APPELLATE COURT OPINIONS

The petitioner, Clifford Ward, Jr., appeals the Davidson County Criminal Court's denial of his petition for post-conviction relief from his guilty pleas to two counts of rape of a child, two counts of aggravated sexual battery, and effective twenty-five-year sentence. He contends that he received the ineffective assistance of counsel because his trial attorney failed to investigate his case. We affirm the trial court.

Defendant, Brandon D. Forbes, was indicted on one count of aggravated robbery and one count of theft. Following a jury trial, defendant was convicted of both counts. The trial court merged the two counts into a single count of aggravated robbery. Following a sentencing hearing, defendant was sentenced to serve ten years. In this appeal as of right, defendant challenges the sufficiency of the evidence and argues that his sentence was excessive. After a careful review of the record, we affirm the judgment of the trial court.

The petitioner appeals the trial court’s finding that the petitioner received effective assistance of counsel both before and during trial. We affirm the denial of the post-conviction relief.

The defendant was convicted by a Hamilton County Criminal Court jury of four counts of attempted first degree murder, Class A felonies; aggravated arson, a Class A felony; and false imprisonment, assault, and theft under $500, all Class A misdemeanors. He was sentenced by the trial court to an effective sentence of twenty-two years and six months in the Department of Correction. Following the denial of his motion for a new trial, the defendant filed a timely appeal to this court, raising the following issues: (1) whether the evidence was sufficient to support his convictions for aggravated arson and attempted first degree murder; (2) whether the trial court erred in denying his motion to suppress his statements to law enforcement officers; (3) whether the trial court erred in allowing the State to call a rebuttal witness during the presentation of its case in chief; (4) whether the trial court properly sentenced the defendant for his attempted first degree murder and aggravated arson convictions; and (5) whether the cumulative errors prevented the defendant from receiving a fair trial. Based on our review, we affirm the judgments of the trial court, but remand for entry of a corrected judgment for the defendant's assault conviction in Count 2 of Case No. 234375.

These consolidated cases present two separate factual situations involving alleged liability of the state under the Tennessee Claims Commission Act, Tennessee Code Annotated section 9-8-301, et seq., for dangerous conditions existing on two separate highways. In both cases the State asserted in defense discretionary function immunity. Because this defense is central to both cases, the Claims Commission consolidated the cases for consideration of the applicability of discretionary function immunity. In an en banc order, the Commission, construing Tennessee Code Annotated section 9-8-307(d) and cases based upon that section, overruled the State’s motions for summary judgment. We hold that under the plain and unambiguous provisions of Tennessee Code Annotated section 9-8-307(d) the State is not entitled to assert  discretionary function immunity in actions under the Tennessee Claims Commission Act and affirm the judgment of the Claims Commission.

The appellant, Clifford James Engum, pled guilty in the Madison County Criminal Court to vehicular homicide by recklessness and aggravated assault with a deadly weapon, to-wit: a motor vehicle. Pursuant to the plea agreement, the appellant received a total effective sentence of eight years incarceration in the Tennessee Department of Correction. The trial court ordered the appellant to serve one year of his sentence in confinement and the remainder of his sentence on probation. On appeal, the appellant contests the trial court's denial of full probation and the eight-year suspension of his driver's license. Upon review of the record and the parties' briefs, we remand to the trial court for correction of the judgment of conviction for vehicular homicide to reflect that the appellant's driving privileges in the state of Tennessee are revoked for a period of eight years. The judgments of the trial court are affirmed in all other respects.

The Appellant, James Q. Wilkerson, appeals the decision of the Wilson County Circuit Court sentencing him to three years confinement in the Department of Correction. On appeal, Wilkerson contends that the trial court erred in denying an alternative sentence. After review, we conclude that the sentencing proof is insufficient to overcome the statutory presumption that Wilkerson is a favorable candidate for alternative sentencing. Accordingly, we modify Wilkerson's sentence to reflect a sentence of split confinement.

The Defendant, James E. Taylor, petitioned for post-conviction relief from his convictions of aggravated assault, aggravated burglary, and aggravated kidnapping. He alleged that he received ineffective assistance of counsel. After a hearing, the trial court denied relief, and the Defendant now appeals. We affirm the judgment of the trial court.

A Metro Nashville police officer stopped the appellant for improper mounting of tags on his vehicle and drinking a beer while driving in downtown Nashville. After performing poorly on the field sobriety test, the police officer arrested the appellant and asked him to take a breathalyzer test. After taking the test, the officer determined the appellant was intoxicated and arrested him for Driving Under the Influence (DUI). The appellant now appeals arguing that the evidence was insufficient to support his conviction and the State did not meet the requirements under State v. Sensing, 843 S.W.2d 412 (Tenn. 1992), for introducing the breathalyzer test. We conclude that there is sufficient evidence to support the conviction and that the Sensing requirements are not applicable to the case at hand because the results of the breathalyzer test were not introduced into evidence. We also hold that the arresting officer's testimony concerning the appellant's behavior while taking the breathalyzer test was admissible in evidence against the appellant. Therefore, we affirm the judgment of the trial court.

The petitioner, Jack Jay Shuttle, appeals the Sullivan County post-conviction court's denial of his petition to compel testing of evidence pursuant to the Post-Conviction DNA Analysis Act. Upon review of the record and the applicable law, we reverse the judgment of the post-conviction court.

The defendant, pharmacist Richard Robinson, pled guilty to five counts of the unlawful disbursement of a controlled substance. The Sullivan County Criminal Court imposed an effective sentence of four years probation. On appeal, the defendant contends (1) the trial court erred in denying judicial diversion, and (2) the trial court improperly restricted his employment as a pharmacist as a condition of probation. Upon review of the record and the applicable law, we affirm the trial court's denial of judicial diversion but vacate the trial court's imposition of the probationary condition.

This appeal arises from a dispute over proceeds from a failed television series. Appellants contracted with the owner of the copyright to handle distribution of the series for which they were to receive a percentage of profits. Owner of the copyright also contracted with Appellees to secure funding for the series with Appellees' obligation limited to $1.6 million in expenses for the series. To that end, Appellees paid vouchers submitted by owner of the copyright, which included payment of agents fees to Appellants. When the $1.6 million cap was reached, Appellees stopped paying vouchers. The owner of the copyright subsequently filed for bankruptcy. Appellants sued Appellees and alleged numerous causes of action in both contract (i.e., oral contract, answering for debt of another, partial performance, promissory estoppel, and The Statute of Frauds) and tort (i.e., fraud, promissory fraud, negligent misrepresentation, tortious interference with contract, interference with business relationship, concert of action/joint enterprise). The trial court granted summary judgment to Appellees on all causes of action. Appellants appeal. We affirm.

The appellant, Floyd “Butch” Webb, was convicted by a Rhea County jury of one count of aggravated sexual battery, a Class B felony; two counts of sexual battery, Class E felonies; and four counts of child abuse, Class A misdemeanors. Following a sentencing hearing, the trial court imposed a total effective sentence of twelve years to be served in the Tennessee Department of Correction. On appeal, the appellant contends that (1) the trial court erred by admitting evidence of a fresh complaint by a child victim; (2) the trial court erred by allowing a witness to testify about medical records of which she was not the custodian; and (3) the sentence imposed by the trial court was excessive. Upon review of the record and the parties’ briefs, we affirm the judgments of the trial court.

I concur in the results reached and most of the reasoning used in the majority opinion. However, I respectfully disagree with its views regarding Kathy Spada’s testimony resulting from her review of the victim’s purported medical records. I believe that her testimony regarding her review of the records, the basic contents of the records, and her “opinion” based upon her review of the records should have been excluded from the evidence. As the majority opinion notes, the records in question are not part of the record on appeal. The state’s comments at trial and Ms. Spada’s testimony indicate that the records were ostensibly regarding a physical examination of the victim when she was three years old. The parties stipulated that the records were from either a Dayton doctor or hospital with whom Ms. Spada was not affiliated and for whom she was not a proper custodian of the records.

The petitioner, Joseph Martin Thurman, appeals the dismissal of his petition for post-conviction relief based upon its filing beyond the statute of limitations. He argues that due process considerations tolled the limitations period of Tennessee Code Annotated section 40-30-102(a) and that the trial court erred in dismissing the petition without an evidentiary hearing. Because the time for filing the petition cannot be tolled under the circumstances presented in this case, we conclude that the petition for post-conviction relief was untimely and we affirm the decision of the trial court.

The defendant, Timothy P. Wilmoth, pled guilty to possession of less than .5 grams of cocaine and misdemeanor evading arrest. The trial court imposed concurrent sentences of six years and eleven months, twenty-nine days, respectively. All but thirty days was suspended. Later, the defendant's probation was revoked and he was ordered to serve the sentence in the Department of Correction. In this appeal as of right, the defendant concedes a violation of the terms of his probation, but asserts that he should have been returned to probation or placed on community corrections. The judgment of the trial court is affirmed.

The defendant, Douglas Marshall Mathis, was convicted of first degree murder and sentenced to life imprisonment. In this appeal, he contends: (1) that the evidence is insufficient; (2) that the trial court erred by giving an irrelevant definition of "knowing" as a part of the instructions to the jury; (3) that the prosecutor's comments during closing argument were improper; (4) that he was denied the right to a fair and impartial jury; and (5) that the trial court erred by admitting certain evidence. Because the state's closing argument was improper and the error cannot be classified as harmless, the judgment of the trial court is reversed and the cause is remanded for a new trial

This matter is before the Court upon the State’s motion to affirm the judgment of the trial court pursuant to Rule 20, Rules of the Court of Criminal Appeals. The Petitioner, Johnny Marvin Henning, appeals the trial court's denial of his petition for habeas corpus relief. Finding that the Petitioner has failed to assert a ground entitling him to habeas corpus relief, this Court affirms the judgment of the trial court dismissing the petition.

The appellant filed a petition for common law writ of certiorari seeking judicial review of a decision of the Board of Paroles to deny him parole. The trial court dismissed the petition as untimely filed. We affirm.

The defendant was convicted of robbery and driving while a habitual motor vehicle offender. The defendant contends on appeal that the trial court erred in 1) denying his constitutional right to the assistance of counsel, and 2) conducting the trial in absentia while the defendant was not represented by counsel. We conclude that once elbow counsel has been appointed, and the defendant is absent voluntarily or through removal because of behavior, the trial court should require elbow counsel to represent the absent defendant. Under the facts of this case, the trial court erred in not requiring elbow counsel to proceed to represent the defendant when he was removed from the courtroom. Accordingly, the judgments of conviction are reversed and remanded for a new trial.

A Davidson County jury convicted the Petitioner, Reginald Garner Brown, of one count of first degree felony murder, one count of especially aggravated kidnapping, one count of aggravated robbery and one count of aggravated burglary. The trial court sentenced the petitioner as a Range I offender to consecutive terms of life with the possibility of parole for murder, twenty-five years for especially aggravated kidnapping, twelve years for aggravated robbery and six years for aggravated burglary. On direct appeal, this Court affirmed the convictions, and the Tennessee Supreme Court denied the Defendant's application for permission to appeal. The Petitioner then sought post-conviction relief in the trial court, alleging that he was denied effective assistance of counsel. Following a hearing, the post-conviction court dismissed the petition. Finding no error, we affirm the post-conviction court's judgment.

This case involves the enforcement of a non-compete agreement. Plaintiff filed suit to enjoin Defendant from practicing medicine in violation of a covenant not to compete entered into by the parties. The trial court granted Plaintiff's application for a temporary injunction from which Defendant sought this interlocutory appeal. We reverse in part, affirm in part, and remand.

The Appellant, Lester Arnold Clouse, was convicted by a White County jury of five counts of setting fire to land, two counts of aggravated assault, and one count of resisting arrest. These convictions resulted in an effective sentence of twenty-one years, eleven months, and twenty-nine days. On appeal, Clouse raises three issues for our review: (1) whether the evidence was sufficient to convict him of setting fire to land and aggravated assault; (2) whether the trial court erred by denying his motion for a mistrial after a co-defendant invoked his Fifth Amendment privilege and testified before the jury that he had been threatened; and (3) whether the jury instruction regarding circumstantial evidence was proper. After review of the record, we conclude that the errors resulting from the co-defendant's invocation of his Fifth Amendment privilege at trial affected the jury's verdict. Accordingly, we reverse the judgment of the trial court and remand the case for a new trial.

The Defendant, Mike Lafever, was indicted on three counts of theft. A jury subsequently convicted him of one count of theft over $10,000, a Class C felony, and one count of theft over $1,000, a Class D felony. The jury assessed fines of $10,000 and $5,000 for these offenses, respectively. The jury acquitted him of the other count. The trial court sentenced the Defendant to five and one-half years for the Class C felony, and to three and one-half years for the Class D felony. The sentences were ordered to run concurrently and to be served on community corrections. In this direct appeal, the Defendant argues that the trial court erred in refusing to admit a statement he made to the police; erred in refusing to instruct the jury on mistake or ignorance of fact; that the evidence is not sufficient to support his convictions; that his sentences are excessive; and that the trial court should have waived his fines. We affirm the judgments of the trial court.

The defendant was convicted by a Henderson County Circuit Court jury in consolidated cases of aggravated robbery, a Class B felony, and especially aggravated robbery, a Class A felony. He was sentenced by the trial court as a Range I, standard offender to eight years for the aggravated robbery conviction, and as a violent offender to twenty years for the especially aggravated robbery conviction, with the sentences ordered to be served concurrently, for an effective sentence of twenty years in the Department of Correction. He raises essentially one issue on appeal: whether the trial court erred in denying his pretrial motion to suppress his statement to police. Following our review, we affirm the judgments of the trial court.