The opinion
PARKS, Judge,
concurring in part and dissenting in part:
I write separately to address the appellant’s first, sixth, and seventh assignments of error relating respectively to character evidence, prosecutorial misconduct, and jury determination of the former conviction issue.
On page 486, the majority opinion concludes that the error of the trial court in admitting extraneous character evidence in rebuttal was harmless beyond a reasonable doubt. The improperly admitted testimony consisted of Detective Kettler’s testimony that the appellant had admitted robbing a *490 gas station, a shoe store and a beer truck. Appellant complains that he was prejudiced by the rebuttal testimony concerning prior arrests for and alleged confessions to other offenses.
The record indicates that the trial judge was under the impression that the presentation of character witnesses by the appellant “opened up his total and complete character.” (Tr. 205) Once an accused opens the door by offering evidence of a pertinent trait of his character, that is, evidence of good character, the prosecution may rebut with evidence of bad character in the form of reputation or opinion evidence. 12 O.S.1981, §§ 2404(A)(1), 2405(A). See Wilkett v. State, 674 P.2d 573, 576 (Okl.Cr.1984). Relevant specific instances of conduct, however, may be used only on cross-examination, 12 O.S.1981, § 2405(A), unless the character trait is an essential element of a charge or defense. 12 O.S. 1981 , § 2405(B). Accordingly, the foregoing provisions of the Oklahoma Evidence Code prohibit the prosecution from introducing relevant specific instances of conduct on direct examination in rebuttal unless the character trait is an essential element of the offense charged or a defense. See 1 L. Whinery, Guide to the Oklahoma Evidence Code 106-07 (1985). Thus, I agree with the appellant that the rebuttal testimony on direct examination as to specific instances of conduct should not have been allowed. Accord State v. Lehman, 126 Ariz. 388 , 616 P.2d 63, 66 (Ct.App.1980) (17A A.R.S. Rules of Evidence 405(a) identical to 12 O.S.1981, § 2405(A)). The question then becomes whether the error affected a substantial right of the appellant, 12 O.S.1981, § 2104(A), so as to require modification or reversal. In light of the strong evidence of guilt, I would recommend that the appellant’s two forty-five (45) years sentences, which were ordered to run consecutively, be modified to thirty (30) years on each count.
With regard to the allegedly improper prosecutorial comments, the majority opinion at page 488 states that an appellant must not only object, but he must also request that the jury be admonished to disregard the comments. Section 2104(A)(1) of the Oklahoma Evidence Code only requires that a timely specific objection be made in order to preserve the question for review on appeal. “However, the Court of Criminal Appeals appears to still cling to the pre-Code decisional rule that there must be a request for an admonition to the jury in addition to an objection to preserve an error in the admissibility of evidence for review on appeal. See Orgill v. State, 660 P.2d 649 (Okl.Cr.1983) and Pekah v. State, 660 P.2d 652 (Okl.Cr.1983)....” See 1 L. Whinery, supra, at 20. “[NJeither the express language of Section 2104(A)(1), or anything in its legislative history, supports the conclusion of the court that a request for an admonition is necessary to preserve an error for review on appeal.” Id. at 22. As I have pointed out recently, see Reid v. State, 733 P.2d 1355, 1356 (Okl.Cr.1987) (Parks, J., specially concurring), in my opinion error is preserved for review on appeal under 12 O.S.1981, § 2104(A)(1) if a timely and specific objection is interposed by counsel, regardless of whether a request for an admonishment or motion for mistrial is made.
In addition, I disagree with the majority’s assertion on page 489 that it was proper cross-examination for the prosecutor to comment on the failure of the appellant’s parents and niece to testify on his behalf. This Court has previously reversed, see Dupree v. State, 514 P.2d 425, 427 (Okl.Cr.1973), and modified sentences at least partially on the basis of such improper remarks made during closing argument. See Baldwin v. State, 519 P.2d 922, 924 (1974); Potter v. State, 511 P.2d 1120, 1125 (Okl.Cr.1973); Thompson v. State, 462 P.2d 299, 304 (Okl.Cr.1969). As my brother Judge Brett wrote in Potter, supra, “[i]t is not the purpose of the prosecutor to comment upon the failure of any defense witnesses to testify. It is defendant’s right to offer testimony, or not to offer such.” Therefore, I believe that the improper conduct of the prosecutor further supports a decision to modify appellant’s sentence.
Lastly, the majority states on page 489 that “when the defendant under oath confesses the former conviction there is no *491 question of fact within the jury’s province as to whether the defendant is guilty of only the primary offense or of the primary offense after former conviction.” While I continue to follow this rule on the basis of stare decisis, I have not changed my position as set forth in Hanson v. State, 716 P.2d 688, 690 (Okl.Cr.1986) (Parks, P.J., specially concurring).
Accordingly, on the basis of the foregoing, I concur in the affirmance of the judgment, but I would modify the sentence to thirty (30) years on each count.