                                                                                       04/27/2017




        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT KNOXVILLE
                             November 15, 2016 Session

               STATE OF TENNESSEE v. RICKY THOMPSON


                  Appeal from the Criminal Court for Knox County
                     No. 104175         G. Scott Green, Judge




                            No. E2015-02464-CCA-R3-CD




D. KELLY THOMAS, JR., J., dissenting.

       I agree with the majority’s discussion of the photographs and subsequent legal
analysis of their admissibility; however, I do not agree that the error in admitting the
surgical photographs was harmless.

        In determining whether non-constitutional errors are harmless, “Tennessee law
places the burden on the defendant who is seeking to invalidate his or her conviction to
demonstrate that the error ‘more probably than not affected the judgment or would result
in prejudice to the judicial process.’” State v. Rodriguez, 254 S.W.3d 361, 372 (Tenn.
2008) (quoting Tenn. R. App. P. 36(b)). “When assessing the impact of a non-
constitutional error, appellate courts must review the record as a whole, considering
properly admitted evidence of the defendant’s guilt.” State v. Curtis Scott Harper, No.
E2014-01077-CCA-R3-CD, 2015 WL 6736747, at *17 (Tenn. Crim. App. Nov. 3, 2015)
(citing Rodriguez, 254 S.W.3d at 372). “The greater the amount of evidence of guilt, the
heavier the burden on the defendant to demonstrate that a non-constitutional error
involving a substantial right more probably than not affect[ed] the outcome of the trial.”
Id.

       Here, as evidenced by the jury verdict, the evidence of guilt against the Defendant
for aggravated assault and robbery was weak. The record clearly establishes that the
victim suffered serious bodily injury; however, there was conflicting evidence regarding
the circumstances of how the victim obtained these injuries. The victim admitted to
being intoxicated on the evening of the incident, and the testimony of Marquita Cruze, a
disinterested witness, directly contradicted the victim’s version of events. The jury was
tasked with weighing evidence from persons of questionable credibility and, apparently,
discounted significant portions of the victim’s testimony in that the Defendant was
acquitted of the robbery charge. But for the gruesome surgical photographs, the jury may
have acquitted the Defendant of both robbery and reckless aggravated assault.
Convicting the Defendant of the lesser-included offense of reckless aggravated assault
does not necessarily mean that the jury’s decision was not improperly influenced. The
surgical photographs were inflammatory and their probative value does not outweigh the
danger of unfair prejudice. Thus, given the weakness of the State’s proof against the
Defendant, it is more probable than not that these photographs affected the jury’s
decision and resulted in prejudice to the judicial process. Respectfully, I would reverse
the conviction.




                                                   ____________________________________

                                                     D. KELLY THOMAS, JR., JUDGE
