author: THOMAS, Judge.

text:
    Ex parte IMERYS USA. (In re Imerys USA v. Charles Wilson).
    2100174.
    Court of Civil Appeals of Alabama.
    May 6, 2011.
    Certiorari Denied Aug. 5, 2011 Alabama Supreme Court 1100935.

      Brent A. Tyra of Smith, Tyra, Thomas & Haggard, LLC, Alabaster, for petitioner.
    Bernard D. Nomberg and David P. Nomberg of The Cochran Firm, Birmingham, for respondent.
    James A. Abernathy II of Ford & Abernathy, P.C., Tuscaloosa; and Patrick J. Ballard of Ballard Law Office, Birmingham, for amicus curiae Alabama Association for Justice, in support of the respondent.
   THOMAS, Judge.

In 2006, Charles Wilson was employed by Imerys USA (“Imerys”). During the course of his employment, Wilson allegedly sustained a work-related injury to his back in November 2006. Wilson was first treated by Dr. Walter Pinson. Wilson then requested a panel of four orthopedists from which to choose, see § 25-5-77(a), Ala.Code 1975; Wilson selected Dr. Dewey Jones IV. Wilson was treated by Dr. Jones from January 2007 until April 5, 2007, when Dr. Jones placed Wilson at maximum medical improvement (“MMI”), indicated in his note that Wilson could return to see him on an as-needed basis, and recommended that Wilson be referred to a physiatrist to “overtake his oral pain management situation.”

Wilson was referred to Dr. Mark Dow-ney at Alabama Orthopedic Center for pain-management treatment. Dr. Downey treated Wilson with periodic epidural injections between May 2007 and January 2008. In January 2008, Dr. Downey referred Wilson to the Doleys Cliniq/Pain and Rehabilitation Institute, where he was treated by Dr. Thomas Ryder. In November 2008, after pain-management treatment had not resolved Wilson’s pain issues, Dr. Ryder requested authorization from Imerys’s third-party administrator to refer Wilson to Dr. Andrew Cordover, an orthopedist, for further evaluation of whether Wilson would benefit from surgical intervention. The third-party administrator denied authorization, stating in its response to Dr. Ryder that Wilson should be sent to see Dr. Downey, who the administrator incorrectly referred to as the “assigned orthopedist.” Ultimately, however, the third-party administrator scheduled for Wilson another appointment with Dr. Jones, which Wilson refused to attend.

Imerys moved to compel Wilson to attend the appointment with Dr. Jones for the purpose of surgical evaluation. Imer-ys also requested in that motion that the trial court order that Imerys was not required to honor Dr. Ryder’s attempted referral to Dr. Cordover. Wilson responded to Imerys’s motion, requesting first that the trial court deny Imerys’s motion to compel Wilson to see Dr. Jones. Wilson also sought affirmative relief, requesting that the trial court order Imerys to authorize the referral to Dr. Cordover.

After a hearing on the competing motions, the trial court denied Imerys’s motion to compel. In addition, the trial court ordered Imerys to authorize evaluation and treatment by Dr. Cordover. In its judgment, the trial court explained its reasoning as follows:

“Based upon the Alabama Workers’ Compensation Act and the cases interpreting the Act, referrals made by an authorized treating physician are to be authorized, approved and paid for by the employer. See Overnite Transportation Company v. J.R. McDuffie, 933 So.2d 1092 (Ala.Civ.App.2005); Ex parte Alabama Power Co., 863 So.2d 1099 (Ala.Civ.App.2003); City of Auburn v. Brown, 638 So.2d 1339 (Ala.Civ.App.1993); Jasper Cmty. Hosp. v. Hyde, 419 So.2d 594 (Ala.Civ.App.1982); Waffle House v. Howard, 794 So.2d 1123 (Ala.Civ.App.2000); Blue Bell, Inc. v. Nichols, 479 So.2d 1264 (Ala.Civ.App.1985).”

Imerys seeks mandamus relief from of the trial court’s order.

“ ‘ “[Mjandamus is a drastic and extraordinary writ that will be issued only when there is: (1) a clear legal right in the petitioner to the order sought; (2) an imperative duty upon the respondent to perform, accompanied by a refusal to do so; (3) the lack of another adequate remedy; and (4) properly invoked jurisdiction of the court.” Ex parte Horton, 711 So.2d 979, 983 (Ala.1998).’ ”

Ex parte Builders & Contractors Ass’n of Mississippi Self-Insurer’s Fund, 980 So.2d 1003, 1006 (Ala.Civ.App.2007) (quoting Ex parte Alloy Wheels Int’l, Ltd., 882 So.2d 819, 821 (Ala.2003), overruled on other grounds by Ex parte DBI, Inc., 23 So.3d 635, 657 (Ala.2009)).

Imerys argues that the trial court could not, under existing precedent, order it to authorize treatment by Dr. Cordover based upon Dr. Ryder’s referral. Imerys readily agrees that it is required to honor a referral by an authorized treating physician. See Ex parte City of Prattville, 56 So.3d 684, 690 (Ala.Civ.App.2010) (“Once [the authorized treating physician] has been selected by the employer [or by the panel-of-four procedure outlined in § 25-5-77(a) ], that physician has the implied authority to refer the employee to a specialist for reasonably necessary medical treatment....”); Overnite Transp. Co. v. McDuffie, 933 So.2d 1092, 1099 (Ala.Civ.App.2005) (“Under [Ala.Code 1975,] § 25-5-77(a), and ... interpreting that section, an employee is entitled to reimbursement for reasonably necessary medical treatment from a physician or other medical provider to whom he or she has been referred by the initial, authorized treating physician.”). However, Imerys argues that it is not necessarily required to honor a referral for reasonably necessary treatment made by a physician or medical professional to whom the employee has been referred by the authorized treating physician; that is, Imerys maintains that only the authorized treating physician has the authority to refer an employee to another medical provider. Imerys also argues that the trial court’s order requiring it to authorize treatment by Dr. Cordover, an orthopedist, would result in permitting Wilson to choose another orthopedist without utilizing the panel-of-four procedure authorized in Ala.Code 1975, § 25-5-77(a).

The Workers’ Compensation Act, § 25-5-1 et seq., Ala.Code 1975, gives an employer the right to select an injured employee’s physician in the first instance. See Ala.Code 1975, § 25-5-77(a); see Ex parte Alabama Power Co., 863 So.2d 1099, 1102 (Ala.Civ.App.2003) (stating that the employer has the right “to exercise considerable control over the medical care for which it must pay, including the right to choose the employee’s physician in the first instance”). If an injured employee is dissatisfied with the physician selected by the employer, he or she may request that the employer provide a panel of four physicians from which the employee may choose a treating physician. § 25-5-77(a). There is no other method by which the employee may choose another physician provided by the employer.

However, as noted above, an authorized treating physician is permitted to refer an employee to another physician or medical professional for reasonably necessary medical treatment. Ex parte City of Prattville, 56 So.3d at 690; McDuffie, 933 So.2d at 1096-99. That other physician to whom an employee is referred by the authorized treating physician “thereby becomes an authorized physician.” Ex parte City of Prattville, 56 So.3d at 690. This court has also held that a physician to whom the employee is referred has implicit authority to control the aspect of treatment for which the referral was made. Ex parte Massey Chevrolet, Inc., 23 So.3d 33, 40 (Ala.Civ.App.2009).

In Ex parte Massey Chevrolet, this court addressed whether an employer was required to pay for pain-management treatment rendered to the employee by Dr. Aprill. Ex parte Massey Chevrolet, Inc., 23 So.3d at 35-40. Dr. Peterson, the employee’s authorized treating physician, had referred the employee to Dr. Nichols for pain-management treatment. Id. at 37. Dr. Nichols had, during an undetermined period of time, recommended that the employee seek certain treatment from Dr. Aprill. Id. at 39-40. The employer in Ex parte Massey Chevrolet argued that Dr. Aprill was not an authorized physician and that it should not be required to pay for any treatment Dr. Aprill had rendered to the employee. Id. at 36. This court disagreed with the employer in part, explaining that Dr. Peterson’s referral to Dr. Nichols for the specific purpose of managing the employee’s pain-management treatment had “implicitly authorized [Dr. Nichols] to control [the employee’s] pain-management treatment.” Id. at 40. This court concluded that the referral from Dr. Peterson permitted Dr. Nichols to assert control over the employee’s pain-management treatment and included with it the right to recommend that the employee seek further pain-management treatment from Dr. Aprill. Id. Thus, we held that the employer was required to pay for any treatment rendered by Dr. Aprill during the period that Dr. Nichols had recommended such treatment but that the employer was not required to pay for any treatment rendered after Dr. Nichols had withdrawn his recommendation that the employee seek treatment from Dr. Aprill. Id.

Based on our discussion in Ex parte Massey Chevrolet of the implicit authority derived from a referral from an authorized treating physician, we can glean that the referral from the authorized treating physician confers, in many cases, the right to control the aspect of treatment for which the referral was made. However, the referral does not transfer to the referred physician the right to control all aspects of the employee’s treatment. That is, the referred physician does not become the authorized treating physician for all purposes by virtue of the referral. The authorized treating physician continues to have authority over the employee’s overall medical treatment. See Ex parte Massey Chevrolet, 23 So.3d at 40-41.

To determine whether Dr. Ryder’s referral to Dr. Cordover was implicitly authorized, we must examine the series of referrals in the present case. First, Dr. Jones, who is an orthopedist, referred Wilson to Dr. Downey for pain-management treatment. Dr. Downey determined that his treatment was not adequately addressing Wilson’s pain, and Dr. Downey decided to refer Wilson to Dr. Ryder for further and different pain-management treatment. Dr. Downey’s referral of Wilson to Dr. Ryder fell within the scope of Dr. Dow-ney’s authority as Wilson’s pain-management physician to direct Wilson’s pain-management treatment. However, by virtue of Dr. Downey’s referral, Dr. Ryder did not gain the authority to refer Wilson for orthopedic evaluation or treatment. At no time did Dr. Jones cede his control over Wilson’s course of orthopedic treatment, and he remains Wilson’s original authorized treating physician under § 25-5-77(a). Dr. Ryder’s referral to Dr. Cordover for orthopedic evaluation was, therefore, not implicitly authorized by either Dr. Jones’s referral to Dr. Downey or Dr. Downey’s subsequent referral to Dr. Ryder. Wilson must therefore seek further orthopedic evaluation or treatment from Dr. Jones.

Accordingly, we agree with Imerys that Dr. Ryder’s referral of Wilson to an orthopedist other than his authorized treating physician, Dr. Jones, is outside the scope of Dr. Jones’s original referral and runs afoul of § 25-5-77(a). We therefore grant the petition and issue the writ ordering the trial court to set aside its order requiring Imerys to authorize treatment by Dr. Cordover.

PETITION GRANTED; WRIT ISSUED.

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

      . The petitioner is identified inconsistently in the pleadings and other documents appended as exhibits to the petition for the writ of mandamus. On certain of the pleadings and documents, it is identified as “Imerys d/b/a E.C.C.A. Calcium Products, Inc.” We have chosen to use the name that appears on the petition.

      . An employer must honor such a request, provided, of course, that the referral is for reasonably necessary medical treatment; whether a referral is for reasonably necessary medical treatment may be challenged pursuant to the utilization-review process provided for in Ala.Code 1975, § 25-5-293(g) and (k). See, e.g., Overnite Transp. Co. v. McDuffie, 933 So.2d 1092, 1098 n. 4 (Ala.Civ.App.2002). Imerys makes no argument that the request by Dr. Ryder that Wilson be evaluated to determine whether surgical intervention is warranted is not reasonable and necessary.


source: Caselaw Access Project

author: THOMAS, Judge. BRYAN, Judge,

license: Public Domain

text:
    Mary E. (Robbins) FINN v. Mary Katelyn ROBBINS.
    2100094.
    Court of Civil Appeals of Alabama.
    May 20, 2011.
    Certiorari Denied July 29, 2011 Alabama Supreme Court 1101003.
    Horace V. O’Neal, Jr., of Leo & O’Neal, Birmingham, for appellant.
    J. Ronald Boyd and Heather Fann of Boyd, Fernambucq & Dunn, P.C., Birmingham, for appellee.
   THOMAS, Judge.

AFFIRMED. NO OPINION.

See Rule 53(a)(1) and (a)(2)(E), Ala. RApp. P.; Rule 45, Ala. RApp. P.; Ex parte Clark, 23 So.3d 1107, 1116 (Ala.2009); Bush v. Alabama Farm Bureau Mut. Cas. Ins. Co., 576 So.2d 175, 177 (Ala.1991); State Farm Mut. Auto. Ins. Co. v. Motley, 909 So.2d 806, 821-22 (Ala.2005); Johnson v. Langley, 495 So.2d 1061, 1065 (Ala.1986); Flomer v. Farthing, 64 So.3d 36, 39 (Ala.Civ.App.2010); and Amie v. Conrey, 801 So.2d 841, 846 (Ala.Civ.App.2001).

The appellant’s request for an attorney fee is denied. The appellee’s request for an attorney fee on appeal is granted in the amount of $2,000.

PITTMAN and MOORE, JJ., concur.

BRYAN, J., concurs specially, which THOMPSON, P.J., joins.

BRYAN, Judge,

concurring specially.

I agree that the judgment of the Jefferson Circuit Court is due to be affirmed. I write specially only to state that I would award the appellee, Mary Katelyn Robbins, attorney’s fees on appeal in the amount of $6,700 — the full amount of attorney’s fees that she requested on appeal. In this action, Mary Katelyn, who is the daughter of the appellant, Mary E. (Robbins) Finn, was forced to bring an action against her mother to enforce her mother’s undisputed obligation to pay a portion of her postminority educational expenses. The mother refused to pay her portion of Mary Katelyn’s postminority educational expenses despite the facts that she admitted that she had the ability to pay those expenses, that she did not wish to terminate her postminority-educational-support obligation, and that she had received correspondence from Mary Katelyn and an attorney informing her of the amount of college-related expenses that had been incurred by Mary Katelyn. Moreover, the mother filed an appeal that this court has found to be without merit, which required Mary Katelyn, who is a college student, to incur the additional cost of hiring an attorney to represent her interests on appeal. For the foregoing reasons, I would award Mary Katelyn $6,700 in attorney’s fees on appeal.

THOMPSON, P.J., concurs.


author: MOORE, Judge.

text:
    L.R.J. v. C.F.
    2100437.
    Court of Civil Appeals of Alabama.
    July 15, 2011.
    Donna W. Prashad of Prashad Law Firm, LLC, Montgomery, for appellant.
   MOORE, Judge.

L.R.J. (“the mother”) appeals from a judgment of the Montgomery Juvenile Court (“the juvenile court”) to the extent that it awarded C.F. (“the father”) supervised visitation with L.A.F. (“the child”) and ordered both parents to participate in a coparenting class. We dismiss the appeal.

On January 26, 2010, the mother filed a “Dependent Complaint Custody Affidavit and Petition” in the juvenile court, alleging that the child was dependent because “[t]he [child’s] parents, guardian, or other custodian, are unable to discharge responsibilities to and for the child.” Specifically, she alleged that “[t]he father is verbally and physically aggressive toward[] the mother and places the child in harm’s way”; she requested that she be awarded “sole custody” of the child and that any visitation awarded to the father be supervised. Following a hearing on October 18, 2010, the juvenile court entered a “Temporary Order” on November 1, 2010, that stated, among other things:

“THIS CAUSE comes before the Court for a Petition for Custody filed by the Mother....
“Upon consideration of the relevant and admissible evidence presented herein, including the demeanor and veracity of the witnesses, the Court finds and it is hereby,
“ORDERED, ADJUDGED, AND DECREED AS FOLLOWS:
“3. The parties have submitted CS-41’s and a CS^2 to this Court. It is therefore Order[ed] that the Father shall pay to the Mother the sum of $324.00 per month in temporary child support. An [income withholding order] shall be issued to the Father’s employer. Until such time as payments are made by the employer, it shall be the Father’s responsibility to pay the sum to the Mother monthly beginning November 1, 2010.
“4. The Father and [the] Mother have agreed to visitation as follows:
“a) The Father shall exercise visitation at the Maternal Grandparents home with the Maternal Grandparents and/or the Mother present.
“b) The Father shall coordinate with the Mother for all of his visitation requests prior to his visitation.
“5. The Court takes notice of a Restraining Order issued by the Municipal Court of Montgomery, Alabama. The Order states in part that the Father is prohibited from telephoning or contacting the Mother; to stay away from the home of the Mother; and to stay away from the Mother’s employment. The Court is under the understating that the parties have agreed that the Father may contact the Mother and go to the Mother’s home for the sole purpose of visiting the minor child. Should any altercations occur, this Court shall be notified and take any action it deems necessary upon consideration of the facts and testimony of the parties.
“6. A Final Hearing on all matters shall be held on January 31, 2011....”

(Capitalization in original; bold typeface omitted; emphasis added.) On January 31, 2011, the juvenile court held a final hearing; it entered a judgment that same day, awarding the mother sole legal and physical custody of the child, awarding the father supervised visitation, ordering the father to complete anger-management classes, and ordering both parties to participate in a coparenting class. On February 2, 2011, the mother filed her notice of appeal to this court.

On appeal, the mother argues that the juvenile court exceeded its discretion in awarding the father visitation and in requiring her to participate in a coparenting class with the father. Initially, however, we must determine whether the juvenile court had jurisdiction to enter its January 31, 2011, judgment. “[A] lack of subject-matter jurisdiction is not subject to waiver by the parties, and it is our duty to consider a lack of subject-matter jurisdiction ex mero motu.” Ex parte T.C., 63 So.3d 627, 630 (Ala.Civ.App.2010).

Pursuant to Ala.Code 1975, § 12-15-114(a), juvenile courts have jurisdiction over dependency actions. That Code section provides, however, that a “dependency action shall not include a custody dispute between parents.” In Ex parte T.C., 63 So.3d at 630, this court held that, in enacting that statute, “[t]he clear intent of the Legislature was to provide that the juvenile courts of this state should no longer be deciding custody disputes except insofar as their resolution is directly incidental to core juvenile-court jurisdiction.”

“Juvenile courts are purely creatures of statute and have extremely limited jurisdiction. See Ex parte K.L.P., 868 So.2d 454, 456 (Ala.Civ.App.2003). That limited jurisdiction allows a juvenile court to make a disposition of a child in a dependency proceeding only after finding the child dependent. V.W. v. G.W., 990 So.2d 414, 417 (Ala.Civ.App.2008) (quoting K.B. v. Cleburne County Dep’t of Human Res., 897 So.2d 379, 389 (Ala.Civ.App.2004) (Murdock, J., concurring in the result)) (“‘[I]n order to make a disposition of a child in the context of a dependency proceeding, the child must in fact be dependent at the time of that disposition.” ’).”

T.B. v. T.H., 30 So.3d 429, 431 (Ala.Civ.App.2009); see also K.C.G. v. S.J.R., 46 So.3d 499, 501-02 (Ala.Civ.App.2010) (“If a juvenile court determines that the child is not dependent, the court must dismiss the dependency petition.... On the other hand, if, and only if, a juvenile court finds that the child is dependent, the court may then conduct proceedings to determine the custodial disposition of the child.”).

In the present case, although the mother alleged in her petition that the child was dependent, the juvenile court treated the case as a pure custody dispute between the mother and the father. In fact, in the temporary order entered on November 1, 2010, the juvenile court stated that the cause was before the court on “a Petition for Custody filed by the Mother.” Additionally, the juvenile court stated at the beginning of the final hearing: “We are here this morning on a petition for temporary custody that has been filed by the mother.” Furthermore, in the juvenile court’s January 31, 2011, judgment, it did not find the child dependent. Because the juvenile court did not determine the child to be dependent, it lacked jurisdiction to enter a judgment affecting the custody of the child. T.B., 30 So.3d at 431. Thus, the juvenile court’s January 31, 2011, judgment is void. See, e.g., R.T. v. B.N.H., 66 So.3d 807, 812 (Ala.Civ.App.2011). “ ‘This court is required to dismiss an appeal from a void judgment.’ ... Accordingly, we dismiss the [mother’s] appeal as being from a void judgment, albeit with instructions to the juvenile court to vacate [its void judgment.]” R.T., 66 So.3d at 812 (quoting Owens v. Owens, 51 So.3d 364, 367 (Ala.Civ.App.2010)).

APPEAL DISMISSED WITH INSTRUCTIONS.

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

      . The parties were never married. Although there is no indication that paternity has ever been established, neither party requested a paternity adjudication, the parties referred to C.F. as "the father” throughout the proceedings, and the juvenile court referred to C.F. as "the father” during the trial and in the final judgment.

      . Because the November 1, 2010, order is not relevant to the disposition of this appeal, we need not determine whether the juvenile court properly exercised its jurisdiction pursuant Ala.Code 1975, § 12-15-138, which provides that a juvenile court, "on an emergency basis, may enter an order of protection or restraint to protect the health or safety of a child.” We note that, even if that order was properly entered, any emergency situation would have been resolved at that time and would not have extended the juvenile court’s jurisdiction to enter the January 31, 2011, judgment. See R.T., 66 So.3d at 811.


author: KELLUM, Judge.

text:
    Terrence BEEMON v. STATE of Alabama.
    CR-08-1889.
    Court of Criminal Appeals of Alabama.
    Nov. 5, 2010.
    Rehearing Denied Jan. 21, 2011.
    Certiorari Denied Aug. 5, 2011 Alabama Supreme Court 1100527.

      Susan Graham James, Montgomery, for appellant.
    Troy King, atty. gen., and James B. Prude, asst. atty. gen., for appellee.
   KELLUM, Judge.

The appellant, Terrence Beemon, was convicted of one count of first-degree robbery, see § 13A-8-43, Ala.Code 1975. The trial court sentenced Beemon to 30 years’ imprisonment; the sentence included a 10-year enhancement pursuant to § 13A-5-6(a)(4) Ala.Code 1975 — the mandatory sentence enhancement applied when a firearm or deadly weapon is used or attempted to be used during the commission of a Class A felony, such as first-degree robbery. The trial court also ordered Beemon to pay $20,000 restitution, $1,000 to the crime victims compensation fund, and court costs.

The evidence presented at trial established that around 8:45 p.m. on December 8, 2007, four robbers armed with pistols and stun guns invaded the home of Praful Patel on Towne Lake Place as he returned home from work. One of the robbers pistol-whipped Praful in the kitchen and tied him up, using plastic binding. Praful’s parents, who were in the living room at the time, were thrown to the ground, beaten, and likewise bound. One robber kicked down the door to the computer room in the Patels’ house and forced Praful’s son, May-ank Patel, out of the room at gunpoint. Mayank was then taken through the house at gunpoint while the robbers looked for money. One of the robbers demanded that Praful tell them where his money was hidden and poured hot water on him to make him comply with their demands. Praful eventually led the robbers to a small safe, which the robbers broke open; the safe contained more than $20,000 in cash, which the robbers took. The robbers then fled from the Patel household. Although each of the robbers was wearing dark clothing and some sort of mask covering his face, Praful could tell that the robbers were all black men because he could see a little bit of their faces through the openings in their masks. Mayank testified that all four robbers were wearing gloves.

Lisa Boone, who lived on Towne Lake Place, testified to seeing a “light-colored blue silvery looking car” parked at the end of the street on the night in question. (R. 57.) Boone found this noteworthy because she had never seen a vehicle parked in that spot in the 15 years she had been living on that street. Boone also noted that the vehicle had a Ten Commandments bumper sticker on the left side of the bumper. Boone proceeded to drive through the neighborhood and returned to Towne Lake Place approximately five minutes later. Boone observed that the vehicle was still parked in the same place and that no one was inside the vehicle. After hearing about the robbery at the Patel house, Boone contacted the Montgomery Police Department (“MPD”) and provided a description of the vehicle she had seen parked on Towne Lake Place, specifically noting the Ten Commandments sticker she had observed on the vehicle’s bumper.

Later in the evening, police arrested Beemon after stopping a vehicle matching the description given to police. While in custody, Beemon received a text from a person later determined to be Ronald Car-gill that read: “[You] need to take that bumper sticker off.” (C. 102; R. 143, 151— 153.) MPD Detective B.E. Thornell conducted the first interview with Beemon at the police station. During this interview, Beemon denied any involvement with the robbery and told Detective Thornell that on the night in question, he was at home watching a pay-per-view boxing match. Beemon also told Thornell that his vehicle was also at home on the night in question and that he did not lend it to anyone.

Beemon later gave additional statements to MPD Detective Mike Myrick. In his second statement, Beemon initially reiterated his claim that he was at home the night the Patels were robbed, but after Detective Myrick told Beemon that they could check to see if he actually ordered the boxing match on pay-per-view, Beemon changed his story. Beemon told Detective Myrick that he was at a restaurant when he received a call from Ronald Cargill. Cargill asked Beemon to come and pick him up, then give him a ride home. Beem-on agreed and Cargill directed him to a house in the Towne Lake subdivision. Beemon told Detective Myrick that upon arriving at the house, Cargill came running from the house wearing a camouflage jacket and dark jeans. After Detective Myrick began to question the facts given to him, Beemon once again changed his story. In his third version of events, Beemon told Detective Myrick that he did not pick Cargill up at the residence in Towne Lake; rather he drove Cargill to the residence in question. Beemon claimed that once they arrived there, the two waited outside the house, but did not get out of the vehicle or make contact with anyone there and drove away after waiting a few minutes. Beemon told Myrick that they drove to the house because Carlos Abrams had telephoned Cargill and told him that he needed help with the house. Detective Myrick testified that Beemon admitted that he knew a robbery was going on when he drove over to the house.

Kristen Maturi of the Alabama Department of Forensic Sciences conducted DNA testing on a pair of brown work gloves recovered by MPD Detective G.R. Tim-merman from the driver’s side floorboard of Beemon’s vehicle. According to Maturi, the DNA evidence recovered from the inside of the gloves matched Beemon’s genetic profile, and the DNA evidence recovered from blood on the outside of the glove matched the genetic profile of Praful Patel.

Beemon testified in his own defense at trial. Beemon stated that he was riding around with Cargill on the night in question when Abrams telephoned them and directed them to the Patel house. Beemon admitted that he knew a robbery was taking place. Once they arrived at the house, Cargill got out to join in the robbery while Beemon remained inside the vehicle. Beemon testified that he was not armed with a weapon at the time and did not know if Cargill was armed. Cargill returned to the vehicle after 5 or 10 minutes, at which time the two drove away from the scene. Beemon testified that he asked Cargill what happened inside the residence, but claimed that he did not know that the people in the house had been robbed until he arrived at the police station. Beemon admitted to lying in prior statements because he did not want to put himself at the scene of the robbery. On cross-examination, Beemon admitted that he took Cargill over to the Patel household knowing that Cargill was going to participate in the robbery. Beemon stated that he did not know if anyone other than Cargill was involved with the robbery. Beemon believed Cargill was joking when he sent Beemon the text telling him to take the Ten Commandments bumper sticker off his vehicle. Beemon also stated that the gloves recovered from his vehicle containing his DNA were not his; he claimed that he had never seen them before trial.

After both sides rested and the trial court instructed the jury on the applicable law, the jury convicted Beemon of one count first-degree robbery as charged in the indictment. Beemon appealed.

I.

On appeal, Beemon argues that the trial court erred in failing to instruct the jury on second- and third-degree robbery as lesser-included offenses of first-degree robbery. Specifically, Beemon contends that there was ample evidence presented at trial to support both instructions.

At the conclusion of the State’s case-in-chief, counsel for Beemon asked the trial court if it anticipated instructing the jury on second- or third-degree robbery as a lesser-included offense of first-degree robbery. The trial court stated that, based on the evidence presented, it would not be giving those instructions. It explained:

“Well, if the jury believes the evidence in this case, that would be inapplicable. It wouldn’t apply in this case. So the Court you know, it’s up to the jury to believe the evidence. And the evidence that has been presented, there’s just no grounds for the lesser included offense or on robbery or kidnapping.”

(R. 249.) Counsel for Beemon again asked the trial court at the close of the defense’s case to instruct the jury on second- or third-degree robbery, but the trial court once again refused.

“In Clark v. State, 896 So.2d 584, 641 (Ala.Crim.App.2000), the Court of Criminal Appeals addressed when it is appropriate to give a jury a charge on a lesser-included offense:
“ ‘ “A person accused of the greater offense has a right to have the court charge on lesser included offenses when there is a reasonable theory from the evidence supporting those lesser included offenses.” MacEwan v. State, 701 So.2d 66, 69 (Ala.Crim.App.1997). An accused has the right to have the jury charged on “‘any material hypothesis which the evidence in his favor tends to establish.’ ” Ex parte Stork, 475 So.2d 623, 624 (Ala.1985). “[Ejvery accused is entitled to have charges given, which would not be misleading, which correctly state the law of his case, and which are supported by any evidence, however[ ] weak, insufficient, or doubtful in credibility,” Ex parte Chavers, 361 So.2d 1106, 1107 (Ala.1978), “even if the evidence supporting the charge is offered by the State.” Ex parte Myers, 699 So.2d 1285, 1290-91 (Ala.1997), cert. denied, 522 U.S. 1054, 118 S.Ct. 706, 139 L.Ed.2d 648 (1998). However, “[t]he court shall not charge the jury with respect to an included offense unless there is a rational basis for a verdict convicting the defendant of the included offense.” § 13A-l-9(b), Ala. Code 1975. “The basis of a charge on a lesser-included offense must be derived from the evidence presented at trial and cannot be based on speculation or conjecture.” Broadnax v. State, 825 So.2d 134, 200 (Ala.Crim.App.2000), aff'd, 825 So.2d 233 (Ala.2001), cert. denied, 536 U.S. 964, 122 S.Ct. 2675, 153 L.Ed.2d 847 (2002). “ ‘A court may properly refuse to charge on a lesser included offense only when (1) it is clear to the judicial mind that there is no evidence tending to bring the offense within the definition of the lesser offense, or (2) the requested charge would have a tendency to mislead or confuse the jury.’ ” Williams v. State, 675 So.2d 537, 540-41 (Ala.Crim.App.1996), quoting Anderson v. State, 507 So.2d 580, 582 (Ala.Crim.App.1987).’ ”

Warren v. State, 35 So.3d 639, 640-41 (Ala.2008).

A person commits the crime of first-degree robbery if that person “violates § 13A-8-43 and he: (1) [i]s armed with a deadly weapon or dangerous instrument.” § 13A-8-41(a), Ala.Code 1975. A person commits the crime of second-degree robbery if that person “violates § 13A-8-43 and he is aided by another person actually present.” § 13A-8-42, Ala.Code 1975. Section 13A-8-43, AIa.Code 1975, states:

“(a) A person commits the crime of robbery in the third degree if in the course of committing a theft he:
“(1) Uses force against the person of the owner or any person present with intent to overcome his physical resistance or physical power of resistance; or
“(2) Threatens the imminent use of force against the person of the owner or any person present with intent to compel acquiescence to the taking of or escaping with the property.”

Furthermore, § 13A-2-23, Code of Alabama 1975, provides for accomplice liability in a situation such as the one in this case. That section provides, in pertinent part:

“A person is legally accountable for the behavior of another constituting a criminal offense if, with the intent to promote or assist the commission of the offense:
“(2) He aids or abets such other person in committing the offense.”

See also, Wigfall v. State, 710 So.2d 931, 938 (Ala.Crim.App.1997) (“The phrase ‘aids and abets’ encompasses all assistance rendered, Moody v. State, 615 So.2d 126, 128 (Ala.Crim.App.1992), including serving as the “wheel man’/chauffeur for the defendant’s companions. See Browning v. State, 429 So.2d 653, 654 (Ala.Crim.App.1982); Webber v. State, 376 So.2d 1118, 1127 (Ala.Crim.App.), cert. denied, 376 So.2d 1129 (Ala.1979).”).

Initially, we note that second-degree robbery is not normally a lesser-included offense of first-degree robbery. See Lidge v. State, 419 So.2d 610 (Ala.Crim.App.), writ denied, 419 So.2d 616 (Ala.1982). However, if a defendant’s indictment for first-degree robbery includes language indicating that the defendant was aided in his or her conduct by another person — an essential element for second-degree robbery — then the indictment alleges a fact essential to contemplate second-degree robbery as a lesser-included offense of first-degree robbery. See Wright v. State, 902 So.2d 720 (Ala.Crim.App.2004). Here, Beemon’s indictment stated:

“[Beemon] whose name is otherwise unknown to the Grand Jury, did, in the course of committing a theft of lawful currency and/or coinage of the United States of America and/or other property, of some value, a better description of which is unknown to the Grand Jury, use force against the person of the owner or any person present, Lalita Patel and/or Mayank Patel and/or Shanashi Patel and/or Praful Patel, with intent to overcome their physical resistance or physical power of resistance, or threaten the imminent use of force against the person of the owner or any person present, Lalita Patel and/or Mayank Patel and/or Shanashi Patel and/or Praful Patel, with the intent to compel acquiescence to the taking of or escaping with the property, while the said Terrence Beemon, alias, and/or an accomplice was armed and/or represented himself to be armed with a deadly weapon or dangerous instrument, a gun, a better description of which is unknown to the Grand Jury, in violation of section 13A-8 — 41 of the Code of Alabama, against the peace and dignity of the State of Alabama.”

(C. 7.)(Emphasis added.) Because Beem-on’s indictment contained language concerning an accomplice, the indictment contemplated second-degree robbery as a lesser-included offense of first-degree robbery.

Additionally, Beemon appears to contend that he was entitled to a jury instruction on second- or third-degree robbery as lesser-included offenses of first-degree robbery on the grounds that he presented evidence indicating that although he knew that Cargill was participating in a robbery of the Patel residence, Beemon never left the vehicle while the robbery was taking place. Even if Beem-on served only as the “wheel man” to this robbery, however, Beemon could still be convicted of first-degree robbery as an accomplice. See, Wigfall, 710 So.2d at 938. Thus, to the extent that Beemon contends that he was entitled to the lesser-included instructions on account of his serving solely as a “wheel man,” that argument is not an accurate statement of law and entitles him to no relief.

In Ex parte Hannah, 527 So.2d 675 (Ala.1988), the Supreme Court determined that Hannah, the “wheel man” in a robbery, was not entitled to a charge on second-degree robbery as a lesser-included offense of first-degree robbery because the evidence established that his accomplice was armed with a gun during the commission of the robbery. The Supreme Court noted:

“In order for the petitioner to be convicted of robbery in the second degree, there must be evidence that the robbery was committed by two or more persons and that he did not have an intent to commit the armed robbery or knowledge that an accomplice was going to do so. No evidence was presented that would indicate that the petitioner was guilty of robbery in the second degree.”

527 So.2d at 677. Thus, pursuant to Hannah, in order for a “wheel man” accomplice to be entitled to a jury instruction on second-degree robbery as a lesser-included offense of first-degree robbery, that defendant’s “reasonable theory” of his or her defense must tend to demonstrate either (1) that his codefendant or codefendants did not carry out an armed robbery, or (2) that, if his codefendant or codefendants carried out an armed robbery, the wheel-man accomplice presented evidence tending to show that he did not have the intent to commit the armed robbery or that he did not have the knowledge that an accomplice was going to commit an armed robbery.

A.

Under the first prong of Hannah, we note that the evidence presented by Beemon did not promote a reasonable theory that the crime that took place inside the Patel household was not a first-degree robbery. In Petway v. State, 690 So.2d 531 (Ala.Crim.App.1996), overruled on other grounds by Wright v. State, 902 So.2d 720 (Ala.Crim.App.2004), this Court rejected Petway’s claim that the trial court erred in failing to give a jury instruction on second-degree robbery. We explained:

“The evidence was uncontroverted that a shotgun was used in the course of the robbery. Based on the evidence presented by the State, the appellant would be criminally liable for Prosser’s use of the shotgun in carrying out the robbery. Because the appellant would be criminally liable for the acts of Pros-ser, his accomplice, he would be guilty of robbery in the first degree and nothing less.
“It is true, as the appellant contends, that ‘if a defendant asks for a jury charge on a lesser included offense, he is entitled to such a charge if there is any rational basis or reasonable theory that would support a conviction on the lesser offense.’ Ex parte McCall, 594 So.2d 628, 629 (Ala.1991). Specifically, the appellant asserts that, based on the Court’s holding in McCall, the trial court should have given the second degree robbery charge because there existed a rational basis or reasonable theory to support the contention that the appellant did not use a weapon in the commission of the crime.
“In McCall, there was conflicting testimony as to whether a gun or other deadly instrument was used in the robbery. In fact, the Court held that there was ‘ample evidence from which to find a rational basis or reasonable theory that no dangerous weapon was used.’ 594 So.2d at 630. However, in the present case, the evidence was uncontrovert-ed that a deadly weapon was used in the commission of the crime. Because the appellant is legally accountable for the acts of his accomplice, the fact that the appellant did not actually hold the gun during the commission of the crime is irrelevant.
“For these reasons, the appellant was either guilty of the crime of robbery in the first degree or was not guilty of any crime at all. Therefore, we hold that the appellant was not entitled to a jury instruction on robbery in the second degree.”

690 So.2d at 534.

Here, it is readily apparent that the crime committed in the Patel residence qualified as a first-degree robbery and nothing else. The evidence was uncontro-verted that handguns and stun guns were used during the robbery of the Patel household. Both Praful and Mayank Patel testified that each robber was armed with a pistol or a stun gun. “The presence of a gun elevates third degree robbery to first degree robbery.” Love v. State, 677 So.2d 1272, 1274 (Ala.Crim.App.1996), quoting Ex parte Curry, 471 So.2d 476, 478 (Ala.1984). Beemon presented no evidence refuting the State’s allegation that deadly weapons were used in the -commission of the robbery. Thus, Beemon is entitled to no relief under the first prong of Hannah. See also Love, 677 So.2d at 1274 (“Because of the overwhelming evidence in this case, the trial court did not commit reversible error in giving jury instructions for robbery in the first degree only and denying appellant’s requested jury instructions.”).

B.

Under the second prong of Hannah, we must determine whether Beemon presented a reasonable theory either that he did not have the intent to commit an armed robbery or that he did not have the knowledge that any accomplices intended to do so. At trial, the only evidence presented by Beemon to support a claim that he lacked the intent to commit armed robbery, or that he did not have the knowledge that an accomplice intended to commit armed robbery, was Beemon’s self-serving testimony that he did not participate in the robbery nor did he see a weapon on Cargill as Cargill got out of the vehicle to go into the Patel house.

A survey of our caselaw reveals that this Court and the Alabama Supreme Court have applied a case-by-case approach in determining whether a defendant presented a reasonable theory of defense through his own testimony sufficient to warrant jury instructions on requested lesser-included offenses. Alabama courts have repeatedly stated that the trial court can refuse to charge on a lesser-included offense only when “(1) it is clear to the judicial mind that there is no evidence tending to bring the offense within the definition of the lesser offense, or (2) the requested charge would have a tendency to mislead or confuse the jury.” See, e.g., Williams, 675 So.2d at 540-41, quoting Anderson, 507 So.2d at 582; Ex parte Stork, 475 So.2d 623 (Ala.1985), quoting Ex parte Chavers, 361 So.2d 1106 (Ala.1978). Although neither this Court nor the Alabama Supreme Court has explicitly defined what constitutes a reasonable theory of defense or has developed a test by which other courts can weigh the reasonableness of a theory, we can see two overarching considerations spanning cases addressing this issue: (1) how does the defendant’s theory comport with the evidence presented by both the defendant and the State at trial, and (2) how would the jury reach a hypothetical verdict in which it convicted the defendant of a lesser-included offense.

1. The self-serving statement and other evidence.

In Harbin v. State, 14 So.3d 898 (Ala.Crim.App.2008), this Court discussed situations in which a self-serving statement did not present a “reasonable or rational theory of the evidence” when viewed in the context of the other evidence presented at trial and, thus, did not entitle a defendant to lesser-included jury instructions. We explained:

“Harbin also contends that the trial court erred in refusing to instruct the jury on criminally negligent homicide as a lesser-included offense of murder. He maintains that there was evidence — specifically, his two statements to police in which he claimed that he forgot that the knife was in his hand when he stabbed Harris — to support the charge.
“In this case, there was no reasonable or rational theory from the evidence to support a charge on criminally negligent homicide. The only evidence supporting such a charge, as Harbin concedes, is his own statements to police in which he claimed that he had forgotten that the knife was in his hand when he stabbed Harris. However, in Ex parte McWhorter, 781 So.2d 330 (Ala.2000), the Alabama Supreme Court recognized that, in certain situations, an accused’s self-serving statements may not be sufficient, alone, to warrant an instruction on a lesser-included offense. In Ex parte McWhorter, the appellant had given a statement to the police in which he initially stated that he was so intoxicated at the time of the crime that he did not remember it. However, as the interview with police continued, the appellant began to remember how the crime was committed, and he confessed providing great detail. On appeal he argued that the trial court had erred in not instructing the jury on a number of lesser-included offenses, including felony murder, intentional murder, and manslaughter, based on his statement to the police that he had been intoxicated at the time of the crime. In finding that the trial court had not erred in not instructing the jury on the lesser-included offenses, the Supreme Court stated:
“ ‘The evidence offered by McWhorter as to his alleged intoxication was glaringly inconsistent with his own statement giving detailed descriptions of the events occurring at the crime scene. No evidence substantiated his claim to have been intoxicated at the time of the killing, and, indeed, the other evidence as to his condition at the time of the crime was totally consistent with the proposition that he was sober. We hold that McWhorter’s self-serving statements suggesting he was intoxicated at the time of the killing, statements made in his internally inconsistent interview by Detective Maze, is, as a matter of law, insufficient to satisfy the rigorous standard of showing that the intoxication relied upon to negate the specific intent required for a murder conviction amounted to insanity. ’
“Ex parte McWhorter, 781 So.2d at 342 (emphasis added).
“Subsequently, in Clark [v. State, 896 So.2d 584, 641 (Ala.Crim.App.2000) (opinion on return to remand) ], supra, this Court, relying on Ex parte McWhorter, held that the trial court had not erred in not instructing the jury on heat-of-passion manslaughter when the only evidence supporting such an instruction was the appellant’s own statement to police. We explained:
“‘Although McWhorter did not involve the same factual situation as that presented here, we find the Alabama Supreme Court’s opinion in McWhorter to be persuasive in our resolution of this issue. In this case, as in McWhorter, the only evidence supporting a charge on heat-of-passion manslaughter was Clark’s self-serving statement to the police. Although that statement was not internally inconsistent, as was the statement in McWhorter, it was directly refuted by undisputed physical evidence from the crime scene. When police officers arrived at the crime scene, the stick that Clark claimed Ewing had wielded as he approached Clark in front of the checkout counter was found propped up on end against the wall in a corner behind the counter. Under Clark’s theory of the case, either he or a stabbed and bleeding Ewing must have taken the time at some point either during the struggle or after the struggle to walk behind the counter and place the stick on end up against the wall. This theory is simply not reasonable.
“ “We will not find plain error in a trial court’s refusal to instruct a jury on a lesser-included offense where the only evidence tending to bring the crime within the definition of that lesser-included offense is a defendant’s self-serving statement and where that statement is directly refuted by undisputed physical evidence. We hold, therefore, that under the circumstances in this case, it was not plain error for the trial court not to instruct the jury on heat-of-passion manslaughter as a lesser-included offense of capital murder.’
“Clark, 896 So.2d at 642.
“Here, as in Ex parte McWhorter and Clark, the two statements Harbin made to police were the only support for a charge on criminally negligent homicide. Although Harbin consistently asserted in both statements that he had forgotten that the knife was in his hand when he stabbed Harris, another crucial part of his statements contained a glaring inconsistency — in his first statement, Harbin admitted that he had pulled the knife out in response to the fight, while in his second statement Harbin stated that he already had the knife out and was cleaning his fingernails in the parking lot of the gas station when the fight broke out. In addition, the undisputed evidence indicated that the knife used by Harbin was over seven inches long and that Harris suffered from not one, but three, separate stab wounds. Under Harbin’s theory of the case then, he stabbed Harris three separate times while holding a knife over seven inches long without knowing it. This theory is simply not reasonable.”

14 So.3d at 909-12.

From McWhorter, Clark, and Harbin, we are able to glean three important factors that must be considered when determining whether a defendant’s self-serving statement established a reasonable theory of defense sufficient to entitle the defendant to requested lesser-included jury instructions. First, we must consider whether other evidence presented at trial substantiated the claim presented by the defendant’s self-serving statement. See McWhorter, 781 So.2d at 342 (McWhorter’s theory that he was intoxicated was unreasonable based, in part, upon the fact that no evidence presented at trial corroborated this claim). Second, we must consider whether the defendant’s contention is directly refuted by undisputed physical evidence. See, e.g., id. (“the other evidence as to [McWhorter’s] condition at the time of the crime was totally consistent with the proposition that he was sober”); Clark, 896 So.2d at 642 (“We will not find plain error in a trial court’s refusal to instruct a jury on a lesser-included offense where the only evidence tending to bring the crime within the definition is a defendant’s self-serving statement and where that statement is directly refuted by undisputed physical evidence.”). Finally, we must consider whether the defendant’s contention is implausible or absurd. See Harbin, 14 So.3d at 912 (“Under Harbin’s theory of the case then, he stabbed Harris three separate times while holding a knife over seven inches long without knowing it. This theory is simply not reasonable.”). Although no single factor is dispositive in determining the reasonableness of a defense theory, they provide useful guideposts in reviewing whether the trial court’s decision not to give requested jury instructions on lesser-included offenses was justified given the specific evidence presented at trial by both the State and the defendant.

Here, when we apply these considerations to Beemon’s self-serving testimony, it is apparent that Beemon’s theory of the case is an unreasonable one, given the evidence presented at trial. Beemon presented no corroborating evidence tending to show that he served only as the wheel man for the armed robbery or to support his contention that he remained in his vehicle during the robbery. Beemon’s claim was refuted by Lisa Boone’s testimony that she saw Beemon’s vehicle during the time the armed robbery took place, but did not see anyone inside the car. Furthermore, Beemon claims that he was in control of his car on the night of the armed robbery and that no one else drove the vehicle, but he also claimed that he had never before seen the gloves covered in Praful Patel’s blood recovered from the floorboard underneath the driver’s seat in his vehicle. Beemon’s theory with respect to the gloves linking him to the armed robbery amounts to nothing more than a claim of ignorance. This is patently unreasonable.

We cannot say that the trial court erred in determining that Beemon’s self-serving statement was not sufficient as a matter of law to create a reasonable theory of the evidence when considered in the context of the other evidence presented at trial.

2. The hypothetical lesser-included convictions.

In determining whether a defendant has presented a reasonable theory of the evidence, our courts have hypothesized as to what specific evidence presented by both parties a jury would have to piece together in order to convict a defendant on a lesser-included offense. In situations where a hypothetical conviction on a lesser-included offense would have required the jury to unreasonably piece together the facts presented, our courts have held that the defense theory is unreasonable and insufficient to establish that the defendant was entitled to the lesser-included instruction. In Warren, the Supreme Court held that the defendant was not entitled to a jury instruction on third-degree robbery as a lesser-included offense of first-degree robbery on the ground that the jury’s verdict would require an unreasonable assimilation of the facts presented. The Court explained:

“In Ex parte Hannah, 527 So.2d 675, 677 (Ala.1988), this Court stated:
“ ‘As [Chavers v. State, 361 So.2d 1106 (Ala.1978),] holds, a court may properly refuse to charge on lesser included offenses when it is clear to the judicial mind “that there is no evidence tending to bring the offense within the definition of the lesser offense.” ’
“In Ex parte Hannah, this Court found that the defendant presented evidence at trial denying that a robbery of any kind had occurred and that in order for the jury to reach the conclusion that the lesser offense of robbery in the second degree had occurred, it would have had to presume that witnesses for both the petitioner and for the prosecution were lying. 527 So.2d at 677.
“ ‘It logically follows, we think, that where the evidence permits no reasonable conclusion other than that defendant is guilty of robbery in the first degree as expressly charged or not guilty of any offense whatever, charges as to robbery in the second or robbery in the third degree should not be given. The trial court was correct in limiting its oral charge accordingly.’
“Richburg v. State, 416 So.2d 1079, 1082 (Ala.Crim.App.1982).
“If Warren’s entire testimony was to be believed, then he would not be guilty of any kind of robbery because he neither had a weapon nor made a threat. The only way the jury could convict Warren of third-degree robbery was if the jury believed that both Knox and Warren had lied and then cobble together various elements of their contrasting testimony to reach a compromise verdict. In other words, a conviction for third-degree robbery would require the jury to believe the victim’s testimony that Warren threatened her and disbelieve his testimony that he did not threaten her, and to disbelieve her testimony that he had an anchor and believe his testimony that he did not. This very closely resembles the scenario in Ex parte Hannah.
“An instruction on third-degree robbery was not required under the facts here. The trial court did not err when it failed to instruct the jury on the lesser-included offense of robbery in the third degree.”

35 So.3d at 642-43.

Likewise, this Court has recognized that a defendant’s theory of defense is unreasonable if it requires the jury to unreasonably piece together facts sufficient to support a conviction for the lesser-included offense and calls for the jury to speculate as to what happened. In Boyd v. State, 699 So.2d 967 (Ala.Crim.App.1997), this Court explained:

“Here, the appellant completely denied any sexual contact (as that term is defined in § 13A-6-60(3), Ala.Code 1975) with the victim and claimed that he merely masturbated in her presence; his position is inconsistent with his request for instructions on first degree sexual abuse, § 13A-6-66(a), Ala.Code 1975. In addition to testifying that the appellant pulled off her shorts and underwear, that he unbuttoned and unzipped his pants, and that she saw his pubic hair before she lost consciousness, the victim testified that, after the attack, there was wetness and soreness in her vaginal area, that she felt that the appellant had penetrated her, and that she ‘felt as though something had been inside me like I do after I have sex.’ (R. 152-53.) In order for the jury to reach the conclusion that the appellant was guilty only of sexual abuse as a lesser included offense of rape in the first degree, it would have had to conclude both that the appellant was lying and that the victim’s testimony should be discounted insofar as she stated that she felt she had been penetrated in a manner consistent with sexual intercourse. The jury would then have to somehow infer and speculate that what really happened was that the appellant committed some sort of sexual contact that caused the victim to experience the same sensation that she would have had had she been penetrated in a manner consistent with sexual intercourse, although no sexual intercourse was involved. While not impossible, such a scenario calls for substantial speculation and would not be derived from any evidence that was presented. We agree with the state’s argument that an instruction on sexual abuse would have been inappropriate because there was no evidence of sexual contact ‘other than that contained within the penetration which by definition made the appellant’s action rape in the first degree.’ (State’s brief at 32.) An instruction on sexual abuse in the first degree would merely have encouraged the jury to reach a ‘compromise’ verdict based on speculation. ‘Since the appellant denied that “any act” between the parties occurred and since there was no “reasonable theory” presented at trial to support a lesser offense, the trial court had no obligation to charge on a lesser offense.’ Kirksey v. State, 475 So.2d 646, 648 (Ala.Cr.App.1985).”

699 So.2d at 972-73. Similarly, in Ingram v. State, 570 So.2d 835 (Ala.Crim.App.1990), this Court explained:

“In this case, we find that the evidence simply does not support a verdict of sexual abuse in the second degree. In order for the jury to reach the conclusion that the appellant was guilty only of sexual abuse in the second degree as a lesser included offense, it would have to conclude that both the victim and the appellant were lying. It would then have to somehow infer and speculate that what really happened was that the appellant had sexually abused the victim but that no forcible compulsion was involved. We find no evidence to support such a conclusion. An instruction on the offense of sexual abuse in the second degree would only have encouraged the jury to reach a ‘compromise’ verdict based on speculation. ‘Since the appellant denied that “any act” between the parties occurred and since there was no “reasonable theory” presented at trial to support a lesser offense, the trial court had no obligation to charge on a lesser offense.’ Kirksey v. State, 475 So.2d 646, 648 (Ala.Cr.App.1985). See also Ex parte Hannah, 527 So.2d at 676-677.”

570 So.2d at 838.

Here, in order for the jury to convict Beemon of either second- or third-degree robbery, it would have to believe his testimony that he knew about the robbery and that he was willfully driving Cargill to participate in the robbery. The jury would also have to believe Beemon’s testimony that he never left the vehicle during the course of the robbery and disbelieve Boone’s testimony that she did not see anyone in Beemon’s vehicle at the time the armed robbery was taking place. Because Beemon did not testify that two or more robbers were actually present in the house, in order to convict Beemon of second-degree robbery, the jury would have to believe the victims’ testimony that two or more robbers participated in the actual robbery of the house. Additionally, if the jury were to convict Beemon of third-degree robbery, it would have to disregard the victims’ testimony that four robbers perpetrated the armed robbery of the Patel household. See Jackson v. State, 969 So.2d 930 (Ala.Crim.App.2007), quoting Fantroy v. State, 560 So.2d 1143 (Ala.Crim.App.1989) (a wheel man to a robbery with only one accomplice could be convicted only of third-degree robbery, not second-degree robbery, because he was not actually present during the robbery, and second-degree robbery under § 13A-8-42 requires that two robbers be present). This would be a completely unreasonable verdict given the evidence presented at trial.

Furthermore, the jury would have to believe either (1) Beemon’s testimony that he did not know an armed robbery was taking place inside the house, (2) Beemon’s testimony that he did not know if Cargill was armed when he left his vehicle to participate in the robbery, or (3) that the victims’ testimony that all the robbers were armed with either a pistol or stun-gun was false. Finally, the jury would essentially have to disregard the glove found in Beemon’s car, which was covered in blood matching the genetic profile of Praful Patel and containing on the inside DNA material matching Beemon’s genetic profile. Even though Praful Patel testified that his assailant, as well as the other robbers, wore gloves during the armed robbery, the jury would have to conclude that the glove recovered from Beemon’s vehicle was not his and would have to believe Beemon’s testimony that he did not know how that glove ended up on the floorboard of his vehicle under the driver’s seat or would have to speculate as to how the glove ended up under Beemon’s seat without his knowing, even though Beemon had testified that he was in control of the vehicle at all times on the night in question. This is simply an unreasonable assimilation of the facts presented.

Accordingly, a hypothetical conviction for either second- or third-degree robbery would require the jury to believe and disbelieve bits and pieces of both Beemon’s testimony and the evidence presented by the State at trial. A conviction for either lesser-ineluded offense would necessarily require the jury to disregard — or to find unpersuasive — unrefuted physical evidence presented by the State. Similarly, the jury would have to disbelieve testimony by the State’s witnesses while accepting as truth Beemon’s trial testimony even though he admitted on the stand that he had lied several times already to investigators regarding the nature of his involvement with the armed robbery. Thus, any conviction for a lesser-ineluded offense would have necessarily required the jury to piece together a verdict in a wholly irrational and speculative manner.

The only evidence tending to bring the crime within the definition of second- or third-degree robbery was Beemon’s self-serving testimony, which was strongly refuted by overwhelming physical evidence presented by the State. Based upon the contradictory nature of Beemon’s testimony, the overwhelming evidence presented by the State regarding the nature of the crime and Beemon’s involvement, and Beemon’s admissions regarding his involvement with the robbery of the Patel household, the trial court did not abuse its discretion in determining that Beemon presented an unreasonable theory of defense. Accordingly, the trial court did not commit reversible error by denying Beem-on’s requested jury instructions on the lesser-ineluded offenses of second-degree and third-degree robbery.

II.

Beemon also argues that the trial court erred in allowing the State to question Beemon about a prior conviction for third-degree assault. Beemon contends that the State’s introduction of evidence concerning this misdemeanor conviction was improper impeachment evidence under Rule 609, Ala. R. Evid., and, thus, constituted reversible error.

At trial, Beemon testified in his own defense. Early in Beemon’s testimony, counsel asked Beemon how far he went in school, to which Beemon indicated that he had completed the 11th grade. During cross-examination, the following exchange took place:

“[The State]: Okay. Now, let me ask you this: You testified a minute ago that you completed school up to the 11th grade. How come you didn’t finish up?
“[Beemon]: I had a job, and they said it was best to go get my GED because I was missing too many classes.
“[The State]: Wait. Are you saying the principal told you you shouldn’t finish school?
“[Beemon]: Because of my absences.
“[The State]: Well, why were you absent so much?
“[Beemon]: Job.
“[The State]: Okay. Now, what’s the time frame we’re talking about? What was your senior year toes [sic] supposed to have been?
“[Beemon]: 2008, sir.
“[The State]: 2008? Starting in 2008 or going to end in 2008?
“[Beemon]: End of 2008 I would have been graduated.
“[The State]: End of 2008?
“[Beemon]: Yes, sir.
“[The State]: So on August 31st of 2007, you were supposed to be in the 12th grade theoretically?
“[Beemon]: Yes, sir
“[The State]: What were you doing that day?
“[Beemon]: I was—
“[Defense counsel]: May we approach, Your Honor? Objection. May we approach?
“[Outside the presence of the jury] I object. He is trying to get into a misdemeanor that would not be admissible under the rules.
“[The State]: The only reason he was out of school isn’t because of his job and his work. In fact, he was in jail on an assault on a police officer that same day.
“[Defense counsel]: That’s a misdemeanor. That is not admissible under the rules.
“[The State]: I didn’t ask him about the school. She’s the one that brought it up. She opened the door.
“[Defense counsel]: Asking how far he went in school does not open the door to—
“THE COURT: Of course you asked—
“[Defense counsel]: I simply said how far did you go in school. He said 11th grade. I didn’t ask about a specific day in school. It’s just a qualifying, like where do you live.
“THE COURT: Overruled.”

(R. 292-93.) The State proceeded to elicit testimony from Beemon in which he admitted that he was in jail on third-degree-assault charges at the time he would have otherwise been starting his senior year of high school.

“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), aff'd, 808 So.2d 1215 (Ala.2001). “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). This is equally true with regard to the admission of collateral-acts evidence. See Davis v. State, 740 So.2d 1115, 1130 (Ala.Crim.App.1998).

Under Rule 609, Ala. R. Evid., the State may introduce evidence of prior felony convictions, but not misdemeanor convictions, in order to impeach the credibility of the accused at trial. The State argued at trial and on appeal that defense counsel’s asking Beemon on direct examination how far he went in school and Beemon’s testifying that he only completed school through the 11th grade, opened the door to questioning regarding why Beemon completed only the 11th grade.

The questions that allegedly opened the door for the State were nothing more than introductory questions about the witness. Counsel asked Beemon how far he went in school to which he replied, “eleventh grade.” (R. 270.) This was the extent to which direct examination covered Beemon and school. It would be unreasonable to conclude this one question and answer opened the door and allowed the State to probe into why Beemon stopped attending school after the 11th grade. Furthermore, although Beemon testified on cross-examination that he did not finish school because of work and because he was missing too much school, the issue was blatantly interjected into the trial by the prosecution. The State cannot open the door to otherwise inadmissible evidence based upon its own line of examination. See Ex parte Ray, 52 So.3d 555 (Ala.2009) (holding the State could not introduce evidence of an otherwise inadmissible juvenile conviction when the door was allegedly opened only pursuant to the State’s cross-examination of the defendant). Because Beemon did not “open the door” to testimony regarding his third-degree-assault conviction, the trial court abused its discretion in allowing the State to introduce evidence of that conviction.

Nevertheless, we conclude that the admission of evidence of the prior conviction, although error, was harmless error. The harmless-error rule provides, in pertinent part:

“No judgment may be reversed or set aside ... on the ground of ... improper admission or rejection of evidence, ... unless in the opinion of the court to which the appeal is taken or application is made, after an examination of the entire cause, it should appear that the error complained of has probably injuriously affected substantial rights of the parties.”

Rule 45, Ala. R.App. P.

In Chapman v. California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967), the United States Supreme Court held that before the violation of certain constitutional rights can be held to be harmless, the appellate court must be able to declare a belief that it was harmless beyond a reasonable doubt. In Ex parte Crymes, 630 So.2d 125 (Ala.1993), the Alabama Supreme Court explained:

“In determining whether the admission of improper testimony is reversible error, this Court has stated that the reviewing court must determine whether the ‘improper admission of the evidence ... might have adversely affected the defendant’s right to a fair trial,’ and before the. reviewing court can affirm a judgment based upon the ‘harmless error’ rule, that court must find conclusively that the trial court’s error did not affect the outcome of the trial or otherwise prejudice a substantial right of the defendant.”

630 So.2d at 126. See also Ex parte Greathouse, 624 So.2d 208, 210 (Ala.1993) (holding that the proper harmless-error inquiry asks, absent the improperly introduced evidence, “is it clear beyond reasonable doubt that the jury would have returned a verdict of guilty”).

Although the admission of the testimony of the prior conviction for third-degree assault was improperly admitted into evidence, we cannot say that Beemon was prejudiced to the point of calling into question the validity of his conviction. Beem-on’s theory of defense was nothing more than a claim that he was the “wheel man” in the armed robbery and not an active participant. We have reviewed the record, and it is clear beyond a reasonable doubt that the jury would have returned a guilty verdict even without the evidence of the prior conviction. The State presented uncontroverted evidence that an armed robbery took place inside the Patel residence. Praful Patel testified that he was pistol-whipped by one of the robbers and that all the robbers were wearing gloves while they were committing. the armed robbery. Investigators recovered a bloody glove from the floorboard under the driver’s seat in Beemon’s vehicle. The DNA profile of the blood matched Praful Patel, and the profile of the DNA matter recovered from inside the glove matched Beem-on’s DNA profile. Beemon admitted that he was parked outside of the Patel residence at the time of the robbery. He also admitted that he knew a robbery was going on at the Patel household and that he knew Cargill was going to participate in the robbery once they arrived at the residence. Although he claimed he never got out of his vehicle, Lisa Boone testified that she saw the vehicle belonging to Beemon parked on Towne Lake Place during the time the armed robbery occurred, but she testified that she did not see anyone inside the vehicle.

Given the evidence presented at trial, the circuit court’s erroneous admission of testimony regarding the prior altercation did not affect the outcome of the trial or otherwise prejudice a substantial right of Beemon. See, Crymes, 630 So.2d at 126. Moreover, based on our review of the record, it is “clear beyond a reasonable doubt that the jury would have returned a verdict of guilty” regardless of the trial court’s erroneous admission of evidence of Beemon’s conviction for third-degree assault. Greathouse, 624 So.2d at 210. See also, Chapman, supra. Therefore, any error on the part of the trial court was harmless, and no basis for reversal exists as to this claim.

Based on the foregoing, the judgment of the trial court is due to be affirmed.

AFFIRMED.

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

      . Beemon was acquitted on four counts of second-degree kidnapping.


author: VAN NORTWICK, J.

text:
    Phillip Anthony BRAY, Appellant, v. STATE of Florida, Appellee.
    No. 1D10-2539.
    District Court of Appeal of Florida, First District.
    May 13, 2011.
    Rehearing Denied Dec. 7, 2011.
    Nancy A. Daniels, Public Defender, and Archie F. Gardner, Jr., Assistant Public Defender, Tallahassee, for Appellant.
    Pamela Jo Bondi, Attorney General, Christine Ann Guard, Assistant Attorney General, and Angela Renee Hensel, Certified Legal Intern, Tallahassee, for Appel-lee.
   VAN NORTWICK, J.

Phillip Anthony Bray challenges the revocation of his community control. Because only hearsay evidence was admitted as proof of his violation of community control, we reverse the revocation order and reinstate Bray to community control supervision.

Upon the request of his community control officer, Bray submitted a urine sample. A test conducted by the officer indicated that appellant used cocaine. The urine sample was thereafter sent to an independent laboratory, which later issued a written report indicating that the urine tested positive for cocaine. An affidavit alleging a violation of the conditions of community control was thereafter filed, and the matter proceeded to a hearing. The use of cocaine was the only violation alleged.

Bray admitted that he used an over-the-counter medication for a toothache, but denied using cocaine. He objected to the admission of the laboratory report on the ground that no one knowledgeable of the procedures of the laboratory was present to testify. The trial court admitted the report over the objection of the defense. Further, although it received further argument from the defense that the testimony of two community control officers that the urinalysis conducted by them produced a positive result was hearsay testimony, the trial court admitted this evidence as well. Revocation was thereafter ordered on the basis of this laboratory report and the testimony of the community control officers.

While hearsay evidence is admissible in a revocation proceeding, revocation may not be solely based on hearsay. Hogan v. State, 583 So.2d 426 (Fla. 1st DCA 1991); Legree v. State, 739 So.2d 616 (Fla. 1st DCA 1999). The laboratory report was hearsay. Hogan v. State; Forbes v. State, 38 So.3d 232 (Fla. 3d DCA 2010). Moreover, the testimony of the community control officers was hearsay. While both officers testified that they had conducted hundreds of urinalyses, neither testified as to any expertise as to narcotics or drug testing. Under such circumstances, their testimony was hearsay. See L.R. v. State, 557 So.2d 121 (Fla. 3d DCA 1990), and Weaver v. State, 543 So.2d 443 (Fla. 3d DCA 1989). Had the community control officers demonstrated some expertise in the matter, their testimony may have possibly survived a hearsay challenge. See Sinclair v. State, 995 So.2d 552 (Fla. 3d DCA 2008).

The case at bar is distinguishable from Branch v. State, 837 So.2d 568 (Fla. 4th DCA 2003), as there is no indication in that case that the probationer lodged a hearsay objection to the in-office test conducted by the probation officer. Of course, hearsay which is not subject to an objection is admissible and may be as probative as other non-hearsay evidence. See Tallahassee Furniture Co., Inc. v. Harrison, 583 So.2d 744, 754 (Fla. 1st DCA 1991).

The State also cites Isaac v. State, 971 So.2d 908 (Fla. 3d DCA 2007), but that case too fails to support affirmance here. In Isaac, a positive drug test was not the only basis for revoking probation. The Isaac court agreed that revocation cannot be based on hearsay exclusively. Id. at 909. Moreover, there is no indication in Isaac that a hearsay objection was made regarding the testimony of the probation officer that the test conducted by the officer revealed that the probation used a controlled substance.

For the above reasons, the order revoking Bray’s community control is REVERSED.

WEBSTER and CLARK, JJ., concur.


author: PER CURIAM.

text:
    The SALVATION ARMY SOUTHERN TERRITORY HEADQUARTERS and Chesterfield Services, Inc., Appellants, v. Misael LEON, Appellee.
    No. 1D11-1088.
    District Court of Appeal of Florida, First District.
    May 13, 2011.
    Kevin M. Hammer and Warren K. Spon-sler of Sponsler, Bennett, Jacobs & Adams, P.A., Tampa, for Appellants.
    John P. Brooks of the Law Office of Lori Pearson-Wise, P.A., Maitland, for Ap-pellee.
   PER CURIAM.

Upon review of Appellee’s Motion to Dismiss Appeal and Appellants’ Response to Motion to Dismiss Appeal, we DENY the motion to dismiss. This appeal shall proceed as one from a final order awarding a statutory advance payment of $2,000.00. See Workers of Fla. v. Williams, 743 So.2d 609 (Fla. 1st DCA 1999).

WOLF, THOMAS, and MARSTILLER, JJ., concur.


author: SCHWARTZ, Senior Judge. SHEPHERD, J.,

text:
    Abraham Israel VALQUI, Appellant, v. Lily Marie RODRIGUEZ, Appellee.
    No. 3D11-2063.
    District Court of Appeal of Florida, Third District.
    Aug. 22, 2011.
    Brenda Bernstein Shapiro, Miami, for appellant.
    Manuel R. Lopez, for appellee.
    Before WELLS, C.J., SHEPHERD, J„ and SCHWARTZ, Senior Judge.
   SCHWARTZ, Senior Judge.

The father of a ten-year old appeals from an order granting her mother’s petition to relocate her from Miami, where the father lives, to California. Far from embodying the abuse of discretion which would be required for reversal of an order like this one entered pursuant to Section 61.13001, Florida Statutes (2010), see Muller v. Muller, 964 So.2d 732 (Fla. 3d DCA 2007) (abuse of discretion standard applies to orders of relocation); Dorta-Duque v. Dorta-Duque, 791 So.2d 1148 (Fla. 3d DCA 2001) (same), we find the order below, which is attached, a model of form, content, and judicial conscientiousness. It is, therefore

Affirmed.

APPENDIX

IN THE CIRCUIT COURT OF THE 11TH JUDICIAL CIRCUIT IN AND FOR DADE COUNTY, FLORIDA

FAMILY DIVISION

IN RE: Abraham Israel Valqui, Petitioner/Father,

and

Lily Marie Rodriguez, Respondent/Mother.

_/

Case No. 2003-15908 FC 33

ORDER ON MOTHER’S REQUEST TO RELOCATE WITH THE MINOR CHILD

THIS MATTER was heard by the Court on August 3, 2011. After considering the credible evidence and testimony and argument of counsel, it is hereby ORDERED as follows:

This is a paternity action. There is one minor child: Desiree Marie Valqui, born June 6, 2001. A Final Judgment of Paternity was entered on August 5, 2005. The Judgment sets forth a time sharing plan.

The Mother has filed a Petition to Relocate to Concord, California, and the father objects.

The Court has conducted a final hearing on this date on the issue of relocation and heard from the Guardian ad Litem Patrick Vilar, who testified that he opposes relocation but admits that the parents are excellent caring parents who are both very involved in the child’s upbringing. He also points out that Dr. Cristina Grand recommends that it would be better for the minor child to remain in Miami, Florida. The Doctor, however, was not called as a witness as it is not clear what the recommendation is based on. The child has expressed no preference with regards to relocating.

The Court also heard from the Lily Marie Rodriguez and Barry Bena Jr., who presently reside in Concord California, pursuant to his assignment in the Coast Guard. They reside in a nice two story home with plenty of accommodations for the entire family. The mother is not employed at this time and the parties have agreed that she will be a stay at home mother.

The relocation statute makes clear what steps a parent must take in order facilitate the relocation process. The parent with whom the child maintains a residence with has the duty to inform all other parties who are entitled to timesharing of his or her intentions to move if the move is more than 50 miles away from the other parent’s home residence and if the move will be for more than 60 consecutive days (permanent in nature). The statute also states that no presumption will arise in favor of or against a request to relocate with the child when the move will materially affect the current schedule of contact, access and timesharing with the non-relocating parent.

The initial burden of proof is on the parent wishing to relocate to prove by a preponderance of the evidence that relocation is in the best interest of the child. If that burden of proof is met, the burden shifts to the non-relocating parent to show by a preponderance of the evidence that the proposed relocation is not in the best interest of the child.

In reaching a decision regarding a proposed temporary or permanent relocation, the court shall evaluate all of the following factors:”

(a) The nature, quality, extent of involvement, and duration of the child’s relationship with the parent proposing to relocate with the child and with the non-relocating parent, other persons, siblings, half-siblings, and other significant persons in the child’s life.

The child has an excellent and extremely close relationship with the Mother. The child has shared the vast majority of time with the Mother since birth.[] The Mother has been the primary caretaker of the child since birth and has been involved in the day to day care and attention of the child, including doing homework and meeting her needs. The Mother will be the parent that takes the child to school and picks up after school every day. She will be the parent that takes the child to her medical checkups or any other social activity.

(b) The age and developmental stage of the child, the needs of the child, and the likely impact the relocation will have on the child’s physical, educational, and emotional development, taking into consideration any special needs of the child.

The child is ten (10) years of age and it appears that she is developing appropriately for her age. The child will be physically cared for by her Mother and will be living with her two siblings. Due to the child’s age and the family ties, the child will easily adjust to the new environment relatively quickly. The Father can communicate with the child via internet, web-cam and telephone. The child does have special needs but these needs can be addressed in the new environment.

(c)The feasibility of preserving the relationship between the non-relocating parent or other person and the child through substitute arrangements that take into consideration the logistics of contact, access, and time-sharing, as well as the financial circumstances of the parties; whether those factors are sufficient to foster a continuing meaningful relationship between the child and the non-relocating parent or other person; and the likelihood of compliance with the substitute arrangements by the relocating parent once he or she is out of the jurisdiction of the court.

The Mother believes that it is in the child’s best interest that Desiree maintain a good relationship with the Father. Although California is a far distance away from South Florida, the Mother believes that the child can spend extended periods of time with the Father during the Summer Winter breaks and holidays. The Mother does not believe that the relocation will sever the relationship because the child will be in contact with the Father telephonically, via the Web-Internet and available to visit with the Father during the Summer time and Winter breaks.

The Mother has offered to pay for all travel expenses for the child to visit the father in South Florida. The likelihood that the Mother will comply with the substitute arrangement is very high. The Mother has never denied the Father time sharing and understands that it is in the child’s best interest to have a good relationship with the Father.

(d) The child’s preference, taking into consideration the age and maturity of the child.

The child has expressed no preference with regards to relocation.

(e) Whether the relocation will enhance the general quality of life for both the parent seeking the relocation and the child, including, but not limited to, financial or emotional benefits or educational opportunities.

The relocation will enhance the general quality of life for the Mother in that if she will be able to be a stay at home mother and care for her children on a full time basis. She will not have to worry about living expenses. Her husband is capable of supporting the family with his income from the Coast Guard.

As to the Father, the relocation will not significantly affect his general quality of life beyond the loss of his time sharing with the child.

(f) The reasons of each parent or other person for seeking or opposing the relocation.

The Mother has a legitimate and well founded need to relocate.

The Father is opposing the relocation because he believes it would significantly reduce his time with the child, would interfere with Desiree’s relationship with his family. He also believes that the lengthy travel times (8-10 hours) for the flights and the time difference would make travel more onerous for Desiree.

(g) The current employment and economic circumstances of each parent or other person and whether or not the proposed relocation is necessary to improve the economic circumstances of the parent or other person seeking relocation of the child.

The parties need to relocate in order for the family to maintain gainful employment with the United States Coast Guard.

(h) That the relocation is sought in good faith and the extent to which the objecting parent has fulfilled his or her financial obligations to the parent or other person seeking relocation, including child support, spousal support, and marital property and marital property and marital debt obligations.

The Mother is seeking the relocation in good faith to enhance the quality of life for herself and her family.

(i) The career and other opportunities available to the obligating parent or objecting other person if the relocation occurs.

The Mother claims she will have a better life with the children in California and be available to the children on a full time basis while her husband works in the Coast Guard. The Father has worked for the same company for the past several years and his future prospects with the company are good.

(j) A history of substance abuse or domestic violence as defined in s. 741.28 or which meets the criteria of § 39.806(l)(d) by either parent, including a consideration of the severity of such conduct and the failure or success of any attempts at rehabilitation.

None.

(k) Any other factor affecting the best interest of the child or as set forth in s. 61.13.

All relevant factors have already been discussed, supra.

CONCLUSIONS

This is an extremely difficult decision for the Court and an extremely close call. Both parents clearly love the child and want to maintain a close relationship with the child. On balance, however, the court believes that the Mother has met her burden of establishing that the best interests of the child would be served by the relocation.

The motion for relocation is granted.

The Mother may relocate to California and the child must be enrolled in school there. The Mother must meet the following conditions:

1. Ensure that Desiree has a computer with an internet connection and a webcam and any necessary software to allow the child to communicate by webcam with the Father and her half-siblings set up in the home where she will be living.

If the Mother does not comply with this condition, the court will find such to be a substantial change in circumstances warranting a reconsideration of this relocation and will enter an order requiring her to return to Florida with the child.

The Father may also share time with the child in California at any other time as long as he gives the Mother one week notice and his time sharing does not cause her to miss school.

The Mother shall ensure that the internet and webcam continue to allow virtual contact between the child and Father on a daily basis. The child shall also have her own email address.

At least one time per week, at a day and time designated by the Father in writing, the Mother shall initiate a telephone call from the child to the Father at the Mother’s expense. The Father shall be able to telephone the child at least one time per day at his own expense.

The Mother shall be responsible for physically transporting the child to Florida for the Father’s time sharing. The Mother shall make the flight arrangements since she expressed the ability to get better fares through her family connections.

Each side will pay their respective attorney’s fees. The Court orders the Father to pay any outstanding fees due to the Guardian ad Litem.

DONE AND ORDERED in Miami-Dade County, Florida, this 4th day of August, 2011.

/signed,/

Reemberto Diaz

Circuit Court Judge

SHEPHERD, J.,

concurring.

I write only to state that one could not imagine a closer case on the facts. It is undisputed the child’s mother and father both are excellent parents. They are cooperative with each other and caring of the child. Although the mother is the primary residential parent under the August 2005 paternity order, the mother and father have exercised what appears to be a near seamless fífty-fífty time sharing arrangement, despite the fact each parent has married since they had the child together and each has a new family — the father another daughter, who is five-years old, and the mother two other children, ages ten months and three-years old. The child has a mild case of attention deficit hyperactivity disorder (ADHD), which affects her ability to study. The child’s stepmother spends early evenings helping or tutoring the child when she is at her father’s home. The child’s stepfather is equally accepting and supportive of the child when she is at the mother’s home. The child gets along well with her half-siblings. The mother and father both have extended families in South Florida, and both are involved in the child’s life. The child does well in school despite her ADHD, for which the school also provides some assistance.

All was going well in the child’s ten-year-old idyllic South Florida life until the United States Coast Guard issued standard travel orders last spring to the stepfather, an eight-year enlisted member of the Guard, transferring him from his station here in Miami-Dade County to the Alameda Naval Weapons Station near Concord, California. Having already extended his Miami-Dade County assignment once to remain in South Florida, the stepfather was required to honor the most recent orders. The child’s mother, the stepfather, and their two children are presently residing in a two-story home on the Alameda naval base. The family has a room awaiting the child in the house. The mother has moved for permission for the child to join them in Alameda. The mother has promised to fly the child back to Florida at her family’s expense for summer and other extended visitation with the father.

It is agreed that the homes — actually two homes — in which the child has resided in Miami-Dade County are equally commodious and comfortable. The child has had her own room in each house, and would continue to do so in the father’s home if the child does not relocate. The child has attended an “A” school in Miami-Dade County and will attend an “A” school a short distance from home in Concord. The ADHD, mild as it is, presumably is as treatable in California as it is in Florida. As the mother’s counsel conceded at oral argument, the only substantial distinguishing factor between the life the child will have in California as compared to Miami-Dade County, is that the mother and her husband have decided she will not be working in California. According to the mother, she, therefore, will be more available to the child, including working with the child on homework issues related to her ADHD.

Neither we nor the father have located a case in which an appellate court has reversed a relocation order on facts nearly this close. Vivian v. Schembari, 966 So.2d 492 (Fla. 4th DCA 2007), cited by the father, was an affirmance of an order denying a primary residential parent’s efforts to relocate when her new husband’s job was relocated. In Chapman v. Prevatt, 845 So.2d 976 (Fla. 4th DCA 2003), a case like the present one involving two equally good and devoted parents, both remarried and a military stepfather ordered to Colorado, the court of appeal reversed and remanded the relocation order, not because one location was better than the other, but rather because there was no evidence supporting the annual rotation of custody between both parents that had been ordered by the trial court. All other cases cited by the father, or which we have located, are cases involving clearly unequal parents. See, e.g., Orta v. Suarez, 66 So.3d 988 (Fla. 3d DCA 2011); Cecemski v. Cecemski, 954 So.2d 1227 (Fla. 2d DCA 2007).

On the standard of review we must apply, we are not at liberty to reverse the decision of the trial court unless the decision of the court was “arbitrary, fanciful, or unreasonable, which is another way of saying that discretion is abused only where no reasonable man would take the view adopted by the trial court.” Canakaris v. Canakaris, 382 So.2d 1197, 1203 (Fla.1980). Applying this standard of review, I believe we would be required to affirm the decision of the trial court whether the trial court had granted or denied the relocation. Only time will tell whether the decision of the trial court actually was in the best interests of the child. That is probably as good a definition of lack of abuse of discretion as is available to us in this case.

      . Inasmuch as the record shows almost completely equal parental timesharing with the child, this statement is incorrect. We do not consider the error material to our decision.


author: DAVIS, Judge.

text:
    Eligher Marquise BROOKS, Appellant, v. STATE of Florida, Appellee.
    No. 2D10-2058.
    District Court of Appeal of Florida, Second District.
    Oct. 19, 2011.
    James Marion Moorman, Public Defender, and Judith Ellis, Assistant Public Defender, Bartow, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Cerese Crawford Taylor, Assistant Attorney General, Tampa, for Ap-pellee.
   DAVIS, Judge.

Eligher Brooks challenges his conviction for attempted second-degree murder. For the reasons set forth in Houston v. State, — So.3d -, 2011 WL 3518029 (Fla. 2d DCA 2011), we reverse and remand for the trial court to hold a new trial. As we did in Houston, we certify conflict with the Fourth District’s opinion in Williams v. State, 40 So.3d 72 (Fla. 4th DCA 2010).

NORTHCUTT and BLACK, JJ., Concur.