APPELLATE COURT OPINIONS

The defendants, Donald Richard Harmon, Jr., and Charles Leonard Golden were convicted of theft over $1,000.00 but less than $10,000.00. See Tenn. Code Ann. §§ 39-14-103, 105(3).The trial court imposed Range I, two-year sentences for each defendant. Each has appealed, challenging the sufficiency of the evidence and alleging as error the limitation of cross-examination of a state witness. The defendant Harmon argues that he should have been granted an alternative sentence.  The cause is remanded as to the sentencing of the defendant Harmon; otherwise, the judgments of the trial court are affirmed.

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. The complaints against trial counsel were as to their alleged failure to prepare adequately for trial, to interview and present certain witnesses, and to present an adequate defense. After a careful review of the record, we affirm the judgment of the post-conviction court dismissing the petition.

The defendant, Nelson Troglin, was convicted of second degree murder following a jury trial in the Bledsoe County Circuit Court. The trial court subsequently imposed a sentence of twenty-three years. In this appeal, Defendant raises the following issues: (1) whether the evidence was sufficient to support his conviction; (2) whether the trial court erred by ruling that Defendant's statement to the police was admissible as evidence during his trial; (3) whether comments made by the trial court during curative instructions to the jury constituted impermissible expressions of bias toward Defendant, effectively depriving him of his right to a fair trial; (4) whether the trial court erred when it excluded evidence that a person, not Defendant, had assaulted the victim on the day of his death, and when it allowed an expert to testify concerning evidence which was not revealed to Defendant during regular discovery; (5) whether the trial court erred by failing to instruct the jury on the lesser-included offenses of reckless homicide and criminally negligent homicide; and (6) whether the sentence imposed by the trial court was excessive. After a thorough review of the record, we affirm the judgment of the trial court.

The juvenile defendant, fifteen-year-old James Noble Page, was tried as an adult for second degree murder and convicted as charged by a Montgomery County jury. The specific issue in this appeal is whether the trial court erred in instructing the jury on the "knowing" mens rea element of second degree murder. The trial court instructed the jury that the "knowing" element of second degree murder could be established by defendant's awareness "(1) that his conduct is of a particular nature; or (2) that a particular circumstance exists; or (3) that the conduct was reasonably certain to cause the result." (Emphasis added). The state concedes the instruction was error but contends it was harmless. We conclude second degree murder is a result-of-conduct offense; allowing the jury to convict based upon awareness of the nature of the conduct or circumstances surrounding the conduct erroneously lessens the state's burden of proof for this offense; the error in the jury charge was not harmless under the facts of this case; and the conviction must be reversed and the case remanded for a new trial.

The Defendant, Eric Brooks, pled guilty to the sale of a controlled substance and received a sentence of twelve years to be served on Community Corrections. The Defendant was subsequently arrested and his case officer filed an affidavit indicating that his arrest constituted a violation of his Community Corrections program. A hearing was held, at which the Defendant was represented by counsel, and the trial judge revoked the Defendant's Community Corrections sentence, re-sentencing him to fourteen years in the Department of Correction. The Defendant subsequently filed a petition for post-conviction relief, which the trial court eventually dismissed summarily. The Defendant now appeals from that dismissal. We affirm the judgment of the trial court.

The petitioner filed a petition for writ of habeas corpus, alleging that the Department of Correction had wrongfully altered two judgment forms so as to require service of his sentences in prison rather than in the county workhouse. The trial court summarily denied the petition. Because the petitioner has failed to allege grounds that would warrant habeas corpus relief, the judgment of the trial court is affirmed.

The defendant, John David White, was convicted by a jury in the Rutherford County Circuit Court for aggravated burglary, theft of property valued over $1,000, felony evading arrest, vandalism, and driving while his license was suspended. He was sentenced to a total of twenty-one years in the Department of Correction as a career offender. In this appeal, the defendant contends (1) that the trial court should have suppressed evidence obtained from the stop of his truck and (2) that the trial court erred in instructing the jury relative to flight from crime. We affirm the trial court.

A Henry County jury convicted the Defendant of one count of introducing drugs into a penal institution. The Defendant now appeals, challenging the sufficiency of the convicting evidence. After reviewing the record, we conclude that the evidence is sufficient to support the conviction and therefore affirm the judgment of the trial court.

The petitioner, Charles E. Robinson, appeals the trial court's dismissal of his petition for post- conviction relief as time-barred. The petitioner asserts that, because he was unilaterally denied the opportunity for second-tier review of his conviction, due process requires tolling of the statute of limitations. The judgment of the trial court is reversed and remanded.

The Defendant, David Kirk Browne, was indicted on one count of public indecency. The Defendant sought pretrial diversion, which was denied by the State. Following several continuances, the trial court conducted a hearing on the Defendant's petition for writ of certiorari. At the Defendant's request, the trial judge recused herself from the case. The case was transferred to Judge Jerry Beck. Judge Beck found that the Assistant District Attorney did not abuse his discretion in denying pretrial diversion. The Defendant now appeals, alleging numerous defects in the proceedings which culminated in his conviction. After a review of the evidence, we affirm the judgment of the trial court.

This is a Rule 9, Tennessee Rules of Appellate Procedure, interlocutory appeal of the trial court's order sustaining in part and denying in part the defendant's motion to suppress his statement to police. The defendant, who is totally deaf, is charged with first degree murder and aggravated arson. On the morning after the residential fire that claimed the victim's life, a deputy sheriff entered the defendant's home, tapped him on the shoulder to awaken him, and asked, via gestures and a written note, that the defendant accompany him to the sheriff's department for questioning. Investigators at the department interviewed the defendant and took his statement through an interpreter of American Sign Language. The defendant argued that the statement should be suppressed on two grounds: (1) that it was the fruit of an unlawful seizure, in violation of his Fourth Amendment right to be free from unreasonable search and seizure; and (2) that it was taken without adequate Miranda warnings, in violation of his Fifth Amendment right to counsel. Finding that the defendant voluntarily accompanied the deputy to the sheriff's department, but that he was in custody at the department and that the State failed to prove that he had been given an adequate Miranda warning, the trial court denied the motion to suppress on Fourth Amendment grounds, but granted it on Fifth Amendment grounds. The State appeals that portion of the trial court's order sustaining the motion on Fifth Amendment grounds, and the defendant appeals that portion of the order denying the motion on Fourth Amendment grounds. After a thorough review of the record and applicable law, we affirm the judgment of the trial court.

The Defendant, Barry Davis, was convicted by a jury of first degree premeditated murder and aggravated assault. His convictions were affirmed on direct appeal. See State v. Barry Davis, No. 02C01-9902-CC-00063, 1999 Tenn. Crim. App. LEXIS 845 (Jackson, Aug. 19, 1999). The Defendant subsequently filed a petition for post-conviction relief, alleging that he received ineffective assistance of counsel at trial. The trial court denied the Defendant's petition and this appeal followed. Finding no merit in the Defendant's allegations, we affirm the judgment of the trial court.

The petitioner pled guilty in the Davidson County Criminal Court to aggravated robbery and received a ten year sentence of incarceration in the Tennessee Department of Correction. Subsequently, the petitioner filed for post-conviction relief alleging that he received ineffective assistance of counsel and that his guilty plea was neither knowing nor voluntary. The post-conviction court dismissed the petition, and the petitioner now appeals. Upon a review of the record and the parties' briefs, we affirm the judgment of the post-conviction court.

Pursuant to a bench trial, the appellant, Randall P. Baker, was convicted of one count of failure to appear, a class E felony. The trial court sentenced the appellant as a career offender to six years incarceration. On appeal, the appellant contests the trial court's order mandating that his sentence be served consecutively to another sentence not yet served. Upon review of the record and the parties' briefs, we affirm the judgment of the trial court.

The petitioner, Michael Stanley Dotson, appeals the Wilson County Criminal Court's denial of his petition for post-conviction relief from his guilty plea to first degree felony murder and resulting sentence of life imprisonment. He contends that his guilty plea resulted from the ineffective assistance of counsel in that his trial attorneys (1) failed to challenge statements that the petitioner gave to the police incident to his illegal arrest; (2) failed to challenge statements that the petitioner gave to the police while he was being illegally detained; (3) failed to challenge statements that the petitioner gave to the police involuntarily; and (4) failed to investigate and develop an alibi defense. We affirm the trial court's denial of post-conviction relief.

The appellant, Evelyn C. Bostic, pled guilty in the Rutherford County Circuit Court to one count of facilitation of possession of more than .5 gram of cocaine with intent to sell. The trial court sentenced the appellant to six years incarceration in the Tennessee Department of Correction. As part of the plea agreement, the appellant specifically reserved a certified question of law regarding the sufficiency of the affidavit underlying the search warrant issued in this case. Upon review of the record and the parties' briefs, we reverse the judgment of the trial court and vacate the appellant's conviction.

The Defendant, Terrance Deshone Kinnie, was convicted of second degree murder. After a sentencing hearing the Defendant was sentenced to twenty-three years in the Department of Correction. On appeal, the Defendant contends that the evidence is insufficient to support a verdict of guilty beyond a reasonable doubt. We affirm the judgment of the trial court.

The Petitioner pleaded guilty to felony possession of less than .5 grams of cocaine for the purpose of sale and delivery, a Class C felony, and to violating the Motor Vehicle Habitual Offender's Act, a Class E felony. For the felony possession conviction, the trial court sentenced the Petitioner as a Range III, persistent offender to ten years incarceration to be served at forty-five percent. For the motor vehicle habitual offender conviction, the trial court sentenced the Petitioner as a Range II, multiple offender to three years incarceration to be served at thirty-five percent. The trial court ordered that the two sentences be served concurrently, but consecutive to sentences for four prior convictions. The Petitioner filed a petition for post-conviction relief, claiming that his plea was constitutionally defective because he was inadequately represented and that his plea was not voluntarily, knowingly and intelligently entered. The trial court denied relief. After review, we affirm the judgment of the trial court.

This case arises out of a series of armed robberies of gas stations in several counties along Interstate 40. The Defendant, John George, and two codefendants were arrested in Humphreys County, Tennessee. The Defendant gave a statement to police after his arrest confessing his role in robberies in both Humphreys and Dickson counties. Subsequently, the Defendant pled guilty to a charge of aggravated robbery in Humphreys County and was sentenced to nine years in the Department of Correction. In the case before us, the Defendant also entered a guilty plea to aggravated robbery and felony theft arising out of a robbery in Dickson County. After a sentencing hearing, the Defendant was sentenced to nine years for the aggravated robbery and four years for the felony theft to be served concurrently. However, the trial court ordered the sentence to be served consecutively to the Defendant's sentence for aggravated robbery in Humphreys County. The Defendant now appeals the sentence imposed by the trial court. The Defendant contends that the trial court (1) improperly imposed a sentence above the minimum and (2) improperly ordered that the sentence for aggravated robbery to be served consecutively to the Humphreys County sentence. We affirm the judgment of the trial court setting the length of the sentences for aggravated robbery and theft. We remand for further proceedings on the consecutive sentence issue.