APPELLATE COURT OPINIONS

The Defendants, Nelson Aguilar Gomez and Florinda Lopez, were charged with: Count One, first degree felony murder during the perpetration of aggravated child abuse; Count Two, first degree felony murder during the perpetration of aggravated child neglect; Counts Three and Four, aggravated child abuse occurring on or about March 3, 2007; and Count Five, aggravated child abuse occurring in February 2007. Aggravated child abuse is a Class A felony. See Tenn. Code Ann. _ 39-15-402(b). The defendants were tried jointly before a jury. Defendant Gomez was convicted of both counts of felony murder, Count One merging into Count Two, and sentenced to life with the possibility of parole. He was also convicted of all three counts of aggravated child abuse and sentenced as a violent offender to twenty-five years for each conviction. The trial court ordered him to serve his Count Three and Count Four aggravated child abuse sentences concurrently with each other and his life sentence, and ordered him to serve his Count Five aggravated child abuse sentence consecutively to his other sentences, for a total effective sentence of life plus twenty-five years in the Department of Correction. On her felony murder charges, Defendant Lopez was convicted of two counts of the lesser-included offense of facilitation of first degree murder, a Class A felony. See Tenn. Code Ann. _ 39-11-403, -13-204(a). Count One was merged into Count Two. Defendant Lopez was also convicted of aggravated child abuse under Counts Three and Four. She was acquitted of aggravated child abuse as charged in Count Five. She was sentenced as a Range I, standard offender to twenty-five years for her facilitation of first degree murder conviction and sentenced as a violent offender to twenty-five years for each of her two aggravated child abuse convictions. The trial court ordered her to serve these sentences concurrently, for a total effective sentence of twenty-five years in the Department of Correction. In this direct appeal, Defendant Gomez contends that: (1) the trial court erred in admitting evidence of certain prior bad acts, in violation of Tennessee Rule of Evidence 404(b); (2) the State presented evidence insufficient to convict him and that the trial court therefore erred in failing to grant his motion for a judgment of acquittal; and (3) the trial court erred in ordering consecutive sentencing. Defendant Lopez contends that: (1) the trial court erred in denying her pre-trial motion to include non-citizens on the jury; (2) the trial court erred in preventing her from introducing an entire statement she made to police after the State impeached her using part of that statement; (3) the trial court erred in admitting evidence of Defendant Gomez's prior bad acts; (4) the State presented evidence insufficient to convict her; and (5) the trial court erred in imposing the maximum sentence for each of her convictions. After our review, we reverse and dismiss Defendant Gomez's Count Five conviction of aggravated child abuse. In all other respects, we affirm the judgments of the trial court.

The Defendant, Michael Deshay Peoples, Jr., was charged with one count of first degree felony murder, one count of especially aggravated robbery, a Class A felony, two counts of aggravated robbery, a Class B felony, and one count of aggravated kidnapping, a Class B felony. See Tenn. Code Ann. __ 39-13-403(b), -402(b), -304(b)(1). One count of aggravated robbery was "nol prossed" by the State prior to the defendant's trial. Following a jury trial, the defendant was convicted of all four remaining offenses as charged. In this direct appeal, the defendant contends that: (1) the State presented evidence insufficient to convict him; and (2) the trial court erred when it allowed testimony regarding the count of aggravated robbery that was "nol prossed" prior to the defendant's trial. After our review, we affirm the judgments of the trial court.

A Perry County grand jury indicted the Petitioner, Darrell John Penner, for two counts of rape of a child. The Petitioner pled guilty to aggravated sexual battery, and the trial court sentenced him to ten years at 100% in the Department of Correction. The Petitioner filed a petition for post-conviction relief, claiming that he received the ineffective assistance of counsel and that his guilty plea was not knowingly and voluntarily entered. The postconviction court denied relief after a hearing, and the Petitioner now appeals. After a thorough review of the record and applicable law, we affirm the judgment of the postconviction court.

The Defendant, Dawn Fox Newhouse, pleaded guilty to theft of services over $10,000, a Class C felony. See Tenn. Code Ann. _ 39-14-105(4). She was sentenced as a Range I, standard offender to four years and six months and was placed on probation. The trial court subsequently found that the Defendant violated her probation and sentenced her to serve 180 days in the Robertson County Jail. The trial court later modified its order and allowed the Defendant to serve her 180 days on weekends. Several months later, the Board of Probation and Parole alleged that the Defendant violated her probation again by incurring a new arrest. After a hearing, the trial court found that the Defendant violated her probation a second time and ordered that she serve the remainder of her sentence in the Department of Correction. In this appeal, the Defendant contends that the trial court erred by revoking her probation. After a review of the record, we conclude that the trial court did not abuse its discretion by revoking the Defendant's probation. The judgment of the trial court is affirmed.

The petitioner, Ronald A. Barker, appeals from the habeas corpus court's summary dismissal of his petition for writ of habeas corpus. Discerning no error, we affirm the judgment of the habeas corpus court.

The Petitioner, Chris Jones, appeals his denial of post-conviction relief. The Petitioner pled guilty to two counts of sale of cocaine in an amount more than .5 grams, a Class B felony, and one count of sale of cocaine in an amount less than .5 grams, a Class C felony. Pursuant to a plea agreement, the Petitioner received sentences of 12 years for each of the Class B felonies and 6 years for the Class C felony. The trial court ordered the sentences to be served concurrently with one another but consecutively to a ten-year sentence imposed in a separate case. In this appeal as of right, the Petitioner contends that he received the ineffective assistance of counsel at his guilty plea hearing. Following our review, we affirm the judgment of the post-conviction court.

The defendant, Patrick M. Lonie, was charged by presentment with twelve counts of especially aggravated sexual exploitation of a minor and ten counts of aggravated sexual battery. In an open plea, he pled guilty to four counts of especially aggravated sexual exploitation of a minor. Following a sentencing hearing, he was sentenced as a Range I offender to one term of eleven years and three terms of ten years, with two of the sentences to be served consecutively, for an effective sentence of twenty-one years. On appeal, he argues that the trial court erred in its application of Tennessee Code Annotated section 40-35- 115 to the Tennessee Protection of Children Against Sexual Exploitation Act of 1990, Tenn. Code Ann. _ 39-17-1001, et seq., and that, as a result, he should not have received consecutive sentences. Following our review, we affirm the judgments of the trial court and remand for entry of corrected judgments to reflect the conviction offenses as especially aggravated sexual exploitation of a minor.

The appellant, William Comfort, pled guilty in the Warren County Circuit Court to attempted aggravated sexual battery, a Class C felony, and was sentenced to eight years in the Tennessee Department of Correction. On appeal, the appellant challenges the trial court's imposition of an eight-year sentence and the denial of alternative sentencing. Upon review, we affirm the judgment of the trial court.

The Petitioner, Joe Clark Mitchell, appeals from the dismissal of his petition for a writ of habeas corpus. The State has filed a motion requesting that this Court affirm the trial court's denial of relief pursuant to Rule 20, Rules of the Court of Criminal Appeals. We find the State's motion has merit. Accordingly, the motion is granted and the judgment of the trial court is affirmed pursuant to Rule 20, Rules of the Court of Criminal Appeals.

The Defendant, Billy Earl McIllwain, Jr., was convicted by a Gibson County jury of one count of first degree murder, two counts of aggravated assault, and one count of possession of a deadly weapon with the intent to employ it in the commission of an offense. He received an effective sentence of life imprisonment plus six years. In this direct appeal, the Defendant's only challenge is to the sufficiency of the convicting evidence. After a review of the record, we affirm the judgments of the trial court.

A Warren County jury convicted the Defendant-Appellant, Margle Ward, 1 of facilitation of theft of property over $1,000, a Class E felony. He was sentenced as a multiple offender to a four-year term of imprisonment and assessed $1,332.50 in fines. On appeal, Margle claims (1) the insufficiency of the evidence; (2) the trial court erred in denying his motion to exclude a statement he made to Jeff Panter; (3) the trial court erred in denying his motion to exclude the testimony of Jason Ward; and (4) his sentence was excessive. Upon review, we affirm the judgment of the trial court.

I respectfully dissent from the majority’s holding that the evidence is insufficient to support the Defendant’s convictions. The evidence at trial established that the Defendant lived across the street and two houses down from the victims’ burglarized home. A partially smoked cigarette was found inside the victims’ home, and subsequent DNA testing established that the Defendant’s DNA was present on the cigarette. Detective Grooms described the cigarette as not being crumpled and stated that the cigarette looked as if it had been partially smoked and then forgotten inside the house. Detective Grooms rejected the idea that the cigarette was tracked into the house from the street and stated that the cigarette appeared to have been placed in the house by the perpetrator. When asked on crossexamination whether a cigarette could stick to a person’s shoe, Detective Grooms stated that he has never had a cigarette stick to his shoe. When officers attempted to apprehend the Defendant at his house, the Defendant, who was sitting on his front porch, ran from the officers. The Defendant was found ten minutes later. Given the presence of the Defendant’s DNA on the cigarette, the condition and location of the cigarette, and the Defendant’s flight to avoid contact with law enforcement, a reasonable jury could conclude that the Defendant was guilty beyond a reasonable doubt. The aforementioned evidence, coupled with Detective Grooms’s testimony, excludes every reasonable hypothesis other than guilt.

A Cocke County Circuit Court jury convicted the defendant, David Lynn Sisk, of aggravated burglary, theft of property valued at more than $1,000 but less than $10,000, and theft of property valued at more than $10,000 but less than $60,000. The trial court determined that the defendant was a career offender and imposed a total effective sentence of 27 years' incarceration. In this appeal, the defendant challenges the sufficiency of the convicting evidence, claims that the indictments charging theft are multiplicitous, argues that the trial court erred in its jury charge, and contends that the trial court erroneously declared him a career offender. Because the evidence was insufficient to support the defendant's convictions, we reverse the judgments of the trial court and dismiss the charges in this case. To facilitate any further appellate review, we also conclude that the theft indictments were impermissibly multiplicitous, necessitating the dismissal of the defendant's conviction of theft of property valued at more than $1,000 but less than $10,000, and that the trial court erroneously classified the defendant as a career offender.

The Defendant-Appellant, Charles Haywood, was indicted by the Shelby County Grand Jury for one count of especially aggravated kidnapping, one count of attempted second degree murder, one count of aggravated robbery by use or display of a deadly weapon, and one count of possessing a firearm in the commission of attempted second degree murder. He entered an open guilty plea to one count of aggravated robbery, a Class B felony, as a Range I, standard offender, and the Shelby County Criminal Court sentenced him to twelve years of confinement in the Tennessee Department of Correction. On appeal, Haywood argues that his sentence is excessive. Upon review, we affirm the trial court's judgment.

Petitioner, Walter Himes, appeals the post-conviction court's dismissal of his post-conviction petition in which Petitioner alleged that his trial counsel rendered ineffective assistance of counsel, and that his guilty pleas were not voluntarily or knowingly entered. After a thorough review we affirm the judgment of the post-conviction court.

After a jury trial, Petitioner Alton Tappan was convicted of aggravated burglary and theft of property valued at $1,000 or more but less than $10,000. He was given an effective sentence of 14 years incarceration. His conviction was affirmed on appeal. He then filed a petition for post-conviction relief, claiming he received ineffective assistance of trial and appellate counsel. After an evidentiary hearing, the post-conviction court denied relief. We conclude that appellate counsel's failure to raise the issue of the trial court's failure to charge circumstantial evidence was deficient performance and that the failure was prejudicial. We therefore remand the case to the trial court for a new trial on the theft conviction. The judgment of the post-conviction court is affirmed in all other respects.

Defendant, John Wayne Wright, presents for review a certified question of law pursuant to Tennessee Rule of Criminal Procedure 37(b)(2). Defendant entered a plea of guilty to possession of more than 0.5 ounces of marijuana with the intent to sell, a Class E felony, and possession of drug paraphernalia, a Class A misdemeanor. The trial court sentenced Defendant to concurrent sentences of two years for his felony conviction and eleven months, twenty-nine days for his misdemeanor conviction. Both sentences were to be suspended and Defendant placed on probation after serving forty-five days in confinement. As a condition of his guilty pleas, Defendant properly reserved two certified questions of law concerning the stop and search of his vehicle and the subsequent search of his home. After a review of the record, we affirm the judgments of the trial court.

Following a jury trial, Defendant, Nader Daqqaq, was found guilty of driving under the influence ("DUI"). The trial court sentenced Defendant as a Range I, standard offender, to eleven months, twenty-nine days. The trial court ordered Defendant to serve nine months in confinement before being eligible for work release or trusty status. On appeal, Defendant argues that the evidence was insufficient to support his conviction. After a thorough review, we affirm the judgment of the trial court.

The defendant, Bryan Williams, was convicted of one count of second degree murder, a Class A felony; one count of attempted second degree murder, a Class B felony; and one count of reckless endangerment, a Class E felony. He was sentenced to twenty-three years for the Class A felony, ten years for the Class B felony, and two years for the Class E felony. All sentences were ordered to run consecutively, for a total effective sentence of thirty-five years. On appeal, he argues that the evidence was insufficient to support his convictions and that the trial court erred in failing to declare a mistrial following the testimony of one witness. After careful review, we affirm the judgments from the trial court.

The petitioner, David Bankston, appeals from the summary dismissal of his petition for writ of habeas corpus, alleging that the two-year sentence imposed for his 2007 conviction of ninth offense driving under the influence has expired. Because the petitioner has failed to establish that his sentence has, in fact, expired, or that he is otherwise entitled to habeas corpus relief, we affirm the denial of habeas corpus relief.

The defendant, Demetrie Darnell Owens, was convicted by a Marshall County jury of aggravated burglary, a Class C felony, and theft of property over $1000, a Class D felony, and was sentenced by the trial court as a Range II offender to an effective sentence of ten years in the Department of Correction. On appeal, he argues that the evidence was insufficient to sustain his convictions and that the trial court erred by imposing an excessive sentence. Following our review, we affirm the judgments of the trial court.

The defendant, David Henry Hammon, was convicted by a Davidson County jury of domestic assault and child abuse, both Class A misdemeanors, and was sentenced by the trial court to an effective term of eleven months, twenty-nine days to be served on supervised probation. On appeal, he argues that the trial court erred by denying his request for judicial diversion without considering and weighing all the appropriate factors. Following our review, we affirm the trial court's denial of judicial diversion but remand for the entry of corrected judgments to reflect that the defendant was sentenced to concurrent terms of eleven months, twenty-nine days for the child abuse conviction and six months for the domestic assault conviction as stated in the trial court's sentencing order.

The defendant, Randy Clayton Norman, was convicted by a Maury County Circuit Court jury of second degree murder, a Class A felony, and sentenced to twenty years in the Department of Correction. On appeal, he argues that: (1) he received the ineffective assistance of counsel; (2) the trial court did not perform its duty as the thirteenth juror; (3) the evidence is insufficient to sustain his conviction; and (4) the trial court erred in sentencing him. After review, we affirm the defendant's conviction but modify the defendant's sentence to fifteen years.

The Defendant, George Vincent Ware, pled guilty in the Hamilton County Criminal Court in two separate cases on September 27, 2007. In Case Number 262379, the defendant pled guilty to introduction of contraband in a penal institution, a Class C felony, and was sentenced as a multiple offender to seven years, suspended to "intensive probation." In Case Number 262471, the defendant pled guilty to theft of property, a Class D felony; criminal impersonation, a Class B misdemeanor; and driving on a revoked or suspended license, a Class A misdemeanor. The defendant was sentenced as a standard offender to three years, six months, and eleven months and twenty-nine days, respectively, for the convictions in Case Number 262471. The trial court ordered the sentences in Case Number 262471 to be served concurrently with one another but consecutively to the sentence imposed in Case Number 262379. Thus, the defendant received a total effective sentence of ten years. Following the filing of a probation violation warrant and a finding that the defendant violated the terms of his probationary sentence, the trial court revoked his probation and ordered the defendant to serve the balance of his sentence in custody. In this appeal as of right, the defendant contends that the trial court abused its discretion by ordering the dDefendant to serve his sentence. Following our review, we affirm the judgments of the trial court.