IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI N O. 2014-KA-00664-COA JAMES L. JOHNSON, JR. A/K/A JAMES JOHNSON A/K/A JAMES JOHNSON, JR. APPELLANT

v. STATE OF MISSISSIPPI APPELLEE DATE OF JUDGMENT: 04/04/2014 TRIAL JUDGE: HON. JAMES SETH ANDREW POUNDS COURT FROM W HICH APPEALED: ALCORN COUNTY CIRCUIT COURT ATTORNEY FOR APPELLANT: JOHN R. W HITE 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 TW ENTY YEARS IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS, W ITH 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 A l c o r n C o u n t y j u r y f o u n d Jam es Johnson g uilty of c om m itting aggravated dom estic violence by strangulation against his e x-wif e, V olante Jones, on Decem b er 3, 2012. See Miss. Code Ann. § 9 7-3-7(4) (Supp. 2012). In appealing his conviction t o this Court, Johnson raises the f

ollowing issues: (1) w hether the circuit court erred by adm itting evidenceof Johnson’s prior bad acts; ( 2 ) w h e ther the circuit court erred b y not allowing Johnson to

m ake a suf

f icient prof

f er of the testim ony he sought t o elicit f rom Jones; and (3) whether the State’s description of J ohnson du r i n g c losing argum e nts am ounted to prosecutorial

m isconduct. ¶2. Prior to Johnson’s trial, the State prof f ered evidence o f f

o u r o f J ohnson’s past bad

acts. Then, during its case-in-chief , the State introduced police reports related to Johnson’s prior bad acts a nd convictions f or dom estic violence. As ref lected in the trial testim ony and the adm itted of

f ense reports, the State of f ered evidence of Johnson’s f o u r prior bad acts involving f

our dif f erent wom en and spanning a thirteen-y ear t im e period. T he f i rst incident,

w h i c h o ccurred in 1999, involved Johnson’s f i rst wif e, Pam ela Johnson, a n d resulted i n a sim ple-assault conviction. The s econd i n c i d e n t, which occurred in 2000, involved y et another victim , Johnson’s ex-girlf riend, Jennif

er Farley , and also resulted in a sim p le-assault conviction. The third incident, which occurred in 2002 , i n v o l v e d J ones, the victim in the instant case. Although this third i ncident was n ever prosecuted, Jones t estif ied at trial as to the f acts s urrounding the i n cident. The f ourth incident, which o ccurred in 2012, involved Johnson a nd Jones’s d a

ughter. T his f

ourth incident a lso f

ailed to r esult in a conviction and was instead dism issed af

t er Johnson com

pleted an anger-m anagem ent course. ¶3. The of

f ense reports related to Johnson’s prior bad acts contained various allegations that Johnson e ngaged i n other crim ina l c o n duct than just the f our past bad a cts the State prof f ered during the pretrial hearing. The circuit court adm itted into evidence J o hnson’s two prior convictions and the f our p o lice reports related to h is prior of f enses. In addition, the

2circuit court adm itted testim ony f rom Jones as to Johnson’s third prior bad act. ¶4. The c ircuit c o u

r t a d m i t t e d t h e fo u r o ffense r eports without determ ining whether, under Rule 404(b) of the M i ssissippi Rules of Evidence, the State of

f ered the a d ditional of

f enses in the police reports f

or proper purposes. See W elde v
. State , 3 So. 3d 1 13, 117 (¶15) (Miss. 2009). Furtherm ore, the circuit court a d mi tted the o f f ense r eports without scrutinizing whether, under R

ule 403 of the Mississippi Rules of Evidence, the probative v alue of the additional allegations contained in the reports outweighed the prejudice t o John s o n. See W elde , 3 So. 3d at 117 (¶15). W e theref ore reverse the circuit court’s judgm ent and rem and this m atter f

or f u rther proceedings consistent with this opinion. FACTS ¶5. J ohnson and Jones m et when they began taking taekwondo lesson s f r o m t h e s a me instructor. At the tim e of the incident in question, J ohnson p ossessed a f irst-degree black belt in t aekwondo, and J ones possessed a second-degree black belt in taekwondo

. T h e couple

m arried in 2005 and had three c hildren t ogether during the c ourse of their relationship. Jones and Johnson divorced in Novem ber 2012, but they b o t h c ontinued to live in Corinth, Mississippi, in Alcorn County

. ¶6. A f

ew weeks a f

t er the couple’s divorce, Johnson c alled J o nes on Decem ber 3, 2012,

as Jones w as preparing to m o ve f rom her current hom e into a new hom e. Jones testif ied that Johnson inquired about her activities the p revious w eekend. Jones responded by t e l l i ng Johnson that, if the conversation was not about the couple’s children, then she and Johnson had nothing to discuss. Jones f urther testif

ied that she then ended the phone call.

3¶7. About thirty m inutes later, while J ones w a s c l e a n i n g out the r ef rigerator at her old hom e, she heard Johnson ring the doorbell and let him self into the house. A lthough Johnson possessed no key

to the house, Jones testif i ed that she had lef

t the door unlocked since her children would s oon arrive h om e f rom school. According t o Jones’s testim ony , she was at hom e alone when J ohnson entered, and she had not invited Jo h n s o n t o her hom e. Jones f urther s tated that she tried to ignore Johnson when he joined her in the kitchen so as not to provoke him . However, Jones t estif ied that, as she placed i tem s f rom the f reezer into bags

at her f eet, Johnson grabbed the top of her hair. Jones im m ediately raised up i n response, and when she did, Johnson grabbed her throat with his other hand. ¶8. Jones t estif

ied that she a nd Johnson wrestled as she attem pted t o break his hold on her throat so she could breathe. Jones denied, however, that she initiated a f ight with Johnson

or m ade any aggressive m ovem ents toward h i m. Jones testif ied that Johnson eventually f lipped her on her back, u sed his weight to pin her down, and then placed his r ight a rm around her throat. Although she never lost consciousness, Jones stated that she f elt a s though she were drowning because she could neither breathe nor speak. Jones testif ied that Johnson began to hit her in the head and ask questions about her whereabouts a nd with whom she had spent h er tim e. J ones also testif i ed that J ohnson would loosen his g rip f or a s econd to allow her to speak but would then tighten his grip again af ter she answered. Jones s tated that the f ight f inally e nded because s he and Johnson g rew weary f r om the constant struggling. Shortly af ter the altercation ended, the couple’s s on arrived hom e f rom school. Johnson then lef t the house, a nd once all three children arrived saf e l y hom e , J ones call e d t h e p olice and

4reported the incident.

¶9. Af ter the responding of

f i cer s poke to Jones and observed that her injuries appeared consistent with those caused by strangulation, Detective Heather Glass of the Corinth Police Departm ent was called to f urther investigate the m a tter. D etective Glass noted that Jones’s
ey es were swollen and that her f ace and neck bore red m arks and scratches. Detective Glass also observed petechiae, or ruptured blood vessels, in Jones’s ey es. Based on her training, D e tective Glass believed Jones’s petechiae were likely caused by the restriction o f b l o o d f low Jones experienced during her altercation with Johnson. W hile inve s t i g a t i n g the Decem ber 3, 2012 incident b etween Jones and Johnson, Detective Glass learned that, over the past thirteen y ears, Johnson had been involved i n f our p rior violent acts against Jones and three other wom en in which Johnson was charged as the initial aggressor. ¶10. Signif

i cant to our review on appeal, during pretrial m otions, the def ense m oved ore

tenus t o e x c l u d e any ref

erences by the State to Johnson’s purported p rior bad acts or prior

m isdem eanor c o n v i ctions f or dom estic violence against Jones and the other wom en. In
response to the def

ense’s pretrial m otion, the State inf orm ed the circuit court that it intended to of f er evidence of

f our of Johnson’s prior bad acts. ¶11. During the pretrial prof f er, the State provided that Johnson’s f o ur prior altercations involved f

our dif f erent victim s. T he State i nf orm ed the circuit court of the f ollowing f

acts regarding the f

our p rior a ltercations: the f irst altercation in 1999 involved J ohn s o n ’ s f i r st wif e, Pam ela, and resulted i n a sim ple-assault conviction; the second altercation in 2000 i n v o l v e d J o h n s o n ’ s e x - g i rlf riend, Farley , and resulted i n a sim ple-assault c onviction; t

h e t h i r d

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

prosecution; and the f

ourth altercation in 2012 involved Johnson and Jones’s daughter and was retired to the f

iles. ¶12. The def

ense argued that, under Rule 4 04(b), evidence of other crim es and prior bad

acts m ust be l i mi t ed in scope and of f ered f o r proper evidentiary purposes such as m otive,
opp o r t u n i t y , intent, preparation, plan, knowledge, identity , and absence of m istake or accident. The def

ense f urther asserted that the present case involved no such i s sue. Af ter hearing the State’s prof

f er and the def

ense’s response, the circuit court heard another pretrial

m otion b ef

ore ruling on the def

e nse’s o re tenus m otion in lim ine t o suppress the e v idence of Johnson ’ s p r i o r b a d acts or convictions. Upon disposing of the other pretrial m atter, the

c ircuit court heard closing argum ent f rom the p arties as to the adm issibility of the State’ s prof f ered evidence of

Johnson’s f

our prior of

f enses and alleged bad acts. ¶13. In its c losing argum e nt to the def ense’s ore tenus m oti o n t o s u p p r e s s , t h e State explained that it sought “to introduce into evidence at the appropriate tim e f o ur prior of

f enses

or b ad acts that were com m itted b y . . . Johnson[ .]” The State asserted the f ollowing details as to the f our prior bad acts: The f i rst one had an of

f ense date of

[ M ay 15, 1999], in which h e was charg e d w i t h aggravated assault against a[ n] ex-wif e , o r now ex-wif

e, a Pam ela Dilworth, or Pam e la Johnson Dilworth.

. . . A nd h e pled guilty [ ,] and the State has a certif

ied copy of the guilty

—of the record e ntered by the court.

. . . He was originally charged with aggravated assault[ ,] a nd it w as reduced to a sim ple assault. The second a ct is a sim

ple assault, verbal threats, a gainst a girlf riend who had had a child with M r. Johnson. T he o f f ens e date was on Novem

ber 11, 2000]. He pled guilty to sim ple assault, a m isdem e a nor, on [ D ecem ber 5,

62000]. The [ c ]ourt also has a certif ied—al s o h as a certif

ied abstract o f that guilty conviction.

. . . . The third of

f ense, or the third act that the State would seek to introduce had an of f ense d ate o f [ July 10, 2002].

. . . [ A] com plaint w as f

i led a gainst Mr. Johnson by the victim in this case today , Volante J ones. . . . [ H]e w as charged with dom estic violence. She had a s w o l l e n r i ght ey e, f orehead, signs of injuries. That charge was never prosecuted, Your Honor. The f ourth event is against his d aughter[ ,] who was [ f ourteen] y ears old at the tim e. . . . And the of f ense date on that was on [ July 27, 2012]. W e have a disposition i n that, Your Honor, in w hic h t hat charge was dism issed

. . . b ecause he attended an anger[

- ]m anagem ent program . And w h e n h e com pleted that[ ,] they

dism issed that charge . . . . ¶14. The State inf

orm ed the circuit court th a t i t s o u g h t t o i n t r o d u c e the evidence of Johnson’s prior bad acts and convictions to dem onstrate Johnson’s intent, m otive, and plan when he went to Jones’s hom e on Decem ber 3 , 2012. B ecause Johnson raised the issue of self -def e nse in v oir dire and subm i tted a self -def ense jury instruction, the S t a t e fu rther argued that the evidence of Johnson’s prior bad acts and convictions was relevant and adm issible to ref ute Johnson’s self

- def ense claim

. ¶15. In the State’s c oncludi n g r e ma r k s o n t h e d e f e n s e’s m otion in lim ine, the State

m entioned the f

ollowing add i t ional details related to its prior prof f er of Johnson’s alleged prior bad acts:

In the f irst one[ ,] he went t o t h e wom an’s house with a gun, 9 11 was called. He went to her in the house and threatened to kill her. The second o ne was a sim ple a ssault. H e went to his girlf riend’s place of em ploy m ent

. . . . He went there, conf ronted her, had a discussion, threatened her s a y ing[ ,] [ “I]f y ou don’t stop legal proceedings in r egard[ ] to m y child custody [ ”]—the child[ -]custody issue they h a d , [ “]I’m going

7to[ ”]—he threatened h e r . H e pled g uilty [ , ] a nd we have a[ n] abstract, a certified abstract for that

. The third of

f ense is h e went again to Volante Jones[ ,] a nd that occurred i n 2 0 0 2 , had a discussion, a f ight broke o ut. He was c h arged with sim p l e assault. That was not pursued. And then the f

ourth event is he struck his daughter upon the head, the nose, the f

ace. It shows that he has a tendency to strike wom e n, Your Honor. So we would s how that it shows intent, m otive, plan. He alway s a p proaches the victim , he goes there, he causes the conf r ontation[ , ] and theref

o re, it would not be in self -def ense . . . . (Em phasis added). Despite the State’s m ention of these additional details, the record ref lects that the State never am ended i ts prior prof f er to the circuit court. In addition, the State still f ailed to inf

orm the circuit court of all the additional crim i nal all e g a t i o n s c o n tained in the

r e l ated o f f ense reports. The State also f ailed to m ention to the circuit court its i n t e n t t o introduce any law-enf

orcem ent o f

f ense r eports, m

uch less the entire contents of such reports. ¶16. In response to the Stat e ’ s c l o s i n g a r g u me n t , the d ef ense asserted in its closing
argum ent that three o f the pr i o r bad acts were too rem ote to be considered relevant or probative since they occurred o v e r t e n y e ars ago. The def ense f urther contended that the prejudice resulting f

r o m t h e e vidence outweighed any probative value. Af t er the parties’ closing argum ents, the c ircuit c ourt asked whether Johnson’s attorney possessed any caselaw

to s upport the def

ense’s argum ent on rem oteness. I n addition, the c ircuit c ourt judge stated that, if Johnson’s a ttorney were able to f ind caselaw prohibiting o r lim iting the u se of prior bad acts past a certain point in tim e, he would possibly reconsider the issue. ¶17. Absent such a showing by Johnson’s attorney , the circuit court judge stated:

8But in light o f the argum ents here today , the [ c]ourt f inds that

. . . the State is seeking to prove i ntent, m otive, p lan, and that it was not in self -def ense. The self -def ense issue was voir dired and presented to the jury

. T here was also a jury i nstruction p rior to trial f iled along those lines b y the def ense, and to show a h i story of violence against wom en. For those reasons[ ,] the [ c ]ourt f inds that under Rule 404

. . . the State does bring f orward a proper argum e nt to do that.

. . . [ L]ook[ i ng] at the b alanc i ng ef f ect u nder [ Rule] 401 [ of the Mississippi Rules of Evidence], I f

ind that

. . . those f

o ur [ prior bad acts] are a ll relevant. They are all against wom en. They are a ll where [ Johnson] was [ the] aggressor and

. . . went there and initiated contact, as alleged i n this sam e c a se. That does show intent, m otive, lack of m istake, plan[ ,] and a history against wom en and theref

ore is relevant evidence. ¶18. As ref

lected in the record, the circuit court conducted a Rule 403 balancing test of the f our prior altercations prof f ered by the State at the pretrial hearing. In so doing, the circuit

court de t e r mi n ed that the State’s prof f ered evidence of Johnson’s f our p rior bad acts and of f enses was a dm issible under Rules 403 and 404(b) to show J ohnson’s intent, m otive, and plan and t o ref

u te Johnson’s se l f

- d e f e n se claim

. The r ecord ref lects, however, that the evidence later adm itted at trial in the f our of f ense reports exceeded the State’s prof f er that the circuit court considered and weighed during the pretrial hearing. ¶19. The f

our of f e nse r eports admi t t e d d

uring Johnson’s trial contained a ccusations that Johnson had com m itted various o ther serious crim es not i n c l u d e d i n the State’s pretrial prof f er. Af ter the State of

f ered the f our of f ense reports a t trial f

or adm ission into e vidence, the circuit court conducted no evalua t i o n of whether the State o f f ered the contents of the of f ense r eports, alleging serious additional of f e nses, f or a proper and relevant purpose under Rule 404(b). The circuit court also f ailed to determ ine whether, as required by Rule 403, the prejudice arising f

rom the a dditional allegations in the reports o u t w e ighed the probative value. Instead, without redacting any of the additional serious crim inal allegations c ontained

9in the of

f ense reports, the circuit court adm itted the entire c ontents of the f our r eports into evidence over the def

ense’s previously

raised and continuing objection. 1 ¶20. W e now turn to a review of the evidence that the State a d mi t t e d d u r i ng Johnson’s trial. 2 As previously discussed, the State’s pretrial prof f er only provided that Johnson’s f irst past bad act in 1999 involved an aggravated-assault charge that l ater resulted in a simpleassault conviction. At trial, howe v er, the o f f ense report a dm itted into evidence regarding Johnson’s 1999 sim

ple-assault conviction contained additional inf o rm a t ion. ¶21. The 1999 o f

f ense report a sserted that police r eceived a 911 c all f rom J ohnson’s f

irst wif e, Pam ela, and that the r espondin g of f i cers f o und J ohnson and Pam ela arguing. The

contents of the 1999 of

f ense report f

urther all eged that Pam ela told the of f icers she and Johnson were getting a divorce and that J ohnson had not lived in the house f or alm ost f

ive

m onths. The r ecord f

urther shows that the contents of the 1999 of f ense r e p o r t c ontained Pam ela’s allegations that Johnson had com e over, kicked in the back door, held a gun to her head, a nd threatened to kill h er and burn down the house. The of f ense r eport also stated that, when of f i cers s e a r c h e d J ohnson, they discovered a pistol c oncealed in Johnson’s pocket. Detective Glass testif

ied that J ohnson was initially charged with a ggravated assault but that the charge was later r educed to sim ple assault. A s the record ref lects, in addition to

1 C f

. P r u i t t v
. S ta te , 8 0 7 S o . 2 d 1 2 3 6 , 1 2 3 9 (¶5 ) (M i ss. 2 0 0 2 ) ( ack n o w l ed g in g th at d o cu m en ts in th e case w ere ed ited to elim in ate r ef eren ces to p ast crim es, b ad acts, an d o th er irrelev an t in f

o rm a tio n )

. 2 T h e reco rd ref

lects th at th e S tate o f

f ered in to ev id en c e th ree o f th e o f f e n se rep o rts d u rin g D etectiv e G l ass’s testim o n y . L ater, th ro u g h Jo n es’s testim o n y , th e S tate o f f ered in to ev id e n c e a f

o u rth o f f en se rep o r

t. 1 0adm itting the 1999 of f ense report, the circuit c o urt also a dm itted the related sim p le-assault conviction into evidence. ¶22. W i th regard to Johnson’s second p ast bad act or conviction, the State’s pretrial prof f er asserted that it sought to introduce verbal threats a nd a m isdem eanor c onviction f or sim ple assault. However, through Detective Glass’s trial testim ony , the State of f ered, and the circuit

cou r t a d m i t t e d, an o f

f ense report f

iled i n 2000 that contained c l aim s by J o hnson’s exgirlf riend, Farley , that Johnson cam e to her workplace and threatened to “do some t h i n g to her if she did not s top the legal a ction[ ] against him f or c hild support.” The record ref lects that the contents of this second of f ense report also contained Farley ’s assertions that Johnson had previously acted aggressively toward her. The of f e nse report stated that Farley wanted

to f ile charges because she was a f raid of Johnson and w anted t o keep him f rom h arm ing her

or her b aby

. As a result of t h i s a l t e r c a t i o n with Farley , Johnson was charged with and

conv i c t e d of sim

ple assault. As stated, the e n tire contents o f the second of f ense report, as well as the related m isdem eanor conviction, were a d m itted i nto evidence over the def ense’s continuing objection. T h e evidence adm itted th r o u g h t his 2 000 of f ense report once again exceeded the State’s pretrial p rof f er o f a mi s d e meanor conviction f or sim ple assault and verbal threats. ¶23. The S tate’s third pretrial prof f er related to a past bad act of d om estic violence between Johnson and Jones, the victim i n the present case. The past bad act allegedly occurred in 2002 and was n e ver prosecuted. A s previously discussed, the State i ntroduced evidence of this alleged past bad a ct through Jones’s testim ony . The record ref lects that the State again

1 1of

f ered the entire contents of the 2002 of f ense report f

o r a dm ission in t o evidence. The record shows that the 2002 of f e nse report alleg e d that of f icers w ho responded to the dom estic-violence call f

ound J ones had s ustained visible signs o f abuse, including a swollen right e y e, a bum

p on her f orehead, and a bloody right k nee. The record f

urther ref lects that Jones claim ed Johnson inf licted the injuries. J ones testif i ed at trial that she c hose not to press charges against J ohnson. Even though no conviction resulted f rom this a lleged incident, the circuit court again allowed into evidence the entire contents of this 2002 of

f ense report. ¶24. The f

ourth past bad act or conviction the State prof f ered d uring the pretrial hearing

was an a lleged assault against Johnson and Jones’s daughte r. The record ref l ects Jones’s testim o ny asserting that she agreed to dism i ss the charge a f ter Johnson com

pleted an angerm anagem ent course. The record f urther ref lects that the charge was, in f act, dism issed. At trial, the State of

f e red, and the circuit court adm itted into evidence, the entire of f ense report. The record shows that the of f e nse report alleged that Jones returned hom e to f ind her daughter with a swollen nose and a knot above her ey e where Johnson hit her. ¶25. The evidence adm itted during Johnson’s trial also showed that, af ter Jones reported the incident charged and prosecuted in the p resent case, Captain R alph Dance o f the Corinth Police Departm ent arres t e d J o h nson. During the State’s case-in-chief , Captain Dance testif i ed that he had k

nown Johnson f

or y ears because the two had previously b een neighbors. Captain Dance f

urther testif

ied that he had taken taekwondo lessons at the sam e m artial-arts studio as Johnson and Jones. ¶26. According to Captain Dance’s testim ony , Johnson voluntarily stated that h e went to

1 2Jones’s h om e on D ecem b er 3, 2012, to discuss his c oncerns regarding the couple’s children. Johnson told Captain Dance that Jones let him i nto the house. Johnson explained to Captain Dance that, during the couple’s conversation, Johns on m e ntioned he h ad contacted the Departm ent of Hum an Services (DHS) to report his concerns. J ohnson f urther told Captain Dance that Jones becam e violent at the m ention of DHS a n d began to punch and kick him

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

rom injuring him

. According to Captain Dance’s t estim ony , Johnson f ailed to m enti o n a n y i n

j u r i es or to show any visible signs of injury resulting f rom his altercation with Jones. ¶27. Af ter the State rested, Johnson testif ied o n his own behalf during the defense’s casein-chief

. Johnson stated that he called Jones o n Decem ber 3, 2012, t o discuss her behavior

over the previous weekend a nd to explain that he f elt Jones’s c onduct was not i n their children’s best interest. According to Johnson, he inf o rm ed Jones that he was stopping by her house t o talk to her a bout her beha v i o r a n d their children’s welf are. Johnson corroborated Jones’s testim o ny that he rang the doorbell, entered the house, and then joined Jones in the kitchen. ¶28. According to J ohnson, Jones initiated their a l t e r c a t i on, a nd he m erely acted in self

def ense. Johnson a dm itted that Jones never actually punched or kicked him

. However, he testif i ed that Jones grew upset a nd cam e toward him af ter h e said he planned to contact DHS. Johnson f urther testif

ied that he and Jones began to struggle and that he put his arm around Jones a nd pulled her to the f l oor to prevent Jones f

rom injuring him

. Johnson stated that he

1 3used a chokehold to subdue Jones so that he w o u l d n o t h ave to def end h im self by m ore f orcef ul m eans. ¶29. Af ter considering the e v i d e n c e a n d t e s t im ony , the jury f ound Johnson guilty

of aggravated dom estic assault. The circuit court s e n t e n c e d Johnson to twenty y e ars in the custody of th e Mississippi Departm ent of Corrections, with ten y ears suspended, ten y ears
to serve, and f

i ve y ears of pos trelease supervision. Johnson then f iled an unsuccessf

ul

m otion f or a judgm ent n otwithstanding the verdict (JNOV) or, in the alternative, a new trial. Aggrieved by his conviction and sentence, Johnson now a ppeals to this Court. Upon review,

we f i nd that reversible error resulted when the circuit court adm i tted into evidence the f our of f ense reports o f J o h n s o n ’ s p r i o r b ad acts without f irst scrutinizing the additional allegations contained within the reports f or u ndue prejudice u nder R u le 403. See W

elde , 3 So. 3d at 117 (¶15). DISCUSSION ¶30. Johnson argu e s t h e c i r c u i t c o u r t erred by adm i tting i nto evidence the f our police reports containing detail s o f J o h n s on’s prior b ad acts of dom estic violence. Finding this assignm ent of error dispos i t i v e , w e lim it our review to this i ssue. W e f i nd that the circuit

court indeed erred by adm itting i nto evidence the entire contents of the f our police reports that d iscus s e d v a r i o us additional crim inal of f enses. The circuit court adm i tted the entire contents of

the f our of f ense reports without f

irst determ i ning whether the State of f ered the

e v i d e n c e f or a perm i ssible purpose under Rule 404(b) and w ithout apply ing the balancing test required by Rule 403 to d e term ine if t h e p robative v alue outweighed the prejudice to

1 4Johnson. 3

¶31. This Court reviews the circuit court’s decision to a dm it or exclude evidence f or abuse of discretion. Stone v. S

tate , 94 So. 3d 1078, 1081 (¶9) (Miss. 2012). W here an error occurs regarding the adm ission o r exclusion o f evidence, we will only reverse i f the error a dversely af f ects a party ’ s substantial r ight. Ladnier v. State , 878 So. 2d 926, 933 (¶27) (Miss. 2004). Bef ore adm itting evidence of a def endant’s prior bad acts, the circuit court m ust f i nd that the evidence is relevant t o prove a m a terial issue other than the def endant’s character and that, under R ule 403, the evidence’s probative value outweighs its prejudicial ef f ect. W elde , 3 So. 3d at 117 (¶15). ¶32. Evidence of prior bad a cts is inadm iss i ble to prove a def e n dant’s character to show that he acted in conf

orm ity therewith. M.R.E. 404(b). See also B allenger v. State , 667 So. 2d 1 242, 1256-57 (Miss. 1995) (discussing the a dm issibility of p rior-ba d

- a c t s evidence). “The reason f

or the rule is to prevent the State f rom r aising the i nf

erence that the accused has

com m itted other crim es a nd is theref ore likely to be guilty of the of f ense c harged.” Mitchell

v
. S t ate , 1 10 So. 3d 732, 734 (¶10) (Miss. 2 013) (citation om itted). W e acknowle d g e t h a t evidence of p rior bad acts m ay be adm issible, though, i f its probative value outweighs its prejudicial ef

f e ct and i f of

f e red “f or other purposes such as p roof o f m otive, opportunity , intent, prepa r a t i o n, plan, knowledge, identity , or absence of m istake or accident.” M.R.E. 404(b). See also W

e lde , 3 So. 3 d at 117 (¶15) (discussing the two-part test used to determ ine

3 S e e H a rg e tt v. S t

a te , 6 2 S o . 3 d 9 5 0 , 9 5 3 (¶8 ) (M i ss. 2 0 1 1 ) (“A l th o u g h a j u d g e h as b ro ad d iscretio n in ad m ittin g e v id en ce, e v id e n ce o f a c rim e o th er th an th e o n e f o r w h ich th e accu sed is b ein g tried g en erally w ill n o t b e ad m issib le.”); L e s ley v. S ta te , 6 0 6 S o . 2 d 1 0 8 4 , 1 0 8 9 -9 0 (M iss. 1 9 9 2 ) (d iscu ssin g th e ad m issio n o f p rio r -b ad -acts ev id en ce). 1 5whether evidence is adm issible under Rules 403 and 404(b)).

¶33. In determ i ning whether the evidence o f Johnson’s p rior b ad acts was adm issible f o r noncharacter purposes under Rule 404(b), we apply the previously r ef erenced two-part test. See Stone , 94 So. 3 d at 1084 (¶18); W elde , 3 So

. 3 d at 117 (¶15). “The evidence of f ered

m ust (1) be relevant t o prove a m aterial issue other than the def endant’s character; and (2) the probative value of the evidence m ust outweigh the prejudicial ef f ect.” W elde , 3 So. 3d at 117 (¶15) (citation om itted). ¶34. W e now turn to an application of Mississippi caselaw t o the f acts and evidence in this record. At the pretrial hearing on the def ense’s m o tion in lim ine to s uppress the evidence of Johnson’s alleged p a s t b a d a c t s or c onvictions, the S tate prof f ered to the circuit court its intent to of

f er f our past acts or convictions of dom e stic violence. As set f or t h in the recitation of the f

acts, the record of the pretrial hearing ref lects that the S t a t e p r o v i d ed a verbal p rof

f er to the circuit court of Johnson’s f our prior bad acts or convictions. However, the State did not provide the circuit c ourt with the f our related of

f ense reports. Nor did the State m ention in the prof f e r i ts intent to of

f er the entire of

f ense reports into e vidence, including the additional crim inal allegations contained within the reports. ¶35. As acknowledged, during the pretrial hearing, the cir c u i t c o u r t f o u n d the State’s prof f ered e vide nce o f Johnson’s f our alleged past bad acts or convictions perm issible to rebut Johnson’s claim of self

-def ense, t o show Johnson’s history of violence against wom en, and

to prove intent, m otive, a n d p l a n p u r suant to R ule 404(b). The circuit court f ound those
purposes relevant and probative under Rules 401 and 402. The circuit court then balanced

1 6the State’s prof f er under Rule 4 03 and f

ound the evidence’s probative value outweighed any prejudice. In addition, the circuit court provided a lim iting instruction t o the j ury as to the consideration of

the past bad acts and convictions. 4 ¶36. In its closing argum ent o n the def ense’s m otion in lim ine t o s uppress the evide n ce, the State m en tioned s om e of the additional f acts and allegations contained in the of f ense reports. However, the S tate f ailed to am end its previous prof f er of the f our past b ad acts or convictions to include a ny of these additional details, a nd the additional f acts that the State included i n its closing argum ent during the pretrial hearing f ailed t o e x p lain all of the additional crim i nal allegations contained in the f our of f ense reports. As the r ecord ref lects, the contents of the of

f ense reports adm itted at trial incl u d e d a l l e g ations of the f ollowing

a d d itional bad a cts: kicking i n a back door during an incident with Johnson’s f irs t w i f e , Pam ela; holding a gun to P am ela’s head; threatening to kill P am e l a; threatening to burn down Pam ela’s hom e; and allegations f rom Johnson’s f

orm er girlf

riend, Farley , that s he f

eared Johnson would harm her baby

. During John s o n ’ s t r i a l , the circuit court adm itted into evidence the entire c ontents of the f our o f f ense reports without conduc t i n g a R u le 403 balancing test f

or undue prejudice and without determ ining whether a proper purpose existed under Rule 404(b) f

or adm i tting the entire contents of the r eports. See W elde , 3 S o. 3d at 117 (¶15).

4 T h e c ircu it co u rt also in f o rm ed Jo h n so n ’s atto rn e y th at n o n eed ex isted f o r th e d e f en se to r en ew i ts o b

j ectio n s to th e ad m issio n o f p a st b ad a cts at trial an d th at th e d ef en se’s o b j ectio n s h a d b een p ro p erly p reserv ed

. S e e K ettle v. S ta te , 6 4 1 S o . 2 d 7 4 6 , 7 4 8

- 4 9 (M iss. 1 9 9 4 ) (f

in d i n g th e d ef

en d a n t’s p retrial m o tio n in lim in e w as sp ecif ic en o u g h to p reserv e th e issu e f

o r ap p eal). 1 7¶37. As previously discussed, our precedent establishes that error occurs where prior bad

acts are adm itted into evidence f or noncharacter purposes without f irst evaluating whether, under Rule 403, t h e e v i dence’s p robative value outweighs its prejudicial ef f ect. Id. The relevant two-part analy sis requires a determ ination of whether the evidence was relevant to
prove a m aterial issue o ther than Johnson’s character and whether the e vidence was m ore probative than prejudicial. See Stone , 94 So. 3d a t 1084 ( ¶18); W elde , 3 S o. 3 d at 117 (¶15). Since the circuit court adm itted the entire contents of the o f f ense reports without determ ining whether the additional det a i l s c o ntained within m et the criteria set f orth in the Mississippi Rules of Evidence, th e circuit court abused its discretion by adm itting the evidence. See W elde , 3 So. 3d at 118 (¶20). ¶38. In additi o n t o p a s s i n g m uster under Rule 404(b), evidence of o ther crim es and past bad a cts m

ust also satisf

y Rule 403’s requirem ent that the probative va l u e o u tweighs the harm f ul c onsequences that m ight f low f rom the e v idence’s a d m ission. See Lesley , 606 So. 2d at 1089-90. 5 During Johnson’s trial, the circuit court abused its discretion by adm itting into evidence the entire contents o f the f our of f ense reports ov er the def

e nse’s c ontinuing objection. As a result, we m ust r e verse the circuit court’s judgm ent and Johnson’s conviction and rem and the case to the circuit court f or retrial. In so doing, we decline to a ddress the

5 S ee a lso M

a ck v
. S t a te , 6 5 0 S o . 2 d 1 2 8 9 , 1 3 1 1

- 1 4 (M iss. 1 9 9 4 ) ( d i s c u s s i n g th e ad m issib ility o f o th er-crim es ev id en ce); West v. S t a t e , 4 6 3 S o . 2 d 1 0 4 8 , 1 0 5 1 -5 2 (M iss. 1 9 8 5 ) (d iscu ssin g th e trial co u rt’s ad m issio n o f o th e r-crim es ev id en ce). C f. F lo w ers v. S ta te , 7 7 3 S o . 2 d 3 0 9 , 3 2 3 -2 4 (¶¶4 6 -4 7 ) (M iss. 2 0 0 0 ) (f in d in g th at e v id e n ce o f o th er m u rd ers w as n o t n ecessary to p r esen t th e co m p lete sto ry o f th e crim es ch arg ed an d t h a t , w h ile so m e ev id e n c e o f th e o th er m

u r d ers co u ld h av e b een ad m itted f o r th e p u rp o ses o f R u le 4 0 4 (b ) , th e ev id e n c e ad m itted ex ceed ed th e p u rp o ses o f R u le 4 0 4 (b ) a n d co u ld o n ly h av e b een in ten d ed to in f lam e th e j u ry ). 1 8rem aining assignm ents of error.

¶39. THE JUDGMEN T O F T H E A L C O R N C O U N T Y C I R C U I T C OURT IS REVERSED, AND THIS C ASE IS REMANDED FOR FURTHER PROCEEDINGS CONSISTENT WITH THIS O PINION. ALL COSTS OF T HIS A P P EAL ARE ASSESSED TO ALCORN COUNTY. LEE, C .J., IRVING AND GRIFFIS, P .JJ., BARNES, ISHEE, F AIR, JAMES AND WILS O N , J J . , CONCUR. MAX WELL, J., CONCURS I N RESULT ONLY WITHOUT SEPARATE WRITTEN OPINION.

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