            IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                              AT JACKSON
                        OCTOBER SESSION, 1997

                                                                         FILED
STATE OF TENNESSEE,                 )                                    January 13, 1998
                                    )      No. 02C01-9610-CR-00369
       Appellee                     )                             Cecil Crowson, Jr.
                                                                         Appellate C ourt Clerk
                                    )      SHELBY COUNTY
vs.                                 )
                                    )      Hon. Arthur T. Bennett, Judge
DONALD P. SPICER,                   )
                                    )      (Rape of a child; assault)
       Appellant                    )


                                DISSENTING OPINION



       I respectfully dissent. While I concur with the majority in concluding "that the

court below erred in granting the State's motion to consolidate," I find the error

complained of to be of such prejudicial dimensions as to require reversal. The facts

of this case are analogous to the facts in State v. Hoyt, 928 S.W.2d 935 (Tenn.

Crim. App. 1995). In Hoyt, 928 S.W.2d at 945, this court condemned the practice of

joining two open-dated indictments involving two different victims for a single trial.

As in Hoyt, the open-dated indictments in the present case, i.e., “July 1, 1993 to

December 31, 1993" and “March 1, 1994 to March 4, 1994,” permit the State’s

introduction of other unindicted sexual crimes or bad acts by the appellant in its

consolidated case-in-chief upon the trial of the other. See Hoyt, 928 S.W.2d at 945

(citing State v. Rickman, 876 S.W.2d 824, 829 (Tenn. 1994)). “Because there are

two counts involving two different victims, evidence of multiple sexual offenses

would be admissible under each count.” Hoyt, 928 S.W.2d at 945.



       The rule of Hoyt clearly illustrates why these indictments should not have

been consolidated. In the present case, both victims testified to a multitude of

sexual encounters, assaults and penetrations occurring both within the indicted

period and outside the indicted period. It is difficult to believe that L.A.S.’s testimony

that “[it happened] every week” and that “[it happened] more than one time” had no
prejudicial effect upon the jury verdict regarding A.N.S. Likewise, it is also

inconceivable to imagine that A.N.S.’s testimony that “[it happened] [s]o many

[times] I can’t count” had no effect regarding the count involving L.A.S. In other

words, “[t]he ‘taint’ of such evidence introduced under one count would bolster the

second joined offense and vice versa.” Hoyt, 928 S.W.2d at 945. “Failure to sever,

under these circumstances, invite[s] reliance upon the propensity notion.” Id. at

946. I find that the appellant was unduly prejudiced by the joinder of these offenses.



       For these reasons, I would vacate the conviction for rape of a child and

remand for a new trial.




                                   ____________________________________
                                   DAVID G. HAYES, Judge




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