State of Tennessee v. Carvin Lamont Thomas
M2002-01716-CCA-R3-CD
Authoring Judge: Judge Thomas T. Woodall
Trial Court Judge: Judge Steve R. Dozier
The Davidson County Grand Jury returned an eight count indictment against Defendant, Carvin Lamont Thomas, as follows: count one, especially aggravated robbery of Darrell Roundtree; count two, aggravated burglary of a habitation; count three, aggravated burglary of a habitation; count four, especially aggravated kidnapping of William Swift; count five, especially aggravated kidnapping of Darrell Roundtree; count six, especially aggravated kidnapping of Derrick Salter; count seven, unlawful possession of a handgun at a place open to the public; and count eight, possession with the intent to sell .5 grams or more of cocaine, a Schedule II controlled substance.  At the close of the State's proof, the trial court dismissed count three, aggravated burglary of a habitation, and count five, especially aggravated kidnapping of Darrell Roundtree. Following a jury trial, Defendant was convicted of counts one, two, four, seven and the lesser included offense of simple possession on count eight. The trial court declared a mistrial as to count six. After a sentencing hearing, the trial court sentenced Defendant to ten years for the especially aggravated robbery conviction, six years for the aggravated burglary conviction, twenty-four years for the especially aggravated kidnapping conviction, eleven months and twenty-nine days for the possession of a handgun conviction, and eleven months and twenty-nine days for simple possession of a Schedule II controlled substance. The trial court ordered the sentences for especially aggravated robbery, aggravated burglary and especially aggravated kidnapping to run consecutively.  Defendant’s sentences for possession of a handgun and possession of a controlled substance were ordered to run concurrently with his other sentences, for an effective sentence of forty years. In his direct appeal, Defendant challenges only his conviction for especially aggravated kidnapping alleging that (1) the trial court erred in not granting Defendant’s motion for judgment of acquittal as to the charge of especially aggravated kidnapping; and (2) Defendant’s conviction for especially aggravated kidnapping violates due process principles as outlined in the Tennessee Supreme Court's decision in State v. Anthony, 817 S.W.2d 299 (Tenn. 1991). We affirm the judgment of the trial court.

State of Tennessee v. Carvin Lamont Thomas - Dissenting
M2002-01716-CCA-R3-CD
Authoring Judge: Judge Joseph M. Tipton
Trial Court Judge: Judge Steve R. Dozier
I respectfully dissent from the majority opinion’s conclusions that State v. Anthony, 817 S.W.2d 299 (Tenn. 1991), is not implicated and that the especially aggravated kidnapping conviction withstands an Anthony analysis. I believe that the aggravated kidnapping conviction should be dismissed.

State v. Gonzalo Moran Garcia
M2000-01760-SC-R11-CD
Authoring Judge: Justice William M. Barker
Trial Court Judge: Steve R. Dozier

State v. Gonzalo Moran Garcia
M2000-01760-SC-R11-CD
Authoring Judge: Justice William M. Barker
Trial Court Judge: Steve R. Dozier

State of Tennessee v. Fredrick Robinson
W2002-00601-CCA-R3-CD
Authoring Judge: Judge Alan E. Glenn
Trial Court Judge: Judge Joseph B. Dailey

The defendant was convicted by a Shelby County Criminal Court jury of aggravated burglary, a Class C felony, and sentenced by the trial court as a Range III, persistent offender to fifteen years in the Department of Correction. In this appeal as of right, he raises two issues: whether the evidence was sufficient to support his conviction and whether the trial court committed reversible error by failing to instruct the jury on the lesser-included offense of facilitation. Following our review, we affirm the judgment of the trial court.

State of Tennessee v. Theron Davis
W2002-00446-CCA-R3-CD
Authoring Judge: Judge Alan E. Glenn
Trial Court Judge: Judge Chris B. Craft

The defendant was convicted by a Shelby County Criminal Court jury of especially aggravated robbery and criminal attempt to commit second degree murder for his role with a codefendant in robbing and shooting the owner of a Memphis jewelry store. He was sentenced by the trial court to consecutive terms of twenty-three years at 100% for the especially aggravated robbery conviction and twelve years at 30% for the attempted second degree murder conviction. In a timely appeal to this court, the defendant raises the following four issues: (1) whether the trial court erred by overruling his motion to suppress the victim's identification testimony; (2) whether the trial court erred by denying his request for a special jury instruction; (3) whether the trial court committed plain error in its instruction of the definition of "knowingly"; and (4) whether the trial court erred by ordering consecutive sentencing. Based on our review of the record and applicable law, we affirm the judgments of the trial court.

State of Tennessee v. Robert Tyler Haynes
W2002-02006-CCA-R3-CD
Authoring Judge: Judge Joe G. Riley
Trial Court Judge: Judge Roy B. Morgan, Jr.

In this direct appeal, the defendant argues the trial court erred in revoking his probation and requiring him to serve his four-year sentence in the Department of Correction. We affirm the judgment of the trial court.

State v. Keena Mathes
E2001-00753-SC-R11-CD
Authoring Judge: Justice Janice M. Holder
Trial Court Judge: Robert E. Cupp
In this appeal, the appellant asserts that the trial court erred in ordering that she legitimate her youngest child as a condition of probation. Having carefully reviewed the issues raised by the parties, we hold that the trial court erred in requiring the appellant to legitimate her child as a condition of probation. Accordingly, we reverse the judgment of the Court of Criminal Appeals affirming the legitimation condition and remand the case for proceedings consistent with this opinion.

State ex rel Moore & Assoc. v. Terrence Cobb
M2002-00504-COA-R3-CV
Authoring Judge: Presiding Judge Alan E. Highers
Trial Court Judge: Irvin H. Kilcrease, Jr.
This is an appeal of a denial of a writ of mandamus. Moore & Associates requested the lower court to require the Department of Codes Administration to issue an occupancy permit for the Hilton Garden Inn pursuant to the Metropolitan Code, Title 16, Chapter 36, Section 020(A). The Department of Codes Administration refused to issue the occupancy permit for the building because it felt that the landscape buffer yard did not comply with plans submitted. The trial court agreed with the Department and found that the term "building" includes the landscape buffer yard. For the following reasons, we reverse.

Patricia Conley v. State
M2002-00813-COA-R3-CV
Authoring Judge: Presiding Judge Alan E. Highers
This is an appeal from the Claims Commission. The Claims Commissioner dismissed both claims alleged by Ms. Conley on the motion of the State. Additionally, the Claims Commissioner found that the State is not a governmental entity for the purposes of Tennessee Code Annotated section 20-1-119(g). For the following reasons, we reverse and remand.

Cynthia Barnett v. Barbara Behringer
M1999-01421-COA-R3-CV
Authoring Judge: Judge William C. Koch, Jr.
Trial Court Judge: Ellen Hobbs Lyle
This appeal involves a dispute between the owners of units in a duplex arising out of the plans of one owner's tenants to build a free-standing storage building on her lot. The owner who opposed the storage building filed suit in the Chancery Court for Davidson County seeking an injunction against violating restrictive covenants and zoning regulations, as well as damages for trespass. The trial court granted the defendant owner's and tenants' motion for summary judgment and dismissed the complaint. On this appeal, the owner who objected to the storage building asserts that material factual disputes should have prevented the trial court from granting the summary judgment and that her neighbor and her neighbor's tenants had not demonstrated that they were entitled to a judgment as a matter of law. We have determined, as a matter of law, that the proposed storage building does not violate the restrictive covenants or applicable zoning regulations and that the plaintiff is not entitled to injunctive relief. Accordingly, we affirm the summary judgment dismissing the complaint.

Troy Allen Thompson v. Elisa Connell Hulbert
W2003-01275-COA-RM-CV
Authoring Judge: Judge Holly M. Kirby
Trial Court Judge: A. V. Mcdowell

State v. Jerry Graves
E2001-00123-SC-R11-CD
Authoring Judge: Justice E. Riley Anderson
Trial Court Judge: Richard R. Baumgartner

State v. Jerry Graves
E2001-00123-SC-R11-CD
Authoring Judge: Justice E. Riley Anderson
Trial Court Judge: Richard R. Baumgartner

Jason Lewis Adams v. State of Tennessee
E2001-02765-CCA-R3-PC
Authoring Judge: Judge Alan E. Glenn
Trial Court Judge: Judge Douglas A. Meyer

On January 5, 2001, the petitioner pled guilty to filing a false police report, aggravated burglary, theft over $1000, vandalism, carjacking, two counts of especially aggravated kidnapping, and two counts of aggravated robbery and received a fifteen-year sentence. On February 2, 2001, he filed a motion to withdraw his guilty pleas, which was determined to be untimely and was treated as a petition for post-conviction relief. Because of the subsequent decision of our supreme court in State v. Green, __ S.W.3d __ (Tenn. 2003), we conclude that the petitioner's motion to withdraw his pleas of guilty was timely and should have proceeded pursuant to Tennessee Rule of Criminal Procedure 32(f), Withdrawal of Plea of Guilty. We reverse the order of the post-conviction court and remand for the petitioner's motion to withdraw his pleas of guilty to be considered as timely.

State of Tennessee v. Brian Webb
E2002-02470-CCA-R3-CD
Authoring Judge: Judge Thomas T. Woodall
Trial Court Judge: Judge Ben W. Hooper, II

The State appeals the ruling of the Cocke County Circuit Court amending its judgments pertaining to the sentencing of Defendant, Brian Webb, pursuant to Rule 36 of the Tennessee Rules of Criminal Procedure. Under the terms of a plea agreement involving Defendant's four theft convictions in Cocke and Jefferson counties, the trial court sentenced Defendant on January 8, 2001 to an effective three-year sentence to be served concurrently with Defendant's federal sentence of twenty-four months arising out of the same incident. The trial court's judgment was entered on January 30, 2001 following Defendant's incarceration in federal prison on January 29, 2001. On August 22, 2002, Defendant filed a motion to correct a mistake in the trial court's judgment. After a brief hearing, the trial court granted Defendant's motion and ordered that Defendant's state sentences be modified to time served and the balance served on probation to reflect the trial court's understanding at the time of sentencing that Defendant's sentences would run "coterminous" rather than "concurrently" with his federal sentence. The State argues that the record in this matter does not contain any clerical errors, and the trial court was without jurisdiction to modify Defendant's sentence. After a careful review of this matter, we reverse the judgment of the trial court, and this case is remanded for reinstatement of the judgments of conviction as originally entered.

State of Tennessee v. Steve A. White
W2000-01148-CCA-R3-CD
Authoring Judge: Judge Joseph M. Tipton
Trial Court Judge: Judge Joseph B. Dailey

The defendant, Steve A. White, was convicted by a Shelby County Criminal Court jury of attempted first degree premeditated murder, a Class A felony; theft of property valued $10,000 or more but less than $60,000, a Class C felony; and violating the sales tax law, a Class E felony. The trial court sentenced the defendant as a Range I, standard offender to an effective sentence of thirty-one years in the Department of Correction. The defendant appeals, claiming (1) that the evidence is insufficient; (2) that the trial court erred by denying his motion for a bill of particulars; (3) that the trial court erred by denying his motion to exclude evidence; (4) that the trial court erred by failing to instruct the jury after the prosecution asked a witness an inappropriate question; (5) that the trial court improperly excluded impeachment evidence; (6) that the trial court made several errors regarding the victim's testimony; (7) that the trial court improperly restricted the defense expert's testimony; and (8) that the trial court improperly allowed the state to make inappropriate comments during its closing argument. We affirm the judgments of the trial court.

State of Tennessee v. Clint Ray McCoy
W2002-01017-CCA-R3-CD
Authoring Judge: Judge David H. Welles
Trial Court Judge: Judge Julian P. Guinn

The Defendant, Clint Ray McCoy, pled guilty to twelve counts of theft: one Class C felony, nine Class D felonies, one Class E felony, and one Class A misdemeanor. Sentencing was left to the discretion of the trial court. The trial court ordered the Defendant to serve an effective sentence of eight years, with one year to be served in confinement and the balance to be served in the Community Corrections program. In this direct appeal, the Defendant argues that the trial court erred by enhancing his sentences and by ordering him to serve one year in confinement. We affirm the judgment of the trial court.

State of Tennessee v. Jeremiah Wiseman
W2002-01674-CCA-R3-CD
Authoring Judge: Judge David G. Hayes
Trial Court Judge: Judge Joseph B. Dailey

The Appellant, Jeremiah Wiseman, pled guilty to carjacking, a class B felony, and was sentenced as a mitigated offender to the Department of Correction for a term of 7.2 years. On appeal, the Appellant argues that the trial court erred by denying him a probated sentence. Finding no error in the record, we affirm.

State of Tennessee v. Jeffery W. Alexander
W2002-01722-CCA-R3-CD
Authoring Judge: Judge J. Curwood Witt, Jr.
Trial Court Judge: Judge Jon Kerry Blackwood

Convicted of burglary and theft of property valued at more than $1,000 but less than $10,000, the defendant, Jeffery W. Alexander, claims on appeal that the convictions are unsupported by sufficient evidence, that the trial court erred in admitting copies of photographs of the crime scene, and that the trial court erroneously sentenced him as a career offender. Because our review of the record, the briefs, and the applicable law exposes no reversible error, we affirm.

State of Tennessee v. Stephon Harden
E2002-01477-CCA-R3-CD
Authoring Judge: Judge David G. Hayes
Trial Court Judge: Judge R. Jerry Beck

The Appellant, Stephon Harden, appeals from the judgment of the Sullivan County Circuit Court revoking his probation and remanding him to the Department of Correction. In March of 1999, Harden pled guilty to two counts of class E felony theft, one count of forgery, aggravated burglary, and failure to appear. He received an effective six-year sentence to be served in the Department of Correction. Harden was released following completion of the "boot camp" program and was administratively granted probation by the Commissioner of Correction. Warrants alleging violations of his probationary sentence were issued on February 21st and 28th of 2002. Following a hearing, he was found in violation of his probation and resentenced to the Department of Correction. On appeal, he argues that the trial court erred by failing to consider alternatives to revocation. Finding no merit to Harden's claim, the judgment of the trial court is affirmed.

Robert Foster v. Morrow Trucking, Inc.,
W2002-00041-SC-WCM-CV
Authoring Judge: John K. Byers, Sr. J.
Trial Court Judge: C. Creed Mcginley, 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 judge found the plaintiff sustained a compensable injury to his back as a result of a fall. Further, the trial judge found the plaintiff had sustained a previous disabling condition by reason of diabetes and spondylolisthesis, which were non-work related conditions, and found that the current disability coupled with the pre-existing disabilities rendered the plaintiff totally and permanently disabled. The trial judge applied Tenn. Code Ann. _ 5-6-28(a) and ordered the award to be compensation for a period of 842 weeks and 8 days. The defendant was ordered to pay 421 weeks and 4 days of the award and the Second Injury Fund was ordered to pay 421 weeks and 4 days of the award thereafter. The trial judge, however, failed to make specific findings of fact regarding the extent of disability the employee would have experienced without any preexisting disabilities. We therefore remand the case so that such a determination can be made. Tenn. Code Ann. _ 5-6-225(e) (1999) Appeal as of Right; Case Remanded JOHN K. BYERS, SR. J., in which JANICE M. HOLDER, J., and JOE C. LOSER, SP. J., joined. Richard W. Mattson, Nashville, Tennessee, for appellants, Morrow Trucking, Inc. and Logistics Personnel Corporation. Ricky L. Boren, Jackson, Tennessee, for appellee, Robert Foster. Paul G. Summers, Attorney General and Reporter; E. Blaine Sprouse, Assistant Attorney General, for appellee, Second Injury Fund, State of Tennessee. MEMORANDUM OPINION Review of the findings of fact made by the trial court is de novo upon the record of the trial court, accompanied by a presumption of the correctness of the finding, unless the preponderance of the evidence is otherwise. Tenn. Code Ann. _ 5-6-225(e)(2). Stone v. City of McMinnville, 896 S.W.2d 548, 55 (Tenn. 1995). The application of this standard requires this Court to weigh in more depth the factual findings and conclusions of the trial courts in workers' compensation cases. See Corcoran v. Foster Auto GMC, Inc., 746 S.W.2d 452, 456 (Tenn. 1988). Facts The plaintiff was forty-nine years of age at the time of this trial. He had completed nine years of school and does not have a GED. His work history is primarily labor-type jobs and truck driving. At the time the plaintiff was hired by the defendant, he submitted a physical report to the defendant. In that report, the plaintiff reported that he had diabetes and was taking pills for it. The record reflects the plaintiff told the defendant at the time of the pre-hire interview that he had a significant diabetic problem. The plaintiff testified that to be able to drive a truck diabetics had to be controlled by medication but if the diabetic is controlled by insulin a person is prohibited by Department of Transportation [DOT] regulations from driving. The plaintiff had been treated for back pain and diabetes prior to going to work for the defendant. According to his physician of many years, the plaintiff was diagnosed with diabetic peripheral neuropathy, a disease caused by uncontrolled diabetes, in June of 1997. The plaintiff began working for the defendant in October of 1999. On or about November 4, 1999, as the plaintiff was descending from his truck to put fuel in the tank, he fell and struck the left side of his back on the concrete platform upon which the pumps sat. The plaintiff attempted to continue his assigned delivery route but was unable to do so and had to return to the drivers' terminal because of back pains. The plaintiff subsequently saw Dr. Michael Glover for treatment and Dr. Joseph C. Boals for evaluation. The plaintiff testified that as a result of his back injury he was ultimately unable to drive a truck because his left leg became so weak he could not depress the clutch pedal on a truck. Medical Evidence Dr. Y. N. Pakkala testified that he first started treating the plaintiff in 1993. The plaintiff complained of low back pain and was given medication. In March of 1994, the plaintiff again complained of back pain. Dr. Pakkala found a muscle spasm suggesting a sprain of the plaintiff's back. In April 1995, he diagnosed the plaintiff as being diabetic. Dr. Pakkala testified the plaintiff -2-

Steve Kyger v. State of Tennessee
M2002-01449-CCA-R3-PC
Authoring Judge: Judge David G. Hayes
Trial Court Judge: Judge Douglas A. Meyer

The Appellant, Steve Kyger, appeals the dismissal of his petition for post-conviction relief by the Rutherford County Circuit Court. On December 21, 1987, Kyger was convicted of first degree murder, armed robbery, and joyriding, and received a sentence of life imprisonment plus thirty-five years in the Department of Correction. On appeal, Kyger challenges these convictions raising the single issue of ineffective assistance of counsel. Finding no error, we affirm the judgment of the post-conviction court.

Bob Kielbasa, et al v. B & H Rentals
M2002-00129-COA-R3-CV
Authoring Judge: Judge William B. Cain
Trial Court Judge: John D. Wootten, Jr.
Plaintiffs appeal from the action of the trial court dismissing their Complaint for Declaratory Judgment on the basis that it is barred by the statute of limitations. A previous Petition for Writ of Certiorari under Tennessee Code Annotated section 27-9-101 had been dismissed by the Chancery Court of Wilson County because it was filed after the limitation period provided by Tennessee Code Annotated section 27-9-102 had expired. That dismissal was upheld on appeal and this suit for declaratory judgment followed. The trial court correctly dismissed the complaint because of the expiration of the statute of limitations.

Christopher Curry v. Fred Raney, Warden
W2002-01174-CCA-R3-CO
Authoring Judge: Judge Norma McGee Ogle
Trial Court Judge: Judge R. Lee Moore Jr.

The petitioner, Christopher Curry, filed in the Lake County Circuit Court a pro se petition for writ of habeas corpus, alleging that his confinement was illegal due to the expiration of his sentence. The habeas corpus court summarily dismissed the petition and the petitioner appealed. Upon review of the record and the parties' briefs, we reverse the dismissal of the petition for habeas corpus relief and remand to the habeas corpus court for the appointment of counsel and an evidentiary hearing to determine whether the petitioner's sentence has expired.