Generally, evidence of other crimes or bad acts is not admissible in a criminal trial in Tennessee when its only purpose would be to prove conforming conduct (under the reasoning that a jury should consider only the offense charged and not other bad things the accused may have done). However, it may admissible if relevant for other reasons … such as to establish motive, a common scheme or plan, identity, or absence of mistake or accident. Upon request by the objecting party, a trial court should hold a jury out hearing to determine the admissibility of the evidence in question. In the recent case of State v. Grimes, W2014-00786-CCA-R3-CD (Tenn.Crim.App. 6-26-2015), the Tennessee Court of Criminal Appeals, in a split decision, affirmed a conviction for aggravated sexual battery despite the introduction of evidence of other crimes or bad acts not charged in the indictment and which occurred outside the jurisdiction of the trial court.

In the Grimes case, the trial testimony included allegations of criminal acts by the accused against the child victim which allegedly occurred outside the jurisdiction of the trial court. As these acts were not the criminal acts charged at trial, they would only be admissible if relevant for some other reason than proving the defendant’s bad character or his propensity to sexually abuse the victim. The defendant’s trial counsel objected to the evidence but did not argue the specific evidentiary rule pertaining to evidence of other crimes or bad acts and did not request the jury-out hearing. Because counsel did not raise the specific rule or request the hearing for the trial court to make findings pursuant to that rule, the panel majority (two judges out of three) determined that the defendant had waived appellate review of the issue and that the trial court conclusion that the evidence was probative of motive will remain unchallenged.

This was a split decision. One Court of Criminal Appeals judge on the three judge panel wrote a dissent, stating she favored granting a new trial under the circumstances, finding the admission of the evidence in question to be plain error. There remains a possibility of further review of this particular issue by the state Supreme Court.

For more information on when evidence of other crimes or bad acts may be used in a criminal trial, contact The Lanzon Firm.