dissenting. The majority reaches the remarkable conclusion that Phavixay’s delivery of methamphetamine to a confidential informant ten days before a similar delivery of methamphetamine to the same confidential informant is not relevant evidence under a Rule 404(b) exception. The majority premises its logic in part on its surprising conclusion that intent is not a specific issue in this case. That, of course, is just plain wrong. The jury received two Rule 404(b) instructions during the trial and a third general instruction that to sustain the charge for delivery of methamphetamine, the State must prove that Phavixay “knowingly or purposefully” transferred the drug for money. The State then argues intent in this appeal. Why the majority concludes that intent is not an issue is perplexing. Not only does the majority miss the mark factually in its opinion, but it cites no case law, state or federal, to support its dubious analysis that a similar crime is not relevant evidence of intent.
Rule 404(b) delineates plainly when other crimes, wrongs, and acts are relevant evidence:
(b) Other Crimes, Wrongs, or Acts. Evidence of other crimes, wrongs, or acts is not admissible to prove the character of the 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. P. 404(b) (2007). Without question, the Rule 404(b) language contains a prohibition against evidence simply proving the defendant is a “bad guy,” and this court has upheld that prohibition in our case law. See, e.g., Green v. State, 365 Ark. 478, 231 S.W.3d 638 (2006) (circuit court abused its discretion in allowing testimony that defendant “had always been on the outside of the law,” that he was abusive and controlling, and that he had smoked methamphetamine and forced others to steal in defendant’s trial for kidnapping and capital murder; this court held that the testimony had no independent relevance and was introduced as an attempt to prove that the defendant was a bad person).
Evidence of past crimes, wrongs, or acts, however, is relevant and admissible under the express terms of Rule 404(b) to show motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident. Here, Phavixay was charged with delivery of methamphetamine. “Delivery” is defined as the transfer of a controlled substance in exchange for money. Ark. Code Ann. § 5-64-101(7) (Supp. 2007). The prosecuting attorney then introduced proof of a similar delivery of methamphetamine that occurred ten days earlier to the same confidential informant for money. What could be more relevant and illustrative proof of motive, opportunity, intent, preparation, and so forth than that? Indeed, a similar act committed ten days before the charged crime satisfies any one of the Rule 404(b) exceptions.
Moreover, the trial judge gave the jury the following instruction on the relevancy of the earlier delivery of methamphetamine before Detective Craghead’s testimony at trial, after counsel for Phavixay agreed to it:
BY THE COURT: AH right. Ladies and gentlemen, I want to instruct you that the evidence you are about to hear of other aHeged crimes, wrongs or acts of this Defendant may not be considered by you to prove the character of this Defendant. This evidence is not to be considered to estabhsh a particular trait of character of this Defendant, nor is it to be considered to show that he acted simüarly or accordingly on the date of this incident, but this evidence is merely being offered to show motive, opportunity, intent, participation, plan, knowledge, identity, absence of mistake, accident or consciousness of guHt. Whether any of this (sic) other aHeged crimes, wrongs, or acts have been committed is for you to determine.
Essentially, the same Rule 404(b) instruction was given at the time the general instructions were read by the judge. The trial judge, in addition, instructed the jury that the State was required to prove that Phavixay “purposely, knowingly, or recklessly” delivered the methamphetamine to the informant for money. The prosecutor, of course, had tried to prove Phavixay’s culpable mental state under Rule 404(b) by proof of Phavixay’s similar sale for money. Why is that not relevant?
At the heart of my dissent is the issue of stare decisis. To examine the raft of cases where this court has held that a similar crime is probative of motive, opportunity, intent, etc., one need only turn to the annotation under Rule 404(b). See Ark. R. Evid. 404(b) case notes (2007).1 Without question, multiple cases of this court are overruled by implication as a result of today’s opinion, but what cases? The majority mentions Scroggins v. State, 312 Ark. 106, 848 S.W.2d 400 (1993). It is right on point and is contrary to the majority’s holding. The majority is wrong when it tries to distinguish Scroggins on the basis that an exchange for money is not an issue in the instant case. That will be news to the jury, since Phavixay was charged with that crime and the jury was instructed precisely on that point.
Is Scroggins still good law? Are prosecuting attorneys now foreclosed from using bad acts, wrongs, or crimes that are too similar to the crime charged? That is certainly ironic if the holding limits bad acts that are too similar but allows bad acts that are somewhat similar to fall within the Rule 404(b) exceptions. In any case, confusion will now reign regarding what the State is permitted to introduce under Rule 404(b).
Surely cases from time to time are overruled by this court, but we do so sparingly. And we have set the ground rules for such changes:
[I]t is necessary, as a matter of public policy, to uphold prior decisions unless great injury or injustice would result. The policy behind stare decisis is to lend predictability and stability to the law. In matters of practice, adherence by a court to its own decisions is necessary and proper for the regularity and uniformity of practice, and that litigants may know with certainty the rules by which they must be governed in the conducting of their cases. Precedent governs until it gives a result so patently wrong, so manifestly unjust, that a break becomes unavoidable.
State Auto Property & Cas. Ins. Co. v. Arkansas Dep’t of Envtl. Quality, 370 Ark. 251, 257, 258 S.W.3d 736, 741 (2007) (quoting Cochran v. Bentley, 369 Ark. 159, 174, 251 S.W.3d 253, 265 (2007)).
I find myself in the posture of Justice Stephen Breyer, who wrote in his recent dissent in the Seattle School District case: “What has happened to stare decisisV’ Parents Involved in Cmty. Sch. v. Seattle Sch. Dist. No. 1, 551 U.S. 701 (2007) (Breyer, J., dissenting). What has happened indeed?
I respectfully dissent.
Corbin and Gunter, JJ., join this dissent.SUPPLEMENTAL OPINION ON DENIAL OF REHEARING
MAY 29,2008
Modus operandi is different from proof of intent, and though the majority addresses modus operandi, it has not been raised by either party and is not an issue in this case.