Justia.com Opinion Summary: Defendant Cedric Johnson was charged with committing an aggravated robbery and was separately charged with initiating a false police report. Within one month of being indicted for initiating a false police report, Defendant pled guilty to the offense. The trial record revealed that Defendant's car was used in the robbery, and in order to thwart discovery by the police, Defendant reported the car as stolen. The grand jury indicted Defendant for aggravated robbery. Defendant filed a motion to dismiss the robbery indictment, arguing that he had already been prosecuted for filing the false report in connection with the robbery. The trial court granted Defendant's motion, and the State appealed. The issue before the Supreme Court pertained to offenses arising from the same criminal episode. In the Defendant's case, the Court found that the two offenses were not part of the same episode, and therefore, the appellate court erred in affirming the trial court's dismissal of the robbery charge. The Court remanded the case for further proceedings.
Receive FREE Daily Opinion Summaries by Email Court description: This appeal involves the application of the mandatory joinder provisions in Tenn. R. Crim. P. 8(a)(1)(A). The defendant was charged with committing an aggravated robbery and was separately charged with initiating a false police report twelve hours later regarding his automobile that was somehow connected with the robbery. Approximately one month after he was indicted by a Shelby County grand jury for initiating a false police report, the defendant pleaded guilty to attempting to initiate a false police report. Thereafter, a Shelby County grand jury indicted the defendant for aggravated robbery. The defendant filed a motion in the Criminal Court for Shelby County seeking to dismiss the aggravated robbery indictment in accordance with Tenn. R. Crim. P. 8(a)(2) because the State had already prosecuted him separately on the initiation of a false police report charge. The trial court granted the defendant s motion, and the State appealed to the Court of Criminal Appeals. A divided panel of the Court of Criminal Appeals affirmed the trial court s judgment. State v. Johnson, No. W2008-01593-CCA-R3-CD, 2009 WL 4263653 (Tenn. Crim. App. Nov. 30, 2009). We granted the State s application for permission to appeal to address the application of Tenn. R. Crim. P. 8(a)(1)(A) to offenses arising from the same criminal episode. We have determined that the two offenses involved in this case were not part of the same criminal episode and, therefore, that the Court of Criminal Appeals erred by relying on Tenn. R. Crim P. 8(a)(2) to dismiss the aggravated robbery charge.
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IN THE SUPREME COURT OF TENNESSEE
AT MEMPHIS
November 4, 2010 Session
STATE OF TENNESSEE v. CEDRIC JOHNSON
Appeal by Permission from the Court of Criminal Appeals
Criminal Court for Shelby County
No. 08-00199
Chris Craft, Judge
No. W2008-01593-SC-R11-CD - Filed May 26, 2011
This appeal involves the application of the mandatory joinder provisions in Tenn. R. Crim.
P. 8(a)(1)(A). The defendant was charged with committing an aggravated robbery and was
separately charged with initiating a false police report twelve hours later regarding his
automobile that was somehow connected with the robbery. Approximately one month after
he was indicted by a Shelby County grand jury for initiating a false police report, the
defendant pleaded guilty to attempting to initiate a false police report. Thereafter, a Shelby
County grand jury indicted the defendant for aggravated robbery. The defendant filed a
motion in the Criminal Court for Shelby County seeking to dismiss the aggravated robbery
indictment in accordance with Tenn. R. Crim. P. 8(a)(2) because the State had already
prosecuted him separately on the initiation of a false police report charge. The trial court
granted the defendant’s motion, and the State appealed to the Court of Criminal Appeals.
A divided panel of the Court of Criminal Appeals affirmed the trial court’s judgment. State
v. Johnson, No. W2008-01593-CCA-R3-CD, 2009 WL 4263653 (Tenn. Crim. App. Nov. 30,
2009). We granted the State’s application for permission to appeal to address the application
of Tenn. R. Crim. P. 8(a)(1)(A) to offenses arising from the same criminal episode. We have
determined that the two offenses involved in this case were not part of the same criminal
episode and, therefore, that the Court of Criminal Appeals erred by relying on Tenn. R. Crim
P. 8(a)(2) to dismiss the aggravated robbery charge.
Tenn. R. App. P. 11 Appeal by Permission; Judgment of the Court of Criminal
Appeals Reversed
W ILLIAM C. K OCH, J R., J., delivered the opinion of the Court, in which C ORNELIA A. C LARK,
C.J., JANICE M. H OLDER, G ARY R. W ADE, and S HARON G. L EE, JJ., joined.
Robert E. Cooper, Jr., Attorney General and Reporter; Michael E. Moore, Solicitor General;
Lacy Wilber, Assistant Attorney General; William L. Gibbons, District Attorney General;
and Nicole Germain, Assistant District Attorney General, for the appellant, State of
Tennessee.
Claiborne H. Ferguson, Memphis, Tennessee, for the appellee, Cedric Johnson.
OPINION
I.
On April 4, 2007, Di’A Watkins was robbed by two men while he was walking near
the intersection of Midland Avenue and Buntyn Street in Memphis. The two men,
brandishing a firearm, demanded Mr. Watkins’s shoes, cellular phone, and cash. After Mr.
Watkins complied with their demands, his assailants struck him in the head and kicked him
to the ground.
The following day, the Memphis Police Department received a telephone call from
Cedric Johnson reporting that his 1999 Chevrolet Cavalier had been stolen. The officer who
was dispatched to Mr. Johnson’s residence interviewed Mr. Johnson in the presence of Mr.
Johnson’s mother. Mr. Johnson first told the officer that his automobile had been stolen from
his girlfriend’s house during the previous evening. His mother did not believe what Mr.
Johnson had told the officer and began questioning him herself. Mr. Johnson tried several
more times to convince his mother and the officer that his automobile had been stolen.
Eventually, he conceded that he had loaned his automobile to a friend and that his friend had
called to tell him that there was a problem with the automobile and to suggest that he report
that the automobile had been stolen.
At this point, the officer suspected Mr. Johnson’s automobile could have been used
in a robbery. Because Mr. Johnson had admitted to lying about the theft of his automobile,
the officer arrested him for initiating a false police report.1
On April 6, 2007, Mr. Watkins viewed a photographic lineup that included a picture
of Mr. Johnson. After Mr. Watkins identified Mr. Johnson as one of the persons who had
robbed him two days earlier, the authorities arrested Mr. Johnson for aggravated robbery.2
Mr. Johnson later gave a written confession to the robbery of Mr. Watkins.
1
See Tenn. Code Ann. § 39-16-502 (2006).
2
See Tenn. Code Ann. § 39-13-402(a) (2006).
-2-
On May 22, 2007, the Shelby County General Sessions Court conducted a preliminary
hearing on Mr. Johnson’s aggravated robbery charge. The general sessions court found
sufficient probable cause, bound the case over to the Shelby County grand jury, and set Mr.
Johnson’s bail at $100,000. The preliminary hearing on the false police report charge was
held on May 23, 2007. At that time, the general sessions court dismissed the false police
report charge for lack of prosecution.
On December 11, 2007, the Shelby County grand jury indicted Mr. Johnson for
initiating a false police report. On January 8, 2008, Mr. Johnson pleaded guilty to the lesser
included offense of criminal attempt to make a false police report and received a one-year
sentence.
The Shelby County grand jury indicted Mr. Johnson for aggravated robbery on
January 15, 2008. Mr. Johnson moved to dismiss this indictment on April 11, 2008, arguing
that the offenses of aggravated robbery and making a false police report were required to be
consolidated in accordance with Tenn. R. Crim. P. 8(a)(1)(A) because they arose from the
same conduct. Following a hearing on May 6, 2008, the Criminal Court for Shelby County
filed an order on June 27, 2008, concluding that “it seems clear that the false report of the
auto theft shortly after the commission of the aggravated robbery was part of the same
criminal episode, though not the same conduct” and that “[t]hese two offenses should have
been consolidated in the same indictment.” Accordingly, the trial court dismissed the
aggravated robbery indictment against Mr. Johnson.
The State appealed from the dismissal of the aggravated robbery indictment. The
majority of the Court of Criminal Appeals panel that heard the case acknowledged that the
two offenses were separated by both time and place and that “the two offenses do not
necessarily involve proof of each other.” State v. Johnson, No. W2008-01593-CCA-R3-CD,
2009 WL 4263653, at *8-9 (Tenn. Crim. App. Nov. 30, 2009). Nevertheless, the majority
affirmed the dismissal of the aggravated robbery indictment based on its belief that doing so
was required by Tenn. R. Crim. P. 8(a)’s policy of “avoid[ing] piecemeal litigation.” State
v. Johnson, 2009 WL 4263653, at *9 (quoting State v. Baird, 88 S.W.3d 617, 621 (Tenn. Ct.
App. 2001).
Judge Alan Glenn filed a dissenting opinion. State v. Johnson, 2009 WL 4263653,
at *9-11 (Glenn, J., dissenting). Judge Glenn disagreed with the majority’s decision that the
two offenses arose out of the same criminal episode because (1) either crime could be
prosecuted without proof of the other and (2) one of the offenses – the aggravated robbery
– had been completed before the other offense had begun. State v. Johnson, 2009 WL
4263653 at *10-11 (Glenn, J., dissenting).
-3-
We granted the State’s application for permission to appeal to determine whether
Tenn. R. Crim. P. 8(a)(1)(A) required that the two offenses committed by Mr. Johnson be
consolidated for trial. We have determined that the majority of the Court of Criminal
Appeals erred by finding that Mr. Johnson’s initiating a false police report offense and
aggravated robbery offense were part of the same criminal episode.
II.
The parties agree that all the facts relevant to the issues in this case are undisputed.
Thus, this case involves solely the proper application of Tenn. R. Crim. P. 8 to the undisputed
facts. Issues regarding the construction and interpretation of rules of court, including the
Tennessee Rules of Criminal Procedure, involve questions of law. See Lacy v. Cox, 152
S.W.3d 480, 483 (Tenn. 2004); Green v. Moore, 101 S.W.3d 415, 418 (Tenn. 2003).
Therefore, we review the lower courts’ construction of the rules de novo with no
presumption of correctness, State v. Ferrante, 269 S.W.3d 908, 911 (Tenn. 2008), using
essentially the same rules of construction that courts employ to construe statutes. State v.
Crowe, 168 S.W.3d 731, 744 (Tenn. 2005).
III.
The principles regarding joinder and severance of criminal offenses for trial are
relatively undeveloped because “relatively few criminal cases go to trial” and because
“neither the prosecution nor the defense has developed a consistent institutional position with
respect to joinder and severance.”3 Both the prosecution’s and the defendant’s decisions
regarding joinder and severance are influenced by a range of practical and tactical factors,
including the merits of the individual cases, the readiness of the cases for trial, the
“defendant’s right to a fair trial before an impartial jury (uninfluenced by evidence of other
offenses),” the cost and delay of multiple trials, and the desire to resolve all the charges with
dispatch.4 Accordingly, as the ABA Standards for Criminal Justice point out:
If prosecutors and defendants have difficulty deciding
whether joinder or severance is more advantageous in a
particular case, it is not surprising that judges have difficulty in
evolving and articulating standards or rules for resolving the
3
2 ABA Standards for Criminal Justice: Joinder and Severance, at 13@4 (2d ed. 1980) (“ABA
Standards for Criminal Justice”).
4
2 ABA Standards for Criminal Justice, at 13@4-13@5.
-4-
conflicts that occur when the prosecution and defense reach
opposite conclusions in the same case.
2 ABA Standards for Criminal Justice, at 13@5.
Early on, the prevailing view – animated by the belief that trial courts were charged
with safeguarding the rights of both the prosecution and the defendant – left decisions
regarding the consolidation of charges, even charges involving separate and distinct crimes,
to the sound discretion of the trial court.5 These discretionary decisions were rarely
overturned. State v. Shirley, 6 S.W.3d 243, 245-46 (Tenn. 1999). However, a minority of
states, including Tennessee,6 held that charges involving separate and distinct crimes – not
arising out of the same or related acts or not provable by the same evidence – should not be
consolidated over the defendant’s objection.7
The principles governing the joinder or consolidation of offenses were codified in the
Tennessee Rules of Criminal Procedure, which first became effective on July 13, 1978.8
Currently, the principles governing the joinder or consolidation of offenses are found in
Tenn. R. Crim. P. 8 regarding the joinder of offenses and defendants, and the complementary
provisions of Tenn. R. Crim. P. 13 and 14 regarding the consolidation or severance of
offenses and defendants.
Tenn. R. Crim. P. 8 embodies a significant departure from the earlier court-made
principles governing joinder of offenses. Prior to Tenn. R. Crim. P. 8’s adoption, Tennessee
law, like the rules governing the federal courts and a majority of state courts,9 merely
permitted the joinder of related offenses. Tenn. R. Crim. P. 8(a), however, requires the State
to join certain categories of offenses in order to “promote efficiency and economy” by
“encourag[ing] the disposition in a single trial of multiple offenses arising from the same
5
See 2 ABA Standards for Criminal Justice, at 13@4; M.C. Dransfield, Annotation, Consolidated Trial
upon Several Indictments or Informations Against Same Accused, Over His Objection, 59 A.L.R.2d 841, 845
(1958) (“Dransfield”).
6
Bruce v. State, 213 Tenn. 666, 667, 670, 378 S.W.2d 758, 759-60 (1964).
7
See Bullard v. State, 208 Tenn. 641, 644-46, 348 S.W.2d 303, 305 (1961); see also Commonwealth
v. Bickum, 26 N.E. 1003, 1003 (Mass. 1891); Dransfield, 59 A.L.R.2d at 858-59 (cataloging the states that
disallow consolidation over the defendant’s objection).
8
See Tenn. R. Crim. P. 59 advisory comm’n cmt.
9
See Fed. R. Crim. P. 8(a); 2 Nancy Hollander et al., Wharton’s Criminal Procedure § 11:2, at 11-6
to 11-7 (14th ed. 2010); 5 Wayne R. LaFave et al., Criminal Procedure § 17.1(a), at 2 (3d ed. 2007).
-5-
conduct and from the same criminal episode.”10 One of the purposes of the mandatory
joinder requirements in Tenn. R. Crim. P. 8(a) is to stop the practice by some prosecuting
attorneys of “saving back” charges because this practice necessitates multiple trials and
adversely affects discovery, plea bargaining, and other pre-trial procedures. State v. Baird,
88 S.W.3d 617, 621 (Tenn. Ct. App. 2001); State v. Fowler, No. 03C01-9207-CR-00249,
1993 WL 278468, at *7 (Tenn. Crim. App. July 27, 1993); Tenn. R. Crim. P. 8 advisory
comm’n cmt.
Tenn. R. Crim. P. 8(a)(1) states:
Two or more offenses shall be joined in the same
indictment, presentment, or information, with each offense
stated in a separate count, or the offenses consolidated pursuant
to Rule 13, if the offenses are:
(A) based on the same conduct or arise from the same
criminal episode;
(B) within the jurisdiction of a single court; and
(C) known to the appropriate prosecuting official at the
time of the return of the indictment(s), presentment(s), or
information(s).
The failure by the State to join all the “same conduct” or “same criminal episode” offenses
in the original indictment prevents the State from subsequently prosecuting the other charges
that should have been included in the original indictment unless the charges have been
severed in accordance with Tenn. R. Crim. P. 14(b)(2).11 Tenn. R. Crim. P. 8(a)(2); Tenn.
R. Crim. P. 8 advisory comm’n cmt. (stating that charges that have been saved back “are
barred from future prosecution if known to the appropriate prosecuting official at the time
that the other prosecution is commenced, but deliberately not presented to a grand jury”); see
also King v. State, 717 S.W.2d 306, 308 (Tenn. Crim. App. 1986).12
10
Tenn. R. Crim. P. 8 advisory comm’n cmt.
11
Tenn. R. Crim. P. 14(b)(2) provides the criteria for severing offenses that have been mandatorily
joined pursuant to Tenn. R. Crim. P. 8(a)(1). The criteria for severing mandatorily joined offenses are not
at issue in this case.
12
In addition to the mandatory joinder requirements in Tenn. R. Crim. P. 8(a), the Tennessee Rules
of Criminal Procedure continue to permit permissive joinder of certain categories of offenses. Tenn. R.
Crim. P. 8(b) provides that:
(continued...)
-6-
The mandatory joinder provisions in Tenn. R. Crim. P. 8(a)(1) apply only to “same
conduct” and “same criminal episode” offenses. Offenses arising out of the same conduct
are the most easily understood. The simplest example of a same conduct offense involves
a single act that results in a number of interrelated offenses. Thus, a defendant’s rape of his
daughter13 or a defendant’s firing of a single gunshot that hits two victims are examples of
multiple offenses precipitated by the same act or conduct. See 2 ABA Standards for Criminal
Justice § 13-1.2 cmt., at 13@9 (citing Scott v. State, 248 N.W. 473 (Wis. 1933)); 9 David
Louis Raybin, Tennessee Practice: Criminal Practice and Procedure § 17:16, at 595 (rev.
ed. 2008) (“Tennessee Criminal Practice and Procedure”).14
The concept of the “same criminal episode” entered the judicial lexicon in Tennessee
in 1973, five years before the Tennessee Rules of Criminal Procedure became effective.
Duchac v. State, 505 S.W.2d 237, 240 (Tenn. 1973). The issue in the case did not involve
the joinder or severance of offenses but rather the identity of the offenses of third degree
burglary and carrying burglarious instruments. Duchac v. State, 505 S.W.2d at 238. The
Court concluded that “the mere fact that both offenses grew out of a single criminal episode
does not make them a single offense in this particular case” because “none of the evidence
required to prove carrying burglarious instruments is necessary to prove commission of third
degree burglary.” Duchac v. State, 505 S.W.2d at 240.15
12
(...continued)
Two or more offenses may be joined in the same indictment, presentment, or
information, with each offense stated in a separate count, or consolidated pursuant to Rule
13, if:
(1) the offenses constitute parts of a common scheme or plan; or
(2) they are of the same or similar character.
However, a defendant has a right to insist on the severance of permissively joined 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); State v. Dotson, 254 S.W.3d 378, 386 (Tenn. 2008). This case does
not directly implicate the criteria for permissive joinder.
13
See State v. Rogers, 703 S.W.2d 166, 168 (Tenn. Crim. App. 1985) (charges of both rape and
incest).
14
A more complex example of same conduct offenses could arise from a course of conduct such as
when “the same series of physical acts generates charges of resisting arrest and assault.” Same conduct
offenses may also be committed by multiple defendants, such as when “one defendant commits the offense
at the instigation of another defendant.” 2 ABA Standards for Criminal Justice § 13-1.2 cmt., at 13@9.
15
The Court employed the same phrase two years later when it held that the offenses of armed
robbery and assault with intent to commit second degree murder were not identical, even though they were
(continued...)
-7-
The Court did not undertake to define “single criminal episode” in either Duchac v.
State or State v. Black, nor did the drafters of the Tennessee Rules of Criminal Procedure.
However, the American Bar Association Standards for Criminal Justice that were approved
in 1978 contain the following definition:
“Single criminal episode” offenses normally are generated by
separate physical actions. The actions may be committed by
separate defendants. In other respects, however, they are similar
to same conduct offenses: they occur simultaneously or in close
sequence, and they occur in the same place or in closely situated
places.16 A critical characteristic of single episode offenses,
particularly in cases involving otherwise unrelated offenses 17 or
offenders, is the fact that proof of one offense necessarily
involves proof of the others.
2 ABA Standards for Criminal Justice § 13-1.2 cmt., at 13@10 (footnotes added).18 In the
three decades following the promulgation of the Tennessee Rules of Criminal Procedure, the
Court of Criminal Appeals has quoted the commentary to Standard 13-1.2 with approval,19
15
(...continued)
committed “in the course of a single ‘criminal episode’” because the statutory elements of the two offenses
were different and because neither offense was included in the other. State v. Black, 524 S.W.2d 913, 920
(Tenn. 1975).
16
A treatise on Tennessee criminal practice and procedure contains the following similar description
of a criminal episode: “[a] ‘criminal episode’ . . . relates to several distinct offenses which arise out of
separate actions or conduct but which occur in a closely connected series of events in place and time.” 9
Tennessee Criminal Practice and Procedure § 17:16, at 595. The treatise also aptly describes a criminal
episode as involving “offenses where there is an unbroken flow of events divisible into distinct crimes where
the same evidence proposition is self evident.” 9 Tennessee Criminal Practice and Procedure § 17:17, at
601.
17
Under the ABA Standards for Criminal Justice, “[u]nrelated offenses” are “any offenses which are
not ‘related’ offenses.” 2 ABA Standards for Criminal Justice § 13-1.3, at 13@10. “Two or more offenses
are related offenses if they are based upon the same conduct, upon a single criminal episode, or upon a
common plan.” 2 ABA Standards for Criminal Justice § 13-1.2, at 13@9.
18
The term “single criminal episode” is also incorporated into the Model Penal Code and the Uniform
Rules of Criminal Procedure. See Model Penal Code § 1.07(2), 10A U.L.A. 36 (2001); Unif. Rules of
Criminal Procedure Rule 471(a) (1987), 10 U.L.A. 148 (2001).
19
State v. Baird, 88 S.W.3d at 621; see also State v. Gentry, No. E2005-01133-CCA-R3-CD, 2006
WL 891211, at *3 (Tenn. Crim. App. Apr. 4, 2006) (No Tenn. R. App. P. 11 application filed); State v.
(continued...)
-8-
but neither this Court nor the Court of Criminal Appeals has undertaken to provide a more
precise definition of “same criminal episode.” 20
We have determined that the criteria for a “single criminal episode” found in the ABA
Standards for Criminal Justice is consistent with our understanding of Tenn. R. Crim. P.
8(a)(1)(A) and that it should be adopted. Our review of the decisions handed down by
Tennessee’s courts since Tenn. R. Crim. P. 8 first became effective in 1978 convinces us that
the courts have appropriately recognized that for Tenn. R. Crim. P. 8(a)(1)(A) to apply, the
acts to be included in the same criminal episode must occur simultaneously or in close
sequence and must occur in the same place or in closely situated places. A break in the
action may be sufficient to interrupt the temporal proximity required for a single criminal
episode to exist. See 9 Tennessee Criminal Practice and Procedure § 17:17, at 601.
The judicial decisions, however, do not reflect adequate emphasis on the requirement
that in order for a single criminal episode to exist, the “proof of one offense necessarily
involves proof of the others.” 2 ABA Standards for Criminal Justice § 13-1.3 cmt., at 13@10.
This means that the proof of one offense must be “inextricably connected” with the proof of
the other, see State v. Shepherd, 902 S.W.2d 895, 904 (Tenn. 1995), or that the proof of one
offense forms a “substantial portion of the proof” of the other offense. See United States v.
Montes-Cardenas, 746 F.2d 771, 776 (11th Cir. 1984). While the offenses need not be based
solely on the same facts, requiring a substantial interrelationship between the evidence
required to prove each of several offenses “properly focuses the trial court’s inquiry on the
degree to which the defendant is harassed and judicial resources wasted by successive
prosecutions.” People v. Rogers, 742 P.2d 912, 919 (Colo. 1987) (en banc).
As the Colorado Supreme Court has pointed out, separate trials for crimes that do not
share a substantial factual nexus do not prejudice the defendant. People v. Rogers, 742 P.2d
at 919. However, when “the proof or defense of one charge necessarily involves the proof
or defense of another charge, sequential prosecutions of the two charges burden both the
defendant and the state with repetitive presentation of evidence.” People v. Rogers, 742 P.2d
at 919.
19
(...continued)
Kestner, No. M2004-02478-CCA-R3-CD, 2006 WL 359698, at *5 (Tenn. Crim. App. Feb. 10, 2006), perm.
app. denied (Tenn. June 26, 2006).
20
One commentator has observed that the phrase “criminal episode” is “difficult of definition.” 9
Tennessee Criminal Practice and Procedure § 17:16, at 595.
-9-
IV.
We now apply these principles to the essentially undisputed facts of this case. We
have determined that the two charges against Mr. Johnson were not part of the same criminal
episode because, based on the facts of this case, they did not occur simultaneously or in close
sequence and did not occur in the same place or in closely situated places. Mr. Johnson
initiated the false police report twelve hours after he had allegedly robbed Mr. Watkins. The
record does not directly address what transpired between the alleged robbery and the
initiation of the false police report. Accordingly, there is no basis for concluding whether
a break in the action interrupted the temporal proximity of the two offenses. Likewise, the
record fails to demonstrate that the two offenses occurred in the same place or in closely
situated places.
Furthermore, the proof of the aggravated robbery does not necessarily involve, and
is not inextricably connected to, the proof of initiation of a false report to a law enforcement
officer. The record reveals that Mr. Watkins identified Mr. Johnson as one of his assailants
in a photographic lineup conducted at the police department. In order to prove the
aggravated robbery, the State is likely to call Mr. Watkins as a witness to identify Mr.
Johnson as one of his assailants and testify regarding the robbery. The State would also
likely present as critical evidence Mr. Johnson’s written confession to the robbery.
Had Mr. Johnson not pleaded guilty to a lesser included offense, the evidence that the
State would likely have used to attempt to prove initiation of a false police report is largely
distinct from the evidence necessary to prove aggravated robbery. The evidence necessary
to prove initiation of a false police report includes Mr. Johnson’s phone call to the Memphis
Police Department reporting that his automobile had been stolen and the resulting interview
conducted by a police officer at Mr. Johnson’s mother’s residence. During the course of the
police interview with Mr. Johnson regarding his reportedly stolen automobile, Mr. Johnson’s
mother became convinced that her son was lying. She began questioning Mr. Johnson
herself. Although he attempted to maintain his false story, he eventually conceded that he
lied about the automobile being stolen, leading to his arrest for initiating a false police report.
Most of the foregoing facts could be supported by the State with the testimony of the
responding police officer and possibly Mr. Johnson’s mother.
At best, the evidence of each alleged offense is relevant to support the other offense,
but more than mere relevancy is required. We are unable to conclude that
the evidence necessary to prove these two offenses is so inextricably connected as to require
the proof of one of the alleged crimes to prove the other. Thus, the record simply does not
support the conclusion of the Court of Criminal Appeals that the two charges against Mr.
-10-
Johnson arose from the same criminal episode and, therefore, that the aggravated robbery
charge against Mr. Johnson must be dismissed.
V.
The judgment of the Court of Criminal Appeals affirming the trial court’s dismissal
of the aggravated robbery charge against Mr. Johnson is reversed, and the case is remanded
to the trial court for further proceedings consistent with this opinion. We tax the costs of this
appeal to Cedric Johnson for which execution, if necessary, may issue.
______________________________
WILLIAM C. KOCH, JR., JUSTICE
-11-
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