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BEEMON v. STATE, CR-08-1889 (Ala.Crim.App. 11-5-2010)
CAPERTON, JUDGE.
The Appellant, the Department of Revenue, Finance and Administration Cabinet, Commonwealth of Kentucky, appeals the August 27, 2009, opinion and order of the Franklin Circuit Court, determining that the Appellee, Cox Interior, Inc., could receive a refund of its payment of an ad valorem tax assessment, despite its failure to protest that assessment prior to paying the taxes at issue. Having reviewed the record, the arguments of the parties, and the applicable law, we affirm.
In 2005, the Department of Revenue conducted a tangible personal property tax audit of Cox for the period from 2001 to 2004. At the conclusion of the audit, the Department issued tangible personal property tax bills to Cox in the amount of $151,943.51. In March of 2006, Cox paid the entire balance due, with interest, per the audit assessments. Approximately sixteen months thereafter, on July 10, 2007, Cox filed refund claims pursuant to KRS 134.590 to recover $44,717.00 in property taxes that Cox contends were erroneously paid because the Department of Revenue had incorrectly placed manufacturing machinery on the non-manufacturing schedule of the tangible return.
The Department of Revenue denied Cox's refund claims on procedural grounds on August 17, 2007. Specifically, the Department of Revenue found that, even though Cox filed its refund claims within two years of paying the audit liability, Cox's refund claims were nevertheless disallowed by KRS 134.590 because Cox paid the audit liability without protesting it first. Cox protested that denial on August 28, 2007, within the forty-five-day statutory period for filing a protest claim as set forth in KRS 131.110. On December 10, 2007, the Department of Revenue issued Final Ruling No. 2007-57, upholding the denial of Cox's refund claims. This final ruling, in reliance upon the last sentence of KRS 134.590(2) and its counterpart in KRS 134.590(6), pointed out that Cox sought the refund of taxes paid on assessments that it had not first protested pursuant to KRS 131.110. Accordingly, the Department of Revenue determined that it had properly denied the claims.
Cox appealed the final ruling to the Kentucky Board of Tax Appeals (KBTA) on January 9, 2008. In its petition on appeal, Cox emphasized that its refund claims were filed within two years of payment, as required by KRS 134.590(2). It further asserted that Cox's failure to protest the original assessments made at the conclusion of the audit did not preclude Cox from filing a refund claim if it later discovered that it overpaid its property taxes. The petition further argued that Cox had protested the Department's denial of the refund claims in accordance with the third sentence of KRS 134.590(2).
On August 19, 2008, the Department filed a motion for summary disposition or judgment pursuant to 802 Kentucky Administrative Record (KAR) 1:010 Section 10. This motion was supported by the affidavit of Department of Revenue employee Montoiya Wheat. Wheat was a protest and review officer whose duties included the review of audits and issuance of notices of assessment pursuant to KRS 131.110. Wheat stated that she had personally reviewed Cox's audit and had sent Cox formal notices of assessment of tax due in accordance with KRS 131.110, 132.486, and 132.310. Accompanying the affidavit was a "fair and accurate copy" of the November 14, 2005, letter Wheat sent to Cox which was accompanied by the auditor's narrative report, assessment notices, and supporting schedules. That letter stated as follows:
In accordance with KRS 131.110, if you disagree with the audit results, a written protest, setting for [sic] the grounds upon which the protest is made, and identifying the specific adjustments protested, must be filed within forty-five (45) days from the notice date [on the formal Notices of Tax Due that would be forthcoming within five days].
Wheat's affidavit further established that Cox did not protest the tax assessments, but instead paid the tax assessed in full, with interest. Cox filed a response and its own motion for partial summary disposition on September 3, 2008. Therein, Cox reasserted its position that its protest of the Department's denial of its refund claims satisfied the last sentence of KRS 134.590(2). It also argued that this Court's decision in Revenue Cabinet v. Castleton, Inc., 826 S.W.2d 334 (Ky.App. 1992), supported its position in this regard.
The KBTA issued Order No. K-20213 on February 5, 2009, concluding that Cox had timely filed its claim for a refund and, thereafter, timely filed its protest of Revenue's denial of its refund claims. It further found that Cox did not lose its ability to file for a refund under KRS 134.590 by paying the tax first. The KBTA found Castleton to be most analogous to the case before it and reasoned that the statute of limitations does not collapse on a refund merely because the taxpayer pays the tax assessed.
The Department of Revenue appealed the decision of the KBTA to the Franklin Circuit Court, which issued an opinion and order on August 27, 2009, affirming the decision of KBTA. Like the KBTA, the circuit court found Castleton to be controlling. It further found that the interpretation of KRS 134.590 asserted by the Department created "a procedural minefield of obstacles" that would defeat the claims of taxpayers seeking to exercise their legitimate right to make refund claims, stating specifically that:
Requiring a taxpayer to pay taxes under protest as a mandatory pre-condition of asserting a refund claim later simply erects unnecessary procedural obstacles to obtaining a refund. When a taxpayer protests the denial of a refund claim under the procedure of KRS 131.110, Revenue has a full and fair opportunity to address the merits of the refund claim. That is all the doctrine of exhaustion of remedies can or should require.
It is from that opinion that the Department of Revenue now appeals to this Court. In addressing the issues raised by the parties, we note that when reviewing an appeal from an administrative decision, the standard of review regarding factual issues "is limited to determining whether the decision was erroneous as a matter of law." McNutt Construction/First General Services v. Scott, 40 S.W.3d 854, 860 (Ky. 2001). Indeed, "[J]udicial review of administrative action is concerned with the question of arbitrariness. . . . Unless action taken by an administrative agency is supported by substantial evidence it is arbitrary." American Beauty Homes Corp. v. Louisville and Jefferson County Planning and Zoning Commission, 379 S.W.2d 450, 456 (Ky. 1964). "Substantial evidence is defined as `evidence of substance and relative consequence having the fitness to induce conviction in the minds of reasonable [persons].'" Kentucky Unemployment Ins. Com'n v. Landmark Community Newspapers of Kentucky, Inc., 91 S.W.3d 575, 579 (Ky. 2002).
Concerning the weight of the evidence, "the trier of facts is afforded great latitude in its evaluation of the evidence heard and the credibility of witnesses appearing before it." Bowling v. Natural Resources and Environmental Protection Cabinet, 891 S.W.2d 406, 409-10 (Ky.App. 1994). A reviewing court may not substitute its own judgment on a factual issue "unless the agency's decision is arbitrary and capricious." McManus v. Kentucky Retirement Systems, 124 S.W.3d 454, 458 (Ky.App. 2003). "[T]hree grounds of judicial review, (1) action in excess of granted powers, (2) lack of procedural due process, and (3) lack of substantial evidentiary support, effectually delineate [the] necessary and permissible scope [of review]." American Beauty Homes Corp. 379 S.W.2d at 456 (Ky. 1964).
Nevertheless, matters of statutory construction are subject to de novo review. "Statutory interpretation is a matter of law reserved for the courts, and this Court is not bound by the [Circuit Court's] interpretation. . . ." Halls Hardwood Floor Co. v. Stapleton, 16 S.W.3d 327, 330 (Ky.App. 2000). Under de novo review, a reviewing court affords no deference to the trial court's application of the law to the established facts. Cinelli v. Ward, 997 S.W.2d 474, 476 (Ky.App. 1998). Should an administrative body misconstrue the legal effect of the facts, courts are not bound to accept the legal conclusions of the administrative body. Epsilon Trading Co. v. Revenue Cabinet, 775 S.W.2d 937, 940 (Ky.App. 1989).
Further, we note that the provision at issue in this matter, KRS 134.590, provides, in pertinent part, as follows:
(1) When the appropriate state government agency determines that a taxpayer has paid ad valorem taxes into the state treasury when no taxes were due or has paid under a statute held unconstitutional, the state government agency which administers the tax shall refund the money, or cause it to be refunded, to the person who paid the tax.
(2) No state government agency shall authorize a refund unless each taxpayer individually applies for a refund within two (2) years from the date the taxpayer paid the tax. Each claim or application for a refund shall be in writing and state the specific grounds upon which it is based. Denials of refund claims or applications may be protested and appealed in accordance with KRS 131.110 and 131.340. No state government agency shall refund ad valorem taxes, except those unconstitutional, unless the taxpayer has properly followed the administrative remedy procedures established through the protest provisions of KRS 131.110, the appeal provisions of KRS 133.120, the correction provisions of KRS 133.110 and 133.130, or other administrative remedy procedures.
On appeal, the Department of Revenue argues that Cox was not entitled to an ad valorem tax refund under KRS 134.590, because it failed to protest the assessment of the taxes that were the object of the assessment. In making this argument, it focuses particularly on the word "has" in the last sentence of KRS 134.590(2). The Department of Revenue asserts that the use of the word "has" unmistakably requires the Department to ask itself when considering a refund claim: Has this taxpayer followed the provisions of KRS 131.110, which relate to the protest of tax assessments? The Department of Revenue argues that in the matter sub judice, Cox did not protest the assessments issued to it as a result of the audit and that, accordingly, it could not later seek a refund.
In making this argument, the Department of Revenue asserts that the KBTA and the circuit court erred in their reliance on Castleton, in light of the history of KRS 134.590 and the difference in language between that provision and KRS 134.580, which was the provision analyzed in Castleton.
As the Department of Revenue correctly notes, Castleton involved a situation in which the taxpayer sought refund of a sales and use tax. Castleton paid part of the assessment without protest, and protested and appealed the balance of the assessment, achieving a reduction in tax liability. Approximately two years later, Castleton filed a claim seeking the refund of a portion of the unprotested amount it had paid. The Cabinet contended that Castleton had waived its legal right to pursue that refund because it had failed to protest the assessment of the tax for which it sought a refund. Therein, this Court held that the taxpayer did not have to follow procedures for filing a protest of a tax assessment in order to seek a refund, stating:
Upon consideration of KRS 134.580 in light of KRS 131.110, we agree with the trial court's determination that the remedy for filing a claim for a refund of taxes pursuant to KRS 134.580 is not conditioned upon satisfaction of the procedural requirements provided in KRS 131.110 for filing a protest of a tax assessment.Castleton, 826 S.W.2d at 337.
The Department of Revenue notes that in 1992, KRS 134.590 was amended to provide the specific connection between itself and KRS 131.110 that this Court found to be lacking between KRS 134.580 and KRS 131.110 in Castleton. Thus, the Department of Revenue argues that it is plain that no refund can be authorized by the Department unless the taxpayer has properly followed the applicable administrative remedy, including the protest and appeal of the assessment issued. The Department of Revenue argues that KRS 134.580 was not similarly amended, and that as KRS 134.580 and KRS 134.590 are the only two primary statutes governing tax refunds, the difference in language cannot be considered the result of inadvertence on the part of the General Assembly.
Cox disagrees, and argues that the Castleton decision clearly stands for the proposition that the taxpayer has the right to request a refund, provided that it is timely made, without regard to whether a protest was filed against the audit liability, and that such principle stands regardless of whether the refund claim relates to a sales tax or a property tax. Cox also argues that it is insignificant that KRS 134.590 references KRS 131.110, while KRS 134.580 does not, and that in any event, it has followed the administrative remedy procedures mandated by KRS 131.110.
Cox also disputes Revenue's assertion that the General Assembly effectively overruled Castleton by amending KRS 134.590 in 1992, and again in 2005. Cox instead asserts that the language added in 1992 merely requires that taxpayers follow the appropriate administrative remedy procedures applicable to their refund claim, which it says it has done in this instance.
Cox further makes note of the "or other administrative remedy procedures" language at the end of KRS 134.590(2), which it asserts is an acknowledgement that a protest pursuant to KRS 131.110 is not the only administrative remedy procedure that may be applicable in a refund situation. Cox likewise argues that the 2005 amendment to KRS 134.590 does not support the interpretation argued by Revenue, and that the clear and stated purpose of the 2005 bill was simply to make it clear that in a class action lawsuit to recover property taxes, each litigant had to file a refund claim with the Department of Revenue in order to receive a refund. Cox thus asserts that neither the 1992 nor the 2005 amendments to KRS 134.590 support the Department of Revenue's assertion that the General Assembly has nullified Castleton.
Specifically, Cox directs this Court to the recitals made to the 2005 bill (HB 498 GA) by the General Assembly, which state as follows:
WHEREAS, the General Assembly has been made aware that technical nonsubstantive changes made to the tax refund statute, KRS 134.590, in 1996 are being interpreted by litigants and courts as making a substantive change that would allow the brining or maintenance of class actions for the recovery or refund of taxes against the Commonwealth and its political subdivisions and taxing districts; and
WHEREAS, it appears to the General Assembly that similar interpretations are or have been advocated or adopted concerning other tax refund statutes, or that similar uncertainty exists with respect to other tax refund statutes; and
WHEREAS, the General Assembly wishes to make it clear that each taxpayer must file an individual refund claim and that the filing of a class action lawsuit does not constitute a timely filing for each member of the class, and clarify other procedural requirements of the tax refund statutes. . . .
Beyond asserting that Castleton is inapplicable to the matter sub judice, the Department of Revenue argues that the interpretation of the statute urged by Cox renders the last sentence of KRS 134.590(2) essentially meaningless. The Department of Revenue asserts that the General Assembly specifically intended for parties to protest allegedly erroneous assessments within a forty-five-day period, as mandated by KRS 131.110. Accordingly, it argues that the interpretation asserted by Cox, namely that parties have two years to request a refund and then to protest if the refund is denied, is contrary to the intent of the legislature in amending the statute. It further argues that the sensible and correct interpretation of the third sentence of KRS 134.590(2) is that it codifies the procedure for challenging refund claims denial that had previously been set forth in the Department's regulation, 103 KAR 1:010 § 2. It also asserts that the last sentence, by its clear reference to KRS 131.110 (which expressly refers to assessments only) and to KRS 133.120 (which also pertains to assessments), makes clear that it pertains to the protest of an assessment and not the protest of a refund denial.
The Department of Revenue further argues that the interpretation of the statute urged by Cox is at odds with the tangible personal property ad valorem tax statutory scheme as a whole. Cox argued below that the Department of Revenue's position impermissibly shortens the two-year limitations period prescribed in KRS 134.590(2) for filing refund claims to forty-five days, the time allowed for protesting an assessment under KRS 131.110. Cox restates that argument to this Court, asserting that the interpretation set forth by the Department of Revenue would have the effect of discouraging taxpayers from paying their taxes to avoid the risk of interest and penalties, and then pursuing a refund claim to retrieve the tax that is not owed.
The Department of Revenue argues, instead, that it was and is authorized, on a retroactive basis, to reopen assessments based upon a taxpayer's return, or to assess property that was omitted or not reported on tangible personal property tax returns. Further, it notes that taxpayers who disagree with assessments, or modifications to assessments, have the right to protest pursuant to KRS 131.110. Thus, the Department of Revenue argues that in the case of an assessment based solely upon an initial return, which is not modified, the taxpayer's protest and appeal rights would not be triggered. Instead, the taxpayer would receive his or her tax bill from the sheriff later in the year, and would have two years from the date of payment to obtain a refund if the taxpayer discovers that an error has been made.
Citing to the Department's online "Frequently Asked Questions: Property Tax" available at http://revenue.ky.gov/FAQ/, page 8, in response to " How do I amend a previously filed return? How long do I have?" "[T]axpayer has 2 years from the date of payment to file [an] amended [tangible personal property tax] return which would result in a refund."
In addition, the Department of Revenue argues, the correction or exoneration procedures under KRS 133.110 and KRS 133.130 are not subject to any forty-five-day deadline and would be available to obtain a refund within the full two-year period. Apparently, the Department of Revenue argues that it is only in the specific situation at issue in the matter sub judice that a taxpayer must protest within forty-five days of receipt of the assessment and prior to paying the taxes. Thus, it appears that the primary distinction urged by the Department of Revenue is that the General Assembly intended to make a delineation between the refunds of property taxes paid in response to a tax bill issued by the sheriff as opposed to an assessment directly from the Department of Revenue.
In response, Cox asserts that a taxpayer should not forever waive the right to pursue a refund claim simply because the initial tax assessment was not protested. It argues that a refund claim is properly made so long as it is filed with the Department of Revenue within two years of the payment of the tax; and if the claim is denied, the denial is protested as provided in KRS 131.110. It argues that KRS 134.590(2) is effectively divided into two parts: the first of which provides the requirements of a proper refund claim, and the second provides the administrative remedy procedures in the event the refund claim is denied. It asserts that KRS 134.590 merely provides that the appropriate agency must issue a refund when it determines that the taxpayer paid property taxes that were not owed, and that it is absurd to suggest that the General Assembly intended to make a delineation between the refund of property taxes paid in response to a tax bill issued by the sheriff as opposed to the Department of Revenue.
Cox particularly draws this Court's attention to the final portion of KRS 134.590(2), which provides that "other administrative remedy procedures" may be applicable, depending on the circumstances. Cox asserts that this is a clear acknowledgement that there are other administrative remedy procedures aside from the protest of an initial assessment pursuant to KRS 131.110, including the protest of a refund denial, which are applicable when warranted. Cox argues that it complied with the mandates of KRS 134.590 in the matter sub judice and was, accordingly, entitled to a refund.
Finally, the Department of Revenue asserts that the circuit court substituted its own public policy views in disregarding the "plain meaning" of the last sentence of KRS 134.590(2). Specifically, it takes issue with the court's statement that, "Requiring a taxpayer to pay taxes under protest as a mandatory pre-condition of asserting a refund claim later simply erects unnecessary procedural obstacles to obtaining a refund," and its additional statement that the taxpayer's protest of the denial of its refund claim is "all the doctrine of exhaustion of remedies can or should require."
The Department of Revenue argues that it was not the province of the court to discuss its opinions as to what legislative enactments should or should not require. It thus asserts that the court erred as a matter of law in failing to enforce a legitimate and salutary condition on the right to seek an ad valorem tax refund. It asserts that Cox was given an opportunity to protest and appeal its assessments, that it failed to do so, and that, accordingly, it cannot now obtain a refund under KRS 134.590.
In response, Cox asserts that it is the Department of Revenue's position which is contrary to public policy. It argues that it is against public policy to assert that taxpayers cannot retrieve erroneously paid taxes simply because the taxpayer received a bill from the Department of Revenue and not from the sheriff. In so arguing, it notes that the two-year statute of limitations applicable to property taxes is already half of the limitations period provided for most other taxes.
See KRS 134.580, providing a four-year statute of limitations for other taxes.
Having reviewed the record, the aforementioned arguments of the parties, and the applicable law, we affirm. While the Department of Revenue asserts that our holding in Castleton is inapplicable to the matter sub judice, we cannot agree. Taxpayers have the right to determine their accurate tax liability, both before and after payment of the taxes assessed. While the Department of Revenue argues that the holding in Castleton is inapplicable because the refund claim was governed by a different refund statute from that at issue in the matter sub judice, we disagree.
The KBTA determined that the same principle that governed refunds under KRS 134.580 should apply to property tax refunds under KRS 134.590. We agree with the circuit court that KBTA's interpretation in that regard was reasonable, and we decline to disturb it herein. Although KRS 134.590 was amended subsequent to Castleton to condition an ad valorem tax refund on the exhaustion of administrative remedies, we do not find that such amendment alters the applicability of that holding herein. We are in agreement with both the KBTA and the circuit court that the interpretation asserted by the Department of Revenue would effectively require the exhaustion of two administrative remedies rather than one. As we have repeatedly held, we presume that the legislature did not intend an absurd result. Workforce Development Cabinet v. Gaines, 276 S.W.3d 789, 793 (Ky. 2008). Requiring a taxpayer to protest taxes prior to payment as a mandatory condition in order to later request a refund creates unnecessary and inefficient procedural obstacles for the taxpayer. We cannot presume that the legislature intended such a result.
Clearly, KRS 131.110 provides that a taxpayer who disagrees with an initial assessment has the right to protest the proposed increase before paying it within forty-five days. This does not, however, preclude those taxpayers who have already paid the tax from seeking a refund of those monies if they later discover that the amount assessed was in error. This Court is of the opinion that once the tax is paid, KRS 134.590 provides taxpayers with a two-year window to retrieve property taxes that were not owed.
We are in agreement with the interpretation asserted by Cox that the "or other administrative remedy procedures" language at the end of KRS 134.590(2) is an acknowledgement that a protest pursuant to KRS 131.110 is not the only administrative remedy procedure that may be applicable in a refund situation. Indeed, the disjunctive use of the word "or" which joins "other administrative remedy procedures," evidences, in the opinion of this Court, an intention that all prior references in the sentence are not to be treated as conjunctive, or in steps, but in the disjunctive. This affords the taxpayer the option to use any one and maybe all of the administrative remedies available.
We note that the statute also states that "Denials of refund claims or applications may be protested and appealed in accordance with KRS 131.110 and 131.340." KRS 134.590(2). The use of the word "may" is usually found to be permissive, in contrast to the use of the word "shall," and while this issue was not argued to this Court, it may have some bearing on the interpretation of the statute.
All that KRS 34.590 requires is that taxpayers must exhaust their administrative remedies before a refund may be obtained. Cox did so in the matter sub judice. In reviewing the record, we note that it is undisputed that the refund claim submitted by Cox on July 10, 2007, was filed well within the two-year statute of limitations provided by KRS 134.590. It is further clear that the claim was submitted in writing, again per the requirements of the statute. It is equally clear that upon denial of the refund by the Department of Revenue, Cox protested that denial in accordance with KRS 131.110, and exhausted the administrative remedies available.
Having reviewed KRS 134.590 in detail, we simply cannot find language therein, or in any other property tax statute, which would support the position that the payment of a tax bill issued by the Department of Revenue nullifies the taxpayer's right to claim a refund if it is later learned that the tax was paid in error. We simply do not think that the General Assembly intended that the two-year property tax refund statute be limited to situations in which property taxes are paid to the sheriff and not to those which are paid in response to an assessment issued by the Department of Revenue.
As the circuit court correctly noted, our legislature has vested the KBTA with the authority to act as the final administrative decision-maker concerning interpretation of the Commonwealth's revenue statutes. In the matter sub judice, the KBTA, following a formal adjudication, found that Cox was entitled to pursue a refund. The circuit court, having reviewed that construction, found that it was neither arbitrary nor capricious, and that the KBTA applies the correct rule of law to the undisputed facts. While we review issues of statutory construction de novo, we are in agreement with the KBTA's construction of the pertinent statutory provisions, and decline to find otherwise herein.
Wherefore, for the foregoing reasons, we hereby affirm the August 27, 2009, Opinion and Order of the Franklin Circuit Court, and remand this case to the Department of Revenue with instructions to fully consider and make a determination upon the merits of Cox's refund claims.
LAMBERT, SENIOR JUDGE, CONCURS IN RESULT ONLY.
COMBS, JUDGE, CONCURS AND FILES SEPARATE OPINION.
COMBS, JUDGE, CONCURRING:
I concur in full with the well reasoned majority opinion. I would simply note as a postscript that I deplore the Department's criticism of the public policy discussion in the opinion of the circuit court. The opinion was well founded on the law and eloquently articulated as to public policy concerns, which are most assuredly at the heart of all judicial writing. The criticism by the Department was an ill-founded distraction from the issue before us on appeal.
A survey of our caselaw reveals that this Court and the Alabama Supreme Court have applied a case-by-case approach in determining whether a defendant presented a reasonable theory of defense through his own testimony sufficient to warrant jury instructions on requested lesser-included offenses. Alabama courts have repeatedly stated that the trial court can refuse to charge on a lesser-included offense only when "(1) it is clear to the judicial mind that there is no evidence tending to bring the offense within the definition of the lesser offense, or (2) the requested charge would have a tendency to mislead or confuse the jury." See, e.g., Williams, 675 So. 2d at 540-41, quoting Anderson, 507 So. 2d at 582; Ex parte Stork, 475 So. 2d 623 (Ala. 1985), quoting Ex parte Chavers, 361 So. 2d 1106 (Ala. 1978) Although neither this Court nor the Alabama Supreme Court has explicitly defined what constitutes a reasonable theory of defense or has developed a test by which other courts can weigh the reasonableness of a theory, we can see two overarching considerations spanning cases addressing this issue: (1) how does the defendant's theory comport with the evidence presented by both the defendant and the State at trial, and (2) how would the jury reach a hypothetical verdict in which it convicted the defendant of a lesser-included offense.
1. The self-serving statement and other evidence.
In Harbin v. State, 14 So. 3d 898 (Ala. Crim. App. 2008), this Court discussed situations in which a self-serving statement did not present a "reasonable or rational theory of the evidence" when viewed in the context of the other evidence presented at trial and, thus, did not entitle a defendant to lesser-included jury instructions. We explained:
"Harbin also contends that the trial court erred in refusing to instruct the jury on criminally negligent homicide as a lesser-included offense of murder. He maintains that there was evidence — specifically, his two statements to police in which he claimed that he forgot that the knife was in his hand when he stabbed Harris — to support the charge.
". . . .
"In this case, there was no reasonable or rational theory from the evidence to support a charge on criminally negligent homicide. The only evidence supporting such a charge, as Harbin concedes, is his own statements to police in which he claimed that he had forgotten that the knife was in his hand when he stabbed Harris. However, in Ex parte McWhorter, 781 So. 2d 330 (Ala. 2000), the Alabama Supreme Court recognized that, in certain situations, an accused's self-serving statements may not be sufficient, alone, to warrant an instruction on a lesser-included offense. In Ex parte McWhorter, the appellant had given a statement to the police in which he initially stated that he was so intoxicated at the time of the crime that he did not remember it. However, as the interview with police continued, the appellant began to remember how the crime was committed, and he confessed, providing great detail. On appeal, he argued that the trial court had erred in not instructing the jury on a number of lesser-included offenses, including felony murder, intentional murder, and manslaughter, based on his statement to the police that he had been intoxicated at the time of the crime. In finding that the trial court had not erred in not instructing the jury on the lesser-included offenses, the Supreme Court stated:
"`The evidence offered by McWhorter as to his alleged intoxication was glaringly inconsistent with his own statement giving detailed descriptions of the events occurring at the crime scene. No evidence substantiated his claim to have been intoxicated at the time of the killing, and, indeed, the other evidence as to his condition at the time of the crime was totally consistent with the proposition that he was sober. We hold that McWhorter's self-serving statements suggesting he was intoxicated at the time of the killing, statements made in his internally inconsistent interview by Detective Maze, is, as a matter of law, insufficient to satisfy the rigorous standard of showing that the intoxication relied upon to negate the specific intent required for a murder conviction amounted to insanity.'
" Ex parte McWhorter, 781 So. 2d at 342 (emphasis added).
"Subsequently, in Clark [ v. State, 896 So. 2d 584, 641 (Ala. Crim. App. 2000) (opinion on return to remand)], supra, this Court, relying on Ex parte McWhorter, held that the trial court had not erred in not instructing the jury on heat-of-passion manslaughter when the only evidence supporting such an instruction was the appellant's own statement to police. We explained:
"`Although McWhorter did not involve the same factual situation as that presented here, we find the Alabama Supreme Court's opinion in McWhorter to be persuasive in our resolution of this issue. In this case, as in McWhorter, the only evidence supporting a charge on heat-of-passion manslaughter was Clark's self-serving statement to the police. Although that statement was not internally inconsistent, as was the statement in McWhorter, it was directly refuted by undisputed physical evidence from the crime scene. When police officers arrived at the crime scene, the stick that Clark claimed Ewing had wielded as he approached Clark in front of the checkout counter was found propped up on end against the wall in a corner behind the counter. Under Clark's theory of the case, either he or a stabbed and bleeding Ewing must have taken the time at some point either during the struggle or after the struggle to walk behind the counter and place the stick on end up against the wall. This theory is simply not reasonable.
"`We will not find plain error in a trial court's refusal to instruct a jury on a lesser-included offense where the only evidence tending to bring the crime within the definition of that lesser-included offense is a defendant's self-serving statement and where that statement is directly refuted by undisputed physical evidence. We hold, therefore, that under the circumstances in this case, it was not plain error for the trial court not to instruct the jury on heat-of-passion manslaughter as a lesser-included offense of capital murder.'
" Clark, 896 So. 2d at 642.
"Here, as in Ex parte McWhorter and Clark, the two statements Harbin made to police were the only support for a charge on criminally negligent homicide. Although Harbin consistently asserted in both statements that he had forgotten that the knife was in his hand when he stabbed Harris, another crucial part of his statements contained a glaring inconsistency — in his first statement, Harbin admitted that he had pulled the knife out in response to the fight, while in his second statement Harbin stated that he already had the knife out and was cleaning his fingernails in the parking lot of the gas station when the fight broke out. In addition, the undisputed evidence indicated that the knife used by Harbin was over seven inches long and that Harris suffered from not one, but three, separate stab wounds. Under Harbin's theory of the case then, he stabbed Harris three separate times while holding a knife over seven inches long without knowing it. This theory is simply not reasonable."14 So. 3d at 909-12.
From McWhorter, Clark, and Harbin, we are able to glean three important factors that must be considered when determining whether a defendant's self-serving statement established a reasonable theory of defense sufficient to entitle the defendant to requested lesser-included jury instructions. First, we must consider whether other evidence presented at trial substantiated the claim presented by the defendant's self-serving statement. See McWhorter, 781 So. 2d at 342 (McWhorter's theory that he was intoxicated was unreasonable based, in part, upon the fact that no evidence presented at trial corroborated this claim). Second, we must consider whether the defendant's contention is directly refuted by undisputed physical evidence. See, e.g., id. ("the other evidence as to [McWhorter's] condition at the time of the crime was totally consistent with the proposition that he was sober"); Clark, 896 So. 2d at 642 ("We will not find plain error in a trial court's refusal to instruct a jury on a lesser-included offense where the only evidence tending to bring the crime within the definition is a defendant's self-serving statement and where that statement is directly refuted by undisputed physical evidence."). Finally, we must consider whether the defendant's contention is implausible or absurd. See Harbin 14 So. 3d at 912 ("Under Harbin's theory of the case then, he stabbed Harris three separate times while holding a knife over seven inches long without knowing it. This theory is simply not reasonable."). Although no single factor is dispositive in determining the reasonableness of a defense theory, they provide useful guideposts in reviewing whether the trial court's decision not to give requested jury instructions on lesser-included offenses was justified given the specific evidence presented at trial by both the State and the defendant.
Here, when we apply these considerations to Beemon's self-serving testimony, it is apparent that Beemon's theory of the case is an unreasonable one, given the evidence presented at trial. Beemon presented no corroborating evidence tending to show that he served only as the wheelman for the armed robbery or to support his contention that he remained in his vehicle during the robbery. Beemon's claim was refuted by Lisa Boone's testimony that she saw Beemon's vehicle during the time the armed robbery took place, but did not see anyone inside the car. Furthermore, Beemon claims that he was in control of his car on the night of the armed robbery and that no one else drove the vehicle, but he also claimed that he had never before seen the gloves covered in Praful Patel's blood recovered from the floorboard underneath the driver's seat in his vehicle. Beemon's theory with respect to the gloves linking him to the armed robbery amounts to nothing more than a claim of ignorance. This is patently unreasonable. We cannot say that the trial court erred in determining that Beemon's self-serving statement was not sufficient as a matter of law to create a reasonable theory of the evidence when considered in the context of the other evidence presented at trial.
2. The hypothetical lesser-included convictions.
In determining whether a defendant has presented a reasonable theory of the evidence, our courts have hypothesized as to what specific evidence presented by both parties a jury would have to piece together in order to convict a defendant on a lesser-included offense. In situations where a hypothetical conviction on a lesser-included offense would have required the jury to unreasonably piece together the facts presented, our courts have held that the defense theory is unreasonable and insufficient to establish that the defendant was entitled to the lesser-included instruction. In Warren, the Supreme Court held that the defendant was not entitled to a jury instruction on third-degree robbery as a lesser-included offense of first-degree robbery on the ground that the jury's verdict would require an unreasonable assimilation of the facts presented. The Court explained:
"In Ex parte Hannah, 527 So. 2d 675, 677 (Ala. 1988), this Court stated:
"`As [ Chavers v. State, 361 So. 2d 1106 (Ala. 1978),] holds, a court may properly refuse to charge on lesser included offenses when it is clear to the judicial mind "that there is no evidence tending to bring the offense within the definition of the lesser offense."`
"In Ex parte Hannah, this Court found that the defendant presented evidence at trial denying that a robbery of any kind had occurred and that in order for the jury to reach the conclusion that the lesser offense of robbery in the second degree had occurred, it would have had to presume that witnesses for both the petitioner and for the prosecution were lying. 527 So. 2d at 677.
"`It logically follows, we think, that where the evidence permits no reasonable conclusion other than that defendant is guilty of robbery in the first degree as expressly charged or not guilty of any offense whatever, charges as to robbery in the second or robbery in the third degree should not be given. The trial court was correct in limiting its oral charge accordingly.'
" Richburg v. State, 416 So. 2d 1079, 1082 (Ala. Crim. App. 1982).
"If Warren's entire testimony was to be believed, then he would not be guilty of any kind of robbery because he neither had a weapon nor made a threat. The only way the jury could convict Warren of third-degree robbery was if the jury believed that both Knox and Warren had lied and then cobble together various elements of their contrasting testimony to reach a compromise verdict. In other words, a conviction for third-degree robbery would require the jury to believe the victim's testimony that Warren threatened her and disbelieve his testimony that he did not threaten her, and to disbelieve her testimony that he had an anchor and believe his testimony that he did not. This very closely resembles the scenario in Ex parte Hannah.
"An instruction on third-degree robbery was not required under the facts here. The trial court did not err when it failed to instruct the jury on the lesser-included offense of robbery in the third degree."35 So. 3d at 642-43.
Likewise, this Court has recognized that a defendant's theory of defense is unreasonable if it requires the jury to unreasonably piece together facts sufficient to support a conviction for the lesser-included offense and calls for the jury to speculate as to what happened. In Boyd v. State, 699 So. 2d 967 (Ala. Crim. App. 1997), this Court explained:
"Here, the appellant completely denied any sexual contact (as that term is defined in § 13A-6-60(3), Ala. Code 1975) with the victim and claimed that he merely masturbated in her presence; his position is inconsistent with his request for instructions on first degree sexual abuse, § 13A-6-66(a), Ala. Code 1975. In addition to testifying that the appellant pulled off her shorts and underwear, that he unbuttoned and unzipped his pants, and that she saw his pubic hair before she lost consciousness, the victim testified that, after the attack, there was wetness and soreness in her vaginal area, that she felt that the appellant had penetrated her, and that she `felt as though something had been inside me like I do after I have sex.' (R. 152-53.) In order for the jury to reach the conclusion that the appellant was guilty only of sexual abuse as a lesser included offense of rape in the first degree, it would have had to conclude both that the appellant was lying and that the victim's testimony should be discounted insofar as she stated that she felt she had been penetrated in a manner consistent with sexual intercourse. The jury would then have to somehow infer and speculate that what really happened was that the appellant committed some sort of sexual contact that caused the victim to experience the same sensation that she would have had had she been penetrated in a manner consistent with sexual intercourse, although no sexual intercourse was involved. While not impossible, such a scenario calls for substantial speculation and would not be derived from any evidence that was presented. We agree with the state's argument that an instruction on sexual abuse would have been inappropriate because there was no evidence of sexual contact `other than that contained within the penetration which by definition made the appellant's action rape in the first degree.' (State's brief at 32.) An instruction on sexual abuse in the first degree would merely have encouraged the jury to reach a `compromise' verdict based on speculation. `Since the appellant denied that "any act" between the parties occurred and since there was no "reasonable theory" presented at trial to support a lesser offense, the trial court had no obligation to charge on a lesser offense.' Kirksey v. State, 475 So. 2d 646, 648 (Ala. Cr. App. 1985)."699 So. 2d at 972-73. Similarly, in Ingram v. State, 570 So. 2d 835 (Ala. Crim. App. 1990), this Court explained:
"In this case, we find that the evidence simply does not support a verdict of sexual abuse in the second degree. In order for the jury to reach the conclusion that the appellant was guilty only of sexual abuse in the second degree as a lesser included offense, it would have to conclude that both the victim and the appellant were lying. It would then have to somehow infer and speculate that what really happened was that the appellant had sexually abused the victim but that no forcible compulsion was involved. We find no evidence to support such a conclusion. An instruction on the offense of sexual abuse in the second degree would only have encouraged the jury to reach a `compromise' verdict based on speculation. `Since the appellant denied that "any act" between the parties occurred and since there was no "reasonable theory" presented at trial to support a lesser offense, the trial court had no obligation to charge on a lesser offense.' Kirksey v. State, 475 So.2d 646, 648 (Ala. Cr. App. 1985). See also Ex parte Hannah, 527 So. 2d at 676-677."570 So. 2d at 838.
Here, in order for the jury to convict Beemon of either second-or third-degree robbery, it would have to believe his testimony that he knew about the robbery and that he was willfully driving Cargill to participate in the robbery. The jury would also have to believe Beemon's testimony that he never left the vehicle during the course of the robbery and disbelieve Boone's testimony that she did not see anyone in Beemon's vehicle at the time the armed robbery was taking place. Because Beemon did not testify that two or more robbers were actually present in the house, in order to convict Beemon of second-degree robbery, the jury would have to believe the victims' testimony that two or more robbers participated in the actual robbery of the house. Additionally, if the jury were to convict Beemon of third-degree robbery, it would have to disregard the victims' testimony that four robbers perpetrated the armed robbery of the Patel household.See Jackson v. State, 969 So. 2d 930 (Ala. Crim. App. 2007), quotingFantroy v. State, 560 So. 2d 1143 (Ala. Crim. App. 1989) (a wheel man to a robbery with only one accomplice could be convicted only of third-degree robbery, not second-degree robbery, because he was not actually present during the robbery, and second-degree robbery under § 13A-8-42 requires that two robbers be present). This would be a completely unreasonable verdict given the evidence presented at trial.
Furthermore, the jury would have to believe either (1) Beemon's testimony that he did not know an armed robbery was taking place inside the house, (2) Beemon's testimony that he did not know if Cargill was armed when he left his vehicle to participate in the robbery, or (3) that the victims' testimony that all the robbers were armed with either a pistol or stungun was false. Finally, the jury would essentially have to disregard the glove found in Beemon's car, which was covered in blood matching the genetic profile of Praful Patel and containing on the inside DNA material matching Beemon's genetic profile. Even though Praful Patel testified that his assailant, as well as the other robbers, wore gloves during the armed robbery, the jury would have to conclude that the glove recovered from Beemon's vehicle was not his and would have to believe Beemon's testimony that he did not know how that glove ended up on the floorboard of his vehicle under the driver's seat or would have to speculate as to how the glove ended up under Beemon's seat without his knowing, even though Beemon had testified that he was in control of the vehicle at all times on the night in question. This is simply an unreasonable assimilation of the facts presented.
Accordingly, a hypothetical conviction for either second-or third-degree robbery would require the jury to believe and disbelieve bits and pieces of both Beemon's testimony and the evidence presented by the State at trial. A conviction for either lesser-included offense would necessarily require the jury to disregard — or to find unpersuasive — unrefuted physical evidence presented by the State. Similarly, the jury would have to disbelieve testimony by the State's witnesses while accepting as truth Beemon's trial testimony even though he admitted on the stand that he had lied several times already to investigators regarding the nature of his involvement with the armed robbery. Thus, any conviction for a lesser-included offense would have necessarily required the jury to piece together a verdict in a wholly irrational and speculative manner.
The only evidence tending to bring the crime within the definition of second-or third-degree robbery was Beemon's self-serving testimony, which was strongly refuted by overwhelming physical evidence presented by the State. Based upon the contradictory nature of Beemon's testimony, the overwhelming evidence presented by the State regarding the nature of the crime and Beemon's involvement, and Beemon's admissions regarding his involvement with the robbery of the Patel household, the trial court did not abuse its discretion in determining that Beemon presented an unreasonable theory of defense. Accordingly, the trial court did not commit reversible error by denying Beemon's requested jury instructions on the lesser-included offenses of second-degree and third-degree robbery.
II.
Beemon also argues that the trial court erred in allowing the State to question Beemon about a prior conviction for third-degree assault. Beemon contends that the State's introduction of evidence concerning this misdemeanor conviction was improper impeachment evidence under Rule 609, Ala. R. Evid., and, thus, constituted reversible error.
At trial, Beemon testified in his own defense. Early in Beemon's testimony, counsel asked Beemon how far he went in school, to which Beemon indicated that he had completed the 11th grade. During cross-examination, the following exchange took place:
"[The State]: Okay. Now, let me ask you this: You testified a minute ago that you completed school up to the 11th grade. How come you didn't finish up?
"[Beemon]: I had a job, and they said it was best to go get my GED because I was missing too many classes.
"[The State]: Wait. Are you saying the principal told you you shouldn't finish school?
"[Beemon]: Because of my absences.
"[The State]: Well, why were you absent so much?
"[Beemon]: Job.
"[The State]: Okay. Now, what's the time frame we're talking about? What was your senior year toes [sic] supposed to have been?
"[Beemon]: 2008, sir.
"[The State]: 2008? Starting in 2008 or going to end in 2008?
"[Beemon]: End of 2008 I would have been graduated.
"[The State]: End of 2008?
"[Beemon]: Yes, sir.
"[The State]: So on August 31st of 2007, you were supposed to be in the 12th grade theoretically?
"[Beemon]: Yes, sir.
"[The State]: What were you doing that day?
"[Beemon]: I was —
"[Defense counsel]: May we approach, Your Honor? Objection. May we approach?
"[Outside the presence of the jury] I object. He is trying to get into a misdemeanor that would not be admissible under the rules.
"[The State]: The only reason he was out of school isn't because of his job and his work. In fact, he was in jail on an assault on a police officer that same day.
"[Defense counsel]: That's a misdemeanor. That is not admissible under the rules.
"[The State]: I didn't ask him about the school. She's the one that brought it up. She opened the door.
"[Defense counsel]: Asking how far he went in school does not open the door to —
"THE COURT: Of course you asked —
"[Defense counsel]: I simply said how far did you go in school. He said 11th grade. I didn't ask about a specific day in school. It's just a qualifying, like where do you live.
"THE COURT: Overruled."
(R. 292-93.) The State proceeded to elicit testimony from Beemon in which he admitted that he was in jail on third-degree-assault charges at the time he would have otherwise been starting his senior year of high school.
"The admission or exclusion of evidence is a matter within the sound discretion of the trial court." Taylor v. State, 808 So. 2d 1148, 1191 (Ala. Crim. App. 2000), aff'd, 808 So. 2d 1215 (Ala. 2001). "The question of admissibility of evidence is generally left to the discretion of the trial court, and the trial court's determination on that question will not be reversed except upon a clear showing of abuse of discretion." Ex parte Loggins, 771 So. 2d 1093, 1103 (Ala. 2000). 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).
Under Rule 609, Ala. R. Evid., the State may introduce evidence of prior felony convictions, but not misdemeanor convictions, in order to impeach the credibility of the accused at trial. The State argued at trial and on appeal that defense counsel's asking Beemon on direct examination how far he went in school and Beemon's testifying that he only completed school through the 11th grade, opened the door to questioning regarding why Beemon completed only the 11th grade.
The questions that allegedly opened the door for the State were nothing more than introductory questions about the witness. Counsel asked Beemon how far he went in school to which he replied, "eleventh grade." (R. 270.) This was the extent to which direct examination covered Beemon and school. It would be unreasonable to conclude this one question and answer opened the door and allowed the State to probe into why Beemon stopped attending school after the 11th grade. Furthermore, although Beemon testified on cross-examination that he did not finish school because of work and because he was missing too much school, the issue was blatantly interjected into the trial by the prosecution. The State cannot open the door to otherwise inadmissible evidence based upon its own line of examination. See Ex parte Ray, [Ms. 1061459, May 29, 2009] ___ So. 3d ___ (Ala. 2009) (holding the State could not introduce evidence of an otherwise inadmissible juvenile conviction when the door was allegedly opened only pursuant to the State's cross-examination of the defendant). Because Beemon did not "open the door" to testimony regarding his third-degree-assault conviction, the trial court abused its discretion in allowing the State to introduce evidence of that conviction.
Nevertheless, we conclude that the admission of evidence of the prior conviction, although error, was harmless error. The harmless-error rule provides, in pertinent part:
"No judgment may be reversed or set aside . . . on the ground of . . . improper admission or rejection of evidence, . . . unless in the opinion of the court to which the appeal is taken or application is made, after examination of the entire cause, it should appear that the error complained of has probably injuriously affected substantial rights of the parties."
Rule 45, Ala. R. App. P.
In Chapman v. California, 386 U.S. 18 (1967), the United States Supreme Court held that before the violation of certain constitutional rights can be held to be harmless, the appellate court must be able to declare a belief that it was harmless beyond a reasonable doubt. In Ex parte Crymes, 630 So. 2d 125 (Ala. 1993), the Alabama Supreme Court explained:
"In determining whether the admission of improper testimony is reversible error, this Court has stated that the reviewing court must determine whether the `improper admission of the evidence . . . might have adversely affected the defendant's right to a fair trial,' and before the reviewing court can affirm a judgment based upon the `harmless error' rule, that court must find conclusively that the trial court's error did not affect the outcome of the trial or otherwise prejudice a substantial right of the defendant."630 So. 2d at 126. See also Ex parte Greathouse, 624 So. 2d 208, 210 (Ala. 1993) (holding that the proper harmless-error inquiry asks, absent the improperly introduced evidence, "is it clear beyond reasonable doubt that the jury would have returned a verdict of guilty").
Although the admission of the testimony of the prior conviction for third-degree assault was improperly admitted into evidence, we cannot say that Beemon was prejudiced to the point of calling into question the validity of his conviction. Beemon's theory of defense was nothing more than a claim that he was the "wheel man" in the armed robbery and not an active participant. We have reviewed the record, and it is clear beyond a reasonable doubt that the jury would have returned a guilty verdict even without the evidence of the prior conviction. The State presented unconverted evidence that an armed robbery took place inside the Patel residence. Praful Patel testified that he was pistol-whipped by one of the robbers and that all the robbers were wearing gloves while they were committing the armed robbery. Investigators recovered a bloody glove from the floorboard under the driver's seat in Beemon's vehicle. The DNA profile of the blood matched Praful Patel, and the profile of the DNA matter recovered from inside the glove matched Beemon's DNA profile. Beemon admitted that he was parked outside of the Patel residence at the time of the robbery. He also admitted that he knew a robbery was going on at the Patel household and that he knew Cargill was going to participate in the robbery once they arrived at the residence. Although he claimed he never got out of his vehicle, Lisa Boone testified that she saw the vehicle belonging to Beemon parked on Towne Lake Place during the time the armed robbery occurred, but she testified that she did not see anyone inside the vehicle.
Given the evidence presented at trial, the circuit court's erroneous admission of testimony regarding the prior altercation did not affect the outcome of the trial or otherwise prejudice a substantial right of Beemon. See, Crymes, 630 So. 2d at 126. Moreover, based on our review of the record, it is "clear beyond a reasonable doubt that the jury would have returned a verdict of guilty" regardless of the trial court's erroneous admission of evidence of Beemon's conviction for third-degree assault. Greathouse, 624 So. 2d at 210. See also, Chapman, supra. Therefore, any error on the part of the trial court was harmless, and no basis for reversal exists as to this claim.
Based on the foregoing, the judgment of the trial court is due to be affirmed.
AFFIRMED.
Welch, Windom, and Main, JJ., concur. Wise, P.J., recuses herself.
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