State of Tennessee v. Janice Carol Biskner
E2000-01440-CCA-R3-CD
Authoring Judge: Judge Thomas T. Woodall
Trial Court Judge: Judge Rebecca J. Stern

Defendant was convicted of driving under the influence ("DUI"), fourth or subsequent offense, driving while license revoked, and child endangerment. In this appeal, Defendant challenges all convictions on the ground that the trial court's refusal to bifurcate the trial proceedings violated her right to a fair trial. Defendant also argues that recently amended Tennessee Code Annotated section 55-10-403(a)(1) is unconstitutional and that her sentence is excessive. After a review of the record and applicable law, we reverse Defendant's convictions and remand this case for a new trial.

12-98-044-CC
12-98-044-CC
Trial Court Judge: A. Andrew Jackson

In Re: D.M.S., G.H.S., and T.M.S.
M2004-02584-COA-R3-PT
Authoring Judge: Judge William B. Cain
Trial Court Judge: Betty K. Adams
Mother appeals the Davidson County Juvenile Court's Order Terminating her parental rights to three children, T.M.S., and D.M.S. and G.H.S. Father of D.M.S. challenges the trial court's termination of his parental rights. We affirm the decision of the trial court in all respects.

State of Tennessee v. Nordell Buggs
M2000-02759-CCA-R3-CD
Authoring Judge: Judge John Everett Williams
Trial Court Judge: Judge Carol L. Soloman

Defendant contends that the evidence was insufficient to support the convictions of attempted burglary and possession of burglary tools. We affirm the judgments from the trial court.

State of Tennessee v. Rita Davis
M2000-03227-CCA-R3-CD
Authoring Judge: Judge David G. Hayes
Trial Court Judge: Judge W. Charles Lee

The Appellant, Rita Davis, pled guilty to one count of failure to appear, a class E felony, and was sentenced as a career offender to six years confinement. No direct appeal of her sentence was taken. Davis then filed a petition for post-conviction relief, requesting (1) a delayed direct appeal of her sentence; and (2) that her conviction be vacated upon grounds: (a) that her guilty plea was involuntarily entered based upon ineffective assistance of counsel; and (b) that her conviction was obtained in violation of "constitutional due process rights."

After review, we find that the post-conviction court's consolidation of issue (1), granting the direct appeal of her sentence, and issue (2), the collateral review of Davis' challenge to her conviction through post-conviction process, conflicts with our previous holding in Gibson v. State, 7 S.W.3d 47 (Tenn. Crim. App. 1998). Thus, consistent with Gibson, we reverse and remand issue (2) with instructions that Davis' collateral attack of her conviction be dismissed without prejudice. With respect to issue (1), we grant review of Davis' six-year sentence. After review, we find this issue is without merit and affirm her sentence as imposed.

David Kee v. Unimin Corporation
W2000-02673-WC-R3-CV
Authoring Judge: Joe C. Loser, Jr., Sp. J.
Trial Court Judge: Julian P. Guinn, 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. This is an action by an injured employee to recover workers' compensation benefits for three separate claimed injuries by accident occurring at different times. After a trial on the merits, the trial judge dismissed the claim based on an arm injury for insufficient proof that it occurred at work, but awarded, inter alia, permanent partial disability benefits based on 4 percent to the body as a whole for the injuries to the neck and back. The employer has appealed contending (1) the evidence preponderates against the trial court's finding that the employee's claimed neck injury is compensable and (2) the trial court erred in awarding permanent disability benefits for the neck injury and for an admittedly compensable low back injury. As discussed below, the panel has concluded the judgment should be affirmed. Tenn. Code Ann. _ 5-6-225(e) (2) Appeal as of Right; Judgment of the Circuit Court Affirmed JOE C. LOSER, JR., SP. J., in which JANICE M. HOLDER, J., and W. MICHAEL MALOAN, SP. J., joined. Richard C. Manglesdorf, Jr., and Thomas J. Dement, II, Nashville, Tennessee, for the appellant, Unimin Corporation Terry J. Leonard, Camden, Tennessee, for the appellee, David Kee MEMORANDUM OPINION The employee or claimant, David Kee, is 59 years old with a high school education and no vocational training. He worked for Genesco for one year after graduating from high school and worked for Unimin, formerly Hardy Sand Company, for 37 years, advancing to the position of shift production and shipping supervisor until he was terminated on February 24, 1999. One of the claimed injuries is to the left arm. It appears from the record, as the trial court found, that the arm injury was an old one, not related to work, although a manifestation of it occured at work on or about April 21, 1998. The testimony of Dr. Lowell F. Stonecipher clearly supports that finding. It also appears from the record that the claim should fail for lack of written notice. No issue is raised in the appellee's brief concerning the trial court's disallowance of benefits for the arm injury. As Dr. Joseph C. Boals, III, understated in his deposition, theclaimant's history is convoluted and confusing. It appears from the record that an injury occurred at work on April 28, 1998, when the claimant slipped on oil and fell,, injuring his lower back. The employer does not contest the compensability of the back injury, but insists it did not cause any permanent disability. The treating physician, Dr. John Neblett, diagnosed acute lumbar sprain with nerveroot irritation at L5-S1 on the left side. The injury was superimposed on preexisting degenerative arthritis. Conservative care was provided by Dr. Neblett. Dr. Boals, to whom the claimant was referred by his attorney for evaluation, estimated his permanent impairment at 1 percent to the whole body. The claimant testified that he fell down a flight of stairs at work on Feb ruary 22, 1999, landing on his neck and injuring it. There is conflicting testimony as to whether the employer had notice of it. A supervisor at Unimin, David Hayes, was nearby when it happened. Hayes testified that he heard a noise and saw the claimant picking himselfup. When he asked the claimant if he was hurt, the claimant said something, then walked away, according to the testimony of Hayes. The claimant believes the supervisor saw more than he is telling. No written report was made. Dr. Neblett diagnosed acute neck sprain and exacerbation of preexisting arthritis. Dr. Boals estimated the claimant's permanent impairment for all three injuries at 33 percent. The trial judge found the employee to be a credible witness and awarded permanent partial disability benefits on the basis of 4 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 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). The appellant first argues the neck injury did not happen. The argument overlooks the -2-

State of Tennessee v. Kenneth Lee Pipkin
M1999-00870-CCA-OT-PC
Authoring Judge: Judge Jerry L. Smith
Trial Court Judge: Judge Robert E. Burch

A Stewart County grand jury indicted the defendant on one count of first degree murder involving Marilyn June Adkins' death. Following a jury trial, he stood convicted of second degree murder. For this offense he received fifteen years as a Range I, standard offender. Thereafter the defendant elected not to file a new trial motion and waived his right to bring a direct appeal. Nevertheless, he later filed a post-conviction petition alleging five grounds for relief. Finding that trial counsel had provided ineffective assistance in advising the defendant regarding waiving direct appeal, this Court allowed him to file a delayed appeal. See Kenneth Lee Pipkin v. State, No. 01C01-9608-CC-00328, 1997 WL 749441 at *1, 8-9 (Tenn. Crim. App. at Nashville, Dec. 4, 1997.) As no new trial motion had been brought, the defendant was also allowed to file such motion. See id. at *9. Through this motion the defendant unsuccessfully alleged that there was insufficient evidence to support his conviction. He now brings the same issue before this Court. However, after reviewing the matter, we find it to lack merit and affirm the action of the lower court.

State of Tennessee v. Pamela Sue King
M2000-00148-CCA-R3-CD
Authoring Judge: Judge Jerry L. Smith
Trial Court Judge: Judge Seth W. Norman

The defendant, Pamela Sue King, was indicted by a Davidson County Grand Jury on one count of first degree premeditated murder. She was subsequently convicted by a jury of second degree murder, and was sentenced by the trial court to twenty-three years incarceration at 100% as a violent offender. Following the denial of her motion for a new trial, she filed a timely appeal to this court, raising two issues: (1) whether the evidence was sufficient to support her conviction for second degree murder; and (2) whether the trial court erred in allowing the jury to use a dictionary in its deliberations. After a review of the record, we affirm the judgment of the trial court.

State of Tennessee v. Marquis Day
W2000-01618-CCA-R3-CD
Authoring Judge: Special Judge Cornelia A. Clark
Trial Court Judge: Judge John Franklin Murchison

The defendant appeals his convictions for first degree murder, conspiracy to commit first degree murder, tampering with or fabricating evidence and unlawful possession of a weapon. He challenges the sufficiency of the convicting evidence based on accomplice testimony, the issue whether Brian Morrow was in fact an accomplice, the admission of graphic photographs of the decedent, and the actions of the trial judge as thirteenth juror. We affirm the judgment of trial court.

Thomas T. Cummings v. State of Tennessee
W2000-02813-CCA-R3-PC
Authoring Judge: Judge Norma McGee Ogle
Trial Court Judge: Judge James C. Beasley, Jr.

The petitioner, Thomas T. Cummings, pled guilty in the Shelby County Criminal Court to second degree murder. Pursuant to a negotiated plea agreement, he was sentenced as a violent offender to twenty-five years incarceration, to be served at one hundred percent (100%), in the Tennessee Department of Correction. The petitioner timely filed for post-conviction relief, alleging that he received ineffective assistance of counsel and that his plea was not knowing and voluntary because his attorney erroneously advised him that he would be required to serve only eighty-five percent (85%) of his sentence before becoming eligible for parole and that his sentence could be reduced an additional fifteen percent (15%) for "good behavior." On appeal, the petitioner challenges the post-conviction court's conclusion that he received effective assistance of counsel. After a review of the record, we affirm the judgment of the post-conviction court.

Javier Soto-Hurtado v. State of Tennessee
W2000-03173-CCA-R3-CO
Authoring Judge: Presiding Judge Gary R Wade
Trial Court Judge: Judge Joseph H. Walker, III

The petitioner, Javier Soto-Hurtado, appeals from the trial court's denial of habeas corpus relief. In this appeal of right, the petitioner contends that his conviction for sexual battery is void. The judgment is affirmed.

Cedric Franklin v. Tennessee Department of Correction
M2001-00279-COA-R3-CV
Authoring Judge: Presiding Judge Ben H. Cantrell
Trial Court Judge: Chancellor Irvin H. Kilcrease, Jr.

A prison disciplinary board found a minimum security prisoner to be guilty of violation of state law. The prisoner filed a Petition for Writ of Certiorari, claiming that the board had denied him due process. The trial court dismissed the petition. We affirm.

Billy R. Sadler v. Tennessee Board of Probation and Parole
M2001-02341-COA-R3-CV
Authoring Judge: Presiding Judge Ben H. Cantrell
Trial Court Judge: Chancellor Ellen Hobbs Lyle

A prisoner who was denied parole filed a Petition for Writ of Certiorari, challenging, on constitutional grounds, the procedures followed by the Parole Board. The trial court dismissed the petition. We affirm.

State of Tennessee, Department of Children's Services, v. Jennifer Lee Netherton Whited, et al.
M2000-03213-COA-R3-JV
Authoring Judge: Special Judge Walter C. Kurtz
Trial Court Judge: Judge A. Andrew Jackson

This appeal involves the termination of parental rights. The juvenile court terminated the parental rights of both parents. Appellant/mother challenges the juvenile court’s termination of her rights contending the juvenile court erred by allowing in certain documentary evidence, that the evidence did not clearly and convincingly establish that termination was in the child's best interest, the court failed to state affirmatively that termination was in the best interest of the child, and the petition for termination was defective as it did not explicitly state the statutorily mandated language of Tenn. Code Ann. § 36-1-113(d)(3)(C) (Supp. 2000). As discussed below, we affirm the judgment of the juvenile court.
T

Richard Thomas Bogan v. Doris Mae Bogan - Dissenting
E1998-00060-SC-R11-CV
Authoring Judge: Justice Janice M. HOlder
Trial Court Judge: Judge John S. Mclellan, III

The majority holds that Mr. Bogan’s ability to provide support has been significantly reduced based solely upon a unilateral, voluntary decision to retire. If Mr. Bogan currently is unable to pay Ms. Bogan the alimony she was awarded at the time of the divorce, it is only because Mr. Bogan became dissatisfied with his job and voluntarily decided to leave. His employment was not terminated or in danger of termination. Mr. Bogan decided to retire despite his existing obligation to his former wife. I therefore cannot agree with the majority’s decision to reduce Ms. Bogan’s alimony and must respectfully dissent.

Richard Bogan v. Doris Bogan
E1998-00060-SC-R11-CV
Authoring Judge: Justice William M. Barker
Trial Court Judge: Chancellor John S. McLellan, III

The sole question in this appeal is whether an obligor’s retirement constitutes a substantial and material change in circumstances so as to permit modification of a spousal support obligation. The trial court held that the obligor’s retirement did constitute a substantial and material change in circumstances, but the Court of Appeals reversed, finding that because the retirement was voluntary and foreseeable, the obligor could not seek modification of the original alimony award. We granted permission to appeal and hold that a bona fide retirement need only be objectively reasonable under the totality of the circumstances to constitute a substantial and material change in circumstances. In so holding, we reject, in the retirement context, the traditional test requiring an involuntary and unforeseeable change in circumstances to modify a support award. We further hold that the retirement in this case was objectively reasonable and that the trial court did not abuse its discretion in modifying the support award. We reverse the judgment of the Court of Appeals and reinstate the trial court’s modification of the support award. Tenn. R. App. P. 11 Application for Permission to Appeal; Judgment of the Court of Appeals Reversed

Richard Thomas Bogan v. Doris Mae Bogan - Concurring/Dissenting
E1998-00060-SC-R11-CV
Authoring Judge: Justice Adolpho A. Birch, Jr.
Trial Court Judge: Chancellor John S. McLellan, III

I write separately in this case to address a single issue of paramount significance here: the decision to retire and just how much scrutiny it should receive in the factual context of the case under submission. Assuredly, I concur in the result reached by the majority, which reinstates the trial court’s reduction of Bogan’s support obligation. I disagree, however, with the breadth of the reasoning used to reach that result. In my view, the decision to retire, particularly among workers nearing the ends of their careers, is personal, private, and nearly sacrosanct. Thus, I am compelled to clarify that I would limit the majority analysis to those cases involving obligors who have not yet reached the age for Social Security eligibility, presently age 62. In cases involving obligors who decide to retire after age 62, I would not subject the retirement decision to  analysis embraced by the majority

Terry Lee Matthews v. Larry Outland,
M1998-00578-WC-R3-CV
Authoring Judge: James L. Weatherford, Sr.J.
Trial Court Judge: Robert E. Burch, Judge
This workers' compensation appeal has been referred to theSpecial Workers' Compensation Appeals Panel of the Supreme Court in accordance with Tennessee Code Annotated _5-6- 225(e)(3) for hearing and reporting to the Supreme Court of findings of fact and conclusions of law. The plaintiff, a logger employed by L&L Logging Co. who was injured when a tree fell on him, appeals the judgment of the trial court in which the trial court found: 1) that Waverly Wood Products, a sawmill, was not a statutory employer under Tennessee Code Annotated _ 5-6-113 and 2) the plaintiff had sustained a 1% permanent partial disability to the body as a whole. After a complete review of the entire record, the briefs of the parties, and the applicable law, we affirm the judgment of the trial court. Tenn. Code Ann. _ 5-6-225(e) (1999) Appeal as of Right; Judgment of the Circuit Court Affirmed. JAMES L. WEATHERFORD, SR.J., in which ADOLPHO A. BIRCH, JR.,J., and JOE C. LOSER, JR., SP.J., joined. Joe Bednarz and Joe Bednarz, Jr., Nashville, Tennessee, for the appellant Terry Lee Matthews. Blakeley D. Matthews and Kristen Murphy Anderson, Nashville, Tennessee, for the appellee Waverly Wood Products, Inc. MEMORANDUM OPINION Mr. Terry Lee Matthews was 34 years old at the time of trial and had an eleventh grade education. His employment history includes gunneling boats and working in fast food restaurants and construction. In the late 198's to early 199's, Mr. Matthews went to work for Mr. Larry Outland and L&L Logging Company. His job duties included cutting logs to specified lengths, working on equipment, picking up parts and doing other errands as needed for Mr. Outland. Mr. Outland had had a long history of business dealings with Mr. James Richardson. Mr. Richardson, owner of Waverly Stave Co. and Richardson Lumber Co., had been in the lumber business for many years. In August 1992, Todd Richardson, son of James Richardson, started Waverly Wood Products, Inc., a sawmill, with a loan from Richardson Lumber Co. Waverly Wood Products also leased its operating equipment from Richardson Lumber Co. Todd Richardson was the president and sole shareholder of the corporation and James Richardson was employed as secretary-treasurer receiving an annual salary of $18,. Waverly Wood Products bought logs from more than 2 different vendors. In 1993, Richardson Lumber Co. bought the property where the accident occurred and later sold it to a Jack and Margaret Johnson for $119,1 while retaining the timber rights. Richardson Lumber Co. thereafter sold the timber rights to L&L Logging Co. and LarryOutland for $44,556.6 on December 7, 1993. On December 31, 1993, L&L Logging and Mr. Outland, individually, purchased logging equipment from Richardson Logging Company for $77, via a purchase money promissory note in favor of Waverly Wood Products, Inc., and a corresponding security interest in said equipment to Richardson Lumber Co. A sub-clause in each of the financing and security documents stated that Larry Outland and L&L Logging would sell logs to Waverly Wood and repayment amounts would be calculated at $2.5 per ton of logs and pulpwood with a minimum payment of $2, per month. The subclause also provided that if such deliveries ceased, the full loan amount would be due within 3 days of the date of the last delivery. According to Mr. Outland, payment was taken out of each of his deliveries to WaverlyWood Products. It was his understanding that so long as he paid $2, per month he could sell the wood to another company and make the payments. He did not sell logs to any other company besides Waverly Wood Products in 1994. Mr. Outland saw Mr. Richardson as a creditor. Mr. Outland determined where to cut the timber and what type of trees would be cut. He had exclusive control over the hiring and firing of his employees.2 Mr. Outland provided all the equipment and set his employees' wages. He also determined to whom to sell his logs and pulpwood based upon which sawmill was "paying the most." 1The contract provided that Richardson Lumber Co. would convey title to the property via general warranty deed upon payment in full of the purchase price to be paid in monthly installments of $894.1. 2 He had fired Mr. Matthews in the past for marijuana use on the job. He later re-hired him after Mr. Matthews informed him he had stopped using marijuana. -2-

State of Tennessee v. Michael Hill
W2000-02291-CCA-R3-CD
Authoring Judge: Judge Thomas T. Woodall
Trial Court Judge: Judge James C. Beasley, Jr.

The Defendant, Michael Hill, pled guilty to driving under the influence of an intoxicant, and submitted sentencing for determination by the trial court. Included within the sentencing was a determination by the trial court as to whether or not Defendant's prior convictions for DUI could be used to sentence him as a multiple DUI offender pursuant to Tennessee Code Annotated section 55-10-403. The trial court determined that at least two of the prior DUI convictions could be used to sentence Defendant as a multiple third DUI offender. Defendant was sentenced to 11 months and 29 days, with all but 180 days suspended, and he was fined $3,500.00. On appeal, Defendant argues that all of the prior convictions for DUI were imposed more than ten years prior to his conviction for DUI in this case, and that he should be sentenced as a first offender. We agree, and reverse the judgment of the trial court and remand this case for a sentencing hearing as a DUI first offender.

State of Tennessee v. Colico Walls
W2000-03008-CCA-R3-CD
Authoring Judge: Presiding Judge Gary R Wade
Trial Court Judge: Judge Joseph B. Dailey

The defendant, Colico Walls, was convicted of attempted aggravated robbery. The trial court imposed a Range III sentence of 15 years. In this appeal of right, the defendant challenges the sufficiency of the evidence as to identity. The judgment is affirmed.

State of Tennessee v. Joseph E. Skelton
E2000-02255-CCA-R10-CO
Authoring Judge: Judge Thomas T. Woodall
Trial Court Judge: Judge Ray L. Jenkins

Following Defendant’s conviction for aggravated assault, this Court granted his application for extraordinary appeal pursuant to Tenn. R. App.  P. 10 to determine whether a second trial on the matter of guilt for attempted first degree murder, an offense charged in Defendant’s first trial but upon which the jury could not reach a unanimous verdict, would violate principles of double jeopardy. After a review of the facts and relevant law, we dismiss the count of the presentment charging attempted first degree murder and remand this case for sentencing on his conviction for aggravated assault.

Danny W. Hobbs v. State of Tennessee
E2000-03182-CCA-R3-PC
Authoring Judge: Judge Thomas T. Woodall
Trial Court Judge: Judge Phyllis H. Miller

The Petitioner/Appellee, Danny W. Hobbs, filed a petition for post conviction relief in the Criminal Court of Sullivan County. The petition was filed after expiration of the applicable statute of limitations. The trial court granted post-conviction relief and the State appeals. After review, we reverse the judgment of the trial court.

State of Tennessee v. Nicholas J. Johnson
M2000-03162-CCA-R3-CD
Authoring Judge: Judge David G. Hayes
Trial Court Judge: Judge Timothy L. Easter

The Appellant, Nicholas J. Johnson, presents for review a certified question of law. Johnson pled guilty to two counts of possession of Schedule I drugs for resale, one count of possession of Schedule IV drugs for resale, and simple possession. Johnson received an effective ten (10)-year Community Corrections sentence, and was ordered to serve one hundred and fifty (150) days, day for day, in the Williamson County Workhouse. As part of his plea, Johnson explicitly reserved, with the consent of the trial court and the State, a certified question of law challenging the trial court's denial of his motion to suppress. After review, we find that the question was not properly certified because it fails to clearly identify the scope and limits of the legal issue reserved. Accordingly, the appeal is dismissed.

State of Tennessee v. Richard W. Herrell, a.k.a. Ricky Herrell
M1998-00767-CCA-R3-CD
Authoring Judge: Judge David G. Hayes
Trial Court Judge: Judge Robert E. Burch

The Appellant, Richard W. Herrell, a.k.a. Ricky Herrell, was indicted by a Dickson County Grand Jury for vandalism resulting in personal property damage of $500 to $1,000. Following a bench trial, Herrell was found guilty of the indicted charge and received a two-year suspended sentence. On appeal, Herrell raises one issue for our review: Whether the evidence presented at trial was sufficient to support his conviction. After review, we find no error and affirm the judgment.

State of Tennessee v. Daniel O. Connelly
M2000-01914-CCA-R3-CD
Authoring Judge: Judge J. Curwood Witt, Jr.
Trial Court Judge: Judge Allen W. Wallace

The defendant, Daniel O. Connelly, appeals from his conviction of driving under the influence of an intoxicant (DUI) imposed after a bench trial in the Dickson County Circuit Court. He claims on appeal that the evidence is insufficient to support his conviction and that the trial court erred in overruling a pretrial motion to suppress any evidence that the state garnered following the defendant's warrantless arrest. After hearing oral arguments and reviewing the record, the parties' briefs, and the applicable law, we affirm the conviction.