COURT OF CRIMINAL APPEALS OPINIONS

State vs. Jason Weiskopf
W2000-02308-CCA-RM-CD
Authoring Judge: Judge Joe G. Riley
Trial Court Judge: Arthur T. Bennett
This case is before the court upon remand from the Supreme Court of Tennessee for reconsideration in light of State vs. Nichols, ___ S.W.3d ___ (Tenn. 2000). Previously, this court found the "weigh and consider" jury instruction to be in violation of due process. Nichols reached a contrary conclusion; therefore, we now affirm the judgment of the trial court.

State of Tennessee v. Trent Stark
W2002-03078-CCA-R3-CD
Authoring Judge: Judge Jerry Smith
Trial Court Judge: J. C. Mclin

State vs. Margaret Somerville
W1999-01333-CCA-R3-CD
Authoring Judge: Judge Cornelia A. Clark
Trial Court Judge: Julian P. Guinn
Defendant Margaret Ree Somerville was convicted by a jury of one count of possession of cocaine with intent to sell or deliver, a Class B felony, and one count of possession of drug paraphernalia, a Class A misdemeanor. Following a sentencing hearing, the trial court imposed a sentence of twelve (12) years on the felony offense and eleven (11) months, twenty-nine (29) days on the misdemeanor offense. The sentences were run concurrent to one another. Defendant challenges her convictions, asserting that (1) she was denied her right to the timely appointment of counsel; (2) the indictments against her were defective and should be quashed; and (3) the search warrant executed in this case was defective. The judgment of the trial court is affirmed.

State vs. Samuel Pegues
W1999-01865-CCA-R3-CD
Authoring Judge: Judge David H. Welles
Trial Court Judge: John Franklin Murchison
The Defendant, Samuel Pegues, was convicted of second degree murder after a jury trial. In this appeal as of right, the Defendant asserts that the evidence presented at trial is insufficient to sustain his conviction, that the trial court erred by denying proposed testimony regarding statements made by the victim on the night of the incident, and that the trial court erred by excluding the Defendant's testimony regarding statements made by the victim that she had stabbed or cut someone. We conclude that the evidence is sufficient to sustain the conviction, that the trial court did err by denying the proposed testimony of statements made by the victim but that such error was harmless, and that the Defendant has waived his issue regarding the statements of the victim that she had stabbed or cut someone. Accordingly, we affirm the judgment of the trial court.

State vs. Michael Smith
W1999-02413-CCA-R3-PC
Authoring Judge: Judge David H. Welles
Trial Court Judge: Jon Kerry Blackwood
The Defendant, Michael W. Smith, appeals as of right from the trial court's denial of post-conviction relief. On appeal, he asserts that his conviction for escape, which was entered pursuant to his guilty plea, should be set aside because the plea was entered involuntarily due to his trial counsel's ineffectiveness. We conclude that the trial court properly denied relief based on its findings that the Defendant received effective assistance of counsel and that he entered the plea knowingly and voluntarily. Accordingly, we affirm the denial of post-conviction relief.

State vs. David Wayne Salley
E1999-00203-CCA-R3-CD
Authoring Judge: Judge J. Curwood Witt, Jr.
Trial Court Judge: Phyllis H. Miller
David Wayne Salley appeals from his conviction of aggravated rape. He raises issues related to sufficiency of the evidence, jury instructions on lesser-included offenses, admission of evidence obtained pursuant to search warrants, impeachment of the defendant with prior violent felony convictions, exclusion of evidence of consensual sexual relations with the then-minor victim 21 years before the crime, deficient notice that the state was seeking Range III classification for sentencing, and an excessive sentence. Because there is no error requiring reversal, we affirm.

State of Tennessee v. Calvin Otis Tanksley
M1998-00683-CCA-R3-CD
Authoring Judge: Judge David G. Hayes
Trial Court Judge: Judge Seth W. Norman

The appellant, Calvin Otis Tanksley, was convicted by a Davidson County Jury of one count of rape of a child and one count of attempted rape of a child. Based on his classification as a repeat violent offender, the appellant was sentenced upon each count to two consecutive sentences of life without parole. Upon appeal, the appellant raises the following issues: (1) whether the evidence was sufficient to support the verdicts; (2) whether the court erred in ruling the defendant's prior bad acts could be introduced by the State if the defendant presented an alibi defense; (3) whether the court erred in allowing the State to introduce over four hundred pairs of women's undergarments seized from the defendant in an investigation in another county; (4) whether the trial court erred in not suppressing the photographic array; and (5) whether the appellant qualified for sentencing as a repeat violent offender. Finding no reversible error, the judgments are affirmed.

State of Tennessee v. Donald Marbley
M1999-01212-CCA-R3-CD
Authoring Judge: Judge Robert W. Wedemeyer
Trial Court Judge: Judge W. Charles Lee

In November 1997, the Defendant, Donald Marbley, was arrested for aggravated robbery in Lincoln County. Approximately two weeks after being released on bond, the Defendant was arrested in Marshall County for attempted aggravated robbery and aggravated assault. The Defendant was found guilty by a Lincoln County jury of aggravated robbery and sentenced to seventeen years as a Range II multiple offender. The Defendant pleaded guilty to the Marshall County attempted aggravated robbery charge and was sentenced to eight years as a Range II multiple offender. The two sentences were to be served consecutively, for a total sentence of twenty-five years as a Range II multiple offender. In this consolidated appeal, the Defendant raises the following issues: (1) whether the evidence was sufficient to support the Defendant's conviction for aggravated robbery in Lincoln County; (2) whether the Lincoln County trial court erred in admitting the Defendant's prior criminal convictions into evidence; (3) whether the trial court properly sentenced the Defendant in both the Lincoln and Marshall County cases; and (4) whether the Defendant received effective assistance of counsel in the Lincoln County case. Finding no error in the record, we affirm the judgments of the trial court.

State of Tennessee v. Joseph E. Suggs
M1999-02136-CCA-R3-CD
Authoring Judge: Judge Joe G. Riley
Trial Court Judge: Judge J. Randall Wyatt, Jr.

Defendant, Joseph E. Suggs, pled guilty to three counts of child rape, for which he received three consecutive 25-year sentences. On appeal, the defendant raises two issues: 1) whether the trial court erred by imposing the maximum sentence for each count; and 2) whether the trial court erred by imposing consecutive sentences on all counts. The judgment of the trial court is affirmed.

State of Tennessee v. Marty W. Stanfill
M1999-02492-CCA-R3-CD
Authoring Judge: Judge L. Terry Lafferty
Trial Court Judge: Judge Seth W. Norman

The appellant/defendant, Marty W. Stanfill, appeals as of right from the judgment of the Davidson County Criminal Court which imposed a sentence of eight (8) years in indictment No. 97-B-1320, for the state offense of unlawful possession of cocaine with the intent to sell or deliver. The trial court ordered this sentence to be served consecutively to a federal conviction, No. 3:97-00087, for conspiracy to distribute cocaine. At the same sentencing hearing, in indictment No. 99-B-865, the trial court imposed, in three separate counts, two (2) eight (8) year sentences for unlawful possession of cocaine with intent to sell or deliver, and one (1) year for the unlawful possession of a weapon. These sentences were to be served concurrently with case No. 97-B-1320 and the federal conviction, No. 3:97-00087, imposed by the U.S. District Court for Middle Tennessee at Nashville. The defendant presents one appellate issue: Whether the trial court erred in imposing an eight (8) year sentence in case No. 97-B-1320, consecutive to federal case No. 3:97-00087? After a complete review of the record, briefs of the parties and applicable law, we vacate the judgment of conviction and remand the case for further proceedings.

State of Tennessee v. Daniel Patrick Byrd
E1999-01483-CCA-R3-CD
Authoring Judge: Judge Alan E. Glenn
Trial Court Judge: Judge James B. Scott, Jr.

The defendant was convicted of driving under the influence, second offense, and received a sentence of eleven months and twenty-nine days. The defendant was ordered to serve forty-five days in continuous confinement and five days on the weekends, with the remainder of his sentence to be served on probation. In this appeal as of right, the defendant makes the following allegations of error: (1) the trial court used an invalid judgment to elevate his DUI charge to a DUI second; (2) the trial court's initial denial of an appeal bond violated the Double Jeopardy Clause of the United States and Tennessee Constitutions; and (3) the trial court incorrectly concluded it was not authorized to grant work release or periodic confinement during the defendant's mandatory minimum period of incarceration for DUI. After a thorough review of the record, we conclude the trial court did not commit the above errors and affirm the defendant's conviction and sentence.

State of Tennessee vs. Nicholas O'Connor/Nikol Lekin
W1998-00015-CCA-R3-CD
Authoring Judge: Judge John Everett Williams
Trial Court Judge: Judge Carolyn Wade Blackett

This is a case involving two defendants: O'Connor, the mother's friend, was convicted of Aggravated Child Abuse through injury and Aggravated Child Abuse through neglect. Lekin, the mother, was convicted of Aggravated Child Abuse through neglect. We affirm the conviction of Aggravated Child Abuse through injury, as we hold that a four-year-old who received a skull fracture, epidural bleeding, swelling and bruising around the eyes and face, and the pain associated with said injuries has sustained "serious bodily injury." Further, we find sufficient evidence to support both convictions for Aggravated Child Abuse through neglect. Finally, we reject the arguments that the state was required to elect a specific "serious bodily injury" and that Aggravated Child Abuse through neglect is not an offense in Tennessee.

State of Tennessee v. Ronald Weeks, Sr. - Dissenting
W1998-00022-CCA-R3-CD
Authoring Judge: Judge Norma McGee Ogle
Trial Court Judge: Judge James C. Beasley, Jr.

I must respectfully dissent because, while I agree that the appellant’s confession to the police should have been suppressed, I do not believe that the trial court’s admission of the confession at trial constituted reversible error.

State of Tennessee vs. Eugene A. Turner
W1999-01866-CCA-R3-CD
Authoring Judge: Judge Joe G. Riley
Trial Court Judge: Jon Kerry Blackwood

Defendant appeals his jury convictions on two counts of premeditated first degree murder for which he received concurrent life sentences. The following issues are presented for our review: (1) whether the evidence was sufficient to support the convictions; (2) whether the trial court erred in disallowing impeachment evidence against a state witness; (3) whether the trial court erroneously admitted evidence of defendant being a beneficiary of life insurance policies on one of the victims; (4) whether the trial court erroneously admitted inflammatory evidence relating to the crime scene; (5) whether the trial court erred in allowing evidence of alleged threats made by the defendant; (6) whether the trial court erred in allowing evidence of a prior argument between the defendant and one of the victims; and (7) whether the trial court erred in disallowing evidence of defendant's failure to flee and avoid arrest. We affirm the judgments of the trial court.

State of Tennessee v. Philip Shead, Jr.
W2000-00106-CCA-R3-CD
Authoring Judge: Judge David G. Hayes
Trial Court Judge: Judge Roy B. Morgan, Jr.

The appellant, Phillip Shead Jr., appeals from the order of the Madison County Circuit Court revoking his probation and reinstating his original eight year sentence in the Department of Correction. We affirm the judgment of the trial court pursuant to Rule 20, Tenn. Ct. Crim. App. R

Antonio Bonds v. State of Tennessee
W2006-00343-CCA-R3-CO
Authoring Judge: Judge David G. Hayes
Trial Court Judge: Paula L. Skahan

State vs. Raymond Jackson Collins
E1999-00233-CCA-R3-CD
Authoring Judge: Judge John Everett Williams
Trial Court Judge: R. Jerry Beck
The defendant appeals from his conviction of, and four-year sentence for, violation of a habitual traffic offender order, failure to stop for a red light, and violation of the seat belt law. He asserts that insufficient evidence supported the verdict, that the imposed sentence was excessive, and that the trial court improperly denied alternative sentencing. We affirm the convictions and sentence, holding that sufficient evidence supported the verdict and that the trial court properly sentenced the defendant.

State vs. Richard Allan Frye
E1999-01564-CCA-R9-RL
Authoring Judge: Judge Alan E. Glenn
Trial Court Judge: Phyllis H. Miller
This appeal arises from the order of the Sullivan County Criminal Court upholding the district attorney general's refusal to accept the application of the defendant for pretrial diversion. The defendant asserts that the trial court erred in failing to determine that the district attorney general abused his discretion by relying on facts not supported by the evidence and by failing to consider all relevant factors. We conclude that substantial evidence was before the district attorney general to support the validity of each of the four factors relied on in denying pretrial diversion and that the district attorney general considered all relevant factors. Accordingly, the judgment of the trial court is affirmed.

State vs. Joy A. Stinson
E1999-02082-CCA-R3-CD
Authoring Judge: Judge Alan E. Glenn
Trial Court Judge: James B. Scott, Jr.
The defendant was convicted of one count of theft of property over $1,000 for her unauthorized charge of items at a retail store to her former employer's account. The trial court sentenced her to four years imprisonment, with three years suspended. On appeal, the defendant presents the issues of whether the trial court erred in allowing the State to introduce the testimony of an alibi rebuttal witness whom the State did not identify as a witness prior to trial, and in allowing the State to present evidence which she alleges tied her to an uncharged crime. Based upon our review, we affirm the judgment of the trial court.

State vs. George O. Mears
M1999-01229-CCA-R3-CD
Authoring Judge: Judge Norma McGee Ogle
Trial Court Judge: Don Ash
The appellant, George O. Mears, appeals his conviction in the Cannon County Circuit Court of driving under the influence of an intoxicant, second offense. Pursuant to the appellant's conviction, the trial court imposed a sentence of eleven months and twenty-nine days incarceration in the Cannon County Jail, suspending all but six months of the appellant's sentence and placing him on probation. On appeal, the appellant presents the following issues for our review: (1) whether the trial court erred in permitting the prosecutor to comment to the jury about the appellant's failure to call a witness and in providing a "missing witness" instruction to the jury; (2) whether the evidence adduced at the appellant's trial is sufficient to support the jury's verdict of guilt; and (3) whether the trial court erred in sentencing the appellant. Following a review of the record and the parties' briefs, we reverse the judgment of the trial court and remand this case for a new trial.

State vs. Damon Theodore Marsh
M1999-01879-CCA-R3-CD
Authoring Judge: Judge Joe G. Riley
Trial Court Judge: W. Charles Lee
Defendant, Damon Theodore Marsh, appeals his conviction for second degree murder, for which he received a sentence of 23 years and 6 months. On appeal, the defendant raises the issue of sufficiency of the evidence to support his conviction. We conclude that the issue raised by the defendant in this appeal is without merit. The judgment of the trial court is affirmed.

State vs. Douglas Canady
M1999-02135-CCA-R3-CD
Authoring Judge: Judge Joe G. Riley
Trial Court Judge: Timothy L. Easter
Defendant, Douglas Canady, appeals his conviction for aggravated robbery, for which he received a sentence of ten years in the Department of Correction. The sole issue in this appeal is whether the evidence is sufficient to support the verdict. Finding the evidence sufficient, we affirm the judgment of the trial court.

State vs. Michael A. Janosky
M1999-02574-CCA-R3-CD
Authoring Judge: Judge David G. Hayes
Trial Court Judge: Cheryl A. Blackburn
Michael Janosky appeals from his conviction of driving under the influence. In this direct appeal, he challenges his conviction based upon (1) erroneous admission of breath alcohol test results which he contends were involuntarily obtained and (2) the results of the breath test were not administered in accordance with the requirements of State vs. Sensing. As to issue (1), we hold that, absent a motorist's express refusal, consent to a breath test is deemed voluntary as a matter of law. With reference to issue (2), the improper administration of the breath test, we find this issue waived because it was not included in the appellant's motion for new trial. Tenn. R. App. P. 3(e). Accordingly, we affirm the judgment entered by the trial court.

State vs. Dyron H. Yokley
M1999-00290-CCA-R3-CD
Authoring Judge: Judge Jerry Smith
Trial Court Judge: Robert L. Jones
Pursuant to a plea agreement, Dyron Yokley, the defendant and appellant, entered "best interest" pleas to four (4) counts of aggravated robbery. The plea agreement provided that the "[d]efendant is to receive an [eight] 8 year package with a sentencing hearing to determine any alternative sentencing, if applicable." Following a sentencing hearing, the trial court sentenced the defendant to eight years for each count, concurrently, as provided in the plea agreement. Relying primarily on the defendant's criminal history and previous sentences of probation, the court ordered the defendant to serve his sentence in the Tennessee Department of Corrections. The defendant now appeals, arguing that all parties were unaware that the defendant was statutorily ineligible for probation and that his plea was thus involuntarily given. Because we find this matter is a post-conviction issue rather than one properly raised at this time, we affirm the judgment of the trial court

State vs. Chris Wilson a/k/a Calvin Clark
M1998-00395-CCA-R3-CD
Authoring Judge: Judge David G. Hayes
Trial Court Judge: John H. Gasaway, III
Following a "best interest" plea to one count of aggravated burglary, the appellant was sentenced to a term of five years in the Department of Correction. On appeal, he challenges (1) the length of the sentence and (2) the imposition of a sentence of total confinement. After review, we affirm.