¶1dissenting. I do not agree with the majority that the photograph of Qualls in a room on a bed in the midst of piles of cash was relevant under A.R.E. Rule 402. The money could have come from any number of other sources. In any event, the question of relevancy should not be resolved by imagination or guesswork. The picture is simply not relevant to the facts of this case.
¶2In addition, acceptance of this picture into evidence violates A.R.E. Rule 403 for its probative value does not outweigh the danger of unfair prejudice.
¶3The majority acknowledges that “undoubtedly the photograph was prejudicial”; however, they explain away the prejudice by stating they find nothing unfair about the fact that a juror might conclude, by examination of the picture, that Qualls was conducting an illicit business.
¶4My concern is not with the guilt of Qualls, as there is overwhelming evidence of his guilt of the crime charged. I am troubled as to what effect the picture of Qualls surrounded by piles of money had on the jury in regard to the assessment of his punishment.
¶5Under our criminal justice system, we call upon the jury to make findings of guilt and to assess punishment in the same proceeding, Ark. Code Ann. § 5-4-103 (1987), unless there is an exception which calls for bifurcation. See e.g., Ark. Code Ann. § 5-4-602 (1987) (dealing with capital felony murder cases). In evaluating the question of relevancy and probative value of the introduction of the picture into evidence, we must consider not only what effect the picture had upon the jury’s finding of guilt or innocence, but what effect, if any, it may have had upon the assessment of a forty-year sentence as punishment. Since the prejudicial effects of admitting this picture into evidence could well have affected sentence, I would either reverse and remand or order his sentence reduced to the minimum authorized by law. See White v. State, 298 Ark. 163, 765 S.W.2d 949 (1989).