Opinion
CR–09–1148.
2011-10-28
Hope Elisabeth ANKROM v. STATE of Alabama.
Carmen F. Howell and Paul A. Young, Jr., Enterprise, for appellant. Troy King and Luther Strange, attys. gen., and Cecil G. Brendle, Jr., asst. atty. gen., for appellee.
Affirmed.
Welch, P.J., filed an opinion concurring in the result and dissenting in part, in which Windom, J., concurred.
Windom, J., filed an opinion concurring in the result and dissenting in part.
Affirmed, Ala., 152 So.3d 397.
Carmen F. Howell and Paul A. Young, Jr., Enterprise, for appellant. Troy King and Luther Strange, attys. gen., and Cecil G. Brendle, Jr., asst. atty. gen., for appellee.
Mary Bauer, Southern Poverty Law Center, Montgomery; Tamar Todd, Drug Policy Alliance, Office of Legal Affairs, Berkeley, California; and Emma S. Ketteringham and Lynn Paltrow, National Advocates for Pregnant Women, New York, New York, for amici curiae Southern Poverty Law Center, Drug Policy Alliance, and National Advocates for Pregnant Women, in support of the appellant.
BURKE, Judge.
Hope Elisabeth Ankrom pleaded guilty to chemical endangerment of a child, a violation of § 26–15–3.2, Ala.Code 1975. The trial court sentenced Ankrom to three years in prison, but the court suspended that sentence and placed her on one year of supervised probation. Ankrom appealed her conviction. We affirm.
Facts and Procedural History
At the guilty-plea hearing, the parties stipulated to the following facts:
“On January 31, 2009, the defendant, Hope Ankrom, gave birth to a son, [B.W.], at Medical Center Enterprise. Medical records showed that the defendant tested positive for cocaine prior to giving birth and that the child tested positive for cocaine after birth.
“Department of Human Resources worker Ashley Arnold became involved and developed a plan for the care of the child. During the investigation the defendant admitted to Ashley that she had used marijuana while she was pregnant but denied using cocaine.
“Medical records from her doctor show that he documented a substance abuse problem several times during her pregnancy and she had tested positive for cocaine and marijuana on more than one occasion during her pregnancy.”
On February 18, 2009, Ankrom was arrested and charged with chemical endangerment of a child. On August 25, 2009, the grand jury indicted Ankrom. The indictment stated that Ankrom “did knowingly, recklessly, or intentionally cause or permit a child, to-wit: [B.W.], a better description of which is to the Grand Jury otherwise unknown, to be exposed to, to ingest or inhale, or to have contact with a controlled substance, chemical substance, or drug paraphernalia as defined in Section 13A–12–260 of the Code of Alabama, 1975, to-wit: Cocaine, in violation of Section [26–15–3.2(a)(1) ].”
On September 25, 2009, Ankrom filed a motion styled as a “Motion to Dismiss Indictment.” In that motion, after setting forth the facts, Ankrom argued that “[t]he plain language of [§ 26–15–3.2, Ala.Code 1975,] shows that the legislature intended for the statute to apply only to a child, not a fetus”; that “courts in other states which have enacted the same or similar chemical endangerment statutes have determined that such statutes do not apply to prenatal conduct that allegedly harms a fetus”; that “[t]he state's contention that the defendant violated this statute renders the law impermissibly vague, and therefore the rule of lenity applies”; that “[t]he legislature has previously considered amending the statute to include prenatal conduct that harms a fetus, and declined to do so”; that “the defendant has not been accorded due process because there was no notice that her conduct was illegal under this statute”; that “[t]he prosecution of pregnant women is a violation of the constitutional guarantee of Equal Protection”; and that “[p]rosecution of pregnant, allegedly drug-addicted women is against public policy for numerous moral and ethical reasons.” The State responded to that motion on October 13, 2009. In the State's response, it agreed that on January 31, 2009, Ankrom gave birth to a son and that medical records showed that Ankrom tested positive for cocaine immediately prior to giving birth and that the child tested positive for cocaine after birth. Based on that conduct, the State argued that prosecution of Ankrom was proper under § 26–15–3.2, Ala.Code 1975. On October 15, 2009, the trial court denied Ankrom's motion.
On April 1, 2010, Ankrom pleaded guilty to a violation of § 26–15–3.2(a)(1), Ala.Code 1975. (R. 1–14.) At the guilty-plea hearing, before entering her plea, Ankrom reserved an issue for appellate review, in the following exchange:
“The Court: All right. Should your plea be one of guilty—and I will go over the possibilities. But should your plea be one of guilty, will you be reserving any issues for appeal?
“[Defense counsel]: Yes, sir.
“The Court: Okay. And do you wish to specify what that issue or what those issues would be?
“[Defense counsel]: Yes, sir. On September the 25th of 2009, I filed a motion to dismiss the indictment against Ms. Ankrom predicated upon the fact that the facts as related are going to be stipulated to the Court and they were recited in the motion to dismiss the indictment. Those facts do not assert an offense against her. The law under which she's charged; 26–15–3.2, Code of Alabama 1975, are inapplicable to—isn't applicable to the facts of this case.
“The Court: Okay.
“[Defense Counsel]: That's the issue we are reserving.”
Discussion
Ankrom alleges that based on the facts of this case, she cannot be convicted of violating § 26–15–3.2(a)(1), Ala.Code 1975. Her allegation presents a question of first impression for this Court. Specifically, the issue before this Court is whether a mother who ingested a controlled substance during her pregnancy, may be prosecuted under § 26–15–3.2(a)(1), Ala.Code 1975, if at birth the infant tests positive for the controlled substance. We answer that legal question in the affirmative, and we conclude that based on the facts of this case, Ankrom's conviction was proper.
Initially, we note that in Doseck v. State, 8 So.3d 1024 (Ala.Crim.App.2008), this Court declined to review the merits of a similar issue because the issue had been improperly raised in the trial court by way of a motion to dismiss. This Court held that Rule 13.5(c)(1), Ala. R.Crim. P., does not permit dismissal of an indictment based on the insufficiency of the evidence and that no other “Rule of Criminal Procedure ... provides a mechanism for a pretrial challenge to the sufficiency of the evidence.” Doseck, 8 So.3d at 1025.
In the present case, Ankrom's attorney referenced the indictment when reserving the issue for review and styled the pleading as a “Motion to Dismiss Indictment.” However, the motion was obviously mislabeled, because it did not challenge the validity of the indictment. Rather, Ankrom's motion and argument forthrightly raised the issue whether her conduct, as a matter of law, constituted a violation of § 26–15–3.2, Ala.Code 1975, the offense charged in the indictment. The trial court was clearly on notice of this legal issue, interpreted the language of the statute to encompass Ankrom's conduct, and accepted Ankrom's reservation of the issue for appellate review. The State did not object to the reservation of this issue.
Procedurally, Doseck appears to be nearly identical to the present case and, if followed, would require this Court to hold that Ankrom's claim is not properly before this Court for review. However, upon reexamining Doseck, we now believe that this decision conflicts with established precedent from the Alabama Supreme Court, such as Ex parte Deramus, 882 So.2d 875 (Ala.2002). In Ex parte Deramus, the Alabama Supreme Court held:
We note that Doseck is based entirely upon three prior decisions: State v. Foster, 935 So.2d 1216 (Ala.Crim.App.2005); State v. Edwards, 590 So.2d 379 (Ala.Crim.App.1991); and State v. McClain, 911 So.2d 54 (Ala.Crim.App.2005). Those three prior decisions are easily distinguishable from the present case, because in all of them: 1) there was no pure question of law for the court to decide; 2) there was no stipulation of facts by the State and the defendant; 3) the State did not consent to a ruling by the court on the issue presented; and 4) it appears that the State desired to present its evidence at trial. Foster, 935 So.2d at 1216; Edwards, 590 So.2d at 380; McClain, 911 So.2d at 55–56.
“Indeed, the mere mislabeling of a motion is not fatal. King Mines Resort, Inc. v. Malachi Mining & Minerals, Inc., 518 So.2d 714, 718 (Ala.1987). This Court has stated that it is ‘committed to the proposition that it will treat a motion (or other pleading) and its assigned grounds according to its substance.’ King Mines Resort, 518 So.2d at 718; see also Lockhart v. Phenix City Inv. Co., 488 So.2d 1353 (Ala.1986), and Sexton v. Prisock, 495 So.2d 581 (Ala.1986). Further, the Court has held that ‘[t]he substance of a motion and not its style determines what kind of motion it is.’ Evans v. Waddell, 689 So.2d 23, 26 (Ala.1997).”
882 So.2d at 875. This Court has subsequently followed the teachings of Ex parte Deramus on numerous occasions in different contexts. See, e.g., Ferguson v. State, 13 So.3d 418 (Ala.Crim.App.2008) (treating motion to modify sentence as an amended Rule 32, Ala. R.Crim. P., petition for postconviction relief); Ex parte Mitchell, 936 So.2d 1094 (Ala.Crim.App.2006) (treating petition for a writ of mandamus as a petition for a writ of habeas corpus); Ex parte Bridges, 905 So.2d 32 (Ala.Crim.App.2005) (treating petition for a writ of mandamus as a petition for a writ of prohibition); and Bulger v. State, 904 So.2d 219 (Ala.Crim.App.2004) (treating Rule 32, Ala. R.Crim. P., petition for postconviction relief as a motion to reconsider sentence under § 13A–5–9.1, Ala.Code 1975).
In his dissent in Doseck, then Judge Shaw explained:
Judge Shaw is now an Associate Justice on the Alabama Supreme Court.
“I agree with the majority that a motion to dismiss an indictment is not the proper avenue for challenging the sufficiency of the evidence. However, the majority fails to acknowledge the well settled principal that ‘[t]he substance of a motion and not its style determines what kind of motion it is.’ Evans v. Waddell, 689 So.2d 23, 24 (Ala.1997). See also Boykin v. Law, 946 So.2d 838 (Ala.2006) (treating a motion to dismiss as a motion to set aside a void judgment under Rule 60(b), Ala. R. Civ. P.); Stabler v. City of Mobile, 844 So.2d 555 (Ala.2002) (treating motion to dismiss as a motion for summary judgment); and Ex parte S.W.T., 782 So.2d 766, 767 (Ala.2000) (treating a motion requesting ‘ “an enlargement of time in which to file a post-trial motion” ’ as a motion requesting an extension of time for an appeal pursuant to Rule 77(d), Ala. R. Civ. P.). The fact that Jeffery Richard Doseck's pretrial motion challenging whether his actions constituted felony escape was styled as a ‘Motion to Dismiss' is not dispositive of this appeal, as the majority concludes.
“Although Doseck's motion was styled as a motion to dismiss, and in it Doseck requested dismissal of the indictment against him, as Doseck noted in his rebuttal to the State's response to his motion, ‘[t]he issue is whether or not an individual who violates the conditions of work release [by not returning to his work-release facility as scheduled] can be charged with [and convicted of] a felony when that individual is at work release due to misdemeanor convictions.’ (C. 9.) Doseck admitted in his motion that he failed to return to his work-release facility at his scheduled time, i.e., he stipulated to the facts as alleged by the State. The only issue presented to the trial court was purely a question of law—whether Doseck's undisputed actions constituted felony escape or misdemeanor escape. See, e.g., Ex parte J.C.C., 4 So.3d 1188 (Ala.2008). The trial court, in denying Doseck's motion, effectively ruled that, as a matter of law, his actions constituted felony escape and not misdemeanor escape, and Doseck properly reserved that ruling of law for review on appeal during the guilty-plea colloquy. I would not penalize Doseck for not styling his motion properly when the pure question of law presented to this Court was properly presented to the trial court, ruled on by the trial court, and properly reserved for appellate review.”
Doseck, 8 So.3d at 1026 (Shaw, J., dissenting).
We agree with Judge Shaw's dissent, and we now hold that, in circumstances such as those presented in this case and in Doseck—where a pure question of law as to whether an accused's actions constitute a violation of the statute he or she is charged with violating is properly presented to the trial court, ruled on by the trial court, and properly reserved for appeal during the guilty-plea colloquy—the appellant should not be penalized for raising that question of law in an improperly styled pleading, such as in a motion to dismiss the indictment. To hold otherwise would result in legally meritless cases being sent to trial and would waste precious judicial resources. Additionally, it is important to note that the State and Ankrom presented this legal issue fully to the trial court. Further, all parties were clearly aware of the question presented to, and ruled upon, by the trial court. It would be procedural folly for our Court to now refuse to consider the merits of this issue. To the extent that this Court's opinion in Doseck held otherwise, it is hereby overruled. Moreover, Ankrom raised this specific issue orally during the guilty-plea proceeding and thereafter reserved it for review.
Turning to the merits of the present case, § 26–15–3.2(a)(1), Ala.Code 1975, provides:
“(a) A responsible person commits the crime of chemical endangerment of exposing a child to an environment in which he or she does any of the following:
“(1) Knowingly, recklessly, or intentionally causes or permits a child to be exposed to, to ingest or inhale, or to have contact with a controlled substance, chemical substance, or drug paraphernalia as defined in Section 13A–12–260. A violation under this subdivision is a Class C felony.”
Ankrom alleges that the term “child” in § 26–15–3.2, Ala.Code 1975, does not include a viable fetus. The State responds that the plain meaning of the term “child,” as used in the statute, includes an unborn child.
“Principles of statutory construction instruct this Court to interpret the plain language of a statute to mean exactly what it says and to engage in judicial construction only if the language in the statute is ambiguous.” Ex parte Pratt, 815 So.2d 532, 535 (Ala.2001). “[T]he fundamental rule [is] that criminal statutes are construed strictly against the State.” Ex parte Hyde, 778 So.2d 237, 239 n. 2 (Ala.2000). “The ‘rule of lenity requires that “ambiguous criminal statute[s] ... be construed in favor of the accused.” ’ ” Ex parte Bertram, 884 So.2d 889, 892 (Ala.2003) (quoting Castillo v. United States, 530 U.S. 120, 131, 120 S.Ct. 2090, 147 L.Ed.2d 94 (2000)).
“Although penal statutes are to be strictly construed, courts are not required to abandon common sense. United States v. Green, 446 F.2d 1169, 1173 (5th Cir.1971). Absent any indication to the contrary, the words must be given their ordinary and normal meaning. Day v. State, 378 So.2d 1156, 1158 (Ala.Cr.App.), reversed on other grounds, 378 So.2d 1159 (Ala.1979).”
Walker v. State, 428 So.2d 139, 141 (Ala.Crim.App.1982).
The legislature has stated that “[t]he public policy of the State of Alabama is to protect life, born, and unborn. This is particularly true concerning unborn life that is capable of living outside the womb.” § 26–22–1(a), Ala.Code 1975. Chapter 15 of Title 26, Ala.Code 1975, does not define the term “child.” However, Chapters 14 and 16 of Title 26, Ala.Code 1975, define a “child” as a “person” under the age of 18 years. § 26–14–1(3), Ala.Code 1975; § 26–16–2(1), Ala.Code 1975.
Also, the Alabama Supreme Court has interpreted the term “minor child” in Alabama's wrongful-death-of-minor statute to include a viable fetus that received prenatal injuries causing death before a live birth. Eich v. Town of Gulf Shores, 293 Ala. 95, 300 So.2d 354 (1974). Specifically, the Court held that “the parents of an eight and one-half month old stillborn fetus [are] entitled to maintain an action for the wrongful death of the child”; thus, the Court explicitly recognized the viable fetus as a “child.” Eich, 293 Ala. at 100, 300 So.2d at 358.
Furthermore, the dictionary definition of a word provides the meaning ordinary people would give the word. Carpet Installation & Supplies of Glenco v. Alfa Mut. Ins. Co., 628 So.2d 560, 562 (Ala.1993). According to Merriam–Webster's Collegiate Dictionary 214 (11th ed.2003), the word “child” is defined as “an unborn or recently born person.” The word “child” is defined in Black's Law Dictionary 254 (8th ed.2004), as “[a] baby or fetus.”
The present case is similar to the situation in Whitner v. State, 328 S.C. 1, 492 S.E.2d 777 (1997). We find the reasoning of the South Carolina Supreme Court in that case to be persuasive.
In Whitner, a mother pleaded guilty to criminal child neglect, a violation of S.C.Code Ann. § 20–7–50 (1985), for causing her baby to be born with cocaine metabolites in its system by reason of the mother's ingestion of crack cocaine during the third trimester of her pregnancy. On appeal, the South Carolina Supreme Court held that the mother had been properly convicted of the charge. S.C.Code Ann. § 20–7–50 (1985), provided in relevant part: “Any person having the legal custody of any child ..., who shall, without lawful excuse, refuse or neglect to provide ... the proper care and attention for such child ..., so that the life, health or comfort of such child ... is endangered or is likely to be endangered, shall be guilty of a misdemeanor and shall be punished within the discretion of the circuit court.” Whitner, 328 S.C. at 5, 492 S.E.2d at 779. The issue on appeal was whether that statute encompassed maternal acts that endanger or were likely to endanger the life, health, or comfort of a viable fetus. Id. The Court stated that
“[u]nder [South Carolina's] Children's Code, ‘child’ means a ‘person under the age of eighteen.’ S.C.Code Ann. § 20–7–30(1) (1985). The question for this Court, therefore, is whether a viable fetus is a ‘person’ for purposes of the Children's Code.”
328 S.C. at 6, 492 S.E.2d at 779.
The South Carolina Supreme Court held that a viable fetus is a child under S.C.Code Ann. § 20–7–50 (1985), reasoning:
“South Carolina law has long recognized that viable fetuses are persons holding certain legal rights and privileges. In 1960, this Court decided Hall v. Murphy, 236 S.C. 257, 113 S.E.2d 790 (1960). That case concerned the application of South Carolina's wrongful death statute to an infant who died four hours after her birth as a result of injuries sustained prenatally during viability. The Appellants argued that a viable fetus was not a person within the purview of the wrongful death statute, because, inter alia, a fetus is thought to have no separate being apart from the mother.
“We found such a reason for exclusion from recovery ‘unsound, illogical and unjust,’ and concluded there was ‘no medical or other basis' for the ‘assumed identity’ of mother and viable unborn child. Id. at 262, 113 S.E.2d at 793. In light of that conclusion, this Court unanimously held: ‘We have no difficulty in concluding that a fetus having reached that period of prenatal maturity where it is capable of independent life apart from its mother is a person.’ Id. at 263, 113 S.E.2d at 793 (emphasis added).
“Four years later, in Fowler v. Woodward, 244 S.C. 608, 138 S.E.2d 42 (1964), we interpreted Hall as supporting a finding that a viable fetus injured while still in the womb need not be born alive for another to maintain an action for the wrongful death of the fetus.
“ ‘Since a viable child is a person before separation from the body of its mother and since prenatal injuries tortiously inflicted on such a child are actionable, it is apparent that the complaint alleges such an “act, neglect or default” by the defendant, to the injury of the child....
“ ‘....
“ ‘ Once the concept of the unborn, viable child as a person is accepted, we have no difficulty in holding that a cause of action for tortious injury to such a child arises immediately upon the infliction of the injury.’
“ Id. at 613, 138 S.E.2d at 44 (emphasis added). Fowler makes particularly clear that Hall rested on the concept of the viable fetus as a person vested with legal rights.
“More recently, we held the word ‘person’ as used in a criminal statute includes viable fetuses. State v. Horne, 282 S.C. 444, 319 S.E.2d 703 (1984), concerned South Carolina's murder statute, S.C.Code Ann. § 16–3–10 (1976). The defendant in that case stabbed his wife, who was nine months' pregnant, in the neck, arms, and abdomen. Although doctors performed an emergency caesarean section to deliver the child, the child died while still in the womb. The defendant was convicted of voluntary manslaughter and appealed his conviction on the ground South Carolina did not recognize the crime of feticide.
“This Court disagreed. In a unanimous decision, we held it would be ‘grossly inconsistent ... to construe a viable fetus as a “person” for the purposes of imposing civil liability while refusing to give it a similar classification in the criminal context.’ Id. at 447, 319 S.E.2d at 704 (citing Fowler v. Woodward, supra). Accordingly, the Court recognized the crime of feticide with respect to viable fetuses.
“Similarly, we do not see any rational basis for finding a viable fetus is not a ‘person’ in the present context. Indeed, it would be absurd to recognize the viable fetus as a person for purposes of homicide laws and wrongful death statutes but not for purposes of statutes proscribing child abuse. Our holding in Hall that a viable fetus is a person rested primarily on the plain meaning of the word ‘person’ in light of existing medical knowledge concerning fetal development. We do not believe that the plain and ordinary meaning of the word ‘person’ has changed in any way that would now deny viable fetuses status as persons.
“The policies enunciated in the Children's Code also support our plain meaning reading of ‘person.’ S.C.Code Ann. § 20–7–20(C) (1985), which describes South Carolina's policy concerning children, expressly states: ‘It shall be the policy of this State to concentrate on the prevention of children's problems as the most important strategy which can be planned and implemented on behalf of children and their families.’ (emphasis added). The abuse or neglect of a child at any time during childhood can exact a profound toll on the child herself as well as on society as a whole. However, the consequences of abuse or neglect which takes place after birth often pale in comparison to those resulting from abuse suffered by the viable fetus before birth. This policy of prevention supports a reading of the word ‘person’ to include viable fetuses. Furthermore, the scope of the Children's Code is quite broad. It applies ‘to all children who have need of services.’ S.C.Code Ann. § 20–7–20(B) (1985) (emphasis added). When coupled with the comprehensive remedial purposes of the Code, this language supports the inference that the legislature intended to include viable fetuses within the scope of the Code's protection.”
Whitner, 328 S.C. at 6–8, 492 S.E.2d at 779–81.
Likewise, in the present case, we do not see any reason to hold that a viable fetus is not included in the term “child,” as that term is used in § 26–15–3.2, Ala.Code 1975. Not only have the courts of this State interpreted the term “child” to include a viable fetus in other contexts, the dictionary definition of the term “child” explicitly includes an unborn person or a fetus. In everyday usage, there is nothing extraordinary about using the term “child” to include a viable fetus. For example, it is not uncommon for someone to state that a mother is pregnant with her first “child.” Unless the legislature specifically states otherwise, the term “child” is simply a more general term that encompasses the more specific term “viable fetus.” If the legislature desires to proscribe conduct against only a “viable fetus,” it is necessary to use that specific term. However, if the legislature desires to proscribe conduct against a viable fetus and all other persons under a certain age, the term “child” is sufficient to convey that meaning. In fact, proscribing conduct against a “child” and a “viable fetus” would be redundant.
The term “child” in § 26–15–3.2, Ala.Code 1975, is unambiguous; thus, this Court must interpret the plain language of the statute to mean exactly what it says and not engage in judicial construction of the language in the statute. Also, because the statute is unambiguous, the rule of lenity does not apply. We do not see any rational basis for concluding that the plain and ordinary meaning of the term “child” does not include a viable fetus.
Ankrom advances three main arguments against interpreting the term “child” in § 26–15–3.2, Ala.Code 1975, to include a viable fetus: (1) The legislature has specifically included the term “fetus” or “unborn child” in other statutes when the legislature's intent was for the statute to apply to a fetus; (2) most courts from other jurisdictions have held that mothers could not be criminally prosecuted for prenatal substance abuse on the statutory theories of child abuse/endangerment or drug distribution; and (3) the legislature has declined to amend § 26–15–3.2, Ala.Code 1975, to explicitly include an unborn child in the definition of the term “child.” We will address each argument in turn.
Contrary to Ankrom's argument, the fact that the legislature has included the term “fetus” or “unborn child” in other statutes does not mean that the term “child” in § 26–15–3.2, Ala.Code 1975, does not include a viable fetus. Ankrom specifically points to § 26–23–3, Ala.Code 1975, as an example to support her argument. Section 26–23–3, Ala.Code 1975, provides: “Any physician who knowingly performs a partial-birth abortion within this state and thereby kills a human fetus shall be guilty of a Class C felony and upon conviction thereof shall be punished as prescribed by law.” Ankrom states that “[t]here is no doubt in the plain meaning of that statute of which class it is designed to protect: human fetuses.” Ankrom's brief, at 20. Ankrom then reasons that “[i]f the legislature had intended for § 26–15–3.2(a) to apply to a fetus, then the legislature would have specifically included that language as it has in other statutes.” Id. However, the flaw in Ankrom's reasoning is that she misses the distinction between the use of the more specific term “human fetus” and the more general term “child.” As stated earlier, the general term “child” encompasses the more specific term “fetus.” Statutes such as § 26–23–3 can only apply to a fetus or unborn child because it is impossible to perform an abortion after a live birth has been completed, so using the more general term “child” in such a statute would be nonsensical. On the other hand, statutes such as § 26–15–3.2 may proscribe conduct against born and unborn children; thus, the more general term “child” is necessary. Therefore, Ankrom's first argument is without merit.
Next, we acknowledge the many decisions from appellate courts in other states holding that a mother cannot be criminally prosecuted for prenatal substance abuse under those states' child abuse/endangerment or drug-distribution statutes. See, e.g., Reinesto v. Superior Court, 182 Ariz. 190, 894 P.2d 733 (Ct.App.1995); Johnson v. State, 602 So.2d 1288 (Fla.1992); Commonwealth v. Welch, 864 S.W.2d 280 (Ky.1993); State v. Gray, 62 Ohio St.3d 514, 584 N.E.2d 710 (1992); Reyes v. Superior Court, 75 Cal.App.3d 214, 141 Cal.Rptr. 912 (1977); State v. Gethers, 585 So.2d 1140 (Fla.Dist.Ct.App.1991); State v. Luster, 204 Ga.App. 156, 419 S.E.2d 32 (1992); People v. Hardy, 188 Mich.App. 305, 469 N.W.2d 50, app. denied, 437 Mich. 1046, 471 N.W.2d 619 (1991); Sheriff, Washoe County, Nev. v. Encoe, 110 Nev. 1317, 885 P.2d 596 (1994); Collins v. State, 890 S.W.2d 893 (Tex.App.1994); State v. Martinez, 139 N.M. 741, 137 P.3d 1195 (N.M.Ct.App.2006); State v. Dunn, 82 Wash.App. 122, 916 P.2d 952 (1996); State v. Wade, 232 S.W.3d 663 (Mo.Ct.App.2007); State v. Geiser, 763 N.W.2d 469 (N.D.2009). However, we find that those cases are either distinguishable from the present case or unpersuasive.
Some of the cases from other jurisdictions involved prosecutions under statutes forbidding delivery of a controlled substance and, unlike the present case, depended on statutory construction of the term “deliver.” See, e.g., Johnson, supra; Hardy, supra; Luster, supra. In other cases, the courts noted that their states' homicide statutes did not apply to a fetus, unlike Alabama's homicide statute, which does apply to unborn children. § 13A–6–1(a)(3), Ala.Code 1975. See, e.g., Reinesto, 182 Ariz. at 192, 894 P.2d at 735; Reyes, 75 Cal.App.3d at 217, 141 Cal.Rptr. at 913; Welch, 864 S.W.2d at 281.
In Collins, the Texas Court of Appeals held that, divergent from Alabama, “the [Texas] Penal Code does not proscribe any conduct with respect to a fetus, and the Legislature, by its definitions of ‘child,’ ‘person,’ and ‘individual,’ has specifically limited the application of our penal laws to conduct committed against a human being who has been born and is alive.” Collins, 890 S.W.2d at 897–98. Similarly, in Dunn, the Washington Court of Appeals held that “[n]o Washington criminal case has ever included ‘unborn child’ or fetus in its definition of person.” Dunn, 82 Wash.App. at 128, 916 P.2d at 955.
In Gray, unlike the present case, the mother was prosecuted under a statute that stated, in relevant part: “No person, who is the parent ... of a child under eighteen years of age ... shall create a substantial risk to the health or safety of the child, by violating a duty of care, protection, or support....” Gray, 62 Ohio St.3d at 515, 584 N.E.2d at 711. Noting that criminal statutes must be strictly construed, the Ohio Supreme Court interpreted that statute by defining the terms “parent” and “child” to apply only to the relationship between mothers and fathers and their born infants. 62 Ohio St.3d at 515–18, 584 N.E.2d at 711–13. The Ohio Supreme Court noted that “[t]he word parent comes from the Latin parere, meaning to give birth.” 62 Ohio St.3d at 516, 584 N.E.2d at 711.
Other courts have worried about the implications of holding a mother criminally liable under a child-endangerment statute for conduct harmful to her fetus. Specifically, other courts have worried that holding a mother liable under such statutes would open the proverbial floodgates to prosecution of pregnant women who ingest legal toxins, such as alcohol or nicotine, or engage in any behavior that could conceivably injure the fetus. See, e.g., Encoe, 110 Nev. at 1319, 885 P.2d at 598; Welch, 864 S.W.2d at 283; Wade, 232 S.W.3d at 665–66. In Wade, the Missouri Court of Appeals stated that the logic of allowing prosecutions to protect the interest of the fetus “would be extended to cases involving smoking, alcohol ingestion, the failure to wear seatbelts, and any other conduct that might cause harm to a mother's unborn child. It is a difficult line to draw and, as such, our legislature has chosen to handle the problems of pregnant mothers through social service programs instead of the court system.” Wade, 232 S.W.3d at 666. However, in the present case, we need not worry about such unlimited extensions because we are not dealing with a general endangerment statute. Section 26–15–3.2(a)(1), Ala.Code 1975, the only statute we are asked to construe, concerns only conduct involving controlled substances or drug paraphernalia. It does not concern conduct involving smoking, alcohol ingestion, failure to wear seatbelts, or any other potentially harmful conduct that does not involve controlled substances.
Other courts have examined policy issues, legislative history, or other extrinsic materials to reach their conclusions that a mother cannot be criminally prosecuted for prenatal substance abuse under those states' child-abuse/endangerment statutes. See, e.g., Gethers, supra; Martinez, supra; Geiser, supra. However, we are not at liberty to engage in such a review because we hold that § 26–15–3.2(a)(1), Ala.Code 1975, is unambiguous on its face. See Pinigis v. Regions Bank, 977 So.2d 446, 451 (Ala.2007) (holding that “courts may examine extrinsic materials, including legislative history, to determine [legislative] intent” only “[i]f the statutory language is ambiguous”).
Again, we find the cases from other states holding that a mother cannot be criminally prosecuted for prenatal substance abuse under those states' child-abuse/endangerment or drug-distribution statutes to be distinguishable from the present case. To the extent that they are not distinguishable, we find that their reasoning is unpersuasive.
Ankrom's final argument against interpreting the term “child” in § 26–15–3.2, Ala.Code 1975, to include a viable fetus alleges that we should not interpret the term “child” to include a viable fetus because the legislature recently attempted to amend § 26–15–3.2, Ala.Code 1975, to explicitly state that the term “child” includes a child in utero at any stage of development, but the amendment failed. However, “ ‘failed legislative proposals are “a particularly dangerous ground on which to rest an interpretation of a prior statute....” ’ ” Baney v. State, 42 So.3d 170, 174 (Ala.Crim.App.2009), quoting United States v. Craft, 535 U.S. 274, 287, 122 S.Ct. 1414, 152 L.Ed.2d 437 (2002), quoting in turn Pension Benefit Guar. Corp. v. LTV Corp., 496 U.S. 633, 650, 110 S.Ct. 2668, 110 L.Ed.2d 579 (1990). “ ‘[Legislative] inaction lacks persuasive significance because several equally tenable inferences may be drawn from such inaction, including the inference that the existing legislation already incorporated the offered change.’ ” Craft, 535 U.S. at 287, quoting Central Bank of Denver, N.A. v. First Interstate Bank of Denver, N.A., 511 U.S. 164, 187, 114 S.Ct. 1439, 128 L.Ed.2d 119 (1994). In the present case, we do not need to speculate as to why the proposed amendment failed. Again, we hold that § 26–15–3.2, Ala.Code 1975, is unambiguous on its face; thus, we must construe the statute to mean exactly what it says. See Pinigis, supra.
Finally, Ankrom argues that § 26–15–3.2, Ala.Code 1975, as applied in the present case, is void for vagueness because, she says, the statute did not give her adequate notice that her conduct was proscribed. See Vaughn v. State, 880 So.2d 1178, 1195 (Ala.Crim.App.2003) (holding that “the void-for-vagueness doctrine requires that a penal statute define the criminal offense with sufficient definiteness that ordinary people can understand what conduct is prohibited and in a manner that does not encourage arbitrary and discriminatory enforcement,” but “[t]his prohibition against excessive vagueness does not invalidate every statute which a reviewing court believes could have been drafted with greater precision” because “[m]any statutes will have some inherent vagueness, for [i]n most English words and phrases there lurk uncertainties”). Specifically, Ankrom alleges that “[t]he plain language of the statute does not give notice that its criminal sanctions apply to fetuses exposed to controlled substances, and for that reason, Ms. Ankrom is being deprived of her due process right to fair notice of what conduct is impermissible.” Ankrom's brief, at 27. However, as we held above, the plain meaning of the term “child,” as found in § 26–15–3.2, Ala.Code 1975, includes a viable fetus. Therefore, Ankrom had adequate notice that her conduct was proscribed; thus, her constitutional argument is without merit.
Conclusion
Based on the foregoing, the judgment of the trial court is affirmed.
AFFIRMED. KELLUM and JOINER, JJ., concur.
WELCH, P.J., and WINDOM, J., concur in the result and dissent in part. WELCH, Presiding Judge, concurring in the result and dissenting in part.
The majority affirms Hope Elisabeth Ankrom's conviction following her guilty plea to chemical endangerment of a child, a violation of § 26–15–3.2, Ala.Code 1975, after reviewing her challenge to the trial court's denial of her motion to dismiss the indictment. I agree that Ankrom's conviction is due to be affirmed, but I do not agree that a construction of the statute charging chemical endangerment of a child is necessary or proper in this case, and is in fact premature. The indictment charging Ankrom properly charged an offense within the circuit court's jurisdiction, and her guilty plea established all of the elements of the offense; therefore, I concur in the result. Furthermore, I disagree with the majority's decision to overrule Doseck v. State, 8 So.3d 1024 (Ala.Crim.App.2008), and I dissent from that portion of the opinion.
“A guilty plea is a judicial confession. ‘ “A voluntary guilty plea concludes the issue of guilt, dispenses with the need for judicial fact finding, is conclusive as to the defendant's guilt, and is an admission of all facts sufficiently charged in the indictment.” ’ Whitman v. State, 903 So.2d 152, 155 (Ala.Crim.App.2004) (quoting Morrow v. State, 426 So.2d [481,] at 484 [ (1982) ] ). The rule under which the corpus delicti of a crime must be established applies only when the confession is extrajudicial and the accused pleads not guilty, compelling the prosecution to present evidence to prove its case. When a defendant pleads guilty, he or she admits every fact constituting the elements of the offenses and such a plea conclusively establishes the defendant's guilt. Once the trial court has determined that the plea is knowing and voluntary, the trial court need only satisfy itself that the defendant knew what he was pleading guilty to.”
G.E.G. v. State, 54 So.3d 949, 956 (Ala.2010).
Some additional details of the procedural history in this case are relevant to an understanding of the posture of this case on appeal. Ankrom was charged with knowingly, recklessly, or intentionally causing or permitting a child to be exposed to, to ingest or inhale, or to have contact with cocaine, in violation of § 26–15–3.2(a)(1), Ala.Code 1975. Ankrom filed a motion to dismiss the indictment and stated that “the alleged scenario suggested by the prosecution” would “suffice for the Court's understanding of this motion to dismiss the indictment” against her. (C. 20.) Ankrom then stated in the motion that a police officer had been notified that Ankrom had given birth that day and that both she and the infant had tested positive for cocaine. Ankrom raised numerous grounds in support of the motion to dismiss the indictment, and she summarized the grounds as follows:
“For the following reasons, the indictment in this case is due to be dismissed:
“1. The plain language of the statute shows that the legislature intended for the statute to apply only to a child, not a fetus.
“2. Overwhelmingly, courts in other states which have enacted the same or similar chemical endangerment statutes have determined that such statutes do not apply to prenatal conduct that allegedly harms a fetus.
“3. The state's contention that the Defendant violated this statute renders the law impermissibly vague, and therefore the Rule of Lenity applies. The Rule of Lenity in statutory construction states that in construing an ambiguous statute, the court should resolve the ambiguity in favor of the defendant.
“4. It is the legislature's duty, and not that of a district attorney, to proscribe criminal offenses.
“5. The legislature has previously considered amending the statute to include prenatal conduct that harms a fetus, and declined do so.
“6. The Defendant has not been accorded due process because there was no notice that her conduct was illegal under this statute.
“7. The prosecution of pregnant women is a violation of the constitutional guarantee of Equal Protection.
“8. Prosecution of pregnant, allegedly drug-addicted women is against public policy for numerous moral and ethical reasons.”
(C. 21–22.)(Emphasis in original.)
The State filed a response to Ankrom's motion to dismiss, and its argument to the trial court began: “Fool me once, shame on you; fool me twice, shame on me.” (C. 37.) The State argued that the issue of the applicability of the chemical-endangerment statute to a woman whose infant had tested positive for cocaine at birth already had been presented to this Court in a mandamus proceeding arising out of a Covington County prosecution. See Ex parte Ward (CR–07–1925, Oct. 16, 2008), 33 So.3d 656 (Ala.Crim.App.2008) (table). The State alleged that the facts and legal arguments in Ankrom's case were almost identical to those in Ward's case; that Ward had also filed a motion to dismiss the indictment and the motion had been denied; and that Ward had filed a petition for a writ of mandamus seeking an order directing the trial court to dismiss the indictment, which this Court denied. The State attached to its response the brief filed by the Alabama Attorney General in support of the denial of Ward's mandamus petition, and it adopted all the arguments the attorney general had made. (C. 38.) In the attorney general's brief to this Court in Ex parte Ward, the State argued that mandamus did not lie because Ward was not entitled to a dismissal of the indictment charging her with chemical endangerment. The attorney general argued:
“Moreover, because the State has not been afforded an opportunity to offer any evidence in this case, either in response to Ward's motion to dismiss or at trial, this Court, unlike the court in [ Ex parte Collins, 302 So.2d 551 (Ala.Crim.App.1974) ], does not have ‘all the evidence pertaining to the issue of the writ’ before it. See id.[,] 302 So.2d at 553. If Ward is tried, she will be able to raise a challenge to the sufficiency of the evidence in a motion for judgment of acquittal and, if convicted, she will be able to raise this same challenge on direct appeal.
Because the State may be able to prove at trial that Ward exposed [her infant] to cocaine after she was born, and because this Court does not have sufficient evidence before it to find otherwise, this Court need not address the question of whether the statute applies to a woman who uses illegal drugs during pregnancy.”
(C. 62.)(Emphasis added.)
After the State filed its response to Ankrom's motion to dismiss the indictment, the trial court entered an order denying Ankrom's motion:
“Defendant's Motion to Dismiss Indictment is denied.”
(C. 127.)
Ankrom subsequently entered a guilty plea and stated that she was reserving the issue raised in the motion to dismiss the indictment, that is, whether the facts as alleged charged an offense against her.
Ankrom argues that the judgment against her should be reversed and a judgment rendered in her favor because, she says, the indictment failed to charge an offense under the law and the trial court erred when it denied the motion to dismiss the indictment. I believe the trial court correctly denied the motion to dismiss the indictment because the claim underlying Ankrom's challenge to the indictment was based on the sufficiency of the evidence to prove the crime with which she had been charged, and such challenges are not properly made in pretrial motions to dismiss. Because I believe that the trial court's judgment was due to be affirmed on that ground, I also believe that the majority has incorrectly framed the issue as “whether a mother who ingested a controlled substance during her pregnancy may be prosecuted under § 26–15–3.2(a)(1), Ala.Code 1975, if at birth the infant tests positive for the controlled substance,” 152 So.3d at 377, and that the majority's interpretation of the statute is unnecessary to the resolution of the case. Finally, because I do not agree that Doseck v. State, 8 So.3d 1024 (Ala.Crim.App.2008), should be overruled, I dissent from that portion of the decision.
I.
This Court has consistently held that a motion to dismiss an indictment, Rule 13.5(c)(1), Ala. R.Crim. P., does not provide an avenue for the pretrial challenge to the sufficiency of the State's evidence. See Doseck, supra, and cases cited therein. See also State v. Bethel, 55 So.3d 377 (Ala.Crim.App.2010) (the circuit court's dismissal of the indictment against Bethel during guilty-plea proceedings after it heard the factual basis for the plea was error, in part because “Rule 13.5[, Ala. R.Crim. P.,] does not permit the dismissal of an indictment based on insufficient evidence”); Billingsley v. State, (No. CR–08–1971, October 22, 2010) 92 So.3d 814 (Ala.Crim.App.2010) (table); Jones v. State, 8 So.3d 1038 (Ala.Crim.App.2008).
The majority recognizes that Doseck would be controlling precedent in this case and that, if Doseck were followed, it would have to hold that the Ankrom's claim was not properly before this Court for review. Then, without invitation from either party, the majority overrules Doseck. The majority states it has reexamined Doseck, a case that was decided less than three years ago, and has determined it conflicts with established precedent from the Alabama Supreme Court, such as Ex parte Deramus, 882 So.2d 875 (Ala.2002), that hold that the substance of a motion—and not its style—determines what kind of motion it is. The majority also quotes with approval the dissenting opinion in Doseck, in which then Judge Shaw stated that he would not penalize Doseck for not styling his motion properly when he presented a pure question of law, that is, whether Doseck's undisputed actions constituted felony escape or misdemeanor escape.
Judge Shaw is now an Associate Justice on the Alabama Supreme Court.
The principles underlying this Court's opinion in Doseck were recently reaffirmed by the Alabama Supreme Court in Ex parte Worley, 102 So.3d 428 (Ala.2010). A decision overruling Doseck would conflict with precedent from the Alabama Supreme Court; therefore, I believe that this Court cannot overrule Doseck.
In Ex parte Worley, the State had charged Worley with five felony violations and five misdemeanor violations related to her campaign activities. Worley filed a pretrial motion to dismiss the charges, and the trial court dismissed the felony charges against her because, that court determined, the State's proposed evidence could not support the felony charges. The State appealed, and this Court, relying on Doseck, reversed the trial court's judgment and held that the dismissal was improper. We held that “the trial court truly made a pretrial determination as to the sufficiency of the evidence, and such a determination is not permitted by the Alabama Rules of Criminal Procedure or by Alabama caselaw.” State v. Worley, 102 So.3d 408, 417 (Ala.Crim.App.2009). The Alabama Supreme Court reversed this Court's judgment and stated, in relevant part:
“The State should have argued to the trial court that the appropriate time for it to consider Worley's motion to dismiss would have been at the conclusion of the State's case, not before the trial, and that, moreover, when the time to consider the motion did come, the motion should be denied for the following reasons, thereby setting forth the proffer. Instead, the State proceeded immediately to a discussion of the evidence it expected to be presented at trial, without advising the trial court that its proffer was premature and that it would be error for the trial court to rely on it.
“We conclude that the State invited the error of which it now complains when it laid out for the trial court the evidence it expected to offer in opposition to Worley's motion without informing the court that it would be premature for it to consider that evidence.”
Ex parte Worley, 102 So.3d at 434 (emphasis added).
The Alabama Supreme Court's holding reaffirms the legal principles discussed and applied in Doseck—that a challenge to the sufficiency of the State's evidence is not properly raised in a pretrial motion to dismiss an indictment. If a trial court was permitted by law to conduct a pretrial examination of the sufficiency of the evidence in the context of a motion to dismiss, the Alabama Supreme Court would not have relied on the doctrine of invited error in its analysis of Worley's case.
Unlike in Worley, the State in Ankrom's case—by adopting the briefs and arguments in Ex parte Ward—clearly argued that a ruling on the motion to dismiss was premature because the State had not had an opportunity to present its evidence. Therefore, the State did not invite error here.
Because the Alabama Supreme Court has recently reaffirmed the principles underlying Doseck and similar cases decided both before and after Doseck, this Court is not at liberty to overrule Doseck. As an intermediate appellate court, we are bound by the decisions and holdings of the Alabama Supreme Court. See § 12–3–16, Ala.Code 1975, which provides: “The decisions of the Supreme Court shall govern the holdings and decisions of the courts of appeals, and the decisions and proceedings of such courts of appeals shall be subject to the general superintendence and control of the Supreme Court as provided by Constitutional Amendment No. 328.”
The majority's decision overruling Doseck thus conflicts with Ex parte Worley.
II.
Even if precedent from the Alabama Supreme Court did not preclude this Court from overruling Doseck, I would nevertheless dissent from that portion of the majority opinion doing so, because Doseck should not be overruled.
First and foremost, I believe the majority has ignored the doctrine of stare decisis. In Grantham v. State, 540 So.2d 779 (Ala.1988), the Alabama Supreme Court adopted Judge Bowen's dissenting opinion, which stated, in relevant part:
“ ‘Until a decision of this court is reviewed and reversed by the Supreme Court, in cases authorized by law and in accordance with the rules made and provided, the decisions and opinion of this court construing a statute have the force and effect of judicial construction.’ People's Auto Co. v. State, 23 Ala.App. 7, 8, 121 So. 907 (1928), cert. denied, 219 Ala. 280, 121 So. 908 (1929). This principle is part of the foundation of our system of jurisprudence:
“ ‘ “While the law is and should be ever in progression towards perfection its application should be as immutable as the law of gravitation until a change has been effected therein either by constitutional amendment, by legislation or by judicial interpretation.
“ ‘....
“ ‘ “Hence, the rule of stare decisis has long been recognized as the bulwark of American jurisprudence, and unless it is adhered to in this instance what was [the crime of escape under our decision in Alexander v. State, 475 So.2d 625 (Ala.Crim.App.1984),] would now [be no crime].
“ ‘ “Such a ruling would do violence to our time-honored tradition of trial courts' reliance on judicial opinions for guidance and freedom from error. It would place the mark of condemnation upon the trial judge who in the exercise of his bounden duty looked to the decisions of the appellate court for guidance.” State v. Stout, 90 Okla.Crim. 35, 210 P.2d 199, 203 (1949).’ ”
Grantham v. State 540 So.2d at 781, quoting Grantham v. State, 540 So.2d 775, 778–79 (Ala.Crim.App.1987) (Bowen, P.J., dissenting).
Although Grantham discussed a decision of this Court construing a statute as having the force and effect of judicial construction until it is reversed by the Alabama Supreme Court, I am unaware of anything in Alabama law that would set a different standard for a decision of this Court following its construction of a rule of criminal procedure. The Alabama Supreme Court has stated: “Stare decisis commands, at a minimum, a degree of respect from this Court that makes it disinclined to overrule controlling precedent when it is not invited to do so.” Moore v. Prudential Residential Servs., Ltd. P'ship, 849 So.2d 914, 926 (Ala.2002). By conducting a sua sponte reexamination of Doseck the majority has ignored the foregoing principle and has abandoned recent precedent from this Court without any briefing or argument from the parties, and without any reexamination of the underlying rationale for the decision. The majority's willingness to cast aside a recent decision of the Court without an intervening change in the law or a challenge from the parties reflects a lack of judicial restraint. This Court's decision in Doseck is entitled to stand until it is properly challenged and receives an adequate review following a thorough briefing from the parties. “ Stare decisis should be made of sterner stuff than the mere fabric of this year's fashion.” Lowman v. Piedmont Exec. Shirt Mfg. Co., 547 So.2d 90, 96 (Ala.1989) (Houston, J., concurring in part and dissenting in part).
Furthermore, there exists no valid basis for overruling Doseck. Since 2008, when Doseck was decided, there has been no change in the Alabama Rules of Criminal Procedure or in the legal principles on which this Court relied in Doseck. Rule 13.5(c), Ala. R.Crim. P., did not in 2008—and it does not today—provide for the pretrial dismissal of an indictment based on a presumed insufficiency in the State's evidence. The majority does not dispute this point. Rather, the majority's argument in support of overruling Doseck and reaching the merits of Ankrom's argument is that defendants like Ankrom, who present to the trial court the question whether their actions constitute a violation of the statute under which they are charged should not be penalized for presenting the question in an “improperly styled manner,” such as in a motion to dismiss the indictment. 152 So.3d at 379.
I do not disagree with the majority's discussion of the proposition that a motion or other pleading should be treated according to its substance and not its style. However, the significant fact that the majority does not address here, and that then Judge Shaw failed to address in his dissent in Doseck, is that in Ex parte Deramus and in subsequent cases applying that principle of law, two conditions existed: first, there was a “misstyled” petition or pleading of some sort filed by the petitioner, and, second, there was also another petition or pleading available to the petitioner as the appropriate means of gaining judicial review of the relevant issue. That is not the case here, and it was not the case in Doseck. Ankrom could not properly use a motion to dismiss the indictment as a means of gaining review of her argument that the facts, as alleged, did not charge a crime under the chemical-endangerment statute. However, there exists no alternative procedure or filing by which Ankrom could have properly obtained pretrial judicial review of that issue. I find it most telling that the majority does not state what pleading or motion Ankrom should have filed or the type of pleading Ankrom's motion to dismiss was to be considered. The reason for that is simple: there is no such pleading, procedure, or other mechanism provided for in the Alabama Rules of Criminal Procedure or in caselaw that permits a trial court to review alleged or stipulated facts to determine whether they charge an offense under the relevant statute. The majority asserts that the motion to dismiss “was obviously mislabeled, because it did not challenge the validity of the indictment.” 152 So.3d at 377. Ankrom likely filed a motion to dismiss the indictment—as did Doseck—because there was no other pleading to file. Therefore, the majority's argument that the substantive issue can be reviewed simply because Ankrom mislabeled her pleading is unavailing.
Undeterred by the fact that no mechanism exists in current Alabama procedure for a court to conduct a pretrial review of the sufficiency of the State's evidence, the majority creates a mechanism and simply declares:
“[W]here a pure question of law as to whether an accused's actions constitute a violation of the statute he or she is charged with violating is properly presented to the trial court, ruled on by the trial court, and properly reserved for appeal during the guilty-plea colloquy—the appellant should not be penalized for raising that question of law in an improperly styled pleading, such as in a motion to dismiss the indictment. To hold otherwise would result in legally meritless cases being sent to trial and would waste precious judicial resources. Additionally, it is important to note that the State and Ankrom presented this legal issue fully to the trial court. Further, all parties were clearly aware of the question presented to, and ruled upon, by the trial court. It would be procedural folly for our Court to now refuse to consider the merits of this issue.”
152 So.3d at 378–79.
I disagree with the majority's analysis for several reasons. First, the issue was not “properly presented” to the trial court. As I have discussed above, this Court is not reviewing a mislabeled or a misstyled pleading that can be considered as if it were some other “properly styled” pleading. There is no pleading, petition, or procedure allowing a trial court to conduct a pretrial review of the underlying substantive issue presented here—whether the defendant's actions constitute a violation of the statute. By sanctioning such a procedure the majority has acted well beyond the bounds of its authority, and has, in essence, modified the Alabama Rules of Criminal Procedure and engrafted into the rules a form of summary judgment as found in the Alabama Rules of Civil Procedure. See Rule 56, Ala. R. Civ. P.
Only the Alabama Supreme Court has the authority to promulgate rules and regulate the procedures applicable to criminal proceedings. § 12–2–7(4), Ala.Code 1975; Ala. Const.1901, § 150. The Alabama Supreme Court in Marshall v. State, 884 So.2d 900 (Ala.2003), noted that it has the authority to amend the rules of procedure and stated:
“The Court of Criminal Appeals claimed in Brooks [ v. State, 892 So.2d 969 (Ala.Crim.App.2002),] that it had ‘ created a narrow exception to the 42–day rule [in Rule 4(b)(1), Ala. R.App. P.,] in Fountain v. State, 842 So.2d 719 (Ala.Crim.App.2000)....’ Brooks, 892 So.2d at 971. The Court of Criminal Appeals may not, however, amend the rules of procedure.”
884 So.2d at 905 n. 5 (second emphasis added). See also Dutell v. State, 596 So.2d 624, 625 (Ala.Crim.App.1991) (stating that, in construing the Alabama Rules of Criminal Procedure promulgated by the Alabama Supreme Court, “this court will attempt to ascertain and to effectuate the intent of the Alabama Supreme Court as set out in the rule” and citing Shelton v. Wright, 439 So.2d 55 (Ala.1983)). As an intermediate appellate court, this Court may interpret and apply the existing rules of procedure, but it may not rewrite them. The majority's attempt to create an avenue for a pretrial ruling on a hypothetical question regarding the sufficiency of the evidence goes well past the clearly defined limits of this Court's authority.
It is important to note that the substantive issue—whether Ankrom's actions constituted a violation of the statute—is not truly the issue before this Court. A defendant at a guilty-plea hearing may reserve for review only issues for which he or she received adverse rulings from the trial court. The only adverse ruling in the case was the denial of the motion to dismiss the indictment, and because the underlying substantive issue was not properly raised in a motion to dismiss the indictment, that substantive issue was not “properly presented” to the trial court. The majority labels the substantive issue as “a pure question of law” in an attempt to justify its review of the issue, but that label is not realistic because the resolution of the issue depends on an interpretation of the statute in light of the facts of Ankrom's case.
The State adopted the arguments in the briefs submitted in Ex parte Ward, and the initial argument in the attorney general's brief was that the trial court had properly denied Ward's motion to dismiss because Ward had a legal remedy available to challenge whether her actions constituted a violation of the chemical-endangerment statute—she could file a motion for a judgment of acquittal at the conclusion of the State's case at trial. So it is with Ankrom. The issue whether her actions constitute a violation of the chemical-endangerment statute can only be “properly presented” at trial in a motion for a judgment of acquittal. To sanction a pretrial review of the sufficiency of the evidence in this case, even under the guise that it is purely a legal question, amounts to an attempt by this Court to amend of the rules of criminal procedure.
Next, contrary to the majority's assertion, the substantive issue whether the statute applied to the facts of Ankrom's case was not “ruled on by the trial court.” 152 So.3d at 378. As detailed earlier in this special writing, Ankrom raised numerous issues in the motion to dismiss the indictment, and the trial court merely denied the motion.
The majority reads far too much into the court's one-sentence order when it states that the underlying substantive issue was ruled on by the trial court. In fact, it is more likely that the trial court followed Doseck and denied the motion to dismiss the indictment because, as argued in the response of the State, none of the issues could be properly challenged in a motion to dismiss the indictment. Furthermore, when the trial court ruled on the motion to dismiss, it did not have before it the stipulated facts on which the majority now relies. Those facts were presented at the guilty-plea hearing, and they are not properly considered as part of the review of the trial court's ruling on the motion to dismiss the indictment.
Next, the majority contends that the parties were aware of the question presented to and ruled on by the trial court and, the majority says, “it is important to note that the State and Ankrom presented this legal issue fully to the trial court.” 152 So.3d 379. Where, as here, there is no procedural mechanism to review the sufficiency of the evidence before trial, the parties' awareness of an issue placed before the court is irrelevant. That awareness does not provide this Court with the authority to amend the Rules of Criminal Procedure to provide for review of an issue not otherwise properly before the court. Moreover, I question whether the parties presented their complete legal arguments on the substantive issue, given the fact that Ankrom merely filed a motion to dismiss the indictment and that the State filed a response that consisted primarily of briefs from another case. Be that as it may, it is unclear to me why either of the foregoing arguments is relevant, because the substantive issue was not properly before the trial court for its consideration.
Although the majority argues that, to refuse to consider the issue now would be procedural folly and a waste of judicial resources, I note, again, that this Court does not have the authority to correct this perceived folly by making a structural change to the rules governing criminal procedure. In State v. McClain, 911 So.2d 54 (Ala.Crim.App.2005), cited in Doseck, the trial court granted the defendant's motion to dismiss the indictment after the alleged victim stated that she did not want to prosecute the case. This Court reversed the trial court's judgment and stated that a lack of evidence was not a viable basis for dismissing an indictment according to Rule 13.5(c), Ala. R.Crim. P. This Court also stated: “Although we understand the basis for the trial judge's frustration, we are nonetheless bound to follow the law.” 911 So.2d at 56. It appears to me that the majority here is frustrated with the current state of the law, but, unlike the McClain Court, the majority has failed to follow the law. Instead, the majority has attempted to amend the Rules of Criminal Procedure to create a mechanism with which to conduct a pretrial review of the sufficiency of the evidence.
For all the foregoing reasons, I believe the majority's analysis fails. Not only is the majority's reversal of Doseck unsupported by the Alabama Rules of Criminal Procedure and caselaw from this Court, the majority's decision conflicts with the Supreme Court's decision in Ex parte Worley. A pretrial motion to dismiss an indictment is not a proper mechanism by which to challenge the validity of a charge based on the anticipated evidence, and this Court does not have the authority to rewrite the Rules of Criminal Procedure to engraft such a mechanism into the rules. I believe that the majority's attempt to rewrite the Rules of Criminal Procedure in order to reach the substantive issue in this case exceeds the boundaries of this Court's authority just as clearly as did this Court's actions in Fountain v. State, 842 So.2d 719 (Ala.Crim.App.2000), rev'd in part, 842 So.2d 726 (Ala.2001), when the Court purported to create an exception to the Rules of Appellate Procedure.
Finally, although I do not agree with the majority's analysis in this case, I believe that the creation of a procedural mechanism by which a circuit court could consider at the pretrial stage whether a set of alleged or stipulated facts supports a charge under the particular criminal statute might be a useful addition to Alabama's criminal procedure. Such a procedure would be a wholesale change in the existing law, however, and there is no way to know at this juncture whether that change is necessary or would be helpful to the administration of justice. In any case, a change in the existing law will have to be made by the Alabama Legislature or the Alabama Criminal Rules Committee, under the governance of the Alabama Supreme Court and subject to the limitations of Ala. Const.1901, Art. VI, § 150, and § 12–2–7(4), Ala.Code 1975, that provide the Alabama Supreme Court with authority to create rules governing the “practice and procedure” in all courts, provided that the rules do not “abridge, enlarge, or modify the substantive right of any party,” so as to protect the right of a trial by jury. While I have not decided whether such a change in criminal procedure is warranted, I do know that such a change is not within this Court's scope of authority. Because the majority has attempted to make that change without any authority to do so, I dissent from the portion of the opinion overruling Doseck and impermissibly creating this new procedure. WINDOM, J., concurs. WINDOM, Judge, concurring in the result and dissenting in part.
I agree with the majority's decision to affirm the circuit court's denial of Hope Elisabeth Ankrom's pretrial motion to dismiss the indictment against her. Further, I agree with the majority's interpretation of § 26–15–3.2(a)(1), Ala.Code 1975. I, however, disagree with the majority's decision to overrule Doseck v. State, 8 So.3d 1024 (Ala.Crim.App.2008), because I do not believe that the law in this State provides a procedure for a trial judge to rule on the merits of a facially valid indictment before trial. Therefore, I, respectfully, dissent from that portion of the majority's opinion.
I join Judge Welch's special writing and write separately to further explain why I do not believe that this Court should reach the question of how to interpret § 26–15–3.2(a)(1), Ala.Code 1975.
Initially, the majority correctly notes that “ ‘ “[t]he substance of a motion and not its style determines what kind of motion it is.” ’ ” 152 So.3d 373, 377 (quoting Ex parte Deramus, 882 So.2d 875, 876 (Ala.2002), quoting in turn Evans v. Waddell, 689 So.2d 23, 26 (Ala.1997)). Here, Ankrom filed a pretrial motion to dismiss the indictment against her on the ground that her actions—using cocaine while pregnant and giving birth to an infant who tested positive for cocaine—did not violate § 26–15–3.2(a)(1), Ala.Code 1975, which makes chemical endangerment of a child a criminal offense. Ankrom further sought to have the circuit court consider a stipulation of facts in deciding whether her actions violated § 26–15–3.2(a)(1), Ala.Code 1975. Because Ankrom sought to have the circuit court “look[ ] beyond the face of the indictment and rul[e] on the merits of the charges against [her, she] ... in effect [sought] summary judgment in [her] favor....” United States v. Salman, 378 F.3d 1266, 1267 (11th Cir.2004). Regardless of the label placed on her motion, Ankrom sought, in substance, a pretrial determination of the merits of the indictment. In other words, she sought a pretrial, judicial determination that she was not guilty of the offense charged in the indictment.
It is well settled that “[a]n indictment returned by a legally constituted and unbiased grand jury, ... if valid on its face, is enough to call for trial of the charge of the merits.” Aaron v. State, 271 Ala. 70, 77, 122 So.2d 360, 365 (Ala.1960) (quoting Costello v. United States, 350 U.S. 359, 363, 76 S.Ct. 406, 100 L.Ed. 397 (1956)). Rule 13.5(c)(1), Ala. R.Crim. P., provides:
“A motion to dismiss the indictment may be based upon objections to the venire, the lack of legal qualifications of an individual grand juror, the legal insufficiency of the indictment, or the failure of the indictment to charge an offense.”
Although a defendant may challenge an indictment on the grounds detailed in Rule 13.5(c)(1), Ala. R.Crim. P., and on some constitutional or jurisdictional grounds, “[t]here is no summary judgment procedure [akin to a motion pursuant to Rule 56, Ala. R. Civ. P.,] in criminal cases.” United States v. Critzer, 951 F.2d 306, 307 (11th Cir.1992).
Accordingly, Alabama courts have long held that the merits of an indictment are not a proper consideration during pretrial proceedings. See Lovett v. State, 31 Ala.App. 210, 211, 14 So.2d 837, 838 (1943) (holding that “demurrers to the indictment were properly overruled [because] ... [s]everal of the grounds of demurrer presented defensive matters only, and hence were no answer to the valid indictment”). Because “defensive matters,” such as a defendant's assertion that she is innocent, are not a proper subject for a pretrial attack on an indictment, this Court has consistently held that the trial court may not dismiss an otherwise valid indictment based on the merits of the allegations contained therein. Id.; see State v. Edwards, 590 So.2d 379, 380 (Ala.Crim.App.1991) (holding that grounds for dismissal of an indictment that are “entwined with the merits of the case ... should not be made prior to trial but should be postponed until trial”); State v. McClain, 911 So.2d 54, 56 (Ala.Crim.App.2005) (holding that the sufficiency of the State's evidence is not a ground upon which a trial court may dismiss an indictment); State v. Foster, 935 So.2d 1216, 1216 (Ala.Crim.App.2005) (holding that an alleged insufficiency of the evidence or possibility that the State will be unable to meet its burden of proof is not a proper ground for a pretrial dismissal of an indictment); State v. Anderson, 8 So.3d 1033, 1035 (Ala.Crim.App.2008) (“[I]t is not appropriate to dismiss an indictment prior to trial based on a lack of evidence.”); State v. Bethel, 55 So.3d 377, 379 (Ala.Crim.App.2010) (reaffirming the principle that challenges to the indictment that are “entwined with the merits [of that indictment] ... should not be made before trial”). Likewise, the United States Court of Appeals for the Eleventh Circuit has held that trial courts may not look beyond the face of an indictment and dismiss that indictment based on a pretrial merits determination. United States v. Salman, 378 F.3d 1266, 1267 (11th Cir.2004); Critzer, 951 F.2d at 307. See also State v. Robertson, 8 So.3d 356, 357 (Ala.Crim.App.2008) (reversing the circuit court dismissal of two charges against the defendant, which were dismissed on the ground that the factual basis of the guilty plea was insufficient, and holding that “[i]nstead of dismissing the charges, the court should have refused to accept [the defendant's] pleas to the counts it found had no factual basis and then allowed the district attorney to determine his next course of action [i.e., whether or not to take those counts to trial]”).
It is important to note that Ankrom does not challenge the sufficiency of the evidence presented to the grand jury pursuant to § 12–16–200, Ala.Code 1975. Further, it does not appear from the record that such a motion could have been considered. See Loper v. State, 469 So.2d 707, 712 (Ala.Crim.App.1985) (holding that “[t]he testimony of a single witness before the grand jury is sufficient to comply with Ala.Code § 12–16–200 (1975)[, and that] [w]hen it appears that witnesses were examined by the grand jury, or the jury had before them legal documentary evidence, no inquiry into the sufficiency of the evidence is indulged”) (citations and quotations omitted).
For instance, in Salman, 378 F.3d at 1267, the defendant “was indicted for five counts of possession of firearms, and a sixth count of possession of ammunition, by an alien ‘illegally or unlawfully in the United States,’ in violation of 18 U.S.C. § 922(g)(5)(A).” After he was indicted, “Salman filed a motion to dismiss the indictment, maintaining that he was not ‘illegally or unlawfully’ in the United States, as a matter of law, at the time of his arrest”; therefore, he was not guilty of possession of a firearm by an illegal alien. Id. The trial court considered undisputed facts beyond the allegations in the indictment, held that “Salman was not ‘illegally or unlawfully in the United States' as a matter of law at the time of his arrest,” and dismissed the indictment. Id.
On appeal, the Eleventh Circuit reversed the trial court's decision holding:
“By looking beyond the face of the indictment and ruling on the merits of the charges against Salman, the district court in effect granted summary judgment in favor of the defendant. See United States v. Jensen, 93 F.3d 667, 669 (9th Cir.1996) (citing United States v. Critzer, 951 F.2d 306, 307 (11th Cir.1992) (per curiam)). In so doing, the district court overlooked binding precedent from this court. In Critzer, as in this case, the district court determined that, ‘assuming the facts to be true, defendant's actions did not constitute a violation of federal law.’ Id. at 307. We reversed the district court's dismissal of the indictments against Critzer, holding:
“ ‘There is no summary judgment procedure in criminal cases. Nor do the rules provide for a pre-trial determination of sufficiency of the evidence.... The sufficiency of a criminal indictment is determined from its face. The indictment is sufficient if it charges in the language of the statute.’
“ Id.; see also United States v. DeLaurentis, 230 F.3d 659, 661 (3d Cir.2000); United States v. Levin, 973 F.2d 463, 471–72 (6th Cir.1992) (Martin, J., dissenting) (stating that a pre-trial examination of the evidence disregards the boundary that exists between the role of the grand jury and the role of the trial court). There is no dispute that the government properly indicted Salman for an alleged violation of § 922(g)(5)(A).
“Because Salman was properly indicted, the government is entitled to present its evidence at trial and have its sufficiency tested by a motion for acquittal pursuant to Federal Rule of Criminal Procedure 29. See DeLaurentis, 230 F.3d at 661. A motion for acquittal under Rule 29 is the proper avenue for contesting the sufficiency of the evidence in criminal cases because there is no explicit authority to grant a pre-trial judgment as a matter of law on the merits under the Federal Rules of Criminal Procedure.”
Salman, 378 F.3d at 1268 (footnotes omitted).
In Doseck, 8 So.3d at 1024–26, this Court merely followed the well-settled principle that a trial court may not make a pretrial determination on the merits of an indictment. Doseck was indicted for second-degree escape. See § 13A–10–32, Ala.Code. Doseck, like Ankrom and Salmon, filed a pretrial motion to dismiss the indictment against him on the ground that undisputed facts not contained in the indictment established that his actions did not constitute second-degree escape. Id. Thus, Doseck, like Ankrom and Salmon, sought to have the circuit court “look[ ] beyond the face of the indictment and rul[e] on the merits of the charges against [him,] ... in effect [seeking] summary judgment in [his] favor....” Salman, 378 F.3d at 1267. The circuit court denied Doseck's motion. On appeal, this Court followed well-settled law and held that the merits of an indictment are not a proper ground for dismissal.
The majority in this case overrules Doseck, 8 So.3d 1024, and holds that “in [a] case [where there is a stipulation of facts and] ... where [the trial court is presented with] a pure question of law as to whether an accused's actions constitute a violation of the statute he or she is charged with violating[,] ... the appellant should not be penalized for raising that question of law” in a pretrial motion; therefore, the issue was properly before the trial court. 152 So.3d at 379. Stated differently, the majority overrules Doseck, 8 So.3d 1024, on the ground that a defendant, who seeks a summary judgment in a criminal proceeding, should not be penalized simply because “[t]here is no summary judgment procedure in criminal cases.” Critzer, 951 F.2d at 307.
I believe that by overruling Doseck and holding that the question of Ankrom's guilt was properly before the trial court in a pretrial proceeding because the court was presented with “a pure question of law,” the majority overlooks the fact that both Doseck and Ankrom sought a pretrial determination of the merits of the indictment, i.e., they each sought a summary judgment in their favor. I do not believe that the merits of an indictment are a proper consideration for a trial court because “[t]here is no summary judgment procedure in criminal cases.” Critzer, 951 F.2d at 307. This Court's decision in Doseck merely followed well-settled precedent and correctly held that trial courts are not authorized under Alabama law to make a pretrial determination on the merits of a facially valid indictment; therefore, I disagree with the majority's decision to overrule that case. For the same reason, I disagree with the majority's determination that Ankrom's motion to dismiss sought relief that was available pretrial.
Accordingly, I respectfully dissent from that portion of the majority's holding that overrules Doseck. Because I believe that the circuit court's decision denying Ankrom's motion to dismiss should be affirmed because the motion sought relief that was unavailable pretrial, I concur in the result of the majority's decision to affirm Ankrom's conviction and sentence.