dissenting. I respectfully dissent. The sole question on appeal is whether the trial court abused its discretion by admitting testimony concerning other crimes committed by appellant Andrew Sasser against a convenience store operator some four years earlier to show modus operandi and intent. The trial court committed error in allowing this evidence under A.R.E. 404(b), and I would reverse and remand for a new trial.
Arkansas Rule of Evidence 404(b) provides as follows:
Other Crimes, Wrongs, or Acts. Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show that he acted in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident.
For “other crimes” evidence to be admissible, it must have independent relevancy to the offense for which the defendant is standing trial, but it need not be tied to the list of permissible purposes delineated in the rule. Neal v. State, supra; see also White v. State, 290 Ark. 130, 711 S.W.2d 784 (1986). Admission of such evidence for proving a method of operation has been upheld by this court as a permissible exception to Rule 404(b). See Diffee v. State, 319 Ark. 669, 894 S.W.2d 564 (1995); Thrash v. State, 291 Ark. 575, 726 S.W.2d 283 (1987). Once the trial court determines that the evidence is independently relevant, it must then perform the necessary balancing under A.R.E. 403, which provides that “although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice.”
Although the lower court properly examined the evidence on the basis of both rules, and even though the method of operation (modus operandi) as well as proof of intent or plan is a legitimate basis for introducing evidence of other crimes, the trial court need not have balanced the evidence under Rule 403, as Ms. Carter’s testimony was not relevant under any of these categories.
This court recently examined the admission of other crimes for the purpose of establishing a method of operation in Diffee v. State, supra. To introduce other unrelated acts to show a method of operation, two requirements must be met: “(1) both acts must be committed with the same or strikingly similar methodology; and (2) the methodology must be so unique that both acts can be attributed to one individual.” Diffee v. State, 319 Ark. at 675, 894 S.W.2d at 567 (citing Frensley v. State, 291 Ark. 268, 274, 724 S.W.2d 165, 169 (1987)); See also Edward J. Imwinkelreid, Uncharged Misconduct Evidence, §§ 3.10 to 3.12 (1984). Neither requirement was met in this instance.
The general purpose of showing a method of operation is to identify the accused as the perpetrator. See Diffee v. State, 319 Ark. at 675, 676, 894 S.W.2d at 568 (citing Imwinkelreid, supra). Here, Sasser stipulated to a number of facts involving the homicide, including the fact that he caused Ms. Kennedy’s death. There was no issue as to the identity of the perpetrator, and thus there was no necessity for proving a method of operation. Moreover, the incident involving Ms. Carter fails to meet the required elements for establishing modus operandi.
As noted by Professor Imwinkelreid, and as cited in Diffee, supra, the degree of similarity between the two incidents must be very strict in order to establish identity. Granted, the unrelated acts in this case share several facts in common, as both victims were convenience store clerks, both were attacked late at night, and both were beaten and disrobed. Even so, the similarity between the facts surrounding the commission of the two crimes, one of murder and the other of second degree battery, rape and kidnapping arises to the high degree of similarilty required for the purpose of showing a method of operation.
The second requirement, uniqueness of methodology, is clearly absent. For purposes of establishing a method of operation, the methodology used by the perpetrator must be so unique that it independently identifies the accused as the perpetrator. Courts and commentators have stated the methods must be “bizarre,” “highly characteristic,” “distinguishing,” . . . “exceptional,” “a fingerprint,” and other such terms as would single out one person as being the unmistakable assailant. Diffee v. State, 319 Ark. at 677, 894 S.W.2d at 568 (citing Imwinkelreid, supra.); See also Frensley v. State, supra. This case is distinguishable from Thrash v. State, supra, upon which the trial court relied in making its ruling. In that case, the defendants used wigs and particular disguises to rob a liquor store and a truck driver. The disguises provided an element of uniqueness that marked the defendants as the perpetrators of both crimes. Here, there is nothing unique or distinctive about the way Sasser carried out the crimes so as to justify the admission of the previous incident for purposes of establishing a method of operation.
Lastly, admission of the evidence to show plan or intent was also error, for this court cannot logically assume that, because Sasser had previously committed the offenses of second degree battery, rape, and kidnapping involving a convenience store clerk, that this constituted evidence of a plan or intent on his part to commit the murder of Ms. Kennedy. The facts in this case are unlike those in Brenk v. State, 311 Ark. 579, 847 S.W.2d 1 (1993), where the defendant was accused of killing his wife, dismembering her body, and leaving her torso in a cooler, which was found floating in Lake Norfolk. At trial, Brenk’s former wife was allowed to testify that Brenk had tried to kill her and threatened her that he would kill her, cut her body to pieces, and scatter the remains. We held that, “given the similarity of the circumstances of [the two deaths], and the specific threats made to Jackie Brenk, although several years earlier,” the threats were admissible to show Brenk’s intent, plan; and identity. Brenk v. State, 311 Ark. at 585, 847 S.W.2d at 6. In particular, we upheld the admission of testimony in Brenk due to the similarity of the circumstances between what Brenk told his ex-wife and what actually happened to his wife. Id.
Here, the majority is wrong in concluding that there was sufficient similarity of circumstances or threats to permit Ms. Carter’s testimony into evidence to show that Sasser had a plan or intent to murder Ms. Kennedy. Sadly enough, convenience stores, which are quite often open all night, are staffed by employees who are subject to robbery, attack, sexual assault, rape, and death. The victims are often threatened with death by their attackers in an attempt to ensure their silence. Neither Sasser’s threats nor his actions, as previously discussed, were carried out under compellingly similar circumstances to support the inference of an intent to kill Ms. Kennedy. In my opinion, admission of the evidence on this basis was prejudicial error which necessitates a retrial.
Dudley and Newbern, JJ., join this dissent.