Although I concur with the result reached by the majority, I disagree with its rejection of the sound reasoning in State v. Binkin,79 Wn. App. 284, 902 P.2d 673 (1995). I conclude that when evidence of prior bad acts is offered under an exception to ER 404(b), and when an accused challenges the existence of the prior bad acts (as opposed to the purpose for which the evidence is sought to be introduced, or the relevancy, or the probative value versus the prejudicial effect), then an accused is entitled to an evidentiary hearing. It is, however, incumbent upon the accused to make an offer of proof to the court outlining the basis of his challenge, which may include *Page 296 what evidence will be introduced, what questions will be asked, or what testimony will be offered to challenged the State's proffered evidence. Kilgore failed to make such an offer and I would therefore concur with the majority and affirm his conviction.
Evidence of other bad acts is generally inadmissible. ER 404(b). Exclusion is grounded on the principle that the accused must be tried for the crimes charged, not for uncharged crimes. State v. Emmanuel,42 Wn.2d 1, 13, 253 P.2d 386 (1953). A fair trial is denied when the jury is permitted to conclude the accused deserves punishment because of other bad acts. Instead, the jury must determine whether the accused committed the crime charged.
ER 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.
To admit evidence of other wrongs, the trial court must (1) find by a preponderance of the evidence that the misconduct occurred, (2) identify the purpose for which the evidence is sought to be introduced, (3) determine whether the evidence is relevant to prove the element of the crime charged, and (4) weigh probative value against the prejudicial effect. ER 404(b); State v. Lough, 125 Wn.2d 847, 853, 889 P.2d 487 (1995).
I agree with the majority that an independent evidentiary hearing would be unnecessary for the last three elements (the purpose of the evidence, the relevancy of the evidence, and the weight of the probative value of the evidence versus its prejudicial effect). However, when the existence of the bad act is challenged, the accused is entitled to a hearing. There, the State must establish by a preponderance of the evidence that the prior bad act occurred. State v. Benn, 120 Wn.2d 631,653, 845 P.2d 289 (1993); Binkin, 79 Wn. App. at 289. *Page 297
The majority's concern that such hearings would degenerate into court supervised discovery proceedings for defendants, and the majority's contention that the failure to hold such evidentiary hearings would be harmless error regardless, is unpersuasive. At issue is not direct evidence of the crime itself, but of highly prejudicial and often emotionally inflammatory acts that may amount to uncharged crimes. If the State cannot prove the existence of prior bad acts, then the evidence should not be admitted.
I would not, however, require the trial court to conduct an evidentiary hearing without some showing by the defendant. We review for substantial evidence in the record to uphold the trial court's ruling.Benn, 120 Wn.2d at 653. Here, Mark Kilgore objected to the admission of evidence of his prior bad acts. He requested an evidentiary hearing so that he could present testimony rebutting the allegations. The trial court permitted the prosecutor to make an offer of proof. The prosecutor's detailed offer of proof encapsulated the testimony of each of the proposed witnesses concerning each incident of molestation. When given the opportunity, Kilgore did not make an offer of proof as to what evidence he would present in rebuttal, or what questions he would ask, or what testimony he would offer at the evidentiary hearing. Given Kilgore's total failure to provide the court with any basis upon which he would challenge the State's evidence, the trial court did not err in denying the evidentiary hearing.
Therefore, I concur with the majority in result.
*Page 298JOHNSON and SANDERS, JJ., concur with CHAMBERS, J.