APPELLATE COURT OPINIONS

The Defendant, David Eugene Breezee, was found guilty by a Benton County Circuit Court jury of rape, a Class B felony, and incest, a Class C felony. See T.C.A. §§ 39-13-503(b); 39-15-302(b). At the sentencing hearing, the incest conviction was merged with the rape conviction, and the Defendant was sentenced to ten years’ confinement. On appeal, the Defendant contends that the evidence is insufficient to sustain his convictions and that he erroneously received more than the minimum sentence of eight years because the trial court applied the multiple victims enhancement factor. We affirm the Defendant’s conviction and sentence for rape, but we reverse the trial court’s merger of the incest conviction into the rape conviction, reinstate the incest conviction, and remand for sentencing as to that conviction.

I respectfully dissent. I believe that the record shows that the Defendant deserves judicial diversion and that substantial evidence does not exist to justify the trial court’s denying diversion. The majority opinion accurately describes the many positive factors that support diversion and succinctly states that the trial court denied it because of the Defendant’s "lack of amenability to correction based upon not being credible in his testimony and a lack of honesty with his employer." I do not see this lack of amenability in the record.

Carlos Burris (“the Defendant”) appeals his convictions in two separate trials for attempting to obtain a controlled substance by fraud and driving on a suspended license, fourth offense. The trial court sentenced the Defendant to six years for the attempting to obtain a controlled substance by fraud conviction and to eleven months, twenty-nine days for the driving on a suspended license conviction. The trial court also ordered that the two sentences run consecutively. On appeal, the Defendant contends that the evidence presented at both trials was insufficient to support his convictions. Additionally, the Defendant contends that his sentence for the first conviction was excessive and that the trial court erred by running the two sentences consecutively. After a thorough review of the record and the applicable law, we affirm the Defendant’s convictions and sentences.

Jarvis Q. Williams (“the Petitioner”) filed for post-conviction relief from his convictions of seven counts of especially aggravated kidnapping and four counts of aggravated robbery, alleging ineffective assistance of trial and appellate counsel and denial of a public trial. After a hearing, the post-conviction court granted relief in the form of a reduced sentence but otherwise denied relief. This appeal followed. Upon our thorough review of the record, we affirm the judgment of the post-conviction court.

Following a bench trial, the Defendant, Deborah Davis, was convicted of one count of driving under the influence (DUI), first offense, a Class A misdemeanor. See Tenn. Code Ann. § 55-10-401. The Defendant was sentenced to eleven months, twenty-nine days with forty-eight hours to be served in confinement and the remainder to be served on unsupervised probation. In this appeal as of right, the Defendant contends (1) that the trial court erred by denying her motion to suppress all evidence gathered by the police pursuant to an accident investigation because such evidence was protected by the accident report privilege of Tennessee Code Annotated section 55-10-114(b); and (2) that the evidence was insufficient to sustain her conviction. Following our review, we conclude that these issues are without merit and affirm the judgment of the trial court.

The Defendant, Memory Gayle Hall, entered open pleas of guilty to driving under the influence of an intoxicant (DUI), speeding, and failing to provide evidence of financial responsibility. At sentencing, the trial court ordered her to serve forty days on consecutive weekends in the county jail, followed by probation for the balance of the eleven months and twenty-nine day sentence. She challenges the trial court’s denial of full probation, contending that she was a favorable candidate. After reviewing the record and applicable authorities, we affirm the judgments of the trial court.

The Petitioner, Kenneth Gregory Allen, appeals from the Marshall County Circuit Court’s summary dismissal of his pro se petition for post-conviction relief. On appeal, the Petitioner asserts that the post-conviction court erred in failing to acknowledge his claim of ineffective assistance of counsel and dismissing his petition based solely on finding that the issues raised therein were previously determined. Upon review, we reverse the judgment of the post-conviction court and remand for appointment of counsel and an evidentiary hearing with regard to the Petitioner’s ineffective assistance of counsel claim.

A Benton County Circuit Court Jury convicted the appellant, David Eugene Breezee, of rape of a child, a Class A felony, and incest, a Class C felony. After a sentencing hearing, the trial court merged the incest conviction into the rape of a child conviction and sentenced the appellant to twenty-five years in confinement. The sentence was to be served consecutively to a prior sentence. On appeal, the appellant contends that (1) the evidence is insufficient to support the convictions, (2) the trial court erred by refusing to allow him to question the victim about nude photographs taken of her by a registered sex offender, and (3) the trial court improperly ordered consecutive sentencing. The State argues that the trial court erred by merging the appellant’s convictions. Based upon the record and the parties’ briefs, we conclude that the evidence is sufficient to support the appellant’s convictions, that the trial court did not err by refusing to allow the appellant to question the victim about nude photographs, and that the trial court did not err by ordering consecutive sentencing. However, the trial court erred by merging the appellant’s convictions. Therefore, the appellant’s incest conviction is reinstated, and the case is remanded to the trial court in order for the court to resentence the appellant for both offenses.

Appellant, Jermaine Burdette, pleaded guilty to three counts of especially aggravated kidnapping and three counts of aggravated robbery. The trial court sentenced him to a total effective sentence of 111 years in the Tennessee Department of Correction. Appellant argues that the trial court erred in sentencing him and by failing to merge the counts of especially aggravated kidnapping with aggravated robbery as to each victim. After reviewing the record, the parties’ briefs, and applicable law, we affirm the judgments of the trial court.

A Williamson County Grand Jury indicted appellant, Robert Allen Zaloba, for eight counts of rape of a child, one count of rape, and one count of aggravated sexual battery. The first five counts of rape of a child (counts 1-5) pertained to one victim, and the remaining three counts of rape of a child, one count of rape, and one count of aggravated sexual battery involved a second victim. The trial court severed counts six through ten for trial. The jury returned verdicts of guilty on all counts, for which the trial court sentenced appellant to serve an effective forty-eight-year sentence. Appellant raises the following issues: (1) whether the trial court properly admitted a reference that appellant had engaged in sexual relations with another individual; (2) whether the trial court properly denied appellant’s request to admit the victim’s prior inconsistent statement as substantive evidence; (3) whether the trial court properly denied appellant’s request for a jury instruction that it could consider the victim’s prior inconsistent statement as substantive evidence; (4) whether the trial court properly instructed the jury that "recklessly" was a proper mens rea for rape of a child; (5) whether the trial court properly instructed the jury by using the disjunctive "or" to connect the requisite mental states; (6) whether the trial court erred in rejecting appellant’s mitigation proof at sentencing; (7) whether the trial court erred in imposing consecutive sentences; (8) whether the evidence is sufficient to sustain appellant’s convictions; and (9) whether the circumstantial nature of the case rendered any errors by the trial court not harmless. Discerning no reversible error in the proceedings, we affirm the judgments of the trial court.

A Shelby County Criminal Court Jury convicted the appellant, Harold Moore, of selling less than .5 grams of cocaine, possessing less than .5 grams of cocaine with intent to sell, and possessing less than .5 grams of cocaine with intent to deliver. After a sentencing hearing, the trial court merged the convictions and sentenced him to five years in confinement. On appeal, the appellant contends that the evidence is insufficient to support the convictions. Based upon the record and the parties’ briefs, we affirm the judgment of the trial court.

The Defendant, Andrea Nichole Bean, pled guilty to the sale and the delivery of .5 grams or more of cocaine. At the sentencing hearing, the trial court merged the two convictions and imposed a sentence of sixteen years as a Range II, multiple offender to be served in the Department of Correction ("DOC"). In this direct appeal, the Defendant contends that the trial court erred in denying her an alternative sentence. After our review, we affirm the judgment of the trial court.

After a trial by jury, the defendant was convicted of one count of theft of property valued at more than $1,000 but less than $10,000, a Class D felony. She was sentenced as a Range I, standard offender to two years, with credit for time served and the balance to be served on probation as an alternative sentence. The defendant now appeals, claiming that the evidence is insufficient to support her conviction and that the trial court erred by denying her motion to suppress evidence seized by police during a search of her property, both before and after the issuance of a search warrant. For the reasons that follow, we affirm the judgment of the trial court.

The petitioner, Matthew Jackson, was convicted of four counts of aggravated robbery pursuant to a plea agreement and was sentenced to an effective ten years of incarceration. The petitioner filed a prior application for the writ of error coram nobis, the denial of which was affirmed on appeal. The petitioner brings this subsequent petition for the writ of error coram nobis, asserting various grounds for relief. The trial court denied the writ, noting that the claim was time-barred and that the petitioner failed to allege facts which would negate the knowing and voluntary nature of his pleas. After a review of the record, we affirm.

Nathaniel Shelbourne (“the Defendant”) was convicted by a jury of intentional or knowing aggravated assault causing serious bodily injury. After a sentencing hearing, the trial court sentenced the Defendant to a term of eight years in the Tennessee Department of Correction, to be served consecutively to his prior sentence. In this appeal as of right, the Defendant claims that (1) the trial court erred in admitting photographs of the victim’s injuries; (2) the trial court erred in refusing to charge the jury on the lesser-included offense of misdemeanor reckless endangerment; (3) the evidence is not sufficient to support his conviction; and (4) his sentence is excessive. After a thorough review of the record and relevant authorities, we have determined that the Defendant is not entitled to relief on any of these issues. Accordingly, we affirm the trial court’s judgment.

The defendant, Christopher Brandon Presley, appeals the revocation of his probation. In August 2010, the defendant pled guilty to one count of aggravated burglary, a Class C felony, and one count of aggravated assault, a Class C felony. He received an effective ten-year sentence. The trial court suspended the defendant’s sentence and placed him on probation. One year later, a probation violation warrant was issued (and subsequently amended). Following a hearing, the trial court revoked the defendant’s probation and imposed his sentence. On appeal, the defendant claims that the trial court abused its discretion by revoking his probation. Following our review, we affirm the judgment of the trial court.

I concur with the majority opinion except as to the issues of consecutive sentencing and lesser included offenses.

The Defendant, Thomas L. Agnew, appeals from his Sullivan County Criminal Court conviction for third offense driving on a revoked or suspended license, a Class A misdemeanor. See T.C.A. § 55-50-504(a)(1), (2) (Supp. 2009) (amended 2010). The Defendant was sentenced to eleven months and twenty-nine days, with six months to be served in jail at 75%. On appeal, he contends that the trial court erred in imposing six months of confinement. We affirm the judgment of the trial court.

The Petitioner, David Ivy, appeals from the Shelby County Criminal Court’s denial of his petition for post-conviction relief. A Shelby County jury convicted the Petitioner of premeditated first degree murder and sentenced him to death. The Tennessee Supreme Court affirmed the Petitioner’s conviction and sentence on direct appeal. See State v. Ivy, 188 S.W.3d 132 (Tenn. 2006). On appeal, the Petitioner asserts that (1) he is actually innocent of the offense; (2) counsel were ineffective in both phases of the trial and on appeal; (3) the State committed prosecutorial misconduct during closing arguments in both phases of the trial; (4) the application of the prior violent felony aggravating circumstance in Tennessee Code Annotated section 39-13-204(i)(2) was improper; (5) the Capital Defense Team of the Shelby County Public Defender’s Office is “constitutionally ineffective”; and (6) the death penalty is unconstitutional. We affirm the judgment of the trial court denying the Petitioner post-conviction relief.

The petitioner, Jackie Caldwell, appeals the Campbell County Criminal Court’s denial of her petition for post-conviction relief. The petitioner stands convicted of aggravated rape and is serving a twenty-two year sentence in the Department of Correction. On appeal, she raises the issues of ineffective assistance of counsel and an improper sentence. Following review of the record before us, we affirm the denial of relief.

The defendant, Danielle Sims, was convicted of aggravated statutory rape, a Class D felony, and contributing to the delinquency of a minor, a Class A misdemeanor, and received an effective sentence of three years, with eleven months, twenty-nine days to serve at 75% and the remainder on intensive state probation. On appeal, she argues that the evidence is insufficient to support her rape conviction. Following our review, we affirm the judgment of the trial court.

The appellant, Ricky Ray Starnes, pled guilty to a violation of a habitual traffic offender order, a Class E felony, and a violation of registration, a Class C misdemeanor. The trial court imposed a total effective sentence of two years. On appeal, the appellant challenges the trial court’s denial of community corrections. Upon review, we affirm the judgments of the trial court.

The Defendant, Charmon D. Copeland, was convicted by a Davidson County Criminal Court jury of especially aggravated kidnapping, a Class A felony. See T.C.A. § 39-13-305 (2010). He was sentenced as a Range I, standard offender to twenty-five years’ confinement at 100% service as a violent offender. On appeal, the Defendant contends that (1) the evidence is insufficient to support his conviction, (2) the prosecutor engaged in three instances of improper conduct, and (3) the trial court improperly sentenced him. We affirm the judgment of the trial court.

This case is the consolidation of appeals by the Defendant, Thomas D. Taylor (a/k/a James Ray McClinton), of two cases, a direct appeal and the appeal from a the denial of a petition for a writ of error coram nobis. A Bradley County jury convicted the Defendant of especially aggravated kidnapping, a Class A felony, and aggravated assault, a Class C felony. The trial court imposed a sentence of sixty years, at 100%, for the especially aggravated kidnapping conviction and ten years, at 35%, for the aggravated assault conviction. The trial court ordered these sentences to run consecutively for a total effective sentence of seventy years. In his direct appeal, the Defendant contends the following: (1) for numerous reasons, he was denied his right to the effective assistance of counsel; (2) the trial court erred when it limited cross-examination of the victim; (3) prosecutors engaged in misconduct; and (4) the trial court erred in failing to consider new evidence presented during the motion for new trial. In the appeal from the trial court’s denial of his petition for writ of error coram nobis, the Defendant contends that the trial court erred when it denied his petition because the victim’s medical records contained newly discovered evidence. After consolidating the appeals and thoroughly reviewing the record and applicable authorities, in the Defendant’s direct appeal, we affirm the judgments of the trial court. In the Defendant’s appeal from his petition for a writ of error coram nobis, we affirm the judgment of the coram nobis court.

Defendant, Gregory N. Brown, was charged in a two-count indictment with domestic aggravated assault and cruelty to animals. Defendant pled guilty to domestic aggravated assault, a Class C felony, and the cruelty to animals charge was dismissed. Following a sentencing hearing, the trial court sentenced Defendant to serve six years as a Range I standard offender in the Tennessee Department of Correction (TDOC). Defendant appeals his sentence and argues that the trial court erred by imposing the maximum sentence within the applicable range. Following our review of the record, we affirm the judgment of the trial court.