Brian Everett Hammock v. State of Alabama (Appeal from Lee Circuit Court: CC-20-70)

Rel: November 8, 2024

Notice: This opinion is subject to formal revision before publication in the advance sheets of Southern Reporter.
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Alabama Court of Criminal Appeals
OCTOBER TERM, 2024-2025
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CR-2024-0333
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Brian Everett Hammock

v.

State of Alabama

Appeal from Lee Circuit Court
(CC-20-70)

WINDOM, Presiding Judge.

Brian Everett Hammock appeals his convictions for two counts of

second-degree assault, see § 13A-6-21(a)(4), Ala. Code 1975; obstructing

governmental operations, see § 13A-10-2, Ala. Code 1975; resisting

arrest, see § 13A-10-41, Ala. Code 1975; improper lane usage, see § 32-
CR-2024-0333

5A-88, Ala. Code 1975; and driving under the influence of alcohol, see §

32-5A-191, Ala. Code 1975. The circuit court sentenced Hammock to 10

years in prison, which sentence was split and he was ordered to serve 18

months followed by 3 years of probation for his assault convictions; to 12

months in jail for his obstructing-governmental-operations conviction; to

6 months in jail for his resisting-arrest conviction; to 10 days in jail for

his improper-lane-change conviction, and to 12 months in jail for his

driving-under-the-influence conviction. The sentences were ordered to

be served concurrently.

Around 2:00 a.m. on August 4, 2018, Hammock, driving on the

wrong side of the road, nearly struck the patrol vehicle of Lee County

Sheriff's Deputy Erin Pierce. Dep. Pierce initiated a traffic stop of

Hammock's vehicle. While speaking with Hammock, Dep. Pierce smelled

the odor of alcohol. She asked Hammock to exit the vehicle but he

refused. Dep. Pierce called for assistance, and Sergeant Jessica Daley

arrived. She too asked Hammock to exit the vehicle, and he, again,

refused. As the deputies tried to remove Hammock from his vehicle,

Hammock pulled Sgt. Daley into the vehicle. When Hammock would not

release Sgt. Daley, Dep. Pierce tased Hammock and removed him from

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the vehicle. Once he was out of the vehicle, he grabbed Dep. Pierce's arm,

which caused bruising. Hammock continued to pull away and refused to

comply with commands as the deputies attempted to place handcuffs on

him. Deputies were eventually able to restrain Hammock and transport

him to the Lee County Detention Facility. Sgt. Daley sustained bruising

on her knees and scrapes on her hands as a result of her encounter with

Hammock.

On appeal, Hammock purports to challenge the circuit court's

denial of his motion for a judgment of acquittal as to the charge of

obstruction of governmental operations. Yet, he offers no argument or

caselaw in support of that claim. Instead, what Hammock appears to

argue is that the circuit court erred by constructively amending his

indictment for that charge.

Hammock's indictment for obstruction of governmental operations

alleged that Hammock

"did on or about August 4, 2018, intentionally obstruct,
impair, or hinder the administration of law or other
governmental function, or did intentionally prevent a public
servant from performing a governmental function, to wit:
refuse to exit the vehicle and resist arrest in violation of § 13A-
10-2 against the peace and dignity of the State of Alabama."

(Emphasis added.)

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During his motion for a judgment of acquittal on the charge of

obstructing governmental operations, Hammock asserted that, because

the indictment was written in conjunctive terms, "resisting arrest" was a

required element of the charge. Hammock argued, though, that

"resisting arrest cannot form a basis for obstructing governmental

operations. Otherwise, any time someone resisted arrest, they would be

guilty of a separate offense of obstructing governmental operations." (R.

328.) Hammock asserted that the indictment was therefore "fatal" and

that he should be entitled to an acquittal on that charge. (R. 328.) The

State suggested that "resisting arrest" was surplusage that could be

removed from the indictment. Over Hammock's objection, the circuit

court removed the phrase "resisting arrest" from the indictment charging

obstruction of governmental operations. (R. 349-51.)

To the extent Hammock's claim on appeal intends to challenge the

circuit court's amendment of his indictment, his claim is without merit.

Rule 13.5(a), Ala. R. Crim. P., provides, in pertinent part: "The court may

permit a charge to be amended without the defendant's consent, at any

time before verdict or finding, if no additional or different offense is

charged and if the substantial rights of the defendant are not prejudiced."

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In Pace v. State, 652 So. 2d 321 (Ala. Crim. App. 1994), this Court

addressed whether there was a fatal variance between the indictment,

which alleged that the defendant had committed first-degree robbery

while armed with "a beer bottle and a knife or knife-like object," and the

evidence presented at trial, which indicated that the defendant had

committed the robbery while armed with a pistol. Id. at 323. In holding

that there was no fatal variance because the indictment had been

properly amended, the Court stated:

"The limitation in Rule 13.5 that an amendment must
not charge a new or different offense 'does not apply to an
amendment that perfects a defective [indictment] by ...
changing the manner in which the crime was committed.' 2
W. LaFave & J. Israel, Criminal Procedure, § 19.2(g) at 462
(1984) (emphasis added). 'An indictment may be amended to
correct an error in the description of ... the weapon or other
instrument with which the defendant committed the offense
charged.' 2 C. Torcia, Wharton's Criminal Procedure, § 274 at
166-68 (13th ed. 1990).

"Rule 13.5 authorized an amendment of Count I of the
indictment to reflect that the appellant was armed with a
pistol instead of a 'beer bottle and a knife or knife-like object'
because that amendment did not 'change the offense' or
charge an 'additional or different offense.' Robbery while
armed with a pistol is the 'same offense' as robbery while
armed with a 'beer bottle and a knife or knife-like object'; the
two are simply the 'same crime under a different set of facts.'
The former is the same form of the offense of robbery in the
first degree as the latter − theft accomplished by the use or
threat of the use of force and while armed with a deadly

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weapon or dangerous instrument. See Ala. Code 1975, § 13A-
8-41(a)(1). Compare Ex parte Hightower, 443 So. 2d [ 1272,]
1274 [(Ala. 1983)] (defendant charged by solicitor's complaint
with sexual misconduct under § 13A-6-65(a)(1)[, Ala. Code
1975]; complaint alleged one form of this offense – that
defendant engaged in sexual intercourse with victim without
her consent – and proof showed another form – that defendant
obtained victim's consent by artifice)."

Pace, 652 So. 2d at 326.

Similarly, in this case, removing one manner of committing the

offense to allege that Hammock had obstructed governmental operations

by refusing to exit the vehicle instead of by refusing to exit the vehicle

and by resisting arrest did not change the offense or charge a different

offense. Further, the State is not required to prove all theories alleged in

the indictment, and proof of any one theory of the offense will support a

guilty verdict. Although the indictment charged the manner and means

of committing the offense in the conjunctive, the circuit court did not err

when it removed one manner of committing the offense. Finally, this

Court notes that Hammock has made no attempt to explain on appeal

how he was prejudiced by the circuit court's amending his indictment.

Although we have determined that Hammock is not entitled to any

relief on the claim raised on appeal, this Court must take judicial notice

of a jurisdictional defect. See State v. Isbell, 955 So. 2d 476 (Ala. Crim.

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App. 2006) (noting that this Court has a duty to notice jurisdictional

defects ex mero motu). Here, Hammock's simultaneous convictions for

both resisting arrest pursuant to § 13A-10-41, Ala. Code 1975, and

second-degree assault pursuant to § 13A-6-21(a)(4), Ala. Code 1975,

present a violation of the Double Jeopardy Clause that implicates the

jurisdiction of the circuit court. See Ex parte Benefield, 932 So. 2d 92,

93-94 (Ala. 2005).

"A person commits the crime of resisting arrest if he intentionally

prevents or attempts to prevent a peace officer from affecting a lawful

arrest of himself or another person." § 13A-10-41(a), Ala. Code 1975.

Hammock was indicted for two counts of second-degree assault against

the officers pursuant to § 13A-6-21(a)(4), Ala. Code 1975, which states

that a "person commits the crime of assault in the second degree if[, w]ith

intent to prevent a peace officer … from performing a lawful duty, he or

she intends to cause physical injury and he or she causes physical injury

to any person." As charged, resisting arrest was a lesser-included offense

of second-degree assault:

"Multiple convictions in a single proceeding for both a greater-
and a lesser-included offense has been recognized as a double-
jeopardy claim that implicates the trial court's jurisdiction.
See Ex parte Benefield, 932 So. 2d 92 (Ala. 2005).

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"….

" '(a) … An offense is an included if:

" '(1) It is established by proof of
the same or fewer than all the facts
required to establish the commission of
the offense charged.

" '….

" '(4) It differs from the offense
charged only in the respect that a less
serious injury or risk of injury to the
same person, property or public
interests, or a lesser kind of culpability
suffices to establish its commission.'

"§ 13A-1-9, Ala. Code 1975.

" 'In Blockburger v. United
States, the Supreme Court of the
United States enumerated the "same
elements" test for determining whether
two charges constitute the same
offense in violation of the Double
Jeopardy Clause of the Fifth
Amendment. 284 U.S. 299, 304 (1932).
Under the Blockburger test, "where the
same act or transaction constitutes a
violation of two distinct statutory
provisions, the test to be applied to
determine whether there are two
offenses or only one is whether each
provision requires proof of a fact which
the other does not. Id. (emphasis
added). The United States Supreme

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Court has also held "that a lesser
included and a greater offense are the
same under Blockburger ...." Brown v.
Ohio, 432 U.S. 161, 166 n.6 (1977). See
also Perkinson v. State, 273 Ga. 491,
494, 542 S.E.2d 92, 95 (2001) ("For
double jeopardy purposes, a lesser-
included and a greater offense are the
'same offense' under the Fifth
Amendment because the lesser offense
requires no proof beyond that which is
required for the conviction of the
greater offense.").'

"Gholston v. State, 57 So. 3d 178, 184 (Ala. Crim. App. 2010).

"… In Crear [v. State, 591 So. 2d 530 (Ala. Crim. App.
1991)], this Court found resisting arrest to be a lesser-
included offense to third-degree assault as charged under §
13A-6-22(a)(4), Ala. Code 1975. Under § 13A-6-22(a)(4), a
person commits third-degree assault if, 'with intent to prevent
a peace officer from performing a lawful duty, he causes
physical injury to any person.' The Crear court reasoned that
both § 13A-1-9(a)(1) and (a)(4) were satisfied because
'[r]esisting arrest is established, under the facts of this case,
by fewer than all the facts required to establish subsection
[13A-6-22](a)(4) assault, and it differs, under the facts of this
case, from subsection [13A-6- 22](a)(4) assault only in that it
contemplates a lesser injury or risk of injury to the peace
officer.' 591 So. 2d at 534. This Court rejected the State's
argument in Crear asserting that resisting arrest and third-
degree assault were two different acts. This Court stated:

" 'The problem with this argument is that the
offenses charged in the indictments were assaults
"with intent to prevent [the officers] from
performing a lawful duty," and not other assault
offenses. Compare § 13A-6-22(a)(1) ("A person

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commits the crime of assault in the third degree if
[w]ith intent to cause physical injury to another
person, he causes physical injury to any person.").
When the charged offense subsumes another crime
as a lesser included offense, appellant's
commission of any other uncharged crime is
simply immaterial to the lesser included offense
analysis.'

"Crear v. State, 591 So. 2d 530, 534 (Ala. Crim. App. 1991).

"… Therefore, as in Crear, both § 13A-1-9(a)(1) and
(a)(4) were satisfied because resisting arrest was established,
under the facts of this case, by fewer than all the facts
required to establish second-degree assault under § 13A-6-
21(a)(4), and it differs, under the facts of this case, from
second-degree assault under § 13A-6-21(a)(4) only in that it
contemplates a lesser injury or risk of injury to the peace
officer."

T.D.F. v. State, 264 So. 3d 108 (Ala. Crim. App. 2018).

As in T.D.F., Hammock's convictions for resisting arrest and

assault, as they are charged in this case, violate the prohibition against

double jeopardy, and this cause is remanded to the circuit court with

directions to vacate Hammock's resisting-arrest conviction and

accompanying sentence. Hammock’s remaining convictions are affirmed.

The circuit court shall take all necessary steps to ensure that the return

to remand is filed within 28 days of the date of this opinion.

AFFIRMED IN PART; REVERSED IN PART; AND REMANDED.

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Kellum, McCool, Cole, and Minor, JJ., concur.

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