State of Tennessee v. David Pryor Gilliard
M1999-00771-CCA-R3-CD
Authoring Judge: Judge Thomas T. Woodall
Trial Court Judge: Judge John H. Gasaway, III

A Montgomery County jury convicted Defendant, David Pryor Gilliard, of theft of property under $500 in value, and burglary of an automobile. As a result of these convictions, the trial court found the Defendant was in violation of a previously imposed four-year Community Corrections sentence. Following a sentencing hearing, the trial court sentenced Defendant as a Range II multiple offender to four (4) years for the burglary and eleven (11) months and twenty-nine (29) days for the theft with the sentences to run concurrently. The trial court also ordered that the theft and burglary sentences run consecutively to Defendant's Community Corrections violation, for an effective sentence of eight years. Defendant appeals as of right and challenges the length and manner of service of his sentence. After a thorough review of the record, we affirm the judgment of the trial court.

State of Tennessee v. Thomas Hicks
M2000-00404-CCA-R3-CD
Authoring Judge: Judge Robert W. Wedemeyer
Trial Court Judge: Judge Seth W. Norman

The Defendant was convicted by a Davidson County jury of aggravated robbery and sentenced by the trial court to twenty-two years in the Tennessee Department of Correction. On appeal, the Defendant argues that the trial court erred in failing to suppress the Defendant's confession. The confession had been videotaped by police detectives, but the video tape was accidentally erased prior to trial. Finding no error by the trial court, we affirm the Defendant's conviction.

State of Tennessee v. Guy William Rush
E1998-00592-SC-R11-CD
Authoring Judge: Justice Adolpho A. Birch, Jr.
Trial Court Judge: Judge R. Jerry Beck

Guy William Rush was indicted and tried for one count of attempt to commit second degree murder and one count of aggravated assault. On the attempted second degree murder count, the trial court instructed the jury on a number of lesser-included offenses, including attempted voluntary manslaughter; intentional or knowing aggravated assault accompanied by serious bodily injury; reckless aggravated assault accompanied by serious bodily injury; and assault accompanied by bodily injury. The jury convicted Rush of the lesser-included offense of reckless aggravated assault. Rush appealed, challenging the trial court's instructions on lesser-included offenses, and the Court of Criminal Appeals affirmed. Applying the lesser-included offense test established in State v. Burns, 6 S.W.3d 453 (Tenn. 1999), we conclude that neither reckless aggravated assault nor felony reckless endangerment are lesser-included offenses of attempted second degree murder. We conclude, however, that the offense of misdemeanor reckless endangerment is a lesser-included offense of attempted second degree murder and that the trial court erred in failing to so instruct the jury. Accordingly, we reverse the judgment of the Court of Criminal Appeals and remand the cause for a new trial in accordance with this opinion.

John Doe, et al., v. Mama Taori's Premium Pizza, LLC, et al.
M1998-00992-COA-R9-CV
Authoring Judge: Judge William C. Koch, Jr.
Trial Court Judge: Judge Thomas Goodall

This appeal arises out of homosexual conduct in the workplace between an adult employee and a sixteen-year-old, part-time employee. After the adult employee was arrested and charged with statutory rape and contributing to the delinquency of a minor, the minor employee and his parents filed suit in the Circuit Court for Sumner County seeking damages from the adult employee and the owner of the restaurant where the minor employee and the supervisor had worked. The restaurant denied liability and among its affirmative defenses asserted the defense of consent with regard to the minor's claims and the defense of comparative fault with regard to the claims of the minor's parents. The trial court denied the minor's and his parents' motions to strike these defenses but granted the minor and his parents permission to apply for an interlocutory appeal. We granted the interlocutory appeal and now hold that the trial court correctly denied the motions to strike the restaurant's defenses.

South Harpeth Farms, et al., v. Metropolitan Government of Nashville and Davidson County, et al.
M2000-00635-COA-R3-CV
Authoring Judge: Presiding Judge Ben H. Cantrell
Trial Court Judge: Chancellor Irvin H. Kilcrease, Jr.

The Metropolitan Board of Zoning Appeals granted a special use exception to the Metropolitan Government of Nashville and Davidson County for the construction of a tower for a new emergency response system. The appellants, South Harpeth Farms, LLC, James A. Webb, III and William H. Freeman appeal the trial court's order. The trial court held that the granting of the special use exception was supported by material evidence and that the Board of Zoning Appeals did not act illegally, arbitrarily or fraudulently. The appellants appeal on the grounds that: (1) The Metropolitan Government of Nashville and Davidson County was not a proper applicant for a special use exception under the Metropolitan Zoning Regulations; (2) the Metropolitan Government of Nashville and Davidson County misrepresented to the Board of Zoning Appeals that the proposed site for the project was the only possible location for the radio tower; and (3) the Board of Zoning Appeals arbitrarily and capriciously granted the special use exception in the absence of any material evidence to support its decision. We affirm the decision of the trial court.

Donna Roxbury Breeding (Henson) v. Kenny Frank Breeding
M2000-00952-COA-R3-CV
Authoring Judge: Judge Holly M. Kirby
Trial Court Judge: Judge Jim T. Hamilton

This is post-divorce custody dispute. In the original divorce decree, the mother was awarded custody of the parties' two minor children. Subsequently, when the mother was required to undergo brain surgery, the mother and father agreed, and the trial court ordered, that the father would have custody of the children until each child reached the age of twelve, at which point the child would decide with which parent he wished to live. After recovering from the surgery, the mother filed a petition to change custody citing, inter alia, the children's desire to live with her and the children's worsening behavior, which included running away from the father's home. The trial court denied the mother's petition, finding no material change in circumstances warranting a change of custody. From this order, the mother now appeals. We reverse and remand, finding that the trial court applied the incorrect standard in light of the prior agreed order.

State of Tennessee v. Jeffrey McMahan
E2000-01603-CCA-R3-CD
Authoring Judge: Judge David H. Welles
Trial Court Judge: Judge Richard R. Vance

The Defendant was convicted of DUI, fourth offense. He appeals, contending that the evidence is insufficient to support his conviction. We affirm the trial court’s judgment.

State of Tennessee v. Perry Thomas Randolph
M2000-2293-CCA-R3-CD
Authoring Judge: Judge David G. Hayes
Trial Court Judge: Judge Leon C. Burns, Jr.

The State appeals from the Putnam County Criminal Court’s order granting the Defendant’s motion to suppress. The Defendant, Perry Thomas Randolph, was charged by indictment with one count of theft, one count of aggravated assault, one count of burglary, and one count of resisting arrest.  The Defendant filed a motion to suppress, challenging his initial stop and seizure by the police. The trial court found the Defendant’s seizure illegal because it failed to meet the minimal requirements of Terry v. Ohio. After review, we find it unnecessary to examine the issue of whether the officer had sufficient articulable facts to justify stopping the Defendant because we find no such stop occurred. The judgment of the trial court is reversed and the case remanded for further proceedings in accordance with this opinion.

Cheryl Ellis v. Smith Co. Coatings,
M1999-02336-WC-R3-CV
Authoring Judge: Joe C. Loser, Jr., Sp. J.
Trial Court Judge: John Wooten, Judge
In this appeal, the employee insists the trial court erred in dismissing her claim for failure to give written notice of her claimed injury and for insufficient proof of compensability. As discussed below, the panel has concluded the judgment should be affirmed.

Tammy Lynne Pruett v. Service Merchandise Company,
M2000-00636-WC-R3-CV
Authoring Judge: Joe C. Loser, Jr., Sp. J.
Trial Court Judge: Carol L. Mccoy, Chancellor
In this appeal, the appellant insists the trial court erred in disallowing her Tenn. R. Civ. P. 6 motion for relief from a final judgment. As discussed below, the panel has concluded the judgment should be affirmed.

Terry Traylor v. North American Royalties, Inc., d/b/a
E2000-01053-WC-R3-CV
Authoring Judge: John K. Byers, Sr. J.
Trial Court Judge: Jacqueline E. Schulten, Judge
The trial court granted the defendant's motion for summary judgment and dismissed the plaintiff's petition to reopen his previously settled workers' compensation case under the provisions of Tennessee Code Annotated _ 5-6-241(a)(2). We reverse and remand the case to the trial court for further proceedings in accordance with this opinion.

State of Tennessee v. Richard M. Far, Jr.
M1999-00644-CCA-R3-CD
Authoring Judge: Judge Jerry L. Smith
Trial Court Judge: Judge James K. Clayton, Jr.

On August 5, 1998, Richard M. Far, Jr., the Defendant and Appellant, was indicted by a Rutherford County Grand Jury for one count of arson and one count of setting fire to personal property. The Defendant was tried in absentia. At the close of the State's proof, the trial court granted the Defendant's motion for acquittal regarding setting fire to personal property. Following trial, the jury convicted the defendant of arson. After a subsequent sentencing hearing, also conducted in absentia, the trial court sentenced the defendant as a Range III, persistent offender to fourteen years incarceration. On appeal, the Defendant argues (1) that the trial court erred in excluding him from his trial, and (2) that the trial court erroneously sentenced the defendant. Because we find that rule 43 of the Tennessee Rules of Criminal Procedure prohibits trial in absentia when the defendant is not present at the beginning of trial, we reverse the judgement of the trial court and remand for a new trial.

State of Tennessee v. Thorsten John Boger
M1999-02476-CCA-R3-CD
Authoring Judge: Judge David G. Hayes
Trial Court Judge: Judge John H. Gasaway, III

Thorsten John Boger appeals from the sentencing decision of the Montgomery County Circuit Court following his guilty pleas to two counts of class B felony sale of cocaine. Boger was sentenced to nine years in the Department of Correction on each count, with the sentences to be served concurrently. On appeal, he argues that he should have received the minimum sentence of eight years. Finding no error, we affirm.

State of Tennessee v. Carl Johnson and Derrick Sutton
W2000-00278-CCA-R3-CD
Authoring Judge: Judge Joseph M. Tipton
Trial Court Judge: Judge James C. Beasley, Jr.

The defendants, Carl Johnson and Derrick Sutton, were each convicted by a jury of especially aggravated robbery. Johnson raises three issues on appeal: (1) whether the evidence was sufficient to support his conviction for especially aggravated robbery; (2) whether the trial court erred in denying his motion for severance; and (3) whether the trial court erred in sentencing him to the maximum sentence of twenty-five years. Sutton challenges the sufficiency of the convicting evidence. We affirm the judgments of the trial court.

Joanne Dickey, et vir., v. W. Keith McCord, et al.
E2000-00567-COA-R3-CV
Authoring Judge: Judge David R. Farmer
Trial Court Judge: Judge Harold Wimberly

This is a personal injury action arising from a boating accident in the Bahamas. At trial, the jury returned a verdict for the defendants. The plaintiffs appealed, alleging that the jury's verdict was not supported by any material evidence as well as alleging error with the trial court's function as thirteenth juror and with its evidentiary rulings concerning an expert witness and admission of testimony concerning non-use of life preservers by the plaintiffs. We affirm.

Thomas Daniel Whited v. Wilson Farmers Cooperative,
M2000-00833-WC-R3-CV
Authoring Judge: Loser, Sp. J.
Trial Court Judge: J. O. Bond, 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 employer insists the trial court erred in its resolution of the issues of causation, permanency, extent of permanent disability, medical expenses and discretionary costs. As discussed below, the panel has concluded the judgment should be affirmed. Tenn. Code Ann. _ 5-6-225(e) (1999) Appeal as of Right; Judgment of the Criminal Court Affirmed LOSER, SP. J., in which BIRCH, J. and PEOPLES, SP. J., joined. William E. Halfacre, III, Madewell, Jared, Halfacre & Williams, Cookeville, Tennessee, for the appellants, Wilson Farmers Cooperative and Hartford Casualty Insurance. Lena Ann Buck and Frank Buck, Buck & Buck, Smithville, Tennessee, for the appellee, Thomas Daniel Whited. MEMORANDUM OPINION The employee or claimant, Whited, is 18 or 19 years old with an eighth grade education, who reads at a third grade level and performs mathematics and comprehensive reading at the second grade level. On November 13, 1997, while working for the employer, Wilson Farmers Coop, he suffered a crushing injury to his left hand, when the hand was accidentally caught between a fork lift and a steel post. The manager of the Coop was an eye witness to the accident and so testified at the trial. Whited continued to work, but has repeatedly re-injured the same hand. He has seen a number of doctors, some of whom were provided by the employer and some of whom were not. Warren McPherson is a board certified neurosurgeon licensed in Tennessee. He saw the claimant once on December 1, 1997. Dr. McPherson's impression was a soft tissue injuryto the area of the fourth knuckle, no evidence of reflex sympathetic dystrophy (RSD) involving the left upper extremity. The doctor said he would be "very surprised" if the claimant had any permanent impairment. Douglas Ray Weikert, is a board certified orthopedic surgeon licensed in Tennessee with certifications in hand and microsurgery. Dr. Weikert first saw the claimant on June 8, 1998. The doctor's first impression was a psychological condition, conversion reaction. When he saw the claimant on July 15, after another accident at work, he noticed some localized swelling of the injured hand, but ruled out RSD and opined the claimant would retain no permanent impairment. John McInnis is a board certified orthopedic surgeon licensed in Tennessee. Dr. McInnis first saw the claimant on February 9, 1998, when the claimant complained of pain. He continued to complain of pain in his injured hand when the doctor saw him on other occasions and after tests were ordered. Dr. McInnis continually noticed swelling and tenderness in the hand, but ruled out RSD and prescribed no restrictions. Robert E. Ivy is an orthopedic surgeon licensed in Tennessee, with a certificate in hand surgery. Dr. Ivy performed an independent examination of the claimant on April 2, 1999 and ruled out RSD and did not assign any permanent impairment. Richard Theodore Rutherford is a licensed practicing physician in Carthage, who saw the claimant in September 1998, prescribed pain medication and suggested he see a hand surgeon. Dr. Rutherford saw the claimant again the following month and the injured hand was swollen and very tender. He made a preliminary diagnosis of RSD. The claimant's pain, the doctor said, "seemed to be far out of degree to what I was seeing and that's very typical of RSD." Dr. Rutherford referred the claimant to Dr. Thomas Hardy, who confirmed his opinions and findings. Thomas L. Hardy is a Tennessee licensed physician specializing in pain medicine, who first saw the claimant on April, 28, 1999. He observed that the injured left hand had decreased nail bed profusion, decreased blood flow to the hand, shiny skin on the fingers, coolness and loss of hair and that the hand was hypersensitive to light touch, pinprick and vibration. Stellate ganglion blocks failed to relieve the pain or raise the temperature in the hand. Dr. Hardy diagnosed RSD or complex regional pain syndrome. John R. Moore is a board certified plastic surgeon, who first saw the claimant on November 11, 1998 and diagnosed RSD. Dr. Moore's testimony established that the condition was causally related to the crush injury at work and that the claimant would be left with a "significant" permanent impairment. His testimony included the following exchange: -2-

Donald Earl Mathis v. Emerson Motor Company
W1999-01792-WC-R3-CV
Authoring Judge: Wil V. Doran, Sp. J.
Trial Court Judge: George R. Ellis, Chancellor
The plaintiff suffered an injury to two of his fingers. The issue for review is whether the trial court erred in finding that the plaintiff sustained an 85 percent permanent partial disability to the right arm. We reverse the trial court and modify the judgment to award the plaintiff 85 percent permanent partial disability to the right hand.

Jennifer Mcgarity v. Tecumseh Products Company, et al.
W1999-01704-WC-R3-CV
Authoring Judge: Henry D. Bell, Sp. J.
Trial Court Judge: Hon. C. Creed Mcginley, Judge
Defendant Tecumseh Products Company appeals the judgment of the Circuit Court of Henry County awarding plaintiff permanent partial disability asserting error as to issues of notice, statute of limitations, and causation. For the reasons stated in the opinion We affirm the judgment of the trial court.

Philips Consumer Electronics Company v. Kathy A.
E2000-00791-WC-R3-CV
Authoring Judge: John K. Byers, Sr. J.
Trial Court Judge: Dale C. Workman, Judge
This workers' compensation suit was instituted by the employer. The trial judge found the employer should pay all medical care necessary for the treatment of an injury at work, that no temporary total benefits were owed, and that the employee suffered no permanent disability. We affirm the judgment of the trial court.

State of Tennessee v. Eddie Erwin
E2000-00989-CCA-R3-CD
Authoring Judge: Judge David H. Welles
Trial Court Judge: Judge R. Jerry Beck

The Defendant, Eddie Erwin, was convicted by a jury of the sale of cocaine, a Class C felony. He was sentenced as a Range III, persistent offender to twelve years incarceration. In this appeal as of right, he agues (1) that the evidence was insufficient to support the conviction; (2) that the trial court erred by convicting the Defendant based on the original indictment rather than the re-indictment; (3) that the trial court erred by failing to suppress a videotape containing statements the Defendant made while talking on a telephone in the jail; (4) that the trial court erred by admitting into evidence a photographic lineup; and (5) that the trial court erred by enhancing the Defendant's sentence based on three prior Illinois felony convictions and based on post-offense conduct. We conclude that the evidence was sufficient to support the conviction, that the Defendant was not convicted based on the wrong indictment, and that the trial court did not err by admitting the videotape and the photographic lineup into evidence; thus, we affirm the Defendant's conviction. We do, however, find that the trial court erred by sentencing the Defendant as a Range III, persistent offender, based on three prior Illinois felony convictions, because those convictions would have been misdemeanors under Tennessee law. We therefore modify the Defendant's sentence to ten years as a Range II, multiple offender. We also remand for correction of the judgment, which contains a clerical error reflecting an incorrect offense date.

State of Tennessee v. Anthony Ray Lawson
E2000-01419-CCA-R3-CD
Authoring Judge: Judge J. Curwood Witt, Jr.
Trial Court Judge: Judge Richard R. Baumgartner

Anthony Ray Lawson appeals his conviction of especially aggravated robbery and contests the sufficiency of the evidence. Upon review, we hold that the evidence is sufficient to sustain the conviction and therefore affirm the judgment of the trial court.

Jesus M. Parra v. Rieth-Riley Construction Co.,
W1999-00419-WC-R3-CV
Authoring Judge: John K. Byers, Sr. J.
Trial Court Judge: Robert L. Childers, Judge
The trial judge found the plaintiff, Jesus M. Parra, suffered an 8 percent permanent partial disability to the right foot. The defendants, Rieth-Riley Construction Company and Zurich-American Insurance Group, contend the evidence does not support the award and further say the injury was limited to two toes rather than to the foot. We affirm the judgment of the trial court.

Kitty Lou Kimbro v. Ferro Corporation
M2000-00400-WC-R3-CV
Authoring Judge: Carol Catalano, Sp. J.
Trial Court Judge: J. O. Bond, Judge
This workers' compensation appeal has been referred to the Special Workers' Compensation Appeals Panel in accordance with Tenn. Code Ann. _ 5-6-225(e)(3) (1999) for hearing and reporting to the Supreme Court of findings of fact and conclusions of law. Ferro Corporation raises three issues on appeal, arguing that the trial court erred in (1) finding that the plaintiff had suffered a permanent injuryto the left upper extremity, (2) finding a 1 percent anatomical impairment to the left upper extremity, and (3) assessing awards of 45 percent permanent partial disability to the right upper extremity and 3 percent permanent partial disability to the left upper extremity. On review, the Panel concludes that the evidence does not preponderate against the trial court's finding of a permanent injury to the left upper extremity. Furthermore, though we conclude that the trial court's finding of 1 percent anatomical impairment to the left upper extremity was excessive, we nonetheless hold that the evidence does not preponderate against the trial court's awards of 45 percent permanent partial disability to the right upper extremity and 3 percent permanent partial disability to the left upper extremity. Tenn. Code Ann. _ 5-6-225(e) (1999) Appeal as of Right; Judgment of the Criminal Court Affirmed CAROL CATALANO, Sp. J., in which ADOLPHO A. BIRCH, JR., J., and JAMES L. WEATHERFORD, Sr. J., joined. Jill A. Hanson, Nashville, Tennessee, for the appellant, Ferro Corporation. Susan K. Bradley, Murfreesboro, Tennessee, for the appellee, Kitty Lou Kimbro. MEMORANDUM OPINION I. Facts and Procedural History Kitty Lou Kimbro,1 the plaintiff, began working for Ferro Corporation (Ferro),the defendant, in July 1987. Except for a two-year layoff which ended in 1993,2 she was employed by Ferro continuously. During her employment with Ferro, Kimbro occupied a variety of positions, working as a smelter operator, running machines in Ferro's milling department, and mixing, weighing, and packaging raw materials. Many of these tasks involved strenuous lifting of boxes and bags of materials. At some point while working in the milling department, Kimbro noticed that she was experiencing pain in her hands. In February 1998, Kimbro reported this pain to Ferro. Initially, Kimbro was treated conservatively for her injuries, but eventually she was referred to Joseph Weick, M.D., who performed a surgical "carpal tunnel release" on her right arm. Kimbro returned to work for Ferro on light duty the day after her surgery. Subsequently, Kimbro transferred to Ferro's "lab" department, where she worked full time and without restrictions, though she still experienced pain to her hands while writing and while operating air hoses used in the lab. During this time, Kimbro complained to Weick on numerous occasions that she was having difficulty with her grip strength and with controlling her thumb. Kimbro continued to work for Ferro for approximately nine months before she was terminated.3 At trial, Kimbro testified that she continued to have pain in the edges of her hands, through her thumbs and down the sides of her palms, and she also had symptoms of numbness and problems gripping. Kimbro also presented the deposition testimony of orthopedic surgeon Richard Fishbein, M.D., who assigned Kimbro an anatomical impairment rating of 5 percent to the left upper extremity and 12 percent to the right upper extremity. Ferro, on the other hand, presented the deposition testimony of Wieck, who assigned Kimbro an anatomical impairment rating of 5 percent to the right upper extremity, but no impairment rating to the left upper extremity. Wieck, however, conceded that he did not evaluate her left extremity in determining impairment. The trial court concluded that Kimbro had suffered a permanent vocational disability resulting from bilateral carpal tunnel syndrome, and it awarded Kimbro benefits based on findings of 45 percent permanent partial disability to the right upper extremity and 3 percent permanent partial disability to the left upper extremity. Ferro appealed, asserting that the trial court erred in (1) finding permanent injury to the left upper extremity; (2) finding a 1 percent anatomical impairment to the left upper extremity; and (3) assessing permanent partial disability awards of 45 percent to the 1At trial, Kimbro testified that she was forty years old and has obtained her GED. 2During the period in which she was laid off from Ferro, Kimbro worked in various jobs as a dock worker, waitress, and cashier. 3In her brief, Kimb ro intimates that she was wron gfully terminated because she was "fired . . . after giving her deposition in this workers' co mpensatio n action." Fe rro maintains that she was term inated for "atten dance rea sons." The allegatio n that Kimbro was fired wrongfully, however, is not part of the action before the Panel and will not be addressed. -2-

Philip Workman v. Donal Campbell, et al.
M2001-01445-COA-R3-CV
Authoring Judge: Judge W. Frank Crawford
Trial Court Judge: Ellen Hobbs Lyle
This case involves the extent to which the State of Tennessee may regulate a condemned prisoner's right to be attended by his personal minister in the hours leading up to his execution. Prisoner sued the Commissioner of the Tennessee Department of Corrections and the prison warden based upon the warden's denial of prisoner's request that his personal religious advisor be physically present at all times leading up to his execution. The chancery court ordered the issuance of a writ of mandamus requiring the prison warden to allow the prisoner's minister to attend the prisoner at all times until the prisoner enters the death chamber. We reverse and remand.

State of Tennessee v. Charlie M. Gardner
M1999-02214-CCA-R3-CD
Authoring Judge: Judge Thomas T. Woodall
Trial Court Judge: Judge Cheryl A. Blackburn

The Defendant, Charlie M. Gardner, was found guilty by a Davidson County jury of one count of first degree premeditated murder and two counts of reckless aggravated assault. The jury sentenced the Defendant to life without the possibility of parole for the first degree murder conviction, and the trial court sentenced the Defendant to four years for each reckless aggravated assault conviction, all sentences to be served consecutively. In this appeal, the Defendant challenges (1) the admissibility of hearsay statements as falling within the excited utterance exception, (2) the sufficiency of the evidence as to all three convictions and (3) the fatal variance between the allegations in count two of the indictment and the proof offered at trial. Based upon our review, we affirm the judgment of the trial court.