                   IN THE SUPREME COURT OF TENNESSEE

                              AT NASHVILLE



STATE OF TENNESSEE,              )    For Publication
                                 )
     Plaintiff-Appellee,         )    Filed:
                                 )
v.                               )    Williamson County
                                 )
JAMES DUBOSE,                    )    Hon. Henry Denmark Bell, Judge
                                 )
     Defendant-Appellant.        )    No. 01-S-01-9602-CC-00029




                          DISSENTING OPINION
                                                 FILED
                                                 September 29, 1997

                                            Cecil W. Crowson
         The majority concludes that before the narrower test of
                                           Appellate Court Clerk
Tenn. R. Evid. 404(b)1 may be applied to other crime evidence,

there must be proof that the other crime was committed by the

defendant.     With this conclusion I agree.   Our point of difference

is: in the absence of such proof the majority would apply the

broader test of relevancy of Tenn. R. Evid. 4012 and 402.3      Because

I do not agree with the latter application, I respectfully dissent.

     1
         Rule 404 provides:

     (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.
     2
         Rule 401 provides:

     “Relevant evidence” means evidence having any tendency to make
the existence of any fact that is of consequence to the
determination of the action more probable or less probable than it
would be without the evidence.
     3
         Rule 402 provides:

     All relevant evidence is admissible except as provided by the
Constitution of the United States, the Constitution of Tennessee,
these rules, or other rules or laws of general application in the
courts of Tennessee.     Evidence which is not relevant is not
admissible.
            Under the majority’s reasoning, Rule 404(b) does not

apply to the evidence of prior stomach injuries because the stomach

injuries are not explicitly attributable to the defendant. Rather,

the majority finds this evidence relevant to cause of death.              The

child died from a blow to the stomach, which caused internal

bleeding, which led to death.             The fact that scarring in the

stomach cavity magnified the effect of the blow is, at best,

slightly probative of the cause of death.         Nevertheless, the trial

court admitted extremely prejudicial evidence of the prior stomach

injuries.     The medical examiner testified that the child had

“repeated” injury to the stomach, and she testified that the prior

stomach injuries had been caused by a “very significant force.”

One purpose of this testimony was to imply that the defendant

operated the “very significant force.”          Even if that was not the

purpose for admission of the evidence, it was most certainly the

result.     Because this testimony implicates the defendant, it is

evidence of prior acts under Rule 404(b) and should be measured

against the standard provided therein.



            To hold Rule 404(b) inapplicable in this case permits an

“end run” around the general prohibition against prior crime

evidence.     In many instances, the connection between the prior

crime and the defendant is the very reason the prosecution seeks to

introduce the evidence.      If Rule 404(b) were to apply only when the

evidence in question specifically identifies the defendant as the

person responsible, all the prosecution would need to do is be

ambiguous and less forthright.            If evidence that the defendant

previously    struck   the   victim   is    inadmissible   because   it    is



                                      2
propensity evidence, the prosecution need only adduce proof of the

resulting injury, without naming the defendant, and invite the jury

to draw its own conclusions.         This result is not the intent of Rule

401, 402, or 404.



            The   majority    also    found    the   prior   stomach   injuries

relevant because they demonstrate that the injuries were caused

intentionally     and   not   accidentally.          However,   this    finding

contradicts   the   previous    finding       that   the   evidence    does   not

identify the defendant, rendering Rule 404 inapplicable.                 If the

evidence neither identifies nor implicates the defendant, it can

not possibly be probative of the defendant’s intent or lack of

accident.



            The medical examiner also testified about prior injuries

inflicted about the victim’s body other than the stomach injuries.

Because these injuries did not contribute to the victim’s death, I

am at odds with the majority’s conclusion that such evidence was

probative of the cause of death.              Rather, the injuries indicate

that someone had regularly abused the child. The obvious inference

is the defendant was that someone.            This evidence is clearly other

crime evidence that should be governed by Rule 404(b).



            In my view, the admissibility of all testimony regarding

prior injuries is governed by Rule 404(b).             The evidence of prior

injuries tends to show that the fatal injury was inflicted by the

defendant only by showing that he had a propensity to abuse the

child.   Because evidence of these injuries amounted to proof that



                                       3
the defendant acted in conformity with previous conduct, in my

opinion it is irrelevant and inadmissible.



             According to Rule 404(b), “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.”                 Only

in an exceptional case is another crime arguably relevant to an

issue other than the accused’s character.                  Rule 404 advisory

commission comment; State v. Luellen, 867 S.W.2d 736, 740 (Tenn.

Crim. App. 1992).      Such exceptional cases occur when the prior act

is relevant to identity (including motive and common scheme or

plan), intent, and rebuttal of mistake or accident if asserted as

a defense.    Rule 404 advisory commission comment; State v. McCary,

922 S.W.2d 511, 514 (Tenn. 1996).               None of the exceptions are

present in this case.



             First,    the    accident     exception       to   Rule     404(b)’s

exclusionary    rule    is    not   relevant.      Prior    bad   acts    may   be

admissible to disprove accident only if the defendant has asserted

accident as a defense.          Tenn. R. Evid. 404 advisory commission

comments; McCary, 922 S.W.2d at 514.                The defendant has not

asserted accident as a defense because he has not claimed that he

inflicted the fatal injury by accident. The defendant chose not to

testify, but the substance of state and defense witness testimony

reveals his defense:         that he did not inflict the injury at all.

Apparently, the defendant’s theory is that the fatal injury must

have occurred in a manner totally unrelated to the defendant--by



                                       4
someone else’s actions, whether accidental or intentional.                       When

prior acts are admitted to disprove the defendant’s assertion that

he is wholly innocent, the only purpose those prior acts can serve

is to show that since he did it before, he must have done again.

This result is precisely what Rule 404(b) seeks to avoid.



             Second,    identity    is    not    relevant       here.     Like    the

defendant in McCary, the defendant had a close relationship with

the victim. Because the defendant has denied committing all of the

acts charged, the question is not one of the defendant’s identity.

Instead, it is a question of his guilt or innocence.                    See McCary,

922 S.W.2d at 514.       Furthermore, evidence of prior acts should be

admitted to prove identity only when the acts are so similar in

detail as to amount to a signature.             Here, none of the injuries are

similar enough to be the unique signature of one person.



           Third, the defendant’s intent is not an issue.                   Rather,

the question is whether the defendant actually inflicted the

injuries, not whether he intended to do so.                Even if intent were at

issue, the evidence of the prior head and stomach injuries cannot

be   probative     of   intent,   since       there   is   no   showing   that    the

defendant caused those injuries.                Evidence of injuries from an

unknown source cannot be indicative of the defendant’s mental

state.



           Furthermore, even if the evidence of the prior injuries

were relevant to a material issue other than the defendant’s

propensity    to    abuse   the    child,      the    evidence    would   still    be



                                          5
inadmissible.    Before admitting any evidence of prior acts under

Rule 404(b), a trial court must find by clear and convincing

evidence that the defendant committed the other acts.              Tenn. R.

Evid. 404 advisory commission comment; State v. Parton, 694 S.W.2d

299, 303 (Tenn. 1985); Wrather v. State, 179 Tenn. 666, 169 S.W.2d

854, 858 (1943).      In Wrather, the Court held:


                 Obviously, an absolute essential is
                 that (1) a former crime has been
                 committed, and (2) committed by the
                 identical person on trial.      Only
                 thus can identification, or other
                 proof of guilt, of the accused in
                 the pending case be aided by
                 evidence of the independent crime.
                 And     this    limitation      upon
                 admissibility applies equally to all
                 the exceptions to the general rule
                 excluding evidence of other crimes,
                 whether    introduced    to    prove
                 identity, or for any other purpose.




Id. (emphasis added).       In other words, the connection between the

defendant and the prior bad acts must be clear and convincing in

addition to the other requirements of Rule 404(b).



            Here, the evidence that the defendant actually inflicted

the prior injuries is neither clear nor convincing.            The child’s

mother and an emergency room physician testified to a suspicion

that the defendant caused the hand injury.          However, the physician

testified    that     the   smashed       fingers   could   have   occurred

accidentally.       The child’s mother testified that the defendant

consistently denied the accusation of abuse and that she later

believed him.    The only undisputed fact is that the child was in

the care of the defendant when the hand injury occurred. This fact


                                      6
alone is not clear and convincing evidence that the defendant

inflicted the injury.    With respect to the medical examiner’s

testimony about prior injuries to the stomach, head, and other

parts of the child’s body, absolutely no proof was admitted that

attributed those injuries to the defendant.



          As a final note, I find it confusing that the trial court

excluded evidence that the defendant hit the child in the head,

stuck his finger down the child’s throat, and stuck the child with

a pin, while admitting evidence of the smashed fingers.      It would

seem that if the other acts were irrelevant and prejudicial, the

finger-smashing incident was also. Thus, I am unable to understand

how the finger-smashing incident is more probative of intent and

accident than those other acts.



          In conclusion, the testimony of the medical examiner, the

emergency room physician and the child’s mother regarding prior

injuries was unfairly prejudicial to the defendant.     Any minimal

probative value was clearly outweighed by the prejudicial inference

such   evidence   invites.     The    State’s   case   was    largely

circumstantial, with no direct evidence linking the defendant to

the fatal injury. By admitting evidence of the prior injuries, the

trial court allowed the jury to link the defendant to the victim’s

death by an impermissible inference:    that because the defendant

may have caused injuries before, he must have caused the fatal

injury.



                              ____________________________________
                              ADOLPHO A. BIRCH, JR., Justice


                                  7
