Opinions

James R. Smith v. State of Tennessee
M2009-02077-CCA-R3-PC
Authoring Judge: Judge David H. Welles
Trial Court Judge: Judge David Patterson

Following a jury trial, the Petitioner, James R. Smith, was convicted of one count of rape, a Class B felony, one count of sexual battery, a Class E felony, and one count of attempted false imprisonment, a Class B misdemeanor. See Tenn. Code Ann. __ 39-12-107(a), -13- 302(b), -13-503(b), -13-505(c). This Court affirmed his convictions on direct appeal. See State v. James R. Smith, No. M2005-00615-CCA-R3-CD, 2006 WL 264468 (Tenn. Crim. App., Nashville, Jan. 31, 2006), perm. to appeal denied, (Tenn. May 1, 2006). The Petitioner filed a timely petition for post-conviction relief. Following an evidentiary hearing, the post-conviction court denied relief. In this appeal, the Petitioner contends that the post-conviction court erred in denying him relief because his rights to due process and a fair and impartial jury were violated when five jurors ate lunch at the same table as the court clerk and two potential State witnesses. He also asserts that his trial counsel was ineffective because he (1) did not file any pretrial motions besides a request for discovery; (2) should have asked the trial court to declare a mistrial when he learned about the lunch incident; (3) failed to ask the jurors what they talked about at lunch; and (4) failed to raise the lunch incident in his direct appeal. After our review, we affirm the post-conviction court's denial of relief.

State of Tennessee v. Michelle Lee Raines
M2010-00692-CCA-R3-CD
Authoring Judge: Judge James Curwood Witt, Jr.
Trial Court Judge: Judge Cheryl Blackburn

The defendant, Michelle Lee Raines, pleaded guilty to two counts of facilitation of rape of a child, a Class B felony. Pursuant to the plea agreement, the trial court imposed an effective sentence of ten years with the manner of service left to the discretion of the trial court. Following a hearing, the trial court denied alternative sentencing and ordered the sentences served in confinement. On appeal, the defendant contends that the trial court erred in denying alternative sentencing. Discerning no error, we affirm the judgments of the trial court.

William Collier v. Cherry Lindamood, Warden
M2010-01167-CCA-R3-HC
Authoring Judge: Judge James Curwood Witt, Jr.
Trial Court Judge: Judge Stella Hargrove

The petitioner, William Collier, appeals from the summary dismissal of his petition for writ of habeas corpus wherein he challenged his November 2008 convictions of possession of heroin with intent to sell or deliver within 1000 feet of a school. In this appeal, the petitioner claims entitlement to habeas corpus relief via a sentence illegality. Discerning no error, we affirm the habeas corpus court's summary dismissal of the petition.

State of Tennessee v. Mark A. Owens
W2010-00314-CCA-R3-CD
Authoring Judge: Judge Alan E. Glenn
Trial Court Judge: Judge R. Lee Moore, Jr.

The defendant, Mark A. Owens, was convicted by a Lake County jury of the sale of less than .5 grams of cocaine, a Class C felony, and was sentenced by the trial court as a Range III, persistent offender to ten years in the Department of Correction. The sole issue he raises on appeal is whether the evidence was sufficient to sustain his conviction. Following our review, we affirm the judgment of the trial court.

State of Tennessee v. Connell Norton
M2009-01359-CCA-R3-CD
Authoring Judge: Judge Robert W. Wedemeyer
Trial Court Judge: Judge Buddy D. Perry

A Franklin County grand jury indicted the Defendant, Connell Norton, for one count of possession of a Schedule VI controlled substance with the intent to sell or deliver and one count of possession of drug paraphernalia. The defendant moved to suppress the evidence against him, which was seized during a search of his home following a warrantless entry. The trial court denied the motion to suppress. The defendant pled guilty to possession of a Schedule VI controlled substance with the intent to sell or deliver, but reserved a certified question of law pursuant to Tennessee Rule of Criminal Procedure 37(b)(2) as to whether the search of his home was lawful. Because the trial court failed to state in the record the factual findings and conclusions of law supporting the denial of the motion to suppress, we are precluded from reviewing the issue before us. Therefore, we remand the case for the trial court to enter an order stating its factual findings and conclusions of law, and for further proceedings consistent with this opinion.

James L. Johnson v. Howard Carlton, Warden
E2010-01309-CCA-R3-HC
Authoring Judge: Judge Jerry L. Smith
Trial Court Judge: Judge Lynn Brown

Petitioner, James Lee Johnson, appeals from the dismissal of a petition for writ of habeas corpus in which he argued that the trial court erred by failing to merge his three convictions and that the sole remaining conviction had expired. After a review, we affirm the dismissal of the petition for writ of habeas corpus because Petitioner has failed to establish that his judgments were void or that his sentences have expired. Accordingly, the judgment of the trial court is affirmed.

State of Tennessee v. Thomas David Johnson
M2009-01761-CCA-R3-CD
Authoring Judge: Judge Robert W. Wedemeyer
Trial Court Judge: Judge J. Curtis Smith

A Marion County jury convicted the Defendant, Thomas David Johnson, of attempted voluntary manslaughter, and the trial court sentenced him to three years, to be suspended after the service of sixty days in jail. On appeal, the defendant contends: (1) that the trial court erred when it denied his motion for judgment of acquittal; (2) that the trial court erred when it denied the defendant's request for judicial diversion; and (3) that the trial court erred when it denied him full probation. After a thorough review of the law and relevant authorities, we affirm the judgment of the trial court.

Thomas M. Goss v. State of Tennessee
M2009-02628-CCA-R3-PC
Authoring Judge: Judge Robert W. Wedemeyer
Trial Court Judge: Judge Robert Crigler

A Moore County jury convicted the Petitioner, Thomas M. Goss, of one count of rape and one count of aggravated burglary, and the trial court sentenced him to an effective sentence of twelve years in the Tennessee Department of Correction. The petitioner filed a petition for post-conviction relief, claiming that he received the ineffective assistance of counsel. After a hearing, the post-conviction court denied relief, and the petitioner now appeals. After a thorough review of the record and applicable law, we affirm the judgment of the post-conviction court.

State of Tennessee v. William Alexander Beasley, IV
M2009-02605-CCA-R3-CD
Authoring Judge: Judge Robert W. Wedemeyer
Trial Court Judge: Judge David E. Durham

The Defendant, William Alexander Beasley, IV, pled guilty to aggravated assault, a Class C felony, with the trial court to determine the length and manner of service of his sentence. After a hearing, the trial court ordered the defendant to serve six years in the Tennessee Department of Correction. The defendant appeals, contending the trial court: (1) erred when it denied his request for an alternative sentence; and (2) failed to properly apply pre-trial jail credit to his sentence. After a thorough review of the record and applicable law, we affirm the sentence of incarceration, but we remand for the entry of a corrected judgment that includes jail credits of 205 days.

Ray Bell Construction Co. vs. State of Tennessee, Department of Transportation
E2009-01803-COA-R3-CV
Authoring Judge: Judge John W. McClarty
Trial Court Judge: Commissioner William O. Shults

Tennessee Claims Commission - This case concerns an alleged breach of contract involving the incentive clause of a Tennessee Department of Transportation ("TDOT") road construction contract. Before the Claims Commission, TDOT argued that the contract language was clear in prohibiting an extension, alteration, or amendment of the incentive clause. The Claims Commission agreed with the position of Ray Bell Construction Company ("RBCC") that it was entitled to a modification of the incentive provision. To so find, the Commission held that "a definite latent ambiguity exists for which parol evidence not only is admissible, but frankly, absolutely necessary in both understanding and deciding the issues in this case." TDOT has appealed. We affirm the decision of the Claims Commission.

Ray Bell Construction Co. vs. State of Tennessee, Department of Transportation - Dissenting
E2009-01803-COA-R3-CV
Authoring Judge: Judge D. Michael Swiney
Trial Court Judge: Commissioner William O. Shults

I respectfully dissent from the majority’s decision to affirm the judgment of the Claims Commission. I believe the Claims Commission erred in finding a latent ambiguity in the contract, and as this was the purported basis for the Claims Commission’s decision, I would reverse the decision of the Claims Commission and grant judgment to the Tennessee Department of Transportation.

Jane Doe and John Doe v. Walgreens Company, et al.
W2009-02235-COA-R3-CV
Authoring Judge: Justice J. Steven Stafford
Trial Court Judge: Judge Robert L. Childers

This is an appeal from the grant of Appellees/Defendants' Tenn. R Civ. P 12.02 motion to dismiss. Appellant Jane Doe, who is HIV positive, was employed by Appellee Walgreens. In an effort to keep her medical condition private, Ms. Doe had her prescriptions filled at a Walgreens location other than the one at which she worked; therefore, Ms. Doe was also a customer of Walgreens. A co-worker of Ms. Doe's accessed Ms. Doe's prescription history in the Walgreens' database, and then disseminated her medical information to other coworkers and to Ms. Doe's fianc_. Ms. Doe and her fianc_ filed suit. The trial court dismissed the lawsuit, finding that the Does' exclusive remedy was under the workers' compensation act. Finding that the injuries sustained by Ms. Doe do not arise out of her employment with Walgreens, and that she has sufficiently pled causes of action outside workers' compensation law, we reverse the order of dismissal and remand.

Amy Cardwell vs. Donald Christopher Hutchinson
E2009-02680-COA-R3-CV
Authoring Judge: Judge D. Michael Swiney
Trial Court Judge: Judge Bill Swann

Amy E. Cardwell ("Petitioner") was sexually abused by Donald Christopher Hutchinson ("Respondent"), who was the Youth Leader at petitioner's church. Petitioner, who is mentally disabled, filed for and obtained an order of protection prohibiting respondent from having any contact with petitioner. Respondent also was prohibited from attending the church where he abused petitioner so long as petitioner continued to attend that church. The order of protection expired in one year, at which time both petitioner and respondent agreed to extend it for another one year period. At the expiration of the second one year term, petitioner filed a motion seeking another one year extension. Respondent opposed the second extension. Following a hearing, the trial court extended the order of protection for another year. Respondent appeals, and we affirm.

State of Tennessee v. Terrence Donnell Pirtle
W2010-00915-CCA-R3-CD
Authoring Judge: Judge Alan E. Glenn
Trial Court Judge: Judge Clayburn L. Peeples

The defendant, Terrence Donnell Pirtle, was convicted by a Gibson County jury of possession of cocaine with the intent to deliver or sell, a Class C felony, and possession of drug paraphernalia, a Class A misdemeanor, and was sentenced by the trial court as a Range II offender to an effective term of four years in the Department of Correction. In a timely appeal to this court, he argues that the trial court should have granted his motion to suppress on the basis that the search warrant failed to establish a sufficient nexus between his alleged criminal activity and the residence where the drugs and drug paraphernalia were found. The State responds by arguing that the defendant has waived the issue by his failure to include it in his motion for new trial or to provide an adequate record for our review. We agree with the State. Accordingly, we affirm the judgments of the trial court.

State of Tennessee v. Tyrick Lalord Mcintosh
W2010-00789-CCA-R3-CD
Authoring Judge: Judge J.C. Mclin
Trial Court Judge: Judge Roger Page

A Madison County jury convicted the defendant, Tyrick Lalord McIntosh, of aggravated burglary, a Class C felony. The trial court sentenced the defendant as a Range I standard offender to six years at 30% in the Tennessee Department of Correction. On appeal, the defendant contends that the evidence was insufficient to support his conviction. Following our review, we affirm the judgment of the trial court.

State of Tennessee v. James Parker, A/K/A "Self"
E2009-02353-CCA-R3-CD
Authoring Judge: Judge Alan E. Glenn
Trial Court Judge: Judge Robert H. Montgomery

The defendant, James Parker, aka "Self," was convicted by a Sullivan County Criminal Court jury of sale of less than 0.5 grams of cocaine, a Class C felony; delivery of less than 0.5 grams of cocaine, a Class C felony; possession of 0.5 grams or more of cocaine with intent to sell or deliver, a Class B felony; sale of 0.5 grams or more of cocaine, a Class B felony; delivery of 0.5 grams or more of cocaine, a Class B felony; sale of 0.5 grams or more of cocaine within 1000 feet of a school, a Class A felony; and delivery of 0.5 grams or more of cocaine within 1000 feet of a school, a Class A felony. The alternate delivery counts merged into the sale counts, and the trial court sentenced the defendant to six years for sale of less than 0.5 grams of cocaine, eight years for possession of 0.5 grams or more of cocaine with intent to sell or deliver, eight years for sale of 0.5 grams or more of cocaine, and twenty-five years for sale of 0.5 grams or more of cocaine within 1000 feet of a school. The court ordered that the twenty-five-year sentence be served consecutively to the other sentences, which were to be served concurrently, for an effective term of thirty-three years in the Department of Correction. On appeal, the defendant challenges the sufficiency of the evidence and the sentences imposed by the trial court. After review, we affirm the judgments of the trial court. However, the judgment in count seven incorrectly identifies the defendant's conviction for delivery of 0.5 grams or more of cocaine within 1000 feet of a school as a Class B felony; therefore, we remand for entry of a corrected judgment.

William Edward Watkins v. State of Tennessee
M2008-02098-CCA-R3-PC
Authoring Judge: Presiding Judge Joseph M. Tipton
Trial Court Judge: Judge Robert Jones

The Petitioner, William Edward Watkins, appeals the Maury County Circuit Court's denial of his petition for post-conviction relief from his convictions for two counts of first degree felony murder and one count of attempted aggravated robbery, for which he is serving consecutive life sentences plus three years. In this appeal, the petitioner contends that he is entitled to post-conviction relief because trial counsel was ineffective for failing to request the jury instructions on lesser included offenses and for failing to raise the issue in his motion for new trial in order to preserve the issue for appellate relief. We affirm the judgment of the post-conviction court.

Dillard Construction, Inc. vs. Haron Contracting Corp., et al.
E2010-00170-COA-R3-CV
Authoring Judge: Judge Charles D. Susano, Jr.
Trial Court Judge: Chancellor W. Frank Brown, III

The only parties left litigating in what started out as a complex construction dispute are, on one side, Dillard Construction, Inc , and, on the other, Dillard's demolition subcontractor, Havron Contracting Corp. After a bench trial and several post-trial motions, the court held that (1) Dillard, while not having a contract with Havron, was required by quantum meruit to pay Havron $91,100 for work performed by Havron's subcontractors; (2) Dillard was not entitled to an offset against that judgment for damage done to electrical equipment by Havron's subcontractor; (3) Havron was entitled to recover from Dillard, under a "passthrough" indemnity theory, the attorney's fees awarded against Havron and in favor of its subcontractor; and (4) Havron was not entitled to recover the attorney's fees that it, Havron, incurred in defending against the claims of its subcontractor. Dillard appeals challenging both the quantum meruit award and the denial of an offset. Havron challenges the trial court's denial of indemnification for attorney's fees Havron incurred in defending the claims of its subcontractor. We affirm.

Paul Rawdon, et al. v. Jimmie Lee Johnston, et al.
M2010-01097-COA-R3-CV
Authoring Judge: Andy D. Bennett, J.
Trial Court Judge: Jeffrey S. Bivins, Judge
The owner of a water easement from a spring seeks to use the water on land he owns which is adjacent to, but not part of, the original dominant estate. This use would not increase the burden of the easement. The owner of the spring objects. The trial court held for the spring owner. We reverse.

Michael Kline, et al. v. Club 616, Inc., et al.
W2009-01599-COA-R3-CV
Authoring Judge: Presiding Judge Alan E. Highers
Trial Court Judge: Judge John R. McCarroll

This appeal involves a lawsuit filed against a nightclub and several individuals who, according to Plaintiffs, were owners of the nightclub at the time of the events giving rise to this lawsuit. The trial court granted summary judgment to two of those individuals, finding that they had produced "conclusive" evidence that they had no ownership interest in the club at the relevant time. Plaintiffs appeal. We reverse and remand for further proceedings.

Jelani Stinson v. Margaret Washington
W2010-00928-COA-R3-JV
Authoring Judge: Judge David R. Farmer
Trial Court Judge: Judge John R. McCarroll

This is a child custody dispute between a biological father and the children's maternal grandmother. The trial court awarded custody to the grandmother. We affirm.

In re: Madison K. P.
M2009-02331-COA-R3-JV
Authoring Judge: Frank G. Clement, Jr., J.
Trial Court Judge: Donna Scott Davenport, Judge
This is an action to change the designation of the primary residential parent from Mother to Father. The child was born in 1999 when her parents were only sixteen years old. When the first parenting plan was established in 2000, Mother was designated the primary residential parent but the court ordered that she share "joint custody and guardianship" with her father and stepmother, with whom she and the child resided. Prior to the filing of this petition in 2009, the child was residing in Georgia with the maternal grandparents, Mother was residing in New York City, and Father was residing in Murfreesboro, Tennessee. When Mother advised Father that she was moving with the child to New Jersey, Father filed this petition to be named the primary residential parent. Mother challenged the petition contending, inter alia, that the Tennessee courts no longer have subject matter jurisdiction, that Georgia is the appropriate forum, and that she should continue as the primary residential parent. The Rutherford County Juvenile Court held that it maintained exclusive, continuing jurisdiction. Following a trial, the court found that a material change of circumstances existed and that Father should be designated as the primary residential parent. Mother appealed claiming that the trial court erred in exercising jurisdiction over the action and in designating Father as the primary residential parent. We affirm the trial court's determination that it maintains exclusive, continuing jurisdiction, however, we reverse the trial court's determination that Father should be named the primary residential parent.

Charles Ray Powell v. State of Tennessee
M2009-01618-CCA-R3-PC
Authoring Judge: Thomas T. Woodall
Trial Court Judge: Thomas W. Graham, Judge
Petitioner, Charles Ray Powell, appeals as of right the Franklin County Circuit Court's summary denial of his petition for post-conviction relief. In 1996, Petitioner was convicted by a jury of first degree murder and sentenced by the trial court to serve life imprisonment. This court affirmed petitioner's conviction, and petitioner did not make application for permission to appeal to the Tennessee Supreme Court pursuant to Rule 11 of the Tennessee Rules of Appellate Procedure. State v. Charles Ray Powell, M1998-00757-CCA-R3-CD, 2000 WL 621137 (Tenn. Crim. App. at Nashville, May 12, 2000). On July 10, 2009, petitioner filed a pro se petition for post-conviction relief, seeking a delayed appeal and collaterally attacking his conviction. The post-conviction court concluded that the petition was barred by the statute of limitations and dismissed it without a hearing. Upon review, we conclude that petitioner's post-conviction petition is barred by the statute of limitations and affirm the trial court's dismissal of the petition.

State of Tennessee v. Jeffrey S. Zarnik
M2009-00478-CCA-R3-CD
Authoring Judge: Judge Alan E. Glenn
Trial Court Judge: Judge Robert Crigler

The pro se defendant, Jeffrey S. Zarnik, appeals the trial court's denial of his motion to reduce or discharge his fine for his 2006 DUI conviction, arguing that the court denied the motion under the erroneous belief that it had no authority to waive the minimum fine in a DUI case. We agree with the defendant. Accordingly, we reverse the judgment of the trial court and remand the case for the trial court to consider the defendant's motion on its merits.

In Re: Keri C.
E2010-00381-COA-R3-PT
Authoring Judge: Judge Holly M. Kirby
Trial Court Judge: Chancellor Telford E. Forgety

This is a termination of parental rights and adoption case. The mother of the child tested positive for cocaine when the child was born, and DCS removed the child from the mother's custody and developed a safety plan for the mother. The child was eventually placed in the custody of the petitioners, who are the mother's cousin and her husband. During the time period at issue, the mother's visitation with the child consisted primarily of attending family gatherings and visiting with the child at these gatherings. She paid no child support. After the mother went to the petitioners' home to say that she intended to seek custody of the child, the petitioners filed this petition for termination of the mother's parental rights and for adoption of the child. After a trial, the trial court terminated the mother's parental rights on grounds of abandonment by failure to support and failure to visit. The mother now appeals. We affirm the trial court's finding of abandonment for failure to support and for willful failure to engage in more than token visitation with the child during the four-month time period preceding the filing of the termination petition, and affirm the termination of the mother's parental rights.