Scott v. State

• Citation: 917 So.2d 159
• Decision Date: 17 June 2005
• Docket Number: CR-03-1202.
• Parties: Raymond Keith SCOTT v. STATE of Alabama.
• Court: Supreme Court of Alabama

917 So.2d 159

Raymond Keith SCOTT v. STATE of Alabama.

CR-03-1202.

Court of Criminal Appeals of Alabama.

April 29, 2005.

Rehearing Denied June 17, 2005.

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T. Jefferson Deen III, Mobile, for appellant.

Troy King, atty. gen., and Nancy M. Kirby, deputy atty. gen., for appellee.

PER CURIAM.

Raymond Keith Scott entered Alford¹ "best interest" pleas of guilty to two charges of showing or allowing to be shown for entertainment purposes female genitals, pubic area, or buttocks with less than a fully opaque covering, or female breasts with less than a fully opaque covering of any portion thereof below the top of the nipple, violations of § 13A-12-200.11, Ala.Code 1975.² He was sentenced to five years' imprisonment for each conviction, to run concurrently; the sentences were split, and he was ordered to serve one year and one day in prison, followed by three years on supervised probation.³

Before entering his pleas, Scott expressly reserved the right to appeal the following issues: (1) whether the factual basis for the pleas was sufficient; (2) whether the trial court erred in denying his motion to dismiss the indictments against him on the ground of multiplicity; and (3) whether the trial court erred in denying his motion to declare § 13A-12-200.11 unconstitutionally vague.

Section 13A-12-200.11 provides:

"It shall be unlawful for any business establishment or any private club to show or allow to be shown for entertainment purposes the human male or female genitals, pubic area, or buttocks with less than a fully opaque covering, or the showing of the female breast with less than a fully opaque covering of any portion thereof below the top of the nipple, or the depiction of covered male genitals in a discernibly turgid state. A violation of this section shall be a Class C felony.

"If a person is held under this section in the county jail, one-half of any fines collected and due to be deposited to the State General Fund for violations of this section shall be paid by the Comptroller to the general fund of the county where the person is held for the operation of the county jail."

Scott was charged in two separate indictments as follows:

"The grand jury of said county charge that, before the finding of this indictment, Raymond Keith Scott, whose name is to the grand jury otherwise unknown than as stated, did on our about December 19, 2000, as a whole or part owner or manager or otherwise in control of the business establishment, X-Citing Tan, unlawfully show or allow to be shown for entertainment purposes the human male or female genitals and/or pubic area and/or buttocks with less than a fully opaque covering and/or the showing of the female breast with less than a fully opaque covering of any portion thereof below the top of the nipple, in violation of Section 13A-12-200.11 of the Code of Alabama, against the peace and dignity of the State of Alabama."

(C. 36.)

"The grand jury of said county charge that, before the finding of this indictment, Raymond Keith Scott, whose name is to the grand jury otherwise unknown than as stated, did on or about January 10, 2001, as whole or part owner or manager or otherwise in control of the business establishment, X-Citing Tan, unlawfully show or allow to be shown for entertainment purposes the human male or female genitals and/or pubic area and/or buttocks with less than a fully opaque covering and/or the showing of the female breast with less than a fully opaque covering of any portion thereof below the top of the nipple, in violation of Section 13A-12-200.11 of the Code of Alabama, against the peace and dignity of the State of Alabama."

(C. 37.)

I.

Scott contends that the State failed to present a sufficient factual basis to support his pleas of guilty.

Initially, we note that Scott's argument in this regard does not comply with Rule 28(a)(10), Ala.R.App.P., which requires that an argument contain "the contentions of the appellant with respect to the issues presented, and the reasons therefor, with citations to the cases, statutes, other authorities, and parts of the record relied on." Scott cites no relevant legal authority. "[W]e are not required to consider matters on appeal unless they are presented and argued in brief with citations to relevant legal authority." Zasadil v. City of Montgomery, 594 So.2d 231, 231 (Ala.Crim.App. 1991). See also Hamm v. State, 913 So.2d 460, 486 (Ala.Crim.App. 2002) (Rule 28(a)(10), Ala.R.App.P., "requires parties to include in their appellate briefs an argument section with citations to relevant legal authorities and to portions of the record relied on in their claims for relief."). Therefore, this issue is deemed to be waived.

However, even if this issue were properly before this Court for review, we would conclude that it is meritless. The prosecutor provided the following statement of facts underlying the charges:

"Raymond Keith Scott is listed as the owner on State revenue records for X-Citing Tans, located at 3698-B Airport Boulevard. Eric Langan is listed as the owner of X-Citing Tans on City revenue records.

"On December 19, 2000, Corporal Meynard went into the business identified as X-Citing Tans, located at 3698-B Airport Blvd. in an undercover status. Once inside the building, Corporal Meynard met with a white female subject identified as Trinity. This subject advised Corporal Meynard that he would have to pay a $40.00 room fee, $20.00 for her to get totally nude plus tip her. Corporal Meynard agreed to the price, paid her the $40.00 and was led into a separate room. Trinity left the room and told him to get comfortable, and, after approximately five minutes, she returned and told him the rules, that he could not touch her on her breast, vagina, or the crack of her behind. She turned on a portable CD player and started dancing in an erotic manner. While she was dancing, she stated that she could only get as comfortable as he did. Corporal Meynard unbuttoned his shirt and pants and she responded by exposing her breast and continued dancing until the time was up. She then asked for the $20.00, which he paid and left the business.

"On January 10, 2001, Corporal Meynard went in the listed business and met with another white female subject who identified herself as Alaine. This subject asked if Corporal Meynard wanted to get a session. He asked her how much a toy show would cost, and she responded $40.00 in addition to the $40.00 room fee and $20.00 nudity fee for a total of $100.00. He paid her $40.00 in the lobby and was led to a separate room where she began dancing and removed all her clothing. After dancing for awhile, she pulled a chair in front of Corporal Meynard, sat down and took out a plastic sex toy in the shape of a male penis. The subject then began to masturbate in front of him using the sex toy until the time was up. Corporal Meynard paid her the additional $60.00 and left the business."

(R. 52-54.)⁴

Scott argues that because he was listed as the owner of the club only on State revenue records while another individual was listed as the owner on the revenue records of the City of Mobile and because there was no indication that he was actually involved in the management or supervision of X-Citing Tans, a reasonable inference could have been drawn that he was nothing more than "an absentee landlord." (Scott's brief at p. 17.) He also argues that the prosecutor's factual basis contained no mention of a culpable mental state and, thus, that it was insufficient to provide a basis for his convictions. Finally, with respect to the December 19, 2000, event, he argues that there was no showing that the dancer who exposed her breast did so in a manner that violated the statute as charged in the indictment, i.e., "with less than a fully opaque covering or any portion thereof below the top half of the nipple." (Scott's brief at p. 17.)

Rule 14.4(b), Ala.R.Crim.P., provides that "[n]otwithstanding the acceptance of a plea of guilty, the court shall not enter a judgment upon such plea without being satisfied that there is a factual basis for the plea." "The purpose of requiring the trial judge to determine that there is a factual basis for the plea `is to ensure the accuracy of the plea through some evidence that a defendant actually committed the offense.'" Alderman v. State, 615 So.2d 640, 647 (Ala.Crim.App. 1992), quoting United States v. Keiswetter, 860 F.2d 992, 995 (10th Cir. 1988), remand order withdrawn and plea vacated on rehearing, 866 F.2d 1301 (10th Cir. 1989) (en banc). "`The only factual basis required for a guilty plea is that which will satisfy the court that the appellant knows what he is pleading guilty to.'" Alderman, 615 So.2d at 647, quoting Garner v. State, 455 So.2d 939, 940 (Ala.Crim.App. 1984). "`The factual basis [can be] established, in part, by the appellant's admission that he knew to what offense he was pleading guilty.'" Speigner v. State, 663 So.2d 1024, 1027 (Ala.Crim.App. 1994), quoting Jones v. State, 492 So.2d 642, 645 n. 3 (Ala.Crim.App. 1986). Likewise, "the reading of the indictment [is] sufficient to establish a factual basis for a guilty plea in certain cases, [and] in those cases it is not required that the indictment be read into the record during the guilty plea hearing." Alvis v. State, 740 So.2d 459, 461 (Ala.Crim.App. 1998).

It is clear from our review of the record that Scott was aware of the nature and elements of the charges against him and that he knew exactly what he was pleading guilty to. At arraignment, Scott waived the reading of the indictments and entered pleas of not guilty; thus, he was charged with knowledge of the contents of the indictments. See, e.g., Alexander v. State, 488 So.2d 41, 44 (Ala.Crim.App. 1986) ("When a defendant waives the reading of an indictment at his arraignment, he is nonetheless charged with knowledge of its contents."). Both indictments alleged that Scott was "in control" of...