State of Tennessee v. Robert E. Huse ( 2021 )

03/23/2021
IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT NASHVILLE
February 10, 2021 Session
STATE OF TENNESSEE v. ROBERT E. HUSE
Appeal from the Circuit Court for Dickson County
No. 2013-CR-229 Larry J. Wallace, Judge
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No. M2019-02087-CCA-R3-CD
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The Dickson County Grand Jury charged Defendant, Robert E. Huse, with aggravated child
abuse and first degree felony murder in connection with the death of his infant son, G.S.1
Prior to trial, the State filed a notice of intent to introduce prior bad act evidence that
Defendant abused another child four years before the victim’s death. Against Defendant’s
repeated objections, the trial court allowed the admission of the prior bad act evidence for
the purposes of establishing intent, identity, and common scheme or plan. Following trial,
the jury convicted Defendant as charged, and the trial court sentenced Defendant to life for
first degree felony murder and to a concurrent term of fifteen years for aggravated child
abuse. On appeal, Defendant argues that the evidence was insufficient to support his
convictions and that the trial court erred in admitting the prior bad act evidence, which
prejudiced him. Following a thorough review of the record and applicable case law, we
conclude that the trial court abused its discretion by admitting the prior bad act evidence
and that this error prejudiced Defendant. Therefore, we reverse the judgments of the trial
court and remand for a new trial consistent with this opinion.
Tenn. R. App. P. 3 Appeal as of Right; Judgments of the Circuit Court Reversed
and Remanded
ROBERT L. HOLLOWAY, JR., J., delivered the opinion of the court, in which JOHN EVERETT
WILLIAMS, P.J., and ROBERT W. WEDEMEYER, J., joined.
M. Todd Ridley, Assistant Public Defender, Tennessee District Public Defenders
Conference, Franklin, Tennessee, (on appeal), and William J. Lockert, III, District Public
Defender, and Joshua T. Turnbow, Assistant District Public Defender, Ashland City,
Tennessee, (at trial), for the appellant, Robert E. Huse.
1
It is the custom of this court to refer to minors by their initials.
Herbert H. Slatery III, Attorney General and Reporter; Cody N. Brandon, Assistant
Attorney General; W. Ray Crouch, District Attorney General; and Jennifer J. Stribling,
Assistant District Attorney General, for the appellee, State of Tennessee.
OPINION
Factual and Procedural Background
Motion in Limine to Introduce Prior Bad Acts Under Rule 404(b)
Prior to trial, the State filed a Motion in Limine notifying Defendant of its intent to
“introduce prior bad acts” at trial, pursuant to Tennessee Rule of Evidence 404(b). The
State sought to introduce the details surrounding Defendant’s 2009 conviction for
accessory after the fact to child abuse related to injuries to Defendant’s son, A.H.
At a pretrial 404(b) hearing, Erica Lee Demoss testified that she was Defendant’s
ex-wife and that she had two children with Defendant. Ms. Demoss said that, when she
was pregnant with A.H.,2 Defendant “blacked [her] eyes,” “punched” her, “choked” her,
and “kick[ed] [her] down some steps.” Ms. Demoss testified that Defendant did not believe
that A.H. was his child but that she later had a test establishing Defendant was the father.
Ms. Demoss said that, in November 2008 when A.H. was approximately five
months old, Defendant was watching A.H. at home, and he called Ms. Demoss at her work
because A.H. was “very fussy” and had vomiting and diarrhea. Defendant told Ms.
Demoss that A.H. would throw up as soon as he fed him. Ms. Demoss stated that, due to
A.H.’s premature birth, he often had vomiting and irritability but that, on the day of his
injuries, he was “[i]nconsolable.” Ms. Demoss left work, and she and Defendant took A.H.
to the hospital. After running tests, the doctors found that A.H. had suffered a “subdural
hematoma” on his forehead and the back of his head and that the occipital bone was injured.
Ms. Demoss testified that the doctors also found an “old bleed” on A.H.’s brain. Ms.
Demoss stated that Defendant was “nervous” and “scared” when he received A.H.’s
diagnosis. Ms. Demoss stated that she pled guilty to “child neglect, failure to protect”
related to A.H.’s November 2008 injuries.
Ms. Demoss testified that, after G.S.’s death in 2012, Defendant was shown on
television at G.S.’s gravesite and that he called her to talk to her about the television
appearance. Ms. Demoss stated that Defendant laughed and said, “Didn’t my truck look
good?”
2
Ms. Demoss was not the mother of the victim in the present case, G.S.
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Brittany Neville3 testified that Defendant was the father of the victim, G.S., and that
she was the victim’s mother. She stated that the victim was born healthy and was a “happy
baby.” Ms. Neville testified that, on September 21, 2012, the victim was approximately
two months old and that he began “projectile vomiting.” She explained that the victim
would throw up as soon as she fed him. Ms. Neville said that she took the victim to the
hospital where he was admitted and an ultrasound was performed on his head. The
ultrasound revealed no abnormalities. Ms. Neville recalled that the victim was diagnosed
with colic and thrush and was discharged from the hospital on September 24, 2012, at 2:42
p.m. and that she and Defendant drove G.S. home after stopping at Walmart for supplies
and to drop off the victim’s prescriptions. Ms. Neville testified that, when they arrived
home, they left the victim in his car seat to let him sleep and that they brought the car seat
into the house. Ms. Neville left for work just before 5:00 p.m., and Defendant was alone
with the victim.
While Ms. Neville was at work, Defendant contacted her to ask for the victim’s
social security number so that he could fill a prescription that the Walmart pharmacy had
been unable to fill. About three hours after Ms. Neville arrived at work, Defendant
contacted her again to let her know that he and the victim were headed back to the hospital
because the victim “wasn’t breathing.”
Ms. Neville testified that Defendant said that, while she was at work, he went to get
the victim’s medication and came back home. Then he fed the victim and put the victim
in his swing. The victim was crying, so Defendant took him upstairs to put him in his crib
and then went back downstairs to cook. Ms. Neville stated that it was unusual to put the
victim upstairs unless she or Defendant were also upstairs. Defendant told Ms. Neville that
he could no longer hear the victim crying, so Defendant went to check on the victim and
found him “lifeless” and covered in vomit. Ms. Neville recalled that there was vomit “all
over [her] bed” and “on the sofa” and that “it was everywhere.”
Ms. Neville explained that, during her relationship with Defendant, he “slapped”
her in the face and pushed her down while she was pregnant and that he was “very
controlling.” She said that, “a week or two” after the victim’s death, Defendant got angry
about something and “slammed” their chihuahua on the ground and injured it. About a
week before the victim’s death, Defendant texted Ms. Neville a picture of the victim with
a “black eye” and told her not to “freak out” because the dog had jumped on the victim.
3
Ms. Neville’s name at the pretrial hearing was Brittany Sanders. However, by the time of trial,
her name had changed to Brittany Neville. For the sake of clarity and continuity, we will refer to her as
Ms. Neville.
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Ms. Neville said that, in January 2013, the medical examiner told her that the victim
suffered blunt force trauma to his head with an injury to the occipital bone. She testified
that she called Defendant to confront him about the autopsy report and that Defendant
“cussed” at her and hung up the phone.
On cross-examination, Ms. Neville stated that her older children were around the
victim on September 20, 2012, the day before the victim fell ill. Ms. Neville agreed that it
was not unusual for a colicky baby to cry and that she did not have a lot of experience with
colic.
Dickson Police Department Detective James Stanley Eubank testified that
Defendant made a written statement on November 5, 2008, regarding A.H.’s injuries,
which stated:
[I]t first started about three days ago. [A.H.] started to get very fussy with
everything we do, so he started crying more. And yesterday at 2:30 a.m., I
fed him and he ate, I believe, four ounces and threw up all of it. Then went
to sleep so I let him and now he will not eat or anything. He is very fussy
and very sleepy, so we drove him to Vanderbilt to see what was wrong with
him.
The prosecutor asked Detective Eubank to compare A.H.’s case to the present case.
Detective Eubank testified that Defendant stated that he had been home alone with the
victim and that he had fed the victim four ounces of formula, which was his same story in
A.H.’s case. Detective Eubank agreed that Defendant said that the victim vomited and also
stated that A.H. vomited. He agreed that Defendant said that he put A.H. in his swing and
hit A.H.’s head on the swing and that Defendant also said he put the victim in his swing.
He agreed that both A.H. and the victim had injuries to their occipital bones and contusions
on their foreheads.
On cross-examination, Detective Eubank agreed that Defendant was not convicted
of causing injuries to A.H. He agreed that Ms. Neville failed a polygraph examination
regarding whether she caused the injuries to G.S. but said that she was eliminated as a
suspect.
The prosecutor argued that the circumstances of the case involving A.H. were
“virtually identical” to the circumstances in the present. The prosecutor noted that an injury
to the occipital bone is a “very specific injury” and said that it “is more than coincidence
that both children had the injury to the occipital bone and a contusion to the forehead in
both cases.” The prosecutor argued:
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All of this evidence -- and without the first case, you know, we may be sitting
here thinking, [“M]an, who committed this crime, who did this, who had --
who could have done this[?”] just looking at either case independently and
without knowing about the other. But when you sit these two cases together
and look at the evidence in both of them, what do they do? They all point
directly to [D]efendant because the facts and the scenarios are almost
identical. I mean, they lay -- they lay on top of each other. It’s almost --
almost perfectly.
And I know that is the point of preventing the State from putting on
prior bad acts is that you can’t use somebody’s first DUI to show that they
committed a second. But the reason this is exceptional, Your Honor, is
because the details and the facts are so exact and so close that that’s when
this type of evidence does fall into the 404(b) exception.
Defense counsel responded that there was no clear and convincing evidence that
Defendant committed the prior act of child abuse against A.H. because “[n]o one has said
that the [D]efendant intentionally or accidentally struck [A.H.] in the head or caused the
injuries” to A.H. Defendant also argued that there was no material issue that satisfied the
Rule 404(b) exceptions and that the prior bad act was more prejudicial than probative.
Defense counsel stated:
[T]he State’s own argument indicates how prejudicial this would be to jurors
when the State says [“]if this case stood alone, we might be in a position of
wondering who [did] it. But when you allow in the evidence of the first
alleged prior bad act, then you can know basically who [did] it.[”] That
speaks to a juror hearing that evidence and believing it’s in [D]efendant’s
character to commit that type [of] act. So that shows why it should not come
in.
The prosecutor responded that the identity of the perpetrator was a material issue in
the case, and thus, the prior bad act evidence was admissible. He said that the
circumstances surrounding the two acts showed a modus operandi and that the State wanted
to admit the evidence “to show the identity. That’s all.”
In a written order, the trial court stated:
Evidence of [D]efendant’s involvement, conduct, and statements in the prior
criminal case related to his son [A.H.], as well as testimony from Erica
Demoss in regard to statements [D]efendant made to her, are admissible
under T[ennessee] R[ule of] E[vidence] 404(b). In making this ruling, the
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[c]ourt, in accordance with T[ennessee] R[ule of] E[vidence] 404(b)(1-4)
finds; first, a material issue exists other than conduct conforming with a
character trait and the 404(a) description against character evidence is not
violated. More specifically, the [c]ourt finds that there are three (3) distinct
material issues relevant to this case. They are intent, distinctive
design/modus operandi, and identity. The [c]ourt finds all three applicable.
Next, the [c]ourt finds that it is clear and convincing that [D]efendant was
involved in causing some of [A.H.]’s injuries. . . . In addition, it’s clear and
convincing that the previous acts of [D]efendant involving [A.H.] closely
resembled those alleged in the present case. More specifically, this [c]ourt
heard testimony from Erica Demoss, Brittany [Neville] and Detective
Eubank about the detailed similarities of both the case involving [A.H.], and
the present case, and was able to assess the demeanor of said witnesses. The
[c]ourt found them to be credible for this particular hearing and noted the
following similarities:
a. Each child experienced projectile vomiting;
b. Each child was not eating;
c. Each child had severe nausea;
d. [D]efendant claimed to feed each of them prior to medical attention being
needed (4 oz in both cases)[;]
e. Both children had injuries to the occipital bone;
f. Both children suffered from contusions; and
g. In both cases [D]efendant used and or mentioned using a swing and a crib.
Finally, the [c]ourt finds that the probative value of these acts is
greater than the danger of unfair prejudice.
Motion for Clarification
Defendant filed a Motion for Clarification pursuant to Tennessee Rule of Evidence
404(b)(2), asking the trial court to clarify several points in its Order granting the State’s
Motion in Limine to introduce prior bad acts. Among those points of clarification,
Defendant questioned what specific prior bad acts the trial court found to be proved by
clear and convincing evidence. He stated, “In other words, the [c]ourt didn’t find that
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[D]efendant struck the baby [A.H.], dropped the baby [A.H.], shook the baby [A.H.], or
was an accessory after the fact to any of the other adults having caused the injuries[.]”
Defendant requested that the trial court explain “what prior bad act or acts caused which
injuries and which injuries were caused by what prior bad act[.]” Defendant asked the trial
court to clarify how the similarities between the circumstances in the two cases rose to the
level of modus operandi.
During the hearing on the motion, defense counsel stated that it was undisputed that
the victim died from intentional injuries, so the prior bad act evidence was irrelevant to
establish intent or lack of accident. The prosecutor responded that the victim’s death was
a “signature killing” because it was “very rare to have a father with two biological children
to have the exact same injury with no explainable cause for the injury.” After taking the
motion under advisement, the trial court issued a written Order denying the Motion for
Clarification, stating that it previously complied with the requirements of Rule 404(b) when
it ruled on the State’s Motion in Limine and that no further clarification was necessary.
Standing Objection
The week before trial, defense counsel filed a written “standing objection” to the
prior bad act evidence, stating in part:
The [c]ourt made no finding as to how [A.H.] was injured, when injured and
the method or instrumentality used to injure [A.H.] and made no finding as
to how the baby in the current case [] was injured, when the child was injured
and whether the injury was by blunt force trauma, the baby being shaken, by
accident or any other means.
Mid-Trial 404(b) Hearing
The trial court held another jury-out 404(b) hearing regarding prior bad acts related
to A.H.’s injuries. Dr. Kecia Nicole Carroll testified that she worked at Vanderbilt Medical
Center Children’s Hospital as a general pediatrician and that A.H. was her patient on
November 5, 2008. Dr. Carroll stated that five-month-old A.H. presented as “fussy at
times, sleepy at times, having some vomiting, [and] sort of not eating well.” Dr. Carroll
said that, following a CT scan, she noted that A.H. had a subdural hematoma and a fracture
of the occipital bone. She determined that A.H.’s injuries “were not self-inflicted.” Dr.
Carroll’s report concluded that A.H.’s “severe injuries with no explanation is very
concerning for non-accidental trauma.”
On cross-examination, Dr. Carroll testified that it was not her role to investigate or
determine what caused A.H.’s injuries. Dr. Carroll said that she could not speculate as to
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whether A.H. was shaken or dropped or struck but said that his injuries were “non-
accidental.” She said that she was not qualified to perform or interpret a CT scan, which
was the job of the radiologist.
Defense counsel argued that Dr. Carroll’s testimony regarding A.H.’s injuries was
inadmissible because Dr. Carroll was not qualified to testify as to A.H.’s injuries because
she was not a radiologist; therefore, whatever the radiologist told her would amount to
hearsay. Defense counsel also argued that the video of Defendant’s police interview should
be heavily redacted to remove any mention of A.H.’s injuries or domestic violence, stating
that those portions were “propensity evidence,” irrelevant to the present case, and highly
prejudicial.
The trial court ruled that Dr. Carroll was “sufficiently familiar enough to provide
testimony in this area that she testified to,” and it found that her testimony was relevant.
Regarding the prior bad act evidence from the police interview, the trial court referenced
its previous written order, stating that the evidence went to “intent, modus operandi, []
identity, . . . absence of mistake [or] accident[, and] guilty knowledge.” The trial court
quoted Rule 404(b) and stated, “The underlying theory is that repeated events of a similar
nature make it unlikely that the event at issue was a product of chance or error.” It found
the probative value of the prior bad act evidence outweighed the prejudice to Defendant
and said, “[T]he [c]ourt finds that it’s clear and convincing about this evidence that
[D]efendant [] committed bad acts or conduct to [A.H.] while in his care.” The trial court
cited State v. Dubose, 953 S.W.2d 649 (Tenn. 1997), and stated,
Since the defendant [in Dubose] claimed the injury was accidental,
apparently -- or apparently in the alternative if the injury was inflicted
intentionally, it could have been done by others[,] [t]he proof that he was
responsible for the prior injuries was highly probative on both his intent to
harm the child and also that the fatal injury was not accidental.
The court stated, “Where you’ve got to prove this child has been abused by something
other than accidental means, I think these prior incidents have relevance and the probative
value outweighs the prejudicial effect.”
Defense counsel responded, stating,
Your Honor, we stipulate. We said all along we do not contend
accident. We will stipulate that this was child abuse, was non-accidental.
And based on the fact that we have previously offered to stipulate that and
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offered to stipulate that now, I’ll ask the [c]ourt for a finding as to why it
would come in in regard to show lack of accident when we’re stipulating?4
In response, the trial court referred defense counsel to Dubose and State v. Lacy, 983
S.W.2d 686 (Tenn. Crim. App. 1997) and its previous explanation regarding lack of
accident or mistake.5
Second Mid-Trial 404(b) Hearing
Detective James Lyle stated that, in 2008, he investigated Defendant related to
injuries sustained by A.H. and that Defendant provided him with a written statement.6
Detective Lyle said that Defendant told him that, after A.H. spit up and Defendant cleaned
him, Defendant put A.H. in his swing to sleep. Defendant told Detective Lyle that he then
took A.H. out of his swing and put him in his bed upstairs. Defendant told Detective Lyle
that it was possible that Defendant injured A.H. when he hit his head on the car while
placing him in his car seat. He told Detective Lyle that another possibility was that he hurt
A.H. when he hit his head on his swing while placing him in his swing. Defense counsel
stipulated to the admission of Defendant’s written statement to Detective Lyle.7
Trial
Dickson Fire Department Firefighter Robert Davenport testified that he was
working as a medic for the fire department on September 24, 2012. Mr. Davenport and his
partner responded to a call about an unresponsive child at a residence on Jones Creek Road.
He stated that, when they arrived at the residence, Defendant directed them to the couch
where the victim lay and handed the victim to Mr. Davenport. Mr. Davenport stated that
4
During the jury-out hearing, defense counsel agreed to “do a written stipulation” that the victim
suffered non-accidental injuries. The prosecutor agreed to “enter the order” regarding non-accidental
trauma. However, no written stipulation appears in the record on appeal.
5
The trial court ruled that the video recording of Defendant’s police interview was admissible,
stating that “evidence of convictions or being arrested or polygraph or DCS involvement” and domestic
violence would be redacted. After much discussion during trial regarding redactions and the possible
admission of a transcript rather than the video of the interview, this interview was never presented to the
jury as an exhibit in any form.
6
Detective Lyle read the statement into the record. It was the same statement Detective Eubank
read into the record at the pretrial Motion in Limine hearing.
7
Defense counsel objected to Detective Lyle’s testimony, stating that he had not received anything
regarding his testimony in discovery. Because there was a question as to whether defense counsel received
discovery, the trial court permitted the State to introduce only Defendant’s written statement to Detective
Lyle regarding A.H. The parties agreed not to call Detective Lyle at trial, and Defendant’s handwritten
statement was admitted as an exhibit.
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Defendant was the only person in the residence with the victim. He recalled that the victim
was limp, had no pulse, and was a “grayish, ashy color.” Mr. Davenport observed dried
mucus around the victim’s nose and mouth. EMS arrived shortly after Mr. Davenport, so
Mr. Davenport took the victim to the ambulance and drove the ambulance to the hospital
while the paramedics worked on the victim.
Matthew Daniel Tidwell testified that he was working as a Dickson EMS paramedic
on September 24, 2012, and that he responded to a call of a “child not breathing” on Jones
Creek Road. He recalled that, as soon as he and his partner arrived on the scene, Mr.
Davenport handed him the victim. Mr. Tidwell stated that the victim was limp and had no
pulse. Once he and his partner connected the victim to the monitor, he noted that the victim
was in a “slow rhythm.” With CPR and a bag valve mask delivering oxygen, Mr. Tidwell
and his partner were able to increase the victim’s pulse slightly, and the victim began to
“pink up” in color.
Kara Godwin testified that she worked as an emergency department nurse at
Horizon Medical Center (“Horizon”) in 2012 and that she served as a trauma coordinator.
Ms. Godwin testified that she was on duty when the victim was brought into the emergency
room on September 24, 2012. She recalled that the victim was bluish in color and that the
staff took turns performing CPR. Ms. Godwin stated that the victim “pinked up” a bit but
never regained consciousness. She said that they “lost” the victim shortly thereafter.
Ms. Godwin recalled that the victim’s mother arrived and that she was upset. The
mother told Ms. Godwin that Centennial Medical Center (“Centennial”), where the victim
had been treated earlier in the day, said that the victim was fine that morning. Ms. Godwin
recalled that Defendant was present and was “crying” but that she “never saw tears come
out of his eyes.” She stated that, while everyone has a different response to stressful
situations, in her opinion, Defendant’s reaction was not a “normal response.”
On cross-examination, Ms. Godwin stated that she did not evaluate Defendant to
see if he was in shock.
Brittany Neville testified that she was the victim’s mother and Defendant was the
victim’s father. She said that she was living with Defendant on Jones Creek Road at the
time of the victim’s birth and that her other two children and Defendant’s two children also
lived with them. Ms. Neville said that the victim loved to sleep in his swing downstairs in
the living room. She recalled that, on September 21, 2012, the victim began projectile
vomiting, so she took him to Horizon emergency room. After an hour or two, Horizon
transferred the victim to Centennial. Ms. Neville stated that the victim remained at
Centennial until September 24, 2012, and that he improved while he was at the hospital.
Ms. Neville explained that the victim was discharged with diagnoses of colic and thrush
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and that the victim had prescriptions that needed to be filled. Ms. Neville testified that, on
their way home from the hospital, she and Defendant stopped at Walmart to fill the
prescriptions. Walmart did not have one of the medications.
Ms. Neville recalled that, when they arrived home, she and Defendant did not
remove the victim from his car seat because he was sleeping. Instead, they removed the
seat from the car and brought it into the house. When Ms. Neville left for work at
approximately 5:00 p.m., the victim was still asleep in his car seat.
Ms. Neville testified that Defendant texted her after she arrived at work and asked
for the victim’s social security number so he could try to fill the other prescription. Three
hours after she arrived at work, Defendant called Ms. Neville and told her the victim was
not breathing and that he was following an ambulance to Horizon. Ms. Neville stated that
she left work and went to the hospital. She stated that she was with the victim when he
died. She said that she and Defendant split up within a month after the victim’s death. Ms.
Neville said that, in January 2013, she received the autopsy report and that she took it to
the police.
On cross-examination, Ms. Neville testified that Defendant left for work at
approximately 5:00 p.m. on September 21, 2012. She said that her other two children were
also at her house on the morning of September 21, 2012, after Defendant left for work.
Detective Eubank testified that he was on call on September 24, 2012, and that he
received a call to go to Horizon for a “coded infant.” Detective Eubank began a “sudden
unexplained infant death” investigation. He said that he did not observe any external
injuries on the victim that were concerning. Detective Eubank recalled that he pulled
Defendant aside and asked him some questions. He testified that Defendant told him that
the victim had been at Centennial earlier in the day. Defendant said that, after Ms. Neville
left for work, the victim became fussy, so Defendant gave the victim four ounces of
formula. Defendant told Detective Eubank that the chihuahua kept barking and upsetting
the victim, so Defendant moved the victim upstairs to his crib. Defendant said that he went
back downstairs to cook dinner. Defendant told Detective Eubank that, when the victim
stopped crying, Defendant went back upstairs to check on him and found him unresponsive.
Detective Eubank testified that Defendant never mentioned any sort of accident where the
victim hurt his head.
Detective Eubank testified that, during his emergency room interview with
Defendant, Defendant said that he fed the victim at 6:45 p.m., burped the victim, and then
set him down for approximately ten to fifteen minutes in his swing, and then ten to fifteen
minutes in his bed. Detective Eubank agreed that that would put the time Defendant
discovered the victim unresponsive at about 7:10 p.m. Detective Eubank reviewed a CVS
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pharmacy receipt procured by Defendant for nystatin, which was dated September 24,
2012, at 6:52 p.m. Detective Eubank said that the pharmacy receipt showed a discrepancy
in Defendant’s timeline. Detective Eubank agreed that the 9-1-1 call occurred at 8:12 p.m.
Dr. Carroll testified that, in November of 2008, she evaluated Defendant’s five-
month-old child, A.H., for possible child abuse. She said that A.H. was brought to the
hospital for vomiting and fussiness. She read her report to the jury, which stated:
[Defendant] reports early on day of admission, 11/4[/2008], patient drank a
four-ounce bottle. [A.H.] [“]vomited a lot and was fussy.[”] [Defendant]
reports [that he] [“]cleaned [A.H.], gave him his paci and [A.H.] fell asleep .
. . for about 45 minutes and then he was up about every 10 or 15 minutes
because his paci was out. [Defendant] reports [that Ms. Demoss] woke up
about 6:30 a.m. and tried to feed [A.H.,] but he [“]was real sleepy so figured
he was not hungry.[”] [Defendant] reports they tried to feed [A.H.] again,
but he still would not eat. Only wanted to sleep. . . . [Defendant] reports
[“]we brought him in because he was fussy, real sleepy, and not eating.[”]
[Defendant] reports [A.H.] did not have a history of a car accident, fall, any
shaking, or other trauma. [Defendant] did report that the last time [A.H.] was
hospitalized they [“]shaved the back of his head for an IV but they never put
one in.[”] [Defendant] reports he was beginning to wonder if whether they
hit the soft spot in the back of his head.
Dr. Carroll stated that A.H. had a fracture to his left occipital bone and a subdural
hematoma. Her report concluded, “[A.H.’s] severe injuries are not self-inflicted. . . . And
per the history as reviewed and obtained from the parents, there is no explanation for the
injuries. [A.H.]’s severe injuries with no explanation is very concerning for non-accidental
trauma.”
On cross-examination, Dr. Carroll read another portion of her report:
[Ms. Demoss] reports [that A.H.] had been eating well, but before coming in
for the past few days he was extremely cranky, but that it might be [] he did
not sleep [well]. [Ms. Demoss] reports on the day of admission “in the
morning he ate at 2:30 and projectile puked everywhere and from then on he
did not eat. He’d cry, but from then on he would not eat and he would just
be really whiny. [Ms. Demoss] figured it was his acid reflux.” [Ms. Demoss]
reports she called a phone nurse who advised that [A.H.] be brought in for
evaluation.
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Dr. Carroll agreed that Ms. Demoss said that A.H.’s symptoms began at 2:30 a.m.
on the day he was brought into the hospital. She read a prior medical report from
Vanderbilt Medical Center, dated August 12, 2008, which stated, “[Ms. Demoss] appeared
overwhelmed at times with care for infant and voiced that she gets little support from
[Defendant] or mother-in-law. She has [] a one-year-old infant at home currently as well.
Encouraged to get rest and self-care.” Dr. Carroll read another medical report from
Vanderbilt Medical Center, dated June 2, 2008, which stated,
[A.H.] is an almost four-month-old male who is a 24-week pre[e]mie. He
was cared for in neonatal ICU at Centennial. . . . He presented today with
three days of projectile vomiting, which is worse than his usual persistent
vomiting secondary to his reflux. [Ms. Demoss] is very frustrated and very
tired. She says he screams and hollers, throws his head back, wants to eat
and then vomits almost immediately after he drinks. He drinks
approximately four to five ounces every three hours; however, sometimes
she does re-feed him after he vomits. She’s quite stressed and does not want
to go home with him.
Dr. Carroll read another medical note from Vanderbilt Medical Center,8 which stated,
“[Ms. Demoss] seems disconnected from baby. NICU says they have impaired for
appropriate bonding.”
Dr. David Zimmerman testified as an expert in forensic pathology and stated that
he worked as a medical examiner in Davidson County. He stated that he performed an
autopsy on the victim on September 25, 2012. Dr. Zimmerman said that he found a “faint
contusion” on the victim’s “right forehead” and a “bilateral subdural hemorrhage” on both
sides of the victim’s head. He explained that a “subdural hemorrhage” was “blood that’s
on the surface of the brain.” Dr. Zimmerman testified that he also found an “epidural
hemorrhage,” which was “blood between the occipital bone [and] one of the membranes
that surrounds the brain.” He noted that there was a subdural hemorrhage around the spinal
cord. Dr. Zimmerman concluded that the victim’s injuries and subsequent death were a
result of blunt force trauma to the head and that the manner of death was homicide. He
explained, “The head would have to have been struck by something or struck a solid object
in order to cause the dura to separate from the skull like that and to cause the subdural
hemorrhage.” Dr. Zimmerman also included “shaking” as blunt force trauma. He
described “shaken baby syndrome” as
8
The date of this third medical record is not mentioned in the transcript, and none of the three
medical records presented on cross-examination were admitted as exhibits.
- 13 -
someone is holding onto the infant and is shaking them vigorously back and
forth. The head is flopping back and forth or side to side. The brain moves
inside the skull with -- because of the changing and momentum, the head
comes forward, the skull stops moving but the brain may continue to move
inside the skull a little bit, and then the sudden change of direction, the head
flops back. The same thing happens repeatedly as long as the shaking
continues to occur.
Dr. Zimmerman compared the force necessary to cause these injuries to the force
involved in a motor vehicle collision. He said, “It’s not just falling off a chair or something
like that.” Dr. Zimmerman concluded that symptoms from the victim’s bleeding likely
began anywhere from minutes to two hours after the application of force. He described the
possible symptoms to include “loss of consciousness, difficulty breathing, irritability and
crying, not eating, and even death.” He said that blood clotting can begin anywhere from
eight to seventy-two hours after the application of force and noted that the victim had “non-
adherent hemorrhage with focal small areas of acute organization.” Dr. Zimmerman stated
that he reviewed the victim’s prior medical records to rule out natural causes for the
injuries.
On cross-examination, Dr. Zimmerman agreed that no one at Centennial performed
a CT or MRI scan of the victim in the days preceding his death. He agreed that an
ultrasound was not the proper diagnostic tool for a brain bleed and that the ultrasound
performed on the victim at Centennial may not have detected a possible brain bleed. He
agreed that the injuries to the victim occurred between eight and seventy-two hours prior
to the time of death.
On redirect examination, Dr. Zimmerman stated that he could not give an exact time
for the application of force but could only give a rough estimate. He explained that, from
5:00 p.m. when Ms. Neville left for work and 9:22 p.m. when the victim died, the length
of time was not enough time for the blood to clot.
On recross-examination, Dr. Zimmerman stated that “[t]he autopsy microscopic
findings are not consistent with the injury occurring” between 5:00 p.m. when Ms. Neville
left for work and 9:22 p.m. when the victim died.
On further re-direct examination, Dr. Zimmerman stated that it was possible that the
victim could have suffered the injuries while he was at Centennial earlier in the day but
that he has never seen a blunt force trauma injury which occurred at a hospital.
Dr. Travis Wilson Crook testified as an expert in pediatrics and stated that he was a
“pediatric hospitalist” with Vanderbilt Medical Center. He said that he had treated about
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10,000 children during his career and that “hundreds” of those children had brain injuries.
Dr. Crook stated that he was working at Centennial on September 21, 2012, and that he
attended to the victim. He said that the victim was admitted with vomiting, diarrhea,
dehydration, and “not tolerating his f[ood.]” Dr. Crook explained that an ultrasound scan
is “useful for looking at gross structures of the brain” and that the ultrasound scan of the
victim’s brain was normal. He agreed that neither a CT scan nor an MRI scan were
performed at Centennial. Dr. Crook recalled that, after four days of treatment, the victim
had improved and was alert, playful, and feeding normally, so the victim was discharged
on September 24, 2012.
Dr. Crook testified that he reviewed the victim’s autopsy report. He explained that
the victim had two different types of bleeding in his brain – epidural and subdural. He said
it was impossible that these injuries occurred while the victim was a patient at Centennial
because “[t]he degree of this amount of head bleed would have caused acute
decompensation. . . . [a]nd then quickly proceed[ed] to death.” He stated that the victim
would not have improved the way he did if he had had this injury before or during his time
at Centennial. Dr. Crook estimated that the victim died within minutes of receiving his
injuries.
Dr. Crook said that epidural and subdural bleeds are caused by two different
mechanisms. He explained that an epidural bleed is caused by “blunt force trauma, direct
impact” and that a subdural bleed is caused by “a shearing force, usually caused by sudden
acceleration/deceleration” like those found during a “car accident that comes to a sudden
stop” or with “shaking” as in “shaken baby syndrome.” He stated that falling off a chair
or couch and hitting the head would not be enough force to cause the victim’s subdural
injuries. Dr. Crook said, “[W]e don’t even check for [brain] bleeds unless it’s a fall of four
feet or higher. . . onto a hard surface.”
Dr. Crook said that it was very difficult to tell the age of a bleed beyond “new” and
“old,” as in “very, very fresh, within hours” or if has been bleeding for a week. Dr. Crook
did not think that Dr. Zimmerman’s estimation of “eight to seventy-two hours” was an
“unreasonable best guess” but stated that it was “very difficult to tell with any certainty
that [] type of window.” Dr. Crook said that it was just as likely that the injuries occurred
one hour before death as it was that they occurred eight hours before death.
Dr. Crook stated that there were “fourteen different steps” involved in blood clotting
and that disruption of any of the fourteen steps could “throw off” any degree of accuracy
for a timeline of injury. Dr. Crook said that the victim’s “massive head injury” likely
caused a “neurochemical disruption,” which disrupted his clotting process. Dr. Crook also
noted that, when death occurred, the liver stopped receiving blood so the liver was “no
- 15 -
longer activating factors to cause that clotting to occur.” Dr. Crook concluded that the
victim’s injuries occurred within “a couple hours” of his death.
On cross-examination, Dr. Crook testified that the victim presented with vomiting
and diarrhea “two days prior to arrival” at Centennial. Dr. Crook stated that an
undiagnosed brain bleed could cause projectile vomiting. He agreed that the victim’s
injuries could have occurred from a single incident. He denied that the victim could have
suffered any shaking prior to September 24, 2012, that would result in these injuries.
Dr. Crook stated that he had never performed an autopsy. He said that he did not
examine the actual tissue samples taken from the victim during the autopsy. Dr. Crook
testified that, “without a shadow of a doubt[,] this child did not have these injuries while
he was in the hospital [at Centennial].” He agreed that, if the victim was admitted to
Centennial with a brain bleed, and Dr. Crook failed to diagnose the brain bleed, Dr. Crook
would be subject to a malpractice lawsuit. Dr. Crook denied that the threat of a lawsuit
was his motive for disagreeing with Dr. Zimmerman. He explained:
[T]he child continued to get better. If this child had the degree of bleeds that
he had when he was [at Centennial], one, he would have perished within the
first hour or so of arriving. Number two, he would not have gotten better
without extreme intervention, like I mentioned, neurological or neurosurgery
intervention where they drain the bleed. None of those occurred and this
child returned to normal.
Dr. Crook agreed that a parent who was not a trained medical professional might
not notice subtle symptoms in a child with a head injury. He said that the ultrasound scan
performed at Centennial would have picked up the degree of brain bleed that was seen on
the autopsy. Dr. Crook agreed that an ultrasound scan would not have picked up a small
brain bleed. However, Dr. Crook explained that, if the victim had a small brain bleed that
continued to grow over time, he “would have gotten extremely sick very quickly” instead
of improving while at Centennial. He explained, “[T]his is not one of those things where
you see no symptoms, no symptoms, and then all of a sudden there’s a tipping over point.
You would have seen a progression of symptoms with a child decompensating over a
period of time.”
During the State’s closing arguments, the prosecutor referenced A.H.’s injuries,
stating that in “2008, [A.H.] was five months old and had almost the exact same injuries.
And [D]efendant gave almost the exact same story down to the amount of formula he gave
his child.” During the State’s rebuttal closing, the prosecutor again referenced A.H.’s
injuries, stating, “we’ve got two infants” with the “same injury.” The prosecutor noted that
Defendant’s statements to police in both cases were that he was home alone with each baby
- 16 -
and that he fed each baby four ounces of formula. He said, “That, ladies and gentlemen, is
more than a coinciden[ce].” Upon objection from defense counsel for submitting
propensity evidence, an out-of-jury hearing was held, and the trial court agreed to allow
defense counsel to prepare a curative instruction for its review. Upon return of the jury,
the prosecutor continued:
[A.H.], age five months. Residence, [] Jones Creek Road. Injury, subdural
bleed, occipital bone. Mother, [Ms. Demoss]. Defendant’s story, fed four
ounces, put into a crib. Later that day transported to Vanderbilt.
[The victim], residence [] Jones Creek Road. Injury, subdural bleed,
occipital bone. Mother, [Ms.] Neville. Defendant’s story, four ounces of
milk, swing, crib, hospital.
Following closing arguments, the trial court reviewed defense counsel’s proposed
curative instruction and rejected it.9 Instead, when the trial court instructed the jury, it
included a limiting instruction that it could only consider prior bad act evidence to establish
identity, common scheme or plan, and/or intent:
If from the proof you find [that D]efendant committed the crime other
than that for which he is on trial, you may not consider such evidence to prove
his disposition to commit such a crime as that on trial.
This evidence may only be considered by you for the limited purpose
of determining whether it provides:
[D]efendant’s identity. That is, such evidence may be considered by
you if it tends to establish [D]efendant’s identity in the case on trial.
A scheme or plan. That is, such evidence may be considered by you if
it tends to establish that [D]efendant engaged in a common scheme or plan for
the commission of two or more crimes so related to each other that proof of
one tends to establish the other.
[D]efendant’s intent. That is, such evidence that may be considered by
you if it tends to establish that [D]efendant actually intended to commit the
crime with which he is presently charged.
9
The trial court stated that defense counsel’s proposed jury instruction would be included as Exhibit
B for identification purposes only. However, no Exhibit B appears in the record on appeal.
- 17 -
Such evidence of another crime, if considered by you for any purpose,
must not be considered for any purpose other than that specifically stated.
Following deliberations, the jury convicted Defendant of first degree felony murder
in count one and aggravated child abuse in count two. The trial court sentenced Defendant
to concurrent sentences of life for first degree felony murder and fifteen years for
aggravated child abuse. Defendant filed a timely motion for new trial, which the trial court
denied. Defendant now timely appeals.
Analysis
On appeal, Defendant argues that the evidence was insufficient to sustain his
convictions. He also argues that the trial court erred by admitting prior bad act evidence
in contravention of Tennessee Rule of Evidence 404(b).
I. Sufficiency
Our standard of review for a sufficiency of the evidence challenge is “whether, after
viewing the evidence in the light most favorable to the prosecution, any rational trier of
fact could have found the essential elements of the crime beyond a reasonable doubt.”
Jackson v. Virginia, 443 U.S. 307, 319 (1979) (emphasis in original); see also Tenn. R.
App. P. 13(e). Questions of fact, the credibility of witnesses, and weight of the evidence
are resolved by the fact finder. State v. Bland, 958 S.W.2d 651, 659 (Tenn. 1997). This
court will not reweigh the evidence. Id. Our standard of review “is the same whether the
conviction is based upon direct or circumstantial evidence.” State v. Dorantes, 331 S.W.3d
370, 379 (Tenn. 2011) (quoting State v. Hanson, 279 S.W.3d 265, 275 (Tenn. 2009))
(internal quotation marks omitted).
A guilty verdict removes the presumption of innocence, replacing it with a
presumption of guilt. Bland, 958 S.W.2d at 659; State v. Tuggle, 639 S.W.2d 913, 914
(Tenn. 1982). The defendant bears the burden of proving why the evidence was
insufficient to support the conviction. Bland, 958 S.W.2d at 659; Tuggle, 639 S.W.2d at
914. On appeal, the “State must be afforded the strongest legitimate view of the evidence
and all reasonable inferences that may be drawn therefrom.” State v. Vasques, 221 S.W.3d
514, 521 (Tenn. 2007).
As charged here, first degree felony murder is “[a] killing of another committed in
the perpetration of . . . aggravated child abuse[.]” Tenn. Code Ann. 39-13-202(a)(2)
(2012). “No culpable mental state is required for conviction under [Tennessee Code
Annotated section 39-13-202(a)(2)], except the intent to commit the enumerated
offenses[.]” Tenn. Code Ann. 39-13-202(b) (2012). “A person commits the offense of
- 18 -
aggravated child abuse . . . who commits child abuse, as defined in [Tennessee Code
Annotated section] 39-15-401(a) . . . and[] [t]he act of abuse results in serious bodily injury
to the child[.]” Tenn. Code Ann. § 39-15-402(a)(1) (2012). “Any person who knowingly,
other than by accidental means, treats a child under eighteen (18) years of age in such a
manner as to inflict injury commits” child abuse. Tenn. Code Ann. § 39-15-401(a) (2012).
Here, the victim was admitted to Centennial for three days with gastrointestinal
issues and dehydration. Dr. Crook tended the victim and testified that the victim had fully
recovered prior to his discharge from Centennial on September 24, 2012. Defendant and
Ms. Neville filled one of the victim’s prescriptions after they left Centennial and then went
home. Ms. Neville left for work shortly thereafter, at approximately 5:00 p.m. and left the
victim alone with Defendant. Defendant called 9-1-1 at 8:12 p.m. Mr. Davenport testified
that, when he arrived with EMS, only the Defendant and the victim were at the residence.
Dr. Crook testified that it was impossible that the victim’s injuries occurred while he was
a patient at Centennial because “[t]he degree of this amount of head bleed would have
caused acute decompensation. . . . [a]nd then quickly proceed[ed] to death.” He stated that
the victim would not have improved the way he did while at Centennial if he had had this
injury before or during his time at Centennial. Dr. Crook estimated that the victim died
within minutes to “a couple hours” of receiving his injuries. Both Dr. Zimmerman and Dr.
Crook testified that the injuries were non-accidental. Taken in the light most favorable to
the State, the evidence was sufficient for a rational trier of fact to find that Defendant was
alone with the victim when the injuries occurred, that Defendant knowingly inflicted the
injuries, and that the victim died as a result of those injuries. Defendant is not entitled to
relief on this issue.
II. Rule 404(b): Prior Bad Act Evidence
Defendant argues that the details regarding A.H.’s injuries and Defendant’s
subsequent conviction for “child abuse, accessory after the fact” related to A.H.’s injuries
was improper “prior bad act” evidence that should have been excluded by Rule 404(b) and
that the error prejudiced Defendant.
The State responds that the prior bad act evidence was admissible under the Rule
404(b) exceptions to show intent and “absence of mistake or accident.” Alternatively, the
State argues that any error did not prejudice Defendant.
A. Standard of Review
Rule 404(b) of the Tennessee Rules of Evidence provides:
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Evidence of other crimes, wrongs, or acts is not admissible to prove
the character of a person in order to show action in conformity with the
character trait. It may, however, be admissible for other purposes. The
conditions which must be satisfied before allowing such evidence are:
(1) The court upon request must hold a hearing outside the jury’s
presence;
(2) The court must determine that a material issue exists other than
conduct conforming with a character trait and must upon request state on the
record the material issue, the ruling, and the reasons for admitting the
evidence;
(3) The court must find proof of the other crime, wrong, or act to be
clear and convincing; and
(4) The court must exclude the evidence if its probative value is
outweighed by the danger of unfair prejudice.
Tenn. R. Evid. 404(b); see also State v. Thacker, 164 S.W.3d 208, 240 (Tenn. 2005); State
v. Parton, 694 S.W.2d 299, 302 (Tenn. 1985). Rule 404(b) is generally one of exclusion,
but exceptions to the rule may occur when the evidence of the otherwise inadmissible
conduct is offered to prove the motive of the defendant, identity, intent, the absence of
mistake or accident, opportunity, or a common scheme or plan. State v. Toliver, 117
S.W.3d 216, 230 (Tenn. 2003); State v. McCary, 119 S.W.3d 226, 243 (Tenn. Crim. App.
2003). If the trial court substantially complies with the procedural requirements of Rule
404(b), we will review the trial court’s determination for an abuse of discretion. Thacker,
164 S.W.3d at 240 (citing DuBose, 953 S.W.2d at 652; State v. Baker, 785 S.W.2d 132,
134 (Tenn. Crim. App. 1989)). We will reverse the trial court’s decision for abuse of
discretion “only when the court applied an incorrect legal standard, or reached a decision
which is against logic or reasoning that caused an injustice to the party complaining.” State
v. Gilliland, 22 S.W.3d 266, 270 (Tenn. 2000) (quoting State v. Shirley, 6 S.W.3d 243, 247
(Tenn. 1999)) (internal quotation marks omitted).
Here, Defendant concedes that the trial court followed the procedural requirements
of Rule 404(b), and we agree. Thus, we will review the trial court’s decision for an abuse
of discretion.
- 20 -
B. Rule 404(b) Exception: Identity
Defendant argues that the prior bad act and the offense in the present case are not
so distinct as to constitute a “signature crime,” which is required for admission under Rule
404(b) for the purpose of identity. The State concedes this point, and we agree.
It is undisputed on appeal that the identity of the perpetrator was a material issue in
this case. To admit evidence under Rule 404(b) for the purpose of identity, the methods
employed in the prior bad acts and the charged offense must show a “signature crime.” See
State v. Jones, 450 S.W.3d 866, 894-96 (Tenn. 2014); State v. Donald Joseph Powell, No.
M2014-01132-CCA-R3-CD, 2015 WL 3563106, at *8 (Tenn. Crim. App. June 8, 2015).
In State v. Jones, our supreme court explained:
Where, as here, the material issue at trial is the identity of the [perpetrator],
[t]he probative value of evidence of other crimes . . . depends
upon the extent to which it raises an inference that the
perpetrator of the prior offenses was the perpetrator of the
offense in issue. Both the existence and the strength of an
inference proceeds through an evaluation of the similarities
between the prior offense and the charged crime. Thus, if the
characteristics of both the prior offense and the charged
offense are not in any way distinctive, but are similar to
numerous other crimes committed by persons other than the
defendant, no inference of identity can arise. An inference of
identity from prior crimes can only arise when the elements of
the prior offense and the charged offense, singly or together,
are sufficiently distinctive to warrant an inference that the
person who committed the prior offense[] also committed the
offense on trial. . . . The probative value of evidence of other
crimes on the issue of identity always depends upon the
strength of the inference; when the inference of identity is
weak, evidence of prior crimes should be excluded because
under such circumstances the prejudicial effect of the evidence
inevitably outweighs the probative value of that evidence.
450 S.W.3d at 895 (quoting Bunch v. State, 605 S.W.2d 227, 230 (Tenn. 1980)) (emphasis
in original). Our supreme court in Jones continued:
Although the evidence of the other crime need not be identical to the
evidence of the charged offense, for other crime evidence to have probative
- 21 -
value it must bear a sufficient connection to the issue of identity so as to
establish the defendant’s commission of “signature crimes.” To meet this
threshold, the similarities of the crimes must do more than simply outweigh
their differences—there must be a “‘highly distinctive common mark’”
between the crimes. Bunch, 605 S.W.2d at 231 (quoting People v.
Cavanaugh, 444 P.2d 110, 117 (Cal. 1968)); see also State v. Moore, 6
S.W.3d 235, 240 (Tenn. 1999) (quoting State v. Carter, 714 S.W.2d 241, 245
(Tenn.1986)) (“Before multiple offenses may be said to reveal a distinctive
design, and therefore give rise to an inference of identity, the ‘modus
operandi employed must be so unique and distinctive as to be like a
signature.’”). The test, therefore, is not whether the evidence demonstrates
that the defendant committed both crimes, but whether the defendant used a
peculiar and distinctive method in committing the crimes. See Young v.
State, 566 S.W.2d 895, 897 (Tenn. Crim. App. 1978). For example, in Harris
v. State [227 S.W.2d 8, 11 (Tenn. 1950)], this Court recognized that
a particular strat[a]gem or method [may have] such unusual
particularities that reasonable men can consider that it would
not likely be employed by different persons. Many men
commit murder, but Jack the Ripper used his knife in a manner
so peculiar that when his crimes were viewed together there
could be little doubt that they were committed by the same
man. Merely the fact, however, that a series of such crimes
may be committed with a knife will not render them unusual
enough to identify the perpetrator of one as the perpetrator of
the others.
Id. “[M]ere similarity in the manner in which two crimes are committed does not produce
the relevance necessary for admission—uniqueness does.” State v. Roberson, 846 S.W.2d
278, 280 (Tenn. Crim. App. 1992) (emphasis added). “Although the offenses need not be
identical in every respect, the method employed in committing the offenses must have
‘such unusual particularities that reasonable men can conclude that it would not likely be
employed by different persons.’” Toliver, 117 S.W.3d at 229 (quoting Shirley, 6 S.W.3d
at 248) (emphasis in original). “[T]he less unique and distinctive the methods, the less
appropriate the inference” that a defendant committed both crimes. Roberson, 846 S.W.2d
at 280.
Here, the trial court noted several similarities between the prior bad act involving
A.H. and the circumstances of the present case:
a. Each child experienced projectile vomiting;
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b. Each child was not eating;
c. Each child had severe nausea;
d. [D]efendant claimed to feed each of them prior to medical attention being
needed (4 oz in both cases)[;]
e. Both children had injuries to the occipital bone;
f. Both children suffered from contusions; and
g. In both cases [D]efendant used and or mentioned using a swing and a crib.
None of these circumstances, alone or taken together, constitute a “signature crime”
of such uniqueness that an inference that Defendant was the perpetrator would arise. See
id. Innumerable parents care for sick children every day, feed their infants four ounces of
formula, and put them in swings and cribs. Moreover, the injuries sustained by the infants
in both cases – contusions and injuries to their occipital bones – were not so unusually
particular that reasonable individuals could conclude that the method involved in causing
the injuries “would not likely be employed by different persons.” Toliver, 117 S.W.3d at
229. Thus, the trial court abused its discretion in admitting the evidence for the purpose of
showing the identity of the perpetrator.
C. Rule 404(b) Exception: Intent
Defendant argues that the trial court erred by admitting the prior bad act evidence
for the purpose of establishing intent because intent was not a material issue at trial. He
contends that, because he stipulated that the victim’s injuries were non-accidental, the trial
court should not have admitted the prior bad act evidence to show intent.
The State responds that the trial court properly admitted the evidence to show intent
and “absence of mistake or accident.” It asserts that Defendant’s offer to stipulate to the
non-accidental nature of the victim’s injuries does not preclude the State’s ability to present
evidence to establish the essential elements of the offense.
Initially we note that, while the trial court ruled that the prior bad act evidence was
admissible to show absence of mistake or accident, it did not specifically instruct the jury
to consider the evidence for that purpose. The jury instructions reveal that the trial court
only instructed the jury that they could consider the evidence as proof of Defendant’s
intent, identity, or to show a common scheme or plan. Thus, we will not consider the
admissibility of the evidence to show absence of mistake or accident, as the State argues
- 23 -
on appeal. See State v. Christopher Bailey, No. W2014-02434-CCA-R3-CD, 2016 WL
7742753, at *7 (Tenn. Crim. App. Apr. 8, 2016) (choosing not to consider whether prior
bad act evidence would have been admissible to show context because the trial court
instructed the jury only on intent).
Next, while Defendant agreed to stipulate prior to trial that the victim’s injuries were
non-accidental, this offer to stipulate did not automatically render immaterial the issue of
intent. See State v. James, 81 S.W.3d 751, 761 (Tenn. 2002) (stating that, “[i]n lieu of
accepting a stipulation to certain facts, the State may satisfy its burden of proving every
element of the charged offense beyond a reasonable doubt . . . by introducing evidence of
its own choice in support of those same facts.”)10 “[A] mere offer to stipulate evidence
does not render that evidence irrelevant under Rule 404(b)(2).” Id.; but see Bunch, 605
S.W.2d at 230 (“[E]vidence that the defendant committed another crime is admissible only
if the ground for relevance is actually being contested in the case on trial.”).
Although the issue of intent was not immaterial, the admission of prior bad act
evidence to show intent was improper in this case. See e.g., State v. Benjamin Gunn, No.
W2013-02006-CCA-R3-CD, 2015 WL 847431, at *4 (Tenn. Crim. App. Jan. 30, 2015)
(quoting W. MARK WARD, TENNESSEE CRIMINAL TRIAL PRACTICE § 22:24 (2014-2015
ed.)) (“[T]he ‘intent’ exception [to Rule 404(b)] should not allow the introduction of other
crimes simply to allow the [S]tate to prove the applicable mens rea.”). When prior bad act
evidence is admitted to show intent,
the [S]tate should be required to articulate a tenable, non-propensity, non-
character theory of logical relevance. This means that the state should be
able to demonstrate that the prior crime is “connected” to the present crime
in some unique way such that it has probative value on the issue of intent
apart from any inference that [the] defendant simply has the propensity to
commit that type of offense.
WARD, TENNESSEE CRIMINAL TRIAL PRACTICE § 22:24 (2020-2021 ed.); see also State v.
Cortney R. Logan, No. M2014-01687-CCA-R3-CD, 2015 WL 5883187, at *9 (Tenn. Crim.
App. Oct. 8, 2015), perm. app. denied (Tenn. Feb. 18, 2016). “Among possible
considerations in assessing whether the crimes are [‘]connected[’] is whether the offenses
involved the same victim, the same location, the time lapse between the offenses, and
whether they involved any unique modus operandi.” WARD, TENNESSEE CRIMINAL TRIAL
PRACTICE § 22:24 n. 46 (2020-2021 ed.); see also State v. Keith A. Otey, No. M2000-
10
Here, the prosecutor finally agreed to the stipulation during a mid-trial Rule 404(b) hearing,
stating, “Judge, we’ll be happy to enter the order that it was non-accidental trauma.” However, at this point
during trial, the prior bad act evidence had already been introduced to the jury through Dr. Carroll’s
testimony. No order of stipulation was entered, and nothing was said to the jury regarding the stipulation.
- 24 -
01809-CCA-R3-CD 2002 WL 560960 (Tenn. Crim. App. Apr. 16, 2002) (reversing where
trial court allowed proof of a drug sale committed six years prior to the offense on trial
because “there was no logical connection or relationship between the [d]efendant’s prior
drug sale and the [d]efendant’s possession of drugs in the present case”); State v. Leslie
Brian Willis, No. 01C01-9802-CC-00068, 1999 WL 510602, at *5 (Tenn. Crim. App. July
15, 1999) (finding error where the trial court admitted prior bad act evidence for the
purpose of intent when there was “no logical progression nor any cause-and-effect
relationship” between the two crimes, “only the extrapolation that, if the defendant
intended rape of a female in 1985, he must be the sort of person who intended to rape”
another woman”), perm. app. denied (Tenn. Oct. 23, 2000). However, “when the material
issue is intent, the facts and circumstances connecting the two crimes need not be so unique
and distinctive as to constitute signature crime or distinct modus operandi.” Donald Joseph
Powell, 2015 WL 3563106, at *8.
Here, the State failed to show a sufficient logical connection between the prior bad
act evidence and the charged offense, and thus, the trial court should not have admitted the
prior bad act for the purpose of intent. The events involved two different children, occurred
four years apart, and showed no cause-and-effect relationship. That Defendant fed both
children, that he placed both children in swings and cribs, and that both children suffered
head trauma are inadequate to create a logical connection between the two events, other
than Defendant’s propensity to commit the charged offense. “The conclusion that the
defendant had the specific intent to commit the crime charged on a specific day and time
because he . . . committed a similar crime on another day and time requires an inference
that the defendant has the propensity to commit the crime on trial[,] which is precisely what
is condemned by [] Rule [404(b)].” Benjamin Gunn, 2015 WL 847431, at *4. While the
trial court relied on Dubose for its ruling that the prior bad act evidence was admissible to
show intent, we distinguish the present case because the incidents in Dubose involved the
same victim and occurred close in time, four months apart, thus showing a settled purpose
to harm the victim. DuBose, 953 S.W.2d at 654; see State v. Jarman, 604 S.W.3d 24, 49
(Tenn. 2020).
Finally, the admission of the prior bad act to show intent was unnecessary and
unfairly prejudicial. Defendant repeatedly offered to stipulate that the victim’s injuries
were non-accidental trauma, and defense counsel told the trial court, “We will stipulate
that this was child abuse.” While the State was free to reject the stipulation, the prosecutor
stated during a mid-trial Rule 404(b) hearing, “Judge, we’ll be happy to enter the order that
it was non-accidental trauma.” Regardless of the stipulation, the State introduced ample
medical evidence from both expert witnesses that the victim’s injuries were non-accidental,
and no witness testified that the victim’s injuries could have been accidental or
unintentional. Even the prosecutor stated in her closing argument that the issues of intent
and absence of mistake were “really not in dispute.” In light of the evidence available to
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the State at trial, the admission of the prior bad act evidence was unnecessary to prove
intent, and the danger of unfair prejudice outweighed its probative value. See Jones, 450
S.W.3d at 894 (stating that the trial court must “weigh the[] concerns of unfair prejudice
against any probative value of the proffered evidence, which will depend upon the actual
need for the evidence in light of the issues at trial and the other evidence available to the
State”); State v. Donnell Tunstall, No. W2014-00257-CCA-R3-CD, 2015 WL 1089742, at
*8 (Tenn. Crim. App. Mar. 10, 2015) (concluding that identity was not a material issue for
the purpose of Rule 404(b) because the defendant did not dispute that he was the victim’s
attacker); State v. Wesley M. Gifford, Jr., No. M2013-00253-CCA-R3-CD, 2014 WL
345345, at *7 (Tenn. Crim. App. Jan. 30, 2014) (finding that the trial court erred in
admitting prior bad act evidence to establish intent when the evidence was “minimally
probative” and “cumulative”); State v. Ward, 138 S.W.3d 245, 272 (Tenn. Crim. App.
2003) (agreeing with the trial court that the admission of two prior unexplained deaths of
children in the defendant’s care was unfairly prejudicial where the defendant was indicted
with the first degree premeditated murder of another child in the defendant’s care). Thus,
the trial court abused its discretion by admitting the prior bad act evidence to show intent.
D. Rule 404(b) Exception: Common Scheme or Plan
Although not discussed by either party on appeal, the trial court instructed the jury
that it could consider the prior bad act evidence “if it tends to establish that [D]efendant
engaged in a common scheme or plan for the commission of two or more crimes so related
to each other that proof of one tends to establish the other.” Thus, we will consider whether
the admission of the prior bad act evidence for the purpose of a common scheme or plan
was proper.
“In Tennessee, there are three categories of common scheme or plan evidence: (1)
offenses that reveal a distinctive design or are so similar as to constitute ‘signature’ crimes;
(2) offenses that are part of a larger, continuing plan or conspiracy; and (3) offenses that
are all part of the same criminal transaction.” State v. Moore, 6 S.W.3d 235, 240 (Tenn.
1999). We have already discussed how the prior bad act and the current offense are not so
distinctive as to constitute a “signature crime.” Moreover, there is no evidence in the record
that the two offenses, which occurred four years apart and against two different victims,
were a part of a “larger, continuing plan or conspiracy” or that they were a part of “the
same criminal transaction.” Thus, the trial court abused its discretion in admitting the prior
bad act evidence for this purpose.
E. Rule 404(b): Harmless Error
Because the trial court abused its discretion in admitting the prior bad act evidence,
we must determine whether that error was harmless. The harmless error doctrine
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recognizes that the central purpose of a criminal trial is to decide factual questions of a
defendant’s guilt or innocence, and it promotes the public’s respect for the criminal process
by focusing on the underlying fairness of the trial rather than technicalities or “the virtually
inevitable presence of immaterial error.” State v. Rodriguez, 254 S.W.3d 361, 366 (Tenn.
2008). Improperly admitted evidence is reviewed under a non-constitutional harmless
error analysis. State v. Jeff Carter, No. 2009-02399-CCA-R3-CD, 2010 WL 5343212, at
*13 (Tenn. Crim. App. Dec. 16, 2010) (citing State v. Powers, 101 S.W.3d 383, 397 (Tenn.
2003)). Under this analysis, a defendant must demonstrate “that the error ‘more probably
than not affected the judgment or would result in prejudice to the judicial process.’”
Rodriguez, 254 S.W.3d at 371-72 (quoting Tenn. R. App. P. 36(b)). When assessing the
impact of a non-constitutional error, appellate courts must review the record as a whole,
considering properly admitted evidence of the defendant’s guilt. Id. at 372 (citing
Gilliland, 22 S.W.3d at 274). “The greater the amount of evidence of guilt, the heavier the
burden on the defendant to demonstrate that a non-constitutional error involving a
substantial right more probably than not affected the outcome of the trial.” Id. (citing
Toliver, 117 S.W.3d at 231; State v. Francis, 669 S.W.2d 85, 91 (Tenn. 1984)). Whether
an error was harmless “does not turn upon the existence of sufficient evidence to affirm a
conviction or even a belief that the jury’s verdict is correct.” Id. Instead, appellate courts
must determine what impact the error may have had on the jury’s decision-making. Id.Here, the evidence of Defendant’s guilt was not overwhelming. The State proffered
two expert witnesses: Dr. Zimmerman in forensic pathology and Dr. Crook in pediatrics.
Dr. Zimmerman performed the victim’s autopsy and said that his analysis of the victim’s
blood clotting gave a “rough estimate” that the victim’s injuries occurred between eight
and seventy-two hours prior to the victim’s death. Dr. Crook examined the victim’s
autopsy report and initially testified that the victim’s injuries occurred “minutes” before
the victim’s death. In another portion of testimony, Dr. Crook stated that it was just as
likely that the injuries occurred one hour prior to death as eight hours prior to death. If Dr.
Zimmerman’s “rough estimate” is accurate, then the victim suffered the injuries during his
stay at Centennial or just prior to his admission to Centennial. If Dr. Crook’s estimate is
accurate, then the victim may have suffered the injuries while he was alone with Defendant.
Further, the State significantly relied on the prior bad act evidence at trial by admitting
medical testimony and Defendant’s written statement to police regarding A.H.’s injuries,
as well as drilling down on the comparisons between the two events in both closing and
rebuttal arguments. Because the expert testimony at trial was conflicting as to the estimated
time of death, because the material issue at trial was whether Defendant was alone with the
victim when the injuries occurred and was thus the perpetrator, and because the State
significantly relied on the prior bad act evidence, we conclude that the admission of the
prior bad act evidence more probably than not affected the judgment at trial. Thus, we
reverse the judgments of the trial court on this ground.
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Conclusion
For the foregoing reasons, we reverse the judgments of the trial court and remand
for a new trial consistent with this opinion.
____________________________________
ROBERT L. HOLLOWAY, JR., JUDGE
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