APPELLATE COURT OPINIONS

The Defendant-Appellant, Walter Francis Fitzpatrick, III, was indicted by the McMinn County Grand Jury for harassment, aggravated perjury, stalking, and extortion. The trial court granted the defense's motion for judgment of acquittal as to the stalking charge after the close of the State's proof at trial, and it was dismissed. The jury convicted Fitzpatrick of aggravated perjury and extortion, Class D felonies, but found Fitzpatrick not guilty of harassment, a Class A misdemeanor. T.C.A. §§ 39-16-703; 39-14-112; 39-17-308. The trial court sentenced Fitzpatrick to concurrent sentences of three years with a release eligibility of thirty percent for his aggravated perjury and extortion convictions and ordered these sentences to be served consecutively to his misdemeanor convictions in Monroe County for disrupting a meeting and resisting arrest in case number 10-213, resisting arrest in case number 11-018, and tampering with government records in case number 12-108.1 On appeal, Fitzpatrick argues: (1) the trial court lacked jurisdiction over his case because a grand jury member voting to indict him was disqualified by reason of interest, and (2) the evidence is insufficient to support his convictions. Upon review, we affirm the judgments of the trial court.

The defendant, David Leon Graves, was convicted by a Wilson County Criminal Court jury of two counts of attempted first degree premeditated murder, a Class A felony; one count of assault, a Class B misdemeanor; and one count of reckless endangerment, a Class E felony.   He was sentenced by the trial court as a Range I, standard offender to twenty-five years and twenty years, respectively, for the attempted murder convictions, six months for the assault conviction, and two years for the reckless endangerment conviction.  The trial court ordered the twenty-year sentence served consecutively to the twenty-five-year sentence, for an effective term of forty-five years in the Department of Correction. The defendant raises six issues on appeal: (1) whether the evidence is sufficient to sustain the convictions; (2) whether the trial court erred by allowing evidence of statements the defendant made while hospitalized; (3) whether the trial court erred by admitting a photograph of the victim’s injuries; (4) whether the trial court erred by not allowing evidence about a prior frivolous 9-1-1 call made by the defendant’s girlfriend; (5) whether the defendant’s convictions and sentences violate principles of double jeopardy; and (6) whether the trial court erred in ordering consecutive sentencing.  Following our review, we affirm the judgments of the trial court.

Following the execution of a search warrant for his property and residence, the Defendant-Appellant, Jerry Lewis Tuttle, was indicted by the Maury County Grand Jury in case number 21695 for possession of .5 grams or more of cocaine with intent to sell, possession of not less than one-half ounce nor more than ten pounds of marijuana with intent to sell, and being a felon in possession of a firearm.  He was also indicted by the Maury County Grand Jury in case number 22091 for conspiracy to possess marijuana in an amount over 300 pounds with intent to sell or deliver within 1000 feet of a school, conspiracy to commit money laundering, money laundering, possession of a firearm with the intent to go armed during the commission of a dangerous felony, and acquiring or receiving property subject to judicial forfeiture pursuant to Tennessee Code Annotated section 39-11-703.  The Defendant-Appellant filed motions to suppress the evidence seized and to dismiss the forfeiture count, which were denied by the trial court following a hearing. At trial, the Defendant-Appellant was convicted in case number 21695 of the lesser included offense of simple possession of cocaine and the charged offense of possession of marijuana with intent to sell; the count charging him with being a felon in possession of a firearm was dismissed.  In case number 22091, the Defendant-Appellant was convicted of the lesser included offense of conspiracy to possess marijuana in an amount over 300 pounds with intent to sell or deliver as well as the charged offenses of conspiracy to commit money laundering, money laundering, and possession of a firearm with the intent to go armed during the commission of a dangerous felony.  Following a bench trial on the judicial forfeiture count, the trial court denied the forfeiture of several items seized but ordered the forfeiture of other items, including the $1,098,050 that is at issue on appeal.  After a sentencing hearing on the other counts, the trial court imposed an effective sentence of fifty years with a release eligibility of thirty-five percent.  On appeal, the Defendant-Appellant argues:  (1) that the search of his property violated his constitutional right against unreasonable searches and seizures because the affidavit in support of the search warrant did not provide probable cause for the issuing judge to believe that evidence of a crime would be found on his property and in his home; (2) the evidence is insufficient to sustain his conspiracy convictions; and (3) he is entitled to the return of the $1,098,050 because the cash seized was obtained by him more than five years prior to the seizure and because the seizing agent failed to deliver a notice of seizure to him at the time the cash was seized.  Upon review, we reverse the Defendant-Appellant’s convictions.  However, we affirm the trial court’s judgment in regard to the forfeiture proceedings.

I concur with the majority’s opinion in its affirmation of the trial court’s forfeiture order.  I respectfully disagree with the majority’s conclusion that the affidavit supporting the search warrant was insufficient to establish probable cause.  Instead, I would affirm the trial court’s denial of appellant’s motion to suppress and would conclude that the evidence was sufficient to support appellant’s convictions.

The Petitioner, Anesha McKinnon, filed a petition for post-conviction relief in the Shelby County Criminal Court, alleging that her trial counsel was ineffective and that her guilty plea was not knowingly and voluntarily entered. The post-conviction court denied the petition, and the Petitioner appeals. Upon review, we affirm the judgment of the post-conviction court.

Patrick James O'Brien, Jr., (“the Appellant”) pleaded guilty to reckless homicide and possession of a schedule II drug. Pursuant to a plea agreement, the Appellant was sentenced to concurrent, four-year sentences. The trial court denied alternative sentencing. The Appellant filed an appeal alleging that the trial court erred in denying him alternative sentencing. Upon review, we affirm the judgments of the trial court.

Following a jury trial, Anthony B. Whitaker (“the Defendant”) was convicted of aggravated statutory rape. On appeal, the Defendant argues that the trial court erred when it did not give the jury a missing witness instruction. Additionally, the Defendant claims that the language in the presentment was deficient because the presentment did not include “recklessly” as a culpable mental state. After review of the record and applicable law, we affirm the judgment of the trial court.

The petitioner, Howard Lavelle Tate, appeals the denial of his petition for post-conviction relief, arguing that he received ineffective assistance of counsel.  After review, we affirm the denial of the petition.

The Petitioner, Roderick D. Tate, appeals from the denial of post-conviction relief by the Criminal Court for Knox County. Pursuant to a plea agreement, the Petitioner entered guilty pleas to six drug-related offenses, for which he received an effective twenty-one-year sentence. On appeal, he argues that he received the ineffective assistance of counsel in relation to his guilty pleas because counsel misinformed him regarding the applicable range of punishment. Upon our review, we affirm the judgment of the post-conviction court.

Anthony Phillip James, Sr. (“the Appellant”) was convicted by a Montgomery County jury of aggravated child abuse.  On appeal the Appellant alleges that the evidence presented at his trial was insufficient to prove that he knowingly injured the child.  Upon review, we affirm the judgment of the trial court.

The Petitioner, Kevin Lewis, appeals as of right from the Hamilton County Criminal Court’s partial denial of his petition for post-conviction relief. On appeal, the Petitioner contends that his trial counsel was ineffective for failing to argue to the jury that the State did not prove the element of “sexual contact” accompanying his conviction for aggravated sexual battery and for failing to impeach a witness. In response, the State asserts that the post-conviction court erred when it vacated and dismissed the Petitioner’s conviction for aggravated kidnapping after concluding that trial counsel was ineffective for failing to mount a challenge to the sufficiency of the evidence on direct appeal. The State also responds that the post-conviction court did not err when it denied the Petitioner’s remaining claims. Following our review, we reverse the post-conviction court’s ruling dismissing the aggravated kidnapping charge against the Petitioner because we conclude that the court should have vacated the judgment without dismissing the charge in accordance with Tennessee Code Annotated section 40-30-111. In all other respects, the judgment of the post-conviction court is affirmed.

The Defendant-Appellant, Lesergio Duran Wilson, was charged with first degree premeditated murder, and the State filed its notice of intent to seek the death penalty.  Wilson then filed a notice of intent to introduce expert testimony regarding his mental diseases, defects, and other mental conditions bearing on his guilt for the charged offense, and the State filed a motion to exclude this expert testimony.  Following an evidentiary hearing, the trial court granted the State’s motion.  In this interlocutory appeal, Wilson argues that the trial court erred in ruling that he could not present expert testimony during the guilt/innocence phase of trial regarding his incapacity to form the requisite culpable mental states for the offense.  Upon review, we affirm the judgment of the trial court and remand this matter for further proceedings consistent with this opinion.

Petitioner, Termaine Roberson, appeals the denial of his petition for post-conviction relief. Petitioner contends that he received ineffective assistance of counsel based on his trial counsel’s failure to adequately prepare for trial, including failing to call two witnesses at trial and failing to obtain DNA testing of a ski mask worn by one of the perpetrators. Having reviewed the record before us and the briefs of the parties, we conclude that the evidence does not preponderate against the post-conviction court’s findings. Accordingly, the judgment of the post-conviction court is affirmed.

The Defendant, Joseph R. Vibbert, was indicted for two counts of sexual battery by an authority figure, a Class C felony.  See Tenn. Code Ann. § 39-13-527.  The Defendant pled guilty to one count of sexual battery, a Class E felony, and the second count was dismissed.  See Tenn. Code Ann. § 39-13-505.  The trial court sentenced the Defendant as a Range I, standard offender to two years to be served in confinement.  In this appeal as of right, the Defendant contends (1) that the trial court erred by denying his request for judicial diversion; and (2) that the trial court erred by denying his request for an alternative sentence.  Following our review, we affirm the judgment of the trial court.

The Defendant, Billy Jeremy Jones, entered an open guilty plea to felony failure to appear.  The trial court, thereafter, sentenced him to four years, as a Range II, persistent offender, and ordered that sentence to run consecutively to the eight-year sentence on the underlying conviction for which the Defendant failed to appear.  The sole issue presented for our review is whether the effective twelve-year sentence is excessive.  Discerning no abuse of discretion, we affirm the sentencing decision of the Bedford County Circuit Court.

The Petitioner, Michael George Medina, appeals from the denial of post-conviction relief by the Criminal Court for Smith County.  He was convicted of first degree murder of his wife and sentenced to life imprisonment in the Tennessee Department of Correction.  On appeal, the Petitioner argues that he received ineffective assistance of counsel.  Upon review, we affirm the judgment of the post-conviction court.

The Defendant, Dennis Lee Arnold, was convicted by a Davidson County Criminal Court jury of two counts of aggravated sexual battery, Class B felonies, and solicitation of a minor, a Class C felony.  See T.C.A. §§ 39-13-504, 39-13-522, 39-12-102 (2014).  The trial court sentenced the Defendant to consecutive terms of eleven years for the aggravated sexual battery convictions at 100% service and five years for the solicitation conviction, for an effective twenty-seven-year sentence.  On appeal, the Defendant contends that the trial court erroneously admitted prior bad act evidence pursuant to Tennessee Rule of Evidence 404(b).  We affirm the judgments of the trial court.

I write separately to highlight the trial court's copious references to “completing the story of the crime” as a basis for allowing testimony that was challenged pursuant to Tennessee Rule of Evidence 404(b).

The Defendant, Tabitha Gentry aka Abka Re Bey, appeals as of right from her Shelby County jury convictions for two counts of aggravated assault and one count of intentionally evading arrest in an automobile. See Tenn. Code Ann. §§ 39-13-102, -16-603. On appeal, the Defendant contends that the trial court erred by: (1) imposing the maximum sentences for each of her convictions; (2) ordering each of her sentences be served consecutively; (3) denying judicial diversion; and (4) denying all other forms of alternative sentencing. Following our review, we conclude that the trial court improperly applied the dangerous offender classification when ordering consecutive sentences. After conducting a de novo review, we conclude that the Defendant’s sentences should have been ordered to run concurrently, rather than consecutively. In all other respects, the judgments of the trial court are affirmed.

The defendant, Eddie James Bright, pled guilty to initiation of the process to manufacture methamphetamine, a Class B felony, and, following a sentencing hearing, was sentenced to ten years and one day incarceration.  On appeal, he argues that the State breached its contractual obligations to him by mentioning his pending charges at the sentencing hearing, contrary to the plea agreement’s preclusion of the mention of such charges at sentencing.  After review, we reverse the judgment of the trial court and remand for a new sentencing hearing.

A Shelby County jury convicted the Defendant, Daetrus Pilate, of aggravated assault by use of a deadly weapon and evading arrest in a motor vehicle creating a high risk of death or injury, and the trial court sentenced him to a total effective sentence of nine years of incarceration. On appeal, the Defendant contends that: (1) the evidence is insufficient to sustain his convictions; (2) the trial court erred when it excluded photographs of him taken during his hospitalization after being shot during this incident; and (3) his sentence is excessive. After a thorough review of the record and the applicable authorities, we affirm the trial court’s judgments.

The petitioner, Thomas Paul Gagne, Jr., appeals the denial of his motion, filed pursuant to Tennessee Rule of Criminal Procedure 36.1, to correct what he believes to be an illegal sentence. Discerning no error, we affirm.

Defendant, Jarrod Reese Spicer, was convicted by an Obion County jury of second degree murder and aggravated robbery and sentenced to serve concurrent sentences of twenty-five and twelve years, respectively, as a standard offender. On appeal, Defendant argues that there was insufficient evidence to support his convictions and that the trial court abused its discretion by sentencing him to the maximum sentence for each conviction. Discerning no error, we affirm the judgments of the trial court.

The petitioner, Billy Drew Massengill, appeals the denial of post-conviction relief from his 2013 Cocke County Circuit Court guilty-pleaded convictions of the sale of less than 0.5 grams of cocaine, the sale and delivery of Oxymorphone, driving on a revoked license, theft of $500 or less, and failure to appear, for which he received an effective sentence of eight years. In this appeal, the petitioner contends that his guilty pleas were not knowingly and voluntarily entered and that he was denied the effective assistance of counsel. Discerning no error, we affirm.