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.

03/23/2021
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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 Neville3testified 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 “nonaccidental.” 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 fivemonth-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.
- 14 -

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 “nonadherent 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 
- 15 -

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 
- 16 -

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 
- 17 -

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.
- 18 -

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 
- 19 -

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:
- 20 -

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.
- 21 -

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 
- 22 -

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;
- 23 -

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 
- 24 -

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, noncharacter 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.
- 25 -

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