source: Caselaw Access Project

author: MOORE, Judge. THOMPSON, Presiding Judge,

license: Public Domain

text:
    Jason Michael SNOYMAN v. Katrina Moore SNOYMAN.
    2110544.
    Court of Civil Appeals of Alabama.
    Oct. 5, 2012.

      J. Christopher Capps, Dothan, for appellant.
    Thadius W. Morgan, Jr., Enterprise, for appellee.
   On Rehearing Ex Mero Motu

MOORE, Judge.

This court’s opinion of September 7, 2012, is withdrawn, and the following is substituted therefor.

Jason Michael Snoyman (“the father”) appeals from a custody-modification judgment of the Dale Circuit Court (“the trial court”) awarding Katrina Moore Snoyman (“the mother”) custody of the parties’ oldest child, A.S. We reverse.

Procedural History

The parties were divorced by a judgment entered by the trial court on November 8, 2007. Pursuant to that judgment, the father was awarded custody of the parties’ four children. On August 15, 2011, the mother filed a petition seeking a modification of the custody of the children. The mother asserted that the father was unable to be physically present in the home with the children due to his military duty. Specifically, she stated that the father had told her she could have custody of the children from July 16, 2011, through the end of the 2011-2012 school year based on his deployment orders. The mother further asserted that the children had indicated that their father and his fiancé had physically mistreated the children and that the fiancé had employed corporal punishment against the children in violation of the trial court’s previous order. She also asserted that the father had hit the parties’ oldest child, A.S., across the face on at least two occasions. The mother requested sole custody of the parties’ children and an award of child support.

Also on August 15, 2011, the mother filed a motion for temporary custody of the parties’ children, asserting that the father had informed the mother that he was being deployed and that she would have the children from July 16, 2011, until the end of the school year and that the Enterprise school system would not allow her to enroll the children without a custody order from the trial court. The mother also asserted that the children had informed her that they were being physically abused by the father and his fiancé.

On August 19, 2011, the mother filed a renewed motion for emergency ex parte temporary custody, asserting that there was an ongoing investigation by the Coffee County Department of Human Resources regarding an incident in which the father had allegedly physically abused A.S. The father filed a response to the mother’s motion on August 26, 2011, denying the allegations therein. On August 31, 2011, the trial court entered an order denying the mother’s motion for emergency temporary custody and setting her petition for a custody modification for a hearing on November 28, 2011.

On September 19, 2011, the mother filed a motion to change venue from Dale County to Coffee County; the trial court denied that motion on September 27, 2011. Following ore tenus proceedings, the trial court entered a judgment on December 16, 2011, that stated, in pertinent part:

“This cause is before the court on the mother’s Petition to Modify the divorce decree entered in this case on November 8, 2007. In that order the father was awarded custody of the parties’ minor children. Thereafter the mother petitioned to modify the order of custody in the divorce decree and after a trial the mother’s request to modify the children’s custody was denied. However, several provisions of the order regarding visitation were modified including allowing the mother specific telephonic visitation.
“The first issue to be addressed in this case is the proper standard of proof to be applied. It has been held that in order to change custody after an initial custody determination has been made there must be a showing that there has been a material change in circumstances; that the good of the proposed change will offset the disruptive effect of uprooting the child and that the proposed change in custody will materially promote the minor child’s best interests. Ex Parte McLendon, 455 So.2d 863 (Ala.1984); Cupp v. Cupp, 976 So.2d 1010 (Ala.Civ.App.2007); Adams v. Adams, 21 So.3d 1247 (Ala.Civ.App.2009).
“The mother contends that there has been a material change in circumstances as evidenced by the father’s act of domestic violence against the parties’ oldest child, [A.S.]. The mother argues that in light of the domestic violence that the proposed change in custody will more than offset the disruptive effect of uprooting the children and the change will materially promote the children’s best interests. The mother further contends that the father has intentionally thwarted her efforts to have telephonic visitation with the children which is further evidence of the need to change custody.
“The father admits that he slapped the oldest child on the cheek but contends it was a one time event that will not be repeated and that it was in an effort to calm her down at a time that she was being defiant by yelling at him and she was also being very disrespectful. He contends it was in the nature of necessary discipline rather than abuse or domestic violence. The father denies that he is intentionally denying the mother access to the children by telephone. It is the father’s contention that the children are extremely busy with their school work and extracurricular activities and that they are unable to speak with their mother when she calls.
“In regard to the mother’s claim that the father has committed an act of domestic violence, it is the law of this state that if the trial court determines that domestic violence has occurred that a rebuttable presumption arises that custody should not be awarded to the perpetrator of such violence. Section 30-3-131, Code of Alabama [1975]. The incident between the father and daughter clearly rises to the level of domestic violence. Therefore the issue before the court is whether the father’s explanation of the reasons for the incident between he and the oldest daughter rebuts the presumption that he should not have custody of her or her siblings. After considering the evidence presented on that issue the court finds that the incident was a one time event that hopefully will not be repeated and was in response to certain actions by the child. Even though the court considers the father’s actions to be domestic violence the court believes that under the circumstances the presumption that he should not be allowed custody has been rebutted.
“The next issue before the court is in regard to the oldest child’s custodial preference. The court notes that the child’s custodial preference is a factor that should be considered by the court even though that preference is not controlling. Nauditt v. Haddock, 882 So.2d 364 (Ala.Civ.App.2003). It has further been stated that in considering the child’s preference the court should also consider the child’s age, maturity, and reasons for the custodial preference. Toler v. Toler, 947 So.2d 416 (Ala.Civ.App.2006); Family Law in Alabama, 4th Edition (2009). Therefore in light of the aforestated caselaw language the court must consider the oldest child’s level of maturity and the reasons for her custodial preference. The court finds that the child has a reasonable level of maturity for a twelve year old but the court is concerned about the reasons for her stated preference. There was testimony presented that the mother was not as strict in her discipline and rules as the father and that the children were allowed more freedom in their mother’s home including being allowed to stay up late at night.
“Another factor to be considered is the consistent finding by the appellate courts that siblings should not be separated without a compelling reason. Dunn v. Dunn, 972 So.2d 810 (Ala.Civ.App.2007). Therefore the issue to be determined is whether there is a compelling reason to separate these siblings. After considering the evidence presented, the court finds that the domestic violence incident between the father and oldest daughter rises to the level of a compelling reason to separate these siblings.
“In summary, the court finds that the mother has met her burden of proof by showing that a material change in circumstances has occurred in this case. The court finds further as to the child, [A.S.], that the positive good of residing with her mother outweighs any disruptive effect of the change and that the proposed change will materially promote the child’s best interests. The court finds further that there is a compelling reason to allow her to reside with her mother and to continue the other children in their father’s custody.
“Therefore in regard to the children, [K.S.], [R.S.,] and [N.S.,] the court finds that the mother has failed to show a material change in circumstances or that the change would offset the disruptive effect or that the change would materially promote the children’s best interests.”

The trial court then granted the mother’s modification petition as to A.S. and awarded the mother custody of A.S., but it denied the petition as to the parties’ other children, K.S., R.S., and N.S. The trial court awarded each parent visitation and telephone visitation with the child or children not in his or her custody and denied all other requests.

The father filed a postjudgment motion on December 28, 2011. On that same date, the father filed a motion for an immediate stay of enforcement of the trial court’s judgment; the trial court entered an order on January 13, 2012, determining that the custodial exchange of A.S. had already taken place and, thus, that the father’s motion for a stay was moot. The mother filed a motion to amend the trial court’s judgment on January 5, 2011, requesting that the trial court rule on her request for child support. On January 27, 2012, the trial court entered an order denying the father’s postjudgment motion. On February 3, 2012, the trial court entered an order stating that it was deviating from the Rule 32, Ala. R. Jud. Admin., child-support guidelines and declining to award the mother child support. The father filed his notice of appeal to this court on March 6, 2012.

Facts

The parties were divorced on November 8, 2007. The father testified that he is a pilot in the United States military and that he is stationed in North Carolina. According to the father, because he had been scheduled to deploy just before he took the parties’ children to visit the mother during the summer of 2011, he had made plans to allow the children to stay with the mother for the 2011-2012 school year. The father testified, however, that he had injured himself and was unable to deploy with his unit as planned, that he had notified the mother that he was not deploying, and that he had picked the children up from their summer visitation with the mother on August 20, 2011.

The mother testified that she lives in Enterprise with her new husband in a three-bedroom house that they rent. Although the mother testified that she is employed, she testified that, at the time of the hearing, she was on unpaid medical leave and was not receiving any income.

The mother testified that, during her summer visitation with the children, they had told her “very disturbing stuff.” The mother testified that the children had described an incident to her in which the father had backhanded A.S., who was 12 years old at the time of the hearing, twice in the face and that, during that same incident, he had held his hand over A.S.’s mouth and pinned her against the wall in the air. The mother testified that, in response to the children’s telling her about that incident, she had contacted a social worker and had taken the children to the police department. She stated that she had also filed an action in which she had sought a protection-from-abuse order on behalf of the children but that that action had been dismissed. The mother testified that she had also contacted the Family Advocacy Program on the father’s military base and had informed them of what the children had described to her. The mother also testified that the children had told her that the father had hit the parties’ son, K.S., with a spiked belt and left bruises on his thighs and buttocks, that the father had thrown A.S. into walls and onto the ground, and that the father had withheld food from A.S. or given her very little food because he was angry with her.

According to the mother, the father had denied her telephonic contact with the children, which had previously been ordered by the trial court. She also testified that she had not seen the children since the father had picked them up from their summer visitation with her on August 20, 2011.

The father testified that, at the time of the hearing, he was engaged but that his fiancé had not been residing with him and the children since March or April 2011 because she was attending college in Texas. The father testified that neither he nor his fiancé had physically mistreated the children. With regard to the incident involving A.S. described by the mother, the father testified that A.S. had been “mouthing off’ to him while she was supposed to be cleaning her room, that he had warned her, and that he felt he needed to give her a quick little slap across the mouth to “hush her up.” He stated that he had not intended to injure A.S., and that he had not pinned her against the wall, but that he had lightly covered her mouth for three to five seconds to stop her from talking. The father testified that he did not typically employ physical punishment with the children but that he had spanked them before; he also stated that it had been a long time since he had had to go that far in disciplining them. The father testified that the incident with A.S. had been raised in the parties’ previous court hearing in 2010 and that he had not physically disciplined the children since the last court hearing. According to the father, he has since employed discipline like “time outs” and grounding when the children misbehave.

The father testified that he had been contacted and interviewed by a number of agencies regarding the mother’s allegations of abuse. He testified that the investigation by the Cumberland County Social Services Department in North Carolina had been concluded and that no -wrongdoing on his part had been found. He stated that he had not allowed the mother to speak with the children since August 2011 for the children’s emotional stability based on guidance he had received from the Cumberland County Social Services Department.

The father testified that every time the children return from visiting the mother, their behavior is erratic and it takes them a few weeks to return to a normal routine. According to the father, A.S. was experiencing the physical and emotional changes of adolescence, but she had not been “shy” in talking to the father about these changes, and he had tried to make her comfortable.

The children testified in camera. A.S. testified that the father’s fiance no longer lived in the father’s house and had been gone for approximately a year. A.S. testified that the father had struck her in the face a couple of months before school had let out. She stated that he had slapped her face, that she was up against the wall, and that he had covered her mouth, but that he had not lifted her off the ground. According to A.S., the father was just trying to discipline her and she was being loud. She stated that, when the father slapped her face, she tried to step away and his fingernail caught her face, leaving a bruise. She testified that that incident had happened “like, a year ago” and that, since then, she and her siblings just get grounded and that that seems to work more effectively. A.S. stated that the father had never hit her like that or treated her like that on any other occasion and that she had never seen the father strike the other children like he had struck her on the face.

A.S. testified that the father does not answer the mother’s telephone calls anymore. She stated that she was happy living at the father’s house, but, she said, she thought that she was happier at the mother’s house. A.S. stated that she was sure the mother and the father each love her just as much as the other but that she thinks the mother shows it a lot more. A.S. testified that she loves both of her parents. She stated that she felt like there would be more freedom at the mother’s house and that summer visitation with the mother had been fun. A.S. testified that, if she were separated from her siblings, she would miss them. She also testified that she would be happiest living with the mother, even if it meant being separated from her siblings, so long as she was able to talk to her siblings every night. She testified that she would prefer not to be separated from her siblings but that it might be better so long as they could contact each other at least once a day.

K.S. testified that he would prefer to continue living with the father because the father’s house is “better” than the mother’s house; he stated that the father’s house is nicer and bigger and that the children get “kind of better food” and “better health” at the father’s house. K.S. stated that he had a lot of friends in North Carolina and that he is comfortable there. He testified that he does not get in trouble much but that, when he does, he has to sit on his bed for a “time out.” K.S. also stated that he had not gotten into trouble while he was visiting the mother during their summer visitation. He testified that he and his brother, N.S., have a bunk bed at the mother’s house and that he is “squooshed” when he stays there. K.S. stated that there are bugs at the mother’s house and that he does not like the mother’s house; he also stated, however, that there is nothing about staying with the mother that makes him uncomfortable. He testified further that he did not know if he would want to continue living with the father if it meant being separated from one or more of his siblings.

R.S., the parties’ daughter who was eight years old at the time of the hearing, testified that she likes living with the father and that the father’s house is bigger than the mother’s house. She testified that, if she gets into trouble at the father’s house, the father grounds her or puts her in “time out.” She stated that the father used to spank them but that he has “pretty much” stopped and that the children get grounded instead. R.S. testified that she did not know where she would prefer to live, that it is a lot of fun at both houses, and that she would be comfortable living with the mother or the father. N.S., the parties’ six-year-old son, testified that the mother had been kind of mean when they had visited her during the summer but that he had liked the toys that were at her house. He testified that he does not like the mother’s husband and that the mother and her husband had called him “Bubba” and he does not like being called that. He testified that he would rather live with the mother because she has fun toys and video games and because she allows the children to stay up really late and the father does not.

It was undisputed that each child was doing very well in school and that they were involved in extracurricular activities.

Standard of Review

This court outlined the applicable standard of review in C.L.B. v. D.L.O., 61 So.3d 325, 328 (Ala.Civ.App.2010):

“The standard of appellate review of a child-custody judgment based on ore tenus evidence is deferential.
“ ‘ “When evidence in a child-custody case has been presented ore tenus to the trial court, that court’s findings of fact based on that evidence are presumed to be correct. The trial court is in the best position to make a custody determination — it hears the evidence and observes the witnesses. Appellate courts do not sit in judgment of disputed evidence that was presented ore tenus before the trial court in a custody hearing.” ’
“Burgett v. Burgett, 995 So.2d 907, 912 (Ala.Civ.App.2008) (quoting Ex parte Bryowsky, 676 So.2d 1322, 1324 (Ala.1996)). An appellate court will not reverse a trial court’s judgment as to custody in such a case unless the evidence fails to support the trial court’s custody determination so that the appellate court must conclude that that determination is ‘ “plainly and palpably wrong.” ’ Ex parte Perkins, 646 So.2d 46, 47 (Ala.1994) (quoting Phillips v. Phillips, 622 So.2d 410, 412 (Ala.Civ.App.1993)).
“ ‘ “[E]ven under the ore tenus rule, ‘[wjhere the conclusion of the trial court is so opposed to the weight of the evidence that the variable factor of witness demeanor could not reasonably substantiate it, then the conclusion is clearly erroneous and must be reversed.’ ” B.J.N. v. P.D., 742 So.2d 1270, 1274 (Ala.Civ.App.1999) (quoting Jacoby v. Bell, 370 So.2d 278, 280 (Ala.1979)).’
“Cheek v. Dyess, 1 So.3d 1025, 1029 (Ala.Civ.App.2007).”

Discussion

The father argues that the trial court erred in modifying the custody of A.S. because, he says, the evidence did not meet the custody-modification standard set forth in Ex parte McLendon, 455 So.2d 863 (Ala.1984).

“The burden set out in [Ex parte ] McLendon [, 455 So.2d 863 (Ala.1984),] requires the parent seeking a custody change to demonstrate that a material change in circumstances has occurred since the previous judgment, that the child’s best interests will be materially promoted by a change of custody, and that the benefits of the change will more than offset the inherently disruptive effect resulting from the change in custody. Ex parte McLendon, 455 So.2d at 866.”

Dean v. Dean, 998 So.2d 1060, 1065 (Ala.Civ.App.2008).

The father argues that the trial court erred in awarding the mother custody of A.S. because, he says, the mother failed to present sufficient evidence supporting the allegations in her petition. The father asserts that the trial court erred because the incident involving A.S. referred to by the mother does not rise to the level of domestic violence, and, thus, he argues, it was improper for the trial court to modify custody of A.S. based on that incident.

The father testified that the incident in which he had slapped A.S. had been raised at a previous hearing on the mother’s modification petition in June 2010. A.S. testified, however, that the incident occurred “a couple months before school let out.” Based on A.S.’s testimony, the trial court could have concluded that the incident had occurred in the spring of 2011, some eight months before the hearing was conducted. Section 80-8-134, Ala.Code 1975, provides that, in custody-modification proceedings, “a finding that domestic or family violence has occurred since the last custody determination constitutes a finding of change in circumstances.” (Emphasis added.) Because the trial court could have interpreted A.S.’s testimony as indicating that the incident in which the father slapped A.S. had occurred in 2011, after the parties were last in court on a previous modification petition in 2010, we conclude that the trial court did not err in considering that incident.

Section 30-3-131, Ala.Code 1975, provides:

“In every proceeding where there is at issue a dispute as to the custody of a child, a determination by the court that domestic or family violence has occurred raises a rebuttable presumption by the court that it is detrimental to the child and not in the best interest of the child to be placed in sole custody, joint legal custody, or joint physical custody with the perpetrator of domestic or family violence. Notwithstanding the provisions regarding rebuttable presumption, the judge must also take into account what, if any, impact the domestic violence had on the child.”

The father asserts that the incident in which he slapped A.S. did not rise to the level of domestic violence and that the trial court erred in finding that it did. We note, however, that, although the trial court concluded that that incident amounted to domestic violence, it also proceeded to conclude that the father had overcome the presumption following from the finding of domestic violence that the father should not have custody of the children.

Regardless, in accordance with § 30-3-131, the trial court was required to take into account any impact the domestic-violence incident had had on A.S. The father asserts on appeal that there was “no testimony as to what, if any, impact was had by the incident.” We agree. Neither the mother nor A.S. offered any testimony indicating that the incident had had a negative impact on A.S. A.S. testified that she knows the father loves her, that the father was just trying to discipline her when he slapped her, that she had never seen the father strike her siblings, and that he had never hit her like that or treated her like that on any other occasion. Section 30-3-134 provides that the trial court’s finding of domestic violence constitutes a finding of a change in circumstances. Assuming, without deciding, that that finding amounted to a finding of a material change in circumstances, as is required under McLendon, that is not the end of our inquiry. Under McLendon, the mother was not only required to demonstrate a material change in circumstances, she was also required to show “that the child’s best interests will be materially promoted by a change of custody, and that the benefits of the change will more than offset the inherently disruptive effect resulting from the change in custody.” Dean, 998 So.2d at 1065. The trial court’s finding that the father had rebutted the presumption in § 30-3-181 that it was not in A.S.’s best interests to remain in the father’s custody indicates that the mother had not satisfied her burden of proving that it would be in A.S.’s best interests for her custody to be modified. There was also no evidence presented indicating that the benefits of the change of custody of A.S. from the father to the mother would offset any disruptive effects from that change.

Although the trial court was able to consider the testimony of A.S. in formulating its judgment, this court stated in Glover v. Singleton, 598 So.2d 995, 996 (Ala.Civ.App.1992):

“Here, there is simply no evidence to show that a change of custody is necessary. At trial, there was no mention of the child’s needs or the ability of the father to care for her. There is certainly nothing to indicate that the mother is anything less than an exemplary parent. It does not appear from the child’s testimony that she is particularly unhappy in her mother’s home. The child merely prefers to live with her father at this time. Under Alabama law, this is simply not enough to justify a change of custody.”

In the present case, excepting the trial court’s findings regarding the incident in which the father slapped A.S., the only factor considered by the trial court in modifying the custody of A.S. was A.S.’s preference. Like in Glover, the evidence revealed that A.S. loves the mother and the father and that she is happy in both homes, but that she simply prefers to live with the mother. That is simply not enough to justify a change in custody.

Because the evidence in the present case did not meet the burden required for a modification of custody discussed in McLendon, we reverse the trial court’s judgment modifying the custody of A.S., and we remand the case for the entry of a judgment consistent with this opinion.

ON REHEARING EX MERO MOTU: OPINION OF SEPTEMBER 7, 2012, WITHDRAWN; OPINION SUBSTITUTED; REVERSED AND REMANDED.

BRYAN and THOMAS, JJ., concur.

THOMPSON, P.J., dissents, with writing, which PITTMAN, J., joins.

THOMPSON, Presiding Judge,

dissenting.

Appellate review of a judgment modifying custody when the evidence was presented ore tenus is limited to determining whether there was sufficient evidence to support the trial court’s judgment. Cheek v. Dyess, 1 So.3d 1025, 1029 (Ala.Civ.App.2007). After reviewing the record in this case, I believe that there is sufficient evidence to support the trial court’s judgment and that the judgment is not plainly and palpably wrong. Therefore, I would affirm the judgment of the trial court.

PITTMAN, J., concurs.

      . See Rich v. Rich, 887 So.2d 289, 303 (Ala.Civ.App.2004) (Yates, P.J., dissenting) ("[A] finding of domestic abuse under § 30-3-134 may not always be a 'material' change in circumstances....”).


author: BRYAN, Judge.

text:
    ALABAMA REAL ESTATE APPRAISERS BOARD v. Joshua M. SMITH.
    2110718.
    Court of Civil Appeals of Alabama.
    Oct. 5, 2012.

      Luther Strange, atty. gen., and Neva C. Conway, asst. atty. gen., Alabama Real Estate Appraisers Board, for appellant.
    Thomas A. Radney and David G. Thomas of Radney, Radney & Jackson, L.L.C., Alexander City, for appellee.
   BRYAN, Judge.

The Alabama Real Estate Appraisers Board (“the Board”) appeals from a judgment of the Randolph Circuit Court modifying an order of the Board disciplining Joshua M. Smith. We reverse and remand.

Smith is a certified residential-real-property appraiser. In 2006, Smith was acting as a “mentor appraiser” to Charles William Jaggers, who was licensed as a trainee real-property appraiser. Smith assigned Jaggers to appraise a property containing a single-family house (“the property”) located in Fruithurst. Jaggers conducted the work necessary for the appraisal, and he prepared the appraisal report (“the report”). Both Jaggers and Smith signed the report in November 2006, and the report lists Jaggers as the appraiser and Smith as the “supervisory appraiser.” As the supervisory appraiser, Smith certified in the report that he had directly supervised Jagger; that he agreed with the analysis, opinions, statements, and conclusions in the report; and that he accepted full responsibility for the contents of the report.

In August 2008, the Board received a complaint against Smith concerning the report, and the Board subsequently conducted an investigation. In August 2010, the Board filed an administrative complaint against Smith concerning the report. The complaint alleged that Smith had violated certain provisions of the Alabama Real Estate Appraisers Act, § 34-27A-1 et seq., Ala.Code 1975, and certain rules governing appraisers. The Board appointed a hearing officer to hold an evidentiary hearing, and the hearing officer held the hearing in October 2010. After receiving ore tenus and documentary evidence, the hearing officer issued a recommended order, which the Board adopted as its decision. The Board’s decision made extensive factual findings and concluded that Smith had violated various rules and statutory provisions governing real-estate appraisers; those findings and conclusions will be discussed in more detail below. The Board suspended Smith’s appraiser’s license for one month and levied against him an administrative fine of $5,000.

Smith appealed the Board’s decision to the circuit court. On August 25, 2011, the circuit court entered an order modifying the Board’s punishment of Smith by suspending his appraiser’s license for six months, fining him $2,500, and publicly reprimanding him. However, the circuit court’s order stayed the modified punishment of Smith for six months and permitted him to continue to work as an appraiser during that period. The order further stated: “At the end of the six (6) month period, if [Smith] has had no further findings by the Board, then the findings, conclusions, punishments and public reprimand of the [Circuit] Court as set out in this case will be DISMISSED.” (Capitalization in original.) On March 15, 2012, more than six months after its order was entered, the circuit court entered a judgment dismissing the case. Although the circuit court purported to simply dismiss the action appealing the Board’s decision, the circuit court actually modified the Board’s decision. We reach this conclusion by reading the March 15, 2012, judgment dismissing the ease together with the August 25, 2011, order that modified the Board’s punishment and then stayed the modified punishment for six months. By staying the modified punishment and then dismissing the case after the expiration of the six-month stay, the circuit court effectively negated the Board’s punishment of Smith and replaced it with a probationary period. The Board appealed the circuit court’s judgment to this court.

At the hearing, Samuel Davis, an investigator for the Board, testified that he had investigated Smith’s appraisal of the property. Davis’s testimony served as the primary basis of the Board’s findings. The Board found, in pertinent part:

“There were two discrepancies between data set forth in the report regarding the ... property and the actual state of the ... property. [Smith] argues that it is impossible for the Board to know the state of the ... property in 2006, [when the appraisal was conducted,] because [Davis,] the Board’s investigator[,] did not make his inspection until 2009. However, with respect to these two particular discrepancies, this argument is not persuasive for reasons that will be set forth herein. The discrepancies are as follows:
“... The report states that the ... property had two upstairs bedrooms .... The report contains a printed building sketch_ That sketch indicates that a closet exists in the outside corner of each of these bedrooms. [Davis], upon inspection, determined that there are no closets in these bedrooms. While he was unable to enter the structure, he was able to look through the windows. He also took photographs through the windows of the interior of these bedrooms. There were no closets in these corners. Additionally, from the exterior of the structure, he measured the wall length available on these corners for a closet. Windows are present on both walls close to the corners where these closets were supposed to have been located, which restrict the available space. The measurements taken from the outside by [Davis] indicate that only one foot, seven inches existed on the front measurement, and two feet 10 inches existed on the side wall measurement. This means that any sueh closet would be implausibly small. The only way to make a larger closet would be to obstruct the windows. Nevertheless, there is no indication in the photographs taken by [Davis] and, indeed, [Davis] observed no signs, that closets had ever been in these two corners. Indeed, [Smith’s working file contains] a hand sketch of the floor plan of this structure, which was probably made [in 2006, when the appraisal was conducted].... The sketch of the second floor shows two bedrooms, but shows that there are no closets. Additionally, [Smith] offered no reliable testimony to the effect that closets ever existed in these bedrooms. [Smith] never made an inspection of the ... property. Therefore, there are four bases for finding that no closets existed in the upstairs bedrooms [in 2006]. Those bases are (1) there was not enough room in these bedrooms for a closet to exist; (2) there were no closets in 2009[, when Davis inspected the property,] and there was no physical indication that there had ever been any closets in these corners; (3) the hand sketch ... contained in [Smith]’s working file ... demonstrates that there were no closets in these bedrooms at the time the sketch was drawn; and (4) [Smith] did not submit any reliable testimony based on personal knowledge that closets did exist in these bedrooms in 2006. Therefore, [the Board] finds that [Smith] misrepresented in the report that closets existed in the upstairs bedrooms.
"... The report states that this property contained a central heating and central air conditioning [ (‘A/C’) ] system. The report indicates that there were two individual units which, presumably, meant that there were two central A/C compressors. However, the investigation of the Board determined that this house contained two window units and no central heating and air conditioning. Again, [Smith] argues that the Board’s inspection was made in 2009, three years after [Smith]’s report [was prepared], and that things could change in the structure in that time frame. However, [the Board] finds that there was no central heating and air conditioning in the ... property at the time of [Smith]’s inspection. When the Board made its inspection, there was absolutely no sign that central heating and air conditioning ever existed in this structure. The floors and the ceiling were visible and showed no signs of duct work or vents. There was no evidence that any ducts or vents ever existed in any part of the structure. [Smith] says that perhaps all evidence of a preexisting central heating and air conditioning system had been removed. However, based upon the condition of the house, such a conclusion is unwarranted. Further, there is no indication that a pad for a central heating and air conditioning unit was ever situated outside the structure. The only indication of heating and air conditioning in the structure are the two gravity units in the walls. [Smith] admits that he really does not know whether central heating and air conditioning ever existed in this structure because he did not inspect it. It is untenable to think that a central heating and air conditioning system existed in this structure. Therefore, [the Board] finds that [Smith] misrepresented in the report the fact that central heating and air conditioning existed [on] the ... property.
“... In addition to the two discrepancies, there are inadequacies or failures of [Smith] to properly prepare the report in accordance with the Uniform Standards of Professional Appraisal Practice [ (‘USPAP’) ] and there are other errors in the factual reporting. These are as follows:
“On Page 2 of 6 of the ... Report ... there is a block beside [the] ‘Sales Comparison Approach’ [category] labeled ‘Quality of Construction.’ The appropriate response to place in that block is an evaluation as to whether the ... property rates a fair, average, good, or some other similar designation. Instead of appropriately making the evaluation in this fashion, [Smith] indicated that the [quality of construction] was ‘vinyl siding.’ For the comparable[ properties] in the same block he indicated that they were brick/veneer siding, wood siding, and wood siding[] These are inappropriate designations, and do not comport with the requirements of USPAP.
“On Page 3 of 6 of the ... Report ... there is a block beside the designation ‘Cost Approach’ which reads ‘Quality Rating from Cost Service.’ In this block [Smith] stated that the rating was average. However, this is an incorrect rating for the ... property. As listed on the report, the source of this cost data is [the] Marshall and Swift residential estimator.[] [Davis] testified with respect to the Marshall and Swift estimator.... [Davis] testified that the ... property fell within the fair quality range, not average. Whereas[] the Marshall and Swift fair quality criteria called for eight-foot interior ceilings, the ... property had two bedrooms with seven-foot interior ceilings. The fair quality criteria set forth therein lists ‘flat roof or low-pitch roof.’ The ... property had a low-pitched roof. The ‘fair’ criteria referenced ‘low-quality fixtures’ as a fixture count of ten or below. The ... property had only six fixtures. The ‘fair’ quality criteria included an owner-built (not professional) reference, and [Davis] determined, upon investigation, that some of the construction did indeed appear to be owner built. [Davis] found below-quality workmanship, which is another criteria under ‘fair’ quality construction. Indications of below-quality workmanship in the ... property include a wall-mounted heat pump with a large gap between the top of the heat pump and the wall; a countertop that does not fit properly, the lack of handrails on the stairs and very narrow stairs, a kitchen outlet with a hole in the sheetrock larger than the outlet cover, no doors on the downstairs closets, and outside drain pipes emptying into the yard. These conditions are not the type that would likely develop from poor maintenance or destructive [forces]. [The Board] finds that these conditions existed in 2006.
“[Smith] argued that there are certain features of the ... property that actually exceed the criteria for average quality. He also points out that the ... property meets or exceeds most of the average quality criteria in the Marshall and Swift estimator. In this regard, [Davis], who is himself a well-qualified Real Property Appraiser, and [Smith] disagree. The scales tip in favor of the Board’s position on this point by virtue of the following explanation.
“[Davis] examined Property Record Cards on the ... property and the three comparable[ properties]. The 2006 Property Record Card for the ... property lists the quality class as [‘] minus.[’] The Code definitions in the Alabama Department of Revenue’s Alabama Appraisal Manu[a]l ... state that E minus means ‘fair’ quality construction. The Department of Revenue has a classification code system for various levels of quality and uses plus and minus signs to indicate structures that fall between the classifications.... Class E describes a residence that might be considered slightly below average or fair. Class F is a low-cost or poor type of structure. An E minus indicates a less than below average property. The E minus means that the ... property should be rated as ‘fair’ quality construction. For all of the reasons set forth herein, the quality of construction of the ... property, using the cost approach, should have been identified as ‘fair,’ not average.
“The report fails to [accurately] state the differences between the ... property and the comparable [properties]. There clearly are differences between the property and the comparable [properties], but [Smith] reported that there were no differences in certain material aspects. For example, on Page 2 of 6 of the report ... under [the category entitled] Sales Comparison Approach, in the heating/eooling block [Smith] states that all four properties have central heating and cooling. This is simply not true. Additionally, under [the] Functional Utility [block], [Smith] reports that all of the properties are average. This is clearly incorrect as will be further set forth herein. In the ... Report, Page 2 of 6 ... under [the category entitled] Sales Comparison Approach, the block entitled ‘Condition’ describes all of the properties as average. Again, this is not correct. Additionally, there is no adjustment for differences in the ages of the properties. Some comment should have been made with respect to these differences. [Smith] reported the ... property virtually throughout [the report] at a higher classification than warranted when comparing the [property] to the comparable[ properties].
“As set forth in [the] paragraph [directly] above, the functional utility of the ... property is listed as average. This evaluation does not comport with the actual status of the property. The layout of the ... property is inferior to the layout of the comparable [properties]. Two upstairs bedrooms in the ... property without closets and the lack of an upstairs bathroom causes the bedrooms to be functionally obsolete. In fact, it is quite arguable that the two upstairs bedrooms should not have been listed as bedrooms at all. Further, the floor plan is functionally obsolete. All of the comparable [properties] had two bathrooms and the ... property had only one. The floor plan of the ... property required that a person in an upstairs bedroom traverse a narrow set of stairs with no hand rail through either the kitchen or one of the downstairs bedrooms to get to the only bathroom in the house. [Davis] testified that none of the comparable [properties] suffered from functional obsolescence. Two of the comparable [properties] were ranch-style houses with all rooms on one floor.
“Further, [Smith] did not address functional obsolescence in his cost[-]approach [assessment], [Smith] should have used a method calculated to account for functional obsolescence. For example, [Smith] could have used a cost-to-cure factor in his analysis, [ie., analyzing how much it would cost to cure the functional obsolescence,] but did not do so.
“... Had [Smith] not allowed the discrepancies referenced herein, and had [Smith] not failed to comply with the [USPAP], there would have been a different outcome in this appraisal.
“... [Smith] denied any wrongdoing. He stated that he did not observe the ... property. However, his failure to inspect is irrelevant to the issues herein regarding the propriety of the report for which he was responsible.
“[Smith] gave his opinions with regard to various aspects of the criticisms offered by [Davis] to the effect that he is right about all analysis performed and data reflected in the report. Many of these opinions have been previously addressed in this Order. Clearly, however, [Smith]’s opinions in these regards do not warrant much weight.
“... [Smith] argues that a public reprimand or a suspension would harm him financially. This is certainly a consideration; however, it cannot be determinative of the issues and the ultimate [decision by the Board].”

Based on these findings, the Board found that Smith had violated six rules of the Uniform Standards of Professional Appraisal Practice (“USPAP”): (1) USPAP Rule 1-1 (a), which requires an appraiser to correctly employ recognized methods and techniques that are necessary to produce a credible appraisal; (2) USPAP Rule 1-1(b), which prohibits an appraiser from committing a substantial error, omission, or commission that significantly affects an appraisal; (3) USPAP Rule l-4(a), which requires an appraiser to analyze available comparable-sales data to indicate a value conclusion when a sales-comparison approach is necessary; (4) USPAP Rule 1-4(b)(ii), which requires an appraiser to analyze available comparable-cost data “to estimate the cost new of the improvements” when a cost approach is necessary for credible results; (5) USPAP Rule 1-4(b)(iii), which requires an appraiser to analyze available comparable data “to estimate the difference between the cost new and the present worth of the improvements” when a cost approach is necessary for credible assignment results; and (6) USPAP’s Ethics Rule prohibiting an appraiser from “communicatfing] assignment results in a misleading or fraudulent manner” or “communicatfing] a misleading or fraudulent report or knowingly permitting] an employee or other person to communicate a misleading or fraudulent report.”

The Board also explicitly punished Smith under four provisions of § 34-27A-20(a)(6)-(9), AlaCode 1975. Under that statute, the Board may revoke a license, suspend a license, or levy a fine for:

“(6) Violation of any of the standards for the development or communication of real estate appraisals as provided in this section.
“(7) Failure or refusal without good cause to exercise reasonable diligence in developing an appraisal, preparing an appraisal, in preparing an appraisal report, or in communicating an appraisal.
“(8) Negligence or incompetence in developing an appraisal, in preparing an appraisal report, or in communicating an appraisal.
“(9) Willfully disregarding or violating this chapter or the regulations of the board for the administration and enforcement of this chapter.”

In reviewing a decision of an administrative agency, such as the Board, this court’s standard of review is the same as that of the circuit court. Alabama Dep’t of Envtl. Mgmt. v. Legal Envtl. Assistance Found., Inc., 973 So.2d 369, 375 (Ala.Civ.App.2007). Section 41-22-20(k), Ala.Code 1975, governs our review and the circuit court’s review of the Board’s decision in this case. In pertinent part, it provides:

“(k) Except where judicial review is by trial de novo, the agency order shall be taken as prima facie just and reasonable and the court shall not substitute its judgment for that of the agency as to the weight of the evidence on questions of fact, except where otherwise authorized by statute.... The court may reverse or modify the decision or grant other appropriate relief from the agency action ... if the court finds that the agency action is due to be set aside or modified under standards set forth in appeal or review statutes applicable to that agency or if substantial rights of the petitioner have been prejudiced because the agency action is any one or more of the following:
“(1) In violation of constitutional or statutory provisions;
“(2) In excess of the statutory authority of the agency;
“(3) In violation of any pertinent agency rule;
“(4) Made upon unlawful procedure; “(5) Affected by other error of law;
“(6) Clearly erroneous in view of the reliable, probative, and substantial evidence of the whole record; or
“(7) Unreasonable, arbitrary, or capricious, or characterized by an abuse of discretion or a clearly unwarranted exercise of discretion.”

Our review of the Board’s conclusions of law and its application of the law to the facts is de novo. Ex parte Wilbanks Health Care Servs., Inc., 986 So.2d 422, 425 (Ala.2007).

The circuit court offered no explanation for its decision to modify the Board’s punishment of Smith. By effectively reducing the punishment, the circuit court evidently determined that the punishment was too severe. Before discussing whether the Board’s punishment of Smith was too severe, we will first examine the Board’s determination of Smith’s culpability. As presented thoroughly in the Board’s decision, the Board heard Davis’s testimony indicating that Smith had violated six USPAP rules and four statutory provisions regarding the conduct of appraisers. “A presumption of correctness attaches to the decision of an administrative agency due to its recognized expertise in a specific, specialized area.” Hall v. Alabama Alcoholic Beverage Control Bd., 631 So.2d 1047, 1048 (Ala.Civ.App.1993). The Board’s findings in this case clearly involve the Board’s “expertise in a specific, specialized area.” Id. Although Smith disputed some of Davis’s opinions, it was within the Board’s authority to weigh the disputed evidence. A reviewing court “shall not substitute its judgment for that of the agency as to the weight of the evidence on questions of fact, except where otherwise authorized by statute.” § 41-22-20(k). There is no indication that the Board’s determinations regarding Smith’s appraisal fall into any of the categories found in § 41 — 22—20(k)(1)—(7) that would allow the circuit court to modify the Board’s decision. Based on Davis’s testimony and the deference given to the Board, we cannot say that the Board erred in determining that Smith violated the various rules and statutory provisions cited in the Board’s decision.

Further, the Board’s punishment of Smith does not fall into any of the categories found in § 41 — 22—20(k)(l)—(7) that would allow the circuit court to modify the Board’s decision in punishing Smith. We specifically note that the Board’s punishment of Smith is authorized by statute. The Board suspended Smith’s license for one month and levied against him an administrative fine of $5,000. Section 34-27A-20(a) permits the Board to, among other things, “suspend the [appraiser’s] license” and “levy fines as provided in subsection (c)” for violations enumerated in § 34-27A-20(a). In turn, subsection (c) of § 34-27A-20 provides: “In addition to the disciplinary powers granted in subsection (a), the board may levy administrative fines for serious violations of this chapter or the rules and regulations of the board of not more than $500 for each violation.” Regarding “the rules and regulations of the board,” § 34-27A-23, Ala.Code 1975, provides that “[a] licensed real estate appraiser shall comply with the current [US-PAP] approved by the board.” The Board has promulgated Rule 780-X-13-.01, Ala. Admin. Code (Alabama Real Estate Appraisers Board), which adopted the parts of the USPAP applicable in this case as rules governing appraisers. Thus, under § 34-27A-20(a), the Board was authorized to suspend Smith’s license for one month. Under § 34-27A-20(a) and (c), the Board was also authorized to fíne Smith $500 for each serious violation under § 34-27A-20(a) and the USPAP rules. The Board determined that Smith had violated 4 statutory provisions under § 34-27A-20(a) and 6 USPAP rules, for a total of 10 violations. Thus, at $500 per violation, the Board was authorized to fíne Smith $5,000 for the 10 violations. Accordingly, the Board had the statutory authority to levy the $5,000 fine in this case.

In sum, the Board acted within its discretion in punishing Smith, and the circuit court erred in modifying the Board’s decision. Based on the foregoing, we reverse the circuit court’s judgment, and we remand the case to the circuit court for the entry of a judgment consistent with this opinion.

REVERSED AND REMANDED.

PITTMAN, THOMAS, and MOORE, JJ., concur.

THOMPSON, P.J., concurs in the result, without writing.

      . The parties dispute whether the order of August 25, 2011, was a final judgment. Because that order did not finally resolve the issue of Smith's punishment, that order was not a final judgment. " ‘It is well established that a final judgment is a "terminal decision which demonstrates there has been a complete adjudication of all matters in controversy between the litigants.” ’ " Williams Power, Inc. v. Johnson, 880 So.2d 459, 461 (Ala.Civ.App.2003) (quoting Dees v. State, 563 So.2d 1059, 1061 (Ala.Civ.App.1990), quoting in turn Tidwell v. Tidwell, 496 So.2d 91, 92 (Ala.Civ.App.1986)).

      . The report lists three "comparable sale” properties and compares them to the property in several categories.

      . Davis testified that “Marshall and Swift” "is an evaluation-cost evaluation service that appraisers use to do reproduction cost when they're estimating reproduction cost in [using] the cost approach [analysis] on appraisals.”

      . It is unclear what the Board’s decision means when referencing “improvements” in the context of the USPAP rules. When referencing this particular USPAP rule, the Board explains that "[Smith] priced out the house with central heating and air conditioning when the house actually had wall heat pumps.” Presumably, the wall heat pumps were considered the actual "improvements” on the house that were not properly considered.


author: KELLUM, Judge. KELLUM, Judge.

text:
    Jason Andrew MURPHY v. STATE of Alabama.
    CR-10-0515.
    Court of Criminal Appeals of Alabama.
    Feb. 10, 2012.
    Opinion on Overruling of Rehearing Aug. 24, 2012.
    Certiorari Denied Oct. 12, 2012 Alabama Supreme Court 1111552.

      Allen K. Mitchell, Dothan; and Derek Evan Yarbrough, Dothan, for appellant.
    Luther Strange, atty. gen., and John M. Porter, asst. atty. gen., for appellee.
   KELLUM, Judge.

The appellant, Jason Andrew Murphy, was indicted for one count of criminal mischief in the first degree, a violation of § 18A-7-21, Ala.Code 1975; one count of burglary in the second degree, a violation of § 13A-7-6, Ala.Code 1975; one count of making a terrorist threat, a violation of § 13A-10-15, Ala.Code 1975; and five counts of attempted murder, a violation of §§ 13A-4-2 and 13A-6-2, Ala.Code 1975. Murphy subsequently filed a motion requesting that he be treated as a youthful offender. Following a hearing, the circuit court denied Murphy’s request for youthful-offender status. Thereafter, Murphy was convicted of one count of criminal mischief, one count of second-degree burglary, one count of making a terrorist threat, and one count of attempted murder. The circuit court sentenced Murphy to 10 years’ imprisonment for the first-degree criminal-mischief conviction; 15 years’ imprisonment for the second-degree burglary conviction; 10 years’ imprisonment for the making-a-terrorist-threat conviction; and 35 years’ imprisonment for the attempted-murder conviction, the sentences to be served consecutively. Additionally, the court ordered Murphy to pay a $2,000 fine and $1,000 to the crime victims compensation fund for each of the four convictions.

The evidence presented at trial established the following pertinent facts. On Thursday, February 1, 2007, Murphy, who was then living in Auburn, was in Dothan visiting his mother, Sharon Murphy. Murphy was congested, had a stuffy nose, and was coughing periodically. Murphy’s mother, a registered nurse, took Murphy to PrimeCare in Dothan, where he was examined by Dr. Steve Sherrer. After an examination, Dr. Sherrer prescribed Ave-lox (an antibiotic), Tessalon Perles (cough medicine), and Sudex (to reheve congestion). Dr. Sherrer also provided Murphy with an injection of Kenalog (a steroid for inflammation). Murphy took the Avelox and the Sudex that evening, but was awake for most of the night because of a severe headache. At this time, Murphy-experienced no problems with his memory and was not confused in any manner.

The following morning Murphy called PrimeCare to complain about his headache, and Dr. Sherrer prescribed Darvocet (pain medication), a drug to which Murphy may have been allergic. Later that day Murphy went back to PrimeCare, where he was examined by Dr. Michael Williams. Dr. Williams diagnosed Murphy with an ear infection, muscle-tension headaches, and neck strain. Dr. Williams was notified that Murphy, who was a member of the United States National Guard at the time, had a physical-fitness test with the National Guard the following day. Dr. Williams wrote a doctor’s excuse for Murphy, recommending that Murphy not participate in rigorous physical activity. That evening Murphy was again awake and talking with his mother until about 6:00 a.m.

The next day Murphy had to wake at 6:30 a.m. to attend drill with the National Guard. After drill, Murphy came home exhausted. Murphy’s mother testified that Murphy was experiencing problems with his “speech patterns ... where his train of thought was not very good.” (R. 1335.) Murphy was also confused and disoriented for most of the evening. Murphy again slept very little, talking with his mother until around 5:00 a.m., even though he had to attend National Guard drill the following day.

At drill the next day Murphy ignored Dr. Williams’s warnings and attempted to take the physical-fitness test. During the test, Murphy experienced chest pains, vomited, and passed out. Murphy was taken by a National Guard medic to Southeast Alabama Medical Center, where he stayed for approximately three hours. Murphy declined treatment and checked himself out of the hospital because he was feeling better.

The following morning Murphy and his mother went to see Dr. Warren Rollins, an ear, nose, and throat specialist. Dr. Rollins examined Murphy and diagnosed him with a sore throat. Dr. Rollins recommended Murphy undergo a chest X-ray and an EKG and that Murphy discontinue the use of Avelox because it could cause heart damage. During the examination Rollins noted Murphy showed “no signs of acute distress” and Murphy exhibited no speech, concentration or orientation problems. (R. 1364.)

Murphy and his mother left Dr. Rollins’s office at approximately 9:00 a.m., and returned home so they could make an appointment with PrimeCare for the chest X-ray and EKG. When Mrs. Murphy could not get an appointment for her son, she told Murphy to lay down and told Murphy that she would take him to another doctor when she got home from filling his prescriptions.

While Mrs. Murphy was out, Murphy left his mother’s home and drove to Prime-Care at approximately 9:45 a.m. Murphy entered PrimeCare agitated and angry, holding numerous bottles of medicine in his hands. Murphy approached the receptionist, Robin Dunn, and screamed “you gave me too much medicine, you are trying to make me have a heart attack.” (R. 137.) Christie McLean, the office manager, heard Murphy screaming and took him from the lobby to an examination room. At this time, McLean believed Murphy was agitated but coherent.

Murphy was then examined by Dr. Joseph Sewell, who noted Murphy’s blood pressure and heart rate were a bit higher than normal, but not dangerously high. Dr. Sewell ordered the chest X-ray and found no abnormalities. Dr. Sewell prescribed Mobic (an anti-inflammatory) and Albuteral (an inhaler) for Murphy; he directed Murphy to continue taking the antibiotics as he had been prescribed. As Murphy left PrimeCare, he looked at Dunn, smiled and calmly stated, “I’m going to the bank. I’m coming back to see you.” (R. 141-42.)

Not long thereafter, Michael Wright, an Iraq war veteran who had come to Prime-Care for a job-related physical, looked outside the waiting-room window and saw Murphy marching in “parade formation,” wearing a camouflage helmet and carrying a M14 rifle on his shoulder. (R. 762.) Wright stepped outside of PrimeCare and telephoned the police.

Dunn, whose reception desk faced PrimeCare’s glass front doors, also saw Murphy’s return. Murphy walked in the building and started firing his weapon. He shattered the glass windows that lined the front of the building and shot out the glass walls that separated the reception area from the waiting room. Dunn ducked as the shooting started, then ran and hid in an examination room with a few patients, believing that each shot fired was likely killing someone. As patients fled from the lobby and staff members scrambled to get out of the line of fire, Murphy began yelling, “I’m not here to hurt y’all. Get out, get out. I’m not mad with y’all- I’m mad with the army.” (R. 700-01.) Murphy was “upset” because of the difficulty he was having in getting a medical clearance from the National Guard for deployment to Iraq. (R. 1099.)

Jennifer Herring, human-resources director at PrimeCare, was in an examination room when she heard loud screaming. Herring ran to the reception area and saw employees crouched down and hiding and Murphy holding a gun and wearing his helmet. Once Herring saw the waiting room area was empty and that no patients or staff were in immediate harm, she went to McLean’s office. McLean had telephoned the police to report Murphy’s attack. McLean and Herring then escaped out the back door and ran to the top of the hill behind the PrimeCare facility.

When Herring realized other employees were still in the facility, she returned to the building with McLean to try and help as many people escape as possible. Herring was in the doorway of an exam room looking for patients when she heard another shot. Murphy had shot blindly through a closed door at the end of a hallway; the bullet passed by Herring and struck the lead wall of the X-ray room, causing the bullet to fragment. A fragment of the bullet grazed Herring, tearing her blouse and drawing a small amount of blood. This was the last shot fired by Murphy.

After all the employees and patients escaped from PrimeCare, a standoff ensued. Dothan Police Officer Frank Meredith was the negotiator on the scene. When Officer Meredith pulled up to the building he was under the impression that the gunman had fled; he was very surprised to see Murphy pointing a gun directly at him upon his arrival at PrimeCare. Officer Meredith ducked for cover behind the outer wall of the building and yelled his cellular phone number to Murphy. Murphy telephoned him; this contact led to three hours of negotiations, with frequent breaks where Meredith and Murphy would hang up and then call each other back. Murphy asked about the potential criminal charges that he faced; Murphy was especially interested in whether he would be charged with misdemeanors or with felonies. The police negotiators gave the phone to Assistant District Attorney David Atwell, who told Murphy to “stop this before it does turn out worse. You know, right now you may just be looking at broken windows.” (R. 1105-06.) Shortly after this conversation, Murphy put down his weapon, left Prime-Care, and was arrested by the SWAT team. The arresting officers found a handgun, a large amount of ammunition, and a knife in the PrimeCare lobby that Murphy had brought along with him but never used during the attack.

At trial, Murphy based his defense on a theory of temporary, drug-induced psychosis. The circuit court ordered Dr. Doug McKeown, a clinical and forensic psychologist, to determine Murphy’s mental state at the time he attacked the PrimeCare facility and to determine whether Murphy was competent to stand trial. Dr. McKeown reviewed numerous documents provided by the State and by Murphy, and interviewed Murphy when making his determination on Murphy’s mental state. Murphy was determined to be competent to stand trial.

At trial, the State offered expert testimony from Dr. McKeown. Dr. McKeown testified:

“[I]t was my opinion that he was capable of appreciating the nature and quality of his actions and behavior at that time; that the reports and information available were that he was taking different medications which could have had some type of an effect on him, but not to the point that it would have prevented him from carrying out purposeful behavior or knowing the difference between right and wrong.”

(R. 327.) McKeown also testified that Murphy’s actions during the police standoff, such as his negotiations with the police and his request for legal advice, suggested purposeful activity and the ability to reason — mental processes inconsistent with delirium or psychosis.

In addition to Dr. McKeown, the State presented testimony from the doctors who treated Murphy during the days leading up to the attack at the PrimeCare facility. The doctors who treated Murphy agreed that after examining Murphy there was nothing to indicate mental problems, even after Murphy had taken a number of prescription drugs. Dr. Sewell, the last doctor to see Murphy before the attack, wrote on Murphy’s chart “[ojriented times three, normal mood, affect, and normal cranial nerves as tested,” indicating that Murphy was normal after neurologic/psychiatric testing only a few minutes before his armed return to PrimeCare. (R. 437.)

Murphy offered expert testimony of two expert witnesses as part of his defense. Murphy’s expert witnesses presented testimony that conflicted with that of the State’s expert witnesses. Dr. Michael D’Errico, a forensic psychologist, performed a psychological evaluation of Murphy, interviewed Murphy’s brother and mother by telephone, and reviewed Murphy’s medical records from Southeast Alabama Medical Center, PrimeCare, and Dr. Rollins. It was Dr. D’Errico’s opinion that

“Mr. Murphy was experiencing side effects from a medication which caused him to vomit, feel nauseous, and become dehydrated, and his psychological — I mean his speech, his ability to orient himself to time, his ability to focus his attention, all of which were deteriorated at the time just prior to the offense, were representative of a substance-induced state of delirium.”

Dr. D’Errico testified that these combined factors would have impacted Murphy’s decision making and behavior. (R. 1138-39.)

In addition to Dr. D’Errico, Murphy also provided expert testimony from Dr. Brandi Odom, a doctor of pharmacy. Dr. Odom provided information about the various prescription medications taken by Murphy and testified that “given the medications that [Murphy] was taking, and from the interviews that I had and the information that I gathered, in my opinion I think that Mr. Murphy experienced drug-induced psychosis or drug-induced central nervous system effects which contributed to his actions around the time of the alleged offense.” (R. 1238.)

After both sides rested, the circuit court instructed the jury on the applicable principles of law. The jury returned a verdict finding Murphy guilty of one count of criminal mischief, one count of second-degree burglary, one count of making a terrorist threat, and one count of attempted murder as to Herring. This appeal followed.

I.

Murphy first contends that the circuit court erred by denying his request for youthful-offender status. Specifically, Murphy contends that his age, social history, and the fact that no one sustained physical injuries as a result of his criminal conduct support a finding that he should have been treated as a youthful offender. Nothing in the record indicates that Murphy objected to the circuit court’s denial of his request for youthful-offender status. Therefore, this issue was not properly preserved for our review. See Harris v. State, 794 So.2d 1214 (Ala.Crim.App.2000) (by failing to object, the appellant did not preserve for review whether trial court erred by denying his request for youthful-offender status); Withee v. State, 728 So.2d 684 (Ala.Crim.App.1998) (issue whether trial court erred by failing to grant defendant youthful-offender status was not preserved for review where defendant did not file a contemporaneous objection).

In any event, even, if the issue had been preserved for appellate review, Murphy would not be entitled to relief. A trial court has almost absolute discretion in deciding whether to grant or to deny a defendant’s application for youthful-offender status, and this Court will not overturn such a decision absent an affirmative showing that the decision was arbitrary or that it was made without some investigation or examination of' the defendant. Burks v. State, 600 So.2d 374 (Ala.Crim.App.1991). The trial court need not articulate on the record its reasons for denying a defendant youthful-offender status. Reese v. State, 677 So.2d 1239 (Ala.Crim.App.1996). “All that is required is that the trial court undertake an examination of the defendant sufficient to enable it to make an intelligent determination as to whether, in its discretion, the defendant is eligible for treatment as a youthful offender.” Gamble v. State, 791 So.2d 409, 419 (Ala.Crim.App.2000) (citing Fields v. State, 644 So.2d 1322 (Ala.Crim.App.1994)). “Generally, the trial court considers the nature of the crime charged, any prior convictions, the defendant’s age, and any other matters deemed relevant by the court.” Reese v. State, 677 So.2d at 1240.

In the instant case, the circuit court conducted a hearing on Murphy’s application for youthful-offender status. The record indicates that the circuit court considered the youthful-offender investigation report as well as the arguments of both parties at the hearing before denying Murphy’s request to be treated as a youthful offender. Therefore, we cannot say that the circuit court abused its discretion by denying Murphy’s application for youthful-offender status.

II.

Murphy also contends that the circuit court erred in denying his motion for a judgment of acquittal because, he argues, the State failed to present sufficient evidence to sustain his convictions for attempted murder and second-degree burglary.

“ ‘ “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.Crim.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.Crim.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)).

A.

Murphy first contends that the State presented insufficient evidence from which the jury could conclude that he attempted to murder Herring. Specifically, Murphy argues that the State failed to present sufficient evidence of his specific intent to murder Herring. The State concedes that “there was no evidence indicating that Murphy intended to kill Jennifer Herring, the victim in the sole attempted murder count under which [Murphy] was- convicted.” (State’s brief, p. 30.)

“The elements of the crime of attempted murder are intent to kill and an overt act towards commission of that act.” Bradford v. State, 734 So.2d 364, 369 (Ala.Crim.App.1999) (citing Chaney v. State, 417 So.2d 625 (Ala.Crim.App.1982)).

“ ‘Attempted murder is a specific intent crime.... An attempt to commit murder requires the perpetrator to act with the specific intent to commit murder. ... A general felonious intent is not sufficient.’ Free v. State, 455 So.2d 137, 147 (Ala.Cr.App.1984). To establish a prima facie case of attempted murder, the State must present evidence of the accused’s specific intent to kill, and of ‘some overt act in part execution of the intent to commit the crime ... which falls short of the completed crime; the difference between attempt and commission being that the act or step fails to produce the result intended.’ Broadhead v. State, 24 Ala.App. 576, 139 So. 115, 117 (1932).”

Minshew v. State, 594 So.2d 703, 704 (Ala.Crim.App.1991).

Our review of the record indicates there was insufficient evidence to support Murphy’s conviction for attempted murder. Murphy shot through a closed door, and it was impossible for Murphy to see what or who was behind that door when it was closed. Testimony at trial also demonstrated that Murphy was not aware that anyone was behind the door. While the shot could have hit Herring had she been in the hallway behind the door, that possibility alone does not show Murphy had the specific intent to commit murder when he fired the shot. Because the State presented no evidence indicating that Murphy intended to murder anyone when he shot into the hallway, the circuit court erred in denying Murphy’s motion for a judgment of acquittal as to the charge of attempted murder.

B.

Murphy further contends that the State failed to prove a prima facie case of second-degree burglary because, he argues, the State failed to prove that he unlawfully entered PrimeCare or that he unlawfully remained at PrimeCare with the intent to commit theft or a felony. Murphy contends that his presence at PrimeCare was not unlawful because, he says, he had license to be in the public areas of the facility and that license was never revoked. Murphy also contends that he could not have formed the requisite intent to commit a felony within Prime-Care because testimony of psychological experts at trial showed that his behavior resulted from a “drug-induced psychosis and/or drug Central Nervous System effects.” (Murphy’s brief, p. 39.)

“(a) A person commits the crime of burglary in the second degree if he or she knowingly enters or remains unlawfully in a building with intent to commit theft or a felony therein and, if in effecting entry or while in the building or in immediate flight therefrom, the person or another participant in the crime:
“(1) Is armed with explosives; or
“(2) Causes physical injury to any person who is not a participant in the crime; or
“(3) In effecting entry, is armed with a deadly weapon or dangerous instrument or, while in the building or in immediate flight from the building, uses or threatens the immediate use of a deadly weapon or dangerous instrument against another person....”

§ 13A-7-6(a), Ala.Code 1975. Alabama’s burglary statute further provides that “[a] person ‘enters or remains unlawfully in or upon premises when he is not licensed, invited or privileged to do so.” § 13A-7-1(4) Ala.Code 1975. “An unlawful entry or unlawful remaining constitutes the tres-passory element of burglary, which element, when coupled with the intent to commit a crime inside, forms the nucleus of the burglary offense.” Davis v. State, 737 So.2d 480, 482 (Ala.1999).

Our review of the record indicates that the State presented sufficient evidence from which the jury could have concluded that Murphy remained unlawfully on the premises of PrimeCare. The Alabama Supreme Court discussed the issue of unlawful remaining in Davis v. State, 737 So.2d 480. In Davis, the defendant was convicted of first-degree burglary after he entered the mobile home of an acquaintance, strangled her with a cord, and then stole a $50 money order. This Court overturned Davis’s conviction, finding that the State failed to present evidence indicating that Davis had entered the mobile home, or had remained in the mobile home, unlawfully. The Alabama Supreme Court reversed this Court’s judgment, holding: “Evidence of a struggle that gives rise to circumstantial evidence of revocation of a license or privilege can be used to show an unlawful remaining, a separate prong of the offense of burglary upon which a conviction can be based.” Davis, 787 So.2d at 483. After Davis, “[t]he State is no longer required to prove that the defendant broke and entered the premises. Instead, the strictures of that element have been replaced with the general requirement of a trespass on premises through an unlawful entry or an unlawful remaining.” Id.

The Davis Court also recognized that the termination of a license can be implied through circumstantial evidence. Davis, 737 So.2d at 483-84. First, the Davis Court stated that commission of a crime on the premises alone is not enough to create an implied termination of license. For instance, “evidence of a privileged entry followed by death from an injury inflicted by surprise or stealth and causing instantaneous death would not constitute circumstantial evidence of an unlawful remaining.” Davis, 737 So.2d at 485. However, the Supreme Court found that a less-than-instantaneous method of killing, like strangulation, or a struggle before death can create the inference of an implied revocation of a license, because “the jury reasonably could have found that [the defendant], from the point at which he began committing his criminal acts, remained unlawfully in [the victim’s] home with the intent to commit a crime.” Id. at 485. Our Supreme Court’s discussion in Davis demonstrates that the inference of unlawful remaining is permitted when the li-censor is aware of the commission of a crime on the premises, and the licensor’s reaction to the commission of that crime demonstrates that the perpetrator’s license to be on the premises has been revoked.

In the instant case, Murphy entered the publicly accessible areas of the PrimeCare facility with an M14 automatic rifle, a significant amount of ammunition, and a military helmet. Murphy then shot out the windows in the front of the building, shot out the glass in the reception area, and shot other items in the building. Murphy also shot through a doorway, just missing two PrimeCare employees. When Murphy started shooting, the patients and staff of PrimeCare fled from the building in terror. The PrimeCare staff and patients telephoned the police to remove Murphy from the building because they could not do so themselves in light of the danger Murphy presented. The reaction of PrimeCare’s employees to Murphy’s criminal acts implied that any license he may have had to be on the premises was revoked. The intent to revoke Murphy’s license was evidenced by the flight of all the PrimeCare staff and patients and their calling the police after Murphy started shooting. Therefore, the State provided sufficient circumstantial evidence from which the jury could infer that Murphy remained unlawfully on the premises of PrimeCare.

The record also indicates that the State presented sufficient evidence to support a conclusion by the jury that Murphy had the requisite intent to commit a felony when he entered PrimeCare. In a prosecution for second-degree burglary 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). The record indicated that Murphy took an M14 rifle, a pistol, a knife, a military helmet, and a significant amount of ammunition with him when he went to PrimeCare. Murphy also parked his vehicle behind PrimeCare near a park, well away from the parking lot where patients typically left their vehicles. While inside PrimeCare, Murphy committed two felonies. Murphy destroyed property worth at least $2,500 during his occupation of PrimeCare, constituting the felony of criminal mischief, a violation of § 13A-7-21. Murphy also terrorized PrimeCare’s employees and patients, constituting the felony of making terrorist threats, in violation of § 13A-10-15. Because the jury is allowed to infer intent “from a due consideration of all of the material evidence,” Rivers, 624 So.2d at 213, and because the material evidence indicated that Murphy entered PrimeCare with guns and live ammunition, then used the guns and live ammunition to commit two felonies, the logical inference is that Murphy intended to commit those felonies when he entered PrimeCare.

Murphy argues that his intent to commit those felonies should be negated because, he says, his drug-induced psychosis made it impossible for him to control his behavior. The jury was presented with conflicting evidence on this point. Murphy’s expert, forensic psychologist Dr. D’Errico, testified that the medications Murphy took during the week leading up to the incident at PrimeCare could have caused a substance-induced state of delirium, impacting Murphy’s ability to make decisions and to regulate his behavior. However, Dr. McKeown, the State’s forensic psychologist, testified that despite taking many medications, Murphy had the ability to appreciate the nature and quality of his actions and behavior while at PrimeCare.

“[Cjonflicting 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 conclude that Murphy intended to commit the felonious crimes that formed the basis for his second-degree burglary conviction.

Reviewing the evidence in a light most favorable to the State, we conclude that there was sufficient evidence to present the second-degree burglary charge to the jury. Therefore, the circuit court did not err in denying Murphy’s motion for a judgment of acquittal as to that charge.

III.

Finally, Murphy contends that the circuit court erred when it gave the jury the following charge:

“I charge you ladies and gentleman that ‘unlawfully remains’ includes a situation where the victim terminated the defendant’s license or privilege to remain on the premises and can be inferred where a shooting took place on the premises.”

(C. 104; R. 1411.) Murphy specifically contends that the circuit court’s charge amounted to an incorrect statement of the law and unduly prejudiced him. Relying on Davis v. State, supra, Murphy argues that “evidence of a commission of a crime, standing alone, is inadequate to support the finding of unlawful remaining” and therefore that it is improper for the jury to infer that a shooting on the premises automatically terminates a license to be there. (Murphy’s brief, p. 40.)

“ ‘A trial court has broad discretion in formulating its jury instructions, provided they are an accurate reflection of the law and facts of the case.’ ” Toles v. State, 854 So.2d 1171, 1175 (Ala.Crim.App.2002) (quoting Coon v. State, 494 So.2d 184, 186 (Ala.Crim.App.1986)).

Our review of the record indicates the circuit court’s use of the State’s requested charge number 10 accurately reflected the law and facts of the case. As discussed above, the Alabama Supreme Court’s decision in Davis offers guidance for when it is permissible for the jury to infer unlawful remaining for the purposes of a second-degree burglary conviction. In short, so long as the licensor is aware of the crime being committed and takes action inconsistent with the continuation of the license, that action acts as an implied revocation of the license, and the licensee’s further remaining on the premises becomes unlawful.

In the instant case, Murphy made PrimeCare’s patients and staff very aware of the commission of his crimes. Murphy shot an M14 assault rifle multiple times in the waiting room of a crowded medical facility. As soon as Murphy started shooting, the patients and staff of PrimeCare ran from the facility and telephoned the police. There is no question that the people inside PrimeCare were aware that the shooting had taken place, and there is no question that their reaction was inconsistent with Murphy’s retaining a license to remain lawfully on the premises. Requiring the staff of PrimeCare to ask Murphy to leave as he is shooting up the premises is unreasonable; their flight from the danger presented by Murphy is enough for the jury to infer Murphy’s license to remain at PrimeCare was revoked. Because of the timing and location of the shooting, there was no error on the part of the circuit court when it charged the jury that a shooting on the premises of PrimeCare created the inference that Murphy unlawfully remained on the premises.

Moreover, even if the jury charge that allowed the jury to infer that the license to remain at PrimeCare had been revoked solely because Murphy began shooting was in error, Murphy was not prejudiced by such a charge. “After finding error, an appellate court may still affirm a conviction or sentence on the ground that the error was harmless, if indeed it was.” Davis v. State, 718 So.2d 1148, 1164 (Ala.Crim.App.1995), aff'd, 718 So.2d 1166 (Ala.1998). Rule 45, Ala. R.App. P., provides, in pertinent part:

“No judgment may be reversed or set aside, nor new trial granted in any civil or criminal case on the ground of misdirection of the jury, the giving or refusal of special charges or the improper admission or rejection of evidence ... unless in the opinion of the court to which the appeal is taken or application is made, after an examination of the entire cause, it should appear that the error complained of has probably injuriously affected substantial rights of the parties.”

“The purpose of the harmless error rule is to avoid setting aside a conviction or sentence for small errors or defects that have little, if any, likelihood of changing the result of the trial or sentencing.” Davis, 718 So.2d at 1164.

Our examination of the record indicates that there was overwhelming evidence indicating that Murphy remained unlawfully at the PrimeCare facility. Murphy did much more than just shoot in a publicly accessible place; he terrorized a crowded medical building, shot in the general direction of patients and staff, and forced the PrimeCare staff to call the police because he was too dangerous to remove from the premises without help from the authorities. After the police arrived on the scene, Murphy remained at PrimeCare for another three hours until the police negotiated his surrender. These facts alone are enough to satisfy the unlawful-remaining element of second-degree burglary. Because the jury charge could have had no substantial impact on Murphy’s rights, any error in the jury charge was harmless beyond a reasonable doubt.

Conclusion

Based on the foregoing, Murphy’s convictions for one count of first-degree criminal mischief, one count of second-degree burglary, and one count of making a terrorist threat are affirmed. However, for the reasons set forth in Part II.A. of this opinion, Murphy’s conviction for the attempted murder of Jennifer Herring is due to be set aside and a judgment rendered in Murphy’s favor.

AFFIRMED IN PART; REVERSED AND JUDGMENT RENDERED IN PART.

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

On Application for Rehearing

KELLUM, Judge.

On rehearing, Jason Andrew Murphy argues that there was insufficient evidence to support his conviction for burglary in the second degree. Specifically, Murphy argues that the burglary charge against him can be upheld only if he had the specific intent to commit murder — as he was indicted for knowingly entering or remaining unlawfully at the PrimeCare facility with the intent to commit murder— therefore, this Court’s holding that there was insufficient evidence to support his attempted-murder conviction necessarily means that Murphy did not have the intent to murder necessary to support his burglary conviction. Although it is true that the second-degree burglary charge can only be upheld if Murphy had the specific intent to commit murder when he entered the PrimeCare facility, the record indicates that there was sufficient evidence to support the jury’s finding that Murphy intended to commit murder when he entered PrimeCare, despite this Court’s reversal of Murphy’s attempted-murder conviction.

In a prosecution for second-degree burglary, 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).

“Normally there is no direct evidence of intent. ‘ “ ‘Intent, we know, being a state or condition of the mind, is rarely, if ever, susceptible of direct or positive proof, and must usually be inferred from the facts testified to by witnesses and the circumstances as developed by the evidence.’” Ex parte C.G., 841 So.2d 292, 301 (Ala.2002), quoting Pumphrey v. State, 156 Ala. 103, 106, 47 So. 156, 157 (1908).’ ”

Brown v. State, 11 So.3d 866, 914 (Ala.Crim.App.2007). “ ‘The question of intent is hardly ever capable of direct proof. Such questions are normally questions for the jury.’ ” Id. at 914 (quoting Payne v. State, 946 So.2d 930, 935 (2006) (other citations omitted)).

In the instant case, our review of the record indicates that the State presented sufficient evidence from which the jury could conclude that Murphy intended to commit murder when he entered the PrimeCare facility. Murphy took with him when he went to the PrimeCare facility an M14 rifle, a pistol, a knife, a military helmet, and a significant amount of ammunition. On his way into the facility, Murphy shot out the windows in the front of the building, shot out the glass in the reception area, and shot other items in the building. Murphy also said that “he was there for the docs,” a statement that created the inference that he wanted to harm the doctors at the facility. Because the jury is allowed to infer intent “from a due consideration of all of the material evidence,” Rivers, 624 So.2d at 213, and because the material evidence indicated that Murphy launched a heavily armed assault on the PrimeCare facility and that he wanted to harm the doctors at the facility, the logical inference is that Murphy intended to commit murder when he entered PrimeCare.

Murphy asserts that this Court’s reversal of his conviction for attempted murder means that he cannot be guilty of second-degree burglary. Under § 13A-4-2, Ala. Code 1975, a person must intend to commit a specific offense in order to be guilty of an attempt. Murphy argues that “the combined not-guilty verdicts and this Court’s judgment as to the attempted-murder charge negate a finding, based on all of the evidence, that [Murphy] ever entertained the specific intent to murder.” (Murphy’s brief in support of application for rehearing, p. 4.) Therefore, Murphy appears to argue, the verdicts in his case were inconsistent and mutually exclusive and, thus, are due to be reversed.

The Alabama Supreme Court discussed inconsistent and mutually exclusive verdicts in Hammonds v. State, 7 So.3d 1055 (Ala.2008):

“‘“Inconsistency” between verdicts is generally understood to mean some logical impossibility or improbability implicit in the jury’s findings on several indictments or informations tried together or as between several counts of a single criminal accusation without severance of the counts.’ State v. Purdie, 144 Idaho 911, 174 P.3d 881, 883 (Ct.App.2007). An inconsistent verdict on different counts of a multiple-count indictment is permissible. A jury verdict on each count is independent; a verdict of either conviction or acquittal of one has no effect or bearing on another. A jury’s verdict may be inconsistent or even illogical but nonetheless permissible if it is supported by sufficient evidence. The rationale for allowing inconsistent verdicts is:
“ ‘(1) there is no way to know why the jury rendered an inconsistent verdict, and therefore such verdicts must be upheld in the interest of protecting lenity; (2) since the government cannot appeal inconsistent acquittals, it would be unfair to allow a defendant to appeal inconsistent convictions; and (3) the requirement of a sufficiency of the evidence review on appeal prevents any harm that could result from an inconsistent verdict.’
“State v. Purdie, 174 P.3d at 884 (citing United States v. Powell, 469 U.S. 57, 65-69, 105 S.Ct. 471 [83 L.Ed.2d 461] (1984) (footnote omitted)). This Court will not disturb guilty verdicts on the basis of apparent inconsistencies so long as there is sufficient evidence to support the verdicts. However, mutually exclusive verdicts are contradictory and cannot be reconciled. Verdicts are mutually exclusive if the existence of any of the elements of one offense negates the existence of any of the elements for another offense of which the defendant also stands convicted.”

7 So.3d at 1061.

We have carefully reviewed the record, as well as the Supreme Court’s holding in Hammonds. Even if the verdicts in Murphy’s case are inconsistent, they are not mutually exclusive. Contrary to Murphy’s argument, it was not legally impossible for the State to prove the elements of second-degree burglary without also proving that Murphy was guilty of attempted murder. For example, the jury could have reasonably concluded that Murphy intended to kill people inside PrimeCare when he entered the facility, but that his actions once inside PrimeCare were nothing more than reckless.

This Court’s duty is to determine whether there was legally sufficient evidence to support Murphy’s conviction for second-degree burglary. See Gavin v. State, 891 So.2d 907, 974 (Ala.Crim.App.2003). Based on the foregoing, we conclude that the State presented sufficient evidence indicating that Murphy intended to commit murder when he entered PrimeCare. The jury weighed the evidence and found Murphy guilty of second-degree burglary. A jury’s verdict may be inconsistent or even illogical but nonetheless permissible if it is supported by sufficient evidence. See Hammonds, 7 So.3d at 1061. Accordingly, Murphy’s application for rehearing has presented no grounds for reversal on this issue.

APPLICATION FOR REHEARING OVERRULED.

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