author: PER CURIAM. WELCH, Judge,

text:
    Emmett Grady WALLACE v. STATE of Alabama.
    CR-10-1464.
    Court of Criminal Appeals of Alabama.
    Feb. 15, 2013.
    Certiorari Denied May 17, 2013 Alabama Supreme Court 1120624.

      Charles Williamson Barfoot and Benjamin E. Schoettker, Montgomery, for appellant.
    Luther Strange, atty. gen., and Andy Scott Poole, asst. atty. gen., for appellee.
   On Application for Rehearing

PER CURIAM.

The opinion issued on June 29, 2012, is hereby withdrawn, and the following opinion is substituted therefor.

The appellant, Emmett Grady Wallace, was convicted of the chemical endangerment of a child, a violation of § 26-15-3.2(A), AIa.Code 1975, and the unlawful manufacture of a controlled substance, i.e., methamphetamine, a violation of § 13A-12-218, Ala.Code 1975. He was sentenced to 10 years’ imprisonment on each conviction, the sentences to be served concurrently. This appeal followed.

I.

Wallace first argues that the State failed to present sufficient evidence to convict him of manufacturing methamphetamine because, he says, it failed to prove that the substance was in fact methamphetamine or that he possessed any precursor chemical as that term is defined in § 20-2-181, Ala.Code 1975. Specifically, he argues that the evidence was insufficient because the State failed to present the testimony of a forensic or scientific expert that the substance was methamphetamine or that he possessed a precursor chemical.

At the close of the State’s case, Wallace moved for a judgment of acquittal and argued: “In order to establish that you made meth, you have to have a scientific determination that meth was present at that place or on these substances. That requires the Department of Forensic Sciences to do some test or some other scientific agency to determine [the] presence of meth.” (R. 292.) The circuit court denied the motion. (R. 299.)

Section 13A-12-218, Ala.Code 1975, provides, in relevant part:

“(a) A person commits the crime of unlawful manufacture of a controlled substance in the first degree if he or she violates Section 13A-12-217 and two or more of the following conditions occurred in conjunction with that violation:
“(4) A clandestine laboratory operation was to take place or did take place within 500 feet of a residence, place of business, church, or school.
“(6) A clandestine laboratory operation was for the production of controlled substances listed in Schedule I or Schedule II.
“(7) A person under the age of 17 was present during the manufacturing process.”

Section 13A-12-217, Ala.Code 1975, provides, in pertinent part:

“(a) A person commits the crime of unlawful manufacture of a controlled substance in the second degree if, except as otherwise authorized in state or federal law, he or she does any of the following:
“(1) Manufactures a controlled substance enumerated in Schedule I to V, inclusive.
“(2) Possesses precursor substances as determined in Section 20-2-181, in any amount with the intent to unlawfully manufacture a controlled substance.”

Section 20 — 2—181 (d), Ala.Code 1975, addresses precursor chemicals and states:

“Until the Board of Pharmacy adopts a rule designating listed precursor chemicals, as required by subsection (a), the following chemicals or substances are hereby deemed listed precursor chemicals:
“(1) Acetic anhydride;
“(2) Anthranilic acid and its salts;
“(3) Benzyl cyanide;
“(4) Ephedrine, its salts, optical isomers, and salts of optical isomers;
“(5) Ergonovine and its salts;
“(6) Ergotamine and its salts;
“(7) Hydriodic acid;
“(8) Isosafrol;
“(9) Methylamine;
“(10) N-Acetylanthranilic acid and its salts;
“(11) Norpseudoephedrine, its salts, optical isomers, and salts of optical isomers;
“(12) Phenylacetic acid and its salts;
“(13) Phenylpropanolamine, its salts, optical isomers, and salts of optical isomers;
“(14) Piperidine and its salts;
“(15) Pseudoephedrine, its salts, optical isomers, and salts of optical isomers;
“(16) Safrole; and
“(17) 3,4-Methylenedioxyphenyl-2-propanone.”

The indictment charged Wallace as follows:

“Emmett Grady Wallace ... whose name is otherwise unknown to the Grand Jury, did knowingly manufacture a controlled substance in Schedules I to V, to-wit: METHAMPHETAMINE, and/or possess precursor substances, in any amount, with the intent to unlawfully manufacture a controlled substance, as determined in Section 20-2-181 of the Code of Alabama 1975, and in conjunction therewith, did also establish a clandestine laboratory operation which was to take place or did take place within 500 feet of a residence, place of business, church, or school, to-wit: a residence; and/or established a clandestine laboratory operation for the production of controlled substances, to-wit: METHAMPHETAMINE; and/or a person under the age of 17, [E.T.] was present during the manufacturing process, in violation of section 13A-12-218 of the Code of Alabama, against the peace and dignity of the State of Alabama.”

When reviewing whether the State has presented sufficient evidence to support a conviction, we keep in mind the following:

“[T]he evidence must be reviewed in the light most favorable to the prosecution. Cumbo v. State, 368 So.2d 871 (Ala.Cr.App.1978), cert. denied, 368 So.2d 877 (Ala.1979). Conflicting evidence presents a jury question not subject to review on appeal, provided the state’s evidence establishes a prima facie case. Gunn v. State, 387 So.2d 280 (Ala.Cr.App.), cert. denied, 387 So.2d 283 (Ala.1980). The trial court’s denial of a motion for a judgment of acquittal must be reviewed by determining whether there existed legal evidence before the jury, at the time the motion was made, from which the jury by fair inference could have found the appellant guilty. Thomas v. State, 363 So.2d 1020 (Ala.Cr.App.1978). In applying this standard, the appellate court will determine only if legal evidence was presented from which the jury could have found the defendant guilty beyond a reasonable doubt. Willis v. State, 447 So.2d 199 (Ala.Cr.App.1983); Thomas v. State. When the evidence raises questions of fact for the jury and such evidence, if believed, is sufficient to sustain a conviction, the denial of a motion for a judgment of acquittal by the trial court does not constitute error. Young v. State, 283 Ala. 676, 220 So.2d 843 (1969); Willis v. State. A verdict of conviction will not be set aside on the ground of insufficiency of the evidence unless, allowing all reasonable presumptions for its correctness, the preponderance of the evidence against the verdict is so decided as to clearly convince this court that it was wrong and unjust. Duncan v. State, 436 So.2d 883 (Ala.Cr.App.1983), cert. denied, 464 U.S. 1047, 104 S.Ct. 720, 79 L.Ed.2d 182 (1984); Johnson v. State, 378 So.2d 1164 (Ala.Cr.App.), cert. quashed, 378 So.2d 1173 (Ala.1979).”

Breckenridge v. State, 628 So.2d 1012, 1018-19 (Ala.Crim.App.1993).

“ ‘Circumstantial evidence is not inferior evidence, and it will be given the same weight as direct evidence, if it, along with the other evidence, is susceptible of a reasonable inference pointing unequivocally to the defendant’s guilt. Ward v. State, 557 So.2d 848 (Ala.Cr.App.1990). In reviewing a conviction based in whole or in part on circumstantial evidence, the test to be applied is whether the jury might reasonably find that the evidence excluded every reasonable hypothesis except that of guilt; not whether such evidence excludes every reasonable hypothesis but guilt, but whether a jury might reasonably so conclude. Cumbo v. State, 368 So.2d 871 (Ala.Cr.App.1978), cert. denied, 368 So.2d 877 (Ala.1979).’ ”

Lockhart v. State, 715 So.2d 895, 899 (Ala.Crim.App.1997), quoting Ward v. State, 610 So.2d 1190, 1191-92 (Ala.Crim.App.1992).

The State’s evidence tended to show that on June 30, 2010, Officer Christopher Owenby of the Eclectic Police Department was investigating a theft when he learned that property from the theft had been pawned at a pawnshop in Montgomery. Officer Owenby obtained the assistance of Sgt. C.J. Coughlin and Sgt. J.L. Walker, detectives with the Montgomery Police Department, to investigate the name and address on the pawn ticket. The pawn ticket had been signed by M.T. and listed a Plum Street address in Montgomery.

Officer Owenby testified that when the officers arrived at the Plum Street address, he went to the back of the house and approached an open window. Wallace was standing at the open window and Officer Owenby asked him to answer the door. The house was occupied by Wallace, M.T., and M.T.’s six-year old daughter, E.T. M.T. told police that the stolen property was no longer in the house, and she gave oral and written consent for the officers to search the residence.

Sgt. Coughlin testified that he found a box in a closet in a bedroom that M.T. said was occupied by her and Wallace. The box, he said, had smoke emanating from it. Inside the box was a duffel bag, and inside the duffel bag was a plastic drink bottle with fluid and metal strips in it. The substance, he said, was bubbling, and he believed that it was hazardous. At that time, Sgt. Coughlin testified, he followed protocol, cleared the house, and called the narcotics division. Sgt. Coughlin further testified that there was a thick white smoke throughout the house that had a chemical smell and that the child, E.T., was walking around the house.

Detective W.T. Grant of the Montgomery Police Department testified that Wallace made a statement to him in regard to what had happened at Plum Street. Wallace told him that he had lived at that residence for five years; Detective Grant said that Wallace first referred to M.T. as his wife and that Wallace later called M.T. his girlfriend. Wallace told Detective Grant that he, M.T., and E.T., lived in the house.

Detective Benjamin Schlemmer, a narcotics officer with the Montgomery Police Department, testified that he was called to the house on Plum Street because officers on site suspected that they had discovered a portable meth lab. Detective Schlem-mer testified to the extent of his training in identifying “both the finished product of methamphetamines once it had actually been manufactured and then also how to identify the manufacturing process of methamphetamine.” (R. 232.) He had over 150 hours of training that -focused on the manufacture of narcotics, specifically methamphetamine. He said that coffee filters, tubing, a funnel, butane, a mason jar with a clear liquid at the bottom of it, salt, and rags at the residence were all materials necessary for a one-pot meth lab. Detective Schlemmer testified:

“Prosecutor: And say in the instance of cocaine, would you actually collect that evidence?
“[Detective Schlemmer]: Yes, ma’am. I would collect it myself.
“Prosecutor: What would you do with that evidence once you collected it?
“[Detective Schlemmer]: I would submit it to the Department of Forensic Sciences for analysis.
“Prosecutor: Okay. In the instance of a meth lab, do you collect evidence in the same way you would with, say, cocaine?
“[Detective Schlemmer]: No, ma’am,-we do not.
“Prosecutor: Why not?
“[Detective Schlemmer]: When you show up on the scene of a meth lab, like I said, you have many volatile chemicals. You have camping fuel which is flammable. A lot of times you’ll have lithium strips, battery strips, which create sparks and heat which can cause the camp fuel to ignite. You can also have multiple other explosive devices that are generally kept under pressure. So once those have been combined, there’s no way to send it over to the lab without endangering the people that would be testing it.”

(R. 238-39.) Detective Schlemmer said that he observed a white smoke coming from the container, that the smoke had an acidic ammonia smell, and that, in his experience, which he had detailed, the box discovered in the closet was a “one-pot methamphetamine lab.” (R. 245.) Detective Schlemmer further testified that at a certain stage in the manufacture of methamphetamine, the plastic bottle will contain three layers of liquid: a bottom and top layer of byproduct and a middle layer of methamphetamine oil. He further explained that what should be a clear liquid in the plastic bottle is often tinted blue or red depending on the component containing the ephedrine or pseudoephedrine. He said that either ephedrine or pseu-doephedrine is a necessary ingredient in making methamphetamine and that neither may be purchased but must be extracted from various cold or allergy pills such as Sudafed. These pills are assigned specific colors — Sudafed is red. During the chemical processing inside the plastic bottle, Detective Schlemmer said, the color attached to the agent used separates and releases the coloring “thus causing the tinting in the liquid.” (R. 270.) Following this stage in the manufacture, filters would be used to extract the methamphetamine oil and then the butane and hoses would be used to apply pressure to the oil, which results in the formation of crystal methamphetamine. Here, the substance at the top of the liquid was red, indicating that pseu-doephedrine had been used in the process.

Detective Schlemmer contacted the Drug Enforcement Administration, who, in turn, summoned a company — One-Stop Environmental — to dispose of the lab and its contents. He watched an employee of One-Stop test the finished product and then place it in a container for transporting hazardous material, Detective Schlem-mer said.

E.T. testified at Wallace’s trial and a videotape of her interview by law-enforcement officers also was admitted and played to the jury. At trial, E.T. testified that she was then in the first grade, that she lived with her mother and her stepfather, Wallace, and that her mother and Wallace married after Wallace was arrested. On the videotape E.T. said that on three occasions she had seen Wallace put “medicine” into the plastic bottle and that she had seen Wallace “fire[] it up and then he smoked it.” She also said that she told Wallace that police would find the “stuff’ in the closet.

Alabama has never required direct proof that a substance is a controlled substance to sustain a drug conviction. As this Court stated in J.M.A. v. State, 74 So.3d 487 (Ala.Crim.App.2011):

“This Court has upheld convictions for possession of a controlled substance despite a lack of scientific testing where a witness who confiscated or took possession of the substance testified to having sufficient knowledge or expertise to identify the substance. See Hanks v. State, 562 So.2d 536, 540 (Ala.Crim.App.1989), rev’d on other grounds, 562 So.2d 540 (Ala.1989) (upholding admission of police officer’s opinion testimony that substance was marijuana, despite lack of scientific testing, where ‘the record con-tainted] ample evidence of the testifying police officer’s experience and training in the area of drug enforcement and drug detection and identification’); Headley v. State, 720 So.2d 996, 998 (Ala.Crim.App.1998) (‘The evidence does not have to consist of scientific testing, so long as the proper foundation for the arresting officer’s own experience in identifying marijuana is laid.’); Powell v. State, 804 So.2d 1167, 1170 (Ala.Crim.App.2001) (affirming conviction where ‘the witness who identified the substance as marijuana[ ] had experience in recognizing marijuana[ ] and was familiar with its odor and appearance’).”

74 So.3d at 493-94.

Overwhelmingly, the vast majority of jurisdictions that have considered this issue agree that chemical tests are not necessary to obtain a drug-related conviction.

“ ‘The law is quite clear that the introduction of a chemical analysis of the substance is not essential to conviction. ... The narcotic nature of the substance need not be proved by direct evidence if the circumstantial evidence presented established ... that beyond a reasonable doubt the substance was [cocaine]. [Citations omitted.]’ •
“United States v. Zielie, 734 F.2d 1447, 1456 (11th Cir.1984), cert. denied, 469 U.S. 1189, 105 S.Ct. 957, 83 L.Ed.2d 964 (1985); see United States v. Leavitt, 878 F.2d 1329, 1336 (11th Cir.), cert. denied, 493 U.S. 968, 110 S.Ct. 415, 107 L.Ed.2d 380 (1989); United States v. Harrell, 737 F.2d 971, 978 (11th Cir.1984), cert. denied, 469 U.S. 1164, 105 S.Ct. 923, 83 L.Ed.2d 935 (1985); United States v. Crisp, 563 F.2d 1242, 1244 (5th Cir.1977); United States v. Quesada, 512 F.2d 1043, 1045 (5th Cir.), cert. denied, 423 U.S. 946, 96 S.Ct. 356, 46 L.Ed.2d 277 (1975). The law of this circuit takes the expansive view that the identification of a controlled substance can be established by such circumstantial evidence as ‘lay experience based on familiarity through prior use, trading, or law enforcement; a high sales price; on-the-scene remarks by a conspirator identifying the substance as a drug; and behavior characteristic of sales and use, such as testing, weighing, cutting and peculiar ingestion.’ Harrell, 737 F.2d at 978. Additionally, this court has recognized that ‘the uncorroborated testimony of a person who observed a defendant in possession of a controlled substance is sufficient if the person is familiar with the substance at issue.’ Zielie, 734 F.2d at 1456; see United States v. Rodriguez-Arevalo, 734 F.2d 612, 616 (11th Cir.1984); United States v. Sanchez, 722 F.2d 1501, 1506 (11th Cir.), cert. denied, 467 U.S. 1208, 104 S.Ct. 2396, 81 L.Ed.2d 353 (1984).”

United States v. Baggett, 954 F.2d 674, 677 (11th Cir.1992).

“Illegal drugs will often be unavailable for scientific analysis because their nature is to be consumed. As a practical matter, therefore, the evidentiary' rule urged by [the appellant] would insulate from prosecution a large class of unlawful acts involving illicit drugs when the government happens upon the scene too late to seize a sample of the substance. To our knowledge, no court has held that scientific identification of a substance is an absolute prerequisite to conviction for a drug-related offense, and we too are unwilling to announce such a rule. In view of the limitations that such a burden would place on prosecutors, and in accordance with general evi-dentiary principles, courts have held that the government may establish the identity of a drug through cumulative circumstantial evidence. See, e.g., United States v. Osgood, 794 F.2d 1087, 1095 (5th Cir.), cert. denied, 479 U.S. 994, 107 S.Ct. 596, 93 L.Ed.2d 596 (1986); [United States v.] Harrell, 737 F.2d [971] 978-79 [ (11th Cir.1984) ]. So long as the government produces sufficient evidence, direct or circumstantial, from which the jury is able to identify the substance beyond a reasonable doubt, the lack of scientific evidence is not objectionable. Cf. Osgood, 794 F.2d at 1095; Harrell, 737 F.2d at 978.”

United States v. Schrock, 855 F.2d 327, 334 (6th Cir.1988). See also United States v. Walters, 904 F.2d 765, 770 (1st Cir.1990) (“Proof based on scientific analysis or expert testimony is not required to prove the illicit nature of a substance, and identification of a substance as a drug may be based on the opinion of a knowledgeable lay person.”); United States v. Scott, 725 F.2d 43, 45 (4th Cir.1984) (“[L]ay testimony and circumstantial evidence may be sufficient, without the introduction of an expert chemical analysis, to establish the identity of the substance involved in an alleged narcotics transaction.”); State v. Hernandez, 85 Wash.App. 672, 676, 935 P.2d 623, 625 (1997) (“Circumstantial evidence and lay testimony may be sufficient -to establish the identity of a drug in a criminal case.”); United States v. Murray, 753 F.2d 612, 615 (7th Cir.1985) (“The identity of a drug may be established by circumstantial evidence.”); Sterling v. State, 791 S.W.2d 274, 277 (Tex.App.1990) (“An expert may identify a controlled substance without chemical analysis.”); United States v. Agueci, 310 F.2d 817, 828 (2d Cir.1962) (“Just as with any other component of the crime, the existence of and dealing with narcotics may be proved by circumstantial evidence; there need be no sample placed before the jury, nor need there be testimony by qualified chemists as long as the evidence furnished found for inferring that the material in question was narcotics.”).

The United States Court of Appeals for the Fourth Circuit stated the following concerning the types of circumstantial evidence that will support a drug conviction where no scientific evidence as to the identity of the drug has been introduced:

“Such circumstantial proof may include evidence of the physical appearance of the substance involved in the transaction, evidence that the substance produced the expected effects when sampled by someone familiar with the illicit drug, evidence that the substance was used in the same manner as the illicit drug, testimony that a high price was paid in cash for the substance, evidence that transactions involving the substance were carried on with secrecy or deviousness, and evidence that the substance was called by the name of the illegal narcotic by the defendant or others in his presence.... ”

United States v. Dolan, 544 F.2d 1219, 1221 (4th Cir.1976).

Here, Detective Schlemmer testified that the plastic bottle and its components were consistent with the materials needed to build a meth lab and that the chemical smell emanating from the bottle was consistent with the presence of methamphetamine. The liquid on the top in the bottle was the color of one of the ingredients used in the process, Detective Schlemmer said, and the substance in this case was red, indicating the presence ’ of pseu-doephedrine. E.T.' said on videotape that she had seen Wallace put “medicine” in the bottle and that she had seen him “fire[ ] it up and then he smoked it.” The State’s evidence established beyond a reasonable doubt that Wallace was guilty of the unlawful manufacture of a controlled substance.

II.

Wallace next argues that the State failed to prove that he violated § 26-15-3.2, Ala.Code 1975, because, he says, it failed to prove that he was a “responsible person” as that term is defined in § 26-15-2, Ala.Code 1975.

Section 26-15-3.2(a), Ala.Code 1975, defines the crime of chemical endangerment:

“(a) A responsible person commits the crime of chemical endangerment of exposing a child to an environment in which he or she does any of the following:
“(1) Knowingly, recklessly, or intentionally causes or permits a child to be exposed to, to ingest or inhale, or to have contact with a controlled substance, chemical substance, or drug paraphernalia as defined in Section 13A-12-260.”

A “responsible person” is defined in § 26-15-2(4), Ala.Code 1975, as follows:

“A child’s natural parent, stepparent, adoptive parent, legal guardian, custodian, or any other person who has the permanent or temporary care or custody or responsibility for the supervision of a child.”

Here, E.T. testified that Wallace was her stepfather. (R. 218.) She said that her mother and Wallace married after Wallace was arrested. Wallace told law enforcement that he had lived at the Plum Street residence for five years. M.T. told police that the bedroom where the drugs were found was occupied by her and Wallace.

The jury could have inferred that E.T. was under the supervision of her mother and Wallace. The State presented sufficient evidence that Wallace was a “responsible person” as that term is defined in § 26-15-2, Ala. Code 1975.

III.

Last, Wallace argues that the circuit court committed reversible error by refusing to give an instruction on the statutory definition of precursor chemicals that are contained in § 20-2-181, Ala.Code 1975.

At trial, Wallace requested that the court read § 20-2-181(d), Ala. Code 1975, the list of the 17 enumerated precursor chemicals recognized in that statute, to the jury. The circuit court indicated that no pattern jury instruction existed for the offense, that the list of precursor chemicals was not exclusive, and that the list was confusing. The circuit court declined to read the list of the precursor chemicals to the jury. (R. 320.)

“ ‘It has long been the law in Alabama that a [circuit] court has broad discretion in formulating jury instructions, provided those instructions are accurate reflections of the law and facts of the case.’ Culpepper v. State, 827 So.2d 883, 885 (Ala.Crim.App.2001) (citing Knotts v. State, 686 So.2d 431, 456 (Ala.Crim.App.1995)).”

Barrett v. State, 33 So.3d 1287, 1288 (Ala.Crim.App.2009).

“The trial judge may refuse to give a requested jury charge when the charge is either fairly and substantially covered by the trial judge’s oral charge or is confusing, misleading, ungrammatical, not predicated on a consideration of the evidence, argumentative, abstract, or a misstatement of the law.”

Harris v. State, 794 So.2d 1214, 1220 (Ala.Crim.App.2000).

As stated in Part I, to be convicted of violating § 13A-12-218, Ala.Code 1975, the State must prove that the appellant is guilty of violating § 13A-12-217, Ala.Code 1975. This section provides:

“(a) A person commits the crime of unlawful manufacture of a controlled substance in the second degree if ... he does any of the following:
“(1) Manufactures a controlled substance enumerated in Schedules I to V, inclusive.
“(2) Possesses precursor substances as determined in Section 20-2-181, in any amount with the intent to unlawfully manufacture a controlled substance.”

(Emphasis added.)

Here, the indictment charged alternative means of committing the offense of the unlawful manufacture of a controlled substance in the second degree:

“Emmett Grady Wallace ... whose name is otherwise unknown to the Grand Jury, did knowingly manufacture a controlled substance in Schedules I to V, to-wit: METHAMPHETAMINE, and/or possess precursor substances, in any amount, with the intent to unlawfully manufacture a controlled substance .... ”

(Emphasis added.)

The circuit court instructed the jury on the manufacture of methamphetamine, and the jury returned a verdict finding Wallace guilty of the unlawful manufacture of a controlled substance. “We have recognized that an error in instructions pertaining to a particular charge is rendered harmless where the jury returns a verdict of guilty to a different or alternative charge.” State v. Bowman, 588 A.2d 728, 732 (Me.1991). See Deutcsh v. State, 610 So.2d 1212, 1221 (Ala.Crim.App.1992). Thus, any error in the circuit court’s failure to list all the precursor chemicals necessary to constitute a violation of § 13A-12-217(a)(2), Ala.Code 1975, an alternative method of committing the crime of the unlawful manufacture of a controlled substance in the second degree, was harmless beyond a reasonable doubt.

For the foregoing reasons, we affirm Wallace’s convictions for the chemical endangerment of a child and the unlawful manufacture of a controlled substance.

APPLICATION FOR REHEARING GRANTED; OPINION OF JUNE 29, 2012, WITHDRAWN; OPINION SUBSTITUTED; AFFIRMED.

WINDOM, P.J., and KELLUM, BURKE, and JOINER, JJ., concur.

WELCH, J., concurs in part and dissents in part, with opinion.

WELCH, Judge,

concurring in part and dissenting in part.

The majority affirms Emmett Grady Wallace’s convictions for chemical endangerment of a child, § 26-15-3.2(a), Ala. Code 1975, and first-degree unlawful manufacture of a controlled substance, § 13A-12-218, Ala.Code 1975. I concur with the majority’s affirmance of the chemical-endangerment conviction. I disagree with the majority’s resolution of Wallace’s challenge to the unlawful-manufacture conviction and respectfully dissent as to the portions of the opinion discussing the two issues related to that conviction.

Wallace argues that the trial court erred when it denied the motion for a judgment of acquittal as to the unlawful-manufacture charge that he made at the conclusion of the State’s case because, he says, the State did not present scientific evidence to establish either that the substance he manufactured was methamphetamine or that he possessed any chemical precursors as defined in § 20-2-181, Ala.Code 1975.

It appears that the majority holds that the State proved beyond a reasonable doubt that Wallace was guilty of the unlawful manufacture of a controlled substance, and appears to hold that the State established a prima facie case as to both alternatives of the charge — that Wallace actually manufactured methamphetamine and that he possessed a precursor chemical. The evidence presented by the State supports neither alternative.

Of course, the majority has correctly stated that, in reviewing a trial court’s denial of a motion for a judgment of acquittal, this Court must consider the evidence in the light most favorable to the State and must determine whether, at the time the motion was made, there was sufficient evidence before the jury from which the jury could by fair inference have found the defendant guilty. I agree with the majority’s statement that “Alabama has never required direct proof that a substance is a controlled substance to sustain a drug conviction.” 130 So.3d at 218. I do not disagree with the majority’s implicit holding that the prosecution is not required in all cases to present evidence based on scientific testing and analysis to identify a controlled substance. However, all those propositions, combined with the principle that circumstantial evidence is entitled to the same weight as direct evidence so long as it points unequivocally to the defendant’s guilt, are not enough to uphold the trial court’s denial of Wallace’s motion for a judgment of acquittal in this case.

Wallace was charged with knowingly manufacturing a controlled substance— methamphetamine — and/or possessing a precursor substance as defined in § 20-2-181, Ala.Code 1975, with the intent to unlawfully manufacture a controlled substance.

Section 13A-12-218 provides, in relevant part:

“(a) A person commits the crime of unlawful manufacture of a controlled substance in the first degree if he or she violates Section 13A-12-217 and two or more of the following conditions occurred in conjunction with that violation:
“(4) A clandestine laboratory operation was to take place or did take place within 500 feet of a residence, place of business, church, or school.
“(6) A clandestine laboratory operation was for the production of controlled substances listed in Schedule I or Schedule II.
“(7) A person under the age of 17 was present during the manufacturing process.”

Section 13A-12-217, Ala.Code 1975, provides, in relevant part:

“(a) A person commits the crime of unlawful manufacture of a controlled substance in the second degree if, except as otherwise authorized in state or federal law, he or she does any of the following:
“(1) Manufactures a controlled substance enumerated in Schedules I to V, inclusive.
“(2) Possesses precursor substances as determined in Section 20-2-181, in any amount with the intent to unlawfully manufacture a controlled substance.”

A. .Manufacture of Methamphetamine

The majority states: “Detective Schlem-mer testified that the plastic bottle and its components were consistent with the materials needed to build a meth lab and that the chemical smell emanating from the bottle was consistent with the presence of meth.” 130 So.3d at 220. I agree with the majority. The State established that Wallace had the components for a one-pot methamphetamine lab. The State further established that the liquid at the top of the plastic bottle had a red tint, indicating the possible presence of pseudoephedrine, which the State acknowledged was a necessary ingredient of methamphetamine. Finally, the State established that E.T. had on prior occasions seen Wallace put pills in the bottle and that he had smoked what he made in the bottle. However, the State presented no evidence to prove that the substance in the seized plastic bottle was, in fact, methamphetamine or that completed methamphetamine had been produced by Wallace. Rather, Det. Schlemmer explained part of the manufacturing process, testified that the layered liquid in the plastic bottle indicated that an intermediate step in the process had not been completed and that two additional steps were required — filtration to extract methamphetamine oil and application of gas to the oil to crystalize it, but that “it hadn’t made it to that process yet.” (R. 283.) The substance in the Mason jar was tested by the clean-up crew, but there was no testimony about the result of that test and certainly no testimony that the test revealed the presence of methamphetamine.

At most, the State proved that Wallace was attempting to make methamphetamine, but the State’s own witness established that Wallace had not completed the process. Rather, the State hoped that the jury would fill in the gaps in the evidence, that it would overlook the State’s failure to provide even circumstantial evidence that Wallace had actually manufactured methamphetamine, and that it would find Wallace guilty of manufacturing a drug without any evidence that the drug was ever actually produced. A reasonable jury could not have concluded beyond a reasonable doubt that Wallace was guilty of completed crime of the unlawful manufacture of methamphetamine, and I dissent from the majority’s holding to the contrary.

However, Alabama specifically criminalizes the attempt to commit a controlled-substance crime.

“Section 13A-12-203(a), Ala.Code 1975, provides that ‘[a] person is guilty of an attempt to commit a controlled substance crime if he engages in the conduct defined in § 13A-4-2(a), and the crime attempted is a controlled substance crime.’ See also Rhodes v. State, 686 So.2d 1288, 1289 (Ala.Cr.App.1996); Norris v. State, 601 So.2d 1105 (Ala.Cr.App.1991). Section 13A-4-2(a), Ala. Code 1975, provides that ‘[a] person is guilty of an attempt to commit a crime if, with the intent to commit a specific offense, he does any overt act towards the commission of such offense.’ ”

Davis v. State, 747 So.2d 921, 922 (Ala.Crim.App.1999).

Here, the State established that Wallace was in an intermediate phase in the process of manufacturing methamphetamine. When the police arrived, a chemical reaction consistent with manufacturing methamphetamine was taking place in a container commonly used to manufacture methamphetamine. But for proof of the presence of ephedrine or pseudoephedrine, Wallace had the necessary components to complete the manufacture of methamphetamine. These facts are sufficient to constitute overt acts toward the commission of manufacturing methamphetamine.

Because the jury was charged on the offense of the attempted manufacture of a controlled substance, this case should be remanded to the trial court with instructions for that court to enter a judgment of guilty of the lesser-included offense of attempted manufacture of a controlled substance and to impose a sentence for that offense. See Brand v. State, 960 So.2d 748 (Ala.Crim.App.2006) (holding that appellate courts have the authority to reverse a conviction and order an entry of judgment on a lesser-included offense).

Based on the foregoing, the trial court erred when it denied Wallace’s motion for a judgment of acquittal as to the first alternative of the unlawful-manufacture count.

B. Possession of Precursor Chemicals

The majority holds that the State proved the second alternative of the unlawful-manufacture charge — that Wallace was in possession of a precursor substance and that he had the intent to manufacture methamphetamine. I disagree.

1. Evidentiary Insufficiency

The State did not proffer any evidence indicating that Wallace was in possession of any precursor substances, as defined in § 20-2-181(d), Ala.Code 1975, which evidence was required to prove the alternative charge that Wallace possessed precursor substances with intent to unlawfully manufacture methamphetamine.

Section 20 — 2—181 (d), Ala.Code 1975, addresses precursor chemicals and states:

“Until the Board of Pharmacy adopts a rule designating listed precursor chemicals, as required by subsection (a), the following chemicals or substances are hereby deemed listed precursor chemicals:

“(1) Acetic anhydride;
“(2) Anthranilic acid and its salts;
“(3) Benzyl cyanide;
“(4) Ephedrine, its salts, optical isomers, and salts of optical isomers;
“(5) Ergonovine and its salts;
“(6) Ergotamine and its salts;
“(7) Hydriodic acid;
“(8) Isosafrol;
“(9) Methylamine;
“(10) N-Acetylanthranilic acid and its salts;
“(11) Norpseudoephedrine, its salts, optical isomers, and salts of optical isomers;
“(12) Phenylacetic acid and its salts;
“(13) Phenylpropanolamine, its salts, optical isomers, and salts of optical isomers;
“(14) Piperidine and its salts;
“(15) Pseudoephedrine, its salts, optical isomers, and salts of optical isomers;
“(16) Safrole; and
“(17) 3,4-Methylenedioxyphenyl-2-propanone.”

Although the State presented testimony that Wallace had in his possession various components that were used in the methamphetamine-manufacturing process, such as camp fuel, rubber hosing, coffee filters, rags, and a box of salt, none of those items are precursor chemicals as defined in the statute, and no witness testified otherwise. The only evidence that might have suggested that a precursor chemical was present was E.T.’s statement that she had previously seen Wallace put pills in the plastic bottle. However, reference to a handful of pills at some prior time was insufficient proof that at the time of his arrest Wallace possessed pseudoephedrine or any other precursor chemical listed in the statute. Det. Schlemmer testified that the red tint to the liquid in the bottle was consistent with Sudafed brand decongestant. No doubt there are numerous red pills and other substances that Wallace could have placed in the bottle and that could have resulted in the red-tinted liquid found in the bottle at the time of Wallace’s arrest. The State presented no packaging, receipts of purchase, or any other evidence that would have allowed the jury to conclude that Wallace placed any necessary precursor, including pseudoephedrine or Sudafed, into the bottle. As Wallace argued at trial, the fact that Sudafed was a red pill and that the water was tinted red did not constitute sufficient proof that the water in the bottle was red because he had placed Sudafed in it.

The State provided an incomplete chain of facts and resorted to speculation and conjecture in an attempt to prove that Wallace had, in fact, placed pseudoephed-rine, which the State’s expert witness testified was a necessary ingredient in the manufacturing process of methamphetamine, inside the plastic bottle. A jury is not permitted to conclude that a defendant is guilty beyond a reasonable doubt based on inferences that are unsupported by evidence. The State’s incomplete chain of facts in this case required the jury to rely on such unsupported inferences and speculation. The State’s evidence, when viewed in the light most favorable to the State, was not sufficient for a jury to reasonably find that the evidence excluded every reasonable hypothesis except that of guilt. See Lockhart v. State, 715 So.2d 895, 899 (Ala.Crim.App.1997), quoting Ward v. State, 610 So.2d 1190, 1191 (Ala.Crim.App.1992). The State failed to present any evidence that would allow the jury to find, beyond a reasonable doubt, that Wallace possessed precursor chemicals with the intent to manufacture methamphetamine. Therefore, a verdict based on § 13A-12-217(a)(2) could not be upheld, and the trial court erred when it denied Wallace’s motion for a judgment of acquittal as to this alternative of the unlawful-manufacture charge.

2. Jury Instruction

I would hold that the trial court erred when it denied Wallace’s motion for a judgment of acquittal as to the alternative charge in the indictment of possession of precursor chemicals with the intent to manufacture methamphetamine, thus rendering moot Wallace’s argument in Issue III of his brief — that the trial court erred when it refused to instruct the jury, based on § 20-2-181(d), Ala.Code 1975, as to the substances that were defined by the statute as precursors. However, I address this issue here because the majority appears to hold in Part I of its opinion that the State established a prima facie case of the possession of precursor chemicals with the intent to manufacture and then holds in Part III of its opinion that the trial court did not err when it refused to give the statutory definition of precursor chemicals contained in § 20-2-181, Ala.Code 1975.

I disagree with the majority’s analysis and holding.

The indictment charged Wallace with possessing “precursor substances, in any amount, with the intent to unlawfully manufacture a controlled substance, as determined in Section 20-2-181 of the Code of Alabama 1975,” but the indictment did not list any specific precursor chemical. In order to find him guilty under this count, the prosecution had to prove that he was in possession of a precursor listed in the statute. Testimony about the presence of various components that could be used in the methamphetamine-manufacturing process, such as camp fuel, rubber hosing, coffee filters, rags, and a box-of salt, was not the same as proof of the presence of a precursor chemical. None of those items are precursor chemicals as defined in the statute, and no witness testified otherwise. Det. Schlemmer implied that Wallace had used Sudafed to make methamphetamine, but the detective was unable to testify to that fact, and there was no other testimony that would have permitted the jury to make that finding, nor was there any testimony about any other chemical that would have been classified as a precursor under § 20-2-181.

During the jury-charge conference Wallace asked the trial court to instruct the jury on what constitutes precursor chemicals by reading the list of substances in § 20-2-181. When the State objected to Wallace’s request, Wallace’s attorney asked, “How are they supposed to decide? How are they supposed to decide if this man possessed precursor chemicals if we do not define what precursor chemicals are?” (R. 310.) He also stated, “I don’t see how we can send a jury back there and ask them to determine whether or not this man possessed precursors if we don’t give them what precursors are.” (R. 311.)

As the majority states, a trial court has broad discretion in formulating its jury charge, so long as the charge accurately reflects the facts and the law of the case. 130 So.3d at 221 If the trial court refuses to give a requested jury instruction, no error results if the substance of the charge is covered in the trial court’s charge to the jury. E.g., Weeks v. State, 611 So.2d 1156, 1158 (Ala.Crim.App.1992).

The trial judge here did not adequately charge the jury on the law of the case, and it abused its discretion when it denied Wallace’s request that it list the precursor substances in § 20-2-181, Ala.Code 1975.

The majority states that because the jury was presented with alternative ways of proving- first-degree manufacturing a controlled substance — i.e., by manufacturing methamphetamine and/or possessing precursor chemicals with intent to manufacture a controlled substance — any error in not charging -the jury with the definition of “precursor chemicals” was harmless. Citing State v. Bowman, 588 A.2d 728, 732 (Me.1991), the majority states that “ ‘an error in instructions pertaining to a particular charge is rendered harmless where the jury returns a verdict of guilty to a different or alternative charge.’” 130 So.3d 212, quoting Bowman, 588 A.2d at 732. I do not believe that Bowman supports the majority’s contention. Bowman addressed alternate charges; Wallace’s case concerns alternate proof. Bowman was charged with murder. The issue was whether the jury was properly charged on manslaughter. Although it was determined that the manslaughter charge was erroneous, the Bowman court found that the trial court had instructed the jury to first decide whether Bowman was guilty of murder before deciding his culpability for manslaughter. The jury found Bowman guilty of murder; thus, that court held that the error regarding the manslaughter instruction was harmless because the jury did not consider the manslaughter charge. In Deutcsh v. State, 610 So.2d 1212 (Ala.Crim.App.1992), also cited by the majority, the jury was given an erroneous instruction on tampering with governmental records as charged in § 13A-10-12(a)(2), Ala.Code 1975.’ This Court held that the error was harmless because Deutcsh was convicted of tampering with governmental records as charged in § 13A-10-12(a)(l), Ala.Code 1975. Unlike Bowman and Deutcsh, Wallace was not convicted of an alternative offense to the charged offense. Wallace concerns alternative proof to substantiate the offense charged in the indictment. In this case, the jury was instructed that it could find guilt based on manufacturing methamphetamine (a controlled substance in Schedules I to V) or possession of a precursor chemical, or both. I do not believe it was proper to instruct the jury that it could return a guilty verdict based on the possession of a precursor chemical without defining precursor chemical.

“When a term is included in a statute relevant to a case, and that term is not defined by statute, whether it is necessary for the trial court to define the term for the jury hinges on the facts of the case.” Ivery v. State, 686 So.2d 495, 501-02 (Ala.Crim.App.), aff’d on return to remand, 686 So.2d 520 (Ala.Crim.App.1996). The term, “precursor,” is not defined in § 13A-12-217, but that statute refers to § 20-2-181. Section 20-2-181 does not define the term, but it includes a list of chemicals that are considered precursor chemicals. "When it denied Wallace’s request for the jury instruction, the trial court noted that there is no pattern jury instruction defining “precursor,” which is true. That, alone, does not resolve the issue, however. If the term was one that was understood by the average juror in his or her common usage, that would mitigate against the need for a definition. E.g., Thornton v. State, 570 So.2d 762, 772-73 (Ala.Crim.App.1990). “Precursor” is not within the common usage of an average juror, and it is arguably not within the common usage of law-enforcement officers, as Wallace demonstrated in his cross-examination of one of the police officers, who was unable to name even one precursor necessary to the manufacture of methamphetamine. (R. 192, 195.) Without a definition being provided to the jury, it is possible, and perhaps likely, that the jury found that Wallace’s possession of the items such as the tubing and the camp fuel constituted proof that he was in possession of a “precursor substance,” because the State argued that all the components found in the search of the Plum Street residence were used in manufacturing methamphetamine. Certainly the jury was never instructed that, in order to find Wallace guilty under the second alternative for proving second-degree manufacturing of a controlled substance as charged in the indictment, it would have to find beyond a reasonable doubt that Wallace possessed the precursor chemical pseudoephedrine. Without an instruction as to what substances constituted precursors, the jury could not be expected to reach an informed decision about whether Wallace possessed one. The trial court abused its discretion when it refused Wallace’s requested jury instruction. The error was exacerbated by the trial court’s reference in its jury charge to § 20-2-181 and to the fact that the statute delineated precursor substances. (R. 353.) The trial court’s error as to the denial of the jury charge, too, provides a basis for reversal of Wallace’s conviction for the unlawful manufacture of a controlled substance.

Therefore, I concur only with the affir-mance of Wallace’s conviction for the chemical endangerment of a child, as discussed in Part II of the majority opinion. I disagree with the majority’s analysis of the issues related to Wallace’s unlawful-manufacture conviction, and I dissent from the affirmance of that conviction.

      . To protect the anonymity of the child victim in this case, we are using initials for the child’s mother and child. See Rule 52, Ala.R.App. P.

      . The dissenting opinion asserts:
      "[T]he State presented no evidence to prove that the substance in the seized plastic bottle was, in fact, methamphetamine or that completed methamphetamine had been produced by Wallace. Rather, Det. Schlemmer explained part of the manufacturing process, testified that the layered liquid in the plastic bottle indicated that an intermediate step in the process had not been completed and that two additional steps were required' — -filtration to extract methamphetamine oil and application of gas to the oil to crystalize it, but that ‘it hadn't made it to that process yet.’ ”
      130 So.3d at 224 (emphasis added). As the emphasized language indicates, Detective Schlemmer's testimony was sufficient for the jury to conclude that the one-bottle meth lab in this case contained methamphetamine.
      Detective Schlemmer specifically testified that the middle layer of liquid in a one-bottle meth lab, like the one in Wallace’s case, is methamphetamine oil. For purposes of proving that Wallace possessed methamphetamine in violation of § 13A-12-217, this testimony was sufficient. Wallace does not argue that the State was required to prove that he possessed methamphetamine; rather, he argues that the State was required to use scientific or forensic analysis to prove that he possessed methamphetamine. See Wallace’s brief, p. 15 ("The core of Mr. Wallace’s argument is that the State cannot prove [its] case without scien-

        tifie evidence indicating that a chemical compound listed in Schedule I through V was manufactured by Mr. Wallace .... Mr. Wallace’s contention is that in order to convict the State would be required to present expert scientific testimony at the trial of his case.” (emphasis added)). For the reasons discussed, Wallace's position is inconsistent with Alabama law.

      . Section 20-2-180(2), Ala.Code 1975, provides: "Listed Precursor Chemical. A chemical substance specifically designated as such by the Alabama State Board of Pharmacy, that, in addition to legitimate uses, is used in the unlawful manufacture of a controlled substance or controlled substances.”


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    Maria T. NEVILLE, Appellant, v. JC PENNEY CORP., Wellington Green Mall/Chartis Insurance and Chartis, Appellees.
    No. 1D12-5006.
    District Court of Appeal of Florida, First District.
    Dates of Accidents May 7, 2008; May 20, 2009.
    May 17, 2013.
    Rehearing Denied June 7, 2013.
    Kimberly A. Hill of Kimberly A. Hill, P.L., Fort Lauderdale, for Appellant.
    Richard B. Robbins and Theodore N. Goldstein of Rissman, Barrett, Hurt, Donahue & McLain, P.A., Orlando, for Appel-lees.
   PER CURIAM.

At issue in this workers’ compensation appeal is whether Claimant’s attorney is entitled to be paid an attorney fee by the Employer/Carrier (E/C) under section 440.34(3)(b), Florida Statutes (2008), based on petitions for benefits filed on July 20, 2009, and November 17, 2009. Because competent substantial evidence (CSE) supports the finding that Claimant’s counsel did not secure benefits sought in the July 2009 petition, we affirm this issue without further comment. As to Claimant’s November 2009 petition, we find the Judge of Compensation Claims (JCC) erred by denying entitlement to a fee, and reverse and remand.

In order to establish entitlement to an E/C-paid attorney’s fee under section 440.34(3), Florida Statutes (2008), the following circumstances must exist: the “carrier files a response to the petition denying benefits,” there is a “successful prosecution of the petition,” and a period of thirty days elapses from “the date the carrier receives the petition.” Franco v. SCI at Palmer Club at Prestancia, 989 So.2d 709, 710 (Fla. 1st DCA 2008). A JCC’s order denying entitlement to an attorney’s fee will be reversed when the findings made by the JCC are not supported by CSE. Hale v. Shear Express, Inc., 946 So.2d 94, 96 (Fla. 1st DCA 2006).

Here, there is no dispute that the E/C failed to respond to Claimant’s November 2009 petition seeking additional dental treatment. Thus, Claimant established that the E/C denied benefits sought in her petition. See McDonald’s Restaurant # 7160 v. Montes, 736 So.2d 768, 769 (Fla. 1st DCA 1999) (holding E/C is deemed to have denied petition by failure to either accept or deny claim within fourteen days). It is undisputed that the E/C agreed to authorize additional compensa-ble dental treatment with Dr. Smarinsky during a February 2010 mediation conference, well in excess of thirty days after the filing of Claimant’s November 2009 petition. Further,.it is undisputed that the E/C accepted and paid Dr. Smarinsky in full (in December 2010) for services rendered on June 24, 2010. Moreover, the E/C’s adjuster testified that but for the motion to compel compliance with the mediation agreement filed by Claimant’s counsel, the bill for services rendered on June 24, 2010, would never have been paid. Thus, Claimant established that Claimant’s attorney successfully prosecuted her claim. See Franco,. 989 So.2d at 710 (noting successful prosecution is achieving “acceptance and payment of the claim”). In Franco, this Court held that because more than thirty days had elapsed from the date the E/C received the petition and claimant had thereafter successfully achieved acceptance and payment of the claim, all of the statutory requirements of section 440.34(3) had been met for entitlement to attorney’s fees. Id. Accordingly, the JCC erred by denying Claimant’s entitlement to an award of attorney’s fees based on her November 2009 claim for additional dental care. For these reasons, this issue on appeal is reversed and remanded for determination as to the amount of the E/C-paid attorney’s fee.

AFFIRMED in part, REVERSED in part, and REMANDED for proceedings consistent with this opinion.

PADOVANO, WETHERELL, and SWANSON, JJ., Concur.


author: KELLY, Judge.

text:
    Rosalba Alcarez NIETO and Faviola Rodriguez; Wallace O. Farmer and Melva Jean Farmer, husband and wife; Loma L. Overmeyer; and Harry W. Comer and Saundra K. Comer, husband and wife, Appellants, v. MOBILE GARDENS ASSOCIATION OF ENGLEWOOD, INC., a Florida corporation, Appellee.
    No. 2D11-4958.
    District Court of Appeal of Florida, Second District.
    April 12, 2013.
    Rehearing Denied May 23, 2013.

      Michael M. Brownlee of Brownstone, P.A., Winter Park, and W. Kevin Russell of W. Kevin Russell, P.A., North Port, for Appellants.
    David K. Oaks of David K. Oaks, P.A., Punta Gorda, for Appellee.
   KELLY, Judge.

The appellants, residents of Mobile Gardens subdivision, appeal from the final judgment that found deed restrictions promulgated by the homeowners association valid and enforceable against them. The judgment also permanently enjoined appellants Rosalba A. Nieto and Faviola Rodriguez from having minors reside on their property because of the deed restriction defining the subdivision as an age-restricted community. Because the trial court erred in finding that Mobile Gardens had standing to enforce the restrictions, we reverse.

Mobile Gardens, a mobile home subdivision in Englewood, Florida, was developed in 1960. The developer of the subdivision recorded standard deed restrictions that regulated the construction of buildings and the maintenance of the property. The 1960 restrictions did not require membership in a homeowners association, nor did they have an age requirement for residency.

In 1963, Mobile Gardens Association of Englewood, Inc. (Mobile Gardens I), was incorporated. Mobile Gardens I homeowners association consisted of property owners who joined voluntarily. In 1972, the developer assigned the administration and enforcement of the deed restrictions to Mobile Gardens I. In 1974, Mobile Gardens I was administratively dissolved.

In 1991, the homeowners association formed a new corporation, also under the name Mobile Gardens Association of En-glewood, Inc. (Mobile Gardens II). This corporation had a new charter, articles of incorporation, and bylaws. Neither the articles nor the bylaws contained restrictions or suggested that Mobile Gardens II was a continuation of Mobile Gardens I. In forming Mobile Gardens II, no effort was made to revive the previously dissolved corporation.

In 2000, Mobile Gardens II recorded a new document purporting to assign to it the developer’s right to administer and enforce the deed restrictions. It then began a series of actions designed to revive and amend the 1960 deed restrictions in order to transform Mobile Gardens into an age-restricted community.- Among other things, it amended the restrictions to mandate that each unit be permanently occupied by someone over the age of fifty-five and to prohibit anyone under the age of eighteen from living in the units for more than thirty days per calendar year. The amended restrictions also require all property owners to become members of the homeowners association, and they give the association the power to assess fees, levy liens for delinquent fees, and foreclose on properties with outstanding lien amounts.

In 2010, Mobile Gardens II sued appellants Rosalba Nieto and Faviola Rodriguez, who had purchased property in the subdivision as joint tenants. It sought a permanent injunction requiring them to remove the minors living in their home. Also in 2010, appellants Wallace and Melva Farmer, Harry and Sandra Comer, and Loma Overmeyer, sued Mobile Gardens II for declaratory judgment, contending that Mobile Gardens II did not have the power to enforce the amended restrictions. They asked the trial court to determine the validity of Mobile Gardens II’s revival and amendment of the deed restrictions. The trial court ruled in favor of Mobile Gardens II in both cases, and it entered a permanent injunction compelling Ms. Nie-to and Ms. Rodriguez to remove persons from the property who violated the age restrictions.

The appellants raise several challenges to the trial court’s order, but because we find it dispositive, we discuss only their contention that Mobile Gardens II did not have standing to enforce the restrictive covenants. A homeowners association does not have standing to sue to enforce restrictive covenants unless it is an assignee of the developer’s right to enforce the restrictive covenants, or it is the direct successor of the developer’s interest. Palm Point Prop. Owners’ Ass’n of Charlotte Cnty., Inc. v. Pisarski, 626 So.2d 195, 196 (Fla.1998); Holiday Pines Prop. Owners Ass’n v. Rowen, 679 So.2d 824, 825 (Fla.4th DCA 1996). Mobile Gardens II argues that by virtue of the 2000 assignment it is the assignee of the developer, but this argument does not take into account the fact that the developer had already assigned those rights to Mobile Gardens I in 1972 leaving it with nothing to assign in 2000. Mobile Gardens has not directed our attention to any case suggesting that a subsequent assignment of a right that has already been assigned effectively transfers anything. Mobile Gardens I received the assignment in 1972 and holds it to the present day. Therefore, the trial court erred in finding that Mobile Gardens II had the authority to enforce the 1960 restrictions.

Accordingly, we reverse.

NORTHCUTT and VILLANTI, JJ., Concur.

      . Rosalba A. Nieto, Faviola Rodriguez, Wallace O. Farmer, Melva Farmer, Loma L. Ov-ermeyer, Harty W. Comer, and Saundra K. Comer, will be referred to collectively as "the appellants.” Mobile Gardens Association of Englewood, Inc. ("Mobile Gardens II”), incorporated in 1991, is the appellee.


author: BLACK, Judge.

text:
    PREMIER FINISHES, INC., and Peter Torres, Petitioners, v. Chris MAGGIRIAS, as Trustee of the Soulos Family Trust dated March 22, 2011, Respondent.
    No. 2D13-1340.
    District Court of Appeal of Florida, Second District.
    Nov. 15, 2013.

      Anthony M. Lawhon of Anthony M. La-whon, P.A., Naples, for Petitioners.
    Robert A. DeMarco of Treiser & Collins, P.L., Naples, for Respondent.
   BLACK, Judge.

Premier Finishes, Inc., and Peter Torres seek certiorari review of a circuit court order that discharged their claim of lien and lis pendens. The basis for the discharge was a name discrepancy. The order also dismissed their lien foreclosure claim without prejudice. The circuit court departed from the essential requirements of the law by discharging the claim of lien without determining if any adverse effect resulted from the discrepancy between the named lienor on the claim of lien and the named contractor on the contract. We therefore grant the petition for writ of certiorari, quashing the order to the extent that it discharged the claim of lien and lis pendens.

I. Background

In April 2011, Premier Finishes, under the fictitious name PFI Construction, and Peter Torres, owner and president, entered into a contract with the Soulos Family Trust (Owner) to build a house. In August 2012, Premier Finishes and Peter Torres (collectively Petitioners) filed a five-count complaint against Chris Maggi-rias, trustee of the Soulos Family Trust. The complaint alleged that Premier Finishes had substantially completed its performance pursuant to the contract when Mr. Maggirias “wrongfully terminated” Premier Finishes and failed to pay the outstanding balance due. The Petitioners also recorded a notice of lis pendens. As a result of the actions and inactions of Mr. Maggirias as alleged, Premier Finishes recorded a claim of lien on the property in April 2012, which was attached to the complaint. In count I of the complaint, the only count directly pertinent to our review, the Petitioners sought to foreclose the lien.

In response, Mr. Maggirias filed a motion to dismiss the complaint and discharge the claim of lien and lis pendens. Mr. Maggirias asserted that count I should be dismissed because the complaint and the recorded instruments were filed by Premier Finishes whereas the contract was entered into by PFI Construction. Thus, Mr. Maggirias contends that Premier Finishes is not a party to the contract, is not the “contractor,” and, consequently, is not the proper “lienor” under Florida’s Construction Lien Law. See § 713.01(8), (18), Fla. Stat. (2010).

A hearing on the motion to dismiss was held on February 18, 2013. It was undisputed that PFI Construction is a fictitious nonentity. Mr. Maggirias reiterated the arguments asserted in the motion to dismiss. He summarized by arguing that since there is no contractor, there can be no contract and that without a valid, enforceable contract, the lien is not enforceable. In response, the Petitioners contended that PFI Construction was not and is not an existing entity but rather that PFI Construction is simply a name used by Premier Finishes, basically an acronym. Further, the Petitioners asserted that though Premier Finishes entered into the contract under the name PFI Construction, Premier Finishes actually completed all of the work pursuant to the contract. Finally, the Petitioners argued that Mr. Maggirias failed to show any prejudice as a result of the potential errors, omissions, or deficiencies in the claim of lien to prevent its enforcement.

The circuit court granted Mr. Maggirias’ motion as to count I without prejudice and with leave to amend because “[tjhere [wa]s no alleged — no proven contract” to which Premier Finishes is a party. Mr. Maggiri-as requested that the lien and lis pendens be discharged, and over the Petitioners’ objections, the court acquiesced, finding “that under the strict reading of [chapter] 713,” Premier Finishes did not “have a basis for the lis pendens or the claim of lien.”

Before the circuit court issued its written order, the Petitioners filed what we have interpreted as a motion for rehearing. The Petitioners asserted in the motion that Premier Finishes is a party to the contract and thus the appropriate party to file the lien, as it simply does business under the name PFI Construction. The Petitioners emphasized that such would be further elucidated by way of the amended pleadings and at rehearing, conceding this fact was not made particularly clear in the initial complaint. However, there is no indication that this motion yras considered by the circuit court. In its written order rendered on February 26, 2013, granting Mr. Maggirias’ motion as to count I, the circuit court clarified that it was discharging the lien and lis pendens “since [Mr. Maggirias’] Motion to Dismiss Count I has been granted.” The circuit court denied the remaining claims, notably, count II for breach of contract.

In accordance with the circuit court’s order, the Petitioners filed an amended complaint alleging that Premier Finishes occasionally does business as PFI Construction, a fictitious name, making the two “entities” one and the same. The Petitioners stressed that Premier Finishes is the actual party to the contract. The Petitioners reasserted the lien foreclosure claim and also added a new count for imposition of an equitable lien. Mr. Mag-girias again moved to dismiss the lien foreclosure claim, as well as the equitable lien claim, asserting that there is no legal basis to foreclose a claim of lien that has been discharged.

II. Discussion

The circuit court dismissed the lien foreclosure count and in turn discharged the hen and lis pendens based upon the determination that a contract between Premier Finishes and the Owner was not sufficiently “alleged” or “proven.” Thus, as an introductory matter we must consider whether Premier Finishes is the contractor, defined by section 713.01(8) as the one who contracts with the owner for the purpose of improving real property, such that it is the proper lienor and may be entitled to enforce the claim of lien. See § 713.01(18)(a) (defining “lienor” as a contractor); see also § 713.05 (explaining that a contractor, as defined in section 713.01(8), who conforms with certain requirements shall have a lien based upon the contract).

It is true that a construction lien can only arise when a valid contract exists between the parties. See Viking Cmtys. Corp. v. Peeler Constr. Co., 367 So.2d 737, 739 (Fla. 4th DCA 1979) (“[A] contract is essential to any [eontractor]’s lien.”). Thus it seems contradictory for the circuit court to discharge the claim of lien filed by Premier Finishes based upon a contract entered into by PFI Construction, which the circuit court found to be unproven, but, at the same time, permit Premier Finishes to pursue its breach of contract claim based upon the very same contract. Nonetheless, if the contract is enforceable, the lien is legally enforceable provided the additional, statutory requirements for a construction lien are met. See Michnal v. Palm Coast Dev., Inc., 842 So.2d 927, 932 (Fla. 4th DCA 2003).

A contract entered into under a fictitious name is valid and enforceable. See § 865.09(9)(b), Fla. Stat. (2010); Worm World, Inc. v. Ironwood Prods., Inc., 917 So.2d 274, 275 (Fla. 1st DCA 2005). As a fictitious ñame is merely “a fiction involving the name of the real party in interest,” Riverwalk Apartments, L.P. v. RTM Gen. Contractors, Inc., 779 So.2d 537, 539 (Fla. 2d DCA 2000), the real entity that uses the fictitious name when entering into the contract is the actual party to the contract, see Worm World, 917 So.2d at 275. Thus, if Premier Finishes was the real entity using the fictitious name when entering into the contract, it is the actual party to the contract or the contractor pursuant to section 713.01(8) and is entitled to proceed with a claim of lien against the Owner. Cf. Trintec Constr., Inc. v. Countryside Vill. Condo. Ass’n, Inc., 992 So.2d 277, 282 (Fla. 3d DCA 2008) (holding that the circuit court’s order discharging the lien departed from the essential requirements of the law. because the contractor was entitled to proceed with its claim of lien against the condominium association as representative of the unit owners).

As the Petitioners conceded, the relationship between Premier Finishes and PFI Construction was not made clear by way of the initial pleadings. Section 713.08(4)(b) permits the amendment of a claim of lien “during the period allowed for recording such claim of lien, provided that such amendment shall not cause any person to suffer any detriment by having acted in good faith in reliance upon such claim of lien as originally recorded.” However, the time period for amendment has expired, and thus Premier Finishes could not record an amended claim of lien. See generally Trintec, 992 So.2d at 279, 282 (finding that since the contractor was entitled to a claim of lien but could not record an amended claim of lien outside of the prescribed statutory time window, reinstatement of the lien was necessary to prevent the loss of the contractor’s statutory remedy); see also Stunkel v. Gazebo Landscaping Design, Inc., 660 So.2d 623, 625-26 (Fla.1995) (noting that strict compliance with Construction Lien Law’s time requirements is necessary since “[c]on-tracting parties need certainty about when time periods for notification begin”).

Since Premier Finishes is now forever barred from amending the claim of lien, we must address section 713.08(4)(a), which provides that “[t]he omission of any of the foregoing details or errors in such claim of lien[] shall not, within the discretion of the trial court, prevent the enforcement of such lien as against one who has not been adversely affected by such omission or error.” (Emphasis added.) Mr. Maggirias argues that the Construction Lien Law requires strict compliance. See Home Electric of Dade Cnty., Inc. v. Gonas, 547 So.2d 109, 111 (Fla.1989). However, absent a showing of prejudice, a deficiency, error, or omission will not invalidate the lien. See Johnson & Bailey Architects P.C. v. Se. Brake Corp., 517 So.2d 776, 778 (Fla. 2d DCA 1988) (holding that a claim of lien will not be defeated because it contains an omission absent a showing of prejudice against the owner); Mid-State Contractors, Inc. v. Halo Dev. Corp., 342 So.2d 1078, 1080 (Fla. 2d DCA 1977) (holding that the “technical fulfillment” of the statutory requirements in a claim of lien is not required where lienor substantially complied with requisites and there is no showing of prejudice against owner).

The Petitioners specifically asserted at the hearing on the motion to dismiss that there had been no showing of adverse effect. However, the circuit court failed to make a specific finding of such. See Stunkel, 660 So.2d at 627 (“[T]he trial court must determine whether, by a preponderance of the evidence, the faulty claim of lien adversely affected the [owner].”); see also Midr-State Contractors, 342 So.2d at 1080 (holding that the party against whom the lien is asserted has the burden to prove, by a preponderance of the evidence, that it has been adversely affected by the error or omission). This factual question must “be more fully explored in the trial court by pleading and proof so that the trial court can pass upon the efficacy thereof.” Royal Ambassador Condo. Ass’n, Inc. v. E. Coast Supply Corp., 495 So.2d 932, 935 (Fla. 4th DCA 1986).

The Petitioners did allege in the initial complaint that Premier Finishes entered into the contract with the Owner, despite the fact that PFI Construction is the named contractor in the contract. And though the initial complaint was filed by Premier Finishes, the name is repeatedly abbreviated as “PFI” throughout the complaint. Additionally, the lien foreclosure claim provides a description of the property, which matches the description provided in the contract and in the claim of lien, both attached as exhibits to the complaint. Finally, both the contract and the claim of lien identify the same owner, the Soulos Family Trust. Thus, based solely upon the initial complaint and exhibits attached thereto, it is unlikely that Mr. Maggirias would be unable to deduce the relationship between Premier Finishes and PFI Construction. Cf. Johnson & Bailey Architects, 517 So.2d at 778 (holding that the failure to include a legal description of the property on the lien was unlikely to adversely affect the owner because the lien referenced the contract upon which it was based); George J. Motz Constr. Corp. v. Coral Pines, Inc., 232 So.2d 441, 443 (Fla. 4th DCA 1970) (holding that the owner was not adversely affected as a result of the error in the lienor’s name because the name on the lien and that on both the contract and complaint were sufficiently similar to apprise the owner as to whom had asserted the lien).

III. Conclusion

Though the circuit court dismissed the lien foreclosure count without prejudice, permitting amendment, by simultaneously discharging the lien and lis pendens, it deprived the Petitioners of their statutory basis for the claim. This resulted in material injury to the Petitioners that cannot be remedied on postjudgment appeal and is thus appropriate for certiorari relief. See Phoenix Walls, Inc. v. Liberty Pasadena, LLC, 980 So.2d 1286, 1289 (Fla. 2d DCA 2008); Trintec, 992 So.2d at 282; see also Loidl v. I & E Grp., Inc., 927 So.2d 1016, 1017 (Fla. 2d DCA 2006) (holding that certiorari is the proper means to challenge an order discharging a lis pendens).

Since it appears Premier Finishes is entitled to proceed with the claim of lien, the circuit court departed from the essential requirements of the law by depriving the Petitioners of their statutory remedy without determining whether Mr. Maggirias was adversely affected by the discrepancy between the named lienor on the claim of lien and the named contractor on the contract. Accordingly, the petition for writ of certiorari is granted, the order rendered on February 26, 2013, is quashed to the extent that it discharges the claim of lien and lis pendens founded upon said claim of lien, and the matter is remanded for further proceedings consistent with this opinion.

Petition granted; order quashed in part; remanded.

DAVIS, C.J., and SLEET, J., Concur.

      . §§ 713.001-.37, Fla. Stat. (2010).

      . Due to the narrow standard of review on a petition for writ of certiorari, our ruling is limited to the issue of the enforceability of a contract entered into under a fictitious name and the validity of a lien based thereon. We otherwise express no opinion as to the enforceability of the contract or Premier Finishes’ legal ability to pursue the lien.

      .With the amended complaint before us, we note that the Petitioners have included a specific allegation that Premier Finishes does business under the fictitious name PFI Construction. It is further alleged that Premier Finishes entered into the contract with the Owner under said fictitious name, making Premier Finishes the actual party to the contract.

        . A claim of lien may not be recorded “later than 90 days after the final furnishing of the labor or services or materials.” § 713.08(5). It is undisputed that the work was completed in February 2012.

      . See generally § 713.08(1)-(3).