July 27, 2001 Volume 7 — Number 137 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 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 20 New Opinion(s) from the Tennessee Court of Appeals 23 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. Howard H. Vogel Knoxville, Tennessee Editor-in-Chief, TBALink DWYANE ANDERSON v. DONAL CAMPBELL, et al. Court:TCA Attorneys: Dwayne Anderson, Nashville, TN, pro se Paul G. Summers, Attorney General and Reporter, Michael E. Moore, Solicitor General, Dawn Jordan, Assistant Attorney General, for Appellee D. Michael Dunavant, Ripley, TN, for Appellee, Gina Johnson Judge: HIGHERS First Paragraph: This is an appeal by an inmate in the custody of the Tennessee Department of Correction. The inmate alleges civil rights violations pursuant to 42 U.S.C. S 1983. The court below dismissed the case for failure to state a claim. For the following reasons, we affirm. http://www.tba.org/tba_files/TCA/andersondwayne.wpd DONNIE W. BURRESS, et al. v. SHELBY COUNTY, TENNESSEE, et al. Court:TCA Attorneys: Alan Bryant Chambers, Memphis, Tennessee, for the appellants, Donnie W. Burress and the Shelby County Deputy Sheriff's Association. Carroll C. Johnson, Memphis, Tennessee, for the appellees, Shelby County, Tennessee, Mayor James Rout, Jim Martin, Administrator of Personnel, and Jerry Kennedy, Administrator of the Risk Management Office. Judge: FARMER First Paragraph: This appeal arises from the trial court's dismissal of a complaint seeking compensation for the heart disease suffered by Officer. Officer worked for Department since 1981. In pre-hiring screening, Officer was determined to have hypertension. When he was diagnosed with heart disease several years later, he sought compensation on the basis that, under S 7-51-201(a)(1) of the Tennessee Code, any impairment of health by a heart condition or hypertension is presumed to have been incurred in the line of duty if the afflicted person meets several conditions. The trial court found that Officer failed to meet these conditions. In addition, it found that any presumption that working for Department caused the disease had been overcome by Department. We affirm. http://www.tba.org/tba_files/TCA/burressdonniew.wpd LESLIE C. CROSSETT, et al. v. ROY E. FULLER, et al. Court:TCA Attorneys: W. Collins Bonds, Milan, Tennessee, for the appellants, Leslie C. Crossett and wife, Wanda L. Crossett and Harold Crossett, Leslie Crossett and Bobby Crossett as Trustees of the Crossett Trust. Dwayne D. Maddox, III, Huntingdon, Tennessee, for the appellees, Roy E. Fuller and wife, Louise B. Fuller. Judge: FARMER First Paragraph: This is an appeal from a boundary dispute. The property in dispute is a roadway used by both parties to access their properties. The trial court determined the common boundary line, provided the Crossetts with an easement for ingress and egress, and awarded the Fullers their costs. The Crossetts appeal. We affirm. http://www.tba.org/tba_files/TCA/crossettlesliec.wpd KATHRYN DARDEN v. BRADLEY SENSING, et al. Court:TCA Attorneys: Larry L. Crain; Clinton W. Watkins, Brentwood, TN, for Appellant W. Gary Blackburn; John R. Callcott, Nashville, TN, for Appellees Judge: HIGHERS First Paragraph: This appeal arises from the Appellant's purchase of a house and property owned by the Appellees. Following the purchase, a landslide occurred on the property. The Appellant filed a complaint in the Chancery Court of Davidson County seeking compensatory damages against the Appellees for fraud, intentional misrepresentation, negligent misrepresentation, breach of warranty, breach of contract, deceit, and violation of the Tennessee Consumer Protection Act. Following a jury trial, the jury entered a verdict in favor of the Appellees. The Appellant filed a motion for a new trial. The trial court denied the motion for a new trial. The Appellant appeals the jury verdict in favor of the Appellees and the denial of the motion for a new trial by the Chancery Court of Davidson County. For the reasons stated herein, we affirm the trial court's decision. http://www.tba.org/tba_files/TCA/dardenkathryn.wpd CHRISTOPHER JAMES FARLEY v. CAROLLE ANN FARLEY Court:TCA Attorneys: Middlebrooks & Gray, Jackson, For Appellant, Carolle Ann Farley No appearance by appellee. Judge: CRAWFORD First Paragraph: This appeal involves a change of custody motion filed by Mother in the chancery court which had previously entered a divorce decree awarding joint custody of the minor child, with primary physical custody with Father. The chancery court dismissed the motion, holding that it had no jurisdiction to hear a change of custody motion by virtue of a previously filed petition in juvenile court to declare the child dependent and neglected, which petition was dismissed by the juvenile court. Mother was granted an interlocutory appeal. We vacate and remand. http://www.tba.org/tba_files/TCA/farleychris.wpd CLYDE HOLT, INDIVIDUALLY AND AS NEXT OF KIN OF CLAUDINE VERNON WALLER v. CITY OF MEMPHIS, et al. Court:TCA Attorneys: Marshall L. Gerber, Carmen Graves, and Michelle L. Betserai, Memphis, Tennessee, for the appellants City of Memphis and Richard Dexter. Stephen R. Leffler, Memphis, Tennessee, for the appellee Clyde Holt. Judge: LILLARD First Paragraph: This is a wrongful death case. The plaintiff called 911 after his mother experienced difficulty breathing and passed out. When the paramedics arrived, the plaintiff's mother had regained consciousness. After examining her, the paramedics told the plaintiff that his mother was not sick enough to be transported to the hospital. The plaintiff asked that his mother be transported to the hospital, but nevertheless signed a form refusing transport to the hospital. A few hours later the plaintiff's mother's condition worsened. When the paramedics returned, they found the mother unconscious, and immediately took her to the hospital. She died seven days later. The plaintiff filed a wrongful death suit, alleging that the paramedics were negligent in not transporting his mother to the hospital on their first run. The trial court found the paramedics negligent and awarded the plaintiff a money judgment. We reverse, holding that the plaintiff was required to establish by expert testimony the standard of care for the paramedics. http://www.tba.org/tba_files/TCA/holtc.wpd WILMA LUCCHESI v. ALCOHOL AND LICENSING COMMISSION OF THE CITY OF MEMPHIS, TENNESSEE Court:TCA Attorneys: Robert L.J. Spence, Jr., City Attorney; Patti C. Bowlan, Deputy City Attorney, for Appellant, Alcohol and Licensing Commission of the City of Memphis, Tennessee S. Ronald Lucchesi, Memphis, for Appellee, Wilma Lucchesi C. William Denton, Memphis, For Amici Curiae, Retailers for Law Enforcement Judge: CRAWFORD First Paragraph: Liquor store owner applied to the Alcohol and Licensing Commission of Memphis, Tennessee for permission to transfer the liquor license to a new location pursuant to an ordinance allowing transfer to certain locations if the owner's location is taken by governmental action. The alcohol commission denied the application, and the liquor store owner filed a petition for writ of certiorari in the chancery court. The chancery court granted owner summary judgment, reversing the decision of the alcohol and licensing commission. The city has appealed. We vacate and remand. http://www.tba.org/tba_files/TCA/lucchesiwil.wpd STEVE MAIROSE, et al. v. FEDERAL EXPRESS CORPORATION Court:TCA Attorneys: Kenneth Roberts, Larry Kelly, Denver, CO; Robert L. J. Spence, Jr., M. Scott Willhite, Memphis, TN, for Appellants R. Larry Brown, Colby S. Morgan, Memphis, TN; E. Scott Smith, Andrew D. McClintock, Atlanta, GA, for Appellees Judge: HIGHERS First Paragraph: This appeal arises from a breach of contract claim brought by the Appellants against the Appellee. Following a six week jury trial, the jury entered a verdict in favor of the Appellants. The Appellee filed a motion for a judgment notwithstanding the verdict and, in the alternative, a motion for a new trial. The Chancery Court of Shelby County granted the Appellee's motion for a judgment notwithstanding the verdict and, in the alternative, granted a conditional new trial. The Appellants appeal the grant of the Appellee's motion for a judgment notwithstanding the verdict and the grant of a conditional new trial by the Chancery Court of Shelby County. For the reasons stated herein, we affirm in part, reverse in part, and remand this case for a new trial in accordance with this opinion. http://www.tba.org/tba_files/TCA/mairosesteve.wpd KENNETH N. PSILLAS, et al. v. HOME DEPOT, U.S.A., INC. Court:TCA Attorneys: Richard D. Moore, Nashville, Tennessee, for the appellant, Home Depot U.S.A., Inc. Irwin J. Kuhn and Daniel B. Eisenstein, Nashville, Tennessee, for the appellees, Kenneth N. Psillas, A Minor, and Nicholas S. Psillas and Deborah K. Psillas. Judge: KOCH First Paragraph: This appeal involves an eight-year-old boy who was injured while playing on a roll of carpet in a home improvement store. The child and his parents filed a negligence action against the home improvement retailer in the Circuit Court for Williamson County. After extensive discovery, the retailer moved for summary judgment on the ground that the child and his parents had failed to demonstrate that they would be able to prove all the necessary elements of their negligence claim. The child and his parents responded that they had presented sufficient evidence to make out their claim based on the doctrine of res ipsa loquitur. The trial court denied the motion for summary judgment but authorized the retailer to pursue a Tenn. R. App. P. 9 interlocutory appeal. We have determined that the trial court erred by denying the retailer's summary judgment motion because the boy and his parents have not presented sufficient evidence to invoke the res ipsa loquitur doctrine. Accordingly, we reverse the order and remand the case to the trial court with directions that the case be dismissed. http://www.tba.org/tba_files/TCA/psillaskn.wpd PYRAMID COMPUTERS, INC. v. BEN GASPARRO, d/b/a PROFESSIONAL TAX AND BOOKEEPING Court:TCA Attorneys: Danny P. Dyer, Knoxville, TN, for Appellant No Brief filed for Appellee Judge: HIGHERS First Paragraph: This case involves a business relationship between Pyramid Computers, Inc., and Ben Gasparro. Mr. Gasparro purchased computer equipment and related services from Pyramid for use in his businesses. Mr. Gasparro also sold Pyramid computers to his clients. Pyramid sued and alleged that Mr. Gasparro owed it $14,446.32. The trial court entered judgment for Pyramid in the amount of $11,989.32. Pyramid appeals, alleging that the trial court erred in reducing the amount it sought and that the trial court erred in denying prejudgment interest Tenn. R. App. P. 3; Appeal as of Right; Judgment of the Circuit Court Affirmed in Part, Reversed in Part and Remanded http://www.tba.org/tba_files/TCA/pyramidcomputers.wpd TONY REEVES, et al. v. CHARLES H. GRAVES, SR., et al. Court:TCA Attorneys: L.L. Harrell, Jr., Trenton, Tennessee, for the appellants, Charles H. Graves, Sr. and Big Tenn Communications Company, Inc. Sam J. Watridge, Humboldt, Tennessee, for the appellees, Tony Reeves and Bill Haney. Judge: LILLARD First Paragraph: This is a contract case. The plaintiffs sued the defendant for breach of an oral agreement to provide financing for a radio station they established. The trial court held that the agreement fell within the statute of frauds because, as a practical matter, it could not be performed within one year. It then found that the plaintiffs were entitled to the reasonable value of their services under the doctrine of quantum meruit and awarded them shares of the radio station stock pursuant to the original oral agreement. We reverse and remand, holding that the statute of frauds does not apply to this agreement because it was not impossible to perform within one year. http://www.tba.org/tba_files/TCA/reevest.wpd RICK ROELKE v. WILLIAM HICKERSON, M.D., et al. Court:TCA Attorneys: Rick Roelke, Millington, Tennessee, Pro Se. William H. Haltom, Jr., Michael E. Keeney, and Craig C. Conley, Memphis, Tennessee, for the appellees, William Hickerson, M.D. and UT Medical Group. Judge: LILLARD First Paragraph: This is a medical malpractice case. The trial court dismissed the plaintiff's complaint because it was not filed within the applicable statute of limitations. We affirm. http://www.tba.org/tba_files/TCA/roelker.wpd ROY ANDERSON CORPORATION v. WESTCHESTER FIRE INSURANCE COMPANY, et al. Court:TCA Attorneys: Michael I. Less and Christopher M. Caputo, Memphis, Tennessee, for the appellant, Roy Anderson Corporation. Kenneth R. Shuttleworth and Robert A. Talley, Memphis, Tennessee, for the appellees, Westchester Fire Insurance Company and Continental Insurance Company. Judge: FARMER First Paragraph: Roy Anderson Corporation secured builders risk insurance from Westchester Fire Insurance Company and Continental Insurance Company to cover construction of a federal correctional facility. As a result of defective workmanship by the masonry subcontractor, Roy Anderson Corporation sustained losses when it had to repair completed, non-defective work of other trades damaged by the masonry subcontractor. Roy Anderson filed a notice of claim based upon these damages to Westchester Fire Insurance Company and Continental Insurance Company approximately two years after discovering the defective work. The insurance companies filed a motion for summary judgment, claiming that they were prejudiced by untimely notice; that the defective workmanship exclusions in the policies applied thereby excluding Roy Anderson Corporation's claim for loss; and that the policies' contractual limitation periods precluded the claim. The trial court granted summary judgment on the first two grounds. We affirm the grant of summary judgment on the ground that the defective workmanship exclusions applied. http://www.tba.org/tba_files/TCA/royandersoncorp.wpd BILLY RHODES STEAGALL v. NANCY ROSE STEAGALL Court:TCA Attorneys: Gregory D. Smith, Clarksville, Tennessee, for the appellant, Nancy R. Steagall. Barry B. White, Lewisburg, Tennessee, for the appellee, Billy Rhodes Steagall. Judge: KOCH First Paragraph: This appeal involves a post-divorce dispute regarding the custody a 15-year-old boy. In August 1997, the boy's father petitioned the Chancery Court for Marshall County to change the minor's custody because of his concern that the mother's attempt to home school the boy had undermined his education and development of social skills. The mother opposed the petition and requested an increase in child support. During the June 1998 trial, the father presented evidence raising serious questions about the progress of the child's education and development of social skills, as well as other aspects of the mother's approach to parenting. The mother presented no evidence of her own. Instead, after the close of the father's proof, she asserted that the trial court could remediate the acknowledged deficiencies without changing custody. Thereafter, the parties and the court discussed at length the provisions of a proposed remedial order, and the hearing was adjourned when the parties and the court believed they had agreed on the contents of the proposed order. Before the trial court entered the proposed order, the wife took issue with a provision requiring her to enroll the child in public school. The trial court informed the parties that it had understood that both parties had agreed to send their child to public school and that it would resume the trial if its understanding was incorrect. Rather than requesting the trial court to resume the hearing, the mother filed this appeal claiming that the trial court had infringed on her constitutionally protected right to raise her child. We have determined, in accordance with Tenn. R. App. P. 36(a), that the mother is not entitled to appellate relief because she is, in part, responsible for the error and because she failed to pursue the reasonably available steps that would have nullified the harmful effect of the error. Accordingly, we affirm the judgment. http://www.tba.org/tba_files/TCA/steagallbr.wpd IN THE MATTER OF: DAKOTA JEAN HOOVER-CRAWFORD, COLTON RAY THOMAS & DUSTY BRANDON THOMAS STATE OF TENNESSEE, DEPARTMENT OF CHILDREN'S SERVICES v. NIKI LYNN CRAWFORD THOMAS Court:TCA Attorneys: Adam T. Dodd, Murfreesboro, TN, for Appellant Paul G. Summers, Attorney General and Reporter, Elizabeth C. Driver, Assistant Attorney General, for Appellee Susan G. Cox, Murfreesboro, TN, Guardian Ad Litem Judge: HIGHERS First Paragraph: This is a suit for the termination of parental rights. The Appellee filed a petition to terminate the Appellant's parental rights to three of her minor children. Following a hearing, the Juvenile Court of Cannon County entered an order terminating the Appellant's parental rights. The Appellant appeals the trial court's order terminating her parental rights. For the reasons stated herein, we affirm the trial court's decision. http://www.tba.org/tba_files/TCA/thomasnikilynn.wpd THE WEATHER DOCTOR SERVICES CO. , INC., v. Mark Stephens, et al. Court:TCA Attorneys: J. Nolan Sharbel and J. Terry Holland, Knoxville, Tennessee, for the Appellant, The Weather Doctor Services Co., Inc. April D. Carroll and Bruce D. Fox, Clinton, Tennessee, for the Appellees, Mark and Cindy Stephens Judge: GODDARD First Paragraph: This is a suit in quantum meriut by The Weather Doctor Services Co., Inc., a subcontractor of David T. Goldnetz, d/b/a Architectural Custom Home Builders, Inc., against Mark Stephens and his wife Cindy Stephens. The Trial Court sustained the Stephenses' motion for summary judgment, finding that the undisputed facts did not sustain a cause of action in quantum meriut. We affirm. http://www.tba.org/tba_files/TCA/weatherdoctor.wpd BARBARA WHITE v. DR. JOHN ALBRITTON, et al. Court:TCA Attorneys: Craig V. Morton, Memphis, TN, for Appellant J. Kimbrough Johnson, Memphis, TN, for Appellees, John Albritton, M..D., Mid-South Ob-Gyn Group, P.C., and Thomas Greenwell, M.D. Michael E. Keeney, Memphis, TN, for Appellees, Herbert Taylor, M.D., George H. Peeler, M.D., and Michael Marshall, M.D. James L. Kirby, Tabitha f. McNabb, Memphis, TN, for Appellee, Susan Murrmann, M.D. Judge: HIGHERS First Paragraph: This appeal arises from a medical malpractice claim filed in the Circuit Court of Shelby County by the Appellant against the Appellees. On the first day of trial, the Appellant announced her intention to voluntarily nonsuit the case. The trial court entered an order of voluntary nonsuit. The Appellees filed a motion for discretionary costs. The trial court held that the motion was premature but would revisit the motion if the lawsuit was refiled. The Appellant refiled the lawsuit in the United States District Court for the Western District of Tennessee. The Appellees refiled the motion for discretionary costs in the Circuit Court of Shelby County. The circuit court granted the Appellees' motion for discretionary costs. The Appellant appeals from the grant of the Appellees' motion for discretionary costs by the Circuit Court of Shelby County. For the reasons stated herein, we affirm the trial court's decision. http://www.tba.org/tba_files/TCA/whitebarbara.wpd CARY WHITEHEAD & HOMER BUNKER v. JIM ROUT AND SHELBY COUNTY, TN Court:TCA Attorneys: R. Porter Feild, Memphis, for Appellants Michael C. Patton, Michael D. Fitzgerald, Memphis, for Appellees Judge: HIGHERS First Paragraph: This appeal involves a dispute over the sale of a tract of land to Shelby County for a road project. The trial court granted summary judgment to Shelby County. For the following reasons, we affirm. http://www.tba.org/tba_files/TCA/whiteheadcary.wpd PATRICIA WILLIAMS v. CANADA LIFE ASSURANCE COMPANY v. JAMES NELSON WILLIAMS and DEBORAH JEAN ELG Court:TCA Attorneys: John W. Palmer and Jason L. Hudson, Dyersburg, Tennessee, for the appellants, James Nelson Williams and Deborah Jean Elg. Charles S. Kelly, Sr., Dyersburg, Tennessee, for the appellee, Patricia Williams. Judge: GLENN First Paragraph: The plaintiff's husband died from a single gunshot wound to his chest which occurred while the two were alone in their home. By whose hand he died was the sole issue at both the trial and on appeal. If the plaintiff's husband shot himself, as she claims, she receives the proceeds from an insurance policy on his life. However, if she shot and killed her husband, as his adult children assert, they receive the insurance proceeds. Following the trial, the chancery court concluded that the death occurred as the result of a suicide. The defendants appealed, arguing that the presumption against suicide compels the conclusion that their father was shot to death by the plaintiff, their stepmother. Based upon our review, we affirm the judgment of the chancery court that the death occurred as the result of a suicide. http://www.tba.org/tba_files/TCA/williamsp.wpd WALLACE WAYNE WITHAM v. DARLA SMITHEY WITHAM Court:TCA Attorneys: Kathy Laughter Laizure and Nichole Elizabeth Soule_, Memphis, Tennessee for the appellant, Darla Smithey Witham. Stuart B. Breakstone, Memphis, Tennessee, for the appellee, Wallace Wayne Witham. Judge: KIRBY LILLARD First Paragraph: This is a post-divorce alimony dispute. The parties' marital dissolution agreement provided that the husband would pay the wife rehabilitative alimony for 24 months, or until Wife's death, remarriage, or cohabitation with an unrelated person of the opposite sex. The agreement also incorporated Tennessee Code Annotated S 36-5-101(a)(3), which provides for a rebuttable presumption that a third party living with an alimony recipient is contributing to the support of the recipient and that the recipient does not need the amount of alimony awarded. The husband filed a petition to terminate his alimony obligation, based on the wife's cohabitation with a third party. The trial court granted the husband's petition and terminated his obligation to pay alimony. The wife appeals. We reverse and remand, finding that the trial court erred in not considering testimony rebutting the presumption that the third party living with the wife was contributing to her support and that she no longer need the amount of financial support. http://www.tba.org/tba_files/TCA/withamw.wpd BOBBY J. ARMSTRONG v. STATE OF TENNESSEE Court:TCCA Attorneys: Ramsdale O'DeNeal, Jr., Jackson, Tennessee, for the Appellant, Bobby J. Armstrong. Paul G. Summers, Attorney General and Reporter; Michael Moore, Solicitor General; J. Ross Dyer, Assistant Attorney General; Al Earls, Assistant District Attorney General, for the Appellee, State of Tennessee. Judge: HAYES First Paragraph: The Appellant, Bobby J. Armstrong, appeals from the dismissal of his petition for post-conviction relief. Armstrong's convictions stem from his guilty pleas to two counts of felony murder and two resulting consecutive sentences of life without the possibility of parole. In this appeal, Armstrong raises the following issues for our review: (1) whether the guilty plea was knowingly, intelligently and voluntarily made; and (2) whether trial counsel was ineffective for failing to request a competency hearing to determine Armstrong's mental condition. After review, we find Armstrong's guilty plea was knowing, intelligent and voluntary and that he received effective assistance of counsel. As such, we affirm the judgment of the Madison County Circuit Court. http://www.tba.org/tba_files/TCCA/armstrongbj.wpd STATE OF TENNESSEE v. MARY CHRISTINE WHITESIDE COOK Court:TCCA Attorneys: Charles C. Morrow, Nashville, Tennessee, for the appellant, Mary Christine Whiteside Cook. Paul G. Summers, Attorney General and Reporter; John H. Bledsoe, Assistant Attorney General; Jerry N. Estes, District Attorney General; and Sandra N.C. Donaghy, Assistant District Attorney General, for the appellee, State of Tennessee. Judge: TIPTON First Paragraph: The defendant, Mary Christine Whiteside Cook, seeks to appeal as of right from the trial court's denying her petition to enforce a plea bargain agreement and her request for a writ of habeas corpus. She asserts that pursuant to the agreement, she is entitled to immediate release from her imprisonment, which results from her 1986 conviction upon her plea of guilty to first degree murder. We are constrained to dismiss the appeal because of the lack of jurisdiction. http://www.tba.org/tba_files/TCCA/cookmcw.wpd STATE OF TENNESSEE v. RYAN JACOB CUMMINS Court:TCCA Attorneys: David Allen Doyle, District Public Defender, for the appellant, Ryan Jacob Cummins. Paul G. Summers, Attorney General and Reporter; Elizabeth T. Ryan, Assistant Attorney General; Lawrence Ray Whitley, District Attorney General; and Sallie Wade Brown, Assistant District Attorney General, for the appellee, State of Tennessee. Judge: WILLIAMS First Paragraph: The defendant appeals from the trial court's imposition of the maximum sentences within the range. The State agrees that the trial court erred in applying enhancement factor (7). After review, we conclude that neither enhancement factor (7) nor (15) is applicable under these facts. Therefore, the defendant's sentence is modified to the statutorily required sentences of eight years in the Department of Correction at 100 percent for the aggravated sexual battery offense and to three years on each attempted aggravated sexual battery offense. http://www.tba.org/tba_files/TCCA/cumminsrj.wpd STATE OF TENNESSEE v. JANICE FLOYD Court:TCCA Attorneys: George Morton Googe, District Public Defender, and Vanessa D. King, Assistant Public Defender, for the appellant, Janice Floyd. Paul G. Summers, Attorney General and Reporter; Pamela A. Hayden-Wood, Assistant Attorney General; James G. (Jerry) Woodall, District Attorney General; and Shaun Alan Brown, Assistant District Attorney General, for the appellee, State of Tennessee. Judge: WILLIAMS First Paragraph: The appellant was found not guilty by reason of insanity on two counts of second degree murder pursuant to Tennessee Code Annotated section 39-13-210, and on one count of aggravated arson pursuant to Tennessee Code Annotated section 39-14-302. After the court found the appellant not guilty by reason of insanity, the appellant was committed to Western Mental Health Institute for diagnosis and evaluation pursuant to Tennessee Code Annotated section 33-7-303. At the conclusion of the appellant's diagnosis and evaluation, the doctors conducting the evaluation determined that the appellant was not committable under the Tennessee Code Annotated and refused to sign certificates of certification for the appellant to be involuntarily committed. At the end of the initial sixty (60) day diagnosis and evaluation period, the doctors at Western Mental Health Institute sought to have the appellant released into a mandatory outpatient treatment program. A hearing was conducted after the ninety (90) day mandatory release date, and the trial court ordered that the appellant be returned to Western Mental Health Institute. The appellant brought this appeal asserting that the trial court erred in ordering her continued detention after the expiration of the maximum ninety (90) day commitment period, and that such detention violates her rights. The state in its brief concedes error. After a thorough review of the issue presented in this case, we agree with the appellant and the state that the trial court erred. This case is remanded to the trial court for further action consistent with the instruction set forth herein. http://www.tba.org/tba_files/TCCA/floydj.wpd STATE OF TENNESSEE v. JIMMY WARDEL GLENN Court:TCCA Attorneys: Gary Antrican, District Public Defender; Julie K. Pillow, Assistant Public Defender, Somerville, TN 38068, for the appellant, Jimmy Wardel Glenn. Paul G. Summers, Attorney General and Reporter; John H. Bledsoe, Assistant Attorney General; Elizabeth Rice, District Attorney General; and Tracey A. Brewer, Assistant District Attorney General, for the appellee, State of Tennessee. Judge: WELLES First Paragraph: The Defendant, Jimmy Wardel Glenn, was convicted by a jury of possession with intent to deliver over .5 grams of cocaine. He was subsequently sentenced as a Range I, standard offender to nine years incarceration. In this appeal as of right, the Defendant asserts that the trial court erred by failing to grant a mistrial after a comment made by the State during its opening statement and that the evidence was insufficient to support the conviction. We find no error; thus, we affirm the judgment of the trial court. http://www.tba.org/tba_files/TCCA/glennjw.wpd STATE OF TENNESSEE v. JAMES E. GORDON Court:TCCA Attorneys: George Travis Hawkins, Franklin, Tennessee, for the appellant, James E. Gordon. Paul G. Summers, Attorney General and Reporter; David H. Findley, Assistant Attorney General; Ronald L. Davis, District Attorney General; and Derek Keith Smith, Assistant District Attorney General, for the appellee, State of Tennessee. Judge: WILLIAMS First Paragraph: The petitioner appeals the post-conviction court's denial of his petition for post-conviction relief. He claims that he received ineffective assistance of trial counsel because trial counsel failed to call certain witnesses and did not call the petitioner to testify on his own behalf at trial. After review, we affirm the judgment of the post-conviction court denying the petitioner any relief. http://www.tba.org/tba_files/TCCA/gordonje.wpd STATE OF TENNESSEE v. WHEATLEY JAMAR GRAHAM, III Court:TCCA Attorneys: Scott G. Kirk, Jackson, Tennessee, for the appellant, Wheatley Jamar Graham, III. Paul G. Summers, Attorney General and Reporter; Kim R. Helper, Assistant Attorney General; and Shaun A. Brown, Assistant District Attorney, for the appellee, State of Tennessee. Judge: LAFFERTY First Paragraph: After a jury trial, Defendant, Wheatley Jamar Graham, III, was convicted of two counts of attempted first degree murder, three counts of aggravated assault and possession of a weapon in commission of a felony. Defendant was sentenced to twenty-four (24) years incarceration as a Range I offender for two counts of attempted first degree murder, 4.5 years incarceration for three counts of aggravated assault and 1.9 years for possession of a weapon in the commission of a felony. The trial court ordered all sentences to be served concurrently, but merged two counts of aggravated assault with the two counts of attempted first degree murder. In this appeal as of right Defendant contends: (1) the evidence is insufficient to convict Defendant of attempted first degree murder in counts 3 and 4 of the indictment; (2) whether the trial court erred by permitting the State to introduce evidence that Defendant refused to permit law enforcement officers to obtain a "hand swab" from him; and (3) whether the trial court erred in not dismissing Defendant's convictions for aggravated assault in counts 7 and 8 instead of merging these convictions with counts 3 and 4, attempted first degree murder, as being in violation of the prohibition against double jeopardy. We conclude that the evidence in this record supports Defendant's convictions for attempted first degree murder, and that the trial court did not abuse its discretion by ruling Defendant's refusal for hand swabs was admissible and the trial court's merging of the two counts of aggravated assault with the attempted first degree murder conviction was not double jeopardy. Thus, we affirm the judgment of the trial court. http://www.tba.org/tba_files/TCCA/grahamwj.wpd STATE OF TENNESSEE v. TIMMY HERNDON Court:TCCA Attorneys: A C Wharton, Jr., District Public Defender, and Garland Ergueden, Assistant Public Defender, for the appellant, Timmy Herndon. Paul G. Summers, Attorney General and Reporter; Mark E. Davidson, Assistant Attorney General; William L. Gibbons, District Attorney General; and Jennifer Nichols, Assistant District Attorney General, for the appellee, State of Tennessee. Judge: WILLIAMS First Paragraph: The defendant was convicted of aggravated robbery, a Class B felony. Tenn. Code Ann. S 39-13- 402. The defendant was sentenced to a fifteen-year sentence at the Tennessee Department of Correction as a Range II offender. The defendant challenges the sufficiency of the evidence to support his conviction. After a thorough review of the record, we conclude that the evidence presented at the defendant's trial was sufficient to support his conviction. The judgment of the trial court is affirmed. http://www.tba.org/tba_files/TCCA/herndont.wpd STATE OF TENNESSEE v. JAMES HILL, JR. Court:TCCA Attorneys: William S. Rhea, Somerville, Tennessee (at trial), and C. Michael Robbins, Memphis, Tennessee (on appeal), for the appellant, James Hill, Jr. Paul G. Summers, Attorney General and Reporter; John H. Bledsoe, Assistant Attorney General; Elizabeth T. Rice, District Attorney General; and Colin A. Campbell, Assistant District Attorney General, for the appellee, State of Tennessee. Judge: RILEY First Paragraph: A Fayette County jury convicted the defendant of attempted aggravated robbery. The trial court sentenced the defendant to the maximum term of 15 years as a Range III persistent offender. In this appeal, the defendant challenges the sufficiency of the evidence and the length of his sentence. We affirm the judgment of the trial court. http://www.tba.org/tba_files/TCCA/hillj.wpd STATE OF TENNESSEE v. HAROLD W. HUMPHREYS Court:TCCA Attorneys: Lee Ofman, Franklin, Tennessee, for the Appellant, Harold W. Humphreys. Paul G. Summers, Attorney General and Reporter, Michael Moore, Solicitor General, John H. Bledsoe, Assistant Attorney General, Lee E. Dryer, Assistant District Attorney General, for the Appellee, State of Tennessee. Judge: HAYES First Paragraph: Harold W. Humphreys was found guilty by a Williamson County jury of driving under the influence, first offense. The trial court imposed a sentence of 11 months 29 days, suspended after service of fifteen days confinement. Humphreys challenges both his conviction and sentence raising the following issues on appeal: (1) the trial court's failure to suppress results of the BAC test; (2) the trial court's failure to instruct the jury as to the offense of driving while impaired, Tenn. Code Ann. S 55-10-418(a), as a lesser-included offense of driving under the influence; (3) the trial court's failure to dismiss a juror for cause; (4) the propriety of the prosecutor's opening statement; (5) the propriety of the prosecutor's alleged argumentative question to Humphrey during cross-examination; (6) the propriety of the prosecutor's closing argument; and (7) the length of the sentence imposed. Finding no error requiring reversal, we affirm both the judgment of conviction and the sentence imposed by the trial court. http://www.tba.org/tba_files/TCCA/humphreyshw.wpd RAYMOND O. JACKSON v. STATE OF TENNESSEE Court:TCCA Attorneys: Jefre S. Goldtrap, Nashville, Tennessee, for the appellant, Raymond O. Jackson. Paul G. Summers, Attorney General and Reporter; Jennifer L. Bledsoe, Assistant Attorney General; Victor S. (Torry) Johnson III, District Attorney General; and Kymberly L. A. Haas, Assistant District Attorney General, for the appellee, State of Tennessee. Judge: WILLIAMS First Paragraph: The petitioner appeals the trial court's dismissal of his petition for post-conviction relief. Specifically, he contends that the trial court denied him an opportunity to have a full and fair hearing on the merits of his claim. After review, we agree with the trial court and affirm the dismissal. http://www.tba.org/tba_files/TCCA/jacksonro.wpd STATE OF TENNESSEE v. ALBERT JOHNSON Court:TCCA Attorneys: J. C. McLin, Memphis, Tennessee, for the appellant, Albert Johnson. Paul G. Summers, Attorney General and Reporter; Jennifer L. Smith, Assistant Attorney General; William L. Gibbons, District Attorney General; and William D. Bond, III, Assistant District Attorney General, for the appellee, State of Tennessee. Judge: RILEY First Paragraph: The defendant was indicted for attempted especially aggravated robbery, and a Shelby County jury subsequently convicted the defendant as charged. In this appeal, the defendant alleges that the evidence is insufficient to sustain his conviction. We affirm the conviction. http://www.tba.org/tba_files/TCCA/johnsona.wpd STATE OF TENNESSEE v. WAYLON D. KNOTT Court:TCCA Attorneys: William B. (Jake) Lockert, III, District Public Defender; Columbus Wade Bobo, Assistant Public Defender, Ashland City, Tennessee, for the Appellee, Waylon D. Knott. Paul G. Summers, Attorney General and Reporter; Michael Moore, Solicitor General; David H. Findley, Assistant Attorney General; and Carey J. Thompson, Assistant District Attorney General, for the Appellant, State of Tennessee. Judge: HAYES First Paragraph: The Appellant, Waylon D. Knott, was indicted by a Stewart County Grand Jury on one count of manufacturing methamphetamine, one count of possession with intent to sell methamphetamine, and one count of felony possession of drug paraphernalia. Following a traffic stop for improper registration, Knott, after first refusing, granted consent to search his vehicle, which resulted in the seizure of a quantity of drugs. Knott moved to suppress the evidence upon grounds that consent was not voluntarily given. The trial court granted Knott's motion to suppress and dismissed the indictment, finding that the "search was unconstitutional because the officer had no reasonable, articulable suspicion of further criminal activity to justify the request to search the vehicle and further detain [Knott]." The State appeals from the trial court's ruling asserting that Knott's consent was voluntary and therefore the search was valid. We find that the dispositive issues presented are: (1) whether Knott was unlawfully detained at the time that he consented to the search and, if so; (2) whether Knott's consent to search was voluntarily given. Because no findings were entered relevant to these issues, we are required to remand for findings of fact on these questions. Accordingly, the judgment of the trial court is reversed and the case remanded. http://www.tba.org/tba_files/TCCA/knottwd.wpd JUSTIN C. MARR v. STATE OF TENNESSEE Court:TCCA Attorneys: C. LeAnn Smith (on appeal), and Lionel Barrett (at trial), Nashville, Tennessee, for the appellant, Justin C. Marr. Paul G. Summers, Attorney General & Reporter; Jennifer L. Bledsoe, Assistant Attorney General; Victor S. (Torry) Johnson III, District Attorney General; and Kymberly L.A. Haas, Assistant District Attorney General, for the appellee, State of Tennessee. Judge: WILLIAMS First Paragraph: The petitioner appeals the post-conviction court's denial of his petition. He claims that he received ineffective assistance of counsel and his plea of guilty was involuntarily entered. After review, we affirm the judgment of the post-conviction court. http://www.tba.org/tba_files/TCCA/marrjc.wpd STATE OF TENNESSEE v. AUGUSTO OVIEDO Court:TCCA Attorneys: A.C. Wharton, Josh Spickler, and Gregory Carman, Memphis, Tennessee, for the appellant, Augusto Oviedo. Paul G. Summers, Attorney General and Reporter; Laura E. McMullen, Assistant Attorney General; William L. Gibbons, District Attorney General; and Amy Weirich, Assistant District Attorney General, for the appellee, State of Tennessee. Judge: MCGEE OGLE First Paragraph: The appellant, Augusto Oviedo, was convicted by a jury in the Shelby County Criminal Court of robbery and was sentenced as a Range III persistent offender to fifteen years incarceration in the Tennessee Department of Correction. On appeal, the appellant raises the following issues for our review: (1) whether the evidence in this case is sufficient to sustain his conviction, and (2) whether the trial court failed to fully consider all mitigating factors when it sentenced the appellant to the maximum in the range for the crime. Upon review of the record and the parties' briefs, we affirm the judgment of the trial court. http://www.tba.org/tba_files/TCCA/oviedoa.wpd STATE OF TENNESSEE v. JOE L. PATRICK, SR. Court:TCCA Attorneys: Julie K. Pillow, Somerville, Tennessee, for the appellee, Joe L. Patrick, Sr. Paul G. Summers, Attorney General and Reporter; Mark E. Davidson, Assistant Attorney General; and Tracey A. Brewer, Assistant District Attorney General, for the appellant, State of Tennessee. Judge: LAFFERTY First Paragraph: This is an appeal by the State of Tennessee as to whether the trial court erred in granting the Appellee/Defendant's motion to award program credits toward his release date from the Department of Corrections. After docketing of this case on May 8, 2001, for disposition of the State's appeal, the State filed a motion to consider post-judgment fact pursuant to Tennessee Rules of Appellate Procedures 14(a). After a review of the motion and the attached affidavit in support of the motion, we granted the State's motion. After a review of the entire record, and the motion for post-judgment of fact, we find that the Defendant has been released from the Department of Corrections and, thus, this appeal is dismissed. http://www.tba.org/tba_files/TCCA/patrickjl.wpd STATE OF TENNESSEE v. RALPH PHILLIPS Court:TCCA Attorneys: Gary F. Antrican, District Public Defender, Somerville, Tennessee, for the appellant, Ralph Phillips. Paul G. Summers, Attorney General and Reporter; Mark E. Davidson, Assistant Attorney General; and Elizabeth T. Rice, District Attorney General, for the appellee, State of Tennessee. Judge: WELLES First Paragraph: The Defendant, Ralph Phillips, appeals as of right from the sentence imposed by the trial court, asserting that the trial court erred by denying his request for community corrections. We find no error; thus, we affirm the judgment of the trial court. http://www.tba.org/tba_files/TCCA/phillipsr.wpd STATE OF TENNESSEE v. DONALD W. RHEA, JR. Court:TCCA Attorneys: Michael J. Flanagan, Nashville, Tennessee, for the Appellant, Donald W. Rhea, Jr. Paul G. Summers, Attorney General and Reporter; Michael Moore, Solicitor General; Elizabeth B. Marney, Assistant Attorney General; Dan Hamm, Assistant District Attorney General, for the Appellee, State of Tennessee. Judge: HAYES First Paragraph: The Appellant, Donald W. Rhea, Jr. was indicted on one count of aggravated robbery and one count of attempted aggravated robbery stemming from a single criminal episode. Pursuant to a plea agreement, Rhea pled guilty to the lesser offenses of robbery and attempt to commit robbery. Following a sentencing hearing, the Davidson County Criminal Court sentenced Rhea to the maximum sentence of six years for robbery and three years for attempted robbery. The court, finding Rhea's history of criminal activity extensive, further ordered that these sentences be served consecutively, for an effective sentence of nine years in the Department of Correction. Rhea appeals to this court, contending that the trial court erred in ordering consecutive sentences. After review of the record, we affirm. http://www.tba.org/tba_files/TCCA/rheadwjr.wpd STATE OF TENNESSEE v. DANIEL L. SCOTT Court:TCCA Attorneys: Wayne Emmons, Robert C. Brooks, and Larry Copeland, Memphis, Tennessee, for the appellant, Daniel L. Scott. Paul G. Summers, Attorney General and Reporter; Clinton J. Morgan, Assistant Attorney General; William L. Gibbons, District Attorney General; and Amy Weirich, Assistant District Attorney General, for the appellee, State of Tennessee. Judge: MCGEE OGLE First Paragraph: The appellant, Daniel L. Scott, entered a best interest guilty plea in the Shelby County Criminal Court to one count of animal fighting, one count of cruelty to animals, and one count of keeping unvaccinated dogs. The trial court sentenced the appellant to incarceration in the Shelby County workhouse for one year for the animal fighting conviction, six months for the animal cruelty conviction, and thirty days for the keeping unvaccinated dogs conviction. The trial court further ordered that the sentences be served concurrently. The appellant requested probation, which request the trial court denied. On appeal, the appellant raises the following issue for our review: whether the trial court erred in denying the appellant probation. Upon review of the record and the parties' briefs, we affirm the judgment of the trial court. http://www.tba.org/tba_files/TCCA/scottdan.wpd J.Y. SEPULVEDA v. STATE OF TENNESSEE Court:TCCA Attorneys: Tim S. Moore, Newport, Tennessee, for appellant, J. Y. Sepulveda. Paul G. Summers, Attorney General & Reporter; Patricia C. Kussmann, Assistant Attorney General; Al Schmutzer, Jr., District Attorney General; and Michael Murphy, Assistant District Attorney, for appellee, State of Tennessee. Judge: SMITH First Paragraph: This is an appeal from the denial of the appellant, J. Y. Sepulveda's petition for post-conviction relief on the grounds that he was denied the effective assistance of counsel at the pre-trial stage of the prosecution. Appellant also alleges that the trial judge erred in not allowing testimony at the post- conviction hearing concerning ineffective assistance of trial counsel during trial. We find that none of these issues constitute error and affirm the trial court's denial of the petition for post-conviction relief. http://www.tba.org/tba_files/TCCA/sepulvedajy.wpd STATE OF TENNESSEE v. LARRY ELDON SHANNON Court:TCCA Attorneys: Calvin P. Turner, Lebanon, Tennessee; and Thomas F. Bloom, Nashville, Tennessee, for the Appellant, Larry Eldon Shannon. Paul G. Summers, Attorney General and Reporter; David H. Findley, Assistant Attorney General; William C. Whitesell, Jr., District Attorney General; and Paul A. Holcombe, III, Assistant District Attorney General, for the Appellee, State of Tennessee. Judge: WEDEMEYER First Paragraph: The Defendant, Larry Shannon, was convicted by a jury of misapplication of contract funds, a Class E felony, and making a harassing telephone call, a Class A misdemeanor; he was acquitted of theft of property in an amount over $10,000. The trial court sentenced the Defendant as a Range I, standard offender to eighteen months for the misapplication of contract funds conviction. The Defendant was ordered to serve ninety days in jail, with the remainder to be served on probation. The Defendant was also sentenced to eleven months, twenty-nine days for the harassing telephone call conviction, to be served on probation. In this appeal as of right, the Defendant raises the following issues for our review: (1) whether Tennessee Code Annotated S 66-11-140 unconstitutionally shifts the burden of proof to the defendant; (2) whether the evidence was sufficient to support the Defendant's convictions; (3) whether the trial court erred by permitting the State to mention bad checks written by the Defendant; and (4) whether the trial court erred by enhancing the Defendant's sentence and by denying judicial diversion. We hold that the Defendant waived any issue he had regarding a shift in the burden of proof by not presenting the issue to the trial court and that the use of the presumption set forth in the statute does not constitute plain error. We further hold that the evidence was sufficient to support the Defendant's convictions, that the trial court did not err by permitting the State to mention bad checks, and that the trial court did not err in sentencing the Defendant. Accordingly, we affirm the judgment of the trial court. http://www.tba.org/tba_files/TCCA/shannonld.wpd STATE OF TENNESSEE v. JEREMY MICHAEL SHELTON Court:TCCA Attorneys: Victoria L. DiBonaventura, Paris, Tennessee, for the appellant, Jeremy Michael Shelton. Paul G. Summers, Attorney General & Reporter; J. Ross Dyer, Assistant Attorney General; and Steve Garrett, Assistant District Attorney General, for the appellee, State of Tennessee. Judge: WADE First Paragraph: The defendant, Jeremy Michael Shelton, was convicted of theft of property over $10,000. The trial court imposed a three-year sentence. One year is to be served in continuous confinement and the remaining two years are to be served in Community Corrections. In this appeal of right, the defendant argues that the evidence was insufficient and that the sentence is excessive. The conviction is affirmed. The judgment is modified, however, to reflect that the confinement portion of the split sentence is to be served in the local jail. http://www.tba.org/tba_files/TCCA/sheltonjm.wpd STATE OF TENNESSEE v. LISA WHITE Court:TCCA Attorneys: Steven B. Ward, Madisonville, Tennessee, for appellant, Lisa White. Paul G. Summers, Attorney General & Reporter; Elizabeth B. Marney, Assistant Attorney General; Jerry N. Estes, District Attorney General; and Chalmers Thompson, Assistant District Attorney, for appellee, State of Tennessee. Judge: SMITH First Paragraph: The appellant, Lisa White, a/k/a Lisa Croft, appeals her conviction for aggravated robbery. On appeal, the appellant challenges the sufficiency of the evidence and alleges she was prejudiced by allegedly improper remarks by the prosecutor during opening arguments. After a thorough review of the record, this Court disagrees and affirms the appellant's conviction. http://www.tba.org/tba_files/TCCA/whitelisa.wpd PLEASE FORWARD THIS E-MAIL! 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