author: KELLUM, Judge.

text:
    Jody L. NELSON v. STATE of Alabama.
    CR-06-1634.
    Court of Criminal Appeals of Alabama.
    May 1, 2009.

      Leonard F. Mikul, Bay Minette, for appellant.
    Troy King, atty. gen., and P. David Bjurberg, asst. atty. gen., for appellee.
   KELLUM, Judge.

The appellant, Jody L. Nelson, was convicted of one count of the felony offense of driving under the influence of alcohol, a violation of § 32-5A-191(a) and (h), Ala.Code 1975, one count of reckless driving, a violation of § 32-5A-190, Ala.Code 1975, and one count of driving while her license was revoked, a violation of § 32-6-19, Ala.Code 1975. The circuit court sentenced Nelson to 10 years’ imprisonment for the felony DUI conviction and ordered Nelson to pay a $5,000 fíne, $100 to the crime victims compensation fund, $600 in attorney fees, and court costs. The circuit court further sentenced Nelson to 90 days’ imprisonment for the reckless-driving conviction and to 6 months’ imprisonment for driving while her license was revoked; the court imposed a $500 fine for each conviction. The court ordered that the sentences were to run concurrently.

A short recitation of the facts is all that is necessary to dispose of this appeal. On March 18, 2005, Officer Michael Merritt was notified by dispatch to be on the lookout for a reckless driver driving north on U.S. Highway 98 in Daphne. Officer Merritt subsequently identified a vehicle making constant lane changes without turn signals and initiated a traffic stop. The driver of the vehicle was identified as Nelson. Officer Merritt testified that he smelled alcohol coming from Nelson’s person. After Nelson was unable to perform several field-sobriety tests, he was arrested for driving under the influence of alcohol.

The sole issue raised by Nelson on appeal is whether the circuit court was without jurisdiction to sentence him for the felony offense of DUI where the three prior DUI convictions used to elevate his fourth conviction to a felony DUI fell outside the five-year period provided for in § 32-5A-191(o), Ala.Code 1975. Nelson, whose DUI arrest resulted from a traffic stop that occurred on March 19, 2005, was convicted on March 9, 2007, and sentenced on May 24, 2007. During the time between Nelson’s arrest and his conviction, the Alabama Legislature amended § 32-5A-191, Ala.Code 1975; this amendment resulted in the former subsection (o) becoming subsection (p), and the addition of a new subsection (o). This new subsection, which became effective April 28, 2006, provides:

“A prior conviction within a five-year period for driving under the influence of alcohol or drugs from this state, a municipality within this state, or another state or territory or a municipality of another state or territory shall be considered by a court for imposing a sentence pursuant to this section.”

§ 32-5A-191(o), Ala.Code 1975 (emphasis added). It is Nelson’s contention that this newly enacted subsection is applicable in his case, thus mandating reversal of what he says is the circuit court’s “illegal sentence.”

It is well settled that the statute in effect at the time a crime is committed governs the prosecution of that offense. See Minnifield v. State, 941 So.2d 1000, 1001 (Ala.Crim.App.2005) (“It is well settled that the law in effect at the time of the commission of the offense controls the prosecution.”); see also Hardy v. State, 570 So.2d 871 (Ala.Crim.App.1990)(unless otherwise stated in the statute, the law in effect at the time the offense was committed controls the offense). Likewise, “[a] defendant’s sentence is determined by the law in effect at the time of the commission of the offense.” Davis v. State, 571 So.2d 1287, 1289 (Ala.Crim.App.1990).

Before the 2006 amendment became effective, § 32-5A-191 contained no five-year-limitation period concerning convictions that could be used for the purposes of DUI sentencing enhancement. See, e.g., Finch v. State, 903 So.2d 166, 167 (Ala.Crim.App.2004) (DUI convictions more than five years old properly used to enhance defendant’s sentence). As previously established, Nelson’s offense took place on March 19, 2005. Because the law controlling Nelson’s prosecution contained no limiting five-year window, his DUI convictions that were more than five years old could be used for purposes of sentencing enhancement.

However, our review of the record indicates that one of the DUI convictions used to elevate Nelson’s sentence to a felony DUI was in a municipal court. The record establishes that the State submitted certified copies of three Uniform Traffic Tickets and Complaints (“UTTCs”) to the circuit court at the sentencing hearing — 1993 and 1995 DUI convictions in the Baldwin County District Court and a 1999 DUI conviction in the Foley Municipal Court. The inclusion of Nelson’s 1999 DUI conviction in the municipal court runs afoul of our Supreme Court’s decision in Ex parte Holbert, 4 So.3d 410 (Ala.2008). In Hol-bert, a case decided after Nelson had been convicted of felony DUI, our Supreme Court held that prior in-state DUI convictions in municipal court do not count toward the total number of DUI convictions necessary to constitute a felony DUI offense under § 32-5A-191(h).

Although Nelson’s conviction for felony DUI cannot stand under Holbert based on the fact that a municipal DUI conviction was used to enhance his sentence, we note that this Court’s decision in Altherr v. State, 911 So.2d 1105 (Ala.Crim.App.2004), allows for the remand of this case for the State to prove three DUI convictions, not including municipal DUI convictions, at a second sentencing hearing.

In Altherr, the defendant was convicted of felony DUI based on four prior DUI convictions, two of which were in Georgia and two of which were in Alabama. Relying on Ex parte Bertram, 884 So.2d 889 (Ala.2003), we held that the trial court improperly considered the two out-of-state DUI convictions when elevating the defendant’s sentence to a felony under § 32-5A-191(h), reversed the defendant’s conviction, and remanded the case to the trial court for that court to enter a judgment against the defendant for the lesser punishment under § 32-5A-191(g), Ala.Code 1975. Altherr, 911 So.2d at 1109. On application for rehearing, the State argued that the case should have been remanded to the trial court for a new sentencing hearing so that it could prove additional Alabama DUI convictions because § 32-5A-191(h) is a sentence enhancement statute, and, as such, is “no different from that of an enhancement of a sentence after felony convictions under the Habitual Felony Offender Act (‘HFOA’).” 911 So.2d at 1109. This Court unanimously agreed with the State’s argument:

“[W]e see no reason to distinguish sentence enhancement under the HFOA from sentence enhancement under the DUI law. Both are used strictly for sentence enhancement and have no effect on the underlying substantive offense: both carry notice requirements that may be waived; and neither requires inclusion in the indictment.
“Therefore, because § 32-5A-191(h) is a sentence enhancement similar in purpose and character to sentence enhancements under the HFOA, we see no reason to treat them differently from the sentence enhancements applied under the HFOA.
“Thus, for the reasons stated above, [the defendant’s] conviction for felony DUI is reversed and this cause is remanded to the circuit court with instructions to conduct a second sentencing hearing, where the state can ‘attempt to prove all previous [Alabama DUI] convictions [of which] the State is aware.’ Connolly v. State, 602 So.2d at 455. However, as with the HFOA, ‘[t]o enhance a defendant’s sentence ... the State must give proper notice of its intent to do so.’ Connolly v. State, 602 So.2d [452, 455 (Ala.1992) ].”

Altherr, 911 So.2d at 1114.

The instant case is analogous to Altherr. In this case, as in Altherr, the State submitted improper evidence of prior DUI convictions at a sentencing hearing seeking to enhance a DUI conviction under § 32-5A-191(h). The circuit court, based on the improper evidence, enhanced the sentence, and Nelson was convicted of felony DUI. The State, in the instant case, submitted the municipal DUI conviction strictly for the purposes of sentence enhancement and not in connection with proving the underlying offense.

We note that this Court’s holding in Altherr is not in contravention of our Supreme Court’s holding in Holbert. The Supreme Court’s decision in Holbert did not address whether the State could prove other additional prior DUI convictions at a subsequent sentencing hearing. Instead, the Supreme Court limited its analysis to whether the circuit court could enhance a DUI conviction using a municipal DUI conviction.

Based on the foregoing, we reverse Nelson’s felony DUI conviction and remand the cause for the circuit court to conduct a second sentencing hearing at which the State can produce certified eopies of Nelson’s previous DUI convictions, other than municipal DUI convictions, if such exist. However, as noted in Altherr, the State must give proper notice of its intent to enhance Nelson’s sentence.

The circuit court shall take all necessary action to ensure that the circuit clerk makes due return to remand at the earliest possible time and no later than 56 days from the date of this opinion.

REVERSED AND REMANDED WITH DIRECTIONS.

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

      . This case was originally assigned to another judge on the Court of Criminal Appeals; it was reassigned to Judge Kellum on January 20, 2009.

      . A sentencing report included in the record on appeal and prepared in advance of the sentencing hearing indicates that Nelson has additional DUI convictions other than those submitted by the State at the sentencing hearing.


source: Caselaw Access Project

license: Public Domain

text:
    Charles Anthony PEARSON v. STATE of Alabama.
    CR-06-1022.
    Court of Criminal Appeals of Alabama.
    May 29, 2009.
    Charles Pearson, pro se.

      Troy King, atty. gen., and Daniel W. Madison, asst. atty. gen., for appellee.
   KELLUM, Judge.

The appellant, Charles Anthony Pearson, appeals from the circuit court’s summary denial of his petition for postconviction relief filed pursuant to Rule 32, Ala. R.Crim. P. In May 2003, Pearson pleaded guilty to two counts of receiving stolen property in the first degree, two counts of burglary in the third degree and one count each of theft of property in the first degree and theft of property in the second degree. He was sentenced 15 years’ imprisonment; that sentence was split and he was ordered to serve 3 years’ imprisonment, followed by probation. Sometime in March 2005, Pearson was placed on probation. In June 2006, while on probation, Pearson was convicted of receiving stolen property in the second degree, a violation of § 13A-8-18(a)(1), Ala.Code 1975, and assault in the second degree, a violation of § 13A-6-21(a)(4), Ala.Code 1975; at his July 2006 sentencing hearing, he was sentenced to two consecutive terms of life imprisonment.

On January 9, 2007, Pearson filed this, his first Rule 32 petition, in which he alleged that he was denied procedural due process during the probation-revocation proceedings. See Rule 27, Ala. R.Crim. P.; Morrissey v. Brewer, 408 U.S. 471, 92 S.Ct. 2593, 33 L.Ed.2d 484 (1972); Gagnon v. Scarpelli, 411 U.S. 778, 93 S.Ct. 1756, 36 L.Ed.2d 656 (1973); and Armstrong v. State, 294 Ala. 100, 312 So.2d 620 (1975). Specifically, Pearson alleged that the circuit court revoked his probation while sentencing him on new charges of second-degree receiving stolen property and second-degree assault without holding a probation-revocation hearing, thus circumventing his procedural-due-process rights. On February 28, 2007, the State filed a response to Pearson’s Rule 32 petition in which it alleged that Pearson had failed to state any grounds for relief in his Rule 32 petition; that, regardless of his failure to allege proper grounds for relief, Pearson had received notice of the State’s motion to revoke probation and notice of the probation-revocation hearing; and that Pearson’s Rule 32 petition was due to be denied under Rule 32.3, Ala. R.Crim. P., because he had not sufficiently pleaded his claims. The circuit court entered an order summarily denying Pearson’s petition. This appeal followed.

On appeal, Pearson contends, as he did in his Rule 32 petition, that his due-process rights were violated when the circuit court revoked his probation without conducting a probation-revocation hearing.

In Hollins v. State, 737 So.2d 1056, 1057 (Ala.Crim.App.1998), this court held:

“Section 15-22-54, Ala.Code 1975, requires a hearing as a prerequisite to the revocation of probation. This statutory requirement is mandatory and jurisdictional. Story v. State, 572 So.2d 510 (Ala.Cr.App.1990). Additionally, the appellant was denied his constitutional right to due process by the revocation of his probation without a hearing. The minimal due process to be accorded a probationer before his probation can be revoked includes written notice of the claimed violations of probation, disclosure to the probationer of the evidence against him, an opportunity to be heard in person and to present witnesses and documentary evidence, the right to confront and to cross-examine adverse witnesses, a neutral and detached hearing body such as a traditional parole board, and a written statement by the factfin-der as to the evidence relied on and the reasons for revoking probation. Rule 27.5 and 27.6, Ala. R.Crim. P. See Armstrong v. State, 294 Ala. 100, 312 So.2d 620 (1975); Hernandez v. State, 673 So.2d 477 (Ala.Cr.App.1995).”

It is well settled that the failure to conduct a probation-revocation hearing without a valid waiver of the hearing pursuant to Rule 27.5(b), Ala. R.Crim. P., is a jurisdictional defect. See D.L.B. v. State, 941 So.2d 324 (Ala.Crim.App.2006); Henderson v. State, 933 So.2d 395 (Ala.Crim.App.2004); Young v. State, 889 So.2d 55 (Ala.Crim.App.2004); Zackery v. State, 832 So.2d 672 (Ala.Crim.App.2001); Phillips v. State, 755 So.2d 63 (Ala.Crim.App.1999); and Hollins v. State, supra. Therefore, Pearson has raised a jurisdictional claim that is not subject to the procedural bars set forth in Rule 32.

Moreover, contrary to the State’s contention, Pearson pleaded the claim in his petition with sufficient specificity to satisfy the requirements of Rule 32.3 and Rule 32.6(b). In his Rule 32 petition, Pearson refers to specific pages and lines in the transcript of his sentencing hearing in support of his claim that the circuit court failed to conduct a probation-revocation hearing. We have taken judicial notice of the transcript of the sentencing hearing Pearson refers to in his Rule 32 petition. See Nettles v. State, 731 So.2d 626 (Ala.Crim.App.1998) (this Court may take judicial notice of its own records). The transcript of the sentencing healing indicates that the circuit court inquired whether Pearson was on probation, then, following a short sentencing hearing on the new charges, revoked Pearson’s probation, reinstated his earlier sentence, and sentenced Pearson on the new charges. The record does not indicate that Pearson waived his right to a revocation hearing pursuant to Rule 27.5(b), Ala. R.Crim. P. Because Pearson’s claim is jurisdictional and is sufficiently pleaded, Pearson is entitled to an opportunity to prove his claim. See Ford v. State, 831 So.2d 641, 644 (Ala.Crim.App.2001) (“Once a petitioner has met his burden of pleading so as to avoid summary disposition pursuant to Rule 32.7(d), Ala. R.Crim. P., he is then entitled to an opportunity to present evidence in order to satisfy his burden of proof.”).

Accordingly, we remand this case for the circuit court to allow Pearson the opportunity to present evidence to support his claim that no probation-revocation hearing was held and that, therefore, the circuit court lacked jurisdiction to revoke his probation. The court shall either conduct an evidentiary hearing or accept evidence in the form of affidavits, written interrogatories, or depositions. See Rule 32.9(a), Ala. R.Crim. P. After receiving and considering the evidence presented, the circuit court shall issue specific written findings of fact regarding Pearson’s claim. If the court determines that Pearson’s probation was revoked without a revocation hearing or a valid waiver thereof, it shall grant Pearson’s Rule 32 petition and order new revocation proceedings. If the court determines that Pearson was afforded a revocation hearing or that he validly waived his right to such a hearing, it shall so state in a written order. Due return shall be filed within 42 days of the date of this opinion and shall include the circuit court’s written findings of fact, a transcript of the evidentiary hearing, if one is conducted, and any other evidence received or relied on by the court in making its findings.

We note that our decision should not be interpreted as a decision regarding the merits of the revocation of Pearson’s probation.

REMANDED WITH DIRECTIONS.

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

      . Pearson did not appeal these convictions.

      . Pearson appealed the receiving-stolen-property conviction and the second-degree-assault conviction; this court affirmed Pearson’s convictions and sentences by unpublished memorandum. Pearson v. State (CR-05-2118), 2 So.3d 941 (Ala.Crim.App.2006) (table). A certificate of judgment was issued on January 3, 2007.

      . We note that Pearson also contends for the first time on appeal that the revocation order entered by the circuit court was not adequate. However, Pearson's challenge to the adequacy of the circuit court’s revocation order is not a jurisdictional defect. Durry v. State, 977 So.2d 539 (Ala.Crim.App.2007). Accordingly, Pearson’s failure to include this claim in his petition forecloses our review of the claim on appeal. See Arrington v. State, 716 So.2d 237, 239 (Ala.Crim.App.1997) ("An appellant cannot raise an issue from the denial of a Rule 32 petition which was not raised in the Rule 32 petition.”).


author: WISE, Presiding Judge.

text:
    Michael KILLEEN v. STATE of Alabama.
    CR-08-0880.
    Court of Criminal Appeals of Alabama.
    Aug. 7, 2009.

      Gloria Prescott Dyess, Elba, for appellant.
    Troy King, atty. gen., and Stephanie E. Reiland, asst. atty. gen., for appellee.
   WISE, Presiding Judge.

On August 15, 2006, the appellant, Michael Killeen, entered a guilty plea to first-degree robbery. The trial court sentenced him to serve a term of twenty years in prison, but split the sentence and ordered him to serve three years followed by four years on supervised probation. On August 29, 2008, the State initiated revocation proceedings. After conducting a hearing, the circuit court revoked Killeen’s probation. This appeal followed.

Killeen argues that the circuit court erroneously revoked his probation based solely on hearsay.

“ ‘The use of such hearsay evidence as the sole means of proving the violation of the probation condition denied appellant the right to confront and cross-examine the person who originated the factual information which formed the basis for the revocation. For this reason, appellant was denied minimal due process of law, and the evidence was insufficient to prove the alleged violation of probation.’
“[Mallette v. State,] 572 So.2d [1316,] 1317 [ (Ala.Crim.App.1990) ]. See also Ex parte Belcher, 556 So.2d 366 (Ala.1989) (State’s evidence held insufficient in probation revocation hearing where evidence consisted of probation officer’s testimony that, while on probation, the appellant was charged with a federal offense, i.e., conspiring to possess, with intent to distribute, approximately 1000 pounds of marijuana, and certified copies of the federal charge).
“ ‘[T]he law is clear that the formality and evidentiary standards of a criminal trial are not required in parole revocation hearings. Thompson v. State, 356 So.2d 757 (Ala.Crim.App.1978), Armstrong v. State, 294 Ala. 100, 312 So.2d 620 (1975). Hearsay evidence may be admitted in the discretion of the court, though the State acknowledges that hearsay evidence cannot be the sole support of revoking probation. Mitchell v. State, 462 So.2d 740 (Ala.Crim.App.1984).
“‘Although probation is a “privilege” and not a right, Wray v. State, 472 So.2d 1119 (Ala.1985), certain standards of due process of law must be met to justify revocation. Those standards are set out in Armstrong v. State, supra.
“ ‘... While we recognize that all the formal requirements of a criminal trial are not mandated, and that the burden of proof is different, Thompson v. State, 356 So.2d 757 (Ala.Cr.App.1978) (“[t]he standard of proof is not reasonable doubt or preponderance of the evidence, but reasonable satisfaction from the evidence”), we also recognize that “[h]earsay information may not be used to furnish the sole basis of the revocation.” Watkins v. State, 455 So.2d 160 (Ala.Cr.App.1984). See, also, Moore v. State, 432 So.2d 552 (Ala.Cr.App.1983). In the ease at bar, we find that the evidence in the record was insufficient. Although evidence sufficient to support a conviction is not required, a probation officer’s report and/or an arrest warrant, standing alone or together, would be insufficient.’
“Ex parte Belcher, supra, at 368-69 (emphasis in original).”

Hall v. State, 681 So.2d 247, 248 (Ala.Crim.App.1995).

“This court has consistently held that ‘[w]hile hearsay evidence is admissible in a revocation proceeding it may not serve as the sole basis of the revocation.’ See Beckham v. State, 872 So.2d 208, 211 (Ala.Crim.App.2003); see also Brazery v. State, 6 So.3d 559 (Ala.Crim.App.2008) (‘ “It is well settled that hearsay evidence may not form the sole basis for revoking an individual’s probation.’”); Goodgain v. State, 755 So.2d 591, 592 (Ala.Crim.App.1999) (same); Clayton v. State, 669 So.2d 220, 222 (Ala.Crim.App.1995) (same); see also Ratliff v. State, 970 So.2d 939, 941-42 (Fla.App. 4 Dist. 2008) (quoting Johnson v. State, 962 So.2d 394, 396-97 (Fla. 2d DCA 2007)) (‘While probation may be revoked based on a combination of hearsay and non-hearsay evidence, when the State seeks to revoke probation based on the commission of new offenses, it must present direct, nonhearsay evidence linking the defendant to the commission of the offense at issue.’ Here, the trial court abused its discretion by revoking the appellant’s probation because the State failed to present ‘non-hearsay evidence establishing the essential elements of the criminal offenses at issue .... ’).”

Sams v. State, [Ms. CR-08-0884, June 26, 2009] - So.3d -, - (Ala.Crim.App.2009). Finally,

“ ‘ “ ‘[t]he decision to revoke probation is a judicial function and should be based upon the appellant’s conduct and not upon an accusation only. The state must submit enough substantive evidence to reasonably satisfy the trier of the facts that a condition of probation was breached.’ Hill[ v. State, 350 So.2d 716 (Ala.Cr.App.1977) ].” ’
“Chasteen v. State, 652 So.2d 319, 320 (Ala.Crim.App.1994) (quoting Mitchell v. State, 462 So.2d 740, 742 (Ala.Crim.App.1984)).”

Nash v. State, 931 So.2d 785, 789 (Ala.Crim.App.2005).

In this case, the circuit court revoked Killeen’s probation on the ground that he had committed the new offense of first-degree robbery. During the revocation hearing, Detective Chris Mason of the Enterprise Police Department testified that he investigated a robbery at the Hobo Pantry convenience store on Rucker Boulevard; that, on August 10, 2008, a white male entered the store with a gun and demanded that the clerk give him all of the money; that the clerk opened the cash register and gave the man the entire cash drawer; and that the man left on foot. He also testified that Shane Godbey was the person who actually entered the store with the weapon; that Killeen did not enter the business; that they received information that Killeen was in the getaway vehicle with a female named Tobi Dekker; and that Dekker and Godbey both placed Kil-leen at the scene of the crime. Mason further testified that he was told that Kil-leen, Godbey, and Dekker were going to rob the store; that Killeen told Godbey what to say, gave him a gun to use, told him what to do inside the store, and told him to meet them when they got down the road; and that, after the robbery, Godbey got into the vehicle in which Killeen was riding. Finally, he testified that Killeen and Dekker had dated for years and that he believed they also had a child together.

Detective Chris Hurley of the Enterprise Police Department testified that he responded to an armed robbery that occurred at a Stop & Go convenience store on Rucker Boulevard; that a white male wearing a black t-shirt and blue jeans and with a bandana across his face entered the store with a small caliber handgun, robbed the clerk at gunpoint, and fled on foot behind the store; and that he received that information from the cashier, Mina Patel. He also testified that he received information that Shane Hutto, who was possibly identified as Shane Godbey, and Killeen were responsible for the robbery at Stop & Go and another robbery at Video Warehouse; that he interviewed Godbey and Dekker; that Dekker told him Kil-leen was present and was the “mastermind” behind the robbery; that Godbey corroborated that Killeen was the “mastermind” behind the robbery and participated in the robbery; and that Godbey told him that Killeen received most of the money from the robbery. (R. 17, 19.) Hurley further testified that they knew that two revolvers had been used during the robbery; that they contacted the Coffee County Sheriffs Department and learned that numerous revolvers had been stolen during several residential burglaries that had occurred in Coffee County around that time; and that the guns used in the robbery were confirmed as having been stolen during the residential burglaries. He also testified that Killeen and Dekker lived at 2305 Fairview Drive; that numerous items that had been stolen during the residential burglaries were found outside of the residence; that officers executed a search warrant at the residence on August 20, 2008; that Killeen was there with his child and Dekker’s other child; and that he believed that officers recovered jewelry and pocketknives from the house. He further testified that officers determined that Killeen lived at the residence based on numerous shirts, t-shirts, and pants they found; the fact that they found Killeen’s driver’s license and wallet in the master bedroom of the house; and the fact that they found a cable bill that was in Killeen’s name and was for the residence at Fair-view Avenue. Hurley testified that he interviewed Killeen; that Killeen denied any knowledge or involvement in the robbery and denied that he lived at the house; and that Killeen said that his clothing and driver’s license were in the house because he was watching his child when law enforcement officers arrived. Finally, he testified that he believed that Dekker told officers that her brother had some clothes in the residence that had been used during the robbery and that Godbey had changed her brother’s those clothes so he would not be recognized.

In this case, all of the testimony regarding Killeen’s involvement in the robberies was based on hearsay statements by Dekker and Godbey. The State presented non-hearsay evidence that indicated that Killeen lived at the house at Fairview Avenue. Although there was some testimony regarding stolen property that was found at that house, that testimony did not relate to items that were connected with the robbery. At the conclusion of the revocation hearing, the circuit court stated:

“Under advisement. But let me tell y’all what I perceive I’m left with here today insofar as the robbery. The only thing that you’ve presented that would link him to it is the — it doesn’t matter that she’s not a co-defendant. The only thing I have in regard to an alleged robbery is the uncorroborated — the hearsay testimony concerning the uncorroborated testimony of an accomplice, which would not be competent evidence to convict of that offense.”

(C.R. 28-29.) In its written revocation order, the circuit court stated that it was reasonably satisfied that Killeen had committed the new offense of first-degree robbery. It further stated,

“The Court’s findings are based upon the testimony of Enterprise Police Investigators Chris Mason and Chris Hurley, the documentary evidence presented (Shane Godbey’s statement), and other matters within the case file and of which the Court takes judicial notice.”

(C.R. 56.) Although the circuit court indicated that it considered “other matters within the case file” and of which it had taken judicial notice, the record does not include any non-hearsay information regarding the new offense of first-degree robbery. Therefore, the State did not present sufficient non-hearsay evidence to support the revocation of Killeen’s probation. Accordingly, we reverse the circuit court’s order revoking Killeen’s probation and remand this case to the circuit court for proceedings that are consistent with this opinion.

REVERSED AND REMANDED.

WELCH, WINDOM, KELLUM, and MAIN, JJ., concur.

      . Hurley identified Dekker as Tobi Dekker Jones. However, for the sake of consistency, we will refer to her as “Dekker.”

      . Although Killeen was also charged with violating his probation by committing the new offense of first-degree receiving stolen property, the circuit court did not revoke his probation on that ground.


text:
    STATE of Alabama v. Cheno Kentaruas WHITE.
    CR-08-0869.
    Court of Criminal Appeals of Alabama.
    Aug. 7, 2009.

      Troy King, atty. gen., and William Duncan Little, asst. atty. gen., for appellant.
    Emmett W. Hampton, Montgomery, for appellee.
   KELLUM, Judge.

Cheno Kentaruas White was arrested and charged with unlawful possession of marijuana in the second degree, a violation of § 13A-12-214, Ala.Code 1975. White filed a pretrial motion to suppress evidence seized as the result of an investigatory stop, namely a green leafy substance later determined to be marijuana and alleged statements or admissions made by White in connection with the illegal search of White’s vehicle. Following an evidentiary hearing, the trial court granted White’s motion to suppress. Pursuant to Rule 15.7, Ala. R.Crim. P., the State appeals the circuit court’s ruling.

The evidence presented at the suppression hearing established the following: On the evening of April 6, 2008, Officer J.M. Butterbrodt of the Montgomery Police Department was working at a driver’s license checkpoint when he noticed a vehicle approaching the checkpoint. At that time, the vehicle was the only one approaching the checkpoint. Officer Butterbrodt testified that the driver, White, turned his vehicle around before the vehicle reached the checkpoint. Officer Butterbrodt proceeded to pull up behind the vehicle. White then turned into the driveway of an elderly female and jumped out of his vehicle. Officer Butterbrodt testified that when White jumped out of his vehicle he threw a “brown cigar” on the ground, which Officer Butterbrodt believed to be marijuana. Officer Butterbrodt explained that he then advised White to get back in his vehicle, and White complied with his request. Officer Butterbrodt testified that he suspected White was engaged in a criminal activity because he turned around and went the other way when he saw the checkpoint.

On cross-examination, Officer Butter-brodt testified as follows:

“Q: [DEFENSE COUNSEL]: — was there not a stop sign, a yield sign there where you could go left or right?
“A: [OFFICER BUTTERBRODT]: That is correct. He was in the lane that turned towards the checkpoint and then looped around.
“THE COURT: Now, did he come through the checkpoint?
“[OFFICER BUTTERBRODT]: No, sir. He turned before the checkpoint.”

(R. 4-5.) Officer Butterbrodt testified that he typically stopped vehicles that turned around before getting to a checkpoint.

On appeal, the State contends that the circuit court erred by granting White’s motion to suppress. “This Court reviews de novo a circuit court’s decision on a motion to suppress evidence when the facts are not in dispute. See State v. Hill, 690 So.2d 1201, 1203 (Ala.1996); State v. Otwell, 733 So.2d 950, 952 (Ala.Crim.App. 1999).” State v. Skaggs, 903 So.2d 180, 181 (Ala.Crim.App.2004). In the instant case, the facts are uncontested; the only issue is the circuit court’s application of the law to those facts. In such a case, this Court affords no presumption in favor of the circuit court’s ruling.

“The United States Supreme Court in Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968), held that ‘a police officer may, in appropriate circumstances and in an appropriate manner, approach a person for purposes of investigating possible criminal behavior even though there is no probable cause to make an arrest.’ 392 U.S. at 22, 88 S.Ct. at 1880. The standard for allowing a Terry stop is whether there is a reasonable suspicion that ‘the person being stopped has engaged in some type of criminal activity.’ Webb v. State, 500 So.2d 1280, 1281 (Ala.Crim.App.), cert. denied, 500 So.2d 1282 (Ala.1986).”

Ex parte Carpenter, 592 So.2d 627, 629 (Ala.1991).

“ ‘ “The officer [making a Terry stop] ... must be able to articulate something more than an ‘inchoate and unparticular-ized suspicion or “hunch.” ’ [Terry, 392 U.S.] at 27. The Fourth Amendment requires ‘some minimal level of objective justification’ for making the stop. INS v. Delgado, 466 U.S. 210, 217 (1984). That level of suspicion is considerably less than proof of wrongdoing by a preponderance of the evidence. We have held that probable cause means ‘a fair probability that contraband or evidence of a crime will be found,’ [Illinois v. Gates, 462 U.S. 213, 238 (1983) ] and the level of suspicion required for a Terry stop is obviously less demanding than for probable cause.” ’ ”

State v. White, 854 So.2d 636, 640 (Ala. Crim.App.2003), quoting Alabama v. White, 496 U.S. 325, 328, 110 S.Ct. 2412, 110 L.Ed.2d 301 (1990), quoting in turn United States v. Sokolow, 490 U.S. 1, 7, 109 S.Ct. 1581, 104 L.Ed.2d 1 (1989).

“In reviewing reasonable suspicion determinations, courts must look at the ‘ “totality of the circumstances” ’ to see whether the detaining officer had a ‘ “particularized and objective basis” ’ for suspecting wrongdoing. United States v. Arvizu, 534 U.S. 266, 273, 122 S.Ct. 744, 151 L.Ed.2d 740 (2002), quoting United States v. Cortez, 449 U.S. 411, 417-418, 101 S.Ct. 690, 66 L.Ed.2d 621 (1981). ‘This process allows officers to draw on their own experience and specialized training to make inferences from and deductions about the cumulative information available to them that “might well elude an untrained person.” ’ Arvizu, 534 U.S. at 273, 122 S.Ct. 744 (quoting Cortez, 449 U.S. at 418, 101 S.Ct. 690). A determination of probable cause should not be based on a ‘divide- and-conquer analysis’ but should consider a series of acts, each of which is ‘perhaps innocent in itself,’ together in determining whether they warrant further investigation. Terry v. Ohio, 392 U.S. at 22, 88 S.Ct. 1868.”
State v. Odom, 872 So.2d 887, 890 (Ala. Crim.App.2003).

In United States v. Cortez, 449 U.S. 411, 101 S.Ct. 690, 66 L.Ed.2d 621 (1981), the United States Supreme Court explained:

“Courts have used a variety of terms to capture the elusive concept of what cause is sufficient to authorize police to stop a person. Terms like ‘articulable reasons’ and ‘founded suspicion’ are not self-defining; they fall short of providing clear guidance dispositive of the myriad factual situations that arise. But the essence of all that has been written is that the totality of the circumstances— the whole picture — must be taken into account. Based upon that whole picture the detaining officers must have a particularized and objective basis for suspecting the particular person stopped of criminal activity. See, e.g., Brown v. Texas, [443 U.S. 47, 51, 99 S.Ct. 2637, 61 L.Ed.2d 357 (1979) ]; United States v. Brignoni-Ponce, [422 U.S. 873, 884, 95 S.Ct. 2574, 45 L.Ed.2d 607 (1975) ].”

449 U.S. 411, 417-18, 101 S.Ct. 690 (emphasis added).

In this case, Officer Butterbrodt based his suspicion of criminal activity on the facts that White approached the checkpoint, turned around, and drove away. In Smith v. State, 515 So.2d 149 (Ala.Crim. App.1987), this Court held that avoidance of a roadblock can, by itself, give rise to reasonable suspicion. In Smith, the defendant drove around a curve, came within sight of a roadblock, stopped, and quickly turned into a driveway. The defendant drove only partially into the driveway, turned off his headlights, and left the engine of the vehicle running. The state trooper manning the roadblock suspected that the defendant was attempting to avoid the roadblock. The state trooper drove his car to the driveway, parked it behind the defendant’s car, and questioned the defendant. The state trooper subsequently observed signs that the defendant was under the influence of alcohol. This Court held that the defendant’s suspicious behavior gave the state trooper reasonable suspicion to justify making the stop. Smith, 515 So.2d at 151.

In the instant ease, Officer Butterbrodt testified that White was in the lane approaching the checkpoint when he turned around and drove away. Officer Butter-brodt testified that no other vehicles were in front of White, thus eliminating the possible excuse that White turned to avoid any delay caused by the checkpoint. Under the facts of this case, Officer Butter-brodt was able to articulate a sufficiently particularized basis for a suspicion to justify an investigatory stop. United States v. Cortez, supra. Further, this Court, in Smith, recognized that a driver’s attempt to avoid a roadblock provided a basis for reasonable suspicion of criminal activity sufficient to conduct a Terry stop.

Based on the foregoing, we reverse the order of the circuit court and remand this case for proceedings consistent with this opinion.

REVERSED AND REMANDED.

WISE, P.J., and WELCH, WINDOM, and MAIN, JJ., concur.


author: WELCH, Judge.

text:
    STATE of Alabama v. David Mark GARNER.
    CR-08-0598.
    Court of Criminal Appeals of Alabama.
    Aug. 7, 2009.

      Troy King, atty. gen., and James B. Prude, asst. atty. gen., for appellant.
    Angela Cochran Morgan, Fort Payne, for appellee.
   WELCH, Judge.

The State of Alabama appeals from the pretrial dismissal of an indictment charging David Mark Garner with violating § 13A-10-15, Ala.Code 1975, for making a terrorist threat.

The indictment against Garner alleged, in relevant part, that Garner “did threaten, by any means, to commit any crime of violence or to damage any property, by intentionally or recklessly causing the evacuation of a building, place of assembly, or facility of public transportation .... ” (C. 3.) Garner filed a motion to dismiss the indictment. He argued in the motion that the indictment failed to adequately charge him with any offense; specifically, Garner alleged that the statute requires proof of a violation of both subsections (a)(1) and (a)(2) of § 13A-10-15, Ala.Code 1975, but that the indictment failed to allege that he had violated subsection (a)(2), Ala.Code 1975, which requires an intent to retaliate. Garner also argued in the motion to dismiss:

“The Defendant finds support for this argument in Ex parte Aurora Mercedes Soto v. State of Alabama, [991 So.2d 691 (Ala.2008) ]. In that opinion, Chief Justice Cobb specially concurred along with two other justices stating that the prevailing view of the Alabama Criminal Court of Appeals and the ‘current interpretation by the courts, (of § 13A-10-15), however, is not what the plain language of the statute says.’ [991 So.2d at 695.] The court states that the current interpretation requires only proof of § 13A-10-15(a)(l), and that interpretation is essentially wrong and that the court has ‘grave concerns regarding whether the Court of Criminal Appeals’ interpretation’ of the statute of correct. See Ex parte Soto [991 So.2d at 693].”

(C. 4.)

The trial court requested that the State submit a memorandum brief responding to Garner’s motion to dismiss, and the State did so. In the memorandum it submitted to the trial court, the State included a synopsis of the case that it said had been provided by the Fort Payne Police Department:

“On 10-19-2007, Archibald Quizon[,] owner of Archie’s Bar and Restaurant 110 Gault Av[e] N, Fort Payne, AL reported that David Mark Garner was causing problems at his establishment. He stated that around 11:30 pm same date that John Haynie[,] a [e]ook for him[,] came and told him a male had puked in the restrooms, and he was going to have the male to clean it up. A few minutes later Archie went into the restroom and it had not been cleaned up. Archie went to the male[,] David Garner[,] and told him he needs to clean his puke up from the restroom. David told him he was not going to clean it up. Archie made the waitress run his tab and made David pay and leave. Archie said a few minutes after he left, he ... called and said that he was going to sue Archie that he was a [l]awyer and he was going to sue him. The caller ID on Archie’s phone showed [a telephone number]. While Officers were there talking to Archie, David called back from the same number and Misty Thomas answered. This time David told Misty that he was going to blow the place up if they did not get everyone out. The decision was made to evacuate and search the area due to the threat made. Nothing unusual was discovered. Mr. Quizon stated by making everyone leave his business he loss [sic] about one thousand dollars on this incident.”

(C. 17-18.)

The trial court held a hearing on the motion to dismiss. At the hearing, Garner argued that a conviction under § 13A-10-15, Ala.Code, requires allegations and proof of subsection (a)(1), regarding the making of a threat to commit a crime of violence or to damage property in certain ways, and of (a)(2), regarding the intent to retaliate against certain individuals or groups of people. Garner further argued that because the indictment against him included only allegations related to (a)(1) and not to (a)(2), the indictment should be dismissed. Garner relied on Chief Justice Cobb’s special concurrence in Ex parte Soto, 991 So.2d 691 (Ala.2008), in which she noted that subsection (a)(2) of the statute describes the “requisite intent to retaliate” that must accompany an alleged terrorist threat. Garner acknowledged that the Chief Justice’s special concurrence has no precedential value because it is not an opinion of the Alabama Supreme Court. The State argued that the indictment against Garner tracked the language of subsection (a)(1) and that it adequately charged Garner with a violation of § 13A-10-15(a)(l), Ala.Code 1975.

The trial court entered an order dismissing the indictment. The court stated:

“The language set out in the indictment tracks Section 13A-10-15(a)(l), but contains no language from Section 13A[-]10-15(a)(2), which sets out the element of retaliatory intent.
“The court finds no case or published opinion in which the issue raised by [Garner’s] motion is directly addressed by the appellate courts; however, Chief Justice Cobb has stated in a concurring opinion that Section (a)(2) makes no grammatical sense unless it is read in conjunction with Section (a)(1). Ex parte Aurora Mercedes Soto, 991 So.2d 691 (Ala.2008).
“Applying the plain language of the statute, the court finds that the retaliatory intent element set out in the statute is a necessary element of the offense, and that because that element is missing from the indictment, it follows that the indictment is inadequate.
“Accordingly, it is adjudged that the motion to dismiss the indictment is granted, and the indictment is dismissed.”

(C. 31-32.)

On appeal, the State argues that the trial court erred when it dismissed the indictment because, it says, § 13A-10-15, Ala.Code 1975, does not require that an indictment include allegations of violations of both subsections (a)(1), regarding the threat to commit a crime of violence or to damage property, and (a)(2), regarding retaliatory intent. Specifically, the State argues:

“It is clear through the plain language of Section 13A-10-15 that the legislature intended to create two mutually exclusive ways in which to commit a crime of making a terrorist threat: In (a)(1), an individual commits the crime by threatening to commit a crime of violence or damage to any property that has the effect of terrorizing another person, causing a disruption of school activities or causing the evacuation of a building, place of assembly, public transportation facility or other serious public inconvenience; in (a)(2), an individual commits the crime by intending to retaliate against a person who acts as a witness in a judicial or administrative proceeding, or who provides information about a crime or possible crime or violation bail, pretrial release, probation or parole to law enforcement officers, including prosecutors, judges, or probation officers. Because these crimes are mutually exclusive, a person may commit a crime under (a)(1) portion of the statute without committing a crime under (a)(2). The trial court misconstrued the statute because it construed the statute to require an element of retaliation before a defendant could be convicted under either (a)(1) or (a)(2). In fact, only a charge under (a)(2) requires retaliation. Because Garner was indicted under (a)(1), the indictment did not need to include an allegation of retaliation.”

(State’s brief, at p. 15-16.) We agree with the State.

As the State notes in its brief to this Court, Garner did not challenge the constitutionality of the statute or allege that the indictment did not adequately inform him of the charge against him. The only issue before this Court is whether an indictment charging a violation of § 13A-10-15, Ala. Code 1975, for making a terrorist threat, must contain allegations regarding both subsections (a)(1) and (a)(2) of the statute.

Section 13A-10-15 provides:

“(a) A person commits the crime of making a terrorist threat when he or she threatens by any means to commit any crime of violence or to damage any property by doing any of the following:
“(1) Intentionally or recklessly:
“a. Terrorizing another person.
“b. Causing the disruption of school activities.
“c. Causing the evacuation of a building, place of assembly, or facility of pubhc transportation, or other serious public inconvenience.
“(2) With the intent to retaliate against any person who:
“a. Attends a judicial or administrative proceeding as a witness or party or produces records, documents, or other objects in a judicial proceeding.
“b. Provides to a law enforcement officer, adult or juvenile probation officer, prosecuting attorney, or judge any information relating to the commission or possible commission of an offense under the laws of this state, of the United States, or a violation of conditions of bail, pretrial release, probation, or parole.
“(b) The crime of making a terrorist threat is a Class C felony.”

In Soles v. State, 820 So.2d 163 (Ala.Crim.App.2001), this Court stated:

“ ‘ “The first rule of statutory construction is that the intent of the legislature should be given effect. Ex parte McCall, 596 So.2d 4 (Ala.1992); Volkswagen of America, Inc. v. Dillard, 579 So.2d 1301 (Ala.1991). However, when possible, the intent of the legislature should be gathered from the language of the statute itself. Dillard, supra. Thus, where the language of the statute is plain, the court must give effect to the clear meaning of that language. Ex parte United Service Stations, Inc., 628 So.2d 501 (Ala.1993); IMED Coup. v. Systems Eng’g Associates Corp., 602 So.2d 344 (Ala.1992).”
‘Beavers v. County of Walker, 645 So.2d 1365, 1376-77 (Ala.1994). See also Tuscaloosa County Comm’n v. Deputy Sheriffs’ Ass’n of Tuscaloosa County, 589 So.2d 687, 689 (Ala.1991) (“Words used in [a] statute must be given their natural, plain, ordinary, and commonly understood meaning, and where plain language is used a court is bound to interpret that language to mean exactly what it says. If the language of the statute is clear and unambiguous, then there is no room for judicial construction and the clearly expressed intent of the legislature must be given effect.” (citations omitted)).’ ”

820 So.2d at 164-65. See also Hankins v. State, 989 So.2d 610, 615 (Ala.Crim.App. 2007).

“ ‘Where, as here, this Court is called upon to construe a statute, the fundamental rule is that the court has a duty to ascertain and effectuate legislative intent expressed in the statute, which may be gleaned from the language used, the reason and necessity for the act, and the purpose sought to be obtained.’ Ex parte Holladay, 466 So.2d 956, 960 (Ala. 1985). ‘[T]he fundamental rule of statutory construction is to ascertain and give effect to the intent of the legislature in enacting the statute .... In construing the statute, this Court should gather the intent of the legislature from the language of the statute itself, if possible .... We may also look to the reason and necessity for the statute and the purpose sought to be obtained by enacting the statute.’ Pace v. Armstrong World Industries, Inc., 578 So.2d 281, 283 (Ala. 1991). ‘If possible, the intent of the legislature should be gathered from the language of the statute itself. However, if the statute is ambiguous or uncertain, the Court may consider conditions that might arise under the provisions of the statute and examine the results that will flow from giving the language in question one particular meaning rather than another.’ Volkswagen of America, Inc. v. Dillard, 579 So.2d 1301, 1305 (Ala. 1991).
“ ‘[AJmbiguous criminal statutes must be narrowly interpreted, in favor of the accused.’ United States v. Herring, 933 F.2d 932, 937 (11th Cir.1991). ‘[I]t is well established that criminal statutes should not be “extended by construction.” ’ Ex parte Evers, 434 So.2d 813, 817 (Ala.1983). ‘ “[C]riminal statutes must be strictly construed, to avoid ensnaring behavior that is not clearly proscribed.” ’ United States v. Bridges, 493 F.2d 918, 922 (5th Cir.1974).”

Carroll v. State, 599 So.2d 1253, 1264 (Ala. Crim.App.1992), aff'd, 627 So.2d 874 (Ala. 1993).

“In addition, it is also understood that the law favors rational and sensible construction. See King v. State, 674 So.2d 1381 (Ala.Crim.App.1995). In construing statutes, courts are not required to abandon common sense. See Sellers v. State, 935 So.2d 1207 (Ala.Crim.App. 2005). In Garrison v. Sumners, 223 Ala. 17, 134 So. 675 (1931), the Alabama Supreme Court aptly noted:
“ ‘The statute in question belongs to the criminal law. It is a fundamental rule of construction that penal statutes must be strictly construed, but should not be subjected to strained or unnatural construction in order to work exemption from their penalties. 36 Cyc. 1184. On the other hand, such statutes are not to be extended by construction. Gunter v. Leckey, 30 Ala. 591 [(1857)]. In Huffman v. State, 29 Ala. [40,] 44 [ (1856) ], quoted in Walton v. State, 62 Ala. [197,] 199 [(1878)], this court said: “While we disclaim the right to extend a criminal statute to cases out of its letter, yet we hold it to be our duty to apply it to every case clearly within the cause or mischief of making it, when its words are broad enough to embrace such case.” ’
223 Ala. at 18, 134 So. at 676.”

Hankins v. State, 989 So.2d at 618.

This Court has examined issues related to § 13A-10-15 in only a few cases. In Lansdell v. State, 25 So.3d 1169 (Ala.Crim. App.2007), cert. denied, 25 So.3d 1183 (Ala. 2009), while addressing an issue regarding lesser-included offenses, this Court stated: “Here, Lansdell was charged with violating § 13A-10-15(a)(l)a. Thus, the State was required to prove that Lansdell intentionally or recklessly terrorized another person by threatening another person by threatening to commit any crime or violence or to damage any property.” 25 So.3d at 1181. No allegation of a violation of section (a)(2) of the statute was contained in the indictment or proven at trial, and Lansdell did not argue that the State had failed to prove the retaliation element set forth in subsection (a)(2) of the statute.

In P.J.B. v. State, 999 So.2d 581 (Ala. Crim.App.2008), this Court determined that the State had failed to prove a prima facie case of making a terrorist threat under 13A-10-15(a)(l)b. The evidence demonstrated that P.J.B. had told his school-bus driver that he wanted to burn a certain field that had no connection to the school and that P.J.B.’s principal then met with P.J.B. to talk about the threat. P.J.B. argued on appeal, and this Court found, that proof that the principal met with P.J.B. was not sufficient to prove that he caused a “disruption of school activities,” and that the State had therefore not established a prima facie case of making a terrorist threat. P.J.B. did not present any arguments about subsection (a)(2), and this Court did not discuss that subsection of the statute.

This Court was not presented in Lansdell v. State or P.J.B. v. State with the specific issue whether an indictment charging a violation of § 13A-10-15 must include allegations of violations of both subsection (a)(1) and (a)(2), but we find it significant that the indictments in both of these cases charged only a violation of subsection (a)(1).

We acknowledge that § 13A-10-15, Ala. Code 1975, is not a model of clarity. See Ex parte Soto, 991 So.2d at 697 (Murdock, J., concurring specially)(“Strueturally, syntactically, and grammatically, § 13A-10-15(a), Ala.Code 1975, is nonsensical.”). See also Ex parte D.G., 994 So.2d 923 (Ala.2008) (Murdock, J., dissenting, joined by Cobb, C.J.) (“As I submitted in my special writing in Ex parte Soto, 991 So.2d 691, 697 (Ala.2008) (Murdock, J., concurring specially): ‘Structurally, syntactically, and grammatically, § 13A-10-15(a), Ala.Code 1975, is nonsensical.’ ”) However,

“ ‘[t]he inartificial manner in which many of our statutes are framed, the inaptness of expression frequently used, the want of perspicuity and precision not unfrequently met with, often require the court to look less at the letter or words of the statute than at the context, the subject-matter, the consequences and effects, and the reason and spirit of the law, in endeavoring to arrive at the will of the lawgiver.’ Cocciola et al. v. Wood-Dickerson Supply Co., 136 Ala. 532, 33 South. 856 [ (1903) ]; Graham v. City of Mobile, [17 Ala.App. 19,] 81 South. 355 [ (1919) ].”

State v. Dodd, 17 Ala.App. 20, 21, 81 So. 356, 357 (1919).

Reading the statute in context and applying the rules of statutory construction set forth above, and considering the cases from this Court in which allegations of only section (a)(1) have been involved, we hold that it is reasonable to conclude that the legislature intended subsections (a)(1) and (a)(2) to present alternative, exclusive methods of violating the statute. We conclude that a violation of section (a)(1) occurs if one person threatens another person and either intentionally or recklessly causes one of the results enumerated in (a)(l)a., (a)(l)b., or (a)(l)c. A person violates (a)(2) if he threatens another person with intent to retaliate against one of the people enumerated in either (a)(2)a. or (a)(2)b. If the statute were interpreted differently, that is, to require allegations and proof of both (a)(1) and (a)(2), that interpretation would permit a charge of threatening to commit a crime of violence or to damage property by recklessly terrorizing another person, causing the disruption of school activities, or causing the evacuation of certain buildings or other serious public inconvenience, with the intent to retaliate. This interpretation would be internally inconsistent and illogical, and it would violate one of the cardinal rules of statutory construction that favors rational and sensible interpretation of a statute. We note, too, that except in the most extraordinary circumstances one could not disrupt school activities or cause the evacuation of a building with the intent to retaliate against a witness or some other statutorily described victim. Therefore, the interpretation urged by Garner and applied by the trial court is not logical or sensible, and it fails to harmonize the provisions of the statute. A court “may consider conditions that might arise under the provisions of the statute and examine the results that will flow from giving the language in question one particular meaning rather than another. John Deere Co. v. Gamble, 523 So.2d 95, 96-97 (Ala.1988), quoting from Clark v. Houston County Comm'n, 507 So.2d 902, 903-04 (Ala.1987).” Volkswagen of America, Inc. v. Dillard, 579 So.2d 1301, 1305 (Ala.1991). We note, moreover, that “[t]he legislature will not be presumed to have done a futile thing in enacting a statute.” Ex parte Watley, 708 So.2d 890, 893 (Ala. 1997).

For the foregoing reasons, we hold that the trial court incorrectly determined that § 13A-10-15, charging making a terrorist threat, requires that both of the elements set forth in (a)(1) and (a)(2) must be charged in the indictment. The indictment against Garner tracked the language of the statute, and it was sufficient to charge Garner with making a terrorist threat. E.g., Smith v. State, 797 So.2d 503, 514 (Ala.Crim.App.2000). Therefore, we reverse the trial court’s judgment dismissing the indictment against Garner, and we remand the cause for further proceedings.

REVERSED AND REMANDED.

WISE, P.J., and WINDOM, KELLUM, and MAIN, JJ., concur.