dissenting. I respectfully dissent. This
case should be affirmed because the evidence of prior crimes and bad acts of Billy Dale Green are admissible under Ark. R. Evid. 404(b) to show appellant’s motive and intent to commit these heinous crimes. Although control is not specifically listed as evidence that may be independently relevant and admissible under Rule 404(b), motive and intent are specifically listed exceptions under the rule. Thus, appellant’s control over his family is relevant to show motive and intent to commit these horrible acts that resulted in the death of an entire family, including two young children.
Appellant moved for a mistrial. A mistrial is a drastic remedy to be used only when an error is so prejudicial that justice cannot be served by continuing the trial and when the prejudicial statement cannot be cured by an instruction. Jones v. State, 340 Ark. 390, 10 S.W.3d 449 (2000). The trial court has the sound discretion to decide whether to grant a mistrial, and this decision will not be overturned absent a showing of abuse or upon manifest prejudice to the complaining party. Id. Additionally, even if the remark is improper, the trial court may deny the mistrial motion and cure any prejudice by issuing a jury admonishment to disregard the remark. Dandridge v. State, 292 Ark. 40, 727 S.W.2d 851 (1987).
Arkansas Rule of Evidence 404 provides, in part:
(a) Character Evidence Generally. Evidence of a person’s character or a trait of his character is not admissible for the purpose of proving that he acted in conformity therewith on a particular occasion, except:
(1) Character of accused. Evidence of a pertinent trait of his character offered by an accused, or by prosecution to rebut the same;
(b) Other Crimes, Wrongs, or Acts. 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.
Id. Rule 404(b) “permits introduction of testimony of other criminal activity if it is independently relevant to the main issue, that is, relevant in the sense of tending to prove some material point rather than merely to prove that the defendant is a criminal.” Spencer v. State, 348 Ark. 230, 236, 72 S.W.3d 461, 464 (2002). The State is entitled to produce evidence showing circumstances which explain the act, show a motive for the killing, or illustrate the accused’s state of mind. Barntt v. State, 354 Ark. 187, 119 S.W.3d 485 (2003). In dealing with issues relating to the admission of evidence pursuant to Rule 404(b), a trial court’s ruling is entitled to great weight, and this court will not reverse absent an abuse of discretion. Barnes v. State, 346 Ark. 91, 55 S.W.3d 271 (2001). Further, this court has held that the list of exceptions to inadmissibility in Rule 404(b) is not an exclusive list, but instead, it is representative of the types of circumstances under which evidence of other crimes, wrongs, or acts would be relevant and admissible. Diffee v. State, 319 Ark. 669, 894 S.W.2d 564 (1995). Therefore, I would hold that the circuit court did not abuse its discretion by admitting the testimony concerning appellant’s control over his family.
Testimony of Green Family
Appellant argues that the circuit court erred by allowing the testimony of Joshua, Amber, Chad, and Mary Green regarding appellant’s control and abusive treatment of his family. This argument has no merit. The testimony of appellant’s children and wife is admissible to prove that he had control over his family, not to prove that appellant committed the crime. The testimony proves that appellant had the intent to use his family members to commit these crimes because they were too scared of appellant to say no and walk away. The testimony also showed that the fear appellant instilled in his family was so great that they were afraid to come forward with any information until appellant was behind bars. Appellant’s control over his family is relevant to show his intent to commit these murders. His control goes to the issue of premeditation and deliberation. Moreover, these statements were not more prejudicial than probative. The trial court did not abuse its discretion by allowing this testimony under Rule 404(b), and appellant’s argument regarding the issue of control is meritless.
Regarding the testimony of Mary Green concerning her safety after appellant’s arrest, the trial court ruled that what “basically happened is that you impeached her and he rehabilitated her and she went on and on and on.” The court overruled the objection and offered a limiting instruction to advise the jury to disregard her redirect testimony. However, appellant chose not to have the limiting instruction given. As such, even if the remark were improper, the trial court may deny the mistrial motion and cure any prejudice by issuing a jury admonishment to disregard the remark. Dandridge, 292 Ark. 40, 727 S.W.2d 851. Here, appellant declined a jury admonishment or a limiting instruction even though the trial court offered one. Appellant cannot prove any prejudice. Therefore, the trial court did not abuse its discretion.
Testimony of Kathy Elliott Hart
Appellant also claims that the testimony of Kathy Elliott Hart was improperly allowed. Kathy testified that she was afraid for her brother to be around the Greens because her nephew had died mysteriously after he had stolen some of appellant’s marijuana plants. Appellant immediately objected to this statement and moved for a mistrial. The trial court overruled the mistrial motion, but offered a limiting instruction. Appellant never clearly accepted the offer, and a limiting instruction was not given. Upon reviewing this testimony and appellant’s objections to it, it is clear that the circuit court did not abuse its discretion by denying the motion for mistrial. The statements fell within Rule 404(b), as they established motive on the part of appellant. The motive was anger for the theft of the marijuana plants. Therefore, appellant’s argument is merit-less.
Appellant had the intent to premeditate and deliberate the murders of the Elliot family. Further, he had the intent to use the control over his own family to make them help him commit these unspeakable crimes. The evidence should be admissible under the intent exception to Rule 404(b). The evidence in this case is overwhelming. The circuit court did not abuse its discretion. Therefore, this case should be affirmed.
Glaze and Dickey, JJ., join.