dissenting. The majority court does a good job setting out case law analysis in its discussion of A.R.E. Rule 404. In fact, it does a much better job than Ms. Diffee did at trial. The hearing on the admissibility of Mr. Diffee’s testimony under A.R.E. Rules 404 and 801 was actually requested by the state. After hearing Mr. Diffee’s pretrial testimony, the only objection Ms. Diffee interposed to admitting Mr. Diffee’s testimony into evidence was that Mr. Diffee was unclear on whether Ms. Diffee attacked him with an ice pick. The following colloquy is all that I can find in the record concerning the admissibility of Mr. Diffee’s testimony:
STATE: That’s all I have on this motion, Your Honor.
THE COURT: Okay. I think clearly the attack is — there’s no problem with that.
DEFENSE COUNSEL: Your Honor, we have — I think there’s a big problem with the attack.
THE COURT: Oh, you do. What?
DEFENSE COUNSEL: Yes, Your Honor. This gentleman says someone stabbed him. He doesn’t know what stabbed — he’s cut, he’s bleeding.
THE COURT: Oh, I think there’s sufficient evidence there that, you know, —
DEFENSE COUNSEL: He comes back the next day and finds something on the floor under the bed.
THE COURT: He didn’t find something. He found an ice pick.
DEFENSE COUNSEL: And says it’s an ice pick. He just brings this to our attention a week or so ago.
THE COURT: Well, certainly, you can argue that. We’re talking about whether or not it’s admissible, not whether or not it’s something you cannot or can attack at trial, you know. Certainly, I think it’s admissible, sure.
Is this lady denying she attacked her mother?
DEFENSE COUNSEL: Denying she attacked who?
THE COURT: Well, that she committed the crime in this case?
DEFENSE COUNSEL: Yes, Your Honor.
THE COURT: Well, I think it’s admissible then. Yeah.
As can be seen from the above, defense counsel’s expressed concern went to the sufficiency of Mr. Diffee’s testimony. The court’s response was that counsel could “argue that,” but the court said, “We’re talking about whether or not it’s admissible.”
Defense counsel never stated any reason why Mr. Diffee’s testimony was inadmissible. This court has repeatedly held that an objection must be specific enough to apprise the trial court of the specific error in question. Scroggins v. State, 312 Ark. 106, 848 S.W.2d 400 (1993). Again, Ms. Diffee’s concern at the pretrial hearing went to the sufficiency of Mr. Diffee’s testimony, and it is also well settled that a party cannot change grounds for an argument on appeal. Id.
Finally, the majority opinion attempts to justify reaching the merits on the foregoing point by saying the state conceded that Ms. Diffee preserved an A.R.E. 404(b) objection. Obviously, the state is unable to concede a fact that did not, and does not, exist. To reiterate, Ms. Diffee made no Rule 404(b) objection; instead she argued only the insufficiency, not inadmissibility, of the evidence.
I pointed out above that the state’s pretrial motion raised initial questions concerning the admissibility of Mr. Diffee’s testimony under A.R.E. Rules 404(b) and 801, but Ms. Diffee gave no reason to the trial judge why that testimony should be excluded under either one of those rules. For whatever reason, this court now ignores its longstanding rule requiring a party to apprise the trial court of the specific error it would make if it were to admit questioned evidence. This court’s failure to follow this settled rule of review results in its reversing this case based upon an error and reason the defense never raised or mentioned to the trial judge.
For the foregoing reasons, I respectfully dissent.
Corbin, J., joins this dissent.