Other Crimes as Contextual Background Evidence

For several decades I have read every opinion filed by our appellate courts. The most horrific is State v. Evangeline Combs and Joseph D. Combs (Tenn. Ct. Crim. App., Woodall, Sept. 25, 2002), perm. app. denied Jan. 27, 2003.

Esther Combs was taken at age five months by the defendants from a children's home in Indiana under guise that she would be adopted; no adoption took place. Joseph Combs purported to be a "pastor." Joseph and Evangeline roamed the country with Esther and five other children. They settled in Bristol, where Joseph preached at Emanuel Baptist Church. The family lived in squalor in the fellowship hall.

On Feb. 18, 1997, Esther (age 19) was found poisoned by antifreeze in a suicide attempt. She recovered, and she told her life story of slavery. Her evil "parents" tortured her from the beginning. I have read Judge Woodall's 86-page opinion several times. I have also reviewed the trial transcript and exhibits. One can only wonder how humans could treat another human so badly.

A presentment charged Joseph and Esther Combs with kidnapping, assault, rape and child abuse. Prosecution proof included other crimes and wrongs uncharged. The trial court admitted them, and the appellate court affirmed, on the theory that they were contextual background evidence. Relying on State v. Gilliland, 22 S.W.3d 266 (Tenn. 2000), the Court of Criminal Appeals held that such other crimes and wrongs were admissible because their absence would create a void and cause jury confusion and probative value outweighed prejudice.

State witness Dr. Gretel Harlan, a forensic pathologist, testified that Esther had 410 scars. In her 24 years of practice she had never seen so many on one person's body.

The Combses were convicted and will die in prison. Good. Esther has changed her name to Elsa Rachel Garcia. My inquiries indicate she is doing well given the circumstances. Very good.


Donald F. Paine DONALD F. PAINE is a past president of the Tennessee Bar Association and is of counsel to the Knoxville firm of Paine, Tarwater, and Bickers LLP. He lectures for the Tennessee Law Institute, BAR/BRI Bar Review, Tennessee Judicial Conference, and UT College of Law. He is reporter to the Supreme Court Advisory Commission on Rules of Practice and Procedure.