June 20, 2000 Volume 6 -- Number 095 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. This Issue (IN THIS ORDER):   05 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 04 New Opinion(s) from the Tennessee Court of Appeals 00 New Opinion(s) from the Tennessee Court of Criminal Appeals 02 New Opinion(s) from the Tennessee Attorney General (PDF format) 00 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. Browse the Opinion List area of TBALink. This option will allow you to download the original version of the opinion. Click the URL at end of each Opinion paragraph below. This option will allow you to download the original document. Lucian T. Pera Editor-in-Chief, TBALink GEORGIA CROSS, et al. v. CITY OF MEMPHIS Court:TSC Attorneys: Michael F. Rafferty, Jonathan E. Scharff, and Brett A. Hughes, Memphis, Tennessee, for the appellant, City of Memphis. Cannon F. Allen, Brian S. Faughnan, and Mark S. Norris, Memphis, Tennessee, for the appellees, Georgia Cross, et al. Judge: BARKER First Paragraph: This is an appeal from the Circuit Court for Shelby County which, following a bench trial, allocated 100% fault to the City of Memphis for an accident in which Georgia Cross was injured. On appeal, the Court of Appeals applied a "clearly erroneous" standard of review and affirmed the judgment of the trial court. We granted the City's application for permission to appeal. We hold that, when reviewing a trial court's findings of fact, an appellate court must apply the de novo standard of review contained in Tennessee Rule of Appellate Procedure 13(d). http://www.tba.org/tba_files/TSC/Crossmemp.wpd STATE OF TENNESSEE. v. WARREN TYRONE FOWLER Court:TSC Attorneys: Edward C. Miller, Public Defender, Dandridge, Tennessee, for the appellant, Warren Tyrone Fowler. Paul G. Summers, Attorney General & Reporter and Michael E. Moore, Solicitor General and Gordon W. Smith, Associate Solicitor General and Ellen H. Pollack, Assistant Attorney General Nashville, Tennessee (On Appeal) and James L. Gass, Assistant District Attorney General, Dandridge, Tennessee (At Trial), for the appellee, State of Tennessee. Judge: ANDERSON First Paragraph: This is an appeal from the Circuit Court for Jefferson County which convicted the defendant of felony vandalism, two counts of aggravated assault, and felony evading arrest. The defendant appealed and argued that the trial court erred in failing to instruct the jury on facilitation of a felony as a lesser-included offense of criminal responsibility. The Court of Criminal Appeals held that because a defendant is criminally responsible for any offenses committed by codefendants in the pursuance of a criminal offense or as a natural and probable consequence thereof, facilitation is not a lesser-included offense as a matter of law. We hold that facilitation of a felony is a lesser-included offense but that an instruction was not warranted under the facts of this case. Accordingly, we affirm the judgments of the Court of Criminal Appeals and the trial court. http://www.tba.org/tba_files/TSC/FowlerWt.wpd STATE OF TENNESSEE v. DAVID L. OWENS Court:TSC Attorneys: Robert M. Brannon, Jr., Memphis, Tennessee, for the appellant, David L. Owens. Paul G. Summers, Attorney General and Reporter, Michael E. Moore, Solicitor General, and Erik W. Daab, Assistant Attorney General, for the appellee, State of Tennessee. Judge: BIRCH First Paragraph: David L. Owens, the defendant, entered a Dollar General Store, grabbed an article of clothing, and left without making payment. Owens was chased for several blocks by two store employees. When one employee closed in, Owens dropped the clothes, turned toward the employee, and brandished a box cutter. Owens then walked away, but he was subsequently apprehended and charged. He was convicted of robbery and sentenced to nine years in the Department of Correction. His conviction was affirmed by the Court of Criminal Appeals. In this Court, Owens contends that the robbery conviction is not, as a matter of law, sustainable under Tenn. Code Ann. S 39-13-401 because the violence occurred at the end of the chase--not at the time of the taking. http://www.tba.org/tba_files/TSC/owensd.wpd JOHN PAUL SEALS v. STATE OF TENNESSEE AND VIKKI LYNN FRITTS SPELLMAN v. STATE OF TENNESSEE Court:TSC Attorneys: Paul G. Summers, Attorney General & Reporter, and Michael E. Moore, Solicitor General, and Ellen H. Pollack, Assistant Attorney General, Peter M. Coughlan, Assistant Attorney General, Nashville, Tennessee, for the appellant, State of Tennessee. Marti L. Kaufman, Memphis, Tennessee, for the appellees, John Paul Seals and Vikki Lynn Fritts Spellman. Judge: ANDERSON First Paragraph: We granted review in this consolidated appeal to determine whether mental incompetency tolls the one-year statute of limitations for filing a post-conviction petition under either a savings provision or constitutional due process. The trial court dismissed the petitions for being time-barred. The Court of Criminal Appeals held that constitutional due process requires that the statute of limitations be tolled while a petitioner is mentally incompetent. We conclude that the statute of limitations is not tolled by a savings provision but may be tolled by due process concerns where a petitioner is denied a reasonable opportunity to raise a claim in a meaningful time and manner. We affirm the judgment of the Court of Criminal Appeals. http://www.tba.org/tba_files/TSC/Seals.wpd STATE OF TENNESSEE v. JOHNNY EDD WINFIELD Court:TSC Attorneys: Ardena J. Garth, District Public Defender, and Donna Robinson Miller, Assistant District Public Defender, Chattanooga, Tennessee, for the appellant, Johnny Edd Winfield. John Knox Walkup, Attorney General & Reporter and Michael E. Moore, Solicitor General and R. Stephen Jobe, Assistant Attorney General, Nashville, Tennessee (On Appeal), and William H. Cox, III, District Attorney General and C. Leland Davis, Assistant District Attorney, Chattanooga, Tennessee (At Trial), for the appellee, State of Tennessee. Judge: First Paragraph: This is an appeal from the Criminal Court for Hamilton County, which convicted the defendant of two counts of assault. The defendant appealed and argued that the trial court erred in imposing concurrent sentences of eleven months and twenty-nine days. The Court of Criminal Appeals concluded that two of the four sentencing enhancement factors applied by the trial court were improper but affirmed the sentencing after finding an enhancement factor that had not been applied by the trial court, i.e., that the defendant possessed or employed a deadly weapon during the offense. Tenn. Code Ann. S 40-35-114(9) (1997). The defendant appealed to this Court arguing that the Court of Criminal Appeals erred in imposing an enhancement factor based on facts underlying an offense, aggravated assault, of which the jury acquitted the defendant. We conclude that a court may apply an enhancement factor based on facts underlying an offense for which a defendant has been acquitted so long as the facts are established by a preponderance of the evidence. http://www.tba.org/tba_files/TSC/WinfieldJE.wpd CLARK MATTHEW EARLS v. SHIRLEY ANN EARLS Court:TCA Judge: KOCH First Paragraph: Shirley Ann Earls has filed a petition pursuant to Tenn. R. App. P. 39 requesting this court to reconsider portions of its May 31, 2000 opinion. Even though the petition raises issues that have already been carefully considered by each member of the court, the nature of the case prompts us to file this opinion elaborating on our initial opinion. http://www.tba.org/tba_files/TCA/Earlscm_reh.wpd CYNTHIA JANE HAMPTON-HOOVER v. WILLIAM HENRY HOOVER Court:TCA Attorneys: W. Allen Barrett, Nashville, Tennessee, for the appellant, Cynthia Jane Hampton-Hoover. D. Scott Parsley, Nashville, Tennessee, for the appellee, William Henry Hoover. Judge: CANTRELL First Paragraph: This is an appeal challenging the trial court's classification and distribution of property in a divorce proceeding. We affirm the trial court's judgment. http://www.tba.org/tba_files/TCA/hamptonhoover.wpd IN THE MATTER OF B.B. Court:TCA Attorneys: Jennifer Lynn Thompson, Nashville, Tennessee, for the appellant, Lisa Ann Mears. Paul G. Summers, Attorney General and Reporter, Douglas Earl Dimond, Assistant Attorney General, for the appellee, State of Tennessee, Department of Children's Services. Judge: COTTRELL First Paragraph: The trial court terminated the mother's parental rights to B.B. on the grounds that: (1) the child had been removed from the mother for more than six (6) months and the conditions which led to removal or other conditions which in all reasonable probability would cause the child to be subjected to further abuse or neglect still persisted; (2) the mother substantially failed to comply with the plan of care established by the Department of Children's Services; and (3) the mother was incompetent to adequately provide for the further care and supervision of the child. Because clear and convincing evidence supports the trial court's findings and its conclusion that termination was in the best interest of the child, we affirm. http://www.tba.org/tba_files/TCA/InReBB.wpd JEREMY FOSTER WILSON v. JENNIFER ELAINE PARIS WILSON (LADD) Court:TCA Attorneys: Timothy S. Priest, Winchester, Tennessee, for the appellant, Jennifer Elaine Paris Wilson (Ladd). Susan N. Marttala, Winchester, Tennessee, for the appellee, Jeremy Foster Wilson. Judge: CANTRELL First Paragraph: A divorce decree granted both parents joint custody of their young child. When the child reached school age, the mother and father were living in different towns, and they both filed petitions to be granted primary custody. The trial court granted primary custody to the father, with reasonable visitation for the mother. We affirm. http://www.tba.org/tba_files/TCA/wilsonjf.wpd Authority of the Tennessee Human Rights Commission Date: June 12, 2000 Opinion Number: 00-107 http://www.tba.org/tba_files/AG/OP107.pdf Jurisdiction of Gibson County General Sessions Court Date: June 12, 2000 Opinion Number: 00-108 http://www.tba.org/tba_files/AG/OP108.pdf PLEASE FORWARD THIS E-MAIL! Feel free to forward this Opinion Flash on to anyone you know of with an e-mail address. GET A FULL-TEXT COPY OF AN OPINION! See the intrsuctions at the beginning of this edition of Opinion Flash. JOIN TBALink! 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