author: MOORE, Judge. THOMPSON,

text:
    Melvin Henry SUTTON v. Donna Peggy SUTTON.
    2150051.
    Court of Civil Appeals of Alabama.
    Aug. 19, 2016.

      Lindsey Mussleman Davis of Holt, Mus-sleman, Morgan & Alvis, Florence, for appellant.
    Carla Putman Maples, Florence, for ap-pellee.
   MOORE, Judge.

Melvin Henry Sutton (“the husband”) appeals from a judgment of the Lauder-dale Circuit Court (“the trial court”) divorcing him from Donna Peggy Sutton (“the wife”) to the extent that the judgment awarded the wife alimony and a portion of his retirement accounts. We reverse the trial court’s judgment.

On August 25, 2014, the wife filed a complaint seeking a divorce from the husband. The husband answered the wife’s complaint and counterclaimed for a divorce on September 11, 2014. Following a hearing on August 5, 2015, the trial court entered a final judgment of divorce on August 18, 2015, divorcing the parties on the ground of adultery committed by the husband. The trial court awarded the marital residence and a vehicle to the wife and awarded two vehicles, a camper trailer, and a boat to the husband. In its judgment, the trial court also awarded the wife “$70,000.00 of the vested balance of the husband’s International Paper JP Morgan 401 (k) Savings Plan.” The husband was ordered to pay to the wife $1,750 per month as periodic alimony, to name the wife as a beneficiary on his pension and life insurance, and to pay $4,000 of the wife’s attorney’s fees. The husband filed a postjudgment motion on September 2, 2015; that motion was denied the next day. The husband timely appealed to this court.

The husband argues on appeal that the trial court erred in its division of the marital assets, including his 401(k) savings-plan account, and in its award of periodic alimony to the wife.

“Tn reviewing a trial court’s judgment in a divorce case where the trial court has made findings of fact based on oral testimony, we are governed by the ore tenus rule. Under this rule, the trial court’s judgment based on those findings will be presumed correct and will not be disturbed on appeal unless it is plainly and palpably wrong. Hartzell v. Hartzell, 623 So.2d 323 (Ala.Civ.App.1993). Matters of alimony and property division are interrelated, and the entire judgment must be considered in determining whether the trial court abused its discretion as to either of those issues. Willing v. Willing, 655 So.2d 1064 (Ala.Civ.App.1995).’ ”

Underwood v. Underwood, 100 So.3d 1115, 1116 (Ala.Civ.App.2012) (quoting Langley v. Langley, 895 So.2d 971, 973 (Ala.Civ.App.2003)).

With regard to the division of the husband’s 401(k) savings-plan account, the record shows that the husband and the wife married in 1976. The husband began working at International Paper Company in 1978 and was still working for that company at the time of trial. As part of his employment, the husband enrolled in a “Retiree Medical Savings Program,” and, as a participant in the program he was assigned an account (“the RMSP account”). The husband testified that, once he retired, the funds in the RMSP account could be used only to periodically pay for his health-insurance premiums. In regard to the RMSP account, the wife testified as follows:

“[Counsel for the wife]: It is your understanding that this fund, [the RMSP account] cannot be divided with you? “[The wife]: Right. It is his.
“[Counsel for the wife]: And it can only be used for medical insurance for him, but it will keep him from having to pay it when he retires?
“[The wife]: Yes.”

The wife introduced into evidence an exhibit in which she indicated that the husband should receive the entirety of the RMSP account. The RMSP account contained a “vested balance” of $7,056.42 and a total balance of $24,869.51 on September 30, 2014, and a “vested balance” of $7,784.74 and a total balance of $27,498.31 on June 30, 2015.

Also, as part of his fringe benefits with International Paper Company, the husband enrolled in a 401(k) “savings plan” managed by JP Morgan Retirement Plan Services. The 401(k) savings-plan account contained an ending balance of $115,241.09 on September 30, 2014, and an ending balance of $119,566.84 on June 30, 2015. Additionally, the husband was earning a pension through which he was projected to draw $1,973.13 per month if he retired at age 62. The wife testified that she wanted $75,000 from the 401(k) savings-plan account, which she acknowledged was more than half of the amount contained therein.

In Paragraph 7 of the final judgment, the trial court set out:

“7. FINANCIAL ASSETS.' The wife is awarded $70,000.00 of the vested balance of the husband’s International Paper JP Morgan 401(k) Savings Plan. The husband is awarded the remainder of the vested balance of the International Paper JP Morgan 401(k) Savings Plan and the vested balance of his International Paper [RMSP] Fund....
“The husband shall name the wife as irrevocable survivor beneficiary on the husband’s pension with International Paper such that she would draw a survivor’s benefit upon husband’s death should she survive the husband.... ”

In his postjudgment motion, which the trial court summarily denied, the husband asserted that the trial court had divided his 401 (k) savings-plan account inequitably by awarding the wife “more than one-half of the husband’s retirement savings.” The husband reiterates that argument on appeal.

Section 30-2-51(b), Ala.Code 1975, provides: .

“The judge, at his or her discretion, may include in the estate of either spouse the present value of any future or current retirement benefits, that a spouse may have a vested interest in or may be receiving on the date the action for divorce is filed, provided that the following conditions are met:
“(1) The parties have been married for a period of 10 years during which the retirement was being accumulated.
“(2) The court shall not include in the estate the value of any retirement benefits acquired prior to the marriage including any interest or appreciation of the benefits.
“(3) The total amount of the retirement benefits payable to the non-covered spouse shall not exceed 50 percent of the retirement benefits that may be considered by the court.”

In this case, it is undisputed that the parties were married for more than 10 years and that no part of the husband’s 401(k) savings-plan account was earned before the marriage, so the requirements of § 30-2—51(b)(1) and (2) are clearly satisfied. The husband contends, however, that the trial court erred in awarding the wife more than 50% of his vested retirement benefits in violation of § 30—2—51 (b)(3).

Section 30—2—51(b)(3) authorizes an award to a noncovered spouse of no more than 50% of a covered spouse’s “vested interest” in “retirement benefits.” In their arguments, the parties treat both the 401(k) savings-plan account and the RMSP account as “retirement benefits,” as did the trial court, so we will also consider both accounts as “retirement benefits” within the purview of § 30-2-51(b). The evidence in the record shows that the husband had a “vested interest” in the RMSP account of $7,056.42 on September 30, 2014, and a “vested interest” in the RMSP account of $7,784.74 on June 30, 2015. The evidence in the record demonstrates that the husband had a “vested interest” in the 401(k) savings-plan account of $115,241.09 on September 30, 2014, and a “vested interest” in the 401(k) savings-plan account of $119,566.84 on June 30, 2015. Using the largest figures, the total amount of vested retirement benefits that could have been divided between the parties was $127,351.58. The award to the wife of $70,000 from the 401(k) savings-plan account exceeds 50% of that total in violation of § 30—2—51(b)(3).

In defending the award, the wife argues that the RMSP account had a “total value” of $24,869.51 on September 30, 2014, and a “total value” of $27,498.31 on June 30, 2015. Using those figures, the wife argues that the “total amount” of the RMSP account and the 401 (k) savings-plan account exceeds $140,000 and that, therefore, the trial court did not violate § 30-2-51(b)(3) by awarding her $70,000 of those retirement benefits. However, as the plain language of § 30-2-51(b) dictates, the trial court could divide only those retirement benefits in which the husband has a “vested interest.” The wife’s own evidence indicates that the husband did not have a vested interest in the total amount of the RMSP account. Thus, the trial court erred to the extent it considered that portion of the RMSP account in which the husband did not have a vested interest.

In Tompkins v. Tompkins, 843 So.2d 759 (Ala.Civ.App.2002), this court reversed a judgment to the extent that it awarded to the former wife more than 50% of the former husband’s individual-retirement account based on the failure of the trial court to comply with § 30-2-51(b)(3). Id. at 762. Similarly, in this case, the judgment of the trial court must be reversed because the trial court violated § 30-2-51(b)(3) by awarding the wife more than 50% of the husband’s vested retirement benefits.

As previously stated, a trial court’s division of marital assets and its award of periodic alimony are interrelated and must be considered together. Underwood, 100 So.3d at 1116. Because we have concluded that the trial court erred in its award to the wife of more than 50% of the husband’s vested retirement benefits, in accordance with Underwood, 100 So.3d at 1116, we must also reverse the trial court’s judgment with regard to its division of the remainder of the marital property and its award of periodic alimony to the wife. See also Brattmiller, 975 So.2d at 362-63. The cause is remanded for the trial court to reconsider its division of the retirement benefits, its property division, and its award of periodic alimony in compliance with this opinion.

REVERSED AND REMANDED WITH INSTRUCTIONS.

PITTMAN and DONALDSON, JJ., concur.

THOMPSON, P.J., concurs in the result, with writing.

THOMAS, J., concurs in the result, without writing.

THOMPSON,

Presiding Judge, concurring in the result.

Melvin Henry Sutton (“the husband”) has argued that the trial court erred in its division of retirement benefits, even when the amount of his “vested interests,” as those values are set forth in the financial-account statements submitted into evidence, in both the 401(k) savings-plan account and in RMSP account are considered in determining the amount of those benefits awarded to the Donna Peggy Sutton (“the wife”). The testimony of the wife on direct examination and in response to the husband’s cross-examination clearly demonstrates that the wife sought an award of one-half of all of the husband’s retirement benefits accumulated during the parties’ marriage. The wife specifically disputed, on cross-examination, the husband’s attorneys questions that she was seeking more than one-half of the husband’s retirement benefits. The husband’s attorney pointed out that the amount the wife was requesting amounted to more than one-half of the value of the husband’s 401(k) savings-plan account. The wife responded, albeit inart-fully, that she disagreed that she was entitled to only a portion of the value of the 401(k) savings-plan account and that she was seeking to offset the valuation of the husband’s RMSP account, which, under its terms, must stay in his name, by a greater award from the 401 (k) savings-plan account.

It is clear from the record that the wife sought a division of the total value of the retirement benefits accumulated during the parties’ marriage, as permitted by § 30-2-51, Ala.Code 1975. The wife sought an award of one-half of the approximate $115,000 value of the 401(k) savings-plan account plus one-half of the approximate $25,000 value of the RMSP account. The trial court awarded the wife “$70,000 of the vested balance of the husband’s ... 401(k) Savings Plan,” and it awarded the husband “the remainder of the vested balance of the ... 401(k) Savings Plan and the vested balance of his ... [RMSP] Fund.” Section 30-2-51 (b) provides that, in fashioning a property division, a trial court “may include, in the estate of either spouse the present value of any future or current retirement benefits, that a spouse may have a vested interest in....” (Emphasis added.) I believe that the trial court, because it awarded the wife $70,000, which is approximately one-half of the total value of the husband’s retirement benefits, intended to divide those benefits approximately evenly according to the actual values of those accounts, rather than according to the husband’s “vested interest” in those accounts, as the term “vested interest” is defined on the financial statements for the retirement accounts. Regarding the RMSP account, the parties, based on the financial statements, had defined the “vested” amount of that account as the amount the husband had paid into the account; that amount represents the amount the husband would presumably receive if he elected to liquidate the account rather than take advantage of its future benefits. The term “vested” can also mean that the husband’s interest in the future value of the benefits of that account is secure; I note that the husband is entitled to receive benefits even in excess of the amount he has paid into the account, and, therefore, the value of the account to the husband was the amount the wife sought to have considered for division.

The trial court specified in its judgment that it was awarding the parties the “vested” portions of the husband’s retirement accounts rather than the actual value of those accounts. It is probable that, in using the term “vested,” the trial court intended to reference the security of the husband’s rights in the retirement accounts as opposed to the valuations that were referenced as “vested” amounts on the account statements. To assume otherwise is to presume that the trial court erred by violating § 30-2-51, and I do not presume such error on the part of the trial court. See Roberson v. C.P. Allen Constr. Co., 50 So.3d 471, 478 (Ala.Civ.App.2010) (“ ‘ “[T]his court will not presume ... error on the part of the trial court.” ’ ”) (quoting D.C.S. v. L.B., 4 So.3d 513, 521 (Ala.Civ.App.2008), quoting in turn G.E.A. v. D.B.A., 920 So.2d 1110, 1114 (Ala.Civ.App.2005)).

However, because the trial court used the specific term “vested interest,” I concur in the result reached by the main opinion—namely, to reverse the judgment and to remand the cause to the trial court to correct its property division or to enter a new property division and reconsider its award of alimony.

      . The husband also argues that the wife failed to prove the present value of the divisible retirement benefits. However, the husband did not make that argument at trial, see Andrews v. Merritt Oil Co., 612 So.2d 409, 410 (Ala.1992) (“[An appellate court] cannot consider arguments raised for the first time on appeal; rather, [an appellate court’s] review is restricted to the evidence and arguments considered by the trial court.”), and, as discussed infra, the record belies that contention.

      . Both parties exclude the husband’s pension from their calculations, probably because the wife did not present any evidence as to the present value of the pension. See Brattmiller v. Brattmiller, 975 So.2d 359 (Ala.Civ.App.2007) (holding that trial court cannot include retirement benefits in marital estate subject to property division absent proof of present value).

      . The record contains no valuation of any of the accounts as of August 25, 2014, the date of the filing of the divorce complaint, but, based on the husband's brief, we use the figures from September 30, 2014, as accurately reflecting the values on August 25, 2014.

      . To the extent that it might be concluded that the wife disclaimed an interest in the RMSP account by virtue of her acknowledgment that the husband was the only person who could receive benefits from that account, I disagree. The record establishes that the wife clearly asserted a claim for one-half of the value all of the husband’s retirement benefits accumulated during the parties' marriage and that she was not waiving a claim to a portion of the funds in the RMSP account.

      . The wife’s testimony was not consistent with regard to the valuations of the retirement-benefits accounts, as demonstrated by the exhibits in the record. Her valuations are close enough to the values reflected on the exhibits, however, that her testimony is clear.

      . The term "vested” is defined as
      "Waving become a completed, consummated right for present or future enjoyment; not contingent; unconditional; absolute <a vested interest in the estates*.
      " '[Ujnfortunately, the word "vested” is used in two senses. Firstly, an interest may be vested in possession, when there is a right to present enjoyment, e.g. when I own and occupy Blackacre. But an interest may be vested, even where it does not carry a right to immediate possession, if it does confer a fixed right of taking possession in the future.’ George Whitecross Paton, A Textbook of Jurisprudence 305 (G.W. Paton & David P. Derham eds., 4th ed.1972).
      " ‘A future interest is vested if it meets two requirements: first, that there be no condition precedent to the interest's becoming a present estate other than the natural expiration of those estates that are prior to it in possession; and second, that it be theoretically possible to identify who would get the right to possession if the interest should become a present estate at any time.’ Thomas F. Bergin & Paul G. Haskell, Preface to Estates in Land and Future Interests 66-67 (2d ed.1984).”

        Black's Law Dictionary 1794 (10th ed.2014).


source: Caselaw Access Project

author: THOMPSON, Presiding Judge.

license: Public Domain

text:
    Calvin LACKEY, Jr. v. Christa Dianne LACKEY.
    2150221.
    Court of Civil Appeals of Alabama.
    Aug. 19, 2016.
    Jake B. Mathews, Jr., Anniston, for appellant.
    Ronald S. Held of Sides, Oglesby, Held, Dick & Stephens, LLC, Anniston, for ap-pellee.
   THOMPSON, Presiding Judge.

Calvin Lackey, Jr. (“the father”), appeals from a judgment of the Calhoun Circuit Court (“the trial court”) denying his request to modify his child-support obligation and ordering him to pay $2,450 to Christa Dianne Lackey (“the mother”) for child-support arrearages. In the judgment, among other things not relevant to this appeal, the trial court also denied the mother’s petition seeking to hold the father in contempt based on his failure to pay child support. The mother did not cross-appeal.

The record indicates the following. The mother and the father were married in 2006, and two children were born during the marriage. The trial court divorced the parties by a judgment entered on November 12, 2013. In the divorce judgment, which incorporated an agreement of the parties, the father was ordered to pay monthly child support of $350. At the time the divorce judgment was entered, the father said, he had been laid off from work and was unemployed. Nonetheless, he said, he agreed to the amount of child support ordered in the judgment.

The father obtained employment shortly after the divorce judgment was entered. He testified that he injured his back lifting heavy boxes while at work in September 2014, and he has not woi-ked since November 2014. The father has filed a workers’ compensation action against his employer; the record reflects that that action remained pending throughout the child-support-modification action. The father presented evidence, including medical records, to support his contention that he has two bulging discs and one torn disc and that he continues to have pain as a result of his back injury. He said that he has received epidural steroid blocks but that they do not relieve his pain. He also testified to the physical limitations his injury has caused.

On February 13, 2015, the father filed the petition seeking a suspension or modification of his child-support obligation based on his inability to work because of the back injury. At the hearing on the petition to modify, the father acknowledged that he had not made any child-support payments since filing his petition. On August 13, 2015, after the evidentiary hearing, the trial court entered a judgment finding that the father was unemployed when he entered the agreement to pay $350 a month in child support and that he was unemployed at the time he filed his petition for a suspension or modification of child support. The trial court then denied the father’s petition “due to lack of proof.” The trial court did not elaborate on the basis for its denial of the petition. The father filed a timely motion to alter, amend, or vacate the judgment in which he argued that the trial court had erred in denying his petition because, he said, he is now unable to work because of his back injury. The trial court denied the post-judgment motion. The father filed a timely notice of appeal.

The father contends that, because of his back injury, his ability to earn has been “impaired” since the initial establishment of his child-support obligation. Although he was unemployed at the time he agreed to pay $350 a month in child support, the father said, that agreement was based on his anticipation that he would obtain employment and be able to pay the required child support. Now, the father says, he is unable to work or obtain employment because of the pain he has as a result of the injury and because of the physical restrictions placed on him. The father contends that the difference between being unemployed but able to work and being unemployed and physically unable to work constitutes a material change in circumstances warranting the requested modification.

“ ‘An award of child support may be modified only upon proof of a material change of circumstances that is substantial and continuing. Browning v. Browning, 626 So.2d 649 (Ala.Civ.App.1993). The parent seeking the modification bears the burden of proof. Cunningham v. Cunningham, 641 So.2d 807 (Ala.Civ.App.1994). Whether circumstances justifying modification of support exist is a matter within the trial court’s discretion. Id. We will not disturb the trial court’s decision on appeal unless there is a showing that the trial court abused that discretion or that the judgment is plainly and palpably wrong. Id.; Douglass v. Douglass, 669 So.2d 928, 930 (Ala.Civ.App.1995).’
“Romano v. Romano, 703 So.2d 374, 375 (Ala.Civ.App.1997). ‘This court has held that “‘[t]he standard for determining changed circumstances is the increased needs of the child and the ability of the parent to respond to those needs.’ ” ’ Jones v. Jones, 101 So.3d 798, 803 (Ala.Civ.App.2012) (quoting Allen v. Allen, 966 So.2d 929, 932 (Ala.Civ.App.2007), quoting in turn Coleman v. Coleman, 648 So.2d 605, 606 (Ala.Civ.App.1994)).”

Broadway v. Broadway, 184 So.3d 376, 385-86 (Ala.Civ.App.2014). However, “a trial court’s ‘discretion is not unbridled,’ and that court ‘is not at liberty to ignore the undisputed evidence concerning a parent’s ability to pay.’ State ex rel. Smith v. Smith, 631 So.2d 252, 254 (Ala.Civ.App.1993).” Poh v. Poh, 64 So.3d 49, 58 (Ala.Civ.App.2010).

The trial court’s judgment refusing to suspend or modify the father’s child-support obligation appears to be based on a determination that, because the father was unemployed at the time he agreed to pay child support and was again unemployed at the time he filed his petition to modify, there is a “lack of proof’ of a material change in circumstances warranting modification. However, the judgment is not clear that the trial court meant there was a lack of proof demonstrating a material change of circumstances. We note that the trial court declined to hold the father in contempt for his failure to make child-support payments after filing his modification petition “due to [his] injury and his pending workers’] compensation action.” Thus, it appears that the trial court believed the father’s assertion that he is unable to work to be true.

This court agrees with the father that there is a difference between being unemployed because of being laid off from a previous job but still being able and willing to work and being unemployed because of an injury that prevents one from physically being able to work or obtain employment. At the time the father agreed to pay child support, he was actively seeking a job, and, in fact, the evidence shows, he did find employment. However, the father contends that, when he filed his modification petition, he was unable to work and that he will not be able to obtain employment in his present condition. Thus, if the trial court found the father’s evidence credible, the father has presented evidence demonstrating an inability to pay his child-support obligation. A parent’s inability to pay is a factor the trial court must consider when determining child support. Poh, 64 So.3d at 58.

As the judgment is written, this court is unable to determine what the trial court concluded the father failed to prove, i.e., whether he failed to prove that he is unable to work, whether he failed to prove that he does not have sufficient income from any source to pay child support, see Rule 32, Ala. R. Jud. Admin., whether he failed to prove the existence of a material change in circumstances, or whether he failed to prove any other ground that would justify denying the modification petition. Accordingly, we reverse the judgment and remand the cause to the trial court for it to clarify the basis for its judgment. If the trial court determines that the father has failed to prove a material change in circumstances on the basis that he was unemployed at the time the divorce judgment was entered and was also unemployed at the time he filed his modification petition, the trial court is instructed to consider the father’s ability to pay child support and to enter a judgment accordingly. See Poh, supra. We note that whether a modification of a child-support obligation should be made retroactive to the date the petition was filed is a decision left to the sound discretion of the trial court. Volovecky v. Hoffman, 903 So.2d 844, 850 (Ala.Civ.App.2004). Thus, on remand, if the trial court suspends or modifies the father’s child-support obligation, it is also instructed to consider whether the modification should be retroactive to the date the father filed the petition to modify.

REVERSED AND REMANDED WITH INSTRUCTIONS.

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


author: KELLUM, Judge.

text:
    Eugene Lee JONES v. STATE of Alabama.
    CR-14-1332.
    Court of Criminal Appeals of Alabama.
    April 29, 2016.
    Rehearing Denied May 13, 2016.
    Certiorari Denied Aug. 12, 2016 Alabama Supreme Court 1150880.

      Charlie Andrew Bottoms, Jr., Florence, for appellant.
    Luther Strange, atty. gen., and Laura I. Cuthbert, asst. atty. gen., for appellee.
   On Application for Rehearing

KELLUM, Judge.

This Court’s opinion issued on February 12, 2016, is withdrawn, and the following is substituted therefor.

The appellant, Eugene Lee Jones, was indicted by a Lauderdale County grand jury for murder, see § 13A-6-2, Ala.Code 1975. Following a trial by jury, Jones was convicted of the lesser-included offense of manslaughter. The circuit court sentenced Jones as a habitual felony offender to life imprisonment and ordered Jones to pay $3,485 in restitution, $50 to the crime victims compensation fund, and court costs.

The evidence presented at trial established the following pertinent facts. On July 25, 2013, Jones and Lula Addison drank and smoked crack together. Beginning at approximately 9 a.m. and continuing throughout the day, Jones and Addison made numerous purchases at a shop called the “Store and Deli.” Video surveillance showed Jones and Addison buying liquor, beer, Brillo brand scouring pads, and a crack pipe. Around 11:15 a.m., Jones, Addison, her son, and her son’s girlfriend drove to a crack house on Red Bud Street to purchase drugs.

During the morning, Jones checked into room 317 of the City Lodge Hotel in Florence. Addison’s daughter, Lasonia Williams, was working at the hotel as a housekeeper on July 25, 2018. While at the hotel working that day, Williams briefly spoke to Addison before Addison and Jones went into room 317. Williams testified that Addison seemed to be happy and “buzzed” when she spoke to her. (R. 274.) That night, shortly after 8:30 p.m., Addison entered a convenience store, then got into a car with Raphael Glen to return to the crack house to purchase more drugs. Glen then returned Addison to the hotel.

Four days later, on July 29, 2013, Williams was cleaning rooms at the hotel when she “smelled a bad smell” in room 316. (R. 265.) Williams telephoned Peru-late Patel, the hotel owner, who helped Williams investigate the location of the bad smell. Patel and Williams tracked the smell to room 317—the room Addison and Jones had shared. When Patel lifted up the mattress, she discovered a dead body and telephoned the police.

Sgt. Craig Blasingame with the Florence Police Department arrived at the City Lodge Hotel in response to a call for “suspicion of a possible something underneath the hotel bed in Room 317” and what was believed to be a human body. (R. 252.) Sgt. Blasingame lifted the mattress and box springs off of the bed frame and discovered a dead woman. Sgt. Blasingame confirmed that the body under the bed was Addison. The coroner testified that Addison’s body was in a state of decomposition as the body was bloated and layers of skin had begun to separate. Addison’s body was lodged under metal bed rails, one of which was placed across her neck. Sgt. Blasingame testified that there was no sign of a struggle in the hotel room.

During the investigation into Addison’s death, Jones made two statements to law-enforcement officials. On July 29, 2013, Jones went to the district attorney’s office after finding out that he was a suspect in Addison’s death. After waiving his Miranda rights, Jones gave a statement to police. In his first statement, Jones said that he met Addison, bought and smoked some crack cocaine with her, and then rented a room at the City Lodge Hotel with her. Jones told police that he and Addison went to a restaurant to get something to eat before they returned to the hotel room. While they were at the restaurant, Addison ran into a man whom Jones could not identify. Addison told Jones that the man wanted to have sex with her for money and that she wanted to use the hotel room in order to “turn a trick.” (R. 529.) Jones stated that he agreed and left the room. When Jones returned, the door to the room was ajar and Addison was not in the room.

After approximately two hours of questioning, Jones asked for an attorney, stating: “I know where this is going. I need a lawyer. I came here on my own free will.” (R. 216.) Officer Gerald Pearson, who was leading the questioning, immediately stopped questioning Jones about Addison’s murder. Jones was not provided with a lawyer at that time. After Jones invoked his right to counsel and the questioning ended, Officer Pearson offered to give Jones a ride to the Salvation Army shelter facility. However, before Officer Pearson could give Jones a ride, Officer Pearson learned that there was an arrest warrant for Jones from Bessemer stemming from what Officer Pearson believed was a drug-paraphernalia charge. At that point, Jones was taken into police custody and was transferred from Florence to Bessemer. Jones was subsequently released from custody in Bessemer once his case concluded. While in Bessemer, Jones was arrested again on a warrant obtained by Officer Pearson charging Jones with a burglary that occurred in Florence, Jones was subsequently transported back to Florence.

On October 7, 2013, Jones met with Marty Leeth, an agent with the Federal Bureau of Investigation. After waiving his Miranda rights, Jones gave a second statement to law-enforcement officials in which he claimed, as he did in his first statement, that he and Addison had bought and smoked some crack cocaine and had rented a hotel room. Jones, however, stated that when he and Addison returned from the restaurant, they both took off their clothes and got into bed. Suddenly, they heard a knock at the door and Addison jumped up to investigate. When Addison opened the door, a man forced his way into the room and robbed Jones at gunpoint. After the robbery, Addison grabbed her belongings and attempted to leave the room. Jones believed that Addison had set him up to get robbed and tried to lock the door to prevent Addison from leaving the room. According to Jones, he and Addison struggled and he threw Addison on the bed. When Addison “popped right back up,” Jones grabbed her from behind with his left arm around her neck and held her until she stopped moving. (R. 568.) Jones then laid Addison down on the bed after she passed out and discovered that Addison was dead. Jones left the hotel room and walked until daybreak, at which time he returned to the hotel room and put Addison’s body under the bed. Jones then left the hotel and returned again to get his wallet from the room.

Addison’s toxicology report showed the presence of cocaine and levamisole, a drug used to rid animals of parasites. Justin Sanders, a toxicologist with the Alabama Department of Forensic Sciences, testified that levamisole is sometimes used to “cut” crack cocaine. (R. 456.) Based on the toxicology results, Sanders testified that Addison had smoked crack cocaine “cut” with levamisole. According to Sanders, high amounts of levamisole can be lethal. The toxicology report did not indicate how much of the drug was present in Addison’s system. Sanders testified that when cocaine and alcohol are used together, the body generates cocaethylene, a dangerous chemical that can cause sudden death.

Dr. Valerie Green, a medical examiner for the Alabama Department of Forensic Sciences, testified that a toxicology analysis of Addison’s liver revealed a blood-alcohol level of 0.106. Dr. Green stated that the level of alcohol in Addison’s blood meant that she was “somewhat impaired” but that it was not considered a “fatal level of ethanol in the body.” (R. 672.) Dr. Green confirmed the presence of cocaine, cocaethylene and levamisole in Addison’s body but testified that the drugs were not the cause of Addison’s death. According to Dr. Green, Addison’s death was the result of asphyxia due to strangulation. Dr. Green testified that Addison’s trachea was fractured and that the muscles in her neck had hemorrhaged—both signs of strangulation. Dr. Green testified that Addison was alive when she was strangled.

After both sides had rested and the circuit court had instructed the jury on the applicable principles of law, the jury found Jones guilty of the lesser-included offense of manslaughter. Jones timely filed a motion for a new trial, which the circuit court denied. This appeal followed.

I.

Jones contends that the circuit court erred by denying his motion for a mistrial made during voir dire. Specifically, Jones contends that statements made by prospective Juror P.H. in the presence of other members of the jury venire “tainted” the jury and ultimately compromised its verdict. (Jones’s brief, p. 23.)

The record indicates that during voir dire the prosecutor asked prospective jurors whether a family member or close friend had ever been the victim of murder or any violent crime. P.H. informed the court that her father “was killed in a car wreck by a young man who decided to do drugs before he drove that morning.” (R. 83.) P.H. informed the court that the defendant pleaded guilty to manslaughter and “received ten years. Two in the prison system, three house arrest with ankle monitor, work privileges, five years probation for a ten year sentence.” (R. 83-84.) When asked if she felt “let down by the court system,” P.H. responded in the affirmative but stated that she thought that she could be fair to both sides. Jones subsequently moved for a mistrial based on P.H.’s response, arguing:

“I’m moving for a mistrial, the reason being is [P.H.], she referred to the charge of manslaughter then proceeded to tell what the punishment was. I think that taints the whole jury. Manslaughter is going to be an option in this case that they can convict him of that, you know, some of these people are going to say well that’s all he can get. Well manslaughter with no priors is two to twenty. With his priors it can be more than that so I feel like it’s going to be unfair for him because now all these people are going to think well we can’t convict him of manslaughter. He’s going to get just a small amount of time and that’s not the case so that’s why I’m moving for a mistrial. You know, a lot of times when we have a jury trial I seen them knock and have the note what the punishment would be. We can’t— they can’t be instructed on that. I feel like they’ve already got some instruction on what punishments could be. I think it’s tainted the venire and any jury that he would get and move for a mistrial.”

(R. 153-54.) P.H. was subsequently struck for cause before trial.

“ ‘A mistrial is a drastic remedy that should be used sparingly and only to prevent manifest injustice.’ Hammonds v. State, 777 So.2d 750, 767 (Ala.Crim.App.1999)(citing Ex parte Thomas, 625 So.2d 1156 (Ala.1993)), aff'd, 777 So.2d 777 (Ala.2000). A mistrial is the appropriate remedy when a fundamental error in a trial vitiates its result. Levett v. State, 593 So.2d 130, 135 (Ala.Crim.App.1991). ‘The decision whether to grant a misted rests within the sound discretion of the trial court and the court’s ruling on a motion for a mistrial will not be overturned absent a manifest abuse of that discretion.’ Peoples v. State, 951 So.2d 755, 762 (Ala.Crim.App.2006).”

Peak v. State, 106 So.3d 906, 915 (Ala. Crim.App.2012).

Further, the Alabama Supreme Court has held that a “mistrial is an extreme measure that should be taken only when the prejudice cannot be eradicated by instructions or other curative actions of the trial court.” Ex parte Lawrence, 776 So.2d 50, 55 (Ala.2000)(citing Nix v. State, 370 So.2d 1115, 1117 (Ala.Crim.App.1979), cert. denied, 370 So.2d 1119 (Ala.1979)).

In the instant case, Jones has not alleged, much less shown, that the venire was tainted with prejudice when P.H. referenced a manslaughter conviction for which the defendant received a 10-year sentence. Instead, Jones speculates, as he did when he moved for a mistrial, that “some of the jurors might have wanted to acquit” and that “some might have wanted to convict [Jones] of criminally negligent homicide.” (Jones’s brief, p. 24.) Furthermore, after the parties finished presenting evidence the circuit court instructed the jury regarding the applicable principles of law. It is presumed that the jury followed the circuit court’s instructions. See Calhoun v. State, 932 So.2d 923, 965 (Ala.Crim.App.2005)(“We presume that the jury follows the circuit court’s instructions.”). Therefore, we cannot say that the circuit court abused its discretion in denying Jones’s motion for a mistrial.

II.

Jones next contends that the circuit court erred by denying his motion to suppress two statements he made to police. Specifically, Jones contends that after he invoked his right to counsel when he gave his first statement to police on July 29, 2013, the State had no right to question him on October 7, 2013, without first providing him an attorney, and that his October 7, 2013, confession to police was the result of coercion and/or deception. Jones relies on Edwards v. Arizona, 451 U.S. 477, 101 S.Ct. 1880, 68 L.Ed.2d 378 (1981), in support of his contention on appeal.

At the hearing on the motion to suppress, the circuit court considered the following evidence before denying Jones’s motion. On July 29, 2013, police responded to a call after a dead body was found under a bed at the City Lodge Hotel in Florence. The police confirmed that the deceased was Lula Addison. During the investigation into Addison’s death, Jones made two statements to law-enforcement officials. On July 29, 2013, Jones voluntarily went to the district attorney’s office after finding out that he was a suspect in Addison’s death. Officer Pearson learned of Jones’s presence and went to the district attorney’s office to discuss the murder with Jones. After Officer Pearson learned from Jones that Jones had been with Addison shortly before her death, Officer Pearson asked Jones to accompany him to the police department to talk with him about the case. Jones agreed. According to Officer Pearson, Jones was not under arrest at that time. Once at the police station, Jones was advised of, and waived, his Miranda rights. Jones then gave a statement to police. After approximately two hours of questioning, Jones asked for an attorney, stating: “I know where this is going. I need a lawyer. I came here on my own free will.” (R. 216.) As noted earlier, Officer Pearson immediately stopped questioning Jones about Addison’s murder, but Jones was not provided with a lawyer at that time. Officer Pearson offered to give Jones a ride to the Salvation Army shelter facility, but, before he could give Jones a ride, Officer Pearson learned that there was an outstanding arrest warrant for Jones from Bessemer. Jones was taken into police custody and was transferred from Florence to Bessemer. Jones was subsequently released from custody in Bessemer once his case concluded but was arrested again in Bessemer on a warrant obtained by Officer Pearson charging Jones with a burglary that occurred in Florence. Jones was then transported back to Florence.

On October 7, 2013, Marty Leeth, a special agent with the Federal Bureau of Investigation and a polygraph examiner, was contacted by the Florence Police Department to administer a polygraph test to a suspect in Addison’s murder investigation, i,e., Jones. Jones was in police custody at the time. Jones was again advised of, and waived, his Miranda rights. Leeth told Jones that he had been asked to conduct a polygraph test to determine Jones’s involvement with Addison’s death. Jones informed Leeth that Jones did not have a lawyer but that his sister had told him that a lawyer had told her :to tell Jones not to submit to a polygraph test. Leeth agreed that Jones did not have to submit to a polygraph test, but Leeth informed Jones that they would continue in the form of an interview, and, according to Leeth, Jones agreed to be interviewed. Leeth testified that the beginning of the interview concerned Jones’s life history, but toward the end of the interview Leeth asked questions regarding Addison’s death. Jones was asked if he had anything to do with Addison’s death, and Jones said that he did not. Leeth then told Jones:

“If that’s the case you shouldn’t have any problem taking a polygraph examination or passing the polygraph examination if that’s what happened, and I said so would you be willing to take a polygraph examination regarding just— just going to keep it simple to those questions. He sort of threw up his hands and said something to the effect, ‘Screw it. Yeah, I’ll take it’.”

(R. 188.) Leeth asked Jones during the polygraph test if Jones killed Addison and placed her body under the bed in the hotel room. Jones “failed” the polygraph test because it was determined that he had not answered one or more of the test questions truthfully. Jones subsequently admitted during a “post test interview interrogation” that he lulled Addison." (R. 192.)

“This Court reviews de novo a circuit court’s decision on a motion to suppress evidence when the facts are not in dispute. See State v. Hill, 690 So.2d 1201, 1203 (Ala.1996); State v. Otwell, 733 So.2d 960, 962 (Ala.Crim.App.1999).” State v. Skaggs, 903 So.2d 180, 181 (Ala.Crim.App.2004). In the instant case, the facts are uncontested; the only "issue is the circuit court’s application of the law to those facts. Therefore, this Court affords no presumption in favor of the circuit court’s ruling.

“As our Supreme Court has stated:

“ ‘The Fifth Amendment to the United States Constitution provides that, “[n]o person ... shall be compelled in any criminal case to be a witness against himself.” U.S. Const. Amend. V. In Miranda, the United States Supreme Court held that the right against self-incrimination “is fully applicable during a period of custodial interrogation.” 384 U.S. at 460. The Supreme Court in Miranda further held that “the right to have counsel present at the interrogation is indispensable to the protection of the Fifth Amendment privilege.,.. ” 384 U.S. at 469. Before a custodial interrogation, a suspect must be informed of these rights, now commonly referred to as Miranda rights. 384 U.S. at 444 (“Prior to any questioning, the person must be warned that he has a right to remain silent, that any statement he does make may be used as evidence against him, and that he has a right to the presence of an attorney, either retained or appointed.”). The Supreme Court in Miranda recognized that “the defendant may waive effectuation of these rights, provided that the waiver is made voluntarily, knowingly, and intelligently.” Id:
“Ex parte Landrum, 57 So.3d 77, 81 (Ala.2010).”

Thompson v. State, 97 So.3d 800, 805 (Ala.Crim.App.2011).

In Edwards v. Arizona, 451 U.S. 477, 101 S.Ct. 1880, 68 L.Ed.2d 378 (1981), Edwards was arrested on charges of robbery, burglary, and murder. After Edwards was read his Miranda rights and waived them, Edwards told the interrogating officer that he was willing to answer questions and that he wanted to “make a deal.” Later during questioning, Edwards stated that he wanted to speak to an attorney; the officer stopped questioning Edwards, and he was taken to the county jail. The following day, however, two detectives came to the jail and asked to speak with Edwards. Edwards initially refused to talk to the detectives but was told by a guard at the jail that he “had” to talk to the detectives. The detectives informed Edwards of his Miranda rights, and Edwards agreed to talk to the detectives. Edwards subsequently incriminated himself during the interrogation and was later convicted on all charges.

The United State Supreme Court in Edwards held:

“ ‘ “[W]hen an accused has invoked his right to have counsel present during custodial interrogation, a valid waiver of that right cannot be established by showing only that he responded to further police-initiated custodial interrogation even if he has been advised of his rights.... [A]n accused, ... having expressed his desire to deal with the police only through counsel, is not subject to further interrogation by the authorities until counsel has been made available to him, unless the accused himself initiates further communication, exchanges, or conversations with the police.”

“ ‘451 U.S. at 484-85, 101 S.Ct. 1880, 68 L.Ed.2d 878 (footnote omitted). The purpose of this rule is to protect an accused in police custody from “‘badger[ing]’ or ‘overreaching’—explicit or subtle, deliberate or unintentional— [that] might otherwise wear down the accused and persuade him to incriminate himself notwithstanding his earlier request for counsel’s assistance.” Smith v. Illinois, 469 U.S. 91, 98, 105 S.Ct. 490, 83 L.Ed.2d 488 (1984), quoting Oregon v. Bradshaw, 462 U.S. 1039, 1044, 103 S.Ct. 2830, 77 L.Ed.2d 405 (1983).

“ ‘ “This ‘rigid’ prophylactic rule, Fare v. Michael C., 442 U.S. 707, 719, 99 S.Ct. 2560, 61 L.Ed.2d 197 (1979), embodies two distinct inquiries. First, courts must determine whether the accused actually invoked his right to counsel. See, e,g., Edwards v. Arizona, supra, 451 U.S. [477], at 484-485, 101 S.Ct. 1880, 68 L.Ed.2d 378 [ (1981) ] (whether accused ‘expressed his desire’ for, or ‘clearly asserted’ his right to, the assistance of counsel); Miranda v. Arizona, 384 U.S. [436], at 444-445, 86 S.Ct. 1602, 16 L.Ed.2d 694 [ (1966) ](whether accused ‘indicate[d] in any manner and at any stage of the process that he wish[ed] to consult -with an attorney before speaking’). Second, if the accused invoked his right to counsel, courts may admit his responses to further questioning only on finding that he (a) initiated further discussions with the police, and (b) knowingly and intelligently waived the right he had invoked. Edwards v. Arizona, supra, [451 U.S.] at 485, 486, n. 9.”
‘Smith v. Illinois, 469 U.S. at 95, 105 S.Ct. 490, 83 L.Ed.2d 488.’ ”

Phillips v. State, 65 So.3d 971, 1020 (Ala.Crim.App.2010).

In Maryland v. Shatzer, 559 U.S. 98, 130 S.Ct. 1213, 175 L.Ed.2d 1045 (2010), the United States Supreme Court narrowed its holding in Edwards. In Shatzer, the defendant, who was incarcerated on a prior conviction, invoked his Miranda right to counsel when questioned about a new allegation of child sexual abuse. The interview was terminated, and Shatzer was released back into the general prison population. Two and a half years later, another detective reopened the case and questioned Shatzer, who was still incarcerated, about the same allegation for which he had previously invoked his right to counsel. 559 U.S. at 101. However, this time Shat-zer waived his Miranda rights and agreed to submit to a polygraph examination. 559 U.S. at at 102. After he failed the polygraph examination, Shatzer gave inculpa-tory statements and was found guilty-based, in part, on those inculpatory statements. 559 U.S. at 102. Shatzer’s conviction was subsequently overturned on the basis that Shatzer was not afforded the protections provided for in Edwards. 559 U.S. at 103.

In reversing the lower court’s ruling, the United States Supreme Court held that after a 14-day break in custody the police may ask an accused to waive his Miranda right to counsel even though he has previously invoked his right to counsel while in custody. 559 U.S. at 111. In so holding, the Court reasoned:

“The protections offered by Miranda, which we have deemed sufficient to ensure that the police respect the suspect’s desire to have an attorney present the first time police interrogate him, adequately ensure that result when a suspect who initially requested counsel is reinterrogated after a break in custody that is of sufficient duration to dissipate the coercive effects.”

Shatzer, 559 U.S. at 109.

Additionally, the Court held in Shatzer that lawful imprisonment imposed upon the conviction of a crime does not create the coercive pressures identified in Miranda, and therefore it does not constitute custody for Miranda purposes. 559 U.S. at 112-13.

In this case, Jones invoked his Miranda right to counsel on July 29, 2013, when Officer Pearson questioned him regarding Addison’s murder. Once Jones invoked his right to counsel, Officer Pearson immediately stopped questioning Jones. Jones was subsequently arrested for charges unrelated to Addison’s murder. Approximately two months later, while Jones was in custody on a burglaxy charge Leeth interviewed Jones regarding Addison’s murder and asked Jones to submit to a polygraph examination. Jones waived his Miranda rights at that time, submitted to a polygraph examination, failed the polygraph examination, and subsequently made inculpatory statements.

The circumstances of Jones’s invocation of his Miranda right to counsel and the subsequent interview by Leeth do not implicate the same concerns of the defendant in Edwards. The protections in Edwards were designed to “prevent police from badgering a defendant into waiving his previously asserted Miranda rights.” McNeil v. Wisconsin, 501 U.S. 171, 177, 111 S.Ct. 2204, 115 L.Ed.2d 158 (1991). In October 2013, when Jones was questioned a second time about Addison’s death, Jones had been out of custody for Miranda purposes more than 14 days. Therefore, there was no presumption of involuntariness under Edwards when Jones was questioned by Leeth in October 2013. Because Jones was given Miranda warnings and because he waived his Miranda rights before giving his October 2013 statement to Leeth, Jones’s inculpa-tory statements were admissible. Therefore, the circuit court did not abuse its discretion in denying Jones’s motion to suppress.

III.

Jones also contends that the circuit court erred by denying his motion for a new trial because, he argues, the State did not prove that he acted recklessly and “his conviction for manslaughter was not supported by the evidence.” (Jones’s brief, p. 33.) Jones contends that the evidence demonstrates that his conviction was the result of a “compromised verdict.” (Jones’s brief, p. 41.)

“The granting or denying of a motion for new trial rests largely within the discretion of the trial court, and the exercise of that discretion carries with it a presumption of correctness that will not be disturbed on appeal unless some legal right was abused and the record plainly and palpably shows that the trial court was in error.”

Knight v. State, 710 So.2d 511, 513 (Ala.Crim.App.1997)(quoting Beard v. State, 661 So.2d 789, 796 (Ala.Crim.App.1995) (citations omitted)).

To the extent that Jones challenges the weight of the evidence, this Court has held:

““‘The weight of the evidence is clearly a different matter from the sufficiency of the evidence. The sufficiency of the evidence concerns the question of whether, ‘viewing the evidence in the light most favorable to the prosecution, [a] rational fact finder could have found the defendant guilty beyond a reasonable doubt.’
“ ‘ “In contrast, ‘the “weight of the evidence” refers to a “determination [by] the trier of fact that a greater amount of credible evidence supports one side of an issue or cause than the other.” ’ We have repeatedly held that it is not the province of this court to reweigh the evidence presented at trial. ‘ “The credibility of witnesses and the weight or probative force of testimony is for the jury to judge and determine.” ’ ” ’
“Seaton v. State, 645 So.2d 341, 342-43 (Ala.Crim.App.1994), quoting Johnson v. State, 555 So.2d 818, 819-20 (Ala.Crim.App.1989) (citations omitted).
“ ‘Once a prima facie case has been submitted to the jury, this Court will not upset the jury’s verdict except in extreme situations in which it is clear from the record that the evidence against the accused was so lacking as to make the verdict wrong and unjust. Deutcsh v. State, 610 So.2d 1212, 1234-35 (Ala.Crim.App.1992). This Court will not substitute itself for the jury in determining the weight and probative force of the evidence. Benton v. State, 536 So.2d 162, 165 (Ala.Crim.App.1988).’

“May v. State, 710 So.2d 1362, 1372 (Ala.Crim.App.1997).

“ ‘Furthermore, on appeal, there is a presumption in favor of the correctness of the jury verdict. Saffold v. State, 494 So.2d 164 (Ala.Crim.App.1986). Although that presumption of correctness is strong, it may be overcome in a limited category of cases where the verdict is found to be palpably wrong or contrary to the great weight of the evidence. Bell v. State, 461 So.2d 855, 865 (Ala.Crim.App.1984).’
“Henderson v. State, 584 So.2d 841, 851 (Ala.Crim.App.1988).”

Thompson v. State, 97 So.3d 800, 810 (Ala.Crim.App.2011).

A person commits the crime of reckless manslaughter if “[h]e recklessly causes the death of another person.” § 13A-6-3(a)(1), Ala.Code 1975. “A person acts recklessly with respect to a result or to a circumstance ... when he is aware of and consciously disregards a substantial and unjustifiable risk that the result will occur or that the circumstance exists.” § 13A-2-2(3), Ala.Code 1975. The Alabama Supreme Court has defined the “recklessness” required for manslaughter as follows: “[A] reckless defendant is one who has ‘consciously disregarded’ a substantial and unjustifiable risk.” Ex parte Koppersmith, 701 So.2d 821, 822 (Ala.1997)(quoting Ex parte Weems, 463 So.2d 170, 172 (Ala.1984)).

Contrary to Jones’s contention on appeal, the State presented evidence that Jones acted recklessly when he grabbed Addison from behind and put his left arm around her neck and held her until she stopped moving. Medical evidence presented at trial indicated that Addison’s trachea was fractured and that the muscles in her neck had hemorrhaged—both signs of strangulation. Dr. Green testified that Addison’s death was a result of asphyxia by strangulation. Although there was evidence indicating that Addison had engaged in risky behaviors immediately before her death, i.e., the consumption of alcohol and crack cocaine, the State presented evidence indicating that Jones’s actions caused Addison’s death. It was for the jury, as the trier of fact, to make a determination regarding the conflicting evidence. See Thompson, supra. Given the evidence presented at trial, the circuit court did not err in denying Jones’s motion for a new trial.

IV.

Jones also contends that the circuit court erred by denying his motion for a judgment of acquittal because, he argues, the State did not present a prima facie case for murder. We need not address this contention, however, because Jones challenges the sufficiency of the State’s evidence against him for murder— a charge of which he was acquitted.

“ ‘[Generally, a conviction for a lesser-included offense is an implied acquittal of a greater offense.’ Ex parte Gillentine, 945 So.2d [1091,] 1093 [ (Ala.Crim.App.2006) ] (emphasis added). Accord Green v. United States, 355 U.S. 184, 189-91, 78 S.Ct. 221, 2 L.Ed.2d 199 (1957). In Bradley v. State, 925 So.2d 232, 237 (Ala.2005), this Court held that a conviction for a lesser offense was an explicit acquittal of the greater offense, because the trial court in that case had instructed the jury that it could consider the lesser offense ‘only if it found that the State had failed to prove all of the elements of [the greater offense].’ ”

Ex parte Gillentine, 980 So.2d 966, 968 (Ala.2007).

Because Jones was convicted of the lesser-included offense of manslaughter, his challenge to the sufficiency of the State’s evidence to prove murder is moot. Cf. Snell v. State, 677 So.2d 786, 791 (Ala.Crim.App.1995)(holding that, because Snell was not convicted of enticement, his challenge to the sufficiency of the evidence to support such a charge was moot).

V.

Jones next contends that the circuit court erred by admitting Dr. Green’s autopsy report into evidence over Jones’s objection. Specifically, Jones contends that the autopsy report included a toxicology report that Dr. Green did not perform, that was not properly authenticated, and that was not properly admitted into evidence at trial. Jones relies solely on this Court’s holding in Lewis v. State, 24 So.3d 480 (Ala.Crim.App.2006), in support of his contention on appeal.

In Lewis, defense counsel questioned the medical examiner who had performed an autopsy of the victim regarding whether she had requested a blood-alcohol analysis. After learning that a blood-alcohol analysis had been requested, defense counsel attempted to have the contents of the toxicology report admitted as a business record, but the trial court sustained the prosecutor’s hearsay objection. On appeal, Lewis argued that the circuit court erred in refusing to allow the toxicology report into evidence and that the report should have been admitted into evidence under either the business-record exception or the public-record exception to the hearsay rule. Lewis, 24 So.3d at 509. This Court disagreed, however, holding that the circuit court had properly excluded the report because Lewis failed to meet the foundational requirements of Rule 803(6), Ala. R. Evid., required to authenticate the report as a business record. Lewis, 24 So.3d at 510.

Jones’s reliance on Lems is misplaced. In this case, Justin Sanders, a toxicologist with the Alabama Department of Forensic Sciences, testified at length regarding the toxicology report. The State subsequently moved to admit the toxicology report into evidence, and the report was admitted into evidence without objection. Dr. Green then testified regarding her autopsy report that, she explained, included a report of autopsy and a toxicology report of the victim. Dr. Green testified that these two documents were needed for a “complete report of autopsy.” (R. 661.) When Jones objected to the admission of the toxicology analysis with the autopsy report, the circuit court noted that the toxicology report had already been admitted into evidence.

Even if we were to conclude that the circuit court erred by admitting Dr. Green’s autopsy report that included the toxicology report into evidence at trial, we would not find reversible error, given that the toxicology report had already been admitted into evidence. See generally Simmons v. State, 797 So.2d 1134, 1158 (Ala.Crim.App.1999), cert. denied, 797 So.2d 1186 (Ala.2001)(holding evidence consisting of expert testimony admissible where evidence was merely cumulative of other evidence presented at trial). In this case, the toxicology report attached to Dr. Green’s autopsy report was admitted into evidence without objection before Dr. Green testified at trial. Thus, admission of a second copy of the toxicology report would have been harmless beyond a reasonable doubt. See Chapman v. California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967). Accordingly, Jones is not entitled to a reversal of his conviction on the basis of this issue.

VI.

Jones also contends that the circuit court erred when it overruled his objection to the circuit court’s jury instruction on intent because, he argues, the instruction was misleading and confusing, and it “created a mandatory presumption with the jury that shifted the burden of proof to [Jones] in violation of his right to a fair trial.” (Jones’s brief, p. 46.) Specifically, Jones challenges the circuit court’s intent instruction on the lesser-included offense of assault in the third degree. In charging the jury on third-degree assault, the circuit court stated, in pertinent part:

“If you find from the evidence that the State has proved beyond a reasonable doubt each of the elements of the offense of assault in the third degree, then you shall find the defendant guilty of assault in the third degree. If you find that the State has failed to prove beyond a reasonable doubt any one or more of the elements of assault in the third degree, then you cannot find the defendant guilty of assault in the third degree. Intoxication is not a defense to a criminal charge; however, intoxication whether voluntary or involuntary is admissible in evidence whenever it is relevant to negate an element of an offense charged. Evidence to prove intent need not be direct but may be circumstantial because the element of intent being a state of mind or mental purpose is usually incapable of direct proof. It may be inferred from the character of the assault and other attendant circumstances. A killing is not accidental when the act causing death is intentional.”

(R. 901-02.)(Emphasis added.)

Jones contends on appeal, as he did below, that the circuit court’s instruction that “[a] killing is not accidental when the act causing death is intentional” was misleading and confusing to the jury. ‘“A trial court has broad discretion in formulating its jury instructions, provided they are an accurate reflection of the law and facts of the case.’ ” Toles v. State, 854 So.2d 1171, 1175 (Ala.Crim.App.2002)(quoting Coon v. State, 494 So.2d 184, 186 (Ala.Crim.App.1986)).

“When reviewing a trial court’s instructions, ‘ “the court’s charge must be taken as a whole, and the portions challenged are not to be isolated therefrom or taken out of context, but rather considered together.’” Self v. State, 620 So.2d 110, 113 (Ala.Cr.App.1992) (quoting Porter v. State, 520 So.2d 235, 237 (Ala.Cr.App.1987)); see also Beard v. State, 612 So.2d 1335 (Ala.Cr.App.1992); Alexander v. State, 601 So.2d 1130 (Ala.Cr.App.1992).”

Williams v. State, 795 So.2d 753, 780 (Ala.Crim.App.1999), aff'd, 795 So.2d 785 (Ala.2001). The trial court may refuse to give a requested jury charge when the charge is either fairly and substantially covered by the trial court’s oral charge or is confusing, misleading, ungrammatical, not predicated on a consideration of the evidence, argumentative, abstract, or a misstatement of the law. See Hemphill v. State, 669 So.2d 1020, 1021 (Ala.Crim.App.1995); see also Ex parte Wilhite, 485 So.2d 787 (Ala.1986).

The circuit court’s instruction with regard to whether intoxication could negate intent in this case was correct; it was not misleading, confusing, or inadequate. See Benton v. State, 536 So.2d 162, 164 (Ala.Crim.App.l988)(recognizing that “[a] killing is not accidental when the act causing death is done intentionally” in case where evidence showed that defendant, by his own admission, grabbed his girlfriend’s neck, although he asked jury to believe that he accidentally strangled his girlfriend). We can find no error with the circuit court’s instructions. Therefore, Jones is entitled to no relief as to this issue.

VIL

Finally, Jones contends that the circuit court erred by not giving a jury charge on assault in the first degree as a lesser-included offense of murder. Specifically, Jones contends that a charge on first-degree assault was warranted because “even though a weapon was not used there was evidence for the sake of this argument that could be said to support a theory that [Jones] sought to seriously disfigure the victim or damage the organ of the victim’s body mainly the trachea.” (Jones’s brief, p. 49.)

At the outset, we question whether this issue is preserved for review on appeal. The record indicates that the circuit court conducted a lengthy charge conference at which the court, defense counsel, and the prosecutor discussed the lesser-included offenses on which the jury was to be instructed. The circuit court ruled that it would instruct the jury on the following offenses: murder, reckless manslaughter, criminally negligent homicide, assault in the second degree, and assault in the third degree. At the charge conference, Jones objected to the circuit court’s failure to give a lesser-included instruction on heat-of-passion manslaughter but did not object to the circuit court’s failure to give an instruction on first-degree assault. After the circuit court instructed the jury, Jones renewed his objection to the circuit court’s failure to give an instouction on heat-of-passion manslaughter but made no mention of the circuit court’s failure to instruct on first-degree assault.

“ ‘Review on appeal is restricted to questions and issues properly and timely raised at trial.’” Ex parte Coulliette, 857 So.2d 793, 794 (Ala.2003)(citing Newsome v. State, 570 So.2d 703, 717 (Ala.Crim.App.1989)). “‘An issue raised for the first time on appeal is not subject to appellate review because it has not been properly preserved and presented.’ ” Id. at 794 (citing Pate v. State, 601 So.2d 210, 213 (Ala.Crim.App.1992)). “[T]o preserve an issue for appellate review, it must be presented to the trial court by a timely and specific motion setting out the specific grounds in support thereof.” McKinney v. State, 654 So.2d 95, 99 (Ala.Crim.App.1995) (citation omitted).

Rule 21.3, Ala. R.Crim. P., provides, in pertinent part:

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

In order to preserve an issue regarding jury instructions for appellate review, the defendant must object before the jury retires to deliberate. See Davis v. State, 747 So.2d 921, 924 (Ala.Crim.App.1999); Hinton v. State, 632 So.2d 1345, 1350 (Ala.Crim.App.1993). Because Jones did not object to the circuit court’s failure to instruct the jury on first-degree assault, this issue is not properly preserved for our review. See Coulliette, supra.

In any event, Jones was not entitled to an instruction on assault in the first degree based on the evidence presented at trial. A person commits the crime of assault in the first degree if, “[w]ith intent to cause serious physical injury to another person, he causes serious physical injury to any person by means of a deadly weapon or a dangerous instrument.” § 13A-6-20, Ala. Code 1975. The evidence presented at trial did not demonstrate that Jones caused serious physical injury to Addision by means of a deadly weapon or a dangerous instrument. At most, the evidence indicated that Jones grabbed Addison from behind with his left arm around her neck until Addison stopped moving and that Jones’s actions caused Addison’s death. Accordingly, Jones is not entitled to relief on this claim.

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

APPLICATION FOR REHEARING GRANTED; OPINION OF FEBRUARY 12, 2016, WITHDRAWN; OPINION SUBSTITUTED; AFFIRMED.

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

      . Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).

      . For the purposes of review, we have combined issues III and IV addressed in Jones's brief on appeal.


author: BURKE, Judge. BURKE, Judge. JOINER, Judge,

text:
    Catherine Armstrong BELL v. STATE of Alabama.
    CR-15-0618.
    Court of Criminal Appeals of Alabama.
    April 29, 2016.
    Dissent Issued on Denial of Rehearing July 8, 2016.
    Certiorari Denied Aug. 12, 2016 Alabama Supreme Court 1151094.
    Charles Cleveland, Birmingham; and Jonathan E. Lyerly, Birmingham, for appellant.
    Luther Strange, atty. gen., and Marc Alan Starrett, asst. atty. gen., for appellee.
   BURKE, Judge.

Catherine Armstrong Bell appeals the circuit court’s denial of her petitions for expungement, see § 15-27-1 et seq., Ala. Code 1975, of the records in four consolidated cases charging violations of § 13A-6-81, Ala.Code 1975, in three of the cases and a violation of § 13A-6-81, Ala. Code 1975, in one case. The cases were dismissed with prejudice more than 90 days before the petitions for expungement were filed and none of the charges had been refiled. Bell stated in the petitions that she had not previously moved for expungement. Bell argued that the cases were dismissed because the alleged victim admitted that the crimes had never occurred. She attached documents as exhibits to her petitions in support of her argument.

In its response, the State argued that the petitions should be denied because the offenses in three of the cases that had been dismissed were nonconsensual sex offenses and the last case, a misdemeanor, involved an offense that was particularly reprehensible. Therefore, the State argued, under § 12-25-32(14)b.3. and 4., Ala. Code 1975, the records in the cases could not be expunged.

Bell responded that, because the events never occurred, the cases could not meet that criteria for exclusion from expungement. Thereafter, the circuit court denied the petitions, stating that the charges were excluded by the provisions of § 15-27-2(a), Ala.Code 1975.

Bell appealed the denials to the Alabama Supreme Court and that Court transferred the appeal to the Alabama Court of Civil Appeals, rescinded the transfer, and then transferred the case to this Court.

However, “[t]he right to appeal is purely statutory, and an appeal taken without statutory authority must be dismissed for want of jurisdiction. Tarvin v. Tarvin, 266 Ala. 214, 95 So.2d 397; Coker v. Fountain, 200 Ala. 95, 75 So. 471. The Legislature determines the right to appeal to state courts.” Wheat v. Ramsey, 284 Ala. 295, 301, 224 So.2d 649, 654 (1969). See also James v. Alabama Bd. of Pardons & Paroles, 617 So.2d 277 (Ala.Civ.App.1993).

There is no provision in Chapter 27 of Title 15, “Expungement,” for a direct appeal of the denial of a petition for ex-pungement. Rather, § 15-27-5(e), Ala. Code 1975, states: “The ruling of the court shall be subject to certiorari review and shall not be reversed absent an abuse of discretion.” Levins v. State, [Ms. CR-15-0612, April 29, 2016] — So.3d-(Ala. Crim.App.2016). Filing a petition for writ of certiorari in the Alabama Supreme Court is governed specifically by Rule 39, Ala. R.App. P, which speaks to review of decisions of the Alabama Court of Civil Appeals, as well as this Court’s decisions, and includes filing procedures addressed specifically to the clerk of the Alabama Supreme Court. Rule 39 was clearly promulgated to address review of appellate court decisions by the Alabama Supreme Court by way of petitions for writ of cer-tiorari. Because the filing of such a writ in this Court is not specifically addressed by the Alabama Rules of Appellate Procedure, Rule 21(c), Ala. R.App. P., should apply. That rule states:

“(c) Other Extraordinary Writs. Application for extraordinary writs other than those provided for in subdivisions (a) and (b) of this rule shall be made by petition filed with the clerk of the appellate court having jurisdiction thereof with proof of service on the parties named as respondents. Except in the Court of Criminal Appeals, the petition shall be accompanied with payment of the docket fee as prescribed in Rule 35A. Proceedings on such application shall conform, so far as is practicable, to the procedure prescribed in subdivisions (a) and (b) of this rule.”

Thus, the petition shall comply in form and timing with Rule 21(a), Ala. R.App. P. The procedure for deciding the petition shall be governed by Rule 21(b), Ala. R.App. P.

Because there was no statutory right of appeal from the denial of Bell’s petitions for expungement, this appeal must be dismissed for want of jurisdiction.

APPEAL DISMISSED.

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

KELLUM, J., concurs in the result.

On Application for Rehearing

BURKE, Judge.

APPLICATION OVERRULED.

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

JOINER, J., dissents, with opinion.

JOINER, Judge,

dissenting.

On application for rehearing, Catherine Armstrong Bell asks this Court to reconsider our refusal on original submission to treat her notice of appeal as a petition for a writ of certiorari. Based on the authorities cited by Bell in her application for rehearing, I think her position is correct; our dismissal of her “appeal” improperly exalted form over substance. I would therefore grant her application for rehearing and treat her notice of appeal as a petition for a writ of certiorari.

      . Section 13A-6-81, Ala.Code 1975, prohibits a school employee from engaging in a sex act or deviant sexual intercourse with a student under the age of 19 years. It is a Class B felony.

      . There were six charges contained in these three cases,

      .Section 13A-6-82, Ala.Code 1975, prohibits a school employee from having sexual contact with a student under the age of 19 years. It is a Class A misdemeanor.

      . By citing § 15-27-2(a), the circuit court apparently found that Bell's felony charges were "violent offenses" as defined in § 12-25-32(14), Ala.Code 1975.

      . Levins v. State, which is being released the same date as this opinion, distinguishes an appeal and a petition for writ of certiorari and finds that the denial of a petition for expungement can not be challenged by way of a direct appeal.

      . In Levins v. State, [Ms. CR-15-0612, April 29, 2016] — So.3d-(Ala.Crim.App.2016), a decision released the same day as our opinion in this case, we declined to treat Levins's appeal as a petition for a writ of certiorari. We did so, however, at Levins’s express request that we not convert his appeal into a petition for writ of certiorari.