TBA Law Blog

Posted by: Robert Hibbett on Aug 21, 2008

Journal Issue Date: Sep 2008

Journal Name: September 2008 - Vol. 44, No. 9

When is wrongfully admitted "other bad act" evidence harmless error? What is the standard for deciding whether the "other bad act" introduction was harmless or the conviction should be reversed for new trial? The Tennessee Supreme Court decided this arcane but important issue in State v. Edwardo Rodriguez, 2008 Tenn. LEXIS 274 (2008).[1] To understand this issue, an examination of the "other purposes" exception to Rule 404(b) is relevant.[2]

The courts have defined the "other purposes" exception to 404(b) excluding the admissibility of other crimes, wrongs and acts ("other bad acts") of the defendant for a very long time. The exceptions have long been "other bad acts" that prove "motive of the defendant, intent of the defendant, the identity of the defendant, the absence of mistake or accident if that is a defense, and, rarely, the existence of a larger continuing plan, scheme, or conspiracy of which the crime on trial is a part." Bunch v. State, 605 S.W.2d 227 at 229 (Tenn. 1980).

The Tennessee Supreme Court has taken a jaundiced look at "other bad act" evidence offered by the prosecution. In State v. Parton, 694 S.W.2d 299 at 303 (Tenn. 1985) the court stated, "When the presence or absence of a particular intent which is necessary to constitute the crime charged is a contested issue, and evidence of a prior crime tends to show that intent, it may render the prior crime admissible." However, if the intent of the defendant is not at issue and the defense has not opened the door, then the evidence of another crime or bad act should be excluded. "Evidence of other offenses is not admissible for the purpose of showing propensity or disposition on the part of the defendant to commit the crime for which he is on trial." Parton, 694 S.W.2d at 303.

The court expanded on the doctrine of showing a nexus between the proffered "bad act" and the exceptions in a child sex abuse case in 1996. In State v. McCary, 922 S.W. 2d 511, at 514 (Tenn. 1996) it was definitively ruled that for "other bad act" evidence to be introduced, the defendant must first raise the issues of motive, intent, identity, absence of mistake or accident, or the existence of a larger continuing plan, scheme, or conspiracy to rebut the state's case or be essential elements that must be proved by the state. Propensity evidence that shows that the defendant is more likely to commit a crime would not be allowed.

Now that we know what "other bad act" evidence is inadmissible, then we can address the issue of whether or not wrongfully admitted evidence is harmless error. The Tennessee Supreme Court opinion in Rodriguez leaves no doubts.

The issue arose out of a child sexual abuse case that was tried in 2003. The facts were fairly straightforward. The defendant was alleged to have had sexual contact and penetration with two nine-year-old boys. At trial, the boys testified that the defendant molested them. A witness also testified that he had seen images of child pornography on Mr. Rodriguez's computer. Defense counsel objected to the witness testimony in a jury out hearing but the court allowed it to be admitted. The defendant was convicted of rape of a child and aggravated sexual battery.

In his appeal to the Court of Criminal Appeals, the defendant contended that the court erred in allowing the testimony concerning child pornography. The court agreed but held "the error in admitting evidence regarding the defendant's viewing of computer pornography qualifies as harmless because there was more than sufficient proof of the defendant's guilt." State v. Rodriguez, 2007 WL 551245, at 6.

Tennessee Supreme Court Justice William C. Koch Jr. wrote the decision reversing the Court of Criminal Appeals and the full court joined in his opinion. In his treatise outlining the history of the doctrine of harmless error, he highlights the importance of the substantive right of a defendant to a fair trial. Although the error of admitting the pornography testimony was nonconstitutional the "crucial consideration is what impact the error may reasonably be taken to have on the jury's decision-making." State v. Rodriguez, 2008 LEXIS 274 at 28. "Where an error more probably than not had a substantial and injurious impact on the jury's decision-making, it is not harmless. [Kotteakos v United States, 328 U.S. 750 at 776 (1946)]." State v. Rodriguez, 2008 Tenn. LEXIS 274 at 28. It is fair to say that in so holding, the court interprets Tenn. R. App. P. Rule 36 (b) to apply to any wrongfully admitted evidence that would more probably than not affect a defendant's substantial right to a fair trial and impact the verdict.[3]

He cautions that labeling wrongfully introduced "other bad act" evidence as "harmless" should be avoided by the courts. In his opinion he targets the quality of the other evidence presented, which was the testimony of the two minor victims. "The harmful effects of propensity evidence that undermines the defendant's credibility increase in close cases when the outcome depends on the jury's assessment of the witnesses' credibility. Errors in admitting evidence are less likely to be harmless in close cases. [Blankenship v. State, 410 S.W.2d 159 at 161 (Tenn. 1966)]" State v. Rodriguez, 2008 Tenn. LEXIS 274 at 42 (Tenn. 2008). "Simply stated, presenting evidence suggesting that the defendant in a child sexual assault case possessed and viewed child pornography for no other purpose than establishing a predilection toward sexually abusing children places a defendant 'in a highly prejudiced posture before the jury' and has 'the effect of converting the trial from an assessment of the charges against {the defendant} to a general inquiry as to his character.' [Staton v. Commonwealth, No. 1362-01-4, 2002 WL 1792094, at *4 (Va. Ct. App. Aug. 6, 2002)]." State v. Rodriguez, 2008 Tenn. LEXIS 274 at 43 (Tenn. 2008).

It is abundantly clear that the Tennessee Supreme Court will not tolerate a wrongfully introduced "other bad act" when there is no physical or circumstantial evidence and the jury must only weigh the creditability of the witnesses. This is especially true in child sexual abuse cases. "Other bad acts" of a sexual nature should never be used in a child sex abuse prosecution unless the act is charged in the indictment.[4]

In summary, Tennessee prosecutors should be wary of introducing "other bad act" evidence unless a specific exception can be articulated. The exception must address a specific issue or element in the case or it should not be allowed. If the "other bad act" comes in and the appellate courts find that it was error, it will not be held as harmless error if it more probably than not affected the verdict or prejudiced the judicial process.


  1. The writer was the prosecuting attorney in this case.
  2. Tennessee Rule of Evidence 404(b) Other Crimes, Wrongs, or Acts.
    Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show action in conformity with the character trait. It may, however, be admissible for other purposes. The conditions which must be satisfied before allowing such evidence are:
    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.
  3. Rodriguez has been cited by the opinion in State v. Rogers, 2008 Tenn. Crim. App. LEXIS 433 (2008) and interprets the holding thus: "when conducting a harmless error analysis pursuant to Tenn. R. App. P. 36(b) the question before the court is whether the admission of the evidence more probably than not affected the verdict or resulted in prejudice to the judicial process." Tenn. R. App. P. 36(b) states:
    1. Effect of Error. A final judgment from which relief is available and otherwise appropriate shall not be set aside unless, 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.
  4. The exception allowing testimony from a sexual abuse victim concerning other sexual acts inside the time span of the indictment still exists. "... that where the indictment charges that sex crimes occurred over a span of time, evidence of unlawful sexual contact between the defendant and the victim allegedly occurring during the time charged in the indictment is admissible. The state, however, must elect at the close of its proof-in-chief as to the particular offense or offenses for which it is seeking a conviction." State v. Rickman, 876 S.W.2d 824 at 828 (Tenn. 1994).

Bobby Hibbett ROBERT "BOBBY" HIBBETT has been an Assistant District Attorney General for the Fifteenth Judicial District since 1989. He is a 1985 graduate of the University of Tennessee College of Law. He is currently the 4th District Governor for the Tennessee Bar Association.