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Tanner v. State5/4/2000
prevent. Id.
. In the present case, the time when the gun was stolen is of great importance. Tanner moved into his house in the latter part of January or early part of February. Without knowing when the gun was taken, the question is then raised as to whether Tanner even knew Wood at the time he allegedly took the weapon. If he did not know Wood at the time the gun was taken, it could hardly be said that Tanner took the gun for the purposes of motive, opportunity, intent, preparation or plan.
. Furthermore, there was no evidence presented at trial to prove Harper's gun was the actual murder weapon. The State provided nothing more than mere suspicion by presenting testimony that Tanner could have stolen a gun and that the gun could have been the murder weapon. There was no evidence presented that Tanner took Harper's gun or that Harper's gun was used to kill Wood. Furthermore, the State failed to identify exactly when the gun was even taken. By allowing this testimony, an inference was made, without any supporting evidence, that Tanner was a thief and a killer. Harper's testimony was clearly more prejudicial than probative and resulted in Tanner being denied a fair trial. Accordingly, the trial court abused its discretion by admitting Harper's testimony about the allegedly stolen gun, and this abuse of discretion deprived Tanner of his right to a fair trial. This case should be reversed and remanded for a new trial.
. For these reasons, respectfully, I dissent.
BANKS, P.J., AND WALLER, J., JOIN THIS OPINION.
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