author: COBB, Judge.

text:
    Gary HOUSTON v. STATE of Alabama.
    CR-04-0480.
    Court of Criminal Appeals of Alabama.
    Aug. 26, 2005.
    Rehearing Denied Oct. 7, 2005.
    Certiorari Denied Dec. 9, 2005 Alabama Supreme Court 1050156.

      John B. Langland, Huntsville, for appellant.

      Troy King, atty. gen., and Daniel W. Madison, asst. atty. gen., for appellee.
   COBB, Judge.

On June 15, 2004, Gary Houston was convicted of first-degree theft of property by deception, a violation of § 13A-8-2, Ala. Code 1975. On August 25, 2004, he was sentenced to five years’ imprisonment; that sentence was suspended, and he was placed on supervised probation for two years and ordered to pay restitution, court costs, and a victim’s compensation assessment. Houston filed a motion for a new trial which the trial court denied on November 5, 2004.

The record reflects that Houston purchased a Ford 1100 lawn tractor at the online auction site “eBay” from Robert Brent Pepper for $2,400. According to Pepper, the auction listing contained a picture of the tractor, as well as details about the tractor. Pepper testified that Houston contacted him shortly after the auction ended and questioned him about specific details about the tractor. Pepper testified that v-shaped tires were customary for that type of tractor. According to Pepper, he advised Houston that the tires on the tractor were Goodyear brand Wrangler tires rather than “turf tires” as were listed in the description of the tractor on eBay; Pepper stated that he told Houston that it was common to place that type of tire on the size of tractor and that Houston “really didn’t say much about the tires.” (R. 39.) Pepper testified that although he indicated in the auction description that payment was required from the winning bidder within seven days of the close of the auction, Houston did not tender payment to Pepper within that time. Rather, according to Pepper, at Houston’s request, he agreed to allow Houston a few additional days to submit payment for the tractor, but Houston did not tender payment during that additional time. Pepper testified that he and Houston had some disagreements concerning the deal, but after further discussion, Houston agreed to tender a down payment of $1,000, which he paid via “Paypal,” an online electronic money transferring service. He then set up a meeting with Pepper at Pepper’s residence in Huntsville, for Houston to inspect and pick up the tractor and to tender the balance of the price for the tractor.

Pepper’s testimony further indicated that Houston traveled from his residence in North Carolina to Pepper’s residence on Saturday, May 10, 2003, inspected the tractor, paid the remaining balance of the purchase price, and took the tractor back to North Carolina. According to Pepper, he provided Houston with a detailed inspection of the tractor before the two of them loaded it onto Houston’s trailer. We note the following excerpt from Pepper’s testimony at trial:

“[Pepper]: Well, I — the first thing I did was I cranked the tractor up, raised and lowed [sic] the three-point hitch, which is where the equipment goes on. Popped the hood and let him look at the engine. I remember him saying something about the oil filter on it looked like it was the same oil filter that goes on a Mazda car of some sort.
“I showed him the tires, I said, As I told you on the phone,’ I said, ‘Here is the Goodyear tires it’s got on the back of the tractor. And just showed him that there were no leaks, the thing ran good and I drove it up on his trailer and helped him strap it down.”

(R. 47.) Pepper further testified that Houston did not mention the tires at that time and that Houston did not voice any complaints about the tractor. According to Pepper, Houston tendered payment to Pepper at that meeting for the remaining balance of $1,400 by check. Pepper testified that he deposited the check two days later, on Monday May 12, and that he was notified on May 23 that a stop-payment order had been placed on the check by Houston; Pepper stated that his credit union informed him that the stop-payment order had been placed on Monday, May 12. According to Pepper, when he contacted Houston by telephone to ask him why he had stopped payment on the check, the following conversation occurred:

“I asked him why he had stopped payment on the check and he said, ‘You thought I was stupid. You misrepresented the tractor. I stopped payment on it.’ And I said, ‘Well, you didn’t say a word about it in the driveway.’ And he said, ‘Well, I knew you wouldn’t refund my deposit back so I knew this is what I had to do.’ ”

(R. 50-51.) Houston told him that the tires he had on the tractor interfered with the correct operation of the tractor.

Houston raises four issues on appeal: (1) whether the trial court lacked jurisdiction over Houston because he did not commit an act of fraud within Limestone County; (2) whether the criminal trial against him was improperly commenced for the unconstitutional purpose of collecting a civil debt; (3) whether the trial court erred by sustaining the State’s objection to evidence of Houston’s offer of settlement to the complaining witness; and (4) whether the State presented sufficient evidence to support the conviction.

I.

Houston claims that the Limestone Circuit Court lacked jurisdiction over this case because, he says, any deception on his part occurred in North Carolina when he put the stop-payment order on the check. Houston raised this contention both in a pretrial motion to dismiss the indictment and in his posttrial motion for a new trial and motion for a judgment of acquittal.

The Alabama Supreme Court has held the following with regard to jurisdiction over the crime of theft of property:

“ ‘The “subject matter” in the criminal setting is the crime itself. Therefore, if the crime is committed in this State, our courts have subject matter jurisdiction.
“ ‘If a crime is committed in this State, our courts also have jurisdiction over the person. Jurisdiction over property rarely arises in criminal matters, but a reasonable statement would be that, if property is illegally taken from this State or illegally brought into this State, our courts would have jurisdiction over this as well.’

“Rothchild v. State, 558 So.2d 981, 983 (Ala. Crim. App .1989).”

Ex parte James, 780 So.2d 693, 695 (Ala. 2000).

Houston claims that no intent to defraud took place within Limestone County. In order for Alabama courts to have jurisdiction of a crime of theft of property, an element of the charged offense must have taken place in Alabama. See, e.g., Ex parte James, supra; and Heath v. State, 536 So.2d 142 (Ala.Crim.App.1988). See also § 15-2-3, Ala.Code 1975.

Here, Pepper testified that Houston replied to his inquiry about why he stopped payment: “Well, I knew you wouldn’t refund my deposit back so I knew this is what I had to do.” (R. 50-51.) Pepper testified that Houston also replied: “ “You thought I was stupid. You misrepresented the tractor. I stopped payment on it.’ ” (R. 50.) One inference that can be drawn from Pepper’s testimony is that Houston intended to stop payment on the check before he came to Limestone County to pick up the tractor, as evidenced by his failure to comply with the payment terms stated in the auction description or the payment terms later negotiated by the parties; another inference that can be drawn from Pepper’s testimony is that Houston formed the intent to take possession of the property but never to honor the check, i.e., that at the time he handed the $1,400 check to Pepper he intended to stop payment on the check. Therefore, the trial court did not err in denying Houston’s requests that the charge against him be dismissed for lack of jurisdiction.

II.

Houston next contends that the criminal prosecution was improperly commenced for the unconstitutional purpose of collecting a civil debt. According to § 13A-8-2, Ala.Code 1975:

“A person commits the crime of theft of property if he or she:
“(1) Knowingly obtains or exerts unauthorized control over the property of another, with intent to deprive the owner of his or her property;
“(2) Knowingly obtains by deception control over the property of another, with intent to deprive the owner of his or her property ...”

Although Art. I, § 20, Alabama Constitution 1901, prohibits the State from prosecuting a defendant for failure to pay a debt, the prosecution of a defendant for theft with intent to deprive the rightful owner of his property is not unconstitutional:

“The difference between the improper use of a statute as a means of punishment for debt and the proper use of a statute as a means of punishment for a criminal act is intent. Harris v. State, 378 So.2d 257 (Ala.Crim.App.), cert. denied, 378 So.2d 263 (Ala.1979). A mere failure or inability to pay a debt does not necessarily constitute theft. Theft requires the specific intention to deprive which cannot be inferred from the mere naked fact of nonpayment of a debt. Thus, the theft statute was designed to punish those who exert unauthorized control over the property of another with the intent to deprive that person of his property and not to punish persons who are unable to pay a debt.”

Bullen v. State, 518 So.2d 227, 233-34 (Ala. Crim.App.1987) (Emphasis original). As set forth more fully in the statement of facts herein and in Parts I and IV of this opinion, there was evidence that tended to indicate that Houston had the requisite intent to deprive Pepper of his property. Thus, we cannot say that the district attorney, being in the best position to assess the merits of proceeding with criminal charges, see Piggly Wiggly No. 208, Inc. v. Dutton, 601 So.2d 907 (Ala.1992), abused his discretion in deciding to initiate criminal proceedings against Houston. Thus, we cannot say that the criminal prosecution in this case was initiated for the purpose of collecting a civil debt.

III.

Houston contends that the trial court erred in sustaining the State’s objections to evidence that, according to Houston, supported his theory that the case was a civil matter, rather than a criminal offense. Houston cites objections found at pages 56, 59, and 88 of the record.

A.

With regard to the first objection (R. 56), we note that Houston did not argue that the testimony was for the purpose of showing that the case was a civil matter. Rather, defense counsel questioned whether the prosecutor was objecting to the defendant’s statement and then argued that settlement offers were admissible in criminal cases.

“[Defense counsel]: Okay. During [the time that Houston and Pepper were attempting to resolve their dispute], did Mr. Houston offer to you to just forget the whole deal and you refund him nine hundred bucks and that would be that?

“[Prosecutor]: The State objects, Judge.
“THE COURT: Do you want to respond?
“[Defense counsel]: Object to my client’s statement?
“[Prosecutor]: I believe any type of offer of settlement in a case, Judge, is inadmissible.
“[Defense counsel]: Not in a criminal case.
“THE COURT: Sustain the objection.”

(R. 55-56.)

At no time during that exchange did Houston argue that the testimony sought was for the purpose of showing that the case was a civil matter. Thus, as to that ruling, Houston failed to preserve the specific argument he now advances on appeal. “Review on appeal is limited to review of questions properly and timely raised at trial.” Newsome v. State, 570 So.2d 708, 716 (Ala.Crim.App.1989).

B.

Additionally, we note that the objections at page 56 and page 88 of the record centered around questions that called for testimony as to Houston’s alleged settlement offers.

“[Houston]:.... That’s when I told Mr. Pepper that his options were: he could give me back my money. I did expect—
“[Prosecutor]: Judge, I [am] going to object to [sic] based on my standing objection.
“THE COURT: Sustained.”

(R. 87-88.) However, at the time those objections were made, Pepper had already testified, without objection, as to Houston’s settlement offer: “And I had two choices. I could give him back his thousand dollars, plus money for his trouble and I could come get the tractor, or I could buy him new tires and then he would give me the money.” (R. 51.) Further, Pepper had testified that he and Houston had attempted to use the online dispute resolution service provided by eBay to resolve their dispute. Additionally, shortly after the first objection, the following exchange occurred:

“[Defense counsel]: Okay. Now, as far as you know Mr. Houston was fine with you picking up the tractor and taking it from North Carolina to Alabama, and him getting his money back; isn’t that correct?
“[Pepper]: No, that’s not quite correct.
“[Defense counsel]: He wasn’t fine with you picking up the tractor and refunding him his money?
“[Prosecutor]: Judge, objection.
“[Pepper]: No. He wanted additional money. He said he wanted money for his trouble and gas coming down here.”

(R. 57-58.)

Consequently, although Houston’s arguments at trial were not on the same grounds he now argues on appeal, and, further, even assuming that the testimony should have been allowed, Houston is not entitled to any relief as to these two excerpts because the testimony concerning Houston’s settlement offers was cumulative to other testimony in evidence.

C.

Unlike the other two exchanges, Houston did argue at page 59 of the record that the testimony was offered to explore whether the matter was civil or criminal in nature.

“[Defense counsel]: Did you ever state to him that you would drop the charges if he would pay the money that you wanted?
“[Prosecutor]: Judge, same objection.
“THE COURT: Sustained.
“[Defense counsel]: Your Honor, I’ll have to, at this point, object to the sustaining of the prosecutor’s objection.
“The issue here in this case is whether or not this is a civil matter. And I should have full opportunity to explore this.
“THE COURT: Sustain the objection.”

(R. 59.) However, we note that a trial court has wide discretion in determining the extent of questioning during cross-examination:

“ ‘It is a well-established rule in this state that the latitude and extent of cross-examination are matters which of necessity rest largely within the sound discretion of the trial court, and rulings with respect thereto will not be revised on appeal except in extreme cases of abuse. State v. Howington, 268 Ala. 574, 109 So.2d 676 (1959); Housing Authority of City of Decatur v. Decatur Land Co. [258 Ala. 607, 64 So.2d 594 (1953)]; Holland v. State, 424 So.2d 1387 (Ala.Cr.App.1982), cert. denied, 424 So.2d 1387 (Ala.1983).’ ”

Long v. State, 621 So.2d 383, 388 (Ala.Crim.App.l993)(quoting Beavers v. State, 565 So.2d 688, 689 (Ala.Crim.App. 1990)). We recognize that evidence of settlement offers may have been relevant for the purpose of showing that the matter arose in the context of a civil contract from which the jury could infer the lack of criminal intent, see, e.g., Bullen v. State, 518 So.2d 227 (Ala.Crim.App.1987) (trial court erred in excluding evidence from which the jury could have inferred that the appellant lacked the intent to steal from the victims). However, as is noted above, there was ample testimony at trial indicating that the transaction was conducted via the online auction Web site eBay; that Houston paid a portion of the purchase price via an electronic fund transfer; that Houston gave Pepper a check for the remaining balance when he took possession of the tractor; and that Houston stopped payment on the check two days later. There was also ample testimony indicating that Houston made some sort of settlement offers to Pepper and that the parties used a dispute resolution service offered by eBay to attempt to resolve the situation. Houston has offered no argument as what additional testimony he would have elicited, how any additional testimony would have been relevant, or how any additional testimony would have made a difference in his trial. Thus, even assuming that the evidence was admissible, error, if any, in the trial court’s sustaining of this objection was harmless.

Based on the foregoing, Houston is not entitled to any relief on this claim.

IV.

Finally, Houston argues that the State did not present sufficient evidence to support the conviction. Specifically, Houston contends that the State did not establish that he had the intent to deceive Pepper in order to deprive Pepper of his property.

“The sufficiency of the evidence concerns the question of whether, ‘viewing the evidence in the light most favorable to the prosecution, [a] rational fact finder could have found the defendant guilty beyond a reasonable doubt.’ ” Johnson v. State, 555 So.2d 818, 819 (Ala.Crim.App.1989), quoting Tibbs v. Florida, 457 U.S. 31, 37, 102 S.Ct. 2211, 72 L.Ed.2d 652 (1982). ‘“In determining the sufficiency of the evidence to sustain a conviction, a reviewing court must accept as true all evidence introduced by the State, accord the State all legitimate inferences therefrom, and consider all evidence in a light most favorable to the prosecution.’ ” Ballenger v. State, 720 So.2d 1033, 1034 (Ala.Crim.App.1998), quoting Faircloth v. State, 471 So.2d 485, 488 (Ala.Crim.App.1984), affd, 471 So.2d 493 (Ala.1985). “ “When there is legal evidence from which the jury could, by fair inference, find the defendant guilty, the trial court should submit [the case] to the jury, and, in such a case, this court will not disturb the trial court’s decision.’ ” Farrior v. State, 728 So.2d 691, 696 (Ala.Crim. App.1998), quoting Ward v. State, 557 So.2d 848, 850 (Ala.Crim.App.1990).

In order for the State to prove a prima facie case for theft of property by deception, it had to show that Houston:

“(2) Knowingly obtained] by deception control over the property of another, with intent to deprive the owner of his or her property....”

§ 13A-8-2, Ala.Code 1975.

“ ‘To make a case of theft by deception, the state must prove three elements: (1) that the defendant knowingly obtained the property; (2) that the defendant obtained the •property by deception; and (3) that the defendant intended to deprive the owner of the property. Oliver v. State, 518 So.2d 707 (Ala.Cr. App.1987); Loper v. State, 469 So.2d 707 (Ala.Cr.App.1985).’ ”

Ex parte Rosborough, 909 So.2d 772, 775 (Ala.2004), quoting Ex parte Stinson, 631 So.2d 831, 832 (Ala.1992). A present intent is required in order to prove theft by deception:

“More than mere failure to perform a promise is required to support an inference of deceptive intent. Alabama Code 1975, § 13A-8-l(l)(f). A false promise must be distinguished from a broken promise.
“ ‘A false promise is to be distinguished from a broken promise, i.e., a promise which the promisor originally intends to keep but which he later decides to break. One who makes a false promise can be properly said to be guilty of fraud; but one who breaks a promise he meant to keep, though not altogether admirable, cannot properly be termed fraudulent.’ W. LaFave and A. Scott, Criminal Law 657, n. 17 (1972).
“Annot., 19 A.L.R.4th 959, 964 (1983).
“ ‘[A] present intent not to comply with a promise or a statement as to a future act can be the basis of the crime of obtaining money or property by false pretenses.’ In such prosecutions it is essential to establish that there was ‘an intent at the time the representation was made not to comply with a promise or statement as to a future act and to guard against the conviction of persons who have been guilty of no more than a breach of contract.’ 19 A.L.R.4th at 964.”

Benefield v. State, 469 So.2d 699, 701 (Ala. Crim.App.1985).

We recognize that in Smith v. State, 665 So.2d 1002, 1004 (Ala.Crim.App.1995), this Court determined that there was no evidence in that case establishing the requisite intent to commit the criminal offense of theft and that “[a]n affirmance under the facts presented in this case would only-serve to cast prosecutors in the role of judgment collectors and encourage potential civil litigants to seek a remedy in a criminal court in the form of restitution.” Here, however, unlike in Smith, the State presented evidence from which the jury could infer that Houston intended to commit theft.

Pepper testified that he telephoned Houston after discovering that a stop-payment order had been issued on the check, that Houston complained at that time that Pepper had misrepresented the tractor, that he commented to Houston that Houston had not said anything about any problems in the driveway when they were loading the tractor, and that Houston told him, “ ‘Well, I knew you wouldn’t refund my deposit back so I knew this is what I had to do.’ ” (R. 50-51.) The jury could have reasonably inferred from this testimony that Houston, when he was taking delivery of the tractor in Alabama, exhibited the requisite intent to take control of the tractor without ever intending to honor the check for the balance of the purchase price. The jury could have reasonably inferred that Houston had a preexisting intent for the theft because he issued a check on which he could place a stop payment order. Pepper also testified that he and Pepper had agreed before Houston came to pick up the tractor that the $1,400 payment was to be made by certified check. Pepper testified that Houston did not give him a certified check when he arrived in Limestone County. Accordingly, there was sufficient evidence to submit the issue to the jury.

Further, to the extent that Houston’s argument challenges the weight of the evidence, any “inconsistencies and contradictions in the State’s evidence, as well as [any] conflict between the State’s evidence and that offered by the appellant, [goes] to the weight of the evidence and [creates a question] of fact to be resolved by the jury.” Rowell v. State, 647 So.2d 67, 69-70 (Ala.Crim.App.1994). ‘““[T]he credibility of witnesses and the weight or probative force of testimony is for the jury to judge and determine.” ’ ” Johnson v. State, 555 So.2d at 820, quoting Harris v. State, 513 So.2d 79, 81 (Ala.Crim.App. 1987), quoting in turn Byrd v. State, 24 Ala.App. 451, 451, 136 So. 431, 431 (1931). More importantly, “‘[t]he question of the victimf’s] credibility [is] one for the jury and not for this Court.’ ” Rowell, 647 So.2d at 69, quoting Coats v. State, 615 So.2d 1260, 1260 (Ala.Crim.App.1992). “We have repeatedly held that it is not the province of this court to reweigh the evidence presented at trial.” Johnson, 555 So.2d at 820. “ ‘When the jury has passed on the credibility of evidence tending to establish the defendant’s guilt, this Court cannot disturb its finding.’ ” Rowell, 647 So.2d at 69, quoting Collins v. State, 412 So.2d 845, 846 (Ala.Crim.App.1982). Furthermore, ‘“[t]his Court must view the evidence in the light most favorable to the State, and “draw all reasonable inferences and resolve all credibility choices in favor of the trier of fact.” ’ ” D.L. v. State, 625 So.2d 1201, 1204 (Ala.Crim.App.1993), quoting Woodberry v. State, 497 So.2d 587, 590 (Ala.Crim.App.1986). “Any issues regarding the weight and credibility of the evidence are not reviewable on appeal once the state has made a prima facie case.” Jones v. State, 719 So.2d 249, 255 (Ala. Crim.App.1996), aff'd, 719 So.2d 256 (Ala. 1998).

Here, the jury could have inferred from Pepper’s version of events that when Houston was in Alabama taking possession of the tractor he knowingly took possession of the tractor, that he did so by deception, and that he intended to deprive Pepper of the tractor without paying Pepper the agreed-upon price. Pepper’s testimony alone, if believed, was sufficient to sustain Houston’s conviction. The jury obviously rejected Houston’s contention that he did not notice the problem with the tires until his return to North Carolina and his contention that he, at that time, decided to stop payment on the check because of what he considered to be a misrepresentation by Pepper. Thus, we decline to go behind that determination by the jury.

For the foregoing reasons, the judgment of the trial court is affirmed.

AFFIRMED.

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

      . Contained in the record is the parties’ express consent to continue the motion for a new trial until November 5, 2004, a date beyond the 60-day period after which it would have otherwise been denied by operation of law.

      . See III. A., of this opinion for the excerpt from the objection at R. 56.


source: Caselaw Access Project

author: COBB, Judge. BASCHAB, Judge,

license: Public Domain

text:
    Jeffery BAKER v. STATE of Alabama.
    CR-04-0068.
    Court of Criminal Appeals of Alabama.
    Aug. 26, 2005.
    Rehearing Denied Dec. 16, 2005.

      Jeffrey C. Robinson, Selma, for appellant.
    Troy King, atty. gen., and Cecil G. Bren-dle, Jr., asst. atty. gen., for appellee.
   COBB, Judge.

Jeffery Baker was charged by complaint with criminal mischief in the third degree, a violation of § 13A-7-23, Ala.Code 1975. He was convicted of the charged offense in the district court and was ordered to pay various fines and court costs. Baker appealed to the circuit court for a trial de novo; he was again convicted of criminal mischief in the third degree. The circuit court sentenced Baker to 180 days in jail; that sentence was suspended, and Baker was ordered to serve 30 days in jail. Baker was also ordered to pay various fines and court costs. This appeal followed.

Because Baker does not challenge the sufficiency of the State’s evidence, a brief rendition of the facts will suffice. The evidence adduced at trial indicated that on September 6, 2002, Baker disrupted a Labor Day holiday cookout for employees of the Pike County Sheriffs Department and county courthouse personnel in the parking lot of the county courthouse. The testimony indicated that Baker had not been invited to the picnic; that he entered the area where the picnic was being held; and that he grabbed a steak designated for an employee off of the grill and threw it on the ground, causing it to break into several pieces.

The lone issue raised on appeal is whether Baker knowingly, intelligently, and voluntarily waived his constitutional right to counsel at trial. In his brief, Baker argues that he requested on at least four occasions that the trial court appoint counsel to assist him and that he never waived his right to counsel. The State argues that, by his requests, Baker sought, not the assistance of counsel required by the Constitution but, rather, hybrid representation to which he was not entitled and that, when the trial court declined to allow Baker hybrid representation, Baker affirmatively insisted on proceeding pro se and waived his right to counsel. We agree with the State.

The record reveals that Baker acted pro se both at the district court proceedings and the circuit court proceedings. Baker filed a pro se notice of appeal for a trial de novo in the circuit court. Baker subpoenaed witnesses and documents; Baker also filed assorted discovery motions, motions to dismiss the charges against him on a number of grounds, and other timely and pertinent pleadings in this case. Additionally, Baker filed responsive pleadings to motions filed by the State. Further, Baker successfully obtained the recusal of judges in both the district court proceedings and the circuit court proceedings, and as a result, the prosecuting attorney in both the district court and the circuit court proceedings and the trial judge in the circuit court proceedings were appointed from another circuit.

Before trial, the prosecutor filed a motion requesting that the trial court conduct a Faretta hearing to ascertain whether Baker’s waiver of his right to counsel was knowing, voluntary, and intelligent. After a hearing — portions of which we quote at length later in this opinion — the trial court determined that Baker was voluntarily, knowingly, and intelligently waiving his right to counsel and allowed Baker to proceed pro se at trial.

Finally, we note that Baker did request that counsel be appointed to represent him for sentencing purposes. However, after counsel was appointed for the sentencing proceeding, Baker rescinded his request and filed a motion to proceed pro se for his sentencing hearing; the trial court allowed newly appointed counsel to withdraw and then appointed a second attorney to represent Baker at sentencing. Baker advised that attorney that his services were not required and filed a second motion to waive his right to counsel and requested again to proceed pro se at sentencing. The trial court granted Baker’s motion, and Baker represented himself at sentencing.

“A defendant’s decision to represent himself necessarily involves the waiver of his right to counsel. See Fitzpatrick v. Wainwright, 800 F.2d 1057, 1064 (1986). In Pratt v. State, 851 So.2d 142, 144-45 (Ala.Crim.App.2002), this Court pointed out:
“ ‘ “The constitutional ‘right to counsel, or waiver thereof, is an essential jurisdictional prerequisite to the authority to convict an aecused[, and c]onviction without this safeguard is void.’ People v. Carroll, 140 Cal. App.3d 135, 140, 189 Cal.Rptr. 327, 331 (Cal.App. 2 Dist.), cert. denied, 464 U.S. 820 (1983) (citing Johnson v. Zerbst [, 304 U.S. 458 (1938)]). Unless a defendant has or waives assistance of counsel, the Sixth Amendment is a jurisdictional bar to a valid conviction and sentence. Johnson v. Zerbst; Stokes v. Singletary, 952 F.2d 1567 (11th Cir.1992); Boruff v. United States, 310 F.2d 918 (5th Cir.1962). See also Lancaster v. State, [638 So.2d 1370, 1373] (Ala.Cr.App.1993) (‘the appellant’s ... x*ight to have counsel appointed on appeal [is a] jurisdictional matter[ ]’); Lake v. City of Birmingham, 390 So.2d 36, 38 (Ala.Cr.App. 1980) (a record failing to reveal any of the circumstances surrounding the appellant’s self-representation ‘will not support the trial court’s judgment wherein the appellant was sentenced to a loss of liberty’).”
‘Berry v. State, 630 So.2d 127, 130 (Ala.Crim.App.1993) (footnote omitted). See also Custis v. United States, 511 U.S. 485, 494 (1994) (“ ‘If the accused ... is not represented by counsel and has not competently and intelligently waived his constitutional right, the Sixth Amendment stands as a jurisdictional bar to a valid conviction and sentence depriving him of his life or his liberty.... The judgment of conviction pronounced by a court without jurisdiction is void, and one imprisoned thereunder may obtain release by habeas corpus.’” (quoting Johnson v. Zerbst, 304 U.S. 458, 468 (1938)); Weakley v. State, 721 So.2d 235, 236 (Ala.1998) (holding that the right to counsel at arraignment is a jurisdictional matter).’
“Thus it is the lack of counsel, coupled with the absence of a knowing and intelligent waiver thereof, that acts to deny the defendant counsel and to jurisdic-tionally bar his prosecution.
“ ‘The constitutional right of an accused to be represented by counsel invokes, of itself, the protection of a trial court, in which the accused— whose life or liberty is at stake — is without counsel. This protecting duty imposes the serious and weighty responsibility upon the trial judge of determining whether there is an intelligent and competent waiver by the accused. While an accused may waive the right to counsel, whether there is a proper waiver should be clearly determined by the trial court, and it would be fitting and appropriate for that determination to appear upon the record.’
“Johnson v. Zerbst, 304 U.S. 458, 465 (1938).
“Rule 6.1(b), Ala.R.Crim.P., provides a framework to ensure that a defendant’s waiver of counsel is knowing and intelligent:
“ ‘A defendant may waive his or her right to counsel in writing or on the record, after the court has ascertained that the defendant knowingly, intelligently, and voluntarily desires to forgo that right. At the time of accepting a defendant’s waiver of the right to counsel, the court shall inform the defendant that the waiver may be withdrawn and counsel appointed or retained at any stage of the proceedings ....
“Certainly, the provisions of Rule 6.1(b) are mandatory, and, if a defendant properly preserves and presents an argument on appeal that the trial court faltered in its application of the mandatory provisions of Rule 6.1(b), he is entitled to relief. See, e.g., Ex parte King, 797 So.2d 1191 (Ala.2001). However, the fact that a trial court forgoes those provisions does not necessarily indicate that a defendant unknowingly, unintelli-gently, and involuntarily has waived his right to counsel. That is, the fact that a trial court fails to abide by the letter of Rule 6.1(b) and Faretta [v. California, 422 U.S. 806 (1975),] does not necessarily result in the defendant’s being deprived of counsel and, thus, the trial court’s being jurisdictionally barred from rendering a judgment. See Tomlin v. State, 601 So.2d 124, 128 (Ala. 1991) (‘Although the Supreme Court in Faretta states that a defendant should be made aware of the dangers and disadvantages of self-representation, the Supreme Court does not require a specific colloquy between the trial judge and the defendant.’). See also Fitzpatrick v. Wainwright, 800 F.2d 1057, 1065 (11th Cir.1986) (‘The ultimate test is not the trial court’s express advice, but rather the defendant’s understanding.’).
“Whether a defendant who chooses to represent himself has knowingly, intelligently, and voluntarily waived his right to counsel can be indicated by the record or by the totality of the circumstances surrounding the waiver. See Johnson v. Zerbst, 304 U.S. 458, 464 (1938) (‘The determination of whether there has been an intelligent waiver of the right to counsel must depend, in each case, upon the particular facts and circumstances surrounding that case, including the background, experience, and conduct of the accused.’). See also Clemons v. State, 814 So.2d 317 (Ala.Crim.App.2001) (citing Monte v. State, 690 So.2d 517 (Ala.Crim.App.1996)); Johnston v. City of Irondale, 671 So.2d 777 (Ala.Crim. App.1995); Warren v. City of Enterprise, 641 So.2d 1312 (Ala.Crim.App. 1994); Siniard v. State, 491 So.2d 1062 (Ala.Crim.App.1986). See also Faretta, 422 U.S. at 835 (‘Although a defendant need not himself have the skill and experience of a lawyer in order competently and intelligently to choose self-representation, he should be made aware of the dangers and disadvantages of self-representation, so that the record will establish that “he knows what he is doing and his choice is made with eyes open.” Adams v. United States ex rel. McCann, 317 U.S. [269, 279 (1942) ].’).”

Coughlin v. State, 842 So.2d 30, 33-35 (Ala.Crim.App.2002). Similarly, in Tomlin v. State, 601 So.2d 124 (Ala.1991), the Alabama Supreme Court stated:

“In Faretta v. California, 422 U.S. 806 (1975), the Supreme Court held that a defendant has a Sixth Amendment right to represent himself in a criminal case. In order to conduct his own defense, the defendant must ‘knowingly’ and ‘intelligently’ waive his right to counsel, because in representing himself he is relinquishing many of the benefits associated with the right to counsel. Faretta, 422 U.S. at 835. The defendant ‘should be made aware of the dangers and disadvantages of self-representation, so that the record will establish that “he knows what he is doing and his choice is made with eyes open.” ’ Faretta, 422 U.S. at 835 (other citations omitted).
“The burden of proof in the present case is on the defendant. When a defendant has clearly chosen to relinquish his right to counsel and has asserted his right to self-representation, and on appeal asserts that he was denied the right to counsel, he has the burden of showing, ‘ “by a preponderance of the evidence, that he did not intelligently and understandingly waive his right to counsel.” ’ Teske v. State, 507 So.2d 569, 571 (Ala.Cr.App.1987), quoting Moore v. Michigan, 355 U.S. 155, 161-62 (1957). The Supreme Court in Carnley v. Cochran, 369 U.S. 506, 516-17 (1962), held that when the record clearly shows that a defendant has expressly waived his right to counsel, the burden of proving that his waiver was not made knowingly and intelligently is on the defendant. ‘A waiver of counsel can only be effectuated when the defendant asserts a “clear and unequivocal” right to self-representation.’ Westmoreland v. City of Hartselle, 500 So.2d 1327, 1328 (Ala.Cr.App. 1986), citing Faretta, 422 U.S. 806. If the record is not clear as to the defendant’s waiver and request of self-representation, the burden of proof is on the State. Carnley, 369 U.S. at 517. Presuming a waiver from a silent record is impermissible. Camley.
“Although the Supreme Court in Far-etta states that a defendant should be made aware of the dangers and disadvantages of self-representation, the Supreme Court does not require a specific colloquy between the trial judge and the defendant. ‘The case law reflects that, while a waiver hearing expressly addressing the disadvantage of a pro se defense is much to be preferred, it is not absolutely necessary. The ultimate test is not the trial court’s express advice but rather the defendant’s understanding.’ Fitzpatrick v. Wainwright, 800 F.2d 1057 (11th Cir.1986) (citations omitted). In each case the court needs to look to the particular facts and circumstances involved, ‘including the background, experience, and conduct of the accused.’ Johnson v. Zerbst, 304 U.S. 458, 464 (1938).
“This court looks to a totality of the circumstances involved in determining whether the defendant knowingly and intelligently waived his right to counsel. Jenkins v. State, 482 So.2d 1315 (Ala.Cr. App.1985); King v. State, 55 Ala.App. 306, 314 So.2d 908 (Ala.Cr.App.1975), cert. denied; Ex parte King, 294 Ala. 762, 314 So.2d 912 (1975).”

601 So.2d 124,128-29.

The following exchange occurred at the Faretta hearing before trial:

“THE COURT: While we are on the subject, Mr. Baker, I am sure that one of the judges in Pike County informed you that you have a right to an attorney and that if you cannot afford one one will be appointed for you by the Court. Have they not?
“MR. BAKER: I believe, Your Hon- or, in this case you are the only judge that has, that I have been before.
“THE COURT: You had a district judge.
“MR. BAKER: I am before you, now. What happened in district court is irrelevant here.
“THE COURT: Let me inform you then.
“MR. BAKER: Okay.
“THE COURT: You understand that you have a right to an attorney as this is a criminal prosecution?
“MR. BAKER: I understand that.
“THE COURT: And that if you cannot afford one, one will be appointed for you by the Court.
“MR. BAKER: I have an affidavit of substantial hardship in the record, Your Honor, that you have not ruled on.
“THE COURT: Are you seeking an attorney? Are you requesting an attorney be appointed to represent you in this case?
“MR. BAKER: It would all depend on who, which attorney you are talking about.
“THE COURT: It is not an attorney of your choosing. Are you requesting this Court appoint an attorney?
“MR. BAKER: Not at this time, Your Honor.
“THE COURT: Well, there is not going to be another time. So, either we are going forward with the trial of these cases or we are going to stop and I am going to appoint an attorney for you, if you are requesting it.
“MR. BAKER: Well, I will request, Your Honor, [to] have a sitting attorney, but I am planning to represent myself before the jury. That is what I plan to do.
“[Prosecutor]: If it please the Court; judge, we have a pending motion that is in effect a Faretta motion of self representation and possibly that should be taken up now.
“THE COURT: I agree.
“[Prosecutor]: We didn’t have one of those in the district court. I am not sure it is an order. I did take the liberty to prepare a proposed order.
“THE COURT: Correct.
“[Prosecutor]: Of course, the State does not object to Mr. Baker representing himself.
“MR. BAKER: In that case, Your Honor, I waive all of that and submit to the Court that I am a paralegal. I have legal experience. I have represented myself in other matters. I am fully capable of representing myself in this case. However, being is that Your Hon- or has demonstrated a bias toward me, I would suggest we have a sitting attorney.
“THE COURT: Mr. Baker, be careful.”

(R. 17-19.) Baker informed the trial court that he had attended various universities and had obtained a degree. Baker stated that he had a degree as “Legal Assistant. Paralegal.” (R. 20.) The following exchange then occurred:

“MR. BAKER: Your Honor, I have admitted that I am intelligent enough to represent myself in these matters. I think I have demonstrated that through my motions. I waive it. He waived it. I don’t have — I am going through this matter with an intelligent and legal knowledge of my rights.
“THE COURT: So you don’t want an appointed attorney? Is that correct?
“MR. BAKER: I requested the Court to appoint me a sit-in attorney in an advisory capacity. Yes.
“THE COURT: Well, I will appoint an attorney to represent you, but I am not going to appoint an attorney just to sit here. Now either he is going to represent you or he is not. You can’t have it both ways.
“MR. BAKER: Well, Your Honor, then let’s proceed to the next issue on your agenda.
“THE COURT: Okay. All right. [Prosecutor]; anything?
“[Prosecutor]: Judge, may I approach the bench? I have noticed Mr. Baker with it and also a copy in the court file. For the convenience of the Court, there is a copy of a proposed order that I think addresses the issue brought forth in Faretta and also the two fairly recent Alabama cases that addressed the same issue.
“THE COURT: You have given Mr. Baker one?
“[Prosecutor]: I have previously given him one.
“MR. BAKER: I have received it, Your Honor.
“THE COURT: Okay. What is the State’s position regarding a, I don’t know, sit-in-attorney, if you will?
“[Prosecutor]: Judge, that, if you — he has a choice of going the route of self representation. And, on a case of the level of these two misdemeanors, that it is not, it is not required that the State give a sit-in-attorney when he has asked to represent himself and is certainly capable of representing himself.
“MR. BAKER: On that same issue, Your Honor, if I may be allowed to speak?
“THE COURT: Are you through, [Prosecutor]?
“[Prosecutor]: Yes, sir.
“THE COURT: Yes, Mr. Baker.
“MR. BAKER: I am, if I may be allowed to speak; the position of the State in other cases that I am aware of, that when a pro se individual, who is unlearned in the law asks for a sit-in-attorney, it is granted with the express stipulation that the attorney and the pro se individual not be questioning the witness at the same time or if one is questioning, the other will not or something to that effect. And, I think that is the way it has been in caselaw that I have discovered that has been addressed by it.
“THE COURT: Do you want to present a ease to me?
“MR. BAKER: No, sir. You can rule on it. It is up to you and I will make an objection and we can move on and we will take it on up on appeal.”

(R. 20-23.)

It is apparent from a reading of the transcript of the Faretta hearing that Baker was seeking standby counsel but that he intended to represent himself. Clearly, “[wjhile a defendant has a right to be represented by counsel or to represent himself, he is not entitled to a hybridized representation of his own design.” Moody v. State, 888 So.2d 532, 560 (Ala.Crim.App. 2003). Therefore, the trial court was within its discretion to deny Baker’s request for a “sit-in-attorney.” The trial court instead advised Baker that he could either represent himself, or the trial court would appoint an attorney to represent him; Baker chose to represent himself. Additionally, as to the affidavit of substantial hardship Baker referenced when the trial court mentioned that counsel would be appointed if Baker could not afford to hire an attorney, it is apparent that that affidavit was filed for the purposes of allowing Baker to appeal his district court conviction to the circuit court for a trial de novo, rather than requesting the appointment of counsel; neither the affidavit of substantial hardship nor the motion for leave to appeal in forma pauperis even suggest that Baker wanted appointed counsel. Thus, it is clear from our review of the record that Baker made the decision to forgo his right to counsel and asserted his right to self-representation; therefore, he has the burden of showing that his waiver of his right to counsel was not knowingly, intelligently, or voluntarily made. See Tomlin, supra.

In Sibley v. State, 775 So.2d 235 (Ala. Crim.App.1996), this Court stated:

“In United States v. Cash, 47 F.3d 1083 (11th Cir.1995), the Eleventh Circuit Court of Appeals outlined the factors necessary in determining the validity of a waiver of counsel:

“ ‘They are: (1) The defendant’s age, educational background, and physical and mental health; (2) the extent of defendant’s contact with lawyers prior to trial; (3) the defendant’s knowledge of the nature of charges, possible defenses, and penalties; (4) the defendant’s understanding of the rules of procedure, evidence, and courtroom decorum; (5) the defendant’s experience in criminal trials; (6) whether standby counsel was appointed and the extent to which that counsel aided the defendant; (7) any mistreatment or coercion of defendant; and (8) whether the defendant was trying to manipulate the events of trial. [Fitzpatrick v. Wainwright, 800 F.2d 1057, 1065-67 (11th Cir.1986) ]. All factors need not point in the same direction.’

47 F.3d at 1088-1089.”

775 So.2d at 243.

Here, Baker asserted that he had a degree as a legal assistant or paralegal. There is no indication in the record that his waiver was affected by any physical or mental impairments or by drug or alcohol abuse. It is apparent from a reading of the voluminous record that Baker had a clear understanding of the nature of the charges, the defenses applicable to the charges, and the possible penalties he faced if convicted. We also note that Baker questioned numerous witnesses at trial about their observations of the incident and posed a series of questions designed to attack specific elements of the charged offenses — we note with some particularity that, although Baker was convicted of the criminal-mischief charge, the jury was unable to render a verdict as the harassment charge. Similarly, the numerous pleadings and motions Baker filed and his references to applicable legal theories and rules of procedure indicate that he had an awareness of the legal process and legal procedure, as did his questioning of witnesses. There is no evidence indicating that Baker was mistreated or coerced into representing himself; to the contrary, it is abundantly clear from the record that Baker had every intention of representing himself at trial.

Although the trial court declined to appoint standby counsel to assist Baker should the need arise, the lone reason Baker gave for wanting standby counsel was Baker’s perception that the trial judge was biased against him. However, our review of the record reveals no instances in the record that could be perceived as bias by the trial judge. Therefore, after reviewing the record on appeal, we conclude that, given the totality of the circumstances, Baker has failed to demonstrate by a preponderance of the evidence that he did not knowingly, intelligently, and voluntarily waive his right to counsel. More succinctly, Baker did not unwittingly stumble blindly down the path of self-representation and the waiver of his right to counsel. Rather, he sought a hybrid form of representation of his choosing; the trial court exercised its discretion and refused to allow Baker to proceed in that manner; the trial court offered to appoint counsel to represent Baker; and Baker knowingly, voluntarily, and intelligently chose to waive his right to counsel and to instead proceed pro se.

Based on the foregoing, we affirm the judgment of the circuit court.

AFFIRMED.

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

BASCHAB, Judge,

dissenting.

In this case, the trial court and the appellant discussed the fact that the appellant had indicated that he wanted to represent himself during the proceedings. However, the record in this case does not indicate that the trial court specifically advised the appellant about the dangers and disadvantages of self-representation, as required by Faretta v. California, 422 U.S. 806, 95 S.Ct. 2525, 45 L.Ed.2d 562 (1975).

“In Faretta v. California, 422 U.S. 806, 95 S.Ct. 2525, 45 L.Ed.2d 562 (1975), the Supreme Court held that a defendant has a Sixth Amendment right to represent himself in a criminal case. In order to conduct his own defense, the defendant must ‘knowingly’ and ‘intelligently’ waive his right to counsel, because in representing himself he is relinquishing many of the benefits associated with the right to counsel. Faretta, 422 U.S. at 835, 95 S.Ct. at 2541. The defendant ‘should be made aware of the dangers and disadvantages of self-representation, so that the record will establish that “he knows what he is doing and his choice is made with eyes open.’” Faretta, 422 U.S. at 836, 95 S.Ct. at 2541 (other citations omitted).”

Tomlin v. State, 601 So.2d 124, 128 (Ala. 1991).

In addition, the record does not indicate that the trial court advised the appellant that he had the right to withdraw any waiver of the right to counsel at any time during the proceedings, as required by Rule 6.1(b), Ala. R.Crim. P. In fact, the trial court did just the opposite during the following exchange:

“THE COURT: ... Are you requesting this Court appoint an attorney?
“[THE APPELLANT]: Not at this time, Your Honor.
“THE COURT: Well, there is not going to be another time.”

(R. 18.)

For these reasons, we should reverse the trial court’s judgment and remand this ease for a new trial. See Farid v. State, 720 So.2d 998 (Ala.Crim.App.1998); Hairgrove v. State, 680 So.2d 946 (Ala.Crim. App.1995).

      . Baker was also charged with harassment and tried in the circuit court on that charge, which arose out of the same incident that gave rise to the criminal mischief conviction. However, the jury was unable to reach a verdict as to harassment, and the trial court ordered a mistrial on that charge.

      . Also in the record are numerous pro se pleadings Baker filed in an unrelated civil matter involving some of the witnesses to the incident at the cookout.

      . Faretta v, California, 422 U.S. 806, 95 S.Ct. 2525, 45 L.Ed.2d 562 (1975).

      . As the dissent correctly notes, Rule 6.1(b), Ala.R.Crim.P., provides, in part, that “[w]hen a defendant waives the right to counsel, the court may appoint an attorney to advise the defendant during any stage of the proceedings.” (Emphasis added.) There is no requirement that the trial court appoint standby counsel. Thus, based on the totality of the circumstances as discussed later in this opinion, we will not hold the trial court in error for declining to do so.

      . The record consists of seven volumes. The transcript of the pretrial Faretta hearing and the trial span approximately 423 pages; the transcript of the sentencing hearing is approximately 55 pages long. The clerk's record contains approximately 814 pages, of which a significant portion consists of the multitude of pro se pleadings Baker filed in the circuit court, in the district court, and in assorted unrelated civil proceedings involving some of the complainants and witnesses in this trial. Moreover, although certainly not dispositive of this issue, we note that Baker on appeal sought the removal of appointed appellate counsel because he was displeased with appellate counsel's brief and then later rescinded that request.

      . Rule 6.1(b), Ala. R.Crim. P., provides, in part:
      "A defendant may waive his or her right to counsel in writing or on the record, after the court has ascertained that the defendant knowingly, intelligently, and voluntarily desires to forgo that right. At the time of accepting a defendant's waiver of the right to counsel, the court shall inform the defendant that the waiver may be withdrawn and counsel appointed or retained at any stage of the proceedings.”
      (Emphasis added.)

      . I would further note that it appears from the discussions the majority quotes that the trial court did not understand that it could appoint stand-by counsel to assist the appellant as he proceeded pro se. In this regard, Rule 6.1(b), Ala. R.Crim. P., provides, in pertinent part:
      "When a defendant waives the right to counsel, the court may appoint an attorney to advise the defendant during any stage of the proceedings.”


author: BASCHAB, Judge. COBB, Judge,

text:
    Mark Anthony PARTAIN v. STATE of Alabama.
    CR-04-0631.
    Court of Criminal Appeals of Alabama.
    Aug. 26, 2005.
    Rehearing Denied Oct. 14, 2005.
    Certiorari Denied Dec. 9, 2005 Alabama Supreme Court 1050154.
    Cecilia Pope, Huntsville, for appellant.
    Troy King, atty. gen., and Andy Scott Poole, asst. atty. gen., for appellee.
   BASCHAB, Judge.

AFFIRMED BY UNPUBLISHED MEMORANDUM.

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

COBB, J., concurs specially, with opinion.

COBB, Judge,

concurring specially.

I agree with the majority’s resolution of all of the issues in the unpublished memorandum in this case. I write specially only to address Issue II, in which the majority questions whether Mark Anthony Partain preserved for review his arguments regarding the trial court’s failure to strike aliases from the indictment and the court’s failure to give a curative instruction. The majority correctly notes that Partain did not request a curative instruction after the trial court read the indictment, including the aliases, to the jury; Partain’s claim as to that issue is not preserved. However, I believe that Partain’s numerous requests to the trial court that the aliases be struck from the indictment, and the various grounds stated in support of the requests, sufficiently informed the trial court of the objection and the reasons for it. Therefore, I believe that issue was preserved for review.

Nonetheless, I agree that Partain is not entitled to relief on the claim because, as the trial court correctly states, Alabama cases have held that the use of aliases in an indictment is not so inherently prejudicial as to require a reversal in all cases. Wabbington v. State, 446 So.2d 665 (Ala.Crim.App.1983). The practice of using aliases in indictments, however, has been strongly criticized. 446 So.2d at 668-69. That criticism is well-founded, and the use of aliases not relevant to identifying the defendant should be avoided.

Based on the foregoing, I concur specially with the majority’s unpublished memorandum.