author: FAIR, J.,

text:
    Desmon Ray LEE a/k/a Desmon R. Lee a/k/a Desmon Lee, Appellant v. STATE of Mississippi, Appellee
    NO. 2015-KA-01413-COA
    Court of Appeals of Mississippi.
    01/03/2017
    Rehearing Denied May 2, 2017
    ATTORNEY FOR APPELLANT: OFFICE OF STATE PUBLIC DEFENDER BY: JUSTIN TAYLOR COOK
    ATTORNEY FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL BY: ALICIA MARIE AINSWORTH
    BEFORE IRVING, P.J., FAIR AND WILSON, JJ.
   FAIR, J.,

FOR THE COURT:

¶ 1. On the evening of December 5,2011, a masked man entered the Little Caesar’s Pizza in Southaven and pointed a handgun at Billy Royal, who was working behind the counter at the time. The stickup man demanded money. For approximately fifteen minutes, Royal argued with the man and refused to surrender the loot. Other employees called the police, and the robber fled the scene as they approached. The first arriving officers spoke to Royal and radioed out a brief description of the robber and the direction he had fled.

¶ 2. One officer went to the nearby Super 8 Motel, where the manager informed him that a man had just thrown something in the trash can and gone out the back door. The manager said the person was still standing outside behind the building. Another officer arrived and confronted the man, who turned out to be Desmon Lee. Lee admitted he had a weapon, and he was taken into custody. He was read his rights and transported about 400 yards to Little Caesar’s, where Royal identified Lee as the masked man who had attempted to rob him a short time earlier. He also identified the weapon taken from Lee as the one used in the robbery. Officers recovered a black and red sweatshirt from a garbage can in the motel lobby, and Lee later confessed that he had tried to rob the restaurant.

¶ 3. Because of this “show up” identification, Lee moved prior to trial to suppress Royal’s identification of him as the perpetrator. At the suppression hearing, Royal testified that he and Lee had actually worked together at Little Caesar’s about two years before the robbery, and that he had thought the robber’s voice sounded familiar. Royal was “one hundred percent certain” Lee was the robber. The trial court denied the motion to suppress, and Lee was convicted.

¶ 4. On appeal, Lee argues that the trial court abused its discretion in denying his motion to suppress the identification.

DISCUSSION

¶ 5. “The practice of showing suspects singly to persons for the purpose of identification, and not as part of a lineup, has been widely condemned.” Stovall v. Denno, 388 U.S. 293, 302, 87 S.Ct. 1967, 18 L.Ed.2d 1199 (1967), abrogated in part by Griffith v. Kentucky, 479 U.S. 314, 328, 107 S.Ct. 708, 93 L.Ed.2d 649 (1987); see also York v. State, 413 So.2d 1372, 1381 (Miss. 1982). Nonetheless, “[s]uch identification is admissible if, considering the totality of the circumstances surrounding the identification procedure, the identification did not give rise to a very substantial likelihood of misidentification.” Roche v. State, 913 So.2d 306, 311 (¶ 14) (Miss. 2005) (citing York, 413 So.2d at 1383).

¶ 6. The central question is “whether under the totality of the circumstances the identification was reliable even [though] the confrontation was suggestive.” Outerbridge v. State, 947 So.2d 279, 282 (¶ 9) (Miss. 2006) (quoting Neil v. Biggers, 409 U.S. 188, 199, 93 S.Ct. 375, 34 L.Ed.2d 401 (1972)). To evaluate the likelihood of misidentification, the trial court must consider the Biggers factors: “the opportunity of the witness to view the criminal at the time of the crime, the witness’ degree of attention, the accuracy of the witness’ prior description of the criminal, the level of certainty demonstrated by the witness at the confrontation, and the length of time between the crime and the confrontation.” Id, (quoting Biggers, 409 U.S, at 199, 93 S.Ct. 375).

¶ 7. The trial court in today’s case held a hearing and produced an explicit, written analysis of the Biggers factors. It found (in relevant part):

Royal testified as to a lengthy encounter that included close proximity viewing. The encounter lasted for a substantive amount of time with no concerns expressed over conditions such as lighting.
Royal had adequate opportunity to pay clear attention to the robber .including his appearance and voice. Therefore, Royal testified as to an adequate opportunity to view the assailant while exercising a high degree of attention.
The description given by Royal[] was highly accurate. Although the robber wore a mask, Royal was able to give an accurate description of the clothes being worn by the assailant and physical characteristics of the perpetrator as well as other identifying information. It was ultimately determined that Royal knew Lee from previously working together at the business. During cross examination, Royal admitted that Lee was taller than the description he gave[,] but no evidence was presented as' to Lee’s actual height. Further, Royal was shown a report of a police officer that stated Royal had given a different description of the clothing to the officer. However, Royal denied making the statement and no further evidence was presented on the subject.
Royal expressed certainty in his description and the length of time between the crime .and the confrontation was short. Additionally, upon viewing Lee, Royal recalled that to be the reason he recognized the voice of the perpetrator. He had previously worked with Lee.
The facts in the case are substantially similar to those set forth in Outerbridge v. State, 947 So.2d 279 (Miss. 2006). Such showups have also been upheld in similar circumstances in [further citations omitted].
As in Outerbridge, this Court finds beyond a reasonable doubt from a totality of the circumstances that the factual evidence presented in this case does overcome the likelihood of any misidenti-fication of the defendant .... [A]ny alleged discrepancies are grounds for cross-examination.

II8. Appellate courts review a trial court’s decision to admit or exclude evidence for an abuse of discretion. Roberson v. State, 199 So.3d 660, 668 (¶ 32) (Miss. 2016). More specifically, when the admission of a show-up identification is challenged on appeal, we ask “whether or not substantial credible evidence supports the trial court’s findings that, considering the totality of the circumstances, in-court identification testimony was not impermissibly tainted.” Roche, 913 So.2d at 310 (¶ 11) (citation omitted).

¶9, Lee contends on appeal that the trial court erred in its analysis because of the rather limited description of the perpetrator initially given by Royal to the police, particularly that Royal had not stated that he recognized the robber’s voice or that the robber had “distinctive” facial features perceptible through the mask, as he testified at trial. While the accuracy of the initial description is one factor to be considered under Biggers, Lee argues omissions rather than inaccuracies, and the details might have been omitted for the practical reason that they would have been difficult to articulate and of limited use to police in a hot pursuit. Certainly, Lee could have, and did, argue that Royal’s limited and imperfect initial description called into question the reliability of his subsequent identification, but we do not find that as a matter of law the trial court was required to find that it gave “rise to a very substantial likelihood of misidentification,” especially in light of the strength of the case for admission under the other Biggers factors. See Roche, 913 So.2d at 311 (¶ 14).

¶ 10. After reviewing the record, we find the trial court’s decision to admit the challenged identification testimony into evidence was supported by substantial credible evidence and did not amount to an abuse of discretion. We therefore affirm Lee’s convictions and sentences.

¶ 11. THE JUDGMENT OF THE CIRCUIT COURT OF DESOTO COUNTY OF CONVICTION OF COUNT I, ATTEMPTED ARMED ROBBERY, AND SENTENCE OF FIFTEEN YEARS; AND COUNT II, POSSESSION OF A FIREARM BY A CONVICTED FELON, AND SENTENCE OF TEN YEARS, TO RUN CONSECUTIVELY TO THE SENTENCE IN COUNT I, ALL IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS, IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO DESOTO COUNTY.

LEE, C.J., IRVING AND GRIFFIS, P.JJ., BARNES, ISHEE, CARLTON, WILSON AND GREENLEE, JJ., CONCUR.

WESTBROOKS, J., NOT PARTICIPATING.

      . At one point, Royal testified, they were interrupted by a customer who came into the restaurant. Royal served the customer while the robber held him at gunpoint from a place where the customer could not see him.


source: Caselaw Access Project

author: GREENLEE, J.,

license: Public Domain

text:
    Thalmus WILLIAMS a/k/a Thumbstack, Appellant, v. STATE of Mississippi, Appellee.
    NO. 2015-KA-01393-COA
    Court of Appeals of Mississippi.
    1/10/2017
    Rehearing Denied May 9, 2017

      ATTORNEYS FOR APPELLANT: OFFICE OF STATE PUBLIC DEFENDER, BY: W. DANIEL HINCHCLIFF, GEORGE T. HOLMES
    ATTORNEYS FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL, BY: BILLY L. GORE, JASON L. DAVIS
   GREENLEE, J.,

FOR THE COURT:

¶1. Thalmus Williams was convicted of fondling (Count II), attempted sexual battery by an authority figure (Count III), and sexual battery by an authority figure (Count IV). He was sentenced as a habitual offender to fifteen years for Count II, thirty years for Count III, and thirty years for Count IV. The thirty year sentences for Counts III and IV were to be served concurrent to each other but consecutively to the fifteen year sentence for Count II. He does not appeal the conviction or fifteen-year sentence for fondling. On appeal, Williams argues that the evidence was insufficient to support the conviction for attempted sexual battery by anal penetration (Count III). He also argues that the indictment on Count IV was impermis-sibly changed by the jury instructions to charge a separate crime, requiring reversal of the conviction on that count. We agree—and ■ the State essentially concedes—that the evidence was insufficient to support the conviction for attempted sexual battery under Count III. However we find that the discrepancy between Count IV and the jury instructions did not impermissibly amend the indictment and did not prejudice the defense. We therefore reverse and render on Count III, and affirm on Count IV.

FACTS AND PROCEEDINGS BELOW

¶2. The victim, V.W., is Williams’s biological daughter and was ten years old at the time of the sexual contact. The incident occurred at the home of Williams’s mother, Shirley Austin, where V.W. frequently visited. V.W. told her sister, K.W., about the inappropriate contact, who told their mother, who reported it to the police. The investigating officer arranged for a forensic interview at Family Crisis Services in Oxford, Mississippi, which was conducted by Meredith Rawl. V.W. did not receive a medical examination.

¶3. Prior to trial, the court conducted a “tender-years exception” hearing. See M.R.E. 803(25). The court found that V.W. had no reason to lie and understood lying was bad, that her statements were spontaneous, that she exhibited maturity, and that there was no evidence of improper or suggestive techniques being employed in her statement. As a result, the court permitted the hearsay testimony of V.W.’s sister and mother about what V.W. had told them. The forensic interviewer, Rawl, was also permitted to testify concerning V.W.’s statements to her. Rawl was accepted as an expert.

¶4, V.W.’s sister, K.W., testified that V.W. told her on the phone: “She told me that her father had tried to rape her, and she said that he showed her his privacy and tongue-kissed her.” Rawl, the forensic interviewer, testified that, during the forensic interview, V.M. stated that her father showed her his penis and asked her to touch it, which she refused. Rawl further testified that

[V.W.] reported that her father kissed her—put his tongue in her mouth, and that her father put his hands on her vaginal area.... She reported that her father asked to lick her vaginal area and started trying to pull her pants down. She disclosed that he did lick her vaginal area. She reported that his hand rubbed on her vaginal area and inside her vagina—which she reported, “hurt.”
She stated that her vagina hurt and [her] father started rubbing on her buttocks. She said that, that felt moist.

¶5. Rawl’s expert opinion was that her findings were consistent with the conclusion that the child had been sexually abused. She stated:

Based on the fact that she stated that her father showed her his penis. That his penis touched her buttocks. That he showed himself—touching his penis on her. Based on the fact he put his tongue in her mouth, and his tongue touched her vaginal area, as well as her buttocks. Based on that—based on the information that she was able to provide, my findings were consistent with that; that the child had been sexually abused.

¶6. The victim, V.W., who was thirteen at the time of the trial, testified that the sexual contact started after her father told her that he was going to braid her hair. She testified that he took her clothes off and that he put his mouth toward her private area. When asked “at any point, did his finger, or tongue, enter your body?” she replied “yes” and confirmed that the contact was “where you would pee out of.” She was asked to confirm whether the statements she had made to the forensic interviewer were accurate: “ ‘[I]t was hurting, and so he started rubbing on your [sic] butt’; is that correct? That, ‘it was moist’; is that what you told [the forensic interviewer]?” To which V.W. responded “yes.”

¶7. Williams’s defense was that no sexual contact occurred. He testified on his own behalf. His brother testified on his behalf, asserting that he had also been at their mother’s house that evening and that he did not see any inappropriate behavior. Williams’s mother, Austin, also testified that she did not see anything inappropriate happen.

¶8. The jury heard testimony that V.W. wrote a letter to her father stating: “Daddy I am sorry always have fellings like stuff happen I’m sorry for lying on you I know I know I was wrong for lying for you physical messing with me sorry very sorry.” V.W. testified that she wrote it “because my grandma said if I didn’t write it my mama and my daddy would go to jail and if I told anybody that I write it she wasn’t going to get me nothing for Christmas.” After V.W. wrote the letter, Austin took her to a notary to have it signed. The letter was admitted into evidence.

¶9. Austin was indicted on one count of tampering with a witness. That charge was severed prior to trial. The indictment charging Williams and Austin lists in the heading, before the paragraphs enumerating each count, the title and relevant section number of each charge:

ATTEMPT MCA Section 97-1-7
ATTEMPTED FONDLING MCA Section 97-5-23
FONDLING MCA Section 97-5-23
ATTEMPTED SEXUAL BATTERY BY AUTHORITY FIGURE MCA Section 97-3-95(2)
SEXUAL BATTERY BY AUTHORITY FIGURE MCA Section 97-3-95(2)
WITNESS TAMPERING MCA Section 97-9-115 (l)(b)
HABITUAL OFFENDER MCA Section 99-19-1983 [sic] & 99-19-1981[sic]

Count III of the indictment states in relevant part:

That THALMUS WILLIAMS .... did unlawfully, wilfully and feloniously, attempt to engage in sexual penetration with V.W., a female child under the age of eighteen (18) years old, by attempting to penetrate her anal area with his penis....

(Emphasis added).

¶10. Count IV of the indictment states in relevant part:

That Thalmus Williams .... did unlawfully, wilfully and feloniously, attempt to engage in sexual penetration with V.W., a female child under the age of eighteen (18) years, by inserting his tongue, mouth and/or hand into the vaginal area. . ..

(Emphasis added).

¶11. On Count IV, the jury was instructed on the completed crime of sexual battery. The transcript reflects a discussion at the time the jury instructions were prepared for the court, acknowledging the removal of the attempt language from Count IV.

1112. Williams appeals his convictions and thirty-year concurrent sentences for attempted sexual battery and sexual battery. He does not appeal the conviction or fifteen-year sentence for fondling.

DISCUSSION

I. The evidence was insufficient to sustain a verdict for attempted sexual battery by anal penetration.

¶13. Williams argues that the evidence presented was insufficient to sustain a verdict for attempted penetration of the anal area. The State concedes that the evidence against Williams for this charge is “tenuous” and that his argument on appeal “possibly” has merit. When evaluating the sufficiency of the evidence, “the relevant question is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” Bush v. State, 895 So.2d 836, 843 (¶ 16) (Miss. 2005).

¶14. Mississippi Code Annotated section 97-3-95(2) (Rev. 2014) provides that “[a] person is guilty of sexual battery if he or she engages in sexual penetration with a child under the age of eighteen (18) years if the person is in a position of trust or authority over the child including without limitation the child’s ... parent .... ” Mississippi Code Annotated section 97-1-7(1) (Rev. 2014) provides that a person who attempts to commit a crime but fails or is prevented “shall, where no other specific provision is made by law for the punishment of the attempt, be punished by imprisonment and fine for a period and for an amount not greater than is prescribed for the actual commission of the offense so attempted.”

¶15. Anal penetration means penetration of the anal cavity or anal opening. Ringer v. State, 203 So,3d 794, 797 (¶ 9) (Miss. Ct. App. 2016). In Ringer, this Court recently found insufficient evidence to support the charge of sexual battery by anal penetration where the evidence indicated that the penis was placed between the victim’s butt cheeks but was ambiguous as to whether actual penetration of the anal opening occurred. Id. at (¶ 10).

¶16. Here, the evidence indicated that the victim’s buttocks were touched. While the forensic interviewer understood the touching to have occurred with Williams’s penis, the reported statements of V.W. are ambiguous as to whether the touching occurred with a hand or with a penis. The forensic interviewer, Rawl, testified that V.W. told her that, after Williams touched the inside of her vagina with his hands, which hurt, her “father started rubbing on her buttocks. She said that, that felt moist.” That statement is the extent of the evidence presented to support attempted anal penetration. None of the testimony clearly refers to the anal opening or clearly indicates that the touching constituted penetration of the anal cavity. We agree with Williams that the evidence does not suggest attempted anal penetration to the extent that a reasonable juror could find it proven beyond a reasonable doubt. We therefore find it necessary to reverse and render Williams’s conviction as to Count III.

II. The jury instructions did not charge a separate offense from the indictment on Count IV.

¶17. Williams argues that Count IV of the indictment charged him with attempted sexual battery, not the complete crime of sexual battery, and that the jury instructions enumerating the elements of sexual battery amended the indictment to impermissibly charge a separate crime from that he was indicted for. The State argues that the indictment actually charged the completed act of sexual battery and that the “attempted to” language found in the indictment (but removed from the jury instructions) can be read as sur-plusage.

¶18. Criminal defendants have a constitutional right to be informed of the nature and cause of the charges brought against them. U.S. Const, amends. IV & XIV; Miss. Const, art. 3, § 26. See also Lee v. State, 944 So.2d 35, 38 (¶ 7) (Miss. 2006). A challenge to the sufficiency of the indictment can be made for the first time on appeal. Williams v. State, 169 So.3d 932, 935 (¶ 8) (Miss. Ct. App. 2014). Substantive amendments to an indictment must be made by a grand jury. Eakes v. State, 665 So.2d 852,859 (Miss. 1995). An amendment is substantive if it either “materially alters facts which are the essence of the offense on the face of the indictment as it originally stood” or “materially alters a defense to the indictment as it originally stood so as to prejudice the defendant’s case.” Jamison v. State, 73 So.3d 567, 571 (¶ 11) (Miss. Ct. App. 2011) (quoting Spears v. State, 942 So.2d 772, 774 (¶6) (Miss. 2006)). Where a discrepancy exists between the indictment and the jury instructions, “[a]s long as the change does not ‘materially alter facts which are the essence of the offense on the face of the indictment as it originally stood or materially alter a defense to the indictment as it originally stood’ in a way that would prejudice the defendant’s case, then the amendment is permissible.” Graham v. State, 185 So.3d 992, 1002-03 (¶ 25) (Miss. 2016).

¶19. Mississippi defines sexual penetration to include “any penetration of the genital or anal openings of another person’s body by any part of a person’s body, and insertion of any object into the genital or anal openings of another person’s body.” Miss. Code Ann. § 97-3-97(a) (Rev. 2014). “Penetration is the very essence of the crime of sexual battery.” Jenkins v. State, 101 So.3d 161, 166 (¶14) (Miss. Ct. App. 2012).

¶20. Therefore, for the discrepancy between Williams’s indictment on Count IV and the jury instruction on Count IV to not be substantial, the indictment as originally worded must have factually alleged the completed act of penetration. The heading of the indictment against Williams lists as one of the charges “SEXUAL BATTERY BY AUTHORITY FIGURE MCA Section 97-3-95(2).” See Hines v. State, 472 So.2d 386, 390 (Miss. 1985) (label at the top of indictment listing the charge as “SEXUAL BATTERY MCA 97-3-95(a)” was relevant to the court’s determination that the indictment sufficiently charged the crime). This followed the charge in the heading of “ATTEMPTED SEXUAL BATTERY BY AUTHORITY FIGURE MCA Section 97-3-95(2).” Count III asserted that Williams did “attempt to engage in sexual penetration ... by attempting to penetrate V.W’s anal area with his penis,” whereas Count IV asserted that Williams did “attempt to engage in sexual penetration with V.W., a female child under the age of eighteen (18) years, by inserting his tongue, mouth and/or hand into the vaginal area....”

¶21. We conclude that the language of Count IV factually alleges that penetration of the vaginal area occurred. Therefore, despite the apparent error of including the phrase “attempt to engage” earlier in the sentence, Williams was on notice that he was to defend against the completed act of penetration. This construction is consistent with the heading of the indictment listing the completed crime as the charge, as well as with the distinction between the language of Count III and Count IV. The language removed from the indictment for the purpose of the jury instructions can therefore be construed as surplusage and did not constitute a substantive amendment. The change did not alter the facts that were the essence of the offense.

¶22. While we acknowledge that defects to an indictment can certainly be raised for the first time on appeal, we note that, during the jury-selection process, the judge read each count out to the jury pool, describing for Count IV the elements of the completed crime of sexual battery without objection or allegations of surprise from the defense. The court announced:

Count 4; it’s alleged that Mr. Williams, a/k/a “Thumbstack,” in this County and State on[]or about the 19th of April 2013, within the Jurisdiction of this Court, did unlawfully, willfully, felo-niously, engage in the sexual penetration of V.W., a female child under the age of 18 by inserting his tongue, mouth or hand into the vaginal area, and that, said Thalmus Williams, a/k/a “Thumbstack,” held a position in trust or authority to-wit her father.

At trial, all parties appeared to proceed with the understanding that the indicted charge was the completed crime of sexual battery.

¶23. Further, the amendment did not materially change Williams’s defense. Eakes, 665 So.2d at 859 (¶ 18); Griffin v. State, 584 So.2d 1274, 1276 (Miss. 1991). Williams’s defense was that no attempted or actual sexual contact happened that evening at his mother’s house. This defense was equally available for both the charge of attempted sexual battery and the charge of completed sexual battery. See Graham, 185 So.3d at 1000 (¶ 22).

¶24. While the inclusion of the “attempt” language in Count IV of the indictment was a mistake, as can be seen by- the description of the charge in the heading of the indictment, attempt can be read as surplusage and does not render the indictment fatally defective. Williams has not demonstrated unfair surprise and no objection to the jury instruction covering the completed act was made at trial. This argument is therefore without merit.

CONCLUSION

¶25. The State presented insufficient evidence to support Williams’s conviction for attempted sexual battery by penetration of the anal area. We therefore reverse and render on Count III. We find no error in Williams’s conviction and sentence for sexual battery by penetration of the vaginal area, and therefore affirm his conviction and thirty-year sentence on Count IV.

¶26. THE JUDGMENT OF THE CIRCUIT COURT OF COAHOMA COUNTY OF CONVICTION OF COUNT III, ATTEMPTED SEXUAL BATTERY BY AN AUTHORITY FIGURE, AND SENTENCE AS A HABITUAL OFFENDER OF THIRTY YEARS IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS WITHOUT ELIGIBILITY FOR PAROLE OR PROBATION, IS REVERSED AND RENDERED. THE JUDGMENT OF CONVICTION OF COUNT II, FONDLING, AND COUNT IV, SEXUAL BATTERY BY AN AUTHORITY FIGURE, AND SENTENCE OF FIFTEEN YEARS FOR COUNT II AND THIRTY YEARS FOR COUNT IV, WITH THE SENTENCES TO RUN CONSECUTIVELY IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS WITHOUT ELIGIBILITY FOR PAROLE OR PROBATION, IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO COAHOMA COUNTY.

LEE, C.J., IRVING AND GRIFFIS, P.JJ., BARNES, ISHEE, CARLTON, FAIR, AND WILSON, JJ., CONCUR. WESTBROOKS, J., NOT PARTICIPATING.

      . Count I, attempted fondling, was not presented to the jury.

      . To protect the minor victim’s privacy, we have substituted initials for her name and her sibling's name.

      . Under the general attempt statute, "where no other specific provision is made by law for the punishment of attempt, [the convicted person shall] be punished by imprisonment and fine for a period and for an amount not greater than is prescribed for the actual commission of the offense so attempted.” Miss. Code Ann. § 97-1-7 (Rev. 2014).

      . Williams argues that the indicted charge of attempted sexual battery was deficient for lack of the "failure or prevention” element of the general attempt statute. Our courts have long held that “the failure to charge the third element of attempt does not make an indictment defective.” Spearman v. State, 58 So,3d 30, 36 (¶ 19) (Miss. Ct. App. 2011). "[U]sing the word ‘attempt’ puts a defendant on notice that the State will prove that the crime was not completed.” Neal v. State, 936 So.2d 463, 467 (¶ 13) (Miss. Ct. App. 2006).

      . Attempt is not a statutory element of the crime of sexual battery. Therefore, the instant attempt language is not pennissible under the standard that “[w]here the principal offense by statute is defined to include an attempt, an indictment for the principal offense is in no way defective which employs the word ‘attempt’ ” McCullum v. State, 487 So.2d 1335, 1338 (Miss. 1986).


author: GRIFFIS, P.J.,

text:
    Robert A. MAXWELL a/k/a Robert Maxwell a/k/a Robert Anthony Maxwell, Appellant v. STATE of Mississippi, Appellee
    NO. 2015-KA-01899-COA
    Court of Appeals of Mississippi.
    04/11/2017

      ATTORNEYS FOR APPELLANT: OFFICE OF STATE PUBLIC DEFENDER BY: GEORGE T. HOLMES, ERIN E. PRIDGEN
    ATTORNEYS FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL BY: JOSEPH SCOTT HEMLEBEN, JASON L. DAVIS
    DISTRICT ATTORNEY: DEWITT T. BATES JR.
    BEFORE GRIFFIS, P.J., BARNES AND CARLTON, JJ.
   GRIFFIS, P.J.,

FOR THE COURT:

¶ 1. Robert A. Maxwell is before this Court on a petition for post-conviction collateral relief (PCCR) where he requested and was granted an out-of-time appeal. The circuit court granted the PCCR motion and allowed Maxwell leave to file an out-of-time appeal. We consider his direct appeal and find no reversible error as to his conviction and sentence.

FACTS AND PROCEDURAL’ HISTORY

¶2. Maxwell was indicted in Lincoln County on the charge of capital murder. The indictment was subsequently amended to charge Maxwell with murder.

¶ 3. On October 29, 2008, Maxwell was found guilty of the lesser-included offense of manslaughter. Following his conviction, but before sentencing, the State of Mississippi moved to amend the indictment to charge Maxwell as a habitual offender pursuant to Mississippi Code Annotated section 99-19-81 (Rev. 2015). The circuit court granted the motion and sentenced Maxwell to twenty years in the custody of the Mississippi Department of Corrections, to be served day for day pursuant to section 99-19-81.

¶4. Two years later, on October 19, 2010, Maxwell filed a pro se notice of appeal. The clerk issued a show-cause notice, which required Maxwell to show cause as to why the appeal “should not be dismissed as untimely filed, for failing to comply with the rules of this court.” On November 16, 2010, Maxwell’s appeal was dismissed as untimely, and the mandate was issued December 8, 2010.

¶ 5, On February 25, 2015, Maxwell filed an Application for Leave to Proceed in the Trial Court. Maxwell v. State, 2015-M-00302. Maxwell asked the Mississippi Supreme Court to allow him to proceed under the Mississippi Uniform Post-Conviction Collateral Relief Act (UPCCRA). Miss. Code Ann. §§ 99-39-1 to -29 (Rev. 2015). On April 1,-2015, the supreme-court entered an order that stated: “After due consideration, we find that Maxwell’s application should be dismissed without prejudice to be filed in the trial court.” Maxwell v. State, 2015-M-00302 (citing Martin v. State, 556 So.2d 357, 358-60 (Miss. 1990)). In Martin, the supreme court held:

Under this section [ (99-39-7) ], and [section] 99-39-25, there are only two instances in which this Court can entertain a post-conviction motion. One is where the matter is presented originally to .the trial court and thereafter appealed to this Court pursuant to [section] 99-39-25. The other is where the prisoner is required to first seek leave of this Court to proceed in the lower court. The case at bar does not fit either situation.

As a result, the supreme court dismissed Maxwell’s application without prejudice for it “to be filed in the trial court.” Maxwell v. State, 2015-M-00802.

¶ 6. On October 13, 2015, Maxwell filed his petition for PCCR in the circuit court. On December 16, 2015, the circuit court granted the petition. The circuit court ordered:

THIS CAUSE is before the [circuit] court on a [petition] for [PCCR]. ... Mr. Maxwell petitions the [circuit] court to grant leave to file an out of time appeal. ... [Maxwell] attests that his attorney did not inform him of his right to appeal. The [circuit] court finds that the delay was due to no fault of ... Maxwell, personally, and that he should be, and is hereby[,] granted leave to file an out of time appeal, and that he may do so in forma pauperis.

The effect of the circuit court’s order was to allow Maxwell leave to file an out-of-time appeal.

¶ 7. Maxwell filed a notice of appeal. Maxwell argues the circuit- court erred in allowing the State to amend his indictment after conviction to charge him as a habitual offender.

ANALYSIS

¶ 8. Maxwell asserts his appeal is a “direct appeal” from the circuit court. However, the State asserts Maxwell’s appeal is an out-of-time appeal subject to a procedural bar.

¶ 9. We begin with the State’s argument. “A trial court has the authority to grant a criminal defendant’s motion for an out-of-time appeal if grounds exist and the request is brought under the [UPCCRA].” Dorsey v. State, 986 So.2d 1080, 1083 (¶ 10) (Miss. Ct. App. 2008) (citing Miss. Code Ann. § 99—39—5(l)(i) (Rev. 2015)). However, even a PCCR petition that asks for leave to file an out-of-time appeal must be filed “within three (3) years after the time in which the petitioner’s direct appeal is ruled upon.” Miss. Code Ann. § 99-39-5(2). Here, Maxwell’s direct appeal was dismissed by this Court in November 2010. As a result, Maxwell’s PCCR petition was not timely filed and was subject to the time-bar. The circuit court could have dismissed the petition as procedurally barred. Instead, the circuit court found that grounds existed for an out-of-time appeal and granted Maxwell’s request for an out-of-time appeal pursuant to section 99-39-5(l)(i). Accordingly, Maxwell’s appeal before this Court is an out-of-time appeal, as authorized under the UPCCRA. The State asks that we find Maxwell’s PCCR petition procedurally barred.

¶ 10. There are exceptions to the procedural bar, such as an intervening decision of the Mississippi Supreme Court that would have adversely affected the outcome of the conviction or sentence. Miss. Code Ann. § 99-39-5(2)(a)(i). Here, Maxwell argues that there was an intervening decision that would have adversely affected the outcome of his sentence. He claims that Gowdy v. State, 56 So.3d 540 (Miss. 2010), should be applied retroactively. If Maxwell’s argument is correct, then there would be no procedural bar. As a result, we consider Maxwell’s argument.

¶ 11. Maxwell argues that the jury found him guilty of manslaughter, which carried a maximum penalty of twenty years in prison. Miss. Code Ann. § 97-3-25 (Rev. 2006). The State made a motion to amend the indictment after the jury verdict but before Maxwell was sentenced. The State asked that Maxwell be sentenced as a habitual offender under section 99-19-81. If Maxwell was sentenced under section 99-19-81, he would be required to serve the twenty-year sentence for the conviction, and he would not be eligible for any reduction, suspension, parole, or probation. Maxwell’s counsel did not object. Now, Maxwell argues that this amendment was improper under Gowdy, 56 So.3d at 546 (¶ 22).

¶ 12. In Goiudy, immediately after Gow-dy’s conviction of felony driving under the influence, the State informed the circuit court that it had just received information regarding Gowdy’s prior convictions in Iowa and would seek to amend the indictment to include his habitual-offender status. Id. at 544 (¶ 15). The State further informed the circuit court that it was uncertain whether the amendment would charge Gowdy under section 99-19-81 or Mississippi Code Annotated section 99-19-83 (Rev. 2015). Gowdy, 56 So.3d at 544 (¶ 15). Almost two months later, the State filed its motion to amend the indictment to charge Gowdy as a habitual offender under section 99-19-83. Gowdy, 56 So.3d at 544-45 (¶ 15). Just before sentencing, the circuit court allowed the State to amend the indictment to reflect Gowdy’s habitual-offender status. Id. at 542 (¶ 5). The circuit court adjudicated Gowdy as a habitual offender and sentenced him to life imprisonment without the possibility of parole. Id.

¶ 13. On appeal, the Mississippi Supreme Court interpreted Uniform Rule of Circuit and County Court 7.09, which allows an indictment to be amended to charge the defendant as a habitual offender “only if the defendant is afforded a fair opportunity to present a defense and is not unfairly surprised.” Id. at 545 (¶ 16). The court found that “an amendment to the indictment to allege habitual offender status after conviction is an unfair surprise.” Id. at 545 (¶ 19). The court then vacated Gowdy’s sentence and remanded the case for resen-tencing. Id. at 546 (¶ 24).

¶ 14. Recently, in Carr v. State, 178 So.3d 320, 321 (¶ 6) (Miss. 2015), the court held that “[t]he rule we announced in Gow-dy does not apply retroactively to cases that were final before April 7, 2011, the date the mandate was issued in Gowdy.”

¶ 15. Here, Maxwell’s direct appeal was dismissed and the mandate was issued pri- or to April 7, 2011. Thus, Maxwell’s case was final before Gowdy was decided. Thus, Gowdy does not apply retroactively to Maxwell’s case. As a result, Goiody is neither an intervening decision for purposes of the time-bar exception nor a basis for us to reverse Maxwell’s conviction and sentence on the merits of the direct appeal.

¶ 16. As a result, we find that Maxwell’s conviction and sentence should be affirmed.

¶ 17. THE JUDGMENT OF THE LINCOLN COUNTY CIRCUIT COURT OF CONVICTION OF MANSLAUGHTER AND SENTENCE AS A HABITUAL OFFENDER OF TWENTY YEARS IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS WITHOUT ELIGIBILITY FOR PAROLE OR EARLY RELEASE, AND TO PAY A $10,000 FINE AND FULL RESTITUTION, IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO LINCOLN COUNTY.

LEE, C.J., IRVING, P.J., BARNES, ISHEE, CARLTON, FAIR, WILSON AND GREENLEE, JJ., CONCUR. WESTBROOKS, J., CONCURS IN PART AND DISSENTS IN PART WITHOUT SEPARATE WRITTEN OPINION.


author: PER CURIAM. MURDOCK, Justice BRYAN, Justice

text:
    Ex parte BIO-MEDICAL APPLICATIONS OF ALABAMA, INC., d/b/a BMA Magnolia a/k/a Fresenius Medical Care Magnolia Grove. (In re William Corey Howard, administrator of the Estate of Pamela G. Howard, deceased v. Providence Hospital et al.). Ex parte Providence Hospital. (In re William Corey Howard, administrator of the Estate of Pamela G. Howard, deceased v. Providence Hospital et al.).
    1150362 and 1150363.
    Supreme Court of Alabama.
    July 15, 2016.

      Matthew H. Lembke and Leigh Anne Hodge of Bradley Arant Boult Cummings LLP, Birmingham; and Forrest C. Wilson III of McDowell Knight Roedder & Sledge LLC, Mobile, for petitioner Bio-Medical Applications of Alabama, Inc.
    R. Alan Alexander and Philip D. Maho-ney of Helmsing, Leach, Herlong, Newman & Rouse, P.C., Mobile, for petitioner Providence Hospital.
    Joseph F. McGowin IV and J. Allan Brown of Law Office of J. Alan Brown, LLC, Mobile, for respondent William Corey Howard, administrator of the estate of Pamela G. Howard, deceased.
   PER CURIAM.

Providence Hospital and Bio-Medical Applications of Alabama, Inc., d/b/a BMA Magnolia a/k/a Fresenius Medical Care Magnolia Grove (hereinafter referred to collectively as “the defendants”) separately petitioned this Court for a writ of mandamus directing the Mobile Circuit Court to enter a summary judgment in their favor. Because we conclude that the wrongful-death action filed against the defendants is a nullity, we grant the petitions.

Pamela G. Howard (“Pamela”) died on September 24, 2012. One of Pamela’s sons, Michael Darrick Howard (“Darrick”), petitioned the probate court to probate her will and to grant him letters testamentary. Attached to Darrick’s petition was a document in which Pamela’s other son, William Corey Howard (“Corey”), agreed that Dar-rick should be granted letters testamentary. On January 6, 2014, the probate court granted Darrick letters testamentary, establishing him as the personal representative of Pamela’s estate. Under § 6-5-410, Ala.Code 1975, only Darrick, as personal representative, had the authority to bring a wrongful-death action. See Ex pcurie Hubbard Props., Inc., 205 So.3d 1211 (Ala. 2016).

On June 26, 2014, Corey filed a wrongful-death action against the defendants, which had provided health-care services to Pamela shortly before her death. On September 26, 2014, more than two years after Pamela’s death, the defendants filed separate motions for a summary judgment; they argued, among other things, that Corey’s wrongful-death action was a nullity because it had not been initiated by Darrick, the personal representative of Pamela’s estate. A few days later, Corey filed a motion under Rule 17(a), Ala. R. Civ. P., to substitute Darrick as the plaintiff. The trial court held a hearing on the defendants’ summary-judgment motions and on Corey’s motion to substitute Darrick as the plaintiff. On December 2, 2015, the trial court denied the summary-judgment motions and ordered the substitution of Darrick as the plaintiff. The defendants then filed their separate petitions for a writ of mandamus asking this Court to direct the trial court to enter a summary judgment in their favor.

“A writ of mandamus is an extraordinary remedy, and it will be ‘issued only when there is: 1) a clear legal right in the petitioner to the order sought; 2) an imperative duty upon the respondent to perform, accompanied by a refusal to do so; 3) the lack of another adequate remedy; and 4) properly invoked jurisdiction of the court.’ Ex parte United Serv. Stations, Inc., 628 So.2d 501, 503 (Ala.1993).”

Ex parte Empire Fire & Marine Ins. Co., 720 So.2d 893, 894 (Ala.1998).

The defendants correctly argue that this case is “on all fours” with this Court’s recent decision in Ex parte Hubbard Properties, supra, which summarized the law regarding the effect of the filing of a wrongful-death action under § 6-5-410 by someone other than the personal representative and a subsequent effort to substitute the personal representative as the plaintiff. Ex parte Hubbard Properties demonstrates that Corey’s wrongful-death action is a nullity and that the defendants are entitled to a summary judgment.

In Ex parte Hubbard Properties, after the decedent’s death, letters of administration were issued to the county administrator, making her the personal representative of the decedent’s estate. The decedent’s widow then filed a wrongful-death action under § 6-5-410 as the decedent’s “attorney in fact.” However, under that statute, the personal representative, not the decedent’s widow, is the proper party to file a wrongful-death action. More than two years after the decedent’s death, the decedent’s widow sought to substitute the personal representative as the plaintiff in her wrongful-death action, and the trial court allowed the substitution. The defendants filed a motion for a summary judgment, which the trial court denied. The defendants then filed a petition for a writ of mandamus with this Court, arguing that the wrongful-death action was a nullity because it had not been filed by the personal representative and that the personal representative could not be substituted as the plaintiff. We agreed, explaining:

“In Waters v. Hipp, 600 So.2d 981, 982 (Ala.1992), this Court explained:
“ ‘A wrongful death action is purely statutory; no such action existed at common law. Simmons v. Pulmosan Safety Equipment Corp., 471 F.Supp. 999 (S.D.Ala.1979). Section 6-5-410 provides that the personal representative of the deceased may bring a wrongful death action. A “personal representative,” for the purposes of § 6-5-410, is an executor or an administrator. Hatas v. Partin, 278 Ala. 65, 175 So.2d 759 (1965). One who sues under this section without having been appointed executor or administrator does not qualify under this section as a personal representative, and the suit is a nullity. Downtown Nursing Home, Inc. v. Pool, 375 So.2d 465 (Ala.1979), cert. denied, 445 U.S. 930, 100 S.Ct. 1318, 63 L.Ed.2d 763 (1980).’
“In this case, the undisputed evidence establishes that [the personal representative] was appointed the administratrix of [the decedent’s] estate 15 days before [the decedent’s widow] filed the wrongful-death action. Therefore, [the decedent’s widow] was without the authority to file the wrongful-death action, and that action is a nullity. See Ex parte Tyson Foods, Inc., 146 So.3d 1041,1042-43 (Ala.2013) (‘The statute providing for a wrongful-death action, § 6-5-410(a), Ala.Code 1975, allows only a personal representative of the deceased’s estate to bring such an action.’); see also Waters, supra. Finally, because the action is a nullity, [the personal representative] could not be substituted as the plaintiff. See generally Downtown Nursing Home, Inc. v. Pool, 375 So.2d 465, 466 (Ala.1979) (Tn the present case, Johnnie E. Parker filed suit without having been appointed executor or administrator. Since he did not qualify under § 6-5-410 as a personal representative this suit was a nullity. Therefore, the doctrine of relation back, found in Rule 15(c), [Ala. R. Civ. P.], does not apply.’).
“... [W]e conclude that the action [the decedent’s widow] filed is a nullity and that the substitution of [the personal representative] as the plaintiff was not sufficient to overcome that fatal error .... ”

Ex parte Hubbard Properties, 205 So.3d at 1213-14.

Ex parte Hubbard Properties is materially indistinguishable from this case. Dar-rick was appointed personal representative of Pamela’s estate; thus, Darrick was the only person with the authority to file a wrongful-death action under § 6-5-410. However, Corey filed the wrongful-death action. Because Corey lacked the authority to file the wrongful-death action, that action is a nullity, like the action in Ex parte Hubbard Properties. Further, because the action is a nullity, Darrick could not be substituted as the plaintiff.

Corey, however, argues that this case is distinguishable from Ex patte Hubbard Properties. He argues that, unlike the personal representative in Ex parte Hubbard Properties, Darrick authorized Corey to bring the wrongful-death action under § 43-2-843(17), Ala.Code 1975, which allows a personal representative to employ an agent to perform “any act of administration.” The defendants, however, argue that § 43-2-843(17) is inapplicable. Corey contends that we may not consider the defendants’ argument addressing § 43-2-843(17) because they did not present those arguments in the trial court or in their mandamus petitions. The defendants first directly addressed the applicability of § 43-2-843(17) in their reply briefs filed in this Court in response to Corey’s argument that that statute is applicable. Thus, Corey argues that we should accept his argument that § 43-2-843(17) authorized Darrick to employ Corey to file the wrongful-death action as uncontroverted and deny the defendants’ petitions on that basis.

Typically an appellant or a petitioner may not present an argument that was not raised in the trial court or that was presented to this Court for the first time in a reply brief. Birmingham Bd. of Educ. v. Boyd, 877 So.2d 592, 594 (Ala. 2003). However, those prohibitions are inapplicable here. In the trial court, Corey argued that § 43-2-843(17) allowed him to file the wrongful-death action despite the fact that he was not the personal representative. That argument was a secondary one, and, significantly, it was not a basis of the trial court’s December 2, 2015, order, which was founded on a separate argument made by Corey. Although the defendants did not mention § 43-2-843(17) in their arguments to the trial court, they essentially addressed Corey’s argument regarding § 43-2-843(17) by maintaining that the action commenced by Corey is simply a nullity because only a personal representative may file a wrongful-death action under § 6-5-410. See, e.g., Ex parte Hubbard Properties. Further, the defendants cannot be faulted for failing to discuss § 43-2-843(17) in their mandamus petitions because that statute was not a basis of the trial court’s. order, which was grounded on another argument made by Corey. Finally, the defendants in their reply briefs are allowed to respond to arguments raised by Corey in his brief, including the argument that § 43-2-843(17) is applicable. “[I]t is well settled that ‘where an appellee raises a[n] argument not addressed by the appellant in its opening brief, the appellant may reply.’ ” McCray v. Fidelity Nat’l Title Ins. Co., 682 F.3d 229, 241 (3d Cir.2012) (quoting Bennett v. Tucker, 827 F,2d 63, 69-70 n. 2 (7th Cir.1987)). The defendants’ arguments regarding the applicability of § 43-2-843(17) are therefore properly before us.

We now turn to the merits of Corey’s argument that this case is- distinguishable from Ex parte Hubbard Properties based on the application of § 43-2-843(17), which is a part of the Probate Procedure Act, § 43-2-830 et seq., Ala.Code 1975, Corey argues that, unlike the personal representative in Ex parte Hubbard Properties, Darrick authorized Corey to bring the wrongful-death action under § 43-2-843(17). Section 43-2-843 provides, in pertinent part:

“Except as restricted or otherwise provided by the will or by an order of court and subject to the priorities stated in Section 43-8-76, a personal representative, acting prudently for the benefit of the interested persons, may properly:
“(17) Employ necessary persons, including appraisers, attorneys, auditors (who may include certified public accountants, public accountants, or internal auditors), investment advis-ors, or agents, even if they are associated with the personal representative, to advise or assist the personal representative in the performance of administrative duties; act without independent investigation upon recommendations of agents or advisors; and instead of acting personally, employ one or more agents to perform any act of administration, whether or not discretionary.”

(Emphasis added.) Corey argues that § 43-2-843(17) allowed Darrick, as the personal representative of Pamela’s estate, to appoint Corey as Darrick’s agent to bring the wrongful-death action. Corey cites his and Darrick’s affidavits as evidence of such an appointment. In their affidavits, Corey and Darrick testified that they had mistakenly believed that they were both personal representatives of the estate and that they had agreed that Corey would be responsible for filing the wrongful-death action.

However, § 43-2-843(17) does not apply to this wrongful-death action. Section 43-2-843(17) allows the personal representative to employ an agent “to perform any act of administration,” and filing a wrongful-death action is not an “act of administration.” “In [a wrongful-death action], the personal representative acts as agent of legislative appointment” and, upon recovery, “acts as a quasi trustee for those who are entitled thereto under the statute of distribution. Such damages are not subject to administration and do not become a part of the deceased’s estate.” United States Fid. & Guar, Co. v. Birmingham Oxygen Serv., Inc., 290 Ala. 149, 155, 274 So,2d 615, 621 (1973).

“[The wrongful-death] statute authorizes suit to be brought by the personal representative for a definite legislative purpose—to prevent homicide. In prosecuting such actions, the personal representative does not act strictly in his capacity as administrator of the estate of his decedent, because he is not proceeding to reduce to possession the estate of his decedent, but rather he is asserting a right arising after his death, and because the damages recovered are not subject to the payment of the debts or liabilities of the decedent.”

Hatas v. Partin, 278 Ala. 65, 68, 175 So.2d 759, 761 (1965). This is a long-established principle in Alabama law. Discussing an earlier version of Alabama’s wrongful-death statute, this Court observed that the legislature has

“impose[d] upon the administrator a trust separate and distinct from the administration. The trust is not for the benefit of the estate, but of the widow, children, or next of kin of the deceased. The administrator fills this trust, but he does not do it in the capacity of representative of the estate. It is altogether distinct from the administration, notwithstanding it is filled by the administrator.”

Hicks v. Barrett, 40 Ala. 291, 293 (1866) (discussing Ala.Code of 1852, § 1938). See also Wood v. Wayman, 47 So.3d 1212, 1217 (Ala.2010) (concluding that the relation-back provision of § 43-2-831, Ala.Code 1975, a part of the Probate Procedure Act, did not apply to a wrongful-death action brought under § 6-5-410); and Ex parte Rodgers, 141 So.3d 1038, 1043 (Ala.2013) (concluding that a part of the Probate Procedure Act, § 43-2-848, Ala.Code 1975, which entitles the personal representative to compensation for services, did not allow a personal representative to be compensated from the proceeds recovered in a wrongful-death action).

Thus, § 43-2-843(17), because it concerns acts of administration, does' not apply to a wrongful-death action. Therefore, that statute does not alter our determination that this case is materially indistinguishable from Ex parte Hubbard Properties. Accordingly, there is no need for us to determine whether the facts indicate that Corey was actually acting as Darrick’s agent under § 43-2-843(17) when Corey filed the wrongful-death action.

The wrongful-death action filed by Corey is a nullity, and, because the action is a nullity, Darrick could not be substituted as the plaintiff. Ex parte Hubbard Properties. Therefore, we grant the petitions for the writ of mandamus and direct the trial court to enter a summary judgment in favor of the defendants.

1150362—PETITION GRANTED; WRIT ISSUED.

1150363—PETITION GRANTED; WRIT ISSUED.

STUART, BOLIN, PARKER, SHAW, and MAIN, JJ,, concur.

MURDOCK, WISE, and BRYAN, JJ., dissent.

MURDOCK, Justice

(dissenting),

I agree with the main opinion that § 43-2-843(17), Ala.Code 1975, does not authorize a personal representative to delegate to another person the authority to bring a wrongful-death action, I also agree that, having concluded that the wrongful-death action brought by William Corey Howard (“Corey”) in this case is a nullity under this Court’s holding in Ex parte Hubbard Properties, Inc., 205 So.3d 1211 (Ala.2016), the Court acts appropriately to address the issue of the applicability of § 43-2-843(17) in the manner that it does.

As regards the latter point, it was not on the basis of § 43-2-843(17) that the trial court denied the defendants’ motions for a summary judgment. Whether the applicability of § 43-2-843(17) was raised in the respondent’s brief or not, therefore, it may be considered by this appellate court as an alternative basis for affirming the trial court’s decision to deny the summary-judgment motions if, but only if, this Court can decide that it constitutes an alternative valid, legal ground for affirming the trial court’s decision that can be addressed without violating the petitioners’ due-process rights. That is, it could provide a basis for affirming the trial court’s decision if this Court could decide (a) as a matter of law that it represents a (b) valid ground for affirming the trial court’s decision and that our invocation of it (c) does not implicate due-process concerns. See Pavilion Dev., L.L.C. v. JBJ P’ship, 979 So.2d 24 (Ala.2007); Liberty Nat’l Life Ins. Co. v. Univ. of Alabama Health Servs. Found., P.C., 881 So.2d 1013, 1020 (Ala.2003).

In this case, the Court decides that this ground does not represent a “valid” legal ground for affirming the trial court’s decision. That is, the factual issue whether Michael Darrick Howard did in fact authorize Corey to act as his agent in bringing a wrongful-death action against the defendants need not be reached because of the main opinion’s negative answer to the purely legal question whether § 43-2-843(17) would be applicable even if such an authorization had occurred as a factual matter. And given the procedural history of this case, I see no due-process implications to the Court’s having considered the question.

That said, however, I must dissent in this case because of my disagreement with the premise that the complaint here was a “nullity.” It was based on my disagreement with the notion that a complaint similar to the one at issue here was a “nothing” that I dissented in Hubbard Properties, the decision upon which the main opinion primarily relies, as well as in Alvarado v. Estate of Kidd ex rel. Kidd, 205 So.3d 1188, 1200 (Ala.2016) (Murdock, J., dissenting) (urging a return to the holding in Ogle v. Gordon, 706 So.2d 707 (Ala.1997)), Richards v. Baptist Health Sys., Inc., 176 So.3d 179, 179 (Ala.2014) (Murdock, J., dissenting), and Wood v. Wayman, 47 So.3d 1212, 1220 (Ala.2010) (Murdock, J., dissenting).

BRYAN, Justice

(dissenting).

I respectfully dissent. See Northstar Anesthesia of Alabama, LLC v. Noble, 215 So.3d 1044, 1064 (Ala.2016) (Bryan, J., dissenting).

      . This case concerns § 6-5-410, Alabama’s general wrongful-death statute. We note that § 6-5-391, Ala.Code 1975, which provides for a wrongful-death action based on the death of a minor, permits a father or mother to sue under that statute.


author: PER CURIAM. BOLIN, Justice

text:
    STATE of Alabama ex rel. Luther STRANGE, Attorney General v. Tyrone CLARK, Sr., Sheriff of Sumter County.
    1151021.
    Supreme Court of Alabama.
    July 27, 2016.

      Luther Strange, atty. gen., and Michael B. Duffy and Beau Brown, deputy attys. gen., and Megan A. Kirkpatrick, asst. atty. gen.
    Chad A. Morgan, Huntsville; and Robert B. Tuten, Huntsville, for Tyrone Clark.
   PER CURIAM.

In January 2015, Tyrone Clark, Sr., began his present term of office as the Sheriff of Sumter County. On June 30, 2016, the State of Alabama, by and through its Attorney General, pursuant to §§ 36-11-4 and 36-11-5, Ala.Code 1975, filed an information of impeachment and a prayer for ouster, charging that Sheriff Clark, during his present term of office, willfully neglected his duty and engaged in corruption while in office, in violation of § 36-11-1, Ala.Code 1975, and Art. VII, § 173 and § 174, Ala. Const.1901.

The information contained two charges: willful neglect of duty and corruption in office. With regard to Charge one in the information, ■willful neglect of duty by Sheriff Clark during his present term of office, the information included the following nine specifications, namely that Clark::

1. “[W]illfully neglected his duty to secure and supervise inmates in his custody under Ala.Code [1975,] § 14-6-l[,] when he made Rodney Coats, an inmate in the Sumter County Jail, a trustfy]. Coats had an extensive criminal history for drug-related offenses, and he was placed in jail under these criminal charges: Trafficking in Cocaine, Trafficking in Methamphetamine, Possession of a Controlled Substance, Possession of Marijuana First Degree, Receiving Stolen Property Second Degree, Certain Persons Forbidden to Possess a Pistol, Assault First Degree, and Possession of Drug Paraphernalia. His bond for these charges totaled $675,000.00.
“When he made Coats a trustfy], Sheriff Clark gave Coats privileges, including allowing him to move freely about both the Jail and Administration Buildings of the Sumter County Sheriffs Officé and allowing Coats to leave the Jail, sometimes without law enforcement oversight.”
2. “[W]illfully neglected his duty to prevent the introduction of contraband into the Jail and supervise the inmates housed therein under Ala.Code [1975,] §§ 14-6-1 and 13A-10-37 and -38. Specifically, Sheriff Clark aided Rodney Coats in bringing contraband into the Sumter County Jail by ordering the Sumter County Detention Officers not to search Coats when he would return to the Jail after being outside of the Jail and free of law enforcement oversight. This contraband included controlled substances, cell phones, and cigarettes.
“Sheriff Clark also protected Coats from ‘shake downs’ performed by the Sumter County Jail Staff, as well as ‘drug sweeps’ at the Jail by outside law enforcement agencies, by removing him from the Jail or instructing Jail staff to leave Coats alone.
“Furthermore, Sheriff Clark allowed Coats to receive visitors at the Sumter County Sheriffs Office Administrative Building who were not searched or subjected to any security measures before meeting with Coats. These visitors were also allowed to access the Sumter County Sheriffs Office Administrative Building through an entrance that was not monitored by surveillance cameras.”
3.“[W]illfully neglected his duty under Ala.Code [1975,] § 14—6—1[,] to supervise the inmates in the Sumter County Jail and prevent inmates from possessing a deadly weapon under Ala. Code [1975,] § 13A-10-36, by allowing Rodney Coats to have access to firearms, even though Coats had pending charges for Assault First Degree and Certain Persons Forbidden from Possessing a Handgun.”
4. “[W]illfully neglected his duty under Ala.Code [1975,] § 14-6-16[,] to safely preserve the process or order by which prisoners are committed to jail by permitting Rodney Coats, himself an inmate, to process prisoners.”
5. “[W]illfully neglected his duty under Ala.Code [1975,] § 14-6-l[,] to maintain custody of inmate Ronald James. Sheriff Clark gave James, who was serving a 10-year sentence, split to serve 14 months, for the violent offense of Burglary Second Degree, a ‘jail pass.’ This allowed James to leave the custody of the Sumter County Jail for extended periods of time, endangering the safety of the victim involved in the case for which James was incarcerated, as well as endangering the safety of the residents of Sumter County.”
6. “[W]illfully neglected his duty under Ala.Code [1975,] § 14—6—1[,] to maintain custody of inmate James Mar-kell Bell. Sheriff Clark also failed to swear out an arrest warrant, apprehend, or arrest Bell after Bell escaped from the Sumter County Jail in violation of Ala.Code [1975,] § 13A-10-32.”
7. “[W]illfully neglected his duty to supervise jail inmates and secure the Jail under Ala.Code [1975] § 14—6—1[,] by giving inmate Rodney Coats access to an unsecured room in the administration building, where Coats had sexual intercourse with female visitors. The visitors were never searched, and the entrance to the room was not monitored by cameras or otherwise.”
8. “[W]illfully neglected his duty to supervise jail inmates, secure the Jail, and enforce the law under Ala.Code [1975,] §§ 14-6-1 and 36-22-3[,] when he provided an environment in the Administration Building that allowed Rodney Coats to engage in Human Trafficking in the Second Degree, in violation of Ala.Code [1975,] § 13A-6-153(a)(2).”
9.“[W]illfully neglected his duty to properly appoint and supervise deputies under Ala.Code [1975,] § 36-22~3[,] when he appointed Johnny Archibald a deputy sheriff and directed Archibald to patrol on his own, even though Archibald had not been certified as a law enforcement officer by the Alabama Peace Officers Standards and Training Commission, in violation of Ala. Admin. Code [(Peace Officers Training), Rule] 650-X-2-.01.”

With regard to Charge two in the information, corruption in office by Sheriff Clark during his present term of office, the information included the following three specifications, namely that Clark:

1. “[U]sed his official position or office to benefit himself by personally and privately employing inmates of the Sumter County Jail, namely Rodney Coats and Glenn Brown, in violation of Ala. Code [1975,] §§ 14-5-11 and 36-25-5. Among other things, Sheriff Clark directed Coats and Brown to perform work at his personal home.”
2. “[U]sed his official position or office to benefit himself by operating an undocumented work release program, wherein he allowed inmates from the Sumter County Jail to be released for the purpose of working for individuals and/or businesses on the condition that the inmates pay Sheriff Clark a portion of their wages, in violation of Ala.Code [1975,] §§ 36-22-16 and 14-8-37.
3. “[A]ttempted to use his official position or office to coerce a female employee to have sexual intercourse with him.”

On June 30, 2016, this Court ordered Sheriff Clark to appear before it on July 25, 2016, to answer the information filed against him. The clerk of this Court issued a summons, ordering Terry W. Peeler, the coroner of Sumter County, to serve the summons to appear and the attached order and information on Sheriff Clark. That same day, Peeler served Sheriff Clark with the summons and the attached order and information.

On July 25, 2016, Sheriff Clark appeared before this Court, waived the reading of the information, denied each and every specification charged in the information, and entered a plea of not guilty. The Court then heard ore tenus testimony.

Alabama caselaw is well settled that a proceeding brought pursuant to Art. VII, § 174, Ala. Const.1901, is criminal in nature. Alonzo v. State ex rel. Booth, 283 Ala. 607, 219 So.2d 858 (1969); State ex rel. Mullis v. Mathews, 259 Ala. 125, 66 So.2d 1105 (1953). The State must prove the charges on which the proceeding is based beyond a reasonable doubt. State ex rel. Mullís, supra; State ex rel. Attorney Gen. v. Robinson, 111 Ala. 482, 20 So. 30 (1896); and State v. Buckley, 54 Ala. 599 (1875).

Justice McClellan, concurring specially in State ex rel. Attorney General v. Martin, 180 Ala. 458, 461, 61 So. 491, 492 (1913), defined “willful neglect of duty” as an “intentional failure or omission of an officer to perform a plain and manifest duty which he is able to perform when he omits to do so.” “Corruption in office,” also known as “official misconduct,” has been defined as “[a] public officer’s corrupt violation of assigned duties by malfeasance[] misfeasance[] or nonfeasance[]” Black’s Law Dictionary 1150 (10th ed.2014)(defining “official misconduct” as an entry under the term “misconduct”).

Based on specifications 1, 2, 3, 5, 6, 7, and 8 of Charge one in the information and the evidence adduced in support thereof, the Court finds that Sheriff Tyrone Clark, Sr., is guilty beyond a reasonable doubt of willful neglect of duty during his present term of office. Based on specifications 1, 2, and 3 of Charge two in the information and the evidence adduced in support thereof, the Court finds that Sheriff Tyrone Clark, Sr., is guilty beyond a reasonable doubt of corruption during his present term of office. It is the judgment of this Court that Sheriff Clark be impeached, and Tyrone Clark, Sr., is hereby ousted from the office of Sheriff of Sumter County, Alabama.

PARKER, MURDOCK, and WISE, JJ., concur.

STUART, BOLIN, SHAW, MAIN, and BRYAN, JJ., concur specially.

BOLIN, Justice

(concurring specially).

I concur fully with the findings of the per curiam opinion that Sheriff Tyrone Clark, Sr., is guilty beyond a reasonable doubt of corruption in office during his present term of office, as set forth in Charge two of the information, and that Sheriff Tyrone Clark, Sr., is guilty beyond a reasonable doubt of willful neglect of duty during his present term of office, as set forth in Charge one of the information, and as reflected in the seven acts specified in the opinion as supporting that finding. I write specially to state that I find from the evidence that Sheriff Tyrone Clark, Sr., is also guilty beyond a reasonable doubt of specified acts 4 and 9 in Charge one.

STUART, SHAW, MAIN, and BRYAN, JJ., concur.

      . Section 36-11-1 provides, in pertinent part:
      "(a) The following officers may be impeached and removed from office: ... sheriffs....
      “(b) The officers specified in subsection (a) of this section may be impeached and removed from office for the following causes:
      “(1) Willful neglect of duty;
      "(2) Corruption in office;
      "(3) Incompetency;
      "(4) Intemperance in the use of intoxicating liquors or narcotics to such an extent in view of the dignity of the office and importance of its duties as unfits the officer for the discharge of such duties; or
      "(5) Any offense involving moral turpitude while in office or committed under color thereof or connected therewith.”

      . Article VII, § 174, Ala. Const.1901, provides:
      “The chancellors, judges of the circuit courts, judges of the probate courts, and judges of other courts from which an appeal may be taken directly to the supreme court, and solicitors and sheriffs, may be removed from office for any of the causes specified in [Art. VII, § 173,] or elsewhere in this Constitution, by the supreme court, under such regulations as may be prescribed by law. The legislature may provide for the impeachment or removal of other officers than those named in this article.”
      Article VII, § 173, Ala. Const.1901, provides that officials “may be removed from office for willful neglect of duty, corruption in office, incompetency, or intemperance in the use of intoxicating liquors or narcotics to such an extent, in view of the dignity of the office and importance of the duties, as unfits the officer for the discharge of such duties, or for any offense involving moral turpitude while in office, or committed under color thereof, or connected therewith....” See also § 36-11-1, Ala.Code 1975.

      . Malfeasance is defined as ''[a] wrongful, unlawful, or dishonest act; esp., wrongdoing or misconduct by a public official.” Black’s Law Dictionary 1100 (10th ed.2014).

      . Misfeasance is defined as "[a] lawful act performed in a wrongful manner.” Black's Law Dictionary 1151 (10th ed.2014).

      .Nonfeasance is defined as "[t]he failure to act when a duty to act exists.” Black’s Law Dictionary 1216 (10th ed.2014).


author: DONALDSON, Judge.

text:
    Darryl T. GRAY v. CITY OF OPELIKA and Benjamin Carswell.
    2140658.
    Court of Civil Appeals of Alabama.
    Nov. 6, 2015.
    Rehearing Denied Jan. 15, 2016.
    Certiorari Denied Aug. 12, 2016
    Alabama Supreme Court 1150442.

      Joe M. Reed, Montgomery, for appellant.
    Randall Morgan and Elizabeth Brannen Carter of Hill, Hill, Carter, Franco, Cole & Black, P.C., Montgomery, for appellees.
   DONALDSON, Judge.

Darryl T, Gray filed a complaint against the City of Opelika (“the City”) and Benjamin Carswell in the Lee Circuit Court (“the trial court”) seeking the return of property formerly in his possession that had been seized by officers of the City of Opelika Police Department (“OPD”), including Carswell. The City and Carswell submitted documentary evidence showing that federal adoption of the seizure had occurred before Gray had filed his complaint in the trial court, and they moved to dismiss the action based on a lack of in rem jurisdiction. The motion to dismiss was granted, and Gray appeals. We affirm the judgment.

Facts and Procedural History

On August 13, 2014, Gray was driving on Interstate 85 when Carswell, a police officer of the OPD, stopped him for a traffic violation. Documents in the record show that Gray consented to a search of the motor vehicle he was driving. A K-9 unit searched the car for narcotics, and the dog alerted to a center console where a ziplock plastic bag with bundles of United States currency (“the currency”) was located. The police officers seized the currency pursuant to § 20-2-93(b), Ala.Code 1975. On September 2, 2014, the OPD transferred the currency, which had been converted into a cashier’s check, to the United States Drug Enforcement Administration (“the DEA”) in order for federal administrative forfeiture proceedings to be commenced. See 21 U.S.C. § 881 (providing for federal forfeitures of seized property); Cavaliere v. Town of N. Beach, 101 Md. App. 319, 322, 646 A.2d 1058, 1059 (1994) (describing federal administrative forfeiture proceedings). The record does not indicate that Gray filed a claim for the return of the property with any federal agency or court at any time.

On October 20, 2014, Gray filed a complaint in the trial court against the City and Carswell seeking the return of approximately $33,600, the amount of the currency he alleged had been seized. Gray alleged that he was entitled to the return of the currency because the State of Alabama had not promptly instituted a forfeiture proceeding as required by § 20-2-93(c)(re-quiring promptness when instituting state forfeiture proceedings). On December 4, 2014, the City and Carswell filed a motion to dismiss the complaint, arguing that federal jurisdiction had exclusively attached to the currency through federal adoption of the seizure before Gray filed his complaint in the trial court. In support of their motion, the City and Carswell submitted a form signed by Gray indicating his consent to a search of the motor vehicle on August 13, 2014, and a chain-of-custody form showing a transfer of the currency in the form of a cashier’s check from Carswell’s custody to the DEA before Gray filed his complaint in the trial court.

Gray filed a response to the motion to dismiss, arguing that the trial court had acquired jurisdiction when the currency was seized, that no proof of a federal adoptive seizure had been provided, that an administrative forfeiture by the DEA did not confer in rém jurisdiction to a federal court, and that the receipt of a cashier’s check converted from the currency did not constitute actual possession of the currency as required for federal in rem jurisdiction.

The record does not indicate that the trial court ruled on the motion to dismiss filed on December 4, 2014, by the City and Carswell. On April 24, 2015, the City and Carswell filed a renewed motion to dismiss, again arguing that federal jurisdiction had attached to the currency. In addition to the documents submitted with their original motion to dismiss, the City and Carswell submitted a report describing the search of Gray’s motor vehicle and a federal declaration-of-forfeiture certificate declaring the currency forfeited. The certificate indicated that an adoptive seizure had occurred on August 27, 2014, that notice to known parties of interest had been sent, that notice of the seizure had been published, and that no claim to the currency had been filed with the DEA within 30 days of the published notice.

On May 6, 2015, the trial court entered an order dismissing the action for lack of in rem jurisdiction. The trial court made the following findings:

“1. $32,660.10c [] was seized by the Opelika Police Department on August 13, 2014.
“2. Federal authorities approved the ‘adoptive seizure’ of said funds on August 27, 2014, and commenced an administrative forfeiture proceeding.
“3. The seized property was transferred to federal authorities on September 2, 2014.
“4. [Gray] filed his complaint in the Circuit Court of Lee County Alabama on October 20, 2014.”

The trial court determined that “in rem jurisdiction was vested in the federal courts [sic] no later than September 2, 2014, before jurisdiction could have vested in this Court on October 20, 2014.”

Gray filed a motion to reconsider the dismissal, which the trial court denied on May 8, 2015. On May 19, 2015, Gray filed a timely notice of appeal to this court.

Discussion

We construe a motion to dismiss on the ground of a lack of in rem jurisdiction similarly to a Rule 12(b)(1), Ala. R. Civ. P., motion to dismiss for lack of subject-matter jurisdiction and a Rule 12(b)(2), Ala. R. Civ. P., motion to dismiss for lack of personal jurisdiction. Our review of the trial court’s ruling on the motion to dismiss is therefore de novo. Nance v. Matthews, 622 So.2d 297, 299 (Ala.1993) (“On appeal, a dismissal is not entitled to a presumption of correctness.”); see Mattel, Inc. v. Barbie-Club.com, 310 F.3d 293, 298 (2d Cir. 2002) (“We review de novo a dismissal for lack of in rem jurisdiction.”).

We note first that “[e]videntiary matters may be freely submitted on a motion to dismiss that attacks jurisdiction.” Williams v. Skysite Commc’ns Corp., 781 So.2d 241, 245 (Ala.Civ.App.2000) (citing Committee Comments, Rule 12, Ala. R. Civ. P.). When a party has moved to dismiss the case for lack of in rem jurisdiction, the party asserting in rem jurisdiction bears the burden of proving it. See Ex parte Safeway Ins. Co. of Alabama, Inc., 990 So.2d 344, 349 (Ala.2008) (“ ‘Once a defendant has moved to dismiss a case pursuant to Rule 12(b)(1), “the plaintiff bears the burden of establishing the factual predicates of jurisdiction by a preponderance of the evidence.” ’ ” (quoting Lindsey v. United States, 448 F.Supp.2d 37, 42 (D.D.C.2006)(abrogated on other grounds), quoting in turn Erby v. United States, 424 F.Supp.2d 180, 182 (D.D.C.2006), citing in turn Lujan v. Defenders of Wildlife, 504 U.S. 555, 561, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992))); Ex parte Covington Pike Dodge, Inc., 904 So.2d 226, 229 (Ala. 2004)(“ ‘ “[T]he plaintiff bears the burden of proving the court’s personal jurisdiction over the defendant.” ’ ” (quoting Ex parte Dill, Dill, Carr, Stonbraker & Hutchings, P.C., 866 So.2d 519, 525 (Ala.2003), quoting in turn Daynard v. Ness, Motley, Loadholt, Richardson & Poole, P.A., 290 F.3d 42, 50 (1st Cir.2002))); and Mattel, Inc., 310 F.3d at 298 (“On de novo review, ‘the burden of proving jurisdiction is on the party asserting it’.... ” (quoting Robinson v. Overseas Military Sales Corp., 21 F.3d 502, 507 (2d Cir.1994))).

We must construe any allegations in the complaint not controverted by the moving party’s evidence as true. If the moving party presents a prima facie showing of the court’s lack of in rem jurisdiction, the nonmoving party’s jurisdictional allegations carry no presumptive weight. The nonmoving party must then rely on more than the allegations in the complaint by substantiating the jurisdictional allegations with competent proof. See Ex patie Covington Pike Dodge, Inc., 904 So.2d at 229 (regarding dismissal based on lack of personal jurisdiction).

In an adoptive-seizure case, concurrent federal and state in rem jurisdiction cannot attach to the same seized property. Green v. City of Montgomery, 55 So.3d 256, 259 (Ala.Civ.App.2009). If federal in rem jurisdiction attached to the seized property before the initiation of Gray’s action, the trial court lacked in rem jurisdiction, and any judgment other than one dismissing the action is void. Ruiz v. City of Montgomery, 200 So.3d 26, 31 (Ala.Civ. App.2015) (citing Ex parte Citizens Bank, 879 So.2d 535, 538 (Ala.2003), and United States v. 51 Pieces of Real Prop. Roswell, N.M., 17 F.3d 1306, 1309 (10th Cir.1994)).

We first address Gray’s contention that the City and Carswell never established that a federal adoptive seizure had occurred through the materials filed in support of their motion to dismiss. In Green v. City of Montgomery, this court described adoptive seizures by federal officials:

“The adoptive-seizure process begins when state or local authorities seize property as part of a criminal investigation or arrest. Generally, the state or local officials either make a determination that forfeiture is not possible under state law or conclude that it is advantageous to them to transfer the matter to federal authorities for a federal administrative forfeiture proceeding. See I.R.S. Manual 9.7.2.7.3 (July 25, 2007); Asset Forfeiture Law, Practice, and Policy, Asset Forfeiture Office, Criminal Division, United States Department of Justice, Vol. I (1988) at 38 (cited in Johnson v. Johnson, 849 P.2d 1361, 1363 (Alaska 1993)). Once state or local officials have determined that an adoptive seizure is advantageous, they file a request with federal authorities. The appropriate federal agency then decides whether to accept or reject the request. If the adoptive-seizure request is accepted, the property is taken into the custody of federal agents and federal administrative forfeiture proceedings begin.”

55 So.3d at 258. The successful result of federal administrative forfeiture proceedings is a declaration of forfeiture that “shall have the same force and effect as a final decree and order of forfeiture in a judicial forfeiture proceeding in a district court of the United States.” 19 U.S.C. § 1609(b).

Gray refers to the lack of documentation regarding the OPD’s request for the DEA to adopt the seizure and the DEA’s acceptance of a federal adoption of the seizure. In Green, the proceedings for an administrative forfeiture were incomplete, and the type of documentation to which Gray refers was pertinent to our determination of when the purported federal adoption of the seizure began. In this case, the City and Carswell submitted a chain-of-custody form showing a transfer of the currency from the OPD to federal officials on September 2, 2014, and a declaration-of-forfeiture certificate regarding the currency. The declaration-of-forfeiture certificate indicates that federal administrative forfeiture proceedings have been completed and that federal adoption of the seizure occurred on August 27, 2014. The evidence presented a prima facie showing of an adoptive seizure by federal officials and, thus, federal in rem jurisdiction over the currency before Gray filed his complaint on October 20, 2014. Gray presented no evidence to the contrary. We therefore affirm the trial court’s finding that federal officials had adoptively seized the currency before the filing of the complaint in the trial court.

Alternatively, Gray argues that the trial court had in rem jurisdiction over the currency when it was seized by the OPD and Carswell, thereby excluding the possibility of federal in rem jurisdiction, because, he alleges, the OPD seized the currency as property that was being either illegally brought into or illegally taken out of the state. In support, Gray cites to Ex parte James, 780 So.2d 693 (Ala.2000). As explained by the United States District Court for the Middle District of Alabama, Ex parte James does not provide support for that argument:

“The decision in Ex parte James, 780 So.2d 693 (Ala.2000), concerned the question whether the State of Alabama had jurisdiction over the defendant, While the court described in passing circumstances under which a court would have jurisdiction over property in criminal matters, it also noted that jurisdiction over property in criminal cases ‘rarely arises.’ Ex parte James, 780 So.2d at 696. This decision does not address the proper conditions for in rem jurisdiction in a civil forfeiture matter and is therefore inapposite to the case at hand.”

United, States v. Ninety Six Thousand Three Hundred Seventy Dollars in United States Currency, note 3 (Civil Action No. 3:14-CV-356-WHA, Nov. 12, 2014)(M.D.Ala.2014) (not published in F.Supp.3d). Moreover, we note that Gray fails to cite to facts in the record to support the allegation that the currency was illegally brought into or out of the state. He therefore fails to establish error on the part of the trial court based on this argument.

Gray next argues that the trial court had in rem jurisdiction over the currency because a seizure of property pursuant to § 20-2-93 subjects the property to in rem jurisdiction of a state court. This court has addressed that argument and has held “that Alabama law requires a two-step process before state jurisdiction attaches: possession and the filing of an in rem action.” Ruiz, 200 So.3d at 29-30 (citing Green, 56 So.3d at 263). Gray commenced the action seeking the return of the currency in the trial court after the federal adoptive seizure of the currency had occurred. Therefore, the two-step process was not met and in rem jurisdiction could not have vested in the trial court.

Gray further argues that the OPD could not transfer the currency to federal officials because, he asserts, state officials had the duty to promptly institute condemnation proceedings in a state circuit court. Section 20-2-93(h), which provides for state forfeiture actions regarding property seized pursuant to § 20-2-93, states, in relevant part: “Except as specifically provided to the contrary in this section, the procedures for the condemnation and forfeiture of property seized under this section shall be governed by and shall conform to the procedures set out in Sections 28-4-286 through 28—4—290[, Ala. Code 1976].” Section 28-4-286, Ala.Code 1976, states, in relevant part:

“It shall be the duty of such officer in the county or the Attorney General of the state to institute at once or cause to be instituted condemnation proceedings in the circuit court by filing a complaint in the name of the state against the property seized, describing the same, or against the person or persons in possession of said vehicles of transportation, if known, to obtain a judgment enforcing the forfeiture.”

We have held that “ § 20-2-93 neither expressly nor impliedly prohibits a state or local law-enforcement agency from transferring seized property to federal authorities.” Green v. City of Montgomery, 55 So.3d at 261. Moreover, “[fjederal adoption of a seizure has the same effect as if the seizure had originally been made by the United States.” Id. at 259 (citing United States v. One Ford Coupe Auto., 272 U.S. 321, 47 S.Ct. 154, 71 L.Ed. 279 (1926)). Therefore, once federal officials adopt the seizure of the property, the effect is as if the federal officials had originally seized the property. As a result, in this case the federal adoption of the seizure removed any duty by the state officials to institute condemnation proceedings regarding the currency.

In addition, Gray argues that federal in rem jurisdiction never attached because federal officials received a cashier’s check for the currency instead of the actual bills that had been seized. “So long as the state court has not exercised in rem jurisdiction, federal jurisdiction begins the moment the res is controlled by federal agents.” Green, 55 So.3d at 263 (citing United States v. $506,231 in United States Currency, 125 F.3d 442 (7th Cir.1997)). “The federal government controls the res when it is ‘taken or detained’ during a time when no other court has jurisdiction over the res.” Id. at 264 (quoting 21 U.S.C. § 881(c)). We consider whether the conversion of the currency into a cashier’s check had an effect in this case on the transfer of the res to federal officials.

Under Alabama forfeiture law, cash is considered fungible and may be replaced by a monetary instrument such as a cashier’s check. Section 15-5-63, Ala.Code 1975, a part of the Alabama Comprehensive Criminal Proceeds Forfeiture Act, § 15-5-60 et seq., Ala.Code 1975, provides, in part:

“(5)a. In cases where the property to be forfeited is cash, monetary instruments in bearer form, funds deposited in an account in a financial institution, or other like fungible property, it shall not be necessary for the state to identify the specific property, other than as U.S. currency, cash, monetary instruments in bearer form, or as funds deposited in an account in a financial institution, involved in the offense that is the basis for the forfeiture action. Actual serial numbers or other detailed descriptions are not required.
“b. It shall not be a defense that the property involved in such an action has been removed and replaced by identical property.”

Moreover, the United States Court of Appeals for the Third Circuit addressed the issue of possession of cash that is converted into a cashier’s check for the purposes of forfeiture. United States v. Thomas, 319 F.3d 640 (3d Cir.2003). The Third Circuit Court of Appeals adopted the approach of other federal circuits, holding that conversion of cash into a fungible surrogate such as a cashier’s check does not undermine in rem jurisdiction for the purposes of forfeiture. Id. at 644. See Madewell v. Downs, 68 F.3d 1030, 1042 n. 14 (8th Cir.1995) (holding that “[c]urrency, cashier’s checks, and bank deposits are simply surrogates for each other, and in modern society are certainly regarded as ‘fungible,’ when the question is ownership of the funds each represents”); and United States v. $46,588 in United States Currency and $20.00 in Canadian Currency, 103 F.3d 902, 905 (9th Cir.1996) (holding that “the cashier’s check was an appropriate, fungible surrogate for the seized currency”). Although “[i]t behooves authorities to preserve seized money in the form in which they seized it when they intend to use it as physical evidence in a trial,” Thomas, 319 F.3d at 644, the Third Circuit Court of Appeals explained:

“Historically, forfeiture proceeded from the legal fiction that property used in the commission of a crime itself offends the law. See, e.g., The Palmyra, 25 U.S. (12 Wheat.) 1, 14, 6 L.Ed. 531 (1827). The forfeited res, as a legal entity, is identical with the physical article when the property is, for example, a sea vessel, an automobile, or a firearm. Currency, however, differs substantially from such objects. Paper currency, in the form of the Federal Reserve Note, is defined as an ‘obligation[ ] of the United States’ that may be ‘redeemed in lawful money on demand.’ 12 U.S.C. § 411 (2002). These bills are not ‘money per se but promissory notes supported by the monetary reserves of the United States. When an individual engages in a criminal transaction with paper currency, although the individual certainly uses the notes to accomplish the criminal end, the currency’s monetary value funds the transaction and is also an appropriate target of forfeiture. This result also follows from the fact that an individual who uses legal documents representing ownership of land to raise funds for a criminal purpose renders the land itself subject to forfeiture. See United States v. RD 1, Box 1, Thompsontown, 952 F.2d 53 (3d Cir.1991). It would be absurd, in that case, to suppose that forfeiture could attach only to the document and not to the legal interests represented by that document. We therefore hold that the DEA did not abandon the res when it converted the currency to a cashier’s check.”

Thomas, 319 F.3d at 644-45.

We conclude that the conversion of the seized currency into a cashier’s check had no effect on the transfer or control of the res for the purposes of determining in rem jurisdiction. Gray therefore has failed to show an error in the trial court’s holding that federal in rem jurisdiction attached to the seized currency.

For the foregoing reasons, we affirm the judgment.

AFFIRMED.

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

      . Section § 20-2-93 provides, in relevant part:
      “(a) The following are subject to forfeiture:

      "(4) All moneys, negotiable instruments, securities, or other things of value furnished or intended to be furnished by any person in exchange for a controlled substance in violation of any law of this state; all proceeds traceable to such an exchange; and all moneys, negotiable instruments, and securities used or intended to be used to facilitate any violation of any law of this state concerning controlled substances;

      "(b) Property subject to forfeiture under this chapter may be seized by state, county or municipal law enforcement agencies upon process issued by any court having jurisdiction over the property. Seizure without process may be made if:
      “(1) The seizure is incident to an arrest or a search under a search warrant or an inspection under an administrative inspection warrant;

      "(4) The state, county or municipal law enforcement agency has probable cause to believe that the property was used or is intended to be used in violation of this chapter.”

      . We note that this amount differs from the amount Gray alleged was seized. This amount reflects the amount the City and Cars-well asserted was seized.