                  IN THE SUPREME COURT OF TENNESSEE
                             AT NASHVILLE
                                   June 3, 2011 Session

                      STATE OF TENNESSEE v.
             NELSON AGUILAR GOMEZ and FLORINDA LOPEZ

              Appeal by Permission from the Court of Criminal Appeals
                        Criminal Court for Davidson County
                  No. 2007-D-3177     Cheryl A. Blackburn, Judge


                  No. M2008-02737-SC-R11-CD - Filed April 24, 2012




A mother and father were jointly tried on two counts of felony murder and three counts of
aggravated child abuse as a result of the death of their child. Only the mother testified in her
own defense. During direct examination, the mother did not testify about prior incidents in
which the father assaulted her. On cross-examination, father’s counsel asked the mother
whether she believed the father was capable of “hurting” the victim. The trial court ruled sua
sponte that counsel for the father had “opened the door” to cross-examination about the
father’s assaults against the mother. The father was convicted of two counts of felony
murder and three counts of aggravated child abuse, and the trial court merged the felony
murder counts. The mother was convicted of two counts of facilitation of felony murder and
two counts of aggravated child abuse, and the trial court merged the facilitation of felony
murder counts. The Court of Criminal Appeals dismissed one aggravated child abuse count
against the father but affirmed the ruling of the trial court in all other respects. Only the
mother appealed. We hold that the evidence of prior assaults by the father was inadmissible
and that the parties did not open the door to cross-examination about the father’s assaults
against the mother. We reverse the mother’s conviction and remand the case for a new trial.

                    Tenn. R. App. P. 11 Appeal by Permission;
               Judgment of the Court of Criminal Appeals Reversed;
             Case Remanded to the Criminal Court for Davidson County

J ANICE M. H OLDER, J., delivered the opinion of the Court, in which C ORNELIA A. C LARK,
C.J., and G ARY R. W ADE, W ILLIAM C. K OCH, J R., and S HARON G. L EE, JJ., joined.

Jeffrey Allen Devasher, Nashville, Tennessee (on appeal); J. Michael Engle and Mary
Kathryn Harcombe (at trial), for the appellant, Florinda Lopez.
Robert E. Cooper, Jr., Attorney General and Reporter; Gordon W. Smith, Associate Solicitor
General; Clark Bryan Thornton, Assistant Attorney General, for the appellee, State of
Tennessee.

                                         OPINION

                              I. Facts and Procedural History

       On March 3, 2007, Nelson Aguilar Gomez and Florinda Lopez took their three-
month-old daughter, Azucena Lopez-Lajuj (“the victim”), to the hospital emergency room.
When the victim arrived at the hospital, she showed signs of bruising and had been dead for
several hours.

       On November 16, 2007, both Mr. Gomez and Ms. Lopez were indicted on two counts
of felony murder and three counts of aggravated child abuse. See Tenn. Code Ann.
§§ 39-13-202(a)(2), -15-402(a) (2006). Their consolidated trials were conducted from
September 23 to September 26, 2008.

        At trial, the State presented evidence demonstrating that the fatal injuries were
inflicted on the victim between approximately 10:00 p.m. on March 2, 2007, and 3:00 a.m.
on March 3, 2007. The State’s evidence showed that Ms. Lopez went to work at
approximately 4:00 p.m. on March 2, 2007, and returned home after her shift ended at 12:15
a.m. on March 3, 2007. The State also presented evidence that Mr. Gomez was with the
victim from the time Ms. Lopez went to work until the victim was taken to the hospital the
next morning.

       Ms. Lopez’s sister, Josefina Lopez, testified that the victim appeared healthy and
happy two days before she died but that she had seen a scratch on the victim’s eye. Ms.
Lopez’s sister attributed the scratch to the victim’s long fingernails and told Ms. Lopez that
she needed to cut the victim’s fingernails.

      A week before the victim died, Mr. Gomez, Ms. Lopez, and the victim moved into a
two-bedroom apartment with another couple, Francisco Sontay and Maria Chrisanta Ixpata.
Mr. Gomez, Ms. Lopez, and the victim shared a bed in their bedroom. Another roommate,
Juan Antonio Sis Garcia, slept on the couch in the living room.

       Mr. Sontay testified that when he came home on the afternoon of March 2, 2007, the
victim was on the sofa, Ms. Lopez was cooking in the kitchen, and Mr. Gomez was in their
bedroom. At that time, the victim was laughing and appeared healthy and happy. Mr. Sontay
went to work. Mr. Gomez was in his bedroom when Mr. Sontay returned at approximately

                                             -2-
9:30 p.m. Mr. Sontay testified that he was watching television with Ms. Ixpata and Mr. Sis
Garcia when Ms. Lopez came home. Mr. Sontay testified that Ms. Lopez went into her
bedroom, came out after a few minutes to get something from the kitchen, and returned to
her bedroom. Mr. Sontay testified that he never saw Mr. Gomez or Ms. Lopez injure the
victim.

       Mr. Sis Garcia testified that he was lying down in the living room when Ms. Lopez
came home from work at approximately midnight on the day the victim died. He did not
speak to Ms. Lopez when she came home. He testified that he never saw Mr. Gomez or Ms.
Lopez injure the victim and that the victim appeared to be happy every time he saw her.

        Ms. Ixpata testified that on March 2, 2007, she saw the victim in the afternoon and
that the victim was fine. She described the victim as a cute, happy baby, and she testified
that she never saw Mr. Gomez or Ms. Lopez injure the victim.

       The State, however, presented testimony that approximately three days before the
victim’s death, Mr. Gomez told a co-worker, Francisco Javier Diaz Manzo, that the victim
had injured her head and that Mr. Gomez was afraid he would be arrested if he took the
victim to a doctor.

       Ms. Lopez chose to testify in her own defense at trial. Prior to her testimony, the State
requested permission to cross-examine Ms. Lopez about “issues regarding domestic
violence.” Ms. Lopez’s counsel told the trial court that he did not intend to question her
concerning incidents in which Mr. Gomez allegedly had assaulted Ms. Lopez. The trial court
reserved ruling on the issue but indicated that the State could cross-examine Ms. Lopez about
the assaults if her testimony contradicted her prior statements.

       On direct examination, Ms. Lopez testified that Mr. Gomez and the victim were asleep
when she got home. Ms. Lopez went to bed approximately five minutes after arriving, and
she slept through the victim’s ordinary feeding time between 4:00 a.m. and 5:00 a.m. because
the victim did not wake her. Ms. Lopez awakened briefly but thought the victim was asleep
and went back to sleep. Ms. Lopez slept until 9:00 a.m., at which time she realized that
something was wrong with the victim and she and Mr. Gomez took the victim to the hospital.

       Ms. Lopez stated that she did not notice any injuries on the victim until a detective
told her about bruising on the victim’s body. Ms. Lopez stated that she had never seen Mr.
Gomez mistreat the victim and that if she had seen mistreatment she would have called the
police and filed a complaint. She also stated that if Mr. Gomez had mistreated the victim she
would have sought medical treatment for the victim. Ms. Lopez was not questioned



                                              -3-
concerning any incidents in which Mr. Gomez assaulted her, and she did not offer such
testimony in response to questioning by her counsel.

      On cross-examination, Mr. Gomez’s counsel asked Ms. Lopez, “Did you ever think
[Mr. Gomez] could hurt his own daughter?” Ms. Lopez responded, “No.” Mr. Gomez’s
counsel then asked, “Do you think that he could hurt her today at this moment in time?” Ms.
Lopez responded, “I don’t know what to believe.” Mr. Gomez’s counsel did not question
Ms. Lopez concerning any assaults against her by Mr. Gomez.

       The trial court ruled sua sponte that Mr. Gomez’s counsel had “opened the door to
everything.” The trial court therefore permitted the State to cross-examine Ms. Lopez
concerning statements Ms. Lopez had made previously concerning Mr. Gomez’s assaults
against her.

        Ms. Lopez admitted during cross-examination by the State that when police
interviewed her after the victim’s death she had denied that Mr. Gomez ever hit her. Ms.
Lopez agreed, however, that she sought assistance from the police after Mr. Gomez assaulted
her on an earlier occasion. In addition, Ms. Lopez admitted that she told one of her co-
workers about multiple incidents in which Mr. Gomez had assaulted her. The trial court gave
a limiting instruction to the jury that the evidence of Mr. Gomez’s prior assaults against Ms.
Lopez could be used only to assess Ms. Lopez’s “credibility and to assess her knowledge that
is a required element of this situation.” The trial court also instructed the jury that the
evidence of Mr. Gomez’s assaults against Ms. Lopez could not be used to determine Mr.
Gomez’s guilt.

        During its closing argument, the State argued that Mr. Gomez’s prior assaults against
Ms. Lopez demonstrated that Ms. Lopez “knew the dangers and the risks of [Mr. Gomez’s]
behavior, and she put her child in harm’s way.” The State also made numerous references
to Ms. Lopez’s inconsistent statements about the assaults. The State used Ms. Lopez’s
inconsistent statements to attack her credibility by stating that “she lied repeatedly about that
domestic violence episode” and that “she t[ook] the witness stand and promise[d] to tell the
truth and repeatedly lie[d].” The State also argued that Ms. Lopez’s inconsistent statements
“reflect[ed] consciousness of guilt. They reflect criminal responsibility.”

      The jury convicted Ms. Lopez of two counts of facilitation of first degree murder and
two counts of aggravated child abuse. The jury acquitted Ms. Lopez of a third count of




                                               -4-
aggravated child abuse. The trial court merged both counts of facilitation of felony murder
and sentenced Ms. Lopez to an effective sentence of twenty-five years.1

       On appeal, the Court of Criminal Appeals held that the doctrine of curative
admissibility permitted the State to cross-examine Ms. Lopez about the prior occasions when
Mr. Gomez assaulted her and that the evidence was sufficient to support Ms. Lopez’s
convictions. Gomez, 2010 WL 3528982, at *20-22. We granted Ms. Lopez permission to
appeal.

                                             II. Analysis

       Ms. Lopez has raised two issues on appeal: (1) whether the trial court and the Court
of Criminal Appeals erred in determining that evidence of Mr. Gomez’s assaults against Ms.
Lopez was admissible; and (2) whether the evidence was sufficient to support Ms. Lopez’s
conviction. We conclude that the trial court erred in permitting the admission of evidence
of Mr. Gomez’s assaults against Ms. Lopez and that the error was not harmless. We
therefore do not reach the second issue raised by Ms. Lopez.

       We review a trial court’s decision to admit evidence by determining if the trial court
abused its discretion. State v. Gilliland, 22 S.W.3d 266, 270 (Tenn. 2000). A decision to
admit evidence will be reversed “only when the court applied an incorrect legal standard, or
reached a decision which is against logic or reasoning” and the admission of the evidence
“caused an injustice to the party complaining.” Gilliland, 22 S.W.3d at 270 (quoting State
v. Shirley, 6 S.W.3d 243, 247 (Tenn. 1999)) (internal quotation marks omitted).

       In this case, the State has advanced various theories for the admissibility of the
evidence of Mr. Gomez’s assaults against Ms. Lopez at trial and on appeal. We address each
of these theories in turn.

                                              Knowledge

        The trial court admitted the evidence of Mr. Gomez’s assaults against Ms. Lopez as
substantive evidence to prove Ms. Lopez’s “knowledge that is a required element of this
situation.” In its closing argument, the State argued extensively that Ms. Lopez knew that
Mr. Gomez was a risk to their daughter and that she was therefore guilty of child abuse or


        1
          The jury also convicted Mr. Gomez of both counts of felony murder and three counts of aggravated
child abuse. The Court of Criminal Appeals overturned one of his convictions for aggravated child abuse.
State v. Gomez, No. M2008-02737-CCA-R3-CD, 2010 WL 3528982, at *29 (Tenn. Crim. App. Sept. 10,
2010). Mr. Gomez has not appealed to this Court.

                                                   -5-
child neglect. On appeal, Ms. Lopez has asserted that the trial court “elevated ‘other crimes’
evidence to the status of an element of the offense.” We agree.

         Evidence of Mr. Gomez’s assaults on Ms. Lopez is admissible only to the extent that
it is relevant. See State v. DuBose, 953 S.W.2d 649, 653 (Tenn. 1997); see also Tenn. R.
Evid. 401, 402. The evidence of Mr. Gomez’s assaults on Ms. Lopez is relevant if it made
“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.” Tenn. R. Evid. 401. We
are required to examine the elements of the charged offenses to determine the admissibility
of evidence demonstrating Ms. Lopez’s “knowledge.” See DuBose, 953 S.W.2d at 653.
Construction of a statute is a question of law, which we review de novo. State v. Walls, 62
S.W.3d 119, 121 (Tenn. 2001).

       To be an element of the charged offenses, Ms. Lopez’s “knowledge” could take three
forms: knowledge as an element of child abuse or child neglect, knowledge required for Ms.
Lopez to be criminally responsible for Mr. Gomez’s actions, or knowledge sufficient to prove
that Ms. Lopez facilitated a crime committed by Mr. Gomez.2 We examine each of these
types of knowledge in turn.

       Ms. Lopez was charged with aggravated child abuse or neglect pursuant to Tennessee
Code Annotated section 39-15-402 (2006).3 Although the statutes for child abuse and child
neglect have now been amended to include “child endangerment,” the statute in effect at the
time of the victim’s death did not include provisions for “child endangerment.” Compare



        2
           The element of knowledge required for facilitation is also required for criminal responsibility.
Facilitation therefore is a lesser-included offense of criminal responsibility. State v. Burns, 6 S.W.3d 453,
470 (Tenn. 1999).
        3
         Tennessee Code Annotated section 39-15-402 (2006) defines aggravated child abuse or neglect in
terms of the definition of child abuse or neglect found in Tennessee Code Annotated section 39-15-401
(2006). Tennessee Code Annotated section 39-15-401 (2006) provides:

        (a) Any person who knowingly, other than by accidental means, treats a child under eighteen
        (18) years of age in such a manner as to inflict injury commits a Class A misdemeanor;
        provided, however, that, if the abused child is six (6) years of age or less, the penalty is a
        Class D felony.

        (b) Any person who knowingly abuses or neglects a child under eighteen (18) years of age,
        so as to adversely affect the child's health and welfare, commits a Class A misdemeanor;
        provided, that, if the abused or neglected child is six (6) years of age or less, the penalty is
        a Class E felony.

                                                      -6-
Tenn. Code Ann. § 39-15-401(c) (2010)4 with Tenn. Code Ann. § 39-15-401 (2006). Under
the amended statutory scheme, a parent or custodian who knowingly exposes or fails to
protect a child from abuse or neglect that results in injury commits the crime of “child
endangerment.” See Tenn. Code Ann. § 39-15-401(c) (2010).5 The provision that subjects
a parent to criminal liability for exposing or failing to protect a child from abuse or neglect,
however, was not part of the statute under which Ms. Lopez was charged.

       An amendment to a statute raises a presumption that the General Assembly intended
to change existing law. Lavin v. Jordon, 16 S.W.3d 362, 369 (Tenn. 2000); Dunn v. Hackett,
833 S.W.2d 78, 81 (Tenn. Ct. App. 1992). The amendment of the statute to include the new
offense of child endangerment demonstrates that child endangerment, as described in
Tennessee Code Annotated section 39-15-401(c) (2010), was not an offense under Tennessee
Code Annotated section 39-15-401 (2006). As a result, we conclude that to convict Ms.
Lopez of aggravated child abuse or neglect under the statute in effect in 2007, the State was
not required to demonstrate that Ms. Lopez had “knowledge” that Mr. Gomez would abuse
or neglect their daughter. Any evidence that Ms. Lopez had “knowledge” that Mr. Gomez
had a propensity for violence was therefore irrelevant for the purpose of proving child abuse



        4
            Tennessee Code Annotated section 39-15-401(c) (2010) provides:

        (1) A parent or custodian of a child eight (8) years of age or less commits child
        endangerment who knowingly exposes such child to or knowingly fails to protect such child
        from abuse or neglect resulting in physical injury to the child.

        (2) For purposes of this subsection (c):

        (A) “Knowingly” means the person knew, or should have known upon a reasonable inquiry,
        that abuse to or neglect of the child would occur which would result in physical injury to the
        child. The risk must be of such a nature and degree that the failure to perceive it constitutes
        a gross deviation from the standard of care that an ordinary parent or legal custodian of a
        child eight (8) years of age or less would exercise under all the circumstances as viewed
        from the defendant's standpoint; and

        (B) “Parent or custodian” means the biological or adoptive parent or any person who has
        legal custody of the child.

        (3) A violation of this subsection (c) is a Class A misdemeanor.
        5
          We observe that the amended statutory scheme requires different jury instructions for charges of
child endangerment and child abuse or neglect. Compare 7 Tenn. Practice: Tennessee Pattern Jury
Instructions Criminal 21.03(a) (15th ed. 2011) (child endangerment) with 7 Tenn. Practice: Tennessee Pattern
Jury Instructions Criminal 21.02 (15th ed. 2011) (child abuse or neglect).

                                                     -7-
or child neglect under the version of the criminal code in effect in 2007. See Tenn. R. Evid.
401. Irrelevant evidence is inadmissible. Tenn. R. Evid. 402.

       In the alternative, “knowledge” could be required to show that Ms. Lopez was
criminally responsible for Mr. Gomez’s actions. See Tenn. Code Ann. § 39-11-402 (2010).
To demonstrate that Ms. Lopez was criminally responsible for Mr. Gomez’s actions, the State
must prove that Ms. Lopez intended to “promote or assist” the offense or to “benefit in the
proceeds or results” of the offense. Tenn. Code Ann. § 39-11-402(2), (3). To demonstrate
criminal responsibility for the acts of another, the State must therefore demonstrate that the
defendant “knowingly and voluntarily shared in the criminal intent of the crime and promoted
its commission.” State v. Dorantes, 331 S.W.3d 370, 386 (Tenn. 2011).

       Under the facts of this case, however, evidence that Mr. Gomez had assaulted Ms.
Lopez on a prior occasion does not make it more probable or less probable that Ms. Lopez
intended to promote, assist, or otherwise benefit from the offense against the victim. Tenn.
Code Ann. § 39-11-402(2), (3). The evidence of Mr. Gomez’s assaults on Ms. Lopez
therefore is irrelevant to demonstrate Ms. Lopez’s shared criminal intent and may not be
admitted for this purpose. See Tenn. R. Evid. 401, 402.

       Finally, a person is criminally liable for facilitation of a felony if, without the intent
required for criminal responsibility, that person knows “that another intends to commit a
specific felony” and “knowingly furnishes substantial assistance” for the commission of the
specific felony. Tenn. Code Ann. § 39-11-403 (2010). In this case, however, evidence of
Mr. Gomez’s assaults against Ms. Lopez does not demonstrate that it is more probable or less
probable that Ms. Lopez knew that Mr. Gomez intended to commit the offense of child abuse
or child neglect. As a result, evidence of Mr. Gomez’s assaults against Ms. Lopez is
irrelevant and inadmissible to prove facilitation. See Tenn. R. Evid. 401, 402.6



        6
          In the Court of Criminal Appeals, the State argued that Tennessee Rule of Evidence 404(b) permits
the admission against Ms. Lopez of evidence of Mr. Gomez’s prior assaults against her. We have previously
held that in the context of Rule 404(b), “a person” is the defendant who allegedly committed the “other
crimes, wrongs, or acts,” Tenn. R. Evid. 404(b). State v. Stevens, 78 S.W.3d 817, 837 (Tenn. 2002); see also
DuBose, 953 S.W.2d at 653 (“Evidence of crimes, wrongs or acts, if relevant, are not excluded by Rule
404(b) if they were committed by a person other than the accused . . . .”). In this case, the assaults were
committed by Mr. Gomez. Rule 404(b) therefore is inapplicable as to Ms. Lopez.

        The admission of evidence of one defendant’s prior bad acts against a co-defendant may be unfairly
prejudicial even with a limiting instruction. See Tenn. R. Evid. 404(b)(4). Mr. Gomez has not appealed his
case, and we therefore do not reach the issue of whether the admission of the domestic violence evidence
against Ms. Lopez in their joint trial was unfairly prejudicial to Mr. Gomez.

                                                    -8-
       Even if the evidence of Mr. Gomez’s assaults against Ms. Lopez had been admissible,
the admission of the evidence would be subject to the requirements of Tennessee Rule of
Evidence 403. Evidence should be excluded “if its probative value is substantially
outweighed by the danger of unfair prejudice.” Tenn. R. Evid. 403. In this case, any
probative value of the evidence was extremely limited, and the evidence was highly
prejudicial because it risked introducing extraneous issues and causing the jury to decide the
case on an improper basis. See DuBose, 953 S.W.2d at 654.

                                            Opening the Door

        We have concluded that the evidence of Mr. Gomez’s assaults against Ms. Lopez was
not admissible as substantive evidence against Ms. Lopez. The trial court, however, ruled
that Mr. Gomez’s counsel “opened the door” to evidence of the assaults by asking Ms. Lopez
if she believed that Mr. Gomez could have hurt their daughter.7

      Even if evidence is inadmissible, a party may “open the door” to admission of that
evidence. A party opens the door to evidence when that party “introduces evidence or takes
some action that makes admissible evidence that would have previously been inadmissible.”
21 Charles Alan Wright et al., Federal Practice & Procedure Evidence § 5039 (2d ed. 1987).

        The most common manner by which a party opens the door to inadmissible evidence
is by raising the subject of that evidence at trial. When a party raises a subject at trial, the
party “expand[s] the realm of relevance,” and the opposing party may be permitted to present
evidence on that subject. 21 Charles Alan Wright et al., Federal Practice & Procedure
Evidence § 5039.1; see also Clark v. State, 629 A.2d 1239, 1242 (Md. 1993) (“The ‘opening
the door’ doctrine is really a rule of expanded relevancy . . . .”).

       Although raising a subject at trial is one manner of opening the door to otherwise
inadmissible evidence, the concept of “opening the door” is “notoriously imprecise.” 21
Charles Alan Wright et al., Federal Practice & Procedure Evidence § 5039. Although the
doctrine arises from the common law tradition of evidence, cf. Roger C. Park et al., Evidence


        7
           Neither party has questioned whether the cross-examination of a defendant on a subject by counsel
for a co-defendant may “open the door” to further cross-examination on that subject by the State. Cf. United
States v. White, 887 F.2d 267, 270 (D.C. Cir. 1989) (“The prosecution may not gain, through the device of
a joint trial, admission against one defendant of otherwise inadmissible evidence on the happenstance that
the door to admitting the evidence has been opened by a co-defendant.”). This issue, as well as others
addressed in this opinion, underscores the difficulty in pursuing joint trials for co-defendants who are
charged with abuse of a child. Neither co-defendant moved for severance in this case. Although we decline
to require the severance of the trials of defendants in similar cases, trial courts should give motions to sever
serious consideration when such motions are made.

                                                      -9-
Law § 1.11 (3d ed. 2011) (describing “curative admissibility” as a common law doctrine),
our Rules of Evidence contain numerous examples by which otherwise inadmissible evidence
may become admissible as a result of the action of a party in the case. For example, if
evidence of prior bad acts of a defendant is inadmissible, the defendant may open the door
to admission of that evidence by putting his character at issue. Tenn. R. Evid. 404(a)(1), (2);
see also Tenn. R. Evid. 405(a). A party may also “open the door” to evidence of a witness’s
truthful character by attacking the reputation of a witness for truthfulness. Tenn R. Evid.
608(a). In short, “opening the door” is an equitable principle that permits a party to respond
to an act of another party by introducing otherwise inadmissible evidence.

       The trial court’s comments prior to the State’s cross-examination of Ms. Lopez
provide insight into the trial court’s ruling that the door had been opened to testimony
concerning Mr. Gomez’s assaults against Ms. Lopez. The trial court stated that by asking
Ms. Lopez if Mr. Gomez could hurt their daughter, Mr. Gomez’s counsel had “ask[ed] her
an opinion on his character.” This statement reflects the trial court’s understanding of Ms.
Lopez’s response as a general statement of Mr. Gomez’s nonviolent nature.

       The trial court’s understanding of Ms. Lopez’s response is further reflected in the trial
court’s comments during the sentencing hearings for both Mr. Gomez and Ms. Lopez. At
Ms. Lopez’s sentencing hearing, the trial court stated, “Ms. Lopez said clearly,
unquestionably, that Mr. GomezSshe didn’t think he would hurt anybody, he would not do
that.” At Mr. Gomez’s sentencing hearing, the trial court stated that Ms. Lopez opened the
door “by clearly saying that Mr. Gomez would not do this, would not hurt anybody.”

       The trial court attached too much significance to Ms. Lopez’s testimony that she did
not believe that Mr. Gomez could hurt his daughter. Contrary to the statements of the trial
court, Ms. Lopez clearly stated that she did not think that Mr. Gomez could have hurt his
daughter. Ms. Lopez did not testify that Mr. Gomez would not hurt anybody. Ms. Lopez did
not make a sweeping claim of Mr. Gomez’s nonviolent nature that would be contradicted by
her knowledge of Mr. Gomez’s prior assaults against her.

       Had Ms. Lopez testified as a character witness for Mr. Gomez, testimony about Ms.
Lopez’s knowledge of Mr. Gomez’s prior violent acts could be admissible pursuant to
Tennessee Rule of Evidence 404(a) to impeach Ms. Lopez. See Tenn. R. Evid. 404(a)(1),
405(a). When evidence of a defendant’s prior bad acts is admitted pursuant to Rule 404(a),
Rule 405(a) provides the procedures that must be followed. In addition, when a trial court
permits cross-examination of a character witness concerning specific instances of a
defendant’s conduct, the trial court must provide an instruction limiting consideration of the
evidence for the purpose of evaluating the character witness’s credibility. State v. Nesbit,
978 S.W.2d 872, 883 (Tenn. 1998). The State did not raise Rule 404(a) as a basis for the

                                              -10-
admission of the evidence, and the trial court, understandably, did not follow the
requirements of Tennessee Rule of Evidence 405(a) for admitting evidence of Mr. Gomez’s
character. Even if the evidence of Mr. Gomez’s prior assaults was admissible to impeach
Ms. Lopez’s knowledge about Mr. Gomez’s character, the evidence would not be admissible
as substantive evidence.

         We next turn to whether the questioning of Ms. Lopez expanded the realm of
relevance and permitted the State to present evidence on the subject of Mr. Gomez’s prior
assaults against Ms. Lopez. The cross-examination of Ms. Lopez by Mr. Gomez’s counsel
initially raised the subject matter of the abuse of the victim and Ms. Lopez’s knowledge and
beliefs concerning the actions of Mr. Gomez. On the basis of this testimony, the State was
permitted to question Ms. Lopez concerning Mr. Gomez’s acts of violence against Ms.
Lopez. The abuse of the parties’ daughter and the assaults against Ms. Lopez involved two
different victims and different incidents. The record does not reflect that Mr. Gomez’s
assaults against Ms. Lopez also injured the victim or put the victim at risk of injury at the
time of the assaults. The subject matter is not the same, and introducing one of these subjects
does not “open the door” by making the other subject relevant. See 21 Charles Alan Wright
et al., Federal Practice & Procedure Evidence § 5039.1; cf. State v. Riels, 216 S.W.3d 737,
746 (Tenn. 2007) (holding that the trial court committed error when it ruled sua sponte that
an expression of remorse for a crime opened the door to cross-examination about the details
of the crime). We therefore conclude that the trial court erred in ruling that the door had
been opened to cross-examination of Ms. Lopez concerning prior occasions when Mr.
Gomez had assaulted her.

       The State, of course, was free to question Ms. Lopez about her knowledge of Mr.
Gomez’s actions toward the victim. The subject of Mr. Gomez’s abuse of the victim was an
element of the offense charged, and the State could cross-examine Ms. Lopez on this subject.
The State fully cross-examined Ms. Lopez concerning her knowledge of Mr. Gomez’s
treatment of the victim. For example, the State questioned Ms. Lopez about a prior incident
in which Mr. Gomez allegedly caused pain to the victim by squeezing an area of the victim’s
leg where she had recently been vaccinated. Ms. Lopez denied that Mr. Gomez had done so.
The State presented a rebuttal witness who said that Ms. Lopez had told her that after the
vaccination, Mr. Gomez had “given [the victim] a little swat on the backside because [the
victim] was crying a lot.”

                                   Curative Admissibility

       A doctrine related to “opening the door” is the doctrine of “curative admissibility,”
which has been described as “fighting fire with fire.” 21 Charles Alan Wright et al., Federal
Practice & Procedure Evidence § 5039. Curative admissibility permits the admission of

                                             -11-
inadmissible evidence by a party in response to the opposing party admitting inadmissible
evidence. 21 Charles Alan Wright et al., Federal Practice & Procedure Evidence § 5039.3.

       In the Court of Criminal Appeals, the State argued that the evidence of Mr. Gomez’s
prior assaults against Ms. Lopez was admissible pursuant to the doctrine of curative
admissibility. On appeal to this Court, the State “concedes that the admissibility of this
evidence is not controlled by the doctrine of curative admissibility” because Ms. Lopez’s
response to the question from Mr. Gomez’s counsel was not inadmissible.8 The need to
admit evidence to “cure” inadmissible evidence did not arise.

       This Court has not expressly adopted the doctrine of curative admissibility. See State
v. Land, 34 S.W.3d 516, 530 n.11 (Tenn. Crim. App. 2000); see also State v. Fullilove, No.
W2009-01113-CCA-R3-CD, 2010 WL 4538122, at *5 (Tenn. Crim. App. Nov. 2, 2010)
(declining to apply the doctrine of curative admissibility). We do not reach the issue of
“curative admissibility” of the evidence that was addressed by the Court of Criminal Appeals,
Gomez, 2010 WL 3528982, at *20-22, and we leave the consideration of this doctrine for a
more appropriate case.

                                               Credibility

        We next consider whether the evidence of the prior incidents of Mr. Gomez’s assaults
against Ms. Lopez was relevant to Ms. Lopez’s credibility, as asserted by the State. To attack
the credibility of a witness, a party may question the witness concerning any matter that has
been fairly raised by the evidence. A party may not introduce a subject that is inadmissible
to attack the credibility of a witness. See State v. West, 844 S.W.2d 144, 149 (Tenn. 1992)
(quoting Hatchett v. State, 552 S.W.2d 414, 415 (Tenn. Crim. App. 1977)).

       We have determined that the door was not opened to evidence concerning the assaults.
The evidence concerning the assaults was not admissible on any other basis asserted by the
State. Prior to Ms. Lopez’s direct testimony, the trial court stated that if Ms. Lopez’s
testimony contradicted her previous statements, she could be cross-examined about those
statements. See Tenn. R. Evid. 613. Ms. Lopez’s testimony that she did not think Mr.




        8
          We observe that appellate review in this case has been made more difficult by the State’s evolving
position as to the grounds for admissibility of the evidence. Abandoning one argument for admission of
evidence in favor of another position that was not considered in the court below is not ideal. Cf. State v.
Leach, 148 S.W.3d 42, 55 (Tenn. 2004) (“[A] party may not litigate an issue on one ground, abandon that
ground post-trial, and assert a new basis or ground on appeal.”).

                                                   -12-
Gomez could hurt their daughter did not contradict the prior statements that Ms. Lopez had
made concerning injuries inflicted on her by Mr. Gomez.9

        Permitting the introduction of an inadmissible subject to impugn the credibility of the
witness would permit the State to “open the door” to its own evidence. See 21 Charles Alan
Wright et al., Federal Practice & Procedure Evidence § 5039.1 (noting that a party cannot
open the door to its own evidence). Ms. Lopez’s credibility on the subject of Mr. Gomez’s
assaults against her would not have arisen but for the improper admission of the evidence
concerning the assaults. We therefore conclude that the trial court erred in permitting the
jury to consider the evidence of Mr. Gomez’s assaults against Ms. Lopez for the purpose of
demonstrating Ms. Lopez’s credibility.

                                            Harmless Error

        Having determined that the trial court improperly admitted the evidence of Mr.
Gomez’s assaults against Ms. Lopez, we consider whether this error was harmless. Errors
in the admission of evidence are normally non-constitutional. State v. Rodriguez, 254
S.W.3d 361, 375 (Tenn. 2008) (citing State v. Powers, 101 S.W.3d 383, 397 (Tenn. 2003)).
Non-constitutional errors are harmful and demand reversal when “considering the whole
record, error involving a substantial right more probably than not affected the judgment or
would result in prejudice to the judicial process.” Tenn. R. App. P. 36(b). The more proof
exceeds what is necessary to support a finding of guilt beyond a reasonable doubt, the less
likely it is that the improperly admitted evidence was harmful. Gilliland, 22 S.W.3d at 274.

       The State produced little evidence demonstrating Ms. Lopez’s involvement in the
crime. The State called witnesses who lived with Mr. Gomez and Ms. Lopez at the time of
the victim’s death, and none of them testified that they had witnessed abuse of the victim.
Instead, these witnesses testified that the victim was happy and healthy. The most damaging
evidence that the State produced against Ms. Lopez was that the fatal injuries were inflicted
on the victim sometime between 10:00 p.m. and 3:00 a.m., a period of time when Mr. Gomez
was present. Ms. Lopez arrived home from work sometime after 12:15 a.m., placing her in
the residence for less than two hours and forty-five minutes of the five-hour window of
opportunity.



        9
          The State has not raised Ms. Lopez’s prior inconsistent statements as a basis for admission of this
evidence. Had the trial court permitted this testimony pursuant to Tennessee Rule of Evidence 613, the
statements would be admissible only to impeach Ms. Lopez, not as substantive evidence, and a limiting
instruction would be required. State v. Reece, 637 S.W.2d 858, 861 (Tenn. 1982); see also State v. Martin,
964 S.W.2d 564, 567 (Tenn. 1998).

                                                    -13-
       Instead of producing evidence that Ms. Lopez participated in the crime, the State
argued that Ms. Lopez “knew the dangers and the risks of [Mr. Gomez’s] behavior, and she
put her child in harm’s way.” As previously described, at the time of the victim’s death,
child endangerment was not a violation of Tennessee Code Annotated section 39-15-401, and
the State encouraged the jury to make an improper decision on this basis.

       The State also used the cross-examination as to Mr. Gomez’s assaults against Ms.
Lopez to introduce conflicting statements by Ms. Lopez concerning the prior assaults. Using
these conflicting statements, the State repeatedly asserted in cross-examination and closing
argument that Ms. Lopez had lied, that she was not credible, and that the lies “reflect[ed]
consciousness of guilt” and “reflect[ed] criminal responsibility.” Ms. Lopez was the only
witness in her defense, and her credibility was essential to her case.

       The admission of the evidence of Mr. Gomez’s prior assaults against Ms. Lopez and
the extensive use of this evidence by the State not only to discredit the only witness for the
defense but also to demonstrate her guilt more probably than not affected the judgment. See
Tenn. R. App. P. 36(b); Gilliland, 22 S.W.3d at 274. We therefore conclude that the trial
court’s admission of the evidence concerning Mr. Gomez’s assaults against Ms. Lopez was
not harmless.

        We vacate Ms. Lopez’s convictions and remand the case for a new trial. Ms. Lopez’s
issue concerning the sufficiency of the evidence is pretermitted. See State v. Cannon, 254
S.W.3d 287, 308-09 (Tenn. 2008) (pretermitting the issue of sufficiency of the evidence in
a case in which the defendant’s conviction was reversed on other grounds and the case was
remanded for a new trial).

                                      III. Conclusion

       The trial court erroneously admitted evidence of Mr. Gomez’s prior assaults against
Ms. Lopez. The erroneous admission of the evidence was not harmless. Accordingly, we
vacate Ms. Lopez’s conviction and remand the case for a new trial. Costs of this appeal are
taxed to the State of Tennessee.




                                                    _________________________________
                                                    JANICE M. HOLDER, JUSTICE




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