                                                                                        10/10/2019
        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT NASHVILLE
                                 June 19, 2019 Session

         STATE OF TENNESSEE v. JOSEPH MARQUIS JEFFRIES

                Appeal from the Circuit Court for Williamson County
                  No. II-CR-170365 James G. Martin, III, Judge
                     ___________________________________

                           No. M2018-00625-CCA-R3-CD
                       ___________________________________


A jury convicted the Defendant, Joseph Marquis Jeffries, of two counts of aggravated
assault, two counts of reckless endangerment, domestic assault, interference with
emergency communications, trafficking for a commercial sex act, and promotion of
prostitution. The trial court merged various offenses and imposed an aggregate sentence
of twenty-five years. The Defendant asserts that the trial court erred in not severing the
sexual offenses from the assaultive offenses and that the trial court erred in allowing
evidence of prior bad acts. We conclude that the offenses were properly joined and that
there was no error in the admission of evidence, and we accordingly affirm the
judgments.

  Tenn. R. App. P. 3 Appeal as of Right; Judgments of the Circuit Court Affirmed

JOHN EVERETT WILLIAMS, P.J., delivered the opinion of the court, in which D. KELLY
THOMAS, JR., and ROBERT L. HOLLOWAY, JR., JJ., joined.

Vanessa Pettigrew Bryan, District Public Defender, and J. Gregory Burlison (at trial and
on appeal) and Chelsea Curtis (at trial), Assistant District Public Defenders, and Patrick
T. McNally (on reply brief), for the appellant, Joseph Marquis Jeffries.

Herbert H. Slatery III, Attorney General and Reporter; M. Todd Ridley, Assistant
Attorney General; Kim R. Helper, District Attorney General; and Kelly Lawrence,
Assistant District Attorney General, for the appellee, State of Tennessee.
                                        OPINION

                     FACTUAL AND PROCEDURAL HISTORY

       The Defendant was arrested after he assaulted and choked the pregnant victim,
who was working as a prostitute to support him. The assault left the victim unconscious
and with multiple facial fractures, and the Defendant was charged with various offenses
related to the assault, including attempted second degree murder, aggravated assault by
strangulation, aggravated assault by serious bodily injury, domestic assault, reckless
endangerment of the victim’s fetus, interference with emergency communications, and
evading arrest. When investigators discovered that both the victim and another woman
sharing a hotel room with the Defendant were engaging in prostitution for his benefit, he
was also charged with promoting prostitution and four counts of trafficking for a
commercial sex act, setting out two alternative theories for each victim.

                                    Pretrial Hearing

        The Defendant moved to sever the offenses, contending that the offenses related to
the assault, the sexual offenses for each victim, the offense of promoting prostitution, and
the offense of evading arrest should all be tried separately. At the hearing, the victim
testified regarding her relationship with the Defendant and the circumstances surrounding
the offenses.

        The twenty-two-year-old victim stated that she had been diagnosed with bipolar
disorder, depression, and anxiety in middle school and that her juvenile behavior resulted
in suspensions and ultimately in her removal from her mother’s home to a juvenile
facility. The victim began using marijuana in her early teens, then became addicted to
pain killers and eventually to heroin. The victim had a baby while she was a teenager,
and the victim’s mother cared for the victim’s child but had refused to house the victim.

        The victim began engaging in acts of prostitution to support her drug habit when
she was fifteen. When she met the Defendant, she had been living for a period of months
in a Florida hotel, prostituting herself multiple times a day to support a drug habit that
could consume as much as $800 per day. The victim met the Defendant when he drove
past her and offered to take her to a store, and she ultimately confided in him regarding
her life choices and drug addiction.

        The victim and Defendant moved to Atlanta, and they began to have a sexual and
romantic relationship. The victim stopped using drugs but began to use alcohol. During
this time, the victim continued to work as a prostitute. She testified that she was the sole
source of income for herself and the Defendant. The victim felt the Defendant had “been
                                           -2-
sent by God” because he introduced her to a life where her earnings from prostitution
were spent on entertainment, travel, and grooming rather than drugs. She and the
Defendant traveled to South Carolina, Texas, Colorado, Las Vegas, and New Orleans,
where the Defendant would advertise her as a prostitute online. She acknowledged that
prior to meeting the Defendant, she had posted advertisements for herself on the website
Backpage and that she occasionally still posted them after she and the Defendant were
together, at his direction.

        The victim stated that her relationship with the Defendant gradually turned
physically and mentally abusive. The Defendant kept all of the money she earned, and
the money was no longer spent on travel, entertainment, or the victim’s appearance. The
victim felt she was “walking on eggshells” and that confrontations were her fault. If the
Defendant was in a bad mood, he would force her to strip after acts of prostitution to
make sure she was not hiding money. The Defendant would control when she was
permitted to leave the room for food; he would monitor her calls to family; and she had to
ask him before she could “do anything.” She recalled that one day, she was afraid to ask
him if she could get a drink of tap water. She stated that the Defendant always kept her
identification and debit cards. He also generally kept her telephone, returning it to her
when she was with a client.

        The Defendant had made indirect threats to the victim’s child, warning her, “I
wouldn’t do that[;] remember, I know where your family stays.” The Defendant had also
repeatedly threatened her with a gun, putting the gun to her head. The victim stated that
when the Defendant physically assaulted her, she would try to be quiet, because any noise
would anger him further and because he had threatened to kill her before help could come
if she did call for help.

        The victim had left the Defendant numerous times but always returned because the
he would contact her, because she missed the good times they had had at the beginning of
their relationship, and because she did not have anywhere to go, particularly as he had
control of her money and ID. She testified that she once left him in a public place and
once when they were in custody and released from jail at separate times.

        The Defendant and victim were both arrested in Alabama for having a gun in their
car. The victim testified that she left the Defendant but returned to him because she felt
guilty that his gun charges were still pending while hers had been dismissed and because
she intended to earn money for an attorney for the Defendant through prostitution. The
victim had also recently discovered that she was pregnant and hoped her pregnancy
would change their relationship. The Defendant was concerned about the loss of income
that her pregnancy would entail, and the “only option was bringing in another female.”

                                          -3-
       When the victim returned to the Defendant one to two weeks before the assault,
she discovered that a friend of hers from Florida had begun staying with the Defendant.
She and her friend both engaged in prostitution in Atlanta, with the Defendant posting
online advertisements. The Defendant kept the money and purchased bus tickets to come
to Nashville. After one night in Nashville, the three moved to a hotel in Brentwood, and
the Defendant continued to post advertisements online for the two women to engage in
prostitution.

        The victim testified that there was a “big difference” in the number of clients she
saw compared to the number her friend saw and that her friend received lower offers and
fewer calls because she looked “tom-boyish.” The Defendant wanted the victim to alter
her friend’s appearance to make her more profitable. In particular, the victim’s friend’s
hair was problematic because it was very short.

       On February 14, 2017, the three had bought Valentine’s Day presents and were
drinking alcohol. The victim and her friend each saw one or two clients that day, but
they “were trying to fix the appearance before we continued really even working,” and it
was accordingly “a laid-back day.” The victim testified that the situation “really
escalated” when she could not figure out how to put a hair tie into her friend’s hair, which
was a different texture from her own. While the victim’s friend was in the bathroom, the
Defendant began to hit the victim and eventually choked her until she was unconscious.
The victim woke between the bed and an air vent, and the Defendant continued the
assault. The victim’s friend left the bathroom, and the victim and the Defendant went
into the bathroom, where he assaulted her again. The victim believed the assault was
over, but the Defendant then began to look through the victim’s social media accounts,
and he became angered when he noticed that a friend of his had commented on one of her
photographs. The victim stated that the Defendant began to punch her and raised a bottle
of liquor as though to strike her. She testified that although she was normally quiet
during an assault, she realized that he did not have the gun with him, and she screamed,
“I hate you, get off me, I hate you.” The Defendant responded, “I’m going to kill you,
bitch.” He choked her again until she lost consciousness. When she woke up, she was
face-down in blood. She was able to locate the cord of the hotel telephone under the bed,
and she plugged it into the telephone and summoned help from the front desk.

       The victim acknowledged numerous prior convictions, including theft, possession
of cocaine, possession of paraphernalia, resisting arrest, trespass, fraud, and prostitution.
She also acknowledged she had a juvenile record which included a home invasion. She
agreed that she had lied about her pregnancy after she summoned assistance on the night
of the assault, explaining that she feared she would face repercussions for drinking while
pregnant. She also acknowledged that she may have told law enforcement that the

                                            -4-
Defendant helped her stop abusing drugs, but she stated that she now felt she was
manipulated into thinking so and that she believed she had beaten her addiction herself.

        Regarding severance, the trial court concluded that the crimes in question took
place in close sequence and in the same place. It also concluded that it would be
impossible for the jury to understand the case “without proof of one of these offenses
spilling over into another offense,” in particular because the conflict began with the
victim’s failure to properly groom another prostitute. Finding that the proof was
“inextricably connected,” the court concluded that the offenses should be mandatorily
joined and that severance was not necessary for a fair determination of the issues.

        The Defendant also moved to exclude any evidence of prior crimes or bad acts
under Tennessee Rule of Evidence 404(b). In particular, the Defendant challenged any
testimony about prostituting or assaulting the victim outside the jurisdiction, about prior
arrests, and the victim’s testimony that she returned to him to earn money for an attorney
for a criminal charge.

       The trial court found that the Defendant’s conduct in other states was relevant to
establishing the elements of the charges of trafficking the victim and promoting
prostitution, in particular to whether he attempted to benefit from the commercial sex acts
and whether he recruited, enticed, harbored, or transported, provided, purchased, or
obtained the victim by any other means. The trial court found the evidence of the acts
clear and convincing based on the victim’s testimony, and it concluded that the probative
value was not substantially outweighed by unfair prejudice. The trial court also found the
evidence regarding the gun arrest clear and convincing and relevant to the victim’s
motivation for staying with the Defendant despite the alleged abuse, and it concluded that
the probative value outweighed the prejudicial effect. The trial court offered to give a
limiting instruction.

                                           Trial

       Prior to trial, the State dismissed the two counts of the indictment charging the
Defendant with trafficking the victim’s friend for a commercial sex act. During opening
statements, the prosecutor observed that the victim and Defendant at first would travel for
pleasure but later only for the purpose of engaging in prostitution in different cities. The
State mentioned the Defendant’s possession of a gun in discussing the victim’s decision
to remain with him. The prosecutor also stated that both the Defendant and victim were
taken into custody for the possession of a gun in Alabama and that the victim returned to
the Defendant to help him earn money for an attorney. The defense argued that the
victim had been a willing participant in prostitution and that the jury could infer that she

                                           -5-
had agreed to the suggestion that she was a victim of trafficking in order to avoid any
consequences for her own criminal acts.

       The victim’s testimony at trial was largely consistent with her testimony at the
hearing. She spoke about her upbringing, her mental health issues, her expulsion from
her mother’s home due to drugs, and her reliance on prostitution to support a drug
addiction. She reiterated that her relationship with the Defendant was initially very
positive, that they began a romantic relationship, that she was able to stop using heroin,
and that the money she earned through prostitution was invested in eating out, clothing,
and fixing her hair and nails.

       The victim testified that she and the Defendant traveled to South Carolina, Texas,
Colorado, Ohio, Tennessee, New Orleans, and Las Vegas. The Defendant was
unemployed during the entirety of the time they were together, and all of the money they
used was earned through the victim’s prostitution. She testified that the Defendant kept
her identification, her debit cards, and her telephone. She stated that the Defendant
would post the majority of the online advertisements for her services as a prostitute but
that she also would post advertisements. The Defendant would allow her to keep her
telephone when she was with a client, and she would text the Defendant when the client
was arriving or leaving.

        On cross-examination, the victim denied that the Defendant only held her
valuables to prevent potential theft by a client, and she stated he would only allow her to
use her telephone freely on “good” days. She agreed that she had the ability to call for
help but stated she did not have the courage to do so. She agreed that after a client
impersonated a police officer and handcuffed her at their Nashville hotel, she became
afraid, and she stated that after that, she would call the Defendant and leave the telephone
on for her own safety while she was with a client.

        The victim clarified that she had left the Defendant at times she felt physically
safe, including once in a public area, once when they were separately released from jail,
and once while he was asleep. She testified that when the Defendant would be physically
abusive, he would “put [the gun] to my head with a pillow over my head.” She stated
they were both taken into custody when police found a gun in their car in Alabama and
that she left him when they were released on different dates. The victim, feeling guilty
that her case was resolved and the Defendant’s case was not, returned to the Defendant
because she wanted to help earn money for an attorney and because she found out she
was pregnant.

      The victim testified about the discovery that her friend had joined the Defendant to
supplement their income due to the victim’s pregnancy. The Defendant sent the victim
                                           -6-
text messages indicating that the victim would need to coach her friend to become more
profitable. These text messages were introduced as exhibits. Messages from a telephone
marked as the Defendant’s told the victim, “show her how you rock and she will follow,”
stated that the victim had “a job to do,” and instructed her to conduct herself “in a
man[ner] that they will listen to you.”

       The victim’s friend had short hair, and one of the things the Defendant wanted the
victim to accomplish was to fix her friend’s hair to make it more attractive to clients. The
prosecution introduced several Google searches conducted on the victim’s telephone
regarding hairstyles for African-American women.

       The victim testified largely consistently with her prior testimony regarding the day
of February 14, 2017. The victim stated that the situation began to “really escalate[]”
when she could not figure out how to secure a hair-tie into her friend’s hair, which was a
different texture from hers. Because the Defendant was angry over the victim’s inability
to fix her friend’s hair, he began to look through the victim’s social media accounts,
eventually finding the comment from his friend, which further enraged him. The
Defendant began to hit the victim while the victim’s friend was in the bathroom, and he
choked her until she lost consciousness. They went into the bathroom when the victim’s
friend left it. When the victim’s friend left the hotel room, the Defendant began to hit the
victim again. The victim cried out when she believed he was preparing to hit her with a
liquor bottle and recalled that he did not have the gun with him. The victim testified she
had never called for help before, and the Defendant responded by stating he would kill
her. She testified that the Defendant kicked her in the stomach with his boots although he
knew she was pregnant. She once again lost consciousness after being choked and woke
up in blood on the floor.

       The victim testified about calling the front desk for help and about her injuries.
She identified photographs of herself with marks on her face and neck, a shoe print on
her back, and her eyes swollen shut, and she identified a photograph of wads of hair that
the Defendant had pulled from her head. The victim suffered multiple facial fractures
and testified that she still had dark circles under her eyes as a result of the assault.
Officer Kimberly Lamberson of the Brentwood Police Department described and
photographed the victim’s injuries, including excessive bleeding, swollen eyes, and a
busted lip. She stated that the victim did not appear intoxicated. Officer Lamberson
could not locate the victim’s telephone, identification, or money in the room.

      The victim acknowledged that she did not initially tell police that she was
engaging in prostitution, and she acknowledged that she told medical personnel that she
was not aware of being pregnant. She explained that she feared reprisal for drinking

                                           -7-
alcohol while pregnant. She acknowledged her pregnancy and the fact that she was a
prostitute to Detective Breedlove when he interviewed her at the hospital.

       The victim agreed that she had posted her own advertisements online for
prostitution prior to meeting the Defendant, and she acknowledged her juvenile criminal
history. She stated that she was able to communicate with friends and family and that she
had accounts on social media. She acknowledged that she had posted two pictures on
social media which showed her with the Defendant and in which she appeared happy. In
one post, she stated he was her “favorite man in th[e] world.”

       The victim also acknowledged that she had left the Defendant “maybe three” times
between the time they were arrested for having the gun in the car and the time of the
assault. She agreed that she had gone back to Florida and that they were only in contact
through telephone and social media. She stated she suffered a “constant paranoia” when
the phone rang or she saw his name. She agreed that she returned and attended his
grandmother’s funeral in December or January and that she used his mother’s mailing
address while there.

       The victim agreed that she had relapsed and had used drugs when she was in
Florida but denied that she left the Defendant because of the urge to use heroin. She
acknowledged having taken an ecstasy pill the day before the assault and having
consumed approximately five shots of tequila that afternoon. She admitted that she lied
when she told medical personnel she only took two shots. She denied having smoked
marijuana and explained that medical testing revealed it in her blood because she was
“around it.” She agreed that her medical records also reflected the presence of
methamphetamine in her system. She stated that she told medical personnel that the
Defendant had threatened to harm her child, and she explained that while he did not make
an explicit threat, he had repeatedly reminded her he knew where she lived, referring to
the home where her child stayed.

        The victim acknowledged that she had been arrested for possession of cocaine
after the assault. She explained that a police officer at a bus station observed her buy
cigarettes and asked to search her possessions. She stated that a bag with cocaine residue
was found, that she was not aware it was in her possession, and that she would have
refused consent to search if she had been aware of the presence of drugs. The victim
testified she was currently sober and in a recovery program, that she was living with her
mother and caring for her children, and that she was undergoing periodic drug screenings
as part of her probation and had passed all of them.

       When Officer Lamberson responded to the victim’s hotel room, the victim told
Officer Lamberson that the Defendant had assaulted her. The victim described the
                                          -8-
clothing of her friend, who had apparently left with the Defendant, and the clothing the
Defendant was wearing. Officer Lamberson recalled having recently seen two people
matching the victim’s description walking down the road.

       Officer Christopher Maga received a radio description of the Defendant and the
victim’s friend, including their clothing. He saw two people matching the description
near a building, and he made a U-turn and pulled into one entrance to the parking lot by
the building with his emergency lights on. The suspects ran south from his vehicle, and
when another police vehicle pulled into the lot from the south entrance, the Defendant
turned around and ran back north toward Officer Maga. The Defendant was instructed to
stop but kept running and attempted to go around Officer Maga. He struggled as he was
taken into custody.

       The Defendant had two telephones and various identification cards, including one
belonging to a woman. The Defendant was asked about blood on his shirt and stated that
the blood stains were old. Officer Lamberson collected the Defendant’s shirt and his
socks, which also bore traces of blood.

         Detective Adrian Breedlove of the Brentwood Police Department stated that he
had specialized training that involved investigating prostitution and human trafficking
and that in performing his duties, he routinely looked at Backpage, a website of classified
advertisements that frequently contained advertisements for prostitution. He determined
that the website contained advertisements offering the victim and her friend for the
purposes of prostitution in Brentwood. He subpoenaed the website’s records regarding
the postings for the victim and her friend and the records, which were introduced into at
trial, reveal that the advertisements were created from the same IP address within minutes
of each other on February 12, 2017. Detective Breedlove testified that the website would
allow an advertisement to be displayed more prominently near the top of the page if the
user paid to “bump” it, and the advertisements for the victim and her friend had both been
“bumped” on February 13th and 14th.

        Detective Breedlove conducted the search of the victim’s telephone which led to
the retrieval of her text messages and internet searches. He also sent the Defendant’s
bloody shirt and socks to be tested for DNA. Detective Breedlove stated that he was
unable to get the victim’s DNA for comparison because she had left a safe house where
he had placed her and because he had no way to contact her, as he still had possession of
her telephone. Testing revealed that the blood on the shirt and socks belonged to a
woman. He agreed that the victim could have stayed in the safe house for an extended
period of time but chose to leave. He stated that the victim had clearly suffered an assault
and that he never intended to charge her with prostitution because prostitution was a
fairly low-level crime and he had not witnessed her engaging in it.
                                           -9-
       The defense did not offer any evidence. In closing argument, the prosecutor
summarized the proof, including the victim and Defendant’s travels together and their
arrest for the possession of the firearm. The Defendant argued that the victim was
choosing to engage in prostitution, that she had lied numerous times, and that she had
unlimited opportunities to leave the Defendant during their travels. The State argued that
the Defendant benefitted “[o]ver and over and over and over and over and over again”
from the victim’s prostitution as they traveled and that while the victim may at first have
been a willing participant, he eventually secured her cooperation by assaulting and
threatening to assault her and controlling her belongings and movements.

        The jury acquitted the Defendant of attempted second degree murder and instead
found him guilty of the lesser-included offense of reckless endangerment. The jury also
acquitted the Defendant of the count charging trafficking for a commercial sex act by
means of recruiting, enticing, harboring, transporting, providing, purchasing or obtaining
the victim by any other means. The Defendant was found guilty on the remaining
charges, including the two alternative theories of aggravated assault and one count of
trafficking for a commercial sex act by means of knowingly subjecting, attempting to
subject, benefitting from, or attempting to benefit from the victim’s provision of a
commercial sex act.

        At the sentencing hearing, the trial court merged the reckless endangerment
conviction, the two aggravated assaults, and the domestic assault, and it merged the
conviction for promoting prostitution into the trafficking conviction. The court sentenced
the Defendant as a Range II offender to eleven months and twenty nine days for each
misdemeanor, ten years for each aggravated assault, fifteen years for trafficking for a
commercial sex act, and three years for promoting prostitution. The sentence for
trafficking was to run consecutively to the other offenses for an aggregate sentence of
twenty-five years.

                                        ANALYSIS

                                        I. Severance

        The Defendant argues that the trial court erred when it determined that the
offenses were subject to mandatory joinder and when it failed to sever the offenses under
the criteria for permissive joinder. The State responds that the trial court did not abuse its
discretion in finding mandatory joinder, that the trial court’s denial of the motion to sever
was not error under the standards of permissive joinder, and that even if joinder was
improper, any error was harmless. The Defendant responds that the error was not
harmless.

                                            - 10 -
                                  A. Mandatory Joinder

       The Defendant asserts that the sexual crimes and the offenses related to the assault
are not based on the same conduct and do not arise from the same criminal episode and
that the trial court accordingly erred in finding that they should be joined under the
provisions governing mandatory joinder. The State responds that the two offenses arose
from the same criminal episode. We conclude that the facts demonstrate a break in the
action such that the offenses were not required to be joined under the provisions
regarding mandatory joinder.

     Tennessee Rule of Criminal Procedure 8(a) provides the requirements for
mandatory joinder:

       (1) Criteria for Mandatory Joinder. Two or more offenses shall be joined
       in the same indictment, presentment, or information, with each offense
       stated in a separate count, or the offenses consolidated pursuant to Rule 13,
       if the offenses are:

       (A) based on the same conduct or arise from the same criminal episode;

       (B) within the jurisdiction of a single court; and

       (C) known to the appropriate prosecuting official at the time of the return of
       the indictment(s), presentment(s), or information(s).

       When offenses are subject to mandatory joinder, a defendant has a right not to be
subject to separate trials for the offenses unless they are severed under Tennessee Rule of
Criminal Procedure 14. Tenn. R. Crim. P. 8(a)(2). Under the provisions of mandatory
joinder, the trial court shall nevertheless grant severance prior to trial “when the court
finds a severance appropriate to promote a fair determination of the defendant’s guilt or
innocence of each offense,” or during trial if the defendant consents and the court finds
severance “necessary to achieve a fair determination of the defendant’s guilt or innocence
of each offense.” Tenn. R. Crim. P. 14(b)(2)(A)-(B). The rule regarding mandatory
joinder is designed to “promote efficiency and economy” and “to stop the practice by
some prosecuting attorneys of ‘saving back’ one or more charges arising from the same
conduct or from the same criminal episode.” Tenn. R. Crim. P. 8, Advisory Comm’n
Cmt. Accordingly, failure to join offenses subject to mandatory joinder prevents the
State from subsequently prosecuting any charges which were improperly omitted from
the prosecution. State v. Johnson, 342 S.W.3d 468, 473 (Tenn. 2011).



                                            - 11 -
       A trial court’s factual findings related to mandatory joinder under Tennessee Rule
of Criminal Procedure 8(a) are binding on appeal unless the evidence preponderates
otherwise. State v. Baird, 88 S.W.3d 617, 620 (Tenn. Crim. App. 2001). When the facts
relevant to an issue of joinder are undisputed, the trial court is in essence engaged in the
construction and interpretation of the rules of court. Johnson, 342 S.W.3d at 471. This
court reviews the proper application of Tennessee Rule of Criminal Procedure 8(a) to
undisputed facts de novo, with no presumption of correctness. Id.

       Mandatory joinder applies when offenses arise out of either the same conduct or
the same criminal episode. Tenn. R. Crim. P. 8(a)(1). The parties agree that the sexual
offenses and assaultive offenses here do not arise out of the same conduct. Offenses that
are part of the same criminal episode “must occur simultaneously or in close sequence
and must occur in the same place or in closely situated places.” Johnson, 342 S.W.3d at
475. “A break in the action may be sufficient to interrupt the temporal proximity
required for a single criminal episode to exist.” Id. “‘A critical characteristic of single
episode offenses, particularly in cases involving otherwise unrelated offenses or
offenders, is the fact that proof of one offense necessarily involves proof of the others.’”
Id. at 474 (footnote omitted) (quoting 2 ABA Standards for Criminal Justice § 13–1.2
cmt., at 13.10). The Tennessee Supreme Court has further clarified that the evidence
related to the offenses must be inextricably connected or that proof of one offense must
form a substantial part of the proof of the other offense. Id. at 475. For mandatory
joinder to apply under this provision, the overlapping evidence must be more than merely
relevant to both crimes. Id. at 476.

        Accordingly, when the proof of one offense is merely relevant but not inextricably
connected with the other, the offenses are not part of the same criminal episode. Id.
(concluding that a police report falsely claiming that a vehicle used in a robbery had been
stolen was not part of the same criminal episode as the robbery, when the report was
placed twelve hours after a robbery and in a different location, and when the proof of the
offenses, while mutually relevant, was not inextricably connected); State v. Roy Lee Ellis,
No. W2017-00699-CCA-R3-CD, 2018 WL 673387, at *7 (Tenn. Crim. App. Jan. 31,
2018) (concluding that there was no mandatory joinder of sexual exploitation of a minor
offense with aggravated kidnapping, aggravated rape, and aggravated assault, when the
defendant had shown the victim explicit photographs on his telephone but the record did
not reflect when or where the images were loaded onto the telephone and the proof of the
possession of the images was not inextricably connected with the proof of the other
crimes), no perm. app. filed; State v. Mario D. Frederick, No. M2016-00737-CCA-R3-
CD, 2017 WL 2117026, at *5 (Tenn. Crim. App. May 15, 2017) (no mandatory joinder
when the numerous offenses for solicitation of a minor and indecent exposure spanned
fifteen days); State v. Demeko Gerard Duckworth, No. M2012-01234-CCA-R3-CD, 2013
WL 1933085, at *13 (Tenn. Crim. App. May 10, 2013) (joinder was not mandatory
                                           - 12 -
because although two murders were committed approximately one hour apart and in the
same city, proof from either murder would not necessarily constitute proof of the other);
State v. Brandon Churchman, No. W2013-00175-CCA-R3-CD, 2014 WL 12651043, at
*8 (Tenn. Crim. App. Apr. 28, 2014) (concluding that mandatory joinder did not apply
even though there was “a substantial overlap in evidence,” when the defendants’ robbery
of one victim was relevant to establishing their identity in a subsequently committed
murder, but the offenses demonstrated a break in the action and no continuity of place).

       On the other hand, when offenses are very closely related so that the proof is
inextricably entwined and there is no break in the action, the offenses must be joined
under the Rule. See State v. Carruthers, 35 S.W.3d 516, 572-73 (Tenn. 2000) (appendix)
(charges of three counts of first degree murder were properly joined with three counts of
especially aggravated kidnapping and one count of especially aggravated robbery because
they involved the same three victims and arose from the same criminal episode); State v.
Shepherd, 902 S.W.2d 895, 904 (Tenn. 1995) (mandatory joinder was applied where
aggravated assault offenses were committed during an investigation of first degree
murder and the proof was accordingly inextricably connected); State v. Caruthers, 676
S.W.2d 935, 940 (Tenn. 1984) (first degree murder of one victim was inextricably
connected with the contemporaneous kidnapping and robbery of both victims and assault
of the second victim); Gary Wayne Johnson v. State, No. M2013-02034-CCA-R3-PC,
2014 WL 5840231, at *9 (Tenn. Crim. App. Nov. 12, 2014) (the offenses were the
“textbook definition” of a continuing criminal episode and were mandatorily joined when
the defendant overpowered a prison guard at the hospital and proceeded to rob other
individuals of their cars before kidnapping a man to drive him out of the state); State v.
Michael Jason Vance, No. M2011-02469-CCA-R3-CD, 2013 WL 6001954, at *25
(Tenn. Crim. App. Nov. 12, 2013) (offenses of evading arrest, making a false police
report, and unlawful possession of a deadly weapon were mandatorily joined with first
degree murder because the offenses occurred in close sequence, were interrelated, and
because the first degree murder charge would necessarily require proof of the other
charges as relevant to premeditation); State v. Scotty Dale Staggs, No. M2011-01675-
CCA-R3-CD, 2013 WL 2722286, at *14 (Tenn. Crim. App. June 12, 2013) (offenses of
aggravated burglary, theft, and evading arrest were mandatorily joined when the offenses
occurred in close sequence and closely situated places and the evading arrest offense was
committed during the investigation of the other offenses); Baird, 88 S.W.3d at 621
(offenses were subject to mandatory joinder when the defendant’s involvement in a
gambling enterprise continued with no interruption in time, but two indictments charging
offenses occurring in successive periods of time were returned).

      In the case at bar, the Defendant was charged with attempted second degree
murder, aggravated assault by strangulation, aggravated assault by serious bodily injury,
domestic assault, reckless endangerment of the victim’s fetus, interference with
                                          - 13 -
emergency communications, evading arrest, promoting prostitution, and various counts of
trafficking for a commercial sex act. The Defendant argues on appeal that the trial court
should have severed the trafficking and promotion of prostitution offenses from the other
offenses.

       The indictment charged the offenses related to the assault as occurring on
February 14, 2017; the trafficking for a commercial sex act offenses were charged as
occurring between January 1, 2017, and February 14, 2017; and the promotion of
prostitution was charged as occurring between February 10, 2017, and February 14, 2017.
Accordingly, it appears that the sexual offenses were charged as spanning a period of
days, whereas the assaultive offenses took place on the 14th. The evidence presented at
the hearing established that the Defendant had posted advertisements for the victim to
engage in prostitution in Nashville and subsequently in Brentwood.

        The assault at issue had its roots in the Defendant’s frustration that the victim was
unable to fix her friend’s hair to make her friend more appealing as a prostitute. The
victim testified that although she may have seen one or two clients that day, the
Defendant had decided that they should focus on fixing the victim’s friend’s appearance
before the victim and her friend could continue working. She testified that the three went
to a store to buy Valentine’s Day presents, that they were drinking in the hotel room, and
that it was “kind of a laid-back day.” The victim’s testimony and the dates in the
indictment indicate a break in the action between the sexual offenses and the assault such
that the offenses do not constitute one criminal episode.1 Although, as we discuss further
below, the proof related to the offenses is mutually relevant, it is not inextricably
entwined. Accordingly, we conclude that the offenses were not properly tried together
pursuant to mandatory joinder.

                                        B. Permissive Joinder

       The Defendant argues that, under the principles of permissive joinder, the trial
court erred when it refused to sever the offenses. He asserts that the State did not
establish a common scheme or plan and that he was entitled to a severance under
Tennessee Rule of Criminal Procedure 14(b)(1). The State responds that if joinder was
not mandatory, the offenses were subject to permissive joinder, the trial court did not

        1
          We note that the trial court found that there was proof before it that an advertisement was posted
on February 13th or 14th, but the transcript of the hearing does not reflect any proof regarding when the
advertisements were posted, although the State’s written response to the severance motion references
exhibits to the motion which are not in the record on appeal. In any event, the victim’s testimony that she
and her friend were not working, that they were attempting to correct her friend’s appearance, and that
they intended to relax that day sufficiently establishes a break in the action.
                                                  - 14 -
abuse its discretion in denying severance, and any error was harmless. We conclude that
the offenses were properly joined under the principles of permissive joinder and that the
trial court did not err in refusing severance.

       A trial court’s decisions regarding permissive joinder or severance pursuant to
Tennessee Rule of Criminal Procedure 14(b)(1) are reviewed for abuse of discretion.
Spicer v. State, 12 S.W.3d 438, 442-43 (Tenn. 2000) (citing State v. Shirley, 6 S.W.3d
243, 247 (Tenn. 1999)); State v. Quantez Person, No. W2016-01945-CCA-R3-CD, 2018
WL 447122, at *3 n.2 (Tenn. Crim. App. Jan. 16, 2018). The trial court may exercise its
discretion only “when the offenses are parts of a common scheme or plan and when the
offense sought to be severed would be admissible as evidence in the trial of the other
offenses.” Shirley, 6 S.W.3d at 247. A trial court abuses its discretion when it applies an
incorrect legal standard or reaches a decision which is against logic or reasoning and
which causes an injustice to the complaining party. State v. Dotson, 254 S.W.3d 378,
387–88 (Tenn. 2008). On appeal, we look only to the evidence presented at the hearing
on the motion to sever to determine if the trial court abused its discretion. Spicer, 12
S.W.3d at 445. If a trial court did not conduct the necessary analysis regarding joinder or
severance, the appellate court “must conduct the analysis that the trial court failed to
conduct.” State v. Garrett, 331 S.W.3d 392, 404 (Tenn. 2011).

      Tennessee Rule of Criminal Procedure 8(b) governs permissive joinder:

      (b) Permissive Joinder of Offenses. Two or more offenses may be joined
      in the same indictment, presentment, or information, with each offense
      stated in a separate count, or consolidated pursuant to Rule 13, if:

      (1) the offenses constitute parts of a common scheme or plan; or

      (2) they are of the same or similar character.

In a case of permissive joinder, the defendant may nevertheless be entitled to a severance
under Tennessee Rule of Criminal Procedure 14(b):

      (1) …. If two or more offenses are joined or consolidated for trial pursuant
      to Rule 8(b), the defendant has the right to a severance of the offenses
      unless the offenses are part of a common scheme or plan and the evidence
      of one would be admissible in the trial of the others.

      The principles governing the propriety of permissive joinder differ from those
governing a subsequent severance, and therefore “a defendant may have the right to a
severance of offenses even when those offenses were properly joined initially.” Spicer,
                                          - 15 -
12 S.W.3d at 443. “‘The primary inquiry into whether a severance should have been
granted under Rule 14 is whether the evidence of one crime would be admissible in the
trial of the other if the two counts of indictment had been severed.’” Dotson, 254 S.W.3d
at 386 (quoting State v. Burchfield, 664 S.W.2d 284, 286 (Tenn. 1984)). Accordingly,
“any question as to whether offenses should be tried separately pursuant to Rule 14(b)(1)
is ‘really a question of evidentiary relevance.’” Garrett, 331 S.W.3d at 402 (quoting
State v. Moore, 6 S.W.3d 235, 239 (Tenn. 1999)). The Rule does not require that each
offense be relevant to a material issue in all the other offenses, only that evidence of one
offense be admissible in the trial of the others. Dotson, 254 S.W.3d at 387 n.5. The trial
court must hold a hearing on the motion for a severance and may deny severance only if
it determines that:

       (1) the multiple offenses constitute parts of a common scheme or plan; (2)
       evidence of one of the offenses is relevant to some material issue in the trial
       of the other offenses; and (3) the probative value of the evidence of the
       other offenses is not outweighed by the prejudicial effect that admission of
       the evidence would have on the defendant.

Id. at 387 (footnote omitted) (citing Spicer, 12 S.W.3d at 445).

        To constitute a common scheme or plan, the offenses must either be: “(1) offenses
that reveal a distinctive design or are so similar as to constitute ‘signature’ crimes; (2)
offenses that are part of a larger, continuing plan or conspiracy; and (3) offenses that are
all part of the same criminal transaction.” Shirley, 6 S.W.3d at 248. The State argues
that the offenses were part of a continuing plan or part of an ongoing criminal transaction.
Crimes which are part of the same criminal transaction are admissible “when it is
necessary to provide the trier of fact with a full and essential understanding of the crime
on trial.” State v. John Allen Murphy, Jr., No. M2007-02416-CCA-R3-CD, 2009 WL
1643442, at *7 (Tenn. Crim. App. June 12, 2009) (citing Neil P. Cohen et al., Tennessee
Law of Evidence § 4.04[13] (5th ed.2005)). However, such evidence of other crimes
“‘should be limited to those so inextricably connected in time, place, or manner that the
jury would be unable to comprehend the essential nature of the charged crime without
hearing evidence of the “other” crime.’” Id. at *8 (quoting Neil P. Cohen et al.,
Tennessee Law of Evidence § 4.04[13] (5th ed.2005)).

       “[A] larger, continuing plan or conspiracy ‘involves not the similarity between the
crimes, but [rather] the common goal or purpose at which they are directed.’” State v.
Denton, 149 S.W.3d 1, 15 (Tenn. 2004) (quoting State v. Hoyt, 928 S.W.2d 935, 943
(Tenn. Crim. App. 1995), overruled on other grounds by Spicer, 12 S.W.3d at 447); see
State v. Hallock, 875 S.W.2d 285, 290 (Tenn. Crim. App. 1993). In other words, the plan
“‘operat[es] towards the future with such force as to make probable the crime for which
                                           - 16 -
the defendant is on trial.’” State v. Prentice, 113 S.W.3d 326, 331 (Tenn. Crim. App.
2001) (quoting Hoyt, 928 S.W.2d at 943). A shared motivation for two otherwise
unrelated crimes is not sufficient, but “[e]ach of the consolidated offenses must serve to
further the goal or plan in existence at the time of the commission of the first offenses.”
State v. Timothy Leron Brown, No. M2017-00904-CCA-R3-CD, 2019 WL 1514551, at
*28 (Tenn. Crim. App. Apr. 8, 2019), perm. app. denied (Tenn. Aug. 15, 2019); see, e.g.,
State v. Hall, 976 S.W.2d 121, 146 (Tenn. 1998) (numerous burglaries and thefts and two
murders were all part of a common scheme or plan by escaped inmates to avoid
recapture); State v. Deredious Otis, Brashard Gibbs, and Carlos Key, No. W2016-01261-
CCA-R3-CD, 2018 WL 931131, at *7 (Tenn. Crim. App. Feb. 15, 2018), perm. app.
denied (Tenn. June 8, 2018) (two shootings were part of a common plan to seek revenge
for a burglary and theft); State v. Osborne, 251 S.W.3d 1, 12-13 (Tenn. Crim. App. 2007)
(the defendant’s sexual offenses against his daughter and another minor victim were part
of a common scheme or plan when he used his daughter’s friendship with the other
victim and his status as the victim’s babysitter to commit the offenses); State v. Morris,
788 S.W.2d 820, 823 (Tenn. Crim. App. 1990) (the defendant’s sexual offenses were part
of a common scheme or plan to molest the victims when they were committed against
members of a tumbling group); State v. Wiseman, 643 S.W.2d 354, 363 (Tenn. Crim.
App. 1982) (multiple offenses were part a common scheme to defraud the county); but
see Garrett, 331 S.W.3d at 405 (concluding that an aggravated robbery and murder
committed on consecutive days were not part of a larger plan or conspiracy and not part
of the same criminal transaction); Denton, 149 S.W.3d at 15 (concluding that a medical
provider’s sex offenses were not part of continuing plan or conspiracy based only on the
fact that they were committed for sexual gratification); Prentice, 113 S.W.3d at 332 (two
instances of violence committed against the victim were not part of a common plan to
terrorize her, and the proof of one offense would not have been admissible in the trial for
the other); Hallock, 875 S.W.2d at 290 (defendant’s sexual abuse of minor children in his
household was not part of a common scheme or plan merely because it was for the
purpose of sexual gratification).

        Here, the evidence at the hearing established that the Defendant’s sole source of
income came from the victim’s acts of prostitution. The Defendant accordingly would
arrange travel to various cities, arrange accommodations where the victim could engage
in prostitution, and post advertisements online to attract clients. In order to maintain
control over the victim, the Defendant dispossessed her of her identification, money, and
telephone. The Defendant threatened her with a gun in order to ensure her compliance.
The victim also testified that the Defendant’s ongoing physical abuse facilitated his
ability to control her actions, including dictating when she was permitted to eat or drink.
She stated that the physical abuse contributed to her decision to stay with him, testifying
that she had only left him in public spaces or when he was asleep because she was afraid
he would hurt her otherwise. The Defendant had procured the services of a second
                                          - 17 -
prostitute, the victim’s friend, in order to supplement his income during the victim’s
pregnancy. The victim attributed the assault on Valentine’s Day to her inability to coach
her friend to be adequately profitable, stating that the situation “really escalated” when
she was unable to secure a hair tie in her friend’s hair. We conclude that the Defendant’s
physical abuse of the victim, including the February 14th assault, was part and parcel of
his continuing plan to subdue the victim in order to profit from the victim’s prostitution,
and that this satisfies the requirement of a “‘common goal or purpose.’” Denton, 149
S.W.3d 1, 15; see United States v. Davis, 241 F. Supp. 3d 261, 263–64 (D. Mass. 2017)
(“Evidence of conduct, including allegations of physical abuse and withholding heroin
from drug-addicted women, separated by just a few months, even in different states, can
be probative of intent to coerce prostitution and a common coercive prostitution
scheme.”). Accordingly, the first criterion of a common scheme or plan is met, and we
proceed to consider whether the offenses are relevant to some material issue in the trial of
the other offenses and to consider the appropriate balancing of the probative and
prejudicial value of the evidence.

        Because the primary inquiry in a question of severance under Rule 8(b)(1) is
whether the evidence of one crime would be admissible in the trial of the others, the
requirement that evidence of one of the offenses be relevant to some material issue in the
trial of the other offenses and the balancing of the probative and prejudicial value of the
evidence is in essence an analysis under Tennessee Rule of Evidence 404(b). See Spicer,
12 S.W.3d at 445 (enumerating the three required findings by the trial court and citing
Tennessee Rule of Evidence 404(b) as authority for requiring that the evidence be
relevant to some material issue and that its probative value not be outweighed by any
prejudicial effect).

        “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.” Tenn. R. Evid.
404(b). This is to prevent the jury from convicting the defendant of a crime based on
propensity rather than proof of guilt of a specific offense. Garrett, 331 S.W.3d at 402
(citing Dotson, 254 S.W.3d at 387). “Accordingly, any doubt about the propriety of the
consolidation of similar offenses over a defendant’s objection should be resolved in favor
of the defendant.” Id. at 403. Rule 404(b), however, permits evidence when offered to
prove some issue other than character or propensity relevant to trial. Moore, 6 S.W.3d at
239. Material issues on which 404(b) evidence may bear include: “(1) motive; (2) intent;
(3) guilty knowledge; (4) identity of the defendant; (5) absence of mistake or accident;
(6) a common scheme or plan; (7) completion of the story; (8) opportunity; and (9)
preparation.” State v. Berry, 141 S.W.3d 549, 582 (Tenn. 2004) (appendix); State v.
Gilliland, 22 S.W.3d 266, 271 n.6 (Tenn. 2000). If the offenses sought to be severed are
not relevant to prove a material issue in conformity with Rule 404(b), then severance
should be granted. See State v. Toliver, 117 S.W.3d 216, 230 (Tenn. 2003) (the
                                           - 18 -
defendant’s two separate acts of child abuse were not relevant to identity, intent, or any
other material issue, and the two offenses should have been severed).

      In evaluating propensity evidence, the trial court must adhere to the following
procedure:

             (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). In general, a court should take a restrictive approach to admitting
evidence under Rule 404(b) because of the potential that the jury will be unfairly
influenced. Dotson, 450 S.W.3d at 76. “‘Prejudice becomes unfair when the primary
purpose of the evidence at issue is to elicit emotions of bias, sympathy, hatred, contempt,
retribution, or horror.’” State v. Young, 196 S.W.3d 85, 106 (Tenn. 2006) (quoting State
v. Collins, 986 S.W.2d 13, 20 (Tenn. Crim. App. 1998)). The danger of unfair prejudice
is increased if the prior bad act was similar to the crime at issue at trial. State v. Adams,
405 S.W.3d 641, 659 (Tenn. 2013).

       A brief review of the elements of the offenses with which the Defendant was
charged is pertinent. The attempted second degree murder charge required the state to
prove the Defendant’s specific intent to commit a knowing killing of another. See T.C.A.
§ 39-12-101(a); T.C.A. § 39-13-210(a)(1). For the aggravated assault by strangulation
charge, as charged here, the State had to demonstrate that the Defendant intentionally or
knowingly caused the victim bodily injury and that the act involved strangulation.
T.C.A. §§ 39-13-102 (a)(1)(A)(iv) (2014), -101(a)(1). To prove aggravated assault by
serious bodily injury, the State was required to establish that the Defendant intentionally
or knowingly caused the victim bodily injury and that the assault resulted in serious
bodily injury. T.C.A. §§ 39-13-102 (a)(1)(A)(i), -101(a)(1). For domestic assault, the
State had to present proof that the Defendant intentionally, knowingly, or recklessly
caused bodily injury to the victim, who was a domestic abuse victim. T.C.A. §§ 39-13-
                                           - 19 -
111(b), -101(a)(1). For the charge of reckless endangerment of the victim’s fetus, the
State was required to prove that the Defendant recklessly engaged in conduct which
placed or might have placed another person in imminent danger of death or serious bodily
injury. T.C.A. § 39-13-103(a). The Defendant was also charged with interference with
emergency communications, which required proof that he intentionally rendered a
telephone unusable and that the telephone would otherwise have been used to request
emergency assistance from an agency whose purpose is to provide for the safety of
individuals. T.C.A. § 65-21-117(b). To show that the Defendant was guilty of evading
arrest, the State had to show that he intentionally fled from a person he knew to be a law
enforcement officer and that he knew the officer was attempting to arrest him. T.C.A. §
39-16-603(a)(1)(A).

       For the first trafficking charge, the State had to demonstrate that the Defendant
knowingly subjected, attempted to subject, benefitted from, or attempted to benefit from
the victim’s provision of a commercial sex act. T.C.A. § 39-13-309(a)(1). The
alternative trafficking charge required proof that the Defendant recruited, enticed,
harbored, transported, provided, purchased, or obtained by any other means, another
person for the purpose of providing a commercial sex act. T.C.A. § 39-13-309(a)(2).
The means referenced in this subsection include “[c]ausing or threatening to cause
physical harm to the person” and knowingly removing, confiscating, or possessing the
victim’s government identification document. T.C.A. § 39-13-309(b)(1), (4). To
demonstrate that the Defendant promoted prostitution as charged to the jury, the State had
to establish that he intentionally, knowingly, or recklessly received benefit from soliciting
a person to patronize a prostitute. T.C.A. §§ 39-13-515(a)(1); -512(4)(A)(vi).

       The elements of the alternative trafficking charge explicitly make the assault
relevant, because statute provides that the Defendant causing or threatening to cause
physical harm to the victim may establish the means by which he obtained her for the
purposes of providing a commercial sex act. Furthermore, the sex trafficking and
promoting prostitution charges are relevant to the Defendant’s motive and intent in the
assaultive offenses. The victim testified that the Defendant’s sole source of income was
taking her earnings from prostitution. She further testified that the Defendant was
physically abusing her, that she was afraid of the Defendant, and that fear of further
abuse was one reason she did not leave him. The victim stated that the assault was the
culmination of the Defendant’s frustration that she was pregnant and would not be able to
earn income, that her friend was not as profitable as he had hoped, and that she had been
unable to groom her friend’s hair in order to increase her friend’s profitability. See State
v. March, 395 S.W.3d 738, 783-84 (Tenn. Crim. App. 2011) (prior misconduct with a
female coworker was relevant to the defendant’s motive to kill his wife); State v. Moss,
13 S.W.3d 374, 384 (Tenn. Crim. App. 1999) (prior bad acts committed against the
defendant’s daughter were relevant to supply a motive and intent for the murder of his
                                           - 20 -
wife). Accordingly, we conclude that the offenses were properly admissible under Rule
404(b).

        The offenses were part of a common scheme or plan aimed at the Defendant’s
profiting off of the victim’s continued engagement in prostitution. See Davis, 241 F.
Supp. 3d at 263-64. The evidence regarding the assault was relevant to the sexual
offenses, and the evidence regarding the sexual offenses established the Defendant’s
motive to commit the assault. The trial court found that the probative value of the
evidence was not outweighed by its prejudicial effect. Accordingly, we conclude the trial
court did not err in denying severance.

          II. Tennessee Rule of Evidence 404(b) Evidence of Prior Bad Acts

       The Defendant also objects to the trial court’s decision to permit the State to
introduce evidence of his previous bad acts, including prior postings advertising the
victim for prostitution in other jurisdictions, his arrest on a weapons offense in Alabama,
and his repeated assaults and threats to the victim. We conclude that the evidence was
relevant to material issues other than character and that the trial court did not abuse its
discretion in admitting the evidence.

        As noted above, evidence of prior bad acts committed by the defendant is not
admissible as propensity evidence but may be admissible for the limited purpose of
proving motive, intent, identity, absence of mistake or accident, opportunity, a common
scheme or plan or to provide contextual background. State v. Giles, 493 S.W.3d 504, 522
(Tenn. Crim. App. 2016). The trial court must upon request hold a jury-out hearing, must
find that the prior bad act is established by clear and convincing evidence, must
determine that the proof bears on a material issue other than character and on request
memorialize the specifics of the ruling, and must exclude the evidence if its probative
value is outweighed by the danger of unfair prejudice. Tenn. R. Evid. 404(b). When a
trial court has complied with the dictates of Rule 404 in determining the admissibility of
prior bad acts, its ruling is reviewed for abuse of discretion. State v. Clark, 452 S.W.3d
268, 287 (Tenn. 2014). Otherwise, the determination of admissibility is made by the
reviewing court. Id.; State v. DuBose, 953 S.W.2d 649, 653 (Tenn. 1997).

       Here, the trial court held a hearing outside the presence of the jury, determined
that the evidence of the bad acts was clear and convincing, and concluded that the
probative value of the evidence was not outweighed by the danger of unfair prejudice.
The trial court, in making its oral ruling, concluded that the evidence bore on the context
of the parties’ relationship and the circumstances surrounding the crime. The Defendant
notes that, in denying the motion to exclude the evidence under Rule 404(b), the trial
court’s written order recited:
                                          - 21 -
       If the evidence establishes that [the Defendant] engaged in the conduct
       alleged in [the trafficking and promoting prostitution offenses] in places
       other than Tennessee the evidence would be relevant to establish that he
       engaged in such conduct with [the victim] in Tennessee. As a consequence,
       the evidence is material on issues other than conduct conforming to a
       character trait.

The Defendant correctly points out that this reasoning is precisely the type of character
evidence that the Rule is designed to exclude. We nevertheless observe that the evidence
is relevant to establishing a material issue other than character trait.

        The evidence that the Defendant’s livelihood was based on his continued act of
prostituting the victim was relevant to his motive and intent in the offenses at issue. The
Defendant’s economic dependence on the victim and her inability to continue supporting
the Defendant provided a motive for his physical attack on her, including his kicks to her
pregnant abdomen. Evidence that the Defendant had lived off of the victim’s earnings in
the past was also relevant to his intent to benefit from her engaging in prostitution, his
intent in transporting her, and to the existence of a common scheme or plan. The
Defendant was also charged with attempted second degree murder, which required the
State to prove that the Defendant had the specific intent to commit a knowing killing.
The Defendant’s prior physical abuse was likewise relevant to his motive and intent to
harm the victim in this count. See State v. Smith, 868 S.W.2d 561, 574 (Tenn. 1993)
(noting 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”);
Michael Jason Vance, 2013 WL 6001954, at *11, 13 (concluding that evidence of the
parties’ “stormy relationship” and the “Defendant’s prior bad acts towards the victim
were relevant to show Defendant’s motive and intent”); State v. Coulter, 67 S.W.3d 3, 48
(Tenn. Crim. App. 2001) (“Among the relevant circumstances are facts about the
defendant’s prior relationship and conduct with the victim from which the jury may infer
a motive.”), abrogated on other grounds by State v. Jackson, 173 S.W.3d 401, 407 n.3
(Tenn. 2005).

        Furthermore, as noted above, one of the trafficking charges was comprised of
recruiting, enticing, harboring, transporting, providing, purchasing, or obtaining by any
other means, another person for the purpose of providing a commercial sex act. T.C.A. §
39-13-309(a)(2). The statute defines “by any means” to include “[c]ausing or threatening
to cause physical harm to the person.” T.C.A. § 39-13-309(b)(1). Evidence that the
Defendant had previously physically abused the victim and routinely threatened her with
a gun was relevant to explain why the victim had not left the Defendant even though she
testified that she was not physically restrained. It also explained why the victim would
                                           - 22 -
credit the Defendant’s threats of harm. The victim testified that she called for help only
because she believed he would strike her with a liquor bottle and because she recalled
that he did not have possession of the gun, and she stated that the Defendant’s statement
that he would kill her was prompted by her cries. The evidence was likewise relevant to
showing that the Defendant acted knowingly when he attempted to benefit from the
victim’s acts of commercial sex. The physically abusive relationship and the Defendant’s
possession of a weapon were accordingly relevant to a material issue other than character.

       We also conclude that the trial court did not abuse its discretion in balancing the
prejudicial and probative value of the evidence. While the evidence was certainly not
favorable to the Defendant, the proof was confined to a brief description by the victim of
the course of her relationship with the Defendant. The victim’s preliminary testimony
also included admissions unfavorable to her own credibility, including her drug use and
habitual prostitution, prior criminal history, and arrest on the possession of the weapon in
Alabama. The Defendant, in noting the prejudicial value of the evidence, emphasized
that the prosecutor referred to the Defendant’s benefitting from the victim’s acts of
prostitution “over and over and over…” again in other jurisdictions, but this was in
response to the Defendant’s argument that the victim had had “limitless” opportunities to
leave the Defendant in other jurisdictions. We conclude that, particularly in light of the
overwhelming evidence regarding the offenses, the admission of the evidence was not
unduly prejudicial. Accordingly, the trial court did not abuse its discretion in admitting
the evidence.

                                     CONCLUSION

       Based on the foregoing analysis, we affirm the judgments of the trial court.



                                    ___________________________________________
                                    JOHN EVERETT WILLIAMS, PRESIDING JUDGE




                                           - 23 -
