The opinion
06/17/2026
IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT KNOXVILLE
Assigned on Briefs January 21, 2026
STATE OF TENNESSEE v. SCOTT A. STINER
Appeal from the Criminal Court for Union County
No. 5481 Zachary R. Walden, Judge
No. E2025-00538-CCA-R3-CD
STEVEN W. SWORD, J., concurring.
I agree with the majority in affirming the trial court’s judgments and legal
conclusions, save for one issue. I write separately to express my disagreement with the
majority opinion regarding the trial court’s decision to admit evidence of an uncharged
sexual assault of a baby pursuant to Tennessee Rule of Evidence 404(b). I would find that
the introduction of this evidence was in error; however, I would further find that the error
was harmless in these circumstances and would affirm the convictions despite the error.
Rule of Evidence 404(b) is generally a rule of exclusion. State v. Drinkard, 909
S.W.2d 13, 16 (Tenn. Crim. App. 1995). As our supreme court has said,
The rationale behind the general rule is that admission of other wrongs
carries with it the inherent risk of the jury convicting a defendant of a crime
based upon his or her bad character or propensity to commit a crime, rather
than the strength of the proof of guilt on the specific charge. When the
defendant’s prior bad acts are similar to the crime for which the defendant is
on trial, the risk of unfair prejudice is even higher. As this Court has
consistently cautioned, the jury should not “be tempted to convict based upon
a defendant’s propensity to commit crimes rather than . . . evidence relating
to the charged offense.”
State v. Dotson, 254 S.W.3d 378, 387 (Tenn. 2008) (quoting Spicer v. State, 12 S.W.3d
438, 448 (Tenn. 2000)).
Here, the unindicted other bad act was very similar to the offenses on trial, perhaps
even more egregious, if that were possible. The potential for a jury to use such similar
other bad acts as propensity evidence is heightened in such a situation. See State v.
Rickman, 876 S.W.2d 824, 828 (Tenn. 1994). Furthermore, Tennessee has rejected a “sex
crimes exception” to the general rule of exclusion. Id. (citing State v. Burchfield, 664
S.W.2d 284, 287 (Tenn. 1984)). In State v. Rickman, our Supreme Court established a
narrow exception where proof of multiple sex crimes falling within the non-specific time
frame alleged in the indictment may be admitted. Rickman, 876 S.W.2d at 828. However,
Rickman permitted testimony of the child victim concerning abuse upon that particular
victim, not an unnamed third-party victim. Id. at 828-829. The reasoning behind the
Rickman exception is based upon the fact that young victims are frequently unable to
specify the date a particular offense was committed. Id. at 828. Thus, proof regarding the
abuse of a different victim falls squarely outside of the Rickman rationale.
Here, the trial court determined that proof of this incident of abuse was relevant to
establish that the incident created fear in one of the victims and to explain “why there may
be inconsistencies in – or any reporting delay and it – and really just describing the impact
on the victim and everything else. Further, it’s also going to corroborate some of what
[Carissa] Rudd will testify to, which the State probably needs that.” However, the victim
testified to being scared for reasons beyond witnessing the penetration of the baby,
including being taken away from her mother if she disclosed that the Defendant sexually
abused her. Such cumulative evidence further reduces the probative value of this
testimony.
I would find that the trial court abused its discretion in admitting evidence of the
abuse of the baby in that the danger of unfair prejudice outweighed the probative value of
the evidence toward the stated material issue. See Tenn. R. Evid. 404(b)(4) (“The court
must exclude the evidence if its probative value is outweighed by the danger of unfair
prejudice.”). The abuse of the baby provided very little probative value to the issues
presented in the trial. On the other hand, proof of a separate act of sexual penetration on
an infant victim not named as a victim in the indictment carries a great danger that the jury
could use proof of this horrendous act to convict the Defendant based upon his character.
However, as stated above, I would further find that this error was harmless in light of the
strong evidence of guilt in this case. Nonconstitutional errors such as this are subject to
harmless error analysis under Tennessee Rule of Appellate Procedure 36(b). See State v.
James, 81 S.W.3d 751, 763 (Tenn. 2002). The defendant bears the burden of showing that
the error “more probably than not affected the judgment or would result in prejudice to the
judicial process.” Tenn. R. App. 36(b). In light of all of the other evidence in the trial, it
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does not appear that the admission of this evidence affected the result of the trial on the
merits. Thus, I concur in affirming the judgments of the trial court.
s/ Steven W. Sword_________
Steven W. Sword, Judge
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