Opinions

Vances Smith vs. Warden Fred Figueroa
W2001-01572-COA-R3-CV
Authoring Judge: Judge David R. Farmer
Trial Court Judge: Jon Kerry Blackwood
This is an appeal from the trial court's order dismissing a petition for writ of certiorari. We affirm.

State of Tennessee v. Derrann William Estill
M2001-01859-CCA-R3-CD
Authoring Judge: Judge Robert W. Wedemeyer
Trial Court Judge: Judge Lee Russell

The Defendant was convicted of theft of property valued between $1,000 and $10,000, a Class D felony, and criminal trespass. The trial court sentenced him as a Range II, multiple offender to six years incarceration for the theft conviction and to thirty days incarceration for the criminal trespass conviction, with the sentences to be served concurrently. The Defendant argues that insufficient evidence was presented at trial to convict him of theft or criminal trespass. We affirm the judgment of the trial court.

State of Tennessee v. Jerry Breeding
M2001-00043-CCA-R3-CD
Authoring Judge: Judge John Everett Williams
Trial Court Judge: Judge Leon C. Burns, Jr.

The defendant appeals his conviction of aggravated robbery for the armed robbery of the Union Bank and Trust in Rickman, Tennessee. We conclude that the defendant did not prove his claim of ineffective assistance of counsel and the record supports the trial court's finding that the defendant personally waived his right to testify. Furthermore, the record reveals that the defendant introduced evidence about an uncharged crime in order to impeach testimony by a witness for the state and, therefore, cannot challenge the introduction of such evidence on appeal. The trial court properly fulfilled its duty to act as a thirteenth juror. In addition, there is sufficient evidence to support the defendant's conviction for aggravated robbery. The judgment of the trial court is affirmed.

State of Tennessee v. Khanh Le
W1998-00637-CCA-R3-CD
Authoring Judge: Judge Norma McGee Ogle
Trial Court Judge: Judge W. Fred Axley
On November 10, 1997, the appellant, Khanh V. Le, was convicted by a jury in the Shelby County Criminal Court of one count of first degree premeditated murder. The trial court sentenced the appellant to a term of life imprisonment in the Tennessee Department of Correction. The appellant filed an appeal, and this court affirmed the judgment of the trial court on March 9, 2000.  Accordingly, the appellant filed an application for permission to appeal to our supreme court pursuant to Tenn. R. App. P. 11. The supreme court granted the appellant’s application for the sole purpose of remanding the case to this court for reconsideration in light of the recent case of State v. Ely, 48 S.W.3d 710 (Tenn.), cert. denied, __ U.S. __, 122 S. Ct. 408 (2001). Upon reconsideration, we reverse the judgment of the trial court and remand this case for a new trial.

State of Tennessee v. Khanh Le - Concurring
W1998-00637-CCA-R3-CD
Authoring Judge: Judge Thomas T. Woodall
Trial Court Judge: Judge W. Fred Axley
Consistent with my conclusion when this case was originally before our court, I concur that it was reversible error for the trial court to not charge the jury with the lesser-included offense of second degree murder. Along with Judge Welles, I disagree with the statement in the lead opinion by Judge Ogle that “a failure to instruct a jury on lesser-included offenses will only be found harmless beyond a reasonable doubt under the circumstances presented” in State v. Williams, 977 S.W.2d 101, 106 (Tenn. 1998). There may be other circumstances, not presently before our court, where the erroneous failure to charge a lesser-included offense would be harmless error.

State of Tennessee v. Jessie James Austin
W2001-00120-CCA-R3-CD
Authoring Judge: Judge Joseph M. Tipton
Trial Court Judge: Judge William B. Acree

The defendant, Jessie James Austin, appeals as of right his convictions by a Weakley County Circuit Court jury for two counts of aggravated assault, a Class C felony. The trial court sentenced him as a Range III, persistent offender to twelve years in the Department of Correction for each count to be served concurrently. The defendant contends that the evidence is insufficient to prove either count of aggravated assault and that the trial court should have instructed the jury on the lesser included offense of reckless aggravated assault. We affirm the trial court's judgments of conviction.

State of Tennessee v. LaKeisha Jones
W2000-02962-CCA-R3-CD
Authoring Judge: Judge Joseph M. Tipton
Trial Court Judge: Judge Mark Agee
A Haywood County Circuit Court jury convicted the defendant, Lakeisha Jones, of second degree murder, and the trial court sentenced her as a violent offender to fifteen years in the Tennessee Department of Correction. The defendant appeals, contending that the evidence is insufficient to support her conviction and that the trial court failed to instruct the jury as to mutual combat. We affirm the judgment of conviction.

99-03-19-01
99-03-19-01
Trial Court Judge: J. Weber Mccraw

Kamel Al-Abes v. Friction Master, L.P.,
W2000-02015-WC-R3-CV
Authoring Judge: L. Terry Lafferty, Senior Judge
Trial Court Judge: James S. Russell, Judge
Plaintiff presents three appellate issues: (1) Whether the findings of the trial court were contrary to the preponderance of the evidence; (2) whether the trial court erred in denying Plaintiff future medical care; and (3) whether the trial court erred in denying Plaintiff discretionary costs. After a review of the entire record, the Panel concludes that the judgment of the trial court on the award of fifteen percent (15%) permanent disability is affirmed. However, we reverse the trial court's judgment's denial of future medical care and denial of certain discretionary costs.

William Perry vs. Ricki Perry
W2001-01350-COA-R3-CV
Authoring Judge: Presiding Judge Alan E. Highers
Trial Court Judge: Martha B. Brasfield

William Perry vs. Ricki Perry
W2001-01350-COA-R3-CV
Authoring Judge: Presiding Judge Alan E. Highers
Trial Court Judge: Martha B. Brasfield

William Perry vs. Ricki Perry
W2001-01350-COA-R3-CV
Authoring Judge: Presiding Judge Alan E. Highers
Trial Court Judge: Martha B. Brasfield

Joel Petty vs. Daimler Chrysler
W2001-01152-COA-R3-CV
Authoring Judge: Judge David R. Farmer
Trial Court Judge: D. J. Alissandratos
Plaintiff in this case alleges that Defendant violated Tennessee's motor vehicle glass safety statutes which were in effect when Plaintiff purchased his vehicle in 1998. The court below found no violation and entered judgment for Defendant. We find that Plaintiff failed to introduce evidence of injury or damages and therefore affirm judgment for Defendant.

Union Planters vs. American Home
W2001-01124-COA-R3-CV
Authoring Judge: Judge Holly M. Kirby
Trial Court Judge: Karen R. Williams
This is an insurance case dealing with a standard loss-payee clause. On September 1, 1980, the appellee insurance company issued an aircraft hull and liability insurance policy to a commercial airline. The policy had an attached breach of warranty endorsement specifying the appellant bank as the loss payee for a particular airplane. In November 1980, the airline cancelled its insurance coverage for the airplane without giving notice to the bank. In December 1980, the airplane was found in Puerto Rico and seized by the United States government as an instrument of drug trafficking. When the airplane was seized, the seats and log books were missing. The bank sought recovery for the loss to the airplane under the breach of warranty endorsement attached to the original insurance policy. The insurance company denied coverage, and the bank sued the insurance company in the trial court below. The trial court granted summary judgment in favor of the insurance company. The bank now appeals. We reverse, finding that because notice of the cancellation of the insurance policy was not given to the loss-payee bank, the cancellation was not effective as to the loss-payee.

Ishmael Mace vs. Phyllis Mace
W2001-00574-COA-R3-CV
Authoring Judge: Judge Holly M. Kirby
Trial Court Judge: Karen R. Williams

Ishmael Mace vs. Phyllis Mace
W2001-00574-COA-R3-CV
Authoring Judge: Judge Holly M. Kirby
Trial Court Judge: Karen R. Williams

Stacy Turney vs. Ronald Turney
W2001-00492-COA-R3-CV
Authoring Judge: Judge David R. Farmer
Trial Court Judge: Joe C. Morris
This appeal from a divorce decree raises issues concerning the classification and distribution of the parties' property, and the determination of income for the purposes of setting child support. We modify the distribution of property and remand for determination of child support.

John/Diana Asbury vs. Lagonia-Sherman
W2001-01821-COA-R3-CV
Authoring Judge: Judge Holly M. Kirby
Trial Court Judge: D'Army Bailey

John/Diana Asbury vs. Lagonia-Sherman
W2001-01821-COA-R3-CV
Authoring Judge: Judge Holly M. Kirby
Trial Court Judge: D'Army Bailey

State of Tennessee v. Horace Demon Pulliam
M2001-00417-CCA-R3-CD
Authoring Judge: Judge Joe G. Riley
Trial Court Judge: Judge Cheryl A. Blackburn

The defendant was indicted by a Davidson County Grand Jury on one count of premeditated first degree murder and two counts of attempted first degree murder. Following a jury trial, the defendant was convicted of the indicted premeditated first degree murder count and two counts of the lesser-included offense of attempted second degree murder. The defendant was sentenced to life imprisonment for premeditated first degree murder and two 11-year terms for the two counts of attempted second degree murder, with all sentences to run consecutively, for a total effective sentence of life plus 22 years. In this appeal, the defendant contends (1) the evidence was insufficient to sustain the convictions; (2) the trial court erroneously refused to charge reckless endangerment as a lesser-included offense of attempted first degree murder; and (3) the trial court erroneously sentenced the defendant to consecutive sentences. After a thorough review of the record, we conclude the trial court erroneously failed to charge reckless endangerment as a lesser-included offense of attempted first degree murder and remand for a new trial on these two counts. We affirm the conviction and life sentence for premeditated first degree murder.

Harry D. Clardy v. State of Tennessee
M2001-01029-CCA-R3-PC
Authoring Judge: Judge Joe G. Riley
Trial Court Judge: Judge John H. Gasaway, III

The petitioner in this post-conviction matter was originally convicted of theft of property over $10,000 in value, a Class C felony, and sentenced to 15 years imprisonment as a Range III persistent offender. After his conviction was affirmed on direct appeal, he sought post-conviction relief which was denied by the post-conviction court. In this appeal, the petitioner alleges trial counsel was ineffective for failing to (1) recommend he accept the state's plea offer, and (2) challenge an erroneous jury instruction on the range of punishment. After a thorough review of the record, we conclude the petitioner received ineffective assistance of counsel based upon counsel's failure to object to the erroneous range of punishment jury charge at trial and failure to argue the error on direct appeal. Accordingly, we reverse and remand for a new trial.

State of Tennessee v. Charles M. Thomas
M2000-02576-CCA-R3-CD
Authoring Judge: Judge Joe G. Riley
Trial Court Judge: Judge Steve R. Dozier

The defendant, Charles M. Thomas, appeals his conviction for possession of greater than .5 grams of cocaine with the intent to sell and the trial court's order requiring his resulting ten-year sentence to be served consecutively to prior sentences. This case presents three issues for our determination: (1) whether evidence against the defendant was the fruit of an illegal detention and search; (2) whether the evidence was sufficient to support the defendant's conviction; and (3) whether the trial court erred by ordering the defendant's sentence to be served consecutively to his prior sentences. For the reasons set forth below, we conclude there is no reversible error; therefore, we affirm the judgment of the trial court.

State of Tennessee v. Kenneth Lee Kendrick
E2001-00817-CCA-R3-CD
Authoring Judge: Judge Joseph M. Tipton
Trial Court Judge: Judge R. Jerry Beck

The defendant, Kenneth Lee Kendrick, appeals the Sullivan County Criminal Court's revocation of his probation. We affirm the trial court.

State of Tennessee v. Nathan Scott Potter - Concurring
E2001-01760-CCA-R3-CD
Authoring Judge: Judge Joseph M. Tipton
Trial Court Judge: Judge Phyllis H. Miller

I concur in the results reached in the majority opinion. However, I disagree with its implicit conclusion that legislative action regarding pretrial procedure in cases before the courts does not infringe upon the separation of powers doctrine.

State of Tennessee v. Jeffrey L. Marcum
W2000-02698-CCA-R3-CD
Authoring Judge: Judge Norma McGee Ogle
Trial Court Judge: Judge Roy B. Morgan, Jr.

The appellant, Jeffrey L. Marcum, appeals his convictions by a jury in the Madison County Circuit Court of one count of rape of a child, one count of aggravated sexual battery, and one count of incest. In this appeal, the appellant raises the following issues for our consideration: (1) whether the trial court erred under Tenn. R. Evid. 412 in limiting his cross-examination of the victim concerning her "sexual history and knowledge;" (2) whether the evidence adduced at trial is sufficient to support the jury's "verdict" of guilt; and (3) whether the trial court erred in failing to instruct the jury on the lesser-included offense of attempt to commit rape of a child. Following a careful review of the record and the parties' briefs, we affirm the judgments of the trial court for the offenses of aggravated sexual battery and incest, but we reverse the judgment for the offense of rape of a child and remand the case for a new trial on that charge.