author: JOINER, Judge. WINDOM, Judge,

text:
    D.G. v. STATE of Alabama.
    CR-09-1526.
    Court of Criminal Appeals of Alabama.
    May 27, 2011.
    Rehearing Denied July 15, 2011.

      Benjamin Joseph Freeman, Dothan, for appellant.
    Troy King and Luther Strange, attys. gen., and Laura I. Cuthbert, asst. atty. gen., for appellee.
   JOINER, Judge.

D.G. appeals his delinquency adjudication based on the underlying charge of first-degree sexual abuse of P.R.W., a six-year-old female, a violation of § 13A-6-66, Ala.Code 1975. He was ordered to cooperate with Juvenile Court Services, to complete a sex-offender assessment, and to undergo a psychological evaluation. He was also ordered to maintain no contact with P.R.W.’s family.

D.G. argues that the juvenile court erred because, he says, he was denied the right to cross-examine a State’s witness in violation of the Confrontation Clause of the Sixth Amendment. Specifically, he contends that the juvenile court, which was the trier of fact, was allowed to view a video recording on a DVD of an interview with P.R.W., who was not present at trial for cross-examination, containing her allegations against him. Thus, he argues that his Sixth Amendment rights were violated. Moreover, he argues, the video recording was never authenticated or admitted.

The record indicates that a discussion was held before trial concerning “a joint motion” (April 22, 2010, R. 4) offered by the State and defense, whereby the State had moved for the juvenile court to admit a DVD-format video recording from the Southeast Alabama Child Advocacy Center and D.G. had requested the admission of a VHS-format videotape recording from the school bus, which was the site of the alleged offense, filmed on the alleged date of the offense. The parties agreed to delay the judge’s viewing of the video evidence until after the judge had heard the testimony. The judge agreed and stated that she would notify the parties of the time that she would watch the recordings so that they could be present. The juvenile judge stated that she could then “take them [the DVD and the VHS videotape] into consideration.” (April 22, 2010, R. 5.)

During trial, the State presented the testimony of one witness, the forensic interviewer with the Southeast Alabama Child Advocacy Center who had interviewed P.R.W. He testified that he believed P.R.W. and that he believed that she had been sexually abused. He did not specifically testify as to the allegations made by P.R.W. After the forensic interviewer’s testimony, the State rested and D.G. moved for a judgment of acquittal. The following transpired:

“[Defense counsel]: Your Honor, I am going to — I mean, I know that you’ve got two videos to watch. But I am going to verbally move for an acquittal or a dismissal, as the State has failed to prove a prima facia case.
“THE COURT: Well, not having seen the videos that y’all have both, by agreement, asked me to view, I’m not going to grant that motion at this point.
“[Defense counsel]: I understand.”

(April 22, 2010, R. 15.)

D.G. then presented the testimony of the assistant principal from his and P.R.W.’s school. The assistant principal testified that he had been present on the bus on the date originally cited as the date the offense occurred and that nothing inappropriate had occurred. He stated that when P.R.W.’s mother called to report the allegation, he so informed her. He was later asked to investigate another date and therefore reviewed the pertinent video recordings from the bus. He stated that D.G. and P.R.W. were not on the bus at the same time on either date. He testified that he informed P.R.W.’s mother of his findings and that he was asked to investigate a third date. He testified that he reviewed the video recordings from the bus of the three dates and that P.R.W. and D.G. came into contact only once when D.G. and another student were playing “some type of slapping-the-hand games.” (April 22, 2010, R. 29.) P.R.W. joined in the game while sitting across the aisle from D.G.

He stated that, after P.R.W.’s mother telephoned him, the school took measures to separate D.G. and P.R.W. He was then informed of an allegation that D.G. had made inappropriate contact with P.R.W. during recess. When he investigated that allegation, he determined that D.G. had been absent on the date the alleged contact occurred. He also found no truth in the claim that D.G., who was fourteen years old at the time of the alleged inappropriate contact, had gone to the elementary school halls.

The school-bus driver also testified for the defense and stated that she had not witnessed any misconduct between P.R.W. and D.G. on the bus. She stated that P.R.W. sat two rows behind her on the passenger’s side of the bus and was her “navigator.” (April 22, 2010, R. 45.)

On rebuttal, the State presented the testimony of P.R.W.’s mother, who testified that she had reported the alleged abuse after giving P.R.W. a bath. She testified that she telephoned the school based on statements that P.R.W. had made to her. She stated that P.R.W. had told her that the incidents had occurred on more than one occasion. She also stated that she had informed the school that she was uncertain of the date of this particular allegation.

Thereafter, following the testimony of the defense witnesses and the State’s rebuttal witness, defense counsel made another motion for a judgment of acquittal. Defense counsel argued that the State had failed to prove the element of the intent to gratify the sexual desire of either party. The juvenile judge responded that she had not finished hearing the evidence because she had not yet watched the DVD and videotape. Therefore, the judge postponed her ruling.

After the judge watched the evidence, the juvenile court reconvened, and defense counsel again argued that the State had presented insufficient evidence and that it was unfair to convict based solely on P.R.W.’s statements made on the DVD. He contended that he should be allowed to cross-examine P.R.W. The juvenile court subsequently denied the motion for judgment of acquittal.

D.G. argues on appeal that the DVD was never properly authenticated or deemed admitted into evidence. D.G. did not object at trial to a lack of authentication or admission, however, and therefore this argument is not preserved for review. See Green v. State, 586 So.2d 54, 55 (Ala. Crim.App.1991) (“On appeal, the appellant asserts that this tape was improperly admitted because the prosecution failed to properly authenticate it. Because this issue was not raised below, it is not preserved for our review.”).

D.G. also argues that his Sixth Amendment right to confront his accuser was violated because the DVD was introduced and he was not allowed to cross-examine P.R.W. It is well settled that delinquency proceedings are quasi-criminal in nature and our Juvenile Code requires that a juvenile be afforded the rights and privileges of the Constitution of the United States and the Constitution of Alabama. See § 12-15-213, Ala.Code 1975; Ex parte Vaughn, 495 So.2d 88 (Ala.1986); Driskill v. State, 376 So.2d 678, 679 (Ala.1979); Scott v. State, 374 So.2d 316 (Ala.1979).

We first consider whether D.G. adequately preserved this claim for review. The record indicates that D.G. moved for a judgment of acquittal at the close of the State’s case, and the following exchange occurred:

“[DEFENSE COUNSEL]: Your Honor, I am going to — I mean, I know that you’ve got two videos to watch. But I am going to verbally move for an acquittal or a dismissal, as the State has failed to prove a prima facia case.
“THE COURT: Well, not having seen the videos that y’all have both, by agreement, asked me to view, I’m not going to grant that motion at this point.
“[DEFENSE COUNSEL]: I understand.
“THE COURT: We will set this for another date so that I can come back in and we can do my finding at that time. Let me get a date. I just need to see when I can view the video. I told you I would give y’all an opportunity to be there when I viewed the video.
“And Monday is a state holiday. Tuesday, I have to be in Montgomery. Wednesday, I have traffic court all day. So, I don’t know that I would be able to see it by next Thursday, which is the next juvenile date. I should be able to view it, if not before, on May 3rd. I probably could view it April 30th, that morning. I’m going to go ahead and put that on my calendar.
“So, I will let y’all know right now that I am viewing the video on that Friday. I will do that at 8:00 a.m. I’ll go ahead and put it 8:15, because she might have trouble getting into the courthouse .... ”

(April 22, 2010, R. 15-16.)

At the close of all testimony, but before the juvenile court had reviewed the DVD and videotape, D.G. renewed his motion for a judgment of acquittal, and the juvenile court indicated that it was going to reserve ruling until after it had viewed the DVD and videotape. (April 22, 2010, R. 69-72.) More particularly, the following transpired:

“[DEFENSE COUNSEL]: And I’ll say this, Judge. I didn’t realize that we were going to come back and do that. I would have just saved that motion for that time.
“THE COURT: I think I said I wasn’t going to rule on it right now anyway.
“[DEFENSE COUNSEL]: I understand. I just didn’t know if we were going to have a chance to come back then and make some statements or arguments.
“THE COURT: With that, we’re off the record.”

(April 22, 2010, R. 72.)

When the juvenile court reconvened and viewed the DVD and videotape, defense counsel again argued that the State had presented insufficient evidence and that it was unfair to convict based solely on P.R.W.’s statements made on the DVD because he had not been allowed to cross-examine P.R.W. Specifically, defense counsel argued:

“[DEFENSE COUNSEL]: Your Honor, I think it’s — as well, I would also like to state my position that the State has failed to put on sufficient evidence. I haven’t had any opportunity to cross-examine the victim or witness. I know that the tape was admitted. But I don’t think that alone is sufficient to uphold a conviction for an adjudication of delinquency to my client. I think it’s patently unfair to not allow me the opportunity to cross-examine a witness.”

(May 3, 2010, R. 5.) Under these circumstances, we conclude that D.G. adequately preserved the Confrontation Clause issue for review because it appears that juvenile court did not want to consider any objections until after it had viewed the evidence. See Ex parte Abrams, 3 So.3d 819, 822-23 (Ala.2008) (holding that Abrams’s argument that there was insufficient evidence on which to revoke his probation based on his drug use was preserved because the trial court was clearly aware of the basis of the argument and to hold otherwise “would be to elevate form over substance”). Further, in this case, the argument D.G. presents on appeal was presented to the juvenile court and he received an adverse ruling. See Jordan v. State, 574 So.2d 1024, 1025 (Ala.Crim.App.1990) (holding that claim was not preserved for appellate review where defendant did not first present his argument to the trial court); Harris v. State, 563 So.2d 9, 11 (Ala.Crim.App.1989) (providing that the defendant must first obtain an adverse ruling in order to preserve an issue for appellate review); see also T.D.M. v. State, [Ms. CR-08-0355, June 25, 2010] — So.3d -,-(Ala.Crim.App.2010) (same).

The DVD, State’s Exhibit 1, contains the interview of P.R.W. by the forensic interviewer with the Southeast Alabama Child Advocacy Center. P.R.W. originally denied that anything bad had happened to her on the bus and that anyone had ever touched her “bottom.” She then stated that D.G. had hit her on the back and the shoulder. After being shown a diagram of a female and identifying body parts, she stated that D.G. had touched her “front bottom” and her “back bottom” outside her clothing and that he had told her that her front bottom was a “water hole.” She also stated that she had touched D.G.’s “water hole” briefly outside his clothing, because he had wanted her to do so.

If a child witness is unavailable at trial or the child’s testimony is unavailable by another authorized means, and a defendant has not been allowed to cross-examine the witness previously, a prior out-of-court statement by the witness should not be admitted if it is testimonial. In Styron v. State, 34 So.3d 724, 730-31 (Ala.Crim. App.2009), this court stated:

“In Crawford v. Washington, [541 U.S. 36 (2004) ], the United States Supreme Court held that the admission of a wife’s out-of-court statements to police officers, regarding an incident in which the defendant, her husband, allegedly stabbed the victim, violated the Confrontation Clause. The Supreme Court stated that, regardless of whether an out-of-court statement is deemed reliable by the trial court, an out-of-court statement by a witness that is testimonial is barred under the Sixth Amendment’s Confrontation Clause, unless the witness is unavailable and the defendant had a prior opportunity to cross-examine the witness. Crawford v. Washington, 541 U.S. at 68, 124 S.Ct. 1354. Although the Supreme Court held that Crawford applied to testimonial statements, it declined to provide a comprehensive definition of testimonial statements, stating merely that ‘[wjhatever else the term covers, it applies at a minimum to prior testimony at a preliminary hearing, before a grand jury, or at a former trial; and to police interrogations.’ 541 U.S. at 68, 124 S.Ct. 1354.
“In Davis v. Washington, 547 U.S. 813, 126 S.Ct. 2266, 165 L.Ed.2d 224 (2006), the United States Supreme Court expounded on what types of statements were testimonial statements:
“ ‘Statements are nontestimonial when made in the course of police interrogation under circumstances objectively indicating that the primary purpose of the interrogation is to enable police assistance to meet an ongoing emergency. They are testimonial when the circumstances objectively indicate that there is no such ongoing emergency, and that the primary purpose of the interrogation is to establish or prove past events potentially relevant to later criminal prosecution.’
547 U.S. at 822,126 S.Ct. 2266.
“Alabama law authorizes the admission of an out-of-court statement made by a child under the age of 12 under certain circumstances. See § 15-25-31, Ala.Code 1975. Section 15-25-32, Ala. Code 1975, provides:
“ ‘An out-of-court statement may be admitted as provided in Section 15-25-31, if:
“ ‘(1) The child testifies at the proceeding, or testifies by means of video tape deposition as provided by Section 15-25-2, or testifies by means of closed circuit television as is provided in Section 15-25-3, and at the time of such testimony is subject to cross-examination about the out-of-court statements; or
‘(2)a. The child is found by the court to be unavailable to testify on any of these grounds:
“ ‘1. The child’s death;
“‘2. The court finds that there are reasonable grounds to believe that the defendant or someone acting on behalf of the defendant has intentionally removed the child from the jurisdiction of the court;
“ ‘3. The child’s total failure of memory;
“ ‘4. The child’s physical or mental disability;
“‘5. The child’s incompetency, including the child’s inability to communicate about the offense because of fear or a similar reason; or
“‘6. Substantial likelihood that the child would suffer severe emotional trauma from testifying at the proceeding or by means of closed circuit television; and
“ ‘b. The child’s out-of-court statement is shown to the reasonable satisfaction of the court to possess particularized guarantees of trustworthiness.’
“Although the United States Supreme Court’s decision in Crawford effectively abrogated subsection b. of § 15-25-32(2), § 15-25-32 still requires the de-clarant’s unavailability in order to admit an out-of-court statement made by a child under the age of 12.”

Thus, in Styron v. State, supra, this court determined that the circuit court erred by allowing a Department of Human Resources (“DHR”) employee who had interviewed the two child victims of the alleged sexual abuse to testify about statements one of the children had made to her. This child failed to testify at trial and was not available for cross-examination by Styron. The statements made to the DHR employee by the children were testimonial in that they could corroborate statements that the children had made to their aunt. Therefore, the statements from the interview were “closely tied to the continuing criminal investigation of the molestation.” Styron, 34 So.3d at 732. Therefore, Styron’s right to confrontation was violated.

In the present case, the statements made by P.R.W. during the interview that were contained in the DVD were testimonial because they were intended to verify past incidents in order to aid in a criminal investigation. There is no indication in the record that the juvenile court ever determined that P.R.W. was unavailable for one of the enumerated reasons set forth in § 15-25-32(2)a., Ala.Code 1975. Therefore, D.G.’s right to confrontation was denied, and the DVD should not have been allowed into evidence.

Having concluded that the juvenile court erred in admitting the DVD of P.R.W.’s testimony, we must determine whether the error warrants reversal. Delaware v. Van Arsdall, 475 U.S. 673, 684, 106 S.Ct. 1431, 89 L.Ed.2d 674 (1986) (providing that the “harmless error” standard enunciated in Chapman v. California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967) applies to review of Sixth Amendment Confrontation Clause violations). Rule 45, Ala. R.App. P., states:

“No judgment may be reversed or set aside, nor a new trial granted in any ... criminal case on the ground of misdirection of the jury, the giving or refusal of special charges or the improper admission or rejection of evidence, ... unless in the opinion of the court to which the appeal is taken or application is made, after examination of the entire cause, it should appear that the error complained of has probably injuriously affected substantial rights of the parties.”

Further, in T.P. v. State, 911 So.2d 1117, 1124 (Ala.Crim.App.2004), this Court discussed the application of the harmless-error analysis to a review of a Confrontation Clause violation:

“In determining whether the error in this case was harmless, we first look to the Supreme Court’s opinion in Crawford v. Washington[, 541 U.S. 86 (2004) ]. In remanding that case to the Washington Supreme Court for further proceedings, it noted that the state appellate court had found the confrontation violation ‘not harmless.’ 541 U.S. at 42 n. 1, 124 S.Ct. at 1359 n. 1. From this, we infer that while Crawford v. Washington fundamentally alters the way we analyze claims of error under the Confrontation Clause, the opinion does not change the way we evaluate the effect of any such error. Accordingly, we must now determine whether the constitutional violation in this case is harmless beyond a reasonable doubt. Chapman v. California, 386 U.S. 18, 24, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967); see also Perkins v. State, 897 So.2d [457,] 465 [ (Ala.Crim.App.2004) ]; Smith v. State, 898 So.2d [907,] 918 [ (Ala.Crim.App. 2004) ].”

The State contends that, even if admission of the videotaped interview was in error, the error was harmless and does not require reversal of D.G.’s conviction. Given that there was no other evidence of first-degree sexual abuse of P.R.W. by D.G. besides the interview of P.R.W. recorded on the DVD, we cannot say that the admission of the DVD was harmless beyond a reasonable doubt. Accordingly, because D.G.’s constitutional right to confront an adverse witness was violated by the admission of the recorded interview of P.R.W., and the erroneous admission did not amount to harmless error, we reverse D.G.’s adjudication of delinquency and remand for a new trial.

REVERSED AND REMANDED.

WELCH, P.J., and KELLUM and BURKE, JJ., concur.

WTNDOM, J., dissents, with opinion.

WINDOM, Judge,

dissenting.

I disagree with the majority’s determination that D.G. adequately preserved his argument that the juvenile court violated his Sixth Amendment right to confront the witnesses against him by reviewing a DVD recording of a statement made by P.R.W. U.S. Const, amend. VI. On the contrary, I believe that any error in viewing and considering the recording of P.R.W.’s out-of-court statement without her testifying at trial was invited error. Therefore, I believe that this issue does not entitle D.G. to any relief.

“The law is well settled that a party may not induce an error by the trial court and then attempt to win a reversal based on that error.” Mobile Infirmary Med. Ctr. v. Hodgen, 884 So.2d 801, 808 (Ala.2003). In other words, “ ‘[a] party may not predicate an argument for reversal on “invited error,” that is, “error into which he has led or lulled the trial court.” ’ ” Id. (quoting Atkins v. Lee, 603 So.2d 937, 945 (Ala. 1992), quoting in turn Dixie Highway Express, Inc. v. Southern Ry., 286 Ala. 646, 651, 244 So.2d 591, 595 (1971)). Under “the doctrine of invited error ... a party may [neither] complain of error into which he has led the court,” Ex parte King, 643 So.2d 1364, 1366 (Ala.1993), nor ‘“win a reversal on an error that party has invited the trial court to commit.’ ” Mobile Infirmary Med. Ctr., 884 So.2d at 808 (quoting Neal v. Neal, 856 So.2d 766, 784 (Ala. 2002)). See also Ex parte Worley, [Ms. 1090631, Sept. 10, 2010] — So.3d -, -(Ala.2010) (holding that the State invited any error in the trial court’s pretrial dismissal of the indictment based on sufficiency of the evidence when the State “laid out for the trial court the evidence it expected to offer in opposition to Worley’s motion without informing the court that it would be premature for it to consider that evidence”). As explained below, D.G.’s actions lulled the juvenile court into viewing and considering the Southeast Alabama Child Advocacy Center’s DVD recording of P.R.W.’s statement; therefore, any error was invited.

Before trial, the State and the defendant filed a joint motion for the court to consider the Child Advocacy Center’s DVD recording of P.R.W.’s statement and a VHS videotape-recording the defense sought to use in rebuttal. (R. 4.) Both the State and the defense explained to the court that it was by agreement of the parties that the court “view the videos ... and take them into consideration after the testimony.” (R. 5.) The court then explained that both parties could be present when the court viewed the recordings. (R. 5-6.) Shortly thereafter, the State began presenting its case-in-chief.

The State presented testimony from one witness, Chad Wright, a therapist and forensic interviewer at Southeast Alabama Child Advocacy Center. After the State presented testimony from Wright, it rested its case without presenting any testimony from P.R.W. (R. 15.) After the State rested without presenting P.R.W.’s testimony, D.G. moved the court for “an acquittal or a dismissal.... ” (R. 15.) Specifically, the following occurred:

“[DEFENSE COUNSEL]: Your Honor, I am going to — I mean, I know that you’ve got two videos to watch. But I am going to verbally move for an acquittal or a dismissal, as the State has failed to prove a prima facia case.
“THE COURT: Well, not having seen the videos that y’all have both, by agreement, asked me to view, I’m not going to grant that motion at this point.”

(R. 15) (emphasis added.) The court then explained to the parties that it would watch the videos at a later date after the presentation of all the testimony.

Then, at the conclusion of all the testimony and with knowledge that the State had not presented any testimony from P.R.W., the following occurred:

“THE COURT: ... All right. Do you have a motion—
“[DEFENSE COUNSEL]: Yes, Your Honor.
“THE COURT: — or do you want to wait until I view the video, and we’ll come back, and then you can make the motions then?
“[DEFENSE COUNSEL]: I do want to point out one thing, I guess, now, while I’m thinking about it. If it’s okay, can I just put it on the record?
“THE COURT: Sure.
“[DEFENSE COUNSEL]: Basically, it’s a renewed motion for acquittal and motion to dismiss. It is incumbent upon the State in a sexual abuse first case to establish the intent to gratify the sexual desire of either party. And the State has to prove, as complete proof of the crime, that the touching or any of the conduct that occurred was done so to— again, to satisfy or gratify a sexual desire. It cannot be touching for any other purpose.
“And I don’t think the State has put on any evidence at all that anything that occurred here or may or may not have occurred here had anything to do with gratifying a sexual desire. There’s been no testimony of it. And that’s an element of the crime they have to prove.
“THE COURT: Well, I haven’t finished hearing all the testimony, because I’ve got two videos to view.
“[DEFENSE COUNSEL]: I understand.
“THE COURT: I’m not ruling on that at this point.
“THE COURT: Anything else /all want to present today?
“[DEFENSE COUNSEL]: No, Your Honor.”

(R. 69-70.)(Emphasis added.) The court then scheduled a date to watch the videos and recessed court.

Eleven days later, the court reconvened. At that point, the court, pursuant to the parties’ joint motion, had viewed and considered the Child Advocacy Center’s DVD recording. After the circuit court had viewed the DVD recording, D.G. renewed his motion for a judgment of acquittal. During his argument that the State had failed to present sufficient evidence of first-degree sexual abuse, defense counsel stated, for the first time:

‘Tour Honor, I think it’s — as well, I would also like to state my position that the State has failed to put on sufficient evidence. I haven’t had any opportunity to cross-examine the victim or witness. I know that the tape was admitted. But I don’t think that alone is sufficient to uphold a conviction for an adjudication of delinquency to my client. I think it’s patently unfair to not allow me the opportunity to cross-examine a witness.”

(R. 5.)(Emphasis added.)

Here, the court reviewed P.R.W.’s out-of-court statement based on a motion joined by D.G. At the close of the State’s case-in-chief and, then again, at the close of all the testimony, D.G. indicated to the court that he understood and desired the court to view and to consider the recordings. After the court had, pursuant to the joint motion, viewed and considered P.R.W.’s statement, D.G. made an untimely objection to the circuit court considering the recording without D.G.’s being afforded the right to confront P.R.W. Watson v. State, 439 So.2d 762, 769 (Ala.Crim.App. 1983) (“To be timely, an objection must be interposed as soon as the ground for the objection becomes apparent.”). Because D.G. did not object to the court’s consideration of the video recording and, instead, joined the motion for the court to consider the -video, any error in the court’s viewing and considering the video was invited. See Ex parte Worley, [Ms. 1090631, Sept. 10, 2010] — So.3d at-(holding that the State invited any error in the trial court’s pretrial dismissal of the indictment based on sufficiency of the evidence when the State “laid out for the trial court the evidence it expected to offer in opposition to Worley’s motion without informing the court that it would be premature for it to consider that evidence”); Lewis v. State, 889 So.2d 623, 651 (Ala.Crim.App.2003) (holding that the defendant invited error in the admission of evidence when he did not object and conceded that the evidence was relevant and admissible). Because D.G. invited the alleged Confrontation Clause violation, I do not believe that this issue entitles him to any relief. Therefore, I respectfully dissent.

      . We note that a juvenile-delinquency proceeding is quasi-criminal in nature, and a juvenile charged with a delinquent act is "accorded the rights and privileges afforded by the Constitution of the United States and the Constitution of Alabama of 1901.” § 12-15-213, Ala.Code 1975. See Driskill v. State, 376 So.2d 678, 679 (Ala. 1979).

      . D.G. also argues that the juvenile court erred in adjudicating him delinquent because, he says, the State failed to prove beyond a reasonable doubt that venue in Houston County was proper. (D.G.'s brief, Issue II, pp. 23-24.) The record, however, discloses that D.G.’s trial counsel stipulated to venue.

      .According to the bus driver and assistant principal at the school attended by D.G. and P.R.W., P.R.W.’s mother specified the date of the offense as the same date she telephoned both of these witnesses. The assistant principal testified that he was later informed that P.R.W.’s mother had altered the date. P.R.W.’s mother testified that she never specified a date during her telephone conversations with these witnesses.

      . D.G. does not contend, on appeal, that the interviewer’s testimony was improper.

      . D.G. also argued at trial that the State failed to prove that the offense occurred on the date specified in the indictment. However, D.G. does not raise the issue of a fatal variance or faulty indictment on appeal, and the date of the offense is not a material element of first-degree sexual abuse. Rule 13.2(d), Ala. R.Crim. P.

      . “In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the state and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the assistance of counsel for his defense.”
      U.S. Const, amend. VI (emphasis added).

      . On appeal, D.G. also challenges the sufficiency of the evidence. Because this Court is reversing on the Confrontation Clause claim, no discussion of the sufficiency-of-evidence claim is necessary.

      . At trial, D.G. actually argued that P.R.W.’s out-of-court statement was insufficient to sustain a juvenile adjudication because D.G. was not afforded the right to confront P.R.W. This Court, however, has held that hearsay evidence that is admitted without objection is lawful evidence. T.P. v. State, 911 So.2d 1117, 1125 (Ala.Crim.App.2004); see also Johnson v. State, 642 So.2d 528, 529-30 (Ala. Crim.App. 1994) (hearsay evidence admitted without objection is lawful evidence). Furthermore, because D.G. invited any error in the juvenile court's consideration of P.R.W.’s out-of-court statement, he waived any argument that without the out-of-court statement the State’s evidence was insufficient. See L.J.K. v. State, 942 So.2d 854, 865-66 (Ala. Crim.App.2005) (rejecting the appellant’s "argument ... that without the hearsay statements the evidence was insufficient to sustain his convictions [and holding that,] because the hearsay statements were admitted without a proper objection, they were legal evi-dence_ [TJherefore, [the appellant’s] argument regarding the sufficiency of the evidence without the hearsay statements is moot.’’).

      . In determining that D.G. adequately and timely preserved his Confrontation Clause objection, the majority states that at the close of all the testimony the "juvenile court did not want to consider any objections until after it had viewed the evidence.” 76 So.3d at 856. The majority appears to hold that the juvenile court refused to consider any arguments or motions prior to viewing the recording. Contrary to the majority’s holding, at the close of all the testimony, D.G. moved the court for a judgment of acquittal, and the circuit court explained that it would not rule on the sufficiency of the State's evidence until it had viewed all the evidence. Shortly thereafter, the court asked whether there was "[a]ny-thing else y’all want to present today?" (R. 70.) At that point, D.G. could have raised his Confrontation Clause objection; however, his counsel stated, "No, Your Honor.” (R. 70.)


source: Caselaw Access Project

author: KELLUM, Judge.

license: Public Domain

text:
    Harold Clarence FROST v. STATE of Alabama.
    CR-09-1037.
    Court of Criminal Appeals of Alabama.
    May 27, 2011.
    Rehearing Denied July 15, 2011.

      Harold Clarence Frost, pro se.
    Troy King and Luther Strange, attys. gen., and Ferris Stephens, asst. atty. gen., for appellee.
   KELLUM, Judge.

The appellant, Harold Clarence Frost, appeals from the circuit court’s denial of his petition for postconviction relief filed pursuant to Rule 32, Ala. R.Crim. P. In May 2008, Frost pleaded guilty to one count of sodomy in the first degree and to two counts of sexual abuse of a child less than 12 years old. The circuit court sentenced Frost to life in prison for the first-degree sodomy conviction and to 15 years for each of the sexual-abuse convictions. No direct appeal was taken from these convictions.

On August 6, 2009, Frost filed the instant Rule 32 petition in which he alleged (1) that he did not knowingly and voluntarily enter his guilty plea because the circuit court did not advise him that he would not be eligible for parole during the guilty-plea colloquy; (2) that he had received ineffective assistance of trial counsel because counsel failed to advise him that if he pleaded guilty to one count of first-degree sodomy and to two counts of sexual abuse of child under 12 years of age he would not be eligible for parole; and (3) that newly discovered evidence required that his guilty plea be vacated. On October 27, 2009, the State filed a response in which it argued that Frost’s claims were precluded, insufficiently pleaded, and without merit. Frost subsequently amended his petition to assert that the doctrine of equitable tolling applied to toll the limitation period as provided by Rule 32.2(c), Ala. R.Crim. P., because he learned of his ineligibility for parole only after the applicable limitations period had expired.

On January 19, 2010, the circuit court conducted an evidentiary hearing at which Frost was represented by appointed counsel. On March 22, 2010, the circuit court entered an order denying Frost’s Rule 32 petition. In its order, the circuit court found, among other things, that trial counsel’s failure to inform Frost that he would not be eligible for parole was not so prejudicial to Frost as to constitute deficient performance. The court further found that extraordinary circumstances existed that tolled the limitations period set forth in Rule 32.2(c), Ala. R.Crim. P., and, therefore, applied the doctrine of equitable tolling to Frost’s petition. This appeal followed.

The dispositive issue raised by Frost on appeal is whether his trial counsel was ineffective for failing to advise him that, under § 15-22-27.3, Ala.Code 1975, if he pleaded guilty to one count of sodomy in the first degree and to two counts of sexual abuse of a child under 12 years of age he would be ineligible for parole.

In order to prevail on a claim of ineffective assistance of counsel, a petitioner must show (1) that his counsel’s performance was deficient and (2) that he was prejudiced by the deficient performance. Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984); Ex parte Lawley, 512 So.2d 1370, 1372 (Ala.1987). The two-part Strickland v. Washington test applies to challenges to guilty pleas based on ineffective assistance of counsel. Hill v. Lockhart, 474 U.S. 52, 59, 106 S.Ct. 366, 88 L.Ed.2d 203 (1985). In the context of guilty-plea proceedings, this Court has held:

“When an appellant’s claim of ineffective assistance of counsel arises from alleged errors committed by counsel in the guilty plea process, the prejudice prong of the Strickland analysis is satisfied by the appellant’s establishing ‘that there is a reasonable probability that, but for counsel’s errors, he would not have pleaded guilty and would have insisted on going to trial.’ ”

Culver v. State, 549 So.2d 568, 572 (Ala. Crim.App.1989), quoting Hill v. Lockhart, 474 U.S. 52, 59, 106 S.Ct. 366, 88 L.Ed.2d 203 (1985). “A reasonable probability is a probability sufficient to undermine confidence in the outcome.” Strickland, 466 U.S. at 694.

In his Rule 32 petition, Frost claimed that if his trial counsel had informed him that he would be barred from parole under § 15-22-27.8, Ala.Code 1975, he would never have pleaded guilty to one count of first-degree sodomy and to two counts of sexual abuse of a child under 12 years of age but instead would have demanded a trial. In an affidavit attached to his Rule 32 petition and also included in the body of his petition, Frost stated: “My trial counsel ... never advised me that there had been an amendment to the parole statutes barring those convicted of Class A and Class B sex offenses from parole. If he had done so, I would have never entered guilty pleas.” (C. 15, 38.) At the hearing on Frost’s Rule 32 petition, Frost’s trial counsel testified that as a general rule every client asked about parole and that his standard response was that it “was up to the Department of Corrections because I don’t own you and neither does the Court after the plea.” (R. 19.)

Section 15-22-27.3, Ala.Code 1975, effective October 1, 2005, states that “[a]ny person convicted of a criminal sex offense involving a child as defined in subdivision (5) of Section 15-20-21 which constitutes a Class A or B felony shall not be eligible for parole.” Section 15-20-21(5), Ala.Code 1975, defines a “criminal offense involving a child” as “[a] conviction for any criminal sex offense in which the victim was a child under the age of 12 and any offense involving child pornography.” Sodomy in the first degree and sexual abuse of a child less than 12 years old are Class A and B felonies, respectively. See § 13A-6-63 and § 13A-6-69.1, Ala.Code 1975.

This Court in Stith v. State, 76 So.3d 286 (Ala.Crim.App.2011), recently addressed whether trial counsel was ineffective in rendering advice regarding the collateral effects of a guilty plea. In Stith, Stith alleged in his Rule 32 petition that trial counsel failed to inform him that he would be ineligible to receive correctional incentive time as provided for in § 14-9-41, Ala.Code 1975, with regard to his prison sentence if he pleaded guilty to first-degree sodomy, a Class A felony and that if he had been so informed he would not have agreed to plead guilty. Stith had declined a plea offer from the State that would have allowed him to serve a five-year split sentence because he believed a “straight” sentence would have allowed him to earn correctional incentive time. In an affidavit, Stith’s trial counsel stated that he explained to Stith that no one, except the Department of Corrections, could calculate or otherwise make a determination about the application of good-time credit to the imposed sentence. Stith, 76 So.3d at 288. The circuit court subsequently denied Stith’s Rule 32 petition.

On appeal, Stith reasserted his claims that his trial counsel had been ineffective in rendering advice regarding whether Stith was eligible to receive correctional incentive time. This Court agreed, holding that Stith’s counsel had rendered ineffective assistance and that he was prejudiced as a result. In so holding, we stated:

“Stith’s counsel did not advise him that good time (i.e., CIT) was not available for a Class A felony. However, a simple reading of the applicable statute, § 14-9-41, Ala.Code 1975, would have informed counsel that incentive time deductions are not available for an inmate convicted of a Class A felony. Counsel asserted in his affidavit:
“ ‘In fact, I carefully made sure that he understood that no one, except for the Department of Corrections, calculate[s] or make[s] a determination regarding good time credit to be applied against a sentence that had been imposed.’
“(SR. 14.)
“Although counsel was apparently unaware of the legal effect of § 14-9^41, Ala.Code 1975, and did not represent to Stith that he could earn [correctional incentive time], the advice given to Stith was incorrect and amounted to a misrepresentation regarding the tew. Merely reading the statute would have enabled counsel to properly advise Stith that he could not receive incentive time deductions for a Class A felony. It is axiomatic that the reason why counsel is appointed is to advise a client about the tew. The effect of a sentence is one of the most important matters about which a criminal-defense lawyer should be cognizant. ‘[E]very lawyer engaged in defending criminal cases knows that often a finding of guilt is a foregone conclusion, and that .the real issue centers about the severity of the punishment.’ Smith v. United States, 223 F.2d 750, 754 (5th Cir.1955). The fact that Stith, being ignorant of the tew, instigated a renegotiation of his plea which effectively doubled the duration of his imprisonment is not a factor that prevents him from pleading or prevailing on a claim of ineffective assistance of counsel.
“Whether denominated as an omission or a misrepresentation, counsel failed to advise Stith that if he accepted the plea agreement that called for a 10-year straight sentence the result would be that Stith would have to serve the full 10 years’ imprisonment. Stith’s counsel did not provide effective assistance of counsel when he incorrectly advised Stith that ‘no one, except for the Department of Corrections, [may] calculate or make a determination regarding good time credit.’ Stith was allowed to make a decision that added 5 years to the amount of time he would serve due to counsel’s failure to advise him that good-time credit (i.e., CIT) was not available.”

Stith, 76 So.3d at 292.

In Padilla v. Kentucky, 559 U.S.-, 130 S.Ct. 1473, 176 L.Ed.2d 284 (2010), resident alien Jose Padilla claimed in a postconviction petition that his trial counsel had advised him that if he pleaded guilty to a marijuana-trafficking offense he was not subject to deportation. Specifically, Padilla claimed that “his counsel not only failed to advise him of this consequence prior to his entering his plea, but also told him that he ‘did not have to worry about immigration status since he had been in the country so long.’ ” Padilla, 559 U.S. at -, 130 S.Ct. at 1478. Padilla claimed that he would have insisted on going to trial if he had not received incorrect advice from his attorney. Id. Padilla ultimately pleaded guilty, relying on his trial counsel’s erroneous advice. Id. The Supreme Court of Kentucky denied Padilla postconviction relief, holding that “the Sixth Amendment’s guarantee of effective assistance of counsel does not protect a criminal defendant from erroneous advice about deportation because it is merely a ‘collateral’ consequence of his conviction. 559 U.S. at-, 130 S.Ct. at 1478.

Padilla appealed to the United States Supreme Court; that Court granted cer-tiorari review to decide whether Padilla’s trial counsel had an obligation to advise him that the offense to which he was pleading guilty would result in his deportation. Answering that question in the affirmative, the Court held:

“Before deciding whether to plead guilty, a defendant is entitled to ‘the effective assistance of competent counsel.’ McMann v. Richardson, 397 U.S. 759, 771, 90 S.Ct. 1441, 25 L.Ed.2d 763 (1970); Strickland, 466 U.S., at 686, 104 S.Ct. 2052. The Supreme Court of Kentucky rejected Padilla’s ineffectiveness claim on the ground that the advice he sought about the risk of deportation concerned only collateral matters, i.e., those matters not within the sentencing authority of the state trial court. 253 S.W.3d, at 483-484 (citing Commonwealth v. Fuartado, 170 S.W.3d 384 (2005)). In its view, ‘collateral consequences are outside the scope of representation required by the Sixth Amendment,’ and, therefore, the ‘failure of defense counsel to advise the defendant of possible deportation consequences is not cognizable as a claim for ineffective assistance of counsel.’ 253 S.W.3d, at 483. The Kentucky high court is far from alone in this view.
“We, however, have never applied a distinction between direct and collateral consequences to define the scope of constitutionally ‘reasonable professional assistance’ required under Strickland, 466 U.S., at 689, 104 S.Ct. 2052. Whether that distinction is appropriate is a question we need not consider in this case because of the unique nature of deportation.
“Deportation as a consequence of a criminal conviction is, because of its close connection to the criminal process, uniquely difficult to classify as either a direct or a collateral consequence. The collateral versus direct distinction is thus ill-suited to evaluating a Strickland claim concerning the specific risk of deportation. We conclude that advice regarding deportation is not categorically removed from the ambit of the Sixth Amendment right to counsel. Strickland applied to Padilla’s claim.”

Padilla v. Kentucky, 559 U.S. at-, 130 S.Ct. at 1481-82 (footnotes omitted).

The Supreme Court went on to determine whether trial counsel’s performance in her representation of Padilla was in fact deficient under Strickland, finding:

“In the instant case, the terms of the relevant immigration statute are succinct, clear, and explicit in defining the removal consequence for Padilla’s conviction. See 8 U.S.C. § 1227(a)(2)(B)(i) (‘Any alien who at any time after admission has been convicted of a violation of (or a conspiracy or attempt to violate) any law or regulation of a State, the United States or a foreign country relating to a controlled substance ..., other than a single offense involving possession for one’s own use of 30 grams or less of marijuana, is deportable’). Padilla’s counsel could have easily determined that his plea would make him eligible for deportation simply from reading the text of the statute, which addresses not some broad classification of crimes but specifically commands removal for all controlled substances convictions except for the most trivial of marijuana possession offenses. Instead, Padilla’s counsel provided him false assurance that his conviction would not result in his removal from this country. This is not a hard case in which to find deficiency: The consequences of Padilla’s plea could easily be determined from reading the removal statute, his deportation was presumptively mandatory, and his counsel’s advice was incorrect.
“Immigration law can be complex, and it is a legal specialty of its own.... But when the deportation consequence is truly clear, as it was in this case, the duty to give correct advice is equally clear.
“Accepting his allegations as true, Padilla has sufficiently alleged constitutional deficiency to satisfy the first prong of Strickland.”

Padilla, 559 U.S. at -, 130 S.Ct. at 1483-84.

Generally, the failure to advise a client of the collateral consequences of a guilty plea does not constitute ineffective assistance of counsel. United States v. Campbell, 778 F.2d 764 (11th Cir.1985). However, “an accused is entitled to information concerning direct consequences of his plea.” Rumpel v. State, 847 So.2d 399, 401 (Ala.Crim.App.2002) (citations omitted). “ ‘The distinction between direct and collateral consequences of a plea “turns on whether the result represents a definite, immediate and largely automatic effect on the range of the defendant’s punishment.” ’ ” Rumpel, 847 So.2d at 402 (quoting Robinson v. State, 730 So.2d 252, 254 (Ala.Crim.App.1998) (quoting in turn State v. Ward, 123 Wash.2d 488, 869 P.2d 1062, 1075 (1994))). “A consequence has been defined as ‘collateral’ rather than ‘direct,’ where ‘it lies within the discretion of the court whether to impose it,’ or where ‘its imposition is controlled by an agency which operates beyond the direct authority of the trial judge.’ ” State v. Jimenez, 987 S.W.2d 886, 889 n. 6 (Tex.Crim.App.1999) (quoting United States v. Kikuyama, 109 F.3d 536, 537 (9th Cir.1997) (citations and internal quotations omitted)).

In the instant case, the application of § 15-22-27.3 to Frost’s sentence had “an immediate and largely automatic effect on the range of [his] punishment.” Rumpel, supra. Section 15-22-27.3 barred Frost from ever being eligible for parole. Furthermore, the imposition of § 15-22-27.3 was mandatory; it was not within the circuit court’s discretion. Also, the imposition of § 15-22-27.3 was not controlled by an agency operating beyond the direct authority of the circuit court, i.e., the Alabama Board of Pardons and Paroles. Under the particular facts and circumstances of this case, Frost’s ineligibility for parole resulted in a longer period of incarceration — the remainder of his life — and, thus, was a direct consequence of his plea of guilty to one count of sodomy in the first degree and to two counts of sexual abuse of a child under 12 years of age.

Moreover, as in Padilla and Stith, Frost’s trial counsel could have easily determined from a simple reading of § 15-22-27.3, Ala.Code 1975, that because Frost’s charges were for criminal sex offenses involving a child less than 12 years of age, Frost’s guilty plea would result in a sentence of life imprisonment without the possibility of parole. The language of § 15-22-27.3 is not complex, and its application in the instant case is clear. Frost’s trial counsel testified that he told his clients, regarding issues of parole, that it “was up to the Department of Corrections because I don’t own you and neither does the Court after the plea.” (R. 19.) Given the charges pending against Frost at that time and the charges to which he ultimately pleaded guilty, trial counsel’s advise was incorrect inasmuch as it implied that parole was a possibility and that Frost’s ability to be paroled was left to the discretion of the Department of Corrections.

As this Court recognized in Stith, “[t]he effect of a sentence is one of the most important matters about which a criminal defense lawyer should be cognizant” and the severity of a defendant’s punishment is often the real issue. 76 So.3d at 292. In this case, the severity of Frost’s punishment — life imprisonment without the possibility of parole — is exceeded only by cases in which a defendant is convicted of capital murder and is sentenced to death. The consequence of Frost’s plea of guilt in this case is as severe, if not more so, as the consequence of the defendant’s plea of guilt in Padilla. Accordingly, we find that Frost’s trial counsel’s performance was deficient.

Having found that Frost’s trial counsel’s performance was deficient, we now must determine if Frost established that he was prejudiced by his trial counsel’s deficient performance. See Strickland, supra. In the context of a guilty plea, this means that Frost must demonstrate that there is a reasonable probability that but for counsel’s errors, he would not have pleaded guilty and would have insisted instead on going to trial. See Culver v. State, 549 So.2d at 572.

In his Rule 32 petition, Frost claimed that had he known he would not be eligible for parole he would never have pleaded guilty to the charges but, instead, would have insisted on going to trial. Frost testified at the evidentiary hearing on his Rule 32 petition that his attorney advised him to plead guilty based on a belief that if Frost did not, the circuit court could give him “a sentence such as life and then a twenty-year sentence running wild.” (R. 7.) Frost’s testimony indicates that he pleaded guilty to avoid spending the rest of his life in prison and with the hope that he would eventually be released from prison at the conclusion of his sentence. Frost established that, but for his trial counsel’s errors, he would not have pleaded guilty and would have instead insisted on going to trial.

The standard of review in evaluating the denial of a Rule 32 petition is whether the circuit court abused its discretion in denying the petition. Elliott v. State, 601 So.2d 1118, 1119 (Ala.Crim.App.1992). Under the particular circumstances presented in this case, Frost proved that his counsel was ineffective and that he was prejudiced as a result of his counsel’s deficient performance. Accordingly, the circuit court abused its discretion in denying Frost’s Rule 32 petition. The judgment of the circuit court is reversed, and this case is remanded for proceedings consistent with this opinion.

REVERSED AND REMANDED.

WELCH, P.J., and WINDOM, BURKE, and JOINER, JJ., concur.

      . The circuit court did not indicate whether the sentences were to run concurrently or consecutively; therefore, they are presumed to run consecutively. Rule 26.12(a), Ala. R.Crim. P.

      . Section 15-22-27.3 provides:
      “Any person convicted of a criminal sex offense involving a child as defined in sub-
      section (5) of Section 15-20-21 which constitutes a Class A or B felony shall not be eligible for parole.”


author: PER CURIAM.

text:
    Richard KNIGHT, Appellant, v. STATE of Florida, Appellee.
    No. SC07-841.
    Supreme Court of Florida.
    Sept. 28, 2011.
    Rehearing Denied Dec. 15, 2011.

      Melodee A. Smith of Law Offices of Melodee A. Smith, Fort Lauderdale, FL, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, FL, and Lisa-Marie Lerner, Assistant Attorney General, West Palm Beach, FL, for Appellee.
   PER CURIAM.

Richard Knight was convicted of two counts of first-degree murder for the deaths of Odessia Stephens and four-year-old Hanessia Mullings, which occurred on June 28, 2000. Knight appeals his first-degree murder convictions and sentence of death. We have mandatory jurisdiction. See art. V, § 3(b)(1), Fla. Const. For the reasons explained below, we affirm Knight’s convictions and sentences of death.

FACTS AND PROCEDURAL HISTORY

The Guilt Phase

The evidence presented at trial established that Knight lived in an apartment with his cousin, Hans Mullings, Mullings’ girlfriend, Odessia Stephens, and their daughter, Hanessia Mullings. Mullings and Odessia had asked Knight to move out numerous times.

On the night of the murder, June 27, 2000, Mullings was at work. At approximately 9-p.m., Mullings spoke to Odessia, who said she was going to bed, and then Mullings left his office to run errands. Knight was at the apartment with Odessia and Hanessia.

Around midnight, an upstairs neighbor heard multiple thumping sounds on the apartment walls and two female voices, one of which was a child crying. The neighbor called 911 at 12:21 a.m. on June 28, 2000. The cries continued after the police arrived.

Officer Vincent Sachs was the first to respond. He arrived at 12:29 a.m. and noted that the lights were on in the master bedroom and hall area, and that a second bedroom’s window was slightly ajar. After knocking and receiving no response, he walked around the unit and noticed that the lights had been turned off and that the previously ajar window was now completely open and blinds were hanging out of it. Sachs shined his flashlight through the dining room window. He saw blood in the dining room and master bedroom. Further, he noticed Hanessia curled in the fetal position against the closet door. Once inside, he observed Odessia’s body in the living room. All of the doors were locked and there had been no ransacking of the apartment.

Officer Natalie Mocny arrived next and walked around the unit. She also saw the open window and noticed Knight on the other side of some hedges approximately 100 yards from the building. She beckoned him over for questioning. Officer Sachs joined Mocny. According to the officers, Knight had a scratch on his chest, a scrape on his shoulder, and fresh cuts on his hands. Although it was not raining, Knight was visibly wet. Knight was wearing dress clothes and shoes, yet told Moc-ny that he had been jogging, and that he lived in the apartment, but did not have a key to get inside. There was blood on the shirt he was wearing and on a ten-dollar bill in his possession.

The crime scene investigation recovered two wet towels in Knight’s bedroom, a shirt, boxers, and a pair of jean shorts under the sink in the bathroom near Knight’s bedroom, all of which belonged to Knight and had numerous bloodstains. Two knife blades were also recovered, one from under the mattress in the master bedroom, and another from under Odes-sia’s body.

Odessia’s blood was found in the master bedroom between the bed and the wall, on the master bedroom blinds, on the living room carpet, on the knives’ handles and blades, and on the knife holder in the kitchen. Odessia’s blood was also discovered on Knight’s boxers, shirt, jean shorts, the clothing Knight had been wearing when arrested, and his hand. Fingernail scrapings taken from Odessia contained Knight’s DNA profile.

Hanessia’s blood was found on one of the knives, on Knight’s boxers, jean shorts, and on the shower curtain. The shower curtain also contained the blood of Knight’s acquaintance, Victoria Martino.

Dr. Lance Davis, the medical examiner, observed the bodies at the scene. Odessia was found on the living room floor near the entrance with several broken knife pieces around her. She had twenty-one stab wounds: fourteen in the neck, one on the chin, and the rest on her back and chest. Additionally, she had twenty-four puncture or scratch wounds and bruising and ligature marks on her neck. The bruises appeared to have been made by a belt or similar object. She also had defensive wounds on both hands and wounds on her leg, chest, back and neck. Several of the knife wounds were fatal but none would have resulted in an instantaneous death. She had bruises from being punched on her scalp and mouth. Davis opined that Knight began his attack in the bedroom with Odessia fleeing to the living room. He estimated that Odessia was conscious for ten to fifteen minutes after the attack.

Davis discovered Hanessia on the floor next to the closet door. There were broken knife pieces around her. She had a total of four stab wounds in her upper chest and neck. Her hand had one additional stab wound and numerous defensive wounds. Hanessia’s arms and upper body had numerous bruises and scratches. There were bruises on her neck that were consistent with manual strangulation and bruises on her arms consistent with being grabbed.

Stephen Whitsett and Knight were housed together from June 29, 2000, to July 22, 2000, at the Broward County Jail. Knight confessed to Whitsett about the murders as follows: The night of the murders Knight and Odessia argued. She told him that she did not want to support him and that he would have to move. He asked for some more time because he had just gotten a job, but Odessia refused and told him to leave in the morning. Knight left the house to go for a walk and he became increasingly angry. He returned that night, confronted Odessia in her room, and they argued.

Knight went to the kitchen and got a knife. When he went back to the master bedroom, Odessia was on one side of the bed and Hanessia was on the other. He began by stabbing Odessia multiple times. Odessia eventually stopped defending herself and balled up into a fetal position. Knight then turned to four-year-old Hanessia. The knife broke while he was stabbing Hanessia, so he returned to the kitchen for another. Upon returning, Knight saw Hanessia had crawled to the closet door and was drowning in her own blood.

Again, Knight returned to the kitchen and accidentally cut his hand on one of the broken knives that he had used to stab Odessia and Hanessia. He grabbed another knife. Odessia had crawled from the master bedroom to the living room and was lying in her own blood. He rolled her over and continued his attack. Odessia’s blood covered Knight’s hands, so he wiped them on the carpet.

Knight further confessed that, after he finished with Odessia, he went to the bathroom, took off the blood soaked shorts and T-shirt, and tossed them under the sink. He showered and put on blue polo pants. He wiped down the knives in the living room. At that time, Knight heard a knock on the door and saw the police outside through the peep hole. He ran to his room and out the window. In an attempt to deflect suspicion away from himself, Knight returned to his bedroom window where he saw a female police officer.

Knight was charged by indictment on August 15, 2001, for the murders of Odes-sia Stephens and Hanessia Mullings. The jury found Knight guilty of both counts of first-degree murder.

The Penalty Phase

At the penalty phase, Knight called six witnesses, several of whom testified about his childhood and upbringing in Jamaica. His teacher, Joscelyn Walker, told the jury that Knight was a respectful and loving boy raised in a very respected family. He said that Knight did have a temper when provoked and would become extremely frustrated at times. Walker had to restrain him from time to time when Knight wanted to fight another child. Knight’s high school art teacher, Joscelyn Gopie, described Knight as a pleasant, eager boy who was quite talented at art. Gopie explained that Knight was adopted as a toddler by his family. Knight left high school before he graduated.

Barbara Weatherly is the mother of Knight’s former fiancée. She described him as a decent, honorable guy who respected her rules regarding her daughter. He always helped her younger children with their drawing. He was a quiet and peaceful person who spent a lot of time alone. One night at her house he got sick; his eyes rolled back in his head and he frothed at the mouth before passing out. They took him to the hospital where the doctor said that he needed to see a psychiatrist. She last saw him in 1998 when he left to go to the United States.

A former boss and coworker of Knight’s, Stanley Davis, also testified. Davis explained that Knight had been adopted into a well respected family and had a close loving relationship with his family members. Knight took over many of his father’s duties when his father lost a leg. Knight worked with him at a construction company and was a good worker. On one occasion Knight fell and blacked out, after which he had difficulty concentrating and became timid.

Valerie River, the defense investigator, and Knight’s attorney journeyed to Jamaica to interview Knight’s family and friends. Knight was abandoned by his mother and the Knight family found him at a hospital and took him home. He was a good brother and son. Knight’s close friends and family said that he was a nice and good person. Knight’s sister-in-law used to have Knight babysit her children but eventually stopped because he was careless around the house. Knight blacked out on one occasion. Knight’s former boss Sted-man Stevenson said he was a hard worker and a quick learner. He took Knight to Florida, and Knight decided to stay.

Knight also presented expert Dr. Jon Kotler who practices nuclear medicine and specializes in PET scans of the brain. He explained that Knight’s physical symptoms indicated that he might have a brain injury. The MRI done on him was normal. Dr. Kotler did a PET scan which he interpreted as showing asymmetrical brain activity indicating possible pathology of the brain, perhaps a seizure disorder. He could not say exactly what the pathology might be or how it might manifest itself in Knight’s behavior. Dr. Sfakianakis, another nuclear medicine doctor, read the PET results as showing only a mild difference between the brain hemispheres which was within the normal fluctuations of the brain.

Following the presentation of penalty-phase testimony, the jury unanimously recommended the death penalty for both murders.

The Spencer Hearing

The trial court subsequently conducted a Spencer hearing on August 18, 2006. At the hearing, the defense submitted the report and deposition of neuropsychologist Dr. Mittenberg who examined Knight but refused to testify at trial. The State submitted the report and deposition of Dr. Lopickalo, another neuropsychologist. Mullings and Eunice Belan also gave victim impact statements.

The Sentencing Order

Subsequent to the Spencer hearing, the trial court followed the jury’s recommendation and sentenced Knight to death. In pronouncing Knight’s sentence, the trial court determined that the State had proven beyond a reasonable doubt two statutory aggravating circumstances for the murder of Odessia Stephens: (1) a previous conviction of another violent capital felony, and (2) that the murder was especially heinous, atrocious, or cruel (HAC). The court also found three statutory aggravating circumstances for the murder of Hanessia Mullings: (1) a previous conviction of another violent capital felony, (2) HAC, and (3) the victim was under twelve years of age. The court found no statutory mitigating circumstances but found eight nonstatutory mitigators, which are set forth in our proportionality discussion.

On direct appeal, Knight raises five claims. We conclude that each issue is without merit. We also find the evidence sufficient to support Knight’s convictions, and that the death sentences are proportionate.

ANALYSIS

Hans Mullings’ Testimony

Knight first claims the trial court erred in denying his motion for mistrial following the State’s redirect examination of Hans Mullings, during which Mullings stated that Knight had a “violent background.” Specifically, Knight contends that Mull-ings’ testimony had a negative impact on his character and resulted in undue prejudice. While we agree with Knight that Mullings’ statement was improper, we disagree that the trial court erred by not granting a mistrial under these circumstances.

The facts underlying this claim are as follows. During redirect examination by the State, Mullings testified that when he arrived at his residence and saw the police, “I was just assuming that, truthfully, probably Odessia and Richard got into an argument or something because I know Richard’s violent background.” The defense objected to this testimony and moved for a mistrial. The trial court sustained defense counsel’s objection and instructed the jury to disregard the comment.

A trial court’s denial of a motion for mistrial is reviewed by an abuse of discretion standard. Cole v. State, 701 So.2d 845, 852 (Fla.1997). The granting of a motion for mistrial is not based on whether the error is “prejudicial.” Rather, the standard requires that a mistrial be granted only “when an error is so prejudicial as to vitiate the entire trial,” England v. State, 940 So.2d 389, 401-02 (Fla.2006), such that a mistrial is “necessary to ensure that the defendant receives a fair trial.” McGirth v. State, 48 So.3d 777, 790 (Fla. 2010), cert. denied, — U.S. —, 131 S.Ct. 2100, 179 L.Ed.2d 898 (2011). “It has been long established and continuously adhered to that the power to declare a mistrial and discharge the jury should be exercised with great care and caution and should be done only in cases of absolute necessity.” England, 940 So.2d at 402 (quoting Thomas v. State, 748 So.2d 970, 980 (Fla.1999)). Therefore, “[i]n order for [Mullings’ statement] to merit a new trial, the comments must either deprive the defendant of a fair and impartial trial, materially contribute to the conviction, be so harmful or fundamentally tainted as to require a new trial, or be so inflammatory that they might have influenced the jury to reach a more severe verdict than that it would have otherwise.” Salazar v. State, 991 So.2d 364, 372 (Fla.2008) (quoting Spencer v. State, 645 So.2d 377, 383 (Fla. 1994)).

It has been established that the State cannot introduce evidence attacking the character of the accused unless the accused first puts his good character in issue. See Wadsworth v. State, 201 So.2d 836 (Fla. 4th DCA 1967), quashed on other grounds, 210 So.2d 4 (Fla.1968), § 90.404(l)(a), Fla. Stat. (2006).

In the instant case, Mullings, the victims’ surviving boyfriend and father and the defendant’s cousin, testified that he rushed back to the apartment because he knew Knight had a violent background. However, as noted above, the defense objected, the objection was sustained, and the jury was instructed to disregard the remark. The statement was not so prejudicial as to prevent Knight from receiving a fair trial. See, e.g., Roman v. State, 475 So.2d 1228, 1234 (Fla.1985) (concluding that the trial court did not err in denying motion for mistrial when prosecutor’s question implied that the defendant had a prior criminal record because although the question was improper, there was other overwhelming evidence against the defendant). Accordingly, we conclude the trial court did not abuse its discretion in denying Knight’s motion for mistrial.

Allegation That Jurors Saw Knight in Shackles

Next, Knight claims that the trial court improperly denied his motion for mistrial for being shackled in the presence of the jury during the guilt phase. On the final day of jury selection and after the jury had been impaneled, two custody deputies escorted Knight past the jury room. At the same time, the bailiff briefly opened the jury room door. Knight was wearing handcuffs and shackles. Knight filed a motion for mistrial and a motion to disqualify the jury. During an evidentiary hearing on the motions, the deputies reenacted the scenario. The trial court found that no juror could have seen Knight and denied the motion for mistrial.

This Court reviews a trial court’s ruling on a motion for mistrial under an abuse of discretion standard. England v. State, 940 So.2d 389, 402 (Fla.2006). If reasonable people could differ as to the propriety of the action taken by the trial court, then the action is not unreasonable and therefore is not an abuse of discretion. Bryant v. State, 901 So.2d 810, 817 (Fla. 2005) (citing Canakaris v. Canakaris, 382 So.2d 1197, 1203 (1980)). A motion for mistrial should be granted only when it is necessary to ensure that the defendant receives a fair trial. Seibert v. State, 923 So.2d 460, 471-72 (Fla.2006).

First, it is well accepted that shackling a defendant during a criminal trial is “inherently prejudicial.” Deck v. Missouri, 544 U.S. 622, 635, 125 S.Ct. 2007, 161 L.Ed.2d 953 (2005) (quoting Holbrook v. Flynn, 475 U.S. 560, 568, 106 S.Ct. 1340, 89 L.Ed.2d 525 (1986)); see also Bryant v. State, 785 So.2d 422, 429 (Fla.2001) (quoting Bello v. State, 547 So.2d 914, 918 (Fla.1989)). Visible shackling interferes with the accused’s presumption of innocence and the fairness of the fact-finding process. Deck, 544 U.S. at 630, 125 S.Ct. 2007; Bryant, 785 So.2d at 428; see also Diaz v. State, 513 So.2d 1045, 1047 (Fla.1987). For that reason, visible shackles must only be used when “justified by an essential state interest” specific to the defendant on trial. Deck, 544 U.S. at 624, 125 S.Ct. 2007; see Bello, 547 So.2d at 918.

Here, Knight was not forced to stand trial while wearing shackles, but was merely shackled during transport when, according to his allegation, he was inadvertently viewed by several jurors. The record indicates that it is unlikely any juror saw Knight in shackles. However, even if we assumed Knight’s allegation to be true,

[w]e have long held that a juror’s or prospective juror’s brief, inadvertent view of a defendant in shackles is not so prejudicial as to warrant a mistrial. See, e.g., Singleton v. State, 783 So.2d 970, 976 (Fla.2001) (explaining that the jurors’ brief glances of the defendant while he was being transported in prison garb and shackles, standing alone, were not so prejudicial as to require a mistrial); Stewart v. State, 549 So.2d 171, 174 (Fla.1989) (finding that a new trial was not warranted where the defendant’s shackles were ruled unobtrusive and necessary by the trial court and were only barely visible beneath the table); Heiney v. State, 447 So.2d 210, 214 (Fla. 1984) (holding that the jurors’ possible inadvertent and brief sight of the defendant being transported into the courtroom in chains did not justify a mistrial); Neary v. State, 384 So.2d 881, 885 (Fla. 1980) (concluding that the jurors’ inadvertent sight of the defendant being brought into the courtroom in handcuffs was not so prejudicial as to require a mistrial). Thus, the mere fact that a prospective juror saw the shackled ankles of a person whom he believed to be [the defendant] underneath a chalkboard set up in the hallway outside the courtroom is not sufficient, standing alone, to warrant a mistrial or dismissal of the venire.

Hernandez v. State, 4 So.3d 642, 658 (Fla.), cert. denied, — U.S.—, 130 S.Ct. 160, 175 L.Ed.2d 101 (2009).

Applying that reasoning to the facts of this case, we conclude that even if there was an inadvertent sighting of Knight in shackles, it was not so prejudicial as to warrant a mistrial. Thus, the court’s decision to deny Knight’s motion for mistrial was not an abuse of discretion.

Discovery Violations

Knight also challenges the trial court’s ruling that no discovery violation occurred and alleges the trial court erred in denying Knight’s motion for mistrial based on the State’s experts’ testimony regarding DNA evidence. Knight argues that the State provided defense counsel with what appeared to be a complete DNA comparison, but then ordered further DNA comparisons without any notice to the defense. Based on the State’s discovery produced prior to trial, defense counsel relied on serologist Kevin Noppinger’s DNA analysis that Knight’s jean shorts and boxers, recovered from the apartment bathroom, contained Odessia and Hanessia’s DNA, and excluded the DNA of Knight.

At trial, however, the prosecutor presented testimony from Dr. Kevin McEl-fresh of Bode Technology Group establishing that Knight’s DNA could not be excluded from the jean shorts and boxers. Because the defense was under the impression that the jean shorts and boxers would exclude Knight, Knight argues that the State “ambushed” the defense at trial by failing to disclose the additional DNA analysis that failed to exclude Knight’s DNA from the jean shorts and boxers. Knight asserts the State violated discovery rules and that the trial court erred by failing to conduct a Richardson hearing on the alleged violation. This claim is without merit.

As articulated by this Court in Sinclair v. State, 657 So.2d 1138, 1140 (Fla.1995):

[W]hen the State violates a discovery rule, the trial court has discretion to determine whether the violation resulted in harm or prejudice to the defendant, but this discretion can be properly exercised only after adequate inquiry into all the surrounding circumstances. State v. Hall, 509 So.2d 1093 (Fla.1987). In making such an inquiry, the trial judge must first determine whether a discovery violation occurred. If a violation is found, the court must assess whether the State’s discovery violation was inadvertent or willful, whether the violation was trivial or substantial, and most importantly, what affect it had on the defendant’s ability to prepare for trial.

See also Taylor v. State, 62 So.3d 1101, 1112 (Fla.2011). Under this precedent, it is only after the trial court finds a discovery violation that it must make an inquiry into whether the State’s discovery violation was inadvertent or willful, whether the violation was trivial or substantial, and most importantly, what affect it had on the defendant’s ability to prepare for trial. See Richardson v. State, 246 So.2d 771, 775 (Fla.1971) (requiring court to determine if violation of rule relating to exchange of witness lists was inadvertent or willful, whether violation was trivial or substantial, and what effect, if any, it had upon ability of other party to properly prepare for trial).

In this case, contrary to Knight’s argument, the trial court determined that the State provided Knight with all the evidence presented at trial and that no discovery violation occurred, which is supported by the record. The record demonstrates that the questioned evidence was produced and the trial court found no discovery violation occurred after two inquiries. In fact, the trial court found that the defense was actually in receipt of all evidence, but complained of having the evidence interpreted differently by two experts and having relied on the information from the first expert. See State v. Evans, 770 So.2d 1174, 1177-78 (Fla.2000) (“When testimonial discrepancies appear, the witness’ trial and deposition testimony can be laid side-by-side for the jury to consider. This would serve to discredit the witness and should be favorable to the defense. Therefore, unlike failure to name a witness, changed testimony does not rise to the level of a discovery violation and will not support a motion for a Richardson inquiry.” (quoting Bush v. State, 461 So.2d 936, 938 (Fla.1984))). Therefore, because the trial court found that no discovery violation occurred, and that finding is supported by the record, we conclude that no Richardson hearing was required in this case.

Based on a review of the record, we hold that the trial court did not err in finding that no discovery violation occurred. Thus, a Richardson hearing was not required and the trial court properly denied Knight’s motion for mistrial. Furthermore, although a Richardson hearing was not required, the trial court nevertheless complied with this Court’s precedent in holding such a hearing.

Knight’s Motion to Seat a New Jury

Knight contends Mullings’ testimony during the guilt phase proceedings that Knight had a “violent background” required the trial court to seat a new jury for purposes of the penalty phase of the trial. Knight argues that Mullings’ testimony was so prejudicial that this Court should reverse and remand for a new penalty phase proceeding. Knight’s argument is without merit.

A trial court’s decision on whether to dismiss a venire is reviewed for an abuse of discretion. See Richardson v. State, 706 So.2d 1349, 1357 (Fla.1998); Valderrama v. State, 816 So.2d 1143, 1144 (Fla. 4th DCA 2002); Bauta v. State, 698 So.2d 860, 861-62 (Fla. 3d DCA 1997).

We have previously considered this issue as a guilt-phase claim and concluded that the trial court did not abuse its discretion in failing to grant a mistrial after Mullings made this statement. We likewise conclude that the trial court did not abuse its discretion in refusing to dismiss the venire prior to the penalty phase based on the impact of this same statement. We have held that defendants subject to the death penalty are not entitled to separate guilt and penalty phase juries. See Melton v. State, 638 So.2d 927, 929 (Fla.1994); Riley v. State, 366 So.2d 19, 21 (Fla.1978) (concluding that there is “no compulsion in law or logic” to bifurcate juries in capital case trials). Here, the jury is presumed to have followed the trial judge’s admonition to disregard Mullings’ testimony during the guilt phase. Accordingly, there is no basis that would disqualify this jury from rendering a penalty recommendation. Accordingly, the trial court did not err, and we deny relief on this claim.

Florida’s Death Sentence Statute

Knight’s final claim challenges the constitutionality of Florida’s death sentencing scheme as set forth in section 921.141, Florida Statutes (2000). This argument is without merit. We have repeatedly rejected requests to revisit this issue. See Abdool v. State, 53 So.3d 208, 228 (Fla.2010) (“This Court has also rejected [the] argument that this Court should revisit its opinions in Bottoson v. Moore, 833 So.2d 693 (Fla.2002), and King v. Moore, 831 So.2d 143 (Fla.2002), and find Florida’s sentencing scheme unconstitutional.”) (citing Guardado v. State, 965 So.2d 108, 118 (Fla.2007)), petition for cert. filed, No. 10-10531 (U.S. Apr. 25, 2011).

Sufficiency of the Evidence

Additionally, we must review the record for competent, substantial evidence to sustain Knight’s convictions for the murders of Odessia and Hanessia. See Miller v. State, 42 So.3d 204, 227 (Fla. 2010). A review of the record shows there is sufficient evidence to support the murder convictions.

As outlined above, the evidence presented at trial showed that Odessia and Hanessia died after being stabbed numerous times and strangled. There were three knives used in the attacks, all of them broken. There were a combined twenty-six stab wounds between the victims, plus additional puncture and scratch wounds. Hanessia had bruises consistent with Knight having repositioned his hands to strangle her, and Odessia had ligature marks on her neck that appeared to have been made by a belt or similar object. Odessia had bruises consistent with Knight having struck her on her head and punched her in the mouth. Both victims’ blood was found on Knight’s clothing. There was evidence of a struggle and that Knight had pursued Odessia to continue his attack on her. Both victims showed evidence of defense. Neither victim died instantly. Knight was found at the crime scene wet, although it was not raining, and claiming to have been jogging despite the fact he was wearing dress shoes. Further, Knight confessed to a fellow inmate while he was in jail awaiting trial. Accordingly, the record demonstrates that there is competent, substantial evidence to sustain Knight’s convictions for the first-degree murders of Odessia and Hanessia.

Proportionality

Finally, “[t]his Court must review the proportionality of a death sentence, even if the issue has not been raised by the defendant.” Bolin v. State, 869 So.2d 1196, 1204 (Fla.2004). Proportionality review “is not a comparison between the number of aggravating and mitigating circumstances.” Crook v. State, 908 So.2d 350, 356 (Fla.2005) (quoting Porter v. State, 564 So.2d 1060, 1064 (Fla.1990)). Instead, the Court considers the totality of the circumstances to determine if death is warranted in comparison to other cases where the death sentence has been upheld. Davis v. State, 859 So.2d 465, 480 (Fla. 2003). In addition, the heinous, atrocious, or cruel aggravator is one of the “most serious aggravators set out in the statutory sentencing scheme.” Larkins v. State, 739 So.2d 90, 95 (Fla.1999).

The trial court found two statutory aggravating circumstances for the murder of Odessia Stephens: (1) a previous conviction of another violent capital felony, and (2) HAC. The court also found three statutory aggravating circumstances for the murder of Hanessia Mullings: (1) a previous conviction of another violent capital felony, (2) HAC, and (3) the victim was under twelve years of age. The aggrava-tors in this case were weighed against eight nonstatutory mitigators: (1) Knight had a good upbringing (slight weight), (2) Knight loves his family (moderate weight), (3) Knight went to high school and excelled in art (little weight), (4) Knight was admired by the children in his neighborhood as a youth and was well regarded by the adults (little weight), (5) Knight was a valuable employee in Jamaica (little weight), (6) Knight had part-time employment at the time of the crime (little weight), (7) Knight behaved well in court (little weight), and (8) Knight is capable of forming loving relationships (moderate weight).

Based on the evidence set forth earlier, the aggravators the trial court found, and the totality of the circumstances, Knight’s death sentences are proportionate compared to other death sentences this Court has upheld. See, e.g., Aguirre-Jarquin v. State, 9 So.3d 593, 610 (Fla.2009) (finding the death sentence proportionate in a double murder where three aggravators were found for one murder, five for the other, including prior capital felony, commission during a burglary, and HAC for both and eight mitigating circumstances were found, three statutory); Smithers v. State, 826 So.2d 916, 931 (Fla.2002) (finding the death sentence proportionate in a double murder where three aggravators were found for one murder and two for the other, including HAC and prior violent felony for both, and two statutory and seven nonstatutory mitigating factors were found); Francis v. State, 808 So.2d 110 (Fla.2001) (finding the death sentence proportionate in the double stabbing murders of elderly sisters where the trial court found four aggravators for each murder, including HAC, the victims vulnerability due to age, prior violent felony based on the contemporaneous murder, that the murders were committed during the course of a robbery, two statutory mitigators, and six nonstatutory miti-gators); Morton v. State, 789 So.2d 324 (Fla.2001) (finding the death sentence proportionate in a double murder by gunshot and stabbing where trial court found three aggravators with respect to one murder and five with respect to the other, including prior violent felony based on the contemporaneous murder and cold, calculated and premeditated for both and two statutory mitigators and five nonstatutory miti-gators).

CONCLUSION

In accordance with our analysis above, we affirm Knight’s convictions for first-degree murder and sentences of death.

It is so ordered.

CANADY, C.J., and PARIENTE, LEWIS, QUINCE, POLSTON, LABARGA, and PERRY, JJ., concur.

      . Officer Amy Allen also testified that she had climbed through the open window to open the apartment door and observed a deceased black female.

      . Spencer v. State, 615 So.2d 688 (Fla.1993).

      . Knight asserts the following: (1) the trial court abused its discretion by denying Knight’s motion for mistrial based on Hans Mullings' comment that he knew Knight to have a violent background; (2) the trial court abused its discretion in denying Knight’s motion for mistrial based on the allegation that jurors saw him wearing shackles; (3) the trial court erred in ruling that no discovery violation occurred and in denying Knight's motion for mistrial based on the State’s expert’s testimony regarding DNA evidence; (4) the trial court erred in denying Knight's motion to seat a new jury based on Mullings’ testimony; and (5) the Florida death sentencing statute violates the Sixth Amendment and ignores Ring v. Arizona, 536 U.S. 584, 122 S.Ct. 2428, 153 L.Ed.2d 556 (2002).

      . Richardson v. State, 246 So.2d 771 (Fla. 1971).