APPELLATE COURT OPINIONS

I concur in the majority’s conclusion that Tenn. Code Ann. § 40-11-204(a) (1997) must govern any reimbursement of the conditionally forfeited bail bond in this case. As noted by the majority, Tenn. Code Ann. § 40-11-201(b) (1997) does prohibit the rendering of a conditional or final judgment of forfeiture, and therefore the entry of and execution on a final judgment of forfeiture, when a surety is unable to surrender a defendant due to the defendant’s incarceration in a jail, workhouse, or penitentiary and the surety furnishes the trial court with an affidavit of the jailer, warden, or other responsible officer. As also noted by the majority, the appellant did not provide the requisite affidavit to the trial court. Of course, the Madison County Sheriff’s Department has since obtained custody of the defendant, and a final judgment of forfeiture has yet to be entered in this case. Still, Tenn. Code Ann. § 40-11-201 places no affirmative obligation on the trial court to order reimbursement of money paid pursuant to a bail bond agreement following a defendant’s failure to appear. Cf. Blankenship v. State, 443 S.W.2d 442, 445-446 (Tenn. 1969)(interpreting the different language of Tenn. Code Ann. § 40-11-201’s predecessor statute).

The appellant, Jeffrey L. Marcum, appeals his convictions by a jury in the Madison County Circuit Court of one count of rape of a child, one count of aggravated sexual battery, and one count of incest. In this appeal, the appellant raises the following issues for our consideration: (1) whether the trial court erred under Tenn. R. Evid. 412 in limiting his cross-examination of the victim concerning her "sexual history and knowledge;" (2) whether the evidence adduced at trial is sufficient to support the jury's "verdict" of guilt; and (3) whether the trial court erred in failing to instruct the jury on the lesser-included offense of attempt to commit rape of a child. Following a careful review of the record and the parties' briefs, we affirm the judgments of the trial court for the offenses of aggravated sexual battery and incest, but we reverse the judgment for the offense of rape of a child and remand the case for a new trial on that charge.

A Knox County jury found the Defendant guilty of voluntary manslaughter, a Class C felony; and the trial court sentenced him as a Range I, standard offender to five years, four of which were to be served on probation. The Defendant now appeals, arguing the following: (1) that the trial court failed to properly consider enhancement and mitigating factors during sentencing, and (2) that the trial court erred in failing to grant judicial diversion. Finding that the trial court properly sentenced the Defendant, we affirm the judgment of the trial court.

The defendant appeals from his McMinn County Criminal Court convictions and sentences for second degree murder and facilitation of attempted second degree murder. The trial court sentenced the defendant to 25 years in the Department of Correction as a Range I offender for the second degree murder conviction and to five years incarceration for the facilitation of attempted second degree murder conviction. In this direct appeal, the defendant complains that the evidence is insufficient; that photographs and expert testimony were improperly admitted; that prosecutorial misconduct taints the verdict; that the state improperly questioned the defendant about his post-arrest exercise of his right to remain silent; that the jury instructions regarding intoxication were prejudicially inadequate; and that the sentences imposed are excessive. Unpersuaded by the defendant's assignments of errors, we affirm the trial court's judgment and sentence.

The petitioner, John H. Frasure, III, appeals the Shelby County Criminal Court's denial of his petition for post-conviction relief from his guilty plea to especially aggravated robbery, a Class A felony, and theft of property valued over ten thousand dollars but less than sixty thousand dollars, a Class C felony. The trial court sentenced the petitioner as a violent offender to fifteen years in the Tennessee Department of Correction for the especially aggravated robbery conviction and as a Range I, standard offender to three years for the theft of property conviction, to be served concurrently. The petitioner claims that he received the ineffective assistance of counsel because his trial attorney (1) failed to prepare adequately for trial because she did not interview any witnesses for the case and did not hire an investigator to assist with the case; (2) did not subpoena witnesses for a hearing to suppress the petitioner's confession or trial; (3) failed to investigate thoroughly his mental condition; and (4) failed to file a change of venue motion. We affirm the trial court's denial of the petition.

The petitioner, Timothy Rathers, was convicted by a jury in the Shelby County Criminal Court of one count of possessing less than ten pounds of marijuana with intent to deliver and one count of possessing over .5 gram of cocaine with intent to deliver. The trial court sentenced the petitioner to an effective sentence of ten years incarceration in the Tennessee Department of Correction. Subsequently, the petitioner filed a petition for post-conviction relief alleging that he received ineffective assistance of counsel at trial. The post-conviction court denied the petition, finding that the petitioner had not met his burden of demonstrating counsel's ineffectiveness. The petitioner appeals. Upon review of the record and the parties' briefs, we affirm the judgment of the post-conviction court.

We granted the defendants’ application for interlocutory appeal, see Tenn. R. App. P. 9, to review the trial court’s disqualification of defense counsel based upon conflicting interests in counsel’s representation of all four defendants. Because we conclude that the lower court acted within its discretion in disqualifying counsel from multiple representation, we affirm.

A Shelby County jury convicted the Petitioner of rape, and the trial court sentenced him as a Range I violent offender to eight years and one day in the Tennessee Department of Correction. The Petitioner subsequently filed a petition for post-conviction relief. The trial court conducted a post-conviction hearing and denied relief. The Petitioner now appeals the denial of post-conviction relief, arguing that he received ineffective assistance of counsel at trial. Specifically, he contends that his counsel (1) failed to aggressively question the victim regarding consent; (2) failed to object to the admission of expert testimony; (3) failed to aggressively cross-examine the prosecution's expert witness concerning her qualifications and her testimony in chief; (4) failed to prepare or investigate the case; (5) failed to object to "prejudicial witness examination and argument regarding the swapping of" a car battery; (6) failed to discuss defense strategy with the Petitioner; (7) failed to question the Petitioner about his knowledge of the victim's previous sexual behavior; (8) failed to review the transcript from the Petitioner's preliminary hearing; (9) failed to offer evidence of an injury to the Petitioner's hand; (10) failed to argue in closing the weight the jury should give testimony by the State's expert witness and failed to object to the State's definition of reasonable doubt in closing arguments; and (11) "failed to raise all probable issues on appeal." Having reviewed the record, we conclude that the Petitioner's representation was not deficient and therefore affirm the judgment of the trial court denying post-conviction relief.

A jury found defendant guilty of two counts of selling a Schedule I controlled substance (heroin), class B felonies. Defendant appeals his convictions claiming insufficient evidence exists to support his convictions, and the admission of the tape-recorded sales transactions was error in that it contained evidence of other bad acts or crimes in violations of Tennessee Rule of Evidence 404(b). We affirm.

I fully concur in the majority’s opinion with the exception of its conclusion that the sentence in this case is unreasonable in light of the severity of the offenses. In any event, upon remand for a new trial, should the defendant again be convicted pursuant to counts one and three of the indictment, the trial court should be free to consider the imposition of consecutive sentencing in light of any additional evidence presented by the State.

The defendant appeals from his convictions of aggravated sexual battery,  sexual battery by an authority figure, and sexual battery. We conclude that  the conviction for Count Two of sexual battery by an authority figure must be reversed and dismissed because stepparents as a matter of law are not included in the statute under which the defendant was indicted. Additionally, evidence of uncharged sex crimes was erroneously admitted and inappropriately argued resulting in undue prejudice to the defendant. The cumulative effect of these errors requires a new trial on Count One and Count Three.

The Appellant, Eddie Medlock, was convicted after a trial by jury of two counts of aggravated rape and two counts of especially aggravated kidnapping, class A felonies. The Appellant, a Range III persistent offender, was sentenced to sixty years on each count. The Criminal Court of Shelby County ordered the rape counts to run concurrent, the kidnapping counts to run concurrent, and the rape and kidnapping counts to run consecutively to each other, for an effective one-hundred and twenty-year sentence. On appeal, Medlock argues that: (1) his multiple punishments for especially aggravated kidnapping and multiple punishments for aggravated rape violated double jeopardy principles; (2) his convictions for especially aggravated kidnapping violated due process principles of State v. Anthony; (3) the evidence was insufficient to sustain his convictions; (4) the trial court failed to articulate its findings of applicable enhancing factors at sentencing; and (5) consecutive sentencing was improper. After review, we find Medlock's multiple convictions for especially aggravated kidnapping constitute double jeopardy. Accordingly, one count of especially aggravated kidnapping is reversed and dismissed; the sentences and convictions for the remaining two counts of aggravated rape and one count of especially aggravated kidnapping are affirmed.