Opinions

J.D. Hickman v. State of Tennessee
E1999-02756-CCA-R3-PC
Authoring Judge: Judge J. Curwood Witt, Jr.
Trial Court Judge: Lynn W. Brown

State vs. Tracy L. Fry
E1999-02758-CCA-R3-CD
Authoring Judge: Judge Jerry Smith
Trial Court Judge: Lynn W. Brown
Tracy Fry, the Defendant and Appellant, pled guilty to driving under the influence, second offense. With the State's and trial court's agreement, however, she specifically reserved the right to appeal a dispositive question of law pursuant to Tenn. R. Crim. P. 37(b)(2)(1). The issue reserved for review is whether Officer Kyte "had reasonable suspicion based on specific and articulable facts, to approach and subsequently seize the defendant leading to the arrest of the defendant." We conclude that the initial encounter between Officer Kyte and the Defendant was not a seizure, that the encounter provided reasonable suspicion sufficient to justify an investigatory detention of the Defendant, and that sufficient probable cause to arrest the Defendant developed during the course of the brief investigatory detention. Thus, the judgment of the trial court is affirmed.

State vs. Bruce Adams
E2000-00298-CCA-R3-CD
Authoring Judge: Judge J. Curwood Witt, Jr.
Trial Court Judge: D. Kelly Thomas, Jr.
The defendant, Bruce Adams, appeals his convictions of resisting arrest and disorderly conduct and the manner of service of his effective six-month sentence. The trial court ordered ten days of confinement and probated the balance of the sentence. The resisting arrest conviction is supported by sufficient evidence, and we affirm that conviction and the sentence, including the confinement term. However, because we find insufficient evidence to support the disorderly conduct conviction, we reverse it and dismiss that charge.

Bobby Lee Tate vs. State
E2000-00796-CCA-R3-CD
Authoring Judge: Judge J. Curwood Witt, Jr.
Trial Court Judge: Ray L. Jenkins
The petitioner appeals the trial court's denial of his "Motion to Vacate Judgment." Even though we treat the motion as a petition for habeas corpus relief and countenance the appeal via Tennessee Rule of Appellate Procedure 3(b), the record supports the trial court's determination that the factual allegations of improper or invalid judgments are unfounded. Thus, the trial court's denial of the motion or petition is affirmed.

State vs. Charles Arnold Ballinger
E2000-01339-CCA-R3-CD
Authoring Judge: Judge Jerry Smith
Trial Court Judge: R. Steven Bebb
On October 14, 1998, a Bradley County Grand Jury indicted Charles Ballinger, the defendant and appellant, for statutory rape and contributing to the delinquency of a minor. Following a jury trial, the defendant was convicted on both counts. The court sentenced the defendant to serve two years for statutory rape concurrently with eleven months and twenty-nine days for contributing to the delinquency of a minor. On appeal, the defendant claims (1) that the evidence was insufficient to support a statutory rape conviction, (2) that the trial court should have suppressed a tape recording of a telephone conversation, (3) that the defendant's sentence was excessive, and (4) that the trial court should have instructed the jury to consider mistake of fact as a defense. Because we find that statutory rape requires proof of at least a "recklessness" mens rea and that the trial court should have instructed the jury to consider mistake of fact as a defense to statutory rape, we reverse the judgment of the trial court and remand this case for a new trial.

State vs. James E. Harman, Jr.
E2000-00437-CCA-R3-CD
Authoring Judge: Judge Jerry Smith
Trial Court Judge: R. Jerry Beck
In October of 1999, the defendant pled guilty to one count of theft over one-thousand dollars ($1,000.00) and one count of possession of less than .5 ounces of marijuana. His plea form indicated that he agreed to receive concurrent sentences of five and one-half years as a Range II, multiple offender for the former offense and eleven months and twenty-nine days for the latter. Subsequently, the trial court conducted a hearing to determine the manner in which these sentences were to be served. At the conclusion of such hearing, the trial court denied the defendant any form of alternative sentencing, and it is this denial that the defendant contests through his appeal. However, after having reviewed the record and applicable authorities, we find this contention to be without merit and, therefore, affirm the trial court's sentence.

State vs. James E. Harman, Jr.
E2000-00437-CCA-R3-CD
Authoring Judge: Judge Jerry Smith
Trial Court Judge: R. Jerry Beck

In October of 1999, the defendant pled guilty to one count of theft over one-thousand dollars ($1,000.00) and one count of possession of less than .5 ounces of marijuana. His plea form indicated that he agreed to receive concurrent sentences of five and one-half years as a Range II, multiple offender for the former offense and eleven months and twenty-nine days for the latter. Subsequently, the trial court conducted a hearing to determine the manner in which these sentences were to be served. At the conclusion of such hearing, the trial court denied the defendant any form of alternative sentencing, and it is this denial that the defendant contests through his appeal. However, after having reviewed the record and applicable authorities, we find this contention to be without merit and, therefore, affirm the trial court's sentence.

Jimmy B. Hillard, et al vs. Buddie Ruth Franklin
E2000-00402-COA-R3-CV
Authoring Judge: Judge Charles D. Susano, Jr.
Trial Court Judge: Richard R. Vance
This is a suit for specific performance. The plaintiffs entered into an agreement with the defendant to purchase certain real property for $80,000. Before the purchase was closed, a house on the property was destroyed by fire, and the defendant collected $35,000 as proceeds from her homeowners' insurance policy. The purchase of the property did not proceed to closing and the plaintiffs filed suit for specific performance of the contract at a purchase price of $45,000 -- this amount being the difference between the original purchase price and the insurance proceeds collected by the defendant. The trial court granted the plaintiffs summary judgment. The defendant appeals, contending that this case is not ripe for summary judgment. We affirm.

John E. Carter vs. Howard Carlton
E2000-00406-CCA-R3-PC
Authoring Judge: Judge J. Curwood Witt, Jr.
Trial Court Judge: Robert E. Cupp
John E. Carter seeks the writ of habeas corpus. He claims that he is entitled to immediate release from his two 1981 convictions for the first degree murder of his grandparents. Carter alleges that he is being illegally restrained because he had inadequate notice of the charges against him, because the trial court excluded relevant evidence at his trial, and because the jury instructions given at his trial were flawed. We agree with the court below that these issues do not entitle Carter to issuance of the writ of habeas corpus. Accordingly, we affirm the lower court's dismissal of the petition.

Michael Bailey vs. State
E2000-00432-CCA-R3-PC
Authoring Judge: Judge Jerry Smith
Trial Court Judge: R. Jerry Beck
A Sullivan County jury convicted the petitioner of one count of second degree murder involving the death of his son. For this offense the petitioner received a sentence of twenty years as a Range I, standard offender, and a $50,000 fine. He unsuccessfully brought a direct appeal challenging both his conviction and sentence. Subsequently, he filed a pro se post-conviction petition and was appointed counsel from the public defender's office. Following an evidentiary hearing, the trial court took this matter under advisement and later issued a detailed order dismissing the petition. Thereafter, the petitioner requested that his appointed attorney withdraw from the case and that he be allowed to bring his appeal pro se. The trial court granted this motion, and the petitioner now brings this appeal raising three issues. More specifically, he asserts that (1) the jury instructions, when viewed overall, effectively denied him "a fair trial and a reliable verdict;" (2) the State engaged in misconduct and denied him a fair trial by withholding exculpatory material; and (3) the prosecuting officer made the result of the petitioner's trial unreliable because the officer perjured himself. After reviewing these issues, we find that all have been waived and/or lack merit. We, therefore, affirm the trial court's denial of post-conviction relief.

State vs. Frankie Lee Lunsford
E2000-00642-CCA-R3-CD
Authoring Judge: Judge J. Curwood Witt, Jr.
Trial Court Judge: R. Jerry Beck
The defendant appeals from his sentences imposed in the Sullivan County Criminal Court for three counts of contributing to the unruliness of a minor, a Class A misdemeanor; one count of inhaling paint, a Class A misdemeanor; one count of public intoxication, a Class C misdemeanor; one count of giving paint to another for unlawful purposes, a Class E felony; and one count of possession of drug paraphernalia, a Class A misdemeanor. The trial court imposed a sentence of two years on the felony conviction to be served in the Department of Correction, with the misdemeanor sentences running concurrently to the felony and to each other. In this direct appeal, the defendant challenges the denial of probation or alternative sentencing. We affirm the judgment of the trial court.

Walter E. Everette, et al vs. Hubert G. Berry, et al
E2000-00461-COA-R3-CV

Trial Court Judge: Daryl R. Fansler
In this dispute over real estate, the Plaintiffs seek to have a quit claim deed conveying certain property to the Defendants declared spurious, as well as injunctive relief relative to rights-of-way adjacent to their property. The Chancellor granted the relief the Plaintiffs sought, resulting in this appeal. We affirm.

State sv. Marcus Anthony Parram
E2000-00581-CCA-R3-CD
Authoring Judge: Presiding Judge Joseph M. Tipton
Trial Court Judge: James B. Scott, Jr.
The defendant appeals his convictions for aggravated robbery and aggravated burglary, contending that the evidence was insufficient to support his convictions, that the trial court erred in allowing hearsay statements into evidence, and that the trial court erred in allowing evidence of a prior robbery committed by the defendant. We affirm the judgments of the trial court.

State vs. William Terrell Hampton
E2000-00582-CCA-R3-CD
Authoring Judge: Presiding Judge Joseph M. Tipton
Trial Court Judge: Carroll L. Ross
The defendant appeals his conviction for aggravated sexual battery, contending that the evidence is insufficient to support his conviction, the trial court erred in admitting evidence of a fresh complaint, and the trial court erred in imposing a nine-year sentence. We affirm the defendant's conviction and sentence.

Michael E. Christian vs. State
E2000-00922-CCA-R3-PC
Authoring Judge: Presiding Judge Joseph M. Tipton
Trial Court Judge: R. Jerry Beck
The petitioner, Michael E. Christian, appeals the trial court's denial of his petition for post-conviction relief. He contends that he did not voluntarily enter his guilty pleas because he was experiencing panic attacks and confusion, which was a side effect of his medication, at the time he entered the pleas. He also claims that he received the ineffective assistance of counsel because his attorneys did not investigate the effects of his medication on his competency and scared him into pleading guilty. We affirm the trial court's denial of the petition.

State vs. Ricky Lee Netherton
E2000-01016-CCA-R3-CD
Authoring Judge: Presiding Judge Joseph M. Tipton
Trial Court Judge: Lillie Ann Sells
The defendant appeals his conviction for especially aggravated robbery, contesting the validity of the indictment and the length of his sentence. We affirm the judgment of the trial court.

State vs. Bernard K. Johnson
E2000-00009-CCA-R3-CD
Authoring Judge: Judge J. Curwood Witt, Jr.
Trial Court Judge: Ray L. Jenkins
The defendant appeals to challenge the sufficiency of the evidence supporting his convictions of sexual battery and aggravated kidnapping and the propriety of the felony sentences imposed by the trial court. We affirm the convictions, but upon notice of plain error, we reverse a misdemeanor conviction of aggravated criminal trespass. Finding the misapplication of some enhancement factors, we modify some of the sentences.

State vs. Bobby Wells
E2000-01496-CCA-R3-CD
Authoring Judge: Judge Jerry Smith
Trial Court Judge: R. Steven Bebb
A Monroe County jury convicted the defendant of the sale of .5 grams or more of cocaine and of a separate offense involving the sale of less than .5 grams of cocaine. For these crimes the trial court sentenced him to nine years and four years respectively as a Range I, standard offender. These sentences were ordered to run concurrently with one another. Furthermore, the jury assessed the defendant a fifteen thousand dollar fine on each conviction. At a subsequent hearing the trial court denied his new trial motion and revoked his probation from previous offenses. Appealing these decisions, the defendant raises the following six issues: 1) whether the trial court erred by permitting the State to introduce transcripts of taped conversations allegedly transpiring between the defendant and informant when such transcripts were admitted through a police officer who neither heard nor electronically monitored the involved conversations; 2) whether the trial court erred by permitting the prosecution to play and introduce the aforementioned tapes through the same officer; 3) whether the State failed to prove chain of custody because it neither called the lab technician who placed the evidence in the vault at the crime laboratory nor complied with Tennessee Rule of Evidence 803(6); 4) whether the trial court erred in refusing to grant the defendant a new trial based on newly discovered evidence involving the informant's motive for testifying against the defendant; 5) whether sufficient evidence existed to support the conviction; and 6) whether the defendant's probation revocation should stand when such was based upon the above-outlined new convictions and not the defendant's failure to report as was alleged in the probation violation warrant and when the convictions forming the basis for the revocation are allegedly not supported by sufficient evidence. After a review of the record, we find these claims to lack merit and, therefore, affirm the lower court's actions.

Barry King v. City of Belle Meade, and
M1999-01432-WC-R3-CV
Authoring Judge: Turnbull, Sp. J.
Trial Court Judge: Hon. Irvin H. Kilcrease, Jr., Chancellor
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) for hearing and reporting of findings of fact and conclusions of law. In this case, the employee contends the trial court erred in failing to award workers' compensation disability and/or medical benefits to the employee based upon his work-related hypertension and heart disease. As discussed below, the panel has concluded the trial court's dismissal of the employees workers' compensation claims should be affirmed. Tenn. Code Ann. _5-6-225(e)(3) Appeal as of Right; Judgment of the Chancery Court Affirmed Turnbull, Sp. J., in which Drowota, J., and Loser, Sp. J., joined. Daniel Carlton Todd, Nashville, Tennessee, for the appellant, Barry King. Teresa Reall Ricks, Farrar & Bates, Nashville, Tennessee, for the appellees, City of Belle Meade and TML Risk Management Pool, Inc., Appellees. MEMORANDUM OPINION The employee, Barry King ("King"), was employed as a police officer for the City of Belle Meade from January 1988 to September 1997. The City of Belle Meade is insured by TML Risk Management Pool, Inc. On January 6, 1988, prior to his employment as a police officer for the City of Belle Meade, King underwent a physical examination which failed to reveal any presence of hypertension or heart disease. On August 12, 1995, King was diagnosed with an irregular heartbeat and high cholesterol. The following day, he was hospitalized with chest pains. King continued his duties as a police officer for the City of Belle Meade after his release from the hospital. Upon the advice of King's cardiologist nearly two years later, King was referred to and treated by Dr. Marcus C. Houston, M.D., for high blood pressure, high cholesterol, coronary heart disease, carotid artery obstruction, and a history of transient ischemic attacks since June 3, 1997. On September 4, 1997, Dr. Houston suggested to King that he no longer continue to work as a police officer because the stress related to King's job as a police officer constituted a danger to King's health. On September 5, 1997, King terminated his employment as a police officer and submitted his First Report of Work Injury. King claims workers' compensation disability and/or medical benefits based upon his work-related hypertension and heart disease. He argues that job stress caused high blood pressure which in turn caused his heart disease. The employee insists he suffers an occupational disease under Tenn. Code Ann. section 5-6-31[6]. Subsequent to King's filing for workers' compensation, an independent health examination was conducted by Dr. Hal M. Roseman, M.D., who evaluated King's medical records, checked the calibration of King's blood pressure monitor, performed a physical examination of King, and had a psychological test of King performed. Dr. Roseman concluded to a reasonable degree of medical certainty that King's medical condition was not proximately caused by his employment as a police officer. Neither Dr. Roseman nor Dr. Houston can be characterized as a professional witness who commonly testify in worker's compensation cases. Charles Vincent Perry, Jr., the Chief of Police for Belle Meade, testified that King's duties as a police officer for the City of Belle Meade consisted of general patrol duties, specifically as a DUI enforcement officer. King does not specifically claim that any particular incident or event in performing his duties as a police officer precipitated his hypertension or coronary heart disease. From the above summarized evidence, the trial judge found that sufficient medical evidence rebutted the presumption, supplied by Tenn. Code Ann. _7-51-21(a)(1), that King's hypertension and heart disease were "accidental injur[ies] suffered in the course of employment." The trial court held that the employee failed to cite to a specific event or occurrence that precipitated his hypertension and heart disease. ISSUES Did the trial court properly find and conclude that the employee's heart disease is not compensable? [2]

Rongie Taylor vs. State
M2002-01780-CCA-R3-PC
Authoring Judge: Judge Jerry Smith
Trial Court Judge: James L. Weatherford
The post-conviction court denied the appellant's petition for post-conviction relief following his guilty plea to robbery with an agreed five-year sentence. In this appeal, the appellant argues: (1) his guilty plea was not entered voluntarily and knowingly; and (2) his trial counsel failed to provide him effective assistance relating to the entry of his plea. We affirm the judgment of the post-conviction court.

Steamfitters vs. Phillip Morris
W1999-01061-COA-R9-CV
Authoring Judge: Judge Holly M. Kirby
Trial Court Judge: James F. Russell
Union health and welfare funds brought an action against tobacco companies and their trade associations to recover the funds' costs of treating their participants' smoking-related illnesses. The tobacco companies moved to dismiss the complaint, arguing that the funds' economic injuries were derivative of the participants' physical injuries and, consequently, too remote for recovery. The trial court granted the motion to dismiss on the funds' antitrust claim but denied the motion on the funds' claims for fraud and deceit, misrepresentation, conspiracy and violation of the Tennessee Consumer Protection Act. Permission for interlocutory appeal was granted to the tobacco companies by both the trial court and the appellate court. We affirm the trial court's dismissal of the antitrust claim and reverse the trial court's denial of the motion to dismiss on the remaining claims, finding the plaintiffs' alleged injuries are too remote, as a matter of law, to permit recovery. The cause is remanded for entry of an order dismissing the plaintiffs' complaint.

State vs. Wendell Lewis
W2001-03098-CCA-R3-CD
Authoring Judge: Judge John Everett Williams
Trial Court Judge: James C. Beasley, Jr.
When the defendant's status on community corrections was revoked, the trial court should have given the defendant credit for the time served in the community corrections program. We, therefore, reverse and modify the judgment of the trial court.

State vs. Nathaniel Lynn Crockett
E1999-00694-CCA-R3-CD
Authoring Judge: Judge Robert W. Wedemeyer
Trial Court Judge: D. Kelly Thomas, Jr.
The Defendant pleaded guilty to two counts of burglary and two counts of theft over $1,000. The trial court sentenced the Defendant to two years for each count of theft over $1,000 and to one year for each count of burglary. The trial court ordered that all sentences be served concurrently and that the Defendant serve six months in the county jail followed by intensive probation for the remainder of the sentence. The Defendant was ordered to pay $2,500 in restitution and to perform one hundred hours of community service. On appeal, the Defendant argues that the trial court erred in sentencing him to six months in confinement. Finding no error, we affirm.

State s. Anthony Lynn Wyrick
E1999-02206-CCA-R3-CD
Authoring Judge: Presiding Judge Joseph M. Tipton
Trial Court Judge: Ray L. Jenkins
The defendant was convicted of two counts of aggravated rape and sentenced to concurrent terms of life without parole as a repeat violent offender. He challenges the sufficiency of the presentment, the sufficiency of the evidence, the admission of the victim's in-court identification of him as the attacker, the exclusion of evidence of a prior false accusation of rape by the victim, his inability to discover the victim's rape crisis center file, and the constitutionality of the repeat violent offender statute under which he was sentenced. Because the defendant should have been allowed to impeach the victim by cross-examining her about the prior false accusation of rape, we reverse the judgments of conviction and remand the case for a new trial.

State vs. Treva Dianne Green
E1999-02204-CCA-R3-CD
Authoring Judge: Judge J. Curwood Witt, Jr.
Trial Court Judge: D. Kelly Thomas, Jr.
The defendant appeals from her Blount County Circuit Court conviction and sentence for driving under the influence, a Class A misdemeanor. The trial court sentenced the defendant to eleven months and 29 days in the Blount County Jail, all of which was suspended except for service of eight days incarceration. The jury imposed a fine of $1,500. In this direct appeal, the defendant complains that the evidence is insufficient to support her conviction, that statements she made to the arresting officer should have been suppressed, that prosecutorial misconduct taints the verdict, that the jury should have been charged on reckless driving as a lesser-included offense, and that her sentence and fine are excessive. We affirm the judgment of the trial court, as modified.