author: PITTMAN, Judge.

text:
    Mitchell Wade BAGGETT v. Katherine Mays BAGGETT.
    2011186.
    Court of Civil Appeals of Alabama.
    Jan. 31, 2003.

      R. Wyatt Howell of Green, Howell & Thompson, Hamilton, for appellant.
    Jonathan B. Lowe of Lowe, Mobley & Lowe, Haleyville, for appellee.
   PITTMAN, Judge.

Mitchell Wade Baggett (“the husband”) appeals from a judgment divorcing him from Katherine Mays Baggett (“the wife”). He alleges that the trial court erred with respect to the division of the marital property.

On February 25, 2002, the wife filed a complaint requesting a divorce from the husband. She asserted that the parties had been married since 1981, and she asked the court to award her custody of the parties’ two minor children, child support, alimony, and all the assets of the marriage. The trial court issued a temporary order awarding the wife the use of the marital home, temporary custody of the minor children, and child support in the amount of $136 per week until a final hearing could be held. The husband filed his answer to the wife’s complaint after the temporary order was issued.

The trial court conducted a hearing on March 13, 2002; the parties consented at that time to dissolution of the marriage subject to all issues regarding the children and the marital estate being determined at a future hearing. The trial court entered an order on March 25, 2002, granting the parties joint custody of the children, with the mother having primary physical custody; the trial court also ordered an appraisal of the marital residence and set the remaining issues for a later hearing.

During that subsequent ore tenus hearing, the trial court received testimony and evidence offered by the husband and the wife. The evidence regarding the value of the marital home was as follows. The home was purchased in 1986 at a cost of $59,000, financed with a mortgage loan extended by Phoenix Federal. When the mortgage loan was refinanced in 1993 or 1994, the appraised value of the home was $64,000. The court-ordered appraisal stated that the fair-market value of the home was $78,000. Evidence also indicated that the home had an assessed value of $54,035 for ad valorem tax purposes. The remaining indebtedness on the mortgage loan was $27,455 at the time of the hearing.

Beginning in 1994 a gradual disparity in the parties’ salaries began to occur. Before 1994, the parties each earned between $15,000 and $19,000 annually. From 1994 to 1997, the wife’s annual wages from her employment as a service manager for a mobile-home manufacturer increased to $70,000. During the same period, the husband’s annual wages from his employment as a store manager grew only to $27,000. At the time of trial, the husband was an assistant manager of a Piggly Wiggly grocery store, earning the gross salary of $1,947.83 per month with $40 per month withheld for dental insurance. According to the tax return filed by the couple in 2001, the wife earned approximately $72,000 during that year and the husband earned approximately $23,500.

In 1997, the wife was diagnosed with breast cancer. Although the wife continued working while receiving medical treatments, the husband testified that he removed much of his 401(k) retirement savings to make house payments and to pay bills. In 1999, the parties decided to remodel the marital home. The renovations were performed between 1999 and 2001; the wife presented checks to the trial court showing payments totaling $10,030 toward the cost of those renovations. The husband produced checks totaling $1,275 toward the costs of remodeling; he testified that he had performed much of the actual labor.

The husband testified that he and the wife had stopped having sexual relations sometime in 1999; the wife stated that her new job caused her a lot of stress, and she agreed with the husband that they had not had sexual relations in three years. The husband stated that he had been having an affair with a former coworker since January 2001. He stated that he continued to live in the marital home for about one year after his wife learned of the affair and asked him to leave. The husband also stated that the parties had previously separated in 1993 when the wife allegedly had an affair with a coworker; she denied having had an affair.

The wife testified that she had personally made the house payments and paid the majority of the family’s bills beginning in January 2000 and continuing until the date of trial. The wife produced canceled checks indicating that she had made the monthly payments on the parties’ mortgage loan from April 2000 through May 2002, paying a total of nearly $16,000 during that period. The trial court admitted other checks from the wife into evidence that indicated she had paid electric, telephone, gasoline, and miscellaneous store bills for the parties during the same period.

The husband asked to be awarded half of the equity in the marital home. The wife stated that the husband should receive only 10% of the equity in the home. The husband produced a list of personal property he wanted from the marital estate. The wife stated that she wanted all the furniture in the house, including the two pieces the husband had requested — a bedroom suite and the dining room suite. The husband also asked for a 1990 Ford truck; he testified that it was subject to no indebtedness and that only he had made payments to acquire it. The husband stated that the wife had made payments for one year on a new Mitsubishi Montero sport utility vehicle and that he had begun making payments on that vehicle in spring 2001.

The trial court entered a final judgment on June 21, 2002; that judgment awarded the wife the marital home and all furnishings and appliances within the home, except for 13 specific items of personal property that were awarded to the husband. The parties’ vehicles were not mentioned. The husband filed a motion for a new trial, which the trial court denied on August 18, 2002. The husband appeals, asserting that the property division is inequitable in that it favors the wife, especially as to the marital home.

The well-established standard of review is that a divorce judgment based on ore tenus evidence is presumed correct. See Robinson v. Robinson, 795 So.2d 729 (Ala.Civ.App.2001). Such a judgment will be reversed only where it is unsupported by the evidence so as to be plainly and palpably wrong. Id. at 733. On appeal the division of property and the award of alimony are interrelated, and the entire judgment must be considered in determining whether the trial court abused its discretion as to either issue. See O’Neal v. O’Neal, 678 So.2d 161 (Ala.Civ.App.1996). A property division does not have to be equal in order to be equitable based on the particular facts of each case; a determination of what is equitable rests within the sound discretion of the trial court. See Golden v. Golden, 681 So.2d 605 (Ala.Civ.App.1996).

When dividing marital property and determining a party’s need for alimony, a trial court should consider several factors, including “ ‘the length of the marriage, the age and health of the parties, the future employment prospects of the parties, the source, value, and type of property owned, and the standard of living to which the parties have become accustomed during the marriage.’ ” Ex parte Elliott, 782 So.2d 308 (Ala.2000) (quoting Nowell v. Nowell, 474 So.2d 1128, 1129 (Ala.Civ.App.1985)) (footnote omitted). In addition, the trial court may also consider the conduct of the parties with regard to the breakdown of the marriage, even where the parties are divorced on the basis of incompatibility, or where, as here, the trial court failed to specify the grounds upon which it based its divorce judgment. Ex parte Drummond, 785 So.2d 358 (Ala.2000); Myrick v. Myrick, 714 So.2d 311 (Ala.Civ.App.1998). It is well-settled that where a trial court does not make specific factual findings, the appellate court must assume that the trial court made those findings necessary to support its judgment, unless such findings would be clearly erroneous. Ex parte Fann, 810 So.2d 631 (Ala.2001); Ex parte Bryowsky, 676 So.2d 1322 (Ala.1996).

In this case, the property division clearly favors the wife. The trial court’s judgment does not indicate its reasons for awarding the husband so little from the marital estate. We note that fault in causing the breakdown of the marriage is one factor the trial court may consider in fashioning its property division and alimony award. See Ex parte Drummond, supra. However, the trial court made no finding of fault regarding either party’s conduct contributing to the breakdown of the marriage. Furthermore, even if the recent monthly mortgage loan payments and the bulk of the recent renovation costs were actually paid by the wife, those facts do not justify a failure to award the husband a share of his contributions to the marital assets acquired during 21 years of marriage. The marital residence was purchased jointly in 1986 and was “used regularly for the common benefit of the parties during their marriage.” See § 30-2-51(a), Ala.Code 1975.

We would not need to scrutinize the property division so closely if the trial court had awarded the husband more of the other marital assets or even alimony to compensate him for contributing to the marital estate. The husband references this court’s decision in Courtright v. Courtright, 757 So.2d 453 (Ala.Civ.App.2000), as authority supporting his position that the trial court abused its discretion by failing to award him a share of the equity in the marital residence. In that case, the parties had been married for 30 years and the wife’s salary was only half of the husband’s salary. The trial court awarded over 80% of the assets to the husband, while evenly dividing the marital debts between the two parties. In Courtright, we concluded that based on the length of the marriage and the disparity in the parties’ incomes, the property division was inequitable.

Although “[a] court has no fixed standard to follow in awarding alimony or in dividing marital property,” Ex parte Elliott, 782 So.2d at 311, in this case, the husband’s annual salary is barely one-third of the wife’s annual salary. Both the husband and the wife work full-time to support themselves and their two children. While ore tenus evidence indicated that the wife had been making the mortgage payments for at least 18 months preceding the divorce, this fact is apparently more a reflection of the wife’s increasing salary; it does not negate the need to divide equitably the marital residence’s equity between the parties.

Although we are mindful of our Supreme Court’s admonition that an appellate court should not substitute its judgment of the facts for that of the trial court, Ex parte Smith, 673 So.2d 420, 422 (Ala.1995), when we view the trial court’s judgment in light of the factors outlined in Ex parte Elliott, supra, we conclude that the trial court abused its discretion in determining that the wife should receive all of the equity in the marital home. We reverse the trial court’s judgment and remand the cause to the trial court for the entry of a judgment equitably dividing the marital property, including the equity in the marital residence. The wife’s request for an attorney fee on appeal is denied.

REVERSED AND REMANDED.

YATES, P.J., and CRAWLEY and THOMPSON, JJ., concur.

MURDOCK, J., dissents.


source: Caselaw Access Project

author: MURDOCK, Judge. CRAWLEY, Judge,

license: Public Domain

text:
    Louis HERTZBERG v. Bill GAINEY and Janice Gainey.
    2001159.
    Court of Civil Appeals of Alabama.
    Feb. 14, 2003.

      D. Bruce McLean, Enterprise, for appellant.
    Joe C. Cassady, Jr., of Cassady, Fuller & Marsh, L.L.P., Enterprise, for appel-lees.
   MURDOCK, Judge.

Louis P. Hertzberg (“the father”) appeals from a judgment of the Coffee Circuit Court ordering him to pay, among other things, postminority educational support on behalf of one of his two daughters.

The record indicates that Bill Gainey and Janice Gainey (“the maternal grandparents”) were awarded custody of their two granddaughters in 1995. The father was ordered at that time to pay child support in the total amount of $435 per month for both daughters, as well as $139 per month for medical and dental insurance for both daughters, and one-half of the daughters’ medical and dental expenses not covered by insurance. In October 2000, the grandparents filed a petition requesting that the father’s child-support obligation be modified so as to require him to pay postminority educational support for his older daughter.

On May 2, 2001, after a hearing in which the trial court received evidence ore tenus, the court entered a judgment ordering the father to pay postminority support, totaling 75 percent of his older daughter’s college education costs. The court also ordered the father to pay $431 per month in child support for the younger daughter, who had not yet reached the age of majority. The trial court’s order stated, in pertinent part:

“As each semester begins, Mr. Hertz-berg is ordered to pay to his oldest daughter seventy-five percent (75%) of [her] tuition, books, and fees at [junior college]. (Note: Mr. Hertzberg’s portion is not to exceed $1,000 per semester while his daughter attends [junior college] and lives in the home of [the grandparents]). As his oldest daughter enters Auburn University and each term/semester thereafter, Mr. Hertz-berg is ordered to pay 75% of [her] tuition, books, and fees necessary to obtain a four-year degree ... for a period of two continuous years after his oldest child enters Auburn University and not to exceed 75% of the costs of her books, tuition, fees, room, and board. (Note: Mr. Hertzberg’s portion is not to exceed $3500 per term/semester).”

The father filed a motion to alter, amend, or vacate the judgment or, in the alternative, for a new trial, alleging that he was financially unable to pay the amount ordered by the court. The court denied the motion. The father appeals.

The father, an airline mechanic, is employed with DynCorp, where he works approximately 40 hours per week and earns an hourly wage of $19.48. He has remarried and he now has a stepdaughter. The record indicates that the father’s regular net monthly income is $2,319.47; his current living expenses and debt obligations total approximately $2,300 per month. This includes monthly living expenses for not only the father, but also his current wife and his stepdaughter. The father testified that his current wife has no income other than the amount she receives from cleaning other people’s houses. However, when asked how much income his current wife receives from cleaning houses, the father responded: “I have no idea.” Likewise, when asked how many houses his current wife cleans each week, the father answered, “I have no idea.” When asked how much child support his current wife receives from her former husband for the stepdaughter, the father testified: “I’m not sure. Two-hundred and some dollars. Three-hundred dollars. I’m not sure.”

Although the older daughter had not reached the age of 19 at the time the petition was filed, she was already attending a junior college. During her first two semesters, the older daughter’s transcript showed that she had made A’s, B’s, and one C. The grandmother testified that she expected the older daughter to attend Auburn University in the future.

The record indicates that the grandparents and the father currently share the older daughter’s educational expenses. With respect to the daughter’s first year of attendance at junior college, the father testified that he had paid approximately one-half of her college expenses, totaling $1,061.64. He farther testified that making such a payment was no longer feasible. According to the father, his monthly earnings had decreased because he was no longer receiving approximately 18-20 hours of overtime per pay period, i.e., every two weeks. He explained that a requirement that he pay even 60 percent of his daughter’s educational expenses would be difficult, particularly when the daughter started attending Auburn University. The grandmother testified that she paid the other half of the daughter’s education expenses.

Initially, we must note that in reviewing this case we are governed by the ore tenus rule. When a trial court hears ore tenus evidence, its judgment is presumed to be correct and will not be disturbed on appeal unless it is unsupported by the evidence so as to be plainly and palpably wrong. Bishop v. Pierce, 726 So.2d 663, 664 (Ala.Civ.App.1998).

In Alabama, a parent may be required to provide postminority educational support. Ex parte Bayliss, 550 So.2d 986 (Ala.1989). In reaching its decision, the trial court “ ‘shall consider all relevant factors that shall appear reasonable and necessary, including primarily the financial resources of the parents and the child and the child’s commitment to, and aptitude for, the requested education.’ ” Thompson v. Thompson, 689 So.2d 885, 887 (Ala.Civ.App.1997) (quoting Ex parte Bayliss, 550 So.2d at 987). Further, this court has held that “[a] parent has a legal duty to provide or aid in providing a college education for his/her child if the child demonstrates the ability and willingness to attain a higher education and the parent has sufficient estate, earning capacity, or income to provide financial assistance without undue hardship to himself.” Thrasher v. Wilburn, 574 So.2d 839, 841 (Ala.Civ.App.1990). In this case, the older daughter’s ability and willingness to obtain a college education are not disputed by the parties.

This court has further held, however, that the trial court must set reasonable limitations on the parent’s responsibility for postminority educational support, because the failure to do so may impose an undue hardship on the paying parent. See, e.g., Penney v. Penney, 785 So.2d 376 (Ala.Civ.App.2000); Ullrich v. Ullrich, 736 So.2d 639, 643 (Ala.Civ.App.1999); Kent v. Kent, 587 So.2d 409 (Ala.Civ.App.1991) (reversing and remanding for the trial court to limit the support to a reasonable period, require the child to maintain at least a “C” average, and require that the child be enrolled as a full-time student).

The father first argues that the trial court abused its discretion by failing to place reasonable restrictions on the award of postminority educational support. We agree. The trial court failed to incorporate sufficient temporal and academic restrictions in its order. The trial court’s judgment ordered the father “to pay to his oldest daughter seventy-five percent (75%) of [her] tuition, books, and fees at [junior college].” Although it further provides that the father will be responsible only for paying the support “for a period of two continuous years after [the daughter] enters Auburn University,” the order failed to place a reasonable time limit on the daughter’s completion of junior college. This provision could arguably require the father to pay support until the daughter obtains a degree, even if it takes her substantially longer than four years. Moreover, the order contains no requirements as to the minimum number of courses the daughter must take each semester, nor does it limit the number of courses the daughter may drop or fail and still expect support from the father. It also failed to include academic restrictions providing that the support will continue only if the daughter maintains acceptable grades.

The father also argues that the trial court erred in ordering him to pay 75 percent of his older daughter’s postminority educational expenses because, he contends, it imposes an undue hardship on him. The father testified that he was financially unable to pay such a large percentage of the costs. He further testified that his income almost equals his monthly expenses. The exhibits filed with his posh judgment motion tend to support the father’s testimony in this regard. Although there was evidence indicating that the father was not currently receiving the same amount of overtime as he had previously, the trial court also heard testimony to the effect that the father was still allowed to work occasional overtime. The portion of the postminority support the father is required to pay while the daughter is attending junior college will amount to approximately $1,000 per semester. As this court has explained, “ ‘undue hardship’ does not mean without any personal sacrifice. Most parents who send their children to college sacrifice to do so.” Thrasher, 574 So.2d at 841.

In addition, the trial court heard the above-described equivocal testimony from the father regarding the amount of income earned by his current wife and the amount of child support received by his current wife for her daughter. Further, this court has previously noted that “[t]he fact that the father is now supporting a new wife and her [child] does not relieve him of his obligation to his [child from his first marriage].” Coleman v. Coleman, 648 So.2d 605, 607 (Ala.Civ.App.1994). See also Prestwood v. Prestwood, 344 So.2d 509 (Ala.Civ.App.1977). On the basis of the testimony presented to the trial court, we cannot conclude that the trial court abused its discretion in requiring the father to pay up to $1,000 per semester for the daughter’s educational expenses while she attends junior college.

The father also argues that requiring him to pay 75 percent of the daughter’s prospective educational expenses (not to exceed $3500 per semester) when she attends Auburn University imposes an undue hardship on him. Without evidence of the cost of attending a postsec-ondary educational institution, however, we cannot review a trial court’s decision as to the amount it orders a parent to pay for postminority educational support. Penney, 785 So.2d at 379 (citing Thrasher, 574 So.2d at 841). In Penney, this court held that it was reversible error for the trial court to fail to take evidence and to make findings to determine the expenditures, including tuition, fees, room, and board, that would have been necessary for the daughter to attend college. Id. at 381. See also Thrasher, 574 So.2d at 841. In this case, the only evidence of the daughter’s prospective educational expenses at Auburn University were general statements made by the maternal grandmother while testifying. No competent evidence regarding the actual cost of attending Auburn University, including tuition, books, fees, and room and board, was introduced at trial. We conclude that the trial court erred in failing to take such evidence.

Accordingly, we reverse the portion of the trial court’s judgment awarding prospective postminority educational support relating to the older daughter’s anticipated attendance of Auburn University. We remand the case for the trial court to take such farther evidence as it deems necessary to make a determination of the expenditures for tuition, fees, room, and board, that will be necessary for the child to attend Auburn University and a determination of whether requiring the father to pay 75% of these expenditures will result in an undue hardship on the father. In addition, the trial court should impose reasonable temporal and academic limitations on its award. We affirm that portion of the judgment requiring the father to pay 75 percent of the daughter’s current expenses at junior college.

The appellees’ request for the award of an attorney fee on appeal is denied.

AFFIRMED IN PART; REVERSED IN PART; AND REMANDED WITH INSTRUCTIONS.

THOMPSON and PITTMAN, JJ., concur.

YATES, P.J., concurs in the result.

CRAWLEY, J., dissents.

CRAWLEY, Judge,

dissenting.

I. Undue Hardship

I dissent from that portion of the opinion affirming the requirement that the father pay 75% of the daughter’s postminority educational expenses at junior college because I have concluded that the imposition of the award poses an undue hardship on the father. The father presented evidence indicating that, after deducting his expenses from his net income, he has approximately $20 per month remaining in disposable income. Although the trial court heard the father testify that he hoped to get enough overtime in the future to enable him to pay for one-half of the daughter’s expenses at junior college, as he admitted he had agreed to do, the father clearly testified that he had little or no control over when he would be offered overtime and that he had been offered only approximately 8 hours of overtime in the 4 months preceding the trial as opposed to the nearly 20 hours in overtime he had routinely been offered on a biweekly basis.

Although this court has routinely stated that “undue hardship” does not mean without personal sacrifice, see Thrasher v. Wilburn, 574 So.2d 839, 841 (Ala.Civ.App.1990), I cannot, based on the expense figures submitted by the father, agree that the order requiring the father to pay 75% of the costs of his daughter’s attending junior college is not an undue hardship on this father. The father’s income had substantially decreased, yet the trial court increased the father’s obligation from 50 percent to 75 percent! This court has reversed an award of postminority educational support when “[ojrdinary arithmetic would indicate that after taxes and other deductions, the father has a disposable income barely sufficient to meet his current financial obligations.” Jones v. Philpot, 591 So.2d 864, 867 (Ala.Civ.App.1991); see also Fielding v. Fielding, 843 So.2d 766 (Ala.Civ.App.2002); A.L. v. B.W., 735 So.2d 1237, 1239-40 (Ala.Civ.App.1999). As we said in Fielding,

“to require a parent to pay a portion of a child’s postminority-educational expenses despite the fact that he or she may be required to incur additional debt to do so goes beyond mere personal sacrifice. A child is not entitled to have his or her parent finance all or part of postminority-educational endeavors without regard to the financial impact doing so would impose upon that parent. A trial court considering whether to award postminority-educational support should consider several factors, but must focus ‘primarily [upon] the financial resources of the parents and the child.’ Ex parte Bayliss, 550 So.2d at 987.”

Fielding, 843 So.2d at 769.

II. Applicability of Bayliss

The premise of Ex parte Bayliss, 550 So.2d 986 (Ala.1989), was that a court could order postminority educational support if the noncustodial parent decided not to provide college expenses that the child “probably would have had if their parents had not divorced.” 550 So.2d at 995.

That premise does not apply to this father because, in addition to payment of child support, he voluntarily provided financial support to his older daughter and agreed to do likewise for his younger daughter. There was no evidence indicating that the father’s support for the older daughter’s education was less than it would have been if the parties had not divorced. “The State, by and through its elected judges, should not be the director of education for children.” Ex parte Tabor, 840 So.2d 115, 126 (Ala.2002) (Moore, C.J., concurring in part and dissenting in part).

III. Evidence on Remand

I also dissent from that part of the opinion reversing the award of postminority-educational expenses for attendance at a four-year university because of lack of evidence of the costs to be incurred. McAlpine v. McAlpine, [Ms. 2010352, Nov. 15, 2002] — So.2d -, - (Ala.Civ.App.2002) (stating that a party should not be afforded the opportunity to submit sufficient evidence of college expenses on remand) (Crawley, J., concurring in the result). The majority remands the case “for the trial court to take such further evidence as it deems necessary.” 855 So.2d at 565.

TV. Burden of Proof

The following statements in the majority opinion that “the trial court erred in failing to take such evidence,” 855 So.2d at 565, and “[w]e remand the case for the trial court to take such further evidence as it deems necessary” are incorrect because the grandparents bear the burden of proving college expenses. 855 So.2d at 565. Ex parte McFadden Eng’g, Inc., 885 So.2d 996 (Ala.2002) (in our judicial system, the burden of proof is always on the party bringing the allegations); and International Union v. Russell, 264 Ala. 456, 88 So.2d 175 (1956).

V. Grandparent Resources

“[T]he trial court shall consider all relevant factors that shall appear reasonable and necessary, including primarily the financial resources of the parents and the child.” Ex parte Bayliss, 550 So.2d 986, 987 (Ala.1989). The grandparents provided no evidence of their and the daughter’s financial resources. Without such evidence, the trial court cannot decide what percentage or amount of support the father should be required to pay.

VI. Conclusion

In conclusion, I would reverse the trial court’s judgment. Rather than remand for the trial court to take evidence, I would instruct the trial court on remand to enter an order denying the requested increase in postminority educational support. The grandparents failed to present sufficient evidence of their and the daughter’s financial resources, and the father presented evidence indicating that the award would pose an undue hardship.

      . The older daughter reached the age of majority on February 13, 2001.

      . The trial court also increased the total child support payable by the father for both daughters to $684 per month for the four months before the older daughter reached the age of majority.

      . The record indicates that the deductions from the father's gross pay that result in a net monthly income of $2,319 include deductions totaling $139 for the medical and dental insurance coverage for his daughters.

      . The father’s monthly bills and living expenses include a mortgage payment of $673.74, a second mortgage payment of $160, $431 for child support, $120.75 for electricity, $19.56 for water, $65.58 for phone service, $55.45 for cable, $50 for a credit-card bill, $110 for gasoline, $138.22 for medical expenses not covered by insurance, $76.02 for car insurance, and $400 for groceries, supplies, etc., for three people.

      . The record does indicate, however, that the husband received overtime pay of $30 per hour for eight hours of overtime work during the four months before trial.

      .The father testified that he had no control over the amount of overtime work he was offered by his employer. He also testified as follows, however, when asked how he would pay 50 percent of the older daughter's "college expenses” (the question did not specify either expenses for attending junior college or expenses for attending Auburn University) if ordered to do so by the court: "I don’t know. Hopefully, I can get overtime. That’s the only way I can do it.” The record also contains the following testimony by the father:
      "Q. Then what is your position on payment of college expenses?
      "A. I had agreed with the Gaineys to pay half. And I'm still going to continue to try to come up with the money any way that I can.
      "Q. Are you financially able to pay 75 percent?

        “A. No, sir.
      "Q. Do you understand that when [your older daughter] goes to Auburn—
      "A. The expenses will increase, yes. Hopefully, I'll have a few small bills taken care of by then, so I will be financially able to.”


author: PER CURIAM.

text:
    STATE ex rel. Douglas VALESKA, District Attorney v. Tyrese FARRIER.
    2011291.
    Court of Civil Appeals of Alabama.
    Feb. 14, 2003.

      Eric C. Davis, asst, district atty., Do-than, for appellant.
    Submitted on appellant’s brief only.
   PER CURIAM.

The State of Alabama sued Tyrese Farrier pursuant to § 20-2-93, Ala.Code 1975, seeking the forfeiture of a 1983 Cadillac DeVille automobile, VIN # 1G6AD698209179697. The State alleged that the automobile was owned by Farrier and was being used to transport or to facilitate the transportation, sale, receipt, possession, or concealment of marijuana. Farrier answered, denying all material allegations and demanding strict proof thereof. Following an ore tenus proceeding, the trial court entered an order in favor of Farrier. The State appeals.

On May 10, 2002, the narcotics division of the Houston County Sheriffs Department was conducting surveillance on Farrier’s residence because of a tip received through the “Crimestoppers” program. The narcotics officers observed Farrier leaving his residence driving the Cadillac DeVille, which is the subject of this forfeiture complaint. The officers stopped Farrier after he was seen weaving in his lane of traffic. As the officers approached the vehicle they smelled the odor of marijuana. The officers collected 4.74 grams of marijuana from Farrier’s person and vehicle. Farrier later pleaded guilty to misdemean- or possession of a controlled substance.

The trial court stated on the record that it denied the State’s forfeiture complaint because the underlying criminal case was based on a misdemeanor charge of possession of marijuana. Our supreme court held in Ex parte Dorough, 773 So.2d 1001 (Ala.2000), that mere possession of a controlled substance in a vehicle is a sufficient basis for the forfeiture of that vehicle pursuant to § 20-2-93, Ala.Code 1975. The issue whether the forfeiture in this case violates the excessive fines clause of the Eighth Amendment was not raised and is, therefore, not before this court. Accordingly, the judgment of the trial court is reversed, and the case is remanded for further proceedings.

REVERSED AND REMANDED.

All the Judges concur.

      . Farrier has not provided this court with a brief on appeal.


author: YATES, Presiding Judge.

text:
    WADE SAND & GRAVEL, INC. v. Dwayne LACEY. Dwayne Lacey v. Wade Sand & Gravel, Inc.
    2010963.
    Court of Civil Appeals of Alabama.
    Feb. 14, 2003.
    David M. Wilson and Irene E. Blomen-kamp of Wilson & Berryhill, P.C., Birmingham, for appellant/cross-appellee Wade Sand & Gravel, Inc.
    Robert W. Lee, Jr., and Wendy N. Thornton of Lee & Thornton, P.C., Birmingham, for appellee/cross-appellant Dwayne Lacey.
   YATES, Presiding Judge.

Dwayne Lacey sued his employer, Wade Sand & Gravel, Inc. (“Wade”), on January 24, 2001, seeking to recover workers’ compensation benefits for an injury he allegedly sustained on September 16, 1999, during the course of his employment with Wade. Lacey alleged that he was rendered permanently and totally disabled as the result of the alleged injury. Wade answered, denying that Lacey had sustained a work-related injury on September 16, 1999, and alleging that Lacey’s alleged injury was a continuation of a previous work-related injury for which Lacey had been compensated.

Following an ore tenus proceeding, the trial court, on June 6, 2002, entered the following order:

“This is a Worker’s Compensation case. The parties stipulate that plaintiff sustained injuries in the line and scope of his employment with defendant on Sept. 16, 1999. Further, they agree both were subject to the Workers’ Compensation Act at said time, that plaintiffs average weekly wage was $487.50, and that he has been paid no temporary total disability benefits. All medical bills have been paid pursuant to a consent settlement between the parties dated July 26, 1999, which grew out of an alleged on the job injury of Oct 16, 1997. It is that injury which gives rise to this trial. The plaintiff claims this is a new injury, which when cumulated with the thoracic injury of Oct. 16, 1997, renders him 100% permanently totally disabled. Defendant, in addition to contesting the degree of disability, alleges this injury is merely a non-compensable recurrence of the 1997 injury.
“On the date of this alleged injury the plaintiff was approximately two years post his first accident in this employment and ten weeks post his settlement of that injury. In July and August before this September injury he was complaining of back pain at a level of 10/10. In his words, he was hurting too bad after the 1997 injury to work. The exact origin of this claimed injury is uncertain but it is clear from plaintiffs own testimony his back just got to hurting so bad from the previous injury he could not work any more. Compounding plaintiffs physical problems are severe and disabling brain injuries stemming from a serious accident while he was in high school and unrelated degenerative back problems and knee injuries.
“It is clear from the evidence the plaintiff, although physically unable to work following his 1997 injury, for various laudable reasons undertook to do so, and that defendant laudably allowed him to try. It is found that the cumulative effects of this effort by plaintiff caused him to be unable to continue after the triggering events of Sept 16, 1999, the day he was moving rocks and using pressure hoses. The court finds the aggravations of that day caused plaintiff to be temporary totally disabled to work until January 8, 2001, at which time he was found to be ‘stable,’ or as this court hereby finds, returned to the condition which existed on Sept. 16, 1999 with no further, different or worse permanent impairment. Due to the temporary and non-permanent injuries sustained on that day, though, 67 weeks of temporary total disability payments remain unpaid. At plaintiffs average weekly wage of $487.50, his compensation rate is $324.77 per week for a total of $21,759.37.
“The court further finds, as urged by defendant, that both the thoracic and lumbar back conditions of plaintiff were caused by the injury of Oct. 16, 1997, and shall continue to be paid pursuant to law and the [judgment] of July 26, 1999, in case number CV-99-656.
“Plaintiffs able counsel have well earned and are hereby awarded as attorneys fee the sum of $3,263.
“Accordingly, it is ordered, adjudged and decreed as follows:
“1. That plaintiff have and recover of defendant the sum of $21,759.37 as unpaid but accrued temporary total disability payments.
“2. That judgment is rendered in favor of defendant as to permanent partial disability or vocational retraining benefits.
“3. That of the sums herein awarded to plaintiff, the sum of $3,263 shall be paid to his able counsel.
“4. That medical benefits shall be payable as noted herein.
“5. Costs taxed to defendant.”

Wade appeals; Lacey cross-appeals.

Wade argues that the trial court erred in finding that Lacey suffered a compensa-ble aggravation of his previous injury and in awarding temporary total-disability benefits. Lacey argues on cross-appeal that the trial court erred in failing to apply § 25-5-57(a)(4)f., Ala.Code 1975, and finding him permanently and totally disabled.

The trial court found that Lacey was physically unable to work following his first injury sustained in October 1997, but that he undertook to do so and suffered a compensable aggravation of that injury on September 16,1999, while lifting rocks and pressure hoses, which left Lacey temporarily totally disabled. Thereafter, the court found that both the thoracic and lumbar injuries were caused by the October 1997 accident. Section 25-5-88, Ala. Code 1975, requires that a final judgment in a workers’ compensation case contain a statement of the law, the facts, and the conclusions of law as determined by the trial court. See Ex parte Valdez, 636 So.2d 401 (Ala.1994). Failure to abide by the requirements of the statute mandates reversal. Lee Apparel Co. v. Hart, 623 So.2d 329 (Ala.Civ.App.1993). “Substantial compliance with § 25-5-88 has been deemed sufficient.” Id. at 330-31.

Although the trial court’s judgment in this case contains findings of fact, it contains no relevant applicable legal principles or any legal conclusions as to how the facts of this case relate to those legal principles. Until the trial court provides the required statement of law and makes conclusions based on that law, this court cannot review its findings and judgment. Id. Accordingly, the judgment is reversed and the case is remanded for the trial court to comply with the requirements of § 25-5-88, Ala. Code 1975.

REVERSED AND REMANDED.

CRAWLEY, THOMPSON, and MURDOCK, JJ., concur.

PITTMAN, J., concurs in the result.

      . Lacey suffered an injury to the T-6 vertebra in the October 1997 accident. He contended at the trial in this case that the injury suffered in September 1999 was farther down the spine in the lumbar area.


author: SHAW, Judge.

text:
    A.C.M. v. STATE of Alabama.
    CR-00-2473.
    Court of Criminal Appeals of Alabama.
    Oct. 25, 2002.
    Certiorari Denied Feb. 21, 2003 Alabama Supreme Court 1020240.

      Johannes T. Rech II, Montgomery, for appellant.
    William H. Pryor, Jr., atty. gen., and Hense R. Ellis II, asst. atty. gen., for appellee.
   On Application for Rehearing

SHAW, Judge.

The opinion of August 30, 2002, is withdrawn and the following opinion is substituted therefor.

The appellant, A.C.M., was convicted of rape in the first degree, a violation of § 13A-6-61, Ala.Code 1975. He was sentenced, as a habitual felony offender, to fife imprisonment.

The appellant raises two issues on appeal. First, he contends that the trial court erred in denying his motion to suppress evidence of hearsay statements made by E.R., the victim in this case, approximately seven hours after the rape because, he says, those statements did not fall within the excited-utterance exception to the hearsay rule. See Rule 803(2), Ala. R.Evid. Second, he contends that without E.R.’s hearsay statements, the evidence was insufficient to sustain his conviction.

The evidence adduced at trial indicated the following. In the late morning hours of June 14, 1999, S.F., the son-in-law of E.R., saw E.R. walking down the street near her home with a towel wrapped around her neck. S.F. testified that E.R. motioned to him with her finger to come to her, and that when he got to her, E.R. pulled the towel away from her neck, and he saw that her throat had been cut. According to S.F., the cut on E.R.’s throat was so deep that he “could see her vocal ... cord.” (R. 128.) S.F. testified that E.R. was weak, that she fell to the ground, and that he then got his wife, E.R.’s daughter, and they telephoned for help.

J.S. Daniel, a corporal with the Montgomery Police Department who responded to the emergency call, testified that when he arrived at the scene E.R. was sitting in the passenger seat of a vehicle holding a towel around her throat. Cpl. Daniel asked E.R. to remove the towel so that he could see the cut, and she did so. Cpl. Daniel said that the cut on E.R.’s throat was so deep that her windpipe was exposed and that, therefore, she was unable to speak. Cpl. Daniel nevertheless attempted to question E.R. about what had happened. Cpl. Daniel testified that when he asked E.R. if she had been raped, she nodded her head in the affirmative; when he asked E.R. if the rapist was a family member, she shook her head in the negative; when he asked E.R. if the rapist was someone she knew, she nodded her head in the affirmative; and when he asked E.R. if the rapist was her ex-husband, she shook her head in the negative. Cpl. Daniel testified that, despite her injuries, E.R. “seemed to have her senses about her” (R. 135), and that, in his opinion, she understood his questions and “answered each question knowledgeably.” (R. 143.)

When the paramedics arrived, they transported E.R. to the hospital, where Dr. Neil Stronach treated her. Dr. Stro-nach testified that E.R.’s windpipe had been “cut all the way through” (R. 101), and that she had a laceration to the jugular vein, which was the source of most of her bleeding. He said that the cuts had been caused by a sharp instrument. Dr. Stronach stated that, by the time E.R. arrived at the hospital, she had lost a lot of blood, her blood pressure was low, she was unable to breath on her own, and she was in severe shock. He said that normally the injuries E.R. had received would have caused death in approximately 15 minutes, but that in E.R.’s case, two factors had slowed the bleeding process and had probably saved E.R.’s life: E.R. had been lying down so most of the blood she had lost had not gone down her windpipe, and E.R. had a preexisting heart condition which prevented her heart from pumping blood as rapidly as it should. On cross-examination, Dr. Stronach testified that because E.R. had been in a severe state of shock when she arrived at the hospital, he believed that her ability to reason was impacted when he saw her. He also stated that she had lost approximately 60% of her blood volume and that that type of blood loss would impact a person’s sensory perceptions. The appellant’s counsel then posed the following question:

“[Appellant’s counsel]: Okay. So say an hour prior to this, if we assumed that the blood loss had — was significant an hour before you saw [E.R.], but not a whole lot more significant an hour later when you first saw her, would you say that her sensory perception would have been impaired, her ability to hear, reason, think, respond correctly, appropriately? Would her — would those functions be impaired?
“[Dr. Stronach]: Yes, sir.”

(R. 113-14.)

Testimony indicated that, at the time of the crime, the appellant had been living with E.R.’s other daughter off and on for approximately eight years and that the appellant and E.R. did not get along. E.R.’s daughter testified that the appellant had called E.R. a “bitch”; had told her that E.R. was jealous of their relationship; and had said that he hated E.R. (R. 152-53.) E.R.’s daughter also testified that she saw the appellant on the night of June 13, 1999, at approximately 10:30 p.m., when she went to bed. She did not see him again until the next morning at 10:00 a.m., when she got up and found him sleeping on the couch. Testimony also indicated that on the night of the crime, the appellant had been looking for E.R. C.L., who lived down the street from E.R., testified that at approximately 3:00 a.m. on June 14, 1999, the appellant had knocked on his front door and had asked him where E.R. lived. C.L. told the appellant that he did not know where E.R. lived, and the appellant then left.

Guy Naquin, a homicide detective with the Montgomery Police Department, testified that he investigated the attack on E.R. When he went to E.R.’s residence, he found dried blood on the living-room floor, articles of clothing with blood on them in the living room, a bloody towel in the bathroom, and a black-handled kitchen knife in the kitchen sink next to a sponge. His investigation eventually led him to the appellant, whom he interviewed on July 2, 1999. Before questioning the appellant, Det. Naquin advised the appellant of his Miranda rights, and the appellant signed a waiver-of-rights form. The appellant initially told Det. Naquin that he had been having sexual relations with E.R. for a long time and that he had had sex with her at her residence at approximately 4:00 a.m. on June 14, 1999, after which he had gone home. The appellant told Det. Naquin that E.R. had been fine when he had left her that morning. When Det. Naquin asked the appellant how he could have been having sexual relations with E.R. on a regular basis when he had not known where E.R. lived, the appellant changed his story. The appellant then said that he had had sexual relations with E.R. before she moved to her present residence but that he had not had sex with E.R. since she had moved. Testimony indicated that E.R. had moved three to four months before the rape. Det. Naquin also testified that the appellant told him that when he had seen on a television newscast that he was wanted concerning the rape, he had fled to New York to avoid arrest. On cross-examination of Det. Naquin, the following occurred:

“[Appellant’s counsel]: ... Well, you don’t recall him telling you that — ad-vis[ing you] that he had not had sex with [E.R.] in her new residence where she is now living? You don’t recall that—
“[Det. Naquin]: Yes, he did say that.
“[Appellant’s counsel]: He did say that?
“[Det. Naquin]: Yes.
“[Appellant’s counsel]: And he also told you that he didn’t know where her new residence was, didn’t he?
“[Det. Naquin]: Yes, he did say that.”

(R. 194.)

The parties stipulated that a rape kit had been performed on E.R. in the hospital on June 14, 1999, and that DNA analysis had revealed that the vaginal swabs taken as part of that kit contained the appellant’s semen. The parties also stipulated that E.R. died before trial from a preexisting condition unrelated to the rape.

The appellant contends that the trial court erred in denying his motion to suppress Cpl. Daniel’s testimony regarding E.R.’s hearsay statements made in response to his questions at the scene because, he says, those statements did not fit within the excited-utterance exception to the hearsay rule. Specifically, he argues that E.R.’s statements did not qualify as excited utterances because, he says, (1) they were made approximately seven hours after the rape; (2) they were made in response to questions by Cpl. Daniel; and (3) E.R. was in such a state of shock when she made the statements that she was unable to comprehend what was being asked of her.

Rule 803, Ala.R.Evid., provides, in pertinent part:

“The following are not excluded by the hearsay rule even though the declar-ant is available as a witness:
“(2) Excited Utterance. A statement relating to a startling event or condition made while the declarant was under the stress of excitement caused by the event or condition.”

Charles Gamble has stated the following regarding Rule 803:

“This rule sets out three conditions which must be met for admission of the statement. There must be a startling event or condition, the statement must relate to the circumstances of the occurrence and the statement must be made before time has elapsed sufficient for the declarant to fabricate. The statement must be the apparently spontaneous product of that occurrence operating upon the visual, auditory, or other perceptive sense of the speaker. The declaration must be instinctive rather than deliberative. In short, it must be the reflex product of the immediate sensual impressions, unaided by retrospective mental action. Whether a statement qualifies as an excited utterance is a preliminary and discretionary question for the trial court.”

Charles W. Gamble, McElroy’s Alabama Evidence § 265.01(1) (5th ed.1996) (footnotes omitted). “The question of whether the statement is spontaneous in a given case is to be decided upon the facts and circumstances of that case, and such determination is a question for the trial court.” O’Cain v. State, 586 So.2d 34, 38 (Ala.Crim.App.1991). See also Berryhill v. State, 726 So.2d 297 (Ala.Crim.App.1998).

“The Alabama Supreme Court, very early on, described the essential element when it observed that admissibility under the present exception
“‘depends upon whether the circumstances are such as that it may with reasonable certainty be affirmed that the declarations were produced by and instinctive upon the occurrences to which they relate rather than a retrospective narration of them. If they are the ebullition of a state of mind engendered by what happened and not a mere statement of the facts as held in memory of a past transaction — if they were made so soon after the difficulty as that, under the particular circumstances transpiring between the difficulty and the declarations, it is reasonably clear that they sprang out of the transaction.’
“This decision made it clear that a statement, to be admissible within the present exception, must be made while the declarant is under the stress of excitement caused by the event or condition. The essence of this historic requirement is found in the word ‘spontaneous.’ The trial court, in determining whether the statement was made spontaneously or during the stress of excitement, ought to consider at least the following: the degree of startlingness of the occurrence; how much time passed after the occurrence but before the statement was made; the effect of intervening events; the nearness of the place where the statement was made to the place of the occurrence; the condition of the declar-ant; the content of the statement itself; and all other facts relating to whether the declarant was under the stress of a nervous excitement at the time the statement was made.
“One of the primary factors, in any determination of whether the declarant was under the stress of excitement when the statement was made, is the timing of the statement.... The lapse of time between the startling event or condition and the statement is relevant to the issue of spontaneity but not dispositive of it. The better approach to this problem, however, is suggested by those decisions which have held that the question of spontaneity is to be decided upon the facts and circumstances of each individual case and such a determination is a question for the trial judge....
“It should be kept in mind that strict contemporaneity should not be required between the statement and the occurrence in order for the declaration to qualify for the present hearsay exception. Indeed, our courts have said that time alone is not a determining criterion and that applicability of this exception cannot be decided upon the basis of any specified time or number of minutes between the act and the declaration. The critical factor is whether the person who made the statement is still under the influence of the emotions arising from the startling event. Stated differently, the statement does not have to be made contemporaneously with the startling event or condition but it must be uttered contemporaneously with the excitement resulting from the startling event or condition. How long the excitement prevails is largely determined by the character of the event or condition.”

Gamble, § 265.01(2), quoting Nelson v. State, 130 Ala. 83, 88, 30 So. 728, 730 (1901)(footnotes omitted).

In this case, approximately seven hours elapsed from the time of the “startling event” and E.R.’s statements to Cpl. Daniel. However, it appears from the record that E.R. was unconscious during much of that time. At the pretrial hearing on the appellant’s motion to suppress, the parties discussed a statement E.R. had given to police several days after the rape in which E.R. indicated that after the appellant had raped her, he choked her until she was unconscious; that when she woke up, she was lying in a pool of blood; and that she left her house and sought help immediately after regaining consciousness and discovering that her throat had been cut.

“Declarations made immediately upon regaining consciousness by a party injured in an accident by which he was rendered unconscious are viewed by most courts as being as much a part of the occurrence as if they had been made immediately after the accident. According to these courts, the period of unconsciousness is not to be taken into consideration in determining the question of spontaneity as affected by the lapse of time. The real test is whether the circumstances exclude premeditation and design. The fact that declarations are made in response to questions of an attending physician when such injured person is first restored to consciousness will not affect the admissibility of such statements, although it is a factor entitled to consideration.”

29A Am.Jur.2d Evidence § 886 (1994)(foot-notes omitted). See also Shiflett v. State, 262 Ala. 337, 78 So.2d 805 (1955). Thus, that portion of the time between the attack and E.R.’s statements to Cpl. Daniel during which E.R. was unconscious should not be considered in determining the spontaneity of her statements. Although the statements to Cpl. Daniel were made approximately seven hours after the attack, they were made only a few minutes after E.R. regained consciousness.

Moreover, “the fact that the utterance was the result of a question is merely a factor to be considered in determining whether the statement was made while the declarant was under the stress of excitement.” Gamble, § 265.01(3) (footnote omitted). “[A] statement made in response to a question is admissible as a spontaneous exclamation if the person answering was still under the influence of the excitement or shock of the crime.” O’Cain, 586 So.2d at 38. Thus, although the fact that the statements were made in response to questioning by Cpl. Daniel was a factor to be considered, it was not dis-positive of the admissibility of the statements, especially under the circumstances in this case. As noted above, Dr. Stronach testified that E.R.’s windpipe had been cut all the way through, Cpl. Daniel testified that her windpipe was “exposed,” and both testified and that she was unable to speak; physical gestures were her only means of communicating. Such gestures would be best understood when made in response to questions.

Finally, the condition of the declarant at the time of the statements is also a factor to be considered in determining the admissibility of the statements; however, -it is, like the other factors, not alone dispositive of the issue. As noted above, Dr. Stronach testified that when E.R. arrived at the hospital she was in a severe state of shock because of a significant loss of blood, and that her ability to reason was impacted. However, contrary to the appellant’s contention in his brief to this Court, Dr. Stro-nach never testified that “the victim was in a severe state of shock at least one hour prior to his examining her.” (Appellant’s brief at p. 14.) Rather, in response to a hypothetical question posed by the appellant’s counsel, Dr. Stronach testified that if it was assumed that the amount of blood loss was significant an hour before E.R. arrived at the hospital (i.e., at the time she made the statements to Cpl. Daniel) and no more significant when she arrived at the hospital — i.e., that the majority of her blood loss occurred before she spoke with Cpl. Daniel and she had lost little or no more blood between the time she spoke with Cpl. Daniel and the time she arrived at the hospital — then her ability to reason, to think, and to respond appropriately would have been impaired an hour before she arrived at the hospital. However, there was no evidence indicating that the majority of E.R.’s blood loss occurred before she spoke with Cpl. Daniel. In fact, the evidence at trial suggests that the majority of the blood loss occurred between the time E.R. regained consciousness — only a few minutes before she spoke with Cpl. Daniel — and the time she arrived at the hospital. Dr. Stronach stated that it was, in part, E.R.’s horizontal position after the attack that prevented her from dying in less than 15 minutes, thus indicating that a significant amount of the blood loss did not even begin to occur until a few minutes before E.R. spoke with Cpl. Daniel, when she regained consciousness, got up, and began walking around. Moreover, Cpl. Daniel testified that when he questioned E.R., she “seemed to have her senses about her” and that she “answered each question knowledgeably” (R. 135, 143), and the record reflects that E.R. answered both “yes” and “no” to Cpl. Daniel’s various questions, thus demonstrating an awareness of the nature of the questions.

Considering that E.R. regained consciousness after the attack to discover that while she was unconscious her throat had been cut to the degree that her windpipe was severed; that although approximately seven hours passed between the attack and E.R.’s statements to Cpl. Daniel, E.R. was actually unconscious during most of that time and there were no intervening events; that E.R. made the statements to Cpl. Daniel just outside of her house where the attack had taken place; and that, despite bleeding profusely, E.R. nevertheless had her “senses about her” and answered Cpl. Daniel’s questions and indicated that she had been raped by someone she knew, we conclude that E.R. was still under the stress of excitement caused by the attack at the time she made the statements to Cpl. Daniel and that, therefore, her statements were properly admitted under the excited-utterance exception to the hearsay rule.

The appellant also contends that, without E.R.’s allegedly inadmissible statements to Cpl. Daniel, the evidence was insufficient to sustain his conviction for rape. Because we have already determined that E.R.’s statements were properly admitted, however, we must consider them, along with all of the other evidence, in determining whether there was sufficient evidence to sustain the appellant’s conviction.

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

Viewing the evidence in the light most favorable to the State, we conclude that it was sufficient to sustain the appellant’s conviction. E.R.’s throat was cut, and she told Cpl. Daniel that she had been raped by someone she knew. The evidence showed that E.R. knew the appellant; that the appellant did not get along with E.R.; and that the appellant had been looking for E.R. on the day of the crime. The appellant’s semen was found on the vaginal swab taken from E.R. in the hospital. When the appellant discovered that he was wanted in connection with the rape, he fled the state. See, e.g., Ex parte Jones, 541 So.2d 1052 (Ala.1989)(flight is evidence of consciousness of guilt). When eventually questioned by the police, the appellant initially told Det. Naquin that he and E.R. had been having sexual relations for a long period of time and that he had had sex with E.R. at her home on the morning of the crime. However, when he was confronted with evidence indicating that he had not known where E.R. lived, the appellant changed his story and told Det. Naquin that he had never had sex with E.R. in E.R.’s present residence. This evidence was sufficient to establish that the appellant raped E.R.

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

OPINION OF AUGUST 30, 2002, WITHDRAWN; OPINION SUBSTITUTED; APPLICATION OVERRULED; AFFIRMED.

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

      . He was also indicted for attempted murder of the same victim; the jury acquitted him of that charge.

      . The appellant did not use E.R.'s name when asking about her, but used a nickname. Testimony at trial showed that the nickname the appellant used when asking C.L. where E.R. lived was, in fact, E.R.’s nickname.

      . See Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).

      . Rule 1101(b)(1), Ala.R.Evid., provides, in part, that the rules of evidence do not apply to "[t]he determination of questions of fact preliminary to admissibility of evidence when the issue is to be determined by the court under Rule 104.” Rule 104(a), Ala.R.Evid., provides, in pertinent part, that "[p]reliminary questions concerning ... the admissibility of evidence shall be determined by the court,” and that "[i]n making its determination, [the court] is not bound by the rules of evidence except those with respect to privileges.” Therefore, the trial court could, and clearly did, consider E.R.'s statement to police several days after the attack in determining the admissibility of her statements to Cpl. Daniel.

      . It appears from the record that a portion of E.R.’s statement was recorded. A transcript of the recorded portion of the statement is included in the record on appeal. In that transcript, E.R. stated that after the appellant had raped her, he choked her until she was unconscious, and that when she woke up, she was lying in a pool of blood. The transcript does not reflect that E.R. stated that she immediately left her house and sought help after regaining consciousness. However, a police report prepared by the officer who took the statement, which summarizes E.R.’s statement, specifically states that E.R. told him that "she woke up several hours later in a pool of blood, went to the bathroom, and saw that her throat was cut. She stated she then staggered outside and summoned help.” (C. 59.)


author: BASCHAB, Judge.

text:
    Lowery Dale WILSON v. STATE of Alabama.
    CR-01-2256.
    Court of Criminal Appeals of Alabama.
    Oct. 25, 2002.
    Opinion on Return to Remand Feb. 28, 2003.

      Lowery Dale Wilson, pro se.
    William H. Pryor, Jr., atty. gen., and Jack W. Willis, asst. atty. gen., for appel-lee.
   BASCHAB, Judge.

On October 30, 1996, the appellant, Lowery Dale Wilson, pled guilty to second-degree promoting prison contraband. The trial court sentenced him, as a habitual offender, to serve a term of fifteen years in prison. See § 13A-5-9(b)(l), Ala.Code 1975. It then suspended his sentence and placed him on supervised probation for three years. The appellant alleges that, on February 10, 2000, his probation officer arrested him without a warrant. On March 9, 2000, the circuit court revoked his probation, and he did not appeal the revocation of his probation. On April 9, 2002, the appellant filed a Rule 32 petition, challenging the revocation of his probation. After the State responded, the circuit court summarily dismissed his petition. This appeal followed.

The appellant argues that the circuit court did not have jurisdiction to revoke his probation because “[t]he process for revoking [his] probation had not begun before [the] probationary period expired.” (C.R.14.) He also argues that he did not appeal the revocation of his probation through no fault of his own. Specifically, he contends that he told his attorney to appeal the revocation, but that his attorney did not file an appeal. The State did not properly address the specific claims the appellant raises. Therefore, it did not refute those claims. Further, in its order dismissing the petition, the circuit court did not properly address the specific claims the appellant raises. Although the State and the circuit court make refer-enees to an extension of the terms of the appellant’s probationary period, neither specifically asserts, and the record does not establish, that his probationary period was extended. Also, neither the State nor the circuit court refutes the appellant’s allegation that he told his attorney to appeal the revocation of his probation and that his attorney refused to do so. Therefore, the appellant’s claims that the circuit court did not have jurisdiction to revoke his probation and that he did not appeal the revocation of his probation through no fault of his own appear to be meritorious.

Accordingly, we remand this case to the circuit court with instructions that that court make specific, written findings of fact concerning the appellant’s specific claims. On remand, the circuit court may require the State to respond specifically to the appellant’s contentions and/or may conduct an evidentiary hearing. The circuit court may also grant any relief it deems appropriate. On remand, the circuit court shall take all necessary action to see that the circuit clerk makes due return to this court at the earliest possible time and within 42 days after the release of this opinion. The return to remand shall include the circuit court’s written findings of fact and, if applicable, the State’s response and/or a transcript of the evidentiary hearing.

REMANDED WITH INSTRUCTIONS.

McMILLAN, P.J„ and COBB, SHAW, and WISE, JJ., concur.

On Return to Remand

BASCHAB, Judge.

On October 30,1996, the appellant, Lowery Dale Wilson, pled guilty to second-degree promoting prison contraband. The trial court sentenced him, as a habitual offender, to serve a term of fifteen years in prison. See § 13A-5-9(b)(l), Ala.Code 1975. It then suspended his sentence and placed him on supervised probation for three years. The appellant alleges that, on February 10, 2000, his probation officer arrested him without a warrant. On March 9, 2000, the circuit court revoked his probation, and he did not appeal the revocation of his probation. On April 9, 2002, the appellant filed a Rule 32 petition, challenging the revocation of his probation. After the State responded, the circuit court summarily dismissed his petition, and he appealed to this court.

On October 25, 2002, we remanded this ease to the circuit court with instructions that that court make specific, written findings of fact concerning the appellant’s claims that the circuit court did not have jurisdiction to revoke his probation and that he did not appeal the revocation of his probation through no fault of his own. See Wilson v. State, 855 So.2d 579 (Ala.Crim.App.2002). On November 21, 2002, the circuit court submitted its order on return to remand. In that order, the circuit court addressed the appellant’s claim that the circuit court did not have jurisdiction to revoke his probation. However, it did not address his contention that he did not appeal the revocation of his probation through no fault of his own. Therefore, on December 6, 2002, we remanded this case to the circuit court by order with instructions that that court make specific, written findings of fact as to the appellant’s argument that he did not appeal the revocation of his probation through no fault of his own. On January 24, 2003, the circuit court submitted its second order on return to remand.

In his petition, the appellant specifically alleged that he requested that his attorney file a notice of appeal and that the attorney did not do so. The State has not refuted those specific allegations. At most, the State submitted an affidavit from the appellant’s attorney, stating, “I did not, at any time, tell [the appellant] that he could not appeal.” (Second Return to Remand, Exhibit E.) Further, in its second order on return to remand, the circuit court did not refute the appellant’s specific allegations that he requested that his attorney file a notice of appeal and that the attorney did not do so. Rather, the circuit court merely stated it had “advised the defendant of his right to appeal on two separate occasions, and the defendant’s attorney by affidavit never told the defendant that he could not appeal.” (Second Return to Remand.) Because the appellant’s allegations that he requested that his attorney file a notice of appeal and that the attorney did do so have not been refuted, those allegations must be taken as true. See Menefee v. State, 594 So.2d 251 (Ala.Crim.App.1992).

“ ‘Where a defendant informs his court-appointed counsel of his desire to appeal, but, through no fault of his own, an appeal is never taken, the defendant is entitled to an appeal of his conviction. Longmire v. State, 443 So.2d 1265, 1269 (Ala.1982).’ Hall v. State, 515 So.2d 134, 135 (Ala.Cr.App.1987).”

Id. at 251. Therefore, the appellant is entitled to an out-of-time appeal. Accordingly, we reverse the circuit court’s judgment and remand this case with instructions that that court grant the appellant leave to file an out-of-time appeal from the revocation of his probation. See Johnson v. State, 848 So.2d 282 (Ala.Crim.App.2002).

REVERSED AND REMANDED.

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

      . The appellant raises other arguments in his brief to this court. However, we pretermit discussion of those arguments at this time.


author: COBB, Judge.

text:
    C.M. v. STATE.
    CR-01-0873.
    Court of Criminal Appeals of Alabama.
    Nov. 22, 2002.
    Rehearing Denied Feb. 21, 2003.

      Trant Bullard, Dothan, for appellant.
    William H. Pryor, Jr., atty. gen., and Yvonne A.H. Saxon, asst. atty. gen., for appellee.
   On Application For Rehearing

COBB, Judge.

The opinion of September 27, 2002, is withdrawn, and the following opinion substituted therefor.

The juvenile court of Covington County, after hearing ore tenus evidence, adjudged C.M. to be delinquent on the charges of unlawful possession of marijuana for other than personal use, § 13A-12-214, Aa.Code 1975, and unlawful possession of drug paraphernalia, § 13A-12-260, Ala.Code 1975. C.M. was placed on supervised probation with the Covington County Department of Youth Services for one year. C.M. contends for the first time on appeal that the juvenile court erred by not appointing counsel to represent C.M. at C.M.’s delinquency hearing as required by § 12-15-63(a), Ala. Code 1975.

Section 12-15-63(a), Ala.Code 1975, provides:

“(a) In delinquency and in need of supervision cases, a child and his parents, guardian or custodian shall be advised by the court or its representative at intake that the child has the right to be represented at all stages of the proceedings by counsel retained by them or, if they are unable to afford counsel, by counsel appointed by the court.
“If counsel is not retained for the child in a proceeding in which there is a reasonable likelihood such may result in a commitment to an institution in which the freedom of the child is curtailed, counsel shall be appointed for the child.
“The court may appoint counsel in any case when it deems such in the interest of justice.”

(Emphasis added.)

In addition to the statute, Rule 11, Ala. R.Juv.P., sets forth various rights afforded a juvenile after a juvenile is taken into custody. Rule 11(F), Ala.R.Juv.P., sets forth the following as “[a]dditional rights of the child”:

“(1) The child has a right to be represented by counsel at all stages of the proceeding.
“(a) In any proceeding in which there is a reasonable likelihood that the child may be committed to an institution in which the child’s freedom may be curtailed, and in which proceeding counsel has not been retained, counsel shall be appointed for the child.
“(b) In all other proceedings, the court may appoint counsel in any case upon request or when it deems such appointment to be in the interest of justice.”

(Emphasis added.)

C.M. was arrested on October 18, 2000. The case was set for trial on April 5, 2001. C.M. was represented by retained counsel at this time. On April 5, 2001, the parties and the juvenile judge discussed the possibility of disposing of the case pursuant to a consent decree. C.M.’s father, D.M., who appeared with his son, stated that he needed to discuss this matter with his ex-wife who was attending law school in Massachusetts. To accommodate C.M., the juvenile court continued the case until August 15, 2001. On August 15, 2001, C.M.’s retained counsel withdrew from the case. To afford C.M. time to retain new counsel, the case was rescheduled for trial on October 10, 2001. On October 10, 2001, C.M. and his father appeared for trial without counsel. The juvenile court asked D.M. if C.M. was “waiving the right to an attorney.” (R. 9.) D.M. responded, “[n]o, sir” (R. 9), and explained that poor health had prevented his being “able to make an arrangement with an attorney ... [and] get this turned over to another counsel.” (R. 13.). The juvenile court interpreted D.M.’s comments that he had been unable to obtain counsel as a request for a continuance in order to retain counsel and conducted a hearing on the motion to continue. The evidence presented during the hearing was that although D.M. was in poor health, his poor health had not prevented his attending to other obligations such as court appearances, meeting with the Department of Youth Services, and attending his own doctor appointments. The State asserted that since April 5, 2001, two of its three witnesses had become unavailable to testify. The State also asserted that it was afraid that if the case was continued again it might lose its third and final witness against C.M. In denying the motion to continue, the juvenile court stated:

“Mr. [MJ, you have kept all three court appearances, including today, you’ve been able to appear. You testified just a minute ago that you’re able to keep all your monthly appointments with the doctor, and you’ve responded to coming to Youth Services’ office when they requested. So, I’m going to deny your motion for a continuance. Now, the Alabama Code in § 12-15-63(a), states that if counsel is not retained for a child in a proceeding in which there is a reasonable likelihood such may result in a commitment to an institution in which the freedom of the child is curtailed, counsel shall be appointed for the child. Now in light of that Code section, I’m going to state for the record that if your son were found guilty of the charges that have been brought against him, that we’re hearing today, I would not be committing him to an institution in which his freedom is curtailed. At most, he would be placed on probation and ordered to pay a fine. There would not be any sort of commitment to any juvenile detention facility or any juvenile facility, such as the HIT program or the Department of Youth Services. I’m stating that for the record, that he is not looking at being committed to any juvenile facility in the event that he is found guilty of these charges. So, for that reason, I’m not going to appoint counsel to represent him, because the law does not require me to. I will deny the motion for the continuance and we will proceed with the hearing at this time.”

(R. 24-26.)(Emphasis added.)

At the conclusion of the delinquency hearing, C.M. was adjudicated a delinquent based on the charged offenses and the sentence was imposed.

We find no reversible error in the juvenile court’s failure to appoint counsel to represent C.M. at C.M.’s delinquency hearing. The juvenile court specifically stated for the record that C.M. would not be committed to a youth detention facility. Instead, the juvenile court placed C.M. on probation. See § 12-15-71(c)(2), Ala.Code 1975, which permits the juvenile court to place a child found to be delinquent “on probation under conditions and limitations the court may prescribe.” Section 12-15-63(a), Ala.Code 1975, mandates appointment of counsel only where “there is a reasonable likelihood” that the proceeding may conclude with the child’s being committed to an institution in which his freedom is curtailed.

Thus, in the instant proceedings, the juvenile court correctly asserted that C.M. was not entitled to appointed counsel because the juvenile court had determined that C.M. would not lose his liberty if he was found to be a delinquent child. We note that should proceedings to revoke C.M.’s probation ever be initiated, Alabama v. Shelton, 535 U.S. 654, 122 S.Ct. 1764, 152 L.Ed.2d 888 (2002), provides that punishment resulting in the loss of liberty cannot be imposed because C.M. was not provided counsel at the delinquency hearing. Although Shelton is distinguishable from the instant case in that Shelton was indigent and he was sentenced to a suspended term of imprisonment without the benefit of counsel, the Shelton Court stated:

“Once the prison term is triggered, the defendant is incarcerated not for the probation violation, but for the underlying offense. The uncounseled conviction at that point ‘result[s] in imprisonment,’ Nichols [v. United States], 511 U.S. [738,] at 746 ... [ (1994) ]; it ‘end[s] up in the actual deprivation of a person’s liberty,’ Argersinger [v. Hamlin], 407 U.S. [25,] at 40 ... [ (1972) ]. This is precisely what the Sixth Amendment, as interpreted in Argersinger and Scott [v. Illinois, 440 U.S. 367 (1979)], does not allow.”

Shelton, 535 U.S. at 662, 122 S.Ct. at 1770.

Alabama’s statute provides that counsel “shall ” be appointed for a juvenile in a delinquency proceeding who does not have retained counsel if “there is a reasonable likelihood [the proceeding] may result in a commitment to an institution in which the freedom of the child is curtailed.” Thus, the above constitutional principle expressed in Shelton is equally applicable to nonindigent juvenile proceedings as a result of which liberty may be lost. The United States Supreme Court held in Shelton that

“a suspended sentence that may ‘end up in the actual deprivation of a person’s liberty’ may not be imposed unless that defendant was accorded ‘the guiding hand of counsel’ in the prosecution for the crime charged. Argersinger [v. Hamlin], 407 U.S. [25], at 40 [(1972)].”

Shelton, 535 U.S. at 658, 122 S.Ct. at 1767. The Shelton Court continued by emphasizing that “ ‘no person may be imprisoned for any offense ... unless he was represented by counsel at his trial’ Argersinger [v. Hamlin,] 407 U.S. [25], at 37 ... [(1972)] (emphasis added).” Id. Thus, pursuant to Shelton, by denying C.M. counsel during the guilt phase of the proceedings, the juvenile court has foreclosed its option of later placing C.M. in a youth detention facility. However, the juvenile-offender statutes provide a variety of sentencing options short of confinement. See § 12-15-71, Ala.Code 1975.

For the reasons set forth above, the juvenile court’s adjudication of delinquency for unlawful possession of marijuana for other than personal use and unlawful possession of drug paraphernalia is affirmed.

OPINION OF SEPTEMBER 27, 2002, WITHDRAWN; OPINION SUBSTITUTED; APPLICATION OVERRULED; AFFIRMED.

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

      . As conditions of his probation, C.M. was ordered to be on good behavior at all times; not to partake of alcoholic beverages, tobacco products, or illegal drugs; not to be around individuals in possession of items or be present at a location, such as a party, were those items were present. Additionally, as conditions of probation C.M. was ordered to submit to random drug tests as directed by his juvenile probation officer, to pay a monthly supervision fee, and to follow the rules issued by the probation officer. Also, C.M.’s driver's license was suspended for six months. (C.M. was 15 years old at the time of the hearing. It was ordered that the suspension would begin when he obtained his driver’s license at age 16.)

      . During the discourse between D.M. and the Court, D.M. never asked the Court to appoint counsel to represent C.M. Thus, the State contends that the instant claim was not preserved for appellate review. Because § 12-15-63(a), Ala.Code 1975, states that where a nonindigent child fails to retain counsel, the juvenile court “shall” appoint counsel for the child if there is a reasonable likelihood that child will be committed to an institution, no objection was required to present the issue for appellate review.

      . Section 12-15-71(c), Ala.Code 1975, provides in part:
      “(c) If a child is found to be delinquent or in need of supervision, the court may make any of the following orders or dispositions for the child’s supervision, care, and rehabilitation:
      "(1) Permit the child to remain with the parents, guardian, or other custodian of the child, subject to the conditions and limitations the court may prescribe.
      "(2) Place the child on probation under conditions and limitations the court may prescribe.”

      . The juvenile court has the authority, pursuant to § 12-15-11, Ala.Code 1975, to recover from a juvenile's parents the cost of appointed counsel. Section 12-15-11, Ala.Code 1975, states:
      “If, after due notice to the parents or other persons legally obligated to care for and support the child and after a hearing, the court finds that they are financially able to pay all or part of the court costs, as provided by law, attorney fees and expenses with respect to examination, treatment, care or support of the child incurred in carrying out the provisions of this chapter, the court shall order them to pay the same and may prescribe the manner of payment. Unless otherwise ordered, payment shall be made to the clerk of the court for remittance to those to whom compensation is due. If the child shall have an estate in the hands of a guardian or trustee, such guardian or trustee may be required to pay in a like manner. If the parent or other legally obligated person willfully fails or refuses to pay such sum, the court may proceed against him for contempt or the order may be filed and shall constitute a civil judgment.”

      . Section 12-15-63(a), Ala.Code 1975 (emphasis added).