### IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE AT JACKSON May 8, 2001 Sess

ion STATE OF TENNESSEE v. CORWYN E. WINFIELD Direct Appeal from the Criminal Court for Shelby County No. 98-08227 Bernie Weinman, Judge

No. W2000-00660-CCA-R3-CD - Filed July 11, 2001

The defendant was convicted of second degree murder by a Shelby County jury

in the shooting dea

th of his girlfriend. Hewas sentenced to twenty yea rs as a standard offender, with his sentence to be served without parole eligibility in the Tenne ssee Department of Correction. In this appeal as of right, the defendant

raises one issue: whether the trial court erred in admitting the testimony of the mother of the victim concerning a prior alleged assault on the victim by the defendant. We conclude that the evidence was admissible, ha ving satisfied a

ll three conditions for admissibility of evidence of prior bad acts pursuant to Tennessee Rule of Evidence 404(b)(1)-(3). The judgment of the trial court is affirmed. Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Criminal Court Affirmed
A LAN E. G LENN , J., delivered the opinion of the court, in which D AVID H. W ELLES , J., a nd L. T ERRY L AFFERTY , S R .J., joined. Thomas E. Hansom, Memphis, Tennessee, for the appellant, Corwyn E. Winfield. Paul G. Summers, Attorney General and Reporter; Kim R. Hel per, Assis tant Attorney

General; William L. Gibbons, Dis

trict Attorney

General; and Rosemary

Andrews, Assistant District Attorney General, for the appellee, State of Tennessee. OPINION The defendant and

the victim, Chijuana Bassett, both in their early twenties at the time of the offense, had beenin a rom ant ic, but app aren tly v ola til e, re lat ion shi p si nce t hei r hi gh sc hoo l da ys at Fairley High School in Memphis and together had a five-year- old daughter . Th e relationship had la sted some nine years. The victim and their daughter lived with the victim’s mother, Shirlean Bassett. The defendant had his own residence and was emp loyed as an aircraft maintenance mechanic at Northwest Air Link. Off icer Brian Nemec te

stified that on Nove

mber 25, 1997, he w

as at Methodist Hosp

ita l

South checking on a call for an attempted suicide. He and his partner were just exiting through the-2-

first set of

glass doors at the emergency room of the hospital when he saw a vehicle drive into the emergency

entrance and park in a

n area he knew wa

s reserved for a

mbulances. This c

aught his attention. Offic

er Nemec testif

ied further as f

ollows:
A. I am sti ll continually

walking out the do

or and I notic

ed a ma l e that had gotten out of a small - - it was a green car. I just saw him getting out of a green car. Q. Yes, sir.
A. As he got out, he kind of had a, I wouldn’t call it a smile, it was more of a smirk type look on his face. An d as I approached the seconddoor [of the hospital exit] the motion detect or picked it up. That door opened

and that is when the individual that got out of the car looked straight at me. And that is when I noticed his facial expression changed. Q. And how did it change?
A. It got to more of like a frightened ty pe look and like a

scared look.

. . . . Q. Now, when he arrived at the emergency room, parked there, were his lights flashing? A. No, ma’am. Q. Did he honk his horn? A. No, ma’am. Q. How did he exit the car?
A. Very - - he pulled forward in and he exited the car, just got ou t. You know, opened the door and got out and clos ed the do or and started walking

towards the actu

al doors. Q. Uh-huh. Did he run? A. No, ma’am. Q. Did he park the car at an angle? Did he run up on the curb?1 This version is the one the d efendant ga ve in his written statem ent. The en tire statement wa s read to the jury. -3- A. No, ma’am. Officer Nem ec asked the defendant what had happened, and was told that the victim had calledthe defendant and said she was coming to his house. Later, the defendant looked outside his house and saw that the victim was sitting in her vehicle. He went to her car, and, finding that she had been shot, move

d her to his vehicle

and drove her to t

he hospital. Officer Nemec testified

that, because of thevictim’s size, it took two attendants, plus Nemec and his partner, to remove thevictim from the car. Nemec said that, before the victim was removed from the vehicle, he saw that a quart beer bottle, whic

h was held betwee

n the victim’s leg

s, had dew on the outside and was still cold. Also, he saw that the victim’s purse was between her ankles on the floorboard. Nemec believed that these observation s were i nconsistent with the defendant’s explanation of what had happened, and asked the defendant about them. The def endant s aid that when he had moved the victim from one vehicl e to another, the p urse had been in h

er hands. However, he did n

ot explain why

a bottle of still cold

beer was betwe

en her legs. The defendant gave

two different explanations of the shooting to investigators. According to the first oral statement, which matched but was in more detail than that given to Officer Nemec, the victim called the defendant at his home on November 25, 1997, and said that she had gotten off work early by giving

an excuse about having to pick up their dau ghter from scho

ol because the c

hild was sick. She told the defendant that she w anted to come over to his house. The defendant was cooking some thing when he hear d her drive up and stop in front of his house. When she did not immediately

come to the door, he looked outside and saw her slumped over in the car. He went to check on her and realized that she had been shot. The defendant said that he then dragged the victim from her car into his 1993, three-door, green Honda Civic and drove her to the emergency room at Methodist Hospital-South. After Sergeants

Shemwell and Logan had told the defendant of information they had which was inconsistent with this version of the s hooting, the defendant then gave a second version. According to the defendant’ s second version o f events, 1 what actually happened was that the victim had paged him from the Circle K on Shelby Drive at approximately 1:30 p.m. When he called her back, she told

him she had taken off work early. He told her to come on to the ca r wash where he was waiting to have his car cleaned. They then drove in her car to a liquor store where he purchased gin. They went ba

ck to get h

is car and th en drove to h is house wh ere they contin ued drinki ng. Sub seq uen tly, they left his house in his Honda Civic and weredriving east on Shelby Drive when the victim mentioned something abo ut the defendant’s handgun. He took the gun out from underneath his se

at and the followin

g occurred, a

ccording to the

defendant: She said, “[Y]ou ain’t gonna do nuthin with it so put it up.” So, I said, “[W]hatever.” So at t ha t time I had my right arm around her seat and I was stearing [sic] the car with my right knee and I had the2 Photog raphic evidence did not re veal marks to the victim’s neck, and Dr. Smith testi fied on cr

oss-exa minati on that he saw no markings on the victim’ s neck. -4-

gun in my left hand. At

that point, I had cocked it. She reached over as I was uncocking the gun a nd she grab bed my hand and the gun fired. When the gun fired, I looked at Chijuana and she was like coughing so I looked down and seen that she had been shot under her left arm near her breast so I drove t

o Swinnea Roa d and made a left, then I drove to Winchester andmade a left. Abo ut W inc hes ter and Air ways I called Vonrico from my cellular phone (60 5-0947) a nd I told him that I had accidentally shot my girl a nd I didn’t know what to do. So, he told me

to take her to the hospital and I told him that’s where I was headed and he said that he would meet me there. So I dr ove dow n Winchester ‘till I got to Graceland and made a left and drove down Graceland

past the first stop sign and I threw the gun ou

t in a gutter on Graceland by some leaves on the east curb. I continued down Graceland to R aines Road where I made a right [and] went [down] Faronia where I made a left and

drove to Methodist

South Emergency Room. When I got to the hospital I pulled up to the Eme

rgency Door and I got out, ran through the door and there was a

policeman standin [g] so I told him that my

girl was shot. That’s when the doctors and nurses went to the car. Thus, the defendant maintained that the shooting was accident al. Althou gh he chose not to tes tif y, in his statement read to the jury, the defendant denied that he and the victim were fighting or arguing at the time of the shooting. In fact, the defendant claimed that the two were making plans to marry before Christmas. The defendant explained the presence of several long scratches on the back of his neck in the following statement, “When I get my hair cut, the back

of my neck

itches a lot so I scratch it with my nails and I have a rash on both sides of my neck and they itch a lot.”
Dr. O’Brian Cleary Smith, Shelby C ounty Medical Examiner, testified concerning the victim’s injuries and the cause of death. He said that the victim was five feet, four inches tall and weighed 218 pounds. The victim had bruisedmuscles on the right and left side of the hyoid bone, the bone right

underneath

the jaw, as well as bleeding behind the esophagus. Dr. Smith testified that such injuries were consistent with a “blow to the throat or it could be a squeezing type action which would cause t he ti ssues to be crushe

d underneath.” D

r. Smith also stated t

hat it was possible t

o damage underlying

tissues without damaging theskin. 2 The choking type injuries to the victim were described by Dr. Smith a

s “contemporane

ous” with the guns

hot wound, in that th

e injuri es to the victim’s neck could have occurred no mo re than an hour pr ior to the gunshot w

ound. Dr. Smith3 The autopsy of the victim revea led the presence of ethyl alcohol at a blood level of .08 grams per decaliter but no drugs. -5- testified further

that the injuries to the victim’s neck could not have been caused by the intubation of the victim during

the emergenc

y room resus

citation procedu

res. 3
The gunshot wound suffered by the victim was classified by Dr. Smith as a

“loose contact gunshot wound” or one where the muzzle of the weapon “w ould had [sic] been pr

essed up agains

t the cloth surface and the cloth up against the skin at the time the weapon was fired.” It was a wound that would cause d

eath in about seve

n to eight minutes without intervention. Dr. Smith described the path of the single gunshot wound that entered the victim’s body on the left side at the top of the lef t ar mpi t in the fol low ing t est imo ny:

Of the gunshot

wound that comes in here at Gunshot Wound A, went through the skin and then fr actured the thir

d rib, went d own and bruised the left upper lobe of the lung, went through the heart, went through the diaphragm, which is a sheet of muscle that is [sic] the chest o rgans from the abdominal organs, went through the diaph ragm , injury of the stomach, injury of the pancreas, injury of the liver. Went do wn towar ds the center line cord, the spine of the body, going through the aorta, which is the largest artery of the body , and lodged in the spine, not the spinal cord, but just the spine itself, just the bone, at T12, which is the last thoracic vertebrae, the last vertebrae that has a connection to a rib. And that bullet was recovered from that area. The bullet taken from the victim’s body was identified by Tenne ssee Bureau of Investigation Special Agent Steve Scot

t as a .22 caliber

bullet. Accordin

g to the defenda

nt’s statement, the

victim was shot with a “.22 caliber revolver, 6-shot, black with pistol grip handles,” a weapon he claimed to have thrown from his car. A thorough search by police of the area whe re the defendant said he threw the weapon was unsuccessful. Officer Robert Martin of the Memphis Police Department testified that on August 19, 1998, some nine months after the shooting, he and his partner recovered a .22 caliber revolver with pistol grip handles from the trunk of the green Honda Civic owned by the defendant. Special Agent Sc ott was unable

to determine conclusively that the bullet taken from the victim’s body had

been fired

from the weapon retrieved from the defendant’s car trunk, but neither was he able to exclude the weapon as the murder weapon. Laboratory results were inconclusive.-6- ANALYSIS
In his sole issue on appeal, the defendant contends that thetrial court erred when it allowed the victim’s mother, Shirlean Bassett, to testify concerning a prior bad ac t of the defendant, i n violation of Tenne ssee Rule of Evidence 404(b). The defendant points to the use made of the evid ence by the prosecutor during her closing argument as constituting the unfair prejudice he suffered.
Ms. Bassett testified that

on April 10, 1997, the victim and the victim’s daughter were living withher a t th e McK ell ar W ood s Ap art men ts. On t his day, Ms. Bassett an d the victim had just arrived home from work when someone banged on their door. Ms. Bassett answered the door. She recognized

the person at her door as the defendant, Corwyn Winfield. The victim stepped outside of the apartment to talk to him. Ms. Bassett went to her room to change clothes from work. A few moments later, a neighbor from a downstairs apartment knocked on her door and told her that the defendant w as beating up her daughter . Ms. Basset testified to the foll owing:

A. I ran out of the house, ran downstairs. And she was down on the ground and he had her down beating her. He had been beating he r and he was pulling her across the pavement by her ha ir. Q. Okay. Wha

t did you do whe

n you saw tha

t, Ms. Bassett?
A. I gr abbed his sweater, tried to pull him off of her. He backed away from her and pushed me. Turned around to me and pushed me and balled up his fist as if he were goi ng to hi t me because I was trying to get him off of her. Q. Did Chijuana sust

ain any injur

ies as a result of t

his? A. Yes, she did. Q. What were those

injuries? A. She had a sprained right knee. Q. Okay. An

d did Chijuana file c

harges as a re

sult of this? A. Yes, she did. Q. Were these charges still pending at the time of the death? A. Yes, they were.-7-

On cross-examinat

ion, Ms. Bassett a

dmitted that she did n

ot kno w what precipitated the altercation, nor did she see the defendant actually hit her daug hter. The testimony

of Ms. Bassett is

of a prior bad act of the de

fendant, and its a

dmissibility is controlled by

Tennessee Rule o

f Evidence 404(b

), which provides

as follows: Other Crimes, Wrongs, or Acts. Evidence of other crimes,

wrongs, or acts is not admissibl

e to prove the character of a person in order

to show actio n in co nform ity wit h the c harac ter tr ait. It may, however, be admissible for othe

r purposes. The c

onditions 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; and (3) The court must exclude the evidence if its probative value is outweighed by the danger of unfair pre judice. Generally, this rule is one of exclusion, and evidence that an accused has com

mitted some other crim e or bad act independent of that for which h

e is charged is i

nadmissible, even

though it may be a crime or act of the same character as that for which t he accused is on trial. See State v. Howell , 868 S.W.2d 238, 254 (Tenn. 1993). If, however , evidence that a

defendant has committed a crime separate

from the one for w

hich he is being tr

ied is relevant to s

ome matter actually in issue in the case on trial and its probative value is not outweighed by the danger of its unfair prejudicial effect, the evidence may be admitted. Id. Legal authorities support this restrictive approach “because ‘other act’ evidence carries a significant

potential for unf

airly influe

ncing a jury.” Neil P. Cohen et al., Tennessee Law of Evidence § 404.7 at 172 (3d ed. 1 995). “Having heard about the ‘other act,’ a jury may be more

inclined to find the defendant guilty of the act charged.” Id. at 170. The findings which th

e trial court must ma

ke in determining whether such evidence is to be admitted was explained in State v. Dubose, 953 S.W.2d 649 (Tenn. 1997): “The court must find on ‘evidenceheard outside the jury’s presenc e’ thatthe evidence is relevant to a ‘material issue’ and that the probative value of the ev idence is not ‘ outweighed by the danger’ th

at the evidence w

ill cause unfair prejudice.” Id. at

652 (citing Tenn . R. Evid. 404(b)(1 )(2) & (3); State v. McCary , 922 S.W.2d 511, 513-14 (Tenn. 1996)). Additionally, the trial court must be satisfied that the evidence of the other act is clear and convincing. State v. Parton , 694 S.W.2d 299, 303 (Tenn. 1985).-8-

The trial court held a

hearing outside the jury’s presence at which time Ms. Ba ssett testified to the prior bad act. See Tenn. R. Evid. 404(b)(1). The trial court concluded that the evidence of the prior assault was admissible:

The Court is certainly of the opinion that, and certainly based on what the other cases, State versus Turnbull (spelled phonetically), State vers us (indiscernible), we have a situation where the information wo uld ce rtainly go towards what the hostility that the defendant has towards the victim. Certainly go to malice. What the defendant’s inte

nt was. Though I understand premeditation is not necessary for murder second degree

, but certainly

it’s got t o be a knowing killing withintentional, and show a – and as the case i ndi cates – a solo purpose for har

ming the victim. The Court is of the opinion that this testimon y would be admissible, I think, for that purpose as indicated. It’s the exce p tion really to 404. Although the trial court concluded that the evidence

was admissible

to show intent, it did not make the additional determination that its probative va lue outweighed i ts prejudicial ef

fect. Acco rdi ngly, as the reviewing court, we cannot apply the abuse of discr etion standardand, instead, will reexamine this evidence to ascertain whether it should have been admitted.
I. Relevance to M

aterial Issue The first condition for

admiss i bility is “that a material issue exists other than conduct conforming with a character trait.” Tenn. R. Evid. (404)(b)(2). Ma terial issues that

satisfy this secondcondition include e vidence offere

d to prove the motive

of the defendan

t, his identity, his intent, the absence of mistake, opportunity, or as a part of a common scheme or plan. See Bunch , 605 S.W.2d at 229. Such material issues ma

ke the evidence

of a prior bad ac

t relevant. Our supreme court

has determined that evidence of prior threats and prior acts of physica l violence perpetrated by a defendant against a murde r victim are relevant to show the defendant’s motive in the mu rder. In State v. Smith , 868 S.W.2d 561 (Tenn. 1993), the victim’s sister testified that some two months prior to the murder of her sister and her sister’s two sons, the victim, who had rope burns on her wrists and a red mark on her throat,told her that the defendant had tied her up by the wrists and neck, raped her, and threatened to kill her. See id. at 574. Our suprem e court concluded

that the testimony

was admissible as r

elevant “not to pr

ove the Defenda

nt acted in

accord with this character but as part of the proof establishing his motive for the killings.” Id.4 Second degree m urder is the “kn owing killing of a nother.” Tenn . Cod e Ann . § 3 9-1 3-2 10(a

)(1 ) (1 997) . To prove second degree murder, the State must show, beyond a reasonable doubt, that thedefendant acted with the re quisite culpable mental state, that is, tha t th e defenda nt acted “kno wingly.” A de fendant acts k nowingly “whe n he or she is aware of the condu ct or is practica lly certain that the co nduct will caus e the result, irrespecti ve of his or her

desire that the conduct or

result wi

ll occur.” Id. § 39-11-302 Sentencing Comm ission Cmts. “W hen acting kn owingly suffices to establish an element, t

hat element i s also establ ished if a per

son acts int

entionall y.” Id. § 39-11 -301(a)(2 ). -9- Our sister jurisdictions have foundsimilar bad act evidence admissible. In Cannon v. State , 776 So.2d 729 (Miss. Ct. App. 2000), cert. denied(2001), the issue was whether the trial court erred by overruling the defendant’s motion in limine to exclude testimony about prior threa

ts he allegedly made to the murder victim over the course of their relationship. See id. at 733. A witness working at the same store as the victim testified that, approximately six months prior to the shooting of the vic tim, the defendant entered the store and threatened to rape the victim. See id. On appeal, the decision of the trial court to adm it the evidence w as upheld on the ba

sis that it was admiss

ible to show malice, premeditation, and intent. See id. at 734.
In Boone v. State , 506 S.E.2d 884 (Ga. Ct. App. 1998), cert. denied(1999), the defendant sought to exclude from evi

dence threaten

ing letters he ha

d written to

his wife during th

eir separation and while she was involved in a romantic relationship with the victim. See id. at 885. The Georg

ia Courtof Appeals

upheld the decision of

the trial court to allow the evidence, noting that “[e]vidence of prior difficulties between the victim and the accused are admissible to show motive, intent, or bent of mind toward the victim.” Id. (citing Cannon v. State , 360 S.E.2d 592 (1987)).
In State v. Humphrey , 694 So.2d 1082 (La. Ct. App. 1997), the defendant was convicted of ma nslaughter

in t he stabbing murder of his former girlfriend. See id. at 1083. The State offered testimonyof an eyew

itness that hours prior to the murder, the defendant showed up at the victim’s residence and threatened

the victim, calling her a bitch and a whore. See id. at 1085. The decision of the trial court to admit the evidence was sustained on appeal. The appellate court concluded that the threats made by

the defendant tow

ards the victim we

re probative of t

he defendant’s

intent. “Further, the testimony was probative of a genuine issue

in question becau

se the defense

had claimed that the killing was an accident.” Id. at 1085-86. Here, the evidence of the prior violent act of the defendant showe d the nature of the relationship betw

een the defenda

nt and the victim an

d his hostility toward her. This evidence was relevant, as the trial co urt co ncluded, to the material issue of the defendant’s intent to harm the victim. 4 See , e.g. , State v. Turnbill , 640 S.W.2d 40, 47 (Tenn. Crim. App. 1982) (“[T]he prior relations between the victim and the appellant were relevant matters for the jury’s consideration on the question of the app

ellant’s in tent.”). Evi dence of the def endant’s prior a

ssault of the victim

, offered as proof of intent and rebuttal of the defense of accident, was, therefore,relevant to material issues in his trial for second degree murder.-10- II. Balancing Test: Probative Value vs. Prejudicial Effect The second condition to

be satisfied before evidence of other bad acts is admissible is that i ts probative value must not be outweighed by the danger of unf air prejudice. See Tenn. R. Evid

. 404(b)(3). The defe nd ant argues that he suffered unfair prejudice as the result of the errone ous admission of the testimony concerning the prior assault on t he victim be cause the prosecutor was able to improperly

refer to this

incident and arg

ue that the defen

dant had acted in

conformity

with a character trait. Spe cif ica lly, the defendant po ints to the following por

tions of the State’s

closing argum

ent: This trial is about fear, intimidation, humilia tion and control. That ultimately

resulted in the de

ath of Chijuana Ba

ssett. Sitting before you today is a man that drug a two hundred plus pound woman across the p acking [si c] lot by her hair and couldn’t control her. Threatene

d her mother at the

same time

with his fist

and s till couldn’t control her. Shoved her and still couldn’t controlher

. And ultimately

pressed a gun up against t

he ribs of her che

st, so close to her that when the bullet was fired there was soot and debris all the way into her

heart and her ri

bs. It is about con

trol. That is what this trial is a

bout is because this man could not

control this woman.

He couldn’t drag

her across the parking lot and c

ouldn’t control he

r. Couldn’t th

re aten her mother a nd control her. Couldn’t choke it out of her. But he ultimately killed her to control her, and that is the ultimate control. The defendant also points to statements by the prosecutor that basically recount Ms. B ass ett’s tes tim ony, as well as to

the following ar

gument that, acc

ording to the def

endant, invited the jury

to find that the shootin

g was an act in c

onformance with

the earlier assa

ult:
Is it hard to believe that a man who has drug her by her hair, assaulted her and choked her w ouldn’t waive [sic] a gun at her? Is it

hard to believe that? Is it hard to believe he wouldn ’t point a gun at her and say, bitch, do what I’m telling you to do? Is that hard to be lieve ? I submit to you, no, it is not. Because this is a man that livesfor fear, the fear and inti

midation and contr

ol over Ms. Basse

tt. The weighing of the pr

ob ative value and p

rejudicial effe

ct of evidence o

f other crimes is determin ed from the evidence itself and not by the use, or alleged misuse, of the e vidence during final arguments. In fact, standards different from those established by Tennessee Rule of Evidence 404(b) are used to deter

mine the propriety

of a pr osecutor’s fina

l argument and,

if improper, its-11-

effect upon the trial. We conclude that the probative value of the questioned testimony outweighed its prejudicial ef

fect.
We will now consider

the defendant’s

claims as to the pro

secutor’s arg

uments. First,

we note that since the defendant

did not contemporaneously object to any portions of the closing argument of the State, any

objection on appeal is waived. See Tenn. R. App. P. 36(a ) (“Nothing in th

is rule shall be construed as requiring relief be granted to a party responsible for a n error or who failed

to take whatever actio

n was reasonably

available to prevent or nullify

the harmful effect of an error.”). However, even if the defendant had objected, we

conclude that the

assailed comments

were based on the evidence and, read in context, referred to the tumultuous and troubled nature of the defendant’s relationship with the victim. Accordingly, we conclude that the prosecutor’s argument was not improper. III. Sufficiency of Proof of Other Act The required

quality of the

proof as to the othe

r act, the third c

onsideration of th

e trial court, is explained i n Neil P. Cohen et al., Tennessee Law of Evidence § 404.7, at 173-74 (3d ed. 1995) (footnotes omitted): Finding clear and convincing evidence of other act – Third, although not specifically included in Rule 404(b), the c

ourt must also find that the evi dence is clear and convincing that the defendant committed the ot her crime. This test, approved by the Tennessee Supreme Court in State v. Parton , [69 4 S.W.2d 299, 303 (Tenn. 1985)], was adopted by the Te

nnessee Supreme Court’s Advisory Commission on Civil Procedure for use with R ule 404 (b). The use of the “clear and convincing” test is sensible. Evidence offered under Rule 404(b) may have a devastating impact on the case a s the trier of fact could easily

misuse the evidence as proof of bad character. The trier of fac t should

not be exposed to this e vidence unless the

re is significant

proof that the def

endant a ctu ally committed the act offered under Rule 404(b). The victim’s mother tes

tified that, although she did not observe the initial actions of either part y, she saw that the de

fendant, moments after he had come to call on her daughter, had her on the ground beating her and then “dragged her across the pa v eme nt b y her hair.” Accordingly, we conclude that the evidence was “ clear and con vincing” of the defendant’s prior assault upon the victim.-12- CONCLUSION Based upon the foregoing authorities and reasoning, we conclude that the trial court did not err in admitting evidence of the defendant’s prior assault upon the victim. The judgment of the trial court is affirmed.

___________________________________ ALAN E. GLENN, JUDGE