Opinion FlashJune 24, 2003Volume 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):
TBA members can get the full-text versions of these opinions three ways detailed below. All methods require a TBA username and password. If you have forgotten your password, you can look it up on-line at http://www.tba.org/getpassword.mgi . If you are a TBA member, but do not have a username and password, you can receive one online at http://www.tba.org/signup.mgi. Here's how you can obtain full-text version. Click the URL at end of each Opinion paragraph below. This option will allow you to download the original document. Howard H. Vogel 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 PLEASE FORWARD THIS E-MAIL! GET A FULL-TEXT COPY OF AN OPINION! JOIN THE TENNESSEE BAR ASSOCIATION! SUBSCRIBE TO OPINION FLASH! UNSUBSCRIBE TO OPINION FLASH? ... SURELY NOT! But if you must, visit the TBALink web site at: http://www.tba.org/op-flash.mgi Home • Contact Us • PageFinder • What's New • Help |
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