         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                           AT JACKSON
                             Assigned on Briefs January 10, 2001

                STATE OF TENNESSEE v. MICHAEL P. MALLEY

                   Direct Appeal from the Criminal Court for Shelby County
                           No. 97-11135    W. Otis Higgs, Jr., Judge



                   No. M2000-00041-CCA-R3-CD - Filed February 23, 2001


The defendant was convicted by a Shelby County jury of assault, a Class A misdemeanor. He was
sentenced to the maximum term of eleven months and twenty-nine days, to be served as a split
sentence with five months and twenty-nine days served in confinement at the workhouse, and the
balance served on probation. In this appeal as of right, the defendant asserts that the trial court erred
in allowing the victim, his former wife, to testify as to two other bad acts committed by the
defendant, one a prior beating incident and the other an act of vandalism of the victim’s car. Having
reviewed the entire record, we conclude that the trial court did not abuse its discretion in allowing
the testimony. Judgment of the trial court is affirmed.

     Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Criminal Court Affirmed

ALAN E. GLENN, J., delivered the opinion of the court, in which DAVID G. HAYES and JOE G. RILEY,
JJ., joined.

Ivan D. Harris, Jr., Collierville, Tennessee, for the appellant, Michael P. Malley.

Paul G. Summers, Attorney General and Reporter; J. Ross Dyer, Assistant Attorney General;
William L. Gibbons, District Attorney General; and Camille N. McMullen, Assistant District
Attorney General, for the appellee, State of Tennessee.

                                               OPINION

        The defendant, Michael P. Malley, was convicted by a Shelby County jury of assault, a Class
A misdemeanor. He was sentenced to the maximum term of eleven months and twenty-nine days,
to be served as a split sentence with five months and twenty-nine days served in confinement at the
workhouse, and the balance served on probation. A fine of $500 was also assessed.

         In this appeal as of right, the defendant asserts that the trial court erred in allowing the victim
to testify concerning other bad acts committed by the defendant. Having reviewed the entire record,
we conclude that the trial court properly allowed this testimony into evidence.
                                                   FACTS

       The proof shows that on April 11, 1997, at approximately 7:30 p.m., the defendant, Michael
Malley, and a friend, Coy McKaughan, arrived at the Memphis home of Malley’s former wife, Audra
Malley, 1 and the couple’s two children. Ms. Malley and the defendant had married in May of 1989
and divorced in August of 1994. Their children were ages five and seven at the time of the offense.
Apparently, the defendant spent some time in Florida after the divorce and, upon returning to
Memphis in 1995, started living again with Ms. Malley. Their life together can be aptly
characterized as destructive, violent, abusive, and plagued by alcohol and drugs. On the evening in
question, the defendant was late getting home because he had been drinking beer with his friend.
Ms. Malley was angry that the defendant was late because she thought he was taking her out that
evening. Ms. Malley had been drinking vodka and had consumed a substantial amount.

         What started as a yelling match, escalated. The defendant smashed a glass against a wall and
then moved on to assault Ms. Malley, hitting and shoving her. She suffered a sprained wrist, bruises,
and knots on her head as a result of the assault. Part of the episode was inadvertently recorded when
the defendant’s young daughter left the remote telephone receiver in the “on” position after having
tried to reach her aunt. This tape, introduced as evidence, reveals an abusive, domestic altercation
but is not conclusive as to an actual assault.

        After the defendant and McKaughan left the house, Ms. Malley took her children and sought
refuge at the home of a friend. Ms. Malley saw a chiropractor, Dr. Alan James, who testified that
approximately a week after the charged offense, he took X-rays of the victim’s wrist and determined
that there were no fractures to the wrist. Dr. James’s diagnosis at the time was a soft tissue injury
with swelling.

                                                 ANALYSIS

                 Admissibility of Testimony of Other Crimes, Wrongs, or Acts

        The defendant does not dispute his presence at the time of the offense or that he threw the
glass; he argues instead that no assault took place and that Ms. Malley was simply lying. The
defendant suggests that Ms. Malley was so drunk that her injuries were caused by her own stumbling
and falling. As part of the State’s case-in-chief, the victim, Ms. Malley, was allowed to testify
concerning: (1) a prior uncharged assault by the defendant, including photographic evidence of her
injuries; and (2) a prior uncharged act of vandalism committed by the defendant on Ms. Malley’s
car. The defendant contends that the trial court erred in permitting testimony of these prior bad acts.
Specifically, the defendant argues that the testimony was not relevant. Even if relevant, the
defendant argues that the testimony should have been excluded according to the balancing test of


        1
          By the time of the trial in this case, July 1999, Audra Malley had remarried, and her name is now Audra
Bolton. In the interest of clarity a s to the parties, w e will refer to the vic tim as Ms. M alley.

                                                      -2-
Tennessee Rule of Evidence 404(b)(3) because the danger of unfair prejudice to him outweighed any
probative value. The State relies on State v. Smith, 868 S.W.2d 561, 574 (Tenn. 1993), for the
proposition that the evidence was properly admitted as relevant to establish intent in this case by
showing the violent nature of the relationship between the victim and the defendant prior to the
commission of the charged offense, and the defendant’s hostility toward the victim.

       This issue is controlled by Tennessee Rule of Evidence 404(b), which provides as follows:

               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.

Additionally, the trial court, before admitting such evidence, should find clear and convincing
evidence that the prior crime or bad act was committed by the defendant. See State v. Parton, 694
S.W.2d 299, 301 (Tenn. 1985). Where the trial judge has substantially complied with procedural
requirements, the standard of review is abuse of discretion. See State v. Lester Douglas Bell, No.
03C01-9712-CR-00541, 1999 WL 436432 (Tenn. Crim. App. June 29, 1999), perm. app. denied
(Dec. 20, 1999) (citing State v. DuBose, 953 S.W.2d 649, 652 (Tenn. 1997)).

         Generally, Rule 404(b) is one of exclusion, and evidence that an accused has committed some
other crime or bad act independent of that for which he is charged is inadmissible, even though it
may be a crime or act of the same character as that for which he is on trial. See State v. Howell, 868
S.W.2d 238, 254 (Tenn. 1993), cert. denied, 510 U.S. 1215, 114 S. Ct. 1339, 127 L. Ed. 2d 687
(1994). If, however, evidence that a defendant has committed a crime separate from the one for
which he is being tried is relevant to some matter actually in issue in the case on trial, such as the
defendant’s motive, identity, intent, the absence of mistake, opportunity, or as part of a common
scheme or plan, and if its probative value is not outweighed by the danger of an unfair prejudicial
effect, the evidence may be properly admitted. See Bunch v. State, 605 S.W.2d 227, 229-30 (Tenn.


                                                 -3-
1980). The balancing test here is one that tips readily in favor of exclusion since the danger of unfair
prejudicial effect must simply “outweigh” the probative value. Legal authorities support this
restrictive approach “because ‘other act’ evidence carries a significant potential for unfairly
influencing a jury.” Neil P. Cohen et al., Tennessee Law of Evidence § 4.04[8][e] at 4-79 (4th ed.
2000). “Having heard about the ‘other act,’ a jury may be more inclined to find the defendant guilty
of the act charged.” Id. § 4.04[8][a] at 4-77.

       The defendant asserts that the trial court failed to meet the conditions mandated by Rule
404(b) before testimony of other bad acts can be properly admitted.

                                       I. Jury-Out Hearing

        First, the defendant asserts that the trial court failed to hold a jury-out hearing on the
admissibility of 404(b) testimony. Although the defendant did not request a hearing outside the
jury’s presence, the record indicates that the jury was not present when the State and the defendant
argued the issue before the trial court on the first day of trial. The jury was also not present on the
second day of trial when the defendant renewed his objection to the testimony of Ms. Malley and
requested that the trial court state on the record how the conditions that must be satisfied before
testimony of prior bad acts can be properly admitted had been met in this case. We conclude that
a hearing on this issue was conducted out of the presence of the jury.

                                         II. Material Issue

        Second, the defendant asserts that the trial court never determined the relevancy of the
testimony of the victim, that is, what material issue existed, other than the mere fact of the
defendant’s propensity to commit the kind of offense with which he was charged. The trial court
stated on the first day of trial during the hearing out of the presence of the jury that the evidence
being offered by the State established “a pattern of conduct between parties during the course of their
marriage.” Later, on the second day of trial, at the request of the defendant and outside of the
presence of the jury, the following colloquy occurred:

                MR. HARRIS: 404(b) provides that the Court must determine that
                a material issue exists other than the conduct conforming with the
                character trait, and must upon request state on the record the material
                issue.

                THE COURT: Well, the material issue is whether or not he intended
                to do what he did, whether he intended to do those matters as alleged
                in the indictment I’m stating it for the record. That’s the material
                issue, did he intend to do what he did. And I’m admitting this other
                evidence of other crimes to prove intent.
                        I mean, we can go on and on and on with it, but that’s
                basically what I’m doing.


                                                  -4-
               MR. HARRIS: That’s fine.

               THE COURT: I think it’s relevant and I’ll say it again for the record
               it’s relevant under 404(b), it’s evidence of other crimes. And I will
               tell the jury that the defendant is on trial for the matters and things
               alleged in the indictment, and they are not to consider this evidence
               for any other purpose other than the limited - - under the limited
               Charge that I’m giving. . . .
                        I mean the baseball bat incident - - all of these incidents, in
               my judgement, are relevant as these incidents go to the ultimate issue
               of whether or not this gentleman did plan to do what he did, whether
               he intended to do what he did. And for that limited purpose I think
               is relevant, and I think the record adequately reflects my reasoning.

       According to statutory law, a person commits an assault who “intentionally, knowingly or
recklessly causes bodily injury to another.” Tenn. Code Ann. § 39-13-101(a)(1) (1997). Thus, by
proving beyond a reasonable doubt that the defendant acted intentionally, that is, it was the
defendant’s “conscious objective or desire to engage in the conduct or cause the result,” id. § 39-11-
106(a)(18), the State would thereby also establish the lesser culpable mental states of acting
knowingly or recklessly. See id. § 39-11-301(a)(2).

        As early as 1907, our supreme court stated, “[W]e are of the opinion that previous attempts
on the life of a person by the accused may be shown for the purpose of exhibiting the animus or state
of mind of the accused towards the deceased, as indicating hostility, or a settled purpose to harm or
injure that person.” Holder v. State, 119 Tenn. 178, 104 S.W. 225, 234 (1907) (citation omitted)
(determining that evidence that the defendant had put rat poison in his family’s food, including the
victim’s food, on an occasion prior to the shooting of the victim was admissible). Our supreme court
has stated that “evidence of other crimes committed by the accused similar to that charged is relevant
and admissible when it shows or tends to show a particular criminal intent, which is necessary to
constitute the crime charged.” Mays v. State, 145 Tenn. 118, 238 S.W. 1096, 1103 (1921). Cases
following enactment of the Tennessee Rules of Evidence have interpreted Rule 404(b) consistently
with these early cases. In State v. Smith, 868 S.W.2d 561 (Tenn. 1993), the defendant objected to
testimony of two incidences of domestic violence prior to the murder of his wife and her two sons.
Our supreme court determined that the testimony was admissible and noted, “The evidence of these
violent episodes was admitted not to prove the Defendant acted in accord with this character but as
part of the proof establishing his motive for the killings.” Id. at 574. In State v. DuBose, 953
S.W.2d 649 (Tenn. 1997), the issue was the admissibility of testimony concerning injuries sustained
by the sixteen-month-old son of the defendant prior to the fatal injuries. The DuBose court found
the evidence relevant to intent and absence of accident:

               Since the defendant claimed the injury was accidental and, apparently
               in the alternative, if the injury was inflicted intentionally it could have
               been done by others, proof that he was responsible for the prior


                                                  -5-
                injuries was highly probative of both his intent to harm the child and
                also that the fatal injury was not accidental.

Id. at 654.

        In Ingram v. State, 443 S.W.2d 528 (Tenn. Crim. App. 1969), this court determined that
testimony of a witness concerning a prior domestic altercation between the defendant and victim
was admissible. Id. at 530. In Ingram, the defendant had been convicted of second degree murder
of his wife. The testimony to which the defendant objected was that of his deceased wife’s best
friend, who testified that, just one week prior to the killing, she saw the defendant subject his wife
to a beating and heard the defendant threaten his wife with cutting. In so determining, this court
stated that such evidence was relevant to show “‘that the defendant had committed acts of violence
upon the victim shortly before the commission of the crime, or that the defendant had repeatedly
mistreated the victim.’” Id. (quoting 1 Wharton’s Criminal Evidence § 192 (12th ed. 1955)). In
another case predating the Tennessee Rules of Evidence, State v. Glebock 616 S.W.2d 897 (Tenn.
Crim. App.), perm. app. denied (Tenn. 1981), this court determined that evidence of two prior
incidences of abuse of the victim were relevant. Id. at 905-06. The Glebock court stated: “The
relations existing between the victim and the defendant prior to the commission of the crime are
relevant. These relations indicate hostility toward the victim and a settled purpose to harm or injure
her.” Id. More recently, in State v. Larry Gunter, No. 03C01-9605-CC-00183, 1997 WL 798779
(Tenn. Crim App. Dec. 17, 1997), perm. app. denied (Tenn. Sept. 21, 1998), this court concluded
that evidence that the defendant had previously threatened his former girlfriend was relevant to show
the defendant’s intent, motive, and absence of mistake. Id. at *5. Similarly, in State v. Lester
Douglas Bell, No. 03C01-9712-CR-00541, 1999 WL 436432 (Tenn. Crim. App. June 29, 1999),
perm. app. denied (Tenn. Dec. 20, 1999), this court was faced with the issue of the admissibility of
statements from the victim implying that the defendant had abused the victim in the past, including
the statement that the victim “‘knew there would be a fight, verbal or physical.’” Id. at *4-5. This
court concluded that the statements “tend to show, as the state argues in its brief, that the injuries to
the victim were not accidental.” Id. at *5.

        The objectionable testimony here involved two separate prior bad acts. The first occurred
in 1993 on the night before the victim filed for divorce. Ms. Malley testified that “Michael came
back into the home after he had already left – we were separated – and beat me for six hours until
he finally passed out from the drinking. And I woke up to my alarm clock waking me up to go to
work the next morning.” She described the incident as “about six hours of being hit and thrown
against things.” Four photographs taken of her injuries were entered as an exhibit. The second bad
act to which Ms. Malley testified occurred approximately two months after her divorce when the
defendant came to the apartment where she was living with their two children and her sister. Ms.
Malley testified that she saw the defendant “[t]aking a baseball bat and knocking every window and
the top of my new car out.” The police were called as a result of this incident.

        The defendant offered the testimony of Coy McKaughan, to the effect that the defendant
never hit the victim and the testimony of Becky Parker that the victim was “stumbling” drunk, all


                                                  -6-
to support the defendant’s position that he never hit the victim and that her injuries were self-
inflicted. Testimony that the defendant had hit the victim in the past and caused damage to her
property were relevant to show that the defendant intended to harm and frighten the victim on the
night of the offense. In light of the foregoing, we conclude that the trial court properly ruled this
testimony, including the photographic evidence, relevant to the material issue of the defendant’s
intent to assault the victim.2

                                                III. Balancing Test

       As to the final assertion of the defendant, that the trial court failed to properly apply the
balancing test for admissibility of prior bad acts evidence pursuant to Tennessee Rule of Evidence
404(b)(3), we agree that the trial court misstated the test during the first jury-out hearing as being
“does it substantially outweigh—is the prejudicial effect substantially—does it substantially
outweigh the probative value?” This is the test for exclusion of relevant evidence pursuant to
Tennessee Rule of Evidence 403, which states:

                   Exclusion of relevant evidence on grounds of prejudice,
                   confusion, or waste of time. — 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.

This is a far more lenient test for determining admissibility of evidence than that of 404(b)(3) where
the danger of unfair prejudice excludes relevant evidence of prior crimes, wrongs, or acts when
probative value is merely outweighed by the danger of unfair prejudice. In this case, the trial court
clarified the test it was applying when the defendant renewed his 404(b) objection at the beginning
of the second day of trial. At that point, the trial court noted the following:

                   I think whatever the prejudice might be, and I’m saying it again for
                   the record that it is - - the probative value outweighs the particular
                   prejudice because the defense in this case, as I listened to your
                   questioning, you cross examined this lady in an effort to demonstrate
                   that she was at fault, that she caused it, that this defendant did what
                   he did because she caused it.




         2
          As to the photographic evidence, Tennessee courts “follow a policy of liberality in the admission of
photographs in both civil and criminal cases.” State v. Morris , 24 S.W .3d 788 , 810 (T enn. 200 0), cert. denied, ___ U.S.
___, 121 S. Ct. 786 (2001) (citing State v. Banks, 564 S.W.2d 947 , 949 (Tenn. 1978)). The photograp hs introduced here
showed b ruising to the victim ’s arm, leg, and head.

                                                            -7-
        We conclude that the trial court used the proper test for balancing the probative value of the
testimony against its danger of unfair prejudice to the defendant.3 The trial court did not abuse its
discretion in concluding that the probative value outweighed the danger of unfair prejudice, given
the relevance of the evidence to show that the bodily injuries sustained by the victim were caused
by the defendant rather than being accidental.

                                                  CONCLUSION

         Finding no reversible error in the issue presented here, we affirm the judgment of the trial
court.



                                                                 ___________________________________
                                                                 ALAN E. GLENN, JUDGE




         3
          A specific finding that the evidence is “clear and convincing” that the defendant actually committed the other
crimes or bad ac ts was not mad e. Neverthe less, this addition al test, manda ted by State v. Parton, 694 S.W.2d 299, 303
(Tenn. 1985), and adopted by the Tennessee Supreme Court’s Advisory Comm ission on Civ il Proced ure for use with
Rule 404 (b), was me t in this case.

                                                           -8-
