                   IN THE SUPREME COURT OF TENNESSEE
                              AT KNOXVILLE
                                    January 7, 2003 Session

                STATE OF TENNESSEE v. DARRYL LEE ELKINS

                  Appeal by Permission from the Court of Criminal Appeals
                            Criminal Court for Sullivan County
                            No. S41,530   R. Jerry Beck, Judge



                      No. E2001-01245-SC-R11-CD - Filed April 29, 2003




JANICE M. HOLDER, J., concurring.

       I concur in the result reached by the majority. However, I am unwilling to join the majority’s
overly broad pronouncement in dicta that "Rule 404(b) would permit the introduction of evidence
of subsequent acts to establish one's intent during a prior act in appropriate cases." Rule 404(b) does
not “permit” the introduction of “other acts” evidence. Rather, it states that such evidence is not
always inadmissible. Rule 404(b) provides that evidence of other crimes, wrongs, or acts may be
admissible for purposes other than to prove the character of a defendant only if certain conditions
are met: (1) the court upon request must hold a hearing outside the jury's presence; (2) the court
must determine that a material issue exists other than conduct conforming with a character trait and
must upon request state on the record the material issue, the ruling, and the reasons for admitting the
evidence; and (3) the court must exclude the evidence if its probative value is outweighed by the
danger of unfair prejudice.




                                               ___________________________________
                                               JANICE M. HOLDER, JUSTICE
