dissenting. I would reverse and remand because the error in this case was not slight. Where the error is slight and the evidence is overwhelming, we can declare error harmless. See Von Holt v. State, 85 Ark. App. 308, 151 S.W.3d 1 (2004). Conversely, where the evidence supporting the conviction is overwhelming but the error is not slight, the error is prejudicial. See id. Error is not slight or harmless where statements in the jury’s presence are so prejudicial that no admonition to the jury will cure them, and where they violate an accused’s right to a fair trial. See id. (reversing and remanding for a new trial based on the erroneous admission of evidence that the defendant had previously been arrested for possession of drug paraphernalia, even though a cautionary instruction had been given, where the incident occurred over three years prior to the current prosecution, the prior incident was no more than an arrest, and the evidence had no independent relevance). That is the case here.
Recently, the Arkansas Supreme Court reversed and remanded for a new trial based on a very similar Rule 404(b) violation. See Phavixay v. State, 373 Ark. 168, 282 S.W.3d 795 (2008). The Phavixay defendant was convicted of delivery of methamphetamine in a controlled buy. The trial court permitted the confidential informant (Cl) and police officer to testify about another controlled buy in which the defendant sold drugs to the Cl only ten days prior to his arrest in that case. The supreme court rejected the State’s argument that the testimony was necessary to explain the relationships between the parties and the ongoing drug operation or that it was probative due to the proximity in time to the instant offense.
The Phavixay court reversed and remanded for a new trial due to the Rule 404(b) violation, even though it acknowledged that the two controlled buys were “similar and in close proximity of one another.” Id. It reasoned that intent was not an issue, as the defendant was charged only with delivery, and concluded that it could not perceive any reason for admitting the evidence except to show the defendant was likely to have dealt drugs in the instant case because he had done so before. Notably, the Phavixay court reversed even though a proper limiting instruction was issued.
As in Phavixay, the testimony in the instant case by West and Officer Lee that appellant was a drug dealer or drug supplier who had sold drugs to West on a prior occasion served the sole purpose to prove that appellant was likely to have dealt drugs in the instant case because he had done so before. As appellant argues, “The State wanted to peg the Appellant as a drug dealer from the very first moment the jury heard about him” and “the State wanted the jury to hear the words ‘drug dealer’ or ‘drug supplier’ as many times as possible.” In its opening argument, the second statement made by the prosecutor was that West named appellant as his “drug supplier.” Then, the jury heard testimony from Lee, who quickly explained how he came to arrest appellant, then testified that West identified appellant and Poole as his suppliers. Immediately after Lee testified, West testified and almost immediately identified appellant as a drug dealer.
The instant facts provide an even more compelling basis for reversal than the Phavixay and Von Holt facts. For evidence of prior drug sales to be admissible, the State mustpíwe more than the fact that a prior drug transaction occurred between the same parties; it must show that there is a very high degree of similarity between the prior transaction and the current transaction and that prior sales are not too remote in time from the instant alleged transaction. See Johnson v. State, 333 Ark. 673, 972 S.W.2d 935 (1998). The State argues that the testimony was necessary to prove that appellant was “similarly supplying Mr. Poole” with narcotics. (Emphasis added.) Yet, the testimony about the prior sale provided no details about the other transaction by which the trial court or the jury could have concluded that the transactions were similar.
In Phavixay, the two sales were similar and the prior sale took place only ten days before the defendant’s arrest; the Von Holt defendant was arrested three years before due to items found in an inventory search of his vehicle. Thus, in those cases, even where the nature of the prior offenses and the dates were known, the evidence was inadmissible under Rule 404(b). Here, there was absolutely no testimony regarding when the alleged prior sale took place and no testimony to establish any similarity between the two sales. Surely, a prior alleged sale, the nature of which was not established, and which occurred at an unknown time, is not relevant.
Simply phrased, the testimony labeling appellant as a “supplier” or a “drug dealer” was probative of nothing except the fact that appellant was alleged to have sold drugs to West on one prior occasion, at some unknown time in the past. Yet the State was permitted to plaster the drug dealer/drug supplier label on appellant from the inception of the case, accomplishing its goal of implanting in the mind of the jury that appellant dealt drugs this time because he had done so before. See Von Holt, supra (reversing and remanding on a Rule 404(b), in part, because the inadmissible evidence was the first evidence that the jury heard in the trial, as well as the first piece of evidence shown to the jury).
Also, as in Phavixay, intent was not an issue in this case because Marmolejo was charged as an accomplice to the delivery of methamphetamine. Further, just as the limiting instructions in Phavixay and Von Holt did not cure the prejudice, the limiting instruction issued in this case did not cure the prejudice, first, because the testimony was not independently relevant yet was essentially the first evidence that the jury heard. The testimony was not relevant to prove West’s credibility, as his credibility had not been challenged and as a witness’s credibility is not the subject of Rule 404(b). See Ark. R. Evid. 608(a); Green v. State, 365 Ark. 478, 231 S.W.3d 638 (2006); Williams v. State, 329 Ark. 8, 946 S.W.2d 678 (1997). Nor was the testimony relevant to corroborate Poole’s testimony, which was corroborated by testimony of the police officers.
Second, the limiting instruction issued here could not have cured the prejudice because it erroneously informed the jury that it could consider the testimony as evidence of West’s state of mind and the basis for West’s actions, neither of which falls within the ambit of Rule 404(b). See Lewis v. State, 73 Ark. App. 417, 44 S.W.3d 759 (2001). I am at a loss to determine how a jury instruction can cure prejudice when it permits the jury to consider erroneously admitted evidence for improper purposes. See Von Holt, supra (holding the Rule 404(b) limiting instruction did not cure the prejudice resulting from the evidence, where the evidence had no independent relevance).
For the above-stated reasons, I cannot agree that the error in this case was slight or harmless. Accordingly, I would reverse this case and remand for a new trial.