James L. Johnson, Jr. v. State of Mississippi

IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI

NO. 2014-KA-00664-COA

JAMES L. JOHNSON, JR. A/K/A JAMES APPELLANT
JOHNSON A/K/A JAMES JOHNSON, JR.

v.

STATE OF MISSISSIPPI APPELLEE

DATE OF JUDGMENT: 04/04/2014
TRIAL JUDGE: HON. JAMES SETH ANDREW POUNDS
COURT FROM WHICH APPEALED: ALCORN COUNTY CIRCUIT COURT
ATTORNEY FOR APPELLANT: JOHN R. WHITE
ATTORNEY FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL
BY: LADONNA C. HOLLAND
DISTRICT ATTORNEY: J. TRENT KELLY
NATURE OF THE CASE: CRIMINAL - FELONY
TRIAL COURT DISPOSITION: CONVICTED OF AGGRAVATED
DOMESTIC VIOLENCE AND SENTENCED
TO TWENTY YEARS IN THE CUSTODY
OF THE MISSISSIPPI DEPARTMENT OF
CORRECTIONS, WITH TEN YEARS
SUSPENDED, TEN YEARS TO SERVE,
AND FIVE YEARS OF POSTRELEASE
SUPERVISION
DISPOSITION: REVERSED AND REMANDED - 12/15/2015
MOTION FOR REHEARING FILED:
MANDATE ISSUED:

BEFORE GRIFFIS, P.J., CARLTON AND WILSON, JJ.

CARLTON, J., FOR THE COURT:

¶1. An Alcorn County jury found James Johnson guilty of committing aggravated

domestic violence by strangulation against his ex-wife, Volante Jones, on December 3, 2012.

See Miss. Code Ann. § 97-3-7(4) (Supp. 2012). In appealing his conviction to this Court,

Johnson raises the following issues: (1) whether the circuit court erred by admitting evidence
of Johnson’s prior bad acts; (2) whether the circuit court erred by not allowing Johnson to

make a sufficient proffer of the testimony he sought to elicit from Jones; and (3) whether the

State’s description of Johnson during closing arguments amounted to prosecutorial

misconduct.

¶2. Prior to Johnson’s trial, the State proffered evidence of four of Johnson’s past bad

acts. Then, during its case-in-chief, the State introduced police reports related to Johnson’s

prior bad acts and convictions for domestic violence. As reflected in the trial testimony and

the admitted offense reports, the State offered evidence of Johnson’s four prior bad acts

involving four different women and spanning a thirteen-year time period. The first incident,

which occurred in 1999, involved Johnson’s first wife, Pamela Johnson, and resulted in a

simple-assault conviction. The second incident, which occurred in 2000, involved yet

another victim, Johnson’s ex-girlfriend, Jennifer Farley, and also resulted in a simple-assault

conviction. The third incident, which occurred in 2002, involved Jones, the victim in the

instant case. Although this third incident was never prosecuted, Jones testified at trial as to

the facts surrounding the incident. The fourth incident, which occurred in 2012, involved

Johnson and Jones’s daughter. This fourth incident also failed to result in a conviction and

was instead dismissed after Johnson completed an anger-management course.

¶3. The offense reports related to Johnson’s prior bad acts contained various allegations

that Johnson engaged in other criminal conduct than just the four past bad acts the State

proffered during the pretrial hearing. The circuit court admitted into evidence Johnson’s two

prior convictions and the four police reports related to his prior offenses. In addition, the

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circuit court admitted testimony from Jones as to Johnson’s third prior bad act.

¶4. The circuit court admitted the four offense reports without determining whether, under

Rule 404(b) of the Mississippi Rules of Evidence, the State offered the additional offenses

in the police reports for proper purposes. See Welde v. State, 3 So. 3d 113, 117 (¶15) (Miss.

2009). Furthermore, the circuit court admitted the offense reports without scrutinizing

whether, under Rule 403 of the Mississippi Rules of Evidence, the probative value of the

additional allegations contained in the reports outweighed the prejudice to Johnson. See

Welde, 3 So. 3d at 117 (¶15). We therefore reverse the circuit court’s judgment and remand

this matter for further proceedings consistent with this opinion.

FACTS

¶5. Johnson and Jones met when they began taking taekwondo lessons from the same

instructor. At the time of the incident in question, Johnson possessed a first-degree black belt

in taekwondo, and Jones possessed a second-degree black belt in taekwondo. The couple

married in 2005 and had three children together during the course of their relationship. Jones

and Johnson divorced in November 2012, but they both continued to live in Corinth,

Mississippi, in Alcorn County.

¶6. A few weeks after the couple’s divorce, Johnson called Jones on December 3, 2012,

as Jones was preparing to move from her current home into a new home. Jones testified that

Johnson inquired about her activities the previous weekend. Jones responded by telling

Johnson that, if the conversation was not about the couple’s children, then she and Johnson

had nothing to discuss. Jones further testified that she then ended the phone call.

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¶7. About thirty minutes later, while Jones was cleaning out the refrigerator at her old

home, she heard Johnson ring the doorbell and let himself into the house. Although Johnson

possessed no key to the house, Jones testified that she had left the door unlocked since her

children would soon arrive home from school. According to Jones’s testimony, she was at

home alone when Johnson entered, and she had not invited Johnson to her home. Jones

further stated that she tried to ignore Johnson when he joined her in the kitchen so as not to

provoke him. However, Jones testified that, as she placed items from the freezer into bags

at her feet, Johnson grabbed the top of her hair. Jones immediately raised up in response, and

when she did, Johnson grabbed her throat with his other hand.

¶8. Jones testified that she and Johnson wrestled as she attempted to break his hold on her

throat so she could breathe. Jones denied, however, that she initiated a fight with Johnson

or made any aggressive movements toward him. Jones testified that Johnson eventually

flipped her on her back, used his weight to pin her down, and then placed his right arm

around her throat. Although she never lost consciousness, Jones stated that she felt as though

she were drowning because she could neither breathe nor speak. Jones testified that Johnson

began to hit her in the head and ask questions about her whereabouts and with whom she had

spent her time. Jones also testified that Johnson would loosen his grip for a second to allow

her to speak but would then tighten his grip again after she answered. Jones stated that the

fight finally ended because she and Johnson grew weary from the constant struggling.

Shortly after the altercation ended, the couple’s son arrived home from school. Johnson then

left the house, and once all three children arrived safely home, Jones called the police and

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reported the incident.

¶9. After the responding officer spoke to Jones and observed that her injuries appeared

consistent with those caused by strangulation, Detective Heather Glass of the Corinth Police

Department was called to further investigate the matter. Detective Glass noted that Jones’s

eyes were swollen and that her face and neck bore red marks and scratches. Detective Glass

also observed petechiae, or ruptured blood vessels, in Jones’s eyes. Based on her training,

Detective Glass believed Jones’s petechiae were likely caused by the restriction of blood

flow Jones experienced during her altercation with Johnson. While investigating the

December 3, 2012 incident between Jones and Johnson, Detective Glass learned that, over

the past thirteen years, Johnson had been involved in four prior violent acts against Jones and

three other women in which Johnson was charged as the initial aggressor.

¶10. Significant to our review on appeal, during pretrial motions, the defense moved ore

tenus to exclude any references by the State to Johnson’s purported prior bad acts or prior

misdemeanor convictions for domestic violence against Jones and the other women. In

response to the defense’s pretrial motion, the State informed the circuit court that it intended

to offer evidence of four of Johnson’s prior bad acts.

¶11. During the pretrial proffer, the State provided that Johnson’s four prior altercations

involved four different victims. The State informed the circuit court of the following facts

regarding the four prior altercations: the first altercation in 1999 involved Johnson’s first

wife, Pamela, and resulted in a simple-assault conviction; the second altercation in 2000

involved Johnson’s ex-girlfriend, Farley, and resulted in a simple-assault conviction; the third

5
altercation in 2002 involved Jones, the victim in the present case, and resulted in no

prosecution; and the fourth altercation in 2012 involved Johnson and Jones’s daughter and

was retired to the files.

¶12. The defense argued that, under Rule 404(b), evidence of other crimes and prior bad

acts must be limited in scope and offered for proper evidentiary purposes such as motive,

opportunity, intent, preparation, plan, knowledge, identity, and absence of mistake or

accident. The defense further asserted that the present case involved no such issue. After

hearing the State’s proffer and the defense’s response, the circuit court heard another pretrial

motion before ruling on the defense’s ore tenus motion in limine to suppress the evidence of

Johnson’s prior bad acts or convictions. Upon disposing of the other pretrial matter, the

circuit court heard closing argument from the parties as to the admissibility of the State’s

proffered evidence of Johnson’s four prior offenses and alleged bad acts.

¶13. In its closing argument to the defense’s ore tenus motion to suppress, the State

explained that it sought “to introduce into evidence at the appropriate time four prior offenses

or bad acts that were committed by . . . Johnson[.]” The State asserted the following details

as to the four prior bad acts:

The first one had an offense date of [May 15, 1999], in which he was
charged with aggravated assault against a[n] ex-wife, or now ex-wife, a
Pamela Dilworth, or Pamela Johnson Dilworth. . . . And he pled guilty[,] and
the State has a certified copy of the guilty—of the record entered by the court.
. . . He was originally charged with aggravated assault[,] and it was reduced to
a simple assault.

The second act is a simple assault, verbal threats, against a girlfriend
who had had a child with Mr. Johnson. The offense date was on November
11, 2000]. He pled guilty to simple assault, a misdemeanor, on [December 5,

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2000]. The [c]ourt also has a certified—also has a certified abstract of that
guilty conviction.

....

The third offense, or the third act that the State would seek to introduce
had an offense date of [July 10, 2002]. . . . [A] complaint was filed against Mr.
Johnson by the victim in this case today, Volante Jones. . . . [H]e was charged
with domestic violence. She had a swollen right eye, forehead, signs of
injuries. That charge was never prosecuted, Your Honor.

The fourth event is against his daughter[,] who was [fourteen] years old
at the time. . . . And the offense date on that was on [July 27, 2012]. We have
a disposition in that, Your Honor, in which that charge was dismissed . . .
because he attended an anger[-]management program. And when he
completed that[,] they dismissed that charge . . . .

¶14. The State informed the circuit court that it sought to introduce the evidence of

Johnson’s prior bad acts and convictions to demonstrate Johnson’s intent, motive, and plan

when he went to Jones’s home on December 3, 2012. Because Johnson raised the issue of

self-defense in voir dire and submitted a self-defense jury instruction, the State further argued

that the evidence of Johnson’s prior bad acts and convictions was relevant and admissible to

refute Johnson’s self-defense claim.

¶15. In the State’s concluding remarks on the defense’s motion in limine, the State

mentioned the following additional details related to its prior proffer of Johnson’s alleged

prior bad acts:

In the first one[,] he went to the woman’s house with a gun, 911 was
called. He went to her in the house and threatened to kill her.

The second one was a simple assault. He went to his girlfriend’s place
of employment . . . . He went there, confronted her, had a discussion,
threatened her saying[,] [“I]f you don’t stop legal proceedings in regard[] to
my child custody[”]—the child[-]custody issue they had, [“]I’m going

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to[”]—he threatened her. He pled guilty[,] and we have a[n] abstract, a
certified abstract for that.

The third offense is he went again to Volante Jones[,] and that occurred
in 2002, had a discussion, a fight broke out. He was charged with simple
assault. That was not pursued.

And then the fourth event is he struck his daughter upon the head, the
nose, the face.

It shows that he has a tendency to strike women, Your Honor. So we
would show that it shows intent, motive, plan. He always approaches the
victim, he goes there, he causes the confrontation[,] and therefore, it would not
be in self-defense . . . .

(Emphasis added). Despite the State’s mention of these additional details, the record reflects

that the State never amended its prior proffer to the circuit court. In addition, the State still

failed to inform the circuit court of all the additional criminal allegations contained in the

related offense reports. The State also failed to mention to the circuit court its intent to

introduce any law-enforcement offense reports, much less the entire contents of such reports.

¶16. In response to the State’s closing argument, the defense asserted in its closing

argument that three of the prior bad acts were too remote to be considered relevant or

probative since they occurred over ten years ago. The defense further contended that the

prejudice resulting from the evidence outweighed any probative value. After the parties’

closing arguments, the circuit court asked whether Johnson’s attorney possessed any caselaw

to support the defense’s argument on remoteness. In addition, the circuit court judge stated

that, if Johnson’s attorney were able to find caselaw prohibiting or limiting the use of prior

bad acts past a certain point in time, he would possibly reconsider the issue.

¶17. Absent such a showing by Johnson’s attorney, the circuit court judge stated:

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But in light of the arguments here today, the [c]ourt finds that . . . the State is
seeking to prove intent, motive, plan, and that it was not in self-defense. The
self-defense issue was voir dired and presented to the jury. There was also a
jury instruction prior to trial filed along those lines by the defense, and to show
a history of violence against women. For those reasons[,] the [c]ourt finds that
under Rule 404 . . . the State does bring forward a proper argument to do that.
. . . [L]ook[ing] at the balancing effect under [Rule] 401 [of the Mississippi
Rules of Evidence], I find that . . . those four [prior bad acts] are all relevant.
They are all against women. They are all where [Johnson] was [the] aggressor
and . . . went there and initiated contact, as alleged in this same case. That
does show intent, motive, lack of mistake, plan[,] and a history against women
and therefore is relevant evidence.

¶18. As reflected in the record, the circuit court conducted a Rule 403 balancing test of the

four prior altercations proffered by the State at the pretrial hearing. In so doing, the circuit

court determined that the State’s proffered evidence of Johnson’s four prior bad acts and

offenses was admissible under Rules 403 and 404(b) to show Johnson’s intent, motive, and

plan and to refute Johnson’s self-defense claim. The record reflects, however, that the

evidence later admitted at trial in the four offense reports exceeded the State’s proffer that

the circuit court considered and weighed during the pretrial hearing.

¶19. The four offense reports admitted during Johnson’s trial contained accusations that

Johnson had committed various other serious crimes not included in the State’s pretrial

proffer. After the State offered the four offense reports at trial for admission into evidence,

the circuit court conducted no evaluation of whether the State offered the contents of the

offense reports, alleging serious additional offenses, for a proper and relevant purpose under

Rule 404(b). The circuit court also failed to determine whether, as required by Rule 403, the

prejudice arising from the additional allegations in the reports outweighed the probative

value. Instead, without redacting any of the additional serious criminal allegations contained

9
in the offense reports, the circuit court admitted the entire contents of the four reports into

evidence over the defense’s previously raised and continuing objection.1

¶20. We now turn to a review of the evidence that the State admitted during Johnson’s

trial.2 As previously discussed, the State’s pretrial proffer only provided that Johnson’s first

past bad act in 1999 involved an aggravated-assault charge that later resulted in a simple-

assault conviction. At trial, however, the offense report admitted into evidence regarding

Johnson’s 1999 simple-assault conviction contained additional information.

¶21. The 1999 offense report asserted that police received a 911 call from Johnson’s first

wife, Pamela, and that the responding officers found Johnson and Pamela arguing. The

contents of the 1999 offense report further alleged that Pamela told the officers she and

Johnson were getting a divorce and that Johnson had not lived in the house for almost five

months. The record further shows that the contents of the 1999 offense report contained

Pamela’s allegations that Johnson had come over, kicked in the back door, held a gun to her

head, and threatened to kill her and burn down the house. The offense report also stated that,

when officers searched Johnson, they discovered a pistol concealed in Johnson’s pocket.

Detective Glass testified that Johnson was initially charged with aggravated assault but that

the charge was later reduced to simple assault. As the record reflects, in addition to

1
Cf. Pruitt v. State, 807 So. 2d 1236, 1239 (¶5) (Miss. 2002) (acknowledging that
documents in the case were edited to eliminate references to past crimes, bad acts, and other
irrelevant information).
2
The record reflects that the State offered into evidence three of the offense reports
during Detective Glass’s testimony. Later, through Jones’s testimony, the State offered into
evidence a fourth offense report.

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admitting the 1999 offense report, the circuit court also admitted the related simple-assault

conviction into evidence.

¶22. With regard to Johnson’s second past bad act or conviction, the State’s pretrial proffer

asserted that it sought to introduce verbal threats and a misdemeanor conviction for simple

assault. However, through Detective Glass’s trial testimony, the State offered, and the circuit

court admitted, an offense report filed in 2000 that contained claims by Johnson’s ex-

girlfriend, Farley, that Johnson came to her workplace and threatened to “do something to

her if she did not stop the legal action[] against him for child support.” The record reflects

that the contents of this second offense report also contained Farley’s assertions that Johnson

had previously acted aggressively toward her. The offense report stated that Farley wanted

to file charges because she was afraid of Johnson and wanted to keep him from harming her

or her baby. As a result of this altercation with Farley, Johnson was charged with and

convicted of simple assault. As stated, the entire contents of the second offense report, as

well as the related misdemeanor conviction, were admitted into evidence over the defense’s

continuing objection. The evidence admitted through this 2000 offense report once again

exceeded the State’s pretrial proffer of a misdemeanor conviction for simple assault and

verbal threats.

¶23. The State’s third pretrial proffer related to a past bad act of domestic violence between

Johnson and Jones, the victim in the present case. The past bad act allegedly occurred in

2002 and was never prosecuted. As previously discussed, the State introduced evidence of

this alleged past bad act through Jones’s testimony. The record reflects that the State again

11
offered the entire contents of the 2002 offense report for admission into evidence. The

record shows that the 2002 offense report alleged that officers who responded to the

domestic-violence call found Jones had sustained visible signs of abuse, including a swollen

right eye, a bump on her forehead, and a bloody right knee. The record further reflects that

Jones claimed Johnson inflicted the injuries. Jones testified at trial that she chose not to press

charges against Johnson. Even though no conviction resulted from this alleged incident, the

circuit court again allowed into evidence the entire contents of this 2002 offense report.

¶24. The fourth past bad act or conviction the State proffered during the pretrial hearing

was an alleged assault against Johnson and Jones’s daughter. The record reflects Jones’s

testimony asserting that she agreed to dismiss the charge after Johnson completed an anger-

management course. The record further reflects that the charge was, in fact, dismissed. At

trial, the State offered, and the circuit court admitted into evidence, the entire offense report.

The record shows that the offense report alleged that Jones returned home to find her

daughter with a swollen nose and a knot above her eye where Johnson hit her.

¶25. The evidence admitted during Johnson’s trial also showed that, after Jones reported

the incident charged and prosecuted in the present case, Captain Ralph Dance of the Corinth

Police Department arrested Johnson. During the State’s case-in-chief, Captain Dance

testified that he had known Johnson for years because the two had previously been neighbors.

Captain Dance further testified that he had taken taekwondo lessons at the same martial-arts

studio as Johnson and Jones.

¶26. According to Captain Dance’s testimony, Johnson voluntarily stated that he went to

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Jones’s home on December 3, 2012, to discuss his concerns regarding the couple’s children.

Johnson told Captain Dance that Jones let him into the house. Johnson explained to Captain

Dance that, during the couple’s conversation, Johnson mentioned he had contacted the

Department of Human Services (DHS) to report his concerns. Johnson further told Captain

Dance that Jones became violent at the mention of DHS and began to punch and kick him.

Johnson then told Captain Dance that he grabbed Jones around the throat and threw her to

the floor to prevent her from injuring him. According to Captain Dance’s testimony, Johnson

failed to mention any injuries or to show any visible signs of injury resulting from his

altercation with Jones.

¶27. After the State rested, Johnson testified on his own behalf during the defense’s case-

in-chief. Johnson stated that he called Jones on December 3, 2012, to discuss her behavior

over the previous weekend and to explain that he felt Jones’s conduct was not in their

children’s best interest. According to Johnson, he informed Jones that he was stopping by

her house to talk to her about her behavior and their children’s welfare. Johnson

corroborated Jones’s testimony that he rang the doorbell, entered the house, and then joined

Jones in the kitchen.

¶28. According to Johnson, Jones initiated their altercation, and he merely acted in self-

defense. Johnson admitted that Jones never actually punched or kicked him. However, he

testified that Jones grew upset and came toward him after he said he planned to contact DHS.

Johnson further testified that he and Jones began to struggle and that he put his arm around

Jones and pulled her to the floor to prevent Jones from injuring him. Johnson stated that he

13
used a chokehold to subdue Jones so that he would not have to defend himself by more

forceful means.

¶29. After considering the evidence and testimony, the jury found Johnson guilty of

aggravated domestic assault. The circuit court sentenced Johnson to twenty years in the

custody of the Mississippi Department of Corrections, with ten years suspended, ten years

to serve, and five years of postrelease supervision. Johnson then filed an unsuccessful

motion for a judgment notwithstanding the verdict (JNOV) or, in the alternative, a new trial.

Aggrieved by his conviction and sentence, Johnson now appeals to this Court. Upon review,

we find that reversible error resulted when the circuit court admitted into evidence the four

offense reports of Johnson’s prior bad acts without first scrutinizing the additional allegations

contained within the reports for undue prejudice under Rule 403. See Welde, 3 So. 3d at 117

(¶15).

DISCUSSION

¶30. Johnson argues the circuit court erred by admitting into evidence the four police

reports containing details of Johnson’s prior bad acts of domestic violence. Finding this

assignment of error dispositive, we limit our review to this issue. We find that the circuit

court indeed erred by admitting into evidence the entire contents of the four police reports

that discussed various additional criminal offenses. The circuit court admitted the entire

contents of the four offense reports without first determining whether the State offered the

evidence for a permissible purpose under Rule 404(b) and without applying the balancing test

required by Rule 403 to determine if the probative value outweighed the prejudice to

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Johnson.3

¶31. This Court reviews the circuit court’s decision to admit or exclude evidence for abuse

of discretion. Stone v. State, 94 So. 3d 1078, 1081 (¶9) (Miss. 2012). Where an error occurs

regarding the admission or exclusion of evidence, we will only reverse if the error adversely

affects a party’s substantial right. Ladnier v. State, 878 So. 2d 926, 933 (¶27) (Miss. 2004).

Before admitting evidence of a defendant’s prior bad acts, the circuit court must find that the

evidence is relevant to prove a material issue other than the defendant’s character and that,

under Rule 403, the evidence’s probative value outweighs its prejudicial effect. Welde, 3 So.

3d at 117 (¶15).

¶32. Evidence of prior bad acts is inadmissible to prove a defendant’s character to show

that he acted in conformity therewith. M.R.E. 404(b). See also Ballenger v. State, 667 So.

2d 1242, 1256-57 (Miss. 1995) (discussing the admissibility of prior-bad-acts evidence).

“The reason for the rule is to prevent the State from raising the inference that the accused has

committed other crimes and is therefore likely to be guilty of the offense charged.” Mitchell

v. State, 110 So. 3d 732, 734 (¶10) (Miss. 2013) (citation omitted). We acknowledge that

evidence of prior bad acts may be admissible, though, if its probative value outweighs its

prejudicial effect and if offered “for other purposes such as proof of motive, opportunity,

intent, preparation, plan, knowledge, identity, or absence of mistake or accident.” M.R.E.

404(b). See also Welde, 3 So. 3d at 117 (¶15) (discussing the two-part test used to determine

3
See Hargett v. State, 62 So. 3d 950, 953 (¶8) (Miss. 2011) (“Although a judge has
broad discretion in admitting evidence, evidence of a crime other than the one for which the
accused is being tried generally will not be admissible.”); Lesley v. State, 606 So. 2d 1084,
1089-90 (Miss. 1992) (discussing the admission of prior-bad-acts evidence).

15
whether evidence is admissible under Rules 403 and 404(b)).

¶33. In determining whether the evidence of Johnson’s prior bad acts was admissible for

noncharacter purposes under Rule 404(b), we apply the previously referenced two-part test.

See Stone, 94 So. 3d at 1084 (¶18); Welde, 3 So. 3d at 117 (¶15). “The evidence offered

must (1) be relevant to prove a material issue other than the defendant’s character; and (2)

the probative value of the evidence must outweigh the prejudicial effect.” Welde, 3 So. 3d

at 117 (¶15) (citation omitted).

¶34. We now turn to an application of Mississippi caselaw to the facts and evidence in this

record. At the pretrial hearing on the defense’s motion in limine to suppress the evidence of

Johnson’s alleged past bad acts or convictions, the State proffered to the circuit court its

intent to offer four past acts or convictions of domestic violence. As set forth in the

recitation of the facts, the record of the pretrial hearing reflects that the State provided a

verbal proffer to the circuit court of Johnson’s four prior bad acts or convictions. However,

the State did not provide the circuit court with the four related offense reports. Nor did the

State mention in the proffer its intent to offer the entire offense reports into evidence,

including the additional criminal allegations contained within the reports.

¶35. As acknowledged, during the pretrial hearing, the circuit court found the State’s

proffered evidence of Johnson’s four alleged past bad acts or convictions permissible to rebut

Johnson’s claim of self-defense, to show Johnson’s history of violence against women, and

to prove intent, motive, and plan pursuant to Rule 404(b). The circuit court found those

purposes relevant and probative under Rules 401 and 402. The circuit court then balanced

16
the State’s proffer under Rule 403 and found the evidence’s probative value outweighed any

prejudice. In addition, the circuit court provided a limiting instruction to the jury as to the

consideration of the past bad acts and convictions.4

¶36. In its closing argument on the defense’s motion in limine to suppress the evidence,

the State mentioned some of the additional facts and allegations contained in the offense

reports. However, the State failed to amend its previous proffer of the four past bad acts or

convictions to include any of these additional details, and the additional facts that the State

included in its closing argument during the pretrial hearing failed to explain all of the

additional criminal allegations contained in the four offense reports. As the record reflects,

the contents of the offense reports admitted at trial included allegations of the following

additional bad acts: kicking in a back door during an incident with Johnson’s first wife,

Pamela; holding a gun to Pamela’s head; threatening to kill Pamela; threatening to burn down

Pamela’s home; and allegations from Johnson’s former girlfriend, Farley, that she feared

Johnson would harm her baby. During Johnson’s trial, the circuit court admitted into

evidence the entire contents of the four offense reports without conducting a Rule 403

balancing test for undue prejudice and without determining whether a proper purpose existed

under Rule 404(b) for admitting the entire contents of the reports. See Welde, 3 So. 3d at 117

(¶15).

4
The circuit court also informed Johnson’s attorney that no need existed for the
defense to renew its objections to the admission of past bad acts at trial and that the
defense’s objections had been properly preserved. See Kettle v. State, 641 So. 2d 746, 748-
49 (Miss. 1994) (finding the defendant’s pretrial motion in limine was specific enough to
preserve the issue for appeal).

17
¶37. As previously discussed, our precedent establishes that error occurs where prior bad

acts are admitted into evidence for noncharacter purposes without first evaluating whether,

under Rule 403, the evidence’s probative value outweighs its prejudicial effect. Id. The

relevant two-part analysis requires a determination of whether the evidence was relevant to

prove a material issue other than Johnson’s character and whether the evidence was more

probative than prejudicial. See Stone, 94 So. 3d at 1084 (¶18); Welde, 3 So. 3d at 117 (¶15).

Since the circuit court admitted the entire contents of the offense reports without determining

whether the additional details contained within met the criteria set forth in the Mississippi

Rules of Evidence, the circuit court abused its discretion by admitting the evidence. See

Welde, 3 So. 3d at 118 (¶20).

¶38. In addition to passing muster under Rule 404(b), evidence of other crimes and past

bad acts must also satisfy Rule 403’s requirement that the probative value outweighs the

harmful consequences that might flow from the evidence’s admission. See Lesley, 606 So.

2d at 1089-90.5 During Johnson’s trial, the circuit court abused its discretion by admitting

into evidence the entire contents of the four offense reports over the defense’s continuing

objection. As a result, we must reverse the circuit court’s judgment and Johnson’s conviction

and remand the case to the circuit court for retrial. In so doing, we decline to address the

5
See also Mack v. State, 650 So. 2d 1289, 1311-14 (Miss. 1994) (discussing the
admissibility of other-crimes evidence); West v. State, 463 So. 2d 1048, 1051-52 (Miss.
1985) (discussing the trial court’s admission of other-crimes evidence). Cf. Flowers v. State,
773 So. 2d 309, 323-24 (¶¶46-47) (Miss. 2000) (finding that evidence of other murders was
not necessary to present the complete story of the crimes charged and that, while some
evidence of the other murders could have been admitted for the purposes of Rule 404(b), the
evidence admitted exceeded the purposes of Rule 404(b) and could only have been intended
to inflame the jury).

18
remaining assignments of error.

¶39. THE JUDGMENT OF THE ALCORN COUNTY CIRCUIT COURT IS
REVERSED, AND THIS CASE IS REMANDED FOR FURTHER PROCEEDINGS
CONSISTENT WITH THIS OPINION. ALL COSTS OF THIS APPEAL ARE
ASSESSED TO ALCORN COUNTY.

LEE, C.J., IRVING AND GRIFFIS, P.JJ., BARNES, ISHEE, FAIR, JAMES
AND WILSON, JJ., CONCUR. MAXWELL, J., CONCURS IN RESULT ONLY
WITHOUT SEPARATE WRITTEN OPINION.

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