or lack of consent on the victim's part.
The facts before this Court show that, only the day before Cox
grabbed her, S.T. told Cox in no uncertain terms that she did not consent
to his attempts at sexual contact. The record also shows that, after his
initial advances were rebuffed, Cox deliberately took action to overcome
her refusal to consent by "ambushing" her from behind the following day.
Thus, in this case, the physical action Cox used to accomplish the sexual
contact -- the forceful grab from behind -- was also overtly calculated to
achieve something more than the sexual contact. Indeed, the State's
evidence established that Cox used the element of surprise to make his
actions "irresistible" in the face of S.T.'s previously communicated
withholding of consent. Under the particular circumstances that exist
here, I believe that Cox's physical actions against S.T. equated to physical
force calculated to overcome her ability to further resist his abhorrent
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CR-2024-0239
behavior due to the added element of surprise, and, for that reason, I
concur in the result of the main opinion as to Part I.B. 10
10Not every "surprise grab" constitutes sexual abuse in the first
degree. But the facts and law applicable here distinguish this case from
other cases in which "surprise" was employed by an abuser to give a
"fleeting grope" before a victim could react. See, e.g., Price v. Haney, 562
F. App'x 334, 337 (6th Cir. 2014) (explaining that "a fleeting grope evinces
no showing of compulsion because the element of surprise obviates the
need to overcome a victim's resistance").
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