James W. Stephenson v. The Third Company, et al.
M2002-02082-COA-R3-CV
Authoring Judge: Judge Patricia J. Cottrell
Trial Court Judge: Judge Ross H. Hicks

The plaintiff filed suit for repayment of $25,000 which he purportedly loaned to the defendant. The defendant contended that the money was not a loan, but was placed with him for a specific investment. Since the investment ultimately failed, the defendant claimed that he did not owe anything to the plaintiff. The trial court noted that the documents evidencing the transactions at issue were “replete with ambiguities,” but found that they were nonetheless sufficient to establish an enforceable loan contract. The court accordingly rendered a plaintiff’s judgment for $25,000 plus interest. We reverse.

James Stephenson v. The Third Company - Dissenting
M2002-02082-COA-R3-CV
Authoring Judge: Presiding Judge William C. Koch, Jr.
Trial Court Judge: Judge Ross H. Hicks

I agree on both counts. The “loan agreements” are poorly drafted, and they do not reflect
sound business judgment on Mr. Caldwell’s part. So what? When competent parties have bargained in good faith and have entered into a written contract, it is not the courts’ prerogative to rewrite the contract or to relieve either party from the burdensome effects of their agreement. Vargo v. Lincoln Brass Works, Inc., 115 S.W.3d 487, 492 (Tenn. Ct. App. 2003). Whether considered by themselves or in conjunction with the parties’ separate “consulting agreements,” the fact of the matter is that Mr. Caldwell’s “loan agreements” are precisely that – loan agreements. I would affirm the trial court.

State of Tennessee v. Thomas Marion Hardin
M2003-01126-CCA-R3-CD
Authoring Judge: Judge Thomas T. Woodall
Trial Court Judge: Judge W. Charles Lee

Defendant, Thomas Marion Hardin, entered "open" pleas of guilty to two counts of sale of cocaine in an amount of 0.5 grams or more, and one count of conspiracy to sell cocaine in an amount of 0.5 grams or more. Following a sentencing hearing, the trial court sentenced Defendant to serve ten years as a Range I standard offender for each Class B felony conviction for sale of cocaine, and to four years to serve as a Range I standard offender to the Class C felony conviction for conspiracy. The sentences for the sale of cocaine convictions were ordered to be served concurrently with each other, and the conspiracy charge was ordered to be served consecutively to the convictions for sale of cocaine. Therefore, the effective sentence was fourteen years of confinement. In his sole issue on appeal, Defendant argues that the trial court erred by not ordering his sentence to be served in the Community Corrections Program, rather than by incarceration. After a review of the briefs of the parties and the entire record, we affirm the judgments of the trial court.

State of Tennessee v. Donald W. Brymer, Jr.
M2003-01712-CCA-R3-CD
Authoring Judge: Judge Robert W. Wedemeyer
Trial Court Judge: Judge Timothy L. Easter

The Defendant, Donald W. Brymer, Jr., appeals from the Williamson County Circuit Court's revocation of his probation that he received for his guilty plea to one count of statutory rape. The Defendant contends that the trial court abused its discretion by revoking his probation and sentencing him to confinement. We affirm the trial court's judgment.

State of Tennessee v. David G. Housler
M2002-00419-CCA-R3-CD
Authoring Judge: Judge David G. Hayes
Trial Court Judge: Judge John H. Gasaway, III

A Montgomery County jury convicted the Appellant, David G. Housler, of four counts of felony murder. Housler's convictions stem from the robbery of a Clarksville Taco Bell and the execution-style murders of four of its employees. Following a sentencing hearing, the trial court imposed four consecutive life sentences. Housler appeals, presenting the following issues for our review: (1) Whether his confessions were properly admitted into evidence when the State and the trial court knew the confessions were false and unreliable; (2) Whether the State committed prosecutorial misconduct by using the recanted testimony of Robert Eastland, Robert Dawson, and Michael Miller and by failing to inform defense counsel or the trial court that Jeremy Thompson had recanted his statement; (3) Whether he is entitled to a new trial based upon the newly recanted testimony of Larry Underhill; (4) Whether the trial court erred in denying a new trial when a juror fell asleep during the trial; (5) Whether the Mathews time-line proves his innocence; (6) Whether the State prosecuted Housler and Courtney Mathews under inconsistent theories; and (7) Whether consecutive sentencing was proper. After review, we find no error of law requiring reversal. Accordingly, we affirm Housler's convictions and the imposition of four consecutive life sentences.

Myrtle Marie Stagner v. Lloyd Otis Stagner
E2003-00610-COA-R3-CV
Authoring Judge: Judge David Michael Swiney
Trial Court Judge: Chancellor Telford E. Forgerty, Jr.

After nineteen years of marriage, Myrtle Marie Stagner (“Wife”) sued Lloyd Otis Stagner (“Husband”) for divorce. After trial, the Trial Court ordered, inter alia, the marital home sold and awarded Wife sixty percent of the proceeds with ten percent being alimony in solido in lieu of any other alimony. The Trial Court also characterized as Husband’s separate property the appreciation of Husband’s separate pre-marital property. Wife appeals as to both the alimony and the property division. We affirm, in part, and vacate, in part, and remand.

Myrtle Marie Stagner v. Lloyd Otis Stagner - Concurring
E2003-00610-COA-R3-CV
Authoring Judge: Judge Charles D. Susano
Trial Court Judge: Chancellor Telford E. Forgerty, Jr.

I concur in the majority opinion. I write separately to further address the majority’s treatment of the Illinois farm. I agree with the majority that the use of the parties’ joint accounts – to which both parties contributed – to pay “real estate taxes, insurance premiums, repairs and maintenance on the farm” during the parties’ 19-year marriage is clear evidence that “each party substantially contributed to [the Illinois farm’s] preservation and appreciation.” See Tenn. Code Ann. § 36-4- 121(b)(1)(B). This means that the entire “increase in value [of the Illinois farm] during the marriage,” see id., is marital property. Obviously this does not end the inquiry, because the trial court on remand must decide how to make an equitable division of the marital property portion of the present value of the farm in the context of an overall division of the total marital property estate. See Tenn. Code Ann. § 36-4-121(c)(1)-(11).

Melody Lynn Michael v. John William Michael, Jr.
E2003-01214-COA-R3-CV
Authoring Judge: Judge Charles D. Susano, Jr.
Trial Court Judge: Judge W. Dale Young

On September 6, 2002, Melody Lynn Michael ("Wife") filed suit against her husband, John William Michael, Jr. ("Husband"), seeking a divorce, custody of the couple's minor child, and ancillary relief. The complaint reflects that Husband is an active-duty member of the United States Air Force. Service of process on Husband was attempted through the Secretary of State "by certified or registered mail" directed to Husband at his acknowledged address in Waldorf, Maryland. The Secretary of State notified the clerk of the trial court that his correspondence to Husband was returned by the United States Postal Service with the notation that it was "refused." When there was no response filed by Husband to Wife's complaint, Wife, on November 25, 2002, filed a motion for default judgment. The motion was heard and granted on January 6, 2003, and subsequently memorialized in a default judgment and judgment of divorce entered January 24, 2003. A motion to set aside the default judgment and judgment of divorce was filed by Husband on February 14, 2003. Following a hearing on April 7, 2003, the trial court entered an order on May 6, 2003, denying the motion. Husband appeals. We affirm.

Tanikia Yolanda Boone v. Houston Gibson, Jr.
E2003-00226-COA-R3-CV
Authoring Judge: Judge Charles D. Susano, Jr.
Trial Court Judge: Judge Jacqueline E. Schulten

Tanikia Yolanda Boone (“the tenant”) sued Houston Gibson, Jr. (“the landlord”), seeking damages and other relief for wrongful eviction and for the wrongful withholding of her personal possessions, pursuant to the Uniform Residential Landlord and Tenant Act (“the URLTA”), Tenn. Code Ann. § 66-28-101, et seq. (1993 & Supp. 2003). The tenant attempted service on the landlord by having the landlord’s process served on Donna Gibson, the landlord’s former wife. After the landlord failed to respond to the complaint, the tenant filed a motion for default judgment. The trial court granted the motion and awarded the tenant damages of $20,000 and attorney’s fees and costs totaling $3,500. Approximately two years later, in response to the tenant’s efforts to execute on her judgment, the landlord filed a motion to dismiss the default judgment on the ground that the trial court lacked personal jurisdiction over him. Following a hearing on the landlord’s motion, the trial court held that the landlord’s former wife had authority as his agent to accept service of process on his behalf. We affirm.
 

State of Tennessee v. Andrew Thomas and Anthony Bond
W2001-02701-CCA-R3-DD
Authoring Judge: Judge David H. Welles
Trial Court Judge: Judge Joseph B. Dailey

Defendants Andrew Thomas and Anthony Bond appeal as of right their convictions for the first degree felony murder of Loomis Fargo employee, James Day, during the perpetration of a robbery. Following a separate sentencing hearing, the jury found, as to each defendant, that the proof supported one aggravating circumstance beyond a reasonable doubt, that is, the defendant had been previously convicted of one or more violent felonies. See Tenn. Code Ann. § 39-13-204(i)(2). With respect to Defendant Thomas, the jury further determined that the aggravating circumstance outweighed any mitigating circumstances beyond a reasonable doubt, and sentenced Defendant Thomas to death. As to Defendant Bond, the jury found that the aggravating circumstance did not outweigh the mitigating circumstances and imposed a sentence of life without the possibility of parole. The trial court approved the sentencing verdicts. In this appeal as of right, Defendant Thomas raises the following issues for this Court’s review: (1) the sufficiency of the evidence; (2) whether the trial court erred by denying various pre-trial motions; (3) whether the trial court erred by failing to continue the case after the events of September 11, 2001; (4) whether the trial court erred by excusing prospective juror Pannell for cause; (5) whether the trial court erred by admitting photographs of the victim; (6) whether the trial court erred by admitting items from Defendant’s prior federal trial arising out of the robbery; (7) whether the trial court erred in restricting the Defendant’s impeachment of Angela Jackson; (8) whether the trial court erred in failing to voir dire a prospective witness regarding her relationship with defense witness Russell Carpenter; (9) whether the trial court erred in sustaining an objection to the testimony of John Hibbler; (10) whether the trial court erred in permitting testimony regarding fingerprints despite stipulation; (11) whether the trial court erred in the admission of expert testimony; (12) whether the trial court erred by failing to charge lesser-included offenses of felony murder; (13) whether the trial court erred by failing to charge the jury with an accomplice instruction; (14) whether it was plain error for the State to refer to Thomas and Bond as “Greed and Evil” in opening statement and closing argument; (15) whether the trial court erred in permitting the State to argue that the jury had a job to find the Defendants guilty; (16) whether the trial court erred by not instructing on specific mitigating factors; (17) whether the trial court erred by permitting the State to cross-examine the Defendant’s mother regarding disciplinary actions taken against the Defendant while in prison; (18) whether the verdict 2 of the jury was against the weight of the evidence; (19) whether the indictment failed to charge a capital offense; (20) whether the death penalty violates international treaties ratified by the United States; (21) whether the Tennessee death penalty scheme is unconstitutional; and (22) whether the sentence is proportionate. Defendant Bond raises the following issues: (1) whether it was error for the trial judge to fail to recuse himself for failure to follow Local Rule 4.01; (2) whether the trial court erred by overruling Bond’s objection to the testimony of Dr. Smith; (3) whether the trial court erred by declaring Dr. Smith an expert in firearms identification; (4) whether the trial court erred by permitting the prosecution to engage in improper argument; (5) whether the trial court erred by permitting the prosecution to elicit testimony from Angela Jackson regarding her attendance at trial; and (6) whether the trial court erred by failing to instruct the jury as to lesser-included offenses of felony murder. After review of the record and the applicable law, we find no errors of law requiring reversal as to Defendant Thomas. Accordingly, we affirm the jury’s verdict finding Defendant Thomas guilty of first degree murder. Additionally, we affirm the jury’s imposition of the sentence of death as to Defendant Thomas. However, with respect to Defendant Bond, we are unable to conclude that the failure of the trial court to instruct the jury as to the lesser-included offenses of felony murder was harmless beyond a reasonable doubt. Accordingly, we vacate Defendant Bond’s conviction for felony murder and accompanying sentence of life without the possibility of parole. With respect to Defendant Bond, this matter is remanded to the trial court for a new trial.

Thomas Poston Studdard v. State of Tennessee
W2003-01210-CCA-R3-PC
Authoring Judge: Judge Alan E. Glenn
Trial Court Judge: Judge Lee Moore

The petitioner was indicted on three counts of rape of a child, a Class A felony, and pled guilty to one count of incest, a Class C felony, in exchange for an eight-year sentence as a Range II, multiple offender. Following his conviction, he filed a timely motion for reduction of sentence pursuant to Rule 35 of the Tennessee Rules of Criminal Procedure. After conducting a hearing, the trial court denied the motion, and the petitioner appealed to this court. We agree that the petitioner should be allowed to withdraw his plea of guilty, although for a different reason than he argues. Incest, to which he pled guilty, is not a lesser-included offense of rape of a child, and the record on appeal does not reflect that the indictment was amended to charge incest. Accordingly, we vacate the judgment of conviction and remand this matter to the trial court.

Roger Lynn Perry, pro se., v. Tony Parker, Warden
W2003-02342-CCA-R3-HC
Authoring Judge: Judge John Everett Williams
Trial Court Judge: Judge R. Lee Moore Jr.

The Petitioner, Roger Lynn Perry, 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.

State of Tennessee v. Andrew Thomas and Anthony Bond - Concurring/Dissenting
W2001-02701-CCA-R3-DD
Authoring Judge: Judge Joe G. Riley
Trial Court Judge: Judge Joseph B. Dailey

I agree with the majority opinion in all respects with one exception. The majority opinion concludes the failure of the trial court to charge the lesser-included offense of facilitation of felony murder as to Defendant Bond was not harmless error. I respectfully disagree with this conclusion.

Wincor, Inc. v. John Dunlap
W2002-02522-COA-R3-CV
Authoring Judge: Presiding Judge Alan E. Highers
Trial Court Judge: Judge D'Army Bailey

This case involves Plaintiff’s claim that Defendant committed legal malpractice while representing
Plaintiff in certain bankruptcy proceedings. The Defendant filed a motion for summary judgment,
alleging that the applicable statute of limitations bars the malpractice action, as does the doctrine of res judicata. The trial court granted Defendant’s motion, and Plaintiff filed the instant appeal. For
the following reasons, we affirm the ruling of the lower court.

James H. Crawford v. State of Tennessee
E2003-00097-CCA-R3-PC
Authoring Judge: Judge Jerry L. Smith
Trial Court Judge: Judge R. Jerry Beck

On March 23, 1998, The petitioner pled guilty to six (6) counts of attempt to commit incest and six (6) counts of attempt to commit rape. He was sentenced to six (6) years for each count, all to be served concurrently to each other. On March 20, 2002, he filed a Petition for Post-Conviction Relief. He based his petition on two grounds of relief, attorney misrepresentation and DNA analysis under Tennessee Code Annotated section 40-30-403. The trial court dismissed the petition as time-barred on the attorney misrepresentation issue and as not meeting the statutory requirements on the DNA issue. The petitioner appeals the trial court's decision. We affirm the trial court.

Floyd Bouldin v. Warren County Sheriff's Department
M2003-00602-WC-R3-CV
Authoring Judge: John A. Turnbull, Sp. J.
Trial Court Judge: The Hon. John Rollins, Judge
This workers' compensation appeal has been referred to the Special Workers' Compensation Appeals Panel of the Supreme Court in accordance with Tenn. Code Ann. 5-6-225 (e)(3). Defendant challenges the admission of expert medical opinion as based on erroneous records and insists the amount of the award is excessive because it exceeds the two and one-half times cap. We affirm the judgment of the trial court. Tenn. Code Ann. 5-6-225(e) (1999); Appeal as of Right: Judgment of the Chancery Court is affirmed JOHN A. TURNBULL, Sp. J. in which FRANK DROWOTA C.J., and HOWELL PEOPLES, SP. J., joined. Larry B. Stanley, McMinnville, Tennessee, for Appellants, Warren County Sheriff's Department and Warren County, Tennessee. Barry Medley, McMinnville, Tennessee, for Appellee, Floyd Bouldin. OPINION I. Facts and Procedural Background The seventy-one year old plaintiff, Floyd Bouldin, worked for the Warren County Sheriff's Department as a transportation officer and court bailiff. On April 1, 21, Bouldin was transporting a prisoner when the prisoner became unruly, scuffled with Bouldin and wrenched his left arm and shoulder. Bouldin, upon his report of injury, was referred by his employer to Dr. Donald M. Arms, a local orthopedic surgeon, who had previously seen Bouldin for other ailments. Dr. Arms diagnosed a torn rotator cuff and initially treated him conservatively. When the injury did not respond, surgery was performed on July 16, 21. Even though the MRI had demonstrated a probable partial rotator cuff tear, during surgery Dr. Arms found no rotator cuff tear. Instead, he found severe degenerative arthritis in the shoulder joint. Dr. Arms performed an open distal clavicle excision (removing the arthritic end of the collar bone) and cleaned out the arthritis and bursitis in the shoulder joint. Since Bouldin had not suffered shoulder symptoms before the trauma of April 1, 21, Dr. Arms testified: "I'm at least 51 percent sure that the trauma ... led to his symptoms," ... "the pain and symptoms that he had and the need for surgery is the result of his work injury." Mr. Bouldin returned to work at a lighter duty job and worked for approximately eight months guarding prisoners in the exercise yard and on clean up duties, and transporting prisoners to court sessions in which he acted as bailiff. Mr. Bouldin resigned his employment on July 31, 22, two years before his county retirement would have vested. Mr. Bouldin stated, and his wife confirmed, that he quit because his shoulder and arm were so weak he could not safely perform his duties; he feared his condition could place himself and others in danger. Dr. Arms assigned a seven percent permanent partial impairment to the body when he last saw Bouldin in December 21. Not satisfied with that rating, Bouldin's attorney referred him to Dr. Robert Landsberg for an independent medical exam which was performed on August 21, 22. Dr. Landsberg reviewed Dr. Arms records in which Dr. Arms had indicated a partial rotator cuff tear, and assumed that Dr. Arms had, in fact, found the rotator cuff tear during his surgery. Dr. Landsberg did not, and could not have known, that Dr. Arms would later testify that he found no rotator cuff tear during surgery. Dr. Landsberg found decreased strength and loss of motion and was of the opinion that the AMA Guides to the Evaluation of Permanent Impairment 5th edition required impairments of six percent to the extremity for decreased range of motion and three percent to the extremity for loss of strength in addition to the ten percent extremity impairment for the distal clavicle resection. Dr. Landsberg combined these extremity impairments, and related them to the body as a whole for an eleven percent permanent partial impairment rating. In addition, Dr. Landsberg assigned significant left arm restrictions: no lifting over five pounds above the shoulder, avoid repetitive reaching to -1-

Michael Wayne Phillips v. Liberty Mutual Insurance
M2003-00855-WC-R3-CV
Authoring Judge: John A. Turnbull, Sp. J.
Trial Court Judge: The Hon. John D. Wootten, Jr., Judge
This workers' compensation appeal has been referred to the Special Workers' Compensation Appeals Panel of the Supreme Court in accordance with Tenn. Code Ann. 5-6-225 (e)(3) for hearing and reporting to the Supreme Court of Findings of Fact and Conclusions of Law. The trial court found plaintiff suffered a compensable injury to his back, sustained a forty-eight percent permanent partial disability to the body as a whole, suffered a compensable carpal tunnel injury to his right arm, and sustained a twenty-five percent permanent partial disability to the right arm. The employer challenges the compensability of the arm injury and the amount of each award. We affirm the judgment of the trial court. Tenn. Code Ann. 5-6-225(e) (1999); Appeal as of Right: Judgment of the Circuit Court is affirmed JOHN A. TURNBULL, Sp. J. in which FRANK DROWOTA C.J., and HOWELL PEOPLES, SP. J., joined. David T. Hooper, Brentwood, Tennessee, for Liberty Mutual Insurance Company and United Parcel Service, Inc., Appellants. William Joseph Butler and E. Guy Holliman, McMinnville, Tennessee, for Michael Wayne Phillips, Appellee. OPINION I. Facts and Procedural Background Michael Wayne Phillips, age 43, had been working for United Parcel Service (U.P.S.) for thirteen years when he injured his back and right arm on December 3, 21. As a part of his job driving tractor trailers, Phillips was required to manipulate a heavy dolly into position between two trailers to connect them. While moving the dolly, Phillips felt a stabbing pain in his back and subsequently felt symptoms in his right arm, hand, leg and foot. Phillips had suffered a previous injury to his back while working for U.P.S. in 1994, but had recovered without disability. Mr. Phillips gave immediate notice of his injury and was referred to a local physician. He was then referred to Dr. Michael Moore, a specialist in physiatry and electro diagnostic medicine, in Lebanon, who first saw Phillips on December 11, 21. Since Mr. Phillips was complaining of numbness and tingling in his right hand and arm, Dr. Moore performed electro diagnostic studies which showed entrapment of the right median nerve at the wrist corresponding with carpal tunnel syndrome. Dr. Moore continued to treat plaintiff, who was unable to return to work, until Dr. Moore placed him at maximum medical improvement on April 23, 23. Dr. Moore assigned a five percent permanent partial impairment to the body for the low back injury, and placed restrictions of occasional lifting up to fifty pounds, frequent lifting up to twenty to twenty-five pounds from knee to waist level, and no repetitive lifting from the floor. U.P.S. could not return Phillips to work as his job description required significant heavy lifting. With reference to the carpal tunnel injury, Dr. Moore testified that it was "quite possible" that Mr. Phillips' arm condition was a result of his repetitive duties at U.P.S. Dr. Moore specifically declined to express an opinion as to the extent of any permanent impairment to the arm: "I would not be in a position to make that assessment at this point in time given that I haven't seen the patient in some ten months, and I'm not aware as to whether there's been any progression of his symptoms." Mr. Phillips was also seen by Dr. Walter Wheelhouse on two occasions in October, 22, for an independent medical exam. Dr. Wheelhouse agreed with Dr. Moore that Mr. Phillips had mechanical low back pain with bulging discs, but fixed his back impairment at eight percent, rather than the five percent given by Dr. Moore, because of chronic low back pain. In addition, Dr. Wheelhouse found the carpal tunnel injury to be caused by work, and related an impairment of five percent to the right arm. Dr. Wheelhouse assigned work restrictions to Mr. Phillips of no bending, stooping, or lifting over twenty pounds occasionally, and no repetitive motion of his back, or long distance truck for the low back injury. For the carpal tunnel, Dr. Wheelhouse assigned work restrictions of no repetitive motions of his right arm, and no trauma to the right hand. Dr. Wheelhouse further prescribed that plaintiff should wear a splint on the right hand/wrist. -1-

State of Tennessee v. Michael David Totty
M2002-02601-CCA-R3-CD
Authoring Judge: Judge Thomas T. Woodall
Trial Court Judge: Judge Robert E. Burch

Defendant, Michael David Totty, was indicted on one count of burglary of a building other than a habitation, a Class D felony, and one count of theft of property over $1,000 but less than $10,000, a Class D felony. The jury found Defendant guilty of the lesser-included offense of facilitation of a burglary other than a habitation on count one and guilty on count two, theft of property. The trial court sentenced Defendant as a Range III persistent offender to ten years on the theft conviction and six years on Defendant’s conviction of facilitation of a burglary. The trial court ordered Defendant’s sentences to run concurrently for an effective sentence of ten years. Defendant does not appeal his sentence. On appeal, Defendant argues that the trial court’s denial of his motion for a continuance prevented Defendant from securing a material witness for trial and denied his counsel an adequate opportunity to evaluate Defendant’s competency to stand trial. Defendant also argues that the evidence was insufficient to support his convictions. After a thorough review of the record, we affirm the judgments of the trial court.

Wellesley Builders, L.L.C. v. Village of Cherry Glen Association, Inc.
M2002-03102-COA-R3-CV
Authoring Judge: Judge Patricia J. Cottrell
Trial Court Judge: Special ChancellerClaudia C. Bonnyman

The Homeowners' Association of a residential subdivision organized as a planned unit development assessed maintenance fees against the owner of twenty-two unimproved lots in the subdivision. The owner of those lots filed a suit to obtain a declaration that it was not liable for those fees, alleging that the developer had waived all assessments on vacant lots. The trial court found that the Association was entitled to rescind the waiver, granted summary judgment to the Association, and ordered the lot owners to pay the fees, as well as significant late charges and attorney fees, for a total of over $45,000. We reverse the judgment because there is no evidence in the record that the Board of Directors of the Homeowners' Association ever officially rescinded the waiver, and there is thus a material question of fact as to whether its assessments were valid.

State of Tennessee v. Leroy Nevils
M2003-00520-CCA-R3-CD
Authoring Judge: Judge John Everett Williams
Trial Court Judge: Judge Donald P. Harris

The defendant was convicted of DUI, second offense. He contends that 1) the evidence was insufficient, 2) the trial court erred in instructing the jury on reasonable doubt, 3) the trial court erred in instructing the jury as to the inference from refusal to submit to a chemical test, and 4) the trial court erred in failing to grant the motion to strike the enhancement count. The judgment of the trial court is affirmed.

State of Tennessee v. Leroy Nevils - Concurring
M2003-00520-CCA-R3-CD
Authoring Judge: Judge Joseph M. Tipton
Trial Court Judge: Judge Donald P. Harris

I concur in the results reached in the majority opinion. However, I question whether a “reasonable certainty” equates to a “moral certainty” relative to the definition of reasonable doubt in Tennessee. Also, I believe that trial courts in this state should not be using varying definitions of reasonable doubt.

State of Tennessee v. David Kyle Gilley
M2003-00499-CCA-R9-CD
Authoring Judge: Judge Thomas T. Woodall
Trial Court Judge: Judge Don Ash

Pursuant to Rule 9, Tennessee Rules of Appellate Procedure, both the defendant and the State were granted appeals from an interlocutory order of the trial court granting in part, and denying in part, Defendant's motion to exclude Rule 404(b), Tennessee Rules of Evidence, testimony. After a careful review of the evidence, we affirm in part and reverse in part the trial court's order.

State of Tennessee v. Dennis Ray Jones and Pamela Kay Barker
W2002-00402-CCA-R3-CD
Authoring Judge: Judge Norma McGee Ogle
Trial Court Judge: Judge Julian P. Guinn

Appellant Dennis Ray Jones was convicted in the Henry County Circuit Court of manufacturing methamphetamine and was sentenced to three years incarceration in the Tennessee Department of Correction. Appellant Pamela Kay Barker was convicted of criminal responsibility for facilitating the manufacturing of methamphetamine and was sentenced to two years incarceration in the Tennessee Department of Correction. On appeal, the appellants raise numerous issues, including the trial court’s ruling on a motion to suppress, the sufficiency of the evidence, and sentencing. Upon review of the record and the parties’ briefs, we affirm the judgments of the trial court but remand for a correction of Appellant Barker’s judgment of conviction.

State of Tennessee v. Dennis Ray Jones and Pamela Kay Barker - Concurring/Dissenting
W2002-00402-CCA-R3-CD
Authoring Judge: Judge James Curwood Witt, Jr.
Trial Court Judge: Judge Julian P. Guinn

I concur in affirming defendant Jones’s conviction of manufacturing methamphetamine but respectfully dissent from affirming Barker’s conviction of facilitation of the same offense.

Anthony Murff v. State of Tennessee
W2003-00467-CCA-R3-PC
Authoring Judge: Judge John Everett Williams
Trial Court Judge: Judge Joseph H. Walker, III

This is an appeal by the petitioner from the denial of his post-conviction relief petition. The petitioner was originally convicted of especially aggravated robbery and sentenced to 60 years at 100% service. After careful review, we affirm the denial of post-conviction relief.