author: PER CURIAM. JOINER, Judge, WELCH, Judge,

text:
    Thomas Addies THOMAS v. STATE of Alabama.
    CR-13-0812.
    Court of Criminal Appeals of Alabama.
    Aug. 14, 2015.
    Christopher R. East, Montgomery (withdrew 12/05/2014); and Kevin M. Hall, Dadeville, for appellant.
    Luther Strange, atty. gen,, and Ferris S. Stephens, asst. atty. gen., for appellee.
   PER CURIAM.

AFFIRMED BY UNPUBLISHED MEMORANDUM.

KELLUM, J., concurs, JOINER, J., concurs in the result, with opinion, which WINDOM, P.J., and BURKE, J., join. WELCH, J., dissents, with opinion.

JOINER, Judge,

concurring in the result.

Thomas Addies Thomas appeals his convictions for second-degree domestic violence, see § 13A-6-131, Ala.Code 1975, and domestic violence by strangulation or suffocation, see § 13A-6-138, Ala.Code 1975, and his sentences of 10 years’ imprisonment for each offense. This Court affirms Thomas’s convictions by unpublished memorandum; I concur in the result.

The facts of this case are disturbing and are correctly set out in this Court’s unpublished memorandum:

“[Thomas] and the victim, 53-year-old Charleen Thomas [(‘Charleen’)], were married in 2009. Due to Thomas’s alcoholism and ‘major drug problem,’ the couple had been separated for more than a year before the May 5, 2013, incident underlying the current charges. (R. 150.) On May 4, 2013, Thomas departed the ‘men’s home’ in Columbusf,] Georgia where he was living and he arrived at Charleen’s home at some point in the evening. There, he was provided a guest room in which to stay.
“At some point shortly after 9:00 p.m. on May 5, 2013, Thomas entered Charlene’s bedroom and requested to have sex with her. Charlene declined Thomas’s request. As Thomas was leaving Charlene’s bedroom he stated, ‘This is gonna hurt you more than it does me.’ (R. 160.) Charleen said that he appeared to be sober when he left her bedroom. In five minutes Thomas returned to Charleen’s bedroom angry, screaming, and cursing at her. He jumped on top of Charleen, who was still lying on her bed, and pinned her down with his knees. ' He told her, ‘You’ve done it now, bitch. You’re gonna die.’ (R. 162.) Thomas spit in Charleen’s face and pulled her hair. At this point Char-leen stated that she did sméll alcohol on Thomas’s breath. He began hitting the back of Charleen’s head with his fist. He told Charleen that she ‘was going to die tonight, and so was he.’ (R. 164.) He picked up a hammer that was under Charleen’s nightstand and tried to force her to hit him with the hammer. She explained that he wanted her fingerprints on the hammer and he wanted ‘it’ to look like self-defense. However, when Charleen resisted his attempt to force her to hit him with the hammer, he put the hammer down and abandoned that idea. Thomas began to hit and kick Charleen and to ‘head butt [her] with his head against [her] head.’ (R. 164.) She said she was in ‘horrible pain.’ (R. 164.) She pleaded with him to stop. She stated that ‘he must have hit [her] a hundred times or so’ over the course of an hour while saying bad things to her and telling her that he intended to kill her. At some point, a head butt caused her to lose consciousness. When she woke up, she was on the bedroom floor. When Thomas saw that Charleen was awake, he grabbed her, pulled her pajama bottoms off, pulled his belt off, leaned Char-leen over the bed, and spanked her bottom with the belt as if she were a child. Charleen guessed Thomas struck her 20 or 30 times with the belt. Thomas took Charleen’s cellular phone from her bedside nightstand and used it to beat Charleen in the head. She fought her way into the den where Thomas pushed her to the floor. Thomas repeatedly punched Charleen in her ribs and stomach. He placed his belt around her neck and pulled it tight. Charleen testified that she was ‘gagging. [She was] trying to struggle. Nothing [was] working. [She was] urinating on [her]self.’ (R. 170.) Charleen struggled against the belt until she pulled it from her neck and threw it across the room. Thomas retrieved the belt, slipped the belt through its buckle to make a loop, placed the loop around Charleen’s neck, and pulled it tight. He was telling her, You deserve this, you know. You’ve turned my family against me, Miss Goody Two-Shoes.’ (R. 172.) Thomas pulled on the belt ‘real hard’ at least three times. (R. 172.) Charleen could not breath, and then Thomas stuck his fist in her mouth and his fingers down her throat and she began to gag. At some point Thomas pulled so forcefully on the belt that he lifted Charleen’s entire body off the floor. She lost consciousness. When she awoke, Thomas ordered her to go to her bedroom and get into bed. She was unable to walk, so she had to crawl to her bedroom. Thomas was screaming at her from the kitchen. Charleen believed Thomas was in the kitchen trying to open a bottle of wine. Charleen, who was naked at this point, gathered herself and went into the bathroom connected to her bedroom, opened the bathroom window, and jumped out of the window to the ground approximately 10 to 14 feet below. She was able to walk to a neighbor’s house who summoned the police and an ambulance. Charleen was taken by ambulance to a hospital emergency room. She was treated in the emergency room but not admitted to the hospital.
“Doctor Joseph Monley treated Char-leen in the emergency room. He testified that a belt like the one allegedly used to choke Charleen, could, if wrapped around someone’s neck and pulled tight enough, decrease the person’s oxygen enough to cause death.
“Numerous photographs were admitted into evidence depicting Charleen’s injuries.

On appeal, Thomas raises only one issue—specifically, whether his convictions for second-degree domestic violence and domestic violence by strangulation or suffocation violate the principles of double jeopardy because, he says, both offenses “were based on the same statutory elements as the other and the same facts and allegations in each count of the indictment.” (Thomas’s brief, p. 8.)

Initially, I note that Thomas’s brief fails to satisfy the requirements of Rule 28(a)(10), Ala. R.App. P., which mandates that an appellant’s argument contain “the contentions of the appellant/petitioner with respect to the issues presented, and the reasons therefor, with citations to the cases, statutes, other authorities, and parts of the record relied on.”

“[I am] aware that application of Rule 28(a)(10) to find a waiver of arguments in an appellate brief has been limited to those cases in which the appellant presents general assertions and propositions of law with few or no citations to relevant legal authority, resulting in an argument consisting of undelineated general propositions unsupported by sufficient legal authority or argument. Although Rule 28(a)(10) is to be cautiously applied, it has been applied recently by the Alabama Supreme Court and by this Court when appropriate. E.g., Ex parte Theodorou, 53 So.3d 151 (Ala.2010); Jefferson County Comm’n v. Edwards, 32 So.3d 572 (Ala.2009); Slack v. Stream, 988 So.2d 516 (Ala.2008); James v. State, 61 So.3d 357 (Ala.Crim.App.20[10]) (opinion on remand from Alabama Supreme Court); Scott v. State, [Ms. CR-06-2233, March 26, 2010] — So.3d — (Ala.Crim.App.2010); Baker v. State, 87 So.3d 587 (Ala.Crim.App.2009); Lee v. State, 44 So.3d 1145 (Ala.Crim.App.2009); Bush v. State, 92 So.3d 121 (Ala.Crim.App.2009); and Franklin v. State, 23 So.3d 694 (Ala.Crim.App.2008).
“In Scott v. State, this Court stated:
“ ‘ “Recitation of allegations without citation to any legal authority and without adequate recitation of the facts relied upon has been deemed a waiver of the arguments listed.” Hamm v. State, 913 So.2d 460, 486 (Ala.Crim.App.2002). “An appellate court will consider only those issues properly delineated as such and will not search out errors which have not been properly preserved or assigned. This standard has been specifically applied to briefs containing general propositions devoid of delineation and support from authority or argument.” Ex parte Riley, 464 So.2d 92, 94 (Ala.1985) (citations omitted). “When an appellant fails to cite any authority for an argument on a particular issue, this Court may affirm the judgment as to that issue, for it is neither this Court’s duty nor its function to perform an appellant’s legal research.” City of Birmingham v. Business Realty Inv. Co., 722 So.2d 747, 752 (Ala.1998).’
“Scott v. State, — So.3d at—. See also Hamm v. State, 913 So.2d 460, 486 n. 11 (Ala.Crim.App.2002) (‘Applying the federal counterpart to Alabama’s Rule 28, Ala. R.App. P., the United States Court of Appeals for the Eighth Circuit stated, “[W]e regularly decline to consider cursory or summary arguments that are unsupported by citations to legal authorities. See United States v. Wadlington, 233 F.3d 1067, 1081 (8th Cir. 2000); United States v. Gonzales, 90 F.3d 1363, 1369 (8th Cir.1996); see also United States v. Dunkel, 927 F.2d 955, 956 (7th Cir.1991) (‘Judges are not like pigs, hunting for truffles buried in briefs.’).” U.S. v. Stuckey, 255 F.3d 528, 531 (8th Cir.2001).’).”

Taylor v. State, 157 So.3d 131, 142-43 (Ala.Crim.App.2010).

In his brief on appeal, Thomas quotes only one case—Crayton v. State, 949 So.2d 976 (Ala.Crim.App.2006)—which consists of a quotation of both §§ 13A-l-8(b)(l) and 13A-l-9(a), Ala.Code 1975, and sets out the general proposition of law that, “ hvhen determining if one offense is included in another, the trend of recent Alabama decisions is to focus on the statutory-elements of the offenses and the factual allegations actually included in the indictment, rather than on the evidence or factual basis the State presents at trial or during the guilty-plea colloquy.’” (Thomas’s brief, p. 9 (quoting Crayton, 949 So.2d at 977).) Thereafter, Thomas quotes §§ 13A-6-181(a) and 13A-6-138(b), Ala. Code 1975—which are the offenses with which he was charged—and quotes portions of his indictment. The totality of Thomas’s analysis as to his claim is as follows:

“Here, based on the statutory elements of the offenses charged in Counts II and III and the facts alleged in the indictments and oral jury instruction as to the elements of those offenses, Thomas’s convictions for both violate principles of double jeopardy and cannot stand. One of those convictions and sentences must be reversed and vacated.”

(Thomas’s brief, p. 11.)

Thus, Thomas’s brief on appeal consists of an argument that includes a citation of only one case that stands for a general proposition of law, quotations of the statutes under which he was charged, partial quotations from his indictment, and a bare allegation that his convictions violate double-jeopardy principles, without any analysis as to how his convictions violate those principles. Consequently, Thomas’s argument on appeal is insufficient to satisfy Rule 28(a)(10), Ala. R.App. P,, and should not be considered by this Court.

Regardless, his claim is without merit. Again, as stated above, Thomas contends that his convictions for second-degree domestic violence and domestic violence by strangulation or suffocation violate the principles of double jeopardy because, he says, both offenses “were based on the same statutory elements as the other and the same facts and allegations in each count of the indictment.” (Thomas’s brief, p. 8.)

Thomas, in his brief on appeal, correctly sets out the following controlling principle:

“Section 13A-l-8(b)(l), Ala.Code . 1975, provides:
“ ‘(b) When the same conduct of a defendant may establish the commission of more than one offense, the defendant may be prosecuted for each such offense. He may not, however, be convicted of more than one offense if:
“ ‘(1) One offense is included in the other, as defined in Section 13A-1-9.’
“(Emphasis added.) Section 13A-l-9(a), Ala,Code 1975, provides:
“ ‘(a) A defendant may be convicted of an offense included in an offense charged. An offense is an included one if:
“‘(1) It is established by proof of the same or fewer than all the facts required to establish the commission of the offense charged; or “‘(2) It consists of an attempt or solicitation to commit the offense charged or to commit a lesser included offense; or
“ ‘(3) It is specifically designated by statute as a lesser degree of the offense charged; or
“ ‘(4) It differs from the offense charged only in the respect that a less serious injury or risk of injury to the same person, property, or public interests, or a lesser kind of culpability suffices to establish its commission.’
“ ‘[I]n determining whether one offense is included in another, the trend of recent Alabama decisions is to focus on the statutory elements of the offenses and the factual allegations actually in- eluded in the indictment, rather than on the evidence or factual basis the State presents at trial or during the guilty-plea colloquy.’ Johnson v. State, 922 So.2d 137, 141 (Ala.Crim.App.2005). See also Moss v. State, 929 So.2d 486, 489 (Ala.Crim.App.2005) (‘[T]he clear trend in Alabama law is that in determining whether one offense is included in another, the focus is on the statutory elements of the offenses and the facts as alleged in the indictment, not on the evidence presented at trial.’).”

Crayton v. State, 949 So.2d 976, 977 (Ala.Crim.App.2006) (some emphasis added). Thus, when determining whether one offense is included in another, we look to the statutory elements of the offenses charged and to the allegations included in the indictments—not to the evidence presented at trial.

Here, instead of applying the principle articulated in Crayton and examining only the statutory elements of second-degree domestic violence and domestic violence by strangulation or suffocation and the allegations raised in Thomas’s indictment, this Court’s unpublished memorandum examines the statutory elements of both offenses, the allegations set forth in Thomas’s indictment, and the evidence the State presented at trial. Specifically, the unpublished memorandum examines the evidence the State presented at trial to determine what act served as the basis of Thomas’s second-degree-domestic-violence conviction. The unpublished memorandum finds:

“The physical injury caused by use of a belt did not have to be strangulation or suffocation as both Thomas and the State seem to assert. The indictment did not limit, nor did the trial court’s jury instructions limit seeond-degree domestic violence to an incident of strangulation. Thomas struck Charleen on the buttocks 20 or 30 times with a belt. The State’s exhibits 34 and 35 are photographs admitted into evidence depicting the bruises and abrasions to Charleen’s buttocks caused by the blows Thomas delivered with his belt. This is sufficient evidence to establish the impairment of physical condition, i.e., physical injury, necessary to convict for second degree domestic violence.”

Thereafter, the unpublished memorandum rejects Thomas’s claim, concluding:

“The jury could have found domestic violence by strangulation or suffocation (Count 3) based on two factual scenarios that are unrelated to the spanking incident discussed above. First, there was evidence before the jury establishing that Thomas strangled Charleen with a belt with the intent to cause physical harm. There was also evidence before the jury that Thomas intended to cause Charleen physical harm by obstructing her airway by sticking his fist into her mouth and causing her to suffocate. See § 13A-6-138(a), Ala.Code 1975.
“Therefore, based on all the evidence before the jury, it is possible that the jury could have found Thomas guilty of second-degree domestic violence based on evidence regarding a strangulation with a belt or based on a spanking with a belt. The jury could have found Thomas guilty of domestic violence by strangulation based on evidence of a strangulation with a belt or based on an attempt to suffocate by placing his fist in her mouth. A double jeopardy concern would exist only if the jury found second-degree domestic violence and domestic violence by strangulation based on the strangulation with a belt. However, the jury’s findings are unknown. Viewing all the evidence, it is clear that the jury had before it evidence supporting its verdicts, this Court will not go behind that verdict.”
Because this analysis does more than examine only the statutory elements and the allegations set forth in the indictment, the unpublished memorandum conflicts with Crayton.
Additionally, the analysis set forth in the unpublished memorandum is largely unnecessary, and, by engaging in this unnecessary analysis, the unpublished memorandum has pi’ovided the dissent with the opportunity also to ignore Crayton and to examine the evidence presented at trial to determine whether Thomas’s conviction for domestic violence by strangulation or suffocation is included within the offense of second-degree-domestic-violence.
Specifically, the dissent examines the State’s evidence presented at trial, dismisses the conclusion in the unpublished memorandum, and concludes that the “spanking” could not have formed the basis of the second-degree domestic violence conviction because the “belt” was not a “deadly weapon or dangerous instrument.” Thus, the dissent concludes that, because “spanking” could not have formed the basis for the second-degree-domestic-violence conviction, the only act that could have formed the basis of the second-degree-domestic-violence conviction was Thomas’s strangling Charleen with the belt and was, therefore, the same act that formed the basis of the domestic-violence-by-strangulation conviction.
The approach used by both the unpublished memorandum and the dissent is not only contrary to our well settled caselaw, but also unnecessarily cumbersome. Indeed, applying the above-quoted principle to this case—the principle Thomas asks us to apply—makes this case quite simple.
Here, Thomas was indicted by the Lee County Grand Jury, in relevant part, as follows:
“Count II
“[Thomas], did with intent to cause physical injury to another person, cause physical injury to another person to-wit: Charleen Mickle Thomas, by means of a deadly weapon or a dangerous instrument, to-wit: a belt, in violation of 13A-6-21 of the Code of Alabama and the victim, Charleen Mickle Thomas is a current or former spouse ... to-wit: a spouse, in violation of Section 13A-6-131 of the Code of Alabama....
“Count III
“[Thomas], did with intent to cause physical harm by strangulation or suffocation or attempted strangulation or suffocation to another person, to-wit: Charleen Mickle Thomas, and the victim, Charleen Mickle Thomas, is a spouse ... in violation of 13A-6-138 of the Code of Alabama....”

(C. 10 (emphasis added).)

Second-degree domestic violence is defined, in relevant part, as follows:

“(a) A person commits the crime of domestic violence in the second degree if the person commits the crime of assault in the second degree pursuant to Section 13A-6-21 ... and the victim is a current or former spouse, parent, child, any person with whom the defendant has a child in common, a present or former household member, or a person who has or had a dating or engagement relationship with the defendant....”

§ 13A-6-131(a) Ala.Code 1975. Second-degree assault is defined as follows:

“(a) A person commits the crime of assault in the second degree if the person does any of the following:
"....
“(2) With intent to cause physical injury to another person, he or she causes physical injury to any person by means of a deadly weapon or a dangerous instrument....”

§ 13A-6-21, Ala.Code 1975. “Physical injury” is defined as “impairment of physical condition or substantial pain.” § 13A-1-2(8), Ala.Code 1975. A “dangerous instrument” is defined as:

“Any instrument, article or substance which, under the circumstances in which it is used, attempted to be used or threatened to be used, is highly capable of causing death or serious physical injury. ...”

§ 13A-1-2(12), Ala.Code 1975.

Domestic violence by strangulation or suffocation is defined as follows:

“(b) A person commits the crime of domestic violence by strangulation or suffocation if the person commits an assault with intent to cause physical harm ... by strangulation or suffocation, or attempted strangulation or suffocation against a person with whom the defendant has a qualified relationship.”

§ 13A-6-138(b), Ala.Code 1975.

An examination of the statutory elements of these two offenses clearly demonstrates that each offense requires proof of at least one element which the other does not. See Crayton, 949 So.2d at 977. See also Williams v. State, 104 So.3d 254, 256 (Ala.Crim.App.2012) (“In Blockburger v. United States, 284 U.S. 299, 304, 52 S.Ct. 180, 76 L.Ed. 306 (1932), the United States Supreme Court held that Vhere the same act or transaction constitutes a violation of two distinct statutory provisions, the test to be applied to determine whether there are two offenses or only one, is whether each provision requires proof of an additional fact which the other does not.’”). Specifically, second-degree domestic violence requires proof that Thomas used a deadly weapon or dangerous instrument, which is not a statutory element for domestic violence by strangulation or suffocation; domestic violence by strangulation or suffocation requires proof of strangulation or attempted strangulation, which is not a statutory element for second-degree domestic violence. Additionally, the allegations set out in counts II and III of Thomas’s indictment do not demonstrate that the strangulation—or attempted strangulation—charged in count III of the indictment was the same act that gave rise to the second-degree domestic violence charged in count II of the indictment.

Because Thomas’s brief does not satisfy Rule 28(a)(10), Ala. R.App. P., and an examination of the statutory elements and allegations in the indictment demonstrate that his claim is without merit, I concur in the result.

WINDOM, P.J., and BURKE, J„ concur.

WELCH, Judge,

dissenting.

Thomas Addies Thomas was convicted of attempted murder, violations of §§ 13A-4-2 and 13A-6-2, Ala.Code 1975; of second-degree domestic violence, a violation of § 13A-6-131, Ala.Code 1975; and of domestic violence based on strangulation, a violation of § 13A-6-138, Ala. Code 1975. He was sentenced to 25 years’ imprisonment for the attempted-murder conviction, 10 years’ imprisonment for the second-degree-domestic-violence conviction, and 10 years’ imprisonment for the domestic-violence-based-on-strangulation conviction; the sentences were to run concurrently.

Thomas’s only issue on appeal is his contention that his convictions for both second-degree domestic violence and domestic violence based on strangulation constitute a violation of the prohibition against double jeopardy, and, thus, he asserts that one of the convictions and its sentence must be set aside. Thomas asserts that “both offenses were based on the same statutory elements as the other and the same facts and allegations in each count of the indictment.” (Thomas’s brief, at p. 8.) Thomas contends that the standard for appellate review is whether one of these two offenses is a lesser-included offense to the other. See Crayton v. State, 949 So.2d 976, 978 (Ala.Crim.App.2006)(a challenge to convictions for a greater and lesser offense “implicates the jurisdiction of the trial court”). This contention was not presented to the trial court, but has been presented for the first time on appeal as a jurisdictional defect.

The unpublished memorandum in Thomas v. State, [No. CR-13-0812, August 14, 2015] — So.3d - (Ala.Crim.App.2015), affirming Thomas’s convictions finds that “there were facts before the jury that allowed the jury to find that Thomas was guilty of second-degree domestic violence (Count 2) based on conduct different from that presented establishing domestic violence by strangulation (Count 3).” Specifically, the memorandum concludes that there were three separate offenses, i.e., three assaults, and therefore, a double jeopardy- violation is not implicated. The unpublished memorandum explains the existence of three separate assaults as follows:

“To establish second-degree domestic violence the State had to prove that Thomas intentionally inflicted physical injury by means of a deadly weapon or dangerous instrument—here, a belt. The physical injury caused by use of a belt did not have to be strangulation or suffocation as both Thomas and the State seem to assert. The indictment did not limit, nor did the trial court’s jury instructions limit second-degree domestic violence to an incident of strangulation. Thomas struck Charleen on the buttocks 20 or 30 times with a belt. The State’s exhibits 34 and 35 are photographs admitted into evidence depicting the bruises and abrasions to Charleen’s buttocks caused by the blows Thomas delivered with his belt. This is sufficient evidence to establish the impairment of physical condition, i.e., physical injury, necessary to convict for second degree domestic violence....
“It was an element of second-degree domestic violence, as charged in Thomas’s indictment, that a belt constitute a dangerous instrument. Under the facts of this case, this Court cannot say as a matter of law that the belt used to strike Charleen’s buttocks was per se a dangerous instrument; that was an issue of fact for the jury to determine based on all the evidence in the case. See Sharpe v. State, 340 So.2d 885, 888 (Ala.Crim.App.1976) (where the appellant was charged with assault and battery, the appellate Court could not conclude as matter of law that use of a chair to .strike a police officer across his back \yas per se a deadly instrument; however,-the Court opined .that ‘this issue is a matter of. fact for the jury to determine under all the evidence in this case.’); McCray v. State, 643 So,2d 610 (Ala.Crim.App.1992) (defendant charged with second-degree assault had his motion for judgment of acquittal properly denied because the evidence presented allowed the jury to find that adhesive tape was used in a manner transforming it into a deadly weapon or dangerous instrument); Helton v. State, 372 So.2d 390, 393 (Ala.Crim.App.1979) (‘Thus we cannot state, as a matter of law, that kicking with a shoe-clad foot may not constitute assault with a deadly weapon. While feet or shoes are not deadly weapons per se, the manner of them use in particular situations may make them deadly weapons,’). Here, preceding the incident in which Thomas did strangle Charleen with his belt, Thomas beat Charleen to the point that it appeared to be an attempt to severely injure or kill Charleen. Thomas first told Charleen that he was going to kill her. He then struck her numerous times in the head with his fist, with a cellular telephone, and with his own head until she lost consciousness. The jury could have found that Thomas’s striking Charleen on the buttocks 20 to 30 times with a belt was a continuation of his attempts to injure.or kill Charleen. Thus, there was evidence allowing the jury to find that the belt was used in the manner of a dangerous instrument ‘highly capable of causing death or serious physical injury.’
“The jury could have found domestic violence by strangulation or suffocation (Count 3) based on two factual scenarios that are unrelated to the spanking incident discussed above. First, there was evidence, before the jury establishing that Thomas strangled Charleen with a belt with the intent to cause physical harm. There was also evidence before the jury that Thomas intended to cause Charleen physical harm by obstructing her airway by sticking his fist into her mouth and causing her to suffocate. See, § 13A-6-138(a), Ala.Code 1975.
“Therefore, based on all the evidence before the jury, it is possible that the jury could have found Thomas guilty of second-degree domestic violence based on evidence regarding a strangulation with a belt or based on a spanking with a belt. The jury could have found Thomas guilty of domestic violence by strangulation based on evidence of a strangulation with a belt or based on an attempt to suffocate by placing his fist in her mouth. A double jeopardy concern would exist only if the jury found second-degree domestic violence and. domestic violence by strangulation based on the strangulation with a belt. However, the jury’s findings are unknown. Viewing all the evidence, it is clear that the jury had before it evidence supporting its verdicts, this Court will not go behind that verdict.”

I respectfully dissent from the unpublished memorandum affirming. Thomas’s conviction for domestic violence by strangulation. Because I believe that conviction violates the ' prohibition against double jeopardy, I would reverse that conviction and render a judgment for Thomas.

A single indictment was returned against Thomas charging the following:

“Count I
“Thomas [Addies] Thomas, did, with the intent to commit the crime of Murder (Section 13A-6-2 of the Code of- Alabama), commit said offense by attempting to intentionally cause the death of another person, Charleen Mickle Thomas, by choking her with a belt, in violation of Section 13A-4-2 of the Code of Alabama ...
“Count II
“Thomas [Addies] Thomas, did with intent to cause physical injury to another person, cause physical injury to another person to-wit: Charleen Mickle Thomas, by means of a deadly weapon or. a dangerous instrument, to-wit: a belt, in violation of 13A-6-21 of the Code of Alabama and the victim, Charleen Mickle Thomas is a current or former spouse ... to-wit: a spouse, in violation of-Section 13A-6-1S1 of the Code of Alabama. ...
“Count III
“Thomas [Addies] Thomas, did with intent to cause physical harm by strangulation or suffocation or attempted strangulation or suffocation to another person, to-wit: Charleen Mickle Thomas, and the victim, Charleen Mickle Thomas, is a spouse ... in violation of 13A-6-138 of the. Code of Alabama .... ”
This Court states in its unpublished memorandum:
“Facts
“Thomas Addies Thomas and the victim, 53-year-old Charleen Thomas, were married in 2009. Due to Thomas’s alcoholism and ‘major drug problem,’ the couple had been separated for more than a year before the May 5, 2013, incident underlying the current charges. (R. 150.) On May 4, 2013, Thomas departed the ‘men’s home’ in Columbus, Georgia, where he was living and he arrived at Charleen’s home at some point in the evening. There, he was provided a guest room in which to stay.
“At some point shortly after 9:00 p.m. on May 5, 2013, Thomas entered Char-leen’s bedroom and requested to have sex with her. Charleen declined Thomas’s request. As Thomas was leaving Charleen’s bedroom he stated, ‘This is gonna hurt you more than it does me.’ (R. 160.) Charleen said that he appeared to be sober when he left her bedroom. In five minutes Thomas returned to Charleen’s bedroom angry, screaming, and cursing at her. He jumped on top of Charleen, who was still lying on her bed, and pinned her down with his knees. He told her, ‘You’ve done it now, bitch. You’re gonna die.’ (R. 162.) Thomas spit in Charleen’s face and pulled her hair. At this point Char-leen stated that she did smell alcohol on Thomas’s breath. He began hitting the back of Charleen’s head with his fist. He told Charleen that she ‘was going to die tonight, and so was he.’ (R. 164.) He picked up a hammer that was under Charleen’s nightstand and tried to force her to hit him with the hammer. She explained that he wanted her fingerprints on the hammer and he wanted ‘it’ to look like self-defense. However, when Charleen resisted his attempt to force her to hit him with the hammer, he put the hammer down and abandoned that idea. Thomas began to hit and kick Charleen and to ‘head butt [her] with his head against [her] head.’ (R. 164.) She said she was in ‘horrible pain.’ (R. 164.) She pleaded with him to stop. She stated that ‘he must have hit [her] a hundred times or so’ over the course of an hour while saying bad things to her and telling her that he intended to kill her. At some point, a head butt caused her to lose consciousness. When she woke up, she was on the bedroom floor. When Thomas saw that Charleen was awake, he grabbed her, pulled her pajama bottoms off, pulled his belt off, leaned Char-leen over the bed, and spanked her bottom with the belt as if she were a child. Charleen guessed Thomas struck her 20 or 30 times with the belt. Thomas took Charleen’s cellular phone from her bedside nightstand and used it to beat Charleen in the head. She fought her way into the den where Thomas pushed her to the floor. Thomas repeatedly punched Charleen in her ribs and stomach. He placed his belt around her neck and pulled it tight. Charleen testified that she was ‘gagging. [She was] trying to struggle. Nothing was working. [She was] urinating on [her]self.’ (R. 170.) Charleen struggled against the belt until she pulled it from her neck and threw it across the room. Thomas retrieved the belt, slipped the belt through its buckle to make a loop, placed the loop around Charleen’s neck, and pulled it tight. He was telling her, You deserve this, you know. You’ve turned my family against me, Miss Goody Two-Shoes.’ (R. 172.) Thomas pulled on the belt ‘real hard’ at least three times. (R. 172.) Charleen could not breath, and then Thomas stuck his fist in her mouth and his fingers down her throat and she began to gag. At some point Thomas pulled so forcefully on the belt that he lifted Charleen’s entire body off the floor. She lost consciousness. When she awoke, Thomas ordered her to go to her bedroom and get into bed. She was unable to walk, so she had to crawl to her bedroom. Thomas was screaming at her from the kitchen. Charleen believed Thomas was in the kitchen trying to open a bottle of wine. Charleen, who was naked at this point, gathered herself and went into the bathroom connected to her bedroom, opened the bathroom window, and jumped out of the window to the ground approximately 10 to 14 feet below. She was able to walk to a neighbor’s house, who summoned the police and an ambulance. Charleen was taken by ambulance to a hospital emergency room. She was treated in the emergency room but not admitted to the hospital.
“Doctor Joseph Monley treated Char-leen in the emergency room. He testified that a belt like the one allegedly used to choke Charleen, could, if wrapped around someone’s neck and pulled tight enough, decrease the person’s oxygen enough to cause death.
“Numerous photographs were admitted into evidence depicting Charleen’s injuries.

I disagree with the assertion that the jury could have found that the belt, when used to strike Charleen’s buttocks, was transformed into a dangerous instrument capable of causing death or serious physical injury.

Section 13A-l-2(5), Ala.Code 1975, defines “dangerous instrument” as: “Any instrument, article, or substance which, under the circumstances in which it is used, attempted to be used, or threatened to be used, Is highly capable of causing death or serious physical injury....” Section 13A-1-2(14), Ala.Code 1975, defines “serious physical injury” as: “Physical injury which creates a substantial risk of death, or which causes serious and protracted disfigurement, protracted impairment of health, or protracted loss or impairment of the function of any bodily organ.” The commentary to § 13A-1-2, Ala.Code 1975, states:

“Many objects are not deadly per se and ordinarily have lawful functions and uses, but under subdivision ([15]) such object may constitute a ‘dangerous instrument’ because it was used, or attempted to be used, in a manner rendering it ‘readily capable of causing death or serious physical injury.’ (A stick, rock, pencil or pen is capable of producing great harm or even death if jammed in a person’s eye, ear or throat.) This definition essentially states previously existing law,... An instrument or weapon used in inflicting injury may or may not be esteemed deadly, according to the manner of its use, and the subject on which it is used. Sylvester v. State, 72 Ala. 201 (1882). In other words, a deadly weapon is not only a weapon with which death may be easily and readily produced, but one which is likely to produce death or great bodily harm from the manner in which it is used. Williams v. State, 251 Ala. 397, 39 So.2d 37 (1948).”

§ 13A-1-2, Ala.Code 1975, Commentary.

Pursuant to the offense charged and the charge given to the jury, the physical injury required for second-degree assault had to be inflicted by use of a dangerous instrument, which by statutory definition must be an object used in such a manner that it is “highly capable of causing death or serious physical injury.” § 13A-l-2(5), Ala. Code 1975. Therefore, even if the blows from the belt to Charleen’s buttocks caused physical injury, the belt must have been used in a manner rendering it “highly capable of causing death or serious physical injury.” § 13A-l-2(5), Ala; Code 1975. I do not believe that the belt, when used to strike Charleen’s buttocks, was “highly capable of causing death or serious physical injury.” § 13A-l-2(5), Ala. Code 1975. Therefore, because I'do not believe that the State proved that a dangerous instrument was used to strike Charleen’s buttocks, I do not believe that the State proved that that incident was a second-degree assault and, thus, did not prove that that incident was second-degree domestic violence. Therefore, unlike those who joined the unpublished memorandum, I do not believe that striking Charleen’s buttocks was a separate incident of second-degree assault upon which the jury' could find Thomas guilty of second-degree domestic violence.

Next, I disagree with the finding in the unpublished memorandum that Thomas’s placing his fist in Charleen’s mouth while he was strangling her with a belt constituted a separate incident of assault. She stated that as Thomas pulled the belt tighter around her neck she “[could] not breathe.” (R. 172.) Charleen stated that as Thomas was strangling her with the belt, he stuck his fist into her mouth and his Angers down her throat causing her to gag. Therefore, I believe that the “belt” and “fist” were part of the same attempt to strangle Charleen and not separate incidents. ■

Moreover, the record discloses that the State’s' theory of prosecution was that Thomas’s choking Charleen with the belt constituted three charged crimes. Nowhere in the record did the State argue that the “spanking” or the “fist” incidents were the incidents underlying any charge.

. I believe that there was one incident of strangulation, inflicted by use of a belt, upon which Thomas’s convictions for second-degree domestic violence and domestic violence by strangulation were based. And for the reasons that follow, I believe that the prohibition against double jeopardy has been violated because I believe that, under the facts of this case, second-degree domestic violence and domestic violence by strangulation are the same offense. Therefore, I believe that Thomas’s conviction for domestic violence by strangulation must be reversed and a judgment of acquittal rendered for him.

‘“Blockburger [v. United States, 284 U.S. 299 (1932),] provides that “where the samé act or transaction constitutes a violation of two distinct statutory provisions, the test to be applied to determine whether there are two offenses or only one, is whether each provision requires proof of a fact which the other does not.” ’ ” State v. Esco, 911 So.2d 48, 49 (Ala.Crim.App.2005) (quoting Blockburger v. United States, 284 U.S. at 304 (emphasis added)). As discussed below, domestic violence by strangulation requires proof of the same facts and elements as second-degree domestic violence except that second-degree domestic violence requires proof of one additional fact or element not required for domestic violence by strangulation—the use of a dangerous instrument.

Second-degree domestic violence is defined, in relevant part, as follows:

“(a) A person commits the crime of domestic violence in the second degree if the person commits the crime of assault in the second degree pursuant to Section 13A-6-21 ... and the victim is a current or former spouse, parent, child, any person with whom the defendant has a child in common, a present or former household member, or a person who has or had a dating or engagement relationship with the defendant....”

§ 13A-6-131(a) Ala.Code 1975. '

The relevant section of § 13A-6-21, Ala. Code 1975, defines second-degree assault as follows:

“(a) A person commits the crime of assault in the second degree if the person does any of the following:
“(2) With intent to cause physical injury to another person, he or she causes physical injury to any person by means of a deadly weapon or a dangerous instrument,...”

“Physical injury” is defined as “impairment of physical condition or substantial pain.” § 13A-l-2(8), AJa.Code 1975.

“A ‘dangerous instrument’ is defined as:
“ ‘Any instrument, article or, substance which, under the circumstances in which it is used, attempted to be used or threatened to be used, is highly capable of causing death or serious physical injury....’
“ § 13A-1-2(12)[, Ala.Code 1975].”

McCray v. State, 643 So.2d 610, 614 (Ala.Crim.App.1992). Here, testimony was presented from which the jury could find that a belt constitutes a dangerous .instrument when fashioned into a noose and used to strangle a person.

Based on the definition above, second-degree domestic violence is the commission of second-degree assault against a current or former spouse. The second-degree-assault statute provides various ways, in which a second-degree assault may occur. See § 13A-6-21, Ala.Code 1975. These variations in turn create variations in the facts or elements necessary to prove second-degree domestic violence. As the offense is charged against Thomas, the necessary facts constituting the elements of second-degree domestic violence, are 1) an intentional 2) assault of any kind 3) causing physical injury, 4) committed with a deadly weapon or a dangerous instrument, 5) to a current or former spouse.

Domestic violence by strangulation is defined in § 13A-6-138, Ala.Code 1975, as:

“(b) A person commits the crime of domestic violence by strangulation or suffocation if the person commits an assault with intent to cause physical harm ... by strangulation or suffocation or attempted strangulation or suffocation against a person with whom the defendant has a qualified relationship.”

A qualified relationship includes a spouse or former spouse. See § 13A-6-138(a), Ala.Code 1975.

Thus, the elements of domestic violence by strangulation are: 1) an intentional 2) assault committed by strangulation or suffocation, or attempt to assault by strangulation or suffocation, 3) that causes or attempts to cause physical harm, 4) to a spouse or former spouse.

Both offenses in this case are assaults against a spouse. Both offenses require some degree of physical harm. “Physical harm” necessary for domestic violence by strangulation is not defined by statute, but it is a broad term that includes any measure of physical harm, whether slight of serious. Thus, a “physical injury,” defined by statute and necessary to prove second-degree domestic violence, is included within the scope of “physical harm” and, thus, a “physical injury” may serve as the fact establishing both “physical injury” necessary to prove second-degree domestic violence and “physical harm” necessary to prove domestic violence by strangulation.

Domestic violence by strangulation requires that the method of assault be a strangulation, whereas any conduct that falls within a definition of second-degree assault may constitute second-degree domestic violence. See § 13A-6-21, Ala. Code 1975. Thus, when as here, an assault is accomplished by a strangulation, the strangulation may serve as the fact establishing the assault necessary for both second-degree domestic violence and domestic violence by strangulation. However, here the second-degree assault is charged under a subsection of assault requiring proof that the assault was accomplished by use of a deadly weapon or dangerous instrument. In that scenario, as here, use of a dangerous instrument is an additional fact or element necessary to prove second-degree assault and, in turn, to prove second-degree domestic violence.

In this case, both offenses were based on the exact same conduct. In this case, it was impossible for Thomas to commit second-degree domestic violence without also committing domestic violence by strangulation. When Thomas strangled Charleen, causing her physical harm, he committed the crime of domestic violence by strangulation. As to domestic violence by strangulation, all that was necessary regarding the assault was a strangulation; that a belt was used to accomplish the strangulation or whether the belt was or was not considered a dangerous instrument was irrelevant. Nevertheless, testimony was presented establishing that the belt, as it was used in this case to strangle Charleen, was a dangerous instrument, thus establishing the additional and necessary element for the crime of second-degree domestic violence.

“‘“To be necessarily included in the greater offense, the lesser must be such that it is impossible to commit the greater without first having committed the lesser.” ’ ”

Ex parte N.W., 748 So.2d 190, 192 (Ala.1999) (quoting Chambers v. City of Opelika, 698 So.2d 792, 794 (Ala.Crim.App.1996), quoting in turn Sharpe v. State, 340 So.2d 885, 887 (Ala.Crim.App.), cert. denied, 340 So.2d 889 (Ala.1976) (emphasis added in Chambers omitted)).

“ ‘Section 13A-l-9(a)(l), Code of Alabama 1975, defines a “lesser included offense” as one that “is established by proof of the same or fewer than all the facts required to establish the commission of the offense charged.” Further, “a lesser offense is necessarily included in the elements of the greater offense and therefore it would be impossible to commit a greater offense without committing the included offense.” ’ ”

Owens v. State, 683 So.2d 31, 33 (Ala.Crim.App.1996) (quoting Vinson v. State, 601 So.2d 196, 198 (Ala.Crim.App.1992), quoting in turn C.P. v. State, 597 So.2d 246, 247 (Ala.Crim.App.1992)).

In this case, both offenses were based on the same conduct and both required proof of the same facts—intent, assault, physical injury, spousal victim—but for the additional fact necessary for second-degree domestic violence of the use of a dangerous instrument. Thus, in this case, when Thomas committed second-degree domestic violence he also committed domestic violence by strangulation.

Therefore, in this case, I believe that domestic violence by strangulation is a lesser-included offense of second-degree domestic violence. Because Thomas was convicted of both a greater offense and a lesser offense included within the greater offense, his convictions for both offenses violate double-jeopardy principles. Therefore, I would remand this cause to the circuit court with directions for the circuit court to vacate Thomas’s conviction and sentence for domestic violence by strangulation.

       It was not disclosed during trial, but during the sentencing hearing Charleen stated that she had allowed Thomas to stay in her home so he could attend his daughter’s graduation from pharmacy school.

      . Thomas was also convicted of attempted murder, see §§ 13A-4-2 and 13A-6-2, Ala. Code 1975, and was sentenced to 25 years’ imprisonment. As explained below, however, Thomas challenges only his domestic-violence convictions on appeal. Thus, I do not discuss his attempted-murder conviction.

      "2 A police officer saw an open bottle of wine in the kitchen.

      "3 Testimony from Charleen’s neighbor was that Charleen arrived at the neighbor’s house wearing only a pajama top, but no bottoms.”

        "1 It was not disclosed during trial, but during the sentencing hearing Charleen stated that she had allowed Thomas to stay in her home so he could attend his daughter’s graduation from pharmacy school.

      “2 A police office saw an open bottle of wine in the kitchen.

      "3 Testimony from Charleen's neighbor was that Charleen arrived at the neighbor’s house wearing only a pajama top, but no bottoms.”

      . The jury was not charged on the definition of a deadly weapon. It is defined in § 13A-1-2(7), Ala.Code 1975, as: “[a] firearm or anything manifestly designed, made, or adapted for the purposes of inflicting death or serious physical injury. The term includes, but is not limited to, a pistol, rifle, or shotgun; or a switch-blade knife, gravity knife, stiletto, sword, or dagger; or any billy, black-jack, bludgeon, or metal knuckles."

      . "Domestic violence in the second degree is a Class B felony, except the defendant shall serve a minimum term of imprisonment of six months without consideration of probation, parole, good time credits, or any reduction in time for any second or subsequent conviction under this subsection.” § 13A-6-131(a), Ala. Code 1975.

      , “(a) A person commits the crime of assault in the second degree if the person does any of the following:
      "(1) With intent to cause serious physical injury to another person, he or she causes serious physical injury to any person.
      "(2) With intent to cause physical injury to another person, he or she causes physical injury to any person by means of a deadly weapon or a dangerous instrument.
      “(3) He or she recklessly causes serious physical injury to another person by means of a deadly weapon or a dangerous instrument.
      "(4) With intent to prevent a peace officer, as defined in Section 36-21-60, a detention or correctional officer at any municipal or county jail or state penitentiary, emergency medical personnel, a utility worker, or a firefighter from performing a lawful duty, he or she intends to cause physical injury and he or she causes physical injury to any person....
      "(5) With intent to cause physical injury to a teacher or to an employee of a public educational institution during or as a result of the performance of his or her duty, he or she causes physical injury to any person.
      "(6) With intent to cause physical injury to a health care worker ... he or she causes physical injury to any person.
      "(7) For a purpose other than lawful medical or therapeutic treatment, he or she intentionally causes stupor, unconsciousness, or other physical or mental impairment or injury to another person by administering to him or her, without his or her consent, a drug, substance or preparation capable of producing the intended harm,”
      § 13A-6-21, Ala,Code 1975,

      . "Domestic violence by strangulation or suffocation is a Class B felony punishable as provided by law.” § 13A-6-138(c), Ala.Code 1975.

      . "(a) For the purposes of this section, the following terms have the following meanings:
      "(1) Qualified relationship. The victim is a spouse, former spouse, parent, stepparent, child, stepchild, or a person with whom the defendant has a child in common, or with whom the defendant has or had a dating or engagement relationship within 10 months preceding this event
      "(2) Strangulation. Intentionally causing asphyxia by closure or compression of the blood vessels or air passages of the neck as a result of external pressure on the neck.
      "(3) Suffocation. Intentionally causing asphyxia by depriving a person of air or by preventing a person from breathing through the inhalation of toxic gases or by blocking or obstructing the airway of a person, by any means other than by strangulation as defined in this section.”
      § 13A-6-138(a), Ala.Code 1975.


source: Caselaw Access Project

author: WINDOM, Presiding Judge.

license: Public Domain

text:
    Isaac Isahas WASHINGTON v. STATE of Alabama.
    CR-13-1369.
    Court of Criminal Appeals of Alabama.
    Oct. 23, 2015.
    Rehearing Denied Dec. 12, 2015.

      Jason Darley, Mobile, for appellant.
    Luther Strange, atty. gen., and William D. Dill, asst. atty. gen., for appellee.
   WINDOM, Presiding Judge.

Isaac Isahas Washington appeals his convictions for felony murder, see § 13A-6-2(a)(3), Ala.Code 1975, and second-degree kidnapping, see § 13A-6-44, Ala.Code 1975. The circuit court sentenced Washington as a habitual offender to life in prison without the possibility of parole for his felony-murder conviction and life in prison for his second-degree-kidnapping conviction, both sentences to be served consecutively.

Between 2007 and 2008, Tammy Stokes worked as a confidential informant for several law-enforcement agencies on a variety of drug cases. During that time, Washington, who was involved in the drug trade, learned that Stokes was an informant. On May 28, 2008, Washington and Dwayne Pettaway, who was also involved in the drug trade, encountered Stokes at a gas station. Pettaway asked Stokes to get into their vehicle, and she agreed. Once Stokes was inside the vehicle, one of the two men hit her over the head • with a portable radio, rendering her unconscious. The two men then placed her in the trunk of their vehicle. Washington devised a plan to dispose of Stokes’s body on Henderson Camp Road. Once they arrived at the disposal site, Washington and Petta-way discovered that Stokes was still alive, so one of the men shot her in the head.

In July 2008, Washington had a conversation with Jennifer Trotter, his niece, detailing his involvement in Stokes’s death. Washington also provided Trotter with details about the location of Stokes’s body so that she could claim a $5,000 reward. Trotter told her brother, Ronald Washington, about the conversation, and he drew a map to the location of Stokes’s body based on the directions Washington had given Trotter. Ronald and Trotter searched for the body themselves but were unable to locate it. On August 5, 2011, Ronald relayed the details of Trotter’s conversation with Washington to the police along with the map. Using Ronald’s map, the police discovered Stokes’s remains.

After Stokes’s body was located, Washington was charged with murder, see § 13A-6-2(a)(l), Ala.Code 1975; felony murder, see § 13A—6—2(a)(3); Ala.Code 1975; and first-degree kidnapping, see § 13A-6-43, Ala.Code 1975. He was, however, convicted of felony-murder and second-degree kidnapping, see § 13A-6-44, Ala.Code 1975.

I.

On appeal, Washington argues that the circuit court erroneously adjudicated him guilty of both felony murder and second-degree kidnapping. Relying on this Court’s opinion in Conway v. State, 489 So.2d 641 (Ala.Crim.App.1986), Washington argues that the jury’s verdict finding him guilty of second-degree kidnapping precludes a conviction for felony murder because a “[f]elony[-]murder conviction [cannot] be based on a verdict of [second-degree] kidnapping.” (Washington’s brief, at 16.). According to Washington, the Court’s opinion in Conway established that second-degree kidnapping cannot be the felony underlying a felony-murder conviction because second-degree kidnapping is not an enumerated felony encompassed within the felony-murder statute. § 13A-6-2, Ala.Code 1975. Thus, Washington argues, his convictions for second-degree kidnapping and felony murder are mutually exclusive and contrary to Alabama law. This Court disagrees.

Section 13A-6-2(a)(3), Ala.Code 1975, defines “felony murder” as follows:

“[A] person commits the crime of murder if he or she ... commits or attempts to commit arson in the first degree, burglary in the first or second degree, escape in the first degree, kidnapping in the first degree, rape in the first degree, robbery in any degree, sodomy in the first degree, or any other felony dearly dangerous to human life and, in the course of and in furtherance of the crime that he or she is committing or attempting to commit, or in immediate flight therefrom, he or she, or another participant if there be any, causes the death of any person.”

(Emphasis added.) In Conway, 489 So.2d at 642, this Court held that jury verdicts of not guilty of first-degree kidnapping but guilty of second-degree kidnapping and felony murder were mutually exclusive. Like Washington, Conway was charged with, among other things, first-degree kidnapping and felony murder based on that kidnapping. Id. at 641. The jury initially returned verdicts finding Conway guilty of second-degree kidnapping and felony murder. Id. The circuit court refused to accept the jury verdicts on the ground that second-degree kidnapping was not one of the felonies enumerated in the felony-murder statute; therefore, it reasoned, second-degree kidnapping could not support a felony-murder conviction. Id. at 641-42. The circuit court then instructed the jury as follows:

“ ‘Ladies and gentlemen, I am not going to accept these verdicts in this case. The defendant cannot be guilty of murder unless he is also guilty of kidnapping in the first degree. You found him guilty of kidnapping in the second degree. The only way he could be guilty of [felony] murder is if he’s guilty of kidnapping in the first degree. The two verdicts you have returned are inconsistent as to Count Three and the kidnapping charge. So, I’m going to let you go back.
“‘Do you understand what I’m saying? Under the murder charge you found him guilty of [felony] murder under Count Three. Count Three requires that the death be caused in the course of kidnapping in the first degree. For him to be guilty of [felony] murder, there would have to have been kidnapping in the first degree. For you to find him guilty of kidnapping in the second degree as the other count, he would not be guilty. I will ask you to reconsider that. Either find him not guilty of murder or he would have to be found guilty of kidnapping in the first degree.’ ”

Conway, 489 So.2d at 642. After the circuit court instructed the jury, it returned new verdicts finding Conway guilty of first-degree kidnapping and felony murder. Id.

On appeal, Conway argued that the circuit court had erroneously refused to accept the jury’s initial verdicts. Id. at 641. This Court rejected Conway’s argument and held that “the jury’s verdicts of not guilty of kidnapping in the first degree and guilty of felony-murder were mutually exclusive because, by statutory definition, felony-murder involves causing a death during the commission or attempt to commit certain specific felonies including kidnapping in the first degree.” Id. at 642 (emphasis added). In upholding the circuit court’s decision, this Court considered only those felonies specifically enumerated in the definition of felony murder. Id. This Court did not consider whether second-degree kidnapping could support a felony-murder conviction if the jury found that it was a “felony clearly dangerous to human life.” § 13A-6-2(a)(3), Ala.Code 1975.

Twenty years after Conway was decided, this Court, in Ex parte Mitchell, 936 So.2d 1094 (Ala.Crim.App.2006), first considered the breadth of the felony-clearly-dangerous-to-human-life element of felony murder when an unenumerated felony underlies that charge. This Court recognized that in 1977 the legislature “increased the number of felonies that could serve as the basis for felony murder and added the additional proviso to § 13A-6-2(a)(3): ‘or any other felony clearly dangerous to human life....’” Id. at 1101. This Court adopted a “fact-based approach” to determine if a felony is “clearly dangerous to human life.” Id. Under that approach, “ ‘the trier of fact [is] to consider the facts and circumstances of the particular case to determine if such felony was inherently dangerous in the manner and the circumstances in which it was committed Ex parte Mitchell, 936 So.2d 1094, 1101 (Ala.Crim.App.2006) (quoting State v. Stewart, 663 A.2d 912, 919 (R.I.1995)).

Under this Court’s decision in Mitchell, 936 So.2d at 1101, a person commits felony murder under § 13A-6-2(a)(3), Ala.Code 1975, if that person or another participant in the crime causes the death of any person during the commission of an enumerated felony or during the commission of an unenumerated “felony [that was committed in a manner that was] clearly dangerous to human life.” § 13A-6-2(a)(3), Ala.Code 1975. The fact that a felony is not enumerated in § 13A-6-2(a)(3), Ala.Code 1975, does not preclude its use to support a felony-murder conviction, provided the finder of fact determines that the underlying felony was “clearly dangerous to human life.” See Mitchell, 936 So.2d at 1101. Consequently, second-degree kidnapping may form the basis for a felony-murder conviction if the jury finds that “ ‘the manner ... in which it was committed’ ” was “ ‘inherently dangerous ....’” Mitchell, 936 So.2d at 1101 (quoting Stewart, 663 A.2d at 919).

Similarly, verdicts convicting a defendant of second-degree kidnapping and felony murder are not mutually exclusive. Regarding mutually exclusive verdicts, the Alabama Supreme Court has explained:

“Mutually exclusive verdicts are the result of two positive findings of fact that cannot logically coexist. In other words, it is legally impossible for the State to prove the elements of both crimes. In order to determine whether the guilty verdicts are mutually exclusive as a matter of law, the alleged underlying offenses or acts must be carefully scrutinized. The two guilty verdicts are not mutually exclusive if no element of one crime necessarily negates an element of the other.”

Heard v. State, 999 So.2d 992, 1004-05 (Ala.2007).

The relevant portion of § 13A-6-2(a)(3), Ala.Code 1975, defines “felony murder” as follows:

“[A] person commits the crime of murder if he or she ... commits or attempts to commit ... any ... felony clearly dangerous to human life and, in the course of and in furtherance of the crime that he or she is committing or attempting to commit, or in immediate flight therefrom, he or she, or another participant if there be any, causes the death of any person.”

Thus, Washington’s felony-murder conviction required proof that he or an accomplice caused the death of another person during the course of any felony that was clearly dangerous to human life. Section 13A-6-44(a), Ala.Code 1975, defines second-degree kidnapping, a class B felony, as the abduction of another person. “Abduct” is defined-as “[t]o restrain a person with intent to prevent his liberation by either ... [s]ecreting or holding him in a place where he is not likely to be found, or ... [u]sing or threatening to use deadly physical force.” § 13A-6-40(2), Ala.Code 1975. Neither the lack of a death nor the lack of dangerousness is an element of second-degree kidnapping; therefore, “no element of [felony-murder] necessarily negates an element of the [second-degree kidnapping].” Heard, 999 So.2d at 1004-05. Likewise, a felony abduction does not negate an element of felony murder; therefore, “no element of [second-degree kidnapping] necessarily negates an element of [felony murder].” Id. Consequently, verdicts convicting an individual of both second-degree kidnapping and felony murder are not mutually exclusive.

Here, Washington was convicted of both second-degree kidnapping and felony murder. The jury was specifically instructed that, to convict Washington of felony murder based on second-degree kidnapping, it had to find beyond a reasonable doubt that the manner in which the second-degree kidnapping was committed was clearly dangerous to human life. (R. 653.) Therefore, Washington’s conviction for second-degree kidnapping did not preclude a conviction for felony'murder, and the two convictions were not mutually exclusive. To the extent that this Court’s decision in Conway, 489 So.2d at 642, would hold otherwise, it is overruled.

Because Washington’s two convictions are not contrary to Alabama law or mutually exclusive, his argument is without merit. Therefore, this issue does not entitle him to any relief.

II.

The State concedes that Washington’s convictions for felony, murder and second-degree kidnapping violate double-jeopardy principles because the same kidnapping formed the basis for both convictions. This Court agrees.

It is well settled that an individual may not, consistent with the Double Jeopardy Clause of the Fifth Amendment to the Constitution of the United States, be convicted of felony murder and of the felony underlying the felony-murder conviction. See Jones v. State, 992 So.2d 76, 76 (Ala.Crim.App.2007) (holding that when the same burglary forms the basis for a felony-murder conviction and a burglary conviction, “convictions for both felony-murder and first-degree burglary violate double jeopardy principles”); Harris v. State, 854 So.2d 145, 152 (Ala.Crim.App.2002); Brooks v. State, 952 So.2d 1180, 1184 (Ala.Crim.App.2006). In such cases, a double-jeopardy violation occurs because the felony underlying the felony-murder conviction is a lesser-included offense of felony murder. See Brooks, 952 So.2d at 1184. It is also well settled that this type of “ ‘transgression ... implicates the trial court’s jurisdiction to render a judgment.’ ” Harris, 854 So.2d at 152 (quoting Borden v. State, 711 So.2d 498, 503 (Ala.Crim.App.1997), citing in turn Rolling v. State, 673 So.2d 812 (Ala.Crim.App.1995)).

Here, Washington was convicted of felony murder during a second-degree kidnapping and of second-degree kidnapping based on the same conduct. “Because the same [kidnapping] formed the basis for the felony-murder conviction and for the [second-degree-kidnapping] conviction, [Washington’s] convictions for both violated the principles of double jeopardy.” Harris, 854 So.2d at 152. Accordingly, the circuit court lacked jurisdiction to adjudicate Washington guilty of second-degree kidnapping. Therefore, this case must be remanded for the circuit court to vacate Washington’s conviction and sentence for second-degree kidnapping.

Based on the foregoing, Washington’s conviction and sentence for felony murder are affirmed. However, Washington’s see-ond-degree-kidnapping conviction is reversed and the cause is remanded with instructions for the circuit court to vacate that conviction and the corresponding sentence.

AFFIRMED IN PART; REVERSED IN PART; AND REMANDED WITH INSTRUCTIONS.

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


author: PER CURIAM.

text:
    Crystal SELLS, etc., Petitioner, v. CSX TRANSPORTATION, INC., Respondent.
    No. SC15-1639
    Supreme Court of Florida.
    [April 13, 2017]
    John S. Mills and Andrew D. Manko of The Mills Firm, P.A., Tallahassee, Florida, for Petitioner
    Andrew J. Knight, II, of Moseley Prich-ard Parrish Knight & Jones, Jacksonville, Florida; and Evan M. Tager and Michael B. Kimberly of Mayer Brown LLP, Washington, District of Columbia, for Respondent
    Jeffrey R. White of Center for Constitutional Litigation, P.C., Washington, District of Columbia, for Amicus Curiae American Association for Justice
    Daniel Saphire of Association of American Railroads, Washington, District of Columbia; and Wendy F. Lumish and Alina Alonso Rodriguez of Bowman and Brooke LLP, Miami, Florida, for Amicus Curiae Association of American Railroads
    Mark K. Delegal and Tiffany A. Roddenberry of Holland & Knight LLP, Tallahassee, Florida; and William W. Large of Florida Justice Reform Institute, Tallahassee, Florida, for Amicus Curiae Florida Justice Reform Institute
   PER CURIAM.

We initially accepted jurisdiction to review the decision of the First District Court of Appeal in Sells v. CSX Transportation, Inc., 170 So.3d 27 (Fla. 1st DCA 2015), based on express and direct conflict. See art. V, § 3(b)(3), Fla. Const. Upon further consideration, we conclude that jurisdiction was improvidently granted. Accordingly, we exercise our discretion and discharge jurisdiction.

It is so ordered.

LABARGA, C.J., and POLSTON, and LAWSON, JJ., concur.

CANADY, J., concurs in result.

PARIENTE, LEWIS, and QUINCE, JJ., dissent.


author: PER CURIAM. CANADY, J.,

text:
    IN RE: AMENDMENTS TO the RULES REGULATING THE FLORIDA BAR—RULES 11-1.3 AND 11-1.9 (BIENNIAL PETITION).
    No. SC16-1963
    Supreme Court of Florida.
    [April 13, 2017]
    John F. Harkness, Jr., Executive Director, William J. Schiflno, Jr., President, Michael J. Higer, President-elect, Gordon J. Glover, Young Lawyers Division President 2015-16, Lori S. Holcomb, Director, Division of Ethics and Consumer Protection, and Elizabeth Clark Tarbert, Ethics Counsel, The Florida Bar, Tallahassee, Florida, for Petitioner
   PER CURIAM.

This matter is before the Court for consideration of proposed amendments to the Rules Regulating the Florida Bar (Bar Rules). We have jurisdiction. See art. V, § 15, Fla. Const.

The Florida Bar (Bar) has filed its biennial petition proposing amendments to Bar Rules 11-1.3 (Requirements and Limitations) and 11-1.9 (Continuation of Practice Program After Completion of Law School Program or Graduation), regarding certified legal interns. Pursuant to Bar Rule 1-12.1(g), the Bar published- formal notice of its intent to file a petition recommending these amendments in The Florida Bar News. This notice was published on September 1, 2016, and allowed interested persons thirty days after the filing of the Bar’s petition to provide comments to the Court. No comments were filed with the Court.

BACKGROUND

In September 2003, The Florida Bar’s Special Board Committee to Study the Law School Practice Program (Committee) undertook the task of reviewing and studying Chapter 11 of the Rules Regulating the Florida Bar for the purpose of suggesting possible amendments to the rules governing the Law School Practice Program in order to address certain perceived shortcomings. See In re Amends. to R. Regulating Fla. Bar re Chapter 11 Task Force, 964 So.2d 690 (Fla. 2007). In June 2005, the Committee submitted three proposed revisions to Chapter 11 to the Court for its consideration, one of which was a proposal to amend rules 11-1.3 and 11-1.9 to require law school students and graduates wishing to participate in a certified legal intern program to apply for admission to The Florida Bar and obtain a letter- of initial clearance as to character and fitness from the Florida Board of Bar Examiners as a prerequisite to participation. Id. at 691. At that time, multiple comments were filed opposing this change; however, the Florida Board of Bar Examiners supported the amendments. Ultimately, the Court adopted a modified version of the proposal which required registration as a certified legal intern registrant and receipt of a “letter of clearance as to character and fitness from the Florida Board of Bar Examiners.” Id. at 692. This change was applied prospectively only to law school students entering a law school practice program on August 1, 2008, or later. Id. at 694. In its opinion, the Court stated:

Under the current versions of rules ll-1.3(a) and ll-1.9(b), the analysis of an applicant’s character and fitness has been the responsibility of the applicant’s law school dean and the agency or office where the applicant applies to serve. In the past, this has led to a wide disparity in the. quality and quantity of the background investigations conducted and very serious problems. Not surprisingly, this resulted in some persons being approved for participation who, because of disqualifying or other negative incidents in the past, should not have been accepted if the background information had been otherwise disclosed. Accordingly, we asked the Committee to propose an amendment which would provide a plan for a uniform and "high-quality background investigation to be conducted on every person prior to certification by this Court of authorization to become a certified intern for acceptance into a law school practice program or as a postgraduate certified legal intern.
We first address the proposed amendment to rule 11-1.3 (Requirements and Limitations) to add a new subdivision (a). The proposed amendment would require all law students who seek to be authorized as certified interns to complete and submit to the Board an application for admission to the Bar and to obtain an initial clearance letter from the Board as a prerequisite to participation in the program. See generally Fla. Bar Admiss. R. 2-21, 2-21.2 & 2-23.
We agree that the Board should be the entity to conduct the fitness and character screening of law students for participation in the certified intern program. The Board possesses the most experience in conducting background investigations designed to determine issues of character and fitness for the practice of law. It is the entity responsible for screening applicants for admission to the Bar to ensure the continued quality and character of those admitted to the practice of law in this state. It has established an impressive track record of success in this area over many years and has the staff and expertise to perform this function.
While we realize that students who seek to become certified interns are not attorneys and have not taken or passed the bar examination, we nevertheless believe these students, who actually provide legal representation to others under the supervision of members of The Florida Bar, must have the requisite character and fitness for eventual admission, either to the Bar of this state or other state bar of their choice. We repose our trust for the accomplishment of this purpose in the Board. Those certified actually provide legal representation to others, albeit under the supervision of a member of the Bar.

Id. at 691-92.

PROPOSED AMENDMENTS

The Bar now proposes amending rules 11-1.3 (Requirements and Limitations) and 11-1.9 (Continuation of Practice Program After Completion of Law School Program or Graduation), to allow a law student or graduate to become a certified legal intern after passing a Level 2 background investigation, a process which the Bar states can be completed in one to three weeks. The Bar states that the process under the current rule can take six to nine months. The proposal aims to expedite and streamline the process for law students and graduates to obtain initial clearance from the Florida Board of Bar Examiners in order to participate in certified legal intern programs. The proposal requires the law student to register with the Board as a certified legal intern registrant and .furnish his or her fingerprints to enable the Board to conduct a Level 2 background investigation. Under the proposal, the Board would conduct the investigation “as soon as possible after the law student submits the registration and appropriate fee” and “issue an initial letter of clearance to the law student if the results of the Level 2 background investigation do not demonstrate a lack of honesty, trustworthiness, diligence or reliability.” The Bar states that this process will ensure that the public is protected by confirming that the law student has a clear criminal history before being certified as a legal intern; it allows the law student to be certified in one to three weeks, rather than six to nine months; and it requires early application for admission to The Florida Bar.

According to the petition in this case, during development of the proposals, the Bar received several comments which noted that since the adoption of the current rule, participation in certified legal intern programs has significantly fallen due, at least in part, to the amount of time it takes for a registrant to receive clearance from the Florida Board of Bar Examiners. Also during the development of the proposals, the Board made its objections known to the Bar. The Board objected to the Bar’s proposals on several grounds. First, the Board disputed that under the current rule, clearance of individuals takes six to nine months; rather, the Board asserted that from October 2010 through September 2015, the average time ranged from approximately four to five and a half months. Second, the Board maintained that it is not possible to determine requisite character and fitness for eventual admission to The Florida Bar with just a Level 2 background check, especially when criminal conduct is only one of the fourteen areas of potentially disqualifying conduct the Board is required to consider under Rule of the Supreme Court Relating to Admissions to the Bar 3-12. Third, the Board contended that the standard to be met under the rule—i.e, that the Board will issue a letter of initial clearance “if the results of the Level 2 background investigation do not demonstrate a lack of honesty, trustworthiness, diligence, or reliability”—is very unclear. And finally, the Board contended that the amendments would have the unintended consequence of more law students delaying filing the student registration becáuse there would be no requirement to file an early application to obtain certification as a legal intern.

CONCLUSION

On balance, we conclude that the Bar’s proposal in this case is not an acceptable compromise between the position of the Florida Board of Bar Examiners—the entity in which we have reposed our trust to carry out the responsibility of screening the character and fitness of certified legal intern registrants—and the positions of the law schools and programs who rely on the participation of certified legal interns to help serve their clients. Although we are concerned that the current rule may have contributed to the reduced participation in certified legal intern programs, and we agree that this reduction in participation is detrimental to law students, law schools, and the programs themselves, we cannot place those interests, no matter how important, above our duty to ensure that the participating students and graduates, who actually provide legal representation under the supervision of members of The Florida Bar, possess the requisite character and fitness for eventual admission to the practice of law, either in this state or another state of their choice. For this reason, we decline to adopt the proposed amendments at this time. The Florida Board of Bar Examiners and the law schools should continue to stress the benefits of participation and the need for early application to the various clinical and internship opportunities that are available. We strongly encourage law school students, to continue to participate in certified legal intern programs and to register early with the Florida Board of Bar Examiners in order to timely receive clearance under the current rules.

It is so ordered.

LABARGA, C J., and PARIENTE, QUINCE, POLSTON, and LAWSON, JJ., concur.

LEWIS, J., concurs in result.

CANADY, J., concurs in result with an opinion.

CANADY, J.,

concurring in result.

I agree that we should not adopt the proposed rule changes. But I would refer the matter back to the Bar for the development of a proposal that would shift responsibility for providing letters of clearance for certified legal interns from the Board of Bar Examiners to the Bar itself. I believe that the public interest can be adequately protected through the suggested Level 2 background investigation coupled with supervision of interns by members of The Florida Bar. And I believe that this approach can most appropriately be implemented by the Bar.