Opinion Flash

June 24, 2003
Volume 9 — Number 112

Following this index are summaries of each case, including its name, first paragraph, author's name, and the names of attorneys for the parties of each opinion.

This Issue (IN THIS ORDER):
06 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
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

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Howard H. Vogel
Knoxville, Tennessee
Editor-in-Chief, TBALink


STATE OF TENNESSEE v. RODNEY M. BUTLER

Court:TSC

Attorneys:

Nathan B. Pride,  Jackson, Tennessee, for the appellant, Rodney M.
Butler.

Paul G. Summers, Attorney General and Reporter; Michael Moore,
Solicitor General; J. Ross Dyer, Assistant Attorney General; Jerry
Woodall, District Attorney General; and Shaun A. Brown, Assistant
District Attorney General, for the appellee, State of Tennessee.                          

Judge: BARKER

First Paragraph:

The defendant, Rodney M. Butler, was convicted in the Criminal Court
for Madison County of: 1) unlawfully driving or being in physical
control of a motor vehicle while under the influence of an intoxicant;
2) unlawfully driving or being in physical control of a motor vehicle
with a blood or breath alcohol concentration of .10% or more; and 3)
driving under the influence, fourth offense.  At the sentencing
hearing, after merging the first two counts into count three, the
trial judge reduced the  $15,000 fine assessed by the jury to $10,000
and sentenced Butler to four years in the Department of Correction as
a Range II offender.  We granted this appeal to determine whether the
evidence was sufficient to support the defendant's convictions and
also to determine whether the defendant was properly sentenced.  After
an examination of the facts and the law pertinent to the issues, we
hold that the evidence was sufficient to support the defendant's
convictions.  Additionally, we hold that the defendant's sentence was
proper.

http://www.tba.org/tba_files/TSC/butlerrm.wpd

MELISSA COMBS CRANSTON v. EDWARD SCOTT COMBS

Court:TSC

Attorneys:

R. Allan Thompson, Clarksville, Tennessee, for the appellant, Edward
Scott Combs.

Steven C. Girsky and J. Matthew Miller, Clarksville, Tennessee, for
the appellee, Melissa Combs Cranston.                         

Judge: ANDERSON

First Paragraph:

We granted review to determine whether the Court of Appeals erred in
determining that the appellant (father) in this post-divorce case
failed to present evidence of a material change of circumstances
justifying a change of custody of the parties' two minor children. 
The Chancellor granted a change in custody from the appellee (mother)
after finding that there was a material change in circumstances that
presented a substantial risk of harm to the children.  A majority of
the Court of Appeals reversed, holding that there was no material
change of circumstances that presented a threat of substantial harm to
the children.  After reviewing the record and applying our recent
decision in Kendrick v. Shoemake, 90 S.W.3d 566 (Tenn. 2002), we
conclude that a material change of circumstances occurred after the
initial custody determination and that the modification of custody was
in the best interest of the children.  Although the Chancellor and the
Court of Appeals did not have the benefit of Kendrick in this case,
and therefore applied an incorrect legal standard, we affirm the
result reached by the Chancery Court.  Accordingly, the judgment of
the Court of Appeals is reversed, and the judgment of the Chancery
Court is reinstated.

http://www.tba.org/tba_files/TSC/cranstonmc2.wpd

HEALTH COST CONTROLS, INC. v. RONALD GIFFORD

Court:TSC

Attorneys:

H. Max Speight, Dresden, Tennessee, for the appellant, Ronald Gifford.

Thomas H. Lawrence and John M. Russell, Memphis, Tennessee, for the
appellee, Health Cost Controls, Inc.

Judge: ANDERSON

First Paragraph:

We granted this appeal to decide whether the Court of Appeals
correctly held that the appellee, Health Cost Controls, Inc., was
entitled to reimbursement for medical expenses on the basis that the
appellant, Ronald Gifford, failed to establish that he had not been
fully compensated, i.e., "made whole" for his damages.  The trial
court found that the appellant's insurance policy denied coverage for
expenses arising from an injury for which a third party was
responsible and granted summary judgment to Health Cost Controls. 
Although the Court of Appeals initially affirmed the trial court's
judgment, this Court remanded for further consideration under York v.
Sevier County Ambulance Authority, 8 S.W.3d 616 (Tenn. 1999), which
had held that an insured must be made whole before an insurer is
entitled to reimbursement.  On remand, the Court of Appeals concluded
that York was not applicable because the appellant failed to establish
that he had not been made whole and again affirmed the trial court's
grant of summary judgment to the appellee.  After reviewing the
record, however, we conclude that our decision in York requires that
the appellant Gifford be given an opportunity to establish that he was
not made whole and that if he establishes that he was not "made
whole," then the appellee, Health Cost Controls, is not entitled to
reimbursement.  Accordingly, we reverse the Court of Appeals' judgment
and remand to the trial court for further proceedings.

http://www.tba.org/tba_files/TSC/healthcosts.wpd

STATE OF TENNESSEE v. JEFFREY L. MARCUM

Court:TSC

Attorneys:

Paul G. Summers, Attorney General and Reporter; Michael E. Moore,
Solicitor General; John H. Bledsoe, Assistant Attorney General; James
G. "Jerry" Woodall, District Attorney General; and Jody S. Pickens,
Assistant District Attorney General, for the appellant, State of
Tennessee.

Clifford K. McGown, Jr., Waverly, Tennessee (on appeal); George Morton
Googe, Stephen P. Spracher (at trial and on appeal), and J. Colin
Morris (at trial), Jackson, Tennessee, for the appellee, Jeffrey L.
Marcum.                          

Judge: BIRCH

First Paragraph:

We granted the State permission to appeal pursuant to Rule 11 of the
Tennessee Rules of Appellate Procedure to determine whether fellatio
requires actual penetration.  The defendant was indicted and convicted
for rape of a child, aggravated sexual battery and incest.  At the
close of his trial on these indictments, the defendant requested an
instruction on attempted rape of a child, which the trial court
denied.  On appeal to the Court of Criminal Appeals, the defendant
contended that the victim's testimony supported an attempt instruction
because a jury could interpret it to be evidence that the defendant
did not actually engage in fellatio with the victim, thereby proving
that he committed attempted rape and not rape.  The appellate court
agreed and held that the trial court's failure to instruct on
attempted rape was reversible error.  We find that fellatio does not
require actual intrusion into the victim's mouth, and accordingly, we
hold that the evidence did not support an attempt instruction. 
Therefore, we reinstate the defendant's conviction for rape of a
child.

http://www.tba.org/tba_files/TSC/marcumjeffrey.wpd

STATE OF TENNESSEE v. MARCUS J. TURCO

Court:TSC

Attorneys: 

Irvin M. Salky and Stephen I. Cohen (at hearing), Memphis, Tennessee,
for the appellant, Marcus J. Turco.

Paul G. Summers, Attorney General and Reporter; Michael E. Moore,
Solicitor General; Kim R. Helper, Assistant Attorney General; William
L. Gibbons, District Attorney General; and Paul Thomas Hoover, Jr.,
Assistant District Attorney General, for the appellee, State of
Tennessee.                           

Judge: BIRCH

First Paragraph:

The parties have addressed several issues in this case, each of which
concerns the trial court's authority to grant relief pursuant to Rule
35(b) of the Tennessee Rules of Criminal Procedure, which articulates
the procedure for correcting or reducing a sentence.  Only one,
however is dispositive:  whether the trial court can, after
adjudicating guilt, imposing sentence, and entering judgment, grant
judicial diversion as Rule 35(b) relief.  This issue is one of first
impression in this state.  After careful examination of the record and
due consideration of applicable authority, we conclude that there is
no statutory authority for permitting judicial diversion after an
adjudication of guilt or imposition of sentence.  Therefore, judicial
diversion was erroneously granted.  Because our ruling on this issue
is dispositive of this cause, we need not address other issues
presented by the parties.

http://www.tba.org/tba_files/TSC/turcomarcus.wpd

MARIO VALENCIA, NEXT OF KIN AND HEIR AT LAW OF FRANCISCO VALENCIA,
DECEASED v. FREELAND AND LEMM CONSTRUCTION COMPANY

Court:TSC

Attorneys: 

Bruce S. Kramer and Scott A. Kramer, Memphis, Tennessee, for the
appellant, Mario Valencia.

James F. Eggleston, David Wade, and Stephen W. Vescovo, Memphis,
Tennessee, for the appellee, Freeland and Lemm Construction Company.

R. Sadler Bailey and Andrew C. Clarke, Memphis, Tennessee, for the
Amicus Curiae, Tennessee Trial Lawyers Association.                          

Judge: BIRCH

First Paragraph:

The plaintiff, as next friend of Francisco Valencia, filed two causes
of action against Valencia's employer, the defendant, Freeland and
Lemm Construction Company.  The first is an action in tort alleging
that the employer acted with "substantial certainty" in causing
Valencia's death.  The other action is a claim for benefits under the
Workers' Compensation Law.  The trial court dismissed the tort claims.
 On appeal, the Court of Appeals affirmed the trial court's ruling,
holding that in the absence of proof that the employer acted with the
"actual intent" to injure Valencia, the plaintiff's exclusive remedy
lay within the provisions of the workers' compensation statute.  We
granted review in order to determine whether the judicially-created
exception to the exclusive remedy requirement of workers' compensation
law, which requires "actual intent," should be broadly interpreted to
include an employer's conduct that is "substantially certain" to cause
injury or death.  Under the exception as currently construed, the
plaintiff cannot sustain a tort action against the employer unless he
can prove the employer acted with "actual intent."  Therefore, in the
absence of an allegation of "actual intent," the plaintiff is limited
to his workers' compensation remedies.  It is this result that the
plaintiff urges us to change.  We must decline to interpret the
exception as the plaintiff urges.  Accordingly, the provisions of the
workers' compensation statute are the exclusive remedy for employees
to obtain relief from employers for injuries occurring in the course
and scope of employment, unless "actual intent" to injure has been
established.

http://www.tba.org/tba_files/TSC/valenciamario.wpd

CITY OF SEVIERVILLE v. BILL GREEN, et al.

Court:TCA

Attorneys:

Linda J. Hamilton Mowles, Knoxville, Tennessee, for the Appellant,
City of Sevierville

Robert L. Ogle, Jr., Sevierville, Tennessee, for the Appellees, Bill
Green, Claudine Green, Dallas Coffman, and Jean Coffman                          

Judge: GODDARD

First Paragraph:

This appeal from the Sevier County Circuit Court questions whether the
Trial Court erred in awarding landowners compensation for incidental
damages to their property because the City of Sevierville changed the
frontage access to their property from unlimited access to restricted
access.  We affirm the judgment of the Trial Court.

http://www.tba.org/tba_files/TCA/sevierville.wpd

STATE OF TENNESSEE v. MICHAEL E. BIKREV

Court:TCCA

Attorneys:

Kurt O. Kosack, Brentwood, Tennessee, for the appellant, Michael E.
Bikrev.

Paul G. Summers, Attorney General and Reporter; Jennifer L. Bledsoe,
Assistant Attorney General; Victor S. Johnson, III, District Attorney
General; and Jason W. Lawless, Assistant District Attorney General,
for the appellee, State of Tennessee.                          

Judge: WEDEMEYER

First Paragraph:

The Defendant was charged with and convicted of burglary.  The trial
court sentenced him to three years' incarceration.  In this direct
appeal, the Defendant argues (1) that the trial court erred by denying
his motion for judgment of acquittal and (2) that the State did not
establish a proper chain of custody concerning the stolen property in
this case.  Having reviewed the record, we conclude that legally
sufficient evidence was presented at the Defendant's trial to support
his conviction and thus that the trial court did not err by denying
the Defendant's motion for judgment of acquittal.  We also conclude
that a proper chain of evidence was established for the recovered
property in this case and thus that the trial court did not abuse its
discretion by admitting the property into evidence.  We therefore
affirm the judgment of the trial court.

http://www.tba.org/tba_files/TCCA/bikrevme.wpd

STATE OF TENNESSEE v. JACKIE LEONARD DURHAM AND GARY LEE RAINES, ALIAS
GARY L. RAINS

Court:TCCA

Attorneys:   

Mike A. Little and David R. Barrow, Chattanooga, Tennessee, for the
appellants, Jackie Leonard Durham and Gary Lee Raines, alias Gary L.
Rains.

Paul G. Summers, Attorney General and Reporter; P. Robin Dixon, Jr.,
Assistant Attorney General; William H. Cox, III, District Attorney
General; and Barry Allen Steelman and Christopher Poole, Assistant
District Attorneys General, for the appellee, State of Tennessee.                       

Judge: TIPTON

First Paragraph:

The defendants, Jackie Leonard Durham and Gary Lee Raines, alias Gary
L. Rains, appeal as of right their convictions by a Hamilton County
Criminal Court jury for second degree murder, a Class A felony. 
Durham received an agreed twenty-five-year sentence as a violent
offender, and Raines received an agreed twenty-year sentence as a
violent offender.  Both defendants contend that (1) the evidence is
insufficient to support their second degree murder convictions and (2)
prosecutorial misconduct in closing argument requires a new trial. 
Additionally, Raines contends that (3) the trial court committed plain
error by not instructing the jury on voluntary intoxication.  We
affirm the trial court's judgments of conviction.

http://www.tba.org/tba_files/TCCA/durhamjackieleona.wpd

STATE OF TENNESSEE v. JAMES McCLENNON

Court:TCCA

Attorneys: 

Ross E. Alderman, District Public Defender; C. Dawn Deaner, Assistant
Public Defender (on appeal); and Hollis I. Moore, Jr., and Christopher
T. Cohron, Assistant Public Defenders (at trial), for the appellant,
James McClennon.

Paul G. Summers, Attorney General and Reporter; Renee W. Turner,
Assistant Attorney General; Victor S. Johnson, III, District Attorney
General; and Bret T. Gunn and Michelle H. Thompson, Assistant District
Attorneys General, for the appellee, State of Tennessee.                          

Judge: GLENN

First Paragraph:

The defendant was convicted of theft of property over $10,000, felony
evading arrest with risk of death or injury, and felony reckless
endangerment.  The trial court merged the reckless endangerment
conviction with the evading arrest conviction, and sentenced the
defendant to fifteen years as a persistent offender for the theft
conviction and twelve years as a career offender for the felony
evading arrest conviction, the sentences to be served consecutively. 
On appeal, he presents the following claims:  (1) the evidence was
insufficient to support his convictions for theft over $10,000 and
felony evading arrest; (2) the trial court erred in excluding his
exculpatory statement, denying his request for a mistrial, and failing
to instruct the jury on the lesser-included offenses of unauthorized
use of a vehicle and reckless driving.  Following our review, we
conclude that the trial court, in its instructions as to theft over
$10,000, should have instructed the jury as to the Class A
misdemeanor, unauthorized use of a motor vehicle.  Accordingly, we
reverse the conviction for theft over $10,000 and remand for a new
trial.  The conviction for felony evading arrest with risk of death or
injury is affirmed.

http://www.tba.org/tba_files/TCCA/mcclennonjames.wpd

DAVID LYNN MCCLURE v. STATE OF TENNESSEE

Court:TCCA

Attorneys:

Kurt O. Kosack, Brentwood, Tennessee, for appellant, David Lynn
McClure.

Paul G. Summers, Attorney General & Reporter; Jennifer L. Bledsoe,
Assistant Attorney General, Victor S. Johnson, District Attorney
General; and Roger Moore, Assistant District Attorney General, for
appellee, State of Tennessee.                          

Judge: SMITH

First Paragraph:

The Petitioner, David Lynn McClure, was indicted on March 28, 1994 for
one count aggravated sexual battery and two counts of rape of a child.
 He was convicted by a jury of aggravated sexual battery, rape of a
child and attempt to commit the rape of a child.  He received an
effective sentence of 30 years as a Range I offender.  The petitioner
appealed his convictions and sentence, and they were affirmed.  See
State v. David Lynn McClure, No. 01C01-9505-CR-00145, 1997 WL 211254
(Tenn. Crim. App at Nashville, Apr. 30, 1997).  The petitioner filed a
pro se petition for post- conviction relief on October 14, 1999.
Following an evidentiary hearing counsel was appointed and an amended
petition was filed.  This petition was denied on October 31, 2001. 
The petitioner then filed a notice of appeal on November 15, 2001.  In
this appeal the petitioner raises the issue of whether the
post-conviction court correctly dismissed his petition for
post-conviction relief concluding that he received effective
assistance of counsel.  After a review of the record we find that
petitioner has failed to carry his burden of showing that the evidence
preponderates against the findings of the post-conviction court. 
Accordingly, the judgment of the lower court is affirmed.

http://www.tba.org/tba_files/TCCA/mccluredavid.wpd

RICHARD LYNN NORTON v. STATE OF TENNESSEE

Court:TCCA

Attorneys:

Richard Lynn Norton, Nashville, Tennessee, Pro Se.

Paul G. Summers, Attorney General and Reporter; Thomas E. Williams,
III, Assistant Attorney General; Victor S. (Torry) Johnson, III,
District Attorney General; and Jon Seaborg, Assistant District
Attorney General, for the appellee, State of Tennessee.                          

Judge: OGLE

First Paragraph:

The petitioner, Richard Lynn Norton, was convicted in 1989 of
aggravated assault and assault.  He received an effective sentence of
ten years incarceration in the Tennessee Department of Correction. 
Subsequently, the petitioner filed for habeas corpus relief,
contending that the indictment charging him with aggravated assault
was defective and therefore his conviction for aggravated assault is
void.  The trial court denied the petition for habeas corpus relief
and the petitioner appealed to this court.  Upon review of the record
and the parties' briefs, we affirm the judgment of the trial court.

http://www.tba.org/tba_files/TCCA/nortonrl.wpd

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