G.V.C. v. State

132 So. 3d 668, 2013 WL 2458637, 2013 Ala. Crim. App. LEXIS 40
CourtCourt of Criminal Appeals of Alabama
DecidedJune 7, 2013
DocketCR-11-0476
StatusPublished
Cited by1 cases

This text of 132 So. 3d 668 (G.V.C. v. State) is published on Counsel Stack Legal Research, covering Court of Criminal Appeals of Alabama primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
G.V.C. v. State, 132 So. 3d 668, 2013 WL 2458637, 2013 Ala. Crim. App. LEXIS 40 (Ala. Ct. App. 2013).

Opinion

JOINER, Judge.

G.V.C. was tried on a single-count indictment charging first-degree sexual abuse, see § 13A-6-66, Ala.Code 1975, and was subsequently convicted. G.V.C. now appeals, arguing that a discrepancy between the indictment and the jury-verdict form— along with the trial court’s subsequent correction of the verdict form — require reversal of his conviction. We affirm.

In November 2011, G.V.C. was tried by way of a single-count indictment charging first-degree sexual abuse; specifically, the indictment charged that G.V.C. “did knowingly subject M.S. to sexual contact, to-wit: by fondling her breast with [his] hands, while the said M.S. was incapable of giving consent by reason of [being] physically helpless.” (C. 21.) At the beginning of [669]*669jury selection, the trial court read the indictment charging first-degree sexual abuse to the jury. (R. 15.) Following jury selection, the trial court explained the trial process to the jury and again informed the jury that the sole issue was “sexual abuse in the first degree” where “the victim is incapable of consent”; likewise, the trial court advised the jury that it would be instructed on “beyond a reasonable doubt and sexual abuse in the first degree” at the conclusion of trial. (R. 39-40.)

During its opening statement, the State discussed the elements of “sex abuse in the first degree” and the evidence it intended to present in support of the charge. (R. 43.) Likewise, in closing, the State argued that it had “met all the elements in the case” and urged the jury to convict G.V.C. “of sex abuse in the first degree.” (R. 160.) Similarly, during his closing argument, G.V.C.’s attorney discussed “sex abuse.” (R. 174.)

At the conclusion of trial, the jury was charged on first-degree sexual abuse. Specifically, the trial court charged the jury as follows:

“I’m going to charge you as to what is sexual abuse in the first degree, which is what he’s charged with. And you remember I read the indictment to you at the first and this is what it is. A person commits the crime of sexual abuse in the first degree if he subjects another person to sexual contact who is incapable of consent by reason of being physically helpless. To convict the State must prove beyond a reasonable doubt each of the following elements of sexual abuse in the first degree; number one, that the Defendant [G.V.C.] subjected [M.S.] to sexual contact, and that'[M.S.] was incapable of consent by reason of being physically helpless, and the Defendant must have acted knowingly, intentionally.”

(R. 185-86.)

Following the jury instructions, the trial court addressed the verdict form the jury would use to announce its decision; before giving the form to the jury, the trial court explained the two options on the form, stating that “[t]he first one says we find the Defendant guilty of sexual abuse in the first degree as charged in the indictment and signed by the foreman or we find the Defendant not guilty signed by the foreman.” (R. 187.)

The record indicates, however, that the trial court’s description of the verdict form to the jury was inaccurate. The verdict form, in fact, had the following two options: “We, the jury, find the defendant [G.V.C.] GUILTY of Sexual Assault 1st Degree as charged in the indictment” (emphasis added) or “We, the jury, find the defendant [G.V.C.] NOT GUILTY.” (C. 22.) The form was returned by the jury and read by the foreman in open court. (C. 22.) The trial court subsequently polled and discharged the jury.

Later on that same day, the trial court— recognizing that the verdict form referenced “sexual assault 1st degree” and not first-degree sexual abuse — sua sponte entered an order setting a hearing to correct the verdict form. (C. 13.) At the hearing, the following occurred:

“THE COURT: Now, [the State] is here. [Defense counsel] is here and [G.V.C.] ... is here, bring him out. Now, you know here, we even have the instigator of all this here. We tried the case for sex abuse, we charged on sex abuse, y’all argued on sex abuse and I feel like it was a typographical error that the verdict form said sexual assault, and that’s wrong.
“[Defense counsel]: Yes, sir.
[670]*670“THE COURT: Now, I think that Rule 29, Rules of Criminal Procedure, allows me to correct that but I want to hear from you, if you disagree or object, which I’m sure you do, and I’ll hear from [State’s attorney] and then I will make my decision.”
“[Defense counsel]: Yes, sir, Judge. We would object to changing the verdict form. When the jury went back they had a sexual assault first degree, that’s what they were looking at and that’s what they had to have discussed was sexual assault. They didn’t come out and ask a question why did you charge us on this and give us this verdict form, they didn’t do that. They just simply returned the verdict form. I think it’s very misleading because assault is different from abuse and the jury but of course anybody can understand an assault. Sexual abuse you might have to explain that but sexual assault you wouldn’t. So I would object to changing the verdict form at this late date and ask the Court for a new trial.
“THE COURT: I know. And I see exactly — I think we all see what has happened here, we all see there is a real issue here—
“THE COURT: — -and it will be probably be resolved by higher authority. So I’m going to allow the amendment. [State’s attorney], I want you to prepare a short order for me to sign and be sure and let [defense counsel] see it and when he says it’s okay then I’ll sign it. Then we’ll have the sentencing which is sometime that’s when we’ll see what we’re going to do and then we will take it up from there. Thank you both very much.”

(R. 195-96,199-200.)

Following the hearing, the trial court entered the following written order:

“The above-styled case came for trial on November 16, 2011, [G.V.C.] having been duly indicted and arraigned on the charge of Sex Abuse in the 1st Degree. The State of Alabama ... and [G.V.C.] ... presented evidence as to Sex Abuse in the 1st Degree. The respective parties did their respective closing arguments as to the charge of Sex Abuse in the 1st Degree. The Court instructed the jury on the charge of Sex Abuse in the 1st Degree. However, due to a mistake or inadvertence, the verdict form provided to the jury gave the jury the option of finding the defendant guilty or not guilty of ‘sexual assault in the 1st degree.’ The jury returned the verdict of guilty of ‘sexual assault in the 1st degree.’ When polled, each member of the jury confirmed that was their verdict.
“Notice of the clerical error was made to the State and [G.V.C.’s] Counsel. The Court notified the State and [G.V.C.’s] Counsel of its intention to correct the verdict form pursuant to [Rule 29, Ala. R.Crim. P.,] in open court on November 29, 2011.
“The Court, on its own motion, finds that the jury verdict form contained a clerical mistake arising from oversight or omission and must be corrected to conform to the indictment, the evidence, and the jury instructions. The corrected verdict form reads as follows: ‘We the jury find the Defendant, [G.V.C.], guilty of Sex Abuse in the 1st Degree as charged in the indictment.’ ”

(C. 17.)

On appeal, G.V.C.

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Bluebook (online)
132 So. 3d 668, 2013 WL 2458637, 2013 Ala. Crim. App. LEXIS 40, Counsel Stack Legal Research, https://law.counselstack.com/opinion/gvc-v-state-alacrimapp-2013.