Supreme Court of Alabama hears dispute over whether first-degree voyeurism counts as a '*** offense' for probation and registration

The Supreme Court of Alabama heard arguments in SC-2024-0771 on whether first-degree voyeurism falls within the statutory definition of a "*** offense," a classification that determines whether longer probation and registration requirements apply. State counsel Dylan Walden asked the court to reverse the Court of Criminal Appeals and reinstate an original eight-year probation term; defense counsel Zach Alstonbrook countered that the Court of Criminal Appeals correctly applied the law in light of how the statute read when the offense was committed.

The issue matters, attorneys told the court, because the statute that defines "*** offenses" contains multiple enumerations and catchall provisions that, depending on how they are read, either include or exclude conduct like voyeurism. Walden said the statute listed multiple ways a crime could qualify as a "*** offense," including provisions he argued encompass video voyeurism and conduct committed for "*** gratification," and that first-degree voyeurism therefore fit within several of the statute's definitions. He told the court, "all we're asking for is that this court reverse the CCA and reinstate the original sentence."

Alstonbrook said the Court of Criminal Appeals relied on the statute's enumerated descriptions and concluded the particular provision for voyeurism was not in place at the relevant time. He argued that reinstating the earlier sentence would operate retroactively and be unfair to his client, Trevor Cofer, who has served time and completed much of a later lawful sentence. "He has more than met his sentence. He has done everything that's been asked of him," Alstonbrook said, and urged any change to be prospective rather than retroactive.

Counsel and justices discussed whether the statute's text as written at the time of the offense already covered video voyeurism through several catchall or equivalent-meaning clauses and whether a literal or broader construction should govern. Walden pointed to the section the state cited as listing multiple ways a crime can constitute a "*** offense," saying first-degree voyeurism fits "neatly within three different definitions" in the statute. Defense counsel emphasized that the statute contained 41 listings and that the specific wording in effect when the crime occurred did not explicitly identify the statute at issue, a factual point the Court of Criminal Appeals relied upon.

Several procedural questions also arose. Justices asked whether the state could have sought rehearing in the Court of Criminal Appeals or otherwise preserved its argument earlier; Walden said the state was constrained by the procedural posture under ex parte Harris and that its remedy was to await remand and then seek review by this court. The parties also debated whether reinstating the original sentence would run afoul of the Ex Post Facto Clause or the Double Jeopardy Clause; the state submitted that it would not and cited precedent allowing appellate challenge to sentences, while the defense warned of unfairness to a defendant who had been resentenced and who had completed much of the later lawful term.

The record the attorneys referenced includes a sentencing exchange the parties said runs several pages, the trial judge's references to SORNA registration, and factual findings in the sentencing record that the defendant took multiple videos over a short period and in some instances recorded through a window blind. Counsel stated procedural facts from the record: Cofer served about one year in the county jail, has been on probation since, will reach approximately three years of probation in October of this year, and — according to one counsel's estimate in argument — currently has roughly a year remaining under the trial court's most recent sentence.

The court pressed the parties on whether deciding the statutory question would be an issue of first impression with material statewide effect or instead produce only case-specific relief for Cofer. Counsel for the state argued the court's interpretation could affect others who committed similar conduct during the period between when the statute's language changed and when it was amended to list video voyeurism explicitly; defense counsel focused on the case-specific consequences for his client and on the fairness of retroactive application.

Oral argument concluded and the court adjourned. The justices did not announce a decision from the bench.