Opinions

State of Tennessee v. Mario Rogers
W1999-01454-CCA-R3-CD
Authoring Judge: Judge Robert W. Wedemeyer
Trial Court Judge: Judge Arthur T. Bennett

In 1999, a Shelby County jury found the Defendant guilty of aggravated robbery, and the trial court sentenced him as a Range I, standard offender to eight years incarceration. In this appeal as of right, the Defendant presents the following issues for our review: (1) whether the evidence presented at trial was sufficient to support his conviction; (2) whether the trial court erred by admitting into evidence the gun alleged to have been used in the robbery; (3) whether the trial court erred by allowing testimony by the victim concerning the death of the victim's mother; (4) whether the trial court improperly instructed the jury; and (5) whether the cumulative effect of errors at trial warrants a new trial. Having reviewed the record, we find no error and accordingly affirm the judgment of the trial court.

State of Tennessee v. Michael P. Healy
W1999-01510-CCA-R3-CD
Authoring Judge: Judge Jerry L. Smith
Trial Court Judge: Judge Joseph B. Dailey

On November 24, 1998, the Shelby County Grand Jury indicted the Defendant for one count of aggravated robbery and one count of aggravated assault. Following a subsequent jury trial, the Defendant was convicted on both counts. On September 30, 1998, after a sentencing hearing, the trial court sentenced the Defendant as a career offender to serve thirty years incarceration for the aggravated robbery consecutively to fifteen years for the aggravated assault. The court also ordered both sentences served consecutively to a sentence for which the Defendant was on parole. On appeal, the Defendant claims that the trial court should have instructed the jury to consider robbery and theft as lesser-included offenses of aggravated robbery and that the trial court should have instructed the jury to consider reckless endangerment, reckless aggravated assault and simple assault as lesser-included offenses of aggravated assault. After a review of the record, we affirm the judgment of the trial court.as lesser-included offenses of aggravated assault. After a review of the record, we affirm the judgment of the trial court., we affirm the judgment of the trial court.

State of Tennessee v. Eric Phillips
W1999-01800-CCA-R3-CD
Authoring Judge: Judge John Everett Williams
Trial Court Judge: Judge John P. Colton, Jr.

The defendant appeals and asserts that the evidence was insufficient to support his conviction for first degree premeditated murder. After review, we hold that the evidence is sufficient; therefore, we affirm the defendant's conviction.

State vs. Frank Johnson
W2000-00386-CCA-R3-CD
Authoring Judge: Judge Alan E. Glenn
Trial Court Judge: Chris B. Craft
The defendant was indicted by a Shelby County Grand Jury for driving while an habitual motor vehicle offender, felony evading arrest, and driving under the influence of an intoxicant, fourth offense (felony DUI), all charges arising from a single incident. The defendant pled guilty to driving while an habitual motor vehicle offender, a Class E felony, with punishment reserved until after trial of the other offenses. Following a jury trial, the defendant was found guilty of felony evading arrest, a Class E felony, not guilty of felony DUI, and sentenced to consecutive, six-year terms as a career offender for driving while an habitual motor vehicle offender and for felony evading arrest, resulting in an effective sentence of twelve years. The trial court also assessed fines of $2000 on each conviction. In this appeal as of right, the defendant argues that the evidence was insufficient as to the felony evading arrest conviction, that the jury should have been instructed as to lesser-included offenses, and that the sentences should not be served consecutively. Based upon our review, we affirm the judgments of the trial court.

State of Tennessee v. Eric D. Thomas
W1999-00337-CCA-R3-CD
Authoring Judge: Judge David H. Welles
Trial Court Judge: Judge Joseph B. Dailey

The Defendant, Eric D. Thomas, pled guilty to four counts of robbery and was sentenced to six years for each conviction. The sentences were ordered to run consecutively, which ruling the Defendant now appeals. The judgment of the trial court ordering the Defendant's sentences to run consecutively is reversed, and this matter is remanded for resentencing on the issue of consecutive sentences.

State vs. Reginald Terry
W2000-00090-CCA-R3-CD
Authoring Judge: Judge Robert W. Wedemeyer
Trial Court Judge: W. Fred Axley
The Defendant was convicted by a Shelby County jury of attempted aggravated burglary. The Defendant was sentenced as a Range I, standard offender to three years incarceration. The Defendant now appeals, arguing that (1) in spite of his untimely motion for a new trial, this Court should consider each issue he has presented on appeal, (2) there was insufficient evidence to support a conviction against the Defendant for attempted aggravated burglary, (3) the trial court erred in refusing to instruct the jury on the lesser-included offenses of aggravated criminal trespass and criminal trespass, (4) the trial court made an improper comment on the evidence in violation of the Tennessee Constitution, and (5) the trial court erred in allowing in rebuttal proof of other crimes committed by the Defendant. We affirm the judgment of the trial court.

Jerry Anderson v. State of Tennessee
W2000-03141-CCA-R3-CO
Authoring Judge: Judge Joe G. Riley
Trial Court Judge: Judge Lee Moore

Petitioner appeals the denial by the trial court of his writ of habeas corpus and writ of certiorari. Petitioner contended in his petition that he previously pled guilty in the Criminal Court of Madison County to the offenses of facilitation of first degree murder, conspiracy to commit especially aggravated robbery, and arson, and received an effective sentence of 60 years. He further contended that court did not have jurisdiction to try him as an adult; his rights to double jeopardy were violated as a result of his transfer to the Criminal Court; and he received ineffective assistance of trial counsel. On appeal, he claims the trial court erred in dismissing his petition without appointing counsel, without conducting a hearing, and by failing to make findings of fact and conclusions of law. We affirm the judgment of the trial court.

State vs. Russell Snider
W2000-01240-CCA-R3-CD
Authoring Judge: Judge David H. Welles
Trial Court Judge: Chris B. Craft
The Defendant, Russell Snider, was convicted by a jury of third offense driving under the influence (DUI). He was sentenced to eleven months, twenty-nine days, with four months and twenty-nine days suspended. In this appeal as of right, the Defendant asserts (1) that he was prejudiced by the video recording of his performance of field sobriety tests because the video recording depicts an unqualified officer performing the horizontal gaze nystagmus test and (2) that the DUI sentencing statute is void for vagueness because it fails to give a person of ordinary intelligence fair notice that his or her conduct is forbidden by the statute. We hold that the Defendant was not prejudiced by the admission of the video and that the DUI sentencing statute is not void for vagueness. Therefore, we affirm the judgment of the trial court.

State of Tennessee v. Joyce Ann Rice
W2000-01766-CCA-R3-CD
Authoring Judge: Judge Alan E. Glenn
Trial Court Judge: Judge Roger A. Page

The defendant, a construction company payroll clerk, was convicted of fourteen counts of forgery, Class E felonies, and one count of theft of property over $1000, a Class D felony, for utilizing her position at the company to write and cash invalid checks on her employer's account. She was sentenced as a Range II, multiple offender to three years on each forgery conviction, and six years on the theft conviction, to be served concurrently for an effective sentence of six years. In this appeal as of right, the defendant argues that the trial court erred in allowing evidence of her prior crimes to be admitted at trial, and that the evidence was not sufficient to support her convictions. After a careful review, we conclude that the trial court did not err in allowing the State to impeach the defendant's credibility by questioning her about her prior convictions, and that the evidence was sufficient to support the jury's verdict. Accordingly, we affirm the judgment of the trial court.

Jerry L. Luster v. J. Larry Craven, Jr.
W2000-02217-CCA-R3-CD
Authoring Judge: Special Judge Cornelia A. Clark
Trial Court Judge: Judge Roy B. Morgan, Jr.

The petitioner, Jerry L. Luster, appeals pro se the summary dismissal of his petition for writ of habeas corpus. Because the petition was filed in the wrong county, we affirm the trial court's dismissal of the request for habeas corpus relief.

State of Tennessee v. Marcia C. Robinson and Sammy Claude Wilson
W2000-02085-CCA-R3-CD
Authoring Judge: Judge L. Terry Lafferty
Trial Court Judge: Judge Roy B. Morgan, Jr.

After a jury trial, Defendants were convicted of one count of attempt to manufacture methamphetamine and two counts of possession of methamphetamine. The trial court sentenced each Defendant to three (3) years in the Department of Correction for attempt to manufacture methamphetamine and eleven (11) months and twenty-nine (29) days for possession of methamphetamine. In this appeal as of right, Defendants assert that the trial court erred as to whether Defendant, Sammy Wilson, gave Investigator Markin consent to search his truck. From our review of the transcript of the motion to suppress, the trial record, briefs of the parties and applicable law, we affirm the judgment of the trial court.

Michael T. Burum v. Bnfl, Incorporated and Hartford
E2000-01383-WC-R3-CV
Authoring Judge: John K. Byers, Sr. J.
Trial Court Judge: James B. Scott, Judge
This workers' compensation appeal has been referred to the SpecialWorkers' 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 awarded the plaintiff, who fell at work, permanentpartial disabilityof 5 percent to the left leg. We affirm the decision of the trial court. Tenn. Code Ann. _ 5-6-225(e) (1999) Appeal as of Right; Judgment of the Circuit Court is Affirmed JOHN K. BYERS, SR. J., in which E. RILEY ANDERSON, C. J., and ROGER E. THAYER, SP. J., joined. Robert R. Davies, Knoxville, Tennessee, for the appellants, BNFL, Inc. and Hartford Insurance Company. Roger L. Ridenour, Clinton, Tennessee, for the appellee, Michael T. Burum. 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). Plaintiff's History The plaintiff, thirty-nine years of age at the time of trial, is a high school graduate. He attended classes at Tennessee Technical Institute and the University of Tennessee where he studied computer science. The plaintiff also served for eight years in the United States Armed Forces working in communications, computers, radios and electrical repair. The plaintiff's job history consists of work as a machine operator, a service desk employee and a paper technician with a large paper manufacturer. The plaintiff worked for the defendant, who contracted with the K-25 facility for waste management, as a waste management employee. On November 2, 1998, the plaintiff was carrying out his duties for the defendant when he fell and twisted his knee. The plaintiff eventually underwent surgery on the left knee. He testified the knee still causes him problems, and he can no longer participate in activities or work as before the injury. Discussion The trial court's decision in this case appears to be based mainly on the testimony of the plaintiff. Where the trial judge has made a determination based upon the testimony of witnesses whom he has seen and heard, great deference must be given to that finding in determining whether the evidence preponderates against the trial judge's determination. See Humphrey v. David Witherspoon, Inc., 734 S.W.2d 315 (Tenn. 1987). When the trial judge sees and hears the witnesses, it is not for this Court to determine whether a witness has so far destroyed his credibility by inconsistent statements that the trial judge is unable to give credence to any of the witness' testimony. The trial judge's finding of fact in this regard is conclusive if there is any evidence to support it. Walls v. Magnolia Truck Lines, Inc., 622 S.W.2d 526 (Tenn. 1981). In this case, the trial court made no specific finding regarding the plaintiff's credibility or lack thereof. We find nothing in the record to undermine the trial court's decision to credit the testimony of the plaintiff. Both parties in this action agreed at trial that a worker does not have to show vocational disability or loss of earning capacity to be entitled to the benefits for the loss of use of a scheduled member. Duncan v. Boeing Tenn., Inc., 825 S.W.2d 416 (Tenn. 1992). However, the plaintiff may provide such proof to the court as a factor for the court to consider when determining loss of use. In this case, the plaintiff testified as to the loss of use of his leg. He stated he did not believe he could do jobs he had previously done; he also testified he could no longer participated in sports_baseball, basketball, softball_as he had previously done. The plaintiff testified he could neither sit nor walk for long periods of time without pain and told the trial court that the injury bothered him "pretty much all the time." The plaintiff's testimony is unrefuted; the defendants offered no rebuttal proof at trial regarding the plaintiff's testimony about his vocational prospects -2-

Hopewell Baptist Church vs. Southeast Window Mfg. Co., et al
E2000-02699-COA-R3-CV
Authoring Judge: Judge David Michael Swiney
Trial Court Judge: W. Dale Young
Hopewell Baptist Church brought suit against defendant Southeast Window Mfg. LLC., alleging that it was a successor corporation and liable under a contractual warranty given by its predecessor. The Trial Court ruled that the defendant was a successor corporation and had expressly or impliedly assumed the obligations under its predecessor's warranty through the acts of its agent. We reverse.

Jerry Brooks vs. Melissa Ibsen, et al
E2000-02870-COA-R3-CV
Authoring Judge: Judge David Michael Swiney
Trial Court Judge: Billy Joe White
Jerry Brooks ("Plaintiff") contracted with Joe Ibsen d/b/a Century Wholesale Pool Supply, Inc. ("Defendant"), for the installation of a swimming pool. Plaintiff received a limited warranty. After the swimming pool developed several cracks and the parties could not reach agreement on the proper way to repair the pool, Plaintiff had the pool repaired in the manner recommended by an engineer he had retained. This lawsuit followed. The Trial Court awarded Plaintiff $61,531.28 in damages. We reduce the judgment to $51,371.28 and affirm as modified.

Tonya Sexton vs. Hartco Flooring Co.
E2000-02489-COA-R3-CV
Authoring Judge: Presiding Judge Herschel P. Franks
Trial Court Judge: Billy Joe White
The Trial Court granted defendant summary judgment on plaintiff's claims of sexual harassment and retaliatory discharge from employment. On appeal, we affirm judgment on the sexual harassment claim, but vacate and remand on claim of retaliatory discharge.

Johnson City, TN vs. Steven Taylor & Elease Taylor
E2000-02491-COA-R3-CV
Authoring Judge: Presiding Judge Herschel P. Franks
Trial Court Judge: Jean A. Stanley
In this condemnation action, defendants attempted to appeal during pendency of the action in the Trial Court. This Court determined there was no basis to treat the issue as either an interlocutory appeal or extraordinary appeal, and dismissed appeal.

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Danny Middleton v. Porcelain Products Company
E2000-01464-WC-R3-CV
Authoring Judge: Howell N. Peoples, Special Judge
Trial Court Judge: Daryl Fansler, Chancellor
The employee appeals and contends the trial court erred (1) in finding his medical impairment to be eleven percent instead of eighteen percent to the body, (2) in concluding that he has employment opportunities available locally, and (3) in failing to consider economic feasibility in determining local employment opportunities. We affirm the judgment of the trial court.

State of Tennessee v. Kenneth S. Griffin
E2000-02471-CCA-R3-CD
Authoring Judge: Judge Thomas T. Woodall
Trial Court Judge: Judge Ray L. Jenkins

Defendant, Kenneth Griffin, was found guilty of burglary (Class D) and theft (Class D) following a bench trial. He was sentenced as a career offender on each conviction to twelve (12) years incarceration, and the sentences were ordered to be served consecutively. The Defendant, with counsel, appealed the conviction raising the sole issue of the sufficiency of the evidence. This court affirmed. State v. Kenneth S. Griffin, C.C.A. No. 03C01-9811-CR-00406, 1999 Tenn. Crim. App. LEXIS 1316, Knox County (Tenn. Crim. App., Knoxville, Dec. 27, 1999). Subsequently, Defendant timely filed a petition for post-conviction relief alleging, apparently among other issues, that he received ineffective assistance of counsel on appeal because appellate counsel did not raise as an issue the consecutive sentencing ordered by the trial court. The post-conviction court, in a written order, granted Defendant a "delayed appeal" as "authorized under TENNESSEE CODE ANNOTATED SECTION. 40-30-213." The post-conviction court's order limited the delayed appeal to the sole issue "of the correctness of [defendant's] sentence." However, the post-conviction court, while impliedly finding ineffective assistance of counsel for not raising the sentencing issue on direct appeal, made no finding that the Petitioner was prejudiced by the deficient representation. In any event, we find that the granting of a delayed appeal from the original conviction is not authorized by statute, and accordingly, this appeal from the sentence imposed in the original convictions is dismissed.

State of Tennessee v. Ricky Eugene Cofer
E2000-01499-CCA-R3-CD
Authoring Judge: Presiding Judge Gary R Wade
Trial Court Judge: Judge James B. Scott, Jr.

The defendant, Ricky Eugene Cofer, was convicted of aggravated robbery. The trial court imposed a Range II sentence of 15 years. In this appeal of right, the defendant contends that his indictment for aggravated robbery was legally insufficient; that the evidence was insufficient to convict; and that his trial counsel was ineffective. The judgment is affirmed.

Franklin Parton v. State of Tennessee
E2000-01511-CCA-R3-CD
Authoring Judge: Judge Thomas T. Woodall
Trial Court Judge: Judge Ray L. Jenkins

The petitioner/appellant, Franklin Parton, filed a pro se "Petition for Writ of Habeas Corpus" in the Knox County Criminal Court, which was dismissed by the trial court without an evidentiary hearing. Petitioner filed a motion for reconsideration and for treatment of the petition as a petition for writ of error coram nobis. This motion was also summarily denied by the trial court. We affirm the judgment of the trial court.

State of Tennessee v. Takeita M. Locke
E2000-00923-CCA-R3-CD
Authoring Judge: Judge Alan E. Glenn
Trial Court Judge: Judge Richard R. Baumgartner

The defendant was convicted in the Knox County Criminal Court of especially aggravated robbery and felony murder. She timely appealed, arguing that the State had failed to show that statements she gave while a juvenile were admissible, that the trial court erred in not instructing as to lesser-included offenses or that the jury must find whether felony murder was a "natural and probable consequence" of especially aggravated robbery, and that the evidence was insufficient to sustain the convictions. Based upon our review, we affirm the judgments of the trial court.

Harry M. Pack vs. Tina Lewin Ponak
M2000-02285-COA-R3-CV
Authoring Judge: Judge Ben H. Cantrell
Trial Court Judge: Lee Russell
The Lincoln County Circuit Court granted the appellee's motion for summary judgment allowing the sale of real property held as joint tenants with the right of survivorship. We find, however, that whether there is an agreement not to partition the property is a disputed question of fact. We reverse the trial court and remand for further proceedings in accordance with this opinion.

Shirley Breeding vs. Robert Edwards, et al
E2000-01900-COA-R3-CV
Authoring Judge: Judge Charles D. Susano, Jr.
Trial Court Judge: Wheeler A. Rosenbalm
We are asked to decide whether the Supreme Court's decision in the case of Brown v. Wal-Mart Discount Cities, 12 S.W.3d 785 (Tenn. 2000), is applicable to a case in which a plaintiff seeks to recover under the uninsured motorist provisions of its policy based upon the alleged negligence of an unknown motorist, the existence of whom is first asserted by a named defendant. In the instant case, a vehicle driven by the plaintiff Shirley Irene Breeding was struck by a vehicle driven by the defendant Robert Lewis Edwards and owned by the defendant Johnston Coca Cola Bottling Group, Inc. ("Johnston"). She filed a complaint against these defendants within the period of the statute of limitations and secured the service of process upon her uninsured motorist ("UM") carrier, the appellee Farmers Insurance Exchange ("Farmers"). Outside the period of the statute of limitations, the defendants amended their answer to allege that an unknown motorist caused or contributed to the accident. Within 90 days, Breeding amended her complaint to add John Doe, i.e., the unknown driver, as a party defendant. Farmers moved to dismiss the claim against it. It relied on Brown, a slip and fall case. The trial court agreed with Farmers and dismissed Breeding's claim. Breeding appeals, asserting, inter alia, that Brown does not apply to the instant case. We reverse.

Donald Andrews vs. Barbara Andrews
M2000-00163-COA-R3-CV
Authoring Judge: Presiding Judge Patricia J. Cottrell
Trial Court Judge: Tom E. Gray
In this post-divorce case, each party sought modification of the child support order. The obligor father sought a decrease based on the older child's eighteenth birthday and graduation from high school. The obligee mother sought an increase based upon her belief that the father's income had increased. The trial court ordered a decrease based upon the older child's emancipation, but increased the amount due for the remaining minor child. The mother appeals, contending that the trial court failed to consider some of the father's work related benefits when setting the support. Because the mother had the burden of proving additional income to the father, and because she failed to meet that burden, we affirm the trial court.