author: THOMAS, Judge.

text:
    Daniel WARREN v. Carol WARREN.
    2100785.
    Court of Civil Appeals of Alabama.
    April 20, 2012.

      Finis Alonza Royal, Scottsboro, for appellant.
    Gary W. Lackey of The Lackey Law Firm, Scottsboro, for appellee.
   On Application for Rehearing

THOMAS, Judge.

The opinion of February 3, 2012, is withdrawn, and the following is substituted therefor.

Daniel Warren (“the father”) and Carol Warren (“the mother”) were divorced in August 2000. The parties’ separation agreement was incorporated into the divorce judgment. According to the divorce judgment, the father “agree[d] to pay all reasonable college costs for the parties’ minor child.”

In February 2008, before the parties’ child graduated from high school, the mother filed a petition seeking to hold the father in contempt for failing to pay expenses associated with the child’s acceptance to Troy University, including the fee incurred for her college-admission testing, registration expenses, and “other expenses associated with college costs.” The mother further sought to have the father “pay in advance of each semester a sum of money equal to the average cost of attendance for an in state student at Troy University.”

The father answered the mother’s petition and filed a counterclaim, requesting that the trial court modify the postminority-educational-support provision in the divorce judgment because the father had lost the job he had held at the time of the divorce and his income had been drastically reduced as a result. The father also requested that both parents be required to pay a portion of the child’s college expenses, that the mother and the child be required to seek financial aid, that the award of postminority educational support be limited to the attainment of a bachelor’s degree within five years, that the child be required to be a full-time student and to earn at least a “C” average, and that the amount of support be limited to the cost of tuition, room and board, and activity fees at a state-supported college.

The case was first set for a hearing in August 2009. On that date, however, the case was not called for trial, so the trial court entered an order on October 26, 2009, requiring the father to pay $650 per month toward the child’s college expenses pending the trial on the matter. The case was apparently set for trial on October 4, 2010, after which, on February 10, 2011, the trial court entered an order stating: “The Parties consented to entry of judgment against [the father] for the matters alleged in the petition. Judgment is hereby rendered against [the father] in the amount of $74,821.74 for which execution may issue.”

The father filed a motion, purportedly pursuant to Rule 59, Ala. R. Civ. P., seeking to have the February 2011 order set aside; in that motion he denied having consented to the entry of an order against him. In his motion, the father further alleged that his counsel and counsel for the mother had discussed the amount the father owed and that they had not been able to agree on an amount due. However, the father alleged, counsel for the mother had delivered a proposed order to the trial court on February 9, 2011, without specifying that the father had objected to the proposed order. According to the father, when his counsel arrived at the courthouse on February 11, 2011, to file a formal objection to the proposed order, the clerk’s office informed her that the trial court had already entered the proposed order filed by the mother’s counsel as its order.

In his motion, the father also complained that the amount of postminority educational support he was ordered to pay was not supported by any evidence because the only “evidence” presented to support the amount was a list of expenses submitted by the mother as an exhibit to her proposed order. The father said that he had objected to some of those expenses listed by the mother as either not being actual college-related expenses (e.g., the amount of money the automobile for the child purportedly would cost, although the mother had allegedly given the automobile to the child) or being exorbitant or unsupported by documentation (e.g., an alleged $250 per week charge for “miscellaneous expenses, including gasoline, food, clothing, and supplies,” although the mother had already listed “Mise. Supplies” totaling $4,526.09). To support his claim that the nearly $75,000 he was ordered to pay was unreasonable, the father presented documentary evidence that, he contended, indicated that the reasonable cost of tuition, room and board, books and supplies, and other expenses for attending Troy University totaled $14,700 per year. According to the father, he had earned only $87,087.22 in 2010, an amount that is less than half the amount of postminority educational support the trial court ordered the father to pay in the February 2011 order. The father further requested credits against the amount of postminority educational expenses he was required to pay. Finally, the father requested that the trial court set aside the February 2011 order and hold an evidentiary hearing on the matter.

The trial court denied the father the relief he requested in his motion. The trial court did, however, remove the sentence in the February 2011 order that indicated that the father had consented to the order. The father appeals.

Before we may consider the arguments presented by the father on appeal, we must first consider whether we have jurisdiction over this appeal. This court can notice a jurisdictional issue ex mero motu. See J. Bryant, LLC v. City of Birmingham, 23 So.3d 675, 677 (Ala.Civ.App.2009) (citing Ruzic v. State ex rel. Thornton, 866 So.2d 564, 568-69 (Ala.Civ.App.2003), abrogated on other grounds by F.G. v. State Dep’t of Human Res., 988 So.2d 555 (Ala.Civ.App.2007)). Generally, an appeal may be taken only from a final judgment. Ala.Code 1975, § 12-22-2. A final judgment is “one that conclusively determines the issues before the court and ascertains and declares the rights of the parties involved.” Bean v. Craig, 557 So.2d 1249, 1253 (Ala.1990).

As noted above, in response to the mother’s contempt petition, the father filed a counterclaim seeking a modification of the postminority-educational-expense provision of the parties’ divorce judgment. The trial court ordered the father to pay $74,821.74 in postminority educational support based on the allegations contained in the mother’s contempt petition. However, the trial court failed to address the father’s request for a modification of his postmi-nority-educational-support obligation in the February 2011 order. See Jordan v. Jordan, 717 So.2d 822, 822 (Ala.Civ.App.1998) (dismissing an appeal from a judgment adjudicating a father’s. claim to reopen a divorce judgment but failing to adjudicate the mother’s counterclaim seeking a child-support modification). Because the trial court’s February 2011 order does not “conclusively determine[] the issues before the court and ascertain[ ] and de-claren the rights of the parties,” Bean, 557 So.2d at 1253, we must dismiss the appeal as having been taken from a nonfi-nal judgment.

Although a trial court may certify an order deciding fewer than all the pending claims or resolving the issues involving fewer than all the parties as a final judgment pursuant to Rule 54(b), Ala. R. Civ. P., we do not believe that a Rule 54(b) certification would be appropriate in the present case. Because the trial court is permitted to make any modification of the father’s postminority-educational-support obligation retroactive to the date he filed his counterclaim seeking a modification, see King v. Barnes, 54 So.3d 900, 905 (Ala.Civ.App.2010), and Fielding v. Fielding, 843 So.2d 766, 769 (Ala.Civ.App.2002), which would impact the amount of postmi-nority educational support that the father was responsible for paying between the date of the filing of his counterclaim and the date of the February 2011 order, we may not simply remand this cause with instructions that the trial court consider certifying the February 2011 order as final without incurring the risk of inconsistent results. Instead, we dismiss the appeal so that the trial court can properly adjudicate the pending counterclaim seeking modification of the father’s postminority-edu-cational-support obligation by holding a trial on the merits of that counterclaim and, if necessary, adjust the amount of postminority educational support awarded in the February 2011 order.

The mother’s request for an attorney fee on appeal is denied.

APPLICATION OVERRULED; OPINION OF FEBRUARY 3, 2012, WITHDRAWN; OPINION SUBSTITUTED; APPEAL DISMISSED WITH INSTRUCTIONS.

THOMPSON, P.J., and PITTMAN, BRYAN, and MOORE, JJ., concur.

      . Because the February 10, 2011, order was not a final judgment because it failed to resolve the father’s counterclaim seeking a modification of his postminority-educational-support obligation, see discussion, infra, the father's motion was not a Rule 59 motion, which type of motion can be directed only to a final judgment. Ex parte Troutman Sanders, LLP, 866 So.2d 547, 550 (Ala.2003) (quoting Malone v. Gainey, 726 So.2d 725, 725 n. 2 (Ala.Civ.App.1999)).

      . Both parties agree on appeal that the trial court took no testimony and was presented no documentary evidence at any time during the pendency of this proceeding regarding either the postminority educational expenses anticipated to be incurred, or actually incurred, by the child or the father's ability to pay.

      . The primary exception to the requirement that an appeal be taken from a final judgment is when a trial court has certified a judgment deciding fewer than all the pending claims or resolving the issues involving fewer than all the parties as a final judgment pursuant to Rule 54(b), Ala. R. Civ. P. See Bean, 557 So.2d at 1253.

      . The mother argues in her application for a rehearing that the trial court's denial of the father’s motion seeking reconsideration of the February 2011 order resulted in a denial of the father’s counterclaim seeking modification of his postminority-educational-support obligation. She argues that because the trial court was permitted to accord the proper relief to the parties based on the evidence presented, see, generally, Rule 54(c), Ala. R. Civ. P. (permitting a trial court to accord a party the relief called for by the evidence at trial even when a party has not specifically requested such relief), we must presume that the trial court denied the father’s request for modification of his postminority-educational-support obligation when it denied the motion to reconsider the February 2011 order. We are not convinced by the mother’s argument.
      A trial court is permitted to enter an order resolving less than all the claims before it; an order resolving fewer than all the claims before the court is not a final judgment unless certified as such by the trial court. See Rule 54(b), Ala. R. Civ. P. An interlocutory order may be reconsidered by a trial court on its own motion or on the motion of any party at any time before entry of a final judgment. Lanier v. Surrett, 772 So.2d 1187, 1188 (Ala.Civ.App.2000) ("An interlocutory order is subject to revision at any time before the court enters a final judgment that disposes of all the issues.”). The mother contends that the fact that the trial court denied the father's motion seeking reconsideration of the February 2011 ■ order renders that interlocutory order final because the trial court again failed to address the father’s claim for modification. The trial court clearly left the father's modification claim pending by failing to address it in the February 2011 order; its continued failure to address that same claim by not mentioning it when denying the motion to reconsider the February 2011 order does not have the effect of denying the father’s modification request. If it did, every interlocutory order that a trial court revisits at the behest of a party would become final if the trial court denied the request for reconsideration. The fact that the father included a "prayer for general relief” in his motion seeking reconsideration of the February 2011 order has no effect on our reasoning.

      . We note that we have required retroactive application of postminority-educational-sup-port orders since Bayliss v. Bayliss, 575 So.2d 1117 (Ala.Civ.App.1990), was decided.

      . The trial court's failure to address the father’s counterclaim for modification of his postminority-educational-support obligation may have been prompted by its belief that the mother could choose between enforcing the settlement agreement between her and the father or seeking enforcement of the divorce judgment through a contempt petition, a choice to which the father refers in his motion seeking reconsideration of the February 2011 order. However, a settlement agreement incorporated into a divorce judgment, like the one in the present case, loses its contractual nature, is subsumed into the divorce judgment, and must be enforced like any other judgment. Turenne v. Turenne, 884 So.2d 844, 848 (Ala.2003); East v. East, 395 So.2d 78 (Ala.Civ.App.1980) (explaining that, if an agreement is not merged into a judgment, the agreement may be enforced by a civil action but that, if an agreement is merged into a judgment, only the judgment may be enforced); Thomas v. Campbell, 960 So.2d 694, 697 (Ala.Civ.App.2006) (quoting Ralls v. Ralls, 383 So.2d 857, 859 (Ala.Civ.App.1980), overruled on other grounds, Ex parte Bayliss, 550 So.2d 986, 994 (Ala.1989)) ("Rather, the trial court's consideration of a petition to modify such an undertaking is governed by the principle that ‘an agreement between the parties fixing child support payments, when incorporated into a judgment, becomes merged into the judgment and thereby loses its contractual nature to the extent that a court of equity has the power to modify the decree when changed circumstances so justify.' ”); see also Lindenmuth v. Lindenmuth, 66 So.3d 267 (Ala.Civ.App.2010). Thus, the mother must seek to enforce the father's postminority-educational-support obligation through a contempt petition, and the father is entitled to seek a modification of his postminority-educational-support obligation in response to her contempt petition.


source: Caselaw Access Project

author: PITTMAN, Judge.

license: Public Domain

text:
    MOBILE AIRPORT AUTHORITY v. Robert ETHEREDGE.
    2100307.
    Court of Civil Appeals of Alabama.
    April 20, 2012.

      C. Robert Gottlieb, Jr., Mobile, for appellant.
    John R. Spencer, Mobile; and C.S. Chie-palich, Mobile, for appellee.
   PITTMAN, Judge.

The Mobile Airport Authority (“the employer”) appeals from a judgment awarding Robert Etheredge (“the employee”) permanent-total-disability benefits under the Alabama Workers’ Compensation Act, § 25-5-1 et seq., Ala.Code 1975 (“the Act”), for injuries to his foot and lower back. We affirm.

Facts and Procedural History

At the time of trial, the employee, a 57-year-old airfield technician at the Mobile Regional Airport, had been working for the employer for more than 20 years. In 2006, his responsibilities included moving heavy equipment, cutting grass, repairing fence lines, and ensuring that the lights on the runway were operational. On March 31, 2006, the employee was injured at work when a 300-pound manhole cover fell on his left foot, fracturing the first metatarsal, the long bone leading to the big toe. It is undisputed that the employee promptly reported the accident; that the employer paid for the employee’s medical treatment; and that, with the exception of 2 periods totaling 13 months during which the employee returned to work, the employer paid temporary-total-disability benefits from March 31, 2006, through June 2009.

The employee was initially treated by Dr. Michael Cockrell, an orthopedic surgeon, who put a cast on the employee’s foot and later provided the employee with a walking boot. The foot fracture healed without complication, and the employee returned to work briefly from May 15, 2006, until June 23, 2006, at which time he returned to Dr. Cockrell, complaining of pain, swelling, and discoloration of his foot. Dr. Cockrell’s partner, Dr. William Park, diagnosed the employee as suffering from reflex sympathetic dystrophy (“RSD”), or complex regional pain syndrome (“CRPS”), and referred him to Dr. Thomas Yearwood, a pain-management specialist, in July 2006. Over the course of the next several months, Dr. Yearwood administered three sympathetic nerve blocks and prescribed narcotic pain relievers, which treatments provided only temporary relief to the employee. In October 2006, Dr. Yearwood surgically implanted a dual-electrode intraspinal neurostimulator in the employee’s back. The neurostimulator relieved most of the employee’s pain, and, after undergoing a month-long work-hardening program at the direction of Dr. Park, the employee was able to return to work without restrictions in January 2007.

The employee’s job duties required him to walk at least half a mile every day and to operate a tractor. The employee testified that soon after he had returned to work he had experienced pain in his foot again and had begun to favor his left foot and to walk with a limp. The employee, who had previously been diagnosed with degenerative-disk disease, also experienced lower-back pain that became progressively worse, especially with the bouncing that occurred while he was riding a tractor and mowing grass on the airfield. Nevertheless, the employee said that because he had been forbidden, upon pain of immediate dismissal, to take narcotic pain relievers at work, he had worked through the pain. Dr. Yearwood’s office note of August 6, 2007, states:

“[T]he bumping and bouncing associated with heavy equipment does not help [the employee’s] back any, but he is still coping. ' Exam shows bilateral paraspinous muscle spasticity and trigger points throughout the lumbar paraspinous musculature. He does have tender lumbar facets in the L3^i, L4-5, and L5-S1 distributions. He also demonstrates some decreased sensation and dysesthe-sias[] in his left L5-S1 distribution.”

According to the employee, he was mowing grass near a fence on the airfield in December 2007 when the tractor he was riding ran over a hole that had been left unfilled after an old fence post had been removed. The employee testified that the jolt from the tractor accident had caused him to experience a searing pain that, he said, felt like the electrodes of the neuros-timulator had been “ripped out” of his spine.

On January 7, 2008, the employee consulted Dr. Yearwood, whose office note for that day states:

“[Recently while [the employee] was riding a tractor at work he hit a very large bump which caused the stimulator leads to migrate out of the epidural space prohibiting his stimulator [from] providing] any pain control whatsoever. He is being admitted to undergo lead revision and repositioning in order to sustain optimal pain control.”

On January 10, 2008, the employee underwent a surgical procedure to reimplant the neurostimulator device and to reposition the electrodes. The employee never returned to work after that surgery. He continued to complain of pain at the site of the incision, more pain in his lower back, and pain in his foot. He participated in 10 work-hardening sessions in April 2008, and he reported to Dr. Yearwood that those sessions had caused him to experience “increased pain [in his lower back, radiating into his legs,] ... and a lack of tolerance to general conditioning activities.” Dr. Yearwood attempted to discover the neurological source of the employee’s pain, to adjust the stimulator, and to alter the employee’s prescription medications, but nothing provided the employee with lasting relief. Dr. Yearwood referred the employee to a neurologist, Dr. Terry Millette, who performed a nerve-conduction study on June 10, 2008. That study revealed no significant abnormalities. Dr. Millette’s diagnosis was “[a]typical spinal discomfort with unusual history; cannot rule out mechanical lumbar difficulties.” His recommendation was to consider “mechanical assessment of the thoracolumbar spine.”

The employee underwent a functional-capacities evaluation (“FCE”) on September 3, 2008. The FCE placed the employee in the “light physical demand” category. David Dimmick, the exercise physiologist who conducted the FCE, concluded that the employee had put forth good effort and had demonstrated no gross symptom magnification but testified that the employee had scored positive on two of five Waddell symptom-magnification categories, one of which was “an increase in low back pain [after] light palpation and light pinching,” a reaction that, Dimmick acknowledged, could be explained by the employee’s dy-sesthesia, a condition of which Dimmick had been unaware during the FCE.

On November 7, 2008, Dr. Yearwood performed a provocative diskography of the employee’s lumbar spine. That diagnostic test demonstrated “rather severe disk derangements at L3, L4, and L5, with a developing degenerative pattern in the L2 disk.” Dr. Yearwood concluded:

“The work-related tractor accident has accelerated the degenerative disk disease and pain in [the employee], suggesting an end-plate compromise at more than one level. The axial loading needed to dislodge the implanted neu-rostimulator system is seen to have been sufficient to create vertebral column pathology of a traumatic nature as well, and explains quite a lot of the [employee’s] symptoms, which heretofore seemed to be somewhat inconsistent.”

In deposition testimony, Dr. Yearwood concluded that the employee’s altered gait that resulted from the 2006 foot injury and the traumatic jolt of the 2007 tractor accident had combined to aggravate or accelerate the employee’s preexisting degenerative-disk disease.

At the request of Millennium Risk Managers (“MRM”), the third-party administrator of the employer’s workers’ compensation carrier, Dr. Tim Revels, an orthopedic surgeon, performed an independent medical evaluation of the employee on January 28, 2009. Based on that evaluation and a review of the employee’s medical records, Dr. Revels determined that the employee had reached maximum medical improvement for the foot injury on January 28, 2009. He opined that the employee’s degenerative-disk disease had been caused by the natural aging process and “wear and tear” over the years. He stated that neither the implantation of the neurostimulator device nor the dislodging of the stimulator leads could have caused, aggravated, or been correlated in any way with the employee’s degenerative-disk disease. He agreed with Dr. Yearwood, however, that the tractor jolt in 2007 could have aggravated the employee’s preexisting degenerative condition. Dr. Revels stated that he would recommend fusion surgery to correct the employee’s disk derangements only as a last resort.

On August 12, 2009, the employee filed a complaint seeking benefits for a September 2007 injury to his left foot. On March 19, 2010, the employee amended his complaint, asserting that the foot injury had occurred on March 31, 2006, after which, the employee alleged, he had suffered an injury to his back “in the latter part of 2007 or the early part of 2008” that had aggravated his preexisting degenerative-disk disease and that had combined with the earlier foot injury to render him permanently and totally disabled.

The employer answered the amended complaint, acknowledging that the employee had suffered a compensable injury to his foot on March 31, 2006, but denying that it had had any notice of the second alleged occurrence, a back injury “in the latter part of 2007 or the early part of 2008,” and asserting the bar of the statute of limitations. On September 22, 2010, the trial court entered a judgment determining that the employee had suffered an initial injury to his foot on March 31, 2006, and that, as a consequence of favoring the injured foot, he had developed an altered gait that had contributed to his lower-back pain. The court further determined that the employee had sustained a second work-related injury, one to his lower back, in December 2007, of which the employer had received notice. Finally, the trial court determined that the employee’s altered gait that was a consequence of the 2006 foot injury and the traumatic jolt of the 2007 tractor accident combined to cause an aggravation and acceleration of the preexisting degenerative-disk disease in the employee’s lower back, thereby rendering him permanently and totally disabled. The trial court awarded permanent-total-disability benefits under the Act in accordance with those determinations. The employer’s postjudgment motion was denied, after which it filed a timely appeal to this court.

Standard of Review

Our review is governed by the Act, which states in pertinent part: “In reviewing the standard of proof ... and other legal issues, review by the Court of Civil Appeals shall be without a presumption of correctness.” Ala.Code 1975, § 25-5-81(e)(1). See also Ex parte Trinity In dus., Inc., 680 So.2d 262, 268 (Ala.1996). “In reviewing pure findings of fact, the finding of the circuit court shall not be reversed if that finding is supported by substantial evidence.” Ala. Code 1975, § 25-5-81(e)(2). Substantial evidence is “ ‘evidence of such weight and quality that fair-minded persons in the exercise of impartial judgment can reasonably infer the existence of the fact sought to be proved.’ ” Ex parte Trinity Indus., 680 So.2d at 269 (quoting West v. Founders Life Assurance Co. of Florida, 547 So.2d 870, 871 (Ala.1989), and citing § 12-21-12(d), Ala.Code 1975).

Discussion

The employer presents three issues on appeal: (1) whether the back-injury claim is barred by the statute of limitations; (2) whether the trial court’s findings with respect to whether the employer had notice of the December 2007 tractor accident are supported by substantial evidence; and (3) whether the back injury was a cumulative-physical-stress disorder compensable only upon proof by clear and convincing evidence that the disorder arose out of and in the course of the employee’s employment and, if so, whether such clear and convincing evidence was adduced.

I. Statute of Limitations

Section 25-5-80, Ala.Code 1975, provides, in pertinent part:

“[A]ll claims for compensation under this article shall be forever barred unless within two years after the accident the parties shall have agreed upon the compensation payable under this article or unless within two years after the accident one of the parties shall have filed a verified complaint as provided in Section 25-5-88.... Where, however, payments of compensation, as distinguished from medical or vocational payments, have been made in any case, the period of limitation shall not begin to run until the time of making the last payment. ...”

The employer contends that the employee’s back-injury claim is barred by the statutory limitations period set out in § 25-5-80 because, it says, the amended complaint alleging a back injury that resulted from the December 2007 tractor accident was filed on March 19, 2010, more than two years after that accident. The employer argues that the amendment does not relate back to the time of the filing of the original complaint because the amendment alleges an entirely different kind of injury from the injury alleged in the initial complaint. Citing Leslie v. Republic Steel Corp., 273 Ala. 586, 587-88, 143 So.2d 442, 443 (1962), as standing for the proposition that “[pjayment of compensation does not extend the statute of limitation for any injury unless payment is made or liability acknowledged for that injury,” the employer maintains that it paid disability benefits through June 2009 for the employee’s foot injury and for the neurostimulator complications arising therefrom, not for the employee’s back injury.

The trial court determined that the disk derangements in the employee’s lumbar spine resulted from a combination of the employee’s altered gait that had resulted from the employee’s favoring the foot that had been injured in 2006 and the trauma of a tractor jolt in 2007. The employee filed a timely complaint seeking compensation for the foot injury and, by implication, for “ ‘every natural consequence that flow[ed] from’ ” that injury. See Ex parte Pike Cnty. Comm’n, 740 So.2d 1080, 1084 (Ala.1999) (quoting 1 Arthur Larson & Lex K Larson, Larson’s Workers’ Compensation Law § 13.00 (1998)) (“When determining whether a successive injury is compensa-ble, the general rule is that ‘[wjhen the primary injury is shown to have arisen out of and in the course of employment, every natural consequence that flows from the injury likewise arises out of the employment, unless it is the result of an independent intervening cause attributable to [the] claimant’s own intentional conduct.’ ”). See also Sistrunk v. Sikorsky Support Servs., Inc., 961 So.2d 166 (Ala.Civ.App.2007) (reversing and remanding for a determination whether left-shoulder injury was a direct result of employee’s overcompensating with his left arm for his right-shoulder injuries); Landstar Ranger v. Kent, 828 So.2d 322 (Aa.Civ.App.2002) (concluding that injury to employee’s left shoulder, which injury had been sustained during physical therapy for injury to employee’s right shoulder, was a natural and direct result of injury to right shoulder).

The trial court’s finding that the employee’s altered gait had contributed to the development of the disk derangements in his lumbar spine was supported by substantial evidence, specifically the office notes and deposition testimony of Dr. Yearwood. Compare Wal-Mart Stores, Inc. v. Orr, 29 So.3d 210 (Ala.Civ.App.2009) (holding that employee did not present sufficient evidence indicating that her altered gait, which had resulted from a knee injury, had caused or contributed to the development of avascular necrosis in her hip).

The employee did not timely assert a claim specifically seeking compensation for a back injury resulting from the 2007 tractor accident. Nevertheless, because the 2006 foot injury was a contributing cause of the back injury, the back injury was compensable as a consequence of the foot injury.

“It is not necessary that the employment-related injury be the sole cause, or the dominant cause, of the [disability], so long as it was a contributing cause. See Ex parte Valdez, 636 So.2d 401 (Aa. 1994). If the employee suffers from a latent preexisting condition that inevitably will produce injury or death, but the employment acts on the preexisting condition to hasten the appearance of symptoms or accelerate its injurious consequences, the employment will be considered the medical cause of the resulting injury. See, e.g., Taylor v. Mobile Pulley & Mach. Works, Inc., 714 So.2d 300 (Ala.Civ.App.1997).”

Associated Grocers of the South, Inc. v. Goodwin, 965 So.2d 1102, 1110 (Ala.Civ.App.2007).

Dr. Yearwood testified by deposition that, “[h]ad [the employee] never had the tractor incident, the gait abnormality by itself ... may not have contributed to the extent that the rate of degenerative change would be the same.” It is immaterial, however, that the disk derangements in the employee’s lower back would have appeared much later absent the 2007 tractor accident. See Taylor v. Mobile Pulley & Mach. Works, 714 So.2d 300, 301 (Ala.Civ.App.1997) (upholding trial court’s finding that employee’s hip injury had “accelerated or triggered” a latent schizoaffec-tive disorder that rendered the employee permanently and totally disabled, notwithstanding psychiatric testimony that the schizoaffective disorder “would have surfaced eventually even if [the employee] had not suffered the on-the-job injury”).

We conclude that the employee’s back-injury claim was not barred by the statute of limitations.

II. Notice

In responding to discovery, the employee initially stated that the tractor accident had occurred in September or October 2007 and that he had not notified his supervisor, Paul Faggard, of that accident because, he said, Faggard had been on vacation at the time. At trial, the employer presented evidence indicating that Faggard had not been on vacation in September or October 2007. The employee testified that he had been mistaken about the date of the tractor accident and that he thought the tractor accident had actually occurred in December 2007. The employee claimed to have telephoned the office of MRM, the third-party administrator of the employer’s workers’ compensation carrier, and to have given the-details of the tractor accident to a woman who answered the telephone. According to the employee, that woman had stated that the insurer would “tack on” any injuries caused by the December 2007 tractor accident to the March 2006 foot-injury claim. The employee stated that he had later informed Faggard, both of the occurrence of the accident and of his having reported the accident to MRM. According to the employee, Faggard had asked him if he wanted to file a report at that time and the employee had said, “No, [the compensation carrier’s representative] said they were going to take care of it.”

Faggard was the facilities manager at both the Mobile Downtown Airport (also known as “Brookley Field”), and the Mobile Regional Airport (also known as “Bates Field”), where the employee worked. Faggard testified that he had divided his time between the two airports and that he had been “back and forth” between them each day during the relevant period. Faggard said that the employee had neither informed him of the tractor accident nor told him about having reported that accident to MRM. Paul Brown testified that, in late November 2007, he had received a promotion and had replaced Faggard as the employee’s supervisor at Bates Field but that the employee had not reported the tractor accident to him.

Matt Graham, general counsel for MRM, testified that the switchboard operator is the only person who answers the telephone at the MRM office, and, he said, the switchboard operator did not have the authority to decide or to state that MRM or the insurer would “tack on” any claim arising from the tractor accident to the foot-injury claim. Graham explained that MRM policy dictated that, if the employee had told the switchboard operator the details of the tractor accident, the switchboard operator should have referred the employee to an adjustor. Tina Hicks, the adjustor who was handling the employee’s foot-injury claim, did not testify.

Graham acknowledged that MRM would not have paid for any' medical treatment incident to the December 2007 tractor accident without having reviewed the authorized treating physician’s office notes pertinent to the injury that had allegedly resulted from that accident. Graham conceded that MRM had approved and precertified Dr. Yearwood’s surgical procedure to reimplant the neurostimulator device and to reposition the electrodes in the employee’s back. The following exchange then occurred:

“Q. [By counsel for the employee:] Okay. So, we can take it from that, then, that if [Dr. Yearwood’s bill for the surgery] was paid, then it was reviewed and [MRM] had accepted that as being related to the work accident?
“A. [By Graham:] If the adjustor did her job, she got a bill, got records and verified that it was related.”

In rebuttal, the employee presented the testimony of Ezekial Sanders, a former coworker, who stated that he had heard the employee complain about hurting his back when the tractor the employee had been operating had run over a hole. Sanders also said that he and another coworker had been present when the employee had reported the tractor accident to Faggard the day the accident occurred.

With respect to the notice issue, the trial court found:

“[The employee] reported [the tractor] incident to a representative at [MRM], the third-party administrator handling his workers-compensation claim. He was told that this [accident] would be addressed as a part of the existing claim [for the foot injury]. He likewise reported [the tractor] incident to his supervisor either that day, or within a day or two.”

“Actual knowledge sufficient to remove the written' notice requirement [of § 25-5-78, Ala.Code 1975,] is a question of fact to be determined by the trial court.” James v. Hornady Truck Line, Inc., 601 So.2d 1059, 1061 (Ala.Civ.App.1992). In weighing the testimony of the employee and Graham, and in considering the absence of any testimony by Tina Hicks, the adjustor who had handled the employee’s foot-injury claim, the trial court could reasonably have found that the employee had telephoned the office of MRM and had related some information to the switchboard operator who, in turn, had followed MRM policy and had referred the employee to an adjustor, to whom the employee had then reported the accident. “ ‘Knowledge on the part of a supervisory or representative agent of the employer that a work-related injury has occurred will generally be imputed to the employer. Beatrice Foods Co. v. Clemons, 54 Ala.App. 150, 306 So.2d 18 (Ala.Civ.App.1975).’” Goodyear Tire & Rubber Co. v. Long, 31 So.3d 715, 720 (Ala.Civ.App.2009) (quoting Davis v. Paragon Builders, 652 So.2d 762, 764 (Ala.Civ.App.1994)). Giving notice of an accident to a workers’ compensation administrator who, in turn, receives notice of the work-related nature of the accident from the operating surgeon is sufficient. See Champion Inti Corp. v. Williams, 686 So.2d 1204,1206 (Ala.Civ.App.1996).

In the present case, Dr. Year-wood’s office note of January 7, 2008, indicated that the electrodes on the neurosti-mulator device had been dislodged in a work-related tractor accident. Viewing the facts in the light most favorable to the findings of the trial court, we conclude that the trial court was authorized to find that, because MRM had approved and precerti-fied Dr. Yearwood’s surgery to reimplant the neurostimulator device and to reattach the electrodes in the employee’s back, the employer’s representative had had actual knowledge of a work-related tractor accident that had resulted in an injury.

The conflict in the testimony of Faggard and Sanders regarding whether the employee had notified a supervisor of the tractor accident “was a matter to be determined by the trial court, for it is that court that reviews the weight or preponderance of the evidence.” See Wal-Mart Stores v. Elliott, 650 So.2d 906, 909 (Ala.Civ.App.1994).

“When evidence is presented ore ten-us, it is the duty of the trial court, which had the opportunity to observe the witnesses and their demeanors, and not the appellate court, to make credibility determinations and to weigh the evidence presented. Blackman v. Gray Rider Truck Lines, Inc., 716 So.2d 698, 700 (Ala.Civ.App.1998). The role of the appellate court is not to reweigh the evidence but to affirm the judgment of the trial court if its findings are reasonably supported by the evidence and the correct legal conclusions have been drawn therefrom. Ex parte Trinity Indus., [Inc.,] 680 So.2d [262] at 268-69 [ (Ala.1996) ]; Fryfogle v. Springhill Mem’l Hosp., Inc., 742 So.2d 1255 (Ala.Civ.App.1998), aff'd, 742 So.2d 1258 (Ala.1999). The ‘appellate court must view the facts in -the light most favorable to the findings of the trial court.’ Ex parte Professional Bus. Owners Ass’n Workers’ Comp. Fund, 867 So.2d 1099, 1102 (Ala.2003).”

Ex parte Hayes, 70 So.3d 1211, 1215 (Ala.2011).

In the conclusions-of-law section of its judgment, the trial court stated:

“Although the evidence demonstrates that [the employee] did report the December 2007 incident to his supervisor, this was not actually required because the employer was already on notice of the initial job injury. See Ragland Brick Co. v. Campbell, 409 So.2d 443 (Ala.Civ.App.1982) (‘Once the employer has actual notice of an accident and injury, the statute does not require the claimant to provide further notice or continuing information except upon request. In light of Beatrice Foods [Co. v. Clemons, 54 Ala.App. 150, 306 So.2d 18 (Ala.Civ.App.1975) ], we are not convinced that it was absolutely necessary that the employer be informed of the back injury as long as there was a reasonable medical connection between the injury the employer was specifically informed of and the resulting injury.’).”

The trial court’s alternative holding— that no notice of the tractor accident was required because the employer was already on notice of the foot injury and there was a reasonable medical connection between the employee’s altered gait resulting from the foot injury and the employee’s disk derangements — is supported by Alabama law. In Beatrice Foods Co. v. Clemons, 54 Ala.App. 150, 306 So.2d 18 (Civ.App.1975), cited in the trial court’s judgment, Clemons, the worker, fell from the cab of his tractor-trailer truck and hurt his neck and shoulders. Beatrice Foods Company, his employer, acknowledged that Clemons had reported the accident, but it denied any knowledge that Clemons had been injured. Following the accident, Clemons worked with neck pain for nine months before he was diagnosed as suffering from a herniated cervical disk. The trial court resolved the factual dispute as to notice in favor of Clemons. Beatrice Foods appealed, arguing that there was no evidence to support the trial court’s finding that it had had actual knowledge that the accident had resulted in an injury. This court held:

“There was sufficient information brought to the knowledge of [Beatrice Foods] to place it on notice that an accident had occurred to [Clemons] and that a resultant injury of some degree had occurred or was likely to have occurred. [Clemons] imparted to [Beatrice Foods] all the knowledge which he possessed at the time, i.e., that he had fallen a substantial height from the cab of the tractor-trailer rig, landing on concrete with his weight of 280 pounds on his shoulders and neck, and that he was in pain. Once actual knowledge of an accident and injury is imparted to an employer, the opportunity for investigation of the accident and injury and to protect against simulated and exaggerated claims is presented.”

54 Ala.App. at 153-54, 306 So.2d at 20-21. This court followed Beatrice Foods in Ragland Brick Co. v. Campbell, 409 So.2d 443 (Ala.Civ.App.1982), a case also cited in the trial court’s judgment. In Ragland Brick, this court held that the evidence was sufficient to support the trial court’s finding that Campbell, the worker, had given oral notice of an accident resulting in injuries to his knee and back. In the alternative, this court determined that specific notice of the back injury was not required because there was a reasonable medical connection between the knee injury and the back injury. See also Metals USA Plates & Shapes Southeast, Inc. v. Conner, 78 So.3d 428, 434 (Ala.Civ.App.2011) (stating that the trial court had found that the worker’s “lower-back injury was the result of an altered gait, which was caused by [the worker’s] ankle injury” and holding that, because those findings “indicatefd] that there was a reasonable medical connection between [the worker’s] lower-back injury and his ankle injury, [the worker] was not required to specifically notify the employer of his lower-back injury”).

The trial court’s factual findings regarding the notice issue are supported by substantial evidence, and its legal conclusions are supported by Alabama law.

Cumulative-Physical-Stress Disorder

The employer contends that, if the employee was suffering from a lower-back injury, that injury was a cumulative-physical-stress disorder for which the employee was required to establish his claim by clear and convincing evidence and that the employee did not adduce sufficient evidence in support of his claim. The employer raised that issue in its answer to the amended complaint and again in its post-judgment motion. Section 25-5-81(c), Ala. Code 1975, provides:

“The decision of the court shall be based on a preponderance of the evidence as contained in the record of the hearing, except in cases involving injuries which have resulted from gradual deterioration or cumulative physical stress disorders, which shall be deemed compensable only upon a finding of clear and convincing proof that those injuries arose out of and in the course of the employee’s employment.”

“[T]he burden of proof the claimant must meet in a workers’ compensation action depends not upon the nature of the condition at issue, but upon the manner in which- that condition was purportedly caused.” Associated Grocers of the South, Inc. v. Goodwin, 965 So.2d at 1110 (citing V.I. Prewett & Son, Inc. v. Brown, 896 So.2d 564 (Ala.Civ.App.2004)).

The “condition at issue” in this case was the employee’s disk derange-ments. The trial court determined that the altered gait that had developed as a natural consequence of the employee’s 2006 foot injury was a contributing cause of the disk derangements. Dr. Richardson, Dr. Revels, and Dr. Park all acknowledged that, by its very nature, an altered gait can contribute to the acceleration of a preexisting condition in the lower back only through the mechanism of repetitive walking that places cumulative physical stress on the lumbar spine. Thus, to the extent that the employee’s back-injury claim was based on his altered gait, that claim was subject to the clear-and-convincing-evidence standard. See Wal-Mart Stores v. Orr, supra; Sistrunk, supra. In Harris v. Russell Petroleum Corp., 55 So.3d 1225 (Ala.Civ.App.2010), this court explained:

“If the worker asserts that the original compensable injury caused the worker to gradually acquire a successive injury due to cumulative trauma, then the clear-and-convincing-evidence standard applies to that claim. See Wal-Mart Stores, Inc. v. Kennedy, 799 So.2d 188 (Ala.Civ.App.2001) (holding that the clear-and-convincing-evidence standard applied to the claim of an injured worker who asserted that she had acquired carpal tunnel syndrome from repetitively using a cane and walker while convalescing from work-related hip injuries); and Sistrunk v. Sikorsky Support Servs., Inc., 961 So.2d 166 (Ala.Civ.App.2007) (applying clear-and-convincing-evidence standard to claim that worker injured left shoulder due to overuse following work-related right-shoulder injury).. On the other hand, if the worker alleges that the original compensable injury caused the worker to suffer a later sudden, traumatic injury, it follows that the clear-and-convincing-evidence standard would not apply to that claim.”

55 So.3d at 1229.

Section 25-5-81(c) defines “clear and convincing” evidence as

“evidence that, when weighted against evidence in opposition, will produce in the mind of the trier of fact a firm conviction as to each essential element of the claim and a high probability as to the correctness of the conclusion. Proof by clear and convincing evidence requires a level of proof greater than a preponderance of the evidence or the substantial weight of the evidence, but less than beyond a reasonable doubt.”

The employer does not contest legal causation with respect to the foot injury. It did contest at trial, however, whether the evidence was sufficient to show that the employee had developed an altered gait as a consequence of the foot injury. That evidence was in conflict.

In deposition testimony, Dr. Guy L. Rutledge, Dr. Park’s partner, stated that the employee did not have an altered gait in July 2007 when Dr. Rutledge last saw him. Dimmick, the exercise physiologist who conducted the FCE in September 2008, testified that the employee’s gait was “normal” during the FCE. In deposition testimony taken on May 26, 2010, Dr. Year-wood stated that he had usually seen the employee only when the employee was seated on an injection table and, thus, he could not say whether the employee walked with a limp. Nor could he recall, “off the top of his head,” whether the employee had reported an altered gait. Dr. Yearwood’s office note of June 17, 2009, however, states that the “patient has developed significant low back pain believed to be a result of compensatory gait changes related to his work-related leg injury.”

The employee testified that he had begun to favor his injured foot soon after returning to work in January 2007. He explained that, as the pain in his foot had increased, he had begun to limp and that his limping had become more pronounced as the day progressed. Faggard, the employee’s supervisor, acknowledged that the employee had “walked slower” after the foot injury. Dr. Park testified by deposition that, while he was treating the employee, he had noticed that the employee walked with a limp. In the month preceding his return to work in January 2007, the employee had participated in 30 work-hardening sessions at the direction of Dr. Park. The report of the employee’s progress during those sessions that was sent to Dr. Park noted that the employee walked with a “light to moderate limp.”

In the findings-of-fact section of its judgment, the trial court observed that the employee “moves at a very slow pace, takes smaller than normal steps, and has a very pronounced limp.”

“[I]n the context of workers’ compensation claims that the Act requires to be proven by clear and convincing evidence, appellate courts are not permitted to reweigh the evidence presented to the trial court by, for instance, estimating the credibility of witnesses.... The appellate court must review the evidence and the trial court’s judgment solely to answer the question whether ‘ “the fact-finder reasonably could have determined that the fact was proven by clear and convincing evidence.” ’ ”

DeShazo Crane Co. v. Harris, 57 So.3d 105, 108-09 (Ala.Civ.App.2009) (quoting Ex parte McInish, 47 So.3d 767, 774 (Ala.2008), quoting in turn KGS Steel, Inc. v. McInish, 47 So.3d 749, 759 (Ala.Civ.App.2006) (Murdock, J., concurring in the result)). We conclude that the trial court could have resolved the conflict in the evidence by determining that the witnesses who stated that the employee had not walked with a limp either saw the employee only when he was seated or early in the day before the pain he was experiencing had increased enough to produce a visible alteration in his gait. In other words, the trial court was presented with evidence that, the trial court could reasonably have determined, clearly and convincingly established the fact that the employee had developed an altered gait as a consequence of his foot injury.

With respect to medical causation, there was no conflict in the evidence. Dr. Richardson, Dr. Revels, and Dr. Park all acknowledged that an altered gait can cause lower-back problems or can aggravate and accelerate preexisting biomechanical problems in the lumbar spine. The trial court’s medical-causation finding — which adopted Dr. Richardson’s conclusion that the altered gait that had developed as a natural consequence of the employee’s 2006 foot injury was a contributing cause of the disk derangements — was, therefore, based upon evidence that would “produce in the mind [of the trial court] a firm conviction as to each element of the claim and a high probability as to the correctness of the conclusion.” § 25-5-81 (c).

For the reasons set out above, the judgment of the Mobile Circuit Court is affirmed.

AFFIRMED.

THOMPSON, P.J., and BRYAN, THOMAS, and MOORE, JJ., concur.

      . Dr. Park's deposition testimony indicated that, although RSD/CRPS is not completely understood, it is essentially a post-traumatic condition in which the autonomic nervous system magnifies the pain beyond what would normally be expected for the type of injury involved. Treatment consists of an attempt to block the sympathetic chain in the spinal cord to prevent the pain signals from reaching the brain.

      . The employee explained that 20 years earlier, while working for a different employer, he had fallen and hurt his back and that he had previously been diagnosed with degenerative-disk disease.

      . Dysesthesia is a hypersensitivity to touch, caused by abnormalities in the central nervous system.


author: PER CURIAM.

text:
    Che Dechaune MARKS v. STATE of Alabama.
    CR-10-0819.
    Court of Criminal Appeals of Alabama.
    Feb. 10, 2012.
    Rehearing Denied April 20, 2012.
    Glenn L. Davidson, Mobile, for appellant.
    Luther Strange, atty. gen., and Yvonne A.H. Saxon, asst. atty. gen., for appellee.
   PER CURIAM.

The appellant, Che Dechaune Marks, was convicted of rape in the first degree, a violation of § 13A-6-61, Ala.Code 1975, and was sentenced as a habitual felon to life imprisonment without the possibility of parole.

In May 2009, I.C., who was then 15 years old, dialed a wrong number on her cellular phone and hung up. The number she dialed belonged to Marks. Marks called the number back, identified himself as Chevy and said that he wanted to come to I.C.’s apartment. I.C. said that she knew someone by the name of Chevy and she told Marks how to get to her apartment.

Marks went to I.C.’s apartment, and he met her in the parking lot. They talked for several minutes, she said, and then Marks drew a pistol on I.C. and forced her into a nearby abandoned apartment. I.C. testified that Marks raped her and threatened to kill her and her family if she told anyone about the rape. She said he told her that he now considered her his “old lady,” to go home, and to call him when she got there.

The next morning I.C. went to the Mobile Police Department to report the rape. Corp. Michael Shavers of the Mobile Police Department instructed I.C. to record conversations between herself and Marks. In one conversation, Marks indicated that he knew that I.C. was not pregnant because he was wearing a condom when they had had sex. He also said in one of their conversations that he thought they had gotten past what had happened and why did she keep bringing it up.

Police went to the abandoned apartment 1.C. identified as the scene of the rape and discovered a used condom. Testing revealed Marks’s DNA and a secondary DNA profile. I.C. could not be excluded as the source of the secondary DNA.

Marks testified in his own defense. He said that he knew I.C., that on the night of the alleged rape he was drinking and taking drugs, and that he did not have sex with I.C.

The jury convicted Marks of rape in the first degree. After a sentencing hearing, the court sentenced Marks under the Habitual Felony Offender Act to life imprisonment without the possibility of parole. This appeal followed.

Marks first argues that the circuit court erred in allowing evidence of collateral bad acts in violation of Rule 404(b), Ala. R. Evid. In its Rule 404(b), Ala. R. Evid., motion the State asserted that it sought to introduce evidence in the form of testimony from T.F. and S.S. that Marks had had encounters with them in May 2009. It asserted that their testimony was admissible to show Marks’s motive, opportunity, plan, knowledge, and identity for the charged rape. Specifically, the State argued that their testimony was admissible because:

“1) The instant rape is alleged to have occurred on May 15, 2009. [S.S.] alleges to have been raped during the first week of May 2009 and [T.F.] alleges to have been raped May 9, 2009.
“2) All 3 offenses took place in close physical proximity to one another.
“3) All 3 offenses took place between 11:00 p.m. and 4:00 a.m.
“4) A gun was seen or alluded to in all 3 cases.
“5) All 3 individuals identified their assailant as a black male known to them as ‘Chevy’ and who they subsequently each identified as this defendant.
“6) In each case, the assailant allegedly made initial penetration from behind the victim, into her vagina and then in 2 instances proceeded to make anal entry, also from behind the victim.
“7) In each offense, the defendant allegedly threatened to kill the victim and her family, specifically, younger children, if the victim reported the crime.
“8) In each instance, the defendant allegedly made subsequent text contact with the victim, alleging that the victim was now his girlfriend and was not allowed to see any other men.”

(C.R. 31.) The circuit court allowed the testimony because, it said, the testimony was admissible to show “motive, opportunity, plan, knowledge, and identity.” (R. 350.) Marks asserts, however, that motive, opportunity, plan, knowledge, and identity were not at issue at his trial; he argues, therefore, that the collateral-act evidence should have been excluded.

Marks also argues in the alternative that, if the collateral-act evidence was admissible for one or more of the purposes in Rule 404(b), the circuit court nonetheless erred in its instruction on the use of the evidence. He asserts that the instruction was erroneous because, he says, it allowed the jury to consider the evidence for purposes that were clearly not in dispute in his case. He contends that the instruction was in conflict with the Supreme Court’s holding in Ex parte Billups, 86 So.3d 1079 (Ala.2010). We agree.

In this case, the circuit court gave the following instruction:

“Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show that he acted in accord with his character. However, such evidence may be admissible for other purposes recognized by the Rules of Evidence in Alabama law.
“Some evidence has been allowed in this case, specifically, the testimony of [T.F.] and [S.S.] regarding allegations of sexual acts directed towards them by the defendant, Marks. The Court received this evidence, and you should consider that evidence only for the limited purpose of establishing motive, opportunity, plan, knowledge, or modus operan-di and should be considered by you with all the other evidence, but only for the purpose for which it was received.”

(R. 556.)

At the conclusion of the court’s instructions, defense counsel made the following objection:

“[A]s to the [Rule] 404(b) charge that the Court gave, that charge is insufficient and incorrect as a matter of law. It is directly in opposition to the law that has been set out by the Supreme Court of Alabama, by the Court of Appeals of Alabama, and by the federal courts to which [Rulé] 404(b) is identically copied.
“I previously cited a case, United States v. Biswell, and its 700 F.2d 1310 that’s coming out of the 10th Circuit. I cited the case of Billups v. State of Alabama, a Supreme Court opinion....
“... And I incorporate all my previous arguments that I have made regarding [Rule] 404(b) for the Court’s consideration. ...”

(R. 558-60.)

In Ex parte Billups, the Alabama Supreme Court held that in admitting Rule 404(b), Ala. R. Evid., evidence the court must instruct the jury on the specific pur pose or purposes for which the Rule 404(b) evidence was admitted and not merely instruct the jury with a “laundry list” of all the theoretical permissible uses of Rule 404(b) evidence. The court stated:

“In Huddleston v. United States, 485 U.S. 681, 108 S.Ct. 1496, 99 L.Ed.2d 771 (1988), the United States Supreme Court stated that, when evidence of a defendant’s other crimes, wrongs, or acts is introduced under Rule 404(b), Fed.R.Evid., ‘the trial court shall, upon request, instruct the jury that the similar acts evidence is to be considered only for the proper purpose for which it was admitted.’ 485 U.S. at 691-92, 108 S.Ct. 1496 (citing United States v. Ingraham, 832 F.2d 229, 235 (1st Cir.1987) (emphasis added)). The State appears to contend that the trial court satisfies its duty to instruct the jury as to the ‘proper purpose’ for which evidence regarding a defendant’s other crimes, wrongs, or acts has been introduced by simply reciting all the Rule 404(b) exceptions for which the evidence may be admitted and informing the jury that it may not consider that evidence as proof of the defendant’s bad character. See State’s brief, pp. 25-2 6. We disagree.
“Assuming, without deciding, that the evidence regarding Billups’s involvement in the Avanti East killings was, as the State contends, relevant to show plan, identity, motive, and intent, the jury, pursuant to the trial court’s broad instruction, nonetheless remained free to consider that evidence for numerous other purposes (including opportunity, preparation, knowledge, or absence of mistake or accident) that were indisputably not at issue in this case. See McAdory v. State, 895 So.2d 1029, 1036 (Ala.Crim.App.2004) (plurality Qpinion) (concluding that the jury could not have properly considered the defendant’s pri- or convictions to show knowledge and intent because neither was at issue). Presenting the jury with such a far-reaching ‘limiting’ instruction carries with it the same problems as providing the jury with no specific purpose for considering the other crimes, wrongs, or acts evidence.
“ ‘[A]n instruction should advise the jury on the purposes for which prior acts are admitted, meaning uses that are plausible in the case at hand, and should not include a laundry list of every conceivable use.’ 1 Christopher B. Mueller and Laird C. Kirkpatrick, Federal Evidence § 4:30 at 789 (3d ed.2007) (emphasis added). In this case, however, the jury was allowed to consider the evidence regarding Billups’s involvement in the Avanti East killings for several implausible purposes, including, among others, opportunity and absence of mistake or accident. For example, Billups made no argument at trial that Lockett’s killing was the result of an accident or that he lacked the opportunity to kill Lockett; rather, Billups’s defense was that another person, Charles Cooper, was responsible for Lockett’s murder.
“By simply reciting the complete ‘laundry list’ of permissible theories under Rule 404(b), the trial court’s instruction in this case gave the jury inadequate guidance. See Ex parte Belisle, 11 So.3d 323, 333 (Ala.2008) (‘[A]n appellate court “presume[s] that the jury follows the trial court’s instructions unless there is evidence to the contrary.”’ (quoting Cochran v. Ward, 935 So.2d 1169, 1176 (Ala.2006))). The trial court’s instruction also failed to limit the State to the purposes — as nonspecific as they were — that it advanced in support of admission of the evidence regarding Bill-ups’s involvement in the Avanti East killings. Thus, we conclude that the trial court erred by failing to limit the jury’s consideration of that evidence to only those purposes for which the- evidence was purportedly offered by the State (plan, identity, motive, and intent). See Huddleston, supra; cf. United States v. Tse, 375 F.3d 148, 158 (1st Cir.2004) (finding that the district court ‘adequately limited the jury’s consideration of [certain Rule 404(b) ] evidence’ when the court instructed the jury that it could not use that evidence ‘to make a propensity inference’ and that the jury could use that evidence to determine only the defendant’s ‘knowledge and intent’).”

86 So.3d at 1085-86.

The Supreme Court in Billups cited with approval the jury instructions given in United States v. Tse, 375 F.3d 148 (1st Cir.2004). In Tse, the United States Court of Appeals for the First Circuit stated:

“Upon request by the defendant, a district court must instruct the jury on the permissible use of other bad act evidence admitted against the defendant. Fed.R.Evid. 105; Huddleston v. United States, 485 U.S. 681, 691-92, 108 S.Ct. 1496, 99 L.Ed.2d 771 (1988) (‘[T]he trial court shall, upon request, instruct the jury that the similar acts evidence is to be considered only for the proper purpose for which it was admitted.’). The First Circuit pattern jury instructions explicitly state (1) that the bad act evidence cannot be used to infer guilt based on the defendant’s character and (2) that the other act evidence may be used only for specific enumerated purposes.”

375 F.3d at 157.

The circuit court’s instructions in this case permitted the jury to consider the collateral-act evidence for the purposes of showing motive, opportunity, plan, knowledge, and modus operandi. On appeal, the State argues that opportunity and plan were at issue and that, therefore, the circuit court properly instructed the jury as to those purposes. The State also argues that the evidence was admissible to prove identity and preparation — purposes for which the jury was not instructed regarding. the collateral-act evidence. The State does not address the additional purposes— motive, knowledge, or modus operandi — on which the jury was instructed it could consider the collateral-act evidence in this case.

Although not as broad as the instructions at issue in Ex parte Billups, the instruction in this case regarding the permissible use of the collateral-act evidence was too general and authorized the jury to consider the evidence for “implausible purposes,” such as identity. For example, I.C. identified Marks, and Marks admitted that he knew I.C.; he denied, however, that he had had sex with I.C. or that he had raped her. Thus, I.C.’s and Marks’s credibility, not Marks’s identity, were at issue. Compare Gibson v. State, 677 So.2d 238, 240 (Ala.Crim.App.1995) (identity was at issue where the accused contended that someone else committed the sexual offenses with which he was charged), with Mothershed v. State, 596 So.2d 47 (Ala.Crim.App.1991) (evidence of collateral sexual acts of the accused against the alleged victims was inadmissible to prove identity where the accused denied committing the offenses with which he was charged and he did not allege that the crimes were committed by someone else). Thus, the circuit court’s instructions were erroneous because they permitted the jury, over Marks’s objection, to consider the collateral-act evidence for purposes not at issue in the case. Given the graphic nature of the collateral-act evidence at issue here, the “confusion of the jury and the probable prejudice to [Marks,]” as a result of the erroneous instruction “is obvious.” Ex parte Billups, 86 So.3d at 1086 (quoting Billups v. State, 86 So.3d 1032, 1079 (Ala.Crim.App.2009) (Welch, J., dissenting)). Thus, in accordance with the Supreme Court’s decision in Billups, the jury instructions in this case constituted reversible error.

For the above-stated reasons, Marks’s conviction for rape in the first degree is hereby reversed and this case is remanded to the Mobile Circuit Court for proceedings consistent with this opinion.

REVERSED AND REMANDED.

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

WINDOM, P.J., dissents.

      . To protect the anonymity of the victim we are using her initials. See Rule 52, Ala. R.App. P.

      . Rule 404(b), Ala. R. Evid., provides:
      "Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show action in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident, provided that upon request by the accused, the prosecution in a criminal case shall provide reasonable notice in advance of trial, or during trial if the court excuses pretrial notice on good cause shown, of the general nature of any such evidence it intends to introduce at trial.”

      . In light of our holding that the jury instruction was reversible error, we pretermit as unnecessary consideration of whether the collateral-act evidence was admissible for any permissible purpose under Rule 404(b), Ala. R. Evid. See Ex parte Billups, 86 So.3d at 1086.


text:
    Ex parte State of Alabama. (In re STATE of Alabama v. Branden Wayne UTLEY).
    CR-11-0244.
    Court of Criminal Appeals of Alabama.
    April 27, 2012.

      Douglas Albert Valeska, dist. atty., and Anderson D. Robinson, asst. dist. atty., Dothan, for petitioner.
    Cada M. Carter, Dothan, for respondent.
   PER CURIAM.

The State of Alabama filed this petition for a writ of mandamus requesting that we direct Judge Brady E. Mendheim to vacate his order granting Branden Wayne Utley’s third request for probation. In May 2011, Utley pleaded guilty to enticing a child and two counts of transmitting obscene material to a child. He was sentenced on July 5, 2011, to concurrent terms of three years’ imprisonment for each count. Probation was denied at that time. On July 22, 2011, Utley filed written notice of appeal. On August 4, 2011, Utley moved for an appeal bond and moved that the court reconsider probation. The court granted an appeal bond, and Utley was released. On August 19, 2011, the circuit court denied Utley’s second request for probation.

On September 29, 2011, this Court dismissed Utley’s appeal on motion of the appellant. See Utley v. State (CR-10-1627, September 29, 2011), — So.3d — (Ala.Crim.App.2011) (table). Utley then filed his third request for probation in the circuit court. On November 4, 2011, Judge Mendheim granted Utley’s request for probation. The State then filed this timely petition for a writ of mandamus.

The State asserts that Judge Men-dheim’s ruling granting probation is void because, it argues, he did not have jurisdiction to issue the order more than 30 days after the sentence had been pronounced and after Utley had started serving his sentence.

The Alabama Supreme Court has held that “[m]andamus will lie to direct a trial court to vacate a void judgment or order.” Ex parte Sealy, L.L.C., 904 So.2d 1230 (Ala.2004). “[A] writ of mandamus is the appropriate remedy by which to order a vacatur of the circuit court’s void order.” Ex parte Scrushy, 940 So.2d 290, 294 (Ala.2006). “[T]here is no limit on the time to begin a proceeding to set aside a void judgment.” Ex parte Full Circle Distri- button, L.L.C., 883 So.2d 638 (Ala.2003). A void judgment has no legal effect on the underlying proceedings and is not appeal-able. Ex parte Chandler, 910 So.2d 763 (Ala.2005). ‘“[A] void court order is a complete nullity.’ Hodges v. Archer, 286 Ala. 457, 459, 241 So.2d 324, 326 (1970). As a nullity, a void judgment has no effect and is subject to attack at any time.” Ex parte Full Circle Distribution, L.L.C., 883 So.2d at 643. See also Ex parte State Dep’t of Human Res., 47 So.3d 823 (Ala.Civ.App.2010). According to State v. Webber, 892 So.2d 869 (Ala.2004), the filing of a petition does not stay the case and the petitioner should move to stay the underlying proceedings when seeking a writ of mandamus in a higher court. The Webber court stated:

“[AJfter the thirty days of retained jurisdiction in the trial court expired ... the trial court lost all jurisdiction and all possibility of reacquiring jurisdiction to vacate the judgment ... and the appellate courts lost all possibility of acquiring appellate jurisdiction to remand the case for the judgment to be vacated.”

892 So.2d at 871. However, neither the circuit court nor this Court can stay a void judgment. Because we hold that Judge Mendheim’s actions were void, the State’s failure to move to stay the underlying proceedings does not deprive this Court of jurisdiction to entertain this petition. “[The] order of [the] trial court is void because that court lacked jurisdiction to issue that order, and the filing of a motion to stay is unnecessary.” Ex parte Tiongson, 765 So.2d 643, 643 (Ala.2000).

Typically, a circuit court retains jurisdiction to modify a sentence for 30 days after the sentence is pronounced. See State v. Monette, 887 So.2d 314 (Ala.Crim.App.2004). However, probation may be granted at any time before “execution of the sentence.” As the Alabama Supreme Court stated in State v. Green, 436 So.2d 803 (Ala.1983):

“Historically, neither the courts nor the legislature had the authority to suspend sentences and grant probation. Montgomery v. State, 231 Ala. 1, 163 So. 365 (1935). In this state, Amendment 38 of the Constitution of 1901 empowered the legislature to ‘authorize the courts having criminal jurisdiction to suspend sentence and to order probation.’ Thus the power to exercise probationary authority requires legislative sanction. That sanction presently is found in Code of Alabama 1975, § 15-22-50, which, after granting the authority, states further:
“ ‘[T]he court, after a plea of guilty, after the returning of a verdict of guilty by the jury or after the entry of a judgment of guilty by the court, may suspend execution of sentence and place the defendant on probation, or may impose a fine within the limits fixed by law and also place the defendant on probation.’ (Emphasis added.)
“At first glance the language of this statute might suggest that the probationary power of the circuit court is limited to a period of time following proceedings in the trial court. Neither that view nor any other, short of considering the time when execution of the sentence has actually commenced, has heretofore been adopted by this Court. Indeed the predecessor statute to § 15-22-50, then Title 42, § 19, Alabama Code of 1940, with no material difference in language, was construed by this Court in Ex Parte Smith, 252 Ala. 415, 418, 41 So.2d 570 (1949):
“ ‘It will be observed that the power to suspend the execution of sentence and to place the convicted person on probation is not expressly limited to the time of imposition of sentence or to any period of time thereafter. On the contrary, it seems clear that it was the intention of the legislature enacting this remedial and humanitarian legislation that the power to suspend the execution of a sentence should continue until its execution has actually commenced.
“‘The circuit court is not deprived of the power so conferred merely because the petition for probation is not filed within thirty days from the date on which the judgment of conviction was rendered. § 119, Title 13, Code 1940, has no application to petitions for probation. Nor does the failure of a person who has been convicted and sentenced and who is out on bail pending appeal to surrender himself within fifteen days after the affir-mance of the judgment of conviction deprive the circuit court of jurisdiction to entertain a petition for probation filed prior to the time the execution of the sentence is actually begun.’
“This position accords with that of the federal courts. 3 Wright, Federal Practice and Procedure, § 529 at 144, n. 14. We believe that Ex Parte Smith, supra, states the correct interpretation of legislative intent on the subject.
“It has been shown that the Circuit Court of Montgomery County considered probation anew on the petition for reconsideration, and before the execution of the sentence. Thus that court was within its authority under § 15-22-50.”

436 So.2d at 805-06.

We have stated the following concerning the execution of sentence: “In Ex parte Smith, 252 Ala. 415, 41 So.2d 570 [ (1949) ] it was brought out that this power to suspend sentence is a continuing one until the execution of a sentence actually begins, i.e., up to the very moment of delivery of a convict by the sheriff to the penitentiary agent.” Ex parte Robinson, 44 Ala.App. 469, 470, 213 So.2d 409, 410 (1968) (emphasis added). “A trial court’s authority to suspend sentence and place a person on probation terminates when that person has actually entered on service of his sentence.” Dailey v. State, 402 So.2d 1117, 1118 (Ala.Crim.App.1981) (emphasis added). “Once an application for probation is made, the defendant will not enter into service of his sentence until the application is denied.” Canada v. State, 429 So.2d 1127, 1129 (Ala.Crim.App.1982) (emphasis added). “ ‘The time for the election to have the execution of sentence suspended is at the time of sentence and not afterward....’” Ex parte Downer, 44 Ala.App. 77, 77, 203 So.2d 132, 132 (1967), quoting Ex parte State ex rel. Coburn, 20 Ala.App. 595, 104 So. 346 (1925).

Here, the documents filed with the State’s mandamus petition show that Utley commenced serving his sentence on July 5, 2011, the day Judge Mendheim pronounced sentence and the day he denied Utley’s first request for probation. Utley did not file a notice of appeal or a request for an appeal bond until several weeks later. Nor did Utley move to stay the execution of his sentence.

To satisfy the prerequisites for the issuance of a writ of mandamus, the petitioner must establish: (1) a clear legal right to the relief sought; (2) an imperative duty upon the respondent to perform, accompanied by a refusal to do so; (8) no adequate remedy at law; and (4) the properly invoked jurisdiction of the reviewing court. See State v. Williams, 679 So.2d 275 (Ala.Crim.App.1996).

The State has satisfied that burden— Judge Mendheim’s ruling granting Utley probation was void because the ruling was entered after Utley began serving his sentence. According to long-established law, this petition for a writ of mandamus is due to be granted. See State v. Green, supra; Canada v. State, supra; Dailey v. State, supra; and Ex parte Robinson, supra. Therefore, Judge Mendheim is directed to set aside his November 4, 2011, order granting Utley’s third request for probation.

PETITION GRANTED; WRIT ISSUED.

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

      . This petition was not filed until November 14, 2011. However, the 7th day fell on Veteran’s Day, a State holiday; thus, pursuant to Rule 26(a), Ala. R.App. P., the deadline was extended to the next business day, November 14, 2011, and this petition was timely filed. Ex parte Sharp, 893 So.2d 571 (Ala.2003).

      . Utley did file a postjudgment motion on August 4, 2011; however, the motion was denied on August 19, 2011.

      . It appears from the documents filed with this Court that Utley was incarcerated at that time.

      . Rule 7.2(c)(2), Ala. R.Crim. P., specifically provides that an appeal bond may be granted:
      "(i) Upon application for release made concurrently with the filing of a notice of appeal, or
      “(ii) If the application for probation is made, upon application for release made at any time before probation has been granted or denied.”
      Here, the motion for an appeal bond was not made until after Utley was denied probation.
      Nor was the motion for an appeal bond made concurrently with the filing of the notice of appeal.


author: KELLUM, Judge.

text:
    William C. HAMMOND v. STATE of Alabama.
    CR-10-1263.
    Court of Criminal Appeals of Alabama.
    April 27, 2012.

      Roy 0. McCord, Gadsden, for appellant. Luther Strange, atty. gen., and James B. Prude, asst. atty. gen., for appellee.
   KELLUM, Judge.

The appellant, William C. Hammond, was convicted of rape in the first degree, see § 13A-6-61, Ala.Code 1975; rape in the second degree, see § 13A-6-62, Ala. Code 1975; sodomy in the second degree, see § 13A-6-64; sexual abuse in the first degree, see § 13A-6-66, Ala.Code 1975; and sexual abuse in the second degree, see § 13A-6-67, Ala.Code 1975. The circuit court sentenced Hammond to 40 years’ imprisonment on the first-degree rape conviction, 20 years’ imprisonment on the second-degree rape conviction, 20 years’ imprisonment on the second-degree sodomy conviction, 10 years’ imprisonment on the first-degree sexual-abuse conviction, and 1 year’s imprisonment for the second-degree sexual-abuse conviction. The circuit court ordered that the sentences were to run concurrently. The court further ordered Hammond to pay $10,000 to the Crime Victims Compensation Fund and $680 in restitution. This appeal followed.

Hammond raises three issues on appeal: (1) whether the circuit court erred in allowing the State to open the door on cross-examination to rebuttal evidence regarding Hammond’s character when Hammond did not place his character at issue during direct examination; (2) whether the circuit court erred in not granting Hammond’s motion for a new trial based on newly discovered evidence when the evidence was reliable evidence that met each of the prongs of the requisite test; and (3) whether the circuit court erred in not allowing him to offer into evidence records prepared by the Department of Human Resources when the records were proper business records not made in anticipation of litigation and when the records went to the victim’s credibility. Hammond does not challenge the sufficiency of the evidence on appeal. Therefore, a detailed recitation of the facts is unnecessary in this case.

The dispositive issue raised by Hammond on appeal is whether the circuit court erred when it allowed the State to open the door for rebuttal evidence during its cross-examination of Hammond. At trial, after resting its case, the State asked the following of Hammond on cross-examination: “All right. You have told the jury that the things that K.G. has talked about, that you just didn’t do these things; is that right? ... You wouldn’t do that kind of thing, would you?” (R. 406.) During a bench conference, Hammond objected to this line of questioning based on the grounds that the question concerned irrelevant matters and because the question “opened a wide door” to the admission of allegedly other improper matters. The State advised the circuit court that new evidence had come to light since it had rested its case; namely, that a cousin of Hammond’s had come forward with her own accusation that Hammond had raped her when she was 18 years old. The State argued that it had a broad right to cross-examine and rebut anything stated by Hammond on the witness stand and that this broad right allowed the State to present this evidence without reopening its case-in-chief. Hammond argued that the State could not create its own rebuttal and that if the State wanted to present new evidence, rebuttal was not the proper time to do so.

The circuit court overruled Hammond’s objection. The circuit court’s ruling resulted in the following exchange during the State’s cross-examination of Hammond:

“[The State]: Before the break, Mr. Hammond, you were telling the jury how you didn’t do any of these things that K.G. had alleged that you did; is that correct?
“[Hammond]: Yes, ma’am.
“[The State]: Isn’t it true that not only did you rape K.G. when she was fifteen years old, but you also raped your cousin, [K.X.], when she was thirteen years of age back when you were home visiting from the boot camp?
“[Hammond]: No, ma’am.
“[The State]: Never happened?
“[Hammond]: Huh-uh (indicating no).”

(R. 439.) After Hammond’s testimony, the defense rested its case. The State then called Hammond’s cousin, K.X., as a rebuttal witness. At this point, Hammond renewed his objection, stating that “any rebuttal at this point in time, either this witness or anybody else ... the State opened the door; we didn’t open the door.” (R. 459-60.) The circuit court overruled the objection, and K.X. testified that Hammond had forced her to engage in sexual intercourse with him when she was 13 years old. The jury subsequently convicted Hammond of the aforementioned crimes.

The admission or exclusion of evidence is a matter within the sound discretion of the trial court. Taylor v. State, 808 So.2d 1148, 1191 (Ala.Crim.App.2000), aff'd, 808 So.2d 1215 (Ala.2001). “The question of admissibility of evidence is generally left to the discretion of the trial court, and the trial court’s determination on that question will not be reversed except upon a clear showing of abuse of discretion.” Ex Parte Loggins, 771 So.2d 1093, 1103 (Ala.2000). This is equally true with regard to the admission of collateral-acts evidence used for rebuttal. See Davis v. State, 740 So.2d 1115, 1130 (Ala.Crim.App.1998).

The Alabama Supreme Court recently addressed the issue of the State’s creating its own rebuttal through questions on cross-examination in Ex parte Ray, 52 So.3d 555 (Ala.2009). In Ex parte Ray, the defendant was charged with first-degree sexual abuse arising out of an offense involving a child. Before the trial began, Ray filed a motion in limine to prevent the prosecution from referring to a juvenile adjudication that had resulted in Ray’s undergoing sex-offender treatment after he had made sexual contact with his eight-year-old niece; the circuit court granted this motion. 52 So.3d at 557. During the trial, Ray testified on his own behalf, and the prosecution asked Ray if he “just wouldn’t do something like that,” referring to having sexual contact with children. Ray responded, “No. No.” Ray, 52 So.3d at 557. The circuit court found that by saying “no” to the prosecutor’s question, Ray had opened the door to rebuttal evidence, despite its earlier ruling on Ray’s motion in limine. Ray, 52 So.3d at 557-58.

The State then questioned Ray about his prior juvenile sexual convictions and during rebuttal elicited testimony from an investigating detective regarding conversations the detective had had with Ray regarding Ray’s sexual contact with his niece and Ray’s sex-offender treatment. 52 So.3d at 558. The jury subsequently convicted Ray of first-degree sexual abuse. This Court affirmed Ray’s conviction and sentence on appeal. See Ray v. State, 52 So.3d 547 (Ala.Crim.App.2007). Ray then petitioned the Alabama Supreme Court for a writ of certiorari.

The Alabama Supreme Court granted Ray’s petition and reversed this Court’s judgment, holding that Ray had not opened the door to the State’s evidence. The Supreme Court noted that “the State fails to explain how Ray’s answers could constitute ‘opening the door’ when they were direct responses to questions asked by the prosecutor on cross-examination.” Ex parte Ray, 52 So.3d at 561. The Court determined that a defendant does not put his character at issue “merely by responding to the prosecutor’s cross-examination designed to elicit testimony on that subject.” Ex parte Ray, 52 So.3d at 560-62. The Court adopted language from an earlier decision, Ex parte Woodall, 730 So.2d 652 (Ala.1998), in which that Court stated:

“ ‘ “[T]he defendant did not voluntarily place his character in issue. He merely responded to questions which placed his character in issue.... This line of cross-examination was obviously an endeavor to compel defendant to respond to questions which placed his character in issue and which insured an excuse for the State’s introduction of evidence of defendant’s prior criminal record. We disapprove of this endeavor and adhere to the rule that the State cannot rebut or question the presumption of a defendant’s good character unless the defendant first chooses to place his character in issue- [Sjince defendant did not voluntarily elect to place his character in issue, the trial court erred in allowing the State to attempt to impeach defendant and place his character in issue through the introduction of evidence of defendant’s prior criminal record.” [Arnold v. State,] 193 Ga.App. [206,] at 207-08, 387 S.E.2d [417,] at 419 (1989).
“ *We conclude that the reasoning of the Arnold court is persuasive here. The justification the State offered in this present case for the admission of the evidence of the defendant’s prior uncharged violent conduct, i.e., that his answers on cross-examination indicating that he was not violent opened the door to questions regarding his character, is due to be rejected. It may not be said that the defendant chose to put his character at issue merely by responding to the prosecutor’s cross-examination designed to elicit testimony on that subject.’ ”

Ex parte Ray, 52 So.3d at 561-62 (quoting Ex parte Woodall, 730 So.2d at 661-62).

Here, just as in Ex parte Ray, the State pursued a line of questioning during cross-examination designed to compel Hammond to respond to questions that would place his character in issue and to ensure an excuse for the State’s introduction of evidence of Hammond’s prior sexual abuse of his cousin. Hammond stands in the same position as the defendant in Ex parte Ray, and “ ‘[i]t may not be said that [Hammond] chose to put his character at issue merely by responding to the prosecutor’s cross-examination designed to elicit testimony on that subject.’ ” Ex parte Ray, 52 So.3d at 562. Because the prosecution cannot open the door to rebuttal based on its own questioning on cross-examination, the circuit court erred when it allowed the State to present Hammond’s cousin as a rebuttal witness.

The State contends, alternatively, that regardless of the holding in Ex parte Ray, the rebuttal evidence was admissible against Hammond “in its own right” under Rule 404(b), Ala. R. Evid., to show motive. Rule 404(b), Ala. R. Evid., provides:

“Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show action in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident, provided that upon request by the accused, the prosecution in a criminal case shall provide reasonable notice in advance of trial, or during trial if the court excuses pretrial notice on good cause shoum, of the general nature of any such evidence it intends to introduce at trial.”

(Emphasis added.)

The record on appeal indicates that the trial in this case began on Tuesday, February 8, 2011. Before the trial began, the State filed no pretrial notice of its intent to introduce collateral-act evidence under Rule 404(b). On Friday, February 11, 2011, however, the State notified the court that a witness — K.X.—had come forward with similar allegations against Hammond. During a bench conference, the prosecutor explained the late notice as follows:

“I have information that I just received yesterday that this defendant has done the exact same thing to another member of his family when she was thirteen years of age, I have every right to ask him if that happened and I have every right to put her on the stand in rebuttal to tell about what did happen.
“I did not offer it in my case-in-chief. I did not try to re-open my case this morning, because I just found out about the information yesterday — excuse me, Wednesday evening. And we just located the witness yesterday.”

(R. 409-10.) At the time the State informed the circuit court that K.X. had come forward, Hammond had already taken the stand and had testified on his own behalf at trial.

The representations made by the prosecutor clearly demonstrate that the State did not immediately notify defense counsel after it learned that a witness had come forward with information regarding Hammond’s prior bad acts. Instead, the State waited almost two days to notify the circuit court and Hammond that K.X. had come forward, at which point Hammond had already taken the stand to testify in his defense. Therefore, Hammond’s decision to testify was made without the knowledge of the State’s intent to call K.X. to testify regarding Hammond’s prior bad acts.

The facts of this case exemplify the necessity of reasonable notice — pretrial or otherwise — under Rule 404(b). In the instant ease, reasonable notice as contemplated by Rule 404(b) would have been timely notice. Although we cannot say for certain that Hammond would have declined to take the stand to testify in his defense had he been timely notified that K.X. had come forward with her own rape allegations, we can certainly say that, had Hammond received timely notice, he would have been able to make a more informed decision regarding whether to testify in his defense. Further, had Hammond received reasonable notice of the State’s intent to introduce collateral-act evidence pursuant to Rule 404(b), he could have then requested that the circuit court give the jury a limiting instruction regarding the Rule 404(b) evidence. See Huddleston v. United States, 485 U.S. 681, 691-92, 108 S.Ct. 1496, 99 L.Ed.2d 771 (1988)(holding that, when evidence of a defendant’s other crimes, wrongs, or acts is introduced under Rule 404(b), Fed.R.Evid., “the trial court shall, upon request, instruct the jury that the similar acts evidence is to be considered only for the proper purpose for which it was admitted”); accord Ex parte Bill-ups, 86 So.3d 1079, 1085 (Ala.2010); Marks v. State, 94 So.3d 409, 413 (Ala.Crim.App.2012). Therefore, we cannot agree with the State that KX.’s testimony was admissible under Rule 404(b), given the particular facts of this case.

Moreover, the circuit court’s error in allowing K.X. to testify in this case cannot be considered harmless. The harmless-error rule provides, in pertinent part:

“No judgment may be reversed or set aside ... on the ground of ... improper admission or rejection of evidence, ... unless in the opinion of the court to which the appeal is taken or application is made, after an examination of the entire cause, it should appear that the error complained of has probably injuriously affected substantial rights of the parties.”

Ala. RApp. P. 45. In Ex parte Crymes, 630 So.2d 125 (Ala.1993), the Alabama Supreme Court further explained:

“In determining whether the admission of improper testimony is reversible error, this Court has stated that the reviewing court must determine whether the ‘improper admission of the evidence ... might have adversely affected the defendant’s right to a fair trial,’ and before the reviewing court can affirm a judgment based upon the ‘harmless error’ rule, that court must find conclusively that the trial court’s error did not affect the outcome of the trial or otherwise prejudice a substantial right of the defendant.”

630 So.2d at 126 (internal citations omitted in original). See also Ex parte Greathouse, 624 So.2d 208, 211 (Ala.1993) (holding that the proper harmless-error inquiry asks, absent the improperly introduced evidence, “is it clear beyond reasonable doubt that the jury would have returned a verdict of guilty”).

Our review of the record indicates that the State’s questioning on cross-examination and the testimony of Hammond’s cousin prejudiced Hammond to the point of calling into question the validity of his conviction. The State’s questioning of Hammond on cross-examination was highly prejudicial and was intended to force Hammond to put his character in issue, thus opening the door for the prosecution to call a rebuttal witness. Without K.X.’s rebuttal testimony, the only evidence presented for the jury’s consideration was Hammond’s word against his accuser’s; so K.X.’s testimony that tended to show Hammond preyed on his adolescent relatives may well have affected the outcome of the trial. Accordingly, the trial court’s error cannot be dismissed as harmless, and Hammond’s conviction must be reversed.

Because we are reversing Hammond’s conviction based on the circuit court’s error in allowing Hammond’s cousin to testify as a rebuttal witness, we need not address Hammond’s other contentions pertaining to the circuit court’s failure to grant a new trial based on newly discovered evidence and the circuit court’s refusal to allow a Department of Human Resources’ report into evidence.

Based on the foregoing, the judgment of the circuit court is reversed, and this case is remanded for proceedings consistent with this opinion.

REVERSED AND REMANDED. .

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

      . We note, however, that the prosecutor’s position below was that Rule 404(b) was inapplicable in this instance because ICX.'s testimony was not being offered as part of the State's case-in-chief. (R. 415-16.)