text:
    S.L.L. v. L.S.
    2090133.
    Court of Civil Appeals of Alabama.
    April 2, 2010.

      Eric N. Snyder, Anniston, for appellant.
    Scott F. Stewart of Stover, Stewart & Phillips, LLC, Gadsden, for appellee.
   MOORE, Judge.

S.L.L., the father, appeals from a judgment transferring custody of H.R.S., the child, to L.S., the mother. We reverse.

Background

On September 4, 2009, the mother filed a petition in the Etowah Juvenile Court seeking to modify custody of the child and seeking to hold the father in contempt of court. The father answered the petition, generally denying the allegations asserted therein. The juvenile court conducted a hearing on the mother’s petition on September 30, 2009; ore tenus evidence was received at that hearing.

On October 26, 2009, the juvenile court entered its “Custody and Visitation Order.” In that judgment, the juvenile court made specific findings of fact and concluded that the mother had met the custody-modification standard set forth in Ex parte McLendon, 455 So.2d 863 (Ala.1984). Thus, the juvenile court ordered a transfer of custody from the father to the mother. The juvenile court found no just reason for delay and, pursuant to Rule 54(b), Ala. R. Civ. P., made the order final. The father timely filed a postjudgment motion, seeking to alter, amend, or vacate the judgment; the juvenile court denied the father’s motion.

The father timely appealed to this court. On appeal, the father asserts that the mother failed to meet the standard set forth in Ex parte McLendon, supra.

Evidentiary Background

The record before us establishes the following. At the time of the custody hearing, the child was five years old. The mother acknowledged that, in September 2006, she had tested positive for cocaine upon the birth of her second child, K.S. At that time, the Department of Human Resources became involved with the family, a dependency petition was eventually filed, and the father was awarded custody of the child. Although the record before this court contains none of the pleadings filed or the orders entered in any of the earlier juvenile-court actions involving the parties, it appears from references made by the juvenile court and in the parties’ testimony that, on February 26, 2009, the juvenile court awarded the mother and the father joint legal custody of the child with the father remaining the physical custodian of the child.

By September 2009, the mother had filed this petition to modify custody with the juvenile court. At the hearing on her petition, the mother complained that the father had not notified her of a certain field trip scheduled for the child’s kindergarten class and that the father either did not notify her or was unaware that the child’s class was making school pictures on a specified date. The mother testified that she had been forced to communicate with the school to obtain such dates because the father had refused to relay them to her. The mother claimed that she had had similar problems when the child attended pre-kindergarten the preceding year; according to the mother, the father had not notified her of the child’s pre-kindergarten graduation ceremony. The father denied the mother’s version of events and testified that he had merely forgotten the date of the field trip referred to by the mother and that he did not consider school pictures to be an event requiring notice to the mother. He also pointed out that the child had been attending kindergarten for only approximately six weeks at the time of the September 30, 2009, modification hearing.

The mother also testified that she had had difficulty leaving school with the child one day after a field trip. According to the mother, the child’s teacher had indicated to her that the father had instructed the school not to release the child to the mother without the father’s written permission and that, on that occasion, the father had not given his written permission. After the teacher contacted the father to verify that the child could be released to the mother, the mother was able to leave with the child. According to the mother, the father’s failure to place the mother on the school’s “checkout” list was in violation of the juvenile court’s previous order.

The mother alleged that the father had notified her of a dental appointment for the child and that she had taken time off from work to attend that appointment. She then learned that the father or the child’s paternal grandmother had changed the date of the appointment at the last minute without informing the mother. As a result, the mother was required to take additional time off from work to attend the appointment on the rescheduled day. The father testified that he notified the mother of all scheduled doctor appointments and that he had notified the mother of the correct date for the child’s dental appointment. He testified, however, that when the child has been sick all night and needs to go to the doctor, the mother “is the last thing on my mind in the morning, it’s to get [the child] to the doctor, get him some antibiotic, and get him better, but any doctor’s appointments like for next week or something, [the mother] knows all about it.”

The mother testified that she was unable to reach the child by telephone during the evenings and was forced to continuously telephone the father in an attempt to talk with the child. She testified that she would “call all day long until I can talk to [the child].” The mother testified that she believed that the father and the paternal grandmother were attempting to eliminate the mother from the child’s life. The father complained that the mother called his home telephone and his cellular telephone as many as eight times a day, but, he testified, if the child was available, he was allowed to talk with the mother.

The mother also testified that she had offered to buy school clothes for the child but that the paternal grandmother had told the mother they were not needed. She also complained that she had purchased a pair of “light-up” shoes for the child and that the father or the paternal grandmother had allowed the child to wear the shoes into the river and damage them. The father testified that he initially had not accepted the mother’s offers of assistance because he had not needed the help. The father testified that he eventually told the mother that, if she wanted to help, she could pay a pre-kindergarten bill that remained outstanding.

The mother testified that the father was not actively involved in caring for the child. She testified that the paternal grandmother, rather than the father, was the child’s primary caregiver. The mother explained that the paternal grandmother had recently “blacked out,” causing her to fall and break her ribs; the paternal grandmother was hospitalized as a result of her medical problems. The mother complained that, during the paternal grandmother’s nine-day hospitalization, the father had sent the child out of state to stay with a paternal aunt rather than asking the mother to assist in caring for the child. The father admitted that he had not asked the mother to assist him, and he acknowledged that the mother would not be his first choice to help care for the child because, he testified, the mother would then argue in court that the father had been unable to properly care for the child without the mother’s help.

The father admitted that the paternal grandmother often dressed the child for school, drove the child to school on certain days, and usually picked the child up from school if the father was working. The father acknowledged that he had not yet attended a kindergarten field trip with the child, but, he testified, he had attended field trips during the child’s pre-kindergar-ten year. The mother also testified that the father did not know the name of the child’s current dentist and that the child had significant dental needs. The father could not identify the dentist by name, but he identified the location of the dentist’s office. The mother and the father disagreed as to which dentist to use.

The mother also testified that the father was unaware that the child’s cough syrup had not been returned with the child on one occasion. The mother testified that she had inadvertently left the cough syrup on her counter and did not discover it there until some time later. At some point after she discovered that she had not returned the medication, the mother called to ask the father if the child had taken all of his cough syrup; the father indicated that the child had finished all of it. The father admitted that he had not been truthful with the mother and testified: “I know I lied, because I [knew] she’d bring it up to me in court.” The father, however, testified that, upon learning that he did not have the cough syrup, he had contacted the child’s pediatrician who had instructed the father that, if the child needed it, to give the child another of his medications instead of the cough syrup.

The mother also testified that the child had missed a large portion of the first two weeks of kindergarten because he had not had received all of the necessary immunizations. The father testified that the child suffered with asthma and that the child had missed school because he had been sick. The father admitted that he had taken the child to the doctor and that, while there, the child had received four shots; the father, however, denied that the child was behind schedule in receiving those shots. The father also testified that one of those shots was a flu shot.

The mother complained because the father had not attended any of the child’s “T-ball” games. According to the mother, she had attended all the child’s practices and all the games but one. The father testified that he had to work on Saturdays, the only day the team played, and, thus, could not attend the games but that he had attended some of the child’s practices.

The mother claimed that she had paid child support to the father, but she admitted that she had never given the father money directly. The mother claimed that she had paid for the child’s school lunches and that she had purchased other items needed by the child, but, she testified, she had refused to give the father money. The mother testified that she did not believe the father would use any money that she gave him for the benefit of the child. The father testified that the mother had given him $25 cash; he also acknowledged that the mother had paid for school lunches and other items, but, he testified, the mother had not paid child support.

The mother acknowledged that she had made mistakes in the past — using cocaine and becoming involved with “Jonathan,” a man having an extensive criminal record and with whom she had engaged in a violent relationship. She testified that she had improved her circumstances significantly since the child had been removed from her custody. The mother testified that she had not used illegal substances since her 2006 positive drug test, that she was no longer seeing “Jonathan,” and that she was now working and attending classes. The mother testified that her schedule was flexible and would allow her to work around the child’s school schedule. She was living with the child’s maternal grandmother, the maternal stepgrandfa-ther, and K.S., the child’s half sister. The mother acknowledged that the child would attend a different school than the one he was currently attending if custody was awarded to her.

The maternal grandmother testified that she was on disability and regularly took tramadol, a non-narcotic pain medication. She acknowledged that she had been involved in filing the earlier petition to remove custody of the child from the mother. The maternal grandmother explained that the mother had not been making good choices at the time that earlier petition was filed. According to the maternal grandmother, the mother was doing much better now and had continued to improve even after the last hearing, at which the juvenile court had awarded the mother joint legal custody of the child. The maternal grandmother testified that the mother continued to live with her. The maternal grandmother also testified that, although the mother was receiving food stamps, the mother provided financially for both of her children and that the mother worked and attended school. According to the maternal grandmother, the mother provided the majority of KS.’s care and the maternal grandmother cared for K.S. when the mother was working or attending classes. According to the maternal grandmother, the mother had never missed a scheduled visit with the child. The maternal grandmother believed that the child should now be returned to the mother’s custody.

Based on the testimony received ore tenus at the modification hearing, the juvenile court made the following findings:

“When this Court removed the mother as a joint custodian, by Order dated August 27, 2008, the Court placed alternating weekly custody in the father and the maternal grandmother.... The Court was aware that the father lived in the home of the paternal grandmother, and that she would provide a substantial amount of the daily care for the child. The Court has never been confident that the father could provide for this child by himself without assistance. The testimony presented at the recent hearing further convinces the Court that the mother has rehabilitated herself and can provide for the daily care of the child and that the father is still unable to do so without the assistance of the paternal grandmother. The paternal grandmother was not present and did not testify. This causes the Court a great deal of concern. The testimony revealed that the father is not cooperating with the mother and is not providing her with information about the child’s school events and medical needs. The mother had difficulty checking the child out of school despite the 02/26/2009 Order awarding her joint custody, and the father had not signed a permission slip. Shoes purchased by the mother were allowed to be worn by the child in the river. The father was unaware of the child’s picture day at school. The mother is forced to obtain information from the school rather than from the father or the paternal grandmother. The mother took off from work to attend the child’s dentist appointment, and the father had given the mother the wrong date. The mother had to take another day off from work. The mother has experienced difficulty contacting the child at night by telephone. The paternal grandmother had a medical emergency and was hospitalized. Rather than inform the mother and allow her to keep the child during this time, the father sent the child to a paternal aunt out of state. The father attended some of the child’s T-ball practices but not the games. The father missed a field trip with the child because he had the wrong date. The father did not know the name of the child’s dentist. The father failed to tell the mother of another school outing because he lost the paper. The father or the paternal grandmother changed doctors’ appointments and failed to notify the mother or the maternal grandmother. All of these events convince the Court that [the father] does not intend to cooperate with the mother in a joint shared custody arrangement where he is the primary physical custodian. A change of primary physical custody to the mother will materially promote the child’s best interests and welfare, and the positive good brought about by the change will more than offset the disruptive effect caused by the change.”

Standard of Review

The standard of appellate review of a child-custody judgment based on ore tenus evidence is deferential.

“ ‘When evidence in a child custody case has been presented ore tenus to the trial court, that court’s findings of fact based on that evidence are presumed to be correct. The trial court is in the best position to make a custody determination — it hears the evidence and observes the witnesses. Appellate courts do not sit in judgment of disputed evidence that was presented ore tenus before the trial court in a custody hearing.’ ”

Burgett v. Burgett, 995 So.2d 907, 912 (Ala.Civ.App.2008) (quoting Ex parte Bryowsky, 676 So.2d 1322, 1324 (Ala.1996)).

“ ‘However, even under the ore tenus rule, “[w]here the conclusion of the trial court is so opposed to the weight of the evidence that the variable factor of witness demeanor could not reasonably substantiate it, then the conclusion is clearly erroneous and must be reversed.’” B.J.N. v. P.D., 742 So.2d 1270, 1274 (Ala.Civ.App.1999) (quoting Jacoby v. Bell, 370 So.2d 278, 280 (Ala.1979)).”

Cheek v. Dyess, 1 So.3d 1025, 1029 (Ala.Civ.App.2007). Moreover, the ore tenus rule does not apply to a trial court’s legal conclusions. Ex parte Cater, 772 So.2d 1117, 1119 (Ala.2000).

Analysis

In order to obtain a custody modification, the mother was required to meet the burden set out in Ex parte McLendon, supra. That standard and its application is well established.

“ ‘In situations in which the parents have joint legal custody, but a previous judicial determination has granted primary physical custody to one parent, the other parent, in order to obtain a change in custody, must meet the burden set out in Ex parte McLendon[, 455 So.2d 863 (Ala.1984)]. See Scholl v. Parsons, 655 So.2d 1060, 1062 (Ala.Civ.App.1995). The burden set out in McLendon requires the parent seeking a custody change to demonstrate that a material change in circumstances has occurred since the previous judgment, that the child’s best interests will be materially promoted by a change of custody, and that the benefits of the change will more than offset the inherently disruptive effect resulting from the change in custody. Ex parte McLendon, 455 So.2d at 866.’
“Dean v. Dean, 998 So.2d 1060, 1064-65 (Ala.Civ.App.2008).
“In order to prove a material change of circumstances, the noncustodial parent must present sufficient evidence indicating (1) that there has been a change in the circumstances existing at the time of the original custody judgment or that facts have been revealed that were unknown at the time of that judgment, see Stephens v. Stephens, 47 Ala.App. 396, 399, 255 So.2d 338, 340-41 (Civ.App.1971), and (2) that the change in circumstances is such as to affect the welfare and best interests of the child. Ford v. Ford, 293 Ala. 743, 310 So.2d 234 (1975). The noncustodial parent does not have to prove that the change in circumstances has adversely affected the welfare of the child, but he or she may satisfy the first element of the McLendon test by proving that the change in circumstances materially promotes the best interests of the child. Id.”

C.D.K.S. v. K.W.K., 40 So.3d 736, 739-740 (Ala.Civ.App.2009). Regarding the burden placed on the parent seeking to modify custody, this court has stated: “ ‘ “[T]his is a rule of repose, allowing the child, whose welfare is paramount, the valuable benefit of stability and the right to put down into its environment those roots necessary for the child’s healthy growth into adolescence and adulthood.” ’ ” Pitts v. Priest, 990 So.2d 917, 922 (Ala.Civ.App.2008) (quoting Ex parte McLendon, 455 So.2d at 865, quoting in turn Wood v. Wood, 333 So.2d 826, 828 (Ala.Civ.App.1976)).

Based on the record before us, we cannot agree that the mother met her burden of proof. Of all the mother’s complaints, the most significant appeared to be that the father was unable to independently care for the child and that the paternal grandmother, rather than the father, was the primary caregiver for the child. In its “Custody and Visitation Order,” however, the juvenile court acknowledged that, at the time custody of the child was initially awarded to the father, it had been aware that the paternal grandmother “would provide a substantial amount of the daily care for the child.” Because at the time the juvenile court awarded custody of the child to the father the juvenile court fully expected the father to require a significant amount of assistance from the paternal grandmother, the evidence indicating that the paternal grandmother, in fact, provided such assistance to the father does not indicate a change in circumstances warranting a custody modification. See, e.g., Cochran v. Cochran, 5 So.3d 1220, 1229-30 (Ala.2008) (recognizing that conditions or circumstances that, at the time of the initial custody award, were expected to occur and that, in fact, subsequently occurred were not a proper basis for a custody modification).

Additionally, the father’s decision to allow the child to visit with an out-of-state aunt while the paternal grandmother was hospitalized fails to provide a basis for a custody modification. At the time the father allowed the child to visit the out-of-state aunt, the father was vested with primary physical custody, and there is no indication that the visit interfered with the mother’s scheduled visitation.

The remainder of the mother’s complaints—that the father failed to keep her informed of certain upcoming school events and doctor’s appointments scheduled for the child and that she was sometimes unable to reach the child by telephone—are best characterized as an alleged lack of cooperation, which is generally an insufficient basis on which to modify custody. See Rose v. Jackson, 47 So.3d 273, 275 (Ala.Civ.App.2009) (recognizing that visitation disputes are not an appropriate basis, on their own, on which to modify custody); Foster v. Carden, 515 So.2d 1258, 1260 (Ala.Civ.App.1987) (accord); and Smith v. Smith, 464 So.2d 97, 100 (Ala.Civ.App.1984) (accord). Thus, those allegations, even if true, do not rise to the level necessary to warrant a custody modification.

We also note that the record is almost wholly devoid of evidence tending to show how a custody modification would materially promote the child’s best interests and welfare, as required by Ex parte McLendon, supra. The evidence failed to establish that the father’s alleged omissions in cooperating or communicating with the mother had negatively impacted the child or that the child would significantly benefit from being placed in the mother’s custody. See McLendon, supra; and C.D.K.S. v. K.W.K., 40 So.3d at 739 (recognizing that the change in circumstances relied upon for a custody modification must be such as to affect the welfare and best interests of the child either in an adverse or beneficial manner).

For example, although the mother complained that the father relied heavily on the paternal grandmother to care for the child, the mother also requires assistance in caring for the child when the child is in her custody. The maternal grandmother testified that she cares for the child while the mother works and attends classes. Accordingly, neither the mother nor the father is capable of caring for the child without assistance. Thus, we see no benefit to be gained by the child from a custody modification based upon the father’s reliance on the paternal grandmother to assist with the child while he works.

We further note that, although the mother’s rehabilitation and the positive path on which she appears to be is commendable, such rehabilitation alone is an improper basis for regaining custody. See Ex parte McLendon, 455 So.2d at 866 (“It is not enough that the parent show that she has remarried, reformed her lifestyle, and improved her financial position. The parent seeking the custody change must show not only that she is fit, but also that the change of custody ‘materially promotes’ the child’s best interest and welfare.” (citations omitted)). Because the mother failed to meet the burden of proof required of her by Ex parte McLendon, supra, the judgment of the juvenile court modifying custody is due to be reversed. We remand the cause to the juvenile court for the entry of a judgment consistent with this opinion.

REVERSED AND REMANDED.

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

      . Although the father’s notice of appeal was filed before the juvenile court denied his post-judgment motion, the appeal was held in abeyance pending the disposition of that post-judgment motion. See Rule 4(a)(5), Ala. R.App. P.

      . Custody of K.S. is not at issue in this action.

      . According to the juvenile court, it had conducted five full hearings "on this matter." The record is unclear if the juvenile court was referring to hearings related to this action, case no. JU-06-545.04, or if the juvenile court was referring to hearings held in connection with previous actions. The record contains only the pleadings filed in the ".04” matter and a transcript of the juvenile court's September 30, 2009, hearing. As a result, the juvenile court's previous custody orders were not made a part of the record in this case, and the record contains conflicting information as to the date the father obtained custody of the child.

      . It appears that the father filed no objection to this petition, even though only six months had elapsed since the juvenile court had last modified custody of the child. Additionally, the parties’ custody dispute was properly before the juvenile court, which had previously adjudicated the dependency of the child. Although Ala.Code 1975, § 12-15-114(a), apart of the new Alabama Juvenile Justice Act in which the original jurisdiction of juvenile courts is addressed, provides that "[a] dependency action shall not include a custody dispute between parents,” Ala.Code 1975, § 12-15-117(a), provides that, "[ojnce a child has been adjudicated dependent, delinquent, or in need of supervision, jurisdiction of the juvenile court shall terminate when the child becomes 21 years of age unless, prior thereto, the judge of the juvenile court terminates its jurisdiction over the case involving the child.” See also W.B.G.M. v. P.S.T., 999 So.2d 971 (Ala.Civ.App.2008) (concluding that, because the juvenile court had previously exercised its jurisdiction and awarded custody of the child at issue, the juvenile court’s jurisdiction over that child continued; decided under the former Alabama Juvenile Justice Act).

      . The mother admitted that she had not contacted the father immediately upon discovering the cough syrup in her home because she wanted to see if the father would notice that it was missing; the mother admitted that she was attempting to "make a point” and that the child had not necessarily needed the medication.

      . There is no indication in the record that the mother was ordered to pay child support.


source: Caselaw Access Project

author: THOMAS, Judge.

license: Public Domain

text:
    Beverly J. HOWARD v. Judge Phillip W. WOOD.
    2081051.
    Court of Civil Appeals of Alabama.
    April 9, 2010.

      Robert D. Segall and Shannon L. Holli-day of Copeland, Franco, Screws & Gill, P.A., Montgomery, for appellant.
    Troy King, atty. gen., and Jack Wallace, Jr., asst. atty. gen., for appellee.
   THOMAS, Judge.

Beverly J. Howard appeals from a judgment of the Autauga Juvenile Court summarily finding her in contempt of court. We reverse and remand with instructions.

Howard is a licensed attorney and was representing a parent in a case before the juvenile court. While representing her client at a July 2009 hearing before Judge Phillip W. Wood, Judge Wood objected to conduct by Howard that he deemed as overly argumentative. Judge Wood summarily found Howard in contempt of court and ordered her to spend the night in jail. Howard appealed the juvenile court’s judgment to the Autauga Circuit Court. Howard’s appeal was subsequently transferred to this court, pursuant to Rule 28(D), Ala. R. Juv. P.

“The determination of whether a party is in contempt of court rests entirely within 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.” ’ Gordon v. Gordon, 804 So.2d 241, 243 (Ala.Civ.App.2001) (quoting Stack v. Stack, 646 So.2d 51, 56 (Ala.Civ.App.1994)).”

Stinson v. Larson, 893 So.2d 462, 470 (Ala.Civ.App.2004). Moreover, when a question is purely an issue of law, the ore tenus rule does not apply and appellate review is de novo. Keevan v. Keevan, 796 So.2d 379, 381 (Ala.Civ.App.2001).

Howard argues that the contempt judgment against her should be reversed because, she argues, Judge Wood did not comply with Rule 70A, Ala. R. Civ. P. Rule 70A provides the procedures governing contempt proceedings in civil cases. Rule 70A(b)(l) provides:

“Finding. The court may summarily find in contempt any person who commits a direct contempt, immediately notifying the person of its finding. The judge shall cause to be prepared a written order reciting the grounds for the finding, including a statement that the judge observed the conduct constituting the contempt. The order shall be signed by the judge and entered of record.”

Howard argues that Judge Wood did not follow Rule 70A(b)(l) because Judge Wood did not prepare a signed, written order and because he did not enter an order on the record. In his brief, Judge Wood concedes that he did not follow the requirements of Rule 70A(b)(l) and agrees with Howard that the contempt judgment against Howard should be reversed on that ground. We agree that because Judge Wood did not prepare a signed, written order and then enter that order on the record, as required by Rule 70A(b)(l), the contempt judgment against Howard is due to be reversed.

Howard also argues, and Judge Wood agrees, that remanding the cause for Judge Wood to comply with Rule 70A would serve no purpose in this case. Both parties urge this court to order a dismissal of the contempt proceeding against Howard because, the parties argue, the purpose of the contempt judgment — to maintain order and decorum in the courtroom— has already been served. There are no Alabama cases on this issue that are directly on point. In support of this argument, both parties cite United States v. Schrimsher, 493 F.2d 842 (5th Cir.1974); Schrimsher construed Rule 42(a), Fed. R.Crim.P., which, at the time Schrimsher was decided, contained provisions similar to the provisions of Rule 70A(b)(l), Ala. R. Civ. P. In Schrimsher, after first concluding that the judgment of contempt in that case should be reversed, the United States Court of Appeals for the Fifth Circuit held:

“From the sentence imposed by the judge in this case, it is clear that he was primarily concerned with the preservation of order in the courtroom during the trial in which [the attorney] was participating. Since that trial is long since concluded, we think a proper disposition of this case is to reverse the order of contempt and to dismiss the proceedings against [the attorney].”

493 F.2d at 845. In this case, as in Schrimsher, Judge Wood found Howard in contempt because he was concerned with maintaining order and decorum in the courtroom. In addition, as in Schrimsher, the trial in this case has long since concluded. Thus, we find the arguments by both parties and the reasoning in Schrimsher persuasive in this case. Therefore, we reverse the trial court’s judgment finding Howard in contempt and remand the cause to the trial court with instructions for that court to dismiss the contempt proceedings against Howard.

REVERSED AND REMANDED WITH INSTRUCTIONS.

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

      . Judge Wood retired from the bench, effective January 1, 2010.

      . Rule 28(D), Ala. R. Juv. P., provides that, in a juvenile case, "[a]n appellate court or circuit court may transfer an appeal that it determines should have been transferred to or brought in another court to that other court.”


author: PITTMAN, Judge.

text:
    HONDA MANUFACTURING OF ALABAMA, LLC v. Ronald W. ALFORD.
    2080801.
    Court of Civil Appeals of Alabama.
    April 9, 2010.

      Stephen J. Bumgarner of Burr & For-man LLP, Birmingham, for appellant.
   PITTMAN, Judge.

Honda Manufacturing of Alabama, LLC (“the employer”), appeals from a judgment entered by the Etowah Circuit Court, on remand from this court’s decision in Honda Manufacturing of Alabama, LLC v. Alford, 6 So.3d 22 (Ala.Civ.App.2007) (“Alford I ”), on a workers’ compensation claim brought against the employer by Ronald W. Alford (“the employee”). Because that judgment does not comply with our mandate in Alford I, we reverse and remand.

As we noted in Alford I, the employee brought an action in January 2005 against the employer seeking an award of benefits under the Alabama Workers’ Compensation Act, § 25-5-1 et seq., Ala.Code 1975 (“the Act”), based upon an alleged permanent and total disability stemming from an occupational injury to his left knee. The employer, in its answer, among other things, denied that the employee had suffered a permanent and total disability and stated that the employee had failed to give the employer proper notice of his injury. After an ore tenus proceeding, the trial court entered a judgment in which that court awarded benefits under the Act inuring to employees that suffer a permanent and total disability to the body as a whole, specifically determining (a) that the employee’s work-related knee injury had resulted in a subsequent injury to the employee’s lower back (ie., a ruptured lumbar disk) and that the knee and back injuries together had inhibited the employee’s ability to perform certain job functions and placed additional physical restrictions and limitations on his activities, and (b) that the employer had had notice of the employee’s work-related injury. The employer appealed from that judgment, challenging both the pi’opriety of the award of benefits outside the injury schedule in the Act, under which a claimant sustaining an injury resulting in a loss of use of a leg (such as the employee’s knee injury in this case) is ordinarily to be compensated for a specified number of weeks based upon a fraction of the injured claimant’s weekly wages (see Ala.Code 1975, §§ 25-5-57(a)(3)a.l6. and 25-5-57(a)(3)d.), and the determination that proper notice had been provided by the employee.

In Alford I, which was decided in October 2007, although we affirmed the trial court’s judgment as to the notice issue, we reversed the judgment as to the trial court’s permanent-total-disability award, relying upon our May 2007 decision in Boise Cascade Corp. v. Jackson, 997 So.2d 1026, 1034-35 (Ala.Civ.App.2007) (“Jackson /”), for the proposition that “an employee who sustains an injury to a scheduled member is to be awarded compensation based upon the schedule unless ‘ “ ‘the effects of the loss of the member extend to other parts of the body and interfere with their efficiency,’ ” ’ i.e., ‘the injury to the scheduled member [must] be “ ‘accompanied by other physical disability (of the body).’”’” 6 So.3d at 26-27. In so holding, we noted that “[n]o medical evidence connected the medical conditions present in the employee’s spinal column to the knee injury he had sustained while working for the employer” and that “no medical evidence adduced at trial would support anything other than the mere possibility that a lower-extremity injury could have caused back pain via a change in the injured person’s gait.” 6 So.3d at 28-29. Although our mandate based upon those conclusions allowed the trial court to either elect to enter a new judgment or to conduct further proceedings, the trial court’s choice was mandated to be “consistent with this court’s opinion” in Alford I. 6 So.3d at 29. Specifically, we stated that because the employee’s injury fell within the schedule of members in the Act, the trial court on remand was to “ ‘calculate the scheduled disability benefits without consideration of any ... evidence of vocational disability.’ ” Id. (quoting Jackson I, 997 So.2d at 1037-38).

On November 9, 2007, the employer timely filed a petition for a writ of certio-rari in the Alabama Supreme Court challenging this court’s decision as to notice. Although Jackson I was undergoing cer-tiorari review in the Alabama Supreme Court at the time that Alford I was decided, the employee filed neither an application for rehearing nor a petition for certio-rari challenging the correctness of this court’s decision as to the extent of his injury. One week after the employer’s certiorari petition was filed, on November 16, 2007, the Alabama Supreme Court issued its opinion in Ex parte Jackson, 997 So.2d 1038 (Ala.2007) (“Jackson II”), reversing this court’s judgment in Jackson I to the extent that we had interpreted the Alabama Supreme Court’s previous decisions as “creating a requirement for a permanent physical injury to other parts of the body in order to take the injury out of the schedule.” 997 So.2d at 1040. On October 10, 2008, the Alabama Supreme Court denied certiorari review in Alford I, and this court’s certificate of judgment remanding the case was transmitted on October 14, 2008.

On October 21, 2008, the trial court set the case for a hearing. Before that hearing, the parties presented briefs concerning whether the trial court was bound to carry out the mandate of this court as set forth in Alford I in light of the Alabama Supreme Court’s intervening decision in Jackson II — the employer contending that the trial court was bound to strictly comply with the mandate of Alford I and the employee contending that Jackson II compelled a conclusion that the trial court’s original judgment was correct and should be reentered. After a hearing, at which no new evidence was presented, the trial court entered a judgment on April 28, 2009, purporting to confirm its prior judgment, opining that “to enter an order consistent with [Alford I ] would require that [that court] enter an order it believes to be inconsistent with” Jackson II. The employer again appealed, contending that the trial court’s judgment is inconsistent with the mandate of this court in Alford I; the employee has not favored this court with a brief.

We agree with the employer. “When a case is remanded to a trial court after a decision on appeal, ‘issues decided by the appellate court become law of the case and the trial court’s duty is to comply with the appellate mandate....’” Erbe v. Eady, 447 So.2d 778, 779 (Ala.Civ.App.1984) (quoting Walker v. Carolina Mills Lumber Co., 441 So.2d 980, 982 (Ala.Civ.App.1983)). We further noted in Erbe that “[t]he trial court is not free to reconsider issues finally decided in the mandate.” Id. (emphasis added). The decisions of the Alabama Supreme Court are in accord with Erbe. See Gray v. Reynolds, 553 So.2d 79, 81 (Ala.1989); Auerbach v. Parker, 558 So.2d 900, 902 (Ala.1989) (noting principles set forth in Erbe and further noting authorities for the proposition that when a cause is remanded with directions as to the judgment to be entered, that judgment should be entered without a new trial).

In Alford I, we directed the trial court to proceed in a manner “consistent with [our] opinion” — an opinion in which we determined that the trial court’s earlier conclusion that the employee’s knee injury had affected his back so as to render the schedule in the Act inapplicable was not “supported by substantial evidence” (6 So.3d at 29) — and we specifically instructed the trial court to calculate scheduled disability benefits without consideration of any evidence of vocational disability that might be pertinent to a injury outside the schedule. It is well settled that “[t]he issues decided by an appellate court become the law of the case on remand to the trial court, and the trial court is not free to reconsider those issues”; further, “ ‘whatever is once established between the same parties in the same case continues to be the law of that case, whether or not correct on general principles, so long as the facts on which the decision was predicated continue to be the facts of the case.’” Ex parte S.T.S., 806 So.2d 336, 341 (Ala.2001) (emphasis added; quoting Blumberg v. Touche Ross & Co., 514 So.2d 922, 924 (Ala.1997)). The trial court’s judgment entered on remand from this court in Alford I, after a reexamination of the facts previously presented, by no means fulfills the trial court’s duty “ ‘to comply strictly with [our] mandate ... according to its true intent and meaning.’ ” Ex parte Alabama Power Co., 431 So.2d 151, 155 (Ala.1983) (emphasis added; quoting 5 Am.Jur.2d Appeal & Error § 991 (1962)).

It may prove to be true that, in a different case, our holding in Alford I will be reexamined and found to be inconsistent with the later decision of the Alabama Supreme Court in Jackson II. In other words, it remains to be seen whether the permanent-disability issue was correctly decided in Alford I ‘“on general principles’ ” (see Ex parte S.T.S., 806 So.2d at 341). However, as we noted in Erbe, “ ‘[i]f circumstances arise that cast doubt on the correctness of the law of the case as established on appeal, arguments in support of departure from the mandate must be addressed to the appellate court.’” 447 So.2d at 779 (emphasis added; quoting IB James W. Moore et al., Moore’s Federal Practice ¶ 0.404[10] (2d ed.1983)). The employee had the opportunity to seek rehearing in this court, or certiorari review in the Alabama Supreme Court, as to the correctness of this court’s determination regarding the extent of his injury while Jackson I was being reviewed by the Alabama Supreme Court, but he did not take that opportunity, and the trial court erred in thereafter undertaking its own reexamination of the issues, which had been previously authoritatively decided, in violation of the mandate of this court.

The trial court’s April 29, 2009, judgment is reversed, and the cause is again remanded. Upon the issuance of our certificate of judgment, the trial court is to enter a judgment, based upon the existing record, that awards benefits under the Act to the employee based upon an injury to a scheduled member, in accordance with Ala. Code 1975, §§ 25-5-57(a)(3)a.l6. and 25-5-57(a)(3)d., Alford I, and this opinion.

REVERSED AND REMANDED WITH INSTRUCTIONS.

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

      . "[T]he issue of whether a lower court correctly interpreted and followed our decision after remandment can be reviewed either by appeal or on a petition for mandamus.” Ex parte Lewis, 540 So.2d 753, 754 (Ala.Civ.App.1988).


author: WELCH, Judge. MAIN, Judge,

text:
    Towanda TAITE v. STATE of Alabama.
    CR-07-2246.
    Court of Criminal Appeals of Alabama.
    Nov. 13, 2009.
    Rehearing Denied Jan. 22, 2010.
    Certiorari Denied April 23, 2010 Alabama Supreme Court 1090599.

      Joseph L. Fitzpatrick, Jr., Montgomery, for appellant.
    Troy King, atty. gen., and Stephanie E. Reiland, asst. atty. gen., for appellee.
   WELCH, Judge.

This appeal arises out of the misappropriation of funds from the Wilcox County Water/Waste Department, where Towanda Taite and codefendant Sylvia Ross had been employed. Taite was charged by a Wilcox County grand jury in case no. CC-07-2006 with theft of property in the first degree, a violation of § 13A-8-3, Ala.Code 1975, and with a violation of the State ethics laws — using her official position or office for personal gain, a violation of § 36-25-5, Ala.Code 1975. Identical charges were filed against Sylvia Ross in case no. CC-07-2007. Following a consolidated jury trial Ross and Taite were convicted of misapplication of property and of the ethics-laws violation. The trial court imposed on Taite a 1-year jail sentence for the misapplication-of-property conviction and a 10-year sentence for the ethics-laws conviction. The trial court suspended the sentences and ordered Taite to serve two years’ imprisonment followed by five years of supervised probation. The trial court further imposed an assessment of $10,000 and an assessment to be paid to the Crime Victims Compensation Commission. We reverse and remand for further proceedings.

Facts

The evidence presented at trial tended to show that a routine audit of the Wilcox County Water/Waste Department (“the Water Department”), where Taite and Ross were employed as clerks, revealed that the Water Department had received more than $11,000 in receipts that could not be accounted for on the morning of the audit. The auditor testified that Ross and Taite were the only two people with access to the Water Department’s receipts. Daily reports for six days revealed that money had been received at the office but had not been deposited at the bank. Taite told one of the auditors that the receipts were at the bank, so Taite and two auditors went to the bank together. Taite spoke to a teller at the bank and then told the auditors that the teller had not yet processed the deposits. No deposits were ever produced, and bank employees stated that there were no undeposited funds from the Water Department at the bank. The auditors contacted their supervisors and the Wilcox County Commission. The Wilcox County Sheriff’s Department was also notified.

During the morning of the audit, Taite took a bank bag from the Water Department to a teller at the bank where the Water Department’s funds were deposited; the bag contained no checks or currency, only duplicate copies of deposit slips. Taite asked the head teller to stamp the copies of the deposit slips as if the money represented by the slips had been deposited. Taite assured the teller that she would bring the money to the bank later. The teller refused to complete the transaction, and she notified her supervisor and the bank’s auditor.

After the Wilcox County Commission was notified that money was missing from the Water Department, Ross was interviewed by a Wilcox County sheriffs deputy. Ross told the deputy that she and Taite had been using money from the nightly deposit and that they had been replacing it. The auditors then conducted a second count of the cash at the Water Department’s office. This cash count revealed money in an envelope that had not been counted previously. When the auditors asked Taite where that money had been, Taite said that the money had been at the bank when the initial count had been conducted. Five additional deposits, comprising more than $9,000, were made at the bank that afternoon. All the money that had been missing during the auditors’ initial count of the receipts was accounted for by the end of the day.

After the trial, Taite filed a motion for a new trial in which she alleged, among other things, that one of the jurors, F.G., had presented extrinsic evidence to her fellow jurors during jury deliberations. Specifically, Taite alleged that F.G. had stated during deliberations that Taite had a prior conviction and had been imprisoned. Affidavits from three jurors were filed along with the motion for a new trial. Juror M.B. stated in her affidavit, in relevant part:

“I was a juror in the above referenced cases involving Sylvia Ross and Towan-da Taite.
“When we were in the jury room, someone in the jury room said that To-wanda Taite had already been in prison one time. I can not say for sure which juror said this. I do believe that this had an effect on the jurorsf] vote of guilty. My first vote was not guilty. [Jury foreman M.M.] told all the jurors that we were going to vote guilty on the second and third charges against each defendant. He said that everyone had to vote guilty as the first vote was seven guilty and five not guilty. [M.M.] told us the charges we were voting guilty for were lesser charges. I thought that both guilty charges were for lesser charges. Someone said that we had to find both defendants guilty. That we could not find one defendant guilty and one defendant not guilty.
“When the judge polled the jury after the verdict, I did not say that this was my verdict. The guilty verdicts were not my verdicts.”

(C. 61.)

Juror S.A. submitted an affidavit that stated, in relevant part:

“[Juror F.G.] said in the jury room that Towanda Taite had had a prior felony.
“[Jury foreman M.M.] said that we had to find both defendants the same. That we couldn’t find one guilty and one not guilty.
“I did not believe that the state had enough evidence or proof that either of the defendants were guilty. My vote from the beginning was not guilty.”

(C. 68.)

Finally, Juror N.F. submitted an affidavit and stated, in relevant part:

“I was a juror in the above referenced cases involving Sylvia Ross and Towan-da Taite.
“When we first took a vote in the jury room, the vote was seven guilty and five not guilty votes. [Jury foreman M.M.] told us that the guilty votes outweighed the not guilty and that we had to go along with the guilty. I had never been on a jury before and I thought it was what I had to do. My vote was not guilty. I did not voluntarily vote guilty. I did not vote guilty at all.
“One of the jurors, [F.G.], told us that if we didn’t convict, that they would both get their jobs back. She also told us that Towanda Taite had been to prison one time and that she needed to go back.
“[Jury foreman M.M.] told us that we had to find both defendants the same. That if one was guilty, then both were guilty.
“I did not believe that the state had enough evidence or proof that either of the defendants were guilty.”

(C. 65.)

The trial court held a hearing on the motion. Ten of 12 jurors testified at the hearing pursuant to subpoenas, including the 3 jurors who had submitted affidavits about the comments another juror had made during deliberations. The trial court conducted the questioning, and asked each of the jurors whether he or she recalled any juror making a statement during deliberations about one of the defendants’ having a prior conviction. Eight of the jurors testified that they remembered such a statement being made. The jury foreman, M.M., testified that the statement was made after the jury had determined that Ross and Taite were guilty. He said that when one of the jurors said that she hated to see the defendants be put in jail, another juror stated that “it shouldn’t matter to Towanda Taite because she’s already been in jail.” (R. 205.) Juror S.A., who had given an affidavit about the matter, testified that a fellow juror had stated that Taite had previously been convicted of a felony. S.A. stated that statement was made near the time the jury voted, and she testified that the information affected her vote. Specifically, S.A. testified, “Before that was mentioned, I was planning on voting — at the time — I reckon I can say that — not guilty. That was the vote I had in my mind to do.” (R. 208-09.) Juror P.O. testified that during the middle of deliberations a juror stated that Taite had “done time.” (R. 210.) P.O. testified that the statement did not affect her verdict. Juror M.B., who had also provided an affidavit after the trial, testified that a juror had stated that Taite previously had been to prison. When the trial court asked M.B. how the comment had affected her, M.B. answered, “Well, at one time, it affected me but then again, when I thought about it, it really didn’t bother me because I had already decided what I was going to vote.” (R. 212.) Juror S.C. testified that she could not recall any mention during deliberations of a prior conviction or sentence for either defendant. Juror N.F. testified that, before a verdict had been reached, Juror F.G. had stated that Taite had been to prison and that she needed to go back. N.F. further testified:

“We were getting ready to reach the verdict and we wanted to do — [Juror R.M.] asked could we do Sylvia Ross[’s] case first because we didn’t have no evidence on Towanda Taite. And that’s when [F.G.] said how could we do her case first when both them did the crime together. And she said we let them get off, they going to get they job back. Then she said she already been in prison and she needs to go back.”

(R. 215.)

When the trial court asked N.F. whether the statement affected her vote, N.F. replied, “Really my verdict was not guilty because I really think the State didn’t have enough evidence no way to convict her.” (R. 215.) The court asked N.F., “Yet you told me when I asked you that, that was your verdict?” N.F. replied, “Yeah. This [was] my first time being on a jury so I didn’t think that, you know, I didn’t know anything.” (R. 215.) The trial court then asked N.F. whether the jury had believed that the State had presented a stronger case against Ross than it had presented against Taite, and N.F. replied, “No, not really. First, we — see Sylvia Ross wrote the statement that said that her and To-wanda did take the money from the night deposit. But we didn’t see no handwriting that Towanda did anything.” (R. 216.)

Juror F.G. denied stating during deliberations that one of the defendants had previously been convicted or had been incarcerated. F.G. said that she heard someone else make that statement about Taite, however. F.G. testified that she could not recall the point during deliberations when the statement was made, and she said the statement did not affect her vote. When the trial court asked Juror B.H. whether she recalled a statement being made during deliberations about one of the defendants having a previous conviction or having been incarcerated, B.H. testified that she was not sure. Juror R.M. recalled hearing a statement from another juror indicating that Taite had been imprisoned or had a prior conviction. R.M. testified that hearing the statement did not affect her vote. Finally, Juror E.S. testified that near the end of deliberations, she heard someone state that Taite had previously “served time.” (R. 221) E.S. testified that the statement did not affect her vote.

The trial court entered a written order denying the motion for a new trial. The trial court stated, in relevant part:

“The only issue into which the Court may inquire is whether there was any outside influence or extraneous information ... brought into the deliberations. The Court allowed this inquiry and 10 of the jurors testified about this matter. The Court finds as a fact that a statement regarding Taite’s prior criminal conviction was made by one of the jurors during the deliberations. Every juror who was questioned, except 2, testified that it was mentioned. The other 2 did not testify that it was not mentioned, but that they could not recall. Every juror except the 3 who gave affidavits said it had no effect on the verdict. Those 3 said that it did affect them, but these are also the same 3 who, in their affidavits, testified that they either did not vote guilty or only voted guilty because the foreman told them that they had to. While the Court has found that there was extraneous information brought in by the mention of Taite’s prior criminal record, the Court does not believe that either the jury or its verdict was the result of this information. While prejudice is presumed, the Court finds that this presumption is overcome by the totality of the evidence. It appears that the information was a passing remark made that did not affect the verdict. The jurors themselves stated that either it did not affect them or they initially gave a different reason for attacking the verdict. As previously stated, the evidence clearly established the Defendant’s guilt.”

(C. 81-82.)

Analysis

On appeal, Taite raises two issues. First, she argues that the trial court erred when it denied the motion for a new trial based on alleged juror misconduct that occurred when Juror F.G. failed to reveal during voir dire examination that she knew that Taite had a prior conviction, and that this omission prevented her from receiving a fair and impartial jury. Second, Taite argues that juror misconduct occurred when F.G. told the other jurors during deliberations that Taite had previously been convicted of a crime or that she had served a term of imprisonment; she fur.ther argues that this extraneous information resulted in prejudice and requires that her convictions be reversed.

A trial court’s ruling on a motion for a new trial will not be reversed on appeal unless the trial court abused its discretion when it entered the ruling. E.g., Apicella v. State, 809 So.2d 841, 847 (Ala.Crim.App.2000), aff'd, 809 So.2d 865 (Ala.2001); Woodson v. State, 794 So.2d 1226, 1230 (Ala.Crim.App.2000).

Extraneous evidence

Rule 606(b), Ala. R. Evid., provides, in pertinent part:

“[A] juror may not testify in impeachment of the verdict ... as to any matter or statement occurring during the course of the jury’s deliberations or to the effect of anything upon that or any other juror’s mind or emotions as influencing the juror to assent to or dissent from the verdict or indictment or concerning the juror’s mental processes in connection therewith, except that a juror may testify on the question whether extraneous prejudicial information was improperly brought to the jury’s attention or whether any outside influence was improperly brought to bear upon any juror.”

(Emphasis added.)

The trial court stated in its order denying the motion for a new trial that the mention by a juror of Taite’s prior conviction constituted extraneous evidence but that the verdicts were not affected by the jurors’ exposure to that evidence. We agree with the trial court that the juror’s statement during deliberations regarding Taite’s prior conviction or incarceration constituted juror misconduct.

We note, initially, that the trial court’s inquiry into whether extraneous prejudicial information was improperly introduced into the deliberative process was entirely consistent with Rule 606(b), Ala. R.Crim. P. “We are not faced with the general rule which forbids jurors from impeaching their own verdict. This well entrenched rule relates to intrinsic influence and is based on the sound public policy of judicial administration which zealously guards the sanctity of the jury room.” Nichols v. Seaboard Coastline Ry., 341 So.2d 671, 673 (Ala.1976). Taite produced allegations and testimony by way of affidavits that a juror had disclosed during deliberations that Taite previously had been imprisoned; that information was not gained during the trial process. The State did not argue in the trial court that the juror’s statement about Taite’s prior conviction or imprisonment did not constitute extraneous evidence; the State did not argue in the trial court that the jurors’ affidavits should be stricken; and the State did not argue in the trial court that the jurors should not be questioned about whether they heard a juror make the statement about Taite’s prior conviction and about the effect that statement had on their verdicts. To the contrary, the State argued to the trial court at the hearing on the motion for a new trial that the hearing should be continued so that it also had the opportunity to question the jurors about the allegation. The State cited Reynolds v. City of Birmingham, 723 So.2d 822 (Ala.Crim.App.1998), in support of its request for time to interview the jurors. In Reynolds, the defendant had filed a motion for a new trial based on affidavits from jurors who testified that, before the jury began its deliberations, another juror in the case who had visited a scene relevant to the case, had told other jurors about her observations and her opinion in the case based on those observations. The City’s attorneys then obtained affidavits from several jurors to dispute Reynolds’s allegations of juror misconduct. In this case, the State also wanted to question the jurors about the extraneous evidence and its effect, if any, on their verdicts.

The trial court found as a fact, and the State did not dispute in the trial court, that the statement about Taite’s incarceration was extraneous evidence.

In Clarke-Mobile Counties Gas District v. Reeves, 628 So.2d 368 (Ala.1993) (plurality opinion), a case involving allegations that Clarke-Mobile Counties Gas District had buried a gas line on private property without the owner’s permission, one juror told the other members of the jury that “ ‘Clarke-Mobile Counties Gas District had gone across her son’s land and messed it up and did not ask permission.’” 628 So.2d at 370. A plurality of the Supreme Court stated:

“Commonly, statements falling within the ‘extraneous facts’ exception — statements that influence the deliberations and the verdict but do not concern the ‘debates and discussions of the case’ during deliberations — ‘are made to the jury by someone not on the jury.’ [Alabama Power Co. v. Turner, 575 So.2d 551, 557 (Ala.1991)]. This is, however, not always the case. See, e.g., Hallmark v. Allison, 451 So.2d 270 (Ala.1984). Here, although the statement in question came from a juror, it nonetheless fits within the ‘extraneous facts’ exception. The juror stated, inter alia, that after the jury had retired to deliberate, the second juror ‘advised me and the other jurors that Clarke-Mobile Counties Gas District had gone across her son’s land and messed it up and did not ask permission. This statement ... was taken into account by me and influenced my decision in the case.’ R. 91. This testimony clearly relates to an extraneous matter that influenced the deliberations and the verdict in this case.”

628 So.2d at 370 (emphasis added).

The information introduced to the jury here was not based on the juror’s personal experiences as part of the debate and discussion during deliberations. Rather, the information originated outside the scope of the trial and it was — as the State implicitly conceded at trial and as the trial court correctly determined — extraneous information within the scope of the exception provided for in Rule 606(b).

Prejudice

Although we agree with the trial court’s determination that extraneous evidence was introduced to the jury during its deliberations and with the court’s apparent determination that prejudice as a result of the consideration of that evidence was presumed, we disagree with the trial court’s conclusion that the prejudice was somehow overcome by the totality of the evidence.

In Apicella v. State, 809 So.2d 841, 847 (Ala.Crim.App.2000), aff'd, 809 So.2d 865 (Ala.2001), during the guilt phase of a capital-murder trial, Juror S.B. contacted a friend who was an attorney and asked the friend about the law relating to complicity, a legal principle relevant to the case. During a hearing on Apicella’s motion for a new trial, the juror testified that he had not communicated to the other members of the jury the information he had gained during the conversation with his attorney friend, and he testified that the conversation did not affect his interpretation of the law or his vote. The trial court denied Apicella’s motion for a new trial, and this Court affirmed Apicella’s conviction and sentence. Apicella v. State, 809 So.2d 841 (Ala.Crim.App.2000). The Alabama Supreme Court affirmed this Court’s judgment, Ex parte Apicella, 809 So.2d 865 (Ala.2001), and it stated:

“[Juror] S.B. testified that his conversation with T.R.[, the attorney,] lasted approximately 2 1/2 minutes, that T.R. was distracted during the conversation, and that they discussed the law of complicity only in the most general of terms. S.B. further testified that T.R.’s comments did not enter into his thoughts during deliberations and that the trial court’s instructions on the law of complicity were ‘crystal clear.’ There is no question that S.B.’s actions constituted misconduct. At issue is whether this misconduct warrants a new trial.
“Generally, under Alabama law, juror misconduct involving the introduction of extraneous materials warrants a new trial when one of two requirements is met: 1) the jury verdict is shown to have been actually prejudiced by the extraneous material; or 2) the extraneous material is of such a nature as to constitute prejudice as a matter of law. Knight v. State, 710 So.2d 511, 517 (Ala.Crim.App.1997). We conclude that neither of those requirements has been met in this case.
“Apicella argues that when a court is determining whether a juror’s conduct has caused actual prejudice the standard applied is whether the extraneous material ‘might have influenced that juror and others with whom he deliberated,’ Roan v. State, 225 Ala. 428, 435, 143 So. 454, 460 (1932). Apicella relies heavily upon this statement in Roan:
“ ‘The test of vitiating influence is not that it did influence a member of the jury to act without the evidence, but that it might have unlawfully influenced that juror and others with whom he deliberated, and might have unlawfully influenced its verdict rendered.’
225 Ala. at 435, 143 So. at 460.
“On its face, this standard would require nothing more than that the defendant establish that juror misconduct occurred. As Apicella argues, the word ‘might’ encompasses the entire realm of possibility and the court cannot rule out all possible scenarios in which the jury’s verdict might have been affected.
“However, as other Alabama cases establish, more is required of the defendant. In Reed v. State, 547 So.2d 596, 598 (Ala.1989), this Court addressed a similar case of juror misconduct:
“ ‘We begin by noting that no single fact or circumstance will determine whether the verdict rendered in a given case might have been unlawfully influenced by a juror’s [misconduct]. Rather, it is a case’s own peculiar set of circumstances that will decide the issue. In this case, it is undisputed that the juror told none of the other members of the jury of her experiment until after the verdict had been reached. While the question of whether she might have been unlawfully influenced by the experiment still remains, the juror testified at the post-trial hearing on the defendant’s motion for a new trial that her vote had not been affected by the [misconduct].’
“It is clear, then, that the question whether the jury’s decision might have been affected is answered not by a bare showing of juror misconduct, but rather by an examination of the circumstances particular to the case. In this case, as in Reed, the effect of the misconduct was confined to the juror who committed the misconduct. The Reed Court stated:
“ “We cannot agree with the defendant that the verdict rendered might have been unlawfully influenced, where the results of the [misconduct] were known only to the one juror who [committed the misconduct] and that juror remained unaffected by the [misconduct].’
547 So.2d at 598. Because no evidence indicates that S.B. shared the content of his conversation with the other members of the jury and because no evidence indicates that S.B.’s own vote was affected, we cannot say the trial court abused its discretion in finding no actual prejudice.”

809 So.2d at 870-71.

“Extraneous facts introduced in jury deliberations can result in actual prejudice or in prejudice as a matter of law, also called presumed prejudice.” Ex parte Arthur, 835 So.2d 981, 983 (Ala.2002). The Alabama Supreme Court in Ex parte Apicella discussed the differences between presumed prejudice and actual prejudice:

“Apicella also argues that we should hold the extraneous material introduced through S.B.’s conversation with T.R. to be prejudicial as a matter of law. Api-cella supports this argument with the following language from Knight [v. State], 710 So.2d [511,] 517 [ (Ala.Crim.App.1997) ]:
“ ‘ “Juror misconduct will justify a new trial ... when from the extraneous facts prejudice may be presumed as a matter of law.” Whitten v. Allstate Ins. Co., 447 So.2d 655, 658 (Ala.1984).... However, in some cases, “the character and nature of the extraneous material [constitute] prejudice as a matter of law and no showing that the jury was in fact influenced thereby in arriving at their verdict is necessary.” Id. (prejudice presumed as a matter of law from jury’s consulting encyclopedia and dictionary definitions ...).’
“(Quoting Minshew v. State, 594 So.2d 703, 716 (Ala.Crim.App.1991)).
“On the other hand, we have also held that ‘mere exposure to [a] definition does not require a new trial as a matter of law.’ Pearson v. Fomby, 688 So.2d 239, 245 (Ala.1997). Our holding in’ Pearson serves to emphasize the limitations of the doctrine of ‘prejudice as a matter of law.’
“Generally, a presumption of prejudice applies only in a case in which the jury’s consideration of the extraneous material was ‘ “crucial in resolving a key material issue in the case.” ’ Dawson v. State, 710 So.2d 472, 475 (Ala.1997) (citing Hallmark v. Allison, 451 So.2d 270, 271 (Ala.1984), and Ex parte Thomas, 666 So.2d 855 (Ala.1995)).
“We are not willing to presume prejudice as a matter of law in this case. No evidence indicates that extraneous information arising from S.B.’s conversation influenced S.B.’s vote or that the information was ever considered by any other member of the jury. This case is distinguishable from cases such as Nichols v. Seaboard Coastline Railway, 341 So.2d 671 (Ala.1976) (prejudice found as a matter of law where juror brought definitions into the jury room during deliberations and copied them onto a chalkboard). We conclude that the particular circumstances of this case provide no basis for finding prejudice as a matter of law.”

809 So.2d at 871-72.

Guided by the principles discussed in Ex parte Apicella and the cases cited therein, we have examined the specific circumstances of this case, and we find that those circumstances lead necessarily to the conclusion that the jury’s exposure to and consideration of extraneous information resulted in prejudice as a matter of law and in actual prejudice to Taite.

Prejudice as a matter of law

There was no dispute that the juror who knew of Taite’s previous conviction conveyed this extraneous information to the other jurors during their deliberations. The juror’s statement about Taite’s imprisonment was not based on evidence submitted at trial. “It is fundamental to a fair trial that jurors should consider only the evidence presented at trial.” Reynolds v. City of Birmingham, 723 So.2d 822, 824 (Ala.Crim.App.1998). See also Ex parte Troha, 462 So.2d 953, 954 (Ala.1984) (“It is a well settled principle of law, and, further, it is fundamental to a fair trial, that jurors should consider only the evidence presented at trial.”). Information about a defendant’s prior conviction is unquestionably prejudicial, particularly when that information is unverified, is not revealed as properly admitted evidence subject to cross-examination during the trial process, and is unaccompanied by any jury instruction with regard to its limited use.

“[The Alabama Supreme] Court has acknowledged the inherently prejudicial nature of evidence of a defendant’s prior convictions. Cofer v. State, 440 So.2d 1121, 1124 (Ala.1983) (‘[e]vidence of pri- or bad acts of a criminal defendant is presumptively prejudicial to the defendant’). ‘The general exclusionary rule bars the state from introducing evidence of an accused’s prior criminal acts for the sole purpose of proving the propensity of the accused to commit the charged offense.’ Hobbs v. State, 669 So.2d 1030, 1032 (Ala.Crim.App.1995). Thus, evidence of prior convictions is admissible only for limited purposes. ‘The basis for the rule lies in the belief that the prejudicial effect of prior crimes will far outweigh any probative value that might be gained from them. Most agree that such evidence of prior crimes has almost an irreversible impact upon the minds of the jurors.’ Cofer, 440 So.2d at 1123 (quoting Charles W. Gamble, McElroy’s Alabama Evidence § 69.01 (3d ed.1977)). The general exclusionary rule ‘protects the defendant’s right to a fair trial’ by seeking “‘to prevent conviction based on a jury belief that [the] accused is a person of bad character. The jury’s determination of guilt or innocence should be based on evidence relevant to the crime charged.” ’ Cofer, 440 So.2d at 1123 (citation omitted). Thus, it naturally follows that the trial court should take all necessary precautions to ensure that when evidence of a defendant’s prior convictions is admitted into evidence, the jury is properly instructed on the purpose for which it may consider that evidence. This includes instructing the jury, sua sponte, that it may not consider the evidence of prior convictions as substantive evidence that the defendant committed the charged offense.”

Ex parte Minor, 780 So.2d 796, 802 (Ala.2000).

The affidavits submitted by Jurors M.B. and N.F. along with Taite’s motion for a new trial indicated that the jury’s preliminary vote was not unanimous. Therefore, information about Taite’s alleged prior conviction would have suggested that Taite had a propensity to commit illegal acts, which was “ ‘crucial in resolving a key material issue in the case.’ ” Dawson v. State, 710 So.2d 472, 475 (Ala.1997) (citing Hallmark v. Allison, 451 So.2d 270, 271 (Ala.1984), and Ex parte Thomas, 666 So.2d 855 (Ala.1995)). The juror’s statement about Taite’s alleged prior conviction made it more likely that the jury found Taite guilty based on the jury’s belief that she was of bad character and that the prior conviction tended to show her guilt in the case under consideration by the jury. The jury’s exposure to and consideration of this inherently prejudicial and unproven statement is in the limited category of information that results in prejudice as a matter of law. The trial court should have granted the motion for a new trial after it found that extrinsic evidence had been introduced into the deliberation process and that presumed prejudice resulted from the extrinsic evidence. See Hallmark v. Allison, 451 So.2d at 271-72 (“Although we are unable to determine whether the introduction of the extraneous facts did change the decision of the jurors, consideration of the extraneous facts was crucial in resolving a key material issue in the case, and we conclude that the trial court could not reasonably have found that the introduction of the extraneous facts into the jury’s deliberations was not prejudicial.”).

Actual prejudice

Even if the extraneous information had not resulted in prejudice as a matter of law, we would reverse the trial court’s judgment because the extraneous information affected the deliberations and the verdicts and, therefore, resulted in actual prejudice to Taite. As detailed earlier in this opinion, the record contains undisputed evidence in affidavits submitted with Taite’s motion for a new trial and in the testimony at the hearing on the motion for a new trial that the extraneous information affected the votes of at least three jurors.

In Ex parte Lasley, 505 So.2d 1263 (Ala.1987), the Alabama Supreme Court reversed this Court’s judgment affirming Easley’s convictions for first-degree assault; Lasley had been convicted of severely burning two children by allegedly placing or holding them in scalding water. Lasley testified that while bathing the children, he had been distracted by a knock at the door and that when he returned to the bathroom the children were standing in scalding water. After the trial it was discovered that three jurors conducted separate home experiments to test the defense’s theory and that one of the jurors had also consulted a law book. The Alabama Supreme Court stated:

“The integrity of the factfinding process is the heart and soul of our judicial system. Judicial control of the jury’s knowledge of the case is fundamental. Our rules of evidence are designed, so far as humanly possible, to produce the truth and to exclude from the jury those facts and objects which tend to prejudice and confuse. Evidence presented must be subject to cross-examination and rebuttal. The defendant’s constitutional rights of confrontation, of cross-examination, and of counsel are at stake.”

505 So.2d at 1264. The jurors had apparently testified that their verdicts had not been affected by the extraneous information because the Court also stated:

“Considering three separate home experiments and the consultation of law books by one juror, we conclude that the jury might have been influenced, notwithstanding the jurors’ statements to the contrary. The jurors cannot in every case determine the question of whether they were, or might have been, improperly influenced.”

Id.

The testimony in this case, however, establishes that the extraneous information affected the deliberations and the verdicts. Juror S.A. testified that the information affected her vote, and specifically, that she had intended to cast a not-guilty vote until she heard the extraneous information. The affidavit submitted by juror M.B. indicated that she believed that the jurors’s votes were affected by the extraneous information, and she testified at the hearing that “at one time” the information had affected her vote. Thus the record reveals clear proof from the affidavits and from the testimony of S.A. at the hearing on the motions for a new trial that the deliberations and verdicts were influenced by the extraneous information. Unlike the circumstances in Ex parte Apicella, supra, in which the Alabama Supreme Court found that no actual prejudice had resulted from the introduction of extraneous material by a juror, the trial court here had evidence indicating that the extraneous information was shared with other jury members and that consideration of that information affected the jury’s deliberations and its verdicts. The criteria the Alabama Supreme Court set forth for finding actual prejudice were met in this case. Therefore, the trial court could not have reasonably concluded that the consideration of the extraneous information did not result in prejudice to Taite. That the deliberations and the verdicts were affected was undisputed. See Jordan v. Brantley, 589 So.2d 680, 682 (Ala.1991) (“We conclude that the trial court could not have found that the extraneous material was not prejudicial, because there was undisputed evidence that the extraneous material had influenced jurors.”).

In Clarke-Mobile Counties Gas District v. Reeves, supra, one juror told the other members of the jury during deliberations about information she had gained outside of the trial process, and another juror testified by affidavit after the trial, “ ‘This statement ... was taken into account by me and influenced my decision in the case.’ ” 628 So.2d at 370. The plurality in Clarice-Mobile found that the extraneous evidence from a juror warranted reversal of the judgment, and stated:

“Here, although the statement in question came from a juror, it nonetheless fits within the ‘extraneous facts’ exception. The juror stated, inter alia, that after the jury had retired to deliberate, the second juror ‘advised me and the other jurors that Clarke-Mobile Counties Gas District had gone across her son’s land and messed it up and did not ask permission. This statement ... was taken into account by me and influenced my decision in the case.’ R. 91. This testimony clearly relates to an extraneous matter that influenced the deliberations and the verdict in this case. Accordingly, we reverse the judgment and remand this case for a new trial.”

628 So.2d at 370.

As in Clarke-Mobile, there is no dispute in this case that a juror had extraneous information, that the extraneous information was communicated to other jurors, and that that information was considered by other jurors and affected the deliberations and the verdicts. We note that, even though several jurors testified at the post-trial hearing that the extraneous information did not affect their votes, the Alabama Supreme Court has recognized that “[t]he jurors cannot in every case determine the question of whether they were, or might have been, improperly influenced.” Ex parte Lasley, 505 So.2d at 1264. The prejudicial impact of information about a prior conviction would have been virtually impossible to ignore. The clear proof of actual prejudice requires that Taite receive a new trial.

Because we have determined that juror misconduct leading to the jurors’ consideration of extraneous evidence prejudiced Taite, we need not discuss the other allegation of error she raises on appeal. For all the foregoing reasons, we reverse the trial court’s denial of the motion for a new trial and remand the case for proceedings consistent with this opinion.

REVERSED AND REMANDED.

KELLUM, J., concurs. WISE, P.J., and WINDOM, J., concur in the result. MAIN, J., dissents, with opinion.

MAIN, Judge,

dissenting.

I respectfully dissent from the main opinion reversing the trial court’s order denying Towanda Taite’s motion for a new trial.

Initially, I believe that attacking a jury’s verdict with a juror’s comment impermissi-bly leads to public investigation of what was intended to be private deliberation, to the destruction of all frankness and freedom of discussion and conference and that such attacks should be limited. As Justice O’Conner observed, writing for the majority, in Tanner v. United States, 483 U.S. 107, 107 S.Ct. 2739, 97 L.Ed.2d 90 (1987):

“There is little doubt that postverdict investigation into juror misconduct would in some instances lead to the invalidation of verdicts reached after irresponsible or improper juror behavior. It is not at all clear, however, that the jury system could survive such efforts to perfect it. Allegations of juror misconduct, incompetency, or inattentiveness, raised for the first time ... after the verdict, seriously disrupt the finality of the process. Moreover, full and frank discussion in the jury room, jurors’ willingness to return an unpopular verdict, and the community’s trust in a system that relies on the decisions of laypeople would all be undermined by a barrage of postverdict scrutiny of juror conduct.”

483 U.S. at 120-21, 107 S.Ct. 2739 (citations omitted).

In the history of our jurisprudence, jurors have been laypeople who bring their common sense, knowledge, experience, and education to the judicial system. Similarly, in this case, the trial court instructed the jury as follows: “In considering the evidence in this case and reaching your verdict, you have the right to use your knowledge of men and affairs and common sense.” (R. 196.) Likewise, the Alabama Pattern Jury Instructions and caselaw guide that “ ‘ “juries must use common sense, common reason, and common observation as well as a common knowledge of the usual acts of men and women under given circumstances.” ’ ” Ashurst v. State, 462 So.2d 999, 1006 (Ala.Crim.App.1984), quoting German v. State, 429 So.2d 1138, 1143 (Ala.Crim.App.1982), quoting in turn Thompson v. State, 21 Ala.App. 498, 499, 109 So. 557, 557 (1926). Cf. Alabama Pattern Jury Instructions: Civil 1.07 (2d ed.1993) (“You may take into consideration any matter which you would in your everyday affairs, in passing upon the truthfulness ... of the testimony. Weigh the testimony in the light of your common observation and experience....”). See also Harris v. State, 2 So.3d 880, 914 (Ala.Crim.App.2007) (stating that a trial court has broad discretion in formulating its instructions and finding no error where trial court followed accepted pattern jury instruction). The jurors’ mission is to apply the facts of the case as they determine them to the law as given to them by the trial court through the jury instructions. In their deliberations, each juror is encouraged by the trial court to engage in full and frank discussion. In my opinion, allowing a juror to apply his or her community knowledge, everyday experience, and education to this process is to be preserved and protected. There is a distinction between the injection into the deliberative process of the jurors’ community and personal knowledge and juror misconduct. I do not find that the juror’s comment in this case was shown to be impermissible. Moreover, even if juror misconduct did exist, the misconduct does not necessarily warrant a reversal.

“Alabama law has long held that not every instance of juror misconduct warrants reversal. Because a determination of which juror misconduct warrants a new trial is a highly subjective one, each instance must be decided on a case-by-case basis.” Knight v. State, 710 So.2d 511, 515-16 (Ala.Crim.App.1997). Ordinarily, a jury’s verdict will not be upset on the basis of a juror’s post-trial report of events in the course of deliberations; however, the general rule is subject to an exception for extraneous information that might have improperly influenced the verdict, “ ‘when found’ to be prejudicial.’” Knight, 710 So.2d at 516, quoting Reed v. State, 547 So.2d 596, 597 (Ala.1989), citing in turn Bell v. State, 227 Ala. 254, 256, 149 So. 687, 689 (1933).

Rule 606(b), Ala.R.Evid., recognizes the important “distinction, under Alabama law, between ‘extraneous facts,’ the consideration of which by a jury or jurors may be sufficient to impeach a verdict, and the ‘debates and discussions of the jury,’ which are protected from inquiry.” Sharrief v. Gerlach, 798 So.2d 646, 652 (Ala.2001).

Rule 606(b), Ala.R.Evid., provides, in pertinent part:

“Upon an inquiry into the validity of a verdict or indictment, a juror may not testify in impeachment of the verdict or indictment as to any matter or statement occurring during the course of the jury’s deliberations or to the effect of anything upon that or any other juror’s mind or emotions as influencing the juror to assent to or dissent from the verdict or indictment or concerning the juror’s mental processes in connection therewith, except that a juror may testify on the question whether extraneous prejudicial information was improperly brought to the jury’s attention or whether any outside influence was improperly brought to bear upon any juror. Nor may a juror’s affidavit or evidence of any statement by the juror concerning a matter about which the juror would be precluded from testifying be received for these purposes.”

This rule is substantially similar to Rule 606(b), Fed.R.Evid.

In Bethea v. Springhill Memorial Hospital, 833 So.2d 1 (Ala.2002), the Alabama Supreme Court held:

“[I]n order for information to come within the extraneous-information exception to Rule 606(b), the information must come to the jurors from some external authority or through some process outside the scope of the trial, either (1) during the trial or the jury’s deliberations or (2) before the trial but for the purpose of influencing the particular trial.”

833 So.2d at 8. The Court further noted that such information is typically limited “ ‘ “to the visitation of a crime scene by a juror, the introduction of the definition of legal terms in the jury room, and the reading of concepts from general reference books.” ’ ” Bethea, 833 So.2d at 7, quoting Lance, Inc. v. Ramanauskas, 731 So.2d 1204, 1214 (Ala.1999).

Upon a showing that complained-of material comes within the extraneous-information exception, a party must show prejudice resulting from the juror misconduct.

“[Jjuror misconduct involving the introduction of extraneous materials warrants a new trial when one of two requirements is met: 1) the jury verdict is shown to have been actually prejudiced by the extraneous material; or 2) the extraneous material is of such a nature as to constitute prejudice as a matter of law.”

Ex parte Apicella, 809 So.2d 865, 870 (Ala.2001) (citing Knight v. State, 710 So.2d at 517) (verdict upheld where juror had discussion about law of complicity with an attorney he knew, but did not reveal the conversation to other jurors).

“As a general rule, ‘[wjhere extraneous material [is] introduced into the jury’s deliberations, ... actual prejudice [must] be shown to work a reversal of the verdict.’ Nichols v. Seaboard Coastline Ry., 341 So.2d 671, 672 (Ala.1976). However, in some cases, ‘the character and nature of the extraneous material ... constitutes prejudice as a matter of law and no showing that the jury was in fact influenced thereby in arriving at their verdict is necessary.’ Id. (prejudice presumed as a matter of law from jury’s consulting encyclopedia and dictionary definitions of ‘negligence,’ ‘contributory negligence,’ ‘subsequent negligence,’ and ‘subsequent contributory negligence’).”

Minshew v. State, 594 So.2d 708, 716 (Ala.Crim.App.1991). See also Ex parte Arthur, 885 So.2d 981, 983 (Ala.2002) (“Extraneous facts introduced in jury deliberations can result in actual prejudice or in prejudice as a matter of law, also called presumed prejudice.”).

It is well settled that a ruling on a motion for a new trial rests within the sound discretion of the trial court. E.g., Bethea, supra. “ ‘The ruling of the trial judge denying the motion for new trial will not be disturbed in the absence of a showing of abuse of discretion, and this Court will indulge every presumption in favor of the correctness of his ruling.’ ” Reynolds v. City of Birmingham, 723 So.2d 822, 824 (Ala.Crim.App.1998), quoting Hall v. State, 348 So.2d 870, 875 (Ala.Crim.App.1977). “At a hearing on a motion for a new trial, the defendant has the burden of proving the allegations of his motion to the satisfaction of the trial court.” Miles v. State, 624 So.2d 700, 703 (Ala.Crim.App.1993) (citing Anderson v. State, 46 Ala.App. 546, 547, 245 So.2d 832, 833 (1971), and Jones v. State, 31 Ala.App. 504, 507, 19 So.2d 81, 84 (1944)). We will not reverse the trial court’s finding of “no prejudice” if the trial court properly investigates the alleged misconduct and its finding is in accord with competent evidence. Baker v. State, 574 So.2d 1018, 1019 (Ala.Crim.App.1990). See Reed v. State, 547 So.2d at 597. “Once the trial court investigates the misconduct and finds, based on competent evidence, the alleged prejudice to be lacking, this Court will not reverse.” Reed, 547 So.2d at 597 (citing Bascom v. State, 344 So.2d 218, 222 (Ala.Crim.App.1977)). See Dawson v. State, 710 So.2d 472, 475 (Ala.1997); Knight, 710 So.2d at 517. Thus, a defendant seeking a new trial on the basis of juror misconduct has the burden of proving that a juror or jurors did in fact commit the alleged misconduct and that the defendant was prejudiced by that misconduct.

Limited to the facts of this case, I believe it cannot be held that the trial court abused its discretion in denying the motion for a new trial. In this case, the overwhelming majority of the jurors who testified or submitted affidavits indicated that the comment from a fellow juror during deliberations that Taite had a prior conviction did not impact their vote in any way. As for the three jurors relied upon by the main opinion to reverse the trial court’s order, only Juror S.A. indicated at the hearing that the comment had an impact on her verdict; however, in her affidavit, S.A. stated that the foreman had indicated that they had to return identical verdicts for both defendants, i.e., that it could not convict one and acquit the other. Thus, I believe that the trial court properly exercised its discretion to resolve credibility choices and found that these jurors’ ver-diet was impacted by factors other than the comment, and thus that there was no prejudice. I do not believe that the record before this Court or the arguments advanced by Taite support the conclusion that the trial court abused its considerable discretion in resolving those choices adversely to the appellant. There is simply not sufficient evidence to support the conclusion in the main opinion that there was prejudice on the part of the jurors in reaching their verdict. Therefore, I do not think the trial court committed error by denying the motion for a new trial. I would affirm. Therefore, I must dissent.

      . Ross has filed a separate appeal from her convictions and sentences. Appeal no. CR-07-2244. As of the time of the release of this opinion, Ross's appeal is still pending.

      . In his dissenting opinion, Judge Main states that the juror’s comment about Taite’s conviction was not improper, and that jurors should be permitted to apply their “community knowledge” during the deliberative process. Jurors are permitted to rely on their "common knowledge,” which is defined as “[a] fact that is so widely known that a court may accept it as true without proof,” Black’s Law Dictionary 293 (8th ed.2004). The term "community knowledge,” however, is undefined in the dictionary or in Judge Main’s dissent. To the extent a “community’s knowledge” might include gossip and hearsay, that can never be the permissible basis for a jury’s decision.

      . I recognize that this list is not all-inclusive.