ARKANSAS COURT OF APPEALS
NOT DESIGNATED FOR PUBLICATION

DIVISION I

DAVID NUEHRING

APPELLANT

V.

STATE OF ARKANSAS

APPELLEE

CACR01-1341

February 18, 2004

APPEAL FROM THE PULASKI COUNTY CIRCUIT COURT

CR98-4518; CR2000-2615

HON. DAVID BOGARD, JUDGE

AFFIRMED

Larry D. Vaught, Judge

Appellant David Nuehring was found guilty by the trial court of two counts of first-degree domestic battery and sentenced to ten years in prison for each offense, to be served concurrently. On appeal, we ordered rebriefing because appellant's addendum failed to include items required by Ark. Sup. Ct. R. 4-2(a)(8) (2003). See Nuehring v. State, CACR01-1341 (Feb. 19, 2003). In this opinion we noted that appellant's addendum failed to include items necessary to our determination of both our jurisdiction and the merits. We ordered appellant to file a substituted abstract, brief, and addendum to conform to Rule 4-2(a)(8). Instead, in direct violation of Rule 4-2(b)(3) (2003) and our order, appellant filed a supplemental abstract, brief, and addendum, only including one of the several missing items mentioned in our first opinion. We cannot reach the merits of appellant's claims because again, he has failed to file a compliant addendum as required by Ark. Sup. Ct. R. 4-2(a)(8).

Appellant argues on appeal that the trial court erred in allowing proof of his prior domestic-battery convictions because Ark. Code Ann. § 5-26-303 does not require proof of prior domestic-battery convictions to prove the Class B felony with which he was charged, and that the trial court abused its discretion by allowing the State, pursuant to Ark. R. Evid. 404(b), to introduce the facts related to prior domestic-battery convictions where the evidence did not have independent relevance. As discussed in our first opinion, we noted that in order to determine the merits of appellant's argument we must be able to review the amended felony information because the parties disagree on what the State was required to prove, specifically whether proof of prior convictions was necessary to the State's case. In addition, we specifically mentioned that a review of the prior convictions introduced is necessary to our determination of whether the State was required to introduce the facts surrounding the prior convictions in order to establish that the victims in the case were family or household members. In spite of our instructions, appellant's supplemental addendum only included the amended felony information. Therefore, pursuant to Rule 4-2(b)(3), we affirm the appellant's convictions for noncompliance with the Rule.

Affirmed.

Pittman, J., agrees.

Neal, J., concurs.

Olly Neal, Judge, concurring. I concur in the affirmance of this case because, instead of summarily affirming, I would have affirmed on the merits, as the testimony regarding the facts surrounding appellant's prior convictions would have been admissible under Ark. R. Evid. 404(b).

Under Ark. R. Evid. 404(b), evidence of other crimes will be admitted if it has relevance independent of a mere showing that the appellant is a bad person. Jones v. State, 349 Ark. 331, 78 S.W.3d 104 (2002); Vowell v. State, 4 Ark. App. 175, 628 S.W.2d 599 (1982). Nevertheless, even where the evidence has independent relevance, it must be scrutinized under the substantial prejudice rule, Ark. R. Evid. 403. Vowell v. State, supra. As to whether the evidence is independently relevant, it must be relevant in the sense of tending to prove some material point rather than merely trying to prove the defendant is a criminal. Jones v. State, supra. On appeal, we will not reverse a trial court's decision regarding admission of evidence absent a manifest abuse of discretion. Id.; see also Stephens v. Petrino, 350 Ark. 268, 86 S.W.3d 836 (2002).

The trial court in the instant case overruled an objection from appellant's counsel regarding the introduction of the facts surrounding two prior alleged commissions of domestic battery as against a family member. Then the following colloquy took place:

Court: Well, I assume it is going to more than the testimony of the officer.

Ms. Patterson: It will. The state would also argue that we would be allowed to defend this testimony under 404(b) to show motive and intent.

Mr. Sherwood: Motive and intent...

Court: Why don't you just introduce the previous conviction?

Ms. Patterson: I can do that your honor.

Court: Well, I'll allow it since . . . well, go ahead. I'm going to allow it to be developed. Go ahead. Overruled. Assuming this is leading to show another conviction; not just to say he is a bad guy.

Ms. Patterson: It's not. It is also relevant for the state to show under 404(b) a pattern of action by this defendant.

Court: Okay. Overruled. Go ahead.

Mr. Sherwood: Note my objection.

Thereafter, two police officers were allowed to testify regarding appellant's two prior convictions. These convictions are a part of the record before us, and I believe that they had independent relevance; thus, the testimony surrounding the facts of those convictions were properly admitted absent an abuse of discretion.

In order to prove that appellant was guilty of Class B domestic battering in the first degree under the applicable statute, the State had to prove that appellant had committed previous acts of domestic battering and that, within the past ten years, he had on two previous occasions been convicted of an act of battery against a family or household member. See Ark. Code Ann. § 5-26-303 (Supp. 2001). The trial court appeared to have considered the relevance of the information surrounding the previous convictions under 404(b) because it stated it would allow the testimony, "assuming this is leading to show another conviction; not just to say he is a bad guy." The law states that even when evidence has independent relevance, it must still be scrutinized under Rule 403, which provides that:

As this was a bench trial, there were no concerns as to confusion of the issues or misleading the jury. Considerations of undue delay, waste of time, or needless presentation of cumulative evidence appear less significant as the court in this bench trial allowed the testimony. I find no abuse of discretion here, and I would have affirmed this case on the merits.