Evidence has been received that the defendant has allegedly committed misconduct/offenses/(an offense) other than that charged in the information. You may not consider this evidence as proof of the guilt or innocence of the defendant of the specific offense charged in the information/indictment. This evidence has been received solely on the issue of the defendant's alleged motive/opportunity/intent/ preparation/(common scheme or plan)/knowledge/identity/(absence of mistake or accident). This evidence is to be considered by you only for the limited purpose for which it was received.


Statutory Authority: 12 O.S. 1991, § 2404(B).

Notes on Use

Before admitting "other crimes" evidence, the trial court must determine that there is clear and convincing evidence that the defendant committed the extrinsic offense. See Burks v. State, 1979 OK CR 10, ¶ 16, 594 P.2d 771, 775.

This limiting instruction should normally be given both at the time "other crimes" evidence is introduced and with the final instructions to the jury. See Burks v. State, supra, ¶ 17. However, the trial court is not required to give the instruction sua sponte unless the failure to do so would constitute plain error. See Jones v. State, 1989 OK CR 7, ¶ 5, 772 P.2d 922, 925; 2 Leo H. Whinery, Oklahoma Evidence § 15.14 (1994).

The trial court should be especially careful when giving more than one limiting instruction to avoid inconsistencies between them. See Lewis v. State, 1998 OK CR 24 ¶ 22, 970 P.2d 1158, 1168 (limiting instructions on other crimes evidence and the basis of opinion testimony were confusing and contradictory when given together because the only evidence of other crimes came in as the basis of opinion testimony).

Committee Comments

This limiting instruction is not applicable to proof of prior convictions admitted on the issue of credibility. Section 2404(B) of the Oklahoma Evidence Code, 12 O.S. 1991, § 2404(B), is a statutory enactment of the common law rule and is virtually identical to the federal counterpart. Cases proscribing the introduction by the prosecutor of evidence that the defendant perpetrated offenses other than that described in the information/indictment in order to establish the defendant's propensity toward criminal behavior or that the defendant's character is consistent with the commission of the crime in question are legion. See, e.g., Fetter v. State, 1979 OK CR 77, 598 P.2d 262; Burks v. State, 1979 OK CR 10, 594 P.2d 771; Coats v. State, 1978 OK CR 129, 589 P.2d 689; Bryant v. State, 1978 OK CR 110, 585 P.2d 377; Snodgrass v. State, 1978 OK CR 49, 578 P.2d 381; Chandler v. State, 1977 OK CR 324, 572 P.2d 285; Grubb v. State, 1976 OK CR 129, 551 P.2d 289; Jett v. State, 1974 OK CR 140, 525 P.2d 1247. However, admission of "other crimes" evidence is permissible where the evidence tends to establish some material aspect of the State's case.

The adoption of section 2404(B) reflects a change in the underlying theory of the propensity rule. Prior to the enactment of section 2404(B), the Court of Criminal Appeals articulated the propensity rule in an "exclusionary" form. Evidence that the defendant had committed other crimes or immoral acts was excluded, unless the proof could be categorized within a specified exception. Barnhart v. State, 1977 OK CR 18, 559 P.2d 451; Tharps v. State, 1976 OK CR 253, 555 P.2d 1054; McMahan v. State, 1960 OK CR 22, 354 P.2d 476 (Okl. Cr. 1960). By contrast, section 2404(B) phrases the propensity rule in an "inclusionary" fashion. Proof of other wrongdoing is admissible when offered for a relevant, permissible purpose, and is inadmissible when offered only to cast aspersions upon the defendant's character. Although the difference in approach is probably insignificant as a matter of practical reality, II J. Weinstein & M. Berger, Weinstein's Evidence § 404[08], at 404-42 (1979), an argument may be made that the "inclusionary" approach fosters judicial awareness that the proffered evidence must actually be relevant as proof of a material issue. The "exclusionary" approach, it is argued, encourages judicial acceptance of the prosecutor's characterization of the evidence as being within the confines of an exception. Stone, The Rule of Exclusion of Similar Fact Evidence: America, 51 Harv. L. Rev. 988 (1938). The Court of Criminal Appeals has not always followed the rule's inclusionary language literally, and it has suggested in some of its decisions that the five exceptions in the rule are exclusive. See cases cited in 2 Leo H. Whinery, Oklahoma Evidence § 15.13 (1994).

The instruction is drawn in accordance with the language of the statute, including only those situations of admissibility enumerated therein. However, the stated permissible purposes are exemplary only; the list was clearly not intended to be exclusive or exhaustive. Weinstein, supra, at 404-42 (1979). The Court of Criminal Appeals, for example, has permitted use of other-crimes evidence as tending to demonstrate the defendant's "guilty knowledge." Bewley v. State, 1965 OK CR 82, 404 P.2d 39; Mitchell v. State, 1964 OK CR 94, 395 P.2d 814. Also, proof that establishes commission of a crime other than that with which the defendant is charged may be relevant as part of the res gestae. Futerll v. State, 1972 OK CR 258, 501 P.2d 901; Hall v. State, 80 Okl. Cr. 310, 159 P.2d 283 (1945); Rogers v. State, 8 Okl. Cr. 226, 127 P. 365 (1912).

It should be noted that the statutory use of the term "acts" in addition to "other crimes" operates also to exclude proof of misconduct that is not violative of the Criminal Code, unless such proof is relevant to some material issue. Brown v. State, 1975 OK CR 13, 530 P.2d 1056, decided prior to the enactment of the Evidence Code, is seemingly contrary (no error in admitting defendant's statement that he had some phenobarbital, but had no "speed," as possession of phenobarbital is not a crime under laws of Oklahoma).

In order for evidence constituting proof of a prior crime or other misconduct to be admissible, general practice requires that the prosecutor be prepared to explain specifically how this evidence tends to prove or to disprove a proper consequential fact, such as intent or knowledge, or to establish a proposition, such as motive. If the trial court determines that the evidence is relevant as tending to establish the issue on which it is offered, the court must perform, in compliance with section 2403, the further process of evaluating the probative value of the evidence as compared to its potential for prejudice. Snodgrass v. State, supra. Section 2403, 12 O.S. 1991, § 2403, provides:

Although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence.

See also Subcommittee's Notes to section 2404(B), 12 O.S. 1991, § 2404(B), urging that the inherently prejudicial character of other-crimes evidence gives rise to greater judicial "caution in determining whether such evidence should be admissible under [section 2403]."

In Burks v. State, supra, the court, in order to ensure "the integrity of evidence to be received at criminal trials" as well as to "enhance judicial efficiency by providing uniform standards for the introduction of evidence of other crimes and reducing misuse of a potentially dangerous rule of evidence," 1979 OK CR 10, ¶¶ 8-9 (on denial of rehearing), 594 P.2d at 776-77, promulgated procedural rules to govern the admissibility of evidence of wrongful conduct by the defendant.

(1) The State shall, within ten days before the trial, or at a pretrial hearing, whichever occurs first, furnish the defendant with a written statement of the other offenses it intends to show, described with the same particularity required of an indictment or information. (However, no such notice is required if the other offenses are prior convictions, or are actually a part of the res gestae of the crime charged and thus are not chargeable as separate offenses.) The requirement of notice gives the defendant an opportunity to obtain a pretrial determination on the admissibility of the evidence. However ... with regard to motions in limine, a pretrial ruling is not binding on the trial court. In order to properly preserve an objection it must be raised again during trial.

(2) At the time the evidence is offered the prosecutor shall specify the exception under which the evidence is sought to be admitted.

(3) Regardless of the exception used, there must be a visible connection between the offense charged and the offense sought to be proved.

(4) There must be a showing by the State that the evidence of other crimes is necessary to support the State's burden of proof; that the evidence is not merely cumulative. Such evidence should not be admitted where it is a subterfuge for showing to the jury that the defendant is a person who deserves to be punished.

(5) The evidence of the defendant's commission of other crimes need not be established beyond a reasonable doubt, but the proof must be clear and convincing.

(6) At the time the evidence is received, and in the final instructions to the jury, the trial court shall admonish the jury that the defendant cannot be convicted for any crime other than the one with which he is charged and that the evidence of the other offense or offenses is admitted solely for a limited purpose.

(7) In the event the prosecution attempts to use evidence of other crimes in rebuttal, the trial court should conduct an in camera hearing to determine whether the evidence is admissible under the above guidelines.

Id. ¶¶ 12-18, at 594 P.2d at 774-75.

Section 2404(B) does not attempt to define statutorily the circumstances wherein proof of other crimes may tend to establish "motive," "intent," "identity," etc. The parameters of these situations of admissibility are defined by common law. For motive, see, e.g., Jones v. State, 1975 OK CR 222, 542 P.2d 1316; for intent, see Fetter v. State, supra; Hill v. State, 1979 OK CR 2, 589 P.2d 1073; for plan, see Burks v. State, supra; Bryant v. State, supra; for knowledge, see Snodgrass v. State, supra; Holmes v. State, 1977 OK CR 244, 568 P.2d 317; for identity, see Hill v. State, supra; Warner v. State, 1977 OK CR 257, 568 P.2d 1284; Davis v. State, 1977 OK CR 5, 558 P.2d 679; and, for absence of mistake or accident, see Worchester v. State, 1975 OK CR 111, 536 P.2d 995.

The Court of Criminal Appeals has applied different standards in determining whether evidence of extrinsic offenses is admissible to prove a common scheme or plan. The narrowest standard is illustrated by Marks v. State, 1982 OK CR 186, ¶ 9, 654 P.2d 652, 655, and Oglesby v. State, 1979 OK CR 95, ¶¶ 4-5, 601 P.2d 458, 459, in which the Court defined a common scheme or plan to be where the extrinsic offense was committed to prepare the way for another crime and the commission of the second criminal depended on the perpetration of the first. Another standard is illustrated by such cases as Salyers v. State, 1997 OK CR 88, ¶ 11, 755 P.2d 97, 101, where separate acts of sexual abuse were admitted under the common scheme or plan exception because they were part of a continuing transaction. A third standard is represented by Driver v. State, 1981 OK CR 117, ¶¶ 5-6, 634 P.2d 760, 763, in which evidence of prior rapes were admitted because of their distinctive similarities to the rape for which the defendant was being prosecuted.

(2000 Supp.)