# Petric v. State

> Court of Criminal Appeals of Alabama · February 15, 2013 · 157 So. 3d 176

URL: https://www.frixlaw.com/law-library/cases/4817206

## Case

- **Full name:** Steven PETRIC v. STATE of Alabama
- **Court:** Court of Criminal Appeals of Alabama
- **Decided:** February 15, 2013
- **Citations:** 157 So. 3d 176; 2013 Ala. Crim. App. LEXIS 12; 2013 WL 598118
- **Precedential status:** Published
- **Opinion:** Opinion of the court by Burke
- **Judges:** Burke, Herself, Joiner, Kellum, Welch, Windom
- **Cited by:** 9 later opinions in the Frix Law Library

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## Opinion text

BURKE, Judge.
Steven Petrie was convicted of murder made capital because it was committed during a rape in the first degree, see § 13A-5-40(a)(3), Ala.Code 1975. The jury, by a vote of 10 to 2, recommended that Petrie be sentenced to death. The trial court followed the jury’s recommendation. Petrie appeals his conviction and his sentence.
Facts
The State’s evidence tended to show the following. On March 9, 1990, the victim, Toni Lim, was found dead on her bed in the apartment she shared with Martha Milinda Higginbotham. The apartment was located in Homewood, a suburb of Birmingham. Higginbotham discovered Lim’s body after returning home from work at around 8:00 p.m. Lim was alone in the apartment when Higginbotham left for work earlier that day. There were no signs of forced entry into the apartment. Higginbotham testified that Lim had previously told her that a man named “Steven” was going to help Lim fix the brakes on her car. Higginbotham also testified that a man named Steven sometimes gave Lim a ride home from school. However, Higginbotham had never met Steven. Barbara Short testified that in March 1990, she lived with Petrie, whom she had married in January 1990 after a brief courtship, in the Birmingham area.
Lim’s mother testified that she had recovered Lim’s watches and gold chain from Lim’s apartment after her death. However, Lim’s mother also testified that she knew that Lim possessed wedding rings and that they were missing from the apartment and were never recovered. A former property evidence technician for the Homewood Police Department who collected evidence from Lim’s apartment after her death testified that he specifically looked for Lim’s rings after her death but that he never found them.
When Lim was found lying on her bed in her apartment, her body was covered with a blanket, and her head was covered with a pillow. Examination of Lim’s body revealed that she had suffered a stab wound to the back of her neck and a large cut across her throat. Lim was dressed in only a blouse and a brassiere. The brassiere was unlatched in the front, and only one button was buttoned on the blouse. The other buttons on the blouse were intact but unbuttoned. A T-shirt tied loosely around Lim’s neck was soaked with blood. Lim’s hands were tied behind her back with pantyhose. An exercise rope was tied tightly around Lim’s right wrist, and the rope extended down to her ankles, which were tied together with the rope. The rope was tied in such a way that it would tighten if Lim’s legs were straightened. The rope caused abrasions and bruising on certain areas of Lim’s skin. All of Lim’s fingernails were intact. The autopsy of Lim’s body did not reveal any appreciable evidence of trauma to her genitalia. However, the presence of semen was discovered in Lim’s vagina and anus. Also, some round bruises were discovered on Lim’s right leg. Dr. Gary Simmons, the forensic pathologist who performed the autopsy on Lim, testified that the round bruises could have been caused by fingers grabbing Lim’s leg, but he could not be certain what caused these bruises. Dr. Simmons testified that Lim “died from the sharp force entry, mainly the stab wound to the back of her neck and the incised wound to her throat.” (R. 1123.)
In 1990 and again in 1998, ABO blood testing and rudimentary DNA testing were performed on items recovered in and around Lim’s body. The results of that testing excluded several individuals as suspects, but the results did not match the *188 DNA of any person of interest. In 2004, additional DNA testing using more modern techniques revealed that the DNA profile from the semen found in Lim’s body matched the DNA profile found on some of the cigarette butts that were in Lim’s bedroom on the day she was killed.
Debra Kay Dodd, who performs DNA analyses for the Alabama Department of Forensic Sciences, testified that, in June 2006, she received information from the administrator of the national Combined DNA Index System (“CODIS”) 1 that the DNA profile of the semen found in Lim’s body matched the DNA profile of Petrie, who at the time was in prison in Illinois. After receiving oral reference samples from Petrie in August 2006, Dodd tested the samples and generated a DNA profile for Petrie. Dodd found that Petrie’s DNA profile matched the DNA profile of the semen found in Lim’s body and the DNA profile found on some of the cigarette butts that were found in Lim’s bedroom.
After Dodd had finished testifying, at the request of defense counsel, the defense and the prosecution agreed to admit into evidence a laboratory report prepared by a DNA expert for the defense. (R. 1279-82, 1296-97.) The report was marked as both a State’s exhibit and a defendant’s exhibit. (C. 532.) The results of that report did not contradict the results of Dodd’s testing. Both Dodd and the expert for the defense concluded that the DNA profile of the semen donor on the vaginal swab of Lim’s body matched Petrie’s DNA profile. (R. 1243-44, 1250-51; C. 537-38.) The defense expert also concluded that Petrie’s DNA was present in stains on a blanket recovered from the crime scene. (C. 537.) Additionally, the laboratory report prepared by the expert for the defense stated that “[t]he DNA profile obtained from the swab taken from the right hand fingernail clippings is a mixture” and that “Steven Petrie is included in this mixture.” (C. 538.)
At trial, the State presented evidence of other bad acts of Petrie. Gerald Gear, who was a detective for the Joliet, Illinois, police department in 1994, gave testimony concerning Debra O’Rourke, a white female who was found murdered in her apartment in Illinois at around 10:00 a.m. on July 6,1994. The last time that anyone had communicated with O’Rourke was on July 3,1994. Gear testified that O’Rourke was found lying on her stomach across the bed in her bedroom. The bedroom had been ransacked. O’Rourke was covered with a blanket and there was a pillow on top of her head. Also, a washcloth was lying on O’Rourke’s shoulder. O’Rourke’s blood had coagulated on another pillow near her head. A T-shirt was tied around O’Rourke’s head. O’Rourke’s arms were behind her back, and she had markings on her wrists and ankles that indicated that she had been bound with ligatures. There were no signs of forced entry into O’Rourke’s apartment. Gear testified that his investigation revealed that O’Rourke was dating two men at the time of her death. One of those men was Petrie, who was the maintenance man at O’Rourke’s apartment complex. According to Gear, telephone records revealed that a call was made from O’Rourke’s residence to Pe-trie’s residence at around 5:10 p.m. on July 4, 1994. Another telephone call was made from O’Rourke’s residence to the residence of Petrie’s ex-girlfriend at 12:06 a.m. on July 5, 1994. Both the State and the defense stipulated that Petrie used or attempted to use O’Rourke’s ATM card on *189 several occasions on July 5, 1994. A wedding ring and a set of keys were missing from O’Rourke’s apartment. The keys were never recovered, but the ring was eventually found in Petrie’s possession.
Dr. Joseph Sapala performed the autopsy on O’Rourke’s body. At the trial in the present case, Dr. Sapala testified that O’Rourke was found nude on her bed and that her head was covered with blood. Dr. Sapala further testified that O’Rourke had a gag in her mouth and a shirt tied tightly around her neck and head. Dr. Sapala also noted that O’Rourke had bruising around her wrists that could have been caused by being bound with ligatures or handcuffs. According to Dr. Sapala, O’Rourke died from strangulation and stab wounds to her neck.
DNA testing was performed on certain items that were recovered from O’Rourke’s apartment. Those items included the washcloth that was found lying on O’Rourke’s shoulder, O’Rourke’s bed sheet, and a pillowcase. A stain on the washcloth contained a mixture of blood and semen, and the DNA profile identified on that stain matched Petrie’s DNA profile. The pillowcase contained a semen stain, and the DNA profile of that stain also matched Petrie’s DNA profile. The bedsheet contained two semen stains. The DNA profile identified on those two stains matched the DNA profile of the other man O’Rourke was dating at the time of her death.
In light of the evidence concerning O’Rourke’s death and the use of her ATM card, Petrie was tried for murder and robbery in Illinois. Petrie was convicted of the robbery, but he was acquitted of murder. Petrie was not charged with rape in the situation involving O’Rourke.
Doug Finch, a detective with the Home-wood Police Department who reopened the present case in 2004, requested the additional DNA testing on the items that were recovered in and around Lim’s body, and he asked that the results of that testing be entered into the CODIS. When the CO-DIS revealed that the DNA profile of the semen found in Lim’s body matched the DNA profile of Petrie, Detective Finch traveled to Illinois to collect DNA samples from Petrie and to further investigate Pe-trie. During that investigation, Detective Finch viewed photographs of the O’Rourke crime scene. At trial, Detective Finch was asked to describe the similarities between the O’Rourke crime scene and the Lim crime scene. Detective Finch testified that the personal items in the victims’ bedrooms had been ransacked; that the victims’ bodies were nude; that ligatures or some type of restraints had been used to restrain the victims; that the victims’ heads were covered with a pillow; that there were stab wounds to the back of the victims’ necks; that there were incisions or cut marks on the victims’ necks; that Pe-trie’s semen was present at the scene of both crimes; that the victims’ keys and wedding rings were missing; that O’Rourke and Lim were similar in appearance; that there were no signs of forced entry into the victims’ apartments; and that the victims lived in second-floor apartments.
The State also presented evidence of an incident that occurred in Illinois involving Petrie and Tina Hillock. At trial, Hillock testified that she dated Petrie from October 1993 to June 1994. In June 1994, Hillock told Petrie that she did not want to see him anymore. On August 13, 1994, Hillock left her second-floor apartment for the afternoon, and she locked the door to the apartment when she left. Hillock returned to her apartment later that evening. As soon as Hillock entered her apartment, she- sensed that something was wrong and grabbed a knife from the kitch *190 en to protect herself. Petrie was inside the apartment, and he immediately confronted Hillock and began screaming at her. Petrie took the knife away from Hillock and threw it into the kitchen sink. A short time later, Hillock attempted to leave the apartment through the front door, but as soon as she opened the door, Petrie grabbed her and threw her onto the couch. Petrie told Hillock that “if he can’t have [her] nobody else would.” (R. 1494.) Petrie then put his hands around Hillock’s throat. Then, in an attempt to prevent Petrie from hurting her, Hillock falsely told Petrie that she was pregnant. At that time, according to Hillock, “[Petrie] got up off of [her] and he punched the wall and put a hole through the wall.” (R. 1495.) Hillock then made a second attempt to leave the apartment, but again Petrie grabbed her and threw her onto the couch. A short time later, in response to a call that had been made by a third party, police officers arrived at Hillock’s apartment. After the officers talked to Hillock, they arrested Petrie. Hillock then went with the officers to the police station.
Petrie’s vehicle was discovered parked about two blocks from Hillock’s apartment. A bag containing some of Hillock’s undergarments and jewelry was discovered inside Petrie’s vehicle. Hillock testified that she had not given Petrie permission to enter her apartment or to take her personal property.
After filing charges against Petrie and obtaining a protection order, Hillock returned to her apartment. When Hillock returned, she discovered a roll of duct tape and the belt to her bathrobe lying in her son’s bedroom. Hillock testified that neither she nor her children had placed those items in that location.
During cross-examination, Hillock admitted that during a preliminary hearing in an Illinois court in 1994, she gave a completely different account of what had occurred on August 13, 1994. During that hearing, Hillock testified that the violent incident in her apartment involving Petrie never happened. Hillock also asked that the charges against Petrie in Illinois to be dropped. In the present case, Hillock testified that she lied to the Illinois court because she was “terrified” of Petrie and was afraid that he would harm her. (R. 1512.)
One of the officers that arrested Petrie for assaulting Hillock testified that as he was booking Petrie, the officer removed three rings from the pocket of Petrie’s pants. Hillock identified two of the rings as belonging to her. At trial, the third ring was identified as the ring that was missing from O’Rourke’s apartment.
The defense did not present any testimony to the jury during the guilt phase of the trial.
Discussion
In his brief to this Court, Petrie raises several issues that were not first raised in the trial court; thus, those issues were not preserved for appellate review. Nevertheless, because Petrie was sentenced to death, his failure to raise issues in the trial court does not prevent this Court from reviewing those issues for plain error.
Rule 45A, Ala. R.App. P., provides:
“In all cases in which the death penalty has been imposed, the Court of Criminal Appeals shall notice any plain error or defect in the proceedings under review, whether or not brought to the attention of the trial court, and take appropriate appellate action by reason thereof, whenever such error has or probably has adversely affected the substantial right of the appellant.”
In Wilson v. State, 142 So.3d 732, 750 (Ala.Crim.App.2012), this Court stated:
*191 “‘[T]he plain-error exception to the contemporaneous-objection rule is to be “used sparingly, solely in those circumstances in which a miscarriage of justice would otherwise result.” ’ United States v. Young, 470 U.S. 1, 15 , 105 S.Ct. 1038 , 84 L.Ed.2d 1 (1985) (quoting United States v. Frady, 456 U.S. 152 , 163 n. 14, 102 S.Ct. 1584 , 71 L.Ed.2d 816 (1982)). ‘The standard of review in reviewing a claim under the plain-error doctrine is stricter than the standard used in reviewing an issue that was properly raised in the trial court or on appeal.’ Hall v. State, 820 So.2d 113, 121 (Ala.Crim.App.1999). Under the plain-error standard, the appellant must establish that an obvious, indisputable error occurred, and he must establish that the error aversely affected the outcome of the trial. See Ex parte Walker, 972 So.2d 737, 752 (Ala.2007) (recognizing that the appellant has the burden to establish prejudice relating to an issue being reviewed for plain error); Thomas v. State, 824 So.2d 1, 13 (Ala.Crim.App.1999) (recognizing that to rise to the level of plain error, an error must have affected the outcome of the trial), overruled on other grounds, Ex parte Carter, 889 So.2d 528 (Ala.2004). That is, the appellant must establish that an alleged error, ‘ “ ‘not only seriously affeet[ed] [the appellant’s] “substantial rights,” but ... also ha[d] an unfair prejudicial impact on the jury’s deliberations.’ ” ’ Ex parte Brown, 11 So.3d 933, 938 (Ala.2008) (quoting Ex parte Bryant, 951 So.2d 724, 727 (Ala.2002), quoting in turn Hyde v. State, 778 So.2d 199, 209 (Ala.Crim.App.1998)). Only when an error is ‘so egregious ... that [it] seriously affects the fairness, integrity or public reputation of judicial proceedings,’ will reversal be appropriate under the plain-error doctrine. Ex parte Price, 725 So.2d 1063, 1071-72 (Ala.1998) (internal citations and quotations omitted). Although the ‘failure to object does not preclude [appellate] review in a capital case, it does weigh against any claim of prejudice.’ Ex parte Kennedy, 472 So.2d 1106, 1111 (Ala.1985) (citing Bush v. State, 431 So.2d 563, 565 (1983)) (emphasis in original). As the United States Supreme Court has noted, the appellant’s burden to establish that he is entitled to reversal based on an unpre-served error ‘is difficult, “as it should be.” ’ Puckett v. United States, 556 U.S. 129,135 , 129 S.Ct. 1423 , 173 L.Ed.2d 266 (2009) (quoting United States v. Dominguez Benitez, 542 U.S. 74, 83, n. 9 , 124 S.Ct. 2333 , 159 L.Ed.2d 157 (2004)).”
Guilt-Phase Issues
I.
On appeal, Petrie first argues that the trial court erred by allowing evidence of the August 13,1994, incident involving Hillock. Petrie alleges that the admission of that evidence violated Rule 404(b), Ala. R. Evid. The State responds that the trial court did not exceed its discretion by allowing the evidence concerning Hillock because, the State says, that evidence was relevant to show Petrie’s identity and to show that he acted pursuant to a common plan, scheme, or design.
In Irvin v. State, 940 So.2d 331 (Ala.Crim.App.2005), this Court stated:
“ ‘The question of admissibility of evidence is generally left to the discretion of the trial court, and the trial court’s determination on that question will not be reversed except upon a clear showing of abuse of discretion.’ Ex parte Loggins, 771 So.2d 1093, 1103 (Ala.2000). This is equally true with regard to the admission of collateral-acts evidence. See Davis v. State, 740 So.2d 1115, 1130 (Ala.Crim.App.1998). Moreover, ‘ “[a] trial court will not be placed in error for *192 assigning the -wrong reason for a proper ruling, if that ruling is correct for any reason.” ’ Peraita v. State, 897 So.2d 1161, 1183 (Ala.Crim.App.2003), aff'd, 897 So.2d 1227 (Ala.2004) (quoting Nicks v. State, 521 So.2d 1018, 1030-31 (Ala.Crim.App.1987), aff'd, 521 So.2d 1035 (Ala.), cert. denied, 487 U.S. 1241 , 108 S.Ct. 2916 , 101 L.Ed.2d 948 (1988)).”
940 So.2d at 345 .
Rule 404(b), Ala. R. Evid., provides:
“Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show action in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident, provided that upon request by the accused, the prosecution in a criminal case shall provide reasonable notice in advance of trial, or during trial if the court excuses pretrial notice on good cause shown, of the general nature of any such evidence it intends to introduce at trial.”
“[T]he common plan, scheme, or design exception is ‘essentially coextensive with the identity exception,’ and ‘applies only when identity is actually at issue.’ ” Lewis v. State, 889 So.2d 623, 661 (Ala.Crim.App.2003) (quoting Ex parte Darby, 516 So.2d 786, 789 (Ala.1987), and Campbell v. State, 718 So.2d 123, 128-29 (Ala.Crim.App.1997)). Concerning the identity exception to the general exclusionary rule, this Court has stated:
“Collateral-act evidence is admissible to prove identity only when the identity of the person who committed the charged offense is in issue and the charged offense is committed in a novel or peculiar manner. 1 Charles W. Gamble, McElroy’s Alabama Evidence § 69.01(8) (5th ed.1996); Ex parte Arthur, 472 So.2d 665 (Ala.1985); Johnson v. State, 820 So.2d 842, 861 (Ala.Crim.App.2000); Tyson v. State, 784 So.2d 328, 344 (Ala.Crim.App.), aff'd, 784 So.2d 357 (Ala.2000). ‘Under the identity exception to the general exclusionary rule prohibiting the admission of other or collateral crimes as substantive evidence of the guilt of the accused, the prior crime is not relevant to prove identity unless both that and the now-charged crime are “signature crimes” having the accused’s mark and the peculiarly distinctive .modus operandi so that they may be said to be the work of the same person.’ Bighames v. State, 440 So.2d 1231, 1233 (Ala.Crim.App.1983). ‘[E]vi-dence of a prior crime is admissible only when the circumstances surrounding the prior crime and those surrounding the presently charged crime “exhibit such a great degree of similarity that anyone viewing the two offenses would naturally assume them to have been committed by the same person.”’ Ex parte Arthur, 472 So.2d at 668 (quoting Brewer v. State, 440 So.2d 1155, 1161 (Ala.Crim.App.1983)). See also Mason v. State, 259 Ala. 438 , 66 So.2d 557 (1953); and Govan v. State, 40 Ala.App. 482 , 115 So.2d 667 (1959) (recognizing that the identity exception is applicable only where both the prior crime and the charged offense were committed in the same special or peculiar manner).
“When extrinsic offense evidence is introduced to prove identity, the likeness of the offenses is the crucial consideration.”
Irvin, 940 So.2d at 347 .
In the present case, the defense’s theory was that Petrie had consensual sex with Lim but that he was not the person who killed her. Thus, the identity of Lim’s killer was at issue. Considering there was no eyewitness to Lim’s murder, it was *193 necessary for the State to present other evidence proving the identity of the killer. That evidence included Petrie’s collateral bad acts involving Hillock and O’Rourke. 2 Like Hillock and O’Rourke, Lim was a woman who lived in a second-floor apartment. Like the situations involving Hillock and O’Rourke, the person who committed the crime against Lim entered her apartment without any signs of a forced entry. Like Hillock and O’Rourke, there was evidence indicating that Lim had a prior relationship with Petrie. In all three situations, the women’s rings were taken while other personal property was left behind. Further, the State presented evidence indicating that Lim and O’Rourke had been bound with ligatures and that each murdered woman was discovered in a bedroom of her apartment. There was evidence indicating that before Petrie assaulted Hillock, he placed a roll of duct tape and the belt from her robe in one of her bedrooms. A fair inference is that those items were to be used to bind Hillock in the bedroom. When comparing the likeness of the offenses against Hillock and Lim, the fact that Petrie’s acts against Hillock were stopped before he had an opportunity to bind her in the bedroom does not prevent the trial court from considering evidence indicating that Petrie intended to bind Hillock in the bedroom. We conclude that, considering all the similarities between the crime against Lim and the acts against Hillock, the trial court did not exceed its discretion in determining that the evidence of Petrie’s collateral bad acts indicated a distinctive pattern of behavior by him. Because the evidence indicated a particular method of operating, the trial court did not exceed its discretion in finding that the evidence of Petrie’s bad acts against Hillock was admissible under Rule 404(b) as proof of the identity of Lim’s killer.
Also, although Petrie does not specifically argue that the probative value of Hillock’s testimony was substantially outweighed by undue prejudice to Petrie resulting from the testimony, we recognize that “not only must it be determined that the other offenses are material and relevant to an issue other than the character of the accused and fall within an exception to the exclusionary rule, but the probative value must not be substantially outweighed by undue prejudice.” Averette v. State, 469 So.2d 1371, 1373-74 (Ala.Crim.App.1985). See also Rule 403, Ala. R. Evid. (providing that “[although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence”).
This Court has stated:
“ ‘Judicial inquiry does not end with a determination that the evidence of another crime is relevant and probative of a necessary element of the charged offense. It does not suffice simply to see if the evidence is capable of being fitted within an exception to the rule. Rather, a balancing test must be applied. The evidence of another similar crime must not only be relevant, it must also be reasonably necessary to the government’s case, and it must be plain, clear, and conclusive, before its probative value will be held to outweigh its potential prejudicial effects.’ United States v. *194 Turquitt, 557 F.2d 464, 468-69 (5th Cir.1977) (citations omitted).
“However, it is ‘only when the probative value of evidence is “substantially outweighed by the danger of unfair prejudice,” ... that relevant evidence should be excluded.’ United States v. Bailleaux, 685 F.2d 1105, 1111 (9th Cir.1982) (emphasis in original). ‘[T]he probative value of the evidence of other offenses must also be balanced against its “prejudicial nature” to determine its admissibility. “Prejudicial” is used in this phrase to limit the introduction of probative evidence of prior misconduct only when it is unduly and unfairly prejudicial.’ State v. Daigle, 440 So.2d 230, 235 (La.Ct.App.1983).
‘“Of course, “prejudice, in this context, means more than simply damage to the opponent’s cause. A party’s case is always damaged by evidence that the facts are contrary to his contention; but that cannot be ground for exclusion. What is meant here is an undue tendency to move the tribunal to decide on an improper basis, commonly, though not always, an emotional one.” State v. Hurd, Me., 360 A.2d 525 , 527 n. 5 (1976), quoting McCormick, Handbook on the Law of Evidence § 185 at 439 n. 31 (2nd ed.1972).’
“State v. Forbes, 445 A.2d 8, 12 (Me.1982).”
Averette, 469 So.2d at 1374 . As with most questions concerning the admissibility of evidence, “[t]he power to make this determination [whether the probative value of relevant evidence is substantially outweighed by danger of unfair prejudice] is vested in the trial court,” and “we will not disturb such determination unless it is clearly abuse of discretion.” Hayes v. State, 717 So.2d 30, 37 (Ala.Crim.App.1997).
As explained earlier, Hillock’s testimony was relevant to prove the identity of Lim’s killer. Because the identity of Lim’s killer was very much at issue, Hillock’s testimony was reasonably necessary to the State’s case. Of course, Hillock’s testimony was prejudicial to Petrie’s case because her testimony was contrary to Petrie’s theory of the case, but the fact that Hillock’s testimony was prejudicial to Petrie’s case does not mean that Hillock’s testimony was unduly or’unfairly prejudicial. Hillock’s testimony was admissible to show that in killing Lim, Petrie acted pursuant to a common plan, scheme, or design. Other than Hillock’s testimony and the evidence concerning O’Rourke, the record does not contain any suggestion that there was a less prejudicial means of proving the identity of Lim’s killer. See R.D.H. v. State, 775 So.2d 248, 254 (Ala.Crim.App.1997) (stating that “[o]ne of the specific criterion to be used, in deciding when prejudicial effect substantially outweighs probative value, is whether or not there exist less prejudicial means of proving the same thing”). Therefore, we find that the trial court did not clearly abuse its discretion in determining that the probative value of Hillock’s testimony was not substantially outweighed by the danger of unfair prejudice.
II.
Next, Petrie argues that, in addition to allowing Hillock to testify concerning the August 13, 1994, incident, the trial court erroneously allowed Hillock to testify about Petrie’s character and about other collateral bad acts. Petrie alleges that the admission of this testimony violated Rule 404, Ala. R. Evid. Specifically, Petrie contends that, in violation of Rule 404(a), the trial court erroneously allowed Hillock to testify that “he was very, very aggressive” and that he had stalked her. Petrie also *195 contends that, on redirect examination, the trial court erroneously allowed Hillock to testify about a collateral bad act that occurred “just prior to” the August 18, 1994, assault. That incident involved Petrie’s taking the keys to Hillock’s apartment and making a copy of them without her permission. Petrie alleges that the State did not provide him with proper notice of that collateral-bad-act evidence, as required by Rule 404(b), Ala. R. Evid.
A.
Concerning Hillock’s statements that Petrie “was very, very aggressive” and that he had stalked her, Petrie alleges that the admission of those statements violated Rule 404(a), Ala. R. Evid., which provides that “[ejvidence of a person’s character or a trait of character is not admissible for the purpose of proving action in conformity therewith on a particular occasion.” Specifically, Petrie states that “[t]here is a substantial danger that the jury impermis-sibly inferred from this improperly admitted evidence that Petrie killed Lim because he was of a character to do so.” (Petrie’s brief, at 42.)
Petrie’s allegation is based upon the following exchange that occurred during Hillock’s testimony at trial:
“[Hillock]: [Petrie and I] started dating, I think it was, in October; and then in June of the following year I told him I didn’t want to see him anymore.
“[Prosecutor]: And what were the reasons why you didn’t want to see him anymore?
“[Hillock]: There were some things that came up in the relationship that made me very uncomfortable. He was very, very aggressive—
“[Defense counsel]: Objection, Your Honor. Nonresponsive.
“The Court: Well, I want to make sure that we’re limited to the incident in question. All right. So let’s limit our questioning to that.
“[Prosecutor]: Yes, sir. I’m just trying to establish that she did break up with him.
“[Defense counsel]: That’s pretty obvious, Your Honor.
“The Court: I think she testified to that. All right.”
(R. 1484-85) (emphasis added).
Later during Hillock’s testimony, the following exchange occurred concerning her attempt to call her brother for help during the August 13,1994, incident:
“[Prosecutor]: And so what did you do next?
“[Hillock]: I called my brother’s house. And I said — I thanked him for inviting me over for the barbecue.
“[Prosecutor]: Now, had you been at your brother’s house at the barbecue?
“[Hillock]: No. No.
“[Prosecutor]: Why did you say these things to your brother?
“[Hillock]: Because my family knew that Steve had been stalking me.
“[Defense counsel]: Objection, Your Honor. Nonresponsive.
“[Defense cocounsel]: Objection. Nonresponsive and hearsay.
“The Court: I’m going to sustain. Let’s not go into that.
“[Hillock]: Okay.
“The Court: Continue with what happened.
“[Defense cocounsel]: Move to strike.
“[Defense counsel]: Move to strike, Judge.
“The Court: Granted. Let’s disregard that.”
(R. 1492-93) (emphasis added).
There was no other testimony concerning the alleged stalking or Petrie’s alleged *196 prior aggression. Later, Hillock testified that she had obtained a protective order against Petrie, and, in Petrie’s brief on appeal, he insinuates that the testimony concerning the protective order was related to the testimony concerning the alleged stalking and his alleged prior aggression. However, it is clear from the context of the testimony concerning the protective order that the protective order was issued based on the August 13, 1994, incident at Hillock’s apartment and that the protective order was not related to the alleged stalking or Petrie’s alleged prior aggression. The testimony concerning the protective order did not repeat or highlight the testimony concerning the alleged stalking or Petrie’s alleged prior aggression. (R. 1498-99.)
We note that the specific bases of Pe-trie’s objections were that Hillock was being “nonresponsive” to the prosecutor’s questions or that her response was hearsay. The objections were not based on Rule 404, Ala. R. Evid.
“[I]n order for this Court to review an alleged erroneous admission of evidence, a timely objection must be made to the introduction of the evidence, specific grounds for the objection should be stated, and a ruling on the objection must be made by the trial court.” Shouldis v. State, 953 So.2d 1275, 1284 (Ala.Crim.App.2006). Additionally, “[t]he statement of specific grounds of objection waives all grounds not specified.” Wilson v. State, 142 So.3d 732, 761 (Ala.Crim.App.2012). Because Petrie did not make an objection to Hillock’s statements based on Rule 404, he did not preserve this issue for appellate review; thus, this issue will be reviewed for plain error only. See Rule 45A, Ala. R.App. P.; Wilson, supra.
On appeal, Petrie has not met his difficult burden of establishing that “an obvious, indisputable error occurred” and that “the error aversely affected the outcome of the trial.” Wilson, 142 So.3d at 750 . Petrie has failed to meet his burden of establishing plain error for two alternative reasons: (1) He has failed to overcome the presumption against error when the trial court sustains the objection to the testimony and/or instructs the jury to disregard the testimony, and (2) even if the testimony was not removed from the jury’s consideration by the trial court’s actions, Pe-trie has failed to show that the admission of the statements rose to the level of plain error.
This Court has stated:
“ ‘There is a prima facie presumption against error when the trial court immediately charges the jury to disregard improper remarks or answers.’ Garrett v. State, 580 So.2d 58, 59 (Ala.Crim.App.1991).
“ ‘ “The general rule is that prejudicial statements, even though improper, are considered capable of being eradicated by the trial court in sustaining objections thereto or by appropriate instructions to the jury or both. Meredith v. State, 370 So.2d 1075 (Ala.CrimApp.), cert. denied, 370 So.2d 1079 (Ala.1979).” Bui v. State, 551 So.2d 1094 (Ala.Crim.App.1988),
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“Holladay v. State, 549 So.2d 122, 131 (Ala.Crim.App.1988), aff'd, 549 So.2d 135 (Ala.1989).”
Walker v. State, 932 So.2d 140, 153 (Ala.Crim.App.2004).
Furthermore, “[w]here the trial court immediately instructs the jury not to consider a fact, that instruction, in effect, removes or excludes that matter from the jury’s consideration, and the prejudicial effect of the statement is deemed to be cured by such instruction.” Soriano v. *197 State, 527 So.2d 1367, 1371 (Ala.Crim.App.1988).
Concerning Hillock’s statements that Petrie “was very, very aggressive” and that he had stalked her, though Pe-trie’s objections to those statements were not based on Rule 404, the trial court nevertheless sustained Petrie’s objections to those statements. In response to Pe-trie’s objection to Hillock’s statement that Petrie “was very, very aggressive,” the trial court instructed the prosecutor to limit his questioning to the August 13, 1994, incident. In response to Petrie’s objection to Hillock’s statement that Petrie had stalked her, the trial court explicitly stated that it was “going to sustain” the objection and instructed the prosecutor to “not go into that.” Then, after defense counsel moved to strike that statement, the trial court immediately gave an instruction to disregard the statement. Therefore, we will presume that any prejudice that resulted from either statement was eradicated when the trial court sustained the objections to the statements. Furthermore, the statement concerning the alleged stalking was explicitly removed from the jury’s consideration, and any prejudicial effect of that statement was cured when the trial court immediately instructed the jury to disregard the statement. Thus, based on the trial court’s responses to Petrie’s objections, there is a prima facie presumption that no error occurred, much less plain error. We find that Petrie has failed to set forth anything on appeal that would overcome that presumption or to set forth anything that would meet his difficult burden of establishing that an obvious, indisputable error occurred and that the error aversely affected the outcome of the trial.
Moreover, even if Hillock’s statements had been improperly admitted into evidence, the admission of the statements did not rise to the level of plain error because the statements did not seriously affect Pe-trie’s substantial rights or the fairness and integrity of the proceedings, nor did they have an unfair prejudicial impact on the jury’s deliberations.
In Clark v. State, 896 So.2d 584 (Ala.Crim.App.2000), the defendant was convicted of murder and was sentenced to death. At trial, an investigator testified regarding a ticket citation he found when he inventoried the defendant’s wallet after he was arrested. Without any objection from the defendant, the investigator testified that the ticket was for a prior domestic disturbance. On appeal, this Court stated that this evidence “falls squarely within the exclusionary rule prohibiting evidence of an accused’s bad character” and “it does not come within any of the exceptions set out in Rule 404(b).” Clark, 896 So.2d at 622 . Thus, “it was error to allow this evidence to be presented to the jury.” Id. However, this Court further held that the error in admitting the testimony regarding the domestic-disturbance citation did not rise to the level of plain error. In reaching that decision, this Court noted that the domestic disturbance was not mentioned again at trial and that the reference to the ticket was incidental because “it came in the form of a nonresponsive answer by [the investigator] to the question by the prosecutor regarding whether there were any bills in [the defendant’s] wallet.” Clark, 896 So.2d at 624 . This Court stated that “‘[i]t is inconceivable that a jury could have been influenced, under the circumstances here, to convict [the defendant] of [a] crime[ ] of the magnitude charged here because of an oblique reference to a prior [domestic dispute].’ ” Id. (quoting Thomas v. State, 824 So.2d 1, 20 (Ala.Crim.App.1999)).
Likewise, in the present case, Hillock’s references to Petrie’s prior aggression and to the alleged stalking, made only in pass *198 ing and in the form of nonresponsive answers to the prosecutor’s questions, were incidental. Furthermore, neither Petrie’s alleged prior aggression during his relationship with Hillock nor the alleged stalking were mentioned again at trial. Therefore, we hold that these oblique references did not seriously affect Petrie’s substantial rights or the fairness and integrity of the proceedings, nor did they have an unfair prejudicial impact on the jury’s deliberations; thus, we find no plain error in the admission of the statements.
B.
Next, Petrie contends that, on redirect examination, the trial court erroneously allowed Hillock to testify about a collateral bad act that had occurred “just prior to” the August 13, 1994, assault. That incident involved Petrie’s taking the keys to Hillock’s apartment and making a copy of them without her permission. Pe-trie alleges that the State did not provide him with proper notice of that collateral-bad-act evidence under Rule 404(b), Ala. R. Evid., which states that “upon request by the accused, the prosecution in a criminal case shall provide reasonable notice in advance of trial, or during trial if the court excuses pretrial notice on good cause shown, of the general nature of any [collateral-bad-act] evidence it intends to introduce at trial.”
Before trial, Petrie’s counsel requested that the State provide notice of the general nature of any Rule 404(b) evidence it intended to introduce at trial. In response, the State informed the defense that the State intended to introduce, among other things, evidence that “approximately four years after the murder of Toni Lim, the Defendant stalked, threatened and made preparations for the restraint and murder of a former girlfriend.” (C. 190.) In the State’s brief in support of its notice to introduce Rule 404(b) evidence, the State informed the defense that the State was seeking to introduce, among other things, evidence that “shortly after the murder of Debra O’Rourke, the defendant stalked, threatened, and made preparations for the restraint and murder of Tina Hillock in Will County, Illinois. The State would further show the theft by defendant of Ms. Hillock’s lingerie, keys, and wedding ring.” (C. 195.)
During the State’s direct examination of Hillock at trial, she testified that she locked her apartment when she left it on August 13, 1994, but when she returned to her apartment later that day, Petrie was inside the apartment without her permission. However, during the defense’s cross-examination of Hillock, she conceded that during a 1994 preliminary hearing in Illinois, she testified that she had invited Petrie to come to her apartment on August 13, 1994, and that she had permitted him to come inside. At trial, Hillock also stated that her 1994 testimony was false. After defense counsel had completed cross-examination, outside the presence of the jury, the State moved the trial court to allow Hillock to testify concerning the incident in which Petrie made a copy of the keys to Hillock’s apartment without her permission.. The State desired to present this.evidence to rebut the testimony elicited on cross-examination and to show that Petrie had the means to enter Hillock’s apartment without her permission and without forcing his way into the apartment. Defense counsel objected to the presentation of this evidence on the ground that the prosecution had not provided the defense with reasonable notice of the evidence under Rule 404(b). Specifically, defense counsel stated:
“Well, first, as to this incident they are referring to, obviously I don’t know that we know about that. But if that is in the nature and companion with Ms. *199 Hillock, and Ms. Hillock is being called [Rule] 404(b) evidence, then we are supposed to — and have written a motion asking for [Rule] 404(b) evidence. We are supposed to be given some type of timely notice about that incident.
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“Well, once again, I’m not sure about what incident that is and what you’re referring to or any factual basis for that incident. We, once again, would look upon that as [Rule] 404(b) evidence that we previously have not received or been notified of. And so certainly we haven’t had an opportunity to look or investigate or even know really what they are talking about with fact or basis. And so, once again, we’d ask that it be excluded.”
(R. 1555-57.)
The prosecutor then pointed out that the defense was provided with a copy of the transcript of Hillock’s 1994 testimony and that, in that testimony, Hillock talks about the incident in which Petrie made a copy of the keys to her apartment without her permission. The prosecutor stated:
“Okay. Your Honor, the transcript that we gave to the defense counsel, Ms. Hillock’s transcript. And it’s kind of broken up throughout the conversation.
“But she first — in page 4 of the transcript, she talks about — I’m sorry. Page 8, Ms. Hillock states that: ‘In June of that year, I moved to Orland Park. He came with and helped me to move. And as I was unpacking my boxes and stuff, he says to me, your car is really dirty. I’m going to take your car and get it washed. So he took my car to get it washed. I didn’t realize actually what he was doing.’
“Okay. And then it’s kind of — it kind of breaks up. And then she goes back to say — they talk about some other matters. But on page 5, she says: T went over to my ex-husband’s. I had found out from [Petrie] that he had made copies of my keys,’ referring back to the time that he took her car to go get it washed. She says, ‘That’s how he got into my apartment, so immediately I called the locksmith.’ ”
(R. 1558-59.)
After those statements by the prosecutor, Petrie’s counsel did not make any further argument concerning this issue. The trial court then ruled that Hillock would be allowed to testify concerning the incident in which Petrie made a copy of the keys to her apartment without her permission.
After the jury was seated but before Hillock gave any testimony on redirect examination, defense counsel stated that “at this time we would renew our previous motion and assign those grounds and objections.” The trial court responded: “I’ll note that motion and overrule the motion and allow the State to proceed.” (R. 1568.) On redirect examination, Hillock testified, in part, as follows:
“[Prosecutor]: .... Did [Petrie] ever specifically take some keys from you?
“[Hillock]: Yes, he did.
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“[Prosecutor]: Can you tell us about that?
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“[Hillock]: So he said that my car looked dirty and that he would take it to get it washed, which I thought was incredibly nice.
“[Prosecutor]: Now, did he do that?
“[Hillock]: Yes, he did.
“[Prosecutor]: Take your car?
“[Hillock]: He took my car to get it washed.
“[Prosecutor]: And he took your keys?
“[Hillock]: Yes.
*200 “[Prosecutor]: Then what happened?
“[Hillock]: He came back, and I didn’t think anything of it.
“[Prosecutor]: Was there a point later in time that you learned what he had done with your keys when he took your car to be washed?
“[Hillock]: Yes.
“[Prosecutor]: And how did you learn that?
“[Hillock]: I had come home, and I walked into the house and I just noticed things were missing. The key to my grandfather clock was missing, my camera, my telephone book, a bunch of my little pigs — I collect pigs. And then when I looked in my undergarment drawer, my underthings — some of my underthings — were missing and then my mom and dad’s wedding rings.
“[Prosecutor]: Now, at some point did you confront the defendant about this?
“[Hillock]: Yes. I contacted Steve and I said, “Were you in my apartment?’ And he said, ‘No, I wasn’t.’ And I said, ‘All I want back are my parents’ rings. If I don’t get back my mom and dad’s wedding rings, my brothers are going to be very upset and they will make sure they get those back.’ So he said—
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“[Prosecutor]: Let me ask you this. Did he say anything about what he did with your keys when he took your car to be washed?
“[Hillock]: Yes. When he—
“[Prosecutor]: What did he say?
“[Hillock]: He said that he had made, a copy of my keys without my permission.
“[Prosecutor]: And did he say anything about using those to get into your apartment without your permission?
“[Hillock]: Yes. He had used the keys in order to get into the apartment and take those items.”
(R. 1571-74.)
On appeal, to support his argument that the State did not provide him with proper notice under Rule 404(b), Petric relies on Ex parte Lawrence, 776 So.2d 50 (Ala.2000). In Lawrence, before trial, the prosecutor notified defense counsel that the State intended to introduce evidence of the defendant’s nine misdemeanor convictions for negotiating worthless instruments. During re-cross-examination at trial, the prosecutor, without any notice, asked the defendant about other instances of negotiating worthless instruments for which she had not been convicted. Based on the prosecutor’s failure to provide the defense notice under Rule 404(b), defense counsel objected to the questioning about other instances of negotiating worthless instruments and moved for a , mistrial. The State responded that it was not required to give notice under Rule 404(b) because, the State argued, the evidence was admissible as rebuttal evidence. The trial court determined that the evidence regarding the other instances of negotiating worthless instruments was not admissible as rebuttal evidence but denied defense counsel’s motion for a mistrial and gave the jury a curative instruction. On appeal, the Alabama Supreme Court held:
“Even if the evidence of Lawrence’s other acts of negotiating worthless instruments had been admissible as rebuttal evidence, the State’s failure to provide notice that it would offer such evidence renders it inadmissible. Rule 404(b), Ala. R. Evid., is identical to Federal Rule 404(b). The Advisory Committee Note to the 1991 Amendment of Rule 404(b) states:
“ ‘The amendment requires the prosecution to provide notice, regard *201 less of how it intends to use the extrinsic act evidence at trial, ie., during its case-in-chief, for impeachment, or for possible rebuttal.... Because the notice requirement serves as condition precedent to admissibility of 404(b) evidence, the offered evidence is inadmissible if the court decides that the notice requirement has not been met.’
“(Emphasis added.) The Advisory Committee Notes to the federal rules are persuasive authority in our interpretation of the Alabama rules. In addition, the Advisory Committee’s Notes to our Rule 404(b) specifically refer to the federal rule, stating:
“ ‘The “provided” clause of section (b) requires pretrial notice to the accused of the prosecution’s intent to use evidence of collateral misconduct. This “provided” clause is based upon an amendment to the corresponding federal rule adopted in 1991. See Fed.R.Evid. 404(b).’
“Therefore, we hold that Rule 404(b), Ala. R. Evid., like Rule 404(b), Fed. R.Evid., requires that the prosecution ‘provide notice, regardless of how it intends to use the extrinsic-act evidence at trial, i.e., during its case-in-chief, for impeachment, or for possible rebuttal.’
“The State concedes that the Advisory Committee Note to Federal Rule 404(b) indicates that the prosecution must provide notice of other-acts evidence, regardless of how it intends to use that evidence at trial. However, the State argues that the notice requirement of Rule 404(b), Ala. R. Evid., should not be extended to every conceivable use of prior-bad-acts evidence. Rather, the State contends, ‘compliance with the notice requirement should be addressed in light of the State’s reasonably anticipated intent to use prior-bad-acts evidence at the time notice was given.’ State’s brief, p. 20. In this case, four days before the trial, Lawrence requested notice pursuant to Rule 404(b). The prosecution gave notice to Lawrence’s attorney, on the day before the trial began, regarding the nine convictions. On the day of the trial, the prosecutor carried into the courtroom packets containing bad checks for which Lawrence had not been convicted, and she had them ready to use.
“The purpose of the notice requirement in Rule 404(b) is ‘to reduce surprise and promote early resolution on the issue of admissibility.’ Advisory Committee Note to 1991 Amendment, Rule 404(b), Fed.R.Evid. Regardless of whether the prosecutor had any intent to use the prior-bad-acts evidence at the time she gave notice, our Rule 404(b) requires that some notice be given, even ‘during trial if the court excuses pretrial notice on good cause shown.’ Rule 404(b), Ala. R. Evid. Therefore, at a minimum, the prosecutor should have given notice during trial, when it became apparent that evidence of the prior acts would be offered as rebuttal evidence. 1 The trial court would then have had the discretion to determine whether the prosecution had shown good cause for not giving notice before the trial and whether the evidence was admissible. Because the notice requirement serves as a condition precedent to the admissibility of Rule 404(b) evidence, the prosecutor’s failure to give Lawrence notice renders that evidence inadmissible.
*202 Lawrence, 776 So.2d at 53-54 (footnote omitted). The Alabama Supreme Court then proceeded to hold that the trial court did not abuse its discretion in denying the defendant’s motion for a mistrial because the questions regarding the defendant’s prior acts of negotiating worthless instruments did not have the effect of suggesting that she committed the charged offense; that the evidence of the other instances of negotiating worthless instruments was cumulative to the evidence regarding the nine convictions for negotiating worthless instruments; and that the trial court gave a curative instruction to the jury.
In the present case, unlike the situation in Lawrence, the State does not argue that it was not required to give notice under Rule 404(b). Instead, the State contends that it gave adequate notice under Rule 404(b). We agree. Under the circumstances of this case, defense counsel was given reasonable notice of the general nature of the evidence the State intended to introduce. In Lawrence, unlike the present case, the prosecutor asked questions about the defendant’s prior bad acts without providing the defense any notice. In the present case, the prosecutor gave general notice before trial that the State would seek to introduce evidence of the circumstances surrounding the August 13, 1994, incident at Hillock’s apartment. Those circumstances include the way in which Petrie entered Hillock’s apartment, whether he could enter her apartment without using force, and whether he entered her apartment without her permission. Before trial, the State specifically informed defense counsel that it intended to introduce evidence of collateral bad acts related to Petrie’s stalking, threatening,' and making preparations to restrain and murder Hillock. The State further informed defense counsel that it intended to “show the theft by the defendant of Ms. Hillock’s lingerie, keys, and wedding ring.” The substance of defense counsel’s Rule 404(b) objection at trial was that he was completely unaware of the incident in which Petrie made a copy of the keys to Hillock’s apartment without her permission. However, it is undisputed that defense counsel possessed a copy of the transcript of Hillock’s 1994 testimony and that that testimony included references to the incident in which Petrie made a copy of the keys to Hillock’s apartment without her permission. Furthermore, at trial, outside the presence of the jury and before the prosecutor asked any questions concerning the incident in which Petrie made a copy of the keys to Hillock’s apartment without her permission, the State gave notice that it desired to introduce evidence of that specific incident. This action by the State gave Petrie the opportunity to challenge the admissibility of the evidence and gave the trial court the opportunity to resolve the issue of admissibility outside the presence of the jury before the evidence was presented. The hearing held by the trial court on the issue before the jury heard any questions concerning the issue assured that Petrie did not suffer any prejudice. Therefore, we find no merit to Petrie’s claim that he was denied proper notice under Rule 404(b), Ala. R. Evid.
III.
Next, Petrie argues that the trial court erroneously admitted prejudicial hearsay *203 statements numerous times during his trial. At trial, Petrie did not make a timely objection to any of the statements he now challenges on appeal; thus, his arguments concerning these statements are not preserved for appellate review, and these arguments will be reviewed for plain error only. See Rule 45A, Ala. R.App. P.; Wilson, supra.
Rule 801(c), Ala. R. Evid., defines hearsay as “a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted.” Rule 801(a), Ala. R. Evid., defines a “statement” as “(1) an oral or written assertion or (2) nonverbal conduct of a person, if it is intended by the person as an assertion.” A “declarant” is simply “a person who makes a statement.” Rule 801(b), Ala. R. Evid. Under Rule 802, Ala. R. Evid., “[hjearsay is not admissible except as provided by these rules, or by other rules adopted by the Supreme Court of Alabama or by statute.”
A.
Petrie first alleges that the trial court improperly admitted prejudicial hearsay evidence regarding O’Rourke’s death. Specifically, Petrie alleges that the trial court improperly allowed Detective Gear to testify about the contents of certain telephone records and about O’Rourke’s missing keys. Petrie further alleges that the trial court improperly allowed Kristen Boster, the forensic scientist who performed DNA testing on certain items that were recovered from O’Rourke’s apartment, to testify that the washcloth recovered from the O’Rourke crime scene was reported to her as having “the highest evidentiary value.”
Concerning the telephone records, Detective Gear testified:
“[Prosecutor]: Now, in the course of your investigation, did you also review Ms. O’Rourke’s phone records?
“A. Yes, I did.
“Q. And did you determine whether there were any calls made to or from her apartment on July the fourth?
“A. Yes.
“Q. And—
“[Defense counsel]: Objection. Hearsay.
“The Court: Overruled. Overruled.
“Q. How many phone calls were made from her home?
“A. One phone call made from her phone in her apartment on that day.
“Q. Do you recall approximately what time that call was made?
“A. Right around 5:09, 5:10 p.m.
“Q. Where was the call made to?
“A. It was made to the residence of Steven Petrie.
“Q. Now, did you determine whether or not there were any calls made after that 5:09 p.m. phone call on the fourth of July?
“A. There were no more calls on the fourth.
“Q. Were there any calls made on the fifth of July?
“A. Yes.
“Q. And, if you would, tell us how many calls were made.
“A. There was one call made on the fifth of July.
“Q. What time was that call made?
“A. That was six minutes after midnight, 12:06 a.m.
“Q. Okay. So just after the fourth of July, six minutes into the fifth?
“A. Yes.
“Q. And where was that call made to?
*204 “A. Made to the residence of one Tina Hillock.”
“Q. Now, did you later determine who Tina was?
“A. Yes, I did.
“Q. Who was she in relation to the defendant?
“A. Steve Petrie’s ex-girlfriend.”
(R. 1403-05.)
Petrie’s counsel objected only to Detective Gear’s testimony that he had reviewed O’Rourke’s telephone records during the course of his investigation and had determined whether any calls were made to or from her . apartment on July 4. In that testimony, however, Detective Gear simply detailed his own actions. The testimony was evidence only of what Detective Gear did. The testimony was not evidence of a statement; thus, it was not hearsay. See White v. State, 900 So.2d 1249, 1261 (Ala.Crim.App.2004) (“His only objection seems to be that Slaton was permitted to testify about hearsay, but Slaton did not testify about what Thompson told him, only that he met Thompson at the location where Newton had testified she met Thompson. Slaton’s testimony about what he did was not hearsay.”).
After Detective Gear testified that he had reviewed O’Rourke’s telephone records and had determined whether any calls were made to or from her apartment, he testified about specific information that he had derived from the telephone records. However, Petrie’s counsel did not object to this testimony; thus, the admission of this testimony will be reviewed for plain error only. Therefore, the burden is on Petrie to establish that an obvious, indisputable error occurred and that the error aversely affected the outcome of the trial. See Wilson, supra.
On appeal, Petrie assumes that the telephone records of calls made • from O’Rourke’s apartment constitute hearsay. Petrie’s argument centers around the inapplicability of Rule 803(6), Ala. R. Evid., which is the business-records exception to the hearsay rule. However, it is not obvious or indisputable that the telephone records of calls made from O’Rourke’s apartment meet the definition of hearsay, which requires an assertive statement. See State v. Carter, 762 So.2d 662, 678-81 (La.Ct.App.2000) (taking judicial notice that telephone records of calls placed by a person using a particular telephone are compiled solely by a computer, not by persons entering information into a computer and accordingly holding that records of calls placed on a telephone could not be considered statements; thus, the records were not hearsay evidence); see also State v. Modest, 88 Wash.App. 239 , 944 P.2d 417, 422 (1997) (holding that “[c]learly a telephone bill is not an assertive statement and is not excludable as hearsay”). Because Petrie has failed to establish that the telephone records of calls made from O’Rourke’s apartment contained assertive statements, he has failed to meet his burden of establishing that Detective Gear’s testimony concerning the contents of the telephone records constituted hearsay. Therefore, we find no plain error in this claim.
Moreover, even if Detective Gear’s testimony concerning the contents of the telephone records was hearsay, the admission of that testimony did not rise to the level of plain error because it did not adversely affect Petrie’s substantial rights. The State presented a significant amount of other nonhearsay evidence indicating that Petrie had been in contact with O’Rourke around the time of her death. That evidence included the presence of his DNA at the scene of the crime and the fact that he used or attempted to use O’Rourke’s ATM card on several occasions *205 around the time of her death. Therefore, Detective Gear’s testimony that calls were placed from O’Rourke’s apartment to Pe-trie’s residence and to his ex-girlfriend’s residence was cumulative to other evidence presented, and the admission of Detective Gear’s testimony was not plain error. See Smith v. State, 795 So.2d 788, 814-15 (Ala.Crim.App.2000) (holding that even if the statement of capital-murder defendant’s mother about the defendant’s washing clothes in his mother’s trailer was hearsay, it was cumulative of other evidence presented through the defendant’s own admissions to police, and, thus, the admission of the statement was not plain error).
Next, we address Petrie’s allegation that Detective Gear’s testimony about O’Rourke’s missing keys was inadmissible hearsay evidence. At trial, without objection, Detective Gear testified simply that “there was a set of keys missing” from O’Rourke’s apartment and that the keys “were never recovered.” (R. 1408.) That testimony was the entirety of Detective Gear’s testimony concerning this issue. Detective Gear did not state how he became aware of the existence of the keys or how he became aware that the keys were missing. Detective Gear did not testify about what someone had told him. Detective Gear merely recounted something he had determined during the course of his investigation. Like Detective Gear’s testimony that he had reviewed O’Rourke’s telephone records during the course of his investigation, his testimony concerning the missing keys was not hearsay evidence because it was not evidence of a statement. See White, supra. Therefore, we conclude that Petrie has failed to establish plain error regarding this claim.
Next, Petrie alleges that the trial court erroneously admitted hearsay evidence when the court allowed Boster to testify that the washcloth recovered from the O’Rourke crime scene was reported to her as having “the highest evidentiary value.” At trial, Boster testified:
“[Prosecutor]: Can you tell us—list for us what items were submitted to you for testing?
“[Boster]: ... I also received several what we’d call ‘questioned stains.’ These are stains from the scene of the crime or involved in the. crime. And there [were] two stains from a bedsheet that had semen identified in the stain. There was a blood and semen mixture' from a washrag. And there was a semen stain on a pillowcase.
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“[Prosecutor]: Of these four items from the crime scene, was there any particular item that you were sort of focusing on?
“[Boster]: Yes.
“[Prosecutor]:' And which item was that?
“[Boster]: The blood and semen stain mixture that was found on the washrag was reported to me as having the highest evidentiary value in this case.
“[Prosecutor]: The washrag had the highest evidentiary value?
“[Boster]: Yes.”
(R. 1472-74.) There was no objection to this testimony; thus, the trial court’s admission of the testimony will be reviewed for plain error only.
Boster’s testimony that “the washrag was reported to [her] as having the highest evidentiary value in this case” was not hearsay. That testimony was not offered to prove the truth of the matter asserted in what was reported to Boster, i.e., that the washcloth had the highest evidentiary value, but for the purpose of explaining why Boster was focusing on a particular item. See Deardorff v. State, 6 *206 So.3d 1205,1216 (Ala.Crim.App.2004) (stating that “[a] statement offered for a reason other than to establish the truth of the matter asserted therein is not hearsay”). Furthermore, to the extent that Boster’s answer of “yes” to the prosecutor’s followup question can be removed from context and interpreted as Boster’s stating that she believed that the washcloth had the highest evidentiary value, that statement is also not hearsay because it is her opinion given while testifying at trial. A statement by a declarant while testifying at trial is not hearsay. Rule 801(c), Ala. R. Evid. Therefore, because Boster’s testimony was not hearsay, no error, plain or otherwise, occurred as a result of the admission of her testimony.
B.
Next, Petrie alleges that certain testimony given by Hillock was inadmissible hearsay. Specifically, Petrie alleges that the trial court improperly allowed Hillock to testify about her conversation with a police officer who arrived at her apartment during the incident involving Petrie. Petrie further alleges that the trial court improperly allowed Hillock to testify that neither she nor her sons had placed the duct tape or the bathrobe belt found in the bedroom of her apartment.
Regarding Hillock’s conversation with the police officer after he arrived at her apartment, Hillock testified:
“[Prosecutor]: Tell us what happened when you opened the door to the police.
“[Hillock]: When I opened the door for the police, I think Steve started going toward the living room. And I was — I just felt so relieved.
“[Prosecutor]: Did you leave your apartment at some point?
“[Hillock]: The officer said, “Why don’t we go outside so you can calm down and then we can talk to you?’
“[Prosecutor]: And did you go outside with the officer?
“[Hillock]: Yes, I did.
“[Prosecutor]: Tell us what happened when you went outside with the officer.
“[Hillock]: It took a while for me to calm down so that I could speak and he could understand me. But he questioned what had happened in the apartment. He had asked me whether or not Steve, I had invited [him] over or if he was there without my invitation. I told him, Yes.’ And I told him that Steve had thrown me around, wouldn’t let me leave the apartment, and that I was fearful of him.”
(R. 1496-97.) There was no objection to this testimony; thus, the admission of the testimony will be reviewed for plain error only.
Petrie alleges that this testimony “was full of out-of-court statements that were offered to prove the truth of the matter asserted, including the statements that (a) Hillock needed to calm down before she could talk, (b) Hillock had not invited Petrie into her apartment, (c) Pe-trie had assaulted Hillock and prevented her from leaving the apartment, and (d) Hillock feared Petrie.” (Petrie’s brief, at 61-62.) However, to the extent that any of this testimony was hearsay, the admission of the testimony was not plain error because the testimony was cumulative to other evidence presented at trial.
“Testimony that may be apparently inadmissible may be rendered innocuous by subsequent or prior lawful testimony to the same effect or from which the same facts can be inferred. McFarley v. State, 608 So.2d 430, 433 (Ala.Crim.App.1992); Thompson v. State, 527 So.2d 777, 780 (Ala.Crim.App.1988). Mary Evans’s testimony that Mary En-finger yelled for her to get her gun from *207 under the bed is merely cumulative of evidence that had already been elicited by the appellant’s counsel. Even if Mary Evans’s testimony were inadmissible hearsay, the statement was cumulative of prior evidence and any error that may have resulted was harmless.”
Yeomans v. State, 641 So.2d 1269, 1272-73 (Ala.Crim.App.1993); see also Smith, supra.
In the present case, the testimony Petrie challenges was rendered innocuous by subsequent or prior lawful testimony to the same effect or from which the same facts can be inferred. First, we will assume that Hillock gave hearsay testimony when she testified concerning the officer’s statement that she might need to calm down before they talked. However, moments later, Hillock testified: “It took a while for me to calm down so that I could speak and he could understand me.” (R. 1497.) This testimony clearly was not hearsay because it was a statement made by the declarant while testifying at trial, and from this testimony the same facts could be inferred, i.e., that Hillock was not calm when the officer arrived. Therefore, Hillock’s subsequent testimony rendered innocuous her earlier testimony concerning the statement made by the officer. Furthermore, when the officer testified at trial, he also gave nonhearsay testimony from which the same facts could be inferred. The officer testified that, “[w]hen [Hillock] opened the door, you could see a very panicked and terrored look on her face” and that “her whole body began shaking as somebody that was just very, very in fear.” (R. 1586.) The officer further testified that Hillock was not able to immediately talk to him and that “[i]t took a few minutes before [he] could get her to even speak anything.” (R. 1587.) Therefore, the officer’s testimony also rendered innocuous Hillock’s testimony concerning the statement made by the officer.
Similarly, assuming that Hillock, gave hearsay testimony when she testified that she told the police officer that she did not invite Petrie into her apartment, the testimony was rendered innocuous by her prior and subsequent lawful testimony to the same effect or from which the same facts can be inferred. (R. 1489-90, 1513.) Therefore, the admission of Hillock’s statement to the officer that she did not invite Petrie into her apartment was not plain error.
Likewise, Hillock’s testimony that she told the police officer that Petrie had thrown her around and would not let her leave the apartment was rendered innocuous by prior lawful testimony to the same effect or from which the same facts can be inferred. Before Hillock testified concerning what she told the police officer when he arrived at her apartment, she had testified in detail about being assaulted by Petrie and about not being able to leave the apartment. (R. 1494 (Hillock testified that “[a]nd just as soon as I opened the door, [Petrie] grabbed me and threw me back inside the apartment on the couch”)); (R. 1495-96 (after being asked whether she made “any other attempts to get out of the apartment,” Hillock testified that “I got up and ran, like, around the cocktail table so I could get out the kitchen door, and he grabbed me again and just threw me back on the couch”)). Therefore, the trial court did not commit plain error by admitting Hillock’s testimony concerning her statement to the officer that Petrie had thrown her around and would not let her leave the apartment.
Furthermore, Hillock’s testimony that she told the police officer that she feared Petrie was rendered innocuous by prior lawful testimony to the same effect *208 or from which it could be inferred that Hillock was fearful of Petrie. For instance, before giving the alleged hearsay testimony, Hillock testified that, during the incident at her apartment, she falsely told Petrie that she was pregnant because she was afraid that Petrie was going to hurt her. (R. 1494-95.) Therefore, to the extent that Hillock’s testimony was hearsay, the trial court did not commit plain error by admitting Hillock’s testimony because it was cumulative to other lawful testimony.
Also, we find no merit in Petrie’s allegation that the trial court improperly allowed inadmissible hearsay testimony when the court allowed Hillock to testify that neither she nor her sons had placed the duct tape or the bathrobe belt found in one of the bedrooms in her apartment. Without any objection based on hearsay, Hillock testified:
“[Prosecutor]: Was there anything found in your apartment that had been moved that you or your sons had not moved or placed in a certain area?
“[Hillock]: Yes. In my—
“[Prosecutor]: What were those items, Tina?
“[Hillock]: It was in my sons’ bedroom on their desk.
“[Prosecutor]: And what were those items?
“[Hillock]: It was a roll of duct tape and the belt to my robe.
“[Prosecutor]: When you say the belt to your robe, can you describe that belt for us?
“[Hillock]: It’s the belt that you tie around your robe to hold it closed. It was made of, like, a cotton material. It was pink and white stripes.
“[Prosecutor]: Where had that belt to your robe been when you last saw it?
“[Hillock]: It had been on my robe in my closet in my bedroom.
“[Prosecutor]: And neither you nor your sons had moved it; correct?
“[Hillock]: No.”
(R. 1499-1500.)
This testimony is not hearsay because it contains only statements made by the de-clarant while she was testifying at the trial. See Rule 801(c), Ala. R. Evid. Pe-trie’s argument appears to be that Hillock’s testimony must necessarily be relaying on an out-of-court statement made by her sons because, Petrie argues, Hillock could not have known whether her sons had placed the duct tape and the belt in the bedroom unless her sons had told her that they did not place the items in the bedroom. However, that argument is simply incorrect. For example, Hillock may have known that her sons did not place the items in the bedroom because they had not been in the apartment since she last saw the robe in her closet or since she last saw the desk on which the items were found. Hillock’s testimony that neither she nor her sons had moved the belt from her closet does not necessarily rely on an out-of-court statement from her sons. Therefore, Hillock’s testimony is not hearsay, and the trial court did not commit plain error by allowing the testimony.
IV.
Next, Petrie alleges that the trial court misapplied Rule 412, Ala. R. Evid., Alabama’s rape-shield rule, to prevent him from presenting evidence rebutting certain aspects of the State’s case. Specifically, Petrie alleges that he should have been allowed to present evidence indicating that Lim was separated from her husband at the time of her death and evidence indicating that Lim was employed as an exotic dancer.
*209 Rule 412(b), Ala. R. Evid., provides: “In any prosecution for criminal sexual conduct or for assault with intent to commit, attempt to commit, or conspiracy to commit criminal sexual conduct, evidence relating to the past sexual behavior of the complaining witness ... shall not be admissible, either as direct evidence or on cross-examination of the complaining witness or of other witnesses, except as otherwise provided in this rule.” A “complaining witness” is defined as “[a]ny person alleged to be the victim of the crime charged, the prosecution of which is subject to the provisions of this rule.” Rule 412(a)(1), Ala. R. Evid. Under Rule 412(a)(3), Ala. R. Evid., evidence relating to the past sexual behavior of the complaining witness “includes, but is not limited to, evidence of the complaining witness’s marital history, mode of dress, and general reputation for promiscuity, non-chastity, or sexual mores contrary to the community standards and opinion of character for those traits.”
A.
Petrie alleges that he should have been allowed to present evidence indicating that Lim was separated from her husband because, Petrie says, this evidence would have rebutted Lim’s mother’s testimony that Lim’s wedding rings were missing from her apartment after her death. According to Petrie, the evidence indicating that Lim was separated from her husband would “show the jury that Lim had reason to not be wearing her wedding ring.” (Petrie’s brief, at 67.)
First, after reviewing the record, we find that the trial court never prevented Petrie from presenting evidence indicating that Lim was separated from her husband; thus, Petrie’s argument, on its face, is without merit. During the examination of Lim’s mother at trial, outside the presence of the jury, defense counsel moved the trial court to allow him to question Lim’s mother concerning Lim’s marital history. (R. 916.) In making that motion, defense counsel asked: “Now, is that going to run afoul of the rape shield right there?” (R. 916.) Defense counsel also provided the trial court with a copy of the rape-shield rule, and the trial court read the rape-shield rule into the record. (R. 916-18.) The State then argued that questioning Lim’s mother concerning Lim’s marital history would violate the rape-shield rule. (R. 918.) Immediately after the State made its argument, the following exchange occurred:
“[Defense counsel]: I just wanted to clarify that, you know.
“The Court: All right.
“[Defense counsel]: So I won’t ask any questions about that.
“[Prosecutor]: Thank you.”
(R. 918.) Nothing else was recorded concerning questioning Lim’s mother about Lim’s marital history, and, when the examination of Lim’s mother continued, nobody attempted to ask Lim’s mother any questions about Lim’s marital history.
After Petrie had appealed his conviction to this Court, Petrie’s counsel filed a motion to “supplement the record with missing bench conferences and hearings.” The trial court then entered “an order instructing Mr. Petrie’s appellate attorneys to discuss with trial counsel for both parties any unrecorded proceedings in an attempt to reach an agreement as to the content of said proceedings.” (3d Supp. C. 26.) After that order was issued, the State submitted a response that included a “Statement of Unrecorded Proceedings and Evidence” that was prepared by Petrie’s appellate counsel, and the trial court “accepted] said statement as proof of what occurred at the unrecorded proceedings requested to be included in the record on appeal by *210 Mr. Petrie’s appellate attorneys.” Id. That “Statement of Unrecorded Proceedings and Evidence” states, in part:
“R. 922 — bench conference held outside the court reporter’s hearing. [The prosecutor] informed the trial court that his next witness, the decedent’s roommate, was not immediately available to testify. Defense counsel reiterated their objection to the portion of the court’s Rape Shield ruling that precluded the defense from asking questions regarding the decedent’s marital history (previously noted at R. 916-18). Defense counsel explained that the ruling violated Mr. Petrie’s right to present a defense, and it was necessary to tell the jury that the decedent’s husband had been deported to explain that the decedent may not have been wearing her wedding rings and may have been engaging in consensual romantic relationships with men other than her husband.”
(3d Supp. C. 71-72.) This unrecorded bench conference is noted in the record as occurring after Lim’s mother had been excused as a witness. (R. 922.)
Contrary to Petrie’s allegation on appeal, nowhere in the record is there evidence that the trial court prevented Petrie from presenting evidence indicating that Lim was separated from her husband when she was murdered. Petrie’s trial counsel voluntarily withdrew his motion to present evidence indicating that Lim was separated from her husband. (R. 918.) The trial court did not make a ruling on that motion. Id. Assuming that the information regarding the unrecorded bench conference is correct, during that bench conference defense counsel purportedly reiterated his objection to the trial court’s “rape-shield ruling” that was “previously noted at R. 916-18.” However, there is no “rape-shield ruling” by the trial court anywhere in the record, including pages 916-18 of the reporter’s transcript. Furthermore, the statement of the unrecorded bench conference does not indicate that the trial court made a ruling during that unrecorded bench conference. Therefore, because defense counsel voluntarily withdrew his motion and because there is no evidence that the trial court ever made a ruling on the motion, the trial court never applied the rape-shield rule or prevented Petrie from presenting evidence indicating that Lim was separated from her husband; thus, Petrie’s argument to the contrary is without merit on its face.
Moreover, even if the trial court prevented Petrie from presenting evidence indicating that Lim was separated from her husband or if Petrie’s trial counsel mistakenly failed to obtain a ruling from the trial court concerning the admissibility of that evidence, no error, much less plain error, occurred because that evidence was simply irrelevant and would not have rebutted Lim’s mother’s testimony that Lim’s wedding rings were missing from her apartment after her death.
Rule 401, Ala. R. Evid., defines “relevant evidence” as “evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.” Under Rule 402, Ala. R. Evid., “[e]vidence which is not relevant is not admissible.” Furthermore, “[a]lthough relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence.” Rule 408, Ala. R. Evid.
In the present case, Lim’s mother testified that she “knew” Lim was in possession of her wedding rings. (R. 893-94.) We will assume for the sake of argument *211 that, as Petrie suggests, one can infer that a woman might be less likely to wear her wedding rings if she is separated from her husband. However, Lim’s mother did not testify that Lim was wearing her wedding rings. Lim’s mother testified only that Lim was in possession of her wedding rings and that, after her death, they were missing from her apartment. Evidence that Lim was separated from her husband does not have any tendency to rebut the testimony of Lim’s mother. Whether Lim’s wedding rings were taken from her finger or from some location in the apartment is irrelevant. If the jury decided that Lim was not in possession of her wedding rings based solely on the fact that she was separated from her husband, that decision would be based on pure speculation. Therefore, the evidence indicating that Lim was separated from her husband was not relevant and, thus, was not admissible. Consequently, even if the trial court prevented Petrie from presenting that evidence or if Petrie’s trial counsel failed to obtain a ruling from the trial court concerning the admissibility of that evidence, no reversible error occurred.
B.
Petrie also argues that the trial court misapplied Alabama’s rape-shield rule to prevent him from presenting evidence indicating that Lim was employed as an exotic dancer at the time of her death. According to Petrie, that evidence would have rebutted Dr. Simmons’s testimony that some of the round bruises on Lim’s leg could have been caused by fingers grabbing Lim’s leg. Petrie alleges that evidence indicating that Lim was employed as an exotic dancer would offer an alternative explanation for the bruising on Lim’s leg.
Petrie appears to concede that under the rape-shield rule, evidence indicating that the complaining witness was an exotic dancer would normally be inadmissible. However, as Petrie notes, “to read Rule 412 as requiring an absolute exclusion of all evidence of past sexual activity between the victim and third persons could, in some cases, violate a criminal defendant’s constitutional rights,” and, thus, “when Rule 412 is applied to preclude the admission of particular exculpatory evidence, the constitutionality of its application is to be determined on a case-by-case basis.” Ex parte Dennis, 730 So.2d 138, 141 (Ala.1999). Petrie relies exclusively on Dennis to support his argument.
In O.A.C. v. State, 851 So.2d 146 (Ala.Crim.App.2002), this Court was asked to determine whether the trial court abused its discretion in restricting evidence of the rape victim’s extramarital affairs. In deciding that the trial court did not abuse its discretion, this Court examined Dennis and held, as follows:
“[I]n Dennis, the Alabama Supreme Court held that Rule 412 does not necessarily preclude all evidence of the past sexual behavior of the victim. In Dennis, the appellant was convicted of the first-degree rape of his then 11-year-old daughter. Testifying for the prosecution, a medical doctor ‘stated unequivocally that, in his opinion, [the victim’s] condition was caused by recurrent penetration rather than by a one-time occurrence.’ 780 So.2d at 139. In an attempt to rebut that testimony and to establish his innocence, the appellant sought to introduce evidence indicating that someone else had had sexual intercourse with the victim. Specifically, the appellant sought to introduce testimony from C.M., who testified out of the presence of the jury that she had seen another adult male engaging in sexual contact — and possibly intercourse — with the *212 victim. The trial court ruled that C.M.’s testimony was inadmissible under Rule 412 because either it was not probative or its prejudicial effect and tendency to confuse the jury substantially outweighed any probative value it might have. The Alabama Supreme Court upheld the trial court’s ruling that the evidence was inadmissible, finding, among other things, that the prejudicial effect of the evidence outweighed' its probative value. However, in doing so, the Court noted the following:
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“ ‘... [OJther states and the federal courtSj perhaps anticipating a constitutional argument similar to Dennis’s, have made express exceptions permitting the introduction of evidence of the victim’s sexual history where it is offered to rebut or to explain away scientific or medical evidence offered by the prosecution in a rape case. See Fed.R.Evid. 412....
“ ‘Moreover, the exception in Rule 412, Fed.R.Evid., was apparently included in the federal rule because of the outrage over this State’s now infamous prosecutions of the “Scottsboro nine” in the 1930s. See 21 Charles Alan Wright & Kenneth W. Graham, Jr., Federal Practice and Procedure § 5388, pp. 590-598 (1980) (hereinafter “Wright & Graham”). In fact, the exception in the federal rule is known as the “Scottsboro exception,” or a recognition of the “Scottsboro rebuttal.” Id. at 590-91. The trials of the Scottsboro nine serve as an excellent reminder of the need for such an exception.
‘“In the “Scottsboro cases,” nine black men were accused of raping two white women on a freight train while it was traveling through northern Alabama. A key piece of circumstantial evidence offered on behalf of the prosecution in the defendants’ first trial was medical testimony indicating that small amounts of semen had been found in the vagina of each woman. The defendants attempted to offer evidence in rebuttal to prove that these women had had sex the night before the alleged rapes, and, therefore, that the defendants were not the source of the semen. This rebuttal evidence was important because the small amount and the nonmotile condition of the semen found in the women was inconsistent with their account of a “gang rape” that the women had alleged had occurred on the day they were examined, and because the only other evidence in the trial was the testimony of the alleged victims. The trial court, however, excluded the rebuttal evidence on its own motion and scathingly chastised the defendants’ lawyer for attempting to introduce it. Several of the defendants were later found guilty. Some of the defendants’ convictions were overturned, and other defendants were released when it was later determined that the women were lying about the rape to cover up for their own “hoboing.” ...
“ ‘We agree with the other jurisdictions that the “Scottsboro exception” is not only wise, but is constitutionally required in some cases in which the prosecution offers evidence to show that a physical injury or condition of the victim indicates that the defendant committed the offense of rape.
“ ‘Of course, the “Scottsboro rebuttal” evidence would not be relevant in a prosecution in which the defendant claims that the victim consented to intercourse, because, in such a case, the defendant admits to being the source of the physical condition. *213 Also, the evidence is admissible only to rebut physical evidence offered by the prosecution; it is not freely admissible by the defendant. In addition, the evidence offered by the defendant to rebut the prosecution’s evidence cannot be “reputation” or “opinion” evidence that would be prohibited by Rule 412, Ala. R. Evid., and it must satisfy the other applicable rules of evidence.’
“Id. at 141-42 (emphasis added).
“In Ex parte Griffin, 790 So.2d 351 (Ala.2000), the Alabama Supreme Court, addressing a different issue, stated:
“ ‘The United States Supreme Court has held that a defendant has a right to put on a defense and that that right includes the opportunity to present evidence proving that another person committed the offense for which he has been charged. See Chambers v. Mississippi, 410 U.S. 284 , 93 S.Ct. 1038 , 35 L.Ed.2d 297 (1973); Washington v. Texas, 388 U.S. 14 , 87 S.Ct. 1920 , 18 L.Ed.2d 1019 (1967). However, this right is not absolute; instead, the trial court will have to consider the admissibility of such evidence in conjunction with other legitimate interests involved in the trial process. Chambers, 410 U.S. at 295 ; see also Guam v. Ignacio, 10 F.3d 608 (9th Cir.1993). As a result, the trial court is presented with a balancing test in order to determine whether the evidence of a third party’s culpability is properly admissible.’
“790 So.2d at 353 (emphasis added). In Griffin, the question was whether the appellant should have been permitted to introduce hearsay evidence tending to show that someone else had pleaded guilty to committing the crime for which the appellant was on trial. The Supreme Court answered the question in the affirmative, concluding that the appellant’s constitutional right to present a defense superseded the hearsay rule.
“Similarly, in Adams v. State, 821 So.2d 227 (Ala.Crim.App.), cert. denied, 821 So.2d 227 (Ala.2001), this Court held that the trial court had unconstitutionally prevented the appellant from presenting a defense. In Adams , the appellant was pulled over because the light that illuminated her tag was not working. The arresting officer took the appellant’s driver’s license information and then placed the appellant in the back of his patrol car because he believed she was a ‘flight risk.’ Id. at 228 . After determining that the appellant’s driver’s license had been suspended, the arresting officer removed the appellant from his patrol car and had her stand on the sidewalk while he removed his backseat and searched his patrol car. He claimed to have discovered a bag of crack cocaine, and the appellant was charged with possession of a controlled substance. At trial, in an attempt to show that she had been set up and targeted by the police, the appellant sought to introduce evidence indicating, among other things, that approximately three months before the traffic stop, she had filed a rape complaint against another police officer who worked in the same precinct with the arresting officer. The trial court granted the State’s motion in limine to exclude this evidence. This Court reversed, holding that the trial court had abused its discretion and had deprived the defendant of her right to present a defense:
“ ‘ “The right to testify on one’s own behalf at a criminal trial has sources in several provisions of the Constitution. It is one of the rights that ‘are essential to due process of law in a fair adversary process.’ Faretta v. California, 422 U.S. 806 , 819 n. 15, 95 *214 S.Ct. 2525 , 2533 n. 15, 45 L.Ed.2d 562 (1975). The necessary ingredients of the Fourteenth Amendment’s guarantee that no one shall be deprived of liberty without due process of law include a right to be heard and to offer testimony:
“' “ ‘A person’s right to reasonable notice of a charge against him, and an opportunity to be heard in his defense — a right to his day in court — are basic in our system of jurisprudence; and these rights include, as a minimum, a right to examine the witnesses against him, to offer testimony, and to be represented by counsel.’ (Emphasis added [in Rock ].) In re Oliver, 333 U.S. 257, 273 , 68 S.Ct. 499, 507 , 92 L.Ed. 682 (1948).
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“'"The right to testify is also found in the Compulsory Process Clause of the Sixth Amendment, which grants a defendant the right to call “witnesses in his favor,’ a right that is guaranteed in the criminal courts of the States by the Fourteenth Amendment. Washington v. Texas, 388 U.S. 14,17-19 , 87 S.Ct. 1920, 1922-1923 , 18 L.Ed.2d 1019 (1967). Logically included in the accused’s right to call witnesses whose testimony is ‘material and favorable to his defense,’ United States v. Valenzuela-Bernal, 458 U.S. 858, 867 , 102 S.Ct. 3440, 3446 , 73 L.Ed.2d 1193 (1982), is a right to testify himself, should he decide it is in his favor to do so. In fact, the most important witness for the defense in many criminal cases is the defendant himself. There is no justification today for a rule that denies an accused the opportunity to offer his own testimony. Like the truthfulness of other witnesses, the defendant’s veracity, which was the concern behind the original common-law rule, can be tested adequately by cross-examination. See generally Westen, The Compulsory Process Clause, 73 Mich. L.Rev. 71, 119-120 (1974).
“ ‘ “Moreover, in Faretta v. California, 422 U.S., at 819 , 95 S.Ct., at 2533 , the Court recognized that the Sixth Amendment
“ ‘ “ ‘grants to the accused personally the right to make his defense. It is the accused, not counsel, who must be “informed of the nature and cause of the accusation,” who must be “confronted with the witnesses against him,” and who must be accorded “compulsory process for obtaining witnesses in his favor.” ’ (Emphasis added [in Rock ].)
“ ‘ “Even more fundamental to a personal defense than the right of self-representation, which was found to be ‘necessarily implied by the structure of the Amendment,’ ibid., is an accused’s right to present his own version of events in his own words. A defendant’s opportunity to conduct his own defense by calling witnesses is incomplete if he may not present himself as a witness.
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“ ‘ “Just as a State may not apply an arbitrary rule of competence to exclude a material defense witness from taking the stand, it also may not apply a rule of evidence that permits a witness to take the stand, but arbitrarily exclude material portions of his testimony....
“ ‘ “Of course, the right to present relevant testimony is not without limitation. The right ‘may, in appropriate cases, bow to accommodate other legitimate interests in the criminal *215 trial process.’ [Chambers v. Mississippi, 410 U.S. 284, 295 , 93 S.Ct. 1038 , 35 L.Ed.2d 297 (1973).]” ’
“821 So.2d at 234-235, quoting Rock v. Arkansas, 483 U.S. 44, 51-52, 55 , 107 S.Ct. 2704 , 97 L.Ed.2d 37 (1987) (last emphasis added).
“The common theme running throughout the Alabama Supreme Court’s opinions in Griffin and Dennis, and this Court’s recent opinion in Adams , is the necessity of applying a balancing test. In determining whether the exclusion of evidence violates an accused’s constitutional right to present a defense, the trial court and this Court must balance the right of an accused to present a defense against other interests in the trial process. In this case, we must balance the right of the appellant to present his defense that the accusations against him were false against the policy of this State to protect victims of sexual crimes from being ‘ “harassed] and hu-miliat[ed]” ’ in attempts to ‘ “divert the attention of the jury to issues not relevant to the controversy.” ’ Moseley v. State, 448 So.2d 450, 456 (Ala.Crim.App.1984), quoting People v. Cornes, 80 Ill. App.3d 166,175 , 35 Ill.Dec. 818, 825 , 399 N.E.2d 1346,1353 (1980).
“We find no abuse of the trial court’s discretion in preventing the appellant from questioning the victim about whether she had had extramarital affairs or from testifying himself that the victim had admitted to him that she had had extramarital affairs. In this respect, we note that the appellant did not proffer evidence to ‘rebut physical evidence offered by the prosecution,’ as discussed in Dennis, and he did not proffer evidence suggesting that a third party had committed the charged offenses, as was the situation in Griffin. Moreover, the victim testified that she told the appellant she had had affairs with two men only because the appellant was beating her at the time and had threatened to kill her if she did not confirm the names of the people he thought she was having an affair with. The appellant denied that he was beating the victim when she made the statement. The victim further testified that the appellant suggested the names of two men, only one of whom she recognized. The appellant denied suggesting any names to the victim. However, no evidence was proffered as to whether one of the men, G.K. (whose name was provided either by the victim, with no suggestion from the appellant, or by the appellant, depending on which version of the events is believed) even exists, and no evidence was proffered as to whether the two men alleged by the appellant to have engaged in extramarital affairs with the victim actually did so. Likewise, the appellant offered no explanation as to what efforts, if any, he had made to identify and locate either man for questioning. Therefore, with the record in this posture, we conclude that the appellant failed to make the necessary threshold showing that the evidence he sought to introduce was sufficiently probative with respect to his claimed defense, so as to tip the balance in favor of admitting the evidence on the basis of his constitutional right to present a defense. The Alabama Supreme Court noted in both Dennis and Griffin that not in every case will the defendant’s right to present his defense be paramount. In Griffin, the Court specifically stated that the constitutional right to present a defense ‘will supersede [the hearsay rule] only in those cases that ... have a probative alternative theory of culpability and not an alternative theory that is merely speculative and meant only to confuse the *216 jury.’ 790 So.2d at 355 . The testimony proffered by the appellant with respect to the rape and sodomy charges was speculative, at best. In our view, this kind of inconclusive - evidence that, in effect, tends to be confusing and to raise more questions than it answers, falls squarely within the protective policy considerations of the rape-shield law — to protect victims of sexual crimes from being harassed and humiliated in an attempt to divert the attention of the jury to issues not relevant to the controversy. Furthermore, the victim’s testimony on cross-examination would clearly have been detrimental to the appellant in that she would have testified that she had stated that she was having extramarital affairs only because she was being severely beaten at the time she made the statement.”
O.A.C., 851 So.2d at 148-52 .
In the present case, when asked whether certain bruises on Lim’s leg appeared to be “consistent with anything,” Dr. Simmons testified:
“[Dr. Simmons]: Well, there are round bruises. I can’t say what caused them per se, other than you can see the shape of them.
“[Prosecutor]: Do they appear to you to be consistent with bruises that could have been caused by fingerprints from a grabbing manner?
“[Dr. Simmons]: Yes. That’s one explanation. Yes, sir.”
(R. 1085.)
Outside the presence of the jury, defense counsel moved to present evidence indicating that Lim was an exotic dancer. According to defense counsel, this evidence would offer a possible explanation for the presence of the round bruises on Lim’s leg. (R. 1126.) The trial court then allowed defense counsel to question Dr. Simmons outside the presence of the jury concerning this issue. During that examination, Dr. Simmons testified:
“[Defense counsel]: If you were dancing around a pole here, is that possible that bruising right here (indicating) could come from that? Or is that just strictly blood settling?
“[Dr. Simmons]: Let me see the picture, please.
“[Defense counsel]: Yeah, sure. And these two, too (indicating).
“[Dr. Simmons]: If you’re referring to this line here and this blanching (indicating), again, you know, that’s — I think that’s lividity. If you look at the scene picture, she’s laying on her side with these sheets here. This is lividity.
“Now, this stuff — these bruises here I’ve alluded to earlier, one on her hip and one her thigh and below the knee, as I said earlier, I can’t tell you. It could have been caused by fingers. I can’t tell you what caused them. As I testified to earlier, what causes a bruise is that trauma breaks a blood vessel and blood leaks out. So it does not have a pattern per se, so I don’t swear to this Court what caused it.
“[Defense counsel]: I understand. That’s what I want. But you’re saying you also can’t tell us that these other bruises are caused by fingers?
“[Dr. Simmons]: It’s the same. They are round. Fingers do cause round bruises. But so do other things.”
(R. 1127-28.)
Defense counsel then stated: “Again, in all due respect. Your Honor, I mean, in the line of work she was in, people touched her.” (R. 1128.) The trial court ruled that defense counsel’s argument was based upon “complete speculation” and that there was “no evidence” to support defense counsel’s argument. (R. 1129.) The trial court instructed defense counsel that *217 he could not present evidence indicating that Lim was an exotic dancer, but defense counsel could “make it clear to the jury that those bruises could get there by any means.” (R. 1130.)
We hold that the trial court did not abuse its discretion in preventing Petrie from presenting evidence indicating that Lim was an exotic dancer. Petrie failed to proffer any evidence to “rebut physical evidence offered by the prosecution,” as discussed in Dennis. Dr. Simmons testified that one possible explanation for the round bruises on Lim’s leg could be fingers grabbing her leg. However, Dr. Simmons specifically testified that he could not say what caused the bruises, and Petrie was allowed to cross-examine Dr. Simmons and “make it clear to the jury that those bruises could get there by any means.” Petrie merely wanted to show the jury that Lim was an exotic dancer. He did not proffér any evidence showing that her occupation as an exotic dancer actually caused the round bruises on her leg. Therefore, we conclude that, like the appellant in O.A.C., Petrie “failed to make the necessary threshold showing that the evidence he sought to introduce was sufficiently probative with respect to his claimed defense, so as to tip the balance in favor of admitting the evidence on the basis of his constitutional right to present a defense.” 851 So.2d at 152 . As the trial court concluded, Petrie’s theory that the round bruises on Lim’s leg were caused by her occupation as an exotic dancer is completely speculative. Thus, concerning this issue, because Petrie’s theory is, at best, speculative and would serve only to confuse the jury, Petrie’s constitutional right to present a defense does not supersede the protections of the rape-shield rule. Evidence indicating merely that Lim was an exotic dancer would serve only to demean the victim and to divert the attention of the jury to irrelevant issues. The trial court did not abuse its discretion in preventing Petrie from presenting that evidence.
V.
Next, Petrie argues that the trial court erroneously allowed Angelo Della Manna, the chief of forensic biology for the Alabama Department of Forensic Sciences, to testify that the semen recovered from Lim’s body originated from the “putative perpetrator.” Petrie argues that because earlier testimony indicated that the DNA profile of that semen matched his DNA profile, Della Manna was implicitly referring to Petrie as the “putative perpetrator.” According to Petrie, Della Manna’s use of the term “putative perpetrator” to implicitly describe Petrie “stripped Petrie of the presumption of innocence and invaded the sole province of the jury.” (Petrie’s brief, at 80.) Specifically, Petrie alleges that Della Manna’s use of the term “putative perpetrator” improperly implied Pe-trie’s guilt and violated Rule 704, Ala. R. Evid. Petrie states that Della Manna’s testimony was particularly prejudicial because of his position as the chief of forensic biology. At trial, Petrie did not object to Della Manna’s use of the term “putative perpetrator”; thus, the admission of that part of his testimony in which he uses that term will be reviewed for plain error only. See Rule 45A, Ala. R.App. P.; Wilson, supra.
‘“The principle that there is a presumption of innocence in favor of the accused is the undoubted law, axiomatic and elementary, and its enforcement lies at the foundation of the administration of our criminal law.’ ” Estelle v. Williams, 425 U.S. 501, 503 , 96 S.Ct. 1691 , 48 L.Ed.2d 126 (1976) (quoting Coffin v. United States, 156 U.S. 432, 453 , 15 S.Ct. 394 , 39 L.Ed. 481 (1895)).
*218 Rule 704, Ala. R. Evid., states: “Testimony in the form of an opinion or inference otherwise admissible is to be excluded if it embraces an ultimate issue to be decided by the trier of fact.” “‘An ultimate issue has been defined as the last question that must be determined by the jury.’ ” Fitch v. State, 851 So.2d 103, 116 (Ala.Crim.App.2001) (quoting Tims v. State, 711 So.2d 1118, 1125 (Ala.Crim.App.1997)). Furthermore, in Fitch , this Court recognized that when the testimony at issue is given by an expert, Rule 704 must be read in conjunction with Rule 702(a), Ala. R. Evid., which provides: “If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education may testify thereto in the form of an opinion or otherwise.” See Fitch, 851 So.2d at 117 .
In Fitch , this Court also noted:
“This Court has said:
“ ‘Rule 704, Ala. R. Evid., provides that “[tjestimony in the form of an opinion or inference otherwise admissible is to be excluded if it embraces an ultimate issue to be decided by the trier of fact.” However, in the case of expert testimony, enforcement of this rule has been lax. C. Gamble, Gamble’s Alabama Rules of Evidence § 704 (1995). We have noted previously in Travis v. State, 776 So.2d 819 at 849 (Ala.Cr.App.1997), that expert testimony as to the ultimate issue should be allowed when it would aid or assist the trier of fact, and the fact that “ ‘ “a question propounded to an expert witness will elicit an opinion from him in practical affirmation or disaffirmation of a material issue in a case will not suffice to render the question improper” ’ ” (citations omitted); see also Rule 702, Ala. R. Evid. (stating that expert testimony should be allowed when it will aid or assist the trier of fact).’
“Henderson v. State, 715 So.2d 863, 864-65 (Ala.Crim.App.1997).”
Fitch, 851 So.2d at 117 .
In the present case, Della Manna did not perform any of the DNA testing. However, Della Manna testified concerning the process of entering DNA profiles into the CODIS, and he was generally aware of the DNA testing that was performed in the present case. At trial, Della Manna was accepted as an expert in forensic biology. (R. 1300.) Della Manna testified that DNA profiles must meet both quality and relevancy requirements before they can be entered into the CODIS. He testified that “only the putative perpetrator and individuals who by statute are required to give a sample” are included in the CODIS. (R. 1307.) When asked to define the term “putative perpetrator,” Della Manna testified: “The term ‘putative perpetrator,’ as defined in the national procedures, refers to the DNA traits that through scientific evidence you can associate with the act at hand, the case that you’re looking at.” (R. 1307.) Later, Della Manna explained that DNA that is “relevant to the act at hand” means “the comparison of samples taken directly from the victim that you can associate a definite time frame with versus a sample on a blanket that you can’t associate a time frame with.” (R. 1350.) Della Manna confirmed that the DNA profile of the semen recovered from Lim’s body was entered into the CODIS. During cross-examination by the defense, the following exchange occurred:
“[Defense counsel]: Anyway, when you say — and this works around that concept of putative. If you find something from that initial test that is from the rape kit and it identifies with some *219 body, then you’re saying that person is a possible putative suspect; is that right?
“[Della Manna]: That’s correct.
[[Image here]]
“[Defense counsel]: But you’re using this as kind of like a term of art. You use putative. Now, at that point, your test shows that that person I’ll say may or may not — in this case, may or was or did have sex with that person. All right. But when you say ‘putative,’ now that doesn’t imply that there was some criminal intent at that point, does it?
“[Della Manna]: It just implies that the semen that is recovered is, from the DNA standpoint in accordance with the national procedures, attributable to what is termed the ‘putative perpetrator.’
“[Defense counsel]: In no way — it’s just there and attributable to that person? That’s all you’re saying?
“[Della Manna]: The semen.
“[Defense counsel]: Yeah.
“[Della Manna]: That’s correct.”
(R. 1320-21.)
This Court finds that Della Manna did not use the phrase “putative perpetrator” as a condemnation of Petrie or as an opinion on his guilt but as part of an explanation of why the DNA profile of the semen recovered from Lim’s body was entered into the CODIS. Della Manna throughly explained the technical definition of the term “putative perpetrator,” and defense counsel explicitly recognized the term as “a term of art.” Even if Della Manna’s expert testimony had embraced an ultimate issue to be decided by the trier of fact, and we conclude that it did not, the testimony assisted the jury in understanding the evidence and in reaching its resolution of the case. In this context, we cannot reasonably say that the use of the term “putative perpetrator” adversely affected Petrie’s substantial rights. Contrary to Petrie’s allegation, Della Manna’s use of the term “putative perpetrator” did not strip Petrie of his presumption of innocence or invade the province of the jury. Therefore, we hold that the trial court did not commit plain error in admitting Della Manna’s testimony.
VI.
Next, Petrie argues that the trial court committed plain error by admitting what he says is unreliable DNA evidence. Specifically, Petrie alleges that the DNA evidence linking him to the crime scene was produced by an unproven technique and that “the trial court admitted testimony claiming a ‘match’ between Petrie and DNA from the crime scene without any evidence establishing the statistical significance of the match.” (Petrie’s brief, at 81-82.) Petrie did not challenge the admissibility of this DNA evidence at trial; thus, we will review the admission of the DNA evidence for plain error only. See Rule 45A, Ala. R.App. P.; Wilson, supra.
A.
Petrie alleges that the trial court committed plain error by admitting the DNA evidence linking him to the crime scene because, he says, the State generated the DNA profiles using a system named “Identifiler” but failed to show that evidence generated using the Identifiler system is reliable under § 36-18-30, Ala.Code 1975. Section 36-18-30 provides:
“Expert testimony or evidence relating to the use of genetic markers contained in or derived from DNA for identification purposes shall be admissible and accepted as evidence in all cases arising in all courts of this state, provided, however, the trial court shall be satisfied that the expert testimony or evidence meets the criteria for admissibility as set forth by the United States Supreme *220 Court in Daubert, et ux., et al., v. Merrell Dow Pharmaceuticals, Inc., decided on June 28,1993.”
In Turner v. State, 746 So.2d 355 (Ala.1998), the Alabama Supreme Court stated:
“We hold that if the admissibility of DNA evidence is contested, the trial court must hold a hearing, outside the presence of the jury, and, pursuant to § 36-18-30, determine whether the proponent of the evidence sufficiently establishes affirmative answers to these two questions:
“I. Are the theory and the technique (i.e., the principle and the methodology) on which the proffered DNA forensic evidence is based ‘reliable’?
“II. Are the theory and the technique (i.e., the principle and the methodology) on which the proffered DNA evidence is based ‘relevant’ to understanding the evidence or to determining a fact in issue?
“Trial courts should use the flexible Daubert [v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993),] analysis in making the ‘reliability’ (scientific validity) assessment. In making that assessment, the courts should employ the following factors: (1) testing; (2) peer review; (3) rate of error; and (4) general acceptance.”
746 So.2d at 361 (footnotes omitted).
In the present case, Dodd testified that the DNA profiles linking Petrie to the crime scene were generated in 2004 using “a system called Identifiler” that “allowed us to look at sixteen different areas of the DNA molecule.” (R. 1235.) Dodd also stated that the Identifiler system is the system the Alabama Department of Forensic Sciences currently uses. (R. 1235.) Dodd also briefly described the current DNA-analysis process. (R. 1230-31.) Dodd then presented testimony concerning the results of the DNA testing. The defense did not contest the admissibility of the DNA evidence, and the trial court did not hold a hearing to determine the reliability of the DNA evidence.
After Dodd had finished testifying, at the request of defense counsel, the defense and the prosecution agreed to admit into evidence a laboratory report prepared by a DNA expert for the defense. (R. 1279-82, 1296-97.) The report was marked as both a State’s exhibit and a defendant’s exhibit. (C. 532.) The DNA testing for that report also used the Identifiler system. (C. 536.) The results of that report did not contradict the results of Dodd’s testing. Both Dodd and the expert for the defense concluded that the DNA profile of the semen donor on the vaginal swab of Lim’s body matched Petrie’s DNA profile. (R. 1243-44, 1250-51; C. 537-38.) The defense expert also concluded that Petrie’s DNA was present in stains on a blanket that was recovered from the crime scene. (C. 537.)
We conclude that Petrie has failed to establish that the trial court committed plain error by failing to require the State to show the reliability of the “Identifiler” system. Petrie has failed to establish plain error because he has failed to establish that any error that occurred adversely affected the outcome of the trial. The results of the State’s DNA testing that connected Petrie to the crime scene were merely cumulative of the results of Petrie’s expert’s DNA testing, which also connected Petrie to the crime scene. Furthermore, the DNA testing performed by the defense’s expert relied on the same “Identifi-ler” system that was used by the State; thus, the defense conceded at trial the reliability of the system. Therefore, we find that Petrie’s substantial rights were not adversely affected by the trial court’s *221 admission of the State’s DNA evidence obtained using the “Identifiler” system; thus, the trial court did not commit plain error.
B.
Petrie also alleges that the trial court committed plain error by admitting testimony claiming a “match” between Pe-trie’s DNA profile and DNA obtained from the Lim and O’Rourke crime scenes -without any evidence establishing the statistical significance of the matches. Specifically, Petrie alleges that “[t]his testimony affirmatively misled the jury into believing that Petrie could be conclusively linked to each of these crime scenes because the prosecution presented no evidence establishing the statistical significance of the matches.” (Petrie’s brief, at 85.)
This Court has explained:
“[T]here are two types of DNA evidence: matching evidence and population-frequency-statistical evidence. In terms of criminal law, matching evidence indicates whether the DNA from a given sample (such as a sample of biological fluid from a crime scene) is the same as a suspect’s DNA. If the DNA is not the same, then the suspect is excluded as having contributed that sample to the crime scene. If the DNA is the same, then the suspect is included as having possibly contributed that sample to the crime scene; however, the suspect is not positively identified as the contributor to the sample. Because only certain regions of the DNA molecule are analyzed and used for comparison, rather than the whole molecule, it is possible that more than one person has the same sequence in the same region (mtDNA) or the same size region (nuclear DNA). Because a ‘match’ is not, by itself, a positive identification of an individual, the significance of that match must be calculated. Population-frequency-statistical evidence is evidence of the frequency with which a particular sequence or size in a particular region is found in the population as a whole and it establishes the significance of the matching evidence.”
Lewis v. State, 889 So.2d 623, 668-69 (Ala.Crim.App.2003).
In the present case, concerning the DNA results from the cigarette butts found in Lim’s apartment, Dodd testified that “three of the cigarette butts match the profile from Mr. Petrie.” (R. 1243.) Concerning the vaginal swab of Lim’s body, Dodd testified that “the semen donor on the vaginal swab matched the DNA profile of Steven Petrie.” (R. 1244.) Dodd did not give any population-frequency-statistical testimony. However, the defense expert’s laboratory report contained DNA-statistical analysis of the various samples from the Lim crime scene that were tested. (C. 539-40.) For example, concerning the semen donor on the vaginal swab, the defense expert’s report states that the DNA profile originated from Pe-trie and that “the estimated frequency of occurrence of this genetic profile at thirteen loci in five North American populations is: 1 in 17.87 quintillion unrelated [Black] individuals; 1 in 485.9 quadrillion unrelated [Caucasian] individuals; 1 in 267.7 quadrillion unrelated [Southwest Hispanic] individuals; 1 in 235.8 quadrillion unrelated [Southeast Hispanic] individuals; 1 in 4.63 quintillion unrelated [General Asian] individuals.” (C. 539-40.)
Concerning the Lim crime scene, we find no merit in Petrie’s allegation that the trial court committed plain error by allowing Dodd’s DNA-matching testimony that was not accompanied by population-frequency-statistical evidence. Petrie has not established that any error in the admission of Dodd’s testimony adversely affected the *222 outcome of the trial. Contrary to Petrie’s specific allegation, in light of all the evidence that was presented at trial, the jury was not misled. The defense expert’s report contained population-frequency-statistical evidence concerning the DNA evidence from the Lim crime scene that “matched” Petrie’s DNA profile. The population-frequency-statistical evidence in that report was not favorable to Petrie because it showed that the frequency of occurrence of the DNA profile that matched Petrie is rare. It is entirely possible that Petrie’s defense counsel decided not to object to Dodd’s lack of population-frequency-statistical testimony because such testimony woul

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/4817206. Public record. Not legal advice.