author: SMITH, Justice. LYONS, Justice

text:
    Ex parte Jerome THEODOROU. (In re Jerome Theodorou v. State of Alabama).
    1090393.
    Supreme Court of Alabama.
    June 30, 2010.

      Billy C. Burney II of Burney & Burney, Decatur, for petitioner.
    Troy King, atty. gen., and James B. Prude, asst. atty. gen., for respondent.

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

   SMITH, Justice.

Jerome Theodorou pleaded guilty to third-degree receiving stolen property, see § 13A-8-19, Ala.Code 1975, and was sentenced to 12 months in prison. Following a hearing at which both the State and Theodorou presented evidence, the trial court entered an order requiring Theodo-rou to pay $33,417.94 in restitution. Theo-dorou appealed the restitution order to the Court of Criminal Appeals. See § 15-18-78(a), Ala.Code 1975. The Court of Criminal Appeals affirmed the restitution order in an unpublished memorandum, Theodo-rou v. State, 53 So.3d 150 (Ala.Crim.App. 2009), and this Court granted Theodorou’s petition for a writ of certiorari. We affirm.

Facts and Procedural History

In September 2004, a backhoe was stolen from a construction site in Town Creek. A hydraulic device described as a “hammer attachment” was attached to the backhoe when it was stolen. The backhoe and the hammer attachment belonged to Bussman Construction Company, which was performing work at the construction site. After three days, Bussman Construction was able to obtain a replacement backhoe to continue working at the construction site.

In March 2005, the stolen backhoe and the hammer attachment were recovered from Theodorou’s property. According to Theodorou, he purchased the backhoe and the hammer attachment for $45,000 on January 20, 2005, from an individual named James Cannon. Theodorou testified that he purchased the equipment in Gulf Shores, Alabama, while he was performing hurricane-disaster work following Hurricane Ivan, and that he later transported the equipment to his house in Lawrence County, approximately 10 miles from the construction site where the equipment had been stolen.

Theodorou was indicted on August 12, 2005, for first-degree receiving stolen property. On June 20, 2006, he pleaded guilty to third-degree receiving stolen property and was sentenced to 12 months in jail. The trial court suspended the sentence and placed Theodorou on 12 months’ supervised probation.

On September 14, 2006, the trial court conducted a hearing to determine the amount of restitution Theodorou would be required to pay. Theodorou and David Bussman, the owner of Bussman Construction, testified at that hearing.

According to Bussman, the backhoe and the hammer attachment cost $86,728.86. He purchased the backhoe in May 2004 for $66,112.50; although the record does not indicate when he purchased it, Bussman purchased the hammer attachment for $20,616.36. Bussman had insurance coverage for the backhoe but not for the hammer attachment. Bussman testified that the hammer attachment returned to him had not been stored properly and that it therefore did not have any value and had to be replaced. Bussman Construction received insurance proceeds of $64,500 for the loss of the backhoe, leaving a loss of $22,228.86 ($20,616.36 for the hammer attachment and $1,612.50 for the difference in the cost of the backhoe and the insurance proceeds received for the backhoe).

In addition, Bussman testified that Bussman Construction was unable to operate at the construction site for three days after the theft of the backhoe and the hammer attachment. Bussman estimated that the loss resulting from those three days was $6,616.58. He testified that he calculated that amount by dividing the gross revenue of Bussman Construction for the year by the number of working days in the year, with the resulting number representing the average revenue per working day. Bussman then multiplied that number by three to arrive at $6,616.58.

Bussman also testified that Bussman Construction lost $4,572.50 as a result of the replacement of the backhoe. Bussman calculated that sum by combining the estimated amount of depreciation with certain monthly payments he had made on the backhoe before it was stolen, all of which, according to Bussman, were not covered by the insurance proceeds.

After the restitution hearing, the trial court entered an order requiring Theodo-rou to pay restitution in the amount of $33,417.94. That sum included $20,616.36 for the hammer attachment, $1,612.50 for the difference in the cost of the backhoe and the insurance proceeds paid for the backhoe, $6,616.58 for lost revenue, and $4,572.50 for replacement loss.

Theodorou filed a motion for a new trial, which was denied by operation of law on November 24, 2007. Theodorou appealed the restitution order to the Court of Criminal Appeals. On October 2, 2009, the Court of Criminal Appeals, in an unpublished memorandum, affirmed the trial court’s restitution order. Presiding Judge Wise and Judge Welch dissented, each with opinion.

This Court granted Theodorou’s petition for the writ of certiorari on March 4, 2210.

Discussion

“The right of crime victims to receive restitution is set forth in the Restitution to Victims of Crimes Act, § 15-18-65 et seq., Ala.Code 1975 (‘the Act’).” Roberts v. State, 863 So.2d 1149, 1152 (Ala.Crim.App.2002). Section 15-18-65, Ala. Code 1975, provides as follows:

“The Legislature hereby finds, declares and determines that it is essential to be fair and impartial in the administration of justice, that all perpetrators of criminal activity or conduct be required to fully compensate all victims of such conduct or activity for any pecuniary loss, damage or injury as a direct or indirect result thereof. The provisions of this article shall be construed so as to accomplish this purpose and to promote the same which shall be the public policy of this state.”

As the Court of Criminal Appeals stated in Roberts: “The legislative purpose underlying the Act, as evidenced by the plain language of § 15-18-65, was to fully compensate victims of crime for ‘any pecuniary loss, damage or injur/ suffered as a direct or indirect result of a criminal act.” 863 So.2d at 1153 (citing Butler v. State, 608 So.2d 773 (Ala.Crim.App.1992), and Gladden v. State, 644 So.2d 1267 (Ala.Crim.App.1993)).

In the present case, the trial court’s restitution order quotes the following from that portion of the Act codified at § 15-18-67, Ala.Code 1975:

“When a defendant is convicted of a criminal activity or conduct which has resulted in pecuniary damages or loss to a victim, the court shall hold a hearing to determine the amount or type of restitution due the victim or victims of such defendant’s criminal acts. Such restitution hearings shall be held as a matter of course and in addition to any other sentence which it may impose, the court shall order that the defendant make restitution or otherwise compensate such victim for any pecuniary damages. The defendant, the victim or victims, or their representatives or the administrator of any victim’s estate as well as the district attorney shall have the right to be present and be heard upon the issue of restitution at any such hearings.”

Section 15-18-66(2), Ala.Code 1975, defines “pecuniary damages” as

“[a]ll special damages which a person shall recover against the defendant in a civil action arising out of the facts or events constituting the defendant’s criminal activities; the term shall include, but not be limited to the money or other equivalent of property taken, broken, destroyed, or otherwise used or harmed and losses such as travel, medical, dental or burial expenses and wages including but not limited to wages lost as a result of court appearances.”

Section 15-18-66(4), Ala.Code 1975, defines “victim” as “[a]ny person whom the court determines has suffered a direct or indirect pecuniary damage as a result of the defendant’s criminal activities. ‘Victim’ shall not include any participant in the defendant’s criminal activities.”

Theodorou contends that the Court of Criminal Appeals erred in affirming the trial court’s restitution order. He argues first that the restitution order was based “upon a criminal act for which Theodorou was not convicted or, for that matter, even charged or implicated.” (Theodorou’s brief, p. 6.) He contends that the theft of the property — and not his receipt of the stolen property — proximately caused the damage for which the trial court ordered Theodorou to compensate Bussman Construction. Theodorou contends that the trial court therefore exceeded its discretion in issuing the restitution order.

In Reeves v. State, 24 So.3d 549, 553 (Ala.Crim.App.2009), the Court of Criminal Appeals stated:

“ ‘Before a defendant can be held liable for damages, it must be established that his criminal act was the proximate cause of the injury sustained by the victim.’ Strough v. State, 501 So.2d 488, 491 (Ala.Crim.App.1986). Therefore, under Alabama’s restitution statute, Reeves could be ordered to pay restitution only if one of two conditions existed: (1) his victims suffered any direct or indirect pecuniary losses as a result of the activity for which he has been convicted or, (2) he admitted to other criminal conduct during the proceedings that was the proximate cause of any injuries to the victims. Lamar v. State, 803 So.2d 576 (Ala.Crim.App.2001). The State has the burden of proving that a defendant’s criminal act was the proximate cause of the victim’s injury before a defendant can be held liable for damages. Richardson v. State, 608 So.2d 1132 (Ala.Crim.App.1992).”

Ordinarily, the defendant’s ability to foresee that the victim would suffer damage as a result of the criminal activity determines whether proximate cause exists. In Strough v. State, 501 So.2d 488, 491 (Ala.Crim.App.1986), the Court of Criminal Appeals stated the following regarding foreseeability:

“As our Supreme Court observed in Alabama Power Company v. Taylor, 293 Ala. 484, 306 So.2d 236 (1975), foreseeability is the cornerstone of proximate cause. This does not mean, however, that the defendant must have actually foreseen the particular injury which resulted from his action. Rather, the injury sustained by the victim must have been of such a nature that a reasonable person could have foreseen or anticipated that the injury might occur as a natural consequence of the action. Williams v. Woodman, 424 So.2d 611 (Ala.1982); Prescott v. Martin, 331 So.2d 240 (Ala.1976). Where an injury is caused by intentional conduct, the rules of proximate cause are more liberally applied. Phillips v. Smalley Maintenance Services, Inc., 435 So.2d 705 (Ala.1983).”

(Emphasis added.) Thus, in reviewing the restitution order in the present case, we must determine whether in receiving the stolen property Theodorou should have reasonably foreseen that his criminal conduct would cause Bussman and Bussman Construction to sustain the particular damage for which the trial court ordered restitution. Additionally, we note that the trial court has wide discretion in determining the amount of restitution. Howard v. State, 639 So.2d 555, 556 (Ala.Crim.App.1993) (“ ‘ “The particular amount of restitution is a matter which must of necessity be left almost totally to the discretion of the trial judge. That discretion should not be overturned except in cases of clear and flagrant abuse.” ’ ” (quoting Richardson v. State, 603 So.2d 1132, 1134 (Ala.Crim.App.1992), quoting in turn Clare v. State, 456 So.2d 355, 356 (Ala.Crim.App.1983), affirmed, 456 So.2d 357 (Ala.1984))).

As to the $20,616.36 the trial court ordered in restitution for the hammer attachment, Bussman testified that when the attachment was returned to him it was unusable because, he said, it had been stored on its side while it was in Theodorou’s possession. Theodorou testified that the attachment worked properly when he obtained the equipment in January 2005, and he testified that he stored the attachment in an upright position. However, Bussman testified that the attachment was lying on its side when it was located at Theodorou’s residence. According to Bussman, if the hammer attachment was not stored in an upright position, the weight of the 300- to 400-pound steel rod inside the attachment would warp the attachment and make it unsafe to operate. Bussman testified that having the hammer attachment inspected to determine the extent of the damage caused by storing it on its side would have involved “tearfing] it all the way back down to the bare steel and buildpng] it back up,” which Bussman suggested was cost-prohibitive. In light of that testimony, there was sufficient evidence indicating that the hammer attachment was damaged after Theodorou received it, and there consequently was sufficient evidence indicating that Theodorou’s criminal conduct proximately caused the damage to the hammer attachment. Reeves, 24 So.3d at 554 (“ ‘[0]nce property is illegally removed from the custody of its owner it is reasonably foreseeable that the property may suffer damage.’ ” (quoting State v. Lacey, (Ms. 2006-CA-115, Nov. 7, 2007) (Ohio Ct.App.2007) (not published in N.E.2d))). Additionally, Theodorou has not demonstrated that the trial court’s award of $20,616.36 in restitution for the hammer attachment exceeded the wide discretion the trial court had to make that determination. See Howard, supra. Consequently, that part of the restitution order is due to be affirmed.

The remaining $12,801.58 the trial court ordered as restitution — $1,612.50 for the difference in the cost of the backhoe and the insurance proceeds received for the backhoe, $6,616.58 for lost revenue, and $4,572.50 for replacement loss — represents damage Bussman Construction suffered after the theft in September 2004 but before, according to Theodorou, he received the stolen property in January 2005. Theodorou argues that each of these amounts was proximately caused by the theft of the property rather than by his receipt of the stolen property.

The State responds to this position, however, by making the following argument:

“A person who knowingly purchases stolen property is a part of the chain of activities that led to the theft of property because, absent a willing buyer of such stolen property, the theft of the property might not have occurred. A person who receives the stolen property can foresee that the person from whom the property was stolen will incur a financial loss, including the necessity to replace the equipment and loss of the use of the equipment. Consequently, it is proper to hold the buyer of the stolen property jointly or severally responsible with the thief for the loss to the victim, even though the loss may have occurred before he received the stolen property.”

(Emphasis added.) In reply, Theodorou states that he

“agrees that it is theoretically possible for the theft of property and the subsequent receipt of the stolen property to jointly or severally proximately cause injury to a victim of such criminal conduct. Likewise, Theodorou agrees that there may be concurrent or multiple proximate causes from which damages flow. However, Theodorou argues that this mere theoretical possibility alone is not enough to award damages. There still must exist some sort of causal connection between the criminal conduct and the actual damages.... In the instant case, there is no such connection between the actual damages and Theo-dorou’s receipt of the stolen property.”

In Commonwealth v. Kelly, 836 A.2d 931 (Pa.Super.Ct.2003), the Pennsylvania Superior Court considered a “market” theory of causation similar to that advanced by the State in this case. In Kelly, the defendant had entered a plea of nolo contendere to three counts of receiving stolen property; specifically, the defendant had received a compact-disc player and two cellular telephones that had been stolen from a truck. 836 A.2d at 932. The trial court ordered Kelly to pay $2,269.80 in restitution as a condition of his probation. Of that amount, $1,938.41 was for repairs to the truck for damage that occurred when the items were stolen. On appeal, the defendant “claim[ed] that it was improper to order restitution for damage to a truck that was broken into when all he was convicted of was receiving stolen property of items taken from inside the truck and there was no evidence that he was the one who broke into the truck.” 836 A.2d at 932. The Pennsylvania Superior Court rejected the defendant’s argument, however. The court reasoned:

“While the repair of the truck is not directly connected to the crime of receiving stolen property, it is indirectly connected to the crime of [receiving stolen property]. Even if [the defendant] did not actually break into the truck, he provided a market for the person or persons who did.... ”

836 A.2d at 932. In concluding its opinion, the court reiterated that rationale, noting:

“[T]he verdict means [the defendant] was convicted of buying the goods, and he either knew they were stolen or reasonably should have known they were stolen. We note that [the trial court] reasoned that ‘if those people aren’t out there buying stolen property, people aren’t breaking in....’ (Id.) In other words, [the defendant] provided a market for that person who is criminally responsible for the break-in and damage to the truck. While this would not be enough to be considered a ‘direct’ result of the criminal activity, we do agree with [the trial court] that this can be considered ‘indirectly’ connected to the criminal activity.”

836 A.2d at 934.

In Kelly, it was crucial that the restitution for damage to the truck was imposed as a condition of the defendant’s probation rather than as a part of the defendant’s sentence. If the restitution had been imposed as a part of the defendant’s sentence, the applicable statute would have required a “direct causal connection” between the receipt of the stolen property and the damage to the truck. 836 A.2d at 933. However, because the restitution was imposed as a condition of the defendant’s probation, a different statute controlled; under that statute “the required nexus between the damage and the offense is relaxed, and restitution only require[d] some connection to criminal responsibility....” 836 A.2d at 932.

Like the Pennsylvania statute in Kelly applicable to restitution ordered as a condition of probation, Alabama’s restitution scheme incorporates a “relaxed” standard of “indirect” causation for determining whether a defendant’s criminal activity has caused a victim particular pecuniary damage. Specifically, § 15-18-66(4), Ala. Code 1975, defines “victim” as “[a]ny person whom the court determines has suffered a direct or indirect pecuniary damage as a result of the defendant’s criminal activities” (emphasis added).

Thus, although Theodorou’s receipt of the stolen equipment may not have directly caused the damage here, we agree with the State’s argument that Theodorou’s criminal conduct was an indirect cause of that damage; by purchasing the property that he knew was stolen, Theodorou intentionally placed himself in the chain of activities that included the theft of the specific property and caused the additional $12,801.58 in damages he was ordered to pay as restitution. See also Strough, 501 So.2d at 491 (“Where an injury is caused by intentional conduct, the rules of proximate cause are more liberally applied.”). All the damages Theodorou was ordered to pay as restitution were related to the specific property he received. Moreover, the authorities above make it clear that the purpose of the Act is “to fully compensate victims of crime for ‘any pecuniary loss, damage or injury5 suffered as a direct or indirect result of a criminal act.” Roberts, 863 So.2d at 1153. Accordingly, we agree with the Court of Criminal Appeals’ conclusion that Theodorou’s receipt of the stolen property caused the damage for which the trial court awarded Bussman Construction restitution.

Finally, Theodorou argues that the amount of the restitution order is “punitive in nature.” The Court of Criminal Appeals concluded that Theodorou’s arguments in this regard do not comply with Rule 28(a)(10), Ala. R.App. P., because Theodorou failed to include sufficient “citations to the cases, statutes, [and] other authorities” to support his contention that the amount of ordered restitution was excessive. As in his brief to the Court of Criminal Appeals, the only citations to authority included in this section of Theodo-rou’s brief to this Court are citations to general propositions of law that do not support his specific arguments. As the Court of Criminal Appeals noted:

“Theodorou does not cite any authority for his proposition that the circuit court is bound by the fair market value of the property stolen and may not consider other factors. Contra State v. Ellis, 838 P.2d 1310, 1312 (Ariz.Ct.App.1992) (holding that while fair market value is generally the proper measure of a victim’s loss, fair market value is not always the appropriate standard, and the trial court’s consideration of other factors is within its broad discretion). Theodorou also has not cited any authority for his proposition that the circuit court may not order him to pay restitution above the actual monetary value of the stolen equipment. Contra Ex parte Fletcher, 849 So.2d 900, 909 (Ala.2001) (holding that the circuit court may, as part of its restitution order, require the defendant to pay interest). Consequently, Theodo-rou has not complied with Rule 28(a)(10), [Ala. R.App. P.,] and his arguments are not properly before this court.”

Theodorou does not address the authorities relied upon by the Court of Criminal Appeals, nor has he demonstrated that the Court of Criminal Appeals otherwise erred in affirming the trial court’s restitution order. Consequently, the judgment of the Court of Criminal Appeals is due to be affirmed.

Conclusion

The judgment of the Court of Criminal Appeals is affirmed.

AFFIRMED.

WOODALL, STUART, BOLIN, and PARKER, JJ., concur.

COBB, C.J., and LYONS and MURDOCK, JJ., concur in part and dissent in part.

SHAW, J., recuses himself.

LYONS, Justice

(concurring in part and dissenting in part).

The statutory basis for the trial court’s order requiring restitution provides, in pertinent part, “[A]ll perpetrators of criminal activity or conduct [shall] be required to fully compensate all victims of such conduct or activity for any pecuniary loss, damage or injury as a direct or indirect result thereof.” § 15-18-65, Ala.Code 1975 (emphasis added). Section 15-18-66(4), Ala.Code 1975, defines “victim” as “[a]ny person whom the court determines has suffered a direct or indirect pecuniary damage as a result of the defendant’s criminal activities.” (Emphasis added.)

I concur in the main opinion in all respects except its affirmance of the Court of Criminal Appeals’ judgment as to the propriety of allowing restitution for damage sustained by the victim, Bussman Construction Company, after the theft but before Jerome Theodorou’s receipt of the stolen property. The main opinion upholds the trial court’s award of restitution for such damage by ascribing to the word “indirect” a connotation that permits relaxation of the requirement of causation so as to disregard completely the statutory requirement that the loss be caused by the defendant’s criminal activity. The flaw in that analysis lies in failing to confine the dichotomy between direct and indirect to an analysis of recoverable damages, as opposed to principles of causation.

Black’s Law Dictionary defines “consequential loss” as follows:

“A loss arising from the results of damage rather than from the damage itself A consequential loss is proximate when the natural and probable effect of the ■wrongful conduct, under the circumstances, is to set in operation the intervening cause from which the loss directly results. When the loss is not the natural and probable effect of the wrongful conduct, the loss is remote.— Also termed indirect loss; consequential injury. Cf. direct loss.”

Black's Law Dictionary 964 (8th ed. 2004)(emphasis added). The contrast between direct and indirect damage is frequently encountered in limitations on liability for a breach of warranty. See, e.g., Leonard v. Terminix Int’l Co., 854 So.2d 529, 534-35 (Ala.2002) (“Thus, the arbitration clause is not unconscionable solely because it purports to preclude a remedy for ‘indirect, special or consequential damages or loss of anticipated profits.’ ” (emphasis added)).

Applying the foregoing rule to this case, the damage to the hammer attachment to the backhoe would be direct; any damages for lost profits after the receipt by Theodo-rou of the stolen property running until the time Bussman Construction had been made whole would be “a loss arising from the results of the damage” or an indirect loss.

In Grace v. State, 899 So.2d 302, 308 (Ala.Crim.App.2004), the Court of Criminal Appeals, dealing with the statutory basis for restitution in criminal cases, aptly observed:

“ ‘ “ ‘[I]t is well established that criminal statutes should not be “extended by construction.” ’ Ex parte Evers, 434 So.2d 813, 817 (Ala.1983). ‘“[C]riminal statutes must be strictly construed, to avoid ensnaring behavior that is not clearly proscribed.” ’ United States v. Bridges, 493 F.2d 918, 922 (5th Cir.1974).” Carroll [v. State], 599 So.2d [1253,] 1264 [ (Ala.Crim.App.1992) ].’ ”

(Quoting State v. Brooks, 701 So.2d 56, 58 (Ala.Crim.App.1996).)

I believe the main opinion violates the foregoing well settled principles. I would reject the expansive market theory urged by the State, recognized in Commonwealth v. Kelly, 836 A.2d 931 (Pa.Super.Ct.2003), and embraced by the main opinion. I would adhere to the view expressed in B.M.J. v. State, 952 So.2d 1174, 1176 (Ala.Crim.App.2006), in which the Court of Criminal Appeals reversed the trial court’s restitution order requiring payment for repairs to a go-cart where there was no evidence linking the defendant charged with receiving stolen property to the damaged condition of the go-cart. The court in B.M.J. stated:

“[I]n Best v. State, 895 So.2d 1050, 1054 (Ala.Crim.App.2004), quoting Day v. State, 557 So.2d 1318, 1319 (Ala.Crim.App.1989), quoting in turn Strough v. State, 501 So.2d 488, 491 (Ala.Crim.App.1986), this Court stated that ‘ “ ‘[bjefore a defendant can be held liable for damages, it must be established that his criminal act was the proximate cause of the injury sustained ”” by the victim. See Butler v. State, 608 So.2d 773, 775 (Ala.Crim.App.1992) (quoting Strough, 501 So.2d at 491, quoting in turn City of Mobile v. Havard, 289 Ala. 532, 538, 268 So.2d 805, 810 (1972)) (‘ “ ‘The proximate cause of an injury is the primary moving cause without which it would not have occurred, but which, in the natural and probable sequence of events, produces the injury.’ ” ’). Therefore, under Alabama’s restitution statute, the defendant could be ordered to pay restitution to the victim of his crime only if one of two conditions existed: (1) his victim suffered direct or indirect pecuniary loss as a result of the criminal activity of which the defendant has been convicted, or (2) he admitted to other criminal conduct during the proceedings that was the proximate cause of the victim’s pecuniary loss or damages.
“Here, the State and defense counsel stipulated to the admission of police reports tending to show that B.M.J. was found to be in ‘possession’ of the go-cart, which was later discovered to be stolen. There was no evidence presented either at B.M.J.’s delinquency hearing or at the restitution hearing, that his criminal activity, i.e., receiving stolen property, was the proximate cause of the damage, either directly or indirectly, to the stolen vehicle. Additionally, B.M.J. never admitted to having caused any damage to the vehicle.”

952 So.2d at 1175-76 (emphasis added).

I therefore respectfully dissent from that aspect of the main opinion permitting restitution for damage sustained by Buss-man Construction after the theft but before Theodorou’s criminal activity.

COBB, C.J., and MURDOCK, J., concur.

      . Section 13A-8-19, Ala.Code 1975, provides:
      "(a) Receiving stolen property which does not exceed five hundred dollars ($500) in value constitutes receiving stolen property in the third degree.
      "(b) Receiving stolen property in the third degree is a Class A misdemeanor.”

      . The record does not indicate what happened to the backhoe that was recovered from Theodorou.

      . Bussman testified that he had counted each weekday as a "working day.” He stated that the actual number of working days was less because of factors such as bad weather. He had not determined the precise number of days in the year actually worked, however, but he stated that a lower number of days actually worked would have resulted in the calculation of a higher average revenue per day. He also testified on cross-examination that he did not know if the weather would have prevented Bussman Construction from working at the construction site on the three days in question.

      . The dissenting opinions by Judge Wise and Judge Welch to the Court of Criminal Appeals’ unpublished memorandum express a similar view. 53 So.3d at 151.

      . See 18 Pa. Cons.Stat. § 1106(a) ("Upon conviction for any crime wherein property has been stolen, converted or otherwise unlawfully obtained, or its value substantially decreased as a direct result of the crime, or wherein the victim suffered personal injury directly resulting from the crime, the offender shall be sentenced to make restitution in addition to the punishment prescribed therefor.” (emphasis added)).

      . See 18 Pa. Cons.Stat. § 1106(b) ("Whenever restitution has been ordered pursuant to subsection (a) and the offender has been placed on probation or parole, his compliance with such order may be made a condition of such probation or parole.”); 42 Pa. Cons.Stat. § 9754(c) ("The court may as a condition of its order require the defendant:.... (8) To make restitution of the fruits of his crime or to make reparations, in an amount he can afford to pay, for the loss or damage caused thereby.”). See also Commonwealth v. Harriott, 919 A.2d 234, 239 (Pa.Super.Ct.2007) (discussing 42 Pa. Cons.Stat. § 9754(c)(8) and noting that it "reference[s] loss or damage ‘caused’ by the crime but [it] do[es] not dictate that the restitution be a direct result of the offense”).

      . Cf. Chapman v. State, 733 So.2d 1055 (Fla.Dist.Ct.App.1999), a case in which the defendant, who was ordered to pay restitution for certain stolen items she had received, was also ordered to pay restitution for damage to items that were stolen at the same time but that the defendant had not actually received. The statute at issue in Chapman, Fla. Stat. § 775.089(l)(a), authorized "restitution for damage or loss caused ‘directly or indirectly’ by the defendant.” Bogert v. State, 834 So.2d 392, 394 (Fla.Dist.Ct.App.2003) (quoting Fla. Stat. § 775.089(l)(a)). Under that statute, Florida courts "have ... held that a defendant receiving stolen property and pawning it is sufficiently 'related' to the victim's loss to justify restitution.” Bogert, 834 So.2d at 394.
      The Chapman court reversed the order of restitution as to the stolen items that the defendant did not "actually or constructively possess[].” 733 So.2d at 1056. Chapman illustrates that even the more relaxed, "indirect” standard of causation is not without limits. The present case does not involve the concerns at issue in Chapman, however, because Theodorou was ordered to pay restitution only for damage related to the specific stolen property that he received.

      . Theodorou points out that the trial court’s order mistakenly asserts that he pleaded guilty to "theft of property” rather than to receiving stolen property. The Court of Criminal Appeals concluded that that mistake was the result of a clerical error. Our conclusion that Theodorou’s receipt of the stolen property caused the damage at issue pretermits any need to consider whether the trial court, in referencing a plea to "theft of property,” erroneously attributed to Theodorou damage that was caused solely by the theft of the property and not by his receipt of the stolen property.


source: Caselaw Access Project

author: KELLUM, Judge.

license: Public Domain

text:
    Kathleen Mary KINGS v. STATE of Alabama.
    CR-09-0118.
    Court of Criminal Appeals of Alabama.
    May 28, 2010.

      Leonard F. Mikul, Bay Minette, for appellant.
    Troy King, atty. gen., and Jack W. Willis, asst. atty. gen., for appellee.
   KELLUM, Judge.

The appellant, Kathleen Mary Kings, was convicted in Baldwin District Court of one count of third-degree domestic violence based on harassment, a violation of § 13A-6-132, Ala.Code 1975. Kings appealed to the Baldwin Circuit Court for a trial de novo, pursuant to Rule 30.1, Ala. R.Crim. P. The jury returned a verdict finding Kings guilty of third-degree domestic violence. The trial court sentenced Kings to 30 days in the county jail; however, the trial court suspended that sentenced and placed Kings on 6 months’ unsupervised probation. Kings was also ordered to pay a $250 fine, a $25 assessment to the crime victims compensation fund, and court costs.

The evidence presented at trial demonstrated the following pertinent facts: Kathleen Mary Kings, the appellant, and Ann Kings Fraley, the victim, are sisters. The incident in question occurred at the home of their mother, Marjorie Kings. On March 20, 2007, Fraley went to her mother’s house to deliver a present. While Fraley was standing in the front yard, Kings approached Fraley and began taunting her with a bracelet that belonged to Fraley. Apparently, Kings, who lived with their mother at this house, found a bracelet belonging to Fraley inside her mother’s house. Fraley testified that the bracelet and the eharms/medallions attached to it had great sentimental value to her because her grandmother had given her one of the medallions before she died. According to Fraley, Kings waived the bracelet in front of Fraley’s face and refused to return the bracelet to Fraley when she asked Kings to do so. Kings stepped inside her car and Fraley followed her. A physical altercation ensued in which Kings repeatedly kicked Fraley in the chest. When Kings kicked Fraley in the chest, the necklace Fraley was wearing at the time caused multiple cuts on Fraley’s chest. Fraley telephoned 911 for assistance, and the police arrived at the scene soon thereafter.

After both sides rested and the trial court instructed the jury on the applicable law, the jury convicted Kings of one count of third-degree domestic violence. Kings appealed.

On appeal, Kings argues that the trial court erroneously denied her motion for a judgment of acquittal made at the close of the State’s evidence. Specifically, Kings contends that § 13A-6-132 does not encompass conduct occurring between siblings. Alternatively, Kings argues, even if the statute is applicable to siblings under the “present or former household member” provision of the statute, the State failed to present evidence tending to show that Kings and the victim were “present or former household members.”

“ ‘ “ ‘In determining the sufficiency of the evidence to sustain a conviction, a reviewing court must accept as true all evidence introduced by the State, accord the State all legitimate inferences therefrom, and consider all evidence in a light most favorable to the prosecution.’ ” Ballenger v. State, 720 So.2d 1033, 1034 (Ala.Crim.App.1998), quoting Faircloth v. State, 471 So.2d 485, 488 (Ala.Crim.App.1984), aff'd, 471 So.2d 493 (Ala.1985). “ ‘The test used in determining the sufficiency of evidence to sustain a conviction is whether, viewing the evidence in the light most favorable to the prosecution, a rational finder of fact could have found the defendant guilty beyond a reasonable doubt.’ ” Nunn v. State, 697 So.2d 497, 498 (Ala.Crim.App.1997), quoting O’Neal v. State, 602 So.2d 462, 464 (Ala.Crim.App.1992). “ ‘When there is legal evidence from which the jury could, by fair inference, find the defendant guilty, the trial court should submit [the case] to the jury, and, in such a case, this court will not disturb the trial court’s decision.’ ” Farrior v. State, 728 So.2d 691, 696 (Ala.Crim.App.1998), quoting Ward v. State, 557 So.2d 848, 850 (Ala.Crim.App.1990). “The role of appellate courts is not to say what the facts are. Our role ... is to judge whether the evidence is legally sufficient to allow submission of an issue for decision [by] the jury.” Ex parte Bankston, 358 So.2d 1040, 1042 (Ala.1978).
“ ‘ “The trial court’s denial of a motion for judgment of acquittal must be reviewed by determining whether there was legal evidence before the jury at the time the motion was made from which the jury by fair inference could find the defendant guilty. Thomas v. State, 363 So.2d 1020 (Ala.Cr.App.1978). In applying this standard, this court will determine only if legal evidence was presented from which the jury could have found the defendant guilty beyond a reasonable doubt. Willis v. State, 447 So.2d 199 (Ala.Cr.App.1983). When the evidence raises questions of fact for the jury and such evidence, if believed, is sufficient to sustain a conviction, the denial of a motion for judgment of acquittal does not constitute error. McConnell v. State, 429 So.2d 662 (Ala.Cr.App.1983).” ’
“Gavin v. State, 891 So.2d 907, 974 (Ala.Crim.App.2003), quoting Ward v. State, 610 So.2d 1190, 1191 (Ala.Crim.App.1992). See also, Ward v. State, 814

So.2d 899, 908-910 (Ala.Crim.App.2000). Hollaway v. State, 979 So.2d 839, 843 (Ala.Crim.App.2007).

Section 13A-6-132(a), Ala.Code 1975, provides that a person commits domestic violence in the third degree if she “commits the crime of harassment pursuant to subsection (a) of Section 13A-11-8” and the victim is “a current or former spouse, parent, child, any person with whom the defendant has a child in common, a present or former household member, or a person who has or had a dating or engagement relationship with the defendant.” Kings challenges only the sufficiency of the State’s evidence with respect to the “present or former household member” element of third-degree domestic violence.

The dispositive issue on appeal is whether the State presented sufficient evidence tending to show that Kings and Fraley currently live, or formerly lived, in the same household. After reviewing the evidence before us, we are forced to conclude that the State failed to present sufficient evidence tending to show that Kings and Fraley currently lived in the same household or that they formerly lived in the same household. The State presented evidence at trial indicating that Kings lived with her mother at the house where the incident occurred. The State presented no evidence indicating that Fraley lived in the same house with Kings and their mother at the time of the incident. Furthermore, the only evidence presented by the State that could remotely demonstrate that Fra-ley and Kings formerly lived in the same household was the mother’s testimony that Kings found Fraley’s bracelet in the trash at the mother’s residence. The mere fact that one of Fraley’s possessions was found at her mother’s residence does not support the inference that Fraley and Kings formerly lived in the same household. Furthermore, evidence indicating that Fraley and Kings are sisters does not, by itself, support an inference that they formerly lived in the same household. Thus, the State did not present sufficient evidence showing that Fraley and Kings were former or current household members under § 13A-6-132. Thus, we have no choice but to conclude that the State failed to prove that Kings committed domestic abuse in the third degree.

Based on the foregoing, Kings’s conviction for domestic violence in the third degree is reversed and a judgment is rendered in favor of Kings.

REVERSED AND JUDGMENT RENDERED.

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


author: WINDOM, Judge.

text:
    Devane Latril HILLARD v. STATE of Alabama.
    CR-09-0282.
    Court of Criminal Appeals of Alabama.
    May 28, 2010.

      Phyllis J. Logsdon, Dothan, for appellant.
    Troy King, atty. gen., and Jean A. Ther-kelsen, asst. atty. gen., for appellee.
   WINDOM, Judge.

Devane Latril Hillard appeals his conviction for first-degree robbery, á violation of § 13A-8^1, Ala.Code 1975, and his resulting sentence of 30 years in prison.

The evidence presented at trial tended to establish the following facts. On July 21, 2008, Marzine McMillian telephoned Danny “Big D” Shackelford to arrange the purchase of crack cocaine. Shackelford agreed to sell McMillian some crack, and the two planned to meet in a parking lot across from a nightclub known as Frank’s to execute the drug transaction.

According to McMillian, while he was waiting on Shackelford near Frank’s, a white car and a green truck pulled into a parking lot across the street from Frank’s. (R. 20.) Two men were in the green truck and three men were in the white car. One of the individuals waved at McMillian, indicating that he should approach the vehicles. As McMillian approached the vehicles, Jonathon Andrews, who was previously in the white car, brandished a shotgun and ordered McMil-lian not to move. At that point, McMillian turned to flee, and Andrews shot him. (R. 23.) The next thing McMillian remembered was the truck and the car speeding away.

Shortly thereafter, McMillian was taken to the hospital. While he was at the hospital, McMillian identified Shackelford as one of the individuals who robbed him. McMillian also identified Jonathon Andrews as the individual who shot him. He, however, could not identify the other individuals in the vehicles and did not know whether Hillard had been involved in the robbery.

Sergeant Ray Weihe of the Dothan Police Department was summoned to the scene to investigate the robbery and shooting. After McMillian informed Sergeant Weihe of Shackelford’s involvement in the robbery, Sergeant Weihe took Shackelford into custody. While in custody, Shackel-ford waived his right to counsel and gave a statement. According to Sergeant Weihe, Shackelford admitted his participation in the crime and stated that Hillard was involved in the planning and in the execution of the robbery. Further, through his investigation, Sergeant Weihe learned that Hillard, Jonathon Andrews, and Archawa-cha Harris, who were cousins, were the individuals in the white car and that Shackelford and Jermaine Tillman were the individuals in the green truck.

After discovering the identities of the individuals involved in the robbery, Sergeant Weihe sought to arrest them. While executing a warrant for Jermaine Tillman, Sergeant Weihe learned that Archawacha Harris might be living at Melissa Brant-ley’s apartment. He and other officers went to Brantley’s apartment to look for Harris. When the officers arrived at Brantley’s apartment, they knocked on the door and Brantley answered. At that point, the officers asked for and received her consent to search the apartment. As the officers were entering the apartment, they saw Harris and arrested him.

After arresting Harris, the officers secured the remainder of the apartment. While securing the rest of the apartment, the officers found Hillard hiding in a closet in the kitchen and placed him under arrest. Later, Hillard gave a tape-recorded statement in which he admitted that he was in the room when Andrews, Shackel-ford, and the others planned the robbery. He also admitted that he rode in the car with Andrews and Harris. However, he denied that he was involved in the planning of the robbery and stated that he only rode in the car to go to Frank’s and did not think that a robbery would take place.

At trial, Hillard testified that he was with Shackelford and the others on the night of the robbery, but he did not participate in the planning or execution of the robbery. According to Hillard, he thought the men were just joking when they discussed robbing McMillian. Hillard also explained that he was hiding in Brantley’s closet when the police entered because there was an outstanding warrant for his arrest on an unrelated misdemeanor.

On appeal, Hillard argues that the circuit court abused its discretion by allowing Sergeant Weihe to testify regarding an out-of-court statement made by Shackel-ford. Specifically, Hillard argues that Sergeant Weihe’s testimony regarding Shackelford’s statement that Hillard was involved in the planning and execution of the robbery was inadmissible hearsay; therefore, the circuit court erred by allowing Sergeant Weihe to testify about the statement over Hillard’s objection. The State argued at trial, and the circuit court agreed, that Shackelford’s out-of-court statement was admissible as a statement of a coconspirator in furtherance of the conspiracy. (R. 45.) (The circuit court ruled that Shackelford’s statement was “a statement by a co-conspirator ... in furtherance of the conspiracy” and overruled Hillard’s objection.) This Court disagrees.

“The admission or exclusion of evidence is a matter within the sound discretion of the trial court.” Taylor v. State, 808 So.2d 1148, 1191 (Ala.Crim.App.2000). “The question of admissibility of evidence is generally left to the discretion of the trial court, and the trial court’s determination on that question will not be reversed except upon a clear showing of abuse of discretion.” Ex parte Loggins, 771 So.2d 1093, 1103 (Ala.2000).

“Hearsay is not admissible except as provided by [the Alabama Rules of Evidence], or by other rules adopted by the Supreme Court of Alabama or by statute.” Rule 802, Ala. R. Evid. “ ‘Hearsay’ is a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted.” Rule 801(c), Ala. R. Evid. Excluded from the definition of hearsay is “a statement by a coconspirator of a party during the course and in furtherance of the conspiracy,” and offered against that party. Rule 801(d)(2)(E), Ala. R. Evid.

This Court has explained that “[statements made by a co-conspirator within the res gestae of the crime are admissible against the defendant.” Deardorff v. State, 6 So.3d 1205, 1218 (Ala.Crim.App.2004) (quoting Acklin v. State, 790 So.2d 975, 999 (Ala.Crim.App.2000), quoting in turn, Moore v. State, 539 So.2d 416, 420 (Ala.Crim.App.1988)). “[WJhere proof of a conspiracy exists, any act or statement by an accused’s co-conspirator in the commission of the crime, done or made before the commission of the crime, during the existence of the conspiracy and in the furtherance of a plan or design, is admissible against the accused.” Conley v. State, 354 So.2d 1172, 1177-78 (Ala.Crim.App.1977) (citations omitted). See also Duncan v. State, 827 So.2d 838, 854 (Ala.Crim.App.1999) (same); Broaden v. State, 641 So.2d 1302, 1303 (Ala.Crim.App.1994); Deutcsh v. State, 610 So.2d 1212, 1222 (Ala.Crim.App.1992). “‘In order for the extrajudicial statement of a coconspirator to qualify under the coconspirators’ exception, three distinct conditions must be met. First, the statement must have been made in furtherance of the conspiracy. Second, the statement must have been made during the pendency of the conspiracy. Finally, ... the existence of the conspiracy must be shown by independent evidence.’ ” Deutcsh v. State, 610 So.2d 1212 (Ala.Crim.App.1992) (quoting Annot., Necessity and Sufficiency of Independent Evidence of Conspiracy to Allow Admission of Extrajudicial Statements of Coconspirators, 46 A.L.R.3d 1148 (1972)). See also, Frazier v. State, 632 So.2d 1002, 1006 (Ala.Crim.App.1993) (reiterating the three conditions to the admissibility of a coconspirator’s out-of-court statement).

Regarding the first requirement, “incriminating acts or statements of one [coconspirator] after the ends of the conspiracy have been accomplished, and no longer exist, are not admissible against another.... ” Eaton v. State, 280 Ala. 659, 197 So.2d 761, 763 (1967). See also Rule 801, Ala. R. Evid., Advisory Committee’s Notes (recognizing that under both State and federal authority, a coconspirator’s statement is inadmissible if it is “made after the objectives of the conspiracy have either failed or been achieved”). Further, as the Supreme Court of the United States has explained, a “confession or admission by one coconspirator after he has been apprehended is not in any sense a furtherance of the criminal enterprise. It is rather a frustration of it.” Fiswick v. United States, 329 U.S. 211, 217, 67 S.Ct. 224, 91 L.Ed. 196 (1946). See also United States v. Cesareo-Ayala, 576 F.3d 1120, 1131 (10th Cir.2009) (“When a declarant cocon-spirator has been apprehended, his confession and admissions to law enforcement are not in furtherance of the conspiracy. Fiswick v. United States, 329 U.S. 211, 217 (1946).”); United States v. Grimmett, 236 F.3d 452, 455 (8th Cir.2001) (holding that a coconspirator’s post-arrest confession to police is not in furtherance of a conspiracy and does not fall within the coconspirator exception); United States v. Lopez, 584 F.2d 1175, 1181 (2nd Cir.1978) (same). Following this approach, Alabama courts have repeatedly held “that a nontestifying codefendant’s statement to police implicating the accused in the crime is inadmissible against the accused [and] does not fall within any recognized exception to the hearsay rule.... ” Jackson v. State, 791 So.2d 979, 1024 (Ala.Crim.App.2000) (citing Lee v. Illinois, 476 U.S. 530, 106 S.Ct. 2056, 90 L.Ed.2d 514 (1986); Bruton v. United States, 391 U.S. 123, 88 S.Ct. 1620, 20 L.Ed.2d 476 (1968); R.L.B. v. State, 647 So.2d 803 (Ala.Crim.App.1994); and Ephraim v. State, 627 So.2d 1102 (Ala.Crim.App.1993)).

Applying these principles, this Court holds that Shackelford’s statement is not excluded from the definition of hearsay pursuant to Rule 801(d)(2)(E), Ala. R. Evid, because his post-arrest admission to Sergeant Weihe was not during the existence of and in the furtherance of the conspiracy. Specifically, Shackelford’s statement was made after the conclusion of the robbery. Further, because Shackel-ford’s statement consisted of an admission of his and his coconspirators’ involvement in the robbery, the statement was not in furtherance of, but rather frustrated, the conspiracy. See Fiswick, 329 U.S. at 217. Accordingly, the circuit court abused its discretion in allowing the State to admit into evidence Shackelford’s hearsay statement indicating that Hillard participated in the planning and execution of the robbery.

Further, under the facts of this case, this Court cannot say that the erroneous admission of Shackelford’s hearsay statement was harmless beyond a reasonable doubt. Rule 45, Ala. R.App. P.; Chapman v. California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967). Shackel-ford’s hearsay statement directly rebutted Hillard’s statement and testimony to the effect that he was present during the planning and execution of the robbery but did not participate in either. Likewise, Shack-elford’s statement negated Hillard’s testimony that he was hiding from the police because there was an outstanding warrant for his arrest on an unrelated misdemean- or charge. Although the State presented a strong case of guilt, this Court cannot say that the State’s evidence of Hillard’s guilt was so overwhelming as to render the improper admission of Shackelford’s statement directly identifying Hillard as a participant in the robbery harmless beyond a reasonable doubt.

Because Shackelford’s hearsay statement may have contributed to the jury’s verdict, this Court concludes that the erroneous admission of that statement adversely affected Hillard’s substantial rights and thus was not harmless. Rule 45, Ala. R.App. P. Accordingly, the judgment of the circuit court is reversed, and this cause remanded for proceedings consistent with this opinion.

REVERSED AND REMANDED.

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

      . Because of our disposition of this issue, this Court will not address the second issue raised in Hillard’s brief.


text:
    STATE of Alabama v. Thomas L. McCLURE.
    CR-08-1730.
    Court of Criminal Appeals of Alabama.
    May 28, 2010.

      Troy King, atty. gen., and John M. Porter, asst. atty. gen., for appellant.
    Donald Rush Jones, Jr., Montgomery; and Ronald W. Wise, Montgomery, for ap-pellee.
   WINDOM, Judge.

The State of Alabama appeals the Montgomery Circuit Court’s July 6, 2009, order granting Thomas L. McClure’s motion to suppress all evidence obtained during a traffic stop. On April 3, 2009, the Montgomery County grand jury issued an indictment charging McClure with one count of possession of a controlled substance, a violation of 13A-12-212(a)(l), Ala.Code 1975; one count of possession of drug paraphernalia, a violation of § 13A-12-260(c), Ala.Code 1975; and one count of possession of marijuana for other than personal use, a violation of § 13A-12-213(a)(l), Ala. Code 1975.

On April 29, 2009, McClure filed a motion to suppress, in which he argued that the State’s evidence should be suppressed because such evidence was illegally obtained. On July 6, 2009, the circuit court conducted an evidentiary hearing on McClure’s motion to suppress. At the conclusion of that hearing, the circuit court granted McClure’s motion. On July 8, 2009, the State of Alabama timely filed its notice of appeal.

The following facts were established during the suppression hearing. On October 30, 2008, at 10:20 pm., Corporal J.S. Dunn, an officer with the Crime Reduction Team of the Montgomery Police Department, and his partner, Agent B.L. Butler, “paced” McClure driving approximately 70 miles an horn’ in a 45-mile-an-hour construction zone on 1-85 in Montgomery. After determining that McClure was exceeding the speed limit, Corporal Dunn activated his emergency lights. At that point, McClure merged from the left lane into the right lane but did not immediately pull over. Instead, McClure continued to drive for approximately one half of a mile.

After McClure eventually pulled over, Corporal Dunn observed him lean over to the passenger side of the car. In the meantime, Corporal Dunn approached McClure’s car, and McClure rolled the window down only halfway. Even with the window only halfway down, Corporal Dunn detected a “really, really strong” odor of air freshener indicating that McClure “had just sprayed a whole bunch of air freshener.” (R. 8, 9.)

Corporal Dunn also observed that McClure was really nervous. While standing next to McClure’s car, Corporal Dunn informed McClure that he was going to issue McClure a warning ticket for speeding. Corporal Dunn then asked McClure to get out of his car and stand next to Corporal Dunn’s car while he wrote the ticket. Although he had been informed that he would receive only a warning, McClure remained extremely nervous. (R. 10.) Agent Butler testified that during this time, he noticed that McClure was sweating profusely. (R. 75-76.) Corporal Dunn also noticed that while he was awaiting the traffic citation, McClure was nervously moving his legs around and staring at his car, which, according to Corporal Dunn, was an indication that the vehicle contained contraband. (R. 10,13.)

After Corporal Dunn gave McClure his warning citation, McClure did not move; he just stood there. According to Corporal Dunn, McClure was still extremely nervous and appeared to be too afraid to move. (R. 13.) A few seconds later, McClure began apologizing for speeding. (R. 23.) Corporal Dunn then asked McClure if he had any guns, cocaine, or marijuana in his car. McClure responded that he did not, but became more tense and nervous and clinched the citation when Corporal Dunn mentioned marijuana. (R. 14.) According to Corporal Dunn, when asked about marijuana, McClure’s response was different from his responses when asked about guns and cocaine. Noticing McClure’s reaction to his question about marijuana, Corporal Dunn asked McClure for permission to search the car. McClure responded that he was in a hurry, but he never said no. Corporal Dunn asked again if he could search the car, and McClure responded, “Well, I don’t do anything wrong,” but he still did not say no. (R. 16.)

Corporal Dunn then asked McClure “if there was any reason why the [drug] dog would indicate the presence of any narcotics in his vehicle.” (R. 14-15, 16.) At that point, McClure asked Corporal Dunn if he “really had a dog.” (R. 15.) Corporal Dunn then told McClure that “it would be better if [h]e just call[ed] a dog out [t]here.” (R. 16.) As Corporal Dunn was preparing to call a canine unit, McClure stopped him by stating, “[n]o, no, no. Don’t call a dog. Don’t call a dog. You can search.” (R. 16-17.) McClure then informed Corporal Dunn that there was marijuana in the trunk of the car.

After McClure consented to a search and informed Corporal Dunn that marijuana was in the trunk, Corporal Dunn and Agent Butler searched the car. Inside, they found marijuana, an Adderall pill, a ceramic pipe, and $6,400. (R. 18.) McClure was then placed under arrest.

Based upon these facts, the circuit court found that McClure was detained after he had been issued the warning citation for speeding and that Corporal Dunn lacked a reasonable suspicion to detain and question McClure after the citation was issued. (R. 49-60.) Having found that McClure was illegally detained, the circuit court granted his motion to suppress.

On appeal, the State argues that McClure was not detained after the citation was issued, and even if he was, the detention was justified under Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968). The State also asserts that McClure validly consented to a search of his car; therefore, the circuit court erred in granting McClure’s motion to suppress.

Initially, although the State raises arguments relating to the propriety of the search of McClure’s vehicle, the dis-positive issue before this Court is whether McClure was unlawfully detained after he had been issued the warning citation. The circuit court did not question or rule on the legality of the search itself; instead, it ruled that the search was the fruit of an illegal detention. Presumably the circuit court did not rule on the propriety of the search itself because, if the detention was legal, the search was clearly supported by probable cause and arguably supported by consent. Further, the circuit court may not have ruled on the legality of the search itself because the circuit court was aware that, absent an illegal detention, suppression would be inappropriate under the inevitable-discovery doctrine. Accordingly, this Court will address only whether the circuit court erred in determining that McClure was unlawfully detained after the warning citation was issued.

“This Court reviews de novo a circuit court’s decision on a motion to suppress evidence when the facts are not in dispute. See State v. Hill, 690 So.2d 1201, 1203 (Ala.1996); State v. Otwell, 733 So.2d 950, 952 (Ala.Crim.App.1999).” State v. White, 28 So.3d 827, 829 (Ala.Crim.App.2009) (quoting State v. Skaggs, 903 So.2d 180, 181 (Ala.Crim.App.2004)). In the instant case, the relevant facts are uncontested; therefore, the only issue before this Court is the circuit court’s application of the law to those facts. Consequently, this Court affords no presumption in favor of the circuit court’s ruling and reviews the circuit court’s decision de novo.

It is well settled that warrantless searches and seizures are per se unreasonable under the Fourth Amendment unless the State establishes that the search or seizure falls within a recognized exception. Ex parte Hilley, 484 So.2d 485, 488 (Ala.1985). Exceptions to the warrant requirement include: 1) objects in plain view; 2) consensual searches; 3) a search incident to a lawful arrest; 4) hot pursuit or emergency situations; 5) probable cause coupled with exigent circumstances; and 6) an investigatory detention and frisk pursuant to Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968). Ex parte Tucker, 667 So.2d 1339, 1343 (Ala.1995). Under the Terry exception, “[a] routine traffic stop may be prolonged if police have a ‘reasonable suspicion’ of other criminal activity.” Camp v. State, 983 So.2d 1141, 1145 (Ala.Crim.App.2007).

“In reviewing reasonable suspicion determinations, courts must look at the ‘ “totality of the circumstances” ’ to see whether the detaining officer had a ‘ “particularized and objective basis” ’ for suspecting wrongdoing. United States v. Arvizu, 534 U.S. 266, 273, 122 S.Ct. 744, 151 L.Ed.2d 740 (2002), quoting United States v. Cortez, 449 U.S. 411, 417-418, 101 S.Ct. 690, 66 L.Ed.2d 621 (1981). ‘This process allows officers to draw on their own experience and specialized training to make inferences from and deductions about the cumulative information available to them that “might well elude an untrained person.” ’ Arvizu, 534 U.S. at 273, 122 S.Ct. 744 (quoting Cortez, 449 U.S. at 418, 101 S.Ct. 690).”

Muse v. State, 42 So.3d 789, 791-92 (Ala.Crim.App.2009). In the context of a prolonged traffic stop, “the totality of the circumstances, as known to the officer at the inception of the stop, [or, in this case, at the time of the continued detention,] must be considered.” State v. Washington, 623 So.2d 392, 395-96 (Ala.Crim.App.1993) (emphasis in original) (quoting Arnold v. State, 601 So.2d 145, 149 (Ala.Crim.App.1992)). See also State v. Green, 992 So.2d 82, 88 (Ala.Crim.App.2008) (holding that circumstances known to the officer at the time of the continued detention should be considered).

Assuming without deciding that the traffic stop was prolonged, this Court holds that the following circumstances established a reasonable suspicion of criminal activity that justified the prolonged detention. When Corporal Dunn activated his emergency lights, McClure took “a long time to pull over....” (R. 18.) Once he finally pulled his vehicle over, McClure leaned over into the passenger side of the car. Cf. Ex parte Kelley, 870 So.2d 711, 723 (Ala.2003) (recognizing that a “police officer’s suspicion can legitimately ripen into probable cause where the officer observes furtive gestures after he or she has ordered the individual to stop”). When Corporal Dunn approached the car, McClure rolled the window down only halfway, and Corporal Dunn detected a “really, really strong” odor of air freshener indicating that McClure “had just sprayed a whole bunch of air freshener.” (R. 8, 9.) See United States v. West, 219 F.3d 1171, 1178-79 (10th Cir.2000) (holding that the scent of air freshener is a proper factor in a reasonable-suspicion analysis); Feeney v. State, 208 P.3d 50, 55-56 (Wyo.2009) (holding that the “strong odor” of “dryer sheets” was a factor supporting the officer’s reasonable suspicion that a drug crime was occurring). When initially approached, McClure was extremely nervous and sweating profusely, and his extreme nervousness did not subside during the encounter or after the warning citation was issued. See Camp, 983 So.2d at 1145 (recognizing that extreme nervousness is a “pertinent factor” in determining when reasonable suspicion justified a prolonged traffic stop). Additionally, while Corporal Dunn was writing the warning citation, McClure stared at his car, which Corporal Dunn testified was, based on his experience, an indicator that contraband was in the car. (R. 10-11.) Finally, after McClure was given the citation, he just stood there as if frozen with fear.

Based on the totality of the circumstances, McClure’s behavior created a reasonable suspicion that he was committing a crime and justified the prolonged traffic stop. Therefore, the circuit court erred in finding that the prolonged stop rendered the search of the car illegal and in granting McClure’s motion to suppress.

For the foregoing reasons, the circuit court’s order is reversed, and this cause is remanded for proceedings consistent with this opinion.

REVERSED AND REMANDED.

WELCH, KELLUM, and MAIN, JJ., concur. WISE, P.J., recuses herself.

      . The legality of the initial stop is not at issue on appeal.

      . Before the search of the car, McClure admitted to Corporal Dunn that there was marijuana in the trunk. (R. 17.) McClure’s admission that there was marijuana in the trunk of the car provided probable cause justifying a search of the car under the automobile exception to the warrant requirement. See State v. Black, 987 So.2d 1177, 1180 (Ala.Crim.App.2006) (citing Maryland v. Dyson, 527 U.S. 465, 466-67, 119 S.Ct. 2013, 144 L.Ed.2d 442 (1999) (holding that under the "automobile execution,” a vehicle may be searched without a warrant based on probable cause alone); Adams v. State, 815 So.2d 578, 580 (Ala.2001) (considering an admission by a codefendant in holding that probable cause justified the search of a car); United States v. Are, 590 F.3d 499, 507 (7th Cir.2009) (holding that the defendant’s admission that contraband was in his bedroom constituted probable cause for the issuance of a warrant);
        People v. Brown, 24 A.D.3d 884, 886, 806 N.Y.S.2d 262, 264 (2005) (holding that the “defendant's admission of the presence of a crack pipe in the car provided probable cause for the entry into and search of the car for the pipe under the automobile exception to the warrant requirement”).

      . In order for illegally obtained "evidence to qualify for admission under [the inevitable-discovery exception] to the [Fourth Amendment] exclusionary rule, there must be a reasonable probability that the evidence in question would have been discovered by lawful means, and the prosecution must demonstrate that the lawful means which made discovery inevitable were being actively pursued prior to the occurrence of the illegal conduct.” Jefferson v. Fountain, 382 F.3d 1286, 1296 (11th Cir.2004). Here, Corporal Dunn testified that he was in the process of calling a canine unit to perform a sniff test of the car when McClure stopped him, consented to the search, and admitted that there was marijuana in the trunk. (R. 15-17.) If the detention at that point was legal and no exception to the warrant requirement applied, there is a reasonable probability that the drug evidence would have been detected by the canine unit, thus providing probable cause for the search of the car. Accordingly, under the inevitable-discovery doctrine, any illegality in the search itself would not have rendered the evidence inadmissible. Cf. West v. State, 53 So.3d 990, 994 (Ala.Crim.App.2010) (holding that law enforcement had probable cause to search the vehicle based on the canine’s indication that narcotics were present in the vehicle); State v. Montgomery, 968 So.2d 543, 552 (Ala.Crim.App.2006) ("[A]n alert by a trained drug-sniffing dog provides probable cause to search without a warrant.”).