# FILED

November 1, 1999 Cecil Crowson, Jr. Appellate Cou rt 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: Willi am J. Brown Paul G. Summers Nashville, Tennessee Attorney General & Repor ter Michael E. Moore Solicitor General Elizabeth T. Ryan Assistant Attorney General Nashville, Tennessee



# OPINI ON

AFFIRMED IN PART, REVERSED IN PART, AND REMANDED BARKER, J.

In this case we consider the proper standard of appellate r eview of a trial court’s denial of a motion to sev er offenses under Tennessee Rule of Crimi nal Procedu re 14(b) (1). Fo r the reasons se t forth below, w

e hold th at a deni al of a severance will on ly be reversed for an abuse of discretion. We also hold that the tri al1 The first coun t all eged that t he appellant robbed a conveni ence store on November 29, 1995 , at 8:00 p.m. The second count alleged t hat ten day s later on December 9, 1995, the appel lant robbe d a video r ental store at

7:10 p. m. Counts th ree and fo ur of t he indi ctment al leged r obberi es 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 denyi ng a severance because the methods used to commit the offenses were not s o materially distinc

t or unique as to rise t

o an inference of identity. Because we find that this abuse of discretion was not harmless, the decision of the Court of Cri minal Appeals is rever sed, and this case is remanded to the trial court for new trials.

BACKGROUND

On January 17, 1996, a Bradle y County grand jur

y returned an indictment charging t he appel lant, Don ald Ray Shi rley, with f our coun ts of arm ed robbe ry. 1 

## Shortly thereafter, the appel lant moved to have the offenses sev ered and tried separately pursuant to R ule of Criminal Procedure 14(b)(1). During the hea ring on the motion to sev

er, the State

argued that

the offenses w

ere parts of a

common scheme or plan because the similar ities of the offenses revealed that a distinctive desig n was employed. In response, the appellant argued that althou gh the offenses were similar, the differences in the offenses were s uch that no inference of identity could be made. After taking the matter under consideration, the trial court den ied the appellant’s motion without stating any of its findings of fact or co nclusions of law on the rec ord.

Following a tw

o-day trial, a jury

found the appellant guilty of three of the four counts o f armed robbery. He was senten ced to ser ve concurr ent sent ences of twelve years for each of the three offenses and w as fined a total of sixty- thousand dollars. On appeal, the Court of Criminal Appeals affirmed the appellant’s conv ictions and sentences, and in addressing the standard of appe llate review, the intermediate court held that a denial of a severanc e was to be review

ed for an abuse of discretion. That court also held that the tri al court acted within its discretion in deny ing 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 decisio n in Bruce and list ed the cir

cumstances under which conso lidation of offe nses w as gen erally proper :

(1) where the offenses ch arged are similar, re late d, or connected , or (2) a re of the sa me or similar

character or

class or (3)involv

e or arose out

of the same or related or connected acts, occurr ences, transact ions, seri es 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 i n the sa me 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 wi ll be competent and admissible or required in their prosecution, and if n ot joined for trial the re petitio n or re prod uctio n of s ubs tantia lly the sa me testim o ny willbe required on eac h trial. See 378 S.W.2d at 759-60. I n each of these ci rcumstances, “ther e is some connecting l ink between t he 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 rev iewed for an abuse of discretion. Howev er, we hold that the tri al court applied an incorr ect legal standard and therefore abused its di scretion in finding that th e offenses were parts of a common scheme or plan.

STANDARD OF APPELL ATE REVIEW

The proper standard by w hich to review a deni al of a motion to sever offenses under the Rules of Criminal P rocedure is an issue of first impression for this Court

. Prior to the adoption of the Rule s, 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 tri al courts to consolidate s everal offenses in a single trial w as very broad, and although such discretion w as not absolute, th is Court us ually only required that the cons olidated offens

es contain s

ome “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 Co urt would reverse a conviction for improper consolidation of off enses, but such a reversal was usually limited to circumstances i n which the offenses were ei ther wholly unrel ated 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 Jul y 13, 1978, however, the discr

etion of the trial courts to c onsolidate or sever offenses has been3 Altho ugh Rule 8(a) p rovid es fo r ma nda tory join der in thes e 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. Cri m. P. 14(b)(2). However, since the decisi on to grant a severance from a mandatory joinder i s governed by specific criter ia, t he trial court’s discretion i s not as broad as it was prior to the adopt ion of th e Rules of Criminal Procedur

e.

4 Since no provi sion in t he Rules all ows for consoli dation of wholly unrelatedoffenses that do not even share a simil arity of conduct, i

t foll ows that the

trial court has no di scretion t o order a consol idati on of those offens es. Cf. Bruce , 213 Te nn. at 669 , 378 S.W .2d at 759 (holding re versible er ror 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. Cr im. App. 1990) ( “It i s withi n the tri al 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 . 198 2) (“T he iss ue of seve ranc e or jo inder of off ens es is a lso a m atter whic h is addres sed to the sound discretion of the trial judg e.”).

6 See, e.g. , State v. McKnight , 900 S.W .2d 3 6, 50 (Te nn. C rim . App . 199 4) (“W hile se vera nce is ordinari ly a matter

which rests wi

thin t he sound discret ion of th e trial court, t hat general rule i s 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 o rdinari ly a matter which rests wi

thin t he sound discret ion of th e 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. Cr im. App. 1982) ( “Likewise, the matter of se verance of offenses under R ule 14(b)(1) is not solely withi n the discretion of the trial court.”).

7 In at l east one case, t he intermediat e court stat

ed that sever

ance issues may not be wi thin t he 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 (concl uding that “[i] n our view, the tri al court a cted with in the boundaries of 

## 4 more strictly gov

erned. For example, consol idation of multiple offenses in a sing le trial is now mandatory—and ther efore 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 s uch case a defendant has an absolute ri ght 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 consolidat e 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 offense s, various panels of the Court of Criminal Appeals have debated whether this decision under Rule 14(b)(1) is still within the sound discr

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

## Therefore, a uniform standard of revi ew has not been used or dev eloped. 7its di scretion i n denying the motion to sever ”). I n 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 consolidat

e these types of offenses i s virtu ally eliminated. 

## 5 To clarify the law in this area, we hold that dec isions to consolidate or sever offenses pursuant to Rules 8(b) and 14(b)(1) are to be rev iewed for an abuse of discretion. Reading R ules 8(b) and 14(b)(1) t ogether, 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 s cheme 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 consolidat e offenses in that one circumstance, it is logical that the t rial court’s decisi on 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 fa st rule.” See Ballard v. Herzke , 924 S.W.2d 652, 661 (Tenn. 1996). The decision of a tri al 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 cour t’s refusal to sever offenses will be revers

ed only when the “cour t applied an incorrect legal standard, or reached a decision whic h 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 hearin g on the severance iss ue, the court did not make any findings of fact or conclusions of law on the record. Therefore, we have examined the tr anscript of the severance hear ing in its totality

to determine whether the trial cour

t abused its discretion i n denying the defendant’s motion to sever the offenses. After closely ex amining 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 c

ourt for new trials on ea ch of the offenses.

The “primary inquir

y into whether a sev

erance should have been gr anted under Rule 14 is whether the ev idence of one crime would be admi ssible in the trial of the other if the two counts of indictment had been severed. ” State v. Burchfield , 664 S.W.2d 284, 286 (T enn. 1984). To ensure that a defenda nt receives a fair trial, Tennessee Rule of Evidence 404(b) excludes evidence of “other crimes, wrongs , or acts” committed by the defendant when off ered only to show the defendant’s propensity to commit those “ crimes, wrongs, or

acts.” However, when offenses alleged to be parts of a common sch eme or plan are otherwis e relevant to a material issue at trial, then Rul e 404 will not bar thei r admissibility i nto 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 ty pes of common scheme or plan evidence: (1) offense s 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 conspi racy; and (3) offenses that ar e 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 thi s 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 o nly category int o which these offenses could fall.

The most common basis for offering evi dence of a distinctive desi gn is to establish the identity o

f 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 o f the of fender was the cen tral issue at trial, a nd there fore, if a distinc tive design could be shown, then evidence of offenses constituting a common scheme or plan would be relevant . However, before multi ple offenses may be said to evi nce a distinct ive design, the “mod us opera ndi empl oyed must be so uniqu e and dist inctive9 See also Bunch , 605 S.W .2d at 230 (stating tha t before o ffense s ma y be said to c onstitute signature cr

imes, “the modus operandi of the othe r crim e and of the crim e on t rial m ust b e sub stan tially ident ical 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 or iginal).

10 Although t he robberies wer e committed with a bl ack pistol , there was no agreement on the kind of pistolused. In t he November 29 robbery, the wit ness stated t hat she thought the gun was a bb gun, although she was no t sure. I n the December 9 robbery,one witness def initely t hought the gun was a bb gun , but th e witn ess of the first ro bbe ry on D ece mb er 10 was em pha tic tha t the g un w as an auto ma 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 r

obbery was of a co nvenience stor e on November 29, 1995, at 8:00 p.m. The second robbery was of

a video rent

al store t

en days lat

er on December 9 at 7:10 p. m. The last two ro bberies were also o f con venie nce store s on D ece mb 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, 24 5 (Tenn. 1986). 9 

## Although the offenses need not be identic al in every respec

t, Bunch v. State , 605 S.W.2d 227, 231 (T enn. 1980), the methods used in committing the o ffenses must have “such unusual parti cularities that reasonabl e men can conclude that it wo uld not likely be employed by different persons.” See Harris v. State , 189 Tenn. 635, 644, 227 S.W.2d 8, 11 (Te nn. 1950). Only when the method used to commit the crimes is so unique as to be like a s ignature can the inference of identity properly ari se.

The State has argued in this case that the similarities in the off enses are such that a distinctive desi gn may be inferred. We agree that the offenses in this case do share a nu mber of similarit ies. For exa mple, al l four rob beries were committ ed by a person wearing a blac

k ski mask with a bla

ck gun, 10 

## the robberies occurred w ithin 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 offe nses 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 thi s 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 arme d robbery is simply not so unusual that reasonable people would conc lude 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 r equest that the cash regi ster drawer be placed o n the counter12 The Court of Criminal Appeals notes t hat in t he one case where the of fender did not

request that the c ash draw er be place d on t he co unte r, the w itnes s had alrea dy don e so. How ever , we fin d it signifi cant that before the witness of the seco nd robbery on December 10 placed the cash drawer on the counter, t he offender wal ked into t he store to the counter, cocked his gun, and tol d the wit ness to open the regist

er. The wit ness testi fied that the offender

did not r

equest that

the drawer t

o be placed on t he counter when he demanded that she open the regi ster, although the of fender had so request ed in all of the other of

fenses. This witness placed t he drawer on the co unter of her own accord. It

simply i s 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 similarit ies between the robberies are not particularly unique . . . .” State v. Shirley, No. 0 3C0 1-96 10-C R-0 036 9, slip op. a t 22-2 3 (T enn . Crim

. App. May 27, 1998) . Instead, the i ntermediate cour t beli eved that “

when considered t

ogether, t he 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. Respectf ully , we fail to see how cri mes that do not have a unique method when examined i ndividual ly 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 robber y, the witness stated that

the offender

was wearing a bl ack shirt, and in the second December 10 robber y, the witness testifi ed on cross-examinati on that t he offender was wearing a gray swe atshirt.

15 In addit ion, t he witnesses t o the December 9 robbery of the vi deo rental store test ified that the gloves were t

oo big for the offender, but the wi tness of the seco nd robbery on the next day testi fied that the gloves wer

e not loose f itti ng.

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 outsi de the store.In the ot her cases, the offender escaped on f oot with out any witness es hea ring or se eing a ca r.

In ad dition , the o ffen der in the D ece mb er 9 ro bbe ry bac ked out o f 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 robber y, the offender for

ced his vi ctim to li e on the fl oor whil e he left , but this di d not occur i n any of t he other robberies.

17 In the December 9 robbery , the off ender took off his mask before he drove away whi ch enabled one witness t

o identify him. I n the second robber y on December 10, the of fender removed his mask before he was even out of the stor

e. 

## 8 in three of the robberies does not show a distinctiv

e 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, 76 5 (Tenn. Crim. App. 1981). 13



## Likewise, there are many differences in the robberies w hich demonstrate that the offenses do not share a distinct or unique modus operandi. For example, the testimony a

t the sever

ance hearing

established that the rob ber wore a green army jacket in two of the robber ies and that the offender wore a bl ack shirt and gray sweatshirt in the other two robberies. 14 

## The offender was also described in three cases as wearing bl ack gloves, but the v arious witnesses dis

agreed as to whether the gloves were cloth or leather. 15 

## Further, the method of escape w as 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 commiss ions of the robberies, we are unabl e to say that a distinct or unique modus operandi w as 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 t he same hair color as the appell ant, and t hat the off ender was about t he same height an d weight a s the app ellant.

19 The term “modus operandi” i s defined as a “ [m]ethod of operating or doing things (M.O.). Term used by poli ce and criminalinvesti gators to describe the particul ar method

of a criminal’s activity. ” Black’s Law Dictionary 1004 (6th ed. 1990) (em phasis added).

20 Because the re are no findi ngs of fact or concl usions of

law fr om the tri al cour

t in the record,we cannot be absolut

ely cer tain of the trial

court’s basis for its decisi on.



## 9 At the severance hearing , the State introduced evide nce in an attempt to show that the appellant was the person who committed all of the robb eries. 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 appell ant shared the same physical characteristics as the offender. 18 

## However, th e trial cou rt must lo ok for a d istinctive method used to commit the crimes and not simply for evidence tendi ng to show that the defendant was the offender. By it s very definition, a modus operandi is not revealed merely by

evidence showing that the defendant committed the crimes s ought 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 ther e was evidence that a defendant committed both crimes, but w hether there was a uniq ue method used in committing the crimes”). As such, to the extent that the trial court relied on this ev

idence to find a distinctive design , it erred in doing so.

We hold that the trial court abused its di scretion in refusing to s ever the four armed robberies. The trial court seems to have allow ed consolidation of the offenses based on ly upon

the simi lariti es in th e offenses without regar

d to the p resence

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 off enses.

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 w hether that abuse of discretion is reversible err

or. Tennessee Rule of Criminal Procedure 52 states that no conv iction is to be re versed on appeal “e xcept for errors which affirm atively app ear to have21 The sole eye-wi tness to t he second robbery on December 10 could not positively ident ify the appellant

as the offender

at tri al, nor co uld she iden tify the appell ant in t he line- up. The sole e yewitn ess of the first D ece mb er 10 robb ery did ident ify the a ppe llant a t the tr ial. However, she coul d not posit ively identi fy the app ellant as the offender

earli er at a l ine-up, an d she described hersel

f as “realbad at noti cing detai ls.” At the li ne-up, she i dentifi ed two people as the possible offender. There were three witnesses to t he December 9 robbery. One of the wit ness from the December 9 robbery admit

ted that she was hesitant about her i dentifi cation of the appell ant as the off ender, but she test ifi ed that “he r instin cts” t old he r tha

t the appel lant

“was t he one. ” A seco nd wit ness coul d not make an identification because it was too dark to see the offender. The third witness did make a pos itive identi ficati on of the appel lant fr om a photographic l ine-up. Finally, the

sole wit ness at the November 29 robber y did make a posit ive iden tifi cation of the app ellant as th e off end er alth oug h she was certa in the offe nde r had frec kles arou nd his eyes. It is uncontrovert

ed that t he appellant

has no freckles on h is face.

22 The sole eye-wi

tness to t he second robbery on December 10 original ly st ated that

the offender wore a gray sweat

shirt. By the t ime of tri al, her t estimony changed t

o identify the of

fender as weari ng 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 o ffen der in a dre am . At the time of his arr

est less t han thirt

y minutes aft

er this r obbery, the appellant was arrested wear ing a blue sweats hirt. The sole eye-wi

tness to t he first

robbery on December 10 ori ginally tol d the poli ce investi gator that the offender’s hair was “st raight, not curly.” By t he time of tr ial, her testi mony had changed so that the o ffen der’s hair w as “k ind of wavy, ” a de scrip tion w hich mo re ac cura tely de scrib ed th e app ellant ’s hair at tha t time . In ad dition , this w itnes s iden tified th e gre en ja cke t at trial, but w ithin a n hou r of th e rob bery, she co uld not iden tify the color of th e jacke t. The sole-eyewitness to t he November 29 robbery or iginal ly i dentifi ed 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 addit ion, al l of the State’s wi tnesses state d that t he jacket or shi rt worn by the offender

was zipped or b uttoned. However, the j acket the pol ice found i n the appell ant’s car co uld not be z ipped 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 proporti on to the degree of the margin by w hich the proof exceeds the standa rd required to convi ct, 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 of fense, but it convicted the appellant of the remaining counts.

Although the Court of Crimi nal Appeals held that the evi dence was sufficient to sustain the appellant’s conv iction, the evidence ag ainst him was clearl y not

overwhelming . For ex

ample, mo

st of the eye-witnesse

s could not positively

identif y the appellant as the offender, 21 

## and much of the trial testimony was inconsistent w

ith stateme nts given im mediate ly after th e robbery. 22 

## It is clear that the cr edibility of the

## 11

each witness was bol stered by the testimony of other witnesses concern ing similar offenses. The failure to sever under these circumstances inv ited the jury to infer the appella nt’s guilt from a pe rceived pr opensit y to commi t armed ro bbery. Acc ordingly, we hold tha t the erro neous f ailure to sever the o ffense s affirm atively app ears to ha ve 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 decis ion to deny a severance of offenses is to be reviewed for an abuse of discretion. W e 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, th is abuse of discretion affirmatively appears to have affected the outcome of the tr ial. Therefore, the appellant’s convictions and senten ces are vacated, and this case is remanded to the trial court for new trials consiste nt with this opinion.

Costs are assessed to the St ate of Tennessee.

___________________________ William M. Barker, Justice CONCUR: Anderson, C.J., Drowota, Birch, J.J. Byers, S.J.