APPELLATE COURT OPINIONS

A Franklin County Jury found the Defendant, Troy Robert Whipple, guilty of one count of evading  arrest while operating a motor vehicle, one count of reckless driving, one count of driving on a revoked license, and two counts of vandalism, and the trial court sentenced the Defendant to an effective sentence of four years. The Defendant now appeals, contending that: (1) the evidence presented at trial is insufficient to support his convictions; (2) the trial court committed plain error when it failed to instruct the jury that an unlawful arrest is a defense to a charge of evading arrest while operating a motor vehicle; (3) the trial court improperly sentenced him; and (4) the fines imposed upon him are unreasonable. After thoroughly reviewing the record and the applicable authorities, we affirm the Defendant’s convictions and sentences for evading arrest while operating a motor vehicle, reckless driving, and driving on a revoked license. We reverse the Defendant’s convictions for vandalism, and we remand the case for proceedings consistent with this opinion.

In an action for damages caused by flooding, the Trial Court invoked comparative fault, awarded damages, and ordered defendants to correct conditions which caused the flooding. Both parties appealed. We affirm.

The Petitioner, Kenneth B. White, appeals the trial court's denial of his motion to declare Tennessee Code Annotated section 40-35-114 unconstitutional pursuant to Blakely v. Washington. The State has filed a motion requesting that this Court affirm the trial court's denial of relief pursuant to Rule 20, Rules of the Court of Criminal Appeals, or, in the alternative, dismiss the appeal as there is no right to appeal the denial of a motion to correct an illegal sentence. The Petitioner has not established that he is entitled to habeas corpus relief. Moreover, this Court is not vested with jurisdiction to entertain a request for an appeal of a denial of a motion to reopen a post-conviction petition. Finally, if treated as a Rule 35(b) motion for reduction of sentence, the claim is timebarred. Accordingly, we grant the State's motion and affirm the judgment of the lower court.

A Davidson County jury convicted the Defendant of felony murder. The Defendant appeals as of right from his conviction and contends that the indictment against him should be dismissed with prejudice due to a violation of Article IV of the Interstate Agreement on Detainers. Finding no reversible error, we affirm the judgment of the trial court.

The defendant, Jerald M. Seay, was found guilty by a Shelby County jury of unlawful possession of cocaine with intent to sell and unlawful possession of cocaine with intent to deliver, Class C felonies.  After merging the two counts together into a single conviction for unlawful possession of cocaine with intent to sell, the trial court sentenced the defendant as a Range II, multiple offender to ten years in the Department of Correction and fined him $2,000. On appeal, he argues: (1) the evidence was insufficient to support his conviction; and (2) the trial court erred in allowing him to be impeached with stale convictions. Following our review, we affirm the judgment of the trial court.

Before the court is an interlocutory appeal by the State, pursuant to Rule 9 of the Tennessee Rules of Appellate Procedure. The defendant, Eric Berrios, moved to suppress evidence seized during a search of his automobile. The trial judge concluded that the evidence had been illegally seized and granted the motion to suppress. We affirm the judgment of the trial court and remand this case for further proceedings.

The Petitioner, Johnny Shields, appeals the post-conviction court’s dismissal of his petition for post-conviction relief as time-barred. We affirm the judgment of the post-conviction court.

The chancery court awarded Plaintiffs Weeks damages for the taking of trees by the City of Eastview. Eastview appeals, and we vacate the award of damages against Eastview for lack of subject matter jurisdiction. On cross-appeal, Weeks assert the trial court erred in failing to assess damages against Defendant Ingram and in determining Weeks had impliedly dedicated a roadway known as Autumn Lane as a public roadway. We modify and affirm on these issues.

I agree with the results reached by the trial court – including the award of attorney’s fees – as affirmed by the majority opinion. I write separately to express my disagreement with the appellant’s belief and the majority’s belief that the trial court did not find a change in circumstances warranting a change in the custodial arrangement. I recognize that the trial court did not find a change in circumstances warranting a change in the identity of the primary residential parent. However, I believe the trial court did find that the circumstances regarding the child’s custodial arrangement had changed so as to “affect[] the child’s well-being in a meaningful way,” Blair v. Badenhope, 77 S.W.3d 137, 150 (Tenn. 2002); and that it then proceeded to (1) modify the existing parenting plan by transferring decision-making authority regarding the educational/extracurricular activities of the child from the father to the mother and (2) grant the mother the right to obtain a second opinion as to medical matters.

I concur with that portion of the majority opinion which affirms the judgments of conviction for the offenses of evading arrest while operating a motor vehicle, reckless driving, and driving on a revoked license. I disagree with the conclusion that the two convictions of vandalism must be reversed and dismissed. Accordingly, I dissent from that portion of the majority opinion.

The petitioner, Deanna Whitman, pleaded guilty to four counts of selling a schedule II drug within 1,000 feet of a school, for which she received an effective 16-year sentence to be served as a Range I offender at 100 percent. The petitioner sought post-conviction relief alleging that she received ineffective assistance of counsel and therefore unknowingly pleaded guilty to the instant crimes. At the conclusion of an evidentiary hearing, the post-conviction court denied the petition finding that the petitioner had received effective representation and had entered her pleas knowingly. Aggrieved of this ruling, the petitioner now appeals, and after a thorough review of the record and applicable law, we affirm the judgment of the post-conviction court.

A Knox County Criminal Court jury convicted the defendant, James Vanover, of one count of rape of a child, a Class A felony, and two counts of aggravated sexual battery, a Class B felony, and the trial court sentenced him to twenty years for the rape and eight years for each aggravated sexual battery to be served consecutively at 100% for an effective sentence of thirty-six years in the Department of Correction. The defendant appeals, claiming that the evidence is insufficient and that his sentence is excessive. We conclude that the evidence is sufficient, but we conclude that the trial court improperly ordered consecutive sentencing. We remand the case to the trial court for resentencing.

The defendant, Bernardino Lira, pled guilty to DUI, third offense, and driving on a revoked license, receiving concurrent sentences of eleven months and twenty-nine days and ten days, with all but four months suspended. He reserved as a certified question whether the trial court erred in denying his motion to suppress the fruits of the stop of his vehicle. We conclude that the question is properly certified and that the trial court ruled correctly in denying the motion to suppress.

The appellant, Larry Davis, was convicted by a jury in the Shelby County Criminal Court of driving under the influence (DUI), a Class A misdemeanor. He received a sentence of eleven months and twenty-nine days in the Shelby County Workhouse. On appeal, the appellant raises several issues relating to the sufficiency of the evidence. Upon our review of the record and the parties’ briefs, we affirm the judgment of the trial court.

This is a construction case. The defendant homeowners entered into an oral contract with the plaintiff contractor to construct a house for the defendants. After the contractor had substantially completed construction of the house, the homeowners discharged the contractor. The contractor then filed suit for unpaid costs and fees. The defendant homeowners counter-sued, alleging breach of the original contract. After a trial, the trial court entered a final order granting a monetary award to the contractor for his unpaid fees, minus several credits awarded to the defendant homeowners. The record does not include any factual findings or legal conclusions detailing the basis for the award.  The defendant homeowners appeal, asserting that the trial court erred in admitting the testimony of an expert witness and in its calculation of the award to the contractor. We affirm the trial court’s admission of the expert testimony, but vacate the judgment and remand to the trial court for factual findings and legal conclusions in order to resolve the remaining issues on appeal.

The petitioner, Jerry L. Cowan, pled guilty in the Blount County Circuit Court to second degree murder, and he received a sentence of thirty-five years as a Range II offender. Subsequently, he filed in the Lauderdale County Circuit Court a petition for a writ of habeas corpus, alleging that his sentence was void. The habeas corpus court dismissed the petition without the appointment of counsel or an evidentiary hearing. The petitioner appeals that dismissal. Upon our review of the record and the parties’ briefs, we affirm the judgment of the habeas corpus court.

The Appellant, Scottie D. Pennington, was convicted by a Jackson County jury of driving under the influence (DUI) and felony reckless endangerment. As a result of these convictions, Pennington received consecutive sentences of eleven months and twenty nine days for DUI and two years for reckless endangerment. On appeal, Pennington argues that the evidence is insufficient to support his convictions. Specifically, he asserts that the State failed to prove his identity as the driver of the vehicle or that the vehicle was operated in a reckless manner. After review of the record, we affirm.

The defendant, David Ivy, was convicted of premeditated first degree murder and was sentenced to death. In imposing a death sentence, the jury found that two aggravating circumstances, i.e., the defendant was previously convicted of one or more felonies whose statutory elements involved the use of violence to the person and the murder was committed for the purpose of avoiding, interfering with, or preventing a lawful arrest or prosecution of the defendant or another, had been established beyond a reasonable doubt. Tenn. Code Ann. § 39-13-204(i)(2) and (6) (Supp. 1999). In addition, the jury determined that the evidence of aggravating circumstances outweighed the evidence of mitigating circumstances beyond a reasonable doubt. Id. at (c). The Court of Criminal Appeals affirmed the convictions and the death sentence.

After the appeal was docketed in this Court, we entered an order identifying eight issues for oral argument.¹ Having reviewed the record and applicable authority, we now hold that: 1) the evidence was sufficient to support the first degree murder conviction; 2) the trial court did not err in impaneling an anonymous jury; 3) the trial court properly ruled that the victim’s statements were admissible under the “forfeiture by wrongdoing” hearsay exception; 4) the evidence supported the jury’s findings that the two aggravating circumstances were proven beyond a reasonable doubt; 5) the trial court erred during the sentencing phase in instructing the jury that two of the five prior felony convictions relied on by the prosecution involved violence to a person, but the error was harmless beyond a reasonable doubt; 6) the trial court erred in allowing the prosecution to introduce the defendant’s prior indictment for first degree murder in the sentencing phase of the trial where the defendant had been convicted of second degree murder, but the error did not affect the outcome; 7) the trial court erred in ruling that defense counsel could not argue residual doubt as a mitigating circumstance during the sentencing phase, but the error did not affect the outcome; and 8) the evidence of aggravating circumstances outweighed the evidence of mitigating circumstances beyond a reasonable doubt, and the death sentence was not arbitrary or disproportionate. We also agree with the Court of Criminal Appeals’ conclusions with respect to the remaining issues, the relevant portions of which are included in the appendix. Thus, the Court of Criminal Appeals’ judgment is affirmed.

The Petitioner, Cumecus R. Cates, appeals from the summary dismissal of his petition for post-conviction relief. The trial court summarily dismissed the petition based on its determination that the underlying conviction was on appeal to this Court. It is from the order of dismissal that the Petitioner appeals. The State concedes that the trial court erred in summarily dismissing the petition. We reverse the judgment of the trial court and remand this case for further proceedings.

The petitioner, Robert L. Moore, filed in the Hardeman County Circuit Court a petition for a writ of habeas corpus, alleging that his 1994 conviction for possession of cocaine with intent to sell, his three 1991 convictions for sale of cocaine, and his three 1991 convictions for concealing stolen property are void. The habeas corpus court dismissed the petition without the appointment of counsel or an evidentiary hearing, and the petitioner appeals that dismissal. Upon our review of the record and the parties’ briefs, we affirm the judgment of the habeas corpus court.

The Appellant, Arthur Lee Harrison, was convicted by a Davidson County jury of the attempted voluntary manslaughter of his estranged wife. On appeal, Harrison argues that the evidence is insufficient to support the conviction. After review, we affirm.

The Petitioner, Roderick Harris, appeals the Shelby County Criminal Court’s dismissal of his petition for post-conviction relief. In 2004, he pled guilty to aggravated robbery and received a sentence of ten years. On appeal, the Petitioner argues that trial counsel was ineffective for failing to seek a pretrial mental evaluation. After a review of the record, we affirm the post-conviction court’s dismissal of the petition.

The majority affirms consecutive sentences based upon a finding that the appellant’s criminal history is extensive. T.C.A. § 40-35-115(b)(2). The pre-sentence report reflects no documentation of a prior conviction of any type. The appellant’s statements to the pre-sentence officer indicate excessive alcohol and drug abuse and that he completed a drug and alcohol treatment program in 1983. Based upon the appellant’s self-reporting of drug use, the majority concludes that consecutive sentences are warranted. I am unable to join with the majority in concluding that a defendant’s self-reporting of uncharged alcohol or drug abuse will warrant consecutive sentences. This information is sought in the pre-sentence report for the purpose of fashioning an individualized sentence under sentencing guidelines, not for purposes of gathering incriminating evidence. To utilize the offender’s statements within the report for increased penal sanctions is counterproductive in that it discourages truthfulness and is inconsistent with the purposes of the pre-sentence report. If the State wishes to introduce evidence of uncharged criminal activity, then it may do so; however, the defendant should not be penalized for candor.

The appellant, Paul Neil Laurent, was indicted in 2003 for twelve counts of various crimes allegedly committed against his step-daughter and daughter. After a bench trial, the appellant was convicted of aggravated kidnapping, attempted aggravated sexual battery, aggravated sexual battery, two counts of sexual battery by an authority figure, and one count of attempted child neglect. The appellant received a total effective sentence of seventeen years. The appellant appeals, arguing that: (1) the trial court erred by denying the motion for judgment of acquittal and motion to dismiss regarding the charge of aggravated kidnapping; (2) the trial court erred in determining that the appellant was guilty of attempted aggravated sexual battery and aggravated sexual battery because the evidence was insufficient to support the convictions; and (3) the trial court erred in sentencing the appellant. For the following reasons, we affirm the judgment of the trial court.