The opinion
JIM HANNAH, Chief Justice, concurring in part and dissenting in part.
I concur in the majority’s conclusion that the statements should have been excluded. However, I dissent from the majority’s conclusion that the alleged sexual assault on Connie Sparks constitutes evidence proving that Osburn murdered Casey Crowder twenty-seven years later.
According to the State, Osburn, just as he did with Sparks twenty-seven years before, got Crowder alone by use of a motor vehicle near a levee and sexually assaulted her. The State argued to the circuit court that as between the two assaults, “[t]he only difference being he’s learned his lesson since then and decided not to leave them alive.” Thus, the State argued to the circuit court that the evidence was admissible to show that Osburn was subject to a proclivity, in other words a character trait of sexually assaulting women, and that he acted in conformity with that character in sexually assaulting and killing Casey Crowder. However, “[e]vidence of other crimes, wrongs, or acts is not admissible to prove ' the |44character of a person in order to show that he acted in conformity therewith.” Ark. R. Evid. 404(b). Thus, the evidence as offered by the State was not admissible under Rule 404(b).
Further, although the State argued to the circuit court that the similarity between the assault upon Sparks and the murder of Crowder was “somewhat striking,” the evidence does not support the State’s assertion. Sparks testified that in the early eighties, Osburn appeared at her door and asked her to drive him to where his car was stalled. She' did so and, according to Sparks, as they got out of her car, Osburn grabbed her by the throat and began ripping at her clothes. Sparks testified that Osburn “touched my breasts and everything.” She further testified that he “started trying to get in my pants.” According to Sparks, she kicked Osburn in the groin, ending the assault. Sparks had known Osburn since childhood, and at the time of the alleged assault, Osburn was engaged to Sparks’s sister. The assault on Sparks occurred in 1981.
In the present case, the evidence shows that Osburn did not know Crowder. Also, the evidence reveals nothing about events at the roadside where Crowder was killed. There is no evidence to show that Crowder was grabbed and sexually assaulted by touching the portions of her body. Crow-der’s body was fully clothed. The evidence in this case is that Crowder was strangled by use of a “zip-tie.” Sparks testified that her throat was grabbed, not that she was strangled by use of a “zip-tie.” Osburn was twenty-two when he was accused of assaulting Sparks and forty-six when he was accused of attempting to rape and murdering |4SCrowder. The similarities are that the assault occurred near a levee and somehow involved a motor vehicle, and that the victims were female. There is no striking similarity as the State alleged.
“To be admissible, there must be a very high degree of similarity between the charged crime and the prior uncharged act.” McGehee v. State, 338 Ark. 152, 171 , 992 S.W.2d 110, 121 (1999). The degree of similarity in the present case is minuscule. The circuit court abused its discretion in admitting the evidence of the alleged prior sexual assault.
I also note that the evidence of Sparks’s assault was combined with evidence of a tear in the crotch of boxer shorts Crowder was wearing as an outside garment to argue that Osburn attempted to rape her. The State told the circuit court that “the crotch in Casey Crowder’s clothing was ripped out there as she laid on the side of a ditch bank.” However, the State never offered any evidence to support the assertion. Officer Scott Woodward testified about photographs of Crowder’s body that he stated revealed that there was a “tear where the material and the thread was actually torn apart.” He testified further that the crotch of the boxer shorts had been “ripped apart.” An objection to this characterization was sustained, and the circuit court instructed the jury that the “characterization that that’s the way the hole occurred is stricken from the record and will be disregarded by the jury.” How the hole occurred is anyone’s guess. It could have been caused in an assault. The body suffered postmortem injury by animal activity, and that may have been the cause. The hole |4fimay have been from normal wear and may have been present before she was killed. Further, Crowder was wearing an undergarment beneath the boxer shorts, and no evidence was offered to show that the undergarment was also torn or that it showed any evidence of being disturbed by the person who murdered Crowder. The evidence offered by the state simply does not give rise to an inference that Osburn sexually assaulted Crowder. The assault on Sparks is too dissimilar, and nothing about the tear in the boxer shorts gives rise to an inference that she was sexually assaulted. However, the circuit court allowed the State to introduce the evidence and argue a sexual assault when the evidence simply did not support the argument. It caused the jury to resort to speculation and conjecture. Speculation and conjecture cannot support a jury verdict. See Flowers v. State, 373 Ark. 119 , 282 S.W.3d 790 (2008). Such a conviction would be based upon evidence less than that required to show proof beyond a reasonable doubt and would violate due process under the Fourteenth Amendment. Jackson v. Virginia, 443 U.S. 307, 316 , 99 S.Ct. 2781 , 61 L.Ed.2d 560 (1979).
Finally, the Sparks incident is too remote in time. The state acknowledged that the assault was “remote in time” but argued that the similarities were so striking that the evidence was admissible. Similarity is not enough. Where evidence is remote in time and unconnected to the charged crime, as in the present case, the evidence is not relevant. See Abernathy v. State, 325 Ark. 61 , 925 S.W.2d 380 (1996). The evidence was remote in time, dissimilar to the charged crime, and unconnected to the charged crime. The circuit court 147clearly abused its discretion in admitting the evidence. This case should be reversed and remanded on admission of the evidence of the assault on Sparks under Rule 404(b).