### IN THE SUPREME COURT OF TENNESS EE AT KNOXVILLE January 7, 2003 Sessi on
STATE OF TENNESSEE v. ANDERSO N TOLIVER Appeal by P

ermis sion from

the Court

of Crimi nal 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 defenda

nt was co nvicted o f two counts of ag grava ted child abuse. T he trial c ourt im

posed a nine-yea r sentence for each conviction and orde red concurrent service of these sentenc es. The de fendant appealed, raising numerous issues, but the Court of Criminal Appeals aff irmed th e convictions and s entence s. We granted the defendant’s application for permission to appeal and, after thoroug hly reviewing the r

ecord, c onclude t

hat t he trial cour

t abused its discre

tion in
co nsolidating the two indictments for trial. Furthermore, we have c oncluded that the erroneo u s consolidation of the ind

ictments, in conjuncti on with the erroneous admission of evidence of other crimes, wrongs, or acts, affirmatively appears to have affected the verdi ct of the

ju ry. Ac co rd in gl y, the judgments of the trial court and C ourt of Criminal Appeals are reversed, and these cases are remande d for new trials at which evidence o f other c rimes, wr ongs, or acts committed by the defe

ndant against the victim or others shall no t b e admitted unless relevant to a material issue. Tenn. R. App.P. 11; R eversed and Rem anded for New Trials

F RANK F. D ROWOT A , III, C.J., d eliv ered the opinion of the court, in which J ANICE M. H OLDER , and W IL LI AM M. B ARKER , JJ., joined.

A DOLPHO A. B IRCH , J R ., J., filed a concurring opinion.

E. R IL EY A NDERSON , J., filed a dissenting opinion. Jerry H. Summers and Thoma s Greenholtz, Chattanooga, Tennessee, for the a ppellant, Anderson Toliver.

Paul G. Summers, Attorney Gene ral and Reporter; Michael E. Moore, Solicitor Genera l; Ang el e M. Gregory , AssistantAt torney Gene ral; William H. Cox, III , District Attorney Gene ral; and Kelli Black, Assistant District Attorney General, for the appellee, State of Te nnessee.1 There were tw o de fenda nts at the trial, the defen dan t, And erson To liver, the vic tim’s step fa ther , an d Ann ie

Toliver, the de fenda nt’s wife and the victim ’s natur al mother (“Mrs. Toli ver”). Mrs. Toliver was convict ed of a l esser offense and did not appeal the conviction. Th erefo re, the re ferenc es in this op inion to the “def endant ” are to Ander son Toliver.

2 The vic ti m’s tes ti mony on di rect ex aminat ion as t o the March 1 inci dent consi sts of two page s in t he tri al transcript, while his detailing of the April 9 inciden t consists of appro ximately nineteen pag es.

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### OPINI ON

I. Fact ual Backgro

und The defe nd ant, Ande

rson Toliv er, wasconvicted of two c ounts of a ggra vated ch ild abuse for striking his stepson, G .S., on March 1, 1998 and April 9, 1 998, with a braided heavy -duty extension cord. 1 G.S., who w as eigh teen y ears old and a sen

io r in h igh school at the time of the trial and sixtee

n ye ars old

when the

all eged in

cidents o ccurred, testifi ed as the State’s f irst witness. Befor

e being asked ab out eithe

r of th e inc idents alleged in the indictments, G.S. was questio nedabout earlier incidents of abuse and said that from the time he w as in eighth grad e th e defendant would regularly

whip him and his younger brother whenever they rec eived a grade lower than a “B .” He te stified th at these “beatings” oc curred

at le as t e ve ry six weeks, when reportcards were issued. G.S. said that the defendant initially used a weight belt, described as a wide belt worn

by p ersons f

or back s upport wh

ile liftin g weights, that the defendant then progressed

to a braided telephone cord, and that the defe ndant then began using a b raided extension cord which sometimes had a wire woven into the braid and duct tape wrapped around the wire. According to G.S., the def endant would administe r this punis hment in the boy s’ bedroom. The defendant wou ld requ ire the boys to bend ove r and would then strike them “on the back or the bu tt ” w hi le th ey were fu lly c lothed or

in their underwea

r. G.S. sa

id that the

pain from these inc idents wou

ld last “so metimes weeks, some times day s” 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 defenda nt with aggravated ch

ild abuse. G.S. said that he had just received “some low grades” a nd described what happened when he re turned home:

It alway s started

as like I would hav e to bend o ver and t hen he hit
me with the extension cord, and this time it had coat hangers braidedaround it and then the extension cord and duct tape at the end. And I

would fa ll, and if I

fell, he ’d hit me on

my b ack until

I had to get up.
Q. Whatdid it feel like when he was hi tting you with the extension cord?3 The indict ment f or thi s inci dent char ged both defe ndants w ith aggravated chil d abuse.

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− A. At first it was like – the first cont act it would be like a real pain, numbness, and then increase. L ike at first I couldn’t fee l anything and th en it w as jus t lik e all c omin g in to ge therand it hurt real bad.

G.S. then described in much greater de tail the April 9, 1998, incide nt, 3 saying that while he was in his room, the d efendant came in, forced him to bend over, a nd hit him twice with the braidedextension cord, this time without the added coat hanger s and duct tape. When he then stood up and re

fused to b end over

again, the defe

ndant g rabbed h is neck a nd tried u nsucces sfully to force h im to bend o ver. The

defenda nt then be gan punching a nd chokin g G.S . with his ha nds, then gave the braided extension cord to the victim’s mother, and the n began cho king G.S. again. The victim said that he was in “lots of pain,” that his “neck was hurting,” a nd tha t his throat wa s “hurting real bad.” After this, G.S. fell to t he floor, and the defendant retrieved the bra ided cord from the victim’s mother and began swinging it again. When the victim grabbed at the cord, the defendant wrapped it ar ound his neck and beg an lifting him from the floor a

nd slinging him aroundthe ro om. G.S. fe ll against the ha

ndlebar s of some b icy cles and the woode

n bunk bed

in the room. G.S. then fell to the floor, b ut, befor e losing consciou sness for

a couple of seconds, the victim heard h is mo ther call the defendant’s name. At this point the defendant re leased the extension cord and

left the b edroom. T

he victim c aught h

is breat h, ran to a neighbor’s apartme nt, and call ed the pol

ice. G.S. describ ed his condition whe n he arr ived at his ne ighbor’s house: I

wasn’t really

fe eling any

pain, I guess it was tre

mbling. I was just cr ying. I

re member cry

ing a lot. And then when the police got there, that’s when it started hurting, like I noticed I ha d a real badscar on my e

ye, rea l bad. I don ’t know how it got the re, I just know my e

ye was like a

cherry . And my

throat wa s hurtin g r eal bad. I ha

d like scratch marks on m y neck, thing s like that . My ribs wer e hu rti ng, bec aus e I h urt my ri bs before play ing football. I hit the sam

e rib tha t I ha d hurt whe

n I hit the bicy cles.

The victim’s twelve-yea

r-ol d half br other, J.N., testified that he had been removed from his home with h

is moth er and the de fendant and was living at the Tennessee B aptist Children’s Homeat the time

of trial. He acknowledg ed that the defendant had w hipped him

and the vi ctim witha belt andwith an e xtension cord which was wrapped around itself. He said that the defendant made the m e mp ty t heir pockets before the whippings to make sure they did not have any padding, and made them bend over and stretc h out their hands. He said that the defendant hadwhipped him “hard” with the extension cord “like may be three times,” but that he “got smart” and “learned [his] lesson.” When asked about the victim, J.N. said h e did not think that G.S. had learned his lesson “because he re peatedly g ot it.”− 4

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J.N. further testified that the whippings hurt “pretty bad” for a few da ys. However, in a prior statement given to a detect ive at the R ed Ba nkPolice Department, J.N. had said that “after being punished in this manner, the bruises and whelps [sic] lasted a bout thre e weeks” and that he “could not sit witho

ut a cushi on of some

sort fo r about four day s.” J.N. said that he did not consider these whippings to be beatings and that he believed he deserved the whippings the defendant had giv en him. J.N. a

lso testif ied that th

e victim ha

d “a prob lem telli n g the tr uth sometimes .” When asked to explain, J.N. said the victim had

tried to change

his gra des on his report card on ce “beca use he knew h e was goi ng to b e in tr oubl e for t he gr ade s” and that the victim “was alway s lying about something . . . .”

J.N. identified the exten sion cord admitted into evide

nce and said that i

t looked exa

ctly
as he remembered it and that he had never seen any thing added to it. The prosecutor the n aske d J.N. to recite from a prior statement, where he ha d said that the “ex tension cord wa s usually wrapped with t hree pieces of c oat hang er, one on each e nd and one

in the middl e” and th at t h e “pieces of coat hanger

was [sic] then wrapped with duct tape.”

J.N. was at ho me on the n ight of A pril 9 , 1998, but he did not see the incident between the victim and

the defe ndant, al though h e heard them scuf

fling. J.N . said tha

t he went in

to the victim’s room to get a knife from the victim and that he “ guess[e d]” the victim had inte nded to kill the defendant with it.

Officer Kim C ofer of the Red Bank Police Department testified that she responded to a runaway call from the victim’s mother, Mrs. Toliver, on Saturda y, April 4, 1998. Mrs. Toliver told Officer Cofer that G.S. had run aw ay before and that s he thoug

ht he wasat his grandmother’s house. Mrs. Toliver called Officer Cofe r the following Tuesday , April 7, 1998, andtold her she had obtained an attachmen t through juvenile court fo r the vic tim as an un

ruly
runaw ay. Officer Cof

er 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 becaus e “he
w as 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 g rades in school.

Officer Cofer fu rther te stif

ied regarding the statements that the victim g ave to police on April10, 1998. G.S. said that he had been beaten with a “braided c ord,” thr own aga inst a wall, andpunched with the defendant’s fist. She said that the victim had bruising on his right e ye and marks on hi s n ec k. Co fe r i de nt if ie d t hr ee ph ot og ra ph s s ho wi ng in ju ri es to th e v ic ti m’ s r ig ht eye and cheek area, throat, and neck area.

Officer Jonathan Chambers, who had been with the Red B ank Poli ce Department at the time of the investigation, testified that on April 9, 1998, he responde d to a dome stic viole nce call andspoke with the victim at a neighbor’s ap a rtment. The victim was cry ing and very

upset and said that his stepdad beat him. O ff icer Chambers described his right ey e as very swollen and bleeding and said that G.S. had three claw mar ks on his neck.− 5

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Officer Chambers also went to the Tolivers’ a partment, where he spoke with the defendant and Mrs. Toliver. Both the defendant and Mrs. T oliv er knew why he was there and
were able to ca lm ly s peak to him about what had happened, although the def endant appeared “kind of upset.” The defendant told Officer Chambe rs that he was gone a l ot on wo rk-related travel, that G.S. had run away and had some problems with his grades while he was g one, and that he had told G.S. to expect “a whippi ng” w hen the defendant arrived home. When the defendant arrived home hetold G.S. to get r eady for his wh

ipping. Wh

en G.S. em

ptied his pockets he had a knife in his hand. The defendant took the k nife and then hit G.S. once with the extension cord and then the victim turned around and refused to be nd over, at which p oin t the defenda nt said he grabb ed G.S. by

the throa t and pushed him aga

inst the wa

ll.

Officer Timothy Thompson, of the Red

Bank Poli ce Depa

rtment, a lso resp onded to the domestic violence call on April 9. He stay ed with the victim

while other officers spoke with the Tolivers

. Officer Thompson later spoke with Mrs. Toliver, havin g retur ned to the

Tolivers ’ apartment at the request of a detective to retrieve the elect rical cord . Officer Thompson related his conve rsation w ith Mrs. To liver as f ollows:

She stat ed thatthe disciplinary actions took place upon the outcome of their r eport ca rds: If t hey g ot goods [sic] grades, there
was no pr ob le m; if

th ey h ad a b ad re po rt ca rd , t he y were punished. The action ta

ken was punishment

with an extension cord that was entwinedand then it was tied on bot h ends and in the midd

le with
a piece of coathanger and duct tape wra pped around each strands [sic] of the coat hanger. At which time, as the d isciplini ng began, the vic tims were advised to bend over, at which time they were struck in the buttocks with this extension cord.

Detective Serge ant Jim Ky le of the Red Ban

k Police D epartme

nt spoke w ith the defendant in the booking room of the police station on April 9, 1998. T he defendant, who Detective Kyle descr

ibed as “very c alm, considering he had been arr ested,” said that he had been disciplining the victim

with an exte

nsion cor d when the

victim got injured. Regarding the
manner of discipline the defendant told Detective Ky le, “I have the m b end over and stretch there [s ic] arms out and tighten up their muscles and then I strike them in the buttocks ar ea.” Th e defendant also told Detective Ky le, “That’s legal, I

have a right to do that.”

Th e fo llowing day , April 10, 1998, Det ective K yle request ed the victim and his grand mother to come to the police station to give statements. Photographs were ta ken of the victim’s injuries as well. Detective Kyl e 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 a lso attende d the
samechurch as the Tolivers. He said that the defenda nt had a “good” reputation. Davis further− 6

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testified that the victim came t o his apar tment, “sc

ratche d up and so mewhat ou t of brea th, pretty emotional,” on April 9, 1998. The victim ask

ed to use h

is telephone and c alle d the police. He said that the victim had a “gash” i n his h ead and a “scratch on his neck [that] looked like a fingernail . . . had struck him.”

WandaDavis, the wife of Mark Davis, testified that when the victim ca me to their ap artment, he was “very

distraught, cry

ing, 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 th e defen dant d id no t ge t 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 testifi ed that she marr ied the de

fendant in June of 19 95, when t he victim
was t hi rt ee n ye ars old. She described the victim as “very smart,” “very

capable,” and “very talented.” She said that the victim had acted “indifferent” toward the de fendant after the i r marri age and that the victim had never told her about his feelings towar d the defen dant. Mrs

. Toliver said that u

pon their marriage she and

the defe ndant had agreed th at the de fendant would be the parent responsible for admin istering discipline

to her ch

ildren. D uring th

e whippin gs, which she said occurred every four or five months, the defe ndant w ould hit the victim, “t

wo to three times on the butt.”

Mrs. Toliver testified that she had two previous interactions with juve ni le court regarding the victim, the first being in 1996 when the victim stole a shirt from Sears, and the sec ond being when he ran a

way on April 3, 1998. Reg arding the runa way incid ent, Mrs. Tolive r 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 A pril 1, 1998, she went to the victim’s school and obtained a copy of his report card and then groun ded the victim and removed him from the school’s track team of which he w as a memb er. On F riday , April 3, 1 998, the victim did not come hom e from sc hool,
so she filed a missing pers on’s rep ort the next day with the Red Bank Police D epartment. The follo wing Mond ay, April 6, 1998, Mrs. Toliver w ent to the juvenile court and filed a runaway attachment

on the victim. She said that the victim was taken into c ustody on Tu esday, Apr il 7, 1998, and sh e pick ed him up fro m the j uveni le det entio n facil ity later that s ame eve ning.

Mrs. Toliver said that on the evening of Apr i l 9, 1998, the defendant went into the victim’s room to discipline him. She said th at she “kind of stood in the doorway,” of the victim’s room, and the defen dant handed her a knife he had taken f rom the victim. She gave the knife to J.N. and to ld him to put it in the kitc hen. The defenda nt ask ed th e victim to bend over a barrel , which she described as a “big plastic tub . . . maybe 10 or 20-g allon tub,” and then hit the victim with the e

xtension co

rd. 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 the n 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 defend ant− 7

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again. The two began “tussling” again, and M rs. Toliver said she screamed at them to stop fighti ng. Mrs. Toliver testified that the defendant then backed off and w alked out

of the ro om. The victim was breathing “k ind of hard” andran out of the room a

nd went to

the Davis es’ 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 g esture toward the def endant. Mrs. Toliver did not know how the victim got hurt, but speculated that he could hav e hit his head on some of the furniture in the room.

Mrs. Toliver a

cknowle dged a sking po li ce when they arrive d to arre st the def endant, “Why are you ta

king Anderson in, why

not take b oth of them in, they were both fighting.” She also acknowled ged telling the police officer w ho later came to her apartment to retrieve the extension cord that it normally had “ coat hanger wire wra pped ar ound 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 chara cter witness for Mrs. Toliver, said that he had attended the same church as Mrs. Toliver prior to her marr iage to the defendant. He h ad als o so ld a car to the Tolivers. Russell said that he felt like he knew the defe ndant “very

well,” tha t the defendant’s reputation in the com mu ni ty w as “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 Hu ghley

testifie d that the

defenda nt had a g ood general ch aracte r reputa tion in th e co mm un it y, that his reputation f or tell ing the t

ruth was g ood, and t

hat she w ould belie

ve his testimony under oath.

Also testifying on be

half of the defendant was Dougla s Daug herty, p resident of Chatt anooga Resourc e Founda tio n, who sai d that he first met the defendant in 1993, when the defendant was selected to participate in a leadership deve lopment program through the Foundation. Daugherty

stated that he knew the defendant “fairly wel l,” 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 c hurch wi th the Tolivers for
seven years. He said that the defendant’s reputation was “good” and that he had neve r seen the defendant beat the victim. Aqua P eoples, a teacher at Ringgold Middle School, testified that she had known a nd attendedchurch with the Tolivers. She said that the defendant’s reputation wa s “very g ood” and that she would

believe him under

oath in a court o f law. She

knew tha t the def endant be lieved in disciplining the children, but he had not told her how he went about doing so.− 8

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TomWeathers, a teacher and football coac h at Red Bank High School, testified that the victim wa s a membe

r of the f ootball te am during

the 1997 se ason. He

related three in fractio n s involving the victi m at scho ol and said that the victim was not truthful when questioned about the first incid ent. A fter t he thi rd inc ident , duri ng which the vic tim had spoken to Weathers “in a distasteful way” a

nd Weat hers t old the victim to get his attitude “straight,” the victim stopped play ing foot ball. Wea

thers sa id he had no problem s with the v ictim afte r that.

The defendant testified that, at the time of the trial, he was fifty-one

years old a

nd had children from a pr

evious ma

rriag e. He wa s self-e

mplo ye d as a

photographer, the owner of a vend ing machine

business, and the se

ller of he alth prod

ucts. As th

e result o f these o ccupati ons, he traveled a great dea

l, always by

automob ile. He met the victim’s mother in 1993, at a gospel record store, a nd they were ma rried tw o ye ars l ater. After their marriage, he moved into the apartment with Mrs. Toliver and her sons. Because of a c hange in job s, he beg an trave ling in 1997, appare

ntly when he a

nd his wi fe beg an their

business. From the

time of the

ir marri age to his last contact with the victim, just after the Ap ril 9 incident, the defendant said he had “whipped” the victim

“about twice.” A

more com

m on puni shment, a

ccording to the d

efenda nt, was to “ground” the victim to his room. Although it was possible that he had wh

ipped the victim during the six months prior to April 9, the las t time t hat he recalled doing so was in 1996, when the victim stol e a shirtfrom Sears. The defendant denied whipping the victim on March 1 and said that he ha

d been in Mississippi o n businesson that date. The defendant said that during the prior three y ears, he had whipped the victim’s brother, J.N., “probably twice.”

As forthe April 9 incident, the defendant explained that he had been out of town tha t week and had asked his wife if t he victim had brought home his report card. L earning that he hadnot, the defendant and his wife discusse d that she

should g o to the victim’s scho ol to get it. He said that he arrived back in Chattanooga the morning of April 9 and, after atten di ng to some business, arrived home at about 4:30 p.m. Both of his step sons were home, and, after he had pickedup his wife at work, they arrived back at the apartment at about 6:00 p .m. He sa id th at,
w hen he and his wi fe discu ssed in the early evening what to do , he was t

ired and did not wa

nt to deal with the vi ctim. Afte r some ad

ditional di scussion, he told hiswife that he had “promised [G.S.] that i f he di dn’t b ring th ose gr ades up o n th e last re port car d, we’r e going to deal wi

th that.” He said that, in view of the unsatisfactory repo rt card , as well as a fake report card the victim had giv en them, “I’m l eft with n o choice , I ha ve to car ry it out. And t

hat’s exa ctly what I did.”

The defenda

nt said tha

t he walked into the victim’s ro om and asked him to empty

his pockets. The victim then pulled a “small, straight [kitchen] knife” from his pocket, a nd said, “i n a very ang ry tone,” a

nd with a frown on his face, that he wa s going to kill the defe

ndant with

it. The victim did not resist, however, a s the defendant took the knife from his hand. The defenda nt then went to ano the r room, g ot the bra ided cor d, and re

turned to the victim ’s bedro om, ins truct ing him to “bend over.” The defendant struck the victim once with the cord, “moderate,− 9

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nothing hard,” but did not believe that the blow “stung” beca use the defendant “didn ’t r eally apply a lot of pre ssure.”

The victim then stood up and grabbed the defen da nt by the colla r, someth ing the v ictim hadnever done before. The defe ndant reacted by

grabbing the

victim by

th e collar and pushing him against the bed, against the wall, and the n pulling him to the floor “to subdu e him. ” The victim complied as the defendant told him to bend over again. The defendant asked Mr s. 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, ap proachi ng the defendant in a “fighting sta nce.” T

he defe ndant fir st asked, “Do you want to fight me . . .?” After

his wif e calledhis name, however , he instr ucted 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 hi s fin gernails caused the “claw marks” on the victim’s neck. He speculated that the inj uries to the victim’s face might have occurred when, during the struggle, the victim hit the dresser.

D uring c ross-examination, when asked about previously whipping the victim, the de fendant testified that he had once whipped him with a belt. He denied that he had brai ded th e exten sion cord, saying

that “[t]he cord was already there, it’s not one I boug ht.” He said that

h e hadused “maybe

twice” the braided co rd with on ly o ne coat h anger wrappe d around

it, and held in place w ith duct ta

pe, not t hree coat hangers. B oth of these incidents preceded that of April 9, as did his u se of a be

lt to whip the victim.

Based upon this evidence, the jury found the defendant guilty of bo th counts of aggravated

child abuse, and the tri al cour t later imposed a nine-y ear sentence for eac h conviction and ordered that these sentences be served concurrently . The Court of Criminal Appeal s affirmed the trial court’sjudgmen

t. We gra

nted the d

efenda nt’s application f

or permis sion to appeal.

II. Sufficiency of the Evidence The defenda

nt initially

contendsthat the e

vidence is insuff icient to support the jury’s verdict

. The prop er in qu ir y for an appellate court reviewing a challenge to the sufficiency of the evidence is whethe

r, consid ering t he evide nce in a l i ght most favorable to the prosecution, any rational trier of

fact could have f

ound the e ssential e

lements of

the crime

bey ond a rea sonable doubt. See Jackson v. V irginia , 443 U .S. 30 7, 99 S. Ct. 27 81, 61 L . Ed.2d 560 (1979); State v. Hall , 8 S.W.3d 593, 599 (Tenn. 1999). T he prose cutio n is entitled to the str ongest l egitima

te view of the evidenc e in th e record, as well as all reasonable and legitimate inferences which may be drawn therefrom. State v. Bland , 9 58 S. W. 2d 65 1, 65 9 ( Te nn . 1 99 7) . " A g ui lt y verdict b y the jury, approve d by the trial court, a ccredits the testimony of the witnesses for the State and resolves all confli cts in favor o f the prosecut ion's theory." Id. Questionsabout the credibility of witnesse s, the weight and va lue of the evi dence, as well as all factual issues raised by the− 10

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evidence are resolved by the trier of fact, and this Court does not re-weigh or re-eva luate the evidence. Id. Nor may this Court substitute its inferences dra wn from circum stant ial evidence for those drawn by the

trier of fact. See State v. Carruthers , 35 S.W.3d 516, 557-58 (Tenn. 2000); Liak

as v. State , 286 S.W.2d 856, 859 (Tenn. 1956).

With these pr

incip les in mind we m

ust deter mine whet

her the e vidence in this rec ord is sufficient to support

t he jury’s verdict. We begin with the definition of the conviction offense. The offense of child abuse i s co mmitted when a person “knowingly , other than by ac cidental means, treats a child under eighteen (18) y ears of age in such a manner as to inflict injury.” Tenn. Code Ann. § 39-15-401 (1997 & Supp. 2002). The offense of a ggravated ch

ild abuse is committed when (1) the act of child abuse r esul ts in “serious bodily injury ” to the child or

(2) the act of child a

buse is ac complishe d wit h a “dea dly weapon.” Tenn. Code Ann. § 39-13-402(a) (1997). A

“deadly weapon” is define d as:
(A) A firearm or any

thing manifestly de signed, made or adapted for the purpos e of infl icting death or serious bodily injury ; or (B) Anything that in the manner of its use or intended use is cap a ble of causing death or serious bodily injury

. Tenn. Cod e Ann. § 39-11-106(5) (1997) (emphasis added). “ Serious bodily injury” is defined as inju ry involv ing:

(A) A substantial risk of death; (B) protracted unco nsci ousness; (C) extreme ph ysi cal pain ; (D) pro tr acted or obviou s disfigu rement; or (E) protrac ted lo ss or substantial impairment of a fu nc ti on of

a b od il y me mb er , o rg an or me nt al fa cu lt y. Tenn. Code Ann. § 39-11-106(34) (1997) (emphasis added)

. As to the March 1 incident, the defendant was char ged with and convicted of agg ravated chi ld abuse by use of

a deadly w eapon. The victim testified that the defendant struck him on th e buttocks with a heavy- duty extension cord wrapped with coat hang e rs and duct tape. Th e victim stated that the extension cord wa s br aided several tim es to incr ease its t hickness . The vic tim testifie d that the beating initially fe lt like “real pain,” and that the pain then increas ed. Th e victim further expl ained tha t the pain “hurt re al bad” a

fter a p eriod of

numbness. Viewing

this evidence in the lig

ht most fav orable t

o the pros ecutio n, as we are required to do, we conclude that the evidence is sufficient to support this conviction.

The defendant also was charged with and convict ed of aggravated child abuse

by use of a deadly wea pon as a r

esult of th

e April 9 incident. The victim testifie d that the defenda nt st ruc k him twice with the braided extension cord, wrapped the cord ar ou nd his neck, then began slinging him around the room, causing the victim to stri ke objec ts and furniture in the room and− 11

−

to sustain injuries to his ribs, neck, and face. Several witnesses corr oborated the victim’s testimonyregar

ding inju ries to hisface a

nd neck, and the pr

ose cution intro duced photographs of these injuries a

t trial. Ag ain consi d ering the pr oof in the light most favorable to the State, the evidence is suffic ient to support the jury’s ver dict 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 t o a jud gm ent of acquittal as a matter of law, we next consider whether the trial court er red in permitt

ing the p rosecut ion to cons olidate the indic tments for

trial.

The prosecu

tion obtain

ed separ ateindictment s for the incidents that occurred on March 1 andApril 9, 1998. On the morning of trial, the State moved to dismiss several agg ravated assault charg es aga

inst the de

fendant . When the m

otion was g

ranted, defense

counse l asked the trial court “to proceed on the April 9 inc ident . . . and n ot the March 1 incident” because they
were “two sep arate o ffense s that [wer e] six weeksapart . . . .” The St ate then orally moved to consolida te the charges, stating that the par ties had been “under the understand ing thatwe were try ing these ca ses t ogether . . . and at no time was it ever broug ht up that they would be tried separately .” The State

argue d that c onsolidation was appropriate based on the existence of a
common scheme o

r plan be cause “ in both of t hese ca ses the a

llegat io ns will be t hat the defendant hit the ch

il d with the s a me braided extension cord . . . .” The defendant arg ued that althoug h each incident involved corporal punishment, the incidents were not so unusua l o r peculiar as to reveal a distinctive design.

The trial cou

rt agr eed with t

he prosecution, ho wever, stating that t he Ma rch 1 and April 9, 1998. inciden ts 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 offen se. The tri al court t herefore gran ted the State’s oral motion to consolidate. In the Court of Criminal Appeals, the defendant challenged

t he trial court’s decision to consolidate the offenses. Howeve r, the Court of Criminal Appeals did not address the issue on the merits, finding that it had been waived.

Ini ti al ly, we disagree

wit h the Court of Criminal Appeals’s conclusion that the defendant failedto preserve the issue for appeal. Alt hough the prosecution stated that the parties had an informal understand ing tha t the indictments would be tried together, the simple fact is that the record does not r

eflect t h at the pr osecution made a written or oral motion for consolidation prior to trial or that the parties had entered into an ag reed order of consolidation p rio r to the first day of trial. See Spic e r 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 whe n t he jury is waiting in the hall”). Be cause of the prosecu tion’s tar diness in mo ving to c onsolidat e the indi ctments, the St at e m us t s ha re re sp on si bi li ty with the de fendant for the absence of a c lear 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 immedia

tely mo ve for a
severance in order to p r eserve

a sever ance iss ue for a

ppeal. Becau se the trial

court in th

is situatio n is to cons ider whe th e r con solidation is proper in light of Rule 14(b)(1), a rule t ha t requires a defendant to fo rmally move for a sever ance immediately after the objection to con solidation is o verrule d makes lit tle practical sense. Fu rther, s uch a rul e would e mphasize technical

ity of procedure over substantive fairness, w ould a dd unjustif iable expense and delay to the pr

oce ed ings, and would defeat the very purposes to be served by

the Rules of Criminal Procedure.

Id. at 444. Therefore, wedisagree with the Court of Criminal Appeals’s conclusion that waiver applies to this issue. Having

so conclu ded, we will addre ss this issue on the mer

its.

Consolidation o f multiple offenses against a single de fendant in a single trial is governed by Rules 8, 13, and 14 of the Tennes see Rulesof Crimina l Procedu re. As re levant to this appe al, Rule 8(b) of the Tennessee R ul es of Criminal Procedure provides that “[t]wo or more offenses may be join ed in the same indictment, presentment, or information, with each offense stated in a separa te count or consolidated pursuant to Rule 13 if the offenses con stitute parts of a common
s cheme or plan or if they are of the same or similar character .” Tenn. R . Crim. P. 8(b ) (emphas is added). Rule 13 all ows the tr ial cou rt, at its option, to consolidate or sever offenses for trial in th ose insta

nces whe re eithe r the pro secution

or th e defense

could hav e elect

ed to consolidate or sever. See Tenn. R. Cr im. P. 13, Ad

visory Commission Cm

ts. Rule 13 p

rovides:
(a) Consolidat

ion. The c ourt m ayorder consolidation of two or
more indictments, p resen tments, or informations for trial if the offenses and all defendants could have bee n joined in

a single indictment, presentment, or information pursuant to Rule 8. (b) Severance. The court may order a severance of

offenses or defenda nts before trial if a severance could b e obtained on motion of a defendant or of the state pursuant to Rule 14.

Tenn. R. Crim. P. 13 . Finally , Rule 14 in structs t hat wher e “tw o or more offenses have been joined or consol

i dated f or 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
ev idenc e of one woul

d be admissible upon

the trial of

the other

s. ” Tenn. R. Crim. P. 14(b)(1) (emphas is added). Under this provision, the defendant has an absolute rig ht to hav e offen se s separa tely tried unless the prosecution show s that th e offenses are part of a c ommon scheme or plan and evidence of each crime would be a dmissible in the trial of t he others. Spicer , 12 S.W.3d at 443.− 13

−

We have considered the interaction and function of Rules 8, 13, and 14 of t he Te nnessee Rules of Criminal Procedure in a s eries of recent cases. See Spicer v. State , 12 S.W.3d 438 (Tenn. 2000); Statev. Moore , 6 S.W.3d 235 (Tenn. 1 999); State v. Shirley , 6 S.W.3d 243 (Tenn. 1999). Moore and Shirley involved multi-count indictments, with the defe ndant in each ca se requesting that certain counts be severed and tried s eparately

. Spi cer is most simila

r to this ca se because it involved the consolidation of two separate indictments fo r a single trial. The following excerpt f rom Spicer

is instructive:

In the vast ma

jority of permi ssive joinder and severance
cas es, t he offenses sought to be joined have been c onsolidated by the state in the original indictment or information pursuant to Rule 8(b). I n the usual ca se, ther efore, the burde

n is on the d

efenda nt to move for a severance of those offense s and to satisfy the cr iteria of Rule 14( b) (1) before separate trials will be g ranted. Unless the defendant moves to sever the off enses prior to trial or at an otherwis e appropriate time, the defendant waives the r i ght to seek separa te trials of multiple offenses. See Tenn. R. Cr im. P. 12(b)(5); 14(a).

L ess freque

ntly , howeve

r, the sta te may seek to c onsolid at e offenses contained in multiple indictments upon motion pursuant to Rule of Crimina l Procedur e 13(a). When a def endant ob jects to t h e consolidation motion, the state must then demonstrate that the offenses are parts of a common scheme or plan and tha t evidence of each offense is admissible in the trial of the others

. Spicer 12 S.W.3d at

443-44 (e

mphasis a

dded). T hus con solidation is proper only if the trial court co ncludes t

hat
(1) the multiple off

ense s constitute parts of a common scheme or plan; (2) evidence of each offe nse is relevant to s ome mate rial issue in the trial of all the o ther o ffenses; 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 o n the defendant.

Id. at 445 (c it ations omitted). When a defendant objects to a motion to consolidate, the prosecution bears the burden of producing evide nce to establ ish that consolidation is proper. Id. at 447.

I n deciding whether consolidation was proper in this case , we first mus t determi n e whether the prosecution of

fered e vidence to establi sh th at the off enses constitute parts of a4 As the Court of Criminal Appeals noted, t he proceedings on the consolidation iss ue were shortened by the fact that the matt er was not raised until the first mo rning o f the trial. Ou r analysis in su ch circ umsta nces n ecess arily requir es review of the ev idenc e at trial.

5 Indeed, as the defense points out , the prosecuti on offered no evidence to establis h the second or third categ ory.

− 14

− common scheme or plan. 4 “[T]here are three ty pes of common s cheme 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

crimin al transaction .” Shirley , 6 S.W.3d at 248 (citing Neil P. Cohen et al., Tenne ssee Law of Evidence § 404.11, at 180 (3d ed. 1995)). Although neither the prosec ution
nor the trial court clear

ly indi cated which category applied in this case, the statements made at the hearing sugge st that both relied upon t he di st in ct iv e d es ig n o r “ si gn at ur e” cr im es ca te go ry. 5 To reite rate, wh en ruling on the motion to consol

idate the trial cou rt stated as follow s:
Since the crime s . . . are identical in every feature, the same place, the same roo m, the same method of

administe

r ing this type of in ju ry, the same weapon, or the same object . . ., the y’ re so identical to each o ther, g oing to th at issue o f intent, I ’m going to allow the State to pr

oceed o n both of th

ese indictments.

We are con strained

to disa gree wi th the trial court’s conclusion. Although offenses may be similar in many respects, “they cannot be classified as signa

ture c rimes if they lack a distinct modus operandi.” Shirley , 6 S.W.3d at 248. The “modus operandi” must be “so un i que and dis tincti ve as to be like a signature.” Moore , 6 S.W.3d at 240. Although the offenses need not be identic al in every r

espect, the method

employed in committing the off enses must have “‘such unusual particularities that reasonable men can conc lude that it would not likely be employ ed by different persons.’” Shirley , 6 S. W.3d at 248 (quot ing Harris v. Stat e , 227 S.W.2d 8, 11 (Tenn. 1950)). Indeed, the term “modus oper andi” has been defined as “‘[m]ethod of operating or do ing t hings (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 (quo ti ng Black’s Law Dictionary

1004 (6th ed. 1990)) (emphasis added).

While the Ma

rch 1 and the April 9 incidents share a number of similarities, the method employed in committing the of

fenses d oes n ot constitute a modus operandi so unique and distin ctive as to be comparable to a signature. Ac cording to the evidence offer ed by the pros ecution, the defendant and the victim were alone in the victim’s bedroom dur ing the March 1 incident. The defen dant s truck the victim on the buttocks with a heavy -duty extension cord that was bra ided with wire and w

rapped with duct ta

pe. The incident d

evelope d from t

he vic tim receiving poor grades on his report card. T he April 9 incident developed from the victim failing to bring home his report card, re ceivi ng p oor grades on his report card, a nd running away

from homeafter his mother obtained a copy of his report ca

rd from his school. While the defendant andthe victim were again in the victim’s bedroom, on this occas ion the vi ctim’s mother was− 15

−

standing in the doorway of the room. While the defendant again used a bra ided exten s ion cord to strike the victim on the buttocks, the extension cord w as neither bra ided 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 “bar rel” or a “big plastic tub,” a fa ct different from the March 1 incident. Furthermore, the prosecution i ntroduced proof to s how that d uring th e April 9 incident the defendant wrapped the extension cord around the victim’s nec k and jerked hi m aroundthe room, causing the victim

to strike o

bjects a nd furnit ure in the room, tosustain

injuries to his abdomen, neck, and face, and to l ose consc iousn ess. In short, the evidence r elating to the method employ

ed to comm

it the Apr il 9 offen se is ma

r kedly differe nt from the

proof re lating to the method employed to commit the March 1 inc ident. See Shir ley , 6 S.W.3d at 249 (“B ecause of the differences in the commissions of the robberies, we a re unable to say

that a distinct or unique modus operandi was used.”). He re, as in Spicer , Shirley , and Moore , the trial court erred in concluding that the multiple offenses constitute parts of a common scheme or plan.

Furthe rmore, evidenc e of eac h offens e was not

releva nt to prove

a “mate rial issue in th e trial” of the other offense as is required by the second prong of Rule 14(b)(1 ). The gen eral rule is that evid

ence of prior cr imes, wro ngs or a

cts is not a

dmissib le to esta

blish a defendant’s propensi ty or character, y

et such evidenc e may

be “admi ssible for

other pur

poses.” 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 defendan t, the absence of mistake or accident if tha t is a defense, and rarely , the existence of a larger continuing pla n, scheme, or co ns pi ra cy 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 Stat

e had sho wn that the crimes were parts of a common scheme or plan, consolidation would have been proper only if the evidence of each offe nse was relev ant to prove a materia l issue in th

e trial of the other

offense . This C ou rt has emp hasized th at “iden

tity is usually the only releva nt i ss ue supporting admission of other offenses when the theory of the
common scheme or plan is grounded upon a signa ture cri me.” Moore , 6 S .W.3d at 239. In the present case, id entity was clea rly not at issue . There

is no quest

ion that the

vic t im identified the defendant a s hi s abuser, and the defendant never a rgued that the offenses were committed by
someone else. See id. In a ddition, in

tent was not a mater

ial issue. Thus, t he trial c ourt err ed 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), tha t child abuse is a “nature -of-co nduct” offense. As such, the prosecution need not prove that the defendant “intended” to cause

injury to the chi ld. Furth

ermore , the tria

l court in t

his case didnot e xp lain how the evide

nce of e ach off

ense wa s r elevantto prove intent as to the other offense. I ndeed, the de fendant in this case was charged with aggravated child abuse by use of a de ad ly weapon

. To obtain a conviction on this charge, the p rosecution nee ded only to prove that the de fendant kno wingly

tre ated the victim in a manner that caused injury and that the act causing injury was accomplishedwith a dea dly weapon, which is “ [a] nything desig ned, made or adapted for the− 16

−

purpose of inflicting death or s eriou s bodily injury” or some

thing “t hat in the manner o f its use
or intended u se is capable of causing death or ser ious bodily injury .” Intent simply was not re levant given the charges in this case , and we are unable to discern another issue to which th e evidence of each offense

was relevant and admissible.

In sum, the Ma

rch 1 and April 9 of

fenses d id not constitute parts of a common scheme or plan, and the e

vidence of each offense was not rele vant to any materia l issue in the trial of the other of fense. T herefo re, we hold that the

trial cou rt erre d in consol

idating the indic tments.

IV. Harm

less Erro r Analysis Having determined that the trial court abused i t s discretion in consolidating the indictmen ts over the

defenda nt’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. W e have previously r ecognized that “‘the line between har mless and prejudicial e rror is in direct proportion to the degree . . . by which proof exceeds the standard required t o convict . . . .’” Spicer , 12 S .W.3 d at 44 7-48 ( quot ing Delk v. Sta te , 590 S.W.2d 4 35 , 442 (Tenn. 1 979)); see also Sh irley , 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 beyon d a reas onable do ubt, the less likely it becomes that an er ror affirmatively

aff ected th e outcome

of the tri al on its merits.” Gilliland , 22 S.W.3d at 274.

Alth ough the evide

nce supp orting t

he convictions is legall y sufficien

t, it is har

dly overwh elmi ng. Indeed, the Marc h 1 conviction was based solely upo n the testi m ony of the victim. The victim was subjected to vigorous cross-examination as to his tr

uthfulness, and the defense offered two witne sses, inc luding th e victim’ s brother , who prov id ed exampl es of the victim being untruthful in the past. Furthermore, the defe ndant presented an alibi , te stifying that he had been out of town in Mississippi on March 1, 1998.

Ad di ti on al ly, the proof as to the Apri l 9 i ncident was disputed. While all witnesses test ified that the defendant struck the victim with the braided extension cord, the def endant an d Mrs. Toliver t

estified that the d

efenda nt did not pl ace the

exte nsion cord around the victim’s neck or jer k the victim around the room. Finally , the defense offered sever al witnesses who described the defendant’s genera

l character and reputation for tru thfuln ess as “excellent” or “good.”

Also relevant to the harmless error analy sis in this case is the fact that the jury he ard evidence of each offense even thoug h t his evidenc e was wholly irre levant. Moreover, this error
was exacerbated by

the erroneou s admission of additional irre

levant evidence

of uncha rged a cts of abuse inv olving th

e victim a

nd the vic tim ’s brother. The prosecution made extensive use of thi s i nadmissible evidence, both in opening statements and in closing arg ument. When evidence of other crimes, wrongs, or acts is offered, “a real pr obability exists . . . that the jury could be− 17

−

tempted to convic t based upo n a defendant’s propensity to commit crimes rather than convict solely upon evidence relating to the charged offense.” Spicer , 12 S.W.3d at 44 8; see also State
v. James , 81 S .W.3 d 751, 758 (T enn. 2 002) ( noti ng t hat “the admission of other-acts evidence poses a substantial risk that a trier of fact may convict the accused for crimes other than thos e charged”). That prob abil ity i s e specially g reat in this case where a gr eat deal of the evidence presented should have been excluded. Theref ore, after reviewing the rec ord we conclude that the
erroneous consolidation of the indictments combined with the erroneous admission of additional evidence o f other uncharged acts of abuse involving the victim and the victim’s brother affirma tively appear to have affected the verdict of the jury . Accordingly , new trials are required to ensure that these verdict s 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 rev iewing the record and applicable authority, we hold that the evide nce was sufficient to support the jury’s verdicts, that the trial co urt abused i ts discretion in consolidating the indictments, and that this error, in conjunction with the errone ous a dmission of evidence of other uncharged crime s, wrong s or actsof abuse , affirm ati vely appea r to have affected the jury ’s verdict

. Accordingly , the judgments of the trial court and Court of C riminal Ap peals are reversed. These cases are remande d for new trials at which evidence of other c rimes, wrongs, or acts committed

by t he defe ndant a gainst the victim

or other s shall not b e admitte d unless relevant to a material issue at trial. The costs of appeal are taxed to the State of Tenne ssee, for wh ic h e xe cu ti on sh al l i ss ue if ne ce ss ar y.

____________________________________

FRA NK F . DR OW OTA , III, CHIE F JUSTICE