author: WISE, Presiding Judge.

text:
    Jamie Marcus WITHERSPOON v. STATE of Alabama.
    CR-07-1505.
    Court of Criminal Appeals of Alabama.
    May 1, 2009.
    Rehearing Denied June 12, 2009.
    Certiorari Denied Sept. 18, 2009 Alabama Supreme Court 1081266.

      James E. Gentry, Tuscaloosa, for appellant.
    Troy King, atty. gen., and Beth Slate Poe, asst. atty. gen., for appellee.
   WISE, Presiding Judge.

The appellant, Jamie Marcus Wither-spoon, was convicted of felony murder for the murder of Eric Baggett, a violation of § 13A-6-2(a)(3), Ala.Code 1975, and first-degree robbery, a violation of § 13A-8-41(a)(1), Ala.Code 1975. The trial court sentenced him to serve concurrent terms of thirty-five years in prison. Wither-spoon filed a motion for a new trial, which the trial court denied after conducting a hearing. This appeal followed.

Jack Mohamed Musaed testified that, on December 29, 2005, he was working at the Raceway service station on McFarland Boulevard in Tuscaloosa; that, between 2:30 a.m. and 2:40 a.m., he was sitting behind the counter counting money when two masked men came into the store; that one man was wearing a red mask, and the other was wearing a black mask; that the man with the red mask had a gun; that the man in the black mask was wearing a white t-shirt; that the men were screaming and telling him not to move and to give them all of the money; that, when he saw them, he grabbed his gun, which was under the counter; that he jumped up and shot the man in the red mask; that the man in the red mask fell out through the door; that the man in the black mask got onto the ground; that he told the man to put his hands up, and the man did; that he telephoned law enforcement officers; that, while he was on the telephone, the man in the black mask tried to jump up and leave the store; that he told the man not to move and to keep his hands up; that the man was yelling and at one point said, “ ‘[Y]ou shot him, you shot him’ ”; that, at some point, the man in the black mask pulled up his mask; and that law enforcement officers arrived between five and eight minutes later. (R. 134.) Musaed also identified Witherspoon in court as one of the robbers.

Michael Aultman testified that, on December 29, 2005, he was with Witherspoon and Eric Baggett; that Witherspoon brought up a robbery and said he needed money; that, at one point, Witherspoon suggested robbing a convenience store; that they all rode around in his vehicle looking for something to rob; that Wither-spoon had an orange toboggan style cap, and he and Baggett talked about how they were going to put holes in it; that one of them burned holes in the cap; that With-erspoon had a gun; that he dropped With-erspoon and Baggett off at some apartments and left; and that he did not know what happened at the store.

The State presented evidence that, when law enforcement officers arrived at the scene, Baggett’s body was partially in the Raceway station and partially in the door of the station; that officers found a gun and a red or orange toboggan style cap that had holes burned into the front of it next to Baggett’s body; that Witherspoon was wearing a black stocking or skullcap that had a knot tied in the back; and that a skullcap is something that is worn on the head and that is flexible and can be worn as a mask. The State also presented evidence that Baggett was pronounced dead at the scene and that the cause of death was a gunshot wound to the chest.

Officer Kristopher Brad Thomas of the Tuscaloosa Police Department testified that, when he was at the Raceway, Wither-spoon told him that he and Baggett had just gone inside the store to buy something and that the clerk pulled a gun and shot his buddy.

Officer Charles A. Groves of the Tuscaloosa Police Department testified that he and Officer T.E. Burroughs transported Witherspoon to the Tuscaloosa Police Department and took him to an interview room; that he and Burroughs waited with Witherspoon in the interview room; that, while they were sitting there, Witherspoon said that he could not believe that the clerk had shot that guy; that the guy did not deserve it; that he did not know why he was there; that he went inside after the guy; and that, when he went inside, the clerk pointed a gun at him and told him to put his head on the counter until law enforcement officers arrived. Subsequently, a homicide investigator came in and asked them to step out of the interview room, and the investigator interviewed Wither-spoon. Burroughs testified that Wither-spoon also said that he did not know the man who had been shot.

I.

Witherspoon argues that the felony-murder doctrine should not apply when a participant in the underlying felony is killed by the victim of the felony. (Issue II in Witherspoon’s brief.)

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

§ 13A-6-2(a), Ala.Code 1975 (emphasis added).

A.

Initially, Witherspoon contends that the felony-murder doctrine should not apply to his case because the act that caused Baggett’s death was not done in furtherance of the robbery. However, he did not present this specific argument to the trial court. Therefore, it is not properly before this court. See Smith v. State, 602 So.2d 470, 472 (Ala.Crim.App.1992) (holding that “[s]pecific grounds of objection waive all other grounds not specified at trial”).

B.

Witherspoon also contends that the felony-murder doctrine should not apply in his case because neither he nor another participant in the underlying felony caused Baggett’s death.

“(a) A person is criminally liable if the result would not have occurred but for his conduct, operating either alone or concurrently with another cause, unless the concurrent cause was sufficient to produce the result and the conduct of the actor clearly insufficient.
“(b) A person is nevertheless criminally liable for causing a result if the only difference between what actually occurred and what he intended, contemplated or risked is that:
“(1) A different person or property was injured, harmed or affected; or
“(2) A less serious or less extensive injury or harm occurred.
“(c) When causing a particular result is a material element of an offense for which absolute liability is imposed by law, the element is not established unless the actual result is a probable consequence of the actor’s conduct.”

§ 13A-2-5, Ala.Code 1975.

In Pearson v. State, 601 So.2d 1119, 1126-29 (Ala.Crim.App.1992), this court addressed the issue of causation as follows:

“The victim’s injuries ‘must have ensued as the result of the act of the person sought to be charged.’ Holsemback v. State, 448 So.2d 1371, 1381 (Ala.Cr.App.1983) (quoting F. Wharton, The Law of Homicide, § 44 (1907)) (emphasis added). Section 13A-2-5(a), Ala. Code 1975, provides that ‘[a] person is criminally liable if the result would not have occurred but for his conduct, operating either alone or concurrently with another cause, unless the concurrent cause was sufficient to produce the result and the conduct of the actor clearly insufficient.’ The Commentary to § 13A-2-5 explains that
“ ‘this section is a modified “but for” test, with an express exclusion of those situations in which the concurrent cause was clearly sufficient to produce the result and the defendant’s conduct clearly insufficient.... If the actual result is not within the contemplation of the actor, or within the area of risk of which he should have been aware, he is not deemed to have “caused” the result. But if the difference is only one concerning which person or what property would be affected by defendant’s act, or one of the degree of harm which would result, he is still held to have “caused” the result.’
“The accused’s conduct is not the cause-in-fact of an injury if there was an unforeseen ‘supervening, intervening cause sufficient to break the chain of causation.’ Lewis v. State, 474 So.2d 766, 771 (Ala.Cr.App.1985).
“In Lewis, the victim shot himself after having played Russian roulette earlier in the day with the accused. The accused was charged with murder in connection with the victim’s death and was convicted of criminally negligent homicide. In reversing that conviction, this Court determined that the victim’s conduct was a ‘supervening, intervening cause sufficient to break the chain of causation,’ id., because it occurred after the Russian roulette game had ended and the accused had put the gun away and left the room. We held that ‘[ejven though the victim might never have shot himself in this manner if the appellant had not taught him to play Russian [rjoulette, we cannot say that the appellant should have perceived the risk that the victim would play the game by himself’ Lewis, 474 So.2d at 771 (emphasis added).
“As Lewis illustrates, foreseeability is the key issue in a causation inquiry. The ‘controlling question[]’ is ‘whether the ultimate result was foreseeable to the original actor.’ Henderson v. Kibbe, 431 U.S. 145, 151 n. 9, 97 S.Ct. 1730, 1735 n. 9, 52 L.Ed.2d 203 (1977). If the accused ‘should have perceived’ that his own conduct would concur with another cause to bring about the injury to the victim, then the other cause is concurrent, not supervening. See Shirah v. State, 555 So.2d 807, 812-13 (Ala.Cr.App.1989) (conduct of accused, who supplied morphine to victim, was the cause-in-fact of victim’s death from overdose of Secobarbital and morphine combined). On the other hand, a supervening cause ‘breaks the chain of causation’ precisely because it is not a reasonably foreseeable result of the accused’s conduct. Lewis, 474 So.2d at 771.
“In 1 W. LaFave & A. Scott, Substantive Criminal Law, § 3.12 (1986), the authors discuss two types of intervening causes, namely: those which are ‘coincidences’ and those which are ‘responses’ to the accused’s conduct:
“‘As might be expected, courts have tended to distinguish cases in which the intervening act was a coincidence from those in which it was a response to the defendant’s prior actions. An intervening act is a coincidence when the defendant’s act merely put the victim at a certain place at a certain time, and because the victim was so located it was possible for him to be acted upon by the intervening cause. The case put earlier in which B, after being fired upon by A, changed his route and then was struck by lightning is an example of a coincidence .... [I]t is important to note that there may be a coincidence even when the subsequent act is that of a human agency, as where A shoots B and leaves him lying in the roadway, resulting in B being struck by C’s car; or where A shoots at B and causes him to take refuge in a park, where B is then attacked and killed by a gang of hoodlums.
‘By contrast, an intervening act may be said to be a response to the prior actions of the defendant when it involves reaction to the conditions created by the defendant. The m,ost obvious illustrations are actions of the victim, to avoid harm, actions of a bystander to rescue him, and actions of medical personnel in treating the victim. But, while a response usually involves a human agency, this is not necessarily the case; infection of a wound inflicted by the defendant may be said to be an instance of germs responding to the victim’s condition.
“ ‘As common sense would suggest, the perimeters of legal cause are more closely drawn when the intervening cause was a matter of coincidence rather than response. There is less reason to hold the defendant liable for the bad results when he has merely caused the victim to be at a particular place at a particular time, than when he has brought other agencies into play in response to a danger or injury. Thus — though the distinction is not carefully developed in many of the decided cases — it may be said that a coincidence will break the chain of legal cause unless it was foreseeable, while a response will do so only if it is abnormal (and, if abnormal, also unforeseeable). If A shoots B and leaves him disabled and then C runs over B with his car (coincidence), the question is whether A could not have reasonably foreseen this possibility; if A shoots B and then Dr. C gives B improper medical treatment (response), the basic question is whether the treatment was abnormal (generally, negligent medical treatment is not so viewed). If A shoots B and B is taken to the hospital, where he comes into contact with some communicable disease which causes his death (coincidence), A is not guilty of murder unless this was foreseeable (unlikely, unless it was generally known that there had been an outbreak of this disease); if instead B’s wounds became infected and he died (response), A is guilty of murder (infection not abnormal).’

“Id. at 406-07 (emphasis in original).”

(Emphasis added.)

In People v. Hudson, 222 Ill.2d 392, 401-03, 305 Ill.Dec. 927, 856 N.E.2d 1078, 1083-84 (2006), the Illinois Supreme Court addressed the issue of causation and felony-murder as follows:

“In general, Illinois law provides that a defendant may be charged with murder pursuant to the ‘proximate cause’ theory of felony murder. People v. Lowery, 178 Ill.2d 462, 227 Ill.Dec. 491, 687 N.E.2d 973 (1997). The term ‘proximate cause’ describes two distinct requirements: cause in fact and legal cause. First Springfield Bank & Trust v. Galman, 188 Ill.2d 252, 257-58, 242 Ill.Dec. 113, 720 N.E.2d 1068 (1999). We have stated, ‘We believe that the analogies between civil and criminal cases in which individuals are injured or killed are so close that the principle of proximate cause applies to both classes of cases. Causal relation is the universal factor common to all legal liability.’ Lowery, 178 Ill.2d at 466, 227 Ill.Dec. 491, 687 N.E.2d 973. Legal cause ‘is essentially a question of foreseeability’; the relevant inquiry is ‘whether the injury is of a type that a reasonable person would see as a likely result of his or her conduct.’ Galman, 188 Ill.2d at 258, 242 Ill.Dec. 113, 720 N.E.2d 1068. Foreseeability is added to the cause-in-fact requirement because ‘even when cause in fact is established, it must be determined that any variation between the result intended and the result actually achieved is not so extraordinary that it would be unfair to hold the defendant responsible for the actual result.’ 1 W. LaFave, Substantive Criminal Law § 6.4, at 464 (2d ed.2003). Although foreseeability is a necessary component of a proximate cause analysis, it need not be specifically mentioned in a jury
instruction to communicate the idea of ‘proximate’ to a jury. Thus, the IPI civil jury instruction communicates the definition of ‘proximate cause,’ as ‘[any] cause which, in natural or probable sequence, produced the injury complained of. [It need not be the only cause, nor the last or nearest cause. It is sufficient if it concurs with some other cause acting at the same time, which in combination with it, causes the injury.]’ Illinois Pattern Jury Instructions, Civil, No. 15.01 (2005).

“We set forth the general parameters of the law of proximate cause in a felony-murder case in Lowery, albeit without the specific mention of the cause-in-fact and legal-cause components:

“ ‘It is equally consistent with reason and sound public policy to hold that when a felon’s attempt to commit a forcible felony sets in motion a chain of events which were or should have been within his contemplation when the motion was initiated, he should be held responsible for any death which by direct and almost inevitable sequence results from the initial criminal act. Thus, there is no reason why the principle underlying the doctrine of proximate cause should not apply to criminal cases. Moreover, we believe that the intent behind the felony-murder doctrine would be thwarted if we did not hold felons responsible for the foreseeable consequences of their actions.’ Lowery, 178 Ill.2d at 467, 227 Ill.Dec. 491, 687 N.E.2d 973.

“Thus, in Lowery, we held that the civil concepts of proximate cause are equally applicable to criminal cases.

“Whether the instant fact situation can be charged as felony murder was answered by this court in People v. Dekens, 182 Ill.2d 247, 230 Ill.Dec. 984, 695 N.E.2d 474 (1998). In Dekens, this

court held that ‘liability attaches “for any death proximately resulting from the unlawful activity — notwithstanding the fact that the killing was by one resisting the crime.” ’ Dekens, 182 Ill.2d at 249, 230 Ill.Dec. 984, 695 N.E.2d 474, quoting Lowery, 178 Ill.2d at 465, 227 Ill.Dec. 491, 687 N.E.2d 973. Further, a defendant may be liable for murder where the one resisting the crime causes the death of the defendant’s co-felon. Dekens, 182 Ill.2d at 252, 230 Ill.Dec. 984, 695 N.E.2d 474. We have affirmed our historical adherence to this form of liability in People v. Klebanowski, 221 Ill.2d 538, 304 Ill.Dec. 357, 852 N.E.2d 813 (2006), in a parallel fact situation. In rejecting defendant’s request that we adopt Justice Bilandic’s dissent in Dekens (Dekens, 182 Ill.2d at 254, 230 Ill.Dec. 984, 695 N.E.2d 474 (Bilandic, J., dissenting, joined by McMorrow, J.)), we stated, ‘In light of the thorough review of the proximate cause theory of liability contained in Dekens, the recency of the decision, and the principles of stare deci-sis [citations], we determine also that the proximate cause theory of liability is the theory applicable to the case at bar.’ Klebanowski 221 Ill.2d at 554-55, 304 Ill.Dec. at 367, 852 N.E.2d at 823.”

In this case, the State presented evidence that Witherspoon and Baggett entered the Raceway where Musaed was working; that both men were wearing masks, and Baggett had a gun; that both men were screaming and demanding money; and that Musaed pulled a gun from underneath the counter and shot Baggett. Therefore, the State established that Bag-gett would not have been killed but for the actions of Witherspoon and Baggett, who were participants in the robbery. Also, Musaed’s reactions to Witherspoon’s and Baggett’s conduct were not abnormal or unforeseeable. Because the actions of the participants in the robbery caused Bag-gett’s death, Witherspoon was properly convicted of felony murder pursuant to § 13A-6-2(a)(3), Ala.Code 1975.

II.

Witherspoon also argues that his convictions for both first-degree robbery and felony murder violate double jeopardy principles. In this case, the same robbery served as the basis for Witherspoon’s robbery conviction and his felony-murder conviction. Therefore, his convictions for both offenses violate double jeopardy principles. See Brooks v. State, 952 So.2d 1180 (Ala.Crim.App.2006); Edwards v. State, 907 So.2d 1077 (Ala.Crim.App.2004); Jones v. State, 895 So.2d 376 (Ala.Crim.App.2004); Harris v. State, 854 So.2d 145 (Ala.Crim.App.2002). Accordingly, we must remand this case for the trial court to vacate Witherspoon’s conviction and sentence for first-degree robbery.

For the above-stated reasons, we affirm Witherspoon’s conviction and sentence for felony murder. However, we remand this case to the trial court for that court to vacate his conviction and sentence for first-degree robbery.

AFFIRMED AS TO CONVICTION FOR FELONY-MURDER; REVERSED AND REMANDED AS TO CONVICTION FOR FIRST-DEGREE ROBBERY.

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


source: Caselaw Access Project

license: Public Domain

text:
    Terry Lynn KILLINGSWORTH v. STATE of Alabama.
    CR-08-0469.
    Court of Criminal Appeals of Alabama.
    Aug. 28, 2009.
    Rehearing Denied Sept. 25, 2009.

      Billy Shaun McGhee, Dothan, for appellant.
    Troy King, atty. gen., and Stephen N. Dodd, asst. atty. gen., for appellee.
   WISE, Presiding Judge.

The appellant, Terry Lynn Killings-worth, was convicted of first-degree assault, a violation of § 13A-6-20(a)(5), Ala. Code 1975. The trial court sentenced him, as a habitual offender, to serve a term of thirty-five years in prison. See § 13A-5-9(c)(2), Ala.Code 1975. Killingsworth filed a motion for a new trial, which the trial court denied after conducting a hearing. This appeal followed.

The State presented evidence that, on the morning of January 22, 2008, Killings-worth was driving a vehicle, ran a stop sign at the intersection of Newton Street and Park Avenue, and struck another vehicle. Ultimately, four vehicles were involved in the collision.

Officer Frank Reeves of the Dothan Police Department testified that, at 7:19 a.m. on January 22, 2008, he responded to the scene of an accident involving four vehicles at North Park Avenue and West Newton Street. Killingsworth had been driving one of the vehicles, and Desiree Runge had been driving another one of the vehicles. When Reeves arrived, medical personnel were attending to Runge and Killings-worth.

Reeves testified that he smelled the very strong odor of alcohol on Killingsworth. He also observed what appeared to be a bottle of gin and a can of beer in Killings-worth’s vehicle and therefore took photographs of the interior of Killingsworth’s vehicle.

Based on his investigation, Reeves testified that he believed Killingsworth ran a stop sign. He also stated that the type of damage he saw could happen if a vehicle’s brakes failed. Finally, he testified that he believed Killingsworth was intoxicated and that the level of intoxication impaired his ability to drive and operate a vehicle safety-

Reeves testified that, while he was at the hospital, he asked Killingsworth to provide a blood sample to be tested for blood alcohol content. However, Killings-worth refused to provide such a sample. Reeves also testified that he then obtained a court order so he could obtain a blood sample from Killingsworth and that he videotaped the process of drawing Kill-ingsworth’s blood.

Killingsworth’s blood was drawn at 9:45 a.m. Forensic testing revealed that, at that time, Killingsworth had a blood alcohol content of .157.

William Roger Henderson testified that, on January 22, 2008, Runge was driving him to work. He saw Killingsworth’s vehicle accelerate toward them and then hit their vehicle. Runge was injured as a result of the accident. Henderson estimated that Killingsworth’s vehicle was exceeding the posted speed limit of 30 miles per hour.

Georgia Ann Davis testified that, on January 22, 2008, she saw Killingsworth’s vehicle rapidly approaching a stop sign to her left. She believed the vehicle was traveling at more than 30 miles per hour. Davis testified that she remembered thinking he would not be able to stop and that she did not hear anything to indicate that he was using the brakes on his vehicle. Afterward, she saw Killingsworth’s vehicle hit Runge’s vehicle. Her vehicle was also hit as a result of the collision.

Dawna Jordan testified that she was on her way to work on the morning of the accident when she saw Killingsworth’s vehicle traveling very quickly. She said it was obvious he was not stopping or attempting to stop and was going to hit someone. After the collision, Killings-worth’s head was hanging on the steering wheel and he was not responsive.

Desiree Runge testified that, on January 22, 2008, she and Henderson were on North Park driving to work. The next thing she remembered was waking up at the hospital. She later learned that she suffered numerous injuries as a result of a collision involving Killingsworth.

Kwame Jackson testified that, on the morning of January 22, 2008, he saw Kill-ingsworth’s vehicle on West Newton Street about three blocks from the location of the collision. At that time, the vehicle was going “as fast as it would go.” (R. 165.) Specifically, Jackson testified that “[t]he car was going faster than 30.” (R. 169.) There were two stop signs before the intersection where the accident occurred. Jackson testified that the brake lights on Killingsworth’s vehicle came on one time, but that the vehicle never stopped. He did not see any brake lights as the vehicle approached the intersection with Park Avenue and, afterward, he saw Killings-worth’s vehicle hit other vehicles at the intersection with Park.

Benjamin Kosar testified that, around 7:00 a.m. on January 22, 2008, he saw Killingsworth’s vehicle heading toward a stop sign at a good speed and not slowing down. In fact, he testified that it appeared that the vehicle accelerated when it got to the stop sign. Ultimately, his vehicle was involved in the collision. After the collision, he looked into Killingsworth’s vehicle and observed that Killingsworth appeared to be “on drugs or something.” (R. 227.)

Stuart Keisling, a mechanic and a certified brake technician, testified for the defense that he examined Killingsworth’s vehicle and that it appeared that the vehicle was out of brake fluid. He also testified that the vehicle probably would not have slowed down if the brakes had been applied, but that the brake lights would have come on if the brake pedal had been pushed. Finally, he testified that, in his opinion, the vehicle’s brakes were not functional.

Killingsworth testified that the vehicle he was driving on January 22, 2008, belonged to his sister-in-law and that he sometimes borrowed it. He also testified that, as he was driving on Newton Street, he was traveling at 28-30 miles per hour, that he mashed the brakes as he approached the stop sign, and that the pedal went to the floor and the brakes did not work. Killingsworth stated that he did not have time to grab the emergency brake. He also stated that he had not had problems with the brake system in the vehicle before.

On cross-examination, Killingsworth admitted that he had been drinking alcohol the previous day and night and that he had gone to sleep around 10:30 p.m. or 11:00 p.m. He also admitted that he got up at some point, drank, and went back to sleep, but contended that he was not drunk on the morning of the accident. Finally, he asserted that the gin bottle and beer can that were in the vehicle did not belong to him.

I.

Killingsworth argues that the trial court erroneously denied his motion to remove Juror R.M. from the jury for cause. Specifically, he contends that the trial court should have removed Juror R.M. from the jury because, after the jury was struck and sworn, he advised the court that Officer Frank Reeves was dating his personal secretary and because he had a friendship with Reeves.

During the voir dire proceedings, the following occurred:

“THE COURT: Okay. The issue in this case is going to be, as a juror, is if you hear the evidence from the State— and apparently, Sergeant Reeves will be one of the witnesses. And of course, [defense counsel] will be able to cross-examine after [the prosecutor] asks him questions. They’ll both ask him questions. Even with that friendship, do you think you can still fairly listen to his testimony and follow the law as I give it to you?
“[R.M.]: I do. And the reason I brought it forth, I just — I didn’t want there to be some excuse for an appeal later or something.
“THE COURT: Right. You’ve done the right thing, but we need to follow up with a few questions.
“And, you know, other than what you just heard, that’s all I know about this case as well. The attorneys obviously know a lot more than I do.
“But if there’s any conflict by the defense — and I don’t know. It’s very common in cases, actually, for a great number of facts, both sides to agree to them. Okay?
“I don’t know if that’s going to be this case or not.
“But if there is a dispute by the defense and the State over some of the evidence or testimony presented by Mr. Reeves, do you think that you could still fairly judge that? You’ll be called upon, as a juror, to reconcile this disagreement. Do you think you can do that, notwithstanding your friendship with him, or your knowledge of him?
“[R.M.]: Yes. I think I can.
“THE COURT: In other words, if you hear all the evidence and you think there’s some point that he’s testified to that’s not correct — I really don’t think there’s going to be an allegation that he would lie. But, you know, one witness says one thing, says A, and he says it’s B, and you think the other witness is correct, would you have any problem going on what the other witness said, besides what Mr. Reeves says?
“[R.M.]: No, I would not.
“THE COURT: And then, finally, let me phrase it this way. If you think the State has proven the defendant’s guilt beyond a reasonable doubt, would you have any problem voting guilty?
“[R.M.]: No.
“THE COURT: And likewise, if you think that the State has not proven the defendant’s guilt beyond a reasonable doubt, would have any problem voting not guilty?
“[R.M.]: No, I would not.
“THE COURT: And again, knowing that you would probably see Sergeant Reeves in the near future as well?
“[R.M.]: Right.
“THE COURT: Any problem voting not guilty?
“[R.M.]: No.”

(R. 51-53.)

“It is good ground for challenge of a juror by either party:
“(1) That the person has not been a resident householder or freeholder of the county for the last preceding six months.
“(2) That he is not a citizen of Alabama.
“(3) That he has been indicted within the last 12 months for felony or an offense of the same character as that with which the defendant is charged.
“(4) That he is connected by consanguinity within the ninth degree, or by affinity within the fifth degree, computed according to the rules of the civil law, either with the defendant or with the prosecutor or the person alleged to be injured.
“(5) That he has been convicted of a felony.
“(6) That he has an interest in the conviction or acquittal of the defendant or has made any promise or given any assurance that he will convict or acquit the defendant.
“(7) That he has a fixed opinion as to the guilt or innocence of the defendant which would bias his verdict.
“(8) That he is under 19 years of age.
“(9) That he is of unsound mind.
“(10) That he is a witness for the other party.
“(11) That the juror, in any civil case, is plaintiff or defendant in a case which stands for trial during the week he is challenged or is related by consanguinity within the ninth degree or by affinity within the fifth degree, computed according to the rules of the civil law, to any attorney in the case to be tried or is a partner in business with any partner to such case.
“(12) That the juror, in any civil ease, is an officer, employee or stockholder of or, in case of a mutual company, is the holder of a policy of insurance with an insurance company indemnifying any party to the case against liability in whole or in part or holding a subrogation claim to any portion of the proceeds of the claim sued on or being otherwise financially interested in the result of the case.”

§ 12-16-150, Ala.Code 1975.

“The Mai judge is given much discretion in determining whether a potential juror should be struck for cause. According to Rule 18.4(e), Ala. R.Crim. P.:
“ ‘When a prospective juror is subject to challenge for cause or it reasonably appears that the prospective juror cannot or will not render a fair and impartial verdict, the court, on its own initiative or on motion of any party, shall excuse that juror from service in the case.’
“Although § 12-16-150, Ala.Code 1975, lists 12 ‘good ground[s] for challenge of a juror by either party,’ the trial judge may remove a potential juror if probable prejudice exists, even if none of the statutory grounds apply. Motes v. State, 356 So.2d 712, 718 (Ala.Cr.App.1978). The trial judge’s discretion, however, is not unlimited. This Court stated in Clark v. State, 621 So.2d 309, 321 (Ala. Cr.App.1992):
“ ‘[Wjhile the statutory grounds for challenges of jurors for cause enumerated in § 12-16-150, Code of Alabama 1975, are not all inclusive, there must be some ground that indicates probable prejudice in order to disqualify a prospective juror. Collins v. State, 385 So.2d 993, 999-1000 (Ala.Cr.App.1979), reversed on other grounds, 385 So.2d 1005 (Ala.1980). Where the ground is nonstatutory, it must be “some matter which imports absolute bias or favor, and leaves nothing to the discretion of the trial court.” Nettles v. State, 435 So.2d 146, 149 (Ala.Cr.App.), affirmed, 435 So.2d 151 (Ala.1983)....’
“Furthermore, in order to determine whether the trial judge’s exercise of discretion was proper, this Court will look to the questions directed to and answers given by the prospective juror on voir dire. Ex parte Cochran, 500 So.2d 1179 (Ala.1985).”

Holliday v. State, 751 So.2d 533, 535 (Ala.Crim.App.1999). Additionally, “ ‘[t]he trial judge is in the best position to hear a prospective juror and to observe his or her demeanor.’ ” McNair v. State, 653 So.2d 320, 324 (Ala.Crim.App.1992) (quoting Ex parte Dinkins, 567 So.2d 1313, 1314 (Ala. 1990)). Finally,

“[t]he test for determining whether a strike rises to the level of a challenge for cause is “whether a juror can set aside their opinions and try the case fairly and impartially, according to the law and the evidence.’ Marshall v. State, 598 So.2d 14, 16 (Ala.Cr.App.1991). ‘Broad discretion is vested with the trial court in determining whether or not to sustain challenges for cause.’ Ex parte Nettles, 435 So.2d 151, 153 (Ala.1983). ‘The decision of the trial court “on such questions is entitled to great weight and will not be interfered with unless clearly erroneous, equivalent to an abuse of discretion.” ’ Nettles, 435 So.2d at 153.”

Dunning v. State, 659 So.2d 995, 997 (Ala.Crim.App.1994).

In this case, Juror R.M. clearly indicated that the fact that he knew Reeves and the fact that his secretary was dating Reeves would not prevent him from being fair and impartial. Additionally, he indicated that the fact that he was friends with Reeves would not cause him any problem in passing judgment in Killingsworth’s case. As the trial court specifically observed: “He seems very capable of setting aside this relationship.” (R. 56.) Therefore, the trial court did not abuse its discretion when it denied Killingsworth’s challenge for cause.

II.

Killingsworth also argues that the trial court erred in admitting a video of him and several photographs into evidence. Specifically, he contends that the trial court should have excluded the photographs and the video because they were not relevant to the issue of whether he was intoxicated at the time of the accident, because they were unduly prejudicial, and because the video included inadmissible hearsay.

“Although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence.”

Rule 403, Ala. R. Evid. Further,

“[t]he power to make this determination is vested in the trial court. Zielke v. AmSouth Bank, 703 So.2d 354, 361 (Ala. Civ.App.1996); see also C. Gamble, Gamble’s Alabama Rules of Evidence § 403. We will not disturb such a determination unless it is clearly an abuse of discretion.”

Hayes v. State, 717 So.2d 30, 37 (Ala.Crim. App.1997).

A.

With regard to the photographs taken at the hospital, those photographs merely show Killingsworth sitting on a hospital bed with his arm held up in front of his face. The photographs were relevant to show Killingsworth’s physical condition at the time he was in the hospital, and they were not unduly prejudicial. Also, during his cross-examination of Reeves, defense counsel used the photographs to point out the fact that Killings-worth was hooked up to medical equipment and that he had injuries that needed to be treated. Therefore, the danger of unfair prejudice did not substantially outweigh the probative value of the photographs.

B.

The video of Killingsworth at the hospital shows him at the time medical personnel drew his blood. Initially, he tells medical personnel he is in a lot of pain and wants to be left alone. After medical personnel talk to him about drawing blood, Killingsworth says he will not authorize them to draw his blood. Eventually, someone tells Killingsworth he does not have to authorize them to draw his blood because they have a court order. Killingsworth repeatedly states that he refuses to let them draw blood and initially struggles when medical personnel attempt to draw his blood. The video shows several people holding Killingsworth down so they can subdue him and draw his blood. During the struggle, the medical personnel are talking to Killingsworth and trying to calm him down so they can draw his blood. At times in the video, Killingsworth is screaming in pain and yelling obscenities. Eventually, Killingsworth stops struggling, and medical personnel are able to draw his blood.

In this case, the video was extremely relevant to show Killingsworth’s physical condition, how intoxicated he still was after the accident, and how the alcohol affected him. Also, the statements made by Reeves and other medical personnel on the video were not incriminating or accusatory in nature. Further, during the trial, Reeves testified that Killingsworth refused to provide a blood sample and that he had to obtain a court order for a blood sample. Finally, before the State played the video, the trial court instructed the jury that the video was being offered by the State in an attempt to show that Killingsworth was intoxicated and to show how a person who was intoxicated would behave; that it was the jury’s decision as to whether to accept the State’s version of events; and that the jury could not hold the fact that Killings-worth used profanity against him. For these reasons, the danger of unfair prejudice did not substantially outweigh the probative value of the video.

Killingsworth also argues that the trial court should have excluded the video because it contained inadmissible hearsay. However, we initially note that his statements in the video are definitionally non-hearsay. See Rule 801(d)(2)(A), Ala. R. Evid. Moreover, the statements made by Reeves and medical personnel on the video were not offered to prove the truth of the matter therein. Rather, they were merely statements that put Killingsworth’s conduct and statements into context and that were used to calm Killingsworth while they were attempting to draw his blood. Therefore, they were also definitionally nonhearsay. See Rule 801(c), Ala. R. Evid.

For these reasons, the trial court did not err when it admitted the photographs and video into evidence.

III.

Killingsworth further argues that the trial court erred in denying his motion to suppress the State’s blood alcohol content evidence.

A.

First, Killingsworth contends that the State did not establish that there was probable cause to support the issuance of an order to obtain a sample of his blood.

“ ‘ “ ‘In reviewing the correctness of the trial court’s ruling on a motion to suppress, this Court makes all the reasonable inferences and credibility choices supportive of the decision of the trial court.’ ” Kennedy v. State, 640 So.2d 22, 26 (Ala.Cr.App.1993), quoting Bradley v. State, 494 So.2d 750, 761 (Ala.Cr.App.1985), aff'd, 494 So.2d 772 (Ala.1986), cert. denied, 480 U.S. 923, 107 S.Ct. 1385, 94 L.Ed.2d 699 (1987). A trial court’s ruling on a motion to suppress will not be disturbed unless it is “palpably contrary to the great weight of the evidence.” Parker v. State, 587 So.2d 1072, 1088 (Ala.Cr.App.1991).’
“Rutledge v. State, 680 So.2d 997, 1002 (Ala.Cr.App.1996).”

Maples v. State, 758 So.2d 1, 41 (Ala.Crim.App.1999).

“ ‘ “Probable cause deals with probabilities, not legal technicalities. It is grounded upon those practical, factual considerations of everyday life upon which reasonable and prudent men act. Brinegar v. United States, 338 U.S. 160, 69 S.Ct. 1302, 93 L.Ed. 1879 (1948).” Garter v. State, 405 So.2d [957] at 959 [(Ala.Crim.App.1981)]. “Probable cause does not require an officer to compile an airtight case against a suspect. Rather, it deals with the probable consequences of all the legitimate facts considered as a whole.” Williams v. State, 440 So.2d 1139, 1145 (Ala.Cr.App.1983).’
“Callahan v. State, 557 So.2d 1292, 1304-05 (Ala.Crim.App.1989).”

Snyder v. State, 893 So.2d 488, 534 (Ala.Crim.App.2003). Finally,

“[i]n assessing the adequacy of a search warrant affidavit, ‘[t]he focus of judicial inquiry should not be upon a “grading of the paper” of the affiant, but rather, should be based upon whether the constitutional rights of the party subject to the search will be violated if the warrant is issued.’ United States v. Sorrells, 714 F.2d 1522, 1528 (11th Cir.1983).”

Gord v. State, 475 So.2d 900, 905 (Ala.Crim.App.1985).

During the hearing on the motion to suppress the blood test results, Reeves testified that he obtained the warrant after Killingsworth refused to give a blood sample. In his affidavit in support of the issuance of the search warrant, Reeves stated:

“I am Corporal J. Frank Reeves, a sworn Dothan Police officer and Traffic Investigator, working on 01-22-2008 at approximately 07:20 was dispatched to a Motor Vehicle Crash at the intersection of North Park Avenue and West Newton Street in the City Limits of Dothan, Alabama. I arrived at 07:24 and saw a four vehicle -wreck that encompassed the whole intersection. Officer Saxon was the first on the scene at 07:21 and had indicated that there were two SEVERE INJURIES at this location.
“I went initially to a Purple Ford Mustang and saw a White Male sitting in the Drivers Seat and saw a GIN bottle on the arm rest. The driver identified at the hospital to me by Cpl. Jeremy Collins as White Male Mr. Terry Lynn Killingsworth, 01-06-1973, was slumped over the steering wheel unconscious and had a possible head injury. Paramedics attended to him and immediately transported him to the South East Alabama Medical Center for treatment. Mr. Killingsworth was asked at the South East Alabama center to submit a sample of his blood to be analyzed for levels of alcohol and controlled substances. Mr. Killingsworth refused to voluntarily give a sample for analysis.
“In my investigation of the crash I determined through witness statements that the vehicle operated by Mr. Kill-ingsworth was traveling West on West Newton Street and ran the stop sign and collided with a Silver Mitsubishi and pushed the Mitsubishi into a Volvo SUV and then into a Nissan Altima. The injuries sustained by the driver of the Mitsubishi required surgery and some facial reconstruction and the passenger of the Mitsubishi is complaining of a back injury.
“Due to my investigation of the accident I believe that Mr. Killingsworth was at fault in this crash and that Alcohol and or Controlled Substances may have contributed to this accident.
“Affiant shows that based on the above and foregoing facts and information, affiant has probable cause to believe that the above described property is concealed upon the aforesaid person described and is subject to seizure and makes this affidavit so that a warrant may be issued to search the said person.”

(C.R. 262.) The information included in the affidavit established a nexus between the accident and Killingsworth and the possibility he was under the influence of alcohol and/or a controlled substance at the time of the accident. Therefore, the information included in the affidavit established probable cause to support the issuance of the search warrant to obtain a sample of Killingsworth’s blood.

Moreover, “[ejvidence obtained by officers acting in objectively reasonable reliance on a warrant issued by a neutral and detached magistrate need not be excluded, even if the warrant is ultimately found to be invalid. United States v. Leon, 468 U.S. 897, 104 S.Ct. 3405, 82 L.Ed.2d 677 (1984).” Tolbert v. State, 718 So.2d 731, 734 (Ala.Crim.App.1997).

“In Leon, the United States Supreme Court recognized four circumstances in which the good-faith exception was inapplicable: (1) when the magistrate or judge relies on information in an affidavit that the affiant knew was false or would have known was false except for his reckless disregard of the truth; (2) when the magistrate wholly abandons his judicial role and fails to act in a neutral and detached manner; (3) when the warrant is based on an affidavit so lacking [in] indicia of probable cause as to render official belief in its existence entirely unreasonable; and (4) when the warrant is so facially deficient that the executing officer cannot reasonably presume it to be valid.”

Straughn v. State, 876 So.2d 492, 500 (Ala.Crim.App.2003).

The record does not indicate that the affidavit contained false information or that the issuing judge did not act in a neutral and detached manner. Also, the affidavit was not so lacking in indicia of probable cause and the warrant was not so facially deficient that officers could not have reasonably relied upon it. Because the officer relied upon the search warrant in good faith, the evidence he seized pursuant to that warrant was admissible even if the search warrant was not valid.

For these reasons, the trial court did not err in denying Killingsworth’s motion to suppress on this ground.

B.

Second, Killingsworth contends that the trial court erred in admitting the results of the testing because the State allegedly did not establish a chain of custody for the blood sample. However, he did not present this argument to the trial court until after the evidence had been introduced, the State had rested, and he had made a motion for a judgment of acquittal. Therefore, his objection was not timely, and his argument is not properly before this court. See Harris v. State, 821 So.2d 177 (Ala.2001).

IV.

Finally, Killingsworth argues that the State did not present sufficient evidence to support his conviction. Although he couches his argument in terms of the sufficiency of the evidence, he actually challenges the weight of the evidence.

“[I]n Johnson v. State, 555 So.2d 818, 819-20 (Ala.Cr.App.1989), this court noted the difference in ‘sufficiency’ and ‘weight’ as follows:
“ ‘The weight of the evidence is clearly a different matter from the sufficiency of the evidence. The sufficiency of the evidence concerns the question of whether, “viewing the evidence in the light most favorable to the prosecution, [a] rational factfinder could have found the defendant guilty beyond a reasonable doubt.” Tibbs v. Florida, 457 U.S. 31, 37, 102 S.Ct. 2211, 2215, 72 L.Ed.2d 652 (1982). Accord, Prantl v. State, 462 So.2d 781, 784 (Ala.Cr.App.1984).
“ ‘In contrast, “[t]he ‘weight of the evidence’ refers to ‘a determination [by] the trier of fact that a greater amount of credible evidence supports one side of an issue or cause than the other.’ ” Tibbs v. Florida, 457 U.S. at 37-38 [102 S.Ct. at 2216] (emphasis added). We have repeatedly held that it is not the province of this court to reweigh the evidence presented at trial. E.g., Franklin v. State, 405 So.2d 963, 964 (Ala.Cr.App.), cert. denied, 405 So.2d 966 (Ala.1981); Crumpton v. State, 402 So.2d 1081, 1085 (Ala.Cr.App.), cert. denied, 402 So.2d 1088 (Ala.1981); Nobis v. State, 401 So.2d 191, 198 (Ala.Cr.App.), cert. denied, 401 So.2d 204 (Ala.1981). ‘“[T]he credibility of witnesses and the weight or probative force of testimony is for the jury to judge and determine.’” Harris v. State, 513 So.2d 79, 81 (Ala. Cr.App.1987) (quoting Byrd v. State, 24 AlaApp. 451, 136 So. 431 (1931)).[’]
“(Emphasis in original.) See Smith v. State, 604 So.2d 434 (Ala.Cr.App.1992); Pearson v. State, 601 So.2d 1119 (Ala.Cr.App.1992); Curry v. State, 601 So.2d 157 (Ala.Cr.App.1992).”

Zumbado v. State, 615 So.2d 1223, 1240-41 (Ala.Crim.App.1993). We will not invade the province of the jury and reweigh the evidence in this case. Therefore, Killings-worth’s argument is not well-taken.

For the above-stated reasons, we affirm the trial court’s judgment.

AFFIRMED.

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

      . At the time of the trial, Runge was married to William Roger Henderson and was identified by the name Desiree Henderson.

      . To the extent Killingsworth may challenge the sufficiency of the evidence, his argument is without merit. Although the evidence was conflicting, "[tjhe weight and probative value to be given to the evidence, the credibility of the witnesses, the resolution of conflicting testimony, and inferences to be drawn from the evidence are for the jury.” Smith v. State, 698 So.2d 189, 214 (Ala.Crim.App.1996), aff'd, 698 So.2d 219 (Ala.1997).


text:
    Jamal Adarius McCAIN v. STATE of Alabama.
    CR-08-1161.
    Court of Criminal Appeals of Alabama.
    Aug. 28, 2009.

      Elizabeth Kammer, Birmingham, for appellant.
    Troy King, atty. gen., and Michael G. Dean, asst. atty. gen., for appellee.
   WISE, Presiding Judge.

On September 21, 2005, the appellant, Jamal Adarius McCain, 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 three years on supervised probation. Revocation proceedings were initiated in June 2008. After conducting a revocation hearing, the circuit court revoked McCain’s probation. This appeal followed.

Leslie Koepp testified that she was a probation parole supervisor; that June 11, 2008, was McCain’s time to report for his monthly visit with his probation officer and pay his supervision fees; and that, on that date, the clerk at the fee unit notified her that a possible counterfeit one hundred dollar bill had been presented to pay McCain’s probation fee. She also testified that all bills presented for payment are checked with counterfeit detection; that, if a bill turns black, it is counterfeit; that the one hundred dollar bill turned black; that she confiscated the one hundred dollar bill and told McCain he could go back to see his probation officer, but to have a seat in the lobby when he finished; that she told McCain he could not leave the building until after he had talked to her or Officer Langer; that she left the fee unit and went to call the United States Secret Service; and that, by the time Agent Stephen Lewis of the Secret Service arrived, McCain had left. Koepp testified that she telephoned McCain’s family members on two occasions to get McCain to come back to the probation office; that, between fifteen and twenty minutes later, McCain returned to the office; and that Lewis interviewed McCain. She further testified that she questioned McCain about his drug use; that McCain told her he had been smoking marijuana while he was in the custody of the Alabama Department of Corrections (“ADOC”); that McCain told her he had last smoked marijuana on June 10, 2008; and that McCain told her he would test positive if he was tested for drug use.

Stephen Lewis testified that, on June 11, 2008, Koepp telephoned him and told him she had a suspected counterfeit bill and wanted him to verify it; that he went to the probation office and met with Koepp; and that he looked at the bill and determined that it was counterfeit. He also testified that he questioned McCain after he returned to the probation office; that, originally, McCain denied any knowledge about the counterfeit bill; that he continued to question McCain; that, eventually, McCain told him he had gotten the bill from a man he had passed while walking to a gas station; and that McCain told him that the man wanted to change the bill for some money, that they exchanged bills, and that that was it. Lewis further testified that he knew McCain was not telling the truth; that, after he continued to question McCain, his story began to change; that, between one and one and one-half hours later, McCain told him he had gotten the bill the night before from a man who had cut his grass; and that McCain told him that he and his girlfriend, Tameka Green, looked at the bill, that the bill looked funny, and that they thought it could be counterfeit. Finally, Lewis testified that he also talked to Green; that Green’s story basically matched McCain’s; and that Green said that she and McCain both thought the bill looked funny.

Tameka Green testified that McCain was her boyfriend; that, on the evening of June 10, 2008, someone knocked on the door of their residence, and McCain went to the door; that she later went outside; that McCain and a man who had cut their grass before were outside; that the man asked McCain to change a one hundred dollar bill for him; that the man had not cut their grass that night; that McCain asked her to get some money off of the dresser, and she did; that McCain exchanged a ten dollar bill and some twenty dollar bills for the one hundred dollar bill; and that she went back into the house. She also testified that McCain looked at the bill and held it up; that he told her the bill looked funny; that she said she thought the bill was real and that it looked real; that McCain agreed that it looked real; and that they left it at that. Green further testified that, on June 11, 2008, she talked to Lewis; that he asked her about the bill; and that she told Lewis that McCain had looked at the bill, that the bill looked to be real, and that she thought the bill was real.

Taneisha McCain testified that she was McCain’s sister; that, on June 11, 2008, she took McCain to the probation office; that she waited outside; that it took longer than usual; that McCain came outside, and they left; that, at some point, McCain said he was hungry, so she said they would go get something to eat; that she telephoned her mother, and they stopped by her mother’s place of employment to get some money; that, at some point, her son, who was at her mother’s house, telephoned her; that her son told her that McCain’s probation officer had just telephoned and was looking for him; that she told him McCain would be home in a minute; that her son telephoned her again and said that the probation officer said that, if McCain did not get back to the probation office within the next twenty minutes, they were going to issue a warrant for his arrest and send the sheriff out to pick him up; that they turned around, and she took McCain back to the probation office; that she asked McCain why they were bringing him back, and he said he did not know why; that she told him not to lie to her; and that McCain again told her that he did not know why. She also testified that she sat in the vehicle waiting for McCain; that, at some point, a marshal or someone else came outside and told her she needed to claim McCain’s things; that she went and signed for his things; and that she did not know what McCain was “going in” for because no one would tell her. (R. 27.)

McCain testified that a man who told him his name was Edison had cut his grass on the Sunday before the incident in question; that Edison had cut his grass a couple of times; that he had not had any problems with Edison before that; that, between 8:00 p.m. and 9:00 p.m. on June 10, 2008, Edison came back to his house with a one hundred dollar bill and asked him if he could change it; that he said he could; that he went and got the money from Green; that he came back and exchanged the money; that he looked at the bill and thought it looked funny; that he asked Green if she believed the money was real; that Green looked at the money and said she believed it was real; and that he said, “[Ojkay,” and put it away. (R. 28.) He also testified that, on June 11, 2008, he went to the probation office; that he went to the desk to pay his $30 probation fee; that the woman “hit” the bill with the marker, held it up, “hit” it again, and said, “I don’t think this is real, son”; that he said, “ ‘[Wjhat?’ ” but he “kind of had the feeling”; that the woman told him the bill was not real and that she was going to have to call a probation officer to have it verified; that the woman called Koepp; and that he went and sat back down. (R. 29.) McCain further testified that Koepp came up and told him not to leave and that he needed to stay; that he left the probation office to get some money from his mother in case the bill was not real; that his mother worked at AmSouth Bank; that his sister took him to see his mother; and that he thought he needed to get money to pay his fees because he did not want to owe any money.

McCain also testified that he had not ever been tested for marijuana; that he told his probation officer that, if tested, he would test positive for marijuana; that he did so because he did not want to make the situation worse; that he was smoking marijuana a couple of times a week at that time; that he knew that smoking marijuana was a violation of his probation; and that he regretted smoking marijuana.

I.

McCain argues that the circuit court abused its discretion when it revoked his probation.

A.

Initially, McCain contends that the circuit court erroneously found that he had violated his probation by using a counterfeit bill to pay his probation fee because the evidence did not clearly indicate that he had personal knowledge that the one hundred dollar bill was counterfeit.

“ ‘The standard of proof in probation revocation hearings is not the same as that in a criminal trial. It is to the “reasonable satisfaction” rather than beyond a reasonable doubt or by a preponderance of the evidence.’ Hall v. State, 681 So.2d 251, 252 (Ala.Crim.App.1996), citing Ex parte Belcher, 556 So.2d 366, 868-69 (Ala.1989). In Ex parte Caffie, 516 So.2d 831 (Ala.1987), the Alabama Supreme Court stated:
“ ‘ “ ‘There is no definite criterion or measure of proof necessary to justify the revocation of one’s probation.’ Wright v. State, 349 So.2d 124 (Ala.Crim.App.1977). The evidence need not ‘be strong enough to convince the court beyond a reasonable doubt that the probationer has violated a term of his probation,’ Carter v. State, 389 So.2d 601 (Ala.Crim.App.1980); it needs only to reasonably satisfy the court of the truth of the charge. Goodrum v. State, 418 So.2d 942 (Ala. Crim.App.1982). Absent a gross abuse of discretion, the trial court’s ruling in a probation revocation will not be disturbed by this Court. Wright, supra.” ’
516 So.2d at 833-34, quoting Rice v. State, 429 So.2d 686, 687 (Ala.Crim.App.1983).”

Ewing v. State, 826 So.2d 199, 203 (Ala.Crim.App.2001).

At the conclusion of the revocation hearing, the circuit court stated:

“As the fact finder I have to go by the same rules I tell the jury. Most importantly, you can’t leave your common sense at the door.
“While on the one hand you would have to think what kind of an idiot would go to the probation office with a counterfeit hundred dollar bill.
“And then, on the other hand, all of these new bills look funny to all of us. However, in using common sense and experience, and unfortunately, for this hearing, he’s got me who’s been around the block a few times. You’ve got somebody coming to the door at eight o’clock at night who he says has mowed his grass in the past, or recently did it, comes in and wants to swap a hundred for change. That’s suspicious. Two, when he’s caught with it the next morning as opposed to immediately saying, whoa, wait a minute, I had my suspicions about this, let me go get some real money or go get the real deal, he doesn’t. He leaves when they ask him to stay. He gets his sister who’s taking time out from her schedule to get him to the probation office, and my hat goes out to her trying to help him do the right thing, doesn’t tell her a thing, because my understanding from the testimony she gets a call later from [her son] saying you better get him back down to the probation office. When she says, ‘Why you got to go back? I don’t know.’ The sister didn’t testify he said let’s go to mama I’ve got to get some real money or this money may be fake. None of that.
“And then, to add insult to injury, when he’s caught, he gives a couple of different stories to the secret service agent. This all, to me, adds up that he was trying to deceive everybody.”

(R. 39-40.) The record supports the circuit court’s findings, and we adopt them as part of this opinion. Therefore, the State presented sufficient evidence to reasonably satisfy the circuit court that McCain knew that the one hundred dollar bill he gave to the probation office was counterfeit. Accordingly, McCain’s argument is without merit.

B.

McCain also contends that the circuit court abused its discretion when it revoked his probation based solely on his admission that he had used marijuana and that, if tested, he would test positive for marijuana. Specifically, he asserts that the probation officer did not request a urine sample to verify his admission and that the probation office did not present any prior positive drug tests. However, McCain did not present this specific argument to the circuit court. Therefore, it is not properly before this court. See K.W.J. v. State, 905 So.2d 17 (Ala.Crim.App.2004).

C.

McCain further contends that, because he had diligently reported to his probation officer and had never been asked to submit a drug test, the circuit court should have considered alternative measures before it revoked his probation. Initially, we note that, although he requested leniency during his arguments at the conclusion of the hearing, he never argued that the circuit court abused its discretion when it did not consider alternatives other than revoking his probation. Therefore, we question whether this argument is properly before this court. See K.W.J., supra.

Moreover,

“[ajlthough Rule 27.6(d), Ala. R.Crim. P., provides that a trial court may ‘revoke, modify, or continue probation’ if it finds that a probationer has violated the terms and conditions of his probation, whether revocation and imposition of the original sentence or some other disposition is appropriate is a matter within the sound discretion of the trial court. Absent a clear abuse of discretion, a reviewing court will not disturb a trial court’s conclusions in a probation-revocation proceeding, including the determination whether to revoke, modify, or continue the probation. See, e.g., Ex parte J.J.D., So.2d 240 (Ala.2000) (holding that a trial court’s order in a probation-revocation proceeding will not be reversed absent a clear abuse of discretion); and Moore v. State, 432 So.2d 552, 553 (Ala.Crim.App.1983), quoting Wright v. State, 349 So.2d 124, 125 (Ala.Crim.App.1977) (holding that ‘ “[o]nly a gross abuse of discretion will justify the reviewing court in disturbing the trial court’s conclusions” ’). A trial court abuses its discretion only when its decision is based on an erroneous conclusion of law or where the record contains no evidence on which it rationally could have based its decision. See State v. Jude, 686 So.2d 528 (Ala.Crim.App.), cert. quashed, 686 So.2d 536 (Ala.1996), citing Dowdy v. Gilbert Eng’g Co., 372 So.2d 11 (Ala.1979).”

Holden v. State, 820 So.2d 158, 160 (Ala.Crim.App.2001).

In this case, McCain told Koepp that he had smoked marijuana the day before he reported to his probation officer, that he would test positive for marijuana, and that he had smoked marijuana while he was in the custody of ADOC. Further, at the revocation hearing, McCain testified that he had been smoking marijuana a couple of times a week and that he knew that that was a violation of his probation. Finally, the State presented evidence that McCain tried to use a counterfeit one hundred dollar bill to pay his supervision fees. Therefore, this was not a case where the circuit court based its decision on an erroneous conclusion of law or where the record does not contain any evidence to support its decision. Accordingly, the circuit court did not abuse its discretion when it revoked McCain’s probation and reinstated his original sentence.

II.

McCain also argues that the circuit court did not adequately reflect how much time he had served. Specifically, he contends that

“[tjhere is no specificity how much time had already been served or how this time is calculated. It was not indicated whether the defendant was given credit for the time he served in jail awaiting his probation hearing or whether his previous incarceration was used in the calculation. Therefore the sentence is ambiguous and could be potentially interpreted to impose a sentence greater than the original sentence.”

(McCain’s brief at p. 18.) The State concedes that the record is not clear as to whether the circuit court credited McCain for the time he served during his minimum period of confinement; that the circuit court did not clearly indicate how much credit it was giving McCain for the time he spent incarcerated pending the revocation hearing; and that it appeared that the amount of credit the circuit court gave him for the time he was incarcerated pending the revocation hearing might be excessive. Therefore, the State asks that we remand this case for the circuit court to clarify the amount of credit McCain received for the time he was incarcerated while serving his minimum period of confinement and for the amount of time he was incarcerated pending the revocation hearing.

Accordingly, we remand this case to the circuit court with instructions that it make specific, written findings of fact regarding the amount of credit McCain may have received for the time he spent incarcerated awaiting trial in this case, the amount of credit McCain received for the time he spent serving his minimum period of confinement, the amount of credit McCain received for the time he was incarcerated pending the revocation hearing, and its basis for determining those amounts. On remand, the circuit court shall take all necessary action to see that the circuit clerk makes due return to this court at the earliest possible time and within 42 days after the release of this opinion. The return to remand shall include a copy of the circuit court’s written order.

REMANDED WITH INSTRUCTIONS.

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

       Note from the reporter of decisions: On September 25, 2009, on return to remand, the Court, of Criminal Appeals affirmed, without opinion.