State of Tennessee v. James Edward Peden
M2002-00269-CCA-R3-CD
Authoring Judge: Judge J. Curwood Witt, Jr.
Trial Court Judge: Judge W. Charles Lee

The defendant, James Edward Peden, appeals his Lincoln County Circuit Court jury conviction of failure to appear, a Class E felony. He challenges the sufficiency of the convicting evidence and the trial court's ruling that allowed evidence of certain prior convictions to impeach his testimony. Finding no reversible error, we affirm.

State of Tennessee v. Ricky Lamont Brigman
M2002-00461-CCA-R3-CD
Authoring Judge: Judge David G. Hayes
Trial Court Judge: Judge Steve R. Dozier

The Appellant, Ricky Lamont Brigman, was convicted by a Davidson County jury of three counts of rape of a child, one count of attempted rape of a child, two counts of aggravated sexual battery, three counts of rape, one count of attempted rape, one count of sexual battery, one count of attempted sexual battery, and one count of sexual exploitation involving six minor male victims. For these convictions, he received an effective sentence of ninety-one years. On appeal, Brigman challenges both his convictions and sentences upon the following grounds: (1) with respect to certain convictions, a material variance exists between the indictments and the convicting evidence; (2) the "cancellation" rule requires dismissal of his conviction for sexual battery; (3) the trial court provided improper jury instructions with regard to the "cancellation" rule and the requisite mental states; (4) the sentences are excessive due to the trial court's failure to apply mitigating factors at sentencing; and (5) the improper imposition of consecutive sentences. After review, we find no reversible error and affirm the judgment of the trial court.

David Mayberry v. Janilyn Mayberry
M2002-00424-COA-R3-CV
Authoring Judge: Presiding Judge Alan E. Highers
Trial Court Judge: Don R. Ash
This appeal involves a petition to modify a parenting plan. The trial court found there to be a material and substantial change in circumstances and that it was in the best interest of the minor children that Mother be designated the primary residential custodian with full decision making authority. Father was awarded more than standard visitation. Father appeals and raises one issue on appeal. For the following reasons, we affirm.

Brenda Adams vs. Steven Oliveira
E2002-00515-COA-R3-CV
Authoring Judge: Judge Houston M. Goddard
Trial Court Judge: William R. Brewer
Steven A. Oliveira appeals an order of protection entered on December 18, 2001, by the General Sessions Court for Blount County in favor of Brenda L. Adams, Mr. Oliveira's sister. An ex parte order had issued on November 26, 2001, and was served on December 6, 2001. The hearing was held on December 17. We dismiss the appeal because we find it was not timely filed.

State of Tennessee v. David S. Eads
W2002-02814-CCA-R3-CD
Authoring Judge: Judge David G. Hayes
Trial Court Judge: Judge Jon Kerry Blackwood

The Appellant, David S. Eads, pled guilty to possession of marijuana with intent to deliver and possession of drug paraphernalia. As a condition of the plea agreement, Eads reserved the right to appeal, as a certified question of law, the trial court’s denial of his motion to suppress. See Tenn. R. App. P. 3(b); Tenn. R. Crim. P. 37(b). On appeal, he asserts that the search warrant was invalid because: (1) the facts alleged in the affidavit supporting the search warrant were insufficient to support a finding of probable cause, and (2) the warrant was based on information obtained from an illegal warrantless search by a confidential informant. Finding that the issues presented are without merit, we affirm the trial court’s denial of the motion to suppress.

Ricky Flamingo Brown, Sr. v. State of Tennessee
M2002-02427-CCA-R3-PC
Authoring Judge: Judge Alan E. Glenn
Trial Court Judge: Judge Cheryl A. Blackburn
The petitioner, Ricky Flamingo Brown, Sr., was convicted in 1987 of the aggravated rape of his daughter. He later sought direct and delayed appeals, both of which were denied by this court and the Tennessee Supreme Court. Subsequently, he filed a petition pursuant to Tennessee Code Annotated section 40-30-403, which allows a defendant to petition the court for DNA analysis of evidence in possession of the State. The State responded to the petition by stating that evidence suitable for DNA testing was never collected and did not exist. The post-conviction court dismissed the petition and, following our review, we affirm that dismissal.

Ricky Flamingo Brown, Sr. v. State of Tennessee - Concurring
M2002-02427-CCA-R3-PC
Authoring Judge: Judge Joseph M. Tipton
Trial Court Judge: Judge Cheryl A. Blackburn
I concur in the majority opinion. I question, though, the trial court’s reliance upon the victim’s identifying the petitioner, her father, as the perpetrator to deny testing. The DNA Analysis Act requires the court to determine if “[a] reasonable probability exists that the petitioner would not have been prosecuted or convicted if exculpatory results had been obtained through DNA analysis.” Tenn. Code Ann. § 40-30-404(1). In other words, the Act requires the trial court to assume that the DNA analysis will reveal exculpatory results in the court’s determination as to whether to order DNA testing. To the extent that the trial court’s order implies that the fact that the victim identified the petitioner as a perpetrator defeats the need for testing, I disagree. The Act was created because of the possibility that a person has been wrongfully convicted or sentenced. A person may be wrongly convicted based upon mistaken identity or false testimony. Thus, the fact that the victim identified the petitioner as the perpetrator should not provide a basis for denying testing.

State of Tennessee v. Aaron Stenberg
M2002-01096-CCA-R3-CD
Authoring Judge: Judge Joe G. Riley
Trial Court Judge: Judge Robert L. Jones

The trial court sentenced the defendant to an effective term of six years with 120 days incarceration followed by probation as a result of the defendant's guilty pleas to three counts of vandalism over $10,000, one count of vandalism over $1,000, one count of vandalism over $500, and one count of vandalism under $500. In this appeal, the defendant argues: (1) his sentence is excessive; (2) the trial court erred in denying him full probation; and (3) the trial court erred in denying judicial diversion. We remand for correction of clerical errors in some of the judgments but otherwise affirm the judgments of the trial court.

State of Tennessee v. Jerry W. Yancy
M2002-01640-CCA-R3-CD
Authoring Judge: Judge Thomas T. Woodall
Trial Court Judge: Judge Timothy L. Easter

On April 12, 1999, the Williamson County Grand Jury returned a five-count indictment charging Defendant, Jerry W. Yancy, Jr., with two counts of aggravated assault and three counts of felony reckless endangerment. The district attorney general denied Defendant's request for pretrial diversion. In a writ of certiorari, Defendant asked the trial court to review the district attorney general's denial of pretrial diversion. Following a hearing, the trial court denied certiorari. The trial court also denied Defendant's motion to file an interlocutory appeal pursuant to Rule 9, Tenn. R. App. P. Defendant applied for an extraordinary appeal pursuant to Rule 10, Tenn. R. App. P., which this Court denied. Defendant entered guilty pleas to two counts of felony reckless endangerment and was convicted by a jury of two counts of aggravated assault. He was acquitted on the remaining count of felony reckless endangerment. The trial court sentenced Defendant to serve sixty days in confinement and four years on probation. On direct appeal, this Court affirmed the trial court's judgments. The Tennessee Supreme Court granted permission to appeal and held that this Court erred by looking to the entire record in deciding whether the denial of pretrial diversion was proper. State v. Yancey, 69 S.W.3d 553 (Tenn. 2002). The supreme court remanded the case back to the trial court for application of the proper standard of review. Id. On remand from the supreme court, the trial court entered an order affirming the denial of pretrial diversion. Defendant appeals that decision.

Alphonzo Chalmers v. State of Tennessee
W2002-02270-CCA-R3-PC
Authoring Judge: Judge David G. Hayes
Trial Court Judge: Judge J. C. Mclin

The Appellant, Alphonzo Chalmers,¹ appeals the Shelby County Criminal Court’s denial of his petition for post-conviction relief. On appeal, Chalmers argues that he received ineffective assistance of counsel. After review of the record, we find that Chalmers’ brief fails to provide any argument in support of the issue presented. Due to his procedural default, the appeal is dismissed.

State of Tennessee v. Delbert Eugene Orey
W2002-00482-CCA-R3-CD
Authoring Judge: Judge Alan E. Glenn
Trial Court Judge: Judge Roy Morgan

The defendant, Delbert Eugene Orey, was convicted of DUI, third offense, and driving while license suspended, fifth offense, and was sentenced, respectively, to eleven months and twenty-nine days, with all but 180 days suspended, and six months, with all but forty-five days suspended, the sentences to be served concurrently. On appeal, he argues that the evidence was insufficient to support his conviction for DUI, third offense, and that his sentence is excessive. Following our review, we affirm the judgments of the trial court.

State of Tennessee v. George C. Peery, III
E2002-01682-CCA-R3-CD
Authoring Judge: Judge Thomas T. Woodall
Trial Court Judge: Judge R. Jerry Beck

Defendant, George C. Peery, III, appeals his sentence of split confinement imposed upon his plea of guilt to aggravated burglary, a Class C felony, and theft under $500, a Class A misdemeanor. In his appeal, Defendant requests full probation and challenges the imposition of a one-year period of confinement followed by two years probation in the community corrections program for his felony conviction. Defendant does not challenge his misdemeanor sentence. We affirm the trial court's denial of full probation but reverse the one-year period of confinement and remand for modification of the judgment to reflect a period of confinement of 10.8 months to be served in the local jail or workhouse. In addition, because there is a conflict between the transcript and the judgment, we remand this case for correction of the judgment.

State of Tennessee v. Tiffany D. Oates
M2002-01873-CCA-R3-CD
Authoring Judge: Judge Alan E. Glenn
Trial Court Judge: Judge Steve R. Dozier

The defendant pled guilty to aggravated burglary, a Class C felony, in exchange for a six-year, one-month sentence as a Range I, standard offender, with the manner of service to be left to the trial court's later determination. Following the sentencing hearing, the trial court ordered that the defendant serve her sentence in continuous confinement. The defendant appeals, arguing that the record does not support a sentence of full confinement and that the trial court erred in denying her request for probation or other alternative sentencing. Finding no error, we affirm the judgment of the trial court.

John Tallardy v. William Jones
M2002-00447-COA-R3-CV
Authoring Judge: Judge Frank Clement, Jr.
Trial Court Judge: Carol A. Catalano
Homeowner hired a contractor to make improvements to his residence. Disputes occurred during and following construction. The contract contained an arbitration provision. The parties agreed to arbitration, following which the arbitrator awarded damages against the contractor in the amount of $76,465. Contractor refused to pay the award. Accordingly, the homeowner filed this civil action to enforce the arbitration award. Following a hearing before the Chancellor, of which there is no record for this court to review, the Chancellor refused to confirm the arbitration award. We affirm.

State of Tennessee v. Howard Keith Lightsey
M2001-01042-CCA-R3-CD
Authoring Judge: Judge Jerry L. Smith
Trial Court Judge: Judge Donald P. Harris

The appellant, Howard Keith Lightsey, was indicted by the Williamson County Grand Jury, on one count of possession of cocaine with intent to sell or deliver, one count of possession of marijuana, and one count of drug paraphernalia. The appellant entered a plea agreement and pled guilty to one count of simple possession of cocaine, one count of possession of marijuana and one count of possession of drug paraphernalia. Following a sentencing hearing on February 19, 2002, the trial court ordered another sentencing hearing for April 19, 2002. At that sentencing hearing the court sentenced the appellant to eleven months twenty-nine days on each count. This sentence was suspended except for twenty days and an aggregate fine of $1,150. The appellant now brings this appeal claiming that the trial erred in denying him full probation. We find the judgment of the trial court should be affirmed.

State of Tennessee v. Abel Caberra Torres
M2001-01412-CCA-R3-CD
Authoring Judge: Presiding Judge Gary R Wade
Trial Court Judge: Judge Charles D. Haston, Sr.

The defendant, Abel Caberra Torres, was convicted of attempted especially aggravated robbery, two counts of attempted second degree murder, aggravated assault, and attempted aggravated assault. The trial court merged the last two offenses into the attempted second degree murder convictions and ordered consecutive sentences of twelve years for each offense, for an effective sentence of thirty-six years. In this appeal of right, the defendant asserts (1) that the evidence was not sufficient; (2) that the trial court erred by failing to suppress his statements to police; (3) that the trial court erred in its instructions to the jury; and (4) that the sentence was excessive. The judgments of conviction are affirmed. Because of the misapplication of enhancement factors, each of the sentences are modified to ten years. The cause is remanded to the trial court for further findings on the consecutive sentencing issue.

Clinton Wayne Lynch v. State of Tennessee
M2002-02801-CCA-R3-PC
Authoring Judge: Judge David H. Welles
Trial Court Judge: Judge Walter C. Kurtz

The petitioner, Clinton Wayne Lynch, appeals from the order of the trial court denying his petition requesting forensic DNA analysis of evidence related to the investigation and prosecution which resulted in the petitioner's conviction for second degree murder entered upon his plea of guilty in 1986. We affirm the judgment of the trial court.

In the Matter of TBS.& AKS.; Dept of Children's Srvc v. Nancy Shortt
M2002-02920-COA-R3-JV
Authoring Judge: Judge William B. Cain
Trial Court Judge: Jimmy White
This case concerns the question of what constitutes reasonable efforts to reunify dependent and neglected children with the birth parents prior to the termination of parental rights. The trial court held that reasonable efforts were made. This Court affirms the termination as to both parents' rights.

State of Tennessee v. Giesela Robinson
M2002-00548-CCA-R3-CD
Authoring Judge: Judge David H. Welles
Trial Court Judge: Judge Leon Burns & Judge Lillie Ann Sells

The Defendant pled guilty to one count of facilitation of the possession of over .5 grams of cocaine with the intent to sell or deliver, a Class C felony. In accordance with her plea agreement, she was sentenced to a term of six years, with the manner of service of the sentence to be determined by the trial court. After a sentencing hearing, the trial court ordered her sentence to be served in the Department of Correction. In this appeal, the Defendant argues that the trial court erred by not granting her probation or some other form of alternative sentence. We affirm the judgment of the trial court.

Donita Piper v. Curtis Mize
M2002-00626-COA-R3-CV
Authoring Judge: Judge William B. Cain
Trial Court Judge: John H. Gasaway, III
Plaintiffs in this case are citizens of Montgomery County. Defendants, Paul Avallone, Wayne Gill, Curtis Mize and Yvonne Van Der Touw are also citizens of Montgomery County who, in varying degrees, were alleged to be involved in the printing and distribution of a newspaper known as The Rattler. Defendant Avallone was the sole writer, publisher and editor of each issue of The Rattler. Defendant Mize is a businessman who allowed copies of the October 5, 2000 edition of The Rattler to be placed on the counter at his place of business for free distribution. The trial court granted summary judgment in favor of Defendant Mize and finalized the judgment as to Mize under Tennessee Rules of Civil Procedure 54.02. Plaintiffs appeal, and we affirm the judgment of the trial court.

Triple Rock v. A.C. Rainey
M2000-01115-COA-R3-CV
Authoring Judge: Judge William B. Cain
Trial Court Judge: Ellen Hobbs Lyle
Triple Rock LLC, d/b/a Commercial Ten, Perry Dale, and Earl H. Young, Jr., sued A.C. Rainey and others for damages allegedly resulting from the Defendants' misappropriation, conversion, or negligent handling of moneys allegedly owed to the limited liability company. The trial court granted partial summary judgment in favor of Defendant, Attorney Mark Moore, on his Motion to Dismiss for failure to state a claim. Then, upon Plaintiffs' Motion for Summary Judgment and the response of the remaining Defendants thereto, the trial court entered summary judgment in favor of the Defendants, A.C. Rainey, Miller Kimbrough, MGK Realty, and Mary Snyder. From these two orders Plaintiffs appeal. We affirm.

State of Tennessee v. Thomas L. Jackson
W2002-01631-CCA-R3-CD
Authoring Judge: Judge David G. Hayes
Trial Court Judge: Judge Jon Kerry Blackwood

A Lauderdale County Jury convicted the Appellant, Thomas L. Jackson, of possession of contraband in a penal institution, a class C felony. On appeal, Jackson argues that the evidence was insufficient to support his conviction. After review, we conclude that the proof is sufficient to establish that Jackson knowingly possessed the marijuana found in his cell. Accordingly, the judgment of conviction is affirmed.

State of Tennessee v. Jonathan Dean
W2002-02422-CCA-R3-CD
Authoring Judge: Judge Joe G. Riley
Trial Court Judge: Judge William B. Acree

In a bench trial, the Obion County trial court convicted the defendant, Jonathan Dean, of sexual battery and sentenced him to two years in the Department of Correction. On appeal, the defendant contends (1) the evidence was insufficient to support his conviction, and (2) his sentence is excessive. Upon review of the record and the applicable law, we affirm the judgment of the trial court.

Joyce M. Lindsey v. State of Tennessee
W2002-01967-CCA-R3-PC
Authoring Judge: Judge Joe G. Riley
Trial Court Judge: Judge J. C. Mclin

The petitioner was originally convicted of second degree murder, aggravated kidnapping, forgery, and theft and received an effective thirty-three-year sentence. In this appeal from the denial of post-conviction relief, the petitioner argues the post-conviction court erred in finding she failed to establish ineffective assistance of counsel. We affirm the judgment of the post-conviction court.

State of Tennessee v. Raymond Writer
E2001-01062-CCA-R3-CD
Authoring Judge: Judge Jerry L. Smith
Trial Court Judge: Judge Phyllis H. Miller
A Sullivan County jury convicted the defendant, Raymond Writer, of rape of a child. The trial court accordingly sentenced the defendant to serve twenty-five years for this conviction at 100%, as mandated by statute. The defendant now brings this direct appeal of his conviction, challenging (1) the trial court’s decision to allow the prosecution to impeach defense witness Gwen Bunnell, (2) the trial court’s decision to allow the testimony of two physicians who repeated the victim’s statements identifying the defendant as the perpetrator, (3) the trial court’s decision to allow the prosecution to introduce the rebuttal testimony of Amy Harris, and (4) the cumulative effect of these testimonies as unduly prejudicial. For the following reasons, we find that none of his allegations merit relief.