Of This Case Are Analogous To The Facts In State v. Hoyt, 928 S.W.2D 935 (Tenn.
This text of Of This Case Are Analogous To The Facts In State v. Hoyt, 928 S.W.2D 935 (Tenn. (Of This Case Are Analogous To The Facts In State v. Hoyt, 928 S.W.2D 935 (Tenn.) is published on Counsel Stack Legal Research, covering Court of Criminal Appeals of Tennessee primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.
Opinion
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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