September 11, 2001 Volume 7 — Number 166 What follows is the case style or name, first paragraph, author's name, and the names of attorneys for the parties of each opinion released eletronically today to TBALink. This Issue (IN THIS ORDER):   01 New Opinion(s) from the Tennessee Supreme Court 00 New Opinion(s) from the Tennessee Supreme Court Workers' Compensation Panel 00 New Document(s) or Proposed Rule(s) from the Tennessee Supreme Court 07 New Opinion(s) from the Tennessee Court of Appeals 15 New Opinion(s) from the Tennessee Court of Criminal Appeals 00 New Opinion(s) from the Tennessee Attorney General (PDF format) 00 New Judicial Ethics Opinion(s) 00 New Formal Ethics Opinion(s) from the Board of Professional Responsibility   There are three ways for TBALink members to get the full-text versions of these opinions from the Web: Do a key word search in the Search Link area of TBALink. This option will allow you to view and save a plain-text version of the opinion. Browse the Opinion List area of TBALink. This option will allow you to download the original version of the opinion. Click the URL at end of each Opinion paragraph below. This option will allow you to download the original document. Howard H. Vogel Knoxville, Tennessee Editor-in-Chief, TBALink STATE OF TENNESSEE v. LARRY ALLEN HICKS Court:TSC Attorneys: Jerry H. Summers, Chattanooga, Tennessee, for the appellant, Larry Allen Hicks. Paul G. Summers, Attorney General and Reporter; Michael E. Moore, Solicitor General; Daryl J. Brand, Associate Solicitor General, Nashville, Tennessee, for the appellee, State of Tennessee. Judge: BARKER First Paragraph: The primary issue in this case is whether drivers' license roadblocks are constitutionally reasonable under Article I, section 7 of the Tennessee Constitution. After officers stopped the appellant at a drivers' license checkpoint, they discovered marijuana in the front seat of his car. The appellant later successfully moved to suppress the evidence, arguing that the roadblock did not conform to this Court's decision in State v. Downey, 945 S.W.2d 102 (Tenn. 1997). The State appealed to the Court of Criminal Appeals, which reversed the trial court and found that the roadblock was constitutionally reasonable. We granted permission to appeal and hold that the roadblock in this case was established and operated contrary to Article I, section 7 and our decision in Downey. We reverse the judgment of the Court of Criminal Appeals. http://www.tba.org/tba_files/TSC/hickslarry.wpd ANDERSON CONCURRING http://www.tba.org/tba_files/TSC/hickslarry_con.wpd DROWOTA CONCURRING AND DISSENTING http://www.tba.org/tba_files/TSC/hickslarry_dis.wpd JAMES GARRETT, et al. v. ISIAH ROWSER Court:TCA Attorneys: Charles Ronald Curbo, Memphis, Tennessee, for the appellant Isiah Rowser. Patricia A. Odell, Memphis, Tennessee, for the appellees James Garrett, Bennie Steward, Thomas R. Tabor, Pressie Wells, Aaron Bohanon, Jake Holston, Lula Manley, Alfred Chaney, George Kelly, Providence Clark, Edwin Henderson, Eddie Pickens, S.L. Henderson, and Hugh Golden Judge: LILLARD First Paragraph: This is a dispute among the members and officials of a church and the church pastor. The plaintiff church members and officials filed for injunctive relief against the defendant pastor of the church, seeking to remove him as pastor and prevent him from disposing of or eroding church assets. The trial court enjoined the pastor defendant from disposing of, eroding or concealing church assets, and also ordered an election. Under the court-ordered church election, the defendant was removed as pastor of the church. Subsequently, the defendant pastor executed a trust deed encumbering certain church properties. After the trust deed was foreclosed and the property was sold at a foreclosure sale, the defendant pastor filed a counter-complaint in the pending suit, alleging that he was the successful bidder at the foreclosure sale and that title of the church property should be transferred to him. In payment of his bid, the defendant pastor tendered bonds issued by the church. The trial court referred to a special master eight issues relating to the ownership and value of the bonds. The special master and trial court found that the defendant pastor had not established that he paid for the bonds. The defendant pastor appeals, arguing that the trial court erred in its finding on the bonds and that it failed to address or take evidence on additional issues raised in his counter- complaint. We affirm the decision of the trial court on the bonds, but remand the cause for proof on the remaining issues. http://www.tba.org/tba_files/TCA/garrettja.wpd WENDY KING v. TIMOTHY KING Court:TCA Attorneys: Robert W. Newman, John P. Partin, McMinnville, TN, for Appellant Keith S. Smart, McMinnville, TN, for Appellee Judge: HIGHERS First Paragraph: This appeal arises from a divorce and custody dispute. The trial court awarded custody of the parties' four minor children to the father, and the court awarded the mother liberal visitation. The mother appeals the decision of the court below. For the following reasons, we affirm in part, reverse in part, and remand to the trial court for further proceedings consistent with this opinion. http://www.tba.org/tba_files/TCA/kingwendy.wpd CARL O. KOELLA, JR., v. FRED McHARGUE and wife, GRACE McHARGUE Court:TCA Attorneys: Frank M. Fly and Mark J. Downton, Murfreesboro, Tennessee, for Appellants, Fred and Grace McHargue. Robert L. Kahn, Knoxville, Tennessee, for Appellee, Maribel Koella. Judge: FRANKS First Paragraph: Defendants have right of first refusal on tract of real property. The Trial Court held that the giving of a quitclaim deed did not trigger the right of first refusal. Defendants appealed, we affirm. http://www.tba.org/tba_files/TCA/koellac.wpd GLORIA B. LANE v. W. J. CURRY & SONS Court:TCA Attorneys: Elder Shearon, III, Memphis, Tennessee, for the appellant Gloria B. Lane. Robert A. Cox, Memphis, Tennessee, for the appellee W. J. Curry & Sons. Judge: LILLARD First Paragraph: This case involves a dispute about the responsibility for trees on adjacent properties. The plaintiff and defendant own adjacent properties. Located on the defendant's property are three large oak trees whose branches overhang the plaintiff's roof. The roots from the trees grow onto the plaintiff's property and have infiltrated the plaintiff's sewer lines on several occasions. After a limb from one of the trees fell through the plaintiff's roof, the plaintiff complained to the defendant. The defendant twice sent someone to cut back the trees' branches. The plaintiff continued to complain about the trees, and the defendant refused to provide any additional assistance. This lawsuit ensued. The trial court found that the plaintiff's only remedy was self-help. The plaintiff now appeals. We affirm. http://www.tba.org/tba_files/TCA/laneg.wpd RUDOLPH POWERS v. SGT. JOEL SMITH, et al. Court:TCA Attorneys: Rudolph Powers, Tiptonville, Tennessee, Pro Se. Paul G. Summers, Attorney General and Reporter, Michael E. Moore, Solicitor General, and Terri L. Bernal, Assistant Attorney General, for the appellees, Sgt. Joel Smith, Warden Fred Raney, and Commissioner Donal Campbell. Judge: LILLARD First Paragraph: This is an appeal by a prisoner plaintiff seeking review of a disciplinary action by prison officials. The trial court dismissed plaintiff's petition for review because he failed to file it within sixty days as required by Tennessee Code Annotated S 27-9-102. On appeal, we affirm. http://www.tba.org/tba_files/TCA/powersr.wpd DANA ALLANMORE SMITH v. ANGELA CHILDRESS SMITH Court:TCA Attorneys: Penny Harrington, Nashville, For Appellant, Dana Allanmore Smith Wende J. Rutherford, Nashville, For Appellee, Angela Childress Smith Judge: CRAWFORD First Paragraph: In this post-divorce proceeding, wife filed petition to modify the prior decree as to child support, custody, and visitation. The trial court modified a previous consent order and set husband's child support with an upward deviation from the guidelines. Husband appeals, and both parties present issues for review. We affirm in part, reverse in part, and remand. http://www.tba.org/tba_files/TCA/smithdana.wpd ANTONIO L. SWEATT v. BILLY COMPTON, et al. Court:TCA Attorneys: Antonio L. Sweatt, Nashville, pro se Paul G. Summers, Attorney General and Reporter; Michael E. Moore, Solicitor General; Mark A. Hudson, Senior Counsel, Nashville, for Appellees Judge: HIGHERS First Paragraph: This appeal arises from a specialist physicianÕs recommendation that the Appellant, an inmate, undergo nasal surgery. The Utilization Review Committee of the Tennessee Department of Correction denied the AppellantÕs recommended surgery. The Appellant filed a complaint against the Appellees, prison employees of the Lake County Regional Correctional Facility, alleging federal constitutional violations, negligence, and medical malpractice. The Appellees filed a motion for summary judgment. The trial court granted the motion for summary judgment. On appeal, this Court reversed the grant of summary judgment in favor of the Appellees on the Eighth Amendment claim that arose out of the delay in the recommended surgery and remanded for further discovery. This Court affirmed the grant of summary judgment in favor of the Appellees on all other claims. The trial court permitted the parties to conduct further discovery on the Eighth Amendment claim concerning the delay in the recommended surgery. The trial court granted summary judgment to the Appellees. The Appellant appeals the trial courtÕs grant of summary judgment in favor of the Appellees. For the reasons stated herein, we affirm the trial courtÕs decision. http://www.tba.org/tba_files/TCA/sweattantonioL.wpd STATE OF TENNESSEE v. RICKIE BOYD Court:TCCA Attorneys: Rebecca G. Coffee and Louis P. Chiozza, III, Memphis, Tennessee, for appellant, Rickie Boyd. Paul G. Summers, Attorney General & Reporter; J. Ross Dyer, Assistant Attorney General; William L. Gibbons, District Attorney General; and Jennifer Nichols, District Attorney General, for appellee, State of Tennessee. Judge: SMITH First Paragraph: The defendant, Rickie Boyd, was convicted by a Shelby County, Tennessee jury of the offense of aggravated robbery. He was sentenced to 18 years incarceration as a Range II, multiple offender. In this appeal he maintains the trial court erred in failing to instruct the jury with respect to the lesser included offense of theft of property. We conclude that is was error to fail to instruct the jury with respect to theft of property. However, we also conclude that this error was harmless beyond a reasonable doubt, and we therefore affirm the judgment of the trial court. http://www.tba.org/tba_files/TCCA/boydrickie.wpd GEORGE CAMPBELL, JR. v. STATE OF TENNESSEE Court:TCCA Attorneys: Marty McAfee (on appeal) and Michael E. Scholl (at trial), Memphis, Tennessee, for the appellant, George Campbell, Jr. Paul G. Summers, Attorney General and Reporter; John H. Bledsoe, Assistant Attorney General; William L. Gibbons, District Attorney General; and Elaine Sanders, Assistant District Attorney General, for the appellee, State of Tennessee. Judge: GLENN First Paragraph: The petitioner appeals the dismissal of his petition for post-conviction relief, arguing that the post- conviction court erred in finding that he had effective assistance of trial counsel. After a careful review of the record, we conclude that the petitioner failed to meet his burden of proving ineffective assistance of counsel. Accordingly, we affirm the post-conviction court's dismissal of the petition for post-conviction relief. http://www.tba.org/tba_files/TCCA/campbellgeorge.wpd STATE OF TENNESSEE v. KENNETH CHAMBLY Court:TCCA Attorneys: Ardena J. Garth, District Public Defender, and Donna Robinson Miller, Assistant District Public Defender (on appeal and on motion for new trial), and James F. Logan, Jr., Cleveland, Tennessee (at trial), for the appellant, Kenneth Chambly. Paul G. Summers, Attorney General and Reporter; Elizabeth B. Marney, Assistant Attorney General; William H. Cox, III, District Attorney General; and Kelli Black, Dara Draper, and Rodney C. Strong, Assistant District Attorney Generals, for the appellee, State of Tennessee. Judge: TIPTON First Paragraph: The defendant, Kenneth Chambly, appeals his convictions for three charges of aggravated sexual battery for which he received an effective sentence of ten years without parole. He raises various issues on appeal. We reverse the convictions and remand the case for a new trial because of the failure of the state to elect offenses and the failure of the trial court to instruct the jury regarding the need for offense unanimity in the verdict. We also conclude that the trial court imposed an improper sentence of ten years for one of the convictions. http://www.tba.org/tba_files/TCCA/chamblyk.wpd STATE OF TENNESSEE v. GABRIEL ANTONIO CLARK Court:TCCA Attorneys: Daniel J. Taylor, Jackson, Tennessee, for the Appellant, Gabriel Antonio Clark. Paul G. Summers, Attorney General and Reporter; Michael Moore, Solicitor General; Laura McMullen Ford, Assistant Attorney General; James G. (Jerry) Woodall, District Attorney General; and Al Earls, Assistant District Attorney General, for the Appellee, State of Tennessee. Judge: HAYES First Paragraph: The Appellant, Gabriel Antonio Clark, was convicted by a Madison County jury for one count of felony murder and one count of aggravated robbery. Clark was sentenced to life imprisonment for the murder conviction and, following a sentencing hearing, received a twelve-year sentence for aggravated robbery. The sentences were ordered to be served consecutively. On appeal, Clark raises the following issues for our review: (1) Whether the evidence presented at trial is sufficient to support his convictions; and (2) whether the trial court erred by failing to exclude or redact a portion of Clark's statement to police which he contends was highly prejudicial and in violation of Tenn. R. Evid. 403. After review, we find no reversible error and affirm the judgment of the trial court. http://www.tba.org/tba_files/TCCA/clarkga.wpd RONALD CRAFTON v. JAY DUKES, Warden Court:TCCA Attorneys: Ronald Crafton, Henning, Tennessee, Pro Se. Paul G. Summers, Attorney General and Reporter; and Mark E. Davidson, Assistant Attorney General, for the appellee, State of Tennessee. Judge: GLENN First Paragraph: The petitioner appeals the trial court's dismissal of his petition for habeas corpus relief. The trial court determined that the allegations contained in the petitioner's pro se petition were not ones that would entitle him to habeas corpus relief, and therefore dismissed his petition. After a careful review of the record, we affirm the trial court's dismissal of the petition. http://www.tba.org/tba_files/TCCA/craftonronald.wpd STATE OF TENNESSEE v. LARRY DEAN DICKERSON Court:TCCA Attorneys: Garry Brown, Milan, Tennessee (at trial), and Clifford K. McGown, Jr., Waverly, Tennessee (on appeal), for the appellant, Larry Dean Dickerson. Paul G. Summers, Attorney General and Reporter; Kim R. Helper, Assistant Attorney General; Clayburn L. Peeples, District Attorney General; Edward L. (Larry) Hardister and Harold E. (Hal) Dorsey, Assistant District Attorneys General, for the appellee, State of Tennessee. Judge: RILEY First Paragraph: The defendant appeals his premeditated first degree murder conviction for which he received a life sentence, arguing: (1) the evidence was not sufficient to convict him of first degree murder; (2) he should have been granted a mistrial due to the prosecutor's improper statements during closing arguments; and (3) he was entitled to a special jury instruction regarding diminished capacity. After reviewing the record, we affirm the judgment of the trial court. http://www.tba.org/tba_files/TCCA/dickersonl.wpd ELMER L. FRITTS, SR. v. JAMES M. DUKES, Warden, and STATE OF TENNESSEE Court:TCCA Attorneys: Elmer L. Fritts, Sr., Henning, Tennessee, Pro Se. Paul G. Summers, Attorney General and Reporter, and Kim R. Helper, Assistant Attorney General, for the appellee, State of Tennessee. Judge: GLENN First Paragraph: Petitioner appeals the summary dismissal of his petition for habeas corpus relief which alleged that the charges against him were untrue, that the statutes of limitations as to the charges had expired before he was charged, and that his counsel was ineffective. The post-conviction court determined that the allegations contained in the petitioner's pro se petition did not entitle him to habeas corpus relief. After careful review of the record, we affirm the dismissal of the petition. http://www.tba.org/tba_files/TCCA/frittselmerl.wpd STATE OF TENNESSEE v. CHARLES GOODE Court:TCCA Attorneys: A. C. Wharton, District Public Defender, Tony N. Brayton, Assistant District Public Defender, R. Trent Hall, Assistant District Public Defender. Paul G. Summers, Attorney General, Mark A. Fulks, Assistant Attorney General, William L. Gibbons, District Attorney General, Patience Branham, Assistant District Attorney General. Judge: CLARK First Paragraph: Charles Goode was convicted by a jury of aggravated rape, and was sentenced to twenty-five (25) years in the Department of Correction. He challenges the sufficiency of the evidence and the actions of the judge in sentencing him to serve the maximum sentence. We affirm the judgment of the trial court. http://www.tba.org/tba_files/TCCA/goodec.wpd TARRAN KYLES v. STATE OF TENNESSEE Court:TCCA Attorneys: Tarran Kyles, Henning, Tennessee, Pro Se. Paul G. Summers, Attorney General and Reporter; Michael Moore, Solicitor General; John H. Bledsoe, Assistant Attorney General; James G. (Jerry) Woodall, District Attorney General; and Al Earls, Assistant District Attorney General, for the Appellee, State of Tennessee. Judge: HAYES First Paragraph: The Appellant, Tarran Kyles, proceeding pro se, appeals from the order of the Madison County Circuit Court denying his petition for post-conviction relief. The post-conviction court in a "Preliminary Order"dismissed Kyles' petition, finding that the only issue raised in the petition was previously determined on direct appeal. For the reasons stated below, we affirm the judgment of the post-conviction court dismissing the petition without an evidentiary hearing. http://www.tba.org/tba_files/TCCA/kylestarran.wpd STATE OF TENNESSEE v. JASON ALLEN MOBLEY and DEBRA JEAN MOBLEY Court:TCCA Attorneys: Victoria L. DiBonaventura, Paris, Tennessee (on appeal); Jude P. Santana, Camden, Tennessee (at trial) for appellant, Jason Allen Mobley; and Raymond L. Ivey, Huntingdon, Tennessee (at trial) for appellant, Debra Jean Mobley. Paul G. Summers, Attorney General and Reporter; John H. Bledsoe, Assistant Attorney General; Robert Radford, District Attorney General; and Steven L. Garrett, Assistant District Attorney General, for the appellee, State of Tennessee. Judge: GLENN First Paragraph: Following a police search of their home pursuant to a warrant, the defendants, mother and son, were each indicted on one count of possession of marijuana with the intent to manufacture, sell, or deliver, a Class E felony, and one count of possession of drug paraphernalia, a Class A misdemeanor. At the conclusion of their joint trial, the son was found guilty of both counts as charged in the indictment. The jury found the mother guilty of simple possession of marijuana, a Class A misdemeanor, and possession of drug paraphernalia. The trial court denied their motions for new trials, and the defendants filed timely appeals to this court. On appeal, the defendants challenge the sufficiency of the evidence in support of their respective convictions. The State raises the additional issue of whether the defendants may properly be represented by the same appellate counsel when the record is silent concerning whether the trial court addressed the possible conflict created by the joint representation. After a careful review of the record and an analysis of applicable law, we affirm the judgments of the trial court. http://www.tba.org/tba_files/TCCA/mobleyjasonadebraj.wpd STATE OF TENNESSEE v. EDDIE HOWARD PITTMAN Court:TCCA Attorneys: George Morton Googe, District Public Defender (at trial and on appeal); Michael D. Rasnake, Assistant District Public Defender (at trial and on appeal); and C. Michael Robbins, Memphis, Tennessee (on appeal), for the appellant, Eddie Howard Pittman. Paul G. Summers, Attorney General and Reporter; Mark E. Davidson, Assistant Attorney General; James G. (Jerry) Woodall, District Attorney General; and James W. Thompson, Assistant District Attorney General, for the appellee, State of Tennessee. Judge: RILEY First Paragraph: The defendant appeals his convictions for attempted second degree murder and felony possession of a weapon, arguing that he was denied his right to a unanimous jury verdict by the trial court's failure to require the prosecution to make an election of facts supporting the attempted murder. After a thorough review of the record, we conclude that neither an election nor enhanced unanimity instruction was required. Thus, we affirm the judgment of the trial court. http://www.tba.org/tba_files/TCCA/pittmaneh.wpd STATE OF TENNESSEE v. DONALD STEVE SIKES Court:TCCA Attorneys: C. Michael Robbins, Memphis, Tennessee (on appeal); George Morton Googe, District Public Defender; and Vanessa D. King, Assistant Public Defender (at trial and on appeal), for the appellant, Donald Steve Sikes. Paul G. Summers, Attorney General and Reporter; J. Ross Dyer, Assistant Attorney General; James G. Woodall, District Attorney General; and Shaun A. Brown, Assistant District Attorney General, for the appellee, State of Tennessee. Judge: GLENN First Paragraph: As the result of an altercation with the manager of a fast food restaurant, the defendant was convicted by a jury of aggravated assault, a Class C felony; assault, a Class A misdemeanor; unlawful possession of a handgun while under the influence, a Class A misdemeanor; and the unlawful possession of a weapon with the intent to go armed, as a Class C misdemeanor. He was sentenced by the trial court to an effective sentence of four and one-half years, with 150 days in confinement, and the remainder of his time on intensive probation. Following the denial of his motion for a new trial, the defendant filed a timely appeal to this court, raising the issues of whether the evidence was sufficient to support his convictions of possession of a weapon with the intent to go armed and possession of a handgun while under the influence, and whether the trial court erred in enhancing his aggravated assault sentence to four and one-half years and sentencing him to intensive probation. Based on a careful review, we conclude that the evidence was sufficient to support the defendant's convictions, and that the trial court did not err in enhancing the defendant's sentence for aggravated assault. Accordingly, we affirm the judgment of the trial court. http://www.tba.org/tba_files/TCCA/sikesdonalds.wpd STATE OF TENNESSEE v. RANDALL KEITH SMITH Court:TCCA Attorneys: Rosella M. Shackelford, Paris, Tennessee, for the Appellant, Randall K. Smith Paul G. Summers, Attorney General and Reporter; Michael Moore, Solicitor General; John H. Bledsoe, Assistant Attorney General; Robert "Gus" Radford, District Attorney General; and Steven L. Garrett, Assistant District Attorney General, for the Appellee, State of Tennessee. Judge: HAYES First Paragraph: The Appellant, Randall Keith Smith, appeals from the denial of his motion to suppress evidence seized in his residence during the execution of a search warrant. A written "motion to suppress" was filed with the clerk on the day prior to Smith's scheduled trial for drug charges. On the date of trial, following the close of all proof in the case, Smith's trial counsel orally moved to suppress the evidence seized as a result of the search, based upon the grounds recited in the written motion. The trial court denied the motion, finding that (1) there was no factual basis to support suppression; and (2) the motion was untimely. The jury found Smith guilty of manufacturing methamphetamine, a class C felony, and he received a three-year community corrections sentence. After review, we find the Appellant's suppression motion untimely. Accordingly, the judgment is affirmed. http://www.tba.org/tba_files/TCCA/smithrandallk.wpd STATE OF TENNESSEE v. LARRY MITCHEL WATSON Court:TCCA Attorneys: David Neal Brady, District Public Defender; Cynthia Lyons, Assistant Public Defender, for the appellant, Larry Mitchel Watson. Paul G. Summers, Attorney General & Reporter; Peter M. Coughlan, Assistant Attorney General; William E. Gibson, District Attorney General; Anthony Craighead, Assistant District Attorney General, for the appellee, State of Tennessee. Judge: WITT First Paragraph: The defendant, Larry Mitchel Watson, appeals his conviction and sentence for felony reckless endangerment in the Cumberland County Criminal Court. On appeal, the defendant argues that the evidence was insufficient to sustain his felony reckless endangerment conviction and that the trial court improperly sentenced him. Because the jury was erroneously instructed on felony reckless endangerment as a lesser-included offense of aggravated assault, we reverse his conviction for that offense and remand the cause for a new trial in accordance with this opinion. http://www.tba.org/tba_files/TCCA/watsonlm.wpd STATE OF TENNESSEE v. STEVEN LEE WHITEHEAD Court:TCCA Attorneys: Sam J. Watridge, Humboldt, Tennessee, for the appellant, Steven Lee Whitehead. Paul G. Summers, Attorney General and Reporter; Kim R. Helper, Assistant Attorney General; Jerry Woodall, District Attorney General; and Jody Pickens, Assistant District Attorney General, for the appellee, State of Tennessee. Judge: MCGEE OGLE First Paragraph: The appellant, Steven Lee Whitehead, was convicted by a jury in the Madison County Circuit Court of three counts of rape. Pursuant to the appellant's convictions, the trial court imposed concurrent sentences of ten years incarceration in the Tennessee Department of Correction. On appeal, the appellant presents the following issues for our review: (1) whether the trial court erred in excluding at the appellant's trial evidence of other sexual behavior by the victim; (2) whether the trial court erred in excluding evidence of prior false testimony by the victim; (3) whether the trial court erred in failing to either exclude DNA evidence or, in the alternative, grant the appellant a continuance of the trial date; (4) whether the trial court erred in excluding evidence concerning the appellant's character; (5) whether the evidence adduced at trial is sufficient to support the appellant's convictions of rape; and (6) whether the trial court erred in failing to instruct the jury on sexual battery as a lesser-included offense of each count of rape. Following a thorough review of the record and the parties' briefs, we reverse the judgments of the trial court due to the court's failure to instruct the jury on sexual battery, and we remand these cases for a new trial. http://www.tba.org/tba_files/TCCA/whiteheadsl.wpd PLEASE FORWARD THIS E-MAIL! Feel free to forward this Opinion Flash on to anyone you know of with an e-mail address. GET A FULL-TEXT COPY OF AN OPINION! See the intrsuctions at the beginning of this edition of Opinion Flash. JOIN TBALink! While Opinion Flash is a free service of the Tennessee Bar Association, you must be a subscriber to TBALink, the premier Web site for Tennessee attorneys, in order to access the full-text of the opinions or enjoy many other features of TBALink. TBA members may join TBALink for just $50 per year. To join, go to: http://www.tba.org/join.html/ SUBSCRIBE TO OPINION FLASH! Would you like to receive the TBALink Opinion Flash free each day by e-mail? 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