THE ANNUAL ETHICS ROADSHOW:
Just Sign Here . . . Conflict Waivers and Engagement Letters Under
Tennessee's New Rules

Dec. 16 - Knoxville
Dec. 17 - Chattanooga

With the advent of the new Tennessee Rules of Professional Conduct,
Tennessee lawyers now are required to follow their own advice when it
comes to having clients waive conflicts of interest. But who really
understands how to do this in a way that effectively communicates
what's important to the client, protects the lawyer from exposure down
the road, and complies with the ethics rule itself in the here and
now?

This three-hour seminar will be taught by either Lucian T. Pera
or Brian S. Faughnan, each of Armstrong Allen in Memphis. Lucian is
chair of the TBA Standing Committee on Ethics and Professional
Responsibility, and Brian practices law with Lucian in the area of
ethics and professional responsibility and is a frequent CLE speaker.

Today's Opinions: December 13, 2004
Volume 10 — Number 238
Following this index are summaries of each case, including its name, first paragraph, author's name, and the names of attorneys for the parties of each opinion.
00 New Opinion(s) from the Tennessee Supreme Court
00 New Opinion(s) from the Tennessee Supreme Court Workers' Compensation Panel
01 New Document(s) or Proposed Rule(s) from the Tennessee Supreme Court
06 New Opinion(s) from the Tennessee Court of Appeals
16 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

TBA members can get the full-text versions of these opinions three ways detailed below. All methods require a TBA username and password. If you have forgotten your password or need to obtain a password, you can look it up on-line at http://www.tba.org/getpassword.mgi.

Here's how you can obtain full-text version. • Click the URL at end of each Opinion paragraph below. This option will allow you to download the original document. • 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.

Howard H. Vogel
Knoxville, Tennessee
Editor-in-Chief, TBALink


SUPREME COURT OF TENNESSEE
SUPREME COURT DISCRETIONARY APPEALS

Court:TSC - Rules

http://www.tba.org/tba_files/TSC_Rules/certlist_121304.wpd

STATE OF TENNESSEE, DEPARTMENT OF CHILDREN'S SERVICES v. C.M.

Court:TCA

Attorneys:                          

Edward L. Kershaw, Greeneville, Tennessee, for the Appellant, C.M.
                                                                                                                 _
Paul G. Summers, Attorney General and Reporter, and Juan G.
Villasenor, Assistant Attorney General, Nashville, Tennessee, for the
Appellee, State of Tennessee

Judge: LEE

First Paragraph:

This is an appeal of the trial court's order terminating the mother's
parental rights to her six children. The mother, who had appeared at
earlier hearings, did not appear at the termination hearing.  A motion
for default judgment was neither filed nor served on the mother. The
trial court granted a default judgment based upon the mother's failure
to appear at the termination hearing. We find that the mother's
failure to appear did not constitute grounds for a default judgment in
this case.  We find that the State did not comply with Rule 55 of the
Tennessee Rules of Civil Procedure. The judgment of the trial court is
vacated and the cause is remanded.

http://www.tba.org/tba_files/TCA/cm.wpd

LARRY ECHOLS EL v. FRED FIGUEROA, ET AL.

Court:TCA

Attorneys:                          

Larry Echols El, Pro se.

James I. Pentecost and Brandon O. Gibson, Jackson, Tennessee, for the
appellees, Fred Figueroa, Willie Clemmons and Danny Wilkes.

Judge: FARMER

First Paragraph:

The Plaintiff, an inmate, filed suit alleging that he was unlawfully
deprived his right to practice his religion and that certain of his
religious tapes were confiscated and he was denied the right to
congregate and worship in accordance with his faith.  Defendants filed
a motion for summary judgment supported by an affidavit and Plaintiff
responded with his own affidavit.  Having determined that there are
disputed issues of material fact, we reverse.

http://www.tba.org/tba_files/TCA/echolslarry.wpd

TIERANY REDMOND v. CLETIDUS MARQUELL HUNT
WITH DISSENTING OPINION

Court:TCA

Attorneys:                          

Robert F. Miller and Paul C. Peel, Memphis, Tennessee for the
Appellant, Cletidus Marquell Hunt.

Aubrey L. Brown, Jr., Memphis, Tennessee, for the Appellee, Tierany
Redmond.

Judge: FARMER

First Paragraph:

This is a child support action.  The trial court awarded Mother
retroactive child support, set base child support, and ordered Father
to make monthly payments into educational and future child support
trust funds.  The trial court also ordered father to pay private
elementary and high school tuition, provide health insurance, and
maintain life insurance.  The trial court awarded Mother's reasonable
attorney's fees.  We affirm as modified and remand.

http://www.tba.org/tba_files/TCA/redmontierany_opn.wpd

DISSENTING OPINION
http://www.tba.org/tba_files/TCA/redmontierany_dis.wpd

LISA TAYLOR, ET AL. v. TRANSMISSION CORPORATION OF AMERICA, INC.

Court:TCA

Attorneys:                          

Robin S. Kuykendall, Knoxville, Tennessee, for Appellants, Lisa Taylor
and Edward Taylor.

Brent R. Watson, Knoxville, Tennessee, for Appellee, Transmission
Corporation of America, Inc.

Judge: LEE

First Paragraph:

This case presents the issue of whether the trial court properly
dismissed the Plaintiffs' action where there was an identical lawsuit,
filed prior to this Circuit Court action, pending in General Sessions
Court.  We hold that the trial court correctly dismissed this case for
lack of subject matter jurisdiction under the doctrine of prior suit
pending.

http://www.tba.org/tba_files/TCA/taylorlisa.wpd

J. B. WILSON v. JAMES T. SMYTHE, ET AL.

Court:TCA

Attorneys:                          

James C. Wright, Knoxville, Tennessee, for the appellants, James T.
Smythe, individually, McCann Steel Company, Inc.

Pamela M. Spicer, Nashville, Tennessee, for the appellee, J. B.
Wilson.

Judge: CLEMENT

First Paragraph:

Employee and president of a closely held corporation seeks to enforce
a purported oral agreement requiring the defendant to purchase his
shares of stock in the corporation.  Plaintiff claims inter alia that
James T. Smythe orally agreed to purchase his shares for $300,000 in
partial consideration for the plaintiff's continued employment.  The
trial court found the oral agreement enforceable and ordered Smythe to
purchase the plaintiff's shares.  We reverse finding that the
purported oral agreement is unenforceable because it violated Tenn
Code Ann. S 47-8-319, the statute of frauds, which was in effect in
1997 when the parties purportedly entered into the oral agreement.

http://www.tba.org/tba_files/TCA/wilsonjb.wpd

JOANN WILSON v. GABLES-TENNESSEE PROPERTIES, LLC, GABLES RESIDENTIAL
SERVICES, INC., AND TURFMASTER, INC.

Court:TCA

Attorneys:                          

William M. Monroe, Memphis, for plaintiff Joann Wilson.

Joseph K. Willcox, Memphis, for appellees Gables-Tennessee Properties,
LLC and Gables Residential Services, Inc.

Reid R. Phillips and John C. Murrow, Memphis, for appellee Turfmaster,
Inc.

Judge: KIRBY

First Paragraph:

This case involves premises liability.  At her apartment complex, the
plaintiff tripped and fell on the  metal edging of a limestone gravel
walkway and sustained injuries to her elbow.  The plaintiff sued the
owner of the apartment complex, alleging premises liability, and also
sued the company that put in the metal landscape edging.  The
defendants filed a motion for summary judgment.  The motion was
granted.  We affirm, finding that the plaintiff did not establish that
defendants violated the duty of reasonable care.

http://www.tba.org/tba_files/TCA/wilsonjoann.wpd

IN RE:  AB BONDING COMPANY, INC. 

Court:TCCA

Attorneys:                          

Mark A. Baugh and Helen F. Bean (on appeal), and David Vincent (at
trial), Nashville, Tennessee, for the appellant, AB Bonding Company,
Inc.

Paul G. Summers, Attorney General and Reporter; Elizabeth T. Ryan,
Assistant Attorney General; Victor S. Johnson, III, District Attorney
General; and Dan Hamm, Assistant District Attorney General, for the
appellee, State of Tennessee.

Judge: OGLE

First Paragraph:

The appellant, AB Bonding Company, Inc., appeals the order of the
Davidson County Criminal Court denying its "Motion to Remit
Forfeitures" in the case of criminal defendant Elijah D. Truitt. 
Because the record fails to reflect the entry of final judgments of
forfeiture, the appeal is dismissed.

http://www.tba.org/tba_files/TCCA/abbondingco.wpd

JERRY ANDERSON v. TONY PARKER, WARDEN

Court:TCCA

Attorneys:                          

Jerry Anderson, pro se.

Paul G. Summers, Attorney General & Reporter; Rachel E. Willis,
Assistant Attorney General, for the appellee, the State of Tennessee.

Judge: WILLIAMS

First Paragraph:

The Petitioner, Jerry Anderson, appeals the trial court's denial of
his petition for habeas corpus relief.  The State has filed a motion
requesting that this Court affirm the trial court's denial of relief
pursuant to Rule 20, Rules of the Court of Criminal Appeals.  Because
Petitioner has failed to allege a ground for relief which would render
the judgment void, we grant the State's motion and affirm the judgment
of the lower court.

http://www.tba.org/tba_files/TCCA/anderjerry.wpd

RICHARD ANTHONY v. TONY PARKER, WARDEN

Court:TCCA

Attorneys:                          

Richard Anthony, pro se.

Paul G. Summers, Attorney General & Reporter; Michael Markham,
Assistant Attorney General, for the appellee, State of  Tennessee.

Judge: WILLIAMS

First Paragraph:

This matter is before the Court upon the State's motion to affirm the
judgment of the trial court by opinion pursuant to Rule 20, Rules of
the Court of Criminal Appeals.  The Petitioner is appealing the trial
court's denial of habeas corpus relief.  The Petitioner fails to
assert a ground of relief entitling him to habeas corpus relief. 
Accordingly, the State's motion is granted and the judgment of the
trial court is affirmed.

http://www.tba.org/tba_files/TCCA/anthonrichard.wpd

STATE OF TENNESSEE v. CEDRIC ANTHONY

Court:TCCA

Attorneys:                          

Robert Wilson Jones, District Public Defender; Garland Erguden,
Assistant Public Defender; Trent Hall, Assistant Public Defender; and
Cathy Hailey, Assistant Public Defender, for the appellant, Cedric
Anthony.

Paul G. Summers, Attorney General and Reporter; Kathy D. Aslinger,
Assistant Attorney General; William L. Gibbons, District Attorney
General; and Glen Baity, Assistant District Attorney General, for the
appellee, the State of Tennessee.

Judge: WOODALL

First Paragraph:

Defendant, Cedric Anthony, was indicted in count one for the
aggravated robbery of Teresa Stegall, in count two for the aggravated
robbery of Regina Davis, in count three for the aggravated robbery of
Antoinette Hubbard, and in count four for the aggravated robbery of
Leslie Ross.  Following a jury trial, Defendant was convicted of all
four counts of aggravated robbery and sentenced to eight years for
each offense.  The trial court ordered Defendant's sentences for
counts two, three, and four to be served concurrently, and his
sentence for count one to be served consecutively to the other counts
for an effective sentence of sixteen years.  Defendant does not appeal
the sufficiency of the convicting evidence but argues that his
aggravated robbery convictions in counts three and four violate the
principles of double jeopardy. Defendant does not argue on appeal that
his conviction in count two of the aggravated robbery of Ms. Davis
raises double jeopardy concerns. Defendant also argues that the trial
court erred in ordering his sentence for count one, aggravated
robbery, to be served consecutively to the other sentences.  Since the
filing of the briefs, Defendant has also asked us to consider the
impact of the ruling in Blakely v. Washington, 542 U.S. ___, 124 S.
Ct. 2531 (2004) on his sentences.  After a thorough review of the
record, we affirm Defendant's convictions for aggravated robbery in
counts one and two.  Because the facts and circumstances supporting
the offenses in counts one, three, and four support only one
conviction for aggravated robbery, we modify Defendant's convictions
for aggravated robbery in counts three and four to aggravated assault.
 We remand Defendant's convictions in counts three and four for
resentencing during which the trial court may only consider
Defendant's prior convictions as an enhancement factor under Blakely. 
We affirm Defendant's convictions for aggravated robbery in counts one
and two, and affirm the trial court's imposition of consecutive
sentencing.

http://www.tba.org/tba_files/TCCA/anthonycedric.wpd

STATE OF TENNESSEE v. DERECK C. CAMPBELL

Court:TCCA

Attorneys:                          

Cynthia M. Fort, Nashville, Tennessee, for the appellant, Dereck C.
Campbell.

Paul G. Summers, Attorney General & Reporter; Jennifer Bledsoe,
Assistant Attorney General; Ron Davis, District Attorney General; and
Derek K. Smith, Assistant District Attorney General,  for the
appellee, State of Tennessee.

Judge: SMITH

First Paragraph:

The Defendant was convicted for possession of cocaine with intent to
sell, possession of marijuana, possession of hydromorphone, possession
of diazepam, and possession of drug paraphernalia.  The possession of
cocaine conviction was a Class B felony and the other convictions were
Class A misdemeanors.  The jury also recommended fines related to
these convictions.  The total of the fines was just over $40,000.  The
trial court sentenced the defendant to eight (8) years for the
possession of cocaine offense, and eleven months, twenty-nine days for
each of the other offenses.  These sentences were run concurrently. 
The trial court then granted the Defendant's request for alternative
sentencing and suspended the Defendant's sentence for possession of
cocaine for all but thirty (30) days and allowed him to serve ten
years on intensive probation.  The defendant appeals his sentence.  We
affirm the sentence imposed by the trial court.

http://www.tba.org/tba_files/TCCA/campbelldereck.wpd

DENNIS EUGENE EVANS v. STATE OF TENNESSEE

Court:TCCA

Attorneys:                          

Dennis Eugene Evans, Whiteville, Tennessee, Pro Se.

Paul G. Summers, Attorney General and Reporter; Brent C. Cherry,
Assistant Attorney General; and Randall E. Nichols, District Attorney
General, for the appellee, State of Tennessee

Judge: WELLES

First Paragraph:

The Defendant, Dennis Eugene Evans, pled guilty to robbery and
aggravated kidnapping.  The Defendant was sentenced as a Range I
standard offender to concurrent terms of three and eight years,
respectively.  The original judgments indicated that the Defendant
would be eligible for parole after having served thirty percent of his
sentence.  The trial court subsequently corrected the judgment for the
Defendant's aggravated kidnapping conviction to reflect that the
sentence was to be served at one hundred percent.  The Defendant
subsequently filed a petition for post-conviction relief to set aside
the corrected judgment.  The trial court summarily denied relief, and
this appeal followed.  We affirm the judgment of the trial court.

http://www.tba.org/tba_files/TCCA/evansdennise.wpd

KEITH HATFIELD v. DAVID G. MILLS, WARDEN

Court:TCCA

Attorneys:                          

Keith Hatfield, pro se.

Paul G. Summers, Attorney General & Reporter; Rachel E. Willis,
Assistant Attorney General, for the appellee, the State of Tennessee.

Judge: MCLIN

First Paragraph:

The Petitioner, Keith Hatfield, appeals the trial court's denial of
his petition for habeas corpus relief.  The State has filed a motion
requesting that this Court affirm the trial court's denial of relief
pursuant to Rule 20, Rules of the Court of Criminal Appeals.  Because
Petitioner has failed to allege a ground for relief which would render
the judgment void, we grant the State's motion and affirm the judgment
of the lower court.

http://www.tba.org/tba_files/TCCA/hatfieldkeith.wpd

ROBERT A. HAYDEN v. STATE OF TENNESSEE

Court:TCCA

Attorneys:                          

Kenneth J. Sanney, Franklin, Tennessee, for the appellant, Robert A.
Hayden.

Paul G. Summers, Attorney General and Reporter; Renee W. Turner,
Assistant Attorney General; Ron Davis, District Attorney General; and
Mary Katherine White, Assistant District Attorney General, for the
appellee, State of Tennessee.

Judge: WELLES

First Paragraph:

The Defendant, Robert Hayden, pled guilty to aggravated robbery,
especially aggravated kidnapping, and two counts of aggravated rape. 
His plea did not include an agreement as to his sentences, and he was
subsequently sentenced by the court to twelve years for the robbery,
twenty- five years for the kidnapping, and twenty-five years for each
of the rapes.  The sentences were imposed in such a manner as to
result in an effective sentence of sixty-two years.  The Defendant
subsequently filed a direct appeal, claiming that his sentences were
excessive.   This Court affirmed the trial court's judgments.  See
State v. Robert A. Hayden, No. M2000-00901-CCA-MR3-CD, 2001 WL 567869
(Tenn. Crim. App., Nashville, May 25, 2001).  The Defendant then filed
for post- conviction relief, alleging that he received ineffective
assistance of counsel in conjunction with his guilty plea and
sentencing hearing.  He further alleged that his plea was unknowing
and involuntary because he was under the influence of medication at
the time.  After an evidentiary hearing, the trial court denied
relief.  This appeal followed.  We affirm the judgment of the trial
court.

http://www.tba.org/tba_files/TCCA/haydenroberta.wpd

STATE OF TENNESSEE v. BERNARD J. HENRY

Court:TCCA

Attorneys:                          

Robert Wilson Jones, District Public Defender; Tony N. Brayton,
Assistant Public Defender (on appeal); Bill Robilio and Robert C.
Felkner, Assistant Public Defenders (at trial), for the appellant,
Bernard J. Henry.

Paul G. Summers, Attorney General and Reporter; Michelle Chapman
McIntire, Assistant Attorney General; William L. Gibbons, District
Attorney General; and Scot A. Bearup, Assistant District Attorney
General, for the appellee, State of Tennessee.

Judge: TIPTON

First Paragraph:

A Shelby County Criminal Court jury convicted the defendant, Bernard
J. Henry, of two counts of aggravated child abuse and neglect, a Class
A felony, and the trial court sentenced him as a Range I, violent
offender to concurrent sentences of twenty-five years.  The defendant
appeals, claiming that the evidence is insufficient to support the
convictions and that the trial court misapplied enhancement factors. 
We conclude that the evidence is sufficient but that the trial court
improperly enhanced the defendant's sentences.  We reduce the
defendant's sentences to twenty years for each conviction and remand
the case for the entry of appropriate judgments of conviction.

http://www.tba.org/tba_files/TCCA/henrybernardj.wpd

STATE OF TENNESSEE v. LINDA HERRON

Court:TCCA

Attorneys:                          

David Brady (on appeal), Joe L. Finley, Jr., (at trial and on appeal),
and John B. Nisbett, III, (at trial and on appeal), Cookeville,
Tennessee, for the appellant, Linda Herron.

Paul G. Summers, Attorney General and Reporter; Jennifer L. Bledsoe,
Assistant Attorney General; William E. Gibson, District Attorney
General; and William M. Locke and John Moore, Assistant District
Attorneys General, for the appellee, State of Tennessee.

Judge: OGLE

First Paragraph:

The appellant, Linda Herron, was convicted by a jury in the White
County Criminal Court of second degree murder.  The trial court
sentenced the appellant to eighteen years incarceration in the
Tennessee Department of Correction.  On appeal, the appellant
challenges the sufficiency of the evidence supporting her conviction
and the trial court's jury instructions.  Upon review of the record
and the parties' briefs, we affirm the judgment of the trial court.

http://www.tba.org/tba_files/TCCA/herronlinda.wpd

BRIAN K. MITCHELL v. TONY PARKER, WARDEN

Court:TCCA

Attorneys:                          

Brian K. Mitchell, Mountain City, Tennessee, Pro Se.

Paul G. Summers, Attorney General and Reporter; Rachel E. Willis,
Assistant Attorney General; and C. Phillip Bivens, District Attorney
General.

Judge: TIPTON

First Paragraph:

The petitioner, Brian K. Mitchell, appeals pro se from the Lake County
Circuit Court's dismissal of his petition for habeas corpus relief. 
The petitioner attacks his conviction for especially aggravated
burglary, a Class B felony, for which he received a thirty-year
sentence.  He contends that his sentence is illegal because, although
he is a Range I, standard offender, the sentence he received is the
maximum within Range III.  We affirm the trial court's dismissal of
the petition.

http://www.tba.org/tba_files/TCCA/mitchellbriank.wpd

STATE OF TENNESSEE v. JAMES MICHAEL MOFFITT

Court:TCCA

Attorneys:                          

Jack T. Marecic, Rogersville, Tennessee, for the Appellant, James
Michael Moffitt.

Paul G. Summers, Attorney General & Reporter; John H. Bledsoe,
Assistant Attorney General; C. Berkeley Bell, District Attorney
General; and Paige Collins, Assistant District Attorney General, for
the Appellee, State of Tennessee.

Judge: WITT

First Paragraph:

The defendant, James Michael Moffitt, appeals from the Hamblen County
Criminal Court's imposition of a conviction of rape and a sentence of
ten years in the Department of Correction.  On appeal, he challenges
the sufficiency of the convicting evidence and the propriety of a
ten-year sentence.  Because the conviction is unsupported by
sufficient evidence establishing the corpus delicti, we reverse the
conviction and dismiss the indictment.

http://www.tba.org/tba_files/TCCA/moffittjamesmichael.wpd

MORRIS PEPPER v. STATE OF TENNESSEE

Court:TCCA

Attorneys:                          

John H. Richardson, Jr., Fayetteville, Tennessee, for the appellant,
Morris Pepper.

Paul G. Summers, Attorney General and Reporter; Jennifer L. Bledsoe,
Assistant Attorney General; William Michael McCown, District Attorney
General; and Weakley E. Barnard, Assistant District Attorney General,
for the appellee, State of Tennessee.

Judge: TIPTON

First Paragraph:

The petitioner, Morris Pepper, appeals as of right from the Lincoln
County Circuit Court's denial of his petition for post-conviction
relief from his conviction for first degree premeditated murder and
sentence of life imprisonment.  The petitioner contends that he
received the ineffective assistance of counsel at trial.  We affirm
the judgment of the trial court.

http://www.tba.org/tba_files/TCCA/peppermorris.wpd

JOHN HENRY SPARROW, III v. STATE OF TENNESSEE

Court:TCCA

Attorneys:                          

T. Lance Carter, Fayetteville, Tennessee, for the appellant, John
Henry Sparrow, III.

Paul G. Summers, Attorney General and Reporter; Richard H. Dunavant,
Assistant Attorney General; Dan Alsobrooks, District Attorney General;
and Carey J. Thompson, Assistant District Attorney General, for the
appellee, State of Tennessee.

Judge: WELLES

First Paragraph:

This is an appeal as of right from a denial of post-conviction relief.
 The Defendant, John Henry Sparrow, III, was convicted by jury verdict
of attempted especially aggravated kidnaping and received a twelve
year sentence.  This Court upheld the Defendant's conviction on direct
appeal.  See State v. John Henry Sparrow, III, No.
M2000-03238-CCA-R3-CD, 2002 WL 560958 (Tenn. Crim. App., Nashville,
April 16, 2002) (not for citation).   The Defendant subsequently filed
a petition for post-conviction relief, which was denied.  The
Defendant now appeals to this Court, raising the single issue of
ineffective assistance of counsel.  We affirm the judgment of the
post- conviction court.

http://www.tba.org/tba_files/TCCA/sparrowjhiii.wpd

STATE OF TENNESSEE v. CHESTER WAYNE WALTERS
CORRECTED OPINION

Court:TCCA

Attorneys:                          

David Neal Brady, District Public Defender, Joe L. Finley, Jr., and
John Byers Nisbett, III, Assistant Public Defenders, for the
appellant, Chester Wayne Walters.

Paul G. Summers, Attorney General and Reporter; Jennifer L. Bledsoe,
Assistant Attorney General; William Edward Gibson, District Attorney
General; and William M. Locke, Assistant District Attorney General,
for the appellee, State of Tennessee.

Judge: TIPTON

First Paragraph:

A White County Criminal Court jury convicted the defendant, Chester
Wayne Walters, of two counts of rape of a child, a Class A felony, and
two counts of aggravated sexual battery, a Class B felony, and the
trial court sentenced him to concurrent sentences of twenty-five years
for each rape conviction and twelve years for each aggravated sexual
battery conviction.  The defendant appeals, claiming that (1) the
evidence is insufficient to support the convictions; (2) the trial
court should have merged the aggravated sexual battery convictions
into the child rape convictions; (3) the trial court improperly
allowed an expert to give hearsay testimony; (4) the trial court erred
by failing to charge any lesser included offenses; (5) the trial court
gave erroneous jury instructions on the mens rea elements of the
crimes; and (6) his sentences are excessive.  We affirm the
defendant's child rape convictions but hold that his convictions for
aggravated sexual battery violate double jeopardy and must be merged
into the child rape convictions.  We also hold that the trial court
improperly enhanced the defendant's sentences in light of Blakely v.
Washington, 542 U.S. ___, 124 S. Ct. 2531 (2004), and we reduce the
defendant's sentences to twenty-three years for each child rape
conviction.  We remand the case for the entry of appropriate judgments
of conviction.

CORRECTED OPINION
http://www.tba.org/tba_files/TCCA/walterschesterwayne.wpd

STATE OF TENNESSEE v. TERRY WEBB

Court:TCCA

Attorneys:                          

Loys A. "Trey" Jordan, III, Memphis, Tennessee, for the appellant,
Terry Webb.

Paul G. Summers, Attorney General and Reporter; Rachel E. Willis,
Assistant Attorney General; William L. Gibbons, District Attorney
General; and Amy P. Weirich, Assistant District Attorney General, for
the appellee, State of Tennessee.

Judge: TIPTON

First Paragraph:

A Shelby County Criminal Court jury convicted the defendant, Terry
Webb, of robbery, a Class C felony, and theft of property five hundred
dollars or less, a Class A misdemeanor.  Following a sentencing
hearing, the trial court merged the defendant's theft conviction into
his robbery conviction and sentenced him as a Range III, persistent
offender, to fourteen years.  In this appeal, the defendant claims (1)
that the evidence is insufficient to support his conviction for
robbery; (2) that the trial court erred when it denied him an
opportunity to impeach a witness at trial; (3) that the trial court
erred when it denied his request to alter the proposed jury
instructions; (4) that the trial court erred when it allowed the
victim's in-court identification of the defendant; and (5) that his
sentence is excessive.  We affirm the judgment of the trial court.

http://www.tba.org/tba_files/TCCA/webbterry.wpd

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