COURT OF CRIMINAL APPEALS OPINIONS

State of Tennessee v. Brian Keith Gilmer
E2001-01474-CCA-R3-CD
Authoring Judge: Judge Thomas T. Woodall
Trial Court Judge: Judge O. Duane Slone

Defendant, Brian Keith Gilmer, pursuant to a negotiated plea agreement, pled guilty to four counts of rape, Class B felonies, and five counts of rape of a child, Class A felonies, in Case No. 6975 in the Circuit Court of Jefferson County. On the same date, he pled guilty to five counts of rape, Class B felonies, in Case No. 8161 in the Circuit Court of Sevier County. The victim in all counts, in both counties, was Defendant's stepdaughter. Sentencing was to be determined by the trial court (which was the same for both counties), but the negotiated plea agreement was structured such that the total effective sentence would not be less than 15 years or more than 50 years. Defendant also pled guilty to other criminal offenses as part of the plea agreement, but these are not relevant to this appeal. Although Defendant filed a notice of appeal indicating that he was appealing the sentences imposed in both the Jefferson and Sevier County cases, in effect, this appeal challenges only the length of sentences of the Class A felonies in the Jefferson County case, and the fact that one Class A felony was ordered to be served consecutively to the other sentences. We affirm the judgments of the trial court.

State of Tennessee v. Sean A. Turner, alias; Sean Andre Turner
E2001-01773-CCA-R3-CD
Authoring Judge: Judge Thomas T. Woodall
Trial Court Judge: Judge Ray L. Jenkins

Defendant, Shaun A. Turner, alias Shaun Andre Turner, appeals from the trial court's order revoking his probation and ordering him to serve two consecutive sentences in the Department of Correction. After reviewing the record, we affirm the judgment of the trial court.

State of Tennessee v. Kenneth A. Phillips a/k/a Kenneth Arnold Phillips a/k/a Kenny Dent
W2001-01831-CCA-R3-CD
Authoring Judge: Judge David H. Welles
Trial Court Judge: Judge Joseph H. Walker, III
The defendant was convicted by a Tipton County jury of theft of property valued over $1000, a Class D felony. After a sentencing hearing, he was sentenced as a Range II multiple offender to five years in the Department of Correction. On appeal, the defendant contends that (1) the evidence is insufficient to support the jury's verdict, (2) the trial court erred in admitting evidence of a prior bad act, (3) the defendant was identified from an impermissibly suggestive lineup, and (4) the defendant was never informed of the existence of a possibly exculpatory videotape. We affirm the judgment of the trial court.

State of Tennessee v. Matric Becton & Antonio Sykes
W1999-00581-CCA-R3-CD
Authoring Judge: Judge David H. Welles
Trial Court Judge: Judge Joseph B. Dailey
The Defendants, Matrin Becton and Antonio Sykes, were convicted by a jury of first degree premeditated murder, especially aggravated robbery, and two counts of especially aggravated kidnapping. Both defendants were sentenced by the same jury to life without the possibility of parole for the first degree murder. After a sentencing hearing, the trial court sentenced both defendants to twenty-five (25) years for each of the remaining counts and ordered all the sentences to run consecutively, for effective sentences of life without parole plus seventy-five (75) years. On appeal, Defendant Sykes contends that the evidence is insufficient to support the jury’s verdict and that the trial court erred in allowing testimony concerning a statement made by the victim prior to his death. Defendant Becton argues that the trial court improperly denied his motion to sever, erred in allowing certain photographs into evidence, erred in charging the jury both in the guilt and sentencing phases, and erred in imposing consecutive sentences. We affirm the judgments of the trial court.

State of Tennessee v. Matric Becton & Antonio Sykes - Concurring
W1999-00581-CCA-R3-CD
Authoring Judge: Judge David G. Hayes
Trial Court Judge: Judge Joseph B. Dailey

I join with the majority on all issues with the exception of their holding that the hearsay statement of the victim was admissible. The majority finds that the deceased victim's statement "that he was tired of the lifestyle, being in that environment, and he didn't want to be a part of it anymore" was admissible to establish the victim's existing state of mind.

State of Tennessee v. Floyd Earl Rayner, III
M2001-00971-CCA-R3-CD
Authoring Judge: Judge J. Curwood Witt, Jr.
Trial Court Judge: Judge Seth W. Norman

The defendant, Floyd Earl Rayner, III appeals from his five convictions of rape of a child and five convictions of aggravated sexual battery, claiming that the trial court (1) failed to fulfill its duty as the "thirteenth juror" and (2) erred in its sentencing determinations by not applying mitigating factors in establishing the length of his sentences and in ordering partial consecutive service of the sentences. Because we hold that the trial court discharged its "thirteenth juror" responsibility and that the sentencing issues have been waived, we affirm.

State of Tennessee v. William C. Bentley
M2001-01521-CCA-R3-CD
Authoring Judge: Judge Thomas T. Woodall
Trial Court Judge: Judge Seth W. Norman

Defendant, William C. Bentley, was convicted by a Davidson County jury of attempted aggravated robbery. In this appeal, he challenges the sufficiency of the evidence to sustain the conviction, and argues that the trial court committed reversible error by admitting hearsay testimony. After a thorough review of the record, we affirm the judgment of the trial court.

State of Tennessee v. Erick Darnell Bailey
M2001-01974-CCA-MR3-CD
Authoring Judge: Judge J. Curwood Witt, Jr.
Trial Court Judge: Judge Seth W. Norman

The defendant, Erick Darnell Bailey, appeals his first-degree murder convictions imposed following a jury trial in the Davidson County Criminal Court. The defendant was tried and convicted on both felony-murder and premeditated-murder counts in the indictment, and the  trial court merged the convictions into a single conviction of first-degree murder. The single issue raised on appeal is whether the convicting evidence is sufficient to support the verdicts. We modify the conviction for premeditated murder to second-degree murder and affirm the conviction for first-degree, felony murder. The second-degree  murder conviction merges into the felony murder conviction.

State of Tennessee v. Eric B. Blakemore
W2001-01929-CCA-R3-CD
Authoring Judge: Judge David G. Hayes
Trial Court Judge: Judge Carolyn Wade Blackett

The Appellant, Eric B. Blakemore, was convicted by a Shelby County jury of one count of second degree murder and one count of attempted second degree murder. After a sentencing hearing, Blakemore received concurrent sentences of twenty-two years for the murder conviction and ten years for the attempted murder conviction. On appeal, Blakemore asserts that the evidence presented at trial was insufficient to support his conviction for second degree murder. Specifically, he argues that the evidence presented supports the lesser offense of voluntary manslaughter. After review, we find the evidence legally sufficient; accordingly, the judgment of conviction is affirmed.

State of Tennessee v. David Tyrone Dowell
W2001-02161-CCA-R3-CD
Authoring Judge: Judge J. Curwood Witt, Jr.
Trial Court Judge: Judge Joseph H. Walker, III

The defendant, David Tyrone Dowell, appeals the sentence imposed by the trial court on his guilty-plea-based aggravated assault conviction. Because the record supports the trial court's sentencing determination, we affirm.

State of Tennessee v. Brenda Lee Hicks
E2001-00990-CCA-R3-CD
Authoring Judge: Presiding Judge Gary R Wade
Trial Court Judge: Judge Douglas A. Meyer

The defendant, Brenda Lee Hicks, was convicted of vehicular homicide and entered a plea of guilt to one count of driving without a license. The trial court imposed a sentence of six years for the vehicular homicide and ordered service of 11 months and 29 days in jail. The balance of the sentence is to be served on supervised probation. The trial court imposed a concurrent sentence of 30 days incarceration for the charge of driving without a license. In this appeal as of right, the defendant contends that the evidence is insufficient to support the vehicular homicide conviction and questions the propriety of the sentence for that offense. The judgment of the trial court is affirmed.

State of Tennessee v. Frederick Devill Rice
E2000-02389-CCA-R3-CD
Authoring Judge: Judge Joseph M. Tipton
Trial Court Judge: Judge Stephen M. Bevil

The defendant, Fredrick Devill Rice, was convicted by a Hamilton County Criminal Court jury of first degree premeditated murder and first degree felony murder. The trial court merged the two convictions and sentenced the defendant to life imprisonment. The defendant appeals, claiming that (1) the evidence is insufficient to support his merged convictions; (2) the trial court erred by admitting a videotaped search of the defendant's residence into evidence; and (3) the state argued outside of the record twice during closing argument. We affirm the judgment of the trial court.

State of Tennessee v. David W. Bass
E2001-01146-CCA-R3-CD
Authoring Judge: Presiding Judge Gary R Wade
Trial Court Judge: Judge E. Eugene Eblen

The defendant, David W. Bass, was indicted for driving under the influence, violation of the implied consent law, failure to appear, and operating a motor vehicle with an improper taillight. Pursuant to a plea agreement, the defendant entered a plea of guilt to driving under the influence, first offense. After the entry of his plea but before sentencing, the defendant sought to withdraw his plea, arguing that it was not knowingly and voluntarily made. The trial court denied the motion and imposed a sentence of eleven months and twenty-nine days, with all but three days suspended. In this appeal of right, the defendant contends that the trial court erred by denying the motion to withdraw the guilty plea. The judgment of the trial court is affirmed.

Richard Lynn Norton v. Ricky Bell, Warden - Order
M2001-02516-CCA-R3-CO
Authoring Judge: Judge Joseph M. Tipton

The petitioner appeals pro se from the Davidson County Criminal Court’s denying him habeas corpus relief from his three 1999 convictions for the sale or delivery of more than one-half gram of crack cocaine for which he received an effective sentence of twenty-four  years. The petitioner contends that the convictions are void because the presentment “does not charge the overt act, offense of knowingly possession with intent to sell or deliver a Schedule II controlled substance, and nor, does it charge, knowingly possessed a Schedule II controlled substance, exceeding one-half gram.” He also asserts that evidence “seized and manufactured through an informant, after-the-fact, through inducement” is insufficient to show probable cause in Tennessee. The trial court denied relief.

Cumecus R. Cates v. State of Tennessee
E2001-01408-CCA-R3-PC
Authoring Judge: Judge Robert W. Wedemeyer
Trial Court Judge: Judge Mary Beth Leibowitz

Pursuant to a plea agreement, the Petitioner pled guilty to four felony drug offenses and received an effective sentence of sixteen years. After a hearing, the trial court ordered the sentence to be served in the Tennessee Department of Correction. The Petitioner filed a petition for post-conviction relief, which the trial court dismissed without a hearing for failure to state a colorable claim. Concluding that the Petitioner stated a colorable claim, we reverse and remand for a hearing.

State of Tennessee v. Gregory Dunnorm
E2001-00566-CCA-R3-CD
Authoring Judge: Presiding Judge Gary R Wade
Trial Court Judge: Judge James B. Scott, Jr.
The defendant, Gregory Dunnorm, was convicted of Class D felony evading arrest, the simple assault of LaDeana Ellis, vandalism, and second offense driving on a suspended license. See Tenn. Code Ann. §§ 39-16-603, 39-13-301, 39-14-408, 55-50-504. He had been charged with the aggravated assault of LaDeana Ellis and was acquitted on charges of simple assault of Sonda Ellis and aggravated assault of Officer Karen Wehenkel. While granting supervised probation, the trial court sentenced the defendant to concurrent terms of two years for evading arrest and 11 months, 29 days for each of the misdemeanor convictions. In this appeal of right, the defendant asserts (1) that the evidence was insufficient to support the convictions for evading arrest, assault, and vandalism; (2) that the trial court erred by permitting the state to cross-examine the defendant regarding his affidavit of income; (3) that the trial court erred by failing to instruct the jury regarding the lesser included offenses of Class D felony evading arrest; and (4) that the trial court erred by declining to instruct the jury on the defense of effective consent. Because the evidence was insufficient to support the defendant’s conviction for Class D felony evading arrest and because the trial court erred by failing to instruct on the lesser included offense of Class E felony evading arrest, the conviction is reversed and the cause remanded. Otherwise, the judgments of the trial court are affirmed.

State of Tennessee v. Gregory Dunnorm - Concurring
E2001-00566-CCA-R3-CD
Authoring Judge: Judge Joseph M. Tipton
Trial Court Judge: Judge James B. Scott, Jr.
I concur with the majority opinion, but I believe that neither Rule 613 nor Rule 608, Tenn. R. Evid., allowed use of extrinsic evidence of the defendant’s lying on the affidavit of income. As the majority opinion notes, Rule 608 allows a party to cross-examine a witness about specific instances of conduct for the purpose of attacking the witness’s credibility, but it bars extrinsic evidence of such conduct if the witness denies that it occurred. I also believe, though, that such an exclusion applied to Rule 613 in this case.

State of Tennessee v. Anthony Murff, aka Antony Muff
W2001-01459-CCA-R3-CD
Authoring Judge: Judge Alan E. Glenn
Trial Court Judge: Judge Joseph H. Walker, III

The defendant was convicted by a Lauderdale County Circuit Court jury of especially aggravated robbery, a Class A felony, and sentenced by the trial court as a Range III, persistent offender to sixty years, to be served at 100%, in the Tennessee Department of Correction. He raises three issues on appeal: (1) whether the evidence was sufficient to support his conviction; (2) whether the trial court erred in using his prior Illinois convictions to classify him as a persistent offender; and (3) whether the trial court erred in its application of enhancement factors. We conclude that the evidence was more than sufficient to support the defendant's conviction, and that his prior convictions in Illinois qualified him as a persistent offender. We further conclude that, although the trial court erred in applying three enhancement factors, the remaining enhancement factors justify the sixty-year sentence imposed in this case. Accordingly, the judgment of the trial court is affirmed.

State of Tennessee v. Olivia Washburn
W2001-01847-CCA-R3-CD
Authoring Judge: Judge Alan E. Glenn
Trial Court Judge: Judge Roy B. Morgan, Jr.

A Henderson County Circuit Court jury found the defendant, Olivia Washburn, guilty of the sale and delivery of .5 grams or more of cocaine, Class B felonies, and assessed two separate $25,000 fines. The trial court sentenced the defendant as a Range I, standard offender, imposed an eight-year sentence to be served in the Tennessee Department of Correction, and merged the fines so that the defendant was ordered to pay a total of $25,000. On appeal, the defendant argues that the trial court erred in concluding both that her statement to law enforcement officers was voluntary and that the evidence against her was sufficient, as well as in allowing into evidence a videotape not produced to the defense. These assignments are without merit. However, we conclude that the trial court erred in admitting the defendant's statement without considering whether the probative value of the numerous references to other drug offenses outweighed their prejudicial effect. The judgments of the trial court are reversed, and the matter is remanded for a new trial.

State of Tennessee v. John Wesley Johnson
W2001-02473-CCA-MR3-CD
Authoring Judge: Judge Norma McGee Ogle
Trial Court Judge: Judge L. Terry Lafferty

The appellant, John Wesley Johnson, was indicted by the Gibson County Grand Jury for one count of desecration of a venerated object, to wit: a place of burial, a class A misdemeanor. He was convicted by a jury, sentenced to eleven months and twenty-nine days in the county jail, placed on probation, and ordered to pay restitution in the amount of $2,574. The appellant, proceeding pro se, filed an untimely notice of appeal. This court, upon motion of the appellant, waived timely filing
of the appeal; accordingly, the appeal is properly before this court. On appeal, the appellant raises the following issues: (1) “w[h]ether the trial court reviewed the record”; (2) “w[h]ether the (State) conspira[cy] used their position to withhold facts in order to receive a conviction”; (3) “w[h]ether the public officers used the court to reach their gold”; and  (4) “w[h]ether the trial court erred in its review of the records and facts of law as to this case.” Upon review of the record and the parties’
briefs, we affirm the judgment of the trial court.

Wendy McFadden v. State of Tennessee
W2001-02475-CCA-R3-PC
Authoring Judge: Judge Robert W. Wedemeyer
Trial Court Judge: Judge L. Terry Lafferty

The Defendant pled guilty to second degree murder, and the trial court imposed an agreed sentence of fifteen years in the Department of Correction. The Defendant subsequently filed for post-conviction relief, alleging that she did not enter a voluntary and knowing guilty plea and alleging that she received ineffective assistance of counsel in conjunction with her plea. After an evidentiary hearing, the trial court denied relief. This appeal followed. We affirm the judgment of the trial court.

Robert Anthony Payne v. State of Tennessee
M2001-01994-CCA-R3-PC
Authoring Judge: Judge John Everett Williams
Trial Court Judge: Judge Seth W. Norman

The petitioner appeals the post-conviction court's denial of his petition for post-conviction relief. He claims that counsel was ineffective for failing to timely discover the existence of another individual who was questioned regarding the aggravated assault and for failing to interview or cross-examine the victim of the assault. After review, we affirm the judgment from the post-conviction court.

State of Tennessee v. Timothy D. McGlory
M2001-01998-CCA-R3-PC
Authoring Judge: Judge J. Curwood Witt, Jr.
Trial Court Judge: Judge Steve R. Dozier
The petitioner appeals the Davidson County Criminal Court's denial of post-conviction relief. Because the record supports the rejection of the petitioner's claims that his guilty pleas to two counts of aggravated robbery were unknowing and the result of ineffective assistance of trial counsel, we affirm the denial of post-conviction relief.

State of Tennessee v. Genee Hardin Snow, Sr.
M2001-01416-CCA-R3-CD
Authoring Judge: Judge Thomas T. Woodall
Trial Court Judge: Judge Cheryl A. Blackburn

Originally charged in an indictment with the offense of attempted first degree murder, the Defendant, Genee Hardin Snow, Sr., entered into a negotiated plea agreement wherein he pled guilty to the lesser-included offense of attempted second degree murder, with the trial court to determine the length and manner of service of his sentence following a sentencing hearing. Additional charges of aggravated assault, reckless endangerment with a deadly weapon, and possession of a weapon in a public place were dismissed pursuant to the plea agreement. Following a sentencing hearing, the trial court sentenced Defendant to serve nine (9) years in the Tennessee Department of Correction. Arguing that he should have received the minimum sentence of eight (8) years, and that he should have been ordered to serve the sentence on probation or some other form of alternative sentence, Defendant has appealed. After a thorough review of the record, we affirm the judgment of the trial court.

Frederick Beauregard v. State of Tennessee
W2001-02546-CCA-R3-PC
Authoring Judge: Judge David G. Hayes
Trial Court Judge: Judge Jon Kerry Blackwood

The Appellant, Frederick Beauregard, appeals from the Hardeman County Circuit Court's denial of his petition for post-conviction relief. In May of 1997, Beauregard was convicted of the rape and incest of his thirteen-year-old daughter. He received an effective sentence of nine years for the convictions. Beauregard's convictions and sentences were later affirmed on direct appeal. See State v. Beauregard, 32 S.W.3d 681 (Tenn. 2000). On February 13, 2001, Beauregard timely filed his pro se petition for post-conviction relief which was amended following appointment of counsel. Following a hearing on the merits, the trial court denied Beauregard's petition.

From this denial, Beauregard now appeals asserting that he received ineffective assistance of trial counsel in the following respects: (1) trial counsel was inadequately prepared for trial; (2) trial counsel failed to properly investigate, interview or call material witnesses at trial; (3) trial counsel failed to discuss trial strategy or the theory of the case with Beauregard; (4) trial counsel failed to review the jury list with Beauregard; (5) trial counsel failed to develop testimony with regard to the chain of custody of the rape kit and its reliability; and (6) trial counsel failed to provide expert proof to rebut the State's DNA expert. After review, we find no error and affirm the judgment of the post-conviction court.