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T.B.P. v. State

Alabama Court of Criminal Appeals

April 28, 2017

T.B.P.
v.
State of Alabama

         Appeal from Jefferson Juvenile Court (JU-14-2504.01)

          WELCH, Judge.

         T.B.P. appeals from his adjudication as a delinquent based on the offense of indecent exposure.

         On 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."[1] (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, 2016, motion.

         I.

         At the 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.

         Section 13A-6-68, Ala. Code 1975, defines the crime of indecent exposure:

"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."

(C. 6.)

         Initially, 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 subject-matter jurisdiction:

"[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 (Ala.Crim.App.2009).

"'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 ...


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