Opinion
CR-21-0143
11-03-2023
Earl Fitzgerald Webb v. State of Alabama
Appeal from Lee Circuit Court (CC-18-717)
MINOR, JUDGE
Earl Fitzgerald Webb appeals his convictions for first-degree burglary, see § 13A-7-5(a)(2), Ala. Code 1975, intimidating a witness, see § 13A-10-123, Ala. Code 1975, and third-degree assault, see § 13A 22(a)(1), Ala. Code 1975.
The circuit court sentenced Webb to 25 years' imprisonment on the burglary conviction, to 10 years' imprisonment on the intimidating-a-witness conviction, and to 12 months' imprisonment on the assault conviction; all sentences were to run concurrently.
On appeal, Webb argues: (1) that the circuit court erred by denying his motions to suppress the evidence seized from a search of his vehicle and house, (2) that the circuit court erred by admitting collateral-act evidence, and (3) that the circuit court erred by denying his motion for a judgment of acquittal. (Webb's brief, p. 3.) We affirm Webb's convictions and sentences for first-degree burglary and third-degree assault and his conviction for intimidating a witness. But, because the version of § 15-18-8(b), Ala. Code 1975, applicable to Webb's conviction for intimidating a witness requires that that sentence be split, we remand this case to the circuit court.
FACTS AND PROCEDURAL HISTORY
About 1:00 or 2:00 a.m. on October 4, 2017, J.B.E. woke up to the sound of breaking glass in her apartment on East Magnolia Avenue in Auburn. J.B.E. fell back to sleep but woke up a second time to something that "sounded like electricity." (R. 206.) J.B.E. opened her bedroom door and saw someone "crouching in the corner of [her] hallway." (R. 206, 208.) J.B.E. testified that the male, whom she described as "dressed in all black" with a stun gun in hand, ran at J.B.E. and tackled her. (R. 206, 208-09.) The male got on top of J.B.E., punching her and using the stun gun on her. She said she was hit with the stun gun "[f]ive or six" times. (R. 266.) As a result, J.B.E. eventually lost fingernails, as well as was burned and bruised.
At some point, J.B.E.'s roommate came out of his room and yelled at the male, who got up and ran out of the front door. J.B.E. telephoned emergency 911, and law enforcement arrived on the scene about one or two minutes later.
J.B.E. described the male as wearing a black ski mask, and all she could see were "dark skin, dark eyes." (R. 210, 230, 263.) She also described him as "[k]ind of stocky, ... wide shoulders." (R. 211.) J.B.E. testified that the description fit Webb's description.
J.B.E. testified that a window of her apartment had been broken- "[t]he exact same window that [she] caught a peeping Tom looking through" in August 2017. (R. 213.) She testified that the "peeping Tom" was wearing a black shirt, black pants, black boots, black gloves, and a black ski mask. J.B.E. testified that in the 10 years she had been living in her apartment, she had no other issues with crime except for these incidents.
At trial, Sgt. Dale Knowlton testified to the August 2017 incident involving Webb and J.B.E. (R. 429-51.) See also infra part I. On August 27, 2021, this court affirmed Webb's convictions involving the August incident. See Webb v. State (No. CR-19-1147), 360 So.3d 1065 (Ala.Crim.App.2021) (table). In that case, Webb was arrested on August 16, 2017, and was indicted on August 3, 2018.
Detective Will Turner testified that J.B.E. had described the stun gun used in her attack and that it was similar to the one found during the August search of Webb's vehicle. Detective Turner developed Webb as a suspect, given the August incident, the "physical description that was very similar to Mr. Webb's," and "[t]he cell phone data ... [that] put him in close proximity to her apartment at the time of the incident." (R. 295-96.) And Detective Turner confirmed that Webb on the morning of the October attack was scheduled to appear in court for the August 2017 incident.
Sgt. Chelsea Williams interviewed Webb on the day of the attack. Webb stated that he left Auburn at 7:00 p.m. the night before and went to a strip club in Atlanta. He stated that the strip club closed about 3:00 a.m., so he slept in his car until it was time to drive back to Auburn for his court appearance. He also stated that he did not own a stun gun.
Michael Bosillo, a custodian of records for T-Mobile cellular telephone company, reviewed the records associated with Webb's cellular telephone. Bosillo testified that the last telephone call made by Webb's number was 10:51 p.m. on October 3, 2017, and that the next call was not made until 6:09 a.m. on October 4, 2017. According to cell tower records, both calls were placed in the Opelika area.
Webb moved for a judgment of acquittal, arguing that the State had failed to make a prima facie case because, he said, "Mr. Webb was not identified at the time [of the October incident]." (R. 496.) The circuit court denied Webb's motion. The jury returned guilty verdicts for first-degree burglary, intimidating a witness, and third-degree assault. Webb appealed.
We have combined Webb's Issues I and II in Part I of this opinion.
Webb moved to suppress the evidence seized as a result of a search of Webb's vehicle and house. On February 6, 2020, the circuit court held a hearing on Webb's motion. At the hearing, the State called Sergeant Dale Knowlton and Detective Turner.
Webb originally filed the motion to suppress in the current case no. CC-18-717 but moved for the motion to apply also in case no. CC-18-611 (the August 2017 criminal-surveillance and indecent-exposure case).
About 1:00 a.m. on August 16, 2017, law enforcement received a telephone call from J.B.E., who had seen "a black male masturbating outside of her home." (R. 15-16.) J.B.E. stated that the male was "wearing all black, looking in her window" and that he drove off "in a vehicle, darkcolored, early '90s sedan, towards Magnolia Avenue." (R. 16, 24.) Within minutes, law enforcement observed a vehicle matching that description about a half mile from J.B.E.'s house and initiated a traffic stop. Sgt. Knowlton, who was at the stop, testified that, at the time, traffic was "very light" and there were "maybe one or two cars at the most on the road." (R. 18, 28.)
At the traffic stop, Sgt. Knowlton noted that the automobile was a dark-colored, mid-nineties sedan, and in the vehicle was a black male, Webb. According to Sgt. Knowlton, Webb was wearing a black shirt with shorts and there was a "pair of black pants wadded up on the passenger seat." (R. 20-21.) Because both the vehicle and the driver matched J.B.E.'s descriptions, law enforcement brought J.B.E. to the scene of the traffic stop, where she identified Webb as the person that she had seen masturbating outside her window. (R. 21.)
Webb gave law enforcement permission to search his vehicle. Law enforcement found inside a jar of Vaseline in the pocket of his pants, a roll of toilet paper on the seat, and a stun gun in the center console. J.B.E. signed a complaint, and Webb was arrested.
Detective Turner testified that Webb had "had a lot of contact with the Auburn Police Division for the same type of crime." (R. 38, 40.) He also interviewed J.B.E. on October 4, 2017, about the August 2017 incident. (R. 53.) On October 4, J.B.E. described her assailant as a black male "based off the eye and mouth area," wearing dark clothing, a ski mask, and possibly gloves. (R. 54.) J.B.E.'s description "was consistent with Mr. Webb." (R. 56.) And Webb had a court appearance scheduled for October 4, 2017, for the August incident involving J.B.E. (R. 56.)
Detective Turner spoke with Webb, who denied being in the area at the time of the October 4 attack because, Webb said, he was at a strip club in Atlanta and did not return to Auburn until about 7:00 a.m. (R. 56.) Yet Detective Turner testified that Webb's telephone records "put him within a half mile of the victim's residence at that time." (R. 57.) And the window used to enter J.B.E.'s house in the October incident was the same window Webb was seen masturbating outside of during the August incident. (R. 57.) As a result, Detective Turner obtained a search warrant for Webb's house. (R. 38, 41.)
Additional warrants for Webb's cellular telephone and vehicle were obtained. (R. 47-48, 50.).
At the end of the suppression hearing, Webb's counsel argued that, although several identifying statements had been made, "nobody described him as a black male." (R. 61-62.) He argued that the statements could not support initiating the traffic stop and obtaining a search warrant for Webb's house. (R. 30-31, 61-62.) The circuit court found there was reasonable suspicion to support the traffic stop and sufficient probable cause to apply for the search warrant. (R. 62-67.) The circuit court denied Webb's motions to suppress. (R. 67.)
"'In reviewing decisions of a trial court concerning a suppression of evidence, we apply a de novo standard of review when the evidence is not in dispute. State v. Hill, 690 So.2d 1201, 1203 (Ala. 1996). Because the evidence is undisputed, and the only quarrel is with the application of the law to the facts, we will review the evidence de novo, 'indulging no presumption in favor of the trial court's application of the law to those facts.' Stiles v. Brown, 380 So.2d 792, 794 (Ala. 1980) (citations omitted)." State v. Abrams, 263 So.3d 736, 739 (Ala.Crim.App.2018) (quotingState v. Banks, 734 So.2d 371, 372 (Ala.Crim.App.1999)). See also State v. Gray, 354 So.3d 1000, 1004 (Ala.Crim.App.2021) ("In reviewing a trial court's ruling on a motion to suppress, this Court reviews the trial court's findings of fact under an abuse-of-discretion standard of review.").
A. VEHICLE SEARCH
First, Webb argues that the circuit court erred by denying his motion to suppress the evidence relating to the search of Webb's vehicle. Webb argues that law enforcement lacked reasonable suspicion to initiate the August 2017 traffic stop. (Webb's brief, pp. 13-15.)
At the suppression hearing related to the search of Webb's vehicle, Webb argued:
"Judge, I mean, our argument would be that the probable cause for the stop itself and, you know, anything that-the description just wasn't good enough, frankly, to identify this particular defendant as the culprit here. ... And initiating a traffic stop based on that description, especially a traffic stop which did not include a late '90s sedan, is-is not enough. And that anything after that is fruit of the poisonous tree."(R. 30-31.)
About investigatory stops, this Court has held:
"'"Under Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968), law enforcement officers may conduct investigatory stops of persons or vehicles if they have a 'reasonable suspicion that criminal activity has occurred, is occurring, or is about to occur. See generally Caffie v. State, 516 So.2d 822, 825-26 (Ala.Crim.App.1986), [affirmed], 516 So.2d 831 (Ala.1987).' Lamar v. State, 578 So.2d 1382, 1385 (Ala. Crim. App.), cert. denied, 596 So.2d 659 (Ala. 1991). 'Reasonable suspicion is a less demanding standard than probable cause,' Alabama v. White, 496 U.S. 325, 330, 110 S.Ct. 2412, 2416, 110 L.Ed.2d 301 (1990), requiring only that the detaining officers 'have a particularized and objective basis for suspecting the person detained of criminal activity,' Webb v. State, 500 So.2d 1280, 1281 (Ala. Crim. App.), cert. denied, 500 So.2d 1282 (Ala. 1986)......Hinkle v. State, 86 So.3d 441, 451 (Ala.Crim.App.2011) (quoting State v. Davis, 7 So.3d 468, 470 (Ala.Crim.App.2008)).
At the suppression hearing, Sgt. Knowlton testified that on August 16, 2017, he learned from dispatch that J.B.E. had observed a "black male masturbating outside of her home." (R. 15-16.) J.B.E. had told dispatch that she saw the male, who was "wearing all black," drive away in a "vehicle, dark-colored, early '90s sedan, towards Magnolia Avenue." (R. 16, 24.) Within minutes, a vehicle matching that description was found about a half mile from J.B.E.'s house. Sgt. Knowlton testified that at that time there were "maybe one or two cars at the most on the road." (R. 18, 28.) After law enforcement began the traffic stop, Sgt. Knowlton identified the mid-nineties, dark-color sedan as belonging to Webb. Sgt. Knowlton also saw that Webb wore dark clothing.
Sgt. Knowlton had reasonable suspicion to conduct the investigatory stop on Webb's vehicle. Within minutes of the dispatch, law enforcement saw a man wearing dark clothing and driving a midnineties, dark-color sedan about a half mile from J.B.E.'s house. Both the vehicle and Webb matched J.B.E.'s description. Sgt. Knowlton testified that there were very few vehicles on the road at the time, and Webb's vehicle was the only one that matched the provided description. After law enforcement made the stop, Webb consented to the search of the vehicle. Thus, the circuit court did not err when it denied Webb's motion to suppress, and Webb is due no relief.
B. HOUSE SEARCH
Next, Webb argues that the circuit court erred by denying his motion to suppress the evidence resulting from the search of Webb's house. Webb argues that law enforcement lacked probable cause for the October 2017 search warrant. (Webb's brief, pp. 16-19.)
Webb does not specifically mention what evidence he is challenging in his appellate brief. But the record shows that the search warrant pertained to clothing and that clearly was recovered from Webb's house. (R. 289, 357.).
At the suppression hearing related to the search of Webb's house, Webb argued:
"Judge, our argument would be that the victim is-at least had an opportunity to give a description of the suspect. And the roommate gave a statement. The neighbor gave a statement. Nobody in any of those statements-that's at least four statements-nobody described him as a black male. Nobody gave him a height, weight. They described clothing. But it was, frankly, just dark clothing. But, I mean, Your Honor is wearing dark clothing right now. It's not uncommon. And I just don't think there's enough in those statements, given the number, the volume of written statements, that we realize this is a suppression hearing, but we'll just point out the hearsay, giving that many written statements is-is not enough to get a warrant for that house."(R. 61-62.)
The Fourth Amendment of the United States Constitution provides:
"The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue,
but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized."
"A search warrant can only be issued on probable cause, supported by an affidavit naming or describing the person and particularly describing the property and the place to be searched." § 15-5-3, Ala. Code 1975. "Probable cause must be determined by an analysis of the 'totality of the circumstances.'" Marks v. State, 575 So.2d 611, 614 (Ala.Crim.App.1990) (quoting Illinois v. Gates, 462 U.S. 213, 238, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983)).
Detective Turner testified that he applied for a search warrant for Webb's house based on the August 2017 incident, Webb's history of similar offenses, the August 2017 traffic stop, and the search of Webb's vehicle. (R. 41.) Before he applied for the search warrant, Detective Turner had interviewed J.B.E., who had identified Webb as the person she saw outside her window. (R. 41.) J.B.E. described the man in the August 2017 incident as a black male wearing "all black" clothing. (R. 54.)
Detective Turner initially revealed that he obtained a search warrant for Webb's house "[b]ased off the incident that happened that night and the previous history and previous dealings with separate cases." (R. 38.) Based on the context, "that night" referred to the August 2017 incident. (R. 37-38.) As noted above, Detective Turner later testified that he obtained the search warrant for Webb's house on October 4, 2017, after the current incident. (R. 45-46, 50.).
The record shows that there was sufficient probable cause to issue the warrant to search Webb's house. Detective Turner provided supporting facts including Webb's history with J.B.E. and other victims, the stun gun (first found in Webb's vehicle in August 2017 and later used in the attack), and J.B.E.'s description and subsequent identification of Webb as the "peeping Tom." And "[a]n issuing judge's determination that sufficient probable cause existed to support the warrant is 'entitled to great deference and is conclusive in the absence of arbitrariness.'" Bolden v. State, 205 So.3d 739, 742 (Ala.Crim.App.2015) (quoting Wamble v. State, 593 So.2d 109, 110 (Ala.Crim.App.1991), (quoting in turn United States v. Pike, 523 F.2d 734 (5th Cir. 1975), cert. denied, 426 U.S. 906, 96 S.Ct. 2226, 48 L.Ed.2d 830 (1976)). Thus, the circuit court did not err when in denied Webb's motion to suppress, and Webb is due no relief.
We have combined Webb's Issues III and IV in Part II of the opinion.
Webb argues that the circuit court erred by admitting collateral-act evidence under the "identity" exception to Rule 404(b), Ala. R. Evid. (Webb's brief, p. 19.) Webb argues that the collateral acts (the facts of the August incident) were too different from the current incident to satisfy the "signature crimes" test and that the probative value of the acts was substantially outweighed by their prejudicial effect. (Webb's brief, pp. 1932.) Webb also argues that the circuit court erred by admitting State's Exhibits 108 and 109 (case-action summaries, arrest warrants, and supporting affidavits from the August 2017 case) because, he said, their probative value was substantially outweighed by their prejudicial effect. (Webb's brief, p. 33.)
When Webb was tried, Rule 404(b), Ala. R. Evid., provided, in pertinent part:
"Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show action in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident ...."Rule 404(b) was amended effective May 1, 2023. The language quoted here, and the above changes, remains in Rule 404(b).
Before trial, the State filed a "Notice of Intent to Offer Proof of Other Crimes, Wrongs, or Acts" under Rule 404(b). (C. 385.) The State argued at a pretrial hearing that the Rule 404(b) motion put Webb on notice that the facts underlying the August 2017 case formed the res gestae of the October incident. (R. 75-77.) Webb responded that the two cases, apart from the facts relating to the intimidating a witness case, were "totally different" and "unrelated." (R. 77-78.) In its pretrial admission of the collateral-act evidence, the circuit court held:
"THE COURT: All right. ... I think that it does sound- and let the record reflect I presided over the other trial. So, I think it does meet the [Rule] 404(b) standard for the intent that was claimed in the motion, as well as the motive that was claimed in the motion. And I also agree that it is-you know, it is-the underlying case, so to speak, is-or collateral case, if you will, is an element. You know, establishing that is going to be an element of the new offense. And so-and it does sound like there are several operative facts which apply to both cases. So, I'm going to permit evidence as necessary to satisfy these requirements to be admitted.
"Now, [Defense Counsel], there may be objections you want to raise in the-and I can't predict that ahead of time, but to the extent the other case is explored. And it-I can envision a circumstance where the State might go too far in delving into that case, and I would entertain an objection. But as to the motions in front of the Court now and as to evidence that it is a requirement to be presented to prove the State's case in chief, then it may be presented. So it's granted as mentioned."(R. 79-80.)
Later, the State introduced evidence regarding the August incident through J.B.E.'s testimony and Exhibits 108 and 109. Before the admission of the exhibits, a discussion was held outside the presence of the jury. (R. 244-48.) Webb objected, "on the grounds that that stuff is irrelevant to what happened in this case" and that it "could be prejudicial." (R. 244-45.) The circuit court agreed to allow Exhibits 108 and 109 "with some changes," i.e., redactions to "the last sentence of the probable cause ... which mentions prior convictions or adjudications." (R. 246-47.) Webb did not object to the circuit court's ruling. (R. 247-48.)
The State offered the exhibits during J.B.E.'s testimony and identified them as "documents related to the case [she] testified about in August." (R. 254-55.) After the State moved to admit the exhibits, the circuit court held that "the Court notes the earlier objections and admits the documents as-with the instructions provided at the time their admission was taken up." (R. 255.) The exhibits were later referenced during Detective Turner's re-cross as "show[ing] that there was an appointment for Mr. Webb to be in court on October 4th, 2017, at 11:00 a.m." (R. 314.)
First, Webb did not object to the circuit court's admission of the redacted versions of State's Exhibits 108 and 109; thus, Webb's argument is not preserved for appellate review. See Ex parte Coulliette, 857 So.2d 793 (Ala. 2003) (quoting Newsome v. State, 570 So.2d 703, 717 (Ala.Crim.App.1989) ("'Review on appeal is restricted to questions and issues properly and timely raised at trial.'")). Further, the error, if any, was harmless. Those exhibits contained J.B.E.'s statement to police made on August 17, 2017, which was cumulative of her trial testimony that, on August 16, 2017, she saw Webb "masturbating, looking in [her] window." (C. 569, 573; R. 202-03.) Thus, Webb is due no relief.
Next, Webb's argument that evidence about the August incident was not relevant and probative lacks merit.
"The admission or exclusion of evidence is a matter within the sound discretion of the trial court." Taylor v. State, 808 So.2d 1148, 1191 (Ala.Crim.App.2000), affd, 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). "Relevant evidence" is defined as "evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence." Rule 401, Ala. R. Evid. "The evidence of another similar crime must not only be relevant, it must also be reasonably necessary to the government's case, and it must be plain, clear, and conclusive, before its probative value will be held to outweigh its potential prejudicial effects." Averette v. State, 469 So.2d 1371, 1374 (Ala.Crim.App.1985).
The evidence of the August incident was relevant to show motive. "Evidence tending to establish motive is always admissible." Horton v. State, 217 So.3d 27, 53 (Ala.Crim.App.2016) (quoting Stephens v. State, 982 So.2d 1110, 1127-28 (Ala.Crim.App.2005), rev'd on other grounds, 982 So.2d 1148 (Ala. 2006)). Webb's actions in August were also part of the res gestae of the current offense and thus admissible. See Doster v. State, 72 So.3d 87-89 (Ala.Crim.App.2010) (recognizing the admission of evidence of other criminal acts to complete the story of the crime on trial by proving its immediate context of happenings near in time and place). Even Webb's counsel admitted that "the facts [of both crimes] are sort of interrelated." (R. 8.) Thus, the circuit court, which presided over both cases, did not err when it allowed collateral-act evidence about the August incident, and Webb is due no relief.
Finally, the probative value of the collateral-act evidence was not substantially outweighed by undue prejudice. See Rule 403, Ala. R. Evid. (providing that, "[a]lthough 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.").
III. SUFFICIENCY OF THE EVIDENCE
Webb argues that the circuit court erred by denying his motion for a judgment of acquittal because, he says, "the State evidence failed to prove Webb's guilt beyond a reasonable doubt; specifically, because there was insufficient evidence identifying Webb as the assailant." (Webb's brief, p. 35.)
"The role of this Court when reviewing a challenge to the sufficiency of the evidence is well settled:
"'"'In determining the sufficiency of the evidence to sustain a conviction, a reviewing court must accept as true all evidence introduced by the State, accord the State all legitimate inferences therefrom, and consider all evidence in a light
most favorable to the prosecution.'" Ballenger v. State, 720 So.2d 1033, 1034 (Ala.Crim.App.1998), quoting Faircloth v. State, 471 So.2d 485, 488 (Ala.Crim.App.1984), aff'd, 471 So.2d 493 (Ala. 1985). "'The test used in determining the sufficiency of evidence to sustain a conviction is whether, viewing the evidence in the light most favorable to the prosecution, a rational finder of fact could have found the defendant guilty beyond a reasonable doubt.'" Nunn v. State, 697 So.2d 497, 498 (Ala.Crim.App.1997), quoting O'Neal v. State, 602 So.2d 462, 464 (Ala.Crim.App.1992). "'When there is legal evidence from which the jury could, by fair inference, find the defendant guilty, the trial court should submit [the case] to the jury, and, in such a case, this court will not disturb the trial court's decision.'" Farrior v. State, 728 So.2d 691, 696 (Ala.Crim.App.1998), quoting Ward v. State, 557 So.2d 848, 850 (Ala.Crim.App.1990). "The role of appellate courts is not to say what the facts are. Our role ... is to judge whether the evidence is legally sufficient to allow submission of an issue for decision [by] the jury." Ex parte Bankston, 358 So.2d 1040, 1042 (Ala. 1978).
"'"The trial court's denial of a motion for judgment of acquittal must be reviewed by determining whether there was legal evidence before the jury at the time the motion was made from which the jury by fair inference could find the defendant guilty. Thomas v. State, 363 So.2d 1020 (Ala. Cr. App. 1978). In applying this standard, this court will determine only if legal evidence was presented from which the jury could have found the defendant guilty beyond a reasonable doubt.
Willis v. State, 447 So.2d 199 (Ala. Cr. App. 1983). When the evidence raises questions of fact for the jury and such evidence, if believed, is sufficient to sustain a conviction, the denial of a motion for judgment of acquittal does not constitute error. McConnell v. State, 429 So.2d 662 (Ala. Cr. App. 1983)."'
"Gavin v. State, 891 So.2d 907, 974 (Ala.Crim.App.2003), cert. denied, 891 So.2d 998 (Ala. 2004) (quoting Ward v.State, 610 So.2d 1190, 1191 (Ala.Crim.App.1992))." Collier v. State, 293 So.3d 961, 966 (Ala.Crim.App.2019).
Contrary to Webb's argument, any conflict in the evidence, including the identity of J.B.E.'s assailant, was for the jury to resolve. See Bennett v. State, 584 So.2d 869, 871 (Ala.Crim.App.1990) (holding that the victim's eyewitness testimony was sufficient evidence of identity). Thus, the circuit court did not err when it denied Webb's motion for a judgment of acquittal, and Webb is due no relief.
IV. ILLEGAL SENTENCE
Although the issue was not raised by either party, we note that Webb's 10-year sentence for his intimidating-a-witness conviction does not comply with the version of § 13A-5-6(a)(3), Ala. Code 1975, applicable to that conviction. See Davis v. State, 571 So.2d 1287, 1289 (Ala.Crim.App.1990) ("A defendant's sentence is determined by the law in effect at the time of the commission of the offense."); Hunt v. State, 659 So.2d 998, 999 (Ala.Crim.App.1994) ("Matters concerning unauthorized sentences are jurisdictional and, therefore, can be reviewed even if they have not been preserved. Jones v. State, 585 So.2d 180, 181 (Ala. Cr. App. 1991). In Ex parte Brannon, 547 So.2d 68 (Ala. 1989), [the Alabama Supreme Court] held that 'when a sentence is clearly illegal or is clearly not authorized by statute, the defendant does not need to object at the trial level in order to preserve that issue for appellate review.' 547 So.2d at 68."). See also Jackson v. State, 317 So.3d 1018, 1024 (Ala.Crim.App.2020).
"Intimidating a witness is a Class C felony." § 13A-10-123, Ala. Code 1975. When Webb committed that offense in October 2017, § 13A-5-6(a)(3), Ala. Code 1975, provided that the punishment for committing a Class C felony "shall be for a definite term of imprisonment" for "not more than 10 years or less than 1 year and 1 day and must be in accordance with subsection (b) of Section 15-18-8[, Ala. Code 1975,] unless sentencing is pursuant to Section 13A-5-9[, Ala. Code 1975]." Because Webb was not sentenced as a habitual felony offender under § 13A-5-9, Webb's sentence "'must fall within the range set out in § 13A-5-6(a)(3), Ala. Code 1975, and must comply with subsection (b) of the Split Sentence Act.'" Zink v. State, [Ms. CR-2022-0919, Sept. 22, 2023]___So. 3d___,___(Ala.Crim.App.2023) (quoting Jackson v. State, 317 So.3d 1024 (Ala.Crim.App.2020)).
At sentencing, the court noted that Webb had a prior felony conviction but that that conviction had been overturned in 2002. (R. 56869.).
"[In 2017,] Section 15-18-8(b) of the Split Sentence Act provide[d] in relevant part:
"'Unless a defendant is sentenced to probation, drug court, or a pretrial diversion program, when a defendant is convicted of an offense that constitutes a Class C ... felony offense and receives a sentence of not more than 15 years, the judge presiding over the case shall order that the convicted defendant be confined in a prison, jailtype institution, treatment institution, or community corrections program for a Class C felony offense ... for a period not exceeding two years in cases where the imposed sentence is not more than 15 years, and that the execution of the remainder of the sentence be suspended notwithstanding any provision of the law to the contrary and that the defendant be placed on probation for a period not exceeding three years and upon such terms as the court deems best ....'
"'In short, in 2017, §§ 13A-5-6(a)(3) and 15-18-8(b), Ala. Code 1975, d[id] not allow a trial court to impose a "straight" sentence for a Class C felony when the Habitual Felony Offender Act does not apply.' Jackson, 317 So.3d at 1025. Because [Webb] was not a habitual felony offender, the trial court could not impose a straight sentence. Rather, once the trial court imposed a sentence within the statutory range for a Class C felony, the trial court should have either sentenced [Webb] to 'probation, drug court, or a pretrial diversion program' or 'split' [Webb's] sentence for him to serve a confinement period of no more than two years, suspended the remainder, and imposed a term of probation of no more than three years."Zink,___So. 3d at___.
Section 15-18-8(b) was substantially amended effective July 1, 2023. The quoted language is no longer contained in Subsection (b).
Thus, we must remand this case to the circuit court for that court to resentence Webb on his conviction for intimidating a witness. Webb's 10-year base sentence, however, is valid and cannot be changed. See Moore v. State, 871 So.2d 106, 110 (Ala.Crim.App.2003) (recognizing that, when the sentencing court imposed a valid base sentence, the court may not change that base sentence on remand).
CONCLUSION
We affirm Webb's convictions and sentences for first-degree burglary and third-degree assault and his conviction for intimidating a witness. We remand this matter, however, for the circuit court to resentence Webb on his conviction for intimidating a witness. 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 date of this opinion. The return to remand shall include the new written sentencing order.
AFFIRMED IN PART; REMANDED WITH INSTRUCTIONS.
Windom, P.J., and Kellum, McCool, and Cole, JJ., concur.