Hall v. State

203 So. 3d 1284, 2016 Ala. LEXIS 43
CourtSupreme Court of Alabama
DecidedMarch 25, 2016
Docket1150089
StatusPublished

This text of 203 So. 3d 1284 (Hall v. State) is published on Counsel Stack Legal Research, covering Supreme Court of Alabama primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Hall v. State, 203 So. 3d 1284, 2016 Ala. LEXIS 43 (Ala. 2016).

Opinions

MAIN, Justice.

We granted certiorari review to determine whether there was a fatal variance between the indictment, which charged James R. Hall with theft of “currency,” and the evidence produced at trial, which established theft of the funds by means of depositing a check. We conclude that there was no material variance in the indictment and the evidence, and we affirm the judgment of the Court of Criminal Appeals.

I. Facts and Procedural History

Hall was the “commander” of the Houston County chapter, Chapter 87, of the Disabled American Veterans (“the DAV”). In 2013, Hall had issued to himself a check from the DAV’s bank account in the amount of $1,500, purportedly to reimburse Hall for expenses incurred in the performance of his duties as commander. He deposited the check into his personal bank account. The expenditure, however, had not been approved by the DAV chapter and, therefore, violated the provisions of the DAV’s constitution and bylaws. [1285]*1285The DAV requested that Hall reimburse the funds to the DAV and provide the DAV with documentation supporting the alleged expenses. Hall failed to do so.

On February 20, 2014, a Houston County grand jury issued an indictment charging Hall with second-degree theft of property, a violation of § 13A-8-4, Ala.Code 1975. The indictment charged that Hall “did knowingly obtain ... control over United States Currency, the property of Disabled American Veterans Chapter 87, of the value which exceeds $500.00 but does not exceed $2500.00.” The case proceeded to trial. At the close of the State’s case, Hall moved for a judgment of acquittal on the ground that there was a fatal variance between the indictment, which alleged a theft of currency, and the evidence, which established that a check had been improperly taken. Hall’s motion was based on a line of decisions from this Court and the Court of Criminal Appeals that hold that “‘[a] fatal variance exists between an indictment alleging the theft of “lawful currency” and evidence showing the theft of [a check].’ ” Delevie v. State, 686 So.2d 1288, 1284 (Ala.Crim.App.1996) (quoting Shubert v. State, 488 So.2d 44, 46 (Ala.Crim.App.1986)). The trial court denied Hall’s motion. Hall was convicted of second-degree theft of property and was sentenced to two years’ imprisonment. The sentence was suspended, and Hall was placed on two years’ supervised probation. He appealed.

The Court of Criminal Appeals affirmed Hall’s conviction, concluding that this Court’s decision in Ex parte Roffler, 69 So.3d 225 (Ala.2010), effectively overruled those prior cases holding that a fatal variance existed between an indictment stating theft of currency and evidence establishing theft of a check. Hall v. State, 203 So.3d 1277 (Ala.Crim.App.2015). We granted certiorari review to determine whether the Court of Criminal Appeals correctly applied Roffler to this case.

II. Standard of Review

This case involves the application of law to undisputed facts, and this Court reviews pure questions of law in criminal cases de novo. Ex parte Walker, 928 So.2d 259, 262 (Ala.2005).

III. Analysis

This case concerns the fatal-variance rule. The Court of Criminal Appeals summarized that rule as follows:

“‘A fatal variance between allegations in an indictment and proof of those allegations presented at trial exists when the State fails to adduce any proof of a material allegation of the indictment or where the only proof adduced is contrary to a material allegation in the indictment. Johnson v. State, 584 So.2d 881, 884 (Ala.Crim.App.1991). “Alabama law requires a material variance between the indictment and the proof adduced at trial before a conviction will be overturned. Ex parte Collins, 385 So.2d 1005 (Ala.1980).” Brown v. State, 588 So.2d 551, 558 (Ala.Crim.App.1991).’
“Bigham v. State, 23 So.3d 1174, 1177 (Ala.Crim.App.2009).
“ ‘ “The policy behind the variance rule is that the accused should have sufficient notice to enable him to defend himself at trial on the crime for which he has been indicted and proof of a different crime or the same crime under a different set of facts deprives him of that notice to which he is constitutionally entitled.” House [v. State], 380 So.2d [940] at 942 [ (Ala.Crim.App.1989) ]. “Not every variance is fatal. Berger v. United States, 295 U.S. 78, 55 S.Ct. 629, 79 L.Ed. 1314 (1935). Reviewing a claim of variance requires use of a two step [1286]*1286analysis: (1) was there in fact a variance between the indictment and proof, and (2) was the variance prejudicial.” United States v. McCrary, 699 F.2d 1308, 1310 (11th Cir.1983). “The true inquiry, therefore, is not whether there has been a variance in proof, but whether there has been such a variance as to ‘affect the substantial rights’ of the accused.” Berger, 295 U.S. at 82, 55 S.Ct. at 630. “Variance from the indictment is not always prejudicial nor is prejudice assumed.” United States v. Womack, 654 F.2d 1034, 1041 (5th Cir.1981), cert. denied, 454 U.S. 1156, 102 S.Ct. 1029, 71 L.Ed.2d 314 (1982). The determination of whether a variance affects the defense will have to be made based upon the facts of each case. United States v. Pearson, 667 F.2d 12, 15 (5th Cir.1982).’
“Smith v. State, 551 So.2d 1161, 1168-69 (Ala.Crim.App.1989),”

Hall, 203 So.3d at 1281.

In Ex parte Airhart, 477 So.2d 979, 980-81 (Ala.1985), this Court held that a fatal variance existed when the charge pertained to “currency,” but the proof established unauthorized control over “checks.” This principle has been restated repeatedly by the Court of Criminal Appeals. See, e.g., Harrison v. State, 13 So.3d 45, 48 (Ala.Crim.App.2009)(“[T]he indictment charged theft of currency, but the evidence at trial established unauthorized control over a check. Thus, there was a fatal variance between the indictment and the evidence presented at trial.”); Delevie v. State, 686 So.2d at 1285 (“Here, there was a fatal variance between the indictment alleging that the appellant stole $2,550 currency and the proof of a theft of a check for that amount.”); and Henderson v. State, 520 So.2d 169, 170 (Ala.Crim.App.1987)(“[T]here is a fatal variance when the charge involves ‘currency’ and the evidence establishes -‘checks’.... ”). Hall contends that the Court of Criminal Appeals’ decision in his case is in conflict with those prior decisions. The State, on the other hand, urges us to' hold, as did the Court of Criminal Appeals, that those pri- or decisions were overruled by this Court’s decision in Ex parte Roffler.

In Roffler we considered the issue whether in the 21st century an indictment charging theft of a certain dollar amount of funds was legally sufficient if it identified the dollar amount of the funds taken, but not the medium of exchange of those funds.

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Related

Washington & Georgetown Railroad v. Hickey
166 U.S. 521 (Supreme Court, 1897)
Berger v. United States
295 U.S. 78 (Supreme Court, 1935)
United States v. James A. Womack
654 F.2d 1034 (Fifth Circuit, 1981)
United States v. Mose Franklin Pearson
667 F.2d 12 (Fifth Circuit, 1982)
United States v. Billy Ray McCrary
699 F.2d 1308 (Eleventh Circuit, 1983)
State of Tennessee v. Perry A. March
293 S.W.3d 576 (Court of Criminal Appeals of Tennessee, 2008)
Johnson v. State
584 So. 2d 881 (Court of Criminal Appeals of Alabama, 1991)
Thompson v. State
542 So. 2d 1286 (Court of Criminal Appeals of Alabama, 1988)
Ex Parte Washington
448 So. 2d 404 (Supreme Court of Alabama, 1984)
Smith v. State
551 So. 2d 1161 (Court of Criminal Appeals of Alabama, 1989)
Bartel v. State
414 S.E.2d 689 (Court of Appeals of Georgia, 1992)
State v. Walston
536 S.E.2d 630 (Court of Appeals of North Carolina, 2000)
Bigham v. State
23 So. 3d 1174 (Court of Criminal Appeals of Alabama, 2009)
Harrison v. State
13 So. 3d 45 (Court of Criminal Appeals of Alabama, 2009)
Shubert v. State
488 So. 2d 44 (Court of Criminal Appeals of Alabama, 1986)
Ex Parte Airhart
477 So. 2d 979 (Supreme Court of Alabama, 1985)
Ex Parte Collins
385 So. 2d 1005 (Supreme Court of Alabama, 1980)
Brown v. State
588 So. 2d 551 (Court of Criminal Appeals of Alabama, 1991)
Henderson v. State
520 So. 2d 169 (Court of Criminal Appeals of Alabama, 1988)
Ex Parte Walker
928 So. 2d 259 (Supreme Court of Alabama, 2005)

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Bluebook (online)
203 So. 3d 1284, 2016 Ala. LEXIS 43, Counsel Stack Legal Research, https://law.counselstack.com/opinion/hall-v-state-ala-2016.