Spicer v. State

IN THE SUPREME COURT OF TENNESSEE

AT JACKSON FILED
February 7, 2000
DONALD P. SPICER, ) FOR PUBLICATION
) Cecil Crowson, Jr.
Appellant, ) Appellate Court Clerk
FILED: February 7, 2000
)
v. ) SHELBY CRIMINAL
)
STATE OF TENNESSEE, ) HON. ARTHUR T. BENNETT
) JUDGE
Appellee. )
) No. W1996-00042-SC-R11-CD

For the Appellant: For the Appellee:

Marvin E. Ballin Michael E. Moore
Memphis, Tennessee Solicitor General

Mark A. Mesler Michael W. Catalano
Memphis, Tennessee Associate Solicitor General
Nashville, Tennessee

OPINION

AFFIRMED IN PART AS MODIFIED;
REVERSED IN PART; and
REMANDED TO TRIAL COURT BARKER, J.
 In this appeal, we address several issues related to the consolidation and

severance of multiple sexual abuse offenses pursuant to Tennessee Rules of Criminal

Procedure 8, 13, and 14. More specifically, these issues are: (1) whether the
appellant properly preserved his right to a severance of offenses under Rule 14(b)(1)

by objecting to a pre-trial motion for consolidation; if so, (2) whether the trial court

abused its discretion by improperly consolidating two indictments alleging child rape
and aggravated sexual battery in a single trial; and if so, (3) whether that abuse of

discretion affirmatively appears to have affected the outcome of the trial. For the

reasons stated herein, we hold that the appellant properly preserved his right to a
severance of offenses and that the trial court abused its discretion by consolidating

both indictments in a single trial. Because we also hold that the trial court’s abuse of

discretion affirmatively appears to have affected the outcome of the trial, we vacate
the appellant’s conviction and sentence and remand this case to the Shelby County

Criminal Court for a new trial. The judgment of the Court of Criminal Appeals is

affirmed in part as modified and reversed in part.

BACKGROUND

In February of 1992, the appellant, Donald Spicer, married Debra Stone, who

had two daughters, L.S. and A.S.,1 from a previous marriage. At the time of the
events giving rise to this case, L.S. and A.S. were ten and twelve years old,

respectively. On March 4, 1994, Stone and L.S. went to a local store to buy some

cleaning supplies for their home. While they were out, L.S. told her mother that they
needed to talk when they returned home, but after Stone insisted that they talk

immediately, L.S. told her that “[m]y dad has been messing with me.” L.S. also said

that when she was sleeping, the appellant would come into her room, pull her panties
down, and “put his private into [hers].”

Upon hearing that her husband was sexually abusing her daughter, Stone

became so upset that she immediately stopped at a pay phone to call her other

1
It is the policy of this Court not to identify minor children involved in sexual abuse cases by name.
Instead, we will identify the minor victims in this case only by their initials.

2
daughter, who was at home alone with the appellant. When A.S. answered the

phone, Stone asked her daughter whether the appellant had tried to do anything with

her. A.S. replied that the appellant had tried things but that she would not let him.
A.S. also said that the appellant tried earlier that day to put his hand down her jumper

while Stone and L.S. were at the store. Stone then told A.S. to get away from the

appellant and that she would come back home to get her.

On the way back to her house, Stone decided to contact the police, and she

drove to the house of Terry Jarvis, who was a special deputy with the Sheriff’s
Department. Although Stone told Jarvis that the appellant was abusing her daughters,

Jarvis stated that he did not want to get involved.2 Instead, Jarvis suggested that

Stone should call the police from a convenience store near her house. Stone then
took L.S. to the convenience store and called the police. Shortly thereafter, an officer

of the Shelby County Sheriff’s Office met Stone and L.S. at the store and drove them

to their house. While on the way to the house, L.S. told the officer that she had been

raped by the appellant. Sometime after they arrived at the house, Stone’s other

daughter, A.S., told the same officer that the appellant had fondled but not raped her.

Three days later, Stone took both of her daughters to the Rape Crisis Center

for a physical examination. The examination of A.S. showed that her hymen was
intact and that nothing appeared abnormal other than a vaginal discharge. The

examination of L.S., however, showed that she lacked a hymen and had an enlarged

introitus. The examining nurse testified that these findings were consistent with sexual
penetration, and that the enlarged introitus indicated that “this is something that

happened more than once.”

On August 9, 1994, a Shelby County grand jury returned two separate

indictments against the appellant charging him with aggravated sexual battery and

with rape of a child. Each indictment alleged that the offenses occurred sometime

during the period between July 1, 1993 and March 4, 1994. Immediately prior to trial

2
Presumably, Jarvis was unwilling to get involved because he was also the appellant’s supervisor.

3
on May 8, 1995, the State orally moved to consolidate both indictments, 3 and the
appellant objected to the consolidation. The trial court overruled the appellant’s

objection and consolidated the offenses on the belief that indictments should be joined
for reasons of judicial economy. Although the appellant did not move for a severance

of offenses after his objection was overruled, the appellant renewed his objection to

consolidation after the State’s proof and in a motion for a new trial.

Following a five-day trial, a jury convicted the appellant of misdemeanor assault

and of child rape. The trial court sentenced the appellant to serve concurrent
sentences of eleven months, twenty-nine days for the assault conviction and eighteen

years for the child rape conviction. In addition, the court fined the appellant

$2,500.00.

On appeal to the Court of Criminal Appeals, the appellant argued, among other

things, that the evidence was insufficient to support a conviction on either indictment

and that the indictments were improperly consolidated. The Court of Criminal Appeals

upheld the child rape conviction, but it reversed and dismissed the assault conviction

for insufficient evidence. The intermediate court also held that the indictments were

improperly consolidated because the offenses were not parts of a common scheme or

plan. A majority of the court, however, found that the consolidation error was
harmless and affirmed the child rape conviction.4 In dissent, Judge David Hayes

relied on State v. Hoyt, 928 S.W.2d 935 (Tenn. Crim. App. 1995), and stated that

because the offenses were alleged in open-dated indictments, the consolidation error
was of “such prejudicial dimensions as to require reversal” of the conviction.

3
The record is not entirely clear whether the State moved for mandatory joinder of offenses pursuant
to Rule of Criminal Procedure 8(a) or whether the State sought permissive joinder under Rule 8(b). The
State ’s argum ents at the consolidation hearing, however, strongly suggest that the State sought permissive
joinder under th e “sam e or sim ilar charac ter” stand ard of R ule 8(b). Further, the State argues on appeal that
the offenses were properly consolidated under Rule 8(b). Therefore, we will analyze the issues in this case
according to the rules governing permissive joinder and severance.

4
The Court of Criminal Appeals concluded that the error was harmless because (1) the State elected
to submit to the jury two very distinct offenses; (2) the trial court instructed the jury to consider the testimony
of the victims only as to each separate offense; (3) the trial court instructed the jury to treat the cases as
separa te and dis tinct cases; and (4) the disparity in the verdicts indicated that the jury considered the
charge s and the evidenc e sepa rately.

4
 The appellant then sought review in this Court on the sole issue of “whether the

trial court committed prejudicial error by allowing the State to proceed to trial on two

separate indictments . . . .” We agree with the Court of Criminal Appeals that the trial
court abused its discretion in consolidating the indictments in this case, but we

disagree that the error was harmless. Therefore, the judgment of the Court of

Criminal Appeals is affirmed in part as modified and reversed in part.

STANDARD OF APPELLATE REVIEW

We review decisions concerning permissive joinder and severance of offenses

pursuant to Rules of Criminal Procedure 8(b) and 14(b)(1) for an abuse of discretion.

State v. Shirley, 6 S.W.3d 243, 247 (Tenn. 1999). As such, a trial court’s decision to

consolidate or sever offenses will not be reversed unless the “‘court applied an

incorrect legal standard, or reached a decision which is against logic or reasoning that

caused an injustice to the party complaining.’” Id. (quoting State v. Shuck, 953

S.W.2d 662, 669 (Tenn. 1997)).

CONSOLIDATION vs. SEVERANCE

The first issue we must resolve is whether this case is more properly
characterized as a consolidation case or a severance case. Although the distinction

may initially appear immaterial, characterization of the issue is of considerable

importance because the legal standards by which our review is governed vary
depending upon the type of case involved. To consolidate separate indictments under

Rule 8(b), the state needs only to show that the offenses are parts of a common

scheme or plan or that the offenses are “of the same or similar character.” In contrast,
however, a defendant has a right under Rule 14(b)(1) to a severance of offenses

permissively joined, unless the offenses are parts of a common scheme or plan and

the evidence of one offense “would be admissible upon the trial of the others.” After

reviewing the Rules of Criminal Procedure, we conclude that this case is more
properly governed by the severance provisions in Rule 14(b)(1).

5
 Because the consolidation and severance provisions of the Rules of Criminal

Procedure operate according to different standards, a defendant may have the right to

a severance of offenses even when those offenses were properly joined initially. For
example, a defendant has an absolute right to sever offenses that are only of the

same or similar character because the sole exception to the defendant’s right to a

severance under Rule 14(b)(1) does not even mention offenses that are of the same
or similar character. See Shirley, 6 S.W.3d at 246; cf. State v. Peacock, 638 S.W.2d

837, 840 (Tenn. Crim. App. 1982) (stating that offenses may not be parts of a

“common scheme or plan although the offenses may be of the ‘same or similar
character’”). Likewise, although Rule 8(b) permits consolidation when the offenses

are parts of a common scheme or plan, Rule 14(b)(1) can be used to sever those

offenses if evidence of each offense is not admissible in the trial of the others. In fact,
because a defendant has a right to a severance of offenses in all cases but one, the

Rules allow a trial court to consolidate offenses over the defendant’s objection only

when the offenses are parts of a common scheme or plan and evidence of each

offense is admissible in the trial of the others. Consequently, when a defendant

objects to a pre-trial consolidation motion by the state, the trial court must consider the

motion by the severance provisions of Rule 14(b)(1), not the “same or similar

character” standard of Rule 8(b).

The State argues that this case should be governed by the consolidation

provisions of Rule 8 because the appellant failed to move for a severance and

because he did not cite as error in his motion for new trial the court’s failure to sever
the offenses. In essence, the State argues that the appellant has waived his right to a

severance of offenses by not formally moving for a severance of offenses pursuant to

Rule 14(b)(1), and as such, the proper legal standard to be considered in this case is
whether the offenses are of the “same or similar character” as contemplated by Rule

8(b). We disagree.

In the vast majority of permissive joinder and severance cases, the offenses
sought to be joined have been consolidated by the state in the original indictment or

information pursuant to Rule 8(b). In the usual case, therefore, the burden is on the

6
defendant to move for a severance of those offenses and to satisfy the criteria of Rule

14(b)(1) before separate trials will be granted. Unless the defendant moves to sever

the offenses prior to trial or at an otherwise appropriate time, the defendant waives the
right to seek separate trials of multiple offenses. See Tenn. R. Crim. P. 12(b)(5);

14(a).

Less frequently, however, the state may seek to consolidate offenses contained

in multiple indictments upon motion pursuant to Rule of Criminal Procedure 13(a).

When a defendant objects to the consolidation motion, the state must then
demonstrate that the offenses are parts of a common scheme or plan and that

evidence of each offense is admissible in the trial of the others. After an objection to

consolidation has been overruled, the defendant is not then required to immediately
move for a severance in order to preserve a severance issue for appeal. Because the

trial court in this situation is to consider whether consolidation is proper in light of Rule

14(b)(1), a rule that requires a defendant to formally move for a severance

immediately after the objection to consolidation is overruled makes little practical

sense. Further, such a rule would emphasize technicality of procedure over

substantive fairness, would add unjustifiable expense and delay to the proceedings,

and would defeat the very purposes to be served by the Rules of Criminal Procedure.5

In the present case, the State sought consolidation of the two indictments upon

motion, although it did not seek the consolidation until the very morning of trial. 6

Under these circumstances, the appellant’s objection to the State’s consolidation
motion effectively notified the court of his desire to be tried separately on both

indictments, and as a practical matter, the appellant’s objection to consolidation had

the same procedural and substantive effect as a formal motion to sever. We hold,

5
Tennesse e Rule of Criminal Procedu re 2 states that “[t]hese rules are intended to provide for the
just determination of every criminal proceeding. They shall be construed to secure simplicity in procedure,
fairness in adm inistration an d the elim ination of un justifiable ex pense and dela y.”
6
W e note that because the State did not m ove to cons olidate the indictments until immediately before
voir dire, the State may have waived its privilege to join the two indictments. Rule of Criminal Procedure
12(b)(5) requires that motions for consolidation of charges be made prior to trial, and courts have interpreted
the phrase “prior to trial” to mean “sometime earlier than ‘the day of the trial when the jury is waiting in the
hall.’” See State v. Hamilton, 628 S.W.2d 742, 744 (Tenn. Crim. App. 1981) (quoting and approving of
interpretation of Rule 12(b) by trial judge). However, because there are exceptions to this rule and because
this issue has not been raised and preserved by the appellant, we do not address its impact on this case.
See Tenn. R. App. P. 13(b); 36(a).

7
therefore, that irrespective of whether a defendant formally moves for severance or

whether a defendant merely objects to the state’s pre-trial motion for consolidation,

the issue properly preserved is one of severance.7 In either case, the trial court must
consider whether consolidation is proper in light of Rule 14(b)(1), not whether the

offenses meet the “same or similar character” standard contemplated by Rule 8(b). 8

SEVERANCE OF OFFENSES

Having decided that the consolidation issue in this case is governed by the
severance provisions of Rule of Criminal Procedure 14(b)(1), we must now decide

whether the trial court abused its discretion by trying the offenses alleged in both

indictments in a single trial. Rule 14(b)(1) states that “[i]f two or more offenses have
been joined or consolidated for trial pursuant to Rule 8(b), the defendant shall have a

right to a severance of the offenses unless the offenses are part of a common scheme

or plan and the evidence of one would be admissible upon the trial of the others.” As

this Court has previously interpreted Rule 14, the “primary issue” to be considered in

any severance case is whether evidence of one offense would be admissible in the

trial of the other if the two offenses remained severed. See State v. Burchfield, 664

S.W.2d 284, 286 (Tenn. 1984). In its most basic sense, therefore, any question as to

whether offenses should be tried separately pursuant to Rule 14(b)(1) is “really a
question of evidentiary relevance.” State v. Moore, 6 S.W.3d 235, 239 (Tenn. 1999);

see also Shirley, 6 S.W.3d at 248.

7
Of course, the defendant would need to raise the objection again in a motion for a new trial to
prop erly preserv e the issu e for app eal. See Tenn. R. App. P. 3(e ); cf. State v. Schaller, 975 S.W.2d 313
(Tenn. Crim. App. 1997) (holding that because defendant did not move again for a severance after close
of state’s proof, the issue of severance was not preserved). Because the appellant in this case did renew
his objection to consolidation after the State’s proof and again in his motion for new trial, he there by pro perly
preser ved his o bjection fo r appea l.
8
Cf. Bullard v. S tate, 208 Tenn. 641, 645-46, 348 S.W.2d 303, 305 (1961) (s tating that “the propriety
of trying together separate indictments or informations against the same accused over his o bjection re sts
in the sound discretion of the trial court, which has the obligation to safeguard not only the rights of the
govern men t but also of the acc used a nd to see that such rights are n ot jeopar dized”).

8
 A motion to consolidate or sever offenses is typically a pre-trial motion, see

Tenn. R. Crim. P. 12(b)(5),9 and consequently, evidence and arguments tending to

establish or negate the propriety of consolidation must be presented to the trial court
in the hearing on the motion. Cf. Bruce v. State, 213 Tenn. 666, 670, 378 S.W.2d

758, 760 (1964) (stating that decisions to join offenses necessarily must be made prior

to trial). Before consolidation is proper, the trial court must conclude from the
evidence and arguments presented at the hearing that: (1) the multiple offenses

constitute parts of a common scheme or plan, Tenn. R. Crim. P. 14(b)(1); (2) evidence

of each offense is relevant to some material issue in the trial of all the other offenses,
Tenn. R. Evid. 404(b)(2); Moore, 6 S.W.3d at 239; and (3) the probative value of the

evidence of other offenses is not outweighed by the prejudicial effect that admission of

the evidence would have on the defendant, Tenn. R. Evid. 404(b)(3). Further,
because the trial court’s decision of whether to consolidate offenses is determined

from the evidence presented at the hearing, appellate courts should usually only look

to that evidence, along with the trial court’s findings of fact and conclusions of law, to

determine whether the trial court abused its discretion by improperly joining the

offenses.

The requirement that pre-trial evidence be introduced tending to establish or

negate the presence of a common scheme or plan presents special problems when
the indictment alleges sexual offenses but alleges no specific date upon which the

offenses occurred. When an indictment alleges that sexual offenses have occurred

over a period of time against a single victim, then the state may introduce other
evidence at trial of unlawful sexual contact between the defendant and the victim

occurring during the time alleged in the original indictment. State v. Rickman, 876

S.W.2d 824, 828 (Tenn. 1994). The state is required, however, to make an election
“at the close of its proof-in-chief as to the particular offense or offenses for which it is

seeking a conviction.” See, e.g., State v. Brown, 992 S.W.2d 389, 391 (Tenn. 1999);

Rickman, 876 S.W.2d at 828; Burlison v. State, 501 S.W.2d 801, 804 (Tenn. 1973).

9
But see Tenn. R. Crim. P. 14(a) (allowing a motion to sever offenses to occur “before or at the close
of all evidence if based upon a ground not previously known”); Tenn. R. Crim. P. 12(f) (allowing the court
to grant relief from a failure to “raise defenses or objections or to mak e requests” when cau se is shown).

9
 The election requirement serves several important functions, 10 including the fact
that it “enables the trial judge to review the weight of the evidence in its role as

thirteenth juror[,] and it enables an appellate court to review the legal sufficiency of the
evidence.” Brown, 992 S.W.2d at 391; see also State v. Shelton, 851 S.W.2d 134,

137 (Tenn. 1993). Election by the state after the close of its proof serves these review

functions well because review of the evidence obviously cannot be performed until the
close of all the proof. In ruling upon a consolidation or severance motion, however, a

trial court does not have the luxury of waiting until the state’s election of offenses to

decide whether the specific crimes alleged actually constitute parts of a common
scheme or plan. Indeed, any such determination at this late point in the trial would

require a defendant to bear an enormous risk of unfair prejudice solely for

considerations of economy and expediency in judicial administration.

The facts of this case illustrate well the dangers involved in waiting until the

close of proof to determine whether a common scheme or plan in fact exists. Both

indictments alleged crimes occurring between July 1, 1993 and March 4, 1994, and at

the hearing on the consolidation motion, the State introduced no proof that these

crimes fell into any of the three types of common scheme or plan evidence.11 As

appellant’s counsel stated:

These are two separate types of offenses on separate victims . . . [and] we
don’t know if one is a witness to the other. We do not know if they occurred
at the very same time, on both victims at the same time. We don’t know
anything about this consolidation other than the fact that there were two
victims.

10
For example, the election procedure works to preserve the defend ant’s con stitutional right to a
unanimous jury verdict, and it works to protect a defendant against double je opardy. Brown, 992 S.W.2d
at 391. Election also “enable[s] the defendant to prepare for an d m ake his de fens e to th e spe cific charge .”
Burlison, 501 S.W .2d at 803 .

11
In general, there are three types of common scheme or plan evidence recognized in Tennessee:
(1) offenses that reveal a distinctive design or are so similar as to constitute “signature” crimes; (2) offenses
that are part of a larger, continuing plan or conspiracy; and (3) offenses that are all part of the same criminal
transac tion. See Shirley, 6 S.W .3d at 248 ; Moore , 6 S.W .3d at 240 .

10
In response, the assistant district attorney identified for the court only one example of

the appellant’s alleged crime:

[I]n reviewing interviews with the children, there is at least one occasion
where they were in the same bed. And though I can not predict every word
the child is going to say, . . . they were in the same bed and both of them
knew they were in the same bed and both of them knew they were in the
same bed with the defendant. And that’s on at least one occasion.

When appellant’s counsel asked whether this occasion was the offense the State would

elect to submit to the jury, the assistant district attorney simply responded “No.”

Indeed, the State’s only argument at the hearing for not keeping the offenses

severed was that “it is the same time frame, the same household, the same parent,

the same step-father, and the same investigation.” Although the State characterized
this case as “a classic case for consolidating,” the trial court overlooked the fact that a

defendant has an absolute right to sever offenses that are merely of the “same or

similar character.” Nevertheless, the State was allowed to introduce proof during the

course of the trial that the appellant sexually abused both of his step-daughters on

multiple occasions, despite the fact that the circumstances and methods of the abuse

varied so widely over the nine-month period alleged by the indictments that we can

find no clear common scheme or plan.

As the comments to Rule of Criminal Procedure 8 make clear, the purpose of

the severance provisions is to ensure that the defendant is insulated from the

evidence of the other offenses when that evidence is not otherwise admissible. Tenn.
R. Crim. P. 8 advisory commission’s cmts.; see also Burchfield, 664 S.W.2d at 288.

Given this rationale and the fact that motions to consolidate offenses must generally

be heard and decided prior to trial, we conclude that the Rules do not permit the State
to justify an erroneous consolidation of offenses merely by electing the two offenses

from all the proof that most closely resemble a common scheme or plan. Not only

would such a result be contrary to the plain language of Rule 14(b)(1), which states

that the defendant “shall have a right to a severance of the offenses” unless the
offenses are parts of a common scheme or plan, but such a result would also be

contrary to basic notions of fundamental fairness.

11
 Because the State introduced no evidence of a common scheme or plan at the

consolidation hearing, we find that the trial court abused its discretion in not holding

separate trials on each of the indictments. In all cases in which the state seeks to
consolidate multiple offenses by pre-trial motion over the objection of the defendant,

the state must bring forth sufficient evidence at the hearing to establish that specific

acts constitute parts of a common scheme or plan. When the offenses are alleged in
an open-dated indictment, the state may not meet this burden of production with

evidence later developed at trial,12 and this Court will not look to such evidence to

determine whether consolidation was proper.

While we do not necessarily require that the state make a pre-trial election of

the offenses it will ultimately present to the jury for conviction, we recognize that the
requirements of Rule 14(b)(1) may practically have this effect in many cases when the

state seeks permissive joinder of offenses presented in an open-dated indictment.

We also recognize that in some cases, the state may have difficulty deciding in

advance upon which offense it should seek conviction; indeed, this is the very purpose

of allowing the state to maintain some flexibility in prosecutions of child sexual abuse

cases. Cf. Rickman, 876 S.W.2d at 828; Cox v. State, 196 Tenn. 624, 628, 270

S.W.2d 182, 183 (1954). However, this difficulty must be balanced against the

defendant’s right to a severance of offenses and the need to avoid exposing the
defendant to needless risk of unfair prejudice. Therefore, when the state seeks to

consolidate offenses that are alleged in open-dated indictments, we hold that the state

must introduce sufficient proof at the pre-trial hearing to support a finding that specific
acts constitute parts of a common scheme or plan.

HARMLESS ERROR

12
In at least one reported case, the Court of Crim inal Appe als looke d to the offenses later elected by
the state to determine whether multiple offenses in an open-dated indictment were properly consolidated
prior to trial. See State v. Ho yt, 928 S.W .2d 9 35 (T enn . Crim . App. 1995). No rationale was presented by
the Hoyt court, and the court seems to have merely assumed the correctness of this method of review.
However, for the reasons already stated, appellate courts should look to the evidence presented at the
consolidation or se vera nce hear ing, and to the extent tha t Hoyt can be read to permit appellate review of
severance issues based only upon the offenses actually elected at the close of the evidence, it is overruled.

12
 Having determined that the trial court abused its discretion in consolidating the

indictments over the appellant’s objection, we must now decide whether that abuse of

discretion affirmatively appears to have affected the outcome of the trial. See Tenn.
R. Crim. P. 52(a); Tenn. R. App. P. 36(b). Because the Court of Criminal Appeals

dismissed the assault charge, the only offense before this Court is that of child rape.

The State argues that the Court of Criminal Appeals was correct in holding that the
consolidation error was harmless because the jury instructions cured any error and

because the disparity in the verdicts demonstrated that the jury considered each

offense separately. Therefore, the State argues, because the evidence was
“abundant and legally sufficient” with respect to the child rape indictment, any error in

joining the two indictments did not affect the outcome of the trial. We disagree.

In most severance cases, “the line between harmless and prejudicial error is in

direct proportion to the degree . . . by which proof exceeds the standard required to

convict . . . .” Delk v. State, 590 S.W.2d 435, 442 (Tenn. 1979); see also Shirley, 6

S.W.3d at 250; Moore, 6 S.W.3d at 242. In this case, the evidence supporting the

child rape indictment consisted only of the victim’s testimony—either directly from L.S.

or through second-hand testimony from other witnesses—and of medical testimony

establishing that the victim’s physical condition was consistent with multiple

occurrences of sexual penetration. Although this Court will not reweigh the evidence
where the evidence is sufficient for conviction beyond a reasonable doubt, see State

v. Cabbage, 571 S.W.2d 832, 835 (Tenn. 1978), the evidence presented was hardly

unimpeachable on any material point. For example, the examining nurse admitted
that L.S.’s condition could have been the result of any one of a number of causes, and

that at most, her condition was only consistent with sexual penetration. Further, L.S.

testified that she could not remember making an earlier statement that contradicted
her trial testimony with respect to being raped, and she was unable to say whether her

memory of the events was better at the time of trial or when the events actually

occurred. We agree with the Court of Criminal Appeals that when all the evidence is

considered, the evidence was ultimately sufficient for conviction beyond a reasonable
doubt. However, the evidence presented was certainly not overwhelming.

13
 Writing in dissent in the intermediate court, Judge Hayes relied on State v.

Hoyt, 928 S.W.2d 935 (Tenn. Crim. App. 1995), to find that “the appellant was unduly

prejudiced by the joinder of these offenses.” In Hoyt, the Court of Criminal Appeals
reversed three convictions on the grounds that joinder of open-dated indictments

involving multiple victims was inherently prejudicial. As was the case in Hoyt, Judge

Hayes concluded that it was probable the testimony from each victim in this case
bolstered the credibility of the other and invited the jury’s reliance on the appellant’s

perceived propensity to sexually abuse his daughters.

We agree with Judge Hayes that joinder of open-dated indictments involving

multiple victims is usually prejudicial because State v. Rickman seems to allow the jury

to hear evidence of countless sexual episodes from each of the different victims. In
most cases, a real probability exists that the jury could be overwhelmed by the sheer

volume of prejudicial evidence and that the jury could be tempted to convict based

upon a defendant’s propensity to commit crimes rather than convict solely upon

evidence relating to the charged offense. We do not agree, however, that joinder of

open-dated indictments alleging offenses against multiple victims is inherently

prejudicial. There may be some cases in which a jury is able to give separate

attention and consideration to the evidence presented under each indictment such

that an error in consolidation will not affirmatively affect the outcome of the trial.

Nevertheless, we conclude that the verdict in this case probably resulted in part

from unfair prejudice ensuing from improper consolidation of the two indictments. The
jury heard statements from L.S., who stated that the appellant raped her “every week,”

and from A.S., who stated that the appellant fondled her so often that she could not

count. In addition, each victim testified to a number of sexual encounters with the
appellant that were unrelated to the offenses eventually elected by the State. It is

unlikely that the jury was not influenced by the perceived propensity of the appellant to

sexually abuse his step-daughters, or that the testimony from each of the victims was

not bolstered by the same type of testimony coming from the other. This perceived
propensity combined with less than abundant evidence of rape leads us to conclude

that the consolidation error affirmatively affected the outcome of the trial. Therefore, a

14
new trial on this indictment is needed to ensure that the appellant’s conviction is not

the result of unfair prejudice.

The State argues that the reduction by the jury of the aggravated sexual battery

charge to that of misdemeanor assault shows that the jury separately considered the

evidence of each offense. On the contrary, however, the jury’s conviction on this
indictment further strengthens our conclusion that the jury was unduly prejudiced.

Because we agree with the Court of Criminal Appeals that no evidence supported a

conviction on the assault charge submitted to the jury, the jury must have relied upon
something other than the evidence to reach its verdict.13 It is not improbable,
therefore, that the jury relied upon the perceived propensity of the appellant to

sexually abuse his step-daughters to reach a decision in both cases, and for this
reason, we find that the consolidation error was not harmless. 14

CONCLUSION

To summarize, we hold that the appellant’s objection to the State’s pre-trial

motion to permissively consolidate offenses, along with his renewal of that objection in

his motion for new trial, properly preserved the severance issue for appeal. We also

hold that the trial court in this case abused its discretion in consolidating the two
indictments because the State produced no evidence at the consolidation hearing to

demonstrate that the two offenses were parts of a common scheme or plan. Because

we further hold that this error affirmatively affected the outcome of the trial on its

13
Although there are th ree d iffere nt wa ys to c om mit a ssa ult in Tenn essee , see Tenn . Code A nn. § 39-
13-101 (1997 ), the j ury w as on ly instru cted as to the m etho d req uiring the d efen dan t to pu t the vic tim in
reasonable fear of imminent bodily injury. The State did not even attempt to argue in the court below that
the proof supported this type of assault, but rather it argued that the evidence supp orted ass ault based upon
extre me ly offe nsive or pro voca tive ph ysica l contact. W e conclude, therefore, that because no evidence
supported the charged offense, the verdict must have been the result of something other than consideration
of the evidence.
14
The State also argues that the error was harmless because the trial court gave clear instructions
that the ju ry was to consider each indictment separately. Although a jury is presumed to follow the
instructions given by the tria l judge, State v. Williams, 977 S.W .2d 101, 106 (Tenn. 1998 ), this presumption
is not conclusive, and where there is an indication that the jurors did not follow the instructions, an instruction
will not help cure an otherwise prejudicial error. As already stated, the jury convicted the appellant on an
offense for which there was no evidence, and this indicates that there may have been some spill-over effect
between the two indictments. To the extent tha t the jury con sidered the prop ensity of the a ppellant to
sex ually abuse his daughter, the jury also ignored the “clear” instructions by the trial court. Therefore, the
jury instructions in this case will not work to cure an otherwise prejudicial error.

15
merits, we vacate the appellant’s conviction and sentence for child rape and remand

this case to the Shelby County Criminal Court for a new trial consistent with this

opinion. The judgment of the Court of Criminal Appeals is affirmed in part as modified
and reversed in part.

Costs of this appeal are assessed against the State of Tennessee.

_______________________________
WILLIAM M. BARKER, JUSTICE

CONCUR:

ANDERSON, C.J.
DROWOTA, BIRCH, HOLDER, JJ.

16