R.K.D. v. State, CR-96-0488

• Decision Date: 26 September 1997
• Docket Number: CR-96-0488
• Citation: 712 So.2d 754
• Parties: R.K.D., alias v. STATE.
• Court: Alabama Court of Criminal Appeals

Page 754

712 So.2d 754

R.K.D., alias v. STATE.

CR-96-0488.

Court of Criminal Appeals of Alabama.

Sept. 26, 1997.

Rehearing Denied Nov. 14, 1997.

Jessica Kirk, Alexander City, for appellant.

Bill Pryor, atty. gen., and Gail Ingram Hampton, asst. atty. gen., for appellee.

BASCHAB, Judge.

The appellant, R. K. D., was convicted of knowingly possessing "obscene matter containing a visual reproduction of a person under the age of 17 years engaged in any act of sado-masochistic abuse, sexual intercourse, sexual excitement, masturbation ... or other such conduct," a violation of § 13A- 12-192(b), Code of Alabama 1975. The appellant was sentenced, pursuant to the Habitual Felony Offender Act, to a term of 15 years imprisonment ¹.

I.

The appellant argues that the State failed to prove the elements of § 13A-12-192(b), Code of Alabama 1975, i.e., that he was in possession of obscene matter containing visual reproductions of persons under the age of 17 years engaged in certain proscribed obscene acts. The State first argues that this issue was not preserved for appellate review because the appellant failed to make a specific argument in his motion for judgment of acquittal that none of the exhibits offered into evidence by the State was a visual reproduction of a "live act." See, § 13A-12-190(12), Code of Alabama 1975. This court notes that neither § 13A-12-192(b), Code of Alabama 1975, nor § 13A-12-190(12), Code of Alabama 1975, defines the term "visual reproduction." The State further argues that, even if this issue is preserved for appellate review, the trial court properly denied the appellant's motion for a judgment of acquittal.

During the argument concerning the appellant's motion for judgment of acquittal, the following occurred:

"MR. RADNEY [DEFENSE COUNSEL]: The defendant makes a motion for a Judgment of Acquittal ... The State's only witness said that there was no visual reproduction of a child under the age of seventeen in any of the exhibits. The statute says: Any person know (sic) to be possessing any obscene matter containing a visual reproduction. Everything after that involves a person doing so-and-so. The statute says, and the indictment follows it word for word, comma for comma, semicolon for semi-colon. Any person who knowingly possesses any obscene matter containing a visual reproduction. I stop right there. Because everything else follows that. Lieutenant Dindinger said there was not one exhibit of everyone included, the Court can remember it, the court reporter can read it back, no visual reproduction of anybody. We have got pictures of Arnold Palmer. We have got pictures--most of those are published magazines that are mailed through the mail. Some of them show--assuming they all show a child under seventeen--assuming that. Cases hold you don't have to bring somebody in to prove how old that person is and so forth. But, none of them show that child engaged in any act that they follow the statute with, and I don't pretend that the Court doesn't know what all those words mean, but I'll give you Webster's definition of sadomasochism--

"....

"THE COURT: You don't quarrel with the idea that a visual reproduction could include drawings, do you?

"[DEFENSE COUNSEL]: It says visual reproduction. I do take issue with that as being a drawing.

"THE COURT: The Court disagrees.

"[DEFENSE COUNSEL]: I do take issue with that. Although there is no drawing showing an act of sexual intercourse. There is a drawing of a person, of a genital organ. I say that's not a visual reproduction.

"THE COURT: Well, I think the term visual reproduction includes drawings, cartoons, anything that produces something that is recognizable as such. It doesn't--I don't think it is limited to pure and simple photographs.

"[DEFENSE COUNSEL]: ... If the Court is saying, I, as a citizen of the State of Alabama, cannot take me a pencil and a piece of paper and draw a lewd picture and put it in the trunk of my car and that's what commits a felony in this case, then defense counsel and the State are in violent disagreement."

(R. 56-61) (emphasis supplied).

In Rose v. State, 598 So.2d 1040, 1043 (Ala.Cr.App.1992), this court restated the well-settled rule of law that "[o]bjections must be stated with 'sufficient particularity' to apprise the trial court of 'basis for the objection' so as to permit the trial court to make an informed decision 'on the particular legal issue involved.' " See also, Goodwin v. State, 641 So.2d 1289, 1291 (Ala.Cr.App.1994); Robinson v. State, 574 So.2d 910, 917-18 (Ala.Crim.App.1990). It is also true that "[t]he statement of specific grounds of objection waives all grounds not specified, and the trial court will not be put in error on grounds not assigned at trial." Ex parte Frith, 526 So.2d 880, 882 (Ala.1987). See also, Goodwin v. State, supra. The purpose of these rules is to afford the trial court an opportunity to correct an alleged error or defect. Ex parte Knight, 453 So.2d 754, 756 (Ala.1984). Likewise, where a defendant states specific grounds in a motion for a judgment of acquittal, the defendant is bound by those grounds and cannot raise new or different grounds on appeal. Washington v. State, 555 So.2d 347, 348 (Ala.Cr.App.1989).

During the argument on the appellant's motion, which includes nearly six pages of the record, appellate counsel quoted § 13A-12-192(b), Code of Alabama 1975, the statute under which the appellant was charged, practically verbatim. Counsel specifically stated at the beginning of his argument that "there was no visual reproduction of a child under the age of seventeen in any of the exhibits." ² Although counsel did not specifically utter the words "live act," the phrase "live act" is included within the definition of "matter," as defined by § 13A-12-190(12), Code of Alabama 1975, a word to which counsel did refer. Furthermore, counsel repeatedly argued that the State failed to prove that any of the numerous exhibits contained "visual reproductions"; that phrase precedes "live act" in § 13A-12-190(12), Code of Alabama 1975.

It is clear from the record that the grounds stated in the appellant's motion for a judgment of acquittal were more than adequate to apprise the trial court of the basis of his argument and to allow the court to make an informed decision on the legal issues raised in his motion. Ex parte Knight, supra; Washington v. State, supra. That is all that Alabama law requires. To hold, under these facts, that the appellant's argument is not preserved for appellate review would reveal "a preoccupation with form instead of substance allowing the scales of justice to rust and collect dust." Estes v. State, 358 So.2d 1050, 1056 (Ala.Cr.App.1978).

II.

Having decided that this issue is preserved for our review, this court must now determine whether the trial court committed reversible error by denying the appellant's motion for a judgment of acquittal.

The appellant was charged with possession of obscene matter, a violation of § 13A-12-192(b), Code of Alabama 1975, which provides as follows:

" § 13A-12-192. Possession of obscene matter.

"(b) Any person who knowingly possesses any obscene matter containing a visual reproduction of a person under the age of 17 years engaged in any act of sado-masochistic abuse, sexual intercourse, sexual excitement, masturbation, genital nudity, or other sexual conduct shall be guilty of a Class C felony."

Id. The term "matter," as used by this section, is defined at § 13A-12-190(12), Code of Alabama 1975, as follows:

"(12) Any book, magazine, newspaper, or other printed material, or any picture, photograph, motion picture or electrical or electronic reproduction, or any other articles or materials that either are or contain a photographic or other visual reproduction of a live act, performance, or event."

Id. (Emphasis supplied).

"A basic rule of review in criminal cases is that criminal statutes are to be strictly construed in favor of those persons sought to be subjected to their operation, i.e., defendants. Schenher v. State, 38 Ala.App. 573, 90 So.2d 234, cert. denied, 265 Ala. 700, 90 So.2d 238 (1956).

"Penal statutes are to reach no further in meaning than their words. Fuller v. State, 257 Ala. 502, 60 So.2d 202 (1952).

"One who commits an act which does not come within the words of a criminal statute, according to the general and popular understanding of those words, when they are not used technically, is not to be punished thereunder, merely because the act may contravene the policy of the statute. Fuller v. State, supra, citing Young's Case, 58 Ala. 358 (1877).

"No person is to be made subject to penal statutes by implication and all doubts concerning their interpretation are to predominate in favor of the accused. Fuller v. State, supra."

Clements v. State, 370 So.2d 723, 725 (Ala.1979), overruled on other grounds, Beck v. State, 396 So.2d 645 (Ala.1980) (cited with approval in Ex parte Mutrie, 658 So.2d 347, 349 (Ala.1993)). " 'Further, it is well established that criminal statutes should not be "extended by construction." Locklear v. State, 50 Ala.App. 679, 282 So.2d 116 (1973).' Ex parte Evers, 434 So.2d 813, 817 (Ala.1983)." Ex parte Mutrie, 658 So.2d at 349. Finally, § 13A-1-6, Code of Alabama 1975, provides, in pertinent part, that: "All provisions of [the Criminal Code] shall be construed according to the fair import of their terms to promote justice and to effect the objects of the law...."

In Sheffield v. State, 708 So.2d 899 (Ala.Cr.App.1997), this court addressed the implications of § 13A-1-6, Code of Alabama 1975, as that section pertains to the construction of criminal statutes:

"The focus in § 13A-1-6 on the 'fair import of [a penal statute's] terms' is the legislature's manifestation of its 'preference for the meaning of the statute over legislative intent as a criterion of interpretation.' 2A N. Singer, Sutherland Statutory Construction § 45.07 (5th ed.1992). 'The reference to a ...