### IN THE SUPREME COURT OF TENNESSEE AT NASHVILLE February 8, 2

001 Session

STATE OF TENNESSEE v. ROBERT L. MALLARD

Appeal by Perm

ission from the Cour

t of Criminal Appeal

s Circuit Court for Rutherford County No. M-46579 Hon. J.S. Daniel, Judge

No. M-1999-00003-SC-R11-CD - Filed March 22, 2001

In this appeal, we address whether Tenne ssee Code Annotated section 39-17-424 (1997) requires admission into evidence of a defendant’s prior convictions relating to controlled substances, even when Tennessee Rule of Evidence 404(b) would otherwise rend er s uch evidence inadmissible. During the appellant’s trial in the Rutherford C ou nty Circuit Court for possession of drug paraphernalia, the State admitted e vidence of the a

ppellant’s prior c

onvictions for posses sion of crack cocaine and drug paraphernalia under section 39-17-424 to show that the object possessed was classifiable

as drug paraphernalia. Upon his conviction, the appe llan t appealed to the Court of Criminal Appeals, which a ffirmed his

conviction and he

ld that the statute

required admission of the prior convic tions notwithstanding any otherwise applicable rule of evidence. We gr anted the appellant’s application for permission to appeal, and we hold that the legislature did not intend for section 39-17-424 to oper ate without reg

ard to the Rules o

f Evid ence. We also hold that the evidence of

the appellant’s prior convictions was improperly admitted under Rule 404(b), and that this error affirmatively

appears to

have affected the outcome of the trial on its merits. We therefore

reverse the Court of Criminal Appeals and remand this case to the Rutherford County

Circuit Court for a new trial.

Tenn. R. App. P. 11 Application for Permission to Appeal; Judgment of the Court of

Criminal Appeals Reversed; Case Remanded for a New Trial

W ILLI AM M. B ARKER , J., delivered the opinion of the court, in which E. R ILEY A NDERSON , C.J., and F RANK F. D ROWOTA , III, A DOLPHO A. B IRCH , J R ., and J ANICE M. H OLDER , JJ., joined.

Gerald L. Melton, District Public Defender; Brion J. Payne, Assistant Public Defe nder, fo r the appellant, Robert L. Mallard.

Paul G. Summ ers, Attorney General and Rep

orter; Michael E. Moore, Solicitor G eneral; J. Ross Dyer, Assistant Attorney Gener al, Nashville, Tennessee, for the appellee, State of Tennessee.1 According to Officer Prestininizi’s description of the item given at trial, it was a “small, a pproximately t

hree
to four inch,

straw-l ike pipe.” The item a lso had “a filter an d Brillo p ad behind that filter,” which was fur ther evidence to the offi

cer that t he object was drug paraphe rnalia.

2 In denying the a ppellant’s mo tion again in a he aring on his m otion for a ne w trial, the tria l co urt stated its belief that s ection 39- 17-424 is “an aberrati on from 404(b) and Partonand the [pr ogeny] that set[ ] forth the Tennessee Rules of Eviden ce, Bunch . But it is the legislature’ s prerogative to change the common law. And the evidentiary rules

are a codifi

cation of the common law. And th ey’ve done

so in th is iss ue in th e proof of some item,whether it is or is not drug paraphernalia.”

-2- OPINION

BACKGROUND

Du ring the ev ening of July 27, 1998, two officers with the narcotics division of the RutherfordCounty Sherif f’s Department w

ere conducting

surveilla nce o f a house suspected of harboring drug activity. At about 9:00 p. m. , the officers observed the appellant, Robert Mallard, drive up to the house and go inside. The appellant returned to his car a few minutes later, and the officers decid

ed to pursue him as h

e left the house. A

fter following t

he appellant for

about a mile down the road, the officers stopped him for a traffic violation.

At some poi nt dur ing the stop, one of the officers requested and obtained the appellant’s consent to search the ca

r. While searching through the center console, the offi

cer discovered

a small glass stem that appear

ed to him to be a pipe

used tosmoke crack cocaine. 1 According to the officer’s testimonyat trial, the appellant admitted that the pipe was his, that hehad a drug problem, and that he had smoked crack cocaine the previous day. The off icer then issued the appellant a misdemeanor citation for posse

ssion of drug par

aphernalia and

released him.

On November 4, 1998, the Rutherford County Grand Jury indicted the a ppellant on one count of unlawful possessio

n of drug parap

hernalia with inte

nt t o use in violation of Tennessee Code Annotatedsection 39-17-425(a) (1997). Prior to trial, the State served notice of its int en tion to introduce as evidencethe appellant’s two prior convictions for possession of drug paraphernalia and his prior conviction for possession of crack cocaine. The purpose of introducing these convictions
, according to the State, was to determine “whether the pipe found in the defendant’s possession on Jul y 27, 1998[,] constitutes drug paraphernalia.” The appellant then filed a motion in limine t o exclude the evidenceof the pri or convictions under Rule of Evidence 404(b), but the trial court deniedthe motion, finding that the prior convictions were deemed to be statutorily relevant pursuant to Tennessee Cod e Annotated section 39-17-424(2) (1997). 2 The court also declined to hold an evidentiary hearing as otherwise required by Rule 404(b).

At trial, the State calledOfficer Robert Prestininizi, one of the arresting officers, to testify

as to the stop and as to his finding of the glass pipe. Although the original pipe was lost prior to trial, Officer Prestininizi described the item and drew a picture of it for the jury. The officer also told the jury that the appellant admitted possession of the pipe an d that h e had smoked crack cocaine as-3-

recently as the

day befor

e the stop. Pursuan

t to its prior notice, the State also introduced evidence of the appellant’s prior convictions for possession of cocaine and o f drug pa raphernalia. After receiv ing the judgments of conviction into evidence, the trial court gave the jury the fol lowin g instruction:

All right. I might at this point instruct the jury, this is a little bit unusual, but you’re not to consider these convictions as evidence of gu ilt of the offense of which this Defendant is now on trial. This goes to credibility.

But in thi s parti cular case, because of a statutory require ment under 39-17-4 24, you can consider this testimony and this evidence her e and thes e convictions as to determine knowledge of the drug paraphernalia, the subject matter of the particular charge. That’s one of the factors that can be considered under that statutory requirement. And that’s the reason it’s being allowed . . . .
Testifying

on his own behalf, the appellant denied telling the officer that thepipe belonged to him. Alth ough he admitted giving consent to the officers to search the car, the appellant testified that he had borrowed the car from someone else and

that the crack pipe belonged to the actual owner. He further

denied having seen the pipe prior to its discovery by Officer Pre stininizi or that he was

even aware of its existence. Nevertheless, on February 4, 1999, the jury found th

e appellant guil

ty of the crime as charged, and the trial court sentenced him to serve eleven months, twenty-nine days in the county workhouse. The court also fined the appellant $750.00.
On his appeal to the Court of Criminal Ap peals, the appellant ar

gued, among ot

her things, that the trial court erred

in not holding an evidentiary hearing pursuant to Rule of Evidence 404(b) to determine the ad

missibility of h

is prior conviction

s. Although the in

termed iate court found a conflict between the prov

isions of section 39-17-424 and Rule 404(b), it permitted the evidence of the prior convictions, finding that theRules of Evidence were governed by the statute. The Court of Criminal Appeals f

irst reasoned tha

t because section 39-17-424 was enacted four years after the first articulation of Rule 404(b) in State v. Parton , 694 S.W.2d 299 (Tenn. 1985), the statute prevailed over the rule of

evidence. The court also reasoned that because section 39-17-424 applies to specific eviden

tiary admiss

ions in specific prosec

utions, this statute

governed the more general prohibition on prior acts as found in Rule 404(b). Concluding that the trial co urt did not err in admi tting evide nce of the appellant’s prior offenses, the Court of Criminal Appeals affirmed the appellant’s conviction and sentence.

The appellant then requested permission to appeal from this Court, which we granted on the issue of whether Tennessee Code Annotated section 39-17-424 requires admission into evidence of

a defendant’s prior convictions relating to controlled substances, even when Tennessee Rule of Evidence 404(b) would otherwise render such evidence inadmissible. For the reasons given herein,

we conclude that the

General Assembl

y did not inten

d for section 3 9-17-424 to require a court to admit evidence of prior convictions without judicial consideration of any otherwise applicable rules of evidence, as such a

construction would call into question the validity of the statute. We also hold3 Twenty-four jurisdictions, including Tennes see, list t he defendant’s

previous convict

ions for drug of

fenses

as one such fac tor to consid er. See Ala. Code § 13A-12-260 (1994); Ariz. Rev. Stat. Ann. § 13-3415 (West 1989); Ark. Code Ann. § 5-6 4-101(v ) (Michie 1993); C al. Health & Safety Code § 11364 .7 (West Supp. 2000); Haw. Rev. Stat. Ann. § 329-1 (M ichie 199 3); Idaho Code § 37-270 1(n) (199 4); Kan. S tat. Ann. § 65-415 1 (1992 ); Ky. Rev. S tat. Ann. § 218A.510 (Michie 1995); Me. Rev. Stat . Ann. t it. 17- A, § 1111-A(3) (West 1 983 & Supp. 20 00); M d. Ann. Co de art. 27, § 287A (1997); Mis s. Code Ann. § 41-29-1 05(v) (1993 ); Mo. Ann. Stat. § 19 5.010(17) (W est 1996); Mont. Code Ann. § 45-10-102 (1996) ; Neb. Rev. Stat. An n. § 28-440(Michie 1 995); N ev. Rev. Sta t. Ann. § 453.556 (Michie 1996 ); N.H

. Rev. St

at. An n. § 318-B :2(IV) (1 995); N .M. Stat. An n. § 30-31 -2(V)(1 3) (Mic hie 1989 ); N.C. G en. Stat. § 90-113.21(b) (1993); N.D. Ce nt. Code § 12.1-31 .1-02 (19 85); Pa. S tat. Ann. tit. 35, § 780-102(b) (W est 1993); R.I. Gen. Laws § 21-28.5-1 ( 1989); Tenn. Code An n § 39-17-424 (1997) ; Utah CodeAnn. § 58-37a- 4 (1996); Wash. Re

v. Code Ann. § 69.50.102(b) (W est 1994).

Twenty jurisdictions do not include a defendant’s prior crimes among the “relevant” co nsiderations

. See Colo. Rev. Stat. Ann. § 18-18-427 (West 1997); Conn. Gen. Stat . Ann. § 21a-270 (West 1994); Del . Code Ann. t it. 16, § 4775 (1995); D.C. Code Ann. § 33-602 (1993); Fla. Stat. Ann. § 893.146 (Supp. 2000); Ga. Code Ann. § 16-13-32.1( c) (Supp. 2000); 720 Ill. Comp. Stat. Ann. § 600/3.5 (West 1993); La. Rev. Stat. Ann. § 40:1032 (West 1992); Mass. Gen. Laws Ann. ch. 94C, § 1 (W est 1984 & Supp. 20 00); N.J. Stat . Ann. § 2C: 36-1 (West 1995); Ohio Rev. Code Ann . § 2925.14 (Banks-B aldwin 1996); O kla. Stat. Ann. tit. 63 , § 2-101 .1 (West 1997) ; Or. Re v. Sta t. § 475. 525 (1995);

S.C. Code Ann. § 44-53-391(b) (Law Co-op. Supp. 2000); S. D. Codified Laws Ann. § 22-42A-2 (Michie 1988); Tex. H ealth & Sa fety Code Ann. § 481.183 ( West 1992); V.I.

Code Ann. tit.19, § 593(13)(M) (1995) ; Vt. St at. Ann.tit.18, § 4475 (Supp. 2000) ; Va. Cod e Ann. § 1 8.2-265 .2 (Mich ie 1996 ); Wis. Stat. A nn. § 161 .572 (W est 1997 ).

-4- that the evidence of the

appellant’s prior convictions was inadmissible in this case under Rule 404(b) andthat this error affir

matively appears to have affected the outcome of this trial. The appellant’s conviction is reversed, his sentence is va cated, and this ca

se is remanded to t

he Rutherford Cou

nty Circuit Court for a

new trial.

POSSIBLE CONFLICT BETWEEN TENNESSEE CODE ANNOTATED SECTION 39-17-424 A

ND TENNESSEE RULE OF EV IDENCE 404(B)

In August 1979, the United States DrugEnforcement Agency drafted a proposed amendment to the Uniform Controll ed Substan ces Act to re strict the possessio n of drug paraphernal ia. See Model Drug Parapherna lia Act Preamble (1979). Previous attempts by states to enact such legislation had been routinely defeated in the courts on vaguene ss or overbreadth grounds, and several states issued calls concer ning the need fo r an effective

piece of legisl

ation that would withstand these constitutional challenges. See id. preamble. To ac complish this goal, the drafters of the Model Drug Parapher nalia Act tried to

restrict t he scope of u nlawful con duct by includ ing a specific intent requiremen t an d by listing certain factors for courts to consider when determining whether an object is drug paraphernalia. See id. arts. I, II. At least forty -four jurisdictions have adoptedvariations of the

Model Act to

date, and all of th

esestatutes contain, in one form or another, the Act’s list of factors for trial courts t o use in determinin

g whether a pa

rticular object i

s classifiable as drug paraphernalia. 3

In 1984, the Tenness

ee General Ass

embly enacted its o wn drug paraphernalia law based upon the Model Drug Paraphernalia Act with s light alterations. See 1984 Tenn. Pub. Acts ch. 1005 (codified in scattered sections of title 39, part 17). Perhaps the most significant of these alterations for purposes of this case is the l anguage cur

rently appe

aring in Tennessee Code Annotated section4 The full text of the statute, which has not been amen ded since its original enactment, reads as fo llows: In determining whether a particular object i s drug paraphernalia as defined by § 39-17-402, the court

or other authority making such a determinatio n shall in addition to all other logicall y relevant factors consider the following:

(1) Statements by the owner or anyone in control of the object concerni

ng its use ; (2) Prior convi

ctions, if any , of th

e owner or of

anyone i

n control of the obj ect for violation of any state or federal law relating to controlled sub stances; (3) The existe nce of any res idue of con trolled substa nces on the o bject; (4) Instructi

ons, oral or wri

tten, provi

ded with the object

concerning it

s use; (5) Descriptive mat erials accompanyi

ng the object whi

ch explain or depict

its use; (6) The manner in which t he object is dis

played for sal

e; (7) The existence and scope of legitimate uses for the object i n the community; and (8) Expert testi

mony concerning i

ts use. Tenn. C ode Ann . § 39-17 -424 (19 97).

The Tennessee Drug Paraphern alia Act include s only ei

ght of the original fourteen “r elevant” considerations listed by the Model Act. Among those considerations omitted from the Tennessee statute are: (1) The proximity of the object, in ti

me and space,

to a dire ct viol ation of this Act ; (2) The proximity of t he object to contr

olled su bstances ; (3) Direct or circumstant

ial evidence of

the intent

of an owner, or of

anyone in contr

ol of the object

, to deliver

it to persons whom he knows,

or should reasonably

know, intend t

o use the object

to facili tate a viol

ation of thi

s Act; the i

nnocence of an owner, o r of anyone in control of the object, as to a direct violation of this Act s

hall not prevent a finding t hat the object is inten

ded for use, or desi

gned for use as Drug par aphernalia;(4) National a nd local ad vertising conc erning its
use; (5) Whether the owne r, or anyone in contr ol of the object, is a legi timate supplier of like or rel ated items to the

commu nity, such as a licensed distributor or dealer of tobacco products; and (6) Direct or circumstantial evidence of the ratio of sales o f the object(s ) to the total sales o f the business en terprise. See Mod el Drug P araphern alia Act art. I.

5 Indeed,

some federal appellate courts have recognized that t his comment is evidence of the drafters’ intent
not to preempt any otherwise applicabl e rules of evidence. See Levas v. Vill age of Antioch , 684 F.2d 446, 454 (7th Cir. 1982) (“There is a non-exhaustive lis t of factors that ‘ a court or other authority should consider.’ Some are obviously highly probative . . . . Others can b e proba tive, provided their possi ble prejudicial

impact is adequately wei ghed under applicable evidenti

ary rules : e.g. , (b) prior co nvictions of the person wh o owns or controls an object under federal or state drug laws . . . .”) (em phasis added) ; Record Revoluti on No. 6, Inc. v . Cit

y of Par ma , 638 F.2d 916, 933 (6th Cir. 1980), vacated and rev ersed on othe r grounds , 709 F.2d 534 (6th Cir. 1983) (“The draf ters of th e Model Act set forth this list to minimize the risk of arbitrary and discriminato ry enforcem ent. They did not i ntend the li st to s uper[s]ede any rules of evid ence or to interfere with the factfindin g of the trier o f fact. ”) (emph asis added ).

-5- 39-17-424, which contains the lis t of factors t

hat trial courts in

this state “shall”

consider to determine whether a particular object is drug paraphernalia. 4 The seemingly manda tory lan guage of t his section is a deviation from the Model Act, which states only that a trial court “s hould ” consider the enumerated factors. See Model Drug Para phernalia Act a

rt. I. While the

comments to the Model Act sugges t that “ [t]he listing of these factors in the Model Act is not intended to be pere mpt ory” and that “a court or other authority is not obligated to hear evidence on, or to consider, every factor listed,” see Mod el Drug Paraph ernalia Act comm

ents to art. I,

the parties in this c

ase
are in dispute as to wheth

er our General

Assembly

intended a different interpretation with its use of the mandatory language in the Tennessee le gislation. 5 The issues in this ca se, th erefore, are (1) whether section 39-17-424, with its mandatory language, confl icts with the provisions of the TennesseeRules of Evidence, and (2) if so, whether the General Assembly intended that the statute be given effect notwithstanding any conflicting rule of evidence.6 Tennesse e Rule of E vidence 4 04(b) p rovides that: Evidence of other

crimes, wron gs, or acts is not a dmissible to prove the c haracter of a person in order
to show action in conform ity with the character trait.It may, however , be admissibl

e for other purposes. The conditi

ons which must be s atisfi ed before allowi

ng such evidence ar

e: (1) The court upon request mus t hold a hearin

g outside the jury’s pres ence; (2) The court must det ermine that a

material i ssue exist

s other than

co nduc t conforming with a charac ter trait and mu st upon request state on the record the material issue, t

he ruling, and the reasons for admitt ing the evidence; and (3) The court must exclude the evidence if its probati ve value is out

weighed by the danger of u

nfair prejudi

ce.
-6- Both lower courts agreed that section 39-17-424 appear s to directly conflict with Rule of Evidence 404(b). This Rule provides generally that “[e]vidence o

f other crimes, w

rongs, or acts is not a dmissible to prove the character of a person in order to show action in conformity wi th th e character trait,” and it sets forth specific procedures to deter mine when such eviden

ce is properly admissible. 6 The strict interpretation of thestatute givenby the lower courts is not unreasonable, as

a plain reading of the

statute appears to mandate consideration of prior convictions, albeit for a limited purpose, without regard to judicial determinations of relevancy or of

the need to balance the probative value of the evidenc e with its danger of unfair prejudice as required by Rule 404(b). Indeed, in its brief befor

e this Court, the Stat

e argues that the

statute, with its

mandatory language, is properly construed to require admission of such e v idence in all circ umstances. Neve

rtheless, despite this apparent conflict between section 39-17-424 and Rule 404(b), we do not believe that the legislatureintended for the c ourts to str

ictly constr

ue this statute to operate without regard to the Rules of Evidence.

In con str uin g any s tat ute , ou r “es sen tia l du ty” is “‘to ascertain and carry out the legislature’s int ent without unduly restricting or expanding a statute’s coverage beyond its intended scope.’ ” Lavin v. Jordon , 16 S.W.3d 362, 365 (Tenn. 2000) (quo ting Premium Fin. Corp. o f Am. v. Crump Ins. Servs. of Memphis, Inc. , 978 S.W.2d 91, 93 (Tenn. 1998)). When the language of a statute is clear and unambiguous,

“legislative intent is to be ascertained from the plain and ordinary meaning of the statutory language used.” Gragg v. Gragg , 12 S.W.3d 412, 415 (Tenn. 2000). However, when this court finds that (1 ) a statute can le gitimately be construed in va

rious ways,

and (2) one of those constructions presents a consti tutional conflict,

then “[i]t is our duty to adopt a construction which will sustain the statute and avoi d [that] constitutional conflict, if its recitations permit such a construction.” Marion County Bd. of Comm’rs v. Marion County Election Comm’n , 594 S.W.2d 681, 684-85 (Tenn. 198

0). In no case

, th ough, is the judiciary empowered to substitute its own policy judgments for

those of the General Assembly or to adopt a construction that is clearly contrary to the int ent of t he G ener al A sse mbl y. See, e.g.
, Griffin v. Shelter Mut. Ins. Co. , 18 S.W.3d 195, 201 (Tenn. 2000).

The authority of

the General Asse

mbly to enac

t rules of evidenc

e in many cir

cumstances is notquestioned by

this Court. Its

power in this reg

ard, however, is

not unlimited, and a

ny exercise of that powe r by the leg islature must inevitably yield when it seeks to govern the practice and procedureof the courts. Only the Supreme Court has the inherent power to prom ulgate rules-7-

governingthe practiceandprocedure of the courts of this state, see, e.g. , State v. Reid , 981 S.W.2d 166, 170 (Tenn. 1998) (“It is well settled that Tennessee courts have inherent power to make and enforcereasonable rule

s of procedure. ”); see also Tenn. Code Ann. §§ 16-3-401, -402 (1994), and this inherent power “exists by vi rtue of the establishment of a Court and not by largess of the legislature,” Haynes v. McKenzie Mem’l Hosp. , 667 S.W.2d 497, 498 (Tenn. C t. App . 1984). Furthermore, because the power to control the practice and procedure of th

e courtsis inherent in the judiciary and necessary “to engage in the complet e perfo rmance of the judicial function,” cf. Anderson County Quarterly Court v. Judges of the 28th Judicial Cir. , 579 S.W.2d 875, 877 (Tenn. Ct. App. 1978), this power cannot be constitutionally exercised by any other branch

of government,

see Tenn. Const. art. II, § 2 (“No person or persons b elonging to one

of these departm

ents shall exercise any of the powers properly belonging to either of t he others, except i n the cases here

in directed or permitted.”). In this area, “[t]he court is supreme in fact

as well as in name.” See Barger v. Brock , 535 S.W.2d 337, 341 (Tenn. 1976).
Despite the clear expressionof the separationof powers doctrine in Article II and elsewhe re, however, “it is impossible to pr eserve perfectly the ‘theoretical lines of demar cation between the executive, legislative and judicial branches of government.’ I

ndeed there is, b

y necessity

, a certain amount of overlap because the three branches of government are inter dependent.” Petition of Burson , 909 S.W.2d 768, 774 (Tenn. 199 5). In recognition of this important principle, we have frequently

acknowledged

the broad power o

f the General As s emb ly to establish rules of evidence in furtherance of its ability to enact substantive law. See Daugherty v. State
, 393 S.W.2d 739, 743 (Tenn. 1965). But as the General Assembly ca

n constitutionally

exercise only the legislative power of the state, its broa

d ability to enact rules fo

r use in the courts

must necessarily

be confined to those
areas that are appropriate to t he exercise of that p

ower. Although a

ny discussion

of the precise contours of this legislative powe r is not appropria

te in this case, it is

sufficient to

acknowledge that such power exists and that it is necessarily limited by the very nature of the power itself.
Notwithstanding the constitutional limits of legislati ve power in this

regard, the c

ourts of this state have, from time to t

ime, consented to t

he application of

procedural or e

videntia ryrules promulgated

by the leg islature. Ind

eed, such occas

ional acquiesce

nce can be expec

ted in the natural

course of events, as this practice is somet imes necessary

to foster a worka

ble model of gove

rnment. When legislative ena

ctments (1) are r

easonable and w

orkable within

the framework already adopted by the judiciary, and (2) work to supplement the rules already promulgated by

the Supreme Court, then considerations of comity amongst the coequal branches of gover nment counsel that

the courts notturn a blind eye. See Newton v. Cox , 878 S.W.2d 105, 112 (Tenn. 1994) (upholding legislative regulationof attorneys when the regulation (1) did not “directly conflict with the Supreme Court’s authority,” and (2) was merely “designed to

declare” public policy). This Court has long held the view that comity and cooperation among the branc hes of go vernment are beneficial to all, and consist ent

with constitutional principles, such practices are desired and ought to be nurtured an d maintained. While it is sometimes difficult to practically ascertain where Article II , section 2 draws7 One recent example of deference to considerations of inter-branch comity in this regard is illust rated by our decision in State v. Scott , 33 S.W.3d 746, 75 9-60 (Tenn. 2000). In Scott , we gave eff ect to a stat

ute which pres

umed that DNA evidence generally pro vides for a re liable metho d of prov ing identification

. See Tenn. C ode Ann . § 24-7-117. Although the st

atute r emoved the j udicial

determin

ation of reliabil ity other wise required f

or scienti fic or novel ev

idence,

we essentially held tha t the statute was a re asonable and work able add ition to the Rules of Evidence,in part, because (1) the statute w as otherwise subject to al l of the appli

cable Rules of Evi

dence; (2) the s

tatute permi

tted the def

en dant to introduceevidence that the particular tests at issue were not reliable methods of i dentification; and (3) the s tatute in no way prevented the defendant from questioning the State’ s expert as to the trustworthiness o r reliability of any ana lysis of those tests. Given these limitations, Te nnessee C ode Ann otated sectio n 24-7-11 7, while certain ly an atte mpt to cont

rol the practice and proced ure of the co urts, represen ted a reaso nable and workable p rocedure within our existing rules, and as such, con siderations o f inter-branch c omity coun seled that we d efer to the legislatu re’s desire in this re gard.

-8- the line, the distinction may be simply stated as that between coopera tion and coercion. See Phoenix Newspapers, Inc. v. Superior Court , 882 P.2d 1285, 1290 (Ariz. Ct. App. 1993). 7

It must be emphasi zed, however, that the consent of the courts to legislative regulation of inherent judicial authority

is purely out of considerations of inter-branch comity and is not required by any princip

le of free gover

nment. To hold other

wise would be to

irreparably damage the division of governmental power so essential to the proper maintenance of our constitutional republic. As the Court of Appeals has stated,

In deference to se

paration of powe

rs, judges w

ill lean ov er backward to a void encroaching on the legislative branch’s (power) . . . .

. . . . However, the separation of powers doctrine, pr ope rly understood, imposes

on the jud ici al b ranc h no t me rel y a Negativeduty Not to interfere with the executive

or legislati ve branches, but a Positive responsibility to perform its own job effi cie ntl y. This P ositive as pect of separat ion of powers impos

es on courts affirmative obligations to ass ert and fully

exercise their powers, to o

perate efficie

ntly by modern standards, to protect their independent status, and to fend off legislative or executive attempts to encroach upon judicial [prerogatives].

Anderson County Quarterly Court , 579 S.W.2d at 878 (c

itations omitted) (o

mission and first alteration in original). Other courts have also recognized the important obligation placed upon the judiciary to prevent the needless erosion of its power. As the Supreme Court of Nebraska has acknowledged,
Throughout

the judicial history of the present system the cour ts ha ve scrupulously respected the prerogatives of the legislative and executive departments and extended t o them the comity due to governmental divisions of equal rank, but courtesy does notextend to the surrendering of judicial power. It is an imperati ve duty of the judicial department of

government to protect its jurisdiction at the boundaries of power fixed by the Constitution.8 Tennessee Rul e of Evidence 401 defines“relevant evidence” as being “evidence having any t endency to make the existence o f any fact that is of con sequence to the dete rminati on of the action more pr

obable or less probable than it would be without the evid ence.” Ru le 402 p rovides that “[ a]ll relevant evidence i s admissi ble except

as provide

d by
t he Constitut

ion of the Unit

ed States, t

he Constitut

ion of Tennessee, t

hese rules,

or other rules

or laws of gener

al application in the courts of T ennessee. E vidence w hich is not releva nt is not admissib le.”

-9- Shep herd v. N ebraska Equal Opportunity Comm’n , 557 N.W.2d 684, 693 ( Neb. 1997); Island County v. State
, 955 P.2d 377, 389 (Wash. 1998) (Sanders, J., concurring) (stating that surrender of judicial power, “often euphemist ically deno

minated ‘restra

int,’ is sometimes fa

lsely glorified as an aspect of the judiciary

’s role as a co-e

qual b ra nch of government; however, in matters of constitutional law, the judiciary is not co-equal, but supreme”).

Just as the General Assembly has no constitutional power to enact rules that infringe upon the prot ections of the Declaration of Rights, State v. Pilkey , 776 S.W.2d 943, 951 (Tenn. 1989); Tennes see Dep’t o f Hum. Servs. v. Vaughn , 595 S.W.2d 62, 63 (Tenn. 1980), the legislature can have no constitutional a

uthority to

enact rules,

either of evidence or otherwise, that strike at the very heart of a court’s exercise of

judicial power, see People v. Jackson , 371 N.E.2d 602, 604 (Ill. 1977) (“If the power is

judicial in character, the legislature is expressly prohibited from exercising it.”)

. Among these inherent judicial powers are the powers to hear facts, to decide the issues of fact made by the pleadings, a

nd to decide the questions of law involved. See Morrow v. Corbin, 62 S.W.2d 6 41, 645 (Tex . 1933). As an essential corollary to these principles, any determination of what evid ence is relevant , either logica lly or lega

lly, to a fac

t at issue in litiga

tion is a power that

is entrustedsolely to the care and exercise of t he judici ary. See Opinion of the Justices , 688 A.2d 1006, 1016 (N.H. 1997). Indeed, a “court’s constitutional function to independently decide controversies is impair

ed if it m ust depend on, or is

limited by, an

other branch of

government in determining and evaluating the facts of the controversies it must adjudicate.” Id. Consequently, any legislative enactment that purports to remove the discretion of a trial judge in making determinations of logical or legal relevancy impairs the independent oper

ation of the judicia

l branch of gove

rnment, and no such measure can be permitted to stand.

If strictly construed, section 39-17-424 would represent a legislative attem pt to remov e a judge’s discretion to determine what evidence is logically or legally relevant to an ultimate fact of consequence. Moreover, to the extent that a strict interpretation of the stat ute’s mand atory language would preempt Rules of Evidence 401, 402, and 404(b), the statute would work to undermine, rather than to supplement, judicial determinat ions o f lo gica l an d le gal r ele van cy. 8 Nevertheless, w hile section 39-1 7-42 4 could be read in this manner, we will not lightly presume that the legislature intendedto usurp the role of the courts in exercising the judicial power of

the state. Ind

eed, because

we give all legislative enactments a strong presumption of constitutionality, Petition of Burson , 909 S.W.2d 768, 775 (Tenn. 1995), we will presume that the legislature did not

intend to infringe upon the proper exercise of the judicial power in this state and that therefo

re, it did not intend

for courts to strictly c

onstrue this statute

in the manner adop

ted by the low

er courts.

So presuming, it see

ms clea r that the legislature intended only to suggest factors f or trial courts to consider w hen asse ssing whether a n object constitute

s drug paraphe

rnalia in order to9 In relevant part, these commen ts read as follows: The list ing of these fact ors in the Model

Act is not in tended t o be peremp

tory; a cour t or other authority is not obligated to hear evi dence on, or to co nsider, every liste d factor. Ra ther, the factors have been included to guide la w enforc ement o fficers, judge s, and jurie s in their deter minatio n o f what is co ntrolled. Providing guidance on the practical application of

the Act minimizes the risk of arbitrary and discrimina tory enforcement , sometimes a ssociated w ith even the most car efully dr afted
statutes. (emphasis added).

10 Judicial cons

truction of

statutes to avoid possible

infring ement upon the inh

erent power

of the judiciar y is
not uncommon, even if s uch construct

ion result

s in inser ting additi

onal requireme nts not found in the pl ain lan guage of the statute it

self. In Petiti

on of Burson , 909 S.W.2d 768, 776 (Ten n. 1995), t

his Court

was face

d with t he questi on of whether the Genera l Assembly coul d prescribe penalt

ies for th e unauthorized prac

tice of la w. Although we he

ld that regulat ion of the u nauthori

zed p ractice of law w as a powe r inherent in the ju diciary, we pe rmitted the legisla ture to prescri be a criminal

penalty for this un lawful condu ct, see Tenn. Code Ann. § 23-3- 103(b) (1994),because t he legi slati

on
was “an aid t

o the inh

erent power

of thi s Court ra

ther th an an inf

ringement

upon our cons

titut ional an d in herent responsibili

ties.” Burson , 909 S.W .2d at 776

. In defini ng the phr

ase “unau

thorize d practic e of law, ” the le

gislat ure did not

include the re quirem ent of Supreme Court Rule 8, EC 3-5 that con duct may co nstitute unautho rized prac tice of law “only if the doing of those act s requires ‘the professiona l judgmen t of a lawyer.’” Compar e Tenn. Co de Ann. § 23-3-10 1, with Tenn. R. Sup.Ct. 8. Nevertheless, to avoid constitutional problems, we cons tr ued the stat ute to incl

ude this addit

ional qualif

ication as otherwise required by our Rules. So construed, the statute w as a proper reflect ion of legis

lative i ntent, and i

t avoided any constitutional d eficiencies in this reg ard. W e recognize that it would be clearly inappropriate t o include additi

onal requirement s not foun d in the plain language of the st atute if such a construct ion would not further the int ent of the legislat ure in enacti

ng the stat

ute.
-10- minimize the risk of arbitr

ary or disc

riminatory e

nforcement o

f the law. Cf. Model Drug Paraphernalia

Act (1979) comme nts ar t. I. 9 As such, the requirements of section 39-17-424 are more properly interpreted to supplement, rather than impair, the operation of the Rules of Evidence. Acco rdi ngly, in recognition of our duty to interpret statutes so as to provid e for harmonious operation of

the laws, Holder v. Tennessee Judicial Selection Comm’n , 937 S.W.2d 877, 833 (Tenn. 1996), we hold that a tr

ial court sho uld admit the types of evidence listed in Tennessee Code Annotatedsection 39-17-424 to demonstrate that the object at issue is classifiable as drug paraphernalia, but the court may do so only to

the extent that the proffered evidence other

wise meets all of the requirements for admissibility under the Rules of Evidence. 10
Although the Court of Criminal Appeals in this case concluded that the statute

prevailed over any conflicting rules of evidence, we respectfully disagree with the two rationales advanced by that court to resolve the apparent co nfli ct between these provisions. The intermediate court first reasoned that when two laws conflict, the last provisionto be enacted usu ally gove rns. Using this rationale, the court explained that

although Rule 404(b) was enacted after section 39-17-424, the antecedent of Rul e 404(b) was first articulated in 1985 in State v. Parton , 694 S.W.2d 299 (Tenn. 1 985)

. Because the statute, under this theory, was enacted four y ears after the first articulation of the standard later to become Rule 404(b), the court reasoned that the statute governed.

We cannot agree that the Court of Criminal Appeals pr operly ap plied this canon of construction in this case. Although the court traced the roots of Rule 404(b) back to our decis ion11 It is true that Rule of Evidenc e 101 provides that “ [t]hese rul es shall gove

rn evidence rul

ings in al

l trial
courts of Tenne ssee excep t as otherwise p rovided by statute or rul es of t he Supre me Court of T ennessee.” Howev er, this Rule is not pr

operly con strued t

o give th e legis lature the power t

o supersede

by stat ute othe rwise appl

icable r ules of evidence. Rather,

as sugge sted by

the Advisory Com mission Comme nts, the power contemp lated by Ru le 101 is on ly the ability to requ ire a particular forum to ap ply the Rules to its own proc eedings.

-11- in Parton , we cannot determine why it was unne cessary to also trace the a

ntecedent of the

statute bac k to its original enactment in 1984. See 1984 Tenn. Pub. Act s ch. 1005. As th

e statute wa s unaltered by the General Asse

mbly during its re-enactment in 1989, the legislature’s intent is more properly ascertained by

looking to the stat

ute’s o rigina l enactment in 1984. See Passamano v. Travelers Indem. Co. , 882 P.2d 1312, 1321-22 (Colo. 1994) (“A legislative in tent to change the meaning of a statute in the course of a general revision will not be inferred unless such

an intention is required by

express legislati

ve language .”); Mendez v. Supe rior C ourt , 253 Cal. Rptr. 731, 738 (Cal. Ct. App. 19 88) (stati ng th at when the legislature merely recodifies a statute unde r a new number, “there is no reasonable inference that the Legislature has alter ed its original intent or moti vation”). Bec ause the original enactment of the statute in 1984 can give us no clue as to the legislature’s intent with regard to our later arising decision in Parton and its progeny , including Rule 404(b), this canon of construction provides an unpersuasive basis for resolving the apparent conflict in the statutes.

The inter mediate co urt also found that the statute prevailed over Rule 404(b) because the statute addresses a specific piece of eviden ce admitt ed in a spe

cific con text for a specific purpose. In so finding, howev er, the Court of Criminal Appeals overlooked the effect of Tennessee Code Annotatedsection 16-3-406 (1994), which pro

vides that “[a]fter

such rules shall

hav e become effective, all law in conflict therewith shall be of no further force or effe

ct.” According

to the plain language of this statute, therefore, once the Rules of Evidence became effective on January 1, 1990, all conflicting sta

tutes in effect a

t that time

were rendere

d inoperative. As

there is no dispute

that section 39-17-424 was in effect when the Rules became effective, that statute can be “of no further force or effect” to th

e extent that it conf

licts with Rule

404(b), irrespective of the specific nature of the issues address

ed by it. 11 Cf. Bush v. Bradshaw , 615 S.W.2d 157, 158 (T enn. 1981); see also Haynes v. McKenzie Mem’l Hosp. , 667 S.W.2d 497, 498 (Tenn. Ct. App. 1984).

However, even if section 39

- 17-424 was rendered inoperative upon the enactment of the Rules of Evidence, we believe that this statute, as properly construed , is one to wh ich the courts should give effect in the interest of int er-b ranc h co mit y. Because the legislature did not intend for the factors in section 39-17-424 to be absolute or preemptive, and because the legislature did not intend to remove the discretion of the trial judge to determine the logical or legal relevance of such evidence, the statute supplements the Rules of Evidence and should be permitted to operate to the fullest ext ent all owe d by th e Rules. We believe that this construction is sound because it gives operational effect to both

statutes, and it is in accord with the intention of the Ge neral Assembly

to help supplement and guide the judicial process so as to preven t arbitra ry and discriminatory enforceme

nt of the drug paraphernalia laws. Therefore, finding that section 39-17-424 does not preempt any otherwise applic

able Rules of Evide

nce, we must turn o

ur attention to

consider whether the trial court properly admitted evidence of the appellant’s prior convictions in this case.12 In relevant part, these commen ts read as follows: Section A makes it a crim e to: (i) posses s an objec t; (ii) classifiable as drug paraphe rnalia; (iii) with the intent

to use that

object, e ssenti

ally, to produce,

package, s

tore, t est or us e illi cit drug s in vi

olation of the Controlled Substances Act of the State. Secti on A does not make th e mere possession of an object capable of use as dr ug par aphernalia a crim e. Section A does not m ake the mer e intent to violate the drug laws

a crime. It is the

possession of drug pa rapherna lia accomp anied by an intent to

use it to violate the drug l aws that Section A forbids. Innocentcitizens have nothing to fear from Section A

. -12-

APPLICATION OF TENNESSEE CODE ANNOTATED

SECTION 39-17-424 IN THIS CASE
The appellant in th

is case was indict

ed and convicted

for possession of d

rug parapher

nalia withintent to

use it in violation of Tennessee Code Annotated section 39-17-425(a) (1997), which reads in releva

nt part as follows:

(a)(1) Exceptwhen used or possessed with the intent to use

by a person authorized by this part andtitle 53, chapter 11, parts 3 and 4 to dispense, prescribe, manufacture

or possess a controlled substance, it is unlawful for a ny person to

use, or to possess withintent to use, drug paraphernalia to plant, propa gate, cultivate, grow, harvest, manufacture, compound, conver t, produce, proc

ess , pre pare, test, analyze, pack, repack, store, contain, conceal, inject, ingest, inhale, or otherwise introduce into the human body a

controlled substa

nce in violation of

this part.

As can be seen from the statute, the State had the burden in this case of proving three element s beyond a reasonable

doubt: (1) that the defendant possessed an object; (2) that the object possessed was classifiable as drug paraphernalia; and(3) that the defendant intended to use that object for at least one of the illicit pu

rposes enumerated in

the statute. Cf. Model Drug Paraphernalia Act

comme nts ar t. II. 12
According to Tenness ee Code Annotated section 39-17-424, the State may introduce evidence of the defendan t’s prior convicti

ons for any

violation of any

state or federa

l la w re lating to controlled substances, but only for the limited purpose of establishing the second element of the offense, i.e. , to determine “whe ther a particula

r object is drug p

araphernalia

as defined by [section] 39-17-402.” Although the trial court believed that Rule 404(b) was not ap plicable in this ca se because the evidence of

prior crimes was

being offere

d merely “t

o characterize

someitem” as drug paraphernalia, “[w]here the evidence of other crimes, wrongs, and acts may reflect

upon the character of the accused, the

procedure set f

orth in Rule 404(b) should be followed, even though the evidence is offered t o pr ove a material fact not necessarily related direc tly to the accused.” DuBose , 953 S.W.2d at 655 (emphasis added). Because the evidence of other drug convictions reflected upon the character of the appellant, Rule 404(b) governed the procedures for its admission. Therefore, when examined in this context, the trial court had an obligation to hold a hearing outside of the presence of the jury to

determine the fo

llowing issues: (1) whether the evidence of the prior drug offenses was relevant to some material iss ue “other than c onduct conforming

with a characte

r trait,” Tenn. R.13 Because the trial court in this ca se did not hold a full evident iary hearing t

o determin

e the admi ssibil

ity of the appellant’s

prior convicti

ons under the requirements of Rule 404(b), our review of t he admissibil

ity of t his evidence is de novo upon the re cord. See DuBose , 953 S.W.2d at 652- 53.

14 At the tri

al of this

case, the St

ate did not any offer any r eason for admissi

on of the appellan t’s pri or convictions other than that c ontempla ted by sectio n 39-17-4 24. Con sequently , we addres s the probative value of the evidence based only upon this the ory of the case. Even more problematic for the State,

however, is t

he fact that the appellant admitted during hi s testimony that the glass pi

pe may b e properly classified as drug paraphernalia, thereby removing any need to in troduce his prior convictions at all under sectio n 39-17-4 24. Bec ause “evide nce that the de fendant co mmitted an other crime is admissible only if the ground fo r relevance is actuall y be ing contest ed in the case on t

rial,” Bunch , 605 S.W.2d at 230, the appellant’s concessi

on shatt ered what litt

le rele vance the

evidence ot

herwise possesse

d at the t

ime of its admissio n. However, at th

e time of the appe

llant ’s moti

on in li mine to ex

clude th e evidence

of his prior crimes, this

element of the crime had yet to be con ceded, an d therefore , in determining whether this evidence was prop erly admissible in the first instance, we will confine

our inquiry to the facts known by the trial court during t he hearing on the appellant’s motion.

-13- Evid. 404(b)(2); (2) whether the probative value of that evidence was outweighed by the danger of unfair prejudice, Tenn. R. Evid. 404(b)(3); and (3) whether the proof establishing that the defendant committed the prior crimes i s shown by clear and convincing evidence, State v. Parton , 694 S.W.2d 299, 303 (Tenn. 1985).

Based on our de novo review of the record, 13 we conclude t hat the app ellant’s prior convictions for posses sion of cocaine and d rug parapher

nalia were impro

perly admitt

ed into evidence. We have often noted that “in a criminal trial[,] evidence that the defendant has committed some other crime wholly independent of that for which he is ch

arged, even th

ough it isa crime of the same character, is usually not admissible because it is irrelevant.” See, e.g.
, Bunch v. State , 605 S.W.2d 227, 229 (Tenn. 198 0); State v. Rickman , 876 S.W.2d 824, 829 (Tenn. 1994) (stating that “the general rule, which excludes evidence of other crimes or bad acts as irrelevant and prejudicial when the defendant is on trial for a cri me or act of th e same character, remains sound”). Nevertheless,

where the prior

crime “is relevant to some matter actually in issue in the case on trial andif its probative value as evidence of such matter in issue is not outweighed by its pre judicial effect upon the defendant, then such evidence may be pro perly admi

tted.” Bunch , 605 S.W.2d at 229. Because

the statute itself proposes an “other purpose” for the admission of prior convictions in this case, i.e. , to show that the object possessed by the appellant was clas sifiable as drug paraphernalia, we will assume, without deciding, that therequirements of Rule 404(b)(2) were met by the State in this case. We cannot agree, however, that the probative value of these convictions in this regard outweighed the prejudicial effects as required by Rule 404(b)(3).

Whatever probative value these former convictions possessed as evide nce relevant to whethe r
an object is properly classified as drug parapherna lia, we conclude that

it was sominimal as to be all but trivial. 14 Indeed, we c an conceive of o

nly one circ

umstance in

which evidence of prior crimes would have any probative value whatsoever on this issue: to show that the object at issue is capable of being used as drug paraphernalia, as evidenced by the defendant’s convictions for uses of the sa me
or similar objects fo

r illicit purposes.

At the tr ial of this case, however, the State only introduced the judgments of conviction without introducing the underlying facts of any conviction to help-14-

establish tha t a gl ass pip e, as evi den ced b y t he se convictions, is capable of being used as drug paraphernalia. Moreover, even under this strained theory of relevanc e, the modicum of probative value possessed by the evidence of prior convictions in this case was further diminished by the testimonyof Officer

Prestininizi, who indicated that, given his experience as a narcotics officer, he immediately

recognized theglass pipe as something “used for smoking crack.” See State v. Duncan
, 698 S.W.2d 63, 69 (Tenn. 1985) (recognizing that the probative value of a photograph i n establishing the wounds of

the victim was diminished when other evidence, such as the detailed testimony of the medical ex aminer, established the same fact). Consequently, because the State could not conne ct the prior convictions with anyt hing related to t he present case

, and because oth

er proof grea

tly reduced the need for the pri or co nvictions, we conc lude that the proba

tive value of the j udgments of conviction was

trivial at best.

B alanced against the trivial probative value of this evidence is the substantial danger of unfai r prejudice resulting from the admission of the appellant’s prior convictions for similar offe

nses. This Co urt has emphasized that “[i]n most cases, a real probability exists that the jury could be

overw helmedby the sheer volume of prejudicial evidence and that the jury could be tempt ed t o convict based upon a defe

ndant’s propensit

y to commit crimes rathe r than convict solely upon evidence relating to the charged offense.” Spicer v. State, 12 S.W.3d 438, 448 (T enn. 2000); Parton , 6 94 S.W.2d at 302 (noting the “obvious prejudice” of proof of other similar crimes). Indeed, a significant

similarit y between the past crime committed and current crime charged increase s the likelihood that “a jury would convict on the perception of a past pattern of conduct, instead of on the facts of the charged offense.” See Theus v. State , 845 S.W.2d 874, 881 (Tex. Crim. App. 1992); Statev. Mixon , 983 S.W.2d 661, 674 (Ten n. 1999) (noting the same with respect to use of prior convictions for impeachment). Because the appellant’s prior offenses w

ere substantially

similar to the offense charged in this case, the danger of unfair pre judice in this case was significant.

Because the test of Rule 404(b) is one of balance, when evidence of prior acts is hig hly probative of a material issue at trial, the chance of unfair prejudice to the defend ant is corresponding

ly diminished. See DuBose , 953 S.W.2d at 655 (Tenn. 1997); see also State v. Nesbit
, 978 S.W.2d 872, 893 (Tenn. 1998); State v. Hall , 958 S.W.2d 679, 70 (Tenn. 1997). Ne vertheless, “[t]he starting point in

considering testimony regarding prior offe nses, when offered

as substantive evidence of guilt and no t merely for purposes of impeachment, is a rule of exclusion,” State v. Rounsaville
, 701 S.W.2d 817, 820 (T enn. 1985), and we

are unpersuade

d that the balance

in this

case even comes close

to tipping the sca

les in favor of admissio

n. In fact, there can be no doubt that the trivial weight of

probative value p

oss essed by th

e evidence was completely overcome by the danger of unfair prejudice. We hold, therefore, that the evidence of the appellant’s prior crimes was inadmissible under Rule of Evidence 404(B).

We note that the inher

ent conflict pre

sent in any application of

section 39-17-42

4(2) is well illustrated by t he circumstances of this case. If the state elects to introduce evidence of prior convictions to prove that an ob ject is classifiab

le as drug para

phernalia, it must

show that

the prior convictions were virtually identical to the present charge to have

any logical relevance whatsoever. However, in making such a s howing, the state

will necessarily

run the subst

antial risk that the-15-

prejudicial effects flowing from that evidence will outweigh this minimal probative value. Trial courts are well advised

to carefully

consider this conf

lict when deciding

whether to

admit evidence of the defendant’s prior convictions for the purposes outlined in section 39-17-424.

HARMLESS ERROR ANALY SIS
Having found that the evidenceof the appellant’ s prior crimes wa s inadmissible in this c

ase to p rove whet her the glass pipe was properly classifiable as drug paraphernalia, we must now determine whether that

error was harmless. Rule of Criminal Procedure 52(a) provides that “[n]o judgment of conviction shall be reversed on app eal except for er

rors which affir

matively ap

pear to have affected the result of the trial on its merits.” See also Tenn. R. App. P. 36(b); State v. Neal , 810 S.W.2d 131, 139 (Tenn. 1991). Because “the goal of harmless error analysis is to identify the ac tual basis on which the jury rested its verdict,” Momon v. State , 18 S.W.3d 152, 168 (Tenn. 1999), we have frequently held that “[t]he line between harmless and prejudicial error is in direct proportion to the degree of the margin by which the pr oof exceeds the standar d required to convict beyond a reasonable

doubt,” see, e.g. , State v. Gilliland , 22 S.W.3d 266, 274 (Tenn. 2000); State v. Carter , 714 S.W.2d 2 41, 248 (Ten n. 1986) (ci ting Delk v. State , 590 S.W.2d 435, 442 (Tenn. 1979)). Accordingly, when looking to the effect of an error on

the trial, we will evaluate that error in light of all of the other proof introduced at trial. “The more the proof exc

eeds that which is

necessary

to support a finding of guilt beyond a reasonable doubt, the less like ly it becomes that an error affirmatively affected the outcome of the trial on its merits.” Gilliland , 22 S.W.3d at 274.

After a careful revi

ew of the recor

d, we conclude th

at the evidence o

f guilt in this case

, while sufficient for conviction, w

as clearly not overwhelming . The State intr odu ced no evidence other than the testimony of the two arresting office rs, and at its most basic level, the trial represented a credibility

contest between the two officers and the appellant, whose owncredibility was certainly diminished by evidence of his prior convictions for similar crimes. In fact, the danger that the jury considered

this evidence of

prior crimes to assess the appellant’s credibility was almost guaranteed

as the trial court’s “limiting” instruction actually told the jury that this evidence “goes to credibility .” Cf. State v. Williams , 977 S.W.2d 101, 106 (Tenn. 1998) (“It is an elementary pr inciple of law that jurors are presumed

to follow the instructions of the trial court.”

). Because the

evidence was on

ly marginally

relevant to esta

blish the nature of

the glass pipe, and because the

court erroneou

sly instructedthe jury to c

onsider the prior

crimes as eviden

ce of the appella

nt’ s cre dibility, the subm ission of

these prior offenses worked to bolster the credibility of the State’s witnesses by significantly diminishing that of the appellant. Cf. Mixon , 983 S.W.2d at 675.

In additio n to instructing the jury to consider the prior convictions as evidence of t h e appellant’s cre

dibility, the c

ourt’s limiting inst

ructions were a

lso inadequate to c

onfine the jury

to the very limited

purpose for which the evi

dence could act

ually be introduced. Although section 39- 17-424 permitted t his evidence only to show that the glass pipe may be objectively classifiable as drug paraphernalia, the court instructed the jury to consider the prior convic tions as evidence of the appellant’s “knowledge” of the object’s use as drug paraphernalia. Howe ver, because the defendant’s knowledge of the object’s use is irrelevant as far as section 39-17-424 is concerned, the-16-

instruction was misleading at best, and it represented an inaccurate statement of the law as far as the proper use of the prior

convictions was concerned. At worst, the instruction invited the jury to infer the appellant’s inten

t to use the object for dr

ug purposes mer

ely because he “knew” of the object’s

use and because he actually used similar objects in the past. This chain of log ica l inferences is precisely that prohibited by Rule 404(b). Therefore, because the evidenc e presented

by the State was clearly not overwhelming, and because the limiting instructions given by the court were erroneous andinvited the jury to cons ider th e appellant’s propensity to commit crimes, we hold that the improper admission of the appellant’s prior convictions affirmatively appears to have a ffected the outcome of the trial on its merits. Accordingly, we conclude that a new trial is require d to ensure that this verdict was not the result of unfair prejudice.

CONCLUSION

In summary, we hold that the legislature did not intend for Tennesse e Code Annotated section 39-17-424 to admit e vidence that is

otherwise inadmissible under the Rules of Evidence, and

we hold that the evide

nce of the appel

lant’s prior conv

ictions was not prop

erly admissi

b le under Tennessee Ru le of Evidence 40 4(b). Because

we further conc

lude that the err

or in this c as e affirmatively

appears to have affected

the outcome of the trial, weremand this case to the Rutherford County Circuit Court for a new trial. The judgment of the Court of Criminal Appeals is reversed.
Costs of this appeal are assessed to the appellee, the State of Tennessee.

_________________________________ WILLI AM M. BARKER, JUSTI CE