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The summaries of the Colorado Court of Appeals published opinions constitute no part of the opinion of the division but have been prepared by the division for the convenience of the reader. The summaries may not be cited or relied upon as they are not the official language of the division. Any discrepancy between the language in the summary and in the opinion should be resolved in favor of the language in the opinion. SUMMARY February 8, 2018 2018COA12 No. 14CA0144, People v. Trujillo — Criminal Law — Sentencing — Probation — Indeterminate Sentence A division of the court of appeals considers whether a Colorado statute authorizes imposition of a sentence to an indeterminate term of probation and whether the defendant was entitled to the benefit of amendments to the statute criminalizing theft. Relying on People v. Jenkins, 2013 COA 76, 305 P.3d 420, the division concludes that section 18-1.3-202(1), C.R.S. 2017, provides statutory authority for the imposition of an indeterminate probation sentence. Following People v. Stellabotte, 2016 COA 106, ___ P.3d ___ (cert. granted Feb. 6, 2017), the majority further concludes that the defendant is entitled to the benefit of amendments to the theft statute. The partial dissent concludes that the amendments to the theft statute do not apply retroactively, and would therefore affirm the sentence in full. Additionally, the division rejects the defendant’s contentions that reversal is required due to the trial court’s rejection of defense-tendered jury instructions, wrongfully admitted character evidence, and prosecutorial misconduct. However, the division remands for the trial court to make findings of fact concerning the assessment of the costs of prosecution. Accordingly, the division affirms the conviction, affirms the sentence in part, vacates the sentence in part, and remands the case with directions. COLORADO COURT OF APPEALS 2018COA12 Court of Appeals No. 14CA0144 Mesa County District Court No. 11CR447 Honorable Valerie J. Robison, Judge The People of the State of Colorado, Plaintiff-Appellee, v. Michael Floyd Trujillo, Defendant-Appellant. JUDGMENT AFFIRMED, SENTENCE AFFIRMED IN PART AND VACATED IN PART, AND CASE REMANDED WITH DIRECTIONS Division I Opinion by JUDGE TAUBMAN Richman, J., concurs Furman, J., concurs in part and dissents in part Announced February 8, 2018 Cynthia H. Coffman, Attorney General, Joseph G. Michaels, Assistant Attorney General, Denver, Colorado, for Plaintiff-Appellee Douglas K. Wilson, Colorado State Public Defender, James S. Hardy, Deputy State Public Defender, Denver, Colorado, for Defendant-Appellant ¶1 Defendant, Michael Floyd Trujillo, appeals his judgment of conviction entered on a jury verdict finding him guilty of one count of theft of more than $20,000 and one count of criminal mischief of $20,000 or more. He also appeals his sentence. We perceive no basis for reversing his convictions, but remand for the trial court to make findings of fact regarding the assessment of the costs of prosecution and to reclassify his theft conviction as a class 4 felony. I. Background ¶2 In 2007, Trujillo began building a home, doing much of the labor himself and initially using his own money to fund the project. He later took out a construction loan from the victim, a bank, for just under $255,000. After construction was completed on the house, Trujillo stopped making his monthly loan payments. The bank declined to restructure the loan and initiated foreclosure proceedings in September 2010. ¶3 Before the foreclosure sale, Trujillo removed or destroyed property in the house, including kitchen cabinets, countertops, interior and exterior doors, doorjambs and casings, flooring, baseboards, light fixtures, bathroom fixtures, the fireplace, handrails, the boiler, the air conditioner, and the garage door. 1  Because of this damage, the house was appraised at $150,000; however, the appraiser estimated that if the house were in good repair, it would have been worth $320,000. ¶4 Trujillo was charged with defrauding a secured creditor, theft of $20,000 or more, but less than $100,000, and criminal mischief of $20,000 or more, but less than $100,000. The jury found him not guilty of defrauding a secured creditor and guilty of theft and criminal mischief. ¶5 On appeal, Trujillo raises six contentions: (1) the trial court erred in rejecting defense-tendered jury instructions; (2) the trial court erred in allowing evidence of a prior foreclosure against Trujillo; (3) prosecutorial misconduct during direct examination of a witness and closing rebuttal argument warrants reversal; (4) the trial court imposed an illegal sentence of indeterminate probation; (5) the trial court erred in awarding the People costs of prosecution; and (6) an amendment to the theft statute applies to his conviction. We perceive no basis for reversal with respect to the first four contentions, but agree with Trujillo’s final two contentions. We therefore affirm the convictions and the sentence in part but vacate the sentence in part and remand with directions. 2  II. Jury Instructions ¶6 Trujillo asserts that the trial court erred in rejecting various jury instructions regarding his theory of the case. We disagree. A. Additional Facts ¶7 Throughout trial, the defense’s theory of the case was that Trujillo lacked the requisite intent to commit the charged offenses because he believed that the property he removed from the house belonged to him. The defense tendered five jury instructions related to this theory of the case. ¶8 Trujillo’s tendered jury instructions detailed property law concepts. For example, the first tendered instruction stated that “the person who has title to real property is still the owner of the property even if there is a lien or secured interest on the property.” Another tendered instruction defined “title,” “deed of trust,” and “holder of a certificate of purchase[].” One instruction described the lien theory detailed in section 38-35-117, C.R.S. 2017, and another instructed that title to property “does not vest with the purchaser until eight days after [a] foreclosure sale.” ¶9 The trial court declined to give these instructions as tendered. However, portions of the defense-tendered instructions were 3  included in a final definitional jury instruction. The final instructions defined “deed of trust” and stated that the title to property is transferred to the holder of the certificate of purchase eight days after a foreclosure sale. Though it rejected other portions of the defense-tendered instructions, the trial court permitted defense counsel to argue the issues raised in the instructions during closing argument. ¶ 10 The defense also tendered an instruction which the trial court modified and gave as a theory of the case instruction. That instruction stated, “Trujillo contends that the items removed from the home . . . were his; purchased by him and installed by him. . . . Trujillo conten[d]s that the items that he took and damaged were his sole property.” B. Standard of Review ¶ 11 We review jury instructions de novo to determine whether, as a whole, they accurately informed the jury of the governing law. Riley v. People, 266 P.3d 1089, 1092-93 (Colo. 2011). If the jury instructions properly inform the jury of the law, the district court has “broad discretion to determine the form and style of jury instructions.” Day v. Johnson, 255 P.3d 1064, 1067 (Colo. 2011). 4  Accordingly, we review a trial court’s decision concerning a proposed jury instruction for an abuse of discretion and will not disturb the ruling unless it is manifestly arbitrary, unreasonable, or unfair. Id. ¶ 12 When a defendant objects to the trial court’s ruling on a jury instruction, we review for nonconstitutional harmless error and will thus affirm if “there is not a reasonable probability that the error contributed to the defendant’s conviction.” People v. Garcia, 28 P.3d 340, 344 (Colo. 2001) (quoting Salcedo v. People, 999 P.2d 833, 841 (Colo. 2000)). C. Applicable Law ¶ 13 “[A]n instruction embodying a defendant’s theory of the case must be given by the trial court if the record contains any evidence to support the theory.” People v. Nunez, 841 P.2d 261, 264 (Colo. 1992). Moreover, a trial court has “an affirmative obligation” to work with counsel to correct a tendered theory of the case instruction “or to incorporate the substance of such in an instruction drafted by the court.” Id. at 265; see also People v. Tippett, 733 P.2d 1183, 1195 (Colo. 1987) (a trial court may refuse to give an instruction already embodied in other instructions). 5 ¶ 14 In considering whether a jury was adequately informed of a defendant’s theory of the case, a reviewing court can take into account whether defense counsel’s closing argument “fairly represented” the theory to the jury. People v. Dore, 997 P.2d 1214, 1222 (Colo. App. 1999). D. Analysis ¶ 15 Trujillo contends that the trial court abused its discretion in rejecting the tendered instructions. We disagree. ¶ 16 Trujillo asserts that the tendered instructions were essential because they communicated his theory of the case. However, the trial court instructed the jury on his theory of the case in an instruction that clearly stated that he believed the property he took from the house was “his sole property.” To the extent that the trial court had a duty to work with the defense in crafting a proper theory of defense instruction, we conclude that the trial court fulfilled that duty here by giving an alternative theory of the case instruction that encompassed Trujillo’s tendered instructions. See Nunez, 841 P.2d at 265 n.9. Moreover, the trial court specifically stated that defense counsel would be allowed to incorporate the 6  property law concepts into her closing argument, which defense counsel did. ¶ 17 Trujillo asserts that the instructions he tendered were accurate statements of property law. In contrast, the People argue that the instructions misstated the law as it applies in criminal prosecutions for theft and criminal mischief. Because we conclude that the trial court did not abuse its discretion in drafting a theory of defense instruction that encompassed the defense’s tendered instructions, we do not address whether the rejected instructions were accurate statements of the law. ¶ 18 The jury instructions, as a whole, “fairly and adequately cover[ed] the issues presented.” People v. Pahl, 169 P.3d 169, 183 (Colo. App. 2006). Thus, we conclude that the trial court did not abuse its discretion in rejecting in part the defense-tendered jury instructions. III. Evidence of Prior Foreclosure ¶ 19 Trujillo next asserts that the trial court erred in allowing the People to introduce evidence that another property of his had been foreclosed. We disagree. 7  A. Additional Facts ¶ 20 Before trial, Trujillo filed a motion to exclude evidence of other acts or res gestae evidence. Trujillo’s motion addressed several categories of other acts evidence, including evidence related to any “financial and/or legal problems” unrelated to the charged offenses. During a motions hearing, the People stated that they did not intend to introduce any other acts or res gestae evidence. In a written ruling, the trial court granted Trujillo’s motion to exclude evidence of his unrelated financial and legal problems “unless the prosecution fe[lt] that the ‘door ha[d] been opened.’” The trial court further ordered that, if the People felt Trujillo introduced evidence of his other financial and legal problems, the People could request a bench conference during trial. ¶ 21 On the first day of trial, defense counsel stated that she was withdrawing her motion to exclude other acts evidence insofar as it pertained to evidence of Trujillo’s bankruptcy proceedings. During her opening statement, defense counsel then mentioned those proceedings. ¶ 22 Later, the People called the bank’s former vice president as an expert witness. During direct examination, the prosecutor asked 8  the witness why the bank had declined to restructure Trujillo’s loan. The prosecutor also asked about Trujillo’s demeanor during interactions with the bank. Trujillo objected. After a bench conference, the trial court allowed the witness to testify on both matters. ¶ 23 Specifically, the witness testified that, during a conversation about restructuring the loan, Trujillo “seemed like he was very upset.” The witness recalled, “He got into [that] he had a piece of property that [another bank] had foreclosed on and it sounded like they had sold it for what [Trujillo] believed was a lot less, leaving him a large deficiency balance.” ¶ 24 During closing argument, the People alluded to the witness’s testimony and referred several times to Trujillo’s general animosity against banks. B. Standard of Review ¶ 25 We review a trial court’s decision to admit other acts or res gestae evidence for an abuse of discretion. People v. Jimenez, 217 P.3d 841, 846 (Colo. App. 2008). A court abuses its discretion if its decision to admit such evidence is manifestly arbitrary, unreasonable, or unfair. Id. 9 ¶ 26 We review a preserved claim of nonconstitutional error for harmless error, reversing only if any error “substantially influenced the verdict or affected the fairness of the trial proceedings.” Hagos v. People, 2012 CO 63, ¶ 12, 288 P.3d 116, 119 (quoting Tevlin v. People, 715 P.2d 338, 342 (Colo. 1986)). C. Applicable Law ¶ 27 Evidence is relevant if it has “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.” CRE 401. Generally speaking, “[t]he Colorado Rules of Evidence strongly favor the admission of relevant evidence.” People v. Brown, 2014 COA 155M-2, ¶ 22, 360 P.3d 167, 172. However, relevant evidence is nevertheless inadmissible when “its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury.” CRE 403. Similarly, evidence of “other crimes, wrongs, or acts” is inadmissible to prove a person’s character “in order to show that he acted in conformity therewith,” though it may be admissible for other purposes, including proving intent. CRE 404(b). 10 ¶ 28 “Res gestae is a theory of relevance which recognizes that certain evidence is relevant because of its unique relationship to the charged crime.” People v. Greenlee, 200 P.3d 363, 368 (Colo. 2009). However, “there is no need to consider an alternative theory of relevance, such as res gestae, where the evidence is admissible under general rules of relevancy.” Id. D. Analysis ¶ 29 Trujillo contends that the evidence of the prior foreclosure action portrayed him as a “serial defaulter” and was impermissible under CRE 404(b) and 403. The People assert that the evidence was admissible as “directly relevant” to Trujillo’s intent and motive. In the alternative, the People argue that the evidence was res gestae evidence. We agree with the People’s first argument that the evidence was admissible under CRE 401, and was not barred by CRE 403.1 1 During the bench conference, the trial court allowed the bank’s former vice president to testify after conducting an abbreviated CRE 404(b) analysis that did not specifically address the four-factor test set forth in People v. Spoto, 795 P.2d 1314, 1318 (Colo. 1990). The trial court did not admit the evidence under the res gestae doctrine. However, we can affirm a trial court’s evidentiary ruling on any ground supported by the record, “even if that ground was not 11 ¶ 30 The evidence of the prior foreclosure was probative of the interactions between Trujillo and the bank — it made it more probable that Trujillo had the requisite intent to commit theft. It was therefore relevant under CRE 401. Further, the risk of unfair prejudice did not substantially outweigh the probative value of the evidence, especially where the prior foreclosure was referenced only in passing and the details of that foreclosure were not revealed. Thus, the evidence was not barred by CRE 403. ¶ 31 Because we conclude that the evidence of the prior foreclosure was relevant under CRE 401 and admissible under CRE 403, we need not address whether the evidence was res gestae evidence or “other acts” evidence under CRE 404(b). See Greenlee, 200 P.3d at 368-69. Accordingly, we conclude that the trial court did not err in allowing the testimony concerning the prior foreclosure action. IV. Prosecutorial Misconduct ¶ 32 Trujillo argues that the prosecutor improperly commented on the district attorney’s screening process for bringing charges and articulated or considered by the trial court.” People v. Phillips, 2012 COA 176, ¶ 63, 315 P.3d 136, 153. 12  Trujillo’s right not to testify, and improperly denigrated defense counsel. We perceive no basis for reversal. A. Additional Facts ¶ 33 During redirect examination of one of the People’s expert witnesses, an attorney who worked at the bank, the prosecutor asked whether the bank played a role in charging Trujillo. The prosecutor asked if the witness himself made the decision to file a criminal case, to which the witness replied, “No.” The prosecutor then asked, “[W]ho is it, according to your understanding, that makes those decisions on whether a case gets filed criminally?” The witness responded, “A complaint’s made to a police department or sheriff’s department and they make that decision in conjunction with I believe you.” The prosecutor clarified that “you” meant the district attorney’s office. The defense did not object. ¶ 34 During rebuttal closing argument, the prosecutor said, Did you hear all that? [Defense counsel]’s talking about all of this stuff, about what Trujillo’s intent was. And then did you hear her towards the end what she did? She says, and correct – this part was correct of what she said. My job is to prove intent, right. That is my burden. And she’s absolutely right. The Defendant has every right to remain silent, 13  and he exercised that right and that is something that you cannot use against him. But it is completely ridiculous for [defense counsel] to get up here and say that [Trujillo] didn’t testify to what his intent was and then to go on and talk about what his intent actually was. We don’t know what his intent was because he never testified to that, which he has every right to do. But did you hear her? She’s up here saying his intent was this. ¶ 35 Trujillo objected on the basis that the prosecutor was denigrating defense counsel. The trial court sustained the objection as to the prosecutor’s tone, but overruled it as to content. The prosecutor then argued, “[I]f you go out and run somebody over and – and think that you had the right to do that, is that gonna be a legitimate defense by saying, well, I thought I could do that. I didn’t – nobody ever told me. Nobody put it in writing. When I bought my car, in the instruction manual, nothing said that about that. That’s preposterous.” Trujillo did not renew his objection. B. Standard of Review ¶ 36 In reviewing alleged prosecutorial misconduct, an appellate court engages in a two-step analysis. First, we determine whether the prosecutor’s conduct was improper based on the totality of the circumstances. Wend v. People, 235 P.3d 1089, 1096 (Colo. 2010). 14  Second, we determine whether any misconduct warrants reversal under the proper standard of review. Id. ¶ 37 When the alleged misconduct is objected to at trial and is of constitutional magnitude, we review for constitutional harmless error. Id. When the alleged misconduct is not of a constitutional magnitude, and when the defense objected at trial, we subject the prosecutorial misconduct to harmless error review. Id. at 1097. Such prosecutorial misconduct will be considered harmless “whenever there is no reasonable probability that it contributed to the defendant’s conviction.” Crider v. People, 186 P.3d 39, 42 (Colo. 2008). When the defense did not object to the misconduct, we review for plain error. Wend, 235 P.3d at 1097-98. C. Applicable Law ¶ 38 A prosecutor cannot comment on a “screening process” for charging cases “because it both hints that additional evidence supporting guilt exists and reveals the personal opinion of the prosecutor.” Domingo-Gomez v. People, 125 P.3d 1043, 1052 (Colo. 2005). It is also improper for a prosecutor to make remarks “for the obvious purpose of denigrating defense counsel.” People v. Jones, 832 P.2d 1036, 1038 (Colo. App. 1991). It is similarly improper for 15  a prosecutor to comment on a defendant’s decision not to testify. Griffin v. California, 380 U.S. 609, 614 (1965); see also People v. Martinez, 652 P.2d 174, 177 (Colo. App. 1981) (noting that a prosecutor’s comment on a defendant’s silence constitutes reversible error when “the prosecution argued that such silence constituted an implied admission of guilt”). ¶ 39 Nevertheless, “[a] prosecutor is allowed considerable latitude in responding to the argument made by opposing counsel.” People v. Ramirez, 997 P.2d 1200, 1211 (Colo. App. 1999), aff’d, 43 P.3d 611 (Colo. 2001). Further, “[a]lthough it is improper for a prosecutor to assert that opposing counsel knows that the accused’s case is not meritorious,” the prosecutor may permissibly argue “that the evidence in support of defendant’s innocence lacked substance.” Id. at 1211; see also People v. Samson, 2012 COA 167, ¶ 31, 302 P.3d 311, 317 (stating that a prosecutor may permissibly “comment on the absence of evidence to support a defendant’s contentions”). ¶ 40 Appellate courts consider several factors in determining whether prosecutorial misconduct was prejudicial, including the nature of the error, the pervasiveness of the misconduct, the 16  context, and the overall strength of the evidence supporting the conviction. People v. McBride, 228 P.3d 216, 225 (Colo. App. 2009); see also Crider, 186 P.3d at 43. For example, a reviewing court may consider whether proper jury instructions mitigated the prejudicial effect of prosecutorial misconduct. See People v. Castillo, 2014 COA 140M, ¶ 78, ___ P.3d ___, ___ (concluding prosecutor’s misstatements were harmless in light of instructions from the trial court and the defense’s closing argument) (cert. granted in part Nov. 23, 2015). D. Analysis ¶ 41 Trujillo contends that three instances of prosecutorial misconduct require reversal. We disagree. ¶ 42 Trujillo first contends that the prosecutor improperly referred to a screening process while examining the expert witness. We perceive no prosecutorial misconduct. The prosecutor here did not imply that he had engaged in a screening process to “weed out the weaker cases and, implicitly, that the State d[id] not consider this a weak case.” Domingo-Gomez, 125 P.3d at 1052 (concluding the prosecutor’s comment that “it takes a lot more than somebody saying that person did it” to bring charges was improper). Rather, 17  the prosecutor clarified that the bank did not bring criminal charges and that the witness himself did not stand to gain as a result of Trujillo’s conviction. The People assert, and we agree, that the prosecutor’s question merely elicited testimony to establish that the district attorney’s office was responsible for pursuing the criminal charges against Trujillo. ¶ 43 Second, Trujillo asserts that the prosecutor impermissibly commented on his decision not to testify. We disagree. Even if we assume the comment on Trujillo’s decision not to testify was improper, not every comment on a defendant’s choice not to testify requires reversal. See Martinez, 652 P.2d at 177. “The determining factor is whether the defendant’s silence was used by the prosecution as a means of creating an inference of guilt,” id., and we conclude that the prosecutor’s comments here did not raise such an inference. ¶ 44 Finally, Trujillo contends that the prosecutor impermissibly denigrated defense counsel and the defense’s theory of the case during rebuttal closing argument. We agree that the prosecutor improperly denigrated defense counsel and the defense’s theory of 18  the case when he characterized her arguments as “completely ridiculous” and “preposterous.” ¶ 45 However, we perceive no basis for reversal as a result of these improper remarks. The comments were limited to the People’s rebuttal closing argument. Moreover, significant evidence corroborated the jury’s finding of guilt — specifically, the undisputed evidence that Trujillo had removed an extensive amount of property from the house. Viewing the record as a whole, we cannot say that there was a “reasonable probability” that the prosecutor’s remarks denigrating defense counsel contributed to Trujillo’s convictions. See Crider, 186 P.3d at 42. Thus, we determine the error was harmless. ¶ 46 In sum, though we agree that the prosecutor improperly denigrated defense counsel, we perceive no basis for reversal. V. Indeterminate Probation ¶ 47 Trujillo contends that the trial court did not have the statutory authority to sentence him to indeterminate probation. We disagree. A. Additional Facts ¶ 48 During the sentencing hearing, the People requested that Trujillo be placed on a “long period of probation . . . somewhere in 19  the neighborhood of eight to ten years” because they anticipated that Trujillo would be ordered to pay substantial restitution.2 Trujillo requested unsupervised probation with a collections investigator monitoring his restitution payments. ¶ 49 The trial court imposed an “indefinite probation sentence” because of the substantial restitution that Trujillo was expected to owe. In imposing an indeterminate probation sentence, the trial court stated, “There is case law that talks about whether [indeterminate probation] is something that can or should be imposed and it’s certainly something that is allowed regardless of the type of conviction that has been entered.” ¶ 50 The mittimus states that the sentence imposed was a term of probation for seven years to life. B. Standard of Review ¶ 51 The People contend that we should not consider this claim because a sentence to probation is not ordinarily subject to 2 The trial court ultimately ordered Trujillo to pay $171,421.97 in restitution. Trujillo separately appealed that order, and a division of this court affirmed in part, reversed in part, and remanded for reconsideration. People v. Trujillo, (Colo. App. No. 14CA2486, Oct. 5, 2017) (not published pursuant to C.A.R. 35(e)). 20  appellate review. However, “where, as here, a defendant contends that ‘a court has exceeded its statutory authority’ in imposing a probationary sentence, appellate review is warranted.” People v. Jenkins, 2013 COA 76, ¶ 10, 305 P.3d 420, 423 (quoting People v. Rossman, 140 P.3d 172, 174 (Colo. App. 2006)). ¶ 52 “We review sentencing decisions that are within the statutory range for an abuse of discretion.” People v. Torrez, 2013 COA 37, ¶ 71, 316 P.3d 25, 37. However, where the defendant contends that a court exceeded its statutory sentencing authority, our inquiry involves statutory interpretation. Jenkins, ¶ 12, 305 P.3d at 423. We review such issues of statutory interpretation de novo. Id. C. Applicable Law ¶ 53 Under section 18-1.3-202(1)(a), C.R.S. 2017, a trial court “may grant the defendant probation for such period and upon such terms and conditions as it deems best.” Further, “[t]he length of probation shall be subject to the discretion of the court and may exceed the maximum period of incarceration authorized for the classification of the offense of which the defendant is convicted.” Id. ¶ 54 In Jenkins, a division of this court concluded that section 18- 1.3-202(1) “authorizes a trial court to impose an indeterminate term 21  of probation.” Jenkins, ¶ 38, 305 P.3d at 426. The Jenkins division bolstered its conclusion by looking to the plain language of the statute — which the division noted “contemplate[s] both determinate and indeterminate terms of probation” — and to the provision’s legislative history. Id. at ¶¶ 40, 42, 46, 305 P.3d at 426- 28. Finally, the division noted that section 18-1.3-202(1) “generally pertains to a broad class of cases, and it simply allows a trial court to elect an indeterminate term if it sentences an offender who has been convicted of a felony to probation.” Id. at ¶ 50, 305 P.3d at 428 (upholding probationary sentence of ten years to life); see also People v. Martinez, 844 P.2d 1203, 1206 (Colo. App. 1992) (concluding that a trial court has authority to impose a term of probation that exceeds the sentence to imprisonment in the statutory aggravated range for an offense). D. Analysis ¶ 55 Trujillo asserts that the trial court exceeded its statutory authority in imposing an indeterminate probationary sentence. We disagree. ¶ 56 Like the Jenkins division, we conclude that section 18-1.3- 202(1) gives a trial court the authority to sentence a defendant 22  convicted of a felony to an indefinite probationary period. Trujillo urges that the statute limits a trial court’s authority to impose an indeterminate probation sentence. Under Trujillo’s logic, a sentence to probation for 100 years is permissible, but an indeterminate probation sentence is outside the trial court’s statutory authority. The statute offers no basis for reaching this conclusion. ¶ 57 Trujillo asserts that Jenkins is distinguishable because that case concerned whether a defendant convicted of a sex offense not falling under the supervision scheme of the Colorado Sex Offender Lifetime Supervision Act of 1998 (SOLSA), see §§ 18-1.3-1001 to -1012, C.R.S. 2017, could nevertheless be sentenced to indeterminate probation. Jenkins, ¶ 1, 305 P.3d at 422. Trujillo contends that Jenkins was limited to the particular circumstances of that case, and does not widely apply to all offenses and defendants. However, the Jenkins division made clear that section 18-1.3-202(1) “establishes a general rule as far as the possibility of an indeterminate probationary term for felonies” and “authorizes a trial court to impose an indeterminate term of probation.” Id. at ¶¶ 38, 50, 305 P.3d at 426, 428. In fact, Jenkins explicitly rejected the argument that a sentence of indeterminate probation could be 23  imposed only in sex offense cases subject to SOLSA. Id. at ¶¶ 49- 50, 305 P.3d at 428. Thus, Trujillo’s argument that Jenkins is limited to sex offenses is unavailing. ¶ 58 In sum, we conclude that the trial court did not exceed its statutory authority in imposing the probation sentence here. VI. Costs of Prosecution ¶ 59 Trujillo next asserts that the trial court erred in awarding the full costs of prosecution requested by the People without making a finding on whether any portion of the costs was attributable to the charge on which he was acquitted. We agree. A. Additional Facts ¶ 60 Before sentencing, the People moved for reimbursement of the costs of prosecution pursuant to section 18-1.3-701, C.R.S. 2017. The People requested $768.70. Trujillo opposed the motion on the basis that the People bore responsibility for the costs incurred to prove the defrauding a secured creditor charge, of which Trujillo was acquitted. ¶ 61 During the sentencing hearing, the trial court awarded the requested costs of prosecution, ordering Trujillo to pay $768.70. 24  B. Standard of Review ¶ 62 The trial court, in its discretion, may assess reasonable and necessary costs of prosecution against a convicted defendant. See § 18-1.3-701(2)(j.5). Thus, we review an assessment of costs of prosecution for an abuse of discretion, reversing if the trial court’s determination is manifestly arbitrary, unreasonable, or unfair, People v. Palomo, 272 P.3d 1106, 1110 (Colo. App. 2011), or if the trial court misapplied the law, People v. Jefferson, 2017 CO 35, ¶ 25, 393 P.3d 493, 499. C. Applicable Law ¶ 63 Under section 16-18-101(1), C.R.S. 2017, the state bears the costs of prosecution when a defendant is acquitted. Such costs may include witness fees, mileage, lodging expenses, transportation costs, and other reasonable and necessary costs that directly result from prosecuting the defendant. § 18-1.3-701(2); see also People v. Sinovcic, 2013 COA 38, ¶¶ 15-16, 304 P.3d 1176, 1179. If a defendant is convicted of fewer than all of the charged counts, the court may assess only those costs attributable to the counts for which the defendant was convicted, if an allocation is practicable. Palomo, 272 P.3d at 1112. 25  D. Analysis ¶ 64 Trujillo asserts that the trial court erred in not making a finding as to whether some portion of the requested costs of prosecution were allocable to the acquitted charge. We agree. ¶ 65 As Trujillo concedes, it is possible that the costs cannot be allocated between the charge on which he was acquitted and the two charges on which he was convicted. However, the trial court did not find that such an allocation was impracticable. Because the trial court was required to consider whether some portion of the requested costs was practicably attributable to the acquitted charge, the trial court abused its discretion. See DeBella v. People, 233 P.3d 664, 667 (Colo. 2010) (failure to exercise discretion constitutes an abuse of the court’s discretion). ¶ 66 Accordingly, we vacate the order awarding the People costs of prosecution and remand for the trial court to make appropriate findings of fact and “assess only those costs that are related to the prosecution of the . . . counts of which [Trujillo] was convicted, to the extent an allocation is practicable.” Palomo, 272 P.3d at 1113. 26  VII. Amendment to Theft Statute ¶ 67 Trujillo contends that he should have benefited from an amendment to the theft statute reclassifying theft between $20,000 and $100,000 as a class 4 felony. We agree. A. Additional Facts ¶ 68 The General Assembly amended the theft statute on June 5, 2013. See Ch. 373, sec. 1, § 18-4-401, 2013 Colo. Sess. Laws 2196. Under the amended statute, theft between $20,000 and $100,000 constitutes a class 4 felony. See § 18-4-401(2)(h), C.R.S. 2017. Prior to the amendment, theft over $20,000 constituted a class 3 felony. § 18-4-401(2)(d), C.R.S. 2011. ¶ 69 Trujillo was charged with theft of $20,000 or more in April 2011. He was convicted in October 2013 and sentenced in December 2013. His theft conviction was recorded on the mittimus as a class 3 felony. B. Standard of Review ¶ 70 The People assert that, because Trujillo did not make this argument before the trial court, we should review only for plain error. However, the division in People v. Stellabotte rejected this argument. 2016 COA 106, ¶ 42, ___ P.3d ___, ___ (noting that plain 27  error review was inappropriate because “a defendant may raise a claim at any time that his or her sentence was not authorized by law”) (cert. granted Feb. 6, 2017). Following Stellabotte, we review the legality of the sentence de novo. Id. at ¶ 4, ___ P.3d at ___. C. Applicable Law ¶ 71 In determining whether to apply amendments to legislation, we first look to the plain language of the statute. People v. Summers, 208 P.3d 251, 253-54 (Colo. 2009). If a statute explicitly states that it applies only to offenses committed after the effective date, it must be applied accordingly. See People v. McCoy, 764 P.2d 1171, 1174 (Colo. 1988). ¶ 72 As a general rule, “[a] statute is presumed to be prospective in its operation.” § 2-4-202, C.R.S. 2017. However, if a statute is silent as to whether it applies only prospectively, a defendant may seek retroactive application if he or she benefits from a significant change in the law. § 18-1-410(1)(f)(I), C.R.S. 2017; see also People v. Thornton, 187 Colo. 202, 203, 529 P.2d 628, 628 (1974) (allowing defendant to seek relief on direct appeal under statute). ¶ 73 In Stellabotte, a division of this court concluded that the amendatory theft legislation “applies retroactively to cases pending 28  in the trial court when the amendment was enacted.” Stellabotte, ¶ 45, ___ P.3d at ___; People v. Patton, 2016 COA 187, ¶ 32, ___ P.3d ___, ___; see also People v. Patton, (Colo. App. No. 14CA2359, Aug. 11, 2016) (not published pursuant to C.A.R. 35(e)) (cert. granted Feb. 6, 2017). D. Analysis ¶ 74 Trujillo contends that the amendment to the theft statute requires that we vacate his sentence and remand for the trial court to enter his theft conviction as a class 4 felony. We agree. ¶ 75 As the division noted in Stellabotte, the theft amendment does not explicitly state that it is either retroactive or prospective. Stellabotte, ¶ 45, ___ P.3d at ___. In the face of this legislative silence, the division held that a defendant who committed theft prior to the statutory amendment but was not convicted until after its passage was entitled to the benefit retroactively. See id. at ¶¶ 39, 45, ___ P.3d at ___. The same is true here. ¶ 76 Trujillo was charged with theft before the statute was amended, but was not convicted or sentenced until after the General Assembly lowered the classification for theft between 29  $20,000 and $100,000.3 Thus, like the defendant in Stellabotte, Trujillo is entitled to the benefit of the amendment. As a result, we vacate the sentence for the theft conviction and remand for the conviction to be entered as a class 4 felony. ¶ 77 The partial dissent looks to several statutory provisions in support of its conclusion that Trujillo is not entitled to the benefit of the amendatory legislation. First, the partial dissent cites section 2-4-202, which states the general presumption that statutes apply prospectively. However, as the division noted in Stellabotte, section 18-1-410 is a specific exception to the general rule expressed in section 2-4-202. Stellabotte, ¶ 47 n.4, ___ P.3d at ___ n.4. We agree with that analysis. Thus, the general presumption that statutes apply prospectively does not apply here where Trujillo seeks the benefit of a “significant change in the law, . . . allowing in 3 Trujillo asserts that the theft was between $20,000 and $100,000 based on testimony from trial. The People do not contest the value of the stolen property in this case. We therefore assume that Trujillo’s offense properly fell within the value range set forth in section 18-4-401(2)(h), C.R.S. 2017. 30  the interests of justice retroactive application of the changed legal standard.”4 § 18-1-410(1)(f)(I). ¶ 78 The partial dissent also invokes section 2-4-303, C.R.S. 2017, in support of its conclusion. Section 2-4-303 states: The repeal, revision, amendment, or consolidation of any statute or part of a statute or section or part of a section of any statute shall not have the effect to release, extinguish, alter, modify, or change in whole or in part any penalty, forfeiture, or liability, either civil or criminal, which shall have been incurred under such statute, unless the repealing, revising, amending, or consolidating act so expressly provides. ¶ 79 However, the supreme court has noted that the “general saving” provision codified in this statute is not applicable to criminal cases; instead, the court noted in dictum that it “has 4 The partial dissent also asserts that section 18-1-410(1)(f)(I), C.R.S. 2017, does not provide any relief to Trujillo because that provision requires that “there has been significant change in the law, applied to the [defendant’s] conviction or sentence.” The partial dissent asserts that the phrase “applied to” requires that the legislation expressly state that it applies retroactively. We disagree with that interpretation, and believe that our view finds authority in supreme court case law. See People v. Thomas, 185 Colo. 395, 397, 525 P.2d 1136, 1137 (1974) (noting that “[t]he legislature intended the changed legal standards to apply wherever constitutionally permissible” but making no mention of whether the amendatory legislation reclassifying attempted second degree burglary explicitly stated that it applied retroactively). 31  consistently adhered to the principle . . . that a defendant is entitled to the benefits of amendatory legislation when relief is sought before finality has attached to the judgment of conviction.” Noe v. Dolan, 197 Colo. 32, 36 n.3, 589 P.2d 483, 486 n.3 (1979). ¶ 80 In People v. Boyd, a division of the court of appeals concluded that section 2-4-303 did not prevent the retroactive effect of an amendatory constitutional provision. 2015 COA 109, ¶ 27, 395 P.3d 1128, 1134, aff’d, 2017 CO 2, 387 P.3d 755.5 The division noted the supreme court’s language in Noe. Id. at ¶ 28, 395 P.3d at 1134. To the extent that other supreme court cases included contrary statements, the Boyd division concluded that such statements were dicta and that the supreme court had not overruled or disapproved of either Noe or People v. Thomas, 185 Colo. 395, 398, 525 P.2d 1136, 1138 (1974) (holding that “amendatory legislation mitigating the penalties for crimes should be applied to any case which has not received final judgment”). 5 The supreme court in Boyd affirmed the Court of Appeals decision on different grounds, concluding that the marijuana criminal offense statute had been rendered inoperative by Amendment 64. Neither the majority nor the dissent in Boyd cited section 2-4-303, C.R.S. 2017. 32  Boyd, ¶¶ 29-30, 395 P.3d at 1134-35. Finally, the Boyd division concluded that section 18-1-410(1)(f)(I) controls over section 2-4- 303 because the former sets forth a specific exception to the latter, which codifies a “general rule[] of construction regarding prospective effect for amendatory legislation.” Id. at ¶¶ 31-32, 395 P.3d at 1135. We agree with the Boyd division’s analysis and therefore do not perceive section 2-4-303 as a bar to the relief Trujillo seeks. ¶ 81 In making its statutory arguments, the partial dissent relies on the plain meaning of both section 2-4-303 and section 18-1- 410(1)(f)(I). However, as discussed, the supreme court has not given either provision its plain meaning. Despite express reference in section 2-4-303 to civil and criminal penalties, the supreme court has indicated that the provision does not apply to criminal cases. Noe, 197 Colo. at 36 n.3, 589 P.2d at 486 n.3. Similarly, while section 18-1-410(1)(f)(I) by its express terms applies to defendants seeking postconviction relief, the supreme court has held that the statute also extends to defendants seeking relief on direct appeal. Thornton, 187 Colo. at 203, 529 P.2d at 628. In light of the 33  supreme court’s interpretation of these statutes, we cannot give them the meanings that the partial dissent ascribes to them. ¶ 82 Finally, the partial dissent also relies on Riley v. People, in which the supreme court noted that it has “emphasized that a defendant is not entitled to the ameliorative effects of amendatory legislation if the General Assembly has not clearly indicated its intent to require such retroactive application.” 828 P.2d 254, 258 (Colo. 1992). However, we do not consider this statement to have the controlling effect the partial dissent gives it. In Riley, the defendant committed a crime in April 1988 and sought relief under two sentencing provisions that expressly stated they applied to acts “committed on or after” July 1, 1988. Id. at 255-56. The Riley court held the defendant there was not entitled to relief because applying the statutes retroactively would require the court to ignore the “clear legislative determination” that the amended sentencing provisions would apply only to acts after that date. Id. at 257. ¶ 83 Thus, Riley is readily distinguishable from the present case, where the amendments to the theft statute do not expressly provide an effective date, and the language relied on by the partial dissent is dicta. Accord McCoy, 764 P.2d at 1174 (noting that, where 34  legislation expressly stated it applied to acts committed on or after its effective date, a “defendant does not receive any ameliorative benefit” because “retroactive application of the amendatory legislation is clearly not intended by its own terms”); People v. Macias, 631 P.2d 584, 587 (Colo. 1981) (same). ¶ 84 Thus, we conclude, in accordance with Stellabotte, that Trujillo should receive the benefit of the amendment to the theft statute reclassifying theft between $20,000 and $100,000 as a class 4 felony. See Stellabotte, ¶ 40, ___ P.3d at ___. VIII. Conclusion ¶ 85 Accordingly, the judgment of conviction is affirmed. The sentence is affirmed in part and vacated in part, and the case is remanded for further proceedings consistent with the views expressed in this opinion. JUDGE RICHMAN concurs. JUDGE FURMAN concurs in part and dissents in part. 35  JUDGE FURMAN, concurring in part and dissenting in part. ¶ 86 I respectfully dissent from the majority’s opinion only as to the effect of the 2013 amendments to the theft statute. I conclude that the 2013 amendments to the theft statute do not apply retroactively to Trujillo’s case. I reach this conclusion for several reasons. ¶ 87 First, the General Assembly has made it clear that a “statute is presumed to be prospective in its operation.” § 2-4-202, C.R.S. 2017. The 2013 amendments to the theft statute are silent as to whether they apply prospectively or retroactively. Therefore, I presume that the 2013 amendments are prospective in operation and do not apply to Trujillo’s offense, which occurred before 2013. See id. ¶ 88 Second, an amendment to a criminal statute does not change the penalty for crimes already committed under the statute unless the amendatory legislation expressly provides for such a change. See § 2-4-303, C.R.S. 2017. Section 2-4-303 provides, in relevant part: The . . . amendment . . . of any statute or part of a statute . . . shall not have the effect to release, extinguish, alter, modify, or change in whole or in part any penalty, forfeiture, or liability, either civil or criminal, which shall 36  have been incurred under such statute, unless the . . . amending . . . act so expressly provides, and such statute or part of a statute . . . so . . . amended . . . shall be treated and held as still remaining in force for the purpose of sustaining any and all proper actions, suits, proceedings, and prosecutions, criminal as well as civil, for the enforcement of such penalty, forfeiture, or liability, as well as for the purpose of sustaining any judgment, decree, or order which can or may be rendered, entered, or made in such actions, suits, proceedings, or prosecutions imposing, inflicting, or declaring such penalty, forfeiture, or liability. Because the 2013 amendments to the theft statute do not expressly provide that they apply retroactively, and Trujillo committed his crime before 2013, he is liable for theft as it was defined when he committed the offense. See id. ¶ 89 Third, in Riley v. People, 828 P.2d 254, 258 (Colo. 1992), our supreme court “emphasized that a defendant is not entitled to the ameliorative effects of amendatory legislation if the General Assembly has not clearly indicated its intent to require such retroactive application.” Id. I consider this statement by the supreme court about its own jurisprudence on this issue to be controlling. 37 ¶ 90 Fourth, section 18-1-410(1)(f)(I), C.R.S. 2017, does not allow Trujillo, on direct appeal, to seek retroactive application of the 2013 amendments to his case. Section 18-1-410(1)(f)(I) allows a defendant to seek retroactive application of a “significant change in the law, applied to” a defendant’s “conviction or sentence.” I believe that the phrase “applied to” reflects the General Assembly’s intent that, for amendatory legislation to apply retroactively to a defendant’s conviction or sentence, the legislation must state that it applies retroactively. Thus, because, as noted, the 2013 amendments do not state that they apply retroactively to Trujillo’s conviction and sentence, he may not seek retroactive application under section 18-1-410(1)(f)(I). ¶ 91 Finally, and with all due respect, I decline to follow People v. Stellabotte, 2016 COA 106 (cert. granted Feb. 6, 2017). Indeed, I agree with Judge Dailey’s dissent in Stellabotte. See id. at ¶¶ 62-70 (Dailey, J., concurring in part and dissenting in part). 38 

477 F.2d 598 Zukowskiv.State Bar Grievance Board, State Bar ofMichigan 73-1072 UNITED STATES COURT OF APPEALS Sixth Circuit 4/18/73 1 E.D.Mich. AFFIRMED

ARMED SERVICES BOARD OF CONTRACT APPEALS Appeal of -- ) ) _ ) ASBCA N°' 60315 ) ) Under Contract No. HTC71 l-l4-D-R033 APPEARANCE FOR THE APPELLANT: _ President APPEARANCES FOR THE GOVERNMENT: Jeffrey P. Hildebrant, Esq. Air Force Deputy Chief Trial Attomey Lt Col Mark E. Allen, USAF Jason R. Smith, Esq. Trial Attomeys OPINlON BY ADMINISTRATIVE JUDGE D’ALESSANDRIS ON APPELLANT’S MOTION FOR RECONSIDERAT]ON Appellant _ (-) has timely filed a motion for reconsideration of our 21 November 2016 decision granting the govemment’s motion for summary judgment and denying this appeal. -, ASBCA No. 60315, 1(»1 BCA 11 36,569. Familiariiy with our decision is presumed In deciding a motion for reconsideration, we examine whether the motion is based upon newly discovered evidence, mistakes in our findings of fact, or errors of law. Zulco International, lnc., ASBCA No. 55441, 08-1 BCA 1| 33,799 at 167,319. A motion for reconsideration does not provide the moving party the opportunity to reargue its position or to advance arguments that properly should have been presented in an earlier proceeding See Dixon v. Shz`nseki, 741 F.3d 1367, 1378 (Fed. Cir. 2014). We do not grant motions for reconsideration absent a compelling reason. J.F. Taylor, Inc., ASBCA Nos. 56105, 56322, 12-2 BCA 11 35,125 at 172,453. - argues in its motion for reconsideration that the government breached the contract by violating PAR 52.233-3, PROTEST AFTER AWARD (AUG 1996) for failing to cancel the stop-work order or terminating the contract for convenience after the post-award protest period (app. mot. at l, 8). In our decision, we addressed this same argument and stated that “the suspension of work and termination for convenience clauses provide no relief when no work was ordered under an [indefinite-delivery, indefinite-quantity] contract and the contractor has been paid the minimum contract value.” _, 16-1 BCA 11 36,569 ar 178,109. -, in its reply, acknowledges that part of our decision cited above, but argues that the government should still pay costs which it incurred after the suspension of work was allegedly lifted (app. reply br. at 7). However, all of the costs incurred were considered in our decision and found to be generated by tasks which was already expected to do under the terms of the contract. 16-1 BCA il 36,569 at 178,110-11. 3 We conclude - has not shown any compelling reason to modify our original decision, as - merely reargues its original position relying on the same facts. CONCLUSION For the reasons stated above, -’s motion for reconsideration is denied. Dated: 15 March 2017 DAVID D’ALESSANDRIS Administrative Judge Armed Services Board of Contract Appeals Iconcur% I concur MARK N. STEMPLER / RICHARD SHACKLEFORD Administrative Judge Administrative Judge Acting Chairman Vice Chairman Armed Services Board Armed Services Board of Contract Appeals of Contract Appeals I certify that the foregoing is a true copy of the Opinion and Decision of the Armed services Board of Contract Appeals in ASBCA Ne. 60315, Appeai ef- _, rendered in conformance with the Board’s Charter. Dated: JEFFREY D. GARDIN Recorder, Armed Services Board of Contract Appeals

United States Court of Appeals For the Eighth Circuit ___________________________ No. 12-3842 ___________________________ Barbara Hager lllllllllllllllllllll Plaintiff - Appellee v. Arkansas Department of Health; Namvar Zohoori, individually and in his official capacity lllllllllllllllllllll Defendants - Appellants ____________ Appeal from United States District Court for the Eastern District of Arkansas - Little Rock ____________ Submitted: September 24, 2013 Filed: November 14, 2013 ____________ Before LOKEN, COLLOTON, and BENTON, Circuit Judges. ____________ BENTON, Circuit Judge. Barbara Hager was fired from the Arkansas Department of Health by her supervisor, Dr. Namvar Zohoori. Hager sued Dr. Zohoori and the Department for statutory and constitutional violations. The district court granted, in part, their motion to dismiss. They appeal. Having jurisdiction under 28 U.S.C. § 1291 over Dr. Zohoori’s appeal, this court reverses and remands.  I. Hager claims that in May 2011, her branch chief and supervisor, Dr. Zohoori, instructed her to cancel a doctor’s appointment (necessary, she says, to prevent cataracts) in order to discuss a report. When she refused, she alleges Dr. Zohoori became irritated and falsely claimed she was insubordinate and disrespectful. Four days later, he terminated her without explanation. Hager sued Dr. Zohoori, in his individual and official capacities, and the Department alleging violations of Title VII of the Civil Rights Act of 1964, the Equal Protection and Due Process Clauses of the Constitution (§ 1983 claim), the Age Discrimination and Employment Act, the Rehabilitation Act, and the Family and Medical Leave Act (FMLA). Dr. Zohoori and the Department moved to dismiss for failure to state a claim and sovereign immunity. The district court denied their motion in part, allowing three claims against Dr. Zohoori in his individual capacity (§ 1983 gender discrimination, FMLA “interference,” and FMLA “retaliation”) and two claims against the Department (Title VII and Rehabilitation Act). They appeal. II. Hager objects to this court’s jurisdiction over Dr. Zohoori’s appeal, arguing it turns on issues of factual sufficiency. A denial of qualified immunity is an appealable “final decision” only “to the extent it turns on an issue of law.” Mitchell v. Forsyth, 472 U.S. 511, 530 (1985). Hager relies on cases reviewing a denial of summary judgment based on qualified immunity. See Johnson v. Jones, 515 U.S. 304, 313-14 (1995) (holding that where a district court’s summary judgment order on qualified immunity turns on the issue of evidence sufficiency—“which facts a party may, or -2- may not, be able to prove at trial”—the order is not appealable); Powell v. Johnson, 405 F.3d 652, 654-55 (8th Cir. 2005). In Ashcroft v. Iqbal, the Supreme Court determined the jurisdiction of a court of appeals in a case like Hager’s—denial of a motion to dismiss based on qualified immunity: As a general matter, the collateral-order doctrine may have expanded beyond the limits dictated by its internal logic and the strict application of the criteria set out in Cohen. But the applicability of the doctrine in the context of qualified-immunity claims is well established; and this Court has been careful to say that a district court’s order rejecting qualified immunity at the motion-to-dismiss stage of a proceeding is a “final decision” within the meaning of § 1291. Behrens, 516 U.S., at 307, 116 S. Ct. 834. Applying these principles, we conclude that the Court of Appeals had jurisdiction to hear petitioners’ appeal. The District Court’s order denying petitioners’ motion to dismiss turned on an issue of law and rejected the defense of qualified immunity. It was therefore a final decision “subject to immediate appeal.” Ibid. Respondent says that “a qualified immunity appeal based solely on the complaint’s failure to state a claim, and not on the ultimate issues relevant to the qualified immunity defense itself, is not a proper subject of interlocutory jurisdiction.” Brief for Respondent Iqbal 15 (hereinafter Iqbal Brief). In other words, respondent contends the Court of Appeals had jurisdiction to determine whether his complaint avers a clearly established constitutional violation but that it lacked jurisdiction to pass on the sufficiency of his pleadings. Our opinions, however, make clear that appellate jurisdiction is not so strictly confined. Iqbal, 556 U.S. 662, 672-73 (2009). -3-  Here, Dr. Zohoori challenges the sufficiency of Hager’s pleadings to state § 1983, FMLA “interference,” and FMLA “retaliation” claims. This is an issue of law over which this court has jurisdiction. See id. at 672-74; Bradford v. Huckabee, 394 F.3d 1012, 1015 (8th Cir. 2005). See also Rondigo, L.L.C. v. Township of Richmond, 641 F.3d 673, 679 (6th Cir. 2011). III. This court reviews de novo the denial of a motion to dismiss on the basis of qualified immunity. Bradford, 394 F.3d at 1015. A complaint must “state a claim to relief that is plausible on its face.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007). Under Federal Rule of Civil Procedure 12(b)(6), the factual allegations in the complaint are accepted as true and viewed most favorably to the plaintiff. Gross v. Weber, 186 F.3d 1089, 1090 (8th Cir. 1999). Courts must not presume the truth of legal conclusions couched as factual allegations. Papasan v. Allain, 478 U.S. 265, 286 (1986). Courts should dismiss complaints based on “labels and conclusions, and a formulaic recitation of the elements of a cause of action.” Twombly, 550 U.S. at 555. Under the doctrine of qualified immunity, a court must dismiss a complaint against a government official in his individual capacity that fails to state a claim for violation of “clearly established statutory or constitutional rights of which a reasonable person would have known.” Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982). See also Iqbal, 556 U.S. at 685; Mitchell, 472 U.S. at 526 (“Unless the plaintiff’s allegations state a claim of violation of clearly established law, a defendant pleading qualified immunity is entitled to dismissal before the commencement of discovery.”). A court considers whether the plaintiff has stated a plausible claim for violation of a constitutional or statutory right and whether the right was clearly established at the time of the alleged infraction. Powell, 405 F.3d at 654-55. See Pearson v. Callahan, 555 U.S. 223, 236 (2009) (“[D]istrict courts and the courts of -4- appeals should be permitted to exercise their sound discretion in deciding which of the two prongs of the qualified immunity analysis should be addressed first in light of the circumstances in the particular case at hand.”). A. The § 1983 claim against Dr. Zohoori individually (Count I) alleges that Hager was “a victim of gender discrimination . . . and has been denied her right of equal protection of the law and due process of the law.” Specifically, she contends she “was discharged under circumstances summarily [sic] situated nondisabled males . . . were not.” “[T]he Equal Protection Clause requires that the government treat such similarly situated persons alike.” Keevan v. Smith, 100 F.3d 644, 648 (8th Cir. 1996), citing City of Cleburne v. Cleburne Living Ctr., Inc., 473 U.S. 432, 439 (1985); Klinger v. Department of Corrs., 31 F.3d 727, 731 (8th Cir. 1994). Absent evidence of direct discrimination, courts apply the McDonnell Douglas burden- shifting analysis to claims of employment discrimination under the Equal Protection Clause. Lockridge v. Board of Trs. of Univ. of Arkansas, 315 F.3d 1005, 1010 (8th Cir. 2003) (en banc). Under McDonnell Douglas, a prima facie case of discrimination requires that a plaintiff prove: “(1) membership in a protected group; (2) qualification for the job in question; (3) an adverse employment action; and (4) circumstances that support an inference of discrimination.” Swierkiewicz v. Sorema N. A., 534 U.S. 506, 510 (2002), citing McDonnell Douglas Corp. v. Green, 411 U.S. 792, 801 (1973). Dr. Zohoori argues that Hager does not state a § 1983 claim for gender discrimination because her allegation—that she “was discharged under circumstances summarily [sic] situated nondisabled males, younger people, or those that did not require leave or accommodation were not”—is a legal conclusion. Hager contends -5- her “similarly situated” allegation is sufficient because McDonnell Douglas is “an evidentiary standard, not a pleading requirement.” Swierkiewicz, 534 U.S. at 510; Ring v. First Interstate Mortg., 984 F.2d 924, 926 (8th Cir. 1993). Under Swierkiewicz, a plaintiff need not plead facts establishing a prima facie case of discrimination under McDonnell Douglas in order to defeat a motion to dismiss. Swierkiewicz, 534 U.S. at 510-11. The complaint “must contain only ‘a short and plain statement of the claim showing the pleader is entitled to relief.’” Id. at 508. “Such a statement must simply ‘give the defendant fair notice of what the plaintiff’s claim is and the grounds upon which it rests.’” Id. at 512, citing Conley v. Gibson, 355 U.S. 41, 47 (1957). In Twombly, the Supreme Court stated that Swierkiewicz did not change the law of pleading. Twombly, 550 U.S. at 569. Rather, courts need “not require heightened fact pleading of specifics, but only enough facts to state a claim to relief that is plausible on its face.” Id. at 570. “[L]egal conclusions can provide the framework of a complaint” but “must be supported by factual allegations,” Iqbal, 556 U.S. at 679, that “raise a right to relief above the speculative level.” Twombly, 550 U.S. at 555. Thus, this court applies “the ordinary rules for assessing the sufficiency of a complaint,” Swierkiewicz, 534 U.S. at 511, to consider whether Hager states a § 1983 claim for gender discrimination. See Twombly, 550 U.S. at 570. Hager relies primarily on Swierkiewicz. However, her complaint has far fewer factual allegations than the complaint there. In Swierkiewicz, the complaint for age and nationality discrimination alleged: the plaintiff was demoted and replaced by a younger employee of the employer’s nationality; the replacement was inexperienced; in promoting the younger, inexperienced employee, the employer wanted to “energize” the department; the employer excluded and isolated plaintiff from business decisions and meetings; plaintiff sent a memo outlining his grievances and tried to -6- meet with the employer to discuss his discontent; and plaintiff was fired. Swierkiewicz, 534 U.S. at 508-09. Hager makes only two conclusory allegations of gender discrimination: (1) she “is a victim of gender discrimination;” and (2) she “was discharged under circumstances summarily [sic] situated nondisabled males . . . were not.” She does not allege any gender-related comments or conduct before her termination. See Rondigo, 641 F.3d at 682 (granting qualified immunity in part because the complaint contained no allegations of gender-based discriminatory actions). She also does not allege facts showing that similarly situated employees were treated differently. See Coleman v. Maryland Court of Appeals, 626 F.3d 187, 190-91 (4th Cir. 2010) (plaintiff’s conclusory allegation that he “was treated differently as a result of his race than whites”—even where plaintiff identified an alleged comparator—was insufficient to sustain a Title VII claim because no factual allegations plausibly suggested the comparator was similarly situated). See also Keevan, 100 F.3d at 648 (“To establish a gender-based claim under the Equal Protection Clause, the appellants must, as a threshold matter, demonstrate that they have been treated differently by a state actor than others who are similarly situated simply because appellants belong to a particular protected class.”). In sum, Hager does not state a § 1983 claim for gender discrimination. Hager’s allegation that she is the victim of gender discrimination fails to give Dr. Zohoori fair notice of the claim and the grounds upon which it rests. See Swierkiewicz, 534 U.S. at 512. Hager’s conclusory assertion that she was discharged under circumstances similarly situated men were not imports legal language couched as a factual allegation and fails to raise a right to relief above the speculative level. See Twombly, 550 U.S. at 555. The district court erred in denying Dr. Zohoori’s motion to dismiss the § 1983 claim. -7-  B. Hager alleges a claim for “interfering with exercise of Plaintiff’s rights under the FMLA.” Under the categorization in Pulczinski v. Trinity Structural Towers, Inc., 691 F.3d 996 (8th Cir. 2012), Hager’s “interference” claim is an entitlement claim. Pulczinski, 691 F.3d at 1005-06. “The FMLA entitles an employee to twelve workweeks of leave during any twelve-month period if he or she has a ‘serious health condition that makes the employee unable to perform the functions of the position of such employee.’” Sisk v. Picture People, Inc., 669 F.3d 896, 899 (8th Cir. 2012), quoting Wierman v. Casey’s Gen. Stores, 638 F.3d 984, 999 (8th Cir. 2011), quoting 29 U.S.C. § 2612(a)(1)(D). An FMLA entitlement claim arises when an employer denies or interferes with an employee’s substantive FMLA rights. Scobey v. Nucor Steel-Arkansas, 580 F.3d 781, 785 (8th Cir. 2009). An employee seeking FMLA leave must give the employer notice of the need for leave and indicate when she anticipates returning to work. Id. at 785-86. See also Rynders v. Williams, 650 F.3d 1188, 1196-97 (8th Cir. 2011) (plaintiff must prove she gave timely notice to defendant himself). Although the notice need not specifically invoke the FMLA, an employee “must provide information to suggest that [her] health condition could be serious.” Scobey, 580 F.3d at 786. When the leave is foreseeable, the employee must give at least thirty days notice. 29 C.F.R. § 825.302. When the leave is not foreseeable, “an employee must provide notice to the employer as soon as practicable under the facts and circumstances of the particular case.” 29 C.F.R. § 825.303. Hager alleges that she “saw a physician regularly for her cataracts,” but “[o]n May 13, 2011, [Dr. Zohoori] instructed her to cancel the doctor’s appointment so she and he could discuss a report.” She also avers that she explained “the reason she needed to go to the doctor,” that “she could not cancel the appointment,” and why she could not cancel. These allegations do not state an FMLA entitlement claim. While -8- Hager alleges that she provided information suggesting a serious health condition, she does not allege that she provided timely notice. Hager’s pleadings at best suggest Dr. Zohoori was aware of her leave request immediately prior to the appointment. They do not assert that she provided notice within thirty days or “as soon as practicable under the circumstances.” Nor do they assert that she indicated when she would return. See generally Bosley v. Cargill Meat Solutions Corp., 705 F.3d 777, 780 (8th Cir. 2013) (there is a “rigorous notice standard for employees seeking to use FMLA leave for absences”). The district court erred in denying Dr. Zohoori’s motion to dismiss the FMLA entitlement claim. C. Hager also alleges a claim for “retaliating against her.” Under the categorization in Pulczinski, Hager’s “retaliation” claim is a discrimination claim. Pulczinski, 691 F.3d at 1006. In a discrimination claim, “the employee alleges that the employer discriminated against her for exercising her FMLA rights.” Sisk, 669 F.3d at 899, quoting Wierman, 638 F.3d at 999. Absent direct evidence, an FMLA discrimination claim is analyzed under the McDonnell Douglas burden-shifting framework. Sisk, 669 F.3d at 899. The plaintiff must “show that she exercised rights afforded by the Act, that she suffered an adverse employment action, and that there was a causal connection between her exercise of rights and the adverse employment action.” Phillips v. Mathews, 547 F.3d 905, 912 (8th Cir. 2008), quoting Smith v. Allen Health Sys., Inc., 302 F.3d 827, 832 (8th Cir. 2002). This is an evidentiary, not a pleading, standard. Swierkiewicz, 534 U.S. at 510. Hager alleges that Dr. Zohoori discriminated against her—firing her—because she exercised her FMLA rights—tried to take leave for a doctor’s appointment, which was “necessary to insure that [her] condition did not develop into a serious health -9- condition, cataracts.” If Hager had properly alleged notice, these allegations would be sufficient. See Wehrley v. American Family Mut. Ins. Co., 513 Fed. Appx. 733, 742 (10th Cir. 2013) (“Three other circuits have concluded that notifying an employer of the intent to take FMLA leave is protected activity. . . . We are persuaded to follow these circuits.”), citing Pereda v. Brookdale Senior Living Communities, Inc., 666 F.3d 1269, 1276 (11th Cir. 2012); Erdman v. Nationwide Ins. Co., 582 F.3d 500, 509 (3d Cir. 2009); Skrjanc v. Great Lakes Power Serv. Co., 272 F.3d 309, 314 (6th Cir. 2001). However, because Hager failed to plead notice of intent to take FMLA leave, and that she was qualified for that leave, she has not sufficiently alleged that she exercised FMLA rights. See Nicholson v. Pulte Homes Corp., 690 F.3d 819, 828 (7th Cir. 2012) (“The district court held that because Nicholson did not provide sufficient notice of the need for FMLA-qualifying leave, she never engaged in any activity protected by the FMLA. For the reasons we have explained, we agree.”). The district court erred in denying Dr. Zohoori’s motion to dismiss the FMLA discrimination claim. IV. Although Hager did not move to amend the complaint in the district court—where the relevant pleadings were found sufficient—she requests remand to allow an amended complaint for any claims insufficiently pled. Hager should be no worse off, and no better off, than she would have been if the district court had granted the motion to dismiss. See Horras v. American Capital Strategies, Ltd., 729 F.3d 798, 804-05 (8th Cir. 2013) (evaluating standards applicable to post-judgment motions). This court remands for the district court to consider whether to allow Hager to amend her pleadings. See Zenith Radio Corp. v. Hazeltine Research, Inc., 401 U.S. 321, 330 (1971) (granting leave to amend is within the discretion of the district court). -10-  V. The Arkansas Department of Health requests that this court exercise its pendent appellate jurisdiction to review the district court’s partial denial of its motion to dismiss. See Langford v. Norris, 614 F.3d 445, 457 (8th Cir. 2010) (“[W]hen an interlocutory appeal is before us . . . as to the defense of qualified immunity, we have jurisdiction also to decide closely related issues of law, i.e., pendent appellate claims.”) (internal quotation marks omitted), quoting Kincade v. City of Blue Springs, Mo., 64 F.3d 389, 394 (8th Cir. 1995). The Department maintains that Hager’s claims against it are inextricably intertwined with her claims against Dr. Zohoori. The Department reasons that if Hager’s “similarly situated” allegation does not sustain her § 1983 and FMLA discrimination claims against Dr. Zohoori, it cannot sustain her Title VII and Rehabilitation Act claims against the Department. “[A] pendent appellate claim can be regarded as inextricably intertwined with a properly reviewable claim on collateral appeal only if the pendent claim is coterminous with, or subsumed in, the claim before the court on interlocutory appeal—that is, when the appellate resolution of the collateral appeal necessarily resolves the pendent claim as well.” Kincade, 64 F.3d at 394, quoting Moore v. City of Wynnewood, 57 F.3d 924, 930 (10th Cir. 1995). See also Lockridge, 315 F.3d at 1012. Here, resolution of the “similarly situated” issue may illuminate the Department’s argument that Hager failed to state a claim against it. However, the Department’s claims are not coterminous with or subsumed in Dr. Zohoori’s claims. Hager sues under different statutes, and the Department cannot invoke qualified immunity. This court does not have jurisdiction to hear the Department’s appeal. ******* -11-  The denial of Dr. Zohoori’s motion to dismiss the § 1983 claim, the FMLA entitlement claim, and the FMLA discrimination claim is reversed. This case is remanded for proceedings consistent with this opinion. ______________________________ -12- 

58 Cal.App.3d 439 (1976) 129 Cal. Rptr. 797 L. GENE ALLARD, Plaintiff, Cross-defendant and Respondent, v. CHURCH OF SCIENTOLOGY OF CALIFORNIA, Defendant, Cross-complainant and Appellant. Docket No. 45562. Court of Appeals of California, Second District, Division Two. May 18, 1976. *443 COUNSEL Morgan, Wenzel & McNicholas, John P. McNicholas, Gerald E. Agnew, Jr., and Charles B. O'Reilly for Plaintiff, Cross-defendant and Respondent. Levine & Krom, Meldon E. Levine, Murchison, Cumming, Baker & Velpmen, Murchison, Cumming & Baker, Michael B. Lawler, Tobias C. Tolzmann and Joel Kreiner for Defendant, Cross-complainant and Appellant. OPINION BEACH, J. L. Gene Allard sued the Church of Scientology for malicious prosecution. Defendant cross-complained for conversion. A jury verdict and judgment were entered for Allard on the complaint for $50,000 in compensatory damages and $250,000 in punitive damages. Judgment was entered for Allard and against the Church of Scientology on the cross-complaint. Defendant-cross complainant appeals from the judgment. FACTS: The evidence in the instant case is very conflicting. We relate those facts supporting the successful party and disregard the contrary showing. (Nestle v. City of Santa Monica, 6 Cal.3d 920, 925-926 [101 Cal. Rptr. 568, 496 P.2d 480].) In March 1969, L. Gene Allard became involved with the Church of Scientology in Texas. He joined Sea Org in Los Angeles and was sent to San Diego for training. While there, he signed a billion-year contract agreeing to do anything to help Scientology and to help clear the planet of the "reactive people." During this period he learned about written policy directives that were the "policy" of the church, emanating from L. Ron Hubbard, the founder of the Church of Scientology.[1] After training on the ship, respondent was assigned to the Advanced Organization in Los Angeles, where he became the director of disbursements. He later became the Flag Banking Officer. *444 Alan Boughton, Flag Banking Officer International, was respondent's superior. Only respondent and Boughton knew the combination to the safe kept in respondent's office. Respondent handled foreign currency, American cash, and various travelers' checks as part of his job. In May or June 1969, respondent told Boughton that he wanted to leave the church. Boughton asked him to reconsider. Respondent wrote a memo and later a note; he spoke to the various executive officers. They told him that the only way he could get out of Sea Org was to go through "auditing" and to get direct permission from L. Ron Hubbard. Respondent wrote to Hubbard. A chaplain of the church came to see him. Lawrence Krieger, the highest ranking justice official of the church in California, told respondent that if he left without permission, he would be fair game and "You know we'll come and find you and we'll bring you back, and we'll deal with you in whatever way is necessary." On the night of June 7 or early morning of June 8, 1969, respondent went to his office at the Church of Scientology and took several documents from the safe. These documents were taken by him to the Internal Revenue Service in Kansas City; he used them to allege improper changes in the records of the church. He denies that any Swiss francs were in the safe that night or that he took such Swiss francs. Furthermore, respondent denies the allegation that he stole various travelers' checks from the safe. He admitted that some travelers' checks had his signature as an endorsement, but maintains that he deposited those checks into an open account of the Church of Scientology. There is independent evidence that tends to corroborate that statement. Respondent, having borrowed his roommate's car, drove to the airport and flew to Kansas City, where he turned over the documents to the Internal Revenue Service. Respondent was arrested in Florida upon a charge of grand theft. Boughton had called the Los Angeles Police Department to report that $23,000 in Swiss francs was missing. Respondent was arrested in Florida; he waived extradition and was in jail for 21 days. Eventually, the charge was dismissed. The deputy district attorney in Los Angeles recommended a dismissal in the interests of justice.[2] *445 CONTENTIONS ON APPEAL: 1. Respondent's trial counsel engaged in flagrant misconduct throughout the proceedings below and thereby deprived appellant of a fair trial. 2. The verdict below was reached as a result of (a) counsel's ascription to appellant of a religious belief and practices it did not have and (b) the distortion and disparagement of its religious character, and was not based upon the merits of this case. To allow a judgment thereby achieved to stand would constitute a violation of appellant's free exercise of religion. 3. Respondent failed to prove that appellant maliciously prosecuted him and therefore the judgment notwithstanding the verdict should have been granted. 4. The refusal of the trial court to ask or permit voir dire questions of prospective jurors pertaining to their religious prejudices or attitudes deprived appellant of a fair trial. 5. It was prejudicial error to direct the jury, in its assessment of the malicious prosecution claim, to disregard evidence that respondent stole appellant's Australian and American Express travelers' checks. 6. The order of the trial court in denying to appellant discovery of the factual basis for the obtaining of a dismissal by the district attorney of the criminal case People v. Allard was an abuse of discretion and a new trial should be granted and proper discovery permitted. 7. Respondent presented insufficient evidence to support the award of $50,000 in compensatory damages which must have been awarded because of prejudice against appellant. 8. Respondent failed to establish corporate direction or ratification and also failed to establish knowing falsity and is therefore not entitled to any punitive damages. 9. Even if the award of punitive damages was proper in this case, the size of the instant reward, which would deprive appellant church of more *446 than 40 percent of its net worth, is grossly excessive on the facts of this case. 10. There was lack of proper instruction regarding probable cause.[3] DISCUSSION: 1. There was no prejudicial misconduct by respondent's trial counsel, and appellant was not deprived of a fair trial. Appellant claims that it was denied a fair trial through the statements, questioning, and introduction of certain evidence by respondent's trial counsel. Love v. Wolf, 226 Cal. App.2d 378 [38 Cal. Rptr. 183], is cited as authority. We have reviewed the entire record and find appellant's contentions to be without merit. Several of counsel's individual statements and questions were inappropriate. However, there often were no objections by counsel for appellant where an objection and subsequent admonition would have cured any defect; or there was an objection, and the trial court judiciously admonished the jury to disregard the comment. Except for these minor and infrequent aberrations, the record reveals an exceptionally well-conducted and dispassionate trial based on the evidence presented. As in Stevens v. Parke, Davis & Co., 9 Cal.3d 51, 72 [107 Cal. Rptr. 45, 507 P.2d 653], a motion for a new trial was made, based in part upon the alleged misconduct of opposing counsel at trial. (1) What was said in Stevens applies to the instant case. "`A trial judge is in a better position than an appellate court to determine whether a verdict resulted wholly, or in part, from the asserted misconduct of counsel and his conclusion in the matter will not be disturbed unless, under all the circumstances, it is plainly wrong.' [Citation.] From our review of the instant record, we agree with the trial judge's assessment of the conduct of plaintiff's counsel and for the reasons stated above, we are of the opinion that defendant has failed to demonstrate prejudicial misconduct on the part of such counsel." (Stevens v. Parke, Davis & Co., supra, 9 Cal.3d at p. 72.) 2. The procedure and verdict below does not constitute a violation of appellant's First Amendment free exercise of religion. *447 (2) Appellant contends that various references to practices of the Church of Scientology were not supported by the evidence, were not legally relevant, and were unduly prejudicial. The claim is made that the trial became one of determining the validity of a religion rather than the commission of a tort. The references to which appellant now objects were to such practices as "E-meters," tin cans used as E-meters, the creation of religious doctrine purportedly to "get" dissidents, and insinuations that the Church of Scientology was a great money making business rather than a religion. The principal issue in this trial was one of credibility. If one believed defendant's witnesses, then there was indeed conversion by respondent. However, the opposite result, that reached by the jury, would naturally follow if one believed the evidence introduced by respondent. Appellant repeatedly argues that the introduction of the policy statements of the church was prejudicial error. However, those policy statements went directly to the issue of credibility. Scientologists were allowed to trick, sue, lie to, or destroy "enemies." (Exhibit 1.) If, as he claims, respondent was considered to be an enemy, that policy was indeed relevant to the issues of this case. That evidence well supports the jury's implied conclusion that respondent had not taken the property of the church, that he had merely attempted to leave the church with the documents for the Internal Revenue Service, and that those witnesses who were Scientologists or had been Scientologists were following the policy of the church and lying to, suing and attempting to destroy respondent. Evidence of such policy statements were damaging to appellant, but they were entirely relevant. They were not prejudicial. A party whose reprehensible acts are the cause of harm to another and the reason for the lawsuit by the other cannot be heard to complain that its conduct is so bad that it should not be disclosed. The relevance of appellant's conduct far outweighs any claimed prejudice.[4] We find the introduction of evidence of the policy statements and other peripheral mention of practices of the Church of Scientology not to be error. In the few instances where mention of religious practices may have been slightly less germane than the policy statements regarding fair game, they were nonetheless relevant and there was no prejudice to appellant by the introduction of such evidence. *448 3. The trial court properly denied the motion for judgment notwithstanding the verdict. (3) Appellant claimed that it had probable cause to file suit against respondent. The claim is made that even if Alan Boughton did take the checks from the safe, knowledge of that act should not be imputed to appellant church. Based on the policy statements of appellant that were introduced in evidence, a jury could infer that Boughton was within the scope of his employment when he stole the francs from the safe or lied about respondent's alleged theft. Inferences can be drawn that the church, through its agents, was carrying out its own policy of fair game in its actions against respondent. Given that view of the evidence, which as a reviewing court we must accept, there is substantial evidence proving that appellant maliciously prosecuted respondent. Therefore, the trial court did not err in denying the motion for the judgment notwithstanding the verdict. 4. The trial court performed proper voir dire of prospective jurors. (4) Appellant claims that the trial court refused to ask or permit voir dire questions of prospective jurors pertaining to their religious prejudices or attitudes. The record does not so indicate. Each juror was asked if he or she had any belief or feeling toward any of the parties that might be regarded as a bias or prejudice for or against any of them. Each juror was also asked if he or she had ever heard of the Church of Scientology. If the juror answered affirmatively, he or she was further questioned as to the extent of knowledge regarding Scientology and whether such knowledge would hinder the rendering of an impartial decision. One juror was excused when she explained that her husband is a clergyman and that she knows a couple that was split over the Church of Scientology. (5) The trial court's thorough questioning served the purpose of voir dire, which is to select a fair and impartial jury, not to educate the jurors or to determine the exercise of peremptory challenges. (Rousseau v. West Coast House Movers, 256 Cal. App.2d 878, 882 [64 Cal. Rptr. 655].) 5. It was not prejudicial error to direct the jury, in its assessment of the malicious prosecution claim, to disregard evidence that respondent stole appellant's Australian and American Express travelers' checks. *449 (6) Appellant submits that evidence of respondent's purported theft of the Australian and American Express travelers' checks should have been admitted as to the issue of malicious prosecution as well as the cross-complaint as to conversion. If there were any error in this regard, it could not possibly be prejudicial since the jury found for respondent on the cross-complaint. It is evident that the jury did not believe that respondent stole the travelers' checks; therefore, there could be no prejudice to appellant by the court's ruling. 6. Appellant suffered no prejudice by the trial court's denial of discovery of the factual basis for obtaining of the dismissal by the district attorney. (7) Prior to trial, appellant apparently sought to discover the reasons underlying the dismissal of the criminal charges against respondent. This was relevant to the instant case since one of the elements of a cause of action for malicious prosecution is that the criminal prosecution against the plaintiff shall have been favorably terminated. (Jaffe v. Stone, 18 Cal.2d 146 [114 P.2d 335, 135 A.L.R. 775].) Whether or not the lower court was justified in making such an order, the denial of discovery along these lines could not be prejudicial. During the trial, counsel for all parties stipulated that the criminal proceedings against Allard were terminated in his favor by a dismissal by a judge of that court upon the recommendation of the district attorney. In addition, there was a hearing outside the presence of the jury in which the trial court inquired of the deputy district attorney as to the reasons for the dismissal. It was apparent at that time that the prospective witnesses for the Church of Scientology were considered to be evasive. There was no prejudice to appellant since the deputy district attorney was available at trial. Earlier knowledge of the information produced would not have helped defendant. We find no prejudicial error in the denial of this discovery motion. 7. The award of $50,000 compensatory damages was proper. Appellant contends that based upon the evidence presented at trial, the compensatory damage award is excessive. In addition, appellant contends that the trial court erred in not allowing appellant to introduce evidence of respondent's prior bad reputation. *450 (8a) There was some discussion at trial as to whether respondent was going to claim damaged reputation as part of general damages. The trial court's initial reaction was to allow evidence only of distress or emotional disturbance; in return for no evidence of damaged reputation, appellant would not be able to introduce evidence of prior bad reputation. The court, however, relying on the case of Clay v. Lagiss, 143 Cal. App.2d 441 [299 P.2d 1025], held that lack of damage to reputation is not admissible. Therefore, respondent was allowed to claim damage to reputation without allowing appellant to introduce evidence of his prior bad reputation. In matters of slander that are libelous per se, for example the charging of a crime, general damages have been presumed as a matter of law. (Douglas v. Janis, 43 Cal. App.3d 931, 940 [4] [118 Cal. Rptr. 280], citing Clay v. Lagiss, supra, 143 Cal. App.2d at p. 448. Compare Gertz v. Robert Welch, Inc., 418 U.S. 323 [41 L.Ed.2d 789, 94 S.Ct. 2997].)[5] (9) Damages in malicious prosecution actions are similar to those in defamation. Therefore, damage to one's reputation can be presumed from a charge, such as that in the instant case that a person committed the crime of theft. (8b) In any event, as the trial court in the instant case noted, there was no offer of proof regarding respondent's prior bad reputation; any refusal to allow possible evidence on that subject has not been shown to be error, much less prejudicial error. (10) Appellant further contends that the amount of compensatory damages awarded was excessive and that the jury was improperly instructed regarding compensatory damages. The following modified version of BAJI Nos. 14.00 and 14.13 was given: "If, under the court's instructions, you find that plaintiff is entitled to a verdict against defendant, you must then award plaintiff damages in an amount that will reasonably compensate him for each of the following elements of loss or harm, which in this case are presumed to flow from *451 the defendant's conduct without any proof of such harm or loss: damage to reputation, humiliation and emotional distress. "No definite standard or method of calculation is prescribed by law to fix reasonable compensation for these presumed elements of damage. Nor is the opinion of any witness required as to the amount of such reasonable compensation. Furthermore, the argument of counsel as to the amount of damages is not evidence of reasonable compensation. In making an award for damage to reputation, humiliation and emotional distress, you shall exercise your authority with calm and reasonable judgment, and the damages you find shall be just and reasonable." The following instruction was requested by defendant and was rejected by the trial court: "The amount of compensatory damages should compensate plaintiff for actual injury suffered. The law will not put the plaintiff in a better position than he would be in had the wrong not been done." Accompanying the request for that motion is a citation to Staub v. Muller, 7 Cal.2d 221 [60 P.2d 283], and Basin Oil Co. v. Baash-Ross Tool Co., 125 Cal. App.2d 578 [271 P.2d 122]. The Supreme Court has recognized that "Damages potentially recoverable in a malicious prosecution action are substantial. They include out-of-pocket expenditures, such as attorney's and other legal fees ...; business losses ...; general harm to reputation, social standing and credit ...; mental and bodily harm ...; and exemplary damages where malice is shown...." (Babb v. Superior Court, 3 Cal.3d 841, 848, fn. 4 [92 Cal. Rptr. 179, 479 P.2d 379].) While these damages are compensable, it is the determination of the damages by the jury with which we are concerned. Appellant seems to contend that the jury must have actual evidence of the damages suffered and the monetary amount thereof. "`The determination of the jury on the issue of damages is conclusive on appeal unless the amount thereof is so grossly excessive that it can be reasonably imputed solely to passion or prejudice in the jury. [Citations.]'" (Douglas v. Janis, supra, 43 Cal. App.3d at p. 940.) The presumed damage to respondent's reputation from an unfounded charge of theft, along with imprisonment for 21 days, and the mental and emotional anguish that must have followed are such that we cannot say that the jury's finding of $50,000 in compensatory damages is unjustified. *452 That amount does not alone demonstrate that it was the result of passion and prejudice. 8. Respondent is entitled to punitive damages. (11) Appellant cites the general rule that although an employer may be held liable for an employee's tort under the doctrine of respondeat superior, ordinarily he cannot be made to pay punitive damages where he neither authorized nor ratified the act. (4 Witkin, Summary of Cal. Law. (8th ed.) § 855, p. 3147.)[6] Appellant claims that the Church of Scientology, which is the corporate defendant herein, never either authorized or ratified the malicious prosecution. The finding of authorization may be based on many grounds in the instant case. For example, the fair game policy itself was initiated by L. Ron Hubbard, the founder and chief official in the church. (Exhibit 1.) It was an official authorization to treat "enemies" in the manner in which respondent herein was treated by the Church of Scientology. Furthermore, all the officials of the church to whom respondent relayed his desire to leave were important managerial employees of the corporation. (See 4 Witkin, Summary of Cal. Law (8th ed.) supra, § 857, p. 3148.) The trier of fact certainly could have found authorization by the corporation of the act involved herein. 9. The award of punitive damages. (12) Any party whose tenets include lying and cheating in order to attack its "enemies" deserves the results of the risk which such conduct entails. On the other hand, this conduct may have so enraged the jury that the award of punitive damages may have been more the result of *453 feelings of animosity, rather than a dispassionate determination of an amount necessary to assess defendant in order to deter it from similar conduct in the future. In our view the disparity between the compensatory damages ($50,000) and the punitive damages ($250,000) suggests that animosity was the deciding factor. Our reading of the decisional authority compels us to conclude that we should reduce the punitive damages. We find $50,000 to be a reasonable amount to which the punitive damages should be reduced. We perceive this duty, and have so modified the punitive damages award not with any belief that a reviewing court more ably may perform it.[7] (13) Simply stated the decisional authority seems to indicate that the reviewing court should examine punitive damages and where necessary modify the amount in order to do justice. (Cunningham v. Simpson, 1 Cal.3d 301 [81 Cal. Rptr. 855, 461 P.2d 39]; Forte v. Nolfi, 25 Cal. App.3d 656 [102 Cal. Rptr. 455]; Shroeder v. Auto Driveaway Company, 11 Cal.3d 908 [114 Cal. Rptr. 622, 523 P.2d 662]; Livesey v. Stock, 208 Cal. 315, 322 [281 P. 70].) 10. Instruction on probable cause. Appellant requested an instruction stating: "Where it is proven that a judge has had a preliminary hearing and determined that the facts and evidence show probable cause to believe the plaintiff guilty of the offense charged therefore, ordering the plaintiff to answer a criminal complaint, this is prima facie evidence of the existence of probable cause." The trial court gave the following instruction: "The fact that plaintiff was held to answer the charge of grand theft after a preliminary hearing is evidence tending to show that the initiator of the charge had probable cause. This fact is to be considered by you along with all the other evidence tending to show probable cause or the lack thereof."[8] Appellant claimed for the first time in its reply brief that the trial court's lack of proper instruction regarding probable cause was prejudicial error. Since this issue was raised for the first time in appellant's reply brief, we decline to review the issue.[9] *454 The judgment is modified by reducing the award of punitive damages only, from $250,000 to the sum of $50,000. As modified the judgment is in all other respects affirmed. Costs on appeal are awarded to respondent Allard. Roth, P.J., and Fleming, J., concurred. A petition for a rehearing was denied June 17, 1976, and the petitions of both parties for a hearing by the Supreme Court were denied July 15, 1976. NOTES [1] One such policy, to be enforced against "enemies" or "suppressive persons" was that formerly titled "fair game." That person "[m]ay be deprived of property or injured by any means by any Scientologist without any discipline of the Scientologist. May be tricked, sued or lied to or destroyed." (Exhibit 1.) [2] Leonard J. Shaffer, the deputy district attorney, testified outside the presence of the jury that members of the church were evasive in answering his questions. He testified that the reasons for the dismissal were set forth in his recommendation; the dismissal was not part of a plea bargain or procedural or jurisdictional issue. [3] This issue is raised for the first time in appellant's reply brief. [4] The trial court gave appellant almost the entire trial within which to produce evidence that the fair game policy had been repealed. Appellant failed to do so, and the trial court thereafter permitted the admission of Exhibit 1 into evidence. [5] The Supreme Court held in Gertz v. Robert Welch, Inc., supra, 418 U.S. 323, 349 [41 L.Ed.2d 789, 810], an action for defamation, that "the States may not permit recovery of presumed or punitive damages, at least when liability is not based on a showing of knowledge of falsity or reckless disregard for the truth." (Italics added.) The instant case is distinguishable from Gertz. Initially, the interests protected by a suit for malicious prosecution include misuse of the judicial system itself; a party should not be able to claim First Amendment protection maliciously to prosecute another person. Secondly, the jury in the instant case must have found "knowledge of falsity or reckless disregard for the truth" in order to award punitive damages herein. Therefore, even under Gertz, a finding of presumed damages is not unconstitutional. [6] We again note that Gertz v. Robert Welch, Inc., supra, precludes the award of punitive damages in defamation actions "at least when liability is not based on a showing of knowledge of falsity or reckless disregard for the truth." The facts of the instant case fall within that categorization, so a finding of punitive damages was proper. Moreover, as we noted above, an egregious case of malicious prosecution subjects the judicial system itself to abuse, thereby interfering with the constitutional rights of all litigants. Punitive damages may therefore be more easily justified in cases of malicious prosecution than in cases of defamation. The societal interests competing with First Amendment considerations are more compelling in the former case. [7] See dissent in Cunningham v. Simpson, 1 Cal.3d 301 [81 Cal. Rptr. 855, 461 P.2d 39]. [8] This instruction was given on the court's own motion. [9] We note that given the circumstances of the instant case, the juror could have easily been misled by the requested instruction. If the evidence showed that the agents and employees of appellant were lying, then the preliminary hearing at which they also testified would not be valid. While the jurors may of course consider that the magistrate at the preliminary hearing found probable cause, that should be in no way conclusive in the jury's determination of probable cause.

798 So.2d 646 (2001) Charles SHARRIEF and Millie Sharrief as personal representatives of Quanetta M. Buchannon, deceased v. Rebecca GERLACH, M.D. 1991732. Supreme Court of Alabama. April 20, 2001. *648 Sherryl Snodgrass Caffey, Huntsville, for appellants. John S. Key and Jenny L. McLeroy of Eyster, Key, Tubb, Weaver & Roth, L.L.P., Decatur, for appellee. HARWOOD, Justice. Charles Sharrief and Millie Sharrief, as administrators of the estate of Quanetta M. Buchannon, deceased, sued Dr. Rebecca Gerlach, Dr. Charles Giddens, and Jackson County Hospital, seeking compensatory and punitive damages on allegations of a wrongful death, in the defendants' providing medical care to Buchannon. The trial court entered an "Order of Referral to Mediation." During mediation, the plaintiffs' settled their claims against Dr. Giddens and Jackson County Hospital; the court dismissed those defendants pursuant to a motion and joint stipulation for *649 dismissal. Although he was no longer a party to this case, Dr. Giddens was later a witness at trial. Trial of the plaintiffs' claims against Dr. Gerlach began on September 27, 1999. When Dr. Gerlach was called by the plaintiffs as their first witness, she ran out of the courtroom. The trial judge offered the plaintiffs the option of continuing the trial in Dr. Gerlach's absence, but they declined to do so. The trial court then declared a mistrial. The plaintiffs then made a motion to tax costs to the defendant, but the trial court denied the motion, on the rationale that the plaintiffs had refused to proceed with the trial in the defendant's absence. A second trial began on January 24, 2000. On January 27, 2000, the jury returned a verdict for Dr. Gerlach. The trial court entered a judgment based on that verdict. The plaintiffs, without first informing the trial court, subpoenaed the jurors for depositions, based on a suspicion that juror misconduct had occurred during the trial. When the trial court became aware of the subpoenas, it entered an order quashing them. The plaintiffs then filed a "Motion to Alter, Amend, or Vacate" the order quashing the subpoenas, or in the alternative, a "Motion to Take Depositions of Jurors" and a "Motion for Enlargement of Time." The plaintiffs also filed a "Motion to Vacate the Judgment," a "Motion for a New Trial," a "Motion for Post Judgment Hearing," and a "Renewal of Motion to Take Deposition Testimony of Jurors." In response, Dr. Gerlach filed a "Motion for Protective Order" and a "Motion to Strike Affidavits of Mr. Sharrief and Jurors." The trial court heard arguments on all the motions at the same time; it denied all of the plaintiffs' motions, and granted all of Dr. Gerlach's motions. The plaintiffs appealed. They make a number of disparate arguments; we summarize them into four basic arguments: (1) that the trial court erred in denying their motion to vacate the judgment, or, in the alternative, for a new trial, because, they contend, the jury verdict was plainly and palpably wrong; (2) that the trial court committed reversible error by denying the plaintiffs' posttrial motions concerning discovery regarding jury deliberations; (3) that the trial court committed reversible errors during the trial; and (4) that the trial court erred in denying their motion to tax costs to Dr. Gerlach after the first trial had ended.[1] The record shows that Buchannon, age 19, was brought to the Jackson County Hospital emergency room at 9:05 p.m. on July 2, 1993. She had been suffering from vomiting, nausea, and diarrhea for three days. Dr. Gerlach, an emergency-room physician, obtained Buchannon's medical history and examined her. Buchannon's medical history showed that she had delivered a child by cesarean section on June 27, 1993, at Hellen Keller Hospital in Muscle Shoals. The baby had been delivered by Dr. Jenny Gapultoes. (Dr. Gapultoes and Hellen Keller Hospital were not involved in this case.) Dr. Gerlach's examination indicated that Buchannon was suffering from endometritis, an infection of the uterus, resulting from the cesarean section performed five days earlier. Dr. Gerlach then telephoned Dr. Giddens, the obstetrician-gynecologist ("Ob/Gyn") on call for Jackson County Hospital that *650 night, to discuss the case. Dr. Giddens had also been Buchannon's Ob/Gyn up until two weeks before the delivery, but because Dr. Gapultoes had delivered Buchannon's baby, Dr. Giddens was no longer considered her attending physician. Dr. Gerlach informed Dr. Giddens of Buchannon's condition and of her test results, informed him that Buchannon had requested that he be present, and asked him to come in on Buchannon's behalf. Dr. Giddens declined to come to the emergency room. Dr. Gerlach then advised Dr. Giddens that her recommended course of treatment would include a shot of Rocephin,[2] 1 gram, by intramuscular injection, and a prescription of Doxycycline.[3] Dr. Giddens concurred with the recommended course of treatment. Dr. Gerlach further proposed that Buchannon be released and that she follow up with an Ob/Gyn within a few days. Dr. Gerlach then asked Dr. Giddens to do a "follow-up" examination with Buchannon in 2-4 days, but he declined that request, recommending instead that Buchannon be instructed to return to the physician who had delivered her baby. Dr. Giddens then approved Dr. Gerlach's recommendations for treatment, and that treatment was administered. Buchannon was released from the hospital at 10:45 p.m. The next morning, Buchannon became unconscious and unresponsive; she was rushed by ambulance to Scottsboro Medical Center. On July 3, 1993 at 7:17 a.m., Buchannon was pronounced dead. The official cause of her death was septic shock due to endometritis due to cesarean section. I. The Verdict and the Denial of the Plaintiffs' Postjudgment Motions We first consider whether the trial court erred in denying the plaintiffs' motion for a new trial. The plaintiffs based that motion on the argument that the jury's verdict was not supported by the evidence. "[W]hen the evidence meets the `sufficiency' test, jury verdicts are presumed correct, and this presumption is strengthened by the trial court's denial of a motion for new trial. Therefore, a judgment based upon a jury verdict and sustained by the denial of a post-judgment motion for a new trial, will not be reversed on a weight-of-the-evidence ground unless it is `plainly and palpably' wrong. Ashbee v. Brock, 510 So.2d 214 (Ala.1987). See, also, Jawad v. Granade, 497 So.2d 471 (Ala.1986)." Alpine Bay Resorts, Inc. v. Wyatt, 539 So.2d 160, 162-63 (Ala.1988). Thus, this Court will reverse the trial court's denial of the plaintiffs' motion for a new trial only if this Court concludes that the verdict was plainly and palpably wrong. Generally, in order to prove liability in a medical-malpractice case, the plaintiff must show (1) the appropriate standard of care for the treatment supplied by the defendant health-care provider, (2) a deviation from that standard of care by the defendant, and (3) a proximate causal connection between the injury alleged by the plaintiff and the defendant's breach of the standard of care. Looney v. Davis, 721 So.2d 152 (Ala.1998). The plaintiffs presented the testimony of Dr. William E. Garrett, assistant professor of surgery at Meharry Medical College. Dr. Garrett testified that Dr. Gerlach's examination and treatment of Buchannon was below the standard of care. However, Dr. Sherry *651 Squires, associate medical director of the emergency department at Huntsville Hospital, testifying as an expert on behalf of Dr. Gerlach, stated that Dr. Gerlach's treatment of Buchannon met the standard of care. The resolution of conflicts in the evidence rests solely with the trier of fact, in this case, the jury. Jones v. Baltazar, 658 So.2d 420 (Ala.1995); James v. Woolley, 523 So.2d 110, 112 (Ala.1988). The record contains substantial evidence to support the jury verdict; thus, we must conclude that the verdict was not plainly and palpably wrong. Stokes v. Long-Lewis Ford, Inc., 549 So.2d 51, 52 (Ala.1989); Merrell v. Joe Bullard Oldsmobile, Inc., 529 So.2d 943, 946 (Ala.1988). The trial court did not err in denying the plaintiffs' motion for a new trial. II. Posttrial Motions Concerning Discovery Regarding Jury Deliberations We next consider the plaintiffs' argument that the trial court erred in denying their posttrial motions seeking discovery regarding the jury's deliberations. These motions included a motion to subpoena jurors, a motion to vacate the order quashing the juror subpoenas, a motion to take juror depositions, a motion for enlargement of time to take juror depositions, and a motion renewing the plaintiffs' motion to take depositions, affidavits, and oral testimony of jurors. Matters concerning discovery pending appeal are within the trial court's discretion. Rule 27(b), Ala. R. Civ. P. "[R]elief under Rule 27 is discretionary with the trial court, and a trial court's ruling on a Rule 27 petition will not be reversed in the absence of an abuse of discretion." Ex parte Anderson, 644 So.2d 961, 964 (Ala.1994). Even if this Court viewed these subpoena requests as coming within the ambit of Rule 30, Ala. R. Civ. P., the abuse-of-discretion standard would still apply. Home Ins. Co. v. Rice, 585 So.2d 859, 862 (Ala.1991). After the trial, the plaintiffs had the trial-court clerk issue subpoenas to the jurors, without having gotten the approval of the trial court. In pertinent part, the trial court's order quashing the subpoenas stated: "The plaintiffs' attorney failed to comply with Rule 27 of the Alabama Rules of Civil Procedure for the taking of the depositions of witnesses pending appeal or before the taking of an appeal if the time therefor has not expired. The plaintiffs filed no motion with the court for authorization to take the depositions. Furthermore, the witnesses subpoenaed by the plaintiffs were jurors and the court is mindful of the special rules of law that apply to the testimony of jurors and policy considerations for these rules of law." All of the plaintiffs' arguments concerning posttrial discovery regarding the jury's deliberations are based on three affidavits that had been taken before the trial court quashed the subpoenas. The first was the affidavit of Charles Sharrief, Buchannon's father (who also is one of the plaintiffs). Sharrief's affidavit contains a list of statements made to him by some of the jurors after the trial. The trial court found that Mr. Sharrief's affidavit was comprised completely of "hearsay," as that term is defined by Rule 802, Ala. R. Evid. The Court notes that the plaintiffs have not directly challenged, by citation to any authority, the propriety of the trial court's order striking the affidavit of Sharrief on the basis that it contained nothing but hearsay. See Rule 28(a)(5) Ala. R.App. P. Hearsay evidence is not admissible in support of a motion for a new trial, and a new trial will not be granted on the basis of such evidence. Jefferson County v. Kellum, 630 So.2d 426, 427 (Ala.1993). We *652 conclude that the trial court did not abuse its discretion by refusing to allow Charles Sharrief's affidavit to support the issuance of subpoenas to individual jurors. Affidavits were also obtained from two of the jurors, S. and H. Their affidavits contain accounts of some jurors' discussions during deliberations. Rule 606(b), Ala. R. Evid., reads: "(b) Inquiry Into Validity of Verdict or Indictment. Upon an inquiry into the validity of a verdict or indictment, a juror may not testify in impeachment of the verdict or indictment as to any matter or statement occurring during the course of the jury's deliberations or to the effect of anything upon that or any other juror's mind or emotions as influencing the juror to assent to or dissent from the verdict or indictment or concerning the juror's mental processes in connection therewith, except that a juror may testify on the question whether extraneous prejudicial information was improperly brought to the jury's attention or whether any outside influence was improperly brought to bear upon any juror. Nor may a juror's affidavit or evidence of any statement by the juror concerning a matter about which the juror would be precluded from testifying be received for these purposes. Nothing herein precludes a juror from testifying in support of a verdict or indictment." This Court has stated: "Generally, affidavits are inadmissible to impeach a jury's verdict. An affidavit showing that extraneous facts influenced the jury's deliberations is admissible; however, affidavits concerning `the debates and discussions of the case by the jury while deliberating thereon' do not fall with this exception." HealthTrust, Inc. v. Cantrell, 689 So.2d 822, 828 (Ala.1997). See also Ala. R. Evid. 606(b); this rule is substantially similar to Rule 606(b), Fed.R.Evid. In Peveto v. Sears, Roebuck & Co., 807 F.2d 486, 489 (5th Cir.1987), the United States Court of Appeals for the Fifth Circuit held that "by implementing Rule 606(b), Congress has made the policy decision that the social costs of such error are outweighed by the need for finality to litigation." The Seventh Circuit has held that Rule 606(b) is designed "to protect the judicial process from efforts to undermine verdicts by scrutinizing the jurors' thoughts and deliberations." United States v. Ford, 840 F.2d 460, 465 (7th Cir.1988). Other courts of appeals for the federal circuits have stated that Rule 606(b) promotes "free and uninhibited discourse during deliberations." Attridge v. Cencorp Div. of Dover Techs. Int'l, Inc., 836 F.2d 113, 116 (2d Cir.1987); Maldonado v. Missouri Pac. Ry., 798 F.2d 764 (5th Cir.1986). The plaintiffs misconceive the distinction, under Alabama law, between "extraneous facts," the consideration of which by a jury or jurors may be sufficient to impeach a verdict, and the "debates and discussions of the jury," which are protected from inquiry. This Court's cases provide examples of extraneous facts. This Court has determined that it is impermissible for jurors to define terms, particularly legal terms, by using a dictionary or encyclopedia. See Fulton v. Callahan, 621 So.2d 1235 (Ala.1993); Pearson v. Fomby, 688 So.2d 239 (Ala.1997). Another example of juror misconduct leading to the introduction of extraneous facts sufficient to impeach a jury verdict is an unauthorized visit by jurors to the scene of an automobile accident, Whitten v. Allstate Ins. Co., 447 So.2d 655 (Ala.1984), or to the scene of a crime, Dawson v. State, 710 So.2d 472 (Ala.1997). The problem characteristic in each of these cases is the extraneous nature *653 of the fact introduced to or considered by the jury. The improper matter someone argues the jury considered must have been obtained by the jury or introduced to it by some process outside the scope of the trial. Otherwise, matters that the jurors bring up in their deliberations are simply not improper under Alabama law, because the law protects debates and discussions of jurors and statements they make while deliberating their decision. CSX Transp. v. Dansby, 659 So.2d 35 (Ala.1995). This Court has also noted that the debates and discussions of the jury, without regard to their propriety or lack thereof, are not extraneous facts that would provide an exception to the general rule of exclusion of juror affidavits to impeach the verdict. Weekley v. Horn, 263 Ala. 364, 82 So.2d 341 (1955). Nothing contained in the affidavits indicates the jury considered any extraneous facts. All the statements in the affidavits relate to evidence that was presented at trial or to information that was otherwise brought to the attention of the jury during the trial. The affidavits provide no evidence that the jury consulted any outside sources of information regarding the definition of "standard of care," or regarding any other matter. Nothing in either of the affidavits indicates that the jury, or any particular juror, was influenced by any outside source. The trial court did not abuse its discretion in denying the plaintiffs' posttrial motions seeking discovery regarding the jury's deliberations. HealthTrust, Inc. v. Cantrell, 689 So.2d 822 (Ala.1997). III. Alleged Errors During Trial The plaintiffs argue that the trial court erred in overruling their objection made pursuant to Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69, (1986), to the defendant's striking all but three of the women on the venire. The plaintiffs' also argue that they made an objection to the composition of the jury and a Batson objection to the striking of the one black member of the venire, but we have found no such objections in the record. We first address the plaintiffs' claim that Dr. Gerlach violated the principles of Batson by using 7 of her 10 peremptory strikes against women. Because the plaintiffs did not object to the striking of the sole black juror, no other Batson argument has been preserved for our review. Cone Bldrs., Inc. v. Kulesus, 585 So.2d 1284 (Ala.1991); Bruner v. Cawthon, 681 So.2d 161 (Ala.Civ.App.1995). A trial court's ruling on a Batson objection is entitled to great deference, and we will not reverse a judgment because of such a ruling unless it is clearly erroneous. Ex parte Branch, 526 So.2d 609 (Ala.1987). In Batson, the United States Supreme Court held that the Equal Protection Clause of the Fourteenth Amendment to the United States Constitution prohibits a prosecutor in a criminal case from exercising peremptory strikes to remove black potential jurors from a black defendant's jury solely on the basis of their race. In Edmonson v. Leesville Concrete Co., 500 U.S. 614, 111 S.Ct. 2077, 114 L.Ed.2d 660 (1991), the United States Supreme Court extended the Batson principles to civil cases. "The burden of persuasion is initially on the party alleging a discriminatory use of peremptory challenges to establish a prima facie case of discrimination." Thomas v. Diversified Contractors, Inc., 578 So.2d 1254, 1255 (Ala.1991). In J.E.B. v. Alabama, 511 U.S. 127, 114 S.Ct. 1419, 128 L.Ed.2d 89 (1994), the United States Supreme Court further extended Batson to gender-based strikes. "Only after a prima facie showing of discrimination has been established is a trial court under a duty to require an opposing party to provide *654 [gender-]neutral reasons for his peremptory strikes. Thomas at 1255. The following exchange took place at trial: MS. CAFFEY: "Your Honor, according to my calculations of the thirty-six potential jurors, Plaintiffs are left with either two or three women; and we would submit for the Court's consideration that three female jurors—that the striking of the women was done in a sexually biased manner in order to exclude mothers from the jury, and they struck some women but was based upon responses that were given during the jury voir dire [sic]; and we showed that they might be biased in the case, such as, the inability to award a large sum of money, and two or three of them indicated—well, one indicated that she would not be able to follow the Court's jury instructions and other indications like that. And, also, the Plaintiffs struck two jurors who indicated a knowledge and relationship with Dr. Gerlach as a result of their employment with the Jackson County Hospital, and considering that there would be some information involving the Jackson County Hospital and the fact that they were a Defendant in this case, those jurors were struck because of their potential bias. And that would be jurors V. and M. Juror W. indicated—well, we didn't strike M., that would be V., but Juror W. indicated that—I believe she indicated that she did not believe that she could be unbiased in this case, and we contend that the three jurors—well, first of all, that women are a representative group in the Jackson County community and that three female jurors out of a potential thirty-six would certainly constitute less than the percentage of women in the community, and also, it's less than a reasonable percentage of jurors that are left on the jury; and that's one-third of the jury. MR. KEY [defense attorney]: "Is that a prima facie case, Your Honor? THE COURT: "Are you saying it is? MR. KEY: "I'm saying it is not. THE COURT: "Well, what are your grounds in that regard? MR. KEY: "Judge, we can give a reason for every strike that we made, but the point is that we had ten strikes, and how many women are left on the jury? THE COURT: "Three. MR. KEY: "Well, I'll say this. It's very unusual because it seems like that the last forty cases that I've tried, it's been about eight to three female; but, you know, there's no—I just don't see that there's any prima facie case here based on—you do have three women on the jury; and unless we're called to show gender-neutral reasons, then that's as far as I can go because I just don't see it. MS. CAFFEY: "Well, you struck seven of the female jurors, none of whom gave any indication of being connected with any of the parties. MR. KEY: "Well, for instance, the last strike, she indicated that she had been treated for diarrhea and vomiting and throwing up and had been put on IVs within four hours; and that's what they're saying that we should've done, and we've got reasons. And if we're forced to go back and reconstruct them, then we can, but— THE COURT: "Well, the Court rules that the Plaintiff [sic] has not made a prima facie case of discrimination in regard to gender. All right; anything further? MS. CAFFEY: "Your honor, my understanding of the law is that I would have to show that the group would be a representative *655 group in the community and that the defendants abused strikes in a manner ... which left the number of jurors on the jury in this representative group less than the percentage of that group in the community; and I've clearly shown that. I have also offered the Court an explanation insofar as the striking of female jurors by the Plaintiffs and have shown sex-neutral reasons; and the Defendant has indicated that they would have to put together some reasons for the striking, and— THE COURT: "Well, that was not my understanding of the statement made by defense counsel. All right; that's my ruling. Do you have anything further? MS. CAFFEY: "No, Your Honor." The plaintiffs' only objection regarding the defendant's strikes of women, if it can be characterized as an objection, was to the fact that only three women were left on the jury. However, "`"[I]t is important that the defendant come forward with facts, not just numbers alone, when asking the [trial] court to find a prima facie case"' of ... discrimination." McElemore v. State, 798 So.2d 693, 696 (Ala.Crim.App. 2000) (quoting Mitchell v. State, 579 So.2d 45, 48 (Ala.Crim.App.1991), in turn quoting United States v. Moore, 895 F.2d 484, 485 (8th Cir.1990)). Based on the record, we conclude that the plaintiffs did not present a prima facie case of improper strikes on the basis of gender. In Ex parte Trawick, 698 So.2d 162 (Ala.1997), this Court reasoned: "Trawick has offered no evidence that the female veniremembers shared only the characteristics of gender, that anything in the type or manner of the prosecutor's statements or questions during the extensive voir dire indicated an intent to discriminate against female jurors, that there was a lack of meaningful voir dire directed at the female jurors, or that female jurors and male jurors were treated differently. He has offered no evidence that the prosecutor had a history of using peremptory challenges in a manner that discriminated against veniremembers of either gender. Instead, Trawick has merely emphasized that the State used many of its strikes to remove women from the venire. Without more, we do not find that the number of strikes this prosecutor used to remove women from the venire is sufficient to establish a prima facie case of gender discrimination." 698 So.2d at 168. The reasoning of Trawick applies here. We have reviewed the trial transcript, and our review indicates the plaintiffs presented nothing to show a prima facie case of gender discrimination. Therefore, the trial court was not required to have the defense provide gender-neutral reasons for its peremptory strikes. We conclude that the trial court acted within its discretion in denying the plaintiffs' Batson motion. The plaintiffs also argue that the trial court erred in excluding their Exhibit 5 ("Defendant's Medical Record" annotated by Dr. William Garrett during trial) and their Exhibit 7 (pamphlets on Rocephin and Doxycycline). However, the plaintiffs made no objections at trial to the exclusion of these exhibits, and this Court will not consider objections to the exclusion of evidence that were not raised at trial. Zielke v. AmSouth Bank, N.A., 703 So.2d 354, 361 (Ala.Civ.App.1996); Bolen v. Hoven, 143 Ala. 652, 39 So. 379 (1905). We note further that the plaintiffs' brief contains no citations to authority supporting their contentions. See Rule 28(a)(5), Ala. R.App. P.; McLemore v. Fleming, 604 So.2d 353 (Ala.1992). *656 The judgment of the trial court is affirmed. AFFIRMED. MOORE, C.J., and SEE, BROWN, and STUART, JJ., concur. NOTES [1] The Court will not address this fourth issue, because the plaintiffs' brief contains no citations to authority supporting their contentions. Rule 28(a)(5), Ala.R.App.P., specifically requires an appellant to present the appellate court with citations to authorities supporting the appellant's contentions. When an appellant fails to comply with Rule 28(a)(5), Ala. R.App. P., this Court may affirm the ruling the appellant is complaining of. McLemore v. Fleming, 604 So.2d 353 (Ala.1992). [2] Rocephin is a sterile, semisynthetic, broadspectrum cephalosporin antibiotic for intravenous or intramuscular administration. Physicians' Desk Reference 2765 (55th ed.2001). [3] Doxycycline is a broad-spectrum tetracycline antibiotic used against a wide variety of bacterial infections. Physicians' Desk Reference 2254 (55th ed.2001).

75 Ill. App.2d 144 (1966) 220 N.E.2d 590 Decatur and Macon County Hospital Association, a Corporation Not For Profit of Illinois, for the Use of Niagara Fire Insurance Company, Phoenix Assurance Company, Standard Fire Insurance Company, Rochester American Insurance Company, American Insurance Company, United States Fire Insurance Company, Hartford Fire Insurance Company, and Merchants Fire Assurance Corporation, Plaintiff-Appellee, v. Erie City Iron Works, a Foreign Corporation, T.A. Brinkoetter & Sons, Inc., a Foreign Corporation, and Illinois Power Company, an Illinois Corporation, Defendants, Erie City Iron Works, a Foreign Corporation, Defendant-Appellant. Gen. No. 10,679. Illinois Appellate Court — Fourth District. September 26, 1966. Rehearing denied October 24, 1966. *145 *146 Earl S. Hodges, of Springfield, and Greanias & Owen, of Decatur (Marshall A. Susler, of counsel), for appellant. Giffin, Winning, Lindner & Newkirk, of Springfield (James M. Drake, of counsel), for appellee. TRAPP, P.J. Defendant Erie City Iron Works, hereinafter designated Erie, appeals from a judgment in the sum of $30,818.50 entered in favor of the plaintiff upon the verdict of a jury against Erie and T.A. Brinkoetter & Sons, Inc. Other disposition has been made as to the case against the latter and we consider only the appeal of Erie. Plaintiff's action was for property damage in the approximate amount of the judgment incurred as the result of the explosion of a gas-fired boiler manufactured by Erie and installed by Brinkoetter. At the time of the explosion installation had just been completed and was at the stage of the initial start-up and adjustment of the boiler. Title to it had not yet passed to the plaintiff. The defendant's theory is that defendant was not guilty of the negligence that was the proximate cause of plaintiff's damages; that the court should have directed a verdict in favor of this defendant, or granted defendant's post-trial motion for judgment notwithstanding the verdict of the jury or, in the alternative, should have granted defendant a new trial of the issues, because of error committed by the court in submitting, to the jury, both Count I and Count II of plaintiff's complaint, which respectively were predicated upon a res ipsa loquitur theory and specific negligence theory; that there was error by the court in denying defendant's motion for mistrial because of prejudicial conduct of counsel; that conduct of *147 a juror was prejudicial to defendant; and that there was error by the court in giving certain instructions to the jury; and other errors hereinafter discussed. Plaintiff purchased the boiler as a "package" boiler fabricated by Erie at its plant and shipped assembled for installation as a complete unit with automatic firing controls built on. The fire control unit and the main motorized valve were not manufactured by Erie but were purchased by it and affixed to the fabricated boiler. The Brinkoetter contract called for it to install the boiler and connect it to the line bringing gas into the building. In making the installation, Brinkoetter did not install what has been called a "dirt leg," i.e., a trap consisting of a length of pipe extending beyond the point where a vertical gas line is turned so that it travels horizontally. Its function is to catch condensed moisture and debris in the gas line. Plaintiff had retained consulting engineers to design and supervise installation of the boiler. The schematic drawing provided by the engineer did not show a "dirt leg." The latter testified that the contractor should install a "dirt leg" whether drawn in the plans or not. Officers of Brinkoetter say that it puts in dirt legs when the plans call for them, otherwise it does not. Neither the fabricated boiler nor the connecting line, as installed, included a "strainer," which is described as a distinctive appearing section of pipe containing a screen, the function of which is to catch debris which might be carried through the line by the flow of gas. When used, it is installed in the line ahead of the valves and controls. A brochure of the valve manufacturer recommended that a strainer be placed ahead of the main valve. Such a strainer was not included in the unit fabricated by Erie. The consulting engineer's schematic drawing did not include a strainer. He testified that he would have included it if he had known that a strainer was recommended. An officer of Brinkoetter testified that he had never heard *148 of a strainer in a gas line. In behalf of the latter, its foreman and employes testified that as the gas line was being installed, steps were taken to knock loose the scale and clean the connecting pipe. It appears that the installation was nearly completed when the contractor was advised by the gas company foreman that it would be necessary to install a regulator, i.e., a device which lowered the pressure from the 35-pound pressure in the main to some 10 pounds as specified by the boiler. A used regulator was available at the hospital and was installed. At first it did not function, but after some adjustment was observed to be reducing the pressure. It was not tested after the explosion. In installing the regulator at this time, it was necessary to cut the gas line with a torch and weld on a section of pipe. It does not appear what, if anything, was done to inspect for and remove debris in the pipe following this operation. There is some conflict in the evidence as to whether or not welding slag would enter the pipe by reason of this work. Under the terms of its contract with Erie, plaintiff elected to have the services of a start-up engineer. Upon notification of the completion of the installation such engineer, one Enders, was sent by Erie. The explosion in issue occurred at 11:40 a.m. on Thursday, September 25, 1958. In summary, it appears that Enders had arrived on the preceding Tuesday, that the boiler was started up and fired for some 20 hours and then shut down, and that on the morning of the 25th it had been started up and fired for some 2 hours preceding the explosion. Enders died following the explosion, apparently as the result of injuries sustained. With regard to the things done during this period, one Binns, a member of the hospital maintenance staff, testified that Enders started the boiler operation, handled the controls and made adjustments, and that immediately prior to the explosion Enders was making an adjustment of the water level in the boiler. Charles Fearn, foreman *149 of the gas distribution crew of the utility company which was working on the exterior gas line, testified that he had been in the boiler room during the morning and Enders had told him that the boiler was on low fire or "no load" firing, and that he was going to test the boiler on high fire, asking Fearn to time the meter outside so that there could be a measurement of the cubic feet of gas entering the boiler on high fire. No specific arrangement was made as to when this would be done. Following the explosion, a State boiler inspector, and representatives of the interested parties, together with engineers and experts retained by them, assembled at the scene to examine the boiler which had been kept undisturbed. Several of them testified that they had noticed the absence of the dirt leg and the screen in the gas line connected to the boiler. The main valve was examined as to its external indicator and the testimony varies from the statement that it was apparently closed, through slightly open to one-third open. The boiler inspector testified that he assumed that it was open. It does not appear that any organized procedure was followed so that each expert present observed all of the matters testified to. The main valve was then disassembled. Most witnesses testified to observing some scale and several pieces of welding slag on both the upstream and downstream sides of the valve. There is testimony that upon examination of the several parts of the valve, a resilient neoprene seal was observed to be indented and that the stainless steel seat of the valve was scored to a depth of 1/16th of an inch or so, the width of the indentation being that of a blade of a table knife. There is other testimony that the seat bore only normal scratches. It does not appear that tests were made to determine whether the indentations on the neoprene seal coincided with the scoring of the valve seat. At the trial the neoprene seal no longer bore any indentation. *150 This was explained as being due to the resilient nature of the substance. The steel valve seat was not produced at the trial. The consensus of the testimony is that there was a gas explosion followed by an explosion of the boiler itself. The opinion testimony is that the first explosion resulted from the ignition of a surplus of gas within the combustion chamber, which gas was somehow ignited. Paul Wilson, an employe of Erie in charge of their service department, testified that he did not believe it possible to find the actual cause of the majority of explosion cases, and George Harper, a professor of engineering at the University of Illinois, testified that in such an explosion things are so disrupted that it cannot be ascertained with certainty what happened, but that it was necessary to draw deductions. From the record it appears that a variety of factors inducing the explosion may have existed. There is, of course, the contradictory nature of the testimony as to whether or not the motorized main valve was closed or open, whether or not slag from welding had lodged in the main valve so that it was not completely closed, and whether such slag would be sufficient to hold the valve open with the pressures concerned without distorting the valve stem, which apparently was in normal condition. There is testimony by Ted Brinkoetter that the control system, upon being tested, did not always work, but there is also testimony that it functioned correctly upon tests. Harry Reynolds, an investigating engineer retained by the plaintiff, testified that it would take a very small amount of gas to cause an explosion in this boiler, and that it was particularly hazardous to operate the boiler on a "no load" basis as the mixture of air and gas gets out of balance and becomes explosive. He also testified that upon initial examination, the oil burning switch was on instead of the gas burning switch. A witness, testifying in behalf of Brinkoetter, stated that shortly before the explosion, *151 Enders flipped a switch and that the flame in the boiler went out and did not come on again. It is one of defendant's arguments that by this contract it was to furnish a package boiler but had no responsibility for its installation. This position was taken in its first motion to the complaint and is argued here. The nature of defendant's disclaimer seems to be based upon its Exhibit #1 contained in a foreword to the instruction manual which Erie shipped with the boiler. A relevant part includes the following: "When the service of an Erie City Iron Works Engineer is provided for the customer, it is for the purpose of aiding in the training of the customer's personnel and not to replace them or assume any of their duties. It should be understood that the responsibility for operation rests solely with the customer's operators and the Erie City Iron Works assumes no responsibility for the customer's operators' failure to properly perform their respective duties, and the presence of an Erie City Iron Works Engineer at the customer's plant in no way relieves the customer's personnel of any of their responsibilities." The following also appears in slightly varying form in several places in the contract for the purchase of the boiler: "With respect to all preliminary operations, initial start-up, demonstration of capacity and performance guarantees, representatives of the Company are authorized only to advise and consult with the Purchaser or its representatives and no representative of the Company is licensed to operate the equipment. In the event the Purchaser shall operate the equipment specified hereunder prior to final acceptance, the Purchaser shall indemnify and save harmless the Company against any loss or expense and against any liability imposed upon the Company, resulting *152 from the operation of such equipment by the Purchaser prior to final acceptance, except any such loss, expense or liability for injury or damage resulting from the negligent acts or omissions of the Company or its agents or employees." (Emphasis supplied). It appears from the testimony that the package boiler is not operational upon delivery but requires adjustment to make it perform properly. Paul Wilson, who is in charge of field service for defendant, testified that the linkage of the butterfly valve regulating the ratio of air and gas must be adjusted and that the damper linkage must be "positioned." He testified that the service engineer never operates the boiler but that it is the obligation of the purchaser to make such adjustments according to the engineer's instructions. He testified that it was the service engineer's duty to make a visual check of the gas line installed, check the controls and firing equipment, consult and assist placing the boiler in service, instruct in operating the boiler and its controls and assist in making the final adjustments. Brewster, a witness for Brinkoetter, testified that Enders examined the pipeline but made no suggestions for changes in the work as installed, and the record is that Enders did, in fact, start-up and fire the boiler, make adjustments, and made or had arranged to make the tests, including the testing of its capacity on the high fire. Binns, an employe of the hospital, testified that no one other than Enders handled or adjusted the controls. The manual submitted by Erie contains a section A designated "Preparing the boiler for service — Inspection of unit." Section A-1 states that prior to placing equipment in service a complete inspection should be made to determine its condition and continues: "In case of newly constructed power equipment, this inspection should insure that the unit has been correctly completed." *153 Section A-2 is as follows: "Responsibility for the completion of construction normally rests with the customer's construction engineer working in conjunction with the manufacturer's erection or service engineer. At completion of construction work, an inspection should be made in the presence of the customer's construction engineer, operating engineer, the construction superintendent and the manufacturer's engineer (if one is present) and agreement reached that the equipment is in a satisfactory condition for placing into service." There is no evidence that such inspection or agreement was reached or called for by defendant's service engineer. As to the contention that by contract Erie had no responsibility, claimed under its Exhibit #1, the "foreword" to the instruction manual and the several provisions set out in the contract should not control under these circumstances. The effect of these documents might be that Erie could not be required to perform the tests and effect the start-up of the boiler, but they should not control liability where under the evidence it might be reasonable to conclude that they did, in fact, undertake and perform the work. The contract provision quoted does not attempt to exclude negligence of Erie employes. Erie discusses Count I of the complaint as involving the principles of res ipsa loquitur under a pleading of general negligence. These principles are thoroughly discussed in Metz v. Central Illinois Electric & Gas Co., 32 Ill.2d 446, 207 NE2d 305, and need not be reiterated. [1] Erie urges that the inference of negligence under Count I should not be allowed because the boiler was not under its exclusive control. The defendant points out that the evidence discloses that Enders, Brewster, an employe of Brinkoetter, Binns, an employe of the hospital, and Robert Brinkoetter were all present at the time of the explosion. The evidence has been examined to determine *154 what, if anything, these individuals were doing to exercise control of the unit. We cannot say that it is contrary to the manifest weight of the evidence for the jury to conclude that Erie's man Enders was, in fact, in control of the proceedings incident to the start-up and testing of the boiler. There is no evidence that any person other than Enders participated in any phase of the work. In May v. Columbian Rope Co., 40 Ill. App.2d 264, 189 NE2d 394, the complaint alleged the purchase and delivery of a new rope which broke shortly after placing the rope into use. There was judgment n.o.v. entered by the trial court. The Appellate Court reversed, holding that the inference of negligence under the theory of res ipsa loquitur was properly applicable. As to that defendant's contention that it was not in control of the rope at the time of the injury, the court said: "Decisions from other states and recent cases here reject this inflexible application of a rule of control and hold that a defendant in a res ipsa loquitur case cannot automatically defeat an allegation of negligence with a bare showing that, before harm struck, it had parted with control of the harmful instrumentality. (Prosser, Torts 206 (2d ed 1955).) "The demonstrable trend of these authorities is to determine from the nature of the defective instrumentality and the surrounding circumstances whether the inference of the defendant's negligence is strong enough to survive the fact that, between the defendant's control and the plaintiff's injury, another possession intervened." The court continued to say that it was for the determination of the jury as to whether the permissive inference of negligence arising from the facts was to prevail over defendant's countervailing proof of due care. As stated in Prosser, Law of Torts, 2d ed 1955, p 206, chap 7, § 42, the word "control" may be the wrong word. It is said: *155 "Some courts have said that it is enough that the defendant was in exclusive control at the time of the indicated negligence. It would be far better, and much confusion would be avoided, if the idea of `control' were discarded altogether, and we were to say merely that the apparent cause of the accident must be such that the defendant would be responsible for any negligence connected with it." In Schroeder v. City & County Sav. Bank of Albany, 293 NY 370, 57 NE2d 57, the defendants were several contractors and the owner of a building under repair. The court noted: "It is not necessary for the applicability of the res ipsa loquitur doctrine that there be but a single person in control of that which caused the damage." Amongst other cases defendant relies upon Kirchner v. Kuhlman, 334 Ill. App. 339, 79 NE2d 628. There defendant's employes were working on plaintiff's premises but we find no evidence that these defendants had control of the trash container belonging to the plaintiff in which the fire started. Again, in Krump v. Highlander Ice Cream Co., 30 Ill. App.2d 103, 173 NE2d 822, the collision of two automobiles caused one of them to strike and damage plaintiff's building. While the court said that the doctrine of res ipsa loquitur did not apply, it did hold that there was a presumption of negligence where an accident occurred which would not ordinarily occur if due care had been taken, and that it was proper to call upon the defendants to exculpate themselves. The distinction between this conclusion and the theory of res ipsa loquitur appears slight. [2] Defendant argues that Count I of the complaint alleged general negligence stating a cause of action upon the theory of res ipsa loquitur, while Count II alleges certain acts of specific negligence, and that under the authorities in this State the inference of negligence which *156 arises under res ipsa loquitur, "vanishes" upon the introduction of evidence of specific negligence. Amongst the authorities cited are Bollenbach v. Bloomenthal, 341 Ill. 539, 173 NE 670. This rule has been categorically overruled by our Supreme Court in Metz v. Central Illinois Electric & Gas Co., 32 Ill.2d 446, 207 NE2d 305. In that case the complaint charged general negligence in one count employing the theory of res ipsa loquitur, and in a second count alleged specific negligence. At the close of the evidence plaintiff was required to, or did elect, to rely upon the charge of negligence and the theory of res ipsa loquitur. The verdict for the plaintiff was reversed in the Appellate Court on the theory that res ipsa loquitur did not apply as other parties had access to the area of the gas main. In reversing the Appellate Court, the Supreme Court remarked upon the conflict amongst the Illinois decisions. We may note that many of these decisions are in broad language open to a variety of interpretations, and frequently they do not indicate the reason for the decision. In Metz the Supreme Court concluded that the more studied, more just view is that the inference of negligence does not vanish when contrary evidence appears, but that it remains to be considered and weighed by the jury against the direct evidence offered by the party charged, citing Cobb v. Marshall Field & Co., 22 Ill. App.2d 143, 159 NE2d 520; Illinois Pattern Jury Instruction, 22.01 with comment on pages 128, 129; Prosser, 20 Minn L Rev, 241. See also O'Hara v. Central Illinois Light Co., 319 Ill. App. 336, 49 NE2d 274; May v. Columbian Rope Co., 40 Ill. App.2d 264, 189 NE2d 394. [3] Defendant's contention that plaintiff should have been required to elect as between the counts is controlled by the rule of Metz. Defendant's authorities are Wm. Wrigley, Jr. Co. v. Standard Roofing Co., 325 Ill. App. 210, 59 NE2d 510; and Simmons v. South Shore Hospital, 340 Ill. App. 153, 91 NE2d 135. In the former case the Appellate Court undertook to specify what may be described *157 as the requirements that plaintiff elect between the general negligence count and the count for specific negligence. The only cited authority for such procedure was Bollenbach v. Bloomenthal and its rule that the inference of negligence vanished upon the introduction of evidence of specific negligence. By reason of the Metz decision, this reason for such rule no longer exists. Simmons v. South Shore Hospital, as well as Jackson v. 919 Corp., 344 Ill. App. 519, 101 NE2d 594, simply relied upon the rule of Wrigley as authority without discussing it. There is, in fact, persuasive opinion contrary to the contention of Erie regarding the theory of election in Erckman v. Northern Illinois Gas Co., 61 Ill. App.2d 137, 210 NE2d 42. There premises were damaged by an explosion of gas leaking from the company lines. The complaint alleged only specific negligence and there was some evidence of a failure of periodic inspection. The trial court gave an instruction authorizing the jury to apply, or employ, the inference of negligence under res ipsa loquitur. The Appellate Court reversed since there was no pleading of general negligence, but stated that upon a new trial the complaint should be amended to include such an allegation. The court there said: "An inference of general negligence arising from the doctrine of res ipsa loquitur is not necessarily inconsistent with proof of specific negligence. To hold that proof of specific negligence precludes the application of the res ipsa doctrine could lead to the absurd result of weak proof of specific negligence voiding a strong inference of general negligence.... If there is an inference of general negligence and proof of specific negligence, but reasonable men may differ as to the effect of this evidence, it should then be for a jury to determine under which theory, if any, the plaintiff should prevail. McCormick v. Kopmann, 23 Ill.2d 189, 205, 161 NE2d 720 (3rd Dist 1959)." *158 [4] The Illinois courts recognize that the doctrine of res ipsa loquitur is but one form of circumstantial evidence. May v. Columbian Rope Co., 40 Ill. App.2d 264, 189 NE2d 394. It has been suggested that the doctrine that requires election assumes that the inference arising through res ipsa loquitur must be an alternative to direct proof rather than a type of circumstantial evidence to be weighed with other evidence, and it has been criticised as an assumption that the pleader must be totally ignorant of the facts. 2 ALR3d 1335, at 1340. There is reason in the hypothesis that there should not be a penalty imposed upon the pleader for placing before the court all facts known to him. 27 Fordham L Rev, 411-415; Foster v. Union Starch & Refining Co., 11 Ill. App.2d 346, 137 NE2d 499. This is particularly true when an allegation notifies the defendant of the intent to rely upon the inference of negligence arising under the doctrine of res ipsa loquitur. It is the policy under the rule of Metz v. Central Illinois Electric & Gas Co., 32 Ill.2d 446, 207 NE2d 305, that once the inference of negligence arises through allegations of general negligence, it remains for the consideration of the jury, unless and until the precise cause of the injury is established. 27 Fordham L Rev 411. In Prosser, Law of Torts, 2d ed, chap 7, § 43, p 214, it is suggested: "It is quite generally agreed that the introduction of evidence which does not purport to furnish a complete explanation of the occurrence does not deprive the plaintiff of res ipsa loquitur." In Cassady v. Old Colony St. Ry. Co., 184 Mass. 156, 68 NE 10, at p 12, the court said: "The defendant also contends that, even if originally the doctrine would have been applicable, the plaintiff had lost or waived her rights under that doctrine, because, instead of resting her case solely upon it, she undertook to go further, and show particularly *159 the cause of the accident. This position is not tenable. It is true that, where the evidence shows the precise cause of the accident, (citing authorities), there is, of course, no room for the application of the doctrine of presumption. The real cause being shown, there is no occasion to inquire as to what the presumption would have been as to it if it had not been shown. But if, at the close of the evidence, the cause does not clearly appear, or if there is a dispute as to what it is, then it is open to the plaintiff to argue upon the whole evidence, and the jury are justified in relying upon presumptions, unless they are satisfied that the cause has been shown to be inconsistent with it. An unsuccessful attempt to prove by direct evidence the precise cause does not estop the plaintiff from relying upon the presumptions applicable to it." We believe that this position was approached in Krueger v. Richardson, 326 Ill. App. 205, 61 NE2d 399, when the court noted that the plaintiff was not required to prove the specific acts of negligence as alleged, but they had a right to rely upon the proof and its reasonable inferences to establish a prima facie case of general negligence. In this case it seems proper to say that reasonable men might differ as to the effect of the evidence heard by the jury. Expert witnesses would not even undertake to announce an hypothesis, but rather advised of the virtual impossibility of reaching a specific determination of what caused the explosion. This situation here appears to be precisely that contemplated in the language of Erckman v. Northern Illinois Gas Company. [5] In its reply brief Erie contends that the doctrine cannot be followed because there are multiple defendants. No Illinois cases seem applicable as precedent. In Schroeder v. City & County Sav. Bank of Albany, 293 NY 370, 57 NE2d 57, it was held error to dismiss a complaint seeking to apply res ipsa loquitur as against three defendants. *160 See also Burr v. Sherwin-Williams Co. (Cal App), 258 P.2d 58, 38 ALR2d 905 et seq. Again in Zichler v. St. Louis Public Service Co., 332 Mo 902, 59 S.W.2d 654, general negligence was pleaded against the service company while specific negligence was pleaded as to another defendant who was found not guilty by the jury. It was contended that it was improper to permit the res ipsa loquitur inference to be applied to one joint tort feasor, but not the other. Pointing out that the rule was one of evidence rather than pleading, the court said: "A plaintiff should not be compelled to confine his action to one joint-feasor only in order to be accorded the rights which the law gives to him." It being the policy under the rule of Metz that the inference of negligence is to be weighed by the jury with other evidence, we see no reason why the benefit of such rule should be denied to the plaintiff where under the events at issue, more than one party may be the source of injury to the plaintiff for otherwise he would be limited in the use of, or be completely denied the benefit of the rule. In Metz the Supreme Court said that whether the doctrine applies in a given case is a question of law for the trial court. We believe that these conclusions dispose of the contentions of Erie that the court erred in refusing to strike par 8 to Count I. Defendant contends that the case must be remanded for error in the giving of instructions. His objection to plaintiff's instruction #20 is that it permits the jury to consider the case upon the theory of res ipsa loquitur, as well as upon the allegations of specific negligence. The matters hereinabove discussed dispose of this contention. [6] There is objection to Brinkoetter's instruction #6 which may be summarized as an issues instruction relating to negligence alleged as to Erie and as to the defendant Brinkoetter. It is contended that as to Erie there is no evidence in the record as to certain matters *161 stated in the instruction to be alleged in the complaint. The Abstract discloses that at the conference on instructions Erie simply made the objection that the evidence did not support all of the charges. This does not meet the rule that specific objections to instructions must be made at the conference on instructions. Vasic v. Chicago Transit Authority, 33 Ill. App.2d 11, 180 NE2d 347. The court's comment indicates that he believed that those matters not supported by the evidence had been omitted from the instruction. Under such circumstances we do not believe that there is reversible error. [7] Erie urges that the cause must be reversed and remanded by reason of the fact that a juror on voir dire indicated that he was not interested in any lawsuits then pending in court, but that subsequent to the trial, counsel discovered that he had been defendant in a lawsuit and was, at the time of trial, a plaintiff in a pending cause. Erie does not contend that it was, in fact, prejudiced by the juror sitting upon the panel, but says that the prejudicial effect cannot be calculated. It indicates that it could have challenged the juror, though it is not claimed that it would have done so. In Department of Public Works & Buildings v. Christensen, 25 Ill.2d 273, 184 NE2d 884, it was alleged that the party would not have accepted the juror if a true answer had been given. The Supreme Court there held that the motion for a new trial would be denied unless it was shown not only that the juror answered falsely, but also that prejudice resulted. Erie cites the case of People v. Ortiz, 320 Ill. 205, 150 NE 708, which may be distinguished because in that case the juror had actually expressed hostility to the defendant which he had concealed. [8] Erie urges that the judgment must be reversed because of a reference to insurance introduced during cross-examination in behalf of the defendant Brinkoetter. One George Harper testified in behalf of the plaintiff as an expert witness who had examined the boiler following *162 the explosion. It appears that he had originally been requested to make the examination by a representative of the company insuring Erie. The name of the insurance company was given in answer to a question to whom he had delivered his report. The trial court sustained an objection to a question as to what party was covered and an objection as to whether the insurance company represented Erie. The trial court, while indicating disapproval of counsel's action, denied the motion for a mistrial. It is clear that plaintiff did not, in any way, precipitate this issue. Under the circumstances of this case, the proceedings clearly indicated to the jury that certain insurance companies were to be the beneficiaries of a judgment for plaintiff. This fact would seem to indicate little probability of prejudice as between insurance companies upon the issue of liability. Edwards v. Hill-Thomas Lime Co., 378 Ill. 180, 37 NE2d 801. Upon the possibility of prejudice regarding the issue of damages, the amount of the verdict is slightly less than the amount paid by plaintiff to Erie for the boiler. Insofar as counsel may have attempted to create prejudice as between the parties defendant, the verdict of the jury is joint and they seem to make no distinction. Under the circumstances of this case, we conclude that there was no abuse of discretion by the trial court in refusing to grant a mistrial. Isenhart v. Seibert, 6 Ill. App.2d 220, 127 NE2d 469. [9] Upon consideration of the issues of law, we conclude that the trial court did not err in refusing to direct a verdict or enter a judgment n.o.v. upon the several motions made by Erie, and that, from an examination of the evidence, the verdict of the jury is not contrary to the manifest weights of the evidence. Taken with the case was plaintiff's motion to dismiss as a "use plaintiff" the Niagara Fire Insurance Company. The effect of such dismissal is to reduce the amount of *163 the judgment in the sum of $4,873.05. The motion is allowed and the judgment ordered reduced in said amount. The judgment of the trial court is affirmed, but the cause is remanded with directions to enter judgment in the amount due by reason of the dismissal of the party plaintiff pursuant to motion. Affirmed as modified. SMITH and CRAVEN, JJ., concur.

994 A.2d 1040 (2010) 202 N.J. 43 STATE v. McCARY. Supreme Court of New Jersey. May 19, 2010. Petition for Certification Denied.

MARVIN T. BURTON, JR. Defendant Below, Appellant, v. STATE OF DELAWARE, Plaintiff Below, Appellee. No. 335, 2008 Supreme Court of Delaware. Submitted: January 28, 2009. Decided: March 4, 2009. Before STEELE, Chief Justice, JACOBS and RIDGELY, Justices. ORDER JACK B. JACOBS, Justice. This 4th day of March 2009, upon consideration of the briefs of the parties and the record in this case, it appears to the Court that: 1. Marvin Burton, the defendant below, appeals from the denial by the Superior Court of a Rule 61 motion for post-conviction relief. On appeal, Burton argues that the trial court erroneously denied that motion which was based, in part, on a claim of ineffective assistance of counsel. Given the serious nature of the charges, the fact that Burton's Rule 61 motion was filed pro se, and that the alleged new evidence has not yet been considered by the Superior Court, we remand for further proceedings limited to Burton's ineffective assistance of counsel claim. 2. Burton was arrested on October 6, 2004, and indicted on October 25, 2004 on charges of First Degree Rape, Second Degree Rape and Second Degree Unlawful Sexual Contact. Burton's daughter, the alleged victim, who was eleven years old at the relevant times, claimed that on at least three occasions Burton had sexually abused and raped her. All three incidents allegedly occurred while the victim was staying at Burton's parents' house in 2004, with the two most serious incidents allegedly occurring in August 2004. Trial began on August 8, 2005. On August 11, 2005 Burton was convicted on all charges. 3. Because of prior convictions for Third Degree Burglary and Third Degree Unlawful Sexual Intercourse, the State moved to declare Burton an habitual offender under 11 Del. C. § 4214.[1] On October 28, 2005, the Superior Court declared Burton an habitual offender and sentenced him to life in prison for each of the two Rape charges, plus two additional years imprisonment for the Unlawful Sexual Contact charge. The Superior Court also imposed special conditions, including a no contact order and sex offender registration. 4. After sentencing, defense counsel filed a notice of appeal on Burton's behalf and a motion to withdraw pursuant to Supreme Court Rule 26(c). The State filed a motion to affirm. After reviewing the record, this Court determined that Burton's appeal was "wholly without merit and devoid of any arguably appealable issue" and granted the motion to affirm.[2] 5. On August 16, 2007 Burton moved pro se for post-conviction relief, raising multiple claims including ineffective assistance of counsel.[3] Burton alleged that his trial counsel was incompetent, failed to interview and subpoena key defense witnesses, and did not allow Burton to testify. On September 4, 2007, trial counsel filed a sworn letter memorandum responding to that motion. Trial counsel explained that he did not mislead Burton or refuse to allow him to testify. Rather, he advised Burton not to take the stand for the strategic purpose of avoiding cross-examination on Burton's prior convictions. After receiving that advice, Burton agreed and chose not to testify. Trial counsel further explained that he did, in fact, contact most of the witnesses Burton claimed were not interviewed or subpoenaed, and found that those witnesses either could not provide the testimony Burton claimed, or that they had no information helpful to Burton's defense. 6. On June 3, 2008, the Superior Court denied Burton's motion without a hearing, finding that Burton's arguments were all without merit.[4] On June 30, Burton filed a notice of appeal, pro se, and on August 14, appellate counsel entered an appearance on his behalf. 7. Although Burton advanced numerous claims of error in his motion for post-conviction relief, on appeal he advances only one—that the Superior Court erred by denying his claim of ineffective assistance of counsel. Moreover, Burton limits that claim to the contention that trial counsel was ineffective by failing to contact, properly interview and subpoena material witnesses, and also by refusing to allow Burton to testify at trial.[5] 8. The State has moved to strike certain affidavits and information included in Burton's appendix that were not part of the record on appeal. These affidavits include: (i) a statement by Marvin Burton, Sr. "that he was not contacted, interviewed or subpoenaed concerning the fact that the alleged victim . . . did not live in our residence from late July through September 2004"; and (ii) a statement by Stacie Brittingham (Burton's sister) that she was not interviewed before the day of trial concerning her testimony, and that the alleged victim did not live in her parent's residence from late July through September 2004 and that that issue was not raised in questioning during her testimony at trial. Also included was a statement by Eric Morris that (i) "he was not contacted, interviewed or called as a witness concerning the fact that the alleged victim . . . did not live at Marvin Burton, Sr. and Vivian Burton's residence from late July through September 2004;" and that (ii) "I would also have testified that [the alleged victim] lived with me approximately 3 weeks during the end of July and August 2004 and she stayed with other individuals until the month of September 2004. . . ." 9. As a general matter, the record on appeal may not be supplemented by affidavits relating facts and circumstances that were not fairly presented to the trial court,[6] and we will not consider such supplemental affidavits. For new evidence to be considered, a party should file a motion to remand to the trial court to determine the facts in light of their new evidence.[7] Here, however, Burton moved for post-conviction relief pro se, without the evidence having been considered by the Superior Court. In such circumstances, some leeway should be granted if, in the interests of justice, the new evidence ought to be considered.[8] For that purpose a remand is appropriate. NOW, THEREFORE, IT IS ORDERED that this matter is remanded to the Superior Court for further proceedings limited to the ineffective assistance of counsel claim. Jurisdiction is not retained. NOTES [1] See generally 11 Del. C. § 4214 (providing for sentencing as an habitual criminal). [2] Burton v. State, 907 A.2d 145, 2006 WL 2434914, at *1 (Del. 2006) (Table). [3] Burton claimed that: (1) the indictment was illegal; (2) a Batson violation had occurred; (3) a juror had misled the Superior Court during voir dire; (4) a juror drank alcohol during the trial; (5) Burton was not allowed to testify; (6) Burton was not allowed to call witnesses; (7) prosecutorial misconduct occurred; (8) his sentence was illegal; (9) his trial counsel was ineffective; and (10) his trial counsel failed to interview and call material witnesses. See State v. Burton, 2008 WL 2359717 (Del. Super. Ct. June 3, 2008). [4] See State v. Burton, 2008 WL 2359717, at *1-6. [5] "Appellant's counsel has reviewed all of the allegations set forth in the Rule 61 Motion and is limiting argument in this opening brief to the fact that [trial counsel] was ineffective by failing to contact, properly interview and subpoena material witnesses for the disputed allegations made by the alleged victim as well as allowing the Appellant to testify during his trial." [6] Sup. Ct. R. 8; Merritt v. State, 219 A.2d 258, 260 (Del. 1966); Draper v. State, 146 A.2d 796, 800 (Del. 1958); see also Gateley v. Gateley, 832 A.2d 1251, 2003 WL 22282584, at *2 n.7 (Del. Oct. 1, 2003) (Table) (declining to review documents presented for the first time on appeal). [7] Compare Merritt, 219 A.2d at 260 (remanding the case with authority and instructions to ascertain the facts) with Draper, 146 A.2d at 800 (refusing to consider new evidence on appeal). [8] See Yancey v. Nat'l Trust Co., Ltd., 712 A.2d 476, 1998 WL 309819 (Del. May 19, 1998) (Table) (Del. 1998) (noting that some degree of leniency should be granted for pro se appeals); see also In re Estate of Hall, 882 A.2d 761, 2005 WL 2473791 (Del. Aug. 26, 2005) (Table) (noting that we allow pro se litigants some leeway).

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3 Md. App. 266 (1968) 238 A.2d 920 MELVIN HENRY GREEN v. WARDEN, MARYLAND HOUSE OF CORRECTION. No. 102, September Term, 1967. Court of Special Appeals of Maryland. Decided February 28, 1968. Before MURPHY, C.J., and ANDERSON, MORTON, ORTH, and THOMPSON, JJ. PER CURIAM: This is an application for leave to appeal from an order filed on July 21, 1967, by Judge Robert I.H. Hammerman, sitting *268 in the Criminal Court of Baltimore, denying relief sought under the Uniform Post Conviction Procedure Act. As stated by Judge Hammerman in his memorandum opinion, the applicant raised the following contentions: 1. That petitioner was the subject of an illegal arrest for the reasons that: a. He was not a resident of the house in which he was arrested, b. The police had no probable cause to arrest him, c. That the narcotics were found in the hall of the home in which he was arrested and he was charged with their possession. 2. That the police gave perjured testimony at the time of trial. 3. That he was not properly represented by his court appointed lawyer. Judge Hammerman stated that: "Petitioner's counsel conceded at the outset and at the conclusion of the hearing that the first two grounds were not proper subjects for review on Post Conviction, that she understood that these issues were raised at the time of trial, and that she was not pressing them at this time." The mere fact of an illegal arrest is not grounds for relief under the Uniform Post Conviction Procedure Act, Slater v. Warden, 233 Md. 609, as the legality of the arrest is immaterial where no fruits of the arrest are introduced into evidence at the trial against the accused; Ogle v. Warden, 236 Md. 425, but where the petitioner alleges, as he seems to do in this case, that evidence was seized as a result of the illegal arrest, this constitutes an allegation of an illegal search and seizure and may properly be raised under the Act. Davis v. Warden, 232 Md. 670; Fennell v. Warden. 236 Md. 423; Austin v. Director, 237 Md. 314. Since this issue was not pressed at the hearing, it can be considered as abandoned. Szukiewicz v. Warden, 1 Md. App. 61. However, we note that the lower court found that there was nothing in the testimony of the applicant to indicate *269 that his arrest was illegal. Since applicant did not carry his burden of proof, the arrest must be considered as legal. Thus, the allegation of an illegal search and seizure would also fail since further evidence to support this contention was not offered. Judge Hammerman states that the rule as to incompetence of counsel is "that it is only when the representation is so deficient as to make a farce out of the trial that an accused is entitled to a new trial." Although this was the former rule in Maryland, the Court of Appeals has expanded this rule in Slater v. Warden, 241 Md. 668, so as to give a more comprehensive definition to that rule. The more preferable rule now is that counsel is incompetent when under all the circumstances of the particular case the petitioner has not been afforded "a genuine and effective representation." Turner v. State, 303 F.2d 507 (4th Cir.1962); Turner v. State, 318 F.2d 852 (4th Cir.1963); Slater v. Warden, supra; Jones v. Warden, 244 Md. 720; Nash v. Warden, 243 Md. 700. This is the rule that is now being followed by the Maryland Court of Special Appeals. Groh v. Warden, 1 Md. App. 674; Charles v. State, 1 Md. App. 222; Norris v. Warden, 1 Md. App. 69; Cherrix v. Warden, 1 Md. App. 65. However, even under this more comprehensive rule, the trial counsel for applicant was not incompetent. Judge Hammerman found that "the court clearly does not find that (counsel) was in any way incompetent or negligent in the performance of his duties as attorney for the petitioner. Quite the contrary in the case. The court feels that (counsel) did a more than adequate job in defending the petitioner, as the testimony clearly demonstrates." As to the second contention, we accept the lower court's finding that this was a bald allegation as no evidence was offered to support it at the hearing. Thus it cannot constitute grounds for relief. McCoy v. Warden, 1 Md. App. 108. Application denied.

818 F.2d 878 Comegysv.V.A. 87-3018 United States Court of Appeals,Federal Circuit. 1/26/87 MSPB, 31 M.S.P.R. 293 VACATED AND REMANDED