from Jefferson Circuit Court (CC-16-914; CC-16-915)
a bench trial, the appellant, Patrick Edward Arnold, was
convicted of burglary in the third degree, a violation of
§ 13A-7-7, Ala. Code 1975, and theft of property in the
first degree, a violation of § 13A-8-3, Ala. Code 1975.
The circuit court sentenced Arnold to 36 months'
imprisonment for each conviction; the court split that
sentence and ordered Arnold to serve 16 days in jail followed
by 2 years of supervised probation. The circuit court ordered
that the sentences run concurrently. The circuit court
further ordered Arnold to pay $22, 698.53 in restitution,
$300 to the crime victims compensation fund, and court costs.
following pertinent evidence was presented at the bench
trial. Eyewitnesses Elvis Pettway and Raymond Humphrey
testified that on August 24, 2015, Arnold was seen loading
furniture onto a truck owned by the victim, William Martin,
at Martin's residence. Both Pettway and Humphrey were
aware that Martin had moved out of the residence and into an
assisted-living facility, leaving his unoccupied house under
the supervision of his daughter, Donna Key, who had been
married to Arnold's father, Leland Arnold, until his
death. Pettway, Martin's across-the-street neighbor,
testified that Arnold approached him and asked his assistance
in loading a dresser onto the truck sometime during the day.
Pettway declined to help Arnold because he suffered from back
problems. According to Pettway, their interaction was
"quick" and ended with Arnold "politely"
turning around, crossing the street, and continuing to load
furniture. (R. 20.)
Martin's next door neighbor, testified that when he
returned from work, he learned from his neighbor, Vince
Holloway, that there was "a lot of activity going
on" at Martin's residence. (R. 33.) Humphrey's
wife, Sharon, was a real-estate agent who had listed
Martin's house for sale. Humphrey thought Sharon had sold
the house, but she responded that she had not.
testified that he and Sharon drove over to Martin's house
to investigate the situation. When they arrived, it was dark
outside. After he saw Martin's truck was filled with
furniture, Humphrey told Sharon to telephone the police.
Humphrey approached the man he later identified as Arnold and
told Arnold that he was there to check on some plumbing
issues Martin was having with his sink. Arnold told Humphrey
that he was "doing a lot of work" inside
Martin's house, and that Humphrey should come back in a
couple of days. (R. 35.) Arnold told Humphrey that he was
Martin's grandson and that he knew Martin's daughter,
Donna Key. At this point, Arnold had convinced Humphrey that
he had permission to be at Martin's residence, so
Humphrey turned around and began to walk back to his car.
However, Sharon was already on the telephone speaking to
police. Arnold, who was close by, overheard Sharon on the
telephone and ran into Martin's house. In light of his
reaction, Humphrey pulled his car in front of Martin's
truck in an attempt to block Arnold's exit. When Arnold
came out of the house, he entered Martin's truck, backed
it up, and drove across the neighbor's yard. Humphrey
pursued Arnold in his vehicle but eventually lost sight of
him. Martin's truck was later found by police, abandoned.
telephoned Key to inform her of the series of events that had
transpired. When Key arrived at the scene, she told the
police that the burglar might have been a handyman who had
worked at her father's house in the past. Key said the
handyman, Tim Vernon, had been dishonest with her in previous
Marion Williams was assigned to investigate the burglary of
Martin's residence. He testified that after receiving the
report on the burglary, he telephoned Key. Key supplied
Detective Williams with the name of Tim Vernon as a potential
suspect. Subsequently, Detective Williams developed
photographic lineups based around the physical appearances of
Vernon. Later that night, however, Humphrey and Sharon
recognized a photograph of the burglar on Key's Facebook
social media page. The individual was Key's stepson,
Arnold. The Humphreys informed Key of this fact, and Key told
Detective Williams. Thereafter, Detective Williams decided
there was no need to go forward with Vernon as a suspect.
Instead, he developed a photographic lineup based around
Arnold's driver's license photograph. He presented
the photographic lineup to Humphrey and Pettway, who
separately and independently identified Arnold as the
burglar. Arnold was subsequently arrested.
Arnold, Arnold's cousin, testified on Arnold's
behalf. Austin testified that he was with Arnold for the
duration of the evening of August 24, 2015. At the time,
Austin and Arnold lived together with their grandparents.
According to Austin, Arnold came home from band practice at
5:30 p.m. Thereafter, Austin and Arnold went out to buy
dinner for their grandparents. They brought food home and ate
with their grandparents at around 6:30 p.m. Austin testified
that after dinner he and Arnold relaxed in the basement
together, watching Netflix, an Internet streaming service,
and playing video games. A few hours later, at around 10:00
p.m., they went to a Planet Fitness owned gym and worked out
for about an hour and a half. To corroborate this testimony,
Arnold proffered evidence that, at 10:06 p.m. on August 24,
2015, his Planet Fitness card was electronically swiped at
the Homewood Planet Fitness location. Moreover, Austin's
name appeared on the Planet Fitness guest log for the same
also took the stand, reiterating much of Austin's earlier
testimony. Arnold testified that he and Key were never close
and that Key grew even more distant following the death of
his father and Key's husband.
both sides rested, the circuit court found Arnold guilty of
burglary in the third degree and theft of property in the
first degree. Arnold filed a timely motion for new trial.
Following a hearing, the circuit court denied the motion.
This appeal followed.
first contends that the circuit court abused its discretion
when it denied him youthful-offender status without first
holding a hearing as required by the Youthful Offender Act,
§ 15-19-1 et seq., Ala. Code 1975. Specifically, Arnold
contends that the circuit court was "required to examine
Arnold to a degree sufficient to enable the trial court to
make an intelligent determination as to whether, in its
discretion, Arnold was eligible for treatment as a youthful
offender." (Arnold's brief, p. 25.)
record indicates that when the case was initially called for
trial on November 15, 2016, the State sought a continuance.
At that time and while on the record, Arnold informed the
court that he wanted to make application for treatment as a
youthful offender. Specifically, Arnold wanted to put his
motion "on the record." (R. 6.) Noting that no
"paper application" had been made for
youthful-offender treatment, the circuit court denied
Arnold's oral motion for treatment as a youthful offender
and set the case for trial. (R. 6.) At the conclusion of
trial, Arnold moved for a new trial arguing, in part, that
the circuit court erred by denying his request for
youthful-offender status without holding a hearing first.
on appeal is restricted to questions and issues properly and
timely raised at trial.'" Ex parte
Coulliette, 857 So.2d 793, 794 (Ala. 2003) (citing
Newsome v. State, 570 So.2d 703, 717
(Ala.Crim.App.1989)). The rules of preservation apply equally
to constitutional issues. See D.W.L. v. State, 821
So.2d 246, 248
(Ala.Crim.App.2001)("'[C]onstitutional issues must
first be correctly raised in the trial court before they will
be considered on appeal.'" (quoting Hansen v.
State, 598 So.2d 1, 2 (Ala.Crim.App.1991))).
"'An issue raised for the first time on appeal is
not subject to appellate review because it has not been
properly preserved and presented.'"
Coulliette, 857 So.2d at 794 (citing Pate v.
State, 601 So.2d 210, 213 (Ala.Crim.App.1992)).
"[T]o preserve an issue for appellate review, it must be
presented to the trial court by a timely and specific motion
setting out the specific grounds in support thereof."
McKinney v. State, 654 So.2d 95, 99
motion for a new trial or a motion for a judgment of
acquittal is not sufficient to preserve the issue where no
timely objection was made at [trial]." Newsome v.
State, 570 So.2d at 717. See also Blanton v.
State, 886 So.2d 850, 876 n. 9
(Ala.Crim.App.2003)(noting that, absent a timely and
sufficient objection at trial, a motion for a new trial does
not preserve alleged error for appellate review); Hamrick
v. State, 548 So.2d 652, 655
(Ala.Crim.App.1989)("The grounds urged for a new trial
must ordinarily be preserved at trial by timely and
sufficient objections."). Because Arnold did not object
to the circuit court's failure to hold a hearing on his
application for youthful-offender status before trial or
during trial but instead raised his objection in a motion for
new trial, Arnold's objection was untimely and was not
preserved for appellate review.
next contends that the circuit court erred by excluding as
irrelevant evidence of a will dispute between Donna Key and
the Arnold family. Arnold contends that the evidence was
relevant to impeach Key for bias, prejudice, and/or interest.
record indicates that during cross-examination of Key, Arnold
asked Key whether there was animosity between her and
Arnold's family over the probate of her late
husband's estate. The State objected to the question on
the basis of relevancy. The circuit court initially overruled
the State's objection, but sustained the objection
admission or exclusion of evidence is a matter within the
sound discretion of the circuit court. Taylor v.
State, 808 So.2d 1215 (Ala. 2001). "The question of
admissibility of evidence is generally left to the discretion
of the trial court, and the trial court's determination
on that question will not be reversed except upon a clear
showing of abuse of discretion." Ex parte
Loggins, 771 So.2d 1093, 1103 (Ala. 2000).
"To be competent and admissible, evidence must be
relevant -- that is, evidence must tend to prove or disprove
the issues before the jury. Rule 401, Ala. R. Evid. The
determination of the relevancy and admissibility of evidence
rests largely in the sound discretion of the trial judge. The
trial judge is obliged to limit the evidence to that evidence
that would be necessary to aid the fact-finders in deciding
the issues before them, and to preclude evidence that is too
remote, irrelevant, or whose prejudice outweighs its