# FILED
April 24, 1997 Cecil W. Crowson Appellate Cou rt Clerk IN THE COURT OF CRIMI NAL APPEALS OF TENNESSEE

AT NASHVILLE MARCH 1997 S ESSION

STATE OF TENNESSEE, ) ) Appellee, ) No. 01C01-9605-CR-00214

) ) Davidson County v. ) ) Honorable Thomas H. Shriv er, Judge ) WILLIAM L. POSEY ) (Aggravate d robbery) a.k.a LEM POSEY, ) ) Appellant. ) For the Appellant : For the Appellee : F. Michie Gibson, Jr. John Knox Walkup 1416 Parkway Towers Attorney General of Tennessee 404 James Robertson Parkwa y and Nashville, TN 37219 Anthony D. Miller Assistant Attorney Gener al of Tennessee 450 James Robertson Parkwa y Nashville, TN 37243-0493 Victor S. Johnson, III District Attorney General and Nicholas Bailey Pam Anderson Assistant District A

ttorneys General Washington Square 222 2nd Avenue North Nashville, TN 37201-1649

OPINION FILED:____________________
AFFIRMED Joseph M. Tipton Judge2 O P I N I O N
The defendant, William L. Posey a.k.a. Lem Posey, was convicted in a jury tria l in Davidso n County Cr iminal Co urt of se ven count s of aggrava ted robb ery, a Class B felony. As a R ange II, multiple offender, he recei ved an effective sentence of sixty-four years in the Department of Correction consecutive to a previous life sentence imposed in Georgia. In this appeal as of right, his only issue is whether the trial court ab us ed its d is cr

et io n by r

ef us in g t o s ev er th e v ar io us ch ar ge s for se pa ra te tr ia ls . We hold that the trial court’s refusal was proper.

The defendant was convicted of ag gravated robbery r elative to the following places and times: Dollar General Store, N ollensville Rd. Sept. 16, 1993 12:45 p.m. Dollar General Store, N ollensville Rd. Nov. 20, 1993 7:55 p.m. Dollar General Store, Leba non Rd. Nov. 23, 1993 6:00 p.m. Dollar General Store, Antioch Pike Dec. 4, 1993 6:15.p.m. Family Dollar Store, Gallatin Rd. (2 victims) Dec. 8, 1993 5:45 p.m. Dollar General Store, Antioch Pike Jan. 11, 1994 6:50 p.m. The defendant was also charged w ith aggravated robber

y at a Wendy’s restaurant on December 12, 1993, but the jury acquitted him of this charg e.
The proof reflects that in each stor e, the defendant entered, shopped around as a normal customer, approached the cash ier with a purchase, pulled a firearm when the cashier rang up the purchase, ordered the cashier to give him the money in the register, usually

demanding the money under the ti ll box, as well,had the money placed in a store customer bag , and walked out. In the Wendy’s robber y, the defendant approached the counter, had the cashier take the money from the cash drawer, including under the til l box, had the money placed in a Wendy’s bag, and walked out.

The defendant did not attempt to mask his appear ance. In each instance, store employees identified the defenda nt as the perpetrator. Police matched his3

fingerprints with those of the perpetrator in the January 11, 1994, Dollar Gene ral Store robbery. Also, the defendant admitted to an F.B.I. agent that he r obbed the Dollar General Stores on November 18 and December 4, 1993, and the Family Dollar Store on Gallatin Road.

In this appeal, the defendant’s arg ument in his brief consists s olely of the following: A defendant is entitled to sever ance ofoffenses unless the offenses are p art of a common scheme or plan and the e vidence o f one would be admissible upon th e trial of the others. Th e court should also grant a severance of offenses if appropriate to promote a fair determination of the defe ndant’ s guilt or innocence of each offense. State v. Lunati , 665 S.W.2d 739 (Tenn. Crim. App. 1983). There is no specification of how his case circumstances meet the criteria for sever

ed trials. And we find none i n the record.

In this respect, we note that the record fails to incl ude the transcript of the hearing apparently hel d by the trial court at which the severance issue was presented. However, the defendant’s motion in the trial court i s in the record, its thr ust being that the fact of separate victims and s eparate dates should allow for separate trials to promote a fair determination of the defendant’s guilt or innocence.
Pursuant to Rule 14(b)(1) , Tenn. R. Crim. P., “the defendant s hall have a right to a severance of the offenses un less the offens es are part o

f a common scheme or plan and the evidence of one w ould be admissible upon the tri al of the others.” Also, pursuant to Rule 14(b)(2) , a severance will occur if “it is deemed approp riate to promote a fair determination of the defen dant’s guilt or innocence of each offense.”

In State v. Hallock , 875 S.W.2d 285 (Tenn. Crim. App. 1993), authored by now Chief Justice A. A. Bi rch, this court prov ided an excellent analy sis of the4

requirements under Rule 14 (b)(1) for having a trial with consoli dated offenses. It emphasized that a defendant has a right to a severance unless a two-prong test is met: (1) the offenses must be part of a common sc heme or plan and (2) the evi dence of one must be admissible in the st ate’s case-in-chief upon the t rial of the others. Id. at 289. In this sense, it emphasi zed that not only must a c ommon scheme or plan be shown, but the evidence of one offense must be relevant to prov ing other offenses.
In the present case, the series of events that are similar in each of fense reflect a modus operandi that can be characterized as a si gnature by the perpetrato r. This reflects that the offenses wer e part of a common scheme or plan. See Hallock , 875 S.W.2d at 290. Moreover, such a disti nctive set of recurrent a ctions by the perpetrator of the offenses in this case would be ad missible in separate trials for each of the offenses because of its relevance to the perpetrator’s identity, an issue litigated in the present case.

Given these circumstance s and the policy consider ations regarding the efficient use of justice system r esources, see State v. Lunati , 665 S.W .2d at 74 6, we conclude that it was w

ithin the sound discretion of the trial court to deny a severance. See State v. Wiseman , 643 S.W.2d 354, 362 (Tenn. Crim. App. 1982). The judg ment of conviction is affirmed.

_______________________________ Joseph M. Tipto n, Judge5

CONCUR:

__________________________ Joe G. Riley, Judge

__________________________ Thomas T. W oodall, Judge