dissenting. I must respectfully dissent. At issue in this appeal is Nelson’s intent to manufacture methamphetamine. The admitted 1988 convictions showed that Nelson possessed methamphetamine and that he delivered methamphetamine. Neither conviction was relevant to show that over a decade later he had the intent to manufacture. No methamphetamine was found in the car, and Nelson was charged with neither possession nor delivery in this case. I note that the State offered as relevant evidence of intent the items seized from the car he was driving,1 all of which do relate to the manufacture of methamphetamine.
The jury was charged with determining whether Nelson “knowingly” possessed drug paraphernalia with the intent to manufacture methamphetamine and “knowingly” possessed pseudoephedrine in violation of the law. The total number of pseudoephedrine pills seized from the car Nelson was driving was 497, which amounted to 29.7 grams. The legal limit one may possess is 9 grams. Ark. Code Ann. § 5-4-1101(a) (Supp. 2003). The inference that arises from the circumstance of the possession of enough cold pills to treat all the winter colds of a small town is obvious. The possession of 497 pills, coupled with being outside their original packaging, contained in a used orange juice container and cigarette package, together with the tubing, Heet, and propane, constitute circumstances that strongly imply an intent to manufacture methamphetamine. This amounts to circumstantial evidence of an intent to manufacture.
Intent is rarely provable by direct evidence. Price v. State, 347 Ark. 708, 66 S.W.3d 653 (2002). Intent “must usually be inferred from the circumstances of the crime.” Watson v. State, 358 Ark. 212, 219, 188 S.W.3d 921, 925 (2004). “[Generally, circumstantial evidence is the only means of proof available” in proving intent. Smith v. State, 264 Ark. 874, 879, 575 S.W.2d 677, 681 (1979). “Circumstantial evidence of a culpable mental state may constitute substantial evidence to sustain a guilty verdict.” Steggall v. State, 340 Ark. 184, 194, 8 S.W.3d 538, 545 (2000). However, while a criminal defendant’s intent or state of mind is rarely capable of proof by direct evidence and “must usually be inferred from the circumstances of the crime . . . [w]hether the evidence is direct or circumstantial ... it must still meet the requirement of substantiality. It must force the fact-finder to reach a conclusion one way or the other without resorting to speculation or conjecture.” Gregory v. State, 341 Ark. 243, 247, 15 S.W.3d 690, 693 (2000).
The majority’s conclusion that the evidence of the 1988 convictions for possession and delivery of methamphetamine make it more probable that Nelson possessed with the intent to manufacture in the present case is based on nothing more than an intuitive assumption that a person who has previous convictions for possession and delivery of methamphetamine is more likely to manufacture methamphetamine fourteen years later than a person who has never had any convictions for possession and delivery of methamphetamine. The lack of similarity between the crimes is profoundly significant. Convictions from 1988 for possession and delivery of methamphetamine do not constitute evidence having any tendency to make it more or less probable that Nelson possessed the seized items with the intent to manufacture on this occasion. It is mere speculation to conclude that because Nelson was convicted in 1988 for possession and delivery that he intended to manufacture on this occasion. It is readily apparent that the evidence was introduced to show that Nelson is a person of bad character who is addicted to crime.
What is relevant and admissible on the issue of intent is evidence of the circumstances of the crime tending to reveal the defendant’s state of mind. See, e.g., Clay v. State, 236 Ark. 398, 366 S.W.2d 299 (1963); Jackson v. State, 214 Ark. 194, 215 S.W.2d 148 (1948). The 1988 convictions fail to meet this requirement.
The analysis in the circuit court and the analysis of the majority is flawed and inadequate. The State was not countering an argument of Nelson in admitting the evidence of the convictions. The issue of the prior convictions was first raised when the State filed a “Trial Memorandum” two days before trial arguing that Nelson’s prior convictions were admissible in its case-in-chief to show “intent, preparation, plan, knowledge and absence of mistake” under Ark. R. Evid. 404. A pretrial hearing on the issue was held in which the circuit court found that the prior convictions for possession of methamphetamine and delivery of methamphetamine were “independently relevant to prove that he had the intent, that he had the knowledge, that he had the plan, the preparation, and that there was no mistake in this case.” The majority concludes that, “[t]he prior convictions make it more probable that Nelson understood the components of methamphetamine and the manufacturing process, making it more probable that he also knew that the items in his possession were illegal in that quantity, as well as used for manufacturing methamphetamine.” The majority thus apparently holds that the evidence satisfies the requirements of relevance under Ark. R. Evid. 401. A conclusion is not analysis. As already discussed, the prior convictions are not relevant under the facts of this case. „
The analysis on admission under Ark. R. Evid. 404(b) is also lacking and in error. The majority concludes that the evidence was independently relevant because it was “probative” in opposition to Nelson’s allegation at trial that he “was simply present in the vehicle and that the drugs belonged to his passenger.” However, Nelson did not deny that the items belonged to him until he testified at trial. To the contrary, it is the State who first raised the issue of the prior convictions. In its opening statement, the State told the jury, “And finally you’ll hear evidence that the Defendant himself is no stranger to methamphetamine. He knows what it is, he knows how you make it, he’s been convicted for two counts of delivering it and one count of possessing it. He knows exactly what it is.” There is little doubt that the prior convictions were admitted to prove Nelson was a man of bad character who acted in conformity with that character in this case.
The State put on no rebuttal to Nelson’s claim in his testimony that the items were not his. In any event, as noted, the evidence of the convictions was admitted in the State’s case before Nelson testified, so obviously the evidence was not offered in rebuttal. Apparently, by pleading innocent, Nelson was faced with the choice of either putting on no case in his defense or suffering the admission of the evidence of the prior crimes. That seems to run counter to the presumption of innocence. This Hobson’s choice might well be a concern that gave rise to the rule that one crime may not be proven by proof of the commission of another unconnected crime.
I also disagree on the issue of remoteness. The majority again presents a conclusion rather than analysis, stating simply that admission of the prior convictions was “reasonable.” The cited cases do not support the majority’s conclusion. In Brenk v. State, 311 Ark. 579, 847 S.W.2d 1 (1993), threats made by Brenk to his first wife that “he would kill her, cut her body to pieces, and scatter the pieces from Mammoth Springs, Arkansas, to Louisiana, so that no one would find her,” although several years old, were allowed. Brenk, 311 Ark. at 598, 847 S.W.2d at 10. However, although the passage of years was noted, there is no significant discussion of remoteness in Brenk. It must be noted that Brenk was accused of killing his second wife, cutting her body up, and putting her torso in a cooler that was sunk in a lake, a method remarkably similar to the threats his first wife testified to. The question in Brenk was whether it was relevant that he had killed his second wife and disposed of her body in, a way strikingly similar to threats he had previously made to his first wife. The evidence was held relevant to plan or intent in a murder case. Brenk is not applicable to this case. There is no similarity between the crimes Nelson was convicted of in 1988 and the present crime.
On the issue of remoteness, the majority argues in essence that convictions older than Nelson’s have been admitted by other courts. This conclusion ignores the discussion in the cited cases. In United States v. Green, 151 F.3d 1111 (8th Cir. 1998), the court noted that it did not apply a standard of an absolute number “in determining whether a prior offense occurred within a relevant time frame for purposes rule 404(b).” Green, 151 F.3d at 1113. Rather, a reasonableness standard is applied. In United States v. McCarthy, 97 F.3d 1562 (8th Cir. 1996), the court again referenced the reasonableness test, and cited United States v. Engleman, 648 F.2d 473 (1981). In Engleman, the court stated that it “applies a reasonableness standard and examines the facts and circumstances of each case.” Engleman, 648 F.2d at 479. The court in McCarthy, supra, relied on United States v. Mejis-Uribe, 73 F.3d 395, 398 (8th Cir. 1996), where the court stated:
The inquiry regarding the remoteness of a prior conviction is fact specific. The two crimes in Engleman were very unique, involving a common scheme. Here, although both crimes involved the distribution of cocaine, the 1978 conviction involved a single sale of cocaine to undercover agents. In contrast, this case involved a large scale, ongoing operation that Uribe entered under Ochoa’s direction. Uribe’s crimes are not as similar in kind as the crimes in Engleman, and they are even more remote in time. See Smith, 49 F.3d at 478. Thus, the 1978 conviction was not similar in kind or reasonably close in time to the instant charges. Id.
Merely stating that other courts have allowed crimes older than thirteen years to come in and then summarily concluding that the admission in the present case was reasonable is not meaningful analysis. The convictions are too remote and dissimilar to be admitted.
On the issue of Ark. R. Evid. 403, the majority states that, “[considering that Nelson attempted to place the blame on his passenger, and that the evidence here involved the same type of drug offense, the probative value was high.” The statement that the same type of drug offense was involved is simply wrong. See Mejis-Uribe, supra. The earlier offenses were for possession and delivery. The present offenses are both based on manufacture. Concluding that denial of guilt amounts to highly probative evidence of guilt is disturbing. Too, as I stated earlier, it was the State not Nelson who first introduced the prior convictions and asserted that he was a person addicted to crime involving methamphetamine. The probative value asserted by the majority is mere conjecture thinly veiled by words that assert relevance.
Any reference to a defendant’s prior convictions during the guilt phase of a criminal trial results in at least some prejudice to the defendant. Smith v. State, 351 Ark. 468, 95 S.W.3d 801 (2003). “The State may not show defendant’s prior trouble with the law, specific criminal acts, or ill name among his neighbors, even though such facts might logically be persuasive that he is by propensity a probable perpetrator of the crime.” Michelson v. United States, 335 U.S. 469, 475 (1948). Rather, a finding of guilt must rest upon proof beyond a reasonable doubt that the defendant committed the offense for which he or she is being tried. Hickey v. State, 263 Ark. 809, 569 S.W.2d 64 (1978) (citing Alford v. State, 223 Ark. 330, 266 S.W.2d 804 (1954)).
The facts laid before the jury should consist exclusively of the transaction that forms the subject of the indictment, and matters relating thereto. To enlarge the scope of the investigation beyond this would subject the defendant to the dangers of surprise against which no foresight might prepare and no innocence defend.
Billings v. State, 52 Ark. 303, 309, 12 S.W. 574, 575 (1889). Even if the evidence of the possession and delivery of methamphetamine were relevant, the prejudicial harm caused by its admission so grossly overwhelms any slight probative value that it calls into question whether the State complied with its burden to prove Nelson’s guilt beyond a reasonable doubt on the crimes charged. Admission of Nelson’s prior convictions may have assured his guilt and precluded a determination by the jury of whether it did or did not believe his testimony.
A criminal defendant is not entitled to a jury totally ignorant of the facts of a case, and he or she is not entitled to a perfect trial, but he or she is entitled to a fair trial. Lee v. State, 343 Ark. 702, 38 S.W.3d 334 (2001); Beed v. State, 271 Ark. 526, 609 S.W.2d 898 (1980). As noted in Franklin v. State, 251 Ark. 223, 471 S.W.2d 760 (1971), it is an unpleasant duty to grant a new trial where evidence is so clear that someone has committed a crime. In the present case, it is clear that someone was about to manufacture methamphetamine, and likely it was a joint venture. However, constitutional rights must be protected for the benefit of all of us. This case should be reversed and remanded for a new trial.
The evidence seized from the car and introduced at trial were the following items: (1) A plastic Wal-Mart bag containing a plastic orange juice bottle containing white pills; (2) A torn Actifed package that was inside the orange juice bottle; (3) Two bottles of Heet contained in the same Wal-Mart bag; (4) A bottle of propane also contained in the same Wal-Mart bag; (5) Two Wal-Mart receipts from two different stores; (6) A Marlboro box containing white pills; (7)A bottle of propane; and (8) Twenty-five feet of clear tubing.