author: SHAW, Judge. BASCHAB, Judge

text:
    C.G. v. STATE of Alabama.
    CR-00-0590.
    Court of Criminal Appeals of Alabama.
    Aug. 31, 2001.
    Rehearing Denied Oct. 19, 2001.

      Clifford W. Cleveland II, Prattville, for appellant.

      Bill Pryor, atty. gen., and Yvonne A.H. Saxon, asst. atty. gen., for appellee.
   SHAW, Judge.

The appellant, C.G., was convicted of sexual abuse in the first degree, a violation of § 13A-6-66, Ala.Code 1975, and was sentenced to seven years’ imprisonment. The victim was her five-year-old daughter, A.D.

The appellant contends that the evidence was insufficient to sustain her conviction. She preserved this issue for review by moving for a judgment of acquittal at the close of the State’s case.

“ ‘In determining the sufficiency of the evidence to sustain a conviction, a reviewing court must accept as true all evidence introduced by the State, accord the State all legitimate inferences therefrom, and consider all evidence in a light most favorable to the prosecution.’ ” Ballenger v. State, 720 So.2d 1033, 1034 (Ala.Crim.App.1998), quoting Faircloth v. State, 471 So.2d 485, 488 (Ala.Crim.App.1984), aff'd, 471 So.2d 493 (Ala.1985). “ ‘The test used in determining the sufficiency of evidence to sustain a conviction is whether, viewing the evidence in the light most favorable to the prosecution, a rational finder of fact could have found the defendant guilty beyond a reasonable doubt.’ ” Nunn v. State, 697 So.2d 497, 498 (Ala.Crim.App.1997), quoting O’Neal v. State, 602 So.2d 462, 464 (Ala.Crim.App.1992). “ When there is legal evidence from which the jury could, by fair inference, find the defendant guilty, the trial court should submit [the case] to the jury, and in such a case, this court will not disturb the trial court’s decision.’ ” Farrior v. State, 728 So.2d 691, 696 (Ala.Crim.App.1998), quoting Ward v. State, 557 So.2d 848, 850 (Ala.Crim.App.1990). “The role of appellate courts is not to say what the facts are. Our role ... is to judge whether the evidence is legally sufficient to allow submission of an issue for decision [by] the jury.” Ex parte Bankston, 358 So.2d 1040, 1042 (Ala.1978). (Emphasis in Bankston.)

The evidence adduced at trial indicated that in 1997, A.D. lived with her mother, the appellant, in a mobile home in Pratt-ville. A.D. testified that her father, M.D., “sometimes” stayed with them in the mobile home. (R. 24, 32.) According to A.D., on two or three occasions, when her father was visiting, he “hurt [her] on [her] private.” (R. 25.) A.D. specifically testified regarding an incident that occurred while she, the appellant, and her father were outside watching a comet. A.D. stated that while she was watching the comet with her parents, the appellant went inside to prepare dinner, leaving her alone outside with her father. After her mother went inside, A.D. said, her father placed her on the car and “rubbed on [her] private.” (R. 26.) A.D. testified that she could not remember the name for the part of her father’s body that he used to rub her, but stated that “it was his private.” (R. 28.) A.D. also testified about a second occasion of sexual abuse by her father, which, she said, occurred when the appellant again left her alone with her father. A.D. stated that she had told the appellant on two separate occasions that her father had hurt her, specifically that he had hurt her “privates.” A.D. also said that she no longer refers to the appellant as her “mama” because the appellant “didn’t protect [her]” from her father’s abuse and because the appellant “wasn’t the right mother that she was supposed to be.” (R. 29.)

Barbara J. Morris, a social worker with the Autauga County Department of Human Resources assigned to the Child Protective Services Unit, testified that she became involved in A.D.’s case in April 1997, when her office received a telephone call reporting that A.D. had been sexually abused. Morris testified that she initially interviewed A.D. at her office to determine whether to involve law-enforcement officers. During that interview, Morris said, A.D. revealed that her father had sexually abused her. After contacting the proper authorities, Morris then telephoned the appellant and requested that A.D., who had been placed in the custody of the appellant’s sister when the allegations were initially reported, be allowed to remain with the appellant’s sister until the investigation was complete. Morris stated that she requested this arrangement because A.D. had indicated to her that the appellant and her father had frequent contact and because A.D. had told her that the appellant had known of the abuse and had failed to take any action to protect her or to prevent further instances of abuse.

Morris testified that she subsequently met with the appellant in person at the appellant’s place of employment. According to Morris, at that time, she gave the appellant the option of regaining custody of A.D. if she agreed to keep A.D. away from her father. However, because the appellant was unable to assure Morris that she would terminate all contact with A.D.’s father, A.D. remained in her aunt’s custody with the appellant’s approval. The record reflects that, at the appellant’s request, A.D. was later removed from her aunt’s home and sent to live with her uncle, the appellant’s brother, L.G., and his wife, J.G. Morris testified that the appellant had told her that she would not discontinue contact with AD.’s father because she would not believe the allegations unless she heard them from A.D.

Morris also testified that, during her meeting with the appellant, she requested that the appellant not mention to A.D.’s father the allegations of sexual abuse until the investigation was complete. According to Morris, the appellant refused to cooperate, telling Morris that A.D.’s father “needed to know.” (R. 91.) In addition, during the interview, the appellant corroborated A.D.’s allegations that there were occasions when A.D. was alone with her father — once when the appellant went to feed a neighbor’s dog and once when the appellant left the house to pick up a pizza for dinner.

Morris further testified that she arranged a meeting between A.D., the appellant’s sister-in-law, and the appellant. Morris was also present at the meeting. During the meeting, Morris said, A.D. stated that she had told the appellant about her father’s abuse. According to Morris, the appellant did not appear shocked upon hearing A.D.’s statement, she merely asked when A.D. had told her about the abuse.

Morris also indicated that her office had supervised monthly visits between A.D. and the appellant. According to Morris, the visits were hostile. Morris said that A.D. had to be physically forced into the room with the appellant on more than one occasion; that A.D. had refused to enter the room with the appellant unless Morris was present; and that once in the room, A.D. had very little interaction with the appellant.

Morris stated that during her investigation of the abuse of A.D., she discovered that there had been a previous allegation of sexual abuse made against A.D.’s father by another victim in 1993. Although the prior report indicated a finding of sexual abuse, Morris said, the district attorney’s office had elected not to prosecute the case. However, according to Morris, when the present allegations arose, the district attorney initiated prosecution on the 1993 charge, and AD.’s father pleaded guilty to that charge in exchange for charges pending against him in Autauga County alleging the sexual abuse of A.D. being dropped. After concluding her investigation, Morris said, she was of the opinion that A.D. had been sexually abused.

Sharon Peggins, also a social worker with the Autauga County Department of Human Resources, testified that in October 1993 she investigated A.D.’s father in connection with the sexual abuse of a five-year-old girl who was the daughter of a family friend. Peggins stated that after conducting the investigation, she filed a disposition report in which she concluded that the victim had been sexually molested by A.D.’s father. Peggins testified that during an interview on October 4, 1993, with the appellant, who was living with A.D.’s father at the time, the appellant stated that after learning of the allegations, she had moved to Montgomery to live with her parents because she feared that her own children might be removed from her custody. Peggins stated that the appellant told her that A.D.’s father “normally tended to be attached to young girls between the ages of four and five,” and that A.D.’s father was uncomfortable bathing or performing other personal care tasks for A.D. (R. 69.)

Peggins testified that she spoke with the appellant again on October 7, 1993, when the appellant telephoned her. During this conversation, Peggins said, the appellant stated that after discussing the allegations with A.D.’s father, she and AD.’s father had decided that the victim needed to go to the doctor to be examined. Peggins stated that the appellant also said that she needed to have A.D. examined as well because A.D.’s father had “told her that he wasn’t sure.” (R. 71.) Peggins testified that she was concerned about A.D. at that time because of her father’s admission that he might have molested the first victim; however, because she felt the appellant was aware of the situation and would take any measures necessary to protect A.D., she did not start a file for A.D. at that time.

J.G., A.D.’s aunt and the appellant’s sister-in-law, also testified at the trial. According to J.G., at the time of the trial A.D. had lived in her home for approximately four years pursuant to a temporary custody order. J.G. said that when A.D. first came to live with her, she was generally afraid of men. J.G. also stated that on the first day A.D. was in her custody, A.D. made unsolicited disclosures regarding the sexual abuse by her father, and told her that she had repeatedly told the appellant about that abuse, but that the appellant had failed to help her. J.G. testified that A.D. told her that when she told the appellant what her father had done to her, the appellant had responded that “she [the appellant] liked it when Daddy did that to her.” (R. 60.) J.G. also testified that A.D. had said that on another occasion when she had told the appellant that her father had hurt her, the appellant said, “[W]ell, Daddy did a bad thing.” (R. 61.)

J.G. testified that when she and her husband accompany A.D. on court-ordered visitation with the appellant, A.D. attempts to avoid the appellant. According to J.G., A.D. now refers to her as “mama” and to her uncle as “daddy.” (R. 50.) J.G. also testified that when A.D. refers to her “privates,” she is talking about her vaginal area. (R. 62.)

The appellant testified in her own defense at trial. She stated that she was not “100 percent” sure of A.D.’s father’s guilt either in the present case or in the 1998 case. (R. 138, 168.) The appellant denied that she had ever told A.D. that it feels good when A.D.’s father rubs her privates. According to the appellant, the only complaint A.D. made to her was in January 1997 when, she said, A.D. confronted both her and A.D.’s father and accused A.D.’s father of hurting her “coochie.” (R. 139.) However, according to the appellant, while relating the story, A.D. said that the injury was accidental. The appellant said that A.D. told her that the injury occurred while she was jumping on her father’s back to wake him and her father accidentally fell against her and she hit the wall.

The appellant admitted that she had left A.D. alone with her father on two occasions. On the first occasion, the appellant said, she left A.D. alone with her father for approximately 20 minutes while she went to a neighbor’s house to feed the neighbor’s dog. She stated that A.D.’s father was grading A.D.’s work in a preschool workbook when she left, and that when she returned, four pages of the workbook had been completed and A.D. was excited because she had received an “A” on a page where she had gotten all of the answers correct. (R. 147.) The appellant also said that she had left A.D. alone with her father on another occasion when she went to pick up a pizza. The appellant testified that when she left A.D. alone with her father on those two occasions, she had no idea that A.D. was going to be abused, and that because A.D. is a very verbal child, she believed that A.D. would have relayed any unusual occurrence upon her return. According to the appellant, she had never heard the content of AD.’s testimony at any time before the trial.

The appellant admitted, however, that when informed by Barbara Morris that it would be in her best interest not to tell AD.’s father about the allegations, she had stated that she had never lied to A.D.’s father and that she would not start by keeping the allegations from him. She also stated that at AD.’s father’s trial in Montgomery County, she had testified that she did not fully believe that he had ever molested A.D. According to the appellant, the allegations in Montgomery County arose out of the vindictiveness of the mother of A.D.’s father’s first victim, who, the appellant said, was the first person to speak to A.D. about the abuse, and who contacted A.D.’s aunt and the Department of Human Resources. The appellant said that she had watched AD.’s father’s behavior from 1993 to 1997 and that she had never seen any inappropriate actions. The appellant testified that she did not feel that she had done anything wrong by leaving A.D. alone with her father.

The appellant admitted, however, that at the time the allegations against A.D.’s father arose in 1993 regarding the first victim, AD.’s father had been drinking heavily and he had indicated to her that he “was afraid that if he could do something like that to [the victim] while he was in a drunken stupor, that there was a chance that he could have done something to his daughter.” (R. 145.) The appellant stated that she had had A.D. examined at that time, and that she had promised her family that she would not leave A.D. alone with her father.

The appellant contends that the evidence was insufficient to sustain her conviction for sexual abuse in the first degree under a theory of complicity because, she says, the State failed to prove that she intended “to promote or assist the commission of the offense” as required by the complicity statute. § 13A-2-23, Ala.Code 1975.

Section 13A-2-23, Ala.Code 1975, provides:

“A person is legally accountable for the behavior of another constituting a criminal offense if, with the intent to promote or assist the commission of the offense:
“(1) He procures, induces or causes such other person to commit the offense; or
“(2) He aids or abets such other person in committing the offense; or
“(3) Having a legal duty to prevent the commission of the offense, he fails to make an effort he is legally required to make.”

In Porter v. State, 570 So.2d 823 (Ala.Crim.App.1990), this Court discussed the complicity statute, stating:

“The commentary to § 13A-2-23 states, in pertinent part, as follows:
“ ‘This section formalizes in simple terms the basic principles for determining criminal liability where based upon the behavior of another person or persons. It delineates both the type of action or omission required and the necessary mental state....
“ ‘... What this section does is define complicity in clear, direct and explicit terms, rather than attempt to accommodate the common-law concepts in defining accessorial liability. The test will be whether the accused with the intent to promote or assist the perpetration of an offense did any of certain enumerated acts in subdivisions (1) or (2) or failed to act (3).
“ ‘The three subparagraphs delineate various types of action or omission which might hold one to accountability. Subdivision (1) imposes liability in the situation where the defendant is the party who instigates or starts the eomplicitous conduct....
“ ‘Subdivision (2) imposes liability in the situation where one joins in the eomplicitous action. The classic words “aid and abet” are used. Aiding and abetting comprehends all assistance rendered by acts, or words of encouragement, or support or presence actual or constructive to render assistance should it become necessary, and no particular acts are necessary. ...
“ ‘Subdivision (3) places liability in the situation where the defendant who has a legal duty to prevent the crime fails to do so with the intent to further the crime. Although apparently there is no recent Alabama case law on this point, it has been established in other common law jurisdictions. See, e.g., People v. Chapman, 62 Mich. 280, 28 N.W. 896 (1886) (husband who had induced another to seduce his wife stood by and did not interfere with subsequent rape.) This would also comprehend the situation where a night watchman or policeman, if with an intent to aid the perpetrating party, stands by and neglects his duty to intervene. It should be noted that mere negligence in the night watchman situation would be insufficient for liability; one must also have the “intent to promote or assist the commission of the offense.” ’
“See also Powell v. United States, 2 F.2d 47 (4th Cir.1924); Rasberry v. State, 757 S.W.2d 885 (Tex.App.1988). For a discussion of criminal liability based on omission to act, see J. Hall, General Principles of Criminal Law 190-205, 208-11 (2d ed.1960); Frankel, Criminal Omissions: A Legal Microcosm, 11 Wayne L.Rev. 367 (1965).
“Under subsections (1) and (2) of § 13A-2-23, an affirmative act on the part of the accused is required, while subsection (3) is concerned with the situations in which a person may be criminally responsible for the conduct of another by failing to act. Subsection (3) makes one a party who aids the commission of the offense by inaction. In other words, having a legal duty to prevent commission of the offense, and acting with intent to promote or assist its commission, he or she fails to make a reasonable effort to prevent commission of the offense.
“ ‘Most crimes are committed by affirmative action rather than by non-action. But there are a number of statutory crimes which are specifically defined in terms of failure to act; and other crimes which, though not specifically so defined, may be committed either by affirmative action or by failure to act under circumstances giving rise to a legal duty to act.
“ ‘(a) Duty to Act. For criminal liability to be based upon a failure to act it must first be found that there is a duty to act — a legal duty and not simply a moral duty. As we have seen, some criminal statutes themselves impose the legal duty to act, as with the tax statute and the hit-and-run statute. With other crimes the duty must be found outside the definition of the crime itself — perhaps in another statute, or in the common law, or in a contract.’
“W. LaFave and A. Scott, Substantive Criminal Law § 3.3 (1986) (footnotes omitted).”

570 So.2d 823 at 826-27.

In this case, the State proceeded under § 13A-2-23(3), Ala.Code 1975. The State argued at trial, and it argues on appeal, that the appellant had a legal duty to take appropriate steps to prevent A.D. from being abused; that the appellant failed to take those steps; and that, in failing to do so, the appellant intended to promote or assist A.D.’s father in sexually abusing A.D.

Although the appellant does not argue that she did not have a legal duty to care for and to protect her daughter (in effect, she concedes that she did have such a duty), we note that Alabama has recognized a duty on the part of a parent to care for and to protect his or her children. The Alabama Uniform Parentage Act defines the “parent-and-child relationship” as “the legal relationship existing between a child and his natural or adoptive parents incident to which the law confers or imposes rights, privileges, duties and obligations.” § 26-17-2, Ala.Code 1975. (Emphasis added.) In R.J.D. v. Vaughan Clinic, P.C., 572 So.2d 1225 (Ala.1990), the Alabama Supreme Court acknowledged that “[t]he parents’ common law duty to care for their children is widely recognized.” 572 So.2d at 1227. It said:

“ ‘It is ordinarily for the parent in the first instance to decide ... what is actually necessary for the protection and preservation of the life and health of his child, so long as he acts as a reasonable and ordinarily prudent parent would act in the like situation.’ ”

Id., quoting 59 Am.Jur.2d Parent and Child § 48, at 193-94 (1987). See also Silas v. Silas, 680 So.2d 368, 371 (Ala.Civ.App.1996).

Although we have found no eases in Alabama holding a nonperpetrating parent criminally liable for the sexual abuse of a child by another parent based on § 13A-2-23(3), Ala.Code 1975, other states have recognized a duty on the part of a parent to care for and protect his or her child and have upheld the conviction of a parent for the physical and sexual abuse of a child even though that parent was not the perpetrator of the abuse. See, e.g., Lundman v. McKown, 530 N.W.2d 807, 820 (Minn.Ct.App.), cert. denied, 516 U.S. 1092, 116 S.Ct. 814, 133 L.Ed.2d 759 (1996) (“A custodial parent has a special relationship to a dependent and vulnerable child that gives rise to duty to protect the child from harm.”); People v. Peters, 224 Ill.App.3d 180, 190, 586 N.E.2d 469, 476, 166 Ill.Dec. 511, 518 (1991), aff'd, 153 Ill.2d 218, 606 N.E.2d 1201, 180 Ill.Dec. 124 (1992) (holding that a mother may be found guilty of murder by reason of accountability in a case where her child was killed by her abusive boyfriend, because “[a] person who knows that his or her child is in a dangerous situation and fails to take action to protect the child, presumably intends the consequences of the inaction,” and “thereby, becomes legally accountable for the conduct of the abuser”); State v. Williquette, 125 Wis.2d 86, 370 N.W.2d 282 (Ct.App.1985), aff'd, 129 Wis.2d 239, 242, 385 N.W.2d 145, 147 (1986) (holding that “a parent who knowingly permits another person to abuse the parent’s own child subjects the child to abuse ...” and that the conduct of a mother who regularly left her two children in the exclusive care of their father despite allegedly knowing that he abused the children in her absence was overt conduct rather than a mere omission to act); State v. Walden, 306 N.C. 466, 293 S.E.2d 780 (1982) (holding that a mother may be found guilty of assault on a theory of aiding and abetting on the sole basis that she was present when the child was assaulted and failed to take reasonable steps to prevent that assault).

We cite with approval the language of the North Carolina Supreme Court, as quoted by the North Carolina Court of Appeals in State v. Ainsworth, 109 N.C.App. 136, 426 S.E.2d 410 (1993), regarding a parent’s duty to his or her children:

“ ‘[W]e believe that to require a parent as a matter of law to take affirmative action to prevent harm to his or her child or be held criminally hable imposes a reasonable duty upon the parent. Further we believe this duty is and has always been inherent in the duty of parents to provide for the safety and welfare of their children, which duty has long been recognized by the common law and by statute. This is not to say that parents have the legal duty to place themselves in danger of death or great bodily harm in coming to the aid of their children. To require such, would require every parent to exhibit courage and heroism which, although commendable in the extreme, cannot realistically be expected or required of all people. But parents do have the duty to take every step reasonably possible under the circumstances of a given situation to prevent harm to their children.
‘In some cases, depending upon the size and vitality of the parties involved, it might be reasonable to expect a parent to physically intervene and restrain the person attempting to injure the child. In other circumstances, it will be reasonable for a parent to go for help or to merely verbally protest an attack upon the child. What is reasonable in any given case will be a question for the jury after proper instructions from the trial court.’ ”

109 N.C.App. at 143-44, 426 S.E.2d 410, quoting State v. Walden, 306 N.C. at 475-76, 293 S.E.2d at 786-87. (Emphasis added.)

The appellant argues that although she had a duty as a parent to protect A.D. from harm, the State failed to prove that when she left A.D. alone with her father, she intended to promote or assist A.D.’s father in sexually abusing A.D., as required for a violation of § 13A-2-23, Ala. Code 1975. Specifically, she maintains that because she was not present when the abuse occurred and because she testified that she did not know when she left A.D. alone with her father that A.D. was going to be abused, the evidence was insufficient to establish that she was an accomplice. We disagree.

Accomplice liability requires that the accomplice intend to promote or to assist the principal in the commission of the offense. See, e.g., Prantl v. State, 462 So.2d 781, 783 (Ala.Crim.App.1984) (“The thrust [of accomplice liability] is to place liability on one who has the more positive mental state of promoting or actively assisting in the perpetration of an offense.”). To have such an intent, the accomplice must have “knowledge that the principal is engaging in, or is about to engage in, criminal conduct.” Simmons v. State, 649 So.2d 1282, 1284 (Ala.1994), citing Committee Comments to § 13A-2-23, Ala.Code 1975.

Here, there was sufficient evidence from which a jury could have reasonably concluded that the appellant knew, when she left A.D. alone with her father, that her father was going to abuse her. A.D. testified that she had told the appellant on more than one occasion that she had been sexually abused by her father, but that the appellant failed to take any measures to prevent future abuse. Barbara Morris stated that when directly confronted with A.D.’s allegation that she had been abused and that she had told her mother about the abuse, but that her mother had done nothing to prevent it, the appellant did not seem surprised and did not deny that she had known about the abuse. Perhaps even more damaging, when A.D. informed the appellant about the abuse, she said, the appellant responded that “she [the appellant] liked it when Daddy did that to her” on one occasion, and commented later that “Daddy did a bad thing.” Furthermore, the appellant failed to cooperate during the investigation and also refused to take steps to protect A.D. after the allegations came to light. The State presented evidence that allegations of sexual abuse had been lodged against AD.’s father in 1993; that the appellant knew of those allegations; and that the appellant had moved to another county to get away from AD.’s father because of those allegations. The appellant herself testified that she had had A.D. examined by a doctor at that time because A.D.’s father had indicated to her that he was afraid that “there was a chance that he could have done something to his daughter.” (R. 145.) When interviewed by Sharon Peggins regarding the allegations in 1993, the appellant told Peg-gins that A.D.’s father “tended to be attached to young girls between the ages of four and five” and that A.D.’s father had told her that he was not sure if he had sexually abused the first victim. (R. 69.) In addition, the appellant stated that, when the 1993 allegations initially arose, she had promised her family that she would never leave A.D. alone with her father. Yet the appellant admitted leaving A.D. alone in the company of her father on at least two occasions. This evidence was more than sufficient to establish that the appellant either knew or should have known that leaving A.D. alone with her father created the danger that A.D. would be sexually abused.

Despite the fact that the appellant was not present at the time of the abuse, because there was sufficient evidence that the appellant knew, or should have known, that there was a probability that A.D.’s father would sexually abuse her in the appellant’s absence, the jury could have reasonably concluded, based on all the evidence, that the appellant, by leaving A.D. alone with her father knowing that there was a substantial likelihood that A.D. would be abused, intended to promote or to assist the sexual abuse of A.D. “ ‘ “Intent, ... being a state or condition of the mind, is rarely, if ever, susceptible of direct or positive proof, and must usually be inferred from the facts testified to by witnesses and the circumstances as developed by the evidence.” ’ ” Wilson v. State, 777 So.2d 856, 932-33 (Ala.Crim.App.1999), aff'd, 777 So.2d 935 (Ala.2000), cert. denied, 531 U.S. 1097, 121 S.Ct. 826, 148 L.Ed.2d 709 (2001), quoting French v. State, 687 So.2d 202, 204 (Ala.Crim.App.1995), rev’d on other grounds, 687 So.2d 205 (Ala.1996), quoting in turn McCord v. State, 501 So.2d 520, 528-29 (Ala.Crim.App.1986). “The intent of a defendant at the time of the offense is a jury question.” Downing v. State, 620 So.2d 983, 985 (Ala.Crim.App.1993).

Moreover, the appellant’s testimony that she did not know A.D.’s father was going to abuse A.D. and that she did not intend to promote or to assist the abuse only created a conflict in the evidence; that conflict was for the jury to resolve. “Conflicting evidence presents a jury question not subject to review on appeal, provided that the [S]tate’s evidence established a prima facie case.” Presley v. State, 770 So.2d 104, 111 (Ala.Crim.App.1999), aff'd, 770 So.2d 114 (Ala.2000), cert. denied, 531 U.S. 881, 121 S.Ct. 194, 148 L.Ed.2d 135 (2000). “ ‘This court will not interfere when the evidence is conflicting if there was material evidence tending to support the jury’s verdict.’ ” Marks v. State, 581 So.2d 1182, 1185 (Ala.Crim.App.1991), quoting Washington v. State, 539 So.2d 1089, 1100 (Ala.Crim.App.1988). “ ‘Where there is evidence from which the jury may by fair inference find the defendant guilty, the trial court should submit the case to the jury to determine the weight it will give the evidence, and this Court should not disturb the verdict.’ ” Miller v. State, 645 So.2d 363, 368 (Ala.Crim.App.1994), quoting Giles v. State, 440 So.2d 1237, 1239 (Ala.Crim.App.1983), rev’d on other grounds, 497 So.2d 201 (Ala.1986). Because the State presented sufficient evidence of the appellant’s intent to warrant sending the case to the jury, the trial court did not err in denying the appellant’s motion for a judgment of acquittal.

The judgment of the trial court is affirmed.

AFFIRMED.

McMILLAN, P.J., and COBB, J., concur.

BASCHAB, J., concurs specially, with opinion.

WISE, J., recuses herself.

BASCHAB, Judge

(concurring specially).

I write specially to acknowledge that, with this opinion, this court is breaking new ground with regard to the protection of children. Although, at first blush, this opinion might appear to misapply the failure to protect doctrine, the result is appropriate under the facts of this case and will surely inure to the benefit of children. Based on the previous allegations against M.D., the appellant clearly knew there was a very real possibility that M.D. would sexually abuse A.D. Nonetheless, she disregarded that knowledge and allowed M.D. to be alone with A.D. This is not a case in which the appellant was a battered woman. In fact, there is not any evidence that M.D. or anyone else had ever abused her. Likewise, this is not a case in which the appellant was not able to protect A.D. from M.D. In fact, four years before this offense occurred, the appellant had taken A.D. and moved to a separate residence from M.D. because of allegations that he had sexually abused another young girl. Clearly, the appellant could have controlled M.D.’s contact with A.D. Therefore, I agree with the majority opinion.

      . L.G. and J.G. had custody of A.D. at the lime of the trial.

      . Although the charges against A.D.'s father in Autauga County were dropped, the record reflects that he was indicted and convicted on a charge of sexual abuse of A.D. that occurred while they were visiting his mother at her residence in Montgomery County.

      . The Alabama Supreme Court has also created an exception to the doctrine of parental immunity; under that exception a child may seek civil redress for personal injuries arising out of sexual abuse not only against the actual perpetrator of the abuse, but also against an allegedly negligent, nonperpetrating parent who "allowed the abuse to occur.” Hurst v. Capitell, 539 So.2d 264, 265 (Ala.1989). See also Henderson v. Woolley, 230 Conn. 472, 644 A.2d 1303 (1994).


source: Caselaw Access Project

author: LYONS, Justice.

license: Public Domain

text:
    Ex parte C.G. (In re C.G. v. State of Alabama).
    1010249.
    Supreme Court of Alabama.
    April 19, 2002.
    Rehearing Denied June 14, 2002.
    Clifford W. “Chip” Cleveland II of Cleveland & Colley, P.C., Prattville, for petitioner.
    Bill Pryor, atty. gen., and Yvonne A.H. Saxon, asst. atty. gen., for respondent.
   LYONS, Justice.

C.G. was convicted, as an accomplice, of sexual abuse in the first degree, a violation of § 13A-6-66, Ala.Code 1975, and was sentenced to seven years’ imprisonment. The victim was her five-year-old daughter, A.D. The Court of Criminal Appeals affirmed C.G.’s conviction. C.G. v. State, 841 So.2d 281 (Ala.Crim.App.2001). We granted certiorari review to determine whether the Court of Criminal Appeals erred in holding that there was sufficient evidence from which a jury could have concluded that C.G. intended to promote or to assist A.D.’s father in the commission of sexual abuse. For the reasons stated below, we affirm the judgment of the Court of Criminal Appeals.

I.

The facts as described in the Court of Criminal Appeals’ opinion are as follows:

“The evidence adduced at trial indicated that in 1997, A.D. lived with her mother, [C.G.], in a mobile home in Prattville. A.D. testified that her father, M.D., ‘sometimes’ stayed with them in the mobile home. (R. 24, 32.) According to A.D., on two or three occasions, when her father was visiting, he ‘hurt [her] on [her] private.’ (R. 25.) A.D. specifically testified regarding an incident that occurred while she, [C.G.], and her father were outside watching a comet. A.D. stated that while she was watching the comet with her parents, [C.G.] went inside to prepare dinner, leaving her alone outside with her father. After her mother went inside, A.D. said, her father placed her on the car and ‘rubbed on [her] private.’ (R. 26.) A.D. testified that she could not remember the name for the part of her father’s body that he used to rub her, but stated that ‘it was his private.’ (R. 28.) A.D. also testified about a second occasion of sexual abuse by her father, which, she said, occurred when [C.G.] again left her alone with her father. A.D. stated that she had told [C.G.] on two separate occasions that her father had hurt her, specifically that he had hurt her privates. A.D. also said that she no longer refers to [C.G.] as her ‘mama’ because [C.G.] ‘didn’t protect [her]’ from her father’s abuse and because [C.G.] ‘wasn’t the right mother that she was supposed to be.’ (R. 29.)
“Barbara J. Morris, a social worker with the Autauga County Department of Human Resources assigned to the Child Protective Services Unit, testified that she became involved in A.D.’s case in April 1997, when her office received a telephone call reporting that A.D. had been sexually abused. Morris testified that she initially interviewed A.D. at her office to determine whether to involve law-enforcement officers. During that interview, Morris said, A.D. revealed that her father had sexually abused her. After contacting the proper authorities, Morris then telephoned [C.G.] and requested that A.D., who had been placed in the custody of [C.G.’s] sister when the allegations were initially reported, be allowed to remain with [C.G.’s] sister until the investigation was complete. Morris stated that she requested this arrangement because A.D. had indicated to her that [C.G.] and her father had frequent contact and because A.D. had told her that [C.G.] had known of the abuse and had failed to take any action to protect her or to prevent further instances of abuse.
“Morris testified that she subsequently met with [C.G.] in person at [C.G.’s] place of employment. According to Morris, at that time, she gave [C.G.] the option of regaining custody of A.D. if she agreed to keep A.D. away from her father. However, because [C.G.] was unable to assure Morris that she would terminate all contact with A.D.’s father, A.D. remained in her aunt’s custody with [C.G.’s] approval. The record reflects that, at [C.G.’s] request, A.D. was later removed from her aunt’s home and sent to live with her uncle, [C.G.’s] brother, L.G., and his wife, J.G. Morris testified that [C.G.] had told her that she would not discontinue contact with A.D.’s father because she would not believe the allegations unless she heard them from A.D.
“Morris also testified that, during her meeting with [C.G.], she requested that [C.G.] not mention to A.D.’s father the allegations of sexual abuse until the investigation was complete. According to Morris, [C.G.] refused to cooperate, telling Morris that A.D.’s father ‘needed to know.’ (R. 91.) In addition, during the interview, [C.G.] corroborated A.D.’s allegations that there were occasions when A.D. was alone with her father — once when [C.G.] went to feed a neighbor’s dog and once when [C.G.] left the house to pick up a pizza for dinner.
“Morris further testified that she arranged a meeting between A.D., [C.G.’s] sister-in-law, and [C.G.]. Morris was also present at the meeting. During the meeting, Morris said, A.D. stated that she had told [C.G.] about her father’s abuse. According to Morris, [C.G.] did not appear shocked- upon hearing A.D.’s statement, she merely asked when A.D. had told her about the abuse. .
“Morris also indicated that her office had supervised monthly visits between A.D. and [C.G.] According to Morris, the visits were hostile. Morris said that A.D. had to be physically forced into the room with [C.G.] on more than one occasion; that A.D. had refused to enter the room with [C.G.] unless Morris was present; and that once in the room, A.D. had very little interaction with [C.G.].
“Morris stated that during her investigation of the abuse of A.D., she discovered that there had been a previous allegation of sexual abuse made against A.D.’s father by another victim in 1993. Although the prior report indicated a finding of sexual abuse, Morris said, the district attorney’s office had elected not to prosecute the case. However, according to Morris, when the present allegations arose, the district attorney initiated prosecution on the 1993 charge, and A.D.’s father pleaded guilty to that charge in exchange for charges pending against him in Autauga County alleging the sexual abuse of A.D. being dropped.2 After concluding her investigation, Morris said, she was of the opinion that A.D. had been sexually abused.
“Sharon Peggins, also a social worker with the Autauga County Department of Human Resources, testified that in October 1993 she investigated A.D.’s father in connection with the sexual abuse of a five-year-old girl who was the daughter of a family friend. Peggins stated that after conducting the investigation, she filed a disposition report in which she concluded that the victim had been sexually molested by A.D.’s father. Peggins testified that during an interview on October 4,1993, with [C.G.], who was living with A.D.’s father at the time, [C.G.] stated that after learning of the allegations, she had moved to Montgomery to live with her parents because she feared that her own children might be removed from her custody. Peggins stated that [C.G.] told her that A.D.’s father ‘normally tended to be attached to young girls between the ages of four and five,’ and that A.D.’s father was uncomfortable bathing or performing other personal care tasks for A.D. (R. 69.)
“Peggins testified that she spoke with [C.G.] again on October 7, 1993, when [C.G.] telephoned her. During this conversation, Peggins said, [C.G.] stated that after discussing the allegations with A.D.’s father, she and A.D.’s father had decided that the victim needed to go to the doctor to be examined. Peggins stated that [C.G.] also said that she needed to have A.D. examined as well because A.D.’s father had ‘told her that he wasn’t sure.’ (R. 71.) Peggins testified that she was concerned about A.D. at that time because of her father’s admission that he might have molested the first victim; however, because she felt [C.G.] was aware of the situation and would take any measures necessary to protect A.D., she did not start a file for A.D. at that time.
“J.G., A.D.’s aunt and [C.G.’s] sister-in-law, also testified at the trial. According to J.G., at the time of the trial A.D. had lived in her home for approximately four years pursuant to a temporary custody order. J.G. said that when A.D. first came to live with her, she was generally afraid of men. J.G. also stated that on the first day A.D. was in her custody, A.D. made unsolicited disclosures regarding the sexual abuse by her father, and told her that she had repeatedly told [C.G.] about that abuse, but that [C.G.] had failed to help her. J.G. testified that A.D. told her that when she told [C.G.] what her father had done to her, [C.G.] had responded that ‘she [C.G.] liked it when Daddy did that to her.’ (R. 60.) J.G. also testified that A.D. had said that on another occasion when she had told [C.G.] that her father had hurt her, [C.G.] said, ‘[W]ell, Daddy did a bad thing.’ (R. 61.)
“J.G. testified that when she and her husband accompany A.D. on court-ordered visitation with [C.G.], A.D. attempts to avoid [C.G.]. According to J.G., A.D. now refers to her as ‘mama’ and to her uncle as ‘daddy.’ (R. 50.) J.G. also testified that when A.D. refers to her ‘privates,’ she is talking about her vaginal area. (R. 62.)
“[C.G.] testified in her own defense at trial. She stated that she was not ‘100 percent’ sure of AD.’s father’s guilt either in the present case or in the 1993 case. (R. 138, 168.) [C.G.] denied that she had ever told A.D. that it feels good when AD.’s father rubs her privates. According to [C.G.], the only complaint A.D. made to her was in January 1997 when, she said, A.D. confronted both her and A.D.’s father and accused A.D.’s father of hurting her ‘coochie.’ (R. 139.) However, according to [C.G.], while relating the story, A.D. said that the injury was accidental. [C.G.] said that A.D. told her that the injury occurred while she was jumping on her father’s back to wake him and her father accidentally fell against her and she hit the wall.
“[C.G.] admitted that she had left A.D. alone with her father on two occasions. On the first occasion, [C.G.] said, she left A.D. alone with her father for approximately 20 minutes while she went to a neighbor’s house to feed the neighbor’s dog. She stated that A.D.’s father was grading A.D.’s work in a preschool workbook when she left, and that when she returned, four pages of the workbook had been completed and A.D. was excited because she had received an ‘A’ on a page where she had gotten all of the answers correct. (R. 147.) [C.G.] also said that she had left A.D. alone with her father on another occasion when she went to pick up a pizza. [C.G.] testified that when she left A.D. alone with her father on those two occasions, she had no idea that A.D. was going to be abused, and that because A.D. is a very verbal child, she believed that A.D. would have relayed any unusual occurrence upon her return. According to [C.G.], she had never heard the content of AD.’s testimony at any time before the trial.
“[C.G.] admitted, however, that when informed by Barbara Morris that it would be in her best interest not to tell A.D.’s father about the allegations, she had stated that she had never lied to A.D.’s father and that she would not start by keeping the allegations from him. She also stated that at A.D.’s father’s trial in Montgomery County, she had testified that she did not fully believe that he had ever molested A.D. According to [C.G.], the allegations in Montgomery County arose out of the vindictiveness of the mother of A.D.’s father’s first victim, who, [C.G.] said, was the first person to speak to A.D. about the abuse, and who contacted A.D.’s aunt and the Department of Human Resources. [C.G.] said that she had watched A.D.’s father’s behavior from 1993 to 1997 and that she had never seen any inappropriate actions. [C.G.] testified that she did not feel that she had done anything wrong by leaving A.D. alone with her father.
“[C.G.] admitted, however, that at the time the allegations against A.D.’s father arose in 1993 regarding the first victim, A.D.’s father had been drinking heavily and he had indicated to her that he ‘was afraid that if he could do something like that to [the victim] while he was in a drunken stupor, that there was a chance that he could have done something to his daughter.’ (R. 145.) [C.G.] stated that she had had A.D. examined at that time, and that she had promised her family that she would not leave A.D. alone with her father.
"1. L.G. and J.G. had custody of A.D. at the time of the trial.
"2. Although the charges against A.D.'s father in Autauga County were dropped, the record reflects that he was indicted and convicted on a charge of sexual abuse of A.D. that occurred while they were visiting his mother at her residence in Montgomery County.”

841 So.2d 283-86.

II.

C.G. was convicted of sexual abuse based upon a theory of accomplice liability. Specifically, the jury found that C.G. was legally accountable for M.D.’s actions because C.G. failed to protect A.D. from sexual abuse, in violation of § 13A-2-23(3), AIa.Code 1975. Section 13A-2-23(3) provides:

“A person is legally accountable for the behavior of another constituting a criminal offense if, with the intent to promote or assist the commission of the offense:
“(3) Having a legal duty to prevent the commission of the offense, [she] fails to make an effort [she] is legally required to make.”

(Emphasis added.) C.G. contends that the Court of Criminal Appeals erred in holding that there was sufficient evidence from which a jury could conclude that she intended to promote or to assist A.D.’s father in committing sexual abuse.

In affirming C.G.’s conviction, the Court of Criminal Appeals relied upon five cases, each recognizing a duty on the part of a parent to care for and protect his or her child from physical or sexual abuse by a third party. See Lundman v. McKown, 530 N.W.2d 807, 820 (Minn.Ct.App.1995); People v. Peters, 224 Ill.App.3d 180, 190, 586 N.E.2d 469, 476, 166 Ill.Dec. 511, 518 (1991), aff'd, 153 Ill.2d 218, 606 N.E.2d 1201, 180 Ill.Dec. 124 (1992); State v. Williquette, 129 Wis.2d 239, 385 N.W.2d 145 (1986), aff'd, 129 Wis.2d 239, 385 N.W.2d 145 (1986); State v. Walden, 306 N.C. 466, 293 S.E.2d 780 (1982); and State v. Ainsworth, 109 N.C.App. 136, 426 S.E.2d 410 (1993). After carefully reviewing each of the above cases, we find only People v. Peters applicable to C.G.

Although Peters is a murder case and the evidence of the defendant’s knowledge that her child had been abused was arguably stronger in that case, the Illinois appellate court’s analysis of the sufficiency of the evidence proving intent is relevant in our review of C.G.’s culpability. In Peters, the defendant was convicted, under a theory of accountability, of murder, aggravated battery of a child, cruelty to a child, and endangering the life of a child. 224 Ill.App.3d at 181, 586 N.E.2d at 470, 166 Ill.Dec. at 512. On appeal, the defendant argued that the State had failed to prove that she could be held accountable for the murder of her son because she was not present when he was killed by her boyfriend and because she did not perform any act specifically intending to facilitate his murder. Id.

Karen Wagner, the child’s former babysitter, testified for the State. Wagner testified that shortly after the defendant began dating Kenneth Jacobsen she noticed bruises on the child’s buttocks. 224 Ill.App.3d at 182, 586 N.E.2d at 471, 166 Ill.Dec. at 513. Wagner questioned the defendant about the bruises, and the defendant told her that the child had probably fallen at home while he was learning to walk. On another occasion Wagner noticed bruises on the child’s cheeks, chin, and forehead. Id. On this occasion, Wagner questioned Jacobsen about the bruises and was told that the child had fallen off the ladder to a slide. Id.

During the course of babysitting for the child, Wagner noticed several other bruises including “bumpy-like welts” scattered around the center of the child’s back, cuts on the child’s lip, and a burn that went “from the top of his scalp down his neck and one shoulder.” 224 Ill.App.3d at 182-83, 586 N.E.2d at 471, 166 Ill.Dec. at 513. Wagner testified that the defendant told her that she had taken the child to the hospital for treatment for the burn; however, hospital records showed that the child had never been admitted for burn treatment. 224 Ill.App.3d at 183-87, 586 N.E.2d at 471-74, 166 Ill.Dec. at 513-16. Wagner also testified that the defendant told her that Jacobsen was going to be arrested for child abuse. When the child’s burns went untreated, Wagner telephoned the Department of Children and Family Services (“DCFS”) and reported the child’s bruises and burns. 224 Ill.App.3d at 183, 586 N.E.2d at 471-72, 166 Ill.Dec. at 513-14.

After learning that Wagner had reported the abuse, the defendant became angry with Wagner and refused to allow Wagner to babysit for the child. 224 Ill.App.3d at 184, 586 N.E.2d at 472, 166 Ill.Dec. at 514. On the night of the child’s death, the defendant left her home around 6:30 p.m. to go drinking with one of her girlfriends. 224 Ill.App.3d at 186, 586 N.E.2d at 473, 166 Ill.Dec. at 515. She left the child in Jacobsen’s care. The defendant returned home three hours later but did not look in on the child. When the defendant awoke the next morning, Jacobsen told her that they had to take the child to the hospital because he had turned blue. The child had suffered a bilateral, subdural hemato-ma, which resulted from blunt head trauma; he died from his injuries. Id.

The State’s pathologist testified that to cause the head injury the child sustained, his, head would have to have been forcibly smashed against a tabletop, countertop, or wall. 224 Ill.App.3d at 188, 586 N.E.2d at 475, 166 Ill.Dec. at 517. An autopsy revealed 45 areas of bruising on the chüd’s body. 224 Ill.App.3d at 185-86, 586 N.E.2d at 473, 166 Ill.Dec. at 515. The autopsy also revealed that the physical abuse had started when the child was 15 months of age, approximately the time that the defendant had begun dating Jacobsen. Id.

The defendant told investigators that when she worked, she would routinely leave the child in Jacobsen’s custody. 224 Ill.App.3d at 188, 586 N.E.2d at 475, 166 Ill.Dec. at 517. The defendant also stated that when she came home from work and saw the child’s bruises, she accepted Ja-cobsen’s explanation that the child was clumsy and was prone to falling down. Id. The outpatient registrar at the hospital to which the child was admitted on the morning of his death testified that she overheard the defendant say to Jacobsen, “ T told you not to get so angry, I told you not to get so angry, I told [you] this would happen.’ ” 224 Ill.App.3d at 187, 586 N.E.2d at 474, 166 Ill.Dec. at 516.

The defendant testified that she never saw Jacobsen abuse her son and that she never willfully caused or permitted Jacob-sen to abuse the child. 224 Ill.App.3d at 188, 586 N.E.2d at 475, 166 Ill.Dec. at 517. The defendant stated that Jacobsen never struck her and that she never saw Jacob-sen hit or strike her son. She also testified that she never saw Jacobsen get angry with the child or reprimand him. Id.

The Illinois accountability statute under which the defendant was charged provided, in pertinent part:

“ ‘A person is legally accountable for the conduct of another when:
“ ‘(c) Either before or during commission of an offense, and with the intent to promote or facilitate such commission, he solicits, aids, abets, agrees or attempts to aid, such other person in the planning or commission of the offense.’ ”

224 Ill.App.3d at 190, 586 N.E.2d at 476, 166 Ill.Dec. at 518 (quoting Ill.Rev.Stat. 1985, ch. 38, par. 5 — 2(c)); see also 720 ILCS 5/5-2 (emphasis added). Although the language of Alabama’s complicity statute does not mirror that of the Illinois accountability statute, both require proof that the defendant intended to engage in the conduct prohibited. See § 13A-2-23, Ala.Code 1975. In determining whether the evidence was sufficient to prove that the defendant intended “to promote or facilitate” the physical abuse and death of her son, the Appellate Court of Illinois considered the substantial evidence showing that the defendant knew about the abuse Jacobsen had inflicted upon her son and did nothing to intervene. 224 Ill. App.3d at 190-91, 586 N.E.2d at 477, 166 IlLDec. at 519.

Evidence of the defendant’s knowledge in Peters included Wagner’s discussion of the child’s injuries with the defendant, the inconsistent explanations Jacobsen or the defendant gave of the cause of the child’s injuries, the defendant’s firing Wagner as babysitter for the child after Wagner reported the injuries to the DCFS, the 45 areas of bruising on the child’s body that were at least a week old at the time of his death, visible bruising on his hands and face the day before his death, and the defendant’s statement to Jacobsen at the emergency room, which illustrated her awareness of the previous abuse of the child. 224 Ill.App.3d at 191-92, 586 N.E.2d at 476-77, 166 Ill.Dec. at 518-19.

Based upon this evidence, the Peters court concluded that the defendant knew of the ongoing abuse her son had suffered at the hands of Jacobsen and that she failed to take any action to protect her son. 224 Ill.App.3d at 191-92, 586 N.E.2d at 477, 166 Ill.Dec. at 519. Recognizing that the Illinois accountability statute required that the accused have the “intent to promote or facilitate the offense,” the Court held that “[i]ntent may be gleaned from knowledge.” 224 Ill.App.3d at 190, 586 N.E.2d at 476, 166 Ill.Dec. at 518. According to the Court, “[a] person who knows that his or her child is in a dangerous situation and fails to take action to protect the child, presumably intends the consequences of the inaction.” Id. Applying this analysis, the Court concluded that the defendant’s conduct satisfied the intent requirement of the statute; the Court reasoned that she intended to facilitate the offense because she knew that Jacobsen was abusing her son and she faüed to intervene. Id.

Our research has revealed that the Peters rationale, specificahy, that intent to abuse can be inferred from knowledge of abuse by another, has been cited with approval in one other jurisdiction. See Davis v. Commonwealth, 967 S.W.2d 574 (Ky.1998). Applying the Peters rationale, the Supreme Court of Kentucky affirmed the conviction of a defendant accused of first-degree criminal abuse. See Davis v. Commonwealth, 967 S.W.2d at 581. In Davis, the defendant had repeatedly left her two-year-old daughter in the care of her boyfriend. When she returned, the defendant often noticed bruises on the chüd’s face, neck, and buttocks. 967 S.W.2d at 576-77. On the last occasion when the child was left alone with the defendant’s boyfriend, the child sustained two large skull fractures and died the next afternoon. Id.

The defendant argued that the evidence was insufficient to support a jury’s conclusion that she intentionally permitted her daughter to be abused. 967 S.W.2d at 581. Citing Peters, the Supreme Court of Kentucky held that intent could be gleaned from knowledge. According to the Court, there was ample evidence from which a reasonable juror could have concluded that the defendant knew her child was being abused when she was left alone with the defendant’s boyfriend. Id.

C.G. was convicted of violating § 13A-2-23(3), complicity by omission or failure to act. She argues that, notwithstanding the Peters decision, the Commentary to § 13A-2-23(3) indicates that the Legislature did not intend to punish the accused for mere knowledge that a crime might occur. Rather, she argues, the mental state required to violate § 13A-2-23(3) is intent. According to C.G., her knowledge that M.D. sexually abused a child in the past does not in and of itself establish that C.G. intended to promote or assist him in sexually abusing A.D. C.G. contends that, at most, she is guilty of reckless endangerment.

The Commentary to § 13A-2-23(3) states:

“Subdivision (3) places liability in the situation where the defendant who has a legal duty to prevent the crime fails to do so with the intent to further the crime. Although apparently there is no recent Alabama case law on this point, it has been established in other common law jurisdictions. See, e.g., People v. Chapman, 62 Mich. 280, 28 N.W. 896 (1886) (husband who had induced another to seduce his wife stood by and did not interfere with subsequent rape). This would also comprehend the situation where a night watchman or policeman, if with an intent to aid the perpetrating party, stands by and neglects his duty to intervene. It should be noted that mere negligence in the night watchman situation would be insufficient for liability; one must also have the ‘intent to promote or assist the commission of the offense.’

§ 13A-2-23 Commentary, Ala.Code 1975 (emphasis added).

The watchman analogy, illustrating the differing degrees of culpability for one who has been accused of failing to make an effort to prevent the commission of an offense, distinguishes the conduct of a watchman who has been bribed to look the other way from the conduct of a merely careless watchman who sleeps on the job. The essential difference between the bribed'watchman and the merely careless watchman is the lack of any benefit to the careless watchman from which one might infer an intent to aid in the commission of the offense.

C.G. maintains that her conduct is analogous to that of the merely careless watchman. In reaching its decision in Peters, the Appellate Court of Illinois was not faced with the precise statutory language found in § 13A-2-23(3), nor did it have the benefit of the Commentary addressing § 13A-2-23(3) to aid in the determination of the intent of the Legislature. Thus, in order to sustain C.G.’s conviction, we cannot hold, as did the Peters court, that C.G.’s knowledge of M.D.’s propensity for sexually abusing his daughter, standing alone, was sufficient to prove intent. Otherwise we would be punishing the merely careless watchman. In order to treat C.G. as other than a merely careless watchman, we must examine the evidence for a basis from which the jury could have concluded that she derived some benefit from failing to intervene and protect A.D. from her father’s sexual abuse, thereby permitting the jury to infer that C.G. possessed the requisite intent to assist M.D.

This inquiry requires consideration of all of the circumstances surrounding the sexual abuse of A.D. These circumstances include C.G.’s knowledge that A.D. was being sexually abused by M.D. and C.G.’s reaction to that knowledge. This Court has held that “ ‘ “In determining the sufficiency of the evidence to sustain a conviction, a reviewing court must accept as true all evidence introduced by the State, accord the State all legitimate inferences therefrom, and consider all evidence in a light most favorable to the prosecution.” ’ ” Ex parte Tiller, 796 So.2d 310, 312 (Ala.2001), quoting Ex parte Woodall, 730 So.2d 652, 658 (Ala.1998), quoting in turn Powe v. State, 597 So.2d 721, 724 (Ala.1991).

The State’s evidence indicated that C.G. knew that M.D. had been accused in 1993 of sexually molesting a five-year-old child. C.G. was aware and even told social workers that M.D. tended to be attached to young girls between the ages of four and five and that M.D. was uncomfortable bathing or performing other personal-care tasks for A.D. Even more alarming, C.G. had had A.D. examined because she knew there was a possibility that M.D. might have sexually abused A.D. as early as 1993. C.G. moved out of the home that she shared with M.D. and promised family members that she would never allow A.D. to be alone with M.D. Nevertheless, C.G. and M.D. resumed contact a short time later.

M.D. was not a regular member of C.G.’s household in 1997; rather, he “sometimes” stayed with C.G. and her daughter in their mobile home. M.D. was left alone with A.D. on at least two occasions during this period. On those two occasions, M.D. sexually abused A.D. A.D. repeatedly told C.G. that M.D. had sexually abused her. On one such occasion, C.G. responded by stating that “[C.G.] liked it when Daddy did that to her.” From this the jury could draw two conclusions — that C.G. derived pleasure from the companionship of M.D. and that, at least on that occasion, not only was C.G. tolerant of M.D.’s criminal activity, she tried to inculcate in A.D. a positive attitude toward it. Of course, the evidence on this point was inconsistent because there was evidence indicating that, on another occasion, C.G. told A.D. that “Daddy did a bad thing.” In all events, C.G. did nothing to prevent the further sexual abuse of A.D. and refused to keep the child away from M.D. after the Department of Human Resources began investigating the allegations of sexual abuse.

The jury heard evidence indicating that C.G. knew that M.D. had been accused of sexual abuse in the past, that A.D. told C.G. that M.D. had sexually abused her, that C.G. failed to report the abuse to police or to seek medical attention for A.D., that C.G. continued her relationship with M.D. even after A.D. told her that M.D. had sexually abused her, and that C.G. continued to allow M.D. access to A.D. In sum, the jury could have reasonably believed that C.G. actually knew that M.D. was sexually abusing A.D. The jury could therefore have reasonably believed that C.G.’s conscious failure to protect A.D. on the two occasions in question showed that she intended to allow the sexual abuse to occur in order to maintain her relationship with M.D.

Viewing the evidence favorably to the State, as we must, we conclude that, in C.G.’s hierarchy of values, it was more important to enjoy a relationship with M.D. free of any confrontation over his danger to A.D. than it was to eliminate the risk to A.D. of sexual abuse by M.D. “Intent, we know, being a state or condition of the mind, is rarely, if ever, susceptible of direct or positive proof, and must usually be inferred from the facts testified to by witnesses and the circumstances as developed by the evidence.” Pumphrey v. State, 156 Ala. 103, 106, 47 So. 156, 157 (1908); see also Williams v. State, 795 So.2d 753 (Ala.Crim.App.1999); French v. State, 687 So.2d 202, 204 (Ala.Crim.App.1995), rev’d on other grounds, 687 So.2d 205 (Ala.1996); McCord v. State, 501 So.2d 520, 528-29 (Ala.Crim.App.1986).

The circumstances of this case are therefore distinguishable from the hypothetical case of the merely careless night watchman in the Commentary to § 13A-2-23(3). C.G., having breached her duty to A.D. in order to enjoy the continued favor of M.D., is comparable to the bribed watchman consciously looking the other way — not the sleepy watchman who derives no benefit from his wrongdoing. While we do not embrace such standards as “probability,” “substantial likelihood” or “very real possibility” included in the Court of Criminal Appeals’ discussion of intent, we conclude that the Court of Criminal Appeals reached the correct result. Therefore, we affirm the judgment of the Court of Criminal Appeals.

AFFIRMED.

MOORE, C.J., and HOUSTON, JOHNSTONE, and WOODALL, JJ, concur.

      . The Illinois accountability statute was codified at Ill.Rev.Stat.1985, ch. 38, par. 5-2(c), when the Appellate Court of Illinois decided Peters; it is now found at 720 ILCS 5/5-2.


author: SHAW, Judge. BASCHAB, Judge,

text:
    Ernest Hoyt WEBB v. STATE of Alabama.
    CR-00-2179.
    Court of Criminal Appeals of Alabama.
    April 26, 2002.
    Rehearing Denied June 21, 2002.

      Harmahinder Singh Bagga, Birmingham, for appellant.
    Bill Pryor, atty. gen., and Jean A. Ther-kelsen, asst. atty. gen., for appellee.
   SHAW, Judge.

AFFIRMED BY UNPUBLISHED MEMORANDUM.

McMILLAN, P.J., and COBB and WISE, JJ„ concur. BASCHAB, J., dissents, with opinion.

BASCHAB, Judge,

dissenting.

I must respectfully dissent. The record in this case does not indicate that the trial court ever advised the appellant about the dangers and disadvantages of self-representation, as required by Faretta v. California, 422 U.S. 806, 95 S.Ct. 2525, 45 L.Ed.2d 562 (1975), and did not advise him that he had the right to withdraw any waiver of the right to counsel at any time during the proceedings, as required by Rule 6.1(b), Ala. R.Crim. P. Therefore, we should reverse the trial court’s judgment and remand this case for a new trial. See Farid v. State, 720 So.2d 998 (Ala.Crim.App.1998); Hairgrove v. State, 680 So.2d 946 (Ala.Crim.App.1995), cert. denied, 680 So.2d 947 (Ala.1996).


author: BASCHAB, Judge. WISE, Judge,

text:
    Robert COPELAND v. STATE of Alabama.
    CR-01-0660.
    Court of Criminal Appeals of Alabama.
    April 26, 2002.
    Robert Copeland, pro se.
    Bill Pryor, atty. gen., and G. Ward Bee-son III, asst. atty. gen., for appellee.
   BASCHAB, Judge.

The appellant, Robert Copeland, was indicted for first-degree robbery. On November 11, 1988, he pled guilty to second-degree robbery. On November 14, 1983, the trial court sentenced him, as a habitual offender, to serve a term of life in prison. See § 13A-5-9(c)(2), Ala.Code 1975. He did not appeal his conviction. On August 15, 2001, the appellant filed a Rule 32 petition, challenging his conviction. After the State responded, the circuit court summarily denied his petition. This appeal followed.

The appellant argues that the trial court did not have jurisdiction to render a judgment and impose a sentence in his case because he allegedly pled guilty to an offense for which he had not been indicted. Specifically, he contends that second-degree robbery is not a lesser included offense of first-degree robbery and that the indictment against him did not allege that he was “aided by another person actually present.” (Appellant’s brief at p. 13.) In Cole v. State, 842 So.2d 605, 609 (Ala.2002), the Alabama Supreme Court held:

“When, as here, an indictment for first-degree robbery fails to set forth facts from which one might conclude that the defendant was aided in the robbery by another participant — an essential element of the offense of second-degree robbery — the insufficiency of the factual basis for a guilty plea to second-degree robbery may be subsequently attacked on the basis that the trial court lacked subject-matter jurisdiction to accept the plea. Had the trial court obtained Cole’s consent to amend the indictment charging first-degree robbery by adding the fact that another participant was present, no new offense would have been charged because first-degree robbery is broad enough to include such an element. An indictment so amended, permitting a defendant to plead guilty to second-degree robbery, would not run afoul of Rule 13.5(a). That, however, did not occur here. To treat the proceedings in this case as if the original indictment included that additional fact just because Cole pleaded guilty would disregard the settled principle that one cannot consent to an improper amendment to an indictment. See Murray v. State, [814 So.2d 1006 (Ala.Crim.App.2001)]; Wingard v. State, [821 So.2d 240 (Ala.Crim.App.2001) ]; Green v. State, [619 So.2d 952 (Ala.Crim.App.1993)]; Ross v. State, [529 So.2d 1074 (Ala.Crim.App.1988) ].”

The indictment against the appellant did not allege sufficient facts from which it could be concluded that another person aided him in the robbery. Additionally, we cannot determine from the record before us whether the appellant consented to amend the indictment against him to add the allegation that another person aided him in the robbery. Accordingly, we remand this case to the circuit court with instructions that that court make specific, written findings of fact as to whether the trial court obtained the appellant’s consent to amend the indictment against him to add the allegation that another person aided him in the robbery. On remand, the circuit court may require the State to respond specifically to the appellant’s claim that he was convicted of an offense for which he was not indicted and/or may conduct an evidentiary hearing on that claim. If the circuit court determines that the appellant did not consent to the amendment of the indictment against him to add the allegation that another person aided him in the robbery, then the circuit court shall vacate the appellant’s second-degree robbery conviction. The circuit court shall take all necessary action to see that the circuit clerk makes due return to this court at the earliest possible time and within 56 days after the release of this opinion. The return to remand shall include the circuit court’s specific, written findings of fact and, if applicable, the State’s response and a transcript of the evidentiary hearing.

REMANDED WITH INSTRUCTIONS.

McMILLAN, P.J., and COBB and SHAW, JJ., concur; WISE, J., concurs specially, with opinion.

WISE, Judge,

concurring specially.

I reluctantly concur with the main opinion’s remand of this case to the circuit court for further proceedings based on the Alabama Supreme Court’s holding in Ex parte Cole, 842 So.2d 605 (Ala.2002).

I recognize that this Court is bound by the decisions of the Alabama Supreme Court, see § 12-8-16, Ala.Code 1975, and “is without authority to overrule the decisions of that court.” Jones v. City of Huntsville, 288 Ala. 242, 244, 259 So.2d 288, 290 (1972). Thus, we have no choice but to remand this case for further proceedings to determine whether the appellant consented to “amending” his indictment, regardless of the fact that the record clearly indicates that the appellant was “aided by another person actually present” at the time the robbery was committed.


author: WISE, Judge.

text:
    D.Y. v. STATE of Alabama.
    CR-01-0507.
    Court of Criminal Appeals of Alabama.
    April 26, 2002.
    Richard K. Keith, Montgomery, for appellant.
    Bill Pryor, atty. gen., and J. Thomas Leverette, asst. atty. gen., for appellee.
   WISE, Judge.

D.Y. was granted youthful-offender status by the trial court, and pleaded guilty to, and was adjudicated guilty of, six counts of enticing a child into a residence or an automobile for immoral purposes, a violation of § 13A-6-69, Ala.Code 1975. The record reflects that D.Y. advised the court he had read the “Explanation of Rights and Plea of Guilt” form and that he was voluntarily and knowingly waiving those rights, as explained to him. The trial court informed D.Y. of the proper range of punishment for the charges to which he pleaded guilty, and D.Y. acknowledged his understanding of the terms of his plea agreement.

On appeal, D.Y. contends that the trial court erred when it sentenced him to six consecutive terms of three years’ imprisonment. He argues that such a sentence is illegal under the Alabama Youthful Offender Act, § 15-19-6, Ala.Code 1975. Because the law in Alabama clearly prohibits consecutive sentences for separate youthful-offender adjudications that exceed the statutory maximum of three years, D.Y.’s claim is meritorious; therefore, we must remand this cause for proper sentencing, in accordance with the Youthful Offender Act and with this opinion.

This Court has previously reviewed cases with factual bases nearly indistinguishable from those in the present case. In Hastings v. State, 549 So.2d 115 (Ala.Crim.App.1988), we stated:

“The main contention raised by appellant is that the trial court exceeded its authority in sentencing him to two consecutive three-year terms of imprisonment as a youthful offender. Such a sentence, he maintains, exceeds the maximum permitted for a youthful offender under § 15-19-6(a)(4). We agree.”

549 So.2d at 116. The court elaborated:

“In construing the Youthful Offender Act in such a way as to carry out what we believe to be the true legislative intent and with due deference to our supreme court’s opinion in Ex parte Jackson, [415 So.2d 1169 (Ala.1982) ] we find that § 15-19-6(a)(4) establishes a maximum sentence of imprisonment for a youthful offender of three years. Consecutive sentences totaling more than three years, as ordered in the instant case, would be an incongruous interpretation of the statute and would frustrate the intent and purpose of the Act....
“... [T]he [trial] court exceeded its powers by ordering that appellant’s sentences run consecutively, for this order subjected appellant, in essence, to a sentence greater than three years. If the trial court was of the belief that the appellant required incarceration for a period longer than three years, youthful offender status should not have been granted. The judgment of the lower court, therefore, should be modified to provide that the sentences run concurrently and not consecutively.”

549 So.2d at 116-17. See also McWilliams v. State, 587 So.2d 1064 (Ala.Crim.App.1991). In Ex parte Jackson, 415 So.2d 1169, 1170, (Ala.1982), Justice Beatty, writing for the Court, noted:

“By the enactment of the Youthful Offender Act, the legislature not only sought to provide an alternative method of sentencing minors, but, in fact, created a procedure separate and apart from the criminal procedure dealing with adults accused of the same offense. Raines v. State, 294 Ala. 360, 317 So.2d 559 (1975). Code of 1975, § 15-19-6(a)(2), establishes the maximum probationary sentence or period allowable for a youth offender, i.e., three years. That limitation on a sentence of probation is obviously one of the intended advantages of the Act. By comparison, the maximum probationary period for ‘adult’ defendants found guilty of a felony is five years. Code of 1975, § 15-22-54(a). Hence, consecutive sentences of probation would thwart the intention of the legislature. Although the Youthful Offender Act does not prohibit the imposition of separate or multiple sentences of probation, clearly each probationary sentence must run from the time of sentencing rather than from the end of the preceding probationary period.”

Accord Ex parte L.R., 586 So.2d 174 (Ala.1991).

Clearly, consecutive sentences for a youthful offender that total more than three years are not permitted under the Act. While it is our belief that abhorrent acts such as those that involve the victimization of children should be treated with all seriousness and be punished as the law permits, we acknowledge the discretion of the trial court to adjudicate this matter in accordance with the Youthful Offender Act with a less severe penalty than would ordinarily be afforded a defendant under the facts presented by this case.

Based on the foregoing, we remand this case to the circuit court with instructions to modify the sentencing order heretofore entered so as to require that the sentences of three years’ imprisonment in each count run concurrently. The circuit court should take the necessary action to ensure that the circuit clerk makes due return to this Court at the earliest possible time and within 28 days from the date of this opinion.

REMANDED WITH DIRECTIONS.

McMILLAN, p.j., and COBB, BASCHAB, and SHAW, JJ., concur.


text:
    Deshone YARBROUGH v. STATE of Alabama.
    CR-01-0287.
    Court of Criminal Appeals of Alabama.
    June 28, 2002.

      Deshone Yarbrough, pro se.
    Bill Pryor, atty. gen., and Stephanie N. Morman, asst. atty. gen., for appellee.
   WISE, Judge.

The appellant, Deshone Yarbrough, appeals the circuit court’s denial of his petition for postconviction relief, filed pursuant to Rule 32, Ala.R.Crim.P., in which he attacked his 2000 convictions for first-degree burglary and second-degree assault. Yarbrough’s convictions were the result of a negotiated plea agreement. As part of that plea agreement, Yarbrough expressly agreed “to waive his right to appeal or contest, directly or collaterally, his conviction or sentence on any ground, unless the Court ... impos[ed] a sentence in excess of the statutory maximum or was without jurisdiction to enter the judgment or impose the sentence.”

Despite executing the aforementioned waiver, Yarbrough filed a Rule 32 petition on August 27, 2001, claiming (1) that his plea was involuntary, and (2) that his trial counsel had rendered ineffective assistance. On September 26, 2001, the State filed a response to Yarbrough’s petition, requesting that the trial court summarily deny the petition based on the waiver Yar-brough executed as part of his plea agreement. The circuit court, in a detailed and well-written order, denied Yarbrough’s petition. (C. 4-12.) The court’s order addressed the merits of Yarbrough’s claims, rejecting his claims that his pleas were involuntary and that his counsel was ineffective. Additionally, the court stated that because Yarbrough had waived his right to challenge any nonjurisdictional issues, his petition was precluded. This appeal followed.

Yarbrough argues that in light of the claims presented, the circuit court erred in denying his petition. We disagree.

Initially, we note that the circuit court’s finding that the grounds asserted in Yarbrough’s petition were precluded based on the fact that he had executed a waiver of appeal is incorrect. This Court recently rejected this finding in Boglin v. State, 840 So.2d 926, 929-30 (Ala.Crim.App.2002), wherein we stated:

“It is well settled that a defendant may, as part of a negotiated plea agreement, agree to waive his right to appeal ‘so long as he is fully advised of its implications and he voluntarily agrees to enter into the agreement.’ Watkins v. State, 659 So.2d 688, 689 (Ala.Crim.App.1994). See also Dunn v. State, 514 So.2d 1300 (Ala.1987); Watson v. State, 808 So.2d 77 (Ala.Crim.App.2001); Jones v. State, 675 So.2d 69 (Ala.Crim.App.1995); and Gwin v. State, 456 So.2d 845 (Ala.Crim.App.1984). ‘[A] colloquy with the defendant that reflects that he or she was informed of the right to appeal and that he or she chose to waive this right is sufficient to show a valid and enforceable waiver.’ Watson, 808 So.2d at 80. In addition, just like a challenge to the voluntariness of a guilty plea, the issue of the voluntariness of a waiver of the right to appeal will be reviewed on direct appeal if it is first presented to the trial court.
“The Alabama Supreme Court has held that the voluntariness of a guilty plea may be raised for the first time in a Rule 32 petition. See Cantu v. State, 660 So.2d 1026 (Ala.1994). The presence of a waiver of the right to collateral review should not bar review of the vol-untariness of a guilty plea because, as noted above, an involuntary guilty plea will necessarily render the waiver involuntary and a waiver cannot be enforced if it is not voluntary. For this same reason, the voluntariness of the waiver itself may also be reviewed in a Rule 32 petition. In addition, because ineffective assistance of counsel may, in some circumstances, render a guilty plea involuntary, see Ex parte Blackmon, 734 So.2d 995 (Ala.1999), we believe that claims of ineffective assistance of trial counsel may also be raised in a Rule 32 petition, despite a waiver of collateral review.”

Thus, the circuit court should not have concluded that Yarbrough’s petition was precluded. Nevertheless, this ruling does not require an automatic reversal of the circuit court’s judgment, given that the court also addressed the merits of Yar-brough’s claims.

The judge who considered Yarbrough’s petition was the same judge who had accepted his guilty plea. The judge recalled Yarbrough’s plea. Moreover, she reviewed the transcript of Yarbrough’s plea colloquy and all relevant documents to satisfy herself that Yarbrough had entered the pleas voluntarily and with an understanding that his plea agreement included a waiver of appellate review, and further, that there was a factual basis for the plea. See Alford v. State, 651 So.2d 1109, 1112 (Ala.Crim.App.1994). Based on its review of the plea colloquy, the court rejected Yarbrough’s claim that he did not understand the nature of the charge and the consequences of his plea. Although Yar-brough’s brief contends otherwise, the weight of the evidence supports the finding of the circuit court. See Harris v. State, 637 So.2d 906, 907 (Ala.Crim.App.1993) (conflicts in the evidence are for the court to resolve). Thus, the court correctly determined that there was no merit to Yar-brough’s claim that his guilty plea was involuntary.

Yarbrough also contends that his trial counsel was ineffective. A petitioner in a Rule 32 proceeding has the burden of pleading and proving his allegations. Eddins v. State, 581 So.2d 574 (Ala.Crim.App.1991); Rule 32.3, Ala.R.Crim.P. To prevail on a claim of ineffective assistance of counsel, a petitioner must show (1) that his counsel’s performance was deficient and (2) that he was prejudiced by the deficient performance. Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984); Ex parte Lawley, 512 So.2d 1370, 1372 (Ala.1987). In the context of guilty-plea proceedings, a petitioner must also show that but for counsel’s errors, the petitioner would not have pleaded guilty, but would, instead, have insisted on proceeding to trial. Hill v. Lockhart, 474 U.S. 52, 58-59, 106 S.Ct. 366, 88 L.Ed.2d 203 (1985).

Yarbrough claims that his counsel was ineffective because, he says, counsel advised him to plead guilty, “even though petitioner did not commit the elements of the crime of Burglary I.” Yarbrough’s claim was based on his assertion that he had permission to enter the residence. By Yarbrough’s own admission during the plea colloquy, he broke the door down and entered the house, and at the time he did so he understood that he was not authorized to enter the victim’s house. Thus, there is no merit to Yarbrough’s claim that his counsel coerced him into pleading guilty for a crime he did not commit. The court concluded that because there was a factual basis for the first-degree burglary conviction and therefore, Yarbrough’s plea was neither coerced nor involuntarily entered, there was no merit to this claim.

Yarbrough also claims that his trial counsel was ineffective for failing to file a motion to dismiss the indictment. The court found that “the indictment was in the proper form required by Rule 12.8 and Form 55, Alabama Rules of Criminal Procedure.” Counsel is not ineffective for failing to file a motion for which there is no legal basis. Bedwell v. State, 710 So.2d 493, 497 (Ala.Crim.App.1997); Patrick v. State, 680 So.2d 959, 963 (Ala.Crim.App.1996).

Yarbrough next claims that his trial counsel was ineffective because, he says, counsel failed to discuss defense strategy with him before the scheduled trial date and that his counsel failed to appear for court on the trial date. The court rejected this claim, based on its recollection of events and an affidavit from counsel setting out his actions while representing Yarbrough. A mere difference of opinion between a defendant and his trial counsel is insufficient to render counsel’s performance ineffective. Patrick v. State, 680 So.2d at 962. Thus, the circuit court correctly denied relief based on these claims.

Finally, we note that Yarbrough raises several claims in his initial brief and in his reply brief that are being raised for the first time on appeal. Because these claims are not properly before this Court, we will not address them. See Kaska v. State, 740 So.2d 475, 477 (Ala.Crim.App.1998) (“‘an appellant cannot raise issues on appeal from the denial of a Rule 32 petition that were not raised in the Rule 32 petition’ ”).

The circuit court’s findings are supported by the record on appeal and the court’s personal knowledge of the plea proceedings. See Sheats v. State, 556 So.2d 1094, 1095 (Ala.Crim.App.1989). Because Yarbrough’s claims were without merit, the court did not err in summarily denying Yarbrough’s petition. See Tatum v. State, 607 So.2d 383, 384 (Ala.Crim.App.1992); Rule 32.7(d), Ala.R.Crim.P.

Based on the foregoing, the judgment of the circuit court is affirmed.

AFFIRMED.

McMILLAN, P.J., and COBB, BASCHAB, and SHAW, JJ., concur.


author: COBB, Judge.

text:
    Larry Doyle HANNA v. STATE.
    CR-01-0333.
    Court of Criminal Appeals of Alabama.
    June 28, 2002.

      Larry Doyle Hanna, pro se.
    Andrew W. Redd, gen. counsel, and Kim T. Thomas, asst. gen. counsel, Department of Corrections, for appellee.
   COBB, Judge.

Larry Doyle Hanna appeals from the circuit court’s summary dismissal of his petition for a writ of habeas corpus.

On September 10, 2001, Hanna filed a petition for a writ of habeas corpus in Jefferson County Circuit Court, the county where he was incarcerated, challenging the legality of the sentence imposed upon him by the Tuscaloosa Circuit Court following his conviction for possession of marijuana. After the State responded, the circuit court summarily denied the petition.

As best we can discern, Hanna claimed the following in his petition. On November 14, 1990, he pleaded guilty in the Tuscaloosa Circuit Court to possession of marijuana and was sentenced to 10 years in prison. He applied for probation at sentencing, but the trial court did not rule on his request. On February 8,1994, after Hanna served approximately four years of his sentence, the trial court, according to Hanna, unlawfully issued an order “splitting” Hanna’s 10-year sentence pursuant to § 15-18-8, Ala.Code 1975. Pursuant to the newly imposed split sentence, Hanna was to serve two more years in prison followed by three years’ probation. On January 29, 1996, after completing the two-year portion of his “split” sentence, Hanna was released from prison on probation. On June 21, 2000, the trial court found Hanna in violation of his probation and Hanna’s probation was revoked. Hanna was ordered to serve the remainder of his 10-year sentence. On August 11, 2000, Hanna was returned to prison.

Hanna claimed that the trial court did not have jurisdiction four years after it sentenced Hanna to “split” his sentence. He argues that his sentence is illegal, and that, as a result, he is being held in custody after the expiration of his original sentence. See, Rules 32.1(b), (c) and (d), Ala. R.Crim.P.

Hanna’s petition for a writ of habeas corpus should have been treated as a Rule 32, Ala.R.Crim.P., petition because the claims made in the petition challenged the legality of his sentence.

“Rule 32.4, Ala.R.Crim.P., specifically provides that other than posttrial motions under Rule 24 and an appeal ‘any ... post-conviction petition seeking relief from a conviction or sentence shall be treated as a proceeding under [Rule 32].’ ‘Habeas corpus is not the correct remedy to correct errors and irregularities in a trial in a court of competent jurisdiction.’ Smith v. State, 440 So.2d 1222, 1224 (Ala.Crim.App.1983).”

Cayson v. State, 778 So.2d 261, 262 (Ala.Crim.App.2000).

“ ‘Rule 32.5 clearly provides:
“ ‘ “Petitions filed under this rule shall be filed in and decided by the court in which the petitioner was convicted. If a petition is filed in another court, it shall be transferred to the court where the conviction occurred.”
“ ‘See also Rivera v. State, 615 So.2d 659 (Ala.Crim.App.1992) (“Rule 32 petitions are properly entertained by the court in which the defendant was convicted”).’ ”

Cayson v. State, 778 So.2d at 262 (quoting Hiett v. State, 642 So.2d 492, 493-94 (Ala.Crim.App.1993)).

The Jefferson Circuit Court is not the court of conviction; thus, that court had “ ‘no authority to dispose of the petition.’ ” Cayson v. State, 778 So.2d at 262 (quoting Hiett, 642 So.2d at 493). The Jefferson Circuit Court did not have jurisdiction to dispose of Hanna’s Rule 32 petition because Jefferson County is not the county of Hanna’s conviction. Therefore, the judgment of the circuit court denying the petition for the writ of habeas corpus is reversed. This cause is remanded with directions for the Jefferson Circuit Court to transfer the petition to the Tuscaloosa Circuit Court. The Tuscaloosa Circuit Court, as the circuit court of original jurisdiction, may address Hanna’s issues, which are cognizable in a Rule 32 petition.

REVERSED AND REMANDED.

McMILLAN, P.J., and BASCHAB, SHAW, and WISE, JJ., concur.

      . Hanna was an inmate at the Donaldson Correctional Facility in Bessemer, Alabama.


author: BASCHAB, Judge.

text:
    Kali Krystal VERZONE v. STATE of Alabama.
    CR-01-0652.
    Court of Criminal Appeals of Alabama.
    June 28, 2002.
    Vader A1 Pennington, Mobile, for appellant.
    Bill Pryor, atty. gen., and G. Ward Bee-son III, asst. atty. gen., for appellee.
   BASCHAB, Judge.

The appellant, Kali Krystal Verzone, was indicted for first-degree robbery, and she pled guilty to third-degree robbery, a violation of § 13A-8 — 43, Ala.Code 1975. The trial court sentenced her to serve a term of ten years in prison, but split the sentence and ordered her to serve a term of three years in prison followed by five years on supervised probation. The appellant did not file any post-judgment motions. This appeal foEowed.

The record on appeal in this case does not include a transcript of a guEty plea coEoquy between the appeEant and the trial court. The appeEant argues that “[t]he lack of coEoquy in the present case creates problems concerning the voluntariness of the plea and the jurisdiction of the Trial Court to accept the plea and without the coEoquy the plea and sentence cannot survive review.” (Appellant’s brief at p. 10.) We agree.

Rule 14.4, Ala. R.Crim. P., provides, in pertinent part:

“(a) CoEoquy With Defendant. In all minor misdemeanor cases, the execution of a form simEar to Form 68 wEl be sufficient and no coEoquy shall be required. In all other cases, except where the defendant is a corporation or an association, the court shall not accept a plea of guEty without first addressing the defendant personally in the presence of counsel in open court....
“(c) Record of Proceedings. A verbatim record of the proceedings at which the defendant enters a plea of guEty to a felony shall be made....
“(d) Use of Form. The court may comply with the requirements of Rule 14.4(a) by determining from a personal coEoquy with the defendant that the defendant has read, or has had read to the defendant, and understands each item contained in Form 68, 69, 70, or Form 71, as the case may be.”

The Committee Comments to Rule 14.4, Ala. R.Crim. P., provide, in pertinent part:

“Section (a) adopts the requirement that the court address the defendant personally in open court in the presence of counsel (unless counsel has been waived pursuant to Rule 6.1(b)) and is applicable in all cases except those involving minor misdemeanors and offenses where the defendant is a corporation. ... This procedure is called for by ABA, Standards for Criminal Justice, Pleas of Guilty 14-1.4 (2d ed.1986), and is widely practiced by Alabama trial judges. See, e.g., Johnson v. State, 52 Ala.App. 94, 289 So.2d 662 (1973). The record should affirmatively reflect the questions asked and the defendant’s responses. This practice mil protect the courts by providing an adequate basis for review on appeal.
“Section (c) requires that the court keep a verbatim record of pleas of guilty to felonies. In Jarman v. State, 54 Ala.App. 557, 310 So.2d 481 (1975), the appellant pleaded guilty to a misdemeanor and was sentenced to 90 days’ imprisonment. The court reversed and remanded, since the ‘record [was] completely devoid of any coEoquy between the trial judge and the appeEant and his attorney, which is necessary to show compliance with Boykin,’ pointing out that ‘[t]he record itself or the minute entry must affirmatively reflect the questions asked and answers given at the time of taking the guEty plea’ quoting Allen v. State, 50 Ala.App. 310, 278 So.2d 758 (1973), citing McGullion v. State, 49 Ala.App. 248, 270 So.2d 680 (Ala.Crim.App.1972).
“Section (d) is included to accommodate the current Alabama practice of informing the defendant of his rights through a form similar to that approved in Ireland v. State, 47 Ala.App. 65, 250 So.2d 602 (1971), and subsequent cases. The rule, however, specifically retains the requirement that the trial judge personally address the defendant in order to determine that he understands the contents of the form and that the judge specifically question the defendant concerning the information contained in each item. Thus, in every case, the record should affirmatively show a colloquy between the trial judge and the defendant concerning all such matters. Twyman v. State, 293 Ala. 75, 300 So.2d 124 (1974), held that where the record affirmatively shows that the defendant was informed of and understood his rights, the record need not include a full transcript of the colloquy. Subsequent cases in the Court of Appeals have held that while a full colloquy is not required where the form is used, the record must show that the trial judge made inquiry as to the defendant’s understanding of the rights set out in the form. This rule requires such a colloquy and requires that specific inquiry be made with regard to the rights set out in Rule 14.4(a)(1) and (2). Such procedure will ensure that the form herein approved does not ‘become so commonplace and perfunctory that [it fails] to serve the purpose for which [it is] intended.’ See Twyman v. State, 293 Ala. 75, 83, 300 So.2d 124, 131 (1974) (Heflin, C.J., dissenting).”

(Emphasis added.)

The appellant raises arguments challenging the voluntariness of her guilty plea and the trial court’s jurisdiction to accept her plea. Without a transcript of the guilty plea colloquy, if the trial court conducted one, we cannot determine whether the appellant preserved any of these arguments for our review, and we cannot determine whether the trial court had jurisdiction to accept the appellant’s guilty plea. Cf. Jones v. State, 727 So.2d 889 (Ala.Crim.App.1998) (holding that, because the prosecutor did not dispute the assertion that the trial court had incorrectly advised the appellant of the maximum and minimum sentences she faced by pleading guilty, this court had an adequate record upon which to base a review of the appellant’s argument); Harris v. State, 563 So.2d 9 (Ala.Crim.App.1989) (holding that reversal was not required because, by pleading guilty, the appellant had waived the argument he raised on appeal). Because the trial court has indicated that a transcript of the guilty plea colloquy, if any, is not available, we must reverse the trial court’s judgment and remand this case to the trial court for new guilty plea proceedings or for a jury trial. See Wesson v. State, 594 So.2d 233 (Ala.Crim.App.1991); Daughtry v. State, 587 So.2d 1285 (Ala.Crim.App.1991).

REVERSED AND REMANDED.

McMILLAN, P.J., and COBB and WISE, JJ., concur; SHAW, J., concurs in the result.

      . After the record on appeal in this case had been certified as complete, the appellant attempted to have it supplemented with a transcript of the guilty plea colloquy. The trial court conducted a hearing and then entered the following on the case action summary sheet: "Although the colloquy of the Defendant’s prior plea of guilty has not been located by the Court Reporter, this Court knows she was advised of all of her Boykin warnings prior to accepting the plea of guilty.” (S.R.1 6.) Subsequently, defense counsel submitted an affidavit in which he stated: "At the time of her guilty plea, the Court stated that it would proceed on the Ireland form and no colloquy was ever conducted.... [T]here was no colloquy conducted by the Court. The Court entered the plea of guilty based upon the Ireland form.” (S.R.2 10-11.) Therefore, there is conflicting evidence as to whether the trial court conducted a personal colloquy with the appellant in this case. However, because we cannot adequately review the appellant’s arguments without a transcript of the guilty plea colloquy, and because the trial court has indicated that the court reporter cannot locate a transcript of any colloquy with the appellant, we must remand this case for new proceedings, and we are not required to resolve this conflict.


author: WISE, Judge. BASCHAB, Judge,

text:
    Dale William GILLEY, Jr. v. STATE of Alabama.
    CR-01-1371.
    Court of Criminal Appeals of Alabama.
    June 28, 2002.
    Dale William Gilley, Jr., pro se.
    Bill Pryor, atty. gen., and Beth Slate Poe, asst. atty. gen., for appellee.
   WISE, Judge.

AFFIRMED BY UNPUBLISHED MEMORANDUM.

McMILLAN, P.J., and COBB, J., concur. SHAW, J., concurs in the result. BASCHAB, J., dissents, with opinion.

BASCHAB, Judge,

dissenting.

Because I believe the circuit court is in a better position than this court to evaluate the validity of a request for post-conviction DNA testing, I must respectfully dissent. See my dissent in Dowdell v. State, [Ms. CR-01-0610, June 28, 2002] — So.2d — (Ala.Crim.App.2002).