COURT OF CRIMINAL APPEALS OPINIONS

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.

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.

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. 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.

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. 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. 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.

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. 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. 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. 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. 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. 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. 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.