Ankrom v. State, CR-09-1148

CourtAlabama Court of Criminal Appeals
Writing for the CourtBURKE.
PartiesHope Elisabeth Ankrom v. State of Alabama
Docket NumberCR-09-1148
Decision Date26 August 2011

Hope Elisabeth Ankrom
State of Alabama



OCTOBER TERM, 2010-2011
Dated: August 26, 2011

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) 229-0649), of any typographical or other errors, in order that corrections may be made before the opinion is printed in Southern Reporter.

Appeal from Coffee Circuit Court

BURKE, Judge.

Hope Elisabeth Ankrom pleaded guilty to chemical endangerment of a child, a violation of § 26-15-3.2, Ala. Code 1975. The trial court sentenced Ankrom to three years in prison, but the court suspended that sentence and placed her

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on one year of supervised probation. Ankrom appealed her conviction. We affirm.

Facts and Procedural History

At the guilty-plea hearing, the parties stipulated to the following facts:

"On January 31, 2009, the defendant, Hope Ankrom, gave birth to a son, [B.W.], at Medical Center Enterprise. Medical records showed that the defendant tested positive for cocaine prior to giving birth and that the child tested positive for cocaine after birth.
"Department of Human Resources worker Ashley Arnold became involved and developed a plan for the care of the child. During the investigation the defendant admitted to Ashley that she had used marijuana while she was pregnant but denied using cocaine.
"Medical records from her doctor show that he documented a substance abuse problem several times during her pregnancy and she had tested positive for cocaine and marijuana on more than one occasion during her pregnancy."

On February 18, 2009, Ankrom was arrested and charged with chemical endangerment of a child. On August 25, 2009, the grand jury indicted Ankrom. The indictment stated that Ankrom "did knowingly, recklessly, or intentionally cause or permit a child, to-wit: [B.W.], a better description of which is to the Grand Jury otherwise unknown, to be exposed to, to

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ingest or inhale, or to have contact with a controlled substance, chemical substance, or drug paraphernalia as defined in Section 13A-12-260 of the Code of Alabama, 1975, to-wit: Cocaine, in violation of Section [26-15-3.2 (a) (1)]."

On September 25, 2009, Ankrom filed a motion styled as a "Motion to Dismiss Indictment." In that motion, after setting forth the facts, Ankrom argued that "[t]he plain language of [§ 26-15-3.2, Ala. Code 1975,] shows that the legislature intended for the statute to apply only to a child, not a fetus"; that "courts in other states which have enacted the same or similar chemical endangerment statutes have determined that such statutes do not apply to prenatal conduct that allegedly harms a fetus"; that "[t]he state's contention that the defendant violated this statute renders the law impermissibly vague, and therefore the rule of lenity applies"; that "[t]he legislature has previously considered amending the statute to include prenatal conduct that harms a fetus, and declined to do so"; that "the defendant has not been accorded due process because there was no notice that her conduct was illegal under this statute"; that " [t]he prosecution of pregnant women is a violation of the

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constitutional guarantee of Equal Protection"; and that " [p]rosecution of pregnant, allegedly drug-addicted women is against public policy for numerous moral and ethical reasons." The State responded to that motion on October 13, 2009. In the State's response, it agreed that on January 31, 2009, Ankrom gave birth to a son and that medical records showed that Ankrom tested positive for cocaine immediately prior to giving birth and that the child tested positive for cocaine after birth. Based on that conduct, the State argued that prosecution of Ankrom was proper under § 26-15-3.2, Ala. Code 1975. On October 15, 2009, the trial court denied Ankrom's motion.

On April 1, 2010, Ankrom pleaded guilty to a violation of § 26-15-3 . 2 (a) (1) , Ala. Code 1975. (R. 1-14.) At the guilty-plea hearing, before entering her plea, Ankrom reserved an issue for appellate review, in the following exchange:

"The Court: All right. Should your plea be one of guilty -- and I will go over the possibilities. But should your plea be one of guilty, will you be reserving any issues for appeal?
"[Defense counsel]: Yes, sir.
"The Court: Okay. And do you wish to specify what that issue or what those issues would be?

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"[Defense counsel]: Yes, sir. On September the 25th of 200 9, I filed a motion to dismiss the indictment against Ms. Ankrom predicated upon the fact that the facts as related are going to be stipulated to the Court and they were recited in the motion to dismiss the indictment. Those facts do not assert an offense against her. The law under which she's charged; 26-15-3.2, Code of Alabama 1975, are inapplicable to -- isn't applicable to the facts of this case.
"The Court: Okay.
"[Defense Counsel]: That's the issue we are reserving."

Ankrom alleges that based on the facts of this case, she cannot be convicted of violating § 26-15-3.2(a)(1), Ala. Code 1975. Her allegation presents a question of first impression for this Court. Specifically, the issue before this Court is whether a mother who ingested a controlled substance during her pregnancy, may be prosecuted under § 26-15-3.2 (a) (1), Ala. Code 1975, if at birth the infant tests positive for the controlled substance. We answer that legal question in the affirmative, and we conclude that based on the facts of this case, Ankrom's conviction was proper.

Initially, we note that in Doseck v. State, 8 So. 3d 1024 (Ala. Crim. App. 2008), this Court declined to review the

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merits of a similar issue because the issue had been improperly raised in the trial court by way of a motion to dismiss. This Court held that Rule 13.5(c)(1), Ala. R. Crim. P., does not permit dismissal of an indictment based on the insufficiency of the evidence and that no other "Rule of Criminal Procedure . . . provides a mechanism for a pretrial challenge to the sufficiency of the evidence." Doseck, 8 So. 3d at 1025.

In the present case, Ankrom's attorney referenced the indictment when reserving the issue for review and styled the pleading as a "Motion to Dismiss Indictment." However, the motion was obviously mislabeled, because it did not challenge the validity of the indictment. Rather, Ankrom's motion and argument forthrightly raised the issue whether her conduct, as a matter of law, constituted a violation of § 26-15-3.2, Ala. Code 1975, the offense charged in the indictment. The trial court was clearly on notice of this legal issue, interpreted the language of the statute to encompass Ankrom's conduct, and accepted Ankrom's reservation of the issue for appellate

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review. The State did not object to the reservation of this issue.

Procedurally, Doseck appears to be nearly identical to the present case1 and, if followed, would require this Court to hold that Ankrom's claim is not properly before this Court for review. However, upon reexamining Doseck, we now believe that this decision conflicts with established precedent from the Alabama Supreme Court, such as Ex parte Deramus, 882 So. 2d 875 (Ala. 2002). In Ex parte Deramus, the Alabama Supreme Court held:

"Indeed, the mere mislabeling of a motion is not fatal. King Mines Resort, Inc. v. Malachi Mining & Minerals, Inc., 518 So. 2d 714, 718 (Ala. 1 987) . This Court has stated that it is 'committed to the proposition that it will treat a motion (or other pleading) and its assigned grounds according to its

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substance.' King Mines Resort, 518 So. 2d at 718; see also Lockhart v. Phenix City Inv. Co., 488 So. 2d 1353 (Ala. 1986), and Sexton v. Prisock, 495 So. 2d 581 (Ala. 1986). Further, the Court has held that '[t]he substance of a motion and not its style determines what kind of motion it is.' Evans v. Waddell, 689 So. 2d 23, 26 (Ala. 1997)."

882 So. 2d at 875. This Court has subsequently followed the teachings of Ex parte Deramus on numerous occasions in different contexts. See, e.g., Ferguson v. State, 13 So. 3d 418 (Ala. Crim. App. 2008) (treating motion to modify sentence as an amended Rule 32, Ala. R. Crim. P., petition for postconviction relief); Ex parte Mitchell, 936 So. 2d 1094 (Ala. Crim. App. 2006) (treating petition for a writ of mandamus as a petition for a writ of habeas corpus); Ex parte Bridges, 905 So. 2d 32 (Ala. Crim. App. 2005) (treating petition for a writ of mandamus as a petition for a writ of prohibition); and Bulger v. State, 904 So. 2d 219 (Ala. Crim. App. 2004) (treating Rule 32, Ala. R. Crim. P., petition for postconviction relief as a motion to reconsider sentence under § 13A-5-9.1, Ala. Code 1975).

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In his dissent in Doseck, then Judge Shaw2 explained:

"I agree with the majority that a motion to dismiss an indictment is not the proper avenue for challenging the sufficiency of the evidence. However, the majority fails to acknowledge the well settled principal that '[t]he substance of a motion and not its style determines what kind of motion it is.' Evans v. Waddell, 68 9 So. 2d 23, 24

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