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TODAY'S OPINIONS: Monday, September 12, 2005
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 - TN Supreme Court
00 - TN Worker's Comp Appeals
01 - TN Supreme Court - Rules
02 - TN Court of Appeals
12 - TN Court of Criminal Appeals
00 - TN Attorney General Opinions
00 - Judicial Ethics Opinions
00 - Formal Ethics Opinions - BPR

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Here's how you can obtain full-text version. We recommend you download the Opinions to your computer and then open them from there. Click the URL at end of each Opinion paragraph below. This should give you the option to download the original document. If not, you may need to right-click on the URL to get the option to save the file to your computer. 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
SUPREME COURT OF TENNESSEE SUPREME COURT DISCRETIONARY APPEALS

Court: TSC-Rules

http://www.tba.org/tba_files/TSC_Rules/2005/certlist91205.pdf

SONYA RENEE VADEN AUSLEY v. DEMPSEY RENEA AUSLEY, JR.

Court: TCA

Attorneys:

Marc A. Walwyn, Madison, Tennessee, for the appellant, Dempsey Renea Ausley, Jr.

Louis W. Oliver, III, Hendersonville, Tennessee, for the appellee, Sonya Renee Vaden Ausley.

Judge: FARMER

This appeal involves an alimony award granted by the trial court to Plaintiff Sonya Ausley.While the divorce in this case was pending, the trial court ordered Defendant to pay $17,000 to the Clerk and Master of the court after Defendant willfully refused to pay temporary support andfurther disposed of a $34,000 social security disability settlement in violation of court order. The trial court later granted Plaintiff $5775 from the funds as temporary support. In the final divorcedecree, the trial court awarded Plaintiff the remaining $11,225 balance as lump sum transitional alimony. Defendant appeals, arguing that 1) the trial court erred in failing to classifyDefendantās social security benefits as marital or separate prior to ordering its division, 2) the trial courtās order that Defendant pay half of his social security benefits into the Clerk andMaster constituted in improper presumption that such benefits were marital property, and 3) that Defendantās social security benefits were exempt from garnishment under Tenn. Code Ann. ¤26-2-111. We affirm.

http://www.tba.org/tba_files/TCA/2005/ausleys91205.pdf


DAVID E. CONN v. OKSOON CONN

Court: TCA

Attorneys:

Thomas F. Bloom of Nashville, Tennessee, for Appellant, David E. Conn

Michael D. Cox of Columbia, Tennessee, for Appellee, Oksoon Conn

Judge: CRAWFORD

In this divorce case, Husband/Appellant appeals and raises issues involving the divisionof certain marital property. Finding that the trial court did not abuse its discretion in making its division of the marital property, we affirm.

http://www.tba.org/tba_files/TCA/2005/connd91205.pdf


DERICK BAILEY v. STATE OF TENNESSEE

Court: TCCA

Attorneys:

Charles E. Walker, Nashville, Tennessee, for the Appellant, Derick Bailey.

Paul G. Summers, Attorney General & Reporter; Elizabeth B. Marney, Assistant AttorneyGeneral; Victor S. Johnson, III, District Attorney General; and Dan Hamm, Assistant District Attorney General, for the Appellee, State of Tennessee.

Judge: WITT

The petitioner, Derick Bailey, appeals from the Davidson County Criminal Courtās denial ofpost-conviction relief. Presenting issues of trial error and the ineffective assistance of counsel, the petitioner appeals. We affirm the post-conviction courtās order.

http://www.tba.org/tba_files/TCCA/2005/baileyd91205.pdf


STATE OF TENNESSEE v. KARL BLAKE

Court: TCCA

Attorneys:

Jerry E. Farmer, Murfreesboro, Tennessee, for the Appellant, Karl Blake.

Paul G. Summers, Attorney General and Reporter; Renee W. Turner, Assistant AttorneyGeneral; William C. Whitesell, Jr., District Attorney General; and Laural Nutt, Assistant District Attorney General, for the Appellee, State of Tennessee.

Judge: HAYES

The Appellant, Karl Blake, was convicted by a Rutherford County jury of three counts of childrape and one count of aggravated sexual battery, resulting in an effective forty-year sentence. On appeal, Blake raises the following issues for our review: (1) whether the trial court erred inexcluding a statement made by the victim at an in camera hearing; (2) whether the trial court should have granted a mistrial based on juror misconduct; (3) whether the trial court should havegranted a new trial based on newly discovered evidence; and (4) whether his sentence violates Blakely v. Washington. After review of the record, we affirm.

http://www.tba.org/tba_files/TCCA/2005/blakek91205.pdf


DONAVEN BROWN v. WAYNE BRANDON, WARDEN

Court: TCCA

Attorneys:

Donaven Brown, Pro Se, Mountain City, Tennessee.

Paul G. Summers, Attorney General & Reporter; Elizabeth Bingham Marney, Assistant AttorneyGeneral, for the appellee, State of Tennessee.

Judge: SMITH

This matter is before the Court upon the Stateās motion to affirm the judgment of the trial courtby memorandum opinion pursuant to Rule 20 of the Rules of the Court of Criminal Appeals. The petitioner has appealed the trial courtās order summarily dismissing the petition for writ ofhabeas corpus. Upon a review of the record in this case, we are persuaded that the trial court was correct in summarily dismissing the habeas corpus petition and that this case meets the criteriafor affirmance pursuant to Rule 20 of the Rules of the Court of Criminal Appeals. Accordingly, the Stateās motion is granted and the judgment of the trial court is affirmed.

http://www.tba.org/tba_files/TCCA/2005/brownd91205.pdf


STATE OF TENNESSEE v. RODNEY J. CAMPBELL

Court: TCCA

Attorneys:

Paul Julius Walwyn, Madison, Tennessee, for the appellant, Rodney J. Campbell.

Paul G. Summers, Attorney General and Reporter; Jennifer L. Bledsoe, Assistant AttorneyGeneral; Victor S. Johnson, III, District Attorney General; Jim Todd, Harold Donnelly, and Brett Gunn, Assistant District Attorneys General, for the appellee, State of Tennessee.

Judge: MCLIN

The defendant, Rodney J. Campbell, was indicted for premeditated first degree murder, felonymurder, and especially aggravated kidnapping. He was convicted by jury of kidnapping and two counts of second degree murder. As a result of these convictions, he was sentenced to a totaleffective sentence of thirty-one years in the Department of Correction. On appeal, the defendant raises four issues for our review: (1) whether the trial court erred in denying his motion forjudgment of acquittal; (2) whether the evidence is insufficient to support his convictions; (3) whether the trial court properly instructed the jury; and (4) whether the trial court erred inimposing an excessive sentence. Upon review, we affirm the judgments of the trial court.

http://www.tba.org/tba_files/TCCA/2005/campbellr91205.pdf


ANDREW CHRISTIAN v. STATE OF TENNESSEE

Court: TCCA

Attorneys:

Matthew Mayo, Nashville, Tennessee, for the appellant, Andrew Christian.

Paul G. Summers, Attorney General and Reporter; Preston Shipp, Assistant Attorney General;Victor S. (Torry) Johnson, III, District Attorney General; and Michael Rohling, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge: WILLIAMS

The petitioner appeals the denial of his petition for post-conviction relief in which he assertedvarious instances of ineffective assistance of counsel. Upon review, we conclude that the evidence does not preponderate against the findings of the post-conviction court. Therefore, weaffirm.

http://www.tba.org/tba_files/TCCA/2005/christiana91205.pdf


WAYFORD DEMONBREUN, JR. v. RICKY BELL, WARDEN

Court: TCCA

Attorneys:

Wayford Demonbreun, Jr., pro se, Nashville, Tennessee.

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

Judge: WEDEMEYER

The Petitioner, Wayford Demonbreun, Jr., appeals from the dismissal of his petition for the writof habeas corpus. The State has filed a motion requesting that the Court affirm the trial courtās denial of relief pursuant to Rule 20, Rules of the Court of Criminal Appeals. We find the Stateāsmotion has merit. Accordingly, the motion is granted and the appeal is affirmed pursuant to Rule 20, Rules of the Court of Criminal Appeals.

http://www.tba.org/tba_files/TCCA/2005/demonbreunw91205.pdf


STATE OF TENNESSEE v. GREGORY T. HARWOOD

Court: TCCA

Attorneys:

Jodie A. Bell and Wendy S. Tucker, Nashville, Tennessee, for the appellant, Gregory T.Harwood.

Paul G. Summers, Attorney General and Reporter; Elizabeth B. Marney, Senior Counsel; VictorS. (Torry) Johnson, III, District Attorney General; and Brian K. Holmgren, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge: WILLIAMS

This interlocutory appeal presents a challenge to the constitutionality of Tennesseeās childexploitation statute. Upon thorough review, we conclude that: (1) the term ćknowingly possessä provides fair warning of the conduct prohibited by the statute and does not allow for theprosecution of individuals who innocently possess child pornography; (2) the term ćmaterial,ä as used in the statute, does not encompass protected speech such as virtual pornography or imagesthat only ćappearä to depict minors; and (3) the permissive inference contained in subsection (b) of the subject statute neither broadens the scope of the statute nor shifts the burden of proof but,rather, allows the jury to deem circumstantial evidence sufficient to meet the Stateās burden of proof beyond a reasonable doubt. For these reasons, we hold that Tennessee Code Annotatedsection 39-17-1003 is constitutional on its face and affirm the trial courtās denial of the motion to dismiss.

http://www.tba.org/tba_files/TCCA/2005/harwoodg91205.pdf


STATE OF TENNESSEE v. TIMOTHY JOHNSON

Court: TCCA

Attorneys:

Timothy Johnson, Appellant, Pro Se.

Paul G. Summers, Attorney General & Reporter; Blind Akrawi, Assistant Attorney General;Victor S. Johnson, III, District Attorney General; and Bret Gunn, Assistant District Attorney General, for the Appellee, State of Tennessee.

Judge: WITT

The petitioner, Timothy L. Johnson, appeals from the Davidson County Criminal Courtāsdismissal of his petition for habeas corpus relief. Because we agree with the criminal courtās action, we affirm.

http://www.tba.org/tba_files/TCCA/2005/johnsont91205.pdf


STATE OF TENNESSEE v. BRIAN CARL LEV

Court: TCCA

Attorneys:

Mark E. Stephens, District Public Defender; and John Halstead, Assistant Public Defender,Knoxville, Tennessee, for the Appellant, Brian Carl Lev.

Paul G. Summers, Attorney General and Reporter; Blind Akrawi, Assistant Attorney General;Randall E. Nichols, District Attorney General; and Takisha Fitzgerald, Assistant District Attorney General, for the Appellee, State of Tennessee.

Judge: HAYES

The Appellant, Brian Carl Lev, appeals the denial of judicial diversion following his guilty pleasto two counts of statutory rape. After review, we reverse the sentencing decision of the trial court and remand for deferment of the proceedings as provided by Tennessee Code Annotatedsection 40-35-313 (2003).

http://www.tba.org/tba_files/TCCA/2005/levb91205.pdf


STATE OF TENNESSEE v. BRENDA KAY MAYHEW

Court: TCCA

Attorneys:

Rayburn McGowan, Jr., Nashville, Tennessee, for the appellant, Brenda Kay Mayhew.

Paul G. Summers, Attorney General and Reporter; Elizabeth B. Marney, Assistant AttorneyGeneral; Victor S. (Torry) Johnson III, District Attorney General; and Bret Gunn, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge: WEDEMEYER

The Defendant, Brenda Kay Mayhew, pled guilty to one count of the sale of a schedule IIcontrolled substance, Dilaudid, and, pursuant to a plea agreement, the trial court sentenced the Defendant to a six-year sentence, as a Range II offender. The trial court ordered that theDefendantās sentence run consecutively to an eight-year sentence that she was currently serving. On appeal, the Defendant contends that the trial court erred when it ordered that the Defendantāssentences run consecutively. Finding no reversible error, we affirm the judgment of the trial court.

http://www.tba.org/tba_files/TCCA/2005/mayhewb91205.pdf


STATE OF TENNESSEE v. ELLEN COLLEEN SMITH

Court: TCCA

Attorneys:

Ardena J. Garth, Public Defender and Donna Robinson Miller, Assistant Public Defender, Chattanooga, Tennessee, for the appellant, Ellen Colleen Smith.

Paul G. Summers, Attorney General and Reporter; Jennifer L. Bledsoe, Assistant Attorney General; Bill Cox, District Attorney General; and Rodney C. Strong, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge: WELLES

This is a direct appeal as of right challenging the sentence imposed for convictions on ten counts of identity theft, ten counts of forgery, and nine counts of theft of property. The Defendant submitted a petition to enter an open guilty plea to all twenty-nine offenses, stemming from ten separate incidents. She was sentenced as a Range I, standard offender to partial consecutive sentences totaling twenty years, with four years to be served in confinement and the remainder on supervised probation. On appeal, the Defendant argues only that the trial court erred in running the sentences consecutively. Because it appears from the record that the Defendantās guilty pleas were never entered in open court, this cause is remanded to the trial court for further proceedings.

http://www.tba.org/tba_files/TCCA/2005/smithe91205.pdf


LARRY W. TIMBERLAKE v. STATE OF TENNESSEE

Court: TCCA

Attorneys:

Theodora A. Pappas, for the Appellant, Larry W. Timberlake.

Paul G. Summers, Attorney General & Reporter; Benjamin A. Ball, Assistant Attorney General;Victor S. Johnson, III, District Attorney General; and Bret Gunn, Assistant Attorney General, for the Appellee, State of Tennessee.

Judge: WITT

The defendant, Larry W. Timberlake, appeals his probation revocation and imposition of hisoriginal seven-year sentence. After a thorough review of the record and applicable law, we affirm the judgment of the trial court.

http://www.tba.org/tba_files/TCCA/2005/timberlakel91205.pdf


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