APPELLATE COURT OPINIONS

This is a child support case. Father/Appellant seeks reversal of the amount of child support arrearage set by the trial court and relief from the trial court’s award of attorney’s fees and costs to Mother/Appellee. The trial court’s calculation of arrearage is based upon a trial exhibit that is not in keeping with the governing orders of support. Consequently, the calculation constitutes a retroactive modification of support, which is disallowed under T.C.A. § 36-5-101(a)(5). We reverse in part, affirm in part, and remand.

In 1992, the defendant, Drama Sue Davis, alias, pled guilty and was sentenced for DUI, a Class A misdemeanor. Judgment was not entered, and the matter was reset so the defendant would have time to pay the fine and costs. She was to appear at the next setting unless she had paid the fine, costs, and restitution in the interim. Although the costs had been only partially paid, she did not appear at the next setting. A capias was issued, but the defendant was not arrested until ten years later, with the judgment then being entered by the trial court. On appeal, the defendant asserts that, pursuant to Tennessee Code Annotated section 40-6-206, the capias was void after five years, with the trial court thus lacking jurisdiction to impose sentence; and she was denied her right to a speedy trial. Following our review, we affirm the judgment of the trial court.

Petitioner, Faron Douglas Pierce, appeals the post-conviction court’s denial of his petition for post-conviction relief in which he alleged the ineffective assistance of counsel at trial when he was convicted of robbery. After a thorough review, we affirm the denial of post-conviction relief.

This workers' compensation appeal has been referred to the Special Workers' Compensation Appeals Panel of the Supreme Court 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. The Commissioner determined that the employee had suffered a carpal tunnel injury requiring surgery, that notice was excused, and that employee retained a permanent disability to the left third finger of fifty (50%) percent, and the left second finger of thirty (30%) percent. Employee appeals, insisting that the Commissioner erred in not making the permanent disability award to both arms. The employer appeals the finding that notice was excused. We find that the evidence preponderates in favor of the trial court’s finding that notice was excused, but that the evidence preponderates against limiting the disability to the fingers of the left hand for this carpal tunnel injury. Instead, we find the employee has suffered a permanent partial disability to the left arm in the amount of thirty (30%) percent. Judgment of the Claims Commission affirmed in part and modified.

The Shelby County Circuit Court upheld the decision of the Civil Service Merit Board to terminate the employment of Tanya Hollimon. We affirm.

This appeal arises from an action brought by the metropolitan government to collect delinquent property taxes. The taxpayer owned 37.25 acres of property that were zoned commercial but were granted "greenbelt" status. In 1999, the taxpayer leased 1.21 acres of his property to a retail pharmacy, but he did not inform the assessor's office of the change in use of the 1.21 acre portion of his land. In 2000, after the assessor's office learned of the change in use through a review of a building permit summary, the assessor changed the classification on the entire 37.25 acre parcel from "greenbelt" to commercial. As a result, a "rollback" was issued causing taxes to be due on the entire 37.25 acre parcel at a commercial rate for the three previous years. The assessor mailed the taxpayer a 1999 tax bill showing the amount owed due to the rollback. Although the assessor informed the taxpayer that the matter could no longer be corrected through the assessor's office, the taxpayer did not file an administrative appeal or bring a lawsuit to dispute the error in classification and assessment. Following a hearing on the delinquent tax lawsuit, the trial court found that the assessor's office erred in removing the taxpayer's entire parcel from "greenbelt" classification and subjecting the entire parcel to a tax "rollback." The court found that only the 1.21 acre portion of the parcel used for construction of the pharmacy should have lost "greenbelt" status. Additionally, the court found that, because the parties stipulated that no change in use of the property had occurred since the underlying action was initiated, its findings were dispositive not only for tax years 1999 and 2000, but also through the date of the final order, November 26, 2003. The metropolitan government appealed arguing that the taxpayer was barred by statute from contesting the validity of the assessment once the delinquent tax lawsuit was filed. We reverse.

The petitioner, Horace Demon Pulliam, appeals the dismissal of his petition for post-conviction relief alleging that the post-conviction court erred in finding that he received effective assistance of counsel. After a review of the record, we affirm the judgment of the post-conviction court.

A Warren County Circuit Court jury convicted the defendant, Jeremiah Ginn, of second degree murder, a Class A felony, and the trial court sentenced him to twenty-four years in the Department of Correction. The defendant appeals, claiming that the evidence was insufficient to support his conviction; that the trial court erred in instructing the jury by referring to statements made by the defendant as “admission against interest;” by not repeating mens rea definitions for lesser included offenses; and by not including a charge on the doctrine of “mutual combat”; that the trial court erred in allowing the state to introduce certain photographs into evidence; and that his sentence is excessive. We affirm the judgment of the trial court.

The appellant was discharged from her job by the City of Morristown based upon allegations that she participated in the use, possession, sale and distribution of marijuana in violation of the City's policy against illegal drugs in the workplace. She applied for unemployment benefits and her claim was denied. She appealed the denial of benefits and both the Appeals Tribunal and the Board of Review of the Employment Security Division of the Tennessee Department of Labor and Workforce Development ruled that she was eligible for unemployment benefits because the City failed to prove the alleged illegal drug activity. The trial court reversed the decision of the Board of Review. We hold that the trial court exceeded its authority under the applicable standard of review, and therefore, we reverse the judgment of the trial court and remand.

This workers' compensation appeal has been referred to the Special Workers' Compensation Appeals Panel of the Supreme Court in accordance with Tenn. Code Ann. § 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 insists the trial court erred (1) in awarding temporary total disability benefits, (2) in finding the employee suffered an injurybyaccident, and (3) in awarding permanent partial disability benefits based on 25 percent to the body as a whole. As discussed below, the panel has concluded the judgment should modified by omitting the award of temporary total disability benefits.

I concur with all portions of the majority opinion except for that portion which holds that application of enhancement factors (9) (previous history of unwillingness to comply with conditions of sentencing involving release into the community) and (10) (defendant employed a deadly weapon during the commission of the offense), was harmless error beyond a reasonable doubt, though in violation of the dictates of Blakely v. Washington, 542 U.S. ____; 124 S.Ct. 2531 (2004). Assuming arguendo, for the purposes of this case, that Blakely error is subject to constitutional harmless error analysis, the particular facts of this case leave me where I cannot conclude beyond a reasonable doubt that the jury would have found it proper to apply enhancement factors (9) and (10).

In a three count indictment returned by the Houston County Grand Jury, Defendant, David A. Langley, was charged with rape of a child in the first two counts and with aggravated assault in count three. Following a jury trial, Defendant was convicted of rape of a child, a Class A felony, in count one; of the lesser included offense of aggravated sexual battery, a Class B felony, in count two; and of reckless endangerment with a deadly weapon, a Class E felony, in count three. Defendant was sentenced as a Range I standard offender to twenty-three years for the rape of a child conviction, ten years for the aggravated sexual battery conviction, and two years for the reckless endangerment conviction. The trial court ordered Defendant's sentence for aggravated sexual battery to be served consecutively to his sentence for rape of a child, and his sentence for reckless endangerment to be served concurrently with his sentence for aggravated sexual battery, for an effective sentence of thirty-three years. On appeal, Defendant argues (1) that the evidence is insufficient to support his convictions; (2) that the trial court's demeanor denied Defendant his due process right to a fair trial; (3) that the trial court erred in not suppressing Defendant's statements which he made on the night he was arrested; (4) that the trial court erred in not granting a mistrial when the State's witnesses made references to Defendant's previous incarceration and offenses; (5) that the State failed to make a proper election of offenses; (6) that the trial court erred in not permitting Defendant to call a certain witness and in limiting Defendant's cross-examination of Officer Chad Smith; (7) that the trial court erred in not allowing Defendant to introduce evidence pursuant to Rule 412 of the Tennessee Rules of Evidence; and (8) that the trial court erred in deferring its ruling of Defendant's motion to suppress the pornographic photographs found on his computer after his arrest. Defendant does not appeal the length or manner of service of his sentences. Following a thorough review of the record, we dismiss Defendant's conviction of felony reckless endangerment and remand for a retrial on count three of Defendant's indictment in accordance with this opinion. We otherwise affirm Defendant's judgments of conviction for rape of a child and aggravated sexual battery.

The petitioner, James R.W. Reynolds, pled guilty to two counts of aggravated rape and was sentenced to concurrent thirty-five year sentences. Subsequently, the petitioner filed a petition for a writ of habeas corpus, alleging that Blakely v. Washington, 542 U.S. __, 124 S. Ct. 2531 (2004), rendered the 1982 Sentencing Reform Act unconstitutional in general and unconstitutional as applied to him specifically. The habeas corpus court summarily denied the petition for a writ of habeas corpus, and the petitioner appeals. Upon our review of the record and the parties’ briefs, we affirm the judgment of the habeas corpus court.

The defendant, Gary Hopper, pled guilty in two separate cases to vehicular assault as the result of intoxication, a Class D felony; reckless aggravated assault, a Class D felony; and leaving the scene of an accident, a Class A misdemeanor, for which he received an effective sentence of seven years, eleven months and twenty-nine days in the county workhouse as a Range II, multiple offender. The sole issue he raises on appeal is whether the trial court should have sentenced him to community corrections instead of incarceration. Following our review, we affirm the judgment of the trial court.

On appeal, the defendant challenges (1) the sufficiency of the evidence to support the verdicts, and (2) the trial court’s denial of his request for a mistrial. Following our review, we conclude that the evidence presented was sufficient to support the jury’s verdict and that the trial court did not abuse its discretion in denying the defendant’s request for a mistrial. We affirm the judgments of the trial court.

The issues presented by these consolidated Rule 9 interlocutory appeals are whether Tennessee's sexual exploitation of a minor statute is constitutional in light of Ashcroft v. Free Speech Coalition, 535 U.S. 234, 122 S. Ct. 1389 (2002), and whether the trial court may require the State to provide the defense with a copy of the alleged child pornography that forms the basis for the prosecution's case. As to these questions, the trial courts ruled that the State had to provide the defense with copies of the alleged pornographic materials and that while a portion of the statute is unconstitutional, the remainder is not. Following our review, we affirm the rulings of the trial courts.

On appeal, the defendant contends that: (1) the trial court erred in ruling that he could not use his peremptory challenges to “strike back” jurors after the first two rounds of challenges; and (2) the State failed to comply with Tennessee Rule of Criminal Procedure 16, by failing to disclose a letter written by the defendant to his girlfriend, thus disadvantaging his trial preparation. Upon our review, we affirm the defendant’s conviction.

Separate petitions for the appointment of conservator were filed, one by the two nieces of the disabled person and the other by a daughter. Notwithstanding the statutory preference given to the daughter, the probate court determined that it was in the best interest of the disabled person to grant the petition filed by the nieces. We affirm.

This is a boundary line dispute. C. W. McMahan (“the plaintiff”) and Barbara Jean Greene (“the defendant”) owned adjacent tracts of land. Both parties received their respective tracts through a complicated chain of title. When a dispute arose as to the location of the boundary line, the plaintiff brought this action seeking to clear title. Following a bench trial, the trial court found for the plaintiff. The defendant appeals. We affirm.

The defendant, William Belchia, was convicted by a Shelby County Criminal Court jury of theft of property over $1000 but less than $10,000, a Class D felony, for failing to return a rental car. He was sentenced as a career offender to twelve years in the Department of Correction. In a timely appeal to this court, he argues that the State failed to prove beyond a reasonable doubt that he intended to deprive the rental car company of its property and that the trial court erred by not instructing the jury on the temporary taking of a vehicle, Tenn. Code Ann. § 55-5-104, as a lesser-included offense of theft of property. Following our review, we affirm the judgment of the trial court.

The Defendant, Larry Porter, was convicted of aggravated assault, and the trial court sentenced the Defendant to eight years, as a multiple offender. On appeal, the Defendant contends that: (1) the evidence is insufficient to sustain his conviction; and (2) the trial court erred when it sentenced him.  Finding no reversible error in the judgment of the trial court, we affirm the Defendant’s conviction and sentence.

The Tennessee Department of Children’s Services began providing services to the biological parents of three minor children in December of 2000. Eventually, all three children were removed from the home after the juvenile court determined they were dependent and neglected due to the parents’ failure to provide for their medical and nutritional needs. The department created a permanency plan for each child calling for the parents to provide adequate housing, provide for the children’s medical and nutritional needs, undergo a psychological evaluation and follow through with treatment recommendations, and participate in counseling/parenting classes designed to teach the parents how to adequately provide for their children. The department subsequently filed a petition to terminate the biological parents’ parental rights, alleging the grounds of abandonment, substantial noncompliance with the responsibilities in the permanency plans, persistent conditions, and the mother’s alleged mental incompetency. Following a trial, the juvenile court entered an order terminating the biological parents’ parental rights to their minor children. The juvenile court found that the department proved by clear and convincing evidence that the parents abandoned the children, substantially failed to comply with the responsibilities in the permanency plans, and allowed conditions to persist which made it unsafe to return the children to the parents. In addition, the juvenile court found that terminating the parents’ parental rights was in the children’s best interest.  Only the mother filed an appeal to contest the juvenile court’s judgment. We affirm.

The defendant, Howard Walter Thomas, was convicted of first degree premeditated murder; especially aggravated robbery, a ClassAfelony; especially aggravated kidnapping, a Class A felony; and attempted first degree murder, also a Class A felony. He was sentenced to life imprisonment for the first degree murder conviction and sentenced as a Range I, standard offender to twenty-two years for the especially aggravated robbery conviction, twenty-two years for the especially aggravated kidnapping conviction, and twenty-five years for the attempted first degree murder conviction, with the twenty-two-year sentences to be served concurrently and the twenty-five-year sentence to be served consecutively, for an effective sentence of life plus twenty-five years. On appeal, the defendant raises the following claims: (1) the circumstances surrounding his identification by one of the victims amounted to prejudicial error; (2) the trial court erred by allowing the State to exercise a peremptory challenge based on the juror’s learning disability, by utilizing the pattern jury instructions on the element of deliberation, by proceeding with a death-qualified jury after the State withdrew its intent to seek the death penalty post-trial, and by failing to provide any weight to the mitigating factor of childhood/family background in sentencing for the attempted first degree murder conviction; (3) the evidence was insufficient to support a verdict of guilt with respect to the element of deliberation; (4) the death penalty is unconstitutional under the Tennessee and United States Constitutions; and (5) that cumulative error denied the defendant a fair trial.  Following our review, we affirm the convictions but, in light of the subsequent decision of the United States Supreme Court in Blakely v. Washington, 542 U.S. __, 123 S. Ct. 2531 (2004), reduce the sentences for attempted first degree murder, especially aggravated robbery, and especially aggravated kidnapping to twenty-one years, eighteen years, and eighteen years, respectively. We affirm the consecutive sentencing of the defendant.

The petitioner, Jerry Allen Millsaps, challenged his 1998 Monroe County Criminal Court jury conviction of first degree murder via filing the October 1, 2001 post-conviction relief proceeding now under review. The post-conviction court conducted an evidentiary hearing and dismissed the post-conviction petition. On appeal, the petitioner claims that the conviction was the result of ineffective assistance of counsel and that the post-conviction court erred in dismissing the petition. We disagree and affirm the dismissal.

The majority concludes that modification of the defendant’s sentence is required in light of Blakely v. Washington, 542 U.S. __, 124 S. Ct. 2531 (2004). I must respectfully dissent.