¶1dissenting.
¶2In this case, the trial judge rejected the state’s evidence showing the defendant’s gang affiliation with the Southwest Kings. The state brings this appeal in its efforts to obtain this court’s decision on whether the trial judge erred in excluding such gang-affiliation evidence. It seeks a decision because other cases are pending involving these same facts and issue. The state is permitted to appeal when the attorney general is satisfied that error has been committed to the prejudice of the state, and that the correct and uniform administration of the criminal law requires review by the court. Ark. R. Crim. P. 36.10. The majority court dismisses the state’s appeal, stating that the trial court made no “sweeping decision” about the admissibility or inadmissibility of evidence of gang membership of a criminal defendant.
¶3This court has recognized that a defendant’s affiliation with a group may show “motive, and hence the doing of the criminal act, the identity of its actor, or his intention.” Smith v. State, 310 Ark. 247, 837 S.W.2d 279 (1992) [quoting Snell v. State, 290 Ark. 503, 721 S.W.2d 628 (1986), cert. denied, 484 U.S. 872 (1987), and 490 U.S. 1075 (1989)]. From my research I can find no Arkansas case, except the one before us now, where a trial court had actually excluded gang-affiliated evidence in a felony or homicide trial after a trial court, pursuant to A.R.E. Rule 403, weighed the probative value of such evidence against its prejudicial value.
¶4In my view, the legal issue sought to be ruled on is one which will reoccur, but which this court will never be able to reach, unless we do so in a state appeal like the one before us now. The question needing an answer here is what are the relevant factors for a trial court to consider under A.R.E. Rule 403 when admitting or excluding gang-affiliation evidence. I would take the state’s appeal and decide the issue.