text:
    STATE of Louisiana v. Andrew J. HUNTER, Jr.
    NO. 2018-KA-0206
    Court of Appeal of Louisiana, Fourth Circuit.
    August 22, 2018
    Leon Cannizzaro, District Attorney, Michael Danon, Assistant District Attorney, Orleans Parish, 619 S. White Street, New Orleans, LA 70119, COUNSEL FOR APPELLEE/STATE OF LOUISIANA
    Sherry Watters, Louisiana Appellate Project, P. O. Box 58769, New Orleans, LA 70158, COUNSEL FOR DEFENDANT/APPELLANT
    (Court composed of Judge Edwin A. Lombard, Judge Roland L. Belsome, Judge Sandra Cabrina Jenkins )
    Judge Roland L. Belsome The defendant, Andrew Hunter, Jr., challenges his convictions and sentences for the rape of a seven year old female.
    Facts
    The facts giving rise to the defendant's indictment and conviction occurred in the early morning hours of October 17, 2014, at the victim's home on Franklin Avenue in New Orleans. A man with shoulder-length dreadlocks, later identified as the twenty-three year old defendant, entered the home, where he woke seven-year-old A.S. and told her to get up and lock the back door. When A.S. got up, she went to the bathroom, where the defendant pulled her clothes down and raped her. After the defendant lured A.S. to the laundry room, he sexually assaulted her again, put a gun to her face, and tied her up. The defendant then told A.S. to count to fifty and left.
    A.S.'s mother reported that she got up at 5:00 a.m. to lock the door after her brother, Donald Smith, left for work, and then went into her daughter's room to get her ready for school, but A.S. was not in bed. A.S.'s mother began looking for her and eventually went into the laundry room, where she found her partially nude and bound, gagged, and blindfolded under a pile of clothes. A.S.'s mother called 911 and A.S. was transported to Children's Hospital, where Dr. Neha Mehta performed a sexual assault examination and the Children's Advocacy Center's ("CAC") interviewer, Dan Dooley, conducted a forensic interview. Dr. Mehta later informed Detective Jounay Ross that A.S. tested positive for chlamydia; this information prompted Det. Ross to contact A.S.'s mother, who said she was previously infected with chlamydia by a male friend, the defendant. A.S.'s mother later provided Det. Ross with an address where she could locate him.
    Det. Ross visited the address and spoke with the defendant, who matched A.S.'s description. The defendant was aware of A.S.'s rape and agreed to provide a DNA sample. Louisiana State Police Crime Lab analyst Elizabeth Hamilton analyzed the defendant's DNA sample and it matched the DNA collected from A.S.'s sexual assault kit. The Orleans Parish District Attorney's Office contacted Det. Ross and informed her. Det. Ross obtained an arrest warrant for the defendant and later found him hiding in the attic of his mother's house in Hammond, Louisiana, where he was arrested on December 22, 2014.
    Procedural History
    The defendant was charged by bill of indictment with two counts of first-degree rape, in violation of La. R.S. 14:42 ; one count of aggravated burglary, in violation of La. R.S. 14:60 ; one count of aggravated kidnapping, in violation of La. R.S. 14:44 ; and one count of sexual battery of a victim under thirteen years of age, in violation of La. R.S. 14:43.1(C)(2). The charge of aggravated kidnapping was subsequently amended to second-degree kidnapping in violation of La. R.S. 14:44.1. The defendant appeared before the trial court and pled not guilty to the charges. Additionally, the defendant filed several pre-trial motions, including a motion to suppress evidence, which was ultimately denied. The matter proceeded to trial on August 9, 2017, and a jury found the defendant guilty on all charges.
    The defendant was sentenced to life imprisonment without benefit of probation, parole, or suspension of sentence for each count of first-degree rape. Further, the defendant was sentenced to forty years without benefit of probation, parole, or suspension of sentence for the charges of aggravated burglary and second-degree kidnapping, and fifty years without benefit of probation, parole, or suspension of sentence for the charge of sexual battery of a person under thirteen years of age. The defendant neither objected nor filed a motion to reconsider sentence; rather, he filed a motion to appeal, which the trial court granted.
    Errors Patent
    A review of the record for errors patent reveals one. The defendant was convicted of aggravated burglary in violation of La. R.S. 14:60 and sentenced to forty years at hard labor without the benefit of probation, parole, or suspension of sentence, in excess of the maximum of thirty years currently authorized by statute. Accordingly, we must vacate the defendant's sentence as to that charge and remand the matter to the trial court for resentencing of the aggravated burglary conviction.
   Assignments of Error

On appeal, the defendant asserts three assignments of error:

1. The State failed to prove beyond a reasonable doubt that the defendant was guilty of second-degree kidnapping in violation of La. R.S. 14:44.1.
2. The trial court erred in denying the defendant his due process right to a fair trial which constitutes reversible error.
3. The trial court erred in imposing excessive sentences upon the defendant which constitutes an abuse of discretion.

Sufficiency of the Evidence (Second -Degree Kidnapping)

In his first assignment of error, the defendant challenges the sufficiency of the evidence to support his conviction for second-degree kidnapping. In evaluating whether evidence is constitutionally sufficient to support a conviction, an appellate court must determine whether, viewing the evidence in a light most favorable to the prosecution, any rational trier of fact could have found the defendant guilty beyond a reasonable doubt. Jackson v. Virginia , 443 U.S. 307, 319, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). This Court, in State v. Gibson , 15-1390, p.5 (La. App. 4 Cir. 7/6/15), 197 So.3d 692, 696 stated that the Jackson standard is legislatively embodied in La. C. Cr. P. art. 821(B), which provides that "a post-verdict judgment of acquittal shall be granted only if the court finds that the evidence, viewed in a light most favorable to the state, does not reasonably permit a finding of guilty."

However, a reviewing court is not permitted to consider just the evidence most favorable to the prosecution, but must consider the record as a whole. Id. If rational triers of fact could disagree as to the interpretation of the evidence, the rational trier's view of all the evidence most favorable to the prosecution should be adopted. Id. Additionally, "a factfinder's credibility decision should not be disturbed unless it is clearly contrary to the evidence." Id.

La. R.S. 14:44.1 provides, in pertinent part:

A. Second degree kidnapping is the doing of any of the acts listed in Subsection B wherein the victim is:

(1) Used as a shield or hostage;
(2) Used to facilitate the commission of a felony or the flight after an attempt to commit or the commission of a felony;
(3) Physically injured or sexually abused;
(4) Imprisoned or kidnapped for seventy-two or more hours, except as provided in R.S. 14:45(A)(4) or (5) ; or
(5) Imprisoned or kidnapped when the offender is armed with a dangerous weapon or leads the victim to reasonably believe he is armed with a dangerous weapon.

B. For purposes of this Section, kidnapping is:

(1) The forcible seizing and carrying of any person from one place to another; or
(2) The enticing or persuading of any person to go from one place to another; or
(3) The imprisoning or forcible secreting of any person.

The defendant's primary contention is that the State failed to prove beyond a reasonable doubt that a kidnapping occurred. The defendant contends that he never carried "any person from one place to another" as required by La. R.S. 14:44.1(B)(1). However, only one of the three enumerated acts in La. R.S. 14:44.1 must have occurred to satisfy the statute's requirements. As we did in State v. Gibson , we find that the defendant's actions clearly satisfy La. R.S. 14:44.1(B)(3) - namely, that he "imprisoned or forcibly secreted" A.S. 15-1390, p. 7, 197 So.3d at 698. This court in State v. Williams , 2002-0260 (La. App. 4 Cir. 3/12/03), 842 So.2d 1143, found that moving of victim within their home satisfied this very element.

Here, the record shows that the defendant bound, gagged, and blindfolded A.S. before hiding her under a pile of clothes in the laundry room. These actions are clearly sufficient to show that defendant "imprisoned or forcibly secreted" her. For these reasons, we find that there was sufficient evidence to convict defendant of second-degree kidnapping.

Denial of Due Process Rights

In his second assignment of error, the defendant sets forth several arguments revolving around the central assertion that he was denied his due process right to a fair trial. We address each argument individually below.

Prejudicial Comments and Bias by the Court

The defendant asserts that the trial court made disparaging remarks to defense counsel that prejudiced the jury against the defendant.

Article I, Section 16 of the Louisiana Constitution grants the defendant the right "to an impartial jury and a fair trial." La. Const. art. I, § 16. During a jury trial, the judge must act as a neutral administrator of the law. State v. Diggins , 12-0015, p. 13 (La. App. 4 Cir. 10/23/13), 126 So.3d 770, 784. In discharging this duty, the judge must refrain from commenting upon the facts of the case in the presence of the jury, either by commenting on evidence or testimony or by giving an opinion as to what has been presented, proved, or not proved. La. C.Cr.P. art. 772. If, during trial, a defendant believes that the trial court commented improperly on the evidence, or made prejudicial comments in the presence of the jury, then defendant should object or move for a mistrial. La. C.Cr.P. arts. 770, 775. A motion for mistrial or a contemporaneous objection to the alleged prejudicial comments or judicial bias preserves the issue for review on appeal. La. C.Cr.P. art. 841.

Because an appellate court reviews claims of prejudicial comments and bias using a harmless error analysis, the relevant inquiry is whether the guilty verdict actually rendered in this trial was surely unattributable to the error. Diggins , 12-0015, p.14, 126 So.3d at 784. Moreover, the cumulative effect of harmless errors does not warrant the reversal of a conviction or sentence. State v. Smith , 11-0091, p.21 (La. App. 4 Cir. 7/11/12), 96 So.3d 678, 691. In order to constitute reversible error, the judge's improper comments must be such as to have influenced the jury and contributed to the verdict, thereby denying the defendant a fair trial. Id.

Defendant cites several instances of alleged prejudicial comments or disparaging remarks by the trial court towards defense counsel, as follows:

1. As counsel was presenting his request for an attachment, the Court said, "Okay, this is ridiculous. First of all, let me say this: you go from A to Z, right. So why don't you start at A? If you're asking me to issue a subpoena to the gentleman at his employment - and if you know the address - that's all you have to do. And you know you haven't even completed your sentence ..."
2. After more argument about the witness, "[Defense Counsel], have a seat, sir. You are about two seconds away from me holding you in contempt again. Right. Let me be honest with you. So I'm not going to play this game with you in this trial today. So I am putting you on notice that you need to conduct yourself professionally and ethically throughout this trial. Now, I will attempt not to embarrass you in front of this jury. I will ask that you not embarrass yourself. But, [Defense Counsel], I'm telling you - and I'm putting you on notice right now - that I'm not going to deal with this."
3. During cross-examination of A.S.'s mother, the following exchange occurred:
Court: You have to let her finish answering the question. You're cutting her off. This is my last time instructing you of this, [Defense Counsel].
[Defense Counsel]: What's the instruction?
Court: That you have to let her finish answering the question. She can't ...
[Defense Counsel]: I agree.
4. During cross-examination of Det. Ross, the following exchange occurred:
Court: All right. Hold on one second. So you need to ask a question, 'cause those are statements. So I'm going to need you to direct a question to the witness.
[Defense Counsel]: Sure. I consider her an adverse witness and I'm cross-examining her.
Court: She's not been determined to be adverse. So you need to ask a question.
[Defense Counsel]: Can I ask her leading questions, as a direct cross-examination?
Court: No. You have to ask her a question, [Defense Counsel]. And then I'll take it question by question. If they have an objection, then I'll rule on it. But right now you're making statements. So I need you to ask a question.
[Defense Counsel]: Ok.
5. After discussion about service on a witness, the following exchange occurred:
Court: Let me just say a few things, [Defense Counsel]. Number one - and I want to be clear - because you're not a competent attorney. But I do want to be clear that you're speaking in circles. And some of the things you're saying don't really make much sense. Ok.
[Defense Counsel]: I'm sorry.
Court: [Defense Counsel], you're very disingenuous. And it is ridiculous that you would stand -
[Defense Counsel]: Now...
Court: before this Court and not -
[Defense Counsel]: May I finish?
Court: - be truthful.
6. Next instance:
Court: And it is not the first time. It is not the second time.
[Defense Counsel]: Oh no. No, ma'am.
Court: And I take extreme offense -
[Defense Counsel]: Me, too.
Court: a - to the way you practice law, to your unprofessionalism. Let me tell you -

The trial court has a duty to maintain control over the questioning of witnesses and presentation of evidence to the jury. In addressing similar comments made by the trial court in State v. Jones , this Court noted,

A trial judge has the responsibility to exercise control over the nature of the questions posed by counsel to ensure fairness and judicial economy. An unavoidable risk of this duty is that in the heat of a trial, adverse rulings may incorrectly appear to reflect the judge's opinion of a party, witness or theory of the case. Experienced trial lawyers aware of this risk weigh seriously these concerns in phrasing questions to a witness. Thus, the risk exerts a moderating influence on the excesses of advocacy.

State v. Jones , 593 So.2d 802, 804 (La. App. 4th Cir. 1992).

In Jones , the defendant complained of the trial court's comment that defense counsel's questioning of a witness was "out of line." Id at 803. Similarly, in this case, the bulk of defense counsel's complaints reference the trial court's comments that defense counsel was unprofessional. In this case, as in Jones , we find that these comments do not evince impartiality or bias. "The challenged remark of the trial judge, whether inappropriate or not, does not rise to the level of a prejudicial error which requires reversal. Standing alone, the remark does not evidence the judge's abandonment of neutrality which is required to constitute prejudicial error." Id at 804.

Upon our review of the cited comments and remarks together with the overwhelming evidence, we find no merit to the defendant's argument that the trial court's comments prejudiced the jury and contributed to the verdict.

The defendant further asserts that the trial court displayed bias toward A.S. when she was allowed to walk into court and take a piece of candy from the minute clerk's desk similar to State v. Cook , 485 So.2d 606 (La. App. 4 Cir. 1986). In Cook , this Court held that the trial judge's decision to reward the child witness with candy in the presence of the jury could be viewed by the jury as an indirect comment on this witness' veracity, which amounted to reversible error. Id at 609. However, the facts here are distinguishable. In the case sub judice , the State had A.S. briefly appear in court to show her availability to testify. Before leaving, A.S. took candy from the minute clerk's desk on her own initiative, without prompting or comment by the trial judge. Accordingly, we find no merit to defendant's argument that bias influenced the jury and denied him a fair trial.

Denial of Defense

Defendant next asserts that he was denied a complete defense because he was deprived of his right to confront or cross-examine A.S.

Article I, Section 16 of the Louisiana Constitution also grants the defendant the right "to confront and cross-examine the witnesses against him, to compel the attendance of witnesses, [and] to present a defense." La. Const. art. I, § 16. The Sixth Amendment to the United States Constitution similarly bars "admission of testimonial statements of a witness who did not appear at trial unless he was unavailable to testify, and the defendant had had a prior opportunity for cross-examination." Crawford v. Washington , 541 U.S. 36, 54-55, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004). However, public policy considerations may take precedence over face-to-face confrontation. Maryland v. Craig , 497 U.S. 836, 849, 110 S.Ct. 3157, 111 L.Ed.2d 666 (1990).

Louisiana is one of several states that have established procedures to protect child victims of sexual abuse who testify at trial from unnecessary trauma. State v. McClendon , 17-0160, p.21 (La. App. 4 Cir. 9/27/17), 228 So.3d 252, 265. Furthermore, the Louisiana Supreme Court has found a defendant's right to confrontation is preserved so long as the witness is available to testify. State v. Kennedy , 05-1981, pp.22-23 (La. 5/22/07), 957 So.2d 757, 773, cert granted , 552 U.S. 1087, 128 S.Ct. 829, 169 L.Ed.2d 625, judgment reversed on other grounds , 554 U.S. 407, 128 S.Ct. 2641, 171 L.Ed.2d 525. Confrontation clause violations are subject to a harmless error analysis. State v. Patterson , 16-1104, p. 20 (La. App. 4 Cir. 3/7/18), 241 So.3d 433, 447.

In the matter before us, the State announced, and the trial court acknowledged, that A.S. was available to testify, yet the defendant did not call her. We find no merit to defendant's argument that he was deprived of his right to confront A.S.

Defendant further asserts that he was denied a complete defense because he was deprived of his right to compulsory process.

Article I, Section 9 of the Louisiana Constitution provides the defendant with the right to compulsory process for obtaining witnesses in his favor. La. Const. art. I, § 9. This right includes the right to demand subpoenas and the right to have them served. State v. Lamizana , 16-1017, p. 2 (La. App. 4 Cir. 5/31/17), 222 So.3d 58, 60. Yet, the right to compulsory process is predicated on the exercise of due diligence by the defendant. State v. Hattaway , 180 La. 12, 18, 156 So. 159, 161 (1934). This Court has recognized that for a defendant to demonstrate error, he must prove that the absent witness testimony would have been favorable to the defense as well as the possibility of a different result if the witness were to testify. State v. Duplessis , 00-2122, pp. 12-13 (La. App. 4 Cir. 3/28/01), 785 So.2d 939, 947. Compulsory process violations are also subject to a harmless error analysis. State v. Jackson , 12-0090, p. 14 (La. App. 4 Cir. 4/24/13), 115 So.3d 1155, 1166.

In this case, the defendant alleges that the trial court failed to assist him in serving instanter subpoenas for two witnesses, Donald Smith and David Rue, because the court declined to permit service "wherever found." Despite this prohibition, a special process server served Mr. Smith on his route as a garbage collector, rather than at the local headquarters for his company, on August 10, 2017, the second day of the trial. Mr. Smith refused to accept service but subsequently appeared in court on August 11, 2017, with the State's assistance. However, the defendant did not call Mr. Smith to testify. The defendant's argument here is moot.

The defendant further alleges that the trial court failed to assist him in issuing a second instanter subpoena for David Rue after learning of the witness' location at a homeless shelter in Monroe, Louisiana on August 10, 2017. The court denied the second motion for instanter subpoena for several reasons, including defense counsel's failure to exercise due diligence, noting the trial was continued no less than fifteen times before the current setting; the Orleans Parish Sheriff's Office advised that they would not be able to serve the witness there; and counsel had not moved to appoint a special process server for that subpoena. Defense counsel's request to proffer was also denied.

More importantly, the defendant made no showing that Mr. Rue's testimony would be either favorable or result in a different outcome, let alone both. In light of the harmless error analysis which guides our examination, the defendant's assertion that he was deprived of his right to compulsory process is without merit.

Evidentiary Errors

Defendant next asserts that he was denied his due process right to a fair trial when the trial court improperly admitted the CAC video into evidence without the State laying a proper foundation pursuant to La. R.S. 15:440.1 et seq. At issue here are La. R.S. 15:440.4 and 15:440.5. La. R.S. 15:440.4 states, in relevant part:

A. A videotape of a protected person may be offered in evidence either for or against a defendant. To render such a videotape competent evidence, it must be satisfactorily proved:
(1) That such electronic recording was voluntarily made by protected person.
(2) That no relative of the protected person was present in the room where the recording was made.
(3) That such recording was not made of answers to interrogatories calculated to lead the protected person to make any particular statement.
(4) That the recording is accurate, has not been altered, and reflects what the protected person said.
(5) That the taking of the protected person's statement was supervised by a physician, a social worker, a law enforcement officer, a licensed psychologist, a medical psychologist, a licensed professional counselor, or an authorized representative of the Department of Children and Family Services.

La. R. S. 15:440.5 also states, in relevant part:

A. The videotape of an oral statement of the child made before the proceeding begins may be admissible into evidence if:
(1) No attorney for either party was present when the statement was made;
(2) The recording is both visual and oral and is recorded on film or videotape or by other electronic means;
(3) The recording is accurate, has not been altered, and reflects what the witness or victim said;
(4) The statement was not made in response to questioning calculated to lead the child to make a particular statement;
(5) Every voice on the recording is identified;
(6) The person conducting or supervising the interview of the child in the recording is present at the proceeding and available to testify or be cross-examined by either party;
(7) The defendant or the attorney for the defendant is afforded an opportunity to view the recording before it is offered into evidence; and
(8) The child is available to testify.

The defendant states that the State failed to lay a proper foundation for the CAC video pursuant to La. R.S. 15:440.4 and 15:440.5(6) because neither Dan Dooley nor his supervisor was available to testify; however, the defendant misinterprets the provision. Under La. R.S. 15:440.5(6), it is only necessary that someone supervising the interview be available to testify. We find that Det. Ross's attendance was sufficient to fulfill this requirement.

Accordingly, the defendant's argument that he was denied his due process right to a fair trial because of the erroneous introduction of the CAC video is without merit.

Defendant further asserts that he was denied his due process right to a fair trial when the trial court denied his request to recall his girlfriend, Brittany Coulter, to authenticate her medical record for admission into evidence after she obtained it from Touro Infirmary during the court's lunch recess following her testimony.

Louisiana courts have long permitted the recall of witnesses even after they have been dismissed after direct and cross-examination. State v. Griffin , 288 So.2d 636, 638 (La. 1974). However, the trial court is vested with great discretion and may deny permission for a party to recall a witness if it will cause undue delay or if the party had a reasonable opportunity on the witness's first appearance to question him about the matter for which his recall is sought. Id. Further, the right to present a defense does not require the trial court to permit the introduction of evidence that is irrelevant or has so little probative value that it is substantially outweighed by other legitimate considerations in the administration of justice. State v. Fernandez , 09-1727, p.14 (La. App. 4 Cir. 10/6/10), 50 So.3d 219, 229. A trial court is vested with great discretion in determining whether a party has laid a proper foundation, and its ruling as to admissibility will not be disturbed absent an abuse of discretion. State v. Cyrus , 11-1175, p.20 (La. App. 4 Cir. 7/5/12), 97 So.3d 554, 565.

The defendant contends that Ms. Coulter's medical record supported his misidentification as the perpetrator because the perpetrator gave chlamydia to A.S. and Ms. Coulter did not have it despite her intimate relationship with him. The trial court denied the request to recall, noting that the defendant had ample opportunity to obtain Ms. Coulter's medical record prior to trial and could have presented the record while Ms. Coulter was on the stand. Accordingly, we find no error in the trial court's evidentiary rulings.

Excessive Sentencing

In his third assignment of error, the defendant contends the trial court erred in imposing excessive sentences. At the outset, it is important to note that the defendant neither contemporaneously objected nor filed a motion to reconsider following the trial court's imposition of sentences. La. C. Cr. P. art. 881(E) (providing that the failure to make or file a motion to reconsider sentence shall preclude the defendant from raising an objection to the sentence on appeal or review). Strictly interpreting La. C.Cr.P. art. 881.1(E), this court has held that the failure to object to a sentence at imposition or to file a motion to reconsider sentence will preclude a defendant from raising on appeal even a claim of constitutional excessiveness. State v. Pete , 17-0442, p.3 (La. App. 4 Cir. 12/13/17), 234 So.3d 1006, 1008. However, given the patent error of the excessive sentence for the aggravated burglary conviction, we elect to review this claim out of an abundance of caution.

Article I, Section 20 of the Louisiana Constitution prohibits not only "cruel" and unusual punishment, but excessive punishment as well. La. Const. art. I, § 20. A sentence "is constitutionally excessive if it makes no measurable contribution to acceptable goals of punishment and is nothing more than the purposeless imposition of pain and suffering and is grossly out of proportion to the severity of the crime." State v. Dorthey , 623 So.2d 1276, 1280 (La. 1993). Because the trial court has broad discretion in imposing a sentence within statutory limits, a reviewing court can only set it aside if it is clearly excessive. State v. Cook , 95-2784, p. 3 (La. 5/31/96), 674 So.2d 957, 959.

In reviewing an excessive sentence claim, the appellate court must determine whether the trial court judge has complied with La. C. Cr. P. art. 894.1, and whether the circumstances of the case warrant the sentence imposed, keeping in mind that maximum sentences should be reserved for the most egregious violators of the offense. State v. Jasper , 14-0125, p. 20 (La. App. 4 Cir. 9/17/14), 149 So.3d 1239, 1252 ; State v. Bonicard , 98-665 (La. App. 4 Cir. 8/4/99), 752 So.2d 184, 185. However, this Court has held that if the record supports a conviction and sentence, a trial court's failure to strictly comply with La. C.Cr.P. art. 894.1 does not merit remand and resentence. State v. Quezada , 13-1318, p. 7 (La. App. 4 Cir. 5/21/14), 141 So.3d 906, 913.

The court must start with the presumption that a mandatory minimum sentence is constitutional, which the defendant must rebut by proving that he is exceptional. State v. Green , 17-0520, p. 17 (La. App. 4 Cir. 11/15/17), 231 So.3d 756, 758. This Court has articulated that exceptional "means that because of unusual circumstances he is a victim of the legislature's failure to assign sentences that are meaningfully tailored to the culpability of the offender, the gravity of the offense, and the circumstances of the case." Id. If the mandatory minimum sentence is constitutionally excessive, then a downward departure is required under Dorthey . This Court has consistently refused to consider a defendant arguing his age and first-time offender status as "exceptional" when the crime committed is violent in nature. See Green , 17-0520, p.5, 231 So.3d at 758 ; State v. Ladd , 15-0772 (La. App. 4 Cir. 4/13/16), 192 So.3d 235.

In the present case, the defendant asserts that his sentences are constitutionally excessive because the judge failed to consider any mitigating factors, such as his age and his first-time offender status. Accordingly, the defendant has failed to rebut the presumption that the mandatory minimum sentences are constitutionally excessive because his age and first-time offender status do not make him exceptional, given that the crimes he committed are all violent in nature. Additionally, the maximum sentences for each charge were appropriate because the defendant was such an egregious violator of each offense. Notwithstanding the patent error of the excessive sentence for aggravated burglary, the defendant's argument that the trial court erred in imposing excessive sentences for each of the offenses is without merit.

CONCLUSION

Considering the foregoing reasons, this Court affirms the defendant's convictions. Further, this Court affirms the defendant's sentences on all counts except for count three (aggravated burglary), which exceeds the statutory limits. Therefore, the sentence for aggravated burglary is vacated and the matter is remanded for resentencing on that one count. All other sentences are affirmed.

CONVICTIONS AFFIRMED; REMANDED WITH INSTRUCTIONS


source: Caselaw Access Project

author: CARLTON, J., FOR THE COURT:

license: Public Domain

text:
    Alison Nicole WILLIAMS a/k/a Alison Raziano a/k/a Raz a/k/a Alison Williams a/k/a Alison Nicole Williams Raziano Walton, Appellant v. STATE of Mississippi, Appellee
    NO. 2016-CA-01047-COA
    Court of Appeals of Mississippi.
    November 21, 2017 Rehearing Denied May 29, 2018
    ATTORNEY FOR APPELLANT: WANDA TURNER-LEE ABIOTO
    ATTORNEY FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL BY: ALICIA MARIE AINSWORTH
    BEFORE IRVING, P.J., CARLTON AND GREENLEE, JJ.
   CARLTON, J., FOR THE COURT:

¶ 1. Alison Williams appeals the DeSoto County Circuit Court's denial of her motion for postconviction relief (PCR). In her PCR motion, Williams alleged that she was mentally ill and incompetent during the plea hearing and sentencing, and, as a result, her guilty plea was not voluntarily, knowingly, and intelligently made. The trial court denied Williams's PCR motion as a successive writ under Mississippi Code Annotated section 99-39-23(6) (Rev. 2015).

¶ 2. Williams now appeals, claiming that the discovery of new evidence and an intervening decision by the Mississippi Supreme Court exempt her claim from the successive-writ procedural bar. Finding no error, we affirm the trial court's judgment.

FACTS

¶ 3. Williams pleaded guilty to armed robbery on June 29, 2012. On September 7, 2012, the trial court sentenced Williams to serve ten years in the custody of the Mississippi Department of Corrections (MDOC) and ten years of postrelease supervision, with five years' reporting and five years' nonreporting.

¶ 4. Williams filed her first PCR motion on November 22, 2013, which the trial court denied. Williams then appealed to this Court. In affirming the trial court's denial of Williams's first PCR motion, this Court addressed Williams's claim that her plea was involuntary as follows:

In her PCR motion, Williams argued that there was no factual basis to support her plea and that her trial counsel's assistance was ineffective. She did not include the argument that her plea was involuntary. Because Williams did not include the claim that her plea was involuntary in her PCR motion, she is procedurally barred from presenting it now to this Court.

Williams v. State , 163 So.3d 993, 995 (¶ 3) (Miss. Ct. App. 2015).

¶ 5. This Court also addressed Williams's argument in her first PCR motion that "the trial court's failure to consider Williams's mental state at the time of her plea was plain error affecting her substantive rights and resulted in a manifest miscarriage of justice." Id. at (¶ 4). The Williams court found that Williams failed to "allege facts to support her allegation that she was operating under a defect of reason, or how the prescription drugs adversely affected her." Id. (internal quotation marks omitted). This Court explained: "The mere fact that [Williams] was taking prescription medication ... does not automatically mean she was operating under a defect of reason. Furthermore, there is nothing to indicate that she was suffering from a mental illness at the time of her plea." Id. (internal quotation marks omitted).

¶ 6. Williams filed a second PCR motion on September 8, 2015, asserting that her plea was involuntary and also claiming that she had obtained evidence not reasonably discoverable at the time she entered her guilty plea. Williams attached several documents to her PCR motion, including the following: her medical records; a copy of the indictment; the sentencing order; her guilty-plea petition; a curriculum vitae of a pharmacist; drug information from the website www.drugs.com; an affidavit of her adoptive mother, Beverly Williams; an article titled "The Genetics of Alcohol and Other Drug Dependence"; jail records; and an evaluation in letter form from a psychiatrist. The trial court denied Williams's PCR motion on June 21, 2016, after finding that her PCR motion constituted a successive writ under section 99-39-23(6). The trial court also held that "Williams has not produced evidence as to an exception to the [successive-writ] bar."

¶ 7. The trial court also explained in its order that Williams claimed that her medical records constituted newly discovered evidence under section 99-39-23(6). The trial court stated that after reviewing Williams's PCR motion and the "new evidence," it found the following:

There is nothing in the record which suggests that this information could not have been discovered at the time of Williams'[s] plea or at the latest when Williams filed her first [PCR motion]. Williams'[s] mother's affidavit states that she did not know the extent of her daughter's drug problems at the time of her plea, but she does not even state that Williams'[s] plea should be set aside, only that her sentence should be mitigated. The [s]upreme [c]ourt in Smith v. State held that claims of mental competency were not subject to the procedural bars of the [Uniform Postconviction Collateral Relief Act (UPCCRA) ]. Smith v. State , 149 So.3d 1027, 1031 (¶ 8) (Miss. 2014) [ (overruled on other grounds by Pitchford v. State , 2015-CA-01818-SCT, [240 So.3d 1061] 2017 WL 4699552 (Miss. Oct. 19, 2017)) ].
....
The Court finds that what Williams has now submitted is not newly discovered evidence. The issue is whether Williams has put forth any credible evidence to make her competency in doubt at the time of her plea.

¶ 8. The trial court also addressed the merits of Williams's PCR motion, stating that Williams denied being under the influence of drugs or alcohol at the plea hearing. In its order, the trial court acknowledged that "the plea petition did mention certain drugs that Williams was taking." Additionally, the trial court acknowledged that at the plea hearing, "Williams told the judge she understood the nature of the charges against her and the consequences of pleading guilty. The [c]ourt asked Williams in several ways regarding whether her plea was voluntary." The trial court further provided that "Williams [submitted] numerous medical records and other documentation with her PCR motion, none related to her competency around or at the time of her guilty plea. The transcript clearly shows that Williams'[s] plea was made freely, intelligently, and voluntarily."

¶ 9. Williams filed her appeal of the trial court's denial of her PCR motion on July 20, 2016.

STANDARD OF REVIEW

¶ 10. "When reviewing a trial court's decision to deny a petition for post[ ]conviction relief, this Court will not disturb the trial court's factual findings unless they are found to be clearly erroneous. Questions of law are reviewed de novo." Stokes v. State , 145 So.3d 1238, 1239 (¶ 6) (Miss. Ct. App. 2014) (internal citation omitted).

DISCUSSION

I. Newly Discovered Evidence

¶ 11. Williams argues that the trial court erred in denying her PCR motion as a successive writ. Williams claims that her PCR motion was exempted from the successive-writ bar in section 99-39-23(6).

¶ 12. Section 99-39-23(6) bars successive PCR motions by establishing the following:

The order as provided in subsection (5) of this section or any order dismissing the petitioner's motion or otherwise denying relief under this article is a final judgment and shall be conclusive until reversed. It shall be a bar to a second or successive motion under this article.

The petitioner "bears the burden of proving by a preponderance of the evidence that [her] claims are not barred as successive writs."

Salter v. State , 184 So.3d 944, 948 (¶ 14) (Miss. Ct. App. 2015) ; Miss. Code Ann. § 99-39-23(7).

¶ 13. We recognize that "[e]rrors affecting fundamental constitutional rights are excepted from the procedural bars of the UPCCRA." Williams v. State , 110 So.3d 840, 843 (¶ 15) (Miss. Ct. App. 2013). Section 99-39-23(6) also provides the following exceptions to the successive-writ bar:

Likewise excepted from this prohibition are those cases in which the petitioner can demonstrate either that there has been an intervening decision of the Supreme Court of either the State of Mississippi or the United States which would have actually adversely affected the outcome of [her] conviction or sentence or that [she] has evidence, not reasonably discoverable at the time of trial, which is of such nature that it would be practically conclusive that, if it had been introduced at trial, it would have caused a different result in the conviction or sentence.

¶ 14. Williams first filed a PCR motion in November 2013. After the trial court denied her PCR motion, Williams appealed, asserting that "(1) her plea was involuntary, (2) no factual basis existed to support her plea, and (3) her counsel was ineffective." Williams , 163 So.3d at 995 (¶ 3). As previously stated, in affirming the trial court's denial of Williams's November 2013 PCR motion, this Court ultimately held that "[i]n her PCR motion, Williams ... did not include the argument that her plea was involuntary. Because Williams did not include the claim that her plea was involuntary in her PCR motion, she is procedurally barred from presenting it now to this Court." Id.

¶ 15. This Court also addressed the merits of Williams's claim, stating:

Williams further argues that the trial court's failure to consider Williams's mental state at the time of her plea was plain error affecting her substantive rights and resulted in a manifest miscarriage of justice. We do not agree. Williams does not allege facts to support her allegation that she was "operating under a defect of reason," or how the prescription drugs adversely affected her. The mere fact that she was taking prescription medication (Paxil, Mobic, and Trispernec) does not automatically mean she was "operating under a defect of reason." Furthermore, there is nothing to indicate that she was suffering from a mental illness at the time of her plea. The plea petition on which Williams relies states that she was previously diagnosed with anxiety. There is nothing to indicate that Williams was still suffering from anxiety or whether or not she was being treated for the same at the time of her plea. This issue is without merit.

Id. at (¶ 4).

¶ 16. In the PCR motion currently before this Court on appeal, filed in September 2015, Williams again claimed that her plea was not voluntarily, knowingly, and intelligently made due to her status as mentally ill and incompetent during the plea and sentencing dialogue. However, Williams argues that the evidence she presented in the form of medical records, an affidavit of a pharmacist, and a statement from her psychologist constitutes credible evidence substantiating the existence of a mental illness and the use of psychotropic drugs during Williams's plea. Williams asserts that this evidence was not reasonably discoverable during the time of the plea "because the error of the trial court did not occur until the time of the plea." Williams further claims that as a mentally ill person, she "could not be expected to be competent to bring to the awareness of [the trial] court her incompetency."

Williams contends that if this evidence had been presented to the trial court at the time of her plea and sentencing, a different result would have ensued. As a result, Williams argues that her claim constitutes an exception to the successive-writ bar provided in section 99-39-23(6).

¶ 17. Regarding newly discovered evidence, this Court has recognized that

[a] defendant is entitled to a new trial on the ground of newly discovered evidence where: (1) such evidence will probably change the outcome if a new trial is granted; (2) the evidence has been discovered since trial and could not have been discovered before trial by the exercise of due diligence; (3) the evidence is material to the issue; and (4) the evidence is not merely cumulative or impeaching.

Pittman v. State , 121 So.3d 253, 257 (¶ 7) (Miss. Ct. App. 2013) (citing Meeks v. State , 781 So.2d 109, 112-13 (¶ 8) (Miss. 2001) ). "The defendant must satisfy all four elements before a reversal can be granted." Id. (citing Johnson v. State , 39 So.3d 963, 966 (¶ 11) (Miss. Ct. App. 2010) ).

¶ 18. In its order denying Williams's PCR motion, the trial court addressed the documents that Williams claimed constituted newly discovered evidence:

Williams attached an affidavit (under seal) of a pharmacist to her petition. The pharmacist asserted an opinion based upon reasonable medical certainty that Williams was experiencing "serotonin syndrome" on October 1, 2011, the date she committed the crime, not the date of her plea. [The pharmacist] also stated that there were "very clear indications" that [Williams] was experiencing "serotonin syndrome" on the date of her arrest, but he does not state what date that she was arrested. Williams also attached some of her medical records while she was at the jail. The basis of her argument seems to be that the medicine she was taking would affect her ability to plead guilty. She did deny the use of drugs at the time of her plea, but the plea petition did mention certain drugs that she was taking at that time. She really does not claim she was not competent, but that her plea was involuntary.
Williams has supplemented a psychological evaluation in letter from a clinical psychologist, Dr. Thomas Bennett. The report is not sworn nor in affidavit form. Dr. Bennett really has no opinions as to whether Williams was competent at the time of the plea. In his report, Dr. Bennett uses a lot of euphemisms, like "can be problematic," "seems likely," and "increases the probability[."] Dr. Bennett also states "there is no way to determine at this point exactly what substances were present in Ms. Williams'[s] system at the time of her sentencing." He does not give any opinion as to a degree of medical certainty.

The trial court ultimately found "that what Williams has now submitted is not newly discovered evidence. The issue is whether Williams has put forth any credible evidence to make her competency in doubt at the time of her plea."

¶ 19. We agree that Williams's history of mental issues and her list of medications were reasonably discoverable to her at the time of her plea. We also find that the psychological-evaluation report and pharmacist's affidavit Williams attached to support her claim provide information that was also reasonably discoverable with due diligence at the time of her plea.

II. Intervening Decision

¶ 20. Williams additionally asserts that Coleman v. State , 127 So.3d 161 (Miss. 2013) constitutes an intervening decision concerning a fundamental constitutional right to not be convicted of a crime without the mental ability to stand trial. We first recognize that the supreme court overruled Coleman in its recent opinion of Pitchford v. State , No. 2015-CA-01818-SCT, 240 So.3d 1061, 1066-67, 2017 WL 4699552, at *4 (¶ 29) (Miss. Oct. 19, 2017). However, Williams argues that Coleman clearly mandates that the trial court must follow Uniform Rule of Circuit and County Court Practice 9.06, which provided that "[i]f before or during trial the court, of its own motion or upon motion of an attorney, has reasonable ground to believe that the defendant is incompetent to stand trial, the court shall order the defendant to submit to a mental examination[.]"

¶ 21. We recognize that "[a]n intervening decision is one that 'creates new intervening rules, rights, or claims that did not exist at the time of the prisoner's conviction.' " Dever v. State , 210 So.3d 977, 980 (¶ 6) (Miss. Ct. App. 2017) (quoting Patterson v. State , 594 So.2d 606, 608 (Miss. 1992) ). The Mississippi Supreme Court handed down its decision in Coleman on October 24, 2013. According to the trial court's order in this case, Williams filed her first PCR motion on November 22, 2013, just under a month after the Coleman opinion handed down. Accordingly, the decision in Coleman was available to Williams prior to her filing her first PCR motion, and thus cannot now be considered an "intervening decision" for her second motion. See Lockett v. State , 656 So.2d 76, 82 (Miss. 1995) (finding the defendant's failure to raise the issue of an allegedly intervening decision in his first PCR motion, even though the decision was available, was not considered an "intervening decision" on his second application). Additionally, Williams failed to raise the issue of an intervening decision until her reply brief to the State's response to her second PCR motion, filed September 2015.

¶ 22. After our review, we find that Coleman fails to create any rules, rights, or claims that did not already exist at the time of Williams's guilty plea and sentence, as the issue of competency was never raised before her plea. Therefore, even if Coleman applied, Williams has failed to demonstrate that Coleman would "have actually adversely affected the outcome of [Williams's] conviction or sentence." Miss. Code Ann. § 99-39-23(6) ; see also Lockett , 656 So.2d at 82. The plea-hearing transcript reflects that the trial court specifically asked Williams if she was under the influence of drugs or alcohol, whether she was taking any medications that would affect her ability to understand the nature of the proceedings, and whether she had a history of mental illness or emotional problems. Williams replied no. Williams also answered affirmatively when the trial court asked her if she knew where she was and whether she knew she was pleading guilty. The record shows the trial court did not detect any mental defect or incompetency in Williams during her plea hearing. In its order denying Williams's PCR motion, the trial court held that "[t]he transcript clearly shows that Williams'[s] plea was made freely, intelligently, and voluntarily. Therefore, the motion should be denied without a hearing or discovery."

¶ 23. After our review, we find the record contains substantial evidence to support the trial court's order denying Williams's PCR motion. We therefore affirm the trial court's judgment.

¶ 24. AFFIRMED .

LEE, C.J., IRVING AND GRIFFIS, P.JJ., BARNES, FAIR, WILSON, GREENLEE, WESTBROOKS AND TINDELL, JJ., CONCUR.

      In its order denying Williams's PCR motion, the trial court gave the following explanation as to the timeliness of the motion:
      Williams'[s] petition appears to be filed one day late, but September 7, 2015, the date the petition was due, was a legal holiday. Under [Mississippi Rule of Civil Procedure] 6(a), if the end of a prescribed time period falls on a Sunday, the period continues until the following day, provided the following day is not a legal holiday, in which event the period will continue until the day thereafter. Bell v. [Miss. Dep't of Human Servs. ], 126 So.3d 999, 1006 [ (¶ 24) ] (Miss. [Ct.] App. 2013).

      In its order denying Williams's second PCR motion, the trial court determined that Williams's second PCR motion constituted a successive writ and stated as follows:
      The Court of Appeals held in Williams'[s] appeal of her first PCR [motion] that her claim that her plea was involuntary because she was under the influence of prescription drugs was procedurally barred because she had not made the claim before the trial court; and the trial court's failure to consider [Williams's] mental state was not plain error, based on the proof she presented at that time. Williams had not asserted these specific claims in her first PCR [motion], but she did [in] her appeal.

      In its order denying relief, the trial court cited section 99-39-23(6) and acknowledged the following as excepted from the successive-writ bar:
      [C]ases in which the petitioner can demonstrate either that there has been an intervening decision of the Supreme Court of either the State of Mississippi or the United States which would have actually adversely affected the outcome of his conviction or sentence or that he has evidence, not reasonably discoverable at the time of trial, which is of such nature that it would be practically conclusive that if it had been introduced at trial, it would have caused a different result in the conviction or sentence.

      The Uniform Rules of Circuit and County Court Practice no longer govern criminal practice in Mississippi and have been replaced by the Mississippi Rules of Criminal Procedure, effective July 1, 2017. Williams's motion preceded this change.


author: BRYAN, Justice.

text:
    NOLAND HOSPITAL DOTHAN II, LLC v. Karren HUGHES, as Executrix of the Estate of Thomas Doster
    Karren Hughes, as Executrix of the Estate of Thomas Doster v. Noland Hospital Dothan II, LLC
    1151268 1151315
    Supreme Court of Alabama.
    October 27, 2017
    Sybil V. Newton, Michael K. Wright, and Joseph L. Reese, Jr., of Starnes, Davis, Florie LLP, Birmingham, for appellant/cross-appellee Noland Hospital Dothan II, LLC.
    Richard Riley, Rip Andrews, and Ben Ford of Marsh, Rickard & Bryan, P.C., Birmingham, for appellee/cross-appellant Karren Hughes, as executrix of the Estate of Thomas Doster.
   BRYAN, Justice.

1151268-AFFIRMED. NO OPINION.

See Rule 53(a)(1) and (a)(2)(F), Ala. R. App. P.

1151315-APPEAL DISMISSED AS MOOT.

Stuart, C.J., and Parker, Shaw, Main, and Wise, JJ., concur.

Bolin and Murdock, JJ., dissent.

Sellers, J., recuses himself.

Stuart, C.J., and Parker, Shaw, Main, and Wise, JJ., concur.

Murdock, J., concurs in the judgment of dismissal only.

Bolin, J., dissents.

Sellers, J., recuses himself.

MURDOCK, Justice (dissenting in case no. 1151268 and concurring in the judgment of dismissal only in case no. 1151315).

In case no. 1151268, an appeal, this Court affirms without opinion a judgment for money damages awarded on a wrongful-death claim against Noland Hospital Dothan II, LLC ("Noland"), in favor of Karren Hughes, as executrix of the estate of Thomas Doster, who allegedly was injured and subsequently died from a fall that occurred while Doster was a patient at one of Noland's hospitals. Principal among the issues in the case are whether Doster suffered a fall in his hospital room sufficient to cause internal head injuries, and whether he did in fact suffer internal head injuries that contributed to his death, or whether his death instead resulted from the progression of certain preexisting conditions.

The judgment of the trial court in favor of Hughes was based upon a verdict entered by a jury that heard testimony as to a hearsay statement made by Doster himself to the effect that he fell, which the trial court admitted under the excited-utterance exception to the hearsay rule. See Rule 803(2), Ala. R. Evid. Given Doster's general condition and state of mind, as well as the timing of the out-of-court statement at issue, that statement did not in my opinion have the necessary attributes of trustworthiness or otherwise qualify for admission under the excited-utterance exception to the hearsay rule.

In addition, the jury heard testimony from Doster's brother, who relayed an out-of-court statement by an unidentified "intern or something," which apparently was admitted into evidence under Rule 801(d)(2)(C) or (D), Ala. R. Evid., as an admission by a party opponent. In my view, the record contains insufficient information to establish this declarant to be an agent or servant of the hospital, or to establish that his statement concerned a matter within the scope of any such agency, so as to qualify for exclusion from the hearsay rule under the admission-of-party-opponent provisions of Rule 801(d)(2)(C) and (D).

Based on the foregoing, and because I believe the aforesaid testimony was material (given what I consider to be the speculative and inferential nature of much of the other evidence), I respectfully dissent from the affirmance of the trial court's judgment based on a verdict rendered by a jury that heard that evidence.

In a cross-appeal, case no. 1151315, Hughes argues that the trial court's judgment against Noland should be upheld on the alternative ground that there was evidence proffered, but improperly excluded from the jury's consideration, that the trial judge could have considered to justify his denial of Noland's postjudgment motion for a judgment as a matter of law. Rule 50(d), Ala. R. Civ. P., provides:

"If the motion for judgment as a matter of law is denied, the party who prevailed on the motion may, as appellee, assert grounds entitling the party to a new trial in the event the appellate court concludes that the trial court erred in denying the motion for judgment. If the appellate court reverses the judgment, nothing in this rule precludes it from determining that the appellee is entitled to a new trial, or from directing the trial court to determine whether a new trial shall be granted."

Although Rule 50(d) allows this Court, upon reversing the denial of a motion for a judgment as a matter of law, to order a new trial or to direct a trial court to determine whether to order a new trial, Hughes expressly states that she is not requesting a new trial. Instead, she argues that the judgment in her favor should be upheld as a matter of law on the basis of the evidence that, although withheld from the jury, was known to the trial judge.

First, if Hughes's argument were a proper alternative basis for upholding the judgment in her favor, then a cross-appeal to assert that alternative ground is neither necessary nor appropriate. Such a ground would be properly asserted in the initial appeal simply as an alternative ground for affirming the trial court's judgment. See, e.g., Municipal Workers Comp. Fund, Inc. v. Morgan Keegan & Co., 190 So.3d 895, 908 (Ala. 2015).

More fundamentally, the Court cannot sustain a judgment entered on an otherwise improper jury verdict based on the trial court's collateral consideration of evidence not presented to the jury. As Rule 50 indicates, perhaps a new trial would be in order if the initial appeal were successful and it were to be determined in a cross-appeal that there was evidence that had been improperly excluded from the jury's consideration that should be considered in the new trial. But the court in a jury trial cannot replace a jury's faulty verdict with its own verdict based on evidence to which it, but not the jury, was privy.

Based on the foregoing, I cannot agree to the dismissal of the cross-appeal on the ground that it is moot, as stated in this Court's order dismissing that cross-appeal. Instead, for the reasons stated above, I find the cross-appeal, as framed, to be without merit in its own right. Accordingly, as to the cross-appeal, I concur in the judgment of dismissal only.

      In addition, I am concerned about the fact that one or more jurors had discussions about the case with an alternate juror before the conclusion of the trial. I find it unnecessary to further address this as a potential ground for reversal in light of the concerns addressed in the text.


author: SHAW, Justice. SELLERS , Justice (dissenting).

text:
    EX PARTE ROCKINGHAM BOAT CLUB, INC.
    (In re: Keith Edward Kelley, Jr. v. Rockingham Boat Club, Inc.)
    1151345
    Supreme Court of Alabama.
    October 27, 2017
    David F. Walker of Crosby Law Firm PC, Mobile, for petitioner.
    Robert D. Keahey, Jr., of Williams & Keahey LLC, Grove Hill, for respondent.
   SHAW, Justice.

PETITION DENIED. NO OPINION.

Stuart, C.J., and Bolin, Parker, Murdock, Main, Wise, and Bryan, JJ., concur.

Sellers, J., dissents.

SELLERS , Justice (dissenting).

I respectfully dissent. A single isolated sale, in this case of a boat, even when coupled with an agreement to undertake to make minor repairs, is an insufficient basis on which to establish in personam jurisdiction. Jurisdiction depends on the nature and extent of a defendant's in-state activities. In this case, the defendant, Rockingham Boat Club, Inc., did not target Alabama or otherwise specifically direct its commercial activities toward Alabama so as to benefit from the protections afforded by Alabama's laws. For jurisdiction to exist, a defendant's activities must create a substantial nexus with Alabama; one isolated sale is not sufficient. I would issue the writ and direct the trial court to dismiss the action.


author: THOMPSON, Presiding Judge.

text:
    Cristy C. STALLWORTH v. Francis D. STALLWORTH III
    2150942
    Court of Civil Appeals of Alabama.
    August 4, 2017 Rehearing Denied October 13, 2017
    Kelli McDaniel Day, Montgomery, for appellant.
    J. Milton Coxwell, Jr., of Coxwell & Coxwell, Monroeville, for appellee.
   THOMPSON, Presiding Judge.

Cristy C. Stallworth ("the wife") appeals from an order of the Monroe Circuit Court ("the trial court") divorcing her from Francis D. Stallworth III ("the husband"). For the reasons discussed below, we dismiss the appeal because it was taken from a nonfinal order.

The record indicates that the husband filed a complaint for a divorce on October 27, 2010. On September 21, 2011, the trial court entered a "temporary order" incorporating an agreement the parties had reached during mediation regarding pendente lite support. Pursuant to that agreement, the husband was to pay the wife $2,500 each month in addition to "all other expenses he is currently paying." Those expenses were not enumerated, although the wife was directed

"to keep receipts on all expenses she pays, including credit card statements, etc., and she shall maintain a reasonable accounting of expenses, mileage, etc., which shall be provided monthly to her attorney and then to the husband's attorney. The wife shall not run the upstairs AC unit unless the children are spending time there. The wife shall, to the extent possible, conserve utilities in a reasonable manner in the marital residence."

On November 16, 2015, the wife filed a motion for a finding of contempt against the husband, alleging that the husband had refused to pay what she called the "temporary alimony" that month. That same day, the trial court entered an order directing the parties to comply with the terms of the mediated pendente lite agreement and set a hearing on the motion for November 23, 2015. The record does not indicate that an order was entered after the hearing. On January 19, 2016, the wife filed another contempt motion, again alleging that the husband was not paying the "temporary alimony" as ordered in the September 21, 2011, order.

On March 24, 2016, the trial court entered an order divorcing the parties and, among other things, dividing the marital property and awarding the wife periodic alimony. In that order, the trial court did not expressly find the husband in contempt, but it specified "that any installments of temporary support which have accrued under former orders herein, but which are unpaid, are specifically preserved herein, and shall be paid by the husband." The trial court did not determine the amount the husband was in arrears for his failure to pay the "temporary support."

The trial court purported to certify the order as final pursuant to Rule 54, Ala. R. Civ. P., stating that it found "that there is no just reason for delay in the entry of a final judgment as to all matters which are finally adjudicated above, and the Court therefore directs entry of a final judgment with respect thereto." The wife appealed from the March 24, 2016, order.

The parties in this case do not raise the issue of the finality of the order or this court's jurisdiction to consider this appeal. However, it is well settled that

" ' "[j]urisdictional matters are of such magnitude that we take notice of them at any time and do so even ex mero motu." ' Raybon v. Hall, 17 So.3d 673, 675 (Ala. Civ. App. 2009) (quoting Nunn v. Baker, 518 So.2d 711, 712 (Ala. 1987) ). ' "The question whether an order appealed from is final is jurisdictional, and the reviewing court, on a determination that the order is not final, has a duty to dismiss the case on its own motion." ' Hinson v. Hinson, 745 So.2d 280, 281 (Ala. Civ. App. 1999) (quoting Powell v. Powell, 718 So.2d 80, 82 (Ala. Civ. App. 1998) )."

Swindle v. Swindle, 157 So.3d 983, 988-89 (Ala. Civ. App. 2014).

A final judgment is one that resolves all issues and determines the rights of all parties involved. In Swindle, we wrote:

" 'A final judgment is a terminative decision by a court of competent jurisdiction which demonstrates there has been complete adjudication of all matters in controversy between the litigants within the cognizance of that court. That is, it must be conclusive and certain in itself. Gandy v. Hagler, 245 Ala. 167, 16 So.2d 305 [ (1944) ] ; Bell v. Otts, 101 Ala. 186, 13 So. 43 [ (1893) ]. All matters should be decided; damages should be assessed with specificity leaving the parties with nothing to determine on their own. A judgment for damages to be final must, therefore, be for a sum certain determinable without resort to extraneous facts. Gandy v. Hagler, supra ; Drane v. King, 21 Ala. 556 [ (1852) ].'
" Jewell v. Jackson & Whitsitt Cotton Co., 331 So.2d 623, 625 (Ala. 1976) (first emphasis added). ' "The question of finality of the [judgment] may be phrased as whether there is 'something more for the court to do.' " ' Wilson v. Wilson, 736 So.2d 633, 634 (Ala. Civ. App. 1999) (quoting Powell v. Powell, 718 So.2d 80 at 82 [ (Ala. Civ. App. 1998) ], quoting in turn Wesley v. Brandon, 419 So.2d 257, 258 (Ala. Civ. App. 1982) ).
"Because the March 18, 2013, order does not determine the amount of the credit to be afforded the father against the child-support arrearage established in the June 2012 judgment entered in case no. 81, that order did not ' "conclusively determine[ ] the issues before the court and ascertain[ ] and declare[ ] the rights of the parties involved.'' ' Trousdale v. Tubbs, 929 So.2d 1020, 1022 (Ala. Civ. App. 2005) (quoting Bean v. Craig, 557 So.2d 1249, 1253 (Ala. 1990) ). See also D.M.P.C.P. v. T.J.C., 91 So.3d 75 (Ala. Civ. App. 2012) (holding that a judgment that did not determine the amount of a child-support arrearage was not final)."

Swindle, 157 So.3d at 989.

In this case, the trial court ordered the husband to pay any unpaid installments of temporary support that had accrued, but it did not determine the number of such installments or the amount of temporary support that the husband owed to the wife. Therefore, the order in this case does not conclusively determine the issue of unpaid temporary support. Accordingly, it is not a final judgment capable of supporting an appeal.

The trial court's effort to certify the order as final pursuant to Rule 54(b), Ala. R. Civ. P., does not change the outcome.

"Reviewing the trial court's finding in Schlarb v. Lee, 955 So.2d 418, 419-20 (Ala. 2006), that there was no just reason for delay, [our supreme c]ourt explained that certifications under Rule 54(b) are disfavored:
" 'This Court looks with some disfavor upon certifications under Rule 54(b).
" ' "It bears repeating, here, that " '[c]ertifications under Rule 54(b) should be entered only in exceptional cases and should not be entered routinely.' " State v. Lawhorn, 830 So.2d 720, 725 (Ala. 2002) (quoting Baker v. Bennett, 644 So.2d 901, 903 (Ala. 1994), citing in turn Branch v. SouthTrust Bank of Dothan, N.A., 514 So.2d 1373 (Ala. 1987) ). ' '' 'Appellate review in a piecemeal fashion is not favored.' " ' Goldome Credit Corp. [v. Player, 869 So.2d 1146, 1148 (Ala. Civ. App. 2003) ] (quoting Harper Sales Co. v. Brown, Stagner, Richardson, Inc., 742 So.2d 190, 192 (Ala. Civ. App. 1999), quoting in turn Brown v. Whitaker Contracting Corp., 681 So.2d 226, 229 (Ala. Civ. App. 1996) ) (emphasis [omitted] )."
" ' Dzwonkowski v. Sonitrol of Mobile, Inc., 892 So.2d 354, 363 (Ala. 2004).'
"In considering whether a trial court has exceeded its discretion in determining that there is no just reason for delay in entering a judgment, this Court has considered whether 'the issues in the claim being certified and a claim that will remain pending in the trial court " 'are so closely intertwined that separate adjudication would pose an unreasonable risk of inconsistent results.' " ' Schlarb, 955 So.2d at 419-20 (quoting Clarke-Mobile Counties Gas Dist. v. Prior Energy Corp., 834 So.2d 88, 95 (Ala. 2002), quoting in turn Branch v. SouthTrust Bank of Dothan, N.A., 514 So.2d 1373, 1374 (Ala. 1987), and concluding that conversion and fraud claims were too intertwined with a pending breach-of-contract claim for Rule 54(b) certification when the propositions on which the appellant relied to support the claims were identical). See also Centennial Assocs. [v. Guthrie], 20 So.3d [1277] at 1281 [ (Ala. 2009) ] (concluding that claims against an attorney certified as final under Rule 54(b) were too closely intertwined with pending claims against other defendants when the pending claims required 'resolution of the same issue' as issue pending on appeal); and Howard v. Allstate Ins. Co., 9 So.3d 1213, 1215 (Ala. 2008) (concluding that the judgments on the claims against certain of the defendants had been improperly certified as final under Rule 54(b) because the pending claims against the remaining defendants depended upon the resolution of common issues)."

Lighting Fair, Inc. v. Rosenberg, 63 So.3d 1256, 1263-64 (Ala. 2010).

In this case, we do not have to determine whether there are any outstanding claims that are so closely intertwined to the claims already determined that there is a risk of inconsistent results. The specific amount of the arrearage the husband owes in temporary support is part of the same claim alleging that he is, in fact, in arrears. In other words, the trial court's order regarding the claim seeking past-due temporary support is not final. Rule 54(b) does not grant the trial court the authority to certify as final an order on a claim for which it has determined liability but for which it has not determined the amount of that liability.

For the reasons set forth above, the order in this case is not final and is not capable of supporting an appeal. Swindle, supra. Because a nonfinal judgment will not support an appeal, this matter is dismissed. See Osburn v. Osburn, 238 So.3d 60 (Ala. Civ. App. 2017).

The wife's request for an attorney fee on appeal is denied.

APPEAL DISMISSED.

Pittman, Thomas, Moore, and Donaldson, JJ., concur.

      The trial of this matter was held over two days in November 2014. The record does not indicate a reason for the 16-month delay between the trial and the entry of the order. There is also no indication in the record that the parties attempted to petition this court for a writ of mandamus to have the trial court enter a judgment in the divorce action.


author: PER CURIAM.

text:
    Elizabeth Martin HOLLAND v. Ronald Gordon HOLLAND
    2150881
    Court of Civil Appeals of Alabama.
    August 18, 2017 Rehearing Denied October 6, 2017
    Richard C. Shuleva, Birmingham, for appellant.
    S. Phillip Bahakel of S. Phillip Bahakel & Associates, Pelham, for appellee.
   PER CURIAM.

Elizabeth Martin Holland ("the wife") and Ronald Gordon Holland ("the husband") were married in 1976. They separated in 2008, and, on December 22, 2014, the husband filed a complaint in the Shelby Circuit Court seeking a divorce from the wife and a division of the marital assets and debts. The wife filed a counterclaim seeking a divorce from the husband, a division of the marital assets and debts, an award of alimony, and an award of attorney fees.

After hearing ore tenus testimony, the circuit court entered a judgment divorcing the parties. It made the wife responsible for any debt in her name and awarded her the marital residence, all personal property contained in the marital residence, an automobile, the funds in her banking accounts, and certain insurance proceeds. The circuit court made the husband responsible for any debt in his name and awarded him certain real property ("the Eva property"); four firearms; his interest in his business, Southern Environmental Air, Inc. ("SEA"); several items of equipment and heavy machinery used by SEA; certain investment accounts; and the funds in his banking accounts. It ordered the husband to pay the wife $115,000 in alimony in gross and to pay $3,000 toward her attorney fees.

The parties each filed postjudgment motions, and, after a hearing, the circuit court entered an order opening the judgment to take additional testimony regarding a certain alleged marital asset. Rule 59(a), Ala. R. Civ. P., provides, in pertinent part:

"A new trial may be granted to all or any of the parties ... on all or part of the issues in an action tried without a jury, for any of the reasons for which rehearings have heretofore been granted in suits in equity in the courts of Alabama. On a motion for a new trial in an action tried without a jury, the court may open the judgment if one has been entered, take additional testimony, amend findings of fact and conclusions of law or make new findings and conclusions, and direct the entry of a new judgment."

The husband filed motion to which he attached an excerpt from his deposition, which, according to him, eliminated any issue regarding the alleged marital asset. The circuit court entered an order ("the May 18, 2016, order"), which reduced the husband's alimony-in-gross obligation to $66,000 and set a hearing regarding "the remaining issues." That hearing did not occur.

The circuit court later rendered orders on the parties' postjudgment motions that were entered on June 28, 2016. The circuit court denied the wife's motion in its entirety and denied the husband's motion except insofar as it had amended the amount of alimony in gross in the May 18, 2016, order. Therefore, on June 28, 2016, the divorce judgment became a final judgment.

The wife filed a timely notice of appeal seeking this court's review of whether the circuit court had abused its discretion by not awarding her an interest in SEA, by not awarding her periodic alimony, and by not reserving the right to award periodic alimony in the future.

" 'In 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). Furthermore, a division of marital property in a divorce case does not have to be equal, only equitable, and a determination of what is equitable rests within the sound discretion of the trial court. Golden v. Golden, 681 So.2d 605 (Ala. Civ. App. 1996). In addition, the trial court can consider the conduct of the parties with regard to the breakdown of the marriage, even where the parties are divorced on the basis of incompatibility. Ex parte Drummond, 785 So.2d 358 (Ala. 2000). Moreover, in Kluever v. Kluever, 656 So.2d 887 (Ala. Civ. App. 1995), this court stated, "[a]lthough this court is not permitted to substitute its judgment for that of the trial court, this court is permitted to review and revise the trial court's judgment upon an abuse of discretion." Id. at 889.'
" Langley v. Langley, 895 So.2d 971, 973 (Ala. Civ. App. 2003)."

Underwood v. Underwood, 100 So.3d 1115, 1116-17 (Ala. Civ. App. 2012).

At the time of the trial, the parties had been married for 39 years and were each 64 years old. The wife is a retired teacher. The husband is an electrical engineer. The husband testified that he had been employed by the Alabama Power Company in the early years of the marriage and that, by 1989, he and the wife were no longer intimate. The wife testified that, around that time, the husband lived in a camper, and she participated in counseling for victims of domestic abuse. However, according to the husband, the parties had continued to live together at times, but had "separated" their finances, although, he stated, he had paid "pretty much all the household bills" including the mortgage on the marital residence, which they had purchased in 1991. The husband testified that, in 1991, he began operating SEA out of the marital residence as an air-pollution-control business. The wife agreed that the husband had paid her living expenses, but she testified that they had separate banking accounts because she wanted to be financially independent of the husband; he testified that they had separate banking accounts because she overspent.

In 2008 the wife fell and seriously injured herself; thus, she retired from her employment as a teacher and qualified for Social Security disability benefits. The husband said that the marital residence had stairs and that he thought that the wife needed to live in a single-story residence. A deed contained in the record demonstrates that, in 2008, the parties acquired the Eva property, which is a remote 80-acre parcel upon which the husband built the SEA office building. The parties disputed whether the wife had knowledge of the purchase of the Eva property before 2011. However, the wife admitted that she had known that the husband had looked at several parcels and that he had wanted to build an underground residence or a residence with a basement large enough to store, she said, "Armageddon amounts of food" and firearms for protection from marauding bands of people. The wife said: "I would call him a doomsday prepper." The husband testified that, after the purchase of the Eva property, he sometimes lived in an apartment attached to the SEA office building. He said that, after first agreeing to move to the Eva property, the wife had later refused to do so. The wife disputed his testimony and testified that she had would never have agreed to move to a remote location with the husband because she was afraid that he might abuse her and because she is afraid of tornados and enjoys being involved in her community.

The husband said that he was "growing old" and that he had neck, back, knee, shoulder, and prostate issues; severe tendinitis ; sleep apnea ; and scoliosis. The wife testified that she took medication to treat fibromyalgia and dysautonomia and that she suffered from vertigo and from stomach, bladder, and thyroid issues.

The husband requested that the circuit court award the wife the marital residence, its contents, and an automobile. He said that the marital residence was worth at least $260,000 and that its contents were worth approximately $7,000. An exhibit entered into evidence indicates that the automobile the circuit court awarded to the wife was owned by SEA and is worth $5,561.

The husband requested that the circuit court award him the Eva property. He testified that the parties had purchased it for $199,000. He said that SEA contributed $145,000 of the purchase price and that SEA provided at least $100,000 for certain improvements. He said that the Eva property was worth at least $300,000; an appraisal entered into evidence indicates that the Eva property is worth $350,000. The husband also requested an award of his interest in SEA and all its equipment, which he valued at approximately $50,000 (including the $5,561 automobile that was awarded to the wife). The husband offered a copy of a balance sheet into evidence indicating that, among other things, as of December 31, 2014, SEA had several liabilities including accounts payable in the amount of $154,605.22 and a "long term liability" of $186,873 denoted as "note payable to owner." On cross-examination, the husband testified that, at the time of his deposition, he had been unable to answer whether the accounts-payable liability had been paid, but he testified that it had been paid at the time of the trial. He said that SEA had recognized revenue from its accounts receivable in 2015 and that it had used those proceeds to satisfy the $154,605.22 accounts-payable liability. The husband was also questioned about the note payable to owner, and he said that there had been no such loan. The wife offered an exhibit indicating that SEA had had a gross annual income of $916,027 in 2008, $816,855 in 2009, $718,509 in 2010, $642,507 in 2011, $389,204 in 2012, $382,307 in 2013, and $665,560 in 2014. The husband did not dispute those amounts; however, he offered exhibits, created by his accountant, detailing SEA's 2015 and 2016 profits and losses. According to his exhibits, in 2015 SEA had gross income of $650,212, and, after deducting its expenses, its 2015 net income was $338; in the first two months of 2016, SEA had a gross income of $49,443, and, after deducting its expenses, its then current net income was $12,648.

The husband valued his firearms at $1,860, and, regarding the investment accounts, the husband testified that the parties had certain stocks and annuities valued at approximately $4,500. The wife testified that she had $9,500 in her banking accounts; the husband testified that he had $2,000 in his banking accounts.

The husband insisted that he had never earned a salary from SEA of more than $30,000 per year. He offered a copy of his current W-2 tax form into evidence demonstrating that he would be required to report a gross annual income of $21,666 on his next income-tax return. He said that his net monthly income was $1,412 and that his monthly living expenses were $1,370. The husband also testified that he earned less income than the wife. The circuit court admitted an income-comparison document into evidence that supported the husband's testimony and that was based upon the adjusted gross incomes reported on the parties' separately filed 2012, 2013, and 2014 income-tax returns.

The wife offered an exhibit indicating that she received an annual Social Security disability benefit of $18,646.80 and annual retirement income of $19,281.96, which demonstrated a monthly income of $3,160.73. She estimated that her monthly living expenses were $3,850 and requested "either sufficient assets to help [her] bridge the amount of money [she] earn[ed] and what it costs [her] to live each month or ... [an] award [of] alimony, either one." The wife said: "I would prefer a dollar amount rather than alimony, but I would take alimony."

On appeal the wife argues that the circuit court's property award is inequitable because, she says, the circuit court should have awarded her an interest in SEA. The value of nearly all the marital assets-including the value of SEA-was disputed. The ore tenus presumption applies to " ' "disputed issues of fact," whether the dispute is based entirely upon oral testimony or upon a combination of oral testimony and documentary evidence.' " Friedman v. Friedman, 971 So.2d 23, 28 (Ala. 2007) (quoting Reed v. Board of Trs. for Alabama State Univ., 778 So.2d 791, 795 (Ala. 2000), quoting in turn Born v. Clark, 662 So.2d 669, 672 (Ala. 1995) ). The circuit court was in the best position to resolve the disputed issue of the value of SEA. The husband offered testimony and documentary evidence that, if believed, demonstrated that any ownership interest in SEA would confer a relatively small annual income despite SEA's larger annual gross income. Therefore, we are unable to find support for the wife's contention that a failure to award her an interest in SEA renders the circuit court's property division plainly or palpably wrong.

Moreover, the circuit court awarded the wife at least $282,061 in marital assets: a $260,000 residence, $16,500 in personal property and cash, and a $5,561 automobile. The circuit court awarded the husband, at most, approximately $403,000 in marital assets: $350,000 in real property and approximately $53,000 in personal property and cash. Thus, after ordering the husband to pay the wife $66,000 in alimony in gross, the property division favored the husband by, at most, approximately $55,000. If, however, the circuit court believed the husband's testimony regarding the value of the Eva property, then the property division is nearly equal.

"This court cannot hold that the trial court's award of alimony and the division of marital property was plainly or palpably wrong, because there was evidence in the record from which the trial court could have reasonably determined that the alimony and division of marital property was equitable under the circumstances of this case. Carter [v. Carter, 934 So.2d 406 (Ala. Civ. App. 2005) ]; Wells [v. Wells, 428 So.2d 88 (Ala. Civ. App. 1983) ]. It is well settled that a trial court is afforded a wide degree of discretion in dividing marital assets in a divorce proceeding; the only limitation is that the division of property must be equitable under the circumstances of the particular case. Further, it is the trial court that determines what is equitable. TenEyck [v. TenEyck, 885 So.2d 146 (Ala. Civ. App. 2003) ](citing Cantrell v. Cantrell, 773 So.2d 487, 489 (Ala. Civ. App. 2000), and Ross v. Ross, 447 So.2d 812, 813 (Ala. Civ. App. 1984) )."

Clements v. Clements, 990 So.2d 383, 392-93 (Ala. Civ. App. 2007). The wife has failed to demonstrate reversible error regarding the equity of the division of the marital assets.

Next, the wife argues that the circuit court should have awarded her periodic alimony.

"The purpose of periodic alimony is to support the former dependent spouse and to enable that spouse, to the extent possible, to maintain the status that the parties had enjoyed during the marriage, until the spouse is self-supporting or maintaining a status similar to the one enjoyed during the marriage."

O'Neal v. O'Neal, 678 So.2d 161, 165 (Ala. Civ. App. 1996). In this case, the wife failed to demonstrate that the husband had the ability to pay alimony. A trial court should ordinarily use a spouse's net income as the starting point to determine a spouse's ability to pay alimony. See Ex parte Jackson, 567 So.2d 867, 868 (Ala. 1990). The testimony and documentary evidence demonstrated that the husband earned less income than the wife and that his monthly expenses were nearly equal to his net monthly income. Furthermore, the wife requested either an award of alimony in gross or an award of periodic alimony, and she said that she preferred an award of alimony in gross. We cannot assign error to the circuit court for awarding the wife the relief that she requested.

Finally, the wife argues that the circuit court should have reserved the right to order the husband to pay periodic alimony in the future. The wife argues:

"At trial, the Wife requested that the Court either award her a lump sum monetary award or alimony to 'bridge the gap' between her income and her expected expenses. Given the length of the parties' marriage, the lifestyle enjoyed by the parties during the marriage and the Wife's inability to earn more than her state retirement income and her Social Security Disability, coupled with Husband's value in his business, it was error for the trial court to fail to award alimony and/or to reserve the right to award periodic alimony at a later date if the circumstances should justify it."

In Crenshaw v. Crenshaw, 816 So.2d 1046, 1048 (Ala. Civ. App. 2001), we explained that "the trial court's decision to reserve alimony is, for all intents and purposes, a denial of alimony at the time of the original divorce" and that "the trial court should reserve the issue of alimony if the facts indicate that future circumstances may entitle a party to an award of alimony." The wife has directed us neither to legal authority in support of her claim that the circuit court should have reserved that issue, nor to facts that would indicate that future circumstances might entitle her to an award of alimony. Rule 28(a)(10), Ala. R. App. P., requires that arguments in briefs contain discussions of facts and relevant legal authorities that support the party's position. If they do not, the arguments are waived. White Sands Grp., L.L.C. v. PRS II, L.L.C., 998 So.2d 1042, 1058 (Ala. 2008).

Moreover, although the wife asked for an award alimony at the time of the divorce, she failed to ask the circuit court to reserve the power to award alimony in the future either before the judgment was entered or, as the husband points out, in a postjudgment motion. " '[I]t is a well-settled rule that an appellate court's review is limited to only those issues that were raised before the trial court.' " Neal v. Neal, 856 So.2d 766, 778 (Ala. 2002), quoting Beavers v. County of Walker, 645 So.2d 1365, 1372 (Ala. 1994) ); see also Green v. Taylor, 437 So.2d 1259, 1260 (Ala. 1983) ("[T]he general rules regarding the necessity for post-trial motions is that, ordinarily, issues not raised before the trial court may not be raised for the first time on appeal."). Whether to award alimony now or to reserve the issue for a later determination based on "future circumstances" are different legal questions. See Ex parte Knox, 201 So.3d 1213 (Ala. 2015) (explaining that, although additional arguments and reasoning may be presented on appeal regarding issues properly presented to the trial court, a different or new legal question may not be raised for the first time on appeal).

The wife has not demonstrated that the circuit court abused its discretion by not awarding her an interest in SEA, by not awarding her periodic alimony, or by not reserving the right to award periodic alimony in the future. Therefore, the circuit court's judgment is affirmed. The husband's request for an award of attorney fees on appeal is denied.

AFFIRMED.

Thompson, P.J., and Pittman, Thomas, Moore, and Donaldson, JJ., concur.

      Undisputed testimony indicates that a mortgage on the marital residence had been paid off at the time of the trial.

      We added the estimated values of the investment accounts ($4,500), the husband's banking accounts ($2,000), the husband's firearms ($1,860), and the SEA equipment ($50,000). We subtracted the value of the automobile ($5,561) that the circuit court awarded to the wife.