Vestal Mfg. Co. v. Anderson
E1999-01470-WC-R3-CV
Authoring Judge: Howell N. Peoples, Special Judge
Trial Court Judge: Lawrence Howard Puckett, Judge
This workers' compensation appeal has been referred to the Special 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 appellant, Vestal Manufacturing Co., appeals an award of thirty-five percent disability to the body as a whole to Teresa Anderson. Appellant contends the trial court erred (1) in finding that Ms. Anderson has a twenty percent medical impairment rather than a five percent medical impairment, (2) in concluding Ms. Anderson has a permanent partial disability of thirty-five percent to the body as a whole, and (3) in construing the phrase, "The employer takes the employee as it finds her." We affirm the judgment of the trial court.

Willie Grace Green v. Atrium Memorial Surgery
E1999-00730-WC-R3-CV
Authoring Judge: Peoples, Sp. J.
Trial Court Judge: Jeffrey Stewart, Chancellor
This workers' compensation appeal has been referred to the Special 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 appellant, Atrium Memorial Surgery Center (hereafter "Atrium Memorial"), appeals an award of thirty-five percent disability to the body as a whole to Willie Grace Green. Appellant contends the trial court erred (1) in finding that the employee's underlying preexisting condition was advanced or progressed by her work, and (2) in awarding permanent partial disability benefits in any amount. We affirm the judgment of the trial court.

Robert Cunningham, Jr.,e t al vs. Shelton Security Service, Inc., et al
M1998-00023-SC-WCM-CV
Authoring Judge: Justice E. Riley Anderson
Trial Court Judge: Carol L. Mccoy
In this workers' compensation case, the estate of the employee, Robert W. Cunningham, Sr., has appealed from a chancery court judgment dismissing a claim for death benefits filed against the employer, Shelton Security Service, Inc. The employee, who worked as a security guard for the employer, died of heart failure while performing his duties at a store. At the close of the employee's proof, the trial court granted the employer's motion to dismiss on the basis that the emotional stress experienced by the employee the night of his death was not extraordinary or unusual for a security guard. The Special Workers' Compensation Appeals Panel, upon reference for findings of fact and conclusions of law, found that there was sufficient evidence of causation to warrant a trial and, thus, reversed the trial court's dismissal. Thereafter, the employer filed a motion for full Court review of the Panel's decision. We granted the motion for review to consider whether the trial court erred in dismissing the employee's claim on the basis that his heart failure did not arise out of the employment because it was not caused by a mental or emotional stimulus of an unusual or abnormal nature, beyond what is typically encountered by one in his occupation. After carefully examining the record and considering the relevant authorities, we agree with the Panel and reverse the trial court's judgment.

State vs. Joey Salcido
M1999-00501-CCA-R3-CD
Trial Court Judge: Jim T. Hamilton
Defendant Joey L. Salcido was indicted by the Giles County Grand Jury for three counts of incest and three counts of rape of a child. Following a jury trial, Defendant was convicted of three counts of aggravated sexual battery as a lesser-included offense of child rape and acquitted of the charges of incest. On March 15, 1999, the trial court sentenced Defendant as a violent 100% offender to a term of twelve years for each of his three convictions and ordered that all sentences be served consecutively. On April 15, 1999, thirty-one days after Defendant's judgment was entered, Defendant filed an untimely motion for new trial. The motion was nevertheless heard on April 19, 1999 and denied on April 20, 1999. On April 23, 1999, Defendant filed a notice of appeal which was also untimely due to the late filing of Defendant's motion for new trial. On May 25, 2000, Defendant filed a motion to waive the timely filing of his notice to appeal and on June 7, 2000, this Court granted Defendant's motion. In this appeal Defendant raises the following issues: (1) whether the Defendant's conviction of aggravated sexual battery, an offense which was neither charged in the indictment nor a lesser-included offense of the offenses charged, was error; (2) whether, assuming aggravated sexual battery is determined to be a lesser-included offense of child rape, the trial court erred in its jury instruction regarding the mental state necessary to convict him; (3) whether the trial court erred when it admitted certain evidence over Defendant's objections; (4) whether the cumulative effect of the trial court's errors renders the trial fundamentally unfair so as to offend Defendant's due process guarantees; and (5) whether the trial court erred when it imposed consecutive sentences. Defendant asserts that his first issue concerns subject matter jurisdiction and, therefore, must be heard by this Court pursuant to Tenn. R. App. P. 13(b). Defendant also urges this Court to exercise its discretion under Tenn. R. Crim. P. 52(b) or Tenn. R. App. P. 13(b) and consider the remaining four issues. After a thorough review of the record and applicable law, we find no errors requiring reversal and affirm the judgment of the trial court.

State vs. Joseph Miles
M1998-00682-CCA-R3-PC
Authoring Judge: Judge Thomas T. Woodall
Trial Court Judge: Robert W. Wedemeyer
Defendant Joseph Miles was convicted by a Robertson County jury of second degree murder. After a sentencing hearing, the trial court sentenced Defendant as a Range II violent offender to forty years. On appeal, Defendant raises the following issues: (1) whether the evidence is sufficient to support his conviction for second degree murder, (2) whether the sentence imposed by the trial court is excessive, and (3) whether a finding of plain error pursuant to Tenn. R. Crim. P. 52(b) justifies a dismissal of charges on the ground that the State participated in a conspiracy to kill Defendant. After a review of the record, we affirm the judgment of the trial court.

State vs. Larry Coulter
M1999-00784-CCA-R3-CD
Authoring Judge: Judge Norma McGee Ogle
Trial Court Judge: J. Steve Daniel
The appellant, Larry Coulter, appeals his conviction by a jury in the Rutherford County Circuit Court of one count of first degree premeditated murder. For his offense, the appellant received a sentence of life imprisonment in the Tennessee Department of Correction. In this appeal, the appellant presents the following issues for our review: (1) whether the trial court erred in failing to disqualify the office of the District Attorney General for the Sixteenth Judicial District from participating in the appellant's case; (2) whether the trial court erred in denying the appellant's pre-trial motion to suppress a statement that he made to officers of the La Vergne Police Department following his offense; (3) whether the trial court erred in denying the appellant's pre-trial motion to suppress the fruits of a warrantless search of his home by officers of the La Vergne Police Department; (4) whether the trial court erred in denying the appellant's pre-trial motion to exclude from evidence notes and letters written by the appellant to the victim prior to this offense; (5) whether the trial court erred in denying the appellant's pre-trial motion to exclude from evidence any proof of the victim's plans to move away from the Coulters' mobile home; (6) whether the trial court erred in overruling the appellant's objection to testimony by Sybil Victory concerning a telephone conversation; (7) whether the trial court erred in overruling the appellant's Tenn. R. Evid. 615 objection to testimony by Fawn Jones; (8) whether the trial court erred in overruling the appellant's objection to testimony by the State's firearms identification expert concerning a bullet recovered from the victim's body; (9) whether the trial court erred in permitting each member of the jury to "dry-fire" the murder weapon during the State's case-in-chief; (10) whether the trial court erred in permitting a State's witness to testify by deposition pursuant to Tenn. R. Crim. P. 15; (11) whether the trial court erred in permitting the State to impeach the appellant's psychologist with a "learned treatise" without satisfying the requirements of Tenn. R. Evid. 618; (12) whether the trial court erred in overruling the appellant's objection to rebuttal testimony by the State's psychologist that violated Tenn. R. Crim. P. 12.2(c); (13) whether the trial court erred in failing to charge the jury with certain special instructions requested by the appellant; (14) whether the trial court erred in permitting the State to alter or amend an exhibit immediately prior to the jury's deliberations; (15) whether the evidence adduced at trial is sufficient to support the jury's verdict; and (16) whether the cumulative effect of any errors requires the reversal of the appellant's conviction and the remand of this case for a new trial. Following a review of the record and the parties' briefs, we affirm the judgment of the trial court.

Phyllis McBride vs. State
M2000-00034-CCA-R3-PC
Authoring Judge: Judge Robert W. Wedemeyer
Trial Court Judge: James K. Clayton, Jr.
The Petitioner, Phyllis McBride, was convicted by a Rutherford County jury of first degree murder. On appeal, this Court affirmed the conviction. The Petitioner filed an application for permission to appeal to the Tennessee Supreme Court which was denied. The Petitioner then filed a petition for post-conviction relief. Following a hearing, the petition was dismissed. The Petitioner now appeals the trial court's denial of post-conviction relief. Finding no error, we affirm the judgment of the trial court.

State of Tennessee v. Charles A. Reynolds
M2000-00087-CCA-R3-CD
Authoring Judge: Judge Norma McGee Ogle
Trial Court Judge: Buddy D. Perry

Rebecca Cooper vs. Porter Cooper
W1999-01450-COA-R3-CV
Authoring Judge: Presiding Judge Alan E. Highers
Trial Court Judge: Joe C. Morris
This appeal arises from a dispute over a term in a Property Settlement Agreement that obligated Mr. Cooper to pay for his son's college education. Ms. Cooper sought reimbursement for various expenses totaling over $16,000.00 associated with her son's first year of college at Mississippi State University. Mr. Cooper argues that he should be liable only for the cost of tuition, fees, and books. For the following reasons, we affirm as modified and remand.

State vs. Joseph Faulkner
W1999-00223-CCA-R3-PC
Authoring Judge: Judge David G. Hayes
Trial Court Judge: Carolyn Wade Blackett
The appellant presents this appeal following dismissal of his petition for post-conviction relief. Faulkner entered guilty pleas to one count of aggravated rape and three counts of aggravated robbery in the Shelby County Criminal Court. Pursuant to his negotiated plea agreement, the appellant was sentenced to an effective sentence of twenty-five years. The plea agreement further provided that his state sentences were to be served concurrently with outstanding federal sentences and that all sentences would be served in federal custody. After pleading guilty to the state charges, the federal government refused to accept Faulkner into federal custody. Faulkner now asserts that his trial counsel was ineffective for providing erroneous advice and, as a result, his guilty pleas were not knowingly and voluntarily entered. Based upon the unfulfilled bargain of his negotiated plea agreement, he asks that his guilty pleas be set aside and that his case be remanded for trial or other appropriate relief. The State concedes that Faulkner is entitled to post-conviction relief. Finding Faulkner's request for post-conviction relief meritorious, we reverse the judgment of the post-conviction court and remand to the Shelby County Criminal Court for further proceedings.

Harold Angus vs. Western Hert.
W2000-00902-COA-R3-CV
Authoring Judge: Judge David R. Farmer
Trial Court Judge: Joe C. Morris
This appeal arises from a dispute between Contractor and Insurer over insurance coverage during a building demolition project. During the project, Contractor knowingly damaged an adjacent structure. When suit was brought against Contractor by the owners of the adjacent structure, Insurer refused coverage. The trial court found Insurers' policy and endorsement to be ambiguous and thus unenforceable. We disagree, finding that the policy and endorsement are not ambiguous and that they clearly state that Insurer will provide no coverage for intentional damage to other structures. We reverse the trial court's ruling and find that Insurer is not liable under the policy.

Clyde Holt vs. City of Memphis
W2000-00913-COA-R3-CV
Authoring Judge: Judge Holly M. Kirby
Trial Court Judge: Robert L. Childers
This is a wrongful death case. The plaintiff called 911 after his mother experienced difficulty breathing and passed out. When the paramedics arrived, the plaintiff's mother had regained consciousness. After examining her, the paramedics told the plaintiff that his mother was not sick enough to be transported to the hospital. The plaintiff asked that his mother be transported to the hospital, but nevertheless signed a form refusing transport to the hospital. A few hours later the plaintiff's mother's condition worsened. When the paramedics returned, they found the mother unconscious, and immediately took her to the hospital. She died seven days later. The plaintiff filed a wrongful death suit, alleging that the paramedics were negligent in not transporting his mother to the hospital on their first run. The trial court found the paramedics negligent and awarded the plaintiff a money judgment. We reverse, holding that the plaintiff was required to establish by expert testimony the standard of care for the paramedics

Bobby Conlee vs. Juanita Conlee
W2000-00471-COA-R3-CV
Authoring Judge: Presiding Judge Alan E. Highers
Trial Court Judge: Martha B. Brasfield
This appeal involves a divorce ending a fourteen year marriage. The trial court granted the husband a divorce and divided the property. On appeal, the wife takes issue with the division of marital property, and the failure of the trial court to award her alimony or attorney's fees. For the following reasons, we affirm the judgment of the trial court in all respects.

Larry Ray vs. TN Farmers
W1999-00698-COA-R3-CV
Authoring Judge: Judge David R. Farmer
Trial Court Judge: Joseph H. Walker, III
Appellant had a fire insurance policy with Appellee which covered Appellant's dwelling and the contents therein. After a fire completely destroyed Appellant's home and all of the contents therein, Appellee refused to pay Appellant for his losses. Appellee declared the policy to be void ab initio due to material misrepresentations contained in the application for insurance. Jury returned a verdict in favor of Appellant, finding that Appellant did not make the misrepresentations with the intent to deceive the Appellee. The trial court directed a verdict for Appellee, holding that the misrepresentations were material and increased the Appellee's risk of loss. We reverse the directed verdict and remand.

John Haws Burrell vs. State
E1999-02762-CCA-R3-PC
Authoring Judge: Judge David H. Welles
Trial Court Judge: James B. Scott, Jr.
The Defendant, John Haws Burrell, appeals as of right from the dismissal of his petition for post-conviction relief. The trial court dismissed his petition without an evidentiary hearing as barred by the statute of limitations. The Defendant argues on appeal that the statute of limitations should not have expired until one year after certiorari had been denied by the United States Supreme Court. We affirm the judgment of the trial court dismissing the Defendant's post-conviction petition as time-barred.

State vs. Randy Lee Bowers
E2000-00585-CCA-R3-CD
Authoring Judge: Judge John Everett Williams
Trial Court Judge: R. Jerry Beck
After entering guilty pleas to possession of a Schedule VI controlled substance (marijuana); driving under the influence, third offense; and driving while his license was revoked, after a second or subsequent conviction for driving under the influence, the Criminal Court for Sullivan County conducted a sentencing hearing and then sentenced the defendant. The defendant contends that the trial court erred in ordering consecutive sentences and in failing to place him on probation after the service of the minimum sentence of one hundred-twenty days for DUI third offense. After careful review, we interpret the defendant's sentence to be three hundred-eighteen (318) days of full incarceration followed by four hundred fifty-five (455) days on supervised probation. Further, we affirm the denial of alternative sentencing.

State vs. Jerry L. Johns
E2000-00505-CCA-R3-CD
Authoring Judge: Judge David H. Welles
Trial Court Judge: Ray L. Jenkins
The Defendant, Jerry L. Johns, appeals from the order of the trial court dismissing his "Motion to Vacate Judgment" as barred by the statute of limitations. The trial court apparently treated the Defendant's motion as a petition for post-conviction relief. We hold that the trial court properly treated the Defendant's motion as a petition for post-conviction relief and that the motion was properly dismissed because it was barred by the statute of limitations, because another post-conviction petition had already been filed and resolved on the merits, and because the grounds for relief alleged by the Defendant had been previously determined. Accordingly, we affirm the judgment of the trial court.

State vs. Matau Goins
E2000-01159-CCA-R3-PC
Authoring Judge: Judge John Everett Williams
Trial Court Judge: James E. Beckner
The petitioner filed a petition for post-conviction relief alleging ineffective assistance of counsel. Specifically, the petitioner alleges that when his attorney informed him that a particular witness was going to testify against him he was scared into pleading guilty. We agree with the post-conviction court's findings that the plea was voluntarily, understandably, and intelligently made. We affirm the post-conviction court's dismissal of the petition.

Kenneth Lee Weston vs. State
E1999-02095-CCA-R3-CO
Authoring Judge: Judge David H. Welles
Trial Court Judge: E. Eugene Eblen
The Defendant, Kenneth Lee Weston, appeals as of right from the summary dismissal of his petition for writ of habeas corpus. He asserts that his convictions are void because the trial judge did not sign the court minutes reflecting the judgment. We hold that the failure of the trial judge to sign the court minutes does not render a judgment of conviction void. Accordingly, we affirm the judgment of the trial court.

State vs. Lester Parker
E2000-00282-CCA-R3-CD
Authoring Judge: Judge William B. Acree
Trial Court Judge: D. Kelly Thomas, Jr.
The defendant appeals from a jury trial conviction for criminal attempt to possess Schedule II controlled substance with intent to deliver. In the appeal, the defendant alleges that the evidence was insufficient to support the jury's verdict, the trial court erred in allowing a positive drug test of the defendant to be admitted into evidence, and the trial court erred in denying the defendant's motion to remand the case to the General Sessions Court for a preliminary hearing. We conclude that the issues presented for appeal are without merit and affirm the trial court.

State vs. Ronald Byrd
E2000-00118-CCA-R3-CD
Authoring Judge: Judge David H. Welles
Trial Court Judge: Phyllis H. Miller
The Defendant, Ronald W. Byrd, was convicted of criminal trespass, a Class C misdemeanor. In this appeal as of right, he asserts that the evidence was insufficient to support the conviction. We hold that the evidence was sufficient to support the conviction, and we affirm the judgment of the trial court.

State vs. Carlos Demetrius Harris
E2000-00718-CCA-R3-CD
Authoring Judge: Judge David H. Welles
Trial Court Judge: Stephen M. Bevil
The Defendant, Carlos Demetrius Harris, appeals as of right from his reckless homicide conviction. On appeal, he presents the following six issues: (1) whether the trial court erred by granting the State's motion to amend the indictment from voluntary manslaughter to reckless homicide; (2) whether the trial court erred by allowing inadmissible items into evidence; (3) whether the trial court erred by not allowing testimony by the Hamilton County Medical Examiner that an ordinary person would be unaware that one blow to the head would cause death; (4) whether the trial court erred by granting the State's jury instruction request regarding causation and intent; (5) whether the evidence was sufficient to support the conviction; and (6) whether the trial court erred by sentencing the Defendant to a term of six years and by denying the Defendant alternative sentencing. We find no reversible error; accordingly, we affirm the judgment of the trial court.

State vs. John Lee Dockery
E2000-00753-CCA-R3-CD
Authoring Judge: Judge David H. Welles
Trial Court Judge: Richard R. Baumgartner
The Defendant, John Lee Dockery, was convicted after a bench trial of fourth offense driving under the influence (DUI) and driving on a revoked license. In this appeal as of right, the Defendant argues that the trial court erred by admitting into evidence statements the Defendant made to the arresting officer before Miranda warnings were given and that the evidence was insufficient to support the DUI conviction. We conclude that the statements made by the Defendant were properly admitted and that the evidence was sufficient to support the convictions. The judgment of the trial court is affirmed.

State vs. Jeffrey Arch Carter
E2000-00738-CCA-R3-CD
Authoring Judge: Judge John Everett Williams
Trial Court Judge: Phyllis H. Miller
The defendant, after pleading guilty to two counts of aggravated assault, DUI second offense, and violation of seat belt law, sought alternative sentencing. A sentencing hearing was held and the trial court denied the defendant any form of alternative sentence. The defendant now appeals that denial, asserting that the trial court erred in denying him an alternative sentence. After review, we affirm the trial court's denial of an alternative sentence.

State vs. Christopher Knighton
E2000-00746-CCA-R3-CD
Authoring Judge: Judge William B. Acree
Trial Court Judge: D. Kelly Thomas, Jr.
The defendant was convicted by a jury of aggravated rape, aggravated burglary and theft. In his direct appeal, he presents six issues for review. Three of those issues concern the jury selection process, one issue is an evidentiary issue, and the other issues concern the sufficiency of the indictment and the sufficiency of the evidence. With respect to the jury selection process, we hold: the failure to raise the issue of a "Batson violation" during jury selection constitutes a waiver of that issue; the failure to swear the jury before voir dire is not reversible error unless it is shown that a juror did not truthfully answer the questions as the result of not being sworn; and the trial court did not abuse his discretion in refusing to dismiss two jurors for cause. Additionally, we hold that felony drug crimes are relevant to the issue of credibility under Tenn.R Evid. 609, and that under the facts of this case, the unfair prejudicial effect did not outweigh the probative value of the impeaching convictions. Finally, we hold that the indictment charging the defendant with aggravated rape was legally sufficient, and that the evidence was sufficient to support the verdict of the jury for that offense.