author: WELCH, Presiding Judge.

text:
    Lonnie BAILEY v. STATE of Alabama.
    CR-08-1759.
    Court of Criminal Appeals of Alabama.
    Feb. 25, 2011.
    Rehearing Denied April 22, 2011.

      Chris Malcom, Moulton, for appellant.
    Troy King, and Luther Strange, attys. gen., and Audrey K. Jordan, asst. atty. gen., for appellee.
   WELCH, Presiding Judge.

Lonnie Bailey was indicted for and convicted of three counts of capital murder for his involvement in the shooting death of Melvin Key. Count I of the indictment charged Bailey with murder during the course of a first-degree burglary, committed while he or his codefendant, Harold Wayne Bailey, was armed with a gun, a violation of § 18A-5-40(a)(4), Ala.Code 1975; Count II charged Bailey with murder during the course of a second-degree burglary, a violation of § 13A-5-40(a)(4), Ala.Code 1975; and Count III charged Bailey with murder during the course of a robbery, a violation of § 13A-5-40(a)(2), Ala.Code 1975. Before the case was tried, the parties stipulated that the State would not seek the death penalty if Bailey was convicted of capital murder. Bailey was tried by a jury and was convicted of the three counts alleged in the indictment. The trial court imposed sentences of life imprisonment without the possibility of parole as to each conviction. This appeal follows. We reverse and remand for further proceedings.

Facts

The State presented evidence showing the following. On January 15, 2004, 71-year-old Melvin Key was killed when a single shot from a .410 shotgun was fired into his chest from 5 to 10 feet away. The front door of Key’s house appeared to have been forced open, and the latch was found on the floor several feet from the front door, at the threshold of a bedroom. Key’s body was found in his bedroom; he was in a kneeling position with his arms and elbows on the bed, his legs on the floor, and his feet against the wall. Key was facing the bedroom door. The medical examiner testified that the shotgun pellets entered Key’s heart, lungs, and liver, and that he died within several minutes. Key’s right hand also had been struck with shotgun pellets from the single shot. The medical examiner testified that Key could not have been holding anything in his right hand when it was struck because the pellets entered his hand through the tips of his fingers and his thumb, indicating that his fingers had been extended and he had his hand up in front of his body when he was shot.

A flashlight and a loaded .38 caliber handgun with the hammer pulled back were found on the bed near Key’s hands, beneath a bed sheet. Law-enforcement witnesses testified that they did not see the gun or flashlight during the investigation until they prepared to move Key’s body and they removed the sheet that had been covering his hands. The handgun was near Key’s left hand and the flashlight was near Key’s right hand; testimony established that Key was right-handed.

An expended .410 shotgun shell was recovered at the scene. The scene was not processed for fingerprints or footprints, although a few items — including the expended shotgun shell — were sent to the Alabama Bureau of Investigation (“ABI”) for examination for latent prints. No latent prints were identified. A .38 caliber handgun was found on the table outside the bedroom of Steven Key (“Steven”), Key’s son. ABI agent William Burke testified about the crime scene and theorized:

“[t]hat someone kicked in the front door and made their way to Mr. Key’s bedroom door and in that time frame, Mr. Key had enough time to get out of bed and get in that position that you saw him on the photos and he had his gun and his flashlight pointing toward the bedroom door and which we figure the shot came from, he was confronting the home invader.”

(R. 536-27.)

Steven Key testified that he was 52 years old and that he had been living in the house with his father and was in the house when Key was killed. Steven testified that during the evening before the murder, Key had gone to a local auction house — 101 Auction — as he regularly did. Key returned home at approximately 11:30 and he brought his son a meal from the auction’s snack bar. Steven said that he and his father retired to their bedrooms after midnight. Steven further testified that he was awakened by a loud noise that sounded like his father might have fallen, so he got out of bed and walked toward his own bedroom door. The house was dark, he said, and his bedroom door was closed but not latched because an electrical cord was in the doorway. Steven said he saw nothing, but he heard the voice of a white male scream at his father, “ ‘Give it to me or I’ll blow your GD head off.’ ” (R. 727.) Steven said he heard only one voice. Steven testified that, within seconds, he heard a gunshot from what he believed to be a large-caliber firearm. After he heard gunfire, he heard footsteps as someone left the residence, bumping into tables as he left. No one opened Steven’s door before or after the shooting, and Steven did not see anyone leave the house. Steven said that he walked out of his bedroom, turned on a light in the living room, and picked up his father’s .38 caliber handgun that had been on a table beside his father’s chair. He then went to his father’s bedroom and discovered that his father had been shot and appeared to be dead. Steven said that he did not move anything or cover up the gun that was later found next to his father’s left hand. He telephoned emergency 9-1-1 for assistance.

Law-enforcement officers at the scene after the shooting noted that Steven’s demeanor was calm and that he did not appear to be upset, which the authorities found to be unusual. Steven was initially considered a person of interest in the murder, and he retained counsel on the afternoon of the murder. Steven declined to submit to a polygraph examination with the State’s examiner, but he later arranged to undergo a polygraph examination from an examiner he had hired. Law-enforcement authorities testified that Steven was eliminated as a suspect in the murder.

Steven testified that, when the murder took place, he did not know Bailey or Bailey’s brother, Harold Wayne Bailey (“Wayne”), but that he did know Bobby Joe Reeves and his wife, Tiffany Terry. Steven said that Reeves sometimes helped Key load items for the auctions. Steven said that it was possible that Reeves and Terry had been to the Keys’ house, but if they had been there, Steven had not been home at the time. Steven testified that Key carried cash at the auctions, and he usually kept the money in the left front pocket of his shirt. Steven said that he was not aware whether his father had any money on the night of the murder, and he was not certain that any money was taken from Key when he was killed.

On cross-examination Steven acknowledged that his father had received a telephone call on the day of the murder. Steven said he believed that the call was from the woman who cooked at the snack bar at the auction. Steven said that his father and the cook often teased one another and that when he heard his father say during the conversation that he was not worried about the son of a bitch, he was not concerned because he assumed they were referring in jest to the eook’s husband, who also worked at the auction.

Steven testified that he is left-handed.

Steven said on cross-examination that within a few weeks before the murder, he had considered buying a motorcycle from Bud Brewer, who was a friend of Key’s and who was at the auction on the night of the murder. Steven said that he had gone to Brewer’s house with a friend to look at the motorcycle when he was considering buying it. He acknowledged that he was not working at the time and that, if he had decided to purchase the motorcycle, his father would have had to give him the money for it. Steven said he had talked about the motorcycle with his father, but he had not asked his father for the money. He testified that he remembered calling Brewer on the day of his father’s funeral, but that he did not remember asking Brewer whether his father had fought with anyone at the auction on the night of the murder. Steven acknowledged that his father had a life insurance policy, and that he and his sister were the beneficiaries of the policy.

A diagram of the Keys’ house was admitted into evidence, and Steven agreed that the diagram showed that the person who entered the front door of the house on the night of the murder had to walk past his bedroom to reach his father’s bedroom. The murderer did not knock on his bedroom door or push the door open, he said.

ABI Agent Burke testified that the crime was unsolved for several months and that investigators had recovered no fingerprints, no trace evidence, and no blood or hair at the crime scene other than the victim’s. Burke testified that leads were developed in November 2004, when Bobby Joe Reeves and his wife, Tiffany Terry, were arrested on drug-related charges. Reeves was incarcerated in the Lawrence County jail, and he contacted Chief Lyndon McWhorter; McWhorter was the chief investigator at the Lawrence County Sheriffs Office. Reeves had been an acquaintance of Key’s, and he said he had information about Key’s murder. Reeves offered to cooperate with law-enforcement authorities in the murder investigation in exchange for the dismissal of the drug charges pending against him and his wife. Reeves implicated the Bailey brothers in the Key murder. Reeves provided information to investigators that led to the recovery of a .410 shotgun. A firearms expert determined that the .410 shell recovered at Key’s residence had been fired from that shotgun. Agent Burke testified about authorities’ next step in the investigation:

“[W]e provided Bobby Joe Reeves with a tape recorder. We needed some incriminating statements from either Lonnie or his brother, Wayne, and we gave Bobby Joe a tape recorder. Bobby Joe Reeves drove down to their house in Marion County and talked to them and just brought up the murder to see if he could get any kind of reaction or incriminating statement to help focus on our case.”

(R. 542.)

Agent Burke testified that the tape recording of that conversation was garbled and inaudible.

Burke testified that Reeves “volunteered to go back again on his own,” and after he obtained a tape recorder from Chief McWhorter, Reeves went “back down there to try to get another incriminating statement from him.” (R. 543.) Only Wayne Bailey was involved in the second tape recording by Reeves, Burke said.

Burke testified that, next, he and other law-enforcement authorities used a four-wheeler owned by the sheriffs department as “bait as a reason for [the Baileys] to come to Lawrence County.” (R. 546.) Burke explained:

“We wanted to get Lonnie and Wayne Bailey to Lawrence County. We had one of our agents came in from Huntsville and he wired up Bobby Joe Reeves’ house. We would have more of a controlled atmosphere. So we wanted to get them to come to Lawrence County to Bobby Joe Reeves’ house where Bobby Joe Reeves can again talk to them about the murder and see if we can get some incriminating statements from them.
“We put the four-wheeler up there as an enticement or a reason for them to come to Lawrence County. And myself and Chief McWhorter, we parked at a house across the street from Bobby Joe Reeves’ in the driveway where we would have a full view of Bobby Joe Reeves’ house.”

(R. 545.)

While the Baileys were under surveillance with Reeves, the trio planned to steal the four-wheeler, but abandoned that effort and, apparently at Reeves’s suggestion, stole a tractor from a nearby farm-equipment dealer. Authorities arrested the Baileys after the tractor theft. The audio recording made during the surveillance was admitted into evidence, along with a transcript of the recording.

Tiffany Terry testified that on January 14, 2004, she was living with her common-law husband, Bobby Reeves, and their three children. Reeves died in October 2007, she said. Terry said that Reeves knew Key. Terry testified that Reeves had helped Key load and unload items for the auction, and that Reeves sometimes worked at the auction. She testified she had been to Key’s residence to help Reeves when he worked for Key. She estimated that the distance between her mobile home and Key’s residence could be traveled in approximately 15 minutes.

Terry testified that on January 14, 2004, the Baileys came to her mobile home around noon, and Lonnie Bailey told Reeves that he and Wayne needed to make some money. Terry said she heard Reeves tell Bailey that he knew someone who had money — Melvin Key. Reeves and the Baileys left in Reeves’s vehicle, and they returned at 5:00 or 6:00 p.m. Terry saw Reeves take a gun out of the back of his vehicle and give it to Wayne. She saw Wayne put the gun in the Bailey brothers’ van. Terry identified at trial the gun she said she saw Reeves give to the Baileys; that gun was the .410 shotgun that had been identified by other witnesses as the murder weapon. Terry said she had not seen Reeves with that shotgun before that day. The Baileys left the mobile home and Reeves came inside, she said.

Terry testified that at 10:00 or 11:00 that night, the Baileys knocked at their door. Reeves spoke to the men in the living room,- then the Baileys left and Reeves went to bed. In a “[cjouple of hours or so” the Baileys returned to the mobile home, Terry said. Terry was in the bedroom she shared with Reeves when she heard someone turn the water on in the bathroom next to the bedroom, and she heard heavy breathing. Terry said that she then heard the bathroom door open, and she heard Bailey say, “Baby brother, you got to pull yourself together.” (R. 885.) Terry testified that she then heard Wayne say, “I had to do it.” (R. 885.) She heard no further conversation that evening, and the Baileys left a short time later. Terry testified that when Reeves came into the bedroom, he brought the .410 shotgun with him, and he put the gun in their closet. Terry said that she did not see the shotgun again, and she does not know what Reeves did with the gun.

Terry said that she heard on the news the following day that Key had been murdered, but she did not go to the authorities because, she said, she was terrified of Reeves and the Baileys. Terry began cooperating with the police in the investigation of Key’s murder in November 2004, after she and Reeves were charged with possession of a controlled substance and possession of drug paraphernalia. Terry understood that the charges against her would be dismissed in exchange for her cooperation. She said that, as part of Reeves’s agreement to cooperate, he wore a “body wire” and secretly made audiotapes of conversations with the Baileys.

On cross-examination, Terry acknowledged that she and Reeves had been arrested at their residence while their children were present after the drug task force conducted a search. She acknowledged that she was worried about what would happen to her children if she and Reeves were convicted and sent to prison. Terry also testified that Reeves was on probation at the time of their arrest on the drug-related charges. Terry testified that Reeves sold and traded guns.

Terry also testified on cross-examination that when she went to the local auctions she noticed that Key carried a large amount of cash. Terry further stated that “everybody” saw that Key carried a large amount of money, and that “[l]ots of people told him he needed to stop doing that.” (R. 919.)

Shirley Moreland testified that on January 14, 2004, her husband owned 101 Auction and she was responsible for the snack bar at the auction. Moreland stated that, at the time of Key’s murder, the auction was open on Wednesday and Saturday every week and that Key was there every time the auction was open. Moreland said that Key had been a good customer and that they had been friends. Moreland testified that on the night of the murder, Key came into the snack bar at approximately 9:30 p.m., he ordered a meal he ate there, and he ordered a meal he took with him when he left at 10:00 p.m.

Moreland testified that after Key left two men came into the snack bar carrying two telephones shaped like the M & M brand candy characters and one telephone shaped like a Coca Cola brand drink. The men were dirty and unshaven, she said, and their hair was long. She stated that when she saw them with the three telephones she commented to them that they were going to make a few telephone calls, and one man agreed with her. Moreland said she knew most of the people who came to the auction, but she had never seen these men. At trial Moreland identified Bailey as one of the men she saw at the snack bar. She viewed a photograph of Wayne Bailey and testified that he was the second man at the snack bar. More-land testified that she had heard Lonnie Bailey say, “He’s gone,” that night at the snack bar, but she did not know who Bailey was talking about when he made the statement. (R. 973-74.) The men left the snack bar five minutes after Key left.

Moreland testified that the police interviewed her after Key was murdered, and they asked her whether she had seen Key with anyone at the auction and whether he had had an argument with anyone that night. Moreland did not tell them anything about the two men she had seen that night. She said she did not connect the men to Key’s murder when the police spoke to her. Moreland testified that after the Bailey brothers were arrested for Key’s murder and she saw their photographs in the newspaper, she remembered that she had seen the men in the snack bar that night. Moreland spoke with police officers again, and told them that she had seen the Baileys at the auction house on the night of Key’s murder.

Charles Brewer acknowledged that he was incarcerated in Alabama on a probation hold from Florida. He testified that in March 2004 he received the .410 shotgun — the murder weapon — from Reeves in exchange for a .22 rifle and $40 cash. Brewer said that he sold the gun to Mike Bolding. On cross-examination Brewer testified that he had never met Bailey and that he did not get the .410 shotgun from Bailey. Reeves brought the .410 shotgun to his house, Brewer said.

Earnest Parker, Jr., testified that he is a second cousin of the Bailey brothers. He stated that he visited the Baileys’ mother — his father’s aunt — in November 2004 because she was in ill health. Parker testified that the Bailey brothers were sitting on the porch of their mother’s house and that he spoke with them for approximately 10 minutes before he went inside to see his great aunt. Parker said that Bailey told him about his involvement in a crime:

“He just was telling me that Bobby Reeves had set up a thing to go rob a man and it didn’t go so well. They kicked in the door and the man was holding a gun and a flashlight. And Wayne told him to put the gun down three times and he didn’t, so he shot him.”

(R. 1053-54.)

Parker testified that after he had the short conversation with his second cousins, he visited with his great aunt for approximately five minutes, and then he left without having any additional conversation with the Baileys. Parker testified that he did not immediately report this information to the authorities because he was afraid of the Baileys.

Parker acknowledged that he first made these allegations to law-enforcement authorities in November 2005, within 20 minutes of being incarcerated following his arrest on two felony charges and one misdemeanor charge related to breaking into automobiles and causing damage to one of them. After Parker gave his statement to the authorities his bond was reduced, he said. Parker entered into a plea agreement with authorities before Bailey’s trial; in exchange for his testimony about the conversation with the Baileys he was allowed to plead guilty and received a suspended 18-month sentence and probation. Parker further testified that he had committed another crime after he pleaded guilty and that his probation had been revoked and he had been incarcerated.

On cross-examination Parker testified that, before November 2004, he had last seen Bailey a couple of months earlier. Parker stated that on the first day he was in jail in November 2005 he told the authorities that he knew something about the murder case. Parker testified that he had known Bobby Reeves for many years and had spoken to him on many occasions. Parker said also that Reeves had been a close friend of Parker’s father. He acknowledged that he had probably told investigators that Reeves and the Baileys went to the auction on the night of the murder and that they met Key there.

Finally, on cross-examination Parker said that he had been under the influence of two drugs when he was interviewed by the authorities about his conversation with the Baileys and that he had told the authorities repeatedly during the interview that he needed to go to the hospital. Parker said he grabbed his chest because he was having difficulty breathing, and he was having a panic attack.

Lyndon McWhorter testified that he was chief investigator at the Lawrence County Sheriffs Office on January 15, 2004, and that he traveled to the Key residence to investigate the murder. McWhorter notified the ABI of the murder, and requested assistance from the agency. McWhorter testified about his observations of the crime scene, including the lack of any fingerprints and shoe prints of value in identifying Key’s killer. He interviewed Steven Key at the scene and again later that day at the sheriffs office. Steven told McWhorter that he had heard a bang and got out of bed to investigate, then telephoned authorities after he discovered that his father had been shot. McWhorter testified that he was aware that Steven had retained an attorney and that he had made plans to undergo a polygraph examination. McWhorter said that no evidence suggested that Steven was involved in his father’s murder.

McWhorter testified that he and ABI Agent Burke interviewed several people at 101 Auction, but they did not develop any leads from those interviews.

McWhorter testified that in November 2004 Bobby Joe Reeves was incarcerated in the Lawrence County jail and wanted to speak with McWhorter. McWhorter testified that Reeves gave him information about the murder weapon that led him to speak to Charles Brewer and then to Mike Bolding. McWhorter recovered the .410 shotgun from Bolding. He stated that after forensic testing revealed that the shotgun matched the shell and the wadding found at Key’s residence, the investigators began to focus on the Baileys. McWhorter testified, “[W]e began trying to gain information by audiotapes to get evidence against them.” (R. 1140.) Reeves and his wife had been arrested on drug-related charges, McWhorter said, and Reeves wanted to cooperate with the police so that the charges against him would be dis-⅞ missed and he would be released from jail. Reeves agreed to wear a hidden transmitter and to have hidden audio surveillance equipment placed in his house to record his conversations with the Baileys. On one of those occasions the Baileys and Reeves stole a tractor from a supply company, and the Baileys were arrested, McWhorter said. The tape recording of the conversation at Reeves’s house was admitted into evidence and played for the jury, and a transcript of the recording was admitted into evidence and was distributed to the jury before the tape was played.

McWhorter stated that Bailey was interviewed at the jail after he was arrested for the tractor theft. Bailey calmly answered the investigator’s questions about the theft of the tractor, but he became agitated and angry when the investigator showed him the .410 shotgun and began asking questions about Key’s murder.

On cross-examination McWhorter acknowledged that he had instructed Reeves to attempt to elicit statements from Bailey about Key’s murder while the Baileys were being secretly audiotaped. McWhorter agreed that the transcript of the audiotape reflected that Bailey stated that he did not want to take the four-wheeler unless it was easily accessible because he did not want to have a “shootout” over it. McWhorter also acknowledged that when Reeves said the last shootout led to drama and they were still trying to charge “Steve” with that, Bailey replied, “ ‘I don’t know what you are talking about.’ ” (R. 1173-74.) He also stated that, before Reeves and his wife began to cooperate with the authorities, they had no physical evidence or other information to support Bailey’s arrest for the murder. McWhorter testified that the shotgun was recovered from Mike Bolding, that Bolding had obtained the weapon from Charles Brewer, and that Brewer had received the weapon from Reeves. McWhorter said he was unable to establish any connection between Bailey and either Brewer or Bolding.

McWhorter stated that Reeves began providing information about the murder weapon and about the Baileys after Reeves was arrested and charged with felony drug possession following a search of his residence pursuant to a warrant. McWhorter was called to the house during that arrest because the drug task force had recovered two shotguns during the search and one of the shotguns had been reported stolen in Cullman County. McWhorter gave the stolen shotgun to an investigator from Cullman County. Neither Reeves nor Terry was charged with theft of property or with receiving stolen property as a result of that incident, he said.

Christopher Waldrep testified that he was a deputy with the Lawrence County Sheriffs Department and that on May 6, 2005, he transported Lonnie and Wayne Bailey from the county jail to the county courthouse and then back to the jail. During the trip from the courthouse to the jail he heard the Baileys make several statements after they saw a man they identified as Bobby Joe Reeves at an intersection traveling in another car. Waldrep said that Bailey referred to Reeves with a profanity and that Bailey and Wayne became angry as they looked at Reeves, so Wal-drep drove away from the intersection. Waldrep testified that Wayne said to Wal-drep, “[Pjull over there and hand me your gun and I’ll show you what to do with it. I’ll take care of him.” (R. 1109.)

Waldrep testified about the rest of the conversation:

“And then Lonnie — then they started a conversation back and forth with one another. Lonnie, said, ‘Why, what are you going to do?’ And with a big smile, Wayne said, ‘Say hi.’ And they had a small laugh and then right at that point the mood changed very quickly. And Lonnie said, ‘No, no, we’ve never killed anybody before and we’re not going to start now.’ And then he said, ‘That piece of shit would say anything to stay out of jail.’ And after that then Wayne said, T don’t think I need a gun, I could beat him to death with my bare hands.’ And the rest of the conversation back and forth up to the jail was about how they were going to get compensation for false imprisonment and things like that.”

(R. 1109-10.)

Waldrep testified on cross-examination that he did not hear Bailey threaten Reeves or anyone else.

After presenting the foregoing evidence the State rested.

Bailey presented testimony from his wife, Tawana Bailey (“Tawana”). Tawana testified that she had formerly been married to the brother of prosecution witness Earnest Lee Parker, Jr., and that they had two children. Tawana stated that she had maintained contact with the Parker family because of the children. She testified that she had had conversations about this case with Parker. She stated that Parker had been incarcerated for a time and that she spoke with him after he was released from jail. She testified that Parker told her that he had been released from jail because he gave authorities a statement about the Baileys’ involvement in Key’s murder, and he said that the information he gave in the statement had come from Reeves. Tawana testified that she had had another conversation with Parker a couple of weeks before the trial. She said that Parker told her that he had already given a statement based on the information supplied by Reeves and that he could not make himself look like a liar. Tawana testified on cross-examination that, although she had known Bailey for years, she became romantically involved with him only after he was incarcerated for Key’s murder, and they married while Bailey was in jail. Tawana also testified that Reeves and Earnest Lee Parker, Sr., had been close friends, and she had seen Reeves visiting with the elder Parker when she was at the Parker home. The junior Parker was in the home on some of those occasions, Tawana stated.

Chief Lyndon McWhorter testified for the defense that he was aware of an investigation into the death of Bobby Joe Reeves, and that the investigation revealed that the death was not the result of a homicide. He also testified that as part of the investigation of Key’s murder, Bailey’s house and vehicle were searched. No items related to Key’s murder was found in either search, McWhorter said.

Defense counsel presented '’testimony from Elbert Lad Roberts in an apparent attempt to show Tiffany Terry’s bad reputation for truth and honesty in the community in which she lived, but Roberts testified that he was not familiar with others in her community. Roberts testified that he had been to Terry’s house on approximately 10 occasions and that he had gone there to purchase drugs.

Analysis

Bailey argues that the trial court erred to reversal when it allowed the State to introduce evidence of his involvement in the attempted theft of a four-wheeler and the theft of a tractor, both of which, he says, were initiated and staged by the investigators and Bobby Joe Reeves. Bailey also argues that the trial court erred when it permitted the State to present tape-recorded conversations between the Baileys and Reeves and a transcript of the conversation that included what the State argued was a plan for another home-invasion robbery. Bailey contends that admission of the evidence violated Rule 404(b), Ala. R.Evid., because, he says, it was evidence of other crimes or wrongs intended to show his bad character and that the prejudicial impact of that evidence warrants reversal of his convictions. Bailey also argues that the trial court erred when it permitted the State to argue to the jury, based on the recording made by Reeves, that Bailey was planning another home-invasion robbery.

The State argues that two witnesses— Agent Bill Burke and Chief Lyndon McWhorter — testified about the attempted theft of the four-wheeler and the theft of the tractor and that Bailey objected only to the initial testimony from Burke. Therefore, the State contends, the subsequent admission of the same testimony from McWhorter without objection from Bailey rendered innocuous any alleged error in Burke’s testimony. The State argues that Bailey failed to object to the prosecutor’s allegedly improper argument — that Bailey had made plans for another home-invasion robbery because “that’s who he is” — and that Bailey did not object on Rule 404(b) grounds to the admission of the tape-recorded conversation and the transcript of the conversation. Therefore, the State argues, those claims were not preserved for review.

A. Prese'rvation of the issues

Bailey filed a pretrial motion in limine, and he requested that the court preclude the State from presenting testimony or other evidence relating to any other crime, wrong, act, or omission, including evidence of his alleged participation in the attempted theft of the four-wheeler and the theft of the tractor, and he cited Rule 404(b), Ala. R.Evid. The trial court held a hearing on the motion and ordered the State to avoid reference to any indictment or pending charge related to the thefts but otherwise denied the motion in limine. When Agent Burke testified at trial about the sheriffs office placing the four-wheeler near Bobby Joe Reeves’s residence as “bait” to lure the Bailey brothers to Lawrence County, Bailey objected and argued that testimony about the attempted theft of the four-wheeler and testimony about the theft of the tractor were unrelated to the crimes for which Bailey was being tried, that the incidents occurred 11 months after Key’s murder, that the evidence was extremely prejudicial and was prohibited by Rule 404(b), and that its admission would deny him his right to a fair trial. The State argued:

“Judge, the evidence that we are going to present is so interwoven with this attempted theft of the four-wheeler or set up of the theft of the four-wheeler— actually the four-wheeler was never stolen, and the theft of a tractor. It really can’t be separate[d] especially since we’ve come to introduce an undercover tape that was taken at the time that this occurred.”

(R. 548.) The trial court overruled the objection, apparently on the ground that evidence of the theft explained how Bailey was taken into custody. When McWhorter testified about the theft of the tractor, Bailey objected on the same grounds as he had raised earlier. The trial court overruled the objection and stated: “I’ll note your continuing objection on that same basis on this line of testimony.” (R. 552.)(Emphasis added.) Therefore, Bailey preserved for review his claim that the trial court erred when it allowed testimony about the attempted theft of the four-wheeler and the theft of the tractor. Bailey did not need to object further to the line of inquiry during McWhorter’s testimony to preserve the argument for appellate review.

The State also claims that Bailey failed to preserve for review the alleged error in the admission of the conversation tape-recorded by Bobby Joe Reeves and the transcript of that conversation because, it says, Bailey did not object on Rule 404(b) grounds at trial. The record does not support the State’s waiver argument as to this evidence, either.

During McWhorter’s testimony the prosecutor introduced the tape recording of Reeves’s conversation with the Baileys — along with the transcript of the recorded conversation — and Bailey objected, in part on the ground that the tape included discussions of other crimes. The trial court clearly understood the basis of the objection:

“[DEFENSE COUNSEL]: Well, part of the things, like some of this other stuff, thére’s so much stuff intertwined. For example, discussions about another burglary or robbery somewhere else, discussions about the tractor, four-wheeler.
“THE COURT: So you’re saying its prejudicial impact is greater than its probative value. What else?
“[DEFENSE COUNSEL]: You’ve already ruled basically—
“THE COURT: But what else? Is there any other objection? I just want you to get your objections on the record.
“Anything else?
“[DEFENSE COUNSEL]: Object to relevance.
“THE COURT: Okay. Anything else?
“[DEFENSE COUNSEL]: No.
“THE COURT: All right. I’ll overrule objection and admit it.”

(R. 1150-51.) When the trial court admitted the transcript into evidence, it stated that it was doing so over the objections Bailey had previously made, and it granted Bailey a continuing objection. (R. 1154.)

“When the trial court understands the basis for defense counsel’s objection, a reviewing court should not be ‘too strict in its application of the waiver principle.’ ” Gamble v. State, 699 So.2d 978, 979 (Ala.Crim.App.1997) (quoting Ex parte Webb, 586 So.2d 954, 956 (Ala.1991)). The record as a whole clearly establishes that Bailey objected to the tape recording and the transcript, in relevant part, on the grounds that they included a discussion of other crimes and because their probative value was outweighed by their prejudice — which are the hallmarks of an objection based on Rule 404(b). Nothing more was required to preserve Bailey’s argument for appellate review.

B. Admissibility of the collateral-act evidence

Having determined that Bailey preserved for review his objections to the admission of evidence that implicated him in the planning or perpetration of other crimes, we consider whether the admission resulted in reversible error. As we stated in Tariq-Madyun v. State, 59 So.3d 744 (Ala.Crim.App.2010):

“ ‘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). The rule applies to the admission of collateral-acts evidence. See Davis v. State, 740 So.2d 1115, 1130 (Ala.Crim.App.1998).”

59 So.3d at 755.

Evidence of prior or subsequent collateral bad acts and crimes is generally inadmissible.

“ ‘ “On the trial of a person for the alleged commission of a particular crime, evidence of his doing another act, which itself is a crime, is not admissible if the only probative function of such evidence is to show his bad character, inclination or propensity to commit the type of crime for which he. is being tried. This is a general exclusionary rule which prevents the introduction of prior criminal acts for the sole purpose of suggesting that the accused is more likely to be guilty of the crime in question.” ’ Pope v. State, 365 So.2d 369, 371 (Ala.Crim.App.1978), quoting C. Gamble, McElroy’s Alabama Evidence § 69.01. (3d ed.1977).”

Robinson v. State, 528 So.2d 343, 347 (Ala.Crim.App.1986), quoted in Ex parte Jackson, 33 So.3d 1279, 1284 (Ala.2009).

Evidence of collateral bad acts is “presumptively prejudicial because it could cause the jury to infer that, because the defendant has committed crimes in the past, it is more likely that he committed the particular crime with which he is charged — thus, it draws the jurors’ minds away from the main issue.” Ex parte Drinkard, 777 So.2d 295, 296 (Ala.2000). The Alabama Supreme Court recently stated:

“In Moore v. State, 49 So.3d 228 (Ala.Crim.App.2009), the Court of Criminal Appeals stated the following regarding Rule 404(b), Ala. R. Evid., which addresses the admissibility of evidence of collateral bad acts:
“Rule 404(b), 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 .... ”
“ ‘The Alabama Supreme Court has “held that the exclusionary rule prevents the State from using evidence of a defendant’s prior bad acts to prove the defendant’s bad character and, thereby, protects the defendant’s right to a fair trial.” Ex parte Drinkard, 111 So.2d 295, 302 (Ala.2000) (citing Ex parte Cofer, 440 So.2d 1121, 1123 (Ala.1983)). This court has explained that “[o]n the trial for the alleged commission of a particular crime, evidence of the accused’s having committed another act or crime is not admissible if the only probative function of such evidence is to prove bad character and the accused’s conformity therewith.” Lewis v. State, 889 So.2d 623, 661 (Ala.Crim.App.2003) (quoting C. Gamble, McElroy’s Alabama Evidence § 69.01(1) (5th ed.1996)).
“ ‘ “ ‘This exclusionary rule is simply an application of the character rule which forbids the State to prove the accused’s bad character by particular deeds. The basis for the rule lies in the belief that the prejudicial effect of prior crimes will far outweigh any probative value that might be gained from them. Most agree that such evidence of prior crimes has almost an irreversible impact upon the minds of the jurors.’ ”
“‘Ex parte Jackson, 33 So.3d 1279, 1284-85 (Ala.2009) (quoting Ex parte Arthur, 472 So.2d 665, 668 (Ala.1985), quoting in turn C. Gamble, McElroy’s supra, § 69.01(1)).’
49 So.3d at 232 (emphasis added).”

Ex parte Billups, [Ms. 1090554, Dec. 30, 2010] — So.3d -, -(Ala.2010).

“Thus, the purpose of the rule is to protect the defendant’s right to a fair trial by preventing convictions based on the jury’s belief that the defendant is a ‘bad’ person or one prone to commit criminal acts. See Ex parte Cofer, 440 So.2d 1121, 1123 (Ala.1983).”

Ex parte Arthur, 472 So.2d 665, 668 (Ala.1985), quoting C. Gamble, McElroy’s Alabama Evidence § 69.01(1) (3d ed.1977).

Although collateral-act evidence is generally inadmissible and presumptively prejudicial, the State is not prohibited in all cases from presenting it. Rule 404(b), Ala. R. Evid., provides, in pertinent part:

“Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show action in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident....”

Even though evidence of a collateral bad act fits into one or more of the exceptions to the general rule of exclusion so the act may be admissible, that alone does not render it admissible at trial. For collateral-act evidence to be admissible for one of the “other purposes” in Rule 404(b), there must be a real and open issue as to that other purpose. E.g., Draper v. State, 886 So.2d 105, 117 (Ala.Crim.App.2002). This Court has stated 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, 1374 (Ala.Crim.App.1985), quoted in Draper v. State, 886 So.2d 105, 120 (Ala.Crim.App.2002). This Court further explained:

“ ‘ “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.’” Averette v. State, 469 So.2d 1371, 1374 (Ala.Crim.App.1985), quoting United States v. Turquitt, [557 F.2d 464] at 468-69 [(5th Cir.1977) ].”

Robinson v. State, 528 So.2d 343, 347 (Ala.Crim.App.1986).

Bailey argues, as he did at trial, that evidence of the attempted theft of the four-wheeler, the theft of the tractor, and the recording and transcript of the conversation with Reeves should not have been admitted, that their admission resulted in substantial prejudice, and that the outcome of the trial was affected by the improperly admitted evidence. We agree, and we hold that the trial court erred when it permitted extensive, detailed testimony about Bailey’s collateral acts.

The State’s primary argument is that Bailey failed to preserve the arguments for review, an argument we have rejected for the reasons discussed above. Its only additional substantive argument is that the collateral-act evidence was properly admitted because, it says, that evidence explained the reasons for the investigators’ actions and explained how Bailey was apprehended. The State relies on cases holding that evidence of an officer’s conversations and actions related to the apprehension of the defendant does not constitute inadmissible hearsay. None of the cases stand for the proposition that detailed testimony about collateral crimes committed during a defendant’s arrest months after the crime for which the defendant was being tried — especially when one of the collateral crimes was set up by the investigators and their cooperating witness and when the discussion and purported planning of a future crime was also initiated by the cooperating witness — is admissible.

During the pretrial hearing on the motion in limine, the trial court stated that evidence about the attempted theft of the four-wheeler and the theft of the tractor “appears to be [Rule] 404(b) type evidence” and asked the prosecutor for a response to the motion. The prosecutor argued:

“Judge, it’s interwoven with the evidence that we intend to offer and it’s more so in this case because we intend to offer the undercover tape or an undercover tape that was taken during the alleged theft of the four-wheeler or the tractor, however you want to term it during that time. And it also explains how the defendant came to be in custody. And it’s going to be an integral part of the evidence that we offer and incapable really of separation from the other evidence.”

(R. 275.)

The trial court ordered that the State make no reference to a pending charge related to those collateral acts but otherwise denied the motion in limine. When Agent Burke began to testify about the investigators working with Bobby Joe Reeves and parking a four-wheeler that belonged to the sheriffs department near Reeves’s house as an enticement or “bait” to lure the Baileys to come to Lawrence County, Bailey objected:

“This goes to the motion in limine regarding other crimes, wrongs or acts. The district attorney is attempting to elicit testimony that the defendant was involved in or planned the theft of a four-wheeler which is going to be immediately followed by testimony regarding the theft of a tractor. And those incidents occurred in November of 2004. They are wholly and completely unrelated to the burglary of Melvin Key’s home or to the murder of Melvin Key. They are evidence of other crimes, wrongs or acts and prohibited under Rule 404 and we would object.”

(R. 547-48.)

The prosecutor again argued that the evidence he intended to present was “so interwoven with this attempted theft of the four-wheeler or set up of the theft of the four-wheeler — actually the four-wheeler was never stolen, and the theft of a tractor,” that it could not be separated. (R. 548.) Bailey then argued, in relevant part:

“Clearly this is eleven months later, wholly and completely unrelated. To allow them to elicit testimony of the defendant participating in other completely unrelated thefts that they set up, that they sent their own informant down there to bring him up there to do is extremely prejudicial and denies the defendant’s right to a fair trial.”

(R. 549.)

Over Bailey’s objections, the trial court permitted the State to elicit extensive detail — through its lead witness — about the Baileys’ attempt to steal the four-wheeler, then “[changing] their mind about stealing the four-wheeler,” and driving in Bailey’s car to a farm-supply business, where Bailey “hot wired the tractor.” (R. 551-52.) Agent Burke then testified that, even though investigators had had no intent to arrest the Baileys that night, they arrested them because, he stated: “Once they stole the man’s tractor, we had to get the tractor back.” (R. 552.) Chief McWhorter later testified about the details of these collateral crimes and about Bailey’s arrest for the theft of the tractor. McWhorter stated that he and the other investigators would not have arrested Bailey for murder at that time, “However, when it was a citizen’s property being taken, I couldn’t let that just leave the county.” (R. 1145.)

Bailey correctly argued at trial, and he continues to argue on appeal, that the testimony about the four-wheeler and the tractor had no relevance to the murder of Melvin Key, a murder that occurred 11 months earlier. The detailed testimony about these crimes contributed no evidence proving that Bailey was involved in Key’s murder. Rather, it established, at most, that Bailey could be lured by Bobby Joe Reeves to participate in thefts of unattended vehicles. The testimony about the collateral acts was inadmissible, it did not fit within one of the exceptions of Rule 404(b), Ala. R. Evid., to the general exclusionary rule, and the trial court erred when it permitted the State to elicit testimony about the crimes.

The State asserts that the testimony about the thefts was properly admitted because, it says, it was interwoven with its other evidence and explained the reasons for the investigative actions and for Bailey’s arrest. We disagree. Even if the State needed to present testimony that it had arrested Bailey in Lawrence County on an unrelated crime, certainly the extensive details of the attempted theft of the four-wheeler “bait” and Bailey’s “hot wiring” of the tractor — evidence that was presented by two law-enforcement witnesses — was probative of nothing other than Bailey’s involvement in criminal acts unrelated to the murder for which he was on trial. Rather than simply explaining how Bailey came to be in custody, the testimony from the two witnesses appears to have been intended to suggest to the jury that Bailey was of bad character and that citizens needed to be protected from him. This use of collateral-act evidence is precisely the use forbidden by the exclusionary rule, and the trial court erred when it allowed it into evidence.

The same rationale applies to the admission of the tape-recorded conversations of Bailey and others at Reeves’s residence before the tractor theft took place. Bailey objected to the evidence because, he said, it contained discussions about the tractor and the four-wheeler, and it also included discussions about a possible future robbery or burglary, and that the evidence was irrelevant and more prejudicial than probative. (R. 1150-51.) The State argued that the tape recording was also admissible because it included an admission against interest.

A small portion of the recording was arguably inculpatory and relevant because it referred to a shootout and a charge against “Steve,” but it also included exculpatory statements from Bailey and his brother indicating they did not know about a shootout:

“[BAILEY]: MAKE SURE THAT FOUR WHEELER IS SITTING OUT THERE WHERE WE CAN’T GET IT. CAN’T GET IT, FUCK IT AIN’T NO SENSE IN FUCKING WITH IT. HATE TO GO UP THERE AND HAVE A SHOOTOUT OVER A FOUR WHEELER.
“[REEVES]: WE DON’T NEED TO BE IN ANY MORE GOD DAMN SHOOTOUTS, LONNIE BAILEY. LAST GOD DAMN SHOOTOUT LEAD TO A DRAMA. THEY STILL TRYING TO CHARGE THAT MOTHER FUCKER WITH THAT.
“[BAILEY]: HUH?
“[REEVES]: THEY STILL TRYING TO CHARGE STEVE WITH THAT.
“[BAILEY]: GOOD.
“[REEVES]: STEVE.
“[WAYNE]: I DON’T KNOW WHAT.
“[BAILEY]: I DON’T KNOW WHAT YOU ARE TALKING ABOUT.”

(C. 339.)(Capitalization in original.)

Although the quoted portion of the recorded conversation was perhaps admissible, the remainder of the recording and the transcript should have been redacted as being irrelevant and prejudicial. The recording and the transcript consisted of profanity-laced, disjointed conversations between Reeves, Tiffany Terry, the couple’s children, and the Baileys; the transcript includes comments about a vast array of topics, including eating nuts, threats to spank crying children, the weather, pain pills, the tractor and four-wheeler, and about “hitting” a wealthy businessman. At most, Reeves’s brief statements about a prior shootout might have been intended to refer to Key’s murder, but Bailey’s responses did not implicate him in Key’s murder. The remainder of the tape-recorded conversations and the transcript were entirely irrelevant to the murder and were extremely prejudicial in that they included Reeves’s initiation of what the State later claimed to be a discussion of a future robbery or burglary of a businessman, and Bailey’s statements that if the man had several businesses, he had to have money somewhere and he probably had a vault in his house. (C. 337-38.)

Admission of the rambling, often profane conversation among children and four adults provided additional evidence that appears to have been intended primarily to demonstrate to the jury that Bailey was of bad character and was willing to engage in criminal pursuits. As was the case with the evidence about the four-wheeler and the tractor, this evidence was not admissible, and it did not come within any exception to the exclusionary rule. The trial court erred when it allowed evidence of the collateral acts.

Even if we had determined that evidence about the four-wheeler, the tractor, and the conversations recorded at Reeves’ residence fit within an exception to the exclusionary rule, we would nonetheless hold that the collateral-act evidence was inadmissible because it was not reasonably necessary to the State’s case and because its probative value was far outweighed by its prejudicial value. See, e.g., Ex parte Jackson, 33 So.3d 1279, 1286 (Ala.2009) (holding that to admit evidence of prior bad acts under Rule 404(b), Ala. R. Evid., the State must demonstrate “that the evidence was reasonably necessary to its case”). None of the collateral-act evidence established any element of the crimes for which Bailey was being tried, and none of the evidence was necessary to the State’s case. Even if, as the prosecutor argued, some testimony was necessary to show how Bailey came to be in custody, the prosecutor could have asked limited fact-based questions to elicit that information.

The State did not need to present detailed testimony about any other crimes, particularly when the State and its cooperating witness, who was deceased at the time of trial, admittedly planted the four-wheeler to lure Bailey into another county and the cooperating witness himself initiated discussion of a possible home-invasion robbery or burglary. Rule 403, Ala. R. Evid., states: “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.” A balancing of the relevant factors leads only to the conclusion that the collateral-act evidence was inadmissible. The unfair prejudice here is clear. The State presented not only the fact of the theft and the discussion about a businessman having money, perhaps in a vault, but it presented extensive details about the events surrounding the attempted theft of the four-wheeler and the theft of the tractor. The tape-recorded conversation included a vast amount of confusing topics of discussion in addition to the impermissible discussion of a possible future crime and confused the issues relevant to the trial for Key’s murder and likely caused the jury’s attention to be diverted from its duty to make a decision about Bailey’s guilt based on evidence that was actually relevant to that murder. The prejudice to Bailey that resulted from the collateral-act evidence was substantial.

Furthermore, the prosecutor’s likely intention for presenting the collateral-act evidence — to convince the jury that Bailey was a man of bad character who had committed other crimes and who had planned a robbery or burglary at another man’s home, thus making it more likely that he had also committed the murder of Melvin Keys — was demonstrated by the prosecutor’s closing argument. He argued not only that Bailey had been arrested for stealing the tractor, but also that the surveillance tape provided evidence of Bailey’s intent to commit another, similar crime: “On that transcript in that conversation, they’re planning another home invasion robbery just like they did with Melvin Key. It’s clear.” (R. 1266.)(Emphasis added.) After defense counsel objected to the argument and the trial court overruled the objection, the prosecutor continued with that assertion that Bailey had a plan to commit another crime:

“On that tape, they are talking about another home invasion robbery. Bobby Reeves brought it up and the defendant is right there along with him talking about it. I don’t know how many times he says on that tape he’s got a vault, he’s got a vault, minus all the cuss words, he’s got a vault, talking about him having security, he got a son with a gun. They are planning another home invasion robbery. That’s what he does.”

(R. 1267-68.)(Emphasis added.)

In his rebuttal argument to the jury the prosecutor again argued that the surveillance recording demonstrated that Bailey was planning another, similar crime:

“What did the evidence show you in this case ? If you look at this transcript and it tells a lot, okay. If you look at this transcript, you can see them setting up another robbery. Bobby Joe Reeves starts talking about it. And I’m not going go through it, but it starts here and he’s talking about three hundred and fifty dollars and four hundred thousand dollars, but look through the transcript. Lonnie Bailey is just right there with him. He’s talking about the vault, he’s talking about it being in the house. He’s talking about robbery. That’s what he does.”

(R. 1313-14.)(Emphasis added.)

The State’s use of the inadmissible evidence, particularly the entire discussion about a possible home-invasion robbery — a discussion initiated and directed by Reeves, the State’s cooperating witness— was especially prejudicial because its only probative function was to show Bailey to be of bad character, with a propensity to commit the type of crime for which he was being tried. This was precisely the type of evidence forbidden by the general exclusionary rule, which prevents the introduction of collateral bad acts for the sole purpose of suggesting that the defendant is more likely to be guilty of the crime in question. The trial court far exceeded its discretion when it allowed the State to introduce the collateral-act evidence.

Finally, we hold that the trial court’s errors cannot be considered harmless error under the circumstances of this case. Rule 45, Ala. RApp. P., provides, in relevant part, that no judgment may be reversed on the ground of the improper admission of evidence unless, after an examination of the entire cause, it appears to the reviewing court that the error has probably injuriously affected substantial rights of the parties. See, e.g., Ex parte Greathouse, 624 So.2d 208, 210 (Ala.1993) (holding that the proper harmless-error inquiry asks whether, absent the improperly introduced evidence, it is clear beyond reasonable doubt that the jury would have returned a guilty verdict); Moore v. State, 49 So.3d 228 (Ala.Crim.App.2009) (“[Tjhis court cannot say that the State’s evidence was so overwhelming as to render the improper admission of Moore’s prior conviction harmless beyond a reasonable doubt.”).

Not only did the trial court erroneously allow substantial, detailed testimony about collateral bad acts and not only did the prosecutor rely on that testimony to encourage the jury to return guilty verdicts, but the actual evidence of Bailey’s guilt was far from overwhelming or ironclad. There was no physical evidence to connect Bailey to the crime scene. The murder weapon recovered months after the murder was connected to Bobby Joe Reeves, who had the gun before and after the murder and who sold the weapon after the crime. Bailey did not know Key. Reeves and Terry had known Key, knew that he carried a substantial amount of money, and had been to his house. The investigators initially suspected that Key’s son, Steven, had been involved in the murder based, in part, on his lack of emotion at the crime scene, even though he had allegedly been present in the house when his father was murdered and he discovered his father after the shooting. Steven retained counsel the day of the murder and submitted to a lie-detector test with a private examiner he later hired. It appears that the murderer was familiar with Key’s house, because he passed by Steven’s closed bedroom door and went directly to Key’s bedroom and killed him there.

The crime scene was perplexing because, although Key was right-handed, a handgun was found next to his left hand while the flashlight was found next to his right hand. Furthermore, the medical examiner testified that Key could not have been holding anything in his right hand because the wounds to his fingers indicated that his fingers had been outstretched when the shotgun pellets entered them. Key’s hands, the handgun, and the flashlight were under a sheet when the authorities found Key’s body. Steven said that he did not cover his father’s hands with the sheet after he was shot.

The murder investigation yielded no leads for months, until Reeves and Terry were incarcerated on drug charges and then began offering information to investigators implicating Bailey and exculpating themselves. The only other witness who testified that Bailey was involved in the murder was Earnest Parker, Jr., a longtime friend of Reeves’s, and he, too, only provided information nearly two years after the murder and he did so only after he was incarcerated and seeking a favorable treatment from law-enforcement authorities in exchange for information. A defense witness testified that Parker’s father had been good friends with Key and that Parker told her that the statement he made to the police had been based on information Reeves had given him. The State’s case against Bailey was weak, at best.

Furthermore, the State attempted to bolster its weak case against Bailey by presenting detailed evidence of his involvement in criminal acts he was admittedly lured into by the investigators and their cooperating witness, Reeves, and by his purported planning of another crime against a wealthy businessman. Bailey was unfairly prejudiced by the State’s presentation of that evidence and additionally by the State’s argument that Bailey was planning to commit another home-invasion crime because “that’s who he is” and “that’s what he does.” In Kuenzel v. State, 577 So.2d 474 (Ala.Crim.App.1990), aff'd, 577 So.2d 531 (Ala.1991), the appellant argued that fingerprint evidence and swabs from the victim’s body were irrelevant and should not have been admitted, and that the evidence prevented him from receiving a fair trial. This Court found no reversible error in the trial court’s admission of that evidence:

“We fail to see the relevance of this evidence in this particular case. However, our review of the entire record shows that the prosecution did not take unfair advantage of either this evidence or the fingerprint evidence in an attempt to confuse the jury or in an effort to imply the inference of facts which did not exist. We do not find that the State attempted to use this evidence to bolster a weak case against the defendant. The admission of merely immaterial and not prejudicial evidence is not reversible error.”

577 So.2d at 511-12.

We are unable to reach the same result here that we reached in Kuenzel. The errors in this case resulted in the jury’s considering a substantial amount of improper collateral evidence that diverted the jurors’ minds from the main issue of Bailey’s criminal responsibility for Key’s death, and it had an irreversible impact on the jury’s decision-making process. Through the admission of the improper evidence and the prosecutor’s argument about the evidence the prosecutor implicitly tried Bailey for the attempted theft of the four-wheeler it admittedly placed with the intent to lure Bailey, for the theft of the tractor, and for the purported plan to commit another home-invasion robbery or burglary involving a victim similar to Key. The prejudice that resulted was substantial and the admission of the evidence cannot be considered harmless error. Bailey was denied his right to a fair determination of his guilt. We therefore reverse the convictions and remand the cause for further proceedings.

REVERSED AND REMANDED.

WINDOM and KELLUM, JJ., concur.

      . In some parts in the record dais person is referred to as "Tiffany Terry Parsons.”

      . Although the State does not argue that the collateral-act testimony fit within the res ges-tae exception to the general rule of exclusion, we note that, even if the State had made that argument, the argument would likewise fail to persuade because that exception applies only when the collateral crimes or acts are contemporaneous with the charged crime and are part of the same transaction or chain of events. E.g., Dosier v. State, 72 So.3d 50 (Ala.Crim.App.2010). The thefts and the discussion of a possible robbery or burglary occurred nearly a year after the murder and were not part of one continuous chain of events related to the murder. Therefore, even if the State had argued that the collateral crimes were admissible as a res gestae exception, the State would have been incorrect.


source: Caselaw Access Project

author: LABARGA, J. PARIENTE, J., CANADY, C.J.,

license: Public Domain

text:
    Ricardo DAVILA, Petitioner, v. STATE of Florida, Respondent.
    No. SC09-2177.
    Supreme Court of Florida.
    Oct. 6, 2011.
    Carlos J. Martinez, Public Defender, and Marti Rothenberg, Assistant Public Defender, Eleventh Judicial Circuit, Miami, FL, for Petitioner.
    Pamela Jo Bondi, Attorney General, Tallahassee, FL, Richard L. Polin, Bureau Chief, and Ansley B. Peacock, Assistant Attorneys General, Miami, FL, for Respondent.
   LABARGA, J.

This case is before the Court for review of the decision of the Third District Court of Appeal in Davila v. State, 26 So.3d 5 (Fla. 3d DCA 2009). The district court certified that its decision is in direct conflict with the decision of the Second District Court of Appeal in Muniz v. State, 764 So.2d 729 (Fla. 2d DCA 2000). We have jurisdiction. See art. V, § 3(b)(4), Fla. Const.

The case under review concerns Petitioner Ricardo Davila (“Davila”), who was convicted of several crimes, including the kidnapping of his eleven-year-old son, which occurred between February 2000 and July 2000. The conflict issue before us centers on whether a parent can lawfully be convicted of kidnapping his own child under section 787.01, Florida Statutes (2000). For the reasons expressed below, we approve the decision of the Third District in Davila to the extent that it held that a parent can be criminally liable for kidnapping his own child pursuant to section 787.01 under certain circumstances, but disapprove the reasoning and analysis of the district court. We also disapprove the decision of the Second District in Muniz. We begin our discussion with an overview of the facts and procedural history.

FACTS AND PROCEDURAL HISTORY

Davila was charged by amended information with thirty-six counts of aggravated child abuse, three counts of false imprisonment of a child under the age of thirteen, one count of child neglect, one count of child abuse, one count of attempted felony murder, and three counts of kidnapping a child under the age of thirteen. With specific regard to the kidnapping charges, the State alleged that on or between February 5, 2000, and July 7, 2000, Ricardo Davila did “forcibly, secretly, or by threat, confine, abduct, or imprison another person under thirteen (13) years of age, to wit: R.D. (A MINOR), against that person’s will, with the intent to inflict bodily harm upon or to terrorize the victim or any other person, and in the course of committing said offense, the defendant committed aggravated child abuse, as defined in s. 827.03, in violation of s. 787.01(3)(a) and s. 777.011 Florida Statutes.”

Davila and his wife, Josefa Davila, were both tried before a jury for various criminal offenses against their son, R.D. The evidence presented at trial demonstrated that R.D. arrived from Nicaragua on February 5, 2000, and thereafter resided with his parents and two siblings in Sweetwa-ter, Florida. Shortly after his arrival from Nicaragua, R.D. was struck by his parents several times for misbehaving and lying. Additionally, R.D. testified that his parents placed him in the storage room of their home for approximately two weeks and that, while he was free to roam about the room, he was not allowed out of the room during the two-week period.

R.D. also testified that he had been placed in one of the bathrooms of his parents’ home on two separate occasions— once in May for a period of three weeks and once in July for about one week. One of those occasions occurred after his mother complained that R.D. had not washed the dishes well and instructed Davila to lock R.D. in the bathroom, which he did. Davila then blindfolded R.D. with handkerchiefs, tied his hands and feet with rope, placed a bucket over his head and a handkerchief in his mouth, and locked the bathroom door.

According to R.D., his father also hit him on his back, hands, and legs with a broomstick after discovering that R.D. managed to free himself from the rope, and kicked him once while R.D. was in the bathroom because he had removed the handkerchiefs from around his eyes. As a result of his father’s kick, R.D. hit a bathroom wall and broke a tile. R.D. testified that he was required to lie down in the bathtub during his time in the bathroom, and if he did not do so, his father would hit him. R.D. eventually managed to escape from the bathroom and flee to a neighbor’s home sometime in July 2000.

Davila’s testimony conflicted to some extent with R.D.’s testimony as to the length of time and condition in which R.D. was kept in the bathroom. Davila testified that the first time he put R.D. in the bathroom he only placed a bucket over his head and left R.D. in the bathroom for one day, releasing him at night. He further testified that he had placed his son in the bathroom one other time for about four or five hours because R.D. had lied and hit both of his parents. Davila denied that his son had been tied up for more than twenty-four hours, and then explained that he had not really tied up his son when R.D. was placed in the bathroom, but rather that he had “rolled” R.D.’s hands a certain way.

The jury convicted Davila of twenty-nine counts of aggravated child abuse, one count of child neglect, one count of child abuse, and three counts of kidnapping. Subsequently, Davila was sentenced to thirty years in prison for the convictions of aggravated child abuse, five years in prison for the convictions of child abuse and child neglect, and life imprisonment for the convictions of kidnapping. The trial court ordered 198 days’ credit for time served, and further ordered that the sentences run concurrently. Davila appealed his convictions to the Third District, which affirmed in Davila v. State, 829 So.2d 995, 996 (Fla. 3d DCA 2002).

Davila then filed a motion for postcon-viction relief pursuant to Florida Rule of Criminal Procedure 3.850. The trial court denied all of the claims and an appeal to the Third District followed. See Davila, 26 So.3d at 6-8. On appeal, Davila argued that the three counts of kidnapping should be vacated because a parent cannot be convicted of kidnapping his own child as a matter of law. Id. at 7. The Third District noted that Davila was the father of the victim and that there was no court order which deprived him of custody rights. Id. The district court observed that, as a general rule, a parent cannot be convicted of kidnapping his or her own child. Id. at 7 (citing Johnson v. State, 637 So.2d 3, 4 (Fla. 3d DCA 1994)). The court then noted: “We have recognized an exception, however, to the general rule where the parent ‘does not simply exercise his rights to the child, but takes [the child] for an ulterior and unlawful purpose which is specifically forbidden by the kidnapping statute itself.’” Id. (quoting Lafleur v. State, 661 So.2d 346, 349 (Fla. 3d DCA 1995)). The Third District thus denied Davila relief on his claim that a parent cannot be convicted of kidnapping his own child. The district court then certified conflict with the Second District’s decision in Muniz, noting that if the case were before the Second District, Davila would be entitled to relief on the kidnapping issue. Davila, 26 So.3d at 7. We turn now to the Second District’s decision in the conflict case.

In Muniz, the Second District reversed the defendant’s conviction for kidnapping, holding that absent a court order depriving him of authority over his child, Muniz could not be convicted of kidnapping his own child. See Muniz, 764 So.2d at 729 (citing Johnson, 637 So.2d at 4). Muniz had argued with and battered the mother of his nonmarital five-week-old son, after which the mother fled the home, leaving the baby behind. Id. at 729-30. The police were called and when they arrived, they escorted the mother back to the home and knocked on the door. Id. at 730. Although Muniz did not respond to the officers’ knock on the door, the child’s mother opened the door and the officers went inside. The officers confronted Muniz as he held his child in his arms and demanded that Muniz hand over the baby, but he refused. Id. When an officer approached him, Muniz picked up a razor and threatened both the baby and himself with the razor. After spending hours trying to persuade Muniz to release the child to them, the police seized Muniz and safely removed the baby. Id.

Muniz subsequently was charged with domestic violence battery and armed kidnapping, and a jury trial was held. Id. Muniz moved for a judgment of acquittal at the conclusion of trial, asserting that he could not be convicted of kidnapping his own child. The trial court denied the motion, reasoning that the mother was the sole natural guardian of the nonmarital child pursuant to section 744.301(1), Florida Statutes (1997). Id. (citing § 744.301(1), Fla. Stat. (1997) (“The mother of a child born out of wedlock is the natural guardian of the child and is entitled to primary residential care and custody of the child unless a court of competent jurisdiction enters an order stating otherwise.”)). On appeal, the Second District concluded that even if the mother was the child’s guardian, Muniz was the legal father of the child and, thus, a parent of the alleged victim. Id. at 729-30. The district court held that “[t]he kidnaping statute does not criminalize the confinement of a child under the age of thirteen by ‘a parent or a legal guardian.’ ” Id. at 729 (quoting § 787.01(l)(b), Fla. Stat. (1997)). The court ruled that while the defendant’s conduct was inappropriate, “section 787.01(l)(b) prevents prosecution of Mr. Muniz for the first-degree felony offense of kidnaping his own child.” Id. at 731.

ANALYSIS

The conflict issue in this case centers on whether section 787.01, Florida Statutes (2000), provides a basis to convict a parent of kidnapping his or her own child as the term “kidnapping” is defined in the statute. This question turns in large part on the legal effect of subsection (l)(b) of that statute. “The interpretation of a statute is a purely legal matter and therefore subject to the de novo standard of review.” Kasischke v. State, 991 So.2d 803, 807 (Fla.2008) (quoting Kephart v. Hadi, 932 So.2d 1086, 1089 (Fla.2006)). “A court’s purpose in construing a statute is to give effect to legislative intent, which is the polestar that guides the court in statutory construction.” Larimore v. State, 2 So.3d 101, 106 (Fla.2008) (citing Bautista v. State, 863 So.2d 1180, 1185 (Fla.2003)). We look primarily to the actual language used in the statute to discern legislative intent. See id. “[W]hen the language of the statute is clear and unambiguous and conveys a clear and definite meaning ... the statute must be given its plain and obvious meaning.” Velez v. Miami-Dade Cnty. Police Dep’t, 934 So.2d 1162, 1164 (Fla.2006) (quoting Fla. Dep’t of Revenue v. New Sea Escape Cruises, Ltd., 894 So.2d 954, 960 (Fla.2005)). “Further, we are ‘without power to construe an unambiguous statute in a way which would extend, modify, or limit, its express terms or its reasonable and obvious implications.’ ” Id. at 1164-65 (quoting McLaughlin v. State, 721 So.2d 1170, 1172 (Fla.1998)). We thus begin our analysis with the language of section 787.01, Florida Statutes (2000).

The criminal offense of kidnapping, which is codified in section 787.01, Florida Statutes (2000), is defined in relevant part as follows:

(l)(a) The term “kidnapping” means forcibly, secretly, or by threat confining, abducting, or imprisoning another person against her or his will and without lawful authority, with intent to:
1. Hold for ransom or reward or as a shield or hostage.
2. Commit or facilitate commission of any felony.
3. Inflict bodily harm upon or to terrorize the victim or another person.
4. Interfere with the performance of any governmental or political function.

§ 787.01(l)(a), Fla. Stat. (2000). Subsection (l)(b) further provides: “Confinement of a child under the age of 13 is against her or his will within the meaning of this subsection if such confinement is without the consent of her or his parent or legal guardian.” § 787.01(l)(b), Fla. Stat. In this case, the jury was instructed in relevant part that to convict Davila of kidnapping a child under the age of thirteen, the State had to prove that the defendant “forcibly or by threat confined or imprisoned R.D. against his will ... with intent to inflict bodily harm upon or terrorize R.D.” Davila contends that under section 787.01(l)(b), a parent of a child under the age of thirteen cannot be criminally liable for kidnapping that child where there was no court order depriving the parent of custody and where the alleged confinement of the child was with that parent’s consent. We disagree.

The plain language of section 787.01(l)(a) requires the State to prove an overt act on the part of the defendant; namely, a forceful, secretive, or threatening act that confines, abducts, or imprisons another person against his will. Further, to prove the offense of kidnapping, it must be established that the defendant performed the overt act with one of the four specific intents delineated under subsection (l)(a) of the kidnapping statute. The plain language of subsection (l)(b) of the statute sets forth a method of proof which allows the State to establish that the overt act on the part of the defendant was against a person’s will when that person is a child under the age of thirteen.

The unambiguous language of section 787.01, Florida Statutes (2000), does not exempt a parent from criminal liability for kidnapping his or her own child. Thus, by its own terms, section 787.01 permits Davi-la to be legally convicted of kidnapping R.D. It is our view that if the Legislature intended to exempt a parent from criminal liability for kidnapping his or her own child, it would have expressly stated so. We trust that if the Legislature did not intend the result mandated by the plain and unambiguous language of section 787.01, the Legislature itself will amend the statute. Until such time, we hold that a parent is not exempt from criminal liability for kidnapping his or her own child under section 787.01, Florida Statutes (2000).

Having resolved the conflict issue presented before us, we decline to address the parties’ remaining assertions.

CONCLUSION

Based on the foregoing, we conclude that the plain language of section 787.01, Florida Statutes (2000), does not preclude a parent from being held criminally liable for kidnapping his or her own child. We therefore approve the result reached by the Third District of Appeal in Davila v. State, 26 So.3d 5 (Fla. 3d DCA 2009), and disapprove the decision of the Second District Court of Appeal in Muniz v. State, 764 So.2d 729 (Fla. 2d DCA 2000).

It is so ordered.

LEWIS, QUINCE, POLSTON, and PERRY, JJ., concur.

PARIENTE, J., concurs with an opinion.

CANADY, C.J., dissents with an opinion.

PARIENTE, J.,

concurring.

The evidence presented at trial in this case detailed horrific abuse inflicted by the defendant on the victim, who was under the age of thirteen, and instances of the defendant locking the victim in a storage room and bathroom for extended periods of time. The defendant was convicted of child neglect, child abuse, kidnapping, and numerous counts of aggravated child abuse; he was sentenced to thirty years in prison for the aggravated child abuse convictions, five years for the child abuse and neglect convictions, and life imprisonment for the kidnapping convictions. The issue in this case concerns whether the defendant can be convicted of kidnapping. The defendant contends that he cannot because the victim is his own son.

I agree with the majority’s holding that under the kidnapping statute, a parent or legal guardian can kidnap his or her own child. Subsection (l)(b) of the statute operates as a method of proof that allows the State to prove that the act of kidnapping is against the child’s will when the child is under the age of thirteen and is confined without the consent of his or her legal guardian. However, the subsection was not intended to operate to preclude criminal liability for parents or legal guardians who meet the elements of the statute.

Under the dissent’s construction of the statute, the parent or legal guardian could be convicted of kidnapping a child who is thirteen years of age or older, but not a child under the age of thirteen. See dissenting op. at 199 (“[I]t is reasonable to understand the statute as establishing the absence of parental consent as a necessary condition for a determination that the confinement is ‘against the will’ of the victim when the victim is a child under thirteen.” (emphasis added)). This leads to the absurd result that children who are thirteen and older are afforded more protection under the kidnapping statute than children who are under thirteen. This flies in the face of logic — younger children are more vulnerable and in need of greater protection.

The majority’s reading of the statute is supported by an application of sound statutory construction principles. A statute “must be construed in its entirety and as a whole.” Koile v. State, 934 So.2d 1226, 1233 (Fla.2006) (quoting St. Mary’s Hosp., Inc. v. Phillipe, 769 So.2d 961, 967 (Fla.2000)). Subsection (l)(b) cannot be read in isolation, but “must [be] read ... within the context of the entire section in order to ascertain legislative intent for the provision.” Fla. Dep’t of Envtl. Prot. v. ContractPoint Fla. Parks, LLC, 986 So.2d 1260, 1265 (Fla.2008). Further, “[s]tat-utes, as a rule, ‘will not be interpreted so as to yield an absurd result.’ ” State v. Iacovone, 660 So.2d 1371, 1373 (Fla.1995) (quoting Williams v. State, 492 So.2d 1051, 1054 (Fla.1986)). When these principles of statutory construction are applied, it is clear that the only reasonable interpretation of subsection (l)(b) is that the provision creates a method of proof intended to operate when the offender is not the parent or legal guardian and the child is under the age of thirteen. The dissent relies on the rule of lenity; however, we have “recognize[d] that the rule of lenity is a canon of last resort.” Kasisehke v. State, 991 So.2d 803, 814 (Fla.2008). It certainly should not be applied to produce an absurd or unreasonable result. See Clines v. State, 912 So.2d 550, 560 (Fla.2005) (“[T]he rule [of lenity] ‘is applicable to sentencing provisions’ if they ‘create ambiguity or generate differing reasonable constructions.’ ” (emphasis added)).

The Legislature has defined kidnapping as “forcibly, secretly, or by threat confining, abducting, or imprisoning another person against her or his will and without lawful authority” with one of four specific intents. § 787.01(l)(a), Fla. Stat. (2000). Subsection (l)(b) of the statute provides: “Confinement of a child under the age of 13 is against her or his will within the meaning of this subsection if such confinement is without the consent of her or his parent or legal guardian.” § 787.01(l)(b), Fla. Stat. Thus, when the defendant is not the child’s parent or legal guardian, the statute has provided that the element that the confinement is against the victim’s will is proven when (a) the victim is under the age of thirteen, and (b) the confinement is without the consent of the victim’s parent or legal guardian. However, nothing within the statute implies that subsection (l)(b) is the only method by which to prove that the kidnapping of a child under the age of thirteen is against his or her will. Nor does the statute provide that the absence of parental consent is an element of the crime when the child is under thirteen.

The dissent reads the statute as if it stated, “Confinement of a child under the age of thirteen is against her or his will within the meaning of this subsection only if such confinement is without the consent of her or his legal guardian.” However, when read in context of the statute as a whole, it becomes clear that subsection (l)(b) is just one method by which the State can prove that the confinement was against the victim’s will for a child under the age of thirteen; it is not the exclusive method. Nothing within the statute establishes the absence of parental consent as an element of the crime or a necessary predicate to prove the crime of kidnapping.

CANADY, C.J.,

dissenting.

In interpreting statutory provisions defining criminal acts, we are bound by a rule — codified in section 775.021(1), Florida Statutes (2000) — requiring that such statutes “shall be strictly construed” and that “when the language is susceptible of differing constructions, it shall be construed most favorably to the accused.” This “rule of lenity” only comes into play when the statutory provisions at issue “create an ambiguity or generate differing reasonable constructions.” Nettles v. State, 850 So.2d 487, 494 (Fla.2003).

The question presented by this case is whether a parent — with full custodial rights — of a child under age thirteen can properly be convicted of kidnapping that child. The appellant argues that such a conviction is precluded — at least under circumstances like those presented here — by the requirement that an act of kidnapping be “against the will” of the victim. Appellant bases his argument on the provision of the kidnapping statute which states: “Confinement of a child under the age of 13 is against her or his will within the meaning of this subsection if such confinement is without the consent of her or his parent or legal guardian.” § 787.01(l)(b), Fla. Stat. (2000) (emphasis added).

I conclude that the statutory interpretation urged by the appellant cannot be rejected as an unreasonable reading of the text of the kidnapping statute. Given the is/if structure of subsection (l)(b), it is reasonable to understand the statute as establishing the absence of parental consent as a necessary condition for a determination that the confinement is “against the will” of the victim when the victim is a child under thirteen. By using the word “is” rather than language such as “may be,” the statute explicitly defines “against [the] will” of a child under the age of thirteen — for purposes of delineating the elements of kidnapping — as “without the consent of her or his parent or legal guardian.”

The majority’s alternative construction of section 787.01(l)(b) as setting forth a nonexclusive “method of proof,” majority op. at 196, is supported by neither the text of that subsection nor anything else in the text or structure of the kidnapping statute. The majority’s reading collides with the doctrine of inclusio unius est exclusio al-terius, which instructs that “when a law expressly describes the particular situation in which something should apply, an inference must be drawn that what is not included by specific reference was intended to be omitted or excluded.” Gay v. Singletary, 700 So.2d 1220, 1221 (Fla.1997). But even if it is assumed that the majority’s reading is reasonable, the rule of lenity requires the rejection of that reading in favor of the alternative reasonable reading urged by the appellant.

I reject the majority’s suggestion that we should interpret the text of the kidnapping statute based on the assumption “that if the Legislature intended to exempt a parent from criminal liability for kidnapping his own child, it would have expressly stated so.” Majority op. at 196. Such an assumption cannot be reconciled with the express rule of construction established by the Legislature in the rule of lenity. Nor can it be reconciled with general principles of statutory interpretation, including the inclusio unius canon. In applying the statutes adopted by the Legislature, we must pay careful attention to what the Legislature actually said and not substitute our own view of what we think the Legislature must have really meant to say or what it would have said if confronted with the egregious circumstances of the case at issue.

I also reject the view, which is articulated in the concurrence, that the absurdity doctrine should be applied here effectively to trump a reasonable reading of the text of the kidnapping statute and the statutory rule of lenity. Based on a policy view about appropriate punishment, the concurrence deploys the absurdity doctrine in the service of a “rule of severity.” The rationale for applying the absurdity doctrine here is singularly unpersuasive. I cannot see why it is absurd for the Legislature in effect to exempt custodial parents from criminal liability for kidnapping their own children who are under thirteen. It is by no means obvious that the kidnapping statute is aimed at protecting young children from their own custodial parents.

I therefore dissent. I would disapprove the Third District’s decision and order remand for a new sentencing hearing. I agree with the State’s argument that the sentencing court should not be precluded from imposing consecutive sentences for the remaining convictions.

      . The trial court entered a judgment of acquittal on the counts for false imprisonment of a child under the age of thirteen, and the jury was instructed that false imprisonment of a child under the age of thirteen constituted a lesser included offense of the kidnapping offenses.

      . In his postconviction appeal to the district court, Davila argued alternatively that it was improper to convict him of aggravated child abuse and then use the same acts of aggravated child abuse to enhance the kidnapping charge from a first-degree felony punishable by life imprisonment to a life felony. Davila, 26 So.3d at 7. The district court concluded that the postconviction record before it did not conclusively refute this claim, and consequently reversed this part of the trial court’s order and remanded for further proceedings. Id. Davila also raised on appeal a double jeopardy violation involving the counts for kidnapping and false imprisonment. The district court remanded this issue because the trial court had not addressed this claim. Id. at 7-8. Further, the district court remanded the case for an evidentiary hearing on the issue of whether trial counsel conceded Davi-la’s guilt on multiple counts at trial without the defendant’s consent. Id. at 8. Lastly, the Third District rejected Davila's contention that it was a double jeopardy violation to charge the defendant with multiple acts of aggravated child abuse occurring during a six-month period. Id. Davila does not raise any of these claims before this Court.

      . Our holding today does not suggest that a parent may never discipline his or her own child. However, under our holding, section 787.01 does not exempt a parent from criminal liability for committing a forceful, secretive, or threatening act that confines, abducts, or imprisons a child when such an overt act is committed with one of the four specific intents delineated under subsection (l)(a) of the kidnapping statute.