Samuel David Land v. State of Tennessee
M2003-00468-CCA-R3-PC
Authoring Judge: Judge Thomas T. Woodall
Trial Court Judge: Judge Timothy L. Easter

Petitioner, Samuel David Land, appeals from the trial court's dismissal of his petition for post-conviction relief. Petitioner was convicted by a jury for felony evading arrest and driving on a revoked license, second offense, a misdemeanor. For his felony conviction, Petitioner was sentenced as a career offender to twelve years in confinement. Petitioner was sentenced to 11 months and 29 days for the misdemeanor conviction. The sentences were ordered to be served concurrently with each other, but consecutive to a six-year sentence that Petitioner was already serving as a result of a probation violation in a prior case. This Court affirmed Petitioner's convictions on direct appeal. State v. Land, 34 S.W.3d 516 (Tenn. Crim. App. 2000). Following an evidentiary hearing, the trial court denied post-conviction relief. Having reviewed the record on appeal, the applicable law, and the briefs of the parties, we affirm the judgment of the trial court.

State of Tennessee v. William Burt Smith
M2002-02988-CCA-R3-CD
Authoring Judge: Judge John Everett Williams
Trial Court Judge: Judge Buddy D. Perry

The defendant was found guilty of one count of selling a Schedule II controlled substance, a Class C felony, and sentenced to eight years in the Tennessee Department of Correction. The defendant contends on appeal that the trial court erred in not appointing another attorney and requiring the defendant to proceed pro se at the motion hearing and trial after several attorneys were allowed to withdraw. We conclude that the defendant has failed to provide this Court with a record of all relevant court dealings. Therefore, we presume that the whole record justifies the trial court's decisions. The judgment of the trial court is affirmed.

Gregory Lynn Hollingsworth, pro se, v. State of Tennessee
M2003-01384-CCA-R3-CO
Authoring Judge: Judge Robert W. Wedemeyer
Trial Court Judge: Judge Robert L. Holloway

The Petitioner, Gregory Lynn Hollingsworth, 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. The Petitioner fails to assert a cognizable claim for which habeas corpus relief may be granted. Accordingly, the State's motion is granted and the judgment of the trial court is affirmed.

Corey A. Kennerly, pro se., v. Kevin Meyers, Warden and State of Tennessee
M2003-02270-CCA-R3-HC
Authoring Judge: Judge David H. Welles
Trial Court Judge: Judge Robert L. Holloway

The Petitioner, Corey A. Kennerly, 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. The Petitioner fails to assert a cognizable claim for which habeas corpus relief may be granted. Accordingly, the State's motion is granted and the judgment of the trial court is affirmed.

Yourl Lee Bass, Jr., pro se v. State of Tennessee
M2003-01235-CCA-R3-PC
Authoring Judge: Judge Robert W. Wedemeyer
Trial Court Judge: Judge Jane W. Wheatcraft

The Petitioner, Yourl Lee Bass, Jr., appeals the trial court's denial of his petition for post-conviction 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. The Petitioner fails to assert a colorable claim for post-conviction relief. Accordingly, the State's motion is granted and the judgment of the trial court is affirmed.

Steven Loach, pro se. v. Kevin Myers, Warden
M2003-02085-CCA-R3-HC
Authoring Judge: Judge Robert W. Wedemeyer
Trial Court Judge: Judge Robert L. Holloway

The Petitioner, Steven T. Loach, 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. The Petitioner fails to assert a cognizable claim for which habeas corpus relief may be granted. Accordingly, the State's motion is granted and the judgment of the trial court is affirmed.

James Wohlfahrt, et al., v. Arlene Scavuzzo
W2002-02641-COA-R3-CV
Authoring Judge: Judge David R. Farmer
Trial Court Judge: Judge Jon Kerry Blackwood

Plaintiffs’ insurer appeals award of benefits to Plaintiffs under Plaintiffs’ uninsured/underinsured motorist policy. We affirm.
 

Judith Lynn Silvey v. Darrell C. Silvey
E2003-00586-COA-R3-CV
Authoring Judge: Presiding Judge Houston M. Goddard
Trial Court Judge: Chancellor W. Frank Brown, III

In this divorce case the Appellant, Darrell C. Silvey, contends that the Trial Court erred in its allocation of property between himself and the Appellee, Judith Lynn Silvey. We modify the judgment of the Trial Court, affirm as modified and remand. Costs of this appeal are adjudged equally against Mr. and Ms. Silvey.

Arnold Carter v. State of Tennessee
E2003-02887-CCA-R3-PC
Authoring Judge: Presiding Judge Gary R Wade
Trial Court Judge: Judge R. Steven Bebb

The petitioner, Arnold Carter, appeals the trial court's dismissal of his petition for writ of habeas corpus. The State has filed a motion requesting that this Court dismiss the appeal or, in the alternative, affirm the trial court's denial of relief pursuant to Rule 20, Rules of the Court of Criminal Appeals. The petitioner has not established a valid claim for habeas corpus relief. Accordingly, the State's motion is granted and the judgment of the trial court is affirmed.

Marcina Jelks v. The Travelers Insurance Co.
W2003-00927-SC-WCM-CV
Authoring Judge: Joe C. Loser, Jr., Sp. J.
Trial Court Judge: George R. Ellis, Chancellor
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 employer questions the trial court's findings as to permanency and extent of vocational disability. As discussed below, the panel has concluded the evidence fails to preponderate against the findings of the trial court. Tenn. Code Ann. _ 5-6-225(e) (22 Supp.) Appeal as of Right; Judgment of the Chancery Court Affirmed JOE C. LOSER, JR., SP. J., in which JANICE M. HOLDER, J., and JOE H. WALKER, III, SP. J., joined. Kevin J. Youngberg and Zach C. Luttrell, Allen, Kopet & Associates, Jackson, Tennessee, for the appellant, The Travelers Insurance Company David Hardee, Hardee & Martin, Jackson, Tennessee, for the appellee, Marcina Jelks MEMORANDUM OPINION The employee or claimant, Ms. Jelks, initiated this civil action to recover workers' compensation benefits for a work related injury. The Travelers Insurance Company, insurer of the employer, denied liability. After a trial on the merits, the trial court resolved the issues in favor of the claimant and awarded, inter alia, permanent partial disability benefits based on 25 percent to the body as a whole. Travelers has appealed. 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 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 which 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). 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). The claimant was working at a food processing plant on November 17, 1999, when she slipped and fell on a wet floor, injuring her low back, neck, right knee and right hip. She had immediate pain, which persists. She was conservatively treated by Dr. Keith Douglas Nord for a cervical and lumbo-sacral back strain. Dr. Nord recommended restricted duty, ordered a nerve conduction study and made a return appointment. The doctor continued seeing the claimant at least until January 15, 21, but testified that she had long since reached maximum medical improvement. He estimated her permanent impairment to be none for the back and neck injury, but conceded she was permanently impaired in her right knee and shoulder. On March 7, 21, Ms. Jelks visited another orthopedic surgeon, Dr. Robert Barnett, who had evaluated her following a previous injury, to be evaluated for her present injury. As part of his examination, Dr. Barnett viewed x-rays taken following the November 1999 accident, compared them with earlier x-rays and determined that there had been anatomic changes in the claimant's low back. Based on his findings, Dr. Barnett assigned an impairment rating of 5 percent to the whole person for the low back injury. The injury was superimposed on her previous injury. The appellant first contends there should be no award of permanent disability benefits because the claimant merely suffered increased pain with no anatomic change, relying solely on Dr. Nord's testimony that there was no anatomic change in the claimant's neck or low back. The argument ignores the doctor's testimony concerning the claimant's right knee and right shoulder. It ignores Dr. Barnett's testimony altogether. The trial court did not err in considering Dr. Barnett's testimony that there was an anatomic change. Moreover, the argument overlooks the long standing principle that an employer takes an employee as the employee is, with all defects and diseases, and assumes the risk of having a weakened condition aggravated by an injury which might not affect a normal person. Modern Upholstered Chair Co. v. Russell, 518 S.W.2d 519, 522 (Tenn. 1974). From a fair interpretation of Dr. Barnett's testimony, the injury aggravated and worsened a pre-existing condition. The argument is without merit. The appellant next argues the trial court erred in awarding the equivalent of five times Dr. Barnett's medical impairment rating without making specific findings of fact. For injuries occurring -2-

Ernest Tarpley, et al, v. Bert Hornyak, et al.
M2002-01466-COA-R3-CV
Authoring Judge: Judge Patricia J. Cottrell
Trial Court Judge: Chancellor Charles K. Smith

Landowners sued to abate a nuisance claiming that a concrete causeway, built over a creek by an adjoining landowner, caused water to flood their property. After hearing from one witness, the trial judge discouraged further proof and instead chose to visit the plaintiffs' land at the next flooding. He subsequently found the causeway to be a nuisance and ordered it removed. We reverse because trial court based its decision solely on the basis of the judge's personal observations.

State of Tennessee v. Jacob Campbell
M2003-00597-CCA-R3-CD
Authoring Judge: Judge Robert W. Wedemeyer
Trial Court Judge: Judge J. Randall Wyatt, Jr.

A Davidson County jury convicted the defendant, Jacob Edward Campbell, of premeditated first degree murder, felony murder, and robbery, and the trial court merged the two murder convictions into a single offense of first degree murder. Thereafter, the jury sentenced the defendant to life imprisonment with the possibility of parole for first degree murder, and the trial court imposed a ten-year sentence for the robbery conviction to be served consecutively to the defendant's life sentence. On appeal, the defendant contends that: (1) the evidence was insufficient to support his convictions; (2) the trial court erred by admitting into evidence crime scene photographs of the murder victim; (3) the trial court erred by admitting into evidence testimony regarding pills found on the defendant when he was arrested; (4) the trial court erred by allowing a State's witness to read to the jury a summary of the witness's pre-trial statement to police; (5) the trial court erred by denying the defendant's request to introduce a prior recorded statement of an unavailable witness to impeach a State's witness; (6) the trial court erred by not clarifying its jury charge that the jury could not consider evidence introduced at trial concerning the co-defendant; and (7) the trial court erred by ordering that the sentence for robbery run consecutively to the defendant's life sentence. Finding no reversible error, we affirm the trial court's judgments.

Thurman Pete Rolland, pro se v. State of Tennessee
M2002-02709-CCA-R3-CO
Authoring Judge: Judge Robert W. Wedemeyer
Trial Court Judge: Judge Cheryl A. Blackburn

The Petitioner, Thurman Pete Rolland, appeals the trial court's dismissal of his third petition for post conviction 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. The Petitioner had no authority to file a third petition for post-conviction relief, and the statute of limitations had expired. Accordingly, the State's motion is granted and the judgment of the trial court is affirmed.

Quincy Henderson v. State of Tennessee
W2002-02541-CCA-R3-PC
Authoring Judge: Judge J. Curwood Witt, Jr.
Trial Court Judge: Judge W. Otis Higgs, Jr.

The petitioner, Quincy Henderson, appeals the Shelby County Criminal Court’s dismissal of his post-conviction petition, in which he claimed that his second degree murder conviction was constitutionally infirm because of ineffective assistance of trial counsel. Upon our review of the record, the parties’ briefs, and the applicable law, we affirm the denial of post-conviction relief.

State of Tennessee v. Thelisa Emery and Maurice Emery
W2002-02698-CCA-R3-CD
Authoring Judge: Judge J. Curwood Witt, Jr.
Trial Court Judge: Judge Clayburn L. Peeples

The defendants, Thelisa Emery and Maurice Emery, sister and brother, were each convicted in a joint jury trial of possession with intent to sell .5 grams or more of cocaine, possession of marijuana, and possession of drug paraphernalia. On appeal, Thelisa Emery claims that the convicting evidence is insufficient and that the trial court erred in not severing the defendants’ trials, in allowing testimony about Thelisa Emery’s use of cocaine, in allowing evidence of her prior sale of cocaine, and in instructing the jury as to her guilt via criminal responsibility for the acts of Maurice Emery. Maurice Emery raised some of the same issues, but because he failed to file a timely motion for new trial, appellate review of his convictions is limited to the sufficiency of the convicting evidence. Discerning no reversible error with respect to either defendant, we affirm the judgments of the trial court.

Odean Cooper v. State of Tennessee
W2003-01518-CCA-R3-PC
Authoring Judge: Judge Joe G. Riley
Trial Court Judge: Judge Joseph H. Walker, III

The petitioner appeals the lower court’s denial of his post-conviction relief petition following his guilty plea to possession of less than .5 grams of cocaine with intent to deliver. On appeal, the petitioner contends: (1) he received ineffective assistance of counsel; and (2) he did not knowingly and voluntarily enter his guilty plea. We affirm the judgment of the post-conviction court.

State of Tennessee v. James Stacy Carroll
W2003-01182-CCA-R3-CD
Authoring Judge: Judge J. Curwood Witt, Jr.
Trial Court Judge: Judge C. Creed McGinley

The defendant, James Stacy Carroll, appeals from his Carroll County Circuit Court conviction of driving a vehicle in violation of a motor vehicle habitual offender order. He challenges the sufficiency of the convicting evidence. We hold that the evidence is sufficient to support the conviction and affirm the conviction.

State of Tennessee v. Lenzo Sherron A/K/A Salaam Shabazz
W2003-01222-CCA-R3-CD
Authoring Judge: Judge John Everett Williams
Trial Court Judge: Judge Lee Moore

The defendant was convicted of aggravated robbery, a Class B felony, and sentenced to ten years as a standard offender. The defendant has filed a pro se appeal of right of his conviction, posing the following issues for our review: 1) Whether the evidence was sufficient beyond a reasonable doubt to support the defendant’s conviction for aggravated robbery; 2) Whether the State improperly withheld exculpatory and impeachment evidence; and 3) Whether the trial court failed to investigate a conflict of interest before appointing new counsel. After careful review, we affirm the conviction.

Ricco Saine v. State of Tennessee
W2002-02805-CCA-R3-PC
Authoring Judge: Judge James Curwood Witt, Jr.
Trial Court Judge: Judge W. Otis Higgs, Jr.

Aggrieved that the lower court denied post-conviction relief following an evidentiary hearing, the petitioner, Ricco Saine, appeals and claims that his aggravated burglary conviction resulted from ineffective assistance of counsel and an involuntary guilty plea. We affirm the denial of post-conviction relief.

Anthony D. McDaniel, pro se., v. Bruce Westbrooks
W2003-00801-CCA-R3-CO
Authoring Judge: Judge John Everett Williams
Trial Court Judge: Judge Joseph H. Walker, III

The Petitioner, Anthony D. McDaniel, 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. The Petitioner fails to assert a cognizable claim for which habeas corpus relief may be granted. Accordingly, the State's motion is granted and the judgment of the trial court is affirmed.

State of Tennessee v. Christopher Michael Schmidt
W2003-02121-CCA-R3-CD
Authoring Judge: Judge Alan E. Glenn
Trial Court Judge: Judge Jon K. Blackwood

This matter is before the Court upon the State’s motion to affirm the judgment of the trial court pursuant to Rule 20, Rules of the Court of Criminal Appeals. The Appellant, Christopher Michael Schmidt, appeals the trial court’s denial of a writ of habeas corpus. The only issue for this Court’s review is whether the trial court committed error by its order of transfer of the Appellant to the temporary custody of the State of Delaware. Finding no error committed by the trial court, this Court concludes that the judgment of the trial court should be affirmed.

Roger Raymond Desmarais v. The Bailey Company,
M2002-02637-WC-R3-CV
Authoring Judge: Joe C. Loser, Jr., Sp. J.
Trial Court Judge: C. K. Smith, Chancellor
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 employee insists the trial court erred in dismissing his claim. As discussed below, the panel has concluded the evidence fails to preponderate against the findings of the trial court. Tenn. Code Ann. _ 5-6-225(e) (22 Supp.) Appeal as of Right; Judgment of the Chancery Court Affirmed JOE C. LOSER, JR., SP. J., in which JANICE M. HOLDER, J., and JAMES L. WEATHERFORD, SR. J., joined. Michael W. Ferrell, Mt. Juliet, Tennessee, for the appellant, Roger Raymond Desmarais D. Andrew Saulters, Nashville, Tennessee, for the appellee, The Bailey Company Paul G. Summers, Attorney General & Reporter, and E. Blaine Sprouse, Assistant Attorney General, Nashville, Tennessee, for the appellee, Second Injury Fund MEMORANDUM OPINION The employee or claimant, Mr. Desmarais, initiated this civil action to recover workers' compensation benefits. The employer, The Bailey Company, and the Second Injury Fund denied liability. After a trial on the merits, the trial court dismissed the claim for insufficient proof of a compensable injury by accident. The claimant has appealed. 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 record to determine where the preponderance lies. Galloway v. Memphis Drum Serv., 822 S.W.2d 584, 586 (Tenn. 1991). The claimant began working for the employer in January 2 as a brick mason. He alleges that he felt back pain at work on April 24, 2, while lifting a cover on a forklift. There were no witnesses to the incident. The claimant received treatment from two different doctors, but continues to have back pain. Medical restrictions prevent him from returning to work for the employer. The claimant has a history of back problems. He suffered an injury in 1985, while working for another employer in Massachusetts. His workers' compensation claim was settled for $16,.. In May 1999, he suffered a second back injury for which he did not seek workers' compensation benefits. Diagnostic testing revealed a large herniated disc at L5-S1 following the 1999 injury. The record contains conflicting medical testimonyas to whether the claimant's present injury is work related. Dr. Thomas O'Brien, who treated the claimant, reported that the claimant did not inform him of the claimant's injuries of 1985 or 1999, when the medical history was taken. In addition, after comparing an MRI that was ordered in May 1999 with one ordered by Dr. Daniel McHugh in May 2, Dr. O'Brien testified that the reports of the MRIs were essentially the same and that there was no anatomic change revealed by comparing the two reports. Dr. David Gaw, an examining physician, opined that the claimed injury probably was causally related to the work the claimant was performing for the employer. However, Dr. Gaw was unaware of the claimant's 1999 injury. Moreover, when Dr. Gaw compared the two MRI reports, he agreed there was no significant difference between the two. Dr. Gaw also conceded that there were inconsistencies in the history given by the claimant. The claimant contends the trial court should have found his injury to be work related based upon medical testimony by Dr. Gaw that there could be some undetected nerve damage. The employer takes the employee with all pre-existing conditions, and cannot escape liability when the employee, upon suffering a work-related injury, incurs disability far greater than if the employee had not had the pre-existing conditions; but if work aggravates a pre- existing condition merely by increasing pain, there is no injury by accident. Kellerman v. Food Lion, 929 S.W.2d 333, 335 (Tenn. 1996) To be compensable, the pre-existing condition must be advanced, there must be an anatomic change in the pre-existing condition, or the employment must cause an actual progression of the underlying disease. Sweat v. Superior Industries, Inc., 966 S.W.2d 31, 32 (Tenn. 1998). From our independent examination of the record, the evidence fails to preponderate against the trial court's finding that the claimant did not suffer a compensable injury while working for the employer, as claimed. The finding was largely based on the claimant's lack of credibility. The claimant further contends the trial court erred in rejecting his testimony and accepting the testimony of medical experts that he gave them an incomplete history. The trial court explicitly found the claimant to be lacking in credibility. Where the trial judge has seen and heard the -2-

Ralph Sasser v. Quebecor Printing,(USA) Corp., D/B/A Quebecor Printing Clarkesville
M2003-00287-COA-R3-CV
Authoring Judge: Judge Holly M. Kirby
Trial Court Judge: Judge Ross H. Hicks

This is a case involving an alleged hostile work environment based on disability. The employee worked in the maintenance department of a large printing facility. He had an on-the-job accident which resulted in the amputation of his leg. To accommodate his disability, the employer created a clerical position for him. The employee's work space was a "community desk" located in the maintenance area, an area to which numerous employees had regular access. The employee reported to the employer several incidents of alleged harassment, such as grease under the desk, lunch residue being left on the desk, dirty footprints in the desk's chair, and his computer monitor defaced with a profane statement. The employer moved the employee to a private office, and there were no further incidents. The employee filed a complaint alleging, inter alia, a hostile work environment based on disability, his amputated leg. The trial court granted summary judgment in favor of the employer. We affirm, finding that the incidents do not amount to harassment, and that there is no evidence that the conduct was either directed at the employee or linked to his disability.

In Re: The Estate of Ollie McCord; Joann Heinrich v. Helen Brooks
M2003-00175-COA-R3-CV
Authoring Judge: Judge Holly M. Kirby
Trial Court Judge: Judge Frank G. Clement, Jr.

This is a will contest. The will disinherited two of the decedent's five living children and the one child who had predeceased her. One of the disinherited children contested the will, asserting that the decedent did not have the mental capacity to execute a valid will. Four years prior to the will's execution, the decedent had been diagnosed with dementia, a progressive mental disorder. Based on witness testimony, the trial court found that, on the date the will was executed, the decedent had the mental capacity to execute the will. The will was admitted into probate. The will contestant appeals. In deference to the trial court's determinations of credibility, and in light of the weight of the evidence demonstrating capacity, we affirm.

State of Tennessee v . Sandy Marie McKay
M2002-03066-CCA-R3-CD
Authoring Judge: Judge David H. Welles
Trial Court Judge: Judge Cheryl A. Blackburn

The defendant, Sandy Marie McKay, pled guilty to attempted aggravated child neglect, a Class B felony. After a hearing, the trial court sentenced the defendant as a Range I standard offender to nine years in the Department of Correction. The defendant now appeals, contesting both the length and manner of service of her sentence. We affirm the judgment of the trial court.