concurring. I concur in affirming this case, but on the basis of harmless error. In considering the majority’s reasoning, I must state that this case yet again raises concern for the current validity and future viability of the longstanding rule that character evidence is not admissible to prove conduct in conformity with that character. If the rule has not yet been swallowed up by its exceptions, then the rule has so far descended into the gaping maw of the exceptions that the rule is all but lost. The application of the rule in both our trial and appellate courts has deteriorated to the point that legal analysis of the issue of admissibility of character evidence most often begins, and ends, with the assumption that the issue of admissibility of character evidence is only a matter of picking the exception that fits best.
The application of the exceptions has become deeply troubling. The rule is designed to assure that a criminal defendant is tried for the crime charged, and not for past bad acts, or convicted because he or she is a bad person. Where, as in this case, it is apparent that the evidence is being introduced to prejudice the jury, inadmissible character evidence does not become admissible evidence of lack of accident or mistake just by calling it so. As Justice McFaddin once quoted in a dissenting opinion, “[t]he old adage is applicable here, to-wit: a cow has four legs; and calling its tail a leg does not give a cow five legs, because calling the tail a leg does not make it one.” Morley v. Capital Trans. Co., 217 Ark. 583, 591, 32 S.W.2d 641 (1950).
The desire to admit evidence of character is quite understandable. It fits very nicely with a natural human inclination in criminal cases to conclude that if a person committed a criminal act in the past, he or she likely committed the one charged. This inclination is especially seductive where the prior crime and the present crime are serious ones. Fiowever, we once stated:
Many times we have held that evidence of other crimes committed by a defendant is not admissible to prove his guilt of the crime for which he is then on trial. Williams v. State, 183 Ark. 870, 39 S.W.2d 295; Warp v. State, 91 Ark. 555, 121 S.W. 927; Alford v. State, 223 Ark. 330, 266 S.W.2d 804.
Miller v. State, 239 Ark. 836, 839, 394 S.W.2d 601 (1965). The same holding can be found stated today. Jones v. State, 349 Ark. 331, 78 S.W.3d 104 (2002). The law is dutifully stated by the courts, then an exception is determined, and no error is found. In older cases, decided in times thought by some not to be nearly so enlightened as ours, this court did reverse such cases. See Alford, 223 Ark. 330, 266 S.W.2d 804 (1954); Williams v. State, 183 Ark. 870, 39 S.W.2d 295 (1931),
The issue of improper admission of character evidence is a most serious one. A discussion by the United States Supreme Court in 1948 casts light on the seriousness of the issue:
Courts that follow the common-law tradition almost unanimously have come to disallow resort by the prosecution to any kind of evidence of a defendant’s evil character to establish a probability of his guilt. Not that the law invests the defendant with a presumption of good character, Greer v. United States, 245 U.S. 559, but it simply closes the whole matter of character, disposition and reputation on the prosecution’s case-in-chief. The state may not show defendant’s prior trouble with the law, specific criminal acts, or ill name among his neighbors, even though such facts might logically be persuasive that he is by propensity a probable perpetrator of the crime. The inquiry is not rejected because character is irrelevant; on the contrary, it is said to weigh too much with the jury and to so overpersuade them as to prejudge one with a bad general record and deny him a fair opportunity to defend against a particular charge. The overriding policy of excluding such evidence, despite its admitted probative value, is the practical experience that its disallowance tends to prevent confusion of issues, unfair surprise and undue prejudice.
Michelson v. United States, 335 U.S. 469, 475-76 (1948) (emphasis added). Somewhat more recently in United States v. Moccia, 681 F.2d 61, 63 (1 st Cir. 1982), the First Circuit Court of Appeals stated:
Although . . . propensity evidence’ is relevant, the risk that a jury will convict for crimes other than those charged ... or that, uncertain of guilt, it will convict anyway because a bad person deserves punishment. . . creates a prejudicial effect that outweighs ordinary relevance.
We similarly stated long ago:
It is uniformly held that the prosecution cannot resort to the accused’s bad character as a circumstance from which to infer his guilt. This doctrine is founded upon the wise policy of avoiding the unfair prejudice and unjust condemnation which such evidence might induce in the minds of the jury. If such testimony should be admitted, the defendant might be overwhelmed by prejudice, instead of being tried upon the evidence affirmatively showing his guilt of the specific offense with which he is charged.
Ware v. State, 91 Ark. 555, 121 S.W. 927 (1909). See also Howard v. State, 37 Ark. 265 (1881); Baker v. State, 4 Ark. 56 (1843); United States v. Carrigo, 25 Fed. Cas. 310 (C.C. D.C. 1802).
What is at issue in excluding evidence of character is providing a fair trial. Failing to abide the rule on character evidence runs the risk of depriving criminal defendants of their constitutional right to a fair and impartial trial. We should also remember, as Justice Fogleman stated in his concurring opinion in Alexander v. State, 268 Ark. 384, 389, 598 S.W.2d 395 (1980), “It is the primary function of the judicial system to preserve the rule of law, even if the guilty do escape punishment as a result of the courts’ facing up to their responsibility.” We must be careful not to sacrifice justice for expediency.
The bottom line is that for over a century we have held that one could only be convicted of a crime if the State proved beyond a reasonable doubt that the criminal defendant committed the crime. The rule on inadmissibility of character evidence is easily traceable for two hundred years and beyond in Anglo-American jurisprudence. A criminal defendant should not be convicted by substituting evidence of past crimes or bad acts for the required proof. The simple logic and common sense underlying this rule makes the departure from the rule by this court impossible to understand. It also raises the specter of future constitutional challenges to this departure that will doubtless soon be addressed to this court.
Turning to the case at hand, there is no doubt that the conviction on third-degree battery showed that McCoy harmed Battung. The harm might have been caused by a negligent act with a deadly weapon, or a reckless act, or it might have been inflicted by drugging her drink to induce a stupor. We just do not know. We do not even know what the injury was. No more than the bare conviction was introduced into evidence, so we do not know the nature and extent of the battery.
I must note that third-degree battery requires that a person intend to commit the act purposely, recklessly or negligently. Ark. Code Ann. § 5-13-203(a)(2-3) (Repl. 1997). Thus, without more evidence than was introduced in this case, it is impossible to determine what intent was involved in the former crime. Only the Defendant Docket Profile on the battery conviction was introduced. It provides utterly no facts at all, but rather is only a certification of the conviction. Thus, we do not know whether McCoy was convicted of acting purposefully, recklessly or negligently, nor do we know whether a weapon or deadly weapon was used, or no weapon at all. One must then ask how relevant any conviction for third-degree battery is in this case in proving that McCoy purposely attempted to kill Battung on a later occasion.
Further, third-degree battery requires that the perpetrator cause a “physical injury.” Ark. Code Ann. § 5-13-203(a)(l). Physical injury is defined as:
(A) Impairment of physical condition;
(B) Infliction of substantial pain; or
(C) Infliction of bruising, swelling, or visible marks associated with physical trauma. . .
Ark. Code Ann. § 5-1-102(14) (Supp. 2003). Under second-degree battery, a serious injury must be inflicted, which is a physical injury creating a substantial risk of death. Ark. Code Ann. § 5-1-102(19) (2003). Clearly, attempting to kill Battung with a pistol would be an injury carrying with it a substantial risk of death. Therefore, a conviction for second-degree battery, properly proven, would be relevant to show a lack of accident or mistake. But we do not have a conviction for second-degree battery, but, rather, we have a conviction for third-degree, a misdemeanor. Second-degree battery is a felony. The State characterized the battery as “beating Sarah Battung.” McCoy responded, “If you want to word it like that.” No explanation of this comment was elicited by the State.
The bare conviction, the majority holds, “was properly introduced to show absence of mistake or accident, which is allowable under Rule 404(b).” Thus, we are told that the third-degree battery conviction is relevant to show that when McCoy pulled the pistol and shot, he did not shoot by accident or mistake, but did so with the purpose of causing Battung’s death. That is the required mental state for attempted first-degree murder.
One might weakly argue that the conviction makes it more probable that McCoy shot Battung with the purpose of causing her death. The conviction does show that McCoy had a propensity to harm Battung at a point in the past. Thus, the conviction is relevant. Relevant evidence is evidence having “any tendency” to make the existence of a fact more probable. Ark. R. Evid. 401 (2003). However, although the conviction is relevant, it only makes it more probable that McCoy would commit some harmful act against Battung generally, and thus hardly casts much light on the real issue of McCoy’s mental state at the moment of the shooting. The jury had to determine whether McCoy was acting with purpose or a lesser mental state.
There is no similarity between the crimes as the majority notes is required. The majority cities Sasser v. State, 321 Ark. 438, 902 S.S.2d 773 (1995), but clearly the two crimes are not similar, and the conviction on third-degree battery therefore must also be excluded on this basis. If the conviction for third-degree battery was for negligently harming Battung, how would that be relevant to show a lack of accident or mistake?
The issue of whether McCoy shot Battung by accident was clearly the issue upon which the State introduced the conviction. Upon objection by McCoy to introduction of the conviction, the prosecutor stated that the prior battery and conviction “shows that’s a lack of mistake and lack of accident.” McCoy’s objection was under Ark. Rules of Evid. 404 and 403. The trial court overruled the objection, and there is nothing more on the issue in the transcript. In his brief, McCoy stated, “Appellant McCoy’s defense was that his shooting of Ms. Battung was an accident.” The State argues in its brief that, “[t]his court should affirm because the evidence of the prior conviction was properly admitted as evidence of lack of mistake or accident and motive under Ark. R. Evid. 404(b) and the probative value outweighed any prejudice under Ark. R. Evid. 403.” The majority states, “Because appellant indicated that the incident was a mistake or accident, the admitted evidence of the prior conviction for domestic battering was properly introduced to show absence of mistake or accident, which is allowable under Rule 404(b).”
I must first note that although the majority uses the term “domestic battery,” the conviction was for third-degree battery. It was the State that introduced the term domestic battery. Second, while I agree that the conviction might in some weak sense make it more likely the shooting was not an accident, the conviction clearly could not survive Rule 403 analysis. The prejudicial harm so obviously outweighs the probative value as to make discussion of the issue of Rule 403 unnecessary. This is exactly the sort of harm Rule 404 is intended to avoid. Here, McCoy was overwhelmed by prejudice. See Ware, supra.What the State intended to do was introduce evidence of character to prove conformity therewith in commission of the crime. This court has allowed the State to do so. Rule 404 prohibits this.
If we have decided to abandon Rule 404, we should say so. The constitutional implications of that decision could then be-explored in future cases.
I also disagree with the majority’s conclusion that McCoy invited the error. The majority states that by repeating back to the State in examination, “domestic dispute” by stating, “If you want to word it like that,” and by denying knowledge of the no-contact order, McCoy opened the door to admission of the conviction. The conviction was for third-degree battery. That domestic battery was mentioned did not raise the issue of the conviction. Obviously if there was a no-contact order, there was some form of dispute or there would be no order. That conclusion is required by common sense. It hardly opens a door to the conviction.
Finally, I do concur in the outcome, but only because the error was harmless error. The facts show at the least that McCoy pulled out a pistol and started shooting. Battung alone was hit, and hit twice, which tends to show McCoy was aiming at her. There was also evidence that McCoy emptied the revolver at Battung. Additionally, Battung testified that McCoy threatened to kill her earlier in the day before he shot her that night. Battung also testified that McCoy did not point the pistol at anyone else. There was also evidence that prior to entering the apartment, the visitors with Battung goaded McCoy over the phone about kissing Battung, and otherwise attempted to anger him. There was also abundant evidence from the moments just prior to McCoy’s entering the apartment that McCoy had not accepted termination of the relationship with Battung and intended to continue it by any means. I would affirm this case on harmless error. Jones v. State, 349 Ark. 331, 78 S.W.3d 104 (2002).