                                                                                                   07/06/2020
                   IN THE SUPREME COURT OF TENNESSEE
                              AT NASHVILLE
                                November 19, 2019 Session1

                 STATE OF TENNESSEE v. STEVE M. JARMAN

               Appeal by Permission from the Court of Criminal Appeals
                          Circuit Court for Dickson County
                  No. 2015-CR-585           Larry J. Wallace, Judge
                       ___________________________________

                              No. M2017-01313-SC-R11-CD
                         ___________________________________


Steve M. Jarman (“defendant”) was convicted of voluntary manslaughter for the death of
his girlfriend, Shelly Heath (“victim”). At trial, the State was permitted to introduce
evidence that the defendant allegedly assaulted the victim two years prior to her death, an
act for which he was tried and acquitted. The defendant appealed his conviction, and the
Court of Criminal Appeals reversed based, in part, on the acquitted-act evidence being used
at trial. We accepted the State’s appeal to consider two issues: (1) whether the rule
announced in State v. Holman, 611 S.W.2d 411 (Tenn. 1981), which prohibits the use of
acquitted-act evidence against a defendant at a subsequent trial, should be overruled, and
(2) if so, whether the trial court properly admitted the acquitted-act evidence as a prior bad
act under Tennessee Rule of Evidence 404(b). After a thorough review of the case law in
this area and the record before us on appeal, we expressly overrule our decision in Holman
to the extent that it prohibits the use of acquitted-act evidence against a defendant in a
subsequent trial under all circumstances. Additionally, we hold that it was not an abuse of
discretion for the trial court to admit the acquitted-act evidence, pursuant to Rule 404(b),
under the theory that it was relevant to show the defendant’s intent. We also hold that
additional errors in admitting threats made by the defendant against the victim or the
victim’s sister, not at issue in this appeal, were harmless. For reasons stated herein, we
reverse the Court of Criminal Appeals’ decision and reinstate the defendant’s conviction.

                      Tenn. R. App. P. 11 Appeal by Permission;
                  Judgment of the Court of Criminal Appeals Reversed



       1
         We heard oral argument in Kingsport, Tennessee, as part of the Court’s S.C.A.L.E.S. project.
S.C.A.L.E.S. stands for the Supreme Court Advancing Legal Education for Students.
JEFFREY S. BIVINS, C.J., delivered the opinion of the Court, in which CORNELIA A. CLARK,
SHARON G. LEE, HOLLY KIRBY, and ROGER A. PAGE, JJ., joined.

Herbert H. Slatery III, Attorney General and Reporter; Andrée Blumstein, Solicitor
General; Clark B. Thornton, Senior Assistant Attorney General; Ray Crouch, District
Attorney General; and Carey Thompson and Brooke Orgain, Assistant District Attorneys
General, for the appellant, State of Tennessee.

Olin J. Baker, Charlotte, Tennessee, for the appellee, Steve M. Jarman.


                                                OPINION

                                         I.       BACKGROUND

        The defendant and victim were in a relationship for approximately four years and
lived together in the defendant’s home in Dickson County, Tennessee. In the early morning
hours of April 18, 2015, the defendant called 9-1-1 and told the dispatcher that he needed
assistance because the victim had shot herself. Emergency responders and law
enforcement attempted life-saving measures on the scene but were not successful. The
victim died from a single gunshot wound to the chest. While law enforcement initially
believed the gunshot wound was self-inflicted, the investigation ultimately led to the
defendant being arrested and charged with first-degree murder of the victim. Before trial,
the State gave notice that it intended to introduce evidence of prior bad acts of the
defendant, including an alleged aggravated assault by the defendant against the victim that
occurred in 2013 (“2013 alleged assault”) and evidence that the defendant allegedly
threatened the victim and the victim’s sister on two occasions.2 At the pre-trial hearings
and the jury trial, the following evidence was adduced.

                                        A.      Pre-trial Hearing

        In response to the State’s notice that it intended to introduce evidence of prior bad
acts, the defendant filed a motion in limine seeking to preclude the State “from introducing
any and all prior convictions, alleged bad acts, and / or expunged matters.” The defendant

        2
           The State also sought to introduce evidence that the defendant attempted to cash a check made
out to the victim days after the victim’s death. A full discussion of this issue and recitation of the facts at
trial can be found in the Court of Criminal Appeals’ opinion at State v. Jarman, No. M2017-01313-CCA-
R3-CD, 2018 WL 5885903, *1 (Tenn. Crim. App. Nov. 8, 2018), perm. app. granted (Tenn. Mar. 27, 2019).
                                                    -2-
argued that the State should not be allowed to admit evidence of the 2013 alleged assault
because he was acquitted of the charge. Specifically, the defendant argued that the
acquitted-act evidence should not be allowed because “[o]nce the jury verdict [was] laid
down, that resolved any question of fact[,]” and whether the defendant committed the
assault was “not an issue that you could relitigate.”

       The State argued that it did not seek to introduce the charge or the previous trial into
evidence, rather it sought to present the defendant’s alleged actions and that the couple had
“a history of prior domestic violence” in their relationship. The State explained that the
victim’s brother, Paul Heath, who did not testify at the trial on the 2013 alleged assault,
witnessed the act and would testify to what he observed.

       Additionally, the State argued that under Tennessee Rule of Evidence 404(b),3 the
defendant’s actions during the 2013 alleged assault were relevant to issues of intent and
motive in the present case. The State relied on two cases, State v. Smith, 868 S.W.2d 561
(Tenn. 1993), and State v. Moody, No. W2014-01056-CCA-R3-CD, 2016 WL 1045660,
*1 (Tenn. Crim. App. Mar. 15, 2016), perm. app. denied (Tenn. Aug. 19, 2016), which
both involved murder victims who were previously harmed by the accused through acts of
domestic violence. In both cases, the court permitted evidence of prior acts of domestic
violence, as well as statements made by the victim and other family members regarding
the victim’s fear of the accused, as relevant to show the relationship between the parties

       3
           Tennessee Rule of Evidence 404(b) states:

               (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;

                 (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.

                                                   -3-
and the intent of the accused to harm the victim.4 The State also argued that the evidence
was necessary to rebut the defendant’s claim of suicide or that the gunshot wound was self-
inflicted.

       Prior to taking testimony at this hearing, the trial court compared the 2013 alleged
assault and the 2015 death of the victim, stating:

               [F]or the record . . . the gap in time, [sixteen to seventeen] months, is
        not a real long time considering what -- domestic violence type issues
        because the [c]ourt sees them a lot as a Judge, of course, so that’s not a real
        long time. And the [c]ourt believes that that potential testimony by [Mr.
        Heath] could show motive and intent and believes that the probative value
        would probably be high. Of course, the prejudicial value could also be high
        too.

The court stated that acquitted-act evidence “‘should not be admitted, at least absent clear
and convincing proof that the offender actually committed the other acts.’”5 Ultimately,
the court decided to reserve its ruling on the admissibility of the evidence until it “hear[d]
from the witness [who] allegedly saw the defendant choke the victim.”

       The State called multiple witnesses, starting with Deputy Joseph Calhoun, the
responding officer on December 6, 2013, the night of the 2013 alleged assault. The call
came in to Deputy Calhoun as a “domestic assault in progress,” and when he got close to
the location, he “observed a white female walking in the middle of the road.” He stopped
to speak with her, and “learned that it was [the victim] . . . [and] that she was the one that
called for help.” According to Deputy Calhoun, the victim “appeared to be very upset,”
and he was able to “smell the odor of alcohol coming from her person.” Additionally, “[the


        4
          Of note, neither State v. Moody nor State v. Smith involved admitting evidence of a prior domestic
assault for which the defendant was acquitted, and in both Moody and Smith, there were two to three prior
instances of domestic violence between the victim and defendant. In this case, there is only one instance
of domestic violence.
        5
           The trial court relied on Neil Cohen et al., Tennessee Law of Evidence, § 4.04(8)(f) (LexisNexis
Matthew Bender 6th ed. 2011), which cites to Dowling v. United States, 493 U.S. 342 (1990), State v.
Shropshire, 45 S.W.3d 64 (Tenn. Crim. App. 2000), and State v. Holman, 611 S.W.2d 411 (Tenn. 1981),
for this proposition. In a parenthetical explaining the Holman decision, the authors conclude that the case
left the door open for acquitted-act evidence to potentially be admitted when the acquittal was not based on
insufficient evidence.
                                                   -4-
victim] had stated that she had been assaulted by [the defendant] and that she was walking
to 990 Coaling Road to get away from him.” Deputy Calhoun recalled the victim’s story:

       [H]er and her brother . . . had been in the living room consuming alcohol and
       [the defendant] was in his bed asleep. She said that [the defendant] awoke,
       come [sic] in there and they started verbally arguing. [The defendant] then
       grabbed her by the throat, started choking her, and she said she fell back into
       a recliner at which time her – I believe it was her right arm went through a
       glass window and a door. [The defendant] then put her on the floor and
       proceeded to kick her in her rib area.

       As the victim recounted the story that night, Deputy Calhoun observed injuries
“consistent with a hand around the throat” and “lacerations to her arm.” Additionally,
Deputy Calhoun saw the victim “holding her ribs” as he spoke with her. He called an
ambulance to come to the scene, and the victim went to the emergency room. Based on
the consistencies between the victim’s statements and her physical injuries, Deputy
Calhoun arrested the defendant for aggravated assault.

       On cross-examination, Deputy Calhoun stated that he did not interview the
defendant or any other witnesses that evening. Deputy Calhoun was present at the trial for
the 2013 alleged assault and acknowledged that the victim recanted her statement and
claimed that she was lying the night of December 6th when she told Deputy Calhoun the
defendant assaulted her. Even though Deputy Calhoun heard the victim recant her
statement during the trial, he still believed her December 6, 2013 statement was the truth,
based on the consistencies between her statements and injuries at the time. Deputy Calhoun
admitted that he transcribed the victim’s statement that night and that he may have
paraphrased it but assured the court that “what she told [him] was put in that statement.”
Additionally, he read it back to the victim before she signed it.

        Mr. Heath, the victim’s brother, testified that he was present in the defendant’s
house the night of December 6, 2013. He described that he “seen [sic] [the defendant]
choke [the victim], beat her in the face, and then boot stomp her.” According to Mr. Heath,
the fight started because the defendant gave the victim a fifth of whiskey, and Mr. Heath
and the victim drank it all. When the yelling started, Mr. Heath was out on the porch
making a phone call so he did not observe how the physical altercation began, but he
testified that he saw the defendant “choking her and then he hit her with his fist a few times,
and then he boot stomped her.” He also observed the victim “bleeding pretty bad”
afterward.

                                             -5-
       Aside from the 2013 alleged assault, Mr. Heath acknowledged that he had not
observed any other instances of physical violence between the defendant and victim, but
he did hear the defendant threaten to shoot the victim on at least one occasion. Mr. Heath
could not remember when the threat occurred, but he believed the defendant threatened the
victim at least once while he was living with the couple in 2015, shortly before the victim’s
death. Regardless, Mr. Heath stated that he did not believe that the defendant would really
hurt the victim and that the defendant was just “popping off at the mouth.”

      While Mr. Heath was living with the couple in 2015, the victim told Mr. Heath that
she was going to move out of the house and move in with Mr. Heath to help take care of
him. The court questioned Mr. Heath directly about the victim’s desire to move out of the
defendant’s house.

              COURT: She said that she was going to be moving out?

              HEATH: (nods head)

              COURT: And what was the time –

              HEATH: And to help take care of me.

              COURT: And what was the time frame on that again, was that near
       the time of this incident with the boot stomping?

             HEATH: Yes. It was near the time – I think – now I may be speaking
       out of turn, but I think the night that she got killed, that she told [the
       defendant] that she was going to be moving in with me.

              COURT: Okay

              HEATH: And he knew that I had my house and housing papers.

The court clarified with Mr. Heath that the 2013 alleged assault and the victim’s death
occurred approximately sixteen to seventeen months apart, and Mr. Heath stated he was
aware of that. Mr. Heath also testified that the defendant threatened to “shoot up” the car
of his other sister, Stephanie Jackson, if she came to pick him up from the defendant’s
house when she was helping him look for a place to live.


                                            -6-
        On cross-examination, Mr. Heath confirmed that he has memory problems as a
result of a serious car accident and that he has been charged with more than two domestic
assault charges. Mr. Heath further admitted that he was drinking the night of the 2013
alleged assault, although not heavily due to his diabetes. Mr. Heath said that he was not
with the victim or at the defendant’s house when police arrived that night because he left,
under the mistaken belief that he had a warrant out for his arrest. Additionally, he did not
appear at the trial on the 2013 alleged assault because the court did not have his correct
address to send a subpoena. Mr. Heath also stated that, although the defendant recanted
the threat he made to “shoot up” Ms. Jackson’s car, she still decided to pull onto a nearby
road to pick him up rather than pull in the defendant’s driveway.

       Stephanie Jackson, the victim’s sister, confirmed that, shortly before her death, the
victim was planning to move out of the defendant’s home once she received an insurance
check and in with Mr. Heath. Additionally, Ms. Jackson stated that the defendant
threatened her when she was helping Mr. Heath find a place to live because, she believed,
the defendant knew the victim was going to move out if Mr. Heath found a place to live.
Ms. Jackson also believed she overheard the defendant make another threat to “take care
of both of them,” referring to herself and the victim, just a few hours before the victim was
killed. Ms. Jackson admitted on cross-examination that she was not certain to whom the
statement was directed and that the defendant did not use names when he made the
statement.

       Lastly, Terrenda Duncan, another sister of the victim, testified that the victim stayed
with her for six to eight weeks to heal from the 2013 alleged assault, and she witnessed
bruises and physical injuries on the victim’s body. Ms. Duncan, however, was not present
when the assault occurred.

        At the conclusion of the pre-trial hearing, the trial court determined that Deputy
Calhoun was permitted to testify about the 2013 alleged assault but only “regarding
observations about injuries of the [the victim],” the “reason he was called to the defendant’s
residence on that date, and evidence of the defendant’s acquittal on the resulting charges.”
The court recognized that while the testimony was prejudicial to the defendant, the
probative value of Deputy Calhoun’s statements outweighed the prejudicial effect and the
evidence of what Deputy Calhoun observed was clear and convincing. Therefore, the court
stated that his testimony was admissible under Rule 404(b) to prove the defendant’s motive
and intent.

       The court stated:

                                            -7-
               I don’t know how, you know, you get around [Deputy Calhoun] not
        getting into the fact that he arrested [the defendant] and there was a trial and
        acquittal because the defense is going to need to bring that up for their side,
        I would think, that there was never a conviction, but anyway, we’ll cross that
        when we get to it, I suppose.

        The trial court found that Mr. Heath’s testimony regarding what he observed during
the 2013 alleged assault was “consistent enough” with Deputy Calhoun’s testimony to
determine that the witnesses were referencing the same event. Therefore, Mr. Heath was
permitted to testify regarding “his observations of a scuffle between the defendant and [the
victim] on December 6, 2013,” and how he witnessed the defendant “choking and ‘boot[
]stomping’” the victim. The court determined that Mr. Heath’s testimony was relevant to
the material issues of intent and motive and the probative value was high. Further, the
court held that the prejudicial effect did not outweigh the probative value, and that based
on the testimonies of Deputy Calhoun and Mr. Heath, there was clear and convincing
evidence of the 2013 alleged assault. The trial court also held that Ms. Jackson could testify
about the defendant’s alleged threats against herself and the victim and that the evidence
was admissible under the theory that they were relevant to show the defendant’s intent or
motive. Additionally, the trial court determined that the prejudicial effect of the evidence
of the threats did not outweigh its probative value.

      The defendant did not request a limiting instruction regarding any prior bad act
evidence, including the evidence of the 2013 alleged assault.

                                             B.      Jury Trial

        The State’s proof showed that the defendant called 9-1-1 at 12:36 a.m. on April 18,
20156 and stated that the victim shot herself. Later on the call, he stated that he had “been
asleep” and “[the victim] got up and was . . . pointing the gun at [him,] and the next thing
[he] knew the gun went off.” Multiple law enforcement officers testified that they
recovered one bullet at the scene that appeared to have traveled at a downward angle
through the victim’s body, into the recliner chair she was seated in, through the base of the
wall, and into a cabinet in the next room. According to the officers, based on the trajectory
of the bullet and the type of gun that was used, it was more likely a homicide than a suicide

        6
          Throughout the trial, the State, defense counsel, and witnesses refer to the victim’s death as having
occurred on April 18 or April 19. According to the record, the 9-1-1 call was placed at 12:36 a.m. in the
early morning hours of April 18. For purposes of this opinion, we will refer to April 18 as the day of the
victim’s passing.
                                                    -8-
because it would have been very difficult to fire the gun with one hand at the entrance
wound location.

       Additionally, the State’s proof showed that the defendant made multiple
inconsistent statements regarding the events leading up to the victim’s death. At the scene,
the defendant’s written statement described that he was “[i]n bed. Heard shot. Got up.
Found [the victim] in chair shot in chest.” He also stated that the victim had been drinking
that night and talked about harming herself and that she had a history of depression. On
May 12, 2015, law enforcement took another written statement from the defendant that
read:
               I was asleep in bed alone. I woke by [the victim] made [sic] noise in
       living room. Looked to see, gun missing. Go into living room. Found her
       in the chair with the gun cocked in her lap. She then picked it up and turned
       it towards herself with [sic] pointed at her chest. I tried to take it away from
       her when it went off. Shoot [sic] her in the chest. She held it with both
       hands. I grabbed the gun by the handle to try to take it away. It went off.
       Shoot [sic] her in the chest.

Despite the inconsistencies in the defendant’s statements, law enforcement officers
admitted that the defendant’s theory that he entered the room from behind the victim, saw
her with the firearm, and then “tussle[d]” with her over the gun before it went off was
possible. One law enforcement officer testified that he did not believe there was any
evidence of premeditation on the defendant’s behalf. During direct and cross-examination,
law enforcement and defense counsel used a dummy gun to demonstrate a number of
scenarios that could have resulted in the same downward trajectory and entrance wound,
one as a result of homicide and one as self-inflicted.

        The State’s forensic evidence showed that samples taken from the defendant’s hands
tested positive for gunshot residue, and samples taken from the victim’s body showed that
the gunshot wound was likely a close-range or contact wound. The medical examiner
testified that the victim’s blood alcohol level was .239. Additionally, he determined that
the position of the wound would be an “atypical” point of suicide on the body and the path
of the bullet through the victim’s body made it statistically more likely to be a homicide;
however, the medical examiner determined that the results of the autopsy were
inconclusive as to manner of death.

       Regarding the 2013 alleged assault, the State’s proof consisted of Mr. Heath’s and
Deputy Calhoun’s testimony, both consistent with their pre-trial testimony. Before Mr.
Heath testified, defense counsel renewed his objection on relevance grounds, and the Court
                                           -9-
overruled the objection “on the same grounds that were previously mentioned[]” in the pre-
trial hearing. Defense counsel did not request, and the trial court did not provide, a limiting
instruction to the jury concurrently with the testimony of either witness.

        The victim’s sisters, Ms. Jackson and Ms. Duncan, also testified consistently with
their pre-trial testimony regarding alleged threats made by the defendant, the victim’s state
of mind leading up to her death, and their knowledge of the defendant and victim’s
relationship. On cross examination, defense counsel questioned the victim’s family
members and Deputy Calhoun about the victim recanting her statement from the night of
the 2013 alleged assault. The family members stated that the victim may have lied at trial
out of fear or because she wanted to keep the defendant from going to prison. The family
members admitted that the victim had a drinking problem and mental health issues related
to depression, but they all believed that the victim wanted to get out of the relationship with
the defendant and move out of his home. Ms. Jackson reiterated that she was fearful of the
defendant and believed his threat that he would shoot at her car if she pulled into his
driveway, but she admitted that she did not know if the other threat to “take care of both of
them” was directed at her, the victim, or simply heard out of context.

        While questioning Mr. Heath, Deputy Calhoun, and Ms. Duncan, defense counsel
entered a transcript of the victim’s testimony from the 2013 alleged assault into evidence.
In the transcript, the victim stated: “I told [Deputy Calhoun] that I had broke [sic] my ribs
and that happened when I fell off the porch because of being intoxicated. And out of anger
I think I said some other things.” The trial transcript also showed that the victim testified
that the defendant never punched, kicked, or choked her, and that she was worried on
December 6 that the defendant would kick her out because she was drinking too much.

         In addition, defense counsel alluded to the fact that the jury found the defendant not
guilty of the 2013 alleged assault by saying that “the jury of [twelve]” must have been “a
liar” if what Mr. Heath and Deputy Calhoun are saying happened is true. Defense counsel
also stated that the “jury . . . saw it a little different” when referring to the “story” that the
defendant “boot stomped and choked” the victim. When questioning Ms. Duncan, defense
counsel asked whether Ms. Duncan wanted the court to believe her story and “not what the
jury found” during the 2013 alleged assault trial.

       The State rested and the defendant moved for a judgment of acquittal or, in the
alternative, to dismiss “the first count of premeditated murder and leave[] the jury with the
remaining counts.” The court denied the motion.


                                             - 10 -
       As part of cross-examining the State’s witnesses, the defendant presented proof
from his close friend, Jeff Proctor, and his ex-wife, Connie Jarman. Mr. Proctor, who was
drinking with the defendant and the victim on April 17, 2015, testified that he did not
observe any fighting or bickering between the defendant and the victim and never heard
the defendant make any threats against the victim or her family. Connie Jarman described
the defendant as a “loving husband” and a “quiet, kind of keep to himself kind of person.”
She never experienced any physical violence in their relationship, and she did not know of
any problems or physical violence between the defendant and his second wife who died of
cancer. Ms. Jarman agreed that it would be out of character for the defendant to harm a
woman or the person he was with. On cross-examination, Ms. Jarman stated that she did
not know or have any first-hand knowledge about whether the victim and the defendant
had any problems in their relationship.

       During closing arguments, the State argued that the relationship between the
defendant and the victim was “riddled with control and abuse.” While the State did not
directly address the 2013 alleged assault charge, it did refer to the couple’s “violent past”
and the “cycle of domestic violence” in their relationship. The State posited that the victim
“stayed with him out of fear . . . [or] out of possibly necessity,” but in reality the victim
was abused and wanted to leave the defendant. Relying on the family members’ testimony,
the State argued that there was sufficient evidence to show the victim wanted to leave the
defendant and the defendant intentionally killed the victim.

        Defense counsel emphasized his theory that the victim was holding the gun when it
went off and that everything happened in an instant. He argued that suicide was the “most
plausible explanation” due to the victim’s depression and alcohol or drug consumption. He
further referred to the fact that the State’s own witness admitted that there was no evidence
of premeditation. Moreover, he argued that the defendant never had the “intent to kill” the
victim and that he did not care whether the victim lived with him or not. Lastly, defense
counsel argued that the 2013 alleged assault was just the State concocting a story to get the
jury “to believe something now based on a trial that [the State] lost. [Twelve] people said
it didn’t happen.”

       On rebuttal, the State argued that premeditation and deliberation were shown in the
defendant and victim’s history of violence in their relationship. The State focused on Mr.
Heath’s testimony about how he saw the victim come “flying out the door and [the
defendant] had his hands around her neck.” When the two landed, “[the defendant] got up
and boot stomped her.” The State argued that the deputy who responded in 2013 testified
consistently with the victim’s initial statements on the scene and injuries on the night of
the incident, even if the victim changed her story at trial.
                                           - 11 -
       Before the trial court charged the jury, both parties were given time to review the
instructions, and neither party offered an objection. The defendant did not request a
limiting instruction regarding the evidence of the 2013 alleged assault, and the trial court
did not include any limiting instructions on its own. The jury convicted the defendant of
the lesser included offense of voluntary manslaughter. After a hearing, the trial court
sentenced him to five years to be served in the Tennessee Department of Correction. The
defendant’s motion for a new trial was denied, and he appealed his conviction and sentence
to the Court of Criminal Appeals.

                                  C.       Court of Criminal Appeals

       The defendant raised five issues on appeal. Ultimately, the Court of Criminal
Appeals held that “the trial court committed reversible error in admitting evidence of a
prior criminal offense for which the [d]efendant was acquitted and evidence of the
[d]efendant’s prior threats against the victim’s sister.” State v. Jarman, No. M2017-01313-
CCA-R3-CD, 2018 WL 5885903 (Tenn. Crim. App. Nov. 8, 2018), perm. app. granted
(Tenn. Mar. 27, 2019).7 The court reasoned that the prior criminal offense should have
been excluded under this Court’s holding in State v. Holman, 611 S.W.2d 411 (Tenn.
1981), which determined that “‘the effect of the acquittal is to render less than ‘clear and
convincing’ the proffered evidence that the defendant committed the prior crime and the
probative value of such evidence cannot be said to outweigh its prejudicial effect upon the
defendant.’” Id. at *11 (quoting Holman, 611 S.W.2d at 413). Therefore, because the
acquitted-act evidence could not meet the “clear and convincing” standard under Rule
404(b), the evidence should not have been admitted. Id.

       Additionally, the court held that admitting the acquitted-act evidence was not
harmless because “more than a mere inference of the [d]efendant’s prior crime was
admitted. Instead, Mr. Heath testified in detail regarding the alleged assault, and Deputy
Calhoun testified regarding his observations of the victim following the assault and
regarding the victim’s statement, which she later recanted.” Id. at *12. The court reasoned
that because of the “vast amount of highly prejudicial evidence concerning the alleged
assault that was admitted and the circumstantial evidence presented at trial,” this “error
more probably than not affected the outcome of the trial.” Id. (citations omitted).



        7
         Defendant did not raise any issues related to the trial court’s failure to give a limiting instruction
on appeal to the Court of Criminal Appeals.
                                                   - 12 -
        In addition to the acquitted-act evidence, the court also held that it was harmful error
for the trial court to admit the defendant’s alleged threats against Ms. Jackson. Id. at *13.
The court reasoned that “[a]lthough bad acts against a third party can be relevant where
there is a link between such acts and the offense at hand . . . any link between threats against
the victim’s sister and the victim’s death is speculative and too far removed to be relevant.”
Id. (citing State v. Caronna, No. W2013-00845-CCA-R3-CD, 2014 WL 6482800, at *40
(Tenn. Crim. App. Nov. 18, 2014); State v. Bailey, No. W2004-00512-CCA-R3-CD, 2005
WL 1215965, at *6 (Tenn. Crim. App. May 20, 2005)). Despite the second threat Ms.
Jackson referred to, during which the defendant allegedly stated he would take care of
“both of them,” the court held that there was no context given “as to whom the defendant
was referring, and Ms. Jackson herself testified that she did not know the meaning of this
statement.” Id. Therefore, the court concluded that although the error in admitting the
threats “alone may have been harmless, when viewed in conjunction with the erroneous
admission of the prior alleged 2013 assault, the error in admitting these prior threats [was]
not harmless.” Id. The court reversed the trial court’s judgment and granted the defendant
a new trial.

        The State sought permission to appeal to this Court, arguing that we should
reconsider Tennessee’s categorical ban on the use of acquitted-act evidence and overturn
our prior holding in Holman. The State proposes that this Court adopt the majority rule
among jurisdictions that allows for acquitted-act evidence to be admitted under certain
circumstances and that the protections offered in Tennessee Rule of Evidence 404(b) are
sufficient to ensure the defendant is not overly burdened with unreliable and irrelevant
evidence. In addition, the State argues that, if this Court were to adopt a new rule
overruling Holman, the trial court properly admitted the evidence of the defendant’s actions
in the 2013 alleged assault under Rule 404(b). The defendant argues that the Holman rule
is the only fair standard that ensures defendants are not burdened with relitigating issues or
charges when a jury has already determined there was insufficient evidence to convict.
Additionally, the defendant contends that the trial court did not properly follow the
procedures of Rule 404(b) and failed to state the material issue for which the evidence of
the 2013 alleged assault was relevant.

                                      II.     ANALYSIS

       The first issue on appeal—whether Tennessee should continue to apply the rule
from Holman and ban the use of acquitted-act evidence against a defendant in a later trial—
is a question of law, which we review de novo with no presumption of correctness. State
v. Al Mutory, 581 S.W.3d 741, 744 (Tenn. 2019) (citing Colonial Pipeline Co. v. Morgan,
263 S.W.3d 827, 836 (Tenn. 2008)). The second issue on appeal—whether the trial court
                                            - 13 -
erred in admitting the acquitted-act evidence under Rule 404(b)—is reviewed under an
abuse of discretion standard, so long as the trial court “substantially complied with
Tenn[essee] R[ule] [of] Evid[ence] 404(b).” State v. Clark, 452 S.W.3d 268, 287 (Tenn.
2014) (citing State v. Kiser, 284 S.W.3d 227, 288–89 (Tenn. 2009); State v. Dubose, 953
S.W.2d 649, 652 (Tenn. 1997)). An abuse of discretion occurs when the trial court “applies
an incorrect legal standard, reaches an illogical conclusion, bases its decision on a clearly
erroneous assessment of the evidence, or employs reasoning that causes an injustice to the
complaining party.” Id. (citing State v. Banks, 271 S.W.3d 90, 116 (Tenn. 2008)).

                    A.     Acquitted-Act Evidence and State v. Holman

         Evidentiary issues related to character evidence and evidence of a defendant’s
“other crimes, wrongs, or acts” in a criminal trial are frequent topics of pre-trial litigation
and are often the subject of appeal in our appellate courts. Even before the adoption of the
Tennessee Rules of Evidence in 1990, our courts developed a vast amount of case law in
this area, and the general rule emerged that, “in a criminal trial[,] evidence that the
defendant has committed some other crime wholly independent of that for which he is
charged, even though it is a crime of the same character, is usually not admissible because
it is irrelevant.” Bunch v. State, 605 S.W.2d 227, 229 (Tenn. 1980) (emphasis removed)
(citing Mays v. State, 238 S.W. 1096 (Tenn. 1921); Lee v. State, 254 S.W.2d 747 (Tenn.
1953)). Admitting such evidence “often constitutes prejudicial error, requiring the reversal
of a conviction.” Id. (citing Gray v. State, 235 S.W.2d 20 (Tenn. 1950)). However, if the
evidence “is relevant to some matter actually in issue in the case on trial and if its probative
value as evidence of such matter in issue is not outweighed by its prejudicial effect upon
the defendant, then such evidence may be properly admitted.” Id. (emphasis removed).
Our courts have announced several such “relevant issues”—motive, intent, or identity of
the defendant; absence of mistake or accident; or to show a scheme, plan, or ongoing
conspiracy—as acceptable bases for which to admit evidence of a prior bad act of the
defendant. See Collard v. State, 526 S.W.2d 112, 114 (Tenn. 1975); Carroll v. State, 370
S.W.2d 523, 529 (Tenn. 1963). As early as 1950, this Court

       stressed that evidence that the defendant had committed a crime other than
       that on trial was not admissible unless such evidence tended directly to prove
       his guilt of the offense with which he was charged and that to render such
       evidence of another crime relevant to the case on trial, its purpose and its
       effect must be to show more than the mere fact that the defendant is the kind
       of person who would not scruple to commit the kind of offense with which
       he is charged and that probative force could not be accorded to the mere fact

                                            - 14 -
        that the defendant, either prior or subsequent to the commission of the
        offense on trial, had committed another like crime.

Bunch, 605 S.W.2d at 229 (citing Harris v. State, 227 S.W.2d 8 (Tenn. 1950)).

    In 1981, nine years before Tennessee adopted its Rules of Evidence, this Court held in
State v. Holman that “evidence that the defendant committed an alleged crime other than
that for which he is on trial should not be admitted when he has been acquitted of such
alleged other crime.” 611 S.W.2d at 413 (citations omitted). The Holman Court reasoned
that:

        the effect of the acquittal is to render less than “clear and convincing” the
        proffered evidence that the defendant committed the prior crime and the
        probative value of such evidence cannot be said to outweigh its prejudicial
        effect upon the defendant. For such evidence to have any relevance or use
        in the case on trial, the jury would have to infer that, despite the acquittal, the
        defendant nevertheless was guilty of the prior crime. No such inference can
        properly be drawn from an acquittal, particularly from an acquittal based on
        insufficient evidence to sustain a guilty verdict . . . .

Id. Furthermore, the Court stated that allowing acquitted-act evidence to be used against a
defendant in a subsequent trial would require the defendant to “defend himself not only
against the charge at hand but also against inferences that the jury might draw from the
evidence that he committed the prior crime although he has been acquitted of it.” Id. At
the time, the Court recognized that their decision to ban acquitted-act evidence was among
the minority in state jurisdictions. Id.8

        8
          The Holman Court relied on cases from Arizona, Illinois, Kentucky, and the Third Circuit Court
of Appeals to support its reasoning. See United States v. Keller, 624 F.2d 1154 (3d Cir. 1980); State v.
Little, 350 P.2d 756 (Ariz. 1960); People v. Ulrich, 195 N.E.2d 180 (Ill. 1963); Asher v. Commonwealth,
324 S.W.2d 824 (Ky. 1959). Since Holman was decided in 1981, however, all of these jurisdictions have
since revisited the issue of admitting acquitted-act evidence and do allow its use in some limited
circumstances. See, e.g., United States v. Blyden, 964 F.2d 1375, 1379–80 (3d Cir. 1992) (holding that
acquitted-act evidence could not be barred on the basis of collateral estoppel and may be admitted or
excluded under Federal Rules of Evidence 403 and 404(b)); State v. Yonkman, 312 P.3d 1135, 1140 (Ariz.
Ct. App. 2013) (holding that it was not error to admit acquitted-act evidence against a defendant in a
subsequent trial so long as the evidence met evidentiary requirements under Arizona law); People v. Ward,
952 N.E.2d 601, 612 (Ill. 2011) (reversing and remanding for a new trial and directing the trial court that
the defendant was permitted to enter evidence of his acquittal in response to witness testimony about his
acquitted conduct); Leach v. Commonwealth, 571 S.W.3d 550, 556 (Ky. 2019) (citation omitted) (“[T]his
Court has held that even an acquittal does not necessarily bar admission of other bad act evidence.”).
                                                  - 15 -
      The principles from this line of case law culminated in the formation of Tennessee
Rule of Evidence 404, which governs the admissibility of “character evidence generally”
and “other crimes, wrongs, or acts.” Tenn. R. Evid. 404 (Adopted effective Jan. 1, 1990
and amended effective July 1, 2003 and July 1, 2009). The development of section (b) to
Rule 404 is attributed to our holding in State v. Parton, 694 S.W.2d 299 (Tenn. 1985),
which set out procedural requirements for the trial court when analyzing “other crimes,
wrongs, or acts” of the defendant. See Tenn. R. Evid. 404(b) & cmt. 1991.

        The Parton Court stated that if the evidence is relevant and admissible for some
purpose other than proving action in conformity with a character trait, such as motive or
intent, then the trial judge should conduct a hearing outside the presence of the jury to
“determin[e] whether or not the proof of commission of the prior crime and defendant’s
connection therewith” meets a clear and convincing standard. Parton, 694 S.W.2d at 303
(citing Wrather v. State, 169 S.W.2d 854 (Tenn. 1943)). If so, the judge should weigh
“whether or not [the evidence’s] prejudicial effect outweigh[s] its probative value.” Id.
(citing Bunch v. State, 605 S.W.2d 227 (Tenn. 1980)). Rule 404(b) currently states:

             (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;

             (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) (2019).
                                         - 16 -
        In this case, the State asks us to review the admissibility of a specific form of “other
act” evidence: acquitted-act evidence, meaning evidence pertaining to an act for which the
defendant was tried and acquitted. We conclude that it is the appropriate time to revisit
this issue as Tennessee has remained in the minority of jurisdictions on the matter since
deciding Holman,9 and the facts of this case squarely present the issue for consideration.
See State v. Little, 402 S.W.3d 202, 214 (Tenn. 2013) (recognizing “that the holding in
Holman represent[ed] a minority rule among the states” but chosing “not to revisit Holman
until the issue [wa]s squarely before [the Court]”); State v. Bigoms, No. E2015-02475-
CCA-R3-CD, 2017 WL 2562176, at *23 (Tenn. Crim. App. June 7, 2017); see also State
v. Shropshire, 45 S.W.3d 64 (Tenn. Crim. App. 2000).

        Since 1981, the Court has extended the Holman rule to prohibit the State from
introducing evidence of the acquittals of two witnesses offered to rebut a defendant’s
theory that the two witnesses were the actual perpetrators of the crime. State v. Turner,
352 S.W.3d 425, 430 (Tenn. 2011). Our courts have declined to extend the rule in the
context of sentencing, holding that the same concerns regarding acquitted-act evidence
being used in a jury trial do not “apply equally to a sentencing hearing conducted by a trial
court.” State v. Desirey, 909 S.W.2d 20, 31 (Tenn. Crim. App. 1995) (citations omitted)
(stating that “[a]n acquittal is normally not considered for evidentiary purposes to equate
with factual innocence, only with the existence of reasonable doubt”; therefore, “an
acquittal is not viewed to negate the possibility that criminal involvement may be shown
to have existed by a preponderance of the evidence”).

      More recently, in State v. Little, we declined to extend the rule after a defendant
was granted a “partial acquittal” at trial on three charges that were being tried jointly. 402
S.W.3d at 212–14. The defendant advocated to apply the rule from Holman and exclude
        9
           Aside from Tennessee, Florida, Minnesota, Nevada, and North Carolina are jurisdictions that
consider it error to admit acquitted-act evidence at a subsequent trial. See, e.g., State v. Perkins, 349 So.
2d 161, 163–64 (Fla. 1977) (“[W]e hold that evidence of crimes for which a defendant has been acquitted
is not admissible in a subsequent trial.”); State v. Wakefield, 278 N.W.2d 307, 309 (Minn. 1979) (“[W]e
conclude that under no circumstances is evidence of a crime other than that for which a defendant is on trial
admissible when the defendant has been acquitted of that other offense.”); McMichael v. State, 638 P.2d
402, 403 (Nev. 1982) (“Although we do not hold that the introduction of such evidence violates the double
jeopardy clause of the fifth amendment, we do hold that the considerations of fair play underlying the
double jeopardy principle militate strongly against the evidence’s admissibility.”) (footnote omitted); State
v. Scott, 413 S.E.2d 787, 790 (N.C. 1992) (holding that, aside from one narrow exception, the prosecution
is not permitted to admit evidence of a defendant’s prior bad act for which he was acquitted at previous
trial).

                                                  - 17 -
the conduct related to the acquitted charges, or, in the alternative, apply a rule from Rhode
Island that requires the judge to inform the jury of the acquittals. Little, 402 S.W.3d at
213–14 (citing State v. Andujar, 899 A.2d 1209, 1219–22 (R.I. 2006); State v. Bernier, 491
A.2d 1000, 1005–06 (R.I. 1985)). At the time, we declined to revisit Holman or adopt
Rhode Island’s alternative rule on the basis that the facts of Little and Holman were
distinguishable and presented two separate issues. In Little, the defendant was tried jointly
for three charges and acquitted of two charges at the same trial. In Holman, the defendant
was tried for one offense, acquitted of that offense and charged for a second, separate
offense in which the State attempted to introduce the conduct related to the acquittal in the
first trial as evidence in the second trial.

       Unlike Little, the facts of this case align to those faced in Holman: the defendant’s
conduct during a previous trial on a charge for which he was acquitted—the 2013 alleged
assault—was subsequently introduced at a separate, subsequent trial on a different
charge—murder of the victim.

      The United States Supreme Court first addressed the issue of using acquitted-act
evidence in a subsequent trial, starting in Ashe v. Swenson, 397 U.S. 436 (1970), in which
the Court determined that:

       [w]here a previous judgment of acquittal was based upon a general verdict,
       as is usually the case, this approach requires a court to examine the record of
       a prior proceeding, taking into account the pleadings, evidence, charge, and
       other relevant matter, and conclude whether a rational jury could have
       grounded its verdict upon an issue other than that which the defendant seeks
       to foreclose from consideration.

Ashe, 397 U.S. at 444 (internal quotation marks omitted). The Ashe Court held that
collateral estoppel, “the principle that bars relitigation between the same parties of issues
actually determined at a previous trial,” was “a part of the Fifth Amendment’s guarantee
against double jeopardy.” Id. at 442.

        Twenty years later, in Dowling v. United States, 493 U.S. 342 (1990), the Supreme
Court held it would not “extend Ashe[ ] and the collateral-estoppel component of the
Double Jeopardy Clause to exclude in all circumstances . . . relevant and probative
evidence that is otherwise admissible under the Rules of Evidence simply because it relates
to alleged criminal conduct for which a defendant has been acquitted.” Dowling, 493 U.S.
at 348 (emphasis added). The Court reasoned that this holding was “consistent with other
cases where [it] ha[d] held that an acquittal in a criminal case does not preclude the
                                           - 18 -
Government from relitigating an issue when it is presented in a subsequent action governed
by a lower standard of proof.” Id. at 349 (citing United States v. One Assortment of 89
Firearms, 465 U.S. 354 (1984)). The Court also held that the introduction and use of
acquitted-act evidence does not inherently violate principles of fundamental fairness under
the Due Process Clause of the Fifth Amendment of the United States Constitution;
therefore, it was acceptable “to deal with the potential for abuse through non[-
]constitutional sources like the Federal Rules of Evidence.” Id. at 352.

        The Dowling Court also addressed four other important issues. First, the Court
reasoned that acquitted-act evidence is not inherently unreliable because “the jury . . .
remain[s] free to assess the truthfulness and the significance of [the acquitted-act
testimony], and [the defendant] ha[s] the opportunity to refute it.” Id. at 353. Second,
there is no unacceptable risk of conviction based on inferences drawn from the acquitted
conduct because of “the trial court’s authority to exclude potentially prejudicial evidence”
under the Rules of Evidence. Id. Third, the Court determined that there was no issue with
potentially inconsistent jury verdicts because, due to the trial court’s review of the record
in the prior proceeding, “the jury’s verdict in [the] second trial [does] not entail any
judgment with respect to offenses charged in [the] first.” Id. Regardless, the Court stated,
“inconsistent [jury] verdicts are constitutionally tolerable.” Id. at 353–54 (citing Standefer
v. United States, 447 U.S. 10, 25 (1980)). Fourth, the Court reasoned that because it
believed the Double Jeopardy Clause provides sufficient protections to defendants from
having “to defend against the same accusation in a subsequent proceeding,” it was not
necessary to extend additional constitutional protections in this context. Id. at 354.

       State and federal jurisdictions vary in their interpretation and implementation of
these principles. See Little, 402 S.W.3d at 214, n.7 (citation omitted). We are aware that
some states and federal jurisdictions apply a collateral estoppel test following Ashe that
precludes acquitted-act evidence from being used in a later trial if the defendant is able to
show “that the issue he seeks to foreclose from litigation in the present prosecution was
necessarily decided in his favor by the prior verdict.” United States v. Cala, 521 F.2d 605,
608 (2d Cir. 1975). This analysis requires the trial court to examine the record of the prior
proceedings to determine “whether a ‘rational jury’ could have acquitted [the defendant]
in the first trial for similar, non-preclusive reasons.” United States v. Zemlyansky, 908
F.3d 1, 12 (2d Cir. 2018) (citing Ashe, 397 U.S. at 444). See United States v. Rigas, 605
F.3d 194, 218 (3d Cir. 2010) (affirming the application of the procedure in Ashe requiring
the examination of the trial court record from the previous proceeding); United States v.
DeVincent, 632 F.2d 147, 154 (1st Cir. 1980) (citing to the procedure from Ashe when
describing the court’s analysis of the collateral estoppel issue).

                                           - 19 -
       On the other hand, the majority of state jurisdictions hold that:

       otherwise relevant and admissible evidence of another offense is not
       rendered inadmissible by the fact of the defendant’s previous acquittal of that
       other offense, except to the extent that the acquittal may be a factor to be
       weighed in the discretionary balancing by the trial judge of the probative
       value of the evidence against its unfairly prejudicial effect, and in
       determining the threshold question of whether the evidence is sufficiently
       convincing to warrant its admission.

Christopher Bello, Annotation, Admissibility of Evidence as to Other Offense as Affected
by Defendant’s Acquittal of That Offense, 25 A.L.R. 4th 939, § 2[a] (1993, Supp. 2008)
[hereinafter Admissibility of Evidence as to Other Offense]. The states that apply the
majority rule generally do so using the procedures or standard for admitting prior bad acts
by the defendant in the state’s rules of evidence and require trial judges to determine
whether the acquitted-act evidence is relevant to a material issue other than the defendant’s
propensity to commit the charged crime and whether the prejudicial effect of the evidence
outweighs its probative value. See, e.g., Kinney v. People, 187 P.3d 548, 554 (Colo. 2008)
(“Prior act evidence can be admitted even though the defendant was acquitted of the
criminal charges arising out of the act, provided that the trial court is satisfied by a
preponderance of the evidence . . . that the prior act occurred and the evidence otherwise
complies with the four-prong test for admissibility under [Colorado evidence laws].”);
State v. Atkins, 819 S.E.2d 28, 33–36 (Ga. 2018) (holding that the Georgia Rules of
Evidence and procedures therein govern the admissibility of other acts evidence, and that
the “collateral estoppel test” and “the Double Jeopardy Clause bar a second trial only
where, to convict the defendant, the second jury would have to reach a conclusion ‘directly
contrary’ to that reached by the first jury”); Commonwealth v. Woods, 607 N.E.2d 1024,
1031–32 (Mass. 1993) (holding that the collateral estoppel doctrine only “applies to factual
issues, not evidence[,]” and so long as factual issues have not been precluded under the
doctrine, the rules of evidence and relevancy govern the admissibility of other acts); State
v. J.M., Jr., 137 A.3d 490, 499 (N.J. 2016) (citation omitted) (holding that “acquitted-act
evidence may only be admitted after a vigorous . . . analysis” under New Jersey evidence
law and that “the fact that a defendant was acquitted of the prior crime will often weigh
heavily against a finding that the evidence of that crime is ‘clear and convincing’”).

       Turning to the case at hand, the State urges this Court to join the majority and adopt
a standard similar to that announced in New Jersey, which allows acquitted-act evidence
to be admitted at trial after strenuous analysis under a four-part test. See J.M., 137 A.3d at

                                           - 20 -
496–99 (citing State v. Cofield, 605 A.2d 230, 235–36 (N.J. 1992)). New Jersey’s four-
part test requires:

       1) the evidence of the other crime must be admissible as relevant to a
          material issue;
       2) [the evidence] must be similar in kind and reasonably close in time to the
          offense charged;
       3) [t]he evidence of the other crime must be clear and convincing;
       4) [t]he probative value of the evidence must not be outweighed by its
          apparent prejudice.

Id. at 496 (citing Cofield, 605 A.2d at 235). If the party seeking to admit the evidence is
successful in carrying its burden to establish the admissibility of the evidence, and the trial
court determines that the probative value outweighs the prejudicial effect, “the court must
instruct the jury on the limited use of the evidence.” Id. at 496–97 (quoting Cofield, 605
A.2d at 236).

       The State argues that Tennessee’s current categorical ban does not allow the jury to
hear all relevant information and “any special unfairness inherent in the admission of
acquitted-act evidence can be obviated . . .by allowing the defendant to inform the jury of
the acquittal.” Appellant’s Brief at 12–13 (filed Apr. 25, 2019), No. M2017-01313-SC-
R11-CD. The defendant argues that the Holman rule is the only way to ensure that criminal
defendants are not potentially relitigating their guilt or innocence for a crime when another
competent jury has already acquitted them of the act. Relying on Justice Brennan’s dissent
in Dowling, the defendant contends that acquitted-act evidence is overly prejudicial and, if
admitted, places an undue burden on the defendant to avoid conviction a second time by
having to present evidence to rebut the prosecution’s theory that the acquitted conduct
occurred and that the acquitted-act evidence is somehow relevant to the charged crime.
Appellee’s Brief at 13 (filed May 28, 2019), No. M2017-01313-SC-R11-CD (citing
Dowling, 493 U.S. at 362–63 (Brennan, J., dissenting)).

       We agree with the State and are persuaded to join the majority of state jurisdictions.
Similar to New Jersey’s four-part test, Tennessee Rule of Evidence 404(b) provides a
structured framework to analyze acquitted-act evidence that ensures thorough
consideration before admitting any prior act evidence. Rule 404(b) requires trial judges to
conduct a jury-out hearing to examine the evidence, explicitly state on the record the
relevant and material purpose for which the prior bad act is being admitted, and balance
whether, despite the evidence being relevant, the prejudicial effect of the evidence
outweighs the probative value. See Tenn. R. Evid. 404(b). The trial court also must find
                                            - 21 -
that the evidence of the prior bad act is clear and convincing. Id. (“The court must find
proof of the other crime, wrong, or act to be clear and convincing[.]”). While we recognize
that we are asking trial judges to conduct a familiar test, we take this opportunity to
acknowledge a directive given by the New Jersey Supreme Court with regard to the
analysis of acquitted-act evidence specifically:

       [T]here are limited circumstances in which acquitted-act evidence is both
       highly probative and not unduly prejudicial to a defendant, and therefore may
       be admissible. As with all other-crime evidence, acquitted-act evidence may
       only be admitted after a vigorous . . . analysis. With respect to . . . the “clear
       and convincing evidence requirement, . . . the fact that a defendant was
       acquitted of the prior crime will often weigh heavily against a finding that
       the evidence of that crime is “clear and convincing.”

J.M., 137 A.3d at 499 (citation omitted). We reiterate that Rule 404(b) is a rule of
exclusion, and the analysis deserves the utmost scrutiny in order to protect the fairness of
the criminal trial. See State v. Jones, 450 S.W.3d 866, 891 (Tenn. 2014). We are confident
that our trial courts can strike an appropriate balance between ensuring that jurors have all
relevant and admissible information in order to fairly assess the evidence presented and
apply the law to the facts of the case, while also protecting criminal defendants against the
use of irrelevant and overly prejudicial information.

        At this time, we explicitly overrule our prior holding in Holman to the extent that it
can be read to exclude acquitted-act evidence under all circumstances, and we bring
Tennessee in line with the majority of states by holding that evidence of a defendant’s
conduct for which he was acquitted in a previous trial may be introduced in a subsequent
trial on a different charge only after the evidence has met the requirements of Tennessee
Rule of Evidence 404(b). The inquiry, however, does not end there. We now must address
an equally important issue: whether the defendant in all cases is entitled to present evidence
of his or her acquittal to the jury or have the jury instructed by the trial court that he or she
was acquitted of the prior act.

            B.      Proof of the defendant’s acquittal and limiting instructions

       The State suggested in its brief to this Court that “[a]llowing the defendant to inform
the jury of the prior acquittal . . . would reduce the risk of unfair prejudice, which is always
a concern when introducing Rule 404(b) evidence.” Appellant’s Brief at 14 (filed Apr. 25,
2019), No. M2017-01313-SC-R11-CD (citing Hess v. State, 20 P.3d 1121, 1125 (Alaska
2001); Kinney, 187 P.3d at 557; Commonwealth v. Barboza, 921 N.E.2d 117, 120 (Mass.
                                             - 22 -
App. Ct. 2010)). The New Jersey rule, cited in the State’s brief, requires the trial court to
give a limiting instruction for all prior act evidence and, in the case of acquitted conduct,
also requires the trial court, upon request by the defendant, to inform the jury of the
acquittal by separate instruction. See J.M., 137 A.3d at 497; N.J. J.I. Crim. Non 2C
Charges.

       We begin by acknowledging that there are two distinct issues presented here. First
is whether the defendant may elicit proof that he or she was acquitted of the prior charge,
for example, through cross-examination of a witness. Second is a set of separate
instructions given by the trial court that not only limits the purpose for which the evidence
may be considered but also informs jurors that the defendant was acquitted of the prior act.
We believe that both protections could be appropriate or even necessary depending on the
circumstances of the case.

        The majority of state jurisdictions hold that the defendant should be permitted to
elicit some proof of the acquittal if acquitted-act evidence is admitted against him at trial.
10
   See Admissibility of Evidence as to Other Offense, supra, at § 2[a]; see also People v.
Ward, 952 N.E.2d 601, 611 (Ill. 2011) (citation omitted) (holding it was an abuse of
discretion not to admit acquittal evidence “[g]iven the real possibility the jury would
convict defendant based on his alleged prior bad acts alone, [so] barring the acquittal
evidence further enhanced the already high danger of undue prejudice against him”);

        10
           If the jurisdiction follows the minority approach, and only allows acquitted-act evidence after
following the “collateral estoppel” test announced in Ashe, “the uniform rule appears to be that the
defendant is not entitled to prove his acquittal. The logic . . . is simply that the prior verdict is of no
relevance once it has been determined that [the first trial] did not necessarily resolve the contested issue.”
Admissibility of Evidence as to Other Offense, supra, at §2 [a]. See, e.g., United States v. Kerley, 643 F.2d
299, 300 (5th Cir. 1981) (citations omitted) (affirming that acquitted-act evidence was not precluded under
double jeopardy or collateral estoppel and that “evidence of a prior acquittal [was] not relevant because it
does not prove innocence but rather merely indicates that the prior prosecution failed to meets its burden of
proving beyond a reasonable doubt at least one element of the crime”); Prince v. Lockhart, 971 F.2d 118,
122 (8th Cir. 1992) (“There are two primary reasons why a judgment of acquittal is not generally admissible
to rebut inferences that may be drawn from evidence that was the basis of the previous trial. First,
judgments of acquittal are hearsay. Second, judgments of acquittal are not generally relevant . . . because
they do not prove innocence . . . .” (internal citations omitted)). But see Williams v. United States, 77 A.3d
425, 433 (D.C. 2013) (declining to adopt a rule of general inadmissibility of prior acquittal evidence and
reasoning that a case-by-case approach was better suited because “[t]he fact that the government failed to
meet its burden in a previous trial, while bringing its prosecutorial power to bear directly upon proving that
the defendant committed the prior crime, has at least some tendency to prove that the defendant did not do
it”).

                                                   - 23 -
Kinney, 187 P.3d at 558 (reversing and granting a new trial because the state used
acquitted-act evidence and the defendant was not permitted to rebut with evidence of
acquittal); Hess, 20 P.3d at 1127–29 (holding that is was an abuse of discretion not to admit
proof of the defendant’s acquittal because it was relevant and fell under a hearsay exception
and that due to the high risk of unfair prejudice that may result in admitting acquitted-act
evidence, a limiting jury instruction may help to balance the potential confusion of the
jury); but see People v. Bolden, 296 N.W.2d 613, 617 (Mich. Ct. App. 1980) (holding that
it was not error for the trial court to exclude evidence of the defendant’s acquittal because
“[t]he fact that another jury harbored a reasonable doubt as to defendant’s guilt of the other
offense does not negate the substantive value of the testimony to establish identity, scheme,
plan, etc. in the case at bar” and “[t]he issue should not be clouded” by the ultimate verdict
of the first trial). Further, “[n]early all [state] courts have adopted a case-by-case approach
in analyzing requests by the defendant for an acquittal instruction, and appellate courts
have reviewed trial courts’ refusals to give an acquittal instruction for an abuse of
discretion.” Kinney, 187 P.3d at 555 (citation omitted); but see Andujar, 899 A.2d at 1220
(concluding that evidence of the defendant’s acquittal “must be presented to the jury either
by stipulation, by the parties’ testimony, or by an instruction from the trial justice” or it is
a denial of due process) (emphasis removed) (internal quotations and citation omitted)).

       The Colorado Supreme Court in Kinney v. People addressed the issues of
“[w]hether to give an acquittal instruction or permit other evidence of the acquittal” and
decided that “a per se rule either always requiring an instruction or always ruling such
evidence admissible” was inappropriate. 187 P.3d at 557. Instead, Colorado courts make
the decision “on a case-by-case basis,” within the trial court’s discretion. Id. We find the
court’s explanation enlightening:

               Generally, federal circuits have found no abuse of discretion when
       trial courts have not given the requested [acquittal] instruction. See, e.g.,
       United States v. Wells, 347 F.3d 280, 285–86 (8th Cir. 2003); United States
       v. De La Rosa, 171 F.3d 215, 219–20 (5th Cir. 1999); United States v. Smith,
       145 F.3d 458, 462–63 (1st Cir. 1998); United States v. Tirrell, 120 F.3d 670,
       677–78 (7th Cir. 1997). Indeed, some federal circuits have strongly implied
       that the acquittal evidence may never be admissible. See Wells, 347 F.3d at
       285–86; De La Rosa, 171 F.3d at 219–20. Among the reasons given by these
       courts are that 1) the evidence is hearsay because it is being offered for the
       truth of the matter asserted and does not fit into any hearsay exception, 2) it
       is not relevant because it does not prove innocence—just that the government
       failed to prove the defendant guilty beyond a reasonable doubt, and 3) the
       evidence’s prejudicial effect substantially outweighs its probative value
                                            - 24 -
        because the jury may be confused upon learning that a previous jury had
        found the defendant not guilty of the prior acts. See Wells, 347 F.3d at 285–
        86; De La Rosa, 171 F.3d at 219–20; see also Weinstein’s Federal Evidence
        § 803.24[7], 803–138 to –140 (2d ed. 2008).

Id. at 555.

        The Colorado Supreme Court found that generally, state courts, on the other
hand:

        have ruled that fairness requires that an acquittal instruction be given when
        the jury is likely to have learned that the defendant was charged criminally
        for the prior act, noting that Dowling “made a point of saying that the trial
        judge did tell the jury the defendant had been acquitted of the other offenses.”
        See [People v. ]Bedoya, 758 N.E.2d [366,] 381 [(Ill. App. 3d 2001)]; see also
        Philmon[ v. State], 593 S.W.2d [504,] 507 [(Ark. Ct. App. 1980)] (holding
        that it was a reversible error not to instruct the jury of the acquittal when the
        warrant issued in the prior act’s case was mentioned by a witness). Other
        courts have found that the acquittal is relevant because it helps the jury weigh
        the evidence of the prior act and reasonably infer a greater probability of
        factual innocence because the defendant was acquitted. See Hess, 20 P.3d at
        1125; [People v. ]Griffin, 426 P.2d [507,] 511 [(Cal. 1967)]; Hare[ v. State],
        467 N.E.2d [7,] 18 [(Ind. 1984)]; Nolan[ v. State], 131 A.2d [851,] 857–58
        [(Md. Ct. Spec. App. (1957), abrogated on other grounds by State v. Jones,
        216 A.3d 907 (Md. Ct. Spec. App. 2019)]; Bernier, 491 A.2d at 1005–06.

        Regarding the hearsay argument, most states have not even addressed the
        argument, implying that they either have not considered it or have
        determined it to be such a settled issue that it does not merit discussion.
        Among the few states that have considered the issue, they have held that a
        judgment of acquittal should be treated no differently than any other properly
        authenticated official document, which is admissible as an exception to the
        hearsay rule. See Griffin, 426 P.2d at 510–11; accord 5 John H. Wigmore,
        Evidence § 1671(a), 806–13 (Chadbourn rev. 1974); see also C.R.E. 803(8)
        (Colorado’s official records exception); cf. Hess, 20 P.3d at 1126 (holding
        that an acquittal is not hearsay because it is not testimonial, but rather is an
        act to which the law attaches legal significance, and because it is not offered
        to show the defendant is innocent, but rather to challenge the weight of the
        prior act witness’s testimony).
                                             - 25 -
       Courts have also held that the evidence of acquittal has significant probative
       value for the jury in weighing the prior act evidence, and thus its value is not
       substantially outweighed by its prejudicial effect. See Hess, 20 P.3d at 1127–
       29; Griffin, 427 P.2d at 511. Moreover, other courts have rejected the juror
       confusion argument, concluding that the risk of confusion is not so great as
       to prevent the defendant from informing the jury that he was in fact acquitted
       of the underlying offenses. See Walker[ v. State], 921 P.2d [923,] 927–28
       [(Nev. 1996)] (holding that introducing prior act evidence without informing
       the jury of the acquittal “left the jury with the impression that [the defendant]
       had been part of a burglary ring and probably guilty of committing all of the
       crimes mentioned”); [State v. ]Smith, 532 P.2d [9,] 12 [(Or. 1975)].

Id. at 556 (internal parallel citations removed).

        We agree with the Colorado Supreme Court that this decision must be determined
on a case-by-case basis. Trial judges should continue to consider the specific facts of each
case in making decisions regarding the admissibility of evidence, including proof of the
defendant’s acquittal and any issues that may arise related to relevancy, hearsay, and
prejudice. Certainly, like many of our sister courts have found, evidence of the acquittal
may be relevant for the jury to determine the credibility of a witness or weigh the proof at
trial. In some cases, fairness may require that a defendant be able to cross examine a
testifying witness about the result of the previous trial. On the other hand, there also may
be times when the evidence the defendant seeks to elicit is for an improper purpose or
offends some other rule. The trial court is in the best position to assess the party’s evidence
and use its discretion to admit or exclude such evidence when necessary. This is part of
the important role of the trial court as gatekeeper, and the decision should be made based
on the specific facts and circumstances of each case. The trial court’s decision to admit or
exclude evidence of the acquittal will be reviewed under an abuse of discretion standard.
See State v. Davidson, 509 S.W.3d 156, 207 (Tenn. 2016); State v. Gomez, 367 S.W.3d
237, 243 (Tenn. 2012). We do note that, although the trial court retains discretion on the
issue of whether to admit evidence of the acquittal after admission of acquitted-act
evidence, it would be the rare case, indeed, in which a trial court appropriately could
exclude evidence of the acquittal.

       Regarding the second issue, the defendant’s right to an acquittal jury instruction, we
rely on current Tennessee law regarding limiting instructions to guide us. Currently, a
defendant is entitled to a limiting instruction, “restricting the evidence to its proper scope,”
upon request. Tenn. R. Evid. 105 (2019) (“the court upon request shall restrict the evidence
                                            - 26 -
to its proper scope and instruct the jury accordingly” (emphasis added)). In the context of
prior act evidence, our courts have stated that “limiting instructions are critical in
preventing the improper and prejudicial use of proof of other crimes.” State v. Howell,
868 S.W.2d 238, 255 (Tenn. 1993) (citation omitted). Therefore, “[t]o minimize the impact
of other act evidence and to ensure the jury does not misuse it, the trial court should instruct
the jury on the proper use of the evidence.” Neil P. Cohen et al., Tennessee Law of
Evidence, § 4.04(8)(i) (LexisNexis Matthew Bender 6th ed. 2011) (emphasis added) (citing
State v. Fisher, 670 S.W.2d 232 (Tenn. Crim. App. 1983); State v. Gilley, 297 S.W.3d 739,
758 (Tenn. Crim. App. 2008)).

        Tennessee courts have held, however, that, “[a]s a general rule, no assignment of
error based upon omission or inadequacy of the judge’s instructions to the jury will be
considered unless a special request was tendered.” State v. Reece, 637 S.W.2d 858, 861
(Tenn. 1982) (citing Crawford v. State, 273 S.W.2d 689, 693 (Tenn. 1954)); see Laird v.
State, 565 S.W.2d 38, 40 (Tenn. Crim. App. 1978) (holding that the error in failing to give
a limiting instruction “must be laid at the defendant’s feet” when the defendant fails to
request a limiting instruction or object to the omission of the instruction); Howell, 868
S.W.2d at 255–56 (determining that the defendant waived the limiting instruction issue
because he did not request the instruction or object to the omission and that the trial court
did not commit “fundamental error” in failing to give a limiting instruction regarding prior
act evidence because the evidence was relevant to the defendant’s guilt and did not
implicate hearsay rules). Therefore, it is generally not reversible error for a trial court to
omit a limiting instruction if a defendant fails to request one regarding the prior act, and
the issue is ordinarily found to be waived on appeal.

         With these principles in mind, we find it important to remain consistent with
Tennessee’s jurisprudence. Acquitted-act evidence is a form of prior act evidence, and an
instruction either limiting the scope of the acquitted-act evidence to a particular purpose or
informing the jury that the defendant was acquitted of the act must be treated the same.
Therefore, we hold that requiring trial courts to give a limiting instruction or an acquittal
instruction, even absent a request, in all cases in which acquitted-act evidence is introduced
at trial is inappropriate and would be inconsistent with our body of case law regarding prior
act evidence and limiting instructions. We stress that it certainly may be the best practice
to give both a clear limiting instruction in conjunction with an acquittal instruction in most
cases, because, in doing so, the trial court lessens the risk of unfair prejudice and ensures
that jurors properly utilize the acquitted-act evidence in reaching their ultimate conclusion
about the defendant’s guilt or innocence of the charged crime. See Nesbit v. State, 452
S.W.3d 779, 799 (Tenn. 2014).

                                            - 27 -
                              C.     404(b) Prior Act Evidence

       In the Court of Criminal Appeals, the court correctly applied the Holman rule as
binding precedent at the time and held that it was reversible error for the trial court to allow
the evidence related to the 2013 alleged assault to be admitted at trial. As a result, the
intermediate court did not conduct an analysis of Rule 404(b) related to this issue. Because
we now hold that the rule in Holman is no longer good law, and we reverse the Court of
Criminal Appeals decision to the extent that it relies on Holman to find reversible error, we
must address the second issue argued by the parties: whether the trial court properly
admitted the acquitted-act evidence pursuant to Rule 404(b) of the Tennessee Rules of
Evidence.

        Generally, Rule 404(b) directs the court to exclude evidence of “other crimes,
wrong, or acts . . . to prove the character of a person in order to show action in conformity
with the character trait.” Tenn. R. Evid. 404(b). The evidence may be admitted “for other
purposes” when relevant to “issues of identity, intent, continuing scheme or plan, or
rebuttal of accident, mistake, or entrapment.” State v. Elkins, 102 S.W.3d 578, 583 (Tenn.
2003) (citing State v. Elendt, 654 S.W.2d 411, 413–14 (Tenn. Crim. App. 1983) (citation
omitted)); Graybeal v. State, 463 S.W.2d 159, 160 (Tenn. Crim. App. 1970)). However,
this list is not exhaustive. When “a trial court substantially complies with the procedures
set out in Rule 404(b) for evaluating the admissibility of evidence, the court’s decisions
will be given great deference on appeal and will be reversed only if the trial court abused
its discretion.” State v. Dotson, 450 S.W.3d 1, 76–77 (Tenn. 2014) (citing Dubose, 953
S.W.2d at 652).

        In this case, the defendant argues that the trial court did not substantially comply
with subsection 404(b)(2), which states in relevant part that “[t]he 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.” Tenn. R. Evid. 404(b)(2) (2019). The defendant contends that “[t]he trial
court was overwhelmingly vague as to the reason(s) for admitting said evidence, and never
clearly established the relevance to any material issue.” Appellee’s Brief at 16 (filed May
28, 2019), No. M2017-01313-SC-R11-CD. We disagree. During the pre-trial hearing, the
trial judge stated that Deputy Calhoun’s testimony regarding what he saw when he
responded in 2013 to the domestic assault call was relevant to the material issue of “intent
or motive.” The trial judge also found that “the material issue again [was] intent or motive”
with Mr. Heath’s testimony regarding the same 2013 incident.


                                            - 28 -
       In addition to specifying intent or motive as the relevant material issues, the trial
court conducted a jury-out hearing and reserved its ruling until it heard from witnesses with
knowledge of the 2013 alleged assault. After the hearing, the trial court determined that the
evidence of the 2013 alleged assault was clear and convincing and that the probative value
of the evidence outweighed any prejudicial effect. During the jury trial, defense counsel
renewed his objection before Mr. Heath’s testimony on the subject, and the trial court
overruled the objection on the same grounds as stated during the pre-trial hearing.
Therefore, we conclude that the trial court substantially complied with procedures in Rule
404(b). Thus, the trial court’s decision to admit the evidence will not be disturbed absent
an abuse of discretion.

        Tennessee trial courts have been cautioned to take a “restrictive approach” when
admitting Rule 404(b) evidence because of its high potential to unfairly influence a jury
and result in a conviction based on the defendant’s overall bad character or believed
propensity to commit crimes rather than the strength of the evidence pertaining to the
charged offense. Dotson, 450 S.W.3d at 76 (citations omitted). The prejudicial effect of
prior act evidence generally “outweighs ordinary relevance” because of the possibility that
a jury may convict a defendant based on the belief that “a bad person deserves punishment.”
Id. (citing State v. Sexton, 368 S.W.3d 371, 403 (Tenn. 2012)).

       Despite this general rule of exclusion, Tennessee courts have recognized a “line of
cases” that stand for the proposition “that violent acts indicating the relationship between
the victim of a violent crime and the defendant prior to the commission of the offense are
relevant to show defendant’s hostility toward the victim, malice, intent, and a settled
purpose to harm the victim.” State v. Smith, 868 S.W.2d 561, 574 (Tenn. 1993). See also
State v. Gleblock, 616 S.W.2d 897, 905–06 (Tenn. Crim. App. 1981) (citations omitted)
(holding that evidence of the defendant’s prior break-in at the victim’s home and a prior
threatening postcard were both relevant because the acts show the “relations existing
between the victim and the defendant prior to the commission of the crime” and the acts
“indicate[d] hostility toward the victim and a settled purpose to harm or injure her”); 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 appellant’s intent.”).

       The State argues that the evidence of the 2013 alleged assault falls squarely within
the “Smith line of cases” that permit prior acts of violence between the defendant and the
victim to be admitted to show motive or intent and that the defendant’s intent was a material
issue in this case because he was charged with first-degree premeditated murder. Further,
the State argues, the defendant’s theory of the case was that the victim committed suicide,
                                           - 29 -
so the evidence was necessary to rebut that claim. The defendant argues that the trial court
erred because the 2013 alleged assault lacked any connection to “any material issue at trial”
and motive and intent are not necessary to prove the crime of conviction, voluntary
manslaughter. He also argues that the prejudicial effect of the evidence heavily outweighed
its probative value.

       In State v. Gilley, the Court of Criminal Appeals held that it was not an abuse of
discretion for the trial judge to admit evidence of at least six instances of prior violence
between the defendant and the victim. 297 S.W.3d at 758–59.

       Tennessee courts have accepted the use of evidence of a homicide
       defendant’s threats or prior violent acts directed toward the homicide victim
       as a means of allowing the State the opportunity to establish intent. The
       courts theorize that such evidence is probative of the defendant’s mens rea at
       the time of the homicide because it reveals a “settled purpose” to harm the
       victim. Specifically, our [S]upreme [C]ourt has ruled that “[v]iolent acts
       indicating the relationship between the victim of a violent crime and the
       defendant prior to the commission of the offense are relevant to show
       defendant’s hostility toward the victim, malice, intent, and a settled purpose
       to harm the victim.”

Id. at 758 (internal citations omitted). While the facts of Gilley are distinguishable in that
there were approximately six separate instances of prior violence, and, in this case, there is
one prior alleged assault, we do not believe it necessary or wise to draw an arbitrary line
regarding how many instances of prior violence in a relationship are necessary before the
evidence becomes relevant to show the defendant’s animosity toward or intent to harm the
victim. We believe that question is better left to the trial judge when analyzing the 404(b)
factors, as the court did in this case.

       Here, the defendant and the victim were in a close relationship for a number of years
and were living in the same household up until the day she died. Mr. Heath testified that
he watched as the defendant kicked, choked, and “boot stomped” the victim, and Deputy
Calhoun confirmed that the actual markings on the victim’s body supported that story,
despite the victim changing her story on a later date. The trial court acknowledged that the
2013 alleged assault did happen approximately eighteen (18) months prior to the victim’s
death but still found the evidence to be probative of the defendant’s intent or motive during
the time that, according to his own testimony, he tussled with the victim for the gun
immediately before it went off. See Gilley, 297 S.W.3d at 758 (concluding that the “State
was obliged to prove that the killing of the victim was ‘premeditated and intentional’”
                                           - 30 -
under the statute for first-degree murder, and the “evidence of the defendant’s prior violent
behavior toward the victim was probative of the defendant’s intent”). Furthermore, the
State was required to prove the defendant’s intent as an element of the charged crime, first-
degree premeditated murder. See Tenn. Code Ann. § 39-13-202 (2017).

       Therefore, as other Tennessee courts have held, the prior act of violence in the
defendant and victim’s relationship was relevant to the material issue of the defendant’s
intent and state of mind. We hold that it was not error for the trial court to consider the
evidence of the 2013 alleged assault admissible on the issue of intent.11

        Additionally, the trial court concluded that the probative value of this evidence was
not outweighed by the danger of unfair prejudice. In this case, even with the time that had
elapsed between the 2013 alleged assault and the victim’s death, evidence of the 2013
alleged assault was highly probative on the issue of intent. Although we certainly
recognize that this evidence is prejudicial to the defendant, we cannot conclude that the
trial court abused its discretion in finding that the probative value was not outweighed by
the danger of unfair prejudice.

        Having determined that the trial court properly admitted this evidence, this does not
end our inquiry. We now review whether the trial court erred in failing to give a limiting
instruction regarding the proper purpose for which the jury could consider the evidence of
the 2013 alleged assault under the facts of this case. The defendant in this case did not
request such an instruction and did not object to the omission of a limiting instruction
before the jury was charged at the conclusion of the trial. Furthermore, the defendant did
not raise the issue of a limiting instruction in his motion for new trial, on appeal to the
Court of Criminal Appeals, or on appeal to this Court. Under these circumstances, we
deem the issue waived. See Howell, 868 S.W.2d at 255–56 (citing Tenn. R. App. P. 3(e))
(concluding that while limiting instructions are helpful to prevent the misuse of prior act
testimony, the defendant waived the issue “by not requesting a limiting instruction and by
not raising the issue in his motion for a new trial”); State v. Sizemore, No. M2013-01853-
CCA-R3-CD, 2014 WL 5800747, at *7–8 (Tenn. Crim. App. Nov. 7, 2014) (holding that
it was not error for the trial court to fail to instruct the jury on the limited purpose of 404(b)
evidence after the defense attorney read through the jury instructions and did not remind
the trial judge to include the limiting instruction).



        11
           The trial court also admitted the evidence on the issue of motive. Because we hold that it was
not error to admit the evidence under a theory of intent, we will not discuss the separate issue of motive.
                                                  - 31 -
       Additionally, we note that the defendant was specifically told during the pre-trial
hearing that he was able to admit evidence of the acquittal to the jury during trial. After
determining that Deputy Calhoun would be permitted to testify about the 2013 alleged
assault, the trial court stated:

              I don’t know how, you know, you get around [Deputy Calhoun] not
              getting into the fact that he arrested [the defendant] and there was a
              trial and acquittal because the defense is going to need to bring that
              up for their side, I would think, that there was never a conviction
              ....

(Emphasis added).

       During cross-examination of multiple State’s witnesses at trial, the defendant
admitted portions of the victim’s testimony from the trial on the 2013 alleged assault in
which she recanted her statement from the night of December 6, 2013, and testified that
the defendant never assaulted her. Additionally, while not evidence, defense counsel
informed the jury in this case on multiple occasions that a jury did not convict the defendant
of the 2013 alleged assault. During closing argument, the defendant argued that the
evidence of the 2013 alleged assault was “based on a trial that [the State] lost. [Twelve]
people said it didn’t happen.” While it may have been best for the jury to receive
instructions from the trial court informing them that the defendant had been acquitted of
the 2013 alleged assault, the defendant did not request any special instructions and did not
object to the omission of any instructions after reviewing the jury charge. As a result, we
find no error on the part of the trial court given the facts and circumstances of this case.

        In summary, we hold that the trial court did not abuse its discretion in admitting the
acquitted-act evidence for the limited purpose of proving the defendant’s intent to harm the
victim. We also conclude that the trial court did not err in failing to give a limiting
instruction regarding the 2013 alleged assault or in failing to give an acquittal instruction,
given that the defendant was able to present evidence of the victim’s testimony at the
previous trial and jurors were not left to speculate as to the outcome of previous trial. Even
if there was error in failing to instruct the jury, it “‘must be laid at the defendant’s feet.’”
Howell, 868 S.W.2d at 256 (quoting Laird, 565 S.W.2d at 40).

                               D.      Additional evidentiary errors

      We recognize that, in addition to finding reversible error under Holman, the Court
of Criminal Appeals also held that the trial court erred in admitting evidence that the
                                            - 32 -
defendant made threats to the victim and the victim’s sister on two occasions. The Court
of Criminal Appeals determined that “any remote probative value [of the threats was]
greatly outweighed by the high prejudicial effect in this case.” Jarman, 2018 WL 5885903,
at *13. The State did not appeal these rulings. However, having reviewed the entire record,
we conclude that these errors by the trial court, standing alone, are harmless error. The
defendant cannot demonstrate that these errors “more probably than not affected the
outcome of the trial.” State v. Rodriguez, 254 S.W.3d 361, 372 (Tenn. 2008) (citing State
v. Toliver, 117 S.W.3d 216, 231 (Tenn. 2003); State v. Francis, 669 S.W.2d 85, 91 (Tenn.
1984)).

                                    CONCLUSION

       For the foregoing reasons, we reverse the decision of the Court of Criminal Appeals
and reinstate the defendant’s conviction for voluntary manslaughter. We hold that the trial
court properly admitted the evidence of the 2013 alleged assault pursuant to Rule 404(b)
of the Tennessee Rules of Evidence. Additionally, we conclude that the additional
evidentiary errors as to the alleged threats made by the defendant were harmless and do not
require reversal. Because the defendant in this case appears to be indigent, costs of this
appeal are taxed to the State.

                                                   _________________________________
                                                   JEFFREY S. BIVINS, CHIEF JUSTICE




                                          - 33 -
