dissenting. I would reverse and remand for a new trial conviction for attempted capital murder because the trial court erred in allowing evidence of Jones’s prior offense to be admitted during the guilt phase of his jury trial. His trial was rendered grossly unfair by the admission of this minimally relevant at best, but highly prejudicial evidence.
The facts underlying the conviction are largely not in dispute. Jones was serving time at Calico Rock for second-degree murder when he attacked members of the corrections staff with a table leg, resulting in four convictions, including one for attempted capital murder. The conduct underlying that charge involved Jones striking one of the corrections officers, William Waters, once in the head and once in the shoulder with the table leg. Despite the severity of the attack, the State apparently believes, and I agree, that the requisite culpable mental state to commit attempted capital murder was not readily apparent from the circumstances. The State therefore sought to prove this intent through the introduction of details of Jones’s prior second-degree murder conviction, which involved his causing the death of an acquaintance by striking him in the head with a baseball bat. When the State sought to introduce this evidence, Jones preserved both Ark. R. Evid. 404(b) and 403 arguments for appeal.
It is axiomatic that evidence of prior misconduct is not admissible to show that the person on trial is a bad person and is therefore more likely to have committed the act in question. The presumption of innocence does not allow for the proposition “he did it before, therefore he must have done it again,” or in this case, tried to do it again.
Rule 404(b) states:
Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show that he acted 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.
Ark. R. Evid. 404(b). The test for establishing motive, intent, or plan as a Rule 404(b) exception is whether the evidence of the other act has independent relevance. Haire v. State, 340 Ark. 11, 8 S.W.3d 468 (2000). Evidence is indisputably relevant if it proves a material point and is not introduced solely to prove that the defendant is a bad person. Id. The decision to admit evidence under a Rule 404(b) exception is discretionary with the trial court. Id.
At first blush, the probative value of the prior murder conviction appears to be substantial. The table leg was similar in size and shape to a baseball bat, and in both cases, Jones aimed at the victims’ head. However, the probative value of the prior offense cannot exist in a vacuum; it must relate to a specific element of the charged crime. In this case it can relate only to the intent element, since very different results and different crimes ensued in the two incidents. Otherwise, the prior conviction would clearly be characterized as an attempt to inform the jury of Jones’s propensity to engage in the same kind of conduct.
The requisite intent element for the applicable capital murder offense is that the perpetrator act with premeditated and deliberated purpose to cause death. Ark. Code Ann. § 5-10-101 (a) (3) (Repl. 1997) states in pertinent part:
(a) A person commits capital murder if:
(3) With the premeditated and deliberated purpose of causing the death of any . . . jailer, prison official. . . when such person is acting in the line of duty, he causes the death of any person.
However, Jones’s prior conviction was for second-degree murder. The intent element of second-degree murder requires that the perpetrator act knowingly in causing death under conditions manifesting extreme indifference to human life or purposely with regard to causing serious physical injury.
In pertinent part, Ark. Code Ann. § 5-10-103 (Repl. 1997) states:
(a) A person commits murder in the second degree if:
(1) He knowingly causes the death of another person under circumstances manifesting extreme indifference to the value of human life; or
(2) With the purpose of causing serious physical injury to another person, he causes the death of any person.
Accordingly, the only logical inference that can be drawn regarding Jones’s intent was that he was acting “knowingly” or “purposely” to cause serious physical injury. Knowingly is defined by Ark. Code Ann. § 5-2-202(2) (Repl. 1997) as: “A person acts knowingly with respect to his conduct or the attendant circumstances when he is aware that his conduct is of that nature or that such circumstances exist. A person acts knowingly with respect to a result of his conduct when he is aware that it is practically certain that his conduct will cause such a result.” This is clearly insufficient to satisfy the culpable mental state of the applicable portion of our capital murder statute.
As far as the purposeful intent in our second-degree murder statute, it is also insufficient to satisfy the culpable mental state for the applicable portion of our capital murder statute. While it is true that the intent element for both capital murder and second-degree murder may be satisfied by purposeful conduct, defined by Ark. Code Ann. § 5-2-202(1) as: “A person acts purposely with respect to his conduct or a result thereof when it is his conscious object to engage in conduct of that nature or to cause such a result,” the object of the purposeful conduct is markedly different. As noted above, the purposeful conduct in capital murder is to cause the death of a prison official or jailer, whereas the purposeful conduct in second-degree murder is to cause “serious physical injury.” In short, evidence of prior conduct where Jones acted knowingly or purposely with respect to causing serious physical injury cannot constitute proof that similar conduct is an attempt to purposefully cause the death of a person. Where the evidence of a prior bad act is not clearly probative of a substantial element of the charged offense, it is error to admit it. See State v. Robtoy, 653 P.2d 284 (Wash. 1982).
With regard to relevance, at trial, the State argued that the prior conviction was probative primarily of Jones’s “motive.” On appeal, the State now contends that the prior conviction established that Jones “understood what he was doing and the potential consequences of his conduct,” and was relevant due to the “similarity of the methods employed,” and Jones’s “first-hand knowledge” of the damage that could result from such conduct. The majority apparently agrees, at least in part, with the State’s argument on appeal and opines that the evidence provided independent relevance that Jones “knew” a club could cause death and “planned” to use a similar weapon to kill Waters. The majority cites to McGehee v. State, supra, as authority for this proposition.
However, there is a big problem with holding that the prior conviction is admissible to show Jones’s knowledge. First, the prior crimes and bad acts admitted in McGehee were found by the trial court to be part of the circumstances leading up to and explaining the crime for which McGehee was being tried. The supreme court agreed and stated that “our court has repeatedly held that all the circumstances surrounding a particular crime may be shown, even if the circumstances would constitute a separate criminal act or acts, when the criminal acts are intermingled and contemporaneous with one another.” 338 Ark. at 169, 992 S.W.2d at 120. Clearly Jones’s prior conviction cannot, by any stretch of the imagination, fall within this category of “knowledge,” and MeGehee does not provide any authority whatsoever for its admission during his trial.
Secondly, the “knowledge” referred to in Rule 404(b) is not general facts and information, but rather “guilty knowledge.” In Alford v. State, 223 Ark. 330, 266 S.W.2d 804 (1954), an opinion that has been cited more than fifty times for its discussion of prior bad acts evidence, Justice George Rose Smith stated:
Perhaps the most frequent resort to evidence of recent similar offenses occurs in the cases involving guilty knowledge. In such cases good faith would be a defense to the charge; the vital issue is whether the defendant knew his conduct to be wrongful. For example, it is not a crime to pass a forged check in the belief that it is genuine, but the same conduct is criminal when done with knowledge that the instrument is bogus. Since it is highly improbable that an innocent man would repeatedly come into possession of forged checks, proof of recent similar offenses bears directly on the issue of guilty knowledge. In this category fall cases involving forgery, counterfeiting, false pretenses, knowledge that an establishment is a gambling house, and many other situations.
(Citations omitted.) Testimony concerning Jones’s prior conviction clearly does not fall within this category of admissible prior bad act evidence. Moreover, it is commonly known by any adult that a blow to the head can kill, and therefore, Jones’s prior conviction falls squarely within the class of prior acts that ought not be admissible in a fair trial; a prior rape is not admissible to show a defendant “knows” how to rape, and a prior burglary is not admissible to show that a defendant “knows” how to commit burglary. See Teresa S. Ozias, Comment, Bad Acts in Oregon: OEC 404(3), 25 Willamette L. Rev. 829 (1989).
The evidence in this case also does not fall within the “modus operandi” exception. Prior crimes involving similar methods or modus operandi are admissible as an exception to Rule 404(b) only where the identity of the perpetrator is at issue and the method itself is unique. See, e.g., Tarkington v. State, 250 Ark. 972, 469 S.W.2d 93 (1971). As to Jones’s “plan,” to the extent he “planned” an attack, he surely carried it out; whether he intended a murder is the question. The prior conviction can again be said only to impermis-sibly communicate to the jury that “he did it before; therefore he must have intended to do it again,” without having relevance to any element of the crime charged.
Furthermore, assuming, arguendo, that the evidence is relevant, and passes 404(b) muster, it can only be admissible if the evidence passes the balancing test in Ark. R. Evid. 403, which provides that relevant evidence may be excluded if the probative value is substantially outweighed by, among other things, the danger of unfair prejudice. The Advisory Committee Note to Rule 403 explains that “unfair prejudice” within the context of the rule means “an undue tendency to suggest a decision on an improper basis, commonly, though not necessarily, an emotional one.” Obviously, evidence concerning Jones’s conviction for a prior murder is extremely prejudicial, particularly where Jones has once again taken up a similar weapon to commit a battery. I submit that the prejudice clearly outweighs whatever probative value the prior conviction may have had in this case. In sum, the only element of the crime that it could possibly pertain to is intent, and it should not even survive a careful 404(b) analysis if its purpose was to show “knowledge,” similar method, or plan, as it clearly had no relevance regarding motive. Moreover, even if Jones’s prior conviction had some probative value to prove motive, which I certainly do not concede, there was ample evidence of Jones’s motive in the testimony about his anger at being disciplined and his desire to secure a transfer away from Calico Rock. The existence of this other evidence affords the probative value of the conviction substantially less weight, and therefore does not allow it to survive a 403(b) balancing. See Golden v. State, 10 Ark. App. 362, 664 S.W.2d 496 (1984).
The State’s real message to the jury was “He did it before, so he tried to do it again.” The jurors were not confused; they receive this kind of message loud and clear. Because this evidence should not have been admitted, no instruction could cure this prejudice. See Alford v. State, supra. As Justice George Rose Smith stated in Alford, “[T]he issue goes to the very heart of fairness and justice in criminal trials; we cannot conscientiously sustain a verdict that may have been influenced by such prejudicial testimony.” I would reverse and remand for a new trial of the attempted capital murder charge.
Hart, J., joins.