APPELLATE COURT OPINIONS

The Defendant, Walter R. Smith, Jr., was convicted by a jury of five counts of child rape. Following a sentencing hearing, the trial court imposed an effective sentence of forty years. In this direct appeal, the Defendant challenges the sufficiency of the evidence and his sentences. We affirm the Defendant's five convictions for child rape. The trial judge erred by failing to state on the record the facts that support the imposition of consecutive sentences. However, the record clearly shows that consecutive sentencing was proper. Therefore, we affirm the Defendant's sentences.

The Appellant, Rodney Laron Covington, was convicted by a Davidson County jury of one count of rape of a child and two counts of aggravated sexual battery. Covington received a twenty-year sentence for rape of a child and ten-year sentences for each aggravated sexual battery conviction. The sentences were ordered to be served concurrently. On appeal, he presents three issues for our review: (1) whether testimony by a nurse practitioner violated the holding of State v. Ballard, 855 S.W.2d 557 (Tenn. 1993); (2) whether the State's recitation of the facts supporting the charge of rape of a child was "specific enough to ensure that the jury would reach a unanimous decision" and "sufficiently corresponded to the State's proof;" and (3) whether the proof established that the offense of rape of a child occurred after July 1, 1992, as required for 100% service of the sentence imposed under Tennessee Code Annotated section 39-13-523(b). After review of the record, we find no reversible error. Accordingly, the judgments of the trial court are affirmed.

The Defendant, Shamain Johnson, appeals from the trial court's denial of his petition for writ of habeas corpus. Finding that denial of the petition was appropriate, we affirm the judgment of the trial court.

Plaintiff homeowners sued Defendant pest control operators for negligent misrepresentation and breach of warranty relative to the issuance by the Defendants of a wood destroying insect infestation inspection report pursuant to Tennessee Code Annotated section 62-21-201 to 206. The trial court granted summary judgment to Defendants. Because civil liability is limited by section 62-21-202 and Plaintiffs allege no damages caused by the presence of wood-destroying insects, we affirm the judgment of the trial court.
 

The Appellant, Christopher Robert Smith, was convicted by a Davidson County jury of possession with intent to deliver over 300 grams of cocaine, a class A felony. Following this conviction, he was sentenced to twenty-one years imprisonment. Smith appeals, arguing that (1) the trial court erred by denying his motion to suppress and (2) the trial court improperly admitted evidence of prior criminal conduct. After a review of the record, the judgment of the trial court is affirmed.

The petitioner, Anthony Darrell Hines, convicted of first degree felony murder and sentenced to death for a 1985 homicide, appeals from the denial of his petition for post-conviction relief, alleging that counsel were ineffective at his 1986 trial and 1989 resentencing hearing, that women were excluded from both juries, and that imposition of the death penalty violates his rights under the federal and state constitutions. The post-conviction court denied the petition after an evidentiary hearing. Following our review, we affirm the denial.

The narrow question presented by this appeal is whether Tennessee recognizes the tort of negligent misrepresentation by nondisclosure. While the Sears family’s complaint faces a daunting battle on other fronts, I would not extinguish it at this stage of the proceeding by holding as a matter of law that a professional person cannot supply the false information required by Restatement (Second) of Torts § 552 (1977) by silence.

 

Upon his plea of guilty, the Defendant was convicted of DUI. In this appeal, he attempts to present two certified questions of law pursuant to Tennessee Rule of Criminal Procedure 37(b)(2)(i). Because we conclude that this appeal does not properly present certified questions of law, we dismiss the appeal.

Following a bench trial appellant, Jason White, was found guilty of D.U.I. Second Offense in violation of T.C.A. 55-11-401. He was sentenced to eleven months and twenty-nine days with incarceration for forty-five days followed by probation for the balance of the sentence. The appellant appeals, contending that the evidence was not sufficient for a D.U.I. Second Offense conviction. After a review of the record we affirm the judgment of the trial court.

I write separately to explain why I am concurring in results only in this case. The record reflects that Defendant’s counsel adamantly asserted that aggravated assault was a lesser-included offense of attempted first degree murder. Just as adamantly, the State argued that aggravated assault was not a lesser-included offense of attempted first degree murder under our supreme court’s decision in State v. Burns, 6 S.W.3d 453 (Tenn. 1999). The record also reflects that while the trial court had reservations about the appropriateness of charging aggravated assault as a lesser-included offense, it was ultimately persuaded to do so by arguments of Defendant’s counsel. Counsel’s conduct may or may not be grounds for relief to Defendant in a post-conviction proceeding, but that must be decided at a later hearing on a later date.

While I concur in the majority’s reversal of Defendant Mack’s conviction based upon insufficient evidence of constructive possession of cocaine, I respectfully dissent from the portion of the majority opinion that holds that the search warrant did not sufficiently describe the premises to be searched, because it omitted the street address, to meet constitutional standards. I disagree with the majority’s conclusion that Bostic, 898 S.W.2d 242, does not apply under the facts of this case because “[w]e are not confronted herein with an ambiguous description, i.e., one that is susceptible to multiple interpretations, but rather the omission of important details in the description.” I believe warrant, which was cured by Detective Tutor’s knowledge of the location to be searched. To hold otherwise effectively ignores the precedent established in Bostic.

These consolidated claims against the State of Tennessee ("State") arise out of an automobile accident which resulted in the death of James R. Madison and personal injury to Mary E. Madison, Kenneth R. Madison, and Wilma J. Madison (collectively referred to as "Claimants"). The State filed a motion for summary judgment which the Claims Commission ("Commission") granted based primarily on Claimants' failure to file a timely response. The Commission later set aside its order granting the State's summary judgment motion and ordered Claimants to file a response to that motion no later than March 19, 2003. Claimants filed their response to the motion for summary judgment on March 18, 2003. On May 14, 2003, apparently acting under the misapprehension that Claimants still had not responded to the motion for summary judgment, the Commission dismissed the claims based on Claimants' violation of its previous order directing them to respond. We vacate the dismissal of these claims and remand for further proceedings.

The defendant appeals his conviction for second degree murder and the sentence of twenty-five years. After review, we conclude that the restrictions placed on the defendant's cross examination of the witness were within the discretion of the trial court. Further, we affirm the conviction and sentence imposed.

The petitioner, Alonzo Leonardo Gayden, appeals from the Rutherford County Circuit Court's denying him post-conviction relief from his 2001 conviction for theft of property valued at $1,000 or more, a Class D felony. He contends that he received the ineffective assistance of counsel. We affirm the trial court.

The defendant filed a delayed appeal, alleging error: (1) in denying the defendant the opportunity to file an amended motion for new trial; (2) in the failure to amend the indictment for attempted first degree murder to aggravated assault; (3) in the failure of the indictment for evading arrest to contain statutory language; and, (4) in admitting the defendant’s confession in violation of an in limine order during the second phase of a bifurcated trial. We conclude that no reversible errors were attendant and affirm the convictions.

The defendants appeal their convictions of possession of more than 0.5 grams of cocaine with intent to deliver. The defendants allege error in the trial court’s failure to suppress evidence seized pursuant to a search warrant and denial of their motions for judgment of acquittal. Upon review, we reverse the failure to suppress the search warrant and reverse and dismiss the convictions of both defendants. The conviction of Stacy Mack is reversed due to insufficiency of the evidence, and Martress Shaw’s conviction is reversed due to insufficiency of evidence after suppression of the search warrant.

This is a legal malpractice case. The client filed suit in federal court against a municipality for the
death of her husband under the Governmental Tort Liability Act and U.S.C. § 1983. The federal
court dismissed the GTLA claim but retained the §1983 claims. The client dismissed her attorneys, hired new counsel and filed the GTLA claim in state court. The state court dismissed the GTLA claim because, while the GTLA claim was pending in federal court, the applicable statute of limitations expired. The client sued her original attorneys for malpractice. Shortly thereafter, the client settled the remaining § 1983 claims against the municipality. The defendant attorneys filed a motion for summary judgment in the malpractice case, arguing that the settlement with the municipality on the §1983 claims mandated dismissal of the legal malpractice claim. The trial court granted the summary judgment motion. The client appealed. We reverse, holding that the damages sought in the legal malpractice lawsuit are separate and distinct from the damages sought in the underlying lawsuit, and therefore settlement of the underlying lawsuit does not shield the former attorneys from liability.
 

The petitioner, Stacey Baldon, appeals from the trial court's denial of post-conviction relief. The issues presented for review are whether the petitioner was denied the effective assistance of counsel and whether the guilty pleas were knowingly and voluntarily entered. The judgment is affirmed.

The defendant was convicted of aggravated rape and aggravated robbery. He contends on appeal that 1) the evidence was insufficient to support the convictions, and 2) the trial court erred in instructing the jury as to aggravated rape. The judgment for aggravated robbery is affirmed. We conclude that a constructive amendment of the indictment for aggravated rape occurred because the jury was permitted to convict the defendant based on an element different from that which was charged or included within the indictment. Accordingly, the judgment for aggravated rape is reversed.

The defendant, Levar Gray, was convicted of two counts of aggravated robbery and two counts of aggravated kidnapping. The trial court imposed sentences of twelve years for each of the four offenses. Because the trial court ordered partially consecutive sentencing, the effective sentence is twenty-four years. In this appeal of right, the defendant contends that the evidence is insufficient to support the convictions and that the sentence is excessive. Because the record does not support the imposition of maximum sentences for each conviction and because consecutive sentences were not warranted, the judgments must be modified to reflect concurrent sentences of ten years for each conviction.

The petitioner, Floyd Lee Perry, Jr., filed a petition for post-conviction relief in the Obion County Circuit Court. In his petition, the petitioner raised several issues, with his two chief complaints being that the trial court erred by failing to charge the jury on the lesser-included offenses of felony murder and that trial counsel was ineffective. Subsequent to an evidentiary hearing, the postconviction court dismissed the petition and the petitioner timely appealed. Upon review of the record and the parties’ briefs, we affirm the judgment of the post-conviction court.

A Sullivan County Criminal Court jury convicted the defendant, Gary Allen Larkins, Jr., of attempted aggravated assault, a Class D felony; resisting arrest, a Class B misdemeanor; and disorderly conduct, a Class C misdemeanor, and the trial court sentenced him to concurrent sentences of seven years, six months, and thirty days, respectively. The defendant appeals, claiming that the evidence is insufficient to support his convictions. We affirm the defendant’s convictions but remand the case for entry of a corrected judgment for the attempted aggravated assault.