Younes Essouiri v. State of Alabama (Appeal from Jefferson Circuit Court: CC-19-1562)

Rel: November 8, 2024

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

Alabama Court of Criminal Appeals
OCTOBER TERM, 2024-2025
_________________________

CR-2023-0832
_________________________

Younes Essouiri

v.

State of Alabama

Appeal from Jefferson Circuit Court
(CC-19-1562)

McCOOL, Judge.

Younes Essouiri appeals his convictions for first-degree domestic

violence (first-degree aggravated stalking), see § 13A-6-130, Ala. Code

1975; and second-degree domestic violence (third-degree burglary), see

§ 13A-6-131, Ala. Code 1975. The trial court sentenced Essouiri to 20
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years' imprisonment for his first-degree domestic-violence conviction and

split the sentence, ordering him to serve 3 years' imprisonment to be

followed by 3 years of probation. The trial court sentenced Essouiri to 10

years' imprisonment for his second-degree domestic-violence conviction

and also split that sentence, ordering him to serve 2 years' imprisonment

to be followed by 3 years of probation.

Facts and Procedural History

The State's evidence at trial tended to establish the following facts.

Essouiri and Andrea Rhea Williams married in August 2016 and later

had one son. Williams already had one son when she married Essouiri,

but it does not appear that the older son is Essouiri's child. Essouiri and

Williams's marriage was "rocky" (R. 226) because Essouiri accused

Williams of adultery and "began drinking heavily" (R. 228), and Williams

had to contact the police "on numerous occasions" as a result of Essouiri's

behavior. (Id.) The State also introduced multiple text messages

Essouiri and Williams had exchanged, and some of the messages from

Essouiri were threatening. Specifically, on October 26, 2017, Essouiri

texted Williams while she was at work and told her that he was "going to

fuck [her] up" because she was a "cheater" who was "addicted to men."

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(C. 172.) Williams's reply text indicated that she was "terrified" (C. 173),

and, when asked at trial why she had been terrified, Williams testified:

"Because I didn't know what he was going to do to me." (R. 243.)

Williams also testified as to what occurred when she arrived home from

work on the evening of October 26:

"When I went home that day, [Essouiri] was highly
intoxicated. And I went to pack a diaper bag for my baby and
my older child who -- the baby had spent the night before at
my parents' house because of [Essouiri's] intoxication. And I
got those packed, and I was going to leave.

"I had the diaper bag, purse, phone, and he told me I was
not going to leave, and he grabbed me by the throat and
pushed me down to the floor. He held me on the floor by my
throat. He was trying to get my phone away from me.

"I fought with him. I tried to get him off of me. At that
time he took my baby's diaper bag and my purse. When he
did that, I was able to get away. I ran to the bedroom. I locked
the door. I called 911. I'm screaming. I'm calling 911 and he
fled."

(R. 243-44.) The next day, Williams obtained a protection-from-abuse

order ("PFA order") because she "was terrified of the threats … now that

the abuse had escalated from verbal … to physical." (R. 246.) However,

approximately one week later, Williams filed a motion to dismiss the PFA

order because, according to her, it was "no longer necessary." (C. 393.)

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The Jefferson Circuit Court dismissed the PFA order on November 7,

2017.

On November 9, 2017, Essouiri and Williams had another text-

message conversation, and those messages, according to Williams,

included "the same kind of accusations and verbal abuse" that had been

included in the October 26 text messages. (R. 252.) Around that same

time, Williams "kicked [Essouiri] out" of the couple's apartment (R. 252),

and shortly thereafter she had to contact the police because she returned

to the apartment with her older son and found Essouiri there "very

intoxicated." (R. 253.) According to Williams, Essouiri "was immediately

in [her] face, belligerent," and she testified as follows regarding what

occurred next:

"Q. Do you remember what [Essouiri] was saying?

"A. All of the same things. You know, 'you're a whore, you're
a prostitute, you're a bitch.' It was always the same
things. And so I continued on my way to the bedroom to
get the things for the kids and got them as quickly as I
could. [My older son] and I got to the door. We are
trying to leave. He told me I couldn't leave. I remember
he grabbed me, and I was facing him just on the opposite
side of the door. He was on the inside of the door, and
he started spitting in my face over and over. And then
he started shoving me and shoving me backwards,
backwards, and we're on the second floor and there's a
very low railing, and he was trying to push me over the

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railing. My [older] son started hitting him and
screaming at him. And then I just started telling [my
older son], 'Run, baby. Run to the car. Just run.' And
he -- we ran as fast as we could to the car and got away."

(R. 253-54.)

Following that altercation, Williams "drove straight to the

magistrate's office and pressed charges on the initial assault from

October" and then drove her older son to school. (R. 255.) After taking

her older son to school, Williams drove back past her apartment, and,

according to Williams, Essouiri saw her drive by and "jumped in his car

and started chasing her." (R. 255.) Williams testified that she "continued

driving" but that she "ended up getting stopped because they were

working on the road," at which point Essouiri "jumped out of his car and

… started punching [Williams's] window over and over and over, trying

to get in [her] car." (R. 256.)

On November 15, 2017, Williams obtained another PFA order,

which prohibited Essouiri from having any contact with Williams, and

that order was still in effect at the time of trial. Despite the PFA order,

Williams remained in contact with Essouiri and eventually allowed him

to return to her apartment because "he promised again he would stop

drinking and everything would get better." (R. 259.) However, Williams

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later "kicked [Essouiri] out again" (R. 260), and she told him in February

2018 that she wanted a divorce. On March 20, 2018, Williams obtained,

in addition to the PFA order, "a no-contact order" that also prohibited

Essouiri from contacting her. (R. 266.)

Following the issuance of the no-contact order, Williams began

receiving telephone calls from an "unidentified caller." (R. 267.)

Williams answered one of the initial calls, which had been placed by

Essouiri, but she refused to talk to him. Williams continued to receive

telephone calls from unfamiliar numbers "for a long time" (R. 274), at

least one of which was from Essouiri, and she testified that she would

sometimes receive as many as 50 calls in a single day.

Williams testified that, despite the PFA order and the no-contact

order, Essouiri came to her apartment on June 4, 2018, and she testified

as follows regarding what occurred at that time:

"Q. And what happened when [Essouiri] … g[o]t to your
apartment …?

"A. … I had been at work and … had picked up [our son],
who was now in daycare, headed home, got home, was
carrying [our son]. I started to walk up the apartment
stairs, and I heard tires squealing, and I looked and it
was [Essouiri]. And he stopped the car in the middle of
the drive and just jumped out and started chasing me.

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"Q. What did you do when he started running?

"A. I ran. I ran as fast as I could. I was carrying a baby and
a diaper bag. I had my keys and I had to unlock two
locks. So I was trying to get in as fast as I could,
fumbling with the locks, holding a baby. I had made it
inside the door, and as I closed it, he kicked the door in.
I fought with him to close the door, and he was able to
gain entry into the apartment.

"….

"Q. What did he do when he got into the apartment?

"A. He was just like yelling and screaming and saying
things. But I was screaming, so I don't know what he
was saying.

"Q. At any point did he push you or shove you?

"A. Yes."

(R. 268-69.) Essouiri eventually fled when a neighbor heard Williams

screaming and went to Williams's apartment to confront Essouiri.

Williams testified that her hand "had been slammed in the door

when [she] was trying to prevent [Essouiri] from getting in" (R. 273), and

the State presented the jury with photographs of Williams that had been

taken shortly after the June 4, 2018, altercation. Those photographs

show "a mark on [Williams's] neck and [her] chest" and "a mark on [her]

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arm" (R. 271) and show that her hand was "swollen and red from being

slammed in the door." (R. 274.)

On an unidentified date following the June 4, 2018, altercation,

Williams found that "all four tires [on her car] had been slashed from the

side." (R. 278.) Williams subsequently installed a camera on the exterior

of her apartment, and, on June 27, 2018, that camera recorded a video of

someone "slash[ing] [Williams's] tires again." (R. 279.) The State

presented the jury with that video, and, according to Williams, Essouiri

is the person who is slashing her tires in the video.

During the charging conference, the State argued that, "under

[§ 13A-6-130] and [§ 13A-6-131], there are sentence enhancements that

could apply that would require a special verdict form." (R. 369.)

Specifically, the State argued that those statutes both provide that

"the minimum term of imprisonment … shall be double
without consideration of probation, parole, good time, credits,
or any reduction in time if either of the following occurs: One,
a defendant willfully violates a [PFA] order issued by a court
of competent jurisdiction …; and, two, the offense was
committed in the presence of a child under the age of 14 years
at the time of the offense who is the victim's child or stepchild,
the defendant's child or stepchild, or who is a child residing in
or visiting the household of the victim or defendant."

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(R. 370.) Thus, according to the State, if the jury convicted Essouiri of

the charged offenses, the jury would then need to make special findings

of fact as to whether those circumstances existed.

The trial court accepted the State's arguments, and, after

instructing the jury on the elements of first-degree domestic violence, the

court explained to the jury that, if it found Essouiri guilty of that offense,

it must then determine whether the State had proven that he had

committed the offense "while in the presence of a child." (R. 444.) With

respect to the second-degree domestic-violence charge, the trial court

likewise instructed the jury on the elements of the offense and then

explained to the jury that, if it found Essouiri guilty of that offense, it

must then determine whether the State had proven that he had

committed the offense "in the presence of a child" and whether the State

had proven that he "knew that he was violating the conditions of the

[PFA] order." (R. 436.) The trial court also provided the jury with special-

verdict forms that were consistent with its instructions. (Supp. C. 48-49,

110.)

The jury found Essouiri guilty of first-degree domestic violence

(first-degree aggravated stalking) and second-degree domestic violence

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(third-degree burglary). The jury also found that Essouiri had committed

the first-degree domestic-violence offense in the presence of a child and

that he had committed the second-degree domestic-violence offense in the

presence of a child and in violation of a PFA order. (Supp. C. 48-49, 110.)

At the beginning of the sentencing hearing, the State informed the

trial court that "it appears that the presence-of-a-child element was not

in place at the time [Essouiri's offenses were] actually committed as

opposed to actually being heard by the jury." (R. 486.) The State argued,

though, that "the violation-of-a-[PFA]-order aggravator … was found.

And what that does is it doubles the minimum sentence." (Id.) Thus,

according to the State, because the jury found that Essouiri had violated

a PFA order, the minimum sentence for his first-degree domestic-violence

conviction, which is a Class A felony, was 20 years' imprisonment, and

the minimum sentence for his second-degree domestic-violence

conviction, which is a Class B felony, was 4 years' imprisonment. (R.

487.) Defense counsel did not dispute the State's argument regarding the

minimum sentences and, in fact, stated that Essouiri "would have no

problem with" the trial court imposing the minimum sentences (R. 491),

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which are what the State requested, but counsel asked that the court

consider splitting the sentences, which, as noted, the court agreed to do.

Discussion

I.

Essouiri first argues that "[t]he sufficiency and weight of the

evidence do not establish that [he] committed" first-degree domestic

violence (first-degree aggravated stalking) or second-degree domestic

violence (third-degree burglary). (Essouiri's brief, p. 6.)

" ' "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
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

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submission of an issue for decision [by] the jury.' Ex parte
Bankston, 358 So. 2d 1040, 1042 (Ala. 1978)."

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

"A person commits the crime of domestic violence in the first degree

if the person commits the crime of … aggravated stalking pursuant to

Section 13A-6-91[, Ala. Code 1975,] … and the victim is a current or

former spouse." § 13A-6-130(a)(1). Section 13A-6-91(a), Ala. Code 1975,

states: "A person who violates the provisions of Section 13A-6-90(a)[, Ala.

Code 1975,] and whose conduct in doing so also violates any court order

or injunction is guilty of the crime of aggravated stalking in the first

degree." Section 13A-6-90(a), Ala. Code 1975, states: "A person who

intentionally and repeatedly harasses another person and who makes a

threat, either express or implied, with the intent to place that person in

reasonable fear of death or serious bodily harm is guilty of the crime of

stalking in the first degree."

"A person commits the crime of domestic violence in the second

degree if the person commits … the crime of burglary in the … third

degree pursuant to Section[ ] … 13A-7-7[, Ala. Code 1975,] … and the

victim is a current of former spouse." § 13A-6-131(a)(1). Section 13A-7-

7(a)(1), Ala. Code 1975, states: "A person commits the crime of burglary

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in the third degree if … [h]e or she knowingly enters or remains

unlawfully in a dwelling with the intent to commit a crime therein."

In support of this claim, Essouiri makes the following argument:

"In this case, when viewing the evidence in the light
most favorable to the prosecution, a rational finder of fact
could not have found [Essouiri] guilty beyond a reasonable
doubt of these charges, and the trial judge could not have
reasonably concluded that [Essouiri] committed these crimes.
PFAs were withdrawn in this case and [Essouiri] was living
in the home with [Williams's] permission. Further, [Williams]
alleged that [Essouiri] was calling her from unknown or
blocked numbers, but there is no way to prove that such calls
were actually from [Essouiri]. She also claimed that
[Essouiri] slashed the tires on her car. However, [Essouiri] is
not identifiable from the video camera footage that was
produced."

(Essouiri's brief, p. 8.)

In this case, it is undisputed that Essouiri and Williams were

married at the time of the alleged offenses, which triggers the domestic-

violence statutes. Thus, the dispositive questions for the jury were

whether Essouiri committed first-degree aggravated stalking and third-

degree burglary. That said, when considered in a light most favorable to

the State, the evidence indicated that, during the time that two different

court orders prohibited Essouiri from contacting Williams, he repeatedly

telephoned her from numbers that were not familiar to her; that he went

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to her apartment and forced his way into the apartment, causing her

physical injuries; and that he slashed the tires on her car. Those facts

were sufficient to prove that Essouiri, in violation of a court order,

intentionally and repeatedly harassed Williams and that he either

expressly or implicitly threatened her with the intent to place her in

reasonable fear of death or serious bodily harm, which was sufficient to

prove the offense of first-degree aggravated stalking. Those facts were

also sufficient to prove that Essouiri unlawfully entered Williams's

apartment with the intent to commit a crime therein (namely assault),

which was sufficient to prove the offense of third-degree burglary. Thus,

the State's evidence was sufficient to sustain Essouiri's convictions for

first-degree domestic violence (first-degree aggravated stalking) and

second-degree domestic violence (third-degree burglary).

The arguments that Essouiri has raised on appeal, quoted above,

are applicable to his weight-of-the-evidence claim, not his sufficiency-of-

the-evidence claim. However, Essouiri failed to preserve his weight-of-

the-evidence claim for appellate review because he did not raise that

claim in a motion for a new trial. Adams v. State, 336 So. 3d 673, 686

(Ala. Crim. App. 2020). Thus, we will not consider that claim.

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II.

Essouiri next argues that the trial court erroneously instructed the

jury with respect to the second-degree domestic-violence charge.

Specifically, Essouiri argues that the version of § 13A-6-131 in effect at

the time of his offense did not make it a consideration whether "the

incident occurr[ed] in the presence of [a] child." (Essouiri's brief, p. 9.)

Thus, according to Essouiri, by instructing the jury to consider whether

he had committed that offense in the presence of a child, the trial court

violated the ex post facto clause of the United States Constitution. See

U.S. Const. Art. I, § 10. Essouiri also argues that the jury's finding that

he had committed that offense in the presence of a child served to

improperly "subject[ ] him to a higher sentencing range, due to doubling

his sentence." (Essouiri's brief, pp. 13-14.)

However, Essouiri did not object to the trial court's jury instructions

and did not object to his sentences, which we note are legal sentences.1

1Essouiri was sentenced to 20 years' imprisonment for his first-
degree domestic-violence conviction, and first-degree domestic violence is
a Class A felony, which carries a sentence of "life or not more than 99
years or less than 10 years." § 13A-5-6(a)(1), Ala. Code 1975. Essouiri
was sentenced to 10 years' imprisonment for his second-degree domestic-
violence conviction, and second-degree domestic violence is a Class B
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In fact, Essouiri agreed with the State's sentencing recommendations

and asked only that his sentences be split, which the trial court agreed

to do. Thus, these arguments were not preserved for appellate review

and therefore will not be considered. See Harrison v. State, 203 So. 3d

126, 134 (Ala. Crim. App. 2015) ("Because Harrison failed to object to the

trial court's jury instructions, his arguments are not preserved for

appellate review."); Crosslin v. State, 540 So. 2d 98, 98 (Ala. Crim. App.

1988) ("A violation of the ex post facto clause may not be raised for the

first time on appeal."); and Hale v. State, 848 So. 2d 224, 233 (Ala. 2002)

(holding that the defendant had waived his arguments regarding the

application of sentencing enhancements by not raising the arguments at

trial).

We acknowledge Essouiri's suggestion that we should review these

arguments for plain error. However, this Court has repeatedly explained

that plain-error review is not applicable in cases that do not involve the

death penalty. See, e.g., Pendleton v. State, 208 So. 3d 45, 48 (Ala. Crim.

App. 2015).

felony, which carries a sentence of "not more than 20 years or less than
two years." § 13A-5-6(a)(2), Ala. Code 1975.
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Conclusion

Essouiri has not provided this Court with any basis for reversing

the trial court's judgment. Thus, the judgment is affirmed.

AFFIRMED.

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

J., concurs specially, with opinion.

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McCOOL, Judge, concurring specially.

I authored the Court's opinion and fully concur in its analysis. I

write specially because it is evident that the parties were confused

regarding the sentencing aspects of § 13A-6-130, Ala. Code 1975, and

§ 13A-6-131, Ala. Code 1975, and I hope to clarify those aspects of the

statutes for future reference.

Currently, § 13A-6-130 states, in relevant part:

"(b) Domestic violence in the first degree is a Class A
felony, except that the defendant shall serve a minimum term
of imprisonment of one year without consideration of
probation, parole, good time credits, or any other reduction in
time for any second or subsequent conviction under this
subsection.

"(c) The minimum term of imprisonment imposed under
subsection (b) shall be double without consideration of
probation, parole, good time credits, or any reduction in time
if either of the following occurs:

"(1) A defendant willfully violates a
protection order issued by a court of competent
jurisdiction and in the process of violating the
order commits domestic violence in the first
degree.

"(2) The offense was committed in the
presence of a child under the age of 14 years at the
time of the offense, who is the victim's child or
step-child, the defendant's child or step-child, or
who is a child residing in or visiting the household
of the victim or defendant."

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(Emphasis added.)

Similarly, § 13A-6-131 currently states, in relevant part:

"(b) Domestic violence in the second degree is a Class B
felony, except the defendant shall serve a minimum term of
imprisonment of six months without consideration of
probation, parole, good time credits, or any reduction in time
for any second or subsequent conviction under this subsection.

"(c) The minimum term of imprisonment imposed under
subsection (b) shall be double without consideration of
probation, parole, good time credits, or any reduction in time
if either of the following applies:

"(1) A defendant willfully violates a
protection order issued by a court of competent
jurisdiction and in the process of violating the
order commits domestic violence in the second
degree.

"(2) The offense was committed in the
presence of a child under the age of 14 years at the
time of the offense, who is the victim's child or
step-child, the defendant's child or step-child, or
who is a child residing in or visiting the household
of the victim or defendant."

(Emphasis added.)

At the sentencing hearing, the State argued that, because the jury

found that Essouiri had committed his offenses in violation of a

protection-from-abuse order, the minimum sentences that could be

imposed for his convictions had to be doubled pursuant to § 13A-6-130(c)

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and § 13A-6-131(c). Thus, according to the State, the minimum sentence

for Essouiri's first-degree domestic-violence conviction was 20 years'

imprisonment, given that a Class A felony normally carries a minimum

sentence of 10 years' imprisonment. See § 13A-5-6(a)(1), Ala. Code 1975.

Likewise, the State argued that the minimum sentence for Essouiri's

second-degree domestic-violence conviction was four years'

imprisonment, given that a Class B felony normally carries a minimum

sentence of two years' imprisonment. See § 13A-5-6(a)(2), Ala. Code 1975.

Essouiri agreed with the State's arguments regarding the minimum

sentences and asked only that the trial court consider splitting his

sentences, which the court agreed to do.

There are two problems with the parties' understanding of the

sentencing aspects of § 13A-6-130 and § 13A-6-131. First, the parties

believed that the "doubling" provisions of § 13A-6-130(c) and § 13A-6-

131(c) mean that, when a defendant is convicted of those offenses, the

minimum sentences found in § 13A-5-6 must be doubled. However,

§ 13A-6-130(c) and § 13A-6-131(c) expressly state that it is the minimum

terms of imprisonment found in subsection (b) of those statutes that must

be doubled in certain circumstances. Thus, because § 13A-6-130(b)

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provides for a minimum term of imprisonment of 1 year, it means that, if

§ 13A-6-130(c) is applicable, then the minimum term of imprisonment,

i.e., the minimum amount of time that the defendant must serve in

prison, will be 2 years, but the minimum sentence that may be imposed

for that Class A felony remains 10 years. Likewise, because § 13A-6-

131(b) provides for a minimum term of imprisonment of 6 months, it

means that, if § 13A-6-131(c) is applicable, then the minimum amount of

time that the defendant must serve in prison will be 12 months, but the

minimum sentence that may be imposed for that Class B felony remains

2 years.

That brings me to the second problem with the parties'

understanding, which is that the minimum terms of imprisonment found

in § 13A-6-130(b) and § 13A-6-131(b) were not applicable in this case.

Both § 13A-6-130(b) and § 13A-6-131(b) expressly state that the

minimum terms of imprisonment found therein apply only when the

defendant has a previous conviction for violating those statutes. I find

no indication in the record that Essouiri has any prior domestic-violence

convictions; in fact, defense counsel stated at the sentencing hearing that

Essouiri has no prior felony convictions of any kind, and the State did not

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dispute that contention. Thus, there were no minimum terms of

imprisonment that the trial court was required to impose in this case,

much less double.

All that being said, this Court has correctly determined that,

although the parties misinterpreted the sentencing aspects of § 13A-6-

130 and § 13A-6-131, Essouiri's sentence are nevertheless legal because

they fall within the sentencing ranges found in § 13A-5-6 and were

properly split pursuant to § 15-18-8, Ala. Code 1975. Thus, I agree with

the Court's conclusion that Essouiri is not entitled to relief from his

sentences because the arguments he has raised on appeal were not

preserved for appellate review.

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