     IN THE SUPREME COURT OF TENNESSEE

                   AT NASHVILLE                        FILED
                                                       November 1, 1999
STATE OF TENNESSEE,                 )   FOR
PUBLICATION                                           Cecil Crowson, Jr.
                                    )                Appellate Court Clerk
    Appellee,                       )   FILED:
NOVEMBER 1, 1999
                                    )
v.                                  )   DAVIDSON CRIMINAL
                                    )
DONALD TERRY MOORE,                 )   HON. ANN LACY JOHNS,
                                    )   JUDGE
      Appellant.                    )
                                    )   No. 01S01-9812-CR-00220


For the Appellant:                      For the Appellee:
Charles R. Ray                          Paul G. Summers
Nashville, Tennessee                    Attorney General & Reporter
Jeffery S. Frensley                     Michael E. Moore
Nashville, Tennessee                    Solicitor General
                                        Elizabeth T. Ryan
                                        Assistant Attorney General
                                        Nashville, Tennessee




                                  OPINION




AFFIRMED                                                         BARKER, J.
         We granted the appeal in this case to address the proper application of

Tennessee Rule of Criminal Procedure 14(b)(1), which is used to sever criminal

offenses. For the reasons set forth below, we hold that the Court of Criminal Appeals
erred in affirming the trial court’s denial of appellant’s motion to sever one count of

child rape based upon a finding that the offense was part of a common scheme or

plan. However, we also hold that the error is harmless because the appellant was
acquitted on two of the three counts of child rape, and the evidence is entirely

sufficient to support the appellant’s conviction on the remaining count. Accordingly,

the judgment of the Court of Criminal Appeals is affirmed.


                                                 BACKGROUND



         On May 24, 1994, a Davidson County grand jury returned an eleven count

indictment against Donald Terry Moore alleging, among other things, three separate

counts of the rape of his stepdaughter occurring during August and November of

1993. Pursuant to Tennessee Rule of Criminal Procedure 14(b)(1), the appellant

moved to have the alleged August offense severed from the remainder of the

indictment and tried separately. The trial court denied the motion, finding that both the

August and November child rape offenses were parts of a common scheme or plan.



         The first two counts of child rape were based upon events occurring during the

early morning of November 27, 1993. While his eleven-year-old stepdaughter, L.G.,1

was sleeping, the appellant entered her bedroom and began choking her. The
appellant then took her from her bed and carried her to the master bedroom while still

choking her and telling her to be quiet. Later in the bizarre and tragic events of that

evening,2 the appellant took L.G. to the kitchen, and while at the top of the stairs
leading to the basement, he allegedly unzipped L.G.’s pants and digitally penetrated




    1
      It is the policy o f this Cour t not to identify m inor children involved in sexua l abuse c ases b y nam e.
Instead , we will identify th e minor victim in this c ase on ly by her in itials.

    2
      The suffic ienc y of th e evid enc e on t he ot her c oun ts of th e indic tme nt is n ot at is sue befo re this
Court. Therefore, we will not fully recite these facts except as necessary to discuss the issues raised
below related to the State’s theory of a common scheme or plan regarding child rape.

                                                            2
her.3 From the kitchen, the appellant took L.G. to the dining room, ordered her to get
down on her knees, and forced her to perform fellatio.



         The third count of child rape was based on events allegedly occurring during

the previous August. Sometime during the night of August 8, 1993, the appellant

allegedly entered L.G.’s bedroom, placed his hand over her mouth, and told her to be
quiet. The appellant was said to have then removed her shorts and underwear, and

while touching her breasts with his hands, he “put his tongue in [her] private.”4 The
State consolidated for trial this August count of child rape with the November offenses
under Rule of Criminal Procedure 8(b).



         When the appellant moved to sever the August offense from the remainder of
the indictment under Rule 14(b)(1), the State argued that the August and November

child rape offenses were parts of a common scheme or plan because the methods

used revealed a distinctive design and were similar enough to constitute signature

crimes. The trial court denied the appellant’s motion to sever. Following a three day

jury trial, the jury convicted the appellant of the count alleging that the appellant forced

L.G. to perform fellatio, but it found the appellant not guilty of the remaining two counts

of child rape.



         The Court of Criminal Appeals affirmed the appellant’s conviction and held that

joinder of the counts was proper because (1) “the similarities in the offenses [were]

sufficient to establish a distinctive design,” and (2) the evidence of the first offense
was admissible upon the trial of the other offense. The intermediate court also held

that even if joinder of the August and November offenses had been improper, the

error was harmless.


                               STANDARD OF APPELLATE REVIEW




   3
       We use the term “allegedly” because the jury found the appellant not guilty on this count of the
indictme nt.

   4
       The jury also foun d the app ellant not gu ilty on this cou nt of the indic tment.

                                                          3
       Since the adoption of the Rules of Criminal Procedure in 1978, there has been

considerable debate in the lower courts as to the standard of appellate review from a

denial severance under Rule 14(b)(1). To clarify the law in this area, we have held in
State v. Shirley, __ S.W.3d __ (Tenn. 1999) (filed simultaneously with the opinion in

this case), that a denial of a motion to sever offenses will be reviewed for an abuse of

discretion.


                                      SEVERANCE



       In addressing the severance issue in this case, the trial court concluded that the

August and November offenses constituted a common scheme or plan because the

offenses were evidence of “an ongoing episode . . . [or] a serial situation.” Although
the Court of Criminal Appeals disagreed with that analysis, it held that both the August

and November offenses nevertheless constituted a common scheme or plan because

“the similarities in the offenses [were] sufficient to establish a distinctive design.” We

disagree.



       In State v. Burchfield, 664 S.W.2d 284, 286 (Tenn. 1984), this Court stated that

“[t]he 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.” Burchfield illustrates that at its most

basic level, a question of severance under Rule 14(b)(1) is really a question of

evidentiary relevance. When the other offenses in a common scheme or plan are not
relevant to a material issue at trial, then a severance should be granted in order to

ensure a fair trial by insulating the defendant from evidence of other unrelated

offenses. See id. at 287. Otherwise, admission of the other offenses invites the trier

of fact to improperly infer that the defendant has a propensity to commit crimes.



       To ensure that the 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, Rule 404(b) will not bar evidence of other

                                             4
offenses when offered to prove some other issue relevant at trial. See Bunch v. State,

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



         Typically, offenses that are parts of a common scheme or plan are offered by

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

511, 514 (Tenn. 1996) (stating that common scheme or plan evidence “is often
misunderstood” and is most often used “when the identity of the defendant is in issue”

(emphasis omitted)); State v. Parton, 694 S.W.2d 299, 303 (Tenn. 1985). Indeed,

identity is usually the only relevant issue supporting admission of other offenses when
the theory of the common scheme or plan is grounded upon a signature crime. See,

e.g., State v. Hoyt, 928 S.W.2d 935, 943 (Tenn. Crim. App. 1995). 5


         Although the State argues that the August and November offenses were so

similar as to constitute signature crimes, the State seems to have overlooked that the

identity of the perpetrator has never been at issue. Both L.G. and Mrs. Moore

identified the appellant as the perpetrator of the November offenses, and at no point

has the appellant argued that the November offenses were committed by someone

else. We therefore hold that the August offense would not have been admissible in

the trial of the November offenses because it was evidence of other “crimes, wrongs,

or acts” and was not relevant for any purpose other than to show the appellant’s
propensity to commit certain acts. See Tenn. R. Evid. 404(b).6 Consequently, the



    5
       At least one panel of the Court of Criminal Appeals has noted the growing trend to treat common
schem e or plan e vidence as releva nt mere ly becau se it is evide nce of a c omm on sch eme o r plan. We
agree with the analysis in State v. Hallock that
         the mere existence of a common scheme or plan is not a proper justification for admitting
         evidence of other crimes. Rather, admission of evidence of other crimes which tends to
         show a common scheme or plan is proper to show identity, guilty knowledge, intent, motive,
         to rebut a defense of mistake or accident, or to establish some other relevant issue. Unless
         expres sly tied to a re levant iss ue, evide nce of a common scheme or plan can only serve
         to encourage the jury to conclude that since the defendant committed the other crime, he
         also com mitted the crime c harged .
See 875 S.W.2d at 285, 292 (T enn. Crim. App. 1993). Although crimes having a distinctive design are
usually only relevant to establish the identity of the offender, we do not necessarily agree with the
statement of the Hoyt cour t that c rime s hav ing a d istinc tive d esig n “m ust b e pro bativ e of th e def end ant’s
identity.” See 928 S.W.2d at 943.

    6
      Further, the State does not offer any other relevant ground supporting admission of the August
offense. The State simply argues that “because the offenses against the victim constituted a common
scheme or plan, evidence of each offense addressed an issue relevant to the other offense and was
therefore admiss ible in the trial of the o ther.” Brief for A ppellee at 1 5. This co nclusion is misplac ed; a
proper find ing of a co mmo n sche me or p lan does not a fortiori compel the conclusion that all the
offenses in the common scheme or plan are admissible. Each offense alleged to be part of the common
scheme or plan must be relevant to some specific issue at trial, such as identity.

                                                           5
trial court erred in not granting the appellant’s motion to sever the August offense from

the remainder of the indictment.



        Even if the identity of the offender were a material issue at trial, we are not

convinced that the August and November offenses were so similar as to allow an

inference of identity from the presence of a common scheme or plan. According to
Tennessee Rule of Criminal Procedure 14(b)(1), a defendant is entitled to a severance

of multiple offenses as a matter of right “unless the offenses are part of a common

scheme or plan and the evidence of one would be admissible upon the trial of the
others.”7 In Tennessee, there are three categories 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 relied upon the distinctive design of

the August and November offenses to establish that they were parts of a common

scheme or plan. In doing so, the intermediate court expressly rejected the categories

of “larger conspiracy” or “same transaction.” State v. Moore, No. 01C01-9702-CR-

00061, slip op. at 10 (Tenn. Crim. App. April 9, 1998). The State concedes, in this
Court, that the only possible ground for a common scheme or plan in this case is that

of distinctive design or signature crime. See Brief for Appellee at 11. While we agree

that the August and November offenses are certainly not part of the same transaction
or larger conspiracy, we disagree that the offenses are parts of a distinctive design or

constitute signature crimes.




    7
      Although the Rules of Criminal Procedure do not define when certain offenses may constitute a
“common scheme or plan” such that permissive joinder of offenses is appropriate, the phrase “common
scheme or plan” has long been used in the law of evidence. There is no evidence that the Rules
intended a deviation from the evidentiary meaning of the phrase, nor does it otherwise appear that the
Rules e ven co ntemp late a differen t mean ing. There fore, we a re persu aded tha t the Rules intend that a
common scheme or plan for severance purposes is the same as a common scheme or plan for
evidentia ry purpo ses. Accord State v. Hoyt, 928 S.W .2d 935, 9 43 (Ten n. Crim. A pp. 1995 ); State v.
Hallock, 875 S.W .2d 285, 2 89 (Ten n. Crim. A pp. 1993 ); State v. Peacock, 638 S.W.2d 837, 839-40
(Tenn. Crim. App. 1982).

                                                      6
         Before multiple offenses may be said to reveal a distinctive design, and

therefore give rise to an inference of identity, the “modus operandi employed must be

so unique and distinctive as to be like a signature.” State v. Carter, 714 S.W.2d 241,

245 (Tenn. 1986). While this is not to say that the offenses must 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). In other words, “the

modus operandi of the other crime and of the crime on trial must be substantially
identical and must be so unique that proof that the defendant committed the other

offense fairly tends to establish that he also committed the offense with which he is

charged.” Bunch, 605 S.W.2d at 230 (emphasis in original).



         It is important to emphasize that the “test [for finding a common scheme or

plan] is not whether there was evidence that a defendant committed both crimes, but

whether there was a unique method used in committing the crimes.” Young v. State,

566 S.W.2d 895, 898 (Tenn. Crim. App. 1978) (emphasis added). Although some

cases have suggested that multiple offenses which are “strikingly similar” may

constitute parts of a common scheme or plan, see White v. State, 533 S.W.2d 735,

741 (Tenn. Crim. App. 1975), a proper analysis of this issue must be accompanied by
more than a mere weighing of the similarities and differences of the various offenses.

A common scheme or plan is not found merely because the similarities of the offenses

outweigh any differences. 8 Rather, the trial court must find that a distinct design or
unique method was used in committing the offenses before an inference of identity

may properly arise.



         In our review of the record in this case, we conclude that the offenses were not

committed with “such unusual particularities” as to indicate the presence of a distinct


    8
        The Cou rt of C rimin al Ap pea ls use d this stan dard of we ighing simila rities a nd dif feren ces in
affirming the denial of se veranc e. The S tate’s brief also conclud es that this a pproac h is corre ct. See
Brief f or Ap pellee at 12 -13. H owe ver, w e belie ve th at a p rope r ana lysis of “dis tinctiv e des ign” e ntails
mor e tha n me rely d ecla ring th at the “sim ilarities far ou tweig h the differe nce s,” an d trial c ourts shou ld
carefully examine whether offenses alleged to constitute signature crimes actually show the operation of
a dist inct m odu s ope rand i.

                                                          7
modus operandi, nor were the offenses so “strikingly” similar that they may be

regarded as the stamp or signature of the appellant. The methods used by the

appellant in the alleged August rape differed substantially from the methods he used
the following November. In fact, all of the events occurring on November 27, 1993 are

so extraordinary and utterly disgusting that no pattern can be discerned that would

logically or reasonably coincide with the earlier August offense.9


         The “mere fact that a defendant has committed a series of . . . crimes does not

mean that they are part of a common scheme or plan although the offenses may be of
the ‘same or similar character.’” State v. Peacock, 638 S.W.2d 837, 840 (Tenn. Crim.

App. 1982). The modus operandi in this case, if there is one at all, is not so unique

and distinctive as to allow one to conclude that if the appellant committed the alleged
August offense, then he also must have committed the November offenses as well.

Therefore, the lower courts erred in finding that the August and November offenses

were parts of a common scheme or plan based on a distinctive design.



         Because the State was unable to show a material issue at trial to which

evidence of the August offense would be relevant, we hold that the trial court abused

its discretion in denying the appellant’s motion to sever the offenses. A holding of

abuse of discretion reflects that the trial court’s logic and reasoning was improper
when viewed in light of the factual circumstances and relevant legal principles involved

in a particular case. See, e.g., State v. Shuck, 953 S.W.2d 662, 669 (Tenn. 1997);

Ballard v. Herzke, 924 S.W.2d 652, 661 (Tenn. 1996). In considering whether


    9
        For example, after a night of drinking and playing cards on November 26, 1993, the appellant
entered L.G.’s bedroom, took her from her bed, and carried her to the master bedroom while choking her
and telling her to be quiet. Ms. Moore, who was sleeping on the living room couch, was awakened by a
noise coming from the master bedroom, and she went to the bedroom to investigate. When she entered
the bedroom, the appellant hit her in the forehead with a hammer knocking her to the floor. When Ms.
Moo re reg ained cons ciou sne ss, th e app ellant force d her and L .G. in to the base men t of the hous e, wh ile
continuing to sporadically hit Ms. Moore with the hammer. Once in the basement, the appellant used an
elec trical c ord to tie Ms . Moo re to a pole. The appe llant th en to ok L. G. up stairs to the kitch en, a nd w hile
at the top of the stairs leading to the basement, the appellant allegedly unzipped L.G.’s pants and
penetrated her digitally. The appellant next took L.G. to the dining room, ordered her to get down on her
knees, and forced her to perform fellatio. Later in the evening, the appellant forced both Ms. Moore and
L.G. into a corner in the dining room where he urinated on them and poured beer in their hair. While he
was d oing this, the appellant w as mu ttering to him self that the w hole affair w as “craz y.”
          By way of contrast, none of these bizarre events were alleged to have occurred during the
previous August. The appellant did not use a hammer or an electrical cord to facilitate the alleged
August rape of his stepdaughter. Further, the appellant did not urinate on his stepdaughter after he
allege dly ra ped her in Aug ust. If th e Sta te alle ged that th ese pecu liar ev ents , or so met hing s ubs tantia lly
similar to them, had also occurred the previous August, then a finding of a signature crime may have
been appropriate.

                                                           8
evidence of the August offense was admissible in the trial of the November offenses,

the decision of the trial court was contrary to established legal principles because the

identity of the offender was never at issue and the evidence was not otherwise
relevant. Further, the trial court’s conclusion that the August and November offenses

were parts of a common scheme or plan was not supported by proper logic and

reason because the August offense was not so unusual or distinctive as to constitute
a signature crime, especially when compared to the bizarre circumstances

surrounding the November offenses.



                                 HARMLESS ERROR



       Since we have found that it was error not to sever the alleged August offense
from the remainder of the indictment, we must now examine the record as a whole to

decide whether that error more probably than not affected the judgment. See Tenn.

R. Crim. P. 52(a); see also Tenn. R. App. P. 36(b). Because the question of whether

to grant a severance under Tennessee Rule of Criminal Procedure 14(b)(1) is

primarily an evidentiary question, see Burchfield, 664 S.W.2d at 286, the effect of a

denial of that right is weighed by the same standard as other non-constitutional

evidentiary errors: the defendant must show that the error probably affected the

judgment before reversal is appropriate. Cf. State v. Neal, 810 S.W.2d 131, 138
(Tenn. 1991). We hold that the appellant in this case has failed to meet that burden,

and therefore, the denial of severance was harmless error.



      The appellant contends that through joinder of the offenses, “the jury got the

opportunity to consider the [appellant’s] propensity to commit sex crimes, and even

though he was acquitted on [the August offense], it prejudiced him in Count [two] and
brought about his conviction on that count.” It is undoubtedly true that under some

circumstances there is a danger that a jury may use evidence of other similar acts to

conclude that a defendant has a propensity to commit certain types of crimes. This is

the very rationale behind Tennessee Rule of Evidence 404(b).




                                            9
        However, it is equally true that “the line between harmless and prejudicial error

is in direct proportion to the degree . . . by which proof exceeds the standard required

to convict . . . .” Delk v. State, 590 S.W.2d 435, 442 (Tenn. 1979). In this case, the

testimony and physical evidence are more than sufficient to allow a rational jury to

conclude beyond a reasonable doubt that the appellant forced his stepdaughter to

perform fellatio.10 We are further persuaded that the jury did not consider the August
offense as propensity evidence because the jury not only acquitted the appellant on

this count, but it also acquitted him of one of the other November offenses. Therefore,

because the evidence presented was more than sufficient for conviction and because
the appellant was acquitted of the August offense and one of the November offenses,

we find the error did not affect the judgment and was harmless.




   10
       L.G. testified herself to the events on November 27, and this testimony was corroborated by two
other witnesses. Further, mouth and throat swabs were taken from L.G. a short time after the events of
Nove mber 2 7, and the se sam ples con firmed tha t seme n had be en pres ent in her m outh.

                                                  10
                                       CONCLUSION



        To summarize, we hold that the trial court erred in not severing count eleven
from the remainder of the indictment pursuant to Tennessee Rule of Criminal

Procedure 14(b)(1). Not only did the method used in the alleged August offense fail to

reveal a common scheme or plan when viewed with the remaining counts of the
indictment, but the August offense would also have been inadmissible upon the trial of

the other counts. However, because the jury acquitted the appellant of two of the

three counts of child rape and because the evidence supporting the remaining count is
more than sufficient to support a verdict of guilty beyond a reasonable doubt, we hold

that the error is harmless. Therefore, the appellant’s conviction and sentence is

affirmed.


        C ts o this a ea areas ss to th a ellant, D aldTerryM re, fo w e cu sh issueif ne ssary
         os f        pp l     se ed e pp           on        oo r hich xe tion all       ce .




                                                    ___________________________
                                                    W MB
                                                      illiam . arker, Justice

CNU:
OCR
Anderson, C.J.,
Drow Birch, Holder, J.J.
    ota,




                                              11
