author: YATES, Presiding Judge. PITTMAN, Judge, MURDOCK, Judge, CRAWLEY, Judge,

text:
    James A. BECK, Jr. v. James A. BECK, Sr., and Susan Beck.
    2010402.
    Court of Civil Appeals of Alabama.
    Jan. 10, 2003.
    Rehearing Denied March 21, 2003.
    Certiorari Denied May 16, 2003 Alabama Supreme Court 1021133.
    Mark E. Johnson, Arab, for appellant.
    Dan Warnes, Guntersville, for appellees.
   YATES, Presiding Judge.

James A. Beck, Jr. (“the father”), appeals from the trial court’s award of grandparent visitation to his parents, James A. Beck, Sr., and Susan Beck (hereinafter collectively referred to as “the grandparents”).

The father and the mother, Lisa Ditto, had one child during their marriage. The child was born in 1993. The father and mother divorced in 1996; they were awarded joint custody and the father was awarded primary physical custody. Subsequently, the father sought and was granted sole custody of the child in 1997.

On September 26, 2000, the grandparents moved to intervene in the divorce proceeding, seeking grandparent visitation. On December 12, 2001, the circuit clerk entered on the case action summary the trial court’s judgment awarding grandparent visitation, pursuant to § 30-3-4.1, Ala. Code 1975. However, there was no action pending before the trial court concerning “the custody of a minor child, a divorce proceeding of the parents or a parent of the minor child, or a termination of the parental rights proceeding of either parent of the minor child.” § 30-3-4.1(c), Ala. Code 1975. The last modification of custody occurred in 1997. Therefore, the grandparents should have filed an original action for visitation pursuant to § 30-3-4.1(b).

In T.R.S.S. v. R.S., 828 So.2d 327 (Ala.Civ.App.2002), the grandparents did not file an original action under § 30-3-4.1(b), but instead filed a motion to intervene under § 30-3-4.1(c). This court held that the grandparents’ motion to intervene was untimely because when they filed it on July 24, 2000, there was no action pending before the court; the final judgment of divorce had been entered on May 26, 2000. This court stated that it was “obvious on the face of the petition that it was not an original action, but instead was an attempt to intervene in the divorce action” as evidenced by the style and pleading of the petition as well as by the reference on the petition to the divorce case number. 828 So.2d at 330.

“Under common law principles, grandparents lacked any legal right to visitation and communication with their grandchildren if such visitation was forbidden by the parents.” Ex parte Bronstein, 434 So.2d 780, 782 (Ala.1983). This Court has held that the statutory right to seek grandparent visitation must be strictly construed. Chavers v. Hammac, 568 So.2d 1252 (Ala.Civ.App.1990)(great-grand-mother did not have standing to seek visitation under the predecessor act to § 30-3-4.1).

A majority of states have enacted grandparent-visitation statutes. We find instructive Bert v. Bert, 154 Mich.App. 208, 397 N.W.2d 270 (1986). In that case, the mother and father divorced in July 1982. The mother was awarded custody of their daughter, and the father was to have reasonable visitation. In December 1982, the father died. The mother remarried in February 1983 and the mother’s new husband adopted the daughter later that same year. In 1983, the paternal grandmother petitioned to intervene in the divorce action. The trial court granted the motion to intervene and entered an order awarding visitation. The Michigan Court of Appeals noted that the trial court’s jurisdiction over child custody and visitation matters continues until the parties’ child reaches age 18, but that that jurisdiction empowers the court to enter postjudgment child-custody orders only on the petition of either of the parents, and not of a grandparent. That court also noted that the Michigan Legislature had provided for grandparent visitation in its Child Custody Act. That provision set out two methods for obtaining court-ordered grandparent visitation: by intervening in a pending child-custody action or by “commencing an action” if one of the parents is deceased, whether or not a child-custody dispute is pending. 154 Mich.App. at 213, 397 N.W.2d at 273. The appeals court held that the circuit court should have dismissed the petition for intervention for lack of jurisdiction.

In Nation v. Nation, 715 P.2d 198 (Wyo.1986), the mother and father divorced in 1979. Both parties filed post-divorce motions regarding custody of their children. In 1985, the father filed a petition seeking, among other things, an increase in visitation, and the parental grandparents, also named in the father’s petition, sought to establish grandparent-visitation rights. However, the grandparents did not move to intervene. The trial court denied the petition insofar as it related to the father’s request for increased visitation, but granted the petition insofar as it sought to establish the grandparent’s visitation rights. The Supreme Court of Wyoming held that although an independent action or motion to intervene may be used to seek grandparent-visitation rights, the trial court lacked jurisdiction to enter an order granting a specifically claimed statutory right of visitation on behalf of nonparties to the action where the grandparents failed to file a motion to intervene.

In Alabama, the right to request grandparent visitation does not vest until certain events occur. The Legislature determined that intervention is to be used when a grandparent seeks visitation and there is a pending custody proceeding as set out in § 30 — 3—4.1(c). Otherwise, in order for a grandparent to seek visitation, an original action must be commenced if one of the parents has died, if the parents’ marriage has been dissolved, if the child has been abandoned by a parent, if the child was born out of wedlock, or if the parents are still married but one or both parents have used their parental authority to prohibit a child-grandparent relationship. § 30-3-4.1(b). Here, the grandparents are attempting to intervene as parties in a custody action where no proceeding regarding custody is currently before the court. Therefore, the trial court lacked the authority under § 30-3-4.1 to consider the grandparents’ request for visitation.

Even if we construed the grandparents’ motion to intervene as an original action, the law regarding grandparent visitation has changed since the trial court issued its order. On January 29, 2002, this court issued a two-judge opinion in L.B.S. v. L.M.S., 826 So.2d 178 (Ala.Civ.App.2002). Judge Thompson, writing the main opinion, in which Judge Pittman concurred, wrote that in order for Alabama’s grandparent-visitation statute to be applied constitutionally, a grandparent seeking visitation bears the burden of showing, by clear and convincing evidence, that the best interest of the child is served by awarding grandparent visitation. Judge Thompson wrote that although the factors the trial court should consider in determining whether to allow grandparent visitation set out in § 30-3-4.1(d) do not specifically mention the parent’s own determination regarding the child’s visitation with the grandparent, the factors do not exclude consideration of that determination as a factor. He concluded that the requirement in § 30 — 3—4.1(d)(6) that the court consider “other relevant factors” allows the court to give great weight, as it must, to a parent’s decision regarding such visitation in determining whether to grant a grandparent visitation.

Judge Murdock, in a special writing, in which Presiding Judge Yates concurred, wrote that before a court may substitute its decision for that of a fit custodial parent as to what, if any, grandparent visitation is in a child's overall best interest, there must be a threshold showing of substantial harm to the child caused by the parent’s decision not to allow grandparent visitation. That is, where a child has enjoyed a substantial relationship with the grandparent so that arbitrarily depriving the child of the relationship would cause serious psychological or emotional harm if the requested visitation by the grandparent is not granted, evidence of that harm must be shown, and this showing must be by clear and convincing evidence.

Presiding Judge Yates also wrote specially in L.B.S. v. L.M.S. to summarize the points on which a majority of this court was in agreement:

“[ A] majority of this court agrees: (1) that parents have a fundamental right to make decisions regarding the care, custody, and control of their children and because a determination of grandparent-visitation rights directly interferes with a parent’s fundamental right to rear his or her children, a strict-scrutiny analysis applies to such an infringement upon a fundamental right; (2) that there is a presumption that a fit parent acts in the best interest of his or her child and that this presumption places on the grandparent petitioning for visitation the burden of showing by clear and convincing evidence that the best interest of the child is served by awarding visitation if substantial harm to the child by not awarding visitation is shown; and (3) that this court should not invalidate the grandparent-visitation statute on constitutional grounds if by reasonable construction, it can be given a field of operation within constitutionally imposed limitations.”

826 So.2d at 187 (Yates, P.J., concurring in the judgment of reversal only).

It is unclear whether the trial court in this case concluded that there would be substantial harm to the child if grandparent visitation were denied. Indeed, there appears to be no showing of any harm at all to the child in this particular case because he has never been deprived of contact with the paternal grandparents. Both the father and the stepmother testified that they want the child to continue to visit with the grandparents but that the father disagrees with having set times for visitation.

The child was born in 1993. For approximately six months, the father, the mother, the mother’s daughter from a previous marriage, and the child lived with the grandparents because of financial difficulties the father and mother were having. After the father and the mother divorced and the father gained sole custody of the child, the grandparents would pick up the child from kindergarten about once every two weeks and the child would spend the night at the grandparents’ house. After the father purchased a new home and was planning to marry his current wife, a conflict arose between the father and the grandparents over the upcoming marriage. Even after the conflict, the father continued to let the child visit the grandparents. Although the frequency of visitation has decreased, this is in large part because the child is now in elementary school and is involved in organized sports and scouting. He now has a stepbrother and a stepsister, and the father wants to build a relationship with the new family. The court ordered that the parties attend counseling while the litigation was pending; they did so until the grandparents felt that the counselor was taking the father’s side. The grandparents and another son and his girlfriend live in a house that is very close to the father, and both the father and the stepmother testified that the grandparents are welcome to visit at any time.

Ordering scheduled visitation in a case where the grandparents have never been deniéd visitation with the child, where there is no indication in the record that the father would deprive his child of a relationship with the grandparents, where the grandmother described her relationship with the child as “normal grandparent involvement,” and where the grandparents’ time with child has decreased in large part because of the child’s and the parent’s schedules, goes beyond the constitutionally mandated limits for awarding grandparent visitation.

Based on the foregoing, we reverse the judgment and remand the case for the trial court to enter an order consistent with this opinion.

REVERSED AND REMANDED.

THOMPSON, PITTMAN, and MURDOCK, JJ., concur in the result.

CRAWLEY, J., dissents.

PITTMAN, Judge,

concurring in the result.

As the main opinion correctly notes, the “statutory right to seek grandparent visitation must be strictly construed.” In T.R.S.S. v. R.S., 828 So.2d 327 (Ala.Civ.App.2002), the father’s parental rights were terminated when the divorce judgment was entered; thus, there could be no “pending action” in which the grandparents could seek to intervene.

In this case, the mother and the father divorced in 1996, and the father gained custody of the child in 1997. Without a pending action before the court when the grandparents sought to intervene in 2000, I agree that the grandparents’ petition to intervene was proeedurally improper. The grandparents should have instead filed an original action for visitation pursuant to § 30-3-4.1(b), Ala.Code 1975.

That said, I cannot agree with the dicta in the main opinion commenting upon the substantive propriety of visitation in this case. After reviewing the record, I conclude that the trial court carefully reviewed the wishes of the parents and the grandparents, finding that it was “abundantly clear that the grandparents prior to the marriage of their son had much more of a parental involvement with the grandchild than after the marriage” of their son. The trial court concluded that from the time of the child’s birth in December 1993 until May 2000 when the father remanded, the grandparents were intimately involved in the child’s daily life. The trial court heard testimony from a child psychologist who concluded that a sharp decrease in contact between a child who has had a lifelong association with a set of grandparents and those grandparents can have a detrimental effect on the child.

The trial court issued a lengthy order, citing all six factors listed in § 30-3^4.1(d) as well as the potential harm to the child resulting from loss of regular contact with the grandparents and granting limited grandparent visitation (one overnight visit each month and one telephone call each week). Although the trial court’s judgment predates this court’s decision in L.B.S. v. L.M.S., 826 So.2d 178 (Ala.Civ.App.2002), that judgment addresses all the factors required by our decision in L.B.S. If the grandparents had filed an original action pursuant to § 30-3-4.1(b), the judgment granting visitation would be due to be affirmed; however, because they improperly sought intervention in an action that had concluded, I must concur in the result reached in the main opinion.

MURDOCK, Judge,

concurring in the result.

As discussed in more detail in the opinion of this court in R.S.C. v. J.B.C., 812 So.2d 361 (Ala.Civ.App.2001), and in my special writing in L.B.S. v. L.M.S., 826 So.2d 178, 187 (Ala.Civ.App.2002) (Murdock, J., concurring in the judgment of reversal only), there is a very real difference between requiring a showing of harm, or substantial harm, in the absence of requested grandparent visitation and a showing that such visitation would merely be in the “best interest” of a child. Section 30-3 — 4.1(b), Ala.Code 1975, requires only a showing that the requested court-ordered grandparent visitation would be in the “best interest” of the child. As a majority of this court agreed in R.S.C., a showing merely of the child’s “best interest” is not enough to satisfy the United States Constitution. 812 So.2d at 371.

The right of parents to make decisions concerning the care, custody, and control of their children is fundamental under the United States Constitution. See R.S.C., 812 So.2d at 366 (two judges concurring and Presiding Judge Yates concurring in the result and agreeing that “a parent’s right to make decisions regarding his or her child’s visitation with a nonparent is a fundamental liberty interest entitled to strict scrutiny under the Fourteenth Amendment,” 812 So.2d at 372). Under strict-scrutiny analysis, overriding that fundamental parental right requires, among other things, a showing of a compelling state interest. See id. As indicated in R.S.C., the state does not have a compelling interest in deciding what is merely in the “best interest” of a child. See R.S.C., 812 So.2d at 365-66 n. 1. It does have a compelling state interest in preventing “substantial harm” to children. See L.B.S. v. L.M.S., 826 So.2d at 187, 187 (Yates, P. J., concurring in the judgment of reversal only; Murdock, J., concurring in the judgment of reversal only). Thus, as I wrote in L.B.S.:

“In general, to fall within the more limited class of cases to which I believe [§ 30-3-4.1] constitutionally may be applied, there must be a threshold showing of substantial harm to the child if the requested visitation is not granted, and this showing must be made by clear and convincing evidence.”

826 So.2d at 188 (Murdock, J., concurring in the judgment of reversal only). It is only where that threshold showing is made that the statute may constitutionally be applied. In a case where such a threshold showing is made, the statute, by its terms, would then also require a showing by a preponderance of the evidence that the requested visitation would be in the “best interests” of the minor child. See § 30-3-4.1(b) and (d) (listing multiple factors to be considered by a trial court in determining a child’s “best interest”).

In other words, while § 30-3-4.1 attempts to open the door for courts to impose grandparent visitation against the wishes of a fit parent, the United States Constitution requires that that door be all but closed — remaining only slightly ajar for those egregious cases where it is “clear” that “substantial harm” will come to the child absent judicial intervention. It is only in the set of cases that fit within this description, and in which the trial court crafts a visitation scheme that is “the least intrusive means,” 826 So.2d at 192, by which to remedy the harm, that a majority of the judges on this court would be of the opinion that the statute could constitutionally be applied. See L.B.S., 826 So.2d at 187, 187 (Yates, P.J., concurring in the judgment of reversal only; Mur-dock, J., concurring in the judgment of reversal only).

The United States Constitution requires that the courts of this state afford a strong presumption in favor of a fit parent’s decisions as to his or her child’s associations. Based on my review the record in the present ease, I conclude that this is not a case requiring judicial intervention.

CRAWLEY, Judge,

dissenting.

I must respectfully dissent from the reversal of the order granting the grandparents visitation in this case. The trial court had no jurisdiction to rule on the grandparents’ petition because it was neither an intervention in a pending divorce proceeding nor an independent action. See Bert v. Bert, 154 Mich.App. 208, 397 N.W.2d 270 (1986). Therefore, I would not address the merits; I would instead dismiss the appeal.

      . Strict-scrutiny analysis also requires that a state's "interference with a fundamental right for the purpose of serving a compelling state interest must be done in a manner that is least restrictive of the fundamental right and most closely tailored to serve that compelling state interest.” L.B.S., 826 So.2d at 192 (Murdock, J., concurring in the judgment of reversal only) (citing Washington v. Glucksberg, 521 U.S. 702, 117 S.Ct. 2258, 138 L.Ed.2d 772 (1997), and Beagle v. Beagle, 678 So.2d 1271, 1275 (Fla.1996) (recognizing in the context of a challenge to Florida’s grandparent-visitation statute that the statute must meet a compelling state interest "through the use of the least intrusive means”)).

      . This "opening" may, for example, be wide enough to allow the application of § 30-3-4.1 to cases in which a grandparent has served for a significant period as a child’s de facto parent, so that depriving the child of a continuing relationship with that grandparent would cause serious psychological or emotional harm to the child. See L.B.S., 826 So.2d at 191-92 n. 8 and accompanying text (Ala.Civ.App.2002) (Murdock, J., concurring in the judgment of reversal only).

      . Judge Pittman in his special writing states that the trial court's judgment "addresses all the factors required by our decision in L.B.S.” I would note that only two of the judges of this court concurred in the opinion to which Judge Pittman refers. Neither Presiding Judge Yates nor I agreed that § 30-3-4.1 could be constitutionally applied merely on the basis of the multiple "best-interest” factors set out in that statute. To the contrary, Judge Yates and I both wrote separately to indicate that the application of this multiple-factor test under § 30-3-4.1 was inconsistent with our understanding of the United States Constitutional requirement that the fundamental right of a parent to the care, custody, and control of his child could be overridden only in the more limited class of cases where a threshold showing of substantial harm in the absence of the requested visitation could be shown by clear and convincing evidence. Judge Crawley is of the view that there is no set of cases to which § 30-3-4.1 may constitutionally be applied. See L.B.S., 826 So.2d at 199 (Crawley, J., dissenting).


source: Caselaw Access Project

author: PER CURIAM. CRAWLEY, Judge,

license: Public Domain

text:
    N.H. v. David VICKERS and John Norris.
    2010966.
    Court of Civil Appeals of Alabama.
    Feb. 21, 2003.
    Certiorari Denied May 16, 2003 Alabama Supreme Court 1021144.

      N.H., pro se.
    David Vickers, Montgomery, for appel-lee.
   PER CURIAM.

On August 15, 2001, N.H. filed a legal-malpractice action against David Vickers and John Norris, pursuant to § 6-5-570, AJa.Code 1975, alleging that they had rendered ineffective assistance in a criminal matter in which N.H. was the defendant. On April 4, 2002, the trial court entered an order holding that there had been no- service of process as to Norris; that Vickers had been served but had not answered N.H.’s complaint; and that, as to Vickers, the entry of a default judgment would be appropriate. The trial court ordered N.H. to effectuate proper service of process on Norris and to file a motion for a default judgment against Vickers by April 30, 2002, or the trial court would dismiss N.H.’s action. On April 30, 2002, Vickers answered N.H.’s complaint.

On May 2, 2002, the trial court entered a judgment dismissing N.H.’s complaint in its entirety because, the trial court found, N.H. had failed to file the motion for a default judgment against Vickers by April 30, 2002, and did not perfect service of process on Norris. On May 28, 2002, N.H. filed a postjudgment motion seeking a reinstatement of his action against both defendants. On May 28, 2002, N.H. also appealed the trial court’s judgment. The trial court did not rule on the post-judgment motion, and N.H.’s appeal was held in abeyance until the postjudgment motion was denied by operation of law. See Rule 4(a)(5), Ala. R.App. P.

The trial court did not receive ore tenus evidence, so the facts are taken from the parties’ pleadings and motions. Those facts are as follows. On October 9, 1998, N.H., who was already serving a 10-year prison sentence on a conviction for possession of a controlled substance, was indicted for first-degree robbery. On October 27, 1998, the trial court appointed Vickers, an attorney, to represent him in the first-degree robbery prosecution. N.H. was convicted of the first-degree robbery charge, and the trial court sentenced him to life imprisonment without the possibility of parole. N.H. appealed the conviction and the sentence; Norris represented N.H. in that appeal. The Court of Criminal Appeals affirmed N.H.’s conviction by an unpublished memorandum.

In his complaint, N.H. alleges that Vick-ers and Norris committed legal malpractice in representing him at trial and on appeal, respectively. According to the allegations set forth in his complaint, N.H. was an informant who made arranged narcotics purchases for a “vice and narcotics” unit. N.H. alleges that he was working as an informant when the robbery for which he was ultimately convicted took place. N.H. alleges that during the course of the first-degree-robbery trial Vickers did not present to the jury any evidence indicating that he was acting as an informant at the time of the robbery.

N.H. alleges that when he filed the appellate brief Norris had failed to preserve the claim of ineffective assistance of trial counsel in a postjudgment motion filed in the trial court. N.H. alleges that if Norris had properly preserved the claim then “the appellate court would have reversed [the] trial court’s judgment on appeal due to trial counsel's] ineffectiveness.” N.H. alleged that the two defendants’ legal malpractice resulted in his incarceration which, in turn, caused him to suffer emotional distress. He sought $2,400 in compensatory damages and $2,400 in punitive damages from each of Vickers and Norris.

According to N.H., on April 30, 2002, in compliance with the trial court’s April 4, 2002, order, he presented the prison’s mail clerk with a “Motion for Entry of Default” and a “Motion to Compel Interrogatories.” The record on appeal contains a certificate of mailing sent to the Montgomery courthouse c/o Melissa Rittenour and a certified-mail receipt sent to the Montgomery County courthouse. The address on both documents reads “251 S. Lawrence, Montgomery, AL., 36104,” with N.H. listed on the return address. The certificate and the receipt are marked with the Montgomery Circuit Court docket number. The receipt and the certificate are both dated April 30, 2002.

The record on appeal contains N.H.’s April 30, 2002, motion seeking a default judgment against Vickers. The record on appeal also contains two civil summons for service of process. According to the return-service information on the summons, on September 18, 2001, the summons addressed to Vickers was served by a deputy sheriff acting as a process server. The summons addressed to Norris does not have any return-service information indicating it was ever served.

On appeal, N.H.’s sole argument is that the trial court abused its discretion in dismissing his legal-malpractice claim because, he argues, the motion for a default judgment and the service of process should have been deemed timely filed.

In Houston v. Lack, 487 U.S. 266, 108 S.Ct. 2379, 101 L.Ed.2d 245 (1988), the United States Supreme Court held that a pro se prisoner-litigant’s notice of appeal was deemed filed on the day that notice was accepted by the prison mail system and not when it arrived at the court clerk’s office. This rule is referred to as the “mailbox rule” and was adopted by the Alabama Supreme Court in Ex parte Williams, 651 So.2d 569 (Ala.1992)(holding that a pro se prisoner’s petition for a writ of certiorari directed to the Alabama Court of Criminal Appeals under Rule 25, Ala. R.App. P., was timely filed on the date that the petition was delivered to the prison officials for mailing). The “mailbox rule” governs the incarcerated pro se litigant’s notice of appeal in both criminal and civil cases. See Ex parte Jones, 773 So.2d 989 (Ala.1998) (an inmate’s notice of appeal was deemed filed on the date he gave it to prison authorities for mailing); Veteto v. Yocum, 793 So.2d 814 (Ala.Civ.App.2001) (extending to civil cases the rule that a pro se prisoner-litigant’s notice of appeal is deemed filed when that document is delivered to a prison official for mailing). The “mailbox rule” was incorporated into Rule 4(c), Ala. R.App. P., which states, in part,

“If an inmate confined in an institution and proceeding pro se files a notice of appeal in either a civil or a criminal ease, the notice will be considered timely filed if it is deposited in the institution’s internal mail system on or before the last day for filing.”

(Emphasis added.)

N.H. filed a motion for default judgment pursuant to Rule 55, Ala. R. Civ. P. While the Alabama Rules of Appellate Procedure have been amended to include the “mailbox rule,” no equivalent rule can be found in the Alabama Rules of Civil Procedure. There is no precedential caselaw extending the “mailbox rule,” as set forth in Rule 4(c), Ala. R.App. P., to filings in civil proceedings made pursuant to the Alabama Rules of Civil Procedure. Therefore, we cannot say that the trial court erred when it dismissed N.H.’s motion for a default judgment as untimely. The trial court’s order dismissing N.H.’s motion for a default judgment as untimely is affirmed.

N.H. also argues that service of process was properly performed. Rule 4.1(b) and (c), Ala. R. Civ. P., permit several appropriate methods of service of process. Rule 4.1(b), Ala. R. Civ. P., allows a party to serve an opponent by a designated process server. A second method of service of process is found in Rule 4.1(c)(1), Ala. R. Civ. P., pursuant to which a plaintiff may request that the clerk of the court serve an opposing party by certified mail. Finally, upon a motion to the court alleging that the defendant to be served is avoiding service of process, Rule 4.3(c), Ala. R. Civ. P., permits service by a publication conforming to the requirements of Rule 4.1(d), Ala. R. Civ. P.

In order for the trial court to have personal jurisdiction over a defendant, the plaintiff must have perfected service of process by giving notice to the defendant of the action being brought. Ex parte Volkswagenwerk Aktiengesellschaft, 443 So.2d 880 (Ala.1983). “When the service of process on the defendant is contested as being improper or invalid, the burden of proof is on the plaintiff to prove that service of process was performed correctly and legally.” Ex parte Volkswagenwerk Aktiengesellschaft, 443 So.2d at 884.

N.H. argues that the summons in the record on appeal is sufficient to show that Norris had notice that an action was being brought against him. It is unclear both from N.H.’s brief on appeal and from the record on appeal why Norris never received the summons. However, the record clearly indicates that for a period of eight months Norris was not served. It is also clear that the trial court ordered N.H. on April 4, 2002, to perfect notice on Norris by April 30, 2002, or that N.H.’s action against Norris would be dismissed. While N.H. attempted to file a motion for a default judgment in accordance with that order, he did not again attempt to perfect service of process on Norris. The Alabama Rules of Civil Procedure permit several forms of service of process; N.H. attempted only one of those methods and attempted that method only once. After the trial court’s April 4, 2002, order, N.H. made no additional effort to perfect service on Norris. The fact that N.H. was proceeding pro se is irrelevant; it is well established that parties acting pro se should be held to the same standard as are parties represented by counsel. Boros v. Baxley, 621 So.2d 240 (Ala.1993). We cannot say the record on appeal is sufficient to overturn the trial court’s judgment. That portion of the May 2, 2002, order dismissing N.H.’s action against Norris is affirmed.

AFFIRMED.

THOMPSON, J., concurs.

YATES, P.J., and PITTMAN and MURDOCK, JJ., concur in the result.

CRAWLEY, J., concurs in part and dissents in part.

CRAWLEY, Judge,

concurring in part and dissenting in part.

Although I concur in affirming the dismissal of N.H.’s action against Norris because of N.H.’s failure to perfect service on Norris, I must dissent from affirming the dismissal of N.H.’s action against Vick-ers. The trial court ordered N.H. to file a motion for a default judgment within 30 days of its order, that is, by April 30, 2002. From what appears in the record, N.H., who is incarcerated, placed the motion in the prison mail system on April 30, 2002. Unlike the main opinion, I would hold that the “mailbox rule” set out in Houston v. Lack, 487 U.S. 266, 108 S.Ct. 2379, 101 L.Ed.2d 245 (1988), applies to N.H.’s filing of his motion for default judgment pursuant to Rule 55, Ala. R. Civ. P. See Ex parte Allen, 825 So.2d 271 (Ala.2002); Miles v. State, 845 So.2d 830 (Ala.Crim.App.2001).

Indeed, Ex parte Allen, which involved the issue whether an amendment to a Rule 32, Ala. R.Crim. P., petition was filed on the date it was placed in the prison mail system, held that the “mailbox rule” did not apply to the amendment because Rule 32 imposed no deadline on such amendments. Ex parte Allen, 825 So.2d at 273. However, our supreme court recognized that the Court of Criminal Appeals had already decided that the “mailbox rule” did apply to an amendment to a Rule 32 petition where the trial court had imposed a deadline for its filing. Ex parte Allen, 825 So.2d at 272-73 (citing Miles v. State, 845 So.2d 830 (Ala.Crim.App.2001)). In fact, the precise holding of Ex parte Allen states: “We hold that the mailbox rule does not apply to motions to amend Rule 32 petitions where the trial court has not established a deadline for filing the amendment.” Ex parte Allen, 825 So.2d at 273 (emphasis added).

A review of the Court of Criminal Appeals’ opinion in Allen v. State, 825 So.2d 264, 270 (Ala.Crim.App.2001), further supports my conclusion that the mailbox rule should be applied to this case. The court discussed the underlying rationale for the mailbox rule as first set out in Houston v. Lack — the inability of a pro se prisoner to monitor or ensure the timely delivery of documents within a given deadline. Allen v. State, 825 So.2d at 267 (quoting Houston v. Lack, 487 U.S. at 270-72, 108 S.Ct. at 2382-83). Then, explaining why it had concluded that Allen’s Rule 32 amendment was not filed on the date he placed it in the prison mail system when, in prior cases, Rule 32 amendments had been subject to the mailbox rule, the court stated:

“In both Miles and Talley [v. State, 802 So.2d 1106 (Ala.Crim.App.2001) ] the petitioners were faced with time deadlines, albeit imposed by the court rather than by a procedural rule or statute; thus, requiring the circuit courts in those cases to consider the amendments filed by the petitioners within the time imposed by the court was consistent with those cases cited above dealing with the initial filing of petitions, notices of appeal, and petitions for a writ of certiora-ri.”

Allen v. State, 825 So.2d at 270 (emphasis added). Accordingly, I would reverse the trial court’s dismissal of N.H.’s action against Vickers and remand this case to the trial court with instructions that it consider N.H.’s motion for a default judgment.


author: SHAW, Judge.

text:
    Tony Andra ROBINSON v. STATE of Alabama.
    CR-01-0584.
    Court of Criminal Appeals of Alabama.
    Jan. 31, 2003.
    Rehearing Denied March 14, 2003.
    Certiorari Denied May 16, 2003 Alabama Supreme Court 1021067.

      Artur G. Davis and Linda Hall, Birmingham, for appellant.
    William H. Pryor, Jr., atty. gen., and G. Ward Beeson III, asst. atty. gen., for ap-pellee.
   On Application for Rehearing

SHAW, Judge.

The opinion issued on October 25, 2002, is withdrawn, and the following opinion is substituted therefor.

The appellant, Tony Andra Robinson, was indicted for trafficking in marijuana, a violation of § 13A-12-231, Ala. Code 1975. Pursuant to a negotiated plea agreement with the State, he pleaded guilty to possession of marijuana in the first degree, a violation of § 13A. — 12—213(a)(1), Ala.Code 1975. He was sentenced, in accordance with the agreement, to 10 years’ imprisonment. The sentence was split, and Robinson was ordered to serve three years in prison followed by two years on supervised probation.

The record reflects that Robinson originally pleaded guilty on February 13, 2001. He appealed, and this Court affirmed his conviction and sentence in an unpublished memorandum issued on August 10, 2001. See Robinson v. State, (No. CR-00-1015) 837 So.2d 889 (Ala.Crim.App.2001)(table). In our unpublished memorandum, we held that Robinson had failed to expressly reserve the right to appeal several pretrial issues before he entered his plea and that, therefore, none of the claims he raised on appeal were properly before this Court for review. Robinson then filed a Rule 32, Ala.R.Crim.P., petition for postconviction relief, in which he alleged that he was denied the effective assistance of trial counsel because counsel did not expressly reserve the right to appeal the pretrial issues before Robinson pleaded guilty. A hearing was conducted on the petition on December 4, 2001, after which the trial court, with the State’s express agreement, granted Robinson’s petition and allowed him to withdraw his original plea and to enter a new plea — pursuant to the same plea agreement — this time expressly reserving the right to appeal six pretrial issues.

The record reflects the following facts. On February 17, 1998, United Parcel Service (“UPS”) notified the narcotics unit of the Bessemer Police Department of a suspicious package in its custody. The package was addressed to 5601 Avenue O in Lipscomb, in the Bessemer Division of Jefferson County; the return address was Microtech, a company in California. After investigation, Robert Michael Bellanca, an officer with the narcotics unit attached to the Multi-Agency Drug Enforcement Team (“MADET”), determined that Micro-tech was a fictitious company and that the return address listed on the package was, in fact, the address of another company. Officer Bellanca then brought a drug dog to the UPS warehouse, lined up several packages, including the suspicious package, and led the dog along the “lineup” of packages. The dog alerted on the suspicious package. Pursuant to UPS policy, UPS officials then opened the package and discovered approximately five pounds of marijuana.

The following day, after obtaining an anticipatory search warrant, an undercover officer delivered the package to the Lipscomb address. Wanda Washington answered the door at the residence and signed for the package. The police then executed the search warrant and questioned Washington. Washington explained that her boyfriend, Patrick Davis, had been expecting the package and, pursuant to a request by the police, she agreed to contact Davis about the package. When she spoke with Davis, Davis “told her not to open the package or have anything to do with the package, but to place it out on the porch, that it belonged to Tony and Tony would come and get the package.” (Second Supp. 7.)

The police placed the package on the porch and waited inside the residence for “Tony” to pick it up. Approximately an hour and a half later, Robinson’s codefen-dant, Calvin Parker, arrived at the residence and picked up the package. When the police came out of the house and attempted to arrest him, Parker dropped the package and fled. After a short chase, Parker was apprehended. Parker agreed to cooperate with the police; he told them that he was picking up the package for “Tony Robinson” and that he was supposed to telephone Robinson after he got the package and then deliver the package to Robinson at Ski Lodge Apartments. (Second Supp. 8.) According to Parker, Robinson would be in a green or brown Mazda automobile. As the police were making preparations for a controlled delivery to Robinson, Parker received a page from Robinson. Parker then telephoned Robinson and told him, “I’ve got it; I’m on my way with it.” (Second Supp. 10.) The police accompanied Parker in his van to the Ski Lodge Apartments in Homewood, in the Birmingham Division of Jefferson County. When Parker and the officers arrived, they saw Robinson sitting in a brown Mazda automobile at an Amoco gasoline station next to the apartments; Robinson “waved” at Parker. (Second Supp. 10.) Parker then “motioned” to Robinson to follow him to the rear of the apartment complex. (Second Supp. 10.) Robinson followed Parker to the rear of the complex, got out of his automobile, and approached Parker’s van. As Parker started to hand the package to Robinson through the driver’s side window of the van, Robinson noticed either the officers approaching the van or the officer in the back of the van, and instead of taking the package from Parker, he let it fall to the ground. Robinson was then arrested.

I.

Robinson first contends that the trial court erred in denying his oral motion to dismiss the indictment on the ground that venue was not proper in the Bessemer Division of Jefferson County. He asserts that venue was proper in the Birmingham Division — not the Bessemer Division — of Jefferson County, because, he says, the attempted delivery of the package to him occurred in Homewood, in the Birmingham Division.

“In a criminal prosecution the accused has a constitutional right to a trial ‘[in] the county or district in which the offense was committed.’ ” Williams v. State, 383 So.2d 547, 555 (Ala.Crim.App.1979), aff'd, 383 So.2d 564 (Ala.1980), quoting Ala. Const, of 1901, art. I, § 6. “Unless otherwise provided by law, the venue of all public offenses is in the county in which the offense was committed.” § 15-2-2, Ala. Code 1975.

Robinson was indicted for trafficking in marijuana on “February 17, 1998, while at or near 5601 Avenue 0, Lipscomb, Jefferson County.” (C. 2.) During his guilty plea, the State set out the factual basis for the plea as follows:

‘Tour Honor, at trial the State would expect the evidence to be that on or about February 17, 1998, at approximately 1420 hours at 5601 Avenue O in Lipscomb, Alabama, that being entirely within the Bessemer Division of Jefferson County, a package was delivered at the direction of Mr. Robinson. That package being picked up by a Calvin Parker and delivered from there to Mr. Robinson at the Ski Lodge Apartments, that being the Birmingham Division of Jefferson County.
“As the court is aware, that is one of the issues for appeal. But at any rate, the package was delivered to Parker at Robinson’s direction. Picked up by Parker and brought again at Robinson’s direction into the Birmingham Division to Ski Lodge Apartments where it was placed in the actual or constructive possession of Mr. Robinson.”

(R. 20.) Robinson did not challenge the factual basis for the plea in the trial court, nor does he challenge it on appeal. Rather, Robinson’s sole argument is that the facts of the case do not support the trial court’s conclusion that venue was proper in the Bessemer Division of Jefferson County. We disagree.

The facts clearly show that Robinson was in constructive possession of the marijuana that was delivered to the address in Lipscomb, which is located in the Bessemer Division of Jefferson County. As this Court noted in Wright v. State, 494 So.2d 936 (Ala.Crim.App.1986):

“Factually, cases have held that where the appellant never actually had possession of the drugs during the commission of the crime, he may nonetheless be guilty of aiding and abetting as well as having constructive possession of the drugs via a co-conspirator. United States v. Cannington, 729 F.2d 702 (11th Cir.1984); United States v. Raffone, 693 F.2d 1343 (11th Cir.1982). The jury could rely upon testimony that an appellant ‘had put up the money to conclude that he had aided and abetted the possession of the marijuana for its ultimate distribution.’ United States v. Cannington, supra, at 709. ‘Alternatively, the same evidence could support the conclusion that [appellant], operating through his “lieutenant,” had constructively possessed the marijuana.’ Ibid.”

494 So.2d at 937. The facts clearly linked Robinson to the package of marijuana and showed that Robinson had constructive possession of the marijuana, despite the fact that he was not physically at the Lipscomb address when the package first arrived. The factual basis for the plea was that the package of marijuana was delivered to the Lipscomb address at Robinson’s direction, and the evidence presented at the various pretrial hearings supported that conclusion. Wanda Washington’s boyfriend identified the package as being for a man named “Tony”; Calvin Parker told police that the package was for Robinson and that he had been instructed by Robinson to pick it up on his behalf and to deliver it to him; and, when Parker arrived at the delivery site, Robinson waved at him, followed him to the rear of the apartment complex, got out of his vehicle, and approached Parker.

The crime for which Robinson was charged (trafficking) and the crime to which Robinson pleaded guilty (possession) occurred at the Lipscomb address, in the Bessemer Division of Jefferson County. Therefore, venue was proper in that division; the trial court properly denied Robinson’s motion to dismiss the indictment on the ground of improper venue.

II.

Robinson next contends that the trial court erred in denying his oral motion to dismiss the indictment and for specific performance of an alleged agreement between him and the State in which the State allegedly agreed not to prosecute him. Specifically, Robinson argues that after he was arrested, he entered into an agreement with the State in which he agreed to provide assistance to the State in other cases in return for the State’s not prosecuting him on the present charge. According to Robinson, he provided assistance in other cases in compliance with the agreement and the State breached the agreement when it obtained the indictment against him.

The record indicates that after Robinson was arrested, he was taken to the Bessemer police station where he was advised of his Miranda rights. He invoked his rights and contacted his attorney, Linda Hall. The police then questioned Robinson in Hall’s presence. At one of the pretrial hearings on this issue, Officer Bellanea testified that Robinson indicated to him that he wanted to cooperate “[f]or consideration in sentencing” (R2.41) — that he would identify his source in California and the people he sold the marijuana to in the Birmingham area, and that he would work for the police doing “reverse drug transactions” with the people in Birmingham to whom he regularly sold drugs. (R2.42.) Officer Bellanea stated that he told Robinson that he would “receive credit for substantial assistance,” but that he never told Robinson what form the “credit” would take. (R2.42.) In addition, Officer Bellan-ca said that he never told Robinson that the charge against him would be dropped or reduced and that he did not indicate what sentence Robinson would receive in exchange for his cooperation.

Officer Bellanea then reduced the “cooperation” agreement to writing on a form provided by the MADET, entitled “Multi-Agency Drug Enforcement Team Cooperating Individual Agreement.” (Supp.3.) That agreement, which is contained in the record from Robinson’s first appeal, stated that Robinson would provide “sufficient information” for arrests in five cases; that the cooperation by Robinson “cannot and will not be allowed unless and until the District Attorney for Jefferson County has agreed to allow it”; that “either the District Attorney, law enforcement authorities involved, or [Robinson] can terminate any working relationship entered into pursuant to this request at any time”; and that “the District Attorney will neither agree to recommend to the sentencing court that any sentence imposed against [Robinson] be reduced or suspended, nor make such a recommendation unless and until he is convinced that the work or information [Robinson] supplies] pursuant to this request has led to the arrests of persons who, in his opinion exclusively, are more heavily involved in drug dealing than [Robinson].” (Supp.3.) The agreement did not state that Robinson would not be prosecuted on the present charge. The agreement was signed by Robinson and by Officer Bellan-ca, but was not signed, or approved, by the district attorney. The record from Robinson’s first appeal also contains a letter dated March 5, 1998, on the letterhead of the assistant district attorney for the Bessemer Division of Jefferson County, stating, in part: “In the event Tony A. Robinson satisfactorily completes his assistance to the Bessemer Police Department, no formal charges will be brought against him in the trafficking case now being investigated.” (Supp.4.) The letter included a space for the signature of a representative of the Jefferson County district attorney’s office, a representative of the Bessemer Police Department, and Robinson. However, the letter is signed only by Robinson. In addition, Officer Bellanca testified that he had never seen the letter before the pretrial hearing.

After executing the written “cooperation” agreement, Robinson told Officer Bellanca that, for the past six weeks, he had been receiving packages of marijuana similar to the one for which he was arrested and that he had received anywhere between 10 and 25 pounds per week. He stated that he sold the marijuana to approximately five people in the Birmingham area for approximately $700 to $750 per pound, and that he would then “wire what he owed to people in California,” approximately $500 per pound, and keep what was left. (Second Supp. 14.) After giving his statement, Robinson was released. Officer Bellanca testified that Robinson told him the name of his source in California that night, but that when he was asked to come in for follow-up interviews, Robinson would not come in, and he stopped returning Officer Bellanca’s telephone calls. According to Officer Bellanca, other than identifying his source in California and indicating that another UPS package was on its way from California and was due to arrive the following morning, Robinson did not participate in any investigations or any drug transactions with the MADET.

At the same pretrial hearing, Linda Hall, who was present when the agreement was entered into, testified as follows:

“[Robinson’s counsel]: When did your initial representation of Tony Robinson begin?
“[Hall]: At the initial arrest of this case. When he was initially represented.
“[Robinson’s counsel]: And would that have been February of 1998?
“[Hall]: Correct.
“[Robinson’s counsel]: And you were his attorney; is that correct?
“[Hall]: Correct.
“[Robinson’s counsel]: And after he was arrested, did he enter some kind of agreement to your knowledge with law enforcement?
“[Hall]: Yes, he did.
“[Robinson’s counsel]: And would you briefly tell me what [the MADET] agreement provides for?
“[Hall]: It in essence says Tony Robinson provides assistance to law enforcement concerning others involved in any type of trafficking, that with the [district attorney’s] permission that there will be credit given for substantial assistance.
“[Robinson’s counsel]: So, this is not an agreement between the DA’s office and Mr. Robinson, it’s an agreement between the drug task force and Mr. Robinson; is that correct?
“[Hall]: That’s correct.
“[Robinson’s counsel]: So, the date on the original cooperation agreement is February 1998. A month later you have a March '98 document; is that correct?
“[Hall]: Right.
“[Robinson’s counsel]: The February document is between Robinson and the Multi-Agency Drug Task Force. The March document is from the DA’s office; is that right?
“[Hall]: Right.
“[Robinson’s counsel]: Is th[e letter] signed by Mr. Robinson?
“[Hall]: Yes, it is.
“[Robinson’s counsel]: I recognize that it is not signed by anybody else. Let me ask you this. Is there any — who did you get the document from?
“[Hall]: The district attorney’s office in Bessemer.
“[Robinson’s counsel]: And did you request them to give you this document?
“[Hall]: Yes, I did.
“[Robinson’s counsel]: And do you recall the individual who gave you this document?
“[Hall]: This has been over two years ago.... I don’t recall his name.
“[Robinson’s counsel]: So, you were given this document by the assistant district attorney who at the time was working for the Bessemer [Division of Jefferson County]; is that right?
“[Hall]: Yes, I asked that the document be drawn up. It was drawn up by the district attorney’s office and presented to the DA that I was specifically told to go to. That 'particular DA says Mr. Bellanca has never informed me of any Multi-Agency Task Force agreement. Therefore, until I talk to him I cannot sign this document.
“[Robinson’s counsel]: All right. So the DA we can’t identify says he needed to get with Mr. Bellanca before he would actually sign the document.
“[Hall]: That’s correct.”

(R2.69-74.)(Emphasis added.) On cross-examination, Hall stated that she understood that the MADET agreement signed by Robinson would have “no validity unless there is an agreement made by the district attorney’s office.” (R2.83.) However, Hall also stated that, during the discussions leading to the agreement, Robinson was told that if he provided assistance “we [would] recommend that no charges be brought against you.” (R2.84.) Hall also testified that she was not aware that Robinson had failed to meet with the police when asked; that she was never contacted by the police regarding further cooperation by Robinson; and that she was never informed by the district attorney’s office that Robinson had not provided any assistance to law enforcement.

At a second hearing on this issue, Robinson testified that Officer Bellanca had promised him that no charges would be brought against him for any information he provided to the police in conjunction with the “cooperation” agreement; that he provided assistance to the police on three consecutive days following the day he executed the agreement; and that he understood that the agreement required him to provide information on five cases, but that he was never contacted by the police again and, therefore, did not provide information on the five cases.

Citing Ex parte Yarber, 437 So.2d 1330 (Ala.1983), Robinson argues that the State should be required to comply with the alleged agreement not to prosecute him and that the indictment against him should be dismissed. He maintains that he cooperated fully with the police and that the State faded to prove at any of the pretrial hearings that he did not comply with his part of the agreement. In Ex parte Yarber, the Alabama Supreme Court stated:

“Negotiated pleas ... serve a valuable role in the criminal justice system. If the integrity of that role is to be maintained, certainty must prevail. The state need not enter into a plea agreement. ... However, once the state chooses to make an agreement, it should not be allowed to repudiate that agreement with impunity.”

437 So.2d at 1335.

In Madison v. State, 561 So.2d 1123 (Ala.Crim.App.1990), a case factually similar to the present case, this Court distinguished Ex parte Yarber on the ground that no agreement actually existed between the appellant and the State:

“In the present case, the order of the trial court denying the appellant’s motion does not specifically address the existence of a plea agreement. Rather, the court held that if an agreement did exist, it was not breached by the State. In this Court’s opinion, however, the record clearly establishes that there was no such agreement.
“In Cooper v. United States, 594 F.2d 12 (4th Cir.1979), the Court set forth the conditions under which the government could not withdraw from a plea bargain agreement:
“ ‘Within this general constitutional framework of substantive due process, here given an added dimension by the necessary implication of the right to effective assistance of counsel, we conclude that the defendant’s constitutional rights were here violated by the government’s failure to honor its plea proposal. In so holding, we emphasize those factual elements most crucial to our finding of right and violation in order to confine our holding as narrowly as we may for decision. Here [1] the proposal was specific and unambiguous in form, and [2] was made without any reservation related to a superior’s approval or otherwise; [3] its content was reasonable in context; [4] it was made by a prosecutor with apparent (and probably actual) authority at the time; [5] it was communicated promptly to the defendant so that no question of staleness was involved; [6] the defendant assented promptly and unequivocally to its terms, indicated his assent to his counsel, and was entitled so far as the record shows to assume that its communication to the government would consummate the plea agreement; defense counsel did in fact within a matter of a few hours communicate defendant’s acceptance to the government, by sheer fortuity being told of the government’s “withdrawal” before he could vocalize his client’s “acceptance”; and finally, [7] the reason for the attempted withdrawal had nothing to do with extenuating circumstances affecting the government’s or any public interest that were unknown when the proposal was extended.... ’
“Id. at 19 (emphasis supplied [in Madison ]).
“Without addressing the existence of the remaining elements, it is clear to this Court that the ‘agreement’ in the present case fails to satisfy elements (2) and (4) of the test established in Cooper, supra. Any understanding that may have existed in this case was between Corporals Bear and Carr and the appellant. The record is devoid of any evidence that the prosecutor consented to, or was even aware of, this ‘agreement.’ ”

561 So.2d at 1125-26.

Similarly, here, contrary to Robinson’s contention, the record shows that there was no agreement by the district attorney’s office not to prosecute him. Although the record indicates that Robinson entered into a “cooperation” agreement, that agreement was between Robinson and Officer Bellanca of the MADET and was subject to the approval of the district attorney’s office. However, nothing in the record indicates that the district attorney’s office consented to the agreement. The MADET agreement was never signed by the district attorney or by a representative of the district attorney. Robinson’s own counsel testified that when she went to the district attorney’s office in Bessemer and requested a letter indicating that the district attorney would not bring formal charges against Robinson if he cooperated in other cases, the assistant district attorney she spoke to told her that he knew nothing about the MADET agreement signed by Robinson and Officer Bellanca and that he could not agree to anything or sign the letter she had requested that he draft — and that he did, in fact, draft — until he spoke with Officer Bellanca. Neither the MADET agreement nor the letter drafted at Robinson’s counsel’s request contain the signature or approval of the district attorney. Because there was no agreement between Robinson and the district attorney’s office, there was nothing the State could have breached and nothing that could have been enforced. Therefore, the trial court properly denied Robinson’s request to enforce the alleged agreement and his request to dismiss the indictment against him.

III.

Robinson also contends that the trial court erred in denying his motion to suppress the statement he made to police because, he says, he made the statement only because he had been promised that no charges would be filed against him and that nothing he said would be used against him.

At the pretrial hearing on his motion, Robinson testified that he spoke with Officer Bellanca after his arrest, in the presence of his attorney, Linda Hall, and that he was told that if he cooperated and testified against his source in California and provided information in five other cases, no charges would be filed against him and nothing he said would be used against him. He stated that he signed a “cooperation” agreement with the MADET with respect to his cooperation and that he then made an incriminating statement to police, after which he was released. He stated that subsequent to his arrest he was willing to cooperate with the police, but that they never contacted him again.

At the pretrial hearing on Robinson’s motion to enforce the alleged agreement between him and the State (see Part II of this opinion), which was held before the hearing on his motion to suppress, Robinson’s attorney, Linda Hall, who was present during Robinson’s questioning, testified that Robinson was told that “[a]ny information that you provide as it relates to the present charges will not be used against you but will be used against the source out of California” (R2. 84), and that if he cooperated, “we [would] recommend that no charges be brought against you.” (R2. 84.) However, as noted previously, Officer Bellanca testified that he told Robinson that he would “receive credit for substantial assistance,” but that he never told Robinson what form the “credit” would take. (R2.42.) In addition, Officer Bellanca said that he never told Robinson that the charge against him would be dropped or even reduced, nor did he indicate what sentence Robinson would receive in exchange for his cooperation. At the conclusion of the suppression hearing, the trial court denied Robinson’s motion to suppress, finding that his confession was voluntary.

We recognize that “[a] direct and substantial promise to drop other cases against the defendant is sufficient to require exclusion of a confession obtained by that promise.” Rutledge v. State, 651 So.2d 1141, 1144 (Ala.Crim.App.1994). However, “[w]here the trial court finds on conflicting evidence that a confession was voluntarily made, such finding will not be disturbed on appeal unless it appears contrary to the great weight of evidence or is manifestly wrong.” Burks v. State, 353 So.2d 539, 542 (Ala.Crim.App.1977).

“ ‘[Conflicting evidence given at [a] suppression hearing presents a credibility choice for the trial court.’ Atwell v. State, 594 So.2d 202, 212 (Ala.Cr.App.1991), cert. denied, 594 So.2d 214 (Ala.1992). ‘[A] trial court’s ruling based upon conflicting evidence given at a suppression hearing is binding on this Court, and is not to be reversed absent a clear abuse of discretion.’ Jackson v. State, 589 So.2d 781, 784 (Ala.Cr.App.1991) (citations omitted).”

Rutledge, 651 So.2d at 1144-45.

“Although a promise of leniency or reward undermines the voluntariness of a confession, see Holmes v. State, 598 So.2d 24 (Ala.Cr.App.1992); Campbell v. State, 574 So.2d 937 (Ala.Cr.App.1990), when the evidence regarding whether a promise was made is in conflict, the trial court must make a credibility determination. ‘Absent clear error, the [circuit] court’s credibility choices at suppression hearings are binding on this court.’ Walker v. State, 551 So.2d 449, 451 (Ala.Cr.App.1989). The standard on review of conflicting evidence at a motion to suppress a confession is whether the trial court’s finding was ‘manifestly contrary to the great weight of the evidence.’ Ex parte Matthews, 601 So.2d 52 (Ala.1992), cert. denied, [505] U.S. [1206], 112 S.Ct. 2996, 120 L.Ed.2d 872 (1992). See also Ex parte Singleton, 465 So.2d 443, 445 (Ala.1985) (whether the finding was ‘palpably contrary to the weight of the evidence’).”

Thompson v. State, 611 So.2d 476, 478 (Ala.Crim.App.1992).

“Moreover, we note that the mere promise to make cooperation known to law enforcement authorities, as opposed to a direct promise of a reduced sentence, generally is not considered an illegal inducement. In United States v. Nash, 910 F.2d 749, 752-53 (11th Cir.1990), the United States Court of Appeals for the Eleventh Circuit held:
“ “We find that the district court was not clearly erroneous in accepting [the officer’s] testimony that he only promised to make [the defendant’s] cooperation known to the United States Attorney’s office and gave no guarantee of a reduced sentence. Although [the officer] told [the defendant] that cooperating defendants generally “fared better time-wise,” this statement did not amount to an illegal inducement: “telling the [defendant] in a noncoer-cive manner of the realistically expected penalties and encouraging [him] to tell the truth is no more than affording [him] the chance to make an informed decision with respect to [his] cooperation with the government.” ’
“(Quoting United States v. Ballard, 586 F.2d 1060, 1063 (5th Cir.1978)). Accord United States v. Levy, 955 F.2d 1098, 1105 (7th Cir.1992)(holding that federal agent’s indication to defendant that his cooperation would be reported to the United States Attorney did not make defendant’s confession involuntary); United States v. Meirovitz, 918 F.2d 1376, 1380 (8th Cir.1990)(holding that confession was voluntary although agents had promised to inform prosecutor of defendant’s cooperation); United States v. Guerrero, 847 F.2d 1363 (9th Cir.1988) (holding that agent’s promise to inform prosecutor of defendant’s cooperation does not render a subsequent confession involuntary); United States v. Baldacchino, 762 F.2d 170, 179 (1st Cir.1985) (holding that an officer’s promise to bring defendant’s cooperation to the attention of the prosecutor did not make confession involuntary).”

McLeod v. State, 718 So.2d 727, 730-31 n. 4 (Ala.1998).

Here, although it was undisputed that Officer Bellanca offered Robinson “credit” in return for Robinson’s cooperation, the evidence was disputed as to whether there were any specific promises as to the form the “credit” would take. Officer Bellanca testified that no promises were made as to what “credit” Robinson would receive for his cooperation; Robinson testified that he was promised that no charges would be filed against him in the present case. Based on the conflicting evidence, we cannot say that the trial court erred in denying Robinson’s motion to suppress his confession. See, e.g., Williams v. State, 795 So.2d 753 (Ala.Crim.App.1999), aff'd, 795 So.2d 785 (Ala.2001), and Davis v. State, 728 So.2d 192 (Ala.Crim.App.1997).

IV.

Fourth, Robinson contends that the trial court erred in denying his motion to dismiss the indictment on the ground that the evidence presented to the grand jury was insufficient to support the indictment.

“ ‘ “When it appears that witnesses were examined by the grand jury, or that the grand jury had before them documentary evidence, no inquiry into the sufficiency of the evidence is indulged.” Loyd v. State, 279 Ala. 447, 448, 186 So.2d 731 (1966).’
“Coral v. State, 551 So.2d 1181, 1182 (Ala.Cr.App.1989).”

Tomlin v. State, 695 So.2d 157, 164 (Ala.Crim.App.1996).

The indictment shows that two witnesses, Officer Bellanca and forensic scientist Greg Risch, testified before the grand jury. (C. 3.) Therefore, no inquiry into the sufficiency of the evidence is permitted. The trial court did not err in denying Robinson’s motion to dismiss.

We note that Robinson also contends that the trial court erred in denying his request for discovery of the grand jury proceedings. However, Robinson did not expressly reserve the right to appeal this claim when he entered his guilty plea. Therefore, this claim is not properly before this Court for review.

Moreover, even if this claim were properly before this Court for review, it has no merit. It appears that Robinson requested discovery for the purpose of proving that the evidence was insufficient to sustain the indictment. However, because inquiry into the sufficiency of the evidence presented at the grand jury proceedings is not proper in light of the indictment affirmatively showing that two witnesses testified before the grand jury, discovery of the grand jury proceedings for this purpose was likewise not proper. In addition, we note that at one of the pretrial hearings on this issue, one of Robinson’s counsel stated that he had been told by the prosecutor that the grand jury proceedings had not been recorded. In addressing an identical issue in Steward v. State, 55 Ala.App. 238, 314 So.2d 313 (Ala.Crim.App.1975), this Court stated:

“The right to examine the grand jury testimony has been settled in the Alabama Courts, where it has been held a motion to require the State to produce testimony presented to the grand jury which returned an indictment was properly denied where the testimony was not preserved in writing and was not available. Sparks v. State, 46 Ala.App. 357, 242 So.2d 403 [ (1970) ].
“There is no law requiring the recording of testimony before a grand jury in Alabama. The long time rule, sanctioned by our courts, is that the proceedings before a grand jury are essentially secret. This matter is thoroughly elucidated in the recent case of State ex rel. Baxley v. Strawbridge, 52 Ala.App. 685, 296 So.2d 779 [ (1974) ], in an opinion by Presiding Judge Cates of this court.
“No transcription or other record of the grand jury proceedings was kept in the instant case.
“This motion was, therefore, properly overruled by the court.”

55 Ala.App. at 240-41, 314 So.2d at 315. See also Stallworth v. State, [Ms. CR-98-0366, September 28, 2001] - So.2d - (Ala.Crim.App.2001), and Hardy v. State, 804 So.2d 247 (Ala.Crim.App.1999), aff'd, 804 So.2d 298 (Ala.2000). Because the record indicates that the grand jury proceedings were not recorded, there was clearly no error in the trial court’s denying Robinson’s motion for discovery of the grand jury proceedings.

V.

Next, Robinson contends that the trial court should have suppressed the marijuana evidence because, he says, the State failed to prove the chain of custody of that evidence.

The record indicates that Robinson requested written documentation of the chain of custody of the. marijuana. At one of the pretrial hearings, Robinson indicated to the court that the State had not provided such documentation. In response, the prosecutor stated that he did not know whether such a document existed, but that, if it did, it had been produced with all of the other discovery materials. The following then occurred:

“[Robinson’s counsel]: If there is not a chain of custody of handling of these narcotics, then we file a motion to dismiss this case against my client.
“THE COURT: I think that would probably be a proper motion to make at the proper time. I think it’s a little premature at this time.
“[Robinson’s counsel]: Yes, sir, Judge. Are we to understand that the district attorney does not have a chain of custody. Mike Bellanea does not have a chain of custody.
“THE COURT: If I understand correctly, [the prosecutor] is saying he doesn’t at this time.
“[Prosecutor]: Judge, I’m saying if there is a piece of paper that says A gave it to B gave it to C gave it to D, in that format, then they have it. If no piece of paper in that format exists, then they don’t have it. That doesn’t mean there is no evidence of a chain of custody/ That is absurd to suggest that.
“[Robinson’s counsel]: Is there written evidence of a chain of custody?
“[Prosecutor]: If you have it, it exists.”

(R2.270-71.) At Robinson’s original guilty-plea proceedings, on February 13, 2001, after he had pleaded guilty, Robinson again raised the issue of the documentation for the chain of custody. The following exchange occurred:

“[Robinson’s counsel]: Our final request for purposes of preserving this for appeal, we raised ... last Friday, as to whether or not there was an official chain of custody and paper. Of course, the district attorney had until eleven o’clock to produce that and he didn’t produce that. And we would say the State doesn’t have a ease.
“THE COURT: And correct me if I’m wrong. The question of the motion was to produce a written memorandum as to the .chain of custody, not to provide testimony as to the chain of custody, but to produce a memorandum. And I denied that motion.... ”

(R2.299.)(Emphasis added.)

The only issue Robinson raised in the trial court was the State’s failure to produce a document detailing the chain of custody of the marijuana evidence. Robinson never requested that the State present testimony as to its chain of custody, and he never moved to suppress the marijuana evidence; in fact, other than a cursory motion to dismiss, Robinson never even alleged, as he now does on appeal, that there was no chain of custody. Although Robinson expressly reserved the right to appeal the issue whether the chain of custody was proven at the time he entered his guilty plea, the record reflects that Robinson never moved to suppress the marijuana evidence on the ground that the State failed to prove the chain of custody before he entered his plea. Robinson cannot expressly reserve the right to appeal a pretrial issue that was, in fact, never presented to the trial court before trial.

Consequently, the issue now presented by Robinson is not properly before this Court for review. “An issue raised for the first time on appeal is not subject to appellate review because it has not been properly preserved and presented.” Pate v. State, 601 So.2d 210, 213 (Ala.Crim.App.1992). Furthermore, “[t]he statement of specific grounds of objection waives all grounds not specified, and the trial court will not be put in error on grounds not assigned at trial.” Ex parte Frith, 526 So.2d 880, 882 (Ala.1987). Whether the marijuana evidence should have been suppressed because there was no chain of custody is not properly before this Court for review.

VI.

Finally, Robinson contends that he was denied equal protection of the law when the State failed to offer him the same plea bargain that it offered to his codefendant, Calvin Parker. Specifically, Robinson argues that he was offered a 10-year sentence, which was split so that he would serve 3 years, while Parker was offered a 10-year sentence, which was split so that he would serve only 1 year, and that “this disparity of sentences was the product of vindictiveness on the part of the state” due to his pretrial attempts to have the charge against him dismissed. (Robinson’s brief at p. 19.)

The record reveals that Robinson orally raised this issue during the pretrial hearing on his written motion requesting the State to reveal any deals, promises, or inducements offered to witnesses. When the State indicated that it had offered Parker a 10-year sentence, which had been split so that Parker would serve 1 year, Robinson argued that, under the Equal Protection Clause, the prosecutor must offer him the same deal it had offered Parker. In response, the trial court told Robinson that the equal-protection issue was not a part of the written motion currently before the court, and would not be considered, but that he could file an additional motion at a later time if he so chose. Specifically, the court said that it would “give [Robinson] leave to file the additional' motion that [he] mentioned relative to the equity ... about the ... offer of sentencing.” (R2.258-59.) The trial court never ruled on Robinson’s oral request, and the record reflects that Robinson did not file any additional written motion as to this issue. However, at the conclusion of the first guilty-plea proceeding on February 13, 2001, Robinson again orally asserted that he had been denied equal protection of the laws when the State did not offer him the same plea bargain it had offered Parker; this time, the trial court expressly denied the motion.

“The basic tenet of the equal protection clause is not that all persons must be treated equally, but rather that all persons similarly situated must be treated equally.” Smith v. State, 518 So.2d 174, 176 (Ala.Crim.App.1987). “ ‘[S]eparate treatment of defendants does not violate any constitutional guarantee of equal protection so long as that treatment is reasonable and founded on a rational basis.’ ” Carroll v. State, 599 So.2d 1243, 1244 (Ala.Crim.App.1992), quoting Wheatt v. State, 410 So.2d 479, 484 (Ala.Crim.App.1982). “ ‘[A] defendant who alleges an equal protection violation has the burden of proving “the existence of purposeful discrimination.” ’ ” Facion v. State, 627 So.2d 1144, 1145 (Ala.Crim.App.1993), quoting McCleskey v. Kemp, 481 U.S. 279, 292, 107 S.Ct. 1756, 95 L.Ed.2d 262 (1987). Robinson’s equal-protection argument is six sentences in length, and the only case Robinson cites deals with due process, not equal protection. Other than a bare allegation of pros-ecutorial “vindictiveness,” Robinson has not shown the existence of purposeful discrimination by the prosecutor, and he has not even alleged, much less shown, that he and Parker were similarly situated, and the record clearly shows they were not. Therefore, Robinson has failed to demonstrate an equal-protection violation.

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

OPINION OF OCTOBER 25, 2002, WITHDRAWN; OPINION SUBSTITUTED; APPLICATION OVERRULED; AFFIRMED.

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

      . These facts are taken from the testimony and argument at the various hearings on Robinson’s pretrial motions, transcripts of which are contained in the record from Robinson’s first appeal, and from the testimony taken at a forfeiture hearing, a transcript of which is also contained in the record from Robinson's first appeal, and upon which Robinson relied heavily in arguing many of his pretrial motions. See, e.g., Nettles v. State, 731 So.2d 626 (Ala.Crim.App.1998)(recognizmg that this Court may take judicial notice of its own records).

      . References to the record on appeal in the present case will be designated as "R.” and "C.” References to the record from Robinson's first appeal will be designated as follows: "C2."; “R2.”; "Supp.”; and "Second Supp.”

      . The record reflects that the number on the page was a cellular telephone registered to a female living in Fairfield; however, the telephone was found on Robinson's person when he was arrested.

      . Robinson orally moved to dismiss the indictment on this ground during the hearing on one of his written pretrial motions. It also appears from the record that Robinson subsequently filed a written motion to dismiss on the same ground; however, that motion is not contained in either the record in the present case or the record from Robinson's first appeal.

      .Robinson also argues that venue was not proper in the Bessemer Division because, he says, "[tjhere is no evidence that the drugs were to be distributed in the” Bessemer Division. (Robinson's brief at p. 8.) We hasten to point out, however, that Robinson was not charged with, nor did he plead guilty to, distribution, and that distribution of the marijuana was not an element of either the crime with which he was charged (trafficking) or the crime to which he pleaded guilty (possession). Therefore, where the marijuana was ultimately to be distributed is irrelevant to this issue.

      . The two divisions of Jefferson County are treated as two separate counties for purposes of venue. See Ex parte Jackson, 516 So.2d 768 (Ala.1986), and Agee v. State, 465 So.2d 1196 (Ala.Crim.App.1984).

      . Robinson did challenge the factual basis when he originally pleaded guilty on February 13, 2001; however, he did not do so the second time he pleaded guilty.

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

      . Robinson testified at the pretrial hearing on his motion to suppress his statement (see Part III of this opinion) that he was never advised of his Miranda rights.

      . Robinson actually styled his motion as a motion in limine.

      . In Ex parte Price, 725 So.2d 1063 (Ala.1998), the Alabama Supreme Court stated:
      “Price has cited no legal authority or persuasive reason in support of a rule requiring this Court to consider only the evidence presented to the trial court at the pretrial suppression hearing. Accordingly, we will apply the long-standing rule that, in considering whether the trial court properly overruled a defendant's motion to suppress an extrajudicial confession or other inculpato-ry statement, a reviewing court may consider both the evidence presented at the pretrial suppression hearing and the evidence presented at trial. See, e.g., Henry v. State, 468 So.2d 896, 899 (Ala.Crim.App.1984); United States v. Smith, 527 F.2d 692, 694 (10th Cir.1975) ('In passing on the correctness of the trial court’s denial of [the defendant's] motion to suppress, we are not limited to a consideration of just the evidence introduced at the hearing on the motion to suppress. In addition thereto, we may also consider the evidence adduced at trial, even though such may not have been presented at the pretrial suppression hearing.’).”
      725 So.2d at 1067-68 (footnote omitted). If an appellate court can consider evidence presented after the hearing on a pretrial motion to suppress a confession, i.e., evidence presented at trial, in determining whether a confession was voluntary, it is logical that we may also consider evidence presented before the hearing on the pretrial motion to suppress, i.e., evidence presented at another pretrial hearing.


text:
    Carl E. FALLIN v. CITY OF HUNTSVILLE.
    CR-01-0193.
    Court of Criminal Appeals of Alabama.
    Jan. 31, 2003.
    Rehearing Denied March 14, 2003.
    Certiorari Denied May 16, 2003 Alabama Supreme Court 1021024.

      Charles H. Pullen, Huntsville, for appellant.
    Walter A. Record III, Huntsville, for appellee.
   SHAW, Judge.

Carl E. Fallin was convicted in the municipal court of the City of Huntsville (“the City”) of third-degree harassment, a violation of § 13A-ll-8(a)(l)(b), Ala.Code 1975, as adopted for enforcement by the City of Huntsville, Ordinance § 18-1 of the Huntsville Code of Ordinances 1982. Fal-lin appealed that conviction to the Circuit Court of Madison County. Following a trial de novo, Fallin was again convicted of harassment in the third degree, and he was sentenced to three months in the Huntsville city jail. That sentence was suspended for one year: Fallin was ordered to complete 240 hours of community service at 20 hours per month in the Madison County Work Release Program; was ordered to pay various fines and court costs; and was ordered to serve the balance of his sentence on supervised probation.

The evidence adduced at trial indicated the following. On April 9, 2001, Fallin met with James Embry, the principal of Lee High School in Huntsville, to discuss Fal-lin’s objections to the process used to select varsity cheerleaders. When Embry refused to change the process to allow Fallin’s daughters to make the varsity cheerleading squad, Fallin told him that “the blood would be on [his] hands.” (R. 48.) Later that same day, Fallin went to the school gymnasium, where cheerleading coach Gail Johnson was conducting a get-acquainted meeting on the balcony. Fal-lin’s younger daughter announced that she was quitting cheerleading because of the way she and her sister had been treated. After his daughter’s announcement, Fallin began yelling and pointing at Johnson. He said that he was taking both of his daughters out of cheerleading and that the coach was crazy and dangerous to children. He took three or four steps toward Johnson and the cheerleaders, and they backed away. He then made the following statements to the coach: “This isn’t over”; “I’ll have my foot up your butt”; and “I’ll be on you like white on rice.” (R. 154.) Fallin left after the mother of one of the other cheerleaders told him to leave the gymnasium. Fallin testified that he had meant by his statements that the principal was responsible for any harm to the children and that he intended to seek additional remedies from school management regarding the cheerleading situation. Fal-lin was charged with third-degree harassment.

I.

Fallin first contends that the trial court erred in denying his motion for a judgment of acquittal, made at the close of the City’s case. Specifically, he argues that the motion should have been granted because, he says, his statements did not constitute “fighting words” and, therefore, he claimed, could not support a conviction for harassment.

The complaint charged Fallin with violating “city ordinance 18-1 adopting [C]ode of Alabama, [§] 13A-ll-8(a)(l)(b).” (C. 5.) Section 13A-11-8, Ala.Code 1975, provides, in pertinent part:

“(a)(1) Harassment. A person commits the crime of harassment if, with intent to harass, annoy or alarm another person, he or she either:
“a. Strikes, shoves, kicks, or otherwise touches a person or subjects him or her to physical contact.
“b. Directs abusive or obscene language or makes an obscene gesture towards another person.”

Historically, this Court has held that the “abusive or obscene language” provision of Alabama’s disorderly conduct and harassment statutes was limited to “fighting words.” See, e.g., Conkle v. State, 677 So.2d 1211 (Ala.Crim.App.1995); R.I.T. v. State, 675 So.2d 97 (Ala.Crim.App.1995); B.E.S. v. State, 629 So.2d 761 (Ala.Crim.App.1993); Robinson v. State, 615 So.2d 112 (Ala.Crim.App.1992). “[Fighting words] by their very utterance provoke a swift physical retaliation and incite an immediate breach of the peace.” Skelton v. City of Birmingham, 342 So.2d 933, 936-37 (Ala.Crim.App.), remanded on other grounds, 342 So.2d 937 (Ala.1976). “ ‘The test is what men of common intelligence would understand would be words likely to cause an average addressee to fight.’ ” Chaplinsky v. New Hampshire, 315 U.S. 568, 573, 62 S.Ct. 766, 86 L.Ed. 1031 (1942), quoting State v. Chaplinsky, 91 N.H. 310, 320, 18 A.2d 754, 762 (1941). The words “ ‘must be sufficiently offensive to raise a probability of physical retaliation by the addressee or someone acting in his interest.’ ” B.E.S., 629 So.2d at 765, quoting A.L.I. Model Penal Code § 250.4 at 365-66 (1980). However, each of those cases, and indeed, nearly all of the published cases in Alabama, were authored before the Alabama Legislature’s 1996 amendment to the harassment statute.

The 1996 amendment added subsection (a)(2) to § 13A-11-8, Ala.Code 1975. Section 13A-11-8(a)(2) provides that “[f]or purposes of this section, harassment shall include a threat, verbal or nonverbal, made with the intent to carry out the threat, that would cause a reasonable person who is the target of the threat to fear for his or her safety.” (Emphasis added.)

In Conkle, this Court, with Presiding Judge Taylor and Judge Long filing special concurrences, Judge Patterson concurring in the result, and Judge Cobb dissenting, stated that the words “I’m going to get you, little girl. You’re as good as dead,” spoken by the appellant from his car as he drove past the complainant, did not constitute harassment. Conkle, 677 So.2d at 1213. However, that case was decided before the 1996 amendment of the harassment statute by the Alabama Legislature.

Indeed, Judge McMillan, who authored the opinion of the Court in Conkle, stated, “under current law in Alabama, a verbal threat alone, in circumstances that would not cause public disorder or unrest by being likely to start a fight, does not constitute an offense.” Conkle, 677 So.2d at 1219 (emphasis added). Judge Long, in his special concurrence, stated:

“I am troubled that our laws will countenance an intentional threat that places another person in reasonable fear for his or her safety. It seems peculiar to me that while our anti-stalking law recognizes the real harm caused by a credible threat when made in conjunction with repeated following or harassing behavior, there is no law comprehending the harm caused by a credible face-to-face threat standing alone. See § 13A-6-90 et seq., Ala.Code 1975. Even more peculiar, under § 13A-8-ll(b)(l), a communication by telephone or mail, made with the intent to alarm another person, is considered a criminal act. Thus, apparently it is illegal to threaten someone over the telephone, but perfectly legal to threaten to kill someone in person. This court, however, does not write the laws.”

677 So.2d at 1219. Judge Cobb, in her dissent in Conkle, wrote, “If, upon further review, the majority remains successful, then the question of affording our citizenry protection from substantial threats of violence should be addressed by the Alabama Legislature as has been done in other states.” Conkle, 677 So.2d at 1220.

We conclude that the Alabama Legislature, in enacting the 1996 amendment to the harassment statute, appears to have done exactly as several members of this Court in Conkle prevailed on it to do. The Alabama Supreme Court recognized this in Ex parte N.W., 748 So.2d 190, 193 (Ala.1999), as a part of a discussion concerning whether harassment was a lesser offense to the offense of menacing. In a footnote, the Court stated:

“We note that there is some ambiguity as to whether § 13A-ll-8(a)(2) is merely a clarification of subsection (a)(1), requiring the prosecution to establish the elements of (a)(1), or is a completely separate definition of the offense, requiring only the establishment of the elements in (a)(2). Because only subsection (a)(1) contains the traditional language identifying the elements of a criminal offense — -‘A person commits the crime of harassment if ...’ — we adopt the former construction for the purposes of this appellate review.”

748 So.2d at 193 n. 3. Therefore, we hold that a person commits the crime of harassment if, with the intent to harass, annoy, or alarm another person, he or she strikes, shoves, kicks, or otherwise touches that person or subjects him or her to physical contact; directs abusive or obscene language or makes an obscene gesture towards that person; or makes a threat against that person, verbally or nonverbally, with the intent to carry out the threat, that would cause a reasonable person who is the target of the threat to fear for his or her safety. Thus, we conclude that, in certain situations — i.e., where the words or actions are manifested in the form of a threat — a person may commit the crime of harassment even if the words do not rise to the level of “fighting words.” We note that abusive or obscene language must still amount to “fighting words” in those situations where the language is merely offensive or distasteful, but does not constitute a threat.

We are now faced with the type of situation contemplated by the Legislature when it drafted the amendment to § 13A-11-8. Here, viewing the testimony in the light most favorable to the State, as is the standard of review when an appellant has challenged the sufficiency of the evidence, the record indicates that Fallin, a large man, was yelling at Johnson, waving his arms and pointing his finger at her as he approached her, saying that she was crazy and that she was a threat to the cheerleaders in her care. The record further indicates that as Fallin approached Johnson, he said, “This is not over yet ... I’m going to put my foot so far up your butt that it will be like white on rice.” (R. 154.) Johnson testified that she was placed in fear and that she thought she was going to have to fight “because [Fallin] kept coming at [me].” (R. 156.) Subsection (a)(2) provides that the state of mind of a reasonable person in the same situation in which the victim finds himself or herself is the governing standard. In the present case, although it was undisputed that Fallin remained at least 10 feet from Johnson, that he made no moves as if to strike her, and that he had nothing in his hands with which to cause her harm, Johnson’s testimony clearly satisfies the elements of harassment under the statute as it reads today. Johnson testified that she was “afraid for [her] safety” (R. 195), that she and the cheerleaders began retreating, and that she thought she might have to “defend [her]self” (R. 156). Johnson further stated that during the confrontation she was “visibly shaking ... [a]nd [that she] was terrified.” (R. 198.) Whether Johnson’s fears were reasonable was a question for the jury; it was for the jury to render a verdict based on the evidence presented at trial and the law as defined by the trial court.

Additionally, we note that the fact that the complaint did not specifically list § 13A-ll-8(a)(2) as the statute being violated is not fatal. As a clarification of subsection (a)(1), and not a separate offense, subsection (a)(2) would not have to be listed in the complaint. See Ex parte N.W., supra.

The trial court gave a jury instruction containing the language of subsection (a)(2), and Johnson testified that Fallin’s words and actions placed her in fear for her safety. Whether Fallin intended to harass, annoy, or alarm Johnson; whether he intended to carry out his threats; and whether it was reasonable for a person in Johnson’s position to have been placed in fear for her safety were questions that were properly submitted to the jury. Therefore, the trial court properly denied Fallin’s motion for a judgment of acquittal.

II.

Fallin also contends that the trial court erroneously allowed prior statements made by him to be introduced into evidence. In a pretrial motion in limine, Fal-lin asked the trial court to exclude evidence of a prior statement that he had made to Principal Embry the morning of the incident; that motion was denied. At trial, Principal Embry testified that Fallin had asked him to use his daughters’ cheer-leading scores from the previous year, thus justifying their being placed on the cheer-leading squad for the upcoming year. Principal Embry testified that when he told Fallin that he could not do that because it would not be fair to use different criteria for some girls to determine who made the cheerleading squad, Fallin became visibly displeased and left his office. Principal Embry testified, over Fallin’s objections, that Fallin said “that the blood would be on my hands. And if I didn’t go along with his suggestions, that the blood would be on my hands.” (R. 48.)

Rule 404(b), Ala.R.Evid., provides, in pertinent part:

“Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show action in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident. ...”

Evidence indicating that on the day of the incident and at the conclusion of a conversation about Johnson and the cheer-leading squad, Fallin had stated “the blood is on [Embry’s] hands” if he did not allow Fallin’s daughters’ cheerleading scores to be graded differently in order to allow them to be on the squad was clearly admissible to show Fallin’s intent, an essential element of the crime of harassment. Fallin cites Hunter v. State, 802 So.2d 265 (Ala.Crim.App.2000), to support his contention that the statements were inadmissible. However, Hunter is easily distinguishable from the facts here. In Hunter, evidence was introduced concerning an uncharged, dissimilar, and unrelated robbery that had occurred two weeks prior to the robbery for which Hunter was charged. This Court held that that evidence was not admissible to prove intent because it “did not logically lead to an inference that Hunter, because he had allegedly committed the prior robbery, had the prerequisite intent to commit the now-charged crimes at the time they were committed.” Hunter, 802 So.2d at 270. Here, unlike the evidence complained of in Hunter, the statements Fallin made to Principal Em-bry logically lead to an inference that Fal-lin had the prerequisite intent to seek Johnson out and confront her, which he did that same day. The trial court did not err in allowing the statements into evidence.

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

AFFIRMED.

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

      . Both of Fallin's daughters were junior varsity cheerleaders, but they had not been selected for the varsity squad.

      . The trial court also correctly noted this fact when Fallin cited many of these cases in his motion to dismiss the complaint and during the arguments on his motion for a judgment of acquittal.

      . Johnson stated that she was not moved by Fallin’s words to attack him. However, an actual attack or retaliation has never been a requirement for a conviction, even one based solely on the use of "fighting words.”

      . The only other people in the gymnasium were the cheerleaders and some of the mothers. We note that several of those witnesses stated that they feared Fallin and had backed away from him. One of the witnesses testified that she began to move toward Fallin as he approached Johnson and the cheerleaders because her daughter was in the group of cheerleaders standing near Johnson. (R. 123.) That same witness testified that the mother of another cheerleader actually confronted Fallin, ordered him to leave the gym, and then telephoned the police. This testimony certainly lends credence to the jury’s apparent finding that Johnson’s fears were reasonable.

      .The fact that the ordinance was enacted before the 1996 amendment is irrelevant because § 18-1, Huntsville Code of Ordinances 1982, contains "now existing or hereafter enacted” language sufficient to encompass the 1996 amendment to § 13A-ll-8(a), Ala.Code 1975.