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

2    aggravated child abuse. The defendant was sentenced to imprisonment for life.

3    Permission to appeal was granted in order to review the trial court’s ruling allowing

4    the introduction of evidence of prior injuries suffered by the victim.

5

6                                               I

7

8                  The victim was 16-month-old Rufus Jones, Jr., whose death was

9    caused by the application of significant force, consistent with a blow with a fist to

10   his abdomen, which had developed massive internal scarring as the result of

11   older, undiagnosed injuries. The victim was pronounced dead at the hospital

12   emergency room at approximately 9 p.m. on July 3, 1993, where he was taken by

13   his mother, Ann Jones, and the defendant. Jones and the defendant were living

14   together in a mobile home with her children: Rufus, the victim; Nick, age 10; and

15   Joey, age 6. The defendant’s son, Jamie, age 4, also lived with them.

16

17                 The conviction is based on circumstantial evidence. On the date of

18   the victim’s death, the defendant went to work and Jones and the children spent

19   the morning with a friend and her small child. After the defendant returned home

20   from work, he, Jones, and all the children visited in the home of the defendant’s

21   parents until late afternoon, when they all, except Jamie, returned to the mobile

22   home. They remained together until some time later when Jones left to get pizza

23   and a movie video. When she left, the victim was sitting at the kitchen table

24   eating a hot dog. According to Jones, the victim had appeared to be well in the

25   morning but somewhat “lazy” later in the day. However, there was no evidence

26   that he sustained any injury during the day.

27

28                 Nick testified that after his mother left to get the pizza and movie, the

29   victim fell asleep at the kitchen table and was carried by the defendant to the




                                               -2-
1    bedroom. Nick stated that while the defendant and the victim were in the

2    bedroom he heard a noise, which the defendant explained to Nick was made by

3    some toys falling.

4

5                  When Jones returned, the defendant told her that he had put the

6    victim to bed. She went into the bedroom and saw him lying on a blanket on the

7    floor. She assumed the child was asleep. Later, the defendant went into the

8    bedroom and returned carrying the victim. He told Jones the child was not

9    breathing. The victim vomited when his mother gave him mouth to mouth

10   resuscitation; otherwise, he exhibited no sign of life.

11

12                 At the hospital, the defendant stated that he found the child pinned

13   between the bed and the wall. His explanation was that the victim had dropped

14   his bottle behind the bed and had been trying to retrieve it. The detective who

15   investigated the death visited the home that night. He made numerous

16   photographs and measured the distance between the bed and the wall. When the

17   detective returned the next day, he found under the bed a baby’s bottle which had

18   not been there the previous night. The detective also noticed that the bed had

19   been moved a few inches farther away from the wall. Lastly, the detective

20   discovered a rolled up blanket which the mother identified as the blanket on which

21   the victim had been lying on the night he died. The blanket was damp in one spot

22   with what appeared to be blood and mucus. The stain on the blanket was

23   consistent with a sample of blood taken from the victim.

24

25                 The medical examiner, Dr. Julia Goodin, performed the autopsy.

26   She testified that the victim's abdominal cavity was full of blood, there were

27   contusions on the intestines, and lacerations or tearing on the connective tissue to

28   the small intestines, which likely were caused by a knuckle on the perpetrator’s

29   fist. The injury which caused the tearing probably had occurred within 24 hours of




                                               -3-
1    death and certainly had occurred within 36 hours of death. Exterior bruises on the

2    victim corresponded to the internal abdominal injuries. The bruises were

3    consistent with blows to the abdomen with a fist. According to Dr. Goodin, this

4    type of blow typically is administered by an adult, not another child. In Dr.

5    Goodin's opinion, the defendant's explanation of what happened was inconsistent

6    with the injuries she observed. She testified that there was no indication that the

7    child had been pinned in any way, nor were there signs of asphyxiation.

8

 9                 Dr. Goodin also testified that there was evidence of other internal

10   injuries in the abdominal area which were at least a week old and could have been

11   several months old. She stated that the old injuries had been caused by

12   significant force and had resulted in internal scarring. Her conclusion was that the

13   mass of scarring caused by the old injuries prevented the soft connective tissue

14   from moving freely in the abdominal cavity when force was applied, thereby

15   resulting in the tearing which caused the child to bleed to death. In addition, Dr.

16   Goodin testified that on various parts of the body there were exterior contusions

17   and bruises, some of which were as much as a week old. She also found

18   evidence of prior contusions to the back of the scalp area which had resulted in

19   the development of scar tissue between the scalp and the skull. The medical

20   examiner did not associate the injuries to the victim’s head with his death.

21

22                 In addition to the injuries found by the medical examiner, proof was

23   introduced concerning an incident in March 1993 when the victim's fingers were

24   injured while he was with the defendant; the defendant told Jones that the victim

25   had smashed his fingers in the cabinet door. Because the defendant had taken

26   the child to his sister’s house, the mother did not see the fingers until later the next

27   day. Two of the victim's fingernails were missing and there was pus on the

28   fingers. She immediately took the victim to the emergency room where he was

29   treated by Dr. Woodrow Wilson. Dr. Wilson concluded that the injuries were




                                               -4-
1    inconsistent with the fingers being accidentally smashed in a cabinet door,

2    although it was possible that the victim could have sustained the injury by placing

3    his fingers in the hinged door of the cabinet and then pulling his fingers while

4    pushing against the cabinet door. He described the injury as a “superficial

5    degloving,” in which the skin is peeled off and there are no fractures. He

 6   suspected child abuse and discussed his concerns with the mother.

 7

 8                     Harvey Wood, the mother’s brother-in-law and also the defendant’s

9    uncle, testified that the defendant showed hostility toward the victim. Wood

10   explained that the defendant disliked the victim’s father, Rufus Jones, Sr. The

11   defendant had told Wood that the victim “looked just like his daddy, sounded like

12   his daddy, cried like his daddy and that he couldn’t stand that little bastard either.”

13   Wood testified that on one occasion he had seen the defendant strike the victim

14   on the head. W ood also stated that the defendant had tried to get him to change

15   his testimony.

16

17                     The defendant’s basic defense was that there was not sufficient

18   admissible evidence to prove the charge. The defendant initially claimed that the

19   child’s death was accidental - that it was caused by his becoming caught between

20   the bed and the wall. At trial, he insisted that there was no evidence showing the

21   cause of the fatal injury, that the evidence showed the injury could have been

22   caused accidentally by the children at play or intentionally by persons other than

23   the defendant. The Court of Criminal Appeals, however, found that the evidence,

24   though circumstantial, was sufficient to support the conviction. The defendant’s

25   application for permission to appeal the sufficiency of the evidence was not

26   granted. The only issue before this Court is the admissibility of the evidence of

27   prior injuries.

28

29                                               II




                                                -5-
 1

 2                            The defendant contends that the trial court committed reversible

 3              error in allowing the jury to hear evidence of the prior injuries sustained by the

 4              victim. He objects specifically to the testimony of the mother and of the

 5              emergency room physician about the injury to the victim’s fingers in March 1993

 6              and the testimony of the medical examiner about the prior internal and external

 7              injuries. The State contends that the evidence was admissible to show the cause

 8              of death, and also that the injury was caused “knowingly, other than by accidental

 9              means,” as provided in Tenn. Code Ann. § 39-15-401(a)(1991). The defendant

10              would invoke Rule 404(b) of the Tennessee Rules of Evidence to exclude the

11              evidence of prior injuries. He contends that the evidence was not probative of any

12              element of the offense and, further, even if relevant its probative value was

13              outweighed by unfair prejudice.

14

15                                                         III

16

17                            The first issue to be resolved is the standard of review of the trial

18              court’s decision regarding the admissibility of the evidence. The standard of

19              review where the decision of the trial judge is based on the relevance of the

20              proffered evidence under Rules 40l1 and 4022 is abuse of discretion. Neil P.

21              Cohen et al., Tennessee Law of Evidence § 401.5 at 86-87 (3d ed. 1995);

22              Dockery v. Board of Professional Responsibility, 937 S.W.2d 863, 866 (Tenn.

23              1996); cf. State v. Porterfield, 746 S.W.2d 441, 450 (Tenn. ), cert. denied, 486


            1
                “‘Relevant evidence’ means evidence having any tendency to make the existence of any
     fact that is of consequence to the determination of the action more probable or less probable than
     it would be without the evidence.” Tenn. R. Evid. 401.

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




                                                           -6-
 1           U.S. 1017 (1988). Where the admissibility of the proffered evidence must also

 2           comply with Rule 404(b)3 and the trial court has followed the procedure mandated

 3           by that rule, it appears that the same standard, abuse of discretion, would be

 4           applicable. See State v. Brewer, 932 S.W.2d 1, 24 (Tenn. Crim. App. 1996).

 5           However, in view of the strict procedural requirements of Rule 404(b), the decision

 6           of the trial court should be afforded no deference unless there has been

 7           substantial compliance with the procedural requirements of the Rule. The

 8           procedure for determining admissibility of evidence of other “crimes, wrongs, or

 9           acts” is set forth in the rule.4 The court must find on “evidence heard outside the

10           jury’s presence” that the evidence is relevant to a “material issue” and that the

11           probative value of the evidence is not “outweighed by the danger” that the

12           evidence will cause unfair prejudice. Tenn. R. Evid. 404(b)(1)(2) & (3); State v.

13           McCary, 922 S.W.2d 511, 513-14 (Tenn. 1996). If the evidence is admitted, the

14           trial court “must upon request state on the record” the material issue to which the

15           evidence is relevant and the court’s reasons for admitting the evidence. Id. at

16           404(b)(2). The trial court did not comply fully with these procedures. However,

17           where, as in this case, there was a hearing outside the presence of the jury, but

18           the trial court failed to determine and state on the record the material issue to



         3
             Rule 404(b) provides as follows:

                  (b) Other Crimes, Wrongs, or Acts. -- 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; and

                 (3) The court must exclude the evidence if its probative value is outweighed by
         the danger of unfair prejudice.
         4
         Rule 404(b) was drafted in response to this Court’s opinion in State v. Parton, 694
  S.W.2d 299 (Tenn. 1985). In Parton, “the Court established precise procedures to emphasize that
  evidence of other crimes should usually be excluded.” Tenn. R. Evid. 404(b) advisory
  commissions’s comments.




                                                            -7-
 1   which the evidence was relevant and also failed to find that the probative value of

 2   the evidence was not outweighed by the danger of unfair prejudice, the

 3   determination of admissibility will be made by the reviewing court on the evidence

 4   presented at the jury out hearing.

 5

 6                                              IV

 7

 8                 Since in this case the Court must apply a different standard of review

 9   if Rule 404(b) is applicable, the next issue to be considered is whether the

10   admissibility of the evidence of prior injuries is controlled by Rules 40l and 402 or

11   whether Rule 404(b) is also applicable. The admissibility of the evidence of prior

12   injuries to the victim’s abdominal area, and the evidence of prior injuries to the

13   victim’s hand and head, must be considered separately.

14

15                 In regard to the evidence of prior injuries to the victim’s abdominal

16   area, the defendant contends that the medical examiner’s testimony regarding

17   prior injuries is irrelevant unless the injuries can be attributed to the defendant.

18   That interpretation is unduly restrictive of the meaning of relevance. Rule 404(b)

19   applies to “evidence of other crimes, wrongs or acts” of the person on trial, and

20   excludes evidence of such acts only when offered for the purpose of proving

21   character or trait of character. State v. Nichols, 877 S.W.2d 722, 732 (Tenn.

22   1994), cert. denied, 513 U.S. 1114 (1995). Evidence of crimes, wrongs or acts, if

23   relevant, are not excluded by Rule 404(b) if they were committed by a person

24   other than the accused and are only conditionally excluded if committed by the

25   accused. Since the evidence admitted did not show the identity of the person who

26   caused the prior abdominal injuries sustained by the victim, it was not inadmissible

27   under Rule 404(b) as reflecting upon the character of the defendant.

28

29                 Consequently, the admissibility of the evidence is dependent upon




                                               -8-
 1   its relevance under rules 401 and 402. The relevance of proffered evidence is

 2   determined by the issues presented for resolution in the trial, which, in turn, are

 3   determined by the elements of the offense charged and the defense asserted by

 4   the accused. As stated in the Advisory Commission Comment to Rule 401, “[t]o

 5   be relevant, evidence must tend to prove a material issue.”

 6

 7                 The defendant was charged with and convicted of first degree

 8   murder by aggravated child abuse, which was defined as: “A reckless killing of a

 9   child less than thirteen (13) years of age, if the child's death results from

10   aggravated child abuse, as defined by § 39-15-402, committed by the defendant

11   against the child.” Tenn. Code Ann. § 39-13-202(a)(4) (Supp. 1993) (current

12   version at § 39-13-202(a)(2) (Supp. 1996)). The offense of aggravated child

13   abuse is defined in the statute as follows: “A person is guilty of the offense of

14   aggravated child abuse who commits the offense of child abuse as defined in §

15   39-15-401 and: (1) The act of abuse results in serious bodily injury to the child; or

16   (2) A deadly weapon is used to accomplish the act of abuse. ...” Tenn. Code Ann.

17   § 39-15-402 (a)(1991). The offense of child abuse was defined as follows: “Any

18   person who knowingly, other than by accidental means, treats a child under

19   eighteen (18) years of age in such a manner as to inflict injury or neglects such a

20   child so as to adversely affect the child's health and welfare is guilty of a Class A

21   misdemeanor.” Tenn. Code Ann. § 39-15-401 (a)(1991)(amended

22   1994)(emphasis added). These statutes required, for conviction of first degree

23   murder by aggravated child abuse, proof that the defendant knowingly, other than

24   by accidental means, inflicted upon the victim serious bodily injury that caused his

25   death.

26

27                 Here, the evidence of prior injuries to the abdominal area was

28   admissible to show causation. According to Dr. Goodin, the scarring of the

29   abdominal area caused by the prior injuries created a condition which allowed the




                                               -9-
 1              later blows to cause the injuries which resulted in the victim’s death. This

 2              evidence was relevant to causation regardless of the identity of the perpetrator.

 3              The external bruises to the abdomen were consistent with the internal injuries and

 4              were in fact evidence of the same injuries. Thus the prior injuries to the

 5              abdominal area were admissible because they directly related to the cause of

 6              death and also because they tended to prove that the injuries were caused by

 7              someone intentionally and not accidentally.

 8

 9                            The next issue is whether the probative value of the evidence of the

10              abdominal injuries was outweighed by the danger of unfair prejudice. Since, as

11              stated above, Rule 404(b) is not applicable to this evidence, its admissibility must

12              be considered under Rule 403, Tennessee Rules of Evidence.5 Rule 403 permits

13              a court to exclude relevant evidence “if its probative value is substantially

14              outweighed by the danger of unfair prejudice.” (Emphasis added.) The Court has

15              stated that unfair prejudice is “[a]n undue tendency to suggest decision on an

16              improper basis, commonly, though not necessarily, an emotional one.” State v.

17              Banks, 564 S.W.2d 947, 951 (Tenn. 1978); see also State v. McCary, 922 S.W.2d

18              at 515. The medical examiner’s testimony regarding prior injuries to the victim

19              was not particularly graphic or emotional. Rather, the testimony simply recounted

20              in a clinical manner the location of various bruising and scarring on the victim’s

21              body. There was no supposition as to who caused the prior injuries. The Court

22              concludes that the probative value of this evidence was not substantially

23              outweighed by the danger of unfair prejudice as required for exclusion under Rule

24              403, and, therefore, that the trial judge did not abuse his discretion in allowing its

25              admission.

26


            5
              “ Although relevant, evidence may be excluded if its probative value is substantially
     outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or
     by considerations of undue delay, waste of time, or needless presentation of cumulative
     evidence.” Tenn. R. Evid. 403.




                                                          -10-
 1                        The remaining issues concern the admissibility of the testimony

 2          about the injury to the victim’s fingers in 1993 and the testimony regarding injuries

 3          to his head. Because, on the evidence, the defendant could be identified as the

 4          person responsible for these injuries, admissibility of the evidence is governed by

 5          Rule 404(b). First, the evidence that the defendant was responsible for the hand

 6          and head injuries must be clear and convincing as required under Rule 404(b)

7           analysis. See State v. McCary, 922 S.W.2d at 514; State v. Parton, 694 S.W.2d

 8          at 303. Then, two issues must be determined: whether there was a material

 9          issue, other than conduct conforming with a character trait, to which evidence of

10          the injury to the victim’s fingers was relevant; and, if so, whether the probative

11          value of the evidence outweighed the danger of unfair prejudice. Id. The test for

12          relevance under Rule 401, that the evidence tends to prove a material issue, is

13          the same under Rule 404(b). However, the test in Rule 404(b) for balancing

14          probative value against prejudicial effect differs from that established in Rule 403.

15          To be excluded under Rule 403, the danger of unfair prejudice must “substantially

16          outweigh” the probative value. Under Rule 404(b), however, the danger of unfair

17          prejudice must simply “outweigh” the probative value. The restrictive approach of

18          Rule 404(b) recognizes that evidence of other crimes, wrongs or acts carries a

19          significant danger of unfair prejudice. Tennessee Law of Evidence, § 404.7 at

20          172.

21

22                        The evidence of the injury to the victim’s hand in 1993 and that he

23          was struck on the head by the defendant was relevant to two closely related

24          material issues: intent and absence of accident. The statutes defining the

25          offense require proof that the act of abuse was committed “knowingly” and not by

26          “accidental means.”6 Since the defendant claimed the injury was accidental and,

27          apparently in the alternative, if the injury was inflicted intentionally it could have


        6
        Intent and absence of accident are closely related factual issues. Tennessee Law of
 Evidence, §§ 404.9, 404.10.




                                                       -11-
 1   been done by others, proof that he was responsible for the prior injuries was

 2   highly probative of both his intent to harm the child and also that the fatal injury

 3   was not accidental.

 4

 5                 The evidence, though probative of intent and lack of accident,

6    undoubtedly was prejudicial. But the issue is whether the evidence was unfairly

 7   prejudicial. The evidence was highly relevant to material issues, it did not

 8   introduce any extraneous issues and it did not cause the jury to decide the case

9    on an improper basis. Cf. Woodson v. Porter Brown Limestone Co., 916 S.W.2d

10   896, 907-908 (Tenn. 1996). On this record, the prejudice was not unfair.

11   Therefore, the Court concludes that the probative value of the evidence was not

12   outweighed by the danger of unfair prejudice. Accordingly, the evidence was

13   properly admitted.

14

15                                              V

16

17                 One additional matter should be mentioned. Where the evidence of

18   other crimes, wrongs, and acts may reflect upon the character of the accused, the

19   procedure set forth in Rule 404(b) should be followed, even though the evidence

20   is offered to prove a material fact not necessarily related directly to the accused.

21   If, after hearing the evidence, the trial court finds that the evidence does not

22   implicate the accused, the weighing of probative value against unfair prejudice will

23   be made pursuant to Rule 403. If the court finds that the evidence reflects upon

24   the character of the accused, the weighing will be made pursuant to Rule 404(b).

25

26                                             VI

27

28                 The judgment of the Court of Criminal Appeals affirming the

29   defendant's conviction and sentence is affirmed.




                                              -12-
1                Costs are taxed against the defendant.

2

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




                                          -13-
