author: MOORE, Judge.

text:
    Debra Lori KELLEY v. Jackie Douglas KELLEY.
    2081094.
    Court of Civil Appeals of Alabama.
    June 25, 2010.

      Joshua B. Sullivan of Henslee, Robertson, Strawn & Sullivan, LLC, Gadsden, for appellant.
    Roy 0. McCord of McCord & Martin, Gadsden, for appellee.
   MOORE, Judge.

Debra Lori Kelley (“the wife”) appeals from a judgment divorcing her from Jackie Douglas Kelley (“the husband”). The wife challenges the trial court’s division of property, the denial of her motions for contempt, and the denial of her request for an award of attorney fees. We affirm.

Procedural Background

On September 6, 2006, the wife filed a complaint seeking a divorce from the husband on the basis of incompatibility. Based on the wife’s complaint, the trial court entered an ex parte order, which stated: “Except to the extent permitted within the normal course of business, [the husband] is hereby enjoined from disposing, selling, transferring, moving, [or] encumbering ... any assets owned or held during the course of the marriage, including marital assets and property of [the wife].” After a pendente lite hearing, the husband was ordered, among other things, to pay $400 per month to the wife as pendente lite alimony and to maintain health insurance for the benefit of the wife.

Shortly after the entry of the pendente lite order, the wife filed a motion for contempt, asserting, among other things, that the husband had failed to pay alimony in accordance with the pendente lite order. On April 12, 2007, the husband sought an order allowing him to sell certain real property; he represented to the trial court that he needed to sell the property identified in his motion so that he could pay alimony and his living expenses. After a hearing, the trial court granted the husband’s motion conditioned upon the husband’s receiving one-half of the proceeds from the sale of the real property and the husband’s forwarding the other one-half of the proceeds to his attorney to be held in trust pending further order of the trial court.

During the pendency of the litigation, the wife filed multiple motions seeking a finding of contempt against the husband. In those motions, she asserted that the husband had violated the pendente lite order by failing to pay alimony, by failing to maintain health insurance for the benefit of the wife, and by transferring, selling, or otherwise disposing of marital assets. The wife also sought a restraining order and a hearing. On June 27, 2008, after hearing arguments on one of the wife’s motions, the trial court entered an order, reserving a decision on the wife’s motion for a finding of contempt until the final hearing, but specifically stating that the pendente lite order remained in effect and directing the parties to strictly comply with all the terms of that order. Subsequent to the entry of that order, the wife again moved for a finding of contempt based on the husband’s alleged failure to comply with the pendente lite order.

On May 11, 2009, after a hearing at which ore tenus evidence was presented, the trial court entered its judgment of divorce. The trial court divided the parties’ personal property between the parties. The trial court also divided the parties’ remaining real property into two essentially equal groups, referred to in the judgment as “Paragraph A” and “Paragraph B,” and instructed the wife to select whether she wished to have the properties listed in Paragraph A or Paragraph B as a property settlement. In addition, the trial court ordered the husband to pay to the wife $20,000 as a property settlement “regarding disputed property values.” The trial court awarded the wife no alimony and ordered each party to be responsible for their own debts and attorney fees. The trial court’s judgment did not address the wife’s requests for a finding of contempt against the husband or the wife’s claimed damages flowing from the husband’s alleged violations of the pendente lite order.

On May 29, 2009, the wife filed, pursuant to Rule 59, Ala. R. Civ. P., a motion to alter, amend, or vacate the trial court’s judgment. On July 31, 2009, after a hearing, the trial court entered an order granting in part and denying in part the wife’s postjudgment motion. The trial court modified its property award as it related to certain guns owned by the parties, but stated generally that it denied the wife’s postjudgment motion in all other respects.

The wife appeals. On appeal, she asserts that the trial court erred in failing to include in its valuation of the marital estate the property disposed of by the husband in violation of the pendente lite order, that the trial court exceeded its discretion in denying her motions for contempt, and that the trial court exceeded its discretion in failing to award her attorney fees.

Evidentiary Background

The evidence pertinent to this appeal shows that the parties married on March 14, 1997, and that they separated in late August 2006, when the husband moved the wife out of the house while she was on vacation based on his belief that the wife had engaged in extramarital affairs. The wife testified that, at the time of the parties’ separation, the parties owned and operated a sole proprietorship doing business as “Kelley Pile Driving and Excavating” (“the business”). According to the wife, at the time of the parties’ separation, the business owned a significant amount of heavy equipment with a value, after deducting liens on the equipment, of $396,355, and, in 2006, the business produced a gross income of $935,486. The parties also owned joint bank accounts with deposits totaling $67,976.31. Additionally, it was undisputed that, at the time of their separation, the parties owned 15 parcels of real property that appraised for tax purposes at a value of $304,211, and upon which the parties were indebted in the amount of $76,913.20. The parties also owned nine mobile homes debt-free, one of which they used as a primary residence on their “Willow Creek property,” one of which stood on “the Riverhill Subdivision property,” and seven of which were located on “the Springville properties” and were rented out by the parties. The husband disputed the wife’s itemization of the equipment owned at the time of the parties’ separation. The husband did not, however, dispute the wife’s fair-market valuation of the business equipment or her accounting of the real estate and bank accounts owned by the parties at the time of their separation.

Following the parties’ separation, the wife moved into the mobile home located on the Riverhill Subdivision property, property that she had purchased before the parties’ marriage and that had remained titled in only her name. At the time of the trial, the wife was employed as a truck driver earning approximately $600 per week. The husband had paid her $1,440 in alimony, but he had not paid any further sums due under the pendente lite order.

The husband testified that the business began faltering in 2007 and that he ultimately went out of business because of economic conditions and his personal health problems. He had since become employed as an equipment operator earning $500 per week. The husband testified that he had sold off all the business equipment to pay bills. The record does not disclose the sale price for every piece of equipment sold, but the sale prices mentioned in the record were far below the undisputed fair-market value. The husband did not seek permission of the court to sell the equipment because, the husband testified, he considered those sales to be within the normal course of his business. The wife introduced evidence indicating that the husband had retained possession of some of the equipment sold, but the husband testified that that equipment had merely been loaned back to him or used for the new owner’s purposes.

The husband also had sold several of the 15 parcels of real property owned by the parties. The husband testified that he had sold the Willow Creek property and the two Springville properties, along with the seven mobile homes on the Springville properties, to a close friend, at what the wife characterized as discounted prices. That friend was allowing the husband to continue to reside on the Willow Creek property rent-free until after the divorce was finalized. The husband testified that he had not collected rent from the mobile homes on the Springville properties after he had sold them to his friend in July 2007, but the husband’s federal income-tax records indicated otherwise. Hence, the wife testified that she believed the husband was still collecting rent from those properties at the time of the trial. The husband also had sold his interest in three parcels, known as “the 15th Street properties,” to his father for $2,500, although they were appraised for tax purposes at $34,816. The husband testified that he had “sold” another piece of property, “the Highway 431 property” used in the business, by allowing a friend to simply assume the payments on that property. The husband did not seek the court’s permission to sell those properties; however, the husband had sought and received permission from the court to sell another piece of real property in April 2007, “the Hill Avenue property,” subject to the condition that he place one-half of the proceeds in trust with his attorney, which the husband had not done, instead applying all the proceeds to “pay bills.”

The husband testified that, while his wife had been on vacation in August 2006, he had closed all of their bank accounts. He testified that he had spent approximately $42,000 of the over $67,000 removed from those accounts on business expenses but that he also had bought a house on Norris Avenue for approximately $18,000. The husband further testified that he had used the proceeds from the equipment and real-property sales to extinguish debts to creditors listed in an exhibit introduced into evidence; however, that exhibit did not specifically identify the amount of the debt paid. The husband additionally testified that he had paid an outstanding tax debt of the parties with the proceeds from the sale of the Spring-ville properties. The husband stated that he remained $78,638.38 in debt at the time of trial, although he later testified that most of that debt was incurred after the parties had separated. The husband testified that the only marital assets still existing at the time of the trial included the mobile homes in which he and the wife resided and a few unsold parcels of real property.

Analysis

The wife first asserts that the trial court exceeded its discretion in its division of the marital property. She complains that the husband sold or transferred all the parties’ business equipment and the bulk of their real property at less than their fair-market value during the pendency of the divorce action and that the husband’s misconduct should be treated as a dissipation of the marital assets. As a result, she asserts that the trial court exceeded its discretion in failing to include in its valuation of the marital estate the value of those assets disposed of by the husband in violation of the pendente lite order.

Although this court previously has reviewed cases involving allegations of dissipation of marital assets, the resolution of such cases has not heretofore included a discussion of the factors to be considered in determining whether a spouse has dissipated or wasted marital assets in contemplation of a divorce. See, e.g., Pate v. Guy, 942 So.2d 380 (Ala.Civ.App.2005) (addressing wife’s allegation that husband had dissipated vast amounts of marital assets before parties’ divorce by reference to the ore tenus rule and the broad discretion enjoyed by a trial court in dividing marital property). Although other states vary in their treatment of this issue, we find general guidance in 24 Am.Jur.2d Divorce and Separation § 526 (2008). That treatise indicates that, in determining whether the use of marital assets amounts to a dissipation of those assets, a court must determine whether the use of the asset was for a selfish and wasteful purpose or was merely an ill-advised use but one not so far removed from that normal or typical for the marriage. Factors identified as appropriate to a determination of whether dissipation of marital assets has occurred include:

“(1) the proximity of the expenditure to the parties’ separation; (2) whether the expenditure was typical of expenditures made by the parties prior to the breakdown of the marriage; (3) whether the expenditure benefited the joint marital enterprise or was for the benefit of one spouse to the exclusion of the other; and (4) the need for, and the amount of, the expenditure.”

24 Am.Jur.2d Divorce & Separation § 526. Although some jurisdictions have adopted a differing approach, as a general rule a dissipated asset is included in the marital estate and awarded to the spouse who wasted the asset. See 24 Am.Jur.2d Divorce & Separation § 542 (2008) (citing cases).

We also note that, because whether a dissipation of assets has occurred is a consideration in a division of marital property, the resolution of that issue is subject to the broad discretion enjoyed by trial courts. A trial court’s judgment dividing marital property must be plainly and palpably beyond the scope of that discretion before the judgment can be disturbed on appeal. See McClelland v. McClelland, 841 So.2d 1264, 1271 (Ala.Civ.App.2002). Additionally, “ ‘ “[property divisions are not required to be equal, but must be equitable in light of the evidence, and the determination as to what is equitable rests within the sound discretion of the trial court.” ’ ” Ex parte Drummond, 785 So.2d 358, 361 (Ala.2000) (quoting Morgan v. Morgan, 686 So.2d 308, 310 (Ala.Civ. App.1996), quoting in turn Duckett v. Duckett, 669 So.2d 195, 197 (Ala.Civ.App. 1995)). “A court has no fixed standard to follow in awarding alimony or in dividing marital property. Rather, the award or division need only be equitable and be supported by the particular facts of the case.” Ex parte Elliott, 782 So.2d 308, 311 (Ala.2000).

Business Equipment

The wife asserts that, during the pendency of the divorce litigation, the husband sold all the business equipment at far below its collective value of $527,200. The wife, however, admitted that her $527,200 valuation of the business equipment was based upon the original purchase price of the equipment, that her valuation did not include any depreciation, and that the equipment had liens collectively totaling $130,845. The husband denied that, at the time of the parties’ separation, the parties had owned all the equipment listed by the wife, claiming that the parties had never owned some of the items listed by the wife and that they had sold other pieces of equipment claimed by the wife before their separation.

The husband also testified that, before the parties’ separation, they routinely bought and sold equipment to pay their business and living expenses. The husband testified that, by the time of the trial, he had disposed of certain equipment at auction and in other transactions in order to pay off the hens on the equipment, to pay business debts, and to pay living expenses. The husband also testified that, beginning in 2007, his business was no longer financially productive or feasible and he had been forced to close it.

Thus, the trial court heard disputed testimony regarding the extent of the equipment the parties owned at the time of their separation. As the trier of fact, the trial, court was required to resolve those disputed issues. Additionally, the trial court could have relied on the husband’s testimony indicating that, during the parties’ marriage and in the normal course of business, the parties had sold equipment as needed to pay business and personal expenses. Because the husband testified that, during the pendency of the litigation, he had sold all the business equipment in order to pay debts and expenses of the business as well as his personal living expenses, the trial court could have found that the husband’s disposition of the business equipment was for a proper purpose, did not improperly reduce the value of the marital estate, and did not amount to an improper dissipation of the marital assets.

Real Property

The wife also complains that the husband disposed of multiple parcels of real property during the pendency of the litigation and that those sales or transfers reduced the value of the marital estate. The husband admitted that he and the wife had owned the Springville properties free and clear of any debt; that those properties, without including the value of the mobile homes located thereon, were valued at $34,640; and that he had sold those properties, including the mobile homes located thereon, to a friend for $40,000. The friend acknowledged purchasing the Springville properties for $40,000, but the friend denied that he had purchased the mobile homes in the transaction. The husband testified that he had used the proceeds from that sale to pay off an outstanding Internal Revenue Service tax lien of approximately $40,355. The wife did not dispute the husband’s testimony that he had paid off a marital debt, thereby benefiting her as a result of that sale. Because the undisputed evidence established that the proceeds from the sale of the Springville properties were used to reduce marital debt, the trial court could have concluded that the husband’s sale of the Springville properties was for a proper purpose, did not reduce the value of the marital estate, and did not amount to a dissipation of the marital assets.

The husband also acknowledged that he had transferred title to the Highway 431 property, on which existed a “chert pit” used in the business and which was valued at $65,200, to another friend in exchange for the friend taking up the mortgage payments on that property. The husband testified that that property had a lien against it and that its use was subject to permits issued by the Alabama Department of Environmental Management. According to the husband, those permits required that the owner “reclaim” the land at the expiration of those permits. According to the husband, the Littleton Cutoff property, valued at $33,480, had gone into foreclosure (see supra note 12). Again, that evidence was undisputed. In light of the husband’s testimony regarding the economic difficulties faced by the business in 2007 and 2008, the trial court would have been within its discretion in finding that the husband’s disposition of those properties was for a proper purpose, did not reduce the value of the marital estate, and did not amount to an improper dissipation of the marital assets.

The husband also admitted that he had sold the Willow Creek property to a friend for $20,000. Other than generally testifying that he had paid “debts,” the husband did not specifically explain how he had used the proceeds from that sale, and the sale of that property, the parties’ marital homestead, was not within the normal course of the husband’s business. Additionally, the husband’s friend testified that he had paid the husband $30,000 for that property, thus disputing the husband’s testimony as to the sales price.

The husband also acknowledged that he and his father had jointly owned the 15th Street properties free and clear of any debt and that he had sold his interest in the 15th Street properties to his father for $2,500, although those properties had a collective tax-assessed value of $34,816. When questioned why he had sold those properties at well below their fair value, the husband testified that he and his father had included a “buy-sell agreement” in the language of the deeds to the 15th Street properties requiring the husband to sell his interest in the properties to his father at the same price for which they had been purchased. The only deed introduced into evidence for any of the 15th Street properties did not include language supporting the husband’s claim. Other than that purported “buy-sell agreement,” the husband offered no explanation for his sale of his interest in the 15th Street properties; he also did not identify how he had spent the proceeds of that sale and what, if any, debts he had paid with the proceeds from that sale. That sale was not within the normal course of the business.

We conclude that, based upon the evidence, the husband’s disposition of the Willow Creek property and the 15th Street properties amounted to a dissipation of the marital assets, i.e., those sales or transfers were not identified as occurring in the normal course of the business, the husband failed to identify a proper marital purpose for those sales or transfers, and the husband failed to establish that the proceeds from those sales or transfers did not reduce the value of the marital assets. Such a conclusion, however, does not compel a reversal of the trial court’s property division under the facts of this case.

“ When ore tenus evidence is presented, a presumption of correctness exists as to the trial court’s findings on issues of fact; its judgment based on these findings of fact will not be disturbed unless it is clearly erroneous, without supporting evidence, manifestly unjust, or against the great weight of the evidence. ... When the trial court in a nonjury case enters a judgment without making specific findings of fact, the appellate court “will assume that the trial judge made those findings necessary to support the judgment.” Transamerica Commercial Fin. Corp. v. AmSouth Bank, 608 So.2d 375, 378 (Ala.1992). Moreover, “[ujnder the ore tenus rule, the trial court’s judgment and all implicit findings necessary to support it carry a presumption of correctness.” Transamerica, 608 So.2d at 378.’ ”

Farmers Ins. Co. v. Price-Williams Assocs., Inc., 873 So.2d 252, 254 (Ala.Civ.App. 2003) (quoting City of Prattville v. Post, 831 So.2d 622, 627-28 (Ala.Civ.App.2002)).

Additionally, in Pate v. Guy, supra, this court affirmed the trial court’s division of marital property despite the mother’s allegations that the father had dissipated vast amounts of the parties’ marital assets. After summarizing the mother’s allegations of dissipation, this court recited the familiar principles of law applicable to property divisions. The court stated:

“Although the mother insists that the property division is inequitable, we have previously noted that this court is authorized to disturb the trial court’s decision only if it is unsupported by the evidence and, therefore, ‘is unjust and palpably wrong.’ See Scholl [v. Parsons, 655 So.2d 1060, 1062 (Ala.Civ.App.1995) ]; Kratz [v. Kratz, 791 So.2d 971, 973 (Ala.Civ.App.2001) ]; see also Ex parte Durbin, 818 So.2d 404, 409 (Ala.2001). ‘It is also well established that in the absence of specific findings of fact, appellate courts will assume that the trial court made those findings necessary to support its judgment, unless such findings would be clearly erroneous.’ Ex parte Bryowsky, 676 So.2d 1322, 1324 (Ala.1996). Furthermore, an appellate court may not substitute its judgment for that of the trial court; Alabama law does not allow this court to reweigh the evidence. See Ex parte Foley, 864 So.2d 1094, 1098 (Ala.2003). In light of these principles, we cannot conclude that the trial court abused its discretion in this case.”

Pate v. Guy, 942 So.2d at 387.

In this case, the trial court divided the marital property remaining at the time of the final hearing in an essentially even manner and then awarded the wife an additional $20,000 to account for any “dispute in values.” By awarding the wife an additional $20,000, the trial court could have implicitly factored in any misconduct by the husband in disposing of the Willow Creek property and 15th Street properties at below their fair values.

Recognizing the broad discretion granted to a trial court in dividing marital property, see, e.g., McClelland v. McClelland, 841 So.2d at 1271, and applying the presumption of correctness that attaches to a trial court’s implicit findings of fact, see, e.g., Farmers Ins. Co., supra, we conclude that the trial court’s division of the marital property is not clearly erroneous. See Ex parte Bryowsky, 676 So.2d 1322, 1324 (Ala.1996) (“It is also well established that in the absence of specific findings of fact, appellate courts will assume that the trial court made those findings necessary to support its judgment, unless such findings would be clearly erroneous.”).

Further, that the trial court appears to have awarded the wife less than one-half of the combined value of the Willow Creek property and the 15th Street properties does not rise to the level of reversible error. “ ‘ “Property divisions are not required to be equal, but must be equitable in light of the evidence, and the determination as to what is equitable rests within the sound discretion of the trial court.” ’ ” Ex parte Drummond, 785 So.2d at 361. Because we cannot conclude that the wife’s award of the marital property was outside the trial court’s discretion, we must affirm the trial court’s property award.

Contempt

The wife next asserts that the trial court exceeded its discretion by failing to find the husband in contempt of court for his failure to pay alimony, to maintain health insurance on the wife, and to preserve the marital assets in accord with the pendente lite order. “[W]hether a party is in contempt of court is a determination committed to the sound discretion of the trial court, and, absent an abuse of that discretion or unless the judgment of the trial court is unsupported by the evidence so as to be plainly and palpably wrong, this court will affirm.” Stack v. Stack, 646 So.2d 51, 56 (Ala.Civ.App.1994).

We cannot address the issues regarding unpaid alimony and health insurance because the wife failed to preserve those issues for appeal. “[I]n a nonjury case in which the trial court makes no specific findings of fact, a party must move for a new trial or otherwise properly raise before the trial court the question relating to the sufficiency or weight of the evidence in order to preserve that question for appellate review.” New Props., L.L.C. v. Stewart, 905 So.2d 797, 801-02 (Ala.2004). See also Point Clear Landing Ass’n, Inc. v. Kaylor, 959 So.2d 672, 677 (Ala.Civ.App.2006) (accord); and Rule 52(b), Ala. R. Civ. P.

In this case, the trial court made no findings of fact; it simply entered a judgment divorcing the parties and dividing the marital property. Although the wife filed a postjudgment motion, the trial court’s failure to find the husband in contempt on the basis of unpaid alimony and lapsed health insurance was not asserted as error in that motion. As a result, the wife has failed to preserve those issues for appellate review.

The wife did, however, assert in her postjudgment motion that the trial court had exceeded its discretion in failing to find the husband in contempt based on his failure to preserve the marital assets. Thus, that issue is properly before us. We have already concluded, however, that the trial court could have properly found that many of the husband’s transfers of equipment and property were made in the normal course of the business; thus, the trial court properly could have found that those transfers of equipment and property did not amount to a contemptible violation of the pendente lite order. Additionally, as pointed out above, the trial court’s property division awarded the wife an additional $20,000 to account for disputed property values. Because the trial court could have determined that the husband’s violations of the pendente lite order had been adequately addressed and remedied by increasing the wife’s property award, we cannot conclude that the trial court exceeded its discretion in failing to make an express finding of contempt against the husband.

Attorney Fees

As her final argument, the wife asserts that the trial court exceeded its discretion in failing to award her attorney fees. “ “Whether to award an attorney fee in a domestic relations case is within the sound discretion of the trial court and, absent an abuse of that discretion, its ruling on that question will not be reversed.’ ” Lackey v. Lackey, 18 So.3d 393, 402 (Ala.Civ.App.2009) (quoting Glover v. Glover, 678 So.2d 174, 176 (Ala.Civ.App.1996)).

The wife asserts that because of her limited income, the husband’s alleged misconduct, the complexity of this case, and the fact that two trials were required (see supra note 1), the trial court exceeded its discretion by not awarding her an attorney fee. We disagree. The evidence presented to the trial court indicated that, post-separation, the parties’ incomes were essentially the same. Additionally, as stated above, the trial court’s judgment could be construed as having addressed the husband’s violation of the pendente lite order in the form of an increased property award to the wife. The other factors relied on by the wife in support of her request for an award of attorney fees — the fact that two trials were held and the complexity of the case — impacted the husband to the same extent they impacted the wife. Accordingly, we find no reversible error in the trial court’s denial of the wife’s request for attorney fees.

Finding no reversible error presented on appeal, we affirm the trial court’s judgment.

AFFIRMED.

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

BRYAN and THOMAS, JJ., concur in the result, without writings.

      . On May 23, 2007, after a trial, the trial court entered a judgment of divorce. Both parties timely filed, pursuant to Rule 59, Ala. R. Civ. P., motions to alter, amend, or vacate the trial court's judgment. On August 28, 2007, the husband and the wife jointly filed a stipulation, pursuant to Rule 59.1, Ala. R. Civ. P., expressly agreeing on the record to indefinitely extend the 90-day period during which their postjudgment motions could remain pending in the trial court. On January 2, 2008, the trial court granted the husband’s and the wife’s motions to vacate the divorce judgment; the trial court ordered a new trial. The trial judge subsequently entered an order of recusal, and the case was reassigned to a different trial judge.

      . The wife denied that she had committed adultery, and the trial court divorced the parties on the ground of incompatibility of temperament. Based on the trial court’s division of the marital property, it does not appear that the trial court found the husband's allegations of adultery to be credible or to be sufficient to impact the wife’s share of the marital estate.

      . The wife testified that, at the time of the parties’ separation in August 2006, the business owned 44 pieces of heavy equipment. The husband denied the accuracy of that number.

      . The husband agreed with the wife’s fair-market valuation of the business equipment, but he testified that, because he had needed money, he had sold the equipment at absolute auction, which had brought a much lower price than the fair-market value.

      . The wife submitted an exhibit and income-tax records indicating that the business had generated reported gross receipts of $111,740 in 1997; $205,401 in 1998; $165,113 in 1999; $207,165 in 2000; $133,294 in 2001; $204,201 in 2002; $132,577 in 2004; $129,394 in 2005; $935,486 in 2006; and $200,678 in 2007. The wife also testified that the business had generated unreported income exceeding those figures.

      . The wife submitted exhibits showing that the rental income from the mobile homes had amounted to $5,773 in 2002; $5,484 in 2003; $18,901 in 2004; $24,600 in 2006; and $18,500 in 2007. The exhibits did not disclose the rents received in 2005.

      . The husband also testified that he had disposed of some equipment by transferring ownership in exchange for the new owner paying off the debt owed on the equipment.

      . That property had been appraised for tax purposes as being worth $35,403 without the mobile home. The husband testified that he sold the property for $20,000. The friend who had purchased the property testified that he had paid the husband $30,000 for the property.

      . The husband testified that he had sold the Springville properties and the seven mobile homes for $40,000, although the properties alone had been appraised for tax purposes at $34,640. The friend testified that he did not purchase the seven mobile homes.

      . The friend testified that the husband was obligated to maintain the property while living there rent-free and that the friend hoped to sell the property to the husband or the wife once the divorce became final.

      . The husband claimed that a buy-sell agreement entered into with his father and incorporated into the deeds of the properties required him to sell the 15 th Street properties to his father for $2,500; however, the language of the deed contained in the record did not support the husband’s testimony on this point.

      . The husband testified that another property, referred to as "the Litdeton Cutoff property,” had gone into foreclosure.

      . The record contains no further reference to the Norris Avenue property. The wife did not argue to the trial court that the husband's purchase of that property was an improper expenditure, the trial court’s division of the marital property made no reference to the Norris Avenue property, the wife made no mention of the property in her postjudgment motion, and the property is not specifically mentioned on appeal. We, therefore, conclude that any issue arising from the Norris Avenue property has been waived, and we need not address it further.

      . Additionally, although the wife contended that the husband had not actually disposed of all the business equipment, the husband explained, apparently to the trial court’s satisfaction, his post-sale use of certain equipment.

      . The trial court's award of $20,000 to the wife, to the extent it represents an award of her interest in those properties, represents approximately 38% of their combined value of $52,811 (Willow Creek property valued at $35,403 and the husband’s one-half interest in the 15th Street properties valued at one-half of $34,816 or $17,408).


source: Caselaw Access Project

author: THOMAS, Judge.

license: Public Domain

text:
    Bruce ALBRIGHT v. Marsha Albright POE.
    2090154.
    Court of Civil Appeals of Alabama.
    June 25, 2010.

      John A. Tinney, Roanoke, for appellant.
    Kesa M. Johnston, Roanoke, for appel-lee.
   THOMAS, Judge.

Marsha Albright Poe instituted a sale-for-division action in the Randolph Circuit Court, seeking to have property that she alleged is jointly owned by her and her ex-husband Bruce Albright sold for division because, she alleged, it could not be equitably divided. Albright, acting pro se, answered the complaint, disputing that Poe owned any interest in the property because, he alleged, they had agreed that he was to receive the property as part of the settlement agreement incorporated into their divorce judgment. Albright later secured counsel, who filed two amended answers and asserted counterclaims of promissory estoppel, breach of contract, and adverse possession. Albright attached the parties’ divorce judgment and the settlement agreement that had been incorporated into the divorce judgment to his first amended answer; the settlement agreement does not mention the disputed property. Poe moved to dismiss the counterclaims, attaching to her motion the deed to the property. She and Albright filed briefs supporting their respective positions on Poe’s motion to dismiss Albright’s counterclaims. The trial court, after considering those briefs, dismissed all Albright’s counterclaims. The final sentence of the trial court’s judgment dismissing Al-bright’s counterclaims orders Poe to “move forward with her [sale] for division action.” Albright appealed that judgment to this court. This court transferred the appeal to the Alabama Supreme Court because this court lacked subject-matter jurisdiction; the Alabama Supreme Court then transferred the appeal to this court, pursuant to Ala.Code 1975, § 12-2-7(6).

Although neither party questions our jurisdiction over this appeal, this court can notice a jurisdictional defect ex mero motu. See J. Bryant, LLC v. City of Birmingham, 23 So.3d 675, 677 (Ala.Civ.App.2009) (citing Ruzic v. State ex rel. Thornton, 866 So.2d 564, 568-69 (Ala.Civ.App.2003), abrogated on other grounds by F.G. v. State Dep’t of Human Res., 988 So.2d 555 (Ala.Civ.App.2007)). Generally, an appeal may be taken only from a final judgment. Ala.Code 1975, § 12-22-2. A final judgment is one “that conclusively determines the issues before the court and ascertains and declares the rights of the parties involved.” Bean v. Craig, 557 So.2d 1249, 1253 (Ala.1990).

The trial court’s judgment resolves only Albright’s counterclaims. Poe’s sale-for-division action remains pending below. Because the trial court’s judgment does not “conclusively determine[] the issues before the court” or “ascertain[] and declaren the rights of the parties,” Bean, 557 So.2d at 1253, we must dismiss the appeal as having been taken from a nonfinal judgment.

APPEAL DISMISSED.

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

      . The only exception to the requirement that an appeal be taken from a final judgment is when a trial court has certified a judgment deciding fewer than all the pending claims or resolving the issues involving fewer than all the parties as a final judgment pursuant to Rule 54(b), Ala. R. Civ. P. See Bean, 557 So.2d at 1253. However, "a judgment disposing of counterclaims that are in the nature of defenses to an unresolved original claim should not be certified pursuant to Rule 54(b),” because the claim and counterclaims are inextricably intertwined such that separate adjudication poses a risk of inconsistent results. Hurst v. Cook, 981 So.2d 1143, 1151 (Ala.Civ.App.2007) (citing Summerlin v. Summerlin, 962 So.2d 170, 174 (Ala.2007), and Branch v. SouthTrust Bank of Dothan, N.A., 514 So.2d 1373, 1374 (Ala.1987)). Thus, the trial court’s judgment in this case is not appropriate for Rule 54(b) certification.


author: PER CURIAM. BASCHAB, Presiding Judge,

text:
    Thomas Chester RAY, Jr. v. STATE of Alabama.
    CR-05-0912.
    Court of Criminal Appeals of Alabama.
    April 27, 2007.
    Rehearing Denied June 29, 2007.

      William R. Willard, Gadsden, for appellant.
    Troy King, atty. gen., and John J. Davis, asst. atty. gen., for appellee.
   On Application for Rehearing

PER CURIAM.

This Court’s opinion of January 12, 2007, is hereby withdrawn and the following is substituted therefor.

The appellant, Thomas Chester Ray, Jr., was convicted of sexual abuse in the first degree, a violation of § 13A-6-66(a)(l), Ala.Code 1975. He was sentenced to 10 years in the state penitentiary.

The State’s evidence tended to show the following: The victim, M.M., who is mentally retarded, testified that she lived with her mother and Ray when she was around 9 or 10 years of age. She said that on two occasions Ray made her put lotion on his “privates” and rub him. M.M. also testified that he told her not to tell anyone or he would beat her. She said that Ray was physically abusive and beat her with shoes, switches, and belts.

The testimony also showed that M.M. and her sister were removed from their mother in 2003 and that a guardian was appointed for the children at that time. M.M. told her guardian that Ray made her put lotion on his penis. The guardian testified that she immediately reported M.M.’s statement to the Department of Human Resources. Ray was ultimately charged with sexual abuse in the first degree.

Ray testified in his own defense and was questioned about a statement he gave to Detective Teri Davis of the Gadsden Police Department. In the statement Ray told police that he had never touched the victim in a sexual way. The circuit court then allowed the prosecutor to question Det. Davis about a prior juvenile adjudication that was also brought out during Ray’s statement to Det. Davis.

I.

Ray first argues that the circuit court erred in allowing the State to impeach him with evidence about a prior juvenile adjudication from the State of Ohio. Specifically, he argues that the admission of the juvenile adjudication to impeach him violated Rule 609(d), Ala.R.Evid., and statutory law.

Rule 609(d), Ala.R.Evid., provides: “[Ejvidence of a juvenile or youthful offender adjudications is not admissible under this rule.” Section 12-15-72(b), Ala. Code 1975, provides in part: “The disposition of a child and evidence given in a hearing in the court shall not be admissible as evidence against him in any case or proceeding in any other court whether before or after reaching majority....”

The State argues that Ray opened the door to the introduction of evidence of the prior juvenile adjudication when he discussed the prior juvenile adjudication in his statement to Det. Davis. The State further asserts that the prior juvenile adjudication was properly admitted to show motive.

During Ray’s direct examination, the following occurred:

“[Defense counsel]: At any time did you make a statement to law enforcement?
“[Ray]: Yes, I did.
“[Defense counsel]: And do you remember, in essence—
“[Prosecutor]: Excuse me, Your Hon- or, could we approach the bench?
“The Court: Sure.
“(Whereupon, the following proceedings were had before the Court at the bench, to-wit:)
“[Prosecutor]: Judge, I just wanted to point out that at this point she’s asking him about the statement. During the course of the statement there were conversations—
“The Court: Have you got the statement?
“[Prosecutor]: Yes, sir, I have the written statement and I have the notes from the oral statement, as well, both of which she has. There’s his written statement—
“[Defense counsel]: Yes, sir.
“[Prosecutor]: —which does not refer to it, but the other page does.
“The Court: I got it down. Go ahead. Step back.
“(Whereupon, the following proceedings were had before the Court and the jury, to-wit:)
“[Defense counsel]: Did you have occasion to make a written statement to Gadsden law enforcement?
“[Ray]: Yes, I did.
“[Defense counsel]: And in essence, what did that say?
“[Ray]: It basically said I have never touched the girl in a sexual way the whole time I’ve known her.”

(R. 243^5.)

The circuit court then allowed the prosecutor to question Ray about other portions of this statement. Specifically, in this statement Ray told Det. Davis that there had been a previous incident with his 8-year-old niece when he was in Cleveland, Ohio; that he was only 16 years old at the time of the incident; that the incident involved “sexual contact”; and that he had completed a sex-offender-treatment program as a result of that offense. Although only that portion of Ray’s statement in which he denied any sexual contact with the victim in the present case was reduced to writing, during the colloquy outside the presence of the jury the circuit court ascertained from Det. Davis that Ray had admitted the juvenile adjudication during the same conversation.

Alabama has long held that when one party introduces a portion of a conversation, the opposing party has the right to introduce the remainder of that conversation to the extent that it relates to the subject matter of the part of the conversation already introduced. See Flournoy v. State, 34 Ala.App. 23, 27, 37 So.2d 218, 221 (1948) (“When a part of a conversation or transaction is put in evidence, the opposite party may rightfully call for the whole of it, although the evidence was in the first place illegal. Gibson v. State, 91 Ala. 64, 9 So. 171 [ (1891) ].” (emphasis added)). This doctrine is often referred to as the doctrine of completeness.

Rule 106, Ala.R.Evid., now addresses this doctrine and provides, in part:

“When a party introduces part of either a writing or recorded statement, an adverse party may require the introduction at that time of any other part of the writing or statement that ought in fairness to be considered contemporaneously with it.”

However, Rule 106, Ala.R.Evid., does not apply to oral statements.

In Stockard v. State, 391 So.2d 1060 (Ala.1980), the Alabama Supreme Court relied on the doctrine of completeness to hold that the circuit court correctly allowed the introduction of an entire conversation held outside of the defendant’s presence after the defendant first introduced a portion of that conversation into evidence. In reversing this Court’s decision in Stockard v. State, 391 So.2d 1060 (Ala.1979), the Supreme Court stated:

“We conclude that this holding by the Court of Criminal Appeals is in conflict with this Court’s opinion in Logan v. State, 291 Ala. 497, 282 So.2d 898 (1973), wherein it was stated:
“ ‘... [Wjhen part of a conversation or transaction is put in evidence, the opposite party may rightfully call for the whole of it, although the evidence was in the first place illegal. Gibson v. State, 91 Ala. 64, 9 So. 171 [ (1891) ]. Further, it has been held that when the defendant, on cross-examination of a witness elicits part of a conversation, the State may in rebuttal show the entire conversation. Davis v. [State], 131 Ala. 10, 31 So. 569 [ (1902) ]; Flournoy v. State, 34 Ala.App. 23, 37 So.2d 218 [ (1948) ].’
“It appears to us that the Court of Criminal Appeals, in applying the rule that one party can show the entire conversation when the opposing party has introduced a portion of it, made a distinction between admissible and inadmissible hearsay. We do not think that Logan authorizes such a distinction. The rule of admissibility has been explained in McElroy’s Alabama Evidence as follows:
“ ‘It is generally said, although sometimes loosely, that if one party proves any part of an oral conversation or oral statement, the other party has the right to prove all that was said on the same occasion (citing Logan v. State). More correctly stated, the general rule is that only so much of the remainder of the statement or conversation is admissible as relates to the subject-matter of the part brought out by the opponent.’
“C. Gamble, McElroy’s Alabama Evidence § 316.01 (1977). Thus, relevancy to the subject matter brought out is the standard by which a party might call for the remainder of a conversation partially proved by his opponent.”

391 So.2d at 1064. This rule of admissibility has frequently been applied in Alabama cases. See, e.g., Ex parte Tucker, 474 So.2d 134, 135 (Ala.1985) (“[Wjhen one party brings out part of a transaction or conversation, the other party may inquire further into the matter or bring out the whole subject for further examination.”); Logan v. State, 291 Ala. 497, 502, 282 So.2d 898, 903 (1973) (“[Wjhen the defendant, on cross-examination of a witness elicits part of a conversation, the State may in rebuttal show the entire conversation.”); Lewis v. State, 549 So.2d 620, 622 (Ala.Crim.App. 1989) (“[Wjhen a portion of a witness’s statement is received into evidence, the opposing party has the right to have the entire statement admitted into evidence.”); and Charles W. Gamble, McElroy’s Alabama Evidence § 316.01 (5th ed. 1996) (“If one party proves any part of an oral conversation or oral statement, the other party has the right to prove the relevant remainder.”), and the cases cited therein. See also Calhoun v. State, 932 So.2d 923, 959 (Ala.Crim.App.2005); McClellan v. State, 452 So.2d 909 (Ala.Crim.App.1984).

Moreover, many other jurisdictions follow the holding in Stockard. See Walters v. State, 206 S.W.3d 780, 785 (Tex.App. 2006) (“Rule 107 [Tex.R.Evid., the rule of completeness] is one of admissibility and permits the introduction of otherwise inadmissible evidence when that evidence is necessary to fully and fairly explain a matter ‘opened up’ by the adverse party.”); Barone v. State, 841 So.2d 653, 655 n. 2 (Fla.Dist.Ct.App.2003) (“The ‘opening the door’ concept permits the admission of otherwise inadmissible evidence to ‘qualify, explain, or limit’ previously admitted evidence.”); Nickell v. Russell, 260 Neb. 1, 11, 614 N.W.2d 349, 357 (2000) (hearsay evidence admissible to “explain and place into accurate context those portions of ... testimony offered by [the defendant].”); State v. Eugenio, 219 Wis.2d 391, 579 N.W.2d 642 (1998) (rule of completeness allows admission of inadmissible hearsay); State v. Warren, 143 N.H. 633, 732 A.2d 1017 (1999) (inadmissible evidence may be admissible under theory of completeness); United States v. Sutton, 801 F.2d 1346, 1368 (D.C.Cir.1986) (“Rule 106 [Tex. R.Evid., the rule of completeness] can adequately fulfill its function only by permitting the admission of some otherwise inadmissible evidence when the court finds in fairness that the proffered evidence should be considered contemporaneously.”). But see Simmons Oil Corp. v. Wells Fargo Bank, N.A., 289 Mont. 119, 960 P.2d 291 (1998) (“Evidence rule on completeness does not authorize admission of otherwise inadmissible hearsay.”).

According to the Alabama Supreme Court, the only limitation to the admissibility of evidence under the rule of completeness is that the evidence be relevant to the “subject-matter of the part brought out by the opponent.” Stockard, 391 So.2d at 1064.

Here, by specifically testifying during direct examination about that portion of his statement in which he denied committing the offense, Ray opened the door to the introduction of the remaining portion of the statement in which he freely admitted that he had previously been charged with a prior juvenile offense involving sexual contact. Moreover, the remaining evidence the prosecutor introduced regarding Ray’s juvenile adjudication was merely cumulative to Ray’s statement and was thus harmless. See Dawson v. State, 675 So.2d 897, 900 (Ala.Crim.App.1995) (“The erroneous admission of evidence that is merely cumulative is harmless error.”). For the foregoing reasons, we hold that the circuit court committed no error in allowing Det. Davis to testify about Ray’s prior juvenile adjudication.

II.

Ray next argues that the circuit court erred in denying his motion for a judgment of acquittal because, he argues, the evidence failed to meet the statutory definition of sexual abuse in the first degree. Specifically, he argues that he could not be convicted of this offense because he did not touch the victim—the victim touched him.

The State first asserts that Ray did not preserve this issue for appellate review because, it argues, Ray did not raise this specific argument in his motion for a judgment of acquittal. However, Ray did argue in his motion that “the State has not presented a prima facie case of sexual abuse in the first degree.” The Alabama Supreme Court has held that a similar objection was sufficient to preserve for review an issue concerning the sufficiency of the evidence. See Ex parte Maxwell, 439 So.2d 715 (Ala.1983).

Sexual abuse in the first degree is defined in § 13A-6-66, Ala.Code 1975, as follows:

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

Sexual contact is defined in § 13A-6-60(3), Ala.Code 1975, as “[a]ny touching of the sexual or other intimate parts of a person not married to the actor, done for the purpose of gratifying the sexual desire of either party.”

As stated above, Ray argues that an individual can be convicted of sexual abuse in the first degree only if “the intimate or private parts of the victim” are subjected to sexual contact. He asserts that because the victim touched him there was no commission of the crime of sexual abuse in the first degree as defined in § 13A-6-66, Ala.Code 1975.

Section 13A-6-66(a), Ala.Code 1975, states that a person is guilty of sexual abuse in the first degree if: “[h]e subjects another person to sexual contact by forcible compulsion.” “Although penal statutes are to be strictly construed, courts are not required to abandon common sense.” Musgrove v. State, 519 So.2d 565, 582 (Ala.Crim.App.1986). We have not construed this statute as narrowly as Ray urges us to do. As we stated in Holley v. State, 671 So.2d 131, 133 (Ala.Crim.App. 1995): “The state also presented evidence that the appellant rubbed J.H.’s vagina with his finger and made J.H. touch his penis. Either of these acts were sufficient to show that the appellant committed sexual abuse in the first degree.” See also Gunter v. State, 665 So.2d 1008, 1013 (Ala.Crim.App.1995) (“Under the definition of ‘sexual contact,’ ‘any touching of the sexual or other intimate parts’ should be construed literally to mean any touching, whether directly or using an inanimate object.”).

M.M. testified that Ray made her put lotion on his “private parts” on two occasions. “[T]he victim’s testimony alone is sufficient to establish a prima facie case of either rape or sexual abuse.” Jones v. State, 719 So.2d 249, 255 (Ala.Crim.App.1996). It was Ray’s actions alone that caused M.M. to touch his “private parts.” Therefore, the circuit court committed no error in denying Ray’s motion for a judgment of acquittal. See Holley.

For the foregoing reasons, we affirm Ray’s conviction for sexual abuse in the first degree.

APPLICATION FOR REHEARING GRANTED; OPINION OF JANUARY 12, 2007, WITHDRAWN; OPINION SUBSTITUTED; AFFIRMED.

McMILLAN, SHAW, WISE, and WELCH, JJ., concur.

BASCHAB, P.J., dissents, with opinion.

BASCHAB, Presiding Judge,

dissenting.

Aabama has long held that, as a general rule, juvenile convictions may not be used to impeach a defendant or witness. See Ex parte McCorvey, 686 So.2d 425 (Ala.1996); Bone v. State, 706 So.2d 1291 (Ala.Crim.App.1997); Moore v. State, 333 So.2d 165 (Ala.Crim.App.1976); Love v. State, 36 Ala.App. 693, 63 So.2d 285 (1953). With regard to impeachment by evidence of conviction of a crime, Rule 609(d), Ala. R. Evid., provides that “[ejvidence of juvenile or youthful offender adjudications is not admissible under this rule.” Aso, with regard to juvenile court proceedings, § 12-15-72, Ala.Code 1975, provides:

“(a) An order of disposition or other adjudication in proceedings under subsection (a) of Section 12-15-30 shall not be considered to be a conviction or impose any civil disabilities ordinarily resulting from a conviction of a crime or operate to disqualify the child in any civil service application or appointment.
“(b) The disposition of a child and evidence given in a hearing in the court shall not be admissible as evidence against him in any case or proceeding in any other court whether before or after reaching majority, except in a disposition hearing in a juvenile court or in sentencing proceedings after conviction of a crime for the purposes of a presen-tence study and report.”

However, there are some limited exceptions to this rule. In Ex parte Lynn, 477 So.2d 1385 (Ala.1985), the Aabama Supreme Court held that the trial court should have allowed the State to use a juvenile record to impeach an accomplice who had assisted the defendant in the commission of a capital offense. In Thomas v. State, 445 So.2d 992 (Ala.Crim.App. 1984), this court recognized that there was a distinction between using a -witness’ youthful offender adjudication to impeach his credibility and using a guilty plea as a youthful offender to contradict the witness’ testimony that he did not commit that offense. Finally, in Smith v. State, 795 So.2d 788, 818 (Ala.Crim.App.2000), we noted that, “[rjecognizing the competing interests of protecting the anonymity of juvenile offenders versus the right of an accused to confront the witnesses against him, Aabama has limited the Supreme Court’s holding in Davis [v. Alaska, 415 U.S. 308, 94 S.Ct. 1105, 39 L.Ed.2d 347 (1974)], by holding that, although juvenile records may properly be used to show a witness’s bias, the use of juvenile records for purposes of general impeachment is disallowed.”

On occasion, this court has also held that a defendant can open the door to questioning about his juvenile record. In Williams v. State, 695 So.2d 644, 647 (Ala.Crim.App.1996), we held that “the appellant ‘opened the door’ for the admission of his prior juvenile adjudications by denying[, on direct examination,] that he had ever been involved in anything similar to the offense for which he was charged.” In Cooley v. State, 686 So.2d 546, 551 (Ala.Crim.App. 1996), we held that, where the appellant raised an entrapment defense, the admission of evidence concerning a youthful offender adjudication “to show the predisposition of the appellant was not error [where it] went towards establishing the appellant’s state of mind, i.e., his predisposition to sell drugs, and towards rebutting his testimony that he had never sold drugs before.”

The majority concludes that,

“by specifically testifying during direct examination about that portion of his statement in which he denied committing the offense, [the appellant] opened the door to the introduction of the remaining portion of the statement in which he freely admitted that he had previously been charged with a prior juvenile offense involving sexual contact.”

52 So.3d at 551. With regard to written or recorded statements, Rule 106, Ala. R. Evid., provides:

“When a party introduces part of either a writing or recorded statement, an adverse party may require the introduction at that time of any other part of the writing or statement that ought in fairness to be considered contemporaneously with it.”

(Emphasis added.) With regard to unrecorded conversations, the common law completeness doctrine provided that, “if one party proves any part of an unrecorded oral conversation or oral statement, the other party has the right to prove the relevant remainder of it.” Rule 106, Ala. R. Evid., advisory committee’s notes (emphasis added). Neither Rule 106, Ala. R. Evid., nor the common law completeness doctrine allows carte blanche admissibility of the remaining portions of statements. Rather, Rule 106, Ala. R. Evid., incorporates a fairness limitation, and the common law incorporates a “relevant remainder” limitation. Further, § 12-15-72(b), Ala. Code 1975, provides:

“The disposition of a child and evidence given in a hearing in the court shall not be admissible as evidence against him in any case or proceeding in any other court whether before or after reaching majority, except in a disposition hearing in a juvenile court or in sentencing proceedings after conviction of a crime for the purposes of a presentence study and report.”

Finally, “ ‘[i]t has been the recognized doctrine in this State that a legislative enactment takes precedence over a rule of the Court.’ [Ex parte Foshee], 246 Ala. [604] 606, 21 So.2d 827, 828 [ (1945) ].” Ex parte Stewart, 730 So.2d 1246, 1250 (Ala.1999). Because the Legislature specifically limited the admissibility of evidence about juvenile adjudications in § 12 — 15—72(b), Ala. Code 1975, and in light of the limitations that are incorporated into Rule 106, Ala. R. Evid., and the common law completeness doctrine, § 12-15-72, Ala.Code 1975, trumps or overrides any evidentiary principles of completeness. Therefore, the majority’s reliance on the doctrine of completeness is misplaced. The trial court erroneously allowed the State to impeach the appellant’s credibility with evidence about a prior juvenile adjudication from the State of Ohio. Accordingly, I respectfully dissent.

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

      . Relying on its belief that the appellant stated that he would not do something like sexually abusing the victim, the trial court apparently found that he opened the door to examination about his prior juvenile adjudication. However, the record shows that the prosecutor actually stated, “Just wouldn't do something like that, would you?” and that the appellant simply responded, "No. No.” (R. 298.) Thus, the trial court was mistaken in its belief that the appellant specifically stated that he would not do something like sexually abusing the victim. The trial court stated that it would not have allowed the evidence about the appellant’s prior juvenile adjudication if he had simply said, “No.” Although a defendant may certainly open the door to questioning about juvenile adjudications, it is not appropriate for a prosecutor, through precise phrasing of a question, to attempt to force a defendant to open the door to such questioning. In this case, because the appellant simply responded in the negative to the prosecutor's question, his response did not open the door to questioning about his prior juvenile adjudication. Cf. Williams, supra.


author: MURDOCK, Justice.

text:
    Ex parte Thomas Chester RAY, Jr. (In re Thomas Chester Ray, Jr. v. State of Alabama).
    1061459.
    Supreme Court of Alabama.
    May 29, 2009.

      William R. Willard, Gadsden, for petitioner.
    Troy King, atty. gen., and John J. Davis, asst. atty. gen., for respondent.

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

   MURDOCK, Justice.

Thomas Chester Ray, Jr., was convicted of first-degree sexual abuse, a violation of Ala.Code 1975, § 13A-6-66(a)(l), for an offense involving a child. The trial court sentenced Ray to 10 years’ imprisonment. On appeal, the Court of Criminal Appeals affirmed Ray’s conviction and sentence. Ray v. State, 52 So.3d 547 (Ala.Crim.App. 2007). This Court granted Ray’s petition for a writ of certiorari. The issue before us is whether the trial court erred in admitting evidence relating to a prior juvenile adjudication in Ohio in which Ray pleaded guilty to an offense involving sexual contact with a child.

The alleged victim in the present case was 16 years old at the time of the trial and approximately 9 to 11 years old at the time of the alleged incidents made the basis of the criminal charge. She was described at trial as mentally retarded, but the record also contains testimony that she was in the 10th grade at the time of the trial, that she was on the honor roll, and that she was involved in several extracurricular activities. There was testimony at the trial that the victim and her siblings were removed from their mother’s custody by the Alabama Department of Human Resources (“DHR”) in 2003 and were placed with the wife of Ray’s brother (“the guardian”).

The two incidents of alleged sexual abuse apparently occurred sometime between 1998 and 2000 while Ray was living with the victim’s mother (to whom Ray was then married), the victim, and her siblings, one of whom was the victim’s twin sister. The victim testified that, on two occasions, Ray made her rub his “privates.” She also testified that Ray told her not to tell anyone or he would beat her. The victim testified that, to her knowledge, no similar incident occurred with her twin sister.

The guardian testified that the victim told her about the alleged abuse in “the latter part of 2003.” The guardian immediately informed DHR of the allegation. During the ensuing investigation, Ray was interviewed by the local police, and he stated that he had never touched the victim in a sexual way. The investigating detective also asked Ray about a previous juvenile adjudication that occurred in Ohio in 1991, when Ray was 16 years old. Ray admitted that he pleaded guilty in an Ohio juvenile proceeding to a charge of attempted rape of his then eight-year-old niece. As part of the Ohio adjudication, Ray completed a treatment program for sex offenders. During his interview with the local police, Ray gave a handwritten statement that reads as follows: “The things been said about me been [sic] sexual with [the victim] are not true. I have never touched her or let her touch me in a sexual way.”

Before the start of the trial, Ray filed a motion in limine to bar any reference to the juvenile proceeding in Ohio. The trial court directed the State not to refer to that proceeding, and the State made no mention of it or the events relating to it in its case-in-chief.

Ray testified in his own defense and was questioned on direct examination about the written statement he gave to the local police. Ray testified as follows:

“Q. Did you have occasion to make a written statement to ... law enforcement?
“A. Yes, I did.
“Q. And in essence, what did you say? “A. It basically said I have never touched the girl in a sexual way the whole time I’ve known her.
“Q. And I’m going to ask you one more time, did you touch [the victim] in an inappropriate way?
“A. Never.
“Q. At any time?
“A. Never.”

(Emphasis added.)

During the State’s cross-examination of Ray, the following colloquy took place:

“Q.[W]hat you wrote out for your statement basically you said none of what had been said was true, is that right?
“A. Exactly.
“Q. You never touched her or let her touch you in a sexual way, is that correct?
“A. That is correct.
“Q. Just wouldn’t do something like that would you?
“A. Is that a question?
“Q. Yes, it is.
“A. No. No.
“Q. And your family members and friends, you’ve indicated don’t have a problem -with you being around their children?
“A. No.
“Q. What about back up in Cleveland?
“A. No, they haven’t.
“Q. Does anybody there have a problem with you being around their kids?
“A. Sure don’t.”

(Emphasis added.)

After the foregoing colloquy, Ray’s counsel renewed, outside the presence of the jury, Ray’s motion in limine to exclude any reference to the Ohio juvenile proceeding, and she objected to any inquiry as to “incidents that happened while the defendant was a juvenile.” Those objections were overruled, based primarily on the trial court’s mistaken recollection that Ray had “freely responded] that he wouldn’t do something like that.” In doing so, the trial court stated:

“[T]he court was of the opinion that I would not let her go into any of the other details of the statement. But when he freely responds that he wouldn’t do something like that, I think the defendant has placed himself in a position that the state’s got to be able to respond when they do, in fact done something like this and as a result has undergone treatment for it.
“If he would have just responded ‘no, ’ that would have been the end of it and we would be in the same position that we were in before we started but his response wasn’t just, ‘no, ’ he added the statement and I wrote it down in quotation marks that he wouldn’t do something like that.”

(Emphasis added.)

The trial court then allowed the prosecutor to ask Ray on cross-examination before the jury about the oral statement Ray made to the police at the same time he gave the written statement:

“Q. And during the course of your conversation with [the detective] ... isn’t it time that you admitted that there was a prior occasion when you were in Ohio wherein you had sexual contact with a niece who was 8 years old at the time for which you underwent sex offender treatment, is that correct?
“A. Yes.”

In addition, in rebuttal, the State elicited testimony from the investigating detective to the effect that Ray, in his oral statement to the detective, had admitted that when he was a juvenile in Ohio, he had had sexual contact with his eight-year-old niece and had undergone sex-offender treatment. The detective’s testimony referred to the Ohio juvenile proceeding as well as to the events on which that proceeding was based.

In the Court of Criminal Appeals, Ray argued that the trial court erred in allowing the State to impeach him with evidence of his juvenile adjudication in Ohio because, he said, this evidence was barred by Rule 609(d), Ala. R. Evid., and by Ala.Code 1975, § 12-15-72(b). Rule 609(d) provides: “Evidence of juvenile or youthful offender adjudications is not admissible under this rule.” Section 12 — 15— 72(b) provides, in part: “The disposition of a child [in a juvenile proceeding] and evidence given in a hearing in the court shall not be admissible as evidence against him in any case or proceeding in any other court whether before or after reaching majority. ...”

The Court of Criminal Appeals affirmed Ray’s conviction. In reliance on Stockard v. State, 391 So.2d 1060 (Ala.1980), the court concluded that the “completeness doctrine” allowed the State to introduce the aforesaid evidence:

“Here, by specifically testifying during direct examination about that portion of his statement in which he denied committing the offense, Ray opened the door to the introduction of the remaining portion of the statement in which he freely admitted that he had previously been charged with a prior juvenile offense involving sexual contact.”

52 So.3d at 551 (emphasis added).

Presiding Judge Baschab dissented. She noted that, with some limited exceptions, juvenile adjudications may not be used to impeach a defendant who testifies at trial. She concluded that the majority’s reliance on the completeness doctrine was misplaced because (1) that doctrine allows only the admission of the relevant remainder of an oral conversation or of a document introduced by the other party, i.e., it does not “allow[ ] carte blanche admissibility of the remaining portions of statements” and (2) Rule 609(d) and § 12-15-72 specifically limit the admission of evidence regarding juvenile adjudications. 52 So.3d at 554 (Baschab, P.J., dissenting).

Ray argues to this Court (1) that Rule 609(d) and § 12-15-72 prohibited the admission of evidence relating to his 1991 juvenile adjudication in Ohio, and (2) that the “completeness doctrine” is limited to the relevant portion of the' remainder of the oral conversation at issue.

We conclude that the completeness doctrine does not support the admission of evidence regarding Ray’s 1991 juvenile adjudication in Ohio or the incident made the basis of that adjudication. In Stockard, this Court explained the doctrine as follows:

“The rule of admissibility has been explained in McElroy’s Alabama Evidence as follows:
“ ‘It is generally said, although sometimes loosely, that if one party proves any part of an oral conversation or oral statement, the other party has the right to prove all that was said on the same occasion [citing Logan v. State [, 291 Ala. 497, 282 So.2d 898 (1973) ]]. More correctly stated, the general rule is that only so much of the remainder of the statement or conversation is admissible as relates to the subject-matter of the part brought out by the opponent.’
“C. Gamble, McElroy’s Alabama Evidence § 316.01 (1977). Thus, relevancy to the subject matter brought out is the standard by which a party might call for the remainder of a conversation partially proved by his opponent.”

391 So.2d at 1064 (emphasis added).

Thus, the “relevancy” test under the completeness doctrine is, as Ray argues, a requirement that the part of the oral conversation or statement sought to be admitted under the doctrine “relates to the subject matter of the part [of the oral conversation or statement] brought out by the opponent.” It is not, in other words, a test of the general relevancy to the crime charged of the part of the conversation or statement sought to be admitted. See note 5, infra.

As also indicated by the Court’s explanation in Stockard, the completeness doctrine relates to oral conversations and statements. See also Rule 106, Ala. R. Evid., Advisory Committee Notes (explaining that in the wake of the adoption of Rule 106, the completeness doctrine continues to apply when “one party proves any part of an unrecorded oral conversation or oral statement”). On the other hand, Rule 106 now governs the necessity for completeness with respect to written statements.

The present case does not present any issue under Rule 106. Although the first two questions and answers on direct examination quoted above did involve Ray’s describing a part of the written statement he had given to law enforcement, that fact avails the State nothing. The statement by Ray to the investigating detective regarding the Ohio incident was not included in Ray’s written statement.

Nor does the common-law completeness doctrine provide any basis for affirming the judgment of the trial court here. As noted, after being asked to describe his written statement, the following questions were put to Ray:

“Q. And I’m going to ask you one more time, did you touch [the victim] in an inappropriate way?
“A. Never.
“Q. At any time?
“A. Never.”

(Emphasis added.) These questions did not solicit any testimony regarding any part of a prior oral conversation. They did not call on Ray to describe, and in response to them Ray did not describe, any part of his oral conversation with the detective. They are direct questions that were put to Ray at trial, and that he answered at trial, as to whether certain things were true.

Even if the completeness doctrine were apposite, Ray would still prevail on this issue. The completeness doctrine “serves the purpose of allowing a party to explain or rebut adverse inferences which might arise from the fragmentary or incomplete character of the evidence introduced by his adversary.” Ex parte Tucker, 474 So.2d 134, 135 (Ala.1985). The portion of Ray’s testimony during direct examination on the basis of which the State seeks to invoke the completeness doctrine consists of a bare denial of the crime in the present case. His testimony was not fragmentary or incomplete. The evidence of the 1991 Ohio incident does not “ ‘relate! ] to the subject matter’ ” of the part of Ray’s testimony “ ‘brought out by the [State’s] opponent.’ ” Stockard, 391 So.2d at 1064 (quoting C. Gamble, McElroy’s Alabama Evidence § 316.01 (1977)).

In reaching our decision in this case, we also are cognizant of the dictates of § 12-15 — 72(b), which, as previously noted, provides in relevant part that “[t]he disposition of a child [in a juvenile proceeding] and evidence given in a hearing in the court shall not be admissible as evidence against him in any case or proceeding in any other court whether before or after reaching majority....” See also Rule 609(d); Ex parte McCorvey, 686 So.2d 425, 425 (Ala.1996) (holding that the trial court erred in permitting the State to impeach a defendant’s credibility as a witness by referring to the defendant’s probationary status as a youthful offender, noting the “‘long-standing policy of protecting the anonymity of juvenile offenders’ ”).

Finally, we reject the State’s argument to this Court that Ray “opened the door” to the admission of the contested evidence by his answers to the prosecutor’s questions on cross-examination. First, the prosecutor’s question as to whether Ray “just wouldn’t do something like that” is sufficiently ambiguous that it should not be read as soliciting a blanket denial of all past sexual misconduct (i.e., the question could reasonably have been understood to be about doing “something like that” to the victim in this case). More fundamentally, the State fails to explain how Ray’s answers could constitute “opening the door” when they were direct responses to questions asked by the prosecutor on cross-examination. In this regard, we find instructive the opinion of this Court in Ex parte Woodall, 730 So.2d 652, 661-62 (Ala.1998):

“In its brief, the State attempts to justify the admission of ... evidence showing the defendant’s specific prior violent conduct, by emphasizing that the defendant testified on cross-examination that he was not violent and that he sought to avoid physical confrontations. These broad assertions, the State contends, opened the door to questions regarding his character and permitted evidence of the prior bad acts as impeachment. We disagree.
“ ‘Good or bad character of the accused is never an issue upon which the state may offer evidence to prove guilt unless the accused has first chosen to make it an issue.’ C. Gamble, McElroy’s Alabama Evidence, § 27.02(1) (5th ed.l996)(footnote omitted). ‘[T]he state cannot initiate the proving of the defendant’s bad character to prove his guilt. “In a criminal prosecution, it is generally agreed that the state is not allowed to introduce evidence of the accused’s bad character until the accused has first entered evidence of his good character.” ’ Dockery v. State, 659 So.2d 219, 220-21 (Ala.Cr.App.1994) (citation omitted). See also Ala. R. Evid. 404.
“The State’s argument in this case is identical to one rejected by the Court of Appeals of Georgia in a case with similar facts. In Arnold v. State, 193 Ga.App. 206, 387 S.E.2d 417 (1989), the prosecutor had on cross-examination asked the defendant three times whether he was a violent person. After the defendant responded by denying that he was violent, the prosecutor asked the defendant whether he had been convicted of aggravated assault. The defendant responded, ‘Yes[, but] that happened when I was young.’ 193 Ga.App. at 207, 387 S.E.2d at 418. On appeal, the defendant claimed that the prosecutor had improperly impeached his testimony and had attempted to show bad character. The prosecutor countered by contending that the questioning of the defendant regarding his prior conviction was permissible on the basis that the defendant had put his character in issue through his answers, given on cross-examination, indicating that he was not violent. The Court of Appeals rejected that argument and reversed the defendant’s conviction, stating:
“ ‘[T]he defendant did not voluntarily place his character in issue. He merely responded to questions which placed his character in issue.... This line of cross-examination was obviously an endeavor to compel defendant to respond to questions which placed his character in issue and which insured an excuse for the State’s introduction of evidence of defendant’s prior criminal record. We disapprove of this endeavor and adhere to the rule that the State cannot rebut or question the presumption of a defendant’s good character unless the defendant first chooses to place his character in issue.... [S]ince defendant did not voluntarily elect to place his character in issue, the trial court erred in allowing the State to attempt to impeach defendant and place his character in issue through the introduction of evidence of defendant’s prior criminal record.’
193 Ga.App. at 207-08, 387 S.E.2d at 419 (emphasis original).
“We conclude that the reasoning of the Arnold court is persuasive here. The justification the State offered in this present case for the admission of the evidence of the defendant’s prior uncharged violent conduct, i.e., that his answers on cross-examination indicating that he was not violent opened the door to questions regarding his character, is due to be rejected. It may not be said that the defendant chose to put his character at issue merely by responding to the prosecutor’s cross-examination designed to elicit testimony on that subject.”

(Footnote omitted.)

Based on the foregoing, we conclude that, in the context of the record before us, the evidence regarding Ray’s juvenile adjudication in Ohio and the incident made the basis of that adjudication was not admissible under the completeness doctrine and that the trial court erred in admitting that evidence.

REVERSED AND REMANDED.

LYONS, WOODALL, and PARKER, JJ., concur.

SMITH, J., concurs in the result.

STUART and BOLIN, JJ., dissent.

COBB, C.J., and SHAW, J., recuse themselves.

      . Ray was not interviewed by the local police until July 2004.

      . As demonstrated by the testimony quoted above, the trial court was mistaken in its recollection. Ray did not "freely respond” that he "wouldn't do something like that.” The State specifically asked him if he "[j]ust wouldn't do something like that would you?” Ray answered with a simple "no” and did not elaborate. The remaining questions in this vein were also answered with a mere denial, without elaboration.

      . Rule 609 governs the impeachment of a witness by evidence of a criminal conviction.

      . Rule 106 reads as follows:
      "When a party introduces part of either a writing or recorded statement, an adverse party may require the introduction at that time of any other part of the writing or statement that ought in fairness to be considered contemporaneously with it.”

      . “Relevance” in the context of the completeness doctrine does not mean relevance to the entire case; it is not an "evidentiary Trojan horse” that allows the State to bypass eviden-tiary rules prohibiting the admission of otherwise highly prejudicial evidence merely because that evidence was discussed during the same conversation as evidence that was admitted. The Wisconsin Supreme Court put it this way:
      "The rule of completeness ... should not be viewed as an unbridled opportunity to open the door to otherwise inadmissible evidence. Under the rule of completeness the court has discretion to admit only those statements which are necessaiy to provide context and prevent distortion. The circuit court must closely scrutinize the proffered additional statements to avert abuse of the rule.... ‘[A]n out-of-court statement that is inconsistent with the declarant’s trial testimony does not carry with it, like some evidentiary Trojan Horse, the entire regiment of other out-of-court statements that might have been made contemporaneously.' ”

        State v. Eugenio, 219 Wis.2d 391, 412, 579 N.W.2d 642, 651-52 (1998) (emphasis added).


author: KELLUM, Judge.

text:
    Thomas Chester RAY, Jr. v. STATE of Alabama.
    CR-05-0912.
    Court of Criminal Appeals of Alabama.
    June 25, 2010.
    William R. Willard, Gadsden, for appellant.
    Troy King, atty. gen., and John J. Davis, asst. atty. gen., for appellee.
   On Remand from the Alabama Supreme Court

KELLUM, Judge.

The appellant, Thomas Chester Ray, Jr., was convicted of sexual abuse in the first degree, a violation of § 13A-6-66(a)(l), Ala.Code 1975. The circuit court sentenced Ray to 10 years’ imprisonment. This Court affirmed Ray’s conviction and sentence on April 27, 2007. See Ray v. State, 52 So.3d 547 (Ala.Crim.App.2007).

Ray petitioned the Alabama Supreme Court for certiorari review, arguing that the circuit court erred in admitting evidence relating to a prior juvenile adjudication in Ohio in which Ray pleaded guilty to an offense involving sexual contact with a child. The Supreme Court granted certio-rari review and, on May 29, 2009, reversed this Court’s judgment, holding that “the evidence regarding Ray’s juvenile adjudication in Ohio and the incident made the basis of that adjudication was not admissible under the completeness doctrine.” Ex parte Ray, 52 So.3d 555, 562 (Ala.2009).

In light of the Supreme Court’s holding, we reverse the circuit court’s judgment and remand this case for further proceedings consistent with the Supreme Court’s opinion.

REVERSED AND REMANDED.

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

      . Judge Kellum was not a member of the Court of Criminal Appeals when the original decision in this case was released. This case was assigned to Judge Kellum on January 20, 2009.


text:
    Troy Andrew SMILEY v. STATE of Alabama.
    CR-07-2275.
    Court of Criminal Appeals of Alabama.
    May 1, 2009.
    Rehearing Denied July 24, 2009.
    John V. Berry and Brandon C. Little, Cullman, for appellant.
    Troy King, atty. gen., and Jean-Paul M. Chappell, asst. atty. gen., for appellee.
   KELLUM, Judge.

' The appellant, Troy Andrew Smiley, appeals the circuit court’s revocation of his probation. The record indicates that on June 13, 2008, Smiley pleaded guilty to the unlawful possession of drug paraphernalia. He was sentenced to one year’s imprisonment; however, the court suspended the sentence and placed Smiley on supervised probation for one year.

On July 24, 2008, the circuit court signed a “probation tolling order” and issued a warrant for Smiley’s arrest based on Smiley’s alleged violation of the terms and conditions of his probation; namely, his arrest for a new criminal offense — murder — while he was on probation. On July 25, 2008, the circuit court held a probation-revocation hearing and on that same day entered an order revoking Smiley’s probation. Defense counsel subsequently filed a motion to reinstate Smiley’s probation and asked that the matter be set for an immediate hearing. In his motion, defense counsel alleged that he had been retained by Smiley for the purposes of the probation-revocation hearing, but had not been notified of the July 25, 2008, hearing. The circuit court conducted a new probation-revocation hearing on September 4, 2008.

At the September 4, 2008, probation-revocation hearing, Jeff Hopper, a criminal investigator with the Etowah County Sheriffs Office, testified that on March 24, 2008, Jeffery Blake Stone’s father and stepmother reported Stone missing. Hopper testified that within the first week and a half of his investigation, he learned that Smiley had seen Stone shortly before he disappeared. Hopper interviewed Smiley in the beginning of April and let him go. Hopper testified that on July 1, 2008, he received information that Smiley had confided in someone that he had been part of a crime involving Stone. Hopper testified that he interviewed Smiley a second time and that during the second interview Smiley gave a statement detailing a plan to kill Stone.

A copy of the statement was read into evidence at the hearing. In his statement, Smiley said that his friend, Nathan Lee, had expressed a desire to kill Stone. Smiley stated that he owned a 9-mm Ruger gun that he gave Lee to use to kill Stone. According to Smiley, Lee shot Stone on March 24, 2008. After Stone was shot, Smiley helped Lee dispose of Stone’s body that same day by burying the body beside a logging road. Smiley stated that approximately one month later he stopped by the grave site and discovered Stone’s leg sticking out of the ground. Smiley stated that he and Lee then moved Stone’s body. According to Smiley, Lee ultimately placed Stone’s body in a freezer. Smiley stated that Lee had asked him to get a 55-gallon drum so that he could burn Stone’s body, but he had not done so at the time he gave his statement to police.

Hopper testified that on July 1, 2008, Stone’s body was located in a freezer at Lee’s residence. According to Hopper, Smiley was arrested at that time and charged with murder. Hopper stated that the gun used to kill Stone was recovered shortly thereafter.

David Dubose, Smiley’s probation officer, testified that Smiley was placed on probation on June 13, 2008. Dubose testified that he did not learn he had been arrested and charged with murder until sometime in August 2008. Dubose testified that he notified Smiley of the basis for the revocation of his probation — committing a new offense while on probation and failing to avoid injurious and vicious habits.

After considering the evidence presented at the probation-revocation hearing, the circuit court, on September 18, 2008, entered an order revoking Smiley’s probation. In its order, the court, in pertinent part, stated:

“[T]he Court is of the opinion that, although the Etowah murder took place prior to the time of [Smiley’s] June 13, 2008, plea, conviction and probation in Lee County for Unlawful Distribution of a Controlled' Substance, [Smiley] violated his probation. According to [Smiley’s] statement, he participated in contemporaneous events intended to cover up the murder, which would be part of the res gestae of the charged crime, up until his confession on July 1, 2008.”

This appeal followed.

On appeal, Smiley contends that the circuit court erred in revoking his probation based on alleged misconduct that occurred before he was sentenced and placed on probation. In Rutledge v. State, 512 So.2d 824 (Ala.Crim.App.1987), this court held that criminal charges based on conduct occurring before sentences were imposed and probation ordered could not properly form the basis for the revocation of probation. This court explained:

“We stated the general rule in Wilcox v. State, 395 So.2d 1052 (Ala.Cr.App.1980), rev’d on other grounds, 395 So.2d 1054 (Ala.1981), that there can be no violation of a term or condition of probation other than by commissive or omis-sive conduct during the probationary period. See also Sides v. State, 455 So.2d 48 (Ala.Cr.App.1984); Malloy v. State, 380 So.2d 501 (Fla.Dist.Ct.App.1980); Demchak v. State, 351 So.2d 1053 (Fla.Dist.Ct.App.1977); O’Steen v. State, 261 So.2d 208 (Fla.Dist.Ct.App.1972); N. Cohen and J. Gobert, The Law of Probation and Parole § 9.05 (1983). The rule is based on the rationale that the offender did not break a condition because no such condition was in effect at the time of the wrongful acts.
“In reviewing our disposition in Wilcox, our supreme court adopted the general rule stated above and expanded it to include the proviso that probation may be revoked where a defendant commits a crime while under a probationary sentence, although prior to the effective date of the probationary portion of the sentence. See also Touch v. State, 399 So.2d 934 (Ala.Cr.App.1981).”

512 So.2d at 825.

In the instant case, Smiley pleaded guilty on June 13, 2008, to unlawful possession of drug paraphernalia. That same day, the circuit court suspended the imposition of its sentence of one year’s imprisonment and ordered Smiley to complete one year of supervised probation. The evidence presented at the probation-revocation hearing established that almost three months before Smiley received a suspended sentence and was placed on probation, Smiley engaged in the alleged misconduct that resulted in his arrest for murder. The circuit court subsequently revoked Smiley’s probation based on his alleged misconduct occurring almost three months before the imposition of his sentence and his award of probation.

The State encourages this Court to revisit its decision in Rutledge given the circumstances of this particular case, particularly the nature of Smiley’s new criminal offense and the fact that Smiley’s alleged participation in Stone’s murder was unknown to the circuit court at the time it imposed its sentence. The State contends that this court should adopt the position of Tennessee appellate courts, which allows a trial court to consider, for the purposes of revocation, offenses not disclosed at the time probation is granted. See State v. Williams, 52 S.W.3d 109, 122-23 (Tenn.Crim.App.2001); State v. Stubblefield, 953 S.W.2d 223 (Tenn.Crim.App.1997). However, Alabama’s position on this issue is in accord with other jurisdictions. See State v. Ballensky, 586 N.W.2d 163 (N.D.1998); Patuxent Inst. Bd. of Review v. Hancock, 329 Md. 556, 620 A.2d 917 (1993); Smith v. State, 742 So.2d 1146 (Miss.1999); State v. Bennett, 177 P.3d 428 (Kan.Ct.App.2008) (unpublished opinion); Malloy v. State, 380 So.2d 501 (Fla.Dist.Ct.App.1980); and State v. Deptula, 34 Conn.App. 1, 639 A.2d 1049 (1994). Athough we agree with the State’s contention that the circumstances surrounding Stone’s death are egregious, we are not inclined to overrule our decision in Rutledge.

Because the circuit court relied on alleged misconduct by Smiley that occurred almost three months before the court sentenced him and placed him on probation, the circuit court’s order revoking Smiley’s probation is due to be reversed. Rutledge, supra. The circuit court is directed to set aside its July 25, 2008, order revoking Smiley’s probation.

REVERSED AND REMANDED WITH DIRECTIONS.

WELCH and WINDOM, JJ., concur.

WISE, P.J., concurs in the result.