APPELLATE COURT OPINIONS

The Defendant, Walter Martin, was convicted of rape, a Class B felony, and sentenced to ten years at 100% in the Department of Correction. On direct appeal, he argues that the evidence was insufficient to establish Shelby County as the proper venue for his trial and that he was erroneously sentenced. Following our review, we affirm the judgment of the trial court and the Defendant’s sentence but remand for correction of two clerical errors made in the judgment of conviction.

The defendant, Adrian Porterfield, was convicted by a Shelby County jury of voluntary
manslaughter, a Class C felony, and was sentenced to serve four years and six months in the county workhouse as a Range I, standard offender. On appeal, the defendant challenges the trial court’s judgment on grounds that: (1) the evidence was insufficient to support his conviction; (2) the trial erred in admitting a hearsay statement by the victim; (4) the trial court erred in not allowing evidence of drugs found on the victim’s body; (5) the trial court erred in not allowing testimony of a statement the victim made to police regarding his involvement in a robbery of the defendant; (6) the trial court erred in denying alternative sentencing; and (7) the length of his sentence is excessive. We affirm the trial court but remand the case for a corrected judgment because the sentence imposed in the judgment conflicts with the sentence reflected in the sentencing hearing transcript.

The defendant, Richard Yarbrough, was convicted by a Knox County jury of the sale of less than 0.5 grams of cocaine, the delivery of less than 0.5 grams of cocaine, and possession of drug paraphernalia. The convictions for sale and delivery were merged, and the defendant was subsequently sentenced to eleven years for that conviction and eleven months and twenty-nine days for the paraphernalia conviction, with the sentences to run concurrently. On appeal, he contends that: the evidence was insufficient to convict him for the sale and delivery of cocaine because the sale was incomplete; the trial court erred in allowing a bag containing rock cocaine-like pieces of evidence to be introduced during trial; and the trial court erred in sentencing. After review, we conclude that no error exists and affirm the judgment from the trial court.

I fully concur in the judgment of the Court that Appellant’s convictions and sentences should be affirmed. However, I disagree with the majority’s rationale concerning the striking by the trial court of Ms. Taylor’s testimony that she had never seen her husband intoxicated.

This workers’ compensation appeal has been referred to the Special Workers’ Compensation Appeals Panel of the Supreme Court in accordance with Tennessee Code Annotated section 50-6-225(e)(3) for hearing and reporting to the Supreme Court of findings of fact and conclusions of law. The employee asserts that the trial court erred in awarding her a 43.75% permanent partial disability, rather than permanent total disability. We agree and therefore reverse the judgment of the trial court and enter judgment to the employee for permanent and total disability. We also conclude that the trial court erred by failing to calculate the disability resulting from the shoulder injury independent of the employee’s preexisting back injury. We therefore remand the case to the trial court for further proceedings.

The Appellant, Davidson M. Taylor, appeals his convictions by a Shelby County jury for felony evading arrest in a motor vehicle and driving under the influence (“DUI”). For his felony conviction, Taylor received a one-year suspended sentence. Taylor was also sentenced to eleven months and twenty-nine days for the DUI conviction, with forty-eight hours to be served in confinement. On appeal, Taylor argues that the trial court misapplied established rules of evidence when it ruled that a defense witness’ testimony be stricken. Following review of the record before us, we find no error and affirm the judgments of conviction and resulting sentences.

After a bench trial, the Rutherford County Circuit Court convicted the defendant, Lavon Nunnery, of misdemeanor assault for threatening to turn his pit bulldog loose on his neighbor. The trial court subsequently sentenced him to eleven months, twenty-nine days in the county workhouse, to be served consecutively to the three-year sentence for assault with a deadly weapon for which he was on probation at the time of the instant offense. In a timely appeal to this court, the defendant challenges the sufficiency of the convicting evidence, arguing that the proof was insufficient to show that the victim reasonably feared imminent bodily injury from the dog. Following our review, we affirm the judgment of the trial court.

The petitioner, Mindy Sue Dodd, was convicted by a Rutherford County jury of first degree murder and conspiracy to commit first degree murder in the death of her husband, Sherman Henry Dodd. She received concurrent sentences of life in prison and twenty years. This court affirmed her convictions on direct appeal, and her application for permission to appeal to the Tennessee Supreme Court was denied. State v. Mindy S. Dodd, No. M2002-01882-CCA-R3-CD, 2003 WL 22999444, at *1 (Tenn. Crim. App. Dec. 23, 2003), perm. to appeal denied (Tenn. June 1, 2004). The petitioner sought post-conviction relief alleging, inter alia, denial of her constitutional right to effective assistance of counsel. After a hearing, the post-conviction court found that the petitioner had failed to show that her trial counsel was ineffective and dismissed her petition. Following our review of the record and the findings of the post-conviction court, we affirm the dismissal of the petition.

This workers' compensation appeal has been referred to the Special Workers' Compensation Appeals Panel of the Supreme Court in accordance with Tennessee Code Annotated section 50-6-225(e)(3) for hearing and reporting of findings of fact and conclusions of law. The court awarded 33% permanent partial disability to the body as a whole. The employee has appealed that ruling, contending that the trial court erred in excluding medical proof concerning a pre-existing disability unrelated to his work injury. The employee further contends that the trial court erred in failing to award permanent total disability benefits. We conclude that the exclusion of the medical evidence was error, but that it did not affect the result of the case. We affirm the judgment of the trial court as to permanent partial disability benefits.

This is an insurance case. The plaintiff landlord purchased insurance on an apartment building that he owned. The defendant tenant leased an apartment in the landlord’s building. A fire occurred and damaged the apartment building. Pursuant to the insurance policy, the plaintiff insurance carrier paid the landlord to cover the fire damage. The landlord and the insurance carrier, as the landlord’s subrogee under the contract of insurance, filed a lawsuit against the tenant, claiming negligence and breach of contract and seeking compensation for the damage to the apartment building caused by the fire. The tenant moved for summary judgment, asserting that, as a tenant, she was an implied coinsured under the landlord’s insurance policy, and that consequently the plaintiff insurance carrier had no right of subrogation against the tenant. The trial court granted summary judgment in favor of the tenant. The landlord and the insurance carrier appeal. We affirm, holding that, in the absence of an express agreement to the contrary, the tenant is deemed a co-insured under the landlord’s insurance policy, and therefore subrogation against the tenant is not available to the insurance carrier.

This workers’ compensation appeal has been referred to the Special Workers’ Compensation Appeals Panel of the Supreme Court in accordance with Tennessee Code Annotated § 50-6-225(e)(3) for hearing and reporting of findings of fact and conclusions of law. In this case, the trial court found the employee’s hearing loss to be compensable, and awarded benefits for ninety percent hearing loss to both ears. The employer has appealed, contending that the trial court erred in reopening the proof and ordering an independent medical examination after the case had been tried and a ruling had been issued. The employer also contends that the trial court erred in finding that the employee’s hearing loss was work-related, and that the size of the award is excessive. We hold that the evidence is sufficient to support the trial court’s finding on causation, even if the post-trial evidence is not considered, and affirm the amount of the award of permanent partial disability.

The Defendant, Robert Christopher Maclin, was convicted of driving on a revoked license and possession of more than .5 grams of cocaine with intent to deliver. He was sentenced as a Range II, multiple offender to thirteen years in the Department of Correction. On appeal, he argues that the evidence was insufficient to support his cocaine conviction because he was not in possession of cocaine when he was arrested. Following our review, we affirm the judgment of the trial court.

This matter is before us upon remand by the United States Supreme Court for reconsideration in light of that Court’s decision in Cunningham v. California, 549 U.S.__, 127 S. Ct. 856 (2007). In our
initial disposition of this matter, State v. Gomez, 163 S.W.3d 632 (Tenn. 2005), we concluded that the Defendants were not entitled under Apprendi v. New Jersey, 530 U.S. 466 (2000), and its progeny to relief as to their sentences. Upon further review following Cunningham, we now conclude that the trial court’s enhancement of the Defendants’ sentences on the basis of judicially determined facts other than the Defendants’ prior convictions violated the Defendants’ constitutional rights under the Sixth Amendment to the United States Constitution. In order to redress the unconstitutional enhancement of the Defendants’ sentences, we vacate their sentences and remand this matter to the trial court for resentencing. Tenn. R. App. P. 11; Judgments of the Trial Court Affirmed in Part, Vacated and Remanded in Part
 

Following a jury trial, Joseph Hall was convicted of two counts of aggravated sexual battery. Defendant was sentenced to ten years for each count to run concurrently. On appeal, Defendant argues (1) the trial court erred by failing to require that the state provide defense counsel with taped forensic interviews of the victims; (2) the evidence was legally insufficient to convict Defendant of aggravated sexual battery; and (3) the trial court erred by failing to instruct the jury on the lesser included offense of attempted aggravated sexual battery. After a thorough review of the record, we affirm the judgments of the trial court.

This is the second appeal of this breach of contract case. In Gary Weaver, et al v. Thomas R. McCarter, et al, No. W2004-02803-COA-R3-CV, 2006 WL 1529506 (Tenn. Ct. App. June 6, 2006), this Court affirmed the trial court’s grant of summary judgment in favor of plaintiffs and remanded the case “for further clarification concerning the amount of damages awarded with respect to plaintiff’s claims of negligence per se, negligent misrepresentation, and breach of contract.” Upon remand, the trial court entered judgment against the defendants jointly and severally and in favor of plaintiffs for compensatory damages and pre-judgment interest. Finding that the trial court abused its discretion in awarding pre-judgment interest, we reverse that portion of the Judgment. We reverse in part and affirm in part.

Gordon Meyer appeals the trial court’s denial of his motion to vacate the judgment entered against him pursuant to Rule 60.02 of the Tennessee Rules of Civil Procedure. Mr. Meyer and his former wife, Leslie Meyer, were sued by Stephen and Michael Meisenheimer after Michael Meisenheimer, a minor, was injured during a birthday party at the defendants’ residence. Mr. Meyer and Mrs. Meyer failed to appear for trial, and the trial court, after hearing the plaintiffs’ proof, entered a judgment against the defendants in the amount of $12,683.25. Mrs. Meyer’s debt was discharged in bankruptcy, and the plaintiffs sought to collect from Mr. Meyer. The judgment was revived in 2003, and after the assignee of the plaintiffs filed a motion to compel Mr. Meyer to answer postjudgment interrogatories, Mr. Meyer filed a Rule 60.02 motion to vacate the judgment.  Although two attorneys entered pre-trial appearances on behalf of Mr. Meyer and Mrs. Meyer, one of whom filed an answer for the couple in circuit court, Mr. Meyer denied knowledge of the lawsuit and claimed that he did not receive notice of the trial date. Mr. Meyer submitted an affidavit from one of the attorneys who appeared on his behalf, claiming that he did not remember ever talking to Mr. Meyer about the lawsuit. An affidavit from a third attorney, Stephen Bowling, who represented Mr. Meyer in his divorce suit and to whom a copy of the judgment in this case was mailed,  confirmed that he would not have accepted service or forwarded any legal documents for Mr. Meyer if the documents did not pertain to the divorce action. Following a hearing, the trial court overruled Mr. Meyer’s Rule 60.02 motion, and he appeals. After careful review, we affirm, finding that Mr. Meyer failed to meet his burden of proof to justify Rule 60.02 relief.

A Weakley County Circuit Court jury convicted the petitioner, Allen Jean Stephens, of possession of more than one-half gram of cocaine with intent to sell and possession of drug paraphernalia, and the trial court sentenced him as a Range III, persistent offender to an effective sentence of twenty three years in confinement. This court affirmed the petitioner’s convictions. See State v. Allen Jean Stephens, No. M2004-00531-CCA-R3-CD, 2005 Tenn. Crim. App. LEXIS 668 (Jackson, June 23, 2005), perm. to appeal denied, (Tenn. 2005). Subsequently, the petitioner filed a petition for postconviction relief, and the post-conviction court denied the petition after an evidentiary hearing. On appeal, the petitioner contends that he received the ineffective assistance of counsel because his trial attorney failed to argue at his pretrial suppression hearing that no probable cause existed for a search warrant to be issued for his home and failed to argue on direct appeal that the trial court did not make a necessary finding of fact regarding the motion to suppress. Based upon the record and the parties’ briefs, we affirm the judgment of the post-conviction court.

This appeal involves a petition for past due child support. When the parties divorced in 1993, the mother was designated as the primary residential parent of the child, and the father was ordered to pay child support “directly to” the mother. In 1998, the mother remarried. From that point forward, the father made his child support checks payable to the child, not to the mother. Nevertheless, the mother endorsed the checks, deposited them into the same bank account as she had before, and maintained control over the use of the funds. Years later, in 2005, the father filed a petition to modify custody, seeking to be designated as primary residential parent. The mother filed a counterclaim for child support arrearages, claiming that the father had not made proper payments as required under the divorce decree since 1998, and that he should not receive credit for the child support checks that were made payable to the child. After a hearing, the trial court gave the father credit for the child support checks. The trial court reasoned that, although the checks were made payable to the child, the money remained in the mother’s control and she treated it as her own.  The mother now appeals. We affirm, concluding that the father should receive credit for the disputed payments under the circumstances presented.

The Appellant, Tony Alan Winsett, appeals the Obion County Circuit Court’s summary dismissal of his “Motion for Delayed Appeal” following the Circuit Court’s March 28, 2006 dismissal of his pro se petition for post-conviction relief, which alleged only that his sentence was illegal. On January 9, 2007, Winsett, proceeding pro se, filed a “Motion for Delayed Appeal” seeking to appeal the March 2006 dismissal of the petition. In his motion, Winsett also asserted new grounds for relief, including ineffective assistance of counsel and a motion to suppress issue. After review, we conclude that this court is without jurisdiction to entertain the appeal. See Tenn. R. App. P. 3(b). Accordingly, the appeal is dismissed.

The defendant, Antonio Currie, was convicted of voluntary manslaughter, a Class C felony, and sentenced as a Range II, multiple offender to seven years in the county workhouse. On appeal, he argues that the evidence is insufficient to support his conviction and that the trial court erred in denying probation. Based on our review, we affirm the judgment of the trial court.

The Petitioner, Christopher Brown, appeals the trial court's denial of his petition for habeas corpus relief. 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. Petitioner has failed to allege any ground that would render the judgments of conviction void. Accordingly, we grant the State's motion and affirm the judgment of the lower court.

The defendant, Calvin Renard Steel, was convicted by a Lauderdale County jury of possession with the intent to deliver one-half gram or more of cocaine, a Class B felony, and received a sentence of twelve years as a Range II, multiple offender. In this appeal, he contends that the evidence was not sufficient to support his conviction and that the trial court erred in denying his motion to suppress evidence. We conclude that no error exists, and we affirm the judgment of the trial court.

A Lauderdale County Circuit Court jury convicted the appellant, Dontae Lamont Brown, of attempted first degree murder and aggravated assault. The trial court sentenced him to thirty-two years and eight years, respectively, and merged the convictions. On appeal, the appellant contends that (1) the evidence is insufficient to support the convictions, (2) the trial court erred by giving the jury a flight instruction, and (3) the trial court improperly enhanced his sentences. Based upon the record and the parties’ briefs, we affirm the jury’s guilty verdicts and the appellant’s thirty-two-year sentence for attempted murder. However, given that the trial court merged the aggravated assault conviction into the attempted murder conviction, the court should have entered only one judgment of conviction. Therefore, we remand the case for the trial court to enter a single judgment reflecting the merger of the convictions.

The petitioner, Curtis Buford, was convicted in the Shelby County Criminal Court of aggravated robbery, and he received a sentence of twenty years in the Tennessee Department of Correction. Subsequently, the petitioner filed a petition for post-conviction relief, alleging that his counsel was ineffective. The post-conviction court denied the petition, and the petitioner now appeals. Upon review of the record and the parties’ briefs, we affirm the judgment of the post-conviction court.

The defendant, Robin M. Chambers, pled guilty to twenty-two counts of forgery, Class E felonies, twenty-three counts of identity theft, Class D felonies, three counts of theft of property under $500, Class A misdemeanors, and one count of criminal impersonation, a Class B misdemeanor. The defendant was sentenced to fourteen years and six months in confinement as a Range I, standard offender. The defendant was denied alternative sentencing by the trial court. On appeal, the defendant argues that the trial court erred in denying her alternative sentencing instead of the imposed term of confinement. Following our review of the full record and the applicable law, we affirm the judgment of the trial court.