author: THOMAS, Judge.

text:
    William ANDERSON v. STATE of Alabama.
    2140972.
    Court of Civil Appeals of Alabama.
    April 29, 2016.
    Rehearing Denied June 24, 2016.

      H. Chase Dearman of Dearman Law Firm, P.C., Mobile, for appellant.
    Luther Strange, atty. gen., and Marc A. Starrett, asst. atty. gen., for appellee.
   THOMAS, Judge.

On February 27, 2013, Officer Jimmy Bailey, an officer employed by the Mobile City Police Department, executed a search warrant at the residence of William Anderson. Officer Bailey was accompanied by Officer Carlos Walton, who was also a Mobile City police officer. Although no drugs were found in the search of Anderson’s residence, Officers Bailey and Walton located $15,140 wrapped in a plastic grocery bag in one of Anderson’s boots and a digital scale in Anderson’s residence.

Anderson was arrested and charged with distribution of a controlled substance based on other evidence arising from an investigation conducted by Officers Bailey and Walton. According to Officer Bailey, while being questioned at the police department after his arrest and the search of his residence, Anderson explained that the money in the plastic bag was money Anderson had collected the night before from those who sold marijuana for him. Officer Bailey also testified that Anderson said that he had intended to use $10,000 of the seized money to purchase additional marijuana to sell.

Pursuant to Ala.Code 1975, § 20-2-93, the State instituted a forfeiture action against the currency seized during the search of Anderson’s residence. After a trial, the trial court entered a judgment forfeiting the currency. Anderson appeals.

At trial, Anderson testified that he did not recall his conversation with Officer Bailey regarding where he had gotten the $15,140. Anderson testified that he had been saving the money for some time and that the money was from his paycheck for construction work and from the money he had earned assisting Joe Brown, the proprietor of Club Brown Lounge, with a weekly promotion called “margarita night.” Brown testified that Anderson was paid a percentage of the money earned on “margarita nights” in 2009 and 2010. Brown said that he paid Anderson, on average, $200 to $300 in cash as his portion of the proceeds.

As noted above, Officer Bailey testified that Anderson had admitted that he had collected the money in the boot the night before the search from persons who sold marijuana for Anderson. Officer Bailey also stated that Anderson had said that he had intended to use $10,000 of the seized currency to purchase more marijuana to sell. Although Officer Bailey said that he had recorded that conversation, the recording was not admitted into evidence because it had not been produced to Anderson’s counsel.

Officer Bailey testified that the search warrant was for Anderson’s residence, which was not located in the city limits of Mobile. The record reflects that the search warrant was directed to the sheriff of Mobile County. When asked whether he could properly execute a search warrant made out to the county sheriff, Officer Bailey stated that he was permitted to execute search warrants in the county without being deputized or being part of a task force. He indicated that doing so was a normal practice of the Mobile City Police Department.

Generally, “[o]n appellate review of a ruling from a forfeiture proceeding at which the evidence was presented ore ten-us, the trial court’s judgment is presumed to be correct unless the record shows it to be contrary to the great weight of the evidence.” King v. State, 938 So.2d 967, 970 (Ala.Civ.App.2006). “The ore tenus rule does not, however, extend to cloak a trial judge’s conclusions of law or incorrect application of law to the facts with a presumption of correctness.” $8,011 in United States Currency v. State, 845 So.2d 810, 814 (Ala.Civ.App.2002). Furthermore, “ ‘[wjhere, as here, the facts of a case are essentially undisputed, [an appellate court] must determine whether the trial court misapplied the law to the undisputed facts, applying a de novo standard of review.’ ” Ervin v. City of Birmingham, 137 So.3d 901, 904 (Ala.2013) (quoting Continental Nat’l Indem. Co. v. Fields, 926 So.2d 1033, 1035 (Ala.2005)).

Both in the trial court and in this court, Anderson challenges Officer Bailey’s authority to execute the search warrant at Anderson’s residence. Anderson contends, and the undisputed testimony supports his contentions, that the search warrant was issued by a district-court judge to “the Sheriff of Mobile County,” that Officer Bailey is a municipal police officer employed by the City of Mobile, and that Anderson’s residence is located in Mobile County outside the city limits of the City of Mobile. Further, the record indicates that Officer Bailey was not deputized and that he was not accompanied by a sheriffs deputy at the time he executed the search warrant. These facts, Anderson argues, support the conclusion that the search warrant was not validly executed.

Anderson relies on Ala.Code 1976, §§ 15-5-6 and 15-5-7, to support his argument. Section 15-5-5 states:

“If the judge or the magistrate is satisfied of the existence of the grounds of the application or that there is probable ground to believe their existence, he must issue a search warrant signed by him and directed to the sheriff or to any constable of the county, commanding him forthwith to search the person or place named for the property specified and to bring it before the court issuing the warrant.”

According to § 15-5-7, “[a] search warrant may be executed by any one of the officers to whom it is directed, but by no other person except in aid of such officer at his request, he being present and acting in its execution.”

“It is undisputed that a search warrant may be executed only by the officers to whom it is directed.” Williams v. State, 505 So.2d 1252, 1253 (Ala.Crim.App.1986). Under § 15-5-5, a search warrant is to be directed to the county sheriff or constable, indicating that only sheriff deputies or constables may execute search warrants. When called upon to construe § 15-5-5, the Court of Criminal Appeals determined that the execution of search warrants by municipal officers is authorized in certain, particular instances. In Hicks v. State, 437 So.2d 1344, 1345 (Ala.Crim.App.1982), the Court of Criminal Appeals construed Ala.Code 1975, §§ 12-14-4 and 12-14-32, as permitting municipal judges to issue search warrants directed to municipal law-enforcement officers. The court noted that, “[wjithout doubt, §§ 15-5-5 and 15-5-7 ... do not include municipal police officers as among those authorized to execute search warrants.” Hicks, 437 So.2d at 1345. Similarly, in Williams, the Court of Criminal Appeals determined that a search warrant issued by a municipal judge and directed to the county sheriff “or other lawful officer” was properly executed by Evergreen municipal officers acting within the city limits. Williams, 505 So.2d at 1253. The Williams court applied the principles set out in Hicks to reach its conclusion. Id.

In other cases, the Court of Criminal Appeals has construed § 15-5-5 to allow municipal officers acting under the direction of, or with the authority of, sheriffs deputies to execute search warrants. In Cowart v. State, 488 So.2d 497, 502 (Ala.Crim.App.1985), overruled on other grounds, McClendon v. State, 513 So.2d 102 (Ala.Crim.App.1986), the court, relying on Walden v. State, 426 So.2d 515 (Ala.Crim.App.1982), stated that it is “permissible for a municipal police officer who had been duly sworn as a deputy sheriff to execute a search warrant which was directed to the sheriffs department, even though th[e] deputy was not under the control and supervision of the sheriff.” Similarly, in Gamble v. State, 473 So.2d 1188, 1196 (Ala.Crim.App.l985)(citing United States v. Martin, 600 F.2d 1175 (5th Cir.1979)), the court held that “a search pursuant to an Alabama warrant executed by a municipal officer in cooperation with county sheriffs deputies was valid even if the deputies were present merely to legitimate the search.”

As noted above, however, the search warrant in the present case was issued by a district-court judge, not a municipal judge, and the parties agree that it was directed to the county sheriff. Thus, the present case is unlike both Hicks and Williams, and Officer Bailey did not have the authority to execute the search warrant in the present case pursuant to §§ 12-14-4 and 12-14-32. Furthermore, according to the record, no deputies were present during the search, and Officer Bailey testified that he was not deputized at the time the search was conducted. Thus, Officer Bailey lacked authority to execute the search warrant under the principles announced in Gamble and Cowart.

We are therefore left to determine whether § 15-5-7 prohibits a municipal police officer from executing, without the aid of a sheriffs deputy, a search warrant in the county in which the municipality sits. The State argues that § 15-5-5 and § 15-5-7 do not operate to make Officer Bailey’s execution of the search warrant invalid. According to the State, Ala.Code 1975, § 15-10-1, permits a municipal police officer of any municipality within a county to make an arrest within that county, and Rule 3.3, Ala. R.Crim. P., expands the right to execute an arrest warrant to all municipal police officers within the state. However, Anderson has not challenged Officer Bailey’s authority to arrest Anderson. The State has not satisfactorily explained how the fact that Officer Bailey might have had authority to arrest Anderson under § 15-10-1 or Rule 3.3, which govern arrest power, translates into his authority to execute a search warrant, which, as noted above, is governed by §§ 15-5-5 and 15-5-7.

The State next argues that Rule 3.10, Ala. R.Crim. P., expands the authority to execute search warrants to all police officers within the state. The rule states, in pertinent part: “The search warrant shall be directed to and served by a law enforcement officer, as defined by Rule 1.4(p)[, Ala. R.Crim. P.].” Rule 1.4.(p), Ala. R.Crim. P., defines a “law enforcement officer” as “an officer, employee or agent of the State of Alabama or any political subdivision thereof....” Thus, the State argues, Rule 3.10 allows any law-enforcement officer of any political subdivision of the state to serve or execute any search warrant in the state. However, as noted by Justice Lyons in his concurring-in-the-result opinion in State v. Property at 2018 Rainbow Drive, 740 So.2d 1025, 1030-31 (Ala.1999) (Lyons, J., concurring in the result), Rule 3.10 does not indicate that it supersedes § 15-5-7, which provides specifically that a search warrant is to be executed by the officer to whom it is directed. Justice Lyons explained:

“One of the grounds upon which the trial court predicated its dismissal [of the forfeiture action in Property at 2018 Rainbow Drive ] was that the search was improper, under § 15-5-7, Ala.Code 1975, because the warrant was executed by officers other than those to whom it was directed. The trial court found that this defect in the execution of the warrant required the suppression of the evidence seized at the subject property.
“Section 15-5-7 provides:
“ ‘A search warrant may be executed by any one of the officers to whom it is directed, but by no other person except in aid of such officer at his request, he being present and acting in its execution.’
“This statute has been strictly construed, and compliance with its formality has been required. See Yeager v. State, 500 So.2d 1260 (Ala.Crim.App.1986); Rivers v. State, 406 So.2d 1021 (Ala.Crim.App.1981), cert. denied, 406 So.2d 1023 (Ala.1981); see, also, United States v. Martin, 600 F.2d 1175 (5th Cir.1979) (recognizing that strict compliance with § 15-5-7 is required), overruled on other grounds, United States v. McKeever, 905 F.2d 829 (5th Cir.1990). Failure to comply with § 15-5-7 requires suppression of the evidence seized pursuant to the warrant. See Rivers, supra. Furthermore, the exclusionary rules applicable in criminal prosecutions are equally applicable in forfeiture proceedings. Nicaud v. State ex rel Hendrix, 401 So.2d 43, 45 (Ala.1981).
“In the present case, members of the Gadsden Police Department and an officer of the Alcoholic Beverage Control Board executed a search warrant authorizing a search of the subject property for illegal controlled substances. That search warrant, however, was addressed to ‘The Sheriff of [Etowah CJounty.’ It is undisputed that the members of the Gadsden Police Department and the ABC officer who searched the subject property were not deputized members of the Etowah County Sheriffs Department. It is also undisputed that no member of the Etowah County Sheriffs Department was present and acting in the execution of the warrant. Thus, the warrant was neither executed by ‘any one of the officers to whom it [was] directed’ nor executed by a person ‘in aid of such officer at his request, he being present and acting in its execution,’ as § 15-5-7 requires.2 Therefore, the trial court correctly suppressed the evidence and correctly dismissed the action.
“Last, one could argue that Rule 3.10, Ala. R.Crim. P., has modified § 15-5-7. Rule 3.10 provides, in pertinent part:
“ ‘The search warrant shall be directed to and served by a law enforce ment officer, as defined by Rule 14(p). It shall command such officer to search, within a specified period of time not to exceed ten (10) days, the person or place named for the property specified and to bring an inventory of said property before the court issuing the warrant.... The judge or magistrate shall endorse the warrant, showing the hour, date, and the name of the law enforcement officer to whom the warrant was delivered for execution, and a copy of such warrant and the endorsement thereon shall be admissible in evidence in the courts.’
“(Emphasis added.) Rule 1.4(p) states:
“ ‘ “Law Enforcement Officer” means an officer, employee or agent of the State of Alabama or any political subdivision thereof who is required by law to:
“ ‘(i) Maintain public order;
“‘(ii) Make arrests for offenses, whether that duty extends to all offenses or is limited to specific offenses; and
“ ‘(iii) Investigate the commission or suspected commission of offenses.’
“Therefore, Rule 3.10 does not specifically authorize the execution of a warrant by a law-enforcement officer other than the officer to whom the warrant is directed. As noted above, § 15-5-7 condemns the execution of a warrant by an officer other than the one to whom the warrant is directed. The Rules of Criminal Procedure displace statutes that conflict with the rules. See § 15-1-1, Ala.Code 1975; Ex parte Oswalt, 686 So.2d 368, 370 (Ala.1996). However, if the Advisory Committee thought § 15-5-7 conflicted with Rule 3.10, the Committee easily could have referred to the conflict in the Committee Comments to Rule 3.10. Instead, the Comments, speaking to the statutes modified by the rule, state, ‘This rule is taken from and modifies Ala.Code 1975, §§ 15-5-5, 15-5-8, and 15-5-12.’ I am not prepared to expand on that list in the absence of any reason for thinking the omission of § 15-5-7 was an oversight. «
“2The fact that the members of the Gadsden Police Department and the ABC officer were not deputized by the Etowah County Sheriffs Department distinguishes this case from Cowart v. State, 488 So.2d 497, 502 (Ala.Crim.App.1985), in which the Court of Criminal Appeals held that a warrant directed to the ‘Sheriff of Mobile County’ was properly executed by an officer of the Mobile Police Department because the officer ‘had been personally deputized by the sheriff of Mobile County and had taken an oath to discharge the duties of a deputy sheriff.’ The fact that no member of the Etowah County Sheriffs Department was present during the search distinguishes this case from Yeager, supra, and Gamble v. State, 473 So.2d 1188 (Ala.Crim.App.1985).”

Property at 2018 Rainbow Drive, 740 So.2d at 1030-31 (Lyons, J., concurring in the result) (second emphasis added).

We agree with the analysis performed by Justice Lyons in his opinion concurring in the result in Property at 2018 Rainbow Drive. Section 15-5-7 requires that a search warrant be executed by the officers to whom it is directed, and it is undisputed that the search warrant in the present case was directed to the sheriff of Mobile County, not to the Mobile Police Department or to “any law-enforcement officer.” The testimony at trial established that Officers Bailey and Walton, who are both officers of the Mobile City Police Department, executed the search warrant without assistance from the Mobile County Sheriffs Office. Furthermore, Officer Bailey admitted that he was not deputized by the sheriff. Thus, we agree with Anderson that the search warrant was not properly executed.

The State argues that, even if the search warrant was not properly executed, no ground for reversal exists because of the “good-faith exception.” That exception prevents the exclusion of evidence gathered during a defective search when the officers executing the search reasonably relied on a warrant later held to be invalid. Rivers v. State, 695 So.2d 260, 262 (Ala.Crim.App.1997) (citing United States v. Leon, 468 U.S. 897, 104 S.Ct. 3405, 82 L.Ed.2d 677 (1984)). The Court of Criminal Appeals has explained that “[t]he good faith exception provides that when officers acting in good faith, that is, in objectively reasonable reliance on a warrant issued by a neutral, detached magistrate, conduct a search and the warrant is found to be invalid, the evidence need not be excluded.” Rivers, 695 So.2d at 262.

However, in the present case, it is not the search warrant that is invalid. Instead, our conclusion is that Officer Bailey improperly executed the search warrant in violation of the established law set out in § 15-5-7. We cannot agree that the good-faith exception applies to permit a municipal officer to execute a search warrant directed to a county sheriff in violation of § 15-5-7. Officer Bailey’s reliance on what appears to be an illegal practice of the Mobile City Police Department is not reasonable in light of the statutory directive of § 15-5-7 that a search warrant be executed by the officer to whom it is directed or at his or her direction and in his or her presence.

“Evidence obtained in an illegal search and seizure must be excluded in a forfeiture proceeding and to rely on such evidence violates fundamental constitutional rights.” Moynes v. State, 555 So.2d 1086, 1089 (Ala.Civ.App.1989) (citing Nicaud v. State, 401 So.2d 43 (Ala.1981)). Accordingly, because the search warrant was improperly executed and because the currency seized by Officer Bailey was illegally obtained, the currency cannot form the basis of the forfeiture action. The judgment of the trial court is therefore reversed, and the cause is remanded to the circuit court for entry of a judgment in conformity with this opinion.

REVERSED AND REMANDED WITH INSTRUCTIONS.

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

      . Section 20-2-93(a) reads, in pertinent part, as follows:
      "(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....”

      . As will be discussed, infra, Rule 3.10, Ala. R.Crim. P,, modified § 15-5-5 to permit law-enforcement officers other than sheriffs to execute search warrants.

      . Rule 3.10 was amended in 2002, after the issuance of the opinion in Property at 2018 Rainbow Drive, but the quoted portion of the rule is identical in all respects in both the former and the amended rule.

      . In light of our resolution of the warrant issue, we pretermit consideration of Anderson's other issues on appeal. See Favorite Market Store d/b/a F.M. Serv. Corp. v. Waldrop, 924 So.2d 719, 723 (Ala.Civ.App.2005) (pretermilting discussion of additional issues when the decided issue was dispositive of the appeal).


source: Caselaw Access Project

author: DONALDSON, Judge.

license: Public Domain

text:
    T.E.T. and M.R.T. v. A.T.
    2150290.
    Court of Civil Appeals of Alabama.
    June 10, 2016.

      R. Patrick Chesnut of Abies, Baxter & Parker, P.C., Huntsville, for appellants.
    Amber Yerkey James, Huntsville, for appellee.
   DONALDSON, Judge.

The maternal grandparents of B.J.T. (“the child”), T.E.T. and M.R.T. (“the grandparents”), appeal the judgments of the Madison Juvenile Court (“the juvenile court”) in two separate cases. For the reasons set forth below, we dismiss the appeal insofar as it addresses one case, and we affirm the juvenile court’s judgment entered in the other case.

On May 6, 2011, the juvenile court entered an order in case no. JU-11-1712.01 (“the .01 case”), finding the child to be dependent and vesting temporary custody of the child with the grandparents. At the time the judgment was entered in the .01 case, A.T. (“the mother”) was living with the child and the grandparents in their home and was in agreement with the custodial arrangement. No father is listed on the child’s birth certificate, and no one has attempted to intervene as the child’s father in any of the proceedings involved in this appeal.

On September 17, 2013, the mother filed a petition seeking custody of the child, which the juvenile-court clerk docketed as case no. JU-11-1712.02 (“the .02 case”). In the petition, the mother asserted that the grandparents had forced her to leave their home in August 2012 and that they had restricted her access to the child. The mother also asserted that her circumstances had changed since the entry of the order in the .01 ease, specifically asserting that she was now married, employed, and pregnant with the child’s half sibling and that she could provide for the child.

On December 5, 2013, the parties filed in the .02 case a settlement agreement that they had entered into. Pursuant to the agreement, the grandparents agreed that the mother would have sole legal and sole physical custody of the child. On December 17, 2013, the juvenile court entered a consent judgment incorporating the parties’ settlement agreement in the .02 case. There was no determination made in the consent judgment regarding whether the child was still dependent, and, for purposes of this appeal, there is no need for this court to address whether the judgment vesting sole legal and sole physical custody of the child with the mother is inconsistent with a finding of dependency.

On October 19, 2015, the grandparents filed an “emergency modification of custody” without counsel, which the juvenile-court clerk docketed as JU-11-1712.03 (“the .03 case”). On November 17, 2015, after a hearing, the juvenile court denied the grandparent’s motion in the .03 case.

On December 1, 2015, the grandparents filed in the .02 case a “Motion to Set Aside Custody Modification Order,” in which the grandparents sought relief under Rule 60, Ala. R. Civ. P., from the December 17, 2013, consent judgment. The grandparents asserted that the mother had lacked “standing” to seek to modify or to terminate the May 6, 2011, order entered in the .01 case and that, therefore, the December 17, 2013, consent judgment entered in the .02 case was void. The grandparents also asserted that, even if the mother had possessed “standing,” the juvenile court had incorrectly applied the “best interest” standard rather than the custody-modification standard set out in Ex parte McLendon, 455 So.2d 863 (Ala.1984), when it entered the consent judgment in the .02 case. On that same day, December 1, 2015, the grandparents filed a “motion for new trial, to alter, amend, or vacate order, and to set aside custody modification order” directed to the November 17, 2015, order entered in the .03 case. The juvenile court did not rule on either of the grandparents’ December 1, 2015, motions. On December 28, 2015, the grandparents filed a notice of appeal to this court, indicating that they sought to appeal the orders entered in the .02 case and in the .03 case. One appeal, with one appellate case number, was docketed.

At the outset, we must determine whether this court has jurisdiction to consider the grandparents’ appeal, because “jurisdictional matters are of such magnitude that we take notice of them at any time and do so even ex mero motu.” Nunn v. Baker, 518 So.2d 711, 712 (Ala.1987).

We construe the grandparents’ motion filed in the .03 case on December 1, 2015, as a motion filed pursuant to Rule 59, Ala. R. Civ. P., because it was filed within 14 days of the entry of the order it is directed to and it seeks to alter, amend, or vacate that order or a new trial. See Rule 59(a) and (e), Ala. R. Civ. P., and Rule 1(B), Ala. R. Juv. P.; see also L.M. v. Shelby Cty. Dep’t of Human Res., 999 So.2d 505, 506 (Ala.Civ.App.2008)(constru-ing postjudgment motion in a juvenile matter as having been filed pursuant to Rule 59 because it was filed within 14 days of the entry of the judgment it was directed to and because it requested that the judgment be altered, amended, or vacated). That motion was denied by operation of law on December 15, 2015. See Rule 1(B), Ala. R. Juv. P. However, the grandparents’ December 1, 2015, motion filed in the .02 case sought to set aside a judgment that had been entered almost two years before, in December 2013. We construe that motion as a motion filed pursuant to Rule 60(b), Ala. R. Civ. P. That motion was not denied by operation of law pursuant to Rule 1(B), Ala. R. Juv. P., and remains pending.

“While a postjudgment motion tiled pursuant to Rule 50, 52, 55, or 59 cannot remain pending in the juvenile courts for more than 14 days, J.S. v. S.W., 702 So.2d 169 (Ala.Civ.App.1997), a Rule 60(b) motion for relief from judgment is not deemed denied by operation of law under Rule 1(B), Ala. R. Juv. P.”

Ex parte R.S.C., 853 So.2d 228, 234 (Ala.Civ.App.2002). Because the grandparents’ motion for relief pursuant to Rule 60(b) filed in the .02 case remains pending in the juvenile court, this court lacks jurisdiction to consider the portion of the grandparents’ appeal that arises from the .02 action. Accordingly, we dismiss the grandparents’ appeal in part.

The grandparents’ brief on appeal raises arguments attacking only the validity of the December 17, 2013, consent judgment entered in the .02 case, which is the judgment addressed in their Rule 60(b) motion that remains pending in the juvenile court. Therefore, because they have failed to raise any arguments in their appellate brief regarding any alleged error of the juvenile court in the .03 case, the grandparents have waived any arguments regarding the propriety of the judgment entered in the .03 case or the denial of the Rule 59 motion filed in the .03 case. Boshell v. Keith, 418 So.2d 89, 92 (Ala.1982)(“When an appellant fails to argue an issue in its brief, that issue is waived.”). Because the grandparents have waived any arguments relative to the .03 case they might have on appeal, we affirm the judgment in that case. Because we do not have jurisdiction to consider the grandparents’ appeal as it relates to the .02 case, we dismiss the appeal as to that case.

The mother’s request for an award of attorney’s fees on appeal is denied.

APPEAL DISMISSED AS TO CASE NO. JU-11-1712.02; JUDGMENT ENTERED IN CASE NO. JU-11-1712.03 AFFIRMED.

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


text:
    Michael Sheldon POOLE v. Melanie Holley POOLE.
    2150347.
    Court of Civil Appeals of Alabama.
    June 10, 2016.

      Lindsey Mussleman Davis of Holt, Mus-sleman, Morgan & Alvis, Florence, for appellant.
    Terry L. Mock and Andrew L. McGee, Tuscumbia, for appellee.
   DONALDSON, Judge.

Generally, a trial court does not have jurisdiction to take action in a case that has been appealed until a certificate of judgment has been issued by the appellate court. See Veteto v. Yocum, 792 So.2d 1117, 1118-19 (Ala.Civ.App.2001), and Rule 41, Ala. R.App. P. Applying that principle to this case, this court determines that the orders that we have been asked to review are void and that, therefore, this appeal is due to be dismissed.

This is the second time that Michael Sheldon Poole (“the husband”) and Melanie Holley Poole (“the wife”) have been before this court concerning the judgment divorcing them entered by the Lauderdale Circuit Court (“the trial court”). See Poole v. Poole, 212 So.3d 244 (Ala.Civ.App.2015). This court provided the following summary of the proceedings in Poole:

“[The husband] appeals from a judgment of divorce entered by [the tidal court] that, among other things, awarded [the wife] a portion of the husband’s retirement accounts, granted the wife periodic alimony, awarded the wife alimony in gross, restrained the husband from having contact with the wife, and found the husband in criminal contempt of court. We affirm the portions of the judgment finding the husband to be in contempt and restraining the husband from contacting the wife. Because we find that insufficient evidence was presented regarding certain retirement assets to support the property division, we reverse the trial court’s judgment insofar as it distributed the marital estate, including the awards to the wife of periodic alimony and alimony in gross, and we remand the cause to the trial court for further proceedings consistent with this opinion.”

212 So.3d at 244-45.

This court released the opinion in Poole on May 15, 2015. On May 29, 2015, the husband filed an application for rehearing in this court. On August 6, 2015, this court overruled the husband’s application for rehearing. The husband filed a petition for a writ of certiorari to our supreme court on August 21, 2015, On November 12, 2015, the supreme court, pursuant to Rule 39(f), Ala. R.App. P., entered an order granting the petition in part, denying the petition in part, and setting a briefing schedule for the parties. As of the date of release of this opinion, that case remains pending in our supreme court (case no. 1141253). Neither this court nor our supreme court has issued a certificate of judgment pursuant to Rule 41, Ala. R.App. P.

After this court released the opinion in Poole but while the cause was pending further appellate review on rehearing in this court and on certiorari review in the supreme court, the parties and the trial court recommenced the proceedings below despite the fact that neither this court nor the supreme court has issued a certificate of judgment in this case. On June 11, 2015, the husband filed in the trial court a “motion for hearing on remand from the court of civil appeals.” That motion does not mention that the husband had filed an application for rehearing in this court. The trial court set the matter for a hearing on August 7, 2015. On September 24, 2015, the trial court entered an order (“the September 24, 2015, order”) stating that the part of the divorce judgment granting the wife an interest in the husband’s retirement accounts “shall be modified to remove any portion of the award from the retirement of the Husband with Wise Alloys or Reynolds Aluminum to the Wife, in keeping with the instructions from the Court of Civil Appeals” in Poole and that “[a]ll other aspects of the [trial court’s divorce judgment] shall remain in full force and effect.”

On October 20, 2015, the husband filed a motion to alter, amend, or vacate the September 24, 2015, order. On January 6, 2016, the trial court entered an order (“the January 6, 2016, order”) on the husband’s postjudgment motion stating, in pertinent part, “[t]hat any award made to the Wife concerning retirement benefits of the Husband at ALCOA, Wise Alloys, or Reynold’s Metal Company is hereby vacated as provided by the Opinion of the Court of Civil Appeals [in Poole ]. The remaining award shall remain in full force and effect.” On January 15, 2016, the husband filed a notice of appeal to this court. This court docketed the current appeal as case no. 2150347.

“We first consider whether we have jurisdiction over this appeal, because ‘jurisdictional matters are of such magnitude that we take notice of them at any time and do so even ex mero motu.’ Wallace v. Tee Jays Mfg. Co., 689 So.2d 210, 211 (Ala.Civ.App.1997)(quoting Nunn v. Baker, 518 So.2d 711, 712 (Ala.1987)). Pursuant to Rule 41(a)(1), Ala. R.App. P., the timely filing of an application for rehearing in the Court of Civil Appeals “will stay the issuance of the certificate of judgment until disposition of the application unless otherwise ordered by the court.” Furthermore, pursuant to Rule 41(b), “[t]he timely filing of a petition for certio-rari in the Supreme Court shall stay the issuance of the certificate of judgment by the courts of appeals, which stay shall continue until the final disposition by the Supreme Court.” “A ‘“judgment of [a Court of Appeals] is not a final judgment until that court issues a certificate of judgment, and an application for rehearing in that court and a petition in [the supreme court] for writ of certiorari stay the issuance of that certificate.””’ Veteto, 792 So.2d at 1118-19 (quoting Ex parte Tiongson, 765 So.2d 643, 643 (Ala.2000), quoting in turn Jackson v. State, 566 So.2d 758, 759 n. 2 (Ala.1990), and citing Rule 41). See also Campbell v. Taylor, 76 So.3d 258, 263 (Ala.Civ.App.2011)(holding that the trial court was without jurisdiction to amend the case-action summary to reflect disposition of the case by summary judgment when the trial court “had not been reinvested with jurisdiction because this court had not issued a certificate of judgment”); Bradford v. James, 879 So.2d 1184, 1188 (Ala.Civ.App.2003)(holding a judgment entered by a trial court before this court issued a certificate of judgment pursuant to Rule 41 to be void for lack of jurisdiction); and Plantation S. Condo. Ass’n, Inc. v. Profile Mgmt. Corp., 783 So.2d 838, 841 (Ala.Civ.App.2000)(holding that an order entered by the trial court six days after this court released an opinion in the case was void because this court had not issued a certificate of judgment).

In the present case, the issuance of a certificate of judgment in Poole has been stayed by the husband’s application for rehearing filed in this court and by the husband’s petition for a writ of certiorari to our supreme court, which has been granted in part. Because no certificate of judgment has been issued, this court’s judgment in Poole is not final. The trial court lacked jurisdiction to enter the September 24, 2015, and January 6, 2016, orders, and those orders, therefore, are void. A void judgment will not support an appeal. Vann v. Cook, 989 So.2d 556, 559 (Ala.Civ.App.2008). Accordingly, we dismiss the husband’s appeal.

The husband’s request for an award of attorney’s fees on appeal is denied.

APPEAL DISMISSED.

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

      . Rule 39(f) reads:
      "Issuance of Writ of Certiorari. If the Supreme Court, upon preliminary consideration, concludes that there is a probability of merit in the petition and that the writ should issue, the Court shall so order, and official notice, in the form of a writ of certiorari, shall be given by the Supreme Court clerk to the parties or their counsel and to the clerk of the appropriate court of appeals. The writ is the official directive of the Supreme Court to the appeals court to deliver the record in the case to the Supreme Court for review. The record and one copy of the briefs and appendices, if any, shall be transmitted to the clerk of the Supreme Court. The order may also include a directive that the parties address only a particular issue or issues in their brief. The case shall stand for submission as herein provided.”


text:
    Michael NISSENBAUM, as guardian ad litem for E.A., a minor v. G.C.
    2150348.
    Court of Civil Appeals of Alabama.
    June 10, 2016.

      Michael Nissenbaum, Legal Aid Society of Birmingham, Birmingham, guardian ad litem, for appellant.
    Roger C. Appell, Birmingham, for appel-lee.
   THOMAS, Judge.

In 2007, the State of Alabama instituted a paternity action in the Jefferson Juvenile Court (“the juvenile court”) seeking an order determining G.C. (“the alleged father”) to be the father of E.A. (“the child”) and an order requiring the alleged father to pay child support. The State had difficulty locating the alleged father to effect service of process, but, on September 5, 2009, a process server certified that she had served the complaint on the alleged father at an address in Birmingham. The alleged father did not answer or otherwise appear in the action. The juvenile court entered a default judgment in May 2010 declaring the alleged father to be the father of the child and ordering that he pay $591 per month in child support.

In September 2013 and again in October 2014, the alleged father filed motions pursuant to Rule 60(b)(4), Ala. R. Civ. P., in which he sought to have the default judgment set aside as void. In his motions, and in his affidavits submitted in support of those motions, the alleged father stated that he had never lived at the address at which he had allegedly been served, that he had been living in Atlanta, Georgia, at the time he had purportedly been served with the complaint, and .that he had not had notice that a paternity and child-support action had been instituted against him. Thus, the alleged father argued, the May 2010 default judgment was void and should be set aside. See Wright v. Rogers, 435 So.2d 90, 91 (Ala.Civ.App.1983) (“Failure of personal service of original process upon a defendant renders a judgment by default void.”). On July 27, 2015, after a hearing on the matter, the juvenile court rendered an order setting aside the default judgment, ordering the alleged father and the child to undergo DNA testing, and setting the case for further proceedings in February 2016; the order was entered into the State Judicial Information System on August 5, 2015.

On August 7, 2015, the guardian ad li-tem for the child, Michael Nissenbaum, filed what he labeled as a motion to alter, amend, or vacate the juvenile court’s order granting the alleged father relief pursuant to Rule 60(b)(4). In his motion, the guardian ad litem complained that the juvenile court had not heard competent evidence supporting the order setting aside the default judgment. The juvenile court did not rule on the motion, and, on September 2, 2015, the guardian ad litem filed a notice of appeal.

We cannot consider the merits of the appeal, however, because the guardian ad litem chose the wrong vehicle to seek review of the juvenile court’s August 5, 2015, order granting the alleged father relief pursuant to Rule 60(b)(4).

“Generally, an order granting a Rule 60(b) motion for relief from a judgment is not appealable. R.E. Grills, Inc. v. Davison, 641 So.2d 225, 227 (Ala.1994). Such an order is interlocutory because further proceedings are contemplated in the trial court. Damson, 641 So.2d at 227-28. Typically, an appeal to this court lies only from a final judgment. Ala.Code 1975, § 12-22-2; see also Ex parte Norwood, 615 So.2d 1210, 1212 (Ala.Civ.App.1992). Review of interlocutory orders, such as an order granting a Rule 60(b) motion, is achieved not by appeal, but by petition for the writ of mandamus. Davison, 641 So.2d at 228.”

Roark v. Bell, 716 So.2d 1245, 1247 (Ala.Civ.App.1998). Only in rare instances, when the order granting a Rule 60(b) motion leaves no other proceedings to be had in the trial court, will an appeal lie from the grant of a Rule 60(b) motion. See Harris v. Cook, 944 So.2d 977, 980 n. 1 (Ala.Civ.App.2006). As noted above, the juvenile court’s August 5, 2015, order set aside the default judgment establishing the alleged father’s paternity of the child, ordered the alleged father and the child to submit to DNA testing, and set the matter for further proceedings. Thus, because the August 5, 2016, order granting the alleged father relief pursuant to Rule 60(b)(4) contemplated further proceedings in the juvenile court, that order is not a final judgment capable of supporting an appeal. See Johnson v. Johnson, 703 So.2d 1001, 1002 (Ala.Civ.App.1997).

Although, in certain circumstances, we would consider treating the guardian ad litem’s appeal as a petition for the writ of mandamus, see Roark, 716 So.2d at 1247, we cannot do so here. The notice of appeal was filed 28 days after the entry of the August 5, 2015, order. The presumptively reasonable time for filing a petition for the writ of mandamus in a juvenile case is 14 days from the entry of the interlocutory order forming the basis of the petition. See Rule 21, Ala. R.App. P.; see also Ex parte C.J.A., 12 So.3d 1214, 1216 (Ala.Civ.App.2009). The guardian ad litem’s filing of what he considered to be a postjudgment motion did not toll the time for filing a petition for the writ of mandamus. See Ex parte Onyx Waste Servs. of Florida, 979 So.2d 833, 834 (Ala.Civ.App.2007) (“[Ujnlike a postjudgment motion following a final judgment, a motion to reconsider an interlocutory order does not toll the presumptively reasonable time period that a party has to petition an appellate court for a writ of mandamus.”). Thus, if we were to treat the guardian ad litem’s notice of appeal as a petition for the writ of mandamus, the petition would have been filed outside the presumptively reasonable time for filing a petition, and we would be required to dismiss it. See S.W. v. Jefferson Cty. Dep’t of Human Res., 113 So.3d 657, 659 n. 1 (Ala.Civ.App.2012). Accordingly, we decline to treat the guardian ad litem’s notice of appeal as a petition for the writ of mandamus, and, instead, we dismiss the appeal. S.W., 113 So.3d at 659.

APPEAL DISMISSED.

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

      . The juvenile court did not rule on the September 2013 motion, and we presume that the October 2014 motion, which restated the same grounds as those asserted in the September 2013 motion, was in the nature of an amended motion intended to prompt action on the matter.


author: JOINER, Judge.

text:
    Dwayne Anthony COLLIER, Sr. v. STATE of Alabama.
    CR-13-1937.
    Court of Criminal Appeals of Alabama.
    Oct. 2, 2015.
    James M. Byrd, Mobile, for appellant.

      Luther Strange, atty. gen., and J. Thomas Leverette, asst. atty. gen., for appellee.
   On Application for Rehearing

JOINER, Judge.

This Court’s opinion issued on April 17, 2015, is withdrawn, and the following opinion is substituted therefor. Dwayne Anthony Collier, Sr. (“Dwayne”), was convicted of first-degree hindering prosecution, see § 13A-10-43, Ala.Code 1975. Dwayne was sentenced to 10 years’ imprisonment; that sentence was split, and he was ordered to serve one year and one day imprisonment followed by three years’ probation. Dwayne was ordered to pay a $50 crime-victims-compensation assessment and court costs. We reverse the conviction and render a judgment of acquittal for Dwayne.

Facts and Procedural History

Dwayne’s conviction was based on his allegedly rendering criminal assistance to his son, Dwayne Anthony Collier, Jr. (“Anthony”), after the murder of Edward Dickinson. The indictment against Dwayne reads as follows:

“The Grand Jury of said County charge, that, before the finding of this indictment, Dwayne Anthony Collier, Sr., whose name is to the Grand Jury otherwise unknown than as stated, did, with the intent to hinder the apprehension, prosecution, conviction, or punishment of Dwayne [Anthony] Collier, Jr., for an offense constituting a Class A or B felony, to-wit: murder, in rendering criminal assistance by concealing the shotgun used to kill Edward Dickinson and/or falsely reporting to law enforcement that he shot Edward Dickinson, in violation of § 13A-10-43 of the Code of Alabama.”

(C. 18.)

Dwayne, Dickinson, and David Johnston lived in separate mobile homes in a mobile-home park on Bellingrath Gardens Road in Mobile County. At trial, Johnston testified that, around 9:30 P.M. on June 2, 2012, he and Dwayne were inside Johnston’s mobile home when they heard Anthony arguing loudly with Dickinson. Johnston testified that he and Dwayne listened to them argue “for a minute or two” before Dwayne suggested that they “check on this and see what is going on.” (R. 41.) Johnston stated that, when he got to his door, he saw Anthony standing outside the front door to Dickinson’s mobile home, and he knew Dickinson was sitting on his couch inside his mobile home because he could see Dickinson’s legs. Johnston testified that Dwayne suddenly began running toward Anthony, but, before Dwayne could reach him, Anthony fired two gunshots into Dickinson’s mobile home. Johnston stated that Dwayne grabbed the gun, which fired again, this time into the air. Johnston testified that he telephoned emergency 911 and told Dwayne to calm Anthony down. Johnston testified:

“A. And [Anthony] was going ballistic and Dwayne runs back over and says, What do you want me to do with the gun?’ I said, ‘Just throw it down on the ground, put it up against a tree, do whatever you want to do with it because I have got [911] on the phone, they are coming.’
“Q, What about the gun? You said he brought the gun to you initially and you told him to just throw it down or whatever?
“A. Yeah. At first he put it in the back of my truck and I didn’t know it was in there until I looked in the back of my truck. I am like, ‘"Whoa, whoa, whoa, Dwayne, get that’—Then [Anthony’s] mama come out there. I said, You have got to get that thing out of my truck.’ He finally—Anthony was over there screaming, his head is busted open, he is carrying on. Dwayne was going to put it over there. I said, Tut it up against a tree.’ I said, ‘I don’t care what you do with it, just get away from me. Throw it out in the woods or whatever,’ I said, ‘The police are on their way, they are going to find it.’
“Q. Did you see what he did after he took it out of your truck?
“A, No, I didn’t. I thought he had put it back in the trailer like he should have did.
“Q. Back in his trailer, you mean?
“A. No, no, just throwed [sic] it down by the back of Bill’s trailer, you know.”

(R. 46-49.) Johnston testified that Dwayne then “jumped on top of [Anthony] and held him down until the police cars were pulling up.” (R. 48.)

Deputy Troy Fisher of the Mobile County Sheriffs Department testified that he responded to the scene of the incident and that, when he arrived, Dwayne was restraining Anthony. Deputy Fisher stated that Dwayne was thereafter “secured in a patrol car” and that Anthony was secured in an ambulance “[d]ue to the laceration on his head.” (R. 87.)

Deputy Johnny Thornton of the Mobile County Sheriffs Department testified that he was dispatched to the Mobile Infirmary West hospital “to check on the condition of [Dickinson.]” (R. 94.) Dickinson eventually died as a result of a gunshot wound to his chest. Deputy Thornton testified that, the following morning, he met Cpl. Bailey of the Mobile County Sheriffs Department at the scene of the incident, and they “canvassed the area because [they] understood the weapon was in the woods.” (R. 96.) Deputy Thornton stated that he discovered the gun in a wooded area approximately 300 feet from the crime scene and that Cpl. Bailey first photographed and then collected the gun.

State’s Exhibit 73—a disk containing seven audio-recorded statements Dwayne made to law enforcement—was played for the jury. Dwayne’s first three statements were recorded at the crime scene. In those statements, Dwayne described the gun used to shoot Dickinson and admitted to throwing that gun in the wooded area behind the mobile-home park. Dwayne also maintained that he was the shooter and that he fired the gun once or possibly twice but that he had not intended to kill Dickinson. Dwayne stated that Dickinson and Anthony had been arguing and throwing “concrete bricks” at each other and that Anthony’s face had been badly injured and was bleeding profusely.

Dwayne’s fourth and fifth statements were made while he was in the custody of law enforcement, and Dwayne reiterated that he had fired the gun but had not intended to shoot Dickinson. Dwayne stated that he “threw the gun up and aimed at the side” of Dickinson’s mobile home and that he later “tossed [the gun] in the woods.” (State’s Exhibit 73, Track 4.) Dwayne also stated that Anthony never fired the gun that night. In Dwayne’s sixth statement, he maintained that he did not “remember exactly what happened” and requested an attorney. (State’s Exhibit 73, Track 6.) Detectives discontinued the interview after Dwayne requested counsel.

In Dwayne’s seventh and final statement, he admitted that he had not been completely honest in his prior statements. Dwayne stated that, after Anthony and Dickinson began arguing and throwing “bricks” at one another, Dwayne went to his mobile home to retrieve his gun. Dwayne said that he had intended to fire the gun into the air to “get everyone’s attention” and to break up the fight. (State’s Exhibit 73, Track 7.) Dwayne stated that, when he went to retrieve the gun from the location where he normally kept it in the mobile home, the gun was not there. Dwayne stated that he then returned to Dickinson’s mobile home and that Anthony was holding the gun. Dwayne stated that he attempted to take the gun away from Anthony and that Anthony fell backwards. Dwayne stated that the gun fired twice into the air and that Anthony fired the gun once more from the ground. Dwayne stated that he was unaware of exactly who took the gun from his mobile home or how Anthony came to possess it. Dwayne confirmed that he did toss the gun into the woods.

Dwayne moved for a judgment of acquittal at the close of the State’s case and renewed his motion after the defense rested. The trial court denied his motion. After the jury returned a guilty verdict and the trial court adjudicated him guilty of first-degree hindering prosecution, Dwayne filed a written motion for judgment of acquittal pursuant to Rule 20.3, Ala. R.Crim. P., in which he claimed that “[t]he evidence in this case does not support, establish, or prove criminal assistance as defined by law.” (C. 43.) The trial court denied his motion.

Standard of Review

“[Dwaynej’s case involves only an issue of law and the application of the law to undisputed facts. Therefore, our review is de novo. Ex parte Walker, 928 So.2d 259, 262 (Ala.2005).” Yearby v. State, 95 So.3d 20, 22 (Ala.Crim.App.2012).

Discussion

On appeal, Dwayne contends that neither “concealing the shotgun used to kill Edward Dickinson [nor] falsely reporting to law enforcement that he shot Edward Dickinson is providing criminal assistance” (Dwayne’s brief, p. 8) as that term is defined in § 13A-10-42, Ala.Code 1975, and as is required for a first-degree hindering-prosecution conviction pursuant to § 13A-10-43. Specifically, Dwayne claims that his actions did not amount to criminal assistance because, he says, the language of §§ 13A-10-42(4) and (5), Ala.Code 1975, “relates to an act that hinders discovery of the location of the perpetrator, not an act that hinders the discovery of who the perpetrator is” and that “[t]he term ‘discovery of such person’ means to find or locate the person; it does not mean to identify who the person is.” (Dwayne’s brief, p. 11.)

Dwayne was indicted and tried under § 13A-10-43(a), Ala.Code 1975, which provides: “A person commits the crime of hindering prosecution in the first degree if with the intent to hinder the apprehension, prosecution, conviction or punishment of another for conduct constituting a murder or a Class A or B felony, he renders criminal assistance to such person.” Section 13A-10-42 provides:

“For the purposes of Sections 13A-10-43 through 13A-10-45, a person renders ‘criminal assistance’ to another if he:
“(1) Harbors or conceals such person;
“(2) Warns such person of impending discovery or apprehension; except that this subdivision does not apply to a warning given in connection with an effort to bring another into compliance with the law;
“(3) Provides such person with money, transportation, weapon, disguise or other means of avoiding discovery or apprehension;
“(4) Prevents or obstructs, by means of force, deception or intimidation, anyone except a trespasser from performing an act that might aid in the discovery or apprehension of such person;
“(5) Suppresses, by an act of concealment, alteration or destruction, any physical evidence that might aid in the discovery or apprehension of such person.”

The parties do not dispute: (1) that Dwayne falsely told police that he shot Dickinson; (2) that Dwayne took the shotgun used to shoot Dickinson and .put it in the woods near the scene; and (3) that Anthony was apprehended by police after Dwayne had.put the shotgun in the woods but before Dwayne made the false statements to police. Thus, the issue before this Court is whether the term “discovery” as used in the definition of “criminal assistance” at § 13A-10-42, Ala.Code 1975, is limited to the discovery of the physical location of “such person” or whether it includes learning information that “such person” was involved in a crime. Therefore, we must determine the meaning of the phrase “discovery ... of such person” as it is used in § 13A-KM2, Ala.Code 1975.

The legislature does not define the phrase “discovery ... of such person” within Chapter 10 of Title 13, Ala.Code 1975.

“There are, however, rules of statutory construction that guide this Court’s interpretation of a statute. In Archer v. Estate of Archer, 45 So.3d 1259, 1263 (Ala.2010), [the Alabama Supreme] Court described its responsibilities when construing a statute:
“ ‘ “ ‘[I]t is this Court’s responsibility in a case involving statutory construction to give effect to the legislature’s intent in enacting a statute when that intent is manifested in the wording of the statute.... “ ‘ “ ‘[I]f the language of the statute is unambiguous, then there is no room for judicial construction and the clearly expressed intent of the legislature must be given effect.’ ” ’” ... In determining the intent of the legislature, we must examine the statute as a whole and, if possible, give effect to each section.’
“Ex parte Exxon Mobil Corp., 926 So.2d 303, 309 (Ala.2005). Further,
“ ‘ “ “when determining legislative intent from the language used in a statute, a court may explain the language, but it may not detract from or add to the statute.... When the language is clear, there is no room for judicial construction.... ’
“ ‘ “Water Works & Sewer Bd. Of Selma v. Randolph, 833 So.2d 604, 607 (Ala.2002).” ’
“(Quoting Ex parte Birmingham Bd. of Educ., 45 So.3d 764, 767 (Ala.2009).) Similarly, in Lambert v. Wilcox County Commission, 623 So.2d 727, 729 (Ala. 1993), the Court stated:
“ ‘ “The fundamental rule of statutory construction is that this Court is to ascertain and effectuate the legislative intent as expressed in the statute.... In this ascertainment, we must look to the entire Act instead of isolated phrases or clauses ... and words are given their plain and usual meaning. ... Moreover, just as statutes dealing with the same subject are in pan materia and should be construed together, ... parts of the same statute are in pari materia and each part is entitled to equal weight.” ’
“(Quoting Darks Dairy, Inc. v. Alabama Dairy Comm’n, 367 So.2d 1378, 1380-81 (Ala.1979).)”

First Union Nat’l Bank of Florida v. Lee County Comm’n, 75 So.3d 105, 111-12 (Ala.2011).

““ “[Cjriminal statutes must be strictly construed, to avoid ensnaring behavior that is not clearly proscribed.” ’ United States v. Bridges, 493 F.2d 918, 922 (5th Cir.1974).
“ ‘ “ ‘In United States v. Boston & M. RR Co., 380 U.S. 157, 85 S.Ct. 868, 870, 13 L.Ed.2d 728 (1965), the Supreme Court stated:
“ ““ “A criminal statute is to be construed strictly, not loosely. Such are the teachings of our cases from United States v. Wiltberger, 5 Wheat. 76, 5 L.Ed. 37 [(1820)], down to this day. Chief Justice Marshall said in that case:
“ ““ “ ‘The rule that penal laws are to be construed strictly, is, perhaps, not much less old than construction itself. It is founded on the tenderness of the law for the rights of individuals; and on the plain principle that the power of punishment is vested in the legislative, not in the judicial department.’ Id., p. 95.
“ ““ “The fact that a particular activity may be within the same general classification and policy of those covered does not necessarily bring it within the ambit of the criminal prohibition. United States v. Weitzel, 246 U.S. 533, 38 S.Ct. 381, 62 L.Ed. 872 [ (1918) ].”
“ ‘ “ ‘Moreover, “one ‘is not to be subjected to a penalty unless the words of the statute plainly impose it[.]’ Keppel v. Tiffin Savings Bank, 197 U.S. 356, 362, 25 S.Ct. 443, 49 L.Ed. 790 [ (1905) ]. ‘[W]hen choice has to be made between two readings of what conduct Congress has made a crime, it is appropriate, before we choose the harsher alternative, to require that Congress should have spoken in language that is clear and definite.’ United States v. Universal C.I.T. Credit Corp., 344 U.S. 218, 221-222, 73 S.Ct. 227, 229-230, 97 L.Ed. 260 [(1952)].” United States v. Campos-Serrano, 404 U.S. 293, 297, 92 S.Ct. 471, 474, 30 L.Ed.2d 457 (1971).’
“ ‘ “Bridges, 493 F.2d at 923.” ’
“Crawford v. State, 100 So.3d 610, 615 (Ala.Crim.App.2011).”

J.D.I. v. State, 77 So.3d 610, 616 (Ala.Crim.App.2011).

“ ‘ “[A]mbiguous criminal statutes must be narrowly interpreted, in favor of the accused.” United States v. Herring, 933 F.2d 932, 937 (11th Cir.1991). “[I]t is well established that criminal statutes should not be ‘extended by construction.’ ” Ex parte Evers, 434 So.2d 813, 817 (Ala.1983)....”’ D.A.D.O. v. State, 57 So.3d 798, 802 (Ala.Crim.App.2009) (quoting Carroll v. State, 599 So.2d 1253, 1264 (Ala.Crim.App.1992), aff'd, 627 So.2d 874 (Ala.1993)). “ ‘ “No person is to be made subject to penal statutes by implication and all doubts concerning their interpretation are to predominate in favor of the accused. Fuller v. State, [257 Ala. 502, 60 So.2d 202 (1952)].’”” D.A.D.O., 57 So.3d at 803 (quoting Hankins v. State, 989 So.2d 610, 618 (Ala.Crim.App.2007)).

As noted above, Dwayne’s argument suggests that the word “discovery,” as used in the definition of “criminal assistance,” should be construed in the narrow sense of discovering Anthony—i.e., locating Anthony—rather than in a broader sense that would include discovering the fact that Anthony was involved in a crime.

In Ex parte Burton, 783 So.2d 887, 891 (Ala.2000), the Alabama Supreme Court addressed the issue of rendering criminal assistance under § 13A-10-42(4). The Court reversed Angela Burton’s fírst-de-gree-hindering-prosecution conviction and rendered a judgment of acquittal.

“Burton’s conviction was based on her allegedly rendering criminal assistance to her sister, Felicia Scott, and her sister’s boyfriend, Frederic Polion, following the murder of Carethia Curry. Curry was nine months pregnant when she was shot twice in the head after having her stomach cut open and her baby taken out. Burton’s indictment read as follows:
“‘The Grand Jury of said County charge that before the finding of this Indictment, ANGELA BURTON, whose name is otherwise unknown to the Grand Jury, did render criminal assistance to Felicia Scott ... and/or Frederic Polion ... by intentionally hindering the apprehension, prosecution, conviction, or punishment of Felicia Scott ... and/or Frederic Polion ... for conduct constituting a Murder or a Class A or B felony, to wit: Murder, in that said defendant did prevent or obstruct, by means of deception, law enforcement officers and investigators, and/or the Tuscaloosa County, Alabama, Grand Jury, investigating the disappearance of Carethia Curry, from performing an act that might aid in the discovery or apprehension of the said Felicia Scott ... and/or Frederic Polion ... to wit: locating the body of Carethia Curry, in violation of Section 13A-10-43 of the Code of Alabama.’ ”

783 So.2d at 889-90 (footnotes omitted). Burton was charged with first-degree hindering prosecution after making false statements to police.

“ ‘Burton lied to police on February 10, 1996, about placing telephone calls to hospitals in the early morning of February searching for Scott. Her telephone records showed that these calls were not made. She also stated that Polion had telephoned her several times from his and Scott’s home during the very early morning hours of February 1, 1996, searching for Scott and wanting Burton to find out if Scott was at the hospital. The last of these calls was allegedly at 4:48 a.m. Telephone records did not show that any calls were placed from Polion’s home to Burton at that time.’ ”

783 So.2d at 892. The Court held that Burton’s false statements were insufficient to sustain her conviction and stated:

“[T]he indictment charged that Burton hindered prosecution by preventing investigators from performing an act— specifically, locating Curry’s body—that might have aided in the discovery and apprehension of Scott and Polion.... Burton’s falsehoods regarding the telephone calls between her and Polion could not have prevented investigators from discovering Scott and Polion, because these statements were made after Scott and Polion had been apprehended on February 8, 1996, in Gwinnett County, Georgia. Thus, under the indictment, the purpose of locating Curry’s body was to aid in discovering and apprehending Scott and Polion.”

783 So.2d at 892. The Court further stated that Burton “could be found guilty on hindering prosecution only if she was found to have prevented investigators from ‘performing an act that might aid in the discovery or apprehension’ of Scott and Polion. Once Scott and Polion were apprehended, Burton could not have prevented investigators from discovering or apprehending them.” Id.

The State cites Nichols v. State, 500 So.2d 92 (Ala.Crim.App.1986), for the proposition that making false statements to police constitutes rendering criminal assistance for the purposes of a first-degree-hindering-prosecution conviction. The facts of the Nichols case are limited to the following:

“[T]he appellant with intent, knowingly, willingly or consciously hindered the apprehension, prosecution, conviction, or punishment of Randy Johnson for the offense of rape in the first degree. It is clear from the testimony at the trial that [Nichols] knowingly, willingly, and consciously lied to the criminal investigators concerning the circumstances of the rape. [Nichols] alleges that he did so not with the intent to hinder prosecution, but because he was scared.”

500 So.2d at 95. Nichols does not state exactly what happened—for example, it is unclear whether Nichols lied to investigators before or after Johnson was apprehended. Moreover, Nichols speaks specifically to the element of the intent to hinder prosecution and not to the discovery of the principal actor. In any event, Burton, supra, decided 14 years after Nichols, rejects the notion that merely making false statements to police after the apprehension of the principal supports a conviction for first-degree hindering prosecution.

Other states have interpreted their hindering-prosecution statutes in a manner consistent with Burton. Oregon’s hindering-prosecution statute is nearly identical to Alabama’s; the Oregon statute provides:

“A person commits the crime of hindering prosecution if, with the intent to hinder the apprehension, prosecution, conviction or punishment of a person who has committed a crime punishable as a felony, or with the intent to assist a person who has committed a crime punishable as a felony in profiting or bene-fitting from the commission of the crime, the person:
“(a) Harbors or conceals such person; or
“(b) Warns such person of impending discovery or apprehension; or “(c) Provides or aids in providing such person with money, transportation, weapon, disguise or other means of avoiding discovery or apprehension; or
“(d) Prevents or obstructs, by means of force, intimidation or deception, anyone from performing an act which might aid in the discovery or apprehension of such person; or
“(e) Suppresses by an act of concealment, alteration or destruction physical evidence which might aid in the discovery or apprehension of such person; or
“(f) Aids such person in securing or protecting the proceeds of the crime.”

Or.Rev.Stat. § 162.325(1).

In State v. Werdell, 340 Or. 590, 136 P.3d 17 (2006), a case with facts similar to the instant case, the Oregon Supreme Court held that a defendant’s actions did not constitute hindering prosecution because, at the time the action was taken, the principal actor was in custody and, therefore, the defendant lacked the requisite intent to prevent the discovery or apprehension of the principal. Setting out the facts in the light most favorable to the State, the court stated:

“[Werdell]’s adopted adult son, Everts, who has a felony record, a history of alcohol and substance abuse, and a history of brandishing weapons, was involved in a boating accident in October 2000 off the Southern Oregon coast. A friend of Everts died in the accident. Everts was operating the boat; he had been drinking at the time. When he had recovered sufficiently from the injuries that he suffered in the accident, he was lodged in the Curry County Jail for violating his probation by drinking alcohol. Eventually, he was charged with negligent homicide in Curry County.
“A day or two after the accident, Everts’s girlfriend, Hagen, went to the campsite in Curry County where Everts had been camping at the time of the accident to collect Everts’s truck and his other belongings. While doing so, she discovered a gun in a cooler that belonged to Everts. Everts was a convicted felon and, as such, was not permitted to possess a gun. Hagen also discovered a partially consumed bottle of tequila. She brought everything to her home in Medford (Jackson County) and called [Werdell], who also lives in Medford. [Werdell] went to Hagen’s home and retrieved the gun and the bottle of tequila. He disposed of the bottle in the trash. He took the gun to Applegate Lake in Jackson County and tossed it into the water.
“Some time later, after Everts had been released from jail for the probation violation (but before his conviction on the negligent homicide charge), Everts assaulted Hagen. She called the police and lodged a complaint against him. Soon thereafter, Hagen told a domestic violence counselor that charges were pending against Everts in Curry County. The counselor advised her to notify the Curry County District Attorney about the assault. A Curry County police officer then called Hagen to interview her in connection with the assault complaint and, during that interview, Hagen mentioned the fact that Everts had had the tequila and the gun in his possession at the time of the boating accident. She also told the police of [Werdell]’s involvement in disposing of those items.
“The police arrested [Werdell] on the charge of hindering prosecution. [Wer-dell] testified fully before a Curry County grand jury, which indicted him for that crime.... Before trial, [Werdell] demurred to the indictment on [the] ground[ ] ... that ORS 162.325 does not apply to his conduct because the disposal of the gun ... in no way impeded the state’s ability to discover or apprehend Everts, particularly in light of the fact that Everts was in custody at the time that [Werdell] acted....
“... [Werdell] appealed his conviction to the Court of Appeals, which affirmed. The Court of Appeals agreed with the trial court that the hindering prosecution statute, ORS 162.325, applies to the destruction of evidence that might lead the police to discover that a crime had been committed.”

Werdell, 340 Or. at 592-93,136 P.3d at 18-19. Werdell petitioned the Oregon Supreme Court to review the Oregon Court of Appeals’ judgment based on its conclusions (1) that ORS 162.325 “‘focuses on the suppression of evidence that might link a person with the commission of a particular crime, not with merely identifying and arresting the person, without regard to the reason.’ [State v. Werdell, 202 Or.App. 413, 419, 122 P.3d at 86, 89 (2005) ],” and (2) that “the fact that a person is in custody on an unrelated matter is irrelevant.” 340 Or. at 595,136 P.3d at 19.

The Oregon Supreme Court granted Werdell’s petition and concluded that the Court of Appeals incorrectly interpreted the word “discovery” in the statute to mean “learning something unknown.” 340 Or. at 595, 136 P.3d at 20. The Court stated:

“[t]he plain words of the statute ... mean that the true issue is whether defendant suppressed evidence that ‘might aid in the discovery or apprehension of such person,’ that is, ‘a person who has committed a crime punishable as a felony.’ The issue is not whether defendant suppressed evidence that might have aided in the discovery of the fact that such a person had committed a crime.”

340 Or. at 595, 136 P.3d at 20. “The ‘discovery with which [Or.Rev.Stat. 162.325(l)(e) ] is concerned is the discovery of a particular ‘person who has committed a crime punishable as a felony.’ Those words will not stretch to cover the ‘discovery ... that a known person has committed a crime punishable as a felony.’ ” 340 Or. at 597,136 P.3d at 20.

The court further concluded that subsections (a)-(e) of Or.Rev.Stat. 162.325(1) “plainly are directed at conduct that would tend to make it more difficult to discover the location of a known perpetrator and to place that person in custody.” 340 Or. at 596,136 P.3d at 20. The Court stated that subsections (a) through (e) of Or.Rev.Stat. 162.325(1)

“are concerned with the same thing, viz., locating or apprehending a felon. Not one of the other four paragraphs of subsection (1)—(a) to (d)—even arguably is about discovery of a crime. Applying the familiar principle of ejusdem gener-is, we conclude from its similar focus and wording that paragraph (e) is similarly limited in scope. See, e.g., Dear-born v. Real Estate Agency, 334 Or. 493, 500-01, 53 P.3d 436 (2002) (illustrating application of principle to limit scope of one statutory subsection in light of limited scope of other subsections).”

340 Or. at 597,136 P.3d at 21.

The Missouri Court of Appeals interpreted a similar hindering-prosecution statute in State v. McMasters, 815 S.W.2d 116 (Mo.Ct.App.1991). In that case, McMasters had been convicted under a statute that provided:

“A person commits the crime of hindering prosecution if for the purpose of preventing the apprehension, prosecution, conviction or punishment of another for conduct constituting a crime he ... [prevents or obstructs, by mean of force, deception or intimidation, anyone from performing an act that might aid in the discovery or apprehension of such person.”

McMasters was charged with violating that statute for falsely telling police that his cousin, Cowart—who had been convicted for selling marijuana and had failed to turn himself in to the sheriffs office—was not hiding inside McMaster’s house to avoid being captured by law enforcement. Shortly after McMasters made that statement, Cowart was apprehended as he left McMasters’s house.

The Court of Appeals found that, in order to be convicted under that particular statute, “[t]he deception must prevent or obstruct the police from performing an act in aiding in the discovery or apprehension of’ the person who committed the underlying crime and that “[i]n the absence of evidence of prevention or obstruction of some act [that might aid in the discovery or apprehension of such person] there is no violation ... of the statute,” 815 S.W.2d at 118. Based on its conclusion that “there was no evidence that the police were prevented or obstructed from doing anything by [McMasters]’s lie,” the Court reversed McMasters’s conviction. Id.

There is seemingly contrary authority from Arkansas, which holds that a defendant may be convicted of hindering prosecution even though his actions occur after the principal has been placed in custody; as discussed below, however, the statutory language at issue in the Arkansas case differs from the relevant language at issue here and in the cases we have discussed above. In Puckett v. State, 328 Ark. 355, 944 S.W.2d 111 (1997), Puckett was convicted of hindering apprehension or prosecution because he hid the firearm used in a murder and an attempted murder and because he removed fingerprints from that firearm. Puckett claimed that “his actions took place after Calvin [Adams, the suspect,] had already been apprehended, identified, and had confessed to the crimes. Consequently, he contended] the language in provision (a)(4) precluded] its applicability to the facts in [his] case.” Puckett, 328 Ark. at 358, 944 S.W.2d at 113.

Arkansas’s hindering-apprehension or prosecution statute, at issue in that case, provided:

“(a) A person commits an offense under this section if, with purpose to hinder the apprehension, prosecution, conviction or punishment of another for an offense, he:
“(1) Harbors or conceals such person; or
“(2) Provides or aids in providing the person with a weapon, money, transportation, disguise, or other means of avoiding apprehension, discovery, or effecting escape; or
“(3) Prevents or obstructs anyone from performing an act which might aid in the discovery, apprehension, or identification of the person by means of force, intimidation, or the threat of such, or by means of deception; or
“(4) Conceals, alters, destroys, or otherwise suppresses the discovery of any fact, information, or other thing related to the crime which might aid in the discovexy, apprehension, or identification of the person; or
“(5) Warns the person of impending discovery, apprehension, or identification; or
“(6) Volunteers false information to a law enforcement officer.”

(Emphasis added.) The Arkansas Supreme Court held that, pursuant to sub-paragraph (a)(4) of the statute, the “State showed that, with purpose, [Puckett] hindered the prosecution, conviction, or punishment of Calvin Adams by suppressing evidence that might have aided the State in identifying Calvin Adams as having committed the ... crimes.” 328 Ark. at 358, 944 S.W.2d at 113. The Court found that Puckett’s actions were prohibited by the statute, regardless of the fact that Adams was in custody at the time Puckett acted. Id.

Although the holding in Puckett appears contrary to the holdings of Burton, supra, Werdell, supra, and McMasters, supra, the language of Arkansas’s hindering-prosecution statute and how that language has been construed differ significantly from Alabama’s, Oregon’s, and Missouri’s comparable statutes. First, Arkansas’s statute includes the phrase “identification of the person.” Black’s Law Dictionary defines “identify” as “[t]o prove the identity of (a person or thing).” Black’s Law Dictionary 862 (10th ed.2014). Because in the subsections at issue in the statute, a person may be discovered, apprehended, and/or identified, it is logical to conclude that the definition of “discovery” in these subparagraphs is limited to physically locating the person and that the word “identification” is included to cover the learning of new information about “such person” that will connect him to the crime(s) he has committed.

Moreover, the language of subsections (a)(1) and (a)(2) in the Arkansas statute deal with physical acts only and do not include the word “identification.” Subsection (1) speaks only to harboring or concealing a person, which are purely physical acts. Subsection (2) speaks to providing a person with “means of avoiding apprehension, discovery, or affecting escape,” which—with the exception of the word in question, “discovery”—when used in this context, are also purely physical acts. Black’s Law Dictionary defines “apprehension” as “[s]eizure in the name of the law; arrest.” Black’s Law Dictionary 122 (10th ed.2014.) Black’s defines “escape” as: (1) “The act or an instance of breaking free from confinement, restraint, or an obligation”; and (2) “An unlawful departure from legal custody without the use of force.” Black’s Law Dictionary 661.

In addition, the Arkansas statute includes a separate subsection that prohibits the act of providing false information to law enforcement in the crime of hindering apprehension or prosecution. Looking at the plain language of the statute and construing each subparagraph together and giving each equal weight, we reach the logical conclusion that Arkansas’s legislature intended to specifically include the act of lying to police as a separate and equally significant element of its hindering-apprehension or prosecution statute.

Neither Alabama’s nor Oregon’s nor Missouri’s hindering-prosecution statute includes the word “identification,” nor do they include a subsection specifically setting out making false statements as an element of hindering prosecution. Because Arkansas’s statute is sufficiently distinct from the other hindering-prosecution statutes underlying the decisions discussed in this opinion, the Puckett decision is not persuasive here.

Turning ■ directly to the language of § 13A-10-42, Ala.Code 1975, we first examine the word “discovery.” Black’s Law Dictionary defines “discovery” as the “act or process of finding or learning something that was previously unknown.” Black’s Law Dictionary 564. Merriam-Webster’s Collegiate Dictionary defines “discovery” as “the act or process of discovering” and, in turn, defines “discover” as “to make known or visible” and “to obtain sight or knowledge of for the first time.” Merriam-Webster’s Collegiate Dictionary 331 (11th ed.2003). “Discovery,” therefore, may be described as learning any previously unknown information. What Dwayne argues—and what Burton, supra, and most of the above-cited cases suggest—is that “discovery” in the definition of “criminal assistance” is limited to learning previously unknown information about the physical location of a person, place, or object previously not seen. In other words, Dwayne argues that the word “discovery,” as that word is used in the definition of “criminal assistance,” has a limited, specific meaning. In order to determine the legislature’s intent upon defining “criminal assistance,” we must “look to the statute as a whole and, if possible, give effect to each section.” First Union Nat’l Bank of Florida, 75 So.3d at 111.

The State in its brief on application for rehearing argues that § 13A-10-42 provides “five alternative means of rendering ‘criminal assistance,’ ” and, the State argues, § 13A-10-42(5) “really supports the conviction.” (State’s brief on application for rehearing, p. 11.) As noted above, the issue before this Court is the meaning of phrase “discovery ... of such person” as that phrase is used in § 13A-10-42(4) and (5) to define “criminal assistance” for the purposes of a first-degree-hindering-prosecution conviction. Accordingly, in considering the meaning of the term “discovery ... of such person” in § 13A-10-42(4) and (5), we examine the remaining subsections of § 13A-1CM2, Ala.Code 1975, construing those sections together and giving them equal weight.

The language of subsections (1) through (3) of § 13A-1CM2 focuses on discovering the physical location of a person who has committed a crime. Subsection (1) defines “criminal assistance” as “harboring or concealing a person.” Black’s Law Dictionary defines “harboring” as the “act of affording lodging, shelter, or refuge to a person, esp. a criminal or illegal alien.” Black’s Law Dictionary 831 (emphasis added). Black’s defines “concealment” as: (1) “The act of preventing disclosure or refraining from disclosing; esp., the injurious or intentional suppression or nondisclosure of facts that one is obligated to reveal”; and (2) “The act of removing from sight or notice.” Black’s Law Dictionary 349 (emphasis added). Construing those two words together and giving them equal weight, it is logical to conclude, because the sole definition of “harboring” is concerned with providing a person—especially one who may be hiding from law enforcement—a physical place with which to remain for a time, that the legislature intended to invoke the definition of “conceal” that describes the act of physically hiding a person rather than the definition that pertains to the mere nondisclosure of information. Moreover, this Court has previously construed “conceal” as stated in the definition of “criminal assistance” to describe physically hiding a person who was avoiding detection by law enforcement. See Yearby v. State, 95 So.3d 20 n. 5 (emphasis added) (“Yearby’s attempt to conceal Jonathan in the air duct constitutes ‘criminal assistance’ as that term is used in § 13A-10-43, Ala.Code 1975.”).

Subsection (2) of § 13A-10-43, Aa.Code 1975, defines “criminal assistance” as warning “such person of impending discovery or apprehension.” Black’s defines “warning” as the “pointing out of danger, esp. to one who would otherwise not be aware of it.” Black’s Law Dictionary 1818. Black’s defines “danger” as “[p]eril; exposure to harm, loss, pain, or other negative result.” Black’s Law Dictionary 476. Thus, like subsection (1), subsection (2) focuses on conduct aimed at preventing law enforcement from determining a person’s location.

Subsection (3) of § 13A-10-43, Aa.Code 1975, defines “criminal assistance” as providing “such person with money, transportation, weapon, disguise or other means of avoiding discovery or apprehension.” This subsection prohibits giving a person money, transportation, weapons, or disguises to either alter that person’s location or appearance or otherwise to provide a means of physically avoiding capture by law enforcement. Construing those words together and giving them equal weight, it is logical to conclude that, when applied to the word “discovery,” they refer to the physical discovery of a person and not to the mere learning of previously unknown information about a person already in police custody.

Ater considering Burton, supra, as well as Oregon’s and Missouri’s decisions based upon similar fact patterns and nearly identical statutes, and strictly construing § 13A-10-42 in favor of the defendant, and entitling the subsections of that statute equal weight, we hold that the phrase “discovery ... of such person” as set out in § 13A-10-42 is limited to finding or locating a person and does not include identifying such person as being involved with or connected to the committing of a crime.

Dwayne’s false statements that he, and not Anthony, was the person who shot Dickinson could not, under the circumstances here, have prevented investigators from discovering or apprehending Anthony, because those statements were made after Anthony had been apprehended. The State presented no evidence indicating that Anthony had either not been discovered or apprehended at the time Dwayne made the false statements. On the contrary, the undisputed evidence from two of the State’s witnesses—Johnston and Deputy Fisher—was that Dwayne restrained Anthony until law-enforcement officers arrived at the scene. Similarly, although there was evidence indicating that Dwayne had moved to the woods the gun used to shoot Dickinson, the State presented no evidence that Dwayne’s moving of the gun into the woods hindered or prevented law enforcement from discovering or apprehending Anthony.

In Burton, the Alabama Supreme Court held:

“ ‘A defendant is constitutionally entitled to be informed of the nature and the cause of the accusation against him. The function of the indictment is to inform the accused of the crime with which he is charged, so that he may prepare a defense if one is available. The person accused of a crime is required at trial to answer only the specific charge contained in the indictment.’
“Ex parte Washington, 448 So.2d 404, 407 (Ala.1984) (citations omitted).”

788 So.2d at 892. Dwayne was required to answer only the specific charge contained in the indictment and, thus, could be found guilty of first-degree hindering prosecution only if he was found to have rendered “criminal assistance”—as that term is defined in § 13A-10-42—to Anthony. Under the language of the indictment, and pursuant to §§ 13A-10-42 and 13A-10-43, Dwayne’s culpability could stem only from rendering criminal assistance in a manner that prevented Anthony’s discovery or apprehension. Once Anthony was in custody, Dwayne could not have prevented investigators from discovering or apprehending him. Because Dwayne made his false statements after Anthony was apprehended, and because Dwayne’s moving of the gun into the woods did not prevent the discovery or apprehension of Anthony, the State failed to present a prima facie case of hindering prosecution, as alleged in the indictment, and the trial court should have granted Dwayne’s motion for a judgment of acquittal.

Conclusion

Based on the foregoing, we reverse the judgment of the trial court and render a judgment of acquittal.

APPLICATION FOR REHEARING OVERRULED; OPINION OF APRIL 17, 2015, WITHDRAWN; OPINION SUBSTITUTED; REVERSED AND JUDGMENT OF ACQUITTAL RENDERED.

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

      . The appellant’s son, Dwayne Anthony Collier, Jr., was a codefendant in this case; he was charged with and found guilty of murder, see § 13A-6-2, Ala.Code 1975.

      . Dwayne was also charged with murder, see § 13A-6-2, Ala.Code 1975, and with discharging a firearm into an occupied building, see § 13A-11-61, Ala.Code 1975. The jury found him not guilty of those charges.

      . For the purposes of a first-degree-hindering-prosecution conviction, the crime must be murder or a class A or B felony. See § 13A-10—43(a), Ala.Code 1975.

      . In its brief on application for rehearing, the State argues that this Court's reliance on Wer-dell, supra, was misplaced because, it says, the Oregon Court of Appeals distinguished Werdell in State v. Harding, 213 Or.App. 536, 162 P.3d 305 (2007), by holding that, if evidence showed that the defendant concealed a shotgun after another person used the shotgun to shoot the victim and before the shooter was identified, at the time the defendant concealed the shotgun the gun might have aided in police’s discovery or apprehension of the shooter as required under Oregon’s hindering-prosecution statute. Harding, however, expressly rejects the State’s argument:
      "Defendant’s subsequent reliance on [Wer-dell] is therefore misplaced. In Werdell, the defendant disposed of a gun that constituted evidence linking his son to the commission of a felony of which the police were unaware. At the time the defendant disposed of the evidence, his son was in police custody for an unrelated crime. The Supreme Court rejected the state’s proposed extension of the statute to cover the 'suppress[ion] of evidence that might have aided in the discovery of the fact that such a person had committed a crime.’ 340 Or. at 595-96, 136 P.3d 17 (emphasis in original). The focus of that decision was the misapplication of the word ‘discovery’ in ORS 162.325(l)(e) to the fact that a knovrn person has committed an unknown felony rather than to the identity of an unknown person who has committed a felony of which the police are already aware. Id. at 596-97, 136 P.3d 17, This case involves exactly the sort of situation to which the statute does apply, according to the Supreme Court in Wer-dell—the concealment of evidence that would aid in the discovery of the person who committed a felony.”

        State v. Harding, 213 Or.App. 536, 541-42, 162 P.3d 305, 307 (2007) (emphasis added). In the instant case, even if Dwayne’s throwing the gun in the woods constituted "concealment," it did not prevent law enforcement from “discovering” Anthony under the circumstances here. Indeed, the undisputed evidence indicated that Dwayne restrained Anthony at the crime scene until police arrived.

      . Indeed, Alabama has a separate statute that makes lying to law-enforcement authorities a crime. Section 13A-10-9, Ala.Code 1975, provides:
      "(a) A person commits the crime of false reporting to law enforcement authorities if he knowingly makes a false report or causes the transmission of a false report to law enforcement authorities of a crime or relating to a crime.
      "(b) False reporting to law enforcement authorities is a Class A misdemeanor.”

      . In its brief on application for rehearing, the State contends that whether Anthony had actually been "apprehended" at the time Dwayne made false statements to police was disputed by the State. The State argues that "Deputy Fisher testified that when he arrived, [Dwayne] was holding down Anthony and that Anthony was secured in an ambulance because of a laceration to his head. (R. 86-87.)” (State’s brief on application for rehearing, p. 12 (emphasis in original)). The State argues that Deputy Fisher’s use of the word "secured” did not mean "apprehended.” Deputy Fisher testified for the State on direct examination, however, that Dwayne was "secured” in a patrol car. (R. 87.) Further, the State, in its brief on appeal in Anthony’s case (CR-14-0601), states that Dwayne "jumped on top of [Anthony] and held him down until deputies arrived. (R. 131.)” (State’s brief, CR-14-0601, pp. 2-3.) Therefore, we do not agree with the State’s assertion on appeal that it disputed at trial that Anthony was taken into custody at the scene.

      . Dwayne informed law enforcement of the location of the gun at the first opportunity.