APPELLATE COURT OPINIONS

The appellant, Larry Ballentine,¹ was convicted by a jury in the Wayne County Circuit Court of possession of a Schedule III controlled substance with the intent to sell. He received a sentence of six years incarceration in the Tennessee Department of Correction. On appeal, the appellant contests the sufficiency of the evidence supporting his conviction and the trial court's evidentiary rulings on impeachment evidence. Upon our review of the record and the parties' briefs, we affirm the judgment of the trial court.

Thomas David Caldwell ("Father") filed a complaint for divorce from his wife of ten years, Davina Kay Duke Caldwell ("Mother"). The trial court, inter alia, awarded the parties a divorce, named Mother primary residential parent of the parties' minor child, and divided the parties' marital property. Father appeals both the custody determination and the division of marital property. We affirm.

The wife sued for back child support on the basis that the parties' Marital Dissolution Agreement provided for a percentage of the husband's income which had not been paid. The Trial Court refused to award back support. On appeal, we affirm the Judgment of the Trial Court.

An inmate incarcerated in a prison operated by Corrections Corporation of America sued the corporation for damages arising from its alleged failure to provide him with proper dental care while he was in its custody. The defendant filed a motion to dismiss for improper venue and/or for untimeliness. The trial court granted the motion and dismissed the case with prejudice, but did not state the reason for its decision. We affirm the trial court because the one-year statute of limitations had passed before the plaintiff filed his complaint.

In this child custody case, Father appeals and argues that the trial court erred in awarding Mother primary residential custody of the parties' twin minor children. Mother also appeals and argues that the trial court erred in setting Father's child support, in failing to assess her attorney's fees against Father, and in changing the children's surname to that of Father. After careful review of the evidence and applicable authorities, we find no error and affirm the judgment of the trial court in all respects.

For the reasons stated herein, I respectfully dissent from the majority’s conclusion. I further wish to express concerns over a recurring anomaly with which we are faced. An ever-increasing number of incarcerated inmates are filing habeas corpus petitions in reliance upon the holding in McLaney v. Bell, 59 S.W.3d 90 (Tenn. 2001). These petitioners complain that their sentences are illegal, as they were required to be sentenced consecutively rather than concurrently. In the instant case, the petitioner received an effective sentence of twenty years but complains that he should have received a sentence of at least twenty-three years. At the time of his guilty plea, he was facing a sentence of forty-three years minimum, if all sentences ran consecutively. I fail to understand how the petitioner is aggrieved by the agreed sentence.

On appeal, the defendant challenges the trial court's failure to merge his sexual battery and attempted false imprisonment convictions into his rape conviction; the denial of alternative sentencing; and the sufficiency of the evidence. Upon review, we conclude that the acts perpetrated on the victim constituted three discrete offenses and that the trial court did not err in failing to merge them. We further conclude that the trial court appropriately denied alternative sentencing and that the evidence was sufficient to support the verdicts. For these reasons, we affirm.

The petitioner, Larry Dotson, appeals from the lower court’s summary dismissal of his pro se petition for writ of habeas corpus. Following our review of the parties’ briefs and applicable law, we reverse the court’s dismissal of the petition and remand for further proceedings consistent with this opinion.

The majority concludes that the trial court committed reversible error by failing to grant a mistrial. I respectfully dissent. The majority opines that trial counsel’s overreaching remarks made during his opening statement, informing the jury that it was the victim who first struck the defendant, so tilted the scales of justice as to require the granting of a mistrial for reasons of manifest necessity.  See generally Millbrooks, 819 S.W.2d at 443; Zimmerman, 823 S.W.2d at 226.

The defendant appeals his conviction for theft of property, contending that the evidence failed to establish that he took the property without the owner's effective consent. However, upon review, we conclude that the evidence was sufficient to support the verdict and affirm the judgment of the trial court.

In this appeal, the issue presented is whether a party has standing to pursue a personal injury claim in state court that accrued after the filing of the party’s bankruptcy petition and before the closing of the bankruptcy case. Ms. Headrick filed a Chapter 13 bankruptcy petition. While the bankruptcy case was pending, Ms. Headrick was involved in a single car accident and was treated for her injuries by Dr. Daniel Johnson at Bradley County Memorial Hospital. Subsequently, she converted her Chapter 13 bankruptcy case to a Chapter 7 bankruptcy case. While the Chapter 7 case was still pending, she discovered that she suffered a hip fracture in the car accident which she alleges that Dr. Johnson and the Hospital failed to timely diagnose and treat. Thereafter, Ms. Headrick received a discharge in bankruptcy and the bankruptcy case was closed. Ms. Headrick then filed a medical negligence case against Dr. Johnson and Bradley Memorial Hospital. The Defendants filed a motion for summary judgment asserting that Ms. Headrick did not have standing to bring the case. The trial court agreed and dismissed the case. After review of the record and applicable authorities, we hold that Ms. Headrick’s post-bankruptcy cause of action is not part of the bankruptcy estate and therefore, as a matter of law Ms. Headrick did have standing to bring the lawsuit. The trial court’s decision is reversed.

The petitioner, Ronnie Finch, was convicted by a jury of facilitation of first degree murder, two counts of attempted first degree murder and two counts of aggravated assault. As a result, the petitioner was sentenced to a total of forty-nine years in incarceration. The petitioner's convictions and sentence were affirmed by this Court on appeal. See State v. Frank E. Huey, et al, No. M2000-02793-CCA-R3-CD, 2002 WL 517132 (Tenn. Crim. App. at Nashville, Apr. 5, 2002), perm. app. denied, (Tenn. Oct. 14, 2002). The petitioner subsequently filed a pro se petition for post-conviction relief, alleging inter alia ineffective assistance of counsel. After an evidentiary hearing, the post-conviction court denied the petition. On appeal, the petitioner challenges the post-conviction court's denial of the petition. For the following reasons, the judgment on post-conviction petition is reversed; the judgment of acquittal is entered; and verdicts of guilt are vacated and dismissed.

The defendant, Kervin Collins, was involved in an altercation with his father, the victim. The defendant hit the victim several times with a shovel. After an indictment for aggravated assault, a Davidson County jury found the defendant guilty as charged. The trial court sentenced the defendant to five years as a Range I standard offender, and the defendant appealed. We reverse the judgment of the trial court with regard to the denial of the defendant’s motion for mistrial and remand for a new trial.

The defendant, Harold Frank Henderson, Jr., pled guilty to aggravated assault in return for a four-year sentence served in a manner to be determined by the trial court. The trial court ordered the defendant to serve his sentence in confinement, and the defendant appealed. Following our review of the record and the parties' briefs, we affirm the judgment of the trial court.

The Petitioner, Freddy Lee Parrish, Jr., 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 pursuant to Rule 20, Rules of the Court of Criminal Appeals. The State’s motion is granted. The judgment of the trial court is affirmed.

Both parties appeal aspects of the final divorce decree. Husband contends the trial court erred by awarding wife transitional alimony in excess of his ability to pay and in excess of her need. Wife raises six issues, contending she should have been granted the divorce due to his abuse; that child support should be increased; that she should be awarded the tax deductions for all three children; that she should be named trustee of life insurance for the benefit of the children; and that husband should pay her attorney fees at trial and on appeal. We affirm the trial court in all respects but one, finding the transitional alimony was set at an amount greater than husband's ability to pay.

The defendant was convicted of attempted second degree murder and sentenced as a Range II, multiple offender to confinement for nineteen years to be served consecutively to two prior sentences. In his appeal, he argues that the trial court erred in allowing hearsay testimony as to the desire of one of the witnesses, prior to the incident, to leave the house where the offense occurred, and that the evidence is insufficient to sustain the conviction. Following our review, we affirm the judgment of the trial court.

A Hamilton County jury convicted the defendant, Alfonzo Thomas Peck, of two counts of aggravated rape (a Class A felony), and the trial court sentenced him as a repeat violent offender to concurrent sentences of life without the possibility of release. On direct appeal, the defendant raises multiple issues for our review, including the sufficiency of the evidence, challenges to the admission of a prior conviction, a limiting instruction, and sentencing. Upon review, we conclude that the trial court erred in allowing the defendant to be cross-examined regarding his prior conviction of aggravated rape. However, given the overwhelming proof of the defendant's guilt notwithstanding the conviction, we further conclude that the error was harmless. Moreover, we find no error in the balance of the issues presented. Therefore, we affirm.

After the divorce where the wife was awarded alimony for two years, the wife petitioned the Court for alimony in futuro, which the Trial Court granted. On appeal, we affirm.

A Hamblen County Criminal Court jury convicted the defendant, William G. Arterburn, of driving under the influence, second offense ("DUI"), a Class A misdemeanor, and driving on a revoked license, a Class B misdemeanor, and the trial court sentenced him to eleven months and twenty-nine days for the DUI and six months for the driving on a revoked license, ordering the defendant to serve fifty percent of his sentence in incarceration. The defendant appeals, claiming that the evidence is insufficient and that a rebuttal witness violated Rule 615 of the Tennessee Rules of Evidence, thereby denying him a fair trial. We affirm the judgments of the trial court.

The Petitioner, Rahim Al Zarkani, 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 pursuant to Rule 20, Rules of the Court of Criminal Appeals. The State’s motion is granted. The judgment of the trial court is affirmed.

This appeal illustrates the problems that befall divorcing parents when they agree, without court approval, to a child support arrangement that is inconsistent with the Child Support Guidelines. Five years after the parents' divorce, the mother filed a petition in the Circuit Court for Davidson County seeking to increase the father's child support obligation. The trial court approved a formula devised by the parties that did not comply with the Child Support Guidelines. The parties later ignored that formula and followed another ad hoc arrangement for approximately ten years. Eventually, the mother filed a petition in the trial court seeking to hold the father in contempt for failing to pay child support and to collect the arrearage. The trial court turned the matter over to a substitute judge who determined that the father was not in contempt because both parties had followed their formula to the best of their abilities even though it was ambiguous. The trial court also set the father's support for the remaining minor child and directed the father to pay $2,375 in additional support for that child. The mother appealed. We have determined that the father owes $64,529 in back child support and that the parties' three children are entitled to this arrearage. Therefore, we vacate the portion of the judgment regarding back child support and remand the case for the entry of an appropriate payment plan.

This workers’ compensation appeal has been referred to the Special Workers’ Compensation
Appeals Panel in accordance with Tenn. Code Ann. § 50-6-225(e)(3) for hearing and reporting of
findings of fact and conclusions of law. In this appeal, the employer asserts that the evidence
preponderates against the trial court’s award to the employee of 50% permanent partial disability to body as a whole. The employer also argues that the trial court erred in requiring it to pay the
employee $1,302.00 for unauthorized chiropractic treatment. We conclude that the medical evidence preponderates against the trial court’s rulings, and in accordance with Tenn. Code Ann. § 50-6-225(e)(2), reverse the judgment of the trial court as to both issues.

The Appellant, Tim Holt, appeals the judgment of the Hancock County Criminal Court denying post-conviction relief. Holt was convicted of first degree murder and sentenced to life imprisonment. On appeal, Holt argues that he was denied his Sixth Amendment right to the effective assistance of counsel. After review, the judgment of the post-conviction court is affirmed.

This appeal arises from a divorce case. After ten years of marriage, the husband filed a divorce complaint in the Chancery Court for Lincoln County. Even though both parties sought to be the primary residential parent prior to the trial, the court placed the children in the husband's custody after the wife attempted suicide. After conducting a bench trial, the court designated the father as the primary residential parent and granted the mother unsupervised visitation. On this appeal, the mother asserts that the trial court erred with regard to the custody of the children and the division of marital assets. She also insists that the trial court erred by holding her in criminal contempt. While we reverse the trial court's finding that the mother was in criminal contempt, we affirm the court's decisions regarding custody and the division of the marital estate.