APPELLATE COURT OPINIONS

The appellant, Holly Fant,1 pled guilty to aggravated assault by use of a deadly weapon
resulting in bodily injury and agreed to have her sentence determined at a sentencing hearing. The trial court sentenced the appellant as a Range I, Standard Offender to a four-year sentence in the Tennessee Department of Correction. After an appeal, this Court reversed and remanded the case for a new sentencing hearing. See State v. Holly Fant, No. W2001-02634-CCA-R3-CD, 2002 WL 1284229 (Tenn. Crim. App. at Jackson, June 5, 2002). After a new sentencing hearing, the appellant was again sentenced by the trial court as a Range I, Standard Offender to a four-year sentence in the Tennessee Department of Correction. In this appeal, the appellant challenges her sentence by arguing that the trial court: (1) improperly applied certain enhancement factors to her sentence; (2) based its determination on evidence not in the record; and (3) improperly denied her request for a “special needs” Community Corrections sentence. After a complete review of the record, we affirm the judgment of the trial court.

I agree that the defendant’s sentence should be affirmed. In my view, however, it was error for the trial court to apply enhancement factor (6), that the defendant treated the victim with exceptional cruelty. See Tenn. Code Ann. § 40-35-114(6). Application of this factor requires a finding of cruelty over and above that inherently attendant to the crime for which the defendant is convicted. State v. Embry, 915 S.W.2d 451, 456 (Tenn. Crim. App. 1995). In other words, such evidence must “denote[ ] the infliction of pain or suffering for its own sake or from the gratification derived therefrom, and not merely pain or suffering inflicted as the means of accomplishing the crime charged.” State v. Kelly Haynes, No. W1999-01485-CCA-R3-CD (Tenn. Crim. App., at Jackson, Mar. 14, 2000). Enhancement factor (6) has typically been applied insituations where the victim was tortured or abused. See State v. Davis, 825 S.W.2d 109, 113 (Tenn. Crim. App. 1991). This court has upheld the application of this factor based on proof of extensive physical abuse or torture, see State v. Williams, 920 S.W.2d 247, 259 (Tenn. Crim. App. 1995), as well as proof of psychological abuse or torture, see State v. Thomas Lebron Mills and Carl Franklin Mills, No. 936 (Tenn. Crim. App., at Knoxville, Dec. 19, 1985) (holding that acts of mental cruelty, by themselves, can be as vicious and scarring as acts of physical cruelty). Here, there is no evidence that the defendant tortured or abused the victim or that she inflicted pain and suffering greater than that necessary to complete the offense. Rather, after shooting the victim, the defendant dialed 911 and waited with him until emergency assistance arrived. Nevertheless, I concur with the majority that the four-year sentence, one year above the minimum, was warranted.

The appellant, Dwight Miller, was convicted of first degree murder and sentenced to life in prison in 1996. On December 29, 1998, this Court reversed the judgment of the trial court and remanded the case to the Haywood County Circuit Court for a new trial. See State v. Dwight Miller, No. 02C01-9708-CC-00300, 1998 WL 902592 (Tenn. Crim. App. at Jackson, Dec. 29, 1998). At the conclusion of the second trial, appellant was convicted again by a jury of first degree murder and sentenced to life in prison. The issues presented for our review include: (1) whether the trial court erred in permitting the prior recorded testimony of a witness to be read into the record; (2) whether the trial court erred in failing to grant a mistrial after a bomb threat occurred during the course of the trial; and (3) whether the evidence is sufficient to sustain the conviction for first degree murder. Appellate review is available for the sufficiency of the evidence despite the appellant's failure to file a timely motion for new trial under Tennessee Rule of Criminal Procedure 33(b). The review of the issues, however, is also dependent upon either a timely filed notice of appeal, or in the interest of justice, a waiver of the timely filing of a notice of appeal pursuant to Tennessee Rule of Appellate Procedure 4(a). Because the appellant filed an untimely motion for a new trial, his notice of appeal is likewise tardy. Additionally, the appellant has not sought a waiver of the timely filing of the notice of appeal. Under these circumstances we conclude that the appellant has waived review of these issues on appeal. Nevertheless, we have in the interest of justice, reviewed the primary issue of the sufficiency of the evidence. The evidence is more than sufficient to support the verdict of the jury. Accordingly, the judgment of the trial court is affirmed.

A Morgan County jury found the Defendant, Glen Holt, guilty of first degree felony murder and aggravated robbery. The trial court sentenced the Defendant to nine years in prison for the aggravated robbery charge, to be served concurrently with a life sentence for the murder conviction. The Defendant appeals, contending: (1) that the evidence was insufficient to support his convictions; (2) that the trial court erred when it allowed a photograph, offered by the prosecution, to be admitted into evidence without a proper foundation; (3) that the jury did not follow the trial court’s instructions with regard to felony murder; and (4) that he did not knowingly, voluntarily and intelligently waive his constitutional right to testify in his own defense. Although we conclude that issues (1), (2) and (3) are without merit, the record is insufficient for us to determine whether the Defendant personally and knowingly waived his right to testify. Therefore, we remand the case to the trial court for a hearing to determine whether the Defendant’s right to testify was violated, and if so, whether the violation of the Defendant’s right to testify was harmless beyond a reasonable doubt.

The defendant, Richard Eugene Thompson, appeals the lower court’s failure to grant alternative sentencing following his guilty plea to vehicular assault. Discerning no error, we affirm.

The defendant, Barry Graham, was convicted by a Rutherford County Circuit Court jury of aggravated burglary, a Class C felony, and theft of property under $500, a Class A misdemeanor. He was sentenced by the trial court as a Range III, persistent offender to concurrent sentences of thirteen years for the aggravated burglary conviction, and eleven months, twenty-nine days for the theft conviction, to be served consecutively to a sentence in a previous case. The sole issue the defendant raises on appeal is whether the circumstantial evidence at trial was sufficient to establish his guilt of the offenses. We conclude the evidence was sufficient for a rational jury to find him guilty of aggravated burglary and theft under $500 beyond a reasonable doubt. Accordingly, we affirm the judgments of the trial court.

The petitioner appeals the denial of his petition for post-conviction relief from his guilty pleas to two counts of felony reckless endangerment, arguing that the post-conviction court erred in finding he received the effective assistance of counsel and that his guilty pleas were knowingly, voluntarily, and intelligently entered. Following our review, we affirm the denial of the petition.

The sole issue before the Court in this post-conviction proceeding is whether the petitioner, Jerry Neal Carpenter, was denied his constitutional right to the effective assistance of appellate counsel. At trial, the jury was given instructions on first degree premeditated murder, first degree felony murder, and robbery. The trial court declined trial counsel’s request to provide the jury with lesserincluded offense instructions, and Carpenter was convicted of first degree felony murder. Carpenter argues that he was denied the effective assistance of counsel on direct appeal because appellate counsel failed to challenge the trial court’s refusal to instruct the jury on second degree murder as a lesser-included offense. After reviewing the record and applicable authority, we hold that Carpenter has failed to establish his claim of ineffective assistance of appellate counsel. We therefore affirm the Court of Criminal Appeals’ judgment denying post-conviction relief.

The defendant was convicted of second degree murder and sentenced to twenty years in the
Tennessee Department of Correction. He contends on appeal that 1) the evidence was insufficient to prove that the killing was “knowing,” 2) the trial court erred in admitting a photo of the victim while he was alive, allowing a “memo of understanding” to be read into evidence, and refusing to admit a report of an expert witness into evidence, 3) the State made improper remarks during closing argument, 4) the trial court gave erroneous jury instructions as to the definition of “knowingly,” and 5) the sentence was improper. We conclude that the definition of “knowingly” given by the trial court improperly lessened the State’s burden of proof and was not harmless beyond a reasonable doubt. Therefore, we reverse and remand for a new trial, based on the erroneous jury instruction given by the trial court.

The appellant, Marcillo Anderson, was convicted by a jury of second degree murder and sentenced to twenty years as a Range One, Standard Offender. His release eligibility was classified as violent, requiring him to serve one hundred percent (100%) of his sentence. In this direct appeal, the appellant challenges the sufficiency of the evidence and the trial court’s denial of a jury instruction on self-defense. We hold that none of the issues raised by the appellant warrant a reversal and affirm the conviction.

The appellant, Shawn Rafael Bough, was convicted by a jury of felony murder and especially aggravated robbery. A co-defendant was tried separately. The trial court immediately sentenced the appellant to life in prison for the felony murder conviction. After a sentencing hearing, the trial court sentenced the appellant to a sentence of twenty-one years at 100% for the especially aggravated robbery conviction, to be served concurrently with the life sentence. The trial court denied the appellant's motion for new trial, amended motion for new trial, and second amended motion for new trial, and he appeals. Because the first motion for new trial was not timely filed in regards to the felony murder conviction and an untimely notice of appeal resulted, we determine that the appellant has waived all issues except for sufficiency of the evidence in regards to the felony murder conviction, which we choose to address in the interests of justice. Because the amended motion for new trial and second amended motion for new trial were likewise untimely, we hold that the only other issues properly before this Court are those raised in the initial motion for new trial that relate to the conviction for especially aggravated robbery. Those issues include: (1) whether the trial court erred in allowing the State to comment on the appellant's failure to produce a witness; (2) whether the evidence was insufficient to support the conviction for especially aggravated robbery; and (3) whether the trial court erred in failing to instruct the jury regarding the corroboration of accomplice testimony and out-of-court confessions. After a thorough review of the record, we find the evidence sufficient to sustain the convictions and affirm the judgment of the trial court. As to the remaining issues, we find no reversible error and, therefore, affirm the judgments of the trial court.

The petitioner, Gary Maurice Sexton, Jr., appeals the Knox County trial court's denial of his pro se motion requesting "credit for time at liberty." On appeal, the petitioner asserts: (1) the trial court erred in denying the motion; (2) the trial court erred in requiring him to proceed pro se at the hearing; and (3) he received ineffective assistance of counsel prior to the pro se hearing. Upon review of the record and the applicable law, we dismiss the appeal.

Terry Proffitt appeals the Sevier County Criminal Court's denial of his petition for post-conviction relief. Proffitt claims that he was deprived of the effective assistance of counsel during the proceedings in which he was convicted of first degree murder for the death of his ex-wife and that improper jury instructions were given during those proceedings. Because the lower court properly found that the petitioner failed to carry his burden of proving these claims by clear and convincing evidence, we affirm.

The petitioner, Wheatley Graham, appeals the trial court's denial of his petition for post-conviction relief alleging that he was denied the effective assistance of counsel. The judgment of the post-conviction
court is affirmed.

The defendant appeals his convictions for first degree murder and especially aggravated robbery on the grounds of the insufficiency of the evidence to support the convictions. We conclude that the evidence abundantly supported the convictions and affirm the same.

In this appeal from the Circuit Court for Davidson County the Plaintiff/Appellant, Peggy Pistole, argues that the trial court erred in excluding witness testimony upon grounds that their identity was not disclosed in Ms. Pistole's response to interrogatories. We reverse the judgment of the trial court and remand.

An Anderson County grand jury indicted the defendant and two co-defendants on a single count of aggravated robbery. While one co-defendant pled guilty to a reduced offense, the defendant and remaining co-defendant elected a jury trial. Following the close of proof, the trial court jury found these two individuals guilty as charged. For this offense the lower court sentenced the defendant to ten years as a standard offender. Thereafter the defendant unsuccessfully pursued a new trial motion. In this appeal the defendant continues to assert that his conviction cannot be upheld because it is based on the uncorroborated testimony of a co-defendant.

Following a bench trial, the defendant, Michael Renee Lee, was convicted of aggravated burglary, a Class C felony, and theft over $1000, a Class D felony, and was sentenced as a career offender to fifteen years and twelve years, respectively. The sentences were ordered to be served consecutively for an effective sentence of twenty-seven years in the Department of Correction. On appeal, he argues that the evidence is insufficient to support his convictions and that the trial court erred in denying his motion for a continuance. Following our review, we affirm the judgments of the trial court.

The petitioner, David William Smith, appeals the Sullivan County Criminal Court's denial of his petition for post-conviction relief from his five convictions for attempted second degree murder and resulting effective thirty-two-year sentence as a Range II, multiple offender. He contends that he received the ineffective assistance of counsel because his trial attorney failed to (1) cross-examine state witnesses on testimony conflicting with their prior testimony, (2) advise him that he could receive consecutive sentences, and (3) call the necessary witnesses. We affirm the trial court's denial of the petition.

This matter is before the Court upon the State's motion to affirm the judgment of the trial court by order pursuant to Rule 20, Rules of the Court of Criminal Appeals. The Petitioner is appealing the lower court's denial of coram nobis relief. After review of the record, we conclude that the State's motion is well-taken and the trial court's order denying Petitioner coram nobis relief is affirmed.

The defendant, Kendrick D. Rivers, was convicted of possession of more than .5 grams of cocaine with intent to sell and/or deliver, evading arrest, resisting arrest, and criminal trespass. The trial court imposed an effective sentence of twelve years’ incarceration. In this appeal, the defendant asserts (1) that the evidence is insufficient to support his conviction for possession of cocaine; (2) that one of the jurors had a bias against him; and (3) that the State engaged in prosecutorial misconduct by knowingly using false testimony.1 Finding no error in the record, we affirm the judgments of the trial court.

A Scott County jury convicted the Defendant, Gerald L. "Pete" Shirley, of especially aggravated kidnapping, one count of aggravated sexual battery, five counts of aggravated rape, one count of aggravated assault as a lesser-included offense of attempted second degree murder, and another count of aggravated assault. The trial court imposed an aggregate sentence of sixty years in prison. On appeal, the Defendant contends the following: (1) the trial court erred in permitting the jury to take the "bill of particulars" into the jury room during deliberations; (2) the Defendant's convictions for aggravated rape by digital penetration and aggravated rape by oral sex violate the principles of double jeopardy and duplicity of offenses; (3) the trial court erred in failing to dismiss or merge the especially aggravated kidnapping conviction into one of the aggravated rape convictions; (4) the trial court erred in refusing to permit the jury to review a copy of the statement that the victim gave to a police officer; (5) the trial court erred in failing to instruct on the lesser-included offense of false imprisonment; (6) insufficient evidence exists to support the convictions; and (7) the trial court erred in sentencing the Defendant to an effective sixty-year sentence. After thoroughly reviewing the record, we conclude that the trial court committed plain error by instructing the jury that aggravated assault was a lesser included-offense of attempted second degree murder. Accordingly, we reverse the Defendant's conviction of aggravated assault in count eleven of the indictment and modify his sentence to an aggregate fifty years in prison. We affirm the Defendant's remaining convictions.