COURT OF CRIMINAL APPEALS OPINIONS

State vs. James D. Brazelton
M1999-02477-CCA-R3-CD
Authoring Judge: Judge Norma McGee Ogle
Trial Court Judge: Cheryl A. Blackburn
The appellant, James D. Brazelton, was convicted by a jury in the Davidson County Criminal Court of one count of possession of marijuana, over 10 pounds but less than 70 pounds, with the intent to deliver, a class D felony. The trial court sentenced the appellant, as a Range II offender, to seven years incarceration in the Tennessee Department of Correction. The appellant raises the following issues for our review: (1) whether the jury's verdict was supported by the evidence; and (2) whether the sentence imposed by the trial court was excessive. Upon review of the record and the parties' briefs, we affirm the judgment of the trial court.

In Re: Paul's Bonding Company, Inc.
M1999-02528-CCA-R3-CD
Authoring Judge: Judge Norma McGee Ogle
Trial Court Judge: J. Randall Wyatt, Jr.
The appellant, Paul's Bonding Company, Inc., appeals the judgments of the Davidson County Criminal Court ordering complete forfeiture of bail bonds in the cases of criminal defendants Carlos Ramon Ruiz and Castulo Morales Vasquez and partial forfeiture of the bail bond in the case of criminal defendant Reyes Castro. Following a review of the record and the parties' briefs, we affirm the judgments of the trial court.

State vs. Brentol Calvin James
M1999-02533-CCA-R3-CD
Authoring Judge: Judge Norma McGee Ogle
Trial Court Judge: Seth W. Norman
The appellant, Brentol Calvin James, was convicted by a jury in the Davidson County Criminal Court of one count of possession of a weapon during the commission of an offense, a class E felony. The trial court sentenced the appellant, as a Range I offender, to a one- year sentence of incarceration in the Davidson County Workhouse. The appellant raises the following issue for our review: whether the trial court erred in allowing a verdict to stand when there was insufficient evidence, as a matter of law, to support the conviction. Upon review of the record and the parties' briefs, we reverse the judgment of the trial court.

State vs. Peter George Crehan
M1999-02542-CCA-R3-CD
Authoring Judge: Judge Joe G. Riley
Trial Court Judge: Robert W. Wedemeyer
The defendant was convicted by a Robertson County jury of driving under the influence ("DUI"), third offense, and reckless driving. Defendant claims on appeal that the trial court erred by (1) sustaining his conviction for DUI, third offense, despite the indictment's failure to allege the specific court in Davidson County where he received his two prior DUI convictions; and (2) the evidence was insufficient to sustain his conviction for reckless driving. After a through review of the record, we affirm the judgment of the trial court.

State vs. James Edward Cowan
M1999-02572-CCA-R3-CD
Authoring Judge: Judge Joe G. Riley
Trial Court Judge: J. Randall Wyatt, Jr.
Defendant was convicted by a Davidson County jury of attempted first degree murder, attempted especially aggravated robbery, and especially aggravated burglary. At sentencing his conviction for especially aggravated burglary was reduced to aggravated burglary. He was sentenced as a Range II offender to thirty-six years for the Class A felony of attempted first degree murder, sixteen years for the Class B felony of attempted especially aggravated robbery, and eight years for the Class C felony of aggravated burglary. The attempted first degree murder and attempted especially aggravated robbery sentences were run consecutively to each other, and the aggravated burglary sentence ran concurrently, for an effective fifty-two year sentence. In this appeal, defendant makes the following allegations: (1) the trial court erred in refusing to suppress the bullet which was removed from defendant during surgery; (2) the evidence was insufficient to support his conviction for attempted first degree murder; (3) his separate convictions for attempted first degree murder and aggravated burglary violate due process since they were incidental to attempted especially aggravated robbery; and (4) the trial court erred in determining the length and consecutive service of his sentences. Upon our review of the record we conclude the trial court properly admitted the bullet removed from the defendant; the evidence was sufficient to sustain defendant's conviction for attempted first degree murder; there was no due process violation; and defendant was properly sentenced. Thus, the judgment of the trial court is affirmed.

State v. Charles Ray Allen
M1999-00818-CCA-R3-CD
Authoring Judge: Judge David H. Welles
Trial Court Judge: J. Randall Wyatt, Jr.
The Defendant was convicted by a jury of first degree premeditated murder and criminal attempt to commit voluntary manslaughter. He was sentenced to life imprisonment for the murder, and to a consecutive four year term for the attempted manslaughter. In this appeal as of right, the Defendant challenges the sufficiency of the evidence; the trial court's exclusion of proof about the victim's prior violent conduct; the trial court's instruction to the jury about the penalties for first degree murder; and his sentencing. The judgment of the trial court is affirmed.

Anthony Ewing vs. State
M1999-01079-CCA-R3-PC
Authoring Judge: Judge Norma McGee Ogle
Trial Court Judge: Steve R. Dozier
On February 12, 1998, the petitioner, Anthony Ewing, entered a best interest guilty plea in the Davidson County Criminal Court to one count of attempt to sell over .5 grams of cocaine, a class C felony. The trial court imposed a sentence of six years incarceration in the Davidson County Workhouse. The trial court further ordered this sentence to be served concurrently with sentences the petitioner was already serving. The petitioner filed a post-conviction petition for relief, alleging that he received ineffective assistance of counsel and that his best interest guilty plea was not made knowingly or voluntarily. The post-conviction court denied the petition, finding that the petitioner had received effective assistance of counsel and that the best interest guilty plea had been made knowingly and voluntarily. The petitioner now appeals the denial of his petition for post-conviction relief. Pursuant to a review of the record and the parties' briefs, we affirm the judgment of the post-conviction court.

State vs. Kenneth Ray Jarman
M1999-01382-CCA-R3-CD
Authoring Judge: Judge Norma McGee Ogle
Trial Court Judge: John H. Gasaway, III
The appellant, Kenneth Ray Jarman, pled guilty in the Montgomery County Criminal Court to one count of driving under the influence (hereinafter "DUI"), fourth offense or over, a class E felony; one count of driving on a revoked license, sixth offense, a class A misdemeanor; and one count of violating the open container law, a class C misdemeanor. The trial court sentenced the appellant to two years incarceration in the Tennessee Department of Correction for the DUI conviction, and imposed a $3000 fine. The trial court also sentenced the appellant to eleven months and twenty-nine days incarceration in the Montgomery County Jail for the driving on a revoked license conviction, and imposed a $350 fine. The trial court further sentenced the appellant to thirty days incarceration in the Montgomery County Jail for the violation of the open container law. Additionally, the trial court ordered the appellant's sentences to be served concurrently. The appellant raises the following issues for review: (1) whether the enhancing factors applied by the trial court were inapplicable to this case; and (2) whether the trial court erred in sentencing the appellant to serve the full term of his two-year sentence in the Tennessee Department of Correction. Upon review of the record and the parties' briefs, we affirm in part and modify the judgment of the trial court.

State vs. Anthony Roberts
M1999-00750-CCA-R3-CD
Authoring Judge: Judge Joe G. Riley
Trial Court Judge: Frank G. Clement, Jr.
Defendant appeals his conviction by a Davidson County jury of DUI second offense. He raises the following issues for our review: (1) whether the trial court erred in denying his motion to suppress based upon the lack of probable cause to arrest; (2) whether the evidence was sufficient to support the conviction; (3) whether the prosecutor committed misconduct during final argument, and (4) whether records pertaining to his prior DUI conviction were properly admitted. Finding no error, we affirm the judgment of the trial court.

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Trial Court Judge: William Charles Lee

State vs. Scarlett Rose Bender
M2000-1070-CCA-R3-CD
Trial Court Judge: Allen W. Wallace
The Defendant pleaded nolo contendere to possessing with the intent to sell or deliver over one hundred pounds of marijuana, which is a Class B felony. Sentencing was left to the discretion of the trial court. Following a sentencing hearing, the trial judge sentenced the Defendant to eight years in the Department of Correction. On appeal, the Defendant argues that she should have been sentenced as an especially mitigated offender and that she should have been allowed to serve her sentence on probation. We affirm the judgment of the trial court.

State vs. Elizabeth Davis
E1999-00373-CCA-R3-CD
Authoring Judge: Judge Norma McGee Ogle
Trial Court Judge: Robert E. Cupp
The appellee, Elizabeth Davis, was indicted by a Unicoi County Grand Jury on November 20, 1995, for four counts of theft of property. On March 2, 1999, the State submitted a motion to the trial court to amend the indictment to correct the dates of the offenses set forth in all counts of the indictment and to reduce the value of the money alleged stolen in Count Four of the indictment. Following a hearing, the trial court denied the State's motion, whereupon the State requested the entry of an order of nolle prosequi as to all counts of the indictment. Instead, at the appellee's request, the trial court dismissed the indictment with prejudice pursuant to Tenn. R. Crim. P. 48(b). The State now brings this appeal as of right challenging both the trial court's dismissal of the indictment with prejudice and the trial court's denial of its motion to amend the indictment. Following a review of the record and the parties' briefs, we reverse the order of dismissal and remand this case for proceedings consistent with this opinion.

State vs. Elizabeth Davis
E1999-00373-CCA-R3-CD
Authoring Judge: Judge Norma McGee Ogle
Trial Court Judge: Robert E. Cupp
The appellee, Elizabeth Davis, was indicted by a Unicoi County Grand Jury on November 20, 1995, for four counts of theft of property. On March 2, 1999, the State submitted a motion to the trial court to amend the indictment to correct the dates of the offenses set forth in all counts of the indictment and to reduce the value of the money alleged stolen in Count Four of the indictment. Following a hearing, the trial court denied the State's motion, whereupon the State requested the entry of an order of nolle prosequi as to all counts of the indictment. Instead, at the appellee's request, the trial court dismissed the indictment with prejudice pursuant to Tenn. R. Crim. P. 48(b). The State now brings this appeal as of right challenging both the trial court's dismissal of the indictment with prejudice and the trial court's denial of its motion to amend the indictment. Following a review of the record and the parties' briefs, we reverse the order of dismissal and remand this case for proceedings consistent with this opinion.

State vs. Lori A. Little
M1999-0858-CCA-R3-CD
Trial Court Judge: Walter C. Kurtz
The Defendant, Lori A. Little, was convicted of two counts of forgery, both Class E felonies. In this appeal as of right, she argues (1) that the trial court improperly denied her the court's subpoena power prior to trial; (2) that the evidence was insufficient to support her convictions; (3) that the trial court improperly instructed the jury regarding NationsBank's obligations under the Uniform Commercial Code to reimburse customers for forgeries paid out of customers' accounts; (4) that the trial court improperly limited cross-examination of a prosecution witness regarding his bias; (5) that the jury was improperly tainted or biased by contact between a witness and a juror who were acquaintances; and (6) that the trial court intimidated the Defendant in a jury-out hearing during her direct examination at trial. We find no reversible error; thus, we affirm the judgment of the trial court.

State vs. Bernard Jerome Jones
M2000-00018-CCA-R3-CD
Authoring Judge: Judge Joe G. Riley
Trial Court Judge: Cheryl A. Blackburn
The defendant was convicted by a Davidson County jury of possession with intent to sell or deliver 0.5 grams or more of cocaine. The trial court sentenced defendant to 16 years incarceration as a Range II multiple offender. In this appeal as a matter of right, defendant makes the following allegations of error: (1) the evidence was insufficient to support a finding of guilt; (2) the trial court erred by ruling that if defendant testified, the state could impeach his credibility by introducing defendant's prior drug convictions; and (3) the trial court erred in sentencing defendant to 16 years incarceration. After a thorough review of the record, we affirm the judgment of the trial court.

State of Tennessee v. Connie Easterly
M2000-00077-CCA-R10-CO
Authoring Judge: Judge Norma McGee Ogle
Trial Court Judge: Robert Steven Bebb

State vs. Bobbie Joe Rollins
M1999-02457-CCA-R3-CD
Authoring Judge: Judge Joe G. Riley
Trial Court Judge: W. Charles Lee
The defendant was convicted by a Marshall County jury of reckless aggravated assault and sentenced by the trial court to ten years imprisonment as a Range III offender. In this appeal as a matter of right, the defendant claims the conflict between the trial court's erroneous written jury instruction requiring proof of venue in "Lincoln County," and the oral instruction requiring proof of venue in "Marshall County," requires reversal. After a through review of the record, we conclude that the issue has been waived. Furthermore, regardless of waiver, any error in the written jury instruction was clearly harmless. Therefore, we affirm the judgment of the trial court.

State vs. Richard C. Silk
M1999-02526-CCA-R3-CD
Authoring Judge: Judge Norma McGee Ogle
Trial Court Judge: J. Steve Daniel
The appellant, Richard C. Silk, was convicted by a jury in the Rutherford County Circuit Court of one count of resisting arrest, a class B misdemeanor. The trial court sentenced him to six (6) months incarceration in the Rutherford County Jail, assigning a service percentage of seventy-five percent (75%). The appellant now presents the following issues for our review: (1) whether the evidence adduced at trial is sufficient to support the appellant's conviction of resisting arrest; (2) whether the trial court erred in sustaining certain objections by the State to the appellant's testimony concerning a statement made to him by an arresting officer; and (3) whether the trial court erred in sentencing the appellant. Following a thorough review of the record and the parties' briefs, we affirm the judgment of the trial court.

State vs.Robert Lewis Herrin
M1999-00856-CCA-R3-CD
Authoring Judge: Judge Norma McGee Ogle
Trial Court Judge: W. Charles Lee
The appellant, Robert Lewis Herrin, pled guilty in the Marshall County Circuit Court to one count of theft of property worth one thousand dollars ($1,000) or more but less than ten thousand dollars ($10,000), a class D felony. The trial court sentenced the appellant as a Range I offender to three years incarceration in the Tennessee Department of Correction, suspending all but 120 days of the appellant's sentence and granting him supervised probation for a term of ten years. As a special condition of probation, the trial court prohibited the appellant from engaging in "any type [of] construction business or solicitation for business." In this appeal, the appellant argues that the trial court erred in imposing this special condition of probation. Following a review of the record and the parties' briefs, we affirm the judgment of the trial court as modified.

State vs. William Lewis Houston
M1999-01430-CCA-R3-CD
Authoring Judge: Judge Joe G. Riley
Trial Court Judge: Jim T. Hamilton
Defendant was convicted by a Giles County jury of eight drug offenses and one count of aggravated assault. He received an effective sentence of seventy-two years. In this appeal, the defendant makes the following allegations: (1) the evidence was insufficient to support his convictions; (2) the trial court committed plain error by consolidating all nine indictments for trial; (3) the process of selecting the jury venire was unconstitutional; (4) the trial court improperly limited the defendant's cross-examination of the undercover agent; (5) the trial court erred by admitting into evidence transcripts of certain tape recorded conversations and failed to properly instruct the jury concerning the transcripts; and (6) the trial court erred in its sentencing determinations. We conclude the trial court improperly sentenced the defendant and reduce the sentences to an effective term of forty-six years. The judgments of the trial court are affirmed in all other respects.

State vs. Warner Powell and Charlie Stokes
M1999-00661-CCA-R3-CD
Authoring Judge: Judge David H. Welles
Trial Court Judge: Robert W. Wedemeyer
This is an appeal as of right by the State of Tennessee, which argues that the trial court erred by suppressing the evidence obtained against the Defendants pursuant to a search warrant. The State asserts that the trial court incorrectly concluded that the search warrant was invalid because the agent who provided the information in the affidavit establishing probable cause to search did not have the authority to execute the warrant or arrest the Defendants. In response, the Defendants assert that the State's notice of appeal was not timely filed, and they argue that the evidence was properly suppressed because the agent did not have the authority to obtain or execute the search warrant and because the affidavit did not establish the veracity of the confidential informant. We conclude that the State's notice of appeal was not timely filed, but we will consider the appeal in the interest of justice. We further conclude that the search warrant was valid; thus the trial court erred by suppressing the evidence obtained pursuant to the warrant. Accordingly, the trial court's order suppressing the evidence is reversed, and this case is remanded for further proceedings consistent with this opinion.

State vs. Roderick Johnson
M1999-00605-CCA-R3-CD
Authoring Judge: Judge Joe G. Riley
Trial Court Judge: J. Randall Wyatt, Jr.
A Davidson County jury convicted defendant of second degree murder. In this appeal as a matter of right, defendant challenges only the sufficiency of the evidence upon which the jury based his conviction. Our review of the record reflects sufficient evidence to support the jury's finding. Accordingly, we affirm the judgment of the trial court.

State vs. Larry Burks
E1999-00571-CCA-R3-CD
Authoring Judge: Judge Alan E. Glenn
Trial Court Judge: J. Curtis Smith
The mobile home, which was the residence of the defendant and his wife, was searched, pursuant to a search warrant, and certain illegal substances were found. The defendant filed a motion to suppress, contesting the adequacy of the description of the place to be searched. Following a hearing on the motion and the trial court's upholding the validity of the search warrant, the defendant entered a plea of guilty to a drug offense, reserving as certified questions of law the adequacy of the portion of the search warrant describing the place to be searched and whether the search warrant sufficiently established the reliability of the confidential informant. Based upon our review, we affirm the finding of the trial court that the description of the premises was adequate. Our consideration of the second certified question of law is waived because this issue was not pursued on appeal.

State vs. James Christopher Lewis
E1999-00802-CCA-R3-CD
Authoring Judge: Judge Alan E. Glenn
Trial Court Judge: R. Jerry Beck
The defendant entered an Alford plea to one count of attempted rape and two counts of sexual battery. He received a sentence of eight years as a Range II offender for the attempted rape and two years, as a Range I offender, for each of the sexual battery charges. All sentences were to be served concurrently. The defendant's request for a suspended sentence was denied after a lengthy hearing, and he raises that denial as the sole issue on appeal. Based upon our review, we affirm the judgment of the trial court.

State vs. Samuel Wayne Loveday
E1999-01090-CCA-R3-CD
Authoring Judge: Judge Alan E. Glenn
Trial Court Judge: Ray L. Jenkins
The defendant, who was convicted of attempted aggravated rape, aggravated sexual battery, and aggravated assault, appealed these convictions, presenting as issues whether the out-of-court showup identification of the defendant was impermissibly suggestive and whether the subsequent in-court identification was tainted as a result. Based upon our review, we conclude that these issues are without merit and, thus, affirm the judgment of the trial court.