APPELLATE COURT OPINIONS

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.

Telecommunications corporation appeals trial court’s grant of summary judgment to city, alleging that trial court incorrectly determined that city ordinance imposing a charge of five percent
of gross revenue of the corporation was not inconsistent with T.C.A. § 65-21-103 or any other provision of Tennessee law. We reverse.
 

The Petitioner, Marcus Epps,1 pled guilty to second-degree murder, three counts of aggravated assault, two counts of attempted especially aggravated robbery, reckless endangerment, and unlawful possession of more than 0.5 grams of a controlled substance with intent to sell. The trial court sentenced the Petitioner to fifteen years in prison at 100 percent for the second-degree murder conviction and ordered that the other sentences, which were of shorter duration, run concurrently to the fifteen-year sentence. The Petitioner filed a petition seeking post-conviction relief, alleging that his attorney was ineffective for: (1) failing to explain the lesser-included charge of facilitation of felony murder; (2) denying to the Petitioner the right to testify at his motion hearing; and (3) depriving the Petitioner of his right to a speedy trial. Following a hearing, the post-conviction court dismissed the petition. Finding no error, we affirm the post-conviction court’s judgment.

The defendant, Amanda Jo Goode, appeals from the Knox County Criminal Court's revoking her probation that was ordered for her sentences for solicitation to commit felony murder; two counts of facilitation of especially aggravated kidnapping; and two counts of facilitation of aggravated robbery. The defendant contends that although the trial court was justified in determining that she violated the terms of her probation, it erred by ordering her to serve her sentences in confinement and consecutively to a federal sentence. We affirm the judgment of the trial court.

Agee Gabriel appeals from the Giles County Circuit Court's revocation of his probationary sentence. Alleging myriad procedural and substantive errors, he asks this court to reverse the revocation order. However, we are unpersuaded of error and therefore affirm the lower court.

The petitioner appeals the trial court's dismissal of his petition for writ of habeas corpus. We agree with the habeas court that the petitioner has failed to state a facially valid claim for habeas corpus relief. We affirm the habeas court's dismissal of the petitioner's application for the writ of habeas corpus.

The Appellant, Donnie Moore, appeals from the ruling of the Carroll County Circuit Court, which found that Moore violated the conditions of probation imposed by the Carroll County General Sessions Court. Following a hearing, the general sessions court partially revoked Moore’s probation and ordered him to serve ninety days in jail. Moore appealed to the Carroll County Circuit Court. The circuit court agreed that Moore had violated the terms of his probation and remanded the case to the general sessions court for enforcement of the sentence. On appeal, Moore argues that the circuit court erred by failing to conduct a de novo review of the sentence imposed by the general sessions court and that his sentence was the result of vindictive prosecution. Because the circuit court failed to review Moore’s sentence following revocation of his probation, we remand the case to the circuit court for that limited purpose.

The petitioner, Thomas Jeffrey Perkey, appeals from the denial of his petition for post-conviction relief. The single issue presented for review is whether the petitioner was denied the effective assistance of counsel at trial. The judgment is affirmed.

A jury found the defendant guilty of two counts of reckless homicide, Class D felonies, and one count of especially aggravated robbery, a Class A felony. He contends on appeal that (1) the evidence was insufficient to corroborate the unindicted accomplice's testimony, (2) the trial court erred in refusing to grant a continuance in order to locate a material witness, and (3) he received ineffective assistance of counsel. The evidence is sufficient for any rational trier of fact to have found the essential elements of the offenses beyond a reasonable doubt. Upon consideration of the factors enumerated in State v. Howell, 672 S.W.2d 442, 445-46 (Tenn. Crim. App. 1984), we cannot conclude that the trial court abused its discretion in denying the continuance. The defendant's claim of ineffective assistance of counsel has been waived. We affirm the judgments of the trial court.

I join with the majority in affirming the Defendant’s convictions for first degree felony
murder and aggravated child abuse. I dissent, however, from that portion of the opinion which
concludes that no error occurred in amending the indictment for aggravated child abuse. The result changed the crime from a Class B felony to a Class A felony on the morning of trial.

The Defendant, Latisha Lee Morgan, pled guilty to assault, a Class A misdemeanor. Pursuant to the plea agreement, sentencing was left to the trial judge. After a hearing, the trial judge imposed a sentence of eleven months and twenty-nine days, with sixty days to be served in confinement, and the balance of the sentence to be served on supervised probation. The sole issue in this direct appeal is whether the trial court should have granted the Defendant full probation. We affirm the judgment of the trial court.

The defendant, Lisa Darlene Heck, pled guilty to six counts of forgery and two counts of theft over $1,000. The Sullivan County trial court imposed a four-year sentence of incarceration on one of the theft cases followed by an effective sentence of four years of probation on the remaining convictions. On appeal, the defendant contends the trial court erred in imposing confinement on the theft charge. We affirm the judgments of the trial court; however, we remand for entry of an amended judgment as to one of the forgery convictions based upon a clerical error.

The Defendant, Charles Rice, appeals as of right his conviction for the first degree premeditated murder and first degree felony murder of Emily Branch during the perpetration of a rape. A Shelby County jury found the Defendant guilty of first degree premeditated murder and of first degree felony murder. The trial court merged the convictions into one count of first degree murder. Following a sentencing hearing, the jury found that the proof supported three aggravating circumstances beyond a reasonable doubt: the Defendant had previously been convicted of a violent felony offense, see Tennessee Code Annotated section 39-13-204(i)(2); the murder was especially heinous, atrocious, and cruel, see Tennessee Code Annotated section 39-13-204(i)(5); and the murder was committed during the perpetration of a rape, see Tennessee Code Annotated section 39-13-204(i)(7). The jury further determined that these aggravating circumstances outweighed any mitigating circumstances beyond a reasonable doubt, and sentenced the Defendant to death. The trial court approved of the sentencing verdict. In this appeal as of right, the Defendant contends that: (1) the evidence was insufficient to support his convictions; (2) the trial court improperly restricted the Defendant's right to cross-examine one of the State's witnesses; (3) the trial court improperly excluded evidence tending to prove the guilt of another; (4) the trial court erred in refusing to permit the Defendant to impeach his own witness; (5) the trial court erred by refusing to permit the Defendant to sit at the same table as his attorney; (6) the trial court's failure to instruct on the lesser offense of facilitation was error; (7) the trial court's failure to instruct the jury as to the definitions of knowingly and recklessly as to the offense of felony murder was error; (8) the indictment failed to set forth a capital offense; (9) Tennessee's death penalty statutory scheme is unconstitutional; (10) the evidence is insufficient to establish the statutory aggravating circumstances found by the jury; (11) the trial court improperly instructed the jury as to the (i)(2) aggravator; and (12) the sentence of death imposed in this case is disproportionate compared to other capital cases. After reviewing the record and applicable law, we conclude that there are no errors of law requiring that the Defendant's conviction or sentence be reversed. Accordingly, we affirm the jury's verdict and imposition of the sentence of death.

This case involves a dispute between neighbors. The plaintiffs owned a one-acre parcel of property in a rural setting almost completely surrounded by a sixteen-acre parcel of property owned by the defendants. The defendant larger landowners began building structures and storing equipment in an escalating commercial use of their property. The plaintiff small landowners complained to county officials that the defendants' use of their property constituted a zoning violation. The ensuing dispute between the two landowners was marked by the defendants engaging in threatening and intimidating behavior and the plaintiffs repeatedly complaining to authorities and incessantly documenting and videotaping the defendants' activities. Finally, the plaintiffs sued the defendants for, among other things, malicious harassment, outrageous conduct, civil conspiracy, and malicious prosecution. The trial court found in favor of the plaintiffs on the malicious prosecution claim but declined to award punitive damages. The trial court dismissed the remaining claims. The plaintiffs appeal. We affirm the dismissal of the plaintiffs' claims of malicious harassment and civil conspiracy. We reverse the dismissal of the plaintiffs' claim for outrageous conduct, finding that the defendants' behavior rose to the level of outrageous conduct, and remand for an award of damages on this claim. Finally, we reverse the denial of an award of punitive damages on the plaintiffs' malicious prosecution claim.

The defendant pled guilty to violation of a motor vehicle habitual offender ("MVHO") order, a Class E felony, in exchange for a one-year sentence in the Department of Correction. With the permission of the trial court and the State, he sought to reserve as a certified question of law whether the expiration prior to his offense of the three-year time period specified in the order declaring him a MVHO precluded his prosecution for the offense. Because we conclude that the defendant failed to meet the requirements for properly reserving a certified question of law pursuant to Tennessee Rule of Criminal Procedure 37(b)(2), we dismiss the appeal.

Following a jury trial, Defendant, J. D. Jones, was convicted of attempted second degree murder, a Class B felony, and the unlawful possession of a weapon, a Class C misdemeanor. At the conclusion of Defendant's sentencing hearing, the trial court sentenced Defendant to ten years for the attempted second degree murder conviction and thirty days for the misdemeanor conviction. The trial court ordered Defendant's sentences to run concurrently. On appeal, Defendant argues (1) that the evidence was insufficient to support his convictions; (2) that the prosecution engaged in improper conduct during Defendant's cross-examination; (3) that the trial court erred in failing to order a gunshot residue test of the samples taken from Defendant's hands; (4) that the trial court erred in not considering Defendant's health as a mitigating factor in determining Defendant's sentence; and (5) that the trial court erred in its instruction to the jury on the mens rea element of the offense of attempted second degree murder. After a thorough review of the record in this case, we affirm the judgments of the trial court.

Defendant, Andrew Neal Davis, was indicted on one count of first degree premeditated murder, one count of first degree felony murder, and one count of aggravated child abuse of a child under the age of eighteen. Defendant’s first jury trial ended in a mistrial. On the first day of the second trial, the trial court granted the State’s motion, over Defendant’s objection, to amend count three of the indictment, aggravated child abuse, to substitute the words “under six years of age” for “under eighteen years of age.” At the conclusion of his second jury trial, Defendant was convicted of one count of first degree felony murder and one count of aggravated child abuse of a child under the age of six. Prior to the jury’s verdict, the State entered a nolle prosequi as to count one of the indictment, first degree premeditated murder. The trial court sentenced Defendant to life imprisonment with the possibility of parole for the felony murder conviction. Following a sentencing hearing, the trial court sentenced Defendant to twenty-two years imprisonment for the aggravated child abuse conviction as a Range I offender and ordered the sentence for aggravated child abuse to run concurrently with Defendant’s life sentence. Defendant does not appeal his sentence for aggravated child abuse. Defendant appeals his convictions alleging (1) that the evidence is insufficient to support Defendant’s convictions for first degree felony murder and aggravated child abuse beyond a reasonable doubt; (2) that the trial court erred in allowing the State to introduce autopsy photographs of the victim; (3) that the trial court erred in permitting the State’s expert witness, Dr. Ellen Clayton, to offer opinions outside her area of expertise; (4) that the trial court erred in allowing Dr. Bruce Levy to testify as a rebuttal witness; (5) that the State’s improper cross-examination of Dr. Charles Harlan at Defendant’s first trial which led to Dr. Harlan’s refusal to testify at Defendant’s second trial resulted in a denial of Defendant’s due process rights; and (6) that the trial court erred in allowing count two of the indictment, aggravated child abuse, to be amended on the day of trial to reflect that the victim was under the age of six. After a thorough review of the record and the arguments and briefs of counsel, we affirm the judgments of the trial court.

The defendant, Ricky Allen Frazier, entered pleas of guilt to possession of Oxycodone, a Class A misdemeanor; possession of more than one-half ounce of marijuana for resale, a Class E felony; manufacturing marijuana, a Class E felony; possession of drug paraphernalia, a Class A misdemeanor; possession of open title, a Class C misdemeanor; violation of the registration law, a Class C misdemeanor; speeding, a Class C misdemeanor; and maintaining a dwelling where a controlled substance is used or sold, a Class D felony. The trial court imposed an effective sentence of six years. As a part of the plea agreement, the defendant reserved a certified question of law under Rule 37(b)(2)(i) of the Tennessee Rules of Criminal Procedure. The single question presented for review is whether the search and seizure of the defendant and his vehicle violated the Fourth Amendment to the United States Constitution and Article 1, Section 7 of the Tennessee Constitution. The judgments are affirmed.

Mrs. Burton and Mr. Fine had an automobile accident. Both sides claimed the accident was caused by the other's fault. Mr. Fine settled his claim with Mrs. Burton's liability carrier and gave Mrs. Burton a general release. Mrs. Burton's claim proceeded to trial and she asserted that the release waived Mr. Fine's defense of comparative fault. The trial judge held that it did not and approved the jury's verdict assessing the greater fault to Mrs. Burton. We affirm. We also affirm the amount of discretionary costs awarded to Mr. Fine.

I concur in the results reached by the lead opinion but write separately to amplify some of my concerns. The prosecution has placed the conviction for aggravated child abuse of a child under the age of six in peril through mistakes, inadvertence, or neglect. There exists no evidence of intentional misconduct on the part of the District Attorney General’s office. I hasten to add that this District Attorney General’s office is not an abuser of the power or processes used to prosecute crimes in its jurisdiction. Although I have voted to affirm this conviction, I feel I must add a word of warning to others who may wish to rely upon my decision. At first glance, the practice of amending an indictment without the defendant’s consent at such a late date is looked upon with disfavor. The practice suggests that someone was inattentive to the process and comes dangerously close to violating principles of fundamental fairness. It is akin to changing the rules in the middle of the game, a gamewhich is played by professionals in which inches determine the winner and loser. This competent defense counsel did not appear shaken or surprised by the State’s amendment. Indeed, I have determined trial counsel’s trial strategy was not changed in the least. That is the main reason I have chosen to affirm this conviction. However, I am mindful of the time trial counsel takes in explaining to a client what has just transpired in court. Imagine explaining to a client that after being put to trial once on what was a Class B felony, the client is now facing a Class A felony with a potential for greater punishment. This could have taken away valuable time which counsel could have used to ready for the trial which was about to begin moments later. The impact could have been great upon a trial counsel that was not as prepared or strong as the one in this case.

The Defendant, Timothy Ellis Ballard, was found to have violated the conditions of his probation by the General Sessions Court of Carroll County. The general sessions court partially revoked the Defendant’s probation and ordered him to serve ninety days in jail. The Defendant appealed. After a hearing, the Carroll County Circuit Court agreed that the Defendant had violated the terms of his probation and remanded the case to the general sessions court  for enforcement of the sentence. In this appeal, the Defendant argues that the circuit court erred by failing to conduct a de novo review of the sentence imposed by the general sessions court and that his sentence was the product of vindictive prosecution. Because the circuit court failed to address the sentencing options following probation revocation, we remand the case to the circuit court for that purpose.