State of Tennessee v. Donald Lee Reid
M2000-02026-CCA-R3-CD
Authoring Judge: Judge Joe G. Riley
Trial Court Judge: Judge Seth W. Norman

A Davidson County jury found Donald Lee Reid guilty of driving under the influence, first offense. The trial court imposed a sentence of 11 months and 29 days, suspended after service of 15 days confinement, and a fine of $500.00. Reid challenges his conviction, his sentence, and his fine. He raises the following issues on appeal: (1) whether the trial court erred in not conducting a jury-out hearing on the defendant's motion in limine regarding the admissibility of the defendant's BAC test results; (2) whether the trial court erred in allowing the results of the BAC test into evidence; (3) whether the trial court erred in refusing to instruct the jury on driving while impaired as a lesser-included offense of driving under the influence; (4) whether the defendant's sentence is excessive; and (5) whether the trial court unconstitutionally imposed a fine of $500.00 since the defendant did not waive his right for the jury to assess the fine. After a careful review of the record, we remand for a jury to assess the fine but affirm in all other respects.

State of Tennessee v. Steven Lee Whitehead
W2000-01062-CCA-R3-CD
Authoring Judge: Judge Norma McGee Ogle
Trial Court Judge: Judge Roy B. Morgan, Jr.

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.

State of Tennessee v. Kenneth Chambly
E2000-01719-CCA-R3-CD
Authoring Judge: Judge Joseph M. Tipton
Trial Court Judge: Judge Douglas A. Meyer

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.

Lawrence A. Strickland v. James Bowlen, Warden
E2001-01236-CCA-R3-CD
Authoring Judge: Judge J. Curwood Witt, Jr.
Trial Court Judge: Judge J. Curtis Smith

The petitioner, Lawrence A. Strickland, appeals the Bledsoe County Circuit Court’s dismissal of his petition for habeas corpus relief, which challenged his 1997 guilty-plea-based, Roane County conviction of aggravated sexual battery. Based upon our de novo review of matters of law, we conclude that the sentence imposed by the conviction court was void, although we reject the petitioner’s claim that the indictment is invalid. We reverse the judgment of the lower court and grant habeas corpus relief in the form of declaring the petitioner’s Roane County sentence void.  Because the conviction rests upon a guilty plea that, in turn, was premised upon the agreed sentence being valid, we vacate the petitioner’s conviction and sentence. The conviction court shall afford the petitioner the opportunity to withdraw his guilty plea pursuant to Tennessee Rule of Criminal Procedure 11(e)(4).

Cutler-Hammer, a Division of Eaton Corp. v. Timothy L. Crabtree
E1998-00845-SC-WCM-CV
Authoring Judge: Justice Adolpho A. Birch, Jr.
Trial Court Judge: Judge R. Steven Bebb

We granted review in this cause to determine whether the trial court erred in finding Timothy L. Crabtree permanently and totally disabled as a result of mental and physical injuries sustained while working for Cutler-Hammer. Crabtree injured his back while working on a production line; then, during treatment for the back injury, he developed severe depression. The trial court found that Crabtree was permanently and totally disabled as a result of the combined effect of his mental and physical injuries. The Special Workers' Compensation Appeals Panel rejected this finding, concluding instead that Crabtree's mental disorder was not compensable because it was not connected to his back injury, which was compensable. On review, we conclude that Crabtree's mental disorder resulted from his physical injury. We hold, therefore, that Crabtree's mental disorder is compensable, and we affirm the judgment of the trial court.

Glen Williamson v. Sentry Insurance Company,
E2000-01639-WC-R3-CV
Authoring Judge: John K. Byers, Sr. J.
Trial Court Judge: Billy Joe While, Chancellor
The trial judge found the plaintiff sustained a 44 percent permanent disability to the body as a whole. Further, the trial court awarded the plaintiff temporary disability benefits from February 16, 1994, until January 5, 1996. We affirm the judgment of the trial court.

Julie Amanda Durbin, et vir., v. Sumner County Regional Health Systems, Inc., et al.
M2000-02109-COA-R3-CV
Authoring Judge: Presiding Judge Ben H. Cantrell
Trial Court Judge: Judge Arthur E. McClellan

The appellants sued the appellees for claims connected with the death of the appellants' twin fetuses. The jury found in favor of the appellees, and, in addition, after the jury verdict, the trial court granted appellee Dr. Caldwell's motion to dismiss on the ground that the statute of limitations had run before he was sued. The appellants argue that this court should reverse the trial court's order dismissing Dr. Caldwell and overturn the jury's verdict. We reverse the trial court's order dismissing Dr. Caldwell, but affirm the jury verdict in his favor and in favor of the other appellee.

Christopher Alan Mcnew v. Knox County, Ex Rel: Sheriff's
E2000-01319-WC-R3-CV
Authoring Judge: William H. Inman, Sr. J.
Trial Court Judge: Daryl R. Fansler, Chancellor
The complaint alleged that the plaintiff sustained job-related injuries on or about July 4, 1998 within the scope of his employment. The answer denied occurrence or notice of an accidental injury. The plaintiff had an unusual history of injuries to his right knee. The trial judge ruled that the medical evidence was lacking as to the July 1998 injury and dismissed the case.

Vadalene Brewer v. Michael Dunn Center
E2000-01298-WC-R3-CV
Authoring Judge: John K. Byers, Sr. J.
Trial Court Judge: Frank V. Williams, III, Chancellor
The trial court found the plaintiff had sustained an injury to her left shoulder in the course and scope of her employment that resulted in 54 percent permanent partial disability. We affirm the judgment of the trial court.

Jessie M. Frederick v. Bowevil Express, Inc.,
W2000-02231-WC-R3-CV
Authoring Judge: Joe C. Loser, Jr., Sp. J.
Trial Court Judge: Joe C. Morris, Chancellor
In this appeal, the employer insists the award of permanent partial disability benefits based on 25 percent to the left arm is excessive. As discussed below, the panel has concluded the judgment should be affirmed.

Jimmy Joe Savage, et al., v. Don Hildenbrandt
M1999-00630-COA-R3-CV
Authoring Judge: Judge William C. Koch, Jr.
Trial Court Judge: Chancellor Russell Heldman

This appeal involves a dispute among neighbors arising out of a couple's decision to place a double-wide mobile home on their property. After one of their neighbors blocked the access road to their property to prevent them from setting up their mobile home, the couple who owned the mobile home filed suit in the Chancery Court for Perry County seeking injunctive relief and damages. In response, two of the neighboring property owners requested the trial court to establish the boundary lines, to enjoin the couple from encroaching on their property, and to award actual and punitive damages for the damage that the couple's encroachment had caused to their property. Following a bench trial that continued past midnight and a series of post-trial motions requesting various corrections in the judgment, the trial court eventually established the disputed boundary line and awarded the couple a $6,110.50 judgment against one of their neighbors to compensate them for the damages stemming from the delay in setting up their mobile home. The two neighboring property owners have appealed. They take issue with (1) the trial court's decision to hold court past midnight, (2) the manner in which the trial court considered and disposed of their post-judgment motions, (3) the trial court's decision regarding the location of the southern boundary line of the couple's property, and (4) the trial court's failure to reduce the $6,110.50 judgment by the amount of the damages the couple's encroachment had caused. We have concluded that the trial court did not commit reversible error during either the trial or the post-trial proceedings and that the trial court's decision to award the couple $6,110.50 is supported by the evidence. However, we have also concluded that the evidence preponderates against the trial court's decision regarding a portion of the couple's southern boundary line. Accordingly, we remand the case for the sole purpose of correcting the error regarding a portion of this boundary line.

Tanya Tucker, et al., v. Capitol Records, Inc. - Concurring
M2000-01765-COA-R3-CV
Authoring Judge: Judge Patricia J. Cottrell
Trial Court Judge: Chancellor Irvin H. Kilcrease, Jr.

I concur in the majority’s conclusion that Tenn. R. App. P. 54.02 does not provide this court
with jurisdiction in this case for the reasons set out in the majority opinion. I would, however, treat
this appeal as an interlocutory appeal under Tenn. R. App. P. 9. Bayberry would allow us to waive
the finality requirement of Tenn. R. App. P. 3(a) if we found good reason to suspend that
requirement.

In re: L.S.W., et al
M2000-01935-COA-R3-JV
Authoring Judge: Judge Patricia J. Cottrell
Trial Court Judge: Judge Max D. Fagan

This case involves the termination of parental rights of the mother of four children who were removed from the mother's home by the Department of Children's Services in 1998 and placed in foster care. DCS devised a Plan of Care for the mother, which, among other things, required her to address her drug and alcohol addictions. During the two and one-half years between the removal of the children from the home and the hearing on the petition to terminate parental rights, the mother made token efforts to improve her situation, but her substance abuse continued. The trial court terminated the mother's parental rights on multiple grounds, including the ground that the conditions that led to the children's removal continued to persist with little likelihood of remedy. Because DCS has established grounds for termination and has established that termination is in the best interest of the children, we affirm.

State of Tennessee v. Jason Allen Mobley and Debra Jean Mobley
W2000-01884-CCA-R3-CD
Authoring Judge: Judge Alan E. Glenn
Trial Court Judge: Judge Julian P. Guinn

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.

State of Tennessee v. Randall Keith Smith
W2000-02596-CCA-R3-CD
Authoring Judge: Judge David G. Hayes
Trial Court Judge: Judge Julian P. Guinn

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.

State of Tennessee v. Donald Steve Sikes
W2000-02960-CCA-R3-CD
Authoring Judge: Judge Alan E. Glenn
Trial Court Judge: Judge Donald H. Allen

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.

Elmer L. Fritts, Sr. v. James M. Dukes, Warden, and State of Tennessee
W2001-00833-CCA-R3-CD
Authoring Judge: Judge Alan E.Glenn
Trial Court Judge: Judge Joseph H. Walker, III

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.

Lori Ann Prosser v. Bedford County Board of Education
M2000-02424-WC-R3-CV
Authoring Judge: Joe C. Loser, Jr., Sp. J.
Trial Court Judge: F. Lee Russell, Judge
This workers' compensation appeal has been referred to theSpecial 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. In this appeal, the employer, Bedford County Board of Education, insists (1) the trial court erred in finding the employee provided the employer with proper notice of her injury, (2) the award of permanent partial disability benefits based on 42 percent to the body as a whole is excessive, (3) the trial court erred in awarding temporary total disability benefits for the period of April 4, 1996 through September 4, 1998, for a total of 129 weeks, (4) the trial court erred in ordering the employer to be responsible for the bills of non-approved physicians, and (5) the trial court erred in ordering the employer to reimburse the carriers who already partially paid the medical bills, even though they were not parties to the case. As discussed below, the panel has concluded the award of medical benefits to non- parties should be vacated, the award of temporary total disability benefits modified and the judgment otherwise affirmed. Tenn. Code Ann. _ 5-6-225(e) (1999) Appeal as of Right; Judgment of the Circuit Court Vacated in part; Modified in part; Affirmed in part; Remanded. JOE C. LOSER, JR., SP. J., in which ADOLPHO A. BIRCH, JR., J., and JAMES WEATHERFORD, SR. J., joined. Kent E. Krause and Gordon C. Aulgur, Nashville, Tennessee, for the appellant, Bedford County Board of Education. Andrew C. Rambo, Shelbyville, Tennessee, for the appellee, Lori Ann Prosser. MEMORANDUM OPINION The employee or claimant, Lori Ann Prosser, worked for the employer as a school bus driver. On March 14, 1996, she ran her early morning route and had parked her bus at Central High School to drive students on a field trip. She conducted a pre-trip inspection, which included cleaning out the bus and checking the oil, then went outside to have coffee with her co- workers. When she bent over to set her coffee down, she felt immediate pain starting in her back and going down her right leg. She drove her bus on the field trip without notifying the employer of her injury. After the field trip, she called her supervisor, Tim Fleming, and, according to her testimony, told him she hurt her back while preparing for the field trip and needed to see a doctor. Fleming remembered having the conversation, but testified that the claimant never told him that she had a job related injury. The trial judge believed the claimant. After continuing to work for two more weeks, then again contacting Fleming, the claimant reported to a Murfreesboro emergencyroom and was referred to Dr. Robert Weiss. An MRI, ordered by Dr. Weiss, revealed disc herniations at L4-5 and L5-S1. Dr. Weiss performed corrective surgery on April 24, 1996. A second surgical procedure was performed five days later. When the employer failed to provide medical care and the claimant's disabling pain was not relieved, the claimant sought out Dr. Robert McCombs on October 28, 1996. Dr. McCombs performed a third surgical procedure on April 1, 1997 and provided follow-up care until December 1, 1997, when, the doctor reported, the claimant reached maximum medical improvement. His final diagnosis was chronic lumbar radiculopathy and he estimated her permanent impairment at 13 percent to the whole body. Dr. McCombs also restricted her from lifting more than 2 pounds at all or more than 5 pounds repetitively and from prolonged bending, twisting or stooping. When the claimant continued to have back problems and an MRI scan revealed a recurrent disc herniation at L5-S1, a fourth surgery was performed on September 24, 1998. She reached maximum medical improvement from that surgery on February3, 1999 and Dr. McCombs estimated her permanent impairment at 14 percent to the whole body. The claimant continues to take medication and is severely limited in her activities, including driving. She has not returned to work. The record contains conflicting lay proof. Her husband and a friend support the claimant's testimony, but two other bus drivers testified that the claimant did not appear to be injured on the date of the accident. Upon the above summarized evidence, the trial court awarded temporary total disability benefits from April 4, 1996 through September 24, 1998, ordered the employer to pay the bills of the named physicians and to reimburse any non-party health insurance carrier that had paid the bills in part, without naming the carrier or the amount of the award, and awarded permanent partial disability benefits based on 42 percent to the body as a whole. Appellate review is de novo upon the record of the trial court, accompanied by a presumption of correctness of the findings of fact, unless the preponderance of the evidence is otherwise. Tenn. Code Ann. _ 5-6-225 (e) (2). This tribunal is not bound by the trial court's findings but instead conducts an independent examination of the -2-

John Clark Garrison v. State of Tennessee
E2000-00858-CCA-R3-PC
Authoring Judge: Judge Thomas T. Woodall
Trial Court Judge: Judge Julian P. Guinn

Petitioner, John Clark Garrison, filed a petition for post-conviction relief attacking his two convictions for theft of property over the value of $10,000.00 but less than $60,000.00. Petitioner was represented by counsel who filed the petition for post-conviction relief on his behalf. The State filed a response to the petition. The trial court dismissed the petition without an evidentiary hearing, finding that all of the issues were either previously determined, waived, insufficient to assert specific allegations of ineffective assistance of counsel, or presented no question of constitutional deprivation. We affirm the judgment of the trial court.

Charles Montague v. State of Tennessee
E2000-01330-CCA-R3-PC
Authoring Judge: Judge John Everett Williams
Trial Court Judge: Judge Lynn W. Brown

The petitioner appeals from the post-conviction court's summary dismissal of his post-conviction relief petition for failing to be properly verified under oath. The issue is whether a petition for post-conviction relief must be verified under oath and whether the petitioner's "affidavit and sworn statement" was sufficient to satisfy that requirement. We conclude that the post-conviction court was correct in summarily dismissing the petition for failing to be properly verified under oath.

George R. Lee v. T.I.G. Insurance,
E2000-02726-WC-R3-CV
Authoring Judge: John K. Byers, Sr. J.
Trial Court Judge: Harold Wimberly, Chancellor
The trial court based its findings on both the lay and expert testimony_notably the fact that the employee had been performing his job for seventeen or eighteen years and as a result of the incident was unable to continue in his position because of his age. The trial court also noted the plaintiff's "obvious limitations as to education and intellectual ability" as well as the vocational disability experts opinions that the plaintiff's occupational loss was between 45 and 8%. The evidence does not preponderate against the trial court's findings in this regard. The judgment of the trial court is affirmed.

Maggie Jean Hicks v. Kroger Food Stores, Inc.,
E2000-01449-WC-R3-CV
Authoring Judge: John K. Byers, Sr. J.
Trial Court Judge: James B. Scott, Jr., Judge
The plaintiff filed a petition under Tennessee Code Annotated _ 5-6-241(a)(2) for reconsideration of her previous workers' compensation award, which was awarded to her by an order dated March 25, 1999 and which limited her to an award of seventeen percent based upon the two and one-half times the medical impairment rating she sustained as a result of an injury on December 12, 1996, because she returned to work at a rate of pay equal to or greater than what she received prior to the injury. The trial judge found the plaintiff could properly file for reconsideration and increased the amount of the plaintiff recovery from seventeen percent permanent partial vocational disability to forty percent partial vocational disability. We reverse the judgment of the trial court.

Richard Burt McKee v. State of Tennessee
M2000-2866-CCA-R3-PC
Authoring Judge: Judge David H. Welles
Trial Court Judge: Judge Robert E. Burch

The Defendant was convicted by a jury of first degree premeditated murder and sentenced to life imprisonment without parole. His conviction and sentence were affirmed on direct appeal. See State v. Richard Burt McKee, No. 01C01-9606-CC-00278, 1998 WL 155558, at *1 (Tenn. Crim. App., Nashville, Mar. 31, 1998). The Defendant filed for post-conviction relief in December 1998 alleging that he received ineffective assistance of counsel at trial and on appeal and that juror misconduct during deliberations entitles him to a new trial. The post-conviction court denied relief after an evidentiary hearing. The Defendant now appeals as of right. Finding no merit in the Defendant's contentions, we affirm the post-conviction court's judgment.

George D. Fitzpatrick v. State of Tennessee
M2000-02566-CCA-R3-PC
Authoring Judge: Judge Thomas T. Woodall
Trial Court Judge: Judge Cheryl A. Blackburn

The Davidson County Grand Jury indicted the Petitioner for one count of rape and one count of assault. The Petitioner's first trial ended with a hung jury. Following a second trial, the Petitioner was convicted of rape and assault, and sentenced to an effective thirty years of incarceration. His convictions and sentences were upheld on direct appeal. See State v. George D. Fitzpatrick, No. 01C01-9709-CR-00398, 1998 WL 775665 at *1, Davidson County (Tenn. Crim. App., Nashville, Nov. 4, 1998), perm. to appeal denied (Tenn. 1999). Subsequently, the Petitioner filed a timely petition for post-conviction relief alleging ineffective assistance of counsel at his trial. After a hearing the court below dismissed the petition, from which ruling the Petitioner now appeals. Upon our review of the record, we affirm the judgment of the post-conviction court.

State vs. Kermit Maurice Cozart
W1999-00022-SC-R11-CD
Authoring Judge: Justice Janice M. Holder
Trial Court Judge: Julian P. Guinn
We granted review of this case to decide whether a trial court must instruct the jury based upon this Court's holding in State v. Anthony, 817 S.W.2d 299 (Tenn. 1991). We hold that the trial court properly declined to instruct the jury that it should determine whether the confinement, movement, or detention inherent in the kidnapping was essentially incidental to the accompanying robbery. Applying the principles first enunciated in Anthony, we further hold that the dual convictions for aggravated robbery and aggravated kidnapping in this case do not violate due process. Accordingly, we affirm the judgment of the Court of Criminal Appeals.