source: Caselaw Access Project

author: KELLUM, Judge.

license: Public Domain

text:
    Kenneth Eugene BILLUPS v. STATE of Alabama.
    CR-05-0773.
    Court of Criminal Appeals of Alabama.
    Aug. 27, 2010.
    Rehearing Denied Dec. 10, 2010.
    Certiorari Denied April 15, 2011 Alabama Supreme Court 1100324.

      John Harvey Wiley III, Birmingham, for appellant.
    Troy King, atty. gen., and Peter J. Smyczek and Richard D. Anderson, asst, attys. gen., for appellee.
   KELLUM, Judge.

The appellant, Kenneth Eugene Billups, was convicted of 13 counts of capital murder in connection with the killings of Wilbur Gomez, Enrique Marquez, Rafael Sal-cedo, and Manuel Nunez Perez. Counts I-IV charged him with murder made capital because it was committed during a first-degree robbery as to Gomez, Marquez, Salcedo, and Perez, respectively, see § 13A-5-40(a)(2), Ala.Code 1975. Counts V-VIII charged him with murder made capital because it was committed during a first-degree kidnapping as to Gomez, Marquez, Salcedo, and Perez, see § 13A-5-40(a)(1), Ala.Code 1975. Counts IX-XII charged him with murder made capital because it was committed during a first- or second-degree burglary as to Gomez, Marquez, Salcedo, and Perez, respectively, see § 13A-5-40(a)(4), Ala.Code 1975. Finally, Count XIII charged him with murder made capital because he killed Gomez, Marquez, Salcedo, and Perez by one act or pursuant to one scheme or course of conduct, see § 13A-5-40(a)(10), Ala.Code 1975. The jury unanimously recommended that Billups be sentenced to death. The circuit court followed the jury’s recommendation and sentenced Bill-ups to death. This appeal followed.

The State’s evidence tended to show the following: On December 16, 2003, Osman Valladres telephoned Pablo Stuart, a friend of his, and asked Stuart for a ride to Billups’s house in Center Point. Valladres told Stuart that he had to go to Billups’s house to collect a debt; instead, Valladres intended to purchase marijuana once they were at Billups’s house. Valladres had previously purchased marijuana from Bill-ups.

Stuart picked up Valladres at 3:00 p.m. and drove him to Billups’s house. When they arrived, Billups was waiting at the front door and directed Stuart to park his car in front of the garage. Stuart wanted to stay outside and wait in the car while Valladres went inside, but Billups persuaded him to come inside the house. Once in the house, Stuart and Valladres were escorted into the kitchen, where they sat at a table facing the wall. Stuart and Valla-dres saw marijuana and a stack of cash on the kitchen table. Billups and Charles Cooper, who were also seated at the table, began to smoke marijuana. Stuart was offered marijuana, but he declined. A few moments later, Billups’s girlfriend, Catrina Robina, emerged from another part of the house and entered the kitchen from behind Stuart and Valladres. Robina stated that she had “a headache,” while signaling for Cooper to put a gun to Stuart’s head. (R. 704.) Cooper pointed a gun at Stuart’s head and asked him if he had any marijuana. Quinton Parrish, who was also in the house, rushed into the room brandishing a gun equipped with a laser-scope. Billups, who was described by both Stuart and Valladres as the “boss” or leader of the group, then pulled out his gun.

After forcing Stuart and Valladres to the floor at gunpoint, Billups and his associates searched Stuart and Valladres for guns. Finding none, Billups and his associates bound Stuart and Valladres with duct tape. Parrish stripped Stuart of his wallet, a necklace, a bracelet, and a ring. Finding no drugs on Stuart or Valladres, Billups instructed Valladres to telephone someone who could get them some marijuana and cocaine. Valladres telephoned a drug dealer while they were at Billups’s house.

Stuart and Valladres were taken to the basement garage of Billups’s house where Parrish had moved Stuart’s car. Still bound with duct tape, Stuart and Valladres were forced at gunpoint’ into Stuart’s car and driven to Valladres’s apartment. Cooper, accompanied by Billups, drove Stuart and Valladres to the apartment. Parrish followed behind them in another car.

Once the group was at the apartment, the duct tape was removed from Stuart and Valladres. Billups then ordered Valla-dres to telephone some “Mexicans” and ask them to get some drugs; Valladres complied with Billups’s order. Approximately one to two hours later, two Hispanic men — Salcedo and Marquez — arrived at the apartment. Billups showed the two men a bag containing some money, telling them it was $70,000. Billups asked the men if they could get 45 pounds of marijuana and 2 kilos of cocaine. Salcedo and Marquez told Billups that they could get only 35 pounds of marijuana. Billups agreed to the exchange, and the men left the apartment. After the men left, Billups ordered pizza to be delivered. Meanwhile, Parrish took some jewelry, clothing, and hair clippers he had found in Valladres’s bedroom.

After waiting several hours and growing impatient, Billups ordered Valladres to telephone “the Mexicans” — i.e., Salcedo and Marquez — to see where they were; Valladres telephoned at least two times. At approximately 11:00 p.m., Salcedo and Marquez returned to the apartment carrying a plastic container full of marijuana, which they placed on the kitchen floor. A third Hispanic man walked into the apartment, prompting Billups to ask if anyone else had accompanied them. When they answered in the affirmative, Billups ordered Stuart to go and call the fourth Hispanic man inside. Once Salcedo, Marquez, and the two other Hispanic men— subsequently identified as Gomez and Perez — were in the apartment, Billups searched all four for weapons. Meanwhile, Stuart and Valladres positioned themselves near the kitchen and living-room doors, respectively.

After Billups inspected the marijuana, gunfire erupted. Billups and Parrish began firing their guns at the four unarmed Hispanic men. The four men pleaded for their lives. Valladres testified that some of the men were shot in the back as they stood up to flee. Billups knelt on the back of one of the victims who was already on the floor and shot him in the back of the head several times. Salcedo, Marquez, Gomez, and Perez were killed. Autopsies performed on the victims’ bodies indicated that all the victims sustained fatal gunshot wounds to the head.

Stuart and Valladres escaped the apartment during the shooting. Stuart ran and hid in the woods while Valladres fled to a friend’s apartment. Billups, Cooper, and Parrish emerged from the apartment, carrying the 35 pounds of marijuana. The three men got into the ear driven by Parrish and drove away.

Following the shooting, Cooper’s wife, Tangela, saw Billups with her husband. Tangela testified that Billups had a substantial amount of blood on his shoes. According to Tangela, Billups boasted, “I killed those motherfuckers.” (R. 1634.) Robert Walker, Billups’s cousin, saw Bill-ups shortly after the murders and heard Billups brag: “That shit was like ‘New Jack City.’ ” (R. 1674.) Walker believed Billups meant that the killings were done in a ruthless and cold-hearted manner. In January 2004, Billups was apprehended by United States marshals in Cedar Rapids, Iowa, and returned to Jefferson County to stand trial.

The jury found Billups guilty of the capital offenses charged in the indictment. Following the penalty phase of Billups’s trial, see § 13A-5-46, Ala.Code 1975, the jury unanimously recommended that Bill-ups be sentenced to death. A presentence report was then prepared as required by § 13A-5-47, Ala.Code 1975, and the circuit court held a separate sentencing hearing. After hearing testimony, the circuit court sentenced Billups to death. This appeal, which is automatic in a case involving the death penalty, followed. See § 13A-5-53, Ala.Code 1975.

Standard of Review

Because Billups has been sentenced to death, this Court must review the record for any “plain error.” Rule 45A, Ala. R.App. P., provides:

“In all cases in which the death penalty has been imposed, the Court of Criminal Appeals shall notice any plain error or defect in the proceedings under review, whether or not brought to the attention of the trial court, and take appropriate appellate action by reason thereof, whenever such error has or probably has adversely affected the substantial right of the appellant.”

As we stated in Hall v. State, 820 So.2d 113 (Ala.Crim.App.1999):

“The standard of review in reviewing a claim under the plain-error doctrine is stricter than the standard used in reviewing an issue that was properly raised in the trial court or on appeal. As the United States Supreme Court stated in United States v. Young, 470 U.S. 1, 105 S.Ct. 1038, 84 L.Ed.2d 1 (1985), the plain-error doctrine applies only if the error is ‘particularly egregious’ and if it ‘seriously affeetfs] the fairness, integrity or public reputation of judicial proceedings.’ See Ex parte Price, 725 So.2d 1063 (Ala.1998), cert. denied, 526 U.S. 1133, 119 S.Ct. 1809, 143 L.Ed.2d 1012 (1999); Burgess v. State, 723 So.2d 742 (Ala.Cr.App.1997), aff'd, 723 So.2d 770 (Ala.1998), cert. denied, 526 U.S. 1052, 119 S.Ct. 1360, 143 L.Ed.2d 521 (1999); Johnson v. State, 620 So.2d 679, 701 (Ala.Cr.App.1992), rev’d on other grounds, 620 So.2d 709 (Ala.1993), on remand, 620 So.2d 714 (Ala.Cr.App.), cert. denied, 510 U.S. 905, 114 S.Ct. 285, 126 L.Ed.2d 235 (1993).”

820 So.2d at 121-22.

With these principles in mind, we review the issues raised by Billups on appeal.

Guilt-Phase Issues

I.

Billups contends that the indictment in the instant case charging him with 13 counts of capital murder was multiplicitous in that the charges in the indictment were “excessive, prejudicial and prolix” and violated the principles of double jeopardy. (Billups’s brief, at 5-6.)

The indictment against Billups contained 13 counts and alleged that Billups caused the death of four victims: Gomez, Marquez, Salcedo, and Perez. The indictment included four counts — one for each victim — of each of the following: intentional murder during the commission of first-degree robbery, § 13A-5-40(a)(2), Ala. Code 1975; intentional murder during the commission of first- or second-degree burglary, § 13A-5-40(a)(4), Ala.Code 1975; and intentional murder during the commission of first-degree kidnapping, § 13A-5-40(a)(1), Ala.Code 1975. In addition to those 12 counts, the indictment charged Billups with murder made capital because he killed the four victims by one act or pursuant to one scheme or course of conduct, § 13A-5^0(a)(10), Ala.Code 1975.

“An indictment is multiplicitous if a single offense is charged in more than one count, thereby possibly prejudicing the defendant by suggesting that more than one offense had been committed.” Dill v. State, 723 So.2d 787, 808 (Ala.Crim.App.1998). In the instant case, the indictment charged Billups with three separate offenses as to each of the four victims and an additional offense for the murder of two or more people by one act or pursuant to one scheme or course of conduct. Each count in the indictment represented a separate offense under §§ 13A-5-40(a)(l), (2), (4), and (10), Ala.Code 1975, as to a separate victim. Therefore, the indictment was not multiplicitous.

Regarding Billups’s double-jeopardy claim, this Court has repeatedly held that multiple capital-murder convictions can be based on the death of one victim. Our Supreme Court addressed the merits of a claim similar to Billups’s claim in Ex parte Peraita, 897 So.2d 1227 (Ala.2004). In Peraita, supra, the defendant was indicted for two counts of capital murder for the death of one individual. The defendant argued that his indictment for two counts of capital murder violated his right not to be subjected to double jeopardy. Peraita, 897 So.2d at 1236. Rejecting the defendant’s argument in Peraita, our Supreme Court stated:

“Peraita argues that both state and federal law prohibit a state from subjecting a defendant to double jeopardy, and that the indictment charging him sought to exact ‘multiple prosecutions’ for the same offense. Blockburger v. United States, 284 U.S. 299, 52 S.Ct. 180, 76 L.Ed. 306 (1932).
“The Blockburger test is aimed at, among other things, “‘multiple punishments imposed in a single prosecution.” ’ Grady v. Corbin, 495 U.S. 508, 516-17, 110 S.Ct. 2084, 109 L.Ed.2d 548 (1990) (quoting Garrett v. United States, 471 U.S. 773, 778, 105 S.Ct. 2407, 85 L.Ed.2d 764 (1985)). Peraita argues that conviction of two counts of capital murder for the killing of a single person constitutes such multiple punishment. He cites Meyer v. State, 575 So.2d 1212 (Ala.Crim.App.1990), and Ex parte Rice, 766 So.2d 143 (Ala.1999), for the proposition that multiple charges from the same statute violate double-jeopardy principles.
“The defendant in Meyer was charged with capital murder and indicted for three counts of capital murder for the killing of one person. His indictment alleged that he committed the murder while committing robbery of three separate items. The Court of Criminal Appeals held that these three allegations were merely three ‘ “alternative methods of proving the same crime, and therefore, did not constitute separate offenses.” ’ Meyer, 575 So.2d at 1217 (quoting Sisson v. State, 528 So.2d 1159, 1162 (Ala.1988)).
“In Rice, the defendant was charged with two counts of capital murder for the killing of one individual during a robbery and a kidnapping; he was convicted of two counts of ‘the crime of murder’ under Ala.Code 1975, § 13A-6-2(a)(3), specifically the lesser-included offense of felony murder. This Court held that, much like Meyer and Sisson, each count in Rice was an alternative method of proving but a single crime.
“In contrast to Meyer and Rice, the two capital-murder charges against Per-aita are separate offenses. Each count of capital murder is a separate offense, as shown by the beginning of the statute defining capital offenses, which provides, ‘The following are capital offenses.’ Ala. Code 1975, § 13A-5-40(a). So long as each count of the crime concerns a separate offense, as opposed to a separate method of proving that offense, the double-jeopardy provision of the United States Constitution is not implicated. We hold that Peraita’s right to be free from double jeopardy was not violated by his having been tried and convicted of two counts of capital murder for the killing of one individual.”

Peraita, 897 So.2d at 1236. See also Powell v. State, 796 So.2d 404, 423-24 (Ala.Crim.App.1999) (holding that indictment charging defendant with the separate capital offenses of murder during the course of a burglary in the first degree, murder during the course of a robbery in the first degree, murder during a rape in the first degree, and murder during sodomy in the first degree for the murder of one victim did not violate the Double Jeopardy Clause).

In the present case, Billups was charged with 13 counts of capital murder for the murders of 4 individuals. In separate counts of the indictment, Billups was charged with four counts of murder made capital because it was committed during the course of a first-degree robbery; four counts of murder made capital because it was committed during the course of a first- or second-degree burglary; and four counts of murder made capital because it was committed during the course of a first-degree kidnapping. The final count in the indictment charged Billups with the murder of two or more people pursuant to one act or course of conduct. In keeping with Peraita, supra, and Powell, supra, Billups was indicted for multiple counts of capital murder for each of the four victims in the instant case. Therefore, the charges in the indictment were not multiplicitous, and Billups’s conviction for 13 counts of capital murder did not violate double-jeopardy principles.

II.

Billups next contends that the circuit court abused its discretion in denying his pretrial request for funds to hire mitigation experts to assist him in the penalty phase of the capital-murder trial.

In Ex parte Moody, 684 So.2d 114 (Ala.1996), the Alabama Supreme Court defined the standard by which a trial court must assess an indigent defendant’s request for expert assistance:

“Although the [United States] Supreme Court has not specifically stated what ‘threshold showing’ must be made by the indigent defendant with regard to the need for an expert, the Court refused to require the state to pay for certain experts when the indigent defendant ‘offered little more than undeveloped assertions that the requested assistance would be beneficial.’ Caldwell v. Mississippi 472 U.S. 320 at 323, 105 S.Ct. 2633 at 2637, 86 L.Ed.2d 231 (1985). As we stated in Dubose [v. State, 662 So.2d 1189 (Ala.1995),] the Supreme Court cases of Ake [v. Oklahoma, 470 U.S. 68, 105 S.Ct. 1087, 84 L.Ed.2d 53 (1985),] and Caldwell, "viewed together, seem to hold that an indigent defendant must show more than a mere possibility that an expert would aid in his defense. ‘Rather, the defendant must show a reasonable probability that an expert would aid in his defense and [must show that] a denial of an expert to assist at trial would result in a fundamentally unfair trial.’ Dubose, 662 So.2d at 1192, citing Moore v. Kemp, 809 F.2d 702 (11th Cir.), cert. denied, 481 U.S. 1054, 107 S.Ct. 2192, 95 L.Ed.2d 847 (1987).
“Based on the foregoing, we conclude that for an indigent defendant to be entitled to expert assistance at public expense, he must show a reasonable probability that the expert would be of assistance in the defense and that the denial of expert assistance would result in a fundamentally unfair trial. To meet this standard, the indigent defendant must show, with reasonable specificity, that the expert is absolutely necessary to answer a substantial issue or question raised by the state or to support a critical element of the defense. If the indigent defendant meets this standard, then the trial court can authorize the hiring of an expert at public expense.”

Moody, 684 So.2d at 119.

The record reflects that Billups filed a motion for funds to hire a mitigation expert. He stated as grounds for his motion that he had been charged with capital murder; that the case was very factually complicated; that the prosecution had not indicated that it would offer Billups a plea deal; that an expert was necessary to ensure that Billups received a fair trial; and that it was imperative for the court to grant the motion, based on the prosecution’s decision to seek the death penalty. At the hearing on the motion, defense counsel argued before the circuit court as follows:

“THE COURT: On what issue would the psychologist be beneficial to the defendant? Is there any issue of retardation or mental illness or anything of that nature in this case?
“[DEFENSE COUNSEL]: There is none apparent, Judge. But the State has made it extremely clear at least to this point and after the reading of a thirteen-count indictment, each count of which has its own aggravating circumstance — and I have discussed this matter with the State and there have been no offers of settlement in this matter — it certainly appears clear that the State is seeking the death penalty in this case and intends to go forward with it.
“I would think that the defendant would be entitled to — or defense, I should say, should be entitled to — know whether or not the defendant does have difficulties in that manner. But I think that would speak more to the expense for the private psychologist as opposed to the mitigation expert. That is why I wanted the Court to know that if we had a choice, I would prefer to have the—
“THE COURT: I guess the question is really if there is a need for either. I have tried many cases of this nature in the past where mitigation was presented without an expert. I guess my question is why is there a need for an expert to do that in this case?
“[DEFENSE COUNSEL]: Because, Judge, just to be blunt with the Court, I think the likelihood of the death penalty in this case is extremely high. I think most capital cases that come through here on a routine basis, while they may be death-qualified under the statute, I don’t know that they are as likely as the death penalty would be in this case.
“As I said earlier, we have a thirteen-count indictment, each count of which carries its own aggravating circumstance. There may be other aggravating circumstances. And I will tell the Court, in my opinion, that there is.
“But each count of the thirteen-count indictment carries its own aggravating factor. And that is why I think that the defense would be entitled to a mitigation expert.”

(R. 29-30.)

In the instant case, Billups failed to show that his trial would be fundamentally unfair because the circuit court did not approve funds for a mitigation expert. Billups merely speculated regarding his need for an expert and based his request primarily on the fact that he was being tried for capital murder. See Lee v. State, 898 So.2d 790, 853 (Ala.Crim.App.2001) (mere speculation that an expert would assist in the defense does not satisfy threshold showing that the denial of funds to hire an expert would result in fundamentally unfair trial); see also Hodges v. State, 856 So.2d 875, 915 (Ala.Crim.App.2001) (holding that general request for funds on basis that all capital defendants should be. given funds for investigator does not satisfy defendant’s burden). Therefore, the circuit court did not abuse its discretion in denying Billups’s request for funds to hire a mitigation expert.

III.

Billups also contends that the circuit court erred by admitting into evidence audio recordings of telephone conversations he had while he was incarcerated awaiting trial. Billups argues that the recordings were obtained illegally and without his permission, that they violated his right to privacy, and that they constituted illegal eavesdropping. The record indicates that the State introduced audio recordings of conversations between Billups and his mother in October 2005 and November 2005 in which Billups attempts to speak with witnesses and to fabricate an alibi for trial. The audio recordings were admitted over Billups’s objection.

“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).

In Alabama, a prisoner has no reasonable expectation of privacy in the telephone conversations engaged in by the prisoner at a penal institution. Teat v. State, 636 So.2d 697 (Ala.Crim.App.1993). As this Court noted in Teat:

“As the United States Supreme Court stated in Bell v. Wolfish, 441 U.S. 520, 99 S.Ct. 1861, 60 L.Ed.2d 447 (1979):
“ ‘ “Lawful incarceration brings about the necessary withdrawal or limitation of many privileges and rights, a retraction justified by the considerations underlying our penal system.” Price v. Johnston, 334 U.S. 266, 285, 68 S.Ct. 1049, 1060, 92 L.Ed. 1356 (1948) ... The fact of confinement as well as the legitimate goals and policies of the penal institution limits these retained constitutional rights ... A detainee simply does not possess the full range of freedoms of an unincarcerated individual.’
441 U.S. at 546, 99 S.Ct. at 1877-78.”

636 So.2d at 698-99.

Testimony at trial established that inmates in the county jail where Billups was housed before trial were warned that telephone calls they made from the county jail were being recorded. Contrary to Bill-ups’s contention on appeal, he had no reasonable expectation of privacy when he made telephone calls from the county jail. Therefore, the circuit court did not abuse its discretion by admitting the audio recordings of Billups’s telephone conversations into evidence at trial.

Penalty-Phase Issues

IV.

Billups contends that the circuit court erred by allowing the State, during the penalty phase of Billups’s trial, to present what he characterizes as irrelevant and prejudicial evidence regarding the murder of Steven Lockett, whose murder Billups had been charged with but not yet convicted of before his trial here. Billups contends that the State had no basis for submitting evidence regarding Lockett’s murder because, he argues, the evidence was not relevant to any aggravating circumstance set out in § 13A-5^49, Ala.Code 1975, but instead was a nonstatu-tory aggravating circumstance. Specifically, Billups contends that the State offered evidence of Lockett’s murder to establish the aggravating circumstance under § 13A-5-49(10), Ala.Code 1975, that the capital offense was one of a series of intentional killings committed by Billups.

During the penalty phase of Billups’s trial, the State presented evidence that on December 13, 2003 — three days before the multiple murders in this case — the badly burned body of Steven Lockett was found in a pick-up truck that had been burned. An autopsy of Lockett’s body determined that the cause of his death was multiple gunshot wounds, including one to the back of his head. Lockett had been seen with Billups on several occasions before the murder. The last calls made on Lockett’s cellular telephone were made to a telephone number used by Billups. During a search of Billups’s house in January 2004, police discovered blood in the kitchen of Billups’s house that was later identified as Lockett’s blood. The police also discovered a 9mm handgun in Billups’s house belonging to Lockett. According to Lock-ett’s girlfriend, Lockett carried the gun with him at all times. The evening before his body was discovered, Lockett left his girlfriend’s house with $5,400 cash in his possession. Based on the evidence accumulated during the police investigation of Lockett’s murder, Billups was indicted for Lockett’s murder. Billups had not yet been tried for Lockett’s murder at the time of the trial for the four murders here.

The admissibility of evidence at the jury sentencing hearing in a capital case is governed by §§ 13A-5-45(c) and (d), Ala. Code 1975. “At the sentencing hearing evidence may be presented as to any matter that the court deems relevant to the aggravating and mitigating circumstances referred to in Sections 13A-5-49, 13A-5-51 and 13A-5-52.” § 13A-5-45(c), Ala. Code 1975. Section 13A-5^45(d), Ala.Code 1975, provides: “Any evidence which has probative value and is relevant to sentence shall be received at the sentence hearing regardless of its admissibility under the exclusionary rules of evidence, provided that the defendant is accorded a fair opportunity to rebut any hearsay statements.” Under the provisions of §§ 13A-5-45(c) and (d), the strict rules of evidence are not applicable to sentencing hearings. See Stephens v. State, 580 So.2d 11, 23 (Ala.Crim.App.1990).

In the present case, the evidence presented by the State was both probative and relevant to show Billups’s propensity for violence. See Siebert v. State, 562 So.2d 586, 597-98 (Ala.Crim.App.1989) (evidence of violence of defendant’s prior manslaughter offense was both relevant and probative in penalty phase of trial). See also Ex parte Loggins, 771 So.2d 1093, 1103 (Ala.2000) (“ ‘evidence is relevant if it has any probative value, however slight, upon a matter at issue in the case’ ”).

Because the evidence of Lockett’s murder was admissible to prove Billups’s propensity for violence, we find no merit to Billups’s claim that the circuit court erred in admitting evidence of Lockett’s murder to prove the aggravating circumstance set out in § 13A-5-49(10), Ala.Code 1975, namely that “[t]he capital offenses in this case were one of a series of intentional killings committed by the defendant.” Although the circuit court instructed the jury on the aggravating circumstance set out in § 13A-5-49(10), the court stated in its sentencing order that it did not find the existence of this particular aggravating circumstance. In addressing this aggravating circumstance, the court stated:

“Whether the capital offense was one of a series of intentional killings committed by the Defendant — this aggravating circumstance does not apply. The State of Alabama sought to prove this aggravating circumstance by showing that [Billups] was also guilty of the murder of Steven Lockett. Steven Lockett’s body was found burned in a pick-up truck on December 13, 2003, three days before the quadruple homicide in which [Billups] has been convicted. There was testimony that Steven Lockett was killed from multiple gunshot wounds, including one to the back of his head. There was testimony during the penalty phase that blood found at [Billups’s] residence belonged to Steven Lockett. Lockett’s girlfriend had seen [Billups] with Lockett on prior occasions. The last calls made on Lockett’s cell phone were made to a number used by [Bill-ups]. A nine millimeter firearm found in Kenneth Billups’s house was a firearm belonging to Lockett that he took with him on the night he was shot. At trial, there was testimony that a shell casing found near where Steven Lock-ett’s blood was found in Kenneth Bill-ups’s house was shot from the same firearm that was also used during the incident in question. Although there was substantial evidence that Kenneth Billups was involved in the murder of Steven Lockett, and the Court believes the jury could have found beyond a reasonable doubt that this aggravating circumstance existed based upon [its] finding that Kenneth Billups committed the four murders in question and the murder of Steven Lockett three days earlier, the Court does not know the jury’s actual finding as it relates to this aggravating circumstance. Although the Court proposed a special verdict form for the jury to outline [its] findings regarding aggravating circumstances, no such form was submitted to the jury when one or both of the parties objected. Since Mr. Billups has not been convicted in the death of Steven Lockett and there is a possibility that someone other than Bill-ups could have committed that offense, the Court does not find that this is an aggravating circumstance.”

(C. 69.)

Assuming without deciding that it would have been error for the circuit court to find the existence of an aggravating circumstance under § 13A-5-49(10), the error would not require a reversal of Bill-ups’s convictions, given the number of other statutory aggravating circumstances supporting the imposition of the death sentence. See Edwards v. State, 515 So.2d 86 (Ala.Crim.App.1987) (holding that application of nonstatutory aggravating circumstance did not necessitate reversal where a statutory aggravating circumstance to uphold the sentence of death was also present).

Moreover, because the harmless-error rule applies to sentencing hearings in capital cases, Ex parte Whisenhant, 482 So.2d 1241, 1244 (Ala.1983), reversal is not warranted in this case. 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, nor for error as to any matter of pleading or procedure, unless in the opinion of the court to which the appeal is taken or application is made, after examination of the entire cause, it should appear that the error complained of has probably injuriously affected substantial rights of the parties.”

Rule 45, Ala. R.App. P.

In Chapman v. California, 386 U.S. 18, 24, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967), the United States Supreme Court held that before the violation of certain constitutional rights can be held to be harmless, the appellate court must be able to declare a belief that it was harmless beyond a reasonable doubt. “The purpose of the harmless error rule is to avoid setting aside a conviction or sentence for small errors or defects that have little, if any, likelihood of changing the result of the trial or sentencing.” Davis v. State, 718 So.2d 1148, 1164 (Ala.Crim.App.1997), aff'd, 718 So.2d 1166 (Ala.1998), cert. denied, 525 U.S. 1179, 119 S.Ct. 1117, 143 L.Ed.2d 112 (1999).

This Court has previously held that in instances when testimony has been erroneously admitted into evidence, that testimony can be rendered harmless by the admission of lawful evidence that tends to demonstrate the same facts. In McNabb v. State, 887 So.2d 929 (Ala.Crim.App.2001), aff'd, 887 So.2d 998 (Ala.2004), this Court explained:

“ ‘ “[Testimony that may be inadmissible may be rendered harmless by prior or subsequent lawful testimony to the same effect or from which the same facts can be inferred.”’ Jackson v. State, 791 So.2d 979, 1013 (Ala.Crim.App.), cert. denied, 791 So.2d 1043 (Ala.2000), cert. denied, 532 U.S. 934, 121 S.Ct. 1387, 149 L.Ed.2d 311 (2001), quoting White v. State, 650 So.2d 538, 541 (Ala.Crim.App.1994), overruled on other grounds, Ex parte Rivers, 669 So.2d 239 (Ala.Crim.App.1995). See also, Dawson v. State, 675 So.2d 897, 900 (Ala.Crim.App.1995), aff'd 675 So.2d 905 (Ala.1996) (‘The erroneous admission of evidence that is merely cumulative is harmless error.’); and Thompson v. State, 527 So.2d 777, 780 (Ala.Crim.App.1988) (‘Testimony which may be apparently illegal upon admission may be rendered prejudicially innocuous by subsequent or prior lawful testimony to the same effect or from which the same facts can be inferred.’).”

887 So.2d at 971.

Although we recognize that the harmless-error rule is to be applied with extreme caution in capital cases, see Ex parte Whisenhant, 482 So.2d 1247, 1249 (Ala.1984), we nevertheless find the harmless-error rule applicable here. The evidence established that Billups had a criminal history that consisted of three convictions for robbery in the first degree. A victim of a robbery of which Billups had been convicted testified at the sentencing hearing that Billups had robbed her while holding a gun to her head. The robbery victim’s testimony tended to prove the same fact that the testimony regarding Lockett’s murder proved, i.e., Billups’s propensity for violence. Further, given the totality of the evidence presented, we cannot say that Billups was prejudiced to the point of calling into question the validity of his sentences.

Accordingly, no basis for reversal exists as to this claim.

V.

Lastly, Billups contends that Alabama’s death-penalty statute violates his due-process rights. Specifically, Billups argues that the statute fails to narrow the class of death-eligible offenders and is, therefore, arbitrary. Billups asserts that approximately two-thirds of the death sentences imposed in Alabama are based on the aggravating factor of robbery, thus demonstrating the inability of Alabama’s capital-sentencing scheme to meaningfully narrow the offenses which may be death eligible.

This Court has previously addressed and rejected this contention. In Ex parte Woodard, 631 So.2d 1065 (Ala.Crim.App.1993), we stated:

“ ‘A capital sentencing scheme must, in short, provide a “ ‘meaningful basis for distinguishing the few cases in which [the death penalty] is imposed from the many cases in which it is not.’ ” [Gregg v. Georgia, 428 U.S. 153, 188, 96 S.Ct. 2909, 2932, 49 L.Ed.2d 859 (1976) ], quoting Furman v. Georgia, [408 U.S. 238, 313, 92 S.Ct. 2726, 2763, 33 L.Ed.2d 346 (1972) ](White, J., concurring).
“ ‘This means that if a State wishes to authorize capital punishment it has a constitutional responsibility to tailor and apply its law in a manner that avoids the arbitrary and capricious infliction of the death penalty.’
“Godfrey v. Georgia, 446 U.S. 420, 427-428, 100 S.Ct. 1759, 1764, 64 L.Ed.2d 398, 406 (1980).
“Alabama’s capital offense statute includes a sentencing scheme that is neither arbitrary nor capricious. Ex parte Hays, 518 So.2d 768, 774 (Ala.1986); Daniels v. State, 534 So.2d 628, 642-45 (Ala.Cr.App.1985), aff'd, 534 So.2d 656 (Ala.1986), cert. denied, 479 U.S. 1040, 107 S.Ct. 898, 93 L.Ed.2d 850 (1987).
“ ‘The Supreme Court has required heightened reliability in the imposition of the death penalty, but the Court has not mandated any particular state statutory approach to capital punishment. To minimize the risk of arbitrary action and provide individualized sentencing, however, the Court has imposed two general requirements on the capital sentencing process. First, a state must channel the sentencer’s discretion in order to “genuinely narrow the class of persons eligible for the death penalty and ... [thus] reasonably justify the imposition of a more severe sentence on the defendant compared to others found guilty of murder.” Second, the State may not limit the sentencer’s consideration of any relevant evidence that might lead the sentencer to decline to impose the death penalty.
“‘The required narrowing of the class of death-eligible defendants may occur at either the guilt or the sentencing phase of a capital trial. When narrowing is accomplished during the sentencing phase, the sentencer determines whether certain characteristics of the crime, known as aggravating circumstances, distinguish the gravity of the offense so as to justify the imposition of the death penalty.’
“Daniel F. Mclnnis et ah, Project, Twenty-Second Annual Review of Criminal Procedure: United States Supreme Court and Courts of Appeals 1991-1992, 81 Geo.LJ. 853, 1471-73 (1993) (footnotes omitted).”

Ex parte Woodard, 631 So.2d at 1069-70. See also Vanpelt v. State, 74 So.3d 32, 50 (Ala.Crim.App.2009); McGowan v. State, 990 So.2d 931, 996 (Ala.Crim.App.2003); and Johnson v. State, 823 So.2d 1, 51-52 (Ala.Crim.App.2001).

Thus, this issue has previously been considered and rejected by this Court, and no basis for reversal exists as to this claim.

Sentencing Order

As required by § 13A-5-53, Ala.Code 1975, this Court must review the propriety of Billups’s capital-murder convictions and death sentences.

Billups was convicted of murdering Gomez, Marquez, Salcedo, and Perez-during the course of a first-degree robbery, § 13A-6-40(a)(2), Ala.Code 1975; during the course of a first-degree kidnapping, § 13A-5-40(a)(l), Ala.Code 1975; during the course a first- or second-degree burglary, § 13A-5-40(a)(4), Ala.Code 1975; and by killing Gomez, Marquez, Salcedo, and Perez by one act or pursuant to one scheme or course of conduct, § 13A-5-40(a)(10), Ala.Code 1975.

The record indicates that Billups’s sentence was not imposed under the influence of passion, prejudice, or any other arbitrary factor. See § 13A-5-53(b)(l), Ala. Code 1975.

The circuit court found that the aggravating circumstances outweighed the mitigating circumstances. In its sentencing order, the circuit court found the existence of eight statutory aggravating circumstances: (1) that the capital offenses were committed while Billups was on parole for the commission of a felony offense, see § 13A-5-49G), Ala.Code 1975; (2) that Billups had been previously convicted of another felony involving a threat of violence to the person, see § 13A-5-49(2), Ala.Code 1975; (3) that Billups knowingly created a great risk of death to many persons, see § 13A-5^49(3), Ala.Code 1975; (4) that the capital offenses were committed during the course of a first-degree robbery, see § 13A-5-49(4), Ala. Code 1975; (5) that the capital offenses were committed during the course of a first- or second-degree burglary, see § 13A-5^9(4), Ala.Code 1975; (6) that the capital offenses were committed during the course of a first-degree kidnapping, see § 13A-5-49(4), Ala.Code 1975; (7) that the capital offenses were especially heinous, atrocious, or cruel when compared to other capital offenses, see § 13A-5-49(8), Ala. Code 1975; and (8) that Billups intentionally caused the death of two or more persons by one act or pursuant to one scheme or course of conduct, see § 13A-5-49(9), Ala.Code 1975.

The circuit court found no statutory mitigating circumstances. In accordance with § 13A-5-52, Ala.Code 1975, the court considered nonstatutory mitigating circumstances and stated:

“The Court notes that [Billups] did not cause any trouble in court, but this is diminished by evidence that [Billups] made phone calls from the jail in an attempt to set-up false alibi witnesses. Although the phone calls are not considered as an aggravating circumstance, they weigh against any weight that may have been given based upon [Billups’s] proper behavior in court. The defense also submitted testimony that [Billups] did not receive any disciplinaries when he was previously in prison, that he had attended cooking school and obtained his GED while in prison. The Court finds that these factors add little, if any, weight in mitigation on behalf of [Bill-ups].”

(C. 70.) The circuit court weighed the aggravating circumstances against the mitigating circumstances, or lack of mitigating circumstances, and determined that the aggravating circumstances outweighed the mitigating circumstances and sentenced Billups to death.

The circuit court’s finding that the capital offenses were committed while Billups was on parole for the commission of a felony offense is supported by the testimony of Phillip Merriweather, Billups’s parole officer, who testified that Billups was placed on parole in 2001 and that his sentence of parole was not scheduled to end until 2013. The circuit court’s finding that the capital offenses were committed after Billups had previously been convicted of another capital offense or of a felony involving the use or threat of violence to the person is supported by the evidence. The State’s proof of Billups’s 1992 convictions for first-degree robbery — i.e., armed robbery — supports a finding of this aggravating circumstance. See Hadley v. State, 575 So.2d 145, 156 (Ala.Crim.App.1990), aff'd on return to remand, 588 So.2d 938 (Ala.Crim.App.1991) (“Historically, offenses which have been found to uphold [§ 13A-5-49(2) ] include: armed robbery....”). The circuit court’s finding that in committing the capital offenses Billups knowingly created a great risk of death to many persons is supported by the evidence that six individuals were in the apartment when the shooting occurred. See Wilson v. State, 777 So.2d 856, 921 (Ala.Crim.App.1999), aff'd, 777 So.2d 935 (Ala.2000), cert. denied, 531 U.S. 1097, 121 S.Ct. 826, 148 L.Ed.2d 709 (2001) (holding that defendant’s conduct created a risk to seven people who were in one room, counting the four decedents and therefore was undeniable proof that the defendant created a great risk of death to many persons).

With regard to the application of the aggravating circumstance that the murders were especially heinous, atrocious, or cruel, the circuit court made the following findings of fact:

“Evidence established that four people were brutally murdered by [Billups] and his accomplices on December 16, 2003. Four victims, and two individuals who escaped, sat there briefly with guns pointed at them knowing they would probably be killed. As the shooting began, some of the individuals watched as their friends were gunned down. Testimony established that at least one of the individuals tried to get up after the shooting, but [he was] again shot down. Testimony of Gary Simmons, a forensic pathologist with the ... Coroner’s Office, established that Rafael Salcedo received two gunshot wounds to the head and neck area. Enrique Marquez had multiple gunshot wounds, including one shot to the back of the head. Some of these wounds would have caused debilitation, but Dr. Simmons was not of the opinion that they were instantly debilitating even though they were the cause of Salcedo’s death. Manuel Nunez Perez received three gunshot wounds to his head and back. Wilbur Gomez received a shot in the lower back of his head which went through his brain. It is clear that some of the individuals were forced to watch or try to escape as their friends were being killed, and if the individuals lived through their first wound they were meticulously executed by Kenneth Billups and one or more of his accomplices.”

(C. 69.)

In Taylor v. State, 808 So.2d 1148 (Ala.Crim.App.2000), aff'd, 808 So.2d 1215 (Ala.2001), cert. denied, 534 U.S. 1086, 122 S.Ct. 824, 151 L.Ed.2d 705 (2002), we addressed the application of this aggravating circumstance. We find the following language to be particularly relevant to this case:

“The Alabama appellate courts’ interpretation of ‘especially heinous, atrocious, or cruel’ has passed muster under the Eighth Amendment because those courts have consistently defined the term to include only ‘those conscienceless or pitiless homicides which are unnecessarily torturous to the victim.’ Ex parte Clark, [728 So.2d 1126 (Ala.1998) ], citing, Lindsey v. Thigpen, 875 F.2d 1509 (11th Cir.1989). The Alabama appellate courts have considered the infliction of psychological torture as especially indicative that the offense was ‘especially heinous, atrocious or cruel.’ Thus, the mental suffering where a victim witnesses the murder of another and then realizes that soon he or she will also be killed, has been found to be sufficient to support a finding of this aggravating circumstance. Norris v. State, 793 So.2d 847, 854 (Ala.Cr.App.1999). As the trial judge pointed out in his sentencing order, two of the victims here witnessed Taylor kill another victim. Both tried to run and hide, but were captured. Both begged and pleaded for them lives; one offering money and property, the other pleading for the sake of her children. Both were deliberately and methodically executed with a gunshot to the head as they pleaded for their lives. These murders were not accomplished in a rapid-fire manner; there was sufficient time between the three murders for the next victim to be placed in significant fear for his or her life, and the evidence is clear that each was well aware of what was about to happen.”

808 So.2d at 1169.

Here, just as in Taylor, there was sufficient time in between each of the murders for the remaining victims to realize their own fates. The circuit court properly concluded that the murder of the four victims was “especially heinous, atrocious, or cruel.” See Ex parte Clark, 728 So.2d 1126, 1140 (Ala.1998).

The circuit court’s findings that the murders were committed during the commission of first-degree robbery, first- or second-degree burglary, first-degree kidnapping, and by one act or pursuant to one scheme or course of conduct are supported by the jury’s verdict during the guilt phase of Billups’s trial. This Court has held that: “If the actions committed during the course of the murder support the finding that more than one of the enumerated underlying felonies was committed, then a trial court may apply § 13A-5^9(4) more than once.” Hodges v. State, 856 So.2d 875, 889 (Ala.Crim.App.2001). The circuit court’s findings regarding statutory and nonstatutory mitigating circumstances are likewise supported by the record. We agree with the circuit court’s findings.

Pursuant to § 13A-5-53(b)(2), Ala.Code 1975, this Court must independently weigh the aggravating circumstances and the mitigating circumstances to determine the propriety of Billups’s death sentence. After independently weighing those circumstances, we are convinced that death is the appropriate sentence in this case. See § 13A-5-53(b)(2), Ala.Code 1975.

Further, as required by § 13A-5-53(b)(3), Ala.Code 1975, we must determine whether Billups’s death sentence was disproportionate to the sentences imposed in similar cases. Billups’s sentence was not. See, e.g., Sharifi v. State, 993 So.2d 907, 950 (Ala.Crim.App.2008) (multiple murders by one act, scheme, or course of conduct); Flowers v. State, 922 So.2d 938, 961 (Ala.Crim.App.2005) (kidnapping/murder); Walker v. State, 932 So.2d 140, 162 (Ala.Crim.App.2004) (burglary/murder); and Smith v. State, 795 So.2d 788, 842 (Ala.Crim.App.2000) (robbery/murder).

Finally, we have searched the record for any error — plain, preserved, or otherwise — that may have adversely affected Billups’s substantial rights and have found none. See Rule 45A, Ala. RApp. P.

For the foregoing reasons, Billups’s capital-murder convictions and his sentence of death are due to be affirmed.

AFFIRMED.

WISE, P.J., and WELCH and MAIN, JJ., concur. WINDOM, J., concurs in the result.

      . This case was originally assigned to another member of this Court. It was reassigned to Judge Kellum on May 5, 2009. Although Judge Kellum was not a member of this Court when this case was orally argued, she has reviewed the audiotapes and videotapes of oral argument.

      . New Jack City was a movie released in 1991 about a rising drug dealer/crime lord in New York City, containing multiple depictions of graphic violence. A clip of the movie was offered into evidence by the prosecutor but was not admitted.

      . Billups was subsequently convicted of murdering Lockett during the commission of a first-degree robbery, and he was sentenced to death. This Court affirmed Billups’s conviction and sentence on direct appeal. See Bill-

        ups v. State, [Ms. CR-05-1767, November 13, 2009] — So.3d - (Ala.Crim.App.2009).

      . During oral argument, Billups was asked to file a supplemental brief regarding this issue. Billups filed a supplemental brief, expanding his original argument as to this issue; he also raised eight additional issues. On January 16, 2008, this Court struck the eight new issues and accepted that part of the brief pertaining to the amended issue.

      . After the Alabama Supreme Court released Whisehhant, the United States Supreme Court held that a harmless-error analysis applies even to the jury's consideration of an erroneous aggravating circumstance. Clemons v. Mississippi, 494 U.S. 738, 110 S.Ct. 1441, 108 L.Ed.2d 725 (1990); see also Brooks v. State, 973 So.2d 380 (Ala.Crim.App.2007).


author: WELCH, Judge.

text:
    Wesley LITTLE v. STATE of Alabama.
    CR-09-0149.
    Court of Criminal Appeals of Alabama.
    Aug. 27, 2010.
    Certiorari Denied April 8, 2011 Alabama Supreme Court 1091694.
    Jim Gaines, Magnolia Springs; and Randall O. Gladden, Huntsville, for appellant.
    Troy King, atty. gen., and Ferris Stephens, asst. atty. gen., for appellee.
   On Application for Rehearing

WELCH, Judge.

The opinion released on June 25, 2010, is withdrawn and the following opinion is substituted therefor.

Wesley Little was convicted of possession of a firearm after it has been altered in violation of § 13A-11-64, Ala.Code 1975. The trial court sentenced Little to a term of seven years’ imprisonment and ordered Little to pay a $500 fine and a $250 assessment to the Crime Victims Compensation Fund. Little filed a motion for a new trial, which was denied by operation of law. This appeal followed.

Little does not challenge the sufficiency of the evidence; therefore, only a brief recitation of the facts is necessary. The following evidence was presented at trial. In February 2008, Little was working as a police officer for the Huntsville Police Department and was being investigated by the police department’s internal affairs division for several violations of police procedure.

In December 2007, Little had responded to an officer-needs-assistance call on Calvary Street because an individual had run from another officer into a shot house. Little and another police officer knocked on the door, and a man opened the door. Little asked to speak with “Bay Boy,” the owner of the house. (R. 278.) Several police officers then entered the house because there were a lot of people inside. Little found a pistol under a bed; the serial number had been removed.

According to Little’s statement to law-enforcement officials, Little told Officer Joe German, who was on the scene, what had happened, and Officer German stated, “ ‘I’m very familiar with Bay Boy and he is familiar with me.’ ” (R. 279.) Officer Ger-man then told Little, “ ‘You do whatever you want, but if you ever need any info he will give it to you.’ ” (R. 279.) Little warned Bay Boy that he could put him in jail but that he would not do it that night. Little then put the gun in the trunk of his patrol car and stated that he then forgot about the weapon for two weeks. Little told police investigators that when he realized that he had not turned in the weapon, he did not know what to do because he would get himself and other officers in trouble if he turned the weapon in.

As part of the Community Oriented Policing Program (“COPP”), the Huntsville Police Department inspects officers’ patrol cars for equipment functionality and for cleanliness. In connection with the investigation for violations of police-department policy, the investigators found a loaded gun, without a serial number, in a nylon bag in the trunk of Little’s patrol car. Officer Randy Owens with the Huntsville Police Department testified that the gun was in the left quarter panel of the trunk of the patrol car, but it did not appear to be hidden. In addition: hanging scales; digital scales; a boot knife; road flares, which are not issued by the police department; and a set of brass knuckles were found in Little’s patrol vehicle. Police also found several driver’s licenses and one credit card in Little’s police car, none of which belonged to Little.

Because the serial number on the gun had been removed, police department policy required the gun to be recorded on an evidence-custody sheet. The evidence-custody sheet and the gun, in accordance with police department policy, should have been turned into the records room and the property room, respectively. Regardless of whether charges were brought in relation to the gun, the Huntsville Police Department required that the incident be documented in an Alabama Uniform Incident Offense Report. However, law-enforcement officers were unable to locate an evidence-custody sheet pertaining to the weapon or an Alabama Uniform Incident Offense Report connected with the weapon.

Initially, Little told police investigators that the gun belonged to his grandfather and that he carried it for sentimental purposes. Later, Little recanted his statement and told the investigators that he recovered the weapon at the house on Calvary Street and that he failed to turn it in because he was afraid doing so would precipitate disciplinary action against himself and another officer.

On appeal, Little argues that the trial court erred in instructing the jury on the offense of possession of a firearm after the firearm had been altered in violation of § 13A-11-64, Ala.Code 1975. Specifically, Little argues that the trial court’s instruction that Little would be guilty if he “used” the weapon or “concealed” the weapon was erroneous.

Section ISA-11-64, Ala.Code 1975, provides:

“A person who either:
“(1) Changes, alters, removes, or obliterates the name of the maker, model, manufacturer’s number or other mark or identification of any firearm, or
“(2) Possesses, obtains, receives, sells, or uses a firearm after the maker, model, manufacturer’s number or other mark or identification has been changed, altered, removed, or obliterated, is guilty of a Class C felony.”

Little was charged in Count 2 of the indictment as follows:

“Count 2
“The Grand Jury of said County charge, that before the finding of this Indictment, WESLEY LITTLE, whose name is unknown to the Grand Jury other than as stated, did intentionally possess, obtain, receive, sell or use a firearm, to-wit: a .38 Smith & Wesson revolver, after the maker, model, manufacturer’s number or other mark or identification had been changed, altered, removed, or obliterated, in violation of Section 13A-11-64 of the CODE OF ALABAMA, against the peace and dignity of the State of Alabama.”

(C. 6.)

In State v. Self, 492 So.2d 319 (Ala.Crim.App.1986), this Court held that the legislature did not intend for § 13A-11-64 to be a strict-liability statute and interpreted the statute as follows:

“[W]e believe a criminal intent should be incorporated into § 13A-11-64 because the modern trend among other non-federal enactments on the subject is to require some type of mens rea .... [W]e believe the degree of culpability required for the commission of an offense under § 13A-11-64(1) should comport with the statutory purpose, i.e., that a person who
“ ‘(1) willfully, changes, alters, removes, or obliterates the name of the maker, model, manufacturer’s number or other mark or identification of any firearm, with intent to conceal or misrepresent the identity of the firearm’
“is guilty of a Class C felony.
“Similarly because the goal of § 13A-11-64(2) is to prohibit the criminal possession, etc., of a firearm whose identifying marks have been obliterated, and because this objective is equivalent to the purpose of the VIN falsification provisions of § 32-8-86, we believe the mental state required for criminal possession, etc., should reflect the statute’s goal, ie., that a person who
“ ‘(2) possesses, obtains, receives, sells, or uses a firearm with knowledge that the maker, model, manufacturer’s number or other mark or identification has been changed, altered, removed or obliterated and with intent to conceal or misrepresent the identity of the firearm’
“is guilty of a Class C felony.”

State v. Self, 492 So.2d at 323.

At the close of all the evidence, the trial court charged the jury three times. Before the trial court recharged the jury for the third and final time, the trial court conducted a pre-charge conference. The trial court stated:

“THE COURT: If a person innocently possesses this firearm they’re not guilty of this offense.
“If they come into possession of the firearm and they have no unlawful intent to use this firearm, they’re not guilty of this offense.
“If they possess this firearm and they have the intent to use it, conceal it, misrepresent it, do something unlawful with it, then they’re guilty of this offense.
“MR. GLADDEN [defense counsel]: But what this is saying is intent to conceal or misrepresent the identity.
“THE COURT: All right.
“MR. GLADDEN: And the way that is going to read is to conceal a weapon.
“THE COURT: Right.
“THE COURT: And that’s what I said just a moment ago. That’s why I think that, first of all, this is not a statutory interpretation. This case attempts to set forth the legislative intent as it relates to the statute, never went any further than the Court of Criminal Appeals.
“The cases that have been presented to the appellate courts are such that a definition of this nature would be acceptable in that someone is robbing a convenience store or using the firearm in a homicide and there’s a question about the use of that firearm.
“There are no cases that are fact specific as what we have....
“THE COURT: So I’m not — I really want to make certain and have given great thought to not commenting on the evidence, but I think that they need to understand.
“We can’t crack open any defendant’s head to determine what his intent was. They have to decide that from the evidence. And if his intent was innocent or accidental or not unlawful he’s not guilty. But if his intent was to use it, conceal it, misrepresent it or use it for an unlawful purpose, and they believe that beyond a reasonable doubt, then he’s committed this offense. And I’ll hear you out but—
“MR. GLADDEN: No. That’s— when you say ‘use it, conceal it,’ that’s not what this case, [State v.] Self [492 So.2d 319 (Ala.Crim.App.1986),] case says. It says, conceal the identity, not conceal the gun. Okay.
“And what I am saying is that by giving them a recharge in the manner that I see that it looks like it’s going to be coming, it’s going to sound like that if it were in his trunk and out of sight it would be concealed; therefore, he’s guilty.
“THE COURT: If it’s in his trunk and he intends — and it wasn’t there accidentally or innocently. His testimony was he knew it was there, he just didn’t know what to do with it.
“MR. GLADDEN: Right.
“THE COURT: Okay. If he believes — if they believe that, if they believe it was there for an innocent purpose, I think we’re all in agreement, that he’s not guilty of this offense. Do you concede that?
“MR. RIZZARDI [prosecutor]: I concede that. But, Judge, in my closing argument, I still believe that—
“THE COURT: But if they believe that it was there for some other purpose.
“THE COURT: Okay. No doubt. Okay. I’m going to make — I’m going to give my charge then you can make your exceptions for the record.”

(R. 569-573.)

After the charge conference, the trial court charged the jury as follows:

“In order for a person to be guilty of possession of an altered firearm there are two elements. The first one the Defense concedes, no doubt about it. Okay. But I’ll go over it with you again.
“A person commits the offense of possession of an altered firearm, element number one, if he possesses, obtains, receives, sells or uses a firearm with knowledge that the make, model, manufacturer’s number or other mark or identification has been changed, altered, removed or obliterated.
“Conceded in this case. That element’s proven. Okay. No issue with that.
“The second element is what we’ve been discussing. Okay. The second element is this — in order for the State to convict they must prove the first element, which is conceded, and the second element beyond a reasonable doubt. And the second element is this: that the person possessed this altered firearm with the intent to use it, conceal it, or misrepresent the identity of the firearm.
“Conceal means to hide or keep a secret from.
“Misrepresent means to give a false or misleading representation of.
“To use it or to conceal it or misrepresent the identity of the firearm.
“Now, I can’t help you with the facts. I can only instruct you as to the law. We talked before about the fact that a person’s — you cannot crack open a person’s head and determine what their intent was. That intent, in sum and substance, is a state of mind, a state of mental purpose, and is usually incapable of direct proof. Intent may be inferred from attendant circumstances as you find them to be from the evidence.
“If you find that [Little] innocently or accidentally possessed this firearm then you do not find the intent to conceal or misrepresent the identity of the firearm or use the firearm then the [Little] is not guilty.
“If you find and are convinced beyond a reasonable doubt by the evidence that [Little] had the intent to use or conceal or misrepresent the identity of the firearm and you are convinced beyond a reasonable doubt, then it would be your duty to convict [Little] of this offense, possession of an altered firearm.”

(R. 577-580.)(Emphasis added.)

It is well settled that

“ ‘ “[a] trial court has broad discretion in formulating its jury instructions, provided] those instructions accurately reflect the law and the facts of the case. Raper v. State, 584 So.2d 544 (Ala.Cr.App.1991). We do not review a jury instruction in isolation, but must consider the instruction as a whole, Stewart v. State, 601 So.2d 491 (Ala.Cr.App.1992), aff'd in relevant part, 659 So.2d 122 (Ala.1993), and we must evaluate instructions like a reasonable juror may have interpreted them. Francis v. Franklin, 471 U.S. 307, 105 S.Ct. 1965, 85 L.Ed.2d 344 (1985); Stewart v. State.”
“Griffin v. State, 790 So.2d 267, 332 (Ala.Crim.App.1999), quoting Ingram v. State, 779 So.2d 1225, 1258 (Ala.Crim.App.1999). ‘This court has consistently held that a trial court’s oral charge to the jury must be viewed in its entirety and not in “bits and pieces.” Parks v. State, 565 So.2d 1265 (Ala.Cr.App.1990); Williams v. State, 538 So.2d 1250 (Ala.Cr.App.1988); Lambeth v. State, 380 So.2d 923 (Ala.), on remand, 380 So.2d 925 (Ala.Cr.App.1979), writ denied, 380 So.2d 926 (Ala.1980).’ Smith v. State, 585 So.2d 223, 225 (Ala.Crim.App.1991).”

Smith v. State, 908 So.2d 273, 295 (Ala.Crim.App.2000).

However, the trial judge incorrectly instructed the jury in this case. Under the formulation set out in State v. Self, the State was required to prove that Little’s possession or use of the weapon was with the intent to misrepresent the identity of the firearm. The State did not have to prove that Little intended to use or to conceal the weapon.

The trial court’s charge did not include this element and separated the use or concealment of the weapon from the intent to misrepresent the identity of the firearm in that use or concealment. Thus, the jury could have convicted Little on proof that he concealed the firearm without considering whether he had the intent to misrepresent the identity of the firearm when he concealed it.

In addition, the trial court instructed the jury that concealment of the firearm was one of the actions prohibited by the statute. The statute forbids one who “possesses, obtains, receives, sells, or uses a firearm” which has had its identity altered. The legislature did not prohibit the concealment of such a firearm.

Because State v. Self set out the elements of this offense, the trial judge should have used that formulation in her charge to the jury. This charge would be followed by the pattern-jury-charge definitions of “knowingly” and “intent.”

For the reasons set forth above, the judgment of the trial court is due to be reversed and this cause remanded for a new trial.

APPLICATION OVERRULED; OPINION OF JUNE 25, 2010, WITHDRAWN; OPINION SUBSTITUTED; REVERSED AND REMANDED.

WISE, P.J., and WINDOM, KELLUM, and MAIN, JJ., concur.

      . Little preserved this argument for appellate review. (581-82.)


author: MORRIS, Judge.

text:
    STATE of Florida, Appellant, v. Matthew Wilson McNEAL, Appellee.
    No. 2D08-5768.
    District Court of Appeal of Florida, Second District.
    June 4, 2010.
    Bill McCollum, Attorney General, Tallahassee, and Susan M. Shanahan, Assistant Attorney General, Tampa, for Appellant.
    Chris M. Pratt, Palmetto, for Appellee.
   MORRIS, Judge.

The State appeals an order granting Matthew Wilson McNeal’s motion to suppress. We affirm based on this court’s holding in Matheson v. State, 870 So.2d 8, 14-15 (Fla. 2d DCA 2003), that “the fact that a dog has been trained and certified, standing alone, is insufficient to give officers probable cause to search based on the dog’s alert” and that when making a determination of a dog’s reliability, a trial court must consider several other factors with a particular emphasis placed on the dog’s past performance in the field. However, we previously recognized in both Tedder v. State, 18 So.3d 1052 (Fla. 2d DCA 2008), and Gibson v. State, 968 So.2d 631 (Fla. 2d DCA 2007), that this court’s reasoning in Matheson has been rejected by the Fifth District Court of Appeal in State v. Coleman, 911 So.2d 259 (Fla. 5th DCA 2005), and the Fourth District Court of Appeal in State v. Laveroni, 910 So.2d 333 (Fla. 4th DCA 2005). Therefore, as we did in Ted-der and Gibson, we certify direct conflict with Coleman and Laveroni.

Affirmed; conflict certified.

CASANUEVA, C.J., and CRENSHAW, J., Concur.

      . In Harris v. State, 989 So.2d 1214 (Fla. 1st DCA 2008), the First District Court of Appeal affirmed without opinion, while citing to both Coleman and Laveroni. Although the court did not certify conflict, it did acknowledge that Gibson and Matheson stand for an opposing proposition. Harris, 989 So.2d at 1214.


author: GERBER, J. WARNER, J., PER CURIAM. WARNER, J.,

text:
    Calvin Earl SUGGS, Jr., Appellant, v. STATE of Florida, Appellee.
    No. 4D08-2913.
    District Court of Appeal of Florida, Fourth District.
    May 25, 2011.
    Opinion Denying Rehearing En Banc Oct. 12, 2011.

      Carey Haughwout, Public Defender, and John Pauly, Assistant Public Defender, West Palm Beach, for appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Daniel P. Hyndman, Assistant Attorney General, West Palm Beach, for appellee.
   GERBER, J.

A jury convicted the defendant of four counts of “written threat to kill or do bodily injury” for sending two letters, each of which threatened the same two persons. The defendant argues that his convictions violate the double jeopardy clause. More specifically, he argues that the “allowable unit of prosecution” for the charge should be the number of letters or communications sent, and not the number of people to whom each letter or communication is sent. We disagree. We hold that the allowable unit of prosecution is the number of persons to whom each letter or communication is sent, and not the number of letters or communications sent. Therefore, we affirm.

The defendant sent the two letters to Karen Robertson and Hope Suggs. Karen has legal custody of all five of the defendant’s sons. Hope is the defendant’s ex-wife and the mother of four of the defendant’s sons. Hope lives part-time with Karen. Both letters contained statements which could be interpreted as threats to kill or do bodily injury to Karen and Hope.

Based on the letters, the state charged the defendant with violating section 836.10, Florida Statutes (2004), entitled “Written threats to kill or do bodily injury; punishment.” That statute provides, in pertinent part:

If any person writes or composes and also sends or procures the sending of any letter or inscribed communication, so written or composed, whether such letter or communication be signed or anonymous, to any person, containing a threat to kill or to do bodily injury to the person to whom such letter or communication is sent, or a threat to kill or do bodily injury to any member of the family of the person to whom such letter or communication is sent, the person so writing or composing and so sending or procuring the sending of such letter or communication, shall be guilty of a felony of the second degree....

§ 836.10, Fla. Stat. (2004). As noted in State v. Wise, 664 So.2d 1028, 1030 (Fla. 2d DCA 1995), “[a] violation of this statute occurs when: (1) a person writes or composes a threat to kill or do bodily injury; (2) the person sends or procures the sending of that communication to another person; and (3) the threat is to the recipient of the communication or a member of his family.” (citation omitted).

Although the defendant sent only two letters, the state charged the defendant’s alleged violation of section 836.10 in four counts: sending the first letter to Karen; sending the first letter to Hope; sending the second letter to Karen; and sending the second letter to Hope.

The jury found the defendant guilty of all four counts. This appeal followed, raising the double jeopardy argument for the first time. We have jurisdiction to consider the argument. See Lotos v. State, 39 So.3d 511, 513 (Fla. 4th DCA 2010) (“A double jeopardy violation ‘is a fundamental error which can be raised for the first time on appeal.’ ”) (citation omitted). Our review is de novo. See id. (“ ‘Determining whether double jeopardy is violated based on undisputed facts is a purely legal determination, so the standard of review is de novo.’ ”) (citation omitted).

The defendant argues that his convictions violate the double jeopardy clause because, in his view, the allowable unit of prosecution for a violation of section 836.10 should be the number of letters or communications sent, and not the number of people to whom each letter or communication is sent. To support this argument, the defendant relies on the “a/any” test which our supreme court approved in Grappin v. State, 450 So.2d 480 (Fla.1984). There, the court considered whether the unlawful taking of two or more firearms during the same criminal episode was subject to separate prosecution as to each firearm under section 812.014(2)(b)3., Florida Statutes (1981). Id. at 481. Under that statute, “[i]t is grand theft ... if the property stolen is ... [a] firearm.” The court found that the use of the article “a” in reference to “a firearm” in section 812.014(2)(b)3. “clearly shows that the legislature intended to make each firearm a separate unit of prosecution.” Id. at 482. The court further found that its construction was consistent with federal court decisions holding that the term “any firearm” is “ambiguous with respect to the unit of prosecution and ... must be treated as a single offense.” Id. (emphasis added).

The defendant, applying Grappin to this case, argues that the legislature’s use of the terms “any letter” and “any person” in section 836.10 indicates the legislature’s intent that the allowable unit of prosecution for a violation of section 836.10 should be the number of letters or communications sent, and not the number of people to whom each letter or communication is sent. The defendant further argues that the legislature’s use of the word “any” creates at least an ambiguity which, based on the rule of lenity, must be resolved in his favor. See id. (“If the Congress does not fix the punishment for federal offenses clearly and without ambiguity ... then the rule of lenity applies and the ambiguity is to be resolved against turning a single transaction into multiple offenses.”) (citing Bell v. United States, 349 U.S. 81, 82, 75 S.Ct. 620, 99 L.Ed. 905 (1955)).

In response, the state argues that the defendant’s reliance on Grappin’s “a/any” test is misplaced in light of the supreme court’s more recent opinion in Bautista v. State, 863 So.2d 1180 (Fla.2003). In Bau-tista, the court considered whether the occurrence of multiple deaths in a single DUI-related crash allowed for multiple convictions for DUI manslaughter under section 316.193(3)(c)3., Florida Statutes (2002). Id. at 1181. Under that statute, a person commits DUI manslaughter if the person, by reason of driving under the influence, “causes or contributes to causing ... the death of any human being.” § 316.193(3)(c)3., Fla. Stat. (2002) (emphasis added). The court held that Grappin’s “a/any” test did not preclude multiple convictions under section 316.193(3)(c)3. Bautista, 863 So.2d at 1188. The court reasoned:

[The defendant’s] argument based on the a/any test succeeds only if we were to apply the test as a simple syntactical rule in isolation from the context in which the test arose. However, it would be improper to so isolate this distinction .... [T]he a/any distinction was used in Grappin as one part of a common sense application of well-established rules of statutory interpretation, including reference to the overall statutory scheme and purpose as well as to related cases. Within this context, the a/any test is a valid linguistic tool that is helpful in establishing the Legislature’s intended unit of prosecution. However, the a/any test is not an infallible or exclusive indicator of legislative intent. Rather, absent clear legislative intent to the contrary, the a/any test serves as a valuable but nonexclusive means to assist courts in determining the intended unit of prosecution.
... Grappin and its progeny should not be interpreted to suggest that the intended unit of prosecution is automatically rendered ambiguous whenever a statute uses the word “any.” ... The a/any test should not be applied to create an ambiguity where none exists and then to reach a result contrary to clear legislative intent.

Id. at 1187-88 (footnotes omitted).

We find that the reasoning in Bau-tista applies to this case. “In attempting to discern legislative intent, we first look to the actual language used in the statute.” Id. at 1185. Here, the actual language of the statute proscribes communications “containing a threat to kill or do bodily injury to the person to whom such letter or communication is sent, or a threat to kill or do bodily injury to any member of the family of the person to whom such letter or communication is sent.” § 886.10, Fla. Stat. (2004) (emphasis added). In our view, the statute’s plain focus is on “the person” to whom such letter or communication is sent. Accord Smith v. State, 532 So.2d 50, 52 (Fla. 2d DCA 1988) (the proscription which section 836.10 communicates is “not difficult to divine.... Section 836.10 is justified by the right of all persons to live free of unexpected and unwarranted fear of harm”). Thus, we hold that, under section 836.10, the unit of allowable prosecution is determined by the number of persons to whom a letter or communication is sent, and not the number of letters or communications sent. In short, the statute is not ambiguous and the rule of lenity does not apply in this situation.

Our decision is consistent with our recent holding in Mauldin. There, the defendant pointed a BB gun at two people and threatened to “cap them.” 9 So.3d at 26. He was convicted of two counts of aggravated assault with a deadly weapon and ultimately was sentenced to consecutive sentences on those counts. Id. He later argued that the multiple convictions and consecutive sentences violated double jeopardy. Id. at 27. We held that the multiple convictions and consecutive sentences were permissible. Id. at 28. We reasoned:

It is clear from the assault statute that the legislature intended to punish the criminal defendant separately for each victim the defendant placed in fear by his or her threat. The assault statute define[s] the offense as: ‘[A]n intentional, unlawful threat by word or act to do violence to the person of another, coupled with an apparent ability to do so, and doing some act which creates a well-founded fear in such person that such violence is imminent.’ § 784.011(1), Fla. Stat. (2002). An element of assault is the placing in fear of a ‘person,’ and the statute criminalizes unlawful threats to ‘the person of another.’ Where multiple persons are placed in well-founded fear of imminent violence by a single threat, and the elements of the offense are otherwise satisfied, multiple convictions are permissible.

Id. Although the statute at issue here does not include “a well-founded fear” as an element, our focus in Mauldin was not on that element. Rather, we focused on the number of persons to whom a threat was communicated. Our focus today remains the same.

To base the unit of allowable prosecution on the number of letters or communications sent would not only fail to comport with the actual language of the statute and our own precedent, but also would lead to nonsensical results. For example, if the defendant in this case communicated all of his threats to Karen in the first letter and all of his threats to Hope in the second letter, then such actions would constitute two counts according to the defendant’s argument. But if the defendant merely decided to save the cost of a stamp and communicated all of his threats to Karen and Hope in one letter sent to their joint address, then such action would constitute only one count, even though the defendant’s intent — to place both Karen and Hope in fear of harm — remained the same. Such a nonsensical result cannot exist as a matter of law.

The dissent nevertheless argues that the statute punishes based on the number of letters sent and not the number of persons threatened in the letter. In support of that argument, the dissent relies on 18 U.S.C. § 876(b) (2004), which is the federal statute on mailing threatening communications with the intent to extort money. The federal statute provides:

Whoever, with intent to extort from any person any money or other thing of value, so deposits, or causes to be delivered, as aforesaid, any communication containing any threat to kidnap any person or any threat to injure the person of the addressee or of another, shall be fined under this title or imprisoned not more than twenty years, or both.

The federal statute, however, contains only two elements: “(1) a threatening communication (2) sent through the mails.” United States v. Geisler, 143 F.3d 1070, 1071-72 (7th Cir.1998). Neither of those elements refers to the person to whom such letter or communication is sent. Section 836.10, on the other hand, contains three elements, the second and third of which refer to the person to whom such letter or communication is sent. See Wise, 664 So.2d at 1030. Those references support our conclusion that section 836.10 punishes based on the number of persons to whom the letter or communication is sent and not the number of letters sent.

The dissent also focuses on the fact that, with regard to the two letters involved in this case, the defendant addressed one letter to Karen and the other letter to Hope. According to the dissent, that fact is significant because section 836.10 does not punish the defendant for sending a letter to Karen threatening Hope and vice versa. As the dissent notes, however, the defendant has not raised an insufficiency of the evidence argument in this appeal. Thus, for our purposes, it is insignificant that the defendant addressed one letter to Karen and the other letter to Hope. Instead, based on the jury’s verdict, we are required to accept the state’s charges that the defendant sent both letters to Karen and Hope. As a result, we are compelled to affirm.

Affirmed.

STEVENSON, J., concurs.

WARNER, J., dissents with an opinion.

WARNER, J.,

dissenting.

I dissent. The statute punishes the sending of the letter, not the number of persons threatened in the letter. Therefore, two of the four convictions violate double jeopardy.

For purposes of this dissent, I have edited the statute to include only the operative portions of section 836.10, Florida Statutes (2004), applicable to this case:

If a person writes ... and also sends ... any letter ... to any person, containing a threat to kill or to do bodily injury to the person to whom such letter ... is sent, or a threat to kill or do bodily injury to any member of the family of the person to whom such letter ... is sent, the person so writing ... and so sending ... of such letter, shall be guilty of a felony of the second degree ....

As noted in State v. Wise, 664 So.2d 1028, 1030 (Fla. 2d DCA 1995), a violation of this statute occurs when: (1) a person writes or composes a threat to kill or do bodily injury; (2) the person sends or procures the sending of that communication to another person; and (3) the threat is to the recipient of the communication or a member of his family. The act of sending the letter is the prosecutable offense. Wise involved the issue of venue for the prosecution of the offense, and the court explained that the act of sending for venue purposes can include where the letter was received. In a footnote, however, the court noted: “This is not to say that prosecution would not be appropriate in a case in which a threatening letter was mailed but not received by the intended recipient.” In other words, the court did not decide that receipt of the letter was an essential element of the offense.

Section 836.10, Florida Statutes is similar to 18 U.S.C. § 876(b) involving the mailing of threatening communications. The federal statute requires an intent not present in the Florida statute but also punishes the sending of a communication containing a threat to injure the addressee:

Whoever, with intent to extort from any person any money or other thing of value, so deposits, or causes to be delivered, as aforesaid, any communication containing any threat to kidnap any person or any threat to injure the person of the addressee or of another, shall be fined under this title or imprisoned not more than twenty years, or both,

(emphasis added). The crime contains only two elements: “(1) a threatening communication (2) sent through the mails.” See United States v. Geisler, 143 F.3d 1070, 1071-72 (7th Cir.1998). Federal cases suggest that the unit of prosecution is the letter, not the number of people to whom it is addressed nor the number of people threatened in the letter. For instance, in United States v. Lincoln, 589 F.2d 379 (8th Cir.1979), the defendant sent two letters which were addressed to the Clerk of Court of the U.S. Court of Appeals for the Eighth Circuit, and each letter made threats against all of the judges of the Eighth Circuit. The defendant was charged and convicted for only two offenses, namely one for each letter sent. In United States v. Chapman, 440 F.Supp. 1269 (E.D.Wis.1977), a letter addressed to two individuals and threatening both of them was treated as one violation of the statute. Mailing the letter, not writing it or its contents, is the “gravamen of the offense.” Bender v. United States, 387 F.2d 628, 630 (1st Cir.1967).

Grappin v. State, 450 So.2d 480 (Fla.1984), is more on point to this case than Bautista v. State, 863 So.2d 1180 (Fla.2003), relied on by the majority. In Grap-pin, the defendant stole five firearms during a single burglary and was charged with five separate offenses of grand theft. The statute imposed punishment for the theft of “a firearm.” The court determined that by use of “a,” the legislature determined that the theft of each firearm was a separate unit of prosecution. However, it noted that federal courts had construed the prohibition of the theft of “any firearm ” as being ambiguous to the unit of prosecution, thus requiring the application of the rule of lenity, precluding multiple charges for the theft of multiple firearms in a single theft.

In the same way, section 836.10 prohibits the sending of any letter. Just like the theft of any firearm, the unit of prosecution is ambiguous. Therefore, based upon the principle of lenity, the unit of prosecution must be the letter sent, not the number of persons to whom that one letter is sent.

The majority cites Bautista v. State, 863 So.2d 1180 (Fla.2003), as authority for its position. However, Bautista notes that “absent clear legislative intent to the contrary, the a/any test serves as a valuable but nonexclusive means to assist in determining the intended unit of prosecution.” Id. at 1188 (emphasis added). In Bautis-ta, the court found clear legislative intent to permit DUI manslaughter prosecutions based upon the number of deaths arising from a single incident. Bautista concluded that the Legislature intended to punish each death occurring in a DUI manslaughter, relying on the fact that homicide statutes punish each death, and that the original manslaughter statutes punished the killing of “a” human being. Thus, Bautis-ta was based on an account of legislative history of manslaughter.

On the other hand, the Bautista court also noted its prior decision in Wallace v. State, 724 So.2d 1176 (Fla.1998), where the court held that a defendant who resisted two officers during a single incident could be charged with only one crime because the statute prohibited resisting “any” officer. Relying on the principle of lenity, Wallace concluded that the Grappin analysis should apply.

In this case, the majority cannot cite any legislative history or clear intent to justify its result. There is none. The majority concludes that the focus of section 836.10 is the threat to the person to whom a communication is sent. But Wise, as well as a comparison of the similar federal statute, show that the focus is the sending of a letter, not its receipt and the striking of fear in the mind of the recipient.

Mauldin v. State, 9 So.3d 25 (Fla. 4th DCA 2009), cited by the majority, is also inapplicable, because the unit of prosecution under the assault statute is a single person. See § 784.011(1), Fla. Stat. (“[A]n intentional, unlawful threat ... to do violence to the person ... which creates a well-founded fear in such ... person that violence is imminent.”) (emphasis added). An essential element of the offense is the victim’s well-founded fear of violence. See Johnson v. State, 888 So.2d 691 (Fla. 4th DCA 2004). Therefore, the statute focuses on the effect of the perpetrator’s acts on the victim. In contrast, section 836.10 does not require any effect on the victim as an essential element of the crime. Neither the actual intent to do harm, nor the ability to carry out the harm threatened, is an essential element of the crime. See Smith v. State, 532 So.2d 50, 52 (Fla. 2d DCA 1988). The focus of the statute is on the sending of the communication.

The issue of the unit of prosecution renders the statute ambiguous. Where a criminal statute is ambiguous, the rule of lenity applies, and the statute must be construed most favorably to the accused. See Kasischke v. State, 991 So.2d 803, 814 (Fla.2008). This rule has been applied to ambiguity involving statutes where the court must use the a/any test to determine the unit of prosecution. See Francis v. State, 41 So.3d 975 (Fla. 5th DCA 2010) (involving convictions for possession of firearms by a convicted felon). The majority has not pointed to clear legislative intent, other than the ambiguous language of the statute itself, to support its position.

Moreover, even under the majority’s opinion, the four convictions violate double jeopardy. The majority holds that the allowable unit of prosecution is the number of persons to whom the letter is sent. The defendant sent two letters in this case, but each was addressed to only one person. One was addressed to Karen Robertson. The other was addressed to Hope Suggs. In each, the defendant rambled about his difficulties with each woman and his children. He made threats against both Hope and Karen in each letter, but again each letter was sent to only one person. Therefore, even under the majority’s analysis, only two convictions should result from the sending of these letters.

Furthermore, although not raised by appellant in his brief (even though the issue was raised at trial), the statute does not punish appellant for sending a letter to Hope threatening Karen and vice versa. Karen and Hope are not related, so they are not a “member of the family” of the other. Therefore, even if the letter to Hope did threaten Karen, it is not a violation of the statute.

For all of these reasons, I would reverse, remand, and instruct the trial court to vacate two of the four convictions for violating section 836.10.

On Motion fob Rehearing En Banc

PER CURIAM.

The motion for rehearing en banc is hereby denied.

STEVENSON and GERBER, JJ., concur.

WARNER, J., concurs specially.

WARNER, J.,

concurring specially.

I concur in the denial of the request for rehearing en banc by the appellant. He suggests that the majority decision in this case conflicts with Cruz v. State, 956 So.2d 1279, 1282 n. 4 (Fla. 4th DCA 2007), where in a footnote we said, quoting State v. Mitchell, 719 So.2d 1245, 1248 (Fla. 1st DCA 1998):

The GrappinfWatts test is drawn from two decisions, Grappin v. State, 450 So.2d 480 (Fla.1984), and State v. Watts, 462 So.2d 813 (Fla.1985), and stands
for the proposition that when a question arises regarding the unit of prosecution intended by the legislature in a particular criminal statute, use of the article ‘a’ will result in the conclusion that the legislature clearly intended that the commission of multiple proscribed acts in the course of a single episode be prosecuted as discrete offenses; whereas use of the article ‘any1 will result in the conclusion that the statute is ambiguous as to legislative intent and, as a result, in application of the rule of lenity to prohibit more than one application.

Cruz, however, is factually distinguishable and did not consider Bautista v. State, 863 So.2d 1180 (Fla.2003), upon which the majority relies.

I think the majority opinion conflicts with Grappin and Bautista. But it is not the purpose of en banc proceedings to resolve conflicts between our cases and cases from the supreme court. That is for the supreme court under its discretionary jurisdiction, should it determine that a true conflict exists. See Fla. R.App. P. 9.030(a)(2)(A)(iv). This case, however, reveals how Bautista has muddied the waters of statutory interpretation on the unit of prosecution, after Grappin had developed a clear and understandable rule which both the courts and the legislature could follow.

      . See U.S. Const., Amend. V ("No person shall be ... subject for the same offence to be twice put in jeopardy of life or limb.”).

      . The "allowable unit of prosecution” is "the aspect of criminal activity that the Legislature intended to punish.” Mauldin v. State, 9 So.3d 25, 28 (Fla. 4th DCA 2009) (citation omitted). "Double jeopardy is not violated if the legislature intended separate punishments.” Id.

      . In 2010, the legislature amended section 836.10 as follows:
      if-aAny person who writes or composes and also sends or procures the sending of any letter, er inscribed communication, so written-or-oomposed or electronic communication, whether such letter or communication be signed or anonymous, to any person, containing a threat to kill or to do bodily injury to the person to whom such letter or communication is sent, or a threat to kill or do bodily injury to any member of the family of the person to whom such letter or communication is sent, the-person-so-writing or composmg-and-so-sending or procuring the sending -of-such letter or communi-eation, shall be guilty of commits a felony of the second degree....
      Ch. 2010-51, § 1, Laws of Fla.

      . That portion of the statute now is found at section 812.014(2)(c)5., Florida Statutes (2010).

      . The jury also convicted the defendant of two counts of aggravated stalking based on the letters. The defendant has not challenged those convictions in this appeal either.


author: PER CURIAM.

text:
    Eugenio SPITALIERI, Appellant, v. STATE of Florida, Appellee.
    No. 5D10-232.
    District Court of Appeal of Florida, Fifth District.
    July 8, 2011.
    Rehearing Denied Aug. 17, 2011.
    Terrence E. Kehoe, of Law Offices of Terrence E. Kehoe, Orlando, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Kristen L. Davenport, Assistant Attorney General, Daytona Beach, for Appellee.
   PER CURIAM.

We affirm Eugenio Spitalieri’s convictions of two counts of manslaughter with a firearm and the consecutive fifteen-year sentences imposed as a consequence. See Contreras-Mayahua v. State, 40 So.3d 861 (Fla. 4th DCA 2010).

We accept the State’s concession of error regarding Spitalieri’s motion to correct his sentence filed pursuant to Florida Rule of Criminal Procedure 3.800(b). The State concedes that Spitalieri is entitled to 586 days of credit for time served instead of the 583 days that the court awarded. The State further concedes that the $1 First Step and $30 drug testing costs must be stricken as they are discretionary costs and were not orally pronounced. See State v. Williams, 712 So.2d 762 (Fla.1998). For the same reason, the $250 fine imposed under section 775.083(1), Florida Statutes (2010), shall be stricken. See Dadds v. State, 946 So.2d 1129 (Fla. 2d DCA 2006). On remand, Spitalieri’s sentencing documents shall be corrected. No resentencing is necessary.

Convictions AFFIRMED; REMANDED for Correction of Sentence.

ORFINGER, C.J., GRIFFIN and COHEN, JJ., concur.

      . Had the State not agreed both below and on appeal to strike the costs and fines not orally pronounced at sentencing, the outcome may have been different. See Velez-Pizzini v. State, 58 So.3d 278 (Fla. 5th DCA 2011); Grabb v. State, 922 So.2d 1002 (Fla. 5th DCA 2006).