APPELLATE COURT OPINIONS

The defendant, Kelly Layne, appeals his conviction for selling a counterfeit controlled substance, a Class E felony, for which he was sentenced to one year, eight months, all but ninety days to be served in a community corrections program, and fined $2,500. He contends that venue was not proven and that his sentence is excessive. We affirm the conviction and sentence, except we reduce the fine to $1,500.

After a jury trial, Defendant, Darrin Bryant, was convicted of attempted first degree murder. Subsequently, he was sentenced to twenty-five (25) years, Range I, Standard Offender in the Department of Corrections. In this appeal as of right, Defendant asserts that the trial court erred in sentencing Defendant to the maximum sentence of twenty-five (25) years by inappropriately applying an enhancement factor; and the State failed to present sufficient evidence to justify a rational trier of fact in finding beyond a reasonable doubt, that the assault was an attempt to commit premeditated murder. We conclude that the evidence was sufficient to support the conviction and that the trial court did not err in sentencing Defendant to the maximum of twenty-five (25) years in the Department of Corrections.

The defendant was convicted of second degree murder by a Shelby County jury in the shooting death of his girlfriend. He was sentenced to twenty years as a standard offender, with his sentence to be served without parole eligibility in the Tennessee Department of Correction. In this appeal as of right, the defendant raises one issue: whether the trial court erred in admitting the testimony of the mother of the victim concerning a prior alleged assault on the victim by the defendant. We conclude that the evidence was admissible, having satisfied all three conditions for admissibility of evidence of prior bad acts pursuant to Tennessee Rule of Evidence 404(b)(1)-(3). The judgment of the trial court is affirmed.

I join with Judge Ogle in concluding that the Appellant's double jeopardy rights were not violated. I would also make the observation that, similar in purpose to the DUI statute, the stated public policy purpose in enacting the Motor Vehicle Habitual Offender Act was to remove from the highways those offenders who have "demonstrated their indifference to the safety and welfare of others." Tenn. Code Ann. § 55-10-602(2).

The defendant, David Scarbrough, was convicted of two counts of felony murder, two counts of theft, and aggravated burglary. The trial court imposed sentences of life imprisonment with the possibility of parole for each of the murders, a sentence of six years for the aggravated burglary and sentences of 11 months, 29 days for each of the thefts. All sentences are to be served consecutively. In this appeal of right, the defendant presents the following issues for review: (1) Whether the evidence was sufficient to support the convictions; (2) whether the defendant's statement to police was made knowingly and voluntarily; (3) whether the trial court erred by denying the defendant's challenge for cause of a juror; (4) whether the trial court erred by denying defendant's motion for continuance; (5) whether the trial court erred by refusing a jury instruction on facilitation of felony murder; (6) whether the trial court erred by admitting photographs of the crime scene; (7) whether the trial court erred by refusing to permit a private investigator to testify; (8) whether the trial court properly refused to allow the testimony of a psychologist during the guilt phase of trial; (9) whether the sentences were excessive; and (10) whether the trial court erred by denying the defendant's motion for a writ of error coram nobis based on newly discovered evidence. Because the trial court erred by failing to instruct on the lesser included offense of facilitation of felony murder and because such error was not harmless beyond a reasonable doubt, the felony murder convictions are reversed and the causes are remanded for a new trial. The remaining convictions are affirmed.

Daniel Thomason appeals from the aggravated robbery conviction he received at a jury trial in the Davidson County Criminal Court. Thomason is serving an eight-year sentence in the Department of Correction for his crime. In this appeal, he challenges the sufficiency of the convicting evidence that he accomplished the robbery “by display of any article used or fashioned to lead the victim to reasonably believe it to be a deadly weapon.” Because the record before us is does not contain all of the relevant evidence presented at trial, we are precluded from reviewing the sufficiency of the evidence and therefore affirm.

The Defendant, Michael Thomas, appeals as of right from the denial of post-conviction relief after an evidentiary hearing. On appeal, he asserts that his guilty plea was not knowing and voluntary and that he was denied the effective assistance of counsel. We find no merit to the Defendant's assertions; thus, we affirm the judgment of the trial court.

The appellant, Russell Allen, was convicted in the Maury County Circuit Court of one count of aggravated sexual battery and was sentenced as a Range I offender to eight years incarceration in the Tennessee Department of Correction. On appeal, the appellant raises the following issue for our review: whether the trial court erred in failing to grant the appellant a new trial based upon newly discovered evidence. Upon review of the record and the parties' briefs, we affirm the judgment of the trial court.

The Defendant pled guilty without a plea agreement to theft of property valued at more than $500.00 and to identity theft. Following a sentencing hearing, the trial court sentenced her to concurrent sentences of one year incarceration for the theft of property conviction and three years incarceration for the identity theft conviction. In this appeal as of right, the Defendant argues that the trial court should have granted her some form of alternative sentencing. Because we conclude that the sentence imposed is adequately supported by the record, we affirm the judgment of the trial court.

The defendant, James L. Hunsaker, was charged with ten counts of rape of a mentally defective victim, Class B felonies, in violation of Tenn. Code Ann. § 39-13-503. The defendant filed a motion to dismiss the first nine counts of the indictment, involving offenses alleged to have occurred between the autumn of 1992 and the spring of 1994, as barred by the statute of limitations. The trial court ruled that concealment was inherent in the victim’s mental defect and that the statute of limitations was tolled. See Tenn. Code Ann. § 40-2-101. The defendant filed a motion for interlocutory appeal to this court. Because the first nine counts of the indictment are barred by the statute of limitations, the judgment of the trial court is reversed. Each of the nine counts is dismissed.

The Appellant, Jeffrey Scott Petty, was indicted by a Bedford County Grand Jury for one count of driving under the influence. On May 30, 2000, a jury convicted the Appellant of DUI, first offense, a class A misdemeanor. On that same day, the trial court sentenced the Appellant to eleven months, twenty-nine days, all suspended except for thirty days incarceration. The trial court further ordered that the thirty days be served periodically on weekends. On appeal, the Appellant raises one issue for our review: Whether the trial court properly ordered the Appellant to serve thirty days of his eleven month, twenty-nine day sentence in periodic incarceration. Upon review, we find no error. Thus, the judgment of the Bedford County Circuit Court is affirmed.

The petitioner, Daniel M. Banks, appeals the trial court's denial of his petition for post-conviction relief. Because the petitioner was provided the effective assistance of counsel and knowingly and voluntarily entered his pleas of guilt to possession of marijuana with intent to sell, possession of over 0.5 grams of cocaine with intent to sell, and possession of drug paraphernalia, the judgment is affirmed.

The defendant appeals from the trial court's denial of probation or some other form of alternative sentencing. After a review of the record, we affirm the trial court's judgment.

The petitioner, Eddie F. Depriest, appeals as of right from the Wayne County Circuit Court's dismissal of his petition for habeas corpus relief. Petitioner claims that the circuit court lacked the necessary jurisdiction to convict him because he was a juvenile when he committed the offense and a proper transfer hearing had not been conducted. After a review of the record, we affirm the judgment of the trial court.

The defendant, Latroy W. Askew, appeals from the order of the Knox County Criminal Court which revoked Defendant's probation and required him to serve his sentence in the Tennessee Department of Correction. Having reviewed the record and the briefs submitted by the parties, we affirm the judgment of the trial court.

The sole issue in this appeal is whether the trial court erred when it admitted into evidence a booking record purportedly containing the defendant's fingerprints. The defendant contends that the booking record is hearsay and not admissible under the business records exception to the hearsay rule. After a thorough review of the record, we conclude that the introduction of the defendant's booking record into evidence was proper as a business record. The judgment of the trial court is affirmed.

In September 1991, the Defendant pled guilty to aggravated assault and possession of a weapon with intent to employ it in the commission of aggravated assault. The Defendant was sentenced to six years for the aggravated assault conviction and to two years for the weapon conviction. The sentences were to run consecutively, for an effective sentence of eight years, with six months to be served in jail and the remainder to be served on intensive probation. Following several probation violation reports, the trial court revoked the Defendant's probation. The Defendant now appeals, arguing that the trial court erred in revoking his entire eight-year probated sentence when his six-year sentence had expired prior to the issuance of the probation revocation warrant. Finding that the probation revocation warrant was not timely filed as to the aggravated assault conviction, we reverse the judgment of the trial court revoking the Defendant's probation for that count. Finding that the probation revocation warrant was timely filed as to the weapons conviction, we affirm the judgment of the trial court revoking the Defendant's probation for that count.

The Defendant pled guilty in 1999 to ten counts of forgery committed in Bedford County. Following a sentencing hearing, the trial court sentenced the Defendant as a Range II multiple offender to an effective sentence of six years, four months incarceration. In this direct appeal, the Defendant argues that she was improperly sentenced. Having reviewed the record, we conclude that the Defendant's sentence is appropriate and therefore affirm the judgment of the trial court.

A McMinn County jury convicted the defendant of first degree murder in perpetration of aggravated child abuse and, following a sentencing hearing, sentenced the defendant to life without the possibility of parole. In this appeal, the defendant alleges (1) the evidence was insufficient to sustain his conviction; (2) a juror was improperly dismissed for cause; (3) prejudicial statements were made by a juror during voir dire; (4) evidence of the defendant's prior criminal conduct was improperly admitted; (5) prejudicial photographs of the victim were improperly admitted; (6) the state improperly commented on the defendant's failure to testify; (7) the jury was improperly instructed concerning the definition of "knowingly;" (8) the trial court failed to properly instruct the jury on lesser-included offenses; (9) the trial court improperly imposed a life sentence without the possibility of parole due to inadequate notice by the state; (10) the jury was improperly instructed concerning the minimum length of a life sentence; and (11) the verdict forms failed to comply with the statutory requirements. Although we affirm the conviction, we find that the trial court improperly instructed the jury during the sentencing phase that the minimum length of a life sentence is twenty-five years. Accordingly, we remand this case to the trial court for a new sentencing hearing.

The appellant, Lee Roy Gass, was convicted by a jury in the Hamblen County Criminal Court of one count of aggravated rape, one count of burglary, and one count of official misconduct. The trial court sentenced the appellant as a Range I violent offender to twenty-two years incarceration in the Tennessee Department of Correction for the aggravated rape conviction and as a Range I standard offender to four years incarceration in the Department for the burglary conviction and to two years incarceration for the official misconduct conviction. The trial court ordered concurrent service of the appellant's sentences, resulting in an effective sentence of twenty-two years incarceration. In this appeal, the appellant presents the following issues for our review: (1) whether the evidence adduced at trial is sufficient to support his convictions; (2) whether the trial court erred in sustaining the State's objection to testimony by a defense witness concerning the victim's neighbor, Patricia Costner; (3) whether newly discovered evidence warrants the reversal of the appellant's convictions and the remand of this case for a new trial; and (4) whether the trial court erred in sentencing the appellant. Following a review of the record and the parties' briefs, we affirm the judgments of the trial court in the aggravated rape and burglary cases and affirm as modified the judgment in the official misconduct case.

The defendant, Albert Eugene Pleasant, appeals his Warren County Circuit Court jury conviction for first degree murder in connection with the shooting death of his girlfriend on June 9, 1996. In this direct appeal, he contests the sufficiency of the conviction evidence and challenges the admissibility of photographs of the victim taken post-mortem and of evidence of prior threats and physical abuse of the victim by the defendant. After a review of the record, the briefs of the parties, and the applicable law, we affirm the judgment of the trial court.

The petitioner appeals the denial of his petition for post-conviction relief. Specifically, he asserts that he received ineffective assistance of counsel because trial counsel failed to inform him of charges against the victim of the crime. He claims that had he known about the charges against the victim, he would not have pled guilty. After review, we affirm the judgment of the post-conviction court.

On appeal, the issue is whether a defendant, who pled guilty pursuant to a plea agreement that allowed for a request for judicial diversion, may be sentenced by the trial court to additional time over and above the negotiated plea agreement in the event the Defendant violates the terms and conditions of judicial diversion. We hold the answer to be yes. Further, after a careful review we conclude that the trial court properly sentenced the Defendant. The Defendant’s sentence is affirmed.

Respectfully, I must concur only in the results of the majority’s holding that the trial court was authorized to impose two-year sentences upon revocation of the judicial diversion probation, even though the parties’ plea agreement specified one-year sentences.

The Appellant, William Greer, was indicted on one count of theft of property under $500, one count of fraudulent use of a debit card, and one count of misdemeanor assault. Prior to trial, the assault charge was severed. A Coffee County jury found the Appellant guilty of one count of fraudulent use of a debit card, a class A misdemeanor. The Appellant was sentenced to ninety (90) days in the Coffee County jail. Greer appeals his conviction contending that (1) the evidence is insufficient to support his conviction and (2) the unsolicited comments of the victim relating to the Appellant's severed charge of assault resulted in reversible error. After review of the record and the applicable law, we affirm the judgment of the trial court.