TBALink Opinion-Flash

April 29, 1998 -- Volume #4 -- Number #069

Here is today's issue of TBALink Opinion-Flash. What follows is the document name, first paragraph and the names of the attorneys for the parties (If you know one of them you might want to give them a call, chances are they don't know about the opinion yet) of each electronic opinion/rules released TODAY from the three appellate courts.

This Issue (IN THIS ORDER):
04-New Opinons From TSC
01-New Opinons From TSC-Rules
02-New Opinons From TSC-Workers Comp Panel
13-New Opinons From TCA
06-New Opinons From TCCA

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George Dean
TBALink Chief Editor


STATE OF TENNESSEE
vs.
BARBARA BYRD

CourtTSC

Attorneys: 

FOR APPELLANT:              FOR APPELLEE:

EDWARD C. MILLER            JOHN KNOX WALKUP
PUBLIC DEFENDER             ATTORNEY GENERAL AND REPORTER
DANDRIDGE
                            MICHAEL J. FAHEY II
                            ASSISTANT ATTORNEY GENERAL
                            NASHVILLE
                         
Judge:HOLDER

First Paragraph:

We granted this appeal to address the validity of an indictment that
aggregates, under Tenn. Code Ann. S 39-14-103, the value of stolen
property belonging to different owners.  We hold that aggregation of
value is permissible under S 39-14-103 when a defendant simultaneously
exercises possession or control over stolen property belonging to
different owners.

URL:http://www.tba.org/tba_files/TSC/byrdbarb_opn.WP6
Opinion-Flash

STATE OF TENNESSEE
vs.
JOSEPH CATTONE

CourtTSC

Attorneys:  

FOR APPELLANTS:             FOR APPELLEES:

CHARLES M. CORN             JOHN KNOX WALKUP
PUBLIC DEFENDER             ATTORNEY GENERAL AND REPORTER
CLEVELAND
                            ELIZABETH T. RYAN
                            ASSISTANT ATTORNEY GENERAL
                            NASHVILLE
                        
Judge:HOLDER

First Paragraph:

We granted an appeal in this case to determine whether the values of
service rendered by different individuals may be aggregated under the
theft of services statute, Tenn. Code Ann. S 39-14-104.  In State v.
Byrd, ___ S.W.2d ___ (Tenn. 1998), we held simultaneous possession of
stolen property belonging to different owners may be considered as one
offense and the value of the property may be aggregated for purposes
of establishing the grade of offense under the theft of property
statute.  Our holding in Byrd, however, was limited to theft by the
exercise of control over another's property and did not apply to theft
of services.  We hold that the value of services taken from separate
individuals cannot be aggregated under the theft of services statute.

URL:http://www.tba.org/tba_files/TSC/cattonej_opn.WP6
Opinion-Flash

STATE OF TENNESSEE, EX REL. ROBERT  
J. EARHART, ET AL.
vs.
CITY OF BRISTOL, TENNESSEE

CourtTSC

Attorneys: For Plaintiffs-Appellants:   For Defendant-Appellee:

David H. Hornik                         Jack W. Hyder, Jr.  
Nashville                               Massengill, Caldwell, and
                                        Hyder, P.C.
David L. Buuck                          Bristol
Knoxville
                                        Amicus Curiae:

                                        Tennessee Municipal 
                                        Attorneys' Association
                                        Debra C. Poplin
                                        Knoxville   

                         
Judge:REID

First Paragraph:

The issues presented had their origin in two annexation ordinances
adopted by the City of Bristol in 1989.  The ordinances undertook to
annex the right-of-way of Highway 11E extending approximately four
miles south from the city limits of Bristol into  the Piney Flats
area.  The area included no property other than the highway
right-of-way.

URL:http://www.tba.org/tba_files/TSC/earhartr_opn.WP6
Opinion-Flash

STATE OF TENNESSEE
vs.
MARIO A. LAVENDER and,          
ERIC L. HOBBS

CourtTSC

Attorneys:

FOR THE APPELLANTS                  FOR APPELLEE:
Attorney for Mario A. Lavender      John Knox Walkup
Deanna Bell Johnson                 Attorney General & Reporter
Nashville, Tennessee
                                    Michael E. Moore
Attorneys for Eric L. Hobbs         Solicitor General
Jeffrey A. DeVasher 
Assistant Public Defender           Marvin E. Clements, Jr.
Nashville, Tennessee                Assistant Attorney General
(Appeal Only)                       450 James Robertson Pkwy.
                                    Nashville, Tennessee
Joan A. Lawson
Assistant Public Defender           Victor S. Johnson, III
Nashville, Tennessee                District Attorney General
(Trial Only)                        
                                    Nicholas D. Bailey
                                    Charles Carpenter   
                                    Asst District Attorneys General                             
                                    Nashville, Tennessee                
                          
Judge:DROWOTA

First Paragraph:

The defendants, Mario A. Lavender and Eric Hobbs, each were convicted
on two counts of robbery and one count of theft.  With respect to
Lavender, the trial judge imposed consecutive sentences of six years
on each robbery conviction, and four years on the theft conviction,
for an effective sentence of sixteen years.  With respect to Hobbs,
the trial judge imposed consecutive sentences of ten years on each
robbery conviction, and four years on the theft conviction, for an
effective sentence of twenty-four years.  The Court of Criminal
Appeals affirmed the trial court's judgment.

URL:http://www.tba.org/tba_files/TSC/hobbse_opn.WP6
Opinion-Flash

PAM OGREN
vs.
HOUSECALL HEALTH CARE, INC.                     

CourtTSC - Workers Comp Panel

Attorneys: 

For the Appellant:                  For the Appellee:

Linda J. Hamilton Mowles, Esq.      Conrad Finnell
Lewis, King, Krieg, Waldrop         P.O. Box 1476
 & Catron, P.C.                     Cleveland, TN  37364-1476
One Centre Square, Fifth Floor
620 Market Street
P.O. Box 2425
Knoxville, TN  37901
                         
Judge:BYERS

First Paragraph:

The trial judge found the plaintiff had sustained a 70 percent
permanent vocational impairment as a result of an on-the-job injury.

URL:http://www.tba.org/tba_files/TSC_WCP/ogren_wc.WP6
Opinion-Flash

BENJAMIN K. REED
vs.
MUELLER COMPANY         

CourtTSC - Workers Comp Panel

Attorneys:

For the Appellant:                  For the Appellee:

Charles J. Gearhiser                Joseph C. Wilson III
Wade K. Cannon                      Sixth Floor, Pioneer Bank Bldg.
320 McCallie Avenue                 801 Broad Street
Chattanooga, Tenn.  37402           P.O. Box 1749   
                                    Chattanooga, Tenn.  37401-1749
                          
Judge:THAYER

First Paragraph:

The employee, Benjamin K. Reed, has appealed from a ruling of the
trial court dismissing his claim for benefits as a result of an
accident while working for defendant, Mueller Company.  The trial
court found the employee had failed to establish that his back injury
was caused by the accident at work on July 26, 1994.  Since the case
was dismissed, there was no ruling on the employer's defenses of lack
of proper notice and the expiration of the one year statute of
limitations.

URL:http://www.tba.org/tba_files/TSC_WCP/reedben_wc.WP6
Opinion-Flash

SUPREME COURT OF TENNESSEE
STATE LIST FOR PERMISSION TO APPEAL

April 27, 1998                      

CourtTSC - Rules
                     
URL:http://www.tba.org/tba_files/TSC_RULES/statelst27_wpd.WP6
Opinion-Flash

JOHN D. BICKFORD
vs.
CHRISTI MARIA BICKFORD

CourtTCA

Attorneys: 

Jerry Scott
John L. Kea, II
Scott & Kea
100 E. Vine St.
P. O. Box 1216
Murfreesboro, TN 37133-1216
ATTORNEYS FOR THE APPELLANT

William Kennerly Burger
301 North Spring St.
P. O. Box 1969
Murfreesboro, TN 37133-1969
ATTORNEY FOR THE APPELLEE
                         
Judge:INMAN

First Paragraph:

The sole issue on appeal in this domestic relations case is whether
the trial court's determination of the value of a coin collection is
contrary to the preponderance of the evidence.  A reasoned resolution
of this issue is made difficult by virtue of the fact that the trial
court doubted the credibility of both principals.

URL:http://www.tba.org/tba_files/TCA/bickford_ca1.WP6
Opinion-Flash

BARBARA BRANUM
vs.
CORRINE W. AKINS and           
MELVIN L. AKINS

CourtTCA

Attorneys: 

For Appellant                   For Appellee Corrine W. Akins

JOHN C. CAVETT, JR.             R. DEE HOBBS
Cavett & Abbott, PLLC           Bell, Turner & Hobbs
Chattanooga, Tennessee          Chattanooga, Tennessee

                                For Appellee Melvin L. Akins

                                ROBERT G. NORRED, JR.
                                Spears, Moore, Rebman &
                                Williams
                                Chattanooga, Tennessee
                         
Judge:Susano

First Paragraph:

In this case, we are called upon to determine whether a trustee's past
conduct conformed to her fiduciary duty.

URL:http://www.tba.org/tba_files/TCA/branumb_opn.WP6
Opinion-Flash

JO ANN DUCKETT
vs.
FOX FIRE APARTMENTS;
FOX FIRE APARTMENTS 1; 
FOX FIRE APARTMENTS 2;
AGS JACKSON ASSOCIATES, L.P.,
AGS PROPERTIES; OLD HICKORY 
PROPERTIES, L.P.; RESOURCE CAPITAL
GROUP, INC.; OLD HICKTORY
APARTMENTS - PHASE II; GENCO
PROPERTIES; OLD HICKORY 
PROPERTIES; MORRIS CROCKER;
LYNDA CROCKER, and HUNTER
MANAGEMENT COMPANY, 

CourtTCA

Attorneys:

Jerald M. Campbell, Jr.; L. L. Harrell, Jr.
of Trenton for Appellant

D. Scott Turner; Thomas F. Preston
of Memphis for Appellees
                          
Judge:CRAWFORD

First Paragraph:

In this slip and fall case, Plaintiff/Appellant Jo Ann Duckett
(Duckett) filed suit against defendants, AGS Partners, MLP, L.P.,
Resource Capital Group, Inc. and Hunter Management Group for personal
injury damages.  Duckett appeals the trial court's order granting
defendants' motion for summary judgment.

URL:http://www.tba.org/tba_files/TCA/duckettj_opn.WP6
Opinion-Flash

RAYMOND O. HAMPTON
vs.
TENNESSEE TRUCK SALES, INC.

CourtTCA

Attorneys: 

G. Kline Preston, IV
Washington Square Two
222 2nd Avenue North
Suite 416
Nashville, TN 37201
ATTORNEY FOR PLAINTIFF/APPELLANT

Gerald C. Wigger
W. Carl Spining
ORTALE, KELLEY, HERBERT & CRAWFORD, LLP
200 Fourth Avenue North
Third Floor
P. O. Box 198985
Nashville, TN 37219-8985
ATTORNEYS FOR DEFENDANT/APPELLEE
                         
Judge:INMAN

First Paragraph:

Appellant purchased a used truck from seller [appellee] then filed a
complaint against appellee, along with the manufacturers of
refurbished parts, alleging that a subsequent $7,330.00 repair bill
was occasioned by their breach of express and implied warranties on
the truck.  The parties entered into an agreed order which stipulated
that the seller and manufacturers would share the cost of repairs and
deliver the truck to appellant in good condition.  Appellant took
possession of the truck but seven months later filed this  Rule 60.02
motion to set aside the agreed order.

URL:http://www.tba.org/tba_files/TCA/hampton_ca1.WP6
Opinion-Flash

ELIZABETH HENDRIX
vs.
NORA ELIZABETH McGILL

CourtTCA

Attorneys: 

George H. Cate, Jr.
95 White Bridge Road
Suite 503, Cavalier Building
Nashville, TN 37205
ATTORNEY-AD-LITEM- FOR RESPONDENT/APPELLANT

William Kennerly Burger
SunTrust Bank Building, Suite 306
201 E. Main Street, P. O. Box 1969
Nashville, TN 37133-1969
ATTORNEY FOR PETITIONER/APPELLEE
                         
Judge:INMAN

First Paragraph:

The trial court found the respondent in need of a conservator and
appointed Guardianships and Trusts, Inc. as conservator of her person
and her estate.

URL:http://www.tba.org/tba_files/TCA/hendrix_ca1.WP6
Opinion-Flash

MYONG S. HUANG
vs.
JIMMY SHIN HUANG
vs.
MYONG NAN GATES

CourtTCA

Attorneys:

William B. Bruce
Bruce, Weathers, Corley, Dughman & Lyle
315 Deaderick Street, Suite 2075
Nashville, TN 37238-2075
ATTORNEY FOR DEFENDANT/APPELLANT

Mary Arline Evans
Philip W. Duer
Stanley A. Davis
214 Third Avenue North
Nashville, TN 37201
ATTORNEYS FOR PLAINTIFF/APPELLEE
AND FOR INTERVENOR/APPELLEE                          

Judge:INMAN

First Paragraph:

In this divorce action the trial court found that Husband and Wife
were both guilty of inappropriate marital conduct and granted each a
divorce from the other pursuant to T.C.A. S 36-4-129.  Custody of the
parties' minor child, age three, was granted to Wife, who was awarded
rehabilitative alimony of $500.00 per month for sixty months and
alimony in solido of $500.00 per month which was to terminate when the
note encumbering the Wife's van, in the approximate amount of
$12,000.00, was paid in full.  In a separate order on an intervening
petition, the trial court entered judgment against Husband and in
favor of Intervenor Myong Nan Gates on a Promissory Note.

URL:http://www.tba.org/tba_files/TCA/huang_ca1.WP6
Opinion-Flash

JOHANNA JARRETT
vs.
TERRY B. STARKEY

CourtTCA

Attorneys: 

For Appellant                   For Appellee

JOHANNA JARRETT, Pro Se         NO APPEARANCE
Chattanooga, Tennessee
                         
Judge:Susano

First Paragraph:

In this paternity action, the petitioner, Johanna Jarrett ("Mother"),
the natural mother of Ethan Oliver Starkey (DOB: November 21, 1989),
appealed the trial court's order denying her request that the child's
putative father, Terry B. Starkey ("Father"), be ordered to pay her
attorney's fees, and that he be further ordered to obtain health
insurance for the parties' minor child.

URL:http://www.tba.org/tba_files/TCA/jarrettj_opn.WP6
Opinion-Flash

RICHARD L. NORTHCOTT
vs.
TENNESSEE DEPARTMENT OF                         
CORRECTION, ET AL.

CourtTCA

Attorneys:

RICHARD L. NORTHCOTT, #93811
Turney Center
Route One
Only, Tennessee 37140-9709
    Pro Se/Petitioner/Appellant

JOHN KNOX WALKUP
Attorney General and Reporter

JOHN R. MILES
Assistant Attorney General
425 5th Avenue North
Nashville, Tennessee 37243-0488
    Attorney for Respondent/Appellee
                          
Judge:CANTRELL

First Paragraph:

An inmate in the custody of the Department of Correction filed a
declaratory judgment action which alleged that the Department had
failed to award him sentence reduction credits to which he was
entitled.  The Department did not respond in the allotted time, and
the trial court granted the inmate a default judgment. The Department
subsequently filed a motion to set aside the default, coupled with a
motion for a summary judgment against the inmate.  The trial court
granted both motions.  We affirm the trial court's action in setting
aside the default, but we reverse the summary judgment.

URL:http://www.tba.org/tba_files/TCA/northrl_opn.WP6
Opinion-Flash

VICKIE GALE PRITCHETT
vs.
DENNIS DAY PRITCHETT

CourtTCA

Attorneys:

For Appellant                   For Appellee

THOMAS R. BANDY, III            NAT H. THOMAS
Kingsport, Tennessee            Kingsport, Tennessee
                          
Judge:Susano

First Paragraph:

In this divorce case, the defendant, Dennis Day Pritchett ("Father"),
appealed.  He raises issues pertaining to custody, child support, and
visitation.

URL:http://www.tba.org/tba_files/TCA/pritchvg_opn.WP6
Opinion-Flash

BARRY SAWYER
vs.
FIRST TENNESSEE BANK,               
DYERSBURG, TENNESSEE and        
SECURITY BANK

CourtTCA

Attorneys: 

For the Plaintiff/Appellant:        For the Defendants/Appellees:

Charles M. Agee, Jr.                W. Stanworth Harris       
Dyersburg, Tennessee                Jackson, Tennessee   
                         
Judge:LILLARD

First Paragraph:

This is a premises liability case.  The plaintiff was injured when he
encountered a drop-off between the parking lot of two banks.  The
defendant banks filed a motion for summary judgment, arguing that the
drop-off was open and obvious.  The trial court granted the summary
judgment motion, from which the plaintiff appeals.  We reverse.

URL:http://www.tba.org/tba_files/TCA/sawyerb_opn.WP6
Opinion-Flash

RAYMOND WARREN SWOFFARD
vs.
JUANITA S. DEL PINO-McCLARTY

CourtTCA

Attorneys: 

For Appellant                   For Appellee

MITCHELL A. BYRD                PAMELA R. O'DWYER
Chattanooga, Tennessee          Paty, Rymer & Ulin, P.C.
                                Chattanooga, Tennessee
                         
Judge:Susano

First Paragraph:

This appeal was taken from orders entered following two post-divorce
hearings.  The parties were divorced in 1985.  The current round of
litigation began on October 8, 1996, when Juanita S. Del
Pino-McClarty, the former Mrs. Swoffard, filed a petition for contempt
and for modification of the parties' 1985 divorce judgment.  Mr.
Swoffard responded with his own counterclaim for relief.  The trial
court granted partial relief to both of the parties.  Ms. McClarty
appealed, arguing (1) that the trial court erred in setting child
support; (2) that the trial court erred in awarding Mr. Swoffard a
money judgment for his overpayment of federal income taxes caused by
Ms. McClarty's failure to sign the necessary tax forms to give him the
tax exemptions for the parties' two children; (3) that the court erred
in allowing Mr. Swoffard to testify as to the amount of his
overpayment of federal income taxes; and (4) that the trial court
erred in offsetting Mr. Swoffard's child support arrearage to Ms.
McClarty against the amount she owed him for his overpayment of
federal income taxes.

URL:http://www.tba.org/tba_files/TCA/swffrdrw_opn.WP6
Opinion-Flash

MELVIN VAUGHN and wife      
MAJORIE VAUGHN
vs.
STEPHEN R. KING and wife        
SHIRLEY A. KING

CourtTCA

Attorneys: 

For Plaintiffs/Appellees:           For Defendants/Appellants:

Frank M. Fly                        Phillip M. George
N. Andy Myrick, Jr.                 Smyrna, Tennessee
Murfreesboro, Tennessee
                         
Judge:KOCH

First Paragraph:

This appeal involves a dispute concerning the payment of the
consideration for the conveyance of residential property in Smyrna. 
After the purchasers ceased making the agreed upon payments, the
sellers filed suit in the Circuit Court for Rutherford County seeking
to recover the unpaid balance of the purchase price.  The purchasers
attempted to avoid liability by asserting that the statute of frauds
barred the sellers' claim.  The trial court denied the purchasers'
motion for summary judgment, and a jury awarded the sellers a $42,864
judgment.  We have determined that the trial court correctly
determined that the statute of frauds did not bar the sellers' action
and, therefore, affirm the judgment.

URL:http://www.tba.org/tba_files/TCA/vaughnm_opn.WP6
Opinion-Flash

JIMMY H. VAUGHN
vs.
MARY RUNYON VAUGHN

CourtTCA

Attorneys:

Larry Roberts
627 Second Avenue South
Nashville, TN 37210
ATTORNEY FOR PLAINTIFF/APPELLANT

Thomas F. Bloom
500 Church Street, 5th Floor
Nashville, TN 37219
ATTORNEY FOR DEFENDANT/APPELLEE
                          
Judge:INMAN

First Paragraph:

The trial court found that there had been a change of circumstances
and increased Jimmy Hunter Vaughn's [husband's] alimony obligation to
Mary Runyon Vaughn [wife] from $400.00 per month to $600.00 per month.
 The court also found that husband should pay $350.00 as reasonable
attorney fees to wife's attorney.

URL:http://www.tba.org/tba_files/TCA/vaughn_ca1.WP6
Opinion-Flash

JIMMY EISOM
vs.
STATE OF TENNESSEE

CourtTCCA

Attorneys:

For Appellant:                  For Appellee:

William D. Massey               John Knox Walkup
3074 East Street                Attorney General & Reporter
Memphis, TN  38128
                                Deborah A. Tullis
John E. Herbison                Assistant Attorney General
2016 Eighth Avenue, South       450 James Robertson Parkway
Nashville, TN  37204            Nashville, TN  37243-0493
                        
                                C. Phillip Bivens       
                                District Attorney General
                                P.O. Drawer E
                                Dyersburg, TN  38024
                                                  
Judge:WADE

First Paragraph:

The petitioner, Jimmy Eisom, appeals the trial court's denial of post
conviction relief.  He was convicted of second degree murder and
received a life sentence.  This court affirmed and the supreme court
denied review.  State v. Jimmy Eisom and Michael D. Williams, No. 5
(Tenn. Crim. App., at Jackson, Nov. 12, 1986), app. denied, (Tenn.,
Mar. 9, 1987).  In 1989, the petitioner filed his first petition for
post-conviction relief alleging ineffective assistance of counsel. 
The trial court denied relief.  This court affirmed.  Michael Williams
and Jimmy Eisom v. State, No. 02C01-9107-CC-00154 (Tenn. Crim. App.,
at Jackson, June 3, 1992).

URL:http://www.tba.org/tba_files/TCCA/eisomj_opn.WP6
Opinion-Flash

DANIEL J. HARMON
vs.
STATE OF TENNESSEE

CourtTCCA
           
Judge:WOODALL

First Paragraph:

This matter is before the Court upon the state's motion requesting
that the judgment in the above-styled cause be affirmed pursuant to
Rule 20, Tennessee Court of Criminal Appeals Rules.  Finding that the
trial court properly denied post-conviction relief, we grant the
state's motion to affirm the judgment pursuant to Rule 20.

URL:http://www.tba.org/tba_files/TCCA/harmond1_ord.WP6
Opinion-Flash

STATE OF TENNESSEE
vs.
THOMAS J. McKEE

CourtTCCA

Attorneys:

FOR THE APPELLANT                   FOR THE APPELLEE 

Mark E. Stephens                    Charles W. Burson
Sixth District Public Defender      Attorney General & Reporter

R. Scott Carpenter                  Robin L. Harris
Assistant Public Defender           Assistant Attorney General
1209 Euclid Avenue                  450 James Robertson Parkway
Knoxville, TN 37921                 Nashville, TN 37243-0493
                          
Judge:BYERS

First Paragraph:

This appeal involves a dispute concerning the payment of the
consideration for the conveyance of residential property in Smyrna. 
After the purchasers ceased making the agreed upon payments, the
sellers filed suit in the Circuit Court for Rutherford County seeking
to recover the unpaid balance of the purchase price.  The purchasers
attempted to avoid liability by asserting that the statute of frauds
barred the sellers' claim.  The trial court denied the purchasers'
motion for summary judgment, and a jury awarded the sellers a $42,864
judgment.  We have determined that the trial court correctly
determined that the statute of frauds did not bar the sellers' action
and, therefore, affirm the judgment.

URL:http://www.tba.org/tba_files/TCCA/mckeetj_opn.WP6
Opinion-Flash

STATE OF TENNESSEE
vs.
RANDAL A. THIES

CourtTCCA

Attorneys: 

FOR THE APPELLANT:          FOR THE APPELLEE:
J. THOMAS CALDWELL          JOHN KNOX WALKUP
Attorney at Law             Attorney General & Reporter
144 Jefferson St.
Ripley, TN  38063           ELIZABETH T. RYAN
                            Assistant Attorney General                          
                            450 James Robertson Parkway                         
                            Nashville, TN 37243-0493

                            ELIZABETH T. RICE
                            Dist. Attorney General
                                   
                            WALT FREELAND
                            Asst. Dist. Attorney General
                            302 Market St.
                            Somerville, TN  38068
                         

Judge:WITT

First Paragraph:

The defendant, Randal A. Thies, appeals the length and manner of
sentencing imposed upon him as a result of his convictions of third
offense driving under the influence, driving while license suspended,
canceled or revoked, vehicular homicide and reckless endangerment. 
Thies is presently incarcerated, serving his effective four and
one-half year sentence consecutively to a previous 11 month, 29 day
sentence upon which his probation was revoked as a result of the
instant crimes.   His sentence was imposed following a jury trial in
the Tipton County Circuit Court.

URL:http://www.tba.org/tba_files/TCCA/thiesra_opn.WP6
Opinion-Flash

STATE OF TENNESSEE
vs.
IVORY THOMAS

CourtTCCA

Attorneys:

FOR THE APPELLANT:              FOR THE APPELLEE:

A C WHARTON, JR.                JOHN KNOX WALKUP
Public Defender                 Attorney General & Reporter

TONY N. BRAYTON                 JANIS L. TURNER
Asst. Public Defender           Counsel for the State
201 Poplar, Suite 201           425 Fifth Ave., North
Memphis, TN 38103               Cordell Hull Bldg., Second Fl.                              
                                Nashville, TN  37243-0493
                
                                JOHN W. PIEROTTI
                                District Attorney General

                                CHARLES BELL
                                Asst. District Attorney General
                                201 Poplar, Suite 301
                                Memphis, TN 38103                          

Judge:PEAY

First Paragraph:

The defendant was indicted in August 1995 on one count of especially
aggravated robbery.  A jury found him guilty of the charged offense
and the trial court sentenced him as a Range I standard offender to
twenty-five years.  In this appeal as of right, the defendant argues
that the trial court erred in allowing testimony explaining the
absence of a State witness.  He further argues that his sentence is
excessive.  After a review of the record and applicable law, we affirm
the defendant's conviction but modify his sentence to seventeen years.

URL:http://www.tba.org/tba_files/TCCA/thomasi_opn.WP6
Opinion-Flash

CARL WOMAC
vs.
STATE OF TENNESSEE

CourtTCCA

Attorneys:

FOR THE APPELLANT:              FOR THE APPELLEE:


CHARLES M. CORN                 JOHN KNOX WALKUP    
District Public Defender        Attorney General & Reporter         
RICHARD HUGHES, JR.             GEORGIA BLYTHE FELNER 
Assistant Public Defender       Assistant Attorney General  
P.O. Box 1453                   Cordell Hull Bldg., 2nd Floor
Cleveland, TN 37364             425 Fifth Avenue North
                                Nashville, TN 37243-0493
                                                                                                        
                                JERRY N. ESTES
                                District Attorney General

                                SANDRA DONAGHY
                                Asst District Attorney General
                                P.O. Box 1351
                                Cleveland, TN 37364                         
                              
Judge:CLARK

First Paragraph:

The defendant appeals as of right his conviction for driving under the
influence of an intoxicant, second offense.  He raises a single issue
- that the evidence is insufficient to support the jury's verdict of
guilty on the underlying charge.  We affirm the judgment of the trial
court.

URL:http://www.tba.org/tba_files/TCCA/womacc_opn.WP6

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