Opinion FlashJanuary 20, 2004Volume 10 — Number 012 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 KIMBERLY CLARK v. HARDEE'S FOOD SYSTEMS, INC., ET AL. Court:TSC - Workers Comp Panel Attorneys: D. Andrew Saulters, Nashville, Tennessee for appellant, Kimberly Clark Vanessa L. Comerford, Brentwood, Tennessee for appellee, Hardee's Food Systems, Inc., et al. Judge: WALLACE First Paragraph: This workers' compensation appeal has been referred to the Special Workers' Compensation Appeal Panel of the Supreme Court in accordance with Tennessee Code Annotated Section 50-6-225(e)(3) for hearing and reporting to the Supreme Court of findings of fact and conclusions of law. The appellant, employee, has appealed the trial court's decision in this case, holding the employee had failed to carry the burden of proof as to causation, and denied benefits. As discussed below, the panel has concluded the judgment should be affirmed. http://www.tba.org/tba_files/TSC_WCP/clarkkimberly.wpd DINAH FAYE COFFMAN v. DTR TENNESSEE, INC. Court:TSC - Workers Comp Panel Attorneys: Clarence Risin, of Knoxville, Tennessee, for Appellant, DTR Tennessee, Inc. James M. Davis, of Morristown, Tennessee, for Appellee, Dinah Faye Coffman. Judge: THAYER First Paragraph: This workers' compensation appeal has been referred to the Special Workers' Compensation Appeals Panel of the Supreme Court in accordance with Tenn. Code Ann. S 50-6-225(e)(3) for hearing and reporting to the Supreme Court of findings of fact and conclusions of law. The trial court awarded the employee 66 2/3 percent permanent partial disability. The employer insists the evidence preponderates against the award. Judgment of the trial court is modified to indicate the award is to each arm and the judgment as modified is affirmed. http://www.tba.org/tba_files/TSC_WCP/coffmand.wpd DEBRA A. PRESSLEY v. STATE OF TENNESSEE Court:TSC - Workers Comp Panel Attorneys: J. Anthony Farmer and John P. Dreiser, of Knoxville, Tennessee, for Appellant, Debra A. Pressley. Paul G. Summers, Attorney General and Reporter, and George H. Coffin, Jr., Senior Counsel for Appellee, State of Tennessee. Judge: THAYER First Paragraph: This workers' compensation appeal has been referred to the Special Workers' Compensation Appeals Panel of the Supreme Court in accordance with Tenn. Code Ann.S 50-6-225(e)(3) for hearing and reporting to the Supreme Court of findings of fact and conclusions of law. The Claims Commissioner dismissed the complaint finding that the employee's mental condition was of long duration and was the result of a gradual build-up of work stress. The judgment of the Claims Commission is reversed and the case is remanded. http://www.tba.org/tba_files/TSC_WCP/pressleyd.wpd JOHN THOMAS STILL v. COMMISSARY OPERATIONS, INC. Court:TSC - Workers Comp Panel Attorneys: Aubrey T. Givens, Madison, Tennessee, for appellant, John Thomas Still Mark A. Baugh, Nashville, Tennessee, for appellee, Commissary Operations, Inc. Judge: WALLACE 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 Section 50-6-225(e)(3) for hearing and reporting to the Supreme Court of findings of fact and conclusions of law. The trial court determined that I(1) Employee was entitled to the current cause of action pursuant to Tennessee Code Annotated Section 50-6-241(a)(2). The employee sustained no additional vocational disability over and above the previously awarded twenty-five percent. As discussed below, the panel has concluded the judgment of the trial court should be affirmed. http://www.tba.org/tba_files/TSC_WCP/stilljohn.wpd NANCY GAIL (PAULK) DORAN v. OATHER PAUL DORAN Court:TCA Attorneys: Lloyd R. Tatum, Henderson, TN, for Appellant Dennis W. Plunk, Savannah, TN, for Appellee Judge: HIGHERS First Paragraph: This appeal arises from the lower court's disposition of marital property. The lower court found that four parcels of real estate in Hardin County, Tennessee belonged to the parties as marital property and ruled that the parties held the parcels as tenants in common. The lower court then ordered each party to submit a sealed bid for the purchase of the other's interest in the four parcels, with the highest bidder to be awarded outright ownership. Husband appeals this manner of division, alleging that it fails to ensure that the winning bid equals or exceeds fair market value. For the following reasons, we reverse the ruling of the lower court and remand for further proceedings. http://www.tba.org/tba_files/TCA/doran.wpd STATE OF TENNESSEE v. MARCILLO ANDERSON Court:TCCA Attorneys: Brett B. Stein, Memphis, Tennessee for the appellant, Marcillo Anderson. Paul G. Summers, Attorney General & Reporter; Helena Walton Yarbrough, Assistant Attorney General; William L. Gibbons, District Attorney General; and Michael Leavitt, Assistant District Attorney General, for the appellee, State of Tennessee. Judge: SMITH First Paragraph: The appellant, Marcillo Anderson, was convicted by a jury of second degree murder and sentenced to twenty years as a Range One, Standard Offender. His release eligibility was classified as violent, requiring him to serve one hundred percent (100%) of his sentence. In this direct appeal, the appellant challenges the sufficiency of the evidence and the trial court's denial of a jury instruction on self-defense. We hold that none of the issues raised by the appellant warrant a reversal and affirm the conviction. http://www.tba.org/tba_files/TCCA/andersmar.wpd STATE OF TENNESSEE v. HOLLY FANT WITH CONCURRING OPINION Court:TCCA Attorneys: Tom W. Crider, District Public Defender, for the appellant, Holly Fant. Paul G. Summers, Attorney General & Reporter; Thomas E. Williams, III, Assistant Attorney General; Garry Brown, District Attorney General; and Jerald M. Campbell, Jr., Assistant District Attorney General, for the appellee, State of Tennessee. Judge: SMITH First Paragraph: The appellant, Holly Fant, pled guilty to aggravated assault by use of a deadly weapon resulting in bodily injury and agreed to have her sentence determined at a sentencing hearing. The trial court sentenced the appellant as a Range I, Standard Offender to a four-year sentence in the Tennessee Department of Correction. After an appeal, this Court reversed and remanded the case for a new sentencing hearing. See State v. Holly Fant, No. W2001-02634-CCA-R3-CD, 2002 WL 1284229 (Tenn. Crim. App. at Jackson, June 5, 2002). After a new sentencing hearing, the appellant was again sentenced by the trial court as a Range I, Standard Offender to a four-year sentence in the Tennessee Department of Correction. In this appeal, the appellant challenges her sentence by arguing that the trial court: (1) improperly applied certain enhancement factors to her sentence; (2) based its determination on evidence not in the record; and (3) improperly denied her request for a "special needs" Community Corrections sentence. After a complete review of the record, we affirm the judgment of the trial court. http://www.tba.org/tba_files/TCCA/fantholly_opn.wpd CONCURRING OPINION http://www.tba.org/tba_files/TCCA/fantholly_con.wpd STATE OF TENNESSEE v. GLEN HOLT CORRECTED OPINION WITH CONCURRING OPINION Court:TCCA Attorneys: William Allen, Oak Ridge, Tennessee, for the appellant, Glen Holt. Paul G. Summers, Attorney General and Reporter; Michael Moore, Solicitor General; John H. Bledsoe, Assistant Attorney General; Scott McCluen, District Attorney General; Roger Delp and Frank Harvey, Assistant District Attorney Generals, for the appellee, State of Tennessee. Judge: WEDEMEYER First Paragraph: A Morgan County jury found the Defendant, Glen Holt, guilty of first degree felony murder and aggravated robbery. The trial court sentenced the Defendant to nine years in prison for the aggravated robbery charge, to be served concurrently with a life sentence for the murder conviction. The Defendant appeals, contending: (1) that the evidence was insufficient to support his convictions; (2) that the trial court erred when it allowed a photograph, offered by the prosecution, to be admitted into evidence without a proper foundation; (3) that the jury did not follow the trial court's instructions with regard to felony murder; and (4) that he did not knowingly, voluntarily and intelligently waive his constitutional right to testify in his own defense. Although we conclude that issues (1), (2) and (3) are without merit, the record is insufficient for us to determine whether the Defendant personally and knowingly waived his right to testify. Therefore, we remand the case to the trial court for a hearing to determine whether the Defendant's right to testify was violated, and if so, whether the violation of the Defendant's right to testify was harmless beyond a reasonable doubt. CORRECTED OPINION http://www.tba.org/tba_files/TCCA/holtglen_opn.wpd CONCURRING OPINION http://www.tba.org/tba_files/TCCA/holtglen_con.wpd WALTER EUGENE INGRAM v. STATE OF TENNESSEE Court:TCCA Attorneys: Walter Eugene Ingram, Only, Tennessee, Pro se. Michael E. Moore, Solicitor General; David H. Findley, Assistant Attorney General; William L. Gibbons, District Attorney General; and Steve P. Jones, Assistant District Attorney General, for the appellee, State of Tennessee. Judge: OGLE First Paragraph: The defendant, Walter Eugene Ingram, filed a "Motion to Correct Illegal Sentence" in the Shelby County Criminal Court. Upon reviewing the motion and the State's response, the trial court summarily dismissed the motion, finding that it failed to allege grounds for relief. The defendant appealed. Upon review of the record and the parties' briefs, we conclude that the defendant's appeal should be dismissed. http://www.tba.org/tba_files/TCCA/ingramw.wpd STATE OF TENNESSEE v. GARY ALLEN LARKINS, JR. Court:TCCA Attorneys: Stephen M. Wallace, District Public Defender, and William A. Kennedy, Assistant Public Defender, for the appellant, Gary Allen Larkins, Jr. Paul G. Summers, Attorney General and Reporter; John H. Bledsoe, Assistant Attorney General; H. Greeley Wells, Jr., District Attorney General; and J. Lewis Combs, Jr., Assistant District Attorney General, for the appellee, State of Tennessee. Judge: TIPTON First Paragraph: A Sullivan County Criminal Court jury convicted the defendant, Gary Allen Larkins, Jr., of attempted aggravated assault, a Class D felony; resisting arrest, a Class B misdemeanor; and disorderly conduct, a Class C misdemeanor, and the trial court sentenced him to concurrent sentences of seven years, six months, and thirty days, respectively. The defendant appeals, claiming that the evidence is insufficient to support his convictions. We affirm the defendant's convictions but remand the case for entry of a corrected judgment for the attempted aggravated assault. http://www.tba.org/tba_files/TCCA/larkinsgaryallen.wpd STATE OF TENNESSEE v. JAMES LUSK, JR. Court:TCCA Attorneys: Bryan H. Hoss, Lee Davis, and David W. Wallace, Chattanooga, Tennessee, for the appellant, James Lusk, Jr. Paul G. Summers, Attorney General and Reporter; Helena Walton Yarbrough, Assistant Attorney General; William H. Cox, III, District Attorney General; and Barry Allen Steelman, Assistant District Attorney General, for the appellee, State of Tennessee. Judge: TIPTON First Paragraph: The defendant, James Lusk, Jr., appeals from his twenty-five-year sentence imposed by the Hamilton County Criminal Court following his guilty plea to attempted first degree murder, a Class A felony. The defendant claims that the trial court failed to apply and weigh mitigating factors properly. We affirm the judgment of the trial court. http://www.tba.org/tba_files/TCCA/luskjames.wpd STATE OF TENNESSEE v. JIMMY DAVID MCELROY Court:TCCA Attorneys: Paul G. Summers, Attorney General and Reporter; Renee W. Turner, Assistant Attorney General; Jerry N. Estes, District Attorney General; and Charles W. Pope, Jr., Assistant District Attorney General, for the appellant, State of Tennessee. Charles C. Burks, Jr., Knoxville, Tennessee, for the appellee, Jimmy David McElroy. Judge: RILEY First Paragraph: The state in this interlocutory appeal challenges the McMinn County trial court's order granting the defendant's motion to suppress evidence seized pursuant to a search warrant. In suppressing the evidence, the trial court found the informant's information in the affidavit referred to a different property location than the property authorized to be searched; therefore, the trial court found a lack of probable cause for the issuance of the search warrant. Upon review of the record and the applicable law, we affirm the trial court's order granting the motion to suppress. http://www.tba.org/tba_files/TCCA/mcelroyjimmy.wpd STATE OF TENNESSEE v. DWIGHT MILLER Court:TCCA Attorneys: Clifford K. McGown, Jr., on appeal, Waverly, Tennessee; Tom Crider, District Public Defender; and Perianne Houghton, Assistant Public Defender, at trial and on appeal, Trenton, Tennessee, for the appellant, Dwight Miller. Paul G. Summers, Attorney General & Reporter; Thomas E. Williams, III, Assistant Attorney General; Clayburn L. Peeples, District Attorney General; and Gary Brown, Assistant District Attorney General, for the appellee, State of Tennessee. Judge: SMITH First Paragraph: The appellant, Dwight Miller, was convicted of first degree murder and sentenced to life in prison in 1996. On December 29, 1998, this Court reversed the judgment of the trial court and remanded the case to the Haywood County Circuit Court for a new trial. See State v. Dwight Miller, No. 02C01-9708-CC-00300, 1998 WL 902592 (Tenn. Crim. App. at Jackson, Dec. 29, 1998). At the conclusion of the second trial, appellant was convicted again by a jury of first degree murder and sentenced to life in prison. The issues presented for our review include: (1) whether the trial court erred in permitting the prior recorded testimony of a witness to be read into the record; (2) whether the trial court erred in failing to grant a mistrial after a bomb threat occurred during the course of the trial; and (3) whether the evidence is sufficient to sustain the conviction for first degree murder. Appellate review is available for the sufficiency of the evidence despite the appellant's failure to file a timely motion for new trial under Tennessee Rule of Criminal Procedure 33(b). The review of the issues, however, is also dependent upon either a timely filed notice of appeal, or in the interest of justice, a waiver of the timely filing of a notice of appeal pursuant to Tennessee Rule of Appellate Procedure 4(a). Because the appellant filed an untimely motion for a new trial, his notice of appeal is likewise tardy. Additionally, the appellant has not sought a waiver of the timely filing of the notice of appeal. Under these circumstances we conclude that the appellant has waived review of these issues on appeal. Nevertheless, we have in the interest of justice, reviewed the primary issue of the sufficiency of the evidence. The evidence is more than sufficient to support the verdict of the jury. Accordingly, the judgment of the trial court is affirmed. http://www.tba.org/tba_files/TCCA/millerd.wpd STATE OF TENNESSEE v. GREGORY SKINNER Court:TCCA Attorneys: Tom W. Crider, District Public Defender, for the appellant, Gregory Skinner. Paul G. Summers, Attorney General and Reporter; Jennifer L. Bledsoe, Assistant Attorney General; Garry G. Brown, District Attorney General; and William D. Bowen and Jerald M. Campbell, Assistant District Attorneys General, for the appellee, State of Tennessee. Judge: GLENN First Paragraph: The defendant, Gregory Skinner, was convicted of two counts of sale of a Schedule II controlled substance, a Class C felony, and one count of sale of a counterfeit controlled substance, a Class E felony, and sentenced as a Range II, multiple offender to ten years for each of the two counts of sale of a Schedule II controlled substance, to be served concurrently, and to three years for the sale of a counterfeit controlled substance, to be served consecutively, for a total sentence of thirteen years. This sentence was ordered to be served consecutively to a previous sentence. The defendant appeals, arguing that the evidence was insufficient to support his convictions and that the trial court erred in applying a nonstatutory factor in setting his sentence. Following our review, we affirm the judgments of the trial court but remand for entry of corrected judgments in Counts 2 and 3. http://www.tba.org/tba_files/TCCA/skinner.wpd STATE OF TENNESSEE v. RICHARD EUGENE THOMPSON Court:TCCA Attorneys: Karen T. Fleet, Bolivar, Tennessee (at trial); and Mark L. Agee and Jason C. Scott, Trenton, Tennessee (at trial and on appeal), for the Appellant, Richard Eugene Thompson. Paul G. Summers, Attorney General & Reporter; P. Robin Dixon, Jr., Assistant Attorney General; Elizabeth T. Rice, District Attorney General; and Joe Van Dyke, Assistant District Attorney General, for the Appellee, State of Tennessee. Judge: WITT First Paragraph: The defendant, Richard Eugene Thompson, appeals the lower court's failure to grant alternative sentencing following his guilty plea to vehicular assault. Discerning no error, we affirm. http://www.tba.org/tba_files/TCCA/thompsnr.wpd STATE OF TENNESSEE v. CHARLES VANTILBURG, III Court:TCCA Attorneys: Leslie Ballin, Memphis, Tennessee, for the appellant, Charles Vantilburg, III. Paul G. Summers, Attorney General and Reporter; Thomas E. Williams, III, Assistant Attorney General; William L. Gibbons, District Attorney General; Thomas Henderson and Karen Cook, Assistant District Attorneys General, for the appellee, State of Tennessee. Judge: WILLIAMS First Paragraph: The defendant was convicted of second degree murder and sentenced to twenty years in the Tennessee Department of Correction. He contends on appeal that 1) the evidence was insufficient to prove that the killing was "knowing," 2) the trial court erred in admitting a photo of the victim while he was alive, allowing a "memo of understanding" to be read into evidence, and refusing to admit a report of an expert witness into evidence, 3) the State made improper remarks during closing argument, 4) the trial court gave erroneous jury instructions as to the definition of "knowingly," and 5) the sentence was improper. We conclude that the definition of "knowingly" given by the trial court improperly lessened the State's burden of proof and was not harmless beyond a reasonable doubt. Therefore, we reverse and remand for a new trial, based on the erroneous jury instruction given by the trial court. http://www.tba.org/tba_files/TCCA/vantilbu.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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