State of Tennessee v. Jeffery Bowers
W2001-01374-CCA-R3-CD
Authoring Judge: Judge David H. Welles
Trial Court Judge: Judge Jon Kerry Blackwood

The Defendant, Jeffery Bowers, was convicted in the Circuit Court of Fayette County of speeding . He now appeals to this Court alleging that his conviction should be reversed due to a conflict of interest in the Somerville City Court. We affirm the judgment of the trial court.

Thomas A. Street v. Howard Carlton, Warden, and State of Tennessee
E2001-00998-CCA-R3-CO
Authoring Judge: Judge Alan E. Glenn
Trial Court Judge: Judge Lynn W. Brown

The petitioner was convicted of first degree murder for a killing that occurred in 1985, and was unsuccessful both in a direct appeal of his conviction and a petition for post-conviction relief. Subsequently, he filed a petition for writ of habeas corpus, the denial of which is the basis for this appeal. In that petition, he claimed, as he had in his earlier petition for post-conviction relief, that his conviction should be reversed because the jurors were allowed to separate during the trial. Based upon our review, we affirm the post-conviction court's dismissal of the petition.

State of Tennessee v. Charles Wilburn Taylor
E2001-01617-CCA-R3-CD
Authoring Judge: Judge Alan E. Glenn
Trial Court Judge: Judge E. Eugene Eblen

A petition to declare the defendant a motor vehicle habitual offender was filed and served on him. He did not appear at the hearing, where a default judgment was entered. Subsequently, he filed a motion to set aside the default order, arguing that the service of the order on him was inadequate. The trial court denied the motion, and we affirm that denial.

James Burks v. Williams Typesetting, Inc.
E2000-02532-WC-R3-CV
Authoring Judge: John K. Byers, Sr. J.
Trial Court Judge: Jeffery Franklin 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 trial court found the employee had sustained a twenty-five percent permanent partial disability, based on the medical impairment of five percent, to her left arm. The trial court further held that Barker v. Home-Crest Corp., 85 S.W.2d 373 (Tenn. 1991) controlled and because March 24, 1998, was the last day the employee was able to work, the plaintiff insurer was liable for the employee's workers' compensation award. We affirm the judgment of the trial court. Tenn. Code Ann. _ 5-6-225(e) (1999) Appeal as of Right; Judgment of the Chancery Court Affirmed JOHN K. BYERS, SR. J., in which WILLIAM M. BARKER, J., and WILLIAM H. INMAN, SR. J., joined. Robert J. Uhorchuk, Chattanooga, Tennessee for the appellant, Travelers Insurance Company. Sarah C. Hardison Reisner and James L. May, Jr., Nashville, for the appellees, Lisa Fuson, et al. MEMORANDUM OPINION Review of the findings of fact made by the trial court is de novo upon the record of the trial court, accompanied by a presumption of the correctness of the findings, unless the preponderance of the evidence is otherwise. TENN. CODE ANN. _ 5-6-225(e)(2). Stone v. City of McMinnville, 896 S.W.2d 548, 55 (Tenn. 1995). The application of this standard requires this Court to weigh in more depth the factual findings and conclusions of the trial courts in workers' compensation cases. See Corcoran v. Foster Auto GMC, Inc., 746 S.W.2d 452, 456 (Tenn. 1988). Facts The employee, age thirty-six at the time of trial, has a high school diploma and some college credits. She served in the Army for six years as a health inspector before being honorably discharged. During her Army service, she learned basic computer skills in the Lotus and WordPerfect programs. She was employed by the parties' insured, Dunlap Industries, from November of 1993 until January of 1999. She sustained a gradually occurring injury_carpal tunnel syndrome_while employed with Dunlap Industries. During the time relevant to this case, Dunlap Industries was insured by two insurers. The defendant provided workers' compensation coverage to the employer from September 11, 1996 until September 11, 1997. The plaintiff provided coverage beginning September 12, 1997. The plaintiff's injury resulted in the filing of three claims and three First Report of Injury forms before surgery was performed on March 26, 1998. After both the first claim, filed on October 23, 1996, and second claim, filed on May 1, 1997, the employee was released by her treating physician and returned to work. The final claim was filed on September 5, 1997. The defendant insurer authorized surgery after the final claim and then denied coverage on April 23, 1998. The defendant insurer claims the date of injury was the last day the employee was able to work, that date being March 24, 1998_the date of surgery, which was outside of the workers' compensation policy issued by the company to cover claims for work-related injuries. The trial court found the employee had sustained a twenty-five percent permanent partial disability, based on the medical impairment of five percent, to her left arm. The trial court further held that Barker v. Home-Crest Corp., 85 S.W.2d 373 (Tenn. 1991) controlled and because March 24, 1998, was the last day the employee was able to work, the plaintiff insurer was liable for the employee's workers' compensation award. Medical Evidence Dr. John P. Nash, an orthopedic surgeon, testified by deposition. Dr. Nash first saw the employee on December 1, 1996, approximately six weeks after she began having symptoms. She complained of pain in her left elbow with occasional tingling in her small finger that began after she lifted a box at work. Dr. Nash diagnosed left lateral epicondylitis or "tennis elbow." He returned her to work on January31, 1997, after her symptoms improved. The employee was next seen in June of 1997 for additional elbow complaints. The employee was treated conservatively on several occasions for what Dr. Nash referred to as "flare ups." According to Dr. Nash, surgery was -2-

State of Tennessee v. Jerry Ray Davidson
M1998-00105-CCA-R3-CD
Authoring Judge: Judge Jerry L. Smith
Trial Court Judge: Judge Allen W. Wallace

The appellant, Jerry Ray Davidson, was found guilty by a jury of premeditated first degree murder and aggravated kidnapping. Thereafter, the jury sentenced the appellant to death based upon the finding of three aggravating circumstances: the appellant had previously been convicted of one or more violent felonies; the murders were knowingly committed while the appellant was engaged in committing a felony, i.e., aggravated kidnapping; and the appellant knowingly mutilated the body of the victim after death. The appellant received a consecutive twenty year sentence for the kidnapping conviction. On appeal, the appellant raises the following issues:

(1) Whether the trial erred when it denied the appellant's motions to change venue, strike the venire and grant additional peremptory challenges; (2) Whether the evidence is sufficient to sustain the convictions; (3) Whether a witness for the prosecution should have been allowed to offer opinion testimony; (4) Whether the trial court correctly instructed the jury about the unanimity of its verdict; (5) Whether the jury's verdict is proper;  (6) Whether the prosecutor has unlimited discretion in seeking the death penalty; (7) Whether the death penalty is imposed in a discriminatory manner; and (8) Whether Tennessee courts employ an adequate proportionality review. Having thoroughly considered all of these issues and having fully reviewed the appellate record in this case, we affirm the convictions and the sentence of death imposed for first degree murder.

State of Tennessee v. Joseph S. Hayes
E2001-00868-CCA-R3-CD
Authoring Judge: Judge J. Curwood Witt, Jr.
Trial Court Judge: Judge R. Jerry Beck

The defendant, Joseph S. Hayes, appeals the Sullivan County Criminal Court's denial of alternative sentencing in the defendant's three Class B misdemeanor convictions of assault. Finding no reversible error, we affirm.

State of Tennessee v. Gerald Powers - Dissenting
W1999-02348-SC-DDT-DD
Authoring Judge: Justice William M. Barker
Trial Court Judge: Judge Joseph B. Dailey

At the outset, I recognize that the facts and evidence surrounding the heinous murder of Shannon Sanderson are certainly indicative of guilt on the part of the defendant, Gerald Powers. Indeed, even without the disputed testimony of the defendant’s wife, the evidence implicating Mr. Powers is convincing, if not overwhelming. However, I am unwilling to affirm a criminal conviction based upon a flawed interpretation of the marital communication privilege as codified in Tennessee Code Annotated section 24-1-201(b) (Supp. 1998). In my opinion, the statutory marital communications privilege codified at Tennessee Code Annotated section 24-1-201(b) should have resulted in the exclusion of the defendant’s wife’s testimony relating to the defendant’s confidential communications. Because I am of the opinion that reversible error occurred in this respect, I respectfully dissent.

Shelia J. Troy v. William Troy
M1998-00989-COA-R3-CV
Authoring Judge: Judge William C. Koch, Jr.
Trial Court Judge: Judge Jim T. Hamilton

This appeal involves a dispute between a woman and her former in-laws regarding the title to a tract of property in Prospect, Tennessee and the in-laws' accounting for $35,000 held for the benefit of the woman and her former husband. When she filed for divorce in the Chancery Court for Giles County, the woman also named her in-laws as defendants and alleged that they had misappropriated marital assets and breached a contract to convey the property in Prospect, Tennessee. After agreeing to an irreconcilable differences divorce, the woman proceeded with her claims against her former in-laws. Following a bench trial, the trial court held that the in-laws had accounted for all the funds being held for the benefit of the woman and her former husband and that the in-laws owned the disputed property. On this appeal, the woman takes issue with both of these conclusions. We have determined that the trial court properly found that the property belonged to the in-laws. However, we have also determined that the in-laws did not properly account for $892.15 of the funds they were holding. Accordingly, we modify the final order to award the woman a $892.15 judgment against her former in-laws.

Jason Michon v. State of Tennessee
M2001-00343-CCA-R3-PC
Authoring Judge: Judge Joe G. Riley
Trial Court Judge: Judge Cheryl A. Blackburn

Petitioner appeals the summary dismissal of his petition for post-conviction relief after the trial court found it was barred by the statute of limitations. We conclude that due process considerations may have tolled the running of the statute of limitations if trial counsel misled petitioner concerning his intention to pursue an appeal. We, therefore, reverse and remand for an evidentiary hearing on the issue of tolling.

Darlette I. Billingsley v. Janelle C. Waggener
M2001-01015-COA-R3-CV
Authoring Judge: Judge David Michael Swiney
Trial Court Judge: Judge J. Russ Heldman

This is an automobile accident case where each party claims she had the green light when she entered the intersection where the accident occurred. In addition to the depositions of the parties, Defendant submitted expert testimony to the effect that Plaintiff's version of the accident was physically impossible while Defendant's version was not. The Trial Court granted summary judgment to Defendant after concluding, as a matter of law, that Plaintiff's negligence was at least 50% under comparative fault principles. We conclude that genuine issues of material fact exist and vacate the judgment of the Trial Court.

Anthony Hunter v. State of Tennessee
M2000-03228-CCA-R3-PC
Authoring Judge: Judge Joe G. Riley
Trial Court Judge: Judge J. Randall Wyatt, Jr.

This is an appeal from the denial of post-conviction relief. The petitioner contends he was deprived of the effective assistance of counsel which led to an involuntary guilty plea. We affirm the judgment of the trial court.

Derrick Williams v. State of Tennessee
W2001-00450-CCA-R3-PC
Authoring Judge: Judge Thomas T. Woodall
Trial Court Judge: Judge Arthur T. Bennett

The petitioner, Derrick Williams, pled guilty to three counts of simple robbery, a Class C felony, and one count of aggravated robbery, a Class B felony. The trial court sentenced Petitioner as a Range III persistent offender to fifteen years for each of the simple robbery convictions and twenty-five years for the aggravated robbery conviction, with the sentences to be served concurrently for an effective sentence of twenty-five years. Thereafter, Petitioner filed a pro se petition, with one amendment filed by appointed counsel, for post-conviction relief alleging ineffective assistance of counsel. The post-conviction court denied Petitioner relief, which resulted in this appeal wherein Petitioner claims ineffective assistance of counsel based on the following: (1) counsel failed to argue that the indictment concerning aggravated robbery was insufficient whereas it did not allege an essential element of the offense, i.e., that Petitioner used a deadly weapon to commit the crime; and (2) counsel pressured Petitioner to plead guilty, which coercion caused his plea to be involuntary and, therefore, constitutionally infirm. After a review of the record, we affirm the judgment of the post-conviction court.

State of Tennessee v. Thomas Wayne Shields
W2000-01524-CCA-R3-CD
Authoring Judge: Judge Norma McGee Ogle
Trial Court Judge: Judge Julian P. Guinn

The appellant, Thomas Wayne Shields, challenges both his conviction by a jury in the Circuit Court of Henry County of one count of assault and his consequent sentence. Following a thorough review of the record and the parties' briefs, we affirm the judgment of the trial court, concluding that (1) the evidence adduced at trial is sufficient to support the appellant's conviction of assault; (2) the appellant waived any objection to the trial court's response to a question posed by the jury during deliberations, and the trial court's remarks do not constitute plain error within the meaning of State v. Smith, 24 S.W.3d 274 (Tenn. 2000); and (3) the trial court properly denied the appellant full probation.

State of Tennessee v. Donald W. Branch
W1999-00506-CCA-R3-CD
Authoring Judge: Judge Thomas T. Woodall
Trial Court Judge: Judge Chris B. Craft

After Defendant was convicted of two counts of aggravated vehicular homicide and one count of driving while license revoked, the trial court imposed an effective sentence of forty-nine years in confinement. On appeal, Defendant argues that the evidence was insufficient to sustain the convictions for aggravated vehicular homicide, the trial court's instructions to the jury were erroneous, the blood alcohol test results were admitted in error, the State's closing argument was improper, and his sentence is excessive. After a thorough review of the record, we find that the trial court improperly applied two enhancement factors. However, the errors affect only Defendant's sentence for one count of aggravated vehicular homicide and, therefore, we reduce this sentence by six months. We affirm the judgment of the trial court in all other aspects.

Randy D. Vowell v. State of Tennessee
E2000-01300-CCA-R3-PC
Authoring Judge: Judge Jerry L. Smith
Trial Court Judge: Judge James B. Scott, Jr.

An Anderson County jury convicted the petitioner, Randy D. Vowell, of one count of rape and one count of aggravated rape. The trial court sentenced the petitioner to serve concurrent sentences of twenty-three years for aggravated rape and eight years for rape as a Range I standard offender. The petitioner filed a new trial motion, which the trial court denied, and the petitioner appealed his conviction to this Court. We affirmed the decision of the lower court, finding that all of the petitioner's claims of error were meritless, with the exception of the petitioner's claim of ineffective assistance of trial counsel, which this court declined to consider because the record on appeal was insufficient to review the petitioner's claim. See State v. Randy D. Vowell, No. 03C01-9709-CC-003383, 1998 WL 573296, at *2 (Tenn. Crim. App. at Knoxville, Sept. 8, 1998). This Court also noted that because the petitioner's claim of ineffective assistance of counsel had not been waived or decided on its merits, it was open to collateral attack. Id. at *2. The petitioner filed a petition seeking post-conviction relief alleging that he received ineffective assistance from his trial counsel, and the post-conviction court denied his petition. The petitioner now brings this appeal, challenging the post-conviction court's denial of his petition. For the following reasons, we affirm the decision of the post-conviction court.

State of Tennessee v. Charles Orlando Fields
W2001-00124-CCA-R3-CD
Authoring Judge: Judge Joseph M. Tipton
Trial Court Judge: Judge William B. Acree

The defendant, Charles Orlando Fields, was indicted for one count of selling one-half gram or more of cocaine within one thousand feet of a school, a Class A felony, and one count of distributing one-half gram or more of cocaine within one thousand feet of a school, a Class A felony. An Obion County Circuit Court jury convicted him of both counts. The trial court merged the distributing cocaine conviction into the selling cocaine conviction and sentenced the defendant as a Range II, multiple offender to thirty-three years in the Tennessee Department of Correction. The defendant appeals, contending that the evidence is insufficient to support his conviction and that his sentence is excessive. We affirm the judgment of the trial court.

State of Tennessee v. Anthony Dwight Cox
W2000-00644-CCA-R3-CD
Authoring Judge: Judge Joseph M. Tipton
Trial Court Judge: Judge John Franklin Murchison

The defendant, Anthony Dwight Cox, appeals from his convictions for aggravated rape and aggravated assault, contesting the sufficiency of the evidence. We affirm the judgments of conviction.

State of Tennessee v. John Arron Heard
E2001-00552-CCA-R3-CD
Authoring Judge: Judge Alan E. Glenn
Trial Court Judge: Judge Rebecca J. Stern

The defendant, John Arron Heard, appeals from the judgment of the Hamilton County Criminal Court revoking his community corrections sentence. The sole issue on appeal is whether the trial court abused its discretion in ordering the defendant to serve the remainder of his sentence in the penitentiary. After careful review, we affirm the trial court's judgment.

State of Tennessee v. Angela Bright
E2000-03146-CCA-R3-CD
Authoring Judge: Judge J. Curwood Witt, Jr.
Trial Court Judge: Judge D. Kelly Thomas, Jr.

Angela Bright brings this appeal of the Blount County Criminal Court's revocation of her probationary sentence and order placing her Department of Correction sentence into effect. Because the lower court did not abuse its discretion, we affirm.

State of Tennessee v. Anthony D. Bynum
W2001-00111-CCA-R3-CD
Authoring Judge: Presiding Judge Gary R Wade
Trial Court Judge: Judge William B. Acree

The defendant, Anthony D. Bynum, was convicted of possession of anhydrous ammonia, a Class E felony. The trial court sentenced the defendant to three years, one year to be served in the Weakley County Jail and the balance to be served on probation. The defendant was fined $1,000.00. In this appeal of right, the defendant asserts that the evidence was insufficient to support his conviction and that his sentence was excessive. The judgment of the trial court is affirmed.

State of Tennessee v. Danny Munson
W2001-00151-CCA-R9-CD
Authoring Judge: Presiding Judge Gary R Wade
Trial Court Judge: Judge Joseph B. Dailey

This is an interlocutory appeal by the state from an order by the trial court excluding a .20 breathalyzer result from consideration in the imposition of an enhanced sentence for a DUI offense. The order is vacated and the cause is remanded for trial.

State of Tennessee v. Danny Munson - Concurring
W2001-00151-CCA-R9-CD
Authoring Judge: Judge Joe G. Riley
Trial Court Judge: Judge Joseph B. Dailey

I concur with the result reached by the majority and consider this case distinguishable from Scisney. In Scisney, Judge Tipton and I, in separate opinions, concluded an intoximeter reading of .04%, by itself, was insufficient to establish “beyond a reasonable doubt” that the blood alcohol concentration was, in fact, .04%. See State v. Mark T. Scisney, C.C.A. No. 01C01-9605-CC-00209, 1997 WL 634515, at *9-11 (Tenn. Crim. App. Oct. 16, 1997, at Nashville). This was because there was a 25% chance that the actual level was below .04% due to the margin of error. Id.

State of Tennessee v. Courtney L. Johnson
M2000-02991-CCA-R3-CD
Authoring Judge: Judge J. Curwood Witt, Jr.
Trial Court Judge: Judge John H. Gasaway, III

The defendant, Courtney L. Johnson, appeals the revocation of her probation by the Montgomery County Circuit Court. On appeal, she challenges the trial court's decision, after revocation, to order her to serve the balance of her effective sentence of approximately ten years in the Tennessee Department of Correction. Because we find no abuse of discretion, we affirm the judgment of the trial court.

State of Tennessee v. Ronald Prentice
M2000-02937-CCA-R3-CD
Authoring Judge: Presiding Judge Gary R Wade
Trial Court Judge: Judge Seth W. Norman

The defendant, Ronald Prentice, was convicted of two counts of aggravated assault. The trial court imposed a sentence of four years on each count, with a concurrent one year sentence of incarceration and consecutive sentences of three years probation. In this appeal of right, he argues that the trial court erred (1) by improperly joining the offenses, (2) by excluding testimony regarding his divorce from the victim, and (3) by prohibiting a hypothetical question to an expert witness for the state. The judgment of the trial court in case number 98-D-2523 is affirmed. The judgment of the trial court in case number 99-A-13 is reversed and remanded for a new trial.

Michael Douglas Hughes v. State of Tennessee
M2001-00888-CCA-R3-PC
Authoring Judge: Judge David H. Welles
Trial Court Judge: Judge Cheryl A. Blackburn

The Defendant, Michael Douglas Hughes, entered a plea of no contest to one count of aggravated rape, and a plea of guilty to ten counts of aggravated rape, on November 30, 1992. On March 4, 1993, a sentencing hearing was held and the Defendant was sentenced for these crimes to an aggregate term of eighty years. The Defendant's trial counsel failed to timely perfect the Defendant's appeal, and on June 30, 1995, the Defendant filed a petition for post-conviction relief, seeking a delayed appeal. The delayed appeal was granted and this Court affirmed the Defendant's sentence. See State v. Michael Douglas Hughes, No. 01C01-9701-CR-00021, 1998 WL 301730, at *1 (Tenn. Crim. App., Nashville, June 10, 1998). The Tennessee Supreme Court denied the Defendant's application for permission to appeal on February 22, 1999. The Defendant filed the present petition for post-conviction relief on August 25, 1999, alleging ineffective assistance of counsel at his plea, sentencing, and on appeal; that his guilty plea is invalid because it was not made voluntarily, understandingly, and knowingly; and that the length of his sentence constitutes cruel and unusual punishment. The trial court dismissed the present petition on the grounds that it was not timely filed, that the grounds for relief have been waived, and that it does not contain grounds sufficient to constitute a motion to reopen the previous petition. The Defendant now appeals as of right. We reverse the trial court's ruling and remand this matter for an evidentiary hearing.