APPELLATE COURT OPINIONS

The defendant, Michael Clark, was convicted of attempted second degree murder, a Class B felony. He was sentenced to twenty years in the Tennessee Department of Correction as a multiple offender. On appeal, he argues that the evidence was insufficient to support his conviction and that the trial court erred in allowing evidence to be presented concerning his prior conviction for aggravated assault. After careful review, we affirm the judgment from the trial court.

Appellant, Wade Tyler, was indicted by the Rutherford County Grand Jury for one count of rape, one count of incest, and one count of statutory rape by an authority figure. Appellant was convicted by a jury and sentenced to eight years for the rape conviction, four years for the incest conviction, and four years for the statutory rape by an authority figure conviction. The sentences for rape and incest were ordered to be served concurrently. The sentence for statutory rape by an authority figure was ordered to be served consecutively to the sentence for rape, for a total effective sentence of twelve years. After the denial of a motion for new trial, this appeal ensued. On appeal, the following issues are presented for our review: (1) whether the evidence is sufficient to support the convictions; (2) whether the trial court erred by refusing to allow cross-examination of the victim about specific instances of conduct; (3) whether the trial court improperly imposed consecutive sentencing; and (4) whether the indictment was defective. After a review of the record and applicable authorities, we determine that the evidence was sufficient to support the convictions and that the trial court properly ordered consecutive sentencing. Further, we determine that the trial court properly refused to allow cross-examination of the victim about specific instances of conduct and that the indictment was sufficient to inform Appellant of the charges against him. However, because we have identified several discrepancies in the record, we remand the matter for correction of the judgment form for statutory rape by an authority figure. Accordingly, the judgments of the trial court are affirmed and the matter is remanded.

Petitioner, Christopher Michael Flake, was convicted by a Shelby County Jury of two counts of first degree murder. On direct appeal, Petitioner’s convictions were reversed on the basis that the jury improperly rejected the proof at trial that established Petitioner was insane at the time of the offenses. State v. Christopher Flake, No. W2001-00568-CCA-R3-CD, 2002 WL 1298733 (Tenn. Crim. App., at Jackson, June 12, 2002), rev’d on appeal by State v. Flake, 114 S.W.3d 487 (Tenn. 2003). The Supreme Court reversed the decision of this Court on appeal. State v. Flake, 114 S.W.3d 487 (Tenn. 2003). Petitioner sought post-conviction relief, among other things, on the basis of ineffective assistance of counsel. After a hearing, the post-conviction court denied relief. After a thorough review of the record, we determine that Petitioner has failed to show that he received ineffective assistance of counsel. Accordingly, the judgment of the post-conviction court is affirmed.

The Defendant, Lawrence J. Brozik, was charged with ten counts of especially aggravated sexual exploitation of a minor, a Class B felony. See Tenn. Code Ann. § 39-17-1005(c) (2003). Following a jury trial, the Defendant was convicted of ten counts of facilitation of especially aggravated sexual exploitation of a minor, a Class C felony. See Tenn. Code Ann. § 39-11-403(b) (2003). The trial court sentenced the Defendant as a Range I, standard offender to five years for each count and ordered that five of his sentences be served consecutively, for a total effective sentence of twenty-five years. In this direct appeal, he contends that: (1) the State presented insufficient evidence to convict him; (2) the State failed to disclose promises made to, or agreements with, the minor victim’s husband; (3) the trial court erred when it found that he was the leader in the commission of an offense involving two or more criminal actors; (4) the disparity between the Defendant’s sentence and the minor victim’s husband’s sentence violated the Tennessee Criminal Sentencing Reform Act of 1989; (5) the trial court erred by imposing consecutive sentences; and (6) the trial court erred when it found that evidence presented at the motion for new trial hearing was not sufficient to support a new trial. After our review, we affirm the Defendant’s convictions but modify his sentences to be served concurrently.

The petitioner, Melvin Reed, appeals the summary dismissal of his petition for writ of habeas corpus relief. He entered a guilty plea to possession with intent to sell cocaine and was sentenced to ten years incarceration. On appeal, he argues that the indictment that led to his conviction was void. The State has moved to affirm the judgment from the trial court pursuant to Rule 20 of the Rules of the Court of Criminal Appeals. After careful review, we grant the motion, and the judgment of the trial court is affirmed pursuant to Rule 20.

Appellant, John C. Howard, was indicted for three counts of aggravated child abuse. Appellant subsequently pled guilty to two counts of aggravated assault in an open, best interest plea. After a sentencing hearing, a five-year split confinement sentence was imposed. The trial court ordered Appellant to serve one hundred twenty days in incarceration for each offense, followed by five years of probation, and ordered the sentences to be served concurrently. The trial court further denied judicial diversion. Appellant seeks a review of the trial court’s denial of diversion. Because we determine that the trial court did not abuse its discretion in denying judicial diversion, we affirm the judgments of the trial court.

The Defendant-Appellant, Innocent S. Nzamubereka, was convicted by a Sullivan County Criminal Court jury in count one of domestic aggravated assault, a Class C felony, and in counts two and three of aggravated assault, a Class C felony. The trial court sentenced him to six years for each count and ordered counts one and two served concurrently with one another but consecutively to count three, for an effective sentence of twelve years. The court ordered Nzamubereka to serve six years in the Tennessee Department of Correction and allowed him to serve the remaining six years on probation. On appeal, Nzamubereka argues that (1) the trial court erred in finding that one of the victims was unavailable; (2) the evidence was insufficient to support his convictions; (3) the trial court erred in ruling on three evidentiary issues; (4) the trial court erred in allowing the State to make an improper comment during voir dire; and (5) the trial court erred in imposing an excessive sentence. Upon review, we affirm the trial court’s judgments.

Following a jury trial, Defendant, Kenneth Thompson Anderson, Jr., was convicted of eight counts of sexual battery by an authority figure and sentenced to an effective sentence of nine years. In this direct appeal, Defendant raises the following issues for review: 1) whether the trial court erred by refusing to allow testimony regarding the victim’s past sexual behavior and preference for older men; and 2) whether the evidence is sufficient to support Defendant’s convictions. Finding no error, we affirm the judgments of the trial court.

The Defendant, Rolly William Whitford, pled guilty to sexual battery and rape and agreed for the trial court to determine the length and manner of service of his sentence. After a sentencing hearing, the trial court sentenced the Defendant to two years for the sexual battery conviction and ten years for the rape conviction, and it ordered that the sentences run consecutively for an effective sentence of twelve years in the Tennessee Department of Correction. The Defendant appeals, contending the trial court erred when it: (1) enhanced his sentences; (2) ordered consecutive sentencing; (3) denied him an alternative sentence; and (4) admitted into evidence his 1984 psychosexual evaluation over his objection. After a thorough review of the record and applicable law, we affirm the trial court’s judgments.

The Rutherford County Grand Jury indicted Petitioner, Ann Marie Shannon, for four counts including one count of driving under the influence (“DUI”), second offense. On June 19, 2009, Petitioner entered a negotiated plea agreement to DUI, first offense. Pursuant to the agreement, she was ordered to serve forty-eight hours in the Swaim Center 1 and serve eleven months and twenty-nine days on probation. Petitioner subsequently filed a petition for post-conviction relief arguing that she received ineffective assistance of counsel. After an evidentiary hearing, the post-conviction court denied the petition. We have reviewed the record on appeal and conclude that the evidence does not preponderate against the findings of the post-conviction court.  Therefore, we affirm the post-conviction court’s denial of the petition.

The Petitioner, Eddie Lee Murphy, Sr., appeals the Sumner County Criminal Court’s denial of post-conviction relief from his conviction for felony murder and resulting life sentence. See T.C.A. § 39-13-202(a)(2) (2003) (amended 2005, 2007). He contends that the trial court erred in denying him relief because (1) he did not understand the nature of the charges against him and the consequences of his guilty plea, (2) he was not adequately informed of his right against  self-incrimination, (3) trial counsel was ineffective, and (4) his guilty plea was involuntary. We affirm the judgment of the trial court.

A Putnam County jury convicted the Petitioner, James A. Burgess, of two counts of second degree murder, two counts of felony murder, especially aggravated burglary, and felony reckless endangerment and sentenced the Petitioner to life imprisonment for each of the felony murder convictions. The Petitioner appealed the convictions, and this Court remanded the case for  modification of the Petitioner’s conviction for especially aggravated burglary to aggravated burglary and affirmed in all other respects. State v. Burgess, M2009-00897-CCA-R3-CD, 2010 WL 3025524 (Tenn. Crim. Ct. Aug 4, 2010). In May 2010, the Petitioner filed a petition for a writ of error coram nobis, in which he alleged the existence of newly discovered evidence. The trial court dismissed the petition, finding that the Petitioner failed to raise the existence of newly discovered evidence. On appeal, the Petitioner contends the trial court’s denial was in error. After a thorough review of the record and applicable law, we affirm the trial court’s judgment.

This matter is before the Court upon the State’s motion to dismiss or in the alternative to affirm the judgment of the trial court by memorandum opinion pursuant to Rule 20, Rules of the Court of Criminal Appeals. Petitioner, Marquise Harris, appeals the denial of his petition for writ of habeas corpus in which he alleged that his transfer to the Middle Tennessee Mental Health Institute for a forensic evaluation was illegally accomplished in violation of the Fifth Amendment to the United States Constitution and the Sixth Amendment right to counsel and trial by jury. Additionally, Petitioner complained that neither the general sessions court nor the criminal court had jurisdiction because of the illegal transfer. Upon a review of the record in this case, we are persuaded that the trial court was correct in dismissing the petition for habeas corpus relief and that this case meets the criteria for affirmance pursuant to Rule 20, Rules of the Court of Criminal Appeals.

The Defendant, Dwayne Thomas Hooten, appeals as of right from the Davidson County Criminal Court’s revocation of his community corrections sentence and order of incarceration. The  Defendant contends that the trial court erred by ordering the previously imposed sentence to be served in confinement. Following our review, we affirm the judgment of the trial court.

The Petitioner, Calvin Fleming, appeals from the Tipton County Circuit Court’s denial of post-conviction relief from his conviction for attempted first degree murder. On appeal, the Petitioner argues that trial counsel was ineffective in failing to obtain a mental evaluation and in failing to inform the trial court of the absence of the mental evaluation at trial. He also argues that trial counsel was ineffective in failing to object to the State’s introduction of the victim’s medical records on the basis that they violated his Sixth Amendment right to confront witnesses against him and that appellate counsel was ineffective in failing to raise the confrontation issue on appeal. Upon review, we affirm the judgment of the postconviction court.

The Defendant-Appellant, Henry Springer, was convicted by a Madison County jury of aggravated robbery, a Class B felony. He was sentenced as a standard offender to twelve years in the Tennessee Department of Correction. On appeal, Springer claims the evidence was insufficient because it did not identify him as the perpetrator. Upon review, we affirm the judgment of the trial court.

The Defendant, Broderick Joseph Smith, was convicted of two counts of carjacking, a Class B felony; three counts of attempted robbery, a Class D felony; one count of assault, a Class A misdemeanor; one count of aggravated robbery, a Class B felony; and one count of attempted carjacking, a Class C felony. The trial court sentenced the Defendant to 20 years on each of the carjacking convictions, eight years for each of the attempted robbery convictions, 11 months and 29 days for the assault conviction, 15 years for the aggravated robbery conviction, and ten years for the attempted carjacking conviction. The trial court ruled that the sentences for all but the assault conviction should run consecutively for an effective sentence of 89 years. The trial court also ruled that the sentence should run consecutively to the Defendant’s sentence in federal court for two related armed bank robbery convictions. In this appeal as of right, the Defendant contends that (1) the trial court erred in denying his motion to dismiss on the ground that his right to a speedy trial had been violated; (2) that the trial court erred in denying his motion to sever the aggravated robbery count from the remainder of the indictment; (3) that the trial court erred in allowing the State to present evidence that the Defendant committed the two related armed bank robberies; and (4) that the trial court erred by imposing excessive sentences and by imposing consecutive sentences. Following our review, we affirm the judgments of the trial court.

While on probation, the defendant, James Demario Nabors, pleaded guilty to one count of possession of marijuana, one count of possession of a Schedule II controlled substance with intent to deliver .5 grams or more, and one count of introduction of contraband into a penal institution in case number 6274. Simultaneously, he pleaded guilty to one count of delivery of a Schedule II controlled substance less than .5 grams, possession of a Schedule II controlled  substance with intent to deliver .5 grams or more, one count of possession of a firearm during a dangerous felony, and one count of felony possession of a firearm in case number 6390. In exchange for conceding his probation violation and his guilty pleas, the defendant received a total effective sentence of twenty-four years at 35% and, consecutively, five years at 100%. On appeal, the defendant argues that the trial court erred by denying any form of alternative sentencing and imposing confinement in cases 6274 and 6390. Following our review of the record and the  parties’ briefs, we affirm the trial court’s sentencing decision.

I concur. I write separately to express my concern that the courts could turn the phrase “contextual background evidence” into its own exception under Tennessee Rule of Evidence 404(b). I think “contextual background evidence” is a vague concept that can become too broad, much like “res gestae” was used before the courts attempted to consign that phrase to history because of its vagueness. See Gibbs v. State, 300 S.W.2d 890, 892 (Tenn. 1957); State v. Carpenter, 773 S.W.2d 1, 9 (Tenn. Crim. App. 1989); State v. Kenneth Patterson (Pat) Bondurant and Hugh Peter (Pete) Bondurant, No. 01C01-9501-CC-00023, Giles County (Tenn. Crim. App. May 24, 1996) (Tipton, J., concurring), app. denied (Tenn. Nov. 12, 1996). In State v. Gilliland, 22 S.W.3d 266, 270-73 (Tenn. 2000), the supreme court’s analysis regarding background evidence focused on such evidence’s relevance to material issues in the case, the need to present the evidence to prevent confusion, and the weighing of its probative value against the danger of unfair prejudice. Each of these three factors must be considered and found before the evidence is admissible.

The defendant, Shun Jelks, was convicted of introduction of contraband in a penal facility, a Class C felony. He was sentenced to four years in confinement as a Range I, standard offender. On appeal, he argues that the evidence was insufficient to support his conviction and that he was improperly sentenced. After careful review, we affirm the judgment from the trial court.

The Petitioner, Russell Nolan Quarles, pled guilty to possession of drug paraphernalia and received a sentence of eleven months and twenty-nine days. Subsequently, the Petitioner filed a petition for post-conviction relief, alleging that his trial counsel was ineffective and that his guilty plea was not knowingly and voluntarily entered. The post-conviction court denied the petition, finding the Petitioner failed to prove his claims. On appeal, the Petitioner challenges the post-conviction court’s ruling. Upon review, we affirm the judgment of the post-conviction court.

On January 12, 2009, the Defendant, Paul Jay Vassallo, pleaded guilty to three counts of forgery, one count of aggravated burglary, and one count of theft of property valued under $500. Pursuant to the terms of the plea agreement, he received a sentence of two years at 30% for each forgery conviction, a sentence of four years at 30% for the aggravated burglary conviction, and a sentence of eleven-months and twenty-nine days at 75% for the theft conviction. These sentences were concurrent terms, resulting in an effective four-year sentence at 30%. Thereafter, the Defendant filed a motion to withdraw his guilty plea, and the motion was denied. The Defendant now appeals, contending that his guilty plea was made based upon a gross misrepresentation by the prosecutor. After our review, we affirm the judgments of the Sevier County Circuit Court.

The appellant, Dexter Dodd, appeals the denial of his petition to remove the oath of secrecy with respect to two grand jury proceedings. Mr. Dodd is pursuing discrimination and tort claims against certain individuals who allegedly instigated these criminal proceedings against him, and he alleges that removal of the traditional grand jury oath of secrecy is necessary for him to effectively pursue these claims. After careful review, we conclude that the appellant’s appeal is not properly before this court, and we dismiss the appeal.

The appellant, Crystal G. Barnes, was convicted of the promotion of methamphetamine manufacturing, possessing drug paraphernalia, and introducing drugs into a penal institution. The trial court imposed a total effective sentence of three years to be served on probation. Subsequently, the trial court revoked the appellant’s probation and ordered her to serve six months in confinement before being released again on probation. On appeal, the appellant challenges the length of confinement ordered by the trial court. Upon review, we affirm the judgment of the trial court.

The defendant, David Schroeder, pleaded guilty to one count of criminally exposing the victim to the human immunodeficiency virus (“HIV”) in exchange for a three-year sentence with the manner of service of the sentence to be determined by the trial court. Finding the circumstances of the offense particularly reprehensible and the defendant’s criminal record extensive, the trial court ordered a fully-incarcerative sentence. On appeal, the defendant challenges the denial of alternative sentencing. Discerning no error, we affirm the judgment of the trial court.