State v. Tizard

897 S.W.2d 732 (Tenn. Crim. App. 1994)



Tenn. R. Evid. 404 provides, in part: (a) Character Evidence Generally. Evidence of a person's character or a trait of character is not admissible for the purpose of proving action in conformity with the character or trait on a particular occasion, except: (1) Character of Accused. Evidence of a pertinent character offered by the accused or by the prosecution to rebut the same. (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.


Defendant was convicted by the trial court of two counts of sexual battery by means of fraud. The trial court excluded the contents of the items from the jury's view but allowed the testimony about the nature of their contents. Defendant appealed citing numerous alleged errors. Defendant stated that the issue of primary concern dealt with the admission into evidence of, and prosecution argument about, videotapes and a booklet found in defendant's possession that depicted sexually explicit acts between males and of defendant's statement that his roommates were possibly bisexual. The appellate court reversed the judgment and remanded defendant's convictions.


Was the admission into evidence of sexually explicit videotapes and a booklet found in defendant's possession unrelated to the offenses proper?




The improper admission of sexually explicit evidence unrelated to the offenses was reversible error. The erroneous admission of such evidence more probably than not affected the verdict. There was a substantial risk that the jury relied upon the questioned evidence and decided the issue of defendant's guilt based partly upon defendant's propensity or character trait inferentially proven regarding homosexuality.

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