APPELLATE COURT OPINIONS

The defendant, Donald C. McCary, was convicted in two separate trials of two counts of aggravated sexual battery, one count of sexual battery, and four counts of statutory rape. There were two minor victims. The aggravated sexual battery convictions related to one victim and the remaining offenses were against the other. By consent of the state and the defendant, this court consolidated the two appeals during oral argument. The defendant claims (1) that the state failed to make a proper election of offenses at the close of the proof; (2) that there was a fatal variance between the indictments and the proof offered at both trials; (3) that the trial court erred by the admission of certain of the evidence; (4) that the trial court erred by denying his motion to suppress evidence seized during the search of his office; (5) that the trial court erred by refusing to suppress certain statements made during the search and after his arrest; (6) that the prosecutor's comments during closing argument were improper; (7) that the trial court erred by failing to declare the defendant incompetent to stand trial; (8) that the trial court erred by permitting amendment of the indictments; (9) that the cumulative effect of the errors denied him the right to a fair trial; and (10) that the trial judge should have recused himself from the hearing on the motions for new trial. The convictions on each count of aggravated sexual battery are affirmed. The remaining convictions are reversed and remanded for a new trial.

This case is before this court upon remand from the Supreme Court of Tennessee. In our original opinion we affirmed defendant's conviction for first degree murder in perpetration of aggravated child abuse but remanded to the trial court for a new sentencing hearing. In our original opinion we examined numerous issues, including whether the trial court erred in failing to instruct the jury on the lesser-included offenses of reckless homicide and criminally negligent homicide. We concluded the failure to charge these offenses constituted harmless error. The remand from the Supreme Court of Tennessee indicates we should reconsider the lesser-included offense issue in light of State v. Locke, S.W.3d , 2002 Tenn. LEXIS 474 (Tenn. Nov. 14, 2002). We now conclude that the trial court's failure to instruct the jury on the lesser-included offenses of reckless homicide and criminally negligent homicide constitutes reversible error.

Jermaine Antonio and James Lee Ivory, along with their relative David, faced numerous weapons and narcotics offenses arising out of Davidson County on various dates. After the trial court severed five counts from one of the indictments, a jury trial was conducted to determine whether: 1) Jermaine Ivory sold .5 grams or more of a substance containing cocaine on March 16, 1998; 2) Jermaine Ivory sold 26 grams or more of a substance containing cocaine on March 30, 1998; and 3) Jermaine, James, and David Ivory conspired to sell 26 grams or more of a substance containing cocaine between March 1st and April 30th of 1998. Upon hearing the proof, the jury convicted Jermaine and James Ivory as charged but acquitted David Ivory. Additionally, James Ivory later pled guilty to two counts from the above-referenced indictment and two from another. In doing so, this defendant acknowledged his guilt on two counts of possession with intent to sell over one half ounce (14.175 grams) of marijuana, one count of felony possession of a firearm, and one count of possession with intent to sell over .5 grams of cocaine. Following separate sentencing hearings, Jermaine Ivory received an effective sentence of thirty-six years while James Ivory received an effective sentence of twenty years. Both individuals were also found to be multiple offenders. Thereafter, Jermaine Ivory unsuccessfully moved for a new trial; however, James Ivory filed no new trial motion. Both now bring this appeal essentially raising the same issues: (1) whether the State presented sufficient evidence to support the aforementioned conspiracy convictions; (2) whether the trial court erred in refusing to suppress evidence; and (3) whether the trial court imposed excessive sentences. After reviewing the record and applicable authorities, we find that the judgment of the trial court must be affirmed.

The defendant, Michael John Stitts, appeals as of right his conviction by a jury in the Madison County Circuit Court for aggravated assault, a Class C felony. He received a sentence of nine years in the Department of Correction as a Range II, multiple offender. He contends (1) that the evidence is insufficient to support his conviction and (2) that the trial court should have required the state to elect between two counts of aggravated assault. We affirm the judgment of conviction.

In this medical malpractice case, Plaintiff appeals summary judgment based upon the failure of Plaintiff's medical expert to establish the requisite familiarity with the standard of care in the community in which Defendant practices or in a similar community. We affirm the action of the trial court.

A high-profile high school football coach and athletic director filed a defamation and false light invasion of privacy claim against the athletic association his school belonged to and other defendants. The Circuit Court of Davidson County granted summary judgment to the defendants because it found no evidence from which a jury could infer malice. We affirm.

The petitioner has been sentenced to death and now appeals as of right the judgment of the Davidson County Criminal Court denying his petition for post-conviction relief. The petitioner argues: (1) the post-conviction court erred in denying his ex parte request for funds for expert services; (2) the post-conviction court erred in denying his request for a continuance; and (3) he did not receive effective assistance of counsel during his resentencing hearing. We affirm the judgment of the post-conviction court.

The petitioner, Montez Antuan Adams, appeals the Madison County Circuit Court's denial of his petition for post-conviction relief. He contends that the trial court improperly determined that he did not sufficiently allege facts to support one of his claims and improperly struck the claim from his amended petition. We remand the case for another evidentiary hearing in order for the petitioner to present evidence regarding the dismissed claim and for the trial court to make appropriate findings of fact consistent with this opinion.

The trial court granted the father's petition to suspend the mother's impending visitation with the parties' 13-year-old daughter. The mother then moved the trial judge to recuse herself from any further involvement in proceedings relating to custody of the child or to visitation. She claimed that an ex parte communication between the father's attorney and the judge prior to the hearing on the father's petition created the appearance of partiality or bias. The judge denied the mother's motion to recuse. We affirm.

The petitioner was originally convicted of first degree murder and attempted second degree murder and sentenced to an effective life term. He now appeals the denial of post-conviction relief, arguing trial counsel denied him the right to testify and ineffectively failed to present closing argument. We affirm the judgment of the post-conviction court.

A Shelby County Criminal Court jury convicted the defendant, Jeffery Connor, of aggravated rape, a Class A felony, and the trial court sentenced him as a Range I, violent offender to twenty-four years in confinement. The defendant appeals, claiming that the evidence is insufficient to support his conviction and that the trial court improperly enhanced his sentence. We affirm the judgment of the trial court.

The appellant, Roger Dale Quillen, was convicted by a jury in the Criminal Court of Sullivan County of aggravated burglary, felony murder, premeditated first degree murder, and simple assault. The trial court merged the murder convictions and sentenced the appellant to an effective sentence of life imprisonment. On appeal, the appellant asserts that he established the affirmative defense of insanity by clear and convincing evidence and, therefore, he should have been found not guilty by reason of insanity. After a careful review of the record and the parties' briefs, we affirm the judgment of the trial court.

Defendant, Sammie Netters, was convicted by a jury of aggravated robbery, and the trial judge sentenced him to twenty years incarceration as a Range II multiple offender. In this appeal, defendant contends that: (1) the evidence was insufficient to sustain his conviction; (2) the trial court erred by denying defendant's motion to suppress his confession; and (3) the trial court erred in failing to instruct the jury on the lesser-included offenses of robbery and theft. After a thorough review of the record, we affirm the judgment of the trial court.

Petitioner, Ronald Troy Agee, appeals the trial court’s denial of his petition for post-conviction relief, in which he alleges ineffective assistance of counsel. Petitioner entered guilty pleas to one count of conspiracy to distribute over 300 pounds of marijuana and one count of possession with intent to deliver over seventy pounds of marijuana and received an effective sentence of thirty-five years. The indictment alleges that the conspiracy, charged in count one, commenced in August of 1997 and continued through December of 1999. In 1998, the legislature amended the law, designating conspiracy to deliver 300 or more pounds of marijuana as a Class A felony offense.  Prior to the enactment of the new statute, the offense was a Class B felony. Petitioner argues that his trial counsel was ineffective in setting out the range of punishment for the offense charged.  Consequently, Petitioner argues, he entered a guilty plea to Class A felony, rather than a Class B felony, and his sentence exceeds the maximum sentence available for a Range II offender of a Class B felony. We conclude that Petitioner received the effective assistance of counsel and that his pleas were entered voluntarily and intelligently. The judgment of the post-conviction court is affirmed.

The petitioner, Lewis V. Hill, appeals the Shelby County Criminal Court's denial of his petition for post-conviction relief, claiming that the trial court erred by determining that he filed his petition outside the statute of limitations. He contends that his petition was not time-barred because it was filed within one year of this court's denying his motion to waive the timely filing of a notice of appeal. We affirm the trial court's dismissal of the petition.

Trial court held that doctrine of collateral estoppel barred Appellant's civil suit against Appellee for damages stemming from an alleged assault where Appellant had previously been convicted of assaulting Appellee during the incident in question. We reverse and remand.

This case is before the Court on an interlocutory appeal pursuant to Rule 10 of the Tennessee Rules of Appellate Procedure.1 In this extraordinary appeal, Appellant asserts that the trial court erred in granting temporary custody of her two children to their paternal grandparents during the pendency of the underlying divorce action. Specifically, she claims that the trial court erred in failing to conduct an evidentiary hearing and in considering only the guardian ad litem’s reports in making its custody determination. Having carefully reviewed the issues raised by the parties, we hold that the trial court erred in basing its decision to change custody solely upon the guardian ad litem’s reports. Accordingly, we reverse the judgment of the trial court awarding custody to the grandparents and
remand the case for proceedings consistent with this opinion.

The defendant, Frankie Donald Releford, brings this direct appeal of his convictions for possession of cocaine with intent to sell or deliver, possession of marijuana, possession of drug paraphernalia, to wit, rolling papers, and destruction of evidence. The trial court sentenced the defendant to serve an aggregate eleven-year sentence. In this appeal, the defendant alleges (1) that the trial court erroneously denied his motion to suppress drugs and drug paraphernalia seized in a search incident to his arrest, (2) that the trial court erroneously allowed a witness to testify regarding the results of two spectrophotometer tests without sufficiently establishing the reliability of those instruments, (3) that the evidence is insufficient to support his convictions, (4) that the trial court erred by refusing to grant his motion for new trial on the basis of newly discovered evidence, and (5) that the trial court improperly sentenced him. After reviewing the record and applicable case law, we find that none of the defendant's allegations merit relief and therefore affirm the judgment of conviction.

Patient filed medical malpractice action against physician alleging negligence in performance of operation procedure and negligence in physician's post-operative care. Jury returned verdict for physician on the issue of negligent post-operative care but deadlocked on the issue of negligence in performance of surgery. Trial court declared a mistrial and entered an order denying physician's motion for entry of final judgment on the issue of post-operative care and ordering a new trial on all of patient's claims. Physician was granted interlocutory appeal. The only issue for review is whether, under the circumstances of this case, a new trial should be confined only to the issues of the physician's negligence in performing the surgery. We affirm and remand.

The defendant pled guilty to two counts of sexual battery by an authority figure and two counts of statutory rape. He received agreed sentences totaling five years. The defendant sought alternative sentencing from the trial court, which was denied. In this appeal, the defendant argues the trial court improperly denied alternative sentencing. We affirm the judgment of the trial court.

This appeal arises from a contempt proceeding against Attorney Andrew J. Shookhoff. The juvenile court held Mr. Shookhoff in contempt for his failure to appear at a review hearing involving his minor client. This appeal ensued. For the following reasons, we reverse.

This appeal arises from the denial of a petition to modify visitation with a minor child. The trial court denied the father's petition, finding that the father failed to show that as a result of a material change in circumstance, his daughter had been harmed or was at risk of substantial harm due to the existing visitation arrangement. The primary issue on appeal is whether the trial court applied the correct legal standard in dismissing the father's petition. For the following reasons, we reverse and remand.

A Shelby County jury convicted the defendant, Gerald Powers, of first degree felony murder and aggravated robbery. He was sentenced to death for the felony murder charge and to a consecutive thirty-year prison sentence for the aggravated robbery charge. The Court of  Criminal Appeals affirmed the conviction and death sentence for the felony murder but reduced Powers’ sentence for the aggravated robbery to twenty years. Thereafter, the case was automatically docketed in this Court pursuant to Tennessee Code Annotated section 39-13-206(a)(1) (1997). We entered an order designating the following issues for oral argument:1 1) whether allowing Powers’ wife to testify violated the confidential marital communications privilege in Tennessee Code  Annotated section 24-1-201(b) (Supp. 1998); 2) whether the trial court erred in excluding evidence and restricting cross-examination indicating that other persons might have had the motive and opportunity to kill the victim; 3) whether the deposition of Margaret York was admissible; 4) whether the evidence was sufficient to establish beyond a reasonable doubt the aggravating circumstance in Tennessee Code Annotated section 39-13-204(i)(6) (Supp. 1996); 5) whether the facts underlying Powers’ prior violent felony convictions were admissible; 6) whether the trial court erred in not allowing the defense to attack the character of the victim at the sentencing hearing; and 7) whether the sentence of death is disproportionate, and all other issues mandated by Tennessee Code Annotated section 39-13-206(c)(1) (1997). Having carefully reviewed these issues and the issue of  identification testimony raised by Powers, we find no merit to his  arguments. Accordingly, we affirm the judgment of the Court of Criminal Appeals.

The defendant appeals his resentencing of 162 years, 11months and 29 days, as excessive. The defendant failed to provide this Court with transcripts of the sentencing hearing, the presentence report, or the guilty plea submission hearing. Therefore, the record is insufficient and incomplete for our review. We affirm the judgments of the trial court.