State v. Christopher M. Flake
W2001-00568-SC-R11-CD
Authoring Judge: Justice Frank F. Drowota, III
Trial Court Judge: Bernie Weinman

State v. Christopher M. Flake
W2001-00568-SC-R11-CD
Authoring Judge: Justice Frank F. Drowota, III
Trial Court Judge: Bernie Weinman

State v. Robert Tait
W2001-02157-SC-R11-CD
Authoring Judge: Justice Adolpho A. Birch, Jr.
Trial Court Judge: Joseph B. Dailey
We granted this interlocutory appeal pursuant to Rule 11 of the Tennessee Rules of Appellate Procedure to determine whether, in a prosecution commenced by an arrest warrant for driving under the influence of an intoxicant, the resulting indictment may charge the defendant for offenses that can be inferred from the arrest warrant. The arrest warrant charged the appellant, Robert Tait, with driving under the influence of an intoxicant, and the grand jury indicted him for that offense (count one) and for driving with a blood-alcohol concentration of .10 percent or more (count two). The trial court dismissed the second count, finding that it described a new and additional charge and was, therefore, barred by the applicable one-year statute of limitations because its prosecution had been commenced more than one year after the conduct occurred. The Court of Criminal Appeals reversed, concluding that the second count merely constituted an alternative theory for conviction and did not charge an offense distinct from that for which the appellant was initially charged. After reviewing the record and controlling legal authority, we hold that the language of the warrant sufficiently tolled the limitations period for count two. Therefore, we affirm the holding of the Court of Criminal Appeals and remand this case to the trial court for further proceedings.

State of Tennessee v. Gdongalay P. Berry
M2001-02023-CCA-R3-DD
Authoring Judge: Judge David G. Hayes
Trial Court Judge: Judge J. Randall Wyatt, Jr

[Deleted: Introductory Paragraph]

Tenn. R. App. P. 3; Judgment of the Criminal Court Affirmed.

DAVID G. HAYES, J., delivered the opinion of the court, in which JERRY L.  SMITH and JOHN EVERETT WILLIAMS, JJ., joined.
 

Judy Burroughs v. Robert W. Magee
W2001-00238-SC-R11-CV
Authoring Judge: Justice William M. Barker
Trial Court Judge: Joseph H. Walker, III

Judy Burroughs v. Robert W. Magee
W2001-00238-SC-R11-CV
Authoring Judge: Justice William M. Barker
Trial Court Judge: Joseph H. Walker, III

State of Tennessee v. Gabor Palasti
E2001-01642-CCA-R3-CD
Authoring Judge: Judge Jerry L. Smith
Trial Court Judge: Judge Douglas A. Meyer

The defendant, Gabor Palasti, was convicted upon his pleas of guilty to the charges of vehicular assault and three counts of reckless endangerment. He originally received a four year effective sentence with 11 months, 29 days of incarceration followed by probation. This was ultimately altered by the trial judge to require that the defendant serve six (6) months in confinement with thirty days of continuous confinement followed by five months of work release and then supervised probation. In this appeal the defendant contends he should have received full probation for these offenses and he cites numerous alleged deficiencies in the trial court's sentencing procedures. We find that in sentencing the defendant the trial court failed to make appropriate findings on the record and that therefore our review of the defendant's sentence is de novo without a presumption of correctness. Nevertheless, we find that the record contains sufficient evidence from which this Court concludes that six (6) months confinement of the defendant is appropriate. However, we believe the entire confinement should be served on work release. We therefore AFFIRM the decision of the trial court with the modification that the entire period of incarceration be served on work release.

Evan Roberts vs. Miller Industries
E2002-01726-COA-R3-CV
Authoring Judge: Judge Houston M. Goddard
Trial Court Judge: W. Frank Brown, III
In this appeal from the Chancery Court for Hamilton County the Appellants/Defendants, Miller Industries, Inc. and Road One, Inc., contend that the Trial Court erred in awarding the Appellee/ Plaintiff, Evan J. Roberts, damages for breach of contract. The judgment of the Trial Court is affirmed in part and reversed and vacated in part, and the cause is remanded for collection of costs below.

Tony Allen Leonard v. State of Tennessee
E2002-00953-CCA-R3-PC
Authoring Judge: Judge James Curwood Witt, Jr.
Trial Court Judge: Judge R. Jerry Beck

Following an evidentiary hearing, the Sullivan County Criminal Court denied the petitioner, Tony Allen Leonard, post-conviction relief. On appeal, the petitioner claims that the post-conviction court erred in failing to find that his trial counsel rendered ineffective assistance. Because the record supports the lower court's findings and holding, we affirm.

State of Tennessee v. Eric Alonzo Smith
M2002-01077-CCA-R3-CD
Authoring Judge: Presiding Judge Gary R Wade
Trial Court Judge: Judge Michael R. Jones

The defendant, Eric Alonzo Smith, was convicted of driving on a revoked license, aggravated robbery, and evading arrest. The trial court imposed concurrent sentences of 6 months, 8.5 years, and 11 months, 29 days, respectively. In this appeal of right, the defendant asserts that the evidence is insufficient to support the conviction for aggravated robbery. The judgments of the trial court are affirmed.

State of Tennessee v. Toby P. Leonard
M2002-01328-CCA-R3-CD
Authoring Judge: Presiding Judge Gary R Wade
Trial Court Judge: Judge Stella L. Hargrove

The defendant, Toby P. Leonard, entered pleas of guilt to aggravated assault and civil rights intimidation. As a part of the plea agreement, the defendant received Range I, consecutive sentences of six and two years, respectively, for an effective sentence of eight years. The trial court denied probation. In this appeal of right, the defendant argues that he should have been granted an alternative sentence. The judgment is affirmed.

Austin Eugene Lineback v. State of Tennessee
W2002-01938-CCA-R3-PC
Authoring Judge: Judge J. Curwood Witt, Jr.
Trial Court Judge: Judge Joseph H. Walker, III

Through a 2001 Tipton County Circuit Court post-conviction petition, Austin Eugene Lineback challenges his 2001 convictions in that court of statutory rape and especially aggravated sexual exploitation of a minor. The convictions resulted from his guilty pleas, which the petitioner now
alleges are involuntary and unknowing due to ineffective assistance of counsel. Following an evidentiary hearing, the lower court denied post-conviction relief, and the petitioner now appeals.  Upon our review of the record, the parties’ briefs, and the applicable law, we affirm.

Buford Prince v. City of Tullahoma,
M2002-00619-WC-R3-CV
Authoring Judge: Joe C. Loser, Jr., Sp. J.
Trial Court Judge: John W. Rollins, 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 employee insists (1) the trial court erred in limiting his award of disability benefits to the maximum of 4 weeks times his weekly compensation rate and (2) the trial court erred in applying his award of temporary total disability benefits against the maximum. As discussed below, the panel finds no reversible error. Tenn. Code Ann. _ 5-6-225(e) (22 Supp.) Appeal as of Right; Judgment of the Circuit Court Affirmed JOE C. LOSER, JR., SP. J., in which ADOLPHO A. BIRCH, JR., J., and JOHN K. BYERS, SR. J., joined. Rick L. Moore, Tullahoma, Tennessee, for the appellant, Buford Prince Dale A. Tipps, Nashville, Tennessee, for the appellees, City of Tullahoma and AIU Insurance Company MEMORANDUM OPINION The employee or claimant, Mr. Prince, sought workers' compensation benefits from his employer, City of Tullahoma, and its insurer, AIU, for a work related injury. At the conclusion of the trial, the trial court awarded the claimant permanent partial disability benefits based on 8 percent to the body as a whole, which equates to 32 weeks of benefits at the claimant's compensation rate of $353.33, or $113,65.6. The employee has appealed. Appellate review is de novo upon the record of the trial court, accompanied by a presumption of correctness of the findings of fact, unless the preponderance of the evidence is otherwise. Tenn. Code Ann. _ 5-6-225(e)(2). The reviewing court is required to conduct an independent examination of the record to determine where the preponderance of the evidence lies.

Lucille Cotham, et al. v. Perry County, Etc.
M2002-01723-WC-R3-CV
Authoring Judge: Joe C. Loser, Jr. Sp. J.
Trial Court Judge: Timothy L. Easter, 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 appellants insist the trial court erred in summarily dismissing the claim. As discussed below, the panel has concluded there is no genuine issue as to a material fact and that the employer is entitled to judgment of dismissal as a matter of law. Tenn. Code Ann. _ 5-6-225(e) (22 Supp.) Appeal as of Right; Judgment of the Circuit Court Affirmed JOE C. LOSER, JR. SP. J., in which ADOLPHO A. BIRCH, JR., J., and JOHN K. BYERS, SR. J., joined. Gene Hallworth, Columbia, Tennessee, for the appellant, Pamela J. Honey Robert E. Kolarich and L. R. DeMarco, Nashville, Tennessee, for the appellant, Lucille Cotham Bradford D. Box and Geoffrey A. Lindley, Jackson, Tennessee, for the appellees, Perry County and Perry County Sheriff's Department MEMORANDUM OPINION This civil action to recover workers' compensation benefits was initiated by the former wife, Pamela Jean Honey, of the deceased employee, Ricky Dale Cotham, to recover workers' compensation benefits for two of his dependent children. His widow, Lucille Cotham, intervened. The trial court granted summary judgment of dismissal. The plaintiff and intervening plaintiff have appealed. The standard of review on appeal of a grant of summary judgment is de novo upon the record without a presumption of correctness to determine whether the absence of genuine and material factual issues entitle the movant to a judgment as a matter of law. Goodloe v. State, 36 S.W.3d 62, 65 (Tenn. 21). The movant must either affirmatively negate an essential element of the non- movant's claim or conclusively establish an affirmative defense. Mere conclusory assertions that the non-movant has no evidence are insufficient; and if the movant does not negate a claimed basis for the suit, the non-movant's burden to produce evidence establishing the existence of a genuine issue for trial is not triggered and the motion for summary judgment must fail. If, however, the movant successfully negates a claimed basis for the suit, the non-movant may no longer simply rely upon the pleadings, but must then establish the existence of the essential elements of the claim or the non-existence of the defense. Finister v. Humboldt General Hosp., Inc., 97 S.W.2d 435, 438 (Tenn. 1998). The complaint avers that the deceased employee, Mr. Cotham was killed in an automobile accident which arose out of and in the course of his employment as a deputy sheriff. The employer answered that the injury did not occur in the course of employment because the employee was off duty and on his way home from work at the time of the accident. The undisputed evidence presented before the trial court was that on the day of the accident, the employee was scheduled to work from 7: a.m. to 5: p.m.. Near the end of the shift, he returned his patrol car, went off duty, picked up his personal vehicle and headed home. On his way home, still armed and in uniform, Deputy Cotham was involved in a fatal accident. The appellants contend that it could be inferred from the facts that the employee was in the course of employment at the time of the accident, because a police officer is on call at all hours. However, our examination of the record reveals no evidence that Deputy Cotham was responding to a call when the accident occurred. He was simply on his way home after work The appellee relies on the general rule that employees are not covered by the Workers' Compensation Act while traveling to and from work. However, in Mayor and Alderman of Town of Tullahoma v. Ward, 173 Tenn. 91, 114 S.W.2d 84 (1937), cited by the appellants, the Court held that a police officer, who was killed by a drunk driver while walking home from work, was entitled to workers' compensation benefits. In that case, the Supreme Court, finding material evidence to support the trial court's finding that Ward was on duty at the time of his fatal accident, affirmed an award of benefits. The case is clearly distinguishable from the one before this tribunal, as the trial court duly noted, on the facts. Summary judgment is almost never an option in workers' compensation cases. Berry v. Consolidated Systems, Inc., 84 S.W.2d 445, 446 (Tenn. 1991). However, when there is no dispute over the evidence establishing the facts that control the application of a rule of law, summary judgment is an appropriate means of deciding such issues as whether an action is barred by the applicable statute of limitations or by res judicata; whether a party has standing; or whether the court has jurisdiction. Id at 446. -2-

State of Tennessee v. Abron A. Coleman
W2002-01785-CCA-R3-CD
Authoring Judge: Judge J. Curwood Witt, Jr.
Trial Court Judge: Judge Bernie Weinman

Aggrieved that his Shelby County jury conviction of aggravated robbery is not supported by sufficient evidence, Abron A. Coleman, the defendant, appeals. Because we conclude that the evidence is sufficient, we affirm the conviction.

State of Tennessee v. Paul Anthony Wright
W2001-02574-CCA-R3-CD
Authoring Judge: Judge Alan E. Glenn
Trial Court Judge: Judge William B. Acree

The defendant, Paul Anthony Wright, pled guilty in the Obion County Circuit Court to manufacturing methamphetamine, a Class C felony, and was sentenced as a Range I, standard offender to three years, with ninety days to be served in the county jail and the remainder in a community corrections program. As a condition of his guilty plea, the defendant sought to reserve as a certified question of law whether the trial court erred in finding there was probable cause to issue a search warrant for his property. On appeal, the defendant argues that he properly certified the question for appeal whether the trial court erred in concluding that the search warrant sufficiently established probable cause for the search of his premises. We agree with the defendant that the certified question is properly before this court and agree with the State that the trial court properly determined that the search warrant was adequate. Accordingly, we affirm the order of the trial court.

State of Tennessee v. Wendell Ray Williams - Dissenting
M2001-02296-CCA-R3-CD
Authoring Judge: Judge David G. Hayes
Trial Court Judge: Judge Cheryl A. Blackbur

The majority concludes that reversal is necessitated based upon (1) failure to instruct the jury on facilitation and (2) error in admitting into evidence the defendant's prior felony drug conviction for purposes of impeachment. Because I am unable to join on either point, I must respectfully dissent.

State of Tennessee v. Wendell Ray Williams
M2001-02296-CCA-R3-CD
Authoring Judge: Judge Joseph M. Tipton
Trial Court Judge: Judge Cheryl A. Blackburn
A Davidson County Criminal Court jury convicted the defendant, Wendell Ray Williams, of possessing one-half gram or more of cocaine with intent to sell, a Class B felony, and the trial court sentenced him as a Range III, persistent offender to twenty-five years in the Department of Correction (DOC). The defendant appeals, claiming that the trial court erred by (1) denying his motion to suppress evidence; (2) allowing a police officer to testify as an expert in drug investigation; (3) admitting evidence of the facts underlying his 1995 conviction for selling cocaine under Tenn. R. Evid. 404(b); (4) allowing the state to impeach him with his prior convictions for selling cocaine, car theft, and passing forged papers under Tenn. R. Evid. 609; and (5) refusing to instruct the jury on the lesser included offense of facilitation. We conclude that the trial court erred by admitting evidence of the defendant’s involvement in the 1995 cocaine sale and allowing the state to impeach the defendant with his resulting conviction. In addition, we conclude that the trial court erred by refusing to instruct the jury on facilitation. We reverse the judgment of the trial court and remand the case for a new trial.

State of Tennessee v. Leroy Nevils
M2002-00411-CCA-R3-CD
Authoring Judge: Judge John Everett Williams
Trial Court Judge: Judge Donald P. Harris
The defendant was convicted of driving while under the influence of an intoxicant, a Class A misdemeanor. He appeals that conviction, raising the following issues: (1) Sufficiency of the evidence and the proper standard of review when a recording of the trial is available for the reviewing court; (2) Improper return of the presentment; (3) Duplicitous presentment; (4) Improper limitation on voir dire questions concerning potential length of incarceration; (5) Improper limitation on voir dire questions whether jurors would trust a machine; (6) Improper elicitation of an alcohol testing flashlight; (7) Improper jury charge as to the certainty needed to find beyond a reasonable doubt; and (8) Improper jury charge allowing inference of guilt for refusing a blood alcohol test.  After careful review of the record, we affirm the judgment from the trial court.

State of Tennessee v. Percy Wade Cockrill
M2002-00761-CCA-R3-CD
Authoring Judge: Judge David H. Welles
Trial Court Judge: Judge Steve R. Dozier

The Defendant, Percy Wade Cockrill, pled guilty to six counts of robbery. After a hearing, the trial court sentenced the Defendant as a Range I offender to four years each on three of the robberies, and to five years each on the remaining three robberies. The trial court further ordered the five-year sentences to run consecutively to each other, for an effective sentence of fifteen years to be served in the Department of Correction. The Defendant now challenges the length of each term as well as the imposition of consecutive sentences. We affirm the judgment of the trial court.

State of Tennessee v. Samuel L. Giddens
M2002-00163-CCA-R3-CD
Authoring Judge: Judge David H. Welles
Trial Court Judge: Judge Timothy L. Easter
Following a jury trial, the Defendant, Samuel L. Giddens, was convicted of facilitation of possession of heroin with the intent to sell or deliver and possession of cocaine with the intent to sell or deliver.  In this appeal as of right, the Defendant raises the following four issues: (1) whether the trial court erred by allowing law enforcement officers to testify regarding factual indications that a person possesses drugs with the intent to sell, rather than for personal use; (2) whether the trial court erred by admitting testimony regarding prior drug transactions conducted by the Defendant; (3) whether the evidence is sufficient to sustain his two convictions; and (4) whether he was entitled to a mistrial due to a statement made by the prosecutor during closing argument. We affirm the judgment of the trial court.

Royden Russell vs. Malvin L. Bray, et al.
E2002-02153-COA-R9-CV
Authoring Judge: Judge David Michael Swiney
Trial Court Judge: Chancellor John S. McLellan, III

Royden Russell and Judy Russell ("Plaintiffs") entered into a contract with Malvin L. Bray and Diedre Bray ("Sellers") to purchase a house. The sales contract required Plaintiffs to obtain an inspection by a professional home inspector. Plaintiffs hired Randall L. Douthat and Holly Douthat d/b/a The HomeTeam Inspection Service ("Defendants") to perform the home inspection. Royden Russell signed a form contract ("Contract") presented by Defendants. The Contract contained an exculpatory clause limiting Defendants' liability to the lesser of the cost of repair or the amount of the inspection fee. After moving into the house, Plaintiffs discovered structural problems. Plaintiffs sued Sellers, the realtors involved in the sale of the house, and Defendants. Plaintiffs filed a motion for partial summary judgment concerning the exculpatory clause contained in the Contract. Defendants responded by filing a Renewed Motion for Summary Judgment concerning, in part, the exculpatory clause. The Trial Court held the exculpatory clause was not against public policy and was enforceable. The Trial Court also granted Plaintiffs permission to file an interlocutory appeal. Plaintiffs applied to this Court and were granted an interlocutory appeal on the limited issue of whether the Trial Court erred in holding the exculpatory clause was not against public policy. We reverse.

State of Tennessee v. Charles Hinkle
W2002-00453-CCA-R3-CD
Authoring Judge: Judge John Everett Williams
Trial Court Judge: Judge C. Creed Mcginley

The defendant was found guilty by a jury of reckless endangerment with a deadly weapon, vandalism up to five hundred dollars ($500), and public intoxication. The trial court sentenced the defendant as a Range I standard offender to a term of two years for reckless endangerment, eleven months and twenty-nine days for vandalism, and thirty days for public intoxication. These sentences were to run concurrently and were to be served in confinement in the county jail. The trial court rejected alternative sentencing. The defendant contends his sentence is excessive. Because the defendant failed to include the trial transcript, we are unable to conduct an adequate appellate review. Therefore, we presume the trial court correctly sentenced the defendant and affirm the judgments of the trial court.

State of Tennessee v. Carlton Lee McAlister
W2002-00454-CCA-R3-CD
Authoring Judge: Judge John Everett Williams
Trial Court Judge: Judge C. Creed McGinley

The defendant appeals his conviction for DUI - second offense and his sentence of sixty days. The defendant contends the evidence is insufficient to sustain his conviction, more specifically that he was not impaired while driving or on a public road. The defendant also argues that his sentence of sixty days is excessive. We conclude the evidence is sufficient to sustain his conviction. The defendant failed to include the sentencing hearing transcript, thus barring this Court from reviewing his argument concerning sentencing. We affirm the judgment from the trial court as modified.

State of Tennessee v. Robert L. Trocsch
E2002-00359-CCA-R3-CD
Authoring Judge: Judge Norma McGee Ogle
Trial Court Judge: Judge E. Eugene Eblen

The appellant, Robert L. Trocsch, was convicted in the Roane County Criminal Court of one count of burglary and two counts of theft. He received a total effective sentence of eight years incarceration in the Tennessee Department of Correction. On appeal, the appellant contests the sufficiency of the evidence supporting his convictions and alleges that the trial court improperly performed its function as thirteenth juror. Upon review of the record and the parties' briefs, we affirm the judgments of the trial court.