FILED

November 1, 1999

Cecil Crowson, Jr.

Appellate Court Clerk

IN THE SUPREME COURT OF TENNESSEE

AT KNOXVILLE

STATE OF TENNESSEE, ) FOR

PUBLICATION

)

Appellee, ) FILED: 

NOVEMBER 1, 1999

)

v. ) BRADLEY CRIMINAL

)

DONALD RAY SHIRLEY, ) HON. MAYO L. MASHBURN,

) JUDGE

Appellant. )

) No. 03S01-9902-CR-00014

For the Appellant: For the Appellee:

William J. Brown Paul G. Summers

Nashville, Tennessee Attorney General & Reporter

Michael E. Moore

Solicitor General

Elizabeth T. Ryan

Assistant Attorney General 

Nashville, Tennessee 

OPINION

AFFIRMED IN PART,

REVERSED IN PART, AND

REMANDED

BARKER, J.

In this case we consider the proper standard of appellate review of a trial

court’s denial of a motion to sever offenses under Tennessee Rule of Criminal

Procedure 14(b)(1). For the reasons set forth below, we hold that a denial of a

severance will only be reversed for an abuse of discretion. We also hold that the trial
 

1

 The first count alleged that the appellant robbed a convenience store on November 29, 1995, at

8:00 p.m. The second count alleged that ten days later on December 9, 1995, the appellant robbed a

video rental store at 7:10 p.m. Counts three and four of the indictment alleged robberies of two

conve nience s tores on Dece mbe r 10, 199 5, occu rring at 4:00 p.m. an d 4:30 p.m . respec tively. 

2

court in this case abused its discretion in denying a severance because the methods

used to commit the offenses were not so materially distinct or unique as to rise to an

inference of identity. Because we find that this abuse of discretion was not harmless,

the decision of the Court of Criminal Appeals is reversed, and this case is remanded

to the trial court for new trials.

BACKGROUND

On January 17, 1996, a Bradley County grand jury returned an indictment

charging the appellant, Donald Ray Shirley, with four counts of armed robbery.1

Shortly thereafter, the appellant moved to have the offenses severed and tried

separately pursuant to Rule of Criminal Procedure 14(b)(1). During the hearing on the

motion to sever, the State argued that the offenses were parts of a common scheme

or plan because the similarities of the offenses revealed that a distinctive design was

employed. In response, the appellant argued that although the offenses were similar,

the differences in the offenses were such that no inference of identity could be made. 

After taking the matter under consideration, the trial court denied the appellant’s

motion without stating any of its findings of fact or conclusions of law on the record. 

Following a two-day trial, a jury found the appellant guilty of three of the four

counts of armed robbery. He was sentenced to serve concurrent sentences of twelve

years for each of the three offenses and was fined a total of sixty-thousand dollars. 

On appeal, the Court of Criminal Appeals affirmed the appellant’s convictions and

sentences, and in addressing the standard of appellate review, the intermediate court

held that a denial of a severance was to be reviewed for an abuse of discretion. That

court also held that the trial court acted within its discretion in denying the motion to

sever because the evidence presented at trial demonstrated that the offenses were

parts of a common scheme or plan. 
 

2

The Jett court quoted from our decision in Bruce and listed the circumstances under which

conso lidation of offe nses w as gen erally proper: 

(1) where the offenses ch arged are similar, related, or connected, or (2) are of

the same or similar character or class or (3) involve or arose out of the same or

related or connected acts, occurrences, transactions, series of even ts, or c hain

of circumstances , or (4) are based on acts or transactions con stituting part of a

common scheme or plan or (5) are of the same pattern and committed in the

same manner, or (6) where there is a common element of substantial importance

in their commission, or (7) where the same, or much the same, evidence will be

competent and admissible or required in their prosecution, and if not joined for

trial the re petitio n or re prod uctio n of s ubs tantia lly the sa me testim ony will be

required on eac h trial. 

See 378 S.W.2d at 759-60. In each of these circumstances, “there is some connecting link between the

indictments to be consolidated.” Bruce, 213 Te nn. at 669 , 378 S.W .2d at 759 . 

3

We agree that a trial court’s denial of severance should be reviewed for an

abuse of discretion. However, we hold that the trial court applied an incorrect legal

standard and therefore abused its discretion in finding that the offenses were parts of

a common scheme or plan. 

STANDARD OF APPELLATE REVIEW

The proper standard by which to review a denial of a motion to sever offenses

under the Rules of Criminal Procedure is an issue of first impression for this Court. 

Prior to the adoption of the Rules, this Court followed the principle that the “matter of

consolidating separate indictments for trial is procedural[,] and generally this is a

matter within the discretion of the trial court.” See Bruce v. State, 213 Tenn. 666, 667,

378 S.W.2d 758, 759 (1964). The discretion of the trial courts to consolidate several

offenses in a single trial was very broad, and although such discretion was not

absolute, this Court usually only required that the consolidated offenses contain some

“connecting link.” Id. at 669, 378 S.W.2d at 759; see also Jett v. State, 556 S.W.2d

236, 237-38 (Tenn. Crim. App. 1977).2

 In rare cases, this Court would reverse a

conviction for improper consolidation of offenses, but such a reversal was usually

limited to circumstances in which the offenses were either wholly unrelated or the

evidence establishing one offense was “entirely different from the evidence . . .

[establishing] the other offense charged.” See Bullard v. State, 208 Tenn. 641, 645,

348 S.W.2d 303, 305 (1961). 

Since the effective date of the Rules of Criminal Procedure on July 13, 1978,

however, the discretion of the trial courts to consolidate or sever offenses has been
 

3

 Although Rule 8(a) p rovid es fo r ma ndatory join der in these cas es, th e trial c ourt s till does retain

discretion to grant a s everan ce of the offens es und er som e circum stance s. See Tenn. R. Crim. P.

14(b)(2). However, since the decision to grant a severance from a mandatory joinder is governed by

specific criteria, the trial court’s discretion is not as broad as it was prior to the adoption of the Rules of

Criminal Procedure.

 

4

 Since no provision in the Rules allows for consolidation of wholly unrelated offenses that do not

even share a similarity of conduct, it follows that the trial court has no discretion to order a consolidation

of those offens es. Cf. Bruce, 213 Te nn. at 669 , 378 S.W .2d at 759 (holding re versible error to

consolidate wholly unrelated offenses, even prior to the Rules of Criminal Procedu re).

 

5

 See, e.g., State v. Furlough, 797 S.W.2d 631, 642 (Tenn. Crim. App. 1990) (“It is within the trial

court’s dis cretion w hether to grant a se veranc e of offe nses.”); State v. Wisem an, 643 S.W.2d 354, 362

(Te nn. C rim. App . 1982) (“T he iss ue of seve ranc e or jo inder of off enses is a lso a m atter which is

addres sed to the sound discretion of the trial judg e.”). 

 

6

 See, e.g., State v. McKnight, 900 S.W .2d 36, 50 (Tenn. C rim. App . 1994) (“W hile se vera nce is

ordinarily a matter which rests within the sound discretion of the trial court, that general rule is not

neces sarily applicab le to the sev erance of offen ses.”); State v. Edwards, 868 S.W.2d 682, 691 (Tenn.

Crim. App. 1993) (“While severance is ordinarily a matter which rests within the sound discretion of the

trial court, that g eneral ru le is not nec essarily app licable in relation to the sev erance of offen ses.”); State

v. Peacock, 638 S.W.2d 837, 839 (Tenn. Crim. App. 1982) (“Likewise, the matter of severance of

offenses under R ule 14(b)(1) is not solely within the discretion of the trial court.”).

 

7

 In at least one case, the intermediate court stated that severance issues may not be within the

sound discretion of the trial cou rt, but it neverth eless ap plied an ab use of d iscretion s tandard . See

Edwards, 868 S.W.2d at 694 (concluding that “[i]n our view, the trial court acted within the boundaries of

4

more strictly governed. For example, consolidation of multiple offenses in a single trial

is now mandatory—and therefore outside the discretion of the trial court—when the

offenses “are based upon the same conduct or arise from the same criminal

episode . . . .” See Tenn. R. Crim. P. 8(a), 13(a).3 The Rules have also significantly

limited the court’s discretion to consolidate offenses that “are of the same or similar

character,” since in such case a defendant has an absolute right to a severance of

these offenses under Rule 14(b)(1) when a severance is requested. Further, the

Rules still contemplate that trial courts have no discretion to consolidate offenses that

are wholly unrelated or without any similarity of conduct, at least when consolidation is

over the defendant’s objection.4

Because the Rules of Criminal Procedure have significantly limited the

discretion of trial courts to consolidate and sever offenses, various panels of the Court

of Criminal Appeals have debated whether this decision under Rule 14(b)(1) is still

within the sound discretion of the trial courts. While some panels of the intermediate

court have continued to hold that trial courts still enjoy discretion to order a severance

of offenses,5

 other panels have stated that Rule 14(b)(1) seems to change that

general rule when the offenses are permissively joined pursuant to Rule 8(b).6 

Therefore, a uniform standard of review has not been used or developed. 7
its discretion in denying the motion to sever”). In other cases, the intermediate court has decided

severa nce qu estions w ithout refer ence to any stand ard of rev iew. See, e.g., State v. Adams, 859

S.W .2d 359, 3 62 (Te nn. Crim . App. 199 2). 

 

8

 As stated previously, since a defendant has an abs olute right to a severance of offenses that are

mer ely of the sam e or sim ilar charac ter, see Tenn . R. Crim . P. 14(b)(1 ), the discre tion of the trial co urt to

consolidate these types of offenses is virtually eliminated.

5

To clarify the law in this area, we hold that decisions to consolidate or sever

offenses pursuant to Rules 8(b) and 14(b)(1) are to be reviewed for an abuse of

discretion. Reading Rules 8(b) and 14(b)(1) together, it is clear that the discretion of

the trial courts to permissively join and sever offenses is significantly limited in most

cases.8 In one case, however, the Rules still allow the trial court wide discretion to join

offenses for a single trial, i.e., when the offenses are parts of a common scheme or

plan and when the offense sought to be severed would be admissible as evidence in

the trial of the other offenses. Since the trial court retains discretion to consolidate

offenses in that one circumstance, it is logical that the trial court’s decision to

consolidate these offenses—or to deny a severance—should only be reversed for an

abuse of that discretion.

Discretion essentially “denotes the absence of a hard and fast rule.” See

Ballard v. Herzke, 924 S.W.2d 652, 661 (Tenn. 1996). The decision of a trial court to

sever offenses pursuant to Rule 14(b)(1) is never predetermined and will necessarily

turn on the facts of a particular case. Therefore, a trial court’s refusal to sever

offenses will be reversed only when the “court applied an incorrect legal standard, or

reached a decision which is against logic or reasoning that caused an injustice to the

party complaining.” See State v. Shuck, 953 S.W.2d 662, 669 (Tenn. 1997) (citing

Ballard, 924 S.W.2d at 661).

SEVERANCE

Although the trial court in this case held a hearing on the severance issue, the

court did not make any findings of fact or conclusions of law on the record. Therefore,

we have examined the transcript of the severance hearing in its totality to determine

whether the trial court abused its discretion in denying the defendant’s motion to sever

the offenses. After closely examining all of the evidence before the court at the
6

hearing, we hold that the trial court abused its discretion in denying the motion to

sever the offenses, and we remand this case to the trial court for new trials on each of

the offenses.

The “primary inquiry into whether a severance should have been granted under

Rule 14 is whether the evidence of one crime would be admissible in the trial of the

other if the two counts of indictment had been severed.” State v. Burchfield, 664

S.W.2d 284, 286 (Tenn. 1984). To ensure that a defendant receives a fair trial,

Tennessee Rule of Evidence 404(b) excludes evidence of “other crimes, wrongs, or

acts” committed by the defendant when offered only to show the defendant’s

propensity to commit those “crimes, wrongs, or acts.” However, when offenses

alleged to be parts of a common scheme or plan are otherwise relevant to a material

issue at trial, then Rule 404 will not bar their admissibility into evidence. See Bunch v.

State, 605 S.W.2d 227, 229 (Tenn. 1980). 

The relevance of offenses alleged to be parts of a common scheme or plan

depends upon the type of evidence offered. In Tennessee, there 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. See generally Neil P. Cohen et al., Tennessee Law of Evidence §

404.11, at 180 (3d ed. 1995). In this case, the Court of Criminal Appeals found that

the various robberies were committed with a distinctive design, and the State also

agrees that this is the only category into which these offenses could fall. 

The most common basis for offering evidence of a distinctive design is to

establish the identity of a perpetrator. See State v. McCary, 922 S.W.2d 511, 514

(Tenn. 1996); State v. Parton, 694 S.W.2d 299, 303 (Tenn. 1985). In this case, the

identity of the offender was the central issue at trial, and therefore, if a distinctive

design could be shown, then evidence of offenses constituting a common scheme or

plan would be relevant. However, before multiple offenses may be said to evince a

distinctive design, the “modus operandi employed must be so unique and distinctive
 

9

 See also Bunch, 605 S.W .2d at 230 (stating tha t before o ffense s ma y be said to c onstitute

signature crimes, “the modus operandi of the other crim e and of the crim e on trial m ust be sub stan tially

identical and must be so unique that proof that the de fendan t com mitted th e other o ffense fairly tends to

establish that he also com mitted th e offens e with whic h he is ch arged.”) (emp hasis in original). 

 

10 Although the robberies were committed with a black pistol, there was no agreement on the kind of

pistol used. In the November 29 robbery, the witness stated that she thought the gun was a bb gun,

although she was not sure. In the December 9 robbery, one witness definitely thought the gun was a bb

gun, but th e witn ess of the first ro bbery on D ecemb er 10 was em phatic tha t the g un was an automa tic

gun an d not a bb gun. Th e witness of the last ro bbery m erely desc ribed the g un as a “police gu n.”

 

11 The first robbery was of a convenience store on November 29, 1995, at 8:00 p.m. The second

robbery was of a video rental store ten days later on December 9 at 7:10 p.m. The last two robberies

were also o f con venie nce store s on D ecemb er 10 at 4:0 0 p.m . and 4:30 p.m . resp ective ly.

7

as to be like a signature.” State v. Carter, 714 S.W.2d 241, 245 (Tenn. 1986).9

Although the offenses need not be identical in every respect, Bunch v. State, 605

S.W.2d 227, 231 (Tenn. 1980), the methods used in committing the offenses must

have “such unusual particularities that reasonable men can conclude that it would not

likely be employed by different persons.” See Harris v. State, 189 Tenn. 635, 644,

227 S.W.2d 8, 11 (Tenn. 1950). Only when the method used to commit the crimes is

so unique as to be like a signature can the inference of identity properly arise. 

The State has argued in this case that the similarities in the offenses are such

that a distinctive design may be inferred. We agree that the offenses in this case do

share a number of similarities. For example, all four robberies were committed by a

person wearing a black ski mask with a black gun,10 the robberies occurred within a

relatively short period of time,11 and in three of the robberies the offender requested

that the cash register drawer be placed on the counter. However, a court must also

look to the methods used to commit the crimes and not merely enumerate their

similarities and differences. Even though offenses may be similar in many respects,

they can not be classified as signature crimes if they lack a distinct modus operandi.

When the methods used to commit the robberies in this case are examined,

none are so unique that they may be said to bear the stamp or imprimatur of the

appellant. The use of a black ski mask, gloves, and gun to commit armed robbery is

simply not so unusual that reasonable people would conclude that the same person

committed all of the offenses. See Harris, 189 Tenn. at 644, 227 S.W.2d at 11. 

Similarly, the offender’s request that the cash register drawer be placed on the counter
 

12 The Court of Criminal Appeals notes that in the one case where the offender did not request that

the cash draw er be place d on the co unte r, the w itnes s had alrea dy don e so. How ever, we fin d it

significant that before the witness of the second robbery on December 10 placed the cash drawer on the

counter, the offender walked into the store to the counter, cocked his gun, and told the witness to open

the register. The witness testified that the offender did not request that the drawer to be placed on the

counter when he demanded that she open the register, although the offender had so requested in all of

the other offenses. This witness placed the drawer on the counter of her own accord. It simply is not

clear that th e witness foiled the oth erwise a pparen t mod us ope randi of the offende r. 

 

13 Even the intermediate court conce ded that “the individual similarities between the robberies are

not particularly unique . . . .” State v. Shirley, No. 0 3C0 1-96 10-C R-00369, slip op. at 22-2 3 (Tenn. Crim .

App. May 27, 1998). Instead, the intermediate court believed that “when considered together, the

circum stance s of the o ffense s estab lished a dis tinctive des ign with suf ficient uniqu eness of me thod to

constitute a comm on schem e or plan.” Id. at 23. Respectfully, we fail to see how crimes that do not

have a unique method when examined individually somehow become more unique when viewed in the

aggreg ate. The crime s were e ither com mitted u sing a un ique m ethod, or they were n ot. 

 

14

 In the November 29 robbery, the witness stated that the offender was wearing a black shirt, and

in the second December 10 robbery, the witness testified on cross-examination that the offender was

wearing a gray swe atshirt. 

 

15 In addition, the witnesses to the December 9 robbery of the video rental store testified that the

gloves were too big for the offender, but the witness of the second robbery on the next day testified that

the gloves were not loose fitting.

 

16

 In the De cem ber 9 rob bery, the off ender e scape d in a white C hevy Co rsica or C hevy Bare tta

which was parked outside the store. In the other cases, the offender escaped on foot without any

witness es hea ring or se eing a ca r. 

In addition, the o ffender in the D ecemb er 9 ro bbery bac ked out of the s tore, watc hing h is victim s

as he left. In a ll of the other o ffense s, the offe nder turn ed to exit the store. 

In the November 29 robbery, the offender forced his victim to lie on the floor while he left, but

this did not occur in any of the other robberies.

 

17

 In the December 9 robbery, the offender took off his mask before he drove away which enabled

one witness to identify him. In the second robbery on December 10, the offender removed his mask

before he was even out of the store.

8

in three of the robberies does not show a distinctive design.12 “Different persons could

easily have employed the plan and method used in each robbery.” Cf. State v. Bobo,

724 S.W.2d 760, 765 (Tenn. Crim. App. 1981).13

Likewise, there are many differences in the robberies which demonstrate that

the offenses do not share a distinct or unique modus operandi. For example, the

testimony at the severance hearing established that the robber wore a green army

jacket in two of the robberies and that the offender wore a black shirt and gray

sweatshirt in the other two robberies.14 The offender was also described in three

cases as wearing black gloves, but the various witnesses disagreed as to whether the

gloves were cloth or leather.15 Further, the method of escape was different in the

robberies,16 and in two of the robberies, the offender removed his ski mask before the

robbery was completed.17 Because of the differences in the commissions of the

robberies, we are unable to say that a distinct or unique modus operandi was used.
 

18

 For ex amp le, all of the witne sses te stified that the offende r was a w hite ma le like the ap pellant,

that the offender had the same hair color as the appellant, and that the offender was about the same

height an d weight a s the app ellant. 

 

19 The term “modus operandi” is defined as a “[m]ethod of operating or doing things (M.O.). Term

used by police and criminal investigators to describe the particular method of a criminal’s activity.” 

Black’s Law Dictionary 1004 (6th ed. 1990) (em phasis added).

 

20

 Because there are no findings of fact or conclusions of law from the trial court in the record, we

cannot be absolutely certain of the trial court’s basis for its decision.

9

At the severance hearing, the State introduced evidence in an attempt to show

that the appellant was the person who committed all of the robberies. Although only

one witness was able to identify the appellant as the person who committed any of the

robberies, all of the witnesses agreed that the appellant shared the same physical

characteristics as the offender.18 However, the trial court must look for a distinctive

method used to commit the crimes and not simply for evidence tending to show that

the defendant was the offender. By its very definition, a modus operandi is not

revealed merely by evidence showing that the defendant committed the crimes sought

to be joined.19

 See also Young v. State, 566 S.W.2d 895, 898 (Tenn. Crim. App.

1978) (stating that the “test is not whether there was evidence that a defendant

committed both crimes, but whether there was a unique method used in committing

the crimes”). As such, to the extent that the trial court relied on this evidence to find a

distinctive design, it erred in doing so.

We hold that the trial court abused its discretion in refusing to sever the four

armed robberies. The trial court seems to have allowed consolidation of the offenses

based only upon the similarities in the offenses without regard to the presence of a

distinct and unique modus operandi.20 Therefore, by applying an incorrect legal

standard, the trial court abused its discretion in refusing to sever these offenses.

HARMLESS ERROR

Having found that the trial court abused its discretion in refusing to sever the

four armed robberies for trial, we must now determine whether that abuse of discretion

is reversible error. Tennessee Rule of Criminal Procedure 52 states that no conviction

is to be reversed on appeal “except for errors which affirmatively appear to have
 

21 The sole eye-witness to the second robbery on December 10 could not positively identify the

appellant as the offender at trial, nor could she identify the appellant in the line-up.

The sole e yewitn ess of the first D ecemb er 10 robb ery did identify the a ppellant at the trial.

However, she could not positively identify the appellant as the offender earlier at a line-up, and she

described herself as “real bad at noticing details.” At the line-up, she identified two people as the

possible offender.

There were three witnesses to the December 9 robbery. One of the witness from the December

9 robbery admitted that she was hesitant about her identification of the appellant as the offender, but she

testified that “her instincts” told her that the appellant “was the one.” A second witness could not make

an identification because it was too dark to see the offender. The third witness did make a pos itive

identification of the appellant from a photographic line-up.

 Finally, the sole witness at the November 29 robbery did make a positive identification of the

appellant as the offender alth ough she was certa in the offender had frec kles arou nd his eyes. It is

uncontroverted that the appellant has no freckles on his face.

 

22

 The sole eye-witness to the second robbery on December 10 originally stated that the offender

wore a gray sweatshirt. By the time of trial, her testimony changed to identify the offender as wearing a

gree n jac ket, d ue in la rge p art to h er pa ying m ore c lose atten tion to the offender in a dre am . At the time

of his arrest less than thirty minutes after this robbery, the appellant was arrested wearing a blue

sweats hirt.

The sole eye-witness to the first robbery on December 10 originally told the police investigator

that the offender’s hair was “straight, not curly.” By the time of trial, her testimony had changed so that

the offender’s hair w as “k ind of wavy,” a de scrip tion which mo re ac cura tely describ ed the app ellant’s hair

at tha t time . In addition, this w itnes s iden tified th e gre en jacke t at trial, but within an hou r of the rob bery,

she co uld not iden tify the color of th e jacke t.

The sole-eyewitness to the November 29 robbery originally identified the offender as wearing a

black s hirt. By the time of trial, she ch anged her testim ony to identify the offende r as wea ring a jack et,

which w as m ore con sistent with o ther witnes ses. 

In addition, all of the State’s witnesses stated that the jacket or shirt worn by the offender was

zipped or buttoned. However, the jacket the police found in the appellant’s car could not be zipped or

buttoned . 

10

affected the result of the trial on its merits.” See also Tenn. R. App. P. 36(b). After

reviewing the record as a whole, we are unable to conclude on the facts of this case

that the error was harmless.

The “line between harmless and prejudicial error is in direct proportion to the

degree of the margin by which the proof exceeds the standard required to convict,

beyond a reasonable doubt.” Delk v. State, 590 S.W.2d 435, 442 (Tenn. 1979). At

trial, the State presented six witnesses who testified to substantially the same details

on direct examination. Each witness testified that a person matching the defendant’s

height, weight, and hair color robbed their store wearing an army jacket and black ski

mask. The jury found the appellant not guilty of the November 29 offense, but it

convicted the appellant of the remaining counts.

Although the Court of Criminal Appeals held that the evidence was sufficient to

sustain the appellant’s conviction, the evidence against him was clearly not

overwhelming. For example, most of the eye-witnesses could not positively identify

the appellant as the offender,21 and much of the trial testimony was inconsistent with

statements given immediately after the robbery. 22 It is clear that the credibility of the
11

each witness was bolstered by the testimony of other witnesses concerning similar

offenses. The failure to sever under these circumstances invited the jury to infer the

appellant’s guilt from a perceived propensity to commit armed robbery. Accordingly,

we hold that the erroneous failure to sever the offenses affirmatively appears to have

affected the verdicts of conviction and that new trials are required to ensure that these

verdicts were not the result of unfair prejudice.

CONCLUSION

To summarize, we hold that a trial court’s decision to deny a severance of

offenses is to be reviewed for an abuse of discretion. We also hold that the trial court

in this case abused its discretion in denying the appellant’s motion to sever because

the robberies did not share a distinct or unique modus operandi. Further, this abuse

of discretion affirmatively appears to have affected the outcome of the trial. 

Therefore, the appellant’s convictions and sentences are vacated, and this case is

remanded to the trial court for new trials consistent with this opinion. 

Costs are assessed to the State of Tennessee.

___________________________

William M. Barker, Justice

CONCUR:

Anderson, C.J.,

Drowota, Birch, J.J.

Byers, S.J.