dissenting. I respectfully dissent for the reasons set out in my previous dissents and concurrences.1 I also note my concern on particular issues in this case. First, I am concerned that based on the analysis in this case on Rule 404(b), modus operandi will be relegated to the evidentiary dustbin because it is difficult to imagine any prosecutor who will now resort to the more stringent requirements of modus operandi. Second, I am deeply concerned by the perfunctory review of the weighing of probative value against prejudicial harm. The prejudice resulting from admission of evidence of the guilt in another crime is overwhelming, and the analysis should be rigorous and thorough. Expecting a jury to simply ignore such evidence has been described as expecting “a measure of dispassion and exactitude beyond mortal capabilities.” United States v. Daniels, 770 F.2d 1111, 1118 (D.C. Cir. 1985). If the prejudicial harm is overwhelming, then at the least, the probative value must be more overwhelming. Finally, as can be noted from confusion at trial, one must wonder which crime Morris was convicted of committing — the crime against L.L., or the subsequent crime against A.T. A.T. testified at this trial and the full proof against Morris regarding A.T. was presented.
Again, I raise my concern that the presumption of innocence is being eroded. I also express deep concern that elementary evidentiary principles predating2 the establishment of this state are being ignored in admitting character evidence for the purpose of proving that the defendant acted in conformity therewith on a particular occasion. A conclusory statement that the evidence is being admitted to prove motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident does not make inadmissible character evidence admissible. The error committed by such pro forma analysis is evident in this opinion where the court is holding that while the evidence is not admissible to prove character, it is admissible to show that the criminal defendant had the propensity to commit the acts, which is precisely the same thing and precisely what the rule is intended to prevent. A finding of guilt must rest upon proof, beyond a reasonable doubt, that the accused committed the exact offense for which he is being tried. Hickey v. State, 263 Ark. 809, 569 S.W.2d 64 (1978). The right to a fair trial is being compromised.
“The impropriety of giving evidence showing that the accused had been guilty of other crimes, merely for the purpose of thereby inferring his guilt of the crime for which he is on trial, may be said to have been assumed and consistendy maintained by the English courts ever since the common law itself has been in existence.” People v. Shea, 147 N.Y. 78, 99, 41 N.E. 505, 511 (1895).
See Hamm v. State, 365 Ark. 647, 232 S.W.3d 463 (2006) (Hannah, C.J., dissenting); Nelson v. State, 365 Ark. 314, 229 S.W.3d 35 (2006) (Hannah, C.J., dissenting); Cluck v. State, 365 Ark. 166, 226 S.W.3d 780 (2006) (Hannah,C.J.,dissenting); Saul v. State, 365 Ark. 77, 225 S.W.3d 373 (2006) (Hannah, C.J., concurring); Swift v. State, 363 Ark. 496, 215 S.W.3d 619 (2005) (Hannah, C.J., concurring); Davidson v. State, 363 Ark. 86, 210 S.W.3d 887 (2005) (Hannah,C.J.,concurring); Davis v. State, 362 Ark. 34, 207 S.W.3d 474 (2005) (Hannah, C.J., dissenting); Fells v. State, 362 Ark. 77, 207 S.W.3d 498 (2005) (Hannah, C.J., dissenting); McCoy v. State, 354 Ark. 322, 123 S.W.3d 901 (2003) (Hannah, J., concurring).