text:
    Harry JACKSON, Jr., Appellant, v. STATE of Mississippi, Appellee.
    No. 2003-KA-00384-COA.
    Court of Appeals of Mississippi.
    May 25, 2004.
    Rehearing Denied Sept. 7, 2004.
    Certiorari Denied Nov. 4, 2004.

      James H. Arnold, Durant, attorney for appellant.
    Office of the Attorney General by John R. Henry, attorney for appellee.
    Before SOUTHWICK, P.J., THOMAS, IRVING and GRIFFIS, JJ.
   THOMAS, J.,

for the Court.

¶ 1. Harry Jackson, Jr. was convicted in the Circuit Court of Amite County of sale of a schedule II controlled substance and was sentenced to a term of twenty years in the custody of the Mississippi Department of Corrections, with fifteen to serve and the remaining five years on post-release supervision. Aggrieved, he asserts the following issues on appeal:

I. THE EVIDENCE WAS INSUFFICIENT TO SUPPORT THE VERDICT AND, ALTERNATIVELY, THE VERDICT WAS AGAINST THE OVERWHELMING WEIGHT OF THE EVIDENCE.

II. PROSECUTORIAL MISCONDUCT DENIED JACKSON A FAIR TRIAL.

III. THE TRIAL COURT ERRED IN FAILING TO GIVE AN INSTRUCTION THAT SANDER’S PRIOR INCONSISTENT STATEMENT COULD NOT BE USED AS SUBSTANTIVE EVIDENCE.

Finding no error, we affirm.

FACTS

¶ 2. On April 2, 2001, Mississippi Bureau of Narcotics agents prepared to make a purchase of narcotics in Amite County, Mississippi. The agents met with a confidential informant and decided to attempt to purchase narcotics from Reginald Graves. Agent Jason Powell went undercover with the confidential informant after the usual preliminary matters were completed. When Graves was contacted at his residence, he told Powell that he did not have any drugs on hand. Graves got in the car with the informant and Powell and took them to a location in Gloster, Mississippi. Another agent followed in an unmarked car and listed to a wireless transmission from Agent Powell.

¶ 3. At the location in Gloster, Graves got out of the car and went and talked to a group of men. He returned and they left the area. They drove around for a few minutes and returned. Graves again got out of the car and returned again, telling Powell and the informant that the drugs still needed to be weighed and that they had to leave and come back shortly. Graves, Powell, and the informant left and went to the Car Quest auto parts store in Gloster. A short while later, a car passed and Graves remarked that the drugs were in that car and that they could return to the location to pick them up. They returned and pulled in behind the car that had passed them at the Car Quest. When Graves got out of the car, Powell radioed the tag number in to other agents. The car was registered to Harry Jackson, Jr.

¶ 4. Graves approached two men standing near the car and separate from the others. He returned to the car and asked for money. Powell gave Graves $850. Graves returned to the two men. After some movements with their hands, Graves returned to the vehicle with a bag of white powder. Graves elected to stay at the location and not leave with the informant and Powell. Upon leaving, Powell rendezvoused with the other agents. Powell identified through photo identification Harry Jackson and Murphy Sanders as the two men Graves dealt with in the cocaine buy. The substance sold to Powell was 25.3 grams of cocaine.

¶ 5. At trial, Agent Powell testified along with Agent Sheldon Joliff, the agent that had monitored the wireless transmission and followed in an unmarked car. Powell testified that Jackson’s car was the vehicle Graves said carried the drugs, that it was present at the scene, and that Jackson was one of the two people to whom Graves had given the money and gotten the cocaine.

¶ 6. The defense presented its case by first calling Graves to testify. Graves testified that his cousin, Navaree Green, was driving Jackson’s car because he had been in the process of buying the car from Jackson. Graves testified that Jackson was not present on that particular day at the scene and that Green was the individual who had participated in the sale of the cocaine. Graves admitted that Green was a short, stout man and Jackson was a tall, slender man and that it would be difficult to confuse the two. Graves also testified that Green had died prior to trial and was unavailable to testify. Graves testified that Powell had been drinking beer and that Jackson’s car was burgundy rather than green as testified to by Powell and Joliff.

¶ 7. Jackson called Murphy Sanders to testify. Sanders admitted to being at the scene although he did not know if Jackson was there or not. He also testified that he did not know Navaree Green and could not say if he was present. Sanders testified that he did not know of any sale of cocaine and had not taken part in the sale. Upon this testimony, the district attorney asked Sanders if he made a statement to a deputy after his arrest that Jackson was present and that Jackson had offered Sanders $100 if he would help Jackson sell some dope. Sanders admitted talking to the deputy and at one point admitted telling the deputy that he took credit that day because of his children. Sanders would neither confirm or deny the other statements testifying instead that he did not know or could not remember what he told the deputy.

¶ 8. The defense then called Nekiesha Simmons, Jackson’s ex-girlfriend. Simmons invoked her Fifth Amendment privilege against self-incrimination and refused to testify. The court held an off-the-record hearing regarding Simmons’s testimony and decided to treat her as an unavailable witness. In doing so, the court allowed sworn testimony by Simmons given at a previous hearing. In the testimony, Simmons stated that she was in Massachusetts in April 2001 and that Jackson had flown up to see her in Massachusetts for two weeks at the beginning of April and he could not have been present in Amite County, Mississippi, on April 2, 2001. At the time of the testimony, Simmons was employed in Georgia in law enforcement, but she had not attempted to contact anyone or do anything to help Jackson prior to her testimony. Simmons stated that Jackson’s sister worked for Continental Airlines and that Jackson flew Continental because his sister could provide him with inexpensive tickets.

¶ 9. In rebuttal, the State called a supervisor of ticket documentation for Continental Airlines. She testified that Jackson did fly to the Northeast in April 2001, but not until April 20. The information showed Jackson returned on April 23. She testified that Jackson had an electronic ticket and that he would have had to show photo identification in order to board the flights. The State then introduced documentation received from the defense which showed a flight by Jackson on March 31 with a return date of April 23. The supervisor noted that all of the flight numbers and data were the same as on her official records and concluded that the documents showing a departure of March 31 were forged. She testified that it would have had to have been done on a typewriter or computer outside of Continental because Continental’s records have not been altered.

¶ 10. The State then called Deputy Tim Wroten, the deputy that had talked to Murphy Sanders at his arrest. Wroten admitted that he did not take an official statement from Sanders but testified that Sanders told him that Jackson had gotten the cocaine in McComb and offered Sanders $100 to help him sell it. Wroten testified that Sanders told him the cocaine would not sell in McComb because it was low quality so it was brought to Gloster and that it was not worth the $100 Jackson had offered him. At the conclusion of trial, the jury returned a guilty verdict.

I. WAS THE EVIDENCE INSUFFICIENT TO SUPPORT THE VERDICT AND, ALTERNATIVELY, WAS THE VERDICT AGAINST THE OVERWHELMING WEIGHT OF THE EVIDENCE?

¶ 11. Jackson argues that the evidence was insufficient to support the verdict, and, alternatively, the verdict was against the overwhelming weight of the evidence. Jackson asserts in his brief that at most, the prosecution proved that he was present at the scene of a drug deal. According to Jackson, there was not proof beyond a reasonable doubt that both of the men were involved in the drug deal and that, if only one man was involved, it was Jackson.

¶ 12. The State argues that the evidence was sufficient, with testimony clearly implicating Jackson as being one of the two men from whom Graves obtained cocaine. The State also makes note that Jackson’s car was at the scene and that Graves remarked that it carried the cocaine when it passed the Car Quest parking lot. In support of its argument, the State refers this Court to Hollins v. State, 799 So.2d 118 (Miss.Ct.App.2001), which dealt with a constructive sale. In Hollins, this Court stated, “it is not necessary that the defendant exercised dominion or control over the drugs; simply that he aided and abetted in the sale is enough to make him guilty as a principal in the crime.” Hollins, 799 So.2d at 121(¶ 6) (citing Turner v. State, 573 So.2d 1340, 1341 (Miss.1990)).

¶ 13. A motion for a directed verdict, request for peremptory instruction, and motion for judgment notwithstanding the verdict all challenge the legal sufficiency of the evidence. McClain v. State, 625 So.2d 774, 781 (Miss.1993). In deciding whether the prosecution has presented sufficient evidence to sustain the verdict, the court should accept as true all credible evidence consistent with the defendant’s guilt and the State must be given the benefit of all favorable inferences that may be reasonably drawn from the evidence. Id. A reviewing court should only reverse where, with respect to one or more of the elements of the offense charged, the evidence is such that reasonable and fair-minded jurors could only find the accused not guilty. Wetz v. State, 503 So.2d 803, 812 (Miss.1987).

¶ 14. The prosecution provided evidence that Jackson was present and intimately involved with the sale of cocaine to the undercover agent through Graves. It need not prove that Jackson handed the cocaine directly to the agent or that he personally profited from the sale in order to be found guilty as a principal. Turner, 573 So.2d at 1342 (citing Miss.Code Ann. Section 97-1-3 (Rev.2000)).

¶ 15. The standard of review in determining whether a jury verdict is against the overwhelming weight of the evidence is also well settled. “[T]his Court must accept as true the evidence which supports the verdict and will reverse only when convinced that the circuit court has abused its discretion in failing to grant a new trial.” Collins v. State, 757 So.2d 335, 337(¶ 5) (Miss.Ct.App.2000) (quoting Dudley v. State, 719 So.2d 180, 182(¶ 9) (Miss.1998)). On review, the State is given “the benefit of all favorable inferences that may reasonably be drawn from the evidence.” Collins, 757 So.2d at 337(¶ 5) (citing Griffin v. State, 607 So.2d 1197, 1201 (Miss.1992)). “Only in those cases where the verdict is so contrary to the overwhelming weight of the evidence that to allow it to stand would sanction an unconscionable injustice will this Court disturb it on- appeal.” Collins, 757 So.2d at 337(¶ 5) (quoting Dudley, 719 So.2d at 182).

¶ 16. Jackson’s defense at trial amounted to his claim that he was not at the scene of the sale. Graves testified that Jackson was not there, but instead a deceased cousin, who was buying Jackson’s car, had participated in the drug deal. Graves admitted, however, that his cousin was a short, stout man and Jackson was a tall, slender man and that it would be difficult to confuse the two. Murphy Sanders also testified that Jackson was not present at the scene. Sanders’ testimony was impeached with statements he made to the police incident to his arrest. Jackson then called a former girlfriend who was to testify that he had been in Massachusetts with her at the time of the sale. The' former girlfriend pled the Fifth and prior testimony was admitted instead. Airline records were later used to impeach her testimony. Jackson now attempts to have his proverbial cake and eat it too as he argues that .the State at most, proved he was present at a drug sale.

¶ 17. The trial court correctly instructed the jury in instruction number two as follows:

The guilt of a defendant in a criminal case may be established without proof that the defendant personally did every act constituting the offense alleged. The law recognizes that, ordinarily, anything a person can do for himself may also be accomplished by that person through the direction of another person as his or her agent, or by acting in concert with, or under the direction of, another person or persons in a joint effort or enterprise.
If another person is acting under the direction of the defendant or if the defendant joins another person and performs acts with the intent to commit a crime, the law holds the defendant responsible for the acts and conduct of such other persons just as though the defendant had committed the' acts or engaged in the conduct.
Before any defendant may be held criminally responsible for the acts of others, it is necessary that the accursed deliberately associate himself in some way with the crime and participate in it with the intent to bring about the crime.
Of course, mere presence at the scene of a crime and knowledge that a crime is being committed are not sufficient to establish that a defendant either directed or aided and abetted the crime, unless you find beyond a reasonable doubt that the defendant was a participant and not merely a knowing spectator.
In other words, you may not find any defendant guilty unless you find beyond a reasonable doubt that every element of the offense as defined in these instructions was committed by some person or persons, and that the defendant voluntarily participated in its commission with the intent to violate the law.

¶ 18. It is for the jurors to resolve conflicts in testimony, Hollins, 799 So.2d at 122(¶ 10). They may accept or reject any utterances they hear based upon hearing and observing the witnesses as they testify. Id. (citing Jackson v. State, 614 So.2d 965, 972 (Miss.1993)). The reviewing court cannot and need not determine which witness or testimony the jury believed or disbelieved; it is enough that the conflicting evidence presented a factual dispute for jury resolution. Id. “The jury is the sole judge of credibility of witnesses and the jury’s decision based on conflicting evidence will not be set aside where there is substantial and believable evidence supporting the verdict.” Id. (quoting Billiot v. State, 454 So.2d 445, 463 (Miss.1984); Harrigill v. State, 381 So.2d 619, 623 (Miss.1980); Gathright v. State, 380 So.2d 1276, 1278 (Miss.1980)). This issue is without merit.

II. DID PROSECUTORIAL MISCONDUCT DENY JACKSON A FAIR TRIAL?

¶ 19. Jackson asserts that the testimony of Tim Wroten was not exactly as it was characterized to be by the prosecution. Wroten was called in rebuttal to testimony given by Murphy Sanders on cross-examination. Jackson argues that Wroten’s testimony provided the missing link needed by the prosecution to convict Jackson, and that the prosecution’s actions were in bad faith and provided substantive evidence rather than simply to impeach credibility.

¶ 20. Jackson did not object on the ground of prosecutorial misconduct and did not raise this issue in his motion for a new trial. The only objection was a claim that the facts were not in evidence, which has not been renewed here. “An objection to the testimony of a witness, conduct of opposing counsel or a remark of the court should be made contemporaneously with the occurrence or matter complained of so that the court may, when possible, correct the error with proper instructions to the jury.” Baker v. State, 327 So.2d 288, 292 (Miss.1976). Failure to raise a timely objection will bar the issue on appeal. Smith v. State, 724 So.2d 280 (¶ 168) (Miss.1998).

¶ 21. Notwithstanding the procedural bar, on cross-examination Sanders admitted talking to Tim Wroten. Sanders denied saying he and Jackson had sold cocaine, and denied specific information about Jackson obtaining the cocaine from McComb, offering Sanders $100 to help him sell it, and that Jackson had taken the money and handed the cocaine to Graves. Sanders stated that he took credit for the sale because of his children before retracting his statement and saying he did not remember what he told Wroten.

¶ 22. Wroten testified that Sanders told him Jackson had gotten the cocaine from McComb and had offered Sanders $100 to help him sell it. The prosecutor did not ask Wroten about Sanders’s statements regarding Jackson taking the money and handing the drugs to Graves. As stated above, the prosecution did not have to prove Jackson handed the drugs to Graves or took the money in order to prove a constructive sale. Hollins, 799 So.2d at 121(¶ 6) (citing Turner v. State, 573 So.2d at 1341). Jackson has failed to show that the prosecutor acted in bad faith. The prosecutor had reason to ask Sanders about his statements to Wroten because they implicated Jackson and his involvement in the drug sale. Prosecutorial error, if any, was therefore harmless.

III. DID THE TRIAL COURT ERR IN FAILING TO GIVE AN INSTRUCTION THAT SANDER’S PRIOR INCONSISTENT STATEMENT COULD NOT BE USED AS SUBSTANTIVE EVIDENCE?

¶ 23. Jackson asserts that the trial court erred in failing to give an instruction that Sanders’s prior inconsistent statement could not be used as substantive evidence. Jackson did not request such an instruction from the trial court. In Russell v. State, 607 So.2d 1107, 1117 (Miss.1992), the Mississippi Supreme Court held that failure to request a jury instruction renders the issue moot on appeal. Jackson relies on Moore v. State, 755 So.2d 1276 (Miss.Ct.App.2000), in which this Court reversed finding plain error in the lack of an instruction that was not requested at trial. In Moore, this Court found that without the inconsistent statements the evidence was severely diminished. Moore, 755 So.2d at 1280(¶ 13). It was noted that the evidence was “weak and alone may be insufficient to connect Moore to the crime spree.” Id. at (¶ 14). The Court therefore found that Moore was denied his fundamental right to a fair trial. Id. at (¶ 23).

¶ 24. Moore is a different situation than the case at bar. Jackson’s connection with the cocaine and its constructive sale was established through the testimony of the undercover agent. The State’s case was much stronger than the case in Moore. The trial judge instructed the jury regarding the credibility of witnesses and that it was its task to weigh the testimony and evidence in the case. An instruction such as this has been held to be sufficient to meet any requirement of an instruction in the instance of an inconsistent statement. Swann v. State, 806 So.2d 1111, 1117(¶ 23) (Miss.2002). Error, if any, was harmless. This issue is without merit.

¶ 25. THE JUDGMENT OF THE AM-ITE COUNTY CIRCUIT COURT OF CONVICTION OF SALE OF A SCHEDULE II CONTROLLED SUBSTANCE, COCAINE AND SENTENCE OF TWENTY YEARS IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS, FIFTEEN YEARS TO SERVE AND FIVE YEARS OF POST-RELEASE SUPERVISION AND FINE OF $5,000 IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLANT.

KING, C.J., BRIDGES AND SOUTHWICK, P.JJ., LEE, IRVING, MYERS, CHANDLER AND GRIFFIS, JJ., CONCUR.


source: Caselaw Access Project

author: IRVING, J.,

license: Public Domain

text:
    Willie Walter MOSES, Appellant v. STATE of Mississippi, Appellee.
    No. 2003-KA-00547-COA.
    Court of Appeals of Mississippi.
    Sept. 14, 2004.
    Rehearing Denied Nov. 2, 2004.

      Morris Sweatt, Columbia, attorney for appellant.
    Office of the Attorney General by Deirdre McCrory, attorneys for appellee.
   IRVING, J.,

for the Court.

¶ 1. Willie Walter Moses was convicted by a Marion County Circuit Court jury of five counts of statutory rape, one count of sexual battery, and three counts of fondling. Moses now appeals and alleges that the trial court erred (1) in not sustaining his motion to quash the indictment, (2) in allowing the State to amend the indictment, and (3) in denying his motion for a mistrial when the State elicited testimony of prior bad acts. He also contends that the verdict is contrary to the weight and sufficiency of the evidence.

¶ 2. We find no reversible error; therefore, we affirm Moses’s convictions and sentences for the several counts in the indictment.

FACTS

¶ 3. This is the second time this case has been before us. In Moses v. State, 795 So.2d 569 (Miss.Ct.App.2001) (Moses I), Moses was indicted on fifteen counts of raping Child A, along with two counts of sexual battery and five counts of fondling Child B. The indictment in Moses I charged that the alleged crimes in counts one through seventeen occurred between June 1994 and September 1997. Id. at 570 (¶¶ 4-5). No dates were alleged for counts eighteen through twenty-two. Id. at (117).

¶ 4. In Moses /, the trial judge granted a directed verdict in favor of Moses on three counts although there were no specific dates in the counts. The record reveals, however, that three specific, dated incidents were discussed by the trial judge as forming the basis for the counts being dismissed. However, in granting the directed verdict, the trial judge failed to properly correlate the factual incidents to an appropriate numerical count of the indictment. That could be done only by correlating the incidents from a temporal perspective with the numerical counts of the indictment, i.e., by making the first incident correspond with count one of the indictment and the successive incidents correspond seriatim with the numbered counts of the indictment. Rather than making the correlation, the trial judge arbitrarily designated those three counts as counts fourteen, fifteen, and twenty-two. Id. at 570(¶ 3). A proper correlation of the incidents temporally with the counts in the indictment would reveal that the trial judge actually granted a directed verdict as to counts one, six, and twenty instead of fourteen, fifteen and twenty-two as stated in the judgment of conviction.

¶ 5. On appeal, this Court reversed and rendered seven counts. Id. at 573(¶ 19). The trial judge’s failure to properly correlate the factual incidents temporally with the counts in the indictments resulted in this Court incorrectly identifying those counts as counts seven through thirteen when in fact they were counts nine thróugh fifteen. Although the counts were misidentified by number, it is clear from the record in Moses I, that we reversed and rendered all offenses which occurred after Child A had reached her fourteenth birthday. Id.

¶ 6. We also reversed and remanded the remaining counts, i.e., counts one through six and sixteen through twenty-one, due to a lack of specificity in the dates and facts of the alleged incidents. Id. at 572-73 (¶¶ 17-18). Because the incidents were not temporally correlated seriatim with the numbered counts of the indictment, the remaining counts were also misidentified. Had the correlation been done, the remaining counts would have been identified as two through five, seven and eight, sixteen through nineteen, and twenty-one and twenty-two.

¶ 7. On remand, Moses was re-indicted on eleven counts. Counts one through six charged him with statutory rape of Child A. Counts seven through eleven charged him with one count of sexual battery and four counts of fondling Child B. The indictment alleged specific and separate times for each offense set forth in the eleven counts. Before the trial commenced, the State moved to dismiss counts one and ten. The jury found Moses guilty of the remaining counts of the indictment.

¶ 8. At the time of the alleged incidents, Moses was married to Child B’s mother who was also the aunt of Child A. Moses, however, was not Child B’s father. Both Child A and Child B lived with BB and Moses. Child A testified that Moses began sexually abusing her in October 1994. She testified that she had just turned eleven years old. Child A stated that the abuse occurred twice that month, once when her mother and cousin were gone to the store, and again when her mother was at work. Child A further testified that the abuse happened again in September 1995, then in August 1996, and in January 1997 when she was thirteen years old.

¶ 9. Child A also testified that in June and July of 1998, she observed Moses touch her cousin, Child B, in her genital area while her mother was at work. Child A stated that when Moses became aware that she was standing there looking, he continued to move his hands in Child B’s shorts while he looked back at her (Child A). Child A claimed that she also saw Moses touch Child B on another occasion.

¶ 10. Child B next testified that Moses began sexually abusing her in June 1998 when she was thirteen years old. She stated that Moses asked her to massage him and then took her hands and put them in his shorts. Child B alleged that he then touched her on her vagina. She further testified that the abuse happened again approximately a week later, and that she told her mother that Moses had been molesting her. Child B alleged that the next night while her mother was at home asleep, Moses touched her again on her vaginal area, but he was interrupted when the telephone rang. Child B stated that after Moses finished talking on the phone, he left the house and she woke her mother up and told her that it had happened again. Child B stated that the following day, while her mother was at work, Moses rubbed something on her vaginal area.

¶ 11. Moses was arrested shortly thereafter, and BB consented to a search of their residence. Police found items that the victims alleged were used during their sexual encounters with Moses. ■ These items included a pornographic tape, condoms, and some lubricant. Additional facts will be related during our discussion of the issues.

ANALYSIS AND DISCUSSION OF THE ISSUES

(1) Motion to Quash the Indictment

¶ 12. Moses first argues that the trial court committed reversible error in not sustaining his motion to quash the indictment. He specifically contends that the charges in the new indictment were barred by the doctrine of double jeopardy because the same factual allegations in the new indictment had been disposed of in the previous indictment.

¶ 13. As already noted, in Moses I, the trial judge granted Moses a directed verdict on counts fourteen, fifteen and twenty-two, and we reversed and rendered Moses’s conviction on counts seven through thirteen. But, as pointed out in the factual portion of this opinion, the record indicates that the directed verdict targeted specific, dated incidents which correspond numerically to counts one, six and twenty. The counts which we reversed and rendered were identified as those counts comprising incidents which occurred after Child A had reached her fourteenth birthday. We found that Moses was entitled to a directed verdict on those counts because the indictment alleged that all offenses occurred prior to Child A’s fourteenth birthday and not after. Moses, 795 So.2d at 573(¶19). As already observed, those counts should have been identified as nine through fifteen instead of seven through thirteen.

¶ 14. Nevertheless, for purposes of double jeopardy consideration, we look to the facts undergirding the charges in the current indictment to determine whether any of the factual bases for these charges provided the factual bases for any of the charges in Moses I which the trial judge granted a directed verdict on and for any of the charges which we reversed and rendered. We find that — although no dates were specified for some offenses in the indictment in Moses I and that, as to other offenses, the dates specified overlap the dates specified for offenses in the indictment now before us — it is still possible to make a distinction between the factual bases for the various counts in the Moses I indictment and the factual bases for the counts of the current indictment since the dates and facts that supported the counts in the indictment in Moses I are set forth with specificity throughout the record.

¶ 15. Our review of the record in Moses I reveals that the trial judge granted a directed verdict on two incidents involving Child A and one incident involving Child B. The first incident involving Child A, upon which a directed verdict was granted, occurred in September 1994 while Child A was watching a movie entitled “Willow.” In that incident, Moses called the child in his bedroom, got down on the floor, and had the child massage his legs. When she did not do it to his satisfaction, he began massaging her to show her how he wanted it done. He then got on top of her and attempted to have sexual intercourse with her. The child cried, and he stopped his endeavor. The State conceded that it had not proven statutory rape. The trial judge agreed and did not allow the jury to consider this incident. The second incident, upon which a directed verdict was granted, occurred in August 1996. In that incident, Moses engaged in sexual intercourse with Child A in the hallway of his home for a brief period of time and attempted to have anal sex with her. She resisted his effort to accomplish anal sex. He then moved to the bedroom with her where he again engaged in sexual intercourse with the child. The State argued that Moses had committed two separate acts of sexual intercourse. The trial judge considered the incident one continuing incident and allowed only one charge of statutory rape to be considered by the jury.

¶ 16. The incident involving Child B, upon which a directed verdict was granted, occurred in June 1998. In that incident, Moses was massaging the child. He had been massaging her for a while before he stuck his finger in her vagina. The State argued that Moses had committed two offenses: sexual battery and fondling. The trial judge ruled that the battery charge, but not the fondling charge, could go to the jury.

¶ 17. We have thoroughly examined the record for the factual bases supporting the charges in the current indictment and find that they are totally different from the factual bases undergirding the charges in Moses I which were either disposed of by directed verdict granted by the trial judge or reversed and rendered by this Court. Consequently, we find that Moses’s argument that he has been placed twice in jeopardy for the same offense lacks merit. The trial judge did not err in refusing to quash the indictment on the basis of double jeopardy.

(2) Amendment of the Indictment

¶ 18. Prior to trial, Moses filed a motion to quash the indictment based on the absence of the words “against the peace and dignity of the State.” In response, the State moved to amend the indictment and argued that its failure to include the language was an amendable defect as expressed by the court in Brandau v. State, 662 So.2d 1051 (Miss.1995). The trial judge agreed, found that the amendment was one of form and not of substance, and allowed the State to amend the indictment to include the language. Moses now argues that the indictment was fatally flawed since it did not contain the requisite statutory language, and contends that the trial court erred in allowing the State to amend the indictment.

¶ 19. The question of whether an indictment is fatally defective is an issue of law and deserves a relatively broad standard of review. Hawthorne v. State, 751 So.2d 1090, 1092(¶ 8) (Miss.Ct.App.1999). Although Moses correctly asserts that the Mississippi Constitution requires that all indictments conclude with the words “against the peace and dignity of the State,” we note that our supreme court has held that the failure of an indictment to conclude with these words is a formal defect that is curable by amendment. Brandau, 662 So.2d at 1054. As a result, we find that the trial judge properly allowed the State to amend the indictment. Therefore, this issue is without merit.

(3) Motion for Mistrial

¶20. Moses next argues that the trial court erred in denying his motion for a mistrial when the State allegedly elicited testimony of other prior bad acts and disregarded the court’s ruling that the evidence would not be allowed. The State counters that any conceivable error in the court’s refusal to grant a mistrial would be harmless in light of the overwhelming evidence of Moses’s guilt.

¶ 21. The trial judge is in the best position to determine if an alleged objectionable remark has a prejudicial effect. Weeks v. State, 804 So.2d 980, 992(¶ 37) (Miss.2001). The judge is provided considerable discretion in determining whether the remark is so prejudicial that a mistrial should be declared. Id. However, if serious and irreparable damage has not occurred, then the trial judge should direct the jury to disregard the remark. Id. The failure of the court to grant a motion for mistrial will not be overturned on appeal unless the trial court abused its discretion. Bass v. State, 597 So.2d 182, 191 (Miss.1992).

¶ 22. Prior to trial, the State filed a notice of intent to introduce evidence of other sexual offenses committed by Moses against Child A and Child B. During a hearing on the motion to quash the indictment, the State asked for the judge’s ruling on whether it would be allowed to introduce the evidence of the other sexual offenses. The trial judge stated, “[W]ell, we’re not going to get into those. If it somehow flows into the testimony, then it might be that they would not — I would not declare a mistrial on that issue, but I want to try to avoid them if there’s any way we can. Just concentrate on just these particular ones that we have before us.” Shortly thereafter, during the prosecution’s direct examination of Child A, the following exchange occurred:

Q: Now, when Mr. Moses was having sexual intercourse with you, did it occur anywhere else other than at 618 Owens Street?
A: No, it did not.
Q: Did it occur only these times?
A: No, it did not.
Q: Did it occur more or less?
A: It occurred more times.
Q: All right. Thank you.

¶ 23. Moses moved for a mistrial. The judge overruled Moses’s motion for a mistrial, but asked Moses’s attorney “if he had anything that he wanted him [the judge] to say to the jury.” Defense counsel declined and stated that “[the defense didn’t] want the court to highlight too much.”

¶ 24. We find that the trial judge did not abuse his discretion in denying Moses’s request for a mistrial. Further, Moses’s attorney declined the judge’s attempt to cure any potential prejudice emanating from the remark. Consequently, this assignment of error is without merit.

(Ip) Weight and Sufficiency of the Evidence

¶ 25. Finally, Moses asserts that the verdict was against the weight and sufficiency of the evidence. He further asserts that the trial judge erred in denying his motion for a directed verdict at the end of the State's ease and in denying his peremptory instruction at the conclusion of the case. Although Moses indicates in the caption to his issue that the verdict was against both the overwhelming weight and sufficiency of the evidence, the argument which he makes in support of the issue goes primarily to the sufficiency and not the weight of the evidence. Nevertheless, we will consider the sufficiency and weight of the evidence as separate matters.

¶ 26. “The standard of review for a denial of a directed verdict and peremptory instruction are identical.” Hawthorne v. State, 835 So.2d 14, 21(¶ 31) (Miss.2003). A motion for a directed verdict and request for a peremptory instruction challenge the legal sufficiency of the evidence. McClain v. State, 625 So.2d 774, 778 (Miss.1993). On the issue of legal sufficiency, reversal can only occur when evidence of one or more of the elements of the charged offense is such that “reasonable and fair-minded jurors could only find the accused not guilty.” Hawthorne, 835 So.2d at 21 (¶ 31).

¶27. We find that the State offered ample evidence in support of Moses’s conviction. The victims testified in great detail that Moses engaged in various sexual acts with them. The evidence further showed that when Moses was arrested, police found certain items in his home that corroborated the victims’ allegations. Therefore, accepting the evidence in the light most favorable to the State, the jury was justified in finding Moses guilty.

¶ 28. As distinguished from a motion for a directed verdict or a JNOV, a motion for a new trial asks to vacate the judgment on the grounds related to the weight of the evidence, not sufficiency of the evidence. Smith v. State, 802 So.2d 82, 85-86(¶ 11) (Miss.2001). Our standard of review for claims that a conviction is against the overwhelming weight of the evidence or that the trial court erred in not granting a motion for a new trial has been stated as follows:

[This Court] must accept as true the evidence which supports the verdict and will reverse only when convinced that the circuit court has abused its discretion in failing to grant a new trial. A new trial will not be ordered unless the verdict is so contrary to the overwhelming weight of the evidence that to allow it to stand would sanction an unconscionable injustice.

Todd v. State, 806 So.2d 1086, 1090(¶ 11) (Miss.2001).

¶ 29. The record indicates that the facts and inferences strongly point toward Moses’s guilt. Considering the evidence presented by the State in support of Moses’s conviction and its substantial weight against Moses, we are not persuaded that the verdict is so contrary to the overwhelming weight of the evidence that allowing it to stand would sanction an unconscionable injustice. Consequently, we find the trial court did not abuse its discretion in denying Moses’s motion for a new trial.

¶ 30. THE JUDGMENT OF THE CIRCUIT COURT OF MARION COUNTY OF CONVICTION OF COUNTS TWO, THREE, FOUR, FIVE AND SIX: STATUTORY RAPE AND SENTENCE OF CONCURRENT LIFE SENTENCES ON EACH COUNT; COUNT SEVEN: SEXUAL BATTERY AND SENTENCE OF TWENTY YEARS WITH TEN YEARS SUSPENDED AND FIVE YEARS OF POST-RELEASE SUPERVISION, WITH THE SENTENCE FOR COUNT SEVEN RUNNING CONSECUTIVELY TO THE SENTENCES FOR COUNTS TWO, THREE, FOUR, FIVE, AND SIX; COUNTS EIGHT, NINE AND ELEVEN: FONDLING AND SENTENCE OF TEN YEARS WITH EIGHT YEARS SUSPENDED AND FIVE YEARS POST-RELEASE SUPERVISION ON EACH COUNT TO RUN CONCURRENTLY TO EACH OTHER BUT CONSECUTIVELY TO THE SENTENCE IN COUNT SEVEN, ALL IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO MARION COUNTY.

KING, C.J., BRIDGES AND LEE, P.JJ., MYERS, CHANDLER, GRIFFIS, AND BARNES, JJ., CONCUR.

      . The victims in Moses I were referred to as Child A and Child B. In order to maintain clarity, we continue this designation in this case.

      . Since what was designated as counts fourteen, fifteen, and twenty-two were not involved in the appeal in Moses 1, the dates of the alleged offenses comprising these counts were not mentioned in the Moses I opinion. However, we have examined the record in Moses I and find that the period of the alleged offenses comprising counts fourteen and fifteen was from June 1994 to September 1997.

      . The mother will be referred to as BB. Although BB is Child A’s aunt, Child A referred to BB as her mother. In discussing the facts, we refer to BB as Child A did.

      . Our examination does reveal that count one of the current indictment appears, from the time line given, to embrace one of the incidents upon which a directed verdict was granted in Moses I. However, the State voluntarily dismissed this count of the indictment, making moot any double jeopardy issue regarding this count. The State also dismissed count ten of the indictment. There is insufficient evidence in the record to determine whether this count correlates with any count in the Moses I indictment. However, count ten was a fondling count, and the dismissal of it left only three fondling counts. The Moses I indictment contained five fondling counts. The trial judge dismissed only one, and this Court, on appeal, did not reverse and render any of the fondling counts.


author: PER CURIAM.

text:
    JEFFERSON COUNTY v. William M. ACKER, Jr., and U.W. Clemon.
    1010843.
    Supreme Court of Alabama.
    Oct. 31, 2003.
    Rehearing Denied Jan. 23, 2004.
    Jeffrey M. Sewell, asst, county atty. for Jefferson County, Birmingham, for plaintiff.
    William M. Acker, Jr., pro se.
    U.W. Clemon, pro se.
    Amici curiae C. Lynwood Smith, Jr., United States District Judge, Huntsville; Inge P. Johnson, United States District Judge, Birmingham; and T. Michael Putnam, United States Magistrate Judge, Birmingham, in support of the defendants.
   PER CURIAM.

The plaintiff Jefferson County, Alabama, sued the defendants William M. Acker, Jr., and U.W. Clemon, United States district court judges, to collect from them an occupational tax consisting of one-half percent of their respective salaries, levied by the plaintiff county. The United States District Court for the Northern District of Alabama, Southern Division, where the case is pending, has certified the following question to this Court:

“Is exemption from payment of Jefferson County’s occupation privilege tax imposed pursuant to its Ordinance No. 1120 of 1987 a privilege or benefit of membership in the Alabama Bar Association to which defendants are entitled by virtue of their payment of 50% of the dues of active members of that association?”

We answer the question in the negative. The defendants are not exempt from the tax.

The state statutes and the county ordinance which form the basis of the plaintiffs claim to the tax and the defendants’ claim to the exemption constitute a major part of the “facts” of this case. Indeed, the sequence of the adoption of these measures is factually important as evidence of legislative intent.

In 1985, the Alabama Legislature enacted 1935 Ala. Act No. 194 (hereinafter sometimes called “the attorneys’ annual state license tax statute”) requiring “[e]ach attorney engaged in the practice of law to pay an annual license of Twenty-Five Dollars ($25.00) to the State, but no license shall be paid to the County.” This statute appeared as Title 51, § 460 in the Code of Alabama 1940 and the Code of Alabama as recompiled in 1958. This law now appears as § 40-12-49, Ala.Code 1975, in these words: “Each attorney engaged in the practice of law.shall pay an annual license tax to the state, but none to the county.” This law has not changed since its inception in any way material to this case.

In 1945, the Legislature enacted 1945 Ala. Act No. 409 (hereinafter sometimes called “the defendants’ bar association statute”), which provided, in pertinent part:

“Section 1: That all lawyers who are qualified to practice law in Alabama and who are not engaged in active practice because they are holding a state or federal office that precludes them from practicing law may become members of the Alabama Bar Association by payment direct to the Secretary of such Association an annual sum equal to the Association’s participation in the money collected by the State of Alabama from a lawyer as a privilege license tax to engage in the practice of law.
“Section 2: That upon the payment of said sum as prescribed in the preceding section, such person shall be entitled to all the privileges and benefits common to the other members of such Association.”

(Emphasis added.) This law now appears as § 34-3-17, Ala.Code 1975, in these words:

“All lawyers who are qualified to practice law in Alabama and who are not engaged in active practice because they are holding a state or federal office that precludes them from practicing law may become members of the Alabama Bar Association by paying directly to the secretary of such association an annual sum equal to 50 percent of the money collected by the State of Alabama from a lawyer as a privilege license tax to engage in the practice of law. Upon payment of said sum as prescribed in the preceding sentence, such persons shall be entitled to all the privileges and bene fits common to other members of such association.” (Emphasis added.)

This law has not changed since its inception in any way material to this case.

In 1951, the Alabama Legislature adopted 1951 Ala. Act No. 129, which provided, in pertinent part:

“Section 1. All lawyers who are qualified to practice law in Alabama and who are not engaged in active practice may become members of the Alabama State Bar Association by payment directly to the Secretary of such Association an annual sum of Fifteen Dollars ($15.00).
“Section 2. Upon the payment of said sum as prescribed in Section 1, such person shall be entitled to all the privileges and benefits common to the other members of such Association.” (Emphasis added.)

This law now appears as § 34-3-18, Ala. Code 1975, in these words:

“All lawyers who are qualified to practice law in Alabama and who are not engaged in active practice may become members of the Alabama Bar Association by paying directly to the secretary of such association an annual sum equal to 50 percent of the money collected by the State of Alabama from a lawyer as a privilege license tax to engage in the practice of law. Upon payment of said sum as prescribed in this section, such person shall be entitled to all the privileges and benefits common to the other members of such association.” (Emphasis added.)

This law has not changed since its inception in any way material to this case.

In 1967, the Legislature enacted 1967 Ala. Act No. 406 (hereinafter sometimes called “the county tax enabling act”), which authorizes

“any county of the State of Alabama having a population of 500,000 or more ... to levy a license or privilege tax upon any person for engaging in any business for which he is not required by law to pay any license or privilege tax to either the State of Alabama or the county by any of the following Article 1, Chapter 20, Title 51 [§§ 450 through 617]; Sections 176, 177, 178, 180, 182, 183, 184, 186, 429 and 826 in Title 51 of the Code of Alabama of 1940 as amended.” (Emphasis added.)

The reference to Article I, Chapter 20, Title 51 includes the already-quoted attorneys’ annual state license tax statute. Thus, the county tax enabling act excepts and thereby withholds authority to tax the practice of law.

In 1987, pursuant to the authority granted by the county tax enabling act, Jefferson County enacted Ordinance No. 1120, (sometimes hereinafter called “the plaintiffs county tax ordinance”), which imposed an “occupational license tax” in the amount of “one-half percent (1/2%) of the gross receipts” earned within Jefferson County by every person engaged in a “vocation, occupation, calling or profession.” The defendants do not claim that the definition of “vocation, occupation, calling or profession” does not include them, except insofar as the defendants indirectly claim the benefit of the following exception to the definition:

“(B) The words ‘vocation, occupation, calling and profession’ ... shall not mean or include domestic servants employed in private homes and shall not include businesses, professions or occupations for which license fees are required to be paid under any General License Code of the County or to the State of Alabama or the County by any of the following: Chapter 12, Article 2, Title 40 [§§ 40-12-40 through 40-12-180 ]; §§ 40-21-50, 40-21-52, 53, 54 and 55; 40-21-57, 58, 59, and 60; 40-16-6; and 27-4-9 of the Code of Ala.1975, as amended.” (Emphasis added.)

The reference to Chapter 12, Article 2, Title 40 includes the already-quoted attorneys’ annual state license tax statute. Thus, this ordinance excepts the practice of law from the tax.

The parties have stipulated a number of facts, including some of the legislative “facts” already stated in this opinion. Other stipulated facts pertinent to this particular certified question are:

“4. At all times since January 1, 1988, defendants have been employed by the United States of America as District Judges for the Northern District of Alabama pursuant to Article III of the Constitution of the United States.
“6. Defendants maintained their principal offices at the Hugo Black Federal Courthouse in the City of Birmingham, Jefferson County, Alabama.
“9. Defendants are not required by any state law to pay any privilege, license or occupational tax to the State of Alabama. Defendants, however, still pay their dues (one-half of the dues of a licensed practicing attorney) to the Alabama State Bar, which is an integrated bar, and, as such, is an arm or agency of the State of Alabama. Although defendants are not and cannot be licensed to practice law, they remain sustaining or auxiliary members of the bar as they still pay their dues.”

The defendant judges do not argue that they are exempted directly by the language in the county tax enabling act, 1967 Ala. Act No. 406, excepting and thereby withholding authority to tax the practice of law — that is, excepting and therefore withholding authority to tax any person who is “required by law to pay any license or privilege tax to ... the State of Alabama ... by” the attorneys’ annual state license tax statute imposing the privilege license tax on “[e]ach attorney engaged in the practice of law,” now § 40-12-49. Nor do the defendant judges argue that they are exempted directly by the language in the definition of “vocation, occupation, calling or profession” in the plaintiffs county tax ordinance excepting the practice of law— that is, excepting “professions ... for which license fees are required to be paid ... to the State of Alabama ... by” the attorneys’ annual state license tax statute, now § 40-12^19. The defendant judges candidly stipulate that they are not required to pay the State any privilege or license fee or tax pursuant to § 40-12-49 or its predecessors and that they are not allowed to practice law.

The defendant judges claim only that they are exempted by section 2 of the defendants’ bar association statute, now § 34-3-17, providing that, “[u]pon payment of said sum as prescribed in the preceding sentence, such persons shall be entitled to all the privileges and benefits common to other members of such Association” (emphasis added). The defendant judges claim only that § 34-3-17 entitles them to share in the practicing, state-license-buying attorneys’ exemption from the county tax pursuant to the above-quoted exceptions in the county tax enabling act and the plaintiffs county tax ordinance, because that exemption is a “privilege” or “benefit” “common to” those practicing, state-license-buying attorney members. In short, the defendant judges claim only that § Sj-S-17 provides them with an exemption from the county tax.

“This Court has held that the fundamental rule of statutory construction is to ascertain and give effect to the intent of the Legislature in enacting a statute. IMED Corp. v. Systems Engineering Assocs. Corp., 602 So.2d 344, 346 (Ala.1992). If possible, a court should gather the legislative intent from the language of the statute itself. Advertiser Co. v. Hobbie, 474 So.2d 93 (Ala.1985). If the statute is ambiguous or uncertain, the court may consider conditions that might arise under the provisions of the statute and examine results that would flow from giving the language in question one particular meaning rather than another. Clark v. Houston County Comm’n, 507 So.2d 902, 903-04 (Ala.1987). The legislative intent may be gleaned from the language used, the reason and necessity for the act, and the purpose sought to be obtained by its passage. Tuscaloosa County Comm’n v. Deputy Sheriffs’ Ass’n of Tuscaloosa County, 589 So.2d 687, 689 (Ala.1991)(citing Ex parte Holladay, 466 So.2d 956 (Ala.1985)).”

Norfolk Southern Ry. Co. v. Johnson, 740 So.2d 392, 396 (Ala.1999). “When competing reasonable constructions are advanced, a tax exemption should be construed in favor of the taxing authority, not the taxpayer.” Ex parte City of Tuscaloosa, 757 So.2d 1182, 1188 (1999). “[Exemptions from taxation are to be strictly construed against the person or party claiming the exemption and in favor of the right to tax.” Ex parte Fleming Foods of Alabama, Inc., 648 So.2d 577, 578 (Ala.1994). By logical extension of Ex parte City of Tuscaloosa and Ex parte Fleming Foods, if an ambiguity in a statute permits not only a reasonable construction that the statute constitutes or provides a tax exemption but also an equally reasonable construction that the statute does not constitute or provide any tax exemption at all, the latter construction, the one in favor of the taxing authority, is preferred.

At the risk of redundancy, but for the sake of clarity, we will restate the dispositive issue as distilled by the defendants’ argument to us. The issue is whether the defendants’ bar association statute, now embodied in § 34-3-17 without material change from the original, constitutes or provides a tax exemption from the plaintiffs county tax. Once again, § 34-3-17, originally adopted in 1945, decades before the adoption of the county tax enabling act and the plaintiffs county tax ordinance, reads:

“All lawyers who are qualified to practice law in Alabama and who are not engaged in active practice because they are holding a state or federal office that precludes them from practicing law may become members of the Alabama Bar Association by paying directly to the secretary of such association an annual sum equal to 50 percent of the money collected by the State of Alabama from a lawyer as a privilege license tax to engage in the practice of law. Upon payment of said sum as prescribed in the preceding sentence, such persons shall be entitled to all the privileges and benefits common to other members of such association.” (Emphasis added.)

There are several reasons why this statute does not constitute or provide a tax exemption for the defendants.

First, this statute, the defendants’ bar association statute, does not mention any county tax or any exemption from any tax. Thus the defendants must rely on the ambiguity of the expression “all the privileges and benefits common to other members,” to include within the meaning of the expression the exception to, or exemption from, the county tax that practicing, state-license-buying attorneys enjoy in common with each other. Yet the expression may more plausibly be interpreted to mean only the privileges and benefits of membership itself in the Alabama Bar Association. Indeed the very question certified to us asks whether exemption from the county tax is “a privilege or benefit of membership in the Alabama Bar Association” (emphasis added). It is not. The county tax enabling act and the plaintiffs county tax ordinance, by the express terms of these measures, spare practicing attorneys from the county tax not because of their membership in the bar association but because of the mandate of § 40-12-49 that the practicing attorneys “pay an annual license tax to the state, but none to the county.”

Second, the defendants’ bar association statute, now § 84-3-17, was originally adopted in 1945, more than two decades before the Legislature even authorized the plaintiff county to impose the county tax and over four decades before the plaintiff county imposed the tax by adopting the plaintiffs county tax ordinance. Thus the Legislature did not likely intend for the ambiguous language in the plaintiffs bar association statute to provide an exemption from the then nonexistent county tax. The text of the statute does not even hint at any legislative intent- to include any tax exemption at all.

Third, a construction of § 34-3-17 to exempt the defendant judges would necessarily require a construction of § 34-3-18 to exempt everyone else who has ever gained admission to the Alabama bar, who pays what the defendant judges pay to the bar association, but who engages in any “vocation, occupation, calling or profession” of literally any kind in Jefferson County; for § 34-3-18 extends to everybody in this category the very same opportunity that § 34-3-17 offers to those who “are holding a state or federal office that precludes them from practicing law.” Thus, § 34-3-18 would exempt lawyer-realtors, lawyer-bankers, lawyer-businessmen, lawyer-doctors, lawyer-tycoons, law professors, et cetera ad infinitum, even though, because they would not be practicing law, the attorneys’ annual state license tax statute would not require them to pay an annual license tax to the State. The likelihood is scant that the Legislature intended any such extravagant “privilege” or “benefit” in either § 34-3-17 or § 34-3-18.

Finally, if the expression “all the privileges and benefits common to other members of such association ” be an ambiguity in § 34-3-17 that warrants equally reasonable interpretations both that the statute does and that it does not constitute or provide an exemption for the defendant judges, the interpretation that the statute does not is preferred as the interpretation favorable to the taxing authority. See Ex parte City of Tuscaloosa and Ex parte Fleming Foods, supra. A fortiori, because the interpretation that the statute does not constitute or provide an exemption is more plausible than the contrary, this more plausible interpretation controls the issue and requires an answer to the certified question in favor of the plaintiff county taxing authority.

For all of the reasons stated, we answer the certified question in the negative. The defendant judges are not exempt from the tax levied by the plaintiff Jefferson County-

QUESTION ANSWERED.

HOUSTON, LYONS, BROWN, JOHNSTONE, HARWOOD, and STUART, JJ., concur.

WOODALL, J., recuses himself.


author: HARWOOD, Justice.

text:
    Amanda Linn CASHION, as executrix of the estate of Dot C. Smith, deceased v. Mary Dixon TORBERT et al.
    1020886.
    Supreme Court of Alabama.
    Nov. 7, 2003.
    Rehearing Denied Jan. 30, 2004.

      Amanda Linn Cashion, Memphis, Tennessee, for appellant.
    Mary Dixon Torbert, Montgomery, for appellee.
   HARWOOD, Justice.

As Amanda Lynn Cashion, the executrix of the estate of Dot C. Smith, deceased (“Cashion”), succinctly stated in her initial brief to this Court:

“This appeal is taken from the December 5, 2002 final Order entered by Circuit Judge William A. Shashy in the matter of Estate of Dot C. Smith, deceased, Montgomery County Circuit Court, Alabama, ... which (1) affirmed the March 5, 2002 Order on Final Settlement entered by Probate Judge Reese McKinney in Montgomery County Probate Court, Alabama, ..., and (2) granted Creditor Mary Dixon Torbert’s Motion to Strike the Estate’s Objections to certain claims against the Estate.”

We affirm in part and reverse in part.

Mary Dixon Torbert, an attorney in Montgomery, served during Dot Smith’s life as the court-appointed conservator of her estate, and, upon final settlement of that conservatorship, was awarded an attorney’s fee of $15,298.75.

We dealt with the appeal of a related case involving the same parties in Cashion v. Torbert, 881 So.2d 408 (Ala.2003). Our opinion in that case detailed the underlying “fairly convoluted procedural history” involved in the two cases.

After Ms. Smith died, Torbert filed a claim against her estate, of which Cashion was the successor executrix, for her attorney-fee award as conservator. Cashion subsequently determined that the estate was insolvent and filed a report of insolvency with Reese McKinney, Jr., Judge of Probate of Montgomery County. She listed the total assets of the estate as $18,511.46, the correctness of which is not challenged by any party to this appeal.

Section 43-2-371, Ala.Code 1975, provides:

“The debts against the estates of decedents are to be paid in the following order:
“(1) The funeral expenses.
“(2) The fees and charges of administration.
“(3) Expenses of the last sickness.
“(4) Taxes assessed on the estate of the decedent previous to his death.
“(5) Debts due to employees, as such, for services rendered the year of the death of the decedent.
“(6) The other debts of the decedent.”

Relating specifically to insolvent estates, § 48-2-700, Ala.Code 1975, provides:

“When the real and personal property of any decedent is insufficient for the payment of the debts, the proceeds arising from the sale thereof must be distributed as directed by section 43-2-371 in proportion to the amounts due to each class of creditors, in the order in such section specified.”

In her report of insolvency, Cashion stated that the following claims had been filed against the estate, indicating as to each claim the subsection in § 43-2-371 to which Cashion believed it should be assigned:

“Hamilton Funeral Home
§ 43-2-371(1) (claim) $ 1,010.85
“South Haven Health & Rehabilitation
§ 43-2-371(3) (claim) 11,426.58
“American Pharmaceutical Services
§ 43-2-371(3) (claim) 596.68
“Barbara Holliman and Ann Scheren (d/b/a Treasure Chest Antiques)
§ 43-2-371(6) (claim) 2,070.00
“Mary Dixon Torbert
§ 43-2-371(6) (claim) 15,298.75
“Thomas G. Green/E astside Realty
§ 43-2-371(6) (claim) 478.79
“Alabama Gas Company
§ 43-2-371(6) (claim) 120.07
“Alabama Gas Company
§ 43-2-371(6) (claim) 62.41
“Total Proofs of Claims Filed Against Estate
$31,064.13 ”

In addition to Cashion and Torbert, only Thomas G. Green/Eastside Realty (“Green”) has filed an appearance in this appeal, and then only to adopt Torbert’s brief.

Additionally, Cashion requested reimbursement of expenses incurred by her and her predecessor executrix in the amount of $1,800, and payment of “attorneys fees of approximately $4,000.00 to date.” Cashion asserted that the $5,800 represented by those two items was due to be paid as a debt under § 43-2-371(2), representing “fees and charges of administration.”

As we stated in Cashion v. Torbert, supra:

“Judge McKinney conducted a hearing on the insolvency report on January 9, 2002, at which, according to a later order, he ‘heard testimony and evidence on said report and [the supporting] statements’ and declared the estate insolvent. On January 15, 2002, Cashion served a ‘Brief in Support of Report of Insolvency’ (the filing date of the brief is not established by the record) in which, among other things, she made detailed assertions and referenced numerous attached exhibits, alleging that Torbert had exaggerated the net worth of the conservatorship estate in her final accounting to Judge McCooey and had misrepresented and omitted certain assets and liabilities.
“On January 18, 2002, Judge McKinney issued a ‘Decree of Insolvency,’ declaring the estate insolvent and ordering ‘that Amanda Linn Cashion, as executrix, appear and make a statement of her administration for final settlement of said estate on the 25th day of February, 2002, at 1:30 o’clock p.m.’ The hearing was held as scheduled on February 25, and Judge McKinney heard Cashion’s statement of her administration of the estate ‘and any objections to same.’
“On March 5, Judge McKinney issued his ‘Order on Final Settlement,’ in which he found, ‘upon consideration of all the evidence, testimony, and briefs,’ that the available assets of the estate amounted to $18,511.46, and that they should be disbursed to satisfy certain claims and expenses of the estate, including Tor-bert’s claim, reduced from the $15,298.75 awarded by Judge McCooey to $15,286.11.”

881 So.2d at 410.

In his March 5 order, Judge McKinney further declared that Torbert would “be responsible for paying outstanding debts that were incurred under the Conservator-ship of Dot C. Smith (Treasure [Chest] Antiques $2,070.00 and [Green] $478.79) from the funds she will receive from this Estate.... ” The order also directed payment of the bill of Hamilton Funeral Home, the expenses incurred by Cashion and her predecessor executrix in the amount of $1,800, and court costs in the amount of $414.50. Thus, the aggregate amount of the claims and court costs approved was $18,511.46, exactly matching the funds available for payment of claims and expenses. No mention was made of the claims of South Haven Health & Rehabilitation (“South Haven”), American Pharmaceutical Services, and Alabama Gas Company.

Although in the report of insolvency Cashion characterized the $4,000 component of her $5,800 claim as “attorney fees,” in her brief in support of the report of insolvency she clarified the $5,800 claim as one being made on behalf of herself and the predecessor executrix “under AIa.Code § 48-2-371(2), for $5,800 for fees and charges that accrued for the administration of the Estate.” She elaborated as follows:

“[T]he Executrix limited the § 43-2-371(2) claim for fees and charges of administration to the amount remaining after deducting the funeral home expenses [as a § 43-2-371(1) debt] and the nursing home and pharmacy expenses [as § 43-2-371(3) debts] from the Estate’s assets. This left $5,800, an amount which does not begin to cover the total expenses incurred and the time and effort the Executrix has devoted to this Estate.
“In addition to performing the routine tasks associated with examining, evaluating and determining the status of the Decedent’s affairs, in excess of 100 hours have been spent and many 700-mile round-trips and many more long-distance phone calls have been made from Rossville [Tennessee] and Memphis, Tennessee, to Montgomery and elsewhere in an effort to accomplish the following:
“find Decedent’s supposedly ‘Lost’ original Will,
“respond to the reports of multiple break-ins to Decedent’s home and the theft and damage done to Decedent’s personal property,
“report the burglaries to the police and the insurance company,
“obtain the Decedent’s records withheld by Ms. Torbert for four months after Decedent’s death,
“obtain a death certificate,
“consult with attorneys in Montgomery and elsewhere,
“meet with bank officials,
“ascertain which items had been taken, determine the value of items collected over a forty-year marriage, and negotiate with the insurance company,
“attempt to negotiate with the mortgage company and its attorneys, “clear out the house so that it could be turned over to the mortgage company; and,
“research Alabama law on probate matters, mortgages, conservatorships, etc.
“These efforts have extended beyond a year — for an estate which has only $18,511.46 in assets and $36,864.18 in debts.”

Subsequently, in her “Statement for Final Settlement,” Cashion again listed the $5,800 as “fees and charges then accrued for the administration of the Estate.”

On April 12, 2002, Cashion appealed Judge McKinney’s March 5 order to the Montgomery Circuit Court “pursuant to Ala.Code [1975,] §§ 12-22-2 and 12-22-51(5).” On that same date, Cashion filed with Judge McKinney a “Request for Findings of Fact and Conclusions of Law.” On April 29, 2002, Judge McKinney issued the following responsive summary:

“An Order on Final Settlement of the Insolvent Estate of Dot C. Smith, deceased, was signed on March 5, 2002. A Request for Findings of Fact and Conclusions of Law was filed on April 15, 2002[] by Amanda Linn Cashion, Successor Executrix of said estate. This Court based its findings on the following facts:
“1.) James W. Cameron, Esq., Attorney for Cathy Lou Tipler, the Executrix, filed his Petition for Discharge as Attorney on March 14, 2001 in which he stated that Mary-Frank Brown, Esq. had been employed as the attorney to represent the Estate. On April 10, 2001, a Notice of Resignation as Executrix was filed by Cathy Lou Tipler and a Motion to Substitute Executrix was filed by Amanda Linn Cashion. These pleadings and all future pleadings were filed with no attorney of record. Therefore, this Court could find no justification to award the attorney’s fees which were listed as an expense in the Report of Insolvency in the amount of $4,000.00 to be paid out of the Estate.
“2.) A Circuit Court Order, dated February 8, 2001, granted Mary Dixon Tor-bert, Esq., fees for administering the Estate of Dot C. Smith, Incapacitated, and that under Section 43-2-371(2) the Court is of the opinion that the costs associated with the Conservatorship and its administration are to be considered as ‘the fees and charges of administration,’ that have priority under.the law. “3.) The Petition for- Protective Placement which was filed in Circuit Court on July 12, 2000, by the Montgomery County Department of Human Resources, stated that Dot C. Smith required the care of a licensed nursing home facility to protect her health and safety due to the fact that there was no guardian or relative or other person able, willing, and suitable to provide care for the ward. Having reviewed the claim, with the attached invoice, filed by [South Haven], the Court is of the opinion that the bill was for room charges and the upkeep and comfort of the ward rather than a last sickness.”

Both Cashion and Torbert refer to, and rely on, the contents of Judge McKinney’s summary; neither raises any question about whether it is eligible for consideration by us, despite the fact that it was issued after the appeal was taken from the probate court to the circuit court.

On July 11, 2002, Cashion filed in the circuit court formal objections to the claims against the estate filed by Alabama Gas Company, Green, Treasure Chest, and Torbert. On August 9, Torbert moved to strike all of the objections, contending that § 43-2-747, Ala.Code 1975, required such objections to be presented to, and resolved by, the probate court and that, therefore, they could not be presented for the first time in the circuit court, because the circuit court’s review was not de novo but was limited to the record from the probate court. Torbert cited Sanders v. Brooks, 611 So.2d 336 (Ala.1992), and Smith v. Smith, 596 So.2d 1 (Ala.1992), in support of her argument. Cashion argued that, under § 43-2-747, Ala.Code 1975, she had six months after the estate was declared insolvent to file an objection, but that Judge McKinney had “prematurely” entered the final settlement order, leaving her with no choice but to file the objections in the circuit court.

Montgomery Circuit Judge William A. Shashy presided over the appeal in the circuit court and at some point conducted a conference telephone call among all the parties. No documentation of that telephone conference appears in the record, but Cashion states that the subject of the conference call was Torbert’s motion to strike, whereas Torbert characterizes the call as “a telephone status conference.” On December 5, 2002, Judge Shashy granted Torbert’s motion to strike Cash-ion’s objections and affirmed Judge McKinney’s order on final settlement.

On appeal to this Court, Cashion lists six allegations for review:

“I. Judge McKinney improperly considered creditors’ objections.
“II. Probate Judge McKinney improperly classified certain claims as to priority.
“HI. Probate Judge McKinney improperly assigned preference to certain creditors.
“TV. Probate Judge McKinney entered [the] Order on Final Settlement prematurely.
“V. Circuit Judge Shashy erred in striking [the] objections.
“VI. Circuit court appellate review was inadequate.”

We resolved issue IV in Cashion v. Torbert, supra. With respect to issue I, Cashion’s argument is that Judge McKinney improperly allowed Torbert, Treasure Chest, and Green to register objections at the January 9 hearing to the priority Cashion had assigned to their claims. In a memorandum brief Torbert filed with Judge McKinney in response to the report of insolvency, she stated that she was not denying that the estate was insolvent, rather she was only “objecting to and contesting the order of preference of certain debts against the Estate at issue.” In her brief in response, Cashion argued that by the time of the January 9 hearing, the creditors had waived their right to challenge the priority she had assigned to the various claims, because § 43-2-705, Ala. Code 1975, specifies that any creditor of a purportedly insolvent estate “may make an issue as to the correctness of [a report of insolvency] by denying in writing that the estate is insolvent,” and no creditor filed such a written denial.

Cashion contended that § 43-2-702(3), Ala.Code 1975, required her to include in the report of insolvency the character and the amount of each claim, which, she said, meant that she had to include “the characterization of each debt,” following the order of preference set out in § 43-2-371, Ala.Code 1975. Therefore, she asserted, her priority rankings were an integral part of the report, the correctness of which had to be denied in writing.

In her brief to this Court, Cashion argues differently, asserting that the creditors could not properly have presented challenges to the priorities of the claims at the January 9 hearing, because § 43-2-705 “provides that only one issue is to be determined at the hearing on the Report of Insolvency — the Estate’s insolvency. It does not permit the presentation of challenges as to the priority of the Estate’s creditors.” Cashion continues in her brief that challenges to the priorities of the claims constitute objections to the claims, and § 43-2-747 requires that such objections be made in writing only after § 43-2-705 objections to the correctness of a report of insolvency “have been resolved and the Estate has been declared insolvent.” (Cashion’s brief, p. 17.)

Thus, Cashion abandons on appeal the argument she made to Judge McKinney, relying instead on an entirely different argument. This Court will not consider a legal argument that was never presented to the trial court but was presented for the first time to this Court, particularly where an entirely different legal argument was made to the trial court on the issue. Yellow Dog Dev., LLC v. Bibb County, 871 So.2d 39 (Ala.2003); Rampey v. Novartis Consumer Health, Inc., 867 So.2d 1079 (Ala.2003); and Byrd v. Lamar, 846 So.2d 334 (Ala.2002).

Moreover, in advance of Judge McKinney’s declaring the estate insolvent, Tor-bert filed a brief, as she had been directed to do by Judge McKinney’s January 18 order, and detailed in that brief her objections to Cashion’s classification of her claim and the claim of Hamilton Funeral Home. Thus, by the time Judge McKinney issued his declaration of insolvency, Tor-bert had submitted her objections in writing. In addition to declaring the estate insolvent on January 18, Judge McKinney ordered Cashion to appear at a hearing on February 25, 2002, to “make a statement of her administration for final settlement of said estate.” In the statement for final settlement she filed after the hearing, Cashion reiterated the priority rankings of the claims and proposed that the claims of Hamilton Funeral Home, South Haven, and American Pharmaceutical Services, and the fees and charges accrued for the administration of the estate in the amount of $5,800 be paid. She pointed out that payment of those items “would exhaust the assets of the Estate and leave nothing to be paid to the remaining four creditors,” each of whom should be classified as § 43-2-371(6) “other debts of the decedent.” Thus, the issue of the priorities of the claims was squarely before Judge McKinney. Lastly, because Judge McKinney’s order on final settlement required Cashion to pay Treasure Chest and Green claims out of the share allocated to her, any question of their preference status is moot.

In connection with issue II, Cashion argues that Judge McKinney should have allowed her not only expenses but also the entire amount of her claim for compensation. She acknowledges that because of a math error and her failure to take into account the $415 court costs, the $5,800 claim is due to be reduced to $5,062. She argues that the claims of Torbert, Treasure Chest, and Green should not have been treated as fees and charges of administration of the probate estate. Finally, she argues that Judge McKinney erred in not according the claims of South Haven and American Pharmaceutical Services status under § 43-2-371(3) as “expenses of the last illness.”

Before addressing the merits of those arguments, we note that the record contains no transcript for either the January 9, 2002, or the February 25, 2002, hearings conducted by Judge McKinney. In her brief, Torbert asserts: ■

“Further, the Record on Appeal here does not include the transcripts of the Probate Court hearings. In this situation, appellate courts • are required to assume that the probate court’s ore ten-us findings were supported by the evidence it had before it. Patterson v. Patterson, 765 So.2d 8 (Ala.Civ.App.1999) (emphasis added).”

Cashion argues in her reply brief that “Torbert could have requested the transcripts,” and that Torbert’s failure to do so was probably an intentional decision based on her realization that “[h]ad the transcript been included,” Torbert would not be able to argue that Judge McKinney’s order on final settlement was supported by the evidence. We noted in Cashion v. Torbert, 881 So.2d at 416, that in her reply brief on that appeal, “Cashion chide[d] Torbert for failing to point to any portion of the probate court hearing transcript” to support her contention that a particular issue had in fact been raised before the probate court. Cashion now advises this Court that she herself “elected not to request the transcripts because: (1) the hearings were not evidentiary in nature; (2) Probate Judge McKinney made no findings of facts; and (3) the issues on appeal involve questions of law.” (Cash-ion’s reply brief, p. 6 n. 12.) Cashion’s contention that the hearings before Judge McKinney were not evidentiary in nature is contradicted by his statement in the declaration of insolvency that “the Court heard testimony and evidence,” and his statement in the order on final settlement that he had considered “all the evidence, testimony, and briefs.” Torbert cites Patterson v. Patterson, 765 So.2d 8 (Ala.Civ.App.1999), which states:

“The probate court made findings of fact as to each of the issues that were later presented on appeal to the circuit court and as to each of the issues presented on appeal to this court. The record on appeal does not include the transcript of the probate court’s hearing. We must assume that the probate court’s findings are supported by the evidence it had before it.”

765 So.2d at 11.

In Lockhart v. Robbins, 386 So.2d 424, 425 (Ala.1980), this Court reaffirmed the “well-established” principle that it “will not disturb factual findings and conclusions of the trial court when it affirmatively appears that there was evidence before the trial court which is not in the record on appeal.”

Judge McKinney’s April 29, 2002, “summary” specified that his reason for disallowing the $4,000 portion of Cashion’s $5,800 claim was that no attorney of record had appeared for the estate after attorney James W. Cameron had been allowed to withdraw, and Cashion had filed all pleadings “with no attorney of record.” Judge McKinney concluded, therefore, that there was “no justification” for ordering attorney fees to be paid out of the estate. As we explained earlier, despite Cashion’s initial statement in the report of insolvency that she was requesting payment of “attorney’s fees of approximately $4,000.00 to date,” she thereafter clarified and explained in her brief in support of that report that she had actually limited her “claim for fees and charges of administration to the amount remaining after deducting the funeral home expenses and the nursing home and pharmacy expenses” and that the resulting $5,800 claim represented “an amount which does not begin to cover the total expenses incurred in the time and effort the executrix has devoted to this Estate.” She explained that, in addition to performing the routine tasks associated with the administration of the estate, she had spent in excess of 100 hours, and had made many 700-mile-round-trips from Tennessee to Montgomery to perform the services she enumerated. Only the last of those services, “researched Alabama law on probate matters, mortgages, conservatorships, etc.,” would seemingly implicate the need for legal skills. Even considering only the additional 100 hours referenced, the compensation claimed of $4,000 would represent an hourly charge of only $40, well below the standard hourly fee for an attorney.

Moreover, it is undisputed that Cashion is an attorney duly licensed to practice in the State of Tennessee and that this Court has admitted her pro hac vice in this appeal. In Mills v. Neville, 443 So.2d 935, 937 (Ala.1983), the Court declared that the fact that an executor-attorney “employs himself’ does not raise a conflict of interest and that where an executor appointed by a will is also an attorney, there is no reason why that individual “shall not be allowed a reasonable compensation for his services” rendered the estate in his capacity as attorney, so long as the services had been necessarily and bona fide rendered for the benefit of the estate. The Mills Court noted that in Clark v. Knox, 70 Ala. 607, 617 (1881), the Court had declared that “ ‘[wjhen the executor ... is an attorney or solicitor, and in either capacity renders professional services, necessary in litigation for the benefit, or demanded by the necessities of the estate, he is entitled to compensation for such services.... ’ ” Further, the Court noted the holding of Alexander v. Bates, 127 Ala. 328, 28 So. 415 (1900), that “[e]ven where legatees have themselves been represented by counsel, an executor also acting as attorney for the estate, and thus incidentally acting for the beneficiaries, nevertheless has been allowed to recover for his own services as an attorney.” 443 So.2d at 938.

We find nowhere in the record any suggestion that anyone objected to the compensation element of Cashion’s request for payment. Torbert raised before Judge McKinney only the issues whether Tor-bert’s claim should be accorded the preferred status of fees and charges of administration; whether, alternatively, Torbert’s claim should be classified as expenses of the last illness; and whether the claim of South Haven should be placed among the “other debts of the decedent.” Before this Court, Torbert argues concerning Cash-ion’s demand for compensation as executrix only that “Judge McKinney did not award the attorney’s fees because he noted that a previous attorney for the Estate had been discharged long before and that no subsequent pleadings had been filed by an attorney of record,” thereby eliminating any justification for an award of attorney fees. She provides no citations to caselaw or to statutory authority.

Section 43-2-848 provides, in pertinent part, as follows:

“(a) A personal representative is entitled to reasonable compensation for services as may appear to the court to be fair considering such factors that may include, but are not limited to, the novelty and difficulty of the administrative process, the skill requisite to perform the service, the likelihood that the acceptance of the particular employment will preclude other employment, the fee customarily charged in the locality for similar services, the amount involved and the results obtained, the requirements imposed by the circumstances and condition of the estate, the nature and length of the professional relationship with the decedent, the experience, reputation, diligence, and ability of the person performing the services, the liability, financial or otherwise, of the personal representative, or the risk and responsibility involved, which shall not exceed two and one-half percent of the value of all property received and under the possession and control of the personal representative and two and one-half percent of all disbursements.
“(b) In addition the court may allow a reasonable compensation for extraordinary services performed for the estate.”

A comparison of the factors thus prescribed by the Legislature for determining “reasonable compensation for services” to be awarded a personal representative of an estate with the factors this Court prescribed in Peebles v. Miley, 439 So.2d 137 (Ala.1983) (as reaffirmed on numerous occasions, e.g., Lanier v. Moore-Handley, Inc., 575 So.2d 83 (Ala.1991)), for determining the reasonableness of attorney fees generally, reveals that the criteria are essentially the same.

The probate court erred in disallowing entirely Cashion’s claim for compensation for the services she rendered to the estate. Nonetheless, the last clause of § 43-2-848(a) limits that compensation to “two and one-half percent of the value of all property received and under the possession and control of the personal representative and two and one-half percent of all disbursements.” It is undisputed that the total of all of the property of the estate received by Cashion was $18,511.46; accordingly, that figure also represents the maximum amount ■ of disbursements she can make. Two and one-half percent of $18,511.46 is $462.79 and, when “doubled” to account for both property received and disbursements, provides a maximum allowable amount of compensation of $925.58. As mentioned, no objection was ever raised by Torbert or the other claimants concerning the reasonableness, or validity otherwise, of Cashion’s claim for compensation. Judge McKinney explained that he rejected Cashion’s claim simply because he deemed it inappropriate to award attorney fees where there had been no attorney of record during Cashion’s tenure as executrix.

Although Cashion and Torbert refer in their briefs to certain matters that were supposedly raised during the hearings before Judge McKinney, neither suggests that there ever arose an issue concerning the validity or reasonableness of the compensation sought by Cashion. Therefore, we cannot presume the sufficiency of missing evidence and speculate that Judge McKinney heard some testimony relating to the nature or reasonableness of Cash-ion’s request for compensation. That presumption will have a field of operation for other issues discussed in this opinion, but it has no application with respect to this issue.

Cashion objects to the classification of Torbert’s conservatorship-fee award as “fees and charges of administration,” stating that, although Cashion can find no Alabama caselaw on point, the conserva-torship estate was distinct from the decedent’s estate and that Torbert “presented no evidence that [her] services were reasonably necessary for the benefit of [the probate] Estate.” She argues that a review of the application for fees Torbert filed with the Montgomery circuit judge overseeing the conservatorship estate reveals that of the 95 separately itemized charges listed in the application, 57 could not relate to the probate estate, although some of the 38 other items might. However, that application is not a part of the record on this appeal. Cashion attempts to present it by attaching a copy of it as an exhibit to her brief. This Court, however, cannot consider asserted facts that are nowhere to be found in the record; therefore, we reject Cashion’s argument concerning the presence of, or lack of, evi-dentiary support for Judge McKinney’s determination that the fee award for Tor-bert’s services as conservator qualified for consideration as fees and charges of administering the probate estate. Alfa Mut. Gen. Ins. Co. v. Oglesby, 711 So.2d 938 (Ala.1997); Brown v. Kingsherry Mortg. Co., 349 So.2d 564 (Ala.1977).

Under the combined effect of § 26-5-13 and -16, and § 43-2-848, Torbert was entitled to be paid from the conservatorship estate for her expenses and reasonable compensation for her services. She explained to Judge McKinney in her memorandum ' brief that she could have been paid her fees and costs out of the conser-vatorship estate at the time of Ms. Smith’s death, thereafter transferring to the initial executrix only the balance remaining, but there were no funds then available because the assets “were tied up in the marital residence and in the claim for loss of personal property with [the insurer of the residence].” Torbert further advised Judge McKinney that as soon as she discovered that letters testamentary had been issued on Ms. Smith’s estate, “she filed her Proof of Claim for her fees and costs of administration.”

As noted, Cashion states that she can find no Alabama caselaw on point and she does not cite any foreign authority in support of her argument, except a decision by an intermediate Illinois appellate court, which held only that before a claim could be classified as “an expense of administration,” it had to be shown that the charge was “reasonably necessary for the preservation and benefit of the estate.” In re Estate of Desisles, 59 Ill.App.2d 194, 201, 208 N.E.2d 122, 125 (1965). As earlier discussed, Cashion argues that there was no evidence indicating that Torbert’s services were reasonably necessary for the benefit of the probate estate and that an analysis of her application for attorney fees, which we must ignore, shows that a majority of the charges did not relate to the probate estate. Because Judge McKinney has expressly stated that, after considering “all the evidence, testimony, and briefs” presented at the February 25 hearing, he concluded that Cashion’s claim qualified as one for “the fees and charges of administration”; because in the absence of a transcript of that proceeding, we will presume that Judge McKinney had before him evidence sufficient to sustain that finding; and because of the specific focus of Cashion’s argument, we find no reversible error with respect to Judge McKinney’s classification of Torbert’s claim.

Cashion argues that Judge McKinney erred in concluding that the $11,426.58 claim of South Haven “was for room charges and the upkeep and comfort of the ward rather than a last sickness.” She acknowledges that she can find no Alabama case on point, and she relies on several indirectly analogous cases from other jurisdictions. None of those cases, however, directly addresses this issue or is otherwise persuasive as to it. Because Torbert expressly asserted in her memorandum brief submitted to Judge McKinney that South Haven’s claim was in the nature of “room and board,” this issue is eligible for application of the presumption that sufficient evidence was submitted to warrant Judge McKinney’s holding. Although Cashion seeks to bring before us a December 28, 2000, bill from South Haven, which begins with an unexplained “balance of $15,901.42” and covers charges for November and December of that year, she does so only by way of an exhibit attached to her brief. -Not being part of the record, that billing statement is ineligible for our consideration; even if it were, there is no explanation for the “balance forward” amount or the “room charges” entries that make up the bulk .of the itemized charges. Cashion argues that South Haven’s charges should be. considered those of a “last sickness” because the petition for protective placement filed by the Montgomery County Department of Human Resources, which resulted in Torbert’s appointment as conservator, asserted that Ms. Smith was in need of 24-hour care, that she was completely incapable of attending to her medical needs, and that there was a plan to place her in a licensed nursing home facility. Those statements do not, however, exclusively establish that the services subsequently rendered by South Haven were related to Ms. Smith’s last sickness and are not otherwise sufficient to overcome Judge McKinney’s finding to the contrary, expressly stated by him to have been based upon evidence and testimony.

Issue III presented by Cashion on appeal, challenging the “preferential treatment” accorded the claims of Treasure Chest and Green is really a nonissue. We have upheld, subject to adjustment as hereinafter noted, the treatment given Torbert’s claim, and it is only out of the award to Torbert, and not out of the probate estate per se, that Treasure Chest and Green are to be paid.

Given our dispositions as to the claims of Torbert, Treasure Chest, and Green, Cashion’s issue V, concerning the striking of her objections to those claims in the circuit court, is moot. Likewise, those dispositions and our disposition of the issue of Cashion’s claim for compensation render issue VI moot.

No one has argued that the claim presented by Hamilton Funeral Home, in the amount of $1,010.85 is not due to be paid as a § 43-2-371(1) claim. Likewise no one disputes that the $414.50 court costs should be paid on a preference basis. Tor-bert’s claim, in the amount of $15,286.11 and Cashion’s claim, in the amount of $2,725.58 ($1,800 expenses plus $925.58 compensation) are due recognition as claims for fees and charges of administration under § 43-2-371(2) — fees and charges of administration of the probate estate. Those claims, prior to necessary adjustment, total $18,011.69. However, after subtraction of the claim of Hamilton Funeral Home and the court costs, there remains of the $18,511.46 originally available for payment of claims, only $17,086.11. Section 43-2-700, Ala.Code 1975, requires that the Torbert and Cash-ion claims, be paid “in proportion to the amounts due to each class of creditors, in the order in [§ 43-2-371] specified.” Because the money available for payment for Torbert’s and Cashion’s claims can satisfy only 94.86 percent of the total of those claims, each claim must be reduced 5.14 percent. Accordingly, Torbert must be paid 94.86 percent of her claim, or the amount of $14,500.59, and Cashion must be paid 94.86 percent of her claim, or the amount of $2,585.52. Because Torbert has filed no cross-appeal in this case, being apparently satisfied with the responsibility imposed upon her by Judge McKinney of paying the claims of Treasure Chest and Green out of her claim, we need not separately address those two claims. As to the claims of American Pharmaceutical Services and Alabama Gas Company, which Judge McKinney took no note of in his order on final settlement, thereby rejecting them, they would clearly be § 43-2-371(6) claims and there will be no funds remaining for payment of any claims made pursuant to § 43-2-371(6).

Accordingly, we hereby affirm the circuit court’s judgment in part, and reverse it in part, and we remand the cause for the Montgomery Circuit Court to reverse the probate court’s judgment and remand the cause to the Montgomery Probate Court for the entry of an order consistent with this opinion.

AFFIRMED IN PART; REVERSED IN PART; AND REMANDED.

HOUSTON, LYONS, BROWN, JOHNSTONE, WOODALL, and STUART, JJ., concur.

SEE, J., concurs in the result.

      . The record clearly reflects that this request was filed on April 12, 2002.