APPELLATE COURT OPINIONS

The defendant, Andrew Thomas, was convicted of felony murder. In imposing a death sentence, the jury found that evidence of one aggravating circumstance, i.e., the defendant was previously convicted of one or more felonies whose statutory elements involved the use of violence to the person, outweighed the evidence of mitigating circumstances beyond a reasonable doubt. The Court of Criminal Appeals affirmed the conviction and the death sentence, and the case was automatically docketed in this Court. We entered an order identifying three issues for oral argument and now hold as follows: (1) the trial court did not err in excusing a prospective juror for cause; (2) the trial court erred in refusing to instruct the jury on lesser included offenses of felony murder but the error was harmless beyond a reasonable doubt; and (3) the death sentence was not arbitrary, excessive, or disproportionate. We also agree with the Court of Criminal Appeals’ conclusions with respect to the remaining issues, the relevant portions of which are included in the appendix to this opinion. Accordingly, the Court of Criminal Appeals’ judgment is affirmed.

The defendant, William E. Ross, pled guilty in the Hardin County Circuit Court to possession of less than one-half gram of cocaine with intent to sell, a Class C felony; possession of marijuana, a Class A misdemeanor; two counts of driving on a suspended license, second offense, a Class A misdemeanor; and resisting arrest, a Class B misdemeanor. Pursuant to the plea agreement, the trial court sentenced the defendant as a Range II, multiple offender to concurrent sentences of eight years for the felonious possession of cocaine conviction; eleven months, twenty-nine days for each Class A misdemeanor conviction; and six months for the resisting arrest conviction. The trial court was to determine the manner of service of the sentences. After a sentencing hearing, the trial court ordered that the defendant serve his sentences in confinement. The defendant appeals, claiming that he should have received alternative sentences. We affirm the judgments of the trial court.

The Appellant, James Dubose, has filed a petition to rehear in this case. The opinion of this Court, affirming the judgment of the trial court, was filed October 15, 2004. Upon review of the petition to rehear, we conclude that it should be denied.

The Defendant, Wade James Odum, appeals from the trial court's dismissal of his petition for error coram nobis 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. We grant the State's motion and affirm the judgment of the trial court.

The parents in this child support proceeding have three children – twins conceived during their marriage and one child conceived after their divorce. Because of pre-2003 jurisdictional restraints, proceedings to set child support were simultaneously pending in both the Circuit Court for Davidson County and the Juvenile Court for Davidson County. The juvenile court awarded the mother a $23,273.50 judgment for retroactive child support for the youngest child and based the father’s prospective child support obligation on his ability to earn $40,000 per year. The circuit court, without considering the juvenile court’s order, calculated the father’s child support for the twins based on $25,761, the imputed annual income in the Child Support Guidelines, and then increased the amount because of extraordinary medical expenses of one of the twins. The mother has appealed the circuit court’s decision to base the father’s child support for their two older children on $25,761 per year rather than on $40,000 per year. The father has appealed both judgments. He asserts that the juvenile court erred by basing his child support for the parties’ youngest child on a $40,000 annual income and by failing to grant him requested credits against his retroactive child support. He also complains that the circuit court erred by increasing his child support because of the medical expenses of one of the twins and the combined effect of the two judgments which require him to pay This is not expressly stated in the order but it is stated in the parenting plan. 1 -2- 53% of his net income in child support, rather than 41% as provided in the Child Support Guidelines. We have determined that the juvenile court’s judgment for retroactive child support should be vacated because the father is entitled to credit for his voluntary child support payments. We have also determined that the father’s child support obligation for all three children should be based on $40,000 per year and that the combined amount of child support obligation should be 41% of his net income, with an upward adjustment for the extraordinary medical expenses of one of the twins. Finally, based on the 2003 statutes affecting the jurisdiction of the juvenile and circuit courts, we have determined that the proceeding in the juvenile court should be transferred to the circuit court and that all future matters regarding these children should be adjudicated in the circuit court.
 

Brent G. Johnson ("Father") and Kimberly S. Johnson ("Mother") were married with their only child, a daughter, being born in October of 2000. The child was born with a rare metabolic disorder resulting in developmental delays, among other things. The parties separated shortly after their daughter was born. Mother then moved to West Virginia with the parties' daughter. Father filed for divorce and Mother counterclaimed also seeking a divorce. Both parties sought to be designated as the primary residential parent of their young daughter. At a hearing to determine temporary custody, the parties reached an agreement whereby Mother would return to Tennessee within three months and Mother would be designated as the primary residential parent pending the trial. The Trial Court entered an order setting forth this accord and establishing Father's visitation schedule pending Mother's return. Mother reneged on her agreement, refused to return to Tennessee, and then set about to systematically and intentionally prevent Father from having any meaningful co-parenting time. The Trial Court later entered a final judgment designating Mother as the primary residential parent, but requiring Mother to return with the child to Tennessee and to stop interfering with Father's co-parenting time. Mother appeals claiming the Trial Court was without authority to order her to return to Tennessee. The Trial Court's order designating Mother as the primary residential parent is affirmed if Mother voluntarily returns to Tennessee. If Mother chooses not to return, the Trial Court's judgment designating Mother as the primary residential parent is vacated, and the Trial Court is instructed to determine which parent then should be designated as the primary residential parent consistent with the best interest of the minor child, with the understanding that should primary residential custody remain with Mother in West Virginia, Mother will continue to do her best to prevent Father from having any meaningful relationship with his daughter.

The defendant, Lawrence Warren Pierce, was indicted for aggravated kidnapping and rape, convicted of the lesser-included offenses of kidnapping and sexual battery, and sentenced as a Range II, multiple offender to nine years and three years, respectively, to be served consecutively. On appeal, he argues that the evidence is insufficient to support his convictions; the conviction for kidnapping violates his due process rights because it was incidental to the sexual battery offense; and the trial court erred in denying his motion to dismiss due to the State's destruction of evidence and in imposing excessive sentences to be served consecutively. Applying the subsequent decision of Blakely v. Washington, 542 U.S. __, 124 S. Ct. 2531 (2004), we reduce the defendant's sentence for kidnapping to eight years. In all other respects, the judgments of the trial court are affirmed.

The Appellant, Michael Brown, has filed a petition to rehear in this case. The opinion of this Court, affirming the judgment of the trial court, was filed October 15, 2004. Upon review of the petition to rehear, we conclude that it should be denied.

The State appeals from an order of the Hamilton County Criminal Court suppressing evidence from a motorist stop on public housing authority property. Following the stop at the street entrance into the public housing development, the officer observed two quart containers of beer in the vehicle driven by Defendant, Jerry W. Hayes. A check of Hayes' driver's license revealed that the license had been suspended. Hayes was indicted for driving on a suspended license and being a minor in possession of alcohol. The stated purpose of the housing authority's checkpoint was to ensure the safety of its residents by excluding trespassers and others without legitimate purposes seeking entry into the housing development. The trial court found the stop constituted an unreasonable seizure and was thus unconstitutional. Pursuant to Rule 9 of the Tennessee Rules of Appellate Procedure, the State seeks review of this ruling. After review, we conclude that the stop was reasonable; therefore, no Fourth Amendment violation resulted. Accordingly, we reverse the trial court's suppression of the evidence and remand for further proceedings.

This dispute arises from the assessment of the “contractor’s use tax” against Sodexho Management, Inc. for its use of personal property owned and utilities provided by David Lipscomb University. Sodexho used the university’s property to provide food service for the tax-exempt university. The Commissioner assessed a use tax on the value of the personal property and utilities provided by the university because the university, as an exempt organization, had not previously paid sales tax. The pivotal issue is whether Sodexho operated the food service as an agent of the tax exempt university or as an independent contractor. The Chancellor held that Sodexho was an agent of the its burden of proof to establish that it was an agent of the university and thus is liable for the use tax. Tenn. R. App. P.3 Appeal as of Right; Judgment of the Chancery Court Reversed and Remanded
 

This case involves the termination of Mother’s parental rights. The trial court found clear and convincing evidence to terminate Mother’s parental rights on the grounds of (1) persistent conditions and (2) substantial noncompliance with the permanency plan. Additionally, the trial court determined that termination of Mother’s parental rights was in Child’s best interest. Mother appeals the decision of the trial court. For the following reasons, we affirm.
 

The trial court determined that the boundary line separating the parties’ properties was established by an old fence line. We affirm.
 

This declaratory judgment action was filed by Allstate Insurance Company which seeks a ruling that its named insureds under a homeowners' insurance policy had no coverage and that Allstate had no duty to defend an action brought by a third party seeking damages resulting from the intentional and criminal acts of their son who resided in their home. The insureds' adult son shot his girlfriend at the home of his parents. She filed a tort action against the son and his parents alleging inter alia that the parents failed to render aid after the shooting. The policy excludes intentional and criminal acts by an insured. The son was an insured because he resided in the home with his parents. The policy also contains a "joint obligations clause" that excludes coverage for injury which may reasonably be expected to result from the intentional or criminal acts of any insured. Upon summary judgment the trial court held that the parents were not covered and that Allstate had no duty to defend the parents in the underlying tort action. We reverse finding the claim that the parents failed to render aid after the shooting constitutes a claim of separate and independent acts of negligence by the parents to which the exclusion and joint obligations clauses do not apply.

Isiah Wilson, a juvenile defendant, after transfer to Circuit Court, entered a guilty plea to aggravated rape and especially aggravated kidnapping and received agreed upon concurrent sentences of fifteen years. The defendant properly reserved a certified question of law challenging the appropriateness of the transfer ruling from juvenile court to circuit court. We conclude that the juvenile court judge adhered to the mandated statutory considerations, affirm the transfer, and, thus, also affirm the judgments of conviction.

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 employee insists the trial court erred in finding that his back injury was not causally related to an accidental injury occurring at work on October 4, 1999. As discussed below, the panel has concluded the judgment should be reversed and the cause remanded for an award of benefits.

The trial court awarded judgment to Plaintiffs upon determining that the Bank of Friendship could not foreclose on Plaintiffs’ properties because the Bank had failed to apply proceeds from a sale under a deed of trust to a senior deed of trust. We reverse and remand for further proceedings.

Workers compensation carrier, intervening Plaintiff in a suit to recover for personal injuries sustained by employee of its insured, appeals the Trial Court’s action in awarding one-third of the proceeds of settlement of damage suit to counsel for the injured employee as attorney fees. Finding no error in the action of the trial court, we affirm.
 

The Appellant, Corey Kennerly, is currently serving concurrent sentences of life imprisonment and twenty years, as a result of his guilty pleas to first degree murder and aggravated robbery. Kennerly has filed a petition pursuant to the Post-Conviction DNA Analysis Act of 2001 requesting DNA analysis of evidence that resulted in his convictions. The trial court granted Kennerly's petition and ordered that DNA analysis be performed at state expense. After Kennerly was advised by the forensic laboratory that the DNA analysis was unfavorable, he moved to voluntarily dismiss his petition without prejudice. The trial court ruled that voluntary dismissal of the petition was not authorized by the Act and dismissed the petition upon its merits. Kennerly appeals this ruling. After review, we find no error and affirm.

This is a premises liability case wherein the plaintiff alleges that she was injured when she slipped and fell on spilled baby food while shopping at the defendant's store. After trial of the case before a jury, the trial court granted the defendant's motion for a directed verdict and dismissed the case upon grounds that the plaintiff failed to present proof that the defendant had notice of an unreasonably dangerous condition. We affirm the judgment of the trial court and remand.

This is an appeal from a jury verdict finding that all parties involved were without fault in an automobile accident. We affirm.

The petitioner, Jacqueline Hurt, appeals the denial of her petition for post-conviction relief in which she asserted that her plea was not knowing and voluntary and that she was denied effective assistance of counsel. Following our review, we affirm the denial of the petition; however, we remand the matter for the limited purpose of entry of a corrected judgment.

The petitioner, Roger Neal James, appeals the denial of post-conviction relief. The issues are whether the petitioner was denied the effective assistance of counsel and whether the jury was racially biased. The judgment is affirmed.

Judgment debtor filed motion seeking to enjoin execution sale at which stock owned by debtor in judgment creditor corporation was scheduled to be sold; alternatively, debtor sought to quash the execution, alleging that the stock was exempt property. At execution sale, debtor’s stock was purchased by judgment creditor. Debtor subsequently sought to have execution sale set aside, alleging that there were defects in the manner in which the sale was conducted and asserting that the trial court should have held a hearing on his motion to quash the execution prior to the sale. Following a hearing the trial court denied relief holding that debtor had not pursued his request for injunctive relief and that the motion to quash was moot. Debtor appealed. While this case was pending on appeal, the Tennessee Supreme Court reversed the summary judgment against debtor, which led to the monetary judgment the execution sale was held to enforce and remanded for a trial on the merits. Having determined that the resolution of the issues raised in this appeal is subject to factual determinations which are within the scope of the remand, we vacate the decision of the trial court and remand this case for consideration in light of the issues to be determined.

The Appellant, Joseph D. Gaines, appeals the Wayne County Circuit Court’s summary dismissal of his petition for writ of habeas corpus. On appeal, Gaines argues that: (1) his two convictions for rape of a child are void because the indictment returned against him was not signed by the district attorney general and the plea agreement was not signed bythe trial judge; and (2) his concurrent eighteen-year sentences are illegal because they are outside the statutory sentencing range. Finding these issues to be without merit, we affirm the summary dismissal of the petition.