July 6, 2000 Volume 6 -- Number 106 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):   02 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 01 New Opinion(s) from the Tennessee Court of Appeals 06 New Opinion(s) from the Tennessee Court of Criminal Appeals 00 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 STATE OF TENNESSEE v. JOHN ADAMS and RITA ADAMS CORRECTION Court:TSC Attorneys: Robert C. Brooks, Memphis, Tennessee, for the appellant John Adams; Walker Gwinn, Memphis, Tennessee, for the appellant, Rita Adams. Paul G. Summers, Attorney General and Reporter; Michael C. Moore, Solicitor General; Peter Coughlan, Assistant Attorney General, Nashville, Tennessee, for the appellee, State of Tennessee. Judge: BARKER First Paragraph: We granted this appeal to decide whether a jury must unanimously agree as to the particular serious bodily injury used to support a conviction for aggravated child abuse through neglect. The trial court held that aggravated child abuse through neglect is a single, continuing course of conduct, and that the State was not required, therefore, to make an election of offenses. On direct appeal, the Court of Criminal Appeals affirmed the appellants' conviction and sentence for aggravated child abuse through neglect, and the appellants requested permission to appeal to this Court. After careful analysis of the statute proscribing aggravated child abuse through neglect and a review of other relevant statutory and case authority, we hold that because aggravated child abuse through neglect is a continuing offense, no election is required. The judgment of the Court of Criminal Appeals upholding the appellants' convictions and sentences is affirmed. http://www.tba.org/tba_files/TSC/adamsj.wpd STATE OF TENNESSEE v. FRANKLIN HOWARD Court:TSC Attorneys: James V. Ball and Joseph S. Ozment, Memphis, Tennessee, for the appellant, Franklin Howard. Michael E. Moore, Solicitor General, and Peter M. Coughlan, Assistant Attorney General, Nashville, Tennessee, for the appellee, State of Tennessee. Judge: BARKER First Paragraph: This is an appeal from the Criminal Court for Shelby County which convicted the defendant of premeditated first degree murder, especially aggravated robbery and conspiracy to commit aggravated robbery. The defendant filed a motion for a new trial and argued that the evidence was insufficient to sustain a conviction for premeditated murder. The court overruled the motion, and the defendant appealed. The Court of Criminal Appeals concluded that the evidence was insufficient to sustain a finding that the defendant was the principal actor in causing the death of the victim. http://www.tba.org/tba_files/TSC/Howard.wpd RICHARD NORMAN REDMAN v. DONNA KAY REDMAN WITH CONCURRING OPINION Court:TCA Attorneys: Clark Lee Shaw, Nashville, for the Appellant, Richard Norman Redman. Perry P. Paine, Jr., Maryville, for the Appellee, Donna Kay Redman. Judge: SWINEY First Paragraph: A divorce decree was filed in 1993 with the marital assets being divided by agreement of these parties. The decree awarded Husband's military retirement benefits to Wife "as a division of marital property." The decree also provided that inasmuch as Wife was to receive that pension, she should be responsible for the support of the parties' two minor children. In 1999, after the children reached majority, Husband filed this "Petition to Discontinue Child Support and Modify Final Judgment by Restoring Retirement Benefits." The Trial Court held that the divorce decree ordered Husband to pay Wife his military pension as a division of marital property, not child support, and therefore declined to modify the original decree. We affirm the judgment of the Trial Court. http://www.tba.org/tba_files/TCA/RedmanRN_opn.wpd CONCURRING OPINION http://www.tba.org/tba_files/TCA/RedmanRN_con.wpd STATE OF TENNESSEE v. KENNETH R. GRIFFIN Court:TCCA Attorneys: Clifford K. McGown, Jr. (on appeal), Waverly, Tennessee, James T. Bowman (at trial) and Scott Pratt (at trial), Johnson City, Tennessee, and Collins Landstreet (at trial), Elizabethton, Tennessee, for the appellant, Kenneth R. Griffin. Paul G. Summers, Attorney General and Reporter, Eric W. Dabb, Assistant Attorney General, and Joe Crumley and Michael Laguradia, Assistant District Attorneys General, for the appellee, State of Tennessee. Judge: WADE First Paragraph: The defendant, who was convicted of first degree murder and especially aggravated robbery, challenges the sufficiency of the evidence for his first degree murder conviction and also challenges both of his sentences. The convictions and sentences are affirmed. http://www.tba.org/tba_files/TCCA/Griffin.wpd STATE OF TENNESSEE v. WILLIAM MACK GROSS Court:TCCA Attorneys: Lloyd A. Levitt, Chattanooga, Tennessee, for the appellant, William Mack Gross. Paul G. Summers, Attorney General and Reporter, Elizabeth B. Marney, Assistant Attorney General, William H. Cox, III, District Attorney General, and Parke Masterson, Assistant District Attorney General, for the appellee, State of Tennessee. Judge: WOODALL First Paragraph: Defendant William Mack Gross pled guilty to violation of the habitual motor vehicle offender law, reserving the right to appeal a certified question of law pursuant to Rule 37, Tennessee Rules of Criminal Procedure. The precise issue reserved was whether the stop of his vehicle by a law enforcement officer, based upon a citizen's call to the police department of a "suspicious vehicle" violated his constitutional rights to be free from unreasonable searches and seizures. The trial court denied the motion to suppress. After review of the record, briefs of the parties, and hearing arguments of counsel, we reverse the judgment of the trial court and dismiss the indictment. http://www.tba.org/tba_files/TCCA/grosswm.wpd STATE OF TENNESSEE v. HENRY CHRISTOPHER JOHNSON Court:TCCA Attorneys: Ardena J. Garth, District Public Defender, Donna Robinson Miller, Assistant Public Defender, and Thomas E. Landis, Assistant Public Defender, Chattanooga, Tennessee, for the appellant, Henry Christopher Johnson. Paul G. Summers, Attorney General and Reporter, Clinton J. Morgan, Assistant Attorney General, William H. Cox, III, District Attorney General, and Rodney C. Strong, Assistant District Attorney General, for the appellee, State of Tennessee. Judge: WOODALL First Paragraph: Defendant Henry Christopher Johnson pled guilty to Class C felony robbery and he received an agreed sentence of six years as a Range I standard offender, with the manner of service to be determined by the trial court. Following a sentencing hearing, the trial court ordered Defendant to serve his sentence in the Tennessee Department of Correction. Defendant challenges the trial court's denial of alternative sentencing. The judgment of the trial court is affirmed. http://www.tba.org/tba_files/TCCA/johnsonhc.wpd THOMAS J. MCKEE v. STATE OF TENNESSEE WITH JUDGEMENT Court:TCCA Attorneys: Thomas J. McKee, Pro Se. Michael E. Moore, Solicitor General, R. Stephen Jobe, Assistant Attorney General, Nashville, Tennessee, Randall E. Nichols, District Attorney General, Knoxville, Tennessee, for the Appellee, State of Tennessee. Judge: WITT First Paragraph: The defendant appeals the trial court's dismissal of his petition for post-conviction relief. The trial court determined the petition was time-barred by Tennessee Code Annotated section 40-30- 202(a) (1997). Because the trial court erroneously determined that the one-year statute of limitations period began to run as of the conviction date of September 7, 1995, rather than when the Tennessee Supreme Court denied permission to appeal on December 28, 1998, we conclude that the post-conviction petition filed on December 9, 1999 was timely and reverse the judgment of the trial court. http://www.tba.org/tba_files/TCCA/MckeeT_Opn.wpd JUDGEMENT http://www.tba.org/tba_files/TCCA/MckeeT_Jdg.wpd STATE OF TENNESSEE v. LARRY JUNIOR MORGAN Court:TCCA Attorneys: Julie A. Rice, Knoxville, Tennessee, and George H. Waters, Maryville, Tennessee, for the appellant, Larry Junior Morgan. Paul G. Summers, Attorney General and Reporter, Peter M. Coughlan, Assistant Attorney General, Edward P. Bailey, Assistant District Attorney General, and Kirk Andrews, Assistant District Attorney General, for the appellee, State of Tennessee. Judge: OGLE First Paragraph: The appellant, Larry Junior Morgan, was convicted by a jury in the Blount County Circuit Court of sexual battery. On the same day, the appellant pled guilty to simple possession of marijuana. For the offense of sexual battery, the trial court sentenced the appellant as a Range I offender to two years incarceration in the Tennessee Department of Correction. The trial court then ordered the appellant to serve six months of his sentence in the Blount County Jail and suspended the remainder, placing the appellant on intensive probation. For the offense of simple possession of marijuana, the trial court sentenced the appellant to eleven months and twenty-nine days incarceration in the Blount County Jail. http://www.tba.org/tba_files/TCCA/morganlj.wpd STATE OF TENNESSEE v. RICKIE ALAN OSBORNE Court:TCCA Attorneys: Rickie A. Osborne, Tiptonville, Tennessee, pro se. Paul G. Summers, Attorney General and Reporter, Patricia C. Kussman, Assistant Attorney General, H. Greeley Wells, Jr., District Attorney General, and J. Lewis Combs, Assistant District Attorney General, for the appellee, State of Tennessee. Judge: WOODALL First Paragraph: In this case, Defendant, Rickie Alan Osborne, was indicted for first degree murder. Following a jury trial, he was convicted of voluntary manslaughter. He was sentenced to serve six (6) years in the Tennessee Department of Correction and the judgment was entered March 12, 1999. From the record, it appears that nothing else was filed in this case until August 19, 1999, when Defendant filed, pro se, a "Motion to Correct Illegal Sentence." The trial court treated the motion as a motion to reduce sentence pursuant to Rule 35, Tennessee Rules of Criminal Procedure, and dismissed it without an evidentiary hearing. From this action, Defendant has appealed. We affirm the judgment of the trial court. http://www.tba.org/tba_files/TCCA/osbornera.wpd 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! While Opinion Flash is a free service of the Tennessee Bar Association, you must be a subscriber to TBALink, the premier Web site for Tennessee attorneys, in order to access the full-text of the opinions or enjoy many other features of TBALink. TBA members may join TBALink for just $50 per year. To join, go to: http://www.tba.org/join.html/ SUBSCRIBE TO OPINION FLASH! Would you like to receive the TBALink Opinion Flash free each day by e-mail? Anyone, whether a TBA member or not, is welcome to subscribe ... it's free! For the Plain Text Version: 1) Send an e-mail message to: Opinion-Flash@tba.org 2) In the SUBJECT of the message type: SUBSCRIBE 3) Leave the body of the message blank For the HTML Text Version: 1) Send an e-mail message to: Opinion-Flash@tba.org 2) In the SUBJECT of the message type: SUBSCRIBE HTML 3) Leave the body of the message blank UNSUBSCRIBE TO OPINION FLASH? ... SURELY NOT! To STOP receiving TBALink Opinion-Flash: 1) Send an e-mail message to: Opinion-Flash@tba.org 2) In the SUBJECT of the message type: UNSUBSCRIBE 3) Leave the body of the message blank © Copyright 2000 Tennessee Bar Association