State of Alabama
from Jefferson Juvenile Court (JU-14-2504.01)
appeals from his adjudication as a delinquent based on the
offense of indecent exposure.
December 29, 2014, a petition was filed in the juvenile court
charging T.B.P. with delinquency based on the underlying
offense of indecent exposure. A trial before a referee was
conducted on July 23, 2015. The testimony at the hearing,
though contested by T.B.P., was that T.B.P. exposed his
genitals to his math teacher at his school during an
after-school tutoring session. The trial ended with the
referee pronouncing: "The charge is found true."
(R. 50.) Also, on July 23, 2015, the referee entered a
posttrial written order stating: "[C]harge found true.
Disposition withheld. Case set for 7/30/15 @ 1:30 p.m."
(C. 14.) On July 30, 2015, the referee entered his final
order disposing of the case that stated: "Child is
exempt from registering and notification. Case is
closed." (C. 15.) On August 10, 2015, T.B.P. filed
a postjudgment written "motion to alter, amend or
vacate, " alleging that the charging instrument was void
because it did not assert what T.B.P. contends was a
necessary element of the offense -- the element of the
victim's lack of consent. (C. 19.) On August 14, 2015,
the referee denied that motion. Also, on August 14, 2015,
T.B.P. filed a motion for a rehearing. The case was assigned
to a juvenile judge. On October 25, 2016, the juvenile court,
having listened to the July 23, 2015, recording from the
trial, affirmed the referee's finding of delinquency in a
written order, stating: "The Judgment of Referee is
hereby affirmed." (C. 35.) On November 7, 2016, T.B.P.
filed a written "motion for acquittal or for a new
trial." (C. 31.) In this motion T.B.P. alleged that the
charging instrument did not charge the element of the
victim's lack of consent; that T.B.P. "[w]as not
found to be in need of services of rehabilitation, and
therefore, the court should dismiss the proceedings, "
see §12-15-215(a), Ala. Code 1975; and, the court failed
to consider the lesser-included offense of public lewdness,
§ 13A-12-130, Ala. Code 1975. (C. 33.) T.B.P. filed
notice of appeal on November 29, 2016. On December 7, 2016,
the circuit court entered a written denial of the November 7,
conclusion of the State's case and again at the
conclusion of the defense case, T.B.P. moved for a judgment
of acquittal on the ground that T.B.P.'s charging
instrument was void because it did not assert what T.B.P.
contends was a necessary element of the offense -- the
element of the victim's lack of consent. The State
disputed the allegation and asserted that the claim should
have been raised before the hearing started.
13A-6-68, Ala. Code 1975, defines the crime of indecent
"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 to be seen
from such private premises."
The charging instrument asserted:
"On or about 12/08/2014 in the Birmingham Division of
Jefferson County, [T. B. P.] did, with intent to arouse or
gratify sexual desire of: (x) himself; or (x) a person not
his, to-wit: Ms. [J.M.] (teacher), expose his genitals under
circumstances in which he knew his conduct was likely to
cause affront or alarm: (x) in a public place, to-wit:
classroom of Shades Valley High School Room 214, in violation
of section 13A-006-068 of the Code of Alabama 1975."
we note that pursuant to Rule 12, Ala. R. Juv. P.,
delinquency proceedings are commenced by the filing of a
complaint followed by, where appropriate, the filing of a
petition, i.e., the charging instrument, in the juvenile
court. See generally, State v. Thomas, 550 So.2d
1067, 1072 (Ala. 1989)("The jurisdiction of the juvenile
court would attach only after a petition had been properly
filed with the intake officer, and the court had conducted a
preliminary inquiry to determine whether the child was within
the jurisdiction of the court." (footnote omitted)).
However, in Ex parte Seymour, 946 So.2d 536 (Ala.
2006), the Alabama Supreme Court held that the validity of a
formal charging instrument is irrelevant to a court's
"[Seymour] ... requires that a claim resting on
a challenge to an infirmity within the indictment be raised
in the trial court in order to obtain appellate review.
Seymour, states: 'The validity of Seymour's
indictment is irrelevant to whether the circuit court had
jurisdiction over the subject matter of this case.' 946
So.2d at 539."
D.H. v. State, 24 So.3d 1166, 1169
"'Under our holding in Seymour, a defect in
a criminal indictment no longer deprives the trial court of
jurisdiction, as it had under the common law, but instead is
a nonjurisdictional error that may be waived.' Ex
parte Jenkins, 992 So.2d 1248, 1250 (Ala. 2007)."
Gargis v. State, 998 So.2d 1092, 1099
(Ala.Crim.App.2007). Although the charging instrument here is
a juvenile petition, the rationale in Seymour
applies because the juvenile court had statutory authority to
try the offense. See § 12-15- 114(a), Ala. Code 1975
("A juvenile court shall exercise exclusive original
jurisdiction of juvenile court proceedings in which a child
is alleged to have committed a delinquent act, to be
dependent, or to be in need of supervision."); Ex
parte Seymour, 946 So.2d at 538 ("In deciding
whether Seymour's claim properly challenges the trial
court's subject-matter jurisdiction, we ask only whether
the trial court had the constitutional and statutory
authority to try the offense with which Seymour was charged
and as to which he has filed his petition for certiorari
review. ... [T]he State's prosecution of Seymour ... was
within the circuit court's subject-matter jurisdiction,
and a defect in the ...