Jerry Burke v. State of Tennessee
W2001-01700-CCA-MR3-PC
Authoring Judge: Judge Joseph M. Tipton
Trial Court Judge: Judge John P. Colton, Jr.

The petitioner, Jerry Burke, appeals the Shelby County Criminal Court's denial of his petition for post-conviction relief, claiming that he received the ineffective assistance of counsel. He contends that his trial attorney was ineffective for (1) failing to request a mental evaluation; (2) failing to investigate his case; and (3) failing to subpoena witnesses and cross-examine witnesses adequately. We affirm the trial court's denial of the petition.

State of Tennessee v. William Lee Clifton
W2002-00661-CCA-R9-CD
Authoring Judge: Judge Joe G. Riley
Trial Court Judge: Judge C. Creed McGinley

In this interlocutory appeal, the defendant seeks review of the state's denial of pretrial diversion for the offense of sexual battery. We conclude that the prosecutor failed to consider and weigh all relevant factors and, under the circumstances of this case, improperly relied upon the defendant's refusal to take responsibility for his actions. Accordingly, we reverse the order of the trial court and remand this matter to the district attorney general for further consideration of the defendant's request for pretrial diversion in accordance with this opinion.

Kong C. Bounnam v. State of Tennessee
W2001-02603-CCA-R3-PC
Authoring Judge: Judge Alan E. Glenn
Trial Court Judge: Judge Bernie Weinman

The petitioner appeals the post-conviction court's denial of his petition for post-conviction relief from his convictions in the Shelby County Criminal Court for three counts of felony murder and four counts of robbery with a deadly weapon. On appeal, he contends that: (1) the trial court committed plain error by failing to instruct the jury on the lesser-included offenses of facilitation, reckless homicide, and criminally negligent homicide; and (2) his trial counsel provided ineffective assistance of counsel at trial and on direct appeal. We affirm the post-conviction court's denial of the petition for post-conviction relief.

Michael Joseph Spadafina v. State of Tennessee
W2001-02554-CCA-R3-CD
Authoring Judge: Judge Joe G. Riley
Trial Court Judge: Judge Julian P. Guinn

The petitioner appeals from the denial of his writ of error coram nobis. In this appeal, he argues his first degree murder conviction should be set aside because his co-defendant, who testified against the petitioner at trial, recanted his testimony prior to the co-defendant's death. Following a hearing, the trial court denied the petition. We affirm the judgment of the trial court.

State of Tennessee v. Robert S. Neal
M2001-00441-CCA-R3-CD
Authoring Judge: Judge Joseph M. Tipton
Trial Court Judge: Judge Leon C. Burns, Jr.
The defendant, Robert S. Neal, appeals as of right his convictions by a Putnam County jury of vehicular homicide, reckless endangerment, and child endangerment. He contends (1) that the evidence is insufficient to sustain his convictions, (2) that the trial court erroneously admitted laboratory test results regarding the presence of cocaine in his body, (3) that a Tennessee Bureau of Investigation (TBI) forensic scientist was not qualified to testify about the metabolism of cocaine, and (4) that his sentence is excessive. We merge the two child endangerment convictions pursuant to the Double Jeopardy Clause and affirm the judgments of conviction in all other respects.

John T. King v. Anne B. Pope
M2000-02127-SC-R11-CV
Authoring Judge: Justice Frank F. Drowota, III
Trial Court Judge: Chancellor Ellen Hobbs Lyle

Davidson County -In this case, we must decide whether a pay telephone sale-leaseback program marketed and sold by the plaintiff constitutes an investment contract, and thus a security under the Tennessee Securities Act of 1980. In finding that the program was a security, the trial court applied the definition of "investment contract" adopted by the Court of Criminal Appeals in State v. Brewer, 932 S.W.2d 1 (Tenn. Crim. App.), perm. app. denied (Tenn. 1996). Under this test, an investment contract exists where (1) An offeree furnishes initial value to an offeror, and (2) a portion of this initial value is subjected to the risks of the enterprise, and (3) the furnishing of the initial value is induced by the offeror's promises or representations which give rise to a reasonable understanding that a valuable benefit of some kind, over and above the initial value, will accrue to the offeree as a result of the operation of the enterprise, and (4) the offeree does not receive the right to exercise practical and actual control over the managerial decisions of the enterprise. Brewer, 932 S.W.2d at 11 (quoting State v. Hawaii Market, 485 P.2d 105, 109 (Haw. 1971)). The Court of Appeals rejected the Brewer test and instead adopted the federal test for determining whether a particular transaction is an investment contract. See United Hous. Found., Inc. v. Forman, 421 U.S. 837 (1975); SEC v. W.J. Howey Co., 328 U.S. 293 (1946). Applying this test, the Court of Appeals held that the pay telephone sale-leaseback program at issue in this case is not a security. After careful consideration, we agree with the trial court's finding that the appropriate test for determining the presence of an investment contract is set forth in Brewer. Applying this test, we agree with the trial court that the plaintiff's payphone sale-leaseback program is an investment contract and that the plaintiff was thus marketing and selling unregistered securities in violation of Tennessee law.

The Tennessee Department of Health, et al. v. Gary C. Boyle, M.D., et al.
M2001-01738-COA-R3-CV
Authoring Judge: Judge Ben H. Cantrell
Trial Court Judge: Irvin H. Kilcrease, Jr.
The issue in this case is the constitutionality of a Tennessee statute requiring a private clinic that performs a "substantial number" of abortions to acquire a certificate of need from the Health Facilities Commission and a license from the Department of Health. The Chancery Court of Davidson County upheld the statute, enjoined the defendants from operating without a certificate and a license, and imposed substantial monetary sanctions for civil contempt. We hold that the statute violates relevant provisions of the United States and Tennessee Constitutions. We therefore reverse the judgment below and dismiss the contempt charge.

The Estate of Alline Elizabeth Glasgow, Clarence E. Biggs, et al. v. Virgil S. Whittum, et al.
M2001-02263-COA-R3-CV
Authoring Judge: Judge William B. Cain
Trial Court Judge: C. L. Rogers
Proponents appeal judgment of the trial court on a jury verdict against the Will on a finding of undue influence by the proponents upon the testatrix. We affirm the judgment of the trial court.

State of Tennessee v. Glenda Ponder
M2002-00488-CCA-R3-CD
Authoring Judge: Judge J. Curwood Witt, Jr.
Trial Court Judge: Judge Leon C. Burns, Jr.

Glenda Ponder appeals the DeKalb County Criminal Court's revocation of her probationary sentence and ordering into effect her incarcerative sentence in the Department of Correction. Upon review, we are unpersuaded that the lower court abused its discretion and therefore affirm.

John Jay Hooker v. Don Sundquist, et al.
M2002-01207-COA-R3-CV
Authoring Judge: Judge David R. Farmer
Trial Court Judge: Thomas W. Brothers
This case involves an appeal from an order denying a motion for Rule 11 sanctions. We reverse and remand.

First National Bank of Chicago, et al. v. Cumberland Bend Investors, L.P., et al.
M2000-00001-COA-R3-CV
Authoring Judge: Judge William C. Koch, Jr.
Trial Court Judge: Ellen Hobbs Lyle
This appeal involves a dispute between a buyer and a seller of commercial property in Nashville over the buyer's obligation to indemnify the seller for legal expenses incurred in a successful defense of a suit for commissions filed by the former manager of the property. The seller filed suit in the Chancery Court for Davidson County seeking to recover its legal expenses from the buyer under the theories of indemnification and contribution. The trial court granted the buyer's motion for summary judgment and dismissed the complaint because the seller failed to prove that it had an express or implied right to indemnification and because, as a matter of law, contribution was inappropriate under the circumstances. We concur and, therefore, affirm the trial court's dismissal of the complaint.

Gloria B. Lane v. W.J. Curry & Sons
W2000-01580-SC-R11-CV
Authoring Judge: Justice Frank F. Drowota, III
Trial Court Judge: Judge Robert L. Childers

We granted review in this case to determine whether a landowner can bring a nuisance action against an adjoining landowner when tree branches and roots from the adjoining landowner's property encroach upon and damage the neighboring landowner's property. The plaintiff asserts that encroaching branches and roots from the defendant's trees constitute a nuisance for which she is entitled to seek damages. The defendant responds that the plaintiff's sole remedy is self-help and, therefore, the plaintiff may not recover for any harm caused by the defendant's trees. The trial court and Court of Appeals agreed with the defendant, and held that an adjoining landowner's only remedy is self-help and that a nuisance action cannot be brought to recover for harm caused by encroaching tree branches and roots. We have determined that self-help is not the sole remedy of an adjoining landowner and that a nuisance action may be brought when tree branches and roots from the adjacent property encroach upon and damage the neighboring landowner's property. Although encroaching trees and plants are not nuisances merely because they cast shade, drop leaves, flowers, or fruit, or just because they encroach upon adjoining property either above or below the ground, they may be regarded as a nuisance when they cause actual harm or pose an imminent danger of actual harm to adjoining property. If so, the owner of the tree or plant may be held responsible for harm caused by it and may also be required to cut back the encroaching branches or roots, assuming the encroaching vegetation constitutes a nuisance. We do not, however, alter existing Tennessee law that the adjoining landowner may, at his own expense, cut away the encroaching vegetation to the property line whether or not the encroaching vegetation constitutes a nuisance or is otherwise causing harm or potential harm to the adjoining property. We further find that the record in this case is sufficient to establish liability for nuisance. Accordingly, the judgment of the Court of Appeals affirming the trial court's dismissal of the case is reversed. The case is remanded to the trial court for a determination of damages and other appropriate relief.

James Ward vs. Susan Ward
W2001-01078-COA-R3-CV
Authoring Judge: Judge Don R. Ash
Trial Court Judge: Walter L. Evans
Mr. James Ward filed a Compliant for divorce on July 31, 1998. Mrs. Ward filed a Counter-Complaint for Absolute Divorce on November 30, 2000. The trial was held February 19, 2001 through February 22, 2001 and continued March 1, 2001 to March 2, 2001. On March 2, the Chancellor issued findings of fact and divided the marital property. Mrs. Ward asked the court to find Mr. Ward dissipated approximately $107,355 in marital assets, and requested the court award her attorney's fees as well as litigation expenses because the search for hidden funds resulted in a large portion of her attorney's fees. The Chancellor determined Mr. Ward did not dissipate marital assets, and denied the request for attorney's fees. The chancellor entered the final decree of divorce on April 6, 2001. This appeal followed.

Joanne Carter v. First Source Furniture Group
W2001-01849-SC-WCM-CV
Authoring Judge: Justice Frank F. Drowota, III
Trial Court Judge: Chancellor Martha B. Brasfield

In this workers' compensation case, we granted the defendant's motion for review pursuant to Tennessee Code Annotated section 50-6-225(e) primarily to determine whether the trial court erred by finding that the two and one-half times cap on the permanent partial disability award set forth in Tennessee Code Annotated section 50-6-241(a)(1) did not apply, where the plaintiff was fired by the employer for gross misconduct prior to being treated for her injury. We hold that an employer should be permitted to enforce workplace rules without being penalized in a workers' compensation case. Thus, the trial court erred in refusing to apply the two and one-half times cap found in Tennessee Code Annotated section 50-6-241(a)(1). Furthermore, under our review, where expert medical testimony is by deposition, we may draw our own conclusions about the weight and credibility to be given to the medical testimony. Given the disagreement between the evaluating and treating physicians over the surgical procedure performed on the plaintiff, we are of the opinion that the physician who actually performed the surgery was better situated to understand and rate the resulting impairment. We adopt the medical impairment rating of the treating physician, equating to 6% to the body as a whole and set the plaintiff's permanent partial disability at 15% to the body as a whole.

State of Tennessee v. Dondie Tidwell
M2000-2628-CCA-R3-CD
Authoring Judge: Judge Jerry L. Smith
Trial Court Judge: Judge James K. Clayton, Jr.

A Rutherford County jury convicted the defendant, Dondie Eugene Tidwell, of two counts of first degree murder, one count of conspiracy to commit first degree murder, one count of especially aggravated kidnapping, and one count of theft over $10,000. The trial court merged the defendant’s two first degree murder convictions and ordered the defendant to serve twenty-three years for his conspiracy to commit first degree murder conviction, twenty-three years for his especially aggravated kidnapping conviction, and four years and six months for his theft conviction.  The trial court ordered these sentences to run concurrently to each other and consecutively to the defendant’s sentence for his merged first degree murder conviction, life without the possibility of parole. Thus, the defendant received an aggregate sentence of life without the possibility of parole plus twenty-three years. The defendant now brings this appeal, challenging his convictions and his sentence on the bases that (1) the trial court erred by refusing to allow him to excuse a juror using a peremptory challenge; (2) the evidence introduced at trial is insufficient to support his convictions; (3) the prosecutor made inappropriate comments when delivering the state’s opening statement; (4) the trial court erred by allowing an expert to testify on subjects beyond the scope of that witness’s expertise; (5) the trial court erred by refusing to allow him to introduce evidence of the drugs that were present in the victim’s system at the time of the victim’s death; (6) the trial court instructed the jury incorrectly on the charge of conspiracy; (7) the trial court erred by admitting a photograph of the victim taken after the victim’s death during the sentencing phase of the trial; (8) the trial court erred by refusing, in the sentencing phase, to allow the defendant to compare his potential sentence to the sentence received by his co-conspirator; (9) the trial court erred by allowing the introduction of certain hearsay evidence; (10) the prosecutor exceeded the permissible scope of his rebuttal closing argument; and (11) the trial court erred by imposing consecutive sentencing. After reviewing the record, we find that the trial court did err by refusing to allow the defendant to exercise a peremptory challenge and that therefore the defendant is entitled to a new trial on this basis.
However, we find that the remainder of the issues presented in this appeal have either been waived or lack merit.

State of Tennessee v. Joel Christian Parker
M2001-00773-CCA-R3-CD
Authoring Judge: Judge Jerry L. Smith
Trial Court Judge: Judge Leon C. Burns, Jr.

On February 2, 2000, the defendant was convicted by a jury of the offense of aggravated robbery. He received a sentence of nine years in the state penitentiary. In this appeal he raises eight (8) issues for our review: (1) whether the evidence is sufficient to support the verdict; (2) whether the defendant was tried by a fair and impartial jury; (3) whether the trial court committed reversible error in failing to instruct the jury on the offenses of assault or aggravated assault; (4) whether there was prosecutorial misconduct; (5) whether the defendant was subjected to a constitutionally flawed show-up shortly after the robbery; (6) whether the trial court correctly instructed the jury as to what they must do if they have a reasonable doubt that the defendant possessed the requisite mental state for the offense; (7) whether the trial court should have dismissed the case because the state destroyed evidence fundamental to the defense; (8) whether the defendant's sentence is excessive.

State of Tennessee v. William Marvin Brown
M2001-02287-CCA-R3-CD
Authoring Judge: Judge Joseph M. Tipton
Trial Court Judge: Judge W. Charles Lee
The defendant, William Marvin Brown, appeals as of right his conviction by a Marshall County Circuit Court jury for child rape, a Class A felony, and the resulting twenty-three-year, nine-month sentence. He contends that the evidence is insufficient to identify him as the perpetrator of the crime and that the trial court erroneously failed to apply mitigating factors, which resulted in an excessive sentence. We affirm the judgment of conviction.

State of Tennessee v. Ricky Lee Inscore
E2002-01005-CCA-R3-CD
Authoring Judge: Judge Joe G. Riley
Trial Court Judge: Judge R. Jerry Beck

The defendant, Ricky Lee Inscore, pled nolo contendere to aggravated burglary and sexual battery. The Sullivan County trial court sentenced the defendant to three years for aggravated burglary and two years for sexual battery as a Range I standard offender to be served concurrently in the Department of Correction. In this appeal of right, the defendant presents the issue of whether the trial court erred in denying him probation or alternative sentencing. After reviewing the record, we affirm the judgments of the trial court.

State of Tennessee v. Joseph Jackson Jr.
W2001-02779-CCA-R3-CD
Authoring Judge: Judge John Everett Williams
Trial Court Judge: Judge Arthur T. Bennett

Defendant attempted to shoot and kill Johnny Maxwell, missed, and accidentally shot twelve-year-old Brittney Taylor, seriously injuring her. A jury convicted the defendant of attempted first degree murder of Maxwell and attempted first degree murder of Taylor. He appeals, claiming the trial court erroneously charged the jury, relative to the doctrine of transferred intent; that double jeopardy bars convictions of both offense; and the evidence was insufficient to sustain the attempted first degree murder convictions. We agree and affirm both convictions.

State of Tennessee v. Richard Bokanper
W2002-00748-CCA-R3-CD
Authoring Judge: Judge J. Curwood Witt, Jr.
Trial Court Judge: Judge James C. Beasley, Jr.

The defendant, Richard Bokanper, appeals his Shelby County Criminal Court jury convictions of burglary and theft. Following the guilty verdicts, the trial court sentenced the defendant as a career offender to an effective term of twelve years in the Department of Correction. On appeal, the defendant challenges only the sufficiency of the convicting evidence. Because the evidence insufficiently corroborates the inculpative testimony of an accomplice, we reverse the convictions and dismiss the charges.

James Darrell Horn v.State of Tennessee
E2001-02616-CCA-R3-PC
Authoring Judge: Judge J. Curwood Witt, Jr.
Trial Court Judge: Judge R. Jerry Beck

The petitioner, James Darrell Horn, appeals the Sullivan County Criminal Court's denial of post-conviction relief. In his post-conviction petition, the petitioner challenged his jury convictions on more than 30 aggravated burglary counts and nearly as many theft counts. As a result of his many convictions, the petitioner is serving an effective 90-year sentence in the Department of Correction. On direct appeal, his convictions and sentences were affirmed by this court. See State v. James D. Horn, No. 03C01-9712-CR-00537 (Tenn. Crim. App., Knoxville, Jul. 20, 1999), perm. app. denied (Tenn. 2000). The petitioner asserted that his previous appellate counsel was ineffective because she did not raise on direct appeal whether the trial court (1) erred in not suppressing the petitioner's pretrial statements and (2) in not suppressing physical evidence seized during a warrantless search of his residence. He also claimed that his trial and appellate counsel were ineffective because they did not properly challenge the sufficiency of the evidence on three or four specific counts of the indictments. After an evidentiary hearing, the trial court entered a very thorough order denying post-conviction relief. Upon our review, we affirm.

Sherry Lynn Hudgens v. Royal & Sunalliance Insurance
M2001-02984-WC-R3-CV
Authoring Judge: James L. Weatherford, Sr. 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 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 employer appeals the judgment of the trial court awarding the employee 45% permanent partial disability to her left arm. The employee, who was diagnosed with DeQuervain's Syndrome caused by repetitive use of her hands while working for the employer, had sustained a 2% anatomical impairment to the upper extremity and had permanent restrictions on the use of her left hand. The employer contends the trial court erred by 1) granting an excessive award; and 2) finding that the injury was to the arm rather than the hand. We hold that the evidence does not preponderate against the trial court's findings. Accordingly, the judgment of the trial court is affirmed. Tenn. Code Ann. _ 5-6-225(e) (1999) Appeal as of Right; Judgment of the Criminal Court Affirmed. JAMES L. WEATHERFORD, SR. J., in which JANICE M. HOLDER, J., and JOE C. LOSER, JR., SP.J., joined. John W. Barringer, Jr., Nashville, Tennessee, for the appellants, Royal & Sunalliance Insurance and TennPlasco, Inc. Frank D. Farrar and William Joseph Butler, Lafayette, Tennessee, for the appellee, Sherry Lynn Hudgens. MEMORANDUM OPINION Mrs. Sherry Lynn Hudgens, the employee/appellee, was 42 years old at the time of trial, has a twelfth grade education, and has no special skills or training. All of the jobs she has held in the past involved some type of manual labor. She has worked as a dishwasher, hotel maid, custodian and school bus driver. She has also worked in factories and fast food restaurants, and on farms baling hay. From 1999 until 21, Mrs. Hudgens worked in the finishing department for TennPlasco, Inc., the employer/appellant, where she unpacked boxes of parts and loaded these parts onto an assembly line. On January 5, 21, Mrs. Hudgens felt burning and pain in her forearm and wrist area while working at TennPlasco. She was referred to Dr. Paul Abbey who gave her a wrist immobilizer to reduce the pain. Prior to her employment with TennPlasco, Mrs. Hudgens had never experienced or complained of pain or complications with her left wrist, hand, or arm.1 Still experiencing pain, Mrs. Hudgens sought additional treatment from Dr. Robert P. Landsberg, a board certified orthopedic surgeon. On July 18, 21, Dr. Landsberg conducted an evaluation of her left arm and also reviewed her prior medical records. Dr. Landsberg diagnosed Mrs. Hudgens with "DeQuervain's syndrome which is constrictive tenosynovitis in the first dorsal extensor compartment on the left." He found the anatomical problem to be above the wrist, but that it affected the use of her thumb and wrist. Dr. Landsberg assigned a 2% permanent partial impairment rating to the left upper extremity based upon the latest edition of the AMA Guides. On February 21, 21, Mrs. Hudgens was released to return to work with permanent restrictions of no repetitive gripping or squeezing with the left hand. She was laid off on February 24, 21, and has not been called back to work at TennPlasco. Mrs. Hudgens testified that she cannot return to any of her previous jobs because of her injury and permanent restrictions. She applied for eight or nine jobs within three weeks prior to trial, but had not been contacted by any employer. According to Mrs. Hudgens, "Whenever I use [my left arm] a lot, I have swelling that comes up in the arm area down into the wrist and thumb." She can only perform moderate physical activities with her left arm for 15 to 2 minutes before the pain and swelling begins. Mrs. Hudgens testified that before her injury she could feed her animals, mow the lawn, cook, clean, and perform other household chores. She now uses paper plates and cups because she is unable to lift her ceramic plates and glassware. The trial court found that Mrs. Hudgens had sustained a 45% permanent partial disability to 1 Mrs. Hud gens suffered a previous injury to her right arm while working for TennPlasco for which she received a 1% upper extremity impairment rating for loss of strength to her right side. This injury is not an issue in the present case. -2-

David C. Moss v. Feldkircher Wire Fabricating Co., Inc. and The
M2001-01634-WC-R3-CV
Authoring Judge: Gray, Sp. J.
Trial Court Judge: Iirvin Kilcrease, Jr.,Chancellor
This Worker's Compensation Appeal has been referred to the Special Workers' Compensation Appeals Panel in accordance with Tenn. Code Annotated _ 50-6-225(e) for hearing and reporting findings of fact and conclusion of law. In this case, the plaintiff contends that the trial court erred in (1) concluding that he did not sustain work related carpal tunnel syndrome and (2) in assigning him a vocational impairment of ten percent (10%) to the body as a whole. For reasons stated below we affirm the judgment of the trial court.

State of Tennessee v. Steven E. Smith
E2001-02892-CCA-R3-CD
Authoring Judge: Judge Alan E. Glenn
Trial Court Judge: Judge Leon C. Burns, Jr.

In December 1997, the defendant was convicted of the sale of cocaine over .5 grams, a Class B felony, and sentenced to eight years, with all but sixty days suspended, and the balance to be served on probation. In October 1998, his probation was revoked because he was convicted that year of possession of marijuana, criminal impersonation, and contributing to the delinquency of a minor. He was incarcerated for ninety days and again placed on probation, this time in community corrections. In December 1998, another probation violation warrant was issued, this time alleging that the defendant had absconded. In September 1999, his probation was revoked and he was ordered to serve the balance of his sentence in the Department of Correction. Apparently, he was again placed on probation, with the case transferred to Michigan. In April 2001, another probation warrant was issued, charging the defendant with failing two drug screens and attempting to adulterate a drug screen. Following a hearing, the court revoked the defendant's probation and he timely appealed. We affirm the judgment of the trial court.

State of Tennessee v. Nicole Beaudion a/k/a Nikki Napier
M2001-01560-CCA-R3-CD
Authoring Judge: Judge J. Curwood Witt, Jr.
Trial Court Judge: Judge Cheryl A. Blackburn

The defendant, Nicole Beaudion, also known as Nikki Jo Napier, appeals pursuant to Tennessee Rule of Criminal Procedure 35(b). After pleading guilty to facilitation of especially aggravated robbery, a Class B felony, and agreeing to accept a fifteen-year sentence to be served in the Department of Correction with a 30 percent release eligibility date, the defendant filed a timely Rule 35(b) motion to reduce her sentence to ten years. The trial court denied this motion, and the propriety of this action is now challenged on appeal.