Opinion Flash

May 4, 2004
Volume 10 — Number 086

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):
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
19 New Opinion(s) from the Tennessee Court of Appeals
13 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 DEPT. OF CHILDREN'S SERVICES v. PAMELA ATKISON, et
al IN THE MATTER OF T.J., DOB 2/15/99 A Child Under Eighteen Years of
Age

Court:TCA

Attorneys:                          

Richard W. Vaughn, Jr., Milan, TN, for Appellant

Paul G. Summers, Attorney General and Reporter, Juan G. Villasenor,
Assistant Attorney General, Nashville, TN, for Appellee

Judge: HIGHERS

First Paragraph:

This case involves the termination of the parental rights of Mother
and Father over Child.  Only Mother appeals the Juvenile Court's
decision.  Specifically, the Juvenile Court found clear and convincing
evidence to terminate Mother's parental rights on the basis of
abandonment, persistent conditions, and noncompliance with the
permanency plan.  In addition, Mother appeals the trial court's denial
of her motion to transfer the case and have the issue presented to a
jury.  Finally, Mother asserts the trial court judge erred when he did
not recuse himself.  For the following reasons, we affirm the decision
of the trial court.

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

DOROTHY SUE BRYANT v. DAMON EUGENE BRYANT

Court:TCA

Attorneys:                          

James H. Bradberry, Dredsen, for the appellant Dorothy Sue Bryant.

Damon E. Campbell, Union City, for the appellee Damon Eugene Bryant.

Judge: KIRBY

First Paragraph:

This case involves an antenuptial agreement.  Prior to their marriage,
the husband and wife entered into an antenuptial agreement which
stated that each party waived his or her interest in any property
acquired  after the marriage in the individual spouse's name.  After a
nearly twenty-year marriage, the wife filed for divorce.  During the
divorce proceedings, the wife argued that the antenuptial agreement
should not affect the trial court's division of property acquired
during the marriage.  The trial court enforced the antenuptial
agreement, awarding all property held in the husband's name to the
husband, regardless of whether it would otherwise have been classified
as marital property.   The wife appeals.  We affirm, finding that the
wife waived her interest in the property under the antenuptial
agreement and that the evidence does not preponderate against either
the enforceability of the agreement or the trial court's division of
property.

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

WAYNELL C. BURNETTE v. TEDDY SUNDEEN, ET AL.

Court:TCA

Attorneys:                          

Gary M. Kellar and R. Kreis White, Brentwood, Tennessee, for the
appellants, Teddy Sundeen and Elhame Dauti.

Linda G. Shown, Alcoa, Tennessee, for the appellee, Waynell C.
Burnette.

Judge: SUSANO

First Paragraph:

In this litigation arising out of an automobile accident, Waynell C.
Burnette ("the plaintiff") filed a motion asking the trial court to
sanction Teddy Sundeen and Elhame Dauti ("the defendants") for a
discovery abuse.  Acting under the authority of Tenn. R. Civ. P.
37.02, the court entered a judgment by default against both defendants
and, in the same order, awarded the plaintiff damages of $100,000. The
defendants appeal, contending that they were not afforded proper
notice of the plaintiff's intention to raise the issue of damages at
the hearing on the motion for sanctions.  We vacate so much of the
trial court's order as awards the plaintiff unliquidated damages of
$100,000.

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

IN RE: NELLIE ELIZABETH CROWELL

Court:TCA

Attorneys:                          

Mark A. Ellmore, Jr., Nashville, Tennessee, for the appellants, Joseph
H. Nickens, Katherine N. Moser, Agnes E. Baker and Dana A. Nickens.

J. Frank Rudy, Jr. And W. Gregory Miller, Nashville, Tennessee, for
the appellees, The Orphans' Homes Affiliated with the Free Will
Baptist Church Denomination

Judge: FARMER

First Paragraph:

This is a Will construction case.  The decedent's Will provided that
her estate would be distributed to her husband.  However, the husband
predeceased the decedent leaving no issue.  The only remaining
provision in the Will provided that her estate would be distributed to
certain orphan's homes if she and her husband died at the same time. 
The trial court found it unreasonable to construe the Will to require
simultaneous death and distributed the estate to the orphan's homes. 
We hold that the Will contains a failed condition resulting in
intestate succession.  We reverse and remand.

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

STATE OF TENNESSEE, EX REL., JOEANN  KEE DAVIS v. FRANKIE LEE DAVIS

Court:TCA

Attorneys:                          

Marcus M. Reaves, Denmark, Tennessee, For Appellant, Frankie Lee Davis

Paul G. Summers, Attorney General and Reporter; Warren A. Jasper,
Assistant Attorney General, For Appellee, State of Tennessee ex rel.,
Joeann Kee Davis

Judge: CRAWFORD

First Paragraph:

Appellant seeks relief, under Tenn. R. Civ. P. 60.02, from final order
setting child support obligations.  Finding no extraordinary
circumstances, extreme hardship, or excusable neglect, we affirm.

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

PATRICIA ARCHARD DELL, Admrx. Of the Estate of James A. Archard v.
CECELIA PAYNE WRIGHT, Personal Representative of Earnest Payne, Jr.,
Deceased

Court:TCA

Attorneys:                          

Leonard E. Van Eaton, Memphis, TN, for Appellant

Bruce A. McMullen, Craig C. Conley, Memphis, TN, for Appellee

Judge: HIGHERS

First Paragraph:

Plaintiff brought suit alleging that Defendant committed medical
malpractice in the treatment of Plaintiff's deceased father.  Upon
conclusion of the trial, the jury found that Plaintiff knew or should
have known that Defendant's negligence caused injury to her father
more than one year prior to commencement of Plaintiff's suit. 
Consequently, the trial court entered judgment on the verdict for
Defendant, finding that Plaintiff's action is barred by the applicable
one-year statute of limitations.  Plaintiff appeals the verdict of the
jury.  For the following reasons, we affirm.

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

DANIEL HAMILTON v. T & W OF KNOXVILLE, INC., d/b/a LEXUS OF KNOXVILLE

Court:TCA

Attorneys:                          

William Turner Boone and M. Douglas Campbell, Jr., Knoxville,
Tennessee, attorneys for appellant, Daniel Hamilton.

Albert J. Harb and Kristi M. Davis, Knoxville, Tennessee, attorneys
for appellee, T & W of Knoxville, Inc., d/b/a Lexus of Knoxville.

Judge: INMAN

First Paragraph:

By special verdict the jury found that the defendant automobile dealer
willfully and knowingly violated the Consumer Protection Act by
selling the Plaintiff a used Lexus automobile that had been wrecked
but nevertheless was a certified vehicle under the manufacturer's
guidelines.  More than a year later - after the Plaintiff himself
wrecked the vehicle and drag-raced it various times - he discovered
that some panels had been re-painted, leading to the conclusion that
the vehicle had been wrecked before he purchased it.  The dealer
agreed to repurchase the vehicle which was left in its charge, but the
Plaintiff, after consulting counsel, returned to the Defendant's place
of business and removed the vehicle.  The jury assessed damages of
$4000.00, remitted to $2500.00.  The Plaintiff moved for treble
damages and attorney fees: the Defendant moved for judgment NOV,
because the issue of "willful and knowing" violation of the Tennessee
Consumer Protection Act is a question of law for the court.  The
motion for judgment NOV was granted. Plaintiff was awarded $5000.00
attorney fees which he claims is inadequate.  We affirm.

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

STACEY G. HILL v. DONNA ELIZABETH FRAZIER HILL

Court:TCA

Attorneys:                          

Glenna M. Ramer, Chattanooga, Tennessee, for the appellant, Stacey G.
Hill.

William H. Horton, Chattanooga, Tennessee, for the appellee, Donna
Elizabeth Frazier Hill.

Judge: SUSANO

First Paragraph:

Donna Elizabeth Frazier Hill ("Mother") filed a complaint against 
Stacey G. Hill ("Father") seeking to modify the parties' Permanent
Parenting Plan ("the parenting plan").  Father responded and filed a
counterclaim.  Mother proposed a revised plan that would reduce
Father's visitation time and increase his child support obligation. 
The trial court denied Mother's revised plan with respect to the
oldest child, but granted her proposed changes with respect to the
other children.  The trial court designated Father as the primary
residential parent of the oldest child and increased his child support
obligation for the younger children; however, the trial court refused
to order Mother to pay child support for the oldest child on the
ground that Father "has not required the [oldest] child to comply with
the original Parenting Plan based on the child's expressed desires." 
Father appeals, arguing that the trial court erred in deviating from
the Child Support Guidelines ("the Guidelines") based upon the ground
espoused by the court.  We vacate so much of the trial court's order
as absolves Mother of any obligation to support the oldest child in
the custody of Father.

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

MELISSA FRAZIER NORWOOD HOFFMEISTER now BRINK v. JOHN KENNETH
HOFFMEISTER

Court:TCA

Attorneys:                          

Melissa Hoffmeister Brink, Abita Springs, Louisiana, Pro Se.

Wayne Decatur Wykoff, Knoxville, Tennessee, for appellee, John Kenneth
Hoffmeister.

Judge: INMAN

First Paragraph:

The custody of a four-year old boy is the pivotal issue in this case. 
The Chancellor found that the father was the better qualified to be
the primary residential custodian of his son following a recitation of
the bizarre conduct of the mother.  We affirm.

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

SAMUEL HUMPHREYS v. RICHARD SELVEY

Court:TCA

Attorneys:                          

S. Russell Headrick and Jennifer Marie Eberle, Memphis, For Appellant,
Samuel Humphreys

Bill M. Wade, Memphis, For Appellee, Richard Selvey

Judge: CRAWFORD

First Paragraph:

Plaintiff, Tennessee buyer, filed complaint in Shelby County,
Tennessee circuit court against South Carolina seller for fraudulent,
unlawful, and tortious conduct in connection with contract for
purchase of antique soda dispensers.  Seller filed motion to dismiss,
alleging as grounds lack of personal jurisdiction and improper venue,
and trial court granted motion on both grounds.  Buyer appeals trial
court's finding that there were insufficient contacts to establish
personal jurisdiction of seller.  We reverse and remand.

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

JONATHAN INMAN, ET AL. v. WILBUR S. RAYMER, ET AL.

Court:TCA

Attorneys:                          

C. Douglas Fields, Crossville, Tennessee, for the appellants, Jonathan
Inman and wife, Keena Inman.

No brief filed on behalf of the appellees, Wilbur S. Raymer and wife,
Lois O. Raymer.

Judge: SUSANO

First Paragraph:

The real property addressed in the complaint was sold at a tax sale on
March 20, 2002.  That sale was confirmed by a judgment of the trial
court entered April 4, 2002.  The sale was prompted by the apparent
nonpayment of 1996 property taxes.  When the defendants, Wilbur S.
Raymer and wife, Lois O. Raymer ("the previous owners"), failed to
avail themselves of their right to redeem the property "within one (1)
year after entry of [the] order of confirmation of the tax sale" see
Tenn. Code Ann. S 67-5-2702(a) (2003), the plaintiffs, Jonathan Inman
and wife, Keena Inman ("the present owners") - who had received title
to the property as a result of a Clerk & Master's Deed dated April 4,
2003 - filed a complaint against the previous owners to quiet title. 
The trial court, acting sua sponte, dismissed the complaint, but did
so without prejudice.  The court concluded that Tenn. Code Ann. S
67-5-2504(d) (2003) prevents the present owners from suing to quiet
title prior to the expiration of the three-year period set forth in
that statute.  The present owners appeal.  We affirm.

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

WAYNE JERROLDS v. ROBERT D. KELLEY and wife, MITSY KELLEY  v. EDDIE K.
WHITLOW, TRUSTEE FOR THE HARDIN COUNTY BANK

Court:TCA

Attorneys:                          

Ken Seaton, Selmer, TN, for Appellants

Dennis W. Plunk, Savannah, TN, for Appellee

Judge: HIGHERS

First Paragraph:

This cases involves an action for declaratory judgment regarding an
easement for the benefit of a landlocked parcel.  The lower court
found that an easement does exist and that the owners of the servient
parcel are not entitled to monetary damages.  On appeal, the owners of
the servient parcel maintain that the lower court demonstrated bias in
its comments from the bench and, further, that it erred in failing to
award damages.  For the following reasons, we affirm the ruling of the
trial court.

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

JOHN W. JOHNSON v. BERNICE WADE

Court:TCA

Attorneys:                          

John W. Johnson, Trenton, TN, pro se

John C. Nowell, Jr., Trenton, TN, for Appellee

Judge: HIGHERS

First Paragraph:

This case involves a dispute over the ownership of certain real
property abutting the parcels of two neighboring landowners in Gibson
County, Tennessee.  The trial court rendered a judgment for Appellee
finding that Appellee owned the disputed property.  Additionally, the
trial court awarded Appellee her attorney's fees incurred in defending
against and counter-suing the Appellant.  We affirm the trial court
and remand for further proceedings consistent with this opinion.

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

STATE OF TENNESSEE, DEPARTMENT OF CHILDREN'S SERVICES v. SANDRA LILLY
IN THE MATTER OF: K.M. , DOB 7/6/88, A CHILD UNDER EIGHTEEN YEARS OF
AGE

Court:TCA

Attorneys:                          

Renee M. Creasy, Dyersburg, TN, for Appellant

Paul G. Summers, Attorney General & Reporter, Elizabeth C. Driver,
Assistant Attorney General, Nashville, TN, for Appellee

Judge: HIGHERS

First Paragraph:

This case arises from the termination of parental rights of Mother and
Father.  Only Mother has appealed the decision of the trial court,
terminating her parental rights on the grounds that (1) she abandoned
Child by failing to visit, (2) she abandoned Child by failing to
provide more than token support, and (3) the conditions which led to
Child's removal still persist.  Mother appeals arguing that the State
of Tennessee Department of Children's Services failed to carry its
burden of proof for these grounds.  In addition, Mother argues that
the Department of Children's Services failed to prove that such
termination of parental rights is in the best interest of Child. 
Finally, Mother argues the trial court committed prejudicial error
when it allowed the rebuttal testimony of a witness in violation of
the sequestration rule.  For the following reasons, we affirm the
decision of the trial court.

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

JIMMIE LIPFORD, ET AL. v. FIRST FAMILY FINANCIAL SERVICES, INC., ET
AL.

Court:TCA

Attorneys:                          

Andrew S. Johnston, Somerville, Tennessee and Michael D. Hickman,
Mobile, Alabama, for the Appellants, Tom Brown and Ora Polk.

Leo Bearman, Jr., Eugene J. Podesta, Jr., and R. Alan Pritchard,
Memphis, Tennessee, for the Appellees, First Family Financial
Services, Inc., First Family Financial Services Management Corp.,
Associates Financial Services Company of Tennessee, Associates
Investment Corporation, Associates Corp. of North America, Associates
First Capital Corporation, Citigroup Inc., Citifinancial Credit
Company, Stacy Powell, Lori Lax, Mary Robinson and Tammy Harper.

Judge: FARMER

First Paragraph:

Plaintiffs in this lawsuit seek damages for fraud and under the
Tennessee Consumer Protection Act.  The trial court excluded parol
evidence and awarded Defendant summary judgment.  We reverse.

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

JAMES L. PEACH, ET UX. v. ROBERT WESLEY MEDLIN, ET AL.

Court:TCA

Attorneys:                          

Phillip G. Hollis, Camden, For Appellants, Robert Wesley Medlin, Jimmy
D. Medlin and Christopher D. Medlin

Charles N. Griffith, Waverly, For Appellees, James L. Peach and wife,
Venetia K. Peach

Judge: CRAWFORD
 
First Paragraph:

Land owner filed complaint alleging trespass and seeking the removal
of structures and signs erected by appellants encroaching upon his
property.  Owner further sought injunction prohibiting appellants from
continued, unauthorized use of roads running across his property.  The
trial court found that appellants had an easement for use of one of
two roads.  The trial court's final order granted owner's request for
attorney's fees.  Both parties raise issues on appeal.  We affirm in
part and reverse in part.

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

MOHAMMAD RAFIEETARY v. MARYAM KHOSHROO RAFIEETARY

Court:TCA

Attorneys:                          

Kathleen D. Norfleet, J. Michael Fletcher, Steven R. Walker, Memphis,
TN, for Appellant

Stevan L. Black, John C. Ryland, Vickie Hardy Jones, Memphis, TN, for
Appellee

Judge: HIGHERS

First Paragraph:

This case concerns issues of alimony, child support, and dependency
exemptions, arising from the divorce of Husband and Wife.  Following a
hearing, the trial court awarded Wife rehabilitative alimony, ordered
Husband to pay 80% of Child's uninsured medical expenses over $500,
awarded each party the dependency exemption for Child on alternating
years, and ordered Husband to pay for Child's violin lessons and Boy
Scout expenses.  For the following reasons, we affirm in part, reverse
in part, and remand for further proceedings consistent with this
opinion.

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

STATE OF TENNESSEE, DEPARTMENT OF CHILDREN'S SERVICES v. JULIE ANN
TAYLOR & BRIAN K. TAYLOR IN THE MATTER OF S.A.T. & B.K.T., CHILDREN
UNDER EIGHTEEN YEARS OF AGE

Court:TCA

Attorneys:                          

Josh K. Polk, Waynesboro, TN, for Appellant

Paul G. Summers, Attorney General and Reporter, Dianne Stamey Dycus,
Deputy Attorney General, Nashville, TN, for Appellee

Judge: HIGHERS

First Paragraph:

This case involves the termination of Mother's and Father's parental
rights to their children, though only Mother appeals the decision of
the Juvenile Court.  After conducting a hearing, the lower court found
that there was clear and convincing evidence to terminate Mother's
parental rights on the bases of persistent conditions, noncompliance
with the permanency plan, and abandonment.  On appeal, Mother
challenges each of the three grounds given for termination.  For the
following reasons, we affirm the ruling of the trial court.

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

KELVIN SHOUGHRUE, ET AL. v. ST. MARY'S MEDICAL CENTER, INC., ET AL.

Court:TCA

Attorneys:                          

W. Morris Kizer, Knoxville, Tennessee, for the Appellants, J.D. Lee
and the law firm of Lee, Lee & Lee.

Amelia G. Crotwell and Farrell A. Levy, Knoxville, Tennessee, for the
Appellees, L. Martin McDonald and McDonald, Levy & Taylor.

Brian H. Trammell, Knoxville, Tennessee, for the Appellee, Jennifer
Bjornstad.

Judge: SWINEY
 
First Paragraph:

In this appeal in a medical malpractice lawsuit, the Appellants, J.D.
Lee and the law firm of Lee, Lee & Lee, contend that the Knox County
Circuit Court erred in its award of attorneys' fees.  We affirm the
judgment of the Trial Court and remand.

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

STATE OF TENNESSEE v. TYRIE BROWN

Court:TCCA

Attorneys:                          

David O. McGovern, Jasper, Tennessee, for the appellant, Tyrie Brown.

Paul G. Summers, Attorney General and Reporter; Richard H. Dunavant,
Assistant Attorney General; James Michael Taylor, District Attorney
General; and Steven M. Blount, Assistant District Attorney General,
for the appellee, State of Tennessee.

Judge: WEDEMEYER

First Paragraph:

A Franklin County jury convicted the Defendant, Tyrie Brown,  of
possession with intent to deliver more than 0.5 grams of cocaine,
assault and resisting arrest.  The trial court sentenced the Defendant
to thirteen years for the possession conviction and ninety days on
both the assault conviction and the resisting arrest conviction.  On
appeal, the Defendant contends that the evidence is insufficient to
support his convictions.  Finding no reversible error, we affirm the
judgments of the trial court.

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

STATE OF TENNESSEE v. PATRICK D. COLLINS

Court:TCCA

Attorneys:                          

Paul G. Summers, Attorney General and Reporter; Kim R. Helper,
Assistant Attorney General; Victor S. (Torry) Johnson, III, District
Attorney General; and Scott R. McMurtry, Assistant District Attorney
General, for the appellant, State of Tennessee.

V. Michael Fox, Nashville, Tennessee, for the appellee, Patrick D.
Collins.

Judge: WILLIAMS

First Paragraph:

The trial court dismissed count two of this indictment charging the
violation of the implied consent law and barred the State from arguing
in the defendant's trial for DUI that he knew he would suffer a loss
of driver's license if he refused the breath test.  The State appeals.
 We conclude that the defendant was sufficiently advised of the
possible suspension of his driver's license upon his refusal to submit
to testing to satisfy the warning requirement of Tennessee Code
Annotated section 55-10- 406(a)(2).  The defendant need not be advised
of the correct and exact term of the suspension in order to satisfy
the statutory warning requirements.  The defendant was advised that he
would suffer a loss of driver's license if he refused the breath test.
 We reverse the trial court's dismissal of the violation of implied
consent law.  Likewise, we reverse the trial court's limiting the
State from arguing that the defendant knew he would suffer a loss of
driver's license if he refused the breath test.  Accordingly, we
remand for trial consistent with this opinion.

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

STATE OF TENNESSEE v. ANTHONY CROWE
WITH DISSENTING OPINION

Court:TCCA

Attorneys:                          

Pamela Dewey-Rodgers, Selmer, Tennessee (at trial); and Karen T.
Fleet, Bolivar, Tennessee (at trial and on appeal), for the Appellant,
Anthony Crowe.

Paul G. Summers, Attorney General & Reporter; J. Ross Dyer, Assistant
Attorney General; Elizabeth T. Rice, District Attorney General; and
Jerry W. Norwood, Assistant District Attorney General, for the
Appellee, State of Tennessee.

Judge: WILLIAMS

First Paragraph:

The defendant, Anthony Crowe, appeals as of right the McNairy County
Circuit Court's denial of his motion to withdraw his guilty plea to
facilitation of first degree murder, for which he is serving a
sentence of eighteen years in the Department of Correction.  He also
complains that the length of his sentence is excessive and should be
modified. We conclude that the defendant has failed to establish that
the trial court abused its discretion in denying the motion to
withdraw the guilty plea.  Additionally, we find no error in the
sentence imposed by the trial court.  Accordingly, the judgment of the
trial court is affirmed.

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

DISSENTING OPINION
http://www.tba.org/tba_files/TCCA/croweanthony_dis.wpd

STATE OF TENNESSEE v. STANLEY RAY DAVIS IN RE: RAY D. DRIVER, d/b/a
DRIVER BAIL BONDS
ORDER

Court:TCCA

Judge: PER CURIAM

First Paragraph:

Upon its own motion, the court hereby withdraws the opinion and
vacates the judgment previously filed on April 26, 2004, in this case.
 A new opinion and judgment will be filed.

ORDER
http://www.tba.org/tba_files/TCCA/daviss.wpd

STATE OF TENNESSEE v. RONALD FIELDING

Court:TCCA

Attorneys:                          

David G. Hirshberg, Nashville, Tennessee, for the appellant, Ronald
Fielding.

Paul G. Summers, Attorney General and Reporter; Michael Moore,
Solicitor General; Helena Walton Yarbrough, Assistant Attorney
General; Victor S. Johnson, III, District Attorney General; Bernard
McEvoy, Assistant District Attorney General, for the appellee, State
of Tennessee.

Judge: WEDEMEYER

First Paragraph:

The Defendant, Ronald Fielding, pled guilty to three counts of rape of
a child, one count of rape of an incapacitated victim and two counts
of aggravated sexual battery.  Following a sentencing hearing, the
trial court imposed an aggregate sentence of fifty years in prison to
be served at 100 percent.  On appeal, the Defendant contends that: (1)
the trial court improperly weighed the enhancement and mitigating
factors; (2) the trial court abused its discretion by ordering that
his sentences run consecutively; and (3) his sentence is excessive. 
Finding no error, we affirm the trial court's judgments.

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

STATE OF TENNESSEE v. LAVERN "VON" GEANES

Court:TCCA

Attorneys:                          

Wayne T. DeWees, Bolivar, Tennessee, for the appellant, Lavern "Von"
Geanes.

Paul G. Summers, Attorney General and Reporter; Michael Markham,
Assistant Attorney General;  Elizabeth T. Rice, District Attorney
General; and Joe Van Dyke, Assistant District Attorney General, for
the appellee, State of Tennessee.

Judge: WILLIAMS

First Paragraph:

A jury convicted the defendant of delivery of 0.5 grams or more of a
Schedule II controlled substance (cocaine), a Class B felony.  He
contends that the trial court erred in (1) overruling his Batson
objection to the State's peremptory challenges of two prospective
jurors, and (2) overruling his objection to the introduction of the
cocaine seized and the subsequent test results based on the State's
failure to properly establish chain of custody.  The trial court's
decision to overrule the Batson objection was not clearly erroneous
because the State offered reasons for the challenges that do not
inherently evidence a discriminatory intent.  As to the second issue,
we conclude that the record does not establish a reasonable assurance
of the identity of the evidence.  Therefore, we reverse and remand for
a new trial.

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

JOHN T. HEFLIN v. STATE OF TENNESSEE

Court:TCCA

Attorneys:                          

H. Thomas Parsons, Manchester, Tennessee, for the appellant, John T.
Helfin.

Paul G. Summers, Attorney General & Reporter; Jennifer L. Bledsoe,
Assistant Attorney General; Mickey Layne, District Attorney General,
for the appellee, State of Tennessee.

Judge: SMITH

First Paragraph:

On March 11, 1998, the petitioner, John T. Heflin, was convicted of
first degree murder and sentenced to life imprisonment.  On appeal
this Court affirmed the judgment of conviction and the sentence.  See,
State v. Heflin, 15 S.W.3d 519 (Tenn. Crim. App. 2001).  The
petitioner subsequently sought post-conviction relief alleging that
his trial attorney was ineffective in failing to object to the
testimony of a state witness.  The trial court concluded that the
failure to object to this witness' testimony did not amount to the
ineffective assistance of counsel.  After a review of the record and
the applicable authorities we conclude that the petitioner received
the effective assistance of counsel at trial and therefore the
judgment of the post-conviction court is AFFIRMED.

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

GARY JOHNSON v. STATE OF TENNESSEE

Court:TCCA

Attorneys:                          

J. Barney Witherington, IV, Covington, Tennessee, for the appellant,
Gary Johnson

Paul G. Summers, Attorney General & Reporter; J. Ross Dyer, Assistant
Attorney General; Elizabeth Rice, District Attorney General; and Kim
Linville, Assistant District Attorney General, for the appellee, State
of Tennessee.

Judge: SMITH

First Paragraph:

The petitioner pled guilty to one count of burglary and one count of
theft of property between $1,000 and $10,000 on August 21, 2001.  He
was sentenced to twelve years for each offense to run concurrently to
be served at sixty percent as a career offender.  The petitioner filed
a petition for post-conviction relief on April 16, 2002.  The trial
court denied the petition on January 13, 2003.  The petitioner appeals
this denial alleging that he was afforded ineffective assistance of
counsel and his plea was not knowingly, intelligently and voluntarily
entered.  We affirm the decision of the trial court.

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

DAMIEN LAMAR OWES v. STATE OF TENNESSEE

Court:TCCA

Attorneys:                          

James P. McNamara, Nashville, Tennessee (on appeal); and Monte D.
Watkins, Nashville, Tennessee (on appeal), for the Appellant, Damien
Lamar Owes.

Paul G. Summers, Attorney General & Reporter; Kim R. Helper, Assistant
Attorney General; Victor S. Johnson, III, District Attorney General;
and Derrick L. Scretchen, Assistant District Attorney General, for the
Appellee, State of Tennessee.

Judge: WITT

First Paragraph:

The petitioner, Damien Lamar Owes, was found guilty by a Davidson
County jury and stands convicted of especially aggravated robbery,
aggravated burglary, and five counts of especially aggravated
kidnapping.  He is serving a 30-year sentence.  Aggrieved by his
convictions, the petitioner pursued a pro se action for
post-conviction relief predicated on the alleged ineffective
assistance of trial and appellate counsel.  Following the appointment
of counsel and a hearing, the petition was denied.  The petitioner
appeals and urges that he is entitled to relief.  We disagree and
affirm the dismissal of the petition.

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

STATE OF TENNESSEE V. CLAUD E. SIMONTON

Court:TCCA

Attorneys:                          

David S. Stockton, Covington, Tennessee, for the appellant, Claud E.
Simonton.

Paul G. Summers, Attorney General & Reporter; Kathy D. Aslinger,
Assistant Attorney General; Elizabeth Rice, District Attorney General;
and Colin Campbell, Assistant District Attorney General, for the
appellee, State of Tennessee.

Judge: SMITH

First Paragraph:

The defendant, Claud E. Simonton, went to trial initially in November
2002, on charges of driving under the influence (DUI) third offense,
and violation of the implied consent law.  The jury was unable to
reach a verdict and a mistrial was declared.  On April 2, 2003, the
defendant was retried and convicted by the jury of third offense DUI. 
The jury assessed a $1,200 fine.  The trial judge found that the
defendant had violated the implied consent law.  The trial court
ordered the defendant to serve his eleven month, twenty-nine day
sentence in jail with release eligibility at 75% service.  On appeal
the defendant raises three issues.  First, he argues that the evidence
is insufficient to support a conviction for DUI.  Second, the
defendant maintains the trial court erred in denying a mistrial after
the arresting officer referred to "seizing" the defendant's vehicle. 
Finally, the defendant asserts the trial court erred in ordering
incarceration for 75% of the sentence imposed.  We have examined each
issue and determined that the judgment of the trial court must be
AFFIRMED.

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

WILLIAM ALEXANDER COCKE STUART v. STATE OF TENNESSEE

Court:TCCA

Attorneys:                          

Theodora A. Pappas, Nashville, Tennessee, for the appellant, William
Alexander Cocke Stuart.

Paul G. Summers, Attorney General and Reporter; Michael Markham,
Assistant Attorney General; Victor S. Johnson, III, District Attorney
General; and Paul DeWitt, Assistant District Attorney General, for the
appellee, State of Tennessee.

Judge: OGLE

First Paragraph:

The petitioner, William Alexander Cocke Stuart, pled guilty in the
Davidson County Criminal Court to theft of property over $10,000 and
received a five-year sentence to be served in split confinement. 
Subsequently, he filed a petition for post-conviction relief, alleging
that he received the ineffective assistance of counsel and that his
guilty plea was not knowing or voluntary.  The post-conviction court,
without holding an evidentiary hearing, dismissed the petition and the
petitioner appealed.  Upon review of the record and the parties'
briefs, we reverse the judgment of the post-conviction court and
remand for further proceedings.

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

LLOYD EARL WILLIAMS v. STATE OF TENNESSEE

Court:TCCA

Attorneys:                          

Lloyd Earl Williams, Tiptonville, Tennessee, pro se.

Paul G. Summers, Attorney General and Reporter; Michael Moore,
Solicitor General; Brent C. Cherry, Assistant Attorney General, for
the Appellee, State of Tennessee.

Judge: HAYES

First Paragraph:

The Appellant, Lloyd Earl Williams, appeals the summary dismissal of
his application for writ of habeas corpus.  On appeal, Williams argues
that: (1) his six drug convictions are void because he was tried and
sentenced in absentia and (2) his class B felony sentences are illegal
because the indictments do not specify that the amount of cocaine sold
or possessed was 0.5 grams or more.  Finding these issues without
merit, the judgment of the trial court is affirmed.

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

STATE OF TENNESSEE v. DAVID CLINTON YORK

Court:TCCA

Attorneys:                          

Michael R. Giaimo, Livingston, Tennessee, for the appellant, David
Clinton York.

Paul G. Summers, Attorney General and Reporter; J. Ross Dyer,
Assistant Attorney General; William Edward Gibson, District Attorney
General; and John A. Moore, Assistant District Attorney General, for
the appellee, State of Tennessee.

Judge: GLENN

First Paragraph:

The defendant, David Clinton York, an inmate in the Clay County Jail,
pled guilty to felony escape and was sentenced as a Range III,
persistent offender to five years in the Department of Correction.  On
appeal, he argues that the trial court erred in determining that he
was a persistent offender, in denying alternative sentencing, and in
applying the enhancement and mitigating factors.  Following our
review, we affirm the judgment of the trial court.

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

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