Ex parte A.T.M.
- Reporters:
- , ,
- Before:
- Johnstone, Houston, Cook, See, England, Hooper, Maddox, Brown
JOHNSTONE, Justice.
A.T.M. was convicted of two counts of sexual abuse in the first degree for the sexual abuse of C.R. and M.R. in violation of
A.T.M. raises a number of issues in his petition for a writ of certiorari. The most meritorious issues are: 1) whether the State failed to prove the identity of the alleged victim Kamatra R. and 2) whether the State failed to introduce sufficient evidence to establish that he attempted to abuse L.R. sexually.
First, A.T.M. contends that the State failed to establish the identity of a witness named T.R. as “Kamatra R.,” the victim named in the indictment charging A.T.M. with sexual abuse in the second degree. The prosecutor offered T.R. as the victim of sexual abuse in the second
“The State has the burden of proving that the person named in the indictment as being the victim of the offense was, in fact, the victim.” Sockwell v. State, 675 So.2d 4, 21 (Ala.Crim.App.1993). “To be material, a variance as to the name alleged in the indictment from that proved by the evidence must be such as to be misleading or substantially injurious to the accused in making his defense, or to expose him to the danger of a second trial on the same charge.” Rupert v. State, 45 Ala.App. 84, 86, 224 So.2d 921, 922 (1969); Helms v. State, 40 Ala.App. 622, 624, 121 So.2d 104 (1960). “The purpose of the [fatal variance] rule is for identification and notice to defendant, and if those purposes are met no substantial injury to defendant results.” Vaughn v. State, 236 Ala. 442, 183 So. 428, 430 (1938). In House v. State, 380 So.2d 940, 942-43 (Ala. 1979), this Court adopted the fatal variance rule as stated in 42 C.J.S. Indictments and Informations § 265 (1944):
“`Where it is necessary to state the name of a third person as a part of the description of the offense, the name must be correctly stated and a material variance is fatal.... The modern rule, however, is that it is a question of identity; and where the identity of the person named in the indictment with the one named in the evidence is established, or where the inaccuracy is not misleading or substantially injurious to accused, the variance is not fatal.‘” (Citations to Alabama cases omitted.)
There is no material variance between the indictment and the proof at trial where a mere inaccuracy occurs in the name, as long as “the identity of the person named in the indictment with the one named in the evidence is established.” McCoy v. State, 232 Ala. 104, 106, 166 So. 769, 770 (1936). See Turner v. State, 406 So.2d 1066, 1069 (Ala.Crim.App.1981).
In this case, the State did not produce any evidence to show that “Kamatra R.,” the victim named in the indictment charging A.T.M. with sexual abuse in the second degree, was in fact T.R., who testified at trial that A.T.M. had sexually abused her. Indeed, the evidence affirmatively proved that T.R. was not the alleged victim Kamatra R.; and the record contains no evidence that A.T.M. sexually abused any Kamatra R. Because the State could seek to
Second, A.T.M. contends that the State failed to present sufficient evidence to support his conviction for attempted sexual abuse in the second degree of L.R. A person is guilty of sexual abuse in the second degree if “he, being 19 years old or older, subjects another person to sexual contact who is less than 16 years old, but more than 12 years old.”
Here, L.R. testified that, one night when she was asleep on the floor, she awoke to find A.T.M. “standing over [her] like he was fixing to dig in.” When defense counsel asked L.R. whether A.T.M. had actually touched her, L.R. stated: “I don‘t know if he was getting ready or already did it. I was asleep.” (R. 138.) L.R. did not testify that A.T.M. made any move to touch her, much less to touch any “intimate part.” Although the DHR representative testified that L.R. told her that A.T.M. may have been unzipping or zipping up her pants when he was standing over her, this hearsay statement is merely speculative. L.R. did not testify that A.T.M. even touched her zipper. Thus, the trial court erred in denying A.T.M. a judgment of acquittal on the charge of attempted sexual abuse in the second degree of L.R.
A.T.M. contends also that, as to all the charges against him, the State failed to prove that he touched any of the victims with the intent to gratify his sexual desires. See
For the reasons stated, we affirm the judgment of the Court of Criminal Appeals
AFFIRMED IN PART; REVERSED IN PART; AND REMANDED.
HOUSTON, COOK, SEE, and ENGLAND, JJ., concur.
HOOPER, C.J., concurs in the result.
MADDOX, J., concurs in the affirmance and dissents from the reversal.
BROWN, J.,* recuses herself.
On Application for Rehearing
JOHNSTONE, Justice.
APPLICATION OVERRULED.
HOOPER, C.J., and HOUSTON, COOK, SEE, and ENGLAND, JJ., concur.
MADDOX, J., dissents.
BROWN, J., recuses herself.*
MADDOX, Justice (dissenting).
I respectfully dissent from the overruling of the State‘s application directed toward this Court‘s reversal of the Court of Criminal Appeals’ judgment affirming A.T.M.‘s convictions for sexual abuse in the second degree against Kamatra R. and attempted sexual abuse in the second degree against L.R. I would grant the State‘s application and affirm that portion of the Court of Criminal Appeals’ judgment affirming A.T.M.‘s convictions for sexual abuse in the second degree and attempted sexual abuse in the second degree.