author: JAMES, J.,

text:
    Rumond Rashad McNAIR a/k/a Rumond McNair a/k/a Rumond R. McNair, Appellant v. STATE of Mississippi, Appellee.
    No. 2012-KA-00856-COA.
    Court of Appeals of Mississippi.
    March 25, 2014.

      Clarence Terrell Guthrie III, Ridgeland, attorney for appellant.
    Office of the Attorney General by Laura Hogan Tedder, attorney for appellee.
    Before LEE, P.J., BARNES, ISHEE and JAMES, JJ.
   JAMES, J.,

for the Court:

¶ 1. Rumond McNair was found guilty of forcible rape, and sentenced to thirty-five years of incarceration. McNair filed a pretrial motion to offer additional evidence, and the trial court denied his motion. McNair now appeals raising the following issues: (1) whether the trial court erred in prohibiting McNair from entering additional evidence; (2) whether McNair had ineffective assistance of counsel; and (3) whether the evidence presented at trial was insufficient to convict McNair beyond a reasonable doubt. We find the issues raised to be without merit, and affirm.

FACTS

¶ 2. On February 20, 2011, Lena Johnson left her home on foot to visit a neighbor, Jack Herd. Lena passed through the grounds of the local school on the way to Herd’s house. After she reached Herd’s back door, she heard McNair calling out to her saying that she dropped something in the backyard. After she told her friend Mandi that she was going to look for the item she dropped, she followed McNair back to the schoolyard. She asked McNair where she dropped the item. She looked for the item for a short time and decided to look for it the next morning. As she was leaving, McNair grabbed her wrist and put a gun to her neck. He told her, “Bitch you’re going to give it up.” McNair took off Lena’s shoes, and Lena took off her jeans and panties. McNair then forced Lena to have sexual intercourse with him.

¶ 3. Lena went back to Jack’s house partially dressed. Lena told her friend Mandi what happened with McNair, whom she recognized by his street name, “Mon.” Lena also told her daughter what happened with McNair. Lena initially did not go to the police or hospital. Four days later Lena spoke with the police. Pictures were taken of bruises on Lena’s arms and legs.

¶ 4. An arrest warrant was issued for McNair, and he was taken into custody on February 28, 2011. Once in custody, McNair stated that on February 20, 2011, at 7 p.m. he was at his grandmother’s house. The police informed McNair that there were witnesses that placed him at Herd’s house at the time of the incident. McNair then admitted to having sex with Lena. McNair told police that he was walking across the schoolyard when he saw Lena standing alone and crying, and he tried to talk to her. But she started to take his clothes off, and they had consensual sex.

¶ 5. DNA testing was conducted on the underwear that Lena was wearing the night of the incident. McNair’s DNA was present on Lena’s underwear. McNair told police that he did not know Lena before they had sex. Before trial, but after discovery had been conducted, McNair claimed that prior to the evening of the incident, he and Lena had engaged in sexual intercourse on numerous occasions and sometimes traded drugs for sex. According to McNair, on the night of the incident, he and Lena were crossing the schoolyard when Lena asked him for crack cocaine in exchange for sex. McNair agreed to the arrangement and gave Lena crack cocaine after they had intercourse.

¶ 6. On January 18, 2012, the day before his trial was to begin, McNair sought to have his statements about prior liaisons with Lena and the exchange of drugs admitted into evidence. The trial court excluded the statements because of McNair’s failure to comply with the requirements of Mississippi Rule of Evidence 412. McNair did not give the State fifteen days’ notice before trial and failed to attach the required written narrative to the motion. As a result, McNair was not permitted to testify regarding any past sexual behavior between him and Lena or prior drug use.

¶ 7. McNair’s trial counsel was instructed to make any proffer related to the evidence that had previously been excluded at the end of the first day of trial. Trial counsel then proffered what McNair would have testified to if he were allowed to testify further about Lena’s past sexual history and drug transactions. At the conclusion of the trial, the jury found McNair guilty of forcible rape, and the trial court sentenced him to a term of thirty-five years in the custody of the Mississippi Department of Corrections. McNair filed a motion for a judgment notwithstanding the verdict (JNOV) or, in the alternative, a new trial. The post-trial motion was denied. McNair appeals.

STANDARD OF REVIEW

¶ 8. “Denials of motions for a JNOV or a new trial involve two different standards of review. We review denials of motions for a new trial based on the weight of the evidence, while we review denials of motions for a JNOV based on the sufficiency of the evidence.” Braggs v. State, 121 So.3d 269, 272 (¶ 6) (Miss.Ct.App.2013). The trial court has broad discretion over the admission of evidence, and we will not reverse absent an abuse of discretion. Hargett v. State, 62 So.3d 950, 952 (¶ 7) (Miss.2011).

DISCUSSION

I. Whether the trial court erred in excluding evidence related to the victim’s prior sexual history and drug use.

¶ 9. Prior to trial, McNair sought to introduce evidence that he and Lena had consensual sex in the past in exchange for drugs. According to McNair, on the night of February 20, 2011, Lena approached him for sex. McNair agreed to have sexual intercourse, after which he gave Lena cocaine and they parted ways.

¶ 10. The trial court denied McNair’s motion to enter the testimonial evidence, excluding McNair from testifying to any prior sexual relations or drug transactions between him and Lena. McNair argues that the trial court erred in denying his motion and, in doing so, prevented him from presenting his theory of the case at trial.

¶ 11. According to the Mississippi Rules of Evidence, in criminal cases involving sexual offenses, reputation or opinion evidence of past sexual behavior is generally inadmissible. M.R.E. 412(a). But past sexual behavior between a victim and the accused may be admissible provided that the evidence is specifically being introduced for the purpose of proving consent. M.R.E. 412(b)(2)(B).

¶ 12. Here, McNair sought to enter evidence regarding past liaisons with Lena to prove that the intercourse was consensual. However, Mississippi Rule of Evidence 412(c) requires that the accused submit a written motion not less than fifteen days before trial, and the motion must contain a written narrative of the offer of proof. McNair failed to follow the proper procedure by filing the motion one day before trial. Further, there is no written narrative that includes the proof that McNair sought to enter into evidence. Id.

1Í13. The prosecution argued that a proper response could not be effectively made without a timely and full disclosure of the testimony. The State was not provided any evidence on when the sexual acts allegedly occurred. The lack of a timely and full disclosure of this information made it impossible to determine whether the evidence should have been admitted.

¶ 14. The trial court found that the testimony offered by McNair was not newly discovered evidence. The trial court stated:

This is evidence that is coming from the Defendant’s mind, he knows these things, and ... there’s nothing to justify the Defense from not having filed the motion and putting a written offer of proof with it to give the State an opportunity to properly address this and be prepared to address it at any hearing that might have been required when it’s just filed that day before without the necessary attachment.

The trial court properly denied the defense attorney’s request to introduce evidence of the victim’s prior sexual activity or drug use. However, McNair was allowed to testify as to the events that occurred on the day of the rape. The trial court properly excluded evidence relating to the prior sexual activity and drug use of the victim.

II. Whether McNair had ineffective assistance of counsel.

¶ 15. McNair next argues that his trial counsel was ineffective in seeking to admit or proffer the testimonial evidence about Lena’s sexual history. McNair argues that his trial counsel did not make a complete proffer of evidence when he was given the opportunity at the end of the first day of trial. He also argues that trial counsel did not properly object to certain testimony, and this failure allowed improper character evidence to be admitted about him. Due to the serious nature of the charges that McNair was facing, McNair contends these errors proved to be detrimental.

¶ 16. When an ineffective-assistance-of-counsel claim is brought on direct appeal, the merits of the claim should be “addressed only when ‘(1) the record affirmatively shows ineffectiveness of constitutional dimensions, or (2) the parties stipulate that the record is adequate to allow the appellate court to make the finding without consideration of the findings of fact of the trial judge.’ ” Gill v. State, 126 So.3d 128, 138-34 (¶27) (Miss.Ct.App. 2013). After reviewing the record, we find that neither requirement is satisfied, and we deny relief on this issue and dismiss McNair’s claim without prejudice. Id. at 134 (¶ 27). McNair may present this claim in a motion for post-conviction collateral relief if he sees fit.

III. Whether the evidence presented at trial was insufficient to convict McNair beyond a reasonable doubt.

¶ 17. Finally, McNair asserts that the evidence presented at trial was insufficient to support his conviction beyond a reasonable doubt. Although not listed as an assignment of error, McNair also argues under this issue that the jury did not get to hear the entire story, and the guilty verdict is contrary to the weight of the evidence offered at trial. As a result, he contends, his motion for a JNOV or a new trial should have been granted.

¶ 18. A motion for a JNOV raises the issue of whether or not the evidence is sufficient. Johnson v. State, 29 So.3d 738, 749 (¶ 35) (Miss.2009). As a result, “the relevant question is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” Id.

¶ 19. We find that there was sufficient evidence presented to support McNair’s conviction of rape. The Mississippi Supreme Court has held that “[a]n individual may be found guilty of rape on the uncorroborated testimony of the prosecuting witness, where the testimony is not discredited or contradicted by other credible evidence.” Parramore v. State, 5 So.3d 1074, 1077 (¶ 12) (Miss.2009). Lena’s testimony was corroborated by her daughter, her friend Mandi, bruises found on her arms and legs, and DNA evidence. Therefore, we find there was sufficient evidence to support McNair’s conviction of rape.

¶ 20. In the same motion in which he requested a JNOV, McNair asked for a new trial in the alternative. In the motion, McNair argued that the verdict of the jury was contrary to the overwhelming weight of the evidence. The Mississippi Supreme Court has stated that in reviewing this issue, the appellate court “will only disturb a verdict when it is so contrary to the overwhelming weight of the evidence that to allow it to stand would sanction an unconscionable injustice.” Bush v. State, 895 So.2d 836, 844 (¶ 18) (Miss.2005). Here, Lena’s testimony is supported by the testimony of her daughter and Mandi, and by DNA evidence. Viewing the evidence most favorably to the verdict, we find that the verdict is not contrary to the overwhelming weight of the evidence.

¶ 21. These issues are without merit.

CONCLUSION

¶ 22. We find that the trial court did not abuse its discretion in excluding the evidence offered by McNair. The motion to offer evidence was not filed in a timely manner, and no narrative was attached to the motion. We also find that we cannot address the merits of McNair’s ineffective-assistance-of-counsel claim because it failed to meet the standards previously articulated by this Court. Finally, we find that there was sufficient evidence to support McNair’s conviction, and the conviction was not against the weight of the evidence. The victim’s testimony was corroborated by witnesses and was not discredited. Accordingly, the judgment of the Rankin County Circuit Court is affirmed.

¶ 23. THE JUDGMENT OF THE RANKIN COUNTY CIRCUIT COURT OF CONVICTION OF RAPE AND SENTENCE OF THIRTY-FIVE YEARS IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS, WITH TEN YEARS SUSPENDED, FOLLOWED BY FIVE YEARS OF SUPERVISED PROBATION, IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLANT.

LEE, C.J., IRVING AND GRIFFIS, P.JJ., BARNES, ISHEE, ROBERTS, CARLTON, MAXWELL AND FAIR, JJ„ CONCUR.

      . The Court of Appeals declines to identify sexual-assault victims. In the interest of the victim’s privacy, the victim’s name has been substituted with an alias.


source: Caselaw Access Project

license: Public Domain

text:
    Jonathan MOSBY a/k/a Johnathan Mosby, Appellant v. STATE of Mississippi, Appellee.
    No. 2012-KA-00941-COA.
    Court of Appeals of Mississippi.
    March 25, 2014.

      Office of State Public Defender by George T. Holmes, Justin Taylor Cook, attorneys for appellant.
    Office of the Attorney General by Laura Hogan Tedder, attorney for appellee.
    Before IRVING, P.J., MAXWELL and JAMES, JJ.
   JAMES, J.,

for the Court:

¶ 1. Jonathan Mosby was convicted by a jury in the Washington County Circuit Court on one count of sexual battery and three counts of child fondling. Mosby was sentenced to thirty years for sexual battery and to fifteen years for each count of fondling, with all sentences to run consecutively. Mosby now appeals. Finding Mos-by’s assignments of error to be without merit, we affirm the judgment of the circuit court.

FACTS AND PROCEDURAL HISTORY

¶ 2. On April 4, 2006, I.B., an eleven-year-old minor child, reported to her teacher that she had been touched sexually by Mosby, a family friend. School officials contacted the Greenville Police Department and I.B.’s mother, Laura Brown. Lieutenant Misty Litton led the investigation for the Greenville Police Department. Litton arranged for I.B. and her three siblings to undergo forensic interviews at a family-crisis center in Oxford, Mississippi. During the interview, I.B.’s brother, S.B., also reported improper sexual contact with Mosby.

¶ 3. Mosby was arrested on April 14, 2006, and charged with one count of child fondling. After Mosby’s ari'est, S.B. told the police that another child, D.W., had confided to him that he had been inappropriately touched by Mosby. The police interviewed D.W., and he reported being touched sexually by Mosby on several occasions in 2005. On June 14, 2010, Mosby was indicted on one count of sexual battery and three counts of fondling.

¶ 4. A jury trial was held on April 12-14, 2011, in the Circuit Court of Washington County. At trial, Brown testified that Mosby was a childhood friend and was like a brother to her. She testified that Mosby would often take her children to eat at restaurants, and the children would often spend the night at Mosby’s house. I.B. testified that, on a night in February 2006, Mosby entered the room where I.B. slept, carried her into his bedroom, and sexually assaulted her by fondling her breast and penetrating her vagina with his fingers.

¶ 5. S.B. also testified at trial. He stated that the last time that he stayed at Mosby’s house, Mosby climbed on top of him and rubbed Mosby’s penis against S.B.’s penis. D.W. testified about several incidents of inappropriate sexual contact that occurred in 2005, when he spent time at Mosby’s house. D.W. also testified to a conversation he had with Mosby in July 2009, during which Mosby asked D.W. to lie about being touched.

¶ 6. The jury found Mosby guilty on all four counts named in the indictment. Mosby was sentenced to thirty years for sexual battery and to fifteen years on each count of fondling, with all sentences to run consecutively. Mosby filed a post-trial motion for a judgment notwithstanding the verdict (JNOV)) a new trial, reconsideration of the sentence, and reasonable bail pending an appeal. This motion was denied. Mosby now appeals raising the following issues: (1) whether the trial court erred in overruling his motion for a JNOV; (2) whether the jury instructions were invalid; (3) whether the trial court misapplied Mississippi’s tender-years exception to the hearsay rule; and (4) whether his convictions for the sexual battery and fondling of I.B. violated his double-jeopardy rights. Finding no error, we affirm.

DISCUSSION

I. Whether the trial court erred in overruling Mosby’s motion for a JNOV.

¶ 7. Mosby asserts that the trial court erred in overruling his motion for a JNOV as to the fondling charges in Count III and Count IV, arguing that the State failed to prove the date on which the instances of fondling occurred. Thus, Mos-by is challenging the legal sufficiency of the evidence.

¶ 8. A motion for a JNOV implicates the legal sufficiency of the evidence. Arbuckle v. State, 894 So.2d 619, 622 (¶ 16) (Miss.Ct.App.2004) (citing Bullins v. State, 868 So.2d 1045, 1048 (¶ 12) (Miss.Ct.App. 2004)). The Mississippi Supreme Court has held that “[w]hen reviewing a case for the sufficiency of the evidence, ‘the relevant question is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.’ ” Parker v. State, 962 So.2d 25, 26 (¶ 8) (Miss.2007) (quoting Bush v. State, 895 So.2d 886, 848 (¶ 16) (Miss.2005)). Additionally, “the evidence must show ‘beyond a reasonable doubt that [the] accused committed the act charged, and that he did so under such circumstances that every element of the offense existed; and where the evidence fails to meet this test it is insufficient to support a conviction.’ ” Id. The evidence will be deemed to have been sufficient if, keeping in mind the reasonable-doubt standard, “reasonable and fair-minded [jurors] in the exercise of impartial judgment might reach different conclusions on every element of the offense[.]” Id.

¶ 9. Count III charged Mosby with fondling D.W. between the first day of September 2005 and the thirty-first day of January 2006. D.W. testified to several instances of inappropriate touching that occurred in 2005 when he spent time at Mosby’s house. D.W. testified that on one occasion, Mosby fondled his penis while D.W. was attempting to apply lotion to a rash on his thigh. On another occasion, while D.W. was asleep in Mosby’s bed, Mosby rolled on top of him, “humped” him, and placed his penis on D.W.’s buttocks area. D.W. testified that one night, while he was asleep in Mosby’s bed, he awoke to find Mosby attempting to remove D.W.’s penis from his boxer shorts. According to D.W. these events occurred when D.W. was eleven and twelve years old, just prior to his moving to Oklahoma in January 2006.

¶ 10. Likewise, Count IV charged Mos-by with fondling S.B between the first day of October 2005 and the thirty-first day of March 2006. S.B. testified that he began spending time at Mosby’s house when he was seven or eight years old. S.B. testified that he stopped going to Mosby’s house as a result of an incident that occurred in 2006. S.B. stated that he was in bed with Mosby and that Mosby climbed on top of him. S.B. described the event as follows:

[Mosby] rolled on top of me[,] ... [and] the only thing I felt moving was his waist. He was holding [me] so tight I couldn’t even move[;] ... he was gripping ... [me] ... like he was mad at me for doing something .... And the only thing I felt was his waist and his penis against mine.

S.B. testified that when Mosby fell asleep, he sneaked out of bed and called Brown, his mother, to come pick him up. According to Brown’s testimony, this occurred in late February or early March 2006. Thus, S.B.’s testimony, taken together with Brown’s, places the event within the time frame set forth in the indictment.

¶ 11. Nevertheless, we have held that “an allegation of the date ‘of the offense is not an essential element of the offense charged in the indictment.’ ” Faulkner v. State, 109 So.3d 142, 149 (¶ 28) (Miss.Ct.App.2013) (quoting Daniels v. State, 742 So.2d 1140, 1143 (¶ 10) (Miss.1999)). Furthermore, “failure to precisely prove an offense occurred during a specific time period is not grounds for reversal. Within reasonable limits, proof of any date before the return of the indictment is sufficient.’ ” Id. We find that D.W.’s testimony that the events occurred in the months prior to his moving to Oklahoma in January 2006, and S.B.’s testimony that he was fondled the last time he stayed with Mos-by, which was established by Brown’s testimony to be late February or early March 2006, sufficiently placed Mosby’s conduct within charged time frame in order to sustain the convictions on Count III and Count IV. Accordingly, we find this issue to be without merit.

II. Whether the jury instructions were invalid.

¶ 12. Mosby next argues that the jury instructions were “facially invalid by their failure to note a specific date.” The element instructions, Jury Instructions 3-6, do not contain a specific date on which the offenses occurred, but instead contain the phrase “on or about the date testified about.” Mosby argues that the instructions, as given, were invalid, asserting “the State was required to prove that the alleged acts occurred during the time frame in which they were alleged in the indictment .... [The State] cannot skirt that obligation by filing jury instructions that contain no reference whatsoever to a specific date.”

¶ 13. “In determining whether error lies in the [giving] or refusal of various instructions, the instructions actually given must be read as a whole. When so read, if the instructions fairly announce the law of the case and create no injustice, no reversible error will be found.” Johnson v. State, 823 So.2d 582, 584 (¶ 4) (Miss.Ct.App.2002).

¶ 14. We note that Mosby is procedurally barred from appellate review of this issue, having failed to object in the trial court to any defect in the jury instructions. See Davis v. State, 909 So.2d 749, 752 (¶ 13) (Miss.Ct.App.2005). Therefore, “any objection to this Court is now waived.” Id. Mosby’s waiver notwithstanding, for the reasons set forth below, we find no error in the jury instructions.

¶ 15. In support of his argument, Mos-by points to our decision in Moses v. State, 795 So.2d 569 (Miss.Ct.App.2001). Particularly, Mosby points to a passage in which we stated that “we would also instruct the trial court that it is even more important that a specific date be included in the jury instructions than in the indictment.” Id. at 574 (¶ 21) (quoting Wilson v. State, 515 So.2d 1181, 1183 (Miss.1987)). However, unlike here, the jury instructions in Moses contained no reference to any date. As we noted in the opinion:

The trial court only offered one generic instruction as to the elements of each of the various crimes set out in the indictment. None of these few pattern instructions purported to relate to a particular count in the indictment, either by reference to a date or to any particular set of facts .... Nowhere in the instructions is there a mention of a date or range of dates for any particular offense or any guidance to the jury as to how it was to relate any particular piece of evidence to that specific count in the indictment. It would be impossible, on the face of this record, to undertake any meaningful analysis of whether the State met its burden of proof on any count since there is no logical means by which the evidence may be tied to a particular incident.

Id. at 573-74 (¶ 21). That is not so in the case before us. Here, each count of the indictment contained a date or range of dates on which the offense purportedly occurred. The instructions contained the phrase “on the date testified about,” which is a reference to a date or range of dates, which the jury could determine from the evidence presented at trial. Furthermore, in a fondling or sexual-battery case, an allegation of the date of the offense “is not an essential element of the offense charged in the indictment.” Faulkner, 109 So.3d at 149 (¶ 28). We find that the jury instructions, as given, correctly stated the law as to sexual battery and fondling. Accordingly, we find no merit to this issue.

III. Whether the trial court misapplied the tender-years exception to the hearsay rule.

¶ 16. Mosby next argues that the trial court misapplied the tender-years exception to the hearsay rule when it found that S.B. and D.W. were of tender years. Mosby argues that S.B. and D.W. were not entitled to the presumption of tender years because, although S.B. and D.W. both testified that they were twelve years old at the time the statements were made, they were actually thirteen years old. Therefore, pursuant to Mississippi Buie of Evidence 808(25), the trial court was required to make an on-the-record finding of their tender-years status. Mosby argues that the trial court’s tender-years determination regarding S.B. and D.W. was brief and contained no findings as to why either fell under the tender-years exception to the hearsay rule.

¶ 17. This Court employs “an abuse-of-discretion standard when reviewing claims that the trial judge erred by admitting hearsay.” White v. State, 48 So.3d 454, 456 (¶ 9) (Miss.2010) (internal citations omitted).

¶ 18. Rule 803(25), also known as the tender-years exception, provides:

A statement made by a child of tender years describing any act of sexual contact performed with or on the child by another is admissible in evidence if: (a) the court finds, in a hearing conducted outside the presence of the jury, that the time, content, and circumstances of the statement provide substantial indicia of reliability; and (b) the child either (1) testifies at the proceedings; or (2) is unavailable as a witness: provided, that when the child is unavailable as a witness, such statement may be admitted only if there is corroborative evidence of the act.

¶ 19. The Mississippi Supreme Court has held that “there is a rebuttable presumption that a child under the age of twelve is of tender years.” Veasley v. State, 735 So.2d 432, 436 (¶ 16) (Miss.1999). The supreme court has further held:

Where an alleged sexual abuse victim is twelve or older, there is no such presumption and the trial court must make a case-by-case determination as to whether the victim is of tender years. This determination should be made on the record and based on a factual finding as to the victim’s mental and emotional age. If the court finds that the declarant is of tender years, then it must still rule on the Rule 803(25)(a) and (b) factors before admitting the testimony.

Veasley, 735 So.2d at 436 (¶ 16).

¶ 20. Here, a tender-years hearing was held outside the presence of the jury. During the hearing, the court heard testimony from I.B., S.B., D.W., Brown, and several other witnesses. As to S.B. and D.W., the court found as follows:

Now, on the issue of the statements of [D.W.] to [S.B.,] ... I find that [D.W.] was a child of tender years when this statement was made, as [were D.W.] and [S.B.] at the time ... of these occurrences back in [2006], so balancing all of these factors of the statements between [D.W.] to [S.B.] and vice versa, I think those are admissible. The statements of [D.W.] to ... [Litton,] ... I don’t think that’s admissible, because ... [D.W.] was a child of tender years in [2006] when all this took place but he wasn’t, I believe, in [2009] because he can testify for himself.

¶ 21. Therefore, the trial court clearly made an affirmative finding of reliability concerning the statements of D.W. and S.B. Furthermore, Mosby does not assert that he was in any way prejudiced by the alleged misapplication of the tender-years exception. Accordingly, this issue is without merit.

IV. Whether Mosby’s convictions for the sexual batteiy and fondling of I.B. violated his double-jeopardy rights.

¶ 22. Finally, Mosby argues that fondling is a lesser-included offense of sexual battery; therefore, his separate convictions for sexual battery and fondling amount to multiple punishments violating his constitutional protections against double jeopardy. In support of his argument, Mosby cites to Friley v. State, 879 So.2d 1031, 1035 (¶ 17) (Miss.2004), in which the Mississippi Supreme Court found that under the “particular circumstances” of that case, “molestation is a lesser-included offense of sexual battery[.]”

¶ 23. Count I charged Mosby with the fondling of I.B. pursuant to Mississippi Code Annotated section 97-5-23 (Rev. 2006). Section 97-5-23(1) provides:

Any person above the age of eighteen (18) years, who, for the purpose of gratifying his or her lust, or indulging his or her depraved licentious sexual desires, shall handle, touch or rub with hands or any part of his or her body or any member thereof, any child under the age of sixteen (16) years, with or without the child’s consent, or a mentally defective, mentally incapacitated or physically helpless person as defined in Section 97-3-97, shall be guilty of a felony and, upon conviction thereof, shall be fined in a sum not less than One Thousand Dollars ($1,000.00) nor more than Five Thousand Dollars ($5,000.00), or be committed to the custody of the State Department of Corrections not less than two (2) years nor more than fifteen (15) years, or be punished by both such fine and imprisonment, at the discretion of the court.

Miss.Code. Ann. § 97-5-23(1). Count II charged Mosby with the sexual battery of I.B. The sexual-battery statute provides that “[a] person in guilty of sexual battery if he or she engages in sexual penetration with ... [ajnother person without his or her consent ... or [a] child under the age of fourteen (14) years .... ” Miss.Code Ann. § 97-3-95(l)(a), (d) (Rev.2006).

. ¶ 24. In Friley the Mississippi Supreme Court found, under the “particular circumstances” of that case, that “molestation is a lesser-included offense of sexual battery,” and that “[i]t is impossible to penetrate without touching.” Friley, 879 So.2d at 1035 (¶¶ 15, 17). However, the Court later found in Tapper v. State, 47 So.3d 95, 103 (¶ 30) (Miss.2010), that “it is possible to commit an unlawful touching without committing sexual battery.”

¶ 25. Here, I.B. testified that Mosby carried her into his bedroom and removed her clothing. Mosby then began to rub and squeeze her chest area. I.B. testified that she told Mosby to stop, and that Mosby struck her in the mouth. According to I.B., Mosby “touch[ed] me all on my chest, then he had his finger down [there] and he was just ... touching me everywhere on my body[,] ... then he tried to kiss me on my face.” Later during her testimony, the following exchange took place between I.B. and the attorney for the State:

Q. Can you tell us specifically where he touched you.
A. He touched my chest and my private part.
Q. How did he touch you on your chest?
A. He was like rubbing me and squeezing me.
Q. Did he touch you any place else?
A. Just my private and up here.
Q. What did he use to touch your private?
A. His hand.
Q. Can you tell us how he touched your private?
A. His fingers, he was just moving them everywhere.
Q. At any time did his fingers enter you?
A. Yes, ma’am.
Q. And what did you feel when his fingers entered you?
A. It hurt.

We find that I.B.’s testimony establishes two distinct criminal acts in that Mosby both fondled her breast and digitally penetrated her vagina. Thus, the evidence presented in this case does not support Mosby’s argument that his convictions for fondling merge with his conviction for sexual battery. Accordingly, this issue is without merit.

CONCLUSION

¶ 26. We have found Mosby’s assignments of error to be without merit. Accordingly, we affirm the trial court’s judgment of conviction and sentence.

¶ 27. THE JUDGMENT OF THE WASHINGTON COUNTY CIRCUIT COURT OF CONVICTION OF COUNT I, FONDLING, AND SENTENCE OF FIFTEEN YEARS; COUNT II, SEXUAL BATTERY, AND SENTENCE OF THIRTY YEARS; COUNT III, FONDLING, AND SENTENCE OF FIFTEEN YEARS; AND COUNT IV, FONDLING, AND SENTENCE OF FIFTEEN YEARS, WITH ALL SENTENCES TO RUN CONSECUTIVELY IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS, IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO WASHINGTON COUNTY.

LEE, C.J., IRVING, P.J., BARNES, ISHEE, ROBERTS, CARLTON AND FAIR, JJ„ CONCUR. GRIFFIS, P.J., AND MAXWELL, J., CONCUR IN PART AND IN THE RESULT WITHOUT SEPARATE WRITTEN OPINION.

      . To protect the identities of the child victims of sexual abuse, we have substituted initials for their names.

      . The names of the victim’s immediate family members have been altered.

      . S.B. was twelve years old at the time the interview was conducted.

      . Mosby does not challenge the court’s finding that LB. was a child of tender years; therefore, we do not address that finding here.


text:
    Frederick Devon PRITCHETT a/k/a Frederick Pritchett a/k/a Frederick D. Pritchett, Appellant v. STATE of Mississippi, Appellee.
    No. 2012-KA-01998-COA.
    Court of Appeals of Mississippi.
    March 25, 2014.

      Office of State Public Defender by Benjamin Allen Súber, attorney for appellant.
    Office of the Attorney General by Laura Hogan Tedder, attorney for appellee.
    Before GRIFFIS, P.J., ROBERTS, FAIR and JAMES, JJ.
   JAMES, J.,

for the Court:

¶ 1. Frederick Devon Pritchett appeals his convictions of armed robbery, kidnapping, and auto theft. He argues the verdicts were against the weight of the evidence because of conflicting trial testimony and a lack of physical evidence connecting him to the crimes. Finding no error, we affirm.

FACTS

¶ 2. On October 21, 2011, Theresa Ivy was leaving the Cash King in Meridian, Mississippi, when a man approached her in the parking lot. The man walked up behind her as she neared her car, shoved her, and said, “B* * * *, get in the car; get in; get in.” The man was holding a gun, so she complied. She crawled over the driver’s seat and into the passenger’s seat. The man got behind the wheel, and another man got into the back seat. The driver drove off with Ivy still in the car. The men told Ivy they were going to kill her and demanded money. Ivy only had $4, which the men took. They also took Ivy’s purse, her house keys, the keys to the Cash King, her insulin, all her identification, and her cell phone. The driver drove back to the Cash King and demanded that Ivy open the safe. The men took approximately $2,500 to $2,600 in cash, as well as the store’s deposits and checks.

¶ 3. Ivy was then escorted back to her car, and the men continued driving around town. Finally, the driver stopped the car. He started to get out, but the man in the back seat stopped him, saying: “[L]et me take care of this.” The man got Ivy out of the car and told her that if she wanted to live, she would do as he said. He told her that he was going to hit her, and when he did, she must fall to the ground and remain silent. Ivy complied, and the men drove away in her car. She lay on the ground until the car was gone. She was unable to walk to find help, since the men had taken her cane. So she crawled through the woods toward a neon light. When law enforcement found her, she was covered in scratches, and her eye was bruised.

¶ 4. Ivy identified Pritchett in a photographic lineup as the man who drove her car and robbed her. Pritchett was arrested and tried. He was found guilty by a Lauderdale County jury of armed robbery, kidnapping, and auto theft. He was sentenced to thirty years for armed robbery, fifteen years for kidnapping, and ten years for auto theft. The sentences were ordered to run consecutively, all in the custody of the Mississippi Department of Corrections. Pritchett’s motion for a new trial was denied. He now appeals.

ANALYSIS

¶ 5. When reviewing the denial of a motion for a new trial, this Court “will only disturb a verdict when it is so contrary to the overwhelming weight of the evidence that to allow it to stand would sanction an unconscionable injustice.” Bush v. State, 895 So.2d 836, 844 (¶ 18) (Miss.2005). The evidence is “weighed in the light most favorable to the verdict.” Id. “A reversal on the grounds that the verdict was against the overwhelming weight of the evidence, ‘unlike a reversal based on insufficient evidence, does not mean that acquittal was the only proper verdict.’ ” Id. (quoting McQueen v. State, 423 So.2d 800, 803 (Miss.1982)). Rather, it means that “the court simply disagrees with the jury’s resolution of the conflicting testimony.” Id.

I. Conflicting Testimony

¶ 6. Pritchett argues a new trial is warranted because Ivy’s trial testimony conflicted with her statement to police officers after the incident.

¶ 7. At trial, Ivy testified that she was able to see Pritchett’s face during the incident, even though it was partially covered by a hood. She testified that Pritch-ett pushed her into her car at gunpoint, drove her around town, stole money from the Cash King, stole her purse, and eventually stole her car. Pritchett argues Ivy’s identification of him conflicts with a statement she made to Detective Mark Chand-lee. Reading from Ivy’s statement made after the incident, Detective Chandlee testified that he asked Ivy, “Would you recognize the suspects if you saw them again?” She answered, “I never got a good look at their face [sic], so I doubt it.” Pritchett argues this is sufficient to overturn the guilty verdict.

¶ 8. Taken in context, however, Ivy’s statement is more clear. First, Detective Chandlee testified that just prior to asking Ivy if she would recognize the suspects again, he had been describing the individual in the back seat. Further, on cross-examination, Detective Chandlee was questioned and testified as follows:

Q. Did [Ivy] ever say she could recognize the driver but not the guy in the back seat?
A, She was very clear that she could not recognize the guy in the back seat because he refused to let her look at him, but she gave a-somewhat of a description of the driver to me that night.
Q. All right. She did though give you a pretty thorough description of what the driver looked like other than his face; is that correct?
A. Yes, sir. She gave a description of him. That was the first question I asked her after her narrative.
Q. And that was the young, slender black-built black male, light blue hoodie or sky blue and kept his hood pulled down, wiry, kind of slender?
A. Yes, sir.
Q. And have you seen the Defendant?
A. Yes, sir.
Q. Does that description fit him?
A. Yes, sir.

¶ 9. Detective James Arrington was assigned to investigate the case. His testimony was consistent with Detective Chandlee’s testimony regarding Ivy’s identification of Pritchett:

Q. Now, tell us whether or not she indicated to you that she could identify one of the suspects.
A. She said she could identify one of the suspects.
Q. And with respect to the front seat, back seat; that is, driver or back seat, which one did she say she could identify?
A. The driver.
Q. And tell us whether or not she identified anyone from [the photographic] lineup.
A. She identified Mr. Pritchett, Frederick Pritchett.
Q. How long did it take her to pick him out?
A. Within two seconds. It was immediate.

¶ 10. At trial, Pritchett testified and denied any involvement in the crime, despite a prior written confession of guilt. When interviewed by Detective Arrington on October 27, 2011, Pritchett stated that on the day of the incident, Santrez Grady picked him up in a pickup truck. A white woman was in the passenger seat. Pritch-ett stated that he “just helped [Grady] out,” but did not rob Ivy. Pritchett signed the statement and initialed each answer. However, at trial, Pritchett denied knowledge of the crime and denied giving a statement to law enforcement. When shown the statement bearing his signature and initials, Pritchett stated that the document must have been forged by the law-enforcement officers.

¶ 11. Weighing the evidence in the light most favorable to the verdict, we cannot say that an unconscionable injustice resulted from the jury’s guilty verdict. Ivy’s testimony was consistent that she saw Pritchett’s face during the incident, and she immediately recognized him in ■ the photographic lineup. Even before she was shown the photographic lineup, she accurately described Pritchett’s appearance to Detective Chandlee. Also, when Pritchett was interviewed on October 27, 2011, six days after the incident, he was wearing a blue hoodie matching the description given by Ivy of Pritchett’s clothing. Ivy was shown the hoodie at trial and identified it as the one that Pritchett was wearing on the day of the incident. In light of these facts, we cannot say that the evidence preponderates heavily against the jury’s verdict. The trial court did not abuse its discretion in denying a new trial. This issue is without merit.

II. Lack of Physical Evidence

¶ 12. Pritchett next argues that the jury’s verdict was against the weight of the evidence because no physical evidence connected him to the crime. In support of his argument, Pritchett references the lack of fingerprint evidence. Detective Chand-lee testified that fingerprints were taken from the crime scene, but they were “par-tíais that weren’t identifiable through the State database.”

¶ 18. However, “the absence of physical evidence does not negate a conviction where there is testimonial evidence.” Graham v. State, 812 So.2d 1150, 1153 (¶ 9) (Miss.Ct.App.2002). Here, the overwhelming weight of the evidence supported the jury’s verdict, even without physical evidence. Accordingly, this issue is without merit.

¶ 14. THE JUDGMENT OF THE LAUDERDALE COUNTY CIRCUIT COURT OF CONVICTION OF COUNT I, ARMED ROBBERY, AND SENTENCE OF THIRTY YEARS; COUNT II, KIDNAPPING, AND SENTENCE OF FIFTEEN YEARS; AND COUNT III, AUTO THEFT, AND SENTENCE OF TEN YEARS, WITH ALL SENTENCES TO RUN CONSECUTIVELY IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS, AND TO PAY A FINE OF $1,000 AND RESTITUTION OF $3,456, IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO LAUDERDALE COUNTY.

LEE, C.J., GRIFFIS, P.J., BARNES, ISHEE, ROBERTS, CARLTON, MAXWELL AND FAIR, JJ„ CONCUR. IRVING, P.J., CONCURS IN RESULT ONLY.


author: STUART, Justice.

text:
    Joe ROBERTSON v. MOUNT ROYAL TOWERS, a domestic nonprofit corporation.
    1120291.
    Supreme Court of Alabama.
    June 21, 2013.

      Bruce J. McKee and James R. Moncus III of Hare, Wynn, Newell & Newton, LLP, Birmingham, for appellant.
    James C. Gray III, Karen M. Ross, and Anthony L. Watkins, Jr., of Lloyd, Gray, Whitehead & Monroe, P.C., Birmingham, for appellee.
   STUART, Justice.

Joe Robertson appeals the order of the Jefferson Circuit Court holding that his claims against Mount Royal Towers, a domestic nonprofit corporation that owns and operates a senior-living facility in Birmingham known as Mount Royal Towers, are subject to an arbitration agreement and compelling Robertson to arbitrate those claims. We affirm.

I.

In November 2008, Robertson was admitted as a resident to the skilled-nursing unit at Mount Royal Towers. During the admission process, Robertson executed a number of documents, including two optional arbitration agreements — one to govern medical-malpractice disputes and one to govern all other disputes. The arbitration agreement governing medical-malpractice disputes provided, in relevant part:

“It is understood that any dispute as to medical malpractice, that is as to whether any medical services rendered under this contract were unnecessary or unauthorized or were improperly, negligently or incompetently rendered, will be determined by submission to arbitration as provided by Alabama law and not by a lawsuit or court process except as Alabama law provides for judicial review of arbitration proceedings.”

(Emphasis added.) The arbitration agreement governing all other disputes provided, in relevant part:

“The resident and the facility further agree that any dispute arising between them from torts, contracts, or otherwise, including any claims for punitive damages and any actions brought on behalf of the resident by third-parties, but excepting claims pertaining to the amount of the facility’s charges, shall be submitted upon the request of either the resident or the facility to arbitration as provided by Alabama law.”

(Emphasis added.) Notably, both arbitration agreements provided that disputes would be submitted “to arbitration as provided by Alabama law.”

On July 26, 2010, Robertson was transported by ambulance to St. Vincent’s Hospital in Birmingham, where he was subsequently admitted to be treated for an infection. On approximately August 11, 2010, St. Vincent’s notified Mount Royal Towers that Robertson was being released; however, Mount Royal Towers informed the hospital that it no longer had a bed available for Robertson and that it could not accept him back as a resident of the facility. Space was thereafter found in a different facility in the Birmingham area, and Robertson moved to that facility upon his release from St. Vincent’s.

On March 2, 2012, Robertson sued Mount Royal Towers, asserting various claims based on the failure of Mount Royal Towers to accept him back as a resident upon his discharge from St. Vincent’s in August 2010. On April 9, 2012, Mount Royal Towers moved the trial court to stay the action and to compel Robertson to submit his dispute to arbitration pursuant to the terms of the arbitration agreements he had signed. On May 15, 2012, Robertson filed a response to that motion, arguing that the trial court should not compel arbitration because: 1) the arbitration agreements specifically state that disputes between the parties would be submitted to arbitration “as provided by Alabama law” and, Robertson argues, pre-dispute arbitration agreements are not enforceable under Alabama — as opposed to federal — law; and 2) the arbitration agreements are too vague inasmuch as they do not provide details regarding the selection of an arbitrator and the applicable rules of arbitration. Mount Royal Towers thereafter filed a reply responding to Robertson’s arguments, and a hearing on the issue of arbitrability was held on May 17, 2012. On October 26, 2012, the trial court entered an order granting Mount Royal Towers’ motion to stay the action and compelling Robertson to submit his claims to arbitration. Robertson’s subsequent motion to alter, amend, or vacate that order was denied by the trial court, and on December 7, 2012, Robertson filed his notice of appeal to this Court.

II.

The standard by which we review an order granting a motion to compel arbitration is well settled:

“We conduct a de novo review of a trial court’s order compelling arbitration. Smith v. Mark Dodge, Inc., 934 So.2d 875, 378 (Ala.2006).
“‘The party seeking to compel arbitration must first prove both that a contract calling for arbitration exists and that the contract evidences a transaction involving interstate commerce .... Once this showing has been made, the burden then shifts to the nonmovant to show that the contract is either invalid or inapplicable to the circumstances presented.’

“Smith, 934 So.2d at 378.”

Ritter v. Grady Auto. Group, Inc., 973 So.2d 1058, 1060-61 (Ala.2007). There is no dispute in this case that “a contract calling for arbitration exists and that the contract evidences a transaction involving interstate commerce.” Id. The only issue before us is, accordingly, whether Robertson has met his burden of showing that the arbitration agreements he executed are “inapplicable to the circumstances presented.” Id.

III.

Robertson first argues that the language in the arbitration agreements providing that any disputes between him and Mount Royal Towers be submitted to arbitration “as provided by Alabama law” is tantamount to a choice-of-law provision de-daring that Alabama law, not federal law, governs the interpretation and application of the arbitration agreements. And, Robertson continues, because § 8-1-41(3), Ala. Code 1975, provides that “[a]n agreement to submit a controversy to arbitration” cannot be specifically enforced, it was error for the trial court to compel arbitration of his claims. We disagree.

We first note that this Court has previously held that similar choice-of-law clauses applying to a contract as a whole — as opposed to an arbitration provision containing its own choice-of-law clause — do not have the effect Robertson urges. For example, in Jim Walter Homes, Inc. v. Saxton, 880 So.2d 428, 433 (Ala.2003), we stated:

“Saxton’s ... final argument is that the arbitration agreement is negated by the choice-of-law provision in the contract, which states the contract is to be governed by the laws of the State of Alabama. Saxton argues that because under § 8-1-41(3), Ala.Code 1975, agreements to submit future controversies to arbitration cannot be specifically enforced, the arbitration agreement cannot be enforced. However, in Allied-Bruce Terminix [Cos. v. Dobson, 513 U.S. 265, 270 (1995) ], the Supreme Court of the United States held that the Federal Arbitration Act preempts § 8-1-41(3) of the Alabama Code in a contract, like this one, that involves interstate commerce.”

See also Homes of Legend, Inc. v. McCollough, 776 So.2d 741, 747 n. 9 (Ala.2000) (“Moreover, even if the choice-of-law clause were interpreted as including Alabama substantive law, namely, Ala.Code 1975, § 8-1-41(3), and, thereby, to conflict with the arbitration provision, that statute would be preempted because it conflicts with the [Federal Arbitration Act].”). Robertson, however, argues that a separate arbitration agreement specifically incorporating Alabama law is “completely different from an ordinary choice-of-law clause that appears in the main body of a contract....” Robertson’s brief, p. 13. Although we do not agree that the difference is so vast or so meaningful, we grant it further consideration because we have not specifically addressed this issue before.

The basic premise of Robertson’s argument — that parties that have entered into an arbitration agreement may elect within that agreement to proceed in arbitration subject to the law of a designated state as opposed to federal law as set forth in the Federal Arbitration Act (“FAA”), 9 U.S.C. § 1 et seq. — is generally correct. The United States Court of Appeals for the Fifth Circuit explained this principle in Ford v. NYLCare Health Plans of Gulf Coast, Inc., 141 F.3d 243, 247-49 (5th Cir.1998):

“We will consider as a threshold matter, therefore, whether parties may designate state law to govern the scope of an arbitration clause in an agreement otherwise covered by the FAA. Clearly, they can. The federal policy underlying the FAA ‘is simply to ensure the enforceability, according to their terms, of private agreements to arbitrate.’ Volt Information Sciences Inc. v. Board of Trustees of Leland Stanford Junior Univ., 489 U.S. 468, 476, 109 S.Ct. 1248, 1254, 103 L.Ed.2d 488 (1989) (emphasis added). Indeed, the FAA was specifically designed to place arbitration agreements ‘ “upon the same footing as other contracts.’” Scherk v. Alberto-Culver Co., 417 U.S. 506, 510-11, 94 S.Ct. 2449, 2453, 41 L.Ed.2d 270 (1974) (quoting H.R.Rep. No. 96, 68th Cong., 1st Sess., I, 2 (1924)). And, ‘as with any other contract, the parties’ intentions control’ the ultimate interpretation of an arbitration clause. Mitsubishi [Motors Corp.

v. Soler Chrysler-Plymouth, Inc.], 473 U.S. [614,] 626, 105 S.Ct. [3346,] 3354 [ (1985) ]. For ‘[arbitration under the [FAA] is a matter of consent, not coercion, and parties are generally free to structure their arbitration agreements as they see fit.’ Volt, 489 U.S. at 479, 109 S.Ct. at 1256; see also Drake Bakeries, Inc. v. Local 50, Am. Bakery & Confectionery Workers Int'l AFL-CIO, 370 U.S. 254, 256, 82 S.Ct. 1346, 1348, 8 L.Ed.2d 474 (1962) (‘the issue of arbitra-bility is a question for the courts and is to be determined by the contract entered into by the parties’); Baravati v. Josephthal, Lyon & Ross, Inc., 28 F.3d 704, 709 (7th Cir.1994) (Posner, C.J.) (‘short of authorizing trial by battle or ordeal or, more doubtfully, by a panel of three monkeys, ... parties are as free to specify idiosyncratic terms of arbitration as they are to specify any other terms in their contract’).

“Applying these principles, the Supreme Court has recognized that parties may use choice-of-law provisions to designate state law to provide the procedural rules under which arbitration will be conducted. See Volt, 489 U.S. at 476, 109 S.Ct. at 1254. In Volt, the parties had entered into an agreement with a general choice-of-law clause providing that the agreement be governed by the law of the place where the subject of the agreement was located, which in that case was California. See id. at 470, 109 S.Ct. at 1251. The issue was whether a procedural rule in the California Arbitration Act, not available under the FAA, should be interpreted to apply to the arbitration agreement. The Court held that it should, stating:

“ ‘Just as [the parties] may limit by contract the issues which they will arbitrate, ... so too may they specify the rules under which that arbitration will be conducted. Where, as here, the parties have agreed to abide by state rules of arbitration, enforcing those rules according to the terms of the agreement is fully consistent with the goals of the FAA, even if the result is that arbitration is stayed where the [FAA] would otherwise permit it to go forward.’
“Id. at 479, 109 S.Ct. at 1256. As the above-quoted passage demonstrates, the Court expressly analogized the parties’ freedom to limit contractually the scope of the arbitration clause with their freedom to select the rules under which arbitration will be conducted. It follows, then, that if the parties may select the rules of arbitration through the use of choice-of-law provisions, so too may they specify the law governing interpretation of the scope of the arbitration clause. Indeed, we think that to disregard the parties’ choice of law in this respect “would be quite mimical to the FAA’s primary purpose of ensuring that private agreements to arbitrate are enforced according to their terms.’ Id.
“Consequently, the issue we must address here is whether the parties intended state law to govern the scope of their agreement to arbitrate. If the agreement between [the parties] demonstrates their intent to have the scope of the arbitration clause determined by Texas law, we must respect that choice. Only by rigorously enforcing arbitration agreements according to their terms, do we ‘give effect to the contractual rights and expectations of the parties, without doing violence to the policies behind the FAA.’ Volt, 489 U.S. at 479, 109 S.Ct. at 1256.”

(Footnote omitted.) As Ford articulates, the fundamental reasoning behind this principle is that arbitration agreements are essentially just a species of contract and, “ ‘as with any other contract, the parties’ intentions control.’ ” 141 F.3d at 247 (quoting Mitsubishi Motors Corp. v. Soler Chrysler-Plymouth, Inc., 473 U.S. 614, 626, 105 S.Ct. 3346, 87 L.Ed.2d 444 (1985)). The Supreme Court of the United States reiterated this concept in Stolt-Nielsen S.A. v. AnimalFeeds International Corp., 559 U.S. 662, 664, 130 S.Ct. 1758, 1774-75, 176 L.Ed.2d 605 (2010), when it cautioned courts and arbitrators interpreting arbitration clauses not to “lose sight of the purpose of the exercise: to give effect to the intent of the parties.”

With that goal in mind, it is evident that Robertson’s argument must fail. When interpreting a contract, a “court has a duty to accept the construction that will uphold, rather than destroy, the contract and that will give effect and meaning to all of its terms.” Homes of Legend, 776 So.2d at 746. Were we to accept Robertson’s argument that he and Mount Royal Towers, in agreeing to submit any disputes to arbitration “as provided by Alabama law,” intended to give effect to § 8-1-41(3), we would effectively be holding that, at the time they executed the arbitration agreements, they knowingly intended for those agreements to have no effect whatsoever. That is unlikely; it is far more likely that Robertson and Mount Royal Towers intended for the arbitration agreements to be enforced in a manner consistent with Alabama law because, at that time, “the application of [§ 8-1-41(3) ] had been relegated to the rare case of a purely intrastate transaction that could not be said to ‘involve commerce’ in any way.” Birmingham News v. Horn, 901 So.2d 27, 44 (Ala.2004), overruled on other grounds, Horton Homes, Inc. v. Shaner, 999 So.2d 462 (Ala.2008).

Accordingly, we reject Robertson’s argument that the language in the arbitration agreements providing that any dispute between him and Mount Royal Towers be submitted to arbitration “as provided by Alabama law” reincarnates § 8-1-41(3) and thus renders the arbitration agreements meaningless. Rather, we agree with the rationale expressed by the Supreme Court of Texas in In re Olshan Foundation Repair Co., 328 S.W.3d 883, 890-91 (Tex.2010), that generic language in an arbitration agreement indicating that the parties intended for their arbitration to be governed by “the laws of the state” or “Texas law” would not preempt the FAA because “[t]he FAA is part of the arbitration laws of Texas and can be applied to arbitration administered pursuant to the laws of Texas.” This rationale is true even more so in Alabama, where, as a result of § 8-1-43(3), we have largely “not developed rules of arbitration for dealing with pre-dispute agreements independent from the law that has developed in cases in which the [FAA] applied.” Allied-Bruce Terminix Cos. v. Dobson, 684 So.2d 102, 106 (Ala.1995). In sum, the FAA is part of the arbitration laws of Alabama and can be applied to arbitration administered “as provided by Alabama law.”

IV.

Robertson next argues that the arbitration agreements are too vague to be enforced because they make only a general call for arbitration without providing any details regarding the selection of an arbitrator or arbitrators or the applicable rules of arbitration. As explained supra, arbitration agreements are to be treated like any other contracts and, as Robertson argues, “if a court cannot discern the intentions of the parties to a contract because the contract is so vague and indefinite, the contract is void on the ground of uncertainty.” Drummond Co. v. Walter Indus., Inc., 962 So.2d 753, 774 (Ala.2006). See also Capmark Bank v. RGR, LLC, 81 So.3d 1258, 1268 (Ala.2011) (holding enforceable a contract that failed to express all the terms essential to the transaction).

However, although Robertson is correct that the arbitration agreements do not set forth all the procedural details of any arbitration that might result from the agreements, they do clearly evince the parties’ intent to submit future disputes to arbitration; that much is clear. In light of that fact, we think it appropriate to look to the FAA to fill in the gaps in the arbitration agreements so as to give effect to the expectations of the parties as expressed by those agreements. Section 5 of the FAA, in fact, provides:

“If in the agreement provision be made for a method of naming or appointing an arbitrator or arbitrators or an umpire, such method shall be followed; but if no method be provided therein, or if a method be provided and any party thereto shall fail to avail himself of such method, or if for any other reason there shall be a lapse in the naming of an arbitrator or arbitrators or umpire, or in filling a vacancy, then upon the application of either party to the controversy the court shall designate and appoint an arbitrator or arbitrators or umpire, as the case may require, who shall act under the said agreement with the same force and effect as if he or they had been specifically named therein; and unless otherwise provided in the agreement the arbitration shall be by a single arbitrator.”

(Emphasis added.) This Court has previously condoned the use of § 5 for selecting an arbitrator in Harold Allen’s Mobile Home Factory Outlet, Inc. v. Butler, 825 So.2d 779 (Ala.2002), summarized as follows in BankAmerica Housing Services v. Lee, 833 So.2d 609, 619 (Ala.2002):

“In Butler, the plaintiff signed an arbitration agreement that accorded the defendant seller the sole right to choose the arbitrator, the only limitation on that right being that ‘no arbitrator may be selected by the SELLER who shall have provided legal representative services to or for the SELLER at any time.’ 825 So.2d at 781. The trial court held that this clause, which gave the defendant alone the right to select the arbitrator, with no input from the buyer, was unconscionable. Based on § 5 of the Federal Arbitration Act (hereinafter referred to as ‘the FAA’), the trial court appointed an arbitrator for the parties. In this Court’s review of the trial court’s actions, we concluded that the trial court acted properly when it looked to § 5 of the FAA for guidance in fashioning a remedy....
“The trial court selected an arbitrator on the basis that the selection method provided by the agreement was invalid and that § 5 provided that it was the court’s duty to select an arbitrator in the absence of valid direction in the arbitration agreement. Because the portion of the arbitration agreement providing for the selection of arbitrators was found to be unconscionable and therefore invalid, the arbitration agreement no longer provided for the selection of arbitrators. Under those circumstances, this Court determined that the trial court had acted properly under the FAA by selecting an arbitrator for the parties.”

The arbitration agreements executed by the parties in this case contain no provision for selecting an arbitrator. Accordingly, we reaffirm the principle set forth in Butler that it is proper for the trial court to apply § 5 of the FAA to appoint an arbitrator when parties to a dispute have entered into an arbitration agreement that contains no valid provision for appointing an arbitrator.

Citing cases such as Rivera v. American General Financial Services, Inc., 150 N.M. 398, 259 P.3d 803 (2011), Robertson argues that appointing an arbitrator neither he nor Mount Royal Towers agreed to is an impermissible expansion of their arbitration agreements. We disagree. In Rivera, the Supreme Court of New Mexico declined to appoint an arbitrator in a case where the designated arbitral forum was unavailable, holding that “the [designated forum] was integral to the agreement to arbitrate and ... § 5 of the FAA does not allow a court to select and impose on the contracting parties a substitute arbitrator inconsistent with the terms of their contract.” 150 N.M. at 410, 259 P.3d at 815. However, this Court has also spoken on this topic, and, in Ex parte Warren, 718 So.2d 45, 49 (Ala.1998), we held that it was proper to follow the procedure set forth in § 5 of the FAA to appoint a replacement arbitrator if the arbitrator designated in the agreement was unavailable and there was “no evidence that [the parties] intended their choice of an arbitrator to be an essential term of the contract.” In the instant case, the arbitration agreements executed by Robertson and Mount Royal Towers contained no provisions for selecting an arbitrator or specifying the procedures to be followed in arbitration. We may assume, therefore, that these matters were not an integral and essential part of their agreements. This case is accordingly more akin to Ex parte Warren than Rivera because, as in Ex parte Warren, we have “only the inference that the parties agreed in general to submit their claims to arbitration.” 718 So.2d at 49. That intent of the parties is paramount and can be given effect by applying § 5 of the FAA. Robertson’s argument that the arbitration agreements are too vague to be enforced is without merit.

V.

Robertson appealed the order of the trial court holding that his claims against Mount Royal Towers are subject to an arbitration agreement and compelling Robertson to arbitrate those claims. Robertson argues that the arbitration agreements he executed with Mount Royal Towers are not valid under Alabama law and, in the alternative, that, if they are valid, they are too vague to be enforced. However, as explained supra, the arbitration agreements are valid under Alabama law, and the trial court may properly fill in “gaps” in those agreements as necessary to give effect to the parties’ agreement to arbitrate. For these reasons, the order of the trial court is hereby affirmed.

AFFIRMED.

BOLIN, PARKER, MURDOCK, SHAW, MAIN, WISE, and BRYAN, JJ., concur.

MOORE, C.J., dissents.

      . The parties dispute whether any or all of Robertson’s claims should properly be considered medical-malpractice claims and, accordingly, which arbitration agreement would govern those claims. However, because the language relevant to this appeal is the same in both agreements, it is unnecessary for us to decide that issue.

      . As Alan Scott Rau stated in Does State Arbitration Law Matter At All? Part I: Federal Preemption, ADR Currents, June 1998, at 19-20:
      "Are we to suppose that the parties to this contract agreed to arbitration, while at the same time intending to adopt a body of state law that would in all possible circumstances make their agreement to arbitrate invalid? One who believes that is capable of believing anything.”
      (Quoted in Christopher R. Drahozal, Federal Arbitration Act Preemption, 79 Ind. L.J. 393, 413 n. 153 (Spring 2004).)

      . Our holding in this regard effectively addresses the issue present — but not raised by the parties — in J.L. Loper Construction Co. v. Findout Partnership, LLP, 55 So.3d 1152, 1153 (Ala.2010), where the parties had agreed to arbitrate any disputes "in accordance with the Alabama Arbitration Act.” We stated then:
      "Predispute arbitration agreements under the Alabama Arbitration Act, §§ 6-6-1 thru -16, Ala.Code 1975, contravene Alabama law and are not specifically enforceable. See § 8-1-41(3), Ala.Code 1975, which provides that an agreement to submit a controversy to arbitration cannot be specifically enforced. See also Alafabco, Inc. v. Citizens Bank, 872 So.2d 798 (Ala.2002), reversed on other grounds by Citizens Bank v. Alafabco, Inc., 539 U.S. 52, 123 S.Ct. 2037, 156 L.Ed.2d 46 (2003). The issue of enforceability of the predispute arbitration provision agreed upon by the parties in Article 9 of the construction contract was not presented to the trial court, nor was it argued in briefs to this Court. Accordingly, we will not address that issue on appeal.”

        Id. at 1153 n. 1.

      . In contrast, Texas has adopted the Texas General Arbitration Act (“TAA”), Tex Civ. Prac. & Rem.Code, § 171.001 et seq., which contains provisions applying to pre-dispute arbitration agreements, and In re Olshan Foundation Repair, 328 S.W.3d at 891, affirmed the right of parties to elect to arbitrate pursuant to the TAA to the exclusion of the FAA. However, the Alabama Arbitration Act, § 6-6-1 et seq., Ala.Code 1975, generally applies only to post-dispute arbitration agreements. See, e.g., § 6-6-3 (“The parties must concisely state in writing, signed by them, the matter in dispute between them and that they desire to leave the determination thereof to certain persons, naming them as arbitrators. ..: ”).


author: PARKER, Justice. MURDOCK, Justice

text:
    Ex parte Tonya G. CATE. (In re Tonya G. Cate v. State of Alabama).
    1111240.
    Supreme Court of Alabama.
    June 21, 2013.

      Jack W. Torbert, Jr., of Torbert & Tor-bert, P.A., Gadsden, for petitioner.
    Luther Strange, atty. gen., and Yvonne A.H. Saxon, asst. atty. gen., for respondent.
   PARKER, Justice.

Tonya G. Cate petitions this Court for a ■writ of mandamus directing the Etowah Circuit Court (“the trial court”) to vacate its order requiring Cate to submit to an examination to determine her mental condition at the time of the capital offense she is alleged to have committed. We grant the petition and issue the writ.

I. Facts and Procedural History

Cate has been indicted for capital murder; it is undisputed that Cate has not entered a plea of not guilty by reason of mental disease or defect. Her trial was set to begin on October 24, 2011. While preparing for trial, Cate’s attorney consulted a mitigation expert, who expressed concern that Cate had not been subjected to a mental examination to determine her competency to stand trial. On September 29, 2011, Cate’s attorney filed a motion to continue the trial, requesting, among other things, that Cate be subjected to a mental examination. In the motion, Cate’s attorney did not specify that Cate was requesting a mental examination only to determine her competency to stand trial. Cate’s attorney requested a continuance to allow a mental examination to be conducted and stated in the motion:

“It is unknown at this time if there may be underlying psychological problems, conduct, disorders, depression or any other indication of mental illness. The mitigation specialist has advised that in a[ ] usual case, it takes a year to complete this investigation but that she would be willing to expedite her investigation if given until March 2012. Otherwise, the mitigation specialist has advised that she would not participate in said investigation. The mitigation expert further stated that said mental evaluation would be helpful to determine the extent, if any, of any investigation that would need to be made in regards to family psychological history.”

On October 4, 2011, the trial court entered an order requiring Cate to submit to inpatient examinations to determine her competency to stand trial and to determine her mental condition at the time of the alleged offense. On November 8, 2011, Cate’s attorney filed a motion to amend the trial court’s October 4, 2011, order, arguing that under Rule 11.2(a)(2), Ala. R.Crim. P., the trial court did not have the discretion to order Cate to submit to an examination to determine her mental condition at the time of the alleged offense because Cate had not “raised a defense of ‘not guilty by reason of mental disease or defect’ either by entry of a plea or by filing a pre-trial motion pursuant to Rule 15, [Ala. R.Crim. P.].” Rule 11.2(a)(2). On December 21, 2011, the trial court amended its October 4, 2011, order as follows:

“This matter having come before the Court on the motion of [Cate], and the Court having reviewed the file and noted that there has been no defense of not guilty by reason of mental disease or defect, and further that there has been no pre-trial motion pursuant to Rule 15[, Ala. R.Crim. P.,] requesting a mental evaluation for mental condition at the time of the alleged offense; it is hereby ordered, adjudged and decreed that the evaluation to be performed on [Cate] be limited to an outpatient evaluation of her present mental condition and competency to stand trial.”

On January 3, 2012, the State filed a motion to reconsider the trial court’s December 21, 2011, order and requested a hearing on the matter. On the same day, the State also filed a motion for examinations to determine Cate’s current mental condition and competency to stand trial and to determine her mental condition at the time of the alleged offense. Cate claims that the trial court, also on the same day, entered an order granting the State’s motion for examinations to determine Cate’s competency to stand trial and to determine her mental condition at the time of the alleged offense; a copy of this order is not, however, attached to Cate’s petition. Cate also states that she was not served with the order and that it was never included in the court file. Rather, Cate claims to have discovered the order when her attorney was contacted by the hospital that was allegedly ordered to examine Cate.

On January 12, 2012, Cate’s attorney filed a motion objecting to the order Cate alleges the trial court entered on January 3, 2012, requiring Cate to submit to a mental examination to determine her mental state at the time of the alleged offense. Cate also requested a stay of the alleged order and a hearing on the matter. Cate also argued, in the alternative, that, if such an examination occurred, her attorney be allowed to be present to advise her as to her Fifth, Sixth, Eighth, and Fourteenth Amendment rights.

The trial court set the matter for a hearing to be conducted on January 23, 2012. At the hearing, Cate withdrew her motion requesting a mental examination to determine her competency to stand trial. Cate claimed that her mitigation expert had met with her several times since her September 29, 2011, motion and that the mitigation expert no longer had any concern about Cate’s competency to stand trial. At the hearing, the trial court stayed its order requiring Cate to submit to a mental examination and requested that the parties submit briefs on the issue; both parties complied.

On February, 1, 2012, the State filed its brief in support of its motion for mental examinations to determine both Cate’s competency to stand trial and her mental condition at the time of the alleged offense. The State argued that it was entitled to have Cate submitted to the requested examinations pursuant to § 15-16-22(a), Ala. Code 1975, which states:

“(a) Whenever it shall be made known to the presiding judge of a court by which an indictment has been returned against a defendant for a capital offense, that there is reasonable ground to believe that such defendant may presently lack the capacity to proceed or continue to trial, as defined in Section 22-52-30, or whenever said judge receives notice that the defense of said defendant may proceed on the basis of mental disease or defect as a defense to criminal responsibility; it shall be the duty of the presiding judge to forthwith order that such defendant be committed to the Department of Mental Health and Mental Retardation for examination by one or more mental health- .professionals appointed by the Commissioner of the Department of Mental Health and Mental Retardation. The commissioner shall place the defendant under the observation and examination of one or more mental health professionals, each of whom is either a licensed psychologist holding a Psy.D. or Ph.D degree or a licensed physician who specializes in psychiatry. The assigned mental health professional(s) shall examine the defendant with respect to determining the presence of any mental disease or defect which, if determined to be present, would affect the capacity of the defendant to proceed or continue to trial or which would affect the defendant’s criminal responsibility at the time of the commission of the crime.”

The State also asserted the following:

“Counsel for [Cate] clearly made known to the Court in his submission of September 29, 2011, that there was reasonable ground to question [Cate’s] capacity to proceed to trial, and noted specifically in his motion that there was a question regarding ‘underlying psychological problems, conduct, disorders, depression or any other indication of mental illness.’ Once these issues have been raised, the Alabama Code section noted above requires that the Court order an inpatient evaluation. Counsel for [Cate] cannot simply withdraw the request once that issue is placed before the Court, as to do so may result in reversible error.”

(Emphasis in original.)

Cate responded on February 13, 2012, arguing that, pursuant to Rule 11.2(a), Ala. R.Crim. P., she cannot be compelled to submit to an examination to determine her mental condition at the time of the alleged offense because she had not pleaded “or raised the defense of not guilty by reason of mental disease or defect as required under Rule 11.2(a) ... in order to authorize a State mental evaluation as to the mental condition and competency of [Cate] at the time of the alleged offense.” Further, Cate addressed the State’s argument regarding § 15-16-22(a), Ala.Code 1975, as'follows:

“[T]he provisions of § 15-16-22, Ala. Code (1975)[J have no application to the present case. [Cate] has not plead[ed] not guilty by reason of mental disease or defect. At the hearing on January 23, 2012, counsel for [Cate] stated that [Cate] did not intend to raise the defense of not guilty by reason of mental disease or defect. This Court has not received notice from [Cate] in any form or fashion that [Cate] intends to raise or proceed on the defense of not guilty by reason of mental disease or defect as to criminal responsibility. [Cate] has advised the Court that her mitigation expert will be looking into [Cate’s] childhood, upbringing, education, relationships, friendships, formative and traumatic experiences, and personal psychology and present feelings for purposes of mitigation in a capital murder case. However, [Cate] and [Cate’s] counsel intend to do these investigations for purposes of the mitigation stage, if necessary, and not for purposes of a defense of mental disease or defect at the time of the alleged offense.”

On February 23, 2012, the trial court entered an order requiring Cate to submit to examinations to determine both her competency to stand trial and her mental condition at the time of the alleged offense.

On March 23, 2012, Cate filed a petition for a writ of mandamus with the Court of Criminal Appeals; the State filed a response. On June 15, 2012, the Court of Criminal Appeals denied Cate’s mandamus petition by an order of that court, Ex -parte Cate (No. CR-11-0949, June 15, 2012), — So.3d - (Ala.Crim.App.2012) (table), stating in pertinent part:

- “Cate asserts that because she withdrew her motion for a mental evaluation, [the trial court] had no authority to order a mental evaluation. Section 15 — 16— 22, Ala.Code 1975, specifically states that it is the duty of the court to order a mental evaluation when the court is given ‘reasonable grounds’ to believe that a defendant lacks the capacity to proceed at trial or when the defendant has raised the defense of ‘not guilty by reason of mental disease or defect.’ See Ex parte LaFlore, 445 So.2d 932 (Ala.1983) (‘It is equally clear that in view of Pate [v. Robinson, 383 U.S. 375 (1966)], Pierce v. State, 52 Ala.App. 422, 293 So.2d 483 (1973), cert. quashed, 292 Ala. 745, 293 So.2d 489 [ (1974) ]; and Edgerson v. State, 53 Ala.App. 581, 302 So.2d 556 (1974), a trial court has an independent duty to inquire into an accused’s state of mind when there are reasonable grounds to doubt the accused’s competency to stand trial.’ (Emphasis added.)). Section 15-16-22, Ala.Code 1975, further provides that the examination may include an evaluation of the defendant’s mental competency to proceed at trial and his/her mental state at the time of the offense.”

On June 26, 2012, Cate petitioned this Court for a writ of mandamus.

II. Standard of Review

“Mandamus 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 AmSouth Bank, N.A., 589 So.2d 715 (Ala.1991); Ex parte Day, 584 So.2d 493 (Ala.1991).”

Ex parte United Serv. Stations, Inc., 628 So.2d 501, 503 (Ala.1993).

III. Analysis

Relying upon Rule 11.2(a), set forth above, Cate argues that the trial court exceeded its discretion in compelling her to submit to an examination to determine her mental condition at the time of the alleged offense because she did not enter a plea of not guilty by reason of mental disease or defect. Cate argues that it was not within the trial court’s discretion to compel her to submit to such an examination because, Cate argues, an examination to determine a defendant’s mental condition at the time of the alleged offense is appropriate only if the defendant first raises “a defense of ‘not guilty by reason of mental disease or defect’ either by the entry of a plea or by filing a pre-trial motion pursuant to Rule 15.” Rule 11.2(a)(2).

The State relies heavily upon § 15-16-22(a), set forth above, in support of its assertion that it was within the trial court’s discretion to compel Cate to submit to an examination to determine her mental condition at the time of the alleged offense even though Cate had not pleaded not guilty by reason of mental disease or defect. The State argues that “Cate gave notice that her mitigation ‘defense,’ in the words of [§] 15-16-22(a) would ‘proceed on the basis of mental disease or defect as a defense to criminal responsibility.’ ”

Rule 11.2(a) distinguishes an examination to determine a defendant’s competency to stand trial from an examination to determine a defendant’s mental condition at the time of the alleged offense. Rule 11.2(a)(2) states that “the court on its own motion may order, or the defendant, the defendant’s attorney, or the district attorney may move for an examination into the defendant’s mental condition at the time of the offense” “[i Y the defendant has timely raised a defense of ‘not guilty by reason of mental disease or defect’ either by the entry of a plea or by filing a pre-trial motion pursuant to Rule 15.” (Emphasis added.) Under Rule 11.2(a)(2), the trial court obtains discretion to order an examination to determine the defendant’s mental condition at the time of the alleged offense only after the defendant has raised the defense of not guilty by reason of mental disease or defect. See Hugh Maddox, Alabama Rules of Criminal Procedure § 11.2 at 11 — 41 (5th ed. 2011) (“As the Rule specifically states, this examination [to determine the defendant’s mental condition at the time of the alleged offense] is triggered when a defendant, at arraignment, filed a plea of not guilty by reason of mental disease or defect....”).

Section 15-16-22(a) does not grant the trial court discretion to order a defendant to submit to a mental examination independent of the procedural framework of Rule 11.2(a). Rather, § 15-16-22(a) establishes the “duty of the presiding judge to forthwith order” a mental examination, pursuant to Rule 11.2,

“[w]henever it shall be made known to the presiding judge of a court by which an indictment has been returned against a defendant for a capital offense, that there is reasonable ground to believe that such defendant may presently lack the capacity to proceed or continue to trial, as defined in Section 22-52-30, or whenever said judge receives notice that the defense of said defendant may proceed on the basis of mental disease or defect as a defense to criminal responsibility. ...”

Under § 15-16-22(a), as under Rule 11.2(a)(2), the judge may order the defendant to submit to a mental examination to determine “the defendant’s criminal responsibility at the time of the commission of the crime” only if the trial court “receives notice that the defense of said defendant may proceed on the basis of mental disease or defect as a defense to criminal responsibility.” The duty imposed by 15-16-22(a) upon the trial court to order a mental examination of a defendant is consistent with Rule 11.2(a)(2); § 15-16-22(a) does not expand the trial court’s discretion beyond the limits established by Rule 11.2(a).

When read together, Rule 11.2(a) and § 15-16-22 stand for the proposition that a judge presiding over a capital case has a duty to order the defendant to submit to an examination to determine the defendant’s competency to stand trial when the judge has reasonable grounds to believe that the defendant may lack the competency to stand trial. Likewise, the judge presiding over a capital case has a duty to order the defendant to submit to an examination to determine the defendant’s mental condition at the time of the alleged offense once a defendant enters a plea of not guilty by reason of mental disease or defect. See Maddox, Alabama Rules of Criminal Procedure, supra.

Under the facts of this case, the trial court had reasonable grounds to believe that Cate lacked the capacity to proceed or to continue to trial, and, thus, the trial court had the discretion to order Cate to submit to an examination to determine her competency to stand trial. However, because Cate never entered a plea of not guilty by reason of mental disease or defect, the trial court did not have the discretion to order Cate to submit to an examination to determine her mental condition at the time of the alleged offense.

The State argues, as mentioned above, that Cate did raise the defense of not guilty by reason of mental disease or defect by indicating her intent to “use evidence of her mental state at the time of the crime to mitigate her sentence.” The State argues that, “[o]nce Cate had made this request, the judge was entitled to order a mental evaluation under [§] 15-1[6] — 22(a).”

The State has failed to cite any authority indicating that a capital defendant’s intent to introduce evidence at the sentencing hearing, assuming the defendant has been convicted, to prove the mitigating circumstances set forth in § 13A-5-51, Ala.Code 1975, is the same as entering a plea of not guilty by reason of mental disease or defect, and we can find no authority to support this claim. The State does rely upon Jones v. State, 43 So.3d 1258 (Ala.Crim.App.2007), in making this argument, but Jones does not support the State’s argument.

In Jones, the defendant was charged with four counts of capital murder and, in his appearance before the district court following his arrest, “entered pleas of not guilty by reason of insanity, not guilty by reason of temporary insanity, and not guilty per se.” 43 So.3d at 1279. The defendant then appeared before the circuit court and, after being arraigned in the circuit court, entered only a plea of not guilty. The defendant “also requested thirty days to file any special pleas and specifically referenced a possible plea of not guilty by reason of insanity.” Id. The State then “requested a mental examination and the defense argued that the request was premature.” Id. Over the defendant’s objection, the trial court granted the State’s request for a mental examination of the defendant.

The Court of Criminal Appeals, reviewing whether the trial court had erred in granting the State’s motion for a mental examination of the defendant, held:

“Although Rule 11.2(a)(1), Ala. R.Crim. P., applies only to defendants who are ‘before a circuit court,’ Rule 11.2(a)(2), Ala. R.Crim. P., does not. Rather, Rule 11.2(a)(2), Ala. R.Crim. P., applies ‘[i]f the defendant has timely raised a defense of “not guilty by reason of mental disease or defect.” ’ Based on the [defendant’s] not guilty by reason of insanity and not guilty by reason of temporary insanity pleas in district court, it appears that the State properly requested a mental examination even though the [defendant] had not yet entered similar pleas in the circuit court. Also, § 15-16-22, Ala.Code 1975, provides that, if a circuit court receives notice that a capital defendant ‘may proceed on the basis of mental disease or defect as a defense to criminal responsibility,’ it should order a mental examination. Based on the information the circuit court had concerning the [defendant’s] pleas in district court, the previous proceedings in the circuit court, and counsel’s reservation concerning special pleas, the circuit court could have reasonably concluded that the [defendant] might proceed on the basis of a plea of not guilty by reason of insanity. Therefore, it did not err in granting the State’s motion for a mental evaluation.”

48 So.3d at 1280.

Unlike the defendant in Jones, Cate neither entered a plea of not guilty by reason of mental disease or defect nor indicated that she intends to raise her mental condition at the time of the alleged offense as a defense to her criminal responsibility. Rather, at the January 23, 2012, hearing, Cate’s counsel stated:

“And the only way an examination as to the mental status of the defendant at the time of the alleged offense can be done is if the defense [of not guilty by reason of mental disease or defect] is affirmatively plead[ed] by the defendant. We have not raised that in this case, Your Honor.
“Back in October of last year — The only issue brought up, frankly, if you remember, we had a lot of issues raised, but there was one issue about the fact that an evaluation had not been done as to competency to stand trial and the Court ordered — It’s my understanding that’s what the Court ordered. But we did not raise that she — Never have raised, not in the District Court level and not in this level — In fact, we are representing to the Court that we are not going to be raising that defense.”

The question of Cate’s mental condition originated when Cate’s mitigation expert expressed concern regarding Cate’s competency to stand trial. Cate then requested a continuance so she could be examined to determine her competency to stand trial. Cate explicitly stated that she was not raising her mental condition at the time of the alleged offense as a defense to her criminal responsibility. Further, as set forth above, Cate also stated in her brief opposing the State’s brief in support of its motion for mental examinations to determine both Cate’s competency to stand trial and her mental condition at the time of the alleged offense that Cate would use any evidence concerning her mental condition at the time of the alleged offense only to prove mitigation at her sentencing hearing should she be convicted of the capital offense. Based on those facts, Jones is distinguishable from this case and does not support the State’s argument.

IV. Conclusion

It is undisputed that Cate has not entered a plea of not guilty by reason of mental disease or defect. Neither Rule 11.2(a)(2) nor § 15-16-22(a) give the trial court the discretion to order that Cate be subjected to a mental examination to determine her mental condition at the time of the alleged offense. Therefore, the trial court exceeded its discretion insofar as it ordered that Cate be subjected to an examination to determine her mental condition at the time of the alleged offense. Cate has demonstrated that she has a clear legal right to the relief sought. Accordingly, we grant Cate’s petition and issue the writ ordering the trial court to vacate its February 23, 2012, order insofar as it ordered that Cate be subjected to an examination to determine her mental condition at the time of the alleged offense.

PETITION GRANTED; WRIT ISSUED.

STUART, BOLIN, MAIN, WISE, and BRYAN, JJ., concur.

MURDOCK and SHAW, JJ., concur in the result.

MOORE, C.J., dissents.

MURDOCK, Justice

(concurring in the result).

I question the statement in the main opinion that “[§ ] 15-16-22(a)[, Ala.Code 1975,] does not grant the trial court discretion to order a defendant to submit to a mental examination independent of the procedural framework of Rule 11.2(a) [, Ala. R. Crim. P.].” 134 So.3d at 875 (emphasis added). I believe the dispositive question in the present case is whether notice of intention to use a mental disease or defect in the mitigation phase of a capital-murder trial is notice of intent to use that mental disease or defect “as a defense to criminal responsibility.” Because I do not read the statute as providing an affirmative answer to this question, I concur in the result.

      . Rule 11.2(a), Ala. R.Crim. P, states:
      "(a) Motions.
      "(1) Competency to Stand Trial. When a person charged with a crime is before a circuit court, the defendant, the defendant's attorney, or the district attorney may petition for, or the court on its own motion may order, an examination to assist in the determination of the defendant's present mental condition and competency to stand trial.
      “(2) Mental Condition at Time of Offense. If the defendant has timely raised a defense of 'not guilty by reason of mental disease or defect’ either by the entry of a plea or by filing a pre-trial motion pursuant to Rule 15, the court on its own motion may order, or the defendant, the defendant’s attorney, or the district attorney may move for an examination into the defendant's mental condition at the time of the offense.”

      . The Committee Comments to Rule 11.2 (as Amended Effective October 1, 1996) make the distinction between the two examinations clear: "Subsection (b)(1), which is similar to Rule 12.2(c), Fed.R.Crim.P., and 18 U.S.C. § 4241, makes it clear that the determination of the defendant’s competency to stand trial is separate and distinct from the determination of his sanity at the time of the offense.”

      . "Any provisions of this title regulating procedure shall apply only if the procedural subject matter is not governed by rules of practice and procedure adopted by the Supreme Court of Alabama.” § 15-1-1, Ala.Code 1975.

      . Section 13A-5-45(a), Ala.Code 1975, states, in pertinent part, that, "[u]pon conviction of a defendant of a capital offense, the trial court shall conduct a separate sentence hearing to determine whether the defendant shall be sentenced to life imprisonment without parole or to death.” Further, § 13A-5-45(c), Ala.Code 1975, states, in pertinent part, that “[a]t the sentence hearing evidence may be presented as to any matter that the court deems relevant to sentence and shall include any matters relating to the aggravating and mitigating circumstances referred to in Sections 13A-5-49, 13A-5-51 and 13A-5-52L Ala.Code 1975].”

      . Cate does not challenge the trial court’s order insofar as the trial court ordered that Cate be subjected to an examination to determine her competency to stand trial; thus, the portion of the trial court's order requiring Cate to submit to an examination to determine her competency to stand trial remains in effect.