Inmon v. State

• Decision Date: 14 June 1991
• Docket Number: CR-89-671
• Citation: 585 So.2d 261
• Parties: Robert F. INMON v. STATE.
• Court: Alabama Court of Criminal Appeals

Page 261

585 So.2d 261

Robert F. INMON v. STATE.

CR-89-671.

Court of Criminal Appeals of Alabama.

June 14, 1991.

Certiorari Denied Aug. 16, 1991

Alabama Supreme Court 1901517.

Thomas A. Deas, Mobile, for appellant.

Don Siegelman, Atty. Gen., and J. Thomas Leverette, Asst. Atty. Gen., for appellee.

ON APPLICATION FOR REHEARING

BOWEN, Judge.

The opinion of this Court issued March 29, 1991, is hereby set aside. The following becomes the opinion of this Court.

Robert F. Inmon was charged, in Count I of a two-count indictment, with sexual abuse in the second degree, a Class A misdemeanor under Ala.Code 1975, § 13A-6-67(a)(2), and in Count II, with taking an obscene photograph of a person under the age of 17 years, a Class A felony under § 13A-12-197. He was acquitted of the offense charged in Count II, was convicted of the crime alleged in Count I, and was sentenced to one year's imprisonment in the Mobile County jail. He raises eight issues on this appeal from that conviction.

L.A.R. testified that in July 1984, she was 12 years old, and her mother married the defendant. A few months after the marriage, the defendant began entering L.A.R.'s room in the middle of the night, moving her night clothes aside, and touching her vagina with his hand. According to L.A.R., on at least one of these occasions, the defendant took a photograph of her pubic area. The defendant continued this activity about three times a week until the last time, in November 1985. During all of these encounters, L.A.R. pretended to be asleep and did not speak to the defendant. On the last occasion, L.A.R.'s mother saw the defendant leaving her daughter's room and began screaming at the defendant. L.A.R. covered her head with a pillow and went back to sleep. The next morning, L.A.R. went to her grandmother's house.

On November 19, 1985, L.A.R.'s grandmother took the child to Dr. Dan Sullivan, the family pediatrician, "to determine whether or not she had been abused sexually." L.A.R. stayed with her grandmother for two weeks and then returned to the home of her mother and stepfather, the defendant. After she came home, L.A.R. locked her door every night, and the defendant's previous activity did not reoccur. L.A.R. continued to live with her mother and the defendant until she was 18 years old, which was shortly before the time of the trial in this case.

I

The defendant argues that Count I of the indictment failed to state an offense because it omitted an essential element of the crime of sexual abuse, the intent with which the act was committed.

The defendant is correct that intent is an essential element of the offense of sexual abuse. See McGahee v. State, 554 So.2d 454, 465 (Ala.Cr.App.), affirmed, 554 So.2d 473 (Ala.1989); Nails v. State, 549 So.2d 572, 574 (Ala.Cr.App.1989); Hawkins v. State, 549 So.2d 552, 555 (Ala.Cr.App.1989); Phillips v. State, 505 So.2d 1075, 1078 (Ala.Cr.App.1986); Pierce v. State, 484 So.2d 506, 509 (Ala.Cr.App.1985); Parker v. State, 406 So.2d 1036, 1039 (Ala.Cr.App.), cert. denied, 406 So.2d 1041 (Ala.1981). Sexual abuse "requires proof that the defendant acted with the intent to gratify the sexual desires of himself or the prosecutrix." Ex parte Cofer, 440 So.2d 1121, 1124 (Ala.1983).

Generally, "[a]n indictment is sufficient which substantially follows the language of the statute, provided the statute prescribes with definiteness the constituents of the offense." Ex parte Allred, 393 So.2d 1030, 1032 (Ala.1980), quoted in Copeland v. State, 456 So.2d 1150, 1151 (Ala.Cr.App.1984).

"To avoid omitting a crucial element of the offense, prosecutors frequently draft pleadings that track the language of the criminal provision.... Reliance upon the statutory language will be acceptable, however, only if 'the words of [the statute] themselves fully, directly, and expressly, without any uncertainty or ambiguity, set forth all the elements necessary to constitute the offense. If the statute omits an essential element, such as mens rea, then that element must be added to the pleading.' "

2 W. LaFave & J. Israel, Criminal Procedure § 19.2(c) at 452 (1984) (footnotes omitted) (quoting Hamling v. United States, 418 U.S. 87, 94 S.Ct. 2887, 41 L.Ed.2d 590 (1974)).

This indictment, by charging that the defendant "did knowingly subject L.A.R. to sexual contact," tracked the language of § 13A-6-67. Although the indictment did not explicitly allege the intent element of the offense, it did not "omit" the intent component of the charged offense. That component was encompassed in the term "sexual contact," defined in the definitional section for "Sexual Offenses" as follows:

"SEXUAL CONTACT. Any touching of the sexual or other intimate parts of a person not married to the actor, done for the purpose of gratifying the sexual desire of either party."

Ala.Code 1975, § 13A-6-60(3).

In Pierce v. State, 484 So.2d 506 (Ala.Cr.App.1985), this court observed:

"Although the intent to gratify the sexual desire of either party is an element of sexual abuse, it is not explicitly alleged in the indictment. Rather it is encompassed in the definition of 'sexual contact': 'Any touching of the sexual or other intimate parts of a person not married to the actor, done for [the] purpose of gratifying the sexual desire of either party.' "

484 So.2d at 509 (emphasis in original) (citations omitted).

This Court reversed a conviction for sexual abuse in Pierce because we found the accused's guilty plea involuntary. We determined that the record affirmatively showed that the accused did not understand the elements of the offense to which he was pleading guilty because a simple reading of the indictment did not put him on notice of the nature of the charge against him. In Pierce, the accused admitted that "while hugging his daughter he touched her breasts without any sexual intent." 484 So.2d at 510 (emphasis added).

Pierce holds that a mere reading of the indictment cannot establish a factual basis for a plea to sexual abuse when the accused disclaims criminal intent. It does not stand for the proposition that an indictment for sexual abuse which tracks the language of the statute and incorporates the intent element in a "word or phrase defined by law" is insufficient.

"The words used in an indictment must be construed in their usual acceptation in common language, except words and phrases defined by law, which must be construed according to their legal meanings."

Ala.Code 1975, § 15-8-5 (emphasis added). Since "sexual contact" is "defined by law" to encompass the intent element required for sexual abuse, its use in an indictment is legally sufficient to charge the offense. If that were not the case, there would have been no need to determine the voluntariness of the plea in Pierce; the plea, even if voluntary, would have been invalid because it rested on a void indictment. "Where an indictment is void and does not charge an offense, this Court is bound to take notice of such a defect." Barbee v. State, 417 So.2d 611, 613 (Ala.Cr.App.1982).

The defendant's motion to dismiss the indictment on the ground that it failed to state an offense was properly denied.

II

The defendant argues that the court erroneously denied his motion to dismiss Count II of the indictment because it failed to allege the date on which he took the obscene photograph. He also argues that the court erred by denying his motion for severance of counts in the indictment, since without the date of the offense alleged in Count II there was no showing that the obscenity and sexual abuse offenses were connected in their commission and thus properly joined.

The defendant acknowledges that the date on which an offense occurred need not be alleged in the "indictment unless time is a material ingredient of the offense." Ala.Code 1975, § 15-8-30. However, he maintains that time was material here because the four-year delay between the offense and the indictment hampered the presentation of his defense. This argument is moot since the jury acquitted the defendant of the offense charged in Count II. "Only the count upon which appellant was found guilty is subject to appellate review." Hammond v. State, 354 So.2d 280, 284 (Ala.Cr.App.), cert. quashed, 354 So.2d 294 (Ala.1977), cert. denied, 439 U.S. 823, 99 S.Ct. 91, 58 L.Ed.2d. 115 (1978).

Here, the offenses of sexual abuse and taking an obscene photograph were connected, and their joinder was authorized based on L.A.R.'s testimony that on at least one of the occasions when the defendant touched her vagina, he also photographed that portion of her body. The acts underlying the two counts of the indictment were, therefore, of a "similar character[,] or ... based on the same conduct or ... otherwise connected in their commission." Rule 15.3(a)(i) and (ii), Ala.R.Crim.P.Temp. (now Rule 13.3(a)(1) and (2), A.R.Cr.P.). See Perry v. State, 568 So.2d 339, 342 (Ala.Cr.App.1990) (consolidation of indictments for sexual abuse pursuant to § 13A-6-67, and for production of obscene matter pursuant to § 13A-12-196, proper when evidence established that "the sexual abuse occurred 'one time after the pictures had started' ").

III

L.A.R.'s testimony that the defendant subjected her to sexual abuse approximately three times a week, beginning several months after his marriage to her mother in July 1984 and continuing until November 1985, was admissible. In Bowden v. State, 538 So.2d 1226 (Ala.1988), our supreme court held that "evidence establishing that [defendant] ... committed acts of sexual abuse toward [the victim] prior to or subsequent to the offense for which he is charged, is admissible to prove his motive in committing the charged offense." 538 So.2d at 1235 (emphasis in original). " '[I]n a carnal knowledge case, the prosecution may introduce proof of sexual relations between the accused and the prosecutrix before and after the act on which the prosecution is based.... The reason behind the admissibility of such acts was discussed...