APPELLATE COURT OPINIONS

The defendant/appellant, Gary Lamar McBride, appeals as of right from a conviction for murder second degree by a Davidson County jury. The Davidson County Criminal Court imposed a sentence of sixteen (16) years in the Department of Correction. The defendant presents three appellate issues:<?xml:namespace prefix = o /?>

1.     Whether the trial court erred in allowing the defendant’s statement to be read to the jury and not suppressing the same.

2.     Whether the trial court erred in not finding that the proof adduced at trial by the State is in conflict with the physical facts rule applicable to criminal cases.

3.     Whether the evidence adduced at trial was sufficient to convict the defendant of murder second degree.

A Davidson County jury convicted the appellant, Steven D. Pittman, of one (1) count of possession with the intent to sell over 0.5 grams of cocaine, one (1) count of felonious possession of a weapon and one (1) count of simple possession of marijuana. The trial court sentenced the appellant as a Range I offender to concurrent terms of eleven (11) years for possession with the intent to sell cocaine, two (2) years for felonious possession of a weapon and eleven (11) months and twenty-nine (29) days for marijuana possession. On appeal, the appellant contends that the evidence is insufficient to sustain his convictions. After a thorough review of the record before this Court, we conclude that the state presented sufficient evidence to support the appellant’s convictions. We therefore affirm the judgment of the trial court.

The Defendant was indicted by the Henry County Grand Jury for (1) driving under the influence (fourth offense); (2) driving while license is cancelled, suspended, or revoked; (3) violation of the “light law”; and (4) failure to appear. He pleaded guilty to driving while license is cancelled, suspended, or revoked and to violation of the “light law.”1 He was then tried on the remaining offenses, found guilty of DUI, and acquitted of failure to appear.

This extraordinary appeal involves an automobile collision. The driver of the automobile that was struck from behind and her husband filed a negligence action in the Circuit Court for Davidson
County against the driver and record owner of the automobile that struck her. The trial court granted the plaintiffs’ motion for partial summary judgment on the issue of the driver’s liability. The defendants applied for an extraordinary appeal after the trial court declined to grant them an interlocutory appeal. We have determined this is a proper case for an extraordinary appeal and that the plaintiffs are not entitled to a partial summary judgment because of the existence of material factual disputes regarding liability. Accordingly, pursuant to Tenn. Ct. App. R. 10(b),1 we reverse the partial summary judgment and remand the case for further proceedings. Tenn. R. App. P. 10 Extraordinary Appeal; Judgment of the Circuit Court Reversed.
 

In June 1998, the appellant, Mell Thomas Bruton,¹ pled guilty to one (1) count of aggravated assault and received a sentence of six (6) years as a Range II offender.² The trial court ordered that the appellant be placed on community corrections after serving six (6) months of his sentence. In July, a warrant was filed against the appellant alleging that he had violated two conditions of his community corrections sentence. After an evidentiary hearing, the trial court revoked the appellant’s community corrections sentence and re-sentenced him as a Range II offender to nine (9) years incarceration. On appeal, the appellant claims that the trial court erred in revoking his community corrections sentence and in increasing his sentence to nine (9) years. Because we find that the appellant was not eligible for community corrections in the first instance, and further that, in any event, ample reason exists to revoke the appellant’s community corrections placement and increase his sentence, we affirm the judgment of the trial court.<?xml:namespace prefix = o /?>

The appellant, Arcenta Van Harrison, pled guilty in the Davidson County Criminal Court to three (3) counts of theft of property over $500 and two (2) counts of theft of property over $1,000. The trial court sentenced the appellant to concurrent terms of four (4) years for the theft over $500 counts as a Range II offender and eight (8) years for the theft over $1,000 counts as a Range III offender.  The trial court ordered that the appellant serve his sentence on community corrections. A warrant was subsequently issued alleging that the appellant had violated the terms of his community corrections sentence. After an evidentiary hearing, the trial court revoked community corrections and re-sentenced the appellant to an effective term of nine (9) years incarceration. On appeal, the appellant contends that: (1) the trial court erred in revoking his community corrections; (2) the trial court erred in enhancing his sentence to nine (9) years; and (3) the trial court imposed illegal sentences for three (3) of his convictions. After a review of the record before this Court, we conclude that the trial court did not err in revoking the appellant’s community corrections sentence; and we affirm that portion of the trial court’s judgment. However, because the trial court did not conduct an appropriate sentencing hearing, before increasing the appellant’s sentence, we reverse and remand this case to the trial court for re-sentencing.<?xml:namespace prefix = o /?>

This appeal involves a suit to recover money advanced by a construction lender to a building supply company to pay for building supplies which the bank mistakenly thought had been delivered to the bank’s debtor. Plaintiff, Farmers & Merchants Bank (Bank) sued defendant, Midway Supply Company, Inc., (Midway) to recover the sums advanced after Midway failed to deliver the supplies and applied the advanced funds to pay other accounts of the Bank’s debtor. From the judgment of the Circuit Court awarding judgment to Bank for the advanced funds less certain credit, Midway has appealed.

The defendant, Robert H. Harper, Jr. appeals upon a certified question of law his conviction in the Hardin County Circuit Court for felonious possession of marijuana for which he received a three year sentence as a Range I, standard offender and a fine of five thousand dollars. The defendant asserts that the stop of his vehicle was not based upon reasonable suspicion and that the subsequent warrantless search was unlawful. We conclude that the stop and search were improper, and we reverse the judgment of conviction and dismiss the case.

Ronald C. Mitchell appeals from the Lauderdale County Circuit Court’s denial of his petition for post-conviction relief following an evidentiary hearing. He contends that he is entitled to post-conviction relief from a conviction for felonious possession of cocaine because (1) he received the ineffective assistance of trial counsel, (2) he received the ineffective assistance of appellate counsel, (3) the convicting trial court’s admission of a pager and money violated his right to due process, and (4) the systematic exclusion of African-Americans from the position of grand jury foreperson violated his right to equal protection. We affirm the trial court’s denial of the petition.

Jeffery L. Vaughn appeals from the Dyer County Circuit Court’s denial of his petition for postconviction relief following an evidentiary hearing. He contends that he was deprived of his constitutional right to a fair trial because jurors allegedly overheard a bench conference  egarding his prior criminal record. He also contends that he received the ineffective assistance of counsel at trial due to his counsels’ failure to inform him of the correct sentencing range, to have the cocaine independently weighed, to present the testimony of his drug counselor, and to move for an acquittal at the end of the proof. We affirm the trial court’s denial of the petition for post-conviction relief.

This appeal involves a custody dispute over twin daughters born after their parents separated following a brief marriage. The father filed for divorce in the Putnam County General Sessions Court shortly after learning that the mother was pregnant, and the mother counterclaimed for divorce and for sole custody of the unborn children. Following a bench trial, the general sessions court granted the father a divorce based on the mother’s inappropriate marital conduct, awarded the father sole custody of the children, and directed the mother to pay child support. On this appeal, the mother asserts that the general sessions court’s decision interferes with her constitutional right to make primary care-taking decisions for her children, that she is comparatively more fit than the father to be the custodial parent, and that the general sessions court should have awarded joint custody. We have determined that the custody arrangement does not impermissibly interfere with the mother’s parental rights and that the evidence fully supports the general sessions court’s custody decision. Accordingly, we affirm the judgment awarding sole custody to the children’s father. Tenn. R. App. P. 3 Appeal as of Right; Judgment of the General Sessions Court Affirmed and Remanded
 

This appeal involves a dispute over a sizeable estate. After learning that they had been excluded from their relative’s will, thirteen of the testatrix’s heirs challenged the will in the Chancery Court for Sumner County on the grounds of improper execution, lack of testamentary capacity, and undue influence. The proponents of the will asserted that the contestants lacked standing because their challenge, even if successful, would only revive an earlier will from which they had likewise been excluded. The trial court found that the contestants had standing but, following a bench trial, determined that the contestants had failed to prove their improper execution, lack of testamentary capacity, or undue influence claims. On this appeal, the contestants take issue with the decision to uphold the will; while the proponents take issue with the conclusion that the contestants had standing to challenge the will. We have determined that the contestants had standing to challenge the will and that the trial court properly determined that the will should be admitted to probate in solemn form. Accordingly, we affirm the judgment. Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Chancery Court Affirmed and Remanded.
 

A Davidson County jury convicted the appellant, Jeremy M. Batey, of one count of reckless homicide, a Class D felony. The trial court sentenced the appellant as a Range I offender to three years incarceration in the local workhouse. On appeal the appellant contends that the trial court erred in denying him an alternative sentence solely on the basis that the crime involved a death. We hold that where the legislature has provided for alternative sentencing in certain homicide offenses, the denial of an alternative sentence solely on the basis of the victim’s death is erroneous. However, in the instant case the circumstances of the offense, including illegal drug and alcohol use which contributed to the offense, and the appellant’s history of alcohol and drug abuse, including the use of marijuana 2 ½ years after the offense and approximately four months prior to his trial justify the denial of alternative sentencing.<?xml:namespace prefix = o /?>