State, ex rel Tewanna Stewart vs. Gary Lockett
M2001-00809-COA-R3-JV
Authoring Judge: Judge Ben H. Cantrell
Trial Court Judge: Betty Adams Green
The juvenile court ordered the father of a minor child to pay retroactive child support for the first ten years after the child's birth. Because the court did not want to create a windfall for the mother, it ordered that only part of the retroactive support be paid to her, and that the remainder be placed in an educational trust fund for the child's benefit. The State argues on appeal that under the facts of this case, the creation of an educational trust fund is not authorized by the child support statutes and guidelines. We affirm the award of retroactive child support, but we reverse its allocation between the mother and the child.

State of Tennessee v. Dedonnas R. Thomas
W2000-01465-CCA-R3-CD
Authoring Judge: Judge J. Curwood Witt, Jr.
Trial Court Judge: Judge Joseph B. Dailey

The defendant was tried by jury in the Shelby County Criminal Court on two counts of felony possession of marijuana arising from a single episode. The jury acquitted the defendant of possession of marijuana with intent to sell but convicted him of possession with intent to deliver. The trial court ordered a two-year workhouse sentence. On appeal, the defendant questions the sufficiency of the evidence, and he complains that erroneous evidentiary rulings, inadequate jury instructions, and prosecutorial misconduct during closing arguments require a new trial. Based upon our review, we affirm the conviction.

Jose D. Holmes v. State of Tennessee
W2000-02600-CCA-R3-PC
Authoring Judge: Judge Norma McGee Ogle
Trial Court Judge: Judge Bernie Weinman

The petitioner, Jose D. Holmes, appeals the denial of post-conviction relief by the Criminal Court of Shelby County from his conviction of especially aggravated robbery. In this appeal, the petitioner claims that he received ineffective assistance of counsel. Following a review of the record and the parties' briefs, we affirm the judgment of the post-conviction court.

State of Tennessee v. Larry Halliburton
W2001-00755-CCA-R3-CO
Authoring Judge: Judge John Everett Williams
Trial Court Judge: Judge Donald H. Allen

A claim that a guilty plea was not knowingly and voluntarily entered because of coercion is not cognizable in a habeas corpus proceeding. We affirm the trial court's denial of the writ.

James Ferguson v. Kelly Lee Ferguson
M2001-01836-COA-R3-CV
Authoring Judge: Judge William B. Cain
Trial Court Judge: Stella L. Hargrove
Appellant, an inmate of the Tennessee Department of Correction currently confined at South Central Correctional Center in Clifton, Wayne County, Tennessee, appeals the dismissal by the trial court of his divorce complaint. His wife is a resident of Bristol, Virginia, and the parties separated in Cheatham County, Tennessee in 1987. The trial court dismissed the case for lack of venue. We affirm with a suggestion that the case be transferred to a court having divorce jurisdiction in Cheatham County, Tennessee, or such a court in the county where Appellant resided at the time he was first incarcerated in the Department of Corrections.

State of Tennessee v. Keena D. Mathes
E2001-00753-CCA-R3-CD
Authoring Judge: Judge Alan E. Glenn
Trial Court Judge: Judge Robert E. Cupp

The defendant was convicted by a jury of reckless aggravated assault, a Class D felony, for cutting the victim's face with a razor blade. The trial court granted her judicial diversion, sentencing her as a Range I, standard offender to two years incarceration, but suspending the sentence and placing her on three years of probation under the supervision of the Department of Correction, including among the conditions that she pay restitution for the victim's medical bills and lost wages. Following extensive testimony as to the defendant's limited financial resources, the trial court ordered as a condition of probation that she legitimate her nine-month-old daughter to ensure that she could meet her financial obligations, including payment of restitution to the victim. In a timely appeal to this court, the defendant raises the sole issue of whether the trial court erred by requiring her to legitimate the younger of her two illegitimate children and seek child support payments for that child. We conclude that the legitimation requirement is a valid condition of probation. However, since a judgment of conviction, although not to be entered following judicial diversion, was entered in this matter, we remand for withdrawal of the judgment, the trial court to then clarify whether the defendant is to be sentenced with the sentence suspended or to be granted judicial diversion.

State of Tennessee v. Connie Lee Arnold
E2001-00618-CCA-R3-CD
Authoring Judge: Judge Joseph M. Tipton
Trial Court Judge: Judge Lynn W. Brown

The defendant, Connie Lee Arnold, appeals from the Carter County Criminal Court's denial of his motion for return of property by the state in its prosecution of him and for return of property and files in the possession of his former trial attorney. The trial court concluded that it had no jurisdiction to rule in the matter. The state agrees with the defendant that the trial court has jurisdiction to act on the motion relative to evidence used in the case and otherwise seized and possessed by the state, but it asserts that property and files possessed by the defendant's former attorney should be addressed by the Board of Professional Responsibility or a civil court. Although we hold that the trial court had jurisdiction relative to evidence presented in the case, we affirm the trial court.

Donald Blair, Jr. v. State of Tennessee
E2001-00947-CCA-R3-PC
Authoring Judge: Judge John Everett Williams
Trial Court Judge: Judge Ray L. Jenkins

Petitioner failed to prove by clear and convincing evidence that he was denied effective assistance of counsel. We affirm the trial court's denial of petitioner's petition for post-conviction relief.

State of Tennessee v. Harold Leonard White
E2000-01888-CCA-R3-CD
Authoring Judge: Judge Robert W. Wedemeyer
Trial Court Judge: Judge Richard R. Baumgartner

The Defendant was arrested in September 1996 for aggravated assault, being a felon in possession of a firearm, and fleeing. His case was not set for trial until July 2000. The Defendant moved for dismissal of the charges on the ground that he had been denied his constitutional right to a speedy trial. The trial court granted the Defendant's motion, and the State now appeals as of right. Concluding that the trial court did not abuse its discretion in finding that the Defendant was prejudiced by the delay, we affirm the judgment of the trial court.

Elisa Cochran v. State of Tennessee
E2000-02795-CCA-R3-PC
Authoring Judge: Judge Robert W. Wedemeyer
Trial Court Judge: Judge R. Steven Bebb

The Petitioner was convicted of felony murder and sentenced to life in prison. This Court affirmed the conviction on direct appeal. The Petitioner subsequently filed a petition for post-conviction relief, alleging that her trial attorney was ineffective. The post-conviction court denied relief, and this appeal ensued. Finding no error, we affirm the judgment of the post-conviction court denying relief.

Cheryl Autry v. James Autry
M2001-01807-COA-R3-CV
Authoring Judge: Judge William B. Cain
Trial Court Judge: Muriel Robinson
This appeal involves the issuance of an order of protection. The parties were married on May 18, 1999. One minor daughter was born to the marriage. On June 10, 2001, there was a struggle between the parties over the child. The appellee sought an order of protection. A hearing was held on June 28, 2001, on Mrs. Autry's petition. Both parties were present at the hearing. After hearing the testimony, the trial court granted Mrs. Autry an order of protection, set child support, and ordered the minor child removed from TennCare insurance coverage.

State of Tennessee v. Miko T. Burl
W2000-02074-CCA-R3-CD
Authoring Judge: Judge David G. Hayes
Trial Court Judge: Judge W. Otis Higgs, Jr.

The Appellant, Miko T. Burl, was convicted by a Shelby County jury of aggravated assault, aggravated burglary, and especially aggravated robbery. Burl received an effective twenty-five year sentence. On appeal, Burl raises the following issues: (1) whether the evidence was sufficient to support the verdicts; (2) whether the trial court erred in not suppressing the photographic identification; (3) whether the trial court erred in rejecting his special jury instruction relating to the suggestiveness of the photo identification procedure; and (4) whether his sentence was proper. After a review of the record, we find Burl's issues are without merit. We find, however, as plain error, that Burl's convictions for both aggravated assault and especially aggravated robbery violate double jeopardy principles. The conviction for aggravated assault is, therefore, vacated. The judgment of the trial court in all other respects is affirmed.

State of Tennessee v. James Hall Schlegel
W2000-02597-CCA-R3-CD
Authoring Judge: Judge Joe G. Riley
Trial Court Judge: Judge Julian P. Guinn
The defendant, James Hall Schlegel, was convicted by a Henry County jury of kidnapping. The trial court imposed a four-year sentence, with one year to be served in confinement and the remainder to be served in the Community Corrections program. On appeal, the defendant raises the following issues: (1) whether the evidence was sufficient to support his conviction; (2) whether the trial court erred by failing to charge the lesser-included offense of false imprisonment; and (3) whether the defendant's sentence was proper. We affirm the judgment of the trial court.

State of Tennessee v. Avis Neal
W2001-00374-CCA-R3-CD
Authoring Judge: Judge David H. Welles
Trial Court Judge: Judge W. Fred Axley
The Defendant, Avis Neal was convicted by a Shelby County jury of one count of rape of a child. After a sentencing hearing, he was sentenced as a Range I standard offender to twenty years in the Department of Correction. In this appeal, the Defendant contends that (1) the trial court erred in admitting testimony concerning statements made by the victim to her mother, (2) the trial court's reasonable doubt instruction was deficient, (3) the State failed to make a proper election, (4) the evidence is insufficient to support a verdict of guilty beyond a reasonable doubt, and (5) the trial court erred in denying the Defendant's motion for new trial due to the Defendant's out of court contact with a juror. We affirm the judgment of the trial court.

State vs. Johnnie Bell, Jr.
E1999-00819-SC-S09-CD
Authoring Judge: Justice E. Riley Anderson
Trial Court Judge: Phyllis H. Miller

State vs. Johnnie Bell, Jr.
E1999-00819-SC-S09-CD
Authoring Judge: Justice E. Riley Anderson
Trial Court Judge: Phyllis H. Miller

State of Tennessee v. Jerry Breeding
M2001-00043-CCA-R3-CD
Authoring Judge: Judge John Everett Williams
Trial Court Judge: Judge Leon C. Burns, Jr.

The defendant appeals his conviction of aggravated robbery for the armed robbery of the Union Bank and Trust in Rickman, Tennessee. We conclude that the defendant did not prove his claim of ineffective assistance of counsel and the record supports the trial court's finding that the defendant personally waived his right to testify. Furthermore, the record reveals that the defendant introduced evidence about an uncharged crime in order to impeach testimony by a witness for the state and, therefore, cannot challenge the introduction of such evidence on appeal. The trial court properly fulfilled its duty to act as a thirteenth juror. In addition, there is sufficient evidence to support the defendant's conviction for aggravated robbery. The judgment of the trial court is affirmed.

Billy Joe Clubbs v. Cresent Manufacturing Co.,
M2001-WC-R3-CV
Authoring Judge: Joe C. Loser, Jr., Sp. J.
Trial Court Judge: C. L. Rogers, 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. In this appeal, the injured employee insists the trial court erred in dismissing his claim for benefits for failure to give timely written notice of his injury. As discussed below, the panel has concluded the judgment should be reversed and the cause remanded for further consideration. Tenn. Code Ann. _ 5-6-225(e) (21) Appeal as of Right; Judgment of the Circuit Court Reversed. Cause Remanded. JOE C. LOSER, JR., SP. J., in which ADOLPHO A. BIRCH, JR., J., and JAMES WEATHERFORD, SR. J., joined. Mary A. Parker, Nashville, Tennessee, for the appellant, Bobby Joe Clubbs D. Andrew Saulters, Nashville, Tennessee, for the appellees, Cresent Manufacturing Company and CNA Insurance Company MEMORANDUM OPINION The employee or claimant, Clubbs, is a supervisor for the employer, Cresent, and familiar with the procedure for reporting injuries. In January or February of 1999, he felt "an intense jolt" when a wrench he was using slipped. The claimant did not report the occurrence to the employer. He testified that it is customary, though not encouraged, at Cresent not to make written report of a minor injury when the employee believes the injury will resolve itself quickly. His pain quickly subsided and he finished his shift and continued working without pain. At the time, the claimant did not realize he had suffered an injury. Seven to ten days later, he began experiencing severe headaches. However, he had suffered headaches in the past and was not alarmed by it. He began visiting Dr. Sid King, whom he had seen from time to time for other headaches. When conservative care did not relieve the headaches and tests revealed a spur, Dr. King referred the claimant to a neurologist, Dr. Mary Ellen Clinton, whom the claimant first saw on March 17, 1999. On the same day, Dr. Clinton advised him that she thought the condition was the result of the wrench slipping episode at work. The claimant retained an attorney, who, on April 2, 1999, reported the injury to the employer by letter. Dr. Ray Hester, to whom the claimant was referred by Dr. Clinton, diagnosed a herniated cervical disc, which he repaired surgically. Dr. Hester opined at trial that the injury was work related and assigned a permanent impairment rating. The claimant was totally disabled to work for a period of time and has incurred medical expenses. Following a trial on the merits, the trial court found the claimant, without a reasonable excuse, had failed to give timely notice of his injury. Appellate review of findings of fact is de novo upon the record of the trial court accompanied by a presumption of correctness of the findings, unless the preponderance of the evidence is otherwise. Tenn. Code Ann. _ 5-6-225(e)(2). Conclusions of law are subject to de novo review on appeal without any presumption of correctness. Nutt v. Champion Intern. Corp., 98 S.W.2d 365, 367 (Tenn. 1998). This tribunal is not bound by the trial court's findings but instead conducts an independent examination of the record to determine where the preponderance lies. Galloway v. Memphis Drum Serv., 822 S.W.2d 584, 586 (Tenn. 1991). Where the trial judge has seen and heard the witnesses, especially if issues of credibility and weight to be given oral testimony are involved, considerable deference must be accorded those circumstances on review, because it is the trial court that had the opportunity to observe the witnesses' demeanor and to hear the in-court testimony. Long v. Tri-Con Ind., Ltd., 996 S.W.2d 173, 178 (Tenn. 1999). The appellate tribunal, however, is as well situated to gauge the weight, worth and significance of deposition testimony as the trial judge. Walker v. Saturn Corp., 986 S.W.2d 24, 27 (Tenn. 1998). Immediately upon the occurrence of an injury, or as soon thereafter as is reasonable and practicable, an injured employee must, unless the employer has actual knowledge of the accident, give written notice of the injury to his employer. Benefits are not recoverable from the date of the accident to the giving of such notice, and no benefits are recoverable unless such written notice is given within 3 days after the injurious occurrence, unless the injured worker has a reasonable excuse for the failure to give the required notice. The notice may be given by the employee or his representative. Tenn. Code Ann. _ 5-6-21. The reasons for the 3 day statutory notice requirement are (1) to give the employer an opportunity to make an investigation while the facts are accessible, and (2) to enable the employer to provide timely and proper treatment for the injured employee. McCaleb v. Saturn Corp., 91 S.W.2d 412, 415 (Tenn. 1995). Whether or not the excuse offered by an injured worker for failure to give timely written notice is sufficient depends on the particular facts and circumstances of each case. A. C. Lawrence Leather Co. v. Britt, 22 Tenn. 444, 454, 414 S.W.2d 83, 834 (1967). The presence or absence of prejudice to the employer is a proper consideration. Marshall Construction Co. v. Russell, 163 -2-

State of Tennessee v. Derrann William Estill
M2001-01859-CCA-R3-CD
Authoring Judge: Judge Robert W. Wedemeyer
Trial Court Judge: Judge Lee Russell

The Defendant was convicted of theft of property valued between $1,000 and $10,000, a Class D felony, and criminal trespass. The trial court sentenced him as a Range II, multiple offender to six years incarceration for the theft conviction and to thirty days incarceration for the criminal trespass conviction, with the sentences to be served concurrently. The Defendant argues that insufficient evidence was presented at trial to convict him of theft or criminal trespass. We affirm the judgment of the trial court.

Randall Bilbrey v. Gary Worley
M2003-01376-COA-R3-CV
Authoring Judge: Judge William B. Cain
Trial Court Judge: Vernon Neal
This is a landlord/tenant case involving abandonment and surrender by the tenant of the leased premises and whether or not the surrender was accepted by the landlord so as to prevent the landlord from collecting rents for the unexpired term of the lease. The chancellor first held for the landlord on the issue but thereafter came to believe himself bound by an unreported decision of this court and reversed his position to hold for Appellee. We find the first judgment of the chancellor to have been correct and reinstate his original judgment.

State of Tennessee v. Khanh Le
W1998-00637-CCA-R3-CD
Authoring Judge: Judge Norma McGee Ogle
Trial Court Judge: Judge W. Fred Axley
On November 10, 1997, the appellant, Khanh V. Le, was convicted by a jury in the Shelby County Criminal Court of one count of first degree premeditated murder. The trial court sentenced the appellant to a term of life imprisonment in the Tennessee Department of Correction. The appellant filed an appeal, and this court affirmed the judgment of the trial court on March 9, 2000.  Accordingly, the appellant filed an application for permission to appeal to our supreme court pursuant to Tenn. R. App. P. 11. The supreme court granted the appellant’s application for the sole purpose of remanding the case to this court for reconsideration in light of the recent case of State v. Ely, 48 S.W.3d 710 (Tenn.), cert. denied, __ U.S. __, 122 S. Ct. 408 (2001). Upon reconsideration, we reverse the judgment of the trial court and remand this case for a new trial.

State of Tennessee v. Khanh Le - Concurring
W1998-00637-CCA-R3-CD
Authoring Judge: Judge Thomas T. Woodall
Trial Court Judge: Judge W. Fred Axley
Consistent with my conclusion when this case was originally before our court, I concur that it was reversible error for the trial court to not charge the jury with the lesser-included offense of second degree murder. Along with Judge Welles, I disagree with the statement in the lead opinion by Judge Ogle that “a failure to instruct a jury on lesser-included offenses will only be found harmless beyond a reasonable doubt under the circumstances presented” in State v. Williams, 977 S.W.2d 101, 106 (Tenn. 1998). There may be other circumstances, not presently before our court, where the erroneous failure to charge a lesser-included offense would be harmless error.

State of Tennessee v. LaKeisha Jones
W2000-02962-CCA-R3-CD
Authoring Judge: Judge Joseph M. Tipton
Trial Court Judge: Judge Mark Agee
A Haywood County Circuit Court jury convicted the defendant, Lakeisha Jones, of second degree murder, and the trial court sentenced her as a violent offender to fifteen years in the Tennessee Department of Correction. The defendant appeals, contending that the evidence is insufficient to support her conviction and that the trial court failed to instruct the jury as to mutual combat. We affirm the judgment of conviction.

Vances Smith vs. Warden Fred Figueroa
W2001-01572-COA-R3-CV
Authoring Judge: Judge David R. Farmer
Trial Court Judge: Jon Kerry Blackwood
This is an appeal from the trial court's order dismissing a petition for writ of certiorari. We affirm.

State of Tennessee v. Jessie James Austin
W2001-00120-CCA-R3-CD
Authoring Judge: Judge Joseph M. Tipton
Trial Court Judge: Judge William B. Acree

The defendant, Jessie James Austin, appeals as of right his convictions by a Weakley County Circuit Court jury for two counts of aggravated assault, a Class C felony. The trial court sentenced him as a Range III, persistent offender to twelve years in the Department of Correction for each count to be served concurrently. The defendant contends that the evidence is insufficient to prove either count of aggravated assault and that the trial court should have instructed the jury on the lesser included offense of reckless aggravated assault. We affirm the trial court's judgments of conviction.