APPELLATE COURT OPINIONS

This case arises out of a petition to reopen paternity proceedings filed by Appellant. When Appellee refused to submit to a DNA test, Appellant filed a petition to find Appellee in contempt of court. The trial court refused to find Appellee in contempt and determined that Appellee need not submit to a DNA test. Appellant filed her notice of appeal and seeks review by this Court. For the following reasons, we affirm the trial court.
 

The defendant, Thomas L. Gouge, appeals from the trial court's revocation of probation requiring a sixty-day jail sentence. The order of revocation provided that the defendant reside in a work release facility for an unspecified amount of time after service of sixty days and that his probationary release was conditioned upon his refraining from taking residence "with any female to whom he is not married." The order of revocation is affirmed; the sentence, however, is modified by deleting the provision prohibiting the sharing of the residence with an unmarried woman.

The Trial Court determined there were statutory grounds to terminate the mother's parental rights and that termination was in the child's best interest, all by clear and convincing evidence. On appeal, we affirm.

The defendant, Raymond D. Simpson, pled guilty to criminally negligent homicide, a Class E felony. The trial court imposed a Range I sentence ¹ of two years. The defendant was ordered to serve seven months in confinement and the remainder on probation. The defendant contends that the trial court erred by denying full probation and/or community corrections. The judgment of the trial court is affirmed; the sentence must be modified, however, to a Range I term of one year, with 105 days to be served in confinement and the balance on probation.

In this workers' compensation appeal, we must determine whether the appellee, a father who supervised the construction of his daughter's residence, is required to pay workers' compensation benefits to the appellant, the employee of a subcontractor who was injured during the construction of the residence. We hold that the father is an uncompensated agent of the owner and therefore falls within the owner's exemption of Tennessee Code Annotated section 50-6-113(f) (1999). Thus, we adopt the conclusions of the Special Workers' Compensation Appeals Panel affirming the judgment of the trial court.

I write separately to call attention to what I believe is disparate treatment of two cases which, on all pertinent points, seem to be identical. The case presently before this Court involves an inattentive or negligent driver havinga single-vehicle accident while transporting two of his children and his new wife in a vehicle with no seat belts or child restraint devices. In a tragic, yet foreseeable, turn of events, eleven-month-old Jonathan was fatally injured when the truck rolled over on its side and his head struck a pillar on the passenger side of the truck. Despite the efforts of his father, the  defendant in this case, young Jonathan died from cardiac arrest resulting from his head trauma.

Following a jury trial, the Defendant was convicted of robbery. He was sentenced to six years in the Department of Correction. On appeal he challenges the sufficiency of the convicting evidence and argues that the trial court erred in sentencing him to the maximum term of six years. We affirm the Defendant’s conviction but modify his sentence to five years.

The defendant, Robbie W. Fields, was indicted by the Bradley County Grand Jury for possession of a Schedule I controlled substance, ecstasy, with intent to sell or deliver; possession of a Schedule VI controlled substance, marijuana, with intent to sell or deliver; possession of drug paraphernalia; tampering with evidence; and theft of property under $500. After a pretrial hearing, the trial court suppressed the evidence, and the charges were dismissed, which the State argues was error. Following our review, we reverse the trial court's determination that the officers unlawfully entered the defendant's apartment and remand for additional findings of fact and conclusions of law as to the seizure of evidence.

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 by a jury of one count of theft over $1,000 but less than $10,000 and three counts of forgery, all Class D felonies, and was sentenced as a Range I, standard offender to three years on the theft count and two years on each of the forgery counts. The two-year sentences were ordered to be served concurrently but consecutively to the three-year sentence, for a total effective sentence of five years. Split confinement was ordered, with forty-five days to be served in the county jail and the remainder of the sentence on probation. In addition, she was ordered to pay $2,233.94 in restitution. The defendant timely appealed, alleging: (1) the evidence is insufficient to support her convictions; and (2) the trial court erred in allowing certain photographs to be admitted into evidence and in sentencing the defendant. Based on our review, we affirm the judgments of the trial court but modify the defendant’s sentences to reflect that they are to be served concurrently.

Defendant, Julius Q. Perkins, was indicted on one count of first degree premeditated murder and one count of first degree felony murder. Following a jury trial, Defendant was found guilty of felony murder and not guilty of premeditated murder. He was sentenced to life imprisonment. On appeal, Defendant argues that the evidence was insufficient to support his conviction of felony murder because the State failed to show that the victim was killed during a robbery or attempted robbery, or, alternatively, that Defendant was criminally responsible for the death of the victim. After a thorough review of the record, we affirm the judgment of the trial court.

The Defendant, Chris Grunder, was convicted of especially aggravated kidnapping, aggravated rape, aggravated assault, and theft of property over $500.00. The trial court sentenced the Defendant to an effective sentence of thirty-one years. On appeal, the Defendant contends that: (1) the evidence is insufficient to sustain his convictions; and (2) the trial court erred when it sentenced him. After thoroughly reviewing the record and the applicable authorities, we affirm all of the Defendant's convictions. Further, we hold that the trial court improperly enhanced the Defendant's sentences in light of Blakely v. Washington, 542 U.S. __, 124 S. Ct. 2531 (2004), and we reduce the Defendant's sentence in accordance with this opinion to an effective sentence of twenty-nine years. We remand the case for the entry of judgments of conviction consistent with this opinion.

The defendant, Bradley Lonsinger, was convicted of attempt to manufacture a Schedule II controlled substance, methamphetamine, a Class D felony, and was sentenced as a Range II, multiple offender to eight years in the Tennessee Department of Correction and fined $5000. He raises two issues on appeal: (1) whether the search warrant leading to his arrest was based on sufficient probable cause; and (2) whether the evidence was sufficient to support his conviction. Based on our review, we affirm the judgment of the trial court.

This matter is before the Court upon the State's motion to affirm the judgment of the trial court by memorandum opinion pursuant to Rule 20, Rules of the Court of Criminal Appeals. The petitioner has appealed the trial court's order summarily dismissing the petition for the writ of habeas corpus. In that petition, the petitioner alleges that the indictment charging the petitioner with first degree felony murder is void because the word "robbery" was handwritten on the indictment. Upon a review of the record in this case we are persuaded that the trial court was correct in summarily dismissing the habeas corpus petition and that this case meets the criteria for affirmance pursuant to Rule 20, Rules of the Court of Criminal Appeals. Accordingly, the State's motion is granted and the judgment of the trial court is affirmed.

The petitioner, Jon Hall, appeals as of right the judgment of the Madison County Circuit Court denying his petition for post-conviction relief from his capital murder conviction. The petitioner was convicted of the 1994 first degree murder of his estranged wife, Billie Jo Hall. At the conclusion of the penalty phase of the trial, the jury found one aggravating circumstance that the murder was especially heinous, atrocious and cruel in that it involved torture or serious physical abuse beyond that necessary to produce death. See T.C.A. § 39-13-204(i)(5). The jury further found that the aggravating circumstance outweighed the evidence of mitigating circumstances beyond a reasonable doubt and sentenced the petitioner to death. The petitioner’s conviction and sentence of death were affirmed on appeal. See State v. Hall, 8 S.W.3d 593 (Tenn. 1999), reh’g denied, (Dec. 27, 1999), cert. denied, 531 U.S. 837 (2000). The petitioner filed a pro se petition for post-conviction relief on December 7, 2000, which was followed by an amended petition on November 1, 2001. On February 20, 2003, the trial court denied relief and dismissed the petition. The petitioner appeals, claiming that: (1) counsel were ineffective at the guilt phase; (2) counsel were ineffective at the penalty phase; (3) the heinous, atrocious or cruel aggravating circumstance is unconstitutional as applied in this case; (4) the imposition of the death penalty is unreliable and violates principles protected by both the United States and Tennessee Constitutions; and (5) the death sentence is unconstitutional as it infringes upon the petitioner’s right to life and is not necessary to promote any compelling state interest. We conclude that no error of law requires
reversal, and we affirm the trial court’s denial of post-conviction relief.

After a jury trial held on January 15 and 16, 2003, the defendant, Timothy Ryan Baggett, was found guilty of one count of rape as charged. The trial court then sentenced the defendant to ten (10) years as a violent offender at 100% service of sentence. The defendant appealed to this Court arguing: (1) that there was insufficient evidence to support his conviction; (2) that the prosecutor made improper comments during closing argument that amounted to prosecutorial misconduct; and (3) that in sentencing the defendant the trial court relied upon evidence not in the record. We have found each of these issues to be without merit and, therefore, affirm the judgment of the trial court, but modify the defendant's sentence to eight years at 100% service of sentence.

The petitioner, Clyde Dewayne Wesemann, appeals the dismissal of his petition for post-conviction relief from his convictions for first degree murder, aggravated burglary, and theft of property under $500, arguing that the post-conviction court erred in finding that he received effective assistance of trial counsel. After a thorough review of the record, we affirm the dismissal of the petition.

In this appeal we remand to the Trial Court with instructions and lift stay issued by this Court.

The Appellant, Weltha Womack, was convicted by a Knox County jury of one count of aggravated rape, a class A felony, and two counts of misdemeanor assault, resulting in an effective fifteen-year sentence. On appeal, Womack raises the following issues for our review: (1) the voluntariness of his statements to the police; (2) whether the trial court erred by permitting the State to amend the presentment on the morning of trial; (3) whether the trial court properly instructed the jury with regard to the requisite mental state for aggravated rape; and (4) whether the prosecutor's comments constituted prosecutorial misconduct in its closing argument. After review, we find merit with regard to issues (1) and (3) with respect to Womack's conviction for aggravated rape. Accordingly, the judgment of conviction for aggravated rape is reversed, and this case is remanded for a new trial consistent with this opinion.

This case involves involuntary commitment to a mental institution. Paramedics were called to the plaintiff’s home by her roommate, and she was brought involuntarily to the hospital for evaluation. She was admitted to the emergency room and examined by the physician on duty. She was interviewed by a mental health clinician. The physician then went off duty and the defendant physician took charge. The defendant physician examined the patient’s chart, reviewed the history taken by the prior physician and the mental health clinician, and then signed a form committing the plaintiff to a mental institution. The form stated that the defendant physician had examined the plaintiff, but the plaintiff was examined only by the prior physician, who was no longer on duty. The plaintiff then sued the defendant physician for involuntarily committing her to a mental institution without personally examining her. The trial court granted summary judgment to the defendant physician, classifying the action as medical malpractice and finding that the plaintiff failed to offer competent expert proof as required under T.C.A. § 29-26-115. We affirm the grant of summary judgment as to claims of medical malpractice, and reverse the grant of summary judgment for the claims of negligence and false imprisonment, finding that T.C.A. § 36-6-402 requires that a physician or designated professional who commits a patient to a mental institution must first personally examine the patient, rather than relying exclusively on medical records or someone else’s examination of the patient. Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court is Affirmed in Part and Reversed in Part
 

The Defendant, Jon Seiler, pled guilty to driving under the influence of an intoxicant (“DUI”), second offense. Pursuant to Tennessee Rule of Criminal Procedure 37, the Defendant reserved as a certified question of law the issue of whether the trial court erred when it denied his motion to suppress. Finding no error, we affirm the judgment of the trial court.

This is a post-divorce case. The parties were divorced in 1999. The judgment of divorce awarded Gloria J. Bevill ("Wife") alimony in futuro of $1,750, subject to provisions pertaining to the retirement of her then-former spouse, Ellis M. Bevill, Sr. ("Husband"). In specific terms, the judgment provided that upon Husband's retirement, he was entitled to reduce the amount of his alimony payment to $1,300, subject, however, to a stipulation in the judgment providing that Husband's post-retirement earnings could affect the amount of his obligation. Husband retired and, pursuant to the divorce judgment, unilaterally reduced the amount of his monthly alimony payments. In response, Wife filed a petition to interpret the divorce judgment and/or modify the spousal support award. The trial court interpreted the divorce judgment as permitting an upward modification of Husband's alimony obligation. Upon review of the evidence, the trial court subsequently increased Wife's alimony award to $1,900 per month, in addition to awarding her attorney's fees. It is from this order that Husband appeals. We affirm.

This is a child support case. The parties divorced in 1991 and were awarded joint custody of their three minor children. Since the divorce, the parties have been engaged in an ongoing legal battle over child support issues. In May 2002, the trial court confirmed the findings of a special master, resolving all disputes except for child support for years 2001, 2002, and 2003. In September 2003, the parties agreed to use the findings of the special master to calculate the remaining child support issues. The mother filed a proposed consent order. After she received no response, she filed a motion for summary judgment, which was granted. The grant of summary judgment to the mother resolved the remaining issues. The father appealed the grant of summary judgment arguing, inter alia, that the report of the special master was “clearly erroneous.” We affirm the findings of the trial court with modifications, and grant the mother’s request for attorney’s fees.

This is a wrongful death action growing out of allegations of medical malpractice lodged against Dr. Becky C. Wright and Metropolitan Anesthesiologist Alliance. On December 7, 2000, surgery was performed on the decedent to remove her gallbladder. Ultimately, the decedent suffered irreversible encephalopathy and lingered in a comatose state for nearly a year and a half before she died on April 24, 2002.

The petitioner, Deborah Graham, appeals the trial courts denial of her petition for post-conviction relief. The single issue presented for review is whether the petitioner was denied the effective assistance of counsel at trial. The judgment is affirmed.