APPELLATE COURT OPINIONS

In this interlocutory appeal, the defendant seeks review of the state's denial of pretrial diversion for the offense of sexual battery. We conclude that the prosecutor failed to consider and weigh all relevant factors and, under the circumstances of this case, improperly relied upon the defendant's refusal to take responsibility for his actions. Accordingly, we reverse the order of the trial court and remand this matter to the district attorney general for further consideration of the defendant's request for pretrial diversion in accordance with this opinion.

Glenda Ponder appeals the DeKalb County Criminal Court's revocation of her probationary sentence and ordering into effect her incarcerative sentence in the Department of Correction. Upon review, we are unpersuaded that the lower court abused its discretion and therefore affirm.

The defendant, Ricky Lee Inscore, pled nolo contendere to aggravated burglary and sexual battery. The Sullivan County trial court sentenced the defendant to three years for aggravated burglary and two years for sexual battery as a Range I standard offender to be served concurrently in the Department of Correction. In this appeal of right, the defendant presents the issue of whether the trial court erred in denying him probation or alternative sentencing. After reviewing the record, we affirm the judgments of the trial court.

A Rutherford County jury convicted the defendant, Dondie Eugene Tidwell, of two counts of first degree murder, one count of conspiracy to commit first degree murder, one count of especially aggravated kidnapping, and one count of theft over $10,000. The trial court merged the defendant’s two first degree murder convictions and ordered the defendant to serve twenty-three years for his conspiracy to commit first degree murder conviction, twenty-three years for his especially aggravated kidnapping conviction, and four years and six months for his theft conviction.  The trial court ordered these sentences to run concurrently to each other and consecutively to the defendant’s sentence for his merged first degree murder conviction, life without the possibility of parole. Thus, the defendant received an aggregate sentence of life without the possibility of parole plus twenty-three years. The defendant now brings this appeal, challenging his convictions and his sentence on the bases that (1) the trial court erred by refusing to allow him to excuse a juror using a peremptory challenge; (2) the evidence introduced at trial is insufficient to support his convictions; (3) the prosecutor made inappropriate comments when delivering the state’s opening statement; (4) the trial court erred by allowing an expert to testify on subjects beyond the scope of that witness’s expertise; (5) the trial court erred by refusing to allow him to introduce evidence of the drugs that were present in the victim’s system at the time of the victim’s death; (6) the trial court instructed the jury incorrectly on the charge of conspiracy; (7) the trial court erred by admitting a photograph of the victim taken after the victim’s death during the sentencing phase of the trial; (8) the trial court erred by refusing, in the sentencing phase, to allow the defendant to compare his potential sentence to the sentence received by his co-conspirator; (9) the trial court erred by allowing the introduction of certain hearsay evidence; (10) the prosecutor exceeded the permissible scope of his rebuttal closing argument; and (11) the trial court erred by imposing consecutive sentencing. After reviewing the record, we find that the trial court did err by refusing to allow the defendant to exercise a peremptory challenge and that therefore the defendant is entitled to a new trial on this basis.
However, we find that the remainder of the issues presented in this appeal have either been waived or lack merit.

On February 2, 2000, the defendant was convicted by a jury of the offense of aggravated robbery. He received a sentence of nine years in the state penitentiary. In this appeal he raises eight (8) issues for our review: (1) whether the evidence is sufficient to support the verdict; (2) whether the defendant was tried by a fair and impartial jury; (3) whether the trial court committed reversible error in failing to instruct the jury on the offenses of assault or aggravated assault; (4) whether there was prosecutorial misconduct; (5) whether the defendant was subjected to a constitutionally flawed show-up shortly after the robbery; (6) whether the trial court correctly instructed the jury as to what they must do if they have a reasonable doubt that the defendant possessed the requisite mental state for the offense; (7) whether the trial court should have dismissed the case because the state destroyed evidence fundamental to the defense; (8) whether the defendant's sentence is excessive.

Defendant attempted to shoot and kill Johnny Maxwell, missed, and accidentally shot twelve-year-old Brittney Taylor, seriously injuring her. A jury convicted the defendant of attempted first degree murder of Maxwell and attempted first degree murder of Taylor. He appeals, claiming the trial court erroneously charged the jury, relative to the doctrine of transferred intent; that double jeopardy bars convictions of both offense; and the evidence was insufficient to sustain the attempted first degree murder convictions. We agree and affirm both convictions.

The defendant, Richard Bokanper, appeals his Shelby County Criminal Court jury convictions of burglary and theft. Following the guilty verdicts, the trial court sentenced the defendant as a career offender to an effective term of twelve years in the Department of Correction. On appeal, the defendant challenges only the sufficiency of the convicting evidence. Because the evidence insufficiently corroborates the inculpative testimony of an accomplice, we reverse the convictions and dismiss the charges.

The petitioner, James Darrell Horn, appeals the Sullivan County Criminal Court's denial of post-conviction relief. In his post-conviction petition, the petitioner challenged his jury convictions on more than 30 aggravated burglary counts and nearly as many theft counts. As a result of his many convictions, the petitioner is serving an effective 90-year sentence in the Department of Correction. On direct appeal, his convictions and sentences were affirmed by this court. See State v. James D. Horn, No. 03C01-9712-CR-00537 (Tenn. Crim. App., Knoxville, Jul. 20, 1999), perm. app. denied (Tenn. 2000). The petitioner asserted that his previous appellate counsel was ineffective because she did not raise on direct appeal whether the trial court (1) erred in not suppressing the petitioner's pretrial statements and (2) in not suppressing physical evidence seized during a warrantless search of his residence. He also claimed that his trial and appellate counsel were ineffective because they did not properly challenge the sufficiency of the evidence on three or four specific counts of the indictments. After an evidentiary hearing, the trial court entered a very thorough order denying post-conviction relief. Upon our review, we affirm.

In December 1997, the defendant was convicted of the sale of cocaine over .5 grams, a Class B felony, and sentenced to eight years, with all but sixty days suspended, and the balance to be served on probation. In October 1998, his probation was revoked because he was convicted that year of possession of marijuana, criminal impersonation, and contributing to the delinquency of a minor. He was incarcerated for ninety days and again placed on probation, this time in community corrections. In December 1998, another probation violation warrant was issued, this time alleging that the defendant had absconded. In September 1999, his probation was revoked and he was ordered to serve the balance of his sentence in the Department of Correction. Apparently, he was again placed on probation, with the case transferred to Michigan. In April 2001, another probation warrant was issued, charging the defendant with failing two drug screens and attempting to adulterate a drug screen. Following a hearing, the court revoked the defendant's probation and he timely appealed. We affirm the judgment of the trial court.

The defendant, Ronald David Wallace, Jr., was convicted of four counts of aggravated sexual battery. See Tenn. Code Ann. § 39-13-504(a)(4) (providing that “[a]ggravated sexual battery is unlawful sexual contact with a victim by the defendant . . . [where] [t]he victim is less than thirteen (13) years of age”). The trial court ordered concurrent sentences of eight years. In this appeal of right, the defendant argues that the evidence was insufficient to support his convictions. The judgments of the trial court are affirmed.

The Defendant, Jeffrey Lynn Murphy, pled guilty to one count of fraud and was placed on probation for three years. The Defendant's supervising officer subsequently filed a probation violation warrant and a hearing was held. The trial court revoked the Defendant's probation and ordered him to serve his sentence in the Department of Correction. The Defendant now appeals, claiming that the trial court should have extended his period of probation, instead. We affirm the trial court's judgment.

The appellant, Brenda McKenzie, pled guilty in the Chester County Circuit Court to one count of facilitating the manufacture of methamphetamine and one count of possession of anhydrous ammonia, both Class E felonies. The plea agreement provided for concurrent sentences of two years to be served on community corrections. The appellant moved the trial court to waive or suspend the mandatory fines on both offenses. The court denied the motion and the appellant now appeals. Upon review of the record and the parties' briefs, we affirm the judgment of the trial court.

Defendant, David Earl Palmer, was convicted by a jury of aggravated burglary and aggravated rape. The trial court sentenced Defendant to five years for the aggravated burglary conviction and twenty-five years for the aggravated rape conviction. In his appeal, Defendant contends that the evidence presented at trial was insufficient to sustain either conviction. After a thorough review of the record, we affirm the judgments of the trial court.

The defendant, Tina Cunningham, was convicted of two counts of introduction of contraband into a penal facility. The trial court imposed a six-year sentence and granted immediate probation. Later, the trial court extended the original six-year sentence by two years when the defendant was convicted of two counts of forgery, but permitted the defendant to remain on probation. The trial court imposed an effective sentence of four years for the forgery convictions, to be served on probation and consecutively to the sentence for introduction of contraband into a penal facility. At some point, the trial court ordered the defendant to complete a drug program. When she failed to do so, the trial court revoked the defendant's probation and ordered her to serve the balance of her sentence in a community corrections program. When the defendant failed to comply with the requirements of the program, the trial court revoked the community corrections sentence and ordered the defendant to serve the balance of her sentence in the Department of Correction. In this appeal as of right, the single question presented for our review is whether the trial court erred by ordering the defendant to fully serve the balance of her sentence. The judgment of the trial court is affirmed.

The petitioner, Robert L. Wilks, appeals from the trial court's denial of his petition for habeas corpus relief. The trial court did not appoint counsel. In this appeal of right, the petitioner alleges that the trial court erred by denying the appointment of counsel and by entering the order of summary dismissal. The judgment is affirmed.

The defendant, Nicole Beaudion, also known as Nikki Jo Napier, appeals pursuant to Tennessee Rule of Criminal Procedure 35(b). After pleading guilty to facilitation of especially aggravated robbery, a Class B felony, and agreeing to accept a fifteen-year sentence to be served in the Department of Correction with a 30 percent release eligibility date, the defendant filed a timely Rule 35(b) motion to reduce her sentence to ten years. The trial court denied this motion, and the propriety of this action is now challenged on appeal.

The defendant, Antoinette Hill, was convicted of first degree premeditated murder. The trial court imposed a life sentence. In this appeal of right, the defendant challenges the sufficiency of the evidence and argues that the trial court erred in its instructions to the jury. The judgment is affirmed.

The defendant, Tracy R. Pipes, appeals the Hardin County Circuit Court's revocation of her drug-offense probation. The court ordered her to serve the effective eight-year sentence in the Department of Correction. Because the record supports the lower court's actions, we affirm.

Pursuant to Tennessee Code Annotated section 39-13-213(a)(1) (1997), the defendant, Adrianne Elizabeth Noles, was charged with vehicular homicide by recklessness in the Haywood County Circuit Court. She submitted a guilty plea to the charge, a Class C felony, and agreed to have the trial court determine the length and manner of service of her sentence. After a sentencing hearing, the trial court imposed a three-year sentence to be served in the Department of Correction.  Aggrieved of the trial court’s rejection of any sentencing alternative to incarceration, she appeals.  We affirm.

The petitioner was convicted of two counts of attempted first degree murder and three counts of reckless endangerment and received an effective sentence of thirty years. On direct appeal, this court affirmed the petitioner's convictions and sentence. The petitioner now contends that his trial counsel provided ineffective representation. After reviewing the record, we conclude that the petitioner has failed to meet his burden of demonstrating that his trial counsel provided ineffective assistance. Accordingly, we affirm the denial of the petition for post-conviction relief.

A jury convicted the Defendant of aggravated robbery and attempted robbery. The trial court sentenced the Defendant to an effective nine-year term. The Defendant appealed, and our Court affirmed the case in part, but remanded the case in part for the trial court to determine whether the Defendant's right to a speedy trial was violated. On remand, the trial court found that the Defendant's right to a speedy trial had not been violated. The Defendant now appeals from the trial court's order denying his motion to dismiss for a violation of his right to a speedy trial. Finding no error, we affirm the judgment of the trial court.