author: MOORE, Judge.

text:
    L.K. v. LEE COUNTY DEPARTMENT OF HUMAN RESOURCES.
    2090934.
    Court of Civil Appeals of Alabama.
    Dec. 10, 2010.
    Melissa S. Gowan of Walter Northcutt & Associates, Opelika, for appellant.

      Sharon E. Ficquette, gen. counsel, and Elizabeth Hendrix, staff atty., Department of Human Resources, for appellee.
   MOORE, Judge.

L.K. (“the mother”) appeals from a judgment entered by the Lee Juvenile Court (“the juvenile court”) terminating her parental rights to R.K. and S.K. (“the children”).

The Lee County Department of Human Resources (“DHR”) filed a petition to terminate the mother’s parental rights to the children on October 30, 2009. In its prayer for relief in that petition, DHR requested that the juvenile court would “cause service to be perfected on the ... mother ... at her last known address [in] Columbus, Georgia ... and by publication.”

On December 1, 2009, DHR filed a motion requesting to serve the mother by publication. That motion stated that the mother “is transient and her current whereabouts are unknown” and that “[p]ersonal service will be attempted at [the mother’s] last known address.” The motion further stated that DHR “will attempt personal service at the last known address of the [mother] but, it is requested that the Clerk of this Court be given authorization to grant service by publication on [the mother].” On December 2, 2009, the juvenile court entered an order granting DHR’s motion for service by publication, ordering the clerk of the court to issue a notice of service by publication on the mother “in the Auburn Villager in Auburn,” which is a newspaper of general circulation in Lee County. The clerk of the court issued that notice on that same date; that notice informed the mother, among other things, that she

“must answer the Petition for Termination of Parental Rights filed in the Family Court of Lee County, Alabama by Lee County DHR, within fourteen

(14) days from the last date of Publication of this notice, or appear at the full hearing in this cause scheduled for WEDNESDAY the 3RD DAY OF FEBRUARY, 2010 AT 1:30 P.M. IN THE FAMILY COURTROOM AT THE LEE COUNTY JUSTICE CENTER....”

(Capitalization in original; bold typeface omitted.) DHR presented exhibits indicating that that notice had been published in the Auburn Villager on December 10, December 17, December 24, and December 31, 2009.

The juvenile court entered an order on March 11, 2010, rescheduling the termination hearing. In that order, the juvenile court noted that service had been perfected on the mother by publication. A trial was held on April 22, 2010. At the trial, Keitha Dirck, an employee of the foster-care unit of DHR, testified that the notice by publication had been published in the Lee County newspaper rather than in a Columbus, Georgia, newspaper, although she admitted that each of the addresses she had listed for the mother were in Columbus, Georgia. The mother’s father testified that the mother lived in Georgia and that she had moved to Tennessee at one time. At the conclusion of DHR’s case, the mother’s attorney moved to dismiss on the ground of improper service; the juvenile court denied that motion. On June 24, 2010, the juvenile court entered a judgment terminating the mother’s parental rights. The mother filed her notice of appeal to this court on June 28, 2010.

The sole issue raised by the mother on appeal is that she was not properly served by publication and, thus, that the juvenile court never obtained personal jurisdiction over her. The mother argues, and DHR concedes, that DHR failed to properly follow the procedure for service by publication set out in Rule 4.3, Ala. R.

Civ. P., and that the judgment terminating the mother’s parental rights was therefore void for lack of in personam jurisdiction. See M.M. v. B.L., 926 So.2d 1038, 1042 (Ala.Civ.App.2005) (failure to properly serve father rendered judgment terminating his parental rights void). However, we find that the procedure for service by publication is not governed by Rule 4.3, Ala. R. Civ. P., in cases involving the termination of parental rights.

Rule 1(A), Ala. R. Juv. P., provides, in pertinent part:

“These Rules govern the procedure for all matters in the juvenile court. If no procedure is specifically provided in these Rules or by statute, the Alabama Rules of Civil Procedure shall be applicable to those matters that are considered civil in nature....”

(Emphasis added.) Rule 13(A)(2), Ala. R. Juv. P., provides that “[tjhere shall be no service by publication of any proceeding in the juvenile court except in proceedings to terminate parental rights.” We turn, therefore, to the Alabama Juvenile Justice Act, § 12-15-101 et seq., Ala.Code 1975, for guidance regarding service of process in termination-of-parental-rights proceedings.

Section 12-15-318, Ala.Code 1975, provides:

“(a) Except as otherwise provided by the Alabama Rules of Juvenile Procedure and this section, service of process of termination of parental rights actions shall be made in accordance with the Alabama Rules of Civil Procedure.
“(b) If service of process has not been completed within 90 days of the filing of the termination of parental rights petition, the petitioner shall request service by publication.
“(c) Service of process by publication may not be ordered by the juvenile court unless the following conditions are met:
“(1) The child who is the subject of the proceedings was abandoned in the state.
“(2) The state or private department or agency having custody of the child has established, by evidence presented to the juvenile court, that the absent parent or parents are avoiding service of process or their whereabouts are unknown and cannot be ascertained with reasonable diligence.
“(d) Service shall be made by publication in a newspaper of general circulation in the county of the juvenile court having jurisdiction and in the county of the last known address of the parent or parents of the abandoned child, at least once a week for four consecutive weeks.”

Because § 12-15-318 regulates the procedure for service by publication in termination-of-parental-rights cases, the provisions of Rule 4.3, Ala. R. Civ. P., cannot be applied in those proceedings.

We have not before had occasion to construe § 12-15-318. In construing a statute, we apply the ordinary and plain meaning of the words in order to determine the legislative intent. Tuscaloosa County Comm’n v. Deputy Sheriffs’ Ass’n of Tuscaloosa County, 589 So.2d 687, 689 (Ala. 1991). Section 12-15-318(c) clearly provides that two conditions must be satisfied in order for a juvenile court to grant a motion to serve a parent by publication in a termination-of-parental-rights case. First, the juvenile court must find that the child has been abandoned in this state. Second, the juvenile court must find, based on evidence presented to it by DHR or by any other person having legal custody of the abandoned child, “that the absent parent or parents are avoiding service of process or their whereabouts are unknown and cannot be ascertained with reasonable diligence.” § 12-15-318(e)(2). If those conditions are met, the juvenile court can then order service by publication as set out in § 12-15-318(d).

In this case, the mother’s appointed attorney did not specifically argue to the juvenile court that DHR had failed to prove that the mother had abandoned the children at issue or that DHR had failed to prove that the mother was avoiding process or that her whereabouts were unknown and could not be ascertained with reasonable diligence. Thus, we cannot consider those issues on appeal to the extent they are raised by the mother in her appellate brief. See J.K. v. Lee County Dep’t of Human Res., 668 So.2d 813, 817 (Ala.Civ.App.1995). Instead, the mother’s appointed attorney argued that DHR had attempted to serve the mother solely by publishing a notice in Lee County, where the juvenile court is located, and not in Muscogee County, Georgia, the county of the mother’s last known permanent address, or Tennessee, the mother’s last known location. Although the mother framed her argument to the juvenile court and this court as arising under Rule 4.3, Ala. R. Civ. P., we conclude that we may address that argument only insofar as it also relates to the requirements of § 12-15-318(d).

By its plain language, § 12-15-318(d) requires service by publication in a newspaper of general circulation not only in the county where the juvenile court is located, but also in the county of the last known address of the parent of the abandoned children. DHR admits that it did not publish notice of the proceedings to the mother in Muscogee County, Georgia, or in any county in Tennessee, both of which are asserted as the last known place of residence of the mother. Hence, it is without dispute that DHR did not meet all the requirements for service by publication set out in § 12-15-318(d).

Just as strict compliance is required regarding the civil rules of service of process, see Johnson v. Hall, 10 So.3d 1031, 1037 (Ala.Civ.App.2008), so must we also require strict compliance with the statute regarding service of process applicable to termination-of-parental-rights proceedings. Those proceedings strike at the very heart of the family unit. See Ex parte Beasley, 564 So.2d 950, 952 (Ala. 1990). In a termination-of-parental-rights case, the state is seeking to irreversibly extinguish a fundamental liberty interest more precious than any property right, the right to associate with one’s child. Santo-sky v. Kramer, 455 U.S. 745, 758-59, 102 S.Ct. 1388, 71 L.Ed.2d 599 (1982). Unlike a judgment divesting a parent of custody, a judgment terminating parental rights is immediate, permanent, and irrevocable. See C.B. v. State Dep’t of Human Res., 782 So.2d 781, 785 (Ala.Civ.App.1998) (“termination of parental rights is an extreme action that cannot be undone; it is permanent”). Out of respect for those fundamental rights, due process must be observed. Santosky, supra.

Because DHR did not strictly comply with § 12 — 15—318(d), we conclude that it did not perfect service by publication on the mother in this case. Accordingly, the juvenile court never obtained personal jurisdiction over the mother and its judgment terminating her parental rights to the children is, therefore, void. An appellate court must dismiss an attempted appeal from a void judgment. See Claridy v. Claridy, 48 So.3d 626, 628 (Ala.Civ.App. 2010). We therefore dismiss this appeal, albeit with instructions for the juvenile court to vacate its void judgment terminating the parental rights of the mother.

APPEAL DISMISSED WITH INSTRUCTIONS.

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

      . We note also that Rule 4.3, Ala. R. Civ. P., which addresses service by publication, provides in subsection (a)(2), in pertinent part, that it "does not supersede specific procedure for publication as set forth in certain statutes governing special proceedings ... and, in such proceedings, the specific statutory procedure for publication and all other requirements appearing therein shall govern.... ”

      . Based on the posture of the case, we do not decide the appropriate place for service of publication. We simply note that DHR failed to properly serve the mother regardless of whether a county in Tennessee or Muscogee County, Georgia, was considered the location of the "last known address” of the mother.


source: Caselaw Access Project

author: THOMAS, Judge. BRYAN, Judge,

license: Public Domain

text:
    Ashley S. CARDEN v. Michael B. CARDEN.
    2090536.
    Court of Civil Appeals of Alabama.
    Dec. 10, 2010.
    Joan-Marie Dean, Huntsville, for appellant.
    D. Milburn Gross, Jr., Meridianville, for appellee.
   THOMAS, Judge.

Ashley S. Carden (“the mother”) appeals from a judgment of the Madison Circuit Court divorcing her from Michael B. Car-den (“the father”) and awarding the parties joint legal and physical custody of the parties’ minor child (“the child”). We reverse and remand with instructions.

The mother and the father were married in 2003. On October 14, 2008, the mother filed a complaint in the trial court seeking a divorce. In her complaint, the mother alleged that the parties had been exercising joint custody of the child, with each party having custody on alternating weeks, during their separation. The mother further alleged that she was not satisfied with the parties’ current joint-custody arrangement, and she requested that the trial court award her primary physical custody of the child. The trial court entered a pendente lite order on October 21, 2008, in which it ordered that the child should reside with the party who was living in the marital residence and that the other party would have visitation with the child.

On October 31, 2008, the mother moved the trial court to hold the father in contempt for violating the pendente lite order. In her motion, the mother alleged, among other things, that she was living in the marital residence and, thus, should have pendente lite custody of the child, that the father had taken the child and would not return the child to the mother, and that the father would not inform the mother of where the child was enrolled in day care.

On November 4, 2008, the father moved the trial court to award him pendente lite custody of the child. In his motion, the father alleged that he had been the child’s primary caregiver before the parties’ separation, that the child was currently in his care, and that the mother had stated that she would not allow the father to exercise visitation with the child if he returned custody of the child to her.

The trial court amended the custody provisions of its pendente lite order on December 19, 2008. In the amended provisions, the trial court awarded the mother pendente lite custody of the child, so long as the mother lived in the home belonging to John and Carol Smith (“the maternal grandparents”). The trial court awarded the father visitation with the child every other weekend, every Wednesday night, and other, specified times for holidays and during the summer. On December 19, 2008, the father requested that the trial court appoint a guardian ad litem for the child; the trial court granted the father’s request.

On January 14, 2009, the mother filed a second motion to hold the father in contempt. The mother alleged in her motion that the father had failed to pay child support as required by the pendente lite order. The mother also alleged that the father had failed to pay his required portion of the first and second mortgages on the marital residence.

On August 31, 2009, the trial court held a hearing on the mother’s divorce complaint and the mother’s two contempt motions. Thereafter, the trial court entered a judgment divorcing the parties and dividing the marital property. In its judgment, the trial court awarded the parties “joint legal and joint physical custody” of the child. The trial court awarded the mother custody of the child at all times except those times awarded to the father in the “Standard Visitation Schedule” that was attached to the judgment. The provisions in the “Standard Visitation Schedule” provided that the father would have visitation with the child every other weekend, every Wednesday night, and certain times for holidays and during the summer. The trial court also ordered the father to pay $520 per month to the mother in child support.

In its judgment, the trial court held the father in contempt of court for what it determined was a willful violation of the trial court’s pendente lite order. The trial court determined that

“after the [father] was served with a copy of the Standing Pendente Lite Order, the [father] took the parties’ child, moved her residence to Decatur, Alabama, keeping her hidden from the [mother] and the Court, enrolling her in two (2) different day care centers, all in an effort to prevent the [mother] from contacting the child or having access to her, pendente lite. As a result, the [mother] was deprived access to and contact with the child from October 24, 2008[,] until December 16, 2008.”

The trial court ordered the father to be incarcerated for 49 days, with 42 of the days suspended for 2 years, provided that the father complied with all further orders of the trial court. The trial court also found that the father’s mother was an active participant in assisting the father in his efforts to prevent the mother from having access to the child.

Additionally, the trial court found the father in contempt for failing to pay child support or to contribute to the payment of the first and second mortgages on the marital residence, as required by the pen-dente lite order. The trial court ordered the father to be incarcerated for 20 days and to pay the mother $2,709.20.

The father subsequently filed a post-judgment motion, moving the trial court to alter or amend its judgment or, in the alternative, moving the trial court for a new trial. Among other things, the father requested that the trial court award the father additional custodial periods with the child. The mother responded to the father’s postjudgment motion, arguing that the father’s custodial time should not be increased. The trial court held hearings on the father’s postjudgment motion on November 10, 2009, and on December 9, 2009.

The trial court granted the father’s post-judgment motion in part, amending the custody award in its judgment. In its amended judgment, the trial court awarded the father and the mother equal custody of the child, with each party having custody on alternating weeks, and eliminated the father’s child-support obligation. The trial court also vacated the provision in its judgment finding the father in contempt for failing to contribute toward the payment of the first and second mortgages on the marital residence and for failing to pay child support under the pendente lite order.

The mother subsequently filed a post-judgment motion, moving the trial court to alter, amend, or vacate its amended judgment. In her motion, the mother argued that the trial court had exceeded its discretion in awarding joint physical custody of the child and in failing to award the mother child support. The mother also argued that the trial court’s joint-custody award did not comply with § 30-3-153, Ala.Code 1975, because, she said, it did not contain an adequate parenting plan. The mother requested a hearing on her postjudgment motion. The mother appealed to this court on March 1, 2010; the mother’s post-judgment motion was denied by operation of law on May 17, 2010. See Rule 59.1, Ala. R. Civ. P.

The mother raises three arguments on appeal: (1) that the trial court erred in awarding the parties joint physical custody of the child; (2) that the trial court’s award of joint physical custody did not comply with § 30-3-153; and (3) that the trial court erred because it did not hold a hearing on her postjudgment motion. Because we find the mother’s argument regarding the trial court’s failure to hold a hearing on the mother’s postjudgment motion dispositive, we pretermit discussion of the mother’s remaining arguments on appeal.

The mother argues on appeal that the trial court erred when it failed to hold a hearing on her postjudgment motion.

“Rule 59(g), Ala. R. Civ. P., provides that post-judgment motions ‘shall not be ruled upon until the parties have had an opportunity to be heard thereon.’ We have said that if a hearing is requested, it must be granted. Staarup v. Staarup, 537 So.2d 56 (Ala.Civ.App.1988). On appeal, however, if an appellate court determines that there is no probable merit to the motion, it may affirm based on the harmless error rule. Walls v. Bank of Prattville, 554 So.2d 381 (Ala. 1989).”

Hill v. Hill, 681 So.2d 617, 619 (Ala.Civ. App.1996).

In her postjudgment motion, the mother argued, in part, that the trial court’s judgment awarding joint custody was in error because, she said, it did not contain a parenting plan that complied with the requirements of § 30-3-153. Section 30-3-153 provides:

“(a) In order to implement joint custody, the court shall require the parents to submit, as part of their agreement, provisions covering matters relevant to the care and custody of the child, including, but not limited to, all of the following:
“(1) The care and education of the child.
“(2) The medical and dental care of the child.
“(3) Holidays and vacations.
“(4) Child support.
“(5) Other necessary factors that affect the physical or emotional health and well-being of the child.
“(6) Designating the parent possessing primary authority and responsibility regarding involvement of the minor child in academic, religious, civic, cultural, athletic, and other activities, and in medical and dental care if the parents are unable to agree on these decisions. The exercise of this primary authority is not intended to negate the responsibility of the parties to notify and communicate with each other as provided in this article.
“(b) If the parties are unable to reach an agreement as to the provisions in subsection (a), the court shall set the plan.”

The father argues that the provisions in the “Standard Parenting Clauses” section of the amended judgment substantially address the requirements of 30-3-153. The trial court’s amended judgment does address holidays, vacations, and child support. However, the provisions to which the father refers do not state which parent is given primary authority and responsibility in situations under § 30 — 3—153(a)(6), when the parents are unable to agree on those decisions. Section 10 of the “Standard Parenting Clauses” in the trial court’s judgment states:

“Both parents agree that they shall discuss and consider the wishes of the other parent in all major decisions to be made regarding the minor children, including but not limited to medical, dental, religious, educational and recreational activities. Provided, however, that in the event of a dispute between the parties, the custodial parent shall make the final decision on any such issue.”

(Emphasis added.)

The trial court’s amended judgment, which created a true joint-custody arrangement with each parent having equal time with the child, does not designate which parent is considered the custodial parent. Thus, it is not clear which parent would have the final decision on the matters listed in section 10 if the parents are unable to reach an agreement concerning those matters. The trial court’s judgment, therefore, does not meet the requirements of § 30-3-153. See Ford v. Ford, 3 So.3d 872, 875 (Ala.Civ.App.2008). Because the trial court did not order the parties to submit to the trial court a parenting plan meeting the requirements of § 30-3-153(a) or, if the parties were unable to agree to the parenting plan, did not set a parenting plan, pursuant to § 30-3-153(b), there is probable merit in at least one of the arguments raised in the mother’s postjudgment motion.

We reverse the denial of the mother’s postjudgment motion, and we remand the cause to that court with instructions for the trial court to hold a hearing on the mother’s postjudgment motion.

REVERSED AND REMANDED WITH INSTRUCTIONS.

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

BRYAN, J., concurs in the result, with writing.

BRYAN, Judge,

concurring in the result.

I concur in the main opinion insofar as it reverses the judgment of the Madison Circuit Court (“the trial court”). However, I would have decided the case on the merits instead of remanding the case with instructions to the trial court to conduct a hearing on the postjudgment motion filed by Ashley S. Carden. See J.W. v. C.B., 56 So.3d 693 n. 2 (Ala.Civ.App.2010); Sullivan & Wills Real Estate, L.L.C. v. Cruce, [Ms. 2090112, April 23, 2010] — So.3d - (Ala.Civ.App.2010); Homady Truck Lines, Inc. v. Howard, 985 So.2d 469 (Ala. Civ.App.2007); Hall v. Hall, 895 So.2d 299, 305 (Ala.Civ.App.2004); and Hull v. Hull, 887 So.2d 904, 910 (AIa.Civ.App.2003).

      . The mother filed her notice of appeal before her postjudgment motion was denied by operation of law. Therefore, the mother’s notice of appeal was held in abeyance pending the disposition of her postjudgment motion. See Rule 4(a)(5), Ala. R.App. P.

      . In concluding that one of the mother’s arguments has probable merit, we do not hold that the mother's postjudgment motion should be granted. Rather, we hold only that there is sufficient probable merit to require the trial court to hold a hearing on the mother’s motion. Additionally, we express no opinion as to the probable merit of the other arguments the mother raised in her postjudgment motion.


author: PER CURIAM. WINDOM, Judge,

text:
    Tyler Richard CHAPMAN v. STATE of Alabama.
    CR-07-1360.
    Court of Criminal Appeals of Alabama.
    Aug. 7, 2009.
    Rehearing Applications Denied Nov. 6, 2009.
    Defendant’s Certiorari Petition Denied Jan. 15, 2010 Alabama Supreme Court 1090279.

      Jeffry Cali Armstrong, Daphne, for appellant.
    Troy King, atty. gen., and Jean-Paul M. Chappell, asst. atty. gen., for appellee.
   PER CURIAM.

Tyler Richard Chapman was indicted on one count of burglary in the third degree, a violation of § 13A-7-7, Ala.Code 1975, for unlawfully entering or remaining in a building that was the property of Sarah Bodle, and one count of criminal surveillance, a violation of § 13A-11-32, Ala.Code 1975, for secretly observing Sarah Bodle’s activities while trespassing in the attic or roof area to her apartment. Following a jury trial, Chapman was convicted of the charged offense of third-degree burglary, and of attempted criminal surveillance, a violation of §§ 13A-4-2 and 13A-11-32. He was sentenced to seven years’ imprisonment on the burglary conviction; that sentence was suspended, and he was ordered to serve one year and one day in prison, followed by three years’ probation. He was sentenced to 90 days in the Baldwin County Corrections Center for the attempted-criminal-surveillance conviction. Chapman was also ordered to pay assorted fines and court costs.

The evidence presented at trial tended to show the following. Sarah Bodle lived in an apartment in the Robertsdale Village Apartments with her husband, Josh Bodle; they moved into the apartment in March 2004. The apartment they lived in had two stories, and there was an attic space above the apartment. Sarah testified that Chapman had never been invited into their apartment and that he had not been given permission to enter the attic space above their apartment.

Sarah testified that she heard noises frequently during the months she and Josh lived in the apartment, usually on weekday mornings after Josh had left for work and while she was in the shower. The noises sounded to her like someone was in the room with her. Josh testified that Sarah told him almost daily that she had heard noises while she was getting ready in the morning after he had left for work. Sarah stated that on one occasion while she and Josh were in bed, she heard a loud noise and made Josh check the apartment. Josh heard the noise, too, and he testified that he checked the apartment but found no intruders.

Josh and Sarah testified that the air conditioning did not work well on the second floor of their apartment. Sarah contacted the apartment manager about the problem, but the problem was never resolved before the incident underlying Chapman’s convictions occurred.

When Josh and Sarah returned to the apartment one evening in August 2004, they noticed a footprint-shaped hole or crack in their ceiling at the top of the stairs to the second floor. Sarah testified that she then also observed “popcorn” ceiling material from around the ceiling vents in the bathroom and the master bedroom on the floor beneath the vents. Josh looked in the attic space that evening to determine whether the attic space above their apartment was connected to Chapman’s attic space; Josh said the spaces were not connected. The next day, Sarah contacted the apartment manager, Kim Barnett, about the crack in the ceiling. Sarah testified on cross-examination that they did not know whether their apartment lease included the attic space but that she thought they were allowed to store items in the attic.

Barnett testified that she went to the Bodies’ apartment and saw the footprint-shaped crack in the ceiling. She testified that the lease agreement did not include the attic space above the Bodies’ apartment but that tenants sometimes stored items in the attic space above their apartments. On cross-examination, Barnett testified that the Bodies had “rented that entire apartment” and that tenants were not told that they could not put anything in the attic above their apartments. (R. 110.) On redirect examination, Barnett testified that a tenant could reasonably believe that the attic space above the apartment was the tenant’s.

Barnett testified that a firewall in the attic separated the attic area of one apartment from the apartment next door and that because of that firewall, no other tenant would have had access to the attic space above the Bodies’ apartment unless the Bodies allowed the tenant into the attic or unless the tenant broke through the firewall.

The maintenance employee for the apartment complex, Basil Chavers, testified that the attic space and the ductwork above the Bodies’ apartment was intact and undisturbed when the Bodies moved in. Chavers testified that only the tenants living in the apartment below their attic spaces would have access to the attic space, unless someone broke through the firewall that separates the attic space of the apartments. Chavers testified that, before this incident, the Bodies had complained that the air conditioning did not work properly and that the second floor of the apartment did not cool as well as the first floor. Sarah had also reported to Chavers that some ceiling insulation had fallen on several occasions. Chavers testified that he saw some of the insulation that had fallen in the areas of the bathroom, hall, and master bedroom.

After the Bodies complained about the footprint-shaped crack in their ceiling, he went to the apartment and saw what appeared to be the imprint of “a perfect footprint” in the ceiling. (R. 117.) The Bodies said that they had not been in the attic. Chavers looked in the attic and saw a large hole in the firewall between the Bodies’ apartment and the apartment next door; he also saw that the ductwork in the areas above the bathroom and the master bedroom had been loosened. Chavers also saw that the insulation from the firewall to the areas above the bedroom and master bathroom of the Bodies’ apartment had been compressed so that it had trails through it. It was apparent to him that the firewall between the two attic spaces had been broken from Chapman’s side of the attic, Chavers said. When he looked down through the ductwork and vents he could see most of the Bodies’ bathroom and approximately three-quarters of their bedroom.

Chavers said that he and Barnett went next door to Chapman’s apartment. It was apparent to him that someone had been walking on Chapman’s ceiling also, because the ceiling was cracked in the area around the attic access. Chavers said that he and Barnett then contacted the police.

Anthony Dobson of the Robertsdale Police Department testified that he was called to the Bodies’ apartment and that he went into the attic space above their apartment. Investigator Dobson testified that the firewall that separated the apartments, which is made out of drywall, had been cut and knocked down and that it appeared that the damage originated from Chapman’s side of the attic. Investigator Dobson also stated that he observed trails in the insulation that went from the firewall to two ceiling vents in the Bodies’ apartment. The ductwork could easily be moved, he said, and when he moved it he could see through the vents into the bathroom and bedroom below.

Sergeant Rex Bishop of the Robertsdale Police Department testified that he spoke to Chapman at the police department after the evidence in the attic was discovered. Chapman agreed to give a statement, and the statement was admitted into evidence. Sergeant Bishop read Chapman’s statement for the jury:

“I moved into the above apartment in March. Later that month, I did the stupidest thing and went into the attic, and then pulled down the walls to get to the neighbor’s attic. I removed the duct work over the bathroom and main bedroom, in hopes to see something later when the neighbors returned. I got scared after I realized what I had done, and I left, never to return.
“Recently I became a Christian and follower of God and have been feeling guilty for the things I tore up in the attic. So on August the 18th, the neighbors left and I went up to fix all my wrong doings. I was trying to fix the duct work for good, and I stepped in a weak part of the floor, and it pushed in. I got scared and just tried to fix the wall, but it wouldn’t stay up. My girlfriend has been living with me and has always been with me since June. I never had a chance to fix it until the 18th. I am very ashamed of the few hours I was not in control of my hormones. But in trying to fix my mistake, I made one, which, rightfully so, lifted the guilt from my shoulders. I am truly sorry from my mistakes and I pray for forgiveness.”

(R. 144-45.)

Sergeant Bishop testified that he had looked into the attic and that Chapman’s statement about the number of times he had been in the Bodies’ attic was not consistent with Sergeant Bishop’s observation of the pathways in the insulation in the attic. (R. 146,149.)

I.

Chapman first argues that the evidence failed to show that he entered or remained unlawfully on property belonging to Sarah Bodle. Specifically, he contends that, although he was in the attic space above Sarah’s apartment, the indictment stated that only his foot pushed through the attic space above Sarah’s apartment and that the evidence was insufficient to prove that the attic space was covered by Sarah’s lease agreement.

“ ‘ “The test used in determining the sufficiency of evidence to sustain a conviction is whether, viewing the evidence in the light most favorable to the prosecution, a rational finder of fact could have found the defendant guilty beyond a reasonable doubt.”’ Nunn v. State, 697 So.2d 497, 498 (Ala.Crim.App.1997) (quoting O’Neal v. State, 602 So.2d 462, 464 (Ala.Crim.App.1992)). ‘ “When there is legal evidence from which the jury could, by fair inference, find the defendant guilty, the trial court should submit [the case] to the jury, and, in such a case, this court will not disturb the trial court’s decision.’” Farrior v. State, 728 So.2d 691, 696 (Ala.Crim.App. 1998) (quoting Ward v. State, 557 So.2d 848, 850 (Ala.Crim.App.1990)). ‘The role of appellate courts is not to say what the facts are. Our role ... is to judge whether the evidence is legally sufficient to allow submission of an issue for decision [by] the jury.’ Ex parte Bankston, 358 So.2d 1040, 1042 (Ala. 1978).”

Ware v. State, 949 So.2d 169, 175-76 (Ala. Crim.App.2006). See Ex Parte J.C., 882 So.2d 274, 277 (Ala.2003). Further, in determining whether the evidence is sufficient to support the verdict of the jury and the judgment of the trial court, this Court must accept as true the evidence presented by the State, view it in a light most favorable to the State, and accord the State all legitimate inferences therefrom. Rowe v. State, 662 So.2d 1227, 1229 (Ala. Crim.App.1995). 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. Cumbo 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). Finally, it is well settled that “[t]he weight and probative value to be given to the evidence, the credibility of the witnesses, the resolution of conflicting testimony, and inferences to be drawn from the evidence are for the jury.” Smith v. State, 698 So.2d 189, 214 (Ala. Crim.App.1996), aff'd, 698 So.2d 219 (Ala.1997).

“In 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 968, 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).

The evidence revealed that Chapman, a next-door neighbor of the Bodies’, cut a hole in the firewall separating the two apartments to gain access to the attic space above the Bodies’ apartment. Evidence was presented indicating that a walking trail where someone had walked was visible in the attic insulation. The insulation around the ductwork over the Bodies’ apartment had been pulled back so that a better view of their bedroom and bathroom could be had. Sarah testified that she had been hearing noises in the attic space above the apartment on a daily basis, especially when she was in the shower or in her bedroom and that Josh immediately notified the apartment manager when they discovered a “footprint-shaped crack” in the ceiling and fallen ceiling material in their master bedroom. The testimony further indicated that the attic space was intact and undisturbed when the Bodies moved in; that after the Bodies’ complaint, maintenance personnel with the apartment complex discovered that the attic space had been tampered with, so that an individual could look through the duct-work and vents to see into the apartment below; and that a subsequent investigation by law-enforcement investigators revealed that the damage to the sheetrock and firewall originated from Chapman’s side of the firewall.

“To constitute an entry, there must be a penetration of the space within the building by some part of the body of the defendant, or an accomplice of the defendant, or by an instrument inserted for the purpose of perpetrating a felony in the building.” Perry v. State, 407 So.2d 183, 185 (Ala.Crim.App.1981). The State presented ample evidence indicating that Chapman entered the Bodies’ attic space with the intent to spy on Sarah.

Moreover, “ ‘[i]n Alabama, “burglary, like trespass, is an offense against the possession, and hence the test for the purpose of determining in whom the ownership of the premises should be laid in an indictment is not the title, but the occupancy or possession at the time the offense was committed.” ’ ” South v. City of Mountain Brook, 688 So.2d 292, 296 (Ala. Crim.App.1996). See also § 13A-7-1(2), Ala.Code 1975. Consequently, Chapman’s argument that the indictment was fatal because it alleged that the property belonged to Sarah Bodle although it did not belong to her is without merit based upon the above-stated legal authority. The State’s evidence was sufficient to sustain Chapman’s convictions, and any conflicts in the evidence and credibility choices were for the jury to resolve. Therefore, Chapman is not entitled to any relief on this argument.

ii.

Chapman also argues that, under the circumstances of this case, convictions for both attempted criminal surveillance and third-degree burglary violated double-jeopardy principles. Specifically, Chapman states: “[T]o be found guilty of [burglary] and [attempted criminal surveillance] requires the exact same proof of the exact same elements: Trespassing with the intent to commit criminal surveillance.” (Chapman’s brief at p. 18.) We agree.

“Under the principles of double jeopardy, ‘[t]he applicable rule is that, where the same act or transaction constitutes a violation of two distinct statutory provisions, the test to be applied to determine whether there are two offenses or only one, is whether each provision requires proof of a fact which the other does not.’ Blockburger v. United States, 284 U.S. 299, 304 (1932). Therefore, ‘ “[a] single act may be an offense against two statutes; and if each statute requires proof of an additional fact which the other does not, an acquittal or conviction under either statute does not exempt the defendant from prosecution and punishment under the other.”’ Id. (quoting Gavieres v. United States, 220 U.S. 338, 342 (1911), in turn quoting Morey v. Commonwealth, 108 Mass. 433 (1871)).”

Ex parte Dixon, 804 So.2d 1075, 1078-79 (Ala.2000).

Third-degree burglary is defined in § 13A-7-7, Ala.Code 1975, as follows:

“(a) A person commits the crime of burglary in the third degree if he knowingly enters or remains unlawfully in a building with intent to commit a crime therein.”

(Emphasis added.)

Count I of the indictment charged that Chapman

“did, knowingly enter or remain unlawfully in a building, the property of Sarah Bodle, a better description of the owner being otherwise unknown to the Grand Jury, with the intent to commit a crime therein, to-wit: Criminal Surveillance, in violation of § 13A-7-7 of the Code of Alabama.”

(C. 15.) (Emphasis added.)

Criminal surveillance is defined in § 13A-11-32, Ala.Code 1975, as follows:

“(a) A person commits the crime of criminal surveillance if he intentionally engages in surveillance while trespassing in a private place.

(Emphasis added.)

Count II of the indictment charged that Chapman

“did intentionally secretly observe the activities of Sarah Bodle for the purpose of spying on and invading the privacy of the said Sarah Bodle while trespassing in a private place, to-wit: the attic and/or roof area to her apartment, in violation of § 13A-11-32 of the Code of Alabama[.]”

(C. 15.) (Emphasis added.)

Definitions also relevant to this analysis are:

“(2) Private place. A place where one may reasonably expect to be safe from casual or hostile intrusion or surveillance, but such term does not include a place to which the public or a substantial group of the public has access.
“(3) Surveillance. Secret observation of the activities of another person for the purpose of spying upon and invading the privacy of the person observed.”

§ 13A-11-30, Ala.Code 1975.

Finally, a person is guilty of trespassing if he or she knowingly enters or remains unlawfully in a building. § 13A-7-3, Ala. Code 1975.

Chapman correctly argues that, under the facts of this case, each crime of which he was convicted required proof that he was trespassing in a private place belonging to Sarah Bodle and that, while he was trespassing, he had the intent to commit criminal surveillance. Because count I of the indictment charged Chapman with burglary of a building belonging to Sarah Bodle, and because Sarah lived in a multi-occupant building, all parts of her apartment constituted a “private place,” as that term is defined by statute. Therefore, the elements of burglary, as it was charged, in this case, were the same elements necessary to prove attempted criminal surveillance. Proof of the burglary did not require proof of an additional element that was not required to prove attempted criminal surveillance. Chapman’s conviction for attempted criminal surveillance, however, required proof of the additional element of an overt act toward criminal surveillance. See § 13A-4-2(a), Ala.Code 1975 (“A person is guilty of an attempt to commit a crime if, with the intent to commit a specific offense, he does any overt act towards the commission of such offense.”). Therefore, the principles set forth in Blockburger v. United States, 284 U.S. 299, 304, 52 S.Ct. 180, 76 L.Ed. 306 (1932), were violated because each crime, as it was charged here, did not require proof of an additional fact that the other crime did not require.

Furthermore, § 13A-4-5(b), Ala.Code 1975, provides that a defendant may not be convicted of both the actual commission of an offense and of an attempt to commit the offense when those convictions are based on the same course of conduct. Analogously, Chapman cannot be convicted of the completed crime of third-degree burglary and of attempted criminal surveillance when those crimes are based on the same course of conduct and require proof of the same elements. Thus, we hold that, based on the specific facts of this case, Chapman’s convictions for both third-degree burglary and attempted criminal surveillance violated double-jeopardy principles. Therefore, we must remand this case for the trial court to vacate Chapman’s conviction and sentence for attempted criminal surveillance.

For the above-stated reasons, we affirm Chapman’s conviction and sentence for third-degree burglary. However, we remand this case to the trial court for that court to vacate Chapman’s conviction and sentence for attempted criminal surveillance.

AFFIRMED AS TO CONVICTION FOR THIRD-DEGREE BURGLARY; REVERSED AND REMANDED AS TO CONVICTION FOR ATTEMPTED CRIMINAL SURVEILLANCE.

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

WINDOM, J., concurs in part and dissents in part, with opinion, which WISE, P.J., joins.

WINDOM, Judge,

concurring in part and dissenting in part.

I agree with the majority’s holding that the State presented sufficient evidence to sustain Chapman’s conviction for third-degree burglary, a violation of § 13A-7-7, Ala.Code 1975. For the reasons that follow, however, I disagree with the majority’s holding that Chapman’s convictions for third-degree burglary, a violation of § 13A-7-7, Ala.Code 1975, and attempted criminal surveillance, violations of §§ 13A-4-2 and 18A-11-32, Ala.Code 1975, violate the Double Jeopardy Clause of the Fifth Amendment to the United States Constitution. I also disagree with the majority’s holding that these two convictions violate the merger principle codified in § 13A-4-5, Ala. Code 1975.

The facts relevant to the disposition of these issues are as follows. In 2004, Chapman lived in the Robertsdale Village Apartments next door to Sarah and Josh Bodle. The apartments in the building had two stories and an attic. The attics between apartments were separated by a firewall.

In late March of 2004, Chapman went into the attic of his apartment, removed some of the wall separating his attic from the Bodies’ attic, and entered the Bodies’ attic. Once inside the Bodies’ attic, Chapman went to the areas above the Bodies’ bedroom and bathroom. Chapman then removed the air conditioner ductwork which connected the bedroom and bathroom air conditioner vents to the air conditioner in order to enable him to see the Bodies through the air conditioner vent holes.

Based on these facts, Chapman was convicted of third-degree burglary, a violation of § 13A-7-7, Ala.Code 1975, and attempted criminal surveillance, violations of §§ 13A-4-2 and 13A-11-32.

I.

The majority holds that Chapman’s convictions for third-degree burglary and attempted criminal surveillance violate the Double Jeopardy Clause of the Fifth Amendment, contending that these two crimes required the same proof to establish the same elements. I respectfully disagree. “A person commits the crime of burglary in the third degree if he knowingly enters or remains unlawfully in a building with intent to commit a crime therein.” § 13A-7-7, Ala.Code 1975. “A person commits the crime of criminal surveillance if he intentionally engages in surveillance while trespassing in a private place.” § 13A-11-32(a), Ala.Code 1975. Section 13A-7-4(a), Ala.Code 1975, provides: “A person is guilty of criminal trespass in the third degree when he knowingly enters or remains unlawfully in or upon premises.”

“Section 13A-4-2(a), Ala.Code 1975, states: ‘A person is guilty of an attempt to commit a crime if, with the intent to commit a specific offense, he does any overt act towards the commission of such offense.’ ” J.F.C. v. City of Daphne, 844 So.2d 608, 609 (Ala.Crim.App.2002). An overt act is “something done that directly moves towards the crime, and brings the accused nearer to its commission .... ” Skinner v. State, 843 So.2d 820, 825 (Ala. Crim.App.2002) (citations omitted).

The Supreme Court of the United States has held that the Double Jeopardy Clause of the Fifth Amendment contains three protections: “It protects against a second prosecution for the same offense after acquittal. It protects against a second prosecution for the same offense after conviction. And it protects against multiple punishments for the same offense.” North Carolina v. Pearce, 395 U.S. 711, 717, 89 S.Ct. 2072, 28 L.Ed.2d 656 (1969)(overruled on different grounds). See Schiro v. Farley, 510 U.S. 222, 229, 114 S.Ct. 783, 127 L.Ed.2d 47 (1994) (reaffirming the three protections of the Double Jeopardy Clause). “These protections stem from the underlying premise that a defendant should not be twice tried or punished for the same offense.” Schiro, 510 U.S. at 229 (citing United States v. Wilson, 420 U.S. 332, 339, 95 S.Ct. 1013, 43 L.Ed.2d 232 (1975)). The Alabama Supreme Court has held that the Double Jeopardy Clause of Art. I. § 9 Alabama Constitution 1901, applies to protect only those three areas enumerated in Pearce. See Ex parte Wright, 477 So.2d 492, 493 (Ala.1985); Adams v. State, 955 So.2d 1037, 1098 (Ala.Crim.App.2003), overruled on other grounds, 955 So.2d 1106 (Ala.2005) (holding that Adams, who was 17 years old at the time of the offense, is not eligible for a sentence of death).

In Blockburger v. United States, the Supreme Court of the United States established the “same elements” test for determining whether two charges constitute the “same offenses” in violation of the Double Jeopardy Clause of the Fifth Amendment. 284 U.S. 299, 304, 52 S.Ct. 180, 76 L.Ed. 306 (1932). Under the Blockburger test, “where the same act or transaction constitutes a violation of two distinct statutory provisions, the test to be applied to determine whether there are two offenses or only one is whether each provision requires proof of a fact which the other does not.” Id. (emphasis added). This court has held that “[t]he constitutional provision that no one shall be put in jeopardy twice for the same offense is broad enough to mean that no one can lawfully be punished twice for different offenses growing out of the same state of facts.” McClellan v. State, 484 So.2d 1150, 1155 (Ala.Crim.App.1985).

“The Blockburger test is implicated only ‘where the same act or transaction constitutes a violation of two distinct statutory provisions.’” United States v. Schales, 546 F.3d 965, 978 (9th Cir.2008) (quoting Blockburger, 284 U.S. at 304). Thus, the starting point under Blockburger's same-elements test is to determine whether the defendant’s two convictions were based on the “same act or transaction.” Blockburger, 284 U.S. at 304. See People v. Pressley, 160 Ill.App.3d 858, 112 Ill.Dec. 312, 513 N.E.2d 921, 927 (1987) (holding that multiple convictions based on different acts do not violate the Double Jeopardy Clause). Where separate acts or distinct facts establish two crimes, the Double Jeopardy Clause is not implicated. Cf. Duffy v. State, 789 P.2d 821, 831 (Wyo. 1990) (holding that the defendant’s convictions for armed robbery and conspiracy to commit burglary did not violate double-jeopardy principles because the armed robbery occurred after the conspiracy was completed, i.e., “separate convictions could be sustained on the basis of a finding that separate evidence supported each charge”).

In this case, Chapman’s convictions for third-degree burglary and attempted criminal surveillance do not violate the Double Jeopardy Clause because these two convictions were based on separate acts and because “separate evidence supported each charge.” Duffy, 789 P.2d at 831.

The State’s evidence established that Chapman removed the firewall separating the attic of his apartment and the attic of the Bodies’ apartment and entered the Bodies’ apartment with the intent to commit criminal surveillance. At that point, the crime of third-degree burglary was complete. See § 13A-7-7, Ala.Code 1975 (“A person commits the crime of burglary in the third degree if he knowingly enters or remains unlawfully in a building with intent to commit a crime therein.”).

The State also presented evidence establishing that after the burglary was complete, Chapman committed additional acts in furtherance of the crime of criminal surveillance. Specifically, Chapman walked across the Bodies’ attic and removed the air-conditioner ductwork from the air-conditioner vents to enable him to see into the Bodies’ bedroom and bathroom. The acts of removing the ductwork from two vents occurred after the burglary was complete and establish the overt-act element of attempted criminal surveillance.

Accordingly, the overt act necessary to establish the crime of attempted criminal surveillance was a separate act from the completed burglary and was proved by evidence separate and distinct from the evidence establishing the burglary. See Yparrea v. Dorsey, 64 F.3d 577, 580 (10th Cir.1995) (holding that a defendant’s double-jeopardy rights are not violated in a prosecution for burglary and larceny because, once the defendant entered the building with the intent to commit a crime, the burglary was complete; thus, the larceny occurred after the burglary had been completed and was established by separate facts); Moser v. Com., 799 S.W.2d 21, 22 (Ky.1990) (holding that convictions for burglary and criminal acts perpetrated after the burglary was complete stem from different acts and do not violate double-jeopardy principles). Because the facts establishing the overt act necessary to convict Chapman of attempted criminal surveillance were separate from and occurred after the acts establishing the third-degree burglary, Chapman’s convictions for attempted criminal surveillance and third-degree burglary do not violate the Double Jeopardy Clause of the Fifth Amendment.

The Double Jeopardy Clause does not bar prosecution of burglary and an attempted crime when the overt act supporting the attempted crime is established by acts that occurred after the burglary had been completed and, thus, are separate from the acts establishing the burglary. Cf. Arnold, v. State, 668 So.2d 111, 112-113 (Ala.Crim.App.1995) (holding that convictions for burglary and attempted murder do not violate double-jeopardy principles). Accordingly, I respectfully dissent.

II.

The majority also holds that Chapman’s convictions for third-degree burglary and attempted criminal surveillance violate the merger doctrine codified in § 13A-4-5(b), Ala.Code 1975. Specifically, the majority holds that “ § 13A-4-5(b), Ala.Code 1975, provides that a defendant may not be convicted of both the actual commission of an offense and of an attempt to commit the offense when those convictions are based on the same course of conduct. Analogously, Chapman cannot be convicted of the completed crime of third-degree burglary and of attempted criminal surveillance when those crimes are based on the same course of conduct and require proof of the same elements.” 64 So.3d at 1128. I respectfully disagree.

Section 13A-4-5(b)(1), Ala.Code 1975, states, in pertinent part: “A person may not be convicted on the basis of the same course of conduct of both the actual commission of an offense and ... [a]n attempt to commit the offense.” The commentary to § 13A-4-5(b), Ala.Code 1975, explains: “Subsection (b) merges the inchoate crime into the conviction for the substantive crime to the extent that it bars a double conviction for both the substantive crime and an attempt .... ” Commentary, § 13A-4-5(b), Ala.Code 1975.

Section 13A-4-5(b), Ala.Code 1975, establishes that an inchoate offense merges with the completed underlying substantive offense that forms the basis for that inchoate offense. See Williams v. State, 830 So.2d 45, 48 (Ala.Crim.App.2001) (emphasis added) (stating “[s]ection 13A-4-5(b)(3) merges the inchoate offense into the conviction for the substantive offense to the extent that it bans a double conviction for both the substantive offense and a conspiracy to commit that offense”). In other words, § 13A-4-5(b)(2), Ala.Code 1975, bars prosecution for an inchoate offense such as an attempted offense and a completed offense only when the offense the defendant attempts to complete is the same as the completed offense. For instance, in Perkins v. State, this court held that § 13A-4-5(b)(3), Ala.Code 1975, bars prosecution for the inchoate offense of conspiracy to commit theft and the completed offense of theft based on the same facts. 715 So.2d 888, 892 (Ala.Crim.App.1997). Section 13A-4-5(b), Ala.Code 1975, does not, however, bar prosecution of an inchoate offense (an attempted or intended offense) and a completed offense when the two offenses are not the same.

In the present case, Chapman was convicted of attempted criminal surveillance and of burglary. The substantive offense that formed the basis of the attempt conviction is criminal surveillance, and the completed offense is burglary. Therefore, the court must determine whether the substantive offense of criminal surveillance and burglary are the same offense. If these two offenses are the same, then the merger doctrine contained in § 13A-4-5(b), Ala.Code 1975, applies. If these two offenses are not the same, then § 13A-4-5(b) does not apply.

To determine whether criminal surveillance and burglary are the same offense, we apply the familiar Blockbwrger test which establishes that “where the same act or transaction constitutes a violation of two distinct statutory provisions, the test to be applied to determine whether there are two offenses or only one is whether each provision requires proof of a fact which the other does not.” Id. (emphasis added). “A person commits the crime of burglary in the third degree if he knowingly enters or remains unlawfully in a building with intent to commit a crime therein.” § 13A-7-7, Ala.Code 1975 (emphasis added). “A person commits the crime of criminal surveillance if he intentionally engages in surveillance while trespassing in a private place.” § 13A-11-32(a), Ala. Code 1975. Applying Blockbwrger ⅛ same-elements test, these two offenses are not the same. Burglary requires the State to prove that the defendant entered or remained unlawfully in a building. § 13A-7-7, Ala.Code 1975. Criminal surveillance does not require that the defendant enter or remain in a building; instead, it requires the defendant enter or remain on premises. §§ 13A-ll-32(a), 13A-7-4(a), Ala.Code 1975. Criminal surveillance requires the State to prove a surveillance element that burglary does not contain. Accordingly, these two offenses are not the same, and the merger doctrine codified in § 13A-4-5(b), Ala.Code 1975, does not apply-

Under the majority’s holding, an attempt crime would merge with a separate and unrelated completed crime. I do not believe that § 13A-4-5(b), Ala.Code 1975, operates to bar prosecutions of an inchoate offense and a completed offense that does not form the basis of the inchoate offense. Accordingly, the majority incorrectly holds that § 13A-4-5(b), Ala.Code 1975, applies to a prosecution for attempted criminal surveillance and burglary.

Based on my analysis of the Fifth Amendment and the merger doctrine codi-Red in § 13A-4-5(b), Ala.Code 1975, I believe that the majority incorrectly holds that Chapman’s conviction for attempted criminal surveillance must be reversed. Therefore, I respectfully dissent.

      . The defect in the ceiling was referred to as both a "hole” and a "crack" during the trial. (R. 75, 76, 84, 108.)

      . Before trial, Chapman moved for dismissal of either count I or count II, and he argued that the charges were multiplicitous. Although the prosecutor argued that each crime required an element that the other did not, he also said: "Now, he can be convicted of both, but he can’t be sentenced for both.” (R. 70.) The prosecutor's comment appears to indicate his understanding that the elements of the crimes overlapped.

      . The majority states that "a person is guilty of trespassing if he knowingly enters or unlawfully remains in a building." 64 So.3d at 1127 (emphasis added). Although it is correct that a person is guilty of criminal trespass if that person unlawfully enters a building, criminal trespassing does not require the defendant to enter into a building; instead, it requires only that the defendant unlawfully enter a premises. § 13A-11-32(a), Ala.Code 1975; § 13A-7-4(a), Ala.Code 1975, ("A person is guilty of criminal trespassing in the third degree when he knowingly enters or remains unlawfully in or upon premises." (emphasis added)).


author: SMITH, Justice. PARKER, Justice SHAW, Justice

text:
    Ex parte State of Alabama. (In re Tyler Richard CHAPMAN v. STATE of Alabama).
    1090277.
    Supreme Court of Alabama.
    Sept. 30, 2010.
    Troy King, atty. gen., and Jean-Paul M. Chappell, asst. atty. gen., for petitioner.
    Submitted on petitioner’s brief only.
   SMITH, Justice.

Tyler Richard Chapman was convicted of burglary in the third degree, a violation of § 13A-7-7, Ala.Code 1975, and of attempted criminal surveillance, a violation of §§ 13A-4-2 and 13A-11-32, Ala.Code 1975. He was sentenced to 7 years’ imprisonment on the burglary conviction and to 90 days’ imprisonment in the Baldwin County Corrections Center for the attempted-eriminal-surveillance conviction. Chapman appealed his convictions and sentences to the Court of Criminal Appeals. That court affirmed the conviction and sentence for third-degree burglary but reversed Chapman’s conviction and sentence for attempted criminal surveillance. Chapman v. State, 64 So.3d 1120 (Ala. Crim.App.2009). The State petitioned for the writ of certiorari, and we granted the State’s petition to review the Court of Criminal Appeals’ reversal of Chapman’s conviction for attempted criminal surveillance. We reverse and remand.

Facts and Procedural History

Chapman was indicted on one count of burglary in the third degree, a violation of § 13A-7-7, Ala.Code 1975, and one count of criminal surveillance, a violation of § 13A-11-32, Ala.Code 1975. The opinion of the Court of Criminal Appeals states the following relevant facts:

“The evidence presented at trial tended to show the following. Sarah Bodle lived in an apartment in the Robertsdale Village Apartments with her husband, Josh Bodle; they moved into the apartment in March 2004. The apartment they lived in had two stories, and there was an attic space above the apartment. Sarah testified that Chapman had never been invited into their apartment and that he had not been given permission to enter the attic space above their apartment.
“Sarah testified that she heard noises frequently during the months she and Josh lived in the apartment, usually on weekday mornings after Josh had left for work and while she was in the shower. The noises sounded to her like someone was in the room with her. Josh testified that Sarah told him almost daily that she had heard noises while she was getting ready in the morning after he had left for work. Sarah stated that on one occasion while she and Josh were in bed, she heard a loud noise and made Josh check the apartment. Josh heard the noise, too, and he testified that he checked the apartment but found no intruders.
“Josh and Sarah testified that the air conditioning did not work well on the second floor of their apartment. Sarah contacted the apartment manager about the problem, but the problem was never resolved before the incident underlying Chapman’s convictions occurred.
“When Josh and Sarah returned to the apartment one evening in August 2004, they noticed a footprint-shaped hole or crack in their ceiling at the top of the stairs to the second floor. Sarah testified that she then also observed ‘popcorn’ ceiling material from around the ceiling vents in the bathroom and the master bedroom on the floor beneath the vents. Josh looked in the attic space that evening to determine whether the attic space above their apartment was connected to Chapman’s attic space; Josh said the spaces were not connected. The next day, Sarah contacted the apartment manager, Kim Barnett, about the crack in the ceiling. Sarah testified on cross-examination that they did not know whether their apartment lease included the attic space but that she thought they were allowed to store items in the attic.
“Barnett testified that she went to the Bodies’ apartment and saw the footprint-shaped crack in the ceiling. She testified that the lease agreement did not include the attic space above the Bodies’ apartment but that tenants sometimes stored items in the attic space above their apartments. On cross-examination, Barnett testified that the Bodies had ‘rented that entire apartment’ and that tenants were not told that they could not put anything in the attic above their apartments. On redirect examination, Barnett testified that a tenant could reasonably believe that the attic space above the apartment was the tenant’s.
“Barnett testified that a firewall in the attic separated the attic area of one apartment from the [attic area of the] apartment next door and that because of that firewall, no other tenant would have had access to the attic space above the Bodies’ apartment unless the Bodies allowed the tenant into the attic or unless the tenant broke through the firewall.
“The maintenance employee for the apartment complex, Basil Chavers, testified that the attic space and the duct-work above the Bodies’ apartment was intact and undisturbed when the Bodies moved in. Chavers testified that only the tenants living in the apartment below their attic spaces would have access to the attic space, unless someone broke through the firewall that separates the attic space of the apartments. Chavers testified that, before this incident, the Bodies had complained that the air conditioning did not work properly and that the second floor of the apartment did not cool as well as the first floor. Sarah had also reported to Chavers that some ceiling insulation had fallen on several occasions. Chavers testified that he saw some of the insulation that had fallen in the areas of the bathroom, hall, and master bedroom.
“After the Bodies complained about the footprint-shaped crack in their ceiling, he went to the apartment and saw what appeared to be the imprint of ‘a perfect footprint’ in the ceiling. The Bodies said that they had not been in the attic. Chavers looked in the attic and saw a large hole in the firewall between the Bodies’ apartment and the apartment next door; he also saw that the ductwork in the areas above the bathroom and the master bedroom had been loosened. Chavers also saw that the insulation from the firewall to the areas above the bedroom and master bathroom of the Bodies’ apartment had been compressed so that it had trails through it. It was apparent to him that the firewall between the two attic spaces had been broken from Chapman’s side of the attic, Chavers said. When he looked down through the ductwork and vents he could see most of the Bodies’ bathroom and approximately three-quarters of their bedroom.
“Chavers said that he and Barnett went next door to Chapman’s apartment. It was apparent to him that someone had been walking on Chapman’s ceding also, because the ceiling was cracked in the area around the attic access. Chav-ers said that he and Barnett then contacted the police.
“Anthony Dobson of the Robertsdale Police Department testified that he was called to the Bodies’ apartment and that he went into the attic space above their apartment. Investigator Dobson testified that the firewall that separated the apartments, which is made out of drywall, had been cut and knocked down and that it appeared that the damage originated from Chapman’s side of the attic. Investigator Dobson also stated that he observed trails in the insulation that went from the firewall to two ceiling vents in the Bodies’ apartment. The ductwork could easily be moved, he said, and when he moved it he could see through the vents into the bathroom and bedroom below.
“Sergeant Rex Bishop of the Roberts-dale Police Department testified that he spoke to Chapman at the police department after the evidence in the attic was discovered. Chapman agreed to give a statement, and the statement was admitted into evidence. Sergeant Bishop read Chapman’s statement for the jury:
“ T moved into the above apartment in March. Later that month, I did the stupidest thing and went into the attic, and then pulled down the walls to get to the neighbor’s attic. I removed the duct work over the bathroom and main bedroom, in hopes to see something later when the neighbors returned. I got scared after I realized what I had done, and I left, never to return.
“ ‘Recently I became a Christian and follower of God and have been feeling guilty for the things I tore up in the attic. So on August the 18th, the neighbors left and I went up to fix all my wrong doings. I was trying to fix the duct work for good, and I stepped in a weak part of the floor, and it pushed in. I got scared and just tried to fix the wall, but it wouldn’t stay up. My girlfriend has been living with me and has always been with me since June. I never had a chance to fix it until the 18th. I am very ashamed of the few hours I was not in control of my hormones. But in trying to fix my mistake, I made one, which, rightfully so, lifted the guilt from my shoulders. I am truly sorry from my mistakes and I pray for forgiveness.’
“Sergeant Bishop testified that he had looked into the attic and that Chapman’s statement about the number of times he had been in the Bodies’ attic was not consistent with Sergeant Bishop’s observation of the pathways in the insulation in the attic,”
64 So.3d at 1122-24 (citations to record omitted).

At the conclusion of his jury trial, Chapman was convicted of burglary in the third degree, a violation of § ISA-7-7, Ala.Code 1975, and of attempted criminal surveillance, a violation of §§ 13A-4-2 and 13A-11-32, Ala.Code 1975. On appeal, the Court of Criminal Appeals affirmed the burglary conviction but reversed the attempted-criminal-surveillance conviction. Chapman, 64 So.3d at 1128. Judge Windom, in an opinion joined by Presiding Judge Wise, dissented from that portion of the Court of Criminal Appeals’ judgment reversing Chapman’s conviction for attempted criminal surveillance. We granted the State’s petition for the writ of cer-tiorari to review that part of the Court of Criminal Appeals’ judgment reversing Chapman’s conviction for attempted criminal surveillance.

Discussion

In its opinion, the Court of Criminal Appeals first held that there was sufficient evidence to sustain Chapman’s convictions. That aspect of the Court of Criminal Appeals’ judgment is not before us. However, the Court of Criminal Appeals also held “that, based on the specific facts of this case, Chapman’s convictions for both third-degree burglary and attempted criminal surveillance violated double-jeopardy principles.” 64 So.3d at 1128. The court reasoned:

“ ‘Under the principles of double jeopardy, “[t]he applicable rule is that, where the same act or transaction constitutes a violation of two distinct statutory provisions, the test to be applied to determine whether there are two offenses or only one, is whether each provision requires proof of a fact which the other does not.” Blockburger v. United States, 284 U.S. 299, 304 (1932). Therefore, “ ‘[a] single act may be an offense against two statutes; and if each statute requires proof of an additional fact which the other does not, an acquittal or conviction under either statute does not exempt the defendant from prosecution and punishment under the other.’” Id. (quoting Gavieres v. United States, 220 U.S. 338, 342 (1911), in turn quoting Morey v. Commonwealth, 108 Mass. 433 (1871)).’

“Ex parte Dixon, 804 So.2d 1075, 1078-79 (Ala.2000).

“Third-degree burglary is defined in § 18A-7-7, Ala.Code 1975, as follows:

“ ‘(a) A person commits the crime of burglary in the third degree if he knowingly enters or remains unlawfully in a building with intent to commit a crime therein.’
“(Emphasis added.)

“Count I of the indictment charged that Chapman

“ ‘did, knowingly enter or remain unlawfully in a building, the property of Sarah Bodle, a better description of the owner being otherwise unknown to the Grand Jury, with the intent to commit a crime therein, to-wit: Criminal Surveillance, in violation of § 13A-7-7 of the Code of Alabama.’

“(Emphasis added.)

“Criminal surveillance is defined in § 13A-11-32, Ala.Code 1975, as follows:

‘“(a) A person commits the crime of criminal surveillance if he intentionally engages in surveillance while trespassing in a private place.’

“(Emphasis added.)

“Count II of the indictment charged that Chapman

“ ‘did intentionally secretly observe the activities of Sarah Bodle for the purpose of spying on and invading the privacy of the said Sarah Bodle while trespassing in a private place, to-wit: the attic and/or roof area to her apartment, in violation of § 13A-11-32 of the Code of Alabama[.]’

“(Emphasis added.)

“Definitions also relevant to this analysis are:

“ ‘(2) Private place. A place where one may reasonably expect to be safe from casual or hostile intrusion or surveillance, but such term does not include a place to which the public or a substantial group of the public has access.

“ ‘(3) Surveillance. Secret observation of the activities of another person for the purpose of spying upon and invading the privacy of the person observed.’

“§ 13A-11-30, Ala.Code 1975.

“Finally, a person is guilty of trespassing if he or she knowingly enters or remains unlawfully in a building. § 13A-7-3, Ala.Code 1975.

“Chapman correctly argues that, under the facts of this case, each crime of which he was convicted required proof that he was trespassing in a private place belonging to Sarah Bodle and that, while he was trespassing, he had the intent to commit criminal surveillance. Because count I of the indictment charged Chapman with burglary of a building belonging to Sarah Bodle, and because Sarah lived in a multi-occupant building, all parts of her apartment constituted a ‘private place,’ as that term is defined by statute. Therefore, the elements of burglary, as it was charged in this case, were the same elements necessary to prove attempted criminal surveillance. Proof of the burglary did not require proof of an additional element that was not required to prove attempted criminal surveillance. Chapman’s conviction for attempted criminal surveillance, however, required proof of the additional element of an overt act toward criminal surveillance. See § 13A-4-2(a), Ala.Code 1975 (‘A person is guilty of an attempt to commit a crime if, with the intent to commit a specific offense, he does any overt act towards the commission of such offense.’). Therefore, the principles set forth in Blockburger v. United States, 284 U.S. 299, 304 (1932), were violated because each crime, as it was charged here, did not require proof of an additional fact that the other crime did not require.

“Furthermore, § 13A-4-5(b), Ala. Code 1975, provides that a defendant may not be convicted of both the actual commission of an offense and of an attempt to commit the offense when those convictions are based on the same course of conduct. Analogously, Chapman cannot be convicted of the completed crime of third-degree burglary and of attempted criminal surveillance when those crimes are based on the same course of conduct and require proof of the same elements. Thus, we hold that, based on the specific facts of this case, Chapman’s convictions for both third-degree burglary and attempted criminal surveillance violated double-jeopardy principles. Therefore, we must remand this case for the trial court to vacate Chapman’s conviction and sentence for attempted criminal surveillance.

Chapman, 64 So.3d at 1127-28 (citations to record omitted).

In its materials to this Court, the State argues that the Court of Criminal Appeals erred in its double-jeopardy analysis. Specifically, the State contends, as Judge Windom concluded in her opinion dissenting in part, that Chapman’s “convictions were based on separate acts and [that] ‘separate evidence supported each charge.’” 64 So.3d at 1130 (Windom, J., concurring in part and dissenting in part) (quoting Duffy v. State, 789 P.2d 821, 831 (Wyo.1990)).

Judge Windom noted in her dissenting opinion:

“In Blockburger v. United States, the Supreme Court of the United States established the ‘same elements’ test for determining whether two charges constitute the ‘same offenses’ in violation of the Double Jeopardy Clause of the Fifth Amendment. 284 U.S. 299, 304 (1932). Under the Bloclcburger test, ‘where the same act or transaction constitutes a violation of two distinct statutory provisions, the test to be applied to determine whether there are two offenses or only one is whether each provision requires proof of a fact which the other does not.’ Id. (emphasis added). This court has held that ‘[t]he constitutional provision that no one shall be put in jeopardy twice for the same offense is broad enough to mean that no one can lawfully be punished twice for different offenses growing out of the same state of facts.’ McClellan v. State, 484 So.2d 1150, 1155 (Ala.Crim.App.1985).”

64 So.Bd at 1130 (Windom, J., concurring in part and dissenting in part). However, the Blockburger v. United States, 284 U.S. 299, 52 S.Ct. 180, 76 L.Ed. 306 (1932), same-elements test and the Double Jeopardy Clause are not implicated “[w]here separate acts or distinct facts establish two crimes.” 64 So.3d at 1130 (Windom, J., concurring in part and dissenting in part) (citing Duffy, 789 P.2d at 831). See also United States v. Schales, 546 F.3d 965, 978 (9th Cir.2008) (“The Blockburger test is implicated only ‘where the same act or transaction constitutes a violation of two distinct statutory provisions.”’ (quoting Blockburger, 284 U.S. at 304, 52 S.Ct. 180)).

In the present case, Sgt. Rex Bishop of the Robertsdale Police Department testified regarding Chapman’s confession (1) that he removed the firewall separating the attics of his apartment and the Bodies’ apartment; (2) that he entered the attic space over the Bodies’ apartment; and (3) that once he was inside the attic space he “ ‘removed the duct work over the bathroom and main bedroom.’” 64 So.3d at 1124. In his statement, Chapman admitted that he did those things in order “ ‘to see something later when the neighbors returned.’” 64 So.3d at 1124. Thus, by Chapman’s own admission, at the moment he entered the attic space over the Bodies’ apartment, he had committed all the acts necessary to be found guilty of third-degree burglary.

“The State’s evidence established that Chapman removed the firewall separating the attic of his apartment and the attic of the Bodies’ apartment and entered the Bodies’ apartment with the intent to commit criminal surveillance. At that point, the crime of third-degree burglary was complete. See § 13A-7-7, Ala.Code 1975 (‘A person commits the crime of burglary in the third degree if he knowingly enters or remains unlawfully in a building with intent to commit a crime therein.’).”

64 So.3d at 1130-31 (Windom, J., concurring in part and dissenting in part).

In the opinion of the dissenting judges in Chapman, after he had committed all the acts necessary to be convicted of third-degree burglary,

“Chapman committed additional acts in furtherance of the crime of criminal surveillance. Specifically, Chapman walked across the Bodies’ attic and removed the air-conditioner ductwork from the air-conditioner vents to enable him to see into the Bodies’ bedroom and bathroom. The acts of removing the ductwork from two vents occurred after the burglary was complete and establish the overt-act element of attempted criminal surveillance.”

64 So.3d at 1131 (Windom, J., concurring in part and dissenting in part). Thus, in their opinion, “the overt act necessary to establish the crime of attempted criminal surveillance was a separate act from the completed burglary and was proved by evidence separate and distinct from the evidence establishing the burglary.” Id. (citing Yparrea v. Dorsey, 64 F.3d 577, 580 (10th Cir.1995), and Moser v. Commonwealth, 799 S.W.2d 21, 22 (Ky.1990)).

The majority and dissenting opinions of the Court of Criminal Appeals appear to focus on the one occasion Chapman admitted to intruding into the attic space over the Bodies’ apartment and removing the ductwork in an attempt “ ‘to see something later when the neighbors returned.’ ” 64 So.Bd at 1124. Under those circumstances, Judge Windom did not think Chapman’s convictions violated double-jeopardy principles, because “the overt act necessary to convict Chapman of attempted criminal surveillance [was] separate from and occurred after the acts establishing the third-degree burglary.” 64 So.3d at 1181 (Windom, J., concurring in part and dissenting in part). The State, in its materials to this Court, addresses the majority opinion of the Court of Criminal Appeals in a similar manner. The State cites several authorities in support of the proposition that a defendant who commits a separate crime after having completed a crime may be convicted of both crimes even though the acts constituting the two crimes occurred close in time.

In the present case, however, there was evidence indicating that Chapman intruded into the attic space over the Bodies’ apartment on multiple occasions over a period of months and that the ductwork over the Bodies’ bathroom and bedroom— which would have allowed Chapman to attempt to see the Bodies — was removed during that entire period. Specifically, Sgt. Bishop testified “that Chapman’s statement about the number of times he had been in the Bodies’ attic was not consistent with Sergeant Bishop’s observation of the pathways in the insulation in the attic.” Chapman, 64 So.3d at 1124. The Bodies testified that they frequently heard noises during the months that they lived in the apartment; Sarah stated that she heard the noises almost daily, and she described them as sounding “like someone was in the room with her.” 64 So.3d at 1122. In addition to Chapman’s statement that he “tr[ied] to fix the duct work for good” on August 18 (which would have been five months after he had removed it), the Bodies “testified that the air conditioning did not work well on the second floor of their apartment.” 64 So.3d at 1122.

Thus, because the State offered evidence indicating that Chapman made multiple intrusions into the Bodies’ attic in an attempt “ ‘to see something,’ ” it is not necessary for us to assume, in deciding whether Chapman’s convictions for burglary and attempted criminal surveillance violate double-jeopardy principles, that Chapman intruded into the Bodies’ attic only once in an attempt to see the Bodies. Rather, we conduct our double-jeopardy analysis with the recognition that the State offered evidence indicating that Chapman committed acts constituting third-degree burglary and attempted criminal surveillance on several, separate occasions over the course of several months. With that in mind, we agree with Judge Windom’s ultimate conclusion that the Double Jeopardy Clause and the Bbclcbwrger test are not implicated in this case because the convictions were based on separate acts. Thus, we agree with Judge Windom that “Chapman’s convictions for attempted criminal surveillance and third-degree burglary do not violate the Double Jeopardy Clause of the Fifth Amendment.” 64 So.3d at 1131 (Windom, J., concurring in part and dissenting in part).

The Court of Criminal Appeals also stated the following:

“Furthermore, § 13A-4-5(b), Ala. Code 1975, provides that a defendant may not be convicted of both the actual commission of an offense and of an attempt to commit the offense when those convictions are based on the same course of conduct. Analogously, Chapman cannot be convicted of the completed crime of third-degree burglary and of attempted criminal surveillance when those crimes are based on the same course of conduct and require proof of the same elements. Thus, we hold that, based on the specific facts of this case, Chapman’s convictions for both third-degree burglary and attempted criminal surveillance violated double-jeopardy principles.”

Chapman, 64 So.3d at 1128. However, as we have noted, the evidence upon which Chapman was convicted indicated that there were multiple instances in which he intruded into the attic space above the Bodies’ apartment and attempted to commit criminal surveillance. Thus, because Chapman was not convicted of two crimes based on a single act or transaction, the merger doctrine in § 13A-4-5(b) does not apply in this case.

Conclusion

The judgment of the Court of Criminal Appeals is reversed insofar as it reversed Chapman’s conviction and sentence for attempted criminal surveillance. The cause is remanded to the Court of Criminal Appeals for further proceedings consistent with this opinion.

REVERSED AND REMANDED.,

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

PARKER, MURDOCK, and SHAW, JJ., dissent.

PARKER, Justice

(dissenting).

I respectfully dissent. I agree with the majority opinion of the Court of Criminal Appeals that the Double Jeopardy Clause is implicated here. As charged in this case, both burglary and attempted criminal surveillance required a trespass in a private place and an intent to commit criminal surveillance. Attempted criminal surveillance required an additional element, an overt act toward the commission of the offense. Therefore, the charges presented in this case present two offenses, one of which required proof of all but one element that was required to be proven of the other.

SHAW, Justice

(dissenting).

I respectfully dissent. As the main opinion suggests, “[t]he majority and dissenting opinions of the Court of Criminal Appeals appear to focus on the one occasion Chapman admitted to intruding into the attic space over the Bodies’ apartment and removing the ductwork....” 64 So.3d at 1139-40. This is also the approach taken by the State in its petition for the writ of certiorari and supporting brief, which essentially argue the position taken by the dissenting judges in the Court of Criminal Appeals. The gist of the State’s argument is that there were separate acts constituting the burglary and the attempted criminal surveillance and that each crime contained elements that the other did not.

The State specifically advances the argument that the burglary offense was complete when Chapman entered the attic space over the Bodies’ apartment and that the attempted-criminal-surveillance offense occurred thereafter when he moved the ductwork. Although the evidence suggests that there were separate occasions when Chapman entered the attic and thus committed multiple offenses separated by time, I see no argument by the State in its brief that this Court should reverse the Court of Criminal Appeals’ judgment on the theory that the criminal acts of burglary and attempted criminal surveillance occurred on different occasions. Instead, the State’s argument is limited to urging this Court to find two separate criminal acts occurring on one occasion.

“[W]hen we are asked to reverse a lower court’s ruling, we address only the issues and arguments the appellant chooses to present.” Hart v. Pugh, 878 So.2d 1150, 1157 (Ala.2003). Partridge v. Sawyer, 383 So.2d 184, 186 (Ala.Civ.App.1980) (“This court will not reverse on the basis of an issue not raised and ruled on below.”). Because the State does not advance in its petition or brief to this Court the rationale relied on by the main opinion, I cannot concur to reverse the judgment of the Court of Criminal Appeals as to Chapman’s conviction for attempted criminal surveillance.

MURDOCK, J., concurs.

      . The trial court split Chapman’s sentence on the third-degree-burglary conviction and ordered Chapman to serve one year and one day in prison, followed by three years' probation.

      "2 Before trial, Chapman moved for dismissal of either count I or count II, and he argued that the charges were multiplicitous. Although the prosecutor argued that each crime required an element that the other did not, he also said: 'Now, he can be convicted of both, but he can’t be sentenced for both.' The prosecutor’s comment appears to indicate his understanding that the elements of the crimes overlapped.”

      . In his dissenting opinion, Justice Shaw summarizes the State's position as arguing generally "that there were separate acts constituting the burglary and the attempted criminal surveillance...." 64 So.3d at 1142. He disagrees with this Court's decision today, however, because, he says, the State did not make the specific argument "that the criminal acts of burglary and attempted criminal surveillance occurred on different occasions.” Id.

      In its materials to this Court, the State clearly articulated the position that the double-jeopardy analysis by the Court of Criminal Appeals did not apply because Chapman committed separate acts constituting the separate offenses. See State’s petition, p. 5 ("The majority's opinion [in the Court of Criminal Appeals] conflicts with Blockburger [v. United States, 284 U.S. 299, 52 S.Ct. 180, 76 L.Ed. 306 (1932),] and \Exparte'\ Dixon, [804 So.2d 1075 (Ala.2000),] because the holdings in those cases apply when the defendant’s conduct applies to the 'same act or transaction.' ”); State's brief, p. 9 ("[The Bloclcburger test, however, does not apply when there is more than one act-” (emphasis added)). Our decision is consistent with the State’s arguments in that regard.

      . See U.S. Const. amend. V; Art. I, § 9, Ala. Const. 1901.

      . See State's brief, pp. 9-12 (citing Jones v. State, 672 So.2d 1366, 1368 (Ala.Crim.App. 1995); Ogle v. State, 587 So.2d 1270, 1271 (Ala.Crim.App.1991); State v. Howard F., 86 Conn.App. 702, 712, 862 A.2d 331, 340 (2004); Maxey v. State, 239 Ga.App. 638, 639, 521 S.E.2d 673, 675 (1999); Phillips v. Commonwealth, 679 S.W.2d 235, 236 (Ky.1984); State v. Lefeure, 778 So.2d 744, 752 (La.Ct. App.2001); People v. Squires, 240 Mich.App. 454, 459, 613 N.W.2d 361, 365 (2000), overruled on other grounds, People v. Nutt, 469 Mich. 565, 595, 677 N.W.2d 1, 17-18 (2004); Hughery v. State, 915 So.2d 457, 459 (Miss.Ct. App.2005)).

      . We have not reviewed that portion of the Court of Criminal Appeals’ judgment holding that there was sufficient evidence to sustain Chapman’s convictions or that portion affirming his conviction for third-degree burglary. Therefore, those portions of the Court of Criminal Appeals’ judgment are not affected by our decision!

       Note from the reporter of decisions: On December 3, 2010, on remand from the Alabama Supreme Court, the Court of Criminal Appeals affirmed, without opinion (CR-07-1360).

      . At one point, the State does cite caselaw noting that separate acts committed close in time to one another may constitute separate criminal offenses. Hughery v. State, 915 So.2d 457, 459 (Miss.Ct.App.2005). However, that decision is cited only for the proposition that Chapman committed more one criminal act, not that multiple criminal acts occurred on more than one occasion.