July 19, 1999 Volume 5 -- Number 100 What follows is the case style or name, first paragraph, author's name, and the names of attorneys for the parties of each opinion released eletronically today to TBALink from Tennessee's three appellate courts. This Issue (IN THIS ORDER):   04 New Opinion(s) from the Tennessee Supreme Court 00 New Opinion(s) from the Tennessee Supreme Court Workers' Compensation Panel 00 New Document(s) or Proposed Rule(s) from the Tennessee Supreme Court 15 New Opinion(s) from the Tennessee Court of Appeals 13 New Opinion(s) from the Tennessee Court of Criminal Appeals 01 New Judicial Ethics Opinion(s) 00 New Formal Ethics Opinion(s) from the Board of Professional Responsibility   There are three ways for TBALink members to get the full-text versions of these opinions from the Web: Do a key word search in the Search Link area of TBALink.This option will allow you to view and save a plain text version of the opinion. *NEW* Browse the Opinion List area of TBALink. This option will allow you to download the original WordPerfect 6.0 version of the opinion. Click the URL at end of each Opinion paragraph below. This option will allow you to download the original WordPerfect 6.0 document. Lucian T. Pera Editor-in-Chief, TBALink   STATE OF TENNESSEE VS. JERRY WAYNE EDISON Court:TSC Attorneys: For Appellant: For Appellee: LU ANN BALLEW JOHN KNOX WALKUP Assistant Public Defender Attorney General and Reporter Dandridge, TN MICHAEL E. MOORE Solicitor General MICHAEL J. FAHEY, II Assistant Attorney General Nashville, TN AL C. SCHMUTZER, JR. District Attorney General JAMES L. GASS Assistant District Attorney General Sevierville, TN Judge:BIRCH First Paragraph: We granted this Tenn. R. App. P. 11 appeal to determine the appropriate standard of review of a trial court's decision to admit a breath-alcohol test result under State v. Sensing, 843 S.W.2d 412 (Tenn. 1992). The Court of Criminal Appeals held that the trial court had not abused its discretion in admitting the test result of the defendant, Jerry Wayne Edison. We affirm the judgment of the intermediate appellate court and conclude that a trial court's Sensing decision must be presumed correct on appeal unless the preponderance of the evidence is to the contrary. http://www.tba.org/tba_files/TSC/Edisonj_opn.WP6 STATE OF TENNESSEE VS. JAMES R. LEMACKS Court:TSC Attorneys: For the Appellant: For the Appellee: John Knox Walkup J.P. Bradley Attorney General & Reporter Waverly, Tennessee Michael E. Moore Solicitor General Daryl J. Brand Senior Counsel Assistant Attorney General Nashville, Tennessee Judge:BARKER First Paragraph: We granted this appeal by the State of Tennessee to address the issue of jury unanimity in cases where the State relies on alternative theories of guilt to convict an accused under a single count indictment. In this case, the appellee, James Lemacks, was charged with driving under the influence of an intoxicant (DUI). The trial court instructed the jury that it could convict the appellee of DUI based upon evidence that he operated his automobile while intoxicated or that he was criminally responsible for allowing his friend, Clinton Sanchez, to drive the automobile while intoxicated. The jury returned a general verdict convicting the appellee of DUI. http://www.tba.org/tba_files/TSC/Lemckjrl_opn.WP6 HELEN MCILVAIN VS. RUSSELL STOVER CANDIES, INC. and ITT HARTFORD Court:TSC Attorneys: For the Appellant: For the Appellee: William E. Halfacre, III Donald G. Dickerson MADEWELL, JARED & HALFACRE Cookeville, Tennessee Cookeville, Tennessee Judge:ANDERSON First Paragraph: We granted the motion to review this workers' compensation case to determine two issues: 1) whether the evidence preponderates against the trial court's award of 40 percent permanent partial disability to each arm; and, 2) whether the age-based classification contained in Tenn. Code Ann. S 50-6-207(4)(A)(i) (1991 & Supp. 1998) applies to injured workers over age 60 who suffer injuries to scheduled members. http://www.tba.org/tba_files/TSC/Mcilvain_opn.WP6 JAMES N. RAMSEY, District Attorney General, Seventh Judicial District VS. TOWN OF OLIVER SPRINGS, A Municipal Corporation under the Law of Tennessee, et al. Court:TSC Attorneys: For Appellants: For Appellee: James M. Webster John Knox Walkup Oak Ridge, Tennessee Attorney General & Reporter Michael E. Moore Solicitor General Gordon W. Smith Associate Solicitor General Nashville, Tennessee Judge:ANDERSON First Paragraph: We granted this appeal to determine whether the City Court for the Town of Oliver Springs, which sits in Roane County, Tennessee, may properly adjudicate a criminal case in which the offense was committed in Anderson County. http://www.tba.org/tba_files/TSC/Ramseyjn_opn.WP6 WANDA FAY WILSON BARKER VS. JAMES ROYCE BARKER Court:TCA Attorneys: For the Appellant: Marianna Williams Ashley, Ashley & Arnold 322 Church Avenue P. O. Box H Dyersburg, TN 38025-2008 For the Appellee: Damon E. Campbell Conley, Campbell, Moss & Smith 317 South Third Street P. O. Box 427 Union City, TN 38281 Judge:INMAN First Paragraph: Following thirty-five years of marriage, these parties separated, retired, and divorced. Certain accumulated assets of an agreed value of four million dollars were, by stipulation, divided equally, with each receiving rental properties, promissory notes, certificates of deposit, retirement accounts, and a host of other items of real and personal property, of the aggregated value of two million dollars. http://www.tba.org/tba_files/TCA/barker-w_ca2.WP6 CITY OF JACKSON VS. JEFF BUTLER Court:TCA Attorneys: JEFFREY BUTLER, pro se Jackson, Tennessee Attorney for Appellant C. MARK DONAHOE SPRAGINS, BARNETT, COBB & BUTLER, PLC Jackson, Tennessee Attorney for Appellee Judge:HIGHERS First Paragraph: Jeffrey Butler ("Butler" or "Appellant") appeals from the trial court's order finding that Butler was in violation of the health and sanitation code of the City of Jackson ("City" or "Appellee"). http://www.tba.org/tba_files/TCA/butlerje_opn.WP6 MIKE DANIEL and DENNY KNIGHT VS. FLETCHER RIDGE, INC. Court:TCA Attorneys: JORDAN S. KELLER LASSITER, TIDWELL & HILDEBRAND, PLLC 213 Fifth Avenue, North Nashville, Tennessee 37219 Attorney for Plaintiffs/Appellants SCOTT K. HAYNES LUTHER WRIGHT, JR. BOULT, CUMMINGS, CONNERS & BERRY, PLC 414 Union Street, Suite 1600 Nashville, Tennessee 37219 Attorneys for Defendant/Appellee Judge:CANTRELL First Paragraph: The issues in this appeal are (1) whether the defendant preserved its motion for a directed verdict by renewing it at the close of all the proof, and (2) whether the court erred in granting a directed verdict in accordance with Rule 50.02, Tenn. R. Civ. Proc. We find that the defendant did preserve its motion and that there was no proof offered on which to base a verdict for the plaintiff. Therefore, we affirm. http://www.tba.org/tba_files/TCA/Danielm_opn.WP6 BRENT DIXON, d/b/a CHAPARRAL'S STEAK HOUSE VS. LAWRENCEBURG BEER BOARD and THE CITY OF LAWRENCEBURG Court:TCA Attorneys: JOE W. HENRY, JR. DEBORAH R. SOWELL HENRY, HENRY & SPEER, P.C. 119 South First Street P. O. Box 458 Pulaski, Tennessee 38478 Attorneys for Plaintiff/Appellee ALAN C. BETZ 22 Public Square P. O. Box 488 Lawrenceburg, Tennessee 38464 Attorney for Defendant/Appellant Judge:CANTRELL First Paragraph: The Chancery Court of Lawrence County held that Lawrenceburg's beer ordinance was arbitrary because it limited the holders of licenses to sell beer to those named in the ordinance. We affirm. http://www.tba.org/tba_files/TCA/Dixonb_opn.WP6 GREGORY GEIGER VS. DAWN GEIGER BOYLE Court:TCA Attorneys: For the Plaintiff/Appellant: For the Defendant/Appellee: Christine Zellar Church Mart G. Fendley Clarksville, Tennessee Clarksville, Tennessee Judge:KOCH First Paragraph: This appeal presents a custody and visitation dispute arising from a failed joint custody arrangement. The mother filed her third petition for sole custody of the parties' only child five years after the Chancery Court for Montgomery County approved a martial dissolution agreement establishing joint custody with the father having primary physical custody. Following a bench trial, the trial court awarded the mother sole custody of the child and made provisions for the father's child support and visitation. The father asserts on this appeal that the evidence does not support the trial court's decision. Based on our independent review of the record, we cannot say that the judgment lacks an adequate evidentiary foundation. Accordingly, we affirm the judgment granting sole custody to the mother. http://www.tba.org/tba_files/TCA/Geigerg_opn.WP6 WILLIAM CRAIG HALL, CAROLYN CARRINGTON CRUMP, LOURA THOMAS, GRACE JAMISON, and MARIE SAMMONS VS. DON SHAW, Defendant/Appellant and COLLIERVILLE AUCTION COMPANY R. WILLIAM (BILL SKINNER, MRS. BRYAN COOP, JAMES LOONEY, B. J. DUNAVANT, Administrator Pendente Lite of the Estate of JAMES GLENN, CECILIA WALLRAVEN, MRS. EARL SEWARD, MARGARET SADLER, NORMA COULTER NEWMAN, and HAROLD COHN VS. DON SHAW Court:TCA Attorneys: For the Appellant: For the Appellant: For the Appellees: Jeff Germany Joel Porter Stephen Beem 200 Jefferson, #725 130 North Court 100 North Main, Ste 3201 Memphis, TN 38103 Memphis, TN 38103 Memphis, TN, 38103 Judge:INMAN First Paragraph: The Collierville Auction Company (CAC) was issued a corporate Charter in 1947. Acting through its ten incorporators, we deduce, as a de facto Board of Directors it issued 207 shares of stock, each of the par value of $100.00, acquired eight acres of land, constructed buildings, and promptly commenced its corporate purpose of livestock auctioning. http://www.tba.org/tba_files/TCA/hall_ca2.WP6 AARON DANIEL HARPER and wife, AMY ELIZABETH HARPER, surviving natural parents of CHRISTOPHER DANIEL HARPER, deceased VS. J.D. ELLIOTT and wife, ANITA R. ELLIOTT Court:TCA Attorneys: RICHARD H. BATSON II 329 Union Street P. O. Box 198725 Nashville, Tennessee 37219-8725 Attorney for Plaintiffs/Appellants DAVID S. ZINN Suite 102 2000 Glen Echo road Nashville, Tennessee 37215-2857 Attorney for Defendants/Appellees Judge:CANTRELL First Paragraph: The plaintiffs' four-year-old son wandered onto the defendants' property and drowned in their backyard pool. The plaintiffs charged the defendants with maintaining an attractive nuisance and in failing to take reasonable steps to prevent forseeable harm to trespassing children. The Circuit Court of Davidson County granted summary judgment to the defendants. We affirm. http://www.tba.org/tba_files/TCA/Harperad_opn.WP6 H.J.L., L.P. VS. NASHVILLE & EASTERN RAILROAD CORPORATION AND NASHVILLE AND EASTERN RAILROAD AUTHORITY Court:TCA Attorneys: DAVID B. HERBERT ORTALE, KELLEY, HERBERT & CRAWFORD Third floor, Noel Place 200 fourth Avenue North P.O. Box 198985 Nashville, Tennessee 37219-8985 Attorney for Plaintiff-Appellant DAVID W. LAWRENCE and R. DAVID ALLEN 108 North Greenwood Street Lebanon, Tennessee 37087 Attorneys for Defendant-Appellee Nashville & Eastern Railroad Corporation WILLIAM E. FARMER 104 W. Main Street, P.O. Box 2429 Lebanon, Tennessee 37088-2429 Attorney for Defendant-Appellee Nashville and Eastern Railroad Authority Judge:FRANKS First Paragraph: In this action, plaintiff sought the continuing use of a railroad underpass. The Chancellor granted defendants summary judgment, and plaintiff has appealed. Plaintiff H.J.L., L.P., is a limited partnership created by the Eakes family. The Eakes own a farm used for breeding walking horses. In 1980, the Eakes purchased approximately eighteen acres from Donald O'Guinn. They purchased an adjoining fourteen acres from Mark Parrish in 1982. These tracts were deeded to H.J.L. in 1993. http://www.tba.org/tba_files/TCA/Hjllp_opn.WP6 WILEY HUTCHERSON, WESTERN TENNESSEE ENTERPRISES, INC., and LANDFILL, INC. VS. ROZELL CRINER, LAUDERDALE COUNTY EXECUTIVE, and the LAUDERDALE COUNTY COMMISSION Court:TCA Attorneys: Jerry D. Kizer, Jr., William C. Bell, Jr.; Rainey, Kizer, Butler, Reviere & Bell, P.L.C. of Jackson For Appellants J. Thomas Caldwell of Ripley Kemper B. Durand, Michael E. Keeney; Thomason, Hendrix, Harvey, Johnson & Mitchell of Memphis For Appellees Judge:CRAWFORD First Paragraph: Plaintiffs-Appellants, Wiley Hutcherson, Western Tennessee Enterprises, Inc., and Landfill, Inc., appeal the final decree of the trial court dismissing the complaint for declaratory judgment and injunctive relief against Defendants-Appellees, Rozelle Criner, Lauderdale County Executive, and the Lauderdale County Commission. http://www.tba.org/tba_files/TCA/hutcherw_opn.WP6 INTEGON INDEMNITY CORPORATION VS. SANDRA FLANAGAN and SHON FLANAGAN Court:TCA Attorneys: Michael D. Herrin, LESS, GETZ & LIPMAN, Memphis, Tennessee Attorney for Plaintiff/Appellant. Jeffrey Jones, Memphis, Tennessee Attorney for Defendants/Appellees. Judge:FARMER First Paragraph: Plaintiff Integon Indemnity Corporation appeals the trial court's judgment which dismissed Integon's complaint for declaratory relief and which ruled that Defendants/Appellees Sandra and Shon Flanagan were insured persons under the uninsured motorist provisions of the automobile liability insurance policy issued by Integon to the Flanagans. We vacate the trial court's judgment based upon our conclusion that the court erred in failing to conduct a trial to determine the dispositive issue in this case. http://www.tba.org/tba_files/TCA/integon_opn.WP6 DORIS LAWSON and DARRELL LAWSON VS. NASHVILLE CITY CENTER LIMITED PARTNERSHIP, and THE METROPOLITAN GOVERNMENT OF NASHVILLE, DAVIDSON COUNTY, TENNESSEE Court:TCA Attorneys: STANLEY A. DAVIS 214 Third Avenue, North Nashville, Tennessee 37201 Attorney for Plaintiffs/Appellants WILLIAM B. JAKES, III 300 James Robertson Parkway Nashville, Tennessee 37201-1107 Attorney for Defendant/Appellee Nashville City Center Limited Partnership JAMES L. MURPHY, III Director of Law The Department of Law of the Metropolitan Government of Nashville and Davidson County PAUL D. KRIVACKA Metropolitan Attorney 204 Metropolitan Courthouse Nashville, Tennessee 37201 Attorney for Defendant/Appellee Metropolitan Government of Nashville and Davidson County Judge:CANTRELL First Paragraph: The plaintiff slipped and fell on a grate located partially on a city sidewalk and partially on the adjoining property. She sued the Metropolitan Government of Nashville and Davidson County and the owner of the adjoining property, alleging that they were negligent in failing to correct a dangerous condition. The Circuit Court of Davidson County granted summary judgment to both defendants. We affirm. http://www.tba.org/tba_files/TCA/Lawsond_opn.WP6 CAROLYN GAIL MALLARD VS. JAMES DOSS MALLARD Court:TCA Attorneys: Ann Turner Moore Jackson, Tennessee Attorney for Defendant/Appellant Langdon S. Unger, Jr. Martin, Tennessee Judge:LILLARD First Paragraph: This matter appears appropriate for consideration pursuant to Rule 10(b) of the Rules of the Court of Appeals of Tennessee. This is a divorce action involving an award of alimony. The trial court awarded $250 per month alimony in futuro to the wife. The husband appeals. We affirm. http://www.tba.org/tba_files/TCA/mallardc_opn.WP6 STATE OF TENNESSEE DEPARTMENT OF CHILDREN'S SERVICES VS. REBECCA PHILLIPS Court:TCA Attorneys: KATHLEEN G. MORRIS P.O. Box 128091 Nashville, Tennessee 37212 Attorney for Defendant PAUL G. SUMMERS, Attorney General and Reporter and DOUGLAS EARL DIMOND, Assistant Attorney General, General Civil Division Cordell Hull Building, 2nd Floor 425 Fifth Avenue North Nashville, Tennessee 37243-0699 Attorney for Plaintiff Judge:FRANKS First Paragraph: On petition of the Department of Childrens Services, the Trial Court terminated the parental rights of Rebecca Ruth Phillips for her three minor children, Kelly Louis Gooch, Lula May Gooch, and Lori Ann Phillips. The mother has appealed. http://www.tba.org/tba_files/TCA/Stoftnvp_opn.WP6 HARRY LEE WARD VS. DONAL CAMPBELL Court:TCA Attorneys: HARRY LEE WARD, Pro Se TCIP, Route 1 Only, Tennessee 37140 PAUL G. SUMMERS Attorney General & Reporter MICHAEL E. MOORE Solicitor General STEPHANIE R. REEVERS Civil Rights and Claims Division 425 Fifth Avenue North Second Floor, Cordell Hull Building Nashville, Tennessee 37243-0488 ATTORNEYS FOR APPELLEE Judge:CAIN First Paragraph: This case involves a constitutional challenge to the application of a certain policy of the Tennessee Department of Correction ("the Department"). The petitioner, an inmate in the Department, filed this declaratory action asking the court to declare unconstitutional one of the Department's disciplinary policies, Policy 502.02, as it applied to him. This policy, which was enacted after the petitioner was initially sentenced, provides for an extension of the date of an inmate's parole eligibility as a punishment for the inmate's commission of a disciplinary offense while in prison. The trial court granted a rule 12 motion dismissing the petitioner's action for its failure to state a claim upon which relief could be granted. We affirm the trial court's decision. http://www.tba.org/tba_files/TCA/Wardhl_opn.WP6 RUSSELL WELLINGTON VS. ROBERT S. LEDFORD, DAVID ELAM, RICHARD MERCHANT, JASON BROOKS, CPL. SCOTT, SANDRA HALL, WARDEN RICKY J. BELL Court:TCA Attorneys: RUSSELL WELLINGTON, #122766 R.M.S.I. #1-B-209 7475 Cockrill Bend Industrial Road Nashville, Tennessee 37209-1010 Pro Se/Plaintiff/Appellant PAUL G. SUMMERS Attorney General and Reporter PAMELA S. LORCH Assistant Attorney General 425 Fifth Avenue North Nashville, Tennessee 37243-0488 Attorney for Appellees Ledford, Elam, Merchant, Brooks, Scott and Bell WILLIAM BARRY WOOD 326 Washington Square Building 222 Second Avenue, North Nashville, Tennessee 37201 Attorney for Appellee Hall Judge:CANTRELL First Paragraph: A prisoner in the custody of the Department of Correction claimed that five prison guards brutally assaulted him while he was shackled in full restraints. He also claimed that another guard and the warden responded to the alleged assault in a negligent way. The trial court dismissed the claims against all the defendants, stating among other things that they possessed absolute immunity for their actions. We affirm the dismissal of the warden, and of the guard who allegedly failed to provide timely medical help, but we reverse as to the five remaining defendants. http://www.tba.org/tba_files/TCA/Wellingr_opn.WP6 STATE OF TENNESSEE VS. JOHNNY LYNN CRUSE Court:TCCA Attorneys: FOR THE APPELLANT: FOR THE APPELLEE: J. Michael Ivey Paul G. Summers 36 Tennessee Avenue South Attorney General & Reporter P. O. Box 127 Parsons, TN 38363 Georgia Blythe Felner Assistant Attorney General 425 Fifth Avenue North Nashville, TN 37243-0493 G. Robert Radford District Attorney General 111 Church Street P. O. Box 686 Huntingdon, TN 38344-0686 Jerry W. Wallace Assistant District Attorney General P. O. Box 637 Parsons, TN 38363-0637 Judge:LAFFERTY First Paragraph: The appellant, Johnny Lynn Cruse, appeals as of right from the judgment of the Decatur County Circuit Court imposing a sentence of twenty-five years following his guilty plea to murder second degree. The appellant submits one appellate issue: whether the trial court erred in imposing the maximum sentence of twenty-five years as a Range I, violent offender. http://www.tba.org/tba_files/TCCA/crusejl_opn.WP6 STATE OF TENNESSEE VS. MICHAEL ALLEN HATCHEL Court:TCCA Attorneys: FOR THE APPELLANT: FOR THE APPELLEE: James H. Bradberry Paul G. Summers P. O. Box 789 Attorney General & Reporter Dresden, TN 38225 Patricia C. Kussmann Assistant Attorney General 425 Fifth Avenue North Nashville, TN 37243-0493 G. Gus Radford District Attorney General Eleanor Cahill Assistant District Attorney General 111 Church Street P. O. Box 686 Huntingdon, TN 38344-0686 Judge:LAFFERTY First Paragraph: The appellant, Michael Allen Hatchel, herein referred to as "the defendant," appeals as of right from the judgment of the Carroll County Circuit Court revoking his probation. He presents one appellate issue: whether the trial court abused its discretion in revoking the defendant's probation within one month of the defendant completing his original term. http://www.tba.org/tba_files/TCCA/hatchelm_opn.WP6 STATE OF TENNESSEE VS. TARRAN KYLES Court:TCCA Attorneys: For the Appellant: For the Appellee: J. Colin Morris Paul G. Summers 112 W. Baltimore, Ste. 202 Attorney General of Tennessee Jackson, TN 38301 and J. Ross Dyer Assistant Attorney General of Tennessee 450 James Robertson Parkway Nashville, TN 37243-0493 James G. (Jerry Woodall District Attorney General and James W. Thompson Assistant District Attorney General 225 Martin Luther King Dr., P.O. Box 2825 Jackson, TN 38302-2825 Judge:TIPTON First Paragraph: The defendant, Tarran Kyles, appeals as of right from his convictions by a jury in the Madison County Circuit Court for felony murder and especially aggravated robbery, a Class A felony. He was sentenced to life without parole for the felony murder and as a Range II, multiple offender to thirty-five years for the especially aggravated robbery. The trial court ordered the sentences to be served consecutively in the custody of the Department of Correction. The defendant essentially raises the sufficiency of the evidence as his only issue. He argues that Roy Easley, who testified against him, was an accomplice and that Mr. Easley's testimony was neither credible nor corroborated. We affirm the judgments of conviction. http://www.tba.org/tba_files/TCCA/kylest_opn.WP6 STATE OF TENNESSEE VS. MERRIAN LOGAN Court:TCCA Attorneys: FOR THE APPELLANT: FOR THE APPELLEE: CLIFFORD K. McGOWN, JR. PAUL G. SUMMERS 113 North Court Square Attorney General & Reporter P. O. Box 26 Waverly, TN 37185 PETER M. COUGHLAN (On Appeal Assistant Attorney General 425 Fifth Avenue North G. STEPHEN DAVIS Cordell Hull Building, 2nd Floor District Public Defender Nashville, TN 37243-0493 208 North Mill Avenue P. O. Box 742 C. PHILLIP BIVENS Dyersburg, TN 38025-0742 District Attorney General (At Trial and Of Counsel P. O. Drawer E on Appeal Dyersburg, TN 38025-0220 Judge:LAFFERTY First Paragraph: The appellant, Merrian Logan, referred herein as the "defendant," appeals as of right pursuant to Rule 3 of the Tennessee Rules of Appellate Procedure from a judgment of the Lake County Circuit Court. Upon her plea of guilty to introduction of drugs into a penal institution, a Class C felony, the trial court imposed a sentence of three years in the Department of Correction, suspended to six months with the balance to be served on supervised probation. The defendant presents one appellate issue: whether the trial court erred in requiring her to serve six months in the Lake County Jail before being placed on probation. http://www.tba.org/tba_files/TCCA/loganm_opn.WP6 STATE OF TENNESSEE VS. RUSSELL LANE OVERBY Court:TCCA Attorneys: FOR THE APPELLANT: FOR THE APPELLEE: GUY WILKINSON PAUL G. SUMMERS District Public Defender Attorney General & Reporter RICHARD W. DeBERRY R. STEPHEN JOBE Asst. District Public Defender Asst. Attorney General 117 Forrest Ave., North Cordell Hull Bldg., 2nd Fl. Camden, TN 38320 425 Fifth Ave., North (On Appeal Nashville, TN 37243-0493 JAMES BROCKMAN ROBERT RADFORD P.O. Box 25 District Attorney General Parsons, TN 38363 (At Trial JOHN OVERTON Asst. District Attorney General P.O. Box 484 Savannah, TN 38372 Judge:PEAY First Paragraph: The defendant was found guilty by a jury of rape and sentenced to a term of twelve years to be served in the Tennessee Department of Correction. The defendant's subsequent motion for a new trial was denied by the trial court. The defendant now appeals and presents the following issues for our review: 1. Whether the evidence is sufficient to support the defendant's conviction for rape; 2. Whether the trial court properly applied enhancement factors in sentencing the defendant; 3. Whether the defendant "was denied the right to adequately defend himself, because trial counsel did not adequately question the defendant at trial"; 4. Whether the State prevented the defendant from completing his testimony at trial; and 5. Whether the trial court erred in admitting hearsay testimony from Jennifer Nelson, a witness for the State. http://www.tba.org/tba_files/TCCA/overbyrl_opn.WP6 RALPH DEAN PURKEY VS. JAMES A. BOWLEN, WARDEN, and THE TENNESSEE DEPARTMENT OF CORRECTION Court:TCCA Attorneys: For Appellant: For Appellees: Ralph Dean Purkey, pro se John Knox Walkup No. 110256 Attorney General and Reporter STSRCF, Unit 6 Route 4, Box 600 Todd R. Kelley Pikeville, TN 37367 Assistant Attorney General 425 Fifth Avenue North Nashville, TN 37243-0493 James W. Pope, III Assistant District Attorney General District Attorney General's Office Twelfth Judicial District 265 Third Avenue, Suite 300 Dayton, TN 37321 Judge:WADE First Paragraph: The petitioner, Ralph Dean Purkey, appeals the trial court's denial of his petition for writ of habeas corpus. The single issue presented for our review is whether the petition was properly dismissed. We find no error and affirm the judgment of the trial court. http://www.tba.org/tba_files/TCCA/Purkeyrd_opn.WP6 STATE OF TENNESSEE VS. DOUGLAS McARTHUR RAIN Court:TCCA Attorneys: FOR THE APPELLANT: TERRY J. LEONARD 9 North Court Square P.O. Box 957 Camden, TN 38320 FOR THE APPELLEE: PAUL G. SUMMERS Attorney General and Reporter J. ROSS DYER Assistant Attorney General Cordell Hull Building, 2nd Floor 425 Fifth Avenue North Nashville, TN 37243-0493 G. ROBERT RADFORD District Attorney General BETH BOSWELL Assistant District Attorney General P.O. Box 686 Huntingdon, TN 38344-0686 Judge:RILEY First Paragraph: The defendant, Douglas McArthur Rains, pled guilty in Benton County to violating the Habitual Motor Vehicle Offender law ("HMVO", a Class E felony, and to driving under the influence ("DUI", third offense. The trial court sentenced defendant as a Range I standard offender to one year incarceration on the HMVO offense, and to eleven months, twenty-nine days on the DUI offense. The court ordered the sentences to run consecutively. In this appeal as of right, defendant contends that the trial court erred in denying him an alternative sentence and in ordering consecutive service of his sentences. Upon our review of the record, we AFFIRM the judgment below. http://www.tba.org/tba_files/TCCA/rainsdm_opn.WP6 STATE OF TENNESSEE VS. CHARLES SMITH Court:TCCA Attorneys: FOR THE APPELLANT: FOR THE APPELLEE: A.C. WHARTON PAUL G. SUMMERS Shelby County Public Defender Attorney General and Reporter W. MARK WARD R. STEPHEN JOBE Assistant Public Defender Assistant Attorney General Criminal Justice Complex, Ste 201 425 Fifth Avenue North 201 Poplar Avenue Nashville, TN 37243-0493 Memphis, TN 38103 WILLIAM L. GIBBONS District Attorney General AMY WEIRCH Asst District Attorney General Criminal Justice Complex, Suite 301 201 Poplar Avenue Memphis, TN 38103 Judge:WELLES First Paragraph: The Defendant, Charles Smith, was charged by criminal information with aggravated burglary. He pleaded guilty on April 8, 1998, with an agreed sentence of three years and one day. The agreement called for the trial judge to determine the manner of service of the sentence, and the Defendant requested that the trial court suspend his sentence or grant him judicial diversion. Following a hearing, the trial court denied the Defendant's request for judicial diversion, suspended his sentence, and placed him on probation for three years. The sole issue for our consideration on appeal is whether the trial court erred by denying his request for judicial diversion. We affirm the judgment of the trial court. http://www.tba.org/tba_files/TCCA/smithc_opn.WP6 STATE OF TENNESSEE VS. CHRISTIE THOMAS Court:TCCA Attorneys: FOR THE APPELLANT: FOR THE APPELLEE: A. C. WHARTON PAUL G. SUMMERS District Public Defender Attorney General & Reporter TONY M. BRAYTON R. STEPHEN JOBE Assistant Public Defender Assistant Attorney General Criminal Justice Center, Ste 201 2nd Floor, Cordell Hull Building 201 Poplar Avenue 425 Fifth Avenue North Memphis, TN 38103 Nashville, TN 37243 JOHN W. PIEROTTI District Attorney General JERRY KITCHEN Asst District Attorney General DAN BYER Asst District Attorney General Criminal Justice Center, Suite 301 201 Poplar Avenue Memphis, TN 38103 Judge:WOODALL First Paragraph: In this case, the Defendant, Christie Thomas, has appealed as of right from the trial court's decision declining to grant her request for judicial diversion pursuant to Tennessee Code Annotated section 40-35-313. Upon a plea of nolo contendere to the offense of misdemeanor assault, the Defendant was sentenced to serve sixty (60 days, which was suspended, and was placed on probation for eleven (11 months, twenty-nine (29 days. http://www.tba.org/tba_files/TCCA/thomasc_opn.WP6 STATE OF TENNESSEE VS. SCOTTY EUGENE WALKER Court:TCCA Attorneys: FOR THE APPELLANT: FOR THE APPELLEE: JEFFREY A. DeVASHER (on appeal) PAUL G. SUMMERS LAURA C. DYKES (at trial) Attorney General & Reporter JAMES HOLT WALKER (at trial) Asst. District Public Defenders ELIZABETH B. MARNEY 1202 Stahlman Bldg. Assistant Attorney General Nashville, TN 37201 425 Fifth Ave. N., 2d Floor Nashville, TN 37243-0493 VICTOR S. JOHNSON, III District Attorney General DIANE LANCE WILLIAM REED Asst. District Attorneys General 222 Second Ave. North, Ste. 500 Nashville, TN 37201-1649 Judge:WITT First Paragraph: The defendant, Scotty Eugene Walker, appeals from the conviction of aggravated child abuse he received at the conclusion of a jury trial in the Davidson County Criminal Court. He is presently serving a nineteen year sentence in the Department of Correction for this Class A felony. In this appeal, Walker raises several issues for our review: 1. Whether the trial court erred in denying Walker's motion to suppress his statements. 2. Whether the evidence is sufficient to support a finding of Walker's guilt beyond a reasonable doubt. 3. Whether the trial court properly admitted photographs of the victim depicting her injuries. 4. Whether the trial court properly denied Walker's request for a mistrial when an expert witness changed her opinion during the trial regarding aging of the victim's bruising. 5. Whether the trial court properly sentenced Walker. 6. Whether a new trial should have been granted based upon newly discovered evidence of the victim's and her twin's recurrent nightmares between 2:00 and 2:30 a.m. Having reviewed the record, the briefs of the parties, and the applicable law, we affirm the judgment of the trial court. http://www.tba.org/tba_files/TCCA/Walkerse_opn.WP6 STATE OF TENNESSEE VS. ROBERT WILKES Court:TCCA Attorneys: For the Appellant: For the Appellee: John H. Henderson John Knox Walkup District Public Defender Attorney General of Tennessee P.O. Box 68 and Franklin, TN 37065-0068 Lisa A. Naylor Assistant Attorney General of Tennessee 425 Fifth Avenue North Nashville, TN 37243-0493 Joseph D. Baugh, Jr. District Attorney General and Ronald L. Davis Assistant District Attorney General Williamson County Courthouse P.O. Box 937 Franklin, TN 37065-0937 Judge:TIPTON First Paragraph: The defendant, Robert Wilkes, appeals as of right from his convictions by a jury in the Hickman County Circuit Court of six counts of aggravated sexual battery, a Class B felony. For each of the six counts, the trial court sentenced the defendant to serve thirty years in the Department of Correction as a Range III, persistent offender. The trial court ordered the sentences to run consecutively to each other and to the defendant's current prison sentences. The trial court assessed a fine of twenty-five thousand dollars for each count for a total fine of one hundred fifty thousand dollars. http://www.tba.org/tba_files/TCCA/Wilksr_opn.WP6 STATE OF TENNESSEE VS. DELFRO WILLIS Court:TCCA Attorneys: FOR THE APPELLANT: MIKE MOSIER P.O. Box 1623 204 West Baltimore Jackson, TN 38302-1623 FOR THE APPELLEE: PAUL G. SUMMERS Attorney General and Reporter J. ROSS DYER Assistant Attorney General Cordell Hull Building, 2nd Floor 425 Fifth Avenue North Nashville, TN 37243-0493 JAMES G. (JERRY WOODALL District Attorney General SHAUN A. BROWN Assistant District Attorney General P.O. Box 2825 225 Martin Luther King Dr. Jackson, TN 38302-2825 Judge:RILEY First Paragraph: A Madison County jury convicted defendant of driving under the influence of an intoxicant. In this appeal as of right, defendant raises two issues for review: (1 whether there was sufficient evidence to convict him of driving under the influence; and (2 whether the trial court erred by failing to require the state to elect which count of the indictment to submit to the jury. We conclude the evidence was sufficient to support defendant's conviction, and that the trial court committed no reversible error in failing to require an election by the state. The judgment of the trial court is AFFIRMED. http://www.tba.org/tba_files/TCCA/willisd_opn.WP6 STATE OF TENNESSEE VS. LESLIE BRIAN WILLIS Court:TCCA JUDGMENT Judge:WITT First Paragraph: Came the defendant, Leslie Brian Willis, by counsel, and the state, by the Attorney General, and this cause was heard on the record on appeal from the Criminal Court of Robertson County; and upon consideration thereof, this court is of the opinion that there is reversible error in the judgment of the trial court. http://www.tba.org/tba_files/TCCA/Willislb_jdg.WP6 ADVISORY OPINION NO. 98-5 Chairperson:PEAY This Committee has been asked to render an opinion regarding the propriety of juvenile court judges and their employees supervising probation and other programs for juveniles whom they have placed on any type of probation. Included in this issue is the appointment and supervision of probation officers for juvenile court. http://www.tba.org/tba_files/TSC_Rules/98-5_opn.WP6 PLEASE FORWARD THIS EMAIL! Feel free to forward this Opinion Flash on to anyone you know of with an e-mail address. 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