specially concurring.
T1 I coneur. The fact that Section 2413 may be fraught with the risk of being unfairly applied at trial-and I believe it is-does not make it unconstitutional as written.
T2 The majority opinion clearly requires trial courts to undertake a rigorous analysis of the propensity evidence proffered under Section 2418 to determine whether its admission would fail the overarching balancing test of Section 2408 and violate the due process requirement of fundamental fairness. We must assume those courts will follow the law. Any showing to the contrary must be judged future case by future case.
CHAPEL, J., dissenting.
11 A person should only be convicted by evidence of the crime with which he is charged.1 This is a bedrock principle of American jurisprudence, and this Court has called it fundamental. 2 The State's case must stand or fall based on the evidence of the crime charged, not on evidence that the defendant may have committed a crime at some other time, or against some other person. Generally speaking the State may not prove its case by showing that a person has committed and is inclined to commit similar crimes, and thus probably committed the *789crime charged. For this reason, we do not admit other crimes evidence which merely shows that a defendant has a propensity to commit bad acts. Under limited cireum-stances other crimes evidence may be appropriate, but only as far as it addresses an aspect of the crime charged.3
T2 This rule creates tension, particularly in cases involving sex crimes where the defendant, like Horn, commits the same or similar crimes over several years. A jury may find the evidence of these other crimes compelling proof that the defendant committed the charged crime, and the State naturally wants jurors to hear it. When dealing with sexual predators it is tempting to loosen the restrictions on evidence so jurors can hear about this propensity to commit sex crimes even where the other crimes have no connection with the charged crime. Over time prosecutors have continually attempted to introduce this kind of evidence.
13 Several years ago, responding to the increased use of this evidence in trials, this Court found that greater latitude in presenting other crimes evidence was appropriate in sex offense cases. 4 However, in determining appropriate evidentiary rules, this Court has the advantage of time. After reviewing several years of trials which allowed greater latitude and admitted (otherwise inadmissible) evidence of other crimes, we concluded in James v. State that this modification to the standard rules of evidence was unworkable in practice.5 We found that the standard evi-dentiary rules, prohibiting admission of evidence which merely shows propensity for sex offenses rather than bearing directly on the charged crime, better protected the rights of the defendant and the State and provided for a fair trial.
T4 In response to this reasoned decision, based on experience and our review of actual cases in which the use of greater latitude in admitting evidence did not achieve the fairness to which every eriminal trial must aspire, the Legislature changed the Evidence Code to resurrect the unworkable model. Within a few months after James was handed down the Legislature provided in Title 12, Section 2418 that, in sex offense cases, evidence that the defendant has committed other sex offenses is admissible and "may be considered for its bearing on any matter to which it is relevant." 6 That last clause is particularly illuminating, because it does not require that the evidence of the other sex crimes be relevant to any aspect of the charged crime, other than to show a propensity to commit that type of crime.
T5. I emphasize this clause because it skews the entire majority discussion of Horn's constitutional claims. Relevant evidence is "evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence."7 Section 2413 provides that, where sex offenses are concerned, other crimes evidence need not have any connection to the charged offense-that is, it need not be relevant as defined in Section 2401. From the outset Section 2418 assumes that, in these cireumstances, propensity evidence is appropriate and relevant in and of itself although it has no connection to the charged crime. I believe the question posed by the statute and by this case is whether that assumption is constitutional, and I conclude it is not. The majority fails to address this question at all.
T6 The majority opinion takes as a given the relevance of Section 2413 other crimes evidence. The statute assumes that certain propensity evidence, otherwise inadmissible because it is propensity evidence and thus irrelevant, is admissible when a sexual assault is charged. The majority also assumes this propensity evidence is relevant, because the statute says it is, even though it is not relevant or admissible under the traditional evidence code provisions. The majority's de*790fense of this evidence assumes that propensity evidence should be and is relevant to prove that a defendant may commit other sex offenses. The majority relies on Tenth Circuit cases which state that "evidence of other sexual assaults is highly relevant to prove propensity to commit like crimes." 8 This, of course, is precisely what Oklahoma law has always prohibited.
17 Horn was tried after Section 2418 took effect. As part of the State's case-in-chief prosecutors introduced evidence that Horn had committed or admitted to sex offenses other than the thirty separate counts charged in the Information. This evidence was admitted under the new statutory codification of the discredited "greater latitude" rule. On appeal, Horn claims that admission of this evidence violates his rights to equal protection and due process: because he is charged with sex offenses, otherwise inadmissible evidence may be used against him that could not be used against defendants charged with other criminal offenses. To resolve this question this Court must decide whether to stand by our decision in James. I disagree with the majority's decision to abandon James in favor of the newly enacted statute. I believe this statutory crumbling of the barriers against other crimes evidence violates both due process and equal protection.
18 The statute's only purpose is to explicitly allow propensity evidence in sexual assault cases, merely to show that a defendant is likely to commit similar crimes. The majority admits this, but finds that this poses no problem because Section 2418 restates Federal Rule of Evidence 418(a). In the absence of any United States Supreme Court ruling on the issue, the majority relies on opinions from various lower federal courts which find that Rule 418(a) is constitutional. That is, rather than follow well-settled Oklahoma law, the majority prefers to rely on federal law supporting its position that propensity evidence in sex offense cases is proper and should be admitted. As the majority opinion itself notes, its author dissented in James. While acknowledging that Oklahoma's history of admitting propensity evidence "is ambiguous at best",9 the majority author now is taking advantage of federal law interpreting a federal rule in order to confirm his previous dissenting view as the law in Oklahoma.
I 9 The majority concludes that Horn's due process rights are not violated by Section 2418. In doing so the majority narrowly restricts the fundamentals of due process to notice and the opportunity to be heard. I have disagreed with this narrow formulation in the past and continue to do so.10 This case, and this statute, require this Court to exercise its judgment upon "interests of society pushing in opposition directions." 11 As I discuss below, as long as irrelevant propensity evidence is admitted against a defendant, the fact that he has notice of and an opportunity to be heard regarding that evidence does not cure the due process violation.
{10 The majority ultlmately finds that Section 2413 does not violate due process because the statute provides that the new rule "shall not be constrained to limit the admission or consideration of evidence under any other rule"12 The majority reasons that this language ensures that "relevant propensity evidence" must be treated like other relevant evidence, subject to weighing its probative value versus its prejudice under *791other Evidence Code provisions.13 The majority concludes that, as certain procedural safeguards apply to propensity evidence in sex offense cases, due process is preserved. The procedural safeguards the majority finds sufficient are notice, an opportunity to be heard, and the possibility that propensity evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, misleading the jury, undue delay, need-. less presentation of cumulative evidence, or unfair and harmful surprise.14 I disagree.
{11 I believe that convicting someone on the basis of evidence showing he has a propensity to commit the type of crime charged is fundamentally unfair and violates fundamental conceptions of justice.15 The State must be content with presenting evidence of the charged crime, plus any other crimes evidence which is admissible because it has a direct bearing on commission of the charged crime. Anything further, as allowed by Seetion 2418, violates the community's sense of fair play and deceney,"16 and fails to adequately protect the rights of persons charged by the authorities with committing a crime.17 I believe the use of propensity evidence creates a constitutionally unacceptable risk that a defendant will be convicted because he is likely to commit a particular type of crime, rather than because the evidence showed he actually did commit the crime charged. In the case of Section 2418 propensity evidence, this risk is not mltlgated by the procedural safeguards the majority finds comforting, because those safeguards cannot protect against it. This is readily apparent if one rejects the assumption, codified in the statute, that propensity evidence is admissible. If it is not, then no amount of procedural safeguard can blunt its harm.
12 I also find that Section 2413 violates the Equal Protection Clause. The Legislature may enact laws which affect citizens differently, as long as those classifications are rationally related to the achievement of the State's goals.18 However, the Legislature may not enact a statute which impermis-sibly interferes with a defendant's exercise of a fundamental right or operates to the peeu-liar disadvantage of him as a member of a suspect class, or which is not rationally related to a legitimate state interest.19 The latter category applies here. Such legislation cannot be arbitrary, the grounds for the different classifications must have a fair and substantial relation to the legislation's purpose, and similarly situated persons must be treated alike.20 The connection between the statute's classification and its objective is vital because it “gives substance to the Equal Protection Clause." 21 Statutory discrimination "will not be set aside if any state of facts reasonably may be conceived to justify it." 22 The defendant has the burden to prove there is no rational basis for the statutory classification.23 - Usually, if a law advances a legitimate government interest it will be sustained, even if its rationale is tenuous, the law seems unwise, or it dlsadvantages particular groups of citizens-but the law cannot have the purpose of disadvantaging the group bearing its burden.24 That is exactly *792what Section 2413 does, by allowing propensity evidence against sex offenders which would not be admitted against other defendants.
18 I disagree with the majority's finding that Section 2413 advances a legitimate state interest in prosecuting sex offenses. The State certainly has a legitimate interest in convicting sex offenders. However, the State successfully convicted sex offenders for years without subjecting them to a different, and unconstitutionally looser, standard of admissible evidence than other defendants. There is absolutely no support in Oklahoma case law for any claim that sex offenses cannot be proved without recourse to otherwise inadmissible other crimes evidence.
T 14 The majority relies on a footnote in a Seventh Circuit case which states the federal rules were engcted to protect the public, noting that a history of similar offenses is probative for child molesters because it shows an unusual disposition not present in ordinary people.25 The majority statés that because the Legislature enacted Section 2413, it "determined that evidence of other similar crimes involving sexual assault and child molestation was probative of a defendant's propensity to commit such crimes." 26 This, again, fails to address the equal protection claim unless one assumes that propensity evidence is admissible, and further assumes that it is relevant even though it has no connection to the charged crime. The majority does both. Of course, if one assumes the statute's propensity provision is constitutional without analyzing the issue, one will find there is no constitutional violation. That is what the majority has done.
115 After finding no constitutional violations, the majority admits that the federal decisions on which it relies consistently hold that under the federal rules this propensity evidence is only admissible where specific procedural - requirements - are - followed. While acknowledging those requirements, without which the federal courts would not have found the federal rules constitutional, the majority states that Oklahoma state courts need not adhere to them. Instead, the majority encourages trial courts to consider several factors before admitting the evidence, hold a pre-trial hearing where a defendant objects to the evidence, and make a record of the court's consideration of the enumerated factors. The bulk of these factors go to the Section 2408 evidentiary code protections, involving proof of the propensity evidence, its relation to a material fact and how disputed that fact is, if there is less prejudicial evidence available, and whether it is likely the evidence will distract jurors or contribute to an improper verdict. Of course, these factors are worthless unless you assume propensity evidence should be admissible to show that a person is likely to commit similar crimes-without that assumption, it is not relevant to any material fact which must be proved at trial, since it has no connection to the charged crime. In addition, the record contains no such findings here and does not indicate every factor the trial court considered in making its finding that the propensity evidence was admissible. Even if one believes trial court consideration of these factors alleviates the constitutional problems (and I do not), there is no reason to find from the record that Horn had the benefit of this consideration when Section 2413 propensity evidence was admitted against him. Even using the majority's own reasoning, admitting this evidence against Horn without considering these factors on the ree-ord was error.
T16 In addition to the inadmissible propensity evidence, the State presented evidence that Horn had committed the charged crimes. One might be tempted, under those cireumstances, to find the error in admitting propensity evidence was harmless. I cannot do so. As I have stated before, the issue before this Court is, as always, not whether a defendant is guilty but whether he has received a fair trial.27 Horn was convicted in part by inadmissible evidence introduced un*793der an unconstitutional statute. I fail to see how that procedure can 'be described as fair and I do not find that it was harmless. -I dissent. 4
. See, e.g., Welch v. State, 2000 OK CR 8, 2 P.3d 356, 365; Bryan v. State, 1997 OK CR 15, ¶ 33, 935 P.2d 338, 356; Burks v. State, 1979 OK CR 10, 594 P.2d 771, 772.
. Roulston v. State, 1957 OK CR 20, 307 P.2d 861, 867.
. - Burks, 594 P.2d at 772.
. Myers v. State, 2000 OK CR 25, 17 P.3d 1021, 1029-30. _
. James v. State, 2007 OK CR 1, 152 P.3d 255, 257.
. 12 O.S.Supp.2007, § 2413(A). In Section 2414, this was extended to crimes involving child molestation.
. 12 0.$.2001, § 2401.
. United States v. Enjady, 134 F.3d 1427, 1431 (10th Cir.1998). See also United States v. Benally, 500 F.3d 1085, 1089-90 (10th Cir.2007). The Tenth Circuit, and the other federal cases cited by the majority, rely on Congressional legislative history for these and similar pronouncements. There is no Oklahoma legislative history before this Court and, of course, no evidence in the record to support the suggestions that propensity evidence is so accurate a predictor of future behavior that it bears special relevancy in sex offense cases.
. Op. at 783-84.
. Wallace v. State, 1995 OK CR 19, 893 P.2d 504, 518-19 (Chapel, V.P.J., specially concurring) (listing fourteen separate due process requirements found in various United States Supreme Court cases, to illustrate the variety of ways in which due process may require more than the basics of notice and opportunity to be heard).
. Rochin v. California, 342 U.S. 165, 171, 72 S.Ct. 205, 209, 96 L.Ed. 183 (1952).
. 12 0.S.$upp.2007, § 2413(C).
. Op. at 784. The majority again relies on Enjady, 134 F.3d at 1432-33, and Benally, 500 F.3d at 1090.
. 12 0.$.2001, § 2403.
. Dowling v. United States, 493 U.S. 342, 353, 110 S.Ct 668, 674, 107 L.Ed.2d 708 (1990).
. Rochin, 342 U.S. at 173, 72 S.Ct. at 210.
. Chambers v. Florida, 309 U.S. 227, 236, 60 S.Ct. 472, 476-77, 84 L.Ed. 716 (1940).
. Romerv. Evans, 517 U.S. 620, 631, 116 S.Ct. 1620, 1627, 134 L.Ed.2d 855 (1996); Hatch v. State, 1996 OK CR 37, 924 P.2d 284, 289.
." Trim v. State, 1996 OK CR 1, 909 P.2d 841, 844; Clayton v. State, 1995 OK CR 3, 892 P.2d 646, 654.
. Romer v. Evans, 517 U.S. at 632, 116 S.Ct. at 1627; Hatch, 924 P.2d at 289; Crawford v. State, 1994 OK CR 58, 881 P.2d 88, 90-91.
. Romerv. Evans, 517 U.S. at 632, 116 S.Ct. at 1627.
. McGowan v. Maryland, 366 U.S. 420, 426, 81 S.Ct. 1101, 1105, 6 L.Ed.2d 393 (1961).
. Wackerly v. State, 2000 OK CR 15, 12 P.3d 1, 17.
. - Romer v. Evans, 517 U.S. at 632-33, 116 S.Ct. at 1627.
. United States v. Hawpetoss, 478 F.3d 820, 824 n. 7 (7th Cir.2007).
. Op. at 786.
. Flores v. State, 1995 OK CR 31, 899 P.2d 1162, 1165 n. 5 (Chapel, V.P.J., specially concurring); Wallace, 893 P.2d at 518 (Chapel, V.P.J., specially concurring).