text:
    Juan A. PAYNE v. Pamela C. PAYNE.
    2080670.
    Court of Civil Appeals of Alabama.
    March 12, 2010.
    Rehearing Denied May 7, 2010.

      Thomas H. Nolan, Jr., of Wright, Green, P.C., Mobile, for appellant.
    Marcus E. McDowell of Wilkins, Bank-ester, Biles & Wynne, Bay Minette, for appellee.
   MOORE, Judge.

Juan A. Payne (“the husband”) appeals from a judgment entered by the Baldwin Circuit Court (“the trial court”) divorcing him from Pamela C. Payne (“the wife”). We reverse.

Procedural History

On September 7, 2007, the wife filed a complaint for a divorce. On September 26, 2007, the husband answered the complaint and counterclaimed for a divorce. The wife answered the counterclaim on October 2, 2007. After a trial, the trial court entered a divorce judgment on August 25, 2008, that provided, in pertinent part:

“While it would be the [wife’s] burden to prove the value of the amount of retirement accrued prior to the parties’ marriage, the Court finds that it is the [husband’s] burden to prove he actually accrued retirement prior to the marriage. The court does not find that the [husband] met this burden. Therefore, the [wife] is awarded one-half of the [husband’s] retirement account (TSP) as of the date the [wife] filed for divorce, September 7, 2007. The [wife] is not awarded any of the pension as there was insufficient testimony to establish what amount the [husband] will receive at the time he retires and what portion of that amount would be attributable to the time of the marriage.”

Both parties timely moved to alter, amend, or vacate the trial court’s judgment. On December 2, 2008, the trial court entered an amended judgment, which provided, in pertinent part:

“3. Upon the Court’s reconsideration of the evidence presented at trial, ... [the wife’s] Motion to Alter, Amend or Vacate filed 9/22/2008 is hereby granted in part, to-wit:
“a. The [wife] shall be awarded one-half of the [husband’s] pension account that accrued during the marriage. The same shall be calculated as follows: upon the [husband] beginning to receive the same, the [husband’s] gross monthly annuity under the Civil Sendee Retirement System shall be multiplied by a fraction wherein the numerator is the number of months the parties were married (276) and the denominator is the total number of months that the [husband] worked in service to the United States Government during which said pension accrued. [The wife] shall be awarded one-half of this product. The United States Office of Personnel Management is directed to pay the [wife’s] share directly to her....
“b. In the event the [husband] takes a lump sum refund, or distribution of employee contributions, [the wife] shall be entitled to a lump sum payment of ½ of the value of these benefits as of the date of this Order, plus any accrued interest. Earnings will be paid on the amount of the entitlement under this ORDER until payment is made.
“e. Pursuant to Section 834(h)(1) of Title 5, United States Code, [the wife] is awarded a former spouse survivor annuity under the Civil Service Retirement System equal to 100% of the maximum possible survivor annuity.”

On December 29, 2008, the husband filed a second motion to alter, amend, or vacate, making arguments with regard to the initial judgment and the amended judgment. Although the trial court purported to enter an order on the husband’s second post-judgment motion on March 81, 2009, that order was a nullity because the motion had been denied by operation of law, pursuant to Rule 59.1, Ala. R. Civ. P., on March 30, 2009. See Moragne v. Moragne, 888 So.2d 1280, 1282 (Ala.Civ.App.2004). The husband appealed on April 28, 2009.

Discussion

On appeal, the husband argues that the trial court erred in awarding the wife a portion of his Civil Service Retirement System benefits (“the retirement benefits”). Specifically, the husband argues that the trial court had no authority to make such an award because, he says, the wife failed to prove the amount of benefits that were accumulated during the parties’ marriage. We agree.

Section 30-2-51 (b), Ala.Code 1975, provides:

“The judge, at his or her discretion, may include in the estate of either spouse the present value of any future or current retirement benefits, that a spouse may have a vested interest in or may be receiving on the date the action for divorce is filed, provided that the following conditions are met:
“(1) The parties have been married for a period of 10 years during which the retirement was being accumulated.
“(2) The court shall not include in the estate the value of any. retirement benefits acquired prior to the marriage including any interest or appreciation of the benefits.
“(3) The total amount of the retirement benefits payable to the non-covered spouse shall not exceed 50 percent of the retirement benefits that may be considered by the court.”

“In cases in which the spouse seeking the award of benefits has not proven the amount of retirement benefits accrued during the marriage, we have held that that failure of proof prevents a trial court from exercising its discretion to award retirement benefits under the statute.” Ford v. Ford, 3 So.3d 872, 874 (Ala.Civ.App.2008). For example, in Dunn v. Dunn, 891 So.2d 891 (Ala.Civ.App.2004), the husband in that case appealed arguing that the trial court had erred in awarding the wife in that case a portion of his retirement benefits because the wife had failed to prove the amount of retirement benefits that had accrued during the marriage. 891 So.2d at 895. This court “reverse[d] the trial court’s award of retirement benefits to the wife and remand[ed] the cause with instructions that the trial court not award the wife any portion of the husband’s retirement benefits and that it reconsider the division of the parties’ marital assets in light of the removal of the husband’s retirement benefits from consideration.” Id. See also Sumerlin v. Sumerlin, 964 So.2d 47, 50 (Ala.Civ.App.2007) (“Without any evidence indicating that a portion of the moneys in the husband’s IRA [individual retirement account] was divisible under § 30 — 2—51(b)(2), [Ala.Code 1975,] the trial court could not properly award any of the funds in the IRA to the wife.”). Contrary to the trial court’s conclusion of law that it was the husband’s “burden to prove he actually accrued retirement prior to the marriage,” the foregoing cases hold that the spouse seeking an award of retirement benefits bears the burden of proving the amount of retirement benefits that were accumulated during the marriage.

“The term ‘burden of proof has been defined as:

“ ‘... [T]he duty of establishing the truth of a given proposition or issue by such an amount of evidence as the law demands in the case in which the issues arise. It is sometimes also said to mean the duty of producing evidence at the beginning or at any subsequent stage of the trial in order to make or meet a prima facie case. In some of our cases this is referred to as the burden or duty to go forward with the evidence....’”

Smith v. Civil Serv. Bd. of Florence, 52 Ala.App. 44, 48-49, 289 So.2d 614, 617 (1974) (quoting King v. Aird, 251 Ala. 613, 618, 38 So.2d 883, 888 (1949)). In all civil actions, when a party bears the burden of proof, that party must present substantial evidence of the elements necessary to sustain his or her case in order to receive a judgment in his or her favor. Ala.Code 1975, § 12-21-12(a). “[Substantial evidence is evidence of such weight and quality that fair-minded persons in the exercise of impartial judgment can reasonably infer the existence of the fact sought to be proved.” West v. Founders Life Assur. Co. of Florida, 547 So.2d 870, 871 (Ala.1989).

In this case, the wife did not present substantial evidence as to when the husband began accumulating retirement benefits. In her testimony, she initially stated that the husband had not accumulated any retirement benefits before the parties’ marriage. Later, however, she corrected herself to indicate that, in fact, she did not know whether the husband had begun accumulating retirement benefits while he was working as a “co-op” student before the parties married. That testimony, equivocal at best and, at worst, exhibiting a complete lack of personal knowledge on the subject, does not amount to substantial evidence as defined above. Thus, the wife failed to sustain her burden of proving the amount of the husband’s retirement benefits that were accumulated only during the marital period, which was part of the pri-ma facie case that the wife was required to prove in order to establish her right to a portion of those retirement benefits.

Because the wife did not establish her prima facie case, the burden never shifted to the husband to produce any evidence to refute or to overcome that prima facie case. See Birmingham Trust & Savings Co. v. Acacia Mut. Life Ass’n, 221 Ala. 561, 130 So. 327 (1930) (explaining that burden of going forward with evidence to rebut plaintiffs case arises when plaintiff has presented a prima facie case). The husband nevertheless testified that he began accumulating retirement benefits before his marriage to the wife while he was working as a “co-op” student. The trial court disbelieved that testimony. However, it was the wife who bore the burden of proof on the issue.

“[T]he burden of proof meaning the obligation to establish the truth of a given proposition or issue rests throughout the trial upon the party asserting the affirmative of the issue and unless he [or she] meets this obligation upon the whole case, he [or she] fails.”

King, 251 Ala. at 618, 38 So.2d at 888.

Moreover, the fact that the trial court did not credit the testimony of the husband did not establish that, in fact, the wife had proved that the husband had accumulated all his retirement benefits during the parties’ marriage. In Williams v. State of Alabama, 46 So.8d 3 (Ala.Civ.App.2010), a civil-forfeiture case, this court stated:

“Trooper Kelly admitted that there was no evidence to connect the cash with the sale of drugs. In its judgment, the trial court noted that, although Williams had stated that he had obtained the currency from an insurance payment, he had not offered any evidence to prove his assertion. However, the burden was not on Williams to prove where he obtained the money; the burden was on the State to prove that the money was used, or intended for use, in a transaction which would be a violation of the Alabama Controlled Substances Act.”

46 So.3d at 6. As Williams indicates, when the party with the burden of proof fails to meet its burden, the fact that the trial court assigns no weight to the other party’s testimony does not excuse the initial failure of proof. See Ex parte Williams, 780 So.2d 673, 675 (Ala.2000) (“[Djoubts about the defendant’s credibility cannot satisfy the burden that is, by law, on the State to prove that the confession was voluntary.”). Assigning no weight to the testimony of the husband whatsoever, we are left with the testimony of the wife that she did not know whether the husband had accumulated retirement benefits before the parties’ marriage.

The ore tenus standard of review requires this court to presume that a trial court’s findings of fact based on conflicting oral testimony are correct. See Cauthen v. Yates, 716 So.2d 1256, 1259 (Ala.Civ.App.1998). As outlined above, we perceive no conflict in the testimony, so the ore tenus rule should not apply. In Ex parte Anonymous, 803 So.2d 542 (Ala.2001), the supreme court held in a judicial-bypass case, in which the only evidence consisted of the uncontradicted testimony of a minor seeking judicial permission to undergo an abortion without informing her parents, that the ore tenus rule still applies. The court noted that, in such cases, the minor bears the burden of proving that she is mature and well-informed enough to make the abortion decision and that, in reaching a determination on those points, the trial court may be influenced by more than the spoken words of the minor. Anonymous teaches that a reviewing court must presume that the nonverbal evidence before the trial court supports the trial court’s finding that a party did not meet its burden of proof. That principle is inapplicable to this case, in which the trial court determined that the wife did not have the burden of proof and in which the trial court excused the wife from presenting a prima facie case based on the court’s factual conclusion that the husband had testified untruthfully. Thus, regardless of whether the ore tenus rule applies, the result is the same — the trial court simply did not have sufficient evidence before it to sustain its award of retirement benefits to the wife.

The husband also argues that the trial court’s division of property and its award of alimony were in error. In Sumerlin, this court stated:

“The division of property and the award of alimony are interrelated, and appellate courts review the entire judgment in determining whether the trial court abused its discretion as to either issue. See O’Neal v. O’Neal, 678 So.2d 161, 164 (Ala.Civ.App.1996). ‘A court has no fixed standard to follow in awarding alimony or in dividing marital property[; r]ather the award or division need only be equitable and be supported by the particular facts of the case.’ Ex parte Elliott, 782 So;2d 308, 311 (Ala.2000). Because we review the award of alimony and the division of marital property together to determine whether the trial court abused its discretion, and because we are reversing the trial court’s judgment insofar as it awards the wife a portion of ... the husband’s [retirement benefits], we must also reverse the trial court’s judgment as to the property division and alimony award in its entirety. Upon remand, the trial court may adjust those awards so as to create an equitable property division between the parties.”

964 So.2d at 50. Just as we did in Sumerlin, supra, and Dunn, supra, we reverse the trial court’s judgment in this case as to the property division and alimony award. Upon remand, the trial court “may adjust those awards so as to create an equitable property division between the parties” without considering the husband’s retirement benefits as an asset subject to division. Sumerlin, 964 So.2d at 50.

REVERSED AND REMANDED WITH INSTRUCTIONS.

BRYAN, and THOMAS, JJ., concur.

THOMPSON, P.J., dissents, with writing, which PITTMAN, J., joins.

THOMPSON, Presiding Judge,

dissenting.

I respectfully dissent from the main opinion’s reversal of the award of retirement benefits to the wife based on its conclusion that there is no evidence supporting a determination of the amount of benefits accrued during the parties’ marriage. The evidence supports the conclusion that husband started working as a college student for the United States Corps of Engineers (“the Corps”) before the parties’ marriage. He worked, at that time, on a rotating quarter basis as part of a “co-op” program. During the parties’ marriage, the husband became employed by the Corps as a full-time employee and accumulated retirement benefits. The husband indicated that he was still employed by the Corps at the time of the underlying proceedings. There is no evidence indicating that the husband worked for any other employer during the marriage.

The husband testified that he had accumulated retirement benefits during the time he had worked as a “co-op” student employed by the Corps. The trial court found the husband’s testimony on this issue not to be credible. Therefore, the evidence the trial court did find to be credible indicates that the husband’s retirement benefits were accumulated entirely during the marriage.

It is well settled that “[t]he trial court is in the best position to observe the demean- or of witnesses and to assess their credibility.” Yellow Freight Sys., Inc. v. Green, 612 So.2d 1209, 1211 (Ala.Civ.App.1992); see also Ex parte Anonymous, 812 So.2d 1234 (Ala.2001); Justice v. Arab Lumber & Supply, Inc., 533 So.2d 538, 543-44 (Ala.1988); and Petrey v. Petrey, 989 So.2d 1128, 1134 (Ala.Civ.App.2008).

I conclude that in this case the trial court properly exercised its discretion in determining whether retirement benefits had accrued before the parties’ marriage. I disagree with the main opinion’s conclusion that, in the context of a divorce or other civil action, a trial court must accept as fact testimony it determines to be unbelievable simply because there is no evidence in opposition to that testimony. In a case often relied on by this court, our supreme court held that undisputed testimony may be disregarded by the trial court when the testimony is not found to be credible. Hall v. Mazzone, 486 So.2d 408 (Ala.1986).

Specifically, our supreme court stated:

“In this case, the trial court took evidence on the issue of the last residence of Robert Hines Hall that was presented both orally and by deposition. The problem is that only one witness, Mary Florence Hall, testified orally before the trial court on this issue. Her testimony was that her father lived at the Pace place at the time of his death, an assertion contrary to the trial court’s finding. Defendants argue that the ore tenus rule should not apply where the trial court’s finding is contrary to all of the oral testimony. We do not agree.
“The ore tenus rule is grounded upon the principle that when the trial court hears oral testimony it has an opportunity to evaluate the demeanor and credibility of witnesses. In this case, the trial court observed one witness testify concerning this issue and made a determination of credibility. The fact that this determination was negative does not entitle us to ignore it. The fact remains that the trial court, having heard the testimony of one witness, is in a better position to resolve conflicting evidence than are we who must rely solely on written documents. Therefore, we accord the trial court’s finding a presumption of accuracy, and we examine the record only to determine if that finding was clearly erroneous.”

Hall v. Mazzone, 486 So.2d at 410-11(some emphasis in original; some emphasis added).

Given the presumption of correctness in favor of the trial court’s perception of the evidence, see Hall v. Mazzone, supra, and Petrey v. Petrey, supra, I must disagree with the main opinion’s conclusion that the trial court erred in determining that the husband had accumulated no retirement benefits before the parties’ marriage. Accordingly, I respectfully dissent.

PITTMAN, J., concurs.

      . Rule 59.1 provides that a postjudgment motion that is not ruled on by the court within 90 days is deemed denied at the expiration of the 90-day period. The 90th day following the husband’s filing of his postjudgment motion on December 29, 2008, was Sunday, March 29, 2009. Therefore the husband's postjudgment motion was deemed denied on Monday, March 30, 2009. See First Alabama Bank v. McGowan, 758 So.2d 1116 (Ala.Civ.App.2000), and Richburg v. Cromwell, 428 So.2d 621 (Ala.1983).

      . Because we are reversing the judgment to the extent that it awarded the wife a portion of the husband’s retirement benefits, we need not address the husband’s remaining arguments on this issue.

      . Specifically, in its postjudgment order, the trial court stated:
      "The Court heard contradictory evidence regarding the [husband's] acquiring retirement prior to the marriage, and does not find [the husband's ] testimony that he earned retirement when he worked as a co-op student — one quarter on/one quarter off— during college to be credible in this regard."

      (Emphasis added.)


source: Caselaw Access Project

author: PITTMAN, Judge.

license: Public Domain

text:
    Barry L. GRANTHAM v. Lurey Jeffery BYNUM.
    2080624.
    Court of Civil Appeals of Alabama.
    April 2, 2010.
    Rehearing Denied May 21, 2010.

      Carl E. Chamblee, Sr., Warrior, for appellant.
    Kenneth P. Robertson of Robertson & Associates, P.C., Gadsden, for appellee.
   PITTMAN, Judge.

In this appeal, transferred to this court by the Alabama Supreme Court pursuant to Ala.Code 1975, § 12-2-7(6), Barry L. Grantham appeals from a summary judgment entered by the Etowah Circuit Court on his malicious-prosecution claim against Lurey Jeffery Bynum. We reverse and remand.

Grantham sued Bynum in February 2008, alleging in the complaint that Bynum had caused Grantham to be arrested under a warrant issued by a municipal magistrate on a charge of harassment that was subsequently found not to be valid; Grant-ham sought both compensatory and punitive damages. Subsequent amendments to the complaint asserted claims of false imprisonment against Bynum; however, those claims were dismissed by the trial court on Bynum’s motion, leaving only the malicious-prosecution claim in the case. In January 2009, Bynum moved for a summary judgment, filing in support a brief and a copy of the transcript of the deposition of the pertinent municipal magistrate. Grantham filed a response in opposition to the motion, filing in support a brief, affidavits given by Grantham and his wife, and copies of an incident report and of the case-action-summary sheet from the harassment proceeding that had taken place in municipal court. Bynum moved to strike the affidavits, contending that they contained hearsay. After a hearing, the trial court entered a summary judgment in favor of Bynum, thereby adjudicating all claims as to all parties; the trial court denied Bynum’s motion to strike as moot. Grantham then filed a timely notice of appeal.

Our standard of review of summary judgments is well settled:

“A motion for summary judgment tests the sufficiency of the evidence. Such a motion is to be granted when the trial court determines that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law. The moving party bears the burden of negating the existence of a genuine issue of material fact. Furthermore, when a motion for summary judgment is made and supported as provided in Rule 56, [Ala. R. Civ. P.,] the nonmovant may not rest upon mere allegations or denials of his pleadings, but must set forth specific facts showing that there is a genuine issue for trial. Proof by substantial evidence is required.”

Sizemore v. Ovmer-Operator Indep. Drivers Ass’n, Inc., 671 So.2d 674, 675 (Ala.Civ.App.1995) (citations omitted).

The pertinent facts, viewed in a light most favorable to Grantham as the non-movant, are as follows. Bynum was formerly married to Grantham’s current wife, a union that produced four children before it was judicially dissolved in 2002. In October 2007, Bynum’s former wife married Grantham, although both Grantham and his wife testified that Grantham had been “closely involved” in the lives of the four children for a considerable time before the marriage. Bynum appears not to have suffered Grantham’s presence in the lives of his former wife and his children well; Grantham and his wife testified by affidavit that Bynum had left “spiteful, hateful and mean” telephone messages about Grantham on an answering machine belonging to Grantham’s wife.

On October 27, 2007, Grantham’s wife and the four children from her marriage to Bynum traveled by automobile to a football stadium in Centre to attend a sports event. According to Grantham’s wife, By-num “went out of his way to insult [her] at the stadium” and apparently followed her and the children to a local fast-food restaurant, where he “walked deliberately in front of [her] car,” then “looked in, pointed and smirked at [her].”

After Grantham’s wife had had a chance to discuss with Grantham her and her children’s encounter with Bynum in Cen-tre, Grantham decided to accompany his wife and the children that afternoon to attend additional sports events at the football stadium. While seated in the stands, Grantham and his wife noticed Bynum, who was on the football field, looking in their direction and pointing toward them with a “smirk-like look on his face”; at that time, Bynum was talking with a person who appeared to be a law-enforcement officer. Bynum then began walking towards the seating section where Grantham and his wife were seated, still featuring a “smirk-like look on his face as he neared” them and pointed at them.

As Bynum started to pass by Grantham and his wife, Grantham made a statement to Bynum complaining about the events involving his wife and Bynum that morning and saying something to the effect of “Jeff, we got problems.” Although Bynum later stated in an incident report that Grantham had pointed and pressed a finger on By-num’s chest at that precise point, Grant-ham and his wife both denied in their affidavits in opposition to Bynum’s summary-judgment motion that either man had touched the other during the encounter. Bynum did apparently respond to Grantham by asking what sort of problems existed. After a brief discussion, the substance of which is not apparent from the record, a more heated exchange of words took place. According to Bynum’s subsequent incident report, Grantham had then threatened to “whip his ass” and, upon being told by Bynum that the time and place was not appropriate, had threatened to “get” Bynum in the stadium parking lot. Grantham and his wife, for their part, testified in their affidavits that Bynum had told Grantham to “step outside the gate of this football field and we’ll settle it” before turning and walking back to the football field. Afterwards, a law-enforcement officer approached Grantham to ask some questions; the nature of the questions, and of Grantham’s responses, are not apparent from the record. Grantham, his wife, and the children subsequently left the stadium without further contact with Bynum.

Nine days later, on November 5, 2007, Bynum attempted to make a report of the incident to law-enforcement officials. Although he first sought to make that report to Etowah County authorities, Bynum was escorted to a Centre municipal magistrate by a county law-enforcement officer because the incident had occurred within the territorial boundaries of Centre. The magistrate testified in her deposition as to the pertinent events of that day:

“Q. Okay. And did you take facts from Mr. Bynum as to what happened?
“A. I did.
“Q. Okay. What did Mr. Bynum tell you on that occasion?
“A. He told me there was a peewee football game at the high school and that he was there and a gentleman up in the stands called him to come up to talk to him and then threatened to whip him and then shoved him on the bleachers.
“Q. And as a result of those facts being presented to you as city magistrate for the City of Centre, did you determine that probable cause existed for an arrest warrant to be issued?
“A. I did.
“Q. And what was the charge that you felt—
“A. It was harassment.
“Q. Okay. So you felt as city magistrate for the City of Centre that probable cause existed for an arrest warrant to be issued for harassment against the defendant, Mr. Barry Grantham; is that correct?
“A. That’s correct.
“Q. ... But at the trial of this case Mr. Grantham was found not guilty; is that correct?
“A. That’s comet.”

(Emphasis added.)

In our view, the outcome of this appeal is controlled by our recent decision in Ravenel v. Burnett, 5 So.3d 592 (Ala.Civ.App.2008). Ravenel, like this case, involved a harassment charge stemming from a statement made under oath by a complainant to a municipal magistrate to the effect that the accused person had made a threat against the complainant; the magistrate then made a probable-cause determination based primarily upon the complainant’s report. The charges in Ravenel, as in this case, were resolved in favor of the accused. We noted in Ravenel that the necessary elements of a malicious-prosecution claim included (1) institution of a prior judicial proceeding by the complainant, (2) a lack of probable cause, (3) malice on the complainant’s part, (4) termination of the prior proceeding in favor of the accused, and (5) damage. 5 So.3d at 597. In Ravenel, as here, the complainant sought and obtained a summary judgment on a malicious-prosecution claim and attempted to defend the summary judgment in this court based upon a claimed lack of substantial evidence concerning probable cause and malice; however, we held in Ravenel that evidence adduced by the accused tending to disprove that any threat was ever made that would support a criminal-harassment charge was sufficient to warrant submission of the issues of absence of probable cause and malice to the trier of fact. 5 So.3d at 598-600.

In this case, Bynum seeks to distinguish Ravenel on two claimed grounds. Bynum first asserts that the magistrate in this case obtained facts from both Bynum and a county law-enforcement officer, rather than from the complainant and another lay witness as was the case in Ra-venel. However, our review of the magistrate’s testimony does not indicate that any statement by a law-enforcement officer concerning the facts and circumstances allegedly constituting harassment on the part of Grantham was ever given, although it does support the proposition that By-num was accompanied by such an officer when Bynum came before the magistrate. Moreover, the magistrate herself testified that her probable-cause decision was made “as a result of’ the “facts” given to her by Bynum, i. e., that Grantham had called By-num to the stadium bleachers, had threatened to whip him, and had shoved him. Secondly, although Bynum asserts, without citation to the record, that Grantham and his wife did not dispute the contents of the communication between Grantham and Bynum during the incident, unlike the accused in Ravenel, our review of the affidavits given by Grantham and his wife plainly indicates that they did testify (a) that no physical contact had occurred between Grantham and Bynum during the incident, and (b) that Bynum’s statements that Grantham had pointed and pressed his finger on Bynum’s chest and had threatened to “whip his ass” or to “get” him in the parking lot were untrue. As the Alabama Supreme Court held long ago, when a public official rests a determination to bring charges against an accused upon information furnished by particular complainants, as the magistrate did here, if it is shown by competent evidence that those complainants “only misrepresented the facts in order to induce action, it cannot be said that they did not aid and abet in bringing about the prosecution.” American Sur. Co. v. Pryor, 211 Ala. 114, 117, 99 So. 636, 638 (1924).

We do agree with Bynum that the fact that Grantham was ultimately found not guilty is not determinative of the case; as Ravenel notes, that fact is only one element of a malicious-prosecution claim. However, we cannot agree with Bynum that the making of the general statement “we got problems” — the sole statement made by Grantham during the incident whose utterance the parties do not dispute — is itself indicative of probable cause for instituting a criminal-harassment charge against Grantham, for it does not unequivocally amount to a “threat ... that would cause a reasonable person ... to fear for his or her safety.” Ala.Code 1975, § 13A-ll-8(a)(2) (providing the Criminal Code definition of “harassment”). One could easily imagine a similar statement being made as a preface to opening negotiations designed to settle differences between disputing people. Further, we must disagree with Bynum that Grantham has not adduced substantial evidence of malice; Grantham and his wife testified to facts indicating that Bynum had acted with ill will toward them in the past, and, as we noted in Ravenel, the element of malice for purposes of a malicious-prosecution action may also be inferred by the trier of fact from a lack of probable cause in instituting a criminal proceeding. 5 So.3d at 600.

Based upon the foregoing facts and authorities, we conclude that the trial court erred in entering its summary judgment in favor of Bynum. We reverse that judgment, and we remand the cause for further proceedings.

REVERSED AND REMANDED.

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


author: WINDOM, Judge. WELCH, Judge,

text:
    Shunta Vile SAMS v. STATE of Alabama.
    CR-08-0884.
    Court of Criminal Appeals of Alabama.
    June 26, 2009.
    Thadius William Morgan, Jr., Enterprise, for appellant.
    Troy King, atty. gen., and Jack W. Willis, asst. atty. gen., for appellee.
   WINDOM, Judge.

Shunta Vile Sams appeals the circuit court’s judgment revoking his probation. On September 23, 2008, Sams’s probation officer filed an “Officer’s Report on Delinquent Probationer,” alleging that Sams had violated his probation by committing three new offenses: contributing to the delinquency of a child, first-degree criminal trespass, and third-degree criminal mischief. On December 15, 2008, the circuit court entered an order revoking Sams’s probation. In its order, the circuit court found that Sams had violated the terms of his probation due to his “commission of a new criminal offense, namely, Contributing to the Delinquency, Dependency, or In Need of Supervision of a Child.” (C.R. 9). The circuit court did not find that Sams had violated the terms of his probation by committing first-degree criminal trespass or third-degree criminal mischief as alleged by the probation officer. On January 9, 2009, Sams filed a “Motion for New Trial,” arguing that his probation was revoked based solely on hearsay evidence that the victim was a child. On February 10, 2009, the circuit court denied Sams’s motion.

On appeal, Sams argues that evidence presented at the hearing was insufficient to establish that he committed the offense of contributing to the delinquency, dependency or need of supervision of a child. Specifically, he contends that the only testimony regarding the victim’s age was inadmissible hearsay.

During the probation-revocation hearing, the State presented evidence that Sams was arrested for contributing to the delinquency of a child after Officer Dalton Francis with the Elba Police Department found Sams and D.M.D. (the alleged runaway child) in the bedroom of Jena Wood’s apartment, which Sams and D.M.D. had entered by breaking a bathroom window. In this case, the only evidence establishing that D.M.D. was a child, a necessary element of the offense of contributing to the delinquency of a child, was Officer Francis’s hearsay testimony that D.M.D. was only 16 years old when he found her in the bedroom with Sams. § 12-15-13, Ala.Code 1975, (effective January 1, 2009, this provision as amended appears at § 12-15-111, Ala.Code 1975). Thus, hearsay evidence formed the sole basis for the circuit court’s finding that Sams had violated the terms of his probation by committing the criminal offense of contributing to the delinquency of a child. This court has consistently held that “[wjhile hearsay evidence is admissible in a revocation proceeding it may not serve as the sole basis of the revocation.” Beckham v. State, 872 So.2d 208, 211 (Ala.Crim.App.2003); see also Brazery v. State, 6 So.3d 559, 562 (Ala.Crim.App.2008) (quoting Goodgain v. State, 755 So.2d 591, 592 (Ala.Crim.App.1999)) (“‘It is well settled that hearsay evidence may not form the sole basis for revoking an individual’s probation.’”); Clayton v. State, 669 So.2d 220, 222 (Ala.Crim.App.1995) (same); see also Ratliff v. State, 970 So.2d 939, 941-42 (Fla.Dist.Ct.App.2008) (quoting Johnson v. State, 962 So.2d 394, 396-97 (Fla.Dist.Ct.App.2007) (“ ‘While probation may be revoked based on a combination of hearsay and nonhearsay evidence, when the State seeks to revoke probation based on the commission of new offenses, it must present direct, nonhearsay evidence linking the defendant to the commission of the offense at issue.’ ” Here, the trial court abused its discretion by revoking the appellant’s probation because the State failed to present “non-hearsay evidence establishing the essential elements of the criminal offenses at issue-”)).

Because the State failed to present any nonhearsay evidence to establish that D.M.D. was a “child” when she was found in the bedroom with Sams, the circuit court erred in revoking Sams’s probation. Accordingly, we reverse the circuit court’s December 15, 2008, order revoking Sams’s probation and remand this cause for further consideration consistent with this opinion.

REVERSED AND REMANDED.

WISE, P.J., and KELLUM, J., concur.

WELCH, J., dissents, with opinion.

MAIN, J., dissents.

WELCH, Judge,

dissenting.

The majority reverses the trial court’s judgment revoking Sams’s probation based on a determination that Sams had violated the terms of his probation by committing a new criminal offense — contributing to the delinquency or dependency of a child, or causing a child to be in need of supervision. The majority holds that the trial court erred because the only evidence establishing that the victim, D.M.D., was a minor, a necessary element of the crime of contributing to the delinquency of a minor, was Officer Dalton Francis’s hearsay testimony that D.M.D. was 16 years old when he found her in the bedroom with Sams. The majority concludes that “hearsay evidence formed the sole basis for the circuit court’s finding that Sams had violated the terms of his probation by committing the criminal offense of contributing to the delinquency of a child.” 48 So.3d at 663.

I agree with the majority that a judgment revoking probation cannot be based solely on hearsay. E.g., Brazery v. State, 6 So.3d 559 (Ala.Crim.App.2008); Nash v. State, 931 So.2d 785 (Ala.Crim.App.2005); Goodgain v. State, 755 So.2d 591 (Ala.Crim.App.1999). However, that established rule of law does not apply in this case; therefore, reversal based on that rule is not necessary. Rule 27.6(d)(1), Ala. R.Crim. P., provides that the judge must be reasonably satisfied from the evidence that a violation of the conditions of probation occurred. The rule also states that, in a probation-revocation hearing, “[t]he court may receive any reliable, relevant evidence not legally privileged, including hearsay.” (Emphasis added.) A revocation of probation does not require proof beyond a reasonable doubt, as is required to sustain a criminal conviction, and the use of hearsay evidence to sustain that lower level of proof in a revocation proceeding is clearly anticipated. The reason any evidence — whether direct or hearsay — is presented at a revocation hearing is to assist the trial court in making a determination • about whether it is reasonably satisfied that the alleged probation violation occurred. Clearly, hearsay evidence is permitted as a part of the evidence necessary to make that determination.

In this case, although evidence about D.M.D.’s age was hearsay, the revocation was not based solely on that hearsay. Officer Francis had independent knowledge of the remainder of the elements of the allegations against Sams, and he provided testimony about those elements. For example, Officer Francis testified that D.M.D. was a runaway; that he and other officers had found D.M.D. with Sams in an apartment the night before she ran away; and that on the night she ran away again, Officer Francis returned to the apartment with other officers and found the juvenile in a bedroom with Sams. Sams was wearing only boxer shorts and, according to Officer Francis, it appeared that D.M.D. had just gotten out of bed when the officers entered the room. Officer Francis further testified that he observed that the bathroom window was broken and that broken glass was inside the bathroom.

Although Officer Francis’s testimony that the juvenile was 16 years old was hearsay, direct evidence established that Sams induced, aided, or encouraged the child in her efforts to run away from the custody of her guardian and that, as a result, the child became delinquent, dependent, or in need of supervision; direct evidence established other elements of the crime of contributing to the delinquency of a child. Therefore, the trial court’s revocation was not based solely on hearsay. The majority appears to hold implicitly that each element of the charge underlying a revocation violation must be established by direct evidence and not by hearsay. That result is not mandated by either Rule 27, Ala. R.Crim. P., or by any caselaw.

The trial court’s judgment revoking Sams’s probation was not based solely on hearsay, and it was due to be affirmed. Therefore, I respectfully dissent.

      . At the time of the alleged offense, "child” was defined as "[a]n individual under the age of 18, or under 19 years of age and before the juvenile court for a matter arising before that individual’s 18th birthday.” § 12-15-1(3), Ala.Code 1975. Effective January 1, 2009, the definition of "child” was amended as follows: "An individual under the age of 18 years, or under 21 years of age and before the juvenile court for a delinquency matter arising before that individual’s 18th birthday. Where a delinquency petition alleges that an individual, prior to the individual’s 18th birthday, has committed an offense for which there is no statute of limitation pursuant to Section 15-3-5, the term child also shall include the individual subject to the petition, regardless of the age of the individual at the time of filing.” § 12-15-102(3), Ala.Code 1975.


author: STUART, Justice. COBB, Chief Justice

text:
    Ex parte State of Alabama. (In re Shunta Vile SAMS v. STATE of Alabama).
    1081705.
    Supreme Court of Alabama.
    March 12, 2010.

      Troy King, atty. gen., and Jack W. Willis, asst. atty. gen., for petitioner.
    Thadius W. Morgan, Jr., Enterprise, for respondent.
   STUART, Justice.

In September 2008, a probation-delinquency report was filed charging that Shunta Vile Sams had violated three conditions of his probation. The circuit court then conducted a probation-revocation hearing. After hearing the evidence, the circuit court was reasonably satisfied that the evidence supported a finding that Sams had violated the terms of his probation by committing a new offense — contributing to the delinquency or dependency of a child or a child’s being in need of supervision. § 12-15-13, Ala.Code 1975 (effective January 1, 2009, this provision, as amended, appears at § 12-15-111, Ala. Code 1975). The circuit court revoked Sams’s probation.

The Court of Criminal Appeals reversed the circuit court’s order. Sams v. State, 48 So.3d 662 (Ala.Crim.App.2009). The Court of Criminal Appeals held that the evidence was insufficient to support a finding that Sams had committed the offense of contributing to the delinquency or dependency of a child or to a child’s being in need of supervision because, it said, the finding was based solely on hearsay evidence. Specifically, the Court of Criminal Appeals held that because “the State failed to present any nonhearsay evidence to establish that D.M.D. was a ‘child’ when she was found in the bedroom with Sams,” a “necessary” element to establish a prima facie case of contributing to the delinquency or dependency of a child or to a child’s being in need of supervision, “the circuit court erred in revoking Sams’s probation.” 48 So.3d at 663.

The State petitioned this Court for cer-tiorari review to determine whether the decision of the Court of Criminal Appeals conflicts with well settled caselaw holding that a circuit court may consider both hearsay and nonhearsay evidence in determining whether a probationer violated the terms of his or her probation. See Ex parte J.J.D.,778 So.2d 240, 242 (Ala.2000)(recognizing that “ ‘ “the court is not bound by the strict rules of evidence” ’ ” at a probation-revocation hearing and must only be reasonably satisfied from the evidence that the probationer has violated a condition of his or her probation (quoting Martin v. State, 46 Ala.App. 810, 312, 241 So.2d 839, 341 (Ala.Crim.App.1970), quoting in turn State v. Duncan, 270 N.C. 241, 245, 154 S.E.2d 53, 57 (1967))); Ex parte Toney, 854 So.2d 37, 39 (Ala.2002) (stating that “Rule 27.6(d)(1), [Ala. R.Crim. P.,] provides, in pertinent part, that at a probation-revocation hearing ‘[t]he court may[, in its discretion,] receive any reliable, relevant evidence not legally privileged, including hearsay,’ ” but noting that the decision to revoke probation, however, cannot be based solely on hearsay evidence). We issued the writ; we reverse and remand.

The facts are undisputed. Officer Dalton Francis, Jr., of the Elba Police Department testified at the probation-revocation hearing that a report had been made that D.M.D., a juvenile, had run away from home. He stated that he found D.M.D. with Sams at a Shell gasoline service station, that he notified the juvenile-probation officer, and that he was instructed to release D.M.D. to her grandmother, which he did. The next night, another report was filed indicating that D.M.D. had again run away and that the juvenile-probation officer was trying to locate her. He stated that he and another officer found D.M.D. with Sams in the bedroom of an apartment. Officer Francis stated that D.M.D. told him that she was 16 years old; that she had been living with Sams; that she smoked crack cocaine and marijuana; that she consumed alcohol; and that, at that time, she may have been pregnant by Sams. Officer Francis testified that Sams was arrested for contributing to the delinquency or dependency of a child or to a child’s being in need of supervision.

The State contends that the Court of Criminal Appeals erred in reversing the circuit court’s order revoking Sams’s probation because, it says, it presented sufficient evidence from which the circuit court could be reasonably satisfied that Sams had violated a condition of his probation by committing a new offense.

“ ‘ “Probation or suspension of sentence comes as an act of grace to one convicted of, or pleading guilty to, a crime. A proceeding to revoke probation is not a criminal prosecution, and we have no statute requiring a formal trial. Upon a hearing of this character, the court is not bound by strict rules of evidence, and the alleged violation of a valid condition of probation need not be proven beyond a reasonable doubt.” ’
“Martin v. State, 46 Ala.App. 310, 312, 241 So.2d 339, 341 (Ala.Crim.App.1970) (quoting State v. Duncan, 270 N.C. 241, 154 S.E.2d 53 (1967) (citation omitted)). Under that standard, the trial court need ‘only be reasonably satisfied from the evidence that the probationer has violated the conditions of his probation.’ Armstrong v. State, 294 Ala. 100, 103, 312 So.2d 620, 623 (1975). Absent a clear abuse of discretion, a reviewing court will not disturb the trial court’s conclusions. See Moore v. State, 432 So.2d 552, 553 (Ala.Crim.App.1983), and Wright v. State, 349 So.2d 124, 125 (Ala.Crim.App.1977).”

Ex parte J.J.D., 778 So.2d at 242. See Rule 27.6(d)(1), Ala. R.Crim. P. (providing that at a revocation hearing the “court may receive any reliable, relevant evidence not legally privileged, including hearsay,” and the court must be reasonably satisfied from the evidence that a violation of probation occurred before revoking probation). Whether to admit hearsay evidence at a probation-revocation hearing is within the discretion of the court. Puckett v. State, 680 So.2d 980, 981 (Ala.Crim.App.1996). However,

“[i]t is well settled that hearsay evidence may not form the sole basis for revoking an individual’s probation. See Clayton v. State, 669 So.2d 220, 222 (Ala.Cr.App.1995); Chasteen v. State, 652 So.2d 319, 320 (Ala.Cr.App.1994); and Mallette v. State, 572 So.2d 1316, 1317 (Ala.Cr.App.1990). ‘The use of hearsay as the sole means of proving a violation of a condition of probation denies a probationer the right to confront and to cross-examine the persons originating the information that forms the basis of the revocation.’ Clayton, 669 So.2d at 222.”

Goodgain v. State, 755 So.2d 591, 592 (Ala.Crim.App.1999).

To summarize, at a probation-revocation hearing a circuit court must examine- the facts and circumstances supporting each alleged violation of probation. The court may consider both hearsay and nonhear-say evidence in making its determination. The hearsay evidence, however, must be reliable, and it cannot be the sole evidence supporting the revocation of probation. Thus, a circuit court must assess the credibility of the particular witnesses at the probation-revocation hearing, the reliability of the available evidence, and the totality of the evidence in each individual case to determine whether it is reasonably satisfied that the probationer has violated a term of his or her probation and that revocation is proper. Moreover, an appellate court will disturb a circuit court’s decision only if the record establishes that the circuit court exceeded the scope of its discretion.

In Mitchell v. State, 462 So.2d 740 (Ala.Crim.App.1984), the Court of Criminal Appeals reversed the circuit court’s revocation of Mitchell’s probation based on its finding that Mitchell had committed a new offense because, the Court of Criminal Appeals held, the record did not contain sufficient facts to support revocation. At the revocation hearing, Mitchell’s probation officer testified about information he had received from a witness who had seen Mitchell break into a vehicle. According to the probation officer, Mitchell had been charged with burglary and had “ ‘repeatedly admitted his guilt to arresting officers.’ ” 462 So.2d at 741. The probation officer had no personal knowledge with regard to the incident. Officer Gregory J. Sexton, a Decatur police officer, was the only other witness to testify. He stated that he was on patrol when he learned of the burglary. When he arrived on the scene, two individuals identified Mitchell as one of the men who had broken into the vehicle. Officer Sexton also testified that he was not present when Mitchell made his statement admitting his guilt. In holding that the hearsay evidence given by Mitchell’s probation officer and Officer Sexton was not sufficient to support the revocation of Mitchell’s probation, the Court of Criminal Appeals stated:

“The question for us in the instant case is, therefore, whether the testimony of Officer Sexton, when added to the evidence revealed by the probation officer’s testimony and report, provided sufficient evidence to support Mitchell’s probation revocation. It is not necessary in a probation revocation hearing to provide proof beyond a reasonable doubt or by a preponderance of the evidence. Rather, the lower court need only be ‘reasonably satisfied from the evidence that the probationer has violated the conditions of his probation’. Armstrong v. State, 294 Ala. 100, 312 So.2d 620 (1975).
“This court has held that ‘probation cannot be revoked solely upon hearsay evidence’. Moore v. State, 432 So.2d 552 (Ala.Crim.App.1983); Watkins v. State, 455 So.2d 160 (Ala.Crim.App.1984). The only evidence presented against Mitchell in this hearing was hearsay. Neither the victim, nor any other witness who could have identified the appellant as the perpetrator of the crime, testified. Although [the probation officer] said that his report indicated Mitchell had made an inculpatory statement to police, no other evidence was offered to support this allegation. Officer Sexton was not present when the crime was committed, and he arrested Mitchell solely upon the information given to him by others.
“While it is not necessary that a probationer be convicted of the charged offense before his probation is revoked, it is nevertheless true that the filing of charges or an arrest, standing alone, is insufficient ground for probation revocation. Nicholson v. State, 440 So.2d 1205 (Ala.Crim.App.1983); Free v. State, 392 So.2d 857 (Ala.Crim.App.1980), writ denied, Ex parte Free, 392 So.2d 859, cert. denied, 451 U.S. 990, 101 S.Ct. 2329, 68 L.Ed.2d 850 rehearing denied, 452 U.S. 973, 101 S.Ct. 3129, 69 L.Ed.2d 985 (1981).
“As this court has said:
‘“If merely being arrested is sufficient for revocation, then revocation would lie within the discretion of police officers, rather than judicial officers. In such a case, judges would only perform the ministerial duty of determining if an arrest had been made and then signing the revocation order. The decision to revoke probation is a judicial function and should be based upon the appellant’s conduct and not upon an accusation only. The State must submit enough substantive evidence to reasonably satisfy the trier of the facts that a condition of probation was breached.’ Hill [v. State, 350 So.2d 716, 718 (Ala.Crim.App.1977) ].”

462 So.2d at 742.

In Goodgain, the Court of Criminal Appeals reversed the circuit court’s revocation of Goodgain’s probation because the only evidence presented supporting a finding that Goodgain had violated a term of his probation by committing a new offense was hearsay. At the probation-revocation hearing, the State presented one witness, Detective Gregory Johnson with the Birmingham Police Department. Detective Johnson testified that he had received an offense report prepared by an unidentified officer regarding a robbery. According to Detective Johnson, the report indicated that the victim had identified Goodgain as one of the men who had robbed her at gunpoint. Detective Johnson said that he conducted a live lineup and that the victim identified Goodgain as one of the men who had robbed her. Detective Johnson also testified that the victim’s daughter, who was present during the robbery, identified Goodgain in a photographic lineup. No other evidence was offered to support a finding that Goodgain had committed a new offense.

The Court of Criminal Appeals’ review of the record indicated that Detective Johnson’s hearsay testimony about the statements of the victim contained in the offense report and his hearsay testimony regarding the victim and her daughter’s identification of Goodgain in the lineups could not support a finding that Goodgain had committed a new offense. Therefore, the Court of Criminal Appeals correctly concluded that the circuit court had exceeded the scope of its discretion in revoking Goodgain’s probation.

In both Mitchell and Goodgain the State presented only hearsay evidence to support a finding that the probationer had violated the conditions of his probation by committing a new offense. The State did not present a witness with personal knowledge of the charged offense who could identify the probationer as the perpetrator of the new offense. Indeed, the officers who testified at the probation-revocation hearings in those cases were not present when the new offenses were committed and the arrests were not based on either officer’s personal knowledge or witnessing of the offense. Consequently, because only hearsay evidence was presented connecting each probationer to the charged offense, the evidence in both cases was insufficient to support the probation revocations, and the circuit court in each case exceeded the scope of its discretion in revoking the probations.

In this case, the record establishes that the circuit court did not exceed the scope of its discretion in revoking Sams’s probation. Hearsay evidence was not the sole basis on which the circuit court found that Sams had violated the terms of his probation by committing a new offense. The State presented a mixture of nonhearsay and hearsay evidence indicating that Sams contributed to the delinquency or dependency of a child or to a child’s being in need of supervision. Officer Francis testified as to his personal knowledge of Sams’s commission of the new offense. Officer Francis testified that on the night before Sams was arrested for contributing to the delinquency or dependency of a child or to the child’s being in need of supervision, he had found Sams with D.M.D., a minor, and had returned D.M.D. to her grandmother. He further testified that he saw Sams with D.M.D. in the bedroom of the apartment on the night Sams was arrested for contributing to the delinquency or dependency of a child or to a child’s being in need of supervision and witnessed his arrest. Officer Francis’s testimony unequivocally linked Sams to the new offense. Although hearsay evidence was presented to establish that D.M.D. was 16 years old, the circuit court could have determined that the hearsay evidence was reliable in light of Officer Francis’s personal knowledge of this incident and his prior incident involving Sams and D.M.D. Consequently, in this case, unlike Mitchell and Goodgain in which the State relied solely on hearsay evidence to support a finding that the probationer had committed a new offense, the State presented both reliable hearsay and nonhearsay evidence, as permitted under Rule 27.6(d), Ala. R.Crim. P., to establish that Sams had violated one of the terms of his probation. The record indicates that the State presented sufficient evidence from which the circuit court could be reasonably satisfied that Sams had violated one of the terms of his probation by committing a new offense and that the circuit court did not exceed the scope of its discretion in revoking Sams’s probation. Accordingly, we reverse the judgment of the Court of Criminal Appeals reversing the probation-revocation order, and we remand this case for that court to enter a judgment affirming the circuit court’s revocation of Sams’s probation.

REVERSED AND REMANDED.

LYONS, WOODALL, SMITH, BOLIN, PARKER, MURDOCK, and SHAW, JJ., concur.

COBB, C.J., dissents.

COBB, Chief Justice

(dissenting).

I dissent. The limited analysis of the majority has failed to persuade me that the Court of Criminal Appeals was incorrect in reversing the circuit court’s probation-revocation order. A juvenile court filing showing the age of the female child would not have been difficult to produce.

      . Section 12-15-13, Ala.Code 1975, provided:
      "(a) It shall be unlawful for any parent, guardian or other person to willfully aid, encourage or cause any child to become or remain delinquent, dependent or in need of supervision or by words, acts, threats, commands or persuasions, to induce or endeav- or to induce, aid or encourage any child to do or perform any act or to follow any course of conduct which would cause or manifestly tend to cause such child to become or remain delinquent, dependent or in need of supervision_”
      At the time of the alleged offense, “child” was defined as “[a]n individual under the age of 18, or under 19 years of age and before the juvenile court for a matter arising before that individual’s 18th birthday.” § 12-15-1(3), Ala.Code 1975. Effective January 1, 2009, the definition of "child” was amended to read as follows: “An individual under the age of 18 years, or under 21 years of age and before the juvenile court for a delinquency matter arising before that individual’s 18th birthday. Where a delinquency petition alleges that an individual, prior to the individual’s 18th birthday, has committed an offense for which there is no statute of limitation pursuant to Section 15-3-5, the term child also shall include the individual subject to the petition, regardless of the age of the individual at the time of filing.” § 12-15-102(3), Ala.Code 1975.

      . Cf. Hampton v. State, 203 P.3d 179, 185 (Okla.Crim.App.2009) (“[W]e conclude that the due process confrontation requirement applicable to revocations matters will generally be satisfied when a trial court determines that proffered hearsay bears substantial guarantees of trustworthiness or otherwise has sufficient indicia of reliability.”).