APPELLATE COURT OPINIONS

The petitioner appeals the denial of his petition for post conviction relief, arguing that the post-conviction court erred in finding that he received effective assistance of trial counsel. Based on our review, we conclude that the petitioner failed to meet his burden of demonstrating that his trial counsel provided ineffective assistance. Accordingly, we affirm the post-conviction court's denial of post-conviction relief.

On September 20, 1999, the Defendant pled guilty to theft of property valued over $1000 and to attempted aggravated robbery. The trial court sentenced the Defendant to two years for the theft conviction and to six years for the aggravated robbery conviction. The trial court suspended both sentences and placed the Defendant on six years' probation. On June 24, 2001, the Defendant was arrested for theft of property valued over $500. Based on the arrest, the trial court revoked the Defendant's probation. The Defendant now appeals, arguing that the trial court erred by revoking her probation. Finding no error, we affirm the judgments of the trial court.

The Appellant, Joshua Aaron Roush, appeals the sentencing decision of the Knox County Criminal Court. Roush pled guilty to attempted second degree murder and, following a hearing, was sentenced as a Range I offender to a term of eleven years in the Department of Correction. Roush appeals, asserting that his sentence was excessive because the trial court failed to comply with relevant sentencing principles and erred in not applying six mitigating factors. After a review of the record, we find that Roush's issue is without merit. Accordingly, the judgment is affirmed.

The appellant, Sybil Baker, was convicted by a Franklin County jury of one count of aggravated assault, one count of reckless endangerment, and one count of leaving the scene of an accident involving property damage. The trial court properly merged the convictions for aggravated assault and reckless endangerment and imposed a sentence of five years to be served in community corrections. On appeal, the appellant contends that the evidence is not sufficient to support the convictions of aggravated assault, reckless endangerment, or leaving the scene of an accident. Following a review of the record and the parties' briefs, we affirm the judgments of the trial court as to the appellant's convictions and remand for further proceedings consistent with this opinion.

The defendants, Phillip Charles Saindon, Jr. and Jerry Sailors, were each convicted of one count of theft over $10,000 and one count of theft over $60,000. In addition to challenging the sufficiency of the evidence on appeal, they argue that there was a fatal variance between the indictment and the proof and that the trial court erred in admitting hearsay evidence. We conclude there was no material or prejudicial variance between the indictment, which alleged theft of United States currency, and the proof as to each was sufficient to sustain the convictions of theft over $60,000. However, as to the convictions for theft over $10,000, we conclude that, although the State presented sufficient evidence to establish that the defendants committed theft of property, the evidence was insufficient to establish the value of the thefts for these convictions. Accordingly, we modify the convictions for theft over $10,000 to theft over $1000 and remand the case to the trial court for appropriate sentencing for this offense. We affirm the judgments of conviction for theft over $60,000.

A Lauderdale County grand jury indicted the defendants, Jerry Steven Cothran and Lee Theodore Smith, on one count of attempt to manufacture a controlled substance, two counts of possession of controlled substances, and one count of possession of drug paraphernalia. Cothran was also indicted on three counts of unlawful possession of a firearm. The trial court granted the defendants' motion to suppress evidence based upon an illegal search. On appeal, the state contends the trial court erred in granting the defendants' motion to suppress. Upon review of the record and the applicable law, we reverse the judgment of the trial court.

The defendants, Corey Mickens, Christopher Smith, Matthew Dixon, and Choncey Jones, all members of the Gangster Disciples, were indicted for various offenses as the result of the kidnapping of Marshall Shipp and Ricky Aldridge and subsequent beating of Aldridge and murder of Shipp, both of whom also were Gangster Disciples. Mickens was convicted of first degree murder in the perpetration of aggravated kidnapping and especially aggravated kidnapping of Shipp. Smith, Dixon, and Jones were convicted of first degree premeditated murder and especially aggravated kidnapping of Shipp, and all four defendants were convicted of the especially aggravated kidnapping of Aldridge. All four defendants were sentenced to life without the possibility of parole on the first degree murder charges. Additionally, Mickens was sentenced to two consecutive twenty-two-year sentences for the two especially aggravated kidnapping charges. Smith was sentenced to two consecutive forty-year sentences for the two especially aggravated kidnapping charges. Dixon was sentenced to two consecutive thirty-two-year, six month sentences for the two especially aggravated kidnapping charges. Jones was sentenced to two consecutive twenty-year sentences for the two especially aggravated kidnapping charges. On appeal, the defendants raise a number of issues, both jointly and individually. They argue that the trial court erred in denying the motions to sever, in its jury instructions, and in sentencing. Additionally, all argue that the evidence was insufficient to sustain their convictions. Jones and Mickens individually present several issues, including that the trial court erred in admitting into evidence an affidavit supposedly written by Jones, by allowing Jones's jail armband to be read to the jury, in allowing a State's witness to testify that Dixon flashed gang signs during her testimony, and in certain rulings regarding the State's closing argument. Smith argues that the trial court excused a juror without cause. Following our review, we affirm the convictions and sentences as to each defendant.

This is a wiretapping case. A husband and a wife were experiencing marital difficulties. During that time, the husband tape recorded a telephone conversation between his wife and her brother without the knowledge of either. When the brother found out, he filed a lawsuit  against the husband, his brother-in-law, seeking damages under the civil damages provision of the Tennessee wiretapping statutes, Tenn. Code Ann. § 39-13-603. The trial court, sitting without a jury, held that the husband was liable to his brother-in-law, and awarded nominal compensatory damages, litigation expenses, and attorney’s fees. The husband and the brother-in-law both appeal that decision, arguing that the damage award was erroneous. We reverse the trial court’s award of damages, finding that the statute requires that, when a violation is established, the trial court must award either the actual damages or the statutory minimum penalty of $10,000, whichever is greater.

The Defendant, Paul Graham Manning, was convicted by a jury of first degree premeditated murder and felony reckless endangerment. In this direct appeal, the Defendant raises six issues: (1) whether the evidence is sufficient to support his convictions; (2) whether the trial court properly instructed the jury on lesser-included offenses; (3) whether the trial court properly instructed the jury on the culpable mental state required for premeditated murder; (4) whether the Defendant was denied his constitutional right to a speedy trial; (5) whether the trial court erred by not reducing his bond; and (6) whether the trial court erred in quashing the Defendant's subpoena for certain witnesses. We affirm the judgment of the trial court.

A Tipton County jury convicted the defendant of the delivery of .5 grams or more of cocaine. On appeal, he argues: (1) the evidence was insufficient to support his conviction; (2) the trial court erred in refusing to grant a mistrial after the prosecutor improperly questioned the defendant about prior drug sales; and (3) the trial court erroneously instructed the jury regarding his co-defendant's status as an accomplice. We conclude the trial court erred in refusing to grant a mistrial. Accordingly, we reverse the judgment of the trial court and remand the matter for a new trial.

Following a bench trial, Defendant, Brian Ernest Merriweather, was found guilty of the unlawful sale of more than 0.5 grams of cocaine. He was sentenced to serve fourteen years as a Range II multiple offender. In his sole issue on appeal, Defendant argues that the evidence was insufficient to support his conviction, and that, at most, the State proved that he was guilty of a casual exchange of cocaine. After a review of the record, we affirm the judgment of the trial court.

The appellant, Richard Warren, pled guilty in the Rutherford County Circuit Court to two counts of aggravated sexual battery. The trial court sentenced the appellant on each offense to eleven years incarceration in the Tennessee Department of Correction. On appeal, the appellant contends that the trial court misapplied enhancement and mitigating factors in determining his sentences. Upon review of the record and the parties' briefs, we affirm the judgments of the trial court.