APPELLATE COURT OPINIONS

On appeal, the defendant challenges (1) the sufficiency of the evidence to support the verdicts, and (2) the trial court’s denial of his request for a mistrial. Following our review, we conclude that the evidence presented was sufficient to support the jury’s verdict and that the trial court did not abuse its discretion in denying the defendant’s request for a mistrial. We affirm the judgments of the trial court.

On appeal, the defendant contends that: (1) the trial court erred in ruling that he could not use his peremptory challenges to “strike back” jurors after the first two rounds of challenges; and (2) the State failed to comply with Tennessee Rule of Criminal Procedure 16, by failing to disclose a letter written by the defendant to his girlfriend, thus disadvantaging his trial preparation. Upon our review, we affirm the defendant’s conviction.

Separate petitions for the appointment of conservator were filed, one by the two nieces of the disabled person and the other by a daughter. Notwithstanding the statutory preference given to the daughter, the probate court determined that it was in the best interest of the disabled person to grant the petition filed by the nieces. We affirm.

The limited partners ("the plaintiffs") of Henry Manor, Ltd., a Tennessee limited partnership ("the Partnership"), brought this declaratory judgment action against (1) Roy J. Gilleland and J. Cleve Smith, the Partnership's former administrative general partners, and (2) the trust created by the Partnership's former, and now-deceased, managing general partner, Glen R. Claiborne. The plaintiffs seek relief related to the Partnership's property, as well as an accounting and an order for distribution of proceeds. In 1992, Claiborne and his wife formed the G & P Claiborne Trust ("the Trust"), to which they transferred, among other assets, Claiborne's beneficial interest in the Partnership. Claiborne died in 1997. The apartment complex owned by the Partnership, which was its primary asset, was sold in 2000. Subsequently, Gilleland and Smith sought a percentage of the proceeds from the sale pursuant to the terms of the partnership agreement. The plaintiffs aver, among other things, (1) that Gilleland and Smith are not entitled to any of the proceeds from the 2000 sale, as they resigned from the partnership in 1982, and (2) that the Partnership was dissolved in 1992 when Claiborne transferred his interest to the Trust. The parties filed competing motions for summary judgment. The trial court held that Gilleland and Smith are entitled to share in the proceeds of the 2000 sale; that the Partnership did not dissolve until the death of Claiborne in 1997; and that the plaintiffs are not required to pay capital contributions that came due in 1983 and 1984. We agree with the trial court that Gilleland and Smith are entitled to share in the sale proceeds under the terms of the original partnership agreement. We further agree with the trial court that the Trust's claim against the plaintiffs for unpaid capital contributions is barred by the applicable statute of limitations. Although we disagree with the trial court's judgment that Claiborne did not violate the partnership agreement by transferring a part of his interest in the Partnership to the Trust in 1992, we hold that the transfer, while a violation of the agreement, does not constitute an event of dissolution. We affirm the trial court's judgment that the Partnership did not dissolve until 1997.

The defendant, William Belchia, was convicted by a Shelby County Criminal Court jury of theft of property over $1000 but less than $10,000, a Class D felony, for failing to return a rental car. He was sentenced as a career offender to twelve years in the Department of Correction. In a timely appeal to this court, he argues that the State failed to prove beyond a reasonable doubt that he intended to deprive the rental car company of its property and that the trial court erred by not instructing the jury on the temporary taking of a vehicle, Tenn. Code Ann. § 55-5-104, as a lesser-included offense of theft of property. Following our review, we affirm the judgment of the trial court.

The Defendant, Larry Porter, was convicted of aggravated assault, and the trial court sentenced the Defendant to eight years, as a multiple offender. On appeal, the Defendant contends that: (1) the evidence is insufficient to sustain his conviction; and (2) the trial court erred when it sentenced him.  Finding no reversible error in the judgment of the trial court, we affirm the Defendant’s conviction and sentence.

The Tennessee Department of Children’s Services began providing services to the biological parents of three minor children in December of 2000. Eventually, all three children were removed from the home after the juvenile court determined they were dependent and neglected due to the parents’ failure to provide for their medical and nutritional needs. The department created a permanency plan for each child calling for the parents to provide adequate housing, provide for the children’s medical and nutritional needs, undergo a psychological evaluation and follow through with treatment recommendations, and participate in counseling/parenting classes designed to teach the parents how to adequately provide for their children. The department subsequently filed a petition to terminate the biological parents’ parental rights, alleging the grounds of abandonment, substantial noncompliance with the responsibilities in the permanency plans, persistent conditions, and the mother’s alleged mental incompetency. Following a trial, the juvenile court entered an order terminating the biological parents’ parental rights to their minor children. The juvenile court found that the department proved by clear and convincing evidence that the parents abandoned the children, substantially failed to comply with the responsibilities in the permanency plans, and allowed conditions to persist which made it unsafe to return the children to the parents. In addition, the juvenile court found that terminating the parents’ parental rights was in the children’s best interest.  Only the mother filed an appeal to contest the juvenile court’s judgment. We affirm.

The issues presented by these consolidated Rule 9 interlocutory appeals are whether Tennessee's sexual exploitation of a minor statute is constitutional in light of Ashcroft v. Free Speech Coalition, 535 U.S. 234, 122 S. Ct. 1389 (2002), and whether the trial court may require the State to provide the defense with a copy of the alleged child pornography that forms the basis for the prosecution's case. As to these questions, the trial courts ruled that the State had to provide the defense with copies of the alleged pornographic materials and that while a portion of the statute is unconstitutional, the remainder is not. Following our review, we affirm the rulings of the trial courts.

This is a boundary line dispute. C. W. McMahan (“the plaintiff”) and Barbara Jean Greene (“the defendant”) owned adjacent tracts of land. Both parties received their respective tracts through a complicated chain of title. When a dispute arose as to the location of the boundary line, the plaintiff brought this action seeking to clear title. Following a bench trial, the trial court found for the plaintiff. The defendant appeals. We affirm.

The defendant, Howard Walter Thomas, was convicted of first degree premeditated murder; especially aggravated robbery, a ClassAfelony; especially aggravated kidnapping, a Class A felony; and attempted first degree murder, also a Class A felony. He was sentenced to life imprisonment for the first degree murder conviction and sentenced as a Range I, standard offender to twenty-two years for the especially aggravated robbery conviction, twenty-two years for the especially aggravated kidnapping conviction, and twenty-five years for the attempted first degree murder conviction, with the twenty-two-year sentences to be served concurrently and the twenty-five-year sentence to be served consecutively, for an effective sentence of life plus twenty-five years. On appeal, the defendant raises the following claims: (1) the circumstances surrounding his identification by one of the victims amounted to prejudicial error; (2) the trial court erred by allowing the State to exercise a peremptory challenge based on the juror’s learning disability, by utilizing the pattern jury instructions on the element of deliberation, by proceeding with a death-qualified jury after the State withdrew its intent to seek the death penalty post-trial, and by failing to provide any weight to the mitigating factor of childhood/family background in sentencing for the attempted first degree murder conviction; (3) the evidence was insufficient to support a verdict of guilt with respect to the element of deliberation; (4) the death penalty is unconstitutional under the Tennessee and United States Constitutions; and (5) that cumulative error denied the defendant a fair trial.  Following our review, we affirm the convictions but, in light of the subsequent decision of the United States Supreme Court in Blakely v. Washington, 542 U.S. __, 123 S. Ct. 2531 (2004), reduce the sentences for attempted first degree murder, especially aggravated robbery, and especially aggravated kidnapping to twenty-one years, eighteen years, and eighteen years, respectively. We affirm the consecutive sentencing of the defendant.

The petitioner, Jerry Allen Millsaps, challenged his 1998 Monroe County Criminal Court jury conviction of first degree murder via filing the October 1, 2001 post-conviction relief proceeding now under review. The post-conviction court conducted an evidentiary hearing and dismissed the post-conviction petition. On appeal, the petitioner claims that the conviction was the result of ineffective assistance of counsel and that the post-conviction court erred in dismissing the petition. We disagree and affirm the dismissal.

The defendant pled guilty in the Lincoln County Circuit Court to eleven counts of forgery, eleven counts of transferring a forged instrument, sale of more than .5 grams of cocaine, delivery of more than .5 grams of cocaine, and aggravated perjury. The trial court merged the forgery convictions with the transferring a forged instrument convictions and sentenced the defendant as a Range I, standard offender to one year on each count, to be served concurrently. He was sentenced to ten years for the sale of cocaine conviction, which the trial court merged with the delivery conviction, to be served concurrently with the forgery sentence, and four years for the aggravated perjury conviction, to be served consecutively to the sale of cocaine sentence, for a total effective sentence of fourteen years. On appeal, he alleges the trial court erred in applying several enhancement factors in violation of the recent United States Supreme Court case, Blakely v. Washington, and in not sentencing him to the community corrections program. Following our review, we affirm the sentences but remand for entry of corrected judgments in all three cases to reflect the conviction offenses, which were omitted, and to reflect the correct offense date in Case No. S0300119.

The Defendant, Carl McIntosh, was convicted by a jury for: the sale of 0.5 grams or more of cocaine on October 5, 2001, the delivery of 0.5 grams or more of cocaine on October 5, 2001; and two counts of simple possession on October 9, 2001. The trial court sentenced the Defendant as a Range I,
standard offender, to an effective sentence of twelve years, eleven months and twenty-nine days. On appeal, the Defendant contends that: (1) the trial court erred in admitting the forensic chemistry report dated October 31, 2001 into evidence; (2) the trial court erred in ordering his sentences for the current offenses to be served consecutively; (3) the trial court erred in ordering the Defendant’s misdemeanor sentence to run consecutively to his paroled sentences; and (4) the trial court’s enhancement of the Defendant’s misdemeanor and felony sentences beyond the presumptive minimum sentence violated the rule set forth in Blakely v. Washington, ___ U.S. ___, 124 S. Ct. 2531 (2004). After a thorough review of the record, we affirm the Defendant’s convictions and sentences.

We granted this appeal to determine whether an adult who hosts a party for minors and knows in advance that alcohol will be consumed has or may voluntarily assume a duty of care towards the minor guests. We hold that the defendant adult host had such a duty of care even though he did not furnish any alcohol. We also hold that the trial court did not err in excluding evidence regarding the minor plaintiff’s prior alcohol-related offenses and her prior experience with alcohol and that the trial court did not err in determining that the plaintiff’s sister was not at fault as a matter of law pursuant to Tennessee’s statutory shield for furnishers of alcoholic beverages. The Court of Appeals affirmed the trial court in all respects. We affirm the result reached by the Court of Appeals on the separate grounds set forth herein.

The majority concludes that modification of the defendant’s sentence is required in light of Blakely v. Washington, 542 U.S. __, 124 S. Ct. 2531 (2004). I must respectfully dissent.

The defendant was convicted of theft of property greater than $1,000 but less than $10,000, a Class D felony, and was sentenced as a career offender to twelve years in the Department of Correction.  On appeal, the defendant raises the following issues: (1) whether the evidence was sufficient to sustain his conviction; and (2) whether the trial court erred in granting the State a continuance over the defendant’s motion to dismiss, in not granting the defense a continuance because of a missing witness, in limiting cross-examination of a witness, in denying a continuance due to a witness who was not subpoenaed, in not allowing the testimony of two witnesses at the hearing on the motion for a new trial, and in sentencing the defendant as a career offender. Finding the evidence sufficient to support the conviction and no reversible error, we affirm the judgment of the trial court.

The Defendant, Carlos Sommerville, was convicted of second degree murder, first degree felony murder, and attempted first degree murder. On appeal, the Defendant contends that: (1) the evidence is insufficient to sustain his convictions; and (2) the trial court erred when it admitted certain autopsy x-rays and photographs into evidence at trial. Finding no error, we affirm the judgments of the trial court.

I concur in all parts of the majority opinion except to that portion which holds that the felony sentence imposed in violation of Blakely v. Washington, 542 U.S. ___, 124 S. Ct. 2531 (2004) is harmless error beyond a reasonable doubt.

James Neil Rice ("Mr. Rice") applied to Mountain Life Insurance Company ("Mountain Life") for a credit life insurance policy to cover the principal amount of a loan made to him by Andrew Johnson Bank ("the Bank"). When Mr. Rice died, Randy E. Rice, Personal Representative of the Estate of James Neil Rice ("Plaintiff"), made demand upon Mountain Life and the Bank to tender the policy proceeds to satisfy the loan. When Mountain Life and the Bank refused this demand, Plaintiff filed suit. Both Mountain Life and the Bank filed motions for summary judgment. The Trial Court granted the motions for summary judgment holding, inter alia, that no contract of insurance existed because Mr. Rice's application never was approved or accepted by Mountain Life and, therefore, no insurance policy was issued to Mr. Rice. Plaintiff appeals the grant of summary judgment. We vacate and remand.

The petitioner pled guilty to one count of second degree murder and one count of aggravated assault on February 7, 2003. The trial court sentenced him to twenty (20) years and five (5) years, respectively, for the above convictions. The petitioner filed a petition for post-conviction relief. The trial court held a hearing and stated upon the record that the petition was denied. However, a written order was never entered by the trial court. Because there is no final order from which the petitioner may appeal, we dismiss the appeal.

This case involves a contract dispute between a retail seller and manufacturer of hair replacement products. The parties entered into an exclusive dealing contract, whereby the manufacturer agreed to sell four models of hair replacement units exclusively to the retailer within a geographically defined area of Tennessee. In return, the retailer agreed to purchase all hair replacement units from themanufacturer and paya $10.00 premium for the units purchased. The manufacturer subsequently sold hair replacement units to a competitor of the retailer in Tennessee. The retailer filed a complaint against the manufacturer for inducement of breach of contract, pursuant to section 47-50-109 of the Tennessee Code, and breach of contract. The manufacturer moved for summary judgment, and the trial court granted the motion as to both causes of action alleged in the complaint.  We affirm.

The Defendant was found guilty by jury verdict of domestic assault, a Class A misdemeanor. He was sentenced to eleven months and twenty-nine days with the sentence suspended, conditioned upon his successful completion of probation. The Defendant now appeals, raising three issues: (1) there was insufficient evidence to support his conviction for domestic assault; (2) the trial court erred by not instructing the jury to elect the particular offense the Defendant was guilty of; and (3) the Defendant suffered a due process right violation when he was denied immediate access to his personal property. We affirm the judgment of the trial court.

Don Smith Ford, Lincoln-Mercury, Inc. sued Doug Bolinger based upon theories of negligent misrepresentation, breach of contract and violations of the Tennessee Consumer Protection Act ("the TCPA"). The plaintiff averred that the defendant failed to disclose substantial body damage to his vehicle, which vehicle the defendant traded to the plaintiff in connection with his purchase from the plaintiff of a new Ford Explorer. The defendant denied the plaintiff's allegations and filed a third-party complaint against previous owners of the vehicle, Gary Hoese, dba Gary's Used Cars ("Hoese") and East Gate Motors, Inc. ("East Gate"). The defendant's third-party complaint is based upon alleged common law violations and upon the theory that Hoese and East Gate violated the TCPA in failing to disclose the condition of the vehicle's title. The trial court found that the defendant was liable to the plaintiff for negligently misrepresenting the condition of the vehicle and awarded it damages in the amount of $17,085. In addition, the trial court dismissed the defendant's third-party claims against Hoese and East Gate and, without stating the basis of its action, awarded attorney's fees to them, as well as to the plaintiff. The defendant appeals, arguing, inter alia, that the trial court erred in finding him liable for negligent misrepresentation; that the trial court erred in failing to hold Hoese and East Gate liable to the defendant; and that the trial court's awards of attorney's fees was improper. We vacate the trial court's fee awards to the plaintiff, Hoese, and East Gate pending further proceedings in the trial court. The balance of the trial court's judgment is affirmed.

The Defendant, William D. Busby, was convicted by a jury of four counts of rape of a child. The trial court subsequently sentenced him to four concurrent terms of twenty years in the Department of Correction. In this direct appeal, the Defendant contends that the trial court committed reversible error by failing to instruct the jury about the State's election of offenses. Finding that the trial court's error was harmless beyond a reasonable doubt, we affirm the judgments of the trial court.

This is a parental termination case involving a mother with a documented history of severe mental illness. The Department of Children’s Services filed a petition to terminate the mother’s parental rights to her minor son in February 2002, alleging the grounds of persistent conditions and failure to substantially comply with the permanency plans. The department filed an amended petition in August 2002, seeking to terminate the mother’s parental rights to her minor daughter based upon the same grounds. In September 2002, the department filed another amended petition alleging as an additional ground for termination the mother’s mental incompetence. Following a hearing over two non-consecutive days, the chancery court entered an order finding the department had proven all the grounds it alleged for terminating the mother’s parental rights by clear and convincing evidence, and terminating the mother’s parental rights would be in the children’s best interest. While we disagree with the trial court’s finding that DCS proved each ground for termination by clear and convincing evidence, we affirm the chancery court’s decision to terminate the mother’s parental rights.