dissenting. The evidence of prior shootings should not have been admitted and, for this reason, I respectfully dissent.
The majority premises its holding as to the admissibility of the shooting incidents on the fact that it was properly admissible to rebut damaging inferences on cross-examination. First of all, this ignores the fact that the evidence of Jarrett’s shooting of Earl and Mary was first brought out, not in rebuttal, but in the State’s case-in-chief. Second, although we have held the list of exceptions in this rule is not exhaustive, see White v. State, 290 Ark. 130, 717 S.W.2d 784 (1986), and although the testimony regarding the previous shootings may have been relevant to various collateral issues in the case, I do not find it was relevant, either in time or in nature, to the crimes with which Jarrett was charged.
In White, we reasoned that prior acts of violence, like prior acts of child abuse and incest, are admissible to show a propensity to commit the particular sort of crime in question with the same person or class of persons with whom the accused shares an intimate relationship. There, however, the admitted evidence consisted of testimony that the defendant severely beat his wife just two weeks prior to his murdering her in the same manner. Similarly, in Sterling v. State, 301 Ark. 603, 786 S.W.2d 114 (1990), we upheld the admissibility of evidence that, as recently as three days before shooting his wife, the defendant threatened to kill her with a gun and beat her. The evidence was necessary to prove premeditation and deliberation for first degree murder. See also Limber v. State, 264 Ark. 479, 572 S.W.2d 402 (1978)(evidence of physical abuse of one child in the home admitted to prove intent and lack of mistake or accident in the beating death of that child’s sibling); Rudd v. State, 308 Ark. 401, 825 S.W.2d 565 (1992) (prior theft and burglary convictions admitted to show defendant’s intent to commit burglary and to counter defense of mistake in entering home).
Evidence that Jarrett once shot the victim and Mary Jarrett, some eight or nine years ago, was, in no way, related to the incidents of rape and the specified battery charge nor was it necessary to show Jarrett’s intent. The intent was obvious in the nature of the crimes committed. Furthermore, the State failed to elicit clear testimony as to when the shootings occurred and even whether they were part of one or separate incidents. The only connection in time was a single statement by Earl that the rapes began occurring ten years ago, two years prior to when he claimed to have been shot in the foot. (We note the information confined the charges to a date three months prior to trial for battery and to “within the past three years” for rape.)
The testimony was simply irrelevant to the crimes at issue and could only have served to show Jarrett “acted in conformity therewith.” Rule 404(b). It follows that the prejudice to Jarrett outweighed the probative value of the evidence, and, for these reasons, I would grant Jarrett a new trial.
I also take issue with the concurring opinion filed by Justice Brown. Evidence of the shootings is not admissible under Rule 403. Rule 403 pertains to the exclusion of relevant evidence by weighing its probative value against the charge of unfair prejudice. Here, again, I say the evidence of the shootings, some eight years prior to the charges in question, is not relevant in time, nor in nature.
For these reasons, I would reverse and remand for retrial.
Dudley and Newbern, JJ., join in this dissent.