COURT OF CRIMINAL APPEALS OPINIONS

William Brian Belser v. State of Tennessee
E2001-01541-CCA-R3-CD
Authoring Judge: Presiding Judge Gary R. Wade
Trial Court Judge: Judge Ray L. Jenkins

The petitioner, William Brian Belser, appeals the trial court's denial of his petition for post-conviction relief. In this appeal, the petitioner asserts that he was denied the effective assistance of counsel at trial. The judgment of the trial court is affirmed.

State of Tennessee v. Michael Shane Powell
E2001-01544-CCA-R3-CD
Authoring Judge: Judge David H. Welles
Trial Court Judge: Judge Stephen M. Bevil

The Defendant, Michael Shane Powell, was convicted by a jury of first degree felony murder by aggravated child abuse, and aggravated child abuse. The trial court subsequently sentenced the Defendant to life imprisonment for the murder, and to a concurrent term of twenty years for the aggravated child abuse. In this direct appeal, the Defendant challenges the sufficiency of the evidence; the admission of proof of a prior alleged instance of child abuse; and the constitutionality of his dual convictions for felony murder by aggravated child abuse, and aggravated child abuse. We affirm the judgments of the trial court.

State of Tennessee v. Robyn Renee Rainer
E2001-01677-CCA-R3-CD
Authoring Judge: Judge David H. Welles
Trial Court Judge: Judge D. Kelly Thomas, Jr.

The Defendant, Robyn Renee Rainer, pled guilty to one count of possession of cocaine with intent to sell and deliver. Her plea agreement included an agreed sentence of eight years as a Range I standard offender, with the manner of service to be imposed by the trial court. After a hearing, the trial court placed the Defendant on community corrections. Following the Defendant's second violation of the terms of her community corrections sentence, the trial court revoked the Defendant's community corrections status and ordered that her sentence be served in the Department of Correction. The Defendant now appeals the trial court's ruling. We affirm the judgment of the trial court.

State of Tennessee v. James C. McFall
E2001-02712-CCA-R3-CD
Authoring Judge: Judge David H. Welles
Trial Court Judge: Judge James E. Beckner

The Defendant, James McFall, was found guilty by a jury of violating a motor vehicle habitual offender order. The trial court subsequently sentenced the Defendant as a multiple, Range II offender to three years in the Department of Correction, to be served consecutively to a prior sentence. The Defendant now appeals, challenging the sufficiency of the indictment; the sufficiency of the evidence; the trial court's instructions to the jury; and the efficacy of the State's Notice of Intent to Seek Enhanced Punishment. We affirm the judgment of the trial court.

State of Tennessee v. Edward Korick
E2000-02474-CCA-R3-CD
Authoring Judge: Judge Joseph M. Tipton
Trial Court Judge: Judge James B. Scott, Jr.

The defendant, Edward Korik, appeals the Anderson County Criminal Court's ordering him to serve forty-five days in jail for his guilty plea to driving under the influence (DUI), second offense, a Class A misdemeanor. He contends that this court should remand his case to the general sessions court, where it originated, with orders that the general sessions court consider his request for work release instead of incarceration. We affirm the judgment of the trial court.

David Boese v. State of Tennessee
E2001-00035-CCA-R3-PC
Authoring Judge: Judge John Everett Williams
Trial Court Judge: Judge Carroll L. Ross

Petitioner pled guilty in state court to second degree murder and aggravated assault. Petitioner contends he was told by trial counsel that a pending first degree murder charge in state court would result in incarceration for life without parole in federal court on related charges. He asserts that trial counsel's performance was deficient resulting in unknowing and involuntary guilty pleas. We disagree and affirm.

State of Tennessee v. Shannon Wade Jacobs
M2001-00349-CCA-R3-CD
Authoring Judge: Judge John Everett Williams
Trial Court Judge: Judge Robert L. Holloway
Defendant was convicted of second degree murder, a Class A felony. On appeal, defendant contends that the trial court improperly excluded defendant's medical records and improperly sentenced defendant. We affirm the judgment of the trial court.

State of Tennessee v. Timothy Tyrone Sanders
M2001-02128-CCA-R3-CD
Authoring Judge: Judge Norma McGee Ogle
Trial Court Judge: Judge W. Charles Lee

The appellant, Timothy Tyrone Sanders, was convicted in the Bedford County Circuit Court of one count of possession of .5 grams or more of cocaine with intent to sell. On direct appeal, this court reversed the appellant's conviction because the trial court failed to properly charge the jury on the lesser-included offense of simple possession, and we remanded the case for retrial. State v. Timothy Tyrone Sanders, No. M2000-00603-CCA-R3-CD, 2001 Tenn. Crim. App. LEXIS 38, at **13-14 (Nashville, January 18, 2001). Subsequently, the appellant was once again convicted of possession of cocaine with intent to sell. The trial court sentenced the appellant as a Range II offender to seventeen years and six months incarceration in the Tennessee Department of Correction. In the instant appeal, the appellant raises the following issues: (1) whether the evidence is sufficient to sustain his conviction, and (2) whether the trial court erred in determining the length of his sentence. Upon review of the record and the parties' briefs, we affirm the judgment of the trial court.

State of Tennessee v. James Robert Lawson
E2001-01415-CCA-R3-CD
Authoring Judge: Judge Robert W. Wedemeyer
Trial Court Judge: Judge R. Jerry Beck

The Defendant pled guilty to one count of child abuse, a Class D felony. Following a hearing, the trial court denied judicial diversion. The trial court sentenced the Defendant as a Range I, standard offender to two years to be served on intensive probation. The Defendant now appeals, arguing that the trial court erred by denying him judicial diversion and by imposing as a condition of his probation that he not reside in the same household with children of "tender years." Finding no error, we affirm the judgment of the trial court.

State of Tennessee v. Derrick Wayne Kembel
E2001-02087-CCA-R3-CD
Authoring Judge: Judge Norma McGee Ogle
Trial Court Judge: Judge D. Kelly Thomas, Jr.
The appellant, Derrick Wayne Kembel, entered guilty pleas in the Blount County Circuit Court to seven counts of theft and was granted immediate probation. Soon thereafter, the trial court revoked the appellant's probation due to the appellant's failure to comply with the terms of his release. On appeal, the appellant contends that the trial court erred when it revoked his probation and sentenced him to serve the balance of his sentence in incarceration. Upon review of the record and the parties' briefs, we affirm the judgment of the trial court.

State of Tennessee v. Ronnie Daniel
M2001-01217-CCA-R3-CD
Authoring Judge: Judge Joe G. Riley
Trial Court Judge: Judge Stella L. Hargrove

On March 6, 1997, the defendant pled guilty to a two-count indictment for passing worthless checks in an amount over $10,000, a Class C felony, and in an amount over $1,000, a Class D felony. He was granted judicial diversion and placed on probation. The trial court subsequently revoked the defendant's diversion and sentenced him to concurrent sentences of four years and six months for the Class C felony and two years for the Class D felony, all suspended except seven months service in the county jail. In this appeal, the defendant contends he should have received full probation or community corrections upon being revoked from judicial diversion. We disagree and affirm the judgment of the trial court.

State of Tennessee v. Don Woody McGowan
M2001-02866-CCA-R3-CD
Authoring Judge: Judge Thomas T. Woodall
Trial Court Judge: Judge Thomas W. Graham

Defendant, Don Woody McGowan, was convicted by a Marion County jury of possession of drug paraphernalia, a Class E felony. Defendant appeals his conviction, presenting the following issues for review: (1) whether the evidence was sufficient to support his conviction; (2) whether he was denied a fair trial by the trial court's denial of his motion to sever the cases when the co-defendant failed to appear on the second day of trial; (3) whether the trial judge erred by failing to recuse himself; and (4) whether his sentence was proper. After a review of the record, we find that the evidence was insufficient to sustain the conviction. The judgment of the trial court is reversed, and the case is dismissed.

State of Tennessee v. Barry K. Harris
M2001-01359-CCA-R3-CD
Authoring Judge: Judge John Everett Williams
Trial Court Judge: Judge Donald P. Harris

The defendant was convicted of theft over $500.00, two counts of theft over $1000.00, and driving on a suspended license with prior convictions. He was given an effective sentence of eighteen years in the Department of Correction. The defendant contends that the sentence imposed by the trial court is excessive. The trial court followed the statutory sentencing procedure, imposed a lawful sentence after considering and weighing the proper factors and principles set out under sentencing law, and the trial court's findings of fact are supported by the record. Accordingly, we affirm the judgment of the trial court.The defendant was convicted of theft over $500.00, two counts of theft over $1000.00, and driving on a suspended license with prior convictions. He was given an effective sentence of eighteen years in the Department of Correction. The defendant contends that the sentence imposed by the trial court is excessive. The trial court followed the statutory sentencing procedure, imposed a lawful sentence after considering and weighing the proper factors and principles set out under sentencing law, and the trial court's findings of fact are supported by the record. Accordingly, we affirm the judgment of the trial court.

John C. Tomlinson v. State of Tennessee
M2001-02152-CCA-R3-CO
Authoring Judge: Judge Joe G. Riley
Trial Court Judge: Judge Steve R. Dozier
The petitioner appeals the trial court's denial of the appointment of counsel and the dismissal of his petition for writ of habeas corpus. For many and varied reasons, we affirm.

Rodney D. Palmer v. State of Tennessee
W2001-01571-CCA-R3-PC
Authoring Judge: Judge Robert W. Wedemeyer
Trial Court Judge: Judge Chris B. Craft

A Shelby County jury convicted the Petitioner of attempted second degree murder, a Class B felony, and three counts of aggravated assault, a Class C felony. The trial court ordered the Petitioner to serve an effective twenty-six-year sentence in the Tennessee Department of Correction. This Court affirmed the Petitioner's convictions on appeal, and the Tennessee Supreme Court denied permission to appeal. The Petitioner filed a petition for post-conviction relief. Following a hearing, the court denied post-conviction relief. The Petitioner now appeals the denial of post-conviction relief. Finding no error, we affirm the judgment of the post-conviction court.

State of Tennessee v. Thomas Dee Huskey
E1999-00438-CCA-R3-CD
Authoring Judge: Judge Joseph M. Tipton
Trial Court Judge: Judge Richard R. Baumgartner

The defendant, Thomas Dee Huskey, appeals as of right from his convictions and sentences for aggravated rape, rape, aggravated robbery, robbery, especially aggravated kidnapping, and aggravated kidnapping, for which he received an aggregate sentence of sixty-six years. The convictions relate to four victims and result from two trials that were consolidated for this appeal. The defendant raises numerous issues. Although we conclude that several errors occurred, only one requires reversal of any convictions. Because of improper consolidation, we reverse the judgments for the three aggravated rape convictions and one especially aggravated kidnapping conviction relating to the victim, D.C., but we affirm the remaining judgments of conviction.

State of Tennessee v. Steven Murray
E2000-02878-CCA-R3-CD
Authoring Judge: Judge Thomas T. Woodall
Trial Court Judge: Judge E. Eugene Eblen
In this case, the Defendant, Steven Murray, pled guilty to assault. The Criminal Court of Roane County sentenced Defendant to serve the agreed-upon 11 months and 29 days, suspended, on supervised probation, and ordered restitution in the amount of $10,622.75. In his sole issue on appeal, Defendant asserts that the trial court erred in the amount of restitution ordered and requests that the order of restitution be set aside and this case remanded for a new hearing. We have found a clerical error in the order setting forth the conditions of probation and remand for correction of that order. Otherwise, the judgment of the criminal court is affirmed.

Rodney Tipton v. State of Tennessee
E2001-00001-CCA-R3-PC
Authoring Judge: Judge David G. Hayes
Trial Court Judge: Judge D. Kelly Thomas, Jr.
The Appellant, Rodney Lee Tipton, proceeding pro se, appeals from the dismissal of his petition for post-conviction relief. Tipton was convicted by a Blount County jury of aggravated rape and aggravated robbery and received an effective thirty-three year sentence in the Department of Correction. On appeal, Tipton argues that he should receive a new trial based upon the following grounds: (1) the State’s refusal to respond to his discovery requests, and the post-conviction court’s failure to address his motion to compel discovery; (2) denial of the right to represent himself at his post-conviction hearing; (3) denial of his right to testify at trial; (4) ineffective assistance of counsel; (5) prosecutorial misconduct; (6) actual innocence; (7) the cumulative effect of all errors; and (8) the post-conviction court’s failure to enter specific findings of fact and conclusions of law. After a review of the record, we affirm the dismissal of Tipton’s petition for post-conviction relief.

State of Tennessee v. Rhonda Patricia Mayes - Order
M2001-00423-CCA-R3-CD
Authoring Judge: Judge John Everett Williams

The opinion and judgment entered June 24, 2002, are hereby VACATED and WITHDRAWN. A corrected opinion and judgment will be filed in due course.

State of Tennessee v. Steven Lee Whitehead
W2002-00484-CCA-RM-CD
Authoring Judge: Judge David H. Welles
Trial Court Judge: Judge Roy B. Morgan, Jr.
The Defendant, Steven Lee Whitehead, was convicted by a jury of three counts of rape. The trial court subsequently sentenced the Defendant to ten years in the Department of Correction for each conviction, with the sentences running concurrently. On direct appeal by the Defendant, this Court reversed all three convictions due to the trial court’s failure to instruct the jury on sexual battery as a lesser-included offense of rape. See State v. Steven Lee Whitehead, No. W2000-01062-CCA-R3-CD, 2001 Tenn. Crim. App. LEXIS 732, at *68-69 (Jackson, Sept. 7, 2001). The State then filed an application for permission to appeal to our supreme court pursuant to Tennessee Rule of Appellate Procedure 11. The supreme court granted the State’s application for the sole purpose of remanding the case to this Court for reconsideration in light of its recent opinion in State v. Allen, 69 S.W.3d 181 (Tenn. 2002). Upon reconsideration, we again reverse the Defendant’s three convictions of rape and remand this matter for a new trial.

State of Tennessee v. Steven Lee Whitehead - Dissenting
W2002-00484-CCA-RM-CD
Authoring Judge: Judge Norma McGee Ogle
Trial Court Judge: Judge Roy B. Morgan, Jr.

Because I have no difficulty concluding that the trial court’s failure to instruct the jury on sexual battery constitutes harmless error according to the standard enunciated in State v. Allen, 69 S.W.3d 181, 191 (Tenn. 2002), I must respectfully dissent from the majority’s reversal of the appellant’s convictions of rape. As acknowledged by the majority, our supreme court emphasized in Allen that, “[w]hen a lesser-included offense instruction is improperly omitted, . . . the harmless error inquiry is the same as for other constitutional errors” and entails an examination of both the evidence adduced at trial and the defendant’s theory of defense. Id. As also acknowledged by the majority, RB unequivocally testified at trial that the appellant’s sexual assault upon her included three separate acts of sexual penetration, and her testimony was uncontradicted with the exception of the appellant’s statements to the police denying any sexual activity whatsoever between himself and RB. In other words, the appellant’s defense in this case did not hinge upon the nature of the sexual activity between himself and RB but rather upon whether any sexual activity occurred. Accordingly, with respect to the evidence underlying each count of rape, the appellant was either guilty of the charged offense or entirely innocent. Under these circumstances, the trial court’s failure to instruct the jury on sexual battery should not afford the appellant relief.

William R. Diaz v. State of Tennessee
E2001-00661-CCA-R3-PC
Authoring Judge: Judge Joseph M. Tipton
Trial Court Judge: Judge James B. Scott, Jr.

The petitioner, William R. Diaz, appeals the Anderson County Criminal Court's denial of his petition for post-conviction relief, claiming that he received the ineffective assistance of counsel. He contends that his trial attorney was ineffective for (1) failing to file a motion to suppress his statement to the police on the grounds that it was coerced and (2) failing to file a motion to suppress evidence that the police took from his garage without a search warrant. We affirm the judgment of the trial court.

State of Tennessee v. Judy Johnson and Stanley Johnson
W2001-01272-CCA-R3-CD
Authoring Judge: Judge Alan E. Glenn
Trial Court Judge: Judge George R. Ellis
The husband and wife defendants, Stanley and Judy Johnson, were convicted of eleven counts of cruelty to animals, as the result of conditions at a kennel in Gibson County where they were keeping approximately 350 dogs. Stanley Johnson was sentenced to eleven months and twenty-nine days on each count, with all sentences to be served concurrently, and, as to these sentences, to serve ninety days in the county jail with the remainder on probation. Judy Johnson was sentenced, likewise, to eleven months and twenty-nine days on each count, with all sentences to be served concurrently, but she was to serve six months before being put on probation. Both defendants were fined $1000 in each of the eleven counts. On appeal, they argue that the trial court erred in allowing testimony as to a prior similar complaint against Stanley Johnson and in denying total probation for both. Additionally, they argue that the proof is insufficient to sustain the verdicts. We affirm the judgments of conviction.

State of Tennessee v. Judy Johnson and Stanley Johnson - Concurring
W2001-01272-CCA-R3-CD
Authoring Judge: Presiding Judge Gary R. Wade
Trial Court Judge: Judge George R. Ellis
While I concur in the result reached by the majority, I disagree on three points. First, it is my view that the trial court erred by permitting the state to cross-examine Stanley Johnson on a 1993 animal cruelty charge that did not result in a conviction. Tennessee Rule of Evidence 608 permits limited use of character evidence for impeachment purposes. Rule 608 provides in pertinent part as follows:

State of Tennessee v. Herman Holston
W2001-02004-CCA-R3-CD
Authoring Judge: Judge David G. Hayes
Trial Court Judge: Judge Chris B. Craft

The appellant, Herman Holston, was convicted after a trial by jury of sale of cocaine, a Class C felony, and was sentenced as a Range II offender to eight years and six months confinement in the Department of Correction. On appeal, Holston raises the following issues for our review: (1) whether the evidence was sufficient to support the verdict, and (2) whether his sentence was proper. After a review of the record, we find that Holston's issues are without merit. Accordingly, the judgment of the Shelby County Criminal Court is affirmed.