APPELLATE COURT OPINIONS

Following a jury trial, Defendant, J. D. Jones, was convicted of attempted second degree murder, a Class B felony, and the unlawful possession of a weapon, a Class C misdemeanor. At the conclusion of Defendant's sentencing hearing, the trial court sentenced Defendant to ten years for the attempted second degree murder conviction and thirty days for the misdemeanor conviction. The trial court ordered Defendant's sentences to run concurrently. On appeal, Defendant argues (1) that the evidence was insufficient to support his convictions; (2) that the prosecution engaged in improper conduct during Defendant's cross-examination; (3) that the trial court erred in failing to order a gunshot residue test of the samples taken from Defendant's hands; (4) that the trial court erred in not considering Defendant's health as a mitigating factor in determining Defendant's sentence; and (5) that the trial court erred in its instruction to the jury on the mens rea element of the offense of attempted second degree murder. After a thorough review of the record in this case, we affirm the judgments of the trial court.

I concur in the results reached by the lead opinion but write separately to amplify some of my concerns. The prosecution has placed the conviction for aggravated child abuse of a child under the age of six in peril through mistakes, inadvertence, or neglect. There exists no evidence of intentional misconduct on the part of the District Attorney General’s office. I hasten to add that this District Attorney General’s office is not an abuser of the power or processes used to prosecute crimes in its jurisdiction. Although I have voted to affirm this conviction, I feel I must add a word of warning to others who may wish to rely upon my decision. At first glance, the practice of amending an indictment without the defendant’s consent at such a late date is looked upon with disfavor. The practice suggests that someone was inattentive to the process and comes dangerously close to violating principles of fundamental fairness. It is akin to changing the rules in the middle of the game, a gamewhich is played by professionals in which inches determine the winner and loser. This competent defense counsel did not appear shaken or surprised by the State’s amendment. Indeed, I have determined trial counsel’s trial strategy was not changed in the least. That is the main reason I have chosen to affirm this conviction. However, I am mindful of the time trial counsel takes in explaining to a client what has just transpired in court. Imagine explaining to a client that after being put to trial once on what was a Class B felony, the client is now facing a Class A felony with a potential for greater punishment. This could have taken away valuable time which counsel could have used to ready for the trial which was about to begin moments later. The impact could have been great upon a trial counsel that was not as prepared or strong as the one in this case.

I join with the majority in affirming the Defendant’s convictions for first degree felony
murder and aggravated child abuse. I dissent, however, from that portion of the opinion which
concludes that no error occurred in amending the indictment for aggravated child abuse. The result changed the crime from a Class B felony to a Class A felony on the morning of trial.

The defendant, Lisa Darlene Heck, pled guilty to six counts of forgery and two counts of theft over $1,000. The Sullivan County trial court imposed a four-year sentence of incarceration on one of the theft cases followed by an effective sentence of four years of probation on the remaining convictions. On appeal, the defendant contends the trial court erred in imposing confinement on the theft charge. We affirm the judgments of the trial court; however, we remand for entry of an amended judgment as to one of the forgery convictions based upon a clerical error.

The Defendant, Latisha Lee Morgan, pled guilty to assault, a Class A misdemeanor. Pursuant to the plea agreement, sentencing was left to the trial judge. After a hearing, the trial judge imposed a sentence of eleven months and twenty-nine days, with sixty days to be served in confinement, and the balance of the sentence to be served on supervised probation. The sole issue in this direct appeal is whether the trial court should have granted the Defendant full probation. We affirm the judgment of the trial court.

The defendant, Ricky Allen Frazier, entered pleas of guilt to possession of Oxycodone, a Class A misdemeanor; possession of more than one-half ounce of marijuana for resale, a Class E felony; manufacturing marijuana, a Class E felony; possession of drug paraphernalia, a Class A misdemeanor; possession of open title, a Class C misdemeanor; violation of the registration law, a Class C misdemeanor; speeding, a Class C misdemeanor; and maintaining a dwelling where a controlled substance is used or sold, a Class D felony. The trial court imposed an effective sentence of six years. As a part of the plea agreement, the defendant reserved a certified question of law under Rule 37(b)(2)(i) of the Tennessee Rules of Criminal Procedure. The single question presented for review is whether the search and seizure of the defendant and his vehicle violated the Fourth Amendment to the United States Constitution and Article 1, Section 7 of the Tennessee Constitution. The judgments are affirmed.

The Defendant, Charles Rice, appeals as of right his conviction for the first degree premeditated murder and first degree felony murder of Emily Branch during the perpetration of a rape. A Shelby County jury found the Defendant guilty of first degree premeditated murder and of first degree felony murder. The trial court merged the convictions into one count of first degree murder. Following a sentencing hearing, the jury found that the proof supported three aggravating circumstances beyond a reasonable doubt: the Defendant had previously been convicted of a violent felony offense, see Tennessee Code Annotated section 39-13-204(i)(2); the murder was especially heinous, atrocious, and cruel, see Tennessee Code Annotated section 39-13-204(i)(5); and the murder was committed during the perpetration of a rape, see Tennessee Code Annotated section 39-13-204(i)(7). The jury further determined that these aggravating circumstances outweighed any mitigating circumstances beyond a reasonable doubt, and sentenced the Defendant to death. The trial court approved of the sentencing verdict. In this appeal as of right, the Defendant contends that: (1) the evidence was insufficient to support his convictions; (2) the trial court improperly restricted the Defendant's right to cross-examine one of the State's witnesses; (3) the trial court improperly excluded evidence tending to prove the guilt of another; (4) the trial court erred in refusing to permit the Defendant to impeach his own witness; (5) the trial court erred by refusing to permit the Defendant to sit at the same table as his attorney; (6) the trial court's failure to instruct on the lesser offense of facilitation was error; (7) the trial court's failure to instruct the jury as to the definitions of knowingly and recklessly as to the offense of felony murder was error; (8) the indictment failed to set forth a capital offense; (9) Tennessee's death penalty statutory scheme is unconstitutional; (10) the evidence is insufficient to establish the statutory aggravating circumstances found by the jury; (11) the trial court improperly instructed the jury as to the (i)(2) aggravator; and (12) the sentence of death imposed in this case is disproportionate compared to other capital cases. After reviewing the record and applicable law, we conclude that there are no errors of law requiring that the Defendant's conviction or sentence be reversed. Accordingly, we affirm the jury's verdict and imposition of the sentence of death.

The defendant pled guilty to violation of a motor vehicle habitual offender ("MVHO") order, a Class E felony, in exchange for a one-year sentence in the Department of Correction. With the permission of the trial court and the State, he sought to reserve as a certified question of law whether the expiration prior to his offense of the three-year time period specified in the order declaring him a MVHO precluded his prosecution for the offense. Because we conclude that the defendant failed to meet the requirements for properly reserving a certified question of law pursuant to Tennessee Rule of Criminal Procedure 37(b)(2), we dismiss the appeal.

Petitioner, Roger Lee Wilson, was indicted by the Anderson County Grand Jury on 28 counts, including charges of child rape, aggravated sexual battery, and statutory rape, and against multiple victims. The trial court severed the counts, and count five was the only count to be tried by a jury. The jury found Petitioner guilty of the charged offense of rape of a child. Following the jury trial, Petitioner entered "best interest" guilty pleas to several other counts, and the remaining counts were dismissed by nolle prosequi. Pursuant to the negotiated plea agreement, Petitioner waived his right to a direct appeal from his conviction and sentence in count five. For all of his convictions, Petitioner received an effective sentence of 22 years. Petitioner filed a petition for post-conviction relief, alleging that his trial counsel was ineffective. Specifically, Petitioner argues that trial counsel was ineffective for failing to raise as an issue at trial that there was a fatal variance between the indictment and the proof; failing to call Hubert Wallace, Art Moore, and Dwayne Wilson as witnesses at trial; and requesting to reserve his opening statement until after the close of the State's proof. Petitioner also argues that his counsel who withdrew from representation prior to trial was ineffective for misplacing evidence. Finally, Petitioner argues that his guilty pleas were not knowingly and voluntarily entered, and that the waiver of his right to appeal is not valid. The trial court denied post-conviction relief and Petitioner appeals. After reviewing the record, we affirm the judgment of the trial court.

The appellant, Kawisha Price, was indicted for aggravated child abuse. She entered a best- interest plea to aggravated assault with a sentence of eight years as a Range II multiple offender, with the trial court to determine the manner of service of the sentence. The trial court subsequently ordered her to serve the sentence in confinement. She appeals, arguing that the trial court decided the manner of service of the sentence before any proof was offered on her behalf and erred in ordering her to serve the sentence in confinement. For the following reasons, we affirm the judgment of the trial court.

The Defendant, Timothy Ellis Ballard, was found to have violated the conditions of his probation by the General Sessions Court of Carroll County. The general sessions court partially revoked the Defendant’s probation and ordered him to serve ninety days in jail. The Defendant appealed. After a hearing, the Carroll County Circuit Court agreed that the Defendant had violated the terms of his probation and remanded the case to the general sessions court  for enforcement of the sentence. In this appeal, the Defendant argues that the circuit court erred by failing to conduct a de novo review of the sentence imposed by the general sessions court and that his sentence was the product of vindictive prosecution. Because the circuit court failed to address the sentencing options following probation revocation, we remand the case to the circuit court for that purpose.

The petitioner, Skyla Sepeda Smith, filed a petition for habeas corpus relief in the Davidson County Criminal Court. In the petition she alleged that the conviction she received after pleading guilty to one count aggravated child abuse is illegal and void because a conflict between the guilty plea and the judgment effectively resulted in an illegal sentence. The Davidson County Criminal Court dismissed the petition. Because the petitioner does not present a cognizable claim for habeas corpus relief, we affirm the dismissal of the petition.

The Appellant, Bryan K. Miller, appeals his conviction for driving under the influence (DUI), fourth offense. On appeal, Miller raises the single issue of whether the evidence was sufficient to support his conviction. Finding the evidence legally sufficient, the judgment is affirmed.

The Appellant, Roger Dale Bryan, was convicted of driving under the influence (DUI), fourth offense, and driving on a revoked license, third offense, by a Bedford County jury. The verdict returned by the jury found Bryan guilty of both driving and being in physical control while under the influence. On appeal, Bryan challenges the legal sufficiency of the proof supporting each basis for conviction. After review of the record, we find the evidence sufficient for both and affirm the judgments of conviction, which were merged into a single conviction for DUI.

In 1998, the defendant, Chad Kilgore, who was indicted for aggravated assault, was determined to be incompetent to stand trial and ordered into a forensic services unit for treatment. The defendant was never transferred from a local mental health care facility. In 2003, the defendant filed a motion seeking relief from the prior order. After a hearing, the trial court denied the motion and directed transfer. This extraordinary appeal followed. Because the appeal was improvidently granted, it is dismissed.

The petitioner, Harrison Pearison, appeals the denial of his petition for post-conviction relief. In this appeal, he asserts that he was denied the effective assistance of counsel. The judgment of the post-conviction court is affirmed.

The defendants, husband and wife Benjamin Bernal Bobadilla and Sheila Teresa Gaye Bobadilla, were each charged by the Greene County Grand Jury with possession of more than .5 grams of cocaine with the intent to sell or deliver, a Class B felony, and possession of drug paraphernalia, a Class A misdemeanor. Following the trial court's denial of their motions to suppress, Benjamin Bobadilla pled guilty to the indicted offenses in exchange for an effective eight-year sentence as a Range I, standard offender, and Sheila Bobadilla pled guilty to facilitation of possession of cocaine with the intent to sell or deliver, a Class D felony, and the misdemeanor drug paraphernalia count of the indictment in exchange for an effective three-year sentence as a Range I, standard offender. Pursuant to Tennessee Rule of Criminal Procedure 37(b)(2), both defendants reserved identical certified questions of law; namely, whether the search warrant and accompanying affidavit issued for their home violated the United States and Tennessee Constitutions as well as Tennessee Rule of Criminal Procedure 41(c). Following our review, we affirm the judgments of the trial court.

Following a revocation hearing, the trial court revoked the probation of Defendant, Calvin Reeves, and ordered him to serve the remainder of his sentence in confinement. Defendant does not appeal the revocation of his probation but argues that the trial court erred in imposing a sentence of confinement instead of an alternative form of sentencing. After a thorough review of the record in this matter, we affirm the judgment of the trial court.

A Sullivan County Criminal Court jury convicted the defendant, Carl E. Muncey, of possession of cocaine, possession of marijuana, and possession of Alprazolam, Class A misdemeanors, and the trial court sentenced him to eleven months, twenty-nine days for each conviction and fined him a total of $2,500. The trial court ordered that the defendant serve his sentences for the possession of cocaine and marijuana convictions consecutively and that all of the convictions be served consecutively to Washington County sentences. The defendant appeals, claiming (1) that the trial court improperly applied enhancement and mitigating factors; (2) that the trial court erred by ordering consecutive sentencing; and (3) that the trial court erred by denying his request for alternative sentences. We conclude that the trial court properly sentenced the defendant relative to the lengths, manner of service, and consecutive nature of the offenses in this case. However, we conclude that the trial court erred in ordering these sentences to be served consecutively to the Washington County sentences, and we remand the case for modification of the judgments by deleting any reference to the Washington County cases.

The petitioner contends that the trial court erred in dismissing his petition for writ of error coram nobis. We conclude that the trial court did not err in finding that the petition is time barred and the petitioner has not advanced any grounds for which the statute of limitations should be tolled. We affirm the dismissal by the trial court.

The appellant appeals from an order revoking her probation. After review, we conclude that the violations of probation conditions were supported by a preponderance of the evidence and affirm the trial court's judgment.

The appellant, Charles Keith, was convicted by a jury in the Sullivan County Criminal Court of one count of possession of marijuana and one count of possession of drug paraphernalia. The trial court sentenced the appellant to consecutive sentences of eleven months and twenty-nine days confinement in the county jail, to be served at seventy-five percent. On appeal, the appellant challenges the trial court's denial of his motion to suppress evidence seized as a result of an investigatory stop of his vehicle. Upon review of the record and the parties' briefs, we affirm the judgments of the trial court.

The appellant, Larry Arnell Adams, was convicted by a jury in the Knox County Criminal Court of one count of especially aggravated kidnapping, one count of aggravated spousal rape, one count of assault, and two counts of rape. He received a total effective sentence of thirty-seven years incarceration in the Tennessee Department of Correction. On appeal, the appellant raises numerous issues for our review, including consolidation and sufficiency. Upon review of the record and the parties' briefs, we affirm the judgments of the trial court.

Following a revocation hearing, the trial court revoked the probation of Defendant, Marsha Karen Yates, and ordered her to spend the remainder of her sentence in confinement. On appeal, Defendant argues that the trial court abused its discretion in revoking her probation. After a careful review of the record in this matter, we affirm the judgment of the trial court.

A Hardin County jury convicted the Defendant, Stephen Keith Frazier, of vehicular homicide and two counts of driving while under the influence of an intoxicant or drug (“DUI”). The trial court merged the two DUI convictions and sentenced the Defendant to ten years for vehicular homicide, and eleven months and twenty-nine days for the DUI conviction, with both sentences to run concurrently. On appeal, the Defendant contends that: (1) the evidence was insufficient to support the convictions; and (2) the trial court erred in sentencing the Defendant by improperly applying enhancement factor (17) to increase the length of the sentence and in not imposing alternative sentencing. Based upon our review, we affirm the conviction for vehicular homicide and vacate the conviction for DUI, this offense being merged into the conviction for vehicular homicide. Additionally, we affirm the Defendant’s sentence for his vehicular homicide conviction, and we vacate the Defendant’s sentence for his DUI conviction. We therefore remand to the trial court for the entry of a single judgment in accordance with this opinion.