author: GRIFFIS, P.J.,

text:
    Marion O’Bryan STRICKLAND a/k/a Marion Strickland a/k/a Bryan Strickland a/k/a Brian Strickland, Appellant v. STATE of Mississippi, Appellee.
    No. 2014-KA-01697-COA.
    Court of Appeals of Mississippi.
    July 19, 2016.
    Rehearing Denied April 18, 2017.

      Richard Shane McLaughlin, Nicole H. McLaughlin, Tupelo, attorneys for appellant.
    Office of the Attorney General by Barbara Wakeland Byrd, attorney for appel-lee.
    Before GRIFFIS,. P.J.,. CARLTON and JAMES, JJ.
   GRIFFIS, P.J.,

for the Court:

¶ 1. Marion O’Bryan Strickland was convicted of one count of enticing a child to produce a visual depiction of sexually explicit conduct in violation of Mississippi Code Annotated section 97-5-33(7) (Rev. 2015). The Panola County Circuit Court sentenced Strickland to forty years in prison, with twenty years to serve and twenty years of post-release supervision (PRS). Strickland appeals his conviction. This Court finds no error and affirms.

FACTS AND PROCEDURAL HISTORY

¶ 2. Strickland worked as a high-school teacher in the South Panola County School District, where he met K.W., a student at South Panola High School. Strickland offered to connect K.W. with a girl from Oxford, named “Jordan Smith,” and then posed as Jordan in order to send text messages to K.W. Strickland used an application known as Pinger to disguise his phone number as another number and took pictures from Facebook in order to pose as Jordan.

¶ 3. Strickland sent messages to K.W, that quickly became sexual in nature. First, Strickland asked K.W. to send photos of himself in exchange for photographs of “Jordan.” K.W. then.sent a picture of his clothed buttocks. Strickland next asked for a picture of K.W.’s nude genitals, which K.W. sent in exchange for a picture of a female’s genitals. K.W. stopped sending messages after he sent the photograph of his genitalia.

¶ 4. At trial, two other high-school boys, H.D. and M.J., testified that Strickland also attempted to set them up with a girl named Jordan. Strickland allegedly met with H.D. and offered to introduce him to a community-college recruiter. Strickland then posed as a recruiter named “Jordan” and sent text messages that turned sexually explicit. Strickland requested H.D. to send photographs of himself, but H.D. declined.

¶ 5. With M.J., Strickland posed as “Jordan,” a freshman at Ole Miss. Strickland and M.J. also exchanged text messages with each other. Strickland sent two pictures of Jordan and asked for M.J. to send pictures of himself, but M.J. ended the contact without sending any photographs.

¶ 6. A South Panola grand jury indicted Strickland on three counts of enticing a child to produce a visual depiction of the child engaging in sexually explicit conduct for the exchanges with K.W., H.D., and M.J. The State, however, only proceeded on Count I, based. on his conduct with K.W. After a three-day trial, held from October 13 to October 15, 2014, the jury returned a guilty verdict. The trial court denied Strickland’s post-trial motions, which Strickland now appeals.

ANALYSIS

¶7. Strickland argues on appeal that: (1) the trial court erred in admitting evidence of Strickland’s interactions with H.D. and M.J. in violation of Mississippi Rule of Evidence 404(b); (2) the trial court erroneously admitted testimony about missing text messages in contradiction to Mississippi Rule of Evidence 1002, called the “best-evidence rule”; (3) he received ineffective assistance of counsel; (4) the trial court erred in denying his request to discharge his counsel and receive new appointed counsel; and (5) the trial court erred in denying his post-trial motion for a judgment notwithstanding the verdict (JNOV) or, in the alternative, a new trial. This Court will address the merits of each issue.

I. The trial court did not erroneously admit evidence of Strickland’s interactions with H.D. and M.J. under Rule kOfyQ)).

¶8. Strickland primarily contends that Rule 404(b) prohibited evidence of his conduct with H.D. and M.J. and that the evidence did not meet one of the exceptions in Rule 404(b). Alternatively, Strickland argues that even if the evidence met an exception to Rule 404(b)’s general prohibition, it was not properly admitted under Mississippi Rule of Evidence 403, which caused undue prejudice. Strickland further contends that the admission of this evidence compromised his right to not testify.

¶ 9. “A trial judge enjoys a great deal of discretion as to the relevancy and admissibility of evidence. Unless the judge abuses this discretion so as to be prejudicial to the accused, the Court will not reverse this ruling.” Gore v. State, 37 So.3d 1178, 1183 (¶ 13) (Miss.2010) (quoting Price v. State, 898 So.2d 641, 653 (¶ 29) (Miss.2005)). Therefore, this Court must determine if the trial court abused its discretion by allowing M.J. and H.D. to testify-

¶10. Rule 404(b) states:

Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show that he acted in conformity therewith. It may, however, be admissible for other purposes such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident.

“As there exists an inherent danger of prejudicial effect in the use of other acts evidence, the 404(b) exception for which the crime is introduced must be a material issue in the case. Moreover, its probative value must not be substantially outweighed by the prejudicial effect.” Leedom v. State, 796 So.2d 1010, 1015 (IT 15) (Miss. 2001); M.R.E. 403.

¶ 11. Before trial, the trial court conducted a hearing to determine the admissibility of the evidence of Strickland’s conduct with the other boys.

“Evidence of a sexual offense, other than the one charged, which involves a victim other than the victim of the charged offense for which the accused is on trial,” may be considered by the jury “if properly admitted under Rule 404(b), filtered through Rule 403, and accompanied by an appropriately-drafted limiting or cautionary instruction^]”

Green v. State, 89 So.3d 543, 549 (¶ 15) (Miss.2012) (quoting Derouen v. State, 994 So.2d 748, 756 (¶ 20) (Miss.2008)).

¶ 12. In Green, the trial court admitted testimony from four different victims in a sexual-battery and lustful-touching case because of the “overwhelming similarities to prove motive, opportunity, intent[,] and the other factors under Rule 404(b).” Id. at 547 (¶ 9). The Mississippi Supreme Court determined that the testimony of the victims illustrated that “Green engaged in the sexual abuse of female family members in a similar manner (the same or similar acts, in the same or similar locations), when they were near the age of puberty, i.e., vulnerable, ‘young and developing ... juveniles.’ ” Id. at 549 (¶ 17). The supreme court found the trial court did not abuse its discretion by admitting the testimony under Rule 404(b). Id. at 551 (¶ 17). Further, the supreme court ruled the evidence properly passed through Rule 403 and ultimately concluded the trial court did not err. Id. at 552 (¶ 22).

¶ 13. The Gore court reached a similar result in affirming the trial court’s decision to permit testimony from the defendant’s daughter about prior sexual acts when the defendant was on trial for sexual acts he performed on his grandchild. Gore, 37 So.3d at 1187 (¶¶ 20-21). The supreme court reasoned that the trial court did not abuse its discretion in finding the evidence met the exceptions of Rule 404(b) and passed through Rule 403, and the trial court properly issued a limiting instruction. Id. at (¶ 21).

¶ 14. Strickland argues, however, that Green, Derouen, and Gore involve molestation, rape, and other physical, sexual acts that differ from the crime charged against him. This argument, however, is disingenuous because the purpose of the rule applies equally regardless of the severity of the act as long as the evidence properly meets one of the exceptions to Rule 404(b). Therefore, this Court can properly apply these cases to Strickland.

¶ 15. Here, the State intended to proffer the testimony of H.D. and M.J. to show Strickland’s plan, knowledge, preparation, motive, and absence of mistake. The trial court conducted a hearing on the admissibility of the evidence and considered the testimony of Tim Douglas, an agent with the Mississippi Bureau of Investigation (MBI). Agent Douglas testified about his interrogation with Strickland where he admitted his involvement in text-ing K.W., H.D., and M.J. Agent Douglas also detailed the similarities of Strickland’s actions with each boy. Strickland used Pinger to change his phone number, disguised himself as Jordan, sent sexually explicit text messages, sent inappropriate pictures, ■ and targeted high-school-aged boys. Further, M.J. and H.D. testified that they separately sent text messages to Strickland, they both received pictures, and then both were asked to send sexually explicit pictures of themselves.

¶ 16. Relying on Cole v. State, 126 So.3d 880, 886 (¶27) (Miss.2013), the trial court noted that “prosecutors should clearly present the alternative purpose for the evidence, and trial judges should state the purpose for which the evidence is being admitted, and then provide the jury an appropriate limiting instruction.” As such, the trial court determined the State presented sufficient reasoning that the evidence qualified under the exceptions to Rule 404(b).

¶ 17. Precedent also requires the trial court to scrutinize the evidence under Rule 403 before admitting it. Rule 403 states: “[Evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury[J” The trial court found the evidence was “not more prejudicial than probative and it is not going to confuse the issues or mislead the jury.” As such, the trial court conducted a proper analysis under Rule 403.

¶ 18. Even if the evidence meets an exception in Rule 404(b) and passes the balancing test in Rule 403, Derouen and its progeny require the trial court to issue cautionary and limiting instructions restricting the jury’s consideration of the evidence. Derouen, 994 So.2d at 756 (¶20). Here, the trial court issued instructions after the testimony of M.J. and H.D., as well as a jury instruction. The limiting jury instruction stated in part:

You have heard evidence about the defendant’s acts with other individuals, [M.J.] and [H.D.,] about which the defendant is not on trial before you. You are not to consider these acts as evidence that the defendant committed the crime for which he is now charged against [K.W.] You may consider the other acts with [M.J.] and [H.D.] for the limited purpose of establishing proof of motive, opportunity, identity, plan, preparation, or knowledge. You cannot and must not simply infer that the defendant acted in conformity with his previous acts and that he is therefore guilty of the charge for which he is presently on trial[.]

This instruction meets the standards set forth in Derouen and substantially tracks the instruction language presented in Gore. Derouen, 994 So.2d at 756 (¶20); Gore, 37 So.3d at 1184 (¶ 14). Therefore, the trial court properly admitted the evidence.

¶ 19. Strickland also contends that the admission of the evidence compromised his right to not testify. He argues that the admission of this prejudicial evidence forced him to testify on his own behalf in order to refute the allegations. To support his proposition, Strickland relies on the supreme court’s decision in Robinson v. State, 35 So.3d 501, 507 (¶ 17) (Miss. 2010). In Robinson, the supreme court found that the admission of improper character evidence jeopardized Robinson’s constitutional right to remain silent. Id. But, unlike here, the Robinson court found the trial court erred in admitting the character evidence, Id. Therefore, because the character evidence was properly admitted, Robinson does not apply.

¶20. For these reasons, this Court finds the trial court did not abuse its discretion in admitting the evidence of the incidents involving M.J. and H.D. under Rule 404(b). This issue is meritless.

II. The admission of testimony about the text messages and photographs did not violate the “best-evidence rule.”

¶ 21. Secondly, Strickland argues the trial court erred in allowing testimony about the missing text messages and photographs instead of physical copies. Though the State put on evidence of the reasons for not proffering the actual text messages, Strickland contends the State failed to meet its burden under Rule 1002. The State counters that Strickland failed to raise this objection at trial, and, even so, the testimony did not violate the best-evidence rule.

¶22. This Court first addresses the State’s procedural argument. “The supreme court has stated that ‘counsel must make specific objections in order to preserve a question for appellate review. This Court has said many times that general objections will not suffice. Objections to the admissibility of evidence must specifically state the grounds; otherwise, the objection is waived.’” Hoye v. State, 1 So.3d 946, 948 (¶6) (Miss.Ct.App.2009) (quoting Seeling v. State, 844 So.2d 439, 445 (¶ 17) (Miss.2003)). The record indicates that Strickland failed to object to this evidence under . the best-evidence rule. Strickland also admits this failure, in his appellant’s brief. Therefore, this issue is. procedurally barred.

¶23. Strickland, however, urges this Court to consider this issue under the plain-error doctrine. “Under the plain-error doctrine, we can recognize obvious error which was not properly raised by the defendant on appeal, and which affects a defendant’s ‘fundamental, substantive right.’ ” Smith v. State, 986 So.2d 290, 294 (¶ 10) (Miss.2008) (citation omitted). “For the plain-error doctrine to apply, there must have been an error that resulted in a manifest miscarriage of justice or ‘seriously affect[s] the fairness, integrity[,] or public reputation of . judicial proceedings.’ ” Conners v. State, 92 So.3d 676, 682 (¶ 15) (Miss.2012) (quoting Brown v. State, 995 So.2d 698, 703 (¶21) (Miss.2008)). Therefore, this Court will examine the merits of this issue under the plain-error doctrine.

¶24. Strickland asserts the trial court erred when it admitted testimony about the text messages and photographs, specifically the photograph of K.W.’s penis, in lieu of the actual text. messages and .photographs. The best-evidence rule is found, in Mississippi Rule of Evidence 1002. Rule 1002 states: “To prove the content of a writing, recording, or photograph, the original writing, recording, or photograph is required, except as otherwise provided by law.” However, Rule 1004 lists several exceptions to the best-evidence rule. Rule 1004 states in part:

The original is not required, and other evidence of the contents of a writing, recording, or photograph is admissible if:
(1) Originals Lost or Destroyed. All originals are lost or have been destroyed, unless the proponent lost or destroyed them in bad faith; or
(2) Original Not Obtainable. No original can be obtained by any available judicial process or procedure; or
(3) Original in Possession of Opponent. At a time when an original was under the control of the party against whom offered, he was put on notice, by the pleadings or otherwise, that the contents would be a subject of proof at the hearing, and he does not produce the original at the hearing[.]

M.R.E. 1004(l)-(3).

¶25. Agent Douglas, K.W., and Strickland all testified to the existence of the photograph of KW.’s penis. While Strickland disputed the contents of the photograph, he did not-deny that he received a photograph from K.W. Strickland only argues the best-evidence rule required the admission .of.the actual text messages and photograph rather .than testimony about them. However, “[t]he best[-]evidence rule only expresses a preference for original documents, but does not preclude the admission of secondary-evidence.” Watson v. State, 465 So.2d 1091, 1092 (Miss.1985) (finding photocopy admissible in place of original letter).

¶26. The State put on evidence that the contents on KW.’s phone were erased and could not be recovered. K.W. testified that his phone locked up and Strickland offered to unlock the phone, but warned him that the process would erase the contents of his phone. K.W. agreed to let Strickland fix the phone, which resulted in the deletion of the entire contents of the phone. Agent Douglas also testified that Strickland confirmed that he deleted the contents of KW.’s phone.

¶ 27. Agent Douglas also testified that he attempted to access Strickland’s phone. Agent Douglas stated that he asked Strickland for the code to his password-protected phone, Strickland gave him several different codes, and none of the codes unlocked the phone. Agent Douglas further testified that the forensic technician could not retrieve the data from KW.’s phone or unlock Strickland’s phone. Strickland argues the State should have called the technician to testify to the retrieval process in order to provide expert testimony as to the destruction of the evidence. However, Agent Douglas provided sufficient testimony on the matter to show that neither the photographs nor the text messages were accessible.

¶ 28. Therefore, the State put on sufficient evidence to show the loss or destruction of the messages and photograph to allow for secondary evidence in the form of testimony. For these reasons, this Court finds no error in the trial court’s admission of testimony about the text messages and photographs in lieu of the actual messages and photographs. Further, because this Court finds no error, the plain-error doctrine does not apply. This issue is without merit.

III. Strickland’s counsel did not perform in a constitutionally deficient manner.

¶29. Strickland’s third assignment of error asserts that Strickland received ineffective assistance of counsel when his trial counsel, Randolph Walker, failed to object to the admission of the testimony regarding the missing text messages.

¶ 30. “When considering a claim of ineffective assistance of counsel, this Court must find that trial counsel’s performance was deficient and that there would have been a different result in the verdict if it were not for trial counsel’s deficiency.” Payton v. State, 41 So.3d 713, 719 (¶ 23) (Miss.Ct.App.2009). “The defense counsel is presumed to have acted competently and the effectiveness of his or her efforts are determined on the basis of the totality of the circumstances.” Kirksey v. State, 728 So.2d 565, 567 (¶ 10) (Miss.1999) (citation omitted).

¶31. Additionally, “[this] Court rarely determines issues of ineffective assistance of counsel on direct appeal unless: ‘(1) the record affirmatively shows ineffectiveness of constitutional dimensions, or (2) the parties stipulate that the record is adequate to allow the appellate court to make the finding without consideration of the findings of fact of the trial court.’ ” Payton, 41 So.3d at 719 (¶ 23) (quoting Graves v. State, 914 So.2d 788, 798 (¶35) (Miss.Ct.App.2005)).

¶ 32. Strickland maintains that Walker rendered ineffective assistance when he failed to object to the testimony about the missing text messages and photographs under the best-evidence rule. As previously discussed, the trial court properly admitted the testimony about the text messages and photographs. Further, “ ‘counsel’s choice[s] of whether or not to file certain motions, call witnesses, ask certain questions, or make certain objections fall within the ambit of trial strategy’ and will not stand as support for an ineffective assistance of counsel claim.” Jackson v. State, 73 So.3d 1176, 1181-82 (¶22) (Miss. Ct.App.2011) (citations omitted). As such, Strickland failed to prove Walker acted in a constitutionally deficient manner due to his failure to object.

¶33. Also, this Court finds the record does not affirmatively show any indication of ineffective assistance of counsel. “The Mississippi Supreme Court has stated that, where the record cannot support an ineffective assistance of counsel claim on direct appeal, the appropriate conclusion is to deny relief, preserving the defendant’s right to argue the same issue through a petition for post-conviction relief.” Witcher v. State, 863 So.2d 719, 761 (¶ 162) (Miss.2003) (quoting Aguilar v. State, 847 So.2d 871, 878 (¶ 17) (Miss.Ct. App.2002)). The parties here did not stipulate to the adequacy of the record for this Court to find ineffective assistance. Therefore, this Court declines to find ineffective assistance of counsel at this juncture, but preserves this issue for post-conviction-relief proceedings. This issue is without merit.

IV. The trial court properly denied defense counsel’s motion to withdraw and Strickland’s request for appointed counsel.

¶ 34. Next, Strickland argues the trial court committed error by refusing Walker’s motion to withdraw due to “philosophical and tactical differences.” Strickland also assigns error in the trial court’s denial of his request for appointed counsel. These actions, according to Strickland, deprived him of his constitutional right to his choice of counsel.

¶ 35. “The trial court has complete discretion when considering a motion to withdraw as counsel.” Hill v. State, 134 So.3d 721, 725 (¶ 15) (Miss.2014) (citation omitted). Walker filed his motion to withdraw on August 25, 2014, fifty-three days before trial. The trial court then held a hearing on the motion on September 24, 2014, only eighteen days before trial. At the hearing, the trial court determined that counsel had been on the case since October 14, 2013, represented Strickland in two prior proceedings, and competently represented Strickland in the criminal proceeding. The trial court also noted the case had been continued four separate times. Based on these reasons, the trial court denied Walker’s motion to withdraw. This decision fell within the discretion of the trial court, and the trial court did not commit error by denying counsel’s motion.

¶ 36. Strickland also contends the trial court’s actions deprived him of his choice of counsel. “An accused is granted the right to retain counsel of his choice or he may choose to have counsel appointed for him.” Id. Though “the right to counsel is absolute, the right to counsel of choice is not absolute.” Harris v. State, 999 So.2d 436, 438 (¶ 15) (Miss.Ct.App.2009) (citing Atterberry v. State, 667 So.2d 622, 630 (Miss.1995)).

¶ 37. At the hearing on the motion to withdraw, Strickland requested the appointment of new counsel after the trial court denied Walker’s motion to withdraw. Strickland cited the same reasoning as Walker in that the two disagreed over tactical approaches. However, Strickland did not argue other reasons for needing new counsel. “[I]n order to warrant a substitution of counsel during trial, the defendant must show good cause, such as a conflict of interest[,] a complete breakdown of communication[,] or an irreconcilable conflict which leads to an apparently unjust verdict.” Taylor v. State, 435 So.2d 701, 703 (Miss.1983). Though the request for new counsel occurred prior to trial, Strickland failed to assert any reason that Walker could not competently represent him or that Walker’s continued representation would lead to an unfair trial.

¶ 38. Further, the record indicates the trial court allowed Strickland to retain new counsel by the start of the trial if he desired. At trial, Strickland appeared with Walker and did not retain a new attorney. The record indicates that the trial court informed Strickland of his right to participate in his defense and his right to proceed with either Walker as his attorney or on his own as a pro se litigant. The trial court asked Strickland if he approved of Walker’s continued representation, and Strickland replied in the affirmative.

¶ 39. Further, the trial court allowed Strickland to confer with Walker after he questioned each witness and to speak to the jury as part of his defense. “While every accused has the constitutional right to be represented by an attorney, it must be balanced against the right of an accused to represent himself, that is, to present his own case pro se without an attorney.” Metcalf v. State, 629 So.2d 558, 562 (Miss.1993). This balancing of representation can lead to what is known as “hybrid representation,” and “a trial court may certainly permit hybrid representation in its discretion.” Id. at 563. The Metcalf court further noted that in hybrid representation “the primary focus must be on whether the defendant had a fair chance to present his case in his own way.” Id. (quoting McKaskle v. Wiggins, 465 U.S. 168, 177, 104 S.Ct. 944, 79 L.Ed.2d 122 (1984)).

¶ 40. Strickland fully participated in his representation and enjoyed competent representation at trial. For these reasons, the trial court did not abuse its discretion in denying Walker’s motion to withdraw, denying Strickland’s request for appointed counsel, or allowing hybrid representation. This issue is without merit.

V. The trial court did not err in denying Strickland’s post-trial motions.

¶ 41. Lastly, Strickland argues that the trial court erred in denying his motion for a JNOV or, in the alternative, a new trial. Strickland contends the evidence was insufficient to support a finding that he committed the crime. Further, he asserts that the jury verdict was- against the overwhelming weight of the evidence.

A. Sufficiency of the Evidence

¶ 42. A motion for a JNOV challenges the legal sufficiency of the evidence. Reed v. State, 956 So.2d 1110, 1111 (¶ 6) (Miss.Ct.App.2007). To determine the sufficiency of the evidence, the central issue is “whether the evidence shows ‘beyond a reasonable doubt that [the] accused committed the act charged, and that he did so under such circumstances that every element of the offense existed; and where the evidence fails to meet this test it is insufficient to support a conviction.’ ” Conner v. State, 138 So.3d 158,162 (¶ 8) (Miss. Ct.App.2013) (quoting Bush v. State, 895 So.2d 836, 843 (¶ 16) (Miss.2005)).

¶ 43. “When reviewing the sufficiency of the evidence, this Court must ask whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” Miles v. State, 956 So.2d 349, 350 (¶6) (Miss.Ct.App.2007) (citation omitted).' Further, “when this [C]ourt reviews the sufficiency of the evidence, we- consider all evidence in the light most favorable to the State.” Moore v. State, 160 So.3d 728, 735 (¶ 31) (Miss.Ct.App.2015) (citation omitted). Therefore, this Court must determine whether the State proved, beyond a reasonable doubt, that Strickland committed the crime charged.

¶44. Mississippi Code Annotated section 97-5-33(7) (Rev.2014) states: “No person shall by any means, including computer, knowingly entice, induce, persuade, seduce, solicit, advise, coerce[,] or order a child to produce any visual depiction of adult sexual conduct or any sexually explicit conduct.” Strickland argues that the photograph did not depict sexually explicit conduct and the State’s failure to produce the photograph prevented the jury from finding he violated the statute.

¶ 45. Strickland first disputes that the picture contained sexually explicit conduct.

“Sexually explicit conduct” means actual or simulated: (i) Oral genital contact, oral anal contact, or sexual intercourse as defined in Section 97-3-65, whether between persons of the same or opposite sex; (ii) Bestiality; (iii) Masturbation; (iv) Sadistic or masochistic abuse; (v) Lascivious exhibition of the genitals or pubic area of any person; or (vi) Fondling or other erotic touching of the genitals, pubic area, buttocks, anus[,] or breast.

Miss.Code Ann. § 97-5-31(b) (Rev.2014). Strickland contends only subsection (v) could apply to the picture of KW.’s erect penis. However, he denies that the picture constituted a lascivious exhibition.

¶ 46, The supreme court adopted the factors outlined in United States v. Dost, 636 F.Supp. 828, 832 (S.D.Cal.1986), to determine whether a visual depiction of a child constitutes a lascivious exhibition. Hood v. State, 17 So.3d 548, 555 (¶17) (Miss.2009) (citation omitted). These factors are:

1.whether the focal point of the visual depiction is on the child’s genitalia or pubic area;
2. whether the setting of the visual depiction is sexually suggestive, i.e.[,] in a place or pose generally associated with sexual activity;
3. whether the child is depicted in an unnatural pose, or in inappropriate attire, considering the age of the child;
4. whether the child is fully or partially clothed, or nude;
5. whether the visual depiction suggests sexual coyness or a willingness to engage in sexual activity; [or]
6. whether the visual depiction is intended or designed to elicit a sexual response in the viewer.

Id.

¶ 47. Hood is instructive. In Hood, the defendant alleged that a video depicting nude male children was not sexually explicit conduct. Id. at 555-56 (¶ 18). The supreme court applied the Dost factors and found the video, which included multiple images that depicted only the nude genitalia of the young boys, was lascivious in nature and established sexually explicit conduct. Id. Thus, the supreme court affirmed the jury’s verdict convicting Hood under section 97-5-33(5).

¶ 48. Here, testimony established that the photograph of K.W. depicted only an erect penis. Looking to the Dost factors, the photograph focused on KW.’s genitalia, was sexually suggestive, was fully nude, and likely was intended to elicit a sexual response from the viewer. Based on the Dost factors and the Hood decision, this Court finds the photograph did constitute sexually explicit conduct to support Strickland’s conviction.

¶ 49. Strickland, however, asserts that the lack of an actual photograph meant the jury could not find that any sexually explicit conduct occurred. As previously stated, this Court concludes that the testimony sufficiently established the existence and content of the photograph. Therefore, Strickland’s contention fails.

¶ 50. Looking at the sufficiency of the evidence, K.W., H.D., and M.J. testified to substantially similar encounters with Strickland. The boys all testified that they received text messages from a girl named Jordan after Strickland told them she would contact them. Each boy also testified that the text messages became sexually explicit, that Jordan sent pictures of herself, and that Jordan asked for sexually explicit pictures in return. K.W. further testified to his conversations with Strickland, described the photograph he sent Strickland, and stated that Strickland erased the contents from his phone.

¶ 51. Moreover, Strickland told Agent Douglas he did elicit and receive the photograph from K.W., though he stated his reason for getting the photograph was to counsel K.W. Agent Douglas also testified that Strickland admitted the Pinger account belonged to him and when he called the Pinger number that K.W., M.J., and H.D. received messages from, Strickland’s phone rang.

¶ 52. Though he disputed that he first contacted K.W., Strickland admitted to messaging K.W. Further, Strickland confirmed that he requested and received a picture of a penis, though he maintained that he neither enticed K.W. to send the picture nor could he confirm whom the photograph depicted. Strickland also denied that he attempted to elicit nude photographs from the boys for sexual purposes.

¶ 53. Based on this evidence, Strickland solicited a sexually explicit photograph from K.W., which meets all of the element of the crime. Considering the evidence in the light most favorable to the State, this Court finds the evidence was sufficient to, support Strickland’s conviction.

B. Weight of the Evidence ■

¶ 54. Additionally, Strickland challenges the trial court’s denial of his motion for a new trial. “A motion for a new trial challenges the weight of the evidence.” Shinn v. State, 179 So.3d 1006, 1008 (¶ 7) (Miss.2015).

When reviewing a denial of a motion for a new trial based on an objection to the weight of the evidence, we will only disturb a verdict when it is so contrary to the overwhelming weight of the evidence that to allow it to stand would sanction an unconscionable injustice.

Bush, 895 So.2d at 844 (¶ 18). This Court should grant a new trial “only in exceptional cases in which the evidence preponderates heavily against the verdict.” Id. In considering the case, “the evidence should be weighed in the light most favorable to the verdict.” Id.

¶ 55. Strickland argues the weight of the evidence does not support the jury verdict because the absence of the photographs and text messages rendered the verdict unconscionable. Strickland, however, fails to address the multiple witnesses who testified at trial. The evidence showed Strickland posed as a young female, used a fake phone number, sent sexually explicit text messages and photographs to K.W., and received a photograph of K.W.’s erect penis. Strickland admitted to these facts in his statement to Agent Douglas, who testified to the contents of the statement, and he also failed to refute this evidence at trial.

¶56. “The jury is charged with the responsibility of weighing and considering conflicting evidence, evaluating the credibility of witnesses, and determining whose testimony should be believed.” Ford v. State, 737 So.2d 424, 425 (¶8) (Miss.Ct.App.1999) (internal citations omitted). The jury weighed the evidence and the credibility of the witnesses. Therefore, the weight of the evidence supported the jury’s verdict. As such, the trial court did not abuse its discretion in denying Strickland’s motion for a new trial. This issue is meritless.

¶ 57. THE JUDGMENT OF THE PA-NOLA COUNTY CIRCUIT COURT OF CONVICTION OF ENTICING A CHILD TO PRODUCE A VISUAL DEPICTION OF SEXUALLY EXPLICIT CONDUCT AND SENTENCE OF FORTY YEARS, WITH TWENTY YEARS TO SERVE IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS AND TWENTY YEARS OF POST-RELEASE SUPERVISION, IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLANT.

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

      . This Court declines to name minors in cases involving sexual misconduct.


source: Caselaw Access Project

author: MURDOCK, Justice.

license: Public Domain

text:
    EX PARTE Joan McCullough SCOTT (In re: In the Matter of the Estate of Kathryn Marie Lange)
    1140645
    Supreme Court of Alabama.
    October 28, 2016

      John W. Scott and Alexandra M. Shul-man of Scott Dukes & Geisler, P.C., Birmingham, for petitioner.
    Bryant A. Whitmire, Jr., Birmingham; Lange Clark, Birmingham; and Michael C. Skotnicki of Simpson, McMahon, Glick & Burford, PLLC, Birmingham, for respondent Charles Lange Clark, administrator of the estate of.Kathryn Marie Lange.
   MURDOCK, Justice.

Joan McCullough Scott (“Scott”), .an Alabama resident, petitions this Court for a writ of mandamus directing the Jefferson Probate Court to vacate its order requiring all beneficiaries of the estate of Kathryn Marie Lange (“Lange”), deceased (“the estate”), who are residents of Alabama to pay into the probate court distributions they receive from a concurrent administration of the estate in London, England. We grant the petition and issue the writ.

Facts and Procedural History

Lange was born in Birmingham, Alabama, in 1930. In 1953 she married a Danish citizen and moved to Copenhagen. She divorced her husband in 1961, and in 1962 she became a resident of London, England, where she resided until her death on January 4, 2010. Despite living overseas for the majority of her adult life, Lange retained her United States citizenship, and she never became a British citizen.

During Lange’s life, she purchased several parcels of real property in London and a parcel of property in the English countryside. At her death, Lange owned the aforementioned parcels of real property in England, a small sum in an English bank account, some personal property located in England, and approximately $350,000 in personal property located in Alabama.

The Estate Administrations

On January 11, 2010, Lange’s nephew, • Charles. Lange Clark, filed a petition for letters of administration as to the estate in the Jefferson Probate Court. The petition alleged that Lange was domiciled in Jefferson County when she died, that she had no last will and testament, that she left assets in Jefferson County that consisted of approximately $350,000 in personal property and no real property, and that Lange was survived by Clark and his mother (Lange’s sister), Adrienne O’Brien (“O’Brien”), both of whom are residents of Mountain Brook.

The probate court granted Clark’s petition on the day it was filed and issued him letters of administration. All references hereinafter to “Clark” are to Clark in his capacity as administrator. All references hereinafter to the “Jefferson County administration” shall mean the estate administration in the Jefferson Probate Court.

A few days after Clark received letters of administration, he was informed that Lange had a last will and testament (“the will”) and that the will was in the possession of an attorney in England. Clark attempted to obtain a copy of the will, but his attempt was unsuccessful. On January 29, 2010, Clark filed a “Motion for Approval of Expenses” in the probate court seeking funds to hire counsel in London and disclosed the fact that he had received information indicating that Lange had a will. Thereafter, see discussion infra, the probate court entered an order authorizing Clark to hire counsel in London to advise him as to whether an ancillary estate should be opened there and as to questions concerning the validity of the will.

The will was dated December 19, 1985. The will includes several specific bequests of personal property and a residuary devise of Lange’s remaining property, including the parcels of real property noted above, to the trustees of a testamentary trust. The trustees were directed to sell such property or otherwise to convert it into cash for purposes of distribution among 14 individual beneficiaries (“the individual beneficiaries”), one of whom is Scott, and 9 charitable beneficiaries (“the charitable beneficiaries”). Neither O’Brien nor Clark is named as a beneficiary, personal representative, or trustee in the will.

After Clark received information as to the existence of the will, he filed a “caveat” in the relevant court in London, England, preventing the admission of the will to probate pending a determination as to its validity.

On August 6, 2010, Simon Winston, one of the persons named as co-personal representative and cotrustee in the will, filed a motion to intervene in the Jefferson County administration. Winston requested that the Jefferson Probate Court stay further proceedings until the will was properly offered for probate in England. Scott also filed a motion to intervene in the Jefferson County administration, likewise requesting a stay of further proceedings in the probate court.

On August 24, 2010, Clark filed a motion in the probate court requesting that it declare that Lange’s domicile at her death was Jefferson County, Alabama.

On October 1, 2010, the charitable beneficiaries initiated proceedings to establish the validity of the will in the London High Court of Justice, Chancery Division (“the Chancery Court”); it was assigned claim no. HC10C02799. In that proceeding, the charitable beneficiaries named a number of defendants, including O’Brien, who the Chancery Court described as Lange’s “intestacy beneficiary,” and Clark, who the Chancery Court described as Lange’s “administrator under an Alabama grant of letters of administration.” The charitable beneficiaries also named as defendants the individual beneficiaries, Winston, and the other person whom the will nominated as co-personal representative and cotrustee. The Chancery Court appointed Helen Freely, an English solicitor, as “interim” personal representative of the estate in England pending a determination as to the validity of the will.

Clark retained a London law firm, Macfarlanes, LLP (“Macfarlanes”), to represent him in the Chancery Court proceeding. Clark sought to defend against any declaration by the Chancery Court as to the validity of the purported will; he asserted that Lange lacked testamentary capacity when she executed the will.

On October 15, 2010, Winston filed an amendment to his motion to intervene in the probate court. The amendment disclosed that the will had been offered for probate in London, that Clark had appeared in the Chancery Court proceedings to contest the validity of the will, and that the Chancery Court had appointed Freely as interim personal representative as to the estate in England. Winston requested that the probate court stay further proceedings pending the Chancery Court’s determination as to the validity of the will.

Clark also filed a motion in the probate court to which he attached a copy of the will. The motion asserted that Lange was domiciled in Jefferson County at her death and that the will should be offered for probate in the probate court for purposes of determining whether the will was valid. Clark also filed a response to Winston’s and Scott’s respective motions to intervene.

On November 17, 2010, the probate court entered an order in response to Clark’s petition for a declaration as to Lange’s domicile. The order states that Lange’s domicile “was Birmingham, Alabama.” Scott appealed that order to the circuit court.

Eventually, the parties to the Chancery Court proceeding entered into a settlement agreement. On July 12, 2012, the Chancery Court entered an order determining that the will was valid and approving the settlement agreement. Pursuant to the terms of the settlement agreement, the July 2012 order further directed that Freely was to serve as personal representative for purposes of administering the estate in England. Also, the July 2012 order notes that Scott agreed to dismiss her appeal of the probate court’s order as to Lange’s domicile, which Scott subsequently did.

As to Clark, the July 2012 order provided:

“6. There be paid out of the Estate in due course of the administration to [Clark] (1) his costs of and occasioned by the [will contest] in the agreed sum of £265,500, and (2) his accrued and further legal costs of the proceedings pending in Alabama described in the Schedule (insofar as they exceed those already discharged out of the Deceased’s Estate in the USA), up to a maximum sum of £75,000.”

In part, the “Schedule” referred to in the preceding quote describes the Jefferson County administration, “in which the [probate court] has made orders in relation to the domicile of the Deceased.”

As to the distribution of the estate assets that were in dispute between O’Brien and the individual beneficiaries and the charitable beneficiaries, the settlement agreement and the July 2012 order provided that O’Brien was to receive 27.5% of the net residuary estate and that the individual beneficiaries and the charitable beneficiaries were to receive the remaining 72.5% of the net residuary estate. The net residuary estate was defined as

“the net distributable residuary estate of the Deceased in England and the USA[,] that is to say after the payment of all liabilities, taxes, the costs of the proceedings in the USA and of these proceedings to the extent agreed above, together with the costs of administration of the Estate ... and after payment of the pecuniary and specific legacies set-out in the Will.”

As to O’Brien and Clark, the July 2012 order further provides, “[f]or the avoidance of doubt,” that “[t]he percentage sum referred to [as to O’Brien], ... is inclusive of any and all further entitlements that [Clark] or Mrs. O’Brien have or may have in relation to the Estate under Alabama law.” And, the order states:

“The parties agree that it is intended that all such chattels, jewelry and shares as are mentioned in the ‘statement of assets received by [Clark] from the estate of Kathryn Marie Lange Deceased or-which are in the US’ dated 8 December 2011 and attached documents shall be retained by Mr. Clark (as agent for Mrs. O’Brien) and appropriated towards Mrs. O’Brien’s, entitlement under this agreement,”

Finally, the July 2012 order states:

“These terms shall be in full and final settlement of any and all claims that the parties and the Trustee [of the testamentary trust established under Lange’s will] have or may have against each other or the Estate, whether arising out of or in relation to the Estate or the death of the Deceased or otherwise, ⅛ eluding:
“(1) the Claim [the Chancery Court proceeding]; [and]
“(2) the US proceedings [the Jefferson County administration].”

On August 23, 2012, Freely filed a document in the High Court of Justice, Family Division, averring that Lange was domiciled “in England and Wales” at her death and that the Chancery Court had entered an order determining that the will was valid and that letters of administration with the will annexed were to be issued to her. Freely also avowed that she would “collect, get in and administer according to law the ■ real and personal estate of [Lange].”

On September 7, 2012, Clark, O’Brien; Scott, and Winston filed a joint motion in the probate court as to the July 2012 order. The joint motion included a copy of the July 2012 order and requested that the probate court enter an order approving the terms of the July 2012 order and “enforcing its terms regarding the property, assets and proceedings in [England]” and “adopting its terms and conditions insofar as applicable to .the property, assets, costs, accounting and proceedings in the State of Alabama.”

On October 12, 2012, the probate court entered an order approving and adopting the July 2012 order and the terms of the settlement agreement. The probate court’s order further states that the court “retains jurisdiction of this matter and all parties hereto to ensure compliance with the aforesaid [July 2012] order ... and to take such remedial, equitable and other relief necessary if said [o]rder is not complied with.”

On December 13, 2012, the District Registrar of the High Court of Justice, Family Division, issued an order’ stating that Lange was domiciled in “England and Wales” at her death, that her will had been “proved and registered,” and that “[aid-ministration of all the estate which by law devolves to and vests in the personal representative of the said deceased was granted by the said Court on this date to” Freely (“the. English administration”). The order further states that “it appears from the information supplied on the application for this grant that the gross value the said estate in the United Kingdom amounts to £2,393,666 and the net value of such estate amounts to £1,977,534.”

The Macfarlanes Debt

As noted above, Clark retained Macfar-lanes to represent him in the Chancery Court proceedings. Their relationship, however, became the source of additional litigation, See Macfarlanes, LLP v. Clark, No. 2:13-CV-01519-MHH (N.D. Ala. Dec. 24, 2014) (not reported in F. Supp. 3d) (“Macfarlanes I”). As the Macfarlanes I court noted:

“On March 2,2010, the Jefferson County Probate Court entered an ‘Order to Pay Expenses, Hire Counsel and Manage Real Property’ that included the following provision:
“ ‘[T]he Administrator, ■ [Charles] Lange Clark is authorized to hire counsel in London, England to advise him of any and all rights, responsibilities and obligations of [Kathryn Marie Lange’s] estate. He may pay any and all cost to said counsel for managing the estate in London, England from the funds currently in the estate of Kathryn Marie Lange. Also, should any legal documentation be presented in the courts in England, the Administrator is advised to get legal counsel in England to question the validity of said documentation since it has been brought to the attention of this court that the deceased had numerous issues that could have diminished her capacity to make said will or legal documents. It is FURTHER ORDERED that the Administrator is authorized, within reason, to pay any and all expenses for the burial of the deceased, [and] legal fees for the estate in both Birmingham and London.
“After Mr. Clark. contacted Macfar-lanes, the firm sent Mr. Clark an engagement letter. The letter states:
“ “We have identified you as our client for professional purposes and we will only address our bills to you.
“ ‘[B]ased on our current limited knowledge, we would envisage that our fees for [working on the matter of Kathryn Marie Lange’s estate in England] will be in the region of £40,000 to £70,000 plus any VAT and expenses. It is at this early stage impossible to provide an estimate of the eventual costs if this matter were to proceed to a full trial.
“ ‘However, we will write to you separately once the scope of the work required becomes clear. ...
“‘Our services are provided to you solely and exclusively by Macfarlanes LLP.’
“The létter references ‘Terms of Business’ which Mr. Clark acknowledges that he received. The Terms of Business include the following provision:
“ ‘3.6 You will remain responsible for our costs and expenses and we will bill you even if there is an agreement with a third party to pay them on your behalf.’
“Sometime after Macfarlanes began working on the estate issues, Mr. Clark returned a copy of the engagement letter to Macfarlanes. Mr. Clark signed the letter as follows: ‘Lange Clark, Administrator of the estate of Kathryn M. Lange.’
“Macfarlanes billed Mr. Clark for the fees, costs, and expenses associated with the work that the firm performed for the Alabama estate in London. Mr. Clark paid invoices totaling $46,000. He stopped paying Macfarlanes in October of 2010, primarily because the legal fees exceeded Macfarlanes’s original estimates. Clark terminated his relationship with Macfarlanes in December 2010. That same month, Macfarlanes sent him a final invoice for $138,913.70. Mr. Clark did not pay the invoice.
“On February 3, 2012, Macfarlanes filed a claim against Mr. Clark personally in the High Court of Justice, Queen’s Bench Division, in London to recover unpaid legal fees, expenses, and interest. Mr. Clark was served with a copy of that claim personally at his place of business in Alabama on March 2, 2012. On May 17, 2012, Clark, with new counsel, appeared in the collection proceeding. Eventually, the English Court granted the application of Clark’s new counsel to withdraw as solicitors of record because they ... ‘had not received further instructions from their client.’ Mr. Clark did not respond to orders from the English Court or to correspondence from Macfarlanes regarding the proceeding. In short, Mr. Clark did not participate.
“After Mr. Clark failed to respond to an ‘unless order’ from the High Court of Justice, Chancery Division ..., the English court found that Mr. Clark had submitted himself to the jurisdiction of England and Wales and entered judgment against Mr. Clark for £126,611.21. On April 2, 2013, Macfarlanes notified Clark of the judgment by letter and email and demanded payment. Mr. Clark has not satisfied the judgment. Mr. Clark did not appeal the decision of the High Court of Justice.”

(References to record, headings, and footnotes omitted.)

In addition to the foregoing facts that are pertinent to Clark’s dispute with Macfarlanes, we note that on August 28, 2013, Clark sent Freely a letter that states: “As you know, I have been sued by Macfarlanes, LLP for my acts as the duly appointed administrator of my aunt’s estate. I hereby demand that the you, as the administrator of the estate in England, indemnify me for all costs and liability.”

On October 9, 2013, Clark filed a “Motion for Indemnification” in the probate court. Clark requested that the probate court issue an order indemnifying him as to costs incurred in defending against Macfarlanes’s claim and against any judgment issued against him and in favor of Macfarlanes. On November 3, 2013, the probate court issued an order granting Clark’s “Motion for Indemnification.” The order states that the estate “shall indemnify ... Clark for any and all costs incurred in defending” against Macfarlanes’s claim and against any judgment in favor of Macfarlanes and against Clark. We note that, when Clark filed his motion for indemnification, he had already distributed all but $68.99 of the assets in the estate that were subject to his control in the Jefferson County administration. Scott did not object to Clark’s motion for indemnification or to the probate court’s order granting that motion.

On November 21, 2013, Freely, who was not a party to the indemnification proceedings in the probate court, sought instructions from the Chancery Court as to, among other issues, “a claim by Mr. Clark for an indemnity with respect to a claim made against him by his former English solicitors, Macfarlanes, LLP.” Freely’s request for instructions states:

“On 28 August 2013 I received a letter from Mr. Clark claiming an indemnity from the Estate with respect to a claim being made against him for payment of fees by his former English solicitors, Macfarlanes, LLP (‘Macfarlanes’), incurred prior to December 2010. Applications filed by Macfarlanes and Mr. Clark in courts in Alabama ... indicate that on 18 March 2013 Macfarlanes obtained judgment against Mr. Clark for £126,-611.21 with respect to legal fees, interest and costs in proceedings in the English High Court. It appears that Mr. Clark submitted to the jurisdiction with respect to Macfarlanes’ claim but that in his application to the Alabama court Mr. Clark disputes liability on the basis that he retained Macfarlanes in a representative capacity.”

Freely further avers that she informed the individual beneficiaries and the charitable beneficiaries that Clark sought indemnity “for all costs and liabilities” as to Macfar-lanes’s claim against him. Further, Freely noted that the Chancery Court’s July 2012 order approving the settlement agreement appeared to address Clark’s indemnity claim but that she was seeking directions “as to whether [Clark’s] claims or any part of them are to be treated as administration expenses or otherwise paid out of the assets of the Estate.” Counsel for the individual beneficiaries and the charitable beneficiaries responded to Freely’s request for instructions, arguing that Clark’s indemnity claim should be denied based on the terms of the July 2012 order adopting the settlement agreement.

On February 5, 2014, Clark filed a “Witness Statement” in the Chancery Court responding to Freely’s request for instructions and to the opposition of his claim by the individual beneficiaries and charitable beneficiaries. Clark stated: “I am advised that, although [the indemnity] claim [is] good under American law, [that claim] will not be upheld under English law in respect of the English assets and therefore I will not pursue [that claim].”

On May 20, 2014, during proceedings as to Freely’s request for instructions, the Chancery Court noted that Clark had “abandoned his claim” for indemnity as to the English administration and that the claim was “an opportunistic claim which was wholly without merit.” Thereafter the Chancery Court entered an order declaring that Clark “is not entitled to payment for costs allegedly incurred in relation to his administration of the Deceased’s estate in the US ... or any sum as administration expenses.”

On November 11, 2014, Clark filed a “Motion for Escrow” in the probate court. Clark’s motion alleged that “there is only a de minimis amount of funds held in the estate account in Jefferson County, Alabama.” Nevertheless, Clark noted, “there remains (despite a substantial prior distribution by the administrator of the assets held by the English administrator) funds remaining to be distributed by the English administrator.” Clark further stated that “the most practical means to enforce this Honorable Court’s Order on Indemnification ... is to have any and all funds payable to beneficiaries in the State of Alabama paid into this Court pending determination of the costs of indemnification” of Clark.

On November 14, 2014, Scott filed an opposition to Clark’s motion for escrow. Scott argued (1) that the probate court had no jurisdiction to order the escrow of funds paid to Scott from the English administration and (2) that, based on the terms of the settlement agreement, Clark had no claim to such funds. We note that when Scott filed her opposition to Clark’s motion for escrow, Scott already had received distributions from the English administration totaling £54,009.26.

The probate court heard oral arguments as to Clark’s motion for escrow, and, on February 19, 2015, the probate court entered an “Order of Escrow” (“the escrow order”) requiring all beneficiaries of the estate who resided in Alabama to pay into the probate court “the monies due” such beneficiaries. The escrow order further provided that “the disbursement of said funds will be ordered by this Court upon a final settlement in this case or by a consent settlement entered into by all parties and heirs.”

Scott then filed the present petition for a writ of mandamus, requesting that this Court direct the probate court to vacate the escrow order. Thereafter, Scott received an additional £11,842.16 distribution from the English administration..

On July 29, 2016, the United States District Court for the Northern District of Alabama entered a summary judgment in favor of Macfarlanes and against Clark as to Macfarlanes’s claim that the judgment it obtained in England was enforceable against Clark in Alabama. See Macfarlanes, LLP v. Clark, No. 2:13-CV-01519-MHH (N.D. Ala. July 29, 2016) (not reported in F. Supp. 3d) (“Macfarlanes II”).

Standard of Review

Scott argues that the. probate court has no jurisdiction as to the estate assets that come into her possession from the English administration, particularly because such assets derive from real property in England. It .is well settled that questions of jurisdiction — whether lack of subject-matter jurisdiction or lack of jurisdiction over the person or thing at issue— are reviewable by a petition for a writ of mandamus. See, e.g., Ex parte PinnOak Res., LLC, 26 So.3d 1190, 1198 (Ala. 2009) (subject-matter jurisdiction); Elliott v. Van Kleef, 830 So.2d 726, 729 (Ala. 2002) (personal jurisdiction). As to such questions, this.Court’s review is de novo. See, e.g. PinnOak Res., 26 So.3d at 1198; Elliott, 830 So.2d at 729.

As this Court has stated:

“Mandamus is a drastic and extraordinary writ, to be issued only where there is (1) a clear legal right in the petitioner to the order sought; (2) an imperative duty upon the respondent to perform, accompanied by a refusal to do so; (3) the lack of another adequate remedy; and (4) properly invoked jurisdiction of the court.”

Ex parte Integon Corp., 672 So.2d 497, 499 (Ala. 1995).

Analysis

Although the parties disagree over whether Lange was domiciled in England or in Jefferson County at the time of her death, under the facts before us we need not resolve that issue in order to decide whether Scott’s petition is due to be granted. As Scott notes, the assets in which she has an interest, and that are the subject of the escrow order, derive from real property that was located in England and that was not subject to the jurisdiction of the Jefferson Probate Court. It is well settled that

“wills to lands are governed by the lex loci rei sitae. This rule extends not only to manner of execution, but to the construction and legal effect of such devises.
“The rule is founded upon the inherent right of every sovereign state, for its own security and in keeping with its dignity and independence, to regulate the alienation, devise, or descent of real estate within its borders.”

Phillips v. Phillips, 213 Ala. 27, 29, 104 So. 234, 236 (1925) (emphasis added). It is true that

“[t]he estate of a decedent, wherever he may reside at the time of his death, and in however many different States portions of the property and assets may be situate, is one estate. Notwithstanding this unity of estate, if administrations are granted in the different States where the property is located, there is not unity of administration — they are separate and independent of each other. ... Each administrator is accountable in the courts of the State of his appointment, and each administration must be settled where it is granted,”

Equitable Life Assurance Soc’y v. Vogel’s Ex’x, 76 Ala. 441, 446-47 (1884) (emphasis added).

It is undisputed that the assets that are the subject of the escrow order are part of the English administration. It is also undisputed that the court with jurisdiction over the English administration has issued no order directing Freely to distribute assets from that administration directly to Clark or to the probate court for purposes of Clark’s indemnity claim. Indeed, Clark abandoned any such claim after Freely

sought instructions from the Chancery Court regarding the claim. Absent such an order, however, the assets of the estate that are the subject of the English administration are not subject to the jurisdiction of the probate court as part of the Jefferson County administration. See Alen v. Estate of Juddine, 60 So.3d 852, 857 (Aa. 2010) (Bolin,- J., concurring specially) (noting that the administration of an estate is an exercise of in rem jurisdiction and that only the court having jurisdiction over the res may exercise jurisdiction as to that res); 31 Am. Jur. 2d Executors and Administrators § 1 (2012) (“The administration of a decedent’s estate is purely statutory and is in rem, not in personam, in that it conclusively determines the interests of all persons in the property of a decedent within the jurisdiction of the court.”); cf. Penn Gen. Cas. Co. v. Commonwealth of Pennsylvania ex rel. Schnader, 294 U.S. 189, 195, 55 S.Ct. 386, 79 L.Ed. 850 (1935) (discussing the general principles that where “two suits are in rem or quasi in rem, requiring that the court-or its officer have possession or control of the property which is the subject of the suit in order to proceed with the cause and to grant the relief sought, the jurisdiction of one court must of necessity yield to that of the other” and that “the court first assuming jurisdiction over the property may maintain and exercise that jurisdiction to the exclusion of the other”).

In Johnson v. McKinnon, 129 Ala. 223, 226, 29 So. 696, 697 (1901), this Court acknowledged. that an administrator’s “representation of the estate [is] a qualified one” and “[does] not extend beyond the assets of which the court .., appointing him had jurisdiction.” The Court continued:

“In Ela v. Edwards, 13 Allen 48, 95 Mass. 48 [ (Mass. 1866) ], the court held that, if ancillary administration is taken out in another state upon the estate there of a deceased citizen of Massachusetts, a decree of the judge of probate there allowing a claim of the administrator against the estate, and finding a balance due to him over and above the assets then coming to his hands, is not conclusive upon the court of Massachusetts, and will not entitle the administrator to charge for such balance upon his settlement of the estate in that state. ... [T]he two administrations are entirely independent of each other, and there is no privity between the two administrators.”

Johnson, 129 Ala. at 227, 29 So. at 697. See generally 34 C.J.S. Executors and Administrators § 1100 (2009)(“There is no privity between administrators of the same estate appointed in different jurisdictions, or between an executor in one jurisdiction and an ancillary administrator in another. ... Several administrations granted in different jurisdictions on the same estate are each several and distinct, and have no common liability for expense incurred by each.”). And, in Jefferson v. Beall, 117 Ala. 436, 23 So. 44 (1898), this Court stated:

“The accepted theory of administration is that the right and liability is purely representative, and exists only by force of the official character, and so cannot pass beyond the jurisdiction which grants it, and reserves to itself full and exclusive authority over all the assets of the estate within its limits....
“... [I]n this class of cases the defendant is not personally a party, otherwise than as a commissioned representative of the court making the appointment, and for the limits of its jurisdiction; so that beyond that jurisdiction he can exercise no authority or do or omit any act which will affect the due administration of the trust by the local authorities.
“The objection thus goes to the power or jurisdiction of the court over the subject-matter of the administration of assets in a foreign State, in the control of foreign administrators, and to the capacity of the defendant to do any act to the prejudice of the domestic administration. Consent cannot give such jurisdiction, or extend the limited authority of the administration to extra-territorial acts resulting in judgments against the assets of the estate.”

117 Ala. at 439-40, 23 So. at 44-45 (emphasis added).

We find the foregoing principles supportive of our conclusion that Clark may not assert his claim for indemnity against estate assets that are not part of the Jefferson County administration. The probate court has jurisdiction only over the estate assets that are part of the Jefferson County administration.

Further, we note that, even assuming for the sake of argument that Lange was domiciled in Jefferson County at the time of her death and that the English administration is an ancillary administration, Clark abandoned any claim he may have had against the assets from that administration.

“Although, under the law of the ancillary jurisdiction all claims against decedent’s estate may be barred, a proceeding lies in the ancillary jurisdiction for the transfer of assets to the domiciliary jurisdiction for the payment of debts. However, the assets will not be transmitted to the domicile simply for the purpose of subjecting them to certain taxes.
“While there is no question as to the authority of the court in the ancillary jurisdiction to order a residue of assets in that jurisdiction transmitted to the domiciliary representative, the court of one jurisdiction has no authority over the representative of the other to compel him or her to bring in such assets whether it is the court of the domiciliary or of the ancillary jurisdiction.
“As to the proceeds of real estate which still retain the character of that species of property, the ordinary rule with regard to transmitting assets to the domicile of decedent usually does not apply, because the right of succession to real estate is governed by the lex loci rei sitae. However, in some cases where land was ordered sold to pay debts the court having control of the ancillary administration has ordered the surplus proceeds, after payment of local creditors, to be transmitted to the domiciliary representative for the payment of debts.”

34 C.J.S. Executors and Administrators § 1104 (2009) (headings omitted; emphasis added).

By virtue of its escrow order, the Jefferson Probate Court has attempted to exercise control over payments made to Scott from the English administration. Those payments to Scott do not derive from the res over which the Jefferson Probate Court has jurisdiction, i.e., the property that is the subject of the Jefferson County-administration, and the probate court has no power to compel Scott to pay into escrow the property she receives or has received from the English administration as such. Cf. Hanson v. Denckla, 357 U.S. 235, 250, 78 S.Ct. 1228, 2 L.Ed.2d 1283 (1958) (noting that, just as “a State is forbidden to enter a judgment attempting to bind a person over whom it has no jurisdiction, it has even less right to enter a judgment purporting to extinguish the interest of such a person in property over which the court has no jurisdiction”). The escrow order is due to be vacated.

Because the probate court had no jurisdiction to require Scott to place into escrow in the Jefferson County administration property she received from the English administration, we grant the petition, issue the writ, and direct the probate court to vacate the escrow order.

PETITION GRANTED; WRIT ISSUED.

Stuart, Bolin, Parker, Shaw, Main, Wise, and Bryan, JJ., concur.

      . Apparently, an "interim” personal representative is analogous to an administrator ad colligendum, i.e., a temporary personal representative appointed to collect and preserve the decedent's estate until a permanent personal representative can be appointed.

      . Our statement that Scott appealed to the circuit court should not be construed as an affirmation that the order of the probate court as to Lange’s domicile was a final, appealable order.

      . In Macfarlanes I, Macfarlanes filed a petition to enforce its English judgment against Clark. The decision addresses and denies Clark's mbtion to dismiss Macfarlanes’s petition,

      . Scott states that she had no reason to object to the motion because she had no interest in the $68.99 that remained in the Jefferson County administration.

      . Scott notes that she is not challenging the probate court's indemnification order as to Clark. Instead, she is challenging the purported use of estate assets that are not the subject of the Jefferson County administration to fund Clark’s indemnification.

      . Scott further argued that, if "Clark’s escrow theory” were correct, any order must "apply equally to any payment to ... O’Brien.” Indeed, if Clark’s theory were correct, it would appear that the only equitable way to fund his indemnity claim would be on a pro rata basis as to all the beneficiaries of the estate, wherever located.

      . Scott articulates the question before us in terms of subject-matter jurisdiction, but the cases she cites and quotes in support of her argument' involve concepts of personal jurisdiction, see Ex parte Trust Co. of Virginia, 96 So.3d 67, 69 (Ala. 2012), and in rem jurisdiction, see Hanson v. Derickla, 357 U.S. 235, 246-50, 78 S.Ct. 1228, 2 L.Ed.2d 1283 (1958). Also Scott’s arguments are couched in terms of a lack of jurisdiction or authority "to seize property not belonging to or in possession of the Jefferson County Estate,” i.e., in rem jurisdiction. Clark has not been prejudiced by Scott's lack of precision in her argument; Clark’s brief in answer to the petition responds to Scott’s in rem jurisdiction argument.

      .- Based on the orders we have been provided from the Chancery. Court proceedings, England likewise follows the rule of lex loci rei sitae.

      . Although not discussed by Scott, it also appears that those assets derivé from her interest in an English testamentary trust, over which the Jefferson Probate Court has no jurisdiction.

      . Clark argues that the Court of Civil Appeals’ decision in Leonard v. Woodruff, 204 So. 3d 901 (Ala. Civ. App. 2016), supports the probate court’s escrow order. Leonard addresses whether a personal representative may recover attorney fees from a beneficiary who filed a civil action in another jurisdiction in an effort to unravel a property disposition that occurred before the decedent’s death. Leonard does not address whether a beneficiary must surrender to an Alabama probate court assets he or she receives from an estate administration in another jurisdiction.


author: MOORE, Judge.

text:
    Jamie D. HAMMACK v. Benjamin D. MOXCEY.
    2150163.
    Court of Civil Appeals of Alabama.
    July 1, 2016.
    Rehearing Denied Aug. 26, 2016.
    Certiorari Denied Oct. 21, 2016 Alabama Supreme Court 1151256.

      Robert E. Lusk, Jr., of Lusk Law Firm, LLC, Fairhope; and Clatus Junkin.of Jun-kin, Pearson, Harrison, Junkin & Pate, Fayette, for appellant.
    Jeffery D. Toney, Sr., Crestview, Florida, for appellee.
   MOORE, Judge.

Jamie D. Hammack (“the mother”) appeals from a judgment entered by the Fayette Circuit Court (“the Alabama trial court”) enforcing a September 2013 pickup order issued by the Circuit Court of Oka-loosa County, Florida (“the Florida court”). We affirm the trial court’s judgment.

The mother and Benjamin D. Moxcey (“the father”) entered into a brief, nonmar-ital relationship resulting in the birth of R.J.M, (“the child”) on March 23, 2011. The father, a, Florida resident, filed a paternity and custody action in the Florida court in 2012. On March 18, 2013, the Florida court conducted a trial in that action, resulting in the entry of a final judgment on March 20, 2013, awarding the father custody of the child; the Florida court subsequently issued a pickup order (“the first pickup order”) regarding the child based on its judgment. Despite the proceedings in the Florida court, on April 17, 2013, the mother commenced in the Alabama trial court an action seeking a determination of custody, visitation, and child support. Based on its conclusion that the Florida court had continuing, exclusive jurisdiction over the issues, the Alabama trial court dismissed the complaint filed by the mother. This court later affirmed the judgment of dismissal. See Hammack v. Moxcey (No. 2120156, Feb. 21, 2014), 177 So.3d 481 (Ala.Civ.App. 2014) (table).

While the action commenced by the mother was pending, the father filed in the Alabama trial court a complaint to enforce the first pickup order. The Alabama trial court conducted an evidentiary hearing in that action, after which it entered an order on July 15, 2013, that dismissed the enforcement action; that order provided, in pertinent part:

“This case is before the Court on a Petition to Domesticate Foreign Decree and Enforce Same of [the father]. The [father] seeks to enforce the Order to Pick-Up Minor Child and said Order is based on an order entitled ‘Final Judgment of Paternity.’ Both Orders are out of the State of Florida. Based upon the evidence presented in the hearing the Court finds as follows:
“1. Under the Code of Alabama, 1975, § 30 — [3B]—308 the [mother] was entitled to notice in the Florida case. Notice was not given in accordance with § 30-3B-108 of the Code of Alabama, 1975.
“2. The testimony was that [the mother] did not receive notice of the final hearing in Florida until after the trial itself. Such notice was purported to be sent to [the mother’s] Alabama address approximately eleven (11) days prior to the trial.
“3. Under the Constitution [the mother] did not have notice and opportunity to be heard which is basic due process.
“Therefore the Motion to Dismiss of [the mother] is granted and the Petition of [the father] is hereby dismissed.”

The father did not appeal that judgment.

On September 6, 2013, the father orally moved the Florida court to issue another pickup order, which the Florida court granted. On September 26, 2013, the Florida court issued a second pickup order (“the second pickup order”) in the same action in which the first pickup order had been entered. On March 26, 2015, the father filed a complaint requesting the Alabama trial court to “domesticate” the second pickup order. After obtaining service on the mother, the Alabama trial court conducted a nonevidentiary hearing on May 28, 2015, to determine whether to register and to enforce the second pickup order. On June 9, 2015, the Alabama trial court entered an order (“the Alabama judgment”) registering the second pickup order and commanding the mother to turn over the child to the father on July 18, 2015, which order it amended sua sponte on June 17, 2015, without making any substantive changes.

In registering the second pickup order, the Alabama trial court relied on Ala.Code 1975, § 30-3B-305, a part of Alabama’s codification of the Uniform Child Custody Jurisdiction and Enforcement Act (“the UCCJEA”), § 30-3B-101 et seq., Ala.Code 1975; however, that statute requires registration of only “[a] child custody determination,” which is defined as “[a] judgment, decree, or other order of a court providing for the legal custody, physical custody, or visitation with respect to a child.” Ala.Code 1975, § 30-3B-102(3). A pickup order is not a “child custody determination” but is an order enforcing a child custody determination. Arkansas Dep’t of Human Servs. v. Cox, 349 Ark. 205, 82 S.W.3d 806 (2002); see also H.T. v. Cleburne Cty. Dep’t of Human Res., 163 So.3d 1054, 1058 n. 3 (Ala.Civ.App.2014). Therefore, the Aabama trial court was not required to register the second pickup order under § 30-3B-305 in order for that order to be enforced in Aabama. Thus, any error the Aabama trial court may have committed in registering the second pickup order could not have prejudiced the substantial rights of the mother so as to warrant reversal of the Aabama judgment. See Rule 45, Ala. R.App. P.

The Aabama trial court based its decision to enforce the second pickup order on Aa.Code 1975, § 30-3B-313, which provides:

“A court of this state shall accord full faith and credit to an order issued by another state and consistent with this chapter [i.e., the UCCJEA] which enforces a child custody determination by a court of another state unless the order has been vacated, stayed, or modified by a court having jurisdiction to do so under Aticle 2 [of the UCCJEA].”

By the terms of that statute, an Aabama court must give “full faith and credit,” i.e„ “recognition, acceptance, and enforcement,” Black’s Law Dictionary 786 (10th ed.2014), to another state’s pickup order if that order has been issued “consistent with” the UCCJEA.

On July 8, 2015, the mother filed a motion to alter, amend, or vacate the Aa-bama judgment, asserting that the second pickup order had not been issued “consistent with” the UCCJEA. The mother pointed out that, before the Florida court could make a child custody determination regarding the child, she was entitled to notice and an opportunity to be heard. See Fla. Stat § 61.518(1); Ala.Code 1975, § 30-3B-205. The mother attached to her postjudgment motion her affidavit in which she attested, in pertinent part:

“On February 16, 2012, the [father] filed a Petition to Determine Paternity in the [Florida court] asserting that he is the father of [the child]. I did not receive notice of that hearing and was not given the opportunity to be present and be heard before that court that made a child custody and visitation order.”

The mother argued that the Aabama trial court could not enforce the second pickup order because she was “entitled to notice, but notice was not given in accordance with the standards of Section 30-3B-108, [Ala.Code 1975,] in the proceedings before the court that issued the order for which enforcement is sought.” Ala.Code 1975, § 30-3B-308(d)(l)c. The mother moved the Alabama trial court to vacate the Alabama judgment. That same date, the mother also moved the Alabama trial court to stay enforcement of the Alabama judgment.

On July 10, 2015, the Alabama trial court entered an order staying enforcement of the Alabama judgment and ordering a hearing on the mother’s post-judgment motion. After that hearing, the Alabama trial court entered an order on October 1, 2015, amending the Alabama judgment. In the amended judgment, the Alabama trial court maintained that the second pickup order would be enforced but ordered that, pursuant to its exercise of temporary emergency jurisdiction, the exchange of custody would not occur until December 26, 2015, after the father and the child had participated in three “face-to-face” visits. On November 12, 2015, the mother filed her notice of appeal to this court. The Alabama trial court granted the mother’s motion to stay enforcement of the amended Alabama judgment on December 9, 2015.

The mother argues that the Alabama trial court erred in enforcing the second pickup order because, she says, she did not receive notice of the March 18, 2013, trial upon which the Florida court based its March 20, 2013, child custody determination. The record does not affirmatively establish that the Florida court issued the second pickup order to enforce its March 20, 2013, judgment. The second pickup order states on its face only that it was issued in response to a September 6, 2013, motion made by the father. However, the parties are in agreement that the Florida court entered the only custody determination relating to the child on March 20, 2013, and the record contains no other basis upon which the second pickup order could have been issued. Thus, we treat the second pickup order as an order enforcing the March 20, 2013, child custody determination.

Under Ala.Code 1975, § 30-3B-313, an Alabama court must enforce a foreign pickup order so long as it was entered in accordance with the UCCJEA. Section 30-3B-205(a), Ala.Code 1975, a part of the UCCJEA, provides:

“Before a child custody determination is made under this chapter [i.e., the UC-CJEA], notice and an opportunity to be heard in accordance with the standards of Section 30-3B-108 must be given to all persons entitled to notice under the law of this state as in child custody proceedings between residents of this state, any parent whose parental rights have not been previously terminated, and any person having physical custody of the child.”

See also Fla. Stat. § 61.518(1) (substantially similar to § 30-3B-205(a)). Section 30-3B-205(a) requires a court making a child custody determination to give notice and an opportunity to be heard “in accordance with the standards of Section 30-3B-108” to a parent with ongoing parental rights. Section 30-3B-108, Ala.Code 1976, a part of the UCCJEA, provides:

“(a)' Notice required for the exercise of jurisdiction when a person is outside this state may be given in a mariner prescribed by the law of this state for service of process. Notice must be giv•'en in a manner reasonably calculated to give actual notice but may be by publication if other means are not effective.
“(b) Proof of service may be made in the manner prescribed by the law of this state.
“(c) Notice is not required for the exercise of jurisdiction with respect to- a person who submits to the jurisdiction of the court.”

See also Fla. Stat. § 61.509 (substantially similar to § 30-3B-108 but requiring service and proof of service in accordance with “the laws of the state in which service is made”). Section 30-3B-108 requires a court exercisirig jurisdiction over child custody proceedings to notify each parent of the child at issue so' that each parent is afforded an opportunity to be heard on the merits of the case. See, e.g., Blanchette v. Blanchette, 476 S.W.3d 273 (Mo.2015) (interpreting Mo.Rev.Stat. § 452.762, which requires service and proof of service in accordance with “the law of this state” or “the law of the state in which the service is made”). In that regard, § 30-3B-108 coincides with 28 U.S.C. § 1738A(e), a part of the Parental Kidnapping Prevention Act (“the PKPA”), which provides:

“Before a child custody or visitation determination is made, reasonable notice and opportunity to be heard shall be given to the contestants, any parent whose parental rights have not been previously terminated and any person who has physical custody of a child.”

See Ex parte C.J.A., 12 So.3d 1214, 1216 (Ala.Civ.App.2009).

. In this case, it is undisputed that the mother had received notice of the Florida child custody proceedings and that she had appeared with counsel in . those proceedings so that she had submitted to the jurisdiction of the Florida court. Accordingly, under the UCCJEA, the. Florida court did not have to formally notify the mother further that it would continue to exercise jurisdiction oyer the case. The question, however, is whether a court, in exercising its continuing jurisdiction, must notify a parent of the trial of the child custody dispute in order to meet the requirements regarding notice and an opportunity to be heard under the UCCJEA and the PKPA.

Although it is clear that a court need not give full faith and credit to a foreign judgment entered without procedural due process, see Pirtek USA, LLC v. Whitehead, 51 So.3d 291 (Ala.2010), the failure of a court to give notice to a party of a trial setting does hot necessarily imply a denial of due process. In fact, the rule prevailing in this state is that the failure of the clerk of the court to notify a party of a trial setting does not violate procedural due process unless the evidence shows that the clerk voluntarily assumed responsibility of notifying the parties and negligently failed to do so. Ex parte Weeks, 611 So.2d 259, 262 (Ala.1992).. In the proceedings below, the mother did not present any Florida law to the contrary, see Whitworth v. Dodd, 435 So.2d 1305, 1307 (Ala.Civ.App.1983) (“The courts of Alabama do not take judicial notice of the law of a sister state, whether statutory or otherwise.”), so the Alabama trial court was required to presume the law was the same in Florida. See International Paper Co. v. Curry, 243 Ala. 228, 238, 9 So.2d 8, 17 (1942). Accordingly, lack of notice of a trial date did not necessarily render the Florida child custody determination unenforceable.

In this case, the Alabama trial court had already determined in the earlier enforcement action filed by the father that the mother did not receive adequate notice of the March 18, 2013, trial setting in the Florida child custody proceedings. The father ordinarily would be prohibited from relitigating that issue under the doctrine of collateral estoppel, see Ex parte Flexible Prods. Co., 915 So.2d 34 (Ala. 2005), but the mother did not raise that affirmative defense to the Alabama trial court, so she waived any claim that the issue had already been conclusively decided. See Gatlin v. Joiner, 31 So.3d 126, 133 n. 5 (Ala.Civ.App.2009). Furthermore, it does not appear that the father or the mother referenced the Alabama trial court’s July 15, 2013, dismissal order in any pleadings or motions such that the Alabama trial court could properly have taken judicial notice of the contents of that order. See Garrett v. Gilley, 488 So.2d 1360, 1362 (Ala.1986). Thus, the Alabama trial court was again faced with the factual question whether the mother had received the required notice and an opportunity to be heard in the Florida child custody proceedings.

The UCCJEA generally places the burden of proof on the party contesting the validity of a foreign judgment. See Ala.Code 1975, § 30-3B-308(d)(1)c. In this case, the mother presented only her affidavit as evidence to support her position. In that affidavit, the mother attested that she had not received notice of that “hearing,” presumably referencing the March 18, 2013, trial in the Florida court. She did not assert that the Florida court had undertaken a duty to notify her of the trial setting or that it had negligently failed to send her notice. Even assuming that the Florida court had assumed the duty, due process requires only notice “reasonably calculated, under all the circumstances, to apprise interested parties of the pendency of the action and afford them an opportunity to present their objections.” Mullane v. Central Hanover Bank & Trust Co., 339 U.S. 306, 314, 70 S.Ct. 652, 94 L.Ed. 865 (1950). The mother presented no evidence indicating that the Florida court had failed to send out a notice complying with that standard; she asserted only that she did not receive the notice. Under these circumstances, the record does not contain sufficient evidence from which the Alabama trial court could have determined that the Florida court had failed to provide the mother the required notice and an opportunity to be heard.

In the absence of proof that the Florida court exercised its jurisdiction to award the father custody of the child in a manner inconsistent with due process, the Alabama trial court correctly determined that the second pickup order was entitled to full faith and credit under Ala.Code 1975, § 30-3B-313, as a proper exercise of the Florida court’s continuing jurisdiction over the case. The mother has not raised any other meritorious arguments, so we affirm the Alabama trial court’s judgment, as amended.

AFFIRMED.

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

      . The court hereby takes judicial notice of the record from the previous appeal. See Morrow v. Gibson, 827 So.2d 756, 762 (Ala.2002) (" ‘This court takes judicial notice or has judicial knowledge of contents of it records with reference to its previous consideration of litigation presently before it.’ " (quoting FDIC v. Equitable Life Assurance Soc’y of the United States, 289 Ala. 192, 194, 266 So.2d 752, 753 (1972))).

      . The mother argues that the father did not request enforcement of the second pickup order but, instead, merely requested registration of that order. We note, however, that the body of the father's complaint clearly requests enforcement of the second pickup order. See, e.g., Union Springs Tel. Co. v. Green, 285 Ala. 114, 117, 229 So.2d 503, 505 (1969) ("The rule is that the character of a pleading is determined and interpreted from its essential substance, and not from its descriptive name or title.”). Therefore, we find the mother's argument regarding this issue to be without merit.

      . Because the mother did not raise the issue in the trial court, we do not further discuss the proper procedure to be followed in order to obtain enforcement of a foreign pickup order.

      . The Alabama trial cotirt had ordered the father to submit to drug testing, but the father had not complied with that order by December 7, 2015. The mother moved the Alabama trial court to stay enforcement of its amended judgment based, in part, on the father’s noncompliance with that order. The Alabama trial court granted the motion for a stay. On December 11, 2015, the father filed in this court a motion to vacate the stay or, in the alternative, a petition for a writ of mandamus directing the Alabama trial court to vacate its stay. This court elected to treat the father’s filing as a petition for a writ of mandamus and denied the father’s petition. Ex parte Moxcey (No. 2150269, Dec. 11, 2015), — So.3d (Ala.Civ.App.2015) (table).