COURT OF CRIMINAL APPEALS OPINIONS

State of Tennessee v. Patsy Webster
W2001-01908-CCA-R3-CD
Authoring Judge: Judge Joseph M. Tipton
Trial Court Judge: Judge Julian P. Guinn

The defendant, Patsy Webster, appeals the Henry County Circuit Court's ordering her to serve one year of her effective two-year sentence in continuous confinement. She claims that the trial court erred in requiring her to serve a full year in jail because she was eligible as a Range I offender with only a two-year sentence for release after serving thirty percent of her sentence. The state agrees. We hold that the defendant was improperly sentenced and remand the case for resentencing.

State of Tennessee v. Ernest Lee Littles
W2001-01706-CCA-R3-CD
Authoring Judge: Judge Alan E. Glenn
Trial Court Judge: Judge William B. Acree

An Obion County Circuit Court jury convicted the defendant, Ernest Lee Littles, of rape of a child, a Class A felony. The trial court sentenced him as a child rapist to twenty years in the Tennessee Department of Correction, with 100% of the sentence to be served. In his appeal as of right, the defendant claims only that there was insufficient evidence to support his conviction. We affirm the judgment of the trial court but remand for entry of a corrected judgment

State of Tennessee v. Ricky Ray Reed, Jr., aka "Ricco"
W2001-02155-CCA-R3-CD
Authoring Judge: Judge Alan E. Glenn
Trial Court Judge: Judge Joseph H. Walker, III

The defendant was indicted for first degree murder and convicted by the jury of second degree murder. He filed a petition for post-conviction relief, and was permitted to make a delayed motion for a new trial, which ultimately was denied by the trial court. The defendant appeals the denial, arguing that the evidence at trial was insufficient to support his conviction for second degree murder. After a review of the record, we conclude that there was sufficient evidence to convict the defendant of second degree murder and that the trial court properly denied the defendant's motion for judgment of acquittal and a new trial.

State of Tennessee v. Rhynuia Lamont Barnes
M2001-00631-CCA-R3-CD
Authoring Judge: Judge Joe G. Riley
Trial Court Judge: Judge Walter C. Kurtz

The defendant was convicted of premeditated first degree murder by a Davidson County jury and sentenced to life imprisonment with the possibility of parole. In this appeal, he contends (1) the evidence was insufficient to sustain his conviction; (2) he was denied the opportunity to retain his counsel of choice; (3) the state committed prosecutorial misconduct when it failed to sua sponte redact a portion of an audio tape, and the trial court improperly denied the defendant's request for a mistrial; and (4) the trial court erred when it failed to instruct the jury on facilitation of first degree murder and voluntary manslaughter as lesser-included offenses of first degree murder. After reviewing the record, we affirm.

State of Tennessee v. Wendell Gary Gibson
M2001-01430-CCA-R3-CD
Authoring Judge: Judge Joe G. Riley
Trial Court Judge: Judge Robert L. Holloway

The sole issue in this appeal is whether the trial court erred in ordering the defendant to pay $18,000 in restitution. We reverse the judgment of the trial court regarding restitution and remand this matter for further proceedings.

State of Tennessee v. Antonio Rico Walls
M1998-00358-CCA-R3-CD
Authoring Judge: Judge Alan E. Glenn
Trial Court Judge: Judge John H. Gasaway, III

The defendant, Antonio Rico Walls, was convicted of the sale of over .5 grams of cocaine within 1000 feet of a school, in violation of the Drug-Free School Zone Act, and appealed the conviction. Subsequently, he pled guilty to three additional counts of the indictment alleging the same offense, and was sentenced to concurrent fifteen-year sentences for each offense. The pleas of guilty purported to reserve, as a certified question, the claim that the Drug-Free School Zone Act is unconstitutional. We conclude that it is not, and, further, that the evidence at the defendant's trial was sufficient to support his conviction. Accordingly, we affirm the judgments of the trial court.

State of Tennessee v. Michael Williams
W2001-01925-CCA-R3-CD
Authoring Judge: Judge Alan E. Glenn
Trial Court Judge: Judge J. C. Mclin

The defendant, Michael Williams, was convicted of rape, a Class B felony, and sentenced to thirty years in the Tennessee Department of Correction as a violent offender. In his appeal, he argues that the evidence at trial was insufficient to support his conviction for rape. However, we disagree and affirm the judgment of the trial court.

State of Tennessee v. Allen Jean Stephens
W2001-01351-CCA-R3-CD
Authoring Judge: Judge J. Curwood Witt, Jr.
Trial Court Judge: Judge William B. Acree

Allen Jean Stephens appeals from his Weakley County Circuit Court conviction of Class D felony theft of property. Stephens claims in this appeal that the lower court erred in admitting the telephone records of the business that the defendant defrauded in the course of committing his crime. Because we hold that these records were erroneously but harmlessly admitted, we affirm.

State of Tennessee v. LaQuenton Monger
W2002-00321-CCA-RM-CD
Authoring Judge: Judge Norma McGee Ogle
Trial Court Judge: Judge John P. Colton, Jr.
The appellant, LaQuenton Monger, was convicted by a jury in the Shelby County Criminal Court of one count of first degree felony murder by aggravated child abuse and one count of aggravated child abuse, for which convictions the trial court imposed concurrent sentences of life imprisonment and twenty years imprisonment in the Tennessee Department of Correction. The appellant filed an appeal, and this court reversed the trial court's judgments on August 27, 2001. Specifically, we reversed the judgment in the aggravated child abuse case on the basis that constitutional prohibitions against double jeopardy preclude dual convictions of first degree felony murder by aggravated child abuse and aggravated child abuse. We reversed the judgment in the first degree felony murder case due to the trial court's failure to instruct the jury on lesser-included offenses. In light of these dispositions, the State filed an application for permission to appeal to our supreme court pursuant to Tenn. R. App. P. 11. The supreme court granted the State's application for the sole purpose of remanding the cases to this court for reconsideration in light of its November 29, 2001 opinion in State v. Godsey, 60 S.W.3d 759 (Tenn. 2001). Upon reconsideration, we reinstate the judgment of the trial court in the aggravated child abuse case and leave undisturbed our original disposition of the felony murder case.

State of Tennessee v. Brian Keith Gilmer
E2001-01474-CCA-R3-CD
Authoring Judge: Judge Thomas T. Woodall
Trial Court Judge: Judge O. Duane Slone

Defendant, Brian Keith Gilmer, pursuant to a negotiated plea agreement, pled guilty to four counts of rape, Class B felonies, and five counts of rape of a child, Class A felonies, in Case No. 6975 in the Circuit Court of Jefferson County. On the same date, he pled guilty to five counts of rape, Class B felonies, in Case No. 8161 in the Circuit Court of Sevier County. The victim in all counts, in both counties, was Defendant's stepdaughter. Sentencing was to be determined by the trial court (which was the same for both counties), but the negotiated plea agreement was structured such that the total effective sentence would not be less than 15 years or more than 50 years. Defendant also pled guilty to other criminal offenses as part of the plea agreement, but these are not relevant to this appeal. Although Defendant filed a notice of appeal indicating that he was appealing the sentences imposed in both the Jefferson and Sevier County cases, in effect, this appeal challenges only the length of sentences of the Class A felonies in the Jefferson County case, and the fact that one Class A felony was ordered to be served consecutively to the other sentences. We affirm the judgments of the trial court.

State of Tennessee v. Sean A. Turner, alias; Sean Andre Turner
E2001-01773-CCA-R3-CD
Authoring Judge: Judge Thomas T. Woodall
Trial Court Judge: Judge Ray L. Jenkins

Defendant, Shaun A. Turner, alias Shaun Andre Turner, appeals from the trial court's order revoking his probation and ordering him to serve two consecutive sentences in the Department of Correction. After reviewing the record, we affirm the judgment of the trial court.

State of Tennessee v. William C. Bentley
M2001-01521-CCA-R3-CD
Authoring Judge: Judge Thomas T. Woodall
Trial Court Judge: Judge Seth W. Norman

Defendant, William C. Bentley, was convicted by a Davidson County jury of attempted aggravated robbery. In this appeal, he challenges the sufficiency of the evidence to sustain the conviction, and argues that the trial court committed reversible error by admitting hearsay testimony. After a thorough review of the record, we affirm the judgment of the trial court.

State of Tennessee v. Erick Darnell Bailey
M2001-01974-CCA-MR3-CD
Authoring Judge: Judge J. Curwood Witt, Jr.
Trial Court Judge: Judge Seth W. Norman

The defendant, Erick Darnell Bailey, appeals his first-degree murder convictions imposed following a jury trial in the Davidson County Criminal Court. The defendant was tried and convicted on both felony-murder and premeditated-murder counts in the indictment, and the  trial court merged the convictions into a single conviction of first-degree murder. The single issue raised on appeal is whether the convicting evidence is sufficient to support the verdicts. We modify the conviction for premeditated murder to second-degree murder and affirm the conviction for first-degree, felony murder. The second-degree  murder conviction merges into the felony murder conviction.

State of Tennessee v. Floyd Earl Rayner, III
M2001-00971-CCA-R3-CD
Authoring Judge: Judge J. Curwood Witt, Jr.
Trial Court Judge: Judge Seth W. Norman

The defendant, Floyd Earl Rayner, III appeals from his five convictions of rape of a child and five convictions of aggravated sexual battery, claiming that the trial court (1) failed to fulfill its duty as the "thirteenth juror" and (2) erred in its sentencing determinations by not applying mitigating factors in establishing the length of his sentences and in ordering partial consecutive service of the sentences. Because we hold that the trial court discharged its "thirteenth juror" responsibility and that the sentencing issues have been waived, we affirm.

State of Tennessee v. Matric Becton & Antonio Sykes
W1999-00581-CCA-R3-CD
Authoring Judge: Judge David H. Welles
Trial Court Judge: Judge Joseph B. Dailey
The Defendants, Matrin Becton and Antonio Sykes, were convicted by a jury of first degree premeditated murder, especially aggravated robbery, and two counts of especially aggravated kidnapping. Both defendants were sentenced by the same jury to life without the possibility of parole for the first degree murder. After a sentencing hearing, the trial court sentenced both defendants to twenty-five (25) years for each of the remaining counts and ordered all the sentences to run consecutively, for effective sentences of life without parole plus seventy-five (75) years. On appeal, Defendant Sykes contends that the evidence is insufficient to support the jury’s verdict and that the trial court erred in allowing testimony concerning a statement made by the victim prior to his death. Defendant Becton argues that the trial court improperly denied his motion to sever, erred in allowing certain photographs into evidence, erred in charging the jury both in the guilt and sentencing phases, and erred in imposing consecutive sentences. We affirm the judgments of the trial court.

State of Tennessee v. Matric Becton & Antonio Sykes - Concurring
W1999-00581-CCA-R3-CD
Authoring Judge: Judge David G. Hayes
Trial Court Judge: Judge Joseph B. Dailey

I join with the majority on all issues with the exception of their holding that the hearsay statement of the victim was admissible. The majority finds that the deceased victim's statement "that he was tired of the lifestyle, being in that environment, and he didn't want to be a part of it anymore" was admissible to establish the victim's existing state of mind.

State of Tennessee v. Kenneth A. Phillips a/k/a Kenneth Arnold Phillips a/k/a Kenny Dent
W2001-01831-CCA-R3-CD
Authoring Judge: Judge David H. Welles
Trial Court Judge: Judge Joseph H. Walker, III
The defendant was convicted by a Tipton County jury of theft of property valued over $1000, a Class D felony. After a sentencing hearing, he was sentenced as a Range II multiple offender to five years in the Department of Correction. On appeal, the defendant contends that (1) the evidence is insufficient to support the jury's verdict, (2) the trial court erred in admitting evidence of a prior bad act, (3) the defendant was identified from an impermissibly suggestive lineup, and (4) the defendant was never informed of the existence of a possibly exculpatory videotape. We affirm the judgment of the trial court.

State of Tennessee v. Eric B. Blakemore
W2001-01929-CCA-R3-CD
Authoring Judge: Judge David G. Hayes
Trial Court Judge: Judge Carolyn Wade Blackett

The Appellant, Eric B. Blakemore, was convicted by a Shelby County jury of one count of second degree murder and one count of attempted second degree murder. After a sentencing hearing, Blakemore received concurrent sentences of twenty-two years for the murder conviction and ten years for the attempted murder conviction. On appeal, Blakemore asserts that the evidence presented at trial was insufficient to support his conviction for second degree murder. Specifically, he argues that the evidence presented supports the lesser offense of voluntary manslaughter. After review, we find the evidence legally sufficient; accordingly, the judgment of conviction is affirmed.

State of Tennessee v. David Tyrone Dowell
W2001-02161-CCA-R3-CD
Authoring Judge: Judge J. Curwood Witt, Jr.
Trial Court Judge: Judge Joseph H. Walker, III

The defendant, David Tyrone Dowell, appeals the sentence imposed by the trial court on his guilty-plea-based aggravated assault conviction. Because the record supports the trial court's sentencing determination, we affirm.

State of Tennessee v. Brenda Lee Hicks
E2001-00990-CCA-R3-CD
Authoring Judge: Presiding Judge Gary R Wade
Trial Court Judge: Judge Douglas A. Meyer

The defendant, Brenda Lee Hicks, was convicted of vehicular homicide and entered a plea of guilt to one count of driving without a license. The trial court imposed a sentence of six years for the vehicular homicide and ordered service of 11 months and 29 days in jail. The balance of the sentence is to be served on supervised probation. The trial court imposed a concurrent sentence of 30 days incarceration for the charge of driving without a license. In this appeal as of right, the defendant contends that the evidence is insufficient to support the vehicular homicide conviction and questions the propriety of the sentence for that offense. The judgment of the trial court is affirmed.

State of Tennessee v. Frederick Devill Rice
E2000-02389-CCA-R3-CD
Authoring Judge: Judge Joseph M. Tipton
Trial Court Judge: Judge Stephen M. Bevil

The defendant, Fredrick Devill Rice, was convicted by a Hamilton County Criminal Court jury of first degree premeditated murder and first degree felony murder. The trial court merged the two convictions and sentenced the defendant to life imprisonment. The defendant appeals, claiming that (1) the evidence is insufficient to support his merged convictions; (2) the trial court erred by admitting a videotaped search of the defendant's residence into evidence; and (3) the state argued outside of the record twice during closing argument. We affirm the judgment of the trial court.

State of Tennessee v. David W. Bass
E2001-01146-CCA-R3-CD
Authoring Judge: Presiding Judge Gary R Wade
Trial Court Judge: Judge E. Eugene Eblen

The defendant, David W. Bass, was indicted for driving under the influence, violation of the implied consent law, failure to appear, and operating a motor vehicle with an improper taillight. Pursuant to a plea agreement, the defendant entered a plea of guilt to driving under the influence, first offense. After the entry of his plea but before sentencing, the defendant sought to withdraw his plea, arguing that it was not knowingly and voluntarily made. The trial court denied the motion and imposed a sentence of eleven months and twenty-nine days, with all but three days suspended. In this appeal of right, the defendant contends that the trial court erred by denying the motion to withdraw the guilty plea. The judgment of the trial court is affirmed.

Richard Lynn Norton v. Ricky Bell, Warden - Order
M2001-02516-CCA-R3-CO
Authoring Judge: Judge Joseph M. Tipton

The petitioner appeals pro se from the Davidson County Criminal Court’s denying him habeas corpus relief from his three 1999 convictions for the sale or delivery of more than one-half gram of crack cocaine for which he received an effective sentence of twenty-four  years. The petitioner contends that the convictions are void because the presentment “does not charge the overt act, offense of knowingly possession with intent to sell or deliver a Schedule II controlled substance, and nor, does it charge, knowingly possessed a Schedule II controlled substance, exceeding one-half gram.” He also asserts that evidence “seized and manufactured through an informant, after-the-fact, through inducement” is insufficient to show probable cause in Tennessee. The trial court denied relief.

Cumecus R. Cates v. State of Tennessee
E2001-01408-CCA-R3-PC
Authoring Judge: Judge Robert W. Wedemeyer
Trial Court Judge: Judge Mary Beth Leibowitz

Pursuant to a plea agreement, the Petitioner pled guilty to four felony drug offenses and received an effective sentence of sixteen years. After a hearing, the trial court ordered the sentence to be served in the Tennessee Department of Correction. The Petitioner filed a petition for post-conviction relief, which the trial court dismissed without a hearing for failure to state a colorable claim. Concluding that the Petitioner stated a colorable claim, we reverse and remand for a hearing.

State of Tennessee v. Gregory Dunnorm
E2001-00566-CCA-R3-CD
Authoring Judge: Presiding Judge Gary R Wade
Trial Court Judge: Judge James B. Scott, Jr.
The defendant, Gregory Dunnorm, was convicted of Class D felony evading arrest, the simple assault of LaDeana Ellis, vandalism, and second offense driving on a suspended license. See Tenn. Code Ann. §§ 39-16-603, 39-13-301, 39-14-408, 55-50-504. He had been charged with the aggravated assault of LaDeana Ellis and was acquitted on charges of simple assault of Sonda Ellis and aggravated assault of Officer Karen Wehenkel. While granting supervised probation, the trial court sentenced the defendant to concurrent terms of two years for evading arrest and 11 months, 29 days for each of the misdemeanor convictions. In this appeal of right, the defendant asserts (1) that the evidence was insufficient to support the convictions for evading arrest, assault, and vandalism; (2) that the trial court erred by permitting the state to cross-examine the defendant regarding his affidavit of income; (3) that the trial court erred by failing to instruct the jury regarding the lesser included offenses of Class D felony evading arrest; and (4) that the trial court erred by declining to instruct the jury on the defense of effective consent. Because the evidence was insufficient to support the defendant’s conviction for Class D felony evading arrest and because the trial court erred by failing to instruct on the lesser included offense of Class E felony evading arrest, the conviction is reversed and the cause remanded. Otherwise, the judgments of the trial court are affirmed.