Girard v. State
Decision Date | 30 December 2003 |
Parties | Ex parte State of Alabama. (In re David A. GIRARD v. STATE of Alabama). |
Court | Alabama Supreme Court |
William H. Pryor, Jr., atty. gen., and Robin Blevins Scales and G. Ward Beeson III, asst. attys. gen., for petitioner.
Submitted on petitioner's brief only.
David A. Girard was indicted on May 23, 2001, for 26 counts of possessing obscene matter, violations of § 13A-12-192(b), Ala.Code 1975, and one count of contributing to the delinquency of a minor, a violation of § 12-15-13, Ala.Code 1975.1 Girard's trial began on October 10, 2001. After the State had presented its case-in-chief, the trial court granted Girard's motion for a judgment of acquittal on counts 2 through 6, 14, and 17 through 26, leaving pending 10 counts of possession of obscene matter. On October 11, 2001, the jury found Girard guilty of all 10 counts. On November 14, 2001, the trial court sentenced Girard to 10 years in prison on each count, but "split" the sentence and ordered Girard to serve 3 years in prison followed by 5 years on probation. The trial court ordered that Girard's sentences were to run concurrently.
Girard appealed to the Court of Criminal Appeals. That court reversed the judgment of the trial court and remanded the cause for the trial court to vacate all but one of the convictions and sentences. Girard v. State, 883 So.2d 714 (Ala.Crim.App.2002). The State filed an application for a rehearing on December 6, 2002, and the Court of Criminal Appeals denied rehearing on February 14, 2003. The State then petitioned this Court for a writ of certiorari to the Court of Criminal Appeals. We granted the State's petition to address what constitutes a "unit of prosecution" under Ala.Code 1975, § 13A-12-192(b), the statute barring the possession of "any obscene matter containing a visual reproduction of a person under the age of 17 years," an issue we have not previously specifically addressed. The interpretation of a statute involves a question of law and an appellate court reviews a trial court's interpretation de novo, without any presumption of correctness. Simcala, Inc. v. American Coal Trade, Inc., 821 So.2d 197 (Ala.2001). "`[O]n appeal, the ruling on a question of law carries no presumption of correctness, and this Court's review is de novo.' Ex parte Graham, 702 So.2d 1215, 1221 (Ala.1997)
." Rogers Found. Repair, Inc. v. Powell, 748 So.2d 869, 871 (Ala.1999).
The Court of Criminal Appeals set out the following summary of the pertinent facts:
The record reveals that Girard met a young male ("C.L.") in an Internet chat room in May 2000. C.L., who was 18 years old at the time of the trial in May 2002, testified that "a couple of times" Girard sent him "pictures of nude kids." C.L. testified that he subsequently visited Girard and that he "brought discs that contained pictures of what [Girard] had sent to me." Soon after C.L. left his home to visit Girard, his parents filed a missing person's report, and Brian Middleton, a police investigator, testified that the report stated "that [C.L.] was possibly with Mr. Girard." C.L. testified that after he learned that his parents had filed a missing person's report, he went to the police station because he "wanted to clear up the missing person's report." Middleton testified that while C.L. was at the police station, he "indicated to me that he was in possession of the disc that he admitted to be child pornography." Middleton stated that C.L. did not have the discs with him at the police station, rather "[t]hey were in Mr. Girard's possession." Thereafter, Middleton obtained a warrant to search Girard's house.
In its order reversing the judgment of the trial court, the Court of Criminal Appeals stated, in relevant part:
. Rather, this is a case where Girard's conduct has yielded an indictment in which the possession of each file of obscene material has been charged as a separate crime under the same statute. The pertinent inquiry in deciding whether this is acceptable in the face of constitutional guarantees against double jeopardy then becomes defining the correct unit of prosecution. Bell v. United States, 349 U.S. 81[, 75 S.Ct. 620, 99 L.Ed. 905] (1955).
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