author: PITTMAN, Judge.

text:
    Ex parte SIEMAG, INC. and Ex parte Sandvik Mining and Construction USA, LLC (In re Prince U. Hagler, Jr., et al. v. Jim Walter Resources, Inc., et al.).
    2090016 and 2090134.
    Court of Civil Appeals of Alabama.
    June 18, 2010.

      James B. Carlson and Christopher S. Berdy of Christian & Small LLP, Birmingham, for petitioner Siemag, Inc.
    James D. Newman and D. Andrew Sti-vender of Helmsing, Leach, Herlong, Newman & Rouse, P.C., Mobile, for petitioner Sandvik Mining and Construction USA, LLC.
    James C. King, Henry C. Wiley, Jr., and Justin L. Jones of King, Wiley & Williams, Jasper, for respondents Prince U. Hagler, Jr., and Catherine Hagler.
   PITTMAN, Judge.

Siemag, Inc. (“Siemag”), and Sandvik Mining and Construction USA, LLC (“Sandvik”), each seek a writ of mandamus compelling the Walker Circuit Court to vacate an order denying their motions to transfer to the Tuscaloosa Circuit Court a civil action brought in May 2007 by Prince U. Hagler, Jr., and his wife, who are both Walker County residents, against Siemag, Sandvik, and a number of other named and fictitiously named defendants stemming from a workplace injury to Hagler resulting in the amputation of both of his arms, which injury allegedly arose out of and in the scope of his employment with Jim Walter Resources, Inc. (“Jim Walter”). For the reasons specified herein, we deny both petitions.

The plaintiffs’ complaint asserted a claim against Jim Walter under the Alabama Workers’ Compensation Act, Ala. Code 1975, § 25-5-1 et seq., as well as tort claims against individual and corporate third parties who were allegedly also responsible for Hagler’s injuries. Hagler and his wife alleged in the complaint that venue was proper in Walker County because, among other things, (a) two individual defendants who were co-employees of Hagler, Ken Russell and David Hicks, were Walker 'County residents; and (b) the plaintiffs resided in Walker County and all the corporate defendants did business by agent in Walker County. Jim Walter filed a motion to sever the workers’ compensation claim from the action and filed a motion to dismiss or, in the alternative, to transfer the action to the Tuscaloosa Circuit Court, asserting that the plaintiffs’ claims arose in Tuscaloosa County and that Jim Walter did no business by agent in Walker County. Other corporate defendants, including Siemag and Sandvik, thereafter filed motions to transfer the action to the Tuscaloosa Circuit Court on the grounds that Walker County was either an improper or an inconvenient forum. The plaintiffs filed a unified response to the motions to sever, dismiss, and transfer, contending that the action should proceed in the Walker Circuit Court.

On July 31, 2009, the Walker Circuit Court entered an order in which that court concluded that Walker County was a proper venue under Ala.Code 1975, §§ 6-3-2 and 6-3-7, and that a transfer of the action to the Tuscaloosa Circuit Court was not warranted on the basis of the convenience of parties and witnesses or in the interest of justice. On September 11, 2009, 42 days after the entry of the Walker Circuit Court’s order (ie., within the presumptively reasonable time for seeking an extraordinary writ as set forth in Rule 21(a)(3), Ala. R.App. P.), Siemag filed a petition for a writ of mandamus in the Alabama Supreme Court challenging the correctness of the trial court’s order solely as it relates to the doctrine of forum non conveniens; the Alabama Supreme Court transferred Siemag’s petition to this court, where it was assigned case no. 2090016. On October 28, 2009, this court called for answers and briefs from Siemag and the respondents, which have been filed.

On November 2, 2009, 94 days after the entry of the Walker Circuit Court’s order (ie., well outside the presumptively reasonable time for seeking an extraordinary writ as set forth in Rule 21(a)(3), Ala. R.App. P.), Sandvik filed a mandamus petition in this court; after that petition was assigned case no. 2090134, this court, acting ex mero motu, consolidated that case with case no. 2090016. However, upon further review of the reasons offered by Sandvik for filing its petition outside the presumptively reasonable time (principally that it did not receive notice that Siemag had filed its mandamus petition until after the presumptively reasonable time for seeking review of the July 31, 2009, order had expired) does not state a sound basis for Sandvik’s having delayed in seeking mandamus review on its own behalf. Unlike Rule 4, Ala. R.App. P., which allows a party to take a cross-appeal from a final judgment or an appealable interlocutory order within 14 days after any other’s party’s timely filed notice of appeal, there is no mechanism in Rule 21 that would allow a respondent to file a “cross-petition” after the expiration of the presumptively reasonable time for seeking review by a petition for an extraordinary writ. For that reason, Sandvik’s petition in case no. 2090134 is denied as having been untimely filed. We thus proceed to consider the merits of Siemag’s petition.

“A petition for the writ of mandamus is the proper method by which to seek review of a denial of a motion for a change of venue. Ex parte Alabama Great Southern R.R., 788 So.2d 886 (Ala. 2000). ‘Mandamus is a drastic and extraordinary writ, to be issued only where there is (1) a clear legal right in the petitioner to the order sought; (2) an imperative duty upon the respondent to perform, accompanied by a refusal to do so; (3) the lack of another adequate remedy; and (4) properly invoked jurisdiction of the court.’ Ex parte Integon Corp., 672 So.2d 497, 499 (Ala.1995) [An appellate court] reviews a petition for a writ of mandamus challenging a ruling on venue under an abuse-of-discretion standard. Id.
“ ‘The burden of proving improper venue is on the party raising the issue and on review of an order transferring or refusing to transfer, a writ of mandamus will not be granted unless there is a clear showing of error on the part of the trial judge.’ ”
“Ex parte Finance America Corp., 507 So.2d 458, 460 (Ala.1987).”

Ex parte Scott Bridge Co., 834 So.2d 79, 80-81 (Ala.2002); accord Ex parte Cavalier Home Builders, L.L.C., 920 So.2d 1105, 1108 (Ala.Civ.App.2005). We further note that Ex parte Yocum, 963 So.2d 600 (Ala.2007), which also involved a challenge to a trial court’s denial of a motion to transfer a civil action to a forum that was purportedly more convenient, notes that: (a) “[t]he trial court should give deference to the plaintiffs choice of a proper forum”; and (b) the “ ‘burden is on the party moving for the transfer to prove that the transferee forum is significantly more convenient than the plaintiffs chosen forum.’” 963 So.2d at 602 (quoting Ex parte Nichols, 757 So.2d 374, 378 (Ala.1999)).

In its petition and briefs, Siemag posits that the convenience of parties and witnesses would be served by a transfer of the case from Walker County to Tuscaloosa County, citing the location of the mine where Hagler’s injury occurred and the relative remoteness of Walker County to air-transportation centers in Tuscaloosa and Birmingham. However, as Hagler and his wife point out in their brief, the prospect that any defendant’s witnesses or corporate representatives having knowledge of facts pertinent to the plaintiffs’ claims will be required to travel to Alabama by air is entirely speculative given the silence of the evidentiary record concerning the locations of those witnesses. Further, to the extent that any nonparty employees of the corporate defendants will be required to attend trial and to testify, any inconvenience to them “does not weigh heavily where ... their presence at trial can be secured by those defendants.” Ex parte Yocum, 963 So.2d at 602. Finally, we note that the plaintiffs filed several affidavits bearing on the convenience issue, including (a) Hagler’s own affidavit, in which he testified that because of the loss of his arms he will require automotive transportation by family members from his home in Sumiton and that travel to Tuscaloosa, a distance of 75 miles, will present a greater hardship than travel to Jasper, a distance of 15 miles; and (b) the affidavit of Victor Argo, a Jefferson County resident and an eyewitness to Hagler’s injury who testified that two individual defendants reside in Walker County and that it would be more convenient for him to attend a deposition and a trial in Walker County. Because the burden of demonstrating that Tuscaloosa County is significantly more convenient than the plaintiffs’ chosen forum of Walker County rests upon the shoulders of Siemag, see Yocum 963 So.2d at 602, and because Siemag has not carried that burden, we reject the contention that the convenience of parties or witnesses compels a transfer here.

We next turn to the “interest of justice” prong of § 6-3-21.1, Ala. Code 1975, which Siemag also invokes. Analysis of that prong requires consideration of “ ‘whether the “nexus” or “connection” between the plaintiffs action and the original forum is strong enough to warrant burdening the plaintiffs forum with the action.’ ” Ex parte Price, 47 So.3d 1221, 1225 (Ala.2010) (quoting Ex parte First Tennessee Bank Nat’l Ass’n, 994 So.2d 906, 911 (Ala.2008)). Stated another way, if a plaintiffs action has little, if any, connection to the chosen forum, it should be transferred in the interests of justice. See, e.g., Ex parte Verbena United Methodist Church, 953 So.2d 395, 400-01 (Ala.2006) (trial court acted outside its discretion in refusing to transfer action alleging defamation, invasion-of-privacy, and tort-of-outrage claims when only one of three defendants was domiciled in forum county, that defendant had received only one letter from the plaintiff demanding an investigation, and that defendant had agreed to the proposed transfer).

In this case, Hagler sustained injuries while working for Jim Walter in its # 4 mine, which is located near Brook-wood, a community in Tuscaloosa County; after the incident made the basis of the plaintiffs’ claims, representatives from the United States Mine Safety and Health Administration’s office in Birmingham traveled to the mine and conducted an investigation, resulting in the issuance of several administrative citations pertaining to the actions and omissions of Jim Walter and its employees at the # 4 mine during the pei’iod before Hagler’s injury. Citing those factors, Tuscaloosa County’s extensive mining activity, and Tuscaloosa County’s larger judge allocation and juror pools, Siemag contends that Tuscaloosa County has a strong interest in having the action adjudicated within its borders — so strong, Siemag says, that the trial court’s decision not to transfer the case was clear error.

However, at the time of Hagler’s injury and at the initiation of this action, both Hagler and his wife were residents of Walker County, a county with its own extensive history of mining coal. E.g., Drummond Co. v. Gunter, 588 So.2d 465, 466 (Ala.Civ.App.1991), and Thomason v. Mullinax, 403 So.2d 883, 885 (Ala.1981) (mentioning coal-mining operations on land in Walker County); Alabama Power Co. v. Cummings, 466 So.2d 99, 100 (Ala.1985) (noting site of Gorgas Mine, America # 3, in Walker County); and State v. Bankhead Mining Co., 279 Ala. 566, 568, 188 So.2d 527, 528 (1966) (“Bankhead Mining Company, Inc., has its principal] place of business in Walker County and is engaged exclusively in strip coal mining operations.”). This extensive history was noted by Dr. Robert Cox, an affiant whose testimony, in pertinent part, was quoted at length by the trial court in its order denying the motions to transfer:

“ Walker County is the heart of coal country in Alabama and coal mining is the primary industry in Walker County. Numerous coal miners live and work in Walker County and the United Mine Workers Union plays an important part in community affairs. Many of the miners commute to work in mines in surrounding counties such as Tuscaloosa County. The Walker County community has always had and should have, serious interest in coal mining safety.’ ”

Dr. Cox’s observations are borne out by the joinder by the plaintiffs of two individual co-employee defendants who undisput-edly reside in Walker County but commute to Tuscaloosa County to work in Jim Walter’s Brookwood mine. We further note that the trial court, in its order, took judicial notice that a large number of its case volume was, and historically had been, coal-mining-related cases, and it observed that it had “tried many coal-mine-related cases and [acquired] experience and knowledge of coal mining and its unique terminology.” It can properly be inferred that Walker County judges and jurors, no less than Tuscaloosa County judges and jurors, would likely be familiar with the work, machinery, and practices of the coal-mining industry.

The Legislature, for its part, has seen fit to declare in Ala.Code 1975, § 6-3-7(a), that civil actions against corporations “may be brought in any of the following counties” (emphasis added): (1) a county “in which a substantial part of the events or omissions giving rise to the claim occurred”; (2) the county of “the corporation’s principal office in this state”; or (3) the county where “the plaintiff resided ... at the time of the accrual of the cause of action, if [the] corporation does business by agent in the county of the plaintiffs residence.” Id. at § 6-3-7(a)(l)-(3). Likewise, under Ala.Code 1975, § 6-3-2(a)(3), claims for damages sounding in tort against an individual defendant may properly be commenced in the Alabama county where the defendant’s residence is located. As we have noted, Siemag has not challenged in its mandamus petition the trial court’s conclusion that Walker County is a proper venue under provision (3) given the presence in the action of the workers’ compensation claim against Jim Walter and the third-party tort claims against two Walker County residents, as well as the plaintiffs’ evidence tending to show that Jim Walter indeed does business by agent in Walker County. Although it is a valid principle of law that ordinarily “litigation should be handled in the forum where the injury occurred,” Ex parte Sawyer, 892 So.2d 898, 904 (Ala.2004), the Legislature clearly envisioned that persons in the plaintiffs’ situation would have the choice of bringing them action in the county of their residence.

As the trial court noted in its order, the defendants who sought transfer of the plaintiffs’ action to Tuscaloosa County were able to cite only two reported opinions in which an appellate court had concluded that the retention of a case in the county of a plaintiffs residence was outside the discretion of the trial court — Ex parte New England Mut. Life Ins. Co., 663 So.2d 952 (Ala.1995), and Ex parte Kane, 989 So.2d 509 (Ala.2008). Like the trial court, we conclude that both cases are distinguishable.

In New England Life, which was decided when § 6-3-7 provided that any personal-injury actions against corporations could be brought in the county of the plaintiffs residence at the time of suit if the corporation did business by agent there, the fraudulent misrepresentations made to the plaintiff were allegedly uttered several years earlier, in the county where the plaintiff resided at that time, but the plaintiff subsequently moved to a second county where he filed suit. In New England Life, all pertinent documents were located in the first county, all the expected trial witnesses (except for the plaintiff) were located in the first county, and 10 separate actions involving different plaintiffs alleging the same wrongful conduct had been filed in the first county by the same plaintiffs’ attorneys. 663 So.2d at 956. Similarly, in Kane, the evidence showed that the alleged acts, omissions, and injuries forming the basis of the plaintiffs personal-injury claim all occurred in a county other than that of the plaintiffs residence and there was a pending “related action involving the same incident and the same witnesses” in the county to where the defendants had sought a transfer under § 6-3-21.1; further, the plaintiff in Kane filed no evidentiary response controverting the defendants’ transfer motions. 989 So.2d at 511, 513.

Unlike in New England Life and Kane, however, there is in this case no current prospect of burdensome parallel civil litigation in another county involving the same defendants and witnesses that would warrant trumping the plaintiffs’ choice of venue in their county of residence. In addition, we note the opinion testimony of Dr. Scottie L. Twilley, Hagler’s treating physician, to the effect that because of Hagler’s numerous medical conditions (which include diabetes, hypertension, back and neck pain, and chronic obstructive pulmonary disease in addition to his amputations), “it would be far more ... medically appropriate for Mr. Hagler to attend court in Jasper, Walker County, which is much closer to his residence” and that “it would be in his medical best interest to minimize travel and attend court as close to his residence as possible.” There is no corresponding indication in New England Life or Kane that the plaintiffs’ ability to travel and to attend court would be negatively affected by a change of venue, and the trial court could properly, as it did, take into consideration Hagler’s physical infirmities in exercising its discretion to deny the requested change of venue.

Based upon the foregoing facts and authorities, we conclude that the Walker Circuit Court did not act outside the bounds of its discretion in ordering that the plaintiffs’ action remain in Walker County rather than transferring it to Tuscaloosa County. Therefore, we deny Sandvik’s untimely petition for a writ of mandamus in case no. 2090134 and Siemag’s petition for a writ of mandamus in case no. 2090016.

PETITIONS DENIED.

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

      . There is no indication in the materials submitted in support of the mandamus petitions that Jim Walter's motion to sever has been ruled upon.

      . Our denial of Sandvik’s mandamus petition in case no. 2090134 in no way diminishes our appreciation for the candor of Sandvik’s counsel in admitting that that petition was not timely filed. We will treat the petition as indicating that Sandvik joins in Siemag’s petition in case no. 2090016, as Sandvik has also requested.

      . A fourth, "catch-all” venue provision, § 6-3 — 7(a)(4), applies only if no county would be a proper forum under the other three corporate-venue provisions.

      . Section 6-3-7 was amended in 1999 to provide that the county of the plaintiff’s residence at the time of the accrual of the cause of action is a proper venue in actions against corporations if the corporation does business in that county.


source: Caselaw Access Project

author: WISE, Presiding Judge.

license: Public Domain

text:
    Joseph RENNEY v. STATE of Alabama.
    CR-08-0891.
    Court of Criminal Appeals of Alabama.
    March 5, 2010.

      Blanchard L. McLeod, Jr., Selma, for appellant.
    Troy King, atty. gen., and John M. Porter, asst. atty. gen., for appellee.
   WISE, Presiding Judge.

The appellant, Joseph Renney, was indicted for the capital offense of murder during a sexual abuse, felony-murder, sexual torture, and first-degree sexual abuse. He was convicted of manslaughter, a violation of § 13A-6-3(a)(l), AIa.Code 1975; sexual torture, a violation of § 13A-6-65.1(a)(1), Ala.Code 1975; and first-degree sexual abuse, a violation of § 13A-6-66(a)(1), Ala.Code 1975. The trial court sentenced him to serve concurrent terms of twenty years in prison on the manslaughter conviction, life in prison on the sexual torture conviction, and ten years in prison on the sexual abuse conviction. Renney filed a motion for a new trial, which was denied by operation of law. See Rule 24.4, Ala. R.Crim. P. This appeal followed.

The State presented evidence that Ren-ney and the victim, A.H., lived together for about five years. It also presented evidence that the victim died on April 25, 2005.

Joyce Kiker, the victim’s mother, testified that, on March 19, 2005, Renney telephoned her and told her that the victim said her stomach was hurting and that the victim wanted him to take her to the doctor. When he explained that he could not drive her because he had been drinking, Kiker said she would be there shortly. However, she testified that Renney telephoned her again and said that the victim was not going to go to the doctor because she had had a bowel movement and felt better.

Kiker testified that Renney telephoned her on March 23, 2005, and told her that the victim was at Druid City Hospital (“DCH”) and that she was going to have emergency surgery. She saw the victim briefly before her surgery and then saw her again after she returned from surgery. Kiker testified that Renney was in the room after the victim returned from surgery and that the nurses made him leave the room because the victim’s blood pressure kept going up. After he left, the victim’s blood pressure went back down.

Kiker testified that the victim suffered from manic depression and bipolar disorder. She also testified that she had been hospitalized for those illnesses before and that she took medication to treat them. She further testified that the victim had been off of her medication for approximately three weeks before she was hospitalized.

Kiker testified that she observed bruises on the victim’s face and body after her surgery. She also testified that the victim had told her on previous occasions that she had fallen, that the victim had fallen a lot of times, and that she had cautioned the victim about drinking while she was taking her medication. Kiker further testified that the victim did not mention anything to her about having fallen and sustaining the injuries for which she was hospitalized as a result of a fall. Rather, she testified that, about two weeks after her surgery, the victim told her what had caused the injuries. She talked to law enforcement officers about what the victim had said. Afterward, officers interviewed the victim and ultimately arrested Renney.

Cynthia Robinson testified that she was working as a licensed practical nurse in the emergency room at Hale County Hospital on March 22, 2005, when the victim came into the emergency room. At that time, the victim was vomiting blood and had bruises on her forehead, cheek, and lip. Robinson testified that Renney took the victim to the hospital and reported that the victim had fallen two days before and that she had gotten worse and started throwing up blood. She further testified that the victim was diagnosed as having trauma to the small bowel with gas in the left colon and trauma to her face. Finally, she testified that the victim was at that hospital for only a short time because her condition worsened and she was transferred to DCH.

Donna Dowdy testified that she was working in the emergency room at Hale County Hospital on March 22, 2005, when the victim came in for treatment. She also testified that, at that time, the victim was complaining of nausea and vomiting and that she said she had fallen down some stairs. She further testified that the victim had bruises on her face, chest, and back.

Dowdy testified that Renney accompanied the victim to the hospital and that he appeared to be nervous and hovering over the victim. She also testified that Renney answered for the victim when they asked the victim questions and stated that she drank a lot, that she had been drinking, and that she had fallen down some stairs a few days before. Finally, Dowdy testified that the victim did not appear to be delusional or off of her medication at that time.

Leigh Mercer testified that she was a nurse and that she was the trauma case manager at DCH when the victim was admitted to the hospital in March 2005. When she interviewed the victim, her mother and Renney were in the room with her. Mercer testified that the victim had bruises on her face and arms and other parts of her body. When she asked about how she incurred the injuries, the victim did not initially respond, but looked at Renney. However, at some point during the conversation, she said that she had fallen up some steps. Mercer testified that Renney then moved close to her and to the victim and that she asked him to move because he was making her uncomfortable, but he did not move. Afterward, the victim did not answer any more questions and, when she asked if she was afraid, the victim indicated that she was.

Mercer testified that, after she stopped questioning the victim, Dr. Wallace came in and explained that they were going to perform emergency surgery on the victim. Around that time, Renney talked about what he wanted done for the victim and stated that he needed a do not resuscitate order.

Mercer testified that, later that afternoon, she advised Renney and the victim’s mother that they had contacted the Department of Human Resources and law enforcement officers. Afterward, Renney told her that he had been drinking, that he may have injured the victim, and that he had contacted a facility about getting some help.

Mercer testified that, sometime after the victim had surgery, she told her that Ren-ney had injured her. Specifically, she testified that the victim “said he stuck a stick up her butt and hurt her and beat her.” (R. 351.) Finally, she testified that the victim was alert and oriented and did not appear to be delusional when she made that statement.

Christy Bush testified that she was a nurse in the trauma intensive care unit at DCH and that the victim was in her care after her surgery. She also testified that the diagnosis from the surgery was that the victim had an exploratory laparotomy and a colostomy, that she had suffered blunt force trauma to her abdomen, and that that trauma had perforated her bowel. She further testified that the victim had bruises on her face, her arms, the backs of her legs, and her back.

Bush testified that she noticed that the victim became anxious and that her heart rate and blood pressure went up when Renney arrived in her room. She asked him to step out so she could assess the victim, and he did. Bush further testified that, after Renney left the room, she reassured the victim that she was going to take care of her, and the victim calmed down. She also testified that Renney seemed to glare at the victim rather than comfort her.

Bush testified that, while the victim was intubated, she asked if Renney had injured her and that the victim blinked once and squeezed her hand once to indicate that he had. She also asked if he had hurt her, and the victim gave the same response. Bush further testified that, after the victim was extubated, she asked if Renney had injured her, and the victim indicated that he had. Specifically, she stated that the victim said that Renney had hurt her and beat her.

Officer Maurice Poleon of the Greensboro Police Department testified that he saw the victim after she got out of surgery and asked her if she knew who had injured her. Although she could not speak, the victim hesitated and then nodded to indicate that she did. Poleon let the victim rest and went to talk to her family members for a while. Afterward, he spoke to the victim again and then had other officers speak to Renney.

Poleon testified that he spoke to the victim again the next day and a few days later. Based on information the victim provided, he went to Renney and victim’s residence and located a shovel handle the victim had told him about. The handle was in a puddle of water when he recovered it.

Dr. Patrick Bruce Atkins, a clinical psychiatrist, testified on behalf of the defense and stated that he had treated the victim for about three weeks in 1996 when her treating psychiatrist was out of town. He testified that she had been diagnosed with bipolar/manic-depressive disorder and that she was prone to psychotic states. Atkins testified that the condition could result in broad mood swings, hallucinations, and delusions of grandeur or paranoia.

Atkins reviewed the victim’s mental health records and testified that they showed that she was not always compliant about taking her medication and that she drank alcohol in excessive amounts. He also reviewed the medical records from her hospitalization and surgery and testified that they showed that the victim had to be reoriented repeatedly as to time, place, situation, and person and that she was not capable of understanding instructions. Based on his review of the records, Atkins testified that he did not believe the victim understood what she was doing and was not capable of communicating adequately for a few days after her surgery and particularly during the times when she accused Renney of injuring her.

Dr. James Lauridson, a forensic pathologist, testified that he was previously the chief medical examiner for the Alabama Department of Forensic Sciences. He also testified that Dr. Art Shores performed the autopsy of the victim’s body on April 27, 2005, but did not complete the autopsy report. Lauridson further testified that he completed the autopsy report in October 2005 after reviewing the notes, diagrams, and photographs Shores had made. He signed the autopsy report and listed the final diagnosis as traumatic rupture of the sigmoid colon, listed the cause of death as complications of abdominal trauma, and listed the manner of death as homicide.

Lauridson testified that, before the trial, defense counsel contacted him and asked him to review the victim’s complete medical records, including Dr. Wallace’s surgical notes, which he had not had before. Wallace had diagnosed the victim as suffering from pneumoperitoneum, or air in the abdominal cavity, with a history of a fall. Because there was also a concern that some type of perforation had occurred in the bowel or another organ, Wallace performed an exploratory laparotomy in which he opened the abdomen to try to determine what was causing the air to be in the victim’s abdomen.

Lauridson testified that Wallace found peritoneum fluid that resulted in peritonitis, which is an infection around all of the abdominal organs. He also observed multiple areas of staining and exudate on the small bowel and staining on the colon. Lauridson testified that the records indicated that there was a large amount of staining that was consistent with leakage and that Wallace checked thoroughly for a perforation or injury, but could not find one.

Lauridson testified that Wallace removed a segment of colon and performed a colostomy on the victim, that the hospital pathologist examined the portion of the colon that had been removed, and that the pathologist did not find anything wrong with that portion of the colon. He also testified that he later examined slides that were prepared by the hospital pathologist and that he did not find any signs of injury or disease on that portion of the colon.

Lauridson testified that the victim died from complications of acute peritonitis. He also testified that peritonitis can be caused by a ruptured appendix, bowel in-farctions, divertic out pouches of the colon, or foreign bodies that perforate the bowel. Lauridson testified that it could be caused by spontaneous bacterial peritonitis, which is sometimes seen in people who have alcoholic liver disease. Based on the victim’s history of abusing alcohol and some abnormal liver function tests, he testified that spontaneous bacterial peritonitis could have been considered as a possible cause of the peritonitis in this case.

Lauridson testified that it would have been physically impossible for the shovel handle to have caused the damage to the victim’s colon. He also testified that there was not any evidence of a perforation to the victim’s rectum or colon. Based on his further review, Lauridson testified that he believed the proper final diagnosis was complications of acute peritonitis, with no evidence of trauma, and that the manner of death was undetermined.

On cross-examination, Lauridson admitted that Shores described observing an anaerobic smell in the peritoneum cavity, which indicated that bacteria from the bowel had gotten into the peritoneum cavity. He also admitted that the victim did not have advanced liver disease and that spontaneous peritonitis was very unlikely. Lauridson further admitted that the most likely cause of the peritonitis was perforation of the bowel and that, if a small nick had occurred in the bowel, it would have started healing fairly quickly. However, he maintained that a perforation was not ever located.

In rebuttal, Poleon testified that he spoke to the victim several times about what had happened. He also testified that she told him that Renney “ended up forcefully pushing a stick up her rectum and ... pushed and pushed and pushed.” (R. 587.) Finally, he testified that she told him and the nurses that same story several times.

Deborah Dobb, a forensic biologist with the Alabama Department of Forensic Sciences, testified that she examined the shovel handle for evidence of blood, DNA, and semen. She also testified that she found two stains near the jagged end and tested them for the presence of blood, but the test was negative. Dobb further testified that she detected DNA on the rounded end of the handle, but she was not able to type it. Finally, she explained that moisture will cause DNA to break down more quickly.

Dr. Kenneth Snell, the chief medical examiner for the Alabama Department of Forensic Sciences, performed a cursory review of the autopsy report in this case. He testified that the report indicated that there was a contusion or bruise extending from the pectinate line that divides the rectum and colon approximately three inches into the sigmoid colon. He also testified that, although Shores saw contusions, he did not see evidence of a perforation.

Snell testified that peritonitis can be caused by a rupture of the intestines, an ulcer that eroded and broke through the mucosa and released stomach contents into the peritoneum, trauma to the mucosal area, spontaneous bacterial peritonitis in patients who suffer from hepatic cirrhosis or fibrosis of the liver or who do not have a functioning spleen, the opening of the peritoneum to outside air through dialysis, a nick in the abdominal peritoneum cavity caused by a surgical procedure, or a ruptured appendix. Based on the evidence presented, he stated that there were not any indications that the victim had suffered spontaneous peritonitis. Snell testified that a fall could cause a bruise to the intestines. However, he testified that the braises on the rest of the victim’s body were not consistent with such a fall.

Snell testified that the pathologist could have missed a small hole in the portion of the colon that was removed and examined. He also testified that there could have been mucosal damage in the three-inch area of contusion that was previously mentioned or that damage could have been in more than one area. Snell further testified that the area of staining Wallace observed suggested that there might have been a perforation or an area of mucosa with trauma that allowed for seepage across it. Based on his observations, he testified that he believed the cause of death was complications from abdominal trauma.

Snell examined the shovel handle and testified that it could have been put in the victim’s rectum and could have caused an abrasion to the mucosa that would have allowed seepage without causing an actual perforation. He also testified that the handle could have caused abrasions in several places.

Snell testified that autopsy reports may be amended or changed if additional information becomes available. He also testified that, if Lauridson obtained additional information that caused him to change his opinion, he should have notified the department so appropriate actions could be taken. Finally, he testified that Lauridson did not make such a disclosure to the department.

I.

Renney argues that the State did not present sufficient evidence to support his convictions.

“In deciding whether there is sufficient evidence to support the verdict of the jury and the judgment of the trial court, the evidence must be reviewed in the light most favorable to the prosecution. Cumbo v. State, 368 So.2d 871 (Ala.Cr.App.1978), cert. denied, 368 So.2d 877 (Ala.1979). Conflicting evidence presents a jury question not subject to review on appeal, provided the state’s evidence establishes a prima facie case. Gunn v. State, 387 So.2d 280 (Ala.Cr.App.), cert. denied, 387 So.2d 283 (Ala.1980). The trial court’s denial of a motion for a judgment of acquittal must be reviewed by determining whether there existed legal evidence before the jury, at the time the motion was made, from which the jury by fair inference could have found the appellant guilty. Thomas v. State, 363 So.2d 1020 (Ala.Cr.App.1978). In applying this standard, the appellate court will determine only if legal evidence was presented from which the jury could have found the defendant guilty beyond a reasonable doubt. Willis v. State, 447 So.2d 199 (Ala.Cr.App.1983); Thomas v. State. When the evidence raises questions of fact for the jury and such evidence, if believed, is sufficient to sustain a conviction, the denial of a motion for a judgment of acquittal by the trial court does not constitute error. Young v. State, 283 Ala. 676, 220 So.2d 843 (1969); Willis v. State.”

Breckenridge v. State, 628 So.2d 1012, 1018 (Ala.Crim.App.1993).

“ ‘In determining the sufficiency of the evidence to sustain the conviction, this Court must accept as true the evidence introduced by the State, accord the State all legitimate inferences therefrom, and consider the evidence in the light most favorable to the prosecution.’ Faircloth v. State, 471 So.2d 485, 489 (Ala.Cr.App.1984), affirmed, Ex parte Faircloth, [471] So.2d 493 (Ala.1985).
“ ‘ “The role of appellate courts is not to say what the facts are. Our role, ... is to judge whether the evidence is legally sufficient to allow submission of an issue for decision to the jury.” Ex parte Bankston, 358 So.2d 1040, 1042 (Ala.1978). An appellate court may interfere with the jury’s verdict only where it reaches “a clear conclusion that the finding and judgment are wrong.” Kelly v. State, 273 Ala. 240, 244, 139 So.2d 326 (1962).... A verdict on conflicting evidence is conclusive on appeal. Roberson v. State, 162 Ala. 30, 50 So. 345 (1909). “[W]here there is ample evidence offered by the state to support a ver-diet, it should not be overturned even though the evidence offered by the defendant is in sharp conflict therewith and presents a substantial defense.” Fuller v. State, 269 Ala. 312, 333, 113 So.2d 153 (1959), cert. denied, Fuller v. Alabama, 361 U.S. 936, 80 S.Ct. 380, 4 L.Ed.2d 358 (1960).’ Granger [v. State], 473 So.2d [1137,] 1139 [ (Ala.Crim.App.1985) ].
“... ‘Circumstantial evidence alone is enough to support a guilty verdict of the most heinous crime, provided the jury believes beyond a reasonable doubt that the accused is guilty.’ White v. State, 294 Ala. 265, 272, 314 So.2d 857, cert. denied, 423 U.S. 951, 96 S.Ct. 373, 46 L.Ed.2d 288 (1975). ‘Circumstantial evidence is in nowise considered inferior evidence and is entitled to the same weight as direct evidence provided it points to the guilt of the accused.’ Cochran v. State, 500 So.2d 1161, 1177 (Ala.Cr.App.1984), affirmed in pertinent part, reversed in part on other grounds, Ex parte Cochran, 500 So.2d 1179 (Ala.1985).”

White v. State, 546 So.2d 1014, 1017 (Ala.Crim.App.1989). Also,

“ ‘[c]ircumstantial evidence is not inferior evidence, and it will be given the same weight as direct evidence, if it, along with the other evidence, is susceptible of a reasonable inference pointing unequivocally to the defendant’s guilt. Ward v. State, 557 So.2d 848 (Ala.Cr.App.1990). In reviewing a conviction based in whole or in part on circumstantial evidence, the test to be applied is whether the jury might reasonably find that the evidence excluded every reasonable hypothesis except that of guilt; not whether such evidence excludes every reasonable hypothesis but guilt, but whether a jury might reasonably so conclude. Cum-bo v. State, 368 So.2d 871 (Ala.Cr.App.1978), cert. denied, 368 So.2d 877 (Ala.1979).’
“Ward [v. State], 610 So.2d [1190,] 1191-92 [ (Ala.Crim.App.1992) ].”

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

“ ‘[i]ntent, ... being a state or condition of the mind, is rarely, if ever, susceptible of direct or positive proof, and must usually be inferred from the facts testified to by witnesses and the circumstances as developed by the evidence.’ McCord v. State, 501 So.2d 520, 528-529 (Ala.Cr.App.1986), quoting Pumphrey v. State, 156 Ala. 103, 47 So. 156 (1908).”

French v. State, 687 So.2d 202, 204 (Ala.Crim.App.1995), aff'd in part, rev’d in part on other grounds, 687 So.2d 205 (Ala.1996).

“ ‘The question of intent is hardly ever capable of direct proof. Such questions are normally questions for the jury. McMurphy v. State, 455 So.2d 924 (Ala.Crim.App.1984); Craig v. State, 410 So.2d 449 (Ala.Crim.App.1981), cert. denied, 410 So.2d 449 (Ala.1982).’ Loper v. State, 469 So.2d 707, 710 (Ala.Cr.App.1985).”

Oryang v. State, 642 So.2d 989, 994 (Ala.Crim.App.1994).

“A person commits the crime of manslaughter if:
“(1) He recklessly causes the death of another person.... ”
§ 13A-6-3(a), Ala.Code 1975.
“A person acts recklessly with respect to a result or to a circumstance described by a statute defining an offense when he is aware of and consciously disregards a substantial and unjustifiable risk that the result will occur or that the circumstance exists. The risk must be of such nature and degree that disregard thereof constitutes a gross deviation from the standard of conduct that a reasonable person would observe in the situation. A person who creates a risk but is unaware thereof solely by reason of voluntary intoxication, as defined in subdivision (e)(2) of Section 13A-3-2, acts recklessly with respect thereto.”

§ 13A-2-2(3), Ala.Code 1975.

“A person commits the crime of sexual torture:
“(1) By penetrating the vagina or anus or mouth of another person with an inanimate object by forcible compulsion with the intent to sexually torture or to sexually abuse.”

§ 13A-6-65.1(a), Ala.Code 1975.

“A person commits the crime of sexual abuse in the first degree if:
“(1) He subjects another person to sexual contact by forcible compulsion .... ”

§ 13A-6-66(a), Ala.Code 1975.

Based on the evidence presented, the jury could have reasonably concluded that Renney penetrated the victim’s anus with an inanimate object by forcible compulsion with the intent to sexually torture or sexually abuse her. It could also have reasonably concluded that, in doing so, Renney recklessly caused injuries that ultimately resulted in the victim’s death. Therefore, we conclude that there was sufficient evidence to support his convictions for manslaughter and sexual torture.

However, in Gunter v. State, 665 So.2d 1008, 1012 (Ala.Crim.App.1995), this court held that sexual abuse is a lesser included offense of sexual torture, noting specifically that “[t]he definition of sexual torture incorporates sexual abuse by reference by using the phrase ‘with the intent to sexually torture or sexually abuse.’ (Emphasis added.).” We also held that, “[ujnder the definition of ‘sexual contact,’ ‘any touching of the sexual or other intimate parts’ should be construed literally to mean any touching, whether directly or using an inanimate object.” Gunter, 665 So.2d at 1013.

In this case, we are compelled to conclude that first-degree sexual abuse is a lesser included offense of sexual torture under the facts of this case and that Ren-ney’s convictions for both offenses violate double jeopardy principles. See Straughn v. State, 876 So.2d 492 (Ala.Crim.App.2003). Therefore, Renney’s conviction and sentence for first-degree sexual abuse must be set aside.

II.

Renney also argues that the trial court erred when it did not allow a juror to continue to ask questions of Lauridson. However, he did not object on this ground at trial. Therefore, this argument is not properly before this court. See Ex parte Malone, 12 So.3d 60 (Ala.2008).

III.

Finally, Renney appears to challenge the weight of the evidence presented in his case. However,

“[i]n Johnson v. State, 555 So.2d 818, 819-20 (Ala.Cr.App.1989), this court noted the difference in ‘sufficiency’ and ‘weight’ as follows:
“‘The weight of the evidence is clearly a different matter from the sufficiency of the evidence. The sufficiency of the evidence concerns the question of whether, “viewing the evidence in the light most favorable to the prosecution, [a] rational factfinder could have found the defendant guilty beyond a reasonable doubt.” Tibbs v. Florida, 457 U.S. 31, 37, 102 S.Ct. 2211, 2215, 72 L.Ed.2d 652 (1982). Accord, Prantl v. State, 462 So.2d 781, 784 (Ala.Cr.App.1984).
“ ‘In contrast, “[t]he ‘weight of the evidence’ refers to ‘a determination [by] the trier of fact that a greater amount of credible evidence supports one side of an issue or cause than the other.’ ” Tibbs v. Florida, 457 U.S. at 37-38 [102 S.Ct. at 2216] (emphasis added). We have repeatedly held that it is not the province of this court to reweigh the evidence presented at trial. E.g., Franklin v. State, 405 So.2d 963, 964 (Ala.Cr.App.), cert. denied, 405 So.2d 966 (Ala.1981); Crumpton v. State, 402 So.2d 1081, 1085 (Ala.Cr.App.), cert. denied, 402 So.2d 1088 (Ala.1981); Nobis v. State, 401 So.2d 191, 198 (Ala.Cr.App.), cert. denied, 401 So.2d 204 (Ala.1981). ‘“[T]he credibility of witnesses and the weight or probative force of testimony is for the jury to judge and determine.’ ” Harris v. State, 513 So.2d 79, 81 (Ala.Cr.App.1987) (quoting Byrd v. State, 24 Ala.App. 451, 136 So. 431 (1931)).[’]
“(Emphasis in original.) See Smith v. State, 604 So.2d 434 (Ala.Cr.App.1992); Pearson v. State, 601 So.2d 1119 (Ala.Cr.App.1992); Curry v. State, 601 So.2d 157 (Ala.Cr.App.1992).”

Zumbado v. State, 615 So.2d 1223, 1240-41 (Ala.Crim.App.1993). We will not invade the province of the jury and reweigh the evidence in this case. Therefore, to the extent Renney challenges the weight of the evidence, his argument is not well-taken.

For the above-stated reasons, we affirm Renney’s convictions and sentences for manslaughter and sexual torture, but reverse his conviction and sentence for first-degree sexual abuse. Accordingly, we remand this case for the trial court to set aside Renney’s conviction and sentence for first-degree sexual abuse. The trial court shall take all necessary action to see that the circuit clerk makes due return to this court at the earliest possible time and within 42 days after the release of this opinion.

AFFIRMED AS TO CONVICTIONS FOR MANSLAUGHTER AND SEXUAL TORTURE; REVERSED AND REMANDED WITH INSTRUCTIONS AS TO CONVICTION FOR FIRST-DEGREE SEXUAL ABUSE

WELCH, WINDOM, KELLUM, and MAIN, JJ., concur.

      . Because of our holding in this regard, we need not address Renney’s challenges to his first-degree sexual abuse conviction.

       Note from the reporter of decisions: On April 16, 2010, on return to remand, the Court of Criminal Appeals affirmed, without opinion. On May 7, 2010, that court denied rehearing, without opinion. On June 25, 2010, the Supreme Court denied certiorari review, without opinion (1091179).


author: KELLUM, Judge.

text:
    James Michael WEST, Jr. v. STATE of Alabama.
    CR-09-0132.
    Court of Criminal Appeals of Alabama.
    March 5, 2010.
    Rehearing Denied April 16, 2010.
    Certiorari Denied June 18, 2010 Alabama Supreme Court 1091059.

      Debbie Lindsey Jared, Elba, for appellant.
    Troy King, atty. gen., and Andy S. Poole, asst. atty. gen., for appellee.
   KELLUM, Judge.

The appellant, James Michael West, Jr., pleaded guilty to one count of trafficking in cocaine, a violation of § 13A-12-231, Ala.Code 1975. The trial court sentenced West, as a habitual offender, to a term of life imprisonment and ordered West to pay a $50,000 fine, $500 to the Alabama Crime Victims Compensation Fund, a $2,000 Drug Demand Reduction Act assessment, and a $100 Department of Forensic Sciences assessment.

On April 30, 2009, a Houston County grand jury indicted West on one count of trafficking in cocaine. On May 4, 2009, West filed a motion to suppress on the ground that the warrantless search of his vehicle, in which the police discovered 117 grams of cocaine, was illegal because, he said, it was conducted without probable cause. In the suppression hearing held on October 5, 2009, the State presented the following evidence. On February 3, 2009, Sergeant Jim Holley and Officer Ray Mock of the Dothan Police Department were on patrol in the Omussee Road area of Dothan when they received a confidential tip that a white Nissan Titan truck being driven by a black male would soon be traveling on Omussee Road on its way from Georgia and that it was carrying a large quantity of cocaine. No additional information about the suspect, the vehicle, or the suspect’s anticipated movements or activities was supplied by the informant. Officer Mock testified that the person providing the tip was not a known, reliable informant.

Less than an hour later, the officers saw a truck fitting the description provided by the informant driving in the opposite direction of the officers at a high rate of speed. Officer Mock did not use a radar gun to document the speed of the truck, but guessed that it was traveling approximately 70 miles per hour, which was above the posted speed limit. The officers began following the truck and observed the driver run a stop sign as he made a right turn onto Webb Road. The truck continued to drive over the posted speed limit on Webb Road, made two more turns, and eventually pulled into a driveway of a house, later determined to be West’s mother’s house. The officers, who were driving an unmarked police car, initiated the emergency lights right before the driver pulled into the driveway of the house. West got out of the truck and locked it. The two officers made contact with West and began asking him about speeding and running the stop sign. Officer Mock testified that West was breathing heavily and that his hands were shaking as he handed the officers his driver’s license. Officer Mock also noticed a bulge in West’s pocket, so Mock conducted a pat-down search for officer safety, but no weapons were found.

A check of West’s driver’s license indicated that he was on probation. West told the officers that he was on probation for drug charges. The officers then asked West if they could search his car, but West would not give his consent to a search. The officers called Corporal Chad Kinney and asked him to bring a narcotics-detecting dog to the scene. Corporal Kinney and the canine arrived soon thereafter, at which point the dog indicated to the officers that drugs were present in the vehicle. The officers searched the truck and found four clear, plastic bags filled with a white powder that appeared to be cocaine between the front passenger seat and the door. A field test indicated that the substance in the plastic bags was in fact cocaine. The officers detained West and read him his Miranda rights. West waived those rights and made a statement to police admitting that he had purchased the cocaine in another state for $4,000 with the intention of reselling it.

At the conclusion of the hearing, the trial court denied West’s motion to suppress. The Court explained:

“THE COURT: I think, with the traffic violations, that gives them their reasonable suspicion to stop him. And then I think that they’re entitled to a reasonable period of time in which to get a drug dog out to further investigate the stop, which is what they did.
“I agree you can’t use the reliability of this informant to make this case. That’s for future potential cases, not this case. Can’t use the fact that he declined to consent to a search against him, either. But, for the other reasons, I’ll deny the motion.”

(R. 81-82.) After reserving the right to appeal the denial of his motion to suppress, West pleaded guilty to trafficking in cocaine. This appeal ensued.

On appeal, West argues that the trial court erroneously denied his motion to suppress the evidence found in West’s truck and the statements he made to police while in custody. Specifically, West contends that the police conducted a warrant-less search of his truck without probable cause.

In State v. Landrum, 18 So.3d 424 (Ala.Crim.App.2009), this Court explained:

“ ‘This Court reviews de novo a circuit court’s decision on a motion to suppress evidence when the facts are not in dispute. See State v. Hill, 690 So.2d 1201, 1203 (Ala.1996); State v. Otwell, 733 So.2d 950, 952 (Ala.Crim.App.1999).’ State v. Skaggs, 903 So.2d 180, 181 (Ala.Crim.App.2004). In State v. Hill, 690 So.2d 1201 (Ala.1996), the trial court granted a motion to suppress following a hearing at which it heard only the testimony of one police officer. Regarding the applicable standard of review, the Alabama Supreme Court stated, in pertinent part, as follows:
“ ‘ “Where the evidence before the trial court was undisputed the ore tenus rule is inapplicable, and the Supreme Court will sit in judgment on the evidence de novo, indulging no presumption in favor of the trial court’s application of the law to those facts.” Stiles v. Brown, 380 So.2d 792, 794 (Ala.1980) (citations omitted). The trial judge’s ruling in this case was based upon his interpretation of the term “reasonable suspicion” as applied to an undisputed set of facts; the proper interpretation is a question of law.’
“State v. Hill, 690 So.2d at 1203-04.”

18 So.3d at 426. Because the evidence presented at the suppression hearing is not in dispute, the only issue before this Court is whether the circuit court correctly applied the law to the facts presented at the suppression hearing, and we afford no presumption in favor of the circuit court’s ruling.

This Court has recognized that a traffic stop is “ ‘ “more analogous” to the brief investigative detention authorized by Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968)’ ” than to custody traditionally associated with a felony arrest. Sides v. State, 574 So.2d 856, 858 (Ala.Crim.App.1990), quoting Pittman v. State, 541 So.2d 583, 585 (Ala.Crim.App.1989), quoting in turn Berkemer v. McCarty, 468 U.S. 420, 439, 104 S.Ct. 3138, 82 L.Ed.2d 317 (1984). In stopping a vehicle for a traffic violation, a police officer has, in Fourth Amendment terms, seized the driver, Cains v. State, 555 So.2d 290, 292 (Ala.Crim.App.1989), quoting Delaware v. Prouse, 440 U.S. 648, 653, 99 S.Ct. 1391, 59 L.Ed.2d 660 (1979). “Under Terry [v. Ohio, 392 U.S. 1 (1968) ], law-enforcement officers may stop a vehicle for investigatory purposes based on a traffic violation. State v. Rodgers, 903 So.2d 176, 178 (Ala.Crim.App.2004).” J.T.C. v. State, 990 So.2d 444, 447 (Ala.Crim.App.2008).

Furthermore, in Illinois v. Caballes, 543 U.S. 405, 125 S.Ct. 834, 160 L.Ed.2d 842 (2005), the United States Supreme Court stated:

“[T]he use of a well-trained narcoties-detection dog — one that ‘does not expose noncontraband items that otherwise would remain hidden from public view,’ [United States v.] Place, 462 U.S. [696] at 707 [ (1983) ] — during a lawful traffic stop, generally does not implicate legitimate privacy interests. In this ease, the dog sniff was performed on the exterior of respondent’s car while he was lawfully seized for a traffic violation. Any intrusion on respondent’s privacy expectations does not rise to the level of a constitutionally cognizable infringement.”

543 U.S. at 409, 125 S.Ct. 834. See also Seeley v. State, 669 So.2d 209, 212 (Ala.Crim.App.1995) (“Likewise, the ‘sniff test’ by the narcotic detection dog did not come within the protection afforded by the Fourth Amendment.”).

Here, the relevant inquiry is whether an investigatory detention was justified and whether the detention was unreasonably long. West was lawfully detained by the police officers who witnessed him commit various traffic violations; thus, the officers were justified in carrying out an investigatory detention. The record does not indicate that the detention was so prolonged that it became unconstitutional. Officer Mock testified that Officer Kinney arrived on the scene with a narcotics-detecting dog shortly after he was contacted by Officers Holley and Mock. Once the dog indicated the presence of narcotics, the officers then had probable cause to search West’s truck. See State v. Montgomery, 968 So.2d 543, 552 (Ala.Crim.App.2006) (“[A]n alert by a trained drug-sniffing dog provides probable cause to search without a warrant.”). Accordingly, the trial court properly denied West’s motion to suppress.

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

AFFIRMED.

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

      . Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).


text:
    Radford DAWSON v. STATE of Alabama.
    CR-09-0266.
    Court of Criminal Appeals of Alabama.
    June 25, 2010.
    Aimee C. Smith, Montgomery, for appellant.
    Troy King, atty. gen., and James B. Prude, asst. atty. gen., for appellee.
   WISE, Presiding Judge.

The appellant, Radford Dawson, entered a guilty plea to second-degree criminal trespass, a violation of § 13A-7-3, Ala. Code 1975. The trial court sentenced him to serve a term of thirty days in the county jail. After conducting a restitution hearing, the trial court ordered Dawson to pay $644.70 in restitution. This appeal followed.

During the guilty plea proceedings, Dawson admitted that, on May 11, 2009, he was on someone’s real property on Lexington Road, that the property was fenced, and that he was there without the homeowner’s permission. After Dawson entered his guilty plea, the State asserted that Dawson had attempted to enter the victim’s house that was located on the property; that a rear window of the house had been damaged; that, because the house was in a historic district, the window could not be repaired and had to be replaced; and that the victim was requesting $664.70 in restitution. Defense counsel objected and asserted that Dawson was charged with criminal trespass rather than criminal mischief or burglary and that Dawson had not admitted that he had tried to enter the house. At that time, the trial court gave the parties time to provide case-law on the issue.

Subsequently, the trial court conducted a restitution hearing. During the hearing, defense counsel argued that no witnesses saw Dawson break anything; that the witness in this case said Dawson was in the backyard of the property; that Dawson was originally charged with possession of burglar’s tools; that the case went through the grand jury, and “the only thing they can prove is he trespassed on the property”; and that Dawson was indicted for the misdemeanor offense of trespassing. (R. 28.)

During the hearing, the victim testified that he lived in the house in question; that he was at the house every day; that, on the day in question, he left to pick up his granddaughter from school; that he received a telephone call about someone trying to break into his house; that he went back to his house; that, when he got back, law enforcement officers had a man in a vehicle; that the officers took him around the back; that he saw where someone had tried to pry open the window; that the person had broken the frame across the bottom of the window; and that the window was not like that when he left his house.

Dawson argues that the trial court abused its discretion when it ordered him to pay $644.70 in restitution for damage to the window. Specifically, he contends that the criminal conduct for which he was convicted was not the proximate cause of the damage to the window and that he did not admit to other criminal conduct that was the proximate cause of the damage to the window.

In Best v. State, 895 So.2d 1050, 1054-56 (Ala.Crim.App.2004), this court discussed the imposition of restitution as follows:

“Section 15-18-65, Ala.Code 1975, states, in pertinent part:
“ ‘[I]t is essential to be fair and impartial in the administration of justice, that all perpetrators of criminal activity or conduct be required to fully compensate all victims of such conduct or activity for any pecuniary loss, damage or injury as a direct or indirect result thereof’
“(Emphasis added.) Section 15-18-66(1), Ala.Code 1975, defines ‘criminal activity’ as ‘[a]ny offense with respect to which the defendant is convicted or any other criminal conduct admitted by the defendant.’
“In Strough v. State, 501 So.2d 488, 491 (Ala.Crim.App.1986), this Court stated that ‘[bjefore a defendant can be held liable for damages, it must be established that his criminal act was the proximate cause of the injury sustained by the victim.’

“In Day v. State, 557 So.2d 1318, 1319 (Ala.Crim.App.1989), this Court stated:

“ ‘In the instant case, appellant was ordered to pay restitution to Patterson after being convicted of the attempted murder of Johnson, an offense which was not alleged in the indictment or proven at trial to be the cause of Patterson’s injury. “Before a defendant can be held liable for damages, it must be established that his criminal act was the proximate cause of the injury sustained....” Strough v. State, 501 So.2d 488, 491 (Ala.Cr.App.1986). While there was some evidence in the record tending to show that appellant did cause Patterson’s injury, he was not on trial here for causing her injury, nor had he been convicted of causing her injury....
“ ‘If it could be said that Patterson’s injury arose from appellant’s attempted murder of Johnson, for which he was convicted, then she could properly be characterized as a victim, and restitution to her would be proper. However, when one suffers a loss which 'resulted from conduct that was not the subject of the defendant’s prosecution and for which a subsequent prosecution would be necessary to determine the defendant’s criminal liability, if any, we hold that an order of restitution to that person is no more appropriate than would be the sentencing of the defendant to a term of imprisonment without first affording him the basic constitutional guarantees of a trial and verdict on those charges. Appellant should not have been ordered to pay restitution to Patterson.’

“In Brothers v. State, 531 So.2d 317, 318 (Ala.Crim.App.1988), this Court stated:

“‘The appellant was indicted for burglary in the third degree, theft of property in the first degree, and arson in the second degree. He pleaded guilty to burglary in the third degree and theft of property in the first degree, with the arson charge being continued under the condition that the charge would be dismissed if the appellant pleaded guilty to the other offenses and did not appeal. The appellant was sentenced to life imprisonment pursuant to the Habitual Felony Offender Act and was ordered to pay restitution for the full replacement value of the house and its contents which were destroyed in the fire resulting from the arson.
“ T
“ ‘The appellant alleges that the trial court erred in ordering him to pay restitution for damage to the property caused by arson when he was not convicted of arson and did not admit that his criminal activity resulted in the damage which was caused by the arson....
“ ‘The State argues that the damage caused by the arson was an “indirect result” of the appellant’s criminal activity.
“ ‘The appellant did not admit committing arson, nor was he convicted of committing arson. This case is distinguishable from Ex parte Clare, 456 So.2d 357 (Ala.1984). The appellant in Clare was ordered to pay restitution for monies embezzled in an amount greater than that involved in the indictment. However, she admitted embezzling monies which rightfully belonged to her employer and was convicted of embezzling.
“ ‘The burning of the victim’s house was not an indirect result of the theft or burglary under § 13A-2-5, Code of Alabama (1975)....
“ ‘Clearly the appellant’s acts of breaking and entering and committing theft were not the cause of the burning of the victim’s house; rather, the act of committing arson was the cause. The burning of the house would not have been within the contemplation of the appellant in committing burglary or theft. Therefore, the trial court erred in ordering the appellant to pay restitution for the property damaged by the arson.’
“In Lamar v. State, 803 So.2d 576 (Ala.Crim.App.2001), this Court reversed the trial court’s restitution award of $25,000 to Rosalyn Sellers and her son for injuries they had sustained in an automobile accident. Lamar had entered a guilty plea to the offense of leaving the scene of an accident, a violation of § 32-10-1, Ala. Code 1975, and he argued on appeal that ‘the circuit court improperly ordered him to pay restitution because, he argue[d], the injuries the victims sustained were not “proximately caused” by his leaving the scene.’ Lamar, 803 So.2d at 577. In our opinion reversing the trial court’s restitution award, this Court stated:
“ ‘The term “criminal activities” is defined in § 15-18-66, Ala.Code 1975, as “[a]ny offense with respect to which the defendant is convicted or any other criminal conduct admitted by the defendant.” “However, before there can be any recovery, the criminal activity must be the proximate cause of the pecuniary loss, damage, or injury.” Moore v. State, 706 So.2d 265, 267 (Ala.Crim.App.1996). Therefore, under Alabama’s restitution statute, Lamar could be ordered to pay restitution to the victims of his crime only if one of two conditions existed: (1) his victims suffered any direct or indirect pecuniary losses as a result of the activity for which he has been convicted or, (2) Lamar admitted to other criminal conduct during these proceedings that was the proximate cause of any injuries to the victims.
“ ‘... The crime of “leaving the scene” does not require that the defendant cause the accident; it requires only that he be involved in the accident.... The trial court could order Lamar to pay restitution only for the pecuniary losses his victims sustained as a result of the offense to which he pleaded guilty.... Lamar’s plea of guilty to the offense defined in §§ 32-10-1 and 32-10-2 did not result in a conviction for causing the accident that resulted in the injuries to Sellers and her son, and, therefore, his guilty plea could not authorize the trial court to sentence him to pay restitution for injuries sustained as a result of the accident. See Day v. State, 557 So.2d 1318, 1319 (Ala.Crim.App.1989) (holding that an order of restitution is inappropriate for injuries the victim suffers as a result of “conduct that was not the subject of the defendant’s prosecution and for which a subsequent prosecution would be necessary”).
“ ‘The trial court could also have ordered Lamar to pay restitution for “any other criminal conduct” he admitted during these proceedings that was the proximate cause of the victims’ injuries. See § 15-18-66. However, at no point during the plea colloquy, the sentencing hearing, or the restitution hearing did Lamar ever admit to having caused the accident resulting in the victims’ injuries. Although evidence was presented during both the sentencing and restitution hearings that Lamar had caused the accident because he was speeding and he struck a turning vehicle, Lamar himself never made such an admission. Under the plain language of § 15-18-66, restitution can be ordered only for “other criminal conduct” that is admitted by the defendant. This court has previously held that an admission, as defined in § 15-18-66, requires “a judicial admission sufficient to support a conviction before restitution can be ordered.” Day v. State, supra, at 1319. Therefore, the trial court had no statutory authorization to order Lamar to pay restitution to Sellers and her son for the injuries they sustained during the accident, because Lamar never admitted any conduct that could be said to be the proximate cause of their injuries.’
“Lamar, 803 So.2d at 577-79 (footnote omitted).
“In the present case, Best was convicted of receiving stolen property, i.e., Garrick’s 1988 Dodge pickup truck. There were no allegations or proof that Best ever had possession of Garrick’s personal property. In fact, as previously noted, Garrick admitted at the sentencing hearing that he ‘really [didn’t] know if Mr. Best ever had those items’ in his possession. (R. 181.) At the sentencing hearing, Best stated that ‘[t]he truck was given to [him] for drugs ... [that he] gave [Garrick’s] wife drugs to use the truck’ and that ‘on this date, February the 7th, [he] gave her some crack cocaine for the truck.’ (R. 186-87.)
“In light of the foregoing, the trial court improperly ordered Best to pay restitution to Garrick in the amount of $3,300 for his missing personal property.”

(Emphasis added.)

In this case, Dawson entered a guilty plea to second-degree criminal trespass.

“A person is guilty of criminal trespass in the second degree if he knowingly enters or remains unlawfully in a building or upon real property which is fenced or enclosed in a manner designed to exclude intruders.”

§ 13A-7-3(a), Ala.Code 1975. Causing damage to the victim’s property was not an element of the offense of second-degree criminal trespass. Also, neither the indictment nor the factual basis for Dawson’s guilty plea included any allegations that Dawson had damaged the victim’s property. Additionally, the damage to the window was not caused by the conduct that was the subject of Dawson’s prosecution— i.e., Dawson entering the victim’s fenced property. Rather, a subsequent prosecution would have been necessary to determine whether Dawson was criminally liable for damage to the victim’s window. Therefore, Dawson’s criminal conduct in this case was not the proximate cause of the damage to the victim’s window. Further, Dawson did not, at any time during the proceedings, admit that he caused the damage to the victim’s window. Therefore, the trial court erred when it ordered Dawson to pay restitution for damage to the window. Accordingly, we reverse the trial court’s judgment and remand this case for the trial court to set aside its restitution order in this case.

REVERSED AND REMANDED.

WELCH, WINDOM, KELLUM, and MAIN, JJ., concur.


text:
    STATE of Alabama v. O.R.J.
    CR-09-0275.
    Court of Criminal Appeals of Alabama.
    June 25, 2010.

      Troy King, atty. gen., and Ferris Stephens, asst. atty. gen., for appellant.
    Roianne Houlton Conner, Montgomery, for appellee.
   WISE, Presiding Judge.

The appellee, O.R.J., was indicted for unlawful possession of a controlled substance and first-degree unlawful possession of marijuana. O.R.J. moved to suppress evidence law enforcement officers seized pursuant to a warrantless search of his vehicle and statements he made to officers after he was arrested. After conducting a hearing, the trial court granted O.RJ.’s motion to suppress. This appeal by the State followed.

The State argues that the trial court erroneously granted O.R.J.’s motion to suppress the evidence law enforcement officers seized pursuant to a warrantless search of his vehicle. Specifically, it contends that, because they could smell the odor of marijuana coming from his vehicle and because O.R.J. was acting suspiciously and gave a false name and false date of birth, the officers had probable cause to search his vehicle.

During the suppression hearing, Officer Howard Lawhorn of the Montgomery Police Department testified that, on November 14, 2008, while they were preparing to set up a checkpoint, he and other officers stopped O.R.J.’s vehicle because he was playing his music too loudly. They told O.R.J. to stay in the vehicle, but he got out and started walking away from them, which Lawhorn described as “kind of suspicious.” (R. 6.) O.R.J. then turned around, and the officers started asking him questions. Lawhorn testified that O.R.J. did not have any identification on him and that he gave them a false name at first. He also testified that they were about five feet away from the vehicle and that O.R.J. was close enough to get back into the vehicle at that time if he wanted to. Finally, he testified that they smelled the odor of marijuana coming from the vehicle and that another officer entered the vehicle.

Officer M.A. Jones of the Montgomery Police Department testified that he was on duty with Lawhorn on November 14, 2008, when Corporal Deramus initiated a stop of O.RJ.’s vehicle. After the vehicle stopped, O.R.J. got out and started walking away, but Deramus instructed him to get back to the vehicle, and he did.

Jones testified that O.R.J. was extremely nervous and was looking away, that he could not answer any questions, and that he gave them a false name and a false date of birth. He also testified that O.R.J. was jittery and started sweating. Jones testified that O.R.J. was detained but not in custody and that he could have gotten back into the vehicle at that time.

Jones testified that he and Deramus entered the vehicle to perform a wingspan search and to look for identification because O.R.J. had been lying about his identity. They smelled the strong odor of marijuana in the vehicle, found an item with O.R.J.’s name on it, confirmed his identity, and then found narcotics in the vehicle. At that point, they handcuffed O.R.J. and placed him in a patrol vehicle. While the officers were checking him through their computer system, O.R.J. got out of the vehicle and ran up the street.

At the end of Jones’s testimony, the following occurred:

“THE COURT: Anything else other than — that suggested that he committed a crime or was about to commit a crime or doing anything illegal?
“THE WITNESS: His actions, his mannerism while he was speaking with Corporal Deramus and myself.
“THE COURT: What was that?
“THE WITNESS: He was extremely nervous.
“THE COURT: Was this daytime or nighttime?
“THE WITNESS: It was nighttime, sir.
“THE COURT: This is on Gaston Avenue?
“THE WITNESS: Correct, sir.
“THE COURT: Everybody over there when a police officer stops them will act nervous.
“THE WITNESS: Corporal Deramus is a black officer, Judge.
“THE COURT: Well, I don’t care if he is black or white, they are just going to act nervous. Ain’t no question about that. But he hadn’t done anything else to show that he had committed a crime?
“THE WITNESS: He attempted to get away from the vehicle before Corporal Deramus could get to him.
“THE COURT: What you mean? How did that happen?
“THE WITNESS: As soon as Corporal Deramus initiated his emergency equipment, he immediately pulled over into a parking lot, got out of his vehicle and attempted to walk away.
“THE COURT: Y’all stopped him?
“THE WITNESS: Yes, sir.”

(R. 18-19.) Later, the trial court granted O.RJ.’s motion to suppress without any further explanation.

In State v. Hill, 690 So.2d 1201, 1203-04 (Ala.1996), the Alabama Supreme Court stated the following with regard to standards of review to be applied when reviewing a trial court’s ruling on a motion to suppress:

“As a preliminary matter, we note that there has been some debate regarding the applicable standard of appellate review. In its unpublished memorandum, the Court of Criminal Appeals showed great deference to the trial court’s decision to suppress the evidence of the cocaine and marijuana. It stated:
“ ‘[A] trial court’s ruling on a motion to suppress will not be disturbed unless it is “palpably contrary to the weight of the evidence.” Patterson v. State, 659 So.2d 1014 (Ala.Cr.App.1995). The trial court is in a far better [sic] than this court to rule on the merits of a motion to suppress. Sullivan v. State, 23 Ala.App. 464, 127 So. 256 (1930). The trial court’s ruling [on] the motion to suppress was not palpably wrong.’
“The State contends that the deference of the Court of Criminal Appeals to the judgment of the trial court was unwarranted. It claims that an appellate court should review de novo the trial court’s finding that ‘reasonable suspicion’ was lacking, because the facts in the case are not in dispute. We agree.
“The trial judge made his ruling following a healing at which he heard oral testimony only from Officer Bailey. We stated in Ex parte Agee, 669 So.2d 102 (Ala.1995):
“ Where evidence is presented to the trial court ore tenus in a nonjury case, a presumption of correctness exists as to the court’s conclusions on issues of fact; its determination will not be disturbed unless clearly erroneous, without supporting evidence, manifestly unjust, or against the great weight of the evidence. Odom v. Hull, 658 So.2d 442 (Ala.1995). However, when the trial court improperly applies the law to the facts, no presumption of correctness exists as to the court’s judgment. Ex parte Board of Zoning Adjustment of the City of Mobile, 636 So.2d 415 (Ala.1994).’
669 So.2d at 104. ‘Where the evidence before the trial court was undisputed the ore tenus rule is inapplicable, and the Supreme Court will sit in judgment on the evidence de novo, indulging no presumption in favor of the trial court’s application of the law to those facts.’ Stiles v. Brown, 380 So.2d 792, 794 (Ala.1980) (citations omitted).”

(Emphasis added.)

“The Fourth Amendment does not require that police obtain a warrant to search an automobile when they have probable cause to believe it contains contraband or evidence of criminal activity. United States v. Ross, 456 U.S. 798, 102 S.Ct. 2157, 72 L.Ed.2d 572 (1982); Chambers v. Maroney, 399 U.S. 42, 90 S.Ct. 1975, 26 L.Ed.2d 419 (1970) (war-rantless search of vehicle valid when police had probable cause to believe automobile contained evidence of service station robbery because automobile matched description given by eyewitnesses). Two rationales underlie the automobile exception to the warrant requirement. First, the inherent mobility of vehicles creates exigent circumstances that make obtaining a warrant impractical. United States v. Chadwick, 433 U.S. 1, 97 S.Ct. 2476, 53 L.Ed.2d 538 (1977). Second, there is a lessened expectation of privacy in automobiles because of physical characteristics and pervasive regulation of moving vehicles. Arkansas v. Sanders, 442 U.S. 753, 99 S.Ct. 2586, 61 L.Ed.2d 235 (1979); California v. Carney, 471 U.S. 386, 105 S.Ct. 2066, 85 L.Ed.2d 406 (1985); Mewbourn v. State, 570 So.2d 805 (Ala.Crim.App.1990).”

Seagroves v. State, 726 So.2d 738, 743 (Ala.Crim.App.1998). Under the automobile exception to the warrant requirement, “ ‘[a] warrantless search of a vehicle is justified where there is probable cause to believe the vehicle contains contraband.’ Lykes v. State, 709 So.2d 1335, 1337 (Ala.Crim.App.1997).” Harris v. State, 948 So.2d 583, 587 (Ala.Crim.App.2006). Finally,

“[wjhether there is probable cause to merit a warrantless search and seizure is to be determined by the totality of the circumstances. Illinois v. Gates, 462 U.S. 213, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983). ‘Probable cause exists where all the facts and circumstances within the officer’s knowledge are sufficient to warrant a person of reasonable caution to conclude that an offense has been or is being committed and that contraband would be found in the place to be searched.’ Sheridan v. State, 591 So.2d 129, 130 (Ala.Crim.App.1991).”

State v. Stallworth, 645 So.2d 323, 325 (Ala.Crim.App.1994).

O.R.J. argues that the officers did not have the authority to search his vehicle because the stop was merely for a noise ordinance violation. However, the undisputed evidence showed that O.R.J. acted suspiciously from the time the officers first stopped him, that he initially walked away from the vehicle even though the officers told him to stay in the vehicle, that he was sweating and appeared to be nervous, and that he lied to the officers about his name and date of birth. Under these circumstances, the officers were justified in entering the vehicle to conduct a wingspan search and to look for identification, Cf. State v. Bailey, 49 So.3d 1245 (Ala.Crim.App.2010) (holding that officers were justified in searching Bailey where Bailey and a female were on a bicycle traveling down the middle of the road and into oncoming traffic, were not wearing safety gear, and could not produce any type of identification); State v. Taylor, 46 So.3d 504, 509 (Ala.Crim.App.2010) (holding that officers were justified in searching Taylor when he was in a high-crime area, was seen walking up to a house that was known for drug activity, and said he did not have any identification, noting that the officer’s “inference that Taylor could be armed was reasonable, and this Court must give due weight to ‘ “the specific reasonable inference which [a police officer] is entitled to draw from the facts in light of his experience.” ’ State v. Hails, 814 So.2d [980] at 986 [ (Ala.Crim.App.2000) ], quoting Terry [v. Ohio ], 392 U.S. [1] at 27 [88 S.Ct. 1868, 20 L.Ed.2d 889 (1968) ].”). Further, Jones testified that, after they entered the vehicle, they smelled marijuana. Therefore, at that time, the officers had probable cause to search the vehicle for marijuana. See State v. Gargus, 855 So.2d 587 (Ala.Crim.App.2003). For these reasons, the trial court erred when it granted O.RJ.’s motion to suppress the evidence officers seized during the search and statements he made thereafter. Accordingly, we reverse the trial court’s judgment and remand this case for proceedings that are consistent with this opinion.

REVERSED AND REMANDED.

WELCH, WINDOM, KELLUM, and MAIN, JJ., concur.

      . O.R.J. was also indicted for third-degree escape, but that charge is not before us.