APPELLATE COURT OPINIONS

A Warren County jury convicted the Defendant-Appellant, Margle Ward, 1 of facilitation of theft of property over $1,000, a Class E felony. He was sentenced as a multiple offender to a four-year term of imprisonment and assessed $1,332.50 in fines. On appeal, Margle claims (1) the insufficiency of the evidence; (2) the trial court erred in denying his motion to exclude a statement he made to Jeff Panter; (3) the trial court erred in denying his motion to exclude the testimony of Jason Ward; and (4) his sentence was excessive. Upon review, we affirm the judgment of the trial court.

I respectfully dissent from the majority’s holding that the evidence is insufficient to support the Defendant’s convictions. The evidence at trial established that the Defendant lived across the street and two houses down from the victims’ burglarized home. A partially smoked cigarette was found inside the victims’ home, and subsequent DNA testing established that the Defendant’s DNA was present on the cigarette. Detective Grooms described the cigarette as not being crumpled and stated that the cigarette looked as if it had been partially smoked and then forgotten inside the house. Detective Grooms rejected the idea that the cigarette was tracked into the house from the street and stated that the cigarette appeared to have been placed in the house by the perpetrator. When asked on crossexamination whether a cigarette could stick to a person’s shoe, Detective Grooms stated that he has never had a cigarette stick to his shoe. When officers attempted to apprehend the Defendant at his house, the Defendant, who was sitting on his front porch, ran from the officers. The Defendant was found ten minutes later. Given the presence of the Defendant’s DNA on the cigarette, the condition and location of the cigarette, and the Defendant’s flight to avoid contact with law enforcement, a reasonable jury could conclude that the Defendant was guilty beyond a reasonable doubt. The aforementioned evidence, coupled with Detective Grooms’s testimony, excludes every reasonable hypothesis other than guilt.

A Cocke County Circuit Court jury convicted the defendant, David Lynn Sisk, of aggravated burglary, theft of property valued at more than $1,000 but less than $10,000, and theft of property valued at more than $10,000 but less than $60,000. The trial court determined that the defendant was a career offender and imposed a total effective sentence of 27 years' incarceration. In this appeal, the defendant challenges the sufficiency of the convicting evidence, claims that the indictments charging theft are multiplicitous, argues that the trial court erred in its jury charge, and contends that the trial court erroneously declared him a career offender. Because the evidence was insufficient to support the defendant's convictions, we reverse the judgments of the trial court and dismiss the charges in this case. To facilitate any further appellate review, we also conclude that the theft indictments were impermissibly multiplicitous, necessitating the dismissal of the defendant's conviction of theft of property valued at more than $1,000 but less than $10,000, and that the trial court erroneously classified the defendant as a career offender.

The Defendant, Billy Earl McIllwain, Jr., was convicted by a Gibson County jury of one count of first degree murder, two counts of aggravated assault, and one count of possession of a deadly weapon with the intent to employ it in the commission of an offense. He received an effective sentence of life imprisonment plus six years. In this direct appeal, the Defendant's only challenge is to the sufficiency of the convicting evidence. After a review of the record, we affirm the judgments of the trial court.

The Defendant-Appellant, Charles Haywood, was indicted by the Shelby County Grand Jury for one count of especially aggravated kidnapping, one count of attempted second degree murder, one count of aggravated robbery by use or display of a deadly weapon, and one count of possessing a firearm in the commission of attempted second degree murder. He entered an open guilty plea to one count of aggravated robbery, a Class B felony, as a Range I, standard offender, and the Shelby County Criminal Court sentenced him to twelve years of confinement in the Tennessee Department of Correction. On appeal, Haywood argues that his sentence is excessive. Upon review, we affirm the trial court's judgment.

Petitioner, Walter Himes, appeals the post-conviction court's dismissal of his post-conviction petition in which Petitioner alleged that his trial counsel rendered ineffective assistance of counsel, and that his guilty pleas were not voluntarily or knowingly entered. After a thorough review we affirm the judgment of the post-conviction court.

Following a jury trial, Defendant, Nader Daqqaq, was found guilty of driving under the influence ("DUI"). The trial court sentenced Defendant as a Range I, standard offender, to eleven months, twenty-nine days. The trial court ordered Defendant to serve nine months in confinement before being eligible for work release or trusty status. On appeal, Defendant argues that the evidence was insufficient to support his conviction. After a thorough review, we affirm the judgment of the trial court.

The defendant, Bryan Williams, was convicted of one count of second degree murder, a Class A felony; one count of attempted second degree murder, a Class B felony; and one count of reckless endangerment, a Class E felony. He was sentenced to twenty-three years for the Class A felony, ten years for the Class B felony, and two years for the Class E felony. All sentences were ordered to run consecutively, for a total effective sentence of thirty-five years. On appeal, he argues that the evidence was insufficient to support his convictions and that the trial court erred in failing to declare a mistrial following the testimony of one witness. After careful review, we affirm the judgments from the trial court.

After a jury trial, Petitioner Alton Tappan was convicted of aggravated burglary and theft of property valued at $1,000 or more but less than $10,000. He was given an effective sentence of 14 years incarceration. His conviction was affirmed on appeal. He then filed a petition for post-conviction relief, claiming he received ineffective assistance of trial and appellate counsel. After an evidentiary hearing, the post-conviction court denied relief. We conclude that appellate counsel's failure to raise the issue of the trial court's failure to charge circumstantial evidence was deficient performance and that the failure was prejudicial. We therefore remand the case to the trial court for a new trial on the theft conviction. The judgment of the post-conviction court is affirmed in all other respects.

Defendant, John Wayne Wright, presents for review a certified question of law pursuant to Tennessee Rule of Criminal Procedure 37(b)(2). Defendant entered a plea of guilty to possession of more than 0.5 ounces of marijuana with the intent to sell, a Class E felony, and possession of drug paraphernalia, a Class A misdemeanor. The trial court sentenced Defendant to concurrent sentences of two years for his felony conviction and eleven months, twenty-nine days for his misdemeanor conviction. Both sentences were to be suspended and Defendant placed on probation after serving forty-five days in confinement. As a condition of his guilty pleas, Defendant properly reserved two certified questions of law concerning the stop and search of his vehicle and the subsequent search of his home. After a review of the record, we affirm the judgments of the trial court.

The defendant, David Henry Hammon, was convicted by a Davidson County jury of domestic assault and child abuse, both Class A misdemeanors, and was sentenced by the trial court to an effective term of eleven months, twenty-nine days to be served on supervised probation. On appeal, he argues that the trial court erred by denying his request for judicial diversion without considering and weighing all the appropriate factors. Following our review, we affirm the trial court's denial of judicial diversion but remand for the entry of corrected judgments to reflect that the defendant was sentenced to concurrent terms of eleven months, twenty-nine days for the child abuse conviction and six months for the domestic assault conviction as stated in the trial court's sentencing order.

The defendant, Randy Clayton Norman, was convicted by a Maury County Circuit Court jury of second degree murder, a Class A felony, and sentenced to twenty years in the Department of Correction. On appeal, he argues that: (1) he received the ineffective assistance of counsel; (2) the trial court did not perform its duty as the thirteenth juror; (3) the evidence is insufficient to sustain his conviction; and (4) the trial court erred in sentencing him. After review, we affirm the defendant's conviction but modify the defendant's sentence to fifteen years.

The petitioner, David Bankston, appeals from the summary dismissal of his petition for writ of habeas corpus, alleging that the two-year sentence imposed for his 2007 conviction of ninth offense driving under the influence has expired. Because the petitioner has failed to establish that his sentence has, in fact, expired, or that he is otherwise entitled to habeas corpus relief, we affirm the denial of habeas corpus relief.

The defendant, Demetrie Darnell Owens, was convicted by a Marshall County jury of aggravated burglary, a Class C felony, and theft of property over $1000, a Class D felony, and was sentenced by the trial court as a Range II offender to an effective sentence of ten years in the Department of Correction. On appeal, he argues that the evidence was insufficient to sustain his convictions and that the trial court erred by imposing an excessive sentence. Following our review, we affirm the judgments of the trial court.

The Defendant, George Vincent Ware, pled guilty in the Hamilton County Criminal Court in two separate cases on September 27, 2007. In Case Number 262379, the defendant pled guilty to introduction of contraband in a penal institution, a Class C felony, and was sentenced as a multiple offender to seven years, suspended to "intensive probation." In Case Number 262471, the defendant pled guilty to theft of property, a Class D felony; criminal impersonation, a Class B misdemeanor; and driving on a revoked or suspended license, a Class A misdemeanor. The defendant was sentenced as a standard offender to three years, six months, and eleven months and twenty-nine days, respectively, for the convictions in Case Number 262471. The trial court ordered the sentences in Case Number 262471 to be served concurrently with one another but consecutively to the sentence imposed in Case Number 262379. Thus, the defendant received a total effective sentence of ten years. Following the filing of a probation violation warrant and a finding that the defendant violated the terms of his probationary sentence, the trial court revoked his probation and ordered the defendant to serve the balance of his sentence in custody. In this appeal as of right, the defendant contends that the trial court abused its discretion by ordering the dDefendant to serve his sentence. Following our review, we affirm the judgments of the trial court.

The Defendant, Marty Ray Harris, pled guilty in the Davidson County Criminal Court to theft of property valued at $10,000 or more but less than $60,000, a Class C felony. He received a four-year sentence, to be served in split confinement of two months and the balance on probation. At issue in this appeal is the amount of restitution for damages caused by his crime. We reverse the portion of the judgment awarding restitution to Christopher Edwards, and we remand the case to the trial court for a hearing on the proper amount of restitution for the named victim, John Witherspoon.

The defendant, Lisa Christina Simpson Tuttle, appeals the Davidson County Criminal Court's revocation of her suspended sentence. Because the defendant failed to file a proper notice of appeal and because the interests of justice do not require that this court excuse the failure to file the notice of appeal, we dismiss the appeal.

The Petitioner, Gerome J. Smith, was convicted of first degree murder and sentenced to life imprisonment. In May 2008, the petitioner filed a petition for a writ of error coram nobis, in which he alleged the existence of newly discovered evidence. The trial court dismissed the petition based upon the one-year statute of limitations. On appeal, the petitioner contends the dismissal was an unconstitutional denial of his right to due process. After a thorough review of the record and applicable law, we affirm the trial court's judgment.

A Montgomery County jury convicted the Defendant, Mario A. Reed, of aggravated burglary, two counts of aggravated rape, and theft under $500, and the trial court sentenced him to an effective sentence of forty years in the Tennessee Department of Correction. On appeal, the defendant contends: (1) the juvenile court erred when it transferred his case to the circuit court for him to be tried as an adult; (2) the trial court erred when it instructed the jury on aggravated rape; and (3) the trial court erred when it sentenced him. After a thorough review of the record and applicable authorities, we affirm the trial court's judgments.

The petitioner, Dennis B. Reece, pled guilty to second degree murder in October 2005. In September 2008, he filed a petition for post-conviction relief in the convicting court. The post-conviction court dismissed the petition as untimely. On appeal, the petitioner argues that the Tennessee Supreme Court's opinion in State v. Gomez, 239 S.W.3d 733 (Tenn. 2007) ("Gomez II"), created a new constitutional rule entitled to retrospective application and that this court should deem the one-year statute of limitations period to extend from the publication of Gomez II. Following our review, we affirm the judgment of the postconviction court.

The petitioner, Benny Taylor, Jr., appeals the denial of his petition for post-conviction relief wherein he challenged his 2008 Lauderdale County Circuit Court conviction of possession with intent to deliver cocaine. In this appeal, he contends that he was denied the effective assistance of counsel at trial. Discerning no error, we affirm the judgment of the post-conviction court.

A Hawkins County Criminal Court jury convicted the defendant, Ron "Cotton" Seals, of one count of possession with intent to deliver .5 grams or more of cocaine; one count of possession with intent to deliver dihydrocodeinone, a schedule II controlled substance; one count of possession with intent to deliver alprazolam, a schedule IV controlled substance; one count of possession with intent to deliver one-half ounce or more of marijuana; one count of maintaining a dwelling where controlled substances are used, kept, or sold; and one count of possession of drug paraphernalia. The trial court imposed a total effective sentence of 20 years' incarceration. In this appeal, the defendant contends that the evidence was insufficient to support his convictions and that his sentence is excessive. Discerning no error, we affirm the judgments of the trial court.

The defendant, Joseph Shaw, Jr., was convicted by a Madison County jury of one count of rape, a Class B felony, and one count of sexual battery, a Class E felony. The trial court merged the sexual battery conviction into the rape conviction and sentenced the defendant as a Range I offender to eleven years at 100% in the Department of Correction. On appeal, the defendant challenges the sufficiency of the evidence and argues that the trial court erred by admitting a prior consistent statement of the victim without issuing a limiting instruction and by imposing an excessive sentence. Following our review, we affirm the judgment of the trial court.

Following a jury trial, the Defendant, Terry Lynn Craft, was convicted of two counts of vehicular homicide by intoxication, a Class B felony. See Tenn. Code Ann. _ 39-13-213(b)(2). In this direct appeal, he contends that: (1) the State presented evidence insufficient to convict him; and (2) the trial court violated the hearsay rule in admitting a recording of a 911 call. After our review, we affirm the judgment of the trial court.