APPELLATE COURT OPINIONS

This appeal arises out of a divorce between the parties. In its decree, the trial court declared the parties were divorced, divided the marital property and the debts of the parties, ordered the husband to pay the entire balance of the guardian ad litem fees, named the wife the primary residential parent, and ordered the husband to pay wife child support. The husband now appeals to this Court. For the following reasons, we affirm in part, reverse in part, and remand for further proceedings.

An Obion County Circuit Court jury convicted the defendant, Anthony Shearer, of possession with intent to deliver one-half gram or more of cocaine, a Class B felony, and the trial court sentenced him to nine years in the Department of Correction. The defendant appeals, claiming that the evidence is insufficient and that his sentence is excessive. We affirm the trial court.

The Defendant, Jonathan Malcolm Malone, pled guilty to several offenses in two separate cases, the second of which was for an offense committed while he was out on bail for the first offenses. The trial court sentenced him to consecutive sentences, and awarded pretrial jail credit towards the sentences in the first case. The Defendant petitioned for the jail credit to be applied toward the sentence in his second case, and the trial court denied his request. The Defendant now appeals. Because we have concluded that the Tennessee Rules of Appellate Procedure do not provide the Defendant a Rule 3 Appeal as of Right, we dismiss the Defendant's appeal.

A Shelby County Criminal Court jury convicted the defendant, Clarence Mabon, of two counts of aggravated robbery, a Class B felony. The trial court merged the two offenses and sentenced him as a Range I, standard offender to eight years in the Department of Correction. On appeal, the defendant contends that the evidence is not sufficient to support his conviction and that a fatal variance exists between the indictment and the proof presented at trial. We affirm the judgment of the trial court.

The appellant, Ellis J. Burnett, was convicted by a jury in the Cannon County Circuit Court of aggravated arson. He received a sentence of twenty-three years incarceration in the Tennessee Department of Correction. On appeal, the appellant challenges the sufficiency of the evidence, the jury instructions, the prosecutor's closing argument, the trial court's evidentiary rulings, and alleges the ineffective assistance of counsel. Upon our review of the record and the parties' briefs, we affirm the judgment of the trial court.

The defendant, Charles Drake, stands convicted of aggravated assault with a deadly weapon and DUI. For the aggravated assault conviction, the trial court sentenced the defendant to four years, split confinement with supervised probation after service of six months' confinement. For the DUI conviction, the trial court imposed a sentence of 11 months and 29 days with a release eligibility at 75 percent. On appeal, the defendant asserts (1) that the evidence is insufficient to support his conviction of aggravated assault; (2) that the trial court committed reversible error in prohibiting the defense from presenting to the jury an animation of the automobile collision giving rise to the charges against the defendant; (3) that the trial court committed reversible error in admitting the results of a blood toxicology test; and (4) that his sentence is excessive. After thoroughly reviewing the record and applicable authorities, we find sufficient evidence to support the conviction, no error in the admission or exclusion of evidence at trial, and appropriate sentencing. We, therefore, affirm the convictions and sentences.

The Defendant, Patrick Lamont Barker, pled guilty to two counts of the sale of .5 grams or more of a schedule II controlled substance. The trial court sentenced him to eight years on each conviction and ordered that the sentences run concurrently and be served in community corrections. The Defendant violated the terms of his community corrections sentence, and the trial court ordered the Defendant to serve the remainder of his sentence in prison. The Defendant now appeals. Finding no error in the judgment of the trial court, we affirm the Defendant's sentence.

The appellant, Lucian Henry Marshall, III, appeals the order of the Sumner County Criminal Court, signed by appellant's counsel, agreeing to the disposition of money and his vehicle which had been seized pursuant to a forfeiture warrant. Alleging he was not properly informed of the procedure for recovering his seized assets, the appellant asks us to void the agreed order. We affirm the order of the trial court.

The defendant, Courtney Means, was convicted by a Shelby County Criminal Court jury of eight counts of aggravated robbery, a Class B felony, based on three separate incidents involving four victims. After merging the separate counts involving the same victim, the trial court sentenced the defendant as a Range I, standard offender to nine years for each of the remaining four convictions, with two of the sentences to be served consecutively, for an effective sentence of eighteen years in the Department of Correction. In this timely appeal as of right, the defendant challenges both the trial court’s application of enhancement factors to increase his sentences beyond the eight-year minimum for his range and its imposition of consecutive sentencing. Following our review, we affirm the judgments of the trial court.

The appellant, Joann White Pogue, pled guilty in the Marshall County Circuit Court to five counts of delivery of morphine and five counts of selling morphine, Class C felonies. The trial court merged each delivery conviction into a conviction for selling morphine and sentenced the appellant to an effective nine-year sentence in the Department of Correction (DOC). On appeal, the appellant claims the trial court improperly enhanced her sentences and improperly concluded that she was not entitled to the presumption that she was a favorable candidate for alternative sentencing. We agree that the trial court improperly applied enhancement factors and that the appellant was entitled to the presumption. Upon review of the record and the parties' briefs, we conclude that the trial court erred in its sentencing determinations and remand for resentencing.

This case is about a motion to set aside an order of dismissal. In 1997, the plaintiff sued the defendant for damages resulting from a 1996 car accident. On February 18, 2002, the trial court signed an order dismissing the lawsuit for failure to prosecute. That order was not filed by the court clerk until two years later, on February 18, 2004. During the two years between the time the dismissal order was signed until it was filed, both parties continued discovery and negotiation. After discovering the dismissal in 2004, the plaintiff asserted that neither party had received notice of the dismissal. The plaintiff then filed motions under Rules 59 and 60 of the Tennessee Rules of Civil Procedure, asking the trial court to set aside the order of dismissal. The motions were denied, and the plaintiffs appeal. We reverse, finding that under the circumstances of this case, the order of dismissal should have been set aside.

This workers’ compensation appeal has been referred to the Special Workers’ Compensation Appeals Panel of the Supreme Court in accordance with Tennessee Code Annotated § 50-6-225(e)(3) for hearing and reporting of findings of fact and conclusions of law.  The employee asserts he is permanently and totally disabled and appeals a finding of 80 percent permanent partial disability. We modify the award.

Petitioner, Edward Jerome Jones, filed a pro se petition for post-conviction relief, as amended after the appointment of counsel, arguing that he received ineffective assistance of counsel in connection with the negotiation and entry of Petitioner's best interest plea. Specifically, Petitioner alleges that his trial counsel failed to advise him of the evidence against him or allow him to listen to certain audio tapes, and that trial counsel failed to file a motion to dismiss the charges against Petitioner. After a review of the record in this matter, we affirm the trial court's dismissal of Petitioner's petition for post-conviction relief.

The Appellant, Robert Gene Mayfield, presents for review a certified question of law. See Tenn. R. Crim. P. 37(b)(2)(i). Mayfield pled guilty to felony possession of over .5 grams of cocaine with the intent to sell and felony possession of over one-half ounce of marijuana with the intent to sell. He was subsequently sentenced to an effective eight-year sentence to be served on probation. As a condition of his guilty plea, Mayfield explicitly reserved a certified question of law challenging the denial of his motion to suppress evidence found during the execution of a search warrant at his residence. Mayfield argues that the affidavit given in support of the warrant was insufficient to establish probable cause. After review of the record, we affirm the judgment of the Montgomery County Circuit Court denying the motion to suppress.

This appeal arises out of an action filed by Appellee to confirm an arbitration award. Appellants contest whether Appellee, as a foreign corporation without a certificate of authority, may avail itself of the Tennessee judicial system to enforce the arbitration award. The trial court determined that Appellee was exempted from the requirement of obtaining a certificate of authority and confirmed the arbitration award in favor of Appellee. Additionally, the trial court denied Appellee’s request for attorney’s fees incurred to collect the arbitration award. For the following reasons, we affirm.

On March 2, 2004, the Montgomery County Circuit Court, after conducting an evidentiary hearing on the claims presented, entered an order dismissing Richard L. Elliott's petition for post-conviction relief. On March 5, 2004, Elliott filed an "Amended Petition" alleging that because his post-conviction counsel failed to raise a requested claim for relief at the evidentiary hearing, he was entitled to a hearing on the omitted claim. Elliott's "Amended Petition" was summarily dismissed by the post-conviction court. After review, we affirm the trial court's dismissal of the amended petition for post-conviction relief.

Defendant was indicted for carjacking in count one; for theft of property over $10,000 but less than $60,000 in count two; for unlawful possession of a weapon in count three; for felony possession of an unlawful weapon in count four; for evading arrest while operating a motor vehicle in count five; for misdemeanor evading arrest in count six; for resisting arrest in count seven; for driving with a revoked license in count eight; and for criminal trespass in count nine. Prior to trial, the State dismissed counts three, eight and nine, and the remaining counts were renumbered accordingly. Following a jury trial, Defendant was found guilty of the lesser included offense of misdemeanor theft (as renumbered) in count one; guilty of Class C felony theft of property in count two; not guilty of possession of an unlawful weapon in count three; guilty of Class D felony evading arrest in count four; guilty of misdemeanor evading arrest in count five; and guilty of resisting arrest in count six. The trial court merged Defendant's conviction for misdemeanor theft in count one into his conviction for Class C felony theft of property in count two. The trial court sentenced Defendant as a Range II multiple offender to ten years for the theft conviction, eight years for the felony evading arrest conviction; eleven months, twenty-nine days for the misdemeanor evading arrest conviction; and eleven months, twenty-nine days for the resisting arrest conviction. The trial court ordered all of Defendant's sentences to be served consecutively for an effective sentence of 19 years, 10 months and fifty-eight days. On appeal, Defendant argues (1) that the evidence is insufficient to support his conviction for felony evading arrest in count four; (2) that the trial court erred in not merging Defendant's convictions for felony evading arrest and misdemeanor evading arrest in counts four and five; (3) that the trial court erred in determining the length of Defendant's sentences; and (4) that the trial court erred in ordering the sentences to be served consecutively. Defendant does not challenge the sufficiency of the evidence to support his felony theft or misdemeanor resisting arrest convictions. After a thorough review of the record, we modify Defendant's conviction for evading arrest from a Class D felony to a Class E felony, and impose a sentence of four years. We merge Defendant's misdemeanor evading arrest conviction with his Class E felony evading arrest conviction. We affirm Defendant's conviction and sentence for his Class C theft offense and his misdemeanor resisting arrest offense, and the trial court's imposition of consecutive sentencing, for an effective sentence, as modified, of fourteen years, eleven months and twenty-nine days.

The appellant, Bruce Warren Scarborough, was charged in the Knox County Criminal Court with four counts of aggravated rape. He filed a motion to suppress DNA evidence linking him to the crimes, and the trial court denied the motion. From the trial court's order, the appellant now brings this interlocutory appeal, arguing that the DNA evidence was obtained in violation of his right to be free from unreasonable searches and seizures as provided by the Fourth Amendment to the United States Constitution and Article I, Section 7 of the Tennessee Constitution. Upon review of the record and the parties' briefs, we affirm the judgment of the trial court.

I must respectfully dissent from the majority’s holding that there should be no increase in alimony upon the younger child reaching the age of majority. As the majority states, the various provisions of the contract must be construed together, and we should seek to ascertain the intention of the parties based upon the usual, natural, and ordinary meaning of the language employed. Reading the provisions of the MDA, it is my interpretation that the intention of the agreement is clearly set out that “as each child reaches 18 years of age or graduates from high school or should have done so, whichever is the last to occur, the defendant will have to begin an additional alimony in futuro payment as herein before calculated.” (Emphasis added). This provision, coupled with the express provision of the MDA stating “furthermore, this obligation or these payments are to be made regardless of who the child is living with or who may have custody of the children when the child reaches or should have reached 18 years of age or graduates from high school,” indicates to this member of the Court that the obligation for additional alimony is not governed by whether Mr. Buettner would have any child support obligation payable but is governed by what he would have an obligation for in the way of child support based upon the guidelines.

This is a custody dispute. The trial court granted the father's petition to modify custody and changed primary custody of the parties' two minor children from the mother to the father, based on findings of a material change of circumstances and the best interests of the children. On appeal, we reverse the trial court's modification of custody finding there has not been a material change of circumstances justifying a change of custody and that the children's best interests are served by remaining with Mother.

The trial court increased Husband’s alimony obligation pursuant to the parties’MDA. It also denied Husband’s petition to modify alimony and increased Wife’s child support obligation retroactive to June 1, 2003. We affirm in part, reverse in part, and remand.

A Davidson County jury convicted the Defendant, Larita Lyons, of robbery, and the trial court sentenced her to serve five years in the workhouse. On appeal, the Defendant contends that the evidence is insufficient to sustain her conviction. Finding no reversible error, we affirm the judgment of the trial court.

This workers' compensation appeal has been referred to the Special Workers' Compensation Appeals Panel in accordance with Tennessee Code Annotated section 50-6-225(e)(3) for hearing and reporting to the Supreme Court of findings of fact and conclusions of law. In this appeal, the employer asserts that the trial court erred in awarding to the employee a 30% vocational disability to her upper left extremity and 70% vocational disability to her upper right extremity as a result of her employment with Trane Unitary Products. We conclude that the evidence presented supports the findings of the chancellor and, in accordance with Tennessee Code Annotated §50-6-225(e)(2), affirm the judgment of the trial court.

The state has appealed the Knox County Criminal Court's suppression of statements made to police by the defendant, Thomas Dee Huskey, and of items found and seized from his home. The state contends that (1) the trial court erred as a matter of law in suppressing the statements and (2) the trial court erred in suppressing the items found at the home (a) because the police arrested the defendant in good faith reliance upon a capias which subsequently was declared void and (b) because the defendant's father consented to a search of the defendant's room. The defendant asserts that if the state's appeal is successful, then he contends that the trial court erred in prior rulings denying suppression of his statements and the items seized from his home on other myriad grounds raised by the defendant. We affirm the trial court.

Plaintiff National Bank of Commerce filed a declaratory judgment action seeking a declaration that its agreement with Defendant Universal Transaction Consultants, Inc. was null and void for Defendant’s failure to perform a condition precedent. Defendant counter-claimed for breach of contract and tortious interference with contract. The trial court determined that Universal Transaction Consultants had failed to prove damages and dismissed the claims of both parties. We affirm.