REL:09/19/2014




Notice: This opinion is subject to formal revision before publication in the advance
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          SUPREME COURT OF ALABAMA
                              SPECIAL TERM, 2014
                             ____________________

                                    1121099
                             ____________________

                         Ex parte State of Alabama

                     PETITION FOR WRIT OF CERTIORARI
                    TO THE COURT OF CRIMINAL APPEALS

                         (In re: Kevin Andre Towles

                                           v.

                               State of Alabama)

                    (Etowah Circuit Court, CC-07-480;
                 Court of Criminal Appeals, CR-09-0396)



BOLIN, Justice.
1121099

    Kevin Andre Towles was convicted of capital murder for

killing his son, Geontae Glass, who was under the age of 14

when he was killed.   See § 13A-5-40(a)(15), Ala. Code 1975.

By a vote of 11 to 1, the jury recommended that Towles be

sentenced to death.    The trial court followed the jury's

recommendation and sentenced Towles to death.    The Court of

Criminal Appeals reversed Towles's conviction and sentence in

a per curiam opinion. Towles v. State, [Ms. CR-09-0396, March

29, 2013] __ So. 3d __ (Ala. Crim. App. 2013).      The State

petitioned this Court for a writ of certiorari, which we

granted.

                Facts and Procedural History

    The Court of Criminal Appeals set forth the following

statement of facts:

         "On the morning of December 4, 2006, Shalinda
    Glass arrived at the Conoco gas station on Baltimore
    Avenue in Albertville. Ronnie Cook, who was at the
    time at the gas station to complete a sales order,
    took note of Glass because she drove her Nissan
    Altima automobile from one side of the lot to the
    other several times before she parked her vehicle in
    front of a gas pump. Cook watched Glass and Shaliyah
    Glass, Glass's seven-year-old daughter, get out of
    the vehicle and enter the gas station.

         "After they entered the Conoco gas station, Cook
    saw a blue Ford pickup truck stop beside Glass's
    Altima. Cook then saw a black male, who had the same

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    general physical characteristics as Towles, get into
    the Altima and then leave the Conoco gas station in
    the Altima. Cook did not see the black male get out
    of the pickup truck, but he stated that the black
    male was close to the passenger door of the pickup
    truck when Cook first noticed him. Cook testified
    that the pickup truck followed the Altima away from
    the Conoco gas station.

         "When Glass left the gas station with Shaliyah
    and found her Altima missing, she used a pay phone
    to telephone Towles. After Towles failed to answer,
    Glass telephoned 911. Glass told the emergency
    dispatcher that her Altima was missing and that her
    five-year-old son, Geontae, was asleep in the
    backseat of the vehicle.

         "The State presented evidence that the blue
    pickup truck Cook saw belonged to Bobby Spydell.
    Towles and Spydell had been friends since childhood,
    and the two men were business partners, operating a
    barbeque restaurant together. According to Spydell,
    Towles telephoned Spydell around 2 or 3 a.m. on
    December 4. Towles told Spydell that he needed
    Spydell to pick him up in Albertville. Spydell
    immediately left to meet Towles in his Ford pickup
    truck.

         "Spydell met Towles at a house in Albertville.
    At Towles's direction, Spydell drove Towles to a
    parking lot across the street from the Conoco gas
    station. Towles then asked Spydell to take him
    across the street to the Conoco gas station. Once
    there, Towles got out of the pickup truck, briefly
    walked away from the pickup truck and returned,
    throwing cash on the passenger seat for Spydell.
    Towles then walked toward the entrance of the Conoco
    gas station, and Spydell drove his pickup truck to
    his house.

         "While the search for Geontae and the Altima was
    ongoing, Investigator J.T. Cartee of the Albertville

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    Police Department interviewed Glass and Towles.
    Towles had few details to share with Investigator
    Cartee   at   that    time.   Investigator   Cartee
    subsequently became aware of the involvement of the
    blue pickup truck. In a second interview with
    Investigator Cartee, Towles denied any knowledge of
    a blue pickup truck or of its possible owner.

         "Alabama State Trooper William Randall, Jr., who
    was at the time a deputy with the Marshall County
    Sheriff's Office, participated in a search of
    Towles's residence located on Broad Street in
    Albertville. Towles had consented to the search.
    During the search, Trooper Randall found a receipt
    for a utility bill in the name of 'Vicki Towles.'
    The address listed on the receipt was not Broad
    Street but was a Boaz address on Shady Grove Road.
    Trooper Randall traveled to the Shady Grove address,
    secured the residence, and awaited the arrival of
    deputies with the Etowah County Sheriff's Office.

         "Etowah County Sheriff Todd Entrekin arrived at
    the Shady Grove address and entered the residence.
    Sheriff Entrekin and some of his deputies performed
    a sweep of the home searching for Geontae. Although
    he did not find Geontae, Sheriff Entrekin did note
    that the layout of the residence appeared to match
    a description given by Shaliyah to officers of the
    house in which she and Geontae had stayed the
    weekend before Geontae's alleged kidnapping. Sheriff
    Entrekin left the residence and returned to the
    sheriff's office, intending to return with a search
    warrant for the residence.

         "While he was at the sheriff's office, Sheriff
    Entrekin was informed that the missing Altima had
    been discovered in the garage of the Shady Grove
    residence. Inside the trunk of the Altima officers
    found Geontae's body wrapped in a blanket. Among
    other items recovered from the backseat of the
    Altima was a blue-and-white-striped bedsheet with
    reddish brown stains. Subsequent DNA testing of the

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1121099

    stains on the bedsheet by Deborah Dodd, a forensic
    scientist with the Alabama Department of Forensic
    Sciences, revealed that the stains matched the DNA
    profile of Geontae. On the bathtub in the back
    bathroom of the house, additional reddish brown
    stains were found. Dodd testified that these stains
    contained a mixed DNA profile, which is not uncommon
    for samples recovered in common areas, and that
    Geontae was most likely a contributor to the sample.

         "Investigator Mike Jones of the Etowah County
    Sheriff's Office and Agent Brenn Tallent of the
    Federal Bureau of Investigation interviewed Towles
    at the sheriff's office at 3:15 a.m. on December 5,
    2006. Towles was made aware of the discovery of
    Geontae's body. At the outset of the interview,
    Towles stated that he was 'responsible for what
    happened to Geontae' and that he did not want
    Shalinda charged in Geontae's death. Towles stated
    to Investigator Jones that he was outside his
    residence on Sunday evening when two masked men
    approached him and demanded that Geontae come
    outside. Towles agreed to the demand, believing that
    Geontae would not be harmed because he was a small
    child. Towles was then asked for money, and he gave
    them all the money he had, which he approximated at
    $15,000. Before leaving, one of the masked men took
    Geontae behind the house and beat him while the
    other masked man held Towles at gunpoint. Towles
    took Geontae inside the residence and told him that
    he would take Geontae to the doctor in the morning
    if he were not feeling well. Towles did not identify
    the men to Investigator Jones or Agent Tallent.

         "Several items found in the Shady Grove
    residence cast doubt on Towles's statement to
    Investigator Jones and Agent Tallent. Specifically,
    officers recovered an assault rifle, a pistol, a
    bulletproof vest, and $33,382.

         "Dr. Emily Ward, a state medical examiner,
    performed the autopsy on Geontae. Dr. Ward noted

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1121099

    many injuries she considered to be nonlethal.
    Geontae's body had abrasions on his arms, back,
    chest, stomach, groin, buttocks, legs, and left
    foot, and had bruising on his right thigh and right
    buttock. In addition to the fresh abrasions,
    Geontae's body revealed wounds that had begun
    healing, indicating to Dr. Ward that these wounds
    were likely sustained a few days before Geontae's
    death. Based on the curved nature of the wounds that
    had begun healing, Dr. Ward speculated that they had
    been inflicted with a belt.

         "Geontae's body also presented more serious
    injuries. Incisions to the right buttock and thigh
    revealed that the muscles had a large accumulation
    of blood. Dr. Ward explained that the accumulation
    of blood was significant because it indicated that
    the injury was 'extremely forceful.' Further, the
    muscular damage sustained by Geontae caused an
    increase of myoglobin in the bloodstream, which Dr.
    Ward classified as a very toxic substance capable of
    causing kidney failure. The level of myoglobin in
    Geontae's   bloodstream   was   87   nanograms   per
    milliliter, where a normal level would be less than
    5 nanograms per milliliter.

         "Geontae's lower back did not appear to have
    injuries to the skin, indicating that Geontae did
    not receive a direct blow to that area. However, the
    force applied to the buttocks was significant enough
    to cause hemorrhaging that reached Geontae's spinal
    cord. Based on the level of hemorrhaging in the
    nerve fibers of the lower portion of the spinal
    cord, Dr. Ward surmised that Geontae's injuries
    resulted in paralyzation. Dr. Ward testified that in
    her opinion Geontae died of complications from
    blunt-force injuries but that he could have survived
    had he received medical attention.

         "Additionally, a portion of the skin on
    Geontae's buttocks was denuded. Dr. Ward testified
    that the denuded-skin injury was consistent with

                             6
1121099

    having been struck with a piece of wood and that she
    asked investigators to return to the scene and to
    look for something similar to a piece of wood that
    may have been used to injure Geontae.

         "Captain Jeff Hopper of the Etowah County
    Sheriff's Office was sent to the Shady Grove
    residence with instructions to look for a solid
    object two to four inches wide. Captain Hopper
    located a piece of wood on the property. The piece
    of wood was approximately four feet long and two
    inches wide. His attention was drawn to the piece of
    wood because it bore a reddish brown stain. Dodd
    performed DNA testing on the stain, determining that
    the stain was blood and that the bloodstain matched
    the DNA profile of Geontae.

         "A search of a book bag recovered from the
    Altima yielded Geontae's school-conduct chart for
    the months of November and December. The chart
    displayed that Geontae had received a smiley face
    for the first two weeks of November but that Geontae
    had received a straight face on the chart's most
    recent entry. The State offered Geontae's conduct
    assessment as Towles's motive for killing Geontae.

          "....

         "At trial, the State offered the testimony of
    Shaquille Cameron, Towles's [other] son. Cameron,
    who was 15 years old at the time of trial, lived
    with Towles from the time he was 8 years old until
    he was 9. Cameron was removed from Towles's custody
    by the Alabama Department of Human Resources after
    Cameron appeared at school with an injury to his
    head. According to Cameron, Towles became angry with
    him because Towles found a number of cups under
    Cameron's bed. Cameron said that Towles picked up a
    metal box fan and struck Cameron's head with the
    fan. Additionally, Cameron alleged that on other
    occasions Towles struck him with his fists or with
    various implements, such as a belt, an extension

                             7
1121099

    cord, or a broomstick. Cameron testified that the
    assaults were in response to disciplinary issues at
    school. Towles objected to the admission of
    Cameron's testimony on the ground that it violated
    Rule 404(b), Ala. R. Evid. The circuit court
    overruled Towles's objection, finding that Cameron's
    testimony was relevant and admissible for the
    limited purpose of proving Towles's intent.

          "....

         "The circuit court instructed the jury         as
    follows with respect to Cameron's testimony:

               "'Ladies and gentlemen, there was
          testimony during the course of the trial by
          the young man Shaquille Cameron. And I want
          to speak to you about that testimony and
          what weight or how you can use that
          testimony.

               "'The Court charges you that there has
          been testimony in this case of prior bad
          acts by the defendant. You may not consider
          this testimony as evidence that the
          defendant had a bad character or that he
          acted in conformity with that character on
          the occasion that is the basis of the
          present charge; nor may you consider this
          evidence as proof that the defendant
          committed the acts alleged in this case.

               "'You may only consider the evidence
          of prior acts as evidence of identity or of
          an intent, purpose or motive to commit the
          acts complained of in the indictment before
          you today.'[1]

    1
     The State argued that Cameron's testimony was admissible
to show motive, intent, and identity.       The trial court
overruled Towles's objection to the admission of Cameron's
testimony, determining that the testimony was admissible for
                              8
1121099

       "... Towles did not object to the circuit court's
       jury instructions."

Towles v. State, __ So. 3d at __ (references to record and

emphasis omitted).

       Towles argued on appeal to the Court of Criminal Appeals

that    the   admission   of   Cameron's   testimony   violated   Rule

404(b), Ala. R. Evid., because, he argued, the sole purpose of

that testimony was to establish Towles's bad character.           Rule

404(b) provides:

       "Evidence of other crimes, wrongs, or acts is not
       admissible to prove the character of a person in
       order to show action in conformity therewith. It
       may, however, be admissible for other purposes, such
       as   proof    of   motive,   opportunity,    intent,
       preparation, plan, knowledge, identity, or absence
       of mistake or accident ...."




the limited purpose of proving Towles's intent. At the charge
conference before closing arguments, the trial court proposed
instructing the jury that it could consider Cameron's
testimony for purposes of proving identity, intent, and
motive. Towles objected, stating that Cameron's testimony had
been admitted for the limited purpose of showing intent. The
trial court agreed and determined that the jury would be
instructed that Cameron's testimony could be considered only
as proof of intent. However, when the trial court gave the
jury the limiting instruction regarding the prior-acts
evidence, it gave the more expansive limiting instruction,
which included the instruction that the jury could consider
the evidence for purposes of identity, intent, and motive.
Towles did not object to the instruction.
                                   9
1121099

    The Court of Criminal Appeals initially questioned the

admissibility of Cameron's testimony under any exception to

the exclusionary rule. However, the Court of Criminal Appeals

assumed, without deciding, that, if the evidence relating to

Towles's physical abuse of Cameron was relevant to show intent

as the trial court had found, "'pursuant to the trial court's

broad instruction, [the jury] ... remained free to consider

that evidence for ... other [improper] purposes (including

[motive and identity]).'" Towles, __ So. 3d at __ (quoting Ex

parte Billups, 86 So. 3d 1079, 1087 (Ala. 2010)).          This Court

found plain error in Ex parte Billups, where the trial court's

limiting   instruction   to   the    jury   permitted   the   jury   to

consider collateral-bad-acts evidence for implausible purposes

or for purposes other than those for which the collateral-bad-

acts evidence was offered.

    The    Court   of    Criminal     Appeals   reversed      Towles's

conviction, finding that Cameron's testimony was inadmissible

to prove identity and motive.        As to identity, the Court of

Criminal Appeals stated:

         "Contrary to the circuit court's instructions,
    the jury could not properly consider Cameron's
    testimony under the identity exception to the
    exclusionary rule. '[T]he identity exception to the

                                10
1121099

    general   exclusionary   rule   of   character   ...
    contemplates the situation where the now-charged
    crime was committed in a novel and peculiar manner.'
    Charles W. Gamble and Robert J. Goodwin, McElroy's
    Alabama Evidence, § 69.01(8) (6th ed. 2009).

          "'"'When extrinsic offense evidence is
          introduced to prove identity, the likeness
          of    the   offenses    is   the    crucial
          consideration. The physical similarity must
          be such that it marks the offenses as the
          handiwork of the accused.'" Ex parte Baker,
          780 So. 2d 677, 680 (Ala. 2000) (quoting
          United States v. Clemons, 32 F.3d 1504,
          1508 (11th Cir. 1994) (further citations
          omitted)). ... "'Much more is demanded than
          the mere repeated commission of crimes of
          the same class, such as repeated ... rapes.
          The pattern and characteristics of the
          crimes must be so unusual and distinctive
          as to be like a signature.'" Hurley v.
          State, 971 So. 2d 78, 83 (Ala. Crim. App.
          2006) (quoting 1 McCormick on Evidence §
          190 at 801–03 (4th ed. 1992) (footnotes
          omitted)).'

    "Moore v. State, 49 So. 3d 228, 233 (Ala. Crim. App.
    2009).

         "The primary assault to which Cameron testified
    involved Towles's use of a metal box fan. The only
    apparent similarity between the assault Cameron
    suffered and the manner in which Geontae was killed
    is that Cameron and Geontae are both Towles's sons.
    During the acts at issue, different implements were
    used by Towles –- Cameron was assaulted with a metal
    box fan and Geontae was killed with a piece of wood;
    the primary injuries differed -– Cameron was struck
    on his head and Geontae on his buttocks; and the
    apparent impetus for the beatings was different -–
    Cameron was assaulted for having cups under his bed,
    whereas the State's offered motive was that Geontae

                              11
1121099

    had a less than satisfactory conduct report from
    school. In short, there was no showing that the
    assaults to which Cameron testified and the manner
    in which Geontae was killed possessed the novelty or
    peculiarity necessary to render Cameron's testimony
    admissible under the identity exception. In fact,
    the circuit court explicitly recognized that the
    identity exception was not applicable. Accordingly,
    the circuit court erred by allowing the jury to
    consider Cameron's testimony for the purpose of
    establishing   Towles's   identity    as   Geontae's
    murderer."

Towles, __ So. 3d at __ (citations to record omitted).

    As to motive, the Court of Criminal Appeals stated:

          "'Motive is defined as "an inducement, or
          that which leads or tempts the mind to do
          or commit the crime charged." Spicer v.
          State, 188 Ala. 9, 11, 65 So. 972, 977
          (1914). Motive has also been described as
          "that state of mind which works to 'supply
          the reason that nudges the will and prods
          the mind to indulge the criminal intent.'"
          [Charles Gamble, Character Evidence: A
          Comprehensive Approach 42 (1987).]'

    "Bowden v. State, 538 So. 2d 1226, 1235 (Ala. 1988).

         "The State argues on appeal that Cameron's
    testimony was admissible, and therefore properly
    considered by the jury, under the motive exception
    to the exclusionary rule. Specifically, the State
    cites Bedsole v. State, 974 So. 2d 1034 (Ala. Crim.
    App. 2006), arguing that the assaults on Cameron
    'tended to show that Towles was motivated to
    physically beat or assault children for disciplinary
    problems,' particularly those disciplinary problems
    that occur at school.




                             12
1121099

         "In Bedsole, this Court held that evidence of
    similar collateral sex acts with a child was
    admissible under Rule 404(b), Ala. R. Evid., to
    prove that the appellant was 'motivated by an
    unnatural sexual desire for young girls.' Bedsole,
    974 So. 2d at 1038–40; see also Ex parte Register,
    680 So. 2d 225, 226–28 (Ala. 1994); Garner v. State,
    977 So. 2d 533, 536–38 (Ala. Crim. App. 2007).
    However, the liberal view of the motive exception to
    Rule 404(b) found in Bedsole, Register, and Garner
    has been narrow in application. Alabama courts have
    not expanded the holdings of these cases beyond the
    scope of cases involving the sexual abuse of a
    minor, and we decline to do so today.

         "Simply stated, there was no logical tendency to
    lead to any inference that Towles, because he had
    assaulted his son Cameron three years earlier, was
    motivated to kill Geontae. Accordingly, the jury
    should not have been instructed that it could
    consider Cameron's testimony as evidence of Towles's
    motive."

Towles, __ So. 3d at __.

    Additionally, the Court of Criminal Appeals concluded:

         "The circuit court's instructions were erroneous
    because they permitted the jury to consider
    Cameron's testimony for improper purposes. Given the
    highly prejudicial nature of collateral acts
    involving child abuse, this Court holds that the
    erroneous jury instructions '"affected [Towles's]
    substantial rights and ... seriously affected the
    fairness and integrity of the proceeding against
    him."' Ex parte Billups, 86 So. 3d [1079] at 1086
    [(Ala. 2010)] (quoting Billups v. State, 86 So. 3d
    1032, 1079 (Ala. Crim. App. 2009) (Welch, J.,
    dissenting))."




                             13
1121099

Towles, __ So. 3d at __. Presiding Judge Windom dissented for

the same reasons stated in her special writing in R.C.W. v.

State, [Ms. CR-11-0387, November 2, 2012] __ So. 3d __ (Ala.

Crim. App. 2012) ("R.C.W. I"), which we discuss in greater

detail infra.

                     Standard of Review

    Towles objected to the admission of the collateral-bad-

acts evidence on the ground that the evidence violated Rule

404(b), Ala. R. Evid. "The question of admissibility of

evidence is generally left to the discretion of the trial

court, and the trial court's determination on that question

will not be reversed except upon a clear showing of abuse of

discretion." Ex parte Loggins, 771 So. 2d 1093, 1103 (Ala.

2000). "This is equally true with regard to the admission of

collateral-acts evidence. See Davis v. State, 740 So. 2d 1115,

1130 (Ala. Crim. App. 1998)."    Irvin v. State, 940 So. 2d 331,

345 (Ala. Crim. App. 2005).     Further, Rule 45, Ala. R. App.

P., provides:

         "No judgment may be reversed or set aside ... on
    the ground of ... improper admission or rejection of
    evidence, ... unless in the opinion of the court to
    which the appeal is taken or application is made,
    after examination of the entire case, it should
    appear that the error complained of has probably

                                14
1121099

    injuriously    affected   substantial        rights   of   the
    parties."

This Court stated in Ex parte Crymes, 630 So. 2d 125, 126

(Ala. 1993):

    "[T]his Court has stated that the reviewing court
    must determine whether the 'improper admission of
    the evidence ... might have adversely affected the
    defendant's right to a fair trial,' and before the
    reviewing court can affirm a judgment based upon the
    'harmless error' rule, that court must find
    conclusively that the trial court's error did not
    affect the outcome of the trial or otherwise
    prejudice a substantial right of the defendant."

See also Ex parte Greathouse, 624 So. 2d 208, 210 (Ala. 1993)

(noting that the proper harmless-error inquiry asks, absent

the improperly introduced evidence, "'is it clear beyond

reasonable doubt that the jury would have returned a verdict

of guilty?'" (quoting United States v. Hastings, 461 U.S. 499,

511 (1983))).

    Although    Towles   objected     to   the    admission    of    the

collateral-bad-acts evidence, the record does not demonstrate

that Towles objected to the actual limiting instruction given

to the jury.    As discussed supra in note 1, the trial court

proposed at the charge conference instructing the jury that it

could consider Cameron's testimony for purposes of proving

identity, intent, and motive.        Towles objected, stating that

                                15
1121099

Cameron's testimony could be considered only for the limited

purpose   of    showing     intent.        The   trial   court   agreed   and

concluded that the jury would be instructed that Cameron's

testimony      could   be   considered      only   as    proof   of   intent.

However, when the trial court charged the jury, it gave the

more   expansive       limiting   instruction,       which   included     the

instruction that the jury could consider Cameron's testimony

for purposes of identity, intent, and motive.                Towles did not

object to the instruction.        Towles contends on appeal that he

preserved for appellate review the issue of the limiting

instruction because "[a] defendant may make a clear objection

at the charge conference in lieu of objecting at the close of

the oral instructions." Withee v. State, 728 So. 2d 684, 688

(Ala. Crim. App. 1998).           Although a defendant may make an

objection to a jury charge at the charge conference in lieu of

objecting at the close of the trial court's oral charge to the

jury, the defendant must obtain an adverse ruling from the

trial court at the charge conference in order for the issue to

be preserved for appellate review. This court may review only

those matters on which the trial court has made rulings

adverse to the party seeking review.               Breckenridge v. State,


                                      16
1121099

628 So. 2d 1012, 1018 (Ala. Crim. App. 1993).              Here, Towles

received a favorable ruling from the trial court at the charge

conference    when   he    objected    to    the    proposed   limiting

instruction. Thus, Towles was required to object to the trial

court's more expansive limiting instruction during the trial

court's oral charge to the jury in order to preserve the issue

for appellate review.       He did not.       Accordingly, the issue

regarding the trial court's limiting instruction is reviewable

for plain-error only.      See Rule 45A, Ala. R. App. P.

    "'The standard of review in reviewing a claim under
    the plain-error doctrine is stricter than the
    standard used in reviewing an issue that was
    properly raised in the trial court or on appeal. As
    the United States Supreme Court stated in United
    States v. Young, 470 U.S. 1, 105 S.Ct. 1038, 84 L.
    Ed.2d 1 (1985), the plain-error doctrine applies
    only if the error is "particularly egregious" and if
    it "seriously affect[s] the fairness, integrity or
    public reputation of judicial proceedings." See Ex
    parte Price, 725 So. 2d 1063 (Ala. 1998).'"

Ex parte Brown, 11 So. 3d 933, 935–36 (Ala. 2008) (quoting

Hall v. State, 820 So. 2d 113, 121–22 (Ala. Crim. App. 1999)).

                             Discussion

    The State argues that the Court of Criminal Appeals erred

in reversing Towles's conviction based on the admission of

Cameron's    testimony    because,    it    says,   the   testimony   was


                                 17
1121099

relevant and admissible to prove Towles's motive for killing

Geontae.   The State further argues that the Court of Criminal

Appeals erred in failing to apply a harmless-error analysis to

the   trial   court's   erroneous    limiting   instruction,   which

allowed the jury to consider Towles's collateral bad acts for

improper purposes. Towles contends that the Court of Criminal

Appeals did not err in determining that Cameron's testimony

was inadmissible to show motive because, he says, there was no

logical or factual connection between Geontae's killing and

the incidents of abuse testified to by Cameron.

      Rule 404(b) has been explained as follows:

      "'"'On the trial of a person for the alleged
      commission of a particular crime, evidence of his
      doing another act, which itself is a crime, is not
      admissible if the only probative function of such
      evidence is to show his bad character, inclination
      or propensity to commit the type of crime for which
      he is being tried. This is a general exclusionary
      rule which prevents the introduction of prior
      criminal acts for the sole purpose of suggesting
      that the accused is more likely to be guilty of the
      crime in question.'" Pope v. State, 365 So. 2d 369,
      371 (Ala. Crim. App. 1978), quoting C. Gamble,
      McElroy's Alabama Evidence § 69.01. (3d ed. 1977)
      "'This exclusionary rule is simply an application of
      the character rule which forbids the State to prove
      the accused's bad character by particular deeds. The
      basis for the rule lies in the belief that the
      prejudicial effect of prior crimes will far outweigh
      any probative value that might be gained from them.
      Most agree that such evidence of prior crimes has

                                18
1121099

    almost an irreversible impact upon the minds of the
    jurors.'" Ex parte Arthur, 472 So. 2d 665, 668 (Ala.
    1985), quoting McElroy's supra, § 69.01(1)....

         "'... The well-established exceptions to the
    exclusionary rule include: (1) relevancy to prove
    identity; (2) relevancy to prove res gestae; (3)
    relevancy to prove scienter; (4) relevancy to prove
    intent; (5) relevancy to show motive; (6) relevancy
    to prove system; (7) relevancy to prove malice; (8)
    relevancy to rebut special defenses; and (9)
    relevancy in various particular crimes. Willis v.
    State, 449 So. 2d 1258, 1260 (Ala. Crim. App. 1984);
    Scott v. State, 353 So. 2d 36 (Ala. Crim. App.
    1977). However, the fact that evidence of a prior
    bad act may fit into one of these exceptions will
    not alone justify its admission. "'Judicial inquiry
    does not end with a determination that the evidence
    of another crime is relevant and probative of a
    necessary element of the charged offense. It does
    not suffice simply to see if the evidence is capable
    of being fitted within an exception to the rule.
    Rather, a balancing test must be applied. The
    evidence of another similar crime must not only be
    relevant, it must also be reasonably necessary to
    the government's case, and it must be plain, clear,
    and conclusive, before its probative value will be
    held   to   outweigh   its   potential   prejudicial
    effects.'" Averette v. State, 469 So. 2d 1371, 1374
    (Ala. Crim. App. 1985), quoting United States v.
    Turquitt, [557 F.2d 464] at 468–69 [(5th Cir.
    1977)].'"

Ex parte Jackson, 33 So. 3d 1279, 1284-85 (Ala. 2009) (quoting

Robinson v. State, 528 So. 2d 343, 347 (Ala. Crim. App.

1986)).

          "'"[I]t is 'only when the probative value
          of evidence is "substantially outweighed by
          the danger of unfair prejudice," ... that

                              19
1121099

          relevant evidence should be excluded.'
          United States v. Bailleaux, 685 F.2d 1105,
          1111   (9th   Cir.   1982)  (emphasis   in
          original). '[T]he probative value of the
          evidence of other offenses must also be
          balanced against its "prejudicial nature"
          to    determine     its    admissibility.
          "Prejudicial" is used in this phrase to
          limit   the   introduction  of   probative
          evidence of prior misconduct only when it
          is unduly and unfairly prejudicial.' State
          v. Daigle, 440 So. 2d 230, 235 (La. Ct.
          App. 1983).

          "'"'Of course, "prejudice, in this context,
          means more than simply damage to the
          opponent's cause. A party's case is always
          damaged by evidence that the facts are
          contrary to his contention; but that cannot
          be ground for exclusion. What is meant here
          is an undue tendency to move the tribunal
          to decide on an improper basis, commonly,
          though not always, an emotional one." State
          v. Hurd, Me., 360 A.2d 525, 527 n. 5
          (1976), quoting McCormick, Handbook on the
          Law of Evidence § 185 at 439 n.31 (2nd ed.
          1972).'

    "'"State v. Forbes, 445 A. 2d 8, 12 (Me. 1982)."'"

White v. State, [Ms. CR-09-0662, August 30, 2013] __ So. 3d

__, __ (Ala. Crim. App. 2013) (quoting Averette v. State, 469

So. 2d 1371, 1374 (Ala. Crim. App. 1985)).

    Regarding the motive exception to Rule 404(b), this Court

has stated:

           "'Motive is an inducement, or that which leads
    or    tempts the mind to do or commit the crime

                              20
1121099

      charged.' Spicer v. State, 188 Ala. 9, 26, 65 So.
      972, 977 (1914). Motive is 'that state of mind which
      works to "supply the reason that nudges the will and
      prods the mind to indulge the criminal intent."' C.
      Gamble,   Character   Evidence[:   A   Comprehensive
      Approach], at 42 [(1987)]. 'Furthermore, testimony
      offered for the purpose of showing motive is always
      admissible. It is permissible in every criminal case
      to show that there was an influence, an inducement,
      operating on the accused, which may have led or
      tempted him to commit the offense.' (Emphasis in
      original, citations omitted.) Bowden v. State, 538
      So. 2d 1226, 1235 (Ala. 1988)."

Ex parte Register, 680 So. 2d 225, 227 (Ala. 1994).

      As mentioned in the Court of Criminal Appeals' statement

of facts quoted above, the State offered Geontae's negative-

conduct assessment as Towles's motive for killing Geontae.

The   State   sought   to   establish   that   as   the   motive   with

testimony from Cameron relating to collateral acts of abuse

perpetrated upon him by Towles. Cameron was 15 years old at

the time of trial.      Cameron testified that when he was nine

years old he was living with Towles, who is his biological

father.    Cameron stated that Towles would "spank" him for

getting into trouble at school:

          "Q. What did you usually get into trouble about?

          "A. School, acting up.

           "Q. Did you get in worse trouble if you had been
      in trouble at school?

                                 21
1121099

          "A. Yes, ma'am.

          "....

         "Q. Describe for us, if you will, what you were
    spanked with.

          "A. Belts and extension cords.

          "Q. Were they used together or separately?

          "A. Separately.

          "Q. What came first?

         "A. The belts did. And then the extension cords
    followed after my behavior got worse in school.

          "....

         "Q. Was there ever an occasion where you were
    hit with something other than the items that you
    have described for us now?

          "A. Yes, ma'am.

          "Q. What was that?

          "A. A broomstick.

          "Q. And what happened with the broomstick?

         "A. The broomstick broke. Just like one of the
    little flimsy ones with the kind of flimsy metal on
    it.

          "....

          "Q. Did you ever get hit with anything else?

          "A. Yes, ma'am.


                               22
1121099

          "Q. What was that?

          "A. His fist.

          "Q. Tell us about that, if you will.

         "A. Well, one time I got hit in my mouth. And
    then after the extension cord stopped working he
    told me we were going to start fighting if I got
    into any more trouble.

          "Q. And he hit you with his fist in your mouth?

          "A. Yes, ma'am.

         "Q. What did he do after he hit you with his
    fist in your mouth?

         "A. Well, he cried.   We came back from the
    doctor, and a day later he came and apologized to
    me.

          "Q. Did he cry before he took you to the doctor?

          "A. No, ma'am."

    Cameron was eventually removed from Towles's home by the

Alabama Department of Human Resources ("DHR") after Towles

struck him in the head with a metal "box" fan.   Cameron stated

that Towles entered his bedroom one morning before school and

discovered a number of plastic drinking cups under his bed.

Cameron testified that Towles began "fussing" and "yelling" at

him because the cups had not been put away.      He stated that

Towles then picked up a metal "box" fan from the floor and


                               23
1121099

swung it at him, striking him in the head.            Cameron testified

that the blow to his head with the fan produced a golf-ball-

size knot on his head that was noticed by students at his

school. Cameron's teacher informed the school's principal, who

then contacted DHR.      Cameron was removed from Towles's home,

and he never returned.

       Geontae's teacher testified that when Geontae received

the negative-conduct grade on the Friday before he was killed,

Geontae stated that he "would be getting in trouble when he

got home."     The State's evidence indicates that Geontae died

after being beaten with a wooden implement. Cameron testified

that    he   suffered   physical   abuse   at   the   hands   of   Towles

following disciplinary issues at school.          Cameron's testimony

indicated that Towles would become angered when Cameron got

into trouble at school and responded by beating him with

various implements that happened to be at hand, including

belts, extension cords, a broomstick, and his fists. Although

the last incident of physical abuse perpetrated upon Cameron

by Towles before Cameron was removed from Towles's home was

brought about by Towles's discovery of drinking cups under

Cameron's bed, as opposed to a disciplinary issue at school,


                                   24
1121099

Towles was nevertheless motivated to punish Cameron for the

disciplinary infraction by striking him with an implement

close at hand, i.e., the metal "box" fan.

       The State offered Geontae's negative-conduct assessment

as Towles's motive for killing Geontae.                    The State sought to

establish this motive with testimony from Cameron as to prior

acts       of   abuse    perpetrated    upon    him    by    Towles   following

disciplinary issues at school. Cameron's testimony, viewed in

its entirety, establishes the logical inference that Towles

was motivated to beat or assault his children because of

disciplinary issues at school.               Accordingly, we conclude that

the collateral-acts evidence introduced by the State through

Cameron's testimony was relevant and reasonably necessary to

the State's case because it related to motive and that the

probative        value     of   the    evidence       is    not   substantially

outweighed by its potential prejudicial effects. Ex parte

Jackson, supra.2


       2
     Although we do not necessarily agree with the Court of
Criminal Appeals' entire reasoning as to its determination
that the collateral-acts evidence in this case was
inadmissible to show identity, we do agree with that court's
conclusion that Cameron's testimony was inadmissible for the
purpose of establishing Towles's identity as Geontae's
murderer.
                                        25
1121099

    Having determined that Cameron's testimony was admissible

under the motive exception to Rule 404(b), Ala. R. Evid., we

must now address the issue of the trial court's limiting

instruction.    Relying on this Court's decision in Ex parte

Billups, 86 So. 3d 1079 (Ala. 2010), the Court of Criminal

Appeals determined that the trial court's limiting instruction

to the jury was erroneous because it permitted the jury to

consider Cameron's testimony for the improper purposes of

proving intent and identity.

    In Ex parte Billups, the defendant was indicted in June

2005 for the murder of Stevon Lockett. The defendant had been

indicted in October 2004 on 13 counts of capital murder in

relation to the killing of four men at the Avanti East

Apartments in Birmingham. In November 2005, the defendant was

convicted of 13 counts of capital murder in connection with

the Avanti East killings.       The trial court sentenced the

defendant to death.

    In December 2005, before the defendant was tried for

Lockett's murder, the State gave the defense notice of its

intent    to   present   evidence    regarding   the   defendant's

involvement in the Avanti East killings during his trial for


                                26
1121099

Lockett's    murder.   The   trial   court,    over    the    defendant's

objection,    determined     that    the    evidence       regarding   the

defendant's    involvement    in    the    Avanti   East    killings   was

admissible "'based upon the close proximity, the fact that the

same weapon was used, and the fact that [the offenses] [were]

very similar.'"     Ex parte Billups, 86 So. 3d at 1081.

    At trial, the State presented an overwhelming amount of

evidence relating to the defendant's involvement in the Avanti

East killings. The evidence presented by the State consisted

of eyewitness testimony of the Avanti East killings by two

witnesses; testimony of forensic experts, a firearms expert,

and a detective relating to the Avanti East killings; and

photographic evidence demonstrating the victims' wounds. The

State first mentioned evidence relating to the defendant's

involvement    in   the   Avanti    East   killings    in    its   opening

statement, during which the State provided the jury with a

detailed account of those killings and displayed postmortem

photographs of the four victims of the Avanti East killings.

During its case-in-chief, the State called seven witnesses who

testified regarding the Avanti East killings. During its

cross-examination of the defendant, the State asked several


                                    27
1121099

questions regarding the defendant's involvement in the Avanti

East killings.     The State also introduced during its cross-

examination of the defendant the postmortem photographs of the

victims of the Avanti East killings that it had displayed

during    the   opening    statement.     Finally,   the   State   made

numerous references to the Avanti East killings in its closing

argument.   The defendant objected on several occasions to the

introduction of the evidence relating to his involvement in

the Avanti East killings, arguing, among other things, that

the evidence was inadmissible in that it was unnecessary and

prejudicial.

      The trial court instructed the jury as follows regarding

its   consideration       of   the   evidence   of   the   defendant's

involvement in the Avanti East killings:

           "'Ladies and gentlemen, let me tell you one
      thing about this testimony. You're hearing testimony
      today   about   another  incident   that   allegedly
      occurred, not the same one that [the defendant] is
      actually charged with in this case.

           "'The law is clear that evidence of other
      crimes, wrongs, or acts is not admissible to prove
      the character of a person in order to show action
      and conformity therewith. In other words, evidence
      of other crimes allegedly committed by the defendant
      cannot be used to show bad character.




                                     28
1121099

         "'The evidence being presented regarding other
    acts allegedly committed by the defendant can be
    considered by you only for the purpose of
    determining either motive, opportunity, intent,
    preparation, plan, knowledge, identity, or absence
    of mistake or accident.

         "'I'm going to repeat those for you. But if you
    think the evidence from the other case is relevant
    to the issues of motive, opportunity, intent,
    preparation, plan, knowledge, identity, or absence
    of mistake or accident in Stevon Lockett's death,
    then you can consider this evidence.

         "'But it cannot be used by you for any other
    purpose; all right?'"

Ex parte Billups, 86 So. 3d at 1082.   Further, the trial court

stated the following in its final instructions to the jury:

         "'Now, as I instructed you during the trial,
    there's been some testimony regarding an allegation
    of other crimes. Evidence of other crimes, wrongs or
    acts is not admissible to prove the character of a
    person in order to show action and conformity
    therewith. In other words, evidence of the other
    crimes allegedly committed by the defendant cannot
    be used to show bad character. It cannot be used to
    show bad character. The evidence being presented
    regarding other acts allegedly committed by the
    defendant can be considered by you only for the
    purpose of determining motive, opportunity, intent,
    preparation, plan, knowledge, identity, or absence
    of mistake or accident, as I have instructed you. If
    you think the evidence from the other case is
    relevant to the issues of motive, opportunity,
    intent, preparation, plan, knowledge, identity, or
    absence of mistake or accident in Stevon Lockett's
    death, then you can consider it. But it cannot be
    used by you for any other purpose.'"


                             29
1121099

Ex parte Billups, 86 So. 3d at 1082.

      The Court of Criminal Appeals concluded that the trial

court did not err in admitting the collateral-acts evidence

regarding the defendant's involvement in the Avanti East

killings, stating, in relevant part, that that evidence "was

relevant to establish [the defendant's] identity, intent,

pattern or plan." Billups v. State, 86 So. 3d 1032, 1053 (Ala.

Crim. App. 2009). As to the trial court's limiting instruction

regarding the collateral-acts evidence, the Court of Criminal

Appeals noted that "the trial court repeatedly instructed the

jury as to the limited purpose for which evidence about the

[Avanti East] killings ... was being admitted" and that the

trial court "specifically instructed the jury that it could

not   use    the    collateral    bad     act    evidence       to    show   [the

defendant's]       bad   character   or    to    show    that    he    acted   in

conformity therewith." Billups, 86 So. 3d at 1053.

      Judge Welch authored a vigorous dissent to the Court of

Criminal     Appeals'     opinion,   concluding         that,    although      the

collateral-acts evidence relating to the Avanti East killings

may   have   been    admissible      to   show    motive,       it    was      not

reasonably necessary to prove motive and that the prejudicial


                                     30
1121099

impact of the substantial evidence relating to the Avanti East

killings so outweighed its probative value that the motive

exception    did    not   justify   its   admission   into   evidence.

Billups, 86 So. 3d at 1073.               Specifically, Judge Welch

stated:

    "The record in this case presents a textbook example
    of the reason the exclusionary rule prohibiting
    collateral-act evidence was created; the extensive
    evidence of collateral acts in [the defendant's]
    trial for the murder of Lockett permitted this trial
    to become, for all intents and purposes, a trial for
    murders of the four Hispanic men as well. The
    inadmissible collateral evidence diverted the
    jurors' minds from the main issue of [the
    defendant's] criminal responsibility for Lockett's
    death and had an irreversible impact on the jury's
    decision-making process in this case. ...

            "....

         "In addition to the fact that the evidence about
    the quadruple murders was unnecessary to the State's
    case, the evidence was overwhelmingly and unduly
    prejudicial to [the defendant]. The State presented
    such substantial evidence and argument about the
    quadruple-murder case, beginning in its opening
    argument to the jury when it displayed photographs
    of the four victims, that the record reads almost as
    if [the defendant] were being tried for both crimes
    in this trial. There was no way the jury could have
    excluded consideration of the significant and
    detailed collateral evidence as impermissible
    character evidence and there was a substantial
    danger   that   the   jury   would   have   made   an
    impermissible inference, based on the collateral
    evidence, that [the defendant] was a depraved
    massacring killer so he probably killed Lockett,

                                    31
1121099

    too. Allowing the jury to hear the collateral
    evidence was far more prejudicial than probative of
    the issues the majority contends it was admissible
    to prove."

Billups, 86 So. 3d at 1072-77.           Additionally, Judge Welch

concluded that the trial court did not properly instruct the

jury as to the purposes for which it could consider the

collateral-acts evidence of the defendant's involvement in the

Avanti    East   killings   and   that    the   erroneous   limiting

instruction actually served to exacerbate the error caused by

admitting the collateral-acts evidence.         Judge Welch stated:

    "[A]lthough the majority has correctly stated that
    the trial court did issue 'limiting' instructions,
    those instructions were wrong as a matter of law.
    The trial court accepted the State's invitation at
    trial to instruct the jury that it could use the
    collateral-act evidence for any of the reasons
    listed in Rule 404(b), [Ala. R. Evid.,] even though
    the State never argued that the evidence was
    admissible for most of those purposes. The State
    never argued that evidence about the [Avanti East
    killings] fell within the exceptions in the
    exclusionary   rule    for   evidence   related   to
    opportunity, preparation, knowledge, or absence of
    mistake or accident. Thus, the trial court, by
    issuing its erroneous instructions, greatly enhanced
    the prejudice caused when evidence about the [Avanti
    East killings] was admitted because the erroneous
    instructions permitted the jury to consider the
    illegal evidence for many issues other than those
    for which it was purportedly admitted.

         "This Court considered a similar issue in
    McAdory v. State, 895 So. 2d 1029 (Ala. Crim. App.

                                  32
1121099

    2004), when the trial court incorrectly instructed
    the jury about the issues relative to which evidence
    of the defendant's prior crimes could be considered.
    The Court stated: 'A limiting curative instruction
    only mitigates the prejudicial admission of illegal
    evidence if the instruction is legally sound. The
    jury could not have considered the prior convictions
    for knowledge and intent because neither was at
    issue.' 895 So. 2d at 1036. Thus, not only was
    substantial, prejudicial evidence about the [Avanti
    East killings] erroneously admitted, but the jury
    also received misleading instructions that permitted
    it to consider that prejudicial evidence for issues
    far beyond those for which the evidence was
    initially admitted. The confusion of the jury and
    the probable prejudice to [the defendant] is obvious
    and exacerbated the devastating harm that resulted
    from the erroneous admission of the testimony.
    Although defense counsel did not object to the
    instructions, based on the record as a whole, I
    believe that the error affected [the defendant's]
    substantial rights and that it seriously affected
    the fairness and integrity of the proceeding against
    him."

Billups, 86 So. 3d at 1078-79 (emphasis added).

    The defendant argued to this Court that the trial court

had committed reversible error in instructing the jury as to

the purposes for which it could consider the collateral-acts

evidence   because,   he   argued,   the   trial   court's   limiting

instruction allowed the jury to consider the collateral-acts

evidence for purposes not in dispute.              In reversing the

decision of the Court of Criminal Appeals, this Court stated:




                                33
1121099

         "Assuming, without deciding, that the evidence
    regarding [the defendant's] involvement in the
    Avanti East killings was, as the State contends,
    relevant to show plan, identity, motive, and intent,
    the jury, pursuant to the trial court's broad
    instruction, nonetheless remained free to consider
    that evidence for numerous other purposes (including
    opportunity, preparation, knowledge, or absence of
    mistake or accident) that were indisputably not at
    issue in this case. See McAdory v. State, 895 So. 2d
    1029, 1036 (Ala. Crim. App. 2004) (plurality
    opinion) (concluding that the jury could not have
    properly    considered    the   defendant's    prior
    convictions to show knowledge and intent because
    neither was at issue). Presenting the jury with such
    a far-reaching 'limiting' instruction carries with
    it the same problems as providing the jury with no
    specific purpose for considering the other crimes,
    wrongs, or acts evidence.

         "'[A]n instruction should advise the jury on the
    purposes for which prior acts are admitted, meaning
    uses that are plausible in the case at hand, and
    should not include a laundry list of every
    conceivable use.' 1 Christopher B. Mueller and Laird
    C. Kirkpatrick, Federal Evidence § 4:30 at 789 (3d
    ed. 2007) (emphasis added). In this case, however,
    the jury was allowed to consider the evidence
    regarding [the defendant's] involvement in the
    Avanti East killings for several implausible
    purposes, including, among others, opportunity and
    absence of mistake or accident. For example, [the
    defendant] made no argument at trial that Lockett's
    killing was the result of an accident or that he
    lacked the opportunity to kill Lockett; rather, [the
    defendant's] defense was that another person,
    Charles Cooper, was responsible for Lockett's
    murder.

         "By simply reciting the complete 'laundry list'
    of permissible theories under Rule 404(b), the trial
    court's instruction in this case gave the jury

                             34
1121099

    inadequate guidance. See Ex parte Belisle, 11 So. 3d
    323, 333 (Ala. 2008) ('[A]n appellate court
    "presume[s] that the jury follows the trial court's
    instructions unless there is evidence to the
    contrary."' (quoting Cochran v. Ward, 935 So. 2d
    1169, 1176 (Ala. 2006))). The trial court's
    instruction also failed to limit the State to the
    purposes –- as nonspecific as they were –- that it
    advanced in support of admission of the evidence
    regarding [the defendant's] involvement in the
    Avanti East killings. Thus, we conclude that the
    trial court erred by failing to limit the jury's
    consideration of that evidence to only those
    purposes for which the evidence was purportedly
    offered by the State (plan, identity, motive, and
    intent). See Huddleston [v. United States, 485 U.S.
    681 (1988)]; cf. United States v. Tse, 375 F.3d 148,
    158 (1st Cir. 2004) (finding that the district court
    'adequately limited the jury's consideration of
    [certain Rule 404(b)] evidence' when the court
    instructed the jury that it could not use that
    evidence 'to make a propensity inference' and that
    the jury could use that evidence to determine only
    the defendant's 'knowledge and intent').

         "With regard to the erroneous jury instruction,
    we agree with Judge Welch's conclusions that '[t]he
    confusion of the jury and the probable prejudice to
    [the defendant] is obvious' and that 'the error
    affected [the defendant's] substantial rights and
    ... seriously affected the fairness and integrity of
    the proceeding against him.' Billups, 86 So. 3d at
    1079 (Welch, J., dissenting). Accordingly, we
    conclude that, under the particular circumstances of
    this case, the trial court's failure to properly
    instruct the jury regarding the purposes for which
    it could consider the evidence of [the defendant's]
    involvement in the Avanti East killings constituted
    plain error."

Ex parte Billups, 86 So. 3d at 1085-86.


                             35
1121099

    This     Court   recently    decided   R.C.W.   v.   State,   [Ms.

1120562, May 30, 2014] __ So. 3d __ (Ala. 2014) ("R.C.W. II").

 R.C.W. was tried for and convicted of sexually abusing T.W.,

his biological daughter.        During the course of the trial the

State presented testimony from R.C.W.'s two other biological

daughters regarding specific acts of sexual abuse perpetrated

upon them.    R.C.W. argued that the evidence was not necessary

to the State's case because, he said, motive, intent, and

identity would not be contested at trial.           The State argued

that the evidence was admissible pursuant to Rule 404(b), Ala.

R. Evid., for the purposes of showing motive, opportunity,

intent, or plan. The trial court allowed the collateral-acts

testimony and charged the jury as follows:

         "'"You have heard testimony and evidence
    regarding crimes, wrongs or bad acts regarding the
    Defendant. The Defendant is on trial only for the
    criminal charges that I have read to you in the
    indictments, not for anything else. Evidence of
    other crimes, wrongs, or bad acts was allowed into
    evidence not to prove that the Defendant may or may
    not be a bad person or may or may not be a person of
    bad character or that it made him more likely to
    commit the crimes charged in these indictments,
    because   that   would    be   wrong   and   legally
    impermissible. The evidence of other crimes, wrongs
    or bad acts was allowed into evidence for one narrow
    purpose only. That is, it may be considered by you
    for the limited purpose as regarding the Defendant's
    motive, opportunity, intent, or plan."'"

                                   36
1121099

R.C.W. II, ___ So. 3d at ___ (quoting R.C.W. I, ___ So. 3d at

___).       R.C.W.   objected      to        the   trial   court's   limiting

instruction as follows:

     "'"Judge, with regard to the charge on [Rule] 404(b)
     evidence. The portion where you said that it's for
     the limited purpose of motive, opportunity, or plan,
     I would submit that those are not matters in
     controversy and by having it go –- I believe that
     that is different than what the State had said
     originally, was their purpose for offering that
     evidence. We except and object to the Court giving
     it with that broad of reason for it coming in."'"

R.C.W. II, ___ So. 3d at ___ (quoting R.C.W. I, ___ So. 3d at

___).

     The Court of Criminal Appeals concluded on appeal that

the collateral-act evidence of R.C.W.'s sexual misconduct

involving T.W.'s half sisters was admissible to establish

motive.     However, the Court of Criminal Appeals, relying on

this Court's decision in Ex parte Billups, further concluded

that "it was reversible error for the trial court to allow the

jury to consider the evidence of collateral sexual misconduct

involving T.W.'s half sisters for the improper purposes of

intent, opportunity, and plan," where those points were not at

issue in R.C.W.'s trial,        R.C.W. I, __ So. 3d at __, because

a   "jury   may   not   consider    evidence         of    collateral   sexual


                                        37
1121099

misconduct for an implausible purpose." R.C.W. I, ___ So. 3d

at __.

       Presiding Judge Windom authored a dissenting opinion in

which she    agreed with the holding of the main opinion that

evidence of R.C.W.'s prior sexual abuse of his other daughters

was admissible to establish his motive for sexually abusing

T.W.    R.C.W. I, __ So. 3d at __ .   Presiding Judge Windom also

agreed with the conclusion in the main opinion that the trial

court's limiting instruction erroneously allowed the jury to

consider evidence of R.C.W.'s collateral sexual abuse for

purposes other than to show motive, i.e., for the "'improper

purposes of intent, opportunity, and plan.'" R.C.W. I, __ So.

3d at __ (quoting main opinion).        However, Presiding Judge

Windom concluded that R.C.W. suffered no harm as the result of

the trial court's erroneous jury instruction, which allowed

the jury to consider evidence of R.C.W.'s collateral sexual

abuse for purposes other than motive. Presiding Judge Windom

explained:

            "In Ex parte Billups, 86 So. 3d at 1084–85, the
       Alabama Supreme Court held that when evidence of
       collateral bad acts is admitted for one or more
       purposes other than to show bad character, the
       circuit court's failure to give an instruction that
       limits the jury's consideration of that evidence to

                                38
1121099

    only the purpose for which it was admitted
    constitutes error. Specifically, the Court held that
    the circuit court's limiting instruction relating to
    Rule 404(b) evidence that 'simply recit[ed] the
    complete "laundry list" of permissible theories
    under   Rule   404(b)    [for   the   admission   of
    collateral-bad-act evidence], ... gave the jury
    inadequate guidance [and constituted error].'
    Billups, 86 So. 3d at 1086.

         "The Supreme Court did not, however, create a
    per se rule requiring reversal every time a circuit
    court's limiting instruction relating to collateral
    bad acts includes purposes listed in Rule 404(b) for
    which the evidence was not admitted. To the
    contrary, the Supreme Court has repeatedly held that
    the failure to give a limiting instruction and/or
    the giving of an erroneous limiting instruction must
    be reviewed on a case-by-case basis. Snyder v.
    State, 893 So. 2d 482, 485 (Ala. 2001) (explaining
    that 'each inquiry regarding the propriety of an
    instruction on the use of evidence of prior
    convictions ... must be determined on a case-by-case
    basis'); Ex parte Martin, 931 So. 2d 759, 768 (Ala.
    2004) (same); Johnson v. State, 120 So. 3d 1119,
    1126 (Ala. 2006) (same).

          "....

         "Although evidence of R.C.W.'s collateral bad
    acts was properly admitted as substantive evidence
    to show his motive and although the circuit court
    correctly prohibited the jury from considering
    R.C.W.'s collateral bad acts as evidence of his bad
    character, the majority finds reversible error in
    the circuit court's limiting instruction because it
    allowed the jury to consider that evidence for the
    'improper   purposes   of  [establishing]   intent,
    opportunity, and plan[, points that were] not at
    issue in this case.' [R.C.W. I,] __ So. 3d at __.
    I, however, disagree. Because it was not plausible
    for evidence of R.C.W.'s collateral bad acts to

                            39
1121099

    establish his intent, opportunity, or plan, any
    error in allowing the jury to consider the evidence
    for those purposes was harmless. In United States v.
    Levy–Cordero, 67 F.3d 1002, 1011 (1st Cir. 1995),
    the government offered evidence of the appellant's
    collateral bad acts to establish his consciousness
    of guilt. The trial court, however, gave a limiting
    instruction that directed the jury to consider the
    collateral-bad-act evidence for the purpose of
    establishing the appellant's intent and knowledge.
    Id. The United States Court of Appeals for the First
    Circuit held that a trial court's limiting
    instruction relating to the Rule 404(b) evidence
    improperly allowed the jury to consider the
    appellant's collateral bad acts as evidence of his
    intent and knowledge because those were not reasons
    that the evidence was admitted. Although the trial
    court improperly instructed the jury that it could
    consider the appellant's collateral bad acts for
    intent and knowledge, the First Circuit held that
    the error was harmless. Id. The Court explained that
    the erroneous instruction was harmless because there
    was 'no logical reason why [the collateral bad acts]
    would demonstrate appellant's intent or knowledge
    with respect to [charged] offenses ....' Id. Thus,
    the circuit court's instruction was harmless because
    it 'instructed the jury that it could draw an
    inference that the evidence could not logically
    support.' Id.

         "In this case, the circuit court's instruction
    that allowed the jury to consider R.C.W.'s sexual
    misconduct for 'improper purposes of [establishing]
    intent, opportunity, and plan,' [R.C.W. I,] __ So.
    3d at __, was harmless because there was 'no logical
    reason why [the collateral bad acts] would
    demonstrate    appellant's    intent[,    plan,   or
    opportunity] with respect to [charged] offenses....'
    Levy–Cordero, 67 F.3d at 1011. Stated differently,
    R.C.W.'s collateral sexual misconduct did not
    establish his specific intent to commit, his
    opportunity to commit, or a plan to commit the

                            40
1121099

    charged offenses. Therefore, the circuit court's
    erroneous limiting instruction was harmless because
    it merely allowed the jury to 'draw an inference
    that the evidence could not logically support.' Id.

         "Additionally,   as   the  majority   explains,
    R.C.W.'s intent, opportunity, and plan were not at
    issue at trial. R.C.W. was T.W.'s father, and they
    lived together at the time of the offenses. From
    this evidence, the jury must have drawn the
    conclusion that R.C.W., who was living with his
    daughter, had the opportunity to rape, sodomize, and
    sexually abuse her. Because R.C.W.'s opportunity to
    commit the charged offenses was clearly established
    at trial, the circuit court's instruction that
    allowed the jury to consider R.C.W.'s collateral bad
    acts for the purpose of establishing opportunity was
    harmless. Cf. Dawson v. State, 675 So. 2d 897, 900
    (Ala. Crim. App. 1995) ('The erroneous admission of
    evidence that is merely cumulative is harmless.'
    (citing Reese v. City of Dothan, 642 So. 2d 511, 515
    (Ala. Crim. App. 1993))); Woods v. State, 13 So. 3d
    1, 23 (Ala. Crim. App. 2007). Likewise, as the
    majority states, '[t]he intent necessary to these
    types of crimes may be inferred by the jury from the
    acts themselves.' [R.C.W. I,] __ So. 3d at __.
    Because R.C.W.'s general intent was established by
    the acts themselves, the circuit court's instruction
    allowing the jury to consider additional evidence of
    intent was harmless. Cf. Dawson, 675 So. 2d at 900;
    Woods, 13 So. 3d at 23. Finally, as the majority
    states, R.C.W.'s identity was not at issue in this
    case because R.C.W. did not allege that someone else
    committed the crime. Because R.C.W. did not place
    his identity at issue, the jury had two choices:
    believe that R.C.W. committed the acts or believe
    that no acts occurred. Because R.C.W.'s identity was
    not at issue and the jury was left to decide only
    whether the acts occurred, allowing the jury to
    consider evidence to show a plan and thus R.C.W.'s
    identity was not harmful. Id.


                            41
1121099

         "This is not a case in which evidence of
    collateral bad acts was improperly admitted or in
    which the circuit court erroneously allowed the jury
    to consider that evidence to show bad character.
    Instead, evidence of R.C.W.'s collateral sexual acts
    was properly admitted and considered as substantive
    evidence of his motive, and the circuit court
    correctly prevented the jury from considering that
    evidence for the sole purpose for which it is not
    allowed –- bad character and action in conformity
    therewith. Because evidence of R.C.W.'s collateral
    sexual misconduct was properly considered by the
    jury as substantive evidence of motive and because
    the   circuit   court  prevented   the   jury   from
    considering the evidence to prove bad character, the
    circuit court's limiting instruction that allowed
    the jury to also consider that evidence for
    additional implausible and/or irrelevant purposes
    was harmless. Therefore, I respectfully dissent."

R.C.W. I, __ So. 3d at __ (Windom, P.J., dissenting).             We

granted the State's petition for a writ of certiorari in

R.C.W.    II   to   determine   whether   an   erroneous   limiting

instruction as to otherwise properly admitted Rule 404(b)

collateral-bad-acts evidence is subject to a harmless-error

analysis.

    The State argued to this Court that the collateral-acts

evidence of R.C.W.'s sexual misconduct involving T.W.'s half

sisters had been properly admitted to show motive.         The State

conceded that the trial court's limiting instruction to the

jury was erroneous in that it allowed the jury to consider the


                                 42
1121099

collateral evidence of R.C.W.'s sexual abuse of his two other

daughters for purposes other than to show motive, i.e., for

the   improper      purposes   of   intent,     opportunity,   and   plan.

However, the State further argued that the trial court's

limiting instruction, although erroneous, was harmless error

because, despite being overly broad, it did, in fact, properly

limit   the    jury's     consideration    of   the   collateral-sexual-

misconduct evidence to the permissible purpose of showing

motive and properly prevented the jury from considering the

evidence      for   the    impermissible      purpose   of   showing   the

defendant's bad character. R.C.W. argued on appeal that the

decision of the Court of Criminal Appeals properly followed

this Court's decision in Ex parte Billups.

      This Court agreed with the Court of Criminal Appeals'

conclusions that the collateral-bad-acts evidence was properly

admitted to show motive and that the trial court's limiting

instruction was erroneous because it permitted the jury to

consider the collateral-bad-acts evidence for the improper

purposes of showing opportunity, intent, or plan.               However,

this Court in R.C.W. II went on to apply a harmless-error

analysis to the erroneous limiting instruction, stating:


                                     43
1121099

         "Although not expressly stated in this Court's
    main opinion in Ex parte Billups, Judge Welch's
    dissent in Billups, with which this Court expressly
    agreed, was based on two independent conclusions.
    First and foremost, Judge Welch determined that a
    substantial amount of prejudicial evidence relating
    to the defendant's involvement in the Avanti East
    killings had been erroneously admitted at trial. As
    Judge Welch stated in Billups: 'The record in this
    case presents a textbook example of the reason the
    exclusionary    rule   prohibiting    collateral-act
    evidence was created; the extensive evidence of
    collateral acts in [the defendant's] trial for the
    murder of Lockett permitted this trial to become,
    for all intents and purposes, a trial for murders of
    the four Hispanic men as well.' 86 So. 3d at 1072
    (emphasis added). Second, Judge Welch determined
    that the overly broad limiting instruction that
    permitted the jury to consider the collateral-acts
    evidence for issues beyond those for which the
    evidence was initially admitted resulted in obvious
    confusion to the jury and probable prejudice that
    only exacerbated the already prejudicial effect of
    the erroneously admitted collateral-acts evidence.
    Billups, supra. In other words, Judge Welch
    determined that the already overwhelming amount of
    prejudicial evidence admitted became even more
    prejudicial when considered in context with the
    overly broad limiting instruction, which allowed the
    jury to consider the prejudicial evidence for many
    purposes other than those for which it was
    purportedly admitted. Given the sheer volume of
    prejudicial evidence admitted in Billups, the overly
    broad instruction given to the jury in that case
    regarding the purposes for which that evidence could
    be considered, including matters beyond those for
    which the evidence was initially admitted, certainly
    was prejudicial because the limiting instruction
    gave the jury little guidance and no limitations as
    to the proper purposes for which the jury could
    consider the collateral-acts evidence. See Ex parte
    Billups,   86  So.   3d   at   1086  (stating   that

                            44
1121099

    '[p]resenting the jury with such a far-reaching
    "limiting" instruction carries with it the same
    problems as providing the jury with no specific
    purpose for considering the other crimes, wrongs, or
    acts evidence' and that, '[b]y simply reciting the
    complete "laundry list" of permissible theories
    under Rule 404(b), the trial court's instruction in
    this case gave the jury inadequate guidance'). Thus,
    Ex parte Billups can be read as standing for the
    proposition that an improper limiting instruction is
    prejudicial if, in effect, it offers little guidance
    or no limitations to the jury as to the proper
    purpose or purposes for which the collateral-act
    evidence could be considered.

         "To be sure, the factual scenario present in Ex
    parte Billups is extreme, given the voluminous
    amount of prejudicial collateral-acts evidence
    admitted at trial coupled with an overly broad
    limiting instruction in which the trial court simply
    listed each possible exception to Rule 404(b). For
    that reason, the holding in Ex parte Billups is
    limited to a similar factual scenario and does not
    'create a per se rule requiring reversal every time
    a circuit court's limiting instruction relating to
    collateral bad acts includes purposes listed in Rule
    404(b) for which the evidence was not admitted.'
    R.C.W. [I], ___ So. 3d at ___ (Windom, P.J.,
    dissenting).

          "....

         "... [U]nlike the situation in Ex parte Billups,
    the potential prejudicial effect resulting in this
    case from the admission of the evidence of R.C.W.'s
    prior sexual misconduct with his other daughters,
    coupled with the erroneous limiting instruction
    given by the trial court, was muted because of the
    limited amount of collateral-acts evidence admitted
    at trial. Here, the collateral-acts evidence was
    properly admissible to show motive and was limited
    to the testimony of R.C.W.'s other two biological

                             45
1121099

    daughters, who testified to specific instances of
    similar sexual misconduct as alleged in this case.
    Furthermore, although the limiting instruction in
    this case erroneously allowed the jury to consider
    the collateral-acts evidence for issues not in
    dispute,   the   limiting    instruction   properly
    instructed the jury that it could consider the
    collateral-acts evidence for the purpose of motive
    and that it could not consider the evidence to show
    R.C.W.'s bad character and that he acted in
    conformity with that character. To the extent the
    trial court's limiting instruction allowed the jury
    to consider the collateral-acts evidence for issues
    not in dispute, we agree with Presiding Judge
    Windom's conclusion that '[b]ecause it was not
    plausible for evidence of R.C.W.'s collateral bad
    acts to establish his intent, opportunity, or plan,
    any error in allowing the jury to consider the
    evidence for those purposes was harmless.' R.C.W.
    [I], ___ So. 3d at ___ (Windom, P.J., dissenting).
    ...

          "....

         "Instructing the jury that it could consider the
    collateral-acts evidence for purposes for which it
    ultimately would not actually consider it did not
    prejudice R.C.W., because the trial court properly
    instructed the jury that it could consider the
    collateral-acts evidence for the proper purpose of
    motive. The instruction here, although overly broad,
    was not so broad that it essentially gave no
    guidance or no limitation to the jury as to the
    proper purpose for which the evidence could be
    considered. See Ex parte Billups, supra. Because the
    collateral-acts evidence was appropriately before
    the jury for the purpose of proving motive, and
    because the limiting instruction did not rise to the
    level of prejudicial ambiguity found in Ex parte
    Billups, any error arising from the trial court's
    limiting instruction was harmless."


                             46
1121099

R.C.W. II, __ So. 3d at __ (final emphasis added).

    Although     the    State   has    argued,       and   this    Court    has

concluded,   that      the   collateral-acts      evidence        offered    by

Cameron's testimony was admissible to show motive, the State

originally offered the testimony for the purposes of showing

motive, intent, and identity.              The trial court admitted the

collateral-acts evidence for the sole purpose of establishing

Towles's   intent.       However,     the    trial    court   subsequently

instructed the jury that the evidence could be considered for

purposes of establishing motive, intent, and identity.                      The

Court of Criminal Appeals assumed for purposes of its decision

that Cameron's testimony was admissible to establish Towles's

motive and then determined pursuant to Ex parte Billups,

supra,    that   the   trial    court's      limiting      instruction      was

erroneous because it permitted the jury to consider the

testimony for other improper purposes, i.e., identity and

intent. The State       argues here that it was implausible that

the jury could have relied on Cameron's testimony to find the

specific intent required for a capital-murder conviction and

that, to the extent the trial court erroneously instructed the




                                      47
1121099

jury that it could consider Cameron's testimony for purposes

of establishing intent, that error was harmless. We disagree.

      In R.C.W. I and R.C.W. II, R.C.W.'s general intent was

established by the acts of sexual abuse themselves perpetrated

upon his daughter. Therefore, the trial court's instruction

allowing the jury to consider the additional evidence of

intent was harmless. However, in this case intent was a

central issue to be determined because, in order to prove

capital murder, the State was required to prove that Towles

had the specific intent to kill Geontae, a child under 14

years of age. § 13A-5-40(a)(15), Ala. Code 1975.           See Ziegler

v. State, 886 So. 2d 127, 140 (Ala. Crim. App. 2003)(holding

that "Alabama appellate courts have repeatedly held that, to

be convicted of [a] capital offense and sentenced to death, a

defendant must have had a particularized intent to kill").

Intent has been defined as "the ripened purpose to effect a

result."   Fuller v. State, 269 Ala. 312, 336, 113 So. 2d 153,

175   (1959).        Dean   Charles    Gamble   has     addressed     the

admissibility   of    collateral-act    evidence      pursuant   to   the

intent exception to Rule 404(b) as follows:

           "If the accused is charged with a crime that
      requires a prerequisite intent, collateral crimes,

                                  48
1121099

    acts or misconduct are admissible to show that the
    accused possessed the necessary intent. This rule is
    based upon the theory that because the unintentional
    doing of an act is abnormal and unusual, the more a
    person does other acts similar to the act in
    question, the greater the likelihood that the act in
    question was not done inadvertently. Whether the
    collateral act has a tendency to show that the
    accused did possess the prerequisite state of mind
    is, of course, one of relevancy vested largely in
    the discretion of the trial court."

I Charles W. Gamble and Robert J. Goodwin, McElroy's       Alabama

Evidence   §   69.01(5)(6th   ed.    2009)   (footnotes   omitted).

Further,

           "'"'[i]n a prosecution for murder, evidence
           of former acts of hostility between the
           accused and the victim are admissible as
           tending to show malice, intent, and ill
           will on the part of the accused.' White v.
           State, 587 So. 2d 1218, 1230 (Ala. Cr. App.
           1990), affirmed, 587 So. 2d 1236 (Ala.
           1991), cert. denied, 502 U.S. 1076, 112 S.
           Ct. 979, 117 L.Ed. 2d 142 (1992)."
           Childers v. State, 607 So. 2d 350, 352
           (Ala. Cr. App. 1992). "Acts of hostility,
           cruelty and abuse by the accused toward his
           homicide victim may be proved by the State
           for the purpose of showing motive and
           intent.... This is 'another of the primary
           exceptions to the general rule excluding
           evidence of other crimes.'" Phelps v.
           State, 435 So. 2d 158, 163 (Ala. Cr. App.
           1983). See also Baker v. State, 441 So. 2d
           1061, 1062 (Ala. Cr. App. 1983).'

    "Hunt v. State, 659 So. 2d 933, 939 (Ala. Crim. App.
    1994). See Harris v. State, 489 So. 2d 688 (Ala.
    Crim. App. 1986) (prior acts of abuse toward child

                                49
1121099

    victim were admissible to show motive and intent to
    murder). See also Harvey v. State, 579 So. 2d 22, 26
    (Ala. Crim. App. 1990). 'Former acts of hostility or
    cruelty by the accused upon the victim are very
    commonly the basis for the prosecution's proof that
    the accused had a motive to commit the charged
    homicide.' 1 Charles W. Gamble, McElroy's Alabama
    Evidence § 45.01(8) (5th ed. 1996) (footnote
    omitted), and cases cited therein."

Burgess v. State, 962 So. 2d 272, 282 (Ala. Crim. App. 2005).

    In this case the prior bad acts of assault and physical

abuse were not perpetrated by Towles upon the victim Geontae.

Rather, the prior assaults and abuse were perpetrated upon

Geontae's older brother Cameron approximately three years

before    Geontae's   murder.   We   cannot   say   that   Cameron's

testimony relating to the physical assaults he suffered at the

hands of Towles approximately three years before Geontae's

murder was relevant to show that Towles intended to kill

Geontae.    Further, where the jury was faced with deciding

whether Towles intended to murder Geontae or to assault him

for disciplinary issues at school, the admission of the

collateral assaults perpetrated by Towles upon Cameron were

highly prejudicial.      The probative value, if any, of the

testimony concerning the collateral assaults upon one son

simply does not outweigh the undue prejudice to Towles in his


                                50
1121099

prosecution for the capital murder of his other son. See

generally Ex parte Jackson, supra.

    Accordingly   the   trial        court's   admission   of   the

collateral-acts testimony to show intent and its limiting

instruction to the jury that the jury could consider the

testimony for purposes of establishing intent constitutes

plain error because it "'"seriously affect[s] the fairness,

integrity or public reputation of judicial proceedings."'" Ex

parte Brown, 11 So. 3d at 935–36 (quoting Hall v. State, 820

So. 2d at 121).

                         Conclusion

    For the reasons set forth above, we affirm the judgment of

the Court of Criminal Appeals.

    AFFIRMED.

    Stuart, Parker, Main, and Bryan, JJ., concur.

    Murdock and Shaw, JJ., concur in the result.

    Moore, C.J., and Wise, J.,* recuse themselves.




     *Justice Wise was a member of the Court of Criminal
Appeals when that court considered this case.

                                51
