author: MOORE, Judge. THOMPSON, Presiding Judge,

text:
    Lynn E. THOMAS d/b/a Anchor Comms v. AMERICAN EXPRESS BANK, FSB.
    2120117.
    Court of Civil Appeals of Alabama.
    Aug. 2, 2013.
    Lynn E. Thomas, pro se.
    Kyle Crosby Shirley of Parnell & Crum, P.A., Montgomery, for appellee.
   MOORE, Judge.

Lynn E. Thomas d/b/a Anchor Comms (“Thomas”) appeals from a judgment of the Jefferson Circuit Court (“the trial court”) in favor of American Express Bank, FSB (“American Express”). We reverse.

Background

American Express sued Thomas on October 6, 2011, asserting three counts of breach of a written contract; each count related to a separate credit account Thomas had held with American Express. American Express claimed that Thomas owed American Express a total of $25,778.86 on the three accounts, including unpaid principal, accrued interest, and attorney fees. Thomas, acting pro se, denied that he owed American Express any money.

On April 11, 2012, American Express moved for a summary judgment as to all three counts. Thomas, who by that time was represented by legal counsel, requested additional time to conduct discovery; the trial court granted Thomas’s motion. On August 10, 2012, after the parties had completed discovery, American Express supplemented its previously filed summary-judgment motion. Thomas opposed American Express’s summary-judgment motion and sought a summary judgment in his favor.

On August 27, 2012, the trial court entered a summary judgment in favor of American Express on its breach-of-contract claims; the trial court awarded American Express the amount it had requested in its complaint, i.e., $25,778.86. The trial court also expressly denied Thomas’s summary-judgment motion. Thomas timely filed a postjudgment motion, pursuant to Rule 59, Ala. R. Civ. P., which the trial court denied on September 23, 2012. Thomas timely filed his notice of appeal.

Analysis

In support of its summary-judgment motion, American Express relied on the affidavit of Walter Gibbs, who attested that he was the assistant custodian of records for American Express and that he had personal knowledge of Thomas’s accounts by virtue of his employment with American Express. Gibbs attested that Thomas’s accounts were past due in the principal amount of $19,753.76, that interest of $2,662.65 had accrued on the unpaid principal, and that Thomas owed attorney fees in the amount of $3,362.45. American Express also submitted the following documents in support of its summary-judgment motion: a copy of a monthly account statement dated June 8, 2009, for a “Blue Cash for Business Credit Card” bearing Thomas’s name and reflecting an outstanding balance of $1,174.34; a form copy of a “Blue Cash for Business Credit Card Agreement”; a copy of a monthly account statement dated June 11, 2009, for a “Platinum Delta SkyMiles Card” bearing Thomas’s name and reflecting an outstanding balance of $3,741.10; a form copy of an “Agreement Between Delta SkyMiles Credit Cardmember and American Express Bank, FSB”; a copy of a monthly account statement dated June 9, 2009, for a “American Express OPEN Line of Credit” bearing Thomas’s name and reflecting an outstanding balance of $14,838.32; and a form copy of a “Line of Credit for Business Agreement.” (We refer to the three form agreements collectively as “the card-member agreements.”)

Thomas responded by submitting his own affidavit attesting that he had requested a copy of any executed contract he was alleged to have breached but that American Express had failed to produce anything in response to that request; Thomas also attested that he had never signed a written contract with American Express. Thomas also attested that he had last used or made a payment on the Blue Cash for Business Credit Card in May 2007, that he had last used or made a payment on the American Express OPEN Line of Credit in July 2007, and that he had last-used or made a payment on the Platinum Delta SkyMiles Card in July 2007. Thomas characterized his accounts with American Express as “open accounts” and asserted that any attempts to collect on those accounts were time-barred, pursuant to the three-year statute of limitations found in Ala.Code 1975, § 6-2-37.

American Express admitted that it had no signed applications that Thomas may have submitted for the accounts at issue, American Express asserted, however, that, during discovery, Thomas had admitted requesting that the accounts be opened and that he had used the accounts. American Express further asserted that use of the accounts was governed by the card-member agreements it had submitted to the trial court, the terms of which allow American Express to recover attorney fees in the event legal action is required to collect unpaid balances. Thus, American Express asserted, by virtue of his use of the credit accounts, Thomas was liable for the unpaid principal balances, accrued interest, and attorney fees. In its responses to Thomas’s interrogatories, however, American Express admitted that Thomas’s “indebtedness on each of the three individual accounts is not based on an express agreement” and that it did “not contend that a written contract was entered into by the parties.” Based on the above evidence, the trial court entered a summary judgment in favor of American Express.

Standard of Review

“ ‘ “We review the trial court’s grant or denial of a summary judgment motion de novo.” Smith v. State Farm Mut. Auto. Ins. Co., 952 So.2d 342, 346 (Ala.2006) (citing Bockman v. WCH, L.L.C., 943 So.2d 789 (Ala.2006)). A summary judgment is proper if there is no genuine issue of material fact and the moving party is entitled to a judgment as a matter of law. Rule 56(c)(3), Ala. R. Civ. P. If the movant meets this initial burden, the burden then shifts to the nonmovant to present “substantial evidence” of a genuine issue of material fact. Ex parte Alfa Mut. Gen. Ins. Co., 742 So.2d 182, 184 (Ala.1999). Substantial evidence is “evidence of such weight and quality that fair-minded persons in the exercise of impartial judgment can reasonably infer the existence of the fact sought to be proved.” West v. Founders Life Assurance Co. of Florida, 547 So.2d 870, 871 (Ala.1989); see also § 12-21-12(d), Ala.Code 1975. In determining whether a genuine issue of material fact exists, this Court views the evidence in the light most favorable to the nonmov-ant and resolves all reasonable doubts in favor of the nonmovant. Jones v. BP Oil Co., 632 So.2d 435, 436 (Ala.1993).’ ”

Harris v. Health Care Auth. of Huntsville, 6 So.3d 468, 472 (Ala.2008) (quoting McCutchen Co. v. Media Gen., Inc., 988 So.2d 998, 1001 (Ala.2008)).

Analysis

On appeal, Thomas asserts that the trial court erred in entering a summary judgment in favor of American Express on its breach-of-contract claims. He asserts, and American Express apparently admits, that Thomas never signed a written contract or agreement with American Express and that no executed contracts exist to govern the dealings between the parties. Thomas also asserts that American Express has failed to establish that he ever specifically agreed to the terms and conditions of the cardmember agreements that were presented to the trial court. Thomas asserts that, without evidence that the parties mutually agreed to all of the necessary elements of a contract, American Express was not entitled to a judgment as a matter of law on its only theory of recovery, i.e., breach of contract.

American Express asserts that it sufficiently supported its summary-judgment motion. It asserts that its evidence establishes that a credit card was issued to Thomas on each of the three accounts and that Thomas admittedly used those credit accounts. American Express also asserts that Thomas cannot feign ignorance as to the existence of the contract terms binding the parties to those accounts because the monthly billing statements sent to Thomas contained the following language: “Certain of the periodic rates and APRs above may be variable. These rates may vary based upon the prime rate identified in the Wall Street Journal, as described in your Card-member Agreement as currently in effect.” Based on that language, American Express asserts in its appellee’s brief filed with this court that

“[ijgnorance of the terms of this agreement on the part of Thomas is either willful or a result of inattentiveness.
“Further, the Cardmember Agreements each contain language showing the form of acceptance of the agreements. The first paragraph of each of the three Cardmember Agreements contains a provision that use of the card issued by American Express constitutes an acceptance of the terms of the agreement. Thomas does not dispute receiving the cards in question. Thomas also does not dispute using the cards. Accordingly, Thomas does not dispute accepting the Agreement in regards to the credit cards in question.”

Despite Thomas’s admitted use of the three accounts at issue, we cannot agree with American Express that the language found in the June 2009 statements and quoted above was sufficient to serve as notice to Thomas of the terms of the card-member agreements to which he was purportedly bound. Undoubtedly, the language was sufficient to notify any recipient of those statements that a cardmember agreement existed, but, by the time those three statement were prepared, i.e., June 2009, Thomas had already been in default on the three accounts at issue for approximately two years. American Express submitted nothing to the trial court to establish that, at any point before June 2009, Thomas had received the cardmember agreements or that he had agreed to be bound by the terms of the cardmember agreements.

Additionally, using circular logic, American Express relies on language found in the cardmember agreements themselves to establish that Thomas had agreed to be bound to the terms of those agreements. Thomas, however, denies ever receiving the cardmember agreements; therefore, language found in those cardmember agreements cannot be used to establish Thomas’s acceptance of their terms. American Express has not otherwise established Thomas’s assent to be bound to the terms of those agreements.

To establish its breaeh-of-con-tract claims, American Express was required to show (1) a valid contract binding the parties; (2) its performance under the contract; (3) Thomas’s nonperformance; and (4) resulting damages. Reynolds Metals Co. v. Hill, 825 So.2d 100, 105 (Ala.2002). Additionally, the elements of a valid contract include: “ ‘an offer and an acceptance, consideration, and mutual assent to terms essential to the formation of a contract.’” Ex parte Grant, 711 So.2d 464, 465 (Ala.1997) (quoting Strength v. Alabama Dep’t of Fin., Div. of Risk Mgmt., 622 So.2d 1283, 1289 (Ala.1993)).

Because it has not established the terms to which both parties agreed regarding the three accounts, American Express has not established that it is entitled to a judgment as a matter of law on the only theory of recovery asserted by American Express, i.e., three counts of breach of a written contract. We, therefore, reverse the judgment of the trial court and remand for further proceedings.

REVERSED AND REMANDED.

PITTMAN and DONALDSON, JJ., concur.

THOMAS, J., concurs in the result, without writing.

THOMPSON, P.J., concurs in the result only, with writing.

THOMPSON, Presiding Judge,

concurring in the result only.

After reviewing the record in this case, including the affidavit of Walter Gibbs and the documents accompanying that affidavit, I agree that, at this stage in the proceedings, American Express Bank, FSB, has not presented sufficient evidence to demonstrate that it is entitled to a summary judgment. I do not believe that this court’s holding should be read as preventing American Express from making a renewed motion for a summary judgment with additional evidence for the trial court to consider regarding any agreement between the parties.

      . American Express asserted that, pursuant to 12 C.F.R. § 202.12, it was required to maintain copies of credit-card applications for only 25 months.

      . American Express does not explain on what basis it is entitled to an award of attorney fees in the absence of an express provision allowing for such an award. Additionally, American Express’s admission that no written contract exists directly contravenes the allegations in its complaint.

      . Thomas admitted that he had received some of the monthly statements pertaining to the accounts but he denies receiving all of them.

      . We recognize that a signature is not always required to demonstrate assent to a contract; however, there must be some sort of showing of mutual assent to the terms governing the parties’ agreement. American Express has not yet met that burden in this case.


source: Caselaw Access Project

author: THOMAS, Judge.

license: Public Domain

text:
    Jeanette R. (Wicks) JACKSON v. Jeffery R. WICKS. Jeffery R. Wicks v. Jeanette R. (Wicks) Jackson.
    2111215.
    Court of Civil Appeals of Alabama.
    Aug. 2, 2013.

      Lindsey Mussleman Davis of Holt, Mus-sleman, Kelley & Morgan, Florence, for appellant/cross-appellee Jeanette R. (Wicks) Jackson.
    Nickolas J. Steles, Tuscumbia, for appel-lee/cross-appellant Jeffery R. Wicks.
   THOMAS, Judge.

Jeanette R. (Wicks) Jackson appeals from a judgment of the Colbert Circuit Court entered on a jury verdict in favor of Jeffery R. Wicks on his conversion claim. Wicks cross-appeals from a judgment of the trial court dismissing his shareholder-derivative claim against Jackson on behalf of The Cash Store, Inc. (“The Cash Store”). We reverse the judgment in favor of Wicks on his conversion claim, and we reverse the judgment dismissing Wicks’s shareholder-derivative claim and remand the cause with instructions to conduct a new trial regarding that claim.

Procedural History

On December 26, 2007, Wicks filed a complaint listing Jackson and Foster & Foster, C.P.A., as defendants and alleging claims of fraud, negligence, conversion, conspiracy to defraud, breach of fiduciary duty, and the tort of outrage. Jackson answered the complaint, generally denying the allegations. Foster & Foster, C.P.A., filed a motion to dismiss the complaint. On July 24, 2008, Wicks filed an amended complaint asserting, in addition to the claims asserted in the original complaint, a shareholder-derivative claim on behalf of The Cash Store. The amended complaint was not verified. Foster & Foster, C.P.A., and Jackson answered the amended complaint. Subsequently, Wicks filed a motion to dismiss Foster and Foster, C.P.A., from the action pursuant to Rule 41(a), Ala. R. Civ. P., which the trial court granted on March 12, 2009. Thus, the only remaining defendant was Jackson.

On November 7-10, 2011, the trial court conducted a jury trial in which the jury was presented testimony and documentary evidence. On November 10, 2011, Jackson filed a motion to dismiss Wicks’s shareholder-derivative claim pursuant to Rule 41(b), Ala. R. Civ. P., based on his failure to verify the amended complaint containing the claim as mandated in Rule 23.1, Ala. R. Civ. P.; she also filed a motion for a judgment as a matter of law on Wicks’s claims. On November 10, 2011, the trial court heard arguments of counsel regarding Jackson’s motion to dismiss the shareholder-derivative claim and Jackson’s motion for a judgment as a matter of law; the trial court granted her motion to dismiss the shareholder-derivative claim over Wicks’s objections. Additionally, the record indicates that the trial court charged the jury regarding only the conversion claim; thus, the record supports the conclusion that the trial court granted Jackson’s motion for a judgment as a matter of law as to all claims except the conversion claim, which it presented to the jury, and the shareholder-derivative claim, which it dismissed.

On November 10, 2011, the jury returned a verdict against Jackson on the conversion claim, awarding Wicks $192,000 in compensatory damages and $20,000 in punitive damages. The trial court entered a judgment on the jury verdict that same day. Jackson filed a motion to alter, amend, or vacate the judgment, which was denied by operation of law pursuant to Rule 59.1, Ala. R. Civ. P. Jackson filed a timely notice of appeal to our supreme court. Wicks timely cross-appealed regarding the dismissal of his shareholder-derivative claim. Our supreme court transferred the appeals to this court pursuant to Ala.Code 1975, § 12-2-7(6).

Factual Histm"y

The jury heard three days of testimony from the parties and other witnesses, including several expert witnesses. The testimony revealed the following. Judy Bullion testified that she had owned The Cash Store with Jackson from April 27, 2005, until she sold her 500 shares, or 50% interest, in The Cash Store to Wicks for $40,000 on January 20, 2006. She testified that The Cash Store was a check-cashing and title-loan business. She further testified that The Cash Store was making money while she was a shareholder and that most loans were paid off in cash and that the amount paid had to be entered into the computer system to be properly accounted for in the check-cashing and title-loan business. Bullion testified that she had owned several other check-cashing and title-loan stores besides The Cash Store and that, in her experience, it was customary that 10%-15% of the loans are written off as uncollectible bad debt and that, due to a downturn in the economy, the bad-debt number had increased by about 5%; thus, she opined that at the time of trial about 15%-20% of loans made in a check-cashing and title-loan business are not collected and are written off as bad debt. She further testified that she had had concerns about how the money was being spent at The Cash Store when she was a shareholder but that she had not raised those concerns to Jackson because, she said, she was trying to avoid any possible trouble. However, she later testified that she had filed a lawsuit against The Cash Store and that that action had been settled.

Shelby Dodd, an accountant, testified that she works at Tax Mart and that she had prepared the corporate tax returns for The Cash Store for 2007, 2008, 2009, and 2010. She testified that she had not prepared a corporate tax return for any corporate entity until Jackson requested that she prepare the first corporate tax return for The Cash Store but that she had prepared numerous individual tax returns over the years that she had been an accountant. She testified that The Cash Store is a Subchapter S corporation, which means that each shareholder should be prepared a Schedule K-l document (“K-l document”) based upon their shares of the Subchapter S corporation because, due to the tax status of a Subchapter S corporation, each shareholder must declare their portion of the corporate income as their personal income on their individual income-tax return. Dodd testified that she had prepared The Cash Store’s tax returns based on numbers that Jackson had provided to her and that she had not seen any documents to verify the numbers she had been presented by Jackson. She further testified that, for the years that she had prepared The Cash Store’s tax returns, Jackson had instructed her to issue only one K-l document to Jackson, indicating that Jackson owned 100% of the shares of The Cash Store, and that she had issued one K-l document because, she said, Tax Mart “usually do[es] what the client says.” Additionally, Dodd’s testimony revealed the following: that the 2007 corporate tax return for The Cash Store listed $89,789 as the business’s gross receipts, or total income, but that after deductions the ordinary business income or profits of The Cash Store was $28,992; that the 2008 corporate tax return listed $83,277 as the gross receipts, or total income, but that after deductions the ordinary business income or profits of The Cash Store was $23,678; that the 2009 corporate tax return listed $68,444 as the gross receipts, or total income, but that after deductions the ordinary business income or profits of The Cash Store was $226; that the 2010 corporate tax return listed $72,500 as the gross receipts, or total income, but that after deductions the ordinary business income or profits of The Cash Store was $732. She further testified that Wicks was never issued a K-l document for the years 2007 through 2010 for which Tax Mart had prepared the corporate tax returns for The Cash Store.

Tim Leigh, a certified public accountant, testified that he had been an accountant since 1973 and that he works at Leigh, King, and Associates in Sheffield. He testified that, in a separate action, the trial court had requested that he review The Cash Store’s financial records for 2006 to estimate the value of the business. He testified that, after looking at all the financial records from 2006, he had determined that the bad debt for 2006 was overstated in the amount of $66,993. He testified that overstating the bad debt of the corporation had resulted in understated profits. He testified that The Cash Store’s bad debts that were claimed in 2006 were well above the 25% mark that he figured would be correct. He also stated that the amount of bad debt claimed, as well as the existence of personal loans to both Jackson and Wicks, had raised red flags in his mind while reviewing the financial documents.

Mike Tucker, a certified public accountant, testified that he works for Boreland and Benefield and that he prepares corporate tax returns. He testified that he had reviewed The Cash Store’s corporate tax returns from 2006 through 2010 and its internal financial documents prepared by its computer software for 2006 through 2010. He opined that, based on his review of the financial documents, The Cash Store had understated its profits because it had overstated its bad debts and its expenses. He testified that gross receipts on a corporate tax return should be all receipts for the company, without taking any deductions. He explained that the 2009 corporate tax return showed total income as $68,444 but that the internal financial documents for 2009 indicated that the total check-cashing-loan interest was $108,576.79 and that the total title-loan interest was $91,375.46, for a total of $199,952.25 in interest income. He testified that the $199,952.25 figure should have appeared on line 1 of the corporate tax return as opposed to the $68,444 figure that Jackson had used because, he opined, the lower figure already accounted for deductions such as write-offs in the amount of $1,400 and miscellaneous receipts in the amount of $93,803.86 for the title-loan business and write-offs in the amount of $55,108 and miscellaneous receipts in the amount of $18,772.86 for the check-cashing business. He opined that it was improper to take any deductions from the gross-income ' line on the corporate tax return. He further opined that doing the accounting in the manner that The Cash Store had in 2009 had resulted in underreporting the corporation’s income and that The Cash Store had consistently underreported its income for the years 2006 through 2010. He compiled a document, Plaintiffs exhibit 27, which was entered into evidence, that demonstrated the difference between what was reported as gross income on the corporate tax returns and what was reported as the interest income on the corporation’s internal financial summary sheets. Plaintiff’s exhibit 27 indicated that the corporation had underreported its income by $12,881.36 in 2006, by $150,037.46 in 2007, by $154,984.84 in 2008, and by $131,508.25 in 2009.

Wicks testified that he had worked for the Sheffield Fire Department for 24 years and that he had married Jackson in 2005. He testified that the parties had separated in 2006 before his purchase of 500 shares, or a 50% interest, in The Cash Store. He testified that he had believed that the purchase of a 50% ownership interest in The Cash Store was a good investment at that time, that Foster & Foster had done the accounting for The Cash Store in 2006, and that, during that fiscal year, he had received monthly statements regarding The Cash Store. He further testified that he had not received any distributions in 2006 or any other year since he had purchased the 500 shares. He testified that Jackson and he had tried to reconcile in 2006 and that they had taken a trip to the Smoky Mountains. He testified that he was unaware that any money from The Cash Store had been used to finance that trip to the Smoky Mountains or any other marital expenses. He testified that he did not take personal loans from The Cash Store but that he had endorsed one check in the amount of $5,000 at Jackson’s request. He testified that he was not making any claim for Jackson’s salary paid by The Cash Store, that The Cash Store paid too much in rent to Jackson, or that he should have received a salary from The Cash Store but that he wants only his share of the money that The Cash Store had distributed since January 2006, based on his 50% ownership interest. Wicks testified that Jackson had purchased numerous properties since January 2006 and that he was unsure of how she had paid for those properties.

Jackson testified that she had purchased several properties since January 2006. She testified that she had not used income from The Cash Store to buy any of the properties but that she could not recall how she had purchased all the properties because, she said, she had “shifted money” and “shifted property.”

Specifically, she testified that she had purchased the following pieces of real property. Jackson testified that she had purchased property located at 100 River-view in June 2006 with her mother and that the property had been purchased for $50,000 in cash. She testified that she had purchased property located at Bluffview # 10 in December 2006 with her daughter, that the property had been purchased for $66,000, and that her daughter had paid $26,000 in cash and executed a mortgage in the amount of $40,000, which was released in September 2007, a nine-month period. She testified that she had purchased property located at Lot 1 River-mont in January 2007 by herself and that the property had been purchased for $23,000 in cash. Jackson testified that she had purchased property located at lots 97 through 100 in Wildwood Estates in June 2007 by herself and that the property had been purchased for $37,000 in cash. She testified that she had purchased property located at 4235 Waterloo Road in May 2008 by herself and that the property had been purchased for $198,000 in cash. She further testified that she had sold the property located at 4235 Waterloo Road in May 2008 for $207,000 and that she had placed that amount of money into a certificate of deposit. Jackson testified that she had purchased property located at 2211 Woodward Avenue in February 2009 by herself and that the property had been purchased for $123,000, with $81,000 of the purchase price having been financed through a note secured by a mortgage on the property. She further testified that The Cash Store is currently located at the property located at 2211 Woodward Avenue and that The Cash Store pays rent to her. She testified that she had purchased property located at 114 Stormy Drive in September 2009 by herself and that the property had been purchased by trading her house on Colorado Avenue that she had purchased before 2006 with the seller of the Stormy Drive property and paying the difference between the value of the Stormy Drive property and the Colorado Avenue property. She testified that she had “paid” $252,000 in property and cash to purchase the Stormy Drive property and that there was no mortgage on that property. Jackson testified that she had purchased property located at 308 Union Avenue in Mississippi in February 2011 with her mother and that the property had been purchased for $72,000 in cash, which was all paid by her mother. Jackson testified that she had purchased property located at 708 Clark Avenue in April 2011 with her mother and that the property had been purchased for $70,000 in cash.

When questioned about where Jackson had received the money to purchase the numerous properties listed above, Jackson testified that her mother and daughter had purchased several of the properties although her name was on the deeds. She further testified that she had received $300,000 in inheritance from her father and that she had used her inheritance along with other money she had before the parties’ marriage to purchase the properties. She could not explain why her bank statements did not reflect disbursement of the funds used to purchase the properties. Jackson further testified that she was unsure of where her daughter had received the money to purchase the properties but that she had given her daughter money and that her daughter earned $100,000 per year as a bookkeeper.

Jackson testified that her living expenses in 2006 were $16,000 and that that amount had increased since that time. The documentary evidence, along with Dodd’s testimony, indicated the following: that Jackson’s income in 2007 consisted of $7,500 in salary from The Cash Store and $7,454 in interest income, that her income in 2008 consisted of $0 in salary from The Cash Store and $2,368 in interest income, that her income in 2009 consisted of $7,000 in salary from The Cash Store and $1,219 in interest income, and that her income in 2010 consisted of $14,000 in salary from The Cash Store and $1,025 in interest income. Jackson testified that her mother had given her the funds to bridge the gap between her income and her living expenses.

Jackson testified that she reported the same numbers to Dodd at Tax Mart that she had previously reported to Foster and Foster. She also testified that she had never told Dodd that she was a 100% shareholder in The Cash Store and not to issue Wicks a K-l document. She testified that she had not overstated The Cash Store’s bad debts and understated its earnings. Jackson further testified that she had not used income from The Cash Store for her personal expenses but that she had loaned the corporation funds and that she had repaid herself for those loans.

Documentary evidence indicated that Jackson had written a check from The Cash Store’s account in the amount of $4,000 dated January 23, 2006, to Jeanette Rea Wicks for “payment on loan,” that she had written a check in the amount of $10,000 dated February 9, 2006, to Jeanette Rea Wicks for “payment on loan,” that she had written check in the amount of $10,000 dated February 17, 2006, to Jeanette Rea Wicks for “payment on loan,” and that she had written check in the amount of $5,000 dated March 27, 2006, to Jeanette and Jeff Wicks for “payment on loan.” She testified that all the money represented by those checks went into her personal accounts because, she said, she had loaned The Cash Store funds to pay Bullion to settle a lawsuit against it.

Discussion

A. Jackson’s Appeal

In addressing Jackson’s appeal, which challenges the jury verdict against Jackson on Wicks’s conversion claim and its award of compensatory and punitive damages, we apply the following standard of review:

“In discussing the standard of review in an appeal from a judgment based on a jury verdict where the trial court has denied a motion for a new trial, this Court has stated:
“ ‘ “Jury verdicts are presumed correct, and this presumption is strengthened by the trial court s denial of a motion for a new trial. Therefore, a judgment based on a jury verdict will not be reversed unless it is ‘plainly and palpably’ wrong.” ’
“Tanksley v. Alabama Gas Corp., 568 So.2d 731, 734 (Ala.1990) (quoting Davis v. Ulin, 545 So.2d 14, 15 (Ala.1989)).”

Petty-Fitzmaurice v. Steen, 871 So.2d 771, 773 (Ala.2003).

On appeal, Jackson contends that the trial court’s judgment on the jury’s verdict against her on the conversion claim is due to be reversed. She asserts four separate arguments targeted toward the alleged error in entering a judgment on the jury’s verdict. The arguments are as follows: (1) Wicks could not maintain a direct action against Jackson for conversion; (2) the evidence was insufficient to support a conversion claim; (3) the jury’s damages award was speculative; and (4) the claim was barred because it should have been raised in the parties’ divorce action. We will consider only her argument regarding Wicks’s inability to maintain a direct action under the facts of this case, and we pretermit discussion of the remaining arguments, because the resolution of that issue is determinative of the appeal. See Favorite Mkt. Store v. Waldrop, 924 So.2d 719, 723 (Ala.Civ.App.2005) (stating that this court would pretermit discussion of further issues in light of dis-positive nature of another issue).

Jackson argues that the trial court erred in submitting Wicks’s conversion claim to the jury because, she says, Wicks lacked standing to maintain a direct action against her for her alleged conversion of The Cash Store’s funds. Instead, she contends that he could maintain only a shareholder-derivative action on behalf of The Cash Store for such alleged actions. We agree.

“ ‘It is well settled that when individual damages sought to be recovered by a plaintiff are incidental to his or her status as a stockholder in a corporation, the claim is a derivative one and must be brought on behalf of the corporation.’ Pegram v. Hebding, 667 So.2d 696, 702 (Ala.1995). ‘It is only when a stockholder alleges that certain wrongs have been committed by the corporation as a direct fraud upon him, and such wrongs do not affect other stockholders, that one can maintain a direct action in his individual name.’ Green v. Bradley Constr., Inc., 431 So.2d 1226, 1229 (Ala.1983).”

Altrust Fin. Servs., Inc. v. Adams, 76 So.3d 228, 241 (Ala.2011)

Jackson cites Altrust, supra, in support of her argument. In Altrust, our supreme court analyzed the differences between a direct action and a derivative action and several cases examining the issue of standing regarding claims, both direct and derivative in nature, against corporate entities to conclude whether the plaintiffs could maintain a direct action against the defendants. Id. at 238^5. Our supreme court held that the plaintiffs could not maintain a direct action against the defendants because

“the alleged mismanagement and wrongdoing of the Altrust officers and directors .... is not unique to the plaintiffs; rather, it is suffered equally by all remaining eligible shareholders in Al-trust. Because the harm suffered by the plaintiffs also affects all other remaining eligible shareholders in Altrust, the plaintiffs do not have standing to assert a direct action.”

Altrust, 76 So.3d at 246 (citing Green v. Bradley Constr., Inc., 431 So.2d 1226 (Ala.1983)).

Although the facts of the present case are distinguishable from Altrust in that Jackson and Wicks were The Cash Store’s only shareholders and, thus, the harm suffered by Jackson’s alleged conversion of corporate funds was suffered only by Wicks and not by other shareholders, the alleged harm is of the type that must be asserted in a shareholder-derivative action as opposed to a direct action. In Green v. Bradley Construction, Inc., 431 So.2d 1226 (Ala.1983), which Altrust relied upon, our supreme court noted that the alleged fraudulent conversion of corporate assets is a shareholder-derivative action because the allegations, if proven, would require the alleged converted funds to be returned to the corporation and that type of harm impacts all shareholders of the corporation. Specifically, in Green, our supreme court stated:

“Green’s complaint alleges fraudulent conversions of corporate assets, which, if the allegations are true, would by law have to be returned to the corporation, as the assets are not solely Green’s but belong to the corporation. As noted in 19 Am.Jur.2d, Corporations § 534 (1979):
“ ‘An action brought by a stockholder to recover assets for the corporation or to prevent a dissipation of corporate assets is derivative in nature. Stockholders as such may not maintain actions to recover possession of corporate property. Thus, a stockholder may not bring an action in his own name for an alleged fraudulent transfer of corporate property to another stockholder: such a suit must be by or in behalf of the corporation.’ (Emphasis added [in Green ].)”

Id. at 1229. Like the fraudulent-transfer claim in Green, Wicks’s conversion claim alleged that Jackson had fraudulently converted corporate assets. Thus, under the holdings of our supreme court as discussed above, we conclude that Wicks lacked standing to initiate a direct action against Jackson for her alleged conversion of corporate assets and that such an allegation must be brought as a shareholder-derivative action. Therefore, we reverse the judgment entered on the jury’s verdict and remand the cause to the trial court for it to vacate that judgment.

B. Wicks’s Cross-Appeal

In his cross-appeal, Wicks contends that the trial court erred by dismissing his shareholder-derivative claim pursuant to Rule 41(b) “after four years of litigation, three days of trial, and after resting [the defense’s] case,” based on Wicks’s failure to verify the amended complaint adding that claim as required by Rule 23.1. We agree.

Wicks first argues that the trial court erred to reversal in dismissing his shareholder-derivative claim pursuant to Rule 41(b) because, he asserts, Rule 41(b) is inapplicable to dismiss a claim in a jury case. Specifically, he contends that the Committee Comments to Rule 41 unequivocally indicate that Rule 41(b) governs the involuntary dismissal of actions in only nonjury cases. That rule provides, in pertinent part: “For failure of the plaintiff to prosecute or to comply with these rules or any order of court, a defendant may move for dismissal of an action or of any claim against the defendant.” The Committee Comments on the 1973 Adoption of Rule 41 state, in pertinent part: “The rule is substantially the same as the corresponding federal rule” and

“Rule 41(b), [Fed.] R. [Civ.] P., as originally promulgated, applied to both jury and non-jury cases. By amendment, its function is clearly limited to non-jury cases. In a jury case, Rule 50 applies and the court is limited to a question of law (thereby preserving jury trial right) as to the sufficiency of plaintiffs prima facie case.”

Although we find no Alabama authority other than the Committee Comments to Rule 41 concerning the precise issue presented here — whether a trial court can involuntarily dismiss a party’s claim for failure to follow a rule of civil procedure in a jury case — we have found several federal authorities that support the conclusion that Rule 50, Ala. R. Civ. P., as opposed to Rule 41 applies in a jury case. It is well settled that federal cases construing the Federal Rules of Civil Procedure are persuasive authority in construing the Alabama Rules of Civil Procedure, which were patterned after the Federal Rules of Civil Procedure. Borders v. City of Huntsville, 875 So.2d 1168, 1176 n. 2 (Ala.2003). Thus, we turn to the federal cases for guidance.

In O’Brien v. Westinghouse Electric Corp., 293 F.2d 1 (3d Cir.1961), the United States Court of Appeals for the Third Circuit analyzed the precise issue whether a motion to dismiss a count under Rule 41(b), Fed.R.Civ.P., could be granted in a jury case. In concluding that Rule 50 as opposed to Rule 41(b) was the appropriate rule under which to “dismiss” a count in a jury case, the court stated:

“It is clear a motion under Rule 41(b) for dismissal at the end of plaintiffs case, that upon the facts and the law the plaintiff has shown no right to relief, is proper in a case without a jury. Upon granting such a motion the court should make findings of fact and conclusions of law pursuant to Rule 52(a). Upon review the findings must be accepted unless clearly erroneous. It is equally clear that in a jury case the question only can be one of law. Therefore the motion should be for a directed verdict as mentioned in Rule 50. Sano v. Pennsylvania Railroad Company, 3 Cir., 1960, 282 F.2d 936; Kingston v. McGrath, 9 Cir., 1956, 232 F.2d 495, 54 A.L.R.2d 267. If the court grants it no findings of fact are necessary and upon review the evidence must be viewed in the light most favorable to the party against whom the motion is made. Hence in this case it is held that no findings of fact were necessary, any indication in Makowsky v. Povlick, [262 F.2d 13 (3d Cir.1959) ], to the contrary notwithstanding.
“We will therefore treat the motion under Rule 41(b) in this case as one for a directed verdict, and will disregard the findings of fact of the trial court, reviewing the entire evidence in the light most favorable to the plaintiff and giving him the benefit of all reasonable inferences which may be deduced from the evidence in his favor, Warlich v. Miller, 3 Cir., 1944, 141 F.2d 168, a rule applying as well in patent cases. To adopt any other view in a jury case is to risk the deprivation of a plaintiffs right to trial by jury under the Seventh Amendment. Galloway v. United States, 319 U.S. 372, 63 S.Ct. 1077, 87 L.Ed. 1458 [ (1943) ].”

293 F.2d at 9-10 (footnotes omitted).

Accordingly, we will consider the trial court’s order granting Jackson’s motion for involuntary dismissal of the shareholder-derivative claim pursuant to Rule 41(b) as an order granting a motion for a judgment as a matter of law under Rule 50, Ala. R. Civ. P. Rule 50(a) states:

“(1) If during a trial by jury a party has been fully heard on an issue and there is no legally sufficient evidentiary basis for a reasonable jury to find for that party on that issue, the court may determine the issue against that party and may grant a motion for judgment as a matter of law against that party with respect to a claim or defense that cannot under the controlling law be maintained or defeated without a favorable finding on that issue.
“(2) Motions for judgment as a matter of law may be made at any time before submission of the case to the jury. Such a motion shall specify the judgment sought and the law and the facts on which the moving party is entitled to the judgment.”

We review the trial court’s grant of a Rule 50 motion under the following standard of review:

“Initially, we note that a motion for a directed verdict is a procedural device by which one party tests- the sufficiency of the other party’s evidence. See, Rule 50(a), Ala. R. Civ. P.; Alabama Power Co. v. Williams, 570 So.2d 589 (Ala.1990); John R. Cowley & Bros., Inc. v. Brown, 569 So.2d 375, 376 (Ala.1990); J. Hoffman & S. Guin, Alabama Civil Procedure § 8.37 (1990). Similarly, a motion for JNOV simply ‘permits the trial court to revisit its earlier ruling denying the motion for directed verdict.’ Alabama Power Co. v. Williams, 570 So.2d 589, 591 (Ala.1990). The ultimate question, of course, as to either motion, is whether the nonmovant has presented sufficient evidence to allow submission of the case or issue to the jury for a factual resolution. Hoffman & Guin, supra, at § 8.37. For actions filed after June 11, 1987, the standard of review applicable to both motions is the ‘substantial evidence rule.’ See, § 12-21-12(a), Ala.Code 1975; Koch v. State Farm Fire & Cas. Co., 565 So.2d 226, 228 (Ala.1990). Thus a nonmovant must present ‘substantial evidence’ supporting each element of his cause of action or defense to withstand a motion for directed verdict or JNOV. This calls for ‘a purely objective determination of whether the party having the burden of proof has produced [sufficient] evidence [of a factual dispute] requiring resolution by the jury.’ Ex parte Oliver, 532 So.2d 627, 628 (Ala.1988); and see, John R. Cowley & Bros., Inc., supra.
“Additionally, in reviewing a motion for directed verdict or JNOV, this Court must view all the evidence in a light most favorable to the nonmovant and must entertain such reasonable eviden-tiary inferences as the jury would have been free to draw. Williams v. Allstate Ins. Co., 591 So.2d 38 (Ala.1991).

Cherokee Elec. Coop. v. Cochran, 706 So.2d 1188, 1191-92 (Ala.1997).

We must détermine whether Wicks presented substantial evidence to support his shareholder-derivative claim on behalf of The Cash Store against Jackson for mismanagement of corporate funds. As noted above, the testimony along with documentary evidence indicated that Jackson wrote checks totaling $29,000 from The Cash Store to herself or to herself and Wicks and that she had used the cash received from the deposit of those checks for her personal use. Additionally, the expert testimony and documentary evidence also revealed that The Cash Store had overstated its bad debts and, thus, had understated its profits. Jackson testified that she had used The Cash Store’s funds for personal use for the parties’ trip to the Smoky Mountains and to cover expenses during the parties’ marriage; Wicks testified that he had been unaware that the parties had used funds from The Cash Store to pay for the parties’ vacation. Accordingly, reviewing the evidence in a light most favorable to Wicks, we conclude that Wicks presented substantial evidence indicating that Jackson had mismanaged the corporate funds. Therefore, the trial court improperly granted Jackson’s motion for a judgment as a matter of law on the shareholder-derivative claim. We reverse the trial court’s judgment as a matter of law on Wicks’s shareholder-derivative claim, and we remand the cause with instructions to conduct a new trial regarding Wicks’s shareholder-derivative claim.

' APPEAL — REVERSED AND REMANDED.

CROSS-APPEAL — REVERSED AND REMANDED.

THOMPSON, P.J., and PITTMAN and DONALDSON, JJ„ concur.

MOORE, J., concurs in the result, without writing.

      . A transcript of the motion hearing is not contained in the record on appeal. However, Wicks filed a motion to supplement the record pursuant to Rule 10(d), Ala. R.App. P., which the trial court granted, and, as a result, the trial court’s order dismissing the shareholder-derivative claim is contained in the record on appeal.

      " 2 We note that Rule 50(a) has renamed this motion as a 'motion for judgment as a matter of law.’ See Committee Comments to October 1, 1995, Amendment to Rule 50.

      " 3 The 1995 amendment to Rule 50, Ala. R. Civ. P., renames the JNOV motion as a 'renewal of the motion for a judgment as a matter of law.' See note 2.

      " 4 'Substantial evidence’ has been defined as ‘evidence of such weight and quality that fair-minded persons in the exercise of impartial judgment can reasonably infer the existence of the fact sought to be proved.’ West v. Founders Life Assurance Co. of Florida, 547 So.2d 870, 871 (Ala.1989); see Ala.Code 1975, § 12-21-12.”

      . We also note that, because the case had been tried in its entirety without objection regarding the shareholder-derivative claim, and because we have concluded that the evidence adduced did not support a judgment as a matter of law in favor of Jackson on the shareholder-derivative claim, the trial court could not have dismissed the claim merely because the complaint was not verified. See McDuffie v. Hooper, 294 Ala. 293, 296, 315 So.2d 573, 576 (1975) (finding that the issue whether the parties had been engaged in a joint venture was tried by the implied consent of the parties because McDuffie "made no objection at any time during the course of the trial”); see also Rule 15(b), Ala. R. Civ. P. ("When issues not raised by the pleadings are tried by express or implied consent of the parties, they shall be treated in all respects as if they had been raised in the pleadings.”).


author: PITTMAN, Judge.

text:
    Phillip ALEXANDER and Patrice Alexander v. Jeremy R. HAWK.
    2120461.
    Court of Civil Appeals of Alabama.
    Aug. 9, 2013.

      Phillip Alexander and Patrice Alexander, pro se.
   PITTMAN, Judge.

Phillip Alexander and Patrice Alexander appeal from a judgment of the Montgomery Circuit Court in favor of Jeremy R. Hawk on Hawk’s claims against them for ejectment and breach of contract.

The circuit court tried the case on January 22, 2013. At that trial, Hawk testified that in 2007 he, as the seller, entered into a bond-for-title agreement with the Alexanders, as the purchasers, regarding a residence in Montgomery. The agreed-upon purchase price for the property was $131,000. He explained that his understanding of the bond-for-title agreement was that, once the Alexanders paid him the full purchase price of the property, the title to the property would be placed in the Alexanders’ names. According to the bond-for-title agreement, which was entered as an exhibit, the Alexanders paid $17,000 to Hawk upon their executing the agreement. Hawk stated that the bond-for-title agreement provided that the remainder of the purchase price would be paid in monthly installments of $917.27, until the expiration of 5 years, at which time the Alexanders were to pay the outstanding balance by obtaining a mortgage secured by the property.

The final paragraph of the bond-for-title agreement indicates that, if the Alexanders failed to pay any of the monthly installments, Hawk “shall have the right to annul” the agreement and, upon the annulment, the Alexanders would become tenants, Hawk would become entitled to immediate possession of the property, with the option to eject the Alexanders therefrom, and Hawk would “retain all monies paid under this Bond for Title by the [Alexanders] as rent of the premises, said amount being hereby agreed and declared by said parties to be the rental value of the premises.” Hawk testified that the Alexanders had defaulted on the payments many times and that the last time he had received a payment from them was in May 2012. Hawk testified that, according to the bond-for-title agreement, upon their default, the Alexanders became tenants and that the Alexanders owed him $8,660.26, which included unpaid rent and court costs.

Phillip Alexander testified that they had been late on one payment, that they had made an agreement with Hawk and had caught up on the payment, and that they had paid on time until May, when he was temporarily laid off and they had made a partial payment. He stated that Hawk had accepted that partial payment, but had then said that he could no longer accept partial payments, and had voided the contract and filed an eviction notice.

Hawk filed a complaint against the Alexanders in the Montgomery District Court on September 12, 2012. On September 14, 2012, the district court entered an order transferring Hawk’s action to the circuit court; that order states, in pertinent part: “This matter was before the Court on an Unlawful Detainer action. However, the underlying cause of action is not based on a landlord-tenant agreement.” Hawk filed an amended complaint in the circuit court; in that amended complaint, Hawk asserted claims of ejectment and breach of contract. Following a bench trial, the circuit court entered a judgment in favor of Hawk and against the Alexanders for possession of the property and $8,660.26. The Alexanders timely filed their notice of appeal to this court.

Although neither Hawk nor the Alexanders have raised the issue of subject-matter jurisdiction, “jurisdictional matters are of such magnitude that we take notice of them at any time and do so even ex mero motu.” Sleasman v. Sleasman, 907 So.2d 1075, 1076 (Ala.Civ.App.2005). In Darby v. Schley, 8 So.3d 1011, 1012 (Ala.Civ.App.2008), an unlawful-detainer action that was based on a lease-purchase agreement between the parties was transferred to the Shelby Circuit Court by the Shelby District Court, and, ultimately, a summary judgment was entered by the Shelby Circuit Court on the unlawful-detainer claim. 8 So.3d at 1012-13. This court vacated the summary judgment and dismissed the appeal for lack of subject-matter jurisdiction, stating, in pertinent part:

“By statute, original jurisdiction over unlawful-detainer actions lies in the district courts. § 6-6-330, Ala.Code 1975 (‘The forcible entry upon and detainer, or the unlawful detainer, of lands, tenements and hereditaments is cognizable before the district court of the county in which the offense is committed.’). A circuit court may not exercise jurisdiction over an unlawful-detainer action until the district court has adjudicated the unlawful-detainer action and one of the parties has appealed to the circuit court. See § 6-6-350, Ala.Code 1975 (‘Any party may appeal from a judgment entered against him or her [in an unlawful-de-tainer action] by a district court to the circuit court at any time within seven days after the entry thereof, and [the] appeal and the proceedings thereon shall in all respects, except as provided in this article, be governed by this code relating to appeal from district courts.’). Accordingly, Darby’s unlawful-detainer action was not an action ‘within the exclusive jurisdiction of the circuit court,’ § 12-11-9, [Ala.Code 1975], [] and, therefore, the Shelby District' Court did not have the authority to transfer that action to the Shelby Circuit Court pursuant to § 12-11-9. Moreover, because the Shelby District Court had not adjudicated Darby’s unlawful-detainer action and no appeal from such an adjudication had been taken, the unauthorized transfer of Darby’s unlawful-detainer action could not transfer jurisdiction over that action to the Shelby Circuit Court.”

8 So.3d at 1013-14 (footnote omitted).

In the present case, like in Darby, the district court did not adjudicate the unlawful-detainer action brought by Hawk; instead, the district court transferred the action to the circuit court because, it determined, the action was not based on a landlord-tenant agreement. The circuit court, however, did not have original, exclusive jurisdiction of the unlawful-detainer action; rather, original jurisdiction over that action was in the district court. See Ala. Code 1975, § 6-6-330. Although Hawk filed an amended complaint in the circuit court, asserting claims that fall within the original jurisdiction of the circuit court, the record reveals that Hawk did not pay a filing fee along with that amended complaint; thus, that filing did not initiate a new action invoking the subject-matter jurisdiction of the circuit court. See Kaufman v. Kaufman, 934 So.2d 1073, 1082 (Ala.Civ.App.2005) (“The payment of a filing fee is a jurisdictional act.”).

Based on the foregoing, we conclude that, like in Darby, the district court improperly transferred the action to the circuit court, and, thus, the circuit court lacked subject-matter jurisdiction over Hawk’s unlawful-detainer action. 8 So.3d at 1014. Because the circuit court’s purported judgment was entered without jurisdiction, it is void and will not support an appeal. See Darby, 8 So.3d at 1014; and State Dep’t of Revenue v. Arnold, 909 So.2d 192, 193 (Ala.2005). We therefore vacate the judgment entered by the circuit court and dismiss the Alexanders’ appeal from that judgment for lack of subject-matter jurisdiction.

JUDGMENT VACATED; APPEAL DISMISSED.

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

      . Hawk’s original complaint, filed in the district court, does not appear in the record on appeal. In fact, the district court’s order transferring the action to the circuit court and the district court’s case-action-summary sheet are the only district-court documents that appear in the record.

      . Section 12-11-9 requires that a case filed in the circuit court or the district court that is within the exclusive jurisdiction of the other court be transferred to the docket of the appropriate court.


author: KELLUM, Judge.

text:
    Terrence Tyree EDWARDS v. STATE of Alabama.
    CR-12-0121.
    Court of Criminal Appeals of Alabama.
    March 29, 2013.
    Rehearing Denied May 24, 2013.
    Certiorari Denied Aug. 16, 2013 Alabama Supreme Court 1121032.

      J.D. Lloyd, Birmingham, for appellant.
    Luther Strange, atty. gen., and Jack W. Willis, asst. atty. gen., for appellee.
   KELLUM, Judge.

The appellant, Terrence Tyree Edwards, was convicted of murder, a violation of § 13A-6-2, Ala.Code 1975. The circuit court sentenced Edwards to 30 years’ imprisonment and ordered Edwards to pay $12,250 in restitution, $25 to the crime victims compensation fund, and court costs.

The record indicates the following pertinent facts. Edwards and his longtime girlfriend Nina Gardner were living together in a house with their three children in Birmingham. On January 17, 2011, Verna Gardner, Nina’s mother, picked Edwards up from his job at Birmingham Fasteners and took him to Church’s Chicken, a fast-food restaurant where he worked part-time. When Edwards’s shift at Church’s ended, he went to a friend’s house and waited for Nina to pick him up and drive him home. Verna testified that after midnight that evening, Nina telephoned her; Verna could hear Nina and Edwards loudly “arguing on the phone.” (R. 39.) Verna drove to the house and was met by Nina, who told her that she and Edwards had been arguing about “picking up” around the house. Verna helped Nina clean the house and then returned to her own house. Edwards was in the house while Nina and Verna were cleaning, but he refused to acknowledge Verna ánd remained on the living-room couch for the duration of her visit.

Later that evening Verna received a telephone call from Edwards. Edwards told Verna, “Maw-maw, I need you,” but he did not tell Verna why he needed her. Verna testified that Edwards was not crying or screaming and did not sound upset when he made the telephone call. After Edwards ended the telephone call with Verna, he telephoned Chastity Gardner, Verna’s granddaughter and Nina’s niece. Chastity was living with Verna at that time, and Verna could tell something was not right while Chastity was speaking with Edwards on the telephone. When Chastity hung up the phone after speaking with Edwards, she telephoned emergency 9-1-1. The police first arrived at Verna’s house to pick her up, and Verna accompanied the police to Nina’s house. By the time Verna arrived, there were already three or four other police cars and an ambulance at the house. Verna learned that Edwards had shot Nina in the chest and that she had died from the gunshot wound.

At trial, Chastity testified that she had been babysitting Nina and Edwards’s children for a few months before Nina was killed. Chastity testified that Nina had sent her a text message on the night she was killed stating that “she was ready to leave [Edwards]” because Edwards was “making her a bad mother,” and because Edwards did not like the way Chastity was caring for the children when she was babysitting. (R. 68.) Chastity later received a text message from Edwards that said “[y]ou better know who you are fucking with,” accompanied by an “angry face.” (R. 68-69.) Chastity further testified that later that evening she received multiple telephone calls from Nina’s telephone, but that until the last call Nina never said anything. On the last call, Chastity heard Edwards say “come to me. I need you right now,” and Chastity heard “[her] auntie in the background saying ‘please, stop.’” (R. 70.) Chastity subsequently telephoned 9-1-1.

Birmingham Police Officer Ronald Brown responded to Chastity’s 9-1-1 call. Brown arrived at Edwards and Nina’s residence as a second 9-1-1 call was being placed, and Officer Brown informed dispatch he was already on the scene. As Officer Brown approached the house, he looked into a window and saw Edwards kneeling on the floor over Nina, shaking her. Officer Brown approached the door, and he was met by Edwards who said, “help my wife, help my wife,” but Nina was already dead. (R. 98.) Officer Brown testified that Edwards was handcuffed and detained in the back of a police car until the detectives and crime-scene investigators arrived at the scene.

Officer J.D. Strickland was the crime-scene investigator who collected the evidence at Edwards’s house. Officer Strickland collected a spent bullet and a Taurus brand Raging Bull .480 caliber handgun that had one shell casing in it. There was a partial fingerprint on the gun but not enough of a print for police to attempt to match the fingerprint with their records. Officer Strickland turned the gun over to Mitch Rector, the forensic-services manager for the Birmingham Police Department.

Rector testified that he inspected the handgun recovered from the scene of the crime and determined that the bullet that killed Nina had been fired from that gun. Rector then examined the clothing that Nina was wearing when she was shot. According to Rector, there was very little powder residue on the clothing, which indicated that the gun was not fired at close range. Rector then conducted a “distance estimation” test, whereby he “fired a series of shots from various distances” to determine how far away from Nina Edwards was when Nina was shot. (R. 196.) After conducting these tests, Rector estimated that Edwards was four to five feet away from Nina when he fired the handgun.

Dr. Gregory Davis was the pathologist with the Jefferson County Medical Examiner’s Office who conducted the autopsy on Nina. Dr. Davis testified that even though Edwards had fired only one shot, the bullet caused significant injuries. The bullet first struck Nina’s right wrist, which was resting on her right breast. The bullet then traveled into Nina’s right breast, and through her chest, where it hit her liver, heart, diaphragm, stomach, and spleen. The bullet subsequently exited to the rear of her left armpit. When the bullet exited Nina’s chest, it struck her left arm, leaving a bruise. Dr. Davis testified that he did not see powder markings on Nina’s body or clothing to suggest that the gunshot wound was a contact wound, or that the gun was fired from either close or intermediate range.

Birmingham Police Detective Henry Lucas interviewed Edwards after the shooting. Detective Lucas testified that he informed Edwards of his Miranda rights, and, after waiving those rights, Edwards gave the following statement, as summarized by Detective Lucas:

“[Detective Lucas]: [Edwards] basically stated that they was at the house. They had words. [Nina] came into the kitchen with the gun in her hands. [Edwards] stated that — [s]he said if you fuck with me — you fuck me, you’re stuck with me. [Nina] had the gun cradled in her hand somehow. [Edwards] snatched the gun. The gun went off and shot [Nina].
“[Prosecutor]: Did he ever say that Nina pointed the gun at him?
“[Detective Lucas]: No, he did not.”

(R. 171.)

Edwards testified in his own defense and provided a description of the incident that contradicted the forensic evidence presented by the State. Edwards testified that he and Nina agreed to purchase the handgun because their house was in a bad neighborhood. Edwards stated that he did not know where Nina kept the handgun and that they had an agreement that the handgun was to remain unloaded because they had young children in the house.

According to Edwards, Nina picked him up from a friend’s house after his shift was over at Church’s. When they arrived home, Edwards told Nina they needed a new babysitter and that Chastity was not fit to continue in that capacity because she was inattentive and had burned one of the children with a cigarette. Nina argued with Edwards, stating that Chastity needed the money she got from babysitting. Eventually, Verna came to the house because of the argument, but at that point Edwards had decided he was going to go stay at his mother’s house.

When Edwards told Nina he intended to leave, Nina told him, “[he] wasn’t going nowhere.” (R. 264.) Edwards testified that when he went to the laundry room to put on his coat, Nina appeared with the gun in her hand. According to Edwards, Nina was “angry. She was real angry. She had a gun in her hand. She told [him]: T told you, you fuck me, you stuck with me. You think I’m playing with you.’” (R. 266.) Edwards testified that he then reached for the handgun, and as he and Nina struggled over the handgun, the handgun discharged and Nina was shot.

Edwards testified that after Nina was shot, he telephoned Verna and Chastity to ask for help. Edwards then telephoned the police, and, after giving them his address, Edwards hung up the telephone. When the police arrived, Edwards was cooperative. Edwards testified that the shooting was an accident and that he never intended to cause Nina’s death.

On cross-examination, the State asked Edwards a number of questions about his and Nina’s positions during the struggle over the gun. The State pointed out that Nina was right-handed, so it would have been impossible for Nina to be shot in her right hand if she was holding the gun in her right hand, leading to the following exchange:

“[Prosecutor]: We heard testimony from the medical examiner that that bullet hit Nina first through her right wrist. Were you here for that?
“[Edwards]: Yes, ma’am.
“[Prosecutor]: How was Nina’s right hand on that gun when that trigger was pulled if the gun — if the bullet first entered her body—
“[Edwards]: Uh-huh.
“[Prosecutor]: — through her right wrist? How does that happen?
“[Edwards]: If you’re struggling over the gun, ma’am. The gun can be pointed any kind of way.
“[Prosecutor]: That’s true, but we’ve agreed, haven’t we that if the bullet hit Nina from that gun, the gun was pointed at Nina? Yes?
“[Edwards]: We were arguing. I was trying to leave. I was trying to leave.
“[Prosecutor]: Let’s agree on this. That bullet came out of the gun. It did not hit you?
“[Edwards]: No, ma’am.
“[Prosecutor]: It did not hit the wall?
“[Edwards]: No, ma’am.
“[Prosecutor]: It did not hit the ceiling?
“[Edwards]: No, ma’am.
“[Prosecutor]: It hit Nina?
“[Edwards]: Yes, ma’am.
“[Prosecutor]: Through her wrist?
“[Edwards]: Yes, ma’am.”

(R. 286-87.)

Edwards’s case was tried before a jury. After both sides had rested and the court had instructed the jury on the applicable principles of law, the jury found Edwards guilty of murder. This appeal followed.

I.

Edwards contends that the circuit court abused its discretion when it denied his written requested jury charge on “consciousness of innocence.” Specifically, Edwards argues that because he did not flee the scene after he shot Nina, he was entitled to an instruction on “consciousness of innocence,” and the circuit court’s failure to give this instruction was reversible error because the instruction was a correct statement of the law. Edwards further asserts that because the State can request an instruction on consciousness of guilt when a defendant does flee, the circuit court’s failure to provide an instruction on “consciousness of innocence” when Edwards did not flee violated Edwards’s right to equal protection under the Fifth and Fourteenth Amendments to the United States Constitution.

The record indicates that Edwards requested the following instruction be given to the jury:

“I charge you ladies and gentlemen of the jury that consciousness of innocence may be inferred by the jury from the actions of the defendant immediately after the shooting occurred. Did he stay at the scene? Did he call for aid? Did he cooperate with law enforcement officials? All of these things may infer consciousness of innocence, and as triers of the facts this is at the sole discretion of the jury to determine.”

(C. 70.) This requested instruction led to the following exchange between the circuit court and defense counsel:

“THE COURT: Over the evening we had some requested charges come in. We’ll start with Mr. Tindle’s. His requested charge is consciousness of innocence, I guess, is the best way to describe it, Mr. Tindle.
“[Defense counsel]: Judge, I believe it’s got to be equal justice. When a defendant flees the scene of a shooting, the State gets a charge on flight being consciousness of guilt, okay? When a defendant stays at a scene of the shooting, calls for aid, cooperates with the police, these are things that show consciousness of innocence. It should be equality in the charges and I charge you, ladies and gentlemen of the jury, that consciousness of innocence may, may be inferred by the jury from the actions of the defendant immediately after the shooting occurred, one, did he stay at the scene, did he call for aid, did he cooperate with law enforcement officials? All of these type of things may infer consciousness of innocence. As triers of the fact, this is at the sole discretion of the jury to determine them.
“THE COURT: Mr. Tindle, do you have a case that cites this?
“THE COURT: My question, not that you can — does this come from a case? Not have you used it before. I mean, you’re right, this sounds like the exact opposite of the — I guess you could say exact opposite, but it’s the working of the flight charge. But the flight charge is one that’s recognized by law of the State of Alabama. While I see absolutely nothing that would prohibit you from arguing this, my question is, is this a correct statement of the law?
“[Defense counsel]: Ma’am, if it is not, I intend to make it caselaw somewhere down through the point, because there’s got to be equality in the law.
“THE COURT: Well, I disagree that this is an equality argument. You know, I’ve been around for an awful long time. Since 1980. And then ’83 after law school. There have been hundreds of cases where the defendants have cooperated, and this is the first time that I have ever been presented with a charge of this nature.”

(R. 805-07.)

“A trial court has broad discretion in formulating its jury instructions, providing they are an accurate reflection of the law and facts of the case.” Coon v. State, 494 So.2d 184 (Ala.Crim.App.1986). “ ‘When requested charges are either fairly and substantially covered by the trial judge’s oral charge or are confusing, misleading, ungrammatical, not predicated on a consideration of the evidence, argumentative, abstract, or a misstatement of the law, the trial judge may properly refuse to give such charges.’” Ward v. State, 610 So.2d 1190, 1194 (Ala.Crim.App.1992) (quoting Ex parte Wilhite, 485 So.2d 787 (Ala.1986)).

Edwards argues that the circuit court should have provided the jury with his requested instruction on “consciousness of innocence” because, he says, it was not a misstatement of the law and it was supported by the facts. This Court recently rejected an argument similar to Edwards’s in Albarran v. State, 96 So.3d 131 (Ala.Crim.App.2011). In Albarran, this Court reviewed the circuit court’s refusal to give the following instruction:

“The absence of flight of a person or the failure of a person to attempt to evade the police immediately after the commission of the acts leading to an arrest, if the person had the opportunity to flee, is a matter to consider in light of all the circumstances, in deciding whether or not the defendant’s guilt has been proven beyond a reasonable doubt.”

Albarran, 96 So.3d at 192. This Court recognized that Alabama appellate courts have never specifically addressed whether a defendant was entitled to an instruction on “absence of flight,” and looked to other jurisdictions for guidance on the issue.

This Court determined that the reasoning in Commonwealth v. Hanford, 937 A.2d 1094 (Pa.Super.2007), should apply in this situation, and adopted the following holding:

“ ‘While a “flight” instruction, whereby a jury may infer consciousness of guilt from an attempt to flee, is well established in this Commonwealth, see Pa. S.S.J.I. (Crim) 3.14; Commonwealth v. Bruce, 717 A.2d 1033 (Pa.Super.1998), appeal denied, 568 Pa. 643, 794 A.2d 359 (1999), there is no authority for a corresponding but inverse “absence of flight” instruction. Indeed, Appellant cites no authority for his notion. Other states that have addressed the issue, however, have uniformly rejected it. See e.g. Smith v. U.S., 837 A.2d 87, 100 (D.C.2003), cert. denied, 541 U.S. 1081, 124 S.Ct. 2435, 158 L.Ed.2d 996 (2004); People v. Williams, 55 Cal.App.4th 648, 64 Cal.Rptr.2d 203, 205 (1997); State v. Pettway, 39 Conn.App. 63, 664 A.2d 1125, 1134 (1995), appeal denied, 235 Conn. 921, 665 A.2d 908 (1995); State v. Walton, 159 Ariz. 571, 769 P.2d 1017, 1030 (1989), affirmed, 497 U.S. 639, 110 S.Ct. 3047, 111 L.Ed.2d 511 (1990); State v. Mayberry, 411 N.W.2d 677, 684 (Iowa 1987).
“ ‘[T]he “absence of flight” instruction is unnecessary because, from the outset, an individual is presumed innocent until proven guilty and the jury is so instructed. Pa. S.S.J.I. (Crim) 7.01. Because the defendant is already “clothed with a presumption of innocence,” [Commonwealth v.] Collins, [810 A.2d 698 (Pa.Super.2002) ] at 701 (citing Commonwealth v. Bishop, 472 Pa. 485, 372 A.2d 794, 796 (1977)), the jury need not be additionally charged on an inference of innocence where a suspect does not flee.’ ”

Albarran, 96 So.3d at 192-93 (quoting Hanford, 937 A.2d at 1097-98). After adopting this holding, this Court determined that Albarran was not entitled to an absence-of-flight instruction because “the absence of flight is not a theory of defense from which... an inference of innocence may be drawn by the jury.” Albarran, 96 So.3d at 193.

In the instant case, Edwards attempts to distinguish his argument from the argument made in Albarran, stating that “the facts at hand in Mr.. Edwards’s case are clearly distinguishable from the facts presented in Albarran, and, as such, demonstrated Mr. Edwards’s need for the instruction under his theory of the defense.” (Edwards’s brief, p. 24.) Although the facts of Albarran are distinguishable from the instant case, the legal principles that this Court identified in Albarran^-namely that “an individual is presumed innocent until proven guilty,” and that “the absence of flight is not a theory of defense from which... an inference of innocence may be drawn by the jury” — are applicable in Edwards’s case just as they were in Al-barran. Albarran, 96 So.3d at 192-93. Because Edwards’s requested jury instruction was predicated on an improper understanding of Alabama law, the circuit court did not abuse its discretion when it refused to provide a “consciousness of innocence” jury instruction.

Moreover, even if this Court were willing to agree with Edwards that there is a distinction between the “absence of flight” instruction rejected in Albarran and the “consciousness of innocence” instruction rejected here, this Court adopts the reasoning of Commonwealth v. Thomas, 54 A.3d 332 (Pa.2012), a case that expanded the holding of Hanford in determining that a defendant is not entitled to the exact instruction Edwards now requests. In Thomas, the defendant asked for an instruction on “consciousness of innocence” in order “to make sure the playing field is equal.” Thomas, 54 A.3d at 342. The Pennsylvania trial court denied Thomas’s request, ruling that the instruction was not supported by “prevailing law nor the facts of the case.” 54 A.3d at 342. The Pennsylvania Supreme Court affirmed the judgment of the trial court, ruling that Thomas was not entitled to a “consciousness of innocence” instruction. Specifically, the Pennsylvania Supreme Court explained:

“The question of a ‘consciousness of innocence’ jury instruction has not been previously addressed by this Court. However, the Superior Court has considered and rejected a similar instruction, an ‘absence of flight’ instruction. See Commonwealth v. Hanford, 937 A.2d 1094, 1097-98 (Pa.Super.2007). In Hanford, the defendant claimed that the trial court had erred by denying his request for an ‘absence of flight’ instruction, pursuant to which the trial court would instruct the jury that it could infer innocence from the defendant’s failure to flee the scene of his alleged offense or to attempt to elude capture by the police. Recognizing the issue as one of first impression in Pennsylvania, the Superior Court panel held that the defendant-appellant’s claim was merit-less. Id. at 1097-98. The panel reasoned that a suspect’s failure to attempt to avoid the police was ‘open to multiple interpretations, many of which have little to do with consciousness of guilt, [but] could actually reflect a strategic choice.’ Id. at 1097. In addition, the panel concluded that an ‘absence of flight’ instruction was unnecessary because a defendant is presumed innocent until proven guilty and the jury is so instructed; therefore, the jury need not be additionally charged on an inference of innocence from the failure to flee from police. Id. at 1097-98.
“Many other jurisdictions have reached conclusions similar to that of our Superior Court in Hanford. For example, the Connecticut Appellate Court has consistently declined to require a consciousness of innocence instruction based on a defendant’s voluntary surrender to police or failure to flee from police. In State v. Timmons, 7 Conn.App. 457, 509 A.2d 64, 70 (1986), the defendant had sought a consciousness of innocence instruction based on his voluntary surrender to police. In rejecting the defendant-appellant’s claim, the appellate court held as follows:
“ ‘The surrender of an accused is a factual argument that may properly be made to a jury in summation of the evidence. It is not a theory of defense from which, as a matter of law, an inference of innocence may be drawn by the jury. This court has been unable to find any authority allowing an instruction permitting the jury to infer innocence from surrender after flight.’
“Other jurisdictions have considered the issue of a consciousness of innocence instruction, and uniformly have concluded that a defendant is not entitled to such an instruction. See e.g., Hanford, 937 A.2d at 1097 (listing cases in which the issue of a consciousness of innocence instruction has been addressed and rejected); [State v.] Jennings, 562 A.2d [545,] at 549 n. 3 [ (Conn.App.1989) ] (same); Smith v. U.S., 837 A.2d 87, 100 (D.C.2003)(eoncluding that the trial court did not err in refusing to give an absence of flight instruction because legal authority did not support, but rather refuted, such an instruction); State v. Sorensen, 104 Ariz. 503, 455 P.2d 981, 987 (1969)(discerning no prejudice to the defendant in the trial court’s refusal to give an instruction as to absence of flight, and concluding that the matter is ‘more properly one of argument’).
“We are persuaded by the reasoning of the courts in our sister states, as well as our own Superior Court, and, accordingly, we decline to hold that a consciousness of innocence jury instruction would have been proper here. The matter is properly one of argument to the jury.”

Thomas, 54 A.3d at 341-43.

In the instant case, this Court finds the reasoning of the Pennsylvania Supreme Court compelling. As that Court noted, a defendant is already accorded a presumption of innocence, and a defendant’s “failure to attempt to avoid the police” is “open to multiple interpretations, many of which have little to do with consciousness of guilt.” Thomas, 54 A.3d at 341. While Edwards was free to argue that his cooperation with police and other first responders indicated his innocence, Edwards was not, as a matter of law, entitled to a jury instruction on “consciousness of innocence.”

Edwards further argues:

“Due Process under the Equal Protection Clause of the Fourteenth Amendment commands that Mr. Edwards should have been entitled to [a ‘consciousness of innocence’] instruction due to the fact that the State of Alabama would have been entitled to the inverse instruction on flight had Mr. Edwards left the scene of the shooting.”

(Edwards’s brief, p. 25.) This argument is without merit because it misunderstands the protection afforded by the Equal Pro: tection Clause of the Fourteenth Amendment. The Fourteenth Amendment Equal Protection Clause guarantees that no state will “deny any person within its jurisdiction the equal protection of the laws.” “The basic tenet of the equal protection clause is not that all persons must be treated equally, but rather that all persons similarly situated must be treated equally.” Smith v. State, 518 So.2d 174, 176 (Ala.Crim.App.1987). “ ‘The equal protection clause does not mean that a state may not draw lines that treat one class of individuals differently from others. The test is whether the difference in treatment is an invidious discrimination.’ ” Craig v. State, 410 So.2d 449, 454 (Ala.Crim.App.1981) (quoting Lehnhausen v. Lake Shore Auto Parts Co., 410 U.S. 356, 93 S.Ct. 1001, 35 L.Ed.2d 351 (1973)).

Here, Edwards cannot show that there was selectivity in enforcement or that the circuit court’s failure to provide a “consciousness of innocence” instruction was some form of invidious discrimination. All defendants in Alabama are similarly treated; no defendant in Alabama is entitled to an instruction on “consciousness of innocence.” No defendant is entitled to an instruction on “consciousness of innocence” because, as discussed above, such an instruction is an incorrect statement of Alabama law. That the State may request the inverse instruction has no bearing on Edwards’s rights under the Equal Protection Clause, because the Courts of Alabama have long recognized that an instruction stating that evidence of flight is admissible to show consciousness of guilt is a correct statement of Alabama law. See, e.g., Sinkfield v. State, 669 So.2d 1026, 1028 (Ala.Crim.App.1995). Because Edwards’s requested jury charge was an incorrect statement of Alabama law, no criminal defendant would be entitled to such an instruction. Therefore, Edwards cannot show intentional selectivity in the denial of his requested jury charge, and Edwards has not demonstrated a violation of his rights under the Equal Protection Clause. Accordingly, no basis for reversal regarding this issue exists.

II.

Edwards next contends that the circuit court erred in denying his motion for a judgment of acquittal because the State failed to prove all elements necessary to support his murder conviction. Specifically, Edwards argues that the State failed to prove he intended to murder Nina and that the evidence demonstrated only that a “tragic accident occurred on the night of January 18, 2011.” (Edwards’s brief, p. 25.)

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

Gavin v. State, 891 So.2d 907, 974 (Ala.Crim.App.2003), cert. denied, 891 So.2d 998 (Ala.2004) (quoting Ward v. State, 610 So.2d 1190, 1191 (Ala.Crim.App.1992)).

““‘Circumstantial evidence alone is enough to support a guilty verdict of the most heinous crime, provided the jury believes beyond a reasonable doubt that the accused is guilty.” White v. State, 294 Ala. 265, 272, 314 So.2d 857 (Ala.1975), cert. denied, 423 U.S. 951, 96 S.Ct. 373, 46 L.Ed.2d 288 (1975). “Circumstantial evidence is in nowise considered inferior evidence and is entitled to the same weight as direct evidence provided it points to the guilt of the accused.” Cochran v. State, 500 So.2d 1161, 1177 (Ala.Crim.App.1984), affirmed in pertinent part, reversed in part on other grounds, Ex parte Cochran, 500 So.2d 1179 (Ala.1985).’ ”

Hollaway v. State, 979 So.2d 839, 843 (Ala.Crim.App.2007) (quoting White v. State, 546 So.2d 1014, 1017 (Ala.Crim.App.1989)).

“ ‘In reviewing a conviction based on circumstantial evidence, this court must view that evidence in the light most favorable to the prosecution. The test to be applied is whether the jury might reasonably find that the evidence excluded every reasonable hypothesis except that of guilt; not whether such evidence excludes every reasonable hypothesis but guilt, but whether a jury might reasonably so conclude. United States v. Black, 497 F.2d 1039 (5th Cir.1974); United States v. McGlamory, 441 F.2d 130 (5th Cir.1971); Clark v. United States, 293 F.2d 445 (5th Cir.1961).’”

Bradford v. State, 948 So.2d 574, 578-79 (Ala.Crim.App.2006) (quoting Cumbo v. State, 368 So.2d 871, 874-75 (Ala.Crim.App.1978)).

A person commits the offense of murder if, “[wjith intent to cause the death of another person, he or she causes the death of that person or of another person.” § 13A-6-2(a)(1), Ala.Code 1975. In a prosecution for murder, the intent of the defendant “must be inferred by the jury from a due consideration of all of the material evidence.” Rivers v. State, 624 So.2d 211, 213 (Ala.Crim.App.1993).

Contrary to Edwards’s assertion, the State presented sufficient evidence from which the jury could infer that he murdered Nina. Chastity testified that she received a text message from Nina that indicated Nina was ready to leave Edwards. Shortly after, Chastity received a threatening message from Edwards. Chastity further testified that while she was on the telephone with Edwards, she could hear Nina in the background saying, “please, stop.” (R. 70.)

Although Edwards claimed that the shooting was an accident — the result of a struggle over the handgun Nina was holding — forensic evidence cast doubt on Edwards’s version of events. A distance estimate placed the muzzle of the handgun between four and five feet from Nina when it was fired, and Nina, who was right handed, was shot in her right wrist, which indicates that she was not holding the gun in her hand at the time she and Edwards were struggling. Because Edwards shot Nina with a handgun, the jury could have readily concluded that Edwards intended to kill Nina when he pulled the trigger.

To the extent that Edwards argues that the State’s evidence conflicted with his version of the events on the night of January 18, 2011, “conflicting evidence presents a jury question which is not subject to review on appeal.” Barnes v. State, 571 So.2d 372, 374 (Ala.Crim.App.1990) (citing Willis v. State, 447 So.2d 199, 201 (Ala.Crim.App.1983)). “ ‘The weight of the evidence, and the credibility of the witnesses, and inferences to be drawn from the evidence, where susceptible of more than one rational conclusion, are for the jury alone.’ ” Turrentine v. State, 574 So.2d 1006, 1009 (Ala.Crim.App.1990) (quoting Walker v. State, 416 So.2d 1083, 1089 (Ala.Crim.App.1982)). Although conflicts in the evidence existed, the State’s evidence, when considered as a whole, could have permitted the jury to reasonably infer that Edwards murdered Nina. The jury weighed the evidence and found Edwards guilty. It is not this Court’s responsibility to reweigh the evidence. Gavin, 891 So.2d at 974. Accordingly, no basis for reversal exists regarding this issue.

Based on the foregoing, the judgment of the circuit court is affirmed.

AFFIRMED.

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

      . Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).