APPELLATE COURT OPINIONS

The defendant pled guilty in the Blount County Circuit Court to assault, a Class A misdemeanor, and was sentenced to eleven months and twenty-nine days. The trial court ordered a split confinement with thirty days in jail, and the balance to be served on probation. In this appeal as of right, the defendant argues that the trial court erred in denying her full probation. After careful review, we affirm the defendant's sentence but remand the matter to the trial court for entry of a corrected judgment.

The defendant, Timothy D. Grove, appeals his conviction for aggravated assault and ten-year Range II sentence in the Department of Correction. Specifically, the defendant contends evidence presented against him at trial was insufficient to support his conviction, and his sentence was excessive. After a thorough review of the record, we affirm the judgment of the trial court.

A Bedford County jury convicted the defendant of Class D felony theft over $1,000, and the trial court sentenced him to 12 years incarceration as a career offender. In this appeal, the defendant alleges the evidence is insufficient to sustain his conviction. We affirm the judgment of the trial court.

Eric Jonathan Benefield appeals the Hamilton County Criminal Court's imposition of consecutive sentencing. In the proceedings below, the trial court incorrectly determined that because the defendant was on probation at the time of his offenses, consecutive sentencing was required by Tennessee Rule of Criminal Procedure 32(c)(3). However, consecutive sentencing was merely permissible, not mandatory. We therefore reverse the trial court's consecutive sentencing determination and remand for further consideration under the applicable law.

This is a nuisance case. The plaintiff landowners sued the developer of a subdivision adjacent to their property for digging a drainage ditch that caused frequent flooding. The defendant developer filed counter-claims, including an allegation that the plaintiffs and the previous owners of his property had conspired to breach the agreement to sell the property to the developer. The developer also argued that the city had taken steps to alleviate the flooding. The trial court found that the developer had created a permanent nuisance by changing the natural flow of water across his property, and dismissed the developer's counter-claims. On appeal, we affirm the trial court's finding of a nuisance, but conclude that the circumstances created both a temporary and a permanent nuisance, and remand for recalculation of damages based on this holding.

The defendant, Ricky D. Gardner, was convicted of one count of vandalism over $500; one count of vandalism over $1,000; three counts of burglary; one count of burglary of a motor vehicle; three counts of theft over $1,000; two counts of theft under $500; and one count of theft over $500. The trial court imposed an effective six-year sentence to be served in a community corrections program.  Later, the trial court revoked the alternative sentence and ordered the defendant to serve the balance of his sentence in the Department of Correction. In this appeal of right, the defendant argues that the trial court erred by ordering revocation. The judgments are affirmed.

The defendant, Henry B. Bason, appeals from his conviction for disorderly conduct, contesting the sufficiency of the evidence. We affirm the judgment of conviction.

The defendant, Anthony S. Carie, appeals his bench trial convictions for burglary of a building other than a habitation and theft over $1,000. This case presents three issues for our determination: (1) whether the evidence was sufficient to support the defendant's convictions; (2) whether the trial court erred in not examining the defendant in open court regarding his right to testify; and (3) whether the defendant received effective assistance of counsel at trial. For the reasons set forth below, we conclude there is no reversible error; therefore, we affirm the judgment of the trial court.

The Defendant, Gerald L. Powers, was convicted by a jury of first degree felony murder in the perpetration of a robbery and of aggravated robbery. The jury sentenced the Defendant to death for the murder on the basis of three aggravating circumstances: that the Defendant was previously convicted of one or more violent felonies; that the Defendant committed the murder to avoid his arrest and/or prosecution; and that the Defendant committed the murder while committing a kidnapping. The trial court subsequently sentenced the Defendant as a Range III persistent offender to thirty years incarceration for the aggravated robbery, to be served consecutive to the death sentence. In this appeal as of right, the Defendant challenges his convictions, raising the following issues: (1) whether the evidence identifying him as the perpetrator is sufficient; (2) whether a variance between the indictment and the proof at trial is material and prejudicial; (3) whether the trial court had jurisdiction over the crimes; (4) whether the Defendant's wife's testimony should have been suppressed pursuant to the marital communications privilege; (5) whether the trial court erred in refusing to admit evidence in support of a third-party defense; (6) whether the trial court erred in admitting a lay witness's testimony identifying photographs as being of the Defendant; and (7) whether the trial court erred in admitting a deposition taken in Mississippi by a Tennessee notary public. The Defendant challenges the imposition of the death sentence on the following grounds: (1) whether the trial court erred in admitting the facts underlying the Defendant's prior felonies; (2) whether the Defendant's prior felonies were violent within the meaning of the statutory aggravating circumstance; (3) whether the evidence is sufficient to support the jury's finding that the Defendant committed the murder to avoid his arrest and/or prosecution; (4) whether the trial court erred in refusing to admit evidence of the victim's bad character; and (5) whether Tennessee's death penalty scheme is constitutional. Finally, the Defendant contends that the trial court should have sentenced him as a Range II offender for the aggravated robbery. Upon our review of the record and relevant legal authority, we find no reversible error in the Defendant's convictions or in the imposition of the death sentence. We reduce the Defendant's sentence for the aggravated robbery to twenty years. In all other respects, we affirm the judgment of the trial court.

In this interlocutory appeal, Robert L. Easterly challenges the Knox County Criminal Court's order denying his motion to dismiss a presentment against him. Easterly claims that the state is barred from prosecuting him for the offense charged in the presentment because (1) the case was not joined with a prior prosecution of him in Sevier County, (2) the criminal conduct charged in the presentment is the same offense for double jeopardy purposes as the case in which he was convicted in Sevier County, and (3) the delay in commencement of the Knox County prosecution violates his speedy trial and due process rights. Because we agree with the defendant that both the mandatory joinder rule and double jeopardy principles bar dual prosecutions, we reverse the trial court's order and dismiss the presentment.

The defendant was convicted of aggravated rape and sentenced to forty years as a violent offender. He timely appealed, alleging, inter alia, that the trial court erred in not suppressing a confession obtained, following his warrantless arrest, after he had been jailed for five days without a determination of probable cause; in allowing DNA results into evidence; and in permitting a forensic nurse examiner to testify as a keeper of the sexual assault resource center records. Based upon our review, we conclude that testimony regarding the records of the Memphis Sexual Assault Resource Center was properly admitted as business records testimony and that the DNA evidence was properly admitted, as well. We conclude that the defendant's confinement violated his Fourth Amendment rights and that his confession should have been suppressed. However, this error was harmless in light of the other evidence. Accordingly, we affirm the conviction.

The defendant, Troy Wayne Davis, was convicted of aggravated assault. The trial court imposed a sentence of three years, to be served consecutively to a robbery sentence for which the defendant was on probation at the time of the aggravated assault. The single issue presented for review is whether the evidence is sufficient. The judgment is affirmed.

The defendant, Jody Sweat, indicted for attempted first degree murder and aggravated assault, was convicted of attempted second degree murder and aggravated assault. The trial court imposed concurrent sentences of 11 and four years, respectively. In this appeal of right, the defendant challenges the sufficiency of the evidence for attempted second degree murder; argues that the trial court improperly instructed the jury on attempted second degree murder as a lesser included offense; contends that the state was guilty of prosecutorial misconduct during closing argument; and submits that the jury was allowed to consider exhibits never offered into evidence. The judgments are affirmed.

The Defendant, Grady Paul Gatlin, was convicted by a jury of possession with intent to sell a schedule IV controlled substance, possession with intent to sell a schedule II controlled substance, possession of drug paraphernalia, and conspiracy to possess with intent to sell a schedule II
controlled substance. In this appeal as of right, the Defendant argues (1) that the evidence introduced at trial was insufficient to prove that the Defendant intended to sell controlled substances and (2) that it was plain error for the trial court to fail to instruct the jury on the lesser included offense of casual exchange. We reverse the Defendant’s convictions for possession with intent to sell a controlled substance and also his conviction for conspiracy to possess with intent to sell a controlled substance.  The Defendant’s conviction for possession of drug paraphernalia remains unaffected.

I must respectfully depart from the lead opinion in this case. I cannot conclude that the misdemeanor offense of casually exchanging a controlled substance is a lesser-included offense of felony possession with the intent to sell or deliver. Compare Tenn. Code Ann. § 39-17-417(a)(4) (1997) with Tenn. Code Ann. § 39-17-418(a) (1997).

I, like Judge Witt, respectfully disagree with Judge Welles’ conclusion that the trial court committed reversible error by failing to charge “casual exchange” as a lesser-included offense of possession with intent to sell. However, I also respectfully disagree with Judge Witt’s conclusion that the failure to give the casual exchange inference instruction was plain error. I would affirm.