author: PER CURIAM.

text:
    Ex parte Jimmy Lamar KILLINGSWORTH, Jr. (In re Jimmy Lamar Killingsworth, Jr. v. State of Alabama).
    1090589.
    Supreme Court of Alabama.
    Dec. 30, 2010.
    Rehearing Denied April 15, 2011.

      Bryan A. Stevenson and Angela L. Set-zer, Equal Justice Initiative, Montgomery; and William W. Whatley, Jr., Montgomery, for petitioner.
    Troy King, atty. gen., and Corey L. Maze, asst. atty. gen., for respondent.

       Justice Shaw was a member of the Court of Criminal Appeals when that court considered this case.

   PER CURIAM.

Jimmy Lamar Killingsworth was convicted of three counts of capital murder for the killing of Steven C. Spears, Jr., and one count of second-degree assault for the assault of Monica Spears, see § 13A-6-21(a)(2), Ala.Code 1975. The murder was made capital because it was committed through the use of a deadly weapon while the victim was in a vehicle, see § 13A-5-40(a)(17), Ala.Code 1975; because it was committed through the use of a deadly weapon fired from a vehicle, see § 13A-5-40(a)(18), Ala.Code 1975; and because it was committed during the course of a first-degree robbery or an attempt thereof, see § 13A-5-40(a)(2), Ala.Code 1975. By a vote of 7-5, the jury recommended that Killingsworth be sentenced to life imprisonment without the possibility of parole. The trial court overrode the jury’s recommendation and sentenced him to death. The court also sentenced him to 10 years in prison on the second-degree-assault conviction. Killingsworth filed a motion for a new trial, which the trial court summarily denied. The Court of Criminal Appeals then affirmed the convictions and the death sentence. Killingsworth v. State, 82 So.3d 716 (Ala.Crim.App.2009). We granted certiorari review to address several issues raised by Killingsworth, including an issue that was not presented to the Court of Criminal Appeals, which we find to be dispositive. See Rule 39(a)(2)(A), Ala. R.App. P.

During general voir dire, potential juror F.J. stated as follows in response to defense counsel’s question as to whether any potential jurors knew the families of the victims:

“Juror [F.J.]: [F.J.] I taught school with Beth Bowling [sic], and I was a teacher under Brown Bolding. And Kevin [Bolding] is my vet.
“Defense Counsel: Could you put all of that out of your mind and just sit on this jury and listen to the evidence?
“Juror [F.J.]: No, sir.
“Defense Counsel: Do you think you would be biased by that?
“Juror [F.J.]: (Nods head affirmatively).”

The jurors were asked whether any of them, for whatever reason, did not wish to sit on the jury. C.J., whose last name is the same as F.J.’s, responded that she did not want to serve.

At the conclusion of general voir dire, the trial court asked counsel, outside the presence of the jury, about jurors who had indicated that they could not be impartial. One of the jurors the trial court mentioned was C.J. After discussing several potential jurors, defense counsel was asked to name those jurors he believed should be dismissed based on their inability to be impartial. Defense counsel listed several potential jurors who had been discussed, including by last name only “J.,” without specifying a first name or initial of the juror. The trial court dismissed 14 jurors for cause, including C.J. As stated, potential juror C.J. indicated that she did not want to serve but did not give a reason. The other 13 potential jurors who were dismissed all indicated an inability to be fair and impartial. However, when the court dismissed the admittedly biased potential jurors, it did not dismiss F.J.

The next day, the trial court continued with individual voir dire. F.J. was questioned regarding pretrial publicity and her opinion on the death penalty. She was not asked any more questions regarding her relationships with the victims’ families and whether those relationships would affect her partiality. Ultimately, F.J. served on the jury. • Killingsworth now argues that his right to an impartial jury was violated because, he argues, a juror who was admittedly biased sat on the jury. We agree.

The Sixth Amendment to the United States Constitution provides, in part: “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.... ” “It is well settled that the Sixth and Fourteenth Amendments guarantee a defendant on trial for his life the right to an impartial jury.” Ross v. Oklahoma, 487 U.S. 81, 85, 108 S.Ct. 2273, 101 L.Ed.2d 80 (1988). “[T]he right to jury trial guarantees to the criminally accused a fair trial by a panel of impartial, ‘indifferent’ jurors.” Irvin v. Dowd, 366 U.S. 717, 722, 81 S.Ct. 1639, 6 L.Ed.2d 751 (1961). A defendant is “entitled to be tried by 12, not 9 or even 10 impartial and unprejudiced jurors.” Parker v. Gladden, 385 U.S. 363, 366, 87 S.Ct. 468, 17 L.Ed.2d 420 (1966). Section 6 of the Alabama Constitution gives a defendant the right to a trial “by an impartial jury of the county or district in which the offense was committed.” Article I, § 6, Ala. Const.1901.

Section 12-16-150, Ala.Code 1975, sets out the statutory challenges for cause under Alabama law. However, none of those statutory grounds are applicable in this case. In addition to the grounds set out in § 12-16-150, there are common-law grounds for challenging a veniremember for cause when those grounds are not inconsistent with the statute. The present case involves a common-law ground for challenge based on a suspicion of bias or impartiality.

“Voir dire serves the purpose of assuring a criminal defendant that this right [to an impartial jury] will be protected.” United States v. Ortiz, 315 F.3d 873, 888 (8th Cir.2002). “[T]he question whether a venireman, is biased has traditionally been determined through voir dire culminating in a finding by the trial judge concerning the venireman’s state of mind.... [S]uch a finding is based upon determinations of demeanor and credibility that are peculiarly within a trial judge’s province. Such determinations [are] entitled to deference .... ” Wainwright v. Witt, 469 U.S. 412, 428-29, 105 S.Ct. 844, 83 L.Ed.2d 841 (1985)(footnote omitted).

“Ultimately, the test to be applied is whether the veniremember can set aside his or her opinions, prejudices, or biases, and try the case fairly and impartially, according to the law and the evidence. ... This determination of a veniremember’s absolute bias or favor is based on the veniremember’s answers and demeanor and is within the discretion of the trial court; however, that discretion is not unlimited. Rule 18.4(e), Ala. R.Crim. P., provides, in part: ‘When a prospective juror is subject to challenge for cause or it reasonably appears that the prospective juror cannot or will not render a fair and impartial verdict, the court, on its own initiative or on motion of any party, shall excuse that juror from service in the case.’ Even proof that a veniremember has a bias or fixed opinion is insufficient to support a challenge for cause. A prospective juror should not be disqualified for prejudice or bias if it appears from his or her answers and demeanor that the influence of that prejudice or bias can be eliminated and that, if chosen as a juror, the veniremember would render a verdict according to the law and the evidence. Mann v. State, 581 So.2d 22, 25 (Ala.Crim.App.1991); Minshew v. State, 542 So.2d 307 (Ala.Crim.App.1988).”

McGowan v. State, 990 So.2d 931, 951 (Ala.Crim.App.2003).

In the present case, F.J. testified that she knew members of the victims’ family. The fact that a prospective juror knows the victim or members of the victim’s family does not automatically disqualify the prospective juror for cause. Harris v. State, 632 So.2d 503, 521 (Ala.Crim.App.1992), aff'd, 632 So.2d 543 (Ala.1993), aff'd, 513 U.S. 504, 115 S.Ct. 1031, 130 L.Ed.2d 1004 (1995). Unless the prospective juror indicates on voir dire that his or her relationship with the victim or the victim’s family would prevent him or her from being fair and impartial, a challenge for cause should be denied. Dunning v. State, 659 So.2d 995, 997 (Ala.Crim.App.1994). Here, F.J. stated unequivocally that she could not be impartial. Nothing in the record indicates that F.J. was asked any additional questions regarding her partiality toward the victims’ family members, which is in contrast to other jurors, whose answers regarding their partiality were equivocal. Instead, it appears that both the trial court and the parties may have been confused when the court dismissed C.J., with whom F.J. shared a last name and who never indicated that she could not be impartial, only that she did not want to serve. Nevertheless, F.J., a juror who unequivocally stated that she could not be impartial, sat on the jury that ultimately convicted Killingsworth..

The State argues that Killings-worth waived his right to challenge F.J. for cause based on the equitable doctrine of unclean hands. In support of its position, the State cites Marty v. State, 656 So.2d 416 (Ala.Crim.App.1994), and McPherson v. State, 634 So.2d 1048 (Ala.Crim.App.1993). Both Marty and McPherson involved peremptory challenges and not challenges for cause, and neither case applied the equitable doctrine of unclean hands to bar a defendant from challenging the State’s motivations for its use of peremptory challenges. Additionally, neither Marty nor McPherson involved the imposition of the death penalty, in which case Rule 39(a)(2)(D), Ala. R.App. P., allows this Court to notice any plain error or defect in the proceeding under review, whether or not brought to the attention of the trial court or the Court of Criminal Appeals or set forth in the petition and to take appropriate appellate action by reason thereof, whenever such error has or probably has adversely affected the substantial rights of the defendant.

Amendment VI of the United States Constitution guarantees an accused the right to be tried by “an impartial jury.” Article I, § 6, Constitution of Alabama 1901, protects this same right. Killings-worth’s right to an impartial jury was violated, and he is entitled to a new trial. Accordingly, we reverse the judgment of the Court of Criminal Appeals and remand the cause to that court for proceedings consistent with this opinion.

REVERSED AND REMANDED.

COBB, C.J., and LYONS, WOODALL, STUART, BOLIN, PARKER, and MURDOCK, JJ., concur.

SHAW, J., recuses himself.

      1. Charles Brown Bolding and his wife, Beth, are Monica's parents and Kevin Bolding is Monica's brother. Charles was a witness at the penalty and sentencing phases of the trial.

      . A.R. (could not be fair based on relationships with Killingsworth's family); T.P. (same); N.S. (knew Killingsworth and could not be fair); G.B. (knew the Boldings and stated it was "very well possible” that his knowledge of the family would keep him from being fair and impartial); J.B. (worked with and knew the Boldings and could not be impartial); R.B. (did not think he could base his decision only on the law and the evidence and could not be fair); W.C. (thought his friendship with the Spears family would affect his ability to be impartial); M.E. (worked with and knew the Boldings and would find it extremely difficult to be fair and would also have problems looking at pictures); C.E. (could not be impartial because the Boldings' son was his veterinarian); L.K. (worked with Mr. Bolding and knew the family too well to render a fair verdict); M.T. (could not put aside sympathy for both victims in order to come up with verdict and did not think she could look at pictures and be fair); B J. (feelings about the criminal-justice system would make it "hard” and “difficult” to be fair); and J.G. (could not be impartial because his brother was murdered).


source: Caselaw Access Project

author: BURKE, Judge.

license: Public Domain

text:
    Jimmy Lamar KILLINGSWORTH v. STATE of Alabama.
    CR-06-0854.
    Court of Criminal Appeals of Alabama.
    Sept. 30, 2011.
    William W. Whatley, Jr., Montgomery, for appellant.

      Troy King and Luther Strange, attys. gen., and Corey L. Maze, asst. atty. gen., for appellee.
   On Remand from the Alabama Supreme Court

BURKE, Judge.

The Alabama Supreme Court, in Ex parte Killingsworth, 82 So.3d 761 (Ala.2010), reversed this Court’s judgment and held that Killingsworth was denied his right to be tried by an impartial jury and that he was entitled to a new trial. We now reverse the circuit court’s judgment and remand the case for a new trial.

REVERSED AND REMANDED.

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


author: BURKE, Judge. WELCH, Presiding Judge,

text:
    Bryant Bernard EVANS v. STATE of Alabama.
    CR-09-1806.
    Court of Criminal Appeals of Alabama.
    Sept. 30, 2011.

      Tamara Harris Johnson, Birmingham, for appellant.
    Troy King and Luther Strange, attys. gen., and Tracy M. Daniel, asst. atty. gen., for appellee.
   BURKE, Judge.

Bryant Bernard Evans appeals his four convictions for first-degree robbery, violations of § 13A-8-41, Ala.Code 1975. Evans was sentenced, as a habitual offender, to life imprisonment without parole for each conviction.

On February 6, 2009, the grand jury returned four indictments against Evans, charging him with four counts of first-degree robbery. Each indictment involved a different victim but stemmed from the same set of facts. The four victims were Joshawan Brown, Larry Hunter, Michael Rutledge, and Frank Bowden. The cases were consolidated for trial, which began on May 10, 2010.

At trial, Rutledge testified that he was the owner of A Cut Beyond barbershop. According to Rutledge, one day in August 2008, when he arrived to open the barbershop for the day, a few customers were waiting for him in the parking lot. After Rutledge let those customers inside the barbershop, he “noticed a short fellow walk from the top of the hill down past [the] shop, and maybe two minutes later he turned around and came back from down in the alley and walked back up towards the shop.” (R. 109.) Rutledge explained that the man walked through the parking lot, which was right in front of his barbershop. Rutledge did not know that man. Rutledge testified that the man passed by the barbershop, but, a few minutes later, the man returned, and Evans was with him. Rutledge knew Evans because he had sold magazines to Rutledge and had gotten a shave from Rutledge in the past.

After they entered the barbershop, Evans stood in the middle of the shop, and the shorter man stood by the door holding a blue gym bag in his hands. Evans then pulled a gun from his waistband. At that time, Rutledge was cutting Brown’s hair. Initially, Evans pointed the gun at Bowden and Hunter, who were in the waiting area of the barbershop, and told them not to move. Evans then pointed the gun at Rutledge, but Brown “rushed” Evans and a “tussle” ensued. (R. 112.) Rutledge then grabbed his gun from a nearby counter and shot twice at Evans. At that time, Rutledge did not know whether either shot hit Evans, but Rutledge found out later that he had hit Evans. As Evans was fleeing the barbershop, he dropped his white baseball cap and his gun. Rutledge testified that Evans left the barbershop and then ran to the right. Rutledge further testified that he did not see the men get into their vehicle because it was parked behind the barbershop. After making sure that everyone in the barbershop was unhurt, Rutledge called emergency 911.

Rutledge testified that the police quickly responded to his call. When the police arrived at the barbershop, Rutledge met them outside. The owner of a nearby business was also standing outside, and he pointed toward an older model Chevrolet automobile that was smoking badly as it drove away and told police: “There they go right there.” (R. 116-17.) The police pursued the car and apprehended Evans along with the other man who had entered the barbershop with Evans earlier.

Hunter testified that he was sitting in the waiting area of the barbershop with Bowden when a “taller guy” and a “shorter guy” entered the barbershop. (R. 173.) The shorter guy was holding a blue bag. According to Hunter, “the taller guy came in and lifted up his shirt and brought a gun out, pointed it toward me and [Bowden], the guy that was sitting there, told us nobody move.” (R. 173.) The man with the gun then walked toward Rutledge and the man who was getting a haircut and pointed the gun at them. Hunter testified that the man getting his haircut grabbed the arm of the man with the gun and they began “tussling.” (R. 174.) Hunter then heard two gunshots. Hunter testified that the taller guy was shot in the back and that, after the taller guy was shot, he dropped his gun and fled. Hunter stated that he “did see the little ragged car going down the street that they were in, little Chevy.” (R. 179.) Shortly after the men were apprehended by the police, Hunter was able to identify them by height and size. Hunter also stated that the blue bag was outside the car when he identified the men.

Darryl Myers, a police officer for the Birmingham Police Department, testified that, on August 22, 2008, he responded to a call about a robbery in progress at the A Cut Beyond barbershop. When Officer Myers arrived at the scene, two men who were standing outside the barbershop pointed out to him that the two suspects were driving away in a tan-colored Chevrolet car. Officer Myers pursued the car and stopped it. After the car stopped, the driver got out of the car and started walking away. Officer Myers ordered the driver to stop. Initially, the driver responded that he was going to his aunt’s house, but, after Officer Myers drew his weapon and ordered the driver to get down on the ground, the driver complied with Officer Myers’s order. At trial, Officer Myers identified Evans as the person who was seated in the passenger’s seat of the car when it was stopped. Officer Myers also testified that, when he saw Evans in the car that day, Evans had been shot. Officer Myers checked the vehicle-identification number (“VIN”) of the car and the license plate that was on the car, and he discovered that the VIN and the license plate were not registered to the same person.

Evans’s medical records showed that he was admitted to UAB Hospital on August 22, 2008, with a single gunshot wound through the left side of his chest. DNA testing showed that the DNA profile of blood found at the barbershop matched Evans’s DNA profile.

At the close of the State’s evidence, Evans moved for a judgment of acquittal on the ground that the State’s evidence was insufficient to support a finding of guilty on any of the first-degree-robbery charges. Specifically, Evans alleged that the State failed to set forth sufficient evidence indicating that Evans intended to deprive any person of his property. (R. 262-64.) The trial court denied that motion. After the motion was denied, the defense rested.

On May 12, 2010, the jury found Evans guilty of four counts of first-degree robbery. On June 21, 2010, Evans filed a pro se motion for a new trial. On June 25, 2010, the trial court sentenced Evans, as a habitual offender, to life imprisonment without the possibility of parole for each conviction. On August 16, 2010, the trial court denied Evans’s motion for a new trial. On September 1, 2010, Evans appealed his convictions to this Court.

I.

On appeal, Evans first alleges that the trial court erred in denying his motion for a judgment of acquittal because, he says, the State presented insufficient evidence to support any of his first-degree-robbery convictions. Specifically, Evans appears to argue that the State did not present sufficient evidence indicating that he intended to deprive any of the victims of their property.

Section 13A-8-41(a), Ala.Code 1975, provides:

“A person commits the crime of robbery in the first degree if he violates Section 13A-8^43 and he:
“(1) Is armed with a deadly weapon or dangerous instrument; or
“(2) Causes serious physical injury to another.”

Section 13A-8-43(a), Ala.Code 1975, provides:

“A person commits the crime of robbery in the third degree if in the course of committing a theft he:
“(1) Uses force against the person of the owner or any person present with intent to overcome his physical resistance or physical power of resistance; or
“(2) Threatens the imminent use of force against the person of the owner or any person present with intent to compel acquiescence to the taking of or escaping with the property.”

Furthermore, “robbery ... is a crime against the person; it does not require that a theft be accomplished for the elements of robbery to be established.” Ex parte Verzone, 868 So.2d 399, 402 (Ala.2003). “Proof of an actual taking of property is not required to sustain a conviction for robbery.” Craig v. State, 893 So.2d 1250, 1256 (Ala.Crim.App.2004). “ ‘[T]he former crime of attempted robbery now constitutes robbery.’ ” Casey v. State, 925 So.2d 1005, 1006 (Ala.Crim.App.2005) (quoting Petty v. State, 414 So.2d 182, 183 (Ala.Crim.App.1982)).

Concerning the sufficiency of the evidence to sustain a conviction, this Court has held:

“In determining the sufficiency of the evidence to sustain a conviction, a reviewing court must accept as true all evidence introduced by the State, accord the State all legitimate inferences therefrom, and consider all evidence in a light most favorable to the prosecution.” ’ Ballenger v. State, 720 So.2d 1033, 1034 (Ala.Crim.App.1998), quoting Faircloth v. State, 471 So.2d 485, 488 (Ala.Crim.App.1984), aff'd, 471 So.2d 493 (Ala.1985). ‘ “The test used in determining the sufficiency of evidence to sustain a conviction is whether, viewing the evidence in the light most favorable to the prosecution, a rational finder of fact could have found the defendant guilty beyond a reasonable doubt.” ’ Nunn v. State, 697 So.2d 497, 498 (Ala.Crim.App.1997), quoting O’Neal v. State, 602 So.2d 462, 464 (Ala.Crim.App.1992). ‘ “When there is legal evidence from which the jury could, by fair inference, find the defendant guilty, the trial court should submit [the case] to the jury, and, in such a case, this court will not disturb the trial court’s decision.” ’ Farrior v. State, 728 So.2d 691, 696 (Ala.Crim.App.1998), quoting Ward v. State, 557 So.2d 848, 850 (Ala.Crim.App.1990). ‘The role of appellate courts is not to say what the facts are. Our role ... is to judge whether the evidence is legally sufficient to allow submission of an issue for decision [by] the jury.’ ”

Ingram v. State, 878 So.2d 1208, 1210 (Ala.Crim.App.2003), quoting Ex parte Bankston, 358 So.2d 1040, 1042 (Ala.1978). Furthermore,

“ ‘[c]ircumstantial evidence is not inferior evidence, and it will be given the same weight as direct evidence, if it, along with the other evidence, is susceptible of a reasonable inference pointing unequivocally to the defendant’s guilt. Ward v. State, 557 So.2d 848 (Ala.Cr.App.1990). In reviewing a conviction based in whole or in part on circumstantial evidence, the test to be applied is whether the jury might reasonably find that the evidence excluded every reasonable hypothesis except that of guilt; not whether such evidence excludes every reasonable hypothesis but guilt, but whether a jury might reasonably so conclude. Cumbo v. State, 368 So.2d 871 (Ala.Cr.App.1978), cert. denied, 368 So.2d 877 (Ala.1979).’ ”
“Ward, 610 So.2d at 1191-92.”

Lockhart v. State, 715 So.2d 895, 899 (Ala.Crim.App.1997).

Concerning intent, this Court has held:

“[I]ntent is a question for the jury. ‘Intent, ... being a state or condition of the mind, is rarely, if ever, susceptible of direct or positive proof, and must usually be inferred from the facts testified to by witnesses and the circumstances as developed by the evidence.’ Pumphrey v. State, 156 Ala. 103, 47 So. 156, 157 (1908).”

McCord v. State, 501 So.2d 520, 528-29 (Ala.Crim.App.1986).

In the present case, considering, as we must, all the evidence in a light most favorable to the State, we hold that a rational finder of fact could have found Evans guilty beyond a reasonable doubt of all four counts of first-degree robbery. The evidence presented by the State indicated that Rutledge saw the shorter man walk past the barbershop twice in the space of approximately two minutes and then return to the barbershop with Evans a few minutes later. Based on that evidence, the jury could have reasonably inferred that Evans and his accomplice were surveying the scene immediately before they entered the shop. The State’s evidence further indicated that the shorter man was carrying a blue gym bag that could be used to carry away property; that, after entering the shop, Evans produced a gun, threatening everyone in the shop; that, after an altercation, Evans and the shorter man fled in a car that had been parked out of sight; and that the VIN and license plate on the car were not registered to the same person. Based on those facts, contrary to Evans’s allegation, the jury could have reasonably inferred that Evans intended to compel the acquiescence of everyone in the barbershop to the taking or escaping with property.

The dissent takes issue with our conclusion that the jury could have reasonably inferred that Evans and his accomplice were surveying the scene immediately before they entered the shop. Again, Rutledge testified that he saw the shorter man walk past the barbershop twice in the space of approximately two minutes and then return to the barbershop with an armed Evans a few minutes later. Based on the circumstances as a whole, it seems highly probable that the men were surveying the scene. It is unlikely that the shorter man just happened to be strolling back and forth in front of the barbershop for pleasure a few minutes before he entered the barbershop with an armed man. In any event, it is the duty of the jury, not this Court, to determine factually whether the men were surveying the scene. We hold that the jury certainly could have reasonably inferred that the men were surveying the scene.

Next, while agreeing that the gym bag that was carried by the shorter man could be used to carry away property, the dissent points out that the gym bag could also be used to carry gym clothes, groceries, burglary tools, or a vast variety of other items. We agree. However, again, it was the duty of the jury to decide, in the context of all the evidence presented, whether the purpose of the gym bag was to carry away property or to carry something else. The jury certainly could have inferred that the purpose of the gym bag was to carry away property. It is not unreasonable or mere guesswork to conclude that when a man carrying a gym bag enters a store with an armed accomplice, the man is intending to use that gym bag to carry away property.

The dissent also takes issue with our statement that Evans and the other man fled in a car that had been parked “out of sight.” Rutledge, who was in the barbershop when Evans fled, testified that the car was parked behind the building and out of his sight. Rutledge also testified that the parking lot was in front of the barbershop and within his sight. Considering that Evans and his accomplice chose not to park their car in the parking lot in front of the barbershop before entering the barbershop wielding a gun, the jury could have reasonably inferred that Evans and his accomplice had purposefully attempted to hide the car from the sight of the people in the barbershop, whom Evans and his accomplice intended to accost.

We conclude that the State presented evidence from which the jury could have reasonably inferred that Evans intended to compel the acquiescence of everyone in the barbershop to the taking or escaping with property. Therefore, we hold that the State presented sufficient evidence to support Evans’s four convictions for first-degree robbery; thus, the trial court did not err in denying Evans’s motion for judgment of acquittal.

II.

Lastly, Evans alleges that his convictions in the two cases that named Brown and Bowden as the victims should be reversed. Specifically, Evans alleges that, in those two cases, he was “denied his fundamental right to cross-examine adverse witnesses against him as is guaranteed by the Sixth Amendment of the U.S. Constitution” because Brown and Bowden signed affidavits in support of a warrant for Evans’s arrest, but neither Brown nor Bow-den testified at trial. (Evans’s brief, at 31-32.)

Evans’s allegation is completely without merit. The affidavits signed by Brown and Bowden in support of an arrest warrant were not presented to the jury at trial. The Confrontation Clause of the Sixth Amendment to the United States Constitution gives the accused in a criminal prosecution only the right “to be confronted with the witnesses against him.” While the Confrontation Clause applies to in-court testimony and some out-of-court statements introduced at trial, Crawford v. Washington, 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004), it does not apply to out-of-court statements that are not introduced at trial. Therefore, Evans’s allegation does not present a valid ground for the reversal of his convictions.

Furthermore, this issue is barred from appellate review because Evans did not present this specific issue to the trial court.

“ ‘Review on appeal is restricted to questions and issues properly and timely raised at trial.’ Newsome v. State, 570 So.2d 703, 717 (Ala.Crim.App.1989). ‘An issue raised for the first time on appeal is not subject to appellate review because it has not been properly preserved and presented.’ Pate v. State, 601 So.2d 210, 213 (Ala.Crim.App.1992).”

Ex parte Coulliette, 857 So.2d 793, 794 (Ala.2003). “Even constitutional issues must first be raised before the trial court or they are waived.” Stanley v. State, 723 So.2d 821, 822 (Ala.Crim.App.1998). Therefore, because this issue was not properly raised at trial, the issue is waived.

Moreover, this claim is not properly before this Court for review because Evans has failed to comply with Rule 28(a)(10), Ala. R.App. P., which requires that an argument in an appellate brief contain “the contentions of the appellant/petitioner with respect to the issues presented, and the reasons therefor, with citations to the cases, statutes, other authorities, and parts of the record relied on.” This Court has stated: “ ‘It is not the job of the appellate courts to do a party’s legal research. Nor is it the function of the appellate courts to “make and address legal arguments for a party based on undelineated general propositions not supported by sufficient authority or argument.” ’ ” Hodges v. State, 926 So.2d 1060, 1074 (Ala.Crim.App.2005), quoting Pileri Indus., Inc. v. Consolidated Indus., Inc., 740 So.2d 1108, 1110 (Ala.Civ.App.1999). Furthermore, “[r]ecitation of allegations without citation to any legal authority and without adequate recitation of the facts relied upon has been deemed a waiver of the arguments listed.” Skinner v. State, 843 So.2d 820, 827 (Ala.Crim.App.2002). In his brief to this Court, Evans does not cite any legal authority to support his claim. Therefore, Evans’s bare allegation does not satisfy the requirements of Rule 28(a)(10), Ala. R.App. P.; thus, the issue is waived.

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

AFFIRMED.

WINDOM, KELLUM, and JOINER, JJ., concur. WELCH, P.J., dissents, with opinion.

WELCH, Presiding Judge,

dissenting.

Bryant Evans was convicted of four counts of first-degree robbery. The majority affirms the convictions; I respectfully dissent because the State did not present a prima facie case of first-degree robbery for any of the four counts.

The majority has accurately summarized the evidence presented by the State. The proprietor of the barbershop where the incident occurred, Michael Rutledge, testified that he knew Evans because Evans had sold him magazines on several occasions and because Evans had been a barbershop customer in the past. On the morning of this incident, Rutledge saw a man who was shorter than Evans walk past his shop, turn around, and pass by the shop again. A short while later, a male customer, Joshawan Brown, was sitting in one of the barber’s chairs and Rutledge was cutting Brown’s hair. Two other men were sitting in the waiting area of the small shop. Evans entered the shop accompanied by the shorter man, who was carrying a blue gym bag. The shorter man stayed near the door. Evans pulled a gun from his waistband, pointed it in the direction of the two waiting customers, and told the men not to move. Evans then walked toward Rutledge and Brown, and he pointed the gun above Brown’s head, at Rutledge. When Evans got closer to the men, Brown tussled with Evans and grabbed the gun. As the two tussled, Rutledge panicked, ran toward the bathroom to get away, and then grabbed his gun from a nearby counter. Rutledge fired two shots at Evans as he and the other man were leaving the barbershop; one shot struck Evans, injuring him. Evans dropped his gun inside the shop; the gun was recovered by the police. Neither Evans nor the man with the bag demanded anything from the four men in the barbershop; the evidence established that Evans said only “Don’t move,” when he first walked into the shop. One of the customers in the waiting area testified that Evans had entered the shop with another man who was carrying a bag, that Evans pointed the gun and told the waiting customers not to move, and that he then tussled with the customer in the barber’s chair. Evans lost control of the gun and he was shot as he and the other man attempted to leave the shop, the witness said.

Evans and the second man were apprehended near the scene when a police officer followed their vehicle and executed a stop. Officers determined that the vehicle identification number (“VIN”) did not match the license tag on the vehicle. The blue bag Rutledge and the customer testified about was not found inside the vehicle or at the scene. Nothing was taken from the barbershop, its owner, or the customers.

Evans argues on appeal that the trial court erred when it denied the motion for a judgment of acquittal he made at the conclusion of the State’s case. Evans argued in the trial court, as he does on appeal, that the State failed to present any evidence of robbery. In rejecting Evans’s argument on this issue, the majority has set out the relevant caselaw. My disagreement here is with the majority’s application of the law to the facts as adduced from the evidence actually presented at the trial.

The test in determining the sufficiency of evidence to sustain a conviction is whether, viewing the evidence in the light most favorable to the State, a rational fact-finder could have found the defendant guilty beyond a reasonable doubt. Ex parte Stewart, 900 So.2d 475, 476-77 (Ala.2004) (quoting Webster v. State, 900 So.2d 460, 468 (Ala.Crim.App.2004)). The role of the appellate courts is to determine whether the evidence is legally sufficient, that is, whether a jury could, by fair inference, find the defendant guilty. Id.

Section 13A-8-41(a), Ala.Code 1975, provides:

“A person commits the crime of robbery in the first degree if he violates Section 13A-8-43 and he:
“(1) Is armed with a deadly weapon or dangerous instrument; or
“(2) Causes serious physical injury to another.”

Section 13A-8-43(a), Ala.Code 1975, provides:

“A person commits the crime of robbery in the third degree if in the course of committing a theft he:
“(1) Uses force against the person of the owner or any person present with intent to overcome his physical resistance or physical power of resistance; or
“(2) Threatens the imminent use of force against the person of the owner or any person present with intent to compel acquiescence to the taking of or escaping with the property.”

After quoting the relevant principles, the majority restates its summary of the evidence and employs what appears to be conjecture and surmise to conclude that the State presented a prima facie case:

“[W]e hold that a rational finder of fact could have found Evans guilty beyond a reasonable doubt of all four counts of first-degree robbery. The evidence presented by the State indicated that Rutledge saw the shorter man walk past the barbershop twice in the space of approximately ten minutes and then return to the barbershop with Evans a few minutes later. Based on that evidence, the jury could have reasonably inferred that Evans and his accomplice were surveying the scene immediately before they entered the shop. The State’s evidence further indicated that the shorter man was carrying a blue gym bag that could be used to carry away property; that, after entering the shop, Evans produced a gun, threatening everyone in the shop; that, after an altercation, Evans and the shorter man fled in a car that had been parked out of sight; and that the VIN and license plate on the car were not registered to the same person. Based on those facts, contrary to Evans’s allegation, the jury could have reasonably inferred that Evans intended to compel the acquiescence of everyone in the barbershop to the taking or escaping with property.”

82 So.3d at 770-71 (emphasis added).

Without any testimony from the witnesses, the majority has concluded that the jury was free to conclude that the shorter man was “surveying the scene.” The testimony indicates only that the shorter man walked past the shop and turned around and that he entered the shop with Evans a few minutes later. There is no testimony that the men walked together initially, or that the shorter man was “surveying” anything — only that he walked past the shop and returned minutes later. The majority has added this post hoc interpretation of the man’s walk past the shop. So, too, did the majority add that the blue gym bag “could be used to carry away property.” The majority is correct, of course, that a gym bag could be used to carry away property, but it is equally true that the blue gym bag here could have been used to carry gym clothes or burglary tools or groceries — a vast variety of items, limited only by the carrying capacity of the bag, could have been carried in that bag. Furthermore, the majority states that the car Evans left in had been parked “out of sight.” That statement, too, overstates the facts actually established by the evidence or that could reasonably be inferred therefrom. Rutledge testified that he did not see the men get into the car after he shot Evans because the car was “parked on the back of the building.” (R. 115.) The car was not in Rutledge’s sight, but contrary to the inference drawn by the majority, there was no evidence suggesting that Evans had hidden the vehicle.

“ ‘ “This Court is well aware that where ‘circumstantial evidence points to the guilt of the accused, it will support a conviction as strongly as direct evidence.’ Newsome v. State, 570 So.2d 703, 710 (Ala.Cr.App.1989). Accord, Jones v. State, 514 So.2d 1060, 1067 (Ala.Cr.App.), cert. denied, 514 So.2d 1068 (Ala.1987). However, ‘no rule is more fundamental or better settled than that convictions cannot be predicated upon surmise, speculation, and suspicion to establish the accused’s criminal agency in the offense charged.’ Benefield v. State, 286 Ala. 722, 724, 246 So.2d 488, 485 (1971), quoted in Crafts v. State, 439 So.2d 1328, 1325 (Ala.Cr.App.1983).”

‘“Atwell v. State, 594 So.2d 202, 213 (Ala.Cr.App.1991), cert. denied, 594 So.2d 214 (Ala.1992).

“ ““ “While a jury is under a duty to draw whatever permissible inferences it may from the evidence, including circumstantial evidence, mere speculation, conjecture, or surmise that the accused is guilty of the offense charged does not authorize a conviction. [Citations omitted.] A defendant should not be convicted on mere suspicion or out of fear that he might have committed the crime. Harnage v. State, 49 Ala.App. 563, 274 So.2d 333 (1972). While reasonable inferences from the evidence may furnish a basis for proof beyond a reasonable doubt, Royals v. State, 36 Ala.App. 11, 56 So.2d 363, cert. denied, 256 Ala. 390, 56 So.2d 368 (1951), mere possibility, suspicion, or guesswork, no matter how strong, will not overturn the presumption of innocence. [Citations omitted.]
“ ““ “An inference is merely a permissible deduction from the proven facts which the jury may accept or reject or give such probative value to as it wishes. [Citations omitted.] It is a logical and reasonable deduction from the evidence and is not supposition or conjecture. Guesswork is not a substitute. [Citations omitted.] A supposition is a conjecture based on the possibility or probability that a thing could have or may have occurred without proof that it did occur. [Citation omitted.] The possibility that a thing may occur is not alone evidence, even circumstantially, that the thing did occur.’””
‘Patterson v. State, 538 So.2d 37, 42 (Ala.Cr.App.1987), conviction rev’d, 538 So.2d 43 (Ala.1988), quoting Ex parte Williams, 468 So.2d 99, 101-02 (Ala.1985).’ ”
“Mullins v. City of Dothan, 724 So.2d 83, 86 (Ala.Cr.App.1998).”

Boyington v. State, 748 So.2d 897, 901 (Ala.Crim.App.1999) (emphasis added), quoted in part in J.M.A. v. State, 74 So.3d 487, 492-93 (Ala.Crim.App.2011).

The evidence presented in this case does not justify an inference that Evans had the intent to rob the four men in the barbershop. The evidence was equally indicative of personal animus toward one of the men, particularly Rutledge, toward whom Evans was walking and at whom Evans appeared to be pointing the weapon. The statement, “Don’t move,” directed to the two men in the waiting area did not reveal an intent to rob any more than it revealed an intent to threaten, kidnap, or harm any or all the men inside the barbershop. In fact, Rutledge said only that he panicked and ran, and the witness who had been in the waiting area testified that he was frightened that Evans might shoot him, but there was no inference from their testimony that they believed Evans intended to rob anyone. I respectfully disagree with the inferences made by the majority in its summary of the limited testimony from the eyewitnesses. Although those inferences are intended to establish the missing element of “intent to compel acquiescence to the taking of or escaping with the property,” an inference is defined as “a permissible deduction from proven facts,” and I do not believe the majority’s inferences are supported by the evidence or proven facts. I have carefully examined the evidence the State presented, and I do not find it sufficient to support an affirmance of any of the four convictions of first-degree robbery. Whatever Evans’s intent might have been, the State failed to establish that he had the intent to steal, and the State failed to present evidence from which a jury could reasonably infer that first-degree robberies were committed.

Because I believe that these convictions were predicated on a combination of surmise, conjecture, speculation, and suspicion, rather than on evidence and reasonable inference, I would hold that the trial court erred to reversal when it denied Evans’s motion for a judgment of acquittal. However, because the State’s evidence supported the charge of menacing, I would remand the case to the trial court for it to adjudge Evans guilty of four counts of the lesser-included offense of menacing, § 13A-6-23, Ala.Code 1975, on which the jury was also charged (R. 323), and to sentence him accordingly. See Martinez v. State, 989 So.2d 1143 (Ala.Crim.App.2006) (appellate courts have authority to reverse a conviction and order entry of judgment on a lesser-included offense).

For the foregoing reasons, I respectfully dissent.


author: WELCH, Presiding Judge.

text:
    Steven Todd JOHNSON v. STATE of Alabama.
    CR-10-0476.
    Court of Criminal Appeals of Alabama.
    Sept. 30, 2011.

      Robert Stephen Gargis II, Florence, for appellant.
    Luther Strange, atty. gen., and Stephen N. Dodd, asst. atty. gen., for appellee.
   WELCH, Presiding Judge.

Steven Todd Johnson was charged with two counts of first-degree theft of a motor vehicle, § 13A-8-3, Ala.Code 1975, and one count of third-degree burglary, § 13A-7-7, Ala.Code 1975, for his involvement in the thefts of a Kawasaki brand “mule” utility vehicle and a four-wheeler. Johnson was also charged with unlawful possession of a controlled substance, § 13A-12-212, Ala.Code 1975. On Johnson’s motion, the eontrolled-substance charge was severed from the remaining charges. Johnson was tried before a jury and was convicted on the theft and burglary charges. The trial court sentenced Johnson, a habitual felony offender, to serve three concurrent 10-year terms of imprisonment, and the court ordered Johnson to pay court costs, attorney fees, restitution, and an assessment to the Alabama Crime Victims Compensation Fund. This appeal follows.

The State’s evidence tended to show the following. Jimmy Abernathy testified that he lived approximately one-half mile from Mildred and Alfred Johnson, the defendant’s grandparents. On the morning of December 9, 2009, Abernathy discovered that his Kawasaki-brand mule was missing from beneath a lean-to on the back of his garage, and that a go-cart had been moved from beneath the lean-to and was in front of his garage. Abernathy said that his brother, Paul Abernathy, learned of the theft, and he drove around in the area to look for the mule. Abernathy’s brother soon found the mule and telephoned Abernathy, and Abernathy went to the location where the mule had been abandoned. When Abernathy’s brother arrived, one man was on the mule and another was on a four-wheeler; the two men fled on the four-wheeler, leaving the mule. Abernathy said he and his brother recovered the mule within 20 minutes of discovering that it had been stolen. Finally, Abernathy testified that the mule had been empty when it was stolen, but when it was recovered it held a generator, a bag, and some stereo speakers, none of which belonged to Abernathy. On cross-examination, Abernathy testified that he did not see Johnson on his property, nor did he see Johnson driving the mule.

Adam McCormick testified that on the morning of December 9, 2009, he discovered that his Polaris brand four-wheeler had been stolen from his garage. McCormick stated that he had added special tires, wheels, exhaust, and a winch to the four-wheeler, and a mount for a Global-Positioning System (“GPS”) device. He reported the theft to the sheriffs department on December 9, and investigators contacted him on December 10, when they recovered it. McCormick testified that the investigators verified that the vehicle-identification number on the recovered four-wheeler was the number McCormick had given them to identify his property. He said that the ignition switch had been broken out of the four-wheeler and that the GPS mount had been taken from the gas tank where he had mounted it. McCormick also said the four-wheeler was covered in mud. McCormick said that a bag and a set of speakers had been stolen from his garage, and he identified the bag and stereo speakers recovered from Abernathy’s mule as the stolen items. McCormick testified that a window in the garage was open on the day he discovered the theft, and that the window had been closed when he last saw his four-wheeler in the garage. McCormick testified that he did not see Johnson on his property or riding his four-wheeler.

Paul Abernathy, Jimmy’s brother, stated that on the morning of December 9, 2009, after his brother discovered that his mule had been stolen, Paul drove around in the area and looked for it. Paul stated that he saw Mitchell Terry driving the mule on a gravel road, and he then saw Johnson on a four-wheeler in front of Terry. Paul examined a photograph of McCormick’s four-wheeler and he stated that it looked identical to the one Johnson was riding that day. He said that he was familiar with Johnson and that he knew him because they lived in the same community. He said he knew who Mitchell was because he had seen him in the community also. By the time Paul turned his vehicle around to go back to the location where he had seen the men, he noticed that the engine on the mule had stopped running. Paul asked Terry where he had gotten the mule, and Terry told him that they had borrowed it from a friend two or three days earlier. Paul told Terry that the mule looked like the one stolen from his brother the night before; Paul testified that he knew the mule was his brother’s because he recognized the key chain hanging from the ignition. Johnson then came up to where Paul and Terry were standing, and Terry told Johnson what Paul had said. Paul testified that Johnson and Terry “were both still trying to play it off that they borrowed [the mule] from somebody else.” (R. 96.) When Paul turned to go to his truck to telephone his brother and tell him he had found the mule, Terry got on the four-wheeler with Johnson, and Johnson drove rapidly away from the scene. On cross-examination, Paul testified that he did not see Johnson driving the mule.

James Bradley Potts, an investigator with the Lauderdale County Sheriffs Department, testified that on the morning of December 9, 2009, he received information about the thefts of a four-wheeler and a mule. When a deputy informed him that the mule had been recovered and returned to Abernathy, Potts went to Abernathy’s residence and spoke with him. He recovered from the bed of the mule a bag and speakers that belonged to McCormick; he recovered several other items from the bed of the mule but was unable to determine who owned them.

Potts testified that Johnson and Terry were suspects in the crimes and that law-enforcement officers discovered Johnson’s vehicle at Terry’s mother’s house. Terry’s mother permitted officers to search the house, and both men were found hiding inside that residence.

Charles Brian Pigg testified that Johnson is his stepbrother. He stated that he was staying with his mother on December 9, 2009, and Johnson knocked on the door that morning. When Pigg opened the door, he did not see a car or other vehicle outside. He said that Terry came to the house riding a four-wheeler that, he said, looked like the photograph of McCormick’s four-wheeler he was shown at trial. Pigg told Terry that the four-wheeler was nice and asked where he had gotten it. Terry told Pigg that his mother had purchased the four-wheeler for him. Pigg testified that Johnson left with Terry on the four-wheeler.

Lowery Davis testified that he was employed by the Lauderdale County Sheriffs Office but was assigned to duties with the United State’s Marshal’s Office to pursue fugitives and people with felony warrants. Davis testified that on December 10 or 11, 2009, Investigator Potts told him that he was looking for Terry and Johnson, and Davis said that he located Johnson’s vehicle behind Terry’s mother’s house. During a search of the house, officers found Terry hiding beneath a coffee table and Johnson hiding behind a Christmas tree; both were taken into custody, Davis said.

I.

Johnson argues that his convictions for first-degree theft of property cannot stand because, he says, the State failed to prove the elements of that crime. Specifically, he argues, as he did when he made his motions for a judgment of acquittal at trial, that § 13A-8-3, Ala.Code 1975, requires proof of theft of property with a value in excess of $2,500 or the theft of a motor vehicle of any value and that the State failed to prove either the value of the four-wheeler or the Kawasaki mule, or that the four-wheeler and the Kawasaki brand mule were “motor vehicles” as that term is defined for purposes of the theft statute. Johnson further argues:

“A ‘motor vehicle’ is defined by the Mandatory Liability Insurance Act as ‘Every vehicle that is designed and manufactured to be operated on the streets and highways of Alabama, but not operated upon rails.[’] ALA. CODE § 32-7A-2 (1975) (emphasis added)[.] According to ALA. CODE § 32-8-2, the Alabama Uniform Certificate of Title and Anti-theft Act states that the term ‘motor vehicle’ includes ‘every automobile, motorcycle, mobile trailer, semitrailer, truck, truck tractor, trailer, and other device that is self-propelled or drawn, in, upon, or by which any person or property is or may be transported or drawn upon a public highway.’ (emphasis added)[.] Also, according to ALA. CODE § 8-20A-1 (1975), Title 8 of Commercial Law and Consumer Protection defines a motor vehicle as a ‘vehicle intended primarily for use and operation on the public highways.’ (emphasis added)[.]”

(Johnson’s brief, at p. 18.)

Johnson concludes that, because neither of the “vehicles” stolen here could be licensed or driven on roadways, neither could truly be considered to be a motor vehicle as defined by the theft statute.

The State contends that the language of the theft statute is clear, so there is no need to resort to analysis of other statutes — as Johnson suggests — and it contends that this Court needs to engage in judicial construction of the statute. The State argues that the plain words of the statute, defining first-degree theft as the taking of a motor vehicle no matter its value, include utility vehicles such as the four-wheeler and the mule in this case. We agree with the State.

First, we construe Johnson’s argument to be a challenge to the trial court’s ruling on the motions for a judgment of acquittal and a challenge to the sufficiency of the State’s evidence. The oft-stated principles governing the review of a challenge to the sufficiency of the evidence are:

“ ‘In determining the sufficiency of the evidence to sustain a conviction, a reviewing court must accept as true all evidence introduced by the State, accord the State all legitimate inferences therefrom, and consider all evidence in a light most favorable to the prosecution. Faircloth v. State, 471 So.2d 485 (Ala.Crim.App.1984), aff'd, 471 So.2d 493 (Ala.1985).’ Powe v. State, 597 So.2d 721, 724 (Ala.1991). It is not the function of this Court to decide whether the evidence is believable beyond a reasonable doubt, Pennington v. State, 421 So.2d 1361 (Ala.Crim.App.1982); rather, the function of this Court is to determine whether there is legal evidence from which a rational finder of fact could have, by fair inference, found the defendant guilty beyond a reasonable doubt. Davis v. State, 598 So.2d 1054 (Ala.Crim.App.1992). Thus, ‘[t]he role of appellate courts is not to say what the facts are. [Their role] is to judge whether the evidence is legally sufficient to allow submission of an issue for decision [by] the jury.’ Ex parte Bankston, 858 So.2d 1040, 1042 (Ala.1978) (emphasis original).”

Ex parte Tiller, 796 So.2d 310, 312 (Ala.2001) (quoting Ex parte Woodall, 730 So.2d 652, 658 (Ala.1998)).

Although Johnson argues that reference to statutes outside of the Alabama Criminal Code is necessary to resolve this issue, we disagree. It is an established principle of statutory construction that words in a statute must be given their plain, natural, and commonly understood meaning, and courts are to determine and give effect to the legislature’s intent based on the clear meaning of the language in the statute. E.g., State v. Adams, [Ms. CR-08-1728, Nov. 5, 2010] — So.3d -(Ala.Crim.App.2010). Only if there is no rational way to interpret the words of the statute do we look beyond those words and engage in judicial construction.

The term “motor vehicle” is not defined in the Alabama Criminal Code. Merriam-Webster’s Collegiate Dictionary 811 (11th ed.2003) defines “motor vehicle” as “an automotive vehicle not operated on rails.” “Automotive” is defined as “of, related to, or concerned with self-propelled vehicles or machines.” Id. at 84. The trial court applied the clear and plain meaning of the statute at trial, in response to Johnson’s argument that items stolen in this case were not motor vehicles; the court stated: “A four wheeler is a vehicle. It’s motorized. It’s a motor vehicle.” (R. 174.) When Johnson sought clarification of the court’s ruling, the court then said: “A four wheeler with a motor and four wheels that’s driven around is a motor vehicle, yes, sir.” (R. 174-75.) The plain, ordinary, and commonly understood meaning of the term “motor vehicle” includes a four-wheeler and a mule, both of which are self-propelled machines. Because the language is plain and unambiguous, it is not necessary to judicially construe the statute as Johnson requests.

The trial court correctly denied the motions for a judgment of acquittal and submitted the theft charges to the jury. Johnson is not entitled to any relief on this claim of error.

II.

Johnson next argues that his convictions should be reversed because the State presented no evidence establishing that he entered a dwelling, intended to take any property, or that he took any property, and that his convictions for theft and burglary must be set aside. We construe Johnson’s arguments to be challenges to the sufficiency of the State’s evidence, and we apply the principles set out in the previous section of this opinion.

First, to the extent Johnson argues that the State failed to prove a prima facie case of theft because the mule and the four-wheeler are not motor vehicles and because the State did not prove that the stolen items each had a value in excess of $2,500, we considered that argument in the section above, and we resolved the issue adversely to Johnson. To the extent Johnson now argues that no witnesses testified that Johnson took any property, this claim was not presented in the trial court in the motions for a judgment of acquittal. When a defendant makes a motion for a judgment of acquittal and raises specific grounds, he waives all other grounds not specified. E.g., Johnson v. State, 994 So.2d 950 (Ala.Crim.App.2007). Therefore, that portion of Johnson’s claim was not preserved for review.

Second, although the State argues that Johnson did not preserve for review any challenge to the sufficiency of the evidence as to the burglary charge because he did not mention the burglary charge in his motions for a judgment of acquittal, the record reveals otherwise. (R. 129-30.) The issue was preserved for appellate review.

Finally, we reject Johnson’s argument as to the burglary conviction and hold that the trial court did not err when it denied the motions for a judgment of acquittal.

“A person commits the crime of burglary in the third degree if he knowingly enters or remains unlawfully in a building with intent to commit a crime therein.” § 18A-7-7, Alabama Code 1975.

“The crime of burglary may be proved by circumstantial evidence where such circumstantial evidence presents a jury question. Wallace v. State, 52 Ala.App. 331, 292 So.2d 140 (Ala.Crim.App.1974). The corpus delicti is a fact, proof of which may be shown by circumstantial evidence, and, if there is a reasonable inference to prove its existence, the Court should submit to the jury for consideration the question of the sufficiency and weight of the evidence tending to support that inference. Godfrey v. State, 333 So.2d 182 (Ala.Crim.App.1976); Burlison v. State, 369 So.2d 844 (Ala.Crim.App.1979).”

McConnell v. State, 429 So.2d 662, 665 (Ala.Crim.App.1983).

“ ‘Upon proof of a burglary, the possession soon thereafter of goods recently taken in a burglary affords a logical inference in the absence of a satisfactory explanation that the possessor was the burglar.’ Trammell v. State, 377 So.2d 12 (1979). It is also well founded in this state that, when a breaking and entering is shown by the evidence and it appears that, at the time of the breaking, certain property was stolen, which is later found in the possession of the defendant, this, if unexplained to the satisfaction of the jury, would be sufficient to support a judgment of guilt. Pugh v. State, 376 So.2d 1135 (Ala.Crim.App.), writ denied, Ex parte Pugh, 376 So.2d 1145 (Ala.1979); McConnell v. State, 429 So.2d 662 (Ala.Crim.App.1983); Moon v. State, [460 So.2d 287 (Ala.Crim.App.1984)].
“In this cause, the defense attempted to establish an alibi by placing the appellant in Florida. This presents a question for the jury which was resolved against Marlow. It is true that no one saw Marlow on the premises on the date of the burglary. No fingerprints were found.
“However, sufficient evidence was placed before the jury to sustain Mar-low’s conviction. Thus, the trial court’s denial of the appellant’s motion for judgment of acquittal and for a motion for new trial was not in error.”

Marlow v. State, 538 So.2d 804, 810-11 (Ala.Crim.App.1988).

The State in this case presented evidence showing that McCormick discovered his four-wheeler was missing from his garage and that a window to the garage that had been closed when McCormick was last in the garage had been opened, allowing the person or persons responsible for taking the four-wheeler to gain entry into the garage. On the same morning McCormick discovered that his vehicle had been stolen, Paul Abernathy saw Johnson riding a four-wheeler, and after Paul questioned Terry about the mule Terry had been riding Terry got on the four-wheeler and he and Johnson sped away from the location. Furthermore, when law-enforcement officers later searched a residence for Johnson and Mitchell, Johnson was found hiding behind a Christmas tree. As it did in Marlow, the State presented sufficient evidence to sustain the conviction for third-degree burglary. Johnson presented an alibi — that he was with his girlfriend that day — and he implied that Terry had stolen the four-wheeler. The defense theory of the case presented a question for the jury, and the trial court properly allowed the case to proceed to the jury for its resolution of the conflicting evidence. Thus, even though the evidence was weak, we hold that the State presented sufficient evidence, when viewed in the light most favorable to the State, from which the jury might have reasonably found Johnson guilty beyond a reasonable doubt.

The trial court did not err when it denied the motions for a judgment of acquittal, and Johnson is not entitled to relief on this claim of error.

For all the foregoing reasons, the judgment of the circuit court is due to be affirmed.

AFFIRMED.

WINDOM, KELLUM, BURKE, and JOINER, JJ., concur.