Opinion FlashOctober 5, 2004Volume 10 — Number 192 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 GARY MONTGOMERY v. SONJA K. SCHEDIN Court:TCA Attorneys: Wendell K. Hall, Knoxville, Tennessee, for the Appellant Gary Montgomery. David R. Dunkirk, Oak Ridge, Tennessee, for the Appellee Sonja K. Schedin. Judge: SWINEY First Paragraph: Gary Robert Montgomery ("Plaintiff") and Sonja K. Schedin ("Defendant") were engaged to be married. After the engagement ended, Plaintiff filed a Writ of Possession in the General Sessions Court claiming Defendant refused to allow him to retrieve his personal property. At issue in the General Sessions Court was who was entitled to a boat and trailer, an ATV, an engagement ring, a trailer, and a 1998 Chevy pick-up truck. Plaintiff claimed Defendant bought the ATV for him as a gift, and that she also gave him $13,500 as a gift to buy the truck. After the General Sessions Court entered its judgment concluding, among other things, that the money was loaned to Plaintiff and was not a gift, Plaintiff appealed to the Circuit Court. The Circuit Court likewise concluded the money was loaned to Plaintiff and was not a gift. Plaintiff appeals. We modify the judgment of the Circuit Court and affirm the judgment as modified. http://www.tba.org/tba_files/TCA/montgomerygary.wpd STATE OF TENNESSEE v. GREGORY FAIRBETTER Court:TCCA Attorneys: Paul G. Summers, Attorney General & Reporter; Helena W. Yarbrough, Assistant Attorney General; and Kristen Shea, Assistant District Attorney General, for the appellant, State of Tennessee. Richard McGee, Nashville, Tennessee, for the appellee, Gregory Fairbetter. Judge: WADE First Paragraph: The defendant, Gregory Fairbetter, was charged with driving under the influence and violating the implied consent law. The defendant filed a motion to dismiss, arguing that because the videotape of his arrest had been destroyed by the state, he could not receive a fair trial. The trial court agreed and dismissed the driving under the influence charge. In this appeal, the state asserts that the trial court erred. The judgment of the trial court is reversed and the cause is remanded. http://www.tba.org/tba_files/TCCA/fairbettergregory.wpd STATE OF TENNESSEE v. ZINA BETH FINNELL Court:TCCA Attorneys: Dwight Scott, Nashville, Tennessee, for the appellant, Zina Beth Finnell. Paul G. Summers, Attorney General and Reporter; Richard H. Dunavant, Assistant Attorney General; Victor S. Johnson, District Attorney General; and Dan Hamm, Assistant District Attorney General, for the appellee, State of Tennessee. Judge: WELLES First Paragraph: This is a direct appeal from a conviction of facilitation to commit felony murder. The Defendant, Zina Beth Finnell, was indicted for felony murder by a Davidson County Grand Jury in connection with the murder of her step-father during the commission of an aggravated burglary. A jury convicted the Defendant of facilitation to commit felony murder, and the trial court sentenced her to 21 years. On appeal, the Defendant argues two issues: (1) the trial court erred in denying the Defendant's motion to suppress her statement to the police, and (2) there was insufficient evidence to find the Defendant guilty of facilitation to commit felony murder. We affirm the judgment of the trial court. http://www.tba.org/tba_files/TCCA/finnellzb.wpd STATE OF TENNESSEE v. RANDAL TODD KEMPER Court:TCCA Attorneys: John S. Colley, III, Columbia, Tennessee, for the appellant, Randal Todd Kemper. Paul G. Summers, Attorney General & Reporter; Elizabeth B. Marney, Assistant Attorney General; and Jim White, Assistant District Attorney General, for the appellee, State of Tennessee. Judge: WADE First Paragraph: The defendant, Randal Todd Kemper, was convicted of driving under the influence. The trial court imposed a sentence of eleven months, twenty-nine days, with all but forty days suspended. In this appeal of right, the defendant complains that the trial court erroneously admitted the results of his blood alcohol test because the accompanying certificate bore a rubber-stamped signature. The judgment of the trial court is affirmed. http://www.tba.org/tba_files/TCCA/kemperrandal.wpd STEVE EDWARD LEACH v. STATE OF TENNESSEE Court:TCCA Attorneys: Frank Lannom (on appeal) and Zach Griffith (at trial), Lebanon, Tennessee, for the appellant, Steve Edward Leach. Paul G. Summers, Attorney General & Reporter; Kim R. Helper, Assistant Attorney General; and Tom P. Thompson, District Attorney General, for the appellee, State of Tennessee. Judge: WADE First Paragraph: The petitioner, Steve Edward Leach, entered pleas of guilt to first degree murder and rape of a child. The trial court imposed consecutive sentences of life imprisonment without the possibility of parole and 25 years, respectively. There was no direct appeal of the conviction or sentence. Later, the petitioner was denied his application for post-conviction relief. This court affirmed. Steven Edward Leach v. State, No. M1999-00774-CCA-R3-PC (Tenn. Crim. App., at Nashville, Feb. 16, 2001). Counsel for the petitioner failed to make a timely application for permission to appeal to the supreme court and our supreme court denied a request to waive the 60-day period of limitation as prescribed by Tennessee Rule of Appellate Procedure 11. By motion, the petitioner then applied for relief in the post-conviction court. The post-conviction court found that the petitioner was not at fault for failing to timely file a Rule 11 application but denied relief based upon lack of jurisdiction. In this appeal, the petitioner has asked this court to vacate and re-enter its judgment filed February 16, 2001, in Cause No. M1999-00774-CCA-R3-PC. Because our supreme court has ruled under similar circumstances that the petitioner was not entitled to the effective assistance of counsel and was not denied due process of law, the judgment is affirmed. http://www.tba.org/tba_files/TCCA/leachse.wpd STATE OF TENNESSEE v. LARRY F. LITTON Court:TCCA Attorneys: David E. Crockett and Lisa D. Rice, Elizabethton, Tennessee, for the appellant, Larry F. Litton. Paul G. Summers, Attorney General & Reporter; Brent C. Cherry, Assistant Attorney General; Greeley Wells, District Attorney General; and Teresa Murray Smith, Assistant District Attorney General, for the appellee, State of Tennessee. Judge: SMITH First Paragraph: The appellant, Larry F. Litton, was indicted on charges of rape in violation of Tennessee Code Annotated section 39-13-503. A jury found the appellant guilty of the lesser-included offense of sexual battery and recommended a $3,000 fine. The appellant was sentenced to a one-year sentence as a Range I Standard Offender, but the trial court ordered the appellant to serve two years on probation in lieu of incarceration. The trial court also imposed the $3,000 fine recommended by the jury. After the denial of a motion for new trial, this appeal ensued. The appellant challenges: (1) the trial court's decision to allow the testimony of Dr. Scott Levine in which he recounted a conversation with the victim that occurred several weeks after the incident; (2) the trial court's instruction to the jury that a tape-recorded conversation between the victim and the appellant was an "alleged admission;" and (3) the sufficiency of the evidence. For the following reasons, we affirm the decision of the trial court. http://www.tba.org/tba_files/TCCA/littonlarryf.wpd STATE OF TENNESSEE v. RANDY DAVID MILES Court:TCCA Attorneys: Philip A. Condra, District Public Defender, and Francis W. Pryor, Jr., Assistant Public Defender, for the appellant, Randy David Miles. Paul G. Summers, Attorney General and Reporter; Elizabeth B. Marney, Assistant Attorney General; James Michael Taylor, District Attorney General; and Steven M. Blount, Assistant District Attorney General, for the appellee, State of Tennessee. Judge: GLENN First Paragraph: The defendant, Randy David Miles, was convicted by a Franklin County Circuit Court jury of two counts of aggravated rape, a Class A felony, and aggravated kidnapping, a Class B felony, for his participation with a codefendant, Gary Allen Phillips, Jr., in grabbing a woman from the street in Northern Alabama and transporting her by car to the defendant's grandmother's abandoned farmhouse in Huntland, Tennessee, where the defendant raped her while his codefendant watched. The defendant was sentenced by the trial court as a Range I, standard offender to concurrent terms of eleven years, nine months for the aggravated kidnapping conviction and twenty-four years, six months for each of the aggravated rape convictions, for an effective sentence of twenty-four years, six months. His Tennessee sentences were ordered to be served concurrently to his Alabama sentence for kidnapping. On appeal, he challenges the sufficiency of the evidence, the State's failure to make a proper election of offenses, and the sentences imposed by the trial court. Following our review, we conclude that one of the aggravated rape convictions is invalid because the facts upon which the State relied to support the separate convictions constitute only one offense. Accordingly, we reverse one of the defendant's convictions for aggravated rape. We affirm the judgments as to the other aggravated rape conviction and the aggravated kidnapping conviction but modify the sentences to twenty-two years and nine years, respectively. http://www.tba.org/tba_files/TCCA/milesrandyd.wpd Change in Use or Withdrawal of Donor's Contribution to Chairs of Excellence Endowment Fund Date: October 1, 2004 Opinion Number: 04-150 http://www.tba.org/tba_files/AG/2004/op150.pdf PLEASE FORWARD THIS E-MAIL! GET A FULL-TEXT COPY OF AN OPINION! JOIN THE TENNESSEE BAR ASSOCIATION! SUBSCRIBE TO OPINION FLASH! 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