concurring in part and dissenting in part.
I concur with the majority opinion’s conclusion that this case must be remanded for a new trial, primarily because of the admission of “prior bad acts” evidence relating to Appellant’s sexual abuse of his daughter, L.B., admission of evidence of his previous and subsequent marriages and that he abandoned his child conceived by another relationship, and admission of firearms that were unrelated to the crime. However, I disagree with the majority opinion with respect to a few issues that are likely to recur upon retrial.
I. EVIDENCE OF BEATING.
This is a sub-issue of the “prior bad acts” issue regarding Appellant’s sexual abuse of his son, D.O. I agree with the majority opinion that evidence of the sexual abuse of D.O. is admissible to prove Appellant’s motive for killing his wife, because she knew of the sexual abuse and had threatened to report it to the police. The sub-issue on which I dissent concerns admission of evidence that after the police interviewed D.O. about the sexual abuse, Appellant administered a beating to D.O. The majority opinion holds that this evidence is admissible under KRE 404(b)(1) for the “other purpose” of showing a “sense of guilt.” Ante, at 707.
We have held that evidence of flight by a defendant from the scene of a crime or from arresting officers, as well as evidence of a defendant’s efforts to bribe a juror or witness, or to fabricate evidence, is admissible to show a sense or consciousness of guilt.
If one accused of crime flees, or attempts to bribe a witness, or a juror, or to fabricate evidence, all such conduct is receivable as evidence of his guilt of the main fact charged. It is in the nature of an admission; for it is not to be supposed that one who is innocent and conscious of the fact would flee, or would feel the necessity for fabricating evidence.
Turpin v. Commonwealth, 140 Ky. 294, 130 S.W. 1086, 1087 (1910) (attempted bribery of juror). See also Rodriguez v. Commonwealth, 107 S.W.3d 215, 219-20 (Ky.2003) (flight); Adkins v. Commonwealth, 96 S.W.3d 779, 793 (Ky.2003) (giv*713ing false name and address to arresting officer); Tamme v. Commonwealth, 973 S.W.2d 13, 29-31 (Ky.1998) (subornation of perjury); Foley v. Commonwealth, 942 S.W.2d 876, 887 (Ky.1996) (“Any attempt to suppress a witness’ testimony by the accused, whether by persuasion, bribery, or threat, or to induce a witness not to appear at the trial or to swear falsely, or to interfere with the processes of the court is evidence tending to show guilt.”); Collier v. Commonwealth, 339 S.W.2d 167, 168 (Ky.1960) (threat to kill complaining witness if she did not take action to have charges dismissed); Davis v. Commonwealth, 204 Ky. 601, 265 S.W. 10, 11 (1924) (attempted bribery of witness); Wilhite v. Commonwealth, 203 Ky. 543, 262 S.W. 949, 950 (1924) (threat to kill witness and attempt to carry out threat after the witness testified before grand jury). In each of those cases, the evidence directly related to an attempt to avoid judicial proceedings or to spoliate evidence relating to the charged offense.
Evidence that Appellant administered a beating to D.O. after D.O.’s interview with the police does not tend to show an attempt to avoid judicial proceedings or to spoliate evidence relating to the charged offense. In the first place, the charged offense was the murder of Appellant’s wife, not the sexual abuse of D.O. In the second place, the evidence only ambiguously tends to show a consciousness of guilt of sexual abuse. The majority opinion assumes that Appellant beat D.O. as punishment for telling the truth or to discourage further disclosures, whereas Appellant could just as well have beaten D.O as punishment for telling a lie. Regardless, I find no authority for the proposition that a “prior bad act” can be admitted as circumstantial proof of another “prior bad act” that is admitted solely as circumstantial proof of a motive to commit the charged offense. The evidence more nearly proves by a specific instance of conduct that Appellant was a man of violent character who was likely to have killed his wife in a fit of rage. So viewed, the evidence is inadmissible under KRE 404(a) and 405(a), and I would direct the trial court to exclude it at retrial.
II. EVIDENCE OF PAST IMPRISONMENTS.
The Commonwealth introduced this evidence through the testimony of Appellant’s estranged father, James Major, who was permitted to testify that Appellant had obtained his GED (General Educational Development) diploma while in prison, that one of Appellant’s wives divorced him while he was in prison, that Appellant had married a pen pal with whom he corresponded while in prison, and that Appellant was sentenced to fifteen years for sexually abusing his children “but got out in ten for good behavior.” James Major also testified that while incarcerated in Kentucky on charges of molesting D.O., Appellant called him on the telephone and confessed to the murder of his wife. The majority opinion holds that all of this evidence of multiple imprisonments was admissible “as explaining the delay in the Appellant being brought back to Kentucky. ...” Ante, at 708. I disagree.
Evidence is relevant if it has “any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.” KRE 401 (emphasis added). As explained by Professor Lawson, KRE 401 incorporates the concepts of both relevance and materiality. Relevance is embodied in the language “any tendency to make the existence of any fact ... more probable or less probable.... ” Materiality is embodied in the language “that is of consequence to the determination of the *714action.” Robert G. Lawson, The Kentucky Evidence Law Handbook § 2.05[2], at 78-79 (4th ed. LexisNexis 2003).
A consequential or material fact is ascertained under ... substantive law by determining whether it is “in issue” in the sense that it is within the range of litigated matters in controversy. It need not be an element of a crime or cause of action or defense but it must, at least, be in issue.... If the evidence is offered to prove a fact not in issue under substantive law then, while it might be probative of that fact, it is nonetheless not relevant under Rule 401.
Id. § 2.05[3], at 81 (quoting 2 Weinstein’s Federal Evidence § 401.04[3][b] (2d ed. 2002)). However:
The fact to which the evidence is directed need not be in dispute.... Evidence which is essentially background in nature can scarcely be said to involve disputed matter, yet it is universally offered and admitted as an aid to understanding. Charts, photographs, views of real estate, murder weapons, and many other items of evidence fall into this category. A rule limiting admissibility to evidence directed to a controversial point would invite the exclusion of this helpful evidence, or at least the raising of endless questions over its admission.
Id. (quoting Fed.R.Evid. 401, Advisory Committee’s Notes).
Neither the fact that Appellant had been previously incarcerated nor the length of his incarceration was a “fact that is of consequence to the determination” of whether he murdered his wife. Nor was it helpful in understanding other relevant evidence. “[EJxplaining the delay in the Appellant being brought back to Kentucky” is a non-issue. Appellant did not confess the murder to his father until 1996, after he had completed his imprisonment in Massachusetts and after he had been extradited to Kentucky and imprisoned on charges of sexually abusing D.O. in Kentucky. James Major did not tell Kentucky authorities about the confession until 2001, after Appellant had completed service of his Kentucky sentence. Thus, the explanation for the delay was not Appellant’s multiple imprisonments but the fact that the police did not learn of his confession until 2001. Of course, the evidence was not only irrelevant; it was also highly prejudicial in that it portrayed Appellant as a life-long criminal. Considering the absence of any pro-bativeness and the extreme prejudicial effect of this evidence, I would hold that its admission was an abuse of discretion and would direct the trial court on remand to exclude it on retrial.
III. PRIOR CONVICTION.
I agree with the majority opinion that Appellant’s prior convictions of sexually abusing D.O. in both Kentucky and Massachusetts would be relevant to prove that Appellant sexually abused D.O. “Evidence offered under the ‘other crimes’ rules occasionally consists of a judgment of conviction, making it easier to assume that the accused in fact committed the uncharged crime.” Lawson, supra, § 2.25[3][c], at 130. However, the prosecutor and the trial court should be aware that this Court recently overruled that portion of Young v. Commonwealth, 968 S.W.2d 670, 674-75 (Ky.1998), that held that a notarized authentication of a foreign judgment of conviction is sufficient authentication to permit admission of that conviction under KRE 902(8). Matthews v. Commonwealth, 163 S.W.3d 11, 26-27 (Ky.2005).
IV. STANDARD OF REVIEW.
The majority opinion broadly asserts that “[rjulings on the admissibility of evidence by the trial court are not disturbed *715on review in the absence of an abuse of discretion,” citing, inter alia, Commonwealth v. English, 993 S.W.2d 941 (1999). Ante, at 710. However, English only held that “abuse of discretion” is the proper standard of review for a trial court’s determination under KRE 403 that the prejudicial effect of evidence does or does not substantially outweigh its probative value. 993 S.W.2d at 945. If all evidence issues were reviewed for abuse of discretion, there would be no need for KRE 104(a), which contemplates that the trial court will make findings of fact with respect to rulings pertaining to, e.g., KRE 404(b) (prior bad acts), KRE 803 (exceptions to the hearsay rule), etc. See generally Matthews, 163 S.W.3d at 33-34 (Cooper, J., concurring).
The issues raised with respect to the admission of the 2001 tape-recorded conversation between Appellant and his father were (1) whether, since state action was involved, Appellant should have been advised of his Miranda rights prior to making any statements; and (2) whether the recording should have been suppressed because it was obtained in violation of KRS 526.010. The majority opinion correctly concludes that Miranda was not implicated because the telephone call did not constitute a custodial interrogation. Appellant was at his home in Massachusetts. The majority opinion also concludes there was no violation of KRS 526.010 (eavesdropping), because at least one participant consented to the recording. In this regard, the trial court’s determination that the recording was permissible under KRS 526.010 was supported by the evidence and was thus not clearly erroneous. Nor did the trial court commit clear error in finding that Appellant’s statements made during the conversation were admissions as defined in KRE 801A(b)(l). Of course, James Major was in Nova Scotia and Appellant was in Massachusetts when the call was recorded, so Kentucky law would not determine whether the recording was illegally obtained. Either Nova Scotia or Massachusetts law would determine that issue, and Appellant has not cited the trial court or this Court to any applicable law from either jurisdiction that proves his assertion. Appellant having offered no authority for excluding the recording, the trial court did not err in finding that it was not illegally obtained.
JOHNSTONE, J., joins this opinion.