APPELLATE COURT OPINIONS

The petitioner was indicted on three counts of rape of a child, a Class A felony, and pled guilty to one count of incest, a Class C felony, in exchange for an eight-year sentence as a Range II, multiple offender. Following his conviction, he filed a timely motion for reduction of sentence pursuant to Rule 35 of the Tennessee Rules of Criminal Procedure. After conducting a hearing, the trial court denied the motion, and the petitioner appealed to this court. We agree that the petitioner should be allowed to withdraw his plea of guilty, although for a different reason than he argues. Incest, to which he pled guilty, is not a lesser-included offense of rape of a child, and the record on appeal does not reflect that the indictment was amended to charge incest. Accordingly, we vacate the judgment of conviction and remand this matter to the trial court.

I concur in the majority opinion. I write separately to further address the majority’s treatment of the Illinois farm. I agree with the majority that the use of the parties’ joint accounts – to which both parties contributed – to pay “real estate taxes, insurance premiums, repairs and maintenance on the farm” during the parties’ 19-year marriage is clear evidence that “each party substantially contributed to [the Illinois farm’s] preservation and appreciation.” See Tenn. Code Ann. § 36-4- 121(b)(1)(B). This means that the entire “increase in value [of the Illinois farm] during the marriage,” see id., is marital property. Obviously this does not end the inquiry, because the trial court on remand must decide how to make an equitable division of the marital property portion of the present value of the farm in the context of an overall division of the total marital property estate. See Tenn. Code Ann. § 36-4-121(c)(1)-(11).

Defendants Andrew Thomas and Anthony Bond appeal as of right their convictions for the first degree felony murder of Loomis Fargo employee, James Day, during the perpetration of a robbery. Following a separate sentencing hearing, the jury found, as to each defendant, that the proof supported one aggravating circumstance beyond a reasonable doubt, that is, the defendant had been previously convicted of one or more violent felonies. See Tenn. Code Ann. § 39-13-204(i)(2). With respect to Defendant Thomas, the jury further determined that the aggravating circumstance outweighed any mitigating circumstances beyond a reasonable doubt, and sentenced Defendant Thomas to death. As to Defendant Bond, the jury found that the aggravating circumstance did not outweigh the mitigating circumstances and imposed a sentence of life without the possibility of parole. The trial court approved the sentencing verdicts. In this appeal as of right, Defendant Thomas raises the following issues for this Court’s review: (1) the sufficiency of the evidence; (2) whether the trial court erred by denying various pre-trial motions; (3) whether the trial court erred by failing to continue the case after the events of September 11, 2001; (4) whether the trial court erred by excusing prospective juror Pannell for cause; (5) whether the trial court erred by admitting photographs of the victim; (6) whether the trial court erred by admitting items from Defendant’s prior federal trial arising out of the robbery; (7) whether the trial court erred in restricting the Defendant’s impeachment of Angela Jackson; (8) whether the trial court erred in failing to voir dire a prospective witness regarding her relationship with defense witness Russell Carpenter; (9) whether the trial court erred in sustaining an objection to the testimony of John Hibbler; (10) whether the trial court erred in permitting testimony regarding fingerprints despite stipulation; (11) whether the trial court erred in the admission of expert testimony; (12) whether the trial court erred by failing to charge lesser-included offenses of felony murder; (13) whether the trial court erred by failing to charge the jury with an accomplice instruction; (14) whether it was plain error for the State to refer to Thomas and Bond as “Greed and Evil” in opening statement and closing argument; (15) whether the trial court erred in permitting the State to argue that the jury had a job to find the Defendants guilty; (16) whether the trial court erred by not instructing on specific mitigating factors; (17) whether the trial court erred by permitting the State to cross-examine the Defendant’s mother regarding disciplinary actions taken against the Defendant while in prison; (18) whether the verdict 2 of the jury was against the weight of the evidence; (19) whether the indictment failed to charge a capital offense; (20) whether the death penalty violates international treaties ratified by the United States; (21) whether the Tennessee death penalty scheme is unconstitutional; and (22) whether the sentence is proportionate. Defendant Bond raises the following issues: (1) whether it was error for the trial judge to fail to recuse himself for failure to follow Local Rule 4.01; (2) whether the trial court erred by overruling Bond’s objection to the testimony of Dr. Smith; (3) whether the trial court erred by declaring Dr. Smith an expert in firearms identification; (4) whether the trial court erred by permitting the prosecution to engage in improper argument; (5) whether the trial court erred by permitting the prosecution to elicit testimony from Angela Jackson regarding her attendance at trial; and (6) whether the trial court erred by failing to instruct the jury as to lesser-included offenses of felony murder. After review of the record and the applicable law, we find no errors of law requiring reversal as to Defendant Thomas. Accordingly, we affirm the jury’s verdict finding Defendant Thomas guilty of first degree murder. Additionally, we affirm the jury’s imposition of the sentence of death as to Defendant Thomas. However, with respect to Defendant Bond, we are unable to conclude that the failure of the trial court to instruct the jury as to the lesser-included offenses of felony murder was harmless beyond a reasonable doubt. Accordingly, we vacate Defendant Bond’s conviction for felony murder and accompanying sentence of life without the possibility of parole. With respect to Defendant Bond, this matter is remanded to the trial court for a new trial.

The plaintiff filed suit for repayment of $25,000 which he purportedly loaned to the defendant. The defendant contended that the money was not a loan, but was placed with him for a specific investment. Since the investment ultimately failed, the defendant claimed that he did not owe anything to the plaintiff. The trial court noted that the documents evidencing the transactions at issue were “replete with ambiguities,” but found that they were nonetheless sufficient to establish an enforceable loan contract. The court accordingly rendered a plaintiff’s judgment for $25,000 plus interest. We reverse.

The Appellant, Ricky Hill Krantz, appeals the dismissal of his petition for post-conviction relief by the Davidson County Criminal Court. Krantz is currently incarcerated as a result of his jury convictions for first degree felony murder and aggravated assault. On appeal, Krantz raises the single issue of whether he received ineffective assistance of counsel at trial. After review of the issue, the judgment of the post-conviction court is affirmed.

On March 23, 1998, The petitioner pled guilty to six (6) counts of attempt to commit incest and six (6) counts of attempt to commit rape. He was sentenced to six (6) years for each count, all to be served concurrently to each other. On March 20, 2002, he filed a Petition for Post-Conviction Relief. He based his petition on two grounds of relief, attorney misrepresentation and DNA analysis under Tennessee Code Annotated section 40-30-403. The trial court dismissed the petition as time-barred on the attorney misrepresentation issue and as not meeting the statutory requirements on the DNA issue. The petitioner appeals the trial court's decision. We affirm the trial court.

This case involves Plaintiff’s claim that Defendant committed legal malpractice while representing
Plaintiff in certain bankruptcy proceedings. The Defendant filed a motion for summary judgment,
alleging that the applicable statute of limitations bars the malpractice action, as does the doctrine of res judicata. The trial court granted Defendant’s motion, and Plaintiff filed the instant appeal. For
the following reasons, we affirm the ruling of the lower court.

I agree with the majority opinion in all respects with one exception. The majority opinion concludes the failure of the trial court to charge the lesser-included offense of facilitation of felony murder as to Defendant Bond was not harmless error. I respectfully disagree with this conclusion.

The Defendant, Donald W. Brymer, Jr., appeals from the Williamson County Circuit Court's revocation of his probation that he received for his guilty plea to one count of statutory rape. The Defendant contends that the trial court abused its discretion by revoking his probation and sentencing him to confinement. We affirm the trial court's judgment.

I agree on both counts. The “loan agreements” are poorly drafted, and they do not reflect
sound business judgment on Mr. Caldwell’s part. So what? When competent parties have bargained in good faith and have entered into a written contract, it is not the courts’ prerogative to rewrite the contract or to relieve either party from the burdensome effects of their agreement. Vargo v. Lincoln Brass Works, Inc., 115 S.W.3d 487, 492 (Tenn. Ct. App. 2003). Whether considered by themselves or in conjunction with the parties’ separate “consulting agreements,” the fact of the matter is that Mr. Caldwell’s “loan agreements” are precisely that – loan agreements. I would affirm the trial court.

The Petitioner, Roger Lynn Perry, appeals the trial court's denial of his petition for habeas corpus 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. Because Petitioner has failed to allege a ground for relief which would render the judgment void, we grant the State's motion and affirm the judgment of the lower court.

Defendant, Thomas Marion Hardin, entered "open" pleas of guilty to two counts of sale of cocaine in an amount of 0.5 grams or more, and one count of conspiracy to sell cocaine in an amount of 0.5 grams or more. Following a sentencing hearing, the trial court sentenced Defendant to serve ten years as a Range I standard offender for each Class B felony conviction for sale of cocaine, and to four years to serve as a Range I standard offender to the Class C felony conviction for conspiracy. The sentences for the sale of cocaine convictions were ordered to be served concurrently with each other, and the conspiracy charge was ordered to be served consecutively to the convictions for sale of cocaine. Therefore, the effective sentence was fourteen years of confinement. In his sole issue on appeal, Defendant argues that the trial court erred by not ordering his sentence to be served in the Community Corrections Program, rather than by incarceration. After a review of the briefs of the parties and the entire record, we affirm the judgments of the trial court.

This case arose out of a labor dispute. In October 1999, the defendant union began a labor strike at the plaintiff trucking company's Nashville facility. The company filed a petition in the lower court seeking to enjoin the union from engaging in violence and intimidation in connection with the strike. The company later amended its complaint to include a claim against the union for intentional interference with business relations. Between October 1999 and January 2000, the trial court entered five injunctions against the union, each more restrictive than the one before, enjoining the union from engaging in the alleged unlawful violence and intimidation. In August 2000, the trial court issued a show cause order, citing 128 alleged violations of the injunctions, requiring the union to show cause why it should not be held in civil contempt. In March 2002, the trial court determined that the company's petition for civil contempt was moot because, by that time, the contemptuous conduct had ceased. In August 2002, the trial court dismissed the company's claim for intentional interference with business relations for failure to state a claim. The plaintiff trucking company now appeals. We reverse the dismissal of the civil contempt petition, finding that the company may seek damages caused by conduct in violation of the injunctions, and affirm the dismissal of the intentional interference claim.

The Appellant, Carlos Salvador Angel, Jr., was convicted of aggravated sexual battery by a Davidson County jury and sentenced to ten years in the Department of Correction. On appeal, Angel argues that: (1) the admission of testimony by his former girlfriend, who was not the victim in this case, was irrelevant and unduly prejudicial and (2) the ten-year sentence imposed was excessive. After review of the record, the judgment of conviction and sentence are affirmed.

On September 6, 2002, Melody Lynn Michael ("Wife") filed suit against her husband, John William Michael, Jr. ("Husband"), seeking a divorce, custody of the couple's minor child, and ancillary relief. The complaint reflects that Husband is an active-duty member of the United States Air Force. Service of process on Husband was attempted through the Secretary of State "by certified or registered mail" directed to Husband at his acknowledged address in Waldorf, Maryland. The Secretary of State notified the clerk of the trial court that his correspondence to Husband was returned by the United States Postal Service with the notation that it was "refused." When there was no response filed by Husband to Wife's complaint, Wife, on November 25, 2002, filed a motion for default judgment. The motion was heard and granted on January 6, 2003, and subsequently memorialized in a default judgment and judgment of divorce entered January 24, 2003. A motion to set aside the default judgment and judgment of divorce was filed by Husband on February 14, 2003. Following a hearing on April 7, 2003, the trial court entered an order on May 6, 2003, denying the motion. Husband appeals. We affirm.

A Montgomery County jury convicted the Appellant, David G. Housler, of four counts of felony murder. Housler's convictions stem from the robbery of a Clarksville Taco Bell and the execution-style murders of four of its employees. Following a sentencing hearing, the trial court imposed four consecutive life sentences. Housler appeals, presenting the following issues for our review: (1) Whether his confessions were properly admitted into evidence when the State and the trial court knew the confessions were false and unreliable; (2) Whether the State committed prosecutorial misconduct by using the recanted testimony of Robert Eastland, Robert Dawson, and Michael Miller and by failing to inform defense counsel or the trial court that Jeremy Thompson had recanted his statement; (3) Whether he is entitled to a new trial based upon the newly recanted testimony of Larry Underhill; (4) Whether the trial court erred in denying a new trial when a juror fell asleep during the trial; (5) Whether the Mathews time-line proves his innocence; (6) Whether the State prosecuted Housler and Courtney Mathews under inconsistent theories; and (7) Whether consecutive sentencing was proper. After review, we find no error of law requiring reversal. Accordingly, we affirm Housler's convictions and the imposition of four consecutive life sentences.

The defendant pled guilty to possession of marijuana with intent to sell or deliver, a Class E felony, and simple possession of cocaine, a Class A misdemeanor. The Rutherford County trial court imposed an effective one-year sentence with ninety days incarceration followed by probation. On appeal, the defendant raises two issues: (1) whether the trial court erred in denying judicial diversion; and (2) whether the trial court erred in denying full probation. We affirm the judgments of the trial court.

Tanikia Yolanda Boone (“the tenant”) sued Houston Gibson, Jr. (“the landlord”), seeking damages and other relief for wrongful eviction and for the wrongful withholding of her personal possessions, pursuant to the Uniform Residential Landlord and Tenant Act (“the URLTA”), Tenn. Code Ann. § 66-28-101, et seq. (1993 & Supp. 2003). The tenant attempted service on the landlord by having the landlord’s process served on Donna Gibson, the landlord’s former wife. After the landlord failed to respond to the complaint, the tenant filed a motion for default judgment. The trial court granted the motion and awarded the tenant damages of $20,000 and attorney’s fees and costs totaling $3,500. Approximately two years later, in response to the tenant’s efforts to execute on her judgment, the landlord filed a motion to dismiss the default judgment on the ground that the trial court lacked personal jurisdiction over him. Following a hearing on the landlord’s motion, the trial court held that the landlord’s former wife had authority as his agent to accept service of process on his behalf. We affirm.
 

The Homeowners' Association of a residential subdivision organized as a planned unit development assessed maintenance fees against the owner of twenty-two unimproved lots in the subdivision. The owner of those lots filed a suit to obtain a declaration that it was not liable for those fees, alleging that the developer had waived all assessments on vacant lots. The trial court found that the Association was entitled to rescind the waiver, granted summary judgment to the Association, and ordered the lot owners to pay the fees, as well as significant late charges and attorney fees, for a total of over $45,000. We reverse the judgment because there is no evidence in the record that the Board of Directors of the Homeowners' Association ever officially rescinded the waiver, and there is thus a material question of fact as to whether its assessments were valid.

Pursuant to Rule 9, Tennessee Rules of Appellate Procedure, both the defendant and the State were granted appeals from an interlocutory order of the trial court granting in part, and denying in part, Defendant's motion to exclude Rule 404(b), Tennessee Rules of Evidence, testimony. After a careful review of the evidence, we affirm in part and reverse in part the trial court's order.

The defendant was convicted of DUI, second offense. He contends that 1) the evidence was insufficient, 2) the trial court erred in instructing the jury on reasonable doubt, 3) the trial court erred in instructing the jury as to the inference from refusal to submit to a chemical test, and 4) the trial court erred in failing to grant the motion to strike the enhancement count. The judgment of the trial court is affirmed.

I concur in the results reached in the majority opinion. However, I question whether a “reasonable certainty” equates to a “moral certainty” relative to the definition of reasonable doubt in Tennessee. Also, I believe that trial courts in this state should not be using varying definitions of reasonable doubt.

This is an appeal by the petitioner from the denial of his post-conviction relief petition. The petitioner was originally convicted of especially aggravated robbery and sentenced to 60 years at 100% service. After careful review, we affirm the denial of post-conviction relief.