APPELLATE COURT OPINIONS

This appeal involves a patron at a Nashville night spot who was seriously injured by a broken glass tray left unattended on a table. In addition to the laceration on his leg, the patron fell and hit his face against the floor. The patron later filed suit against the night spot in the Circuit Court for Davidson County seeking damages not only for the laceration of his leg but also for internal derangement of his temporomandibular joint caused by his fall. The night spot conceded its negligence, and, after conducting a bench trial on the question of damages, the trial court awarded the patron $8,937.00 for his medical expenses, pain and suffering, and loss of enjoyment of life. On this appeal, the patron takes issue with the trial court's refusal to award him $1,133.00 in medical expenses and with the amount of the award for pain and suffering and loss of enjoyment of life. We have determined that the trial court lacked any basis for declining to award the patron all his medical expenses and that the evidence does not preponderate against the award for pain and suffering and loss of enjoyment of life.

The defendant appeals from jury-trial convictions for multiple counts of rape of a child, rape, incest, contributing to the delinquency of a minor, and attempted rape. In this appeal, the defendant challenges the sufficiency of the evidence related to his rape and contributing to the delinquency of a minor convictions, alleges that the trial court committed reversible error in failing to sever the charged offenses, and complains that his effective 80-year sentence is excessive. Based on our review, we find insufficient evidence to support the rape convictions, dismiss those convictions without prejudice to further prosecution on lesser-included offenses, reverse one conviction of contributing to the delinquency of a minor and dismiss that charge, and remand for modification of the defendant's sentences on the remaining convictions.

The defendant appeals from jury-trial convictions for multiple counts of rape of a child, rape, incest, contributing to the delinquency of a minor, and attempted rape. In this appeal, the defendant challenges the sufficiency of the evidence related to his rape and contributing to the delinquency of a minor convictions, alleges that the trial court committed reversible error in failing to sever the charged offenses, and complains that his effective 80-year sentence is excessive. Based on our review, we find insufficient evidence to support the rape convictions, dismiss those convictions without prejudice to further prosecution on lesser-included offenses, reverse one conviction of contributing to the delinquency of a minor and dismiss that charge, and remand for modification of the defendant's sentences on the remaining convictions.

This appeal arises from the trial court’s decision to award custody of the parties’ minor children to third party custodians. After finding each parent unfit, the chancellor awarded custody of the daughter to the mother’s aunt and the son was awarded to an unrelated third party. Parenting time was established every first and second weekend with the third party custodians having the third weekend. Holiday parenting time was also included. Most importantly the siblings were reunited during these times with their parents. Both parties were ordered to split the child support obligation owed to the third parties. The father filed this appeal. We affirm.

This is the fourth appeal regarding the sale of a 128-acre farm in Giles County. The sellers originally sued the buyers in the Chancery Court for Giles County in 1991, alleging that the buyers had breached the contract by defaulting on their payments. The buyers counterclaimed, asserting that the sellers had breached the contract by failing to provide city water to the property and that the sellers had committed fraud and violated the Tennessee Consumer Protection Act. On the first appeal, this court affirmed the trial court's judgment rescinding the sale but remanded the case with directions to address the question of damages. The case was tried five more times and was appealed twice. In the sixth trial, a jury awarded the buyers $32,444.42. On this the fourth appeal, the buyers take issue with the trial court's exclusion of evidence regarding the sellers' alleged fraud, the jury's calculation of the increased value of the property, and the trial court's refusal to award them prejudgment interest. We affirm the judgment.

The Appellant was convicted of burglary of a building and vandalism in the Criminal Court for Shelby County, and was sentenced to a total of seven years of confinement by the trial court. The sole issue the Appellant raises on appeal is whether sufficient evidence was presented at trial to convict him of the charged offenses of burglary and vandalism. Finding no error, we affirm the judgments of the trial court.

The Defendant, Gerald W. McCullough, was convicted of aggravated sexual battery. This Court affirmed the Defendant's conviction on direct appeal. See State v. Gerald W. McCullough, No. M1999-01525-CCA-R3-CD, 2000 WL 1246432, at *1 (Tenn. Crim. App., Nashville, Aug. 18, 2000). The Defendant was represented at trial by the Public Defender's Office. On direct appeal, the Defendant was represented by Nashville attorney John E. Herbison. After the Defendant's conviction was affirmed on direct appeal, the Defendant filed for post-conviction relief. In this effort, the Defendant was again represented by John E. Herbison. The trial court, on its own motion, conducted an evidentiary hearing with respect to the conflict of interest inherent in Mr. Herbison's representation of the Defendant on post-conviction following his representation of the Defendant on direct appeal. Following the hearing, the trial court ordered Mr. Herbison removed from his representation of the Defendant on post-conviction, and further ordered Mr. Herbison to return the entire retainer fee he had been paid in conjunction with the post-conviction proceeding. The trial court's ruling is now before this Court pursuant to an interlocutory appeal. See Tenn. R. App. P. 9. We affirm the trial court's order removing Mr. Herbison from further representation of the Defendant in this case. We remand the trial court's ruling regarding the refund of Mr. Herbison's fee for further proceedings.

In 1999, the Defendant was placed on judicial diversion for four years after pleading guilty to aggravated assault. In 2001, while the Defendant was on probation for aggravated assault, the Montgomery County Grand Jury indicted the Defendant for attempted first degree murder, attempted robbery, and aggravated kidnapping. In 2002, pursuant to a plea agreement, the Defendant pled guilty to reckless endangerment and nolo contendere to attempted robbery. Following a sentencing hearing, the trial court sentenced the Defendant to eleven months and twenty-nine days incarceration for reckless endangerment and to three years in the Tennessee Department of Correction for attempted robbery. The trial court also revoked the Defendant's judicial diversion probation for the 1999 aggravated assault charge, entered a judgment of conviction, and imposed a sentence of four years in the Tennessee Department of Correction. It ordered that the sentences for reckless endangerment and attempted robbery be served concurrently to each other but consecutive to the sentence for aggravated assault, resulting in an effective sentence of seven years. In this appeal as of right, the Defendant argues that his sentences are excessive and that the trial court erred by denying alternative sentencing. We conclude that the Defendant's sentences are proper and thus affirm the judgment of the trial court.

A Shelby County jury convicted the Defendant of escape, and the Defendant now appeals his conviction. The sole issue on appeal is the sufficiency of the convicting evidence. Concluding that the evidence is legally sufficient to support the Defendant’s conviction, we affirm the conviction.

The State of Tennessee appeals the Knox County Criminal Court’s suppression and exclusion of evidence in the second-degree murder prosecution of Leslie Thurman Mitchell. The evidence consists, first, of the defendant’s statements to law enforcement officers pertaining to the homicide following his arrest for an unrelated matter, and second, of the defendant’s wife’s testimony regarding marital communication pertaining to the alleged crime. We granted the state’s application for interlocutory appeal, see Tenn. R. App. P. 9, and upon review, we reverse the lower court’s rulings.

On March 4, 2002, the Hamblen County Grand Jury returned an indictment against the appellant, James Walter Grooms, charging him with driving with a blood alcohol concentration greater that .10% and child endangerment. After a bench trial the appellant was found guilty as charged, and a sentence was imposed of 11 months and 29 days for each count to be served concurrently. In addition, the trial court ordered the appellant driver's license to be suspended for one year, and he was ordered to attend DUI school. The appellant now challenges the lawfulness of his warrantless arrest and the sufficiency of the evidence supporting his driving under the influence conviction. After a review of the record we affirm the judgment of the trial court.

The appellant, Steven Shelton, was convicted by a jury in the Greene County Criminal Court of theft of property valued $1000 or more but less than $10,000, a Class D felony. The trial court sentenced the appellant as a Range I standard offender to two years six months confinement in the Greene County Jail. On appeal, the appellant argues that the evidence was insufficient to support his conviction and that the trial court erred in denying alternative sentencing. Upon review of the record and the parties’ briefs, we affirm the judgment of the trial court. However, we remand to the trial court for the correction of the judgment of conviction to reflect the fine imposed by the jury.

The petitioner, James P. Hyde, appeals the trial court's denial of his petition for writ of habeas corpus. Because the petitioner has failed to state a claim for habeas corpus relief, the state's motion is granted and the judgment of the trial court is affirmed.

The Appellant, Vance E. Shelton, appeals the dismissal of his petition for post-conviction relief by the Greene County Criminal Court. In 1996, Shelton was convicted of one count of rape of a child and one court of aggravated sexual battery. Shelton collaterally attacks these convictions arguing that he received ineffective assistance of counsel, which resulted in prejudice to his defense. After review, we conclude that Shelton was denied his right to the effective assistance of counsel, as guaranteed by the Sixth Amendment, with respect to his conviction for aggravated sexual battery. With regard to his conviction for rape of a child, we conclude no relief is warranted. Accordingly, Shelton's conviction and sentence for aggravated sexual battery is vacated and remanded for a new trial.

A Davidson County grand jury indicted the petitioner, James Clark Blanton, III, of two counts of especially aggravated robbery, two counts of especially aggravated kidnapping, and one count of coercion of a witness. The petitioner pled guilty to two counts of especially aggravated robbery with an agreement that he would serve two concurrent sentences of fifteen years each at 100%. The petitioner filed a post-conviction petition alleging that he received ineffective assistance of counsel. The post-conviction court held an evidentiary hearing to determine the merits of the petitioner's claim and subsequently denied the petition in a written order. The petitioner now appeals that denial. After reviewing the petitioner's claims and the evidence presented at the post-conviction hearing, we find that none of his allegations merit relief.

The defendant, Johnny D. Roberts, was convicted by a Davidson County Criminal Court jury of aggravated rape and aggravated sexual battery. The trial court merged the defendant's convictions into one conviction for aggravated rape and sentenced him as a Range I, violent offender to twenty-five years in the Department of Correction. The defendant appeals, claiming that (1) the evidence is insufficient to support his convictions, (2) the trial court erroneously admitted into evidence a tape recording and transcript of the victim's 9-1-1 telephone call to the police, (3) the trial court erred by failing to declare a mistrial after the prosecutor commented on the defendant's failure to testify, and (4) the trial court erred by refusing to apply a mitigating factor in sentencing him. We affirm the judgment of conviction.

A Dickson County jury convicted the defendant, Mikel U. Primm, of possession of drug paraphernalia and failure to appear. The trial court sentenced the defendant to serve eleven months and twenty-nine days for his possession of drug paraphernalia conviction and two years for failure to appear conviction, for which he was classified as a Range II multiple offender. The trial court ordered the defendant to serve these sentences concurrently. The defendant now brings this direct appeal challenging his convictions and his sentence, alleging that (1) the evidence introduced at trial is insufficient to support his two convictions, (2) the trial court erroneously denied, within the hearing of the prospective jurors, the defense motion for a continuance, and (3) that the trial court improperly sentenced him by failing to apply several relevant mitigating factors. After a thorough review of the record, we find that none of the defendant's allegations merit relief and therefore affirm the judgments of the trial court.