# FILED

September 29, 1997 Cecil W. Crowson September 29, 1997 1 FOR PUBLICATION 2 3 IN THE SUPREME COURT OF TENNESSEE 4 5 AT NASHVILLE 6 7 8 9 STATE OF TENNESSEE, ( 10 ( 11 Plaintiff-Appellee, ( 12 ( 13 ( Williamson Criminal 14 ( 15 v. ( Hon. Henry Denmark Bell 16 ( Judge 17 ( 18 ( Appeal No. 01S01-9602-CC- 00029 19 JAMES DUBOSE, ( 20 ( 21 Defendant-Appellant. ( 22 23 24 For Plaintiff-Appellee : For Defendant-Appellant : 25 26 Charles W. Burson Robert H. Plummer, Jr. 27 Attorney General & Repor ter Franklin 28 Nashville 29 30 Michael E. Moore 31 Solicitor General 32 Nashville 33 34 Michael W. Catalano 35 Associate Solicitor Gener al 36 Nashville 37 38 Amy Tarkington 39 Assistant Attorney Gener al 40 Nashville 41 42 Joseph D. Baugh 43 District Attorney General 44 Franklin 45 O P I N I O N 46 47 JUDGMENT OF COURT OF CRIMINAL 48 APPEALS AND JUDGMENT OF TRIAL 49 COURT AFFIRMED. REID, J. 50 51 This case presents for rev iew the decision of the Cour t of Criminal 52-2-

Appeals affirming the convic tion of James DuBose of first degree murder by 1 aggravated child abus e. The defendant was sentenced to impr isonment for life. 2 Permission to appeal was granted in order to rev iew the trial court’s ruling allowi ng 3 the introduc

tion of evid ence of prior injuries s uffered by the victim. 4 5 I 6 7 The victim was 16-month- old Rufus Jones, Jr., whos e death was 8 caused by the application of s ignificant force, consistent with a blow with a fist to 9 his abdomen, which had deve loped massive internal s carring as the result

of 10 older, undiagnosed injuri es. The victim was pr onounced dead at the hospital 11 emergency room at approx imately 9 p.m. on July 3 , 1993, where he was tak en by 12 his mother, Ann Jones, and the defendant. Jones and the defendant were liv ing 13 together in a mobile home w ith her children: Rufus, th e victim; Nick, ag e 10; and 14 Joey, age 6. The defendant’s son, Jami e, age 4, als o lived with them. 15 16 The conviction is based on c ircumstantial evidence.On the date of 17 the victim’s death, the defendant went to work and Jones and the children spent 18 the morning

with a fri end and her small child. After the defendant returned home 19 from work, he, Jones, and all the children visited in the home of the de fendant’s 20 parents until late afternoon, when they all, except Jamie, returned to the mobile 21 home. T hey remai ned toget her until some tim e later whe n Jones le ft to get pizza 22 and a movie video. When she left, the victim was sitting at the kitchen table 23 eating a hot dog. Accordi ng to Jones, the victi m had appeared to be well in the 24 morning but somewhat “lazy” later in the day. However, there was no evidence 25 that he sustained any injur y during the day. 26 27 Nick testified that after his mother left to get the pizz a and movie, the 28 victim fell asleep at the k itchen table and was carr ied by the defendant to the 29-3-

bedroom. Nick stated that w hile the defendant and the victi m were in the 1 bedroom he heard a noise, whi ch the defendant explained to Nic k was made by 2 some toys falling. 3 4 When Jones returned, the defendant told her that he had put the 5 victim to bed. She went into the bedroom and saw him l ying on a blanket on the 6 floor. She assumed the child w as asleep. Later, the defendant w ent into the 7 bedroom and returned carry ing the victim. He told Jones the child was not 8 breathing. The victim v omited when his mother gav e him mouth to mouth 9 resuscitation; otherwise, he exhibited no sig n of life. 10 11 At the hospital, the defendant stated tha t he found the child pinned 12 between the bed and the wall . His explanation w as that the victim had dropped 13 his bottle behind the bed and had been t rying to retriev e it. The detective who 14 investigated the death v isited the home that night. H e made numerous 15 photographs and measured the dist ance between the bed and the w all. When the 16 detective returned the nex t day, he found under the bed a baby ’s bottle which had 17 not been there the previous ni ght. The detective also no ticed that the bed had 18 been mo ved a few in ches far ther away f rom the wa ll. Lastly, the dete ctive 19 discovered a rolled up blanket which the mother identified as the blanket on which 20 the victim had been lyi ng on the night he died. The bl anket was damp in one spot 21 with what appeared to be blood and mucus. The stain on the blank et was 22 consistent with a sample of blood taken from the victim. 23 24 The medical examiner, Dr. J ulia Goodin, performed the autopsy

. 25 She testified that the victim's abdominal cavity was full of blood, there were 26 contusions on the intestines, and lacerations or tearing on the connective tissue to 27 the small intestines, which likely were caused by a knuckle on the perpetrator’s 28 fist. The injury whi ch caused the tearing probabl y had occurred within 24 hours of 29-4-

death and certainly had occurred within 36 hours of death. Exterior bruise s on the 1 victim corresponded to the internal abdominal injuries. The bruises were 2 consistent with blows to the abdomen with a fist. According to Dr. Goodin, this 3 type of blow typically is administered by an adult, not another child. In Dr. 4 Goodin's opinion, the defendant's ex planation of what happened was inconsistent 5 with the injuries s he observed. She testified that there was no indicatio n that the 6 child had been pinned in any w ay, nor were there s igns of asphyxiation. 7 8 Dr. Goodin also testified tha t there was evidence of other internal 9 injuries in the abdominal ar ea which were at le

ast a week old and could hav e been 10 several months old. She st ated that the old injuries had been caused by 11 significant force and had resul ted in internal scarri ng. Her conclusion w as that the 12 mass of scarring caused by the old injuries prev

ented the soft connective tiss ue 13 from moving freely in the abdominal cavity w hen force was applied, thereby 14 resulting in the tearing which caused the child to bleed to death. In addition, Dr. 15 Goodin testified that on vari ous parts of the body there w ere exterior contusio ns 16 and bruises, some of which w ere as much as a week old. She also found 17 evidence of prior contusions to the back of the scalp area which had resulte d in 18 the development of scar tissue between the scalp and the skul l. The medical 19 examiner did not associate the injuries to the vi ctim’s head with his de ath. 20 21 In addition to the injuries found by the medical examiner, proof was 22 introduced concerning an incident in March 1993 when the victim's fingers were 23 injured while he was with the defendant; the defendant told Jon es that the victim 24 had smashed his fingers in the cabinet door. Because the defendant had t aken 25 the child to his sist er’s hous e, the mo ther did n ot see th e fingers until lat er the next 26 day. Two of the victi m's fingernails were missing and there was pus on the 27 fingers. She immediately took the victim to the emer gency room where he w as 28 treated by Dr. Woodrow W ilson. Dr. Wilson concluded that the injuries were 29-5-

inconsistent with the fingers being accidentally smashed in a cabinet door, 1 although it was possi ble that the victim could have sustained the injur y by placing 2 his fingers in the hinged door of the cabinet and then pulling his fin gers while 3 pushing against the cabi net door. He described the i njury as a “superfici al 4 degloving,” in which the skin is peeled off and there are no fractures. He 5 suspected child abuse and discussed his concerns with the mother. 6 7 Harvey Wood, the mother’s brother-in-law and also the def endant’s 8 uncle, testified that the defendant show ed hostility towar

d the victim. Wood 9 explained that the defendant disli ked the victim’s father, R ufus Jones, Sr. The 10 defendant had told W ood that the victim “looked just like his daddy, sounded like 11 his daddy, cried like his daddy and that he couldn’t stand that little bastard either.” 12 Wood testified tha t on one occasion he had seen the defend ant strike the victim 13 on the head. W ood also state d that the def endant had tri ed to get him to ch ange 14 his testi mony. 15 16 The defendant’s basic defense was that there was not sufficient 17 admissible evidence to pr ove the charge. The defendant initially claimed that the 18 child’s death was acci dental - that it was ca used by his becoming caug ht between 19 the bed and the wall. At tr ial, he insisted that there was no evidence show ing the 20 cause of the fatal injury, that the evidence showed the i njury could have been 21 caused accidentally by the children at play or

intentionally by per

sons other than 22 the defendant. The Court of Criminal Appeals, however, found that the evidence, 23 though circumstantial, was sufficient to support the conviction. The defendant’s 24 application for permission to appeal the sufficiency of the evi dence was not 25 granted. The only issue before this Court is the admis sibility of the evid ence of 26 prior injuries. 27 28 II 291 “‘Relevant evidence’ means evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.” Tenn. R. Evid. 401.

2 “All relevant evidence is admissible except as provided by the Constitution of the United States, the Constitution of Tennessee, these rules, or other rules or laws of general application in the courts of Tennessee. Evidence which is not relevant is not admissible.” Tenn. R. Evid. 402.

-6- 1 The defendant contends that the trial court committed reversible 2 error in allowing the jury to hear evi dence of the prior injuries sustained by the 3 victim. He objects specifically to the testi mony of the mother and of the 4 emergency room physi cian about the injury to the victim’s fingers in March 1993 5 and the testimony of the medical ex aminer about the prior inter nal and external 6 injuries. The State contends that the evidence was admissible to show the cause 7 of death, and also that the injury was caused “knowi ngly, other than by accidental 8 means,” as provided in Tenn. C ode Ann. § 39-15-401(a)(1991). The defendant 9 would invoke Rule 40 4(b) of the Tennessee Rules of Evi dence to exclude the 10 evidence of prior injur ies. He contends that the ev idence was not probativ e of any 11 element of the offense and, further, even if rel evant its probative v alue was 12 outweighed by unfair pr ejudice. 13 14 III 15 16 The first issue to be resolv ed is the standard of review of the trial 17 court’s decision regarding the admissibility of the evidence. The standar d of 18 review where the decision of the trial judge is based on the relevance of the 19 proffered evidence under Rules 40l 1 and 402 2 is abuse of discretion. Nei l P. 20 Cohen et al., Tennessee Law of Evidence § 401.5 at 86-87 (3d ed. 1995); 21 Dockery v. Board of Pr ofessional Responsibility, 937 S.W.2d 863, 866 (Tenn. 22 1996); cf

. State v. Porterfield , 746 S.W.2d 441, 450 (Tenn. ), cert. denied , 486 233 Rule 404(b) provid es as follows: (b) Other Crim

es, Wrongs, or Acts. --

Evidence of

other crimes, wrongs, o

r acts is not admiss

ible to prove

the character o

f a person in o

rder to show a

ction in confor

mity with the character trait. It may , however, be admissible for o ther purposes. The conditions wh

ich must be s

atisfied before

allowing su

ch evidence a

re: (1) The court upon request must hold a hearing outside the jury's presence; (2) The court must determine that a m aterial issue exists other than conduct conforming with a character trait and m ust upon request state on the record the m aterial issue, the ruling, and the reasons for adm itting the evidence; and (3) The court must exclude the eviden ce if its probative value is outweig hed by the danger of unfair prejudice.

4 Rule 404(b) was drafted in response to this Court’s opinion in State v. Parton , 694 S.W.2d 299 (Tenn. 1985). In Parton , “the Court established precise procedures to emphasize that evidence of other crimes should usually be excluded.” Tenn. R. Evid. 404(b) advisory commissions’s comme

nts.

-7- U.S. 1017 (1988). Where the a dmissibility of the proffered evidence must also 1 comply with Rule 404(b) 3 and the trial court has foll owed the procedure mandated 2 by that rule, it appears that the same standard, abuse of discretion, would be 3 applicable. See State v. Brewer , 932 S.W.2d 1, 24 (Tenn. Crim. App. 1996). 4 However, in vi ew of the strict procedur al requirements of Rule 404(b), the decision 5 of the trial court should be afforded no deference unless there has been 6 substantial compliance with the procedural requi rements of the Rule. The 7 procedure for determining admi ssibility of evidenc e of other “crimes, wrongs, or 8 acts” is set forth in the r ule. 4 The court must find on “evidenc e heard outside the 9 jury’s presence” th at the evidence is relev ant to a “material issue” and that the 10 probative value of the ev idence is not “outweig hed by the danger” that the 11 evidence will caus e unfair prejudice. Tenn. R. Ev id. 404(b)(1)(2) & (

3); State v. 12 McCary , 922 S.W.2d 511, 513-14 (Tenn. 1996). If the evidence is admitted, the 13 trial court “must upon re quest state on the record” the material issue to w hich the 14 evidence is relevant and the court’s reasons for a dmitting the evidence. Id . at 15 404(b)(2). The trial court did not comply fully with these procedures. However, 16 where, as in this cas e, there was a hearing

outside the presence of the jury, but 17 the trial court failed to dete rmine and state on the record th e material issue to 18-8-

which the evidence w

as relevant and also failed to find that the probative v alue of 1 the evidence was not outw eighed by the danger of unfair prejudice, the 2 determination of admissibility will be made by the reviewing court on the evidence 3 presented at the jury out he aring. 4 5 IV 6 7 Since in this case the Cour t must apply a different standard o f review 8 if Rule 404(b) is applicab le, the next issue to be c onsidered is whether the 9 admissibility of the ev idence of prior injuries is controlled by Rul es 40l and 402 or 10 whether Rule 404(b) i s also applicable. The admiss ibility of the evidenc e of prior 11 injuries to the victim’s abdominal area, and the ev idence of prior injuries to the 12 victim’s hand and head, must be considered separately. 13 14 In regard to the evidenc e of prior injuries to the victim’s abdominal 15 area, the defendant contends that the medica l examiner’s testimony regarding 16 prior injuries is i rrelevant unless the i njuries can be attributed to the defendant. 17 That interpretation is unduly restrictive of the meaning of relevance. Rule 404(b) 18 applies to “evidence of other crimes, wrongs or

acts” of the person on trial , and 19 excludes evidence of such acts only when offered for the pur pose of proving 20 character or trait of char acter. State v. Nichols , 877 S.W.2d 722, 732 (Tenn. 21 1994), cert. denied , 513 U.S. 1114 (1995). Evidence of crimes, wrongs or acts, if 22 relevant, are not excluded by Rule 404(b) if they were committed by a per son 23 other than the accused and are onl y conditionally ex

cluded if committed by the 24 accused. Since the evidenc e admitted did not show the i dentity of the person who 25 caused the prior abdominal injuries sustained by the victim, it was not inadmissible 26 under Rule 404(b) as reflecting upon the character of the defendant. 27 28 Consequently, the admiss ibility of the evidenc e is dependent upon 29-9-

its relevance under rules 401 and 402. The relevance of prof fered evidence is 1 determined by the issues presented for resolution in the trial, which, in turn, are 2 determined by the elements of the offense char ged and the defense asserted by 3 the accused. As stated in the A dvisory Commissio n Comment to Rule 401, “[t]o 4 be relevant, evidence must tend to prove a material issue.” 5 6 The defendant was charged wi th and convicted of first deg ree 7 murder b

y aggr avated child abuse, which w as define

d as: “A reckle ss kill ing of a 8 child less than thirteen ( 13) years of age, if the chi ld's death results from 9 aggravated child abus e, as defined by § 39-15-402, committed by the defendant 10 against the child.” Tenn. C ode Ann. § 39-13-202(a)(4) (Supp. 1993) (current 11 version at § 39-13-202(a)(2) (Supp. 1996)). The offense of aggravated child 12 abuse is defined in the statute as fol lows: “A person is guilty of the offense of 13 aggravated child abus e who commits the offense of child abuse as defined in § 14 39-15-401 and: (1) The act of abuse r esults in serious bodil

y injury to the chi ld; or 15 (2) A deadly weapon i s used to accomplish the act of abus e. ...” Tenn. Code Ann. 16 § 39-15-402 (a)(1991). The offense of chi ld abuse was defined as follow s: “Any 17 person who knowing ly, other than by accidental means, treats a child under 18 eighteen (18) years o f age in such a manner as to infli ct injury or negl ects such a 19 child so as to adversely affect the child's health and welfare is guilty of a Class A 20 misdemeanor.” Tenn. Code Ann. § 39-15- 401 (a)(1991)(amended 21 1994)(emphasis added). These statutes required, for convi ction of first degree 22 murder by aggrav ated child abuse, proof that the defendant k nowingly, other than 23 by accidental means, inflicted upon the victim serious bodily injury that caused his 24 death. 25 26 Here, the evidence of prior injuries to the abdominal ar ea was 27 admissible to show causation. According to Dr. Goodin, the scarring of the 28 abdominal area caused by the pr ior injuries created a condition which allow ed the 295 “ Although rele vant, evidence m

ay be exclud

ed if its probative

value is substantia

lly outweighed by the danger of unfair pre judice, confusion of the issues, or misleading the jury, or by considerations of undue delay, wa ste of time, or needless presentation of cumulative evidence.” Tenn. R. Evid. 403.

-10- later blows to cause the injuries which resulted in the victim’s death. This 1 evidence was relev ant to causation regardles s of the identity of the perpetrat or. 2 The external bruises to the abdomen were consistent w ith the internal injuri es and 3 were in fact evidence of the same injuries. Thus the pri or injuries to the 4 abdominal area were admissi ble because they directl y related to the cause of 5 death and also because they tended to prove that the injuri es were caused by 6 someone intentionally and not a ccidentally. 7 8 The next issue is wheth er the probative val ue of the evidence of the 9 abdominal injuries was outweighed by the danger of unfair prejudice. Since, as 10 stated above, Rule 404(b) is not applicable to this evidence, its admissibility must 11 be considered under Rule 403, Tennes see Rules of Evidence. 5 Rule 403 permits 12 a court to exclude relevant evidence “if its probative value is substantially 13 outweighed by the danger of unfair prejudice.” (Emphas is added.) The Court has 14 stated that unfair prejudice i s “[a]n undue tendency to suggest decision on an 15 improper basis, commonly, though not necessarily, an emotional one. ” State v. 16 Banks , 564 S.W.2d 947, 951 (Tenn. 1978); see also State v. McCary , 922 S.W.2d 17 at 515. The medical examiner’s testimony regarding prior injuries to the victim 18 was not particularly graphic or emotional. R ather, the testimony simply recounted 19 in a clinical manner the location of various bruising and scarring on the victim’s 20 body. There was no supposition as to who caused the prior injuries. The Court 21 concludes that the probative value of this evidence was not substantially 22 outweighed by the danger of unfair prejudice as required for exclusion under Rule 23 403, and, therefore, that the trial judge did not abuse his dis cretion in allowing

its 24 admission. 25 266 Intent and absence of accident are closely related factual issues. Tennessee Law of Evidence , §§ 404.9, 404.10.

-11-

The remaining issues concer n the admissibility of the testimony 1 about the injury to the v ictim’s fingers in 1993 an d the testimony regardi ng injuries 2 to his head. Because, on the ev idence, the defendant could be identified as the 3 person responsible for these i njuries, admissibilit y of the evidence is governed by 4 Rule 404(b). First, the evidence that the defendant was responsible for the hand 5 and head injuries must be clear and convincing as re

quired under Rule 404(b) 6 analysis. See State v. McCary , 922 S.W.2d at 514; State v. Parton , 694 S.W.2d 7 at 303. Then, two issues must be determined: whether ther e was a material 8 issue, other than conduct conformi ng with a character trait, to which ev idence of 9 the injur y to the vict im’s fin gers was rele vant; and , if so, whe ther the probative 10 value of the evidence outw eighed the danger of unfair prej udice. Id . The test for 11 relevance under Rule 401, that the evidence tends to prove a material issue, is 12 the same under Rule 404(b). H owever, the test in R ule 404(b) for balancing 13 probative value agai nst prejudicial effect differs from that established in Rule 403. 14 To be excluded under Rule 403, the danger of unf air prejudice must “substantially 15 outweigh” the probative value. Under Rule 404(b), however, the danger of unfair 16 prejudice must simply “ outweigh” the probativ

e value. The restricti

ve approach of 17 Rule 404(b) recognizes that evidence of other crimes, wrongs or acts carries a 18 significant danger of unfair pr ejudice. Tennessee Law of Evidence , § 404.7 at 19 172. 20 21 The evidence of the injury t o the victim’s hand in 1993 and that he 22 was struck on the head by the defendant was relevant t o two closely rel ated 23 material issues: intent and absence of accident. The statutes defini ng the 24 offense require proof that the act of abuse was committed “knowi ngly” and not by 25 “accidental means.”6 Since the defendant claimed the inj ury was accidental and, 26 apparen tly in the a lternati ve, if the injury was in flicted intentio nally it cou ld have 27-12-

been done by others, proof that he w as responsible for the prior injuries was 1 highly probative of both his intent to harm the child and also that the fa tal injury 2 was not accidental. 3 4 The evidence, though probativ e of intent and lack of accident, 5 undoubtedly was prejudicial. But the issue is whether the evidence was unfairly 6 prejudicial. The evidenc e was highly re levant to material iss ues, it did not 7 introduce any extraneous issues and it did not cause the jury to decide the case 8 on an improper basis. Cf

. Woodson v. Porter Brown Limestone Co ., 916 S.W.2d 9 896, 907-908 (Tenn. 1996). On this record, the prejudice w as not unfair. 10 Therefore, the Court concludes that the probative value of the evidence was not 11 outweighed by the danger of unfair prejudice. Accor dingly, the evidenc

e was 12 properly admitted. 13 14 V 15 16 One additional matter should be mentioned. Where the evidence of 17 other crimes, wrongs, and acts may reflect upon the character of the accused, the 18 procedure set forth in Rule 404(b) should be followed, even though the evidence 19 is offered to prove a material fact not necessarily rel ated directly to the accused. 20 If, after hearing the evidence , the trial court finds that the evidence does not 21 implicate the accused, the weighing of probative value against unfair prejudice will 22 be made pursuant to Rule 403. If the co urt finds that the evidence r eflects upon 23 the character of the accused, the w eighing will be made pursuant to Rule 404(b). 24 25 VI 26 27 The judgment of the Court of Criminal Appeals affirming the 28 defendant's conviction and senten ce is affirmed. 29-13- Costs are taxed agains t the defendant. 1 2

__________________________ 3 Reid, J. 4 5 Concur: 6 7 Anderson, C.J., Drowo ta, and 8 Holder, JJ. 9 10 Dissenting Opinion: 11 12 Birch, J. 13