Phavixay v. State

Paul E. Danielson, Justice.

Appellant Chor J. Phavixay appeals from his conviction for delivery of methamphetamine, a violation of Ark. -Code Ann. § 5-64-401 (Repl. 2005), and his sentence to 384 months’ imprisonment. His sole point on appeal is that the circuit court erred in admitting evidence of a prior crime, in violation of Rule 404(b) of the Arkansas Rules of Evidence. Alternatively, Phavixay submits that the evidence of the prior crime was inadmissible under Rule 403 of the Arkansas Rules of Evidence due to undue prejudice, waste of time, and confusion of the issues. Because we agree that the admission of evidence of a prior crime violated Rule 404(b), we reverse and remand.

The record reveals the following facts. On February 16, 2007, the State filed a motion to introduce evidence at trial pursuant to Rule 404(b) of the Arkansas Rules of Evidence. Phavixay objected, and the matter was addressed during the preliminary proceedings of Phavixay’s jury trial on March 6, 2007. The State sought to admit evidence of an alleged prior crime of Phavixay, which occurred on August 14, 2006. Phavixay’s conviction in the instant case stemmed from events that occurred on August 24, 2006. Phavixay objected, arguing that because the State had direct proof as to the crime which allegedly occurred on August 24, there was no independent relevance for the prior crime other than to prejudice him and provide evidence of his bad character.

The evidence on which the State relied for Phavixay’s conviction was the testimony of a police informant, Michael Bingham, and Detective Darrell Craghead. The two witnesses were able to establish that Bingham worked along with the Fort Smith Police Department and Detective Craghead by engaging in a controlled buy of narcotics from Phavixay on August 24, 2006. However, the State sought to also admit evidence of a separate controlled buy from Phavixay performed by Bingham, which allegedly occurred on August 14, 2006, ten days prior to the controlled buy for which Phavixay was being tried. The circuit court allowed the evidence of the prior crime to be admitted during the trial with a limiting instruction.

Phavixay was found guilty of delivery ofmethamphetamine and filed a timely notice of appeal on March 20, 2007. The court of appeals certified this case to our court on January 29, 2008, as one involving an area of law needing clarification, and we accepted certification on January 31, 2008. We turn then to the instant appeal.

Phavixay asserts that the circuit court erroneously allowed the State to introduce evidence of a prior bad act or crime as the evidence failed to meet the requirements of Rule 404(b) because it was not independently relevant. He further argues that even if the evidence were somehow relevant, it nevertheless should have been excluded under Arkansas Rule of Evidence 403 because its probative value was substantially outweighed by the danger of unfair prejudice. The State avers that the circuit court did not abuse its discretion in allowing the evidence to be introduced as it was relevant to explain the relationships of the parties and the ongoing drug operation, and it was probative because of the close proximity in time to the crime for which Phavixay was convicted.

Under Arkansas Rule of Evidence 404(b), any evidence of a person’s 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. See Ark. R. Evid. 404(b) (2007). However, the evidence may be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident. See id.

The admission or rejection of evidence under Rule 404(b) is committed to the sound discretion of the circuit court, and we will not reverse absent a showing of manifest abuse of that discretion. See Lamb v. State, 372 Ark. 277, 275 S.W.3d 144 (2008). Evidence offered under Rule 404(b) must be independently relevant to make the existence of any fact of consequence more or less probable than it would be without the evidence. See id. In other words, the prior bad act must be independently relevant to the main issue, in that it tends to prove some material point rather than merely proving that the defendant is a criminal. See id.

In Smith v. State, 314 Ark. 241, 862 S.W.2d 234 (1993), the defendant was charged with having sold cocaine to an undercover officer and had three other cases pending in which he had been charged with past drug deals to the same officer. In the trial on his cocaine sale, the prosecutor asked the officer if he had, on specific dates, seen the defendant before, to which the officer answered affirmatively. See id. There, we held that Rule 404(b) was not violated because the actual crimes, wrongs, or bad acts had not been admitted into evidence. See id. The instant case differs from Smith because, here, evidence of a prior controlled buy from Phavixay was actually admitted into evidence through the testimony of the police informant.

While the two controlled buys from Phavixay were similar and in close proximity of one another, we do not conclude that the first buy was independently relevant to the controlled buy on August 24. While this court has allowed evidence of prior crimes to establish modus operandi, the general purpose of proving a method of operation is for purposes of identification. See Diffee v. State, 319 Ark. 669, 894 S.W.2d 564 (1995). The record does not reflect where identity was an issue at trial. Furthermore, for the admission of modus operandi evidence, the methodology must be so unique that both acts can be attributed to one individual. See Frensley v. State, 291 Ark. 268, 724 S.W.2d 165 (1987). The record reveals the controlled buys from Phavixay were two fairly routine drug transactions and fails to show a unique methodology.

This court has also admitted prior drug offenses on several occasions to show a defendant’s intent. See Owens v. State, 325 Ark. 110, 926 S.W.2d 650 (1996) (holding that evidence about Owens’s previous drug use and manufacture was admissible where intent was disputed at trial); Neal v. State, 320 Ark. 489, 898 S.W.2d 400 (1995) (holding that evidence of Neal’s past drug purchases were admissible in light of his defense that he had no knowledge that drugs were in his home); Scroggins v. State, 312 Ark. 106, 848 S.W.2d 400 (1993) (holding that evidence of Scroggins’s previous drug sale was admissible to show his intent to deliver drugs in exchange for money); Lincoln v. State, 285 Ark. 107, 685 S.W.2d 166 (1985) (holding testimony regarding Lincoln’s prior drug sales was admissible during his trial on his possession-with-intent-to-deliver charge as proof of his intent). However, in the instant case, Phavixay was charged with only the actual delivery of methamphetamine. Intent was not at issue.

The defendant in Scroggins v. State, supra, was also charged with actual delivery, rather than possession with intent to deliver. While we upheld the admission of testimony about his prior drug sales to prove his intent, that case is distinguishable from the instant case because Scroggins was charged with delivery of a controlled substance in exchange for money. Scroggins would “front” the drugs to the informant without initial payment. Thus, testimony about the earlier controlled buy would have been relevant to prove his intent to receive money, at some point, in exchange for the drugs. No such issue exists in the instant case.

This court cannot perceive of any reason for the admission of Phavixay’s prior drug transaction other than to show he was a drug dealer likely to have sold drugs again on the particular date for which he was tried. This is precisely the type of evidence that Rule 404(b) was designed to exclude. For all these reasons, the decision of the circuit court is reversed, and the case is remanded for a new trial.¹

Reversed and remanded.

Corbin, Brown, and Gunter, JJ., dissent.

1 Phavixay further argued that the evidence should have been excluded under Arkansas Rule of Evidence 403; however, a Rule 403 analysis is unnecessary as the outcome of the case has been decided by this court based on Rule 404(b).