State v. Toliver

IN THE SUPREME COURT OF TENNESSEE
AT KNOXVILLE
January 7, 2003 Session

STATE OF TENNESSEE v. ANDERSON TOLIVER

Appeal by Permission from the Court of Criminal Appeals
Criminal Court for Hamilton County
Nos. 223083 and 223085 Stephen M. Bevil, Judge

No. E2001-00584-SC-R11-CD - Filed October 2, 2003

The defendant was convicted of two counts of aggravated child abuse. The trial court imposed a
nine-year sentence for each conviction and ordered concurrent service of these sentences. The
defendant appealed, raising numerous issues, but the Court of Criminal Appeals affirmed the
convictions and sentences. We granted the defendant’s application for permission to appeal and,
after thoroughly reviewing the record, conclude that the trial court abused its discretion in
consolidating the two indictments for trial. Furthermore, we have concluded that the erroneous
consolidation of the indictments, in conjunction with the erroneous admission of evidence of
other crimes, wrongs, or acts, affirmatively appears to have affected the verdict of the jury.
Accordingly, the judgments of the trial court and Court of Criminal Appeals are reversed, and
these cases are remanded for new trials at which evidence of other crimes, wrongs, or acts
committed by the defendant against the victim or others shall not be admitted unless relevant to a
material issue.

Tenn. R. App. P. 11; Reversed and Remanded for New Trials

FRANK F. DROWOTA , III, C.J., delivered the opinion of the court, in which JANICE M. HOLDER,
and WILLIAM M. BARKER, JJ., joined.

ADOLPHO A. BIRCH, JR., J., filed a concurring opinion.

E. RILEY ANDERSON, J., filed a dissenting opinion.

Jerry H. Summers and Thomas Greenholtz, Chattanooga, Tennessee, for the appellant, Anderson
Toliver.

Paul G. Summers, Attorney General and Reporter; Michael E. Moore, Solicitor General; Angele
M. Gregory, Assistant Attorney General; William H. Cox, III, District Attorney General; and
Kelli Black, Assistant District Attorney General, for the appellee, State of Tennessee.
 OPINION

I. Factual Background
The defendant, Anderson Toliver, was convicted of two counts of aggravated child abuse
for striking his stepson, G.S., on March 1, 1998 and April 9, 1998, with a braided heavy-duty
extension cord.1 G.S., who was eighteen years old and a senior in high school at the time of the
trial and sixteen years old when the alleged incidents occurred, testified as the State’s first
witness. Before being asked about either of the incidents alleged in the indictments, G.S. was
questioned about earlier incidents of abuse and said that from the time he was in eighth grade the
defendant would regularly whip him and his younger brother whenever they received a grade
lower than a “B.” He testified that these “beatings” occurred at least every six weeks, when
report cards were issued. G.S. said that the defendant initially used a weight belt, described as a
wide belt worn by persons for back support while lifting weights, that the defendant then
progressed to a braided telephone cord, and that the defendant then began using a braided
extension cord which sometimes had a wire woven into the braid and duct tape wrapped around
the wire. According to G.S., the defendant would administer this punishment in the boys’
bedroom. The defendant would require the boys to bend over and would then strike them “on
the back or the butt” while they were fully clothed or in their underwear. G.S. said that the pain
from these incidents would last “sometimes weeks, sometimes days” and when asked what he
did for the pain, G.S. responded that he would “ignore it.”

The victim then was asked about the incident on March 1, 1998,2 which was the basis for
the first indictment charging the defendant with aggravated child abuse. G.S. said that he had
just received “some low grades” and described what happened when he returned home:

It always started as like I would have to bend over and then he hit
me with the extension cord, and this time it had coat hangers
braided around it and then the extension cord and duct tape at the
end. And I would fall, and if I fell, he’d hit me on my back until I
had to get up.

Q. What did it feel like when he was hitting you with the
extension cord?

1
There were two defendants at the trial, the defendant, Anderson To liver, the victim’s stepfather, and Annie
Toliver, the defendant’s wife and the victim’s natural mother (“Mrs. Toliver”). Mrs. Toliver was convicted of a lesser
offense and did not appeal the conviction. Therefore, the references in this op inion to the “defendant” are to Anderson
Toliver.

2
The victim’s testimony on direct examination as to the March 1 incident consists of two pages in the trial
transcript, while his detailing of the April 9 inciden t consists of appro ximately nineteen pag es.

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 A. At first it was like – the first contact it would be like a real
pain, numbness, and then increase. Like at first I couldn’t feel
anything and then it was just like all coming in together and it hurt
real bad.

G.S. then described in much greater detail the April 9, 1998, incident,3 saying that while
he was in his room, the defendant came in, forced him to bend over, and hit him twice with the
braided extension cord, this time without the added coat hangers and duct tape. When he then
stood up and refused to bend over again, the defendant grabbed his neck and tried unsuccessfully
to force him to bend over. The defendant then began punching and choking G.S. with his hands,
then gave the braided extension cord to the victim’s mother, and then began choking G.S. again.
The victim said that he was in “lots of pain,” that his “neck was hurting,” and that his throat was
“hurting real bad.” After this, G.S. fell to the floor, and the defendant retrieved the braided cord
from the victim’s mother and began swinging it again. When the victim grabbed at the cord, the
defendant wrapped it around his neck and began lifting him from the floor and slinging him
around the room. G.S. fell against the handlebars of some bicycles and the wooden bunk bed in
the room. G.S. then fell to the floor, but, before losing consciousness for a couple of seconds,
the victim heard his mother call the defendant’s name. At this point the defendant released the
extension cord and left the bedroom. The victim caught his breath, ran to a neighbor’s
apartment, and called the police. G.S. described his condition when he arrived at his neighbor’s
house:
I wasn’t really feeling any pain, I guess it was trembling. I was
just crying. I remember crying a lot. And then when the police
got there, that’s when it started hurting, like I noticed I had a real
bad scar on my eye, real bad. I don’t know how it got there, I just
know my eye was like a cherry. And my throat was hurting real
bad. I had like scratch marks on my neck, things like that. My
ribs were hurting, because I hurt my ribs before playing football. I
hit the same rib that I had hurt when I hit the bicycles.

The victim’s twelve-year-old half brother, J.N., testified that he had been removed from
his home with his mother and the defendant and was living at the Tennessee Baptist Children’s
Home at the time of trial. He acknowledged that the defendant had whipped him and the victim
with a belt and with an extension cord which was wrapped around itself. He said that the
defendant made them empty their pockets before the whippings to make sure they did not have
any padding, and made them bend over and stretch out their hands. He said that the defendant
had whipped him “hard” with the extension cord “like maybe three times,” but that he “got
smart” and “learned [his] lesson.” When asked about the victim, J.N. said he did not think that
G.S. had learned his lesson “because he repeatedly got it.”

3
The indictment for this incident charged both defendants with aggravated child abuse.

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 J.N. further testified that the whippings hurt “pretty bad” for a few days. However, in a
prior statement given to a detective at the Red Bank Police Department, J.N. had said that “after
being punished in this manner, the bruises and whelps [sic] lasted about three weeks” and that he
“could not sit without a cushion of some sort for about four days.” J.N. said that he did not
consider these whippings to be beatings and that he believed he deserved the whippings the
defendant had given him. J.N. also testified that the victim had “a problem telling the truth
sometimes.” When asked to explain, J.N. said the victim had tried to change his grades on his
report card once “because he knew he was going to be in trouble for the grades” and that the
victim “was always lying about something. . . .”

J.N. identified the extension cord admitted into evidence and said that it looked exactly
as he remembered it and that he had never seen anything added to it. The prosecutor then asked
J.N. to recite from a prior statement, where he had said that the “extension cord was usually
wrapped with three pieces of coat hanger, one on each end and one in the middle” and that the
“pieces of coat hanger was [sic] then wrapped with duct tape.”

J.N. was at home on the night of April 9, 1998, but he did not see the incident between
the victim and the defendant, although he heard them scuffling. J.N. said that he went into the
victim’s room to get a knife from the victim and that he “guess[ed]” the victim had intended to
kill the defendant with it.

Officer Kim Cofer of the Red Bank Police Department testified that she responded to a
runaway call from the victim’s mother, Mrs. Toliver, on Saturday, April 4, 1998. Mrs. Toliver
told Officer Cofer that G.S. had run away before and that she thought he was at his
grandmother’s house. Mrs. Toliver called Officer Cofer the following Tuesday, April 7, 1998,
and told her she had obtained an attachment through juvenile court for the victim as an unruly
runaway. Officer Cofer then went to the victim’s school and took him into custody. While en
route to the juvenile detention unit, G.S. told Officer Cofer that he had run away because “he
was tired of being beaten like a freegin [sic] slave.” The victim told Officer Cofer that the
defendant whipped him with an extension cord when he did not make good grades in school.

Officer Cofer further testified regarding the statements that the victim gave to police on
April 10, 1998. G.S. said that he had been beaten with a “braided cord,” thrown against a wall,
and punched with the defendant’s fist. She said that the victim had bruising on his right eye and
marks on his neck. Cofer identified three photographs showing injuries to the victim’s right eye
and cheek area, throat, and neck area.

Officer Jonathan Chambers, who had been with the Red Bank Police Department at the
time of the investigation, testified that on April 9, 1998, he responded to a domestic violence call
and spoke with the victim at a neighbor’s apartment. The victim was crying and very upset and
said that his stepdad beat him. Officer Chambers described his right eye as very swollen and
bleeding and said that G.S. had three claw marks on his neck.

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 Officer Chambers also went to the Tolivers’ apartment, where he spoke with the
defendant and Mrs. Toliver. Both the defendant and Mrs. Toliver knew why he was there and
were able to calmly speak to him about what had happened, although the defendant appeared
“kind of upset.” The defendant told Officer Chambers that he was gone a lot on work-related
travel, that G.S. had run away and had some problems with his grades while he was gone, and
that he had told G.S. to expect “a whipping” when the defendant arrived home. When the
defendant arrived home he told G.S. to get ready for his whipping. When G.S. emptied his
pockets he had a knife in his hand. The defendant took the knife and then hit G.S. once with the
extension cord and then the victim turned around and refused to bend over, at which point the
defendant said he grabbed G.S. by the throat and pushed him against the wall.

Officer Timothy Thompson, of the Red Bank Police Department, also responded to the
domestic violence call on April 9. He stayed with the victim while other officers spoke with the
Tolivers. Officer Thompson later spoke with Mrs. Toliver, having returned to the Tolivers’
apartment at the request of a detective to retrieve the electrical cord. Officer Thompson related
his conversation with Mrs. Toliver as follows:

She stated that the disciplinary actions took place upon the
outcome of their report cards: If they got goods [sic] grades, there
was no problem; if they had a bad report card, they were punished.
The action taken was punishment with an extension cord that was
entwined and then it was tied on both ends and in the middle with
a piece of coat hanger and duct tape wrapped around each strands
[sic] of the coat hanger. At which time, as the disciplining began,
the victims were advised to bend over, at which time they were
struck in the buttocks with this extension cord.

Detective Sergeant Jim Kyle of the Red Bank Police Department spoke with the
defendant in the booking room of the police station on April 9, 1998. The defendant, who
Detective Kyle described as “very calm, considering he had been arrested,” said that he had been
disciplining the victim with an extension cord when the victim got injured. Regarding the
manner of discipline the defendant told Detective Kyle, “I have them bend over and stretch there
[sic] arms out and tighten up their muscles and then I strike them in the buttocks area.” The
defendant also told Detective Kyle, “That’s legal, I have a right to do that.”

The following day, April 10, 1998, Detective Kyle requested the victim and his
grandmother to come to the police station to give statements. Photographs were taken of the
victim’s injuries as well. Detective Kyle said that the victim was “fairly quiet, like someone
who had just been beat down, he was just very quiet and withdrawn.”

Mark Davis lived in the apartment above the Tolivers’ apartment and also attended the
same church as the Tolivers. He said that the defendant had a “good” reputation. Davis further

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testified that the victim came to his apartment, “scratched up and somewhat out of breath, pretty
emotional,” on April 9, 1998. The victim asked to use his telephone and called the police. He
said that the victim had a “gash” in his head and a “scratch on his neck [that] looked like a
fingernail . . . had struck him.”

Wanda Davis, the wife of Mark Davis, testified that when the victim came to their
apartment, he was “very distraught, crying, sweating, and had an injury to his face, his neck.”
Mrs. Davis asked the victim if the defendant had “punch[ed]” him because she knew that the
victim and the defendant did not get along, but the victim told her he had hit his head on the bed.
Mrs. Davis said she put an ice pack on the victim’s head and some ointment on his neck.

Mrs. Toliver testified that she married the defendant in June of 1995, when the victim
was thirteen years old. She described the victim as “very smart,” “very capable,” and “very
talented.” She said that the victim had acted “indifferent” toward the defendant after their
marriage and that the victim had never told her about his feelings toward the defendant. Mrs.
Toliver said that upon their marriage she and the defendant had agreed that the defendant would
be the parent responsible for administering discipline to her children. During the whippings,
which she said occurred every four or five months, the defendant would hit the victim, “two to
three times on the butt.”

Mrs. Toliver testified that she had two previous interactions with juvenile court regarding
the victim, the first being in 1996 when the victim stole a shirt from Sears, and the second being
when he ran away on April 3, 1998. Regarding the runaway incident, Mrs. Toliver said that the
victim did not bring his report card home on March 27, 1998, when it was issued, and that he had
been skipping classes. On April 1, 1998, she went to the victim’s school and obtained a copy of
his report card and then grounded the victim and removed him from the school’s track team of
which he was a member. On Friday, April 3, 1998, the victim did not come home from school,
so she filed a missing person’s report the next day with the Red Bank Police Department. The
following Monday, April 6, 1998, Mrs. Toliver went to the juvenile court and filed a runaway
attachment on the victim. She said that the victim was taken into custody on Tuesday, April 7,
1998, and she picked him up from the juvenile detention facility later that same evening.

Mrs. Toliver said that on the evening of April 9, 1998, the defendant went into the
victim’s room to discipline him. She said that she “kind of stood in the doorway,” of the
victim’s room, and the defendant handed her a knife he had taken from the victim. She gave the
knife to J.N. and told him to put it in the kitchen. The defendant asked the victim to bend over a
barrel, which she described as a “big plastic tub . . . maybe 10 or 20-gallon tub,” and then hit the
victim with the extension cord. The victim stood up and “came” at the defendant. The
defendant handed her the extension cord and then pushed the victim back and subdued him on
the floor. She said the victim “kind of calmed down and quit tussling with [the defendant].”
The defendant then told the victim to get up and bend over again, and the victim complied. The
defendant hit the victim again with the extension cord, and the victim “came” at the defendant

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again. The two began “tussling” again, and Mrs. Toliver said she screamed at them to stop
fighting. Mrs. Toliver testified that the defendant then backed off and walked out of the room.
The victim was breathing “kind of hard” and ran out of the room and went to the Davises’
apartment.

Mrs. Toliver said that she never saw the defendant hit the victim in the face and did not
see the victim hit the defendant, although she did see the victim make a gesture toward the
defendant. Mrs. Toliver did not know how the victim got hurt, but speculated that he could have
hit his head on some of the furniture in the room.

Mrs. Toliver acknowledged asking police when they arrived to arrest the defendant,
“Why are you taking Anderson in, why not take both of them in, they were both fighting.” She
also acknowledged telling the police officer who later came to her apartment to retrieve the
extension cord that it normally had “coat hanger wire wrapped around it to hold it steady” and
had “duck tape wrapped around the wire so that the wire wouldn’t be exposed.”

William Russell, testifying as a character witness for Mrs. Toliver, said that he had
attended the same church as Mrs. Toliver prior to her marriage to the defendant. He had also
sold a car to the Tolivers. Russell said that he felt like he knew the defendant “very well,” that
the defendant’s reputation in the community was “excellent,” and that he knew Mrs. Toliver’s
“children well enough to know that if they were being beat [sic], they would tell [him].”

Grace Hughley testified that the defendant had a good general character reputation in the
community, that his reputation for telling the truth was good, and that she would believe his
testimony under oath.

Also testifying on behalf of the defendant was Douglas Daugherty, president of
Chattanooga Resource Foundation, who said that he first met the defendant in 1993, when the
defendant was selected to participate in a leadership development program through the
Foundation. Daugherty stated that he knew the defendant “fairly well,” that his reputation was
“excellent,” and that he would believe him under oath in a court of law.

Melvin Benford testified that he had known and attended church with the Tolivers for
seven years. He said that the defendant’s reputation was “good” and that he had never seen the
defendant beat the victim.

Aqua Peoples, a teacher at Ringgold Middle School, testified that she had known and
attended church with the Tolivers. She said that the defendant’s reputation was “very good” and
that she would believe him under oath in a court of law. She knew that the defendant believed in
disciplining the children, but he had not told her how he went about doing so.

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 Tom Weathers, a teacher and football coach at Red Bank High School, testified that the
victim was a member of the football team during the 1997 season. He related three infractions
involving the victim at school and said that the victim was not truthful when questioned about
the first incident. After the third incident, during which the victim had spoken to Weathers “in a
distasteful way” and Weathers told the victim to get his attitude “straight,” the victim stopped
playing football. Weathers said he had no problems with the victim after that.

The defendant testified that, at the time of the trial, he was fifty-one years old and had
children from a previous marriage. He was self-employed as a photographer, the owner of a
vending machine business, and the seller of health products. As the result of these occupations,
he traveled a great deal, always by automobile. He met the victim’s mother in 1993, at a gospel
record store, and they were married two years later. After their marriage, he moved into the
apartment with Mrs. Toliver and her sons. Because of a change in jobs, he began traveling in
1997, apparently when he and his wife began their business. From the time of their marriage to
his last contact with the victim, just after the April 9 incident, the defendant said he had
“whipped” the victim “about twice.” A more common punishment, according to the defendant,
was to “ground” the victim to his room. Although it was possible that he had whipped the victim
during the six months prior to April 9, the last time that he recalled doing so was in 1996, when
the victim stole a shirt from Sears. The defendant denied whipping the victim on March 1 and
said that he had been in Mississippi on business on that date. The defendant said that during the
prior three years, he had whipped the victim’s brother, J.N., “probably twice.”

As for the April 9 incident, the defendant explained that he had been out of town that
week and had asked his wife if the victim had brought home his report card. Learning that he
had not, the defendant and his wife discussed that she should go to the victim’s school to get it.
He said that he arrived back in Chattanooga the morning of April 9 and, after attending to some
business, arrived home at about 4:30 p.m. Both of his stepsons were home, and, after he had
picked up his wife at work, they arrived back at the apartment at about 6:00 p.m. He said that,
when he and his wife discussed in the early evening what to do, he was tired and did not want to
deal with the victim. After some additional discussion, he told his wife that he had “promised
[G.S.] that if he didn’t bring those grades up on the last report card, we’re going to deal with
that.” He said that, in view of the unsatisfactory report card, as well as a fake report card the
victim had given them, “I’m left with no choice, I have to carry it out. And that’s exactly what I
did.”

The defendant said that he walked into the victim’s room and asked him to empty his
pockets. The victim then pulled a “small, straight [kitchen] knife” from his pocket, and said, “in
a very angry tone,” and with a frown on his face, that he was going to kill the defendant with it.
The victim did not resist, however, as the defendant took the knife from his hand. The defendant
then went to another room, got the braided cord, and returned to the victim’s bedroom,
instructing him to “bend over.” The defendant struck the victim once with the cord, “moderate,

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nothing hard,” but did not believe that the blow “stung” because the defendant “didn’t really
apply a lot of pressure.”

The victim then stood up and grabbed the defendant by the collar, something the victim
had never done before. The defendant reacted by grabbing the victim by the collar and pushing
him against the bed, against the wall, and then pulling him to the floor “to subdue him.” The
victim complied as the defendant told him to bend over again. The defendant asked Mrs. Toliver
to hand him the braided cord, and, after she had done so, he hit the victim with it again.

The victim then stood up again and raised his fists, approaching the defendant in a
“fighting stance.” The defendant first asked, “Do you want to fight me . . .?” After his wife
called his name, however, he instructed G.S. to “just stay in the room, we’ll talk about this later.”
He denied putting the cord around the victim’s neck, and said that his fingernails caused the
“claw marks” on the victim’s neck. He speculated that the injuries to the victim’s face might
have occurred when, during the struggle, the victim hit the dresser.

During cross-examination, when asked about previously whipping the victim, the
defendant testified that he had once whipped him with a belt. He denied that he had braided the
extension cord, saying that “[t]he cord was already there, it’s not one I bought.” He said that he
had used “maybe twice” the braided cord with only one coat hanger wrapped around it, and held
in place with duct tape, not three coat hangers. Both of these incidents preceded that of April 9,
as did his use of a belt to whip the victim.

Based upon this evidence, the jury found the defendant guilty of both counts of
aggravated child abuse, and the trial court later imposed a nine-year sentence for each conviction
and ordered that these sentences be served concurrently. The Court of Criminal Appeals
affirmed the trial court’s judgment. We granted the defendant’s application for permission to
appeal.

II. Sufficiency of the Evidence
The defendant initially contends that the evidence is insufficient to support the jury’s
verdict. The proper inquiry for an appellate court reviewing a challenge to the sufficiency of the
evidence is whether, considering the evidence in a light most favorable to the prosecution, any
rational trier of fact could have found the essential elements of the crime beyond a reasonable
doubt. See Jackson v. Virginia, 443 U.S. 307, 99 S. Ct. 2781, 61 L. Ed.2d 560 (1979); State v.
Hall, 8 S.W.3d 593, 599 (Tenn. 1999). The prosecution is entitled to the strongest legitimate
view of the evidence in the record, as well as all reasonable and legitimate inferences which may
be drawn therefrom. State v. Bland, 958 S.W.2d 651, 659 (Tenn. 1997). "A guilty verdict by
the jury, approved by the trial court, accredits the testimony of the witnesses for the State and
resolves all conflicts in favor of the prosecution's theory." Id. Questions about the credibility of
witnesses, the weight and value of the evidence, as well as all factual issues raised by the

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evidence are resolved by the trier of fact, and this Court does not re-weigh or re-evaluate the
evidence. Id. Nor may this Court substitute its inferences drawn from circumstantial evidence
for those drawn by the trier of fact. See State v. Carruthers, 35 S.W.3d 516, 557-58 (Tenn.
2000); Liakas v. State, 286 S.W.2d 856, 859 (Tenn. 1956).

With these principles in mind we must determine whether the evidence in this record is
sufficient to support the jury’s verdict. We begin with the definition of the conviction offense.
The offense of child abuse is committed when a person “knowingly, other than by accidental
means, treats a child under eighteen (18) years of age in such a manner as to inflict injury.”
Tenn. Code Ann. § 39-15-401 (1997 & Supp. 2002). The offense of aggravated child abuse is
committed when (1) the act of child abuse results in “serious bodily injury” to the child or (2) the
act of child abuse is accomplished with a “deadly weapon.” Tenn. Code Ann. § 39-13-402(a)
(1997). A “deadly weapon” is defined as:

(A) A firearm or anything manifestly designed, made or adapted
for the purpose of inflicting death or serious bodily injury; or (B)
Anything that in the manner of its use or intended use is capable of
causing death or serious bodily injury.

Tenn. Code Ann. § 39-11-106(5) (1997) (emphasis added). “Serious bodily injury” is defined as
injury involving:

(A) A substantial risk of death; (B) protracted unconsciousness;
(C) extreme physical pain; (D) protracted or obvious
disfigurement; or (E) protracted loss or substantial impairment of a
function of a bodily member, organ or mental faculty.

Tenn. Code Ann. § 39-11-106(34) (1997) (emphasis added).

As to the March 1 incident, the defendant was charged with and convicted of aggravated
child abuse by use of a deadly weapon. The victim testified that the defendant struck him on the
buttocks with a heavy-duty extension cord wrapped with coat hangers and duct tape. The victim
stated that the extension cord was braided several times to increase its thickness. The victim
testified that the beating initially felt like “real pain,” and that the pain then increased. The
victim further explained that the pain “hurt real bad” after a period of numbness. Viewing this
evidence in the light most favorable to the prosecution, as we are required to do, we conclude
that the evidence is sufficient to support this conviction.

The defendant also was charged with and convicted of aggravated child abuse by use of a
deadly weapon as a result of the April 9 incident. The victim testified that the defendant struck
him twice with the braided extension cord, wrapped the cord around his neck, then began
slinging him around the room, causing the victim to strike objects and furniture in the room and

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to sustain injuries to his ribs, neck, and face. Several witnesses corroborated the victim’s
testimony regarding injuries to his face and neck, and the prosecution introduced photographs of
these injuries at trial. Again considering the proof in the light most favorable to the State, the
evidence is sufficient to support the jury’s verdict finding the defendant guilty of aggravated
child abuse for the April 9 incident.

III. Consolidation of Indictments
Having concluded that the defendant is not entitled to a judgment of acquittal as a matter
of law, we next consider whether the trial court erred in permitting the prosecution to consolidate
the indictments for trial.

The prosecution obtained separate indictments for the incidents that occurred on March 1
and April 9, 1998. On the morning of trial, the State moved to dismiss several aggravated
assault charges against the defendant. When the motion was granted, defense counsel asked the
trial court “to proceed on the April 9 incident . . . and not the March 1 incident” because they
were “two separate offenses that [were] six weeks apart . . . .” The State then orally moved to
consolidate the charges, stating that the parties had been “under the understanding that we were
trying these cases together . . . and at no time was it ever brought up that they would be tried
separately.” The State argued that consolidation was appropriate based on the existence of a
common scheme or plan because “in both of these cases the allegations will be that the
defendant hit the child with the same braided extension cord . . . .” The defendant argued that
although each incident involved corporal punishment, the incidents were not so unusual or
peculiar as to reveal a distinctive design.

The trial court agreed with the prosecution, however, stating that the March 1 and April
9, 1998. incidents were identical to one another in several key respects and that proof of each
offense was relevant to prove the defendant’s intent as to the other offense. The trial court
therefore granted the State’s oral motion to consolidate. In the Court of Criminal Appeals, the
defendant challenged the trial court’s decision to consolidate the offenses. However, the Court
of Criminal Appeals did not address the issue on the merits, finding that it had been waived.

Initially, we disagree with the Court of Criminal Appeals’s conclusion that the defendant
failed to preserve the issue for appeal. Although the prosecution stated that the parties had an
informal understanding that the indictments would be tried together, the simple fact is that the
record does not reflect that the prosecution made a written or oral motion for consolidation prior
to trial or that the parties had entered into an agreed order of consolidation prior to the first day
of trial. See Spicer v. State, 12 S.W.3d 438, 444 n.6 (Tenn. 2000) (indicating that a motion for
consolidation should be filed “sometime earlier than the day of the trial when the jury is waiting
in the hall”). Because of the prosecution’s tardiness in moving to consolidate the indictments,
the State must share responsibility with the defendant for the absence of a clear agreement and
the lack of clarity in the record. This Court has explained:

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 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.

Id. at 444. Therefore, we disagree with the Court of Criminal Appeals’s conclusion that waiver
applies to this issue. Having so concluded, we will address this issue on the merits.

Consolidation of multiple offenses against a single defendant in a single trial is governed
by Rules 8, 13, and 14 of the Tennessee Rules of Criminal Procedure. As relevant to this appeal,
Rule 8(b) of the Tennessee Rules of Criminal Procedure provides that “[t]wo or more offenses
may be joined in the same indictment, presentment, or information, with each offense stated in a
separate count or consolidated pursuant to Rule 13 if the offenses constitute parts of a common
scheme or plan or if they are of the same or similar character.” Tenn. R. Crim. P. 8(b)
(emphasis added). Rule 13 allows the trial court, at its option, to consolidate or sever offenses
for trial in those instances where either the prosecution or the defense could have elected to
consolidate or sever. See Tenn. R. Crim. P. 13, Advisory Commission Cmts. Rule 13 provides:

(a) Consolidation. The court may order consolidation of two or
more indictments, presentments, or informations for trial if the
offenses and all defendants could have been joined in a single
indictment, presentment, or information pursuant to Rule 8.

(b) Severance. The court may order a severance of offenses or
defendants before trial if a severance could be obtained on motion
of a defendant or of the state pursuant to Rule 14.

Tenn. R. Crim. P. 13. Finally, Rule 14 instructs that where “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.” Tenn. R. Crim. P. 14(b)(1)
(emphasis added). Under this provision, the defendant has an absolute right to have offenses
separately tried unless the prosecution shows that the offenses are part of a common scheme or
plan and evidence of each crime would be admissible in the trial of the others. Spicer, 12
S.W.3d at 443.

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 We have considered the interaction and function of Rules 8, 13, and 14 of the Tennessee
Rules of Criminal Procedure in a series of recent cases. See Spicer v. State, 12 S.W.3d 438
(Tenn. 2000); State v. Moore, 6 S.W.3d 235 (Tenn. 1999); State v. Shirley, 6 S.W.3d 243 (Tenn.
1999). Moore and Shirley involved multi-count indictments, with the defendant in each case
requesting that certain counts be severed and tried separately. Spicer is most similar to this case
because it involved the consolidation of two separate indictments for a single trial. The
following excerpt from Spicer is instructive:

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 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.

Spicer 12 S.W.3d at 443-44 (emphasis added). Thus consolidation is proper only if the trial
court concludes that

(1) the multiple offenses constitute parts of a common scheme or
plan; (2) evidence of each offense is relevant to some material
issue in the trial of all the other offenses; 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.

Id. at 445 (citations omitted). When a defendant objects to a motion to consolidate, the
prosecution bears the burden of producing evidence to establish that consolidation is proper. Id.
at 447.

In deciding whether consolidation was proper in this case, we first must determine
whether the prosecution offered evidence to establish that the offenses constitute parts of a

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common scheme or plan.4 “[T]here are three types of common scheme or plan evidence: (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 transaction.” Shirley, 6 S.W.3d at 248 (citing Neil P. Cohen et al.,
Tennessee Law of Evidence § 404.11, at 180 (3d ed. 1995)). Although neither the prosecution
nor the trial court clearly indicated which category applied in this case, the statements made at
the hearing suggest that both relied upon the distinctive design or “signature” crimes category.5
To reiterate, when ruling on the motion to consolidate the trial court stated as follows:

Since the crimes . . . are identical in every feature, the same place,
the same room, the same method of administering this type of
injury, the same weapon, or the same object . . ., they’re so
identical to each other, going to that issue of intent, I’m going to
allow the State to proceed on both of these indictments.

We are constrained to disagree with the trial court’s conclusion. Although offenses may
be similar in many respects, “they cannot be classified as signature crimes if they lack a distinct
modus operandi.” Shirley, 6 S.W.3d at 248. The “modus operandi” must be “so unique and
distinctive as to be like a signature.” Moore, 6 S.W.3d at 240. Although the offenses need not
be identical in every respect, the method employed in committing the offenses must have “‘such
unusual particularities that reasonable men can conclude that it would not likely be employed by
different persons.’” Shirley, 6 S.W.3d at 248 (quoting Harris v. State, 227 S.W.2d 8, 11 (Tenn.
1950)). Indeed, the term “modus operandi” has been defined as “‘[m]ethod of operating or
doing things (M.O),’” and it is a “‘[t]erm used by police and criminal investigators to describe
the particular method of a criminal’s activity.’” Shirley, 6 S.W.3d at 250 n.19 (quoting Black’s
Law Dictionary 1004 (6th ed. 1990)) (emphasis added).

While the March 1 and the April 9 incidents share a number of similarities, the method
employed in committing the offenses does not constitute a modus operandi so unique and
distinctive as to be comparable to a signature. According to the evidence offered by the
prosecution, the defendant and the victim were alone in the victim’s bedroom during the March
1 incident. The defendant struck the victim on the buttocks with a heavy-duty extension cord
that was braided with wire and wrapped with duct tape. The incident developed from the victim
receiving poor grades on his report card. The April 9 incident developed from the victim failing
to bring home his report card, receiving poor grades on his report card, and running away from
home after his mother obtained a copy of his report card from his school. While the defendant
and the victim were again in the victim’s bedroom, on this occasion the victim’s mother was

4
As the Court of Criminal Appeals noted, the proceedings on the consolidation issue were shortened by the fact
that the matter was not raised until the first mo rning of the trial. Ou r analysis in such circumstances necessarily requires
review of the evidenc e at trial.
5
Indeed, as the defense points out, the prosecution offered no evidence to establish the second or third
category.

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standing in the doorway of the room. While the defendant again used a braided extension cord
to strike the victim on the buttocks, the extension cord was neither braided with wire nor
wrapped with duct tape during the April 9 incident. In addition, during the April 9 incident, the
victim was required to lean over a “barrel” or a “big plastic tub,” a fact different from the March
1 incident. Furthermore, the prosecution introduced proof to show that during the April 9
incident the defendant wrapped the extension cord around the victim’s neck and jerked him
around the room, causing the victim to strike objects and furniture in the room, to sustain injuries
to his abdomen, neck, and face, and to lose consciousness. In short, the evidence relating to the
method employed to commit the April 9 offense is markedly different from the proof relating to
the method employed to commit the March 1 incident. See Shirley, 6 S.W.3d at 249 (“Because
of the differences in the commissions of the robberies, we are unable to say that a distinct or
unique modus operandi was used.”). Here, as in Spicer, Shirley, and Moore, the trial court erred
in concluding that the multiple offenses constitute parts of a common scheme or plan.

Furthermore, evidence of each offense was not relevant to prove a “material issue in the
trial” of the other offense as is required by the second prong of Rule 14(b)(1). The general rule
is that evidence of prior crimes, wrongs or acts is not admissible to establish a defendant’s
propensity or character, yet such evidence may be “admissible for other purposes.” Tenn. R.
Evid. 404(b); see also Moore, 6 S.W.3d at 239. The other purposes may include evidence of
“the motive of the defendant, intent of the defendant, the identity of the defendant, the absence
of mistake or accident if that is a defense, and rarely, the existence of a larger continuing plan,
scheme, or conspiracy of which the crime on trial is a part.” State v. Gilliland, 22 S.W.3d 266,
271 n.6 (Tenn. 2000).

Even if the State had shown that the crimes were parts of a common scheme or plan,
consolidation would have been proper only if the evidence of each offense was relevant to prove
a material issue in the trial of the other offense. This Court has emphasized that “identity is
usually the only relevant issue supporting admission of other offenses when the theory of the
common scheme or plan is grounded upon a signature crime.” Moore, 6 S.W.3d at 239. In the
present case, identity was clearly not at issue. There is no question that the victim identified the
defendant as his abuser, and the defendant never argued that the offenses were committed by
someone else. See id. In addition, intent was not a material issue. Thus, the trial court erred in
concluding that the evidence of each offense was relevant to prove intent as to the other offense.
As the defense points out, this Court has previously held in State v. Ducker, 27 S.W.3d 889, 896-
97 (Tenn. 2000) and State v. Mateyko, 53 S.W.3d 666, 673 (Tenn. 2001), that child abuse is a
“nature-of-conduct” offense. As such, the prosecution need not prove that the defendant
“intended” to cause injury to the child. Furthermore, the trial court in this case did not explain
how the evidence of each offense was relevant to prove intent as to the other offense. Indeed,
the defendant in this case was charged with aggravated child abuse by use of a deadly weapon.
To obtain a conviction on this charge, the prosecution needed only to prove that the defendant
knowingly treated the victim in a manner that caused injury and that the act causing injury was
accomplished with a deadly weapon, which is “[a]nything designed, made or adapted for the

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purpose of inflicting death or serious bodily injury” or something “that in the manner of its use
or intended use is capable of causing death or serious bodily injury.” Intent simply was not
relevant given the charges in this case, and we are unable to discern another issue to which the
evidence of each offense was relevant and admissible.

In sum, the March 1 and April 9 offenses did not constitute parts of a common scheme or
plan, and the evidence of each offense was not relevant to any material issue in the trial of the
other offense. Therefore, we hold that the trial court erred in consolidating the indictments.

IV. Harmless Error Analysis
Having determined that the trial court abused its discretion in consolidating the
indictments over the defendant’s objection, we must next consider whether the error more
probably than not affected the judgment. See Tenn. R. Crim. P. 52(a); Tenn. R. App. P. 36(b);
Spicer, 12 S.W.3d at 447. We have previously recognized that “‘the line between harmless and
prejudicial error is in direct proportion to the degree . . . by which proof exceeds the standard
required to convict . . . .’” Spicer, 12 S.W.3d at 447-48 (quoting 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. “The more the
proof exceeds that which is necessary to support a finding of guilt beyond a reasonable doubt,
the less likely it becomes that an error affirmatively affected the outcome of the trial on its
merits.” Gilliland, 22 S.W.3d at 274.

Although the evidence supporting the convictions is legally sufficient, it is hardly
overwhelming. Indeed, the March 1 conviction was based solely upon the testimony of the
victim. The victim was subjected to vigorous cross-examination as to his truthfulness, and the
defense offered two witnesses, including the victim’s brother, who provided examples of the
victim being untruthful in the past. Furthermore, the defendant presented an alibi, testifying that
he had been out of town in Mississippi on March 1, 1998.

Additionally, the proof as to the April 9 incident was disputed. While all witnesses
testified that the defendant struck the victim with the braided extension cord, the defendant and
Mrs. Toliver testified that the defendant did not place the extension cord around the victim’s
neck or jerk the victim around the room. Finally, the defense offered several witnesses who
described the defendant’s general character and reputation for truthfulness as “excellent” or
“good.”

Also relevant to the harmless error analysis in this case is the fact that the jury heard
evidence of each offense even though this evidence was wholly irrelevant. Moreover, this error
was exacerbated by the erroneous admission of additional irrelevant evidence of uncharged acts
of abuse involving the victim and the victim’s brother. The prosecution made extensive use of
this inadmissible evidence, both in opening statements and in closing argument. When evidence
of other crimes, wrongs, or acts is offered, “a real probability exists . . . that the jury could be

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tempted to convict based upon a defendant’s propensity to commit crimes rather than convict
solely upon evidence relating to the charged offense.” Spicer, 12 S.W.3d at 448; see also State
v. James, 81 S.W.3d 751, 758 (Tenn. 2002) (noting that “the admission of other-acts evidence
poses a substantial risk that a trier of fact may convict the accused for crimes other than those
charged”). That probability is especially great in this case where a great deal of the evidence
presented should have been excluded. Therefore, after reviewing the record we conclude that the
erroneous consolidation of the indictments combined with the erroneous admission of additional
evidence of other uncharged acts of abuse involving the victim and the victim’s brother
affirmatively appear to have affected the verdict of the jury. Accordingly, new trials are required
to ensure that these verdicts were not the result of unfair prejudice. See Spicer, 6 S.W.3d at 251.
Other issues raised by the defendant are therefore pretermitted.

V. Conclusion
After reviewing the record and applicable authority, we hold that the evidence was
sufficient to support the jury’s verdicts, that the trial court abused its discretion in consolidating
the indictments, and that this error, in conjunction with the erroneous admission of evidence of
other uncharged crimes, wrongs or acts of abuse, affirmatively appear to have affected the jury’s
verdict. Accordingly, the judgments of the trial court and Court of Criminal Appeals are
reversed. These cases are remanded for new trials at which evidence of other crimes, wrongs, or
acts committed by the defendant against the victim or others shall not be admitted unless
relevant to a material issue at trial. The costs of appeal are taxed to the State of Tennessee, for
which execution shall issue if necessary.

____________________________________
FRANK F. DROWOTA, III,
CHIEF JUSTICE

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