(concurring in part, dissenting in part) — I concur with the majority that Cal Brown’s conviction should be affirmed. However, I would hold the trial court erred in admitting the testimony of Ms. Schnell, the victim in a criminal encounter with Brown in California. Further, I would hold the admission of that evidence was reversible error as to the sentencing phase of Defendant’s trial. Consequently, although I concur in affirming Brown’s conviction, I would remand for resentencing.
I. Guilt Phase
In this case, the trial court permitted the California victim, Ms. Schnell, to testify, over objections by defense counsel, regarding the Defendant’s violent behavior toward her during the days following the murder of Ms. Washa. Ms. Schnell testified how Brown restrained her with handcuffs and other devices, sexually assaulted her, forced her to write a check to him for $4,000, threatened her with a knife, and slit her throat.
The trial court ruled that Ms. Schnell’s testimony was admissible under two exceptions to Evidence Rule (ER) 404, the res gestae exception and the common scheme or plan exception. The court stated the evidence "was relevant to material issues . . . relating to premeditation, intent, and the four [statutory] aggravating factors” and that the "probative value of the testimony . . . substantially outweighed its prejudicial effect.” Majority at 573 (referring to the aggravating factors found by the jury pursuant to RCW 10.95.020). The majority agrees.
In my view, the majority and the trial court were wrong in concluding that under ER 404(b) it was proper to admit Ms. Schnell’s testimony during the guilt phase of Brown’s trial. First, the Schnell testimony is not res gestae evidence. The trial court erred in admitting her testimony under that legal exception to ER 404. Second, ER 404 *634requires a trial court to balance the probative value against the prejudicial effect of evidence of other crimes and bad "acts” committed by the defendant. The trial court here correctly acknowledged the very prejudicial nature of the Schnell testimony. The court failed to recognize, however, that ER 404(b) evidence is generally inadmissible and the burden is on the State to establish that evidence of other offenses is not only relevant but "necessary to prove an essential ingredient of the crime charged.” (Emphasis added.) State v. Goebel, 40 Wn.2d 18, 21, 240 P.2d 251 (1952), overruled on other grounds by State v. Lough, 125 Wn.2d 847, 860, 889 P.2d 487 (1995); State v. Saltarelli, 98 Wn.2d 358, 362, 655 P.2d 697 (1982) (quoting Goebel, 40 Wn.2d at 21); State v. Brown, 113 Wn.2d 520, 782 P.2d 1013, 80 A.L.R.4th 989 (1989); State v. Lane, 125 Wn.2d 825, 831-32, 889 P.2d 929 (1995) (citing Saltarelli, 98 Wn.2d 358 and Goebel, 40 Wn.2d 18). Because the need for the testimony to prove an essential ingredient of the crimes charged did not overcome the extreme prejudice of that testimony, the admission of Schnell’s testimony was error.
A. Res Gestae
Evidence of other misconduct may be admissible under the res gestae exception "[t]o complete the story of the crime on trial by placing it in the context of nearby and nearly contemporaneous happenings.” 1 McCormick on Evidence § 190 at 799 (John W. Strong ed., 4th ed. 1992). See State v. Tharp, 96 Wn.2d 591, 594, 637 P.2d 961 (1981) (other misconduct admissible "in order that [the jury] have the entire story of what transpired on that particular evening”). In this case, the crimes against Ms. Washa were completed with her death, well before the Defendant’s conduct with Ms. Schnell occurred. Thus, evidence that Defendant raped and cut Ms. Schnell’s throat two or three days after the completion of his crimes "on trial” does not constitute res gestae evidence.
In oral argument before this Court the State conceded the same.
*635Talmadge, J.: You would not be contending that if common plan or scheme were not part of this case that all the details of the crimes that were committed against Ms. Schnell would be at all relevant in terms of res gestae as an exception?
Ms. Pahmeier: That’s true.
Madsen, J.: Are you conceding that the evidence of the rape and the slashing of the throat would not be relevant if it were offered only for res gestae purposes?
Ms. Pahmeier: Yes, I would say it was definitely admitted under the ER 404(b) common scheme or plan.
Ms. Pahmeier: I’m not sure that the evidence of the incidents that took place then in California when he got there would come in except under the court’s ....
Alexander, J.: So it comes in under common scheme or plan or it doesn’t come in at all?
Ms. Pahmeier: That’s correct.
Tape of Oral Argument, side 7: 539-70.
Ms. Schnell’s testimony does not meet the definition of res gestae evidence and its admission under that exception was erroneous.
B. Necessity of Evidence
To constitute evidence of a common scheme or plan the prior misconduct must be an integral part of a larger or "overarching” scheme or plan. State v. Lough, 125 Wn.2d 847, 889 P.2d 487 (1995). Alternatively, the evidence may demonstrate a commonly used scheme or plan. See id. at 854-55. The State argues here that Schnell’s evidence was admissible under the common scheme or plan exception because his crimes against Ms. Washa were part of his overarching plan to rape, rob, and assault Ms. Schnell. Assuming that the evidence was part of a common scheme or plan, it should, nevertheless, have been excluded *636because it was not necessary to prove an essential element of the crime charged.
The State says the Schnell evidence was necessary to rebut Defendant’s claim that Ms. Washa’s murder was an accident or an act of panic, not premeditated murder, and Defendant’s claim that the sexual intercourse with Ms. Washa was consensual.
Initially, I find the State’s justification for the Schnell evidence disingenuous, considering Defendant never testified and, in fact, offered no defense at all. Most of the evidence against Defendant came from his confession, which Defendant attempted to keep out of evidence. The confession was offered by the State in its case in chief as substantive evidence. Thus, it is the State’s own evidence, contained in the confession, which the State is attempting to discredit with Schnell’s testimony. The State should not be allowed to offer confession evidence, over defense objection, and then claim that ER 404 evidence is necessary to rebut Defendant’s claim that he lacked premeditation to murder or that sex was consensual. This is particularly true where Defendant has not testified or offered any evidence regarding premeditation, motive, or intent. See State v. Lavaris, 106 Wn.2d 340, 346, 721 P.2d 515 (1986) (State may not call witness for primary purpose of impeaching him with otherwise inadmissible testimony).
More importantly, the State’s assertions regarding the need for Schnell’s testimony are simply not borne out by the evidence. Rather than casting doubt on premeditation, Defendant’s confession establishes it. In his confession, Defendant stated:
I realized if I left her there, she could just bang and clang and crunch and scream and be out very quickly. Otherwise, I would have just left her there and that’s when I went to the back of the truck and I. . . killed her.
Ex. 89, tape 2, side 1, at 630-50. Moreover, Defendant’s discussion of being panicked was in relation to moving the car after he had killed her. "I forgot that trunks have like *637holes and things like that. So I panicked and left that place and drove around . . . .” Ex. 89, tape 1, side 2 at 50-60. Defendant said he killed Ms. Washa because she was a stranger and it made sense for him to kill her. Ex. 89, tape 1, side 1 at 625-35. Clearly, Ms. Schnell’s testimony was not necessary on the issue of premeditation.
Nor was the evidence necessary on the issue of consent. He stated in his confession that during intercourse he noticed she was looking at the door and thinking of escape. In response, Brown stated he decided "to have a little control . . . make her a little more scared of me.” Ex. 89, tape 2, side 1. Further, the physical evidence overwhelmingly proved that intercourse was not consensual. See Majority at 544.
Finally, it is difficult to see how Defendant’s conduct with Ms. Schnell had any bearing on his premeditation in the Washa murder or the consensual nature of his sexual contact with Ms. Washa. Defendant was not charged with premeditation in the Schnell crime, nor was he charged or convicted of sexual assault on Ms. Schnell.
Considering the overwhelmingly strong case for the State based on the physical evidence and Defendant’s confession, it is clear that the real reason the State offered Schnell’s testimony was to demonstrate the Defendant’s propensity to rape, rob, and slash women’s throats. The State candidly stated the "exclusion of Schnell’s testimony would not have changed the outcome of this case.” Br. of Resp’t at 109. The State thus concedes the evidence was not necessary.
In the present case, the exclusion of Schnell’s testimony would not have changed the outcome of this case. The remaining evidence, including Brown’s confession, is overwhelming. The heinous acts the defendant committed upon Washa were far more compelling than the streamlined testimony from Schnell concerning what the defendant did to her.
Br. of Resp’t at 109.
*638C. Prejudice
The Schnell evidence also fails the second part of the admissibility test; i.e., the probative value of the evidence must outweigh its prejudicial effect. Even assuming Schnell’s testimony was admissible under the common scheme or plan exception to ER 404, her testimony was, at best, cumulative and of marginal probative value. See De-Vore v. United States, 368 F.2d 396, 398 (9th Cir. 1966) (evidence of other bad acts deemed improperly admitted because, in view of the cumulative nature of the evidence, the "prejudice to appellants was not balanced by any substantial gain to the government’s case”). More importantly, the Schnell evidence was obviously "dragged in” for its prejudicial effect and the emotional response it would evoke. Carson v. Fine, 123 Wn.2d 206, 224-25, 867 P.2d 610 (1994). The prosecution was adding frosting to the cake.
D. Harmless Error
The State’s case, including the Defendant’s confession and the physical evidence, was overwhelming. Thus, while admission of Schnell’s testimony was error, it was harmless as to the guilt phase of this trial. It was not, however, harmless as to the penalty phase.
II. Penalty Phase
Unlike the guilt phase, admission of the Schnell testimony is reversible error as to the penalty phase of this capital case. The majority and the trial court fail to recognize that the balancing of the potentially undue prejudicial effect of Ms. Sehnell’s testimony against its probative value cannot be limited only to issues relevant to the guilt phase of this trial. A jury in a capital crime trial deliberates on an entirely separate question during the sentencing phase. Therefore, in deciding whether to admit evidence in the guilt phase of a capital trial, the trial court must weigh the effect of such potentially prejudicial evidence against the probative value in the sentencing *639phase of the trial. Because any probative value of Ms. Schnell’s testimony was far outweighed by its prejudicial impact during the penalty phase, admission of such testimony during the guilt phase of the trial was an abuse of discretion.
The decision to admit evidence of other crimes, wrongs, or acts "lies largely within the sound discretion of the trial court” and "will not be reversed on appeal absent a showing of abuse of discretion.” State v. Laureano, 101 Wn.2d 745, 764, 682 P.2d 889 (1984). However, a review of the evidentiary decision at issue here is also influenced by the fact that the evidence that was admitted had the potential to affect the imposition of the death penalty, which this Court recognizes "qualitatively differs from all other punishments.” State v. Lord, 117 Wn.2d 829, 888, 822 P.2d 177 (1991), cert. denied, 506 U.S. 856 (1992). Because of this qualitative difference, review of a claimed error associated with the sentencing phase of a capital case must receive a more careful review of the record to assure that "there [is] reliability in the determination that death is the appropriate punishment.” Id. See also Mak v. Blodgett, 754 F. Supp. 1490, 1493-94 (W.D. Wash. 1991) ("The Constitution requires the most careful scrutiny of every case in which a person has been sentenced to death.”), aff’d, 970 F.2d 614 (9th Cir. 1992), cert. denied, 507 U.S. 951 (1993).
A careful review of the record of this case indicates that the State properly notified the Defendant of the State’s intent to seek the death penalty, and that each member of the jury was questioned at voir dire about his or her views with respect to the death penalty. It is, therefore, beyond debate that the parties, as well as the trial judge, were well aware that a special sentencing proceeding, as provided by RCW 10.95.020-.070, would be required if the jury found Brown guilty as charged of aggravated first-degree murder. We must also assume that the trial judge was aware that it "is well settled that all evidence which is admissible in the guilt phase [of a capital case] is also *640admissible in the penalty phase.” In re Lord, 123 Wn.2d 296, 322, 868 P.2d 835, cert. denied, 513 U.S. 849 (1994) (citing State v. Bartholomew, 101 Wn.2d 631, 643, 683 P.2d 1079 (1984) and State v. Mak, 105 Wn.2d 692, 720-21, 718 P.2d 407, cert. denied, 479 U.S. 995 (1986), sentence vacated on writ of habeas corpus sub nom. Mak v. Blodgett, 754 F. Supp. 1490 (W.D. Wash 1991), aff’d, 970 F.2d 614 (9th Cir. 1992), cert. denied, 507 U.S. 951 (1993)).
During the penalty phase, the essential question that the jury must answer is whether it is "convinced beyond a reasonable doubt that there are not sufficient mitigating circumstances to merit leniency.” RCW 10.95.060(4). In order to assure that the special sentencing proceeding in a capital case comports with "state and federal constitutional standards,” the Court has specifically held that the province of the jury in such proceedings "must be limited to mitigating evidence . . . and mitigating factors only.” Bartholomew, 101 Wn.2d at 642 (emphasis added). As we stated in Bartholomew, "in most cases the prosecution may open only with the defendant’s criminal record and evidence which would have been admissible at the guilt phase of the trial.” Bartholomew, 101 Wn.2d at 643. Therefore, the State acted properly in this case when it sought to admit evidence that Brown has a criminal record of prior convictions. However, because the "introduction of a certified copy of the judgment and sentence is the preferred way to introduce a prior conviction when it is admissible,” Ms. Schnell’s detailed testimony would not have been admissible at the penalty phase unless it would have been admissible at the guilt phase, or offered in specific rebuttal to a mitigating factor raised by the Defendant. State v. Gentry, 125 Wn.2d 570, 638, 888 P.2d 1105, cert. denied, 516 U.S. 843 (1995). As explained above, the evidence was not admissible during the guilt phase.
Looking to the penalty phase, it is indisputable that Ms. Schnell’s testimony is probative on the question of whether leniency is warranted. However, one of the reasons, if not the primary reason, such evidence is probative is because of its highly prejudicial nature. It is precisely for this reason that it is generally a violation of the Defendant’s due process rights for the jury to even
*641consider such evidence, unless it is relevant to rebut a mitigating factor that has been first raised by the Defendant. Lord, 117 Wn.2d at 890 ("[W]hen the defendant presents evidence of mitigating circumstances, the prosecution is not restricted to the record of convictions. The State is entitled to . . . introduce relevant evidence to rebut defendant’s evidence so that the jury receives a balanced and complete picture.”) This is why this Court has ruled that although the State may, in the opening of the special sentencing proceeding, provide the jury with certified copies of judgments and sentences concerning defendant’s prior convictions, it may not present additional evidence relating to those crimes unless such evidence relates to mitigating evidence or factors raised by the defendant. See Bartholomew, 101 Wn.2d at 642.
With respect to the question of whether leniency is warranted, Ms. Schnell’s account of Brown’s violent acts constituting sexual assault and rape, offenses Brown was neither charged with nor convicted of, posed a significant danger of being unfairly prejudicial. See, e.g., State v. Bowen, 48 Wn. App. 187, 738 P.2d 316 (1987); State v. Ramirez, 46 Wn. App. 223, 730 P.2d 98 (1986); State v. Harris, 36 Wn. App. 746, 677 P.2d 202 (1984) (admission of such evidence was reversed because of prejudicial effect on a jury’s deliberation of a defendant’s guilt or innocence). The trial court should have considered the potential prejudice in the penalty phase when deciding in the guilt phase whether to admit the evidence.
The Supreme Court of New Jersey expressed similar concerns about the impact of guilt phase evidence on the jury’s penalty determination in a capital case. State v. Erazo, 126 N.J. 112, 594 A.2d 232 (1991). The court said "[w]hen the same jury hears both phases of such a case, evidence admitted on the guilt phase may sometimes taint the penalty phase. With the stakes so high, the possibility of prejudice on the penalty phase persists as a cause for continuing concern.” Id. at 242.
Upon properly considering the prejudicial impact of the *642evidence in the penalty phase, the conclusion is unavoidable that the evidence was so overwhelmingly prejudicial to the jury’s sentencing determination that it should not have been admitted. While admission may have been harmless as to the guilt phase, the same cannot be said when the jury’s subjective determination of life or death was at issue.
In sum, the nature of the ER 404(b) evidence in this case was so inflammatory that the trial court’s failure to balance the probative value of the evidence against the prejudicial impact as it relates to the penalty phase inquiry constitutes an abuse of discretion, for it cannot be said that there is reliability in the determination that death is the appropriate punishment. Lord, 117 Wn.2d at 888. ("Because the death penalty qualitatively differs from all other punishments, there must be reliability in the determination that death is the appropriate punishment.”)
To be assured of such reliability, I would remand for a new sentencing proceeding where Ms. Schnell’s testimony is not presented to a new jury impaneled to determine Defendant’s sentence.
Alexander and Sanders, JJ., concur with Madsen, J.
Reconsideration denied September 23, 1997.