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.
1

There were two defendants at the trial, the defendant, Anderson Toliver, 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 opinion 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 incident consists of approximately nineteen pages.

−2−

 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?
3

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

−3−

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.” 
−4−

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. 
−5−

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
−6−

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
−7−

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.
−8−

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,
−9−

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
−10−

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
−11−

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:
−12−

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.
−13−

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
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 morning of the trial. Our analysis in such circumstances necessarily requires

review of the evidence at trial.

5

Indeed, as the defense points out, the prosecution offered no evidence to establish the second or third

category. 

−14−

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
−15−

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
−16−

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
−17−

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