March 9 , 2001 Volume 7 -- Number 044 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):   00 New Opinion(s) from the Tennessee Supreme Court 03 New Opinion(s) from the Tennessee Supreme Court Workers' Compensation Panel 00 New Document(s) or Proposed Rule(s) from the Tennessee Supreme Court 00 New Opinion(s) from the Tennessee Court of Appeals 05 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 EGYPTIAN LACQUERS MANUFACTURING COMPANY, and RELIANCE INSURANCE COMPANY. v. MEGAN LEE RAINEY, a Minor, by Next Friend and Natural Mother, PAMELA KAY DEAL, and TIFFANY SHATRELL RAINEY, a Minor, By Next Friend and Natural Mother, CYNTHIA DIANE HUMPHREYS MURPHY. Court:TSC - Workers Comp Panel Attorneys: Jay R. Slobey, Nashville, Tennessee, for the Appellant Tiffany Shatrell Rainey, Minor, by Next Friend and Natural Mother, Cynthia Diane Humphreys Murphy. Phillip R. Newman, Franklin, Tennessee, for the Appellee Megan Lee Rainey. Gerald C. Wigger, Nashville, Tennessee, for the Appellee Egyptian Lacquer Manufacturing Company and Reliance Insurance Company. Judge: PEOPLES First Paragraph: This workers' compensation appeal has been referred to the Special Workers' Compensation Appeals Panel of the Supreme Court in accordance with Tennessee Code Annotated S 50-6-225(e)(3) for hearing and reporting of findings of fact and conclusions of law. The trial court found the deceased worker had two dependent children entitled to receive workers' compensation death benefits. The issue is whether the presumption of dependency was rebutted for the older child. We affirm the trial court. http://www.tba.org/tba_files/TSC_WCP/egyptianlacquersopn.wpd JAMES R. HYDE v. ALL AMERICAN HOMES, LLC. Court:TSC - Workers Comp Panel Attorneys: J. Frank Thomas and Hal W. Wilkins, Leitner, Williams, Dooley & Napolitan, Nashville, Tennessee, for the appellant, All American Homes, LLC. William L. Underhill, Madison, Tennessee, for the appellee, James R. Hyde. Judge: PEOPLES First Paragraph: This workers' compensation appeal has been referred to the Special Workers' Compensation Appeals Panel of the Supreme Court in accordance with Tennessee Code Annotated S 50-6- 225(e)(3) for hearing and reporting of findings of fact and conclusions of law. The trial court awarded the employee thirty-five percent disability to both arms and ordered the award to be paid in a lump sum. The employer contends the award is excessive and the lump sum is not in the employee's best interest. We affirm. http://www.tba.org/tba_files/TSC_WCP/hydejamesopn.wpd ANGELA McCOIN v. LUMBERMENS MUTUAL CASUALTY COMPANY and WILSON SPORTING GOODS, INC. Court:TSC - Workers Comp Panel Attorneys: Margaret Moore, Gideon & Wiseman, Nashville, Tennessee, for the appellant, Lumbermens Mutual Casualty Company and Wilson Sporting Goods, Inc. Larry D. Wilks, Springfield, Tennessee, for the appellee, Angela McCoin. Judge: PEOPLES First Paragraph: This workers' compensation appeal has been referred to the Special Workers' Compensation Appeals Panel of the Supreme Court in accordance with Tennessee Code Annotated S 50-6-225(e)(3) for hearing and reporting of findings of fact and conclusions of law. The employer appeals the trial court award of thirty-five percent disability to the arm, and the award of temporary total disability and temporary partial disability benefits after the employee had returned to work for another employer. We affirm. http://www.tba.org/tba_files/TSC_WCP/mccoinangelaopn.wpd STATE OF TENNESSEE v. HAROLD M. BAYUK Court:TCCA Attorneys: Gary M. Howell, Columbia, Tennessee, for the Appellant, Harold M. Bayuk. Paul G. Summers, Attorney General and Reporter, Michael Moore, Solicitor General, Elizabeth B. Marney, Assistant Attorney General, and Lee Dryer, Assistant District Attorney General, for the Appellee, State of Tennessee. Judge: HAYES First Paragraph: The Appellant, Harold M. Bayuk, was convicted by a Hickman County Circuit Court jury of one count of driving under the influence of an intoxicant and one count of driving on a revoked license. Following his conviction for DUI, the Appellant waived his right to jury sentencing and agreed to submit the issue of enhanced punishment to the trial court. The trial court found the Appellant guilty of DUI, third offense, and sentenced him to eleven months twenty-nine days, with 150 days to be served in confinement. On appeal, the Appellant argues that the trial court erred in sentencing him to serve 150 days instead of the statutory minimum of 120 days. After review, we affirm the judgment of the trial court in part, vacate in part, and remand this case to the trial court for entry of an amended judgment of conviction. http://www.tba.org/tba_files/TCCA/bayukhm.wpd STATE OF TENNESSEE v. BRAD STEPHEN LUCKETT Court:TCCA Attorneys: V. Michael Fox, Nashville, Tennessee, for the appellant, Brad Stephen Luckett. Paul G. Summers, Attorney General and Reporter; Jennifer L. Smith, Assistant Attorney General; William C. Whitesell, Jr., District Attorney General, and William A. Osborne, Assistant District Attorney General, for the appellee, State of Tennessee. Judge: WELLES First Paragraph: The Defendant was convicted by a jury of driving under the influence of an intoxicant, second offense. In this direct appeal, the Defendant contends that the trial court erred by admitting the results of his breath-alcohol test. The Defendant argues that the State failed to prove that he was continuously observed for twenty minutes prior to taking the test, and that one of the requirements for the admissibility of the test results was therefore not satisfied. We affirm the judgment of the trial court. http://www.tba.org/tba_files/TCCA/luckettbs.wpd STATE OF TENNESSEE v. JOEY L. SALCIDO Court:TCCA Attorneys: John E. Herbison, Nashville, Tennessee (on appeal) and Claudia Jack, District Public Defender; and Robert H. Stovall, Jr., Assistant Public Defender, (at trial) for the appellant, Joey L. Salcido. Paul G. Summers, Attorney General and Reporter; David H. Findley, Assistant Attorney General; Mike Bottoms, District Attorney General; Richard Dunavant, Assistant District Attorney; and Robert C. Sanders, Assistant District Attorney General, for the appellee, State of Tennessee. Judge: WOODALL First Paragraph: Defendant Joey L. Salcido was indicted by the Giles County Grand Jury for three counts of incest and three counts of rape of a child. Following a jury trial, Defendant was convicted of three counts of aggravated sexual battery as a lesser-included offense of child rape and acquitted of the charges of incest. On March 15, 1999, the trial court sentenced Defendant as a violent 100% offender to a term of twelve years for each of his three convictions and ordered that all sentences be served consecutively. On April 15, 1999, thirty-one days after Defendant's judgment was entered, Defendant filed an untimely motion for new trial. The motion was nevertheless heard on April 19, 1999 and denied on April 20, 1999. On April 23, 1999, Defendant filed a notice of appeal which was also untimely due to the late filing of Defendant's motion for new trial. On May 25, 2000, Defendant filed a motion to waive the timely filing of his notice to appeal and on June 7, 2000, this Court granted Defendant's motion. In this appeal Defendant raises the following issues: (1) whether the Defendant's conviction of aggravated sexual battery, an offense which was neither charged in the indictment nor a lesser-included offense of the offenses charged, was error; (2) whether, assuming aggravated sexual battery is determined to be a lesser-included offense of child rape, the trial court erred in its jury instruction regarding the mental state necessary to convict him; (3) whether the trial court erred when it admitted certain evidence over Defendant's objections; (4) whether the cumulative effect of the trial court's errors renders the trial fundamentally unfair so as to offend Defendant's due process guarantees; and (5) whether the trial court erred when it imposed consecutive sentences. Defendant asserts that his first issue concerns subject matter jurisdiction and, therefore, must be heard by this Court pursuant to Tenn. R. App. P. 13(b). Defendant also urges this Court to exercise its discretion under Tenn. R. Crim. P. 52(b) or Tenn. R. App. P. 13(b) and consider the remaining four issues. After a thorough review of the record and applicable law, we find no errors requiring reversal and affirm the judgment of the trial court. http://www.tba.org/tba_files/TCCA/salcidojl.wpd STATE OF TENNESSEE v. SRIRASACK SRISAVATH Court:TCCA Attorneys: Charles C. Morrow, Nashville, Tennessee, for the appellant, Srirasack Srisavath. Paul G. Summers, Attorney General and Reporter; David H. Findley, Assistant Attorney General; and Mary Katherine Harvey, Assistant District Attorney General, for the appellee, State of Tennessee. Judge: WADE First Paragraph: The defendant, Srirasack Srisavath, was convicted of possession of marijuana with intent to sell. The trial court imposed a sentence of one and one-half years and assessed a fine of $2,000.00. In this appeal of right, the defendant challenges the propriety for the investigatory stop which led to the discovery of the marijuana. Because the stop was not adequately supported by articulable facts, the trial court erred by overruling the motion to suppress evidence. The judgment is, therefore, reversed and the cause dismissed. http://www.tba.org/tba_files/TCCA/srisavaths.wpd STATE OF TENNESSEE v. CHARLES E. SWAFFER Court:TCCA Attorneys: Lisa Stinett, Lafayette, Tennessee; later substituted by Thomas H. Bilbrey, Assistant Public Defender, for the appellant, Charles E. Swaffer. Paul G. Summers, Attorney General and Reporter; David H. Findley, Assistant Attorney General; Tom P. Thompson, Jr., District Attorney General; Guy Yelton, Assistant District Attorney General, for the appellee, State of Tennessee. Judge: WOODALL First Paragraph: Defendant Charles E. Swaffer was convicted by a Macon County jury of one count of Class C theft of property over $10,000 and one count of Class D vandalism over $1,000. The trial court subsequently imposed concurrent sentences of five years and three years, with Defendant to serve one year of incarceration followed by supervised probation. Defendant challenges his convictions, raising the following issues: (1) whether the trial court erred when it failed to grant a motion for a mistrial; (2) whether the evidence was sufficient to support his convictions; and (3) whether the trial court erred in applying improper enhancing factors and rejecting his mitigating factors. The judgment of the trial court is affirmed. http://www.tba.org/tba_files/TCCA/swafferce.wpd.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 2001 Tennessee Bar Association