State v. Huse

• Decision Date: 23 March 2021
• Docket Number: No. M2019-02087-CCA-R3-CD,M2019-02087-CCA-R3-CD
• Parties: STATE OF TENNESSEE v. ROBERT E. HUSE
• Court: Tennessee Court of Criminal Appeals

STATE OF TENNESSEE v. ROBERT E. HUSE

No. M2019-02087-CCA-R3-CD

COURT OF CRIMINAL APPEALS OF TENNESSEE AT NASHVILLE

February 10, 2021 Session

March 23, 2021

Appeal from the Circuit Court for Dickson County

No. 2013-CR-229

Larry J. Wallace, Judge

The Dickson County Grand Jury charged Defendant, Robert E. Huse, with aggravated child abuse and first degree felony murder in connection with the death of his infant son, G.S.¹ Prior to trial, the State filed a notice of intent to introduce prior bad act evidence that Defendant abused another child four years before the victim's death. Against Defendant's repeated objections, the trial court allowed the admission of the prior bad act evidence for the purposes of establishing intent, identity, and common scheme or plan. Following trial, the jury convicted Defendant as charged, and the trial court sentenced Defendant to life for first degree felony murder and to a concurrent term of fifteen years for aggravated child abuse. On appeal, Defendant argues that the evidence was insufficient to support his convictions and that the trial court erred in admitting the prior bad act evidence, which prejudiced him. Following a thorough review of the record and applicable case law, we conclude that the trial court abused its discretion by admitting the prior bad act evidence and that this error prejudiced Defendant. Therefore, we reverse the judgments of the trial court and remand for a new trial consistent with this opinion.

Tenn. R. App. P. 3 Appeal as of Right; Judgments of the Circuit Court Reversed and Remanded

ROBERT L. HOLLOWAY, JR., J., delivered the opinion of the court, in which JOHN EVERETT WILLIAMS, P.J., and ROBERT W. WEDEMEYER, J., joined.

M. Todd Ridley, Assistant Public Defender, Tennessee District Public Defenders Conference, Franklin, Tennessee, (on appeal), and William J. Lockert, III, District Public Defender, and Joshua T. Turnbow, Assistant District Public Defender, Ashland City, Tennessee, (at trial), for the appellant, Robert E. Huse.

Herbert H. Slatery III, Attorney General and Reporter; Cody N. Brandon, Assistant Attorney General; W. Ray Crouch, District Attorney General; and Jennifer J. Stribling, Assistant District Attorney General, for the appellee, State of Tennessee.

OPINION

Factual and Procedural Background

Motion in Limine to Introduce Prior Bad Acts Under Rule 404(b)

Prior to trial, the State filed a Motion in Limine notifying Defendant of its intent to "introduce prior bad acts" at trial, pursuant to Tennessee Rule of Evidence 404(b). The State sought to introduce the details surrounding Defendant's 2009 conviction for accessory after the fact to child abuse related to injuries to Defendant's son, A.H.

At a pretrial 404(b) hearing, Erica Lee Demoss testified that she was Defendant's ex-wife and that she had two children with Defendant. Ms. Demoss said that, when she was pregnant with A.H.,² Defendant "blacked [her] eyes," "punched" her, "choked" her, and "kick[ed] [her] down some steps." Ms. Demoss testified that Defendant did not believe that A.H. was his child but that she later had a test establishing Defendant was the father.

Ms. Demoss said that, in November 2008 when A.H. was approximately five months old, Defendant was watching A.H. at home, and he called Ms. Demoss at her work because A.H. was "very fussy" and had vomiting and diarrhea. Defendant told Ms. Demoss that A.H. would throw up as soon as he fed him. Ms. Demoss stated that, due to A.H.'s premature birth, he often had vomiting and irritability but that, on the day of his injuries, he was "[i]nconsolable." Ms. Demoss left work, and she and Defendant took A.H. to the hospital. After running tests, the doctors found that A.H. had suffered a "subdural hematoma" on his forehead and the back of his head and that the occipital bone was injured. Ms. Demoss testified that the doctors also found an "old bleed" on A.H.'s brain. Ms. Demoss stated that Defendant was "nervous" and "scared" when he received A.H.'s diagnosis. Ms. Demoss stated that she pled guilty to "child neglect, failure to protect" related to A.H.'s November 2008 injuries.

Ms. Demoss testified that, after G.S.'s death in 2012, Defendant was shown on television at G.S.'s gravesite and that he called her to talk to her about the television appearance. Ms. Demoss stated that Defendant laughed and said, "Didn't my truck look good?"

Brittany Neville³ testified that Defendant was the father of the victim, G.S., and that she was the victim's mother. She stated that the victim was born healthy and was a "happy baby." Ms. Neville testified that, on September 21, 2012, the victim was approximately two months old and that he began "projectile vomiting." She explained that the victim would throw up as soon as she fed him. Ms. Neville said that she took the victim to the hospital where he was admitted and an ultrasound was performed on his head. The ultrasound revealed no abnormalities. Ms. Neville recalled that the victim was diagnosed with colic and thrush and was discharged from the hospital on September 24, 2012, at 2:42 p.m. and that she and Defendant drove G.S. home after stopping at Walmart for supplies and to drop off the victim's prescriptions. Ms. Neville testified that, when they arrived home, they left the victim in his car seat to let him sleep and that they brought the car seat into the house. Ms. Neville left for work just before 5:00 p.m., and Defendant was alone with the victim.

While Ms. Neville was at work, Defendant contacted her to ask for the victim's social security number so that he could fill a prescription that the Walmart pharmacy had been unable to fill. About three hours after Ms. Neville arrived at work, Defendant contacted her again to let her know that he and the victim were headed back to the hospital because the victim "wasn't breathing."

Ms. Neville testified that Defendant said that, while she was at work, he went to get the victim's medication and came back home. Then he fed the victim and put the victim in his swing. The victim was crying, so Defendant took him upstairs to put him in his crib and then went back downstairs to cook. Ms. Neville stated that it was unusual to put the victim upstairs unless she or Defendant were also upstairs. Defendant told Ms. Neville that he could no longer hear the victim crying, so Defendant went to check on the victim and found him "lifeless" and covered in vomit. Ms. Neville recalled that there was vomit "all over [her] bed" and "on the sofa" and that "it was everywhere."

Ms. Neville explained that, during her relationship with Defendant, he "slapped" her in the face and pushed her down while she was pregnant and that he was "very controlling." She said that, "a week or two" after the victim's death, Defendant got angry about something and "slammed" their chihuahua on the ground and injured it. About a week before the victim's death, Defendant texted Ms. Neville a picture of the victim with a "black eye" and told her not to "freak out" because the dog had jumped on the victim.

Ms. Neville said that, in January 2013, the medical examiner told her that the victim suffered blunt force trauma to his head with an injury to the occipital bone. She testified that she called Defendant to confront him about the autopsy report and that Defendant "cussed" at her and hung up the phone.

On cross-examination, Ms. Neville stated that her older children were around the victim on September 20, 2012, the day before the victim fell ill. Ms. Neville agreed that it was not unusual for a colicky baby to cry and that she did not have a lot of experience with colic.

Dickson Police Department Detective James Stanley Eubank testified that Defendant made a written statement on November 5, 2008, regarding A.H.'s injuries, which stated:

[I]t first started about three days ago. [A.H.] started to get very fussy with everything we do, so he started crying more. And yesterday at 2:30 a.m., I fed him and he ate, I believe, four ounces and threw up all of it. Then went to sleep so I let him and now he will not eat or anything. He is very fussy and very sleepy, so we drove him to Vanderbilt to see what was wrong with him.

The prosecutor asked Detective Eubank to compare A.H.'s case to the present case. Detective Eubank testified that Defendant stated that he had been home alone with the victim and that he had fed the victim four ounces of formula, which was his same story in A.H.'s case. Detective Eubank agreed that Defendant said that the victim vomited and also stated that A.H. vomited. He agreed that Defendant said that he put A.H. in his swing and hit A.H.'s head on the swing and that Defendant also said he put the victim in his swing. He agreed that both A.H. and the victim had injuries to their occipital bones and contusions on their foreheads.

On cross-examination, Detective Eubank agreed that Defendant was not convicted of causing injuries to A.H. He agreed that Ms. Neville failed a polygraph examination regarding whether she caused the injuries to G.S. but said that she was eliminated as a suspect.

The prosecutor argued that the circumstances of the case involving A.H. were "virtually identical" to the circumstances in the present. The prosecutor noted that an injury to the occipital bone is a "very specific injury" and said that it "is more than coincidence that both children had the injury to the occipital bone and a contusion to the forehead in both cases." The prosecutor argued:

All of this evidence -- and without the first case, you know, we may be sitting here thinking, ["M]an, who committed this crime, who did this, who had -- who could have done this[?"] just looking at either case independently and without knowing about the other. But when you sit these two cases together and look at the evidence in both of them, what do they do? They all point directly to [D]efendant because the facts and the scenarios are almost identical. I mean, they lay -- they lay on top of each other. It's almost --

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