APPELLATE COURT OPINIONS

The defendant was convicted in two indictments of aggravated child abuse and sentenced to concurrent nine-year sentences. He timely appealed, arguing that the evidence was insufficient, that the trial court erred in consolidating the indictments, in permitting evidence as to other similar offenses, and in not properly instructing the jury as to various matters, including lesser-included offenses. We conclude that any errors in this regard were harmless. Accordingly, we affirm the judgment of the trial court.

I concur in the result reached and most of the reasoning used in the majority opinion.  However, I would hold that the defendant was entitled to an instruction on attempted aggravated child abuse under the evidence presented. As the majority opinion holds though, under State v. Williams, 977 S.W.2d 101, 106 (Tenn. 1988), the failure to give the instruction was harmless beyond a reasonable doubt.

Defendants James Whitelow and Robert Robertson appeal their convictions for possession of cocaine in an amount over 26 grams with intent to deliver. Both argue the evidence was not sufficient to support their convictions. Whitelow also argues the forensic report was erroneously admitted into evidence, and the jury's verdict was the result of passion and prejudice caused by the prosecutor's statements regarding Whitelow's alias nickname. We affirm the judgment of the trial court.

The Defendant, Ned Jackson,¹ was convicted by a jury of aggravated robbery, and the trial court sentenced him to ten years in the Tennessee Department of Correction. The Defendant now appeals, arguing the following: (1) that insufficient evidence of the Defendant’s identity as the culprit was presented to convict the Defendant of aggravated robbery and (2) that the trial court erred in refusing to instruct the jury on the lesser-included offenses of theft and aggravated assault. Finding no error, we affirm the judgment of the trial court.

The defendant was convicted of the premeditated first degree murder of his wife and sentenced to life imprisonment without the possibility of parole. In this appeal the defendant contends the evidence was insufficient to sustain his conviction. After a thorough review of the record, we affirm the judgment of the trial court.

While I agree with the majority’s conclusion that the evidence adduced at trial is sufficient to support the jury’s verdict of guilt of aggravated robbery, I respectfully disagree with its conclusion that the trial court properly declined to instruct the jury on lesser-included offenses.
Currently, members of this court are divided concerning the correct interpretation of the two-step process set forth by our supreme court in State v. Burns, 6 S.W.3d 453, 469 (Tenn. 1999), for determining if the evidence adduced at trial justifies jury instructions on lesser-included offenses. See, e.g., State v. Linnell Richmond, No. E2000-01545-CCA-R3-CD, 2001 WL 1222247 (Tenn. Crim. App. at Knoxville, October 15, 2001). I am largely in agreement with the position expressed by Judge Smith in his opinion in Richmond, No. E2000-01545-CCA-R3-CD, 2001 WL 1222247, at *21 (concurring in part and dissenting in part)(footnote omitted), that [a] reading of the recent cases of [State v. Bowles, 52 S.W.3d 69, 80 (Tenn. 2001), and State v. Ely, 48 S.W.3d 710, 724-725 (Tenn. 2001),] leads one to the inescapable conclusion that our high court has mandated that lesser-included offense instructions be given anytime the evidence is sufficient to support a conviction for these offenses. This means that anytime the proof is sufficient for a conviction of the indicted offense, the proof will a fortiori be sufficient for a conviction of the lesser-included offenses. . . . As a practical matter, this in turn means that it will almost always be error to fail to instruct the jury as to all lesser-included offenses of the indicted offense. Thus, the only real inquiry, in my opinion, in virtually all of the cases raising the lesser-included offense issue is whether the error in failing to instruct on the lesser offenses can be said to be harmless beyond a reasonable doubt.

The defendant, Darrin Fleming, was convicted of aggravated burglary, assault, and criminal responsibility for facilitation of robbery. The trial court imposed an effective sentence of six years. In this appeal of right, the defendant contends that the evidence was insufficient to support his convictions for aggravated burglary and assault and that the trial court erred by refusing to give a special instruction on criminal responsibility. The judgments of the trial court are affirmed.

The Petitioner filed a petition for post-conviction relief on December 11, 2000, in which he attacked convictions entered in September 1990 and upon which final appellate action was taken in 1992. The post-conviction court dismissed the petition without a hearing, because it was filed outside the
statute of limitations. Concluding that the post-conviction court erred by dismissing the petition without an evidentiary hearing, we reverse and remand to the post-conviction court for such a hearing.

The defendant, Mario A. Johnson, was convicted of facilitation to commit first degree murder and especially aggravated robbery. The trial court imposed a Range I sentence of 20 years for facilitation of first degree murder and a concurrent sentence of 23 years for especially aggravated robbery. In this appeal of right, the defendant challenges the sufficiency of the evidence. The judgments are affirmed.

The defendant, Joe Scott, was convicted of aggravated robbery. The trial court imposed a Range II sentence of 19 years. In this appeal of right, the defendant challenges the sufficiency of the evidence. The judgment is affirmed.

I respectfully dissent. Based upon the record before us, I believe that the trial court was justified in dismissing the petition without an evidentiary hearing. I do not believe that our supreme court intended in Williams v. State, 44 S.W.3d 464, 471 (Tenn. 2001), to provide a hearing for people in the petitioner’s situation. In Williams, the record indicated that Williams’ attorney’s actions may have led Williams to believe that supreme court review was timely sought, thereby potentially misleading him about when the statute of limitations would run.

The defendant, Clifton Shelton, pled guilty to simple possession of marijuana, a Class A misdemeanor. The trial court sentenced the defendant to 11 months and 29 days, requiring him to spend four months in a halfway house and the balance of his sentence on probation. The defendant argues that the trial court erred by failing to suspend his entire sentence. Because the trial court relied on the defendant's prior grant of judicial diversion in denying full probation, the judgment is modified and the cause is remanded to the trial court.

The Shelby County Grand Jury returned two indictments against the defendant, one for aggravated burglary and one for misdemeanor evading arrest. The trial court consolidated the indictments prior to trial pursuant to Tenn. R. Crim. P. 8(b). The defendant was found guilty of both charges by a Shelby County jury. In this appeal, the defendant contends (1) the evidence is insufficient to sustain his convictions; and (2) the trial court improperly consolidated the indictments. After a thorough review of the record, we affirm the judgments of the trial court.

The Appellant, Carlos Haywood, appeals from the dismissal of his petition for post-conviction relief. Haywood was convicted by a Shelby County Criminal Court Jury of felony murder and attempted especially aggravated robbery, and was sentenced to life imprisonment plus ten years. On appeal, Haywood argues that he received ineffective assistance of counsel. After review, we affirm the judgment of the post-conviction court dismissing the petition.

The appellant, Charles David Vanderford, appeals the order of the Circuit Court of Hardin County revoking the community corrections sentences that he received following his convictions by a jury of two counts of possession of a controlled substance with intent to sell. The appellant challenges the trial court's reliance upon his commission of crimes during the pendency of his appeal from his convictions of felony drug possession and prior to the commencement of his community corrections sentences. Following a review of the record and the parties' briefs, we affirm the judgment of the trial court.

In 1995, the Defendant pled guilty to four felony drug charges for which he received three concurrent eight-year sentences and one concurrent five-year sentence, to be served on Community Corrections. Subsequently, the trial court revoked the Defendant's Community Corrections sentences and ordered him to serve twelve years in the Tennessee Department of Correction. The Defendant now appeals, alleging that the trial court lacked jurisdiction to re-sentence the Defendant and that the twelve year sentence was improperly imposed. Finding no error, we affirm the judgment of the trial court.

The defendant, Kenneth L. Boggs, appeals his Davidson County Criminal Court conviction of unlawful possession of a handgun, a Class E felony. He complains on appeal that the trial court erred in not addressing the prosecutor's exploitation of the defendant's exercise of his right to remain silent following his arrest. Finding no error requiring reversal, we affirm the conviction.

The defendant appeals from a conviction of theft of property over one thousand dollars. The sole issue presented for review is the sufficiency of the evidence to establish the value element of the offense. We conclude that the testimony by the owner of the stolen property was sufficient for the jury to find that the fair market value of the property was over one thousand dollars. The judgment of the trial court is affirmed.

Following transfer to circuit court for trial as an adult, the juvenile defendant, Waldo Wiggins, Jr., was convicted of first degree murder. On appeal, Defendant challenges (1) whether the denial of bail by the juvenile court and subsequent bond of $ 250,000 set by the circuit court violated his right to due process of law, and (2) whether the evidence was sufficient to support his conviction. After a review of the record, we affirm.

On September 25, 2000, the Defendant, Jerry Damon Williams, entered a plea of guilty to driving under the influence of alcohol in violation of Tennessee Code Annotated section 55-10-401. Pursuant to Rule 37 (b)(1)(i) of the Tennessee Rules of Criminal Procedure, the Defendant sought to reserve a certified question of law to be reviewed by this Court. In this appeal, the Defendant contends that (1) he properly reserved the certified question of the validity of the police's initial investigatory stop and (2) the trial court erred in denying his motion to suppress evidence discovered as a result of the investigatory stop. We vacate the Defendant's conviction and dismiss the case.

The Defendant, Charles William Jones, was convicted of second degree murder in the Criminal Court of Davidson County. After a sentencing hearing, the trial court sentenced the Defendant to twenty-two years in the Department of Correction. In this appeal, the Defendant contends that (1) the evidence presented at trial was insufficient to support a finding of guilt beyond a reasonable doubt and (2) the trial court improperly applied two enhancement factors in sentencing the Defendant. We affirm the judgment of the trial court.

The petitioner, Perry Saleem Lee, appeals the dismissal of his petition for post-conviction relief by the Williamson County Circuit Court, which held that the petitioner's claims for relief had been either previously determined or waived. The petitioner complains about his appointed counsel and the state's purported shortcomings in the post-conviction process. He also complains about the trial court not allowing an amendment to the petition, not allowing an evidentiary hearing, and not setting forth findings of fact and conclusions of law as to each ground he raised. We affirm the trial court.

The defendant, Jared M. Barnes, was convicted upon his guilty plea for vehicular homicide by recklessness, a Class C felony. The trial court sentenced him as a Range I, standard offender to five years, with ten months, day for day, to be served in the county jail and the remainder of the sentence to be served on probation. In addition, the trial court suspended the defendant's driving privileges for five years and ordered that he complete five hundred hours of community service. The defendant appeals his sentence, contending that the trial court erred in denying him judicial diversion or full probation. We affirm the trial court's denial of judicial diversion and full probation, but hold that the order that the defendant serve his ten-month incarceration day for day does not preclude use of applicable conduct credits.

The petitioner, James Thomas Page, appeals as of right from the Chester County Circuit Court's denial of his petition for post-conviction relief. The petitioner pled guilty to second degree murder, a Class A felony, and received the agreed, forty-year sentence as a 100% violent offender. He contends that he received the ineffective assistance of counsel and that he did not understand what was happening at the guilty plea hearing. We affirm the trial court's denial of the petition.