Opinions

State vs. Danny Harold Ogle
E2000-00421-CCA-R3-CD
Authoring Judge: Judge Joe G. Riley

Defendant entered a best interest plea of guilty to vehicular homicide by recklessness. The plea attempted to reserve a certified question of law relating to the destruction of evidence; namely, the victim's vehicle. Specifically, defendant contends the destruction of the vehicle while it was under state control deprived him of due process, and the trial court should have dismissed the indictment. Upon our review of the record, we conclude that we have no jurisdiction to address the certified question. The appeal is dismissed.

State of Tennessee v. Harold L. Green
E2000-00616-CCA-R10-CD
Authoring Judge: Presiding Judge Joseph M. Tipton
Trial Court Judge: James B. Scott, Jr.

State vs. Jeffrey Dwight Whaley
E2000-00646-CCA-R3-CD
Authoring Judge: Judge Joe G. Riley
Trial Court Judge: Richard R. Baumgartner
The trial court dismissed defendant's DUI presentment, finding a denial of the right to a preliminary hearing. Upon the state's appeal, we find no evidence of bad faith by the state. Accordingly, we reverse and remand to the trial court for further proceedings consistent with this opinion.

State s. Ricky Eugene Cofer
E2000-00532-CCA-R3-CD
Authoring Judge: Judge Joe G. Riley
Trial Court Judge: E. Eugene Eblen
Defendant was indicted for aggravated robbery, and a Roane County jury found him guilty of the lesser offense of simple robbery, a Class C felony. The trial court sentenced him to six years as a Range II, multiple offender, to be served consecutively to a prior Anderson County sentence. In this appeal, defendant makes the following allegations: (1) the evidence was insufficient to support his conviction; (2) the jury foreman impermissibly interjected extraneous information into the jury deliberations; and (3) consecutive sentences were not warranted. Upon our review of the record, we affirm the judgment of the trial court.

Stephen L.Carey vs. State
E2000-00847-CCA-R3-PC
Authoring Judge: Judge Joe G. Riley
Trial Court Judge: Richard R. Baumgartner
This is a post-conviction appeal. The petitioner is currently serving life as an habitual criminal plus a consecutive 105 years for other offenses, all imposed in 1987. The petitioner timely filed three petitions for post-conviction relief challenging his guilty pleas for offenses occurring in 1969, 1981, and 1983, all of which were subsequently used to establish his habitual criminal status. The petitioner attempted to amend his petitions for post-conviction relief by challenging two of his 1987 convictions, but it was denied as untimely. All petitions were dismissed by the trial court after a hearing. In this appeal as a matter of right, the petitioner contends (1) he received ineffective assistance of counsel and inadequate advice of his constitutional rights from the trial court, thereby rendering his guilty pleas involuntary and unknowing; and (2) the post-conviction court erroneously dismissed his amendment to the petition for post-conviction relief. After a thorough review of the record, we conclude that the post-conviction court correctly denied post-conviction relief.

State vs. Vance Shelton
E2000-01632-CCA-R3-CD
Authoring Judge: Judge Joe G. Riley
Trial Court Judge: James E. Beckner
Defendant was convicted of rape of a child and aggravated sexual battery. The defendant was sentenced to twenty-five years for rape of a child and twelve years for aggravated sexual battery, to run consecutively to each other and consecutively to a prior four-year sentence. In this appeal, the defendant makes the following allegations: (1) the evidence was insufficient to support his convictions; (2) the trial court erred in failing to grant a mistrial due to a variance between the indictment and the state's proof at trial; (3) the trial court erred in ruling his prior convictions for arson would be admissible if he testified; and (4) his sentences are excessive. Upon our review of the record, we remand for modification of the judgment for aggravated sexual battery to reflect the proper date of the offense, but affirm the judgments in all other respects.

State vs. Ernest B. Eady
E2000-00722-CCA-R3-CD
Authoring Judge: Presiding Judge Joseph M. Tipton
Trial Court Judge: Richard R. Baumgartner
The defendant appeals from his conviction for second degree murder, contesting the sufficiency of the evidence, the timeliness of the state's disclosure of a potentially exculpatory witness, and the trial court's failure to declare a mistrial. We affirm the judgment of the trial court.

Martino vs. Dyer
M1999-02397-COA-R3-CV
Authoring Judge: Presiding Judge Patricia J. Cottrell
Trial Court Judge: William M. Dender
The trial court granted the motion of an attorney seeking collection of a pro rata share of his fee from a hospital lien against his client's settlement. The effect of the trial court's order is to require the hospital to pay fees to an attorney it did not hire. We reverse the judgment.

Tinkham vs. Beasley
M1999-02809-COA-R3-CV
Authoring Judge: Presiding Judge Patricia J. Cottrell
Trial Court Judge: Clara W. Byrd

Tinkham vs. Beasley
M1999-02809-COA-R3-CV
Authoring Judge: Presiding Judge Patricia J. Cottrell
Trial Court Judge: Clara W. Byrd

Alvin Vonner vs. State
M2000-00566-CCA-R3-CD
Authoring Judge: Judge J. Curwood Witt, Jr.
Trial Court Judge: Timothy L. Easter
The petitioner, Alvin Vonner, appeals the Hickman County Circuit Court's summary dismissal of his petition for habeas corpus relief and alleges that his 60 year second degree murder sentence has expired. Because the record fails to establish that the sentence has expired, we affirm the dismissal of the petition.

State vs. Coley
M1997-00116-SC-R11-CD
Authoring Judge: Justice Adolpho A. Birch, Jr.

Thomas Smith vs. Arthur Johnson
W2000-00063-COA-R3-CV
Authoring Judge: Judge Holly M. Kirby
Trial Court Judge: Joseph H. Walker, III
This is a wrongful death case. A car crossed the center line and collided with a dump truck, causing the dump truck to strike and kill three pedestrians, including the plaintiff's wife and son. The plaintiff sued the driver of the car, the driver of the dump truck, and the company for which the dump truck driver was hauling asphalt. The trial court granted summary judgment in favor of the company, finding that the truck driver was an independent contractor. At trial, the jury found that the driver of the car was 100% at fault for the accident, and that the truck driver bore no fault in the accident. The plaintiffs did not move for a new trial. The plaintiff filed a notice of appeal. We affirm the trial court's grant of summary judgment to the company, finding that the liability of the company would be derived from the fault of the truck driver in the operation or maintenance of his dump truck, and that the company could not be held liable where the jury found that the truck driver bore no fault in the accident.

Elvin Blankenship vs. Alvis Blankenship
W1999-02134-COA-R3-CV
Authoring Judge: Judge David R. Farmer
Trial Court Judge: Joe C. Morris
This appeal arises from a property line dispute between several parties. During the trial, the Chancellor appointed an independent surveyor as a Special Master to determine the actual location of the boundary lines between the parties. When the Special Master reported his results, the Chancellor concurred in his findings. We affirm.

Richard Stoner vs. Mary Stoner
W2000-01230-COA-R3-CV
Authoring Judge: Judge David R. Farmer
Trial Court Judge: Ron E. Harmon
This appeal arises from a divorce between a couple with a long standing pre-marital relationship. Citing this relationship, the trial court classified two stock accounts as marital property and awarded Wife a portion of their funds. These accounts were pre-marital accounts of Husband. No marital funds were deposited in the accounts by either party and Wife had no interaction with the accounts. Under the circumstances of this case, the trial court's classification of this property as marital property amounts to recognition of a common-law marriage, and Tennessee does not recognize common-law marriages. As such, the trial court was incorrect in awarding funds from the accounts to Wife. The trial court correctly assigned pre-marital debt, divided the remainder of marital property, and awarded alimony in futuro and attorney's fees. We affirm in part and reverse in part.

Dana Scott vs. Edward Sellers
W2000-00422-COA-R3-CV
Authoring Judge: Judge David R. Farmer
Trial Court Judge: George H. Brown
This is a personal injury and wrongful death case arising from a collision between a pickup truck and a tractor trailer truck. The five-year-old son of plaintiffs Dana Scott and Shane Thurmon died as a result of the accident. The driver of the car was an "on call" employee of his father's business at the time. The plaintiffs sued the driver of the car and his father, alleging vicarious liability under the doctrine of respondeat superior and under the family purpose doctrine. Plaintiff Dana Scott also sued for consortium-type damages for the loss of her son. Although referring to it as a directed verdict, the trial court, pursuant to Rule 41.02 of the Tennessee Rules of Civil Procedure, entered an involuntary dismissal in favor of the defendants on the vicarious liability issue, under both respondeat superior and the family purpose doctrine, and on the loss of filial consortium claim. The trial court awarded damages, inter alia, to Dana Scott for the wrongful death of her son and to Carl Fuhs for personal injuries based upon his negligent infliction of emotional distress claim. We hold the following: (1) employer is not vicariously liable under the doctrine of respondeat superior for acts or omissions of "on call" employee when employee is not acting within the course and scope of his employment; (2) the requirements of the family purpose doctrine were met and defendant Donald Sellers, Sr. is vicariously liable under this theory; (3) parents may recover filial consortium damages in wrongful death actions for the death of their child; (4) the trial court's wrongful death award to Dana Scott was supported by the evidence; (5) Carl Fuhs sufficiently established a claim for negligent infliction of emotional distress; and (6) the personal injury award to Carl Fuhs is affirmed.

State vs. Leon Hurd
E1999-01341-CCA-R3-CD
Authoring Judge: Judge Gary R Wade
Trial Court Judge: James B. Scott, Jr.

State vs. Tracie Kirkland
E1999-01344-CCA-R3-CD
Authoring Judge: Judge Joe G. Riley
Trial Court Judge: Carroll L. Ross
Defendant was convicted by a Monroe County jury of first degree premeditated murder and given a life sentence. In this appeal, defendant makes the following allegations of error: (1) the evidence was insufficient to sustain her conviction; (2) the trial court erred in denying a continuance; (3) the trial court improperly charged the jury on criminal responsibility for the conduct of another; and (4) the trial court erred in refusing to grant a new trial based upon newly discovered evidence. Upon our review of the record, we conclude the evidence was not sufficient to support a conviction for first degree premeditated murder, and defendant's sentence should be reduced to second degree murder. The other allegations of error are without merit. Therefore, the judgment of the trial court is modified to reflect a conviction for second degree murder, and the case is remanded to the trial court for a new sentencing hearing.

State vs. Leon Hurd
E1999-01341-CCA-R3-CD
Authoring Judge: Judge Gary R Wade
Trial Court Judge: James B. Scott, Jr.

State vs. Sean Imfeld
E2000-00094-CCA-R3-CD
Authoring Judge: Judge Gary R Wade
Trial Court Judge: Mary Beth Leibowitz

State vs. Sean Imfeld
E2000-00094-CCA-R3-CD
Authoring Judge: Judge Gary R Wade
Trial Court Judge: Mary Beth Leibowitz

State vs. Deandrade Phillips
E2000-00153-CCA-R3-CD
Authoring Judge: Presiding Judge Joseph M. Tipton
Trial Court Judge: Phyllis H. Miller
The defendant appeals from his conviction for selling less than one-half gram of cocaine, contesting the sufficiency of the evidence, the trial court's restrictions of his examinations of witnesses, the trial court's failure to require the state to elect the offense for which it sought a conviction, and the jury instructions. We affirm the judgment of the trial court.

State vs. Homer L. Evans
E2000-00069-CCA-R3-CD
Authoring Judge: Presiding Judge Joseph M. Tipton
Trial Court Judge: E. Shayne Sexton
The defendant appeals from the trial court's denial of alternative sentencing. We affirm the trial court.

State vs. Sonya Gosnell & Bronzo Gosnell, Jr .
E1999-00603-CCA-R3-CD
Authoring Judge: Judge Joe G. Riley
Trial Court Judge: James E. Beckner
A jury convicted both defendants of second degree murder. Bronzo Gosnell and Sonya Gosnell were sentenced to 25 years and 20 years, respectively. In this appeal as a matter of right, both defendants challenge the introduction of recorded conversations made while detained in a police cruiser. Sonya Gosnell further challenges the introduction of certain pretrial statements, the administration of a polygraph examination, the denial of her motion for severance, and the denial of expert assistance. Bronzo Gosnell further challenges the trial court's limitation of his cross-examination of a witness and his maximum sentence of 25 years. Our review of the issues presented by the defendants reflects no reversible error. Accordingly, we affirm the judgments of the trial court.

John Britt vs. Johnny Massengill
W1999-01129-COA-R3-CV
Authoring Judge: Presiding Judge Alan E. Highers
Trial Court Judge: Joe C. Morris
This is a suit arising from the Appellants' purchase of real property from the Appellees. The Appellees executed a warranty deed to the Appellants. The Appellants claim that the Appellees failed to disclose that the property was subject to a timber contract. The Appellants filed a complaint against the Appellees in the Chancery Court of Henderson County, requesting damages for violation of the Tennessee Consumer Protection Act. The trial court ordered rescission of the contract for the sale of real property.