IN THE SUPREME COURT OF TENNESSEE AT JACKSON

DONALD P. SPICER, ) FOR PUBLICA TION ) Appellant, ) FILED: February 7, 2000 ) v. ) SHELBY CRIMINAL ) STATE OF TENNESSEE, ) HON. ARTHU R T. BENNETT ) JUDGE Appellee. ) ) No. W1996-00042-SC-R11-CD
For the Appellant: For the Appellee: Marvin E. Ballin Michael E. Moore Memphis, Tennessee Solicitor General Mark A. Mesler Michael W. Catalano Memphis, Tennessee Associate Solicitor Gener al Nashville, Tennessee



### OPINI ON

AFFIRMED IN PART AS MODIFIED; REVERSED IN PART; and REMANDED TO TRIAL COURT BARKER, J.



# FILED

February 7, 2000 Cecil Crowson, Jr. Appellate Cou rt Clerk1 It is the pol icy of this Court not to i dentify

minor child ren involved in sexual abuse cases by name. Instead, we willidenti fy the minor victi ms in this case onl y by t heir i niti als. 2 In this appeal, we address several issues rel ated to the consolidation and severance of multiple sex ual abuse offenses pursuant to Tennessee Rul es of Criminal Procedure 8, 13, and 14. More specifically, these is sues are: (1) whether the appellant properly pres erved his right to a severance of offenses under Rule 14(b)(1) by objecting to a pre-trial motion for consolidation; if so, (2) whether the trial court abused its discretion by improperly consolidating two indictments al leging child rape and aggravated sexu al battery in a sing le trial; and if so, (3) whether that abuse of discretion affirmatively

appears to have affected the outcome of the tr ial. For the reasons stated herein, w e hold that the appellant properl y preserved his r

ight to a severance of offenses and that the tri al court abused its discr etion by consolidating both indictments in a singl e trial. Because we al so hold that the trial cour t’s abuse of discretion affirmatively

appears to have affected the outcome of the tr ial, we vacate the appellant’s convicti on and sentence and remand this case to the Shelby County Criminal Court for a new trial. The judgment of the Court of Criminal Appea ls is affirmed in part as modified and reve rsed in part.

BACKGROUND

In February of 1992, the appell ant, Donald Spicer, marri ed Debra Stone, who had two daughters, L.S. and A.S., 1 from a previous marriag e. At the time of the events giving rise to this case, L.S. and A.S. were ten and twel ve years old, respectiv ely. On Ma rch 4, 1994, Stone and L.S.went to a l ocal store t o buy some cleaning supplies for thei r home. While they were out, L.S. tol d her mother that they needed to talk when they returned home, but after Ston e insisted that they talk immediately, L.S. told her that “[m]y dad has been messing with me.” L.S. also said that when she was slee ping, the appellant woul d come into her room, pull her panties down, and “put his priv ate into [hers].”

Upon hearing that her husband was sexually abu sing her daughter, Stone became so upset that she immediately stopped at a pay phone to call her other2 Presumably, Jarvis was unwill ing to get involv ed because he was also the appellant’s supervisor. 3 daughter, who was at

home alone with the appellant.When A.S. answered the phone, Stone asked her daughter w hether the appellant had tried t o do anything with her. A.S. replied that the appe llant had tried things but that she would not let hi m. A.S. also said that the appell ant tried earlier that day to put his hand down her j umper while Stone and L.S. wer e at the store. Stone then told A. S. to get away from the appellant and that she would come back home to get her.

On the way back to her house, Stone decided to contact the p olice, and she drove to the house of Terry Jarvis, who was a special deputy with the Sheriff’s Department. Although Stone told Jarvis that the appellant was abusing her daughte rs, Jarvis stated that he di d not want to get inv olved. 2 Instead, Jarvis suggested that Stone should call the police from a convenience store near her house. Stone then took L.S. to the convenience s tore and called the police. Shortly thereafter, an officer of the Shelby County Sheriff’s Office met Stone and L.S. at the store and dr ove them to their house. While on the way to the house, L.S. told the officer that she had been raped by the appellant. Someti me after they arrived at the house, Stone’s other daughter, A.S., told the same officer that th e appellant had fondled but not raped h er.

Three days later, Stone took both of her daughters to the Rape C risis Center for a physical examinati on. The examination of A.S. show ed that her hymen was intact and that nothing appeared abnormal other than a vagi nal discharge. The examination of L.S., howev er, showed that she lacke d a hymen and had an enlarged introitus. The examining nurse testified that these findings were consistent w ith sexual penetration, and that the enlarg ed introitus indicated that “this is something that happened more than once.”

On August 9, 1994, a Shelby County grand jury returned two separate indictments against the appel lant charging him w ith aggravated sex

ual battery and with rape of a child. Ea ch indictment alleged that the offenses occurred s

ometime during the period betw

een July 1, 1993 and March 4 , 1994. Immediately prior to trial3 The record is not entirel y clear whether the St

ate moved for mandatory joinder o f offenses pursuant to Rule of Criminal Procedure 8(a) or w h ether the St ate sought per missive joi nder under Rule 8( b). The State ’s argum ents at the consolidation hearing, however, strongly suggest that the State sought permissive joinder under th e “sam e or sim ilar charac ter” stand ard of R ule 8(b). Further, the State argues on appeal that the offenses were prope rly con solidat ed under Rule 8(b). Therefore, we will analyze the issues i n this case according to

the rule s governing permissive joi nder and severance.

4 The Court of Criminal Appeal s concluded that the error was harmlessbecause (1) the St ate elected to submit to the jury t

wo very di stinct

offenses; (2)

the tri al court i nstructed the jury to consider

the test imony of the vict ims only as t o each separate off

ense; (3) t he trial

court inst ructed the j ury to t reat the cases a s separa te an d dis tinct cases; and (4) t he dispari ty i n the verdi cts indi cated that the jury

considered t he charge s and the evidenc e sepa rately. 4 on May 8, 1995, the State orally moved to consolidate both indictments, 3 and the appellant objected to the consolidation. The trial court overruled the appellant’s objection and consolidated the offenses on the belief that indictments shoul d be joined for reasons of judicial economy. Although the appellant did not move for a severance of offenses after his objection was ov erruled, the appellant renew ed his objection to consolidation after the State’s proof and in a motion for a new trial.

Following a five-day trial, a jury convicted the appellant of misdemeanor assault and of child rape. The trial cou rt sentenced the appellant to ser ve concurrent sentences of eleven months, tw enty-nine days for the as sault conviction and eig hteen years for the child rape conviction. In addition , the court fined the appellant $2,500.00.

On appeal to the Court of Crimi nal Appeals, the appellant arg ued, among other things, that the evidenc e was insufficient to support a conviction on either indictment and that the indictments were improperly consolidated. The Court of Criminal Appeals upheld the child rape convi ction, but it reversed and dismissed the assault conv iction for insufficient evidence. The intermediat e court also held that the indictments were improperly consolidated because the offenses were not parts of a common scheme or plan. A majority of the cour t, however, found that the co nsolidation error w as harmless and affirmed the child rape conviction. 4 In dissent, Judge Dav id Hayes relied on State v. Ho yt , 928 S.W.2d 935 (Tenn. Crim. App. 1995), and stated th at because the offenses were alleg ed in open-dated indictments, the consolidation error was of “such prejudici al dimensions as to requi re reversal” of the conv iction.5 The appellant then sought rev iew in this Court on the sole issue of “whether the trial cou rt commit ted preju dicial err or by allowin g the Stat e to proce ed to tria l on two separate indictments . . . .” We agree with the Court of Criminal Appeals that the trial court abu sed its di scretion in consol idating th e indictm ents in th is case, b ut we disagree that the error was harmless. Therefore, the judgment of the Court of Criminal Appeals is affirmed i n part as modified and revers ed in part.

STANDARD OF APPELL ATE REVIEW

We review decisions concerning permissive joinder and severance of offenses pursuant to Rules of Criminal Procedure 8(b) and 14(b)( 1) for an abuse of discretion. State v. Shirley , 6 S.W.3d 243, 247 (Tenn. 1999). As such, a trial court’s decision to consolidate or sever offenses will not be rever sed unless the “‘court appl ied an incorrect legal standa rd, or reached a decision w hich is against logi c or reasoning that caused an injustice to the party complaining.’” Id. (quoting State v. Shuck , 953 S.W.2d 662, 669 (T enn. 1997)).

CONSOLIDATION vs. SEVERANCE

The first issue we must resolve is whether this case is more properly characterized as a cons olidation case or a sev

erance case. Although the di stinction may initially appear immaterial, characterization of the issue is of considerable importance because the legal standards by which our review is governed vary depending upon the type of case i nvolved. To consolidate separate indictments under Rule 8(b), the state needs onl y to show that the offenses are parts of a common scheme or plan or that the offenses are “of the same or similar char acter.” In contrast, however, a defendant has a ri ght under Rule 14(b)(1) to a severance of offenses permissively joi ned, unless the offenses are parts of a co mmon scheme or plan and the evidence of one offense “would be admissible upon the trial o f the others.” After reviewing the Rules of Criminal Procedure, we conclude that this case is more properly governed

by the severance prov isions in Rule 14(b)( 1).6 Because the consolidation and sev erance provisions of the R ules of Criminal Procedure operate according to different standards, a defendant may hav e the right to a severance of offenses even wh en those offenses were properly joined initially. For example, a defendant has an absolute r ight to sever offenses that ar e only of the same or similar character because the sole exception to the defendant’s right to a

severance under Rule 1 4(b)(1) does not even m ention offenses that are of the

same or similar character. See Shirley , 6 S.W.3d at 246; cf. State v. Peacock , 638 S.W.2d 837, 840 (Tenn. C rim. App . 1982) ( stating that offen ses may

not be pa rts of a “common scheme or plan although the offenses may be of the ‘same or simil ar character’”). Likew

ise, although Rule 8(b) permits consolidation w hen the offenses are parts of a common scheme or plan, Rule 14(b)(1) can be use d to sever those offenses if evidence of each offense is not admiss ible in the trial of the other s. In fact, because a defendant has a right to a severance of offenses in all cases but one, the Rules allow a trial court to consolidate offenses over the defenda nt’s objection only when the offenses are parts of a common scheme or plan and evidence of each offense is admissible in the tri al of the others. Consequently, when a defendant objects to a pre-trial consolidation motion by the state, the trial court must consider the motion by the severance pr ovisions of Rule 14(b)( 1), not the “same or simila r character” standard of Rule 8(b).

The State argues that this cas e should be governed by the consolidation provisions of Rule 8 becaus e the appellant failed to move for a severance and because he did not cite as err or in his motion for new tr ial the court’s failure to

sever the offenses. In essence, the State arg ues that the appellant has wai ved his right to a severance of offenses by not formally moving for a severanc e of offenses pursuant to Rule 14(b)(1), and as such, the proper legal standard to be considered in this case is whether the offenses are of the “same or similar characte r” as contemplated by Rule 8(b). We disagree.

In the vast majority of permissive joinder and s everance cases, the offenses sought to be joined have been consolidated by the state i n the original indictment or information pursuant to Rule 8(b ). In the usual case, therefor e, the burden is on the5 Tennesse e Rule of Criminal Procedu re 2 states that “[ t]hese rul es are intended to provi de for the just determinati on of every criminal pr

oceeding. They shall be construed to secure simplici ty i n procedure, fairness in adm inistration an d the elim ination of un justifiable ex pense and dela y.”

6 W e note that because the State did not m ove to cons olidate the indictments until immediately before voir dire, the State may have wai ved its privil ege to joi n the two i ndictments. Rul e of Crimina l Procedure 12(b)(5) requires t hat motions for consolidat ion of charges be made prior t o trial , and courts h ave inter preted the phrase “pri or to trial” t o mean “sometime earlier t han ‘theday of t he trial when the jury

is wait ing in t he hall.’” See State v. Hamilton , 628 S.W.2d 742, 744 (Tenn. Crim. App. 1981) (quoting and app roving of interpr etatio n of Rule 12(b) by trial judge). However, because t here are excepti ons to thi s rule and because this i ssue has not been raised and pr eserved by t he appellant , we do not addr ess its i mpact on this case. See Tenn. R. App. P. 13(b); 36(a). 7 defendant to move for a severance of those offenses and to satisfy the criteria of Rule 14(b)(1) before separate tri als will be grant ed. Unless the defendant moves to sever the offenses prior to trial or at an otherwise appropri ate time, the defendant waives the right to seek separate tr ials of multiple offenses. See Tenn. R. Crim. P. 12(b)(5); 14(a).

Less frequently, howev er, the state may seek to co nsolidate offenses contained in multiple indictments upon moti on 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 c ommon scheme or plan and that evidence of each offense is admissibl e in the trial of the others. After an objection to consolidation has been overruled, the defendan t is not then required to immediately move for a severance in or der to preserve a sev

erance 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 objecti on to consolidation is ov erruled makes little pra ctical sense. Further, such a ru le would emphasize tech nicality of procedure ov er substantive fairness, would add unjustifiable expense and dela y to the proceedings, and would defeat the very purposes to be served by the Rules of Criminal Proc edure. 5

In the present case, the State sou ght consolidation of the tw o indictments upon motion, although it did not seek the consolidation until the very morning of trial. 6 Under these circumstances, the appellant’s objection to the State’s consolidation motion effectively notified the c ourt of his desire to be tri ed separately on both indictments, and as a practic al matter, the appellant’s obj ection to consolidation had the same procedural and substanti ve effect as a formal motion to sev er. We hold,7 Of course, the d e fendant would need to rai se the obj ection agai n in a motion for a new trial to prop erly preserv e the issu e for app eal. See Tenn. R. App. P. 3(e ); c f. State v. Schaller , 975 S.W.2d 313 (Tenn. Crim. App. 1997) ( holding that because defendant did not move again for a severance after close of state’ s proof, t he issue of sever ance was not preserv ed). Because the

appellant

in thi s case did renew his objecti on to consoli dation aft er the State’s proof and agai n in his moti on for new trial, he there by pro perly preser ved his o bjection fo r appea l.

8 Cf. Bullard v. S tate , 208 Tenn. 641, 645-46, 348 S.W.2d 303, 305 (1961) (s tating that “the propriety of try ing toget her separate i ndictments or informati ons against t he same accused over his o bjection re sts in the sound discr

etion of the tri al court,which has the obl igati on to safeguard no t only the righ ts of th e govern men t but also of the acc used a nd to see that such rights are n ot jeopar dized”). 8 therefore, that irrespectiv e of whether a defendant formally mov es for severance or whether a defendant merely obj ects to the state’s pre-tr ial motion for consolidation, the issue properly pr

eserved is one of severance. 7 In either case, the trial court must consider whether consol idation is proper in li ght of Rule 14(b)(1), not whether the offenses meet the “same or similar character” stand ard contemplated by Rule 8(b). 8

SEVERANCE OF O FFENSES

Having decided that the consolidation issue in thi s case is governed by the severance provisi ons of Rule of Criminal Procedur e 14(b)(1), we must now decide whether the trial cour

t abused its discretion by trying the offenses alleg ed in both indictme nts in a sin gle trial. Rule 14(b )(1) state s that “[i] f two or mo re offe nses have been joined or consolidated for t rial pursuant to Rule 8(b), the defendant shall have a right to a severance of the offenses un less the offens es are part o

f a common scheme or plan and the evidence of one w ould be admissible upon the tri al of the others.” As this Court has previously interpreted Rule 14, the “primary issue” to be considered in any severance case is

whether evidence of one offense w ould be admissible in the trial of the other if the two offenses remained severed. See State v. Burchfield , 664 S.W.2d 284, 286 (Tenn. 1984). In its most basic se nse, therefore, any questi on as to whether o ffense s should b e tried se parately p ursuant to Rule 14 (b)(1) is “re ally a question of evidentiary relevance.” State v. Moore , 6 S.W.3d 235, 239 (Tenn. 1999); see also Shirley , 6 S.W.3d at 248.9 But see Tenn. R. Crim. P. 14(a)(allo wing a motion t

o sever offenses t

o occur “before or at

the close of all ev idence if

based upon a ground not previ ously

known”); Tenn. R. Cri m. P. 12(f) (allowing the court to grant relief from a failure to “raise defenses or objections or to mak e requests” when cau se is shown). 9 A motion to consolidate or sev er offenses is typically

a pre-trial motion, see Tenn. R. Crim. P. 12(b)(5), 9 and consequently, evi dence and arguments tending to establish or negate the propriety of consolidation must be presen ted to the trial court in the hearing on the motion. Cf. Bruce v. State , 213 Tenn. 666, 670, 378 S.W.2d 758, 760 (1964) (stating th at decisions to join offenses neces sarily must be made prior to trial). Before consoli dation is proper, the tri al court must conclude from the evidence and arguments pres ented at the hearing that: (1) the multiple offenses constitute parts of a common scheme or plan, Tenn. R. Crim. P. 14(b)(1); (2) evidence of each offense is relevant to some mate rial issue in the trial of all the other offenses, Tenn. R. Evid. 404(b)(2) ; Moore , 6 S.W.3d at 239; and (3) the probative v alue of the evidence of other offenses is not outw eighed by the prejudici al effect that admission of the evidence would have on the defendant, Tenn. R. Evid. 404(b)(3). Furthe r, because the trial court’s decision of whether to cons olidate offenses is determined from the evidence presented at the hearing, appellate courts should usually only

look to that evidence, along w ith the trial court’s findings of fact and conclusions of la w, to determine whether the tri al court abused its discr etion by improperly joining the offenses.

The requirement that pre-tr ial evidence be introduc ed tending to establish or negate the presence of a common scheme or plan presents special pro blems when the indictment alleges sex ual offenses but alleges no specific date upon which the offenses occurred. When an indictment alleges that sexual offenses have occurr ed over a period of time again st a single victi m, then the state may introduce other evidence at trial of unlawful sexual contact between the defenda nt and the victim occurring during the time alleged in the ori ginal indictment. State v. Rickman , 876 S.W.2d 824, 828 (Tenn. 1994). The state is requir ed, however, to make an el ection “at the close of its proof-in-chief as to the particular of fense or offenses for which it is seeking a conviction.” See, e.g. , State v. B rown , 992 S.W.2d 389, 39 1 (Tenn. 1999); Rickman , 876 S.W.2d at 828; Burlison v. State , 501 S.W.2d 801, 804 (Tenn. 1973).10 For example, the el ec tion proced ure works to preser ve the defend ant’s con stituti onal ri ght to a unanimous jury v

erdict, and it wor ks to protect a defendant agai nst double je opardy. Brown , 992 S.W.2d at 391. Election also “enable[s] the defendant to prepare for an d m ake his de fens e to th e spe cific charge .” Burlison , 501 S.W .2d at 803

.

11 In general , there ar e three ty

pes of common scheme or plan eviden ce recognizedin Tennessee: (1) offenses that reveal a distinctive design or are so similar as to consti tute “si gnature” cri mes; (2) offenses that are part of

a larger, continui ng plan or conspi racy; and ( 3) offenses th at are allpart of t he same criminal transac tion. See Shirley , 6 S.W .3d at 248 ; Moore , 6 S.W .3d at 240

. 10 The election requirement serves several important functions, 10 including the fact that it “enables the trial judge to review the weight of the evidenc e in its role as thirteenth juror[,] and it enables an appellate court to r eview the legal s ufficiency of the evidence.” Brown , 992 S.W.2d at 391; see also State v. Shelton , 851 S.W.2d 134, 137 (Tenn. 1993). Election by the state after the close of its pr oof serves these review functions well because rev iew of the evidence obv iously cannot be performed unti l the close of all the proof. In ruli ng upon a consolidation or s everance motion, howev er, a trial court does not hav e the luxury of waiting until the state’s e lection of offenses to decide whether the specific crimes alleged actuall

y constitute parts of a common scheme or plan. Indeed, any such determination at this late po int in the trial would require a defendant to bear an enor mous risk of unfair prejudice s olely for considerations of economy and ex pediency in judicial administration.

The facts of this case illustrat e well the dangers i nvolved in waiti ng until the close of proof to determine whether a common scheme or plan in fact ex ists. Both indictments alleged cri mes occurring between July 1, 1993 and March 4, 1994, and at the hearing on the consolidation motion, the State intro duced no proof that these crimes fell into any of the thr ee types of common scheme or plan ev idence. 11 As appellant’s counsel stated:

These are two separate types of offens es on sep arate vict ims . . . [a nd] we don’t know if one is a witness to the other. We do not know if they occurr ed at the very

same time, o n both victims at the same ti me. We don’t know anything ab out this consolid ation ot her than the fact that the re were two victims.11

In response, the assistant di strict attorney identi fied for the court only one ex ample of the appellant’s alleged cr ime:
[I]n reviewing int

erviews with the childr en, there is at least one occ asion where they were in the same bed. And though I can not predict every word the child is going to say, . . . they were in the same bed and both of them knew they were in the same bed and both of them knew they w ere in th e same bed with the defendant. And that’ s on at least one occasion.
When appellant’s coun sel asked whether this occasion was the offense the State would elect to submit to the jury, the assistant district attorney simply responded “No.”

Indeed, the State’s only arg ument at the hearing for not keepin g the offenses severed was that “i

t is the same time frame, the same househol d, the same parent, the same step-father, and the same inv estigation.”

Although the State character ized this case as “a classi c case for consolidating,” the trial court over

looked the fact that a defendant has an absolute right to sever offenses that are merely of the “same or similar character.” Nevertheless, the State w as allowed to introduce proof during the course of the trial that the appel lant sexually abused b oth of his step-daughters on multiple occasions, despite the fact that the circumst ances and methods of the abuse varied so widely

over the nine-month period alleged by the indictment s that we can find no clear common scheme or plan.

As the comments to Rule of Crimin al Procedure 8 make clear, the purpose of the severance provis ions is to ensure that the defendant is insulated from the evidence of the other offenses when that evidence is not otherw ise admissible. Tenn. R. Crim. P. 8 advisor

y commission’s cmts.; see also Burchfield , 664 S.W.2d at 288. Given this rationale and the fact that motions to consolidat e offenses must generally be heard and decided prior to t rial, we conclude that the Rules do not permit the State to justify an erroneous cons olidation of offenses merely by electing the two offenses from all the proof that most closely resemble a commo n scheme or plan. Not only would such a result be c ontrary to the plain lan guage of Rule 14(b)(1), which states that the defendant “shall have a r ight to a severance of the offenses” unless the offenses are parts of a common scheme or plan,but such a result woul d also be contrary to basic notions of fundamental fa irness.12 In at least one reported case , the Court of Crim inal Appe als looke d to the offenses l ater elect ed by the state to

determine whether

multipl e offenses in anopen -da ted indi ctment were properly consoli dated prior to trial. See State v. Ho yt , 928 S.W .2d 9 35 (T enn . Crim

. App. 1995). No r ational e was presented by the Hoyt court, and the court seems to have mer ely assumed the correct ness of t his method of revi ew. However, for the re asons already stated, appellat

e courts shoul d look to t he e vidence present ed at the consolidat ion or se vera nce hear in g, and to the extent tha t Hoyt can be read to permit appell ate revi ew of severance issues based onl y upon the offenses act ually elected at

the close of t he evidence, it i s overruled

. 12 Because the State introduced no ev idence of a common scheme or plan at the consolidation hearing, w e find that the trial court abus ed its discretion in not holding separate trials on each of the i ndictments. In all cases i n which the state seeks t o consolidate multiple offenses by pre-trial motion over the objection of the defendant, the state must bring forth sufficient evidence at the hearing to establish that specific acts constitute parts of a common scheme or plan . When the offe nses are alleged in an open-dated indictment, the state may not meet this burden of producti on with evidence later developed at trial, 12 and this Court will not look to such evidence to determine whether consoli dation was proper.

While we do not necessarily req uire that the state make a pre- trial election of the offenses it will ultimat ely present to the jury

for conviction, we r

ecognize that the requirements of Rule 14(b)( 1) may practically have this effect in many cases when the state seeks permissive joinder of offenses presented in an open- dated indictment. We also recognize that in some cases, the stat e may have difficulty deciding in advance upon which offense it should seek conviction; indeed, this is the very purpose of allowing the state to maintain some flexibility in prosecutions of child sexual abuse

cases. Cf. Rickman , 876 S.W.2d at 828; Cox v. State , 196 Tenn. 624, 628, 270 S.W.2d 182, 183 (1954). However, this difficulty must be balanced against the defendant’s right to a seve rance of offenses and the need to avoid ex posing the defendant to needless risk of unfair pr ejudice. Therefore, when the s tate seeks to consolidate offenses that are alleged in open-dated indictments, w e hold that the state must introduce sufficient proof at the pre-trial hearing to support a finding that specific acts constitute parts of a common s cheme or plan.

HARMLESS ERROR13 Having determined that the trial court abused its discretion in consolidating the indictments over the appell ant’s objection, we must now decide whether that abuse of discretion affirmatively

appears to have affected the outcome of the tr ial. See Tenn. R. Crim. P. 52(a); Tenn. R. App. P. 36(b). Because the Court of Criminal App eals dismissed the assault charge, the only offense before this Cour t is that of child rape. The State argues that the Court of Criminal Appeals was c orrect in holding that the consolidation error w

as harmless because the jury instructions cured any error and because the disparity in the verdicts demonstrated that the jury considered each offense separately. Therefore, the State argues, because the evi dence was “abundant and legally sufficient” with respect to the child rape indictment, a ny error in joining the two indi ctments did not affect the outcome of the trial . We disagree.

In most severance cases, “the line between harmless and prejudicial error is in direct proportion to the deg ree . . . by which proof exceeds the standard req uired to convict . . . .” Delk v. State , 590 S.W.2d 435, 442 (Tenn. 1979); see also Shirley , 6 S.W.3d at 250; Moore , 6 S.W.3d at 242 . In this case, the evi dence supporting the child rape indictment consi sted only of the victim’ s testimony—either dir ectly from L.S. or through second-hand testi mony from other witnesses— and of medical testimony establishing that the victim’s physical condition was consistent with multiple occurrences of sexual penetration. Although this Court will not reweigh the evidence where the evidence is

sufficient for conviction bey ond a reasonable doubt, see State v. Cabbage , 571 S.W.2d 832, 83 5 (Tenn. 1978), the evidence presented was hardly unimpeachable on any material p oint. For example, the ex amining nurse admitted that L.S.’s condition could h ave been the result of any one of a number of causes, and that at most, her condition w as only consistent w

ith sexual penetration. Further, L.S. testified that she could not remember making an earlier statement that contradicted her trial testimony w

ith respect to being raped , and she was unable to say whether her memory of the events was better at the time of trial or when the events actually occurred. We agree with the Court of Criminal Appea ls that when all the evidence is considered, the evidence was ultimately sufficient for conviction beyond a reason able doubt. However, th e evidence prese nted was certainly no t overwhelming.14 Writing in dissent in the intermediat e court, Judge Hayes r elied on State v. Hoyt , 928 S.W.2d 935 (Te nn. Crim. App. 1995), to find that “the appellant was unduly prejudiced by the joinder of these offenses.” In Hoyt , the Court of Criminal Appeals reversed three convi ctions on the grounds that j oinder of open-dated indictments involving multi ple victims was i nherently prejudicial . As was the case in Hoyt , Judge Hayes concluded that it was probable the testimony from each victim in this case bolstered the credibility of the other and invited the jury’s reliance on the appellant’s perceived propensity to sexually abuse his daughters.

We agree with Judge Hayes that joinder of open-dated indictments i nvolving multiple victims is usually prejudicial because State v. Rickmanseems to allow the jury to hear evidence of countless sexual episodes from each of the different victims. In most cases, a real probabil ity exists that the jury could be overw helmed by the sheer volume of prejudicial ev idence and that the jury co uld be tempted to convict based upon a defendant’s propensity to c ommit crimes rather than conv ict solely upon evidence relating to the charged offense. We do not agree, however, that joinder of open-dated indictments alleging offenses against m ultiple victims is inherently prejudicial. There may be some cases in which a j ury is able to giv e separate attention and consideration to the evidence presente d under each indictment such that an error in consolid ation will not affirmativ ely affect the outcome of the trial.

Nevertheless, we conclude that the verdict in this case probably resulted in part from unfair prejudice ensuing fro m improper consolidation of the tw o indictments. The jury heard statements from L.S. , who stated that the appellant raped her “every week,” and from A.S., who stated that the appellant fondled her so often that she co uld not count. In addition, each vi ctim testified to a number of sexua l encounters with the appellant that were unrelated to the offense s eventually elected by the State. It is unlikely that the jury

was not influenced by the perceived propensity of the appellant to sexually abuse his s

tep-daughters, or that the t estimony from each of the victi ms was not bolstered by the same ty pe of testimony coming from the other. This perceived propensity combined wi th less than abundant evidence of rape leads us to conclude that the consolidation error affirmatively affected the outcome of the t rial. Therefore, a13 Although there are th ree d iffere nt wa ys to c om mit a ssa ult in Tenn essee , see Tenn . Code A nn. § 39- 13-101 (1 997 ), the j ury w as on ly instru cted as to the m etho d req uiring the d efen dan t to pu t the vic tim in reasonable fear

of imminent bodil

y inj ury. The State did not even attempt to argue in t he court bel ow that the proof supported this t ype of assaul t, but r

ather it argued that the evidence supp orted ass ault based upon extre me ly offe nsive or pro voca tive ph ysica l c ontact. W e conclude, t herefore, that because no evi dence supported the charged off ense, the ver

dict must have been the result of something other than consider

ation of the evi dence.

14 The State al so argues that th e error was harmless because the t rial co urt gave cl ear instructions that the ju ry w as t o consider each i ndictment separat ely. Although a j ury is presumed to foll ow the instruct ions given by the tria l judge, State v. Williams , 977 S.W .2d 101, 106 (Tenn. 1998 ), this presu mption is not conclusi

ve, and where t here is an indicat ion that the juror

s did not follo w the inst ructions, an instru ction will not help cur

e an otherwise pr

ejudici al error. As al ready stat ed, the j ury convi cted the appel lant on an offense for which t here was no evidence, a nd this i ndicates t hat there may have been some spil l-over ef fect between the two i ndictmen ts. To the extent tha t the jury con sidered the prop ensity of the a ppellant to sex ually abuse his daughter, the j ury al so ignored t he “clear” instruct ions by t he trial court. Theref

ore, the jury instructions in thi s case will not work to cure an otherwise prejudicial error.
15 new trial on this ind ictment is needed to ensure that the appellant’s convicti on is not the result of unfair prejudice.

The State argues that the reduction by the jury of the aggravated sexual battery charge to that of misdemeanor assaul t shows that the jury

separately considered the evidence of each offense. On the contra ry, however, the jury’s conviction on this indictment further strengthens our conclusion that the jur y was unduly prej udiced. Because we agree wi

th the Court of Criminal Appeal s that no evidence supported a conviction on the assault charge submitted to the jur y, the jury must hav

e relied upon something other than the evi dence to reach its verdi ct. 13 It is not improbable, therefore, that the jury r elied upon the perceived pr opensity of the appellant to sexually abuse his step-daughters to reach a decision in both cases, and for this reason, we find that the consolidation error was not harmless. 14

CONCLUSION

To summarize, we hold that the appellant’s objection to the State’s pre-trial motion to permissively consolidate offenses, along with his renewal of that objectio n in his motion for new trial, properly preserved the severance issue for appeal. W e also hold tha t the tria l court in t his case a bused its discretio n in conso lidating t he two indictments because the State pro duced no evidence at the consol idation hearing to demonstrate that the two offenses were parts of a common scheme or plan. Because we further hold that this er ror affirmatively affected the out come of the trial on its16

merits, we vacate the appellant’s conviction and sentence for child rape and r emand this case to the Shelby County Criminal Court for a new trial consistent with this opinion. The judgment of the Court o f Criminal Appeals is affirmed in part as modified and reversed in part.

Costs of this appeal are asses sed against the State of Tennessee.

_______________________________ WILLIAM M. BARKER, JUSTICE

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