APPELLATE COURT OPINIONS

The Defendant, John Henry Sparrow, III, was convicted by a jury of attempted especially aggravated kidnapping, and sentenced to twelve years in the Department of Correction. In this direct appeal the Defendant raises three issues: whether the evidence is sufficient to support his conviction; whether
the trial court made an improper comment on the evidence in its instructions to the jury; and whether the trial court erred in failing to instruct the jury on the lesser-included offense of attempted false imprisonment. We affirm the judgment of the trial court.

A Davidson County grand jury indicted the defendant for one count of aggravated kidnapping, one count of aggravated rape, three counts of aggravated assault, and one count of assault. At the close of a jury trial, he stood convicted of aggravated kidnapping, two aggravated assaults, and one simple assault. He subsequently received a sixteen year sentence for the aggravated kidnapping; seven years each for the two aggravated assaults; and eleven months and twenty-nine days for the assault. The trial court also set count one to run consecutively to count five resulting in an effective sentence of twenty-three years.1 The case is presently before this Court following the trial court’s denial of the defendant’s motion for a new trial. Through this  appeal the defendant avers that (1) the evidence is insufficient to support his conviction for aggravated kidnapping; (2) the trial court erred in allowing the State to present photographic evidence to the  jury; and (3) the trial court erred by permitting the State to amend for a second time the indictment charging him with aggravated rape. After reviewing these issues, we find that none merit relief but remand the case for correction of the judgments.

The Defendant, Keith A. Otey, was convicted one count of driving on a revoked license and one count of possession of .5 grams or more of crack cocaine with the intent to sell or deliver. After a sentencing hearing, the trial court sentenced the Defendant as a Range I standard offender to ten days for the revoked license conviction and ten years and a $2,000 fine for the drug conviction. The sentences were to be served concurrently. On appeal, the Defendant argues that the trial court erred in (1) denying the Defendant's motion to suppress evidence seized from and a statement made by the Defendant as a result of an illegal stop; (2) allowing the State to introduce evidence of a prior cocaine sale made by the Defendant; (3) allowing hearsay evidence regarding the Defendant's prior cocaine sale; and (4) ruling that a ten-year-old incident involving the Defendant giving a false name to a police officer could be used to impeach the Defendant if he chose to testify. We reverse the judgment of the trial court and remand for further proceedings consistent with this opinion.

The defendant appeals the revocation of his probation. After a review of the record, we conclude that the defendant stipulated to the violation at the revocation hearing. Furthermore, the defendant had actual notice of an alleged violation based on two positive drug screens. Therefore, the court properly found a probation violation on that basis. Finally, the defendant's failure to pay court costs and restitution as ordered by the court was not due to an inability to pay but was a willful refusal to pay. As such, the trial court did not abuse its discretion in revoking the defendant's probation. The judgment of the trial court is affirmed.

The defendant was convicted by a Shelby County Criminal Court jury of rape, a Class B felony, and sentenced by the trial court to fourteen years, at 100% as a violent offender, in the Tennessee Department of Correction. The sole issue he presents on appeal is whether the evidence was sufficient to support his conviction. Based upon our review of the record, we conclude that the evidence was sufficient for a rational trier of fact to find him guilty of the offense beyond a reasonable doubt. Accordingly, the judgment of the trial court is affirmed.

The defendant, Gregory Ozier, an inmate at the Whiteville Correctional Facility, appeals an order transferring his custody to Illinois to face a charge of first degree murder in the Criminal Division of the Circuit Court of Cook County. Because the trial court properly granted the petition by the State of Illinois for custody of the defendant, the judgment is affirmed.

Following a jury trial, the defendant was convicted of aggravated burglary and sentenced as a Range II, multiple offender to nine years in the Tennessee Department of Correction. He timely appealed, arguing that the evidence presented was insufficient and that the trial court erred in instructing the jury as to criminal trespass as a lesser-included offense of aggravated burglary. Based upon our review, we affirm the judgment of the trial court.

The Defendant, Kenneth Anthony Henderson, was convicted by a jury of second degree murder, attempted second degree murder, and aggravated assault. The trial court merged the attempted second degree murder and the aggravated assault convictions. The Defendant was sentenced to twenty-three years for the murder, and to eleven years for the attempted murder, with the terms to run consecutively. In this direct appeal the Defendant raises two issues: whether the evidence in support of his murder conviction is sufficient, and whether the trial court erred in failing to instruct the jury on certain lesser-included offenses. Finding that the trial court committed reversible error in failing to charge certain lesser-included offenses, we reverse the Defendant's convictions and remand this matter for a new trial.

The petitioner, Antione Harbison, appeals the denial of post-conviction relief from the Davidson County Criminal Court. The petitioner pled guilty on August 13, 1999, to aggravated rape and attempted first degree murder. For the aggravated rape charge, the petitioner waived his sentence range, and the court sentenced him as a violent offender to thirty years with 100% of the sentence to be served. For the attempted first degree murder charge, the court sentenced the petitioner as a Range 1, standard offender and imposed a concurrent fifteen-year sentence. The petitioner appeals his denial of post-conviction relief, claiming that (1) his "defense counsel at the time of the plea was ineffective in failing to investigate [petitioner's] mental health and his ability to understand the nature of the charges against him, the guilty plea he entered, and the sentence he was to serve" and (2) the post-conviction court "erred in the post-conviction proceeding by denying [petitioner] an ex parte mental evaluation of the [petitioner's] competency by a private expert."

The defendant, Steven Kelly Mezo, who was charged with two counts of the aggravated sexual battery of his daughter, A.M., was convicted of one count of aggravated sexual battery and one count of assault. The trial court ordered concurrent sentences of eight years and 11 months and 29 days, respectively. In this appeal of right, the defendant asserts that (1) he was denied his constitutional right of assistance of counsel of his choosing; (2) he was denied the effective assistance of counsel with regard to a pre-trial settlement offer; (3) the evidence was insufficient; and (4) the trial court erred by admitting hearsay statements.

Defendant pled guilty to two counts of unlawful possession of a Schedule VI controlled substance with intent to sell and deliver. On appeal, defendant contends that the trial court abused its discretion when it imposed a sentence of incarceration. Defendant also appeals the admission of certain hearsay evidence. We conclude there was no error and thus, affirm the judgment of the trial court.

The petitioner, Antwone Terry, appeals the denial of his petition for post-conviction relief. In this appeal, the petitioner contends (1) that he did not receive the effective assistance of counsel and (2) that the state engaged in prosecutorial misconduct. The judgment of the trial court is affirmed.

Defendant, John Charles Johnson, was convicted by a Davidson County jury of second degree murder, especially aggravated robbery, and facilitation of aggravated kidnapping. The trial court sentenced him to consecutive sentences of twenty-five years for second degree murder and five years for facilitation of aggravated kidnapping, to be served concurrently with a twenty year sentence for especially aggravated robbery. On appeal, our Court affirmed the conviction and the lengths of each sentence, but reversed the order of consecutive sentencing and remanded to the trial court for a new hearing solely on the issue of consecutive or concurrent sentencing. See State v. John Charles Johnson, No. M2000-00529-CCA-R3-CD, 2000 WL 208512, Davidson County (Tenn. Crim. App., Nashville, March 1, 2001) perm to appeal denied (Tenn. 2001). On remand, the trial court resentenced Defendant to consecutive sentences of twenty five years for second degree murder and five years for facilitation of aggravated kidnapping. In this appeal, Defendant argues that the trial court erred by again ordering the sentences to be served consecutively. After a thorough review of the record, we affirm the judgment of the trial court.