State of Tennessee v. David Wayne Eady

02/06/2024

IN THE SUPREME COURT OF TENNESSEE

AT NASHVILLE

May 24, 2023 Session1

STATE OF TENNESSEE v. DAVID WAYNE EADY

Appeal by Permission from the Court of Criminal Appeals

Criminal Court for Davidson County

No. 2018-B-952 Cheryl A. Blackburn, Judge

___________________________________

No. M2021-00388-SC-R11-CD

__________________________________

This appeal presents two issues. First, we consider whether the District Attorney General’s

Office should have been disqualified from prosecuting this case because the District

Attorney General previously served as counsel for the accused in a separate case. Second,

we consider the propriety of conducting a single trial for multiple offenses under the theory

that the separate crimes were all parts of a larger, continuing plan. David Wayne Eady was

charged in one indictment with committing multiple robberies in Nashville over the course

of a month. Mr. Eady moved to disqualify the District Attorney General’s Office, primarily

because the District Attorney General had represented him in a criminal matter

approximately thirty years earlier. The prior matter resulted in a conviction that the State

sought to use in this case to qualify Mr. Eady as a repeat violent offender for sentencing

purposes. The trial court denied the motion to disqualify, noting the limited nature of the

District Attorney General’s involvement in this case and the “mandatory nature of the

repeat violent offender statute.” See Tenn. Code Ann. § 40-35-120(g) (2019). Mr. Eady

also moved to sever the offenses, which the trial court denied upon finding that the crimes

were parts of a common scheme or plan and that the evidence of one offense would be

admissible in the trial of the others. See Tenn. R. Crim. P. 14(b)(1). Mr. Eady ultimately

was convicted as charged of eleven counts of aggravated robbery, two of which later were

merged, and one count of attempted aggravated robbery. Upon Mr. Eady’s appeal as of

right, a divided panel of the Court of Criminal Appeals affirmed. State v. Eady, No.

M2021-00388-CCA-R3-CD, 2022 WL 7835823, at *1 (Tenn. Crim. App. Oct. 14, 2022),

perm. app. granted, (Tenn. Jan. 31, 2023). The intermediate appellate court was unanimous

in rejecting the challenge to prosecution of the case by the District Attorney General’s

Office. Id. at *34–35. After noting that there was “no real dispute between the parties that

[the District Attorney General] had an actual conflict of interest disqualifying him from

participating in [Mr. Eady’s] prosecution,” the court seemed to proceed on the assumption

1

We heard oral argument in this case at Tennessee Technological University in Cookeville,

Tennessee, as part of the Tennessee American Legion Boys State S.C.A.L.E.S. (Supreme Court Advancing

Legal Education for Students) project.

that an actual conflict of interest existed but nevertheless held that this conflict did not

require disqualification of the entire office. Id. at *34. In addition, a majority of the court

upheld the denial of a severance. Id. at *28–30. One judge dissented, however, concluding

that the offenses should have been severed because the evidence did not reflect that the

offenses were parts of a larger, continuing plan. Id. at *38–42 (McMullen, J., dissenting

in part). We granted Mr. Eady’s appeal to address both issues. As for the motion to

disqualify, we agree with the State’s argument before this Court that the circumstances do

not establish an actual conflict of interest for the District Attorney General, and we

conclude that the trial court correctly denied the motion to disqualify the District Attorney

General’s Office. As for the motion to sever, we have determined that the record does not

establish that the offenses were parts of a larger, continuing plan. Thus, we conclude that

the trial court erred in denying a severance. However, we find the error harmless as to all

convictions except the one in count eight. Accordingly, we affirm the judgment of the

Court of Criminal Appeals in part, reverse it in part, and remand to the trial court for further

proceedings consistent with this opinion.

Tenn. R. App. P. 11 Appeal by Permission;

Judgment of the Court of Criminal Appeals Affirmed in Part, Reversed in Part;

Case Remanded to the Criminal Court

JEFFREY S. BIVINS, J., delivered the opinion of the Court, in which HOLLY KIRBY, C.J., and

SHARON G. LEE, ROGER A. PAGE, and SARAH K. CAMPBELL, JJ., joined.

Martesha Johnson Moore, District Public Defender; Will Allensworth and Jeffrey A.

DeVasher (on appeal), Jared Mollenkof and Julie Bigsby (at trial), Assistant District Public

Defenders, for the appellant, David Wayne Eady.

Jonathan Skrmetti, Attorney General and Reporter; Andrée Blumstein, Solicitor General;

Richard D. Douglas, Senior Assistant Attorney General; Glenn Funk, District Attorney

General; Megan King and Joey Clifton, Assistant District Attorneys General, for the

appellee, State of Tennessee.

OPINION

I. FACTUAL AND PROCEDURAL BACKGROUND

This case arose from eleven incidents that occurred in various retail businesses in

Nashville over the course of November 2017. During each incident, a seemingly armed

white man whose features were concealed for the most part—alleged to be David Wayne

Eady (“the Defendant”)—entered a business and demanded money or retail items from an

employee. The time of day of the incidents varied from mid-afternoon to shortly after

midnight. The perpetrator appeared to hold the gun mostly in his left hand. The perpetrator

was successful in ten of the incidents, but the proof did not show that he obtained anything

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in the eleventh. Video surveillance captured the incidents and was played for the jury at

trial. To aid our resolution of the severance issue, we will summarize the incidents

chronologically.

Count Twelve: On November 2, 2017, Brenda Wilson was working at a Dollar

General located at 1201 Eighth Avenue South. At approximately 5:45 p.m., a white man

entered the store holding what appeared to be a gun. The man wore a black mask of some

sort and was taller than 5’6” or 5’7”, which was Ms. Wilson’s height. When the man

approached Ms. Wilson at the cash register, she fled. Thus, Ms. Wilson was unable to say

if the man took anything from the store,2 nor was she able to identify him. The man was

not wearing gloves, and latent fingerprints were lifted at the store. Due to the poor quality

of the fingerprints, however, they could not be compared to the Defendant’s fingerprints.

Police investigation revealed that the Defendant’s cell phone communicated with a cell

tower in the general area of the store at 6:26 p.m.3 The Defendant admitted to police that

he was responsible for this attempted robbery.

Count Ten: Three days later, on November 5, 2017, Jonathan Latham was working

at a Walgreens located at 2819 Nolensville Pike. At approximately 3:30 p.m., a white man

entered the store holding what appeared to be a gun in his left hand. The man wore

sunglasses and a dark, “rodeo-pattern-type” bandana over his face, such that Mr. Latham

was unable to identify him. He also wore a “darkish hoody” with the hood pulled up and

gloves. The man demanded money from the register, and Mr. Latham complied. The

Defendant admitted to police that he was responsible for this robbery.

Count Eleven: Four days later, on November 9, 2017, Shino Hussain was working

at a CVS located at 4709 Nolensville Pike. At approximately 3:20 p.m., a man, possibly

white, entered the store holding what appeared to be a gun. He was approximately six feet

tall. The man’s face was covered, and he was wearing a “hooded shirt.” As such, Ms.

Hussain was unable to identify the man. The man handled the gun with both hands. He

demanded money, which Ms. Hussain gave him from the register. The man was not

wearing gloves, and latent fingerprints were lifted at the scene. Due to the poor quality of

the fingerprints, however, they could not be compared to the Defendant’s fingerprints.

Police investigation revealed that the Defendant’s cell phone communicated with cell

2

In December 2017, during the investigation of the offenses, the Defendant gave a statement to

police in which he admitted responsibility for all but one of the incidents. In his statement, the Defendant

indicated that the cash register would not open on this occasion, so he took no money.

3

The Defendant hotly contested this evidence, offering his own expert testimony to attack the

State’s expert testimony with regard to what could be gleaned from the cell phone data in question.

Ultimately, however, there was little dispute as to the fact of communication with the specified towers at

the specified times. In addition to his expert testimony, the Defendant also suggested that because he lived

in the general area of some of the locations, it would be expected for his cell phone to communicate with

some of the towers.

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towers in the general area of the store multiple times from 3:04 p.m. to 3:58 p.m. The

Defendant admitted to police that he was responsible for this robbery.

Counts One and Two: Two days later, on November 11, 2017, Jazlyn Oropeza,

Josianne Hunter, and Beverly Adcock were working at a Walgreens located at 518

Donelson Pike. At approximately 7:00 p.m., a white man entered the store holding what

appeared to be a gun in his left hand. Because the man wore a hoody, sunglasses, and some

type of black face mask, the employees were unable to identify him. Ms. Oropeza

estimated the man to be 5’9” tall and 150 pounds, while Ms. Hunter estimated him to be

just shorter than her 5’11” height. The man demanded and received money from two cash

registers, one manned by Ms. Oropeza4 and the other manned by Ms. Adcock.5 The

Defendant admitted to police that he was responsible for this robbery.

Count Three: Four days later, on November 15, 2017, Timothy Bushong was

working at a Delta Express/Mapco located at 15131 Old Hickory Boulevard. At

approximately 9:45 p.m., a white man entered the store holding what appeared to be a gun.

The man was wearing a hoody, sunglasses, gloves, and a handkerchief or bandana over his

face. Thus, Mr. Bushong could not identify the man. Mr. Bushong estimated the man to

be 5’6” or 5’7” tall. The man demanded cash from the register and ordered Mr. Bushong

to produce additional money by “dropping a tube” from a safe. Mr. Bushong complied.

Police investigation revealed that the Defendant’s cell phone communicated with cell

towers in the general area of the store multiple times between 9:49 p.m. and 9:58 p.m. The

Defendant admitted to police that he was responsible for this robbery.

Count Four: Three days later, on November 18, 2017, Ralph Calhoun was working

at a Delta gas station located at 2601 Murfreesboro Pike. At approximately 5:30 p.m., a

white man entered the store holding what appeared to be a gun in his left hand. The man

was wearing a jacket and a mask. When speaking to police after the incident, Mr. Calhoun

described the man as 5’11” tall and weighing 150 to 200 pounds, but during his trial

testimony he stated the man was 6’2” tall. Mr. Calhoun was unable to identify the man.6

The man demanded money from the cash register and cartons of cigarettes. Mr. Calhoun

complied, after which the perpetrator ordered Mr. Calhoun to lie on the floor and count to

fifty. Police investigation revealed that the Defendant’s cell phone communicated with

cell towers in the general area of the store multiple times between 5:47 p.m. and 5:59 p.m.

4

Ms. Hunter assisted Ms. Oropeza in producing money from the cash register.

5

This incident made up counts one and two of the indictment, the offenses that later were merged

into a single conviction by the Court of Criminal Appeals. See Eady, 2022 WL 7835823, at *36–37.

6

Mr. Calhoun admitted at trial that he identified a customer who came into the store the following

day as potentially being the perpetrator. Mr. Calhoun explained that he was still under stress from the

incident, and the customer was of the same general build as the perpetrator. Mr. Calhoun clarified at trial

that he no longer believed the customer was the perpetrator.

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Police investigation also revealed text messages sent from the Defendant’s cell phone

offering to sell cartons of cigarettes on November 19 and 20. The Defendant admitted to

police that he was responsible for this robbery and that he later sold some of the cigarettes

in various bars.

Count Nine: Two days later, on November 20, 2017, Jason Hamilton was working

in a Twice Daily located at 1330 Vultee Boulevard. At approximately 11:45 p.m., a white

man entered the store and asked for a pack of cigarettes. When Mr. Hamilton turned around

after getting the cigarettes, the man was holding what appeared to be a gun in his left hand.

Because the man was wearing “heavy” winter clothing and a mask over his face, Mr.

Hamilton was unable to identify him. The man demanded money from the register and

from a “tube” from the safe. Mr. Hamilton complied, after which the perpetrator ordered

Mr. Hamilton to lie on the floor. Police investigation revealed that the Defendant’s cell

phone communicated with a cell tower in the general area of the store at 12:01 a.m. on

November 21, 2017. The Defendant admitted to police that he was responsible for this

robbery.

Count Five: Four days later, on November 24, 2017, Raouf Essa was working in a

Delta Express/Mapco located at 440 Harding Place. At approximately 3:20 p.m., a white

man entered the store and demanded money. He was holding what appeared to be a gun

in his left hand. The man stood approximately 5’9” tall and was wearing gloves and a

jacket with his head and face covered. The perpetrator demanded money, and Mr. Essa

produced cash from the register. Mr. Essa identified the Defendant as the perpetrator, both

before trial and at trial.7 Video surveillance footage showed a gold Toyota Camry at the

scene. Police investigation revealed that the Defendant’s cell phone communicated with

cell towers in the general area of the store multiple times between 3:37 p.m. and 4:01 p.m.

The Defendant admitted to police that he was responsible for this robbery. The Defendant

also admitted that the gold Toyota Camry from the surveillance video was his and that

another individual drove him away from the scene after the robbery.

Count Six: The very next day, on November 25, 2017, Tamar Ishak was working in

a Mapco Express located at 3043 Nolensville Pike. Shortly after midnight, a white man

entered the store, selected a bottle of water, and brought it to the counter. At that point, the

man displayed what appeared to be a gun in his left hand and demanded money, which Mr.

Ishak produced from the register. The man was forty to forty-five years old, of medium

height, and wore gloves, a jacket with the hood up, sunglasses, and a mask over his face.

As such, Mr. Ishak was not able to identify the man. Police investigation revealed that the

Defendant’s cell phone communicated with cell towers in the general area of the store

multiple times between 12:31 a.m. and 12:53 a.m. The Defendant admitted to police that

he was responsible for this robbery.

7

Mr. Essa was the only victim who identified the Defendant as the perpetrator.

-5-

Count Eight: One day later, on November 26, 2017, Stella Rice was working in a

Delta Express located at 18 Thompson Lane. At approximately 5:00 p.m., a white man

entered the store, pointed what appeared to be a gun at her, and demanded money. She

initially described the man to police as thirty-five to forty years old, 5’7” tall and 180

pounds. However, she testified at trial that she was 5’7” tall, and he was taller, probably

5’8” tall. The man was wearing a gray hoody, blue jeans, gloves, sunglasses, and a black

mask over his face. Thus, Ms. Rice was unable to identify him. Ms. Rice opened the

register and stepped back, at which point the perpetrator reached into the register and

removed cash. Ms. Rice believed that video surveillance footage depicted the perpetrator

holding the gun in his left hand, but she stated “[i]t was confusing.” Police investigation

revealed that the Defendant’s cell phone communicated with a cell tower in the general

area of the store multiple times between 5:28 p.m. and 5:30 p.m. The Defendant did not

admit responsibility for this robbery, telling police, “I don’t remember doing one on

Thompson Lane.”

Count Seven: Four days later, on November 30, 2017, Nathan Allen was working

in a Mapco located at 5040 Nolensville Pike. At approximately 9:00 p.m., a white man

entered the store and displayed what appeared to be a gun in his left hand. The man was

wearing a jacket with the hood up, sunglasses, and a “colorful” mask or scarf over his face.

The man was approximately 5’9” tall and of about average build. Police investigation

revealed that the Defendant’s cell phone communicated with cell towers in the general area

of the store multiple times between 8:30 p.m. and 9:16 p.m. The Defendant admitted to

police that he was responsible for this robbery.

Police investigating the incidents received a break when video surveillance footage

of the November 24 robbery revealed a gold Toyota Camry at the scene. The footage

showed the driver of the vehicle get out and approach the Delta Express/Mapco store, while

the passenger got out and moved to the driver’s position. The driver soon returned at a

quicker pace and got into the passenger seat, at which point the vehicle pulled away. Two

days later, on November 26, police encountered a gold Toyota Camry and two men, one

of whom was the Defendant. Police approached, and during the course of a conversation

between police and the Defendant, he revealed that he was left-handed and gave police his

cell phone number. Several days later, police generated a report indicating that the

Defendant’s cell phone had communicated with a cell tower in the general area of the Delta

Express/Mapco near the time of the November 24 robbery. As a result, police obtained a

warrant to place a tracker on the Defendant’s car. During the tracking time period—

December 5 to 11—the car was not linked to any robberies.8

Nevertheless, police arrested the Defendant on December 11 for a traffic offense

and brought him in for questioning. As summarized above, the Defendant admitted

responsibility for all but one offense. He indicated that he discarded clothing that he wore

8

Unbeknownst to police, the Defendant was in a detox center from December 6 to December 10.

-6-

during various robberies and that he did not use a real gun. However, forensic examination

of the Defendant’s cell phone revealed an internet search for “gun shops in Nashville” in

October 2017. Additionally, the Defendant’s cell phone contained a text message from

December 1, 2017, the day after the final (November 30) incident, stating “I did another

one last night but only got $55.” At the time of his arrest in December 2017, the Defendant

was a fifty-four-year-old white man standing 5’11” tall and weighing 200 pounds.

During his statement to police, the Defendant revealed the motivation behind his

series of crimes. The Defendant explained that he was released from prison—having

served time for prior robberies—in September 2015. He managed to secure employment

and “was doing good” for about a year and a half. However, two or three months before

his arrest, he met a couple of individuals who were using heroin. The Defendant stated, “I

was [on the right track], and then I got on the [h]eroin.” The Defendant apparently lost his

job, and he needed money to purchase heroin. As a result, he went “back to what [he]

knew”—robbery—to supply the money for his heroin usage.9 The Defendant explained,

“This didn’t start happening [until] I got on the heroin. And the only reason I did it was

to, I couldn’t find a job. If I could find a job, I’d have worked to pay for my heroin.” The

Defendant further explained that he “didn’t do it to get rich. . . . [It’s] just my drug

addiction.”

The Defendant was charged in a single indictment with twelve counts of aggravated

robbery for the eleven incidents.10 A jury convicted him of eleven counts of aggravated

robbery and one count of attempted aggravated robbery.11 For the aggravated robbery

convictions, the trial court sentenced the Defendant as a repeat violent offender to eleven

concurrent terms of life imprisonment without the possibility of parole. For the attempted

aggravated robbery conviction, the trial court sentenced the Defendant to a concurrent term

of fifteen years of imprisonment. On direct appeal, the Court of Criminal Appeals merged

the two counts associated with the November 11 incident (counts one and two) into a single

conviction. State v. Eady, No. M2021-00388-CCA-R3-CD, 2022 WL 7835823, at *37–

38 (Tenn. Crim. App. Oct. 14, 2022), perm. app. granted, (Tenn. Jan. 31, 2023). Aside

from merging counts one and two into a single conviction, the Court of Criminal Appeals

affirmed the Defendant’s convictions and sentences. Id. at *1, 38.

9

The Defendant spoke with police about his criminal history, including prior robbery convictions.

At one point, the Defendant stated that he and his brother “both have always been robbers. That’s what

we’ve always done. Used to be motels back in the day. Back in the 80’s, you know what I mean. In the

early 90’s. The motels were the easiest things to rob you know.”

10

As previously described, during the November 11 incident, the perpetrator accosted multiple

employees and obtained cash from two registers. The indictment contained two separate counts (counts

one and two) associated with this incident.

11

The Defendant originally was indicted on aggravated robbery for all counts. Because the proof

did not show that he obtained anything during the November 2 incident (count twelve), the charge

ultimately submitted to the jury with respect to that count was attempted aggravated robbery.

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A. The Motion to Disqualify the District Attorney General’s Office

Before trial, the Defendant filed a motion to disqualify the District Attorney

General’s Office from prosecuting the case. The gravamen of the motion was that the

District Attorney General (“General Funk”) represented the Defendant in 1989 in a

criminal case in neighboring Cheatham County.12 In that case, the Defendant pleaded

guilty to aggravated robbery and received a ten-year sentence. He served time in prison

and ultimately was released in 1992. In June 2018, after the Defendant’s indictment in the

present case, the State filed a notice that the Defendant qualified as a “repeat violent

offender” for sentencing purposes based on his prior aggravated robbery convictions, one

of which was the 1989 conviction. See Tenn. Code Ann. § 40-35-120(a)(2) (2019).

Tennessee law mandates a sentence of life imprisonment without the possibility of parole

(“LWOP”) for a defendant who is convicted of certain offenses, including aggravated

robbery, if that defendant qualifies as a repeat violent offender. See Tenn. Code Ann. § 40-

35-120(g) (2019). Thus, in this case, when the Defendant was convicted of aggravated

robbery, the trial court sentenced him to LWOP for each such conviction.

The Defendant also noted that General Funk represented his brother in the mid-

1990s on a host of charges in Nashville and surrounding counties. The Defendant’s brother

ultimately pleaded guilty to multiple charges and received a total sentence of seventy-four

years in prison. The Defendant’s brother pursued an ineffective assistance of counsel claim

in 2006, which was denied.

The trial court conducted a hearing on the motion. At the hearing, General Funk

testified that when he was elected to office, he contacted the Board of Professional

Responsibility concerning the prosecution of former clients.

They advised that it was not going to be a problem for our office to prosecute

folks who were former clients. That if . . . or when there were cases where

they were prosecuting former clients, that I could not divulge any of the

information about that case or anything, any information that I had gotten

about those earlier cases from my clients. But that as long as no confidences

were betrayed, that there is no ethical issue with the district attorney’s office

. . . prosecuting cases against clients that I had represented in my private

practice.

General Funk also testified about the office procedure related to decisions to seek a

sentence of LWOP. For a murder case in which the State sought the death penalty or

LWOP, the decision was made in consultation with the District Attorney General and

12

General Funk was in private practice, including criminal defense work, for many years before

being elected to office in 2014.

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others. In contrast, when the sentence would result from a defendant’s qualifying as a

repeat violent offender and being convicted of an eligible offense, the decision13 was made

at “the team leader level,” not involving the District Attorney General.

Nevertheless, the assistant district attorney (“the ADA”) handling this case

requested a meeting with General Funk during which she expressed an intent to pursue the

LWOP sentence.14 However, it was not uncommon for this ADA to meet with General

Funk “just to run things by [him].” On this occasion, the ADA provided a two-to-three-

minute synopsis of the case. At that time, General Funk was unaware that the case involved

a former client. General Funk told the ADA that filing the notice of the Defendant’s status

as a repeat violent offender was appropriate and the ADA was “making the right decision

on behalf of the office.” In his testimony, General Funk maintained that “the decision was

actually made by [the ADA] as the team leader.”

In February 2019, approximately eight months after the State first filed notice

designating the Defendant as a repeat violent offender, the Defendant filed his motion to

disqualify. As a result, it became apparent that General Funk had represented the

Defendant on the 1989 Cheatham County case. Thereafter, General Funk had another

conversation with the ADA in advance of the hearing on the motion to disqualify. During

that conversation, General Funk confirmed that the ADA had not identified the Defendant

as a former client during the prior conversation. General Funk also explained:

There may have been just remind me again why we were seeking life

without parole, and [the ADA] would have gone through what his record was

and what these events that [led] to the indictment were. But it would’ve been

less than a minute on that topic. It was a courtesy review of what [the

Defendant’s] claims were and what the case was about.

General Funk re-articulated to the ADA his position that it was appropriate for the office

to seek a sentence of LWOP.

At the hearing, General Funk identified various documents—motions, discovery

requests, plea agreements, judgments, and the like—associated with his representation of

the Defendant and his brother. However, General Funk made clear that he did not recall

13

The “decision” General Funk referred to was to file a requisite pretrial notice designating a

defendant as a repeat violent offender, after which the trial court must determine whether the defendant

qualifies under the statute. See Tenn. Code Ann. § 40-35-120(i)(2) (2019). Tennessee law mandates a

sentence of LWOP for a repeat violent offender, but only upon conviction of certain offenses, including

aggravated robbery. See Tenn. Code Ann. § 40-35-120(g) (2019).

14

Although a District Attorney General generally retains discretion to amend a charged offense to

one that would not trigger the mandatory sentence of LWOP, no such action occurred in this case. See

Tenn. Code Ann. § 40-35-120(f) (2019); Tenn. R. Crim. P. 7(b).

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anything about his representation of the Defendant in 1989 or the Defendant’s brother in

the mid-1990s.

The trial court denied the motion to disqualify. In so doing, the trial court accredited

the State’s testimony indicating the limited nature of the interaction between General Funk

and the ADA. More significant for the trial court, however, was the mandatory nature of

the LWOP sentence. The public fact of the Defendant’s qualifying prior convictions,

including the 1989 aggravated robbery conviction, was not in dispute. Thus, the trial court

noted that should the Defendant be convicted of any of the aggravated robberies with which

he was charged, he unequivocally would receive a sentence of LWOP because he would

qualify as a repeat violent offender. See Tenn. Code Ann. § 40-35-120(g) (2019). The

trial court also pointed out that Tennessee law even precluded it from accepting a plea

agreement “that fails to recommend that a defendant with a sufficient number of designated

prior convictions be sentenced as a repeat violent offender.” Tenn. Code Ann. § 40-35-

120(f) (2019).

On direct appeal, the Court of Criminal Appeals found no error in the trial court’s

decision. Eady, 2022 WL 7835823, at *35. In its treatment of the issue, the intermediate

appellate court noted, “There is no real dispute between the parties that General Funk had

an actual conflict of interest disqualifying him from participating in Defendant’s

prosecution.” Id. at *34 (citing Tenn. Sup. Ct. R. 8, RPC 1.9(a), 1.11(d)(2)(i)). The court

was not persuaded by the Defendant’s argument that General Funk “engaged in this case

in a meaningful manner when he reiterated his opinion to [the ADA] that it was appropriate

for the Office to seek the repeat violent offender designation . . . after he learned that he

had previously represented Defendant.” Id. at *12 (internal quotation marks omitted). The

court stated:

While we are likewise concerned that General Funk spoke with ADA King

about the case after the motion to disqualify had been filed, there is nothing

in the record to show that a confidence was divulged relevant to the current

prosecution and materially adverse to Defendant. There is no proof that

General Funk revealed any confidences gained from his former

representation relevant to the prosecution of the case. Defendant’s 1989

Cheatham County conviction was a matter of public record.

Id. at *34. The court also observed that “the status of repeat violent offender did not hinge

on General Funk’s approval of the request [to file a notice designating the Defendant as a

repeat violent offender].” Id. In this vein, the court recognized that because “the State’s

evidence of Defendant’s repeat violent offender status was uncontroverted[,] . . . the trial

court was required to impose a sentence of life imprisonment without the possibility of

parole as to Defendant’s aggravated robbery convictions.” Id. at *35.

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B. The Motion to Sever Offenses

Before trial, the Defendant also filed a motion to sever all counts except the two

stemming from the single incident that occurred on November 11 (counts one and two).15

As we will discuss in more detail below, resolution of the motion required an inquiry into

whether: (1) the charged offenses were parts of a common scheme or plan; (2) the evidence

of each offense was relevant to some material issue in the trial of the other offenses; and

(3) the probative value of the evidence of other offenses was outweighed by any unfair

prejudicial effect that admitting the evidence would have. See Tenn. R. Crim. P. 14(b)(1);

State v. Denton, 149 S.W.3d 1, 13 (Tenn. 2004) (citing Tenn. R. Evid. 404(b)(2),

404(b)(3)).16 As for the first part of the inquiry, Tennessee courts recognize three

categories of “common scheme or plan” evidence: (1) offenses that exhibit a distinctive

design or are so similar as to constitute signature crimes; (2) offenses that are parts of a

larger, continuing plan or conspiracy; or (3) offenses that are all part of the same criminal

transaction. See, e.g., Denton, 149 S.W.3d at 13; see generally Neil P. Cohen et al.,

Tennessee Law of Evidence § 4.04[12][a], at 4-115 (6th ed. 2011). In this case, the State

contended that the individual robberies were parts of a larger, continuing plan.

The trial court conducted a hearing on the motion to sever.17 The State introduced

a chart summarizing the evidence associated with each incident, a map identifying the

location of the incidents, and still images from video surveillance footage of the incidents.

Before the trial court, the State argued that the larger, continuing plan was evidenced by a

“common goal or purpose” of the offenses, namely “to fuel [the Defendant’s] addiction to

buy heroin.” As for evidentiary relevance, the State argued that evidence of the larger,

continuing plan reflected in the various offenses was relevant to the material issue of

identity of the perpetrator. Finally, with respect to the balance of probative value versus

unfair prejudice, the State contended that the probative value of the offenses was

“particularly significant” because “the robberies [were] done in generally the same manner,

. . . similar businesses in roughly the same location.”

For his part, the Defendant argued that the State was confusing the distinctive design

or signature crime category with the larger, continuing plan category. The Defendant

argued that a larger, continuing plan “requires proof of a working plan, operating towards

15

In this opinion, although we will refer generally to severance of the offenses, our treatment of

the issue does not apply to severing counts one and two from each other.

16

As our citations to Tennessee Rule of Evidence 404(b) in Denton make clear, trying multiple

offenses together raises concerns much like when admitting evidence of other crimes in the trial of a single

offense. Thus, there is an obvious overlap with principles surrounding Rule 404(b)’s general prohibition

of character/propensity evidence.

17

The hearing also addressed the Defendant’s motion to suppress his statement to police. Thus,

the trial court had before it not only the evidence pertaining to the offenses, but also the Defendant’s

statement to police.

- 11 -

the future with such force as to make probable the crime for which the defendant is on

trial.” According to the Defendant, “[a] working plan occurs when subsequent offenses

are predictable or probable from the defendant’s determination to commit the initial

offenses.” The Defendant contended that the various offenses he was charged with

committing did not “build off one another in any sort of way.” Furthermore, the Defendant

argued that simply having a common goal of stealing money to purchase drugs did not

support trying separate offenses together under the theory of a larger, continuing plan. As

for the balance of probative value versus unfair prejudice, the Defendant argued that the

similarity of the offenses was quite general in nature, and, thus, the probative value of the

offenses as to the issue of identity was low in comparison to what the Defendant

characterized as “extremely prejudicial propensity evidence here.”

The trial court denied the motion to sever.18 The trial court found that identity was

a material issue and that the probative value of the evidence of other offenses was

“particularly significant and outweigh[ed] potential prejudice.” As for the common

scheme or plan part of the analysis, the trial court noted the State’s argument that the

Defendant committed the offenses “with the common goal, or purpose, to fuel his drug

addiction and purchase heroin.” Ultimately, the trial court found that the offenses were

parts of a larger, continuing plan because the proof showed a “working plan, operating

towards the future with such force as to make probable the crime for which the defendant

is on trial.” See Cohen, supra, § 4.04[12][c], at 4-120.

On direct appeal, a majority of the Court of Criminal Appeals agreed with the trial

court. The majority acknowledged that a “shared motivation for two otherwise unrelated

crimes is not sufficient to establish a ‘common scheme or plan.’” Eady, 2022 WL 7835823,

at *26 (quoting State v. Prentice, 113 S.W.3d 326, 332 (Tenn. Crim. App. 2001)).

However, the majority did note that the Defendant admitted to police that “the robberies

were the product of a continuing motive – to obtain money for heroin.” Id. at *28. The

majority found proof of a larger, continuing plan based on its conclusion that “[i]n this

instance, Defendant’s mission was not to get rich, but to steal enough money to buy heroin

to hold him over for a few days. When the heroin ran out, he would rob another store.” Id.

The majority also placed significance on the similarity of the offenses: “Altogether,

Defendant robbed eleven convenience stores, located in a confined geographic area, over

a short period of time, and robbed them in the same manner, dressed in similar type

clothing, and armed with the same type of weapon.” Id. at *29. Ultimately, the majority

concluded that the evidence showed that the “Defendant expressed a goal and motivation

for his crimes and developed a working plan toward accomplishing that goal.” Id. at *28.

Judge Camille R. McMullen disagreed with the majority that there was proof that

the offenses were parts of a larger, continuing plan. Id. at *38 (McMullen, J., dissenting

in part). Judge McMullen noted that a “larger, continuing plan or conspiracy ‘involves not

18

The Defendant later filed a motion to reconsider this ruling, which the trial court also denied.

- 12 -

the similarity between the crimes, but [rather] the common goal or purpose at which they

are directed.’” Id. (McMullen, J., dissenting in part) (quoting Denton, 149 S.W.3d at 15).

In addition, Judge McMullen also noted that a “shared motivation” for otherwise separate

crimes is insufficient to establish a larger, continuing plan. Id. (McMullen, J., dissenting

in part) (quoting State v. Adams, 859 S.W.2d 359, 362 (Tenn. Crim. App. 1992)). In Judge

McMullen’s view, the Defendant’s confession “provided his reason or motivation to

commit the robberies—to support his drug addiction—and nothing more.” Id. at *40

(McMullen, J., dissenting in part). Furthermore, Judge McMullen concluded that the

record showed that the Defendant’s “behavior amounts to random, opportunistic criminal

acts and not the product of any preconceived plan.” Id. (McMullen, J., dissenting in part).

II. ANALYSIS

We granted the Defendant’s request for permission to appeal to consider the

disqualification issue and the severance issue. Based on our review of the record, we have

determined that the trial court did not err in denying the Defendant’s motion to disqualify

the District Attorney General’s Office from prosecuting this case. We also have

determined that the trial court did err in denying the motion to sever, but the error was

harmless with respect to all convictions except the one tied to count eight (the November

26 incident). Accordingly, we affirm the judgment of the Court of Criminal Appeals in

part, reverse it in part, and remand this case to the trial court for further proceedings

consistent with this opinion.

A. The Disqualification Issue

Tennessee law recognizes that loyalty is an “essential element[] in the lawyer’s

relationship to a client.” Tenn. Sup. Ct. R. 8, RPC 1.7 cmt. 1 (2019). In recognition of the

importance of this principle, Tennessee law specifically identifies rules addressing a

lawyer’s duties to former clients. See Tenn. Sup. Ct. R. 8, RPC 1.9 (2019). A lawyer

serving as a public officer or employee generally is subject to those rules. Tenn. Sup. Ct.

R. 8, RPC 1.11(d)(1) (2019). However, Tennessee law also recognizes that the rules

governing lawyers employed by a government agency “should not be so restrictive as to

inhibit transfer of employment to . . . the government.” Tenn. Sup. Ct. R. 8, RPC 1.11 cmt.

4. We are called upon here to examine these rules in the context of a criminal case

prosecuted by a District Attorney General’s Office whose District Attorney General

previously represented the Defendant.

In this case, the record demonstrates that General Funk, while in private practice,

represented the Defendant in a criminal case in Cheatham County in 1989. In the course

of that representation, the Defendant pleaded guilty to aggravated robbery. The Defendant

served his sentence. Years later, in 2014, the Defendant’s former counsel was elected

District Attorney General for Davidson County. In 2018, the Defendant was indicted for

the robbery offenses at issue in this case. The State filed a notice designating the Defendant

- 13 -

as a repeat violent offender for sentencing purposes, listing as one of the necessary

qualifying offenses the Cheatham County aggravated robbery conviction from 1989. See

Tenn. Code Ann. § 40-35-120(a)(2) (2019).

Based on General Funk’s prior representation on the 1989 case, the Defendant filed

a motion to disqualify the District Attorney General’s Office from prosecuting the case.

The Defendant elicited proof that the ADA handling the case had a conversation with

General Funk—characterized as a two-to-three-minute synopsis of the case—before

deciding to file the notice designating the Defendant as a repeat violent offender. Although

office policy dictated that the decision was one made at “the team leader level” rather than

in consultation with the District Attorney General, General Funk told the ADA that she

was “making the right decision on behalf of the office.” At the time, General Funk was

unaware that the case involved a former client. However, after that fact became apparent,

General Funk had another conversation with the ADA—this time in advance of the hearing

on the motion to disqualify—that was characterized as “a courtesy review of what [the

Defendant’s] claims were and what the case was about.” General Funk reiterated to the

ADA that it was appropriate for the office to have filed the notice designating the

Defendant as a repeat violent offender. The proof is uncontroverted that at no time did

General Funk recall anything about his representation of the Defendant in 1989.

The trial court denied the motion to disqualify. Although the trial court

acknowledged the limited nature of the interaction between General Funk and the ADA,

the trial court’s focus was on the mandatory nature of the Defendant’s repeat violent

offender status and resulting sentence of LWOP upon conviction for aggravated robbery.

The Court of Criminal Appeals affirmed, noting in its treatment of the issue, “There is no

real dispute between the parties that General Funk had an actual conflict of interest.” Eady,

2022 WL 7835823, at *34. The Defendant now seeks relief in this Court, arguing that the

trial court erred in denying the motion to disqualify.

1. Standard of Review

We review a trial court’s decision to disqualify a lawyer for a conflict of interest,

and to vicariously disqualify the lawyer’s office, under an abuse of discretion standard.

State v. Davis, 141 S.W.3d 600, 613 (Tenn. 2004); Clinard v. Blackwood, 46 S.W.3d 177,

182 (Tenn. 2001) (citing State v. Culbreath, 30 S.W.3d 309, 312–13 (Tenn. 2000)). “A

court abuses its discretion when it causes an injustice to the party challenging the decision

by (1) applying an incorrect legal standard, (2) reaching an illogical or unreasonable

decision, or (3) basing its decision on a clearly erroneous assessment of the evidence.”

Harmon v. Hickman Cmty. Healthcare Servs., Inc., 594 S.W.3d 297, 305 (Tenn. 2020)

(quoting Lee Med., Inc. v. Beecher, 312 S.W.3d 515, 524 (Tenn. 2010)). The interpretation

of the Rules of Professional Conduct, however, is a question of law that we review de novo.

Lockett v. Bd. of Pro. Resp., 380 S.W.3d 19, 25 (Tenn. 2012).

- 14 -

2. Application of Disqualification Law to the Facts of this Case

As a preliminary matter, we note that the State argues before this Court that General

Funk had no actual conflict of interest under the rules. Of course, as previously mentioned,

the Court of Criminal Appeals observed that there was no “real dispute” that General Funk

had an actual conflict of interest. Eady, 2022 WL 7835823, at *34. Indeed, from our

review of the record, it appears that the parties assumed as much, given that it was not a

topic of discussion below and the focus was on whether the District Attorney General’s

Office should be disqualified vicariously. Not surprisingly, the Defendant—although not

expressly asserting waiver—points out that the State is advancing a new argument before

this Court.19 Of course, the issue presented—whether the trial court correctly denied the

motion to disqualify—is not a new one, for it was raised properly below and in this Court.

We acknowledge that the State’s argument was not presented below. However, given our

position as the final arbiter of the professional conduct of all lawyers practicing in

Tennessee, see Bd. of Pro. Resp. v. Justice, 577 S.W.3d 908, 923 (Tenn. 2019), and our

responsibility to apply the controlling law, see Nance v. Westside Hosp., 750 S.W.2d 740,

744 (Tenn. 1988) (opinion on petition for rehearing), we elect to exercise our discretion to

consider the State’s argument. See Tenn. R. App. P. 13(b).

RPC 1.11 addresses special conflicts of interest for former and current government

officers and employees. Tenn. Sup. Ct. R. 8, RPC 1.11 (2019). It specifies, in part, that a

lawyer serving as a public officer or employee is subject to RPC 1.9. Tenn. Sup. Ct. R. 8,

RPC 1.11(d)(1). RPC 1.9, in turn, identifies duties to former clients. In pertinent part, it

states:

A lawyer who has formerly represented a client in a matter shall not

thereafter represent another person in the same or a substantially related

matter in which that person’s interests are materially adverse to the interests

of the former client unless the former client gives informed consent,

confirmed in writing.

Tenn. Sup. Ct. R. 8, RPC 1.9(a) (2019) (emphasis added). Furthermore, the comments to

RPC 9 provide:

Matters are “substantially related” for purposes of this Rule if they

involve the same transaction or legal dispute or other work the lawyer

performed for the former client or if there is a substantial risk that

confidential factual information that would normally have been obtained in

the prior representation would materially advance the client’s position in the

subsequent matter, unless that information has become generally known.

19

We note that because the Defendant was the appellant in this Court, he had an opportunity to and

did, in fact, respond to the State’s argument via his reply brief.

- 15 -

Tenn. Sup. Ct. R. 8, RPC 1.9 cmt. 3 (2019).

The present Davidson County case clearly is not the “same” matter as the 1989

Cheatham County case. In other words, this is not an instance in which the prosecutor

“switched sides” during the pendency of the present case. See State v. Phillips, 672 S.W.2d

427, 428–30 (Tenn. Crim. App. 1984).

Furthermore, we do not agree with the Defendant that the matters are “substantially

related.” In our view, they are at most tangentially related. The extent of the relationship

between the 1989 case and the present case is that the simple fact of conviction in the 1989

case served as part of the qualification of the Defendant for an enhanced sentence in the

present case. In this way, the present case is analogous to State v. Dixon, No. M2010-

02382-CCA-R3-CD, 2012 WL 2356523 (Tenn. Crim. App. June 21, 2012), perm. app.

denied, (Tenn. Nov. 26, 2012). In Dixon, a prosecutor previously represented the

defendant on completely separate charges that later served as part of what qualified the

defendant for enhanced sentencing. In rejecting a motion to disqualify the prosecutor, the

Court of Criminal Appeals noted that there was no dispute about the fact of the prior

convictions and there was no evidence that the prosecutor obtained information during the

prior representation that had any bearing on the subsequent convictions. Id. at *14. In fact,

there was no evidence that the prosecutor even remembered the prior representation, which

had occurred eighteen years earlier. Id. at *13–14. We find this analysis instructive.

In this case, just as in Dixon, there was no dispute surrounding the Defendant’s 1989

conviction, and it had no bearing on the Defendant’s convictions in this case. In our view,

the matters clearly do not involve the same legal dispute. Furthermore, we simply cannot

conclude that there was a “substantial risk that confidential information that normally

would have been obtained in the prior representation [other than information that] has

become generally known” would materially advance the State’s position in the present

case. Tenn. Sup. Ct. R. 8, RPC 1.9 cmt. 3 (2019). The only information of import for

purposes of the present case was the simple fact of conviction in the 1989 case, which was

public record and, therefore, not confidential. Under these circumstances, we conclude

that the matters were not “substantially related” for purposes of RPC 1.9. Accordingly,

under the Rules, General Funk did not have an actual conflict in this case on which to base

any argument in favor of vicarious disqualification of the District Attorney General’s

Office.

Even absent an actual conflict on the part of General Funk under the Rules,

however, the Defendant argues that the circumstances exhibited “a strong appearance of

impropriety” that merited disqualification of the District Attorney General’s Office. The

Defendant draws from caselaw holding that even “[i]f there is no actual conflict of interest,

the court must nonetheless consider whether conduct has created an appearance of

impropriety.” Clinard v. Blackwood, 46 S.W.3d 177, 187 (Tenn. 2001) (quoting State v.

- 16 -

Culbreath, 30 S.W.3d 309, 312–13 (Tenn. 2000)). The Defendant insists that “[t]he

‘appearance of impropriety’ is therefore an independent ground upon which

disqualification may be based.” Id.

The Defendant relies heavily on concepts developed in Clinard v. Blackwood, a

leading case exploring vicarious disqualification based on an appearance of impropriety.

Clinard involved a lawyer with an actual conflict of interest, in that he previously

represented parties adverse to parties represented by his current firm in the same legal

dispute. The lawyer’s firm implemented screening measures, which this Court found

effective to defeat vicarious disqualification under the ethical rules then in effect. This

Court nevertheless imputed disqualification to the firm. The basis for vicarious

disqualification was “the serious appearance of impropriety.” Id. at 181. Central to the

Court’s reasoning was the fact that the ethical rules in effect at the time, the Code of

Professional Responsibility, specifically included a lawyer’s duty to avoid the appearance

of impropriety. Id. at 186. Thus, the Court concluded that an appearance of impropriety

was an independent ground upon which the lawyer’s firm could be disqualified

vicariously.20 Id. at 187.

Before this Court, the Defendant acknowledges that his argument stems from

caselaw that relied on the Code of Professional Responsibility, a precursor to the Rules of

Professional Conduct applicable in this case. See id. at 186. The Code of Professional

Responsibility contained language specifically indicating that a lawyer should avoid even

the appearance of professional impropriety. Id. Our current Rules of Professional Conduct

did not retain that language. See Tenn. Sup. Ct. R. 8, RPC 1.10 cmt. 9 (2019). The

Defendant urges us to reaffirm the viability of vicarious disqualification of government

lawyers—even in the absence of an actual conflict—based on an appearance of

impropriety, in spite of the omission of the pertinent language in the Rules of Professional

Conduct.

Clearly, the Rules of Professional Conduct expressly declined to retain the

appearance of impropriety standard from the Code of Professional Responsibility. See

Tenn. Sup. Ct. R. 8, RPC 1.10 cmt. 9 (indicating that neither RPC 1.10 nor RPC 1.11 retains

the appearance of impropriety standard that existed under the Code of Professional

Responsibility). The Defendant points out—and the State concedes—that some panels of

the Court of Criminal Appeals have held out the possibility that the appearance of

impropriety standard still survives as a basis for imputed disqualification of a district

attorney general’s office. See, e.g., State v. Grooms, No. W2019-01324-CCA-R10-CD,

2020 WL 9171956, at *8 (Tenn. Crim. App. Nov. 15, 2020). However, we note that some

of our sister states have abandoned the appearance of impropriety standard in light of the

20

The Court held that an appearance of impropriety exists in those situations in which an ordinary

knowledgeable citizen acquainted with the facts would conclude that the representation poses substantial

risk of disservice to either the public interest or the interest of one of the clients. Clinard, 46 S.W.3d at 187.

- 17 -

emergence of the Rules of Professional Conduct. See, e.g., People v. Solis, 523 P.3d 427,

432 n.3 (Colo. 2022); State v. Hudson, 128 A.3d 739, 747 (N.J. Super. Ct. App. Div. 2015);

State v. Eighth Jud. Dist. Ct., 321 P.3d 882, 886 (Nev. 2014).

The matter before us is a criminal case involving no actual conflict of interest under

the Rules, in which the Defendant nonetheless seeks to impute disqualification to the

District Attorney General’s Office. Simply put, we do not believe that the appearance of

impropriety standard provides an independent basis for vicarious disqualification.

Significantly, as previously mentioned, the Rules of Professional Conduct omitted any

language referencing an appearance of impropriety standard. See Tenn. Sup. Ct. R. 8, RPC

1.10 cmt. 9.

In addition, the Rules contemplate that “where a lawyer represents the government

after having served clients in private practice, nongovernmental employment, or in another

agency,” imputation is governed by RPC 1.11, which addresses conflicts of interest for

government officers and employees. See Tenn. Sup. Ct. R. 8, RPC 1.10 cmt. 11 (2019).

RPC 1.11(d) clearly provides that an individual lawyer serving as a public officer or

employee is subject to both Rule 1.7 (pertaining to conflicts of interest) and Rule 1.9

(pertaining to the duties owed to former clients). However, the comments to RPC 1.11

make clear that “[b]ecause of the problems raised by imputation within a government

agency, paragraph (d) does not impute the conflicts of a lawyer currently serving as an

officer or employee of the government to other associated government officers or

employees, although ordinarily it will be prudent to screen such lawyers.” Tenn. Sup. Ct.

R. 8, RPC 1.11 cmt. 2 (2019); see also Tenn. Sup. Ct. R. 8, RPC 1.11 cmt. 9 (2019)

(“Paragraph (d) does not disqualify other lawyers in the agency with which the lawyer in

question has become associated.”). Instead, “[t]he individual lawyer involved is bound by

the Rules generally.” Tenn. Sup. Ct. R. 8, RPC 1.10 cmt. 11 (2019). Thus, declining to

apply the appearance of impropriety standard is consistent with RPC 1.11, which

specifically addresses conflicts of interest for current government lawyers.

Lastly, we note that even in Clinard, which held that the appearance of impropriety

was then an independent ground for vicarious disqualification, this Court recognized that

adherence to the appearance of impropriety standard might not be called for in the event of

a change in the language of our rules governing attorney conduct. 46 S.W.3d at 186 n.7

(specifically referencing potential changes with regard to imputed disqualification cases).

We reiterate that this case is not one in which a government lawyer “switched sides” in the

same matter or otherwise had an actual conflict. We simply cannot conclude that the Rules,

which by their own terms would not impute disqualification, somehow allow for vicarious

disqualification based on an appearance of impropriety when the Rules did not retain that

concept. To the extent any opinions of the Court of Criminal Appeals could be interpreted

as maintaining the appearance of impropriety standard as an independent basis for imputed

disqualification of government lawyers in criminal matters, see, e.g., Grooms, 2020 WL

9171956, at *8, they are overruled.

- 18 -

Accordingly, although we reach the result for different reasons than the courts

below, we conclude that there was no basis to disqualify the District Attorney General’s

Office from prosecuting this case.21 Thus, we affirm the judgment of the Court of Criminal

Appeals in this regard. See State v. Hester, 324 S.W.3d 1, 21 n.9 (Tenn. 2010) (holding

that an appellate court may affirm on different grounds than those relied on by the lower

court when the court has reached the correct result).

B. The Severance Issue

Tennessee law provides that “[t]wo or more offenses may be joined in the same

indictment, presentment, or information, with each offense stated in a separate count . . .

if: (1) the offenses constitute parts of a common scheme or plan; or (2) they are of the same

or similar character.” Tenn. R. Crim. P. 8(b). This provision states the concept commonly

referred to as permissive joinder of offenses. With respect to permissive joinder of

offenses, Tennessee law further provides that “[i]f two or more offenses are joined or

consolidated for trial pursuant to Rule 8(b), the defendant has the right to a severance of

the offenses unless the offenses are part of a common scheme or plan and the evidence of

one would be admissible in the trial of the others.” Tenn. R. Crim. P. 14(b)(1). Considered

together, the two rules specify that, if offenses are permissibly joined in the same

indictment simply because “they are of the same or similar character,” then the defendant

has the right to sever the offenses for trial. Thus, this Court has recognized that if the

defendant seeks to sever permissibly joined offenses, the offenses may be tried together

only if (1) they are parts of a common scheme or plan, and (2) evidence of one would be

admissible in the trial of the others. See State v. Garrett, 331 S.W.3d 392, 402 (Tenn.

2011); Denton, 149 S.W.3d at 12–13. Upon the defendant’s motion to sever permissibly

joined offenses, the State bears the burden of establishing both prongs. Cf. State v. Toliver,

117 S.W.3d 216, 228 (Tenn. 2003) (citing Spicer v. State, 12 S.W.3d 438, 447 (Tenn.

2000)).

As the language of Rule 14(b)(1) makes clear, there are two prongs to the inquiry

into whether the defendant may obtain a severance of permissibly joined offenses. In this

appeal, we focus on the first prong and examine the trial court’s finding that the State

produced evidence establishing that the various robbery offenses were parts of a common

scheme or plan.22 This Court has recognized three categories of “common scheme or plan”

21

Our decision on this issue in no way should be construed as countenancing the screening

procedures employed by the District Attorney General’s Office in this case. Indeed, best practices likely

should lead to a revision of the Office’s screening policies. See Tenn. Sup. Ct. R. 8, RPC 1.11 cmt. 2

(noting that “ordinarily it will be prudent” to implement screening procedures in the context of conflicts

among government lawyers).

22

Our approach is driven by the facts of this particular case. The second prong certainly is equally

significant in the analysis, for we have recognized that “a question of severance under Rule 14(b)(1) is

- 19 -

for purposes of Rule 14(b)(1). They are: (1) offenses that reveal a distinctive design or are

so similar as to constitute “signature” crimes; (2) offenses that are parts of a larger,

continuing plan or conspiracy; and (3) offenses that are all part of the same criminal

transaction. Garrett, 331 S.W.3d at 404; Denton, 149 S.W.3d at 13; Moore, 6 S.W.3d at

240; see generally Cohen, supra, § 4.04[12][a], at 4-115. In this case, the State always has

argued that the individual robberies reflected a “common scheme or plan” solely because

the evidence showed they were parts of a larger, continuing plan. The trial court’s decision

on the motion to sever was in accord. As a result, we confine our analysis to that category

of “common scheme or plan” as used in Rule 14(b)(1).

1. Standard of Review

Tennessee law is clear that an appellate court reviews a trial court’s decision to deny

severance of permissibly joined offenses under an abuse of discretion standard. Denton,

149 S.W.3d at 12; Spicer, 12 S.W.3d at 442; State v. Shirley, 6 S.W.3d 243, 247 (Tenn.

1999). “A court abuses its discretion when it causes an injustice to the party challenging

the decision by (1) applying an incorrect legal standard, (2) reaching an illogical or

unreasonable decision, or (3) basing its decision on a clearly erroneous assessment of the

evidence.” Harmon, 594 S.W.3d at 305 (quoting Lee Med., Inc., 312 S.W.3d at 524); see

also Garrett, 331 S.W.3d at 401. The decision to sever permissibly joined offenses

pursuant to Rule 14(b)(1) requires a fact-intensive inquiry and “will necessarily turn on the

facts of a particular case.” Shirley, 6 S.W.3d at 247.

2. Application of Severance Law to the Facts of this Case

Before this Court, the State maintains that the trial court correctly denied the motion

to sever. The State contends that the evidence, particularly the Defendant’s statement to

police, reflects that the various offenses were committed in furtherance of a readily

distinguishable ultimate goal—to obtain money to satisfy a heroin addiction. Looking

primarily to similarities in the offenses, the State further contends that the evidence

supports the existence of a working plan on the part of the Defendant, operating toward the

future so as to make probable each crime with which the Defendant was charged. In this

vein, the State points to what it characterizes as: a common target (“convenience stores”);

really a question of evidentiary relevance.” State v. Moore, 6 S.W.3d 235, 239 (Tenn. 1999). Indeed, the

presence of the second prong of the analysis demonstrates that the mere existence of a common scheme or

plan among offenses does not render evidence of the offenses admissible. See Spicer, 12 S.W.3d at 443

(“Likewise, although Rule 8(b) permits consolidation when the offenses are parts of a common scheme or

plan, Rule 14(b)(1) can be used to sever those offenses if evidence of each offense is not admissible in the

trial of the others.”); see also Moore, 6 S.W.3d at 239 n.6. As previously mentioned, the trial court in this

case found that the evidence of the various charged offenses—reflecting a common scheme or plan—was

relevant to the material issue of identity and that the danger of unfair prejudice to the Defendant did not

outweigh the probative value of the evidence. Because we conclude that the trial court erred in finding a

common scheme or plan under the first prong, we need not reach the trial court’s findings as to the second

prong.

- 20 -

the similar manner of the robberies (a perpetrator armed with a similar-looking handgun,

holding the weapon primarily in his left hand, wearing similar clothing, concealing his

identity in a similar way); the short time period covered by the offenses; and the confined

geographic area covered by the offenses.

As a preliminary matter, we note that the Defendant complains in this Court about

the consideration of certain evidence of his criminal history in the analysis of the severance

issue. More specifically, in his statement to police, the Defendant made several references

to his past criminal behavior. The intermediate appellate court referred to some of those

statements in concluding that the Defendant formulated a plan, “based on his experience

as a seasoned robber,” to rob convenience stores when he needed money for heroin. Eady,

2022 WL 7835823, at *28 (referring to evidence that the Defendant and his brother had

“always been robbers” and that he “resorted back to what [he] knew” when he needed

money for heroin and did not have a job). The entirety of the Defendant’s statement was

available to the trial court for the hearing on the motion to sever, which was heard along

with the Defendant’s motion to suppress his statement. However, portions of the

statement—including certain references to criminal history—were redacted at trial.

A motion to sever offenses ordinarily is a pre-trial motion. Consequently, evidence

and arguments tending to establish or negate the propriety of severance should be presented

to the trial court in a pre-trial hearing on the motion. Because a trial court’s decision is

determined from the evidence presented at the hearing, appellate courts typically should

look only to that evidence, along with the trial court’s findings of fact and conclusions of

law, to determine whether the trial court erred in its decision. Spicer, 12 S.W.3d at 445;

see also Denton, 149 S.W.3d at 13 n.3. It is a rare case that would call for a different

procedure. See Toliver, 117 S.W.3d at 228 (electing to consider the evidence presented at

trial to determine whether the State established that the offenses were part of a common

scheme or plan, given that the matter was not raised until the first morning of trial and the

proceedings on the severance issue were shortened). Thus, it was incumbent upon the

Defendant to identify any concerns he had with the evidence presented to the trial court at

the hearing on his motion to sever.23 Nevertheless, we observe that references to criminal

history in the Defendant’s statement to police are not determinative of our resolution of the

issue before us.

We begin our analysis of the severance issue by noting that, just as with the phrase

“common scheme or plan,” the language of Rule 14(b)(1) does not speak specifically to

23

The trial court heard the motion to sever, took the matter under advisement, and later issued a

written order denying the motion. We note that the Defendant filed a motion to reconsider the trial court’s

original decision to deny the motion to sever. At no time during the proceedings on the original motion or

in the motion to reconsider did the Defendant identify any issue with respect to consideration of references

to criminal history in his statement to police.

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what constitutes a larger, continuing plan. We do not believe the phrase is self-defining.24

Instead, perhaps owing to the wide variety of facts that can constitute any number of

criminal endeavors, the concept likely is better understood as “amorphous.” Walker v.

Commonwealth, 770 S.E.2d 197, 200 (Va. 2015). Of course, guiding principles have

developed through caselaw over time. Nevertheless, we acknowledge that the concept of

a larger, continuing plan is not always straightforward. See David P. Leonard, The New

Wigmore: Evidence of Other Misconduct and Similar Events § 9.2.2, at 574 (2009) (stating

that “what constitutes a ‘plan’ is subject to interpretation”). Indeed, commentators have

delved deeply into the subject, and not surprisingly, there has been much room for debate.

See, e.g., Edward J. Imwinkelried, Using a Contextual Construction to Resolve the Dispute

over the Meaning of the Term “Plan” in Federal Rule of Evidence 404(b), 43 U. Kan. Law

Rev. 1005, 1011–16 (1995) (discussing contrasting conceptions of the doctrine, including

the “unlinked plan theory,” the “linked methodology theory,” the “linked act theory,” and

variations within them).

However, universal in the commentary and caselaw on the concept of a “common

plan” is an evidentiary concern. The appeal of evidence that separate crimes were parts of

a common plan lies in how it can establish a logical connection between instances of

criminal conduct so as to support an inference that because a defendant engaged in certain

conduct, he likely engaged in other conduct. See Leonard, supra, § 9.1, at 555 (“A person

who has devised a plan is more likely to act consistently with that plan than is a person

who does not have such a plan.”). The challenge is that using evidence in this way

implicates the evil that Tennessee Rule of Evidence 404(b) seeks to prevent.25 The

justification for trying offenses that constitute parts of a larger, continuing plan together—

much like that for legitimately admitting evidence of other crimes in the trial of a different

offense under Rule 404(b)—is that it theoretically requires no inference as to the

defendant’s character. Instead, the defendant’s behavior is the product of a commitment

to a course of conduct of which each offense is only a part. The evidence of multiple

offenses is permissible when it shows the larger goal rather than merely the defendant’s

24

We note that at one time, Black’s Law Dictionary included a general definition of “plan” as “a

method of design or action, procedure, or arrangement for accomplishment of a particular act or object” as

well as a “method of putting into effect an intention or proposal.” Plan, Black’s Law Dictionary (6th ed.

1990). More recently, however, the general definition has been omitted, leaving only more specific contexts

(e.g., bankruptcy plan, employee benefit plan). Plan, Black’s Law Dictionary (9th ed. 2009).

25

Rule 404(b) prohibits evidence of other crimes “to prove the character of a person in order to

show action in conformity with the character trait.” Tenn. R. Evid. 404(b). Generally speaking, then, Rule

404(b) prohibits the admission of evidence of the character of the defendant when offered to show that the

defendant acted in a certain way on a particular occasion because the defendant had a propensity or

inclination to act that way. The limitations associated with the rule ultimately flow from the recognized

legal principle that “the doing of one act is in itself no evidence that the same or a like act was again done

by the same person.” 1A Wigmore, Evidence § 55.1, at 1161 (Tillers rev. ed. 1983). Trying multiple

offenses in the same trial obviously presents evidentiary concerns that parallel those behind Rule 404(b)

regarding admission of evidence of “other crimes” in the trial of a single offense.

- 22 -

propensity to commit crimes. See 22B Charles Alan Wright & Kenneth W. Graham, Jr.,

Federal Practice and Procedure § 5244, at 139–40 (2d ed. 2017).

Nevertheless, we have recognized that the admission of evidence of multiple crimes

“carries with it the inherent risk of the jury convicting a defendant of a crime based on his

or her bad character or propensity to commit a crime, rather than the strength of the proof

of guilt on the specific charge.” Garrett, 331 S.W.3d at 402 (quoting State v. Dotson, 254

S.W.3d 378, 387 (Tenn. 2008)). Thus, trying offenses together risks inviting the jury to

infer improperly that the defendant has a propensity to commit crimes, exploiting the very

propensity inference that Rule 404(b) is designed to prohibit. See Moore, 6 S.W.3d at 239.

The evidentiary concern underscores the importance of ensuring that courts correctly

evaluate whether evidence of multiple offenses reflects a larger, continuing plan. See

Imwinkelried, supra, 43 U. Kan. Law Rev. at 1008 (noting condemnation of the

“invocation of the plan theory when the prosecutor can show only that the accused has

recently committed parallel offenses” because it “undercut[s] the character prohibition by

converting the plan doctrine into a plan-to-commit-a-series-of-similar-crimes theory”).

There is no doubt that determining whether multiple offenses reflect a larger,

continuing plan sometimes can prove challenging.26 Experience teaches that direct

evidence of a plan is the exception rather than the rule. Instead, courts more typically must

infer the existence of a plan from the evidence as a whole. Our courts have crafted several

guiding principles. For instance, we have observed that, fundamentally, the “larger,

continuing plan” category encompasses groups or sequences of crimes committed in order

to achieve a common ultimate goal or purpose. See, e.g., Denton, 149 S.W.3d at 15; see

also State v. Osborne, 251 S.W.3d 1, 11 (Tenn. Crim. App. 2007); State v. Hallock, 875

S.W.2d 285, 290 (Tenn. Crim. App. 1993). Thus, it is not necessarily the similarity

between offenses that establishes a larger, continuing plan, “but [rather] the common goal

or purpose at which they are directed.” Denton, 149 S.W.3d at 15 (quoting State v. Hoyt,

928 S.W.2d 935, 943 (Tenn. Crim. App. 1995), overruled on other grounds by Spicer, 12

S.W.3d at 447). Indeed, there is no requirement that the offenses constituting a larger,

continuing plan be similar at all. See Cohen, supra, § 4.04[12][c], at 4-119 to 4-120.

Accordingly, the fact that a defendant has committed a series of crimes rightfully viewed

as being of the “same or similar character” does not necessarily reflect a larger, continuing

plan. See Moore, 6 S.W.3d at 241. Instead, courts should look to whether there is

“evidence that the defendant had a working plan operating towards the future such as to

make probable the crime with which the defendant is charged.” Denton, 149 S.W.3d at 15;

see also Cohen, supra, § 4.04[12][c], at 4-120.

26

Of course, although the concept of plan stretches as far as the imagination, there are archetypal

examples. For instance, a larger, continuing plan could include a “sequential” plan in which a defendant

commits one offense in preparation for another (e.g., stealing a key to break into a bank), or a “chain” plan

in which a defendant murders various individuals, without regard to sequence, to achieve an overarching

goal to eliminate all those who would take title to land before him. See Leonard, supra, §§ 9.2.1.a., at 562;

9.2.1.b., at 567. We do not believe the record in this case is as clear as those examples.

- 23 -

As for the concept of a common ultimate goal or purpose, we have emphasized that

the larger, continuing plan category contemplates offenses committed in furtherance of a

plan that has a readily distinguishable ultimate goal or purpose, not simply a string of

similar offenses. Denton, 149 S.W.3d at 15. A larger, continuing plan typically “connotes

a series of acts done with a relatively specific goal or outcome in mind.” Leonard, supra,

§ 9.2.2, at 572. The less specific the goal, the greater the chance the plan “in actuality

amounts to no more than a general desire to engage in criminal behavior for personal gain

or satisfaction.” Id. § 9.2.2, at 576. And “the more generalized the plan inference, the

more like character it becomes, and the greater the danger of unfair prejudice from its use

at trial.” Id. § 9.2.1, at 565.

In denying the Defendant’s motion to sever in this case, the trial court took note of

the State’s position that the offenses shared a “common goal, or purpose, to fuel [the

Defendant’s] drug addiction and purchase heroin.” The trial court—noting the State’s

position emphasizing the similarities in methodology of the offenses, the one-month time

frame during which all offenses were committed, and the relatively limited geographic

region where the offenses occurred—stated that the offenses were “so related to each other

that proof of one tends to establish the others.” Ultimately, the trial court concluded that

this “proof shows a ‘working plan, operating towards the future with such force as to make

probable the crime for which the defendant is on trial.’” See Cohen, supra, § 4.04[12][c],

at 4-120. Similarly, in affirming the trial court’s decision, the majority of the Court of

Criminal Appeals concluded that the proof evidenced a common ultimate goal among the

various robberies, namely to provide “money to finance [the Defendant’s] heroin

addiction.” Eady, 2022 WL 7835823, at *28. Like the trial court, the Court of Criminal

Appeals also emphasized the similar methodologies employed in the various robberies, the

time frame, and the geographic reach. Id. at *29.

In our view, the generic shared motivation among the Defendant’s offenses—

needing money to satisfy his heroin addiction—does not go very far in establishing that the

various offenses—robberies in this case—were parts of a larger, continuing plan. See

Prentice, 113 S.W.3d at 332 (stating that “shared motivation for two otherwise unrelated

crimes is not sufficient to establish a ‘common scheme or plan’”). Although a shared

motivation can factor into the determination, if offenses could be joined “simply because

the defendant was inspired by the desire for money, the duty of courts to inquire whether

the offense conduct constituted a ‘common scheme or plan’ would, in most cases, be

rendered meaningless.” United States v. Dileo, 859 F. Supp. 940, 942–43 (W.D. Pa. 1994);

see also Brooks v. Commonwealth, 856 S.E.2d 599, 605 (Va. Ct. App. 2021) (“[T]o find a

‘common plan,’ the goal must be more than mere profit, as profit is often intrinsic to

crime.”).

Similarly, it certainly can be relevant to the existence of a larger, continuing plan

that various offenses are closely connected in time, place, and means of commission. In

- 24 -

this case, however, the similarities in methodology are relatively generic.27 A perpetrator,

who took relatively similar measures to conceal his identity and was armed with a similar-

looking handgun, entered various types of retail businesses that would be expected to have

a cash register and demanded money.28 We acknowledge that the total time frame entailed

eleven offenses spread out over a single month. However, as to the geographic reach, the

record indicates that although the offenses all occurred in Nashville, they occurred in more

than one neighborhood covered by more than one police precinct. In our view, these

characteristics do not reveal a readily distinguishable, relatively specific ultimate goal or

purpose. We do not believe it is enough to show that each offense was “planned” in the

same way. There must be evidence from which to infer an overall plan of which each

robbery is a part. We reiterate that just because a defendant has committed a series of

crimes of the same or similar character does not necessarily reflect a larger, continuing

plan. See Moore, 6 S.W.3d at 241.

We believe the trial court’s severance decision failed to recognize that the

appropriate standard calls for evidence from which it can infer a larger, continuing plan

among the offenses. The offenses in this case were robberies. In this context, we find

instructive the guidance from the Virginia Supreme Court that a common plan entails

offenses “related to one another for the purpose of accomplishing a particular goal,” and

“[t]he key factor . . . is that the goal furthered by the offenses must be extrinsic to at least

one of them.” Walker, 770 S.E.2d at 201; see also Brooks, 856 S.E.2d at 605 (“A common

plan is established ‘when the constituent offenses occur sequentially or interdependently

to advance some common, extrinsic objective.’”); Imwinkelried, supra, 43 U. Kan. Law

Rev. at 1019 (stating that a common plan “ties the offenses together and demonstrates that

the objective of each offense was to contribute to the achievement of a goal not attainable

by the commission of any of the individual offenses”); 1 Kenneth S. Brown, McCormick

on Evidence § 190, at 1034 (7th ed. 2013) (stating that to constitute a common plan, “each

crime should be an integral part of an over-arching plan”).

Because the offenses in this case were robberies, a shared motivation to obtain

money was to be expected. We do not doubt—as the trial court observed—that the goal of

each robbery was to obtain money to satisfy the Defendant’s heroin addiction. That goal,

27

As previously mentioned, the State does not contend that the methodologies of the offenses were

similar enough to reflect a distinctive design or signature crime. Indeed, even considering the left-handed

perpetrator, there was nothing so unique about the methodology of the offenses that would demonstrate a

distinctive design. See Shirley, 6 S.W.3d at 249 (noting that the use of a mask, gloves, and gun to commit

a robbery is not so unusual that reasonable people would conclude that the same person committed all of

the offenses).

28

We note that the victims’ descriptions of the perpetrator varied. Furthermore, although the State

characterizes all of the businesses simply as “convenience stores,” the record shows variations among them,

from a Dollar General to a Walgreens to a CVS to gas stations. Likewise, the record does not reveal any

kind of unifying principle about the timing of the robberies—which varied from mid-afternoon to shortly

after midnight—that would suggest a larger, continuing plan.

- 25 -

however, was completed with each offense. The Defendant’s statement to police indicated

that he was not trying to make a living through robbery. In our view, then, the record does

not establish that the eleven incidents were tied together through an objective “not

obtainable by the commission of any of the individual offenses.” Walker, 770 S.E.2d at

199; see also Imwinkelried, supra, 43 U. Kan. Law Rev. at 1019.

We have recognized that any doubt about the propriety of the consolidation of

similar offenses over a defendant’s objection should be resolved in favor of the defendant.

Garrett, 331 S.W.3d at 403. Based on our review of the record, we do not believe that the

existence of a larger, continuing plan among the various offenses with a readily

distinguishable ultimate goal or purpose reasonably could be inferred from the evidence.

Instead, we believe the evidence in this case reflects simply a string of similar offenses.29

As such, we agree with Judge McMullen that the State did not bear its burden of

establishing the “common scheme or plan” necessary to preclude the Defendant from

severing the offenses. See Denton, 149 S.W.3d at 15; Tenn. R. Crim. P. 14(b)(1). The

offenses certainly were of the “same or similar character,” Tenn. R. Crim. P. 8(b)(2), but a

defendant has an absolute right to sever offenses that are merely of the same or similar

character, Spicer, 12 S.W.3d at 446. Thus, we conclude that the trial court erred in denying

the motion to sever.

Having concluded that the trial court erred in denying the motion to sever, we must

consider the effect of the error. Because the question of whether to grant a severance under

Rule 14(b)(1) is primarily an evidentiary question, the effect of a denial of that right is

evaluated under the same standard as other non-constitutional evidentiary errors. Garrett,

331 S.W.3d at 405; Denton, 149 S.W.3d at 15 (citing Moore, 6 S.W.3d at 242). Thus, a

defendant must show that the error more probably than not affected the judgment or would

result in prejudice to the judicial process before reversal is appropriate. Garrett, 331

S.W.3d at 405; Denton, 149 S.W.3d at 15; see also Tenn. R. App. P. 36(b); State v.

Rodriguez, 254 S.W.3d 361, 371–72 (Tenn. 2008).

It is axiomatic that evidence of multiple crimes can have a significant impact on the

jury. Having heard about one crime, a jury may be more inclined to find the defendant

29

Contrast this case with State v. Edwards, in which the defendant was convicted of multiple

burglary and theft offenses after his motion to sever was denied. State v. Edwards, No. W2014-00987-

CCA-R3-CD, 2015 WL 5169110 (Tenn. Crim. App. Aug. 27, 2015), perm. app. denied, (Tenn. Dec. 11,

2015). The offenses stemmed from break-ins at multiple homes in the same neighborhood during which

various electronics and pieces of jewelry were stolen. The proof included evidence of a generally similar

methodology and a confined geographic reach. Id. at *1–2. However, the proof also included evidence of

notebook pages, seized from the defendant, containing a list of addresses in the relevant neighborhood—

with notes indicating whether those occupants appeared to be out of town—and pawn shop business cards.

Id. at *1. The Court of Criminal Appeals affirmed the denial of a severance, noting that “[t]he list tends to

show that the [d]efendant was casing this Germantown neighborhood to determine when the homes’

occupants were out of town in order to break into the houses and steal property.” Id. at *15. Considering

the evidence as a whole, the court inferred a larger working plan, not simply a string of burglaries. Id.

- 26 -

guilty of another. See Cohen, supra, § 4.04[8][a], at 4-101 (noting the same with respect

to “other crimes” evidence permitted by Rule 404(b)). Nevertheless, we often have

observed that the line between harmless and prejudicial error is in direct proportion to the

degree by which proof exceeds the standard required to convict. Denton, 149 S.W.3d at

15 (citing Delk v. State, 590 S.W.2d 435, 442 (Tenn. 1979)); Spicer, 12 S.W.3d at 447–48.

In other words, “[t]he more the proof exceeds that which is necessary to support a finding

of guilt beyond a reasonable doubt, the less likely it becomes that an error affirmatively

affected the outcome of the trial on its merits.” Toliver, 117 S.W.3d at 231 (quoting State

v. Gilliland, 22 S.W.3d 266, 274 (Tenn. 2000)). Even so, appellate courts must remain

focused not simply on the weight of the evidence, but on “the actual basis for the jury’s

verdict.” Garrett, 331 S.W.3d at 405 (quoting Rodriguez, 254 S.W.3d at 372). “In making

this determination, we consider the whole record and focus on the ‘impact the error may

reasonably be taken to have had on the jury’s decision-making.’” Id. (quoting Rodriguez,

254 S.W.3d at 372).

We can dispense with counts one through seven and nine through twelve with

relative ease. In his statement to police, the Defendant admitted responsibility for each

incident covered by these counts. The Defendant’s statement was admitted at trial, and the

Defendant does not challenge that ruling here. As a result, we have no hesitation in

concluding that the erroneous denial of the motion to sever did not affect the judgment as

to those counts, and we do not believe the Defendant has carried his burden to show

prejudice to the judicial process based on this record.

Count eight, however, is a different matter. Count eight corresponded to the

November 26 incident at the Delta Express on Thompson Lane. The victim, Stella Rice,

was unable to identify the perpetrator. She described him as taller than her (5’7”) and

“probably” about 5’8”, thirty-five to forty years old, weighing 180 pounds. The Defendant

was fifty-four years old, 5’11” tall, and weighed 200 pounds. Although the video

surveillance footage appeared to show the perpetrator holding a gun in his left hand, Ms.

Rice testified that “[i]t was confusing.” Police investigation revealed that the Defendant’s

cell phone communicated with a cell tower in the general area of the store a little over

fifteen minutes after the robbery. Significantly, in contrast to all other counts, the

Defendant did not admit responsibility for count eight, telling police, “I don’t remember

doing one on Thompson Lane.”

“[T]he danger of a jury improperly convicting a defendant for his or her bad

character or apparent propensity or disposition to commit a crime regardless of the strength

of the evidence concerning the offense on trial is particularly strong when the conduct or

acts are similar to the crimes on trial.” Rodriguez, 254 S.W.3d at 376 (internal quotation

marks omitted); see also State v. Jones, 450 S.W.3d 866, 894 (Tenn. 2014) (noting that the

danger of unfair prejudice is especially prevalent with similar crimes, “increasing the

likelihood that ‘[the] jury would convict on the perception of a past pattern of conduct,

instead of on the facts of the charged offense’” (quoting State v. Mallard, 40 S.W.3d 473,

- 27 -

488 (Tenn. 2001)). A heightened risk also may arise where the State’s case is much

stronger against the defendant as to charges arising out of some criminal offenses than as

to another offense. See Dotson, 254 S.W.3d at 389–90 (expressing concern that stronger

evidence as to some incidents could spill over and influence the jury’s willingness to

convict on the charges where the evidence is weaker). Factors weighing against a finding

of harmless error include: (1) conviction on a charge where the evidence is not strong; (2)

factual similarities between the offenses; (3) the State’s intertwining the offenses in

opening statement, during its case-in-chief, or in closing argument; (4) a guilty verdict on

all counts; (5) offenses that are inflammatory in nature; and (6) unusually large and

complex trials. State v. Gallegos, 152 P.3d 828, 840 (N.M. 2007).

With these factors in mind, we turn to examine the Defendant’s conviction on count

eight. First and foremost, we do not believe the evidence supporting the conviction was

strong. The victim could not identify the perpetrator, and the victim’s physical description

of the perpetrator varied somewhat from the Defendant’s actual appearance. It is true that

the Defendant’s cell phone communicated with a cell tower in the general area of the store

a little over fifteen minutes after the robbery, but in light of the paucity of other

incriminating circumstances associated with this particular incident, that evidence hardly

makes the proof of guilt strong. Similarly, the Defendant admitted being left-handed, and

video surveillance footage appeared to show the perpetrator holding a gun in his left hand.

But these circumstances, considered in the isolation of this one incident, likewise hardly

render the proof of guilt strong. Additionally, we note that the charged offenses were the

same, and the methodology of the various offenses shared general similarities. Moreover,

the State stressed these similarities during closing argument to the jury. In particular, after

describing the facts of count eight during closing argument—including the fact that the

Defendant told police he did not remember committing an offense on Thompson Lane—

the State bolstered the proof of this incident by grouping it with the other incidents (for

which there was stronger proof of guilt, given the Defendant’s confessions): “But you guys

saw the video of how this [the November 26 robbery] went down. There can be no doubt

that the same individual committed this robbery that committed the other ones.”30 As

previously mentioned, the Defendant was convicted as charged on all counts. Lastly, we

acknowledge that the offenses were not inflammatory in nature and the trial was not

unusually large and complex.

Under these circumstances, common sense tells us that the jury believed the

Defendant committed the robberies he had confessed to, and that the evidence pertaining

to count eight was made far more credible by the evidence pertaining to the other counts.

Cf. Denton, 149 S.W.3d at 16–17. Thus, consolidation of the offenses into a single trial

“invited the jury to infer the [defendant’s] guilt from a perceived propensity to commit

armed robbery.” Garrett, 331 S.W.3d at 407 (quoting Shirley, 6 S.W.3d at 251) (alteration

30

We do not suggest that the State’s closing argument was improper. After all, the trial court

allowed the offenses to be tried together.

- 28 -

in original). Based on all of the above circumstances, we conclude that the Defendant has

carried his burden of demonstrating that the erroneous failure to sever the offenses more

probably than not affected the judgment on count eight. Accordingly, we reverse the

Defendant’s conviction on count eight and remand to the trial court for a new trial.

III. CONCLUSION

For the foregoing reasons, we hold that the trial court did not err in denying the

Defendant’s motion to disqualify the District Attorney General’s Office from prosecuting

this case. We further hold that the trial court did err in denying the Defendant’s motion to

sever all counts—with the exception of counts one and two as to each other—for trial.

However, we have determined that the error was harmless with respect to all convictions

except the one based on count eight. Accordingly, we affirm the judgment of the Court of

Criminal Appeals with respect to counts one through seven and nine through twelve,

reverse it with respect to count eight, and remand this case to the trial court for a new trial

as to count eight.

Because the Defendant appears to be indigent, the costs of this appeal are taxed to

the State.

_________________________________

JEFFREY S. BIVINS, JUSTICE

- 29 -