Charles Edward Colburn v. State of Alabama

Rel: May 5, 2023

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

Alabama Court of Criminal Appeals
OCTOBER TERM, 2022-2023
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CR-2022-0721
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Charles Edward Colburn

v.

State of Alabama

Appeal from Montgomery Circuit Court
(CC-19-154)

MINOR, Judge.

A jury convicted Charles Edward Colburn of two counts of first-

degree rape, see § 13A-6-61, Ala. Code 1975, and two counts of sexual

abuse of a child less than 12 years old, see § 13A-6-69.1, Ala. Code 1975,

and the circuit court sentenced him, as a habitual felony offender, to life
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imprisonment without the possibility of parole for each conviction. We

consider the following issues: (1) whether the circuit court correctly

instructed the jury on election and unanimity; (2) whether the circuit

court correctly denied Colburn's motions for a mistrial; (3) whether the

circuit court correctly refused to instruct the jury that "Colburn did not

have an opportunity to cross-examine T.M. or [J.W.] when the child

protect videos were played"; (4) whether "[t]he cumulative effect of the

errors in this case require reversal"; (5) whether Colburn's life-

imprisonment-without-the-possibility-of-parole sentences for his

convictions of sexual abuse of a child less than 12 years old are illegal;

and (6) whether the circuit court should have imposed periods of post-

release supervision on Colburn's life-imprisonment-without-the-

possibility-of-parole sentences for his first-degree-rape convictions. We

affirm Colburn's convictions and sentences for first-degree rape. We also

affirm Colburn's convictions for two counts of sexual abuse of a child less

than 12 years old, but we remand this case to the circuit court for that

court to resentence Colburn on those convictions.

FACTS

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Because Colburn does not challenge the sufficiency of the evidence,

only a brief recitation of the facts is necessary. Between 2017 and 2018,

the victims J.W. and T.M., who were both under the age of 12 years old

at the time, visited J.W.'s cousin's house to play and have sleepovers.

J.W.'s cousin lived with her father, Colburn, in Montgomery.

J.W., who was 12 at the time of the trial, testified that Colburn got

"on top of [her], [and] put his penis inside of [her]" and that this happened

"[m]ore than once." (R. 99-101, 109.) J.W. also testified that Colburn

"touched [her] boobs." (R. 101.) Colburn told J.W. not to tell or "[h]e would

get in trouble." (R. 102.) J.W. told no one about the abuse at first

"[b]ecause [she] was scared" and "thought [she] was going to get in

trouble" if she told. (R. 103.)

T.M., who was 15 at the time of trial, testified that when she was

10 or 11 years old, Colburn touched her "chest, [her] private parts, [her]

back private parts," and inside her clothes. (R. 122.) T.M. testified that

he "put his private parts inside of [her]" and would say, "I like it." (R. 123,

133-34.) T.M. testified that this happened "[e]very weekend" except on

the weekends that J.W. was there. (R. 123-24.) T.M. testified that

Colburn would give her money on the days after the abuse and told her

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it was "[f]or what [she] did last night." (R. 125, 138-39, 141.) T.M. testified

that Colburn put lotion on himself and T.M.'s "private part." (R. 126, 134.)

T.M. testified that she did not disclose the abuse at first because Colburn

"said he would do something to [her]" and he told T.M. that he "had a

knife." (R. 129.) T.M. testified that she stopped going to Colburn's house

after she told her mother about the sexual abuse.

Kirstin Byrd, a forensic interviewer at Child Protect, a children's

advocacy center, interviewed both J.W. and T.M. 1 During the interviews,

both J.W. and T.M. talked about Colburn "touching and groping their

breasts, the vagina and anus, then they both gave specific incidents of

what took place." (R. 279.) J.W. discussed how Colburn "pulled her

clothes down, how he put grease on his penis, how he tried to insert [it]

in to her." (R. 279.) T.M. also discussed Colburn "groping her vagina,

breasts and anus" and mentioned a "specific incident" of groping and

sexual assault. (R. 280.)

Colburn did not testify on his own behalf, but he did give an

interview to police, which the State put in evidence. Colburn denied the

1Recordings of the interviews were admitted and played at trial. See
State's Exhibits 3 and 4.
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allegations and stated that he thought that his ex-wife might have told

the girls to make the allegations because he had been awarded full

custody of their daughter.

As noted, the jury found Colburn guilty of two counts of first-degree

rape and two counts of sexual abuse of a child less than 12 years old.

Colburn timely appealed.

I. UNANIMITY INSTRUCTION

Colburn argues that the circuit court incorrectly instructed the jury

about "election and unanimity." (Colburn's brief, p. 18.) Colburn argues

that the circuit court did not instruct the jury that it must unanimously

find that he committed all the instances of sexual abuse against J.W. and

T.M. Colburn also argues that the circuit court's instruction was

erroneous because it did not refer to rape.

During a discussion about jury charges, the circuit court noted that

Colburn "is asking that because I'm not making the State elect a specific

incident … that they must unanimously agree that the same act was

committed or [that] all of the acts were committed." (R. 343-44.) The

circuit court then suggested the following instruction: "[Y]ou've had an

opportunity to hear testimony from the witness stand, you've heard from

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a number of witnesses, evidence has been admitted. You all must

unanimously agree that a specific incident of sexual abuse occurred." (R.

349.) Colburn again objected, asserting that the court had to instruct the

jury that it must unanimously agree that all the alleged incidents

occurred. Later, during the jury charge, the circuit court instructed as

follows: "[The verdict] must be unanimous. And as to the specific charge

of sexual abuse, you must all agree unanimously that a specific incident

of sexual abuse occurred. Okay. That has to be a unanimous decision."

(R. 362-63.) Colburn renewed his objection.

Colburn's indictments did not list specific instances of sexual abuse.

"In R.A.S. [v. State, 718 So. 2d 117 (Ala. 1998)], the
Alabama Supreme Court held:

" 'In cases, such as this one, that involve both
generic and specific evidence, where evidence of
multiple culpable acts is adduced to prove a single
charged offense, jury unanimity must be
protected. Therefore, in such a case, the defendant
is entitled either to have the State elect the single
act upon which it is relying for a conviction or to
have the court give a specific unanimity
instruction. If the State chooses not to elect the
specific act, the trial court must instruct the jury
that all 12 jurors must agree that the same
underlying criminal act has been proved beyond a
reasonable doubt, thereby assuring a unanimous
verdict on one criminal act. Cf. State v. Petrich,
101 Wash. 2d 566, 571, 683 P.2d 173, 178 (1984)

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(where, in a factually similar case, the Washington
Supreme Court required either that the State
make an election or that the trial judge provide an
unanimity instruction to the jury). See also, People
v. Aldrich, 849 P.2d 821, 825 (Colo. App. 1992)
(where the court held that the defendant's right to
a unanimous jury was ensured because, (1)
"although the trial court denied the defendant's
pre-trial motion to compel an election, at the close
of the trial, the trial court did compel the
prosecutor to elect the specific incidents of conduct
upon which it relied," (2) "the jury ultimately was
instructed as to the specific incidents upon which
the charges were based," and (3) the jury "was also
given a unanimity instruction" (emphasis
omitted)).'

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

Williams v. State, [Ms. CR-2022-0543, Feb. 10, 2023] ___ So. 3d ___, ___

(Ala. Crim. App. 2023).

J.W. and T.M. both testified that they often visited J.W.'s uncle

Colburn's house and that while there, Colburn sexually abused them.

J.W. testified that Colburn raped her "[m]ore than once" and "touched

[her] boobs." T.M. testified that Colburn raped her "[e]very weekend"

except on the weekends that J.W. was there. Considering that evidence,

the circuit court instructed the jury: "[The verdict] must be unanimous.

And as to the specific charge of sexual abuse, you must all agree

unanimously that a specific incident of sexual abuse occurred. Okay.

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That has to be a unanimous decision." (R. 362-63.) The State concedes

that unanimity instruction was required, but it argues that the circuit

court's instruction was sufficient. (State's brief, pp. 13-15.) Under the

circumstances, we question whether this unanimity instruction was

sufficient. See, e.g., Shouldis v. State, 38 So. 3d 753, 755, 761 (Ala. Crim.

App. 2008) (holding that a victim's generic testimony involving a resident

abuser required a "unanimity instruction inform[ing] the jury that each

juror must determine that 'all' the alleged incidents of sexual abuse

occurred").

Regardless whether the instruction was sufficient, however,

Colburn has no right to relief. As this Court held in R.L.G. v. State, 712

So. 2d 348, 368-69 (Ala. Crim. App. 1997):

" '[S]ome cases found harmless any error in failing either to
select specific offenses or [to] give a unanimity instruction, if
the record indicated the jury resolved the basic credibility
dispute against defendant and would have convicted the
defendant of any of the various offenses shown by the evidence
to have been committed.' [People v. Jones,] 51 Cal. 3d [294] at
307, 270 Cal. Rptr. [611] at 617, 792 P.2d [643] at 649 [(1990)]
(emphasis in original; citing People v. Moore, 211 Cal. App. 3d
1400, 1415–16, 260 Cal. Rptr. 134 (1989); People v. Winkle,
206 Cal. App. 3d at 828–30, 253 Cal. Rptr. 726; People v.
Schultz, 192 Cal. App. 3d 535, 539–40, 237 Cal. Rptr. 513
(1987); People v. Deletto, 147 Cal. App. 3d 458, 466, 470–73 &
n. 10, 195 Cal. Rptr. 233 (1983), cert. denied, 466 U.S. 952,
104 S. Ct. 2156, 80 L. Ed. 2d 542 (1984)). For example, in

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Winkle, the victim testified that the defendant, her uncle, had
molested her regularly each week; the prosecution made no
election and no unanimity instruction was given. The court
concluded that no prejudice resulted. Because the defendant
made only a weak attempt to assert an alibi defense, the
ultimate question for the jury was the defendant's credibility
and the verdict necessarily implied that the jury unanimously
believed the victim.

"….

"As we have already noted, the present case hinged
solely on credibility, i.e., the defense was designed to show
that none of the incidents occurred. There was absolutely no
rational basis by which the jury could have found that the
appellant committed one of the incidents but not the others.
Any juror believing that one incident took place would have
unquestionably believed that all the incidents took place.
Thus, we can say that no rational juror could have had a
reasonable doubt as to any of the incidents alleged. By
returning guilty verdicts, the jurors must necessarily have
unanimously rejected the appellant's defense and, by
believing the victim, unanimously found that all the incidents
occurred. We must conclude that, under these circumstances,
the jury in fact unanimously agreed on the act forming the
basis of the verdicts. Moreover, the appellant's rights to notice
of the charges against him, to the opportunity to formulate a
defense, and to be convicted only upon sufficient proof were
not injuriously affected. We conclude to a certainty that, upon
the peculiar circumstances of this case, the trial court's failure
to give a specific unanimity instruction, necessitated by the
prosecution's inability to elect, was harmless error. Compare
Ex parte Curry, 471 So. 2d 476, 479 (Ala. 1984) (in a case not
addressing an election issue, where the jury was not
instructed generally that it must reach a unanimous verdict
in order to convict or acquit, the court stated that 'the
unanimous-verdict is so fundamental to the rights of the
defendant that an omission to charge on that requirement

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must necessarily be prejudicial' because 'one member of the
jury could [have] alter [ed] the ultimate verdict had they been
instructed')."

Even if the circuit court's instruction was insufficient, that error

was harmless. "[T]he jurors must necessarily have unanimously rejected

[Colburn's] defense and, by believing [J.W. and T.M.], unanimously found

that all the incidents occurred." Id. at 369. Thus, Colburn is due no relief

on this issue.

II. MOTIONS FOR A MISTRIAL

Colburn argues that the circuit court erred by denying his two

motions for a mistrial. Colburn made the motions following these

instances: (1) testimony from an investigator that Colburn had blown

marijuana smoke in his daughter's face; and (2) the trial judge's alleged

emotional reaction to the videos depicting J.W.'s and T.M.'s disclosures.

" 'A mistrial is a drastic remedy that should be used
sparingly and only to prevent manifest injustice.' Hammonds
v. State, 777 So. 2d 750, 767 (Ala. Crim. App. 1999). ' "A trial
judge is allowed broad discretion in determining whether a
mistrial should be declared, because he is in the best position
to observe the scenario, to determine its effect upon the jury,
and to determine whether the mistrial should be granted." '
Berryhill v. State, 726 So. 2d 297, 302 (Ala. Crim. App. 1998)
(quoting Dixon v. State, 476 So. 2d 1236, 1240 (Ala. Crim.
App. 1985))."

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Lewis v. State, [Ms. CR-19-0567, Sept. 3, 2021] ___ So. 3d ___, ___ (Ala.

Crim. App. 2021).

A. FIRST MOTION

Before trial, Colburn filed a "motion to redact statement" to prohibit

any statements he made to police to the effect that he had provided

marijuana to his daughter based "[u]pon information and belief, the State

will move to dismiss the [charge of chemical endangerment of a child]

prior to trial."2 (C. 217.) At a motion hearing, the circuit court stated that

"the general statements about [Colburn's] drug use … I don't think [are]

due to come in." (C. 65.)

After the State's witness Robert Downs testified that his

investigation started with "a report from a mother who claimed that her

daughter disclosed that her father blew marijuana in her—in her—,"

Colburn moved for a mistrial. (R. 78.) As the motion was being discussed,

defense counsel alleged that "[the jurors] could hear everything that was

happening in the back, so now they're even more prejudiced by it." (R.

2The State nol-prossed Colburn's chemical-endangerment-of-a-
child charge.
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80.) The circuit court denied the motion, and issued the following curative

instruction:

"THE COURT All right. We're going to bring the witness back
out. I'll be honest with you, I didn't even really hear the
question and answer. You may or may not have either. But
you're to disregard any testimony that's been given. We're
going to start over with this witness, and so I want to be clear
that you are to—we're starting with this witness, disregard
anything that's been said up until this point. And Mr. Downs
has been sworn in, so I'm going to turn it over to State's
counsel and we'll get started with the questioning."

(R. 86-87.)

Downs's testimony that "her father blew marijuana in her—in her,"

was not, as the circuit court stated, "so prejudicial to cause a mistrial."

(R. 82.) After the State made it clear that it would nol-pros the charge of

chemical endangerment, Colburn's "drug use" was not at issue and was

mentioned only to show how DHR had gotten involved in the sexual-

abuse cases. Even so, the circuit court's instruction for the jury to

disregard Downs's testimony cured any error. See Pettibone v. State, 91

So. 3d 94, 115 (Ala. Crim. App. 2011) ("[J]urors are presumed to follow

the trial court's instructions."). Colburn's argument that the jury heard

any discussions between the parties or with the circuit court is no more

than a bare allegation. Thus, Colburn is due no relief on this issue.

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B. SECOND MOTION

After the State played the Child-Protect videos showing J.W. and

T.M., Colburn moved for mistrial, arguing that the trial judge's

"emotional reactions" to the videos might have "influenced the jury." (R.

270.) Colburn's argument, however, is not preserved for appellate review.

The record shows that Colburn did not move for a mistrial after the

videos were played, instead waiting until the next day after the

proceedings had resumed. See Culver v. State, 22 So. 3d 499, 518 (Ala.

Crim. App. 2008) ("To be timely, a motion for a mistrial must be made

immediately after the grounds alleged to warrant the mistrial become

apparent."). Thus, Colburn is due no relief on this issue.

III. REFUSAL TO GIVE JURY INSTRUCTION CONCERNING THE
VIDEOS

Colburn argues that the circuit court erred by refusing to instruct

the jury that "Colburn did not have an opportunity to cross-examine T.M.

or J.W. when the [C]hild [P]rotect videos were played." (Colburn's brief,

pp. 43-44.) Colburn concedes that he did not preserve this issue for

appellate review. See P.D.F. v. State, 758 So. 2d 1118, 1120 (Ala. Crim.

App. 1999) ("P.D.F. failed to preserve this issue for appellate review

because he failed to request the instruction and he failed to object to the

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trial court's failure to give the instruction."). Thus, Colburn is due no

relief on this issue.

IV. CUMULATIVE ERROR

Colburn argues that "[t]he cumulative effect of the errors in this

case require reversal." (Colburn's brief, p. 45.)

"[T]he cumulative-error rule is as follows: '[W]hile, under the
facts of a particular case, no single error among multiple
errors may be sufficiently prejudicial to require reversal
under Rule 45, if the accumulated errors have "probably
injuriously affected substantial rights of the parties," then the
cumulative effect of the errors may require reversal.' Ex parte
Woods, 789 So. 2d 941, 942 n. 1 (Ala. 2001) (quoting Rule 45,
Ala. R. App. P.)."

Brownfield v. State, 44 So. 3d 1, 33 (Ala. Crim. App. 2007).

No cumulative-error analysis is required. The only error, if any, was

with the circuit court's jury instruction on unanimity, and we have said

that that error was harmless. In other words, one harmless error cannot

be cumulative error. Thus, Colburn is due no relief on this issue.

V. SENTENCES FOR SEXUAL ABUSE OF A CHILD LESS THAN 12
YEARS OLD

Colburn argues that his life-imprisonment-without-parole

sentences for his convictions of sexual abuse of a child less than 12 years

old are illegal, and that, "[t]herefore, this Court should reverse the trial

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court and remand this case for a new sentencing hearing." (Colburn's

brief, pp. 44-45.)

Colburn was convicted of two counts of first-degree rape (Class A

felonies) and two counts of sexual abuse of a child less than 12 years old

(Class B felonies). See §§ 13A-6-61(b), 13A-6-69.1(b), Ala. Code 1975. The

State notified the circuit court of its intent to invoke the Habitual Felony

Offender Act, § 13A-5-9, Ala. Code 1975, relying on Colburn's nine prior

felony convictions consisting of both Class B and Class C felonies. (C. 138-

40.)

Section 13A-5-9(c) provides:

"(c) In all cases when it is shown that a criminal
defendant has been previously convicted of any three felonies
that are Class A, Class B, or Class C felonies and after such
convictions has committed another Class A, Class B, or Class
C felony, he or she must be punished as follows:

"(1) On conviction of a Class C felony, he or
she must be punished by imprisonment for life or
for any term of not more than 99 years but not less
than 15 years.

"(2) On conviction of a Class B felony, he or
she must be punished by imprisonment for life or
any term of not less than 20 years.

"(3) On conviction of a Class A felony, where
the defendant has no prior convictions for any
Class A felony, he or she must be punished by

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imprisonment for life or life without the possibility
of parole, in the discretion of the trial court.

"(4) On conviction of a Class A felony, where
the defendant has one or more prior convictions for
any Class A felony, he or she must be punished by
imprisonment for life without the possibility of
parole."

Under § 13A-5-9(c)(2), Colburn, on his convictions for sexual abuse

of a child less than 12 years old, should have been sentenced to "life or

any term of not less than 20 years." Thus, Colburn's sentences of life

imprisonment without the possibility of parole are illegal, and we must

remand this cause for the circuit court to resentence Colburn on those

convictions. 3

VI. POST-RELEASE SUPERVISION ON COLBURN'S SENTENCES
FOR FIRST-DEGREE RAPE

Under § 13A-5-6(c), for a Class A felony sex offense involving a

child, the circuit court is to impose "an additional penalty of not less than

10 years of post-release supervision to be served upon the defendant's

3Because the sentencing error could not have affected Colburn's
convictions, we did not consider it in the cumulative-error analysis. See
Issue IV. And we reject the State's argument that the sentencing error is
harmless. See, e.g., Jackson v. State, 317 So. 3d 1018 (Ala. Crim. App.
2020).

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release from incarceration." § 13A-5-6(c), Ala. Code 1975. That

subsection provides:

"In addition to any penalties heretofore or hereafter provided
by law, in all cases where an offender is designated as a
sexually violent predator pursuant to Section 15-20A-19, or
where an offender is convicted of a Class A felony sex offense
involving a child as defined in Section 15-20A-4,[4] and is
sentenced to a county jail or the Alabama Department of
Corrections, the sentencing judge shall impose an additional
penalty of not less than 10 years of post-release supervision
to be served upon the defendant's release from incarceration."

See also Bishop v. State, 344 So. 3d 906, 915 (Ala. Crim. App. 2021).

We note that the circuit court did not impose periods of post-release

supervision on Colburn's convictions for first-degree rape. Although

neither party raises the issue, we take this opportunity to clarify that the

circuit court was not required to do so. By its terms, § 13A-5-6(c) requires

post-release supervision only "upon the defendant's release from

incarceration." Because the circuit court sentenced Colburn to life

imprisonment without the possibility of parole for the first-degree-rape

4"Sex offense involving a child" is defined as "[a] conviction for any
sex offense in which the victim was a child or any offense involving child
pornography." § 15-20A-4(27), Ala. Code 1975.

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convictions, however, Colburn will not be released from prison. Thus, the

requirement of an "additional penalty" under § 13A-5-6(c) does not apply.

CONCLUSION

We affirm Colburn's convictions and sentences for first-degree rape.

We also affirm Colburn's convictions for two counts of sexual abuse of a

child less than 12 years old, but we remand this case to the circuit court

with instructions for it to conduct a new sentencing hearing at which

Colburn, represented by counsel, will be sentenced in accordance with

this opinion. Due return must be filed with this Court no later than 56

days from the date of this opinion. The return to remand must include a

transcript of the proceedings conducted on remand and a new sentencing

order.

AFFIRMED IN PART; REMANDED WITH INSTRUCTIONS.

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

in the result.

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