Opinions

State of Tennessee v. James Dewey Jensen, Jr.
E2002-00712-CCA-R3-CD
Authoring Judge: Judge Joe G. Riley
Trial Court Judge: Judge Stephen M. Bevil

A Hamilton County jury convicted the defendant, James Dewey Jensen, Jr., of a seventh offense of driving under the influence, theft of identity, and violation of the Motor Vehicle Habitual Offenders Act. The sole issue presented by the defendant in this appeal is whether the trial court erred in denying the motion to suppress evidence obtained as a result of the vehicle stop. We affirm the judgment of the trial court.

State of Tennessee v. Felix M. Leach
M2001-02258-CCA-R3-CD
Authoring Judge: Judge Alan E. Glenn
Trial Court Judge: Judge Timothy L. Easter

A Williamson County grand jury indicted the defendant, Felix M. Leach, for possession with intent to sell or deliver cocaine, possession of marijuana, and possession of drug paraphernalia. In a negotiated plea agreement dated June 19, 2001, the defendant pled guilty as a Range II, multiple offender to each of the three counts of the indictment. The plea agreement specified that the three sentences would run concurrently and that all remaining sentencing issues would be determined by the trial court following a sentencing hearing. After a sentencing hearing, the trial court sentenced the defendant to ten years for possession with intent to sell or deliver cocaine, eleven months and twenty-nine days for each of the other two counts, and ordered the sentences to be served consecutively to a previous sentence that he was on probation for at the time. The defendant raises two issues on appeal: (1) whether the ten-year sentence for possession with intent to sell or deliver cocaine was excessive; and (2) whether the three sentences should be concurrent or consecutive to the sentence for which he was on probation at the time. After reviewing the record, we affirm the judgment of the trial court.

State of Tennessee v. Thomas Michael Shinavar
M2002-00598-CCA-R3-CD
Authoring Judge: Judge Joe G. Riley
Trial Court Judge: Judge Michael R. Jones

A Montgomery County jury convicted the defendant, Thomas Michael Shinavar, of driving under the influence (DUI), his fourth offense and a Class E felony. On appeal, the defendant presents the following issues: (1) whether the indictment charging DUI failed to satisfy constitutional and statutory requirements; and (2) whether the indictment failed to provide adequate notice to the defendant that he was charged with a felony rather than a misdemeanor. After reviewing the record, we affirm the judgment of the trial court.

State of Tennessee v. Richard Lacardo Elliott
M2001-01990-CCA-R3-CD
Authoring Judge: Judge Thomas T. Woodall
Trial Court Judge: Judge Michael R. Jones

Defendant, Richard Lacardo Elliott, appeals his convictions in the Circuit Court of Montgomery County for aggravated robbery and aggravated kidnapping. Defendant argues that his conviction for aggravated kidnapping may not stand pursuant to the Tennessee Supreme Court’s holding in State v. Anthony, 817 S.W.2d 299 (Tenn. 1991). He further contends that the evidence at trial was insufficient to support his convictions, and that the trial court should have granted a motion for mistrial based upon the State’s improper comments during closing argument. We disagree, and affirm the judgments of the trial court.

State of Tennessee v. Daniel James Cosgrove
M2001-02127-CCA-R3-CD
Authoring Judge: Judge Joseph M. Tipton
Trial Court Judge: Judge William Charles Lee
The defendant, Daniel James Cosgrove, pled guilty in the Bedford County Circuit Court to nineteen felonies and thirty-one misdemeanors. The trial court sentenced him to an effective sentence of twenty-one years and eleven months, twenty-nine days in confinement to be served consecutively to another sentence for which his probation was revoked. The defendant appeals, claiming that the trial court failed to apply and weigh mitigating factors properly and improperly ordered consecutive sentencing. We affirm the judgments of the trial court.

State of Tennessee v. Quawn L. Lillard
M2001-02136-CCA-R3-CD
Authoring Judge: Judge J. Curwood Witt, Jr.
Trial Court Judge: Judge Steve R. Dozier

The defendant, Quawn L. Lillard, appeals his Davidson County Criminal Court convictions for aggravated robbery and aggravated assault. On appeal, he insists that the convicting evidence is not legally sufficient to support his convictions, and he claims that the trial court should not have admitted the identification testimony of one of the victims. After review, we affirm the judgments of the trial court.

State of Tennessee v. James Corey Edmiston
M2002-00059-CCA-R3-CD
Authoring Judge: Judge David H. Welles
Trial Court Judge: Judge W. Charles Lee

A jury convicted the Defendant, James Corey Edmiston, of attempted second degree murder, especially aggravated robbery, especially aggravated burglary, aggravated assault, vandalism and resisting arrest. The trial court merged the aggravated assault conviction into the attempted murder conviction. The court sentenced the Defendant as a Range I offender to ten years for the attempted murder; twenty-four years for the especially aggravated robbery; ten years for the especially aggravated burglary; and eleven months, twenty-nine days for each of the two misdemeanor convictions. The trial court ordered the felony sentences to run consecutively to each other, with the misdemeanor sentences to run concurrently with the attempted murder sentence, for an effective sentence of forty-four years. The Defendant now appeals, challenging the sufficiency of the evidence for the attempted second degree murder conviction, and the trial court's imposition of consecutive sentences. We affirm the trial court's judgment.

State of Tennessee v. Jason Allen Mobley
W2001-02022-CCA-MR3-CD
Authoring Judge: Judge Joseph M. Tipton
Trial Court Judge: Judge Julian P. Guinn

The defendant, Jason Allen Mobley, appeals as of right from the Henry County Circuit Court's revoking his eight-year probation. The defendant contends that the trial court erroneously revoked his probation without sufficient proof that he was using drugs. We affirm the trial court.

State of Tennessee v. Joe L. Jones
W2002-00168-CCA-R3-CD
Authoring Judge: Judge David G. Hayes
Trial Court Judge: Judge William B. Acree

The Appellant, Joe L. Jones, appeals from the sentencing decision of the Weakley County Circuit Court. After a trial by jury, Jones was convicted of casual exchange, a class A misdemeanor. Following a sentencing hearing, Jones received a split confinement sentence of eleven months and twenty-nine days, with forty-five days to be served in the county jail followed by probation. The trial court also imposed a $500 fine. On appeal, Jones contends that the trial court erred in imposing a sentence of continuous confinement and that the fine was excessive. Finding no error, the judgment is affirmed.

Chelsea Pirkle vs. Justin Parker
E2002-01751-COA-R3-CV
Authoring Judge: Presiding Judge Herschel P. Franks
Trial Court Judge: Dale C. Workman
The trial court refused to set aside the Default Judgment. On appeal, we vacate and remand.

Alica Rakestraw vs. Gregory Rakestraw
E2002-01151-COA-R3-CV
Authoring Judge: Judge Houston M. Goddard
Trial Court Judge: Jerri S. Bryant
The sole issue in this divorce case is whether the Trial Court reached the correct decision regarding custody of the parties' child. The Court granted primary custodial care of the parties' daughter, Kendra Paige Rakestraw, then 10 years old, to Gregory Keith Rakestraw ("Father"). Alica Delane Rakestraw ("Mother") argues on appeal that the evidence preponderates against the Court's exercise of discretion in rendering its custody decision, and that the Court erred in denying her motion to alter or amend the judgment and her motion for a new trial. We affirm the judgment of the Trial Court in all respects.

Gweneth J. Freels vs. Evelyn Jones
E2002-00895-COA-R3-CV
Authoring Judge: Presiding Judge Herschel P. Franks
Trial Court Judge: Frank V. Williams, III
Defendant demanded a jury in Answer but the trial judge ruled defendant waived right to a jury trial. On appeal, we affirm.

Nancy Crawford vs. Roger Crawford
E2002-00372-COA-R3-CV
Authoring Judge: Judge David Michael Swiney
Trial Court Judge: Thomas R. Frierson, II
Plaintiff/Appellant Nancy Crawford owns an interest in a parcel of real property located in Hawkins County, Tennessee as tenants in common with the Defendants/Appellees. Appellant Nancy Crawford filed suit seeking a partial partition in kind of the subject property and requesting a tract containing approximately .604 acre be set aside for her. The .604 acre adjoins land owned by Ms. Crawford. The .604 acre contains a barn, which Ms. Crawford and her late husband had maintained, improved, and used since the late 1980's believing it was located on their property. Appellees opposed a partition in kind and requested a partition sale. The Trial Court found it in the manifest best interest of all parties for the property to be sold, rather than partitioned in kind, and ordered a sale. We modify the judgment, affirm as modified, and remand.

Sammy Vest vs. Francis Goswitz
E2001-01613-COA-R3-CV
Authoring Judge: Judge Houston M. Goddard
Trial Court Judge: James B. Scott, Jr.
This is a medical malpractice case filed on January 3, 2000, and amended on January 11 of the same year. The suit was by Sammy W. Vest and his adult children, Anglia M. Somner, Cheryl D. Travis, and Danny W. Vest, against Dr. Francis Goswitz and Dr. Helen Vodopick. The suit seeks damages for the Defendants' failure to refer Mr. Vest to a specialist, resulting in an injury to him as well as to his children. The Trial Judge sustained a motion by the Defendants to dismiss the children as parties Plaintiff, and later a motion for summary judgment as to Mr. Vest's suit. He further granted sanctions pursuant to Rule 11.03 against counsel for the Plaintiff. We affirm.

Michael Eugene Duff v. State of Tennessee
E2000-03041-CCA-R3-PC
Authoring Judge: Judge Joseph M. Tipton
Trial Court Judge: Judge Mary Beth Leibowitz
The petitioner, Michael Eugene Duff, appeals the Knox County Criminal Court’s denial of his petition for post-conviction relief from his convictions for two counts of aggravated rape and one count of aggravated kidnapping for which he received three twenty-five-year sentences to be served consecutively. This court affirmed the judgments of conviction on direct appeal. See State v. Michael Eugene Duff, No. 03C01-501-CR-00008, Knox County (Tenn. Crim. App. Feb. 8, 1996), app. denied (Tenn. July 8, 1996). The petitioner claims that he received the ineffective assistance of counsel because his trial attorney (1) failed to call a DNA serologist to testify and (2) failed to present witnesses who could testify about his physical appearance at the time of the offenses. We conclude that the trial court’s findings are insufficient for us to determine whether the petitioner received the ineffective assistance of counsel. We reverse the trial court’s judgment and remand the case in order for the trial court to make findings of fact and conclusions of law consistent with this opinion.

Michael Eugene Duff v. State of Tennessee - Order
E2000-03041-CCA-R3-PC
The state has filed a Petition to Rehear relative to our opinion’s apparent imposition of limitations upon the trial court’s reconsideration of the facts upon remand. The state asserts that the trial court should have the ability to determine whether prejudice exists by considering the evidence in toto. The state notes that the trial court has not made any findings regarding prejudice and should not be restricted in its assessment. The petitioner responds that our court’s opinion foreclosed any need for the trial court to assess prejudice generally. He states that we have already concluded that prejudice exists if the trial court finds a particular witness to be credible.

Kenneth Smith v. State of Tennessee
W2001-02088-CCA-R3-PC
Authoring Judge: Judge Thomas T. Woodall
Trial Court Judge: Judge Jon Kerry Blackwood

Petitioner, Kenneth Smith, appeals pro se the trial court's dismissal of his Petition for Post-Conviction Relief, which he also filed pro se. The record on appeal does not contain the transcript of the proceedings below. There is nothing in the record to indicate that Petitioner's court-appointed counsel was allowed to withdraw or that Petitioner waived the assistance of counsel on appeal. Pursuant to our holding in Drummer v. State, 6 S.W.3d 520 (Tenn. Crim. App. 1999), the judgment of the trial court is vacated and this case is remanded for the trial court to reinstate the order dismissing the Petition for Post-Conviction Relief. If Petitioner is still indigent, counsel appointed to represent Petitioner at the post-conviction hearing shall continue to represent Petitioner on appeal and the case shall proceed pursuant to the Tennessee Rules of Appellate Procedure.

Kevin Wilkins v. State of Tennessee
W2002-00436-CCA-R3-PC
Authoring Judge: Judge Thomas T. Woodall
Trial Court Judge: Judge John P. Colton, Jr.

Petitioner, Kevin Wilkins, filed his petition for post-conviction relief in the Shelby County Criminal Court on December 6, 2001. The State filed a response moving the trial court to dismiss the petition because it was filed after the statute of limitations had expired. Without a hearing, the trial court entered an order granting the State's request and dismissed the petition on the basis that it was filed past the one-year limitation set forth in Tennessee Code Annotated section 40-30-202. Petitioner filed a timely notice of appeal. We reverse the judgment of the trial court and remand this case for a hearing.

State of Tennessee v. Opal Gause
W2002-01225-CCA-R3-CD
Authoring Judge: Judge Thomas T. Woodall
Trial Court Judge: Judge Clayburn L. Peeples

Defendant, Opal Gause, entered a guilty plea to two counts of aggravated assault. The trial court sentenced Defendant to two consecutive three-year terms, for an effective sentence of six years. The sentences were suspended, and Defendant was placed on probation for the length of his original sentences. A violation warrant was subsequently issued alleging Defendant had failed to meet the conditions of his probation. Following a hearing, Defendant's probation was revoked, and he was ordered to serve his original sentence with credit for time served pre-trial. Defendant now challenges the revocation of his probation. Following a review of the record, we affirm the decision of the trial court.

Troy Buckles vs. Shira Riggs
E2002-00649-COA-R3-CV
Authoring Judge: Judge David Michael Swiney
Trial Court Judge: Thomas R. Frierson, II
Shira Dawn McKay Buckles Riggs ("Mother") and Troy Dale Buckles ("Father") were divorced in 1994. Mother was awarded custody of the parties' minor son. In 2001, Father first sought increased visitation and then custody. Mother claimed Father was in arrears in his child support payments. After a trial, the trial court concluded there had been no material change in circumstances and custody should, therefore, remain with Mother. The trial court determined Father was in arrears in his child support payments in the amount of $13,894. The trial court also prohibited both parties from drinking alcohol "while in possession of the child." Father appeals. We modify the judgment to require the parties to undergo counseling, and affirm as modified.

Kanta Keith, et al vs. Gene Ervin Howerton, et al
E2002-00704-COA-R3-CV
Authoring Judge: Judge Charles D. Susano, Jr.
Trial Court Judge: Dale C. Workman
This case is on appeal for the second time. In the first appeal, we held that the defendants violated the Tennessee Consumer Protection Act ("the Act") in certain pawn transactions with the plaintiffs. We remanded the case to the trial court for a determination of whether the plaintiffs were entitled to treble damages and attorney's fees under the Act. Following a bench trial on these issues, the court below determined that the plaintiffs were not entitled to treble damages, but that they were entitled to a slight augmentation of their compensatory awards. In addition, the trial court awarded attorney's fees and costs, in amounts which are substantially less than those claimed by counsel. The plaintiffs appeal, arguing that the trial court erred in refusing to award treble damages and in its award of fees and costs. By way of a separate issue, the defendants argue that the trial court erred in granting a declaratory judgment to the plaintiff, Kanta Keith ("Mr. Keith"), following the death of his wife, the plaintiff, Darlene Keith ("Mrs. Keith"). We affirm in part, vacate in part and remand.

Carrol Preston Flannary v. Joyce Ann Flannary
E2002-00869-COA-R3-CV
Authoring Judge: Judge David Michael Swiney
Trial Court Judge: Ben K. Wexler

Carrol Preston Flannary v. Joyce Ann Flannary
E2002-00869-COA-R3-CV
Authoring Judge: Judge David Michael Swiney

James Thompson vs. Knoxville Teachers Federal Credit Union
E2002-00780-COA-R3-CV
Authoring Judge: Judge David Michael Swiney
Trial Court Judge: Daryl R. Fansler
James L. Thompson ("Plaintiff") was the principal stockholder, director, and officer of People Personnel Industrial Corporation. Plaintiff began kiting checks when the corporation started having financial difficulties. Plaintiff's actions resulted in a substantial monetary loss to Knoxville Teachers Federal Credit Union ("Credit Union"). After both the corporation and Plaintiff filed for bankruptcy, the parties entered into an agreement whereby the Credit Union agreed not to pursue or assist any other party in pursuing a cause of action against Plaintiff based on the check kiting. Thereafter, Plaintiff was prosecuted in federal court. The Credit Union supplied information to the United States Government pertaining to the amount of its financial losses. After Plaintiff pled guilty in federal court to defrauding the Credit Union, he was ordered to serve a small amount of time in prison and pay restitution of $74,417.29 to the Credit Union. Plaintiff brought this lawsuit claiming the Credit Union pursued the order of restitution in the criminal proceeding and thereby violated the terms of the settlement agreement. The Trial Court granted summary judgment to Defendants, and Plaintiff appeals. We affirm.

The Rogers Group vs. Anderson County
E2002-00409-COA-R9-CV
Authoring Judge: Presiding Judge Herschel P. Franks
Trial Court Judge: Telford E. Forgerty, Jr.
After case was tried, the Trial Judge recused and another Judge was designated who granted a new trial on all issues. On appeal, we affirm.