dissenting. The thesis of the plurality opinion is that: (1) the evidence that Mr. Lindsey allowed his daughter to develop trenchfoot is evidence of abuse; (2) evidence that Mr. Lindsey raped his daughter is evidence of abuse; (3) evidence with respect to the trenchfoot charge is relevant to the rape charge because it shows a propensity on the part of Mr. Lindsey to abuse his child. That is precisely what is prohibited by Ark. R. Evid. 404(b). It is the result sought to be prevented by Ark. R. Crim R 22.2(a) which gives a defendant the right to a severance when two offenses are joined for trial solely on the ground that they are of the same or similar character.
Prior to the advent of modern joinder and severance rules, based on the ABA Standard cited below, the courts struggled with the issue of prejudice in a single prosecution of multiple offenses. The long since discredited “simple and distinct” rule attributed to Judge Learned Hand dealt only with the question whether jurors would be confused by evidence of more than one offense being presented. We have come a long way. M. Berger, Other Crimes Evidence: A Unified Approach to Severance and Admissibility, 45 Brooklyn L. Rev. 1117 (1979). The problem is solved by the two rules cited above.
Rule 404(b) provides:
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.
The plurality opinion mercifully does not attempt to show that one of the examples used in the rule was present in this case. It depends on the general “other purposes” language of the rule. The instances in which we have gone beyond the examples stated in the rule are those in which there is evidence of multiple sex offenses.
In Clay v. State, 318 Ark. 550, 886 S.W.2d 608 (1994), we held that five alleged sex offenses, charged against Mr. Clay, each involving a separate, unrelated young woman, were improperly joined. We recognized that we have been liberal in permitting, the joinder of sex offenses when they involved repeated offenses against the same child or occurred in one household. See Free v. State, 293 Ark. 65, 732 S.W.2d 452 (1987) (showing a proclivity toward a specific act with a person or class of persons with whom the accused has an intimate relationship).
The questionably liberal approach with respect to joinder of sex offenses is nothing new. It was discussed thoroughly in Slough & Knightly, “Other Vices, Other Crimes,” 41 Iowa L. Rev. 325, 333-334 (1956), quoted in 2 Weinstein’s Evidence, p. 404-80 (1988). It has, however, to do only with joinder of sex offenses, based upon a supposed irresistible and warped biological instinct, and not joinder of sex offenses and other offenses.
In Clay v. State, supra, we cemented the relationship in this jurisdiction between Rule 404(b) and Ark. R. Crim. R 22.2(a). We cited the Commentary to § 2.2(a) of the ABA Standards Relating to Joinder and Severance, Approved Draft and pointed out that if an accused were prosecuted separately on each charge as to which he had the right of severance, the evidence of the other crime(s) would not be admissible under Rule 404(b).
To say evidence that Mr. Lindsey was guilty of endangering the health of his child by allowing her to contract trenchfoot is relevant to the charge that he raped her can only be based upon the contention that it demonstrates he is a bad man, a person of bad character, or a person with a propensity to commit one crime because he has committed another. The dissenting opinion in Clay v. State, supra, argued that joinder should have been allowed because under Rule 404(b) the evidence of each of the separate sex offenses would have been admissible in each of the other cases because it showed the “propensity” to commit the crime. Again, that is what the rule disallows.
It makes no sense to give a criminal defendant the absolute right to sever offenses in order to prevent jurors from being unduly influenced by evidence of the commission of crime “A” in the consideration whether the defendant was guilty of crime “B” and then to allow evidence, in the prosecution of crime “B,” that the defendant committed crime ‘A.”
Mr. Lindsey did not open the door to character evidence. Here is how the testimony in question appears in the record:
BY MR. IRWIN [Defense Counsel]:
Q. Mr. Tallent [County SCAN Director], did you discover that a court in this state had placed these children with Mr. Orville Lindsey?
A. Excuse me?
Q. Did you discover that a court in the State of Arkansas had placed these children in the custody of Mr. Lindsey?
A. I had been told by Mr. Lindsey and Mrs. Lindsey in an interview that they had custody of the children.
Q. So, that’s how you know it?
A. Yes, sir.
Q. What about the mother of these children? Did she tell you they were taken from her by a court and put with Mr. Lindsey?
A. I believe that’s what she said that he had custody of her or of the children.
Q. But — and put in there by a court?
A. Yes, sir.
Q. And, when that happens does the court determine whether or not a person is a fit parent?
A. I don’t really know the proceedings of the Chancery Court. I assume that that is one of their concerns.
Q. All right.
BY MR. IRWIN: That’s all.
RE-DIRECT EXAMINATION
BY MR. KENNEDY [Prosecutor]:
Q. When custody is removed through the process you’ve just described is that by court order?
A. Yes, sir, that’s the only way it can be.
Q. Before custody is taken from a natural parent and placed with the Department of Human Services is there an adjudication that the natural parent is not a fit parent?
BY MR. IRWIN: I object, Your Honor. That’s not the only reason. In this particular case the father was in jail.
BY MR. KENNEDY: Your Honor, he opened the door.
BY THE COURT: That’s — that doesn’t state an objection.
BY MR. IRWIN: I objected.
BY THE COURT: That’s something you can bring out by argument or examination of the witness.
BY MR. IRWIN: All right. I’ll just ask him.
BY THE COURT: Go ahead.
A. Would you repeat your question, please sir?
Q. Before custody is placed in the Department of Human Services is there a necessity of an adjudication that the natural parent or custodial parent is not a fit parent?
A. Yes, sir.
BY MR. KENNEDY: Nothing further.
RECROSS EXAMINATION
BY MR. IRWIN:
Q. Now, are you telling the Court that in this case there was an adjudication in this case that this man was not a fit parent or simply that he was in jail and couldn’t take care of the child? You had — you had a —you had a child service case protective order for the children, did you not?
A. We also have an adjudication order date June 29th of 1993, that specifically states that the Court — number four, the Court finds that [the children] are dependent-neglected as defined in the Arkansas Juvenile Code and that the allegations in the petition are true and correct.
Q. Yes, sir; and the definition of dependent-neglected in this particular situation was that their mother didn’t have them and the father was in jail and there wasn’t anybody to take care of them, was there?
A. No, sir. The reason that the children were found dependent-neglected was because of the sexual abuse allegations.
Q. Oh, that’s what that —
A. Yes, sir.
Q. — was, the allegations?
A. Yes, sir.
Q. That’s what we are trying today to see whether it’s true or not?
A. I assume so.
Q. Okay.
■ The initial questions asked by Mr. Lindsey’s counsel went to the placement of custody of the child with Mr. Lindsey rather than his wife. The first reference to fitness as a parent came with the question, “And, when that happens does the court determine whether or not a person is a fit parent?” The term “a person” in the context of the question could have referred to either parent; more particularly it could have referred to a determination that the child’s mother was unfit. The remainder of the questions by both parties had to do with removal of the child from Mr. Lindsey. In that series he was clearly on the defensive, attempting to show that the court had not determined him to be an “unfit parent” which is a far cry from presenting evidence of his good character. No door was opened.
Under our rules, Mr. Lindsey is entitled to be tried for one crime at a time.
I respectfully dissent.
Holt, C.J., and Dudley, L, join in this dissent.