author: BURKE, Judge.

text:
    James THOMAS v. STATE of Alabama.
    CR-12-0491.
    Court of Criminal Appeals of Alabama.
    Aug. 30, 2013.
    Rehearing Denied Nov. 8, 2013.
    Certiorari Denied Jan. 17, 2014 Alabama Supreme Court 1130225.

      J.D. Lloyd, Birmingham; and H. Lewis Gillis, Montgomery, for appellant.
    Luther Strange, atty. gen., and Michael G. Dean, asst. atty. gen., for appellee.
   BURKE, Judge.

James Thomas appeals his conviction for a school employee having sexual contact with a student under the age of 19 years, a violation of § 13A-6-82, Ala.Code 1975, and his resulting sentence of 12 months in the custody of the Wilcox County Sheriff. Thomas was also charged with sexual abuse in the first degree, but the jury found him not guilty of that offense.

The State’s evidence indicated the following. In November 2010, the victim, P.H., was a 17-year-old senior at Wilcox Central High School, and Thomas was the principal of that school. On multiple occasions since P.H.’s sophomore year, Thomas addressed P.H. as “you old cheater” and asked her when she was going to call him. (R. 112.) During P.H.’s senior year, she worked as an aid in the school office. On November 15, 2010, while P.H. was working in the school office, Thomas privately asked her whether she was having sex with her close friend and classmate, Everett. P.H. responded that she was not having sex with Everett. The conversation was interrupted by another student entering the office. After the other student left the office, Thomas told P.H. that he had been watching her for a long time and that she did not know how “hot” she was making him. (R. 116.)

The next day, P.H. approached the two school secretaries in the school office and told them: “[Yj’all owe me a lunch because /all left me in there by myself with that pervert.” (R. 116.) One of the secretaries responded: “[Y]ou weren’t supposed to be in there by yourself alone.” (R. 117.) P.H. then left the office, but she returned to the office later that day to work. After P.H. returned to the school office, Thomas called P.H. into his office and closed the door behind her. Thomas then asked P.H. about her relationship with some of her male classmates, and he stated: “I just want you to remember you mine.” (R. 126.) Thomas then “rubbed [P.H.’s] hair back and he kissed [her] on the forehead.” (R. 128.) At that time, two school employees knocked on the door of Thomas’s office, and he had a short discussion with them in the doorway of his office. After those employees left Thomas’s office, he closed the door, grabbed P.H.’s neck, and kissed her on her lips. P.H. testified that she “pulled back” from Thomas, but he hugged her. (R. 129.) Thomas then grabbed P.H.’s hand, rubbed it against his penis, and stated: “[L]ook what you’ve done to me.” (R. 130.) P.H. immediately left Thomas’s office. As P.H. was leaving Thomas’s office, he asked her whether she was going to “blast [him] out.” Id. P.H. understood that question to concern whether she was going to tell anyone what he had done, and she responded that she was “not going to blast [him] out.” Id. As P.H. was walking out of the school office, she told one of the secretaries to “get [her] transfer papers ready because [she was] out of here.” Id. P.H. then met one of her friends in the hallway of the school, and she “fell in [his] arms crying.” Id. P.H. told some of her friends that Thomas “went too far” and that “he touched [her].” Id. Shortly after that event, the bell rang for the end of the school day.

Tranita Mack Crum, P.H.’s godmother, picked up P.H. from school that day. Crum noticed that P.H. looked upset, but Crum did not ask P.H. at that time whether anything was wrong. That evening, Crum sent P.H. a text message asking her whether anything was wrong. P.H. responded that “Mr. Thomas had tried her.” (R. 294.) Also, P.H. testified that during that evening, she pulled out the section of her hair above her forehead where Thomas had kissed her, and she scrubbed her lips with bleach. (R. 134-35.)

On appeal, Thomas first argues that the trial court erred when it denied his motion for a judgment of acquittal on the ground that the State presented insufficient evidence to support his conviction for violating § 13A-6-82, Ala.Code 1975. Specifically, Thomas argues that he did not engage in “sexual contact” with P.H. as that term is defined in § 13A-6-82.

This Court has stated:

“ ‘ “In determining the sufficiency of the evidence to sustain a conviction, a reviewing court must accept as true all evidence introduced by the State, accord the State all legitimate inferences therefrom, and consider all evidence in a light most favorable to the prosecution.” ’ Ballenger v. State, 720 So.2d 1033, 1034 (Ala.Crim.App.1998), quoting Faircloth v. State, 471 So.2d 485, 488 (Ala.Crim.App.1984), aff'd, 471 So.2d 493 (Ala.1985). ‘“The test used in determining the sufficiency of evidence to sustain a conviction is whether, viewing the evidence in the light most favorable to the prosecution, a rational finder of fact could have found the defendant guilty beyond a reasonable doubt.” ’ Nunn v. State, 697 So.2d 497, 498 (Ala.Crim.App.1997), quoting O’Neal v. State, 602 So.2d 462, 464 (Ala.Crim.App.1992). ‘ “When there is legal evidence from which the jury could, by fair inference, find the defendant guilty, the trial court should submit [the case] to the jury, and, in such a case, this court will not disturb the trial court’s decision.” ’ Farrior v. State, 728 So.2d 691, 696 (Ala.Crim.App.1998), quoting Ward v. State, 557 So.2d 848, 850 (Ala.Crim.App.1990). ‘The role of appellate courts is not to say what the facts are. Our role ... is to judge whether the evidence is legally sufficient to allow submission of an issue for decision [by] the jury.’ Ex parte Bankston, 358 So.2d 1040,1042 (Ala.1978).
“ ‘The trial court’s denial of a motion for judgment of acquittal must be reviewed by determining whether there was legal evidence before the jury at the time the motion was made from which the jury by fair inference could find the defendant guilty. Thomas v. State, 363 So.2d 1020 (Ala.Cr.App.1978). In applying this standard, this court will determine only if legal evidence was presented from which the jury could have found the defendant guilty beyond a reasonable doubt. Willis v. State, 447 So.2d 199 (Ala.Cr.App.1983). When the evidence raises questions of fact for the jury and such evidence, if believed, is sufficient to sustain a conviction, the denial of a motion for judgment of acquittal does not constitute error. McConnell v. State, 429 So.2d 662 (Ala.Cr.App.1983).’
“Ward v. State, 610 So.2d 1190, 1191 (Ala.Crim.App.1992).”

Gavin v. State, 891 So.2d 907, 974 (Ala.Crim.App.2003).

Section 13A-6-82, Ala.Code 1975, provides, in pertinent part:

“(a) A person commits the crime of a school employee having sexual contact with a student under the age of 19 years if he or she is a school employee and engaging in sexual contact with a student, regardless of whether the student is male or female. Consent is not a defense to a charge under this section.
“(b) As used in this section, sexual contact means any touching of the sexual or other intimate parts of a student, done for the purpose of gratifying the sexual desire of either party. The term includes soliciting or harassing a student to perform a sex act.”

It is undisputed that at the time of the incident, Thomas was a school employee and P.H. was a student under the age of 19 years. As it was before the trial court, Thomas’s primary argument on appeal is that there was no evidence indicating that he had sexual contact as defined by § 13A-6-82 with P.H. because, he says, there was no evidence indicating that he touched the sexual or other intimate parts of P.H. Thomas states that the act of a student touching the sexual or other intimate parts of a school employee is not proscribed by the plain language of § 13A-6-82. However, it is unnecessary for this Court to address Thomas’s primary argument because § 13A-6-82 also states that the term sexual contact “includes soliciting or harassing a student to perform a sex act.”

In his secondary argument, Thomas contends that, in addition to presenting no evidence indicating that he touched the sexual or other intimate parts of P.H., the State failed to present sufficient evidence indicating that he solicited or harassed P.H. to perform a sex act. As Thomas notes, the term “sex act” is not defined in § 13A-6-82. However, the preceding code section, § 13A-6-81, Ala.Code 1975, prohibits a school employee from engaging in “a sex act or deviant sexual intercourse with a student,” and defines “sex act” as “sexual intercourse with any penetration, however slight.” We note that those two code sections were enacted by the legislature as two sections of the same act. See Act No. 497, Ala. Acts 2010. “Generally, statutes covering the same or similar subject should be construed together to determine their meaning when possible.” Stewart v. State, 730 So.2d 1203, 1216 (Ala.Crim.App.1996). We therefore will construe the term “sex act” in § 13A-6-82 to mean sexual intercourse. Thus, we must determine whether the State presented sufficient evidence indicating that Thomas solicited or harassed P.H. to perform sexual intercourse.

The evidence indicates that Thomas asked P.H. when she was going to call him. Thomas told P.H. that he had been watching her for a long time and that she was making him “hot”. Thomas asked P.H. about her relationships with some of her male classmates, including a specific question regarding whether she had a sexual relationship with one of those classmates. Thomas told P.H.: “I just want you to remember you mine.” In the privacy of Thomas’s office, he rubbed P.H.’s hair, hugged her, and kissed her on her forehead and lips. Thomas then grabbed P.H.’s hand, rubbed it against his penis, and stated: “[L]ook what you’ve done to me.” Thomas’s actions caused P.H. to, among other things, rush out of the school office, cry, pull out a section of her hair, and scrub her lips with bleach; thus, there was evidence indicating that she was alarmed by his actions. Viewing all this evidence in the light most favorable to the State, we find that the jury by fair inference could have found that, based on Thomas’s words and conduct directed at P.H., he was seeking to have sexual intercourse with her. Therefore, the jury could by fair inference find that Thomas “solicit[ed] or harassed] [P.H.] to perform a sex act,” and, thus, that Thomas engaged in sexual contact with P.H. in violation of § 13A-6-82. We conclude that the trial court did not err in denying Thomas’s motion for a judgment of acquittal.

Finally, Thomas argues that the trial court erroneously defined the term “sexual contact” in its instructions to the jury. However, a review of the record shows that Thomas never objected to the trial court’s instructions based on this ground.

Rule 21.3, Ala. R.Crim. P., provides:

“No party may assign as error the court’s giving or failing to give a written instruction, or the giving of an erroneous, misleading, incomplete, or otherwise improper oral charge, unless the party objects thereto before the jury retires to consider its verdict, stating the matter to which he or she objects and the grounds of the objection. Opportunity shall be given to make the objection out of the hearing of the jury.”

“An objection must be specific enough to put the trial court on notice of any alleged error and provide the court with an opportunity to correct any error if necessary.” Finch v. State, 715 So.2d 906, 912 (Ala.Crim.App.1997). “It is well settled that ‘[t]he statement of specific grounds of objection waives all grounds not specified, and the trial court will not be put in error on grounds not assigned at trial.’ ” Spencer v. State, 58 So.3d 215, 246 (Ala.Crim.App.2008) (quoting Ex parte Frith, 526 So.2d 880, 882 (Ala.1987)). Furthermore, “[i]t is well settled that issues raised for the first time on appeal are not preserved for appellate review.” Hinkle v. State, 67 So.3d 161, 168 (Ala.Crim.App.2010).

In the present case, after the trial court completed its oral charge to the jury, defense counsel stated:

“With regard to our requested charge Number 1, we respectfully except the instruction that the Court has given and would renew our request that our requested charge Number 1 be given. We think that the Court’s instruction was limited and it did not fully put before the jury the defendant’s not taking the witness stand.”

(R. 427.) The defense’s requested jury charge number one concerned the fact that the defendant’s failure to testify cannot be considered in determining whether he is guilty. (C. 217.) It did not concern the definition of the term “sexual contact.”

During the jury’s deliberations, in response to a question from the jury concerning sexual contact, the trial court rein-structed the jury concerning the elements and definitions of the charges against Thomas. After the trial court gave those instructions, defense counsel stated:

“Judge, the defendant would except to the Court’s recharge of the jury.
“Sexual contact, both in terms of Count One and Count Two, the Court mentioned briefly the interplay of reasonable doubt as to the recharge. We say that the Court’s recharge gives undo emphasis on part of the Court’s instruction that credibility and inconsistencies of witnesses is a major part of the facts of this case and it’s that interplay of the whole that presents everything in a neutral manner. When the Court fails to give the complete charge again, it places undue emphasis on the sexual contact.
“And for those reasons, we except the Court’s additional instruction.”

(R. 434-35.) Concerning that objection, the trial court simply responded: “Okay.” (R. 435.)

Before the trial court, Thomas never argued that the trial court erroneously defined the term “sexual contact” in its instructions to the jury. Therefore, because the specific ground now raised on appeal was not raised before the trial court, Thomas’s claim is not preserved for our review.

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

AFFIRMED.

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


source: Caselaw Access Project

author:
PER CURIAM.
      JOINER, Judge,

license: Public Domain

text:
    Samuel BROWN v. STATE of Alabama.
    CR-11-1537.
    Court of Criminal Appeals of Alabama.
    Aug. 30, 2013.

      Amanda Staton Johnston, Prattville, for appellant.
    Luther Strange, atty. gen., and William D. Dill, asst. atty. gen., for appellee.
   On Return to Remand,

PER CURIAM.

Samuel Brown appeals the revocation of his split sentences imposed by the Montgomery Circuit Court. On June 15, 2000, Brown pleaded guilty to four counts of first-degree burglary, see § 13A-7-5, Ala. Code 1975; four counts of third-degree burglary, see § 13A-7-7, Ala.Code 1975; four counts of first-degree theft of property, see § 13A-8-3, Ala.Code 1975; three counts of second-degree theft of property, see § 13A-8 — 4, Ala.Code 1975; one count of third-degree theft of property, see § 13A-8-5, Ala. Code 1975; and one count of failing to register as a sex offender, see § 13A-11-200, Ala.Code 1975. In case number CC-0(M30, Brown was sentenced as a habitual offender with a weapon enhancement to 20 years in prison, split to serve 5 years in prison. In case numbers CC-00-431, CC-00-432, and CC-00-433, Brown was sentenced as a habitual offender to 15 years in prison, split to serve 3 years in prison. In case numbers CC-00-434, CC-00-435, and CC-00-436, Brown was sentenced as a habitual offender to 15 years in prison, split to serve 3 years in prison. In case numbers CC-00-437 and CC-00-438, Brown was sentenced to 10 years in prison, split to serve 3 years in prison. The sentences were to run consecutively.

On September 30, 2002, Brown appeared before the circuit court for a hearing regarding several prison disciplinaries he had received while incarcerated. Following the hearing, the circuit court revoked Brown’s split sentences and imposed his underlying sentences. It appears from the record that Brown did not appeal from the revocation of his split sentences.

On December 28, 2011, Brown filed a Rule 32 petition challenging the circuit court’s revocation of the split sentences. Specifically, Brown alleged that the circuit court violated his due process rights by revoking the probationary portion of his sentences without first conducting a hearing pursuant to Rule 27, Ala. R.Crim. P. The State conceded that Brown’s revocation hearing was unconstitutional; therefore, the circuit court granted relief and scheduled a new revocation hearing for April 26, 2012. Following the hearing, the circuit court entered a new order revoking the split portion of Brown’s sentences and imposing the underlying sentences. On June 11, 2012, Brown filed his notice of appeal.

On appeal, Brown argued, among other things, that the circuit court erroneously revoked the split portion of his sentences because his split sentences were illegal. Specifically, Brown asserted that his split sentences were illegal because the circuit court did not include a term of probation for any of his sentences.

This Court determined that the record was unclear regarding whether the circuit court imposed probationary periods on Brown’s split sentences. Consequently, on May 21, 2013, this Court remanded the cause, by order, to the circuit court with instructions for it to make specific findings of fact regarding whether probationary periods had been imposed. The circuit court held a hearing and, thereafter, found that it had not imposed any probationary periods. The circuit court then, in an attempt to remedy the error, imposed a split sentence.

Initially, this Court notes that the circuit court did not have jurisdiction on remand to impose a split sentence. This Court’s remand order permitted the circuit court only to make findings of fact. Accordingly, the decision to impose a split sentence was outside the scope of this Court’s remand and void. See Simmons v. State, 797 So.2d 1134, 1183 (Ala.Crim.App. 1999) (Actions “outside the scope of our remand order [are] void for lack of jurisdiction.”).

Further, § 15-18-8, Ala.Code 1975, provides:

“(a) When a defendant is convicted of an offense, other than a criminal sex offense involving a child as defined in Section 15-20-21(5), [Ala. Code 1975,] which constitutes a Class A or B felony and receives a sentence of 20 years or less in any court having jurisdiction to try offenses against the State of Alabama and the judge presiding over the case is satisfied that the ends of justice and the best interests of the public as well as the defendant will be served thereby, he or she may order:
“(1) That the convicted defendant be confined in a prison, jail-type institution, or treatment institution for a period not exceeding three years in cases where the imposed sentence is not more than 15 years, and that the execution of the remainder of the sentence be suspended notwithstanding any provision of the law to the contrary and that the defendant be placed on probation for such period and upon such terms as the court deems best. In cases involving an imposed sentence of greater than 15 years, but not more than 20 years, the sentencing judge may order that the convicted defendant be confined in a prison, jail-type institution, or treatment institution for a period not exceeding five years, but not less than three years, during which the offender shall not be eligible for parole or release because of deduction from sentence for good behavior under the Alabama Correctional Incentive Time Act, and that the remainder of the sentence be suspended notwithstanding any provision of the law to the contrary and that the defendant be placed on probation for the period upon the terms as the court deems best.”

(Emphasis added.)

It is well settled that under § 15-18-8, Ala.Code 1975, a circuit court “ ‘can split a sentence only if the defendant is placed on probation for a definite period following the confinement portion of the split sentence.’ ” Moore v. State, 871 So.2d 106, 109 (Ala.Crim.App.2003) (quoting Madden v. State, 864 So.2d 395, 398 (Ala.Crim.App.2002)). See also Hughes v. State, 518 So.2d 890, 891 (AIa.Crim.App. 1987) (“Application of § 15-18-8[, Ala. Code 1975,] necessitates suspension of that portion of the split sentence that is not actual confinement and placement of the convicted defendant on probation for that period.”). Here, the circuit court did not order Brown to serve probationary periods for his split sentences; therefore, the manner in which Brown was ordered to execute his sentences was illegal. Moore, 871 So.2d at 108.

Addressing a similar situation wherein the circuit court ordered an inmate to serve an illegal split sentence, this Court recently held:

“Initially, we note that, although the legality of Enfinger’s sentence was not first argued in the circuit court, we have held that when the circuit court does not have the authority to split a sentence under the Split Sentence Act, § 15-18-8, Ala.Code 1975, ‘the manner in which the [circuit] court split the sentence is illegal[,]’ Austin v. State, 864 So.2d 1115, 1118 (Ala.Crim.App.2003), and that ‘[m]atters concerning unauthorized sentences are jurisdictional.’ Hunt v. State, 659 So.2d 998, 999 (Ala.Crim.App.1994). Thus, this Court may take notice of an illegal sentence at any time. See e.g., Pender v. State, 740 So.2d 482 (Ala.Crim.App.1999).
“As explained above, Enfinger pleaded guilty to sexual abuse of a child under 12, see § 13A-6-69.1, Ala.Code 1975, and was sentenced, as an habitual felony offender, to 20 years’ imprisonment and that sentence was split and Enfinger was ordered to serve ‘time served in the custody of the Sheriff of Baldwin County, Alabama,’ followed by 3 years’ supervised probation. (Record on Return to Remand, C. 13-15.) The circuit court, however, did not have the authority, under the Split-Sentence Act, § 15-18-8, Ala.Code 1975, to split Enfinger’s sentence or to impose a term of probation.
“Section 15-18-8(a), Ala.Code 1975, specifically exempts from the Split-Sentence Act those offenders who have been convicted of ‘a criminal sex offense involving a child as defined in Section 15-20-21(5).’ Section 15-20-21(5), Ala. Code 1975, defines ‘criminal sex offense involving a child’ as ‘a conviction for any criminal sex offense in which the victim was a child under the age of 12 and any offense involving child pornography.’ Additionally, § 15-18-8(b), Ala.Code 1975, specifically precludes the circuit court from imposing a term of probation for offenders convicted of ‘a criminal sex offense involving a child as defined in Section 15-20-21(5), which constitutes a Class A or B felony.’ Thus, the circuit court did not have the authority to either impose a split sentence or to impose a term of probation. See § 15-18-8(a) and (b), Ala.Code 1975. Therefore, the ‘execution of [Enfinger’s] sentence is illegal.’ Simmons v. State, 879 So.2d 1218,1222 (Ala.Crim.App.2003).
“In cases where the circuit court had no authority to impose the Split-Sentence Act, the proper remedy has been to remand the case to the circuit court for that court to remove the split portion of the sentence. See e.g., Simmons, supra (holding that, the circuit court had no authority to split a sentence and remanding the case to the circuit court for that court to set aside the split portion of the sentence), Morris v. State, 876 So.2d 1176 (Ala.Crim.App.2003) (same); cf., Moore v. State, 871 So.2d 106 (Ala.Crim.App.2003) (holding that, although the circuit court had authority to split the sentence, the circuit court split the sentence in an improper manner, and remanding the case to the circuit court for that court to ‘reconsider the execution’ of the sentence), Austin, supra (same).
“Those cases, however, do not contemplate the specific facts of this case — that is, where the circuit court imposes a split sentence and a term of probation under the Split-Sentence Act when it had no authority to do so and later conducts a probation-revocation hearing at which it revokes a defendant’s probationary term and orders that the defendant serve the remainder of his underlying sentence in prison. Thus, the issue before this Court is whether the circuit court’s improper imposition of the Split-Sentence Act can be remedied by the circuit court’s conducting a probation-revocation hearing and revoking a defendant’s probation.
“As discussed above, because the nature of Enfinger’s guilty-plea conviction exempts him from application of the Split-Sentence Act, the circuit court had no authority to apply the Split-Sentence Act to Enfinger and no authority to impose a term of probation on Enfinger. See § 15-18-8(a) and (b), Ala.Code 1975. Because the circuit court had no authority to split Enfinger’s sentence or to impose a term of probation, it likewise had no authority to conduct a probation-revocation hearing and revoke Enfinger’s probation under § 15-18-8(c), Ala. Code 1975, which provides, in part, that under the Split-Sentence Act the circuit court ‘may revoke or modify any condition of probation or may change the period of probation.’ Because the circuit court had no authority to impose a term of probation or to revoke probation, the circuit court’s order revoking Enfinger’s probation is void.
“Because the circuit court’s probation order is void, the sentence in this case is analogous to the sentences at issue in Simmons and Morris. Thus, like those cases, we must remand this case to the circuit court for that court to remove the split portion of Enfinger’s sentence, See e.g., Simmons, supra; Morris, supra. To do so, the circuit court must ‘conduct another sentencing hearing and ... reconsider the execution of [Enfinger’s] 20-year sentence. Because the 20-year sentence was valid, the circuit court may not change it.’ Austin, 864 So.2d at 1119; Moore, 871 So.2d at 109-10.
“We recognize that the circuit court’s revocation of Enfinger’s probation in this case appears to reach a result that is no different than the result that was obtained in Simmons and Morris — i.e., the probation revocation in essence removed the unauthorized split. Those cases, however, did not involve merely the removal of an improper split. In each of those cases, the circuit court was instructed to consider on remand whether the removal of the split would affect the voluntariness of the defendant’s guilty plea. Further, the circuit court in each case was instructed that, if the defendant moved to withdraw his guilty plea, it should allow the defendant to do so. See Simmons, supra; Morris, 876 So.2d at 1178 (‘Because the split sentence was a term of the appellant’s plea agreement, if the appellant moves to withdraw his guilty plea, the circuit court should grant the motion. See Austin v. State, 864 So.2d 1115 (Ala.Crim.App.2008).’). To hold that the circuit court can remedy the imposition of an unauthorized split sentence by revoking a defendant’s probation, however, would prevent that defendant from being able to move to withdraw his guilty plea and thus would treat him differently than the defendants in Simmons and Morris were treated — i.e., after the circuit court conducts a resentencing, the defendant would not have the assistance of appointed counsel to move to withdraw his guilty plea under Rule 14.4(e), Ala. R.Crim. P.; instead, an indigent defendant would have to raise, pro se in a Rule 32 petition, the issue that the defendant’s guilty plea was involuntary.
“Furthermore, holding that a circuit court can remedy the imposition of an improper split sentence by revoking a defendant’s probation could lead to an absurd result. For example, a defendant serving a sentence that is improper under the Split-Sentence Act could be charged with violating the terms and conditions of his probation and the circuit court could thereafter revoke that defendant’s probation. On appeal, the defendant could contend that the evidence was insufficient to support the revocation of his probation, and if, after a review of the record, this Court determined that the defendant is, in fact, correct, we would be forced to hold that, although the evidence was insufficient to support the revocation, the imposition of the remainder of his sentence is correct because the circuit court could not have imposed a split sentence. Such a result is unsound and untenable.
“Because the circuit court did not have the authority to revoke Enfinger’s probation, its order revoking Enfinger’s probation is vacated, and this case is remanded to the circuit court for that court to resentence Enfinger in accordance with this opinion.
“Additionally, we note that, although the record indicates that Enfinger was convicted of sexual abuse of a child under 12 as the result of a ‘plea bargain’ (C. 8), the record is unclear as to whether Enfinger’s sentence was part of the plea bargain. Thus, ‘it is impossible for this Court to determine whether resen-tencing [Enfinger] will affect the volun-tariness of his plea.’ Austin, 864 So.2d at 1119. If the split sentence was a term of Enfinger’s ‘plea bargain,’ and, if he moves to withdraw his guilty plea, the circuit court should conduct a hearing to determine whether withdrawal of the plea is necessary to correct a manifest injustice. See Rule 14.4(e), Ala. R.Crim. P.”

Enfinger v. State, 123 So.3d 535, 539 (Ala. Crim.App.2012) (footnote omitted).

Similarly, Brown pleaded guilty and was improperly ordered to serve split sentences wherein the circuit court did not order Brown to serve any terms of probation. “The trial court did not have jurisdiction to split [Brown’s] sentenced] without ordering ... probationary period[s] to follow the confinement portion of the sentenced.” Moore, 871 So.2d at 109. Because the circuit court did not have jurisdiction to split Brown’s sentences in the manner in which it did, the circuit court did not have the authority to revoke the split sentences. Accordingly, the circuit court’s order revoking the split portion of Brown’s sentences is reversed and the cause is remanded with instructions for the circuit court to resentence Brown in accordance with this opinion.

The circuit court shall take all necessary action to see that the circuit clerk makes due return to this Court at the earliest possible time and within 42 days after the release of this opinion. The return to remand shall include a transcript of the proceedings conducted on remand.

REVERSED AND REMANDED WITH INSTRUCTIONS.

WELCH, KELLUM, and BURKE, JJ., concur.

JOINER, J., concurs in the result, with opinion. WINDOM, P.J., dissents.

JOINER, Judge,

concurring in the result.

Although I agree that this case is due to be remanded, I disagree with the main opinion to the extent that its relies on Enfinger v. State, 123 So.3d 535, 540 (Ala.Crim.App.2012), to suggest that on remand the only resentencing option for the circuit court is to remove the split portions of Brown’s sentences.

In Enfinger, as the main opinion explains, Enfinger pleaded guilty to sexual abuse of a child under 12 and was sentenced, as an habitual felony offender, to 20 years’ imprisonment, which was split, and Enfinger was ordered to serve “time served,” followed by 3 years’ supervised probation. Enfinger, 123 So.3d at 536. This Court noted that, because Enfinger pleaded guilty to sexual abuse of a child under 12, he was not eligible to receive a split sentence under § 15-18-8, Ala.Code 1975, and therefore this Court held that the circuit court did not have the authority to split Enfinger’s sentence or impose a term of probation. Id. at 537. Because the circuit court had no authority to impose a split sentence, this Court remanded the case to the circuit court for that court “to remove the split portion of Enfinger’s sentence.” Id. at 538.

Here, unlike Enfinger, Brown was, in fact, eligible to receive split sentences under § 15-18-8, Ala.Code 1975, and the circuit court had the authority to impose Brown’s split sentences. Thus, unlike En-finger, the error in this case is not the circuit court’s use of the split-sentence act, but, rather, the circuit court’s improper execution of the split sentence through the failure to impose terms of probation.

In Moore v. State, 871 So.2d 106 (Ala.Crim.App.2003), we held that when the circuit court has the authority to impose a split sentence but fails to impose a term of probation this Court must remand the case to the circuit court “to conduct another sentencing hearing and to reconsider the execution of [the defendant’s] ... sentence.” 871 So.2d at 109-10. In such a case, the circuit court on remand “may either split the sentence in compliance with § 15-18-8, [Ala.Code 1975,] ... or, if it determines that splitting the sentence is no longer appropriate, it may reinstate the [base] sentence.” Moore, 871 So.2d at 110. See also Madden v. State, 864 So.2d 395, 398-99 (Ala.Crim.App.2002).

In my view, the options on remand as outlined in Moore are available for the circuit court on remand in Brown’s case. Thus, as in Moore, on remand

“the circuit court [must] conduct another sentencing hearing and ... reconsider the execution of [Brown’s] 20-year sentence. Because the 20-year sentence was valid, the circuit court may not change it. See Wood v. State, 602 So.2d 1195 (Ala.Crim.App.1992). However, the court may either split the sentence in compliance with § 15-18-8, i.e., ordering no more than 5 years and no less than 8 years in confinement followed by a definite period of probation, or, if it determines that splitting the sentence is no longer appropriate, it may reinstate the full %0-year sentence.”

871 So.2d at 109-10 (emphasis added). Additionally, because the record does not indicate whether the split sentences were the result of a plea agreement

“the circuit court must also determine on remand if [Brown’s] plea was indeed a part of a plea agreement with the State. If the court determines on resen-tencing that splitting [Brown’s] sentence is no longer appropriate and that the original splitting of [Brown’s] sentence was a part of a plea agreement with the State,[] then resentencing would be a rejection of the plea agreement and the circuit court must allow [Brown] to withdraw his plea if [Brown] requests to do so.”

871 So.2d at 111. Finally, I think that, in the event the circuit court on remand splits the sentences in compliance with § 15-18-8, the circuit court is not precluded from thereafter conducting a revocation hearing to determine if the split portions of Brown’s sentences should be revoked.

Based on the foregoing, I respectfully concur in the result.

       Note from the reporter of decisions: On May 21, 2013, the Court of Criminal Appeals remanded diis case by order.

      . Section 13A-11-200, Ala.Code 1975, was repealed on July 1, 2011, by Act No. 2011-640, § 49, Ala. Acts 2011.

      . Brown must be afforded counsel during his resentencing.

         Note from the reporter of decisions: On December 13, 2013, on return to second remand, the Court of Criminal Appeals dismissed the appeal, without opinion.

      . Section 15-18-8, Ala.Code 1975, specifically exempts from eligibility to receive a split sentence those offenders who have been convicted of a "criminal sex offense involving a child as defined in Section 15-20-21(5), which constitutes a Class A or B felony.”

      . As a part of this inquiry under the particular facts of this case, the circuit court should also determine whether Brown entered into plea agreements that he be sentenced to split sentences with no probationary terms.


author: KELLUM, Judge.

text:
    Michael Anthony WESCOVICH v. STATE of Alabama.
    CR-12-1452.
    Court of Criminal Appeals of Alabama.
    Nov. 8, 2013.

      William Gregory Hughes, Mobile, for appellant.
    Luther Strange, atty. gen., and Marc Alan Starrett, asst. atty. gen., for appellee.
   On Return to Remand

KELLUM, Judge.

The appellant, Michael Anthony Wesco-vich, appeals from the circuit court’s revocation of his probation. The record indicates that in June 2010, Wescovich pleaded guilty to receiving stolen property in the second degree, a violation of § 13A-8-18, Ala.Code 1975. The circuit court sentenced Wescovich to 10 years’ imprisonment; however, that sentence was split, and Wescovich was ordered to serve 2 years’ imprisonment followed by 8 years’ supervised probation. Further, Wescovich was ordered to pay a crime-victims-compensation-fund assessment and other court-ordered moneys.

On May 20, 2013, Wescovich’s probation officer filed a delinquency report alleging that, following his arrest on new criminal charges of receiving stolen property in the second degree and theft of property in the third degree, Wescovich had violated the terms and conditions of his probation. Wescovich’s probation officer further alleged that Wescovich had failed to report to the probation office and that Wescovich had failed to pay his court-ordered moneys.

On June 5, 2013, the circuit court conducted a probation-revocation hearing. At the revocation hearing, Clark Bolton, a detective with the Mobile County Sheriffs Department, testified that on February 8, 2013, he investigated a report of a burglary made by Ross Thrower. Thrower claimed that someone broke into his house. In a telephone conversation, Thrower told Bolton that he believed that his stepdaughter and her boyfriend, Wescovich, were responsible for the crime. Thrower told Bolton that later that day he found the vehicle Wescovich and his stepdaughter were in and made contact with both of them as they were unloading from the vehicle the property stolen from Thrower’s house. Bolton subsequently questioned Thrower’s stepdaughter, who confessed to the burglary. Thrower’s stepdaughter would not tell who, if anyone, had committed the burglary with her. Bolton was unable to interview Wescovich. Bolton testified that he arrested Wescovich “[biased on the fact that it was the same morning of the burglary and they were still riding around with the stolen property in their vehicle, when they were both confronted by the victim ... [and] they both fled on foot.” (R. 9.) Bolton stated that he “felt confidant that [ ] Wescovich was aware the property was stolen” and that the property was valued at approximately $600. (R.9.)

Following the revocation hearing, the circuit court entered an order on June 5, 2013, revoking Wescovich’s probation. In its order, the circuit court found that Wes-covich had “violated [his] probation by picking up a new charge, failing] to report, and fail[ing] to fulfill financial obligation[s].” (C. 5.) This appeal followed.

On August 16, 2013, this Court, by order, remanded the case to the circuit court for that court to enter an order stating the evidence it had relied upon to revoke Wes-covich’s probation. The circuit court complied with our instructions, and on August 22, 2013, entered an order stating, in pertinent part, that “testimony was taken from the detective that the defendant has been charged with a new offense of Receiving Stolen Property Second Degree. The Court further takes judicial notice that the defendant at his preliminary hearing for said Receiving Stolen Property Second Degree waived to the grand jury.” (Record on Return to Remand, C. 23.)

Wescovich contends on appeal that the circuit court erroneously revoked his probation based solely on hearsay that he had committed a new offense and because he had waived a preliminary hearing.

“It is well settled that hearsay evidence may not form the sole basis for revoking an individual’s probation. See Clayton v. State, 669 So.2d 220, 222 (Ala.Cr.App.1995); Chasteen v. State, 652 So.2d 319, 320 (Ala.Cr.App.1994); and Mallette v. State, 572 So.2d 1316, 1317 (Ala.Cr.App.1990). ‘The use of hearsay as the sole means of proving a violation of a condition of probation denies a probationer the right to confront and to cross-examine the persons originating the information that forms the basis of the revocation.’ Clayton, 669 So.2d at 222.”

Goodgain v. State, 755 So.2d 591, 592 (Ala.Crim.App.1999).

In Goodgain, the defendant appealed the revocation of his probation on the basis that the revocation was based solely on hearsay indicating that he had committed a new offense. The State presented the testimony of one witness — a detective with the Birmingham Police Department — who testified that he had received an offense report regarding a robbery prepared by an unidentified officer. The detective testified that the report indicated that the victim had identified Goodgain as one of the men who had robbed her. The detective further testified that he conducted a live lineup and that the victim identified Good-gain as one of the perpetrators of the crime. The detective testified that the victim’s daughter, who was also present during the robbery, identified Goodgain in a photographic lineup. This Court reversed the trial court’s order revoking Goodgain’s probation and held that the detective’s hearsay testimony alone could not support a finding that Goodgain had committed a new offense. Goodgain, 755 So.2d at 593. In so holding, this Court stated:

“While it is not necessary that a probationer be convicted of the charged offense before his probation is revoked, it is nevertheless true that the filing of charges or an arrest, standing alone, is insufficient ground for probation revocation. Nicholson v. State, 440 So.2d 1205 (Ala.Crim.App.1983); Free v. State, 392 So.2d 857 (Ala.Crim.App.1980), writ denied, Ex parte Free, 392 So.2d 859, cert. denied, 451 U.S. 990, 101 S.Ct. 2329, 68 L.Ed.2d 850, rehearing denied, 452 U.S. 973 101 S.Ct. 3129, 69 L.Ed.2d 985 (1981).
“As this court has said:
“ ‘If merely being arrested is sufficient for revocation, then revocation would lie within the discretion of police officers, rather than judicial officers. In such a case, judges would only perform the ministerial duty of determining if an arrest had been made and then signing the revocation order. The decision to revoke probation is a judicial function and should be based upon the appellant’s conduct and not upon an accusation only. The State must submit enough substantive evidence to reasonably satisfy the trier of the facts that a condition of probation was breached.’ Hill [v. State, 350 So.2d 716 (Ala.Cr.App.1977) ].
“After carefully examining the evidence presented at appellant’s hearing, we must conclude that it was insufficient to support the decision to revoke his probation.”

Goodgain, 755 So.2d at 592-93 (quoting Mitchell v. State, 462 So.2d 740, 742 (Ala.Crim.App.1984)).

In the instant case, as in Good-gain, the State presented only hearsay evidence to support a finding that the probationer had violated the terms and conditions of his probation by committing a new offense. The State did not present a witness with personal knowledge of the charged offense who could identify Wesco-vich or testify that he was in possession of the stolen property. Although the circuit court took judicial notice of Wescovich’s waiver of a preliminary hearing, the finding that Wescovich waived a preliminary hearing did not overcome the fact that the circuit court based its revocation solely on hearsay. See, e.g. Vaughn v. State, 37 So.3d 183 (Ala.Crim.App.2009) (holding that fact that charges have been filed against probationer does not overcome fact that trial court based revocation order solely on hearsay); Sturdivant v. State, 24 So.3d 1173 (Ala.Crim.App.2009) (same).

Because the State did not present sufficient non-hearsay evidence indicating that Wescovich had committed a new criminal offense, the circuit court erred in revoking Wescovich’s probation. Accordingly, we reverse the circuit court’s order revoking Wescovich’s probation and remand this case to the circuit court for further proceedings consistent with this opinion,

REVERSED AND REMANDED.

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

       Note from the reporter of decisions: On August 13, 2013, the Court of Criminal Appeals issued an order remanding this case to the trial court, with instructions. On August 23, 2013, the trial court filed a return to the Court of Criminal Appeals’ remand order. This opinion followed.

      . It is unclear from the record how much of the court-ordered money was designated for the crime victims compensation fund and how much was designated for court costs.


author: WELCH, Judge.

text:
    W.C.M. v. STATE of Alabama.
    CR-12-1202.
    Court of Criminal Appeals of Alabama.
    Nov. 8, 2013.

      Allen K. Mitchell, Dothan, for appellant.
    Luther Strange, atty. gen., and Yvonne A.H. Saxon, asst. atty. gen., for appellee.
   WELCH, Judge.

On March 25, 2013, the Juvenile Court of Houston County held a delinquency hearing in the matter of W.C.M. After an ore tenus hearing, W.C.M. was adjudicated a delinquent child for the offense of first-degree criminal mischief. The juvenile court sentenced W.C.M. to probation in his parents’ custody and ordered him to pay the victim $2,822.94 in restitution.

Facts

H.R., W.C.M., G.T., J.A.1 and J.A.2, T.G., and B.M. are teenage boys who, except for the victim, H.R., live in the same neighborhood. (R. 113.) They are friends who attend school and church together. (R. 29.) On July 12, 2012, this group of friends was hanging out together. The victim, H.R., had a black 2003 Hyundai Tiburón automobile parked at the curb. (R. 13, 83.) The boys made milkshakes at two of their homes, then decided to go ride the “Mule,” a multi-passenger ATV owned by B.M. (R. 66, 70.) Some of the boys walked over to B.M.’s house, but H.R. drove his car over. (R. 13.) Only five of the boys could fit in the Mule, so W.C.M. stayed behind and got in H.R.’s ear. (R. 13.) H.R. told W.C.M. not sit in the car because he did not want him in the car with a milkshake. (R. 13.) W.C.M. complied, but as the boys drove off in the Mule, H.R. saw W.C.M. standing by the front passenger side of his car. H.R. testified that as the Mule got about 50 yards away, he watched W.C.M. “flop” on the hood of H.R.’s car. (R. 13, 20.) H.R. saw W.C.M. do it only once. (R. 21.) H.R. stated what he meant by “flop” was that W.C.M. stood by the right front wheel well and jumped up on the hood. (R. 20.) When the boys returned on the mule 10-15 minutes later, H.R. saw three small dents on the hood, and a large dent on the roof above the passenger door. (R. 16.) H.R. testified that those dents were not there before he left on the Mule, but he did not see W.C.M. jump onto the roof. (R. 18, 21.)

H.R. testified that he did not think W.C.M. was angry when he told him to get out of his car, nor was there an argument, although H.R. admitted that he was “kind of firm and assertive.” (R. 36.) H.R. got an estimate of $2,800 to repair the damage. (R. 22.) H.R. did not know how the roof got damaged, because he saw W.C.M. “flop” onto the hood only once before the Mule was out of visual range. (R. 25, 26.) H.R. stated: “I think, if anything, it would have been more of an accident. But I don’t think he would purposely just damage my car.” (R. 31.) When H.R. returned and saw all the damage, he “blew up” at W.C.M., but later told him he was sorry he did that. (R. 30.)

State’s witnesses, J.A.1, J.A.2, and B.M., and one of W.C.M.’s witnesses, T.G., all confirmed that the car was not damaged when they left on the Mule, but was damaged when they got back about 10 minutes later. J.A.1 stated: “Before we left to ride the Mule, there was, I don’t really remember all the details of it, but [H.R.] told [W.C.M.] to get out of his car, and then they were arguing about who was going to ride because there was only one seat left on the Mule.” (R. 44.) J.A.1 stated that after W.C.M. jumped on the hood, “He was sitting on it to the point that his feet were off the ground, like pretty far back on it. But I didn’t see him like stand up on the hood. But I just saw him sit on it.” (R. 43.) He said that he did not think W.C.M.’s jump onto the hood would damage the car. (R. 48.) J.A.1 stated he told W.C.M.’s father that he saw no damage to the roof that W.C.M. had done. (R. 45.) J.A.1 testified that W.C.M. had gone home (he lived just across the street) before they all returned but that he came back from his house when H.R. telephoned him. (R. 48, 49.)

J.A.2 testified that W.C.M. put his milkshake on J.A.l’s car before going over to H.R.’s car and “flopping” on it. (R. 54.) He explained that “flopping” meant, “like kind of hopped up and sat on the hood.” (R. 58.) When the boys returned, the milkshake was still on the roof of J.A.l’s ear. (R. 61.) He stated there were no dents in H.R.’s car when they left but that there were dents when the boys returned. (R. 55.) B.M. confirmed that H.R.’s car was undamaged when the boys left on the Mule but that the damage was “very noticeable” when they returned. (R. 66-69.) He also stated that he didn’t think W.C.M. meant to do it on purpose. B.M., the owner of the Mule, confirmed what the other State’s witnesses had to say, including that he thought the damage was not intentional. (R. 75, 77.) H.R.’s stepfather, Charles Wynkoop, testified that the damage was not there before this incident or H.R. would have noticed and told him. According to Wynkoop, H.R. washes the car each weekend so he definitely would have noticed. (R. 82.) Wynkoop took pictures of the damage, and the photographs were admitted into evidence. (R. 81, 18.)

At the close of the State’s evidence, W.C.M. made a motion to dismiss for the State’s failure to prove that he had the intent to cause damage to the vehicle. The juvenile court denied the motion, and stated:

“I’ll take into consideration the testimony from the witnesses that the damage was accidental. They did all testify to that. I guess ultimately that’s my decision I have to make based on all of the evidence. But I’ll deny the motion at this time. There is circumstantial evidence from which I can conclude that the damage[ ] [was] caused by [W.C.M.]. In other words, the State has at least made out a prima facie case as to that.”

(R. 86.)

T.G. testified on W.C.M.’s behalf. He said H.R. was yelling at W.C.M. when H.R. told him to get out of the car. (R. 100.) T.G. did not see W.C.M. jump on the car, only lean on it, but that may have been because of where he was sitting in the Mule. (R. 101.)

W.C.M. testified he got in H.R.’s car because he did not know how long his friends would be gone on the Mule. (R. 114.) He testified that he left the area as soon as the Mule was out of sight. (R. 115.) W.C.M. said that, when H.R. told him to get out of the car, he was not mean about it. W.C.M. also denied being angry at being told to get out of H.R.’s car. (R. 115.) W.C.M. denied sitting on the hood of H.R.’s car and said he only leaned on the fender. He denied doing any damage to the car. He said that, after the other boys left on the Mule, he walked over to see Mr. Carroll, an elderly neighbor, but Mr. Carroll was in the shower so W.C.M. went home. A few minutes later he got a telephone call to come back to H.R.’s car. (R. 115.) H.R. started “cursing [W.C.M.] like a dog” about the damage. (R. 117.) W.C.M. testified he did not notice whether there were any dents in the hood while he was leaning on it. W.C.M. also testified that his other friends “sit on the hood, too” and that some them had been doing so earlier that day. (R. 116,117.)

W.C.M. did not make a motion for a judgment of acquittal at the close of all the evidence. (R. 138.) However, he filed a posttrial motion seeking to have the judgment set aside on the ground that the evidence did not support a finding that he acted with criminal intent.

Analysis

On appeal, W.C.M. contends that the trial court erred in denying his motion for a judgment of acquittal because the State did not prove intent, an essential element of fírst-degree criminal mischief. We agree.

“The test used to determine the sufficiency of the evidence is whether the jury might reasonably find that the evidence excluded every reasonable hypothesis except that of guilt.” Eady v. State, 495 So.2d 1161, 1164 (Ala.Crim.App.1986), citing Cumbo v. State, 368 So.2d 871, 875 (Ala.Crim.App.1978). “ ‘The trial court’s denial of a motion for a judgment of acquittal must be reviewed by determining whether there existed legal evidence before the [finder of fact], at the time the motion was made, from which the [finder of fact] by fair inference could have found the appellant guilty.’ ” Breckenridge v. State, 628 So.2d 1012, 1018 (Ala.Crim.App.1993), quoting Thomas v. State, 363 So.2d 1020 (Ala.Crim.App.1978).

“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 [trier of fact].” Ex parte Bankston, 358 So.2d 1040, 1042 (Ala.1978).

“ ‘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).

Criminal mischief, in the first degree, is defined, in relevant part, as follows:

“(a) A person commits the crime of criminal mischief in the first degree if, with intent to damage property, and having no right to do so or any reasonable ground to believe that he or she has such a right, he or she inflicts damages to property:
(1) In an amount exceeding two thousand five hundred dollars ($2,500).... ”

§ 13A-7-21, Ala.Code 1975 (emphasis added).

W.C.M. argues on appeal that there was no showing that he intended to damage H.R.’s car. Specifically, he argues that all the witnesses testified that there was no animosity between him and H.R., and that any damage he caused to the hood was accidental.

“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.’ ” ’ ” Brown v. State, 11 So.3d 866, 914 (Ala.Crim.App.2007), quoting Ex parte C.G., 841 So.2d 292, 301 (Ala.2002), quoting, in turn, Pumphrey v. State, 156 Ala. 103,106, 47 So. 156, 157 (1908).

Intent is clearly a question for the finder of fact. The question before the juvenile court was whether W.C.M. intended to damage H.R.’s car. The State’s witnesses testified that they believed W.C.M. had no intent to damage the car.

In Nguyen v. State, 580 So.2d 122 (Ala.Crim.App.1991), a circumstantial-evidence case, this Court held that evidence showing a possibility that the appellant had committed the offense was not sufficient because “ ‘the possibility that a thing may occur is not alone evidence even circumstantially, that the thing did occur.’ ” 580 So.2d at 123, quoting Parker v. State, 280 Ala. 685, 691, 198 So.2d 261, 268 (1967). As the Alabama Supreme Court in Parker further stated:

“The only inference raised by the state’s evidence presented in this case is that it was possible that this appellant may have committed this offense. Beyond this possibility, resort must be had to surmise, speculation, and suspicion to establish the appellant’s criminal agency in the offense charged. No rule is more fundamental or better settled than that convictions cannot be predicated on such bases....
“If the evidence in a criminal case raises a mere suspicion, or, admitting all it tends to prove, a defendant’s guilt is left in uncertainty, or dependent upon conjecture or probability, the court should instruct the jury to acquit, for such evidence does not overcome, prima facie, the presumption of innocence with which every accused is charitably clothed under our system of jurisprudence.”

Parker v. State, 280 Ala. at 691, 198 So.2d at 268.

The State’s own witnesses testified that W.C.M. did not have the intent to damage the vehicle when he “flopped” on the hood. They further testified that there had been no argument or hard feelings among the boys that might have provided a motive for W.C.M. to deliberately cause damage to the vehicle. Moreover, in denying the motion for a judgment of acquittal, the court did not find that the State had established the element of intent; rather, the court stated only that it found that W.C.M. had caused the damage. Causing the damage was only one portion of the prima facie case. In order to prove a prima facie case, the State also had to prove that W.C.M. acted with the intent to cause damage to the property. Not only did the State fail to present any evidence indicating that W.C.M. had any intent to damage the property, the State presented significant evidence to the contrary. There being no prima facie case, the trial court should have granted W.C.M.’s motion for a judgment of acquittal.

We find support for our position in Ex parte G.G., 601 So.2d 890 (Ala.1992). In that case, the Alabama Supreme Court considered a criminal-mischief case in which a juvenile was adjudicated delinquent based on his alleged presence while others vandalized a lounge in a hotel. This Court had affirmed the juvenile court’s denial of G.G.’s motion for a judgment of acquittal, and the Alabama Supreme Court reversed. The Alabama Supreme Court held that the juvenile court had erred by not granting G.G.’s motion for a judgment of acquittal because the State had failed to prove that G.G. had damaged hotel property or that he acted with the intent to damage the hotel property.

“The State’s evidence that G.G. might have been involved in the vandalism was circumstantial, and we conclude that the State’s evidence was not sufficient to prove beyond a reasonable doubt the elements of the charge against G.G. ‘[Cjircumstantial evidence justifies a conviction only when it is inconsistent with any reasonable theory of innocence.’ Cumbo v. State, 368 So.2d 871, 875 (Ala.Crim.App.1978).
“Here, the State proved only that G.G. dropped some candy wrappers on the floor of the lounge. Admittedly, the dropping of the wrappers on the floor of the lounge did not cause any damage. Although G.G. admitted being in the lounge at one time, the State submitted no evidence that G.G. was in the lounge at the time of the vandalism.
“Based on the foregoing, we hold that the trial court erred by not granting G.G.’s motion for a judgment of acquittal made after the close of the State’s case. The Court of Criminal Appeals’ judgment affirming the adjudication of delinquency is, therefore, reversed, and the cause is remanded with instructions for that court to reverse the judgment of the trial court and to enter a judgment for the juvenile.”

Ex parte G.G., 601 So.2d at 893.

As did the Alabama Supreme Court in Ex parte G.G., we are compelled to hold that the juvenile court erred when it denied W.C.Mfs motion for a judgment of acquittal. Although the State presented evidence that W.C.M. damaged H.R.’s vehicle when he “flopped” onto it, it failed to present any evidence to indicate that W.C.M. acted with the intent to damage the vehicle when he did so. Instead, all the evidence it presented indicated that W.C.M. did not act with the intent to damage the vehicle. Thus, the State’s evidence was not sufficient to prove beyond a reasonable doubt the elements of criminal mischief against W.C.M.

Because the State failed to prove the element of intent, the juvenile court erred when it denied W.C.M.’s motion for a judgment of acquittal. We reverse the judgment of the juvenile court and render a judgment in favor of W.C.M.

REVERSED AND JUDGMENT RENDERED.

KELLUM, BURKE, and JOINER, JJ., concur. WINDOM, P.J., dissents, without opinion.

      . Two brothers with the same initials, J.A., testified. For the sake of clarity, the brothers will be designated "J.A.1" and "J.A.2.”