text:
    Melissa ISAAK v. Johnny GRICE.
    2010655.
    Court of Civil Appeals of Alabama.
    Nov. 22, 2002.
    Blaine C. Stevens, Ozark, for appellant.
   CRAWLEY, Judge.

On November 20, 2001, Melissa Isaak filed a complaint for a temporary restraining order against her former boyfriend, Johnny Grice, alleging that Grice had engaged in acts of harassment, intimidation, and stalking, in violation of § 13A-6-90, Ala.Code 1975. On the same day, the circuit court granted Isaak the relief she sought and set a hearing for December 18, 2001, to determine whether to make the restraining order permanent. Grice did not appear on December 18; the circuit court issued a permanent restraining order. Subsequently, Grice notified the court that he had not received notice of the hearing. The circuit court reset the matter for a hearing on March 20, 2002.

At the March 20 hearing, Grice’s counsel moved for a mutual restraining order. Is-aak’s counsel objected, stating that Isaak had taken no actions against Grice to warrant the issuance of a restraining order against her. Grice testified that Isaak had told him that she knew people at Fort Rucker and could ruin his job. In answer to a question from his attorney inquiring whether he was “coneemfed] that [Isaak] may follow through with these threats and cause a problem to [his] employment,” Grice answered “yes.”

The circuit court entered an order that states, in its entirety:

“This matter came before the Court on [Isaak’s] Motion for Restraining Order against [Grice], Hearing was held on March 20, 2002. Isaak was present along with her attorney.... [Grice] was present along with his attorney.... Sworn testimony was taken by the Court.
“Based on the evidence produced at the hearing, the testimony of the part[ies] and argument of counsel, it is ORDERED, ADJUDGED AND DECREED as follows:
“1. That [Grice] shall be permanently restrained from contacting [Isaak] either directly or indirectly in any manner. Further, [Grice] is restrained from going within 100 feet of [Isaak’s] residence or place of employment.”
“2. [Isaak] shall be permanently restrained from contacting [Grice] either directly or indirectly in any manner. Further, [Isaak] is restrained from going within 100 feet of [Grice’s] residence or place of employment.
“3. Both parties shall be permanently restrained in accordance with the terms of this Order.
“4. Should either party violate the terms of this Order in any manner, such violation shall be punishable by the Contempt power of this Court. Both parties are reminded that the Court’s Contempt powers are broad, and include a range of remedies up to, and including imprisonment in the County Jail for violations of this Order.
“Therefore, both parties shall be permanently restrained in accordance with the conditions of this Order.”

Isaak makes two arguments on appeal: (1) that the evidence was insufficient to authorize the entry of a mutual restraining order and (2) that the permanent restraining order does not meet the mandatory requirements of Rule 65(d)(2), Ala. R. Civ. P. The resolution of Isaak’s second argument makes discussion of her first argument unnecessary.

The circuit court’s order fails to comply with Rule 65(d)(2), Ala. R. Civ. P. That rule states, in pertinent part:

“(2) Every order granting an injunction shall set forth the reasons for its issuance; shall be specific in terms; shall describe in reasonable detail, and not by reference to the complaint or other document, the act or acts sought to be restrained.... ”

The requirements of Rule 65(d)(2) are mandatory. Appalachian Transp. Group, Inc. v. Parks, 738 So.2d 878, 883 (Ala.1999); Teleprompter of Mobile Inc. v. Bayou Cable TV, 428 So.2d 17, 19 (Ala.1983). The order fails to comply with Rule 65(d)(2) because it does not set forth the reasons for the issuance of the permanent restraining order. See, e.g., Tapscott v. Fowler, 437 So.2d 1280 (Ala.1983). In addition, the order fails to state that irreparable harm would occur without the issuance of the restraining order. See Elliott v. Ole Town Ventures, 777 So.2d 132, 134 (Ala.Civ.App.2000). The Alabama Supreme Court stated in Bankruptcy Authorities, Inc. v. State, 592 So.2d 1042, 1044-45 (Ala.1992):

“It is apparent that the permanent injunction does not comply with Rule 65(d)(2). First, there are no specific reasons stated for the issuance of the permanent injunction.... Rule 65(d)(2) states in mandatory terms that an injunction must recite the specific reason or reasons for its issuance ”

Because the trial court did not comply with the mandatory requirements of Rule 65(d)(2), that part of the restraining order purporting to restrain or enjoin Isaak from contacting Grice or from “going within 100 feet of [Grice’s] residence or place of employment” is due to be dissolved. The judgment of the circuit court is reversed and the cause is remanded.

REVERSED AND REMANDED.

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

MURDOCK, J., concurs in the result.


source: Caselaw Access Project

author: MURDOCK, Judge. YATES, Presiding Judge,

license: Public Domain

text:
    Ex parte Lucia PATTERSON. (In re Lucia Patterson v. Aaron C. Patterson).
    2010946.
    Court of Civil Appeals of Alabama.
    Nov. 22, 2002.

      Jim S. Calton, Jr., of Calton & Calton, Eufaula, for petitioner.
    Robert C. Faircloth of Calhoun, Faulk, Watkins & Faircloth, L.L.C., Troy, for respondent.
   MURDOCK, Judge.

Lucia Patterson (the “wife”) petitions this court for a writ of mandamus directing the Barbour Circuit Court to vacate its order granting Aaron Patterson (the “husband”) an extension of time within which to file a postjudgment motion.

The wife filed a complaint for divorce on August 20, 2001. Following a trial on December 4, 2001, the circuit court issued a final judgment of divorce on April 29, 2002. Pursuant to the judgment, the wife received primary custody of the parties’ minor children and was awarded child support in accordance with the child-support guidelines of Rule 32, Ala. R. Jud. Admin. The court also divided the marital property and awarded periodic alimony to the wife.

On May 31, 2002, the husband filed a motion requesting an extension of time within which to file a motion pursuant to Rule 59 and Rule 60, Ala. R. Civ. P., for a new trial or, in the alternative, for an amendment to the court’s April 29, 2002, final judgment. Although the wife objected to the extension request, the trial court granted the husband’s motion on June 6, 2002, purporting to extend the time within which the husband could file a post-judgment under Rule 59 and/or Rule 60. Thereafter, pursuant to the purported extension, the husband filed a motion seeking a new trial or, in the alternative, an amendment of the trial court’s final judgment. On June 20, 2002, the wife filed in this court her petition for a writ of mandamus.

A writ of mandamus is an extraordinary writ to be issued only when “(1) the petitioner has a clear legal right to the relief sought; (2) the respondent has an imperative duty to perform and has refused to do so; (3) the petitioner has no other adequate remedy; and (4) this Court’s jurisdiction is properly invoked.” Ex parte Flint Constr. Co., 775 So.2d 805, 808 (Ala.2000) (citing Ex parte Mercury Fin. Corp., 715 So.2d 196, 198 (Ala.1997)). Because mandamus is an extraordinary remedy, our review of the petition is limited to determining whether there has been a clear abuse of discretion by the trial court. White v. Howie, 677 So.2d 752, 754 (Ala.Civ.App.1995).

The husband stated in his post-judgment motion that that motion was being filed pursuant to both Rule 59 and Rule 60. Insofar as Rule 59 is concerned, we note that the motion contains both a request for a new trial, see Rules 59(a) and (b), Ala. R. Civ. P., and a request, in the alternative, that the court amend its final judgment, see Rule 59(e), Ala. R. Civ. P. Rules 59(b) and (e), respectively, provide that a motion for a new trial and a motion to amend a judgment must be filed within 30 days after the entry of the judgment. Rule 6(b), Ala. R. Civ. P., provides that a court “may not extend the time for taking any action under Rules 50(b), 52(b), 59(b), (d), and (e), and 60(b), except to the extent and under the conditions stated in them.” Neither Rule 59(b) nor Rule 59(e) provide for such an extension of time, and the 30-day time limit for the filing of motions contemplated by those rules therefore cannot be extended. Marsh v. Marsh, 852 So.2d 161 (Ala.Civ.App.2002); Hallmark v. Hallmark, 381 So.2d 641, 642 (Ala.Civ.App.1980); Cornelius v. Green, 477 So.2d 1363, 1364-65 (Ala.1985).

Accordingly, the last day upon which the husband could have filed either a motion for a new trial or a motion to amend the judgment was May 29, 2002. The circuit court was without authority to grant an extension of time beyond that date for the filing of either such motion. Thus, to the extent that the wife’s petition for a writ of mandamus seeks relief from that aspect of the trial court’s order extending the time for the husband to file a Rule 59 motion, the petition is due to be granted. The trial court is directed to vacate its order in that regard and to dismiss as untimely that portion of the husband’s postjudgment motion seeking relief under Rule 59.

The husband’s postjudgment motion also sought relief under Rule 60, Ala. R. Civ. P. The motion asserts “newly discovered evidence,” a ground for relief that is addressed in Rule 60(b)(2).

Motions for relief from a judgment that allege newly discovered evidence under Rule 60(b) must bé filed “within a reasonable time, and for reasons (1), (2), and (3) not more than four (4) months after the judgment, order, or proceeding was entered or taken.” Again, Rule 6(b) provides that the time period within which a Rule 60(b) motion may be filed may be extended only to the extent allowed by Rule 60(b). Rule 60(b) contains no provision allowing for such an extension. Thus, as in the case of the trial court’s order purporting to grant additional time for the filing of a Rule 59 motion, the trial court was without authority to grant an extension of time to the husband for the filing of a Rule 60(b) motion.

Unlike the husband’s Rule 59 motion, however, the husband’s Rule 60(b) motion may not have been untimely. Because the motion was filed within the four-month outer time limit specified in Rule 60(b) for motions filed under Rules 60(b)(1) through (8), the question of its timeliness turns on whether it also was filed within “a reasonable time.” If it was, the wife has suffered no injury as a result of the trial court’s purported extension of time for the filing of that motion. A showing of injury is required for the issuance of a writ of mandamus. See Ex parte AmSouth Bank, 735 So.2d 1151, 1154 (Ala.1999). Also, as noted above, a writ of mandamus is to be issued only when a petitioner has a “clear legal right to the relief sought.” See Ex parte Flint Constr. Co., 775 So.2d at 808. The burden is on the petitioner who seeks a writ of mandamus to show that each element required for issuance of the writ has been satisfied. See Ex parte Consolidated Publ’g Co., 601 So.2d 423 (Ala.1992). The materials submitted to this court by the wife in this case do not establish as a matter of law that the husband’s post-judgment motion, to the extent it was filed pursuant to Rule 60(b), was filed beyond a reasonable time. Therefore, insofar as it relates to the husband’s effort to obtain relief under Rule 60(b), the wife’s petition for a writ of mandamus is due to be denied.

To the extent the husband’s motion seeks relief from the trial court’s judgment pursuant to Rule 60(b)(2), however, we note that that rule allows for such relief on the basis of “newly discovered evidence” that by due diligence could not have been discovered in time to move for a new trial under Rule 59(b). It does not allow for such relief on the basis of facts or circumstances that occur or come into existence after the judgment is entered.

PETITION GRANTED IN PART AND DENIED IN PART.

CRAWLEY and PITTMAN, JJ., concur.

YATES, P.J., and THOMPSON, J., concur specially.

YATES, Presiding Judge,

concurring specially.

I agree with the majority that the trial court exceeded its authority in extending the time for the husband to file a motion for a new trial or a motion to alter, amend, or vacate the judgment under Rule 59, Ala. R. Civ. P. I agree that the wife is entitled to mandamus relief in the form of ordering the trial court to vacate its order and to dismiss as untimely that portion of the husband’s postjudgment motion seeking relief under Rule 59. I also agree that the wife has not shown that she is entitled to a writ of mandamus on the grounds that the husband’s Rule 60(b)(2), Ala. R. Civ. P., motion alleging newly discovered evidence was untimely. However, even if his motion had not been timely, the husband is not entitled to relief pursuant to Rule 60(b)(2).

“Rule 60(b)(2) allows a trial court to reheve a party from a final judgment, order, or proceeding if that party has newly discovered evidence that by due diligence could not have been discovered in time to move for a new trial under Rule 59(b). ‘ “Newly discovered evidence” as contemplated by Rule 60(b)(2) means evidence in existence at the time of trial of which the movant was unaware, and which could not through due diligence have been discovered in time to move for a new trial .... ’ McLeod v. McLeod, 473 So.2d 1097, 1099 (Ala.Civ.App.1985).”

Johnson v. Johnson, 702 So.2d 161, 162 (Ala.Civ.App.1997).

The final hearing in this matter was held on December 4, 2001. The final judgment was entered on April 29, 2002. In his motion seeking relief from judgment, the husband stated:

“There now exists new evidence regarding the defendant’s income which was not available at the final hearing and could not have been reasonably discovered by him. The judgment rendered ... included an order for the defendant to pay child support ... Said child support was calculated according to the Child Support Guidelines of the Alabama Rules of Judicial Administration, and included the defendant’s income figures and consisted of his regular salary and overtime compensation paid during the calendar year 2001. After final hearing was held the defendant learned from his employer that overtime would not be available for calendar year 2002. This newly discovered evidence as applied to child support calculations would require a different result in the calculation thereof.”

Facts coming into existence after the trial do not constitute newly discovered evidence. The change in the father’s income for the 2002 calendar year is “new evidence” — not “newly discovered evidence.” While the father may be entitled to a modification of his child-support obligation if he can prove a material change in circumstances based on the loss of his overtime compensation, he is not entitled to relief pursuant to Rule 60(b)(2).

THOMPSON, J., concurs.


author: SHAW, Judge. COBB, Judge

text:
    J.A.P. v. STATE of Alabama.
    CR-99-2339.
    Court of Criminal Appeals of Alabama.
    Aug. 31, 2001.
    Rehearing Denied Oct. 19, 2001.

      Joe W. Morgan III, Birmingham, for appellant.
    William H. Pryor, Jr., atty. gen.; and Kristi L. Deason and Andy Scott Poole, asst, attys. gen., for appellee.
   SHAW, Judge.

A delinquency petition was filed in the Juvenile Court of Jefferson County, charging the appellant, J.A.P., a 14-year-old male, with the attempted first-degree rape of his 9-year-old half sister, L.P. The charge was based on allegations that the appellant, in violation of § 13A-4-2, Ala. Code 1975, had attempted to commit the offense of first-degree rape, as that offense is defined in § 13A-6-61(a)(l), Ala.Code 1975. After conducting an evidentiary hearing, the juvenile court found the charge in the petition to be true, and adjudicated the appellant delinquent. We affirm.

The sole issue presented on appeal is whether the evidence was sufficient to support the juvenile court’s judgment. Specifically, the primary question is whether the evidence was sufficient to allow the juvenile court to infer the element of “forcible compulsion.” In his brief to this Court, the appellant states:

“[The appellant] urges that the reason for [his requesting] oral argument is that there is a point of law that controls in this case. That point of law concerns the issue of ‘forcible compulsion.’ The case revolves around whether forcible compulsion was used in this case. He concedes that if forcible compulsion was used, there is a violation of the law.”

(Appellant’s brief at p. 62.)

“ ‘Section 12-15-65(e), Ala.Code 1975, requires that an adjudication of delinquency be supported by “proof beyond a reasonable doubt, based on competent, material[,] and relevant evidence.” The credibility of witnesses and the truthfulness of testimony in delinquency proceedings is for the trier of fact to determine. C.T.L. v. State, 599 So.2d 94 (Ala.Crim.App.1992). Furthermore, in resolving questions of sufficiency of the evidence, this court must view the evidence in the light most favorable to the state. Id.’

R.B.H. v. State, 762 So.2d 382, 383 (Ala.Crim.App.1999), quoting A.A.G. v. State, 668 So.2d 122, 124 (Ala.Crim.App.1995). The sufficiency-of-the-evidence issue was properly preserved upon the juvenile court’s denial of the appellant’s motion for a judgment of acquittal at the close of the State’s case and of the appellant’s motion for a new trial.

Section 13A-4-2 provides, in pertinent part:

“(a) A person is guilty of an attempt to commit a crime if, with the intent to commit a specific offense, he does any overt act towards the commission of such offense.
“(c) A person is not liable under this section if, under circumstances manifesting a voluntary and complete renunciation of this criminal intent, he avoided the commission of the offense attempted by abandoning his criminal effort and, if mere abandonment is insufficient to accomplish such avoidance, by taking further and affirmative steps which prevented the commission thereof. The burden of injecting this issue is on the defendant, but this does not shift the burden of proof.”

At the time of the incident made the basis of the delinquency petition, § 13A-6-61 provided, in pertinent part, as follows:

“(a) A male commits the crime of rape in the first degree if:
“(1) He engages in sexual intercourse with a female by forcible compulsion. ...”

The record indicates the following: The incident in question occurred when the appellant and the victim were alone at home. The appellant, who was approximately four and a half years older than the victim, made the victim watch a pornographic video, attempted to engage in sexual intercourse with her, and told the victim not to tell anyone. This was not the first incident of the sexual abuse of the victim. From the time that she was four or five years old, the victim had beén the object of continued sexual abuse by older males, including C.P. (the appellant’s brother, who was five years older than the appellant), a friend of C.P.’s, an uncle, and the appellant. (R. 60-61, 72-73.) The appellant had shown the victim a pornographic video on at least one previous occasion; he had touched the victim in her genital area with his penis on at least one occasion before this incident; and he had touched the victim’s genital area with his fingers on numerous occasions. (R. 60, 62, 72, 79-81.) The evidence also indicated that the appellant and the victim were raised in a dysfunctional household, in the presence of a parent and a stepparent who abused alcohol and/or took illegal drugs, and that they were quite often left to fend for themselves, without parental supervision, and with ready access to pornographic videos. (R. 119-61.)

With respect to the incident in question, the victim testified that the appellant “made” her watch the pornographic video by telling her to “come on” and that she always knew when she was told to watch one of the pornographic videos with her older half brothers that sexual contact would follow. The victim also testified that she was “afraid” of the appellant and that she knew that what he was doing was wrong. (R. 51-54, 57-59, 65-69, 79, 83-85, 90.) The evidence revealed a continuing pattern of sexual abuse by the victim’s older half brothers. The victim acknowledged a fear of any male who wanted to touch her. (R. 92-93.)

The appellant testified that he had been sexually abused by his brother, C.P., on a number of occasions. (R. 172-75.) He also stated during the hearing that nothing had physically prevented him from engaging in sexual intercourse with the victim. He testified that he had aborted his attempt to penetrate the victim because she began to cry. The evidence also indicated, and the juvenile court noted, that the appellant had previously told a police investigator that he had stopped because he could not physically insert his penis into the victim’s vagina. (R. 202-06.) Based on all the evidence presented at the hearing, including the victim’s in-court testimony and the victim’s recorded statement taken during an interview at the Prescott House, the juvenile court found that the appellant had attempted to engage in sexual intercourse with the victim by forcible compulsion. The juvenile court stated as follows at the close of the hearing:

“[The Court]: ... That’s what he says in this statement to this police officer. He just couldn’t. Then she cried. Then he felt sorry. It’s not like he didn’t know it was wrong. Just because he had people who had sexually offended him all his life doesn’t make it right for him to do it to somebody else. He is not retarded.
“You know, where I hope his brother goes.[] And if I could, I’d send his parents there too, ... because that’s where they need to be.
“But in the meantime, what least impressed me about your client was his saying one thing to the police and then getting in here and changing his story. I will say to you that that is not conducive to his being in outpatient treatment. He says — I think the State has proven attempted rape. I think the State has proven attempted rape.
“And we have a child here who has been sexually abused — a victim by her brother — older brother and I think [by] him since she was a very little girl....
“... I’ll put it on the record that this little girl has been sexually abused since she was four years old. It is a habit and pattern for her brothers and their friends.
“And, so, I think what happened here — what I can deduce from the evidence and I believe is that this young man had been having sex with her without trying to put his penis in her vagina for a long time. He got older. It’s just a natural course of things. The next thing he decided it might be better if he just did it. Then he didn’t because I don’t think he could. He said to the police he couldn’t get it in her.
“Now, I know we have a different story today. I do believe that when he couldn’t get it in her, he may have at least had a second there to think about it. But by then the deed was done. That’s what I think.
“I also think he needs treatment. I agree with him.[] I think it has to be inpatient. I don’t think there’s anybody here he could go to anyway. I don’t think there’s anybody here any of these children can go to today.
“And DHR is here. That’s a whole other issue about this poor little girl who now at her little age thinks it’s okay and fun to have sex because she’s been so horribly abused. That’s what she thinks love is. He may too. I agree with you on that.
“I feel sorry for him too, but he’s committed a serious crime. That’s what treatment is about. Because most of our children who do these kinds of things to little girls and little boys have themselves been abused. We know that. But if something doesn’t happen, he’ll continue to do it. It’s his denial that concerns me about what kind of treatment he should get.
“I thank you all. He will need to stay here. I’m going to refer him to sexual offender treatment through the Department of Youth Services.”

(R. 208-11.)

Viewing the evidence in the light most favorable to the State, and indulging all reasonable inferences in favor of the juvenile court’s credibility findings, we affirm the judgment based on this Court’s decision in B.E. v. State, 778 So.2d 863 (Ala.Crim.App.2000). Although the evidence in the present case is not identical to that in B.E., we find the two cases are not materially distinguishable. In B.E., this Court stated:

“In Powe v. State, 597 So.2d 721 (Ala.1991), the Alabama Supreme Court recognized that in cases of sexual offenses committed against children, ‘forcible compulsion’ can include more than the exercise of sheer physical force or threats of violence and is relative, depending upon the facts and circumstances of a particular case. The Court noted:
“ When a defendant who plays an authoritative role in a child’s world instructs the child to submit to certain acts, an implied threat of some sort of disciplinary action accompanies the instruction. If the victim is young, inexperienced, and perhaps ignorant of the “wrongness” of the conduct, the child may submit to the acts because the child assumes the conduct is acceptable or because the child does not have the capacity to refuse ...
“ ‘. [T]he unique relationship between children and the adults who exercise a position of domination in control over them may be taken into consideration in determining whether the element of forcible compulsion has been established.’
597 So.2d at 728-29. See also Howell v. State, 636 So.2d 1260 (Ala.1993); and Rhodes v. State, 651 So.2d 1122 (Ala.Crim.App.1994).
“In Powe, our Supreme Court quoted with approval the Pennsylvania Supreme Court’s opinion in Commonwealth v. Rhodes, 510 Pa. 537, 510 A.2d 1217 (1986), which set out the following factors to be weighed in determining whether the evidence in a particular case supports a finding that the defendant used forcible compulsion against a child:
“ ‘ “[T]he respective ages of the victim and the accused, the respective mental and physical conditions of the victim and the accused, the atmosphere and physical setting in which the incident was alleged to have taken place, the extent to which the accused may have been in a position of authority, domination or custodial control over the victim, and whether the victim was under duress.” ’
597 So.2d at 728, quoting Commonwealth v. Rhodes, 510 Pa. at 556, 510 A.2d at 1226. The Pennsylvania Court noted that this list of factors was not exclusive. Id.
“The appellant argues that Powe is inapplicable to the forcible-compulsion analysis in his case because, he says, the holding in Powe is limited to those cases where the defendant is an adult and that that holding cannot be extended to cases where the defendant is, like the appellant, a minor. We disagree, because we think the focus in Powe is on the child victim and the perspective should be that of the child victim; accordingly, where there is a significant enough difference in age or physical maturity between the defendant and the victim, and the defendant occupies a position of authority or control over the victim, forcible compulsion may exist whether or not the defendant is legally an adult.”

778 So.2d at 865-66.

We conclude that this Court’s holding in B.E. is controlling in the present case based on our consideration of the respective ages of the appellant and the victim; the atmosphere and physical setting in which the appellant and the victim lived and in which the incident took place; the extent to which the appellant may have been in a position of domination or influence over the victim; and the extent to which the victim was under mental duress as the result of years of sexual abuse at the hands of older males, including her half brothers. We continue to believe that the focus in cases of this kind, as the Alabama Supreme Court recognized in Powe v. State, 597 So.2d 721 (Ala.1991), must be on the child victim and that the issue of the sufficiency of the evidence to support a finding of forcible compulsion must be resolved by viewing the totality of the evidence from the perspective of the child victim. We also believe that in close cases of this nature, the juvenile court is in a unique position to assess the credibility of the witnesses and to determine whether' a young child was physically compelled or psychologically coerced or conditioned by years of sexual abuse into participating in a sex act with an older child.

“For they have sown the wind, and they shall reap the whirlwind.” There is plenty of blame to be assessed in this difficult case. These children, both the appellant and the victim, are surely a product of their dysfunctional home and morally corrupt environment. The juvenile court, wisely recognizing and acknowledging as much, nonetheless found that the appellant had violated Alabama law, and that court remanded him into the custody of the Department of Youth Services so that he could receive treatment and counseling as a sex offender. For the reasons stated above, the juvenile court’s judgment is affirmed.

AFFIRMED.

McMILLAN, PM., and BASCHAB and WISE, JJ„ concur.

COBB, J., dissents, with opinion.

COBB, Judge

(dissenting).

I respectfully dissent.

The evidence offered at trial revealed a pattern of years of sexual abuse in J.A.P. and L.P.’s home. Approximately five years before the incident in question, J.A.P.’s older brother, C.P., at the babysitter’s invitation, had been watching the babysitter and her boyfriend have sex, and the threesome subsequently invited J.A.P. to watch. Shortly thereafter, the older brother began to sexually abuse J.A.P. and the victim in this case, their younger half sister, L.P. J.A.P., in time, also had sexual contact with his half sister, giving rise to the charge in this case. There was evidence that a neighborhood boy and an uncle had also sexually abused L.P. Around February 1, 2000, the mother was alerted to a problem with L.P. because of LJP.’s reaction to an adult movie that was playing on the television when L.P. unexpectedly walked into her mother’s bedroom. Four days later, the mother questioned her daughter, and thus began the unraveling of this account of in-trafamilial sexual abuse. The sexual conduct between J.A.P. and L.P. in this case consisted of watching adult movies together, fondling, rubbing, and simulating sexual intercourse. There was no evidence of penetration, no evidence of any physical injury to L.P., and no evidence of oral sex involving J.A.P.

I believe that this conduct does not rise to the level of the conduct proscribed by § 13A-6-61, Ala.Code 1975.

In this case, the circuit court found evidence of forcible compulsion in the courtroom testimony of the victim and in the victim’s recorded statement taken during an interview at a shelter for victims of sexual abuse. The victim’s interview yielded the following relevant exchanges with the interviewer:

“L.P.: [My brothers] um, they like ... you know what parents do?
“Interviewer: Gosh, parents do lots of things. Like what, what kind of things do parents do?
“L.P.: My brother actually, you know, them movies. The movies that parents watch.
“Interviewer: The movies that parents watch. What’s in the movies, do you know?
“L.P.: My brothers told me this. Um, um, um, it, um, it is bad movies. “Interviewer: Bad movies.
“L.P.: My brothers told me to come in and watch them and I said no. And they told me anyways to come in there and watch ‘em.
“Interviewer: ... [N]ow where would you be when [J.A.P.] or [C.P.] ...
“L.P.: My home.
“Interviewer: At your home? Who all would be there?
“L.P.: Nobody.
“Interviewer: Did [C.P.] say anything while he was doing that, or while he was putting his thing on you?
“L.P.: He told me not to tell anybody, but I told somebody. I told my mom, and you, and Polly, and the other. I went to [the] police station and I went to the doctor.
“Interviewer: Yes, you did. Um, did [J.A.P.] say anything to you?
“L.P.: Uh-uh (negative).
“Interviewer: No?
“L.P.: He said the same thing.
“Interviewer: He said the same thing as what?
“L.P.: [C.P.J
“Interviewer: As [C.P.] [C.P.] said not to tell, did they say what would happen if you told?
“L.P. Uh-uh (negative).
“Interviewer: Okay. Well what would it feel like when um [J.A.P.] or [C.P.] would pull their thing out and get on top of you and do like that (making waving motion on thigh of interviewer)?
“L.P.: What?
“Interviewer: Did it feel weird or funny or ...
“L.P.: Weird.
“Interviewer: Weird. Did it feel bad or did it feel good?
“L.P.: It felt good.
“Interviewer: Let me go cheek on a few things and see how Ms. Polly [the police officer] is doing downstairs.
“L.P.: Don’t tell her.
“Interviewer: Don’t tell her what?
“L.P.: That it felt good (giggle).
“Interviewer: Don’t tell her it felt good? Do you want me to fix this leg (on the doll)? Sometimes the legs come off. Okay, I will not tell her that.
“L.P.: Because I do not like to get in trouble. I don’t like trouble. This is a (unintelligible).
“Interviewer: Well, you know what you did the right thing by telling about what [C.P.] and [J.A.P.] were doing. Do you know that?
“L.P.: I was afraid I was going to get in trouble.
“Interviewer: I did not go tell Polly anything and I am not going to tell Polly anything. I mean you can talk to her about things that you want to talk to her about, but ...
“L.P.: We have ... we are going to have to go back to Polly’s in a little bit.
“Interviewer: Are you? No, I was just talking to some folks down the hall. But I’m going to tell Polly what happens next. I’m not gonna ...
“L.P.: Cause.
“Interviewer: Cause why?
“L.P.: Because I do not want people to know if it felt good or not.
“Interviewer: That’s ... you can ... you cannot tell people that. You don’t have to tell people about that.”

(Emphasis added.) At the hearing, L.P. testified about the Leeds incident with J.A.P.:

“[Defense counsel]: All right. And was there anybody else in the shop — meaning the shop of the apartment — other than you and [J.A.P.]?
“[L.P.]: No, sir.
“[Defense counsel]: And had you watched a movie this time?
“[L.P.]: Yes, sir.
“[Defense counsel]: All right. Now—
“THE COURT: Did you watch the movie too?
“[L.P.]: Yes, ma’am.
“THE COURT: Did they make you watch it or did you want to watch it?
“[L.P.]: Made me.
“THE COURT: How did they make you? How did he make you?
“[L.P.]: Just by saying come on. Just by saying come on.
“THE COURT: Okay.
“THE COURT: When you watched these movies with your brothers or either one of your brothers, did you kind of know what might happen?
“[L.P.]: Yes, ma’am. I knew all along. I knew all along.
“THE COURT: Did you ever cry or anything?
“[L.P.]: No, ma’am.
“THE COURT: Did you think anything was wrong with it?
“[L.P.]: Yes, ma’am.
“THE COURT: Okay.
“[Defense counsel]: After [J.A.P.] touched you, did he say anything?
“[L.P.]: Yes, sir. He said don’t tell mom.
“[Defense counsel]: And did you say anything?
“[L.P.]: No, sir.
“[Defense counsel]: This time in Leeds before watching the movie, did [J.A.P.] say anything to you before the movie started?
“[L.P.]: Yes, sir. He said don’t tell.
“[Defense counsel]: Did he say anything else to you during that whole time?
“[L.P.]: That was it.
“[Defense counsel]: ... Okay. All right. Had [J.A.P.] — was [J.AP.] ever mean to you after you watched that movie and he touched you?
“[L.P.]: He—
“[Defense counsel]: Did he ever do anything mean or bad to you?
“[L.P.]: No, sir.
“[Defense counsel]: All right. Were you afraid of[J.AP.]?
“[L.P.]: Pm always afraid.
“[Defense counsel]: Were you afraid of [C.P.]?
“[L.P.]: Yes, sir.
“THE COURT: Are you pretty scared of all guys?
“[L.P.]: Yes, ma’am.
“THE COURT: I don’t blame you. That makes sense to me.
“[L.P.]: Yes, it does.
“[Defense counsel]: All right. But people that want to touch you, you’re afraid of them aren’t you?
“[L.P.]: Yes, sir.”

(R. 88-93.) (Emphasis added.)

Three days after L.P. told her mother about the sexual conduct, the police interviewed J.A.P. When asked about the Leeds incident, J.A.P. stated in his interview that he had asked L.P. to remove her pants and panties and that he did not remember what she said when he asked her to do so. (C.R. ’94.) At the hearing, J.A.P. testified to the following:

“[Prosecutor]: Okay. Did [L.P.] take her clothes off voluntarily or did you take them off?
“[J.A.P.]: She took them off.
“[Prosecutor]: Do you recall telling Detective Collier that you took them off? []
“[J.A.P.]: No, sir. I don’t recall telling him that.
“[Prosecutor]: Let me ask you this. Did you ask [L.P.] to take her clothes off?
“[J.A.P.]: Yes, sir.
“[Prosecutor]: And did she take them off on her own?
“[J.A.P.]: She took them off.
“[Prosecutor]: But you asked her, you initiated her taking her clothes off?
“[J.A.P.]: No. She took her clothes off. I just asked her.
“[Prosecutor]: That’s what I’m asking. You did ask her to. She didn’t take them off on her own. It wasn’t her idea to have this sexual contact with you, was it?
“[J.A.P.]: No, sir.
“[Prosecutor]: It was always your idea? “[J.A.P.]: Yes, sir.
“[Prosecutor]: You always started it? “[J.A.P.]: Yes, sir.
“[Defense counsel]: What was the reason you didn’t put your penis in her vagina, as far as you know is there any reason you could not have physically?
“[J.A.P.]: No, sir.
“[Defense counsel]: What was the reason you didn’t put your penis inside her vagina?
“[L.A.P.]: A tear fell from her eye and that kind of gave me a signal, you know.
“[Defense counsel]: Did you decide not to do it?
“[J.A.P.]: Yes, sir.
“[Defense counsel]: Now, before you ever touched her, did you order or tell her or command her to do anything?
“[J.A.P.]: No, sir.
“[Defense counsel]: Did you ever threaten her or tell her you were going to hit her or slap her?
“[J.A.P.]: No, sir.
“[Defense counsel]: Be mean to her in any way?
“[J.A.P.]: No, sir.”

(R. 198-203) (Emphasis added.)

“[W]hen considering issues dealing with sufficiency, this court must accept as true to the evidence introduced by the prosecution, must accord the prosecution all legitimate inferences from that evidence, and must consider that evidence in the light most favorable to the prosecution.” Glass v. State, 671 So.2d 114, 118 (Ala.Crim.App.1995).

Section 13A-6-61(a), Ala.Code 1975, provides:

“(a) A male commits the crime of rape in the first degree if:
“(1) He engages in sexual intercourse with a female by forcible compulsion; or
“(2) He engages in sexual intercourse with a female who is incapable of consent by reason of being physically helpless or mentally incapacitated; or
“(3) He, being 16 years or older, engages in sexual intercourse with a female who is less than 12 years old.”

(Ehaphasis added.) Section 13A-6-60(8), Ala.Code 1975, defines “forcible compulsion” as “[pjhysical force that overcomes earnest resistance or a threat, express or implied, that places a person in fear of immediate death or serious physical injury to himself or another person.” (Emphasis added.) Section 13A-l-2(9), Ala. Code 1975, defines “serious physical injury” as “[p]hysical injury which creates a substantial risk of death, or which causes serious and protracted disfigurement, protracted impairment of health or protracted loss or impairment of the function of any bodily organ.”

In construing the applicability of a statute, we apply the standards established by prior caselaw:

“ ‘It is well settled that, although there are occasions when a court must correct or ignore obvious inadvertences in order to give a law the effect which was plainly intended by the legislature, the judiciary cannot and should not, in a republican form of government, usurp the legislative function. Hamilton v. Smith, 264 Ala. 199, 86 So.2d 283 (1956). Where, as here, this Court is called upon to construe a statute, the fundamental rule is that the court has a duty to ascertain and effectuate legislative intent expressed in the statute, which may be gleaned from the language used, the reason and necessity for the act, and the purpose sought to be obtained. Shelton v. Wright, 439 So.2d 55 (Ala.1983). Where a statutory pronouncement is distinct and unequivocal, there remains no room for judicial construction and the clearly expressed intent of the legislature must be given effect. Dumas Brothers Manufacturing Co. v. Southern Guaranty Ins. Co., 431 So.2d 534 (1983).’
“Ex parte Holladay, 466 So.2d 956, 960 (Ala.1985) (emphasis added).
“ ‘A basic rule of review in criminal cases is that criminal statutes are to be strictly construed in favor of those persons sought to be subjected to their operation, ie., defendants. Schenher v. State, 38 Ala.App. 573, 90 So.2d 234, cert. denied, 265 Ala. 700, 90 So.2d 238 (1956).
“ ‘Penal statutes are to reach no further in meaning than their words. Fuller v. State, 257 Ala. 502, 60 So.2d 202 (1952).
‘One who commits an act which does not come within the words of a criminal statute, according to the general and popular understanding of those words, when they are not used technically, is not to be punished thereunder, merely because the act may contravene the policy of the statute. Fuller v. State, supra, citing Young’s Case, 58 Ala. 358 (1877).
“ ‘No person is to be made subject to penal statutes by implication and all doubts concerning their interpretation are to predominate in favor of the accused. Fuller v. State, supra.’
“Clements v. State, 370 So.2d 723, 725 (Ala.1979) (emphasis added), overruled on other grounds, Beck v. State, 396 So.2d 645 (Ala.1980). ‘Further, it is well established that criminal statutes should not be “extended by construction.” Locklear v. State, 50 Ala.App. 679, 282 So.2d 116 (1973).’ Ex parte Evers, 434 So.2d 813, 817 (Ala.1983).”

Ex parte Mutrie, 658 So.2d 347, 349 (Ala.1993).

Through caselaw, this Court has expanded the meaning of “forcible compulsion” in sexual offenses involving child victims to encompass situations that would not constitute “forcible compulsion” if the victim were an adult. A review of those cases proves useful to the analysis of the facts surrounding this case.

In Pittman v. State, 460 So.2d 232, 234 (Ala.Crim.App.1984), the victim testified that, when her adoptive stepfather tried to enter her room, she tried to hold the door closed, but “lost all [her] strength,” and yelled enough to wake her brothers. Her adoptive stepfather told her brothers she was merely having a nightmare. Id. The victim then followed her adoptive stepfather into her adoptive mother’s room, even though she was “scared.” Id. at 235. After the two defendants made the victim lie on the bed, her adoptive mother told her to “roll over for her daddy.” Id. The victim said, “No,” and her adoptive mother threatened, “Either you will roll over or I will tie you down.” Id. This Court held, “The force required to consummate the crime [of first-degree rape] against a mature female is not the standard for application in a case in which the alleged victim is a child thirteen years of age.” 460 So.2d at 235. Thus, although the evidence of forcible compulsion in the form of the threat issued to the victim in Pittman might not have been sufficient had the victim been an adult, because the victim was a child, the element of forcible compulsion was fulfilled by the express threat issued to the child victim by the victim’s adoptive mother.

In Parrish v. State, 494 So.2d 705, 706-07 (Ala.Crim.App.1986), the 12-year-old victim, who had gone to bed ill in her mother’s boyfriend’s mother’s house, pretended to be asleep when her mother’s boyfriend entered'the room, lay beside her on the bed, put his hand up her pants, and touched her “private parts” while holding the victim down “with his foot over my leg.” The victim testified that she was bleeding following the attack. Id. at 707. This court applied a “totality of the circumstances” approach and listed the significant facts it had considered in holding that

“[t]he force was evident from the fact that the victim was held down by the appellant, who placed his foot over her leg. Additionally, testimony concerning the physical injury suffered by the victim is an element which was properly considered by the jury in its deliberations, since the 12-year-old victim stated that she had blood in her panties after the assault.”

Id. at 711 (footnote omitted). This case broadened the inquiry into issues regarding consent and force in child-victim cases where forcible compulsion is an element of the offense to a consideration of the totality of the circumstances.

In Rider v. State, 544 So.2d 994, 994 (Ala.Crim.App.), cert. denied, 544 So.2d 997 (Ala.1989), the victim testified that her stepfather showed her adult movies, and, as they watched the movies, he “ ‘would force [her] hand on one of his private spots ... [bjetween his legs.’ (Emphasis added.)” She testified that her stepfather “ ‘asked’ ” her to or “ ‘made’ ” her touch his “private part” with her mouth. Id. The victim testified that she knew “ ‘it was wrong,’ ” but that she did not tell anyone because her stepfather told her that, if she told anyone, “ ‘he would probably go to jail.’ ” Id. at 995. Considering the totality of the circumstances, the Court reversed the judgment of the trial court and rendered a judgment for the defendant, finding:

“There are two kinds of forcible compulsion. First, forcible compulsion may be that physical force which overcomes earnest resistance. Second, forcible compulsion may be a threat, either express or implied, that places a person in fear of immediate death or serious physical injury to himself or another person. Here, it is clear that there is absolutely no evidence to support this second type. The problem is whether there is any evidence to support the first type.
“There is evidence that some physical force was involved because the victim testified that the defendant ‘forced’ her hand on his ‘private spot.’ With regard to this first type of forcible compulsion, there must also be some evidence of earnest resistance, which, as we noted in Richards [v. State, 475 So.2d 893, 896 (Ala.Crim.App.1985) ], requires some ‘genuine physical effort ... [by the victim] to discourage and prevent her assailant from accomplishing his intended purpose.’ We fail to find any earnest resistance. Parrish stretched the concepts of forcible compulsion and earnest resistance to their outermost limits.”

Id. at 996. Rider, then, limited Parrish’s apparently broad holding.

In Powe v. State, 597 So.2d 721, 723 (Ala.1991), the watershed in this line of cases, the father of the 11-year-old victim instructed her to get in the bed with him on her mother’s side of the bed, told her to get on top of him and physically lifted her on top of him, fondled her, and had sexual intercourse with her. The victim “stated that her father did not expressly threaten her before or during the incident, [but] she did testify that she was afraid of her father.” Id. In finding sufficient evidence of forcible compulsion in this case, the Court distinguished Pittman and Parrish on the basis that “those cases, respectively, concern evidence of physical force and evidence of an express threat.” The Court also distinguished Rider because the Court found “that the evidence in the present case, unlike the evidence in Rider, merits an analysis of whether, viewing the totality of the circumstances, a jury could properly find that an implied threat was made against the victim sufficient to satisfy the element of forcible compulsion.” 597 So.2d at 726. As this analysis was an issue of first impression, the Court turned to other jurisdictions for guidance. The Court adopted the rationale from two cases from other jurisdictions, State v. Etheridge, 319 N.C. 34, 352 S.E.2d 673 (1987), and Commonwealth v. Rhodes, 510 Pa. 537, 510 A.2d 1217 (1986). The Court recited Etheridge’s holding as “a child’s general fear of a parent can suffice as the force necessary to commit a forcible sexual assault. 352 S.E.2d at 682.” Powe, 597 So.2d at 726. The Court quoted applicable passages from Etheridge:

“ ‘Sexual activity between a parent and a minor child is not comparable to sexual activity between two adults with a history of consensual intercourse. The youth and vulnerability of children, coupled with the power inherent in a parent’s position of authority, creates a unique situation of dominance and control in which explicit threats and displays of force are not necessary to effect the abuser’s purpose.’
“ ‘The child’s knowledge of his father’s power may alone induce fear sufficient to overcome his will to resist, and the child may acquiesce rather than risk his father’s wrath. As one commentator observes, force can be understood in some contexts as the power one need not use. Estrich, Rape, 95 Yale L.J. 1087, 1115 (1986).
“ ‘In such cases the parent wields authority as another assailant might wield a weapon. The authority itself intimidates; the implicit threat to exercise it coerces.’
319 N.C. at 48, 352 S.E.2d at 681-82.”

Powe, 597 So.2d at 726-27 (emphasis added). The Court also quoted the relevant portions of the Rhodes opinion, including the following passage:

“ ‘There is an element of forcible compulsion, or the threat of forcible compulsion that would prevent resistance by a person of reasonable resolution, inherent in the situation in which an adult who is with a child who is younger, smaller, less psychologically and emotionally mature, and less sophisticated than the adult, instructs the child to submit to the performance of sexual acts. This is especially so where the child knows and trusts the adult. In such cases, forcible compulsion ... derives from the respective capacities of the child and the adult sufficient to induce the child to submit to the wishes of the adult ... without the use of physical force or violence or the explicit threat of physical force or violence.’
510 Pa. at 557, 510 A.2d at 1227.”

Powe, 597 So.2d at 728.

Thus, in Powe, with the reasoning of Rhodes and of Etheridge as a backdrop, the Alabama Supreme Court enlarged the concept of forcible compulsion, particularly the idea that an implied threat could constitute forcible compulsion, in those situations where the victim is a child and the perpetrator is an adult with a “dominant role” in the victim’s life. The Court held that the evidence was sufficient to support the verdict for first-degree rape based on the following facts: the defendant was the victim’s natural father; the defendant was married to the victim’s mother and lived in the home with the victim and her mother; the defendant was 40 years old and the victim was 11 years old; the encounter occurred in the victim’s parents’ bedroom when no one else was at home; and the victim indicated that she was afraid of her father. Id. at 728. The Court explained its holding:

“At this point, however, we note that our holding in this case is limited to cases concerning the sexual assault of children by adults with whom the children are in a relationship of trust. The reason for the distinction between cases involving children as victims and those involving adults as victims is the great influence and control that an adult who plays a dominant role in a child’s life may exert over the child. When a defendant who plays an authoritative role in a child’s world instructs the child to submit to certain acts, an implied threat of some sort of disciplinary action accompanies the instruction. If the victim is young, inexperienced, and perhaps ignorant of the ‘wrongness’ of the conduct, the child may submit to the acts because the child assumes that the conduct is acceptable or because the child does not have the capacity to refuse. Moreover, fear of the parent resulting from love or respect may play a role as great as or greater than that played by fear of threats of serious bodily harm in coercing a child to submit to a sexual act. Note, State v. Etheridge: The General Fear Theory and Intrafamilial Sexual Assault, 66 N.C. L.Rev. 1177, 1185 (1988).
“Our holding in this case establishes a mechanism by which the unique relationship between children and the adults who exercise a position of domination and control over them may be taken into consideration in determining whether the element of forcible compulsion has been established. To hold otherwise would be to require a child to be mangled, to see a deadly weapon, or to hear the actual utterance of specifically threatening words before a jury would be authorized to discern a rational fear of violence. Making these criteria absolute would be ignoring reality. See McQueen v. State, 423 So.2d 800 (Miss.1982) (Hawkins, J., dissenting).”

Powe, 597 So.2d at 728-29 (emphasis added). See also Howell v. State, 636 So.2d 1260, 1263 (Ala.1993) (holding that, taking into consideration the totality of the circumstances, the 20-year-old stepdaughter victim continued to be subject to Howell’s parental authority, and thus the evidence was “minimally sufficient” to support jury’s finding of forcible compulsion).

In B.E. v. State, 778 So.2d 863 (Ala.Crim.App.2000), this Court, in a 3-2 decision, extended the dominant-position/implied-threat theory of forcible compulsion and broadened its application to a fact situation where an older sibling of the victim was the accused. In B.E., the victim was 5 years old at the time of the incident and the appellant, her half brother, was 14 years old. The victim testified that the appellant was babysitting her while her parents were at work and that the appellant removed her clothes and sexually assaulted her. The victim also testified that the appellant “told her not to tell anyone about the incident, and that, if she did, he would not let her back into his room.’ ” 778 So.2d at 866. The majority invoked Powe, Rhodes, and Howell to bolster its holding that

“[c]onsidering the circumstances here— the abuse being committed by a significantly older and bigger male family member who was exercising sole custodial control over the victim at the time of the alleged acts — we find that the evidence was sufficient to present a question for the trier of fact as to whether the acts against A.S. were accomplished by forcible compulsion.”

778 So.2d at 866. The court found Powe to be applicable because, although the Alabama Supreme Court specifically limited its holding to those situations where an adult has been charged with raping a child victim, “the focus in Powe is on the child victim and the perspective should be that of the child victim.” Id. It would seem that B.E. drew the outermost limit of those factual situations, devoid of physical force, meaningful threats, and coercion, that would culminate in a conviction for rape.

Powe and its progeny were applicable in B.E., if at all, because the victim testified that the appellant was babysitting her when the incident occurred. Thus, when analyzing the totality of the circumstances surrounding a sex crime involving a child victim, the relevant inquiries are whether the victim perceived a dominant relationship between herself and the accused, and whether the accused’s use of that relationship to his advantage constituted an implied threat sufficient to fulfill the requisite element of forcible compulsion necessary to support a conviction for rape.

The majority maintains that sufficient evidence of forcible compulsion existed because J.A.P. was four and a half years older than L.P.; that J.A.P. and L.P. were alone at the time of the incident; and that J.A.P. instructed L.P. not to tell anyone about the incident. The majority also points out that L.P. testified that she was always afraid and that she was “made” to watch pornographic videos. However, the majority also states that its holding is based on its consideration of “the extent to which the appellant may have been in a position of domination or influence over the victim.” 853 So.2d at 269 (emphasis added). In this case, there is no evidence that J.A.P. was in a dominant or influential position over L.P.

The trial court found that the State had proven attempted rape, essentially because sexual abuse of the victim had become a “habit and pattern of her brothers and their friends.” (R. 209.) However, after reviewing the record and taking into consideration the totality of the circumstances as they concern this defendant alone, the evidence of “forcible compulsion” to support J.A.P.’s adjudication of delinquency based on the underlying charge of attempted first-degree rape was not only insufficient, but essentially nonexistent. Although J.A.P. was older than L.P., and although the two were alone during the incident, no evidence suggested that J.A.P. was fulfilling a caretaker or custodial capacity in regard to L.P. Testimony during the hearing revealed a family situation in which the children were allowed to spend their days with little or no adult supervision. Although J.A.P. told L.P. not to tell anyone, which is consistent with the expected behavior of children doing things they are not supposed to do, he did not threaten her with any consequences if she did tell. When asked if she was afraid of J.A.P., L.P. replied, “I am always afraid,” rather than stating specifically that she was afraid of J.A.P., as she did when asked if she was afraid of her older brother, C.P. (R. 90.) L.P. also testified that, at the time of the hearing, she was scared of “all guys.” (R. 92.) There was no evidence that L.P. was afraid of J.A.P. at the time of the incident made the basis of the complaint or that she participated in sexual activity with J.A.P. out of fear. In fact, she admitted in the interview at the shelter, with some obvious shame, that what had happened with J.A.P. felt “good.”

The facts of this case are extremely disturbing, particularly when one considers the incident between J.A.P. and L.P. in conjunction with the other alleged incidents between L.P. and C.P., between L.P. and an uncle, between L.P. and a neighbor, and between C.P. and J.A.P. However, this case involves only the one incident between J.A.P. and L.P. alleged in the petition. As Justice Almon stated in his dissent regarding the appellant in Powe, “[T]he Court’s understandable feeling that he should be punished should not cloud its judgment and lead to a distortion of the law.” 597 So.2d at 730 (Almon, J., dissenting).

This fact situation warrants judicial intervention and some sort of therapeutic disposition. Quite simply, though, to reach the disposition phase, the trial court must have sufficient evidence before it to adjudicate a juvenile delinquent. Although these facts are disturbing, and perfectly exemplify the old adage, “Bad facts make bad law,” it is my opinion that the Legislature has yet to enact a criminal statute that would encompass this situation. By virtue of J.A.P.’s age, he is not guilty of attempted statutory rape. Because there is no evidence of forcible compulsion, he is not guilty of attempted first-degree rape. See § 13A-6-61(a)(l), Ala.Code 1975.

It is completely understandable that the learned trial judge in this matter could have felt torn between a strict construction of the statute on which the petition was based and the realization that the children in this family silently cried out for the help that their parents were unwilling to provide. It is undisputed that J.A.P. was himself a victim of sexual abuse by his older brother. As a child of divorced parents both of whom had full-time jobs, his out-of-school time was devoid of adult supervision, with ready access to pornographic movies. Consequently, it is easy to conclude that, if criminal charges were to be brought, those charges should have been brought against the parents of J.A.P. and L.P., not against J.A.P. himself. The Legislature did not envision inappropriate consensual sexual activities of classic “latchkey children” when it enacted § 13A-6-61.

The majority’s understandable reaction that such a tragic situation should culminate in someone’s being punished should not lead it to stretch the law defining “forcible compulsion” to its breaking point in order to authorize that punishment. I believe that the trial court erroneously denied J.A.P.’s motion for a judgment of acquittal at the end of the State’s case-in-chief and J.A.P.’s motion for a new trial, based on its determination that the State had presented sufficient evidence of forcible compulsion to support an adjudication of delinquency based on attempted first-degree rape. It is because of this that I respectfully dissent.

      . Section 13A-6-61 was amended effective August 1, 2000. See Act No. 726, § 1, Ala. Acts 2000.

      . Prescott House is a child advocacy center that conducts interviews with children who have made allegations of physical and sexual abuse.

      . C.P. was arrested in connection with his sexual contact with the victim. At the time of the hearing he was in the Jefferson County jail. (R. 130.)

      .We note that the appellant admitted during his in-court testimony that he needed counseling. (R. 197.)

      . As the record indicates, the juvenile court rejected the appellant’s assertion that he had aborted the sexual act because he realized what he was doing was wrong. Therefore, § 13A-4-2(c) has no field of operation here.

      . Hosea 8:7 (King James).

      . J.A.P. was 13 years, 10 months old, and L.P. was 9 years, 4 months old when the mother discovered that L.P. was being abused.

      . Although the evidence presented in the hearing revealed numerous sexual encounters between L.P. and her half brothers at various residences of their mother and of their father, the particular incident made the basis of this petition for delinquency occurred in March 1999 in the mother’s apartment in Leeds, Alabama, which was attached to her beauty shop. This particular encounter is referred to as the "Leeds incident.”

      .The tape from the interview was admitted into evidence. (R. 71.)

      . The audiotape of the interview was admitted into evidence at the hearing. (R. 117.)

      . Nowhere in the interview does J.A.P. admit to removing L.P.’s clothing at any time.

      . Although the defendant in Rider was convicted of first-degree sexual abuse and of first-degree sodomy, rather than first-degree rape, he was convicted under those provisions of the statutes that require a showing of forcible compulsion. See §§ 13A-6-61(a)(1) and 13A-6~63(a)(l), Ala.Code 1975.

      . J.A.P. was 14 years old at the time of the hearing. The statutory rape sections of the Alabama Code require that the perpetrator be 16 years old:
      "A male commits the crime of rape in the first degree if ... [h]e, being 16 years or older, engages in sexual intercourse with a female who is less than 12 years old.”
      § 13A-6-61(a)(3), Ala.Code 1975.
      "A male commits the crime of rape in the second degree if, [bjeing 16 years old or older, he engages in sexual intercourse with a female less than 16 and more than 12 years old; provided, however, the actor is at least two years older than the female.”
      § 13A-6-62(a)(l), Ala.Code 1975.

      . As an alternative to adjudicating J.A.P. delinquent with insufficient evidence, the trial judge could have instead, ex mero motu, declared J.A.P. a multiple needs child. See § 12-15-1(19), Ala.Code 1975 (defining a multiple needs child as "a child coming to the attention of the court ... who is at imminent risk of out-of-home placement or a placement in a more restrictive environment, as a result of the conditions of emotional disturbance, behavior disorder, ... lack of supervision, [or] delinquency, or any combination thereof, and whose needs require the services of two or more of the following entities: Department of Youth Services, public school system (services for exceptional needs), Department of Human Resources, Department of Public Health, juvenile court probation services, or Department of Mental Health and Mental Retardation”); § 12-15-71(h)(1), Ala.Code 1975 {‘‘Regardless of the nature of the petition or allegation, when evidence is presented to the court that a child is a imminent risk of an out-of-home placement or a placement in a more restrictive environment as a result of the conditions [listed in § 12-15-1(19)], and if such conditions require the services of two or more agencies pursuant to Section 12-15-1(19), the juvenile court shall refer the child to the county children’s services facilitation team for assessment and recommendations unless a current facilitation team plan is available to the court.'’ (Emphasis added.)).


author:
WOODALL, Justice.
      BROWN, Justice STUART, Justice

text:
    Ex parte J.A.P., a minor child. (In re J.A.P. v. STATE of Alabama).
    1010263.
    Supreme Court of Alabama.
    Sept. 6, 2002.
    Rehearing Denied Nov. 27, 2002.

      Joe W. Morgan III, Birmingham, for petitioner.
    William H. Pryor, Jr., atty. gen., and Andy S. Poole and Kristi L. Deason, asst, attys. gen., for respondent.
   WOODALL, Justice.

A delinquency petition was filed in the Jefferson Juvenile Court, charging J.A.P., a 14-year-old male, with the attempted first-degree rape of his 9-year-old half sister, L.P. The charge was based on allegations that J.A.P. attempted to commit the offense of first-degree rape, as that offense is defined in § 13A-6-61(a)(l), Ala. Code 1975. See also § 13A-4-2, Ala.Code 1975. Following an evidentiary hearing, the trial court found the charge to be true and adjudicated J.A.P. delinquent.

J.A.P. appealed to the Court of Criminal Appeals, which affirmed the judgment of the trial court. See J.A.P. v. State, 853 So.2d 264 (Ala.Crim.App.2001). After the Court of Criminal Appeals overruled J.A.P.’s application for rehearing, this Court granted J.A.P.’s petition for certio-rari review. We reverse and remand.

In its opinion, the Court of Criminal Appeals adequately stated the relevant facts, and the repetition of those facts is not necessary. The delinquency petition alleged, in pertinent part, that “[J.A.P.], a male, did, with the intent to commit the crime of rape in the first degree (Section 13A-6-61 of the Alabama Criminal Code), attempt to engage in sexual intercourse with [L.P.], a female, by forcible compulsion.” (Emphasis added.) Section 13A-6-61(a)(l) provides: “A person commits the crime of rape in the first degree if: (1) He or she engages in sexual intercourse with a member of the opposite sex by forcible compulsion.” (Emphasis added.) Section 13A-6-60(8), Ala.Code 1975, defines “forcible compulsion” as: “Physical force that overcomes earnest resistance or a threat, express or implied, that places a person in fear of immediate death or serious physical injury to himself or another person.”

On appeal, J.A.P. argued that there was insufficient evidence to support the finding that he had used forcible compulsion in an attempt to engage in sexual intercourse with L.P. However, the Court of Criminal Appeals held that the evidence was sufficient to allow the trial court to infer the element of forcible compulsion, and it affirmed the trial court’s judgment based upon B.E. v. State, 778 So.2d 863 (Ala.Crim.App.2000). Before this Court, J.A.P. argues that the holding of the Court of Criminal Appeals conflicts with its prior holding in Rider v. State, 544 So.2d 994 (Ala.Crim.App.1989).

In Rider, the Court of Criminal Appeals considered whether a 27-year-old defendant had used forcible compulsion when he sexually abused and sodomized his 9-year-old stepdaughter. The court stated the following relevant facts:

“The defendant is the 27-year-old stepfather of the victim. The victim testified that, when she and the defendant were sitting on the sofa alone, the defendant would put a movie on the VCR showing ‘people have sex.’ She testified that as they watched the movie, the defendant “would force [her] hand on one of his private spots ... [b]etween his legs.’ (Emphasis added [in Rider].) After the movie, the defendant ‘took [her by the hand] back to the bedroom and touched [her] private part[s] ... [between [her] legs and on [her] chest.’ When this touching occurred, both the defendant and the victim were undressed. The victim testified that the defendant touched her private part with his mouth and that the defendant ‘asked’ or ‘made’ her touch his private part with her mouth.
“This touching began after the victim’s ninth birthday and continued until around her twelfth birthday. The defendant told her not to tell anyone ‘because he would probably go to jail.’ The victim testified that, after each incident, he usually told her he was sorry and promised that it would not happen again.
“When the prosecutor asked the victim if she ‘voluntarily’ performed oral acts on the defendant, the victim did not answer. The victim testified that she tried to ‘mind’ her stepfather because she ‘liked the way he treated [her], like [she] was his only child,’ and she considered him her father. The victim testified that she did not have a father when she was born and when she was ‘a little baby.’ The victim’s mother married the defendant when the victim was seven. On direct examination, the victim explained her passive conduct:
“ ‘Q. Okay. The things that Robin did to you, why did you let him do those things to you? Why didn’t you scream and yell and scratch him and claw him and all of that? Why did you, you know, just why did you let him do those things to you?
“‘A. Because I thought if I would stop, that he wouldn’t treat me the way he did.’
“On cross-examination, the victim testified that she knew ‘it was wrong.’ She was ‘afraid’ to tell her mother and did not know how her mother would ‘react.’ She did not tell her grandmother because she ‘thought it would break her heart.’ She did not tell anyone because she did not want the defendant to go to jail. She stated that the defendant had never done anything to make her afraid of him and that she was not afraid of him.”

Rider, 544 So.2d at 994-95 (footnote omitted). Regarding forcible compulsion, an element of the offenses of sexual abuse in the first degree and sodomy in the first degree, the Court of Criminal Appeals stated in Rider:

“There are two kinds of forcible compulsion. First, forcible compulsion may be that physical force which overcomes earnest resistance. Second, forcible compulsion may be a threat, either express or implied, that places a person in fear of immediate death or serious physical injury to himself or another person.”

544 So.2d at 996. Although the court found evidence indicating that physical force was involved, it found no evidence of any earnest resistance. Also, the Court of Criminal Appeals stated that “it [was] clear that there [was] absolutely no evidence to support [the] second type [of forcible compulsion].” Id.

In Powe v. State, 597 So.2d 721 (Ala.1991), the defendant had been convicted of first-degree rape of his 11-year-old daughter. The sole issue was whether the evidence was sufficient to support the jury’s finding that the defendant had had sexual intercourse with his daughter through the use of forcible compulsion. The Court summarized the facts relevant to that issue:

“The record in this case reveals the following pertinent facts: The alleged victim, N.S., testified that Willie Powe is her natural father and that sometime during the month of May 1988, he sexually assaulted her. N.S. was 11 years old at the time of the alleged incident. “N.S. stated that the incident took place in her parents’ bedroom when no one, other than N.S. and her father, was at home. N.S. testified that she and her father had been arm wrestling while she was on the floor and her father was on the bed. She testified that at some point her father told her that it was time to take a nap and that he told her to lie on her mother’s side of the bed. N.S. said she did as her father told her, while her father lay on the other side of the bed. Thereafter, N.S. said, Powe told her that he was cold, and she said he told her to get on top of him. Again, N.S. said, she obeyed her father. N.S. further testified that her father physically lifted her up on top of him. She stated that at this point she was lying lengthwise on top of her father.
“N.S. testified that next her father unbuttoned and unzipped her pants, put his hand inside her panties, and touched her pubic hair. N.S. testified, on direct examination, that after her father touched her pubic hair, he then pulled down the hospital-type scrub pants that he was wearing and put his penis inside her vagina. Although this testimony conflicted somewhat with her response to certain questions on cross-examination, N.S. was recalled to the witness stand by the prosecution later in the trial and once again testified that her father did put his penis inside her vagina.
“N.S. testified that after her father had put his penis inside her vagina, he then told her to get up and go and lock the door in the living room, which N.S. did. N.S. stated that she then went back to the bedroom, but that she did not get back on the bed with her father. Rather, N.S. stated, she combed her hair and got ready to go over to her best friend’s house. N.S. testified that before she left her house, her father called her back into her mother’s bedroom and told her that she was ‘acting like a baby.’
“N.S. testified that she had lain on top of her father for about two minutes and that it was about four or five minutes between the time that she got off her father and the time that she left the house. Although N.S. stated that her father did not expressly threaten her before or during the incident, she did testify that she was afraid of her father.”

Powe, 597 So.2d at 722-23. According to this Court, the record in that case “reveal[ed] no evidence that physical force was used on the victim or that the victim was expressly threatened.” 597 So.2d at 726.

In Powe, the parties cited Rider, which this Court described as involving “neither a threat of any kind nor the use of any physical force. Furthermore, there was nothing in the record [in Rider] to show that the sex acts were anything other than voluntary.” 597 So.2d at 726. This Court then distinguished Rider, stating:

“[W]e distinguish the Rider case because we find that the evidence in the present case, unlike the evidence in Rider, merits an analysis of whether, viewing the totality of the circumstances, a jury could properly find that an implied threat was made against the victim sufficient to satisfy the element of forcible compulsion. Such an analysis, however, presents an issue of first impression for the appellate courts of this state.,..”

597 So.2d at 726.

After reviewing cases from other jurisdictions, this Court concluded that the evidence was sufficient to support a finding of forcible compulsion, because “a jury could reasonably infer that Powe held a position of authority and domination with regard to his daughter sufficient to allow the inference of an implied threat to her if she refused to comply with his demands.” 597 So.2d at 728. That holding was extremely narrow, as this Court clearly emphasized:

“At this point, however, we note that our holding in this case is limited to cases concerning the sexual assault of children by adults with whom the children are in a relationship of trust. The reason for the distinction between cases involving children as victims and those involving adults as victims is the great influence and control that an adult who plays a dominant role in a child’s life may exert over the child. When a defendant who plays an authoritative role in a child’s world instructs the child to submit to certain acts, an implied threat of some sort of disciplinary action accompanies the instruction. If the victim is young, inexperienced, and perhaps ignorant of the ‘wrongness’ of the conduct, the child may submit to the acts because the child assumes the conduct is acceptable or because the child does not have the capacity to refuse. Moreover, fear of the parent resulting from love or respect may play a role as great as or greater than that played by fear of threats of serious bodily harm in coercing a child to submit to a sexual act.
“Our holding in this case establishes a mechanism by which the unique relationship between children and the adults who exercise a position of domination and control over them may be taken into consideration in determining whether the element of forcible compulsion has been established. To hold otherwise would be to require a child to be mangled, to see a deadly weapon, or to hear the actual utterance of specifically threatening words before a jury would be authorized to discern a rational fear of violence. Making these criteria absolute would be ignoring reality.”

Id. at 728-29 (emphasis added). This Court made it quite clear that its holding would apply only to cases involving the sexual assault of children by adults who exercised positions of domination and control over the children.

In B.E. v. State, supra, the Court of Criminal Appeals, contrary to the limitations of the Powe holding, extended Powe’s forcible-compulsion analysis and affirmed an adjudication of delinquency based upon the juvenile court’s finding that B.E., a 14-year-old male, had committed first-degree sexual abuse and first-degree sodomy of his half sister, who was 5 years old at the time of the incident. Specifically, the Court of Criminal Appeals failed to acknowledge “that [this Court’s] holding in \Powé\ is limited to cases concerning the sexual assault of children by adults with whom the children are in a relationship of trust.” Powe, 597 So.2d at 728. Therefore, to the extent it conflicts with Powe, we overrule B.E.

The Court of Criminal Appeals’ affir-mance of the judgment of the trial court adjudicating J.A.P. to be delinquent was based solely upon its decision in B.E. Because we are overruling B.E., we must reverse the judgment of the Court of Criminal Appeals and remand this case for an order consistent with this opinion.

REVERSED AND REMANDED.

HOUSTON, SEE, LYONS, JOHNSTONE, and HARWOOD, JJ„ concur.

BROWN, J., concurs in part and dissents in part as to the rationale and concurs in the result.

MOORE, C.J., and STUART, J., dissent.

BROWN, Justice

(concurring in part and dissenting in part as to the rationale and concurring in the result).

I concur in the result reached in the majority opinion, which reverses the judgment of the Court of Criminal Appeals affirming the judgment of the trial court adjudicating J.A.P. delinquent because I do not believe the evidence before us is sufficient to establish the element of forcible compulsion.

I respectfully dissent, however, from the majority’s overruling of B.E. v. State, 778 So.2d 868 (Ala.Crim.App.2000). I agree with the Court of Criminal Appeals’ statement in B.E.:

“[T]he focus in Powe[ v. State, 597 So.2d 721 (Ala.1991) ] is on the child victim and the perspective should be that of the child victim; accordingly, where there is a significant enough difference in age or physical maturity between the defendant and the victim, and the defendant occupies a position of authority or control over the victim, forcible compulsion may exist whether or not the defendant is legally an adult.”

778 So.2d at 866.

I believe this statement is a logical extension of Powe v. State, 597 So.2d 721 (Ala.1991), which, as the majority opinion notes, states:

“When a defendant who plays an authoritative role in a child’s world instructs the child to submit to certain acts, an implied threat of some sort of disciplinary action accompanies the instruction. If the victim is young, inexperienced, and perhaps ignorant of the “wrongness’ of the conduct, the child may submit to the acts because the child assumes that the conduct is acceptable or because the child does not have the capacity to refuse.”

597 So.2d at 728-29 (emphasis added).

Thus, I do not believe B.E. should be overruled.

STUART, Justice

(dissenting).

I respectfully dissent from the majority opinion, which reverses the judgment of the Court of Criminal Appeals affirming the juvenile court’s adjudication of J.A.P. as delinquent and which overrules B.E. v. State, 778 So.2d 863 (Ala.Crim.App.2000). The Court of Criminal Appeals’ affirmance is based on a well-reasoned application of established law to the facts of this case. As the Court of Criminal Appeals stated in J.A.P. v. State, 853 So.2d 264, 269 (Ala.Crim.App.2001):

“[T]he focus in cases of this kind, as the Alabama Supreme Court recognized in Powe v. State, 597 So.2d 721 (Ala.1991), must be on the child victim and ... the issue of the sufficiency of the evidence to support a finding of forcible compulsion must be resolved by viewing the totality of the evidence from the perspective of the child victim. ... [I]n close cases of this nature, the juvenile court is in a unique position to assess the credibility of the witnesses and to determine whether a young child was physically compelled or psychologically coerced or conditioned by years of sexual abuse into participating in a sex act with an older child.”


author: SHAW, Judge.

text:
    J.A.P. v. STATE of Alabama.
    CR-99-2339.
    Court of Criminal Appeals of Alabama.
    Jan. 31, 2003.

      Joe W. Morgan III, Birmingham, for appellant.
    William H. Pryor, Jr., atty. gen.; and Kristi L. Deason and Andy Scott Poole, asst, attys. gen., for appellee.
   On Remand from the Alabama Supreme Court

SHAW, Judge.

Pursuant to the Alabama Supreme Court’s opinion in Ex parte J.A.P., 853 So.2d 280 (Ala.2002), the judgment of the juvenile court is reversed and a judgment rendered in J.A.P.’s favor.

REVERSED AND JUDGMENT RENDERED.

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


author: McMILLAN, Presiding Judge.

text:
    Phyllis Willcut RICHEY v. STATE.
    CR-01-0371.
    Court of Criminal Appeals of Alabama.
    March 1, 2002.

      Phyllis Richey, pro se.
    William H. Pryor, Jr., atty. gen., and J. Thomas Leverette, asst. atty. gen., for ap-pellee.
   McMILLAN, Presiding Judge.

Phyllis Willeut Richey was convicted of the following: (1) driving on the wrong side of the road; (2) driving under the influence (“DUI”); and (3) two counts of murder resulting from a DUI-related automobile accident. She was fined $100 for the conviction for driving on the wrong side of the road and $1000 for her DUI conviction. She was sentenced to one year’s imprisonment in the Lauderdale County jail for the DUI conviction and to life imprisonment in the custody of the Department of Corrections for each of the two murder convictions. All the sentences were ordered to be served concurrently. The Court affirmed Richey’s convictions by an unpublished memorandum, Richey v. State, 778 So.2d 875 (Ala.Crim.App.1999) (table).

Richey has now filed a Rule 32, Ala. R.Crim. P., petition, attacking her convictions. The State moved to dismiss, arguing that the claims raised in the petition were all either proeedurally barred or without merit. The trial court summarily dismissed the petition on the grounds pleaded by the State — Richey appealed.

Richey presents nine issues in her brief to this Court. Her Rule 32 petition contained additional issues that she does not argue on appeal. Accordingly, she is deemed to have abandoned these issues, and this Court need not address them. Brownlee v. State, 666 So.2d 91 (Ala.Crim.App.1995).

Richey contends that she was not afforded a fair trial. First, she argues that the trial court erred in charging her with murder, under § 13A-6-2, Ala.Code 1975. Because the victims were killed in a DUI-related automobile accident, Richey believes that the proper charge for the two murder offenses was homicide by vehicle or vessel, see § 32-5A-192, Ala.Code 1975, rather than murder.

Next, she claims that the trial court erred in failing to indict the three passengers in her vehicle at the time of the accident for complicity under § 13A-2-23, Ala.Code 1975. She also argues that the trial court erred in allowing evidence of her activities the night before the accident to be presented to the jury. She states that on the night before the accident, she was arrested and charged with DUI in connection with a hit-and-run accident. Because she had been charged with, but not convicted of, these offenses at the time of her trial for the murder offenses, she asserts that evidence of her arrest was improperly admitted.

Richey also argues that, because of what she says was an excessive amount of publicity surrounding this crime, the trial court erred in denying her motion for a change of venue. She further argues that the jury was tainted by the publicity surrounding her case, as well as by the fact that her automobile was parked in the parking lot of the Lauderdale County courthouse during the trial and by photographs of the victims that were introduced into evidence. She contends, also, that the steering wheel from her vehicle was improperly admitted into evidence because, she says, it had been “handled and touched by several people, then removed from the car and placed on the road behind [her] vehicle at the scene of the accident.” Richey next contends that her Fourth Amendment rights were violated. She states that she was unconscious immediately after the accident and that any of the three passengers in the vehicle could have tampered with evidence before the state trooper who responded to the accident arrived on the scene. Richey argues that, during this time, the steering wheel was removed from the vehicle and that alcohol and marijuana were placed in the vehicle. She contends that, because she was unconscious immediately following the accident, she was obviously unable to consent to a search of the vehicle, and this evidence, therefore, was the product of an illegal search and seizure and was wrongfully admitted at trial.

In Issue III in her brief to this Court, Richey argues that the State withheld evidence from her trial counsel. Specifically, she alleges that “counsel was not aware of the steering wheel and the pictures of the wreck that showed only the deceased.”

Richey’s fourth issue is that the principle of double jeopardy was violated because she was tried for two counts of murder when both deaths arose from the same incident. In the alternative, Richey also argues that the admission of evidence of her actions the night before the accident subjected her to double jeopardy.

Richey alleges that both her trial counsel and her appellate counsel rendered ineffective assistance. She argues that her attorney was ineffective for the following reasons: (1) counsel failed to preserve for appeal the issue of the admission into evidence of Richey’s actions the night before the accident; (2) counsel failed to interview and subpoena witnesses and to investigate the evidence; (3) counsel failed to raise on appeal the issue of venue; (4) counsel failed to object at trial to the alleged illegal search and seizure of evidence from her vehicle; (5) counsel failed to examine the physical evidence in this case; (6) counsel failed to adequately communicate with her before and during her trial and pending the outcome of her appeal; and (7) counsel failed to request the trial court to instruct the jury on the lesser-included offenses of murder.

Richey next argues that her sentence was excessive. She reiterates her belief that she was erroneously indicted for murder, instead of for homicide by vehicle or vessel, and that the trial court improperly admitted evidence that she was arrested for DUI on the night before the accident. She contends that these two factors contributed strongly to the trial court’s decision to sentence her to two terms of life imprisonment. Richey further argues that the trial court should have taken the following mitigating factors into consideration: (1) that she was a first-time offender; (2) that she had children; (3) that she was a college graduate; and (4) that she lost her right leg as a result of the automobile accident in which the victims were killed.

In Issue VII in her brief to this Court, Richey argues that newly discovered evidence requires her conviction and sentence to be vacated. She states that she was advised by a fellow inmate that one of the passengers in her vehicle had admitted that he was driving the vehicle at the time of the accident. However, Richey also admits that another person, Sheila Duncan, had previously provided her with this same information, and the trial transcript indicates that Duncan testified at trial.

Richey’s eighth argument simply argues that if all of the information contained in her Rule 32 petition and in her appellate brief had been before the trial court, she would not have been convicted of murder.

Finally, Richey claims that she is innocent of the crime of murder. She contends that, because she was intoxicated at the time of the automobile accident, she lacked the requisite intent for this offense.

Issues I, II, III, IV, VI, VII, VIII, and IX are procedurally barred from review. The proper time for Richey to have raised these issues was either at trial or on direct appeal. Richey’s claim that the trial court improperly admitted evidence of her prior arrest for DUI was the sole issue raised on direct appeal. It is therefore barred by Rule 32.2(a)(4), Ala. R.Crim. P., as it has previously been argued. Issue VII, which purports to be a claim of newly discovered evidence, presents only a claim which was argued at trial and is consequently barred by Rule 32.2(a)(2). The remaining claims contained in Issues I, II, III, IV, VI, VIII, and IX are precluded by Rules 32.2(a)(3) and (5).

In Issue V, Richey raises seven ineffective-assistance-of-counsel claims. Claims 3 and 4 are raised for the first time on appeal and are not properly before this Court. Lawhorn v. State, 756 So.2d 971 (Ala.Crim.App.1999). The remaining claims must satisfy the two-pronged test outlined in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674,(1984), in order for her to prevail on her claims of ineffective assistance of counsel. Williams v. State, 480 So.2d 1265 (Ala.Crim.App.1985). The Strickland test requires the appellant to prove not only that counsel’s performance was deficient, but that the deficiency prejudiced the appellant. This Court indulges a strong presumption that trial counsel’s representation was sufficient and that he did provide the appellant with effective assistance of counsel. Hallford v. State, 629 So.2d 6 (Ala.Crim.App.1992).

Claims 2, 5, and 6 allege that trial counsel was ineffective for his failure to interview witnesses, examine evidence, and communicate with Richey. These claims against counsel are no more than bare allegations that his representation was deficient. Richey has offered no facts to support these three claims, and she is not entitled to postconviction relief on these grounds.

Claim 7 argues that trial counsel’s failure to request jury instructions on the lesser-included offenses which are encompassed by the crime of murder constituted ineffective assistance of counsel. The record on direct appeal reveals, however, that the trial court thoroughly instructed the jury on the offenses of manslaughter, criminally negligent homicide, and vehicular homicide, as well as on the offense of murder. Because the trial court did instruct the jury on the lesser-included offenses, Richey cannot argue that trial counsel’s failure to request such an instruction was an error which frustrated her defense at trial.

However, Richey’s claim that counsel was ineffective for failing to preserve for appellate review the issue of the trial court’s admission of evidence of the events of the night prior to the accident is meritorious on its face. The trial court must be afforded the first opportunity to determine whether an appellant was denied effective assistance of counsel. Because the trial court’s order did not make findings as to this issue, we remand this matter to the Lauderdale Circuit Court for that court to conduct further proceedings, if necessary, and to make findings as to this claim. Due return shall be made to this court within 60 days of the date of this opinion.

REMANDED WITH DIRECTIONS.

COBB, BASCHAB, SHAW, and WISE, JJ., concur.

      . Richey was represented by the same attorney at trial and on direct appeal.

      . This Court may take judicial notice of its own records on direct appeal when reviewing a Rule 32 petition. State v. Gagliardi, 747 So.2d 366 (Ala.Crim.App.1999).

      . We note that a claim regarding the trial court's admission of this evidence was raised on direct appeal and that this Court held that it had not been preserved for appellate review.


author: WISE, Judge.

text:
    Mario Stevenson MURPH v. STATE of Alabama.
    CR-01-0569.
    Court of Criminal Appeals of Alabama.
    April 26, 2002.
    Mario Stevenson Murph, pro se.
    William H. Pryor, Jr., atty. gen., and Jean-Paul M. Chappell, asst. atty. gen., for appellee.
   WISE, Judge.

On September 24, 1999, the appellant, Mario Stevenson Murph, entered a plea of guilty to the charge of capital murder. After hearing the evidence, a jury found Murph guilty. Pursuant to a plea agreement, the trial court sentenced him to life imprisonment without the possibility of parole. Murph did not appeal his conviction. On October 1, 2001, acting pro se, he filed a Rule 32, Ala.R.Crim.P., petition, challenging his conviction. After the State responded, the circuit court summarily denied the petition. This appeal followed.

In his petition, Murph, an African-American, claimed that trial counsel had rendered ineffective assistance 1) when he failed to file pretrial motions to dismiss on the grounds that the district court never acquired jurisdiction, that the charges were defective in that he was never properly arrested pursuant to a valid warrant, and that there had been no probable cause determination in district court; 2) when he failed to challenge the indictment based on the accusation that the grand jury foreperson is chosen in a discriminatory fashion; and 3) when he failed to appeal appellant’s conviction after he was instructed to file a notice of appeal.

In conjunction with his Rule 32 petition, Murph also filed a motion for postconviction discovery. In his motion, Murph asked the court to provide him with 1) a fist of grand jury forepersons from 1980-2000, including information on their ages, races and genders; 2) a copy of the coroner’s inquest in his case; 3) a transcript of the plea colloquy; and 4) the case action summary sheet from his case.

On October 23, 2001, the State filed a response and a motion for summary dismissal of Murph’s Rule 32 petition. In its response, the State argued that his claims were precluded, were not pleaded with the required specificity, lacked merit, and/or were due to be dismissed because no material issue of fact or law exists that would entitle Murph to relief. Additionally, the State filed a substantial amount of evidence in support of its motion for summary dismissal, including a detailed statistical study showing that the selection of the grand jury foreperson is random and not discriminatory. Moreover, the information provided by the State showed that the grand jury foreperson in Murph’s case was African-American. On October 29, 2001, the trial court granted the State’s motion for summary dismissal, stating that the Rule 32 petition was without merit. Murph filed a response to the State’s motion for summary dismissal on October 30, 2001, the day after the trial court denied his petition. In his response, Murph waived issue one of his petition.

On appeal, Murph claims: 1) that the trial court erred by summarily denying his petition without conducting an evidentiary hearing; 2) that the trial court erred in denying his motion for postconviction discovery regarding information about the selection of grand jury forepersons to support his claim that his trial counsel was ineffective for not raising this issue; and 3) that the trial court erred by summarily denying his petition without conducting an evidentiary hearing on the issue whether his counsel was ineffective for failing to file an appeal because this issue was unrefuted by the State.

Rule 32.7(d), Ala.R.Crim.P., provides for the summary disposition of a Rule 32 petition only

“[i]f the court determines that the petition is not sufficiently specific [in violation of Rule 32.6(b)], or is precluded [under Rule 32.2, Ala.R.Crim.P.], or fails to state a claim, or that no material issue of fact or law exists which would entitle the petitioner to relief under this rule and that no purpose would be served by any further proceedings.... ”

The circuit court properly summarily disposed of Murph’s motion for postconviction discovery and his claim regarding ineffective assistance of counsel based on counsel’s failure to challenge the alleged discriminatory selection of the grand jury foreperson. It is settled Alabama law that an appellant must satisfy the two-pronged test outlined in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), in order to successfully argue an ineffective assistance of counsel claim. Williams v. State, 480 So.2d 1265 (Ala.Crim.App.1985). The Strickland test requires the appellant prove not only that counsel’s performance was deficient, but that the deficiency prejudiced the appellant. This Court indulges a strong presumption that counsel’s representation was sufficient and did provide the appellant effective assistance. Hallford v. State, 629 So.2d 6 (Ala.Crim.App.1992). After carefully considering his claims, including statistical data from Lee County and evidence that the grand jury foreperson at Murph’s trial was African American, we find that Murph failed to demonstrate that his counsel’s perform-anee was deficient or that he was prejudiced by any alleged deficiency. Murph failed to sufficiently plead facts that would entitle him to relief; consequently, the postconviction discovery motion was correctly denied.

However, it appears, and the State agrees, that Murph’s allegation that his counsel was ineffective for failing to file an appeal after being instructed to do so may be meritorious on its face, because this issue was unrefuted by the State in its response to Murph’s Rule 32 petition. Therefore, we remand this cause to the circuit court in order for it to address this sole allegation of ineffective assistance of counsel. The circuit court shall either conduct an evidentiary hearing addressing this claim and make specific findings of fact, Rule 32.9(a) and (d), Ala.R.Crim.P.; “take evidence by affidavits, written interrogatories, or depositions, in lieu of an evidentiary hearing” and make specific findings of fact, Rule 32.9(a) and (d); or, “ ‘[i]f the circuit judge has personal knowledge of the actual facts underlying the allegations in the petition,’ ” he may summarily deny the petition, but he nonetheless must state his reasons for the denial in a written order, Monroe v. State, 659 So.2d 975, 977 (Ala.Crim.App.1994) (quoting Sheats v. State, 556 So.2d 1094, 1095 (Ala.Crim.App.1989)). Due return shall be made to this Court within 42 days of the date this opinion is issued.

REMANDED WITH DIRECTIONS.

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