APPELLATE COURT OPINIONS

The Petitioner, Christopher L. Dethrow, appeals the trial court's denial of his petition for postconviction 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. A review of the record supports the State’s position. Accordingly, the State's motion is granted and the judgment of the trial court is affirmed.

The petitioner, Thomas Eugene Hargis, appeals the trial court's dismissal of his petition for writ of habeas corpus. 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. The petition presents no cognizable claim for habeas corpus relief. Accordingly, the State's motion is granted and the judgment of the trial court is affirmed.

We granted permission to appeal in this case to determine whether the trial court erred in considering the results of the defendant sex offender's polygraph examination when denying the defendant's request for probation. The polygraph examination was administered as part of the risk assessment report that is mandated by statute for all sex offenders seeking probation. Because polygraph examinations are inherently unreliable, we hold that trial courts may not consider polygraph examination results or any portion of a risk assessment report that relies upon polygraph examination results when imposing sentences. However, even excluding the polygraph examination results, the record in this case supports the denial of probation. Accordingly, the judgment of the Court of Criminal Appeals is affirmed in part and modified in part.

The appellant, Marty William Thomas, was convicted by a jury in the Hamilton County Criminal Court of four counts of aggravated rape and one count of aggravated burglary. Following a hearing, the trial court sentenced the appellant to an effective sentence of fifty-four years incarceration in the Tennessee Department of Correction. On appeal, the appellant claims that the trial court erred by (1) admitting into evidence three photographs of the appellant taken on different dates; (2) replaying only the direct testimony of the victim for the jury during deliberation; and (3) denying the appellant's motion for a mistrial on the ground that the jury was prejudiced by media reports. Upon review of the record and the parties' briefs, we affirm the judgments of the trial court.

The defendant, Joey Dewayne Thompson, appeals as of right from his convictions by a jury in the Knox County Criminal Court for second degree murder, a Class A felony, and attempted second degree murder, a Class B felony. The trial court sentenced him to twenty-five years for the second degree murder and twelve years for the attempted second degree murder, to be served consecutively in the Department of Correction. The defendant contends that: (1) the evidence is insufficient to support the convictions; (2) the trial court erred by allowing the state to amend the indictment to include a count for first degree felony murder; (3) the trial court erred by admitting a 9-1-1 tape; (4) the trial court erred by allowing reference to the defendant's nickname, "Joe Thug"; (5) the trial court erred by allowing the state to cross-examine the defendant on a robbery charge that had been dismissed; (6) prosecutorial misconduct requires a new trial; (7) the trial court erred in its instructions to the jury regarding "knowing"; and (8) the trial court erred in giving him excessive and consecutive sentences. We conclude that the trial court committed reversible error in its instructions to the jury regarding "knowing." Accordingly, we reverse the judgments of the trial court and remand the case for a new trial.

The petitioner, Bryan Pearson, appeals the trial court's dismissal of his petition for writ of habeas corpus. The state has filed a motion requesting that this court affirm the trial court's denial of relief pursuant to Rule 20, Tenn. Ct. Crim. App. R. The petitioner has not established that the challenged judgment is void or that his sentence has expired. Accordingly, the motion for summary affirmance is granted and the judgment of the trial court is affirmed.

Plaintiff sued defendant nursing home located in Carroll County for damages for the injuries and death of plaintiff’s decedent while a patient in the nursing home. Defendant-nursing home, in its answer, alleged comparative fault on the part of Jackson-Madison County General Hospital, a governmental entity. Plaintiff amended her complaint to allege fault on the part of the hospital. The hospital then filed a motion to dismiss for improper venue which was denied by the trial court. The case is before this Court on a Rule 9 Interlocutory Appeal. We reverse and remand.
 

The defendant, Robin McNeal Vanhoose, appeals the trial court’s dismissal of his motion to correct illegal sentence. The State filed a motion to dismiss the appeal or, in the alternative, to affirm the dismissal by the trial court pursuant to Rule 20, Rules of the Tennessee Court of Criminal Appeals. Upon reviewing the record, the defendant’s brief, and the State’s motion and brief, we affirm the trial court’s dismissal of the defendant’s motion to correct illegal sentence.

The petitioner, Christa Gail Pike, appeals as of right from an order denying her motion to reinstate a petition for post-conviction relief. Her counsel had previously appealed an order approving the withdrawal of the post-conviction claim. In this appeal, the petitioner asserts (1) that an inmate under a sentence of death should not be permitted to waive post-conviction review of a capital case; (2) that the hearing conducted by the post-conviction court to determine whether her decision to waive further challenges to her conviction and sentence did not comply with due process requirements; and (3) that the post-conviction relief petition was not properly withdrawn. This court concludes that the petitioner, under a capital sentence, may waive post-conviction review; that the hearing was in compliance with due process standards; and that the evidence supported the findings that the petitioner was competent to withdraw her post-conviction petition and that her decision to do so was voluntarily and knowingly made. The judgment of the post-conviction court allowing the withdrawal of the post-conviction petition is affirmed. The order denying the motion to reinstate the petition is also affirmed.

The petitioner, Stephen Otis Nicely, appeals the Knox County Criminal Court's denial of his petition for post-conviction relief from his rape of a child conviction, his aggravated sexual battery conviction, and his resulting effective sentence of twenty-two years. The petitioner claims that he received the ineffective assistance of counsel because his attorney (1) refused to let him testify at trial; (2) failed to challenge the admissibility of evidence of the victim's post-traumatic stress disorder; (3) failed to prepare and investigate adequately for trial; and (4) failed to instruct the petitioner on the range of punishment if convicted. We affirm the trial court's denial of the petition.

Plaintiffs, police officers along with a number of others, were promoted to sergeant after passing a promotional test. Subsequently, the test was declared invalid by the federal court and the city announced its intention to restore the affected officers to their previous rank pending the administration of a new promotional test. Plaintiffs, along with others, filed suit in chancery court to enjoin this action on the part of the city. The chancery court issued a temporary injunction, enjoining the city from removing plaintiffs from their rank of sergeant or from reducing their pay pending final judgment. The chancellor clarified the injunction by order which provided that the injunction would be in effect only “until such time as promotions are made from the 2001 sergeant promotional process.” Of the fifty-four plaintiffs in the chancery court taking the new promotional test, the seven plaintiffs-appellants did not rank high enough for promotion. On motion of the city, the chancery court dissolved the preliminary injunction previously issued and, by consent order, allowed the plaintiffs full credit of time served as sergeant as a result of the first promotional process. Plaintiffs have appealed. We affirm.

The defendant, Anthony J. Ramey, appeals his jury conviction of aggravated sexual battery, a lesser-included offense of rape of a child with which he was originally charged. He claims (1) that the evidence presented at trial was insufficient to find him guilty of aggravated sexual battery; (2) that the trial court should have granted his motion for judgment of acquittal; (3) that the length of his sentence is excessive; (4) that the jury should have been instructed on the lesser-included offense of child abuse; and (5) that Code section 40-18-110(c), which requires a written request for an instruction on a lesser-included offense, is unconstitutional. Upon review, we are unpersuaded by the defendant's arguments and, accordingly, affirm his conviction and sentence.

This case involves payment of an insurance claim demanded by Appellee from Appellant after Appellee’s belongings were destroyed in a fire. Appellant refused payment on the basis that Appellee failed to notify Appellant of an address change. After a hearing, the trial court awarded Appellee $32,000, representing her claim under the insurance policy, and $8,000 as a 25% bad faith penalty. For the following reasons, we affirm in part and vacate the award representing a bad faith penalty.
 

The defendant, Michael Ray McGill, pled guilty in the Knox County Criminal Court to violating a motor vehicle habitual offender order, a Class E felony. Pursuant to a plea agreement, the defendant received a four-year sentence with the manner of service to be determined by the trial court. After a sentencing hearing, the trial court denied the defendant's request for an alternative sentence and ordered that he serve his sentence in the Department of Correction. The defendant appeals, claiming that the trial court erred by sentencing him to confinement. We affirm the judgment of the trial court.

The opinion of the court in this matter was released on January 23, 2004, and the petitioner filed an application for permission to appeal. On June 28, 2004, our supreme court granted the application and remanded to this court, directing that we reconsider our previous conclusion that "the trial court charged the incorrect version of the aggravating circumstance in Tennessee Code Annotated section 39-2-203(i)(5) (1982)." We have reconsidered this issue and conclude that the trial court utilized the correct version of this statute when instructing the jury at the resentencing hearing as to aggravating circumstances. Additionally, as explained in this opinion on remand, we erred in the original opinion by stating that our supreme court had addressed, in the direct appeal of the resentencing hearing, whether "instructing an inapplicable version of aggravating circumstance (i)(5) was harmless error." In fact, the court did not do so. In our opinion on remand, we again affirm the post-conviction court's denial of relief, and refile our opinion which has been altered only to reflect our consideration of those matters, as previously explained, set out in the remand order.

The appellant, Michael Rogers, was found guilty by a jury in the Lauderdale County Circuit Court of possession of more than one-half ounce of marijuana with the intent to deliver. He was sentenced to six years incarceration in the Tennessee Department of Correction. On appeal, the appellant challenges the sufficiency of the evidence supporting his conviction. Upon review of the record and the parties’ briefs, we affirm the judgment of the trial court.

The defendant, Alfred N. Mason, pled guilty to possession of over twenty-six grams of cocaine with the intent to sell, a Class B felony, and was sentenced as a Range I, standard offender to ten years in the Department of Correction. On appeal, he argues that the trial court erred in denying alternative sentencing. After review, we affirm the judgment of the trial court.

The issue raised in these three workers’ compensation cases, consolidated for appeal, is whether the defendant is the employer of the plaintiffs and thus responsible for providing workers’ compensation insurance coverage for them. In each case, the trial court granted the defendant’s motion for summary judgment. We hold that under Tennessee Code Annotated section 50-6-106(1)(A), the defendant is not, as a matter of law, the plaintiffs’ employer so as to subject the defendant to liability under the Workers’ Compensation Law. Therefore, we affirm the judgments of the trial court.

The defendant entered guilty pleas in Giles County to aggravated rape, especially aggravated burglary, and assault. After imposition of the sentences, but before the judgments became final, the defendant filed a pro se motion to withdraw the guilty pleas. The trial court denied the motion. The defendant also filed a motion alleging error coram nobis, which was denied by the trial court. Both denials were consolidated for this appeal. Upon review, we affirm the judgments of the trial court.

The petitioner, Steven Griffin, appeals the trial court’s denial of his request for forensic DNA analysis, pursuant to the Post-Conviction DNA Analysis Act of 2001. Our review discloses that the trial court ruled correctly, and we affirm the denial of the petitioner’s request.

The Appellant, Brandon Scott Watson, appeals from the sentencing decision of the Davidson County Criminal Court. In January of 2003, Watson pled guilty to two counts of burglary of an automobile, class E felonies. Pursuant to a negotiated plea agreement, Watson received concurrent two-year sentences and, following a sentencing hearing, he was placed in the Community Corrections program. On April 15, 2003, a warrant was issued, alleging that Watson had violated conditions of his behavioral contract. Following an evidentiary hearing, the trial court revoked his community corrections sentences and modified the previously imposed concurrent sentences to reflect that they be served consecutively. In this appeal, Watson contends that: (1) the trial court erred in revoking his community corrections sentence based on "unreliable hearsay" evidence, specifically, the testimony of his community corrections case officer's referencing a report prepared by a Davidson County Drug Court investigator, who was not present to testify at the revocation hearing, and (2) the trial court erred in ordering his sentences to run consecutively. After a review of the record, we find no reversible error and affirm the sentencing decision of the trial court.

I respectfully disagree with the conclusion reached in the majority opinion. The Post- Conviction DNA Analysis Act has no provision that even hints of waiver relative to a request to test evidence for the first time. The applicable requirement for consideration is T.C.A. § 40-30-304(3) which states: “The evidence was never previously subjected to DNA analysis or was not subjected to the analysis that is now requested which could resolve an issue not resolved by previous analysis.” The focus is on the fact that no test occurred, not on whether a previous opportunity existed or was pursued to have the test done.

This is an independent action for fraud and coercion based on a marital dissolution agreement. On September 13, 2000, the parties executed a marital dissolution agreement, and they were divorced by final decree entered in circuit court ninety days later on December 12, 2000. In February 2003, the wife brought this independent action in the chancery court below for damages for fraud, deceit, and coercion. She alleged that the husband had coerced her into signing the marital dissolution agreement by the use of threats, had prevented her from obtaining the benefit of counsel, and had misrepresented the value of his marital assets. The husband filed a motion to dismiss, alleging that the wife had failed to state a claim upon which relief could granted. The trial court dismissed the wife’s lawsuit, determining that the complaint was essentially an action to set aside the divorce decree, and that the wife did not set out sufficient facts to support that claim. From that decision, the wife now appeals. We affirm, finding that the allegations in the complaint cannot be the basis for an independent action essentially to set aside the divorce decree.
 

This appeal involves the termination of a mother’s parental rights with regard to her ten-year-old daughter. The Department of Children’s Services obtained custody of the child after discovering that she had been sexually abused by her mother’s boyfriend. Approximately three months later, the Department and the child’s guardian ad litem filed separate petitions in the Juvenile Court for Coffee County to terminate the mother’s parental rights based on abandonment under Tenn. Code Ann. § 36-1-113(g)(1) (Supp. 2003) and severe child abuse under Tenn. Code Ann. § 36-1-113(g)(4). Following a bench trial, the juvenile court determined that the Department and guardian ad litem had failed to present clear and convincing evidence of abandonment but concluded that the mother had committed severe child abuse by knowingly failing to protect her daughter from her boyfriend. The mother has perfected this appeal. We have determined that the record contains clear and convincing evidence supporting the juvenile court’s conclusion that the mother knowingly failed to protect her child from her boyfriend’s sexual abuse and that terminating the mother’s parental rights is in the child’s best interests.

The defendant, James G. Huppe, Jr., was convicted of burglary and theft over $1000, Class D felonies, and was sentenced to concurrent terms of three years, suspended except for fifty-three days, with the balance to be served on probation. Additionally, he was ordered to pay restitution in the amount of $4278 and was fined a total of $10,000. On appeal, he argues that he was denied his right to a speedy trial, the court erred in restricting his cross-examination of the victim, and the evidence is insufficient to sustain the convictions. Following our review, we affirm the judgments of the trial court.