Mason v. City of Vestavia Hills

• Decision Date: 08 September 1987
• Docket Number: 6 Div. 230
• Citation: 518 So.2d 221
• Parties: James Ira MASON v. CITY OF VESTAVIA HILLS.
• Court: Alabama Court of Criminal Appeals

Page 221

518 So.2d 221

James Ira MASON v. CITY OF VESTAVIA HILLS.

6 Div. 230.

Court of Criminal Appeals of Alabama.

Sept. 8, 1987.

Rehearing Denied Oct. 13, 1987.

Certiorari Denied Dec. 18, 1987

Alabama Supreme Court 87-88.

Kenneth J. Gomany, Birmingham, for appellant.

Gary C. Pears, Birmingham, for appellee.

BOWEN, Presiding Judge.

James Ira Mason was convicted in Vestavia Hills Municipal Court of indecent exposure, sentenced to 180 days in jail, and fined $500. He appealed to Jefferson Circuit Court for trial de novo, where he was again convicted and given the same sentence. He raises three issues on appeal to this court.

I

The crime of indecent exposure is defined in § 13A-6-68, Code of Alabama 1975, as follows:

"A person commits the crime of indecent exposure if, with intent to arouse or gratify sexual desire of himself or of any person other than his spouse, he exposes his genitals under circumstances in which he knows his conduct is likely to cause affront or alarm in any public place or on the private premises of another or so near thereto as to be seen from such private premises."

The complaint filed in municipal court alleged that the defendant committed the crime of indecent exposure "in that he, with intent to gratify sexual desire of himself, did so by exposing his genitals to Martha Sue Sanford, on a public street." Upon the defendant's appeal to circuit court, the City charged that the defendant committed the prohibited act "with the intent to arouse or gratify the sexual desire of himself or of another person other than his spouse...." The defendant contends that the addition of the words "or of another person other than his spouse" constituted an amendment of the charge, without his consent, prohibited by Rule 15.5(a), A.R.Crim.P.Temp., and Ex parte Wallace, 497 So.2d 96 (Ala.1986). We agree. The error was harmless, however, because the defendant was not misled in formulating his defense strategy, and the City offered proof of both disjunctive averments of intent.

The City's evidence tended to show that the defendant, driving a Saab, followed the complainant, Martha Sue Sanford, driving a Cadillac, through the Tanglewood area of Vestavia Hills. When Mrs. Sanford stopped at an intersection, the defendant pulled his vehicle alongside hers into the lane of oncoming traffic. When she turned, he turned. Finally, she came to a four-way stop and the defendant pulled "very close" beside her. As Mrs. Sanford turned to look at the defendant, she saw that his genitals were exposed and he was masturbating. Mrs. Sanford testified that the defendant was "leaning forward and grinning" at her. "It was evil. He was grinning." The State also proved Mrs. Sanford was not married to the defendant. Under the circumstances, the jury could have found that the defendant's intent was to gratify his own sexual desire or to arouse the sexual desire of the complainant, or both.

The law regarding amendment of a charging instrument has been characterized by inconsistency, confusion, and often injustice. Compare Blankenshire v. State, 70 Ala. 10 (1881) (amendment to solicitor's complaint allowed even though original affidavit did not charge an offense), with Miles v. State, 94 Ala. 106, 11 So. 403 (1892) (amendment of solicitor's complaint improper because original affidavit did not charge an offense). See generally, Ex parte City of Dothan, 501 So.2d 1136, 1157-73 (Ala.1986) (Beatty, J., dissenting); Ex parte Allred, 393 So.2d 1030, 1033 (Ala.1980) (Maddox, J., concurring specially); Edwards v. State, 480 So.2d 1259 (Ala.Cr.App.), cert. denied, Ex parte Edwards, 480 So.2d 1264 (Ala.1985); Sisson v. State, [Ms. 6 Div. 161, June 9, 1987] (Ala.Cr.App.1987).

Prior to the adoption of Rule 15.5, A.R.Crim.P.Temp., an indictment could not be amended, even as to an immaterial matter, without the consent of the defendant. See Ex parte Allred, supra; Gregory v. State, 46 Ala. 151 (1871); Ala. Code 1975, § 15-8-90; Rule 15.5, A.R.Crim.P.Temp. (Comment at 460). On the other hand, a complaint originating in city court could be amended, Thomas v. State ex rel. Stepney, 58 Ala. 365 (1877), as long as the original complaint was not absolutely void, Freeland v. State, 26 Ala.App. 74, 75, 153 So. 294 (1934); Royals v. State, 31 Ala.App 367, 368, 18 So.2d 417, cert. denied, 245 Ala. 677, 18 So.2d 418 (1944), and as long as the amendment did not introduce a new or different offense from that described in the affidavit, Mosley v. City of Auburn, 428 So.2d 165, 167 (Ala.Cr.App.1982); Gober v. City of Birmingham, 41 Ala.App. 313, 133 So.2d 697, cert. denied, 272 Ala. 704, 133 So.2d 702 (1961), reversed on other grounds, 373 U.S. 374, 83 S.Ct. 1311, 10 L.Ed.2d 419 (1963).

The free amendability of complaints, as distinguished from indictments, was due to the fact that proceedings based on complaints for violations of municipal ordinances were considered to be only quasicriminal, see McKinstry v. City of Tuscaloosa, 172 Ala. 344, 54 So. 629 (1910), Howard v. City of Bessemer, 40 Ala.App. 317, 320, 114 So.2d 158, cert. dismissed, 269 Ala. 474, 114 So.2d 164 (1959), and, as such, were governed by Tit. 7, § 238, Code of Alabama 1940 (Recomp.1958), which provided that "the court must permit an amendment of the pleadings...." (Emphasis added.) In Gober v. City of Birmingham, supra, the court observed that Tit. 7, § 238, was "broad and comprehends all pleadings except indictments, and authorizes amendment of complaints in prosecutions for violation of city ordinances, as though it were a complaint in a civil action." 41 Ala.App. at 316, 133 So.2d 697.

Title 7, § 238, however, was superseded on July 3, 1973, by Rule 15 of the Alabama Rules of Civil Procedure, see A.R.Civ.P., Appendix II at 265, and was not recodified at the time the 1975 Code of Alabama was enacted for possible application in quasi-criminal proceedings. We decline to speculate on the law regarding the amendability of complaints from July 3, 1973 (when Tit. 7, § 238, was superseded) until March 1, 1983 (when Rule 15.5, A.R.Crim.P.Temp., became effective), but compare Jackson v. City of Muscle Shoals, 52 Ala.App. 227, 291 So.2d 162 (1974) (holding that an "amended" complaint was improper because the initial proceeding had been "void ab initio"), with Rule 15(d), A.R.Civ.P. (amendment may be allowed "even though the original pleading is defective in its statement of a claim"), and Committee Comments at 64-65.

We hold that the amendability of complaints has been governed, since March 1, 1983, by Rule 15.5, A.R.Crim.P.Temp., which provides, in pertinent part:

"A charge may be amended by order of the court with the consent of the defendant in all cases except to change the offense or to charge new offenses not included in the original indictment, information, or complaint."

The rule, by its plain language, applies to all "charges." A complaint is a "charge." Rule 15.1(c), A.R.Crim.P.Temp. The rule, therefore, makes complaints, like indictments, absolutely non-amendable without the consent of the defendant. Ex parte Wallace, 497 So.2d at 99.

In Dunn v. City of Montgomery, 515 So.2d 135 (Ala.Cr.App.1987), released the same date as this case, this court held:

"The amendment of the complaint was improper. Rule 15.5(a), Alabama Rules of Criminal Procedure (Temporary), provides: 'A charge may be amended by order of the court with the consent of the defendant in all cases except to change the offense or to charge new offenses not included in the original indictment, information, or complaint.' This means that (1) a charge may only be amended with the defendant's consent and (2) a charge may not be amended where the amendment changes the offense or charges a new offense not included in the original charge. Ex parte Wallace, 497 So.2d 96 (Ala.1986); Mason v. City of Vestavia Hills, 518 So.2d 221 (Ala.Cr.App.1987)."

The holding in Sisson v. State, supra, and post-1983 cases cited therein that a complaint may be amended if it does not "change the offense" or "charge new offenses" is contrary to the clear directive of Rule 15.5, and is therefore limited to the extent that it conflicts with the rule.

In the present case, the addition of the words "or of another person other than his spouse" constituted an amendment prohibited by Rule 15.5. The fact that the amendment was in violation of the rule does not, however, mandate automatic reversal. Rule 45, A.R.A.P., provides:

"No judgment may be reversed or set aside, nor new trial granted in any civil or criminal case on the ground of misdirection of the jury, the giving or refusal of special charges or the improper admission or rejection of evidence, nor for error as to any matter of pleading or procedure, unless in the opinion of the court to which the appeal is taken or application is made, after an examination of the entire cause, it should appear that the error complained of has probably injuriously affected substantial rights of the parties." (Emphasis added.)

The defendant here was not harmed by the amendment. Because his defense was an absolute denial of the charges, he was not misled to his detriment by the addition of an alternative intent allegation contained in § 13A-6-68. Similarly, because the State's evidence proved both allegations, there was no variance between the charge and the proof, as existed in Ex parte Hightower, 443 So.2d 1272 (Ala.1983).

Although the Alabama Supreme Court has not determined whether a violation of Rule 15.5 is subject to the harmless error rule, this court so held in Edwards v. State, 480 So.2d at 1264. To refuse to apply harmless error analysis to a violation of Rule 15.5 is to elevate form over substance. We note that the predecessor to Rule 15.5, Proposed Rule 13.5, A.R.Crim.P. (A.L.I. Advisory Committee Draft 1977), provided, "The court may permit a charge to be amended, without the defendant's consent, at any time before verdict or finding if no additional or different offense is...