APPELLATE COURT OPINIONS

The Defendant, Randall Watson, pled guilty to second degree murder. He subsequently filed a petition for habeas corpus relief. After considering the Defendant’s petition as presented and also as a petition for post-conviction relief, the trial court dismissed the Defendant’s pleading. This appeal followed. We affirm the trial court’s judgment.

This case involves the construction of a will. Lloyd A. Button, a widower (“the Deceased”), executed his last will and testament on April 1, 2002, while hospitalized at Parkwest Hospital in Knoxville. Under the heading “Conditional Bequest to Patricia Albright,” the Deceased left Ms. Albright his Loudon County residence, one of his automobiles, and “all . . . tangible personal property,” except the property mentioned in a specific bequest in the will. The Deceased died one week later, on April 8, 2002, having never left the hospital.1 Ms. Albright sued the personal representatives of the Deceased’s estate (“the Personal Representatives”) seeking to establish her entitlement to the property left to her in the will. On cross motions for summary judgment, the trial court granted summary judgment to Ms. Albright. The Personal Representatives, who are the Deceased’s son2 and Shirley Reno, a residuary beneficiary under the will, appeal. We reverse and dismiss Ms. Albright’s complaint.
 

Following a bench trial, the defendant, Harold David Haney, Sr., was convicted of violation of a motor vehicle habitual offender ("MVHO") order and DUI, second offense. He was sentenced as a Range I, standard offender to two years for the MVHO violation and eleven months, twenty-nine days for the DUI conviction, to be served concurrently in the Department of Correction. In addition, he was fined a total of $1100 and his driver's license was revoked for two years. On appeal, he argues that the State failed to establish venue. After review, we affirm the judgments of the trial court.

While I concur with the majority to reverse the decision of the Trial Court and to dismiss Ms. Albright’s Complaint, I write separately to express my disagreement with the majority’s decision to take judicial notice of certain facts. I agree completely with the majority’s discussion of what the law is as to summary judgment, interpretation of a will, conditional bequests, and judicial notice. However, I cannot agree with the majority that this Court can take judicial notice that e]ssentially all of the services recited as conditions in the Deceased’s will are services that would be rendered by a hospital such as Parkwest for individuals admitted to the hospital on an inpatient bases.” While I suspect that such is true, I cannot say that such a “fact” is “(1) generally known within the territorial jurisdiction of the trial court or (2) capable of accurate and ready determination by resort to sources whose accuracy cannot reasonably be questioned.” Tenn. R. Evid. 201(b). This being so, I cannot agree that this is a “fact” which is appropriate for judicial notice.

The petitioner, Randall Mills, appeals the denial of post-conviction relief. The single issue presented for review is whether the petitioner was denied the effective assistance of counsel at trial. The judgment is affirmed.

The defendant, Julius E. Smith, entered pleas of guilty to two counts of driving under the influence, third offense, and four counts of vehicular assault. As to the first driving under the influence offense, the trial court imposed a sentence of eleven months and twenty-nine days, to be suspended to probation after the service of 120 days of confinement. The second was merged into the convictions for vehicular assault. The trial court imposed consecutive sentences of three years for each vehicular assault conviction. The sentences were ordered to be served consecutively to the sentence for driving under the influence, third offense. The effective sentence is, therefore, twelve years, eleven months, and twenty-nine days. In this appeal, the defendant asserts that the effective sentence for the vehicular assault convictions is excessive. It is our judgment that the misapplication of an enhancement factor to three of the four vehicular assault convictions warrants a reduction to two years for each of those crimes. Otherwise, the judgments of the trial court, including the imposition of consecutive terms, are affirmed.

Gary L. West and Michell B. Richardson ("Plaintiffs") sued East Tennessee Pioneer Oil Co., d/b/a Exxon Convenience Store ("Defendant") asserting claims based on negligence, negligent entrustment, and negligence per se. Plaintiffs allege that Brian Lee Tarver ("Tarver") was visibly intoxicated when he stopped at Defendant's store to purchase beer and gasoline. Pursuant to company policy, Defendant's employees refused to sell Tarver beer because he was intoxicated, but did sell him $3.00 of gasoline. One or more of Defendant's employee then assisted Tarver with operating the gasoline pump. Shortly after leaving Defendant's store, Tarver was involved in an automobile accident resulting in serious personal injuries to Plaintiffs. Plaintiffs offered expert proof that had Tarver not obtained the $3.00 worth of additional gasoline, he would have run out of gas before reaching the accident site. The Trial Court granted Defendant's motion for summary judgment on all three of Plaintiffs' claims. We affirm the grant of summary judgment on Plaintiffs' claims for negligent entrustment and negligence per se. We reverse the grant of summary judgment on Plaintiffs' negligence claim.

The defendant, Terry Lynn Byington, was convicted of DUI, fourth offense, and sentenced as a Range II, multiple offender to three years in the Department of Correction, with 150 days to be served day-for-day. On appeal, the defendant argues that (1) the evidence was insufficient to support his conviction; (2) his sentence is excessive; (3) the trial court erred in allowing the State to introduce evidence of a prior conviction which was more than ten years old; and (4) the trial judge erred in not recusing herself. After review, we affirm the judgment of the trial court.

The Trial Court awarded plaintiffs commission for lease of real estate pursuant to Agreement between the parties. Defendants appealed - we affirm.

Following a jury trial, the defendant, Tammy Kincannon, was convicted of aggravated sexual battery, a Class B felony, and sentenced as a violent offender to eight years in the Tennessee Department of Correction. On appeal, she argues that the evidence was insufficient to support her conviction and that the trial court erred in not requiring the State to make an election of the offenses and in not instructing the jury as to the lesser-included offenses of aggravated sexual battery. Following our review, we agree that the State failed to make an election and reverse the judgment of the trial court.

The petitioner, Tony Jelks, pled guilty in the Haywood County Circuit Court to aggravated burglary and aggravated assault. He received a total effective sentence of ten years incarceration in the Tennessee Department of Correction. Subsequently, the petitioner filed a petition for postconviction relief, alleging that he received the ineffective assistance of counsel and that his pleas were not knowingly and voluntarily entered. The post-conviction court denied the petition, and the petitioner timely appealed. Upon review of the record and the parties’ briefs, we affirm the judgment of the post-conviction court.

The defendant, Joe W. France, pled guilty to the sale of cocaine in excess of .5 grams. A Range II, 12-year sentence was imposed but the defendant was granted probation supervised under a Community Corrections program after a term in jail. After the issuance of a revocation warrant, the defendant agreed to an increase of the sentence to 20 years in exchange for continued probation supervised by the Community Corrections program. Later, the defendant violated the terms of the agreement and was ordered to serve the 20-year sentence. In this appeal, the defendant complains that even though he entered into the sentence modification by agreement, he was entitled to a hearing before the sentence was increased. The judgment of the trial court is reversed. Because both the original plea agreement and the amended agreement provided for illegal sentences, the conviction must be set aside and the cause remanded for trial.

Indicted for aggravated child abuse, the defendant, Michael Wayne Poe, was convicted by a jury of child abuse, a Class D felony. The trial court sentenced the defendant to four years, with all but 11 months, 29 days suspended. In this appeal of right, the defendant argues that the evidence was insufficient, that the sentence was excessive, and that the trial court erred by denying full probation. The sentence is modified to three years; otherwise, the judgment of the trial court  affirmed.

Plaintiff sued defendant nursing home located in Carroll County for damages for the injuries and death of plaintiff’s decedent while a patient in the nursing home. Defendant-nursing home, in its answer, alleged comparative fault on the part of Jackson-Madison County General Hospital, a governmental entity. Plaintiff amended her complaint to allege fault on the part of the hospital. The hospital then filed a motion to dismiss for improper venue which was denied by the trial court. The case is before this Court on a Rule 9 Interlocutory Appeal. We reverse and remand.
 

The defendant, Robin McNeal Vanhoose, appeals the trial court’s dismissal of his motion to correct illegal sentence. The State filed a motion to dismiss the appeal or, in the alternative, to affirm the dismissal by the trial court pursuant to Rule 20, Rules of the Tennessee Court of Criminal Appeals. Upon reviewing the record, the defendant’s brief, and the State’s motion and brief, we affirm the trial court’s dismissal of the defendant’s motion to correct illegal sentence.

The petitioner, Thomas Eugene Hargis, appeals the trial court's dismissal of his petition for writ of habeas corpus. 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. The petition presents no cognizable claim for habeas corpus relief. Accordingly, the State's motion is granted and the judgment of the trial court is affirmed.

We granted permission to appeal in this case to determine whether the trial court erred in considering the results of the defendant sex offender's polygraph examination when denying the defendant's request for probation. The polygraph examination was administered as part of the risk assessment report that is mandated by statute for all sex offenders seeking probation. Because polygraph examinations are inherently unreliable, we hold that trial courts may not consider polygraph examination results or any portion of a risk assessment report that relies upon polygraph examination results when imposing sentences. However, even excluding the polygraph examination results, the record in this case supports the denial of probation. Accordingly, the judgment of the Court of Criminal Appeals is affirmed in part and modified in part.

The appellant, Marty William Thomas, was convicted by a jury in the Hamilton County Criminal Court of four counts of aggravated rape and one count of aggravated burglary. Following a hearing, the trial court sentenced the appellant to an effective sentence of fifty-four years incarceration in the Tennessee Department of Correction. On appeal, the appellant claims that the trial court erred by (1) admitting into evidence three photographs of the appellant taken on different dates; (2) replaying only the direct testimony of the victim for the jury during deliberation; and (3) denying the appellant's motion for a mistrial on the ground that the jury was prejudiced by media reports. Upon review of the record and the parties' briefs, we affirm the judgments of the trial court.

The defendant, Joey Dewayne Thompson, appeals as of right from his convictions by a jury in the Knox County Criminal Court for second degree murder, a Class A felony, and attempted second degree murder, a Class B felony. The trial court sentenced him to twenty-five years for the second degree murder and twelve years for the attempted second degree murder, to be served consecutively in the Department of Correction. The defendant contends that: (1) the evidence is insufficient to support the convictions; (2) the trial court erred by allowing the state to amend the indictment to include a count for first degree felony murder; (3) the trial court erred by admitting a 9-1-1 tape; (4) the trial court erred by allowing reference to the defendant's nickname, "Joe Thug"; (5) the trial court erred by allowing the state to cross-examine the defendant on a robbery charge that had been dismissed; (6) prosecutorial misconduct requires a new trial; (7) the trial court erred in its instructions to the jury regarding "knowing"; and (8) the trial court erred in giving him excessive and consecutive sentences. We conclude that the trial court committed reversible error in its instructions to the jury regarding "knowing." Accordingly, we reverse the judgments of the trial court and remand the case for a new trial.

The Petitioner, Christopher L. Dethrow, appeals the trial court's denial of his petition for postconviction relief. 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. A review of the record supports the State’s position. Accordingly, the State's motion is granted and the judgment of the trial court is affirmed.

The petitioner, Bryan Pearson, appeals the trial court's dismissal of his petition for writ of habeas corpus. The state has filed a motion requesting that this court affirm the trial court's denial of relief pursuant to Rule 20, Tenn. Ct. Crim. App. R. The petitioner has not established that the challenged judgment is void or that his sentence has expired. Accordingly, the motion for summary affirmance is granted and the judgment of the trial court is affirmed.

Plaintiffs, police officers along with a number of others, were promoted to sergeant after passing a promotional test. Subsequently, the test was declared invalid by the federal court and the city announced its intention to restore the affected officers to their previous rank pending the administration of a new promotional test. Plaintiffs, along with others, filed suit in chancery court to enjoin this action on the part of the city. The chancery court issued a temporary injunction, enjoining the city from removing plaintiffs from their rank of sergeant or from reducing their pay pending final judgment. The chancellor clarified the injunction by order which provided that the injunction would be in effect only “until such time as promotions are made from the 2001 sergeant promotional process.” Of the fifty-four plaintiffs in the chancery court taking the new promotional test, the seven plaintiffs-appellants did not rank high enough for promotion. On motion of the city, the chancery court dissolved the preliminary injunction previously issued and, by consent order, allowed the plaintiffs full credit of time served as sergeant as a result of the first promotional process. Plaintiffs have appealed. We affirm.

This case involves payment of an insurance claim demanded by Appellee from Appellant after Appellee’s belongings were destroyed in a fire. Appellant refused payment on the basis that Appellee failed to notify Appellant of an address change. After a hearing, the trial court awarded Appellee $32,000, representing her claim under the insurance policy, and $8,000 as a 25% bad faith penalty. For the following reasons, we affirm in part and vacate the award representing a bad faith penalty.
 

The defendant, Anthony J. Ramey, appeals his jury conviction of aggravated sexual battery, a lesser-included offense of rape of a child with which he was originally charged. He claims (1) that the evidence presented at trial was insufficient to find him guilty of aggravated sexual battery; (2) that the trial court should have granted his motion for judgment of acquittal; (3) that the length of his sentence is excessive; (4) that the jury should have been instructed on the lesser-included offense of child abuse; and (5) that Code section 40-18-110(c), which requires a written request for an instruction on a lesser-included offense, is unconstitutional. Upon review, we are unpersuaded by the defendant's arguments and, accordingly, affirm his conviction and sentence.