text:
    John Ross SPEARS v. STATE of Alabama.
    2040380.
    Court of Civil Appeals of Alabama.
    Nov. 10, 2005.
    Derek E. Yarbrough of Motley, Motley & Yarbrough, LLC, Dothan, for appellant.
    Troy King, atty. gen., and Yvonne A.H. Saxon, asst. atty. gen., for appellee.
   CRAWLEY, Presiding Judge.

John Ross Spears appeals from a judgment condemning his 2002 Ford F-150 vehicle on the ground that the forfeiture of the vehicle pursuant to AIa.Code 1975, § 20-2-93(a), constitutes an excessive fine prohibited by the Excessive Fines Clause of the Eighth Amendment to the United States Constitution. We conclude that the forfeiture is not excessive and affirm the condemnation judgment.

Spears’s roommate, Ashley Bond, overdosed on cocaine on February 8, 2004. Spears telephoned emergency “911,” and, when officers responded, Spears admitted that he and Bond had spent the evening before smoking marijuana and using both crack cocaine and powdered cocaine. Although Spears refused the officers’ request to search the apartment, the officers secured a warrant. In addition, Spears gave the officers permission to search his vehicle. The search of the apartment, which Spears shared with Bond and a third roommate, yielded approximately 15 grams of marijuana and .22 grams of cocaine. The search of Spears’s vehicle yielded approximately 1.19 grams of marijuana and the residue of cocaine in a straw. After the searches, Spears gave a statement to law-enforcement personnel in which he admitted that he and Bond had driven in Spears’s vehicle from Dothan to Madrid and Hartford to purchase an “eightball” of marijuana and cocaine. Spears, who had previously been convicted of possession of marijuana in the second degree, was charged with possession of marijuana in the first degree, see Ala.Code 1975, § 13A-12-213(a)(2), and unlawful possession of a controlled substance. See Ala.Code 1975, § 13A-12-212(a)(l). Those two offenses are class C felonies, see Ala. Code 1975, §§ 13A-12-213(b) & 13A-12-212(b), and carry with them potential fines of $5,000 each, see Ala.Code 1975, § 13A-5-ll(a)(3), for a combined possible fíne of $10,000.

Spears testified that he purchased his vehicle about two months before the date of seizure with money that he had inherited. At the time of purchase, Spears paid $32,000 for the vehicle. He stated that he had added certain accessories to the vehicle (including a stereo system and a Sony brand Playstation video-game device) and purchased an extended warranty, which cost a total of approximately $4,800. Thus, Spears contended that the vehicle was worth approximately $37,000. The trial court, however, concluded that the fair market value of the vehicle was approximately $30,000.

In Ex parte Kelley, 766 So.2d 837, 839-40 (Ala.1999), our supreme court applied the proportionality test set out in United States v. Bajakajian, 524 U.S. 321, 118 S.Ct. 2028, 141 L.Ed.2d 314 (1998), to determine whether the seizure of a vehicle constituted an excessive fíne. The court first set out the general standard — the proportionality test.

“ ‘The touchstone of the constitutional inquiry under the Excessive Fines Clause is the principle of proportionality. The amount of the forfeiture must bear some relationship to the gravity of the offense that it is designed to punish.... Until today, however, we have not articulated a standard for determining whether a punitive forfeiture is constitutionally excessive. We now hold that a punitive forfeiture violates the Excessive Fines Clause if it is grossly disproportional to the gravity of a defendant’s offense.’ ”

Ex parte Kelley, 766 So.2d at 839 (quoting Bajakajian, 524 U.S. at 334, 118 S.Ct. 2028). Our supreme court then discussed the United States Supreme Court’s explanation of how to apply the proportionality test, which requires a court considering the issue to “ ‘compare the amount of the forfeiture to the gravity of the defendant’s offense. If the amount of the forfeiture is grossly disproportional to the gravity of the defendant’s offense, it is unconstitutional.’ ” Ex parte Kelley, 766 So.2d at 840 (quoting Bajakajian, 524 U.S. at 336-37, 118 S.Ct. 2028).

The Kelley court then considered whether the forfeiture of Kelley’s $30,000 vehicle constituted an excessive fine in light of the proportionality test. Ex parte Kelley, 766 So.2d at 840. Kelley had been charged with a class C felony offense carrying a potential $5,000 fine. Id. Thus, the court concluded, a forfeiture of the $30,000 vehicle, which was six times the amount of the maximum fine that could be imposed, was “grossly disproportional to the gravity of [Kelley’s] offense” and therefore constituí-ed an excessive fine that violated the Eighth Amendment. Id.

The federal courts have enumerated some possible factors for consideration by a court facing an excessive-fine argument in civil-forfeiture case. See United States v. One 1992 Isuzu Trooper VIN # JACDH58W3N79112571, 51 F.Supp.2d 1268 (M.D.Ala.1999). Among the possible factors are “(1) the culpability of the claimant; (2) the gravity of the crime; (3) the sentence that could have been imposed on the perpetrator of the offense; and (4) the nature and value of the property forfeited.” One 1992 Isuzu Trooper, 51 F.Supp.2d at 1273 n. 4. The claimant in One 1992 Isuzu Trooper was not involved in the drug transaction in which the vehicle was involved, and her boyfriend, who had committed the offense from which the forfeiture action arose, was convicted of “simple possession” and fined only $250. Id. at 1273. Although the court agreed that the “actual convictions in a case are not dispositive for proportionality review purposes,” it stated that “the relevant factors will vary from case to case.” Id. at 1273-74. The court ultimately concluded that the forfeiture of the claimant’s vehicle constituted an excessive fine.

Spears argues that the forfeiture of an item worth three times the possible fíne for the offenses charged is an excessive fine under the Eighth Amendment and the proportionality test. He makes much of the fact that, despite being charged with possession of marijuana in the first degree, the amount of marijuana in his possession was not enough to qualify as an amount for sale. In addition, he argues that Bond and the third roommate were not charged; however, some testimony at trial indicated that money seized from the third roommate’s safe was, in fact, condemned as well.

As noted above, Spears is facing potential fines in the amount of $10,000. The trial court found that his vehicle, although containing several enhanced accessories, had a fair market value of approximately $30,000 at the time of its seizure. Spears admitted that he and Bond used the vehicle to travel to purchase both marijuana and cocaine. The vehicle contained 1.19 grams of marijuana and traces of cocaine residue. Spears had previously been convicted of possession of marijuana. He now stands charged with possession of marijuana in the first degree and unlawful possession of a controlled substance. Based on these facts and circumstances, the trial court concluded that a forfeiture of an item worth three times the maximum possible fines did not constitute an excessive fine under the Eighth Amendment.

We simply do not agree with Spears that the forfeiture of his vehicle worth three times the amount of the potential fines for the particular offenses with which he is charged is grossly disproportional to the gravity of the offenses. In Harris v. State, 821 So.2d 177, 186 (Ala.2001), our supreme court determined that the forfeiture of $165,501 in currency was not an excessive fine. One of the claimants in Harris, Gregory Binion, was found by the trial court to be “ ‘involved in a high-profit business of narcotics sales.’ ” Harris, 821 So.2d at 186. Based on this factual determination, the Harris court noted that the fines for a cocaine-trafficking conviction ranged from $50,000 to $250,000 depending on the quantity of the cocaine being trafficked. Id. The court stated that it could not conclude that the forfeiture of $165,501 was an excessive fine in light of the range of possible fines provided for by the legislature. Id. Because our supreme court determined that the fine in Harris ($165,-501, which was more than three times the lowest possible fine) was not excessive, we likewise conclude that the forfeiture of Spears’s vehicle, worth three times the amount of the fines that could be imposed against Spears, satisfies the proportionality test. Accordingly, we affirm the judgment of the trial court.

AFFIRMED.

THOMPSON, PITTMAN, and BRYAN, JJ., concur.

MURDOCK, J., concurs in the result, without writing.


source: Caselaw Access Project

author: CRAWLEY, Presiding Judge.

license: Public Domain

text:
    Terry MACK v. Prince ARNOLD.
    2040324.
    Court of Civil Appeals of Alabama.
    Nov. 10, 2005.

      Leston C. Stallworth, Jr., of The Stall-worth Law Firm, LLC, Monroeville, for appellant.
    Robbie Alexander Hyde and Ashley Hawkins Freeman of Webb & Eley, P.C., Montgomery, for appellee.
   CRAWLEY, Presiding Judge.

This is an appeal from a summary judgment entered in favor of a sheriff on a deputy sheriffs claims alleging wrongful termination and breach of contract. The issues this court must resolve are whether a denial of due process or an actionable breach of contract occurred when the deputy’s employment was terminated and, if so, whether the sheriff is immune from suit.

Terry Mack was employed as a deputy sheriff in Wilcox County at the time Sheriff Prince Arnold terminated his employment. Following the termination, Mack sued Sheriff Arnold individually, as well as various fictitiously named parties, alleging that his discharge violated the Due Process Clause of the 14th Amendment to the United States Constitution and various provisions of the Wilcox County personnel system manual (“the personnel manual”). Mack also alleged that Sheriff Arnold breached a contract of employment, because, he alleged, the termination policies in the personnel manual were not followed.

Mack later moved to amend his complaint to allege a violation of his due-process rights under Article I, § 35, Ala. Const.1901. Sheriff Arnold filed an objection to Mack’s motion to amend and, in the alternative, moved to dismiss the action. After Mack filed his answers to interrogatories propounded by Sheriff Arnold, Sheriff Arnold again moved to dismiss the action. Without ruling on Mack’s motion to amend, the trial court granted Sheriff Arnold’s motion to dismiss and entered a judgment in favor of Sheriff Arnold. Mack appeals. We affirm the trial court’s judgment.

The facts that Mack alleged are simple and somewhat sparse. Mack was hired in October 1992 to be a deputy sheriff of Wilcox County. During Mack’s tenure, he received a personnel manual. Mack alleges that the personnel manual created a contract of employment between him and the sheriff. Furthermore, Mack contends that he did not violate any of the terms of the personnel manual and that Sheriff Arnold did not follow the proper procedures in the manual before terminating his employment. Specifically, the deputy contends that he was not given proper notice of the sheriffs actions taken against him and that the sheriff did not take “proper measures in deciding on the employment termination of the plaintiff.”

The parties dispute whether the trial court granted a motion for a summary judgment, as Mack contends in his brief to this court, or whether the trial court dismissed the case, as Sheriff Arnold contends in his brief. The trial court contributed to the confusion by entering its order of December 20, 2004, which states: “The Court hereby dismisses this case and enters judgment in favor of the Defendant.” (Emphasis added.) This court notes that it is not possible to both dismiss a case and to enter a judgment in favor of one of the parties.

Although Sheriff Arnold filed a Rule 12(b)(6), Ala. R. Civ. P., motion to dismiss for failure to state a claim upon which relief can be granted, the record indicates that the trial court was presented with evidentiary materials outside the pleadings in the form of Mack’s responses to the interrogatories, filed with the court on December 6, 2004. When evidence is presented to the trial court and not specifically excluded, it is appropriate for this court to presume that the trial court considered such evidence in making its decision. See Singleton v. State Dep’t of Corr., 819 So.2d 596, 598 n. 1 (Ala.2001)(the Supreme Court presumed that the trial court considered both the motion to dismiss and an attached affidavit because the trial court did not state that it had excluded the affidavit).

Rule 12(b), Ala. R. Civ. P., provides, in part:

“If, on a motion asserting the defense numbered (6) to dismiss for failure of the pleading to state a claim upon which relief can be granted, matters outside the pleading are presented to and not excluded by the court, the motion shall be treated as one for summary judgment and disposed of as provided in Rule 56, and all parties shall be given reasonable opportunity to present all material made pertinent to such a motion by Rule 56.”

(Emphasis added.)

Consequently, the trial court’s consideration of Mack’s interrogatory responses automatically converted the motion to dismiss under Rule 12(b)(6) to a Rule 56, Ala. R. Civ. P., motion for a summary judgment. See Rule 12(b); see also Briggs v. Woodfin, 395 So.2d 1024, 1025-26 (Ala.Civ.App.1981)(in the event matters outside the pleadings are called to the attention of the trial court,, the trial court should treat a Rule 12(b)(6) motion as one for a summary judgment under Rule 56 and proceed accordingly). Despite the fact that Sheriff Arnold, and arguably the trial court, called the order in question a “dismissal,” the trial court’s consideration of evidence outside the pleadings makes it appropriate for this court to deal with the order as a summary judgment. Hendrix v. Hunt, 607 So.2d 1254, 1256 (Ala.1992)(where the parties treated the trial court’s order as a dismissal under Rule 12(b)(6), but the record revealed that the trial court had considered undisputed evidence outside the pleadings, the Supreme Court considered the trial court’s order a summary judgment).

Having resolved the procedural posture of the case at hand, the appropriate standard of review is the standard applicable to a summary judgment. We review a summary judgment de novo. Lee v. City of Gadsden, 592 So.2d 1036, 1038 (Ala.1992). A motion for a summary judgment is to be granted when no genuine issue of material fact exists and the moving party is entitled to a judgment as a matter of law. Rule 56(c)(3), Ala. R. Civ. P. A party moving for a summary judgment must make a prima facie showing “that there is no genuine issue as to any material fact and that [it] is entitled to a judgment as a matter of law.” Rule 56(c)(3); see Lee, 592 So.2d at 1038. If the movant meets this burden, “the burden then shifts to the nonmovant to rebut the movant’s prima facie showing by ‘substantial evidence.’ ” Id. (footnote omitted). “[Substantial evidence is evidence of such weight and quality that fair-minded persons in the exercise of impartial judgment can reasonably infer the existence of the fact sought to be proved.” West v. Founders Life Assurance Co. of Florida, 547 So.2d 870, 871 (Ala.1989); see Ala.Code 1975, § 12-21-12(d).

Mack raises two arguments on appeal: first, that there were genuine issues of material fact concerning the proper procedures Sheriff Arnold should have followed before terminating his employment and, second, that the sheriff breached an employment contract with him by terminating his employment.

Sheriff Arnold counters with three arguments, which generally stated are: first, that Mack and the sheriff, both state employees, were not automatically bound to any of the procedural benefits or requirements in the personnel manual; second, that since the personnel manual contains a provision by which it can be amended unilaterally at any time, no contract for employment was created; and finally, that as an officer of the State of Alabama the sheriff is immune from liability on Mack’s claims.

As an initial matter, we must resolve whether Mack was an employee of the State of Alabama or of Wilcox County. If Mack was an employee of the county, then the county’s personnel manual could confer on him certain pretermination due-process rights. Our caselaw is clear, however, that a sheriffs deputy is a state employee. Whitten v. Lowe, 677 So.2d 778, 780 (Ala.Civ.App.1995).

The analysis in a 2001 opinion of the attorney general supports this conclusion as well:

“Deputy sheriffs and jailers are not county employees and are therefore not subject to the Autauga County personnel policy. A deputy is the alter ego of the sheriff. Terry [v. Cook], 866 F.2d [373,] 377 [(11th Cir.1989)]. A sheriff is not a county employee; he is a member of the executive branch of state government and, thus, a state official. ALA. CONST. art. V, § 112; Whitten v. Lowe, 677 So.2d 778, 780 (Ala.Civ.App.1995), citing Hooks v. Hitt, 539 So.2d 157 (Ala.1988). Therefore, a sheriffs deputy is not a county employee and is not entitled to protection under a local personnel policy. Whitten, 677 So.2d at 780.”

Ala. Att’y Gen. Op. 2001-217.

Because Mack is a state employee, not a county employee, the county personnel manual does not automatically apply to his employment. Therefore, Mack cannot prevail on a due-process claim against Sheriff Arnold based on the policies in the personnel manual unless the sheriff independently entered into a contract with Mack to follow the procedures in the personnel manual. Mack argues just that— that Sheriff Arnold entered into an employment contract with him by indicating that he would follow the termination procedures in the personnel manual.

In Harper v. Winston County, 892 So.2d 346 (Ala.2004), the Alabama Supreme Court noted that while it is well-settled law in Alabama that employment is at will and terminable by either party with or without cause, “an employee handbook can represent a binding contract obligating an employer to satisfy certain conditions precedent to dismissing an employee.” Id. at 351 (citing Hoffman-LaRoche, Inc. v. Campbell, 512 So.2d 725, 728 (Ala.1987)).

Specifically, the Hoffman-LaRoche Court held that the following analysis should be applied to the facts of a case to determine whether any such contract existed:

“First, the language contained in the handbook must be examined to see if it is specific enough to constitute an offer. Second, the offer must have been communicated to the employee by issuance of the handbook, or otherwise. Third, the employee must have accepted the offer by retaining employment after he has become generally aware of the offer. His actual performance supplies the necessary consideration.”

512 So.2d at 735. Additionally, “ ‘[a]n employer’s general statements of policy are no more than that and do not meet the contractual requirements for an offer.’ ” Id. at 731 (quoting Pine River State Bank v. Mettille, 333 N.W.2d 622, 626 (Minn.1983)).

“If the employer reserves in the employee handbook the right to change policies unilaterally, its reservation operates as a disclaimer to negate any inference that the handbook constitutes an enforceable contract.” Harper, 892 So.2d at 351 (citing Stinson v. American Sterilizer Co., 570 So.2d 618, 621 (Ala.1990)). “[W]hether a handbook policy meets this test is a matter of law to be determined by the court.” Stinson, 570 So.2d at 621. In the case at hand, the personnel manual contains the following language:

“V. Rules, Regulation[s], and Procedures.
“C. Neither the foregoing resolution[] nor personnel system manual adopted herein is an act of a general or permanent nature but rather a statement for the administration of county personnel matters which is subject to amendment, alteration, or change as dictated by subsequent circumstances by a resolution of the Wilcox County Commission in accordance with established procedures.”

The above language in the personnel manual clearly indicates that the policies in the manual are subject to unilateral change at the will of the Wilcox County Commission. Consequently, the personnel manual Mack received cannot be construed as an offer on the part of the sheriff to create a binding employment contract. As a matter of law, the personnel manual did not constitute an enforceable contract of employment.

Though the trial court’s order of December 20, 2004, does not contain any findings of fact, or state the rationale for the court’s order, “[gjenerally, [an appellate court] can affirm a trial court’s judgment on any basis.” Donoghue v. American Nat’l Ins. Co., 838 So.2d 1032, 1038 (Ala.2002)(citing Ex parte City of Fair- hope, 739 So.2d 35, 39 (Ala.1999)(“A trial court’s judgment, if correct, should be affirmed even if the court has given a wrong reason in support of its judgment.”); and Steiger v. Huntsville City Bd. of Educ., 653 So.2d 975, 977 (Ala.1995)(“A judgment properly entered will not be disturbed, even if it is not supported by the reasons stated by the trial court.”)).

We conclude that because Mack was a state employee, Sheriff Arnold was not required to follow any county procedures before terminating Mack’s employment and that because the personnel manual did not constitute a contract of employment, the trial court properly entered a summary judgment in favor of the sheriff. We pretermit discussion of the sheriffs immunity argument.

AFFIRMED.

THOMPSON, PITTMAN, and BRYAN, JJ., concur.

MURDOCK, J., concurs in the result, without writing.

      . The "foregoing resolution” appears to be an introductory statement to the personnel manual.

      . Even if there had been a contract for employment, "[b]ecause of the sovereign immunity clause, the courts of this state are without jurisdiction to entertain a suit seeking damages, including back pay, for breach of contract against the state.” Vaughan v. Sibley, 709 So.2d 482, 486 (Ala.Civ.App.1997)(citing State Bd. of Adjustment v. State Dep’t of Mental Health & Mental Retardation, 581 So.2d 481 (Ala.Civ.App.1991)). Consequently, insofar as Mack’s suit can be construed as an action against the State of Alabama, even if there had been a contract, Mack’s sole remedy for damages would have been to seek relief from the State Board of Adjustment. Vaughan, 709 So.2d at 486; see also §§ 41-9-62(a)(4) and (a)(7), Ala.Code 1975.


author: PITTMAN, Judge. CRAWLEY, Presiding Judge,

text:
    B.B. and S.M. v. ETOWAH COUNTY DEPARTMENT OF HUMAN RESOURCES. B.B. and S.M. v. Etowah County Department of Human Resources.
    2040420 and 2040539.
    Court of Civil Appeals of Alabama.
    Nov. 10, 2005.
    Willis H. Clay, Gadsden, for appellants.
    Troy King, atty. gen., and Sharon E. Ficquette and Elizabeth Hendrix, asst, at-tys. gen., Department of Human Resources.
   PITTMAN, Judge.

2040420 — AFFIRMED. NO OPINION.

See Rule 53(a)(1) and (a)(2)(A), Ala. R.App. P.; Ala.Code 1975, § 26-18-7; B.M. v. State, 895 So.2d 319, 334 (Ala.Civ.App.2004); C.W. v. State Dep’t of Human Res., 826 So.2d 171, 172 (Ala.Civ.App.2002); P.W. v. Houston County Dep’t of Human Res., 771 So.2d 1057, 1059 (Ala.Civ.App.2000); M.H.S. v. State Dep’t of Human Res., 636 So.2d 419, 420-421 (Ala.Civ.App.1994); and Wix v. State Dep’t of Pensions and Security, 464 So.2d 118, 119 (Ala.Civ.App.1985).

2040539 — APPEAL DISMISSED.

THOMPSON, MURDOCK, and BRYAN, JJ., concur.

CRAWLEY, P.J., dissents, with writing.

CRAWLEY, Presiding Judge,

dissenting.

The majority dismisses the appeal from the juvenile court’s March 7, 2005, judgment on the basis that the parents lacked standing to appeal from the juvenile court’s March 7, 2005, judgment because that judgment merely altered the disposition of the child after the parents’ rights had already been terminated by the January 7, 2005, judgment. I disagree.

Although the January 7, 2005, judgment purported to terminate the parents’ parental rights, it fell short of accomplishing that result because, by its own explicit finding, the juvenile court determined that the child’s aunt was “a potential relative resource and ... [the Department of Human Resources] unreasonably rejected her as such.”

When the State is the petitioner in termination proceedings, the trial court must apply a two-pronged test in deciding whether to terminate parental rights. First, the court must find from clear and convincing evidence that there are grounds for the termination of parental rights, including, but not limited to, the grounds set out in § 26-18-7; second, the court must determine whether all viable alternatives to the termination of parental rights have been considered. Ex parte Beasley, 564 So.2d 950, 954-55 (Ala.1990); D.M.P. v. State Dep’t of Human Res., 871 So.2d 77 (Ala.Civ.App.2003). The January 7, 2005, judgment not only failed to consider and reject the child’s aunt as a relative resource, it specifically initiated a “trial placement of the child with [the aunt].” Thus, the judgment failed, as a matter of law, to satisfy the two-pronged test for termination of parental rights established in Beasley.

The juvenile court’s March 7, 2005, judgment finally terminated the parents’ parental rights when it determined

“that all viable alternatives to the termination of the parental rights of each parent, including placement with all potential relatives, "have been considered by [the Department of Human Resources] and reasonably rejected.”

(Emphasis in original.) The parents’ appeal from that judgment is due to be affirmed on the merits. The parents’ appeal from the January 7, 2005, judgment is due to be dismissed as moot.


author: SHAW, Judge.

text:
    John Glenn MOSS, Jr. v. STATE of Alabama.
    CR-03-1180.
    Court of Criminal Appeals of Alabama.
    Jan. 28, 2005.
    Rehearing Denied March 11, 2005.
    Certiorari Denied Nov. 10, 2005 Alabama Supreme Court 1040914.

      John W. Dinsmore, Birmingham; and Tamera Kaye Erskine, Alabaster, for appellant.
    Troy King, atty. gen., and Stephanie N. Morman, asst. atty. gen., for appellee.
   SHAW, Judge.

John Glenn Moss, Jr., was indicted for theft of property in the first degree, see §§ 13A-8-2 and 13A-8-3, Ala.Code 1975. A jury convicted him of misapplication of property, see § 13A-9-51, Ala.Code 1975. He was ordered to pay a $100 fine and court costs.

In his initial brief filed with this Court, Moss presented four issues for review, and the State' responded to those four issues in its brief. After reviewing the record, however, we directed the parties to file supplemental briefs addressing a fifth issue:

‘Whether misapplication of property under § 13A-9-51, Ala.Code 1975, the offense for which the appellant was convicted, is a lesser-ineluded offense of theft of property in the first degree under §§ 13A-8-2 and 13A-8-3, Ala. Code 1975, as charged in the appellant’s indictment.”

In his supplemental brief, Moss argues that misapplication of property requires an additional fact not required for theft of property — namely, that the accused be a fiduciary or that the victim be the government or a financial institution — and that, therefore, misapplication of property is not a lesser-ineluded offense of theft of property as charged in his indictment. The State, on the other hand, argues that misapplication of property is a lesser-ineluded offense of theft of property under the circumstances in this case because, the State says, the evidence presented at trial established that Moss misapplied property under § 13A-9-51, Ala.Code 1975. After considering the arguments presented by the parties, we conclude that misapplication of property under § 13A-9-51, Ala. Code 1975, is not a lesser-ineluded offense of theft of property in the first degree under §§ 13A-8-2 and 13A-8-3, Ala.Code 1975, as charged in Moss’s indictment. -

At the time the offense in this case allegedly occurred, § 13A-8-2, Ala.Code 1975, provided, in pertinent part:

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

Section 13A-8-3(a), Ala.Code 1975, provided that theft of property that exceeded $1,000 in value constituted theft of property in the first degree.

Moss’s indictment charged, in pertinent part:

“The grand jury of said county charge that, before the finding of this indictment, John Glenn Moss, Jr., whose name is to the grand jury otherwise unknown, did knowingly obtain, by deception, control over $62,200.75 of the lawful currency of the United States of America, the property of Old Rocky Ridge Partners, LLC, a Corporation, with the intent to deprive the owner of said property, in violation of Section 13A-8-3 of the Alabama Criminal Code, against the peace and dignity of the State of Alabama.
“2nd: The grand jury of said county further charge that before the finding of this indictment, John Glenn Moss, Jr., whose name is to the grand jury otherwise unknown, did knowingly obtain or exert unauthorized control over $62,200.75 of the lawful currency of the United States of America, the property of Old Rocky Ridge Partners, LLC, a Corporation, with the intent to deprive the owner of said property, in violation of Section 13A-8-3 of the Alabama Criminal Code, against the peace and dignity of the State of Alabama.”

(C. 10.)

The trial court instructed the jury that misapplication of property under § 13A-9-51, Ala.Code 1975, was a lesser-included offense of theft of property as charged in Moss’s indictment. Section 13A-9-51(a), Ala.Code 1975, provides:

“(a) A person commits the crime of misapplication of property if, with knowledge that he is misapplying and that the misapplication involves substantial risk of loss or detriment to the owner of the property or to a person for whose benefit the property was entrusted, he.misapplies or disposes of property that has been entrusted to him as a fiduciary or that is property of the government or a financial institution.”

Section 13A-1-9, Ala.Code 1975, provides, in pertinent part:

“(a) A defendant may be convicted of an offense included in an offense charged. An offense is an included one if:
“(1) It is established by proof of the same or fewer than all the facts required to establish the commission of the offense charged; or
“(2) It consists of an attempt or solicitation to commit the offense charged or to commit a lesser included offense; or
“(3) It is specifically designated by statute as a lesser degree of the offense charged; or
“(4) It differs from the offense charged only in the respect that a less serious injury or risk of injury to the same person, property or public interests, or a lesser kind of culpability suffices to establish its commission.”

Both parties agree that subsections (a)(2) and (a)(3) are not applicable to this case. The question is whether, under the facts in this case, misapplication of property can be “established by proof of the same or fewer than all the facts required to establish” theft of property in the first degree as charged in Moss’s indictment, § 13A-1-9(a)(1), Ala.Code 1975, or whether misapplication of property differs from theft of property in the first degree as charged in Moss’s indictment “only in the respect that a less serious injury or risk of injury to the same person, property or public interests, or a lesser kind of culpability suffices to establish its commission,” § 13A-l-9(a)(4), Ala.Code 1975.

Recently, there has been a plethora of opinions released by both this Court and the Alabama Supreme Court involving the determination of whether one offense is included in another. See Ex parte Cole, 842 So.2d 605 (Ala.2002); Johnson v. State, 922 So.2d 137 (Ala.Crim.App.2005); Bradley v. State, 925 So.2d 221 (Ala.Crim.App.2004); Wright v. State, 902 So.2d 720 (Ala.Crim.App.), aff'd, 902 So.2d 738 (Ala.2004); Childers v. State, 899 So.2d 1023 (Ala.Crim.App.2003), writ quashed, 899 So.2d 1025 (Ala.2004); and Toliver v. State, 881 So.2d 1070 (Ala.Crim.App.2003). As explained in Johnson, an opinion released by this Court today, these opinions show that the clear trend in Alabama law is that in determining whether one offense is included in another, the focus is on the statutory elements of the offenses and the facts as alleged in the indictment, not on the evidence presented at trial.

In this case, misapplication of property could not be established by the same or fewer than all the facts required to establish theft of property in the first degree as charged in Moss’s indictment. Misapplication of property requires either that the accused be a fiduciary or that the victim be the government or a financial institution. However, the charge of theft of property in the first degree in Moss’s indictment does not require that Moss be a fiduciary, and the victim was alleged to be a limited liability company, not the government or a financial institution. Under the circumstances in this case, misapplication of property requires a fact that the charged offense does not — that Moss be a fiduciary. See § 13A-l-9(a)(l), Ala.Code 1975. Furthermore, because misapplication of property requires an additional fact not required by the charged offense, it necessarily does not differ from the charged offense “only in the respect that a less serious injury or risk of injury to the same person, property or public interests, or a lesser kind of culpability suffices to establish its commission.” § 13A-l-9(a)(4), Ala.Code 1975 (emphasis added). Therefore, we hold that misapplication of property under § 13A-9-51, Ala.Code 1975, is not a lesser-included offense of theft of property in the first degree under §§ 13A-8-2 and 13A-8-3, Ala.Code 1975, as charged in Moss’s indictment.

We stress, however, that our holding today is not that misapplication of property can never be a lesser-included offense of theft of property in the first degree, only that it is not a lesser-included offense under the facts as alleged in the indictment in this case. In doing so, we note that the situation in this case is strikingly similar to the situation in Ex parte Cole, which involved the issue whether robbery in the second degree was a lesser-included offense of robbery in the first degree as charged in the indictment. In holding that robbery in the second degree was not a lesser-included offense of robbery in the first degree as charged in the indictment because the indictment did not allege the additional fact required for robbery in the second degree, namely that the accused was aided in the robbery by another person, the Alabama Supreme Court noted in Ex parte Cole that robbery in the first degree is broad enough to include the fact that the accused was aided in the robbery by another person and that, therefore, an indictment for robbery in the first degree could be amended to add such a fact without running afoul of Rule 13.5(a), Ala. R.Crim.P. Similarly, theft of property in the first degree is broad enough to include the fact that the accused is a fiduciary or that the victim is the government or a financial institution. Thus, an indictment for theft of property in the first degree could be properly amended to add such facts without running afoul of Rule 13.5(a), Ala.R.Crim.P.

However, in this case, the indictment was not amended in compliance with Rule 13.5(a). First, even assuming that the State presented evidence indicating that Moss was a fiduciary, the presentation of evidence does not constitute “the affirmative act of adding to the indictment [the] fact” necessary to bring misapplication of property within the scope of the indictment. Wright v. State, 902 So.2d 738, 742 (Ala.2004). Second, although a trial court can amend an indictment through its jury instructions, see Ash v. State, 843 So.2d 213 (Ala.2002), the court’s instructions in this case did not properly amend the indictment. To properly amend the indictment, the trial court was required to instruct the jury that the fact that Moss was a fiduciary was a necessary element of theft of property in the first degree as charged in the indictment. See Jackson v. State, 889 So.2d 49 (Ala.Crim.App.2004). In this case, the trial court did not instruct the jury that theft of property as charged in the indictment required proof of the fact that Moss was a fiduciary. Instead, the trial court merely instructed the jury that misapplication of property was a lesser-included offense of theft of property. However, instructing the jury on an additional offense not contemplated by the indictment is not a proper amendment. See Wright v. State, 902 So.2d 720 (Ala.Crim.App.), aff'd, 902 So.2d 738 (Ala.2004). Moreover, although Moss did not object to the trial court’s instruction on misapplication of property, a “defendant cannot consent to an amendment that effectively charges an offense not contemplated by the indictment.” Ex parte Cole, 842 So.2d at 608.

Because the indictment charging theft of property was never amended in compliance with Rule 13.5(a), Ala.R.Crim.P., to add the fact that Moss was a fiduciary, misapplication of property is not a lesser-included offense of theft of property as charged in Moss’s indictment. Therefore, the trial court lacked jurisdiction to adjudge Moss guilty of misapplication of property based on the indictment charging theft of property, and Moss’s conviction and sentence for misapplication of property must be reversed. Because we reverse Moss’s conviction and sentence, we decline to address the other issues raised by Moss on appeal.

Based on the foregoing, the judgment of the trial court is reversed and this cause remanded to the trial court for proceedings consistent with this opinion.

REVERSED AND REMANDED.

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

      . Moss was charged alternatively with obtaining by deception control over the property of another, see § 13A-8-2(2), Ala.Code 1975 (Count I of the indictment), and with obtaining or exerting unauthorized control over the property of another, see § 13A-8-2(l), Ala. Code 1975 (Count II of the indictment).

      . Section 13A-8-2, Ala.Code 1975, was amended effective September 1, 2003, to add "or she,” "or her” in two places, and to add what is now subdivision (3); it was further amended effective April 27, 2004, to add what is now subdivision (4).

      . Section 13A-8-3(a), Ala.Code 1975, was amended effective September 1, 2003, to increase the value of the property required for first-degree theft from $1,000 to $2,500.

      .The indictment was amended pursuant to Rule 13.5(a), Ala.R.Crim.P., to remove the words "a Corporation” in both counts of the indictment.

      . In one of the issues presented in his initial brief, Moss argues that the State failed to prove that he was a fiduciary. Because of our resolution of this case, we need not address that issue, and we express no opinion as to the sufficiency of the evidence in that regard.