Opinions

State vs. Warner Powell and Charlie Stokes
M1999-00661-CCA-R3-CD
Authoring Judge: Judge David H. Welles
Trial Court Judge: Robert W. Wedemeyer
This is an appeal as of right by the State of Tennessee, which argues that the trial court erred by suppressing the evidence obtained against the Defendants pursuant to a search warrant. The State asserts that the trial court incorrectly concluded that the search warrant was invalid because the agent who provided the information in the affidavit establishing probable cause to search did not have the authority to execute the warrant or arrest the Defendants. In response, the Defendants assert that the State's notice of appeal was not timely filed, and they argue that the evidence was properly suppressed because the agent did not have the authority to obtain or execute the search warrant and because the affidavit did not establish the veracity of the confidential informant. We conclude that the State's notice of appeal was not timely filed, but we will consider the appeal in the interest of justice. We further conclude that the search warrant was valid; thus the trial court erred by suppressing the evidence obtained pursuant to the warrant. Accordingly, the trial court's order suppressing the evidence is reversed, and this case is remanded for further proceedings consistent with this opinion.

State vs. William Lewis Houston
M1999-01430-CCA-R3-CD
Authoring Judge: Judge Joe G. Riley
Trial Court Judge: Jim T. Hamilton
Defendant was convicted by a Giles County jury of eight drug offenses and one count of aggravated assault. He received an effective sentence of seventy-two years. In this appeal, the defendant makes the following allegations: (1) the evidence was insufficient to support his convictions; (2) the trial court committed plain error by consolidating all nine indictments for trial; (3) the process of selecting the jury venire was unconstitutional; (4) the trial court improperly limited the defendant's cross-examination of the undercover agent; (5) the trial court erred by admitting into evidence transcripts of certain tape recorded conversations and failed to properly instruct the jury concerning the transcripts; and (6) the trial court erred in its sentencing determinations. We conclude the trial court improperly sentenced the defendant and reduce the sentences to an effective term of forty-six years. The judgments of the trial court are affirmed in all other respects.

State vs. Roderick Johnson
M1999-00605-CCA-R3-CD
Authoring Judge: Judge Joe G. Riley
Trial Court Judge: J. Randall Wyatt, Jr.
A Davidson County jury convicted defendant of second degree murder. In this appeal as a matter of right, defendant challenges only the sufficiency of the evidence upon which the jury based his conviction. Our review of the record reflects sufficient evidence to support the jury's finding. Accordingly, we affirm the judgment of the trial court.

State vs.Robert Lewis Herrin
M1999-00856-CCA-R3-CD
Authoring Judge: Judge Norma McGee Ogle
Trial Court Judge: W. Charles Lee
The appellant, Robert Lewis Herrin, pled guilty in the Marshall County Circuit Court to one count of theft of property worth one thousand dollars ($1,000) or more but less than ten thousand dollars ($10,000), a class D felony. The trial court sentenced the appellant as a Range I offender to three years incarceration in the Tennessee Department of Correction, suspending all but 120 days of the appellant's sentence and granting him supervised probation for a term of ten years. As a special condition of probation, the trial court prohibited the appellant from engaging in "any type [of] construction business or solicitation for business." In this appeal, the appellant argues that the trial court erred in imposing this special condition of probation. Following a review of the record and the parties' briefs, we affirm the judgment of the trial court as modified.

State vs. Bobbie Joe Rollins
M1999-02457-CCA-R3-CD
Authoring Judge: Judge Joe G. Riley
Trial Court Judge: W. Charles Lee
The defendant was convicted by a Marshall County jury of reckless aggravated assault and sentenced by the trial court to ten years imprisonment as a Range III offender. In this appeal as a matter of right, the defendant claims the conflict between the trial court's erroneous written jury instruction requiring proof of venue in "Lincoln County," and the oral instruction requiring proof of venue in "Marshall County," requires reversal. After a through review of the record, we conclude that the issue has been waived. Furthermore, regardless of waiver, any error in the written jury instruction was clearly harmless. Therefore, we affirm the judgment of the trial court.

James C. Barbra v. Clarendon National Insurance
E1999-00232-WC-R3-CV
Authoring Judge: Peoples, Sp. J.
Trial Court Judge: D. Kelly Thomas, 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, Clarendon National Insurance Company, is the workers' compensation insurance carrier for United Marine Corporation (hereafter "the employer"). The issue is whether an award of 62-1/2 percent partial disability to the body as a whole is excessive in light of the medical and vocational testimony. We affirm the judgment of the trial court.

State vs. Lori A. Little
M1999-0858-CCA-R3-CD

Trial Court Judge: Walter C. Kurtz
The Defendant, Lori A. Little, was convicted of two counts of forgery, both Class E felonies. In this appeal as of right, she argues (1) that the trial court improperly denied her the court's subpoena power prior to trial; (2) that the evidence was insufficient to support her convictions; (3) that the trial court improperly instructed the jury regarding NationsBank's obligations under the Uniform Commercial Code to reimburse customers for forgeries paid out of customers' accounts; (4) that the trial court improperly limited cross-examination of a prosecution witness regarding his bias; (5) that the jury was improperly tainted or biased by contact between a witness and a juror who were acquaintances; and (6) that the trial court intimidated the Defendant in a jury-out hearing during her direct examination at trial. We find no reversible error; thus, we affirm the judgment of the trial court.

State vs. Richard C. Silk
M1999-02526-CCA-R3-CD
Authoring Judge: Judge Norma McGee Ogle
Trial Court Judge: J. Steve Daniel
The appellant, Richard C. Silk, was convicted by a jury in the Rutherford County Circuit Court of one count of resisting arrest, a class B misdemeanor. The trial court sentenced him to six (6) months incarceration in the Rutherford County Jail, assigning a service percentage of seventy-five percent (75%). The appellant now presents the following issues for our review: (1) whether the evidence adduced at trial is sufficient to support the appellant's conviction of resisting arrest; (2) whether the trial court erred in sustaining certain objections by the State to the appellant's testimony concerning a statement made to him by an arresting officer; and (3) whether the trial court erred in sentencing the appellant. Following a thorough review of the record and the parties' briefs, we affirm the judgment of the trial court.

State vs. Bernard Jerome Jones
M2000-00018-CCA-R3-CD
Authoring Judge: Judge Joe G. Riley
Trial Court Judge: Cheryl A. Blackburn
The defendant was convicted by a Davidson County jury of possession with intent to sell or deliver 0.5 grams or more of cocaine. The trial court sentenced defendant to 16 years incarceration as a Range II multiple offender. In this appeal as a matter of right, defendant makes the following allegations of error: (1) the evidence was insufficient to support a finding of guilt; (2) the trial court erred by ruling that if defendant testified, the state could impeach his credibility by introducing defendant's prior drug convictions; and (3) the trial court erred in sentencing defendant to 16 years incarceration. After a thorough review of the record, we affirm the judgment of the trial court.

State of Tennessee v. Connie Easterly
M2000-00077-CCA-R10-CO
Authoring Judge: Judge Norma McGee Ogle
Trial Court Judge: Robert Steven Bebb

Stanley Kline vs. William Benefiel
W1999-00918-COA-R3-CV
Authoring Judge: Presiding Judge Alan E. Highers
Trial Court Judge: Jon Kerry Blackwood
This case arises from a home construction contract entered into by the Appellants and the Appellees. The Appellants filed a complaint against the Appellees in the Circuit Court of Shelby County for breach of contract. The Appellees filed a counter-complaint for breach of contract and unjust enrichment. The Appellants filed an amended complaint for violations of the Tennessee Consumer Protection Act. The trial court dismissed the Appellees' counter-complaint and found in favor of the Appellees as to the Appellants' complaint. The Appellants appeal from the order of the Circuit Court of Shelby County, finding in favor of the Appellees. For the reasons stated herein, we affirm the trial court's decision.

Rhonda Moffitt vs. Paul Moffitt
W1999-02403-COA-R3-CV
Authoring Judge: Judge W. Frank Crawford
Trial Court Judge: Joe C. Morris
In this divorce case, Husband appeals the trial court's final decree as it deals with the division of marital property, the division of marital debt (including crediting Wife for monies spent prior to the sale of the marital home), and child support arrearages. We affirm.

Elizabeth Cates vs. Herbert Cates
W1999-02359-COA-R3-CV
Authoring Judge: Judge Holly M. Kirby
Trial Court Judge: Martha B. Brasfield
This is a divorce dispute. Prior to divorce, the wife left the marital home, taking some of the parties' joint cash savings. On the day of the divorce hearing, the husband stipulated as to his inappropriate marital conduct, and the divorce was granted to the wife on that ground. The wife was awarded approximately 51% of the marital estate, rehabilitative alimony, and attorney's fees. The trial court excluded from its division of marital property the money the wife took when she moved out. The husband appeals. We affirm.

W1999-01828-COA-R3-CV
W1999-01828-COA-R3-CV
Authoring Judge: Judge Holly M. Kirby
Trial Court Judge: George R. Ellis

Rain/Hail Ins. vs. James Peeler
W1999-01962-COA-R3-CV
Authoring Judge: Presiding Judge Alan E. Highers
Trial Court Judge: Joseph H. Walker, III
This is a suit for the recovery of an insurance premium. The Appellant brought a complaint against the Appellee in the Circuit Court of Tipton County, seeking to recover the premium it claimed was due pursuant to a clause in the insurance policy. Both the Appellant and the Appellee brought motions for summary judgment. The trial court dismissed the Appellant's complaint and granted the Appellee's motion for summary judgment. The Appellant appeals the decision of the Circuit Court of Tipton County dismissing the Appellant's complaint and granting the Appellee's motion for summary judgment. For the reasons stated herein, we affirm the trial court's decision.

State vs. Samuel Wayne Loveday
E1999-01090-CCA-R3-CD
Authoring Judge: Judge Alan E. Glenn
Trial Court Judge: Ray L. Jenkins
The defendant, who was convicted of attempted aggravated rape, aggravated sexual battery, and aggravated assault, appealed these convictions, presenting as issues whether the out-of-court showup identification of the defendant was impermissibly suggestive and whether the subsequent in-court identification was tainted as a result. Based upon our review, we conclude that these issues are without merit and, thus, affirm the judgment of the trial court.

State vs. James Christopher Lewis
E1999-00802-CCA-R3-CD
Authoring Judge: Judge Alan E. Glenn
Trial Court Judge: R. Jerry Beck
The defendant entered an Alford plea to one count of attempted rape and two counts of sexual battery. He received a sentence of eight years as a Range II offender for the attempted rape and two years, as a Range I offender, for each of the sexual battery charges. All sentences were to be served concurrently. The defendant's request for a suspended sentence was denied after a lengthy hearing, and he raises that denial as the sole issue on appeal. Based upon our review, we affirm the judgment of the trial court.

State vs. Wilson
E1996-00006-SC-R11-CD
Authoring Judge: Justice Adolpho A. Birch, Jr.
Trial Court Judge: D. Kelly Thomas, Jr.
This is an appeal from the Circuit Court for Blount County, where Brandon Wilson, the defendant, pleaded guilty to seven counts of delivery of cocaine and to three counts (merged by the trial court into one count) of possession of cocaine with the intent to sell or deliver. Wilson appealed to the Court of Criminal Appeals contending, inter alia, that his indictments were legally insufficient and that the trial court erred in accepting the guilty plea because it was not voluntarily entered. The Court of Criminal Appeals agreed and reversed Wilson's convictions on all counts. We hold that the seven indictments for delivery of cocaine are sufficient; Wilson's convictions on these indictments are, therefore, reinstated. Additionally, because the issue concerning the voluntariness of Wilson's plea was not properly before the intermediate appellate court, we reinstate the conviction for possession of cocaine. This reinstatement is without prejudice to Wilson's right to file a petition for post-conviction relief within the appropriate time.

State vs. Larry Burks
E1999-00571-CCA-R3-CD
Authoring Judge: Judge Alan E. Glenn
Trial Court Judge: J. Curtis Smith
The mobile home, which was the residence of the defendant and his wife, was searched, pursuant to a search warrant, and certain illegal substances were found. The defendant filed a motion to suppress, contesting the adequacy of the description of the place to be searched. Following a hearing on the motion and the trial court's upholding the validity of the search warrant, the defendant entered a plea of guilty to a drug offense, reserving as certified questions of law the adequacy of the portion of the search warrant describing the place to be searched and whether the search warrant sufficiently established the reliability of the confidential informant. Based upon our review, we affirm the finding of the trial court that the description of the premises was adequate. Our consideration of the second certified question of law is waived because this issue was not pursued on appeal.

Gratz Carden, Jr. v. The Tennessee Coal Company
E1999-01213-WC-R3-CV
Authoring Judge: Lafferty, Sr. J.
Trial Court Judge: James B. Scott, Jr., 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 a hearing and reporting of findings of fact and conclusions of law. The appellant/defendant challenges the trial court's award of permanent and total disability benefits to the appellee/plaintiff. Also, the appellant contends that the evidence does not support the trial court's award of benefits to the body as a whole. After an in-depth review of the entire record, briefs of the parties and applicable law, we affirm the trial court's judgment. Tenn. Code Ann. _ 5-6-225(e) (1999) Appeal as of Right; Judgment of the Circuit Court is Affirmed. LAFFERTY, SR. J., in which BARKER, J., and PEOPLES, SP. J., joined. Robert W. Knolton, Oak Ridge, Tennessee, for the appellant, The Tennessee Coal Company. Roger L. Ridenour, Clinton, Tennessee, for the appellee, Gratz Carden, Jr. MEMORANDUM OPINION Trial Testimony The plaintiff, age 56, testified that he left the eighth (8th) grade to help supplement the family income. He worked in service stations, construction, and spent two years in the United States Army. In 1968, the plaintiff went to work in the coal mines of east Tennessee until his injury of November 15, 1995. The plaintiff stated that he started out as a laborer, was a boss on the job, and served as safety director. At the time of his injury, the plaintiff was a scoop operator. The plaintiff described the coal mines in the Tennessee area as low seam mines. These mines are approximately four (4) feet high. Most of the time a miner must walk bent over or be on their knees. At the time of his injury, the plaintiff was operating a head drive, which drives a belt line. This belt line removes coal from the mine. The plaintiff testified that he had the scoop of the head drive at the top of the mine when he slipped off the back of the head drive, falling about four (4) feet, striking the side of the scoop. The plaintiff was removed from the mine and taken to the Oak Ridge Hospital, where he spent three (3) days. The plaintiff was seen by Dr. John Jernigan for loss of balance, stomach sickness, and loss of hearing. The plaintiff stated that he underwent surgery but his loss of hearing did not improve. After three (3) months, his balance improved where he could walk by himself. Without Dr. Jernigan's knowledge, the plaintiff returned to work, "thinking I was going to get over this . . . I was being told the right side of my brain would block out all this damage." At work, the plaintiff would answer the telephone and occasionally grease the belt line. However, the plaintiff would become sick and have to leave work on occasion. The plaintiff testified that he was laid off after sixteen (16) months when the company closed the mine. Since the injury, the plaintiff testified that he cannot work around the home and has difficulty with walking or gardening. The plaintiff described his vision problems at night, "I'm like a drunk man trying, when I'm in the dark, I just cannot function. I can shut my eyes and go from the living room to the bedroom, if I leave my eyes open I'm bouncing off the walls." The plaintiff stated that he had always worked and provided for his family. His wife did not work outside of the home because he wanted her to stay home and take care of the children. The plaintiff testified that he had sustained two (2) past injuries on the job. The plaintiff broke his right foot, and on another occasion he broke his jaw. As a result, he only missed enough work for the doctor to treat his injuries and returned immediately to work. Since the plaintiff's lay off, he has received no income, but he and his wife have existed on his withdrawn retirement fund. The plaintiff stated that he cannot work an eight (8) hour day or a five (5) day week, due to his dizziness and balance problems. The plaintiff testified that about the time of this surgery, he took medication for his dizziness. Mrs. Bobbie Jean Carden, the plaintiff's wife, testified that her husband has been a great husband and father. She stated that she has never had to work outside the home since it was not necessary. Since the accident, she stated that her husband does not have any balance, and he must be slow in whatever he is doing. Mrs. Carden testified that she cleans houses and cooks for the elderly ladies in the neighborhood for five dollars ($5) an hour. When describing her husband's driving, Mrs. Carden stated, "he scares me to death . . . he cannot hear." Mrs. Carden testified that her husband must wear sunglasses since the sun kills his eyes and gives him a headache. She stated that her husband has a high tolerance for pain. When he broke his jaw and foot he went back to work immediately. Dr. Rodney E. Caldwell, a vocational consultant, testified that he met the plaintiff on December 8, 1998. Dr. Caldwell obtained the plaintiff's beliefs as to his ability to return to work, and he also reviewed the deposition of Dr. Jernigan. Dr. Caldwell stated that, in the interview, the plaintiff had not exaggerated his symptoms, and that they were consistent with what the plaintiff had told Dr. Jernigan. Dr. Caldwell described Dr. Jernigan's definition of "good balance function to mean normal balance function," as rather vague. Dr. Caldwell stated that one with balance problems would have difficulty lifting, climbing and bending over because one would tend to topple over. -2-

Frank Mills vs. Luis Wong
W1999-00665-COA-R9-CV
Authoring Judge: Presiding Judge Alan E. Highers
Trial Court Judge: Robert A. Lanier
This appeal presents a dispute over proper venue arising out of a medical malpractice suit against multiple defendants. The Shelby County Circuit Court denied the Defendant's motion to dismiss for improper venue. The case is before this court on an interlocutory appeal.

Sam Simpson vs. Addie Davis
W1999-00689-COA-R3-CV
Authoring Judge: Presiding Judge Alan E. Highers
Trial Court Judge: Martha B. Brasfield
This appeal arises from a breach of fiduciary duty and unjust enrichment action initiated by Sam Simpson against Addie Davis. Simpson alleged Davis breached her duty as trustee of her deceased mother's estate and was unjustly enriched by Simpson's construction of a residence on Davis' property. The trial court held that although Davis did not breach a fiduciary duty, she was unjustly enriched. The court ordered the sale of both the property and residence with proceeds to be allocated between the parties. Davis appeals.

Michelle Baker Pisano v. Gerry Baker
W1999-02660-COA-R3-CV
Authoring Judge: Presiding Judge Alan E. Highers
Trial Court Judge: William Michael Maloan

State of Tennessee v. Larry E. Scales
1998-00142-CCA-R3-CD

Trial Court Judge: Charles D. Haston, Sr.

State vs. Jerry D. Carney
M1999-01139-CCA-R3-CD
Authoring Judge: Judge Norma McGee Ogle
Trial Court Judge: Cheryl A. Blackburn
The appellant, Jerry D. Carney, appeals his conviction by a jury in the Davidson County Criminal Court of first degree murder. Pursuant to his conviction for first degree murder, the trial court sentenced the appellant to life in prison in the Tennessee Department of Correction, with the possibility of parole. The appellant raises the following issues for our review: (1) whether there was sufficient evidence of premeditation to support his conviction of first degree murder; (2) whether the State violated Brady by failing to disclose audio taped statements made by the police of witnesses the day after the shooting; and (3) whether the trial court erred in precluding the appellant's cross-examination of the police officers who were testifying at trial about their training regarding self-defense and the application of deadly force. Upon review of the record and the parties' briefs, we affirm the judgment of the trial court.