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Today's Opinions: December 9, 2004
Volume 10 — Number 236
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.
00 New Opinion(s) from the Tennessee Supreme Court
01 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
11 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

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 or need to obtain a password, you can look it up on-line at http://www.tba.org/getpassword.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. • Do a key word search in the Search Link area of TBALink. This option will allow you to view and save a plain-text version of the opinion. • Browse the Opinion List area of TBALink. This option will allow you to download the original version of the opinion.

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


TIMOTHY L. HARRISON v.  PETERBILT MOTORS COMPANY, ET AL.

Court:TSC - Workers Comp Panel

Attorneys:                          

William L. Underhill and Michael L. Underhill, Madison, Tennessee, for
the appellant , Timothy L. Harrison.

Terry L. Hill and Stacey Billingsley Cason, Nashville, Tennessee, for
the appellee, Peterbilt Motors Company.

Judge: WEATHERFORD

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. _ 50-6-225(e)(3) for hearing and
 reporting to the Supreme Court of findings of fact and conclusions of
 law. In this appeal, the employee was on lay-off status at the time
 of the initial award of 50% vocational disability (2 _ times the
 medical impairment rating).  The employee filed a complaint for
 reconsideration shortly after he participated in a walk-through at
 the plant and after which the employer found that there were no jobs
 available within the employee's medical restrictions.  The employee
 contends that the trial court erred in dismissing his complaint for
 reconsideration of an original award which he contends was granted
 under Tenn. Code Ann. _ 50-6-241(a)(1) and that, because his employer
 retains him on lay-off status but has not returned him to work, he is
 now eligible for reconsideration under Tenn. Code Ann. _
 50-6-241(a)(2). The trial court dismissed the complaint finding the
 facts not sufficient to institute a new cause of action under the
 statute.  The panel concluded that the judgment of the trial court
 should be affirmed.

http://www.tba.org/tba_files/TSC_WCP/harrisontimothyl.wpd

JOAN B. HARDCASTLE, ET AL. v. FRANK HARRIS

Court:TCA

Attorneys:                          

Mathew R. Zenner, Nashville, Tennessee, for the appellant, Frank
Harris.

David B. Lyons, Nashville, Tennessee, for the appellees, Joan B.
Hardcastle, Glen Hardcastle, Joseph Pope, and Charles Provance.

Judge: KOCH

First Paragraph:

This appeal concerns a pyramid sales scheme involving the sale of
unregistered investment contracts.  After discovering that their
contracts were worthless, four purchasers filed separate actions
against the person who sold them the contracts.  These cases were
consolidated for trial in the Chancery Court for Davidson County. 
Following a bench trial, the trial court determined that the seller
had breached his personal guarantee contract with two of the buyers
and had violated the Tennessee Securities Act of 1980 by selling
unregistered investment contracts to all the purchasers.  Accordingly,
the court awarded the four purchasers judgments totaling $99,450.00,
as well as $44,979.50 for attorney's fees and legal expenses.  The
seller asserts on this appeal that the Tennessee Securities Act claims
were filed after the statute of limitations had expired and that the
doctrines of waiver and estoppel prevent the purchasers from asserting
these claims.  In addition, he insists that the court erred by
permitting the purchasers to amend their complaints one week before
trial to add their Tennessee Securities Act claims.  He also takes
issue with the trial court's decision to award the purchasers their
attorney's fees.  We affirm the judgments.

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

STATE OF TENNESSEE v. JON GLEN AKINS

Court:TCCA

Attorneys:                          

Joseph P. Atnip, Dresden, Tennessee, for the appellant, Jon Glen
Akins.

Paul G. Summers, Attorney General and Reporter; David H. Findley,
Assistant Attorney General; Thomas A. Thomas, District Attorney
General; and Kevin McAlpin and James T. Cannon, Assistant District
Attorneys General, for the appellee, State of Tennessee.

Judge: WEDEMEYER

First Paragraph:

The Defendant, Jon Glen Akins, pled guilty to one count of theft of
property valued between $10,000.00 and $60,000.00, a class C felony. 
The trial court sentenced the Defendant to three years, ordering that
the Defendant serve 90 days in jail, followed by probation.  The
Defendant appeals, contending that the trial court erred by not
granting him full probation.  Finding no error, we affirm the judgment
of the trial court.

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

STATE OF TENNESSEE v. JOHNNY ARWOOD

Court:TCCA

Attorneys:                          

Edward C. Miller, District Public Defender, for the appellant, Johnny
Arwood.

Paul G. Summers, Attorney General and Reporter; Michelle Chapman
McIntire, Assistant Attorney General; Al C. Schmutzer, Jr., District
Attorney General; and Charles L. Murphy, Assistant District Attorney
General, for the appellee, State of Tennessee.

Judge: TIPTON

First Paragraph:

After the Jefferson County Circuit Court revoked his probation, the
defendant, Johnny Arwood, agreed to consecutive sentences in exchange
for being placed back on probation.  In this appeal, the defendant
contends that the trial court erred by imposing consecutive sentences
without first conducting a sentencing hearing or ordering a
presentence report.  We vacate the trial court's judgments and remand
the case for proceedings consistent with this opinion.

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

TIMOTHY A. BAXTER v. TONY PARKER, WARDEN

Court:TCCA

Attorneys:                          

Timothy A. Baxter, pro se.

Paul G. Summers, Attorney General & Reporter; Michael Markham,
Assistant Attorney General, for the appellee, the State of Tennessee.

Judge: WILLIAMS

First Paragraph:

The Petitioner, Timothy A. Baxter, appeals the trial court's denial of
his petition for habeas corpus relief.  The State has filed a motion
requesting that this Court affirm the trial court's denial of relief
pursuant to Rule 20, Rules of the Court of Criminal Appeals.  Because
Petitioner has failed to allege a ground for relief which would render
the judgment void, we grant the State's motion and affirm the judgment
of the lower court.

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

DAVID WAYNE BRITT  v. RICKY BELL, WARDEN

Court:TCCA

Attorneys:                          

David Wayne Britt, pro se, Nashville, Tennessee.

Paul G. Summers, Attorney General and Reporter; and Kathy D. Aslinger,
Assistant Attorney General, for the appellee, State of Tennessee.

Judge: WEDEMEYER

First Paragraph:

In 1990, the Defendant, David Wayne Britt, pled guilty to: (1) first
degree murder; (2) conspiracy to commit first degree murder; and (3)
possession of a deadly weapon with the intent to employ it in the
commission of an offense.  In accordance with the plea agreement, the
Defendant was sentenced to life imprisonment for the first degree
murder conviction, three years for the conspiracy to commit first
degree murder conviction, and one year for the possession of a deadly
weapon conviction.  The Defendant filed a petition for post-conviction
relief, which the trial court denied and this Court affirmed that
judgment.  The Defendant filed a petition for a writ of habeas corpus.
 The Morgan County Criminal Court denied relief on the first degree
murder and possession of a deadly weapon convictions, but it granted
relief on the conspiracy to commit first degree murder conviction
holding that the three year sentence was illegal.  The Defendant
initially appealed the Morgan County Criminal Court's judgment, and
then dismissed that appeal.  Subsequently, the Defendant filed a
motion in the Hardeman County Circuit Court seeking to withdraw his
guilty pleas, which was denied. On appeal, the Defendant contends that
because one of his sentences is illegal, his guilty pleas were
constitutionally defective.  The Defendant contends that he should,
therefore, be able to withdraw his guilty pleas to all three offenses.
 After reviewing the record and relevant authorities, we affirm the
judgment of the trial court.

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

THADDEUS D. DANIEL v. DAVID MILLS, WARDEN

Court:TCCA

Attorneys:                          

Thaddeus D. Daniel, pro se.

Paul G. Summers, Attorney General & Reporter; David Edward Coenen,
Assistant Attorney General, for the appellee, the State of Tennessee.

Judge: HAYES

First Paragraph:

The Petitioner, Thaddeus D. Daniel, appeals the trial court's denial
of his petition for habeas corpus relief.  The State has filed a
motion requesting that this Court affirm the trial court's denial of
relief pursuant to Rule 20, Rules of the Court of Criminal Appeals. 
Because Petitioner has failed to allege a ground for relief which
would render the judgment void, we grant the State's motion and affirm
the judgment of the lower court.

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

STATE OF TENNESSEE v. LARRY WADE GIBSON

Court:TCCA

Attorneys:                          

Walter Johnson, Assistant Public Defender, Harriman, Tennessee, for
the appellant, Larry Wade Gibson.

Paul G. Summers, Attorney General and Reporter; Renee W. Turner,
Assistant Attorney General; James Scott McCluen, District Attorney
General; and Frank Harvey, Assistant District Attorney General, for
the appellee, State of Tennessee.

Judge: WELLES

First Paragraph:

This is an appeal as of right pursuant to Rule 3 of the Tennessee
Rules of Appellate Procedure.  The Defendant, Larry Wade Gibson, was
found guilty by jury verdict of one count of failure to report to the
Tennessee Bureau of Investigation (TBI) sexual offender registry, a
Class A misdemeanor.  The trial court sentenced the Defendant to
eleven months and twenty-nine days, 180 days of which is to be served
in confinement.  The Defendant's sole issue on appeal is whether the
statute imposing criminal penalties for noncompliance with Tennessee's
sexual offender registration act as applied to him constituted an ex
post facto application of the law in violation of both the federal and
state constitutions.    We affirm the judgment of the trial court.

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

RAYMOND ROGER JONES  v.  STATE OF TENNESSEE

Court:TCCA

Attorneys:                          

Janie L. Lindamood, Johnson City, Tennessee, for the appellant,
Raymond Roger Jones.

Paul G. Summers, Attorney General and Reporter; John H. Bledsoe,
Assistant Attorney General; Joe C. Crumley, Jr., District Attorney
General; and Steve Finney, Assistant District Attorney General, for
the appellee, the State of Tennessee.

Judge: WOODALL

First Paragraph:

Petitioner, Raymond Roger Jones, appeals the Washington County
Criminal Court's dismissal of his pro se combined motion to reopen his
post-conviction petition, petition for writ of error coram nobis, and
petition for DNA analysis. Petitioner was convicted by a jury in the
Knox County Criminal Court of two counts of first degree murder.  He
received consecutive life sentences.  This Court affirmed Defendant's
convictions and sentences on direct appeal.  See State v. Jones, 735
S.W.2d 803 (Tenn. Crim. App. 1987).  Petitioner filed a petition for
post-conviction relief in the Washington County Criminal Court.  The
trial court dismissed the petition, and this Court affirmed.  See
Raymond Roger Jones v. State, No. 03C01-9102-CR-00068, 1991 Tenn.
Crim. App. LEXIS 584, (Tenn. Crim. App. at Knoxville, July 26, 1991),
perm. to app. denied (Tenn. 1992).  On June 22, 2001, Petitioner filed
a pro se motion to reopen his post-conviction petition, alleging that
the United States Supreme Court's decision in Apprendi v. New Jersey,
530 U.S. 466, 120 S. Ct. 2348, 147 L. Ed. 2d 435 (2000), established a
new rule of constitutional law requiring retroactive application to
his case.  Petitioner subsequently filed a supplemental request for
DNA analysis.  The trial court dismissed the motion and denied
Petitioner's request for DNA Analysis.  Petitioner appeals.  After
reviewing the record, we affirm the judgments of the trial court.

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

STATE OF TENNESSEE v. WILLIAM GLENN ROGERS
Petition to Rehear

Court:TCCA

Judge: TIPTON

First Paragraph:

The defendant has filed a petition to rehear regarding our review and
assessment of the trial court's precluding the defendant from
cross-examining the victim's brother regarding his purported sexual
activity with the victim.  The defendant essentially disagrees with
our comment that the factual premise to the defendant's argument,
namely, that the brother had sex with the victim, is largely
unsubstantiated by the record.  He also asserts that we should order
the record supplemented with the psychological and juvenile court
records for the brother if we deem them necessary for proper
resolution of the issue.  Although not addressing the defendant's
claim that the record contains appropriate evidence, the state
responds that the circumstances do not justify our allowing
supplementation of the record at this time.

In the opinion, we stated the following:

At this point, we must note that the factual premise to the
defendant's argument is largely unsubstantiated by the record. 
Defense counsel told the court that records existed showing that
Jeremy Beard told others that his father taught him to have sex with
the victim.  Reference was particularly made to one record apparently
indicating that he had told his mother, who, in turn, had told his
counselor.  However, the records are not in the record on appeal. 
Also, as noted, Jeremy Beard was questioned about his telling others
about such offense, but he said he did not remember doing so. 
However, he was not asked if he, in fact, ever had sex with the victim
and, if so, when.  Moreover, his mother was never asked if her son had
told her that he had had sex with the victim.  Thus, the defendant's
proffer of evidence and the record before us show almost no support
for the defendant's claims about Jeremy Beard's past conduct.

The defendant claims that the victim's mother was asked if her son had
told her that his natural father had taught him how to have sex with
the victim, to which she replied, "Yes, he - Jeremy has told me that
one time."  The defendant also points out that defense counsel and the
prosecutor referred to a FHC document which contained a reference to
Jeremy Beard having been taught to have sex with the victim by his
biological father, who was supposed to have watched while it occurred.

Although the record reflects that counsel actually asked the victim's
mother if she had ever told any therapist or social worker that her
son claimed that his father had taught him how to have sex with his
sister, we acknowledge that her response reasonably conveys the fact
of interest to the defendant-that her son told her one time and that
she relayed that to a person treating him.  We still believe, though,
that the relevance of the evidence was quite tenuous and that no
prejudice resulted from its exclusion.

As for counsel's references to a FHC document which is not in the
record, we note that statements of counsel do not usually constitute
evidence.  See State v. Electroplating, Inc., 990 S.W.2d 211, 224
(Tenn. Crim. App. 1998).  Relative to the defendant's request to
supplement the record, we are constrained by previous opinions that
conclude that "supplementation of the record does not constitute a
meritorious ground for a rehearing pursuant to Rule 39(a), Tenn. R.
App. P."  State v. Roberts, 755 S.W.2d 833, 838 (Tenn. Crim. App.
1988); see also State v. Locke, 771 S.W.2d 132, 140 (Tenn. Crim. App.
1988).  In any event, our view of the tenuous relevance of the
evidence the defendant claims exists leads us to believe that
supplementing the record is not merited.

Wherefore, in consideration of the foregoing, it is hereby ORDERED
that the petition to rehear is DENIED.

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

STATE OF TENNESSEE v. GENE SHELTON RUCKER, JR.

Court:TCCA

Attorneys:                          

Melanie R. Snipes, Chattanooga, Tennessee, for the Appellant, Gene
Shelton Rucker, Jr.

Paul G. Summers, Attorney General & Reporter; Braden H. Boucek,
Assistant Attorney General; William H. Cox, III, District Attorney
General; and Rodney C. Strong, Assistant District Attorney General,
for the Appellee, State of Tennessee.

Judge: WITT

First Paragraph:

A Hamilton County Grand Jury indicted the defendant, Gene Shelton
Rucker, Jr., for felony murder and aggravated arson in connection with
a fire that took the life of an individual who resided in the
apartment structure that was burned.  Following a jury trial, the
defendant was convicted of the lesser-included offense of criminally
negligent homicide and aggravated arson, as charged.  The defendant
now appeals his convictions and sentence.  Specifically, the defendant
argues (1) that the trial court erred by instructing the jury on
criminal responsibility for the conduct of another; (2) that setting
fire to personal property is a lesser-included offense of aggravated
arson and should have been included in the charge to the jury; (3)
that the instruction on the knowing mens rea element of aggravated
arson was incorrect; (4) that the state violated the defendant's due
process rights by advancing impermissibly inconsistent positions
relative to the defendant and an indicted co- defendant; (5) that the
evidence was insufficient to support his convictions; and (6) that his
sentence should not have been enhanced on the basis of prior
convictions that were not proven by certified copies of the underlying
judgments.  After a thorough review of the record, we affirm the
defendant's convictions and sentence.

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

MICHAEL G. UPSHAW v. STATE OF TENNESSEE

Court:TCCA

Attorneys:                          

Joshua B. Spickler, Memphis, Tennessee, for the Appellant Michael G.
Upshaw.

Paul G. Summers, Attorney General and Reporter; Michael Moore,
Solicitor General; J. Ross Dyer, Assistant Attorney General; William
L. Gibbons, District Attorney General; Gail Vermaas and Michelle
Kimbril Parks, Assistant District Attorneys General, for the Appellee,
State of Tennessee.

Judge: HAYES

First Paragraph:

The Appellant, Michael G. Upshaw, appeals the judgment of the Shelby
County Criminal Court denying his petition for post-conviction relief.
 On appeal, Upshaw argues that he was denied the effective assistance
of counsel at trial.  After review of the record, we affirm the denial
of post- conviction relief.

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

STATE OF TENNESSEE v. RONALD YATES

Court:TCCA

Attorneys:                          

William D. Massey and Lorna S. McClusky, Memphis, Tennessee (at
trial), and Gerald D. Skahan, Memphis, Tennessee (on appeal), for the
appellant, Ronald Yates.

Paul G. Summers, Attorney General & Reporter; Michael Markham,
Assistant Attorney General; and Patience Missy Branham and Eric
Christensen, Assistant District Attorneys General, for the appellee,
State of Tennessee.

Judge: WADE

First Paragraph:

The defendant, Ronald Yates, was convicted of first degree
premeditated murder and attempted first degree murder.  The trial
court imposed consecutive sentences of life and twenty-three years,
respectively.  In this appeal, the defendant asserts (1) that the
evidence is insufficient to support his convictions; (2) that the
trial court erred by refusing to grant a mistrial based upon the
state's opening statement; (3) that the trial court erred in the
admission of certain of the evidence; (4) that the trial court erred
by permitting the introduction of a postmortem photograph of the
murder victim; (5) that the trial court erred by ordering his trial
counsel to alter the form and manner of his questions; (6) that the
trial court erred by denying his request for a mistrial based upon the
state's violation of a discovery order; (7) that the trial court erred
by denying his motion for judgment of acquittal because the state
failed to prove venue; (8) that the trial court erred by refusing to
grant a mistrial based upon ineffective assistance of counsel; and (9)
that the sentence is excessive.  The 23 year sentence for attempted
first degree murder is modified to 20 years; otherwise, the judgments
of the trial court are affirmed.

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

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