Ex parte State of Alabama.

REL:09/19/2014

Notice: This opinion is subject to formal revision before publication in the advance
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SUPREME COURT OF ALABAMA
SPECIAL TERM, 2014
____________________

1121099
____________________

Ex parte State of Alabama

PETITION FOR WRIT OF CERTIORARI
TO THE COURT OF CRIMINAL APPEALS

(In re: Kevin Andre Towles

v.

State of Alabama)

(Etowah Circuit Court, CC-07-480;
Court of Criminal Appeals, CR-09-0396)

BOLIN, Justice.
1121099

Kevin Andre Towles was convicted of capital murder for

killing his son, Geontae Glass, who was under the age of 14

when he was killed. See § 13A-5-40(a)(15), Ala. Code 1975.

By a vote of 11 to 1, the jury recommended that Towles be

sentenced to death. The trial court followed the jury's

recommendation and sentenced Towles to death. The Court of

Criminal Appeals reversed Towles's conviction and sentence in

a per curiam opinion. Towles v. State, [Ms. CR-09-0396, March

29, 2013] __ So. 3d __ (Ala. Crim. App. 2013). The State

petitioned this Court for a writ of certiorari, which we

granted.

Facts and Procedural History

The Court of Criminal Appeals set forth the following

statement of facts:

"On the morning of December 4, 2006, Shalinda
Glass arrived at the Conoco gas station on Baltimore
Avenue in Albertville. Ronnie Cook, who was at the
time at the gas station to complete a sales order,
took note of Glass because she drove her Nissan
Altima automobile from one side of the lot to the
other several times before she parked her vehicle in
front of a gas pump. Cook watched Glass and Shaliyah
Glass, Glass's seven-year-old daughter, get out of
the vehicle and enter the gas station.

"After they entered the Conoco gas station, Cook
saw a blue Ford pickup truck stop beside Glass's
Altima. Cook then saw a black male, who had the same

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general physical characteristics as Towles, get into
the Altima and then leave the Conoco gas station in
the Altima. Cook did not see the black male get out
of the pickup truck, but he stated that the black
male was close to the passenger door of the pickup
truck when Cook first noticed him. Cook testified
that the pickup truck followed the Altima away from
the Conoco gas station.

"When Glass left the gas station with Shaliyah
and found her Altima missing, she used a pay phone
to telephone Towles. After Towles failed to answer,
Glass telephoned 911. Glass told the emergency
dispatcher that her Altima was missing and that her
five-year-old son, Geontae, was asleep in the
backseat of the vehicle.

"The State presented evidence that the blue
pickup truck Cook saw belonged to Bobby Spydell.
Towles and Spydell had been friends since childhood,
and the two men were business partners, operating a
barbeque restaurant together. According to Spydell,
Towles telephoned Spydell around 2 or 3 a.m. on
December 4. Towles told Spydell that he needed
Spydell to pick him up in Albertville. Spydell
immediately left to meet Towles in his Ford pickup
truck.

"Spydell met Towles at a house in Albertville.
At Towles's direction, Spydell drove Towles to a
parking lot across the street from the Conoco gas
station. Towles then asked Spydell to take him
across the street to the Conoco gas station. Once
there, Towles got out of the pickup truck, briefly
walked away from the pickup truck and returned,
throwing cash on the passenger seat for Spydell.
Towles then walked toward the entrance of the Conoco
gas station, and Spydell drove his pickup truck to
his house.

"While the search for Geontae and the Altima was
ongoing, Investigator J.T. Cartee of the Albertville

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Police Department interviewed Glass and Towles.
Towles had few details to share with Investigator
Cartee at that time. Investigator Cartee
subsequently became aware of the involvement of the
blue pickup truck. In a second interview with
Investigator Cartee, Towles denied any knowledge of
a blue pickup truck or of its possible owner.

"Alabama State Trooper William Randall, Jr., who
was at the time a deputy with the Marshall County
Sheriff's Office, participated in a search of
Towles's residence located on Broad Street in
Albertville. Towles had consented to the search.
During the search, Trooper Randall found a receipt
for a utility bill in the name of 'Vicki Towles.'
The address listed on the receipt was not Broad
Street but was a Boaz address on Shady Grove Road.
Trooper Randall traveled to the Shady Grove address,
secured the residence, and awaited the arrival of
deputies with the Etowah County Sheriff's Office.

"Etowah County Sheriff Todd Entrekin arrived at
the Shady Grove address and entered the residence.
Sheriff Entrekin and some of his deputies performed
a sweep of the home searching for Geontae. Although
he did not find Geontae, Sheriff Entrekin did note
that the layout of the residence appeared to match
a description given by Shaliyah to officers of the
house in which she and Geontae had stayed the
weekend before Geontae's alleged kidnapping. Sheriff
Entrekin left the residence and returned to the
sheriff's office, intending to return with a search
warrant for the residence.

"While he was at the sheriff's office, Sheriff
Entrekin was informed that the missing Altima had
been discovered in the garage of the Shady Grove
residence. Inside the trunk of the Altima officers
found Geontae's body wrapped in a blanket. Among
other items recovered from the backseat of the
Altima was a blue-and-white-striped bedsheet with
reddish brown stains. Subsequent DNA testing of the

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stains on the bedsheet by Deborah Dodd, a forensic
scientist with the Alabama Department of Forensic
Sciences, revealed that the stains matched the DNA
profile of Geontae. On the bathtub in the back
bathroom of the house, additional reddish brown
stains were found. Dodd testified that these stains
contained a mixed DNA profile, which is not uncommon
for samples recovered in common areas, and that
Geontae was most likely a contributor to the sample.

"Investigator Mike Jones of the Etowah County
Sheriff's Office and Agent Brenn Tallent of the
Federal Bureau of Investigation interviewed Towles
at the sheriff's office at 3:15 a.m. on December 5,
2006. Towles was made aware of the discovery of
Geontae's body. At the outset of the interview,
Towles stated that he was 'responsible for what
happened to Geontae' and that he did not want
Shalinda charged in Geontae's death. Towles stated
to Investigator Jones that he was outside his
residence on Sunday evening when two masked men
approached him and demanded that Geontae come
outside. Towles agreed to the demand, believing that
Geontae would not be harmed because he was a small
child. Towles was then asked for money, and he gave
them all the money he had, which he approximated at
$15,000. Before leaving, one of the masked men took
Geontae behind the house and beat him while the
other masked man held Towles at gunpoint. Towles
took Geontae inside the residence and told him that
he would take Geontae to the doctor in the morning
if he were not feeling well. Towles did not identify
the men to Investigator Jones or Agent Tallent.

"Several items found in the Shady Grove
residence cast doubt on Towles's statement to
Investigator Jones and Agent Tallent. Specifically,
officers recovered an assault rifle, a pistol, a
bulletproof vest, and $33,382.

"Dr. Emily Ward, a state medical examiner,
performed the autopsy on Geontae. Dr. Ward noted

5
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many injuries she considered to be nonlethal.
Geontae's body had abrasions on his arms, back,
chest, stomach, groin, buttocks, legs, and left
foot, and had bruising on his right thigh and right
buttock. In addition to the fresh abrasions,
Geontae's body revealed wounds that had begun
healing, indicating to Dr. Ward that these wounds
were likely sustained a few days before Geontae's
death. Based on the curved nature of the wounds that
had begun healing, Dr. Ward speculated that they had
been inflicted with a belt.

"Geontae's body also presented more serious
injuries. Incisions to the right buttock and thigh
revealed that the muscles had a large accumulation
of blood. Dr. Ward explained that the accumulation
of blood was significant because it indicated that
the injury was 'extremely forceful.' Further, the
muscular damage sustained by Geontae caused an
increase of myoglobin in the bloodstream, which Dr.
Ward classified as a very toxic substance capable of
causing kidney failure. The level of myoglobin in
Geontae's bloodstream was 87 nanograms per
milliliter, where a normal level would be less than
5 nanograms per milliliter.

"Geontae's lower back did not appear to have
injuries to the skin, indicating that Geontae did
not receive a direct blow to that area. However, the
force applied to the buttocks was significant enough
to cause hemorrhaging that reached Geontae's spinal
cord. Based on the level of hemorrhaging in the
nerve fibers of the lower portion of the spinal
cord, Dr. Ward surmised that Geontae's injuries
resulted in paralyzation. Dr. Ward testified that in
her opinion Geontae died of complications from
blunt-force injuries but that he could have survived
had he received medical attention.

"Additionally, a portion of the skin on
Geontae's buttocks was denuded. Dr. Ward testified
that the denuded-skin injury was consistent with

6
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having been struck with a piece of wood and that she
asked investigators to return to the scene and to
look for something similar to a piece of wood that
may have been used to injure Geontae.

"Captain Jeff Hopper of the Etowah County
Sheriff's Office was sent to the Shady Grove
residence with instructions to look for a solid
object two to four inches wide. Captain Hopper
located a piece of wood on the property. The piece
of wood was approximately four feet long and two
inches wide. His attention was drawn to the piece of
wood because it bore a reddish brown stain. Dodd
performed DNA testing on the stain, determining that
the stain was blood and that the bloodstain matched
the DNA profile of Geontae.

"A search of a book bag recovered from the
Altima yielded Geontae's school-conduct chart for
the months of November and December. The chart
displayed that Geontae had received a smiley face
for the first two weeks of November but that Geontae
had received a straight face on the chart's most
recent entry. The State offered Geontae's conduct
assessment as Towles's motive for killing Geontae.

"....

"At trial, the State offered the testimony of
Shaquille Cameron, Towles's [other] son. Cameron,
who was 15 years old at the time of trial, lived
with Towles from the time he was 8 years old until
he was 9. Cameron was removed from Towles's custody
by the Alabama Department of Human Resources after
Cameron appeared at school with an injury to his
head. According to Cameron, Towles became angry with
him because Towles found a number of cups under
Cameron's bed. Cameron said that Towles picked up a
metal box fan and struck Cameron's head with the
fan. Additionally, Cameron alleged that on other
occasions Towles struck him with his fists or with
various implements, such as a belt, an extension

7
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cord, or a broomstick. Cameron testified that the
assaults were in response to disciplinary issues at
school. Towles objected to the admission of
Cameron's testimony on the ground that it violated
Rule 404(b), Ala. R. Evid. The circuit court
overruled Towles's objection, finding that Cameron's
testimony was relevant and admissible for the
limited purpose of proving Towles's intent.

"....

"The circuit court instructed the jury as
follows with respect to Cameron's testimony:

"'Ladies and gentlemen, there was
testimony during the course of the trial by
the young man Shaquille Cameron. And I want
to speak to you about that testimony and
what weight or how you can use that
testimony.

"'The Court charges you that there has
been testimony in this case of prior bad
acts by the defendant. You may not consider
this testimony as evidence that the
defendant had a bad character or that he
acted in conformity with that character on
the occasion that is the basis of the
present charge; nor may you consider this
evidence as proof that the defendant
committed the acts alleged in this case.

"'You may only consider the evidence
of prior acts as evidence of identity or of
an intent, purpose or motive to commit the
acts complained of in the indictment before
you today.'[1]

1
The State argued that Cameron's testimony was admissible
to show motive, intent, and identity. The trial court
overruled Towles's objection to the admission of Cameron's
testimony, determining that the testimony was admissible for
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"... Towles did not object to the circuit court's
jury instructions."

Towles v. State, __ So. 3d at __ (references to record and

emphasis omitted).

Towles argued on appeal to the Court of Criminal Appeals

that the admission of Cameron's testimony violated Rule

404(b), Ala. R. Evid., because, he argued, the sole purpose of

that testimony was to establish Towles's bad character. 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 limited purpose of proving Towles's intent. At the charge
conference before closing arguments, the trial court proposed
instructing the jury that it could consider Cameron's
testimony for purposes of proving identity, intent, and
motive. Towles objected, stating that Cameron's testimony had
been admitted for the limited purpose of showing intent. The
trial court agreed and determined that the jury would be
instructed that Cameron's testimony could be considered only
as proof of intent. However, when the trial court gave the
jury the limiting instruction regarding the prior-acts
evidence, it gave the more expansive limiting instruction,
which included the instruction that the jury could consider
the evidence for purposes of identity, intent, and motive.
Towles did not object to the instruction.
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The Court of Criminal Appeals initially questioned the

admissibility of Cameron's testimony under any exception to

the exclusionary rule. However, the Court of Criminal Appeals

assumed, without deciding, that, if the evidence relating to

Towles's physical abuse of Cameron was relevant to show intent

as the trial court had found, "'pursuant to the trial court's

broad instruction, [the jury] ... remained free to consider

that evidence for ... other [improper] purposes (including

[motive and identity]).'" Towles, __ So. 3d at __ (quoting Ex

parte Billups, 86 So. 3d 1079, 1087 (Ala. 2010)). This Court

found plain error in Ex parte Billups, where the trial court's

limiting instruction to the jury permitted the jury to

consider collateral-bad-acts evidence for implausible purposes

or for purposes other than those for which the collateral-bad-

acts evidence was offered.

The Court of Criminal Appeals reversed Towles's

conviction, finding that Cameron's testimony was inadmissible

to prove identity and motive. As to identity, the Court of

Criminal Appeals stated:

"Contrary to the circuit court's instructions,
the jury could not properly consider Cameron's
testimony under the identity exception to the
exclusionary rule. '[T]he identity exception to the

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general exclusionary rule of character ...
contemplates the situation where the now-charged
crime was committed in a novel and peculiar manner.'
Charles W. Gamble and Robert J. Goodwin, McElroy's
Alabama Evidence, § 69.01(8) (6th ed. 2009).

"'"'When extrinsic offense evidence is
introduced to prove identity, the likeness
of the offenses is the crucial
consideration. The physical similarity must
be such that it marks the offenses as the
handiwork of the accused.'" Ex parte Baker,
780 So. 2d 677, 680 (Ala. 2000) (quoting
United States v. Clemons, 32 F.3d 1504,
1508 (11th Cir. 1994) (further citations
omitted)). ... "'Much more is demanded than
the mere repeated commission of crimes of
the same class, such as repeated ... rapes.
The pattern and characteristics of the
crimes must be so unusual and distinctive
as to be like a signature.'" Hurley v.
State, 971 So. 2d 78, 83 (Ala. Crim. App.
2006) (quoting 1 McCormick on Evidence §
190 at 801–03 (4th ed. 1992) (footnotes
omitted)).'

"Moore v. State, 49 So. 3d 228, 233 (Ala. Crim. App.
2009).

"The primary assault to which Cameron testified
involved Towles's use of a metal box fan. The only
apparent similarity between the assault Cameron
suffered and the manner in which Geontae was killed
is that Cameron and Geontae are both Towles's sons.
During the acts at issue, different implements were
used by Towles –- Cameron was assaulted with a metal
box fan and Geontae was killed with a piece of wood;
the primary injuries differed -– Cameron was struck
on his head and Geontae on his buttocks; and the
apparent impetus for the beatings was different -–
Cameron was assaulted for having cups under his bed,
whereas the State's offered motive was that Geontae

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had a less than satisfactory conduct report from
school. In short, there was no showing that the
assaults to which Cameron testified and the manner
in which Geontae was killed possessed the novelty or
peculiarity necessary to render Cameron's testimony
admissible under the identity exception. In fact,
the circuit court explicitly recognized that the
identity exception was not applicable. Accordingly,
the circuit court erred by allowing the jury to
consider Cameron's testimony for the purpose of
establishing Towles's identity as Geontae's
murderer."

Towles, __ So. 3d at __ (citations to record omitted).

As to motive, the Court of Criminal Appeals stated:

"'Motive is defined as "an inducement, or
that which leads or tempts the mind to do
or commit the crime charged." Spicer v.
State, 188 Ala. 9, 11, 65 So. 972, 977
(1914). Motive has also been described as
"that state of mind which works to 'supply
the reason that nudges the will and prods
the mind to indulge the criminal intent.'"
[Charles Gamble, Character Evidence: A
Comprehensive Approach 42 (1987).]'

"Bowden v. State, 538 So. 2d 1226, 1235 (Ala. 1988).

"The State argues on appeal that Cameron's
testimony was admissible, and therefore properly
considered by the jury, under the motive exception
to the exclusionary rule. Specifically, the State
cites Bedsole v. State, 974 So. 2d 1034 (Ala. Crim.
App. 2006), arguing that the assaults on Cameron
'tended to show that Towles was motivated to
physically beat or assault children for disciplinary
problems,' particularly those disciplinary problems
that occur at school.

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"In Bedsole, this Court held that evidence of
similar collateral sex acts with a child was
admissible under Rule 404(b), Ala. R. Evid., to
prove that the appellant was 'motivated by an
unnatural sexual desire for young girls.' Bedsole,
974 So. 2d at 1038–40; see also Ex parte Register,
680 So. 2d 225, 226–28 (Ala. 1994); Garner v. State,
977 So. 2d 533, 536–38 (Ala. Crim. App. 2007).
However, the liberal view of the motive exception to
Rule 404(b) found in Bedsole, Register, and Garner
has been narrow in application. Alabama courts have
not expanded the holdings of these cases beyond the
scope of cases involving the sexual abuse of a
minor, and we decline to do so today.

"Simply stated, there was no logical tendency to
lead to any inference that Towles, because he had
assaulted his son Cameron three years earlier, was
motivated to kill Geontae. Accordingly, the jury
should not have been instructed that it could
consider Cameron's testimony as evidence of Towles's
motive."

Towles, __ So. 3d at __.

Additionally, the Court of Criminal Appeals concluded:

"The circuit court's instructions were erroneous
because they permitted the jury to consider
Cameron's testimony for improper purposes. Given the
highly prejudicial nature of collateral acts
involving child abuse, this Court holds that the
erroneous jury instructions '"affected [Towles's]
substantial rights and ... seriously affected the
fairness and integrity of the proceeding against
him."' Ex parte Billups, 86 So. 3d [1079] at 1086
[(Ala. 2010)] (quoting Billups v. State, 86 So. 3d
1032, 1079 (Ala. Crim. App. 2009) (Welch, J.,
dissenting))."

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Towles, __ So. 3d at __. Presiding Judge Windom dissented for

the same reasons stated in her special writing in R.C.W. v.

State, [Ms. CR-11-0387, November 2, 2012] __ So. 3d __ (Ala.

Crim. App. 2012) ("R.C.W. I"), which we discuss in greater

detail infra.

Standard of Review

Towles objected to the admission of the collateral-bad-

acts evidence on the ground that the evidence violated Rule

404(b), Ala. R. Evid. "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)." Irvin v. State, 940 So. 2d 331,

345 (Ala. Crim. App. 2005). Further, Rule 45, Ala. R. App.

P., provides:

"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 case, it should
appear that the error complained of has probably

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injuriously affected substantial rights of the
parties."

This Court stated in Ex parte Crymes, 630 So. 2d 125, 126

(Ala. 1993):

"[T]his 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."

See also Ex parte Greathouse, 624 So. 2d 208, 210 (Ala. 1993)

(noting 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?'" (quoting United States v. Hastings, 461 U.S. 499,

511 (1983))).

Although Towles objected to the admission of the

collateral-bad-acts evidence, the record does not demonstrate

that Towles objected to the actual limiting instruction given

to the jury. As discussed supra in note 1, the trial court

proposed at the charge conference instructing the jury that it

could consider Cameron's testimony for purposes of proving

identity, intent, and motive. Towles objected, stating that

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Cameron's testimony could be considered only for the limited

purpose of showing intent. The trial court agreed and

concluded that the jury would be instructed that Cameron's

testimony could be considered only as proof of intent.

However, when the trial court charged the jury, it gave the

more expansive limiting instruction, which included the

instruction that the jury could consider Cameron's testimony

for purposes of identity, intent, and motive. Towles did not

object to the instruction. Towles contends on appeal that he

preserved for appellate review the issue of the limiting

instruction because "[a] defendant may make a clear objection

at the charge conference in lieu of objecting at the close of

the oral instructions." Withee v. State, 728 So. 2d 684, 688

(Ala. Crim. App. 1998). Although a defendant may make an

objection to a jury charge at the charge conference in lieu of

objecting at the close of the trial court's oral charge to the

jury, the defendant must obtain an adverse ruling from the

trial court at the charge conference in order for the issue to

be preserved for appellate review. This court may review only

those matters on which the trial court has made rulings

adverse to the party seeking review. Breckenridge v. State,

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628 So. 2d 1012, 1018 (Ala. Crim. App. 1993). Here, Towles

received a favorable ruling from the trial court at the charge

conference when he objected to the proposed limiting

instruction. Thus, Towles was required to object to the trial

court's more expansive limiting instruction during the trial

court's oral charge to the jury in order to preserve the issue

for appellate review. He did not. Accordingly, the issue

regarding the trial court's limiting instruction is reviewable

for plain-error only. See Rule 45A, Ala. R. App. P.

"'The standard of review in reviewing a claim under
the plain-error doctrine is stricter than the
standard used in reviewing an issue that was
properly raised in the trial court or on appeal. As
the United States Supreme Court stated in United
States v. Young, 470 U.S. 1, 105 S.Ct. 1038, 84 L.
Ed.2d 1 (1985), the plain-error doctrine applies
only if the error is "particularly egregious" and if
it "seriously affect[s] the fairness, integrity or
public reputation of judicial proceedings." See Ex
parte Price, 725 So. 2d 1063 (Ala. 1998).'"

Ex parte Brown, 11 So. 3d 933, 935–36 (Ala. 2008) (quoting

Hall v. State, 820 So. 2d 113, 121–22 (Ala. Crim. App. 1999)).

Discussion

The State argues that the Court of Criminal Appeals erred

in reversing Towles's conviction based on the admission of

Cameron's testimony because, it says, the testimony was

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relevant and admissible to prove Towles's motive for killing

Geontae. The State further argues that the Court of Criminal

Appeals erred in failing to apply a harmless-error analysis to

the trial court's erroneous limiting instruction, which

allowed the jury to consider Towles's collateral bad acts for

improper purposes. Towles contends that the Court of Criminal

Appeals did not err in determining that Cameron's testimony

was inadmissible to show motive because, he says, there was no

logical or factual connection between Geontae's killing and

the incidents of abuse testified to by Cameron.

Rule 404(b) has been explained as follows:

"'"'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)
"'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

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almost an irreversible impact upon the minds of the
jurors.'" Ex parte Arthur, 472 So. 2d 665, 668 (Ala.
1985), quoting McElroy's supra, § 69.01(1)....

"'... The well-established exceptions to the
exclusionary rule include: (1) relevancy to prove
identity; (2) relevancy to prove res gestae; (3)
relevancy to prove scienter; (4) relevancy to prove
intent; (5) relevancy to show motive; (6) relevancy
to prove system; (7) relevancy to prove malice; (8)
relevancy to rebut special defenses; and (9)
relevancy in various particular crimes. Willis v.
State, 449 So. 2d 1258, 1260 (Ala. Crim. App. 1984);
Scott v. State, 353 So. 2d 36 (Ala. Crim. App.
1977). However, the fact that evidence of a prior
bad act may fit into one of these exceptions will
not alone justify its admission. "'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)].'"

Ex parte Jackson, 33 So. 3d 1279, 1284-85 (Ala. 2009) (quoting

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

1986)).

"'"[I]t is 'only when the probative value
of evidence is "substantially outweighed by
the danger of unfair prejudice," ... that

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relevant evidence should be excluded.'
United States v. Bailleaux, 685 F.2d 1105,
1111 (9th Cir. 1982) (emphasis in
original). '[T]he probative value of the
evidence of other offenses must also be
balanced against its "prejudicial nature"
to determine its admissibility.
"Prejudicial" is used in this phrase to
limit the introduction of probative
evidence of prior misconduct only when it
is unduly and unfairly prejudicial.' State
v. Daigle, 440 So. 2d 230, 235 (La. Ct.
App. 1983).

"'"'Of course, "prejudice, in this context,
means more than simply damage to the
opponent's cause. A party's case is always
damaged by evidence that the facts are
contrary to his contention; but that cannot
be ground for exclusion. What is meant here
is an undue tendency to move the tribunal
to decide on an improper basis, commonly,
though not always, an emotional one." State
v. Hurd, Me., 360 A.2d 525, 527 n. 5
(1976), quoting McCormick, Handbook on the
Law of Evidence § 185 at 439 n.31 (2nd ed.
1972).'

"'"State v. Forbes, 445 A. 2d 8, 12 (Me. 1982)."'"

White v. State, [Ms. CR-09-0662, August 30, 2013] __ So. 3d

__, __ (Ala. Crim. App. 2013) (quoting Averette v. State, 469

So. 2d 1371, 1374 (Ala. Crim. App. 1985)).

Regarding the motive exception to Rule 404(b), this Court

has stated:

"'Motive is an inducement, or that which leads
or tempts the mind to do or commit the crime

20
1121099

charged.' Spicer v. State, 188 Ala. 9, 26, 65 So.
972, 977 (1914). Motive is 'that state of mind which
works to "supply the reason that nudges the will and
prods the mind to indulge the criminal intent."' C.
Gamble, Character Evidence[: A Comprehensive
Approach], at 42 [(1987)]. 'Furthermore, testimony
offered for the purpose of showing motive is always
admissible. It is permissible in every criminal case
to show that there was an influence, an inducement,
operating on the accused, which may have led or
tempted him to commit the offense.' (Emphasis in
original, citations omitted.) Bowden v. State, 538
So. 2d 1226, 1235 (Ala. 1988)."

Ex parte Register, 680 So. 2d 225, 227 (Ala. 1994).

As mentioned in the Court of Criminal Appeals' statement

of facts quoted above, the State offered Geontae's negative-

conduct assessment as Towles's motive for killing Geontae.

The State sought to establish that as the motive with

testimony from Cameron relating to collateral acts of abuse

perpetrated upon him by Towles. Cameron was 15 years old at

the time of trial. Cameron testified that when he was nine

years old he was living with Towles, who is his biological

father. Cameron stated that Towles would "spank" him for

getting into trouble at school:

"Q. What did you usually get into trouble about?

"A. School, acting up.

"Q. Did you get in worse trouble if you had been
in trouble at school?

21
1121099

"A. Yes, ma'am.

"....

"Q. Describe for us, if you will, what you were
spanked with.

"A. Belts and extension cords.

"Q. Were they used together or separately?

"A. Separately.

"Q. What came first?

"A. The belts did. And then the extension cords
followed after my behavior got worse in school.

"....

"Q. Was there ever an occasion where you were
hit with something other than the items that you
have described for us now?

"A. Yes, ma'am.

"Q. What was that?

"A. A broomstick.

"Q. And what happened with the broomstick?

"A. The broomstick broke. Just like one of the
little flimsy ones with the kind of flimsy metal on
it.

"....

"Q. Did you ever get hit with anything else?

"A. Yes, ma'am.

22
1121099

"Q. What was that?

"A. His fist.

"Q. Tell us about that, if you will.

"A. Well, one time I got hit in my mouth. And
then after the extension cord stopped working he
told me we were going to start fighting if I got
into any more trouble.

"Q. And he hit you with his fist in your mouth?

"A. Yes, ma'am.

"Q. What did he do after he hit you with his
fist in your mouth?

"A. Well, he cried. We came back from the
doctor, and a day later he came and apologized to
me.

"Q. Did he cry before he took you to the doctor?

"A. No, ma'am."

Cameron was eventually removed from Towles's home by the

Alabama Department of Human Resources ("DHR") after Towles

struck him in the head with a metal "box" fan. Cameron stated

that Towles entered his bedroom one morning before school and

discovered a number of plastic drinking cups under his bed.

Cameron testified that Towles began "fussing" and "yelling" at

him because the cups had not been put away. He stated that

Towles then picked up a metal "box" fan from the floor and

23
1121099

swung it at him, striking him in the head. Cameron testified

that the blow to his head with the fan produced a golf-ball-

size knot on his head that was noticed by students at his

school. Cameron's teacher informed the school's principal, who

then contacted DHR. Cameron was removed from Towles's home,

and he never returned.

Geontae's teacher testified that when Geontae received

the negative-conduct grade on the Friday before he was killed,

Geontae stated that he "would be getting in trouble when he

got home." The State's evidence indicates that Geontae died

after being beaten with a wooden implement. Cameron testified

that he suffered physical abuse at the hands of Towles

following disciplinary issues at school. Cameron's testimony

indicated that Towles would become angered when Cameron got

into trouble at school and responded by beating him with

various implements that happened to be at hand, including

belts, extension cords, a broomstick, and his fists. Although

the last incident of physical abuse perpetrated upon Cameron

by Towles before Cameron was removed from Towles's home was

brought about by Towles's discovery of drinking cups under

Cameron's bed, as opposed to a disciplinary issue at school,

24
1121099

Towles was nevertheless motivated to punish Cameron for the

disciplinary infraction by striking him with an implement

close at hand, i.e., the metal "box" fan.

The State offered Geontae's negative-conduct assessment

as Towles's motive for killing Geontae. The State sought to

establish this motive with testimony from Cameron as to prior

acts of abuse perpetrated upon him by Towles following

disciplinary issues at school. Cameron's testimony, viewed in

its entirety, establishes the logical inference that Towles

was motivated to beat or assault his children because of

disciplinary issues at school. Accordingly, we conclude that

the collateral-acts evidence introduced by the State through

Cameron's testimony was relevant and reasonably necessary to

the State's case because it related to motive and that the

probative value of the evidence is not substantially

outweighed by its potential prejudicial effects. Ex parte

Jackson, supra.2

2
Although we do not necessarily agree with the Court of
Criminal Appeals' entire reasoning as to its determination
that the collateral-acts evidence in this case was
inadmissible to show identity, we do agree with that court's
conclusion that Cameron's testimony was inadmissible for the
purpose of establishing Towles's identity as Geontae's
murderer.
25
1121099

Having determined that Cameron's testimony was admissible

under the motive exception to Rule 404(b), Ala. R. Evid., we

must now address the issue of the trial court's limiting

instruction. Relying on this Court's decision in Ex parte

Billups, 86 So. 3d 1079 (Ala. 2010), the Court of Criminal

Appeals determined that the trial court's limiting instruction

to the jury was erroneous because it permitted the jury to

consider Cameron's testimony for the improper purposes of

proving intent and identity.

In Ex parte Billups, the defendant was indicted in June

2005 for the murder of Stevon Lockett. The defendant had been

indicted in October 2004 on 13 counts of capital murder in

relation to the killing of four men at the Avanti East

Apartments in Birmingham. In November 2005, the defendant was

convicted of 13 counts of capital murder in connection with

the Avanti East killings. The trial court sentenced the

defendant to death.

In December 2005, before the defendant was tried for

Lockett's murder, the State gave the defense notice of its

intent to present evidence regarding the defendant's

involvement in the Avanti East killings during his trial for

26
1121099

Lockett's murder. The trial court, over the defendant's

objection, determined that the evidence regarding the

defendant's involvement in the Avanti East killings was

admissible "'based upon the close proximity, the fact that the

same weapon was used, and the fact that [the offenses] [were]

very similar.'" Ex parte Billups, 86 So. 3d at 1081.

At trial, the State presented an overwhelming amount of

evidence relating to the defendant's involvement in the Avanti

East killings. The evidence presented by the State consisted

of eyewitness testimony of the Avanti East killings by two

witnesses; testimony of forensic experts, a firearms expert,

and a detective relating to the Avanti East killings; and

photographic evidence demonstrating the victims' wounds. The

State first mentioned evidence relating to the defendant's

involvement in the Avanti East killings in its opening

statement, during which the State provided the jury with a

detailed account of those killings and displayed postmortem

photographs of the four victims of the Avanti East killings.

During its case-in-chief, the State called seven witnesses who

testified regarding the Avanti East killings. During its

cross-examination of the defendant, the State asked several

27
1121099

questions regarding the defendant's involvement in the Avanti

East killings. The State also introduced during its cross-

examination of the defendant the postmortem photographs of the

victims of the Avanti East killings that it had displayed

during the opening statement. Finally, the State made

numerous references to the Avanti East killings in its closing

argument. The defendant objected on several occasions to the

introduction of the evidence relating to his involvement in

the Avanti East killings, arguing, among other things, that

the evidence was inadmissible in that it was unnecessary and

prejudicial.

The trial court instructed the jury as follows regarding

its consideration of the evidence of the defendant's

involvement in the Avanti East killings:

"'Ladies and gentlemen, let me tell you one
thing about this testimony. You're hearing testimony
today about another incident that allegedly
occurred, not the same one that [the defendant] is
actually charged with in this case.

"'The law is clear that evidence of other
crimes, wrongs, or acts is not admissible to prove
the character of a person in order to show action
and conformity therewith. In other words, evidence
of other crimes allegedly committed by the defendant
cannot be used to show bad character.

28
1121099

"'The evidence being presented regarding other
acts allegedly committed by the defendant can be
considered by you only for the purpose of
determining either motive, opportunity, intent,
preparation, plan, knowledge, identity, or absence
of mistake or accident.

"'I'm going to repeat those for you. But if you
think the evidence from the other case is relevant
to the issues of motive, opportunity, intent,
preparation, plan, knowledge, identity, or absence
of mistake or accident in Stevon Lockett's death,
then you can consider this evidence.

"'But it cannot be used by you for any other
purpose; all right?'"

Ex parte Billups, 86 So. 3d at 1082. Further, the trial court

stated the following in its final instructions to the jury:

"'Now, as I instructed you during the trial,
there's been some testimony regarding an allegation
of other crimes. Evidence of other crimes, wrongs or
acts is not admissible to prove the character of a
person in order to show action and conformity
therewith. In other words, evidence of the other
crimes allegedly committed by the defendant cannot
be used to show bad character. It cannot be used to
show bad character. The evidence being presented
regarding other acts allegedly committed by the
defendant can be considered by you only for the
purpose of determining motive, opportunity, intent,
preparation, plan, knowledge, identity, or absence
of mistake or accident, as I have instructed you. If
you think the evidence from the other case is
relevant to the issues of motive, opportunity,
intent, preparation, plan, knowledge, identity, or
absence of mistake or accident in Stevon Lockett's
death, then you can consider it. But it cannot be
used by you for any other purpose.'"

29
1121099

Ex parte Billups, 86 So. 3d at 1082.

The Court of Criminal Appeals concluded that the trial

court did not err in admitting the collateral-acts evidence

regarding the defendant's involvement in the Avanti East

killings, stating, in relevant part, that that evidence "was

relevant to establish [the defendant's] identity, intent,

pattern or plan." Billups v. State, 86 So. 3d 1032, 1053 (Ala.

Crim. App. 2009). As to the trial court's limiting instruction

regarding the collateral-acts evidence, the Court of Criminal

Appeals noted that "the trial court repeatedly instructed the

jury as to the limited purpose for which evidence about the

[Avanti East] killings ... was being admitted" and that the

trial court "specifically instructed the jury that it could

not use the collateral bad act evidence to show [the

defendant's] bad character or to show that he acted in

conformity therewith." Billups, 86 So. 3d at 1053.

Judge Welch authored a vigorous dissent to the Court of

Criminal Appeals' opinion, concluding that, although the

collateral-acts evidence relating to the Avanti East killings

may have been admissible to show motive, it was not

reasonably necessary to prove motive and that the prejudicial

30
1121099

impact of the substantial evidence relating to the Avanti East

killings so outweighed its probative value that the motive

exception did not justify its admission into evidence.

Billups, 86 So. 3d at 1073. Specifically, Judge Welch

stated:

"The record in this case presents a textbook example
of the reason the exclusionary rule prohibiting
collateral-act evidence was created; the extensive
evidence of collateral acts in [the defendant's]
trial for the murder of Lockett permitted this trial
to become, for all intents and purposes, a trial for
murders of the four Hispanic men as well. The
inadmissible collateral evidence diverted the
jurors' minds from the main issue of [the
defendant's] criminal responsibility for Lockett's
death and had an irreversible impact on the jury's
decision-making process in this case. ...

"....

"In addition to the fact that the evidence about
the quadruple murders was unnecessary to the State's
case, the evidence was overwhelmingly and unduly
prejudicial to [the defendant]. The State presented
such substantial evidence and argument about the
quadruple-murder case, beginning in its opening
argument to the jury when it displayed photographs
of the four victims, that the record reads almost as
if [the defendant] were being tried for both crimes
in this trial. There was no way the jury could have
excluded consideration of the significant and
detailed collateral evidence as impermissible
character evidence and there was a substantial
danger that the jury would have made an
impermissible inference, based on the collateral
evidence, that [the defendant] was a depraved
massacring killer so he probably killed Lockett,

31
1121099

too. Allowing the jury to hear the collateral
evidence was far more prejudicial than probative of
the issues the majority contends it was admissible
to prove."

Billups, 86 So. 3d at 1072-77. Additionally, Judge Welch

concluded that the trial court did not properly instruct the

jury as to the purposes for which it could consider the

collateral-acts evidence of the defendant's involvement in the

Avanti East killings and that the erroneous limiting

instruction actually served to exacerbate the error caused by

admitting the collateral-acts evidence. Judge Welch stated:

"[A]lthough the majority has correctly stated that
the trial court did issue 'limiting' instructions,
those instructions were wrong as a matter of law.
The trial court accepted the State's invitation at
trial to instruct the jury that it could use the
collateral-act evidence for any of the reasons
listed in Rule 404(b), [Ala. R. Evid.,] even though
the State never argued that the evidence was
admissible for most of those purposes. The State
never argued that evidence about the [Avanti East
killings] fell within the exceptions in the
exclusionary rule for evidence related to
opportunity, preparation, knowledge, or absence of
mistake or accident. Thus, the trial court, by
issuing its erroneous instructions, greatly enhanced
the prejudice caused when evidence about the [Avanti
East killings] was admitted because the erroneous
instructions permitted the jury to consider the
illegal evidence for many issues other than those
for which it was purportedly admitted.

"This Court considered a similar issue in
McAdory v. State, 895 So. 2d 1029 (Ala. Crim. App.

32
1121099

2004), when the trial court incorrectly instructed
the jury about the issues relative to which evidence
of the defendant's prior crimes could be considered.
The Court stated: 'A limiting curative instruction
only mitigates the prejudicial admission of illegal
evidence if the instruction is legally sound. The
jury could not have considered the prior convictions
for knowledge and intent because neither was at
issue.' 895 So. 2d at 1036. Thus, not only was
substantial, prejudicial evidence about the [Avanti
East killings] erroneously admitted, but the jury
also received misleading instructions that permitted
it to consider that prejudicial evidence for issues
far beyond those for which the evidence was
initially admitted. The confusion of the jury and
the probable prejudice to [the defendant] is obvious
and exacerbated the devastating harm that resulted
from the erroneous admission of the testimony.
Although defense counsel did not object to the
instructions, based on the record as a whole, I
believe that the error affected [the defendant's]
substantial rights and that it seriously affected
the fairness and integrity of the proceeding against
him."

Billups, 86 So. 3d at 1078-79 (emphasis added).

The defendant argued to this Court that the trial court

had committed reversible error in instructing the jury as to

the purposes for which it could consider the collateral-acts

evidence because, he argued, the trial court's limiting

instruction allowed the jury to consider the collateral-acts

evidence for purposes not in dispute. In reversing the

decision of the Court of Criminal Appeals, this Court stated:

33
1121099

"Assuming, without deciding, that the evidence
regarding [the defendant's] involvement in the
Avanti East killings was, as the State contends,
relevant to show plan, identity, motive, and intent,
the jury, pursuant to the trial court's broad
instruction, nonetheless remained free to consider
that evidence for numerous other purposes (including
opportunity, preparation, knowledge, or absence of
mistake or accident) that were indisputably not at
issue in this case. See McAdory v. State, 895 So. 2d
1029, 1036 (Ala. Crim. App. 2004) (plurality
opinion) (concluding that the jury could not have
properly considered the defendant's prior
convictions to show knowledge and intent because
neither was at issue). Presenting the jury with such
a far-reaching 'limiting' instruction carries with
it the same problems as providing the jury with no
specific purpose for considering the other crimes,
wrongs, or acts evidence.

"'[A]n instruction should advise the jury on the
purposes for which prior acts are admitted, meaning
uses that are plausible in the case at hand, and
should not include a laundry list of every
conceivable use.' 1 Christopher B. Mueller and Laird
C. Kirkpatrick, Federal Evidence § 4:30 at 789 (3d
ed. 2007) (emphasis added). In this case, however,
the jury was allowed to consider the evidence
regarding [the defendant's] involvement in the
Avanti East killings for several implausible
purposes, including, among others, opportunity and
absence of mistake or accident. For example, [the
defendant] made no argument at trial that Lockett's
killing was the result of an accident or that he
lacked the opportunity to kill Lockett; rather, [the
defendant's] defense was that another person,
Charles Cooper, was responsible for Lockett's
murder.

"By simply reciting the complete 'laundry list'
of permissible theories under Rule 404(b), the trial
court's instruction in this case gave the jury

34
1121099

inadequate guidance. See Ex parte Belisle, 11 So. 3d
323, 333 (Ala. 2008) ('[A]n appellate court
"presume[s] that the jury follows the trial court's
instructions unless there is evidence to the
contrary."' (quoting Cochran v. Ward, 935 So. 2d
1169, 1176 (Ala. 2006))). The trial court's
instruction also failed to limit the State to the
purposes –- as nonspecific as they were –- that it
advanced in support of admission of the evidence
regarding [the defendant's] involvement in the
Avanti East killings. Thus, we conclude that the
trial court erred by failing to limit the jury's
consideration of that evidence to only those
purposes for which the evidence was purportedly
offered by the State (plan, identity, motive, and
intent). See Huddleston [v. United States, 485 U.S.
681 (1988)]; cf. United States v. Tse, 375 F.3d 148,
158 (1st Cir. 2004) (finding that the district court
'adequately limited the jury's consideration of
[certain Rule 404(b)] evidence' when the court
instructed the jury that it could not use that
evidence 'to make a propensity inference' and that
the jury could use that evidence to determine only
the defendant's 'knowledge and intent').

"With regard to the erroneous jury instruction,
we agree with Judge Welch's conclusions that '[t]he
confusion of the jury and the probable prejudice to
[the defendant] is obvious' and that 'the error
affected [the defendant's] substantial rights and
... seriously affected the fairness and integrity of
the proceeding against him.' Billups, 86 So. 3d at
1079 (Welch, J., dissenting). Accordingly, we
conclude that, under the particular circumstances of
this case, the trial court's failure to properly
instruct the jury regarding the purposes for which
it could consider the evidence of [the defendant's]
involvement in the Avanti East killings constituted
plain error."

Ex parte Billups, 86 So. 3d at 1085-86.

35
1121099

This Court recently decided R.C.W. v. State, [Ms.

1120562, May 30, 2014] __ So. 3d __ (Ala. 2014) ("R.C.W. II").

R.C.W. was tried for and convicted of sexually abusing T.W.,

his biological daughter. During the course of the trial the

State presented testimony from R.C.W.'s two other biological

daughters regarding specific acts of sexual abuse perpetrated

upon them. R.C.W. argued that the evidence was not necessary

to the State's case because, he said, motive, intent, and

identity would not be contested at trial. The State argued

that the evidence was admissible pursuant to Rule 404(b), Ala.

R. Evid., for the purposes of showing motive, opportunity,

intent, or plan. The trial court allowed the collateral-acts

testimony and charged the jury as follows:

"'"You have heard testimony and evidence
regarding crimes, wrongs or bad acts regarding the
Defendant. The Defendant is on trial only for the
criminal charges that I have read to you in the
indictments, not for anything else. Evidence of
other crimes, wrongs, or bad acts was allowed into
evidence not to prove that the Defendant may or may
not be a bad person or may or may not be a person of
bad character or that it made him more likely to
commit the crimes charged in these indictments,
because that would be wrong and legally
impermissible. The evidence of other crimes, wrongs
or bad acts was allowed into evidence for one narrow
purpose only. That is, it may be considered by you
for the limited purpose as regarding the Defendant's
motive, opportunity, intent, or plan."'"

36
1121099

R.C.W. II, ___ So. 3d at ___ (quoting R.C.W. I, ___ So. 3d at

___). R.C.W. objected to the trial court's limiting

instruction as follows:

"'"Judge, with regard to the charge on [Rule] 404(b)
evidence. The portion where you said that it's for
the limited purpose of motive, opportunity, or plan,
I would submit that those are not matters in
controversy and by having it go –- I believe that
that is different than what the State had said
originally, was their purpose for offering that
evidence. We except and object to the Court giving
it with that broad of reason for it coming in."'"

R.C.W. II, ___ So. 3d at ___ (quoting R.C.W. I, ___ So. 3d at

___).

The Court of Criminal Appeals concluded on appeal that

the collateral-act evidence of R.C.W.'s sexual misconduct

involving T.W.'s half sisters was admissible to establish

motive. However, the Court of Criminal Appeals, relying on

this Court's decision in Ex parte Billups, further concluded

that "it was reversible error for the trial court to allow the

jury to consider the evidence of collateral sexual misconduct

involving T.W.'s half sisters for the improper purposes of

intent, opportunity, and plan," where those points were not at

issue in R.C.W.'s trial, R.C.W. I, __ So. 3d at __, because

a "jury may not consider evidence of collateral sexual

37
1121099

misconduct for an implausible purpose." R.C.W. I, ___ So. 3d

at __.

Presiding Judge Windom authored a dissenting opinion in

which she agreed with the holding of the main opinion that

evidence of R.C.W.'s prior sexual abuse of his other daughters

was admissible to establish his motive for sexually abusing

T.W. R.C.W. I, __ So. 3d at __ . Presiding Judge Windom also

agreed with the conclusion in the main opinion that the trial

court's limiting instruction erroneously allowed the jury to

consider evidence of R.C.W.'s collateral sexual abuse for

purposes other than to show motive, i.e., for the "'improper

purposes of intent, opportunity, and plan.'" R.C.W. I, __ So.

3d at __ (quoting main opinion). However, Presiding Judge

Windom concluded that R.C.W. suffered no harm as the result of

the trial court's erroneous jury instruction, which allowed

the jury to consider evidence of R.C.W.'s collateral sexual

abuse for purposes other than motive. Presiding Judge Windom

explained:

"In Ex parte Billups, 86 So. 3d at 1084–85, the
Alabama Supreme Court held that when evidence of
collateral bad acts is admitted for one or more
purposes other than to show bad character, the
circuit court's failure to give an instruction that
limits the jury's consideration of that evidence to

38
1121099

only the purpose for which it was admitted
constitutes error. Specifically, the Court held that
the circuit court's limiting instruction relating to
Rule 404(b) evidence that 'simply recit[ed] the
complete "laundry list" of permissible theories
under Rule 404(b) [for the admission of
collateral-bad-act evidence], ... gave the jury
inadequate guidance [and constituted error].'
Billups, 86 So. 3d at 1086.

"The Supreme Court did not, however, create a
per se rule requiring reversal every time a circuit
court's limiting instruction relating to collateral
bad acts includes purposes listed in Rule 404(b) for
which the evidence was not admitted. To the
contrary, the Supreme Court has repeatedly held that
the failure to give a limiting instruction and/or
the giving of an erroneous limiting instruction must
be reviewed on a case-by-case basis. Snyder v.
State, 893 So. 2d 482, 485 (Ala. 2001) (explaining
that 'each inquiry regarding the propriety of an
instruction on the use of evidence of prior
convictions ... must be determined on a case-by-case
basis'); Ex parte Martin, 931 So. 2d 759, 768 (Ala.
2004) (same); Johnson v. State, 120 So. 3d 1119,
1126 (Ala. 2006) (same).

"....

"Although evidence of R.C.W.'s collateral bad
acts was properly admitted as substantive evidence
to show his motive and although the circuit court
correctly prohibited the jury from considering
R.C.W.'s collateral bad acts as evidence of his bad
character, the majority finds reversible error in
the circuit court's limiting instruction because it
allowed the jury to consider that evidence for the
'improper purposes of [establishing] intent,
opportunity, and plan[, points that were] not at
issue in this case.' [R.C.W. I,] __ So. 3d at __.
I, however, disagree. Because it was not plausible
for evidence of R.C.W.'s collateral bad acts to

39
1121099

establish his intent, opportunity, or plan, any
error in allowing the jury to consider the evidence
for those purposes was harmless. In United States v.
Levy–Cordero, 67 F.3d 1002, 1011 (1st Cir. 1995),
the government offered evidence of the appellant's
collateral bad acts to establish his consciousness
of guilt. The trial court, however, gave a limiting
instruction that directed the jury to consider the
collateral-bad-act evidence for the purpose of
establishing the appellant's intent and knowledge.
Id. The United States Court of Appeals for the First
Circuit held that a trial court's limiting
instruction relating to the Rule 404(b) evidence
improperly allowed the jury to consider the
appellant's collateral bad acts as evidence of his
intent and knowledge because those were not reasons
that the evidence was admitted. Although the trial
court improperly instructed the jury that it could
consider the appellant's collateral bad acts for
intent and knowledge, the First Circuit held that
the error was harmless. Id. The Court explained that
the erroneous instruction was harmless because there
was 'no logical reason why [the collateral bad acts]
would demonstrate appellant's intent or knowledge
with respect to [charged] offenses ....' Id. Thus,
the circuit court's instruction was harmless because
it 'instructed the jury that it could draw an
inference that the evidence could not logically
support.' Id.

"In this case, the circuit court's instruction
that allowed the jury to consider R.C.W.'s sexual
misconduct for 'improper purposes of [establishing]
intent, opportunity, and plan,' [R.C.W. I,] __ So.
3d at __, was harmless because there was 'no logical
reason why [the collateral bad acts] would
demonstrate appellant's intent[, plan, or
opportunity] with respect to [charged] offenses....'
Levy–Cordero, 67 F.3d at 1011. Stated differently,
R.C.W.'s collateral sexual misconduct did not
establish his specific intent to commit, his
opportunity to commit, or a plan to commit the

40
1121099

charged offenses. Therefore, the circuit court's
erroneous limiting instruction was harmless because
it merely allowed the jury to 'draw an inference
that the evidence could not logically support.' Id.

"Additionally, as the majority explains,
R.C.W.'s intent, opportunity, and plan were not at
issue at trial. R.C.W. was T.W.'s father, and they
lived together at the time of the offenses. From
this evidence, the jury must have drawn the
conclusion that R.C.W., who was living with his
daughter, had the opportunity to rape, sodomize, and
sexually abuse her. Because R.C.W.'s opportunity to
commit the charged offenses was clearly established
at trial, the circuit court's instruction that
allowed the jury to consider R.C.W.'s collateral bad
acts for the purpose of establishing opportunity was
harmless. Cf. Dawson v. State, 675 So. 2d 897, 900
(Ala. Crim. App. 1995) ('The erroneous admission of
evidence that is merely cumulative is harmless.'
(citing Reese v. City of Dothan, 642 So. 2d 511, 515
(Ala. Crim. App. 1993))); Woods v. State, 13 So. 3d
1, 23 (Ala. Crim. App. 2007). Likewise, as the
majority states, '[t]he intent necessary to these
types of crimes may be inferred by the jury from the
acts themselves.' [R.C.W. I,] __ So. 3d at __.
Because R.C.W.'s general intent was established by
the acts themselves, the circuit court's instruction
allowing the jury to consider additional evidence of
intent was harmless. Cf. Dawson, 675 So. 2d at 900;
Woods, 13 So. 3d at 23. Finally, as the majority
states, R.C.W.'s identity was not at issue in this
case because R.C.W. did not allege that someone else
committed the crime. Because R.C.W. did not place
his identity at issue, the jury had two choices:
believe that R.C.W. committed the acts or believe
that no acts occurred. Because R.C.W.'s identity was
not at issue and the jury was left to decide only
whether the acts occurred, allowing the jury to
consider evidence to show a plan and thus R.C.W.'s
identity was not harmful. Id.

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"This is not a case in which evidence of
collateral bad acts was improperly admitted or in
which the circuit court erroneously allowed the jury
to consider that evidence to show bad character.
Instead, evidence of R.C.W.'s collateral sexual acts
was properly admitted and considered as substantive
evidence of his motive, and the circuit court
correctly prevented the jury from considering that
evidence for the sole purpose for which it is not
allowed –- bad character and action in conformity
therewith. Because evidence of R.C.W.'s collateral
sexual misconduct was properly considered by the
jury as substantive evidence of motive and because
the circuit court prevented the jury from
considering the evidence to prove bad character, the
circuit court's limiting instruction that allowed
the jury to also consider that evidence for
additional implausible and/or irrelevant purposes
was harmless. Therefore, I respectfully dissent."

R.C.W. I, __ So. 3d at __ (Windom, P.J., dissenting). We

granted the State's petition for a writ of certiorari in

R.C.W. II to determine whether an erroneous limiting

instruction as to otherwise properly admitted Rule 404(b)

collateral-bad-acts evidence is subject to a harmless-error

analysis.

The State argued to this Court that the collateral-acts

evidence of R.C.W.'s sexual misconduct involving T.W.'s half

sisters had been properly admitted to show motive. The State

conceded that the trial court's limiting instruction to the

jury was erroneous in that it allowed the jury to consider the

42
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collateral evidence of R.C.W.'s sexual abuse of his two other

daughters for purposes other than to show motive, i.e., for

the improper purposes of intent, opportunity, and plan.

However, the State further argued that the trial court's

limiting instruction, although erroneous, was harmless error

because, despite being overly broad, it did, in fact, properly

limit the jury's consideration of the collateral-sexual-

misconduct evidence to the permissible purpose of showing

motive and properly prevented the jury from considering the

evidence for the impermissible purpose of showing the

defendant's bad character. R.C.W. argued on appeal that the

decision of the Court of Criminal Appeals properly followed

this Court's decision in Ex parte Billups.

This Court agreed with the Court of Criminal Appeals'

conclusions that the collateral-bad-acts evidence was properly

admitted to show motive and that the trial court's limiting

instruction was erroneous because it permitted the jury to

consider the collateral-bad-acts evidence for the improper

purposes of showing opportunity, intent, or plan. However,

this Court in R.C.W. II went on to apply a harmless-error

analysis to the erroneous limiting instruction, stating:

43
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"Although not expressly stated in this Court's
main opinion in Ex parte Billups, Judge Welch's
dissent in Billups, with which this Court expressly
agreed, was based on two independent conclusions.
First and foremost, Judge Welch determined that a
substantial amount of prejudicial evidence relating
to the defendant's involvement in the Avanti East
killings had been erroneously admitted at trial. As
Judge Welch stated in Billups: 'The record in this
case presents a textbook example of the reason the
exclusionary rule prohibiting collateral-act
evidence was created; the extensive evidence of
collateral acts in [the defendant's] trial for the
murder of Lockett permitted this trial to become,
for all intents and purposes, a trial for murders of
the four Hispanic men as well.' 86 So. 3d at 1072
(emphasis added). Second, Judge Welch determined
that the overly broad limiting instruction that
permitted the jury to consider the collateral-acts
evidence for issues beyond those for which the
evidence was initially admitted resulted in obvious
confusion to the jury and probable prejudice that
only exacerbated the already prejudicial effect of
the erroneously admitted collateral-acts evidence.
Billups, supra. In other words, Judge Welch
determined that the already overwhelming amount of
prejudicial evidence admitted became even more
prejudicial when considered in context with the
overly broad limiting instruction, which allowed the
jury to consider the prejudicial evidence for many
purposes other than those for which it was
purportedly admitted. Given the sheer volume of
prejudicial evidence admitted in Billups, the overly
broad instruction given to the jury in that case
regarding the purposes for which that evidence could
be considered, including matters beyond those for
which the evidence was initially admitted, certainly
was prejudicial because the limiting instruction
gave the jury little guidance and no limitations as
to the proper purposes for which the jury could
consider the collateral-acts evidence. See Ex parte
Billups, 86 So. 3d at 1086 (stating that

44
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'[p]resenting the jury with such a far-reaching
"limiting" instruction carries with it the same
problems as providing the jury with no specific
purpose for considering the other crimes, wrongs, or
acts evidence' and that, '[b]y simply reciting the
complete "laundry list" of permissible theories
under Rule 404(b), the trial court's instruction in
this case gave the jury inadequate guidance'). Thus,
Ex parte Billups can be read as standing for the
proposition that an improper limiting instruction is
prejudicial if, in effect, it offers little guidance
or no limitations to the jury as to the proper
purpose or purposes for which the collateral-act
evidence could be considered.

"To be sure, the factual scenario present in Ex
parte Billups is extreme, given the voluminous
amount of prejudicial collateral-acts evidence
admitted at trial coupled with an overly broad
limiting instruction in which the trial court simply
listed each possible exception to Rule 404(b). For
that reason, the holding in Ex parte Billups is
limited to a similar factual scenario and does not
'create a per se rule requiring reversal every time
a circuit court's limiting instruction relating to
collateral bad acts includes purposes listed in Rule
404(b) for which the evidence was not admitted.'
R.C.W. [I], ___ So. 3d at ___ (Windom, P.J.,
dissenting).

"....

"... [U]nlike the situation in Ex parte Billups,
the potential prejudicial effect resulting in this
case from the admission of the evidence of R.C.W.'s
prior sexual misconduct with his other daughters,
coupled with the erroneous limiting instruction
given by the trial court, was muted because of the
limited amount of collateral-acts evidence admitted
at trial. Here, the collateral-acts evidence was
properly admissible to show motive and was limited
to the testimony of R.C.W.'s other two biological

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daughters, who testified to specific instances of
similar sexual misconduct as alleged in this case.
Furthermore, although the limiting instruction in
this case erroneously allowed the jury to consider
the collateral-acts evidence for issues not in
dispute, the limiting instruction properly
instructed the jury that it could consider the
collateral-acts evidence for the purpose of motive
and that it could not consider the evidence to show
R.C.W.'s bad character and that he acted in
conformity with that character. To the extent the
trial court's limiting instruction allowed the jury
to consider the collateral-acts evidence for issues
not in dispute, we agree with Presiding Judge
Windom's conclusion that '[b]ecause it was not
plausible for evidence of R.C.W.'s collateral bad
acts to establish his intent, opportunity, or plan,
any error in allowing the jury to consider the
evidence for those purposes was harmless.' R.C.W.
[I], ___ So. 3d at ___ (Windom, P.J., dissenting).
...

"....

"Instructing the jury that it could consider the
collateral-acts evidence for purposes for which it
ultimately would not actually consider it did not
prejudice R.C.W., because the trial court properly
instructed the jury that it could consider the
collateral-acts evidence for the proper purpose of
motive. The instruction here, although overly broad,
was not so broad that it essentially gave no
guidance or no limitation to the jury as to the
proper purpose for which the evidence could be
considered. See Ex parte Billups, supra. Because the
collateral-acts evidence was appropriately before
the jury for the purpose of proving motive, and
because the limiting instruction did not rise to the
level of prejudicial ambiguity found in Ex parte
Billups, any error arising from the trial court's
limiting instruction was harmless."

46
1121099

R.C.W. II, __ So. 3d at __ (final emphasis added).

Although the State has argued, and this Court has

concluded, that the collateral-acts evidence offered by

Cameron's testimony was admissible to show motive, the State

originally offered the testimony for the purposes of showing

motive, intent, and identity. The trial court admitted the

collateral-acts evidence for the sole purpose of establishing

Towles's intent. However, the trial court subsequently

instructed the jury that the evidence could be considered for

purposes of establishing motive, intent, and identity. The

Court of Criminal Appeals assumed for purposes of its decision

that Cameron's testimony was admissible to establish Towles's

motive and then determined pursuant to Ex parte Billups,

supra, that the trial court's limiting instruction was

erroneous because it permitted the jury to consider the

testimony for other improper purposes, i.e., identity and

intent. The State argues here that it was implausible that

the jury could have relied on Cameron's testimony to find the

specific intent required for a capital-murder conviction and

that, to the extent the trial court erroneously instructed the

47
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jury that it could consider Cameron's testimony for purposes

of establishing intent, that error was harmless. We disagree.

In R.C.W. I and R.C.W. II, R.C.W.'s general intent was

established by the acts of sexual abuse themselves perpetrated

upon his daughter. Therefore, the trial court's instruction

allowing the jury to consider the additional evidence of

intent was harmless. However, in this case intent was a

central issue to be determined because, in order to prove

capital murder, the State was required to prove that Towles

had the specific intent to kill Geontae, a child under 14

years of age. § 13A-5-40(a)(15), Ala. Code 1975. See Ziegler

v. State, 886 So. 2d 127, 140 (Ala. Crim. App. 2003)(holding

that "Alabama appellate courts have repeatedly held that, to

be convicted of [a] capital offense and sentenced to death, a

defendant must have had a particularized intent to kill").

Intent has been defined as "the ripened purpose to effect a

result." Fuller v. State, 269 Ala. 312, 336, 113 So. 2d 153,

175 (1959). Dean Charles Gamble has addressed the

admissibility of collateral-act evidence pursuant to the

intent exception to Rule 404(b) as follows:

"If the accused is charged with a crime that
requires a prerequisite intent, collateral crimes,

48
1121099

acts or misconduct are admissible to show that the
accused possessed the necessary intent. This rule is
based upon the theory that because the unintentional
doing of an act is abnormal and unusual, the more a
person does other acts similar to the act in
question, the greater the likelihood that the act in
question was not done inadvertently. Whether the
collateral act has a tendency to show that the
accused did possess the prerequisite state of mind
is, of course, one of relevancy vested largely in
the discretion of the trial court."

I Charles W. Gamble and Robert J. Goodwin, McElroy's Alabama

Evidence § 69.01(5)(6th ed. 2009) (footnotes omitted).

Further,

"'"'[i]n a prosecution for murder, evidence
of former acts of hostility between the
accused and the victim are admissible as
tending to show malice, intent, and ill
will on the part of the accused.' White v.
State, 587 So. 2d 1218, 1230 (Ala. Cr. App.
1990), affirmed, 587 So. 2d 1236 (Ala.
1991), cert. denied, 502 U.S. 1076, 112 S.
Ct. 979, 117 L.Ed. 2d 142 (1992)."
Childers v. State, 607 So. 2d 350, 352
(Ala. Cr. App. 1992). "Acts of hostility,
cruelty and abuse by the accused toward his
homicide victim may be proved by the State
for the purpose of showing motive and
intent.... This is 'another of the primary
exceptions to the general rule excluding
evidence of other crimes.'" Phelps v.
State, 435 So. 2d 158, 163 (Ala. Cr. App.
1983). See also Baker v. State, 441 So. 2d
1061, 1062 (Ala. Cr. App. 1983).'

"Hunt v. State, 659 So. 2d 933, 939 (Ala. Crim. App.
1994). See Harris v. State, 489 So. 2d 688 (Ala.
Crim. App. 1986) (prior acts of abuse toward child

49
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victim were admissible to show motive and intent to
murder). See also Harvey v. State, 579 So. 2d 22, 26
(Ala. Crim. App. 1990). 'Former acts of hostility or
cruelty by the accused upon the victim are very
commonly the basis for the prosecution's proof that
the accused had a motive to commit the charged
homicide.' 1 Charles W. Gamble, McElroy's Alabama
Evidence § 45.01(8) (5th ed. 1996) (footnote
omitted), and cases cited therein."

Burgess v. State, 962 So. 2d 272, 282 (Ala. Crim. App. 2005).

In this case the prior bad acts of assault and physical

abuse were not perpetrated by Towles upon the victim Geontae.

Rather, the prior assaults and abuse were perpetrated upon

Geontae's older brother Cameron approximately three years

before Geontae's murder. We cannot say that Cameron's

testimony relating to the physical assaults he suffered at the

hands of Towles approximately three years before Geontae's

murder was relevant to show that Towles intended to kill

Geontae. Further, where the jury was faced with deciding

whether Towles intended to murder Geontae or to assault him

for disciplinary issues at school, the admission of the

collateral assaults perpetrated by Towles upon Cameron were

highly prejudicial. The probative value, if any, of the

testimony concerning the collateral assaults upon one son

simply does not outweigh the undue prejudice to Towles in his

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prosecution for the capital murder of his other son. See

generally Ex parte Jackson, supra.

Accordingly the trial court's admission of the

collateral-acts testimony to show intent and its limiting

instruction to the jury that the jury could consider the

testimony for purposes of establishing intent constitutes

plain error because it "'"seriously affect[s] the fairness,

integrity or public reputation of judicial proceedings."'" Ex

parte Brown, 11 So. 3d at 935–36 (quoting Hall v. State, 820

So. 2d at 121).

Conclusion

For the reasons set forth above, we affirm the judgment of

the Court of Criminal Appeals.

AFFIRMED.

Stuart, Parker, Main, and Bryan, JJ., concur.

Murdock and Shaw, JJ., concur in the result.

Moore, C.J., and Wise, J.,* recuse themselves.

*Justice Wise was a member of the Court of Criminal
Appeals when that court considered this case.

51