State of Tennessee v. Joshua Travis Griffith

07/08/2021

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT NASHVILLE

February 10, 2021 Session

STATE OF TENNESSEE v. JOSHUA TRAVIS GRIFFITH

Appeal from the Circuit Court for Warren County

No. 18-CR-2044 Larry B. Stanley, Jr., Judge

No. M2020-00521-CCA-R3-CD

A Warren County jury convicted the Defendant, Joshua Travis Griffith, of three counts of

aggravated statutory rape, and the trial court sentenced him to a total effective sentence of

three years. On appeal, the Defendant contends that the trial court: (1) erroneously

allowed the State to present evidence outside the scope of the indictment, as well as

evidence of his transmission of hepatitis B to the victim, which should have been excluded

pursuant to Tenn. R. Evid. 404(b); (2) erroneously failed to declare a mistrial after the

State’s motion to amend the indictment in the presence of the jury; and (3) erroneously

failed to grant his motion for judgments of acquittal. He lastly contends that the

cumulative effect of the errors violated his right to a fair trial. After review, we conclude

that errors occurred during trial; however, consistent with our conclusion that those errors

were harmless, the trial court’s judgments are affirmed.

Tenn. R. App. P. 3 Appeal as of Right; Judgments of the Circuit Court Affirmed

ROBERT W. WEDEMEYER, J., delivered the opinion of the Court, in which JOHN EVERETT

WILLIAMS, P.J., and ROBERT L. HOLLOWAY, JR., J., joined.

John Partin, District Public Defender; Ricky L. Stacy (at trial), Assistant Public Defender,

McMinnville, Tennessee; and Brennan M. Wingerter (on appeal), Assistant Public

Defender, Franklin, Tennessee, for the appellant, Joshua Travis Griffith.

Herbert H. Slatery III, Attorney General and Reporter; T. Austin Watkins, Assistant

Attorney General; Lisa S. Zavogiannis, District Attorney General; Thomas J. Miner,

Assistant District Attorney General, for the appellee, State of Tennessee.

OPINION

I. Background and Facts

This case arises from the Defendant’s multiple instances of sexual contact with the

victim, a seventeen-year-old girl. The Defendant was a friend of the victim’s uncle and

age thirty-seven at the time he engaged in multiple sexual acts with the victim. For these

offenses, a Warren County grand jury indicted the Defendant for three counts of aggravated

statutory rape “between the dates of March 1, 2017 and September 1, 2017[.]”

A. Trial

Prior to trial, the Defendant filed a motion to exclude evidence, pursuant to

Tennessee Rules of Evidence 401, 402, 403, and 404(b), of his transmission of hepatitis B

to the victim, on the grounds that the evidence was irrelevant and prejudicial because the

Defendant had admitted to law enforcement that he had engaged in sexual acts with the

victim. The trial court heard arguments on the motion and concluded that the evidence

was relevant and that the probative value “substantially” outweighed the potential

prejudicial effect on the Defendant.

The following evidence was then presented at the Defendant’s trial: Trina Holder,

the victim’s mother, testified that the victim was seventeen years old in August of 2017;

her seventeenth birthday was in May of 2017. She testified that the victim had been

diagnosed with having “anxiety,” “a hoarding tendency,” and schizophrenia, and that the

victim had a specialized education plan in school. Ms. Holder testified that the victim

received medical treatment for her conditions, including receiving treatment from a

psychiatrist.

Ms. Holder testified that the Defendant was friends with Ms. Holder’s brother and

also that the Defendant lived close to Ms. Holder’s mother, the victim’s grandmother. She

testified that, in summer and early fall of 2017, the victim visited her grandmother at her

grandmother’s residence, as often as every other weekend, and spent the night there. Ms.

Holder testified that in May of 2018, prior to the victim turning eighteen, she took the

victim to the doctor for some blood work, after which it was revealed that the victim had

contracted hepatitis B. This prompted Ms. Holder to contact law enforcement on the

victim’s behalf.

The victim testified that she was nineteen years old at the time of trial, had recently

married, and was living in North Dakota. The victim testified that she had been

acquainted with the Defendant, who was a friend of her uncle’s. The Defendant lived

within walking distance of her grandmother’s home, and the victim met the Defendant in

August 2017 when she went with her uncle to the Defendant’s house. She recalled this

first meeting was in August because it was around the time of the Defendant’s birthday.

The victim had “heard” about the Defendant prior to their meeting but was sure they were

not introduced until August of 2017. The Defendant, upon meeting her, told the victim

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she was “beautiful and gorgeous” and to contact him when she turned eighteen. The

victim recalled that her uncle told the Defendant her age at the time. The victim’s uncle

said, “That’s my niece, and she’s only 17.”

The victim testified that she went back to the Defendant’s house the next day after

their first meeting. She asked the Defendant if his compliments about her beauty were

true, and, before the victim left, she and the Defendant kissed. The next time she saw the

Defendant, she performed oral sex on him. This occurred in her grandmother’s shed

behind her house because the victim was “scared” to have sex at the Defendant’s house.

She testified that the Defendant ejaculated on her chest. She clarified that she was

seventeen years old at the time. The victim testified that an incident happened a “second

time,” when she walked to the Defendant’s house and again, they went to her

grandmother’s shed. The victim performed oral sex on the Defendant, and then they had

vaginal intercourse. A “third time,” the victim and the Defendant had anal sex in her

grandmother’s shed. She testified that they had “planned” to have anal sex and that she

brought a lubricant with her to the shed so “it wouldn’t hurt.” The victim testified that the

Defendant put the lubricant on his penis and on her anal area. She testified that he

ejaculated inside her. The victim stated that she was seventeen years old when the second

and third incidents occurred.

The victim testified that she told her two cousins about what had happened but

waited to tell her mother. She also waited to tell her grandmother and testified that this

was because she was scared and thought that what she and the Defendant were doing might

be illegal. The victim recalled her 2018 visit to the doctor and said she was nervous

because of what the Defendant might have transmitted to her. The victim had heard from

her grandmother that the Defendant had a “disease.” After the results of the blood tests

came back, the victim told her grandmother and her mother everything that had happened.

They contacted the sheriff’s department and the Child Advocacy Center (“CAC”). The

victim recalled talking to someone at the CAC and testified that she had told the center

worker about the same events with the Defendant. It appears from the record that the

victim was interviewed at the CAC and that the State obtained a copy of the recorded

interview. The interview was referred to at trial, and the Defendant and the victim each

made reference to watching the recording, but it was not introduced or shown at trial.

The victim recalled that the Defendant told her that they needed to be “careful”

because of her age. The victim was in high school at the time but did not remember

revealing that fact to the Defendant.

On cross-examination, the victim agreed that she went to his house “numerous

times” and that she initiated contact with him each time. She agreed that she was the one

who contacted the Defendant after their August 2017 meeting, and that the Defendant had

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told her to “reach out” when she turned eighteen. She agreed that the Defendant had no

way of contacting her.

On cross-examination, the following exchange occurred between the victim and

defense counsel:

Defense: Well, you’ve testified about three particular times where you had

sexual contact with [the Defendant], right?

Victim: Yes, but there was more than that but from what I got, those three

were the important ones.

Defense: Okay. I’m not sure I understand you.

Victim: . . . from what I got from [the prosecutor], he said those were the

three important ones.

Defense: So you’re saying there are other times that you had sex with [the

Defendant]?

Victim: Yes.

The victim did not know exactly when the three incidents occurred, but she

remembered that the second incident was several weeks but less than a month after the first

incident in August of 2017. She reiterated that the first incident occurred “around his

birthday,” which she knew was in August around the time of the total solar eclipse. She

could not recall when the third incident occurred. The victim testified that she spent time

with the Defendant outside of their sexual encounters and that the Defendant bought her

gifts. The victim agreed that she did not tell anyone about the Defendant’s comments

regarding her age. She also agreed that she denied being sexually active at the 2018

doctor’s appointment because she did not want to get in trouble. She agreed that she was

“sneaking around” with the Defendant.

The victim reiterated that she had been interviewed by a worker at the CAC and

agreed that she never told the interviewer about the Defendant’s comment regarding her

age or that he did not know she was a minor. The victim testified that she did not tell

everything to the CAC interviewer.

On redirect-examination, the victim testified that the sexual encounters continued

until March of 2018. The victim stated that she turned eighteen in May of 2018. The

victim testified that she watched the CAC interview the day before trial and identified

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several things she had not stated during the interview; the victim did say, however, that she

told the interviewer about “all the times” she and the Defendant had sex, which she testified

was “every other weekend.” She agreed that the prosecutor had asked her to testify to

three instances.

At this point the State made an oral motion in front of the jury “to include the time

period through March of 2018.” The Defendant objected, and the jury was removed from

the courtroom. The State restated its request that “the indictment be amended to conform

to the proof which went in without objection that [the victim] was having sex with [the

Defendant] as late as March of 2018. The Defendant restated his objection to amending

the indictment and also moved for a mistrial on the basis that the State had made the request

in front of the jury. The Defendant argued that an indictment could not be amended after

jeopardy had attached and argued that he had been put on notice by the indictment of sexual

encounters that occurred between March and September of 2017. The Defendant stated

that, in preparation for trial, he had sought to clarify the timeline of the offenses, and the

State had assured him that the timeline in the indictment was correct. The Defendant

argued that the conduct testified to outside of the indictment’s time period was barred by

Tennessee Rule of Evidence 404(b). The State responded that the law surrounding sexual

offenses, particularly involving children, allowed for some leeway with regard to dates,

hence the principle of election of offenses. Thus, the State argued, and in light of the

victim’s testimony regarding her multiple instances of sexual contact with the Defendant,

it was up to the State to elect which of these offenses it wanted to rely on to convict the

Defendant.

The trial court agreed with the State’s argument but denied the motion to amend the

indictment and left it up to the jury to determine the time frame of the events and whether

they occurred within the time frame listed in the indictment. The trial court also denied

the motion for a mistrial. The jury returned to the courtroom without further instruction

concerning the State’s motion to amend that they had heard.

Shawn Bell, the victim’s uncle, testified that he lived with his mother, the victim’s

grandmother, down the road from the Defendant. Mr. Bell recalled taking the victim with

him to visit the Defendant. He testified that the Defendant was “hitting on” the victim,

telling her she looked good, and that the Defendant “would like to have some of that.” Mr.

Bell was upset by this and, after telling the Defendant to stop, he left with the victim. Mr.

Bell said, “Don’t be saying that to [the victim], . . . she’s underage.” Mr. Bell testified

that the Defendant “knew” the victim was underage and that Mr. Bell told the Defendant

that the victim was still in high school. The Defendant and Mr. Bell had known each other

a long time and gone to the same school; as a result, the Defendant “knew every member”

of Mr. Bell’s family.

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After learning that the victim had contracted hepatitis B, Mr. Bell went to the

Defendant’s house to confront him. The Defendant, upon seeing Mr. Bell, ran inside his

house, locked his doors, and screamed, “I’m sorry.”

Betty Bell, the victim’s grandmother, testified that the victim visited her home often

in 2017. At some point, the victim told Ms. Bell about a sexual relationship with the

Defendant. Ms. Bell later spoke to the Defendant, and he agreed that he had engaged in

sexual acts with the victim; he also admitted to transmitting hepatitis to the victim.

Jason Rowland testified that he worked for the Warren County Sheriff’s Office and

investigated the complaint against the Defendant. Deputy Rowland arranged for the

victim to be interviewed at the CAC, and he later reviewed the recording of the interview.

Deputy Rowland then contacted the Defendant and spoke to him on August 20, 2018, at

which point the Defendant provided a statement. The signed statement read as follows:

Shawn Bell, [the victim’s] uncle, brought her to my home. We

became friends. I bought her some shoes and clothes because she said that

the kids would make fun of her. She bought me things, too. At some point

in time this became sexual. Holly brought her to my home on her 18th

birthday. This was the last time I saw her. The first time we had sex was

a couple of months before her 18th birthday. We had sex less than five times.

She came onto me is how this turned sexual. I do have hepatitis B, but I do

not have any other STDs. I don’t know how she got anything else.

Everything we done was consensual. I didn’t force sex on her. She knew

what she was doing. We had anal sex. She wanted to do everything we

had done. She had other men coming in and out of the house while [Mr.

Bell] and [her grandmother] were working. She said she was having sex

with them.

On cross-examination, Deputy Rowland testified that it was his understanding that

the sexual contact between the victim and the Defendant took place between March and

September 2017; this was based on information received from the victim and her family.

At this point, the Defendant moved for judgments of acquittal as to Counts 2 and 3

of the indictment because they were “materially at odds with the time frame alleged in the

indictment.” The trial court denied the motion stating that there was sufficient evidence

as to those counts if the jury chose to believe the victim’s time frames.

The Defendant testified that he did not know that the victim was of minor age when

they engaged in their sexual relationship. He agreed that he met the victim for the first

time in August of 2017. He recalled complimenting the victim’s looks on that date and

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that he asked her to be in touch when she turned eighteen. The Defendant stated that the

victim contacted him after their initial meeting, and every other time after that, which led

to them engaging in a sexual relationship.

The Defendant disputed the victim’s timeline as to when they engaged in sexual

activity after their August 2017 meeting. The Defendant testified that they engaged in

sexual activity just over two months before the victim’s eighteenth birthday but that, at the

time, he did not think she was underage. The Defendant recalled that, when the victim

came to his house, she asked what present he had gotten her for her birthday. This led him

to believe she had turned eighteen.

The Defendant testified that the victim came to him to have sex and that he assumed

she had turned eighteen, but he agreed that he did not make any attempt to verify her age.

Based on this evidence, the jury convicted the Defendant of three counts of

aggravated statutory rape. The trial court held a sentencing hearing and imposed

concurrent three-year sentences for each of the convictions for an effective sentence of

three years of incarceration. It is from these judgments that the Defendant now appeals.

II. Analysis

On appeal, the Defendant contends that evidence of his and the victim’s multiple

sexual encounters, which occurred outside the time period listed in the indictment, should

have been excluded pursuant to Tennessee Rule of Evidence 404(b). He also claims that

evidence of his transmission of hepatitis B to the victim should have been excluded

pursuant to Rule 404(b). He further argues that there is a manifest necessity for a mistrial

because the State’s oral motion to amend the indictment was made in the presence of the

jury. Finally, he contends that the trial court should have granted his motion for judgments

of acquittal. The State responds that the Defendant “opened the door” during cross-

examination of the victim for the admission of their multiple sexual encounters that

occurred outside the scope of the time frame in the indictment. The State further responds

that the hepatitis B evidence was properly admitted and that no manifest necessity for a

mistrial was created by the State’s oral motion to amend the indictment in the jury’s

presence. The State responds that the Defendant’s motion for judgments of acquittal was

properly denied.

A. 404(b) Evidence

1. Uncharged Sex Acts

The Defendant contends that the trial court erred when it allowed the State to present

evidence of uncharged sex acts that took place outside the time period listed in the

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indictment, March 1, 2017 through September 1, 2017. The Defendant argues that the

victim’s testimony about sexual acts that occurred in late fall of 2017 and into 2018 was

improper admission of evidence, in violation of Tennessee Rule of Evidence 404(b),

because those acts were not charged in the indictment and constituted propensity evidence,

or other “bad acts.” He contends that there was a clear danger of unfair prejudice to him

because the uncharged acts were similar to the crimes for which he was on trial. The State

responds that the evidence came in through the victim’s testimony on cross-examination,

and thus the Defendant “opened the door” to the evidence. For reasons set forth in our

opinion, we agree with the Defendant that the evidence should have been excluded

pursuant to Rule 404(b); however, in light of the overwhelming evidence against the

Defendant, we conclude that the error was harmless.

Generally, “[a]dmission of evidence is entrusted to the sound discretion of the trial

court, and a trial court’s ruling on evidence will be disturbed only upon a clear showing of

abuse of discretion.” State v. Robinson, 146 S.W.3d 469, 490 (Tenn. 2004). The

Tennessee Rules of Evidence provide that all “relevant evidence is admissible,” unless

excluded by other evidentiary rules or applicable authority. Tenn. R. Evid. 402. Of

course, “[e]vidence which is not relevant is not admissible.” Id. Relevant evidence is

defined as evidence “having any tendency to make the existence of any fact that is of

consequence to the determination of the action more probable or less probable than it would

be without the evidence.” Tenn. R. Evid. 401. Even relevant evidence, however, “may

be excluded if its probative value is substantially outweighed by the danger of unfair

prejudice, confusion of the issues, or misleading the jury, or by considerations of undue

delay, waste of time, or needless presentation of cumulative evidence.” Tenn. R. Evid.

403.

“Evidence of other crimes, wrongs, or bad acts is not admissible to prove the

character of a person in order to show action in conformity with that character trait. Tenn.

R. Evid. 404(b). Such evidence may be admissible, however, for “other purposes.” Id.

Our supreme court has determined that such “other purposes” include demonstrating

motive or intent. State v. Berry, 141 S.W.3d 549, 582 (Tenn. 2004). Such evidence is

admissible for other purposes, provided that the trial court: (1) upon request, holds a

hearing outside the jury’s presence; (2) determines that a material issue exists other than

conduct conforming with a character trait and, upon request, states the basis for its

determination; (3) finds proof of the other crime, wrong, or act to be clear and convincing;

and (4) determines that the probative value of the evidence is not outweighed by the danger

of unfair prejudice. Tenn. R. Evid. 404(b).

In short, the safeguards in Rule 404(b) ensure that defendants are not convicted for

charged offenses based on evidence of other crimes or acts, as in the present case, the other

instances of sexual contact other than the three alleged in the indictment. State v. James,

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81 S.W.3d 751, 758 (Tenn. 2002). When a trial court substantially complies with the

procedural requirements of Rule 404(b), the standard of appellate review of the trial court’s

decision is abuse of discretion. See State v. Powers, 101 S.W.3d 383, 395 (Tenn. 2003);

James, 81 S.W.3d at 759. If the strict requirements of the rule are not substantially

observed, the reviewing court gives the trial court’s decision no deference. State v.

DuBose, 953 S.W.2d 649, 652 (Tenn. 1997).

Relevant here, evidence of a defendant’s other acts may be subject to exclusion

under Rule 404(b) until the defendant “opens the door” to the evidence by introducing

other evidence or through cross-examination of a State’s witness. See NEIL P. COHEN ET

AL., TENNESSEE LAW OF EVIDENCE § 4.04[8] [j] (6th ed. 2010). “Opening the door”

“expand[s] the realm of relevance,” and the opposing party may be permitted to present

evidence on that subject. 21 CHARLES ALAN WRIGHT ET AL., FEDERAL PRACTICE &

PROCEDURE EVIDENCE § 5039.1. Our supreme court recently addressed the concept of

“opening the door” and its impact on the fundamental fairness of a trial in State v. Vance,

596 S.W.3d 229 (Tenn. 2020) (distinguishing the doctrine of opening the door with the

doctrine of curative admissibility). Our supreme court explained that “opening the door

is a doctrine intended to serve fairness and truth-seeking.” Id. at 250 (citations omitted).

After a party has “opened the door,” the remedy sought by the opposing party should be

both relevant and proportional. Id. at 250-51. The “remedy,” allowing otherwise

inadmissible evidence to be introduced by the opposing party, should be limited to that

necessary to correct a misleading advantage created by the evidence that opened the door.

Id. at 251 (citation omitted). Our supreme court stated:

The doctrine of opening the door cannot . . . be subverted into a rule

for injection of prejudice. . . . The trial court must carefully consider

whether the circumstances of the case warrant further inquiry into the subject

matter, and should permit it only to the extent necessary to remove any unfair

prejudice which might otherwise have ensued from the original evidence. . .

. [I]n making its determination, the trial court should balance the harm to

the [S]tate in restricting the inquiry with the prejudice suffered by the

defendant in allowing the rebuttal.

Id. (quoting State v. Phillips, 927 A.2d 931, 943 (2007)).

The Defendant complains of the victim’s testimony about multiple sexual

encounters with the Defendant that occurred outside the indictment’s time period. As

detailed in the facts, defense counsel asked the victim to clarify her testimony about the

“three important” times she and the Defendant had sex; defense counsel asked, “So you’re

saying there are other times that you had sex with [the Defendant]?” and the victim replied,

“Yes.” The State, on redirect-examination, went on to solicit more testimony from the

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victim that she and the Defendant had sex “every other weekend” and then sought to amend

the indictment based on this testimony. The Defendant made objections at several points

to this evidence of additional sexual acts, and requested a jury-out hearing, all of which

were overruled or denied.

We first conclude that the trial court failed to substantially comply with the

requirements for admitting this type of “propensity” evidence, typically excluded by Rule

404(b), because no hearing was held to address: what material issue existed other than

conduct conforming with a character trait; the clear and convincing evidence of the other

crime, wrong, or act; and whether the probative value of the evidence was outweighed (or

not) by the danger of unfair prejudice . See T.R.E. 403, 404(b). Without the trial court’s

substantial compliance to the Rule 404(b)’s requirements, we review the admission of this

particular evidence de novo. DuBose, 953 S.W.2d at 652.

Upon review, we conclude that the evidence was admitted in error. While the

victim testified about these additional sex acts outside the indictment on cross-examination,

the State should not then have been afforded leeway to further explore these instances on

re-direct examination. This was not a “proportional response” to the victim’s inadmissible

testimony and did not create a need for the State to remedy any error. To allow the State

to continue to question the victim about these inadmissible acts flies in the face of the

underlying purpose of the doctrine of “opening the door,” because her testimony on cross-

examination did not create an unfair advantage that needed to be countered by the State.

The trial court erred when it allowed further testimony about these sexual encounters that

allegedly occurred outside the scope of the time frame in the indictment. In our review of

this Rule 404(b) issue, conducted de novo, we conclude that no material issue existed, other

than propensity, and that any probative value of the evidence was clearly outweighed by

the danger of unfair prejudice. In light of this, we now turn to consider whether the trial

court’s error in allowing this evidence was harmless.

The harmless error doctrine recognizes that the central purpose of a criminal trial is

to decide factual questions of a defendant’s guilt or innocence, and it promotes the public’s

respect for the criminal process by focusing on the underlying fairness of the trial rather

than technicalities or “the virtually inevitable presence of immaterial error.” State v.

Rodriguez, 254 S.W.3d 361, 366 (Tenn. 2008). Improperly admitted evidence is reviewed

under a non-constitutional harmless error analysis. State v. Jeff Carter, No. 2009-02399-

CCA-R3-CD, 2010 WL 5343212, at *13 (Tenn. Crim. App. Dec. 16, 2010), no perm. app.

filed (citing State v. Powers, 101 S.W.3d 383, 397 (Tenn. 2003)). Under this analysis, a

defendant must demonstrate “that the error ‘more probably than not affected the judgment

or would result in prejudice to the judicial process.’” Rodriguez, 254 S.W.3d at 371-72

(quoting Tenn. R. App. P. 36(b)).

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When assessing the impact of a non-constitutional error, appellate courts must

review the record as a whole, considering properly admitted evidence of the defendant’s

guilt. Id. at 372 (citing Gilliland, 22 S.W.3d at 274). “The greater the amount of

evidence of guilt, the heavier the burden on the defendant to demonstrate that a non-

constitutional error involving a substantial right more probably than not affected the

outcome of the trial.” Id. (citing Toliver, 117 S.W.3d at 231; State v. Francis, 669 S.W.2d

85, 91 (Tenn. 1984)). Whether an error was harmless “does not turn upon the existence

of sufficient evidence to affirm a conviction or even a belief that the jury’s verdict is

correct.” Id. Instead, appellate courts must determine what impact the error may have

had on the jury’s decision-making. Id.

Here, the evidence of the Defendant’s guilt was overwhelming. In a statement

given to law enforcement, the Defendant admitted to having sexual contact with the victim

when she was still a minor. The victim confirmed this, as did her grandmother and her

uncle, both of whom testified that they were made aware of the Defendant and the victim’s

sexual relationship. The Defendant also admitted to the victim’s uncle that the sexual

contact had occurred and that he was remorseful. In light of this evidence, based on our

careful review of the record as a whole, and in consideration of the properly admitted

evidence of the Defendant’s guilt, it is our conclusion that this error was harmless. We

conclude that the jury’s decision-making was impacted minimally, if at all, by the trial

court’s error.

2. Hepatitis B

The Defendant also contends that the trial court abused its discretion when it

allowed the victim to testify about the Defendant transmitting hepatitis B to her. He

contends that this evidence was irrelevant and highly prejudicial and was admitted in

violation of Rule 404(b). The State responds that the trial court did not abuse its discretion

when it admitted the evidence, pursuant to a proper weighing at the requisite pre-trial

hearing. Again, we agree with the Defendant that this evidence was admitted in error,

however, we conclude the error was harmless.

Prior to trial, the trial court heard arguments from both parties regarding the State’s

request to introduce the evidence that the Defendant had sexually transmitted hepatitis B

to the victim. The Defendant sought to exclude it as a prior bad act pursuant to Rule

404(b) and as irrelevant. The State responded that having hepatitis was “not a bad act”

and the fact that the Defendant admitted to having it had “considerable bearing” on the

proof and “the jury’s understanding” of the case, because the victim did not disclose the

sexual contact until after she learned she had contracted the disease. The State further

argued that the Defendant’s admission to having the disease corroborated the victim’s

testimony. The trial court considered both arguments and found that the evidence was

relevant and that its probative value outweighed any prejudice to the Defendant.

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We initially conclude that the trial court did not substantially comply with the

requisite standards of admission pursuant to Rule 404(b) (stating that a trial court must: (1)

upon request, hold[] a hearing outside the jury’s presence; (2) determine[] that a material

issue exists other than conduct conforming with a character trait and, upon request, state[]

the basis for its determination; (3) find[] proof of the other crime, wrong, or act to be clear

and convincing; and (4) determine[] that the probative value of the evidence is not

outweighed by the danger of unfair prejudice). The trial court held a hearing as required

but failed to articulate that the evidence of the transmission of a sexually transmitted

disease was being submitted for any purpose other than to prove a “bad act” and show that

the victim and the Defendant had sexual intercourse. The trial court similarly failed to

articulate that the Defendant’s transmission of hepatitis B to the victim was established by

clear and convincing evidence. Finally, the trial court seemingly concluded that the

probative value of the evidence outweighed its prejudicial value without conducting the

actual process of weighing the two considerations. Without substantial compliance to the

safeguards required by Rule 404(b), we review the admission of this evidence de novo.

DuBose, 953 S.W.2d at 652.

Our de novo review leads us to conclude that evidence of the Defendant’s hepatitis B

was inadmissible. The act of exposing another individual to the hepatitis B virus, without

their knowledge and, as relevant here, through intimate contact, is a crime. T.C.A. § 39-

13-109(a)(1) (2019). The State’s argument at the hearing that the disease was not a “bad

act” is simply untrue. Absent a proscribed reason to admit evidence of this crime, we

conclude that it should have been excluded pursuant to Rule 404(b) because it was highly

prejudicial to the Defendant. As there was no question about whether the sexual acts

occurred, the evidence of the sexually transmitted disease did not aid the jury in making

this determination, or any other fact in question. Furthermore, it created the danger of

painting the Defendant in a bad light. Tenn. R. Evid 403. Accordingly, this evidence

was admitted in error.

Again, in light of the evidence of the Defendant’s guilt, we further conclude that

this error was harmless. We reiterate that “[t]he greater the amount of evidence of guilt,

the heavier the burden on the defendant to demonstrate that a non-constitutional error

involving a substantial right more probably than not affected the outcome of the trial.”

Rodriguez, 254 S.W.3d at 372. While the admission of the evidence was in error, we

cannot conclude that it more probably than not affected the outcome of the trial, in light of

the Defendant’s statement to law enforcement and the Defendant’s testimony admitting to

have sexual contact with the seventeen-year-old victim, corroborated by the victim’s

testimony, as well the testimony of several additional witnesses.

B. Motion for a Mistrial

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The Defendant contends that the trial court should have granted a mistrial following

the State’s oral motion, in the presence of the jury, to amend the indictment following the

evidence of sexual acts outside the indictment’s time period. The State responds that the

Defendant has not shown that there a manifest necessity for a mistrial. We agree with the

State.

“The purpose of declaring a mistrial is to correct damage done to the judicial process

when some event has occurred which precludes an impartial verdict.” State v. Welcome,

280 S.W.3d 215, 222 (Tenn. Crim. App. 2007). A mistrial should be declared only upon

a showing of manifest necessity, that is, when a miscarriage of justice would result if the

trial were to continue. State v. Banks, 271 S.W.3d 90, 137 (Tenn. 2008). The appellant

bears the burden of establishing manifest necessity. State v. Williams, 929 S.W.2d 385,

388 (Tenn. Crim. App. 1996). The decision to grant a mistrial lies within the sound

discretion of the trial court. State v. Saylor, 117 S.W.3d 239, 250 (Tenn. 2003).

We have concluded that evidence of additional sexual contact between the victim

and the Defendant was admitted, during the victim’s testimony, in violation of Rule 404(b).

This led to the State’s motion to amend the indictment, made in the presence of the jury,

following which the jury was immediately excused from the courtroom. Upon the jury’s

return to the courtroom, no curative instruction was given to explain the outcome of the

motion, likely resulting in confusion amongst the jury members. The trial court did not

offer an explanation during the jury instructions. This omission is troubling and leads us

to question whether it led to confusion amongst the jury members as to which time period

they needed to consider. However, in light of the evidence that the Defendant admitted to

sexual encounters with the victim while she was of minor age and prior to the return of the

indictment, we conclude that the trial court did not abuse its discretion when it denied the

Defendant’s motion. See State v. Byrd, 820 S.W.2d 739, 740 (Tenn. 1991) (stating that

the evidence need only establish the offense occurred prior to the return of the indictment);

see also State v. Brown, 992 S.W.2d 389, 392 (Tenn. 1999) (finding that although the State

elected an offense between April 11 and June 30, 1993, and the proof showed that the

offense happened before April 11, 1993, the evidence was not “legally insufficient in this

regard” because the State was not required to prove an offense was committed on a specific

date); State v. Vickers, 985 S.W.2d 1, 9 (Tenn. Crim. App. 2002) (noting that it was

“immaterial” that the indictment alleged the offense was committed in April 1990, while

the proof at trial showed that it was committed in August 1990, because both dates were

before the indictment was filed).

Additionally, based on the issues presented in this case, we must reiterate our

encouragement that each prosecutor’s office address internally its procedures to ensure the

accuracy of its indictments. State v. Ariel K. Robinson, et al., No. M2020-00058-CCA-

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R3-CD, 2021 WL 1020913, at *17 (Tenn. Crim. App., Nashville, March 17, 2021).

C. Motion for Judgments of Acquittal

The Defendant contends that the trial court should have granted his motion for

judgments of acquittal regarding Counts 2 and 3 based on the evidence of these two

indicted charges occurring outside the indictment’s time frame.

Rule 29 of the Tennessee Rules of Criminal Procedure provides, in relevant part, as

follows:

On Defendant’s motion or its own initiative, the court shall order the entry

of judgment of acquittal of one or more offenses charged in the indictment,

presentment, or information after the evidence on either side is closed if the

evidence is insufficient to sustain a conviction of such offense or offenses.

Tenn. R. Crim. P. 29(b). This rule empowers the trial judge to direct a judgment of

acquittal when the evidence is insufficient to warrant a conviction either at the time the

State rests or at the conclusion of all the evidence. See, generally, Overturf v. State, 571

S.W.2d 837 (Tenn. 1978). By presenting evidence, however, a defendant generally

waives his ability to appeal a trial court’s mid-trial denial of his motion for a judgment of

acquittal. Finch v. State, 226 S.W.3d 307, 317 (Tenn. 2007).

In this case, the trial court denied the Defendant’s motion for judgment of acquittal

raised at the close of the State’s proof. Following this denial, the Defendant presented

evidence. The Defendant, therefore, waived his right to appeal the denial of his motion

for judgment of acquittal raised at the close of the State’s proof. Id. at 317.

D. Cumulative Error

Lastly, the Defendant contends that the cumulative effect of the errors in this case

deprived him of a fair trial. We disagree. The cumulative error doctrine is a judicial

recognition that multiple errors committed in a trial, when aggregated, have a cumulative

effect on the proceedings so great as to require reversal in order to preserve a defendant’s

right to a fair trial. State v. Hester, 324 S.W.3d 1, 77 (Tenn. 2010). Useful guidance by

our supreme court is to consider each of the Defendant’s claims “against the background

of the case as a whole, paying particular weight to factors such as the nature and number

of errors committed; their . . . combined effect; how the [trial] court dealt with the errors

as they arose (including . . . any remedial efforts); and the strength of the State’s case.”

Id. at 77 (citing US v. Sepulveda, 15 F.3d 1161, 1196 (1st Cir.1993). Regarding the errors

committed and their effect on the trial as a whole, we conclude that, in light of the

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overwhelming and uncontroverted evidence of the Defendant’s guilt, the cumulative effect

of the errors at trial were not so great as to deprive him of his right to a fair trial and

therefore require reversal of his convictions.

III. Conclusion

After a thorough review of the record and relevant authorities, we affirm the

Defendant’s convictions.

_________________________________

ROBERT W. WEDEMEYER, JUDGE

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