THE ANNUAL ETHICS ROADSHOW:
Just Sign Here . . . Conflict Waivers and Engagement Letters Under
Tennessee's New Rules

Dec. 8 - Memphis
Dec. 9 - Nashville
Dec. 16 - Knoxville
Dec. 17 - Chattanooga

With the advent of the new Tennessee Rules of Professional Conduct,
Tennessee lawyers now are required to follow their own advice when it
comes to having clients waive conflicts of interest. But who really
understands how to do this in a way that effectively communicates
what's important to the client, protects the lawyer from exposure down
the road, and complies with the ethics rule itself in the here and
now?

This three-hour seminar will be taught by either Lucian T. Pera
or Brian S. Faughnan, each of Armstrong Allen in Memphis. Lucian is
chair of the TBA Standing Committee on Ethics and Professional
Responsibility, and Brian practices law with Lucian in the area of
ethics and professional responsibility and is a frequent CLE speaker.

Today's Opinions: November 30, 2004
Volume 10 — Number 229
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
12 New Opinion(s) from the Tennessee Court of Appeals
07 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

DAVID STUPP, ET AL. v. PHILLIPS AUTO BODY, LLC AND FIRST AMERICAN
INSURANCE COMPANY, ET AL.

Court:TSC - Workers Comp Panel

Attorneys:                          

Richard W. Vaughn, Jr., Milan Tennessee, for the appellants, Phillips
Auto Body, LLC and First American Insurance Company.

David G. Mills, Cordova, Tennessee, for the appellee, David Stupp.

Judge: BUTLER

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 the plaintiff sustained a 25%
vocational impairment to the body as a whole.  The defendant asserts
that: 1)  the plaintiff failed to carry his burden of proof of
permanent injury; 2) the trial court erred in finding plaintiff had an
operative disk lesion which necessitated surgery; 3) the trial court
erred in not granting defendant's motion for additional facts or to
amend judgement; and 4) the trial court erred in finding that Dr.
Anthony Segal's charges were reasonable and necessary and in granting
plaintiff's motion for discretionary costs.  Plaintiff asserts that
the trial court erred when it awarded plaintiff a 25% disability
impairment to the body as a whole, urging that the award should have
been higher.  We agree with the position of the plaintiff, and for the
reasons set forth below, we modify the judgment of the trial court to
award a forty-five percent (45%) vocational disability to the body as
a whole.

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

WILBURN LEE BROWN, JR., v. STATE OF TENNESSEE, DEPARTMENT OF
CHILDREN'S SERVICES

Court:TCA

Attorneys:                          

Wilburn Lee Brown, Jr., pro se Appellant.

Paul G. Summers, Attorney General and Reporter, and Douglas Earl
Dimond, Senior Counsel, Nashville, Tennessee, for the Appellee State
of Tennessee, Department of Children's Services.

Judge: SWINEY

First Paragraph:

This appeal involves allegations of sexual abuse brought against
Wilburn Lee Brown, Jr., ("Petitioner") by his stepdaughter.  After the
allegations were investigated, DCS concluded there was substantial and
material evidence to support the allegations and the report of abuse
would be "validated" pursuant to Tenn. Comp. R. & Regs. 0250-7-9-.02. 
Because Petitioner was employed at a youth development center, he was
notified that his employer would be informed that he was the indicated
perpetrator in a "validated" report of child sexual abuse and that
Petitioner was no longer allowed to have access to children.  After
exhausting his administrative appeals, Petitioner appealed to the
Trial Court.  The Trial Court concluded there was substantial and
material evidence to support the allegations of abuse and affirmed. 
Petitioner appeals and we, likewise, affirm.

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

CITICORP MORTGAGE, INC. v. BANCORPSOUTH BANK

Court:TCA

Attorneys:                          

Michael C. Patton and Thomas F. Barnett of Memphis for Appellant,
Citicorp Mortgage, Inc.

John B. Philip of Memphis for Appellee, Bancorpsouth Bank

Judge: CRAWFORD

First Paragraph:

This case arises from trial court's denial of Appellant Bank's request
for equitable subrogation of Appellee Bank's lien to Appellant Bank's
lien.  Because Appellant Bank had knowledge of Appellee Bank's deed of
trust prior to making the loan, Appellant Bank is not entitled to
equitable subrogation.  We affirm.

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

IN THE MATTER OF C.M.S.; STATE OF TENNESSEE DEPARTMENT OF CHILDREN'S
SERVICES v. LISA HOWELL, ET AL.

Court:TCA

Attorneys:                          

Roger Stanfield of Jackson for Appellant, Lisa Howell

Paul G. Summers, Attorney General and Reporter; Elizabeth C. Driver,
Assistant Attorney General, For Appellee, Tennessee Department of
Children's Services

Judge: CRAWFORD

First Paragraph:

This is a termination of parental rights case.  Mother appeals from
the order of the Juvenile Court of Madison County, terminating her
parental rights on the grounds of persistence of conditions.
Specifically, Mother asserts that the termination of her parental
rights is not supported by clear and convincing evidence in the
record, and that termination is not in the best interest of the
children. We reverse and remand.

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

BRIAN DEAS, ADMINISTRATOR v. STATE OF TENNESSEE

Court:TCA

Attorneys:                          

Everett B. Gibson, Memphis, TN; Patrick J. Smith, Columbus, OH, for
Appellant

Paul G. Summers, Attorney General and Reporter, Michael E. Moore,
Solicitor General, Rebecca Lyford, Assistant Attorney General,
Nashville, TN, for Appellee

Judge: HIGHERS

First Paragraph:

This case involves a wrongful death action filed against the State of
Tennessee in the Tennessee Claims Commission pursuant to Tennessee
Code Annotated section 9-8-307(a)(1)(I) and (J).  Appellant is the
administrator of the estate of the deceased driver of an automobile
involved in a collision with another vehicle on a state highway. 
Following a hearing, the Commissioner ruled that the state was
negligent under section 9-8-307(a)(1)(I) in inspecting and maintaining
the section of highway at issue, the shoulder of the highway did not
constitute a dangerous condition under section 9-8-307(a)(1)(J), the
Appellant failed to prove that the condition of the highway was the
proximate cause of the decedent's untimely death, and the Appellant
was not entitled to recover because decedent's negligence in causing
the accident was at least fifty percent (50%). The Appellant filed a
notice of appeal to this Court, arguing that the Commissioner's
findings constitute error.  For the reasons stated herein, we affirm.

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

ALAN GARDNER v. ANESTHESIA & PAIN CONSULTANTS, P.C.

Court:TCA

Attorneys:                          

Robert L. Arrington and Steven C. Huret, Kingsport, for Appellant Alan
Gardner, M.D.

Frank A. Johnstone and Andrew T. Wampler, Kingsport, for Appellee
Anesthesia and Pain Consultants, P.C.

Judge: LEE

First Paragraph:

This appeal arises from the decision of Anesthesia & Pain Consultants,
P.C. ("A&PC") to terminate the employment of Dr. Alan Gardner. After
A&PC fired Dr. Gardner, he brought this action alleging breach of
employment contract, fraudulent and negligent misrepresentation,
promissory estoppel, and promissory fraud. The trial court granted
A&PC summary judgment on the misrepresentation claims. At the close of
Dr. Gardner's proof at trial, the trial court granted A&PC a directed
verdict on his claims of breach of contract and promissory estoppel.
The jury returned a verdict in favor of A&PC on the promissory fraud
claim. We affirm the judgment of the trial court in all respects.

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

GIBRALTAR TAFT HIGHWAY LIMITED PARTNERSHIP v. THE TOWN OF WALDEN, ET
AL.

Court:TCA

Attorneys:                          

Allen L. McCallie, Christie Kizer Grot, and William L. Brown,
Chattanooga, Tennessee, for the appellant, Gibraltar Taft Highway
Limited Partnership, through its general partner, The Raines Group,
Inc.

Ronald D. Wells, Stacy Lynn Archer, and Michael J. Stewart,
Chattanooga, Tennessee, for the appellees, the Town of Walden and its
Board of Aldermen.

Judge: SUSANO

First Paragraph:

Gibraltar Taft Highway Limited Partnership, through its general
partner, The Raines Group ("the plaintiff"), filed an application with
the Town of Walden's Board of Aldermen ("the Board"), seeking a permit
to build a townhouse project on property located within Walden.  The
Board denied the plaintiff's application.  The plaintiff then filed a
petition for writ of certiorari in the trial court.  Following a
hearing, that court upheld the decision of the Board, finding that the
Board had not acted illegally, arbitrarily, or capriciously in
rejecting the application.  The plaintiff appeals, contending that the
trial court erred in its determination.  We affirm.

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

MATTHEW LAWSON, ET AL. v. EDGEWATER HOTELS, INC., ET AL.

Court:TCA

Attorneys:                          

David A. Burkhalter, II, Knoxville, Tennessee, for the appellants,
Matthew Lawson, by his mother and next friend, Shirley Lawson, and
Shirley Lawson, individually.

David E. Long and Joshua A. Wolfe, Knoxville, Tennessee, for the
appellees, Edgewater Hotels, Inc., and Stokely Hospitality Properties,
Inc.

Judge: SUSANO

First Paragraph:

Matthew Lawson, by his mother and next friend, Shirley Lawson, and Ms.
Lawson, individually (collectively "the plaintiffs") brought an action
for negligence against Edgewater Hotels, Inc., and Stokely Hospitality
Properties, Inc. (collectively "the defendants"), alleging that
Matthew  sustained injuries as a consequence of swimming in the indoor
pool at the defendants' hotel.  According to the plaintiffs, Matthew
sustained these injuries (1) due to the excessive amount of chlorine
in the pool water and/or (2) because the defendants failed to properly
ventilate the indoor portion of the pool.  The defendants moved for
summary judgment.  The trial court granted the motion as to both of
the plaintiffs' theories.  The plaintiffs appeal.  We affirm the trial
court's judgment with respect to the plaintiffs' allegation that the
defendants' pool contained excessive levels of chlorine.  However, we
vacate the trial court's judgment with respect to the allegation that
the defendants' indoor pool was not properly ventilated.  We hold that
the defendants failed to meet their burden on summary judgment with
respect to this claim.

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

STATE OF TENNESSEE, DEPARTMENT OF CHILDREN'S SERVICES v. TAMMY ROBBINS

Court:TCA

Attorneys:                          

William R. Neese of Dresden for Appellant, Tammy Robbins

Paul G. Summers, Attorney General and Reporter; Michael E. Moore,
Solicitor General; Michael G. Schwegler, Assistant Attorney General
for Appellee, State of Tennessee, Department of Children's Services

Judge: CRAWFORD

First Paragraph:

This is a termination of parental rights case. Tammy Robbins ("Ms.
Robbins") appeals from the order of the Juvenile Court of Weakley
County terminating her parental rights. Specifically, Robbins asserts
that the trial court erred the following five respects: in admitting
the testimony of a certain expert witness; in disregarding the
testimony of another expert witness; in disregarding the testimony of
Robbins's fact witnesses; in refusing to observe Robbins with her
children; and in considering, in the termination proceeding, evidence
of the State's earlier removals of the children from Robbins's
custody. Because we find appellant's assertions to be without merit,
we affirm.

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

SUSAN SIMMONS, ET AL. v. STATE FARM GENERAL INSURANCE COMPANY, ET AL.

Court:TCA

Attorneys:                          

P. Mark Ledbetter, Memphis, Tennessee, for the appellants, Susan
Simmons and Corrine Beckwith, and as a representative of a Class of
Homeowners' Policyholders of State Farm Fire & Casualty Company.

George T. Lewis, III and Thomas F. Barnett, Memphis, Tennessee, for
the appellees, Sate Farmer General Insurance Company, Sate Farm Fire &
Casualty Company, State Farm Mutual Automobile Insurance Company.

Judge: FARMER

First Paragraph:

Homeowner's insurance policyholders filed a complaint against an
insurance carrier seeking benefits under policy and a declaratory
judgment that policy language was ambiguous.  Homeowners filed a
motion seeking certification as a class action.  The insurance carrier
filed a motion for summary judgment, asserting that plaintiff
Beckwith's claim for benefits was time barred and plaintiff Simmons's
claim was non-justiciable.  The insurance carrier filed separate
motions to stay discovery and defer the class certification hearing
until after the hearing on the motion for summary judgment, which the
trial court granted.  The trial court granted the insurance carrier
summary judgment against all plaintiffs, thereby disposing of the
class certification issue.  Homeowners appeal from the order granting
summary judgment.  We affirm.

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

IN THE MATTER OF: T.L.M., T.L.J., And T.J.B., Jr.  

Court:TCA

Attorneys:                          

Lanis L. Karnes, Jackson, Tennessee, for the appellant.

Paul G. Summers, Attorney General and Reporter, Joe Shirley, Assistant
Attorney General for the appellee, State of Tennessee Department of
Children's Services.

Julia C. Grinalds, Jackson, Tennessee, for the Department of
Children's Services.

Sherry M. Perceival, Guardian ad Litem.

Judge: FARMER

First Paragraph:

The trial court terminated the parental rights of the Mother and
alleged Fathers of two children under the age of 18.  Mother appeals. 
We affirm.

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

JEFFREY SCOTT WEST v. SHARON ANN WEST

Court:TCA

Attorneys:                          

Morgan G. Adams, Chattanooga, Tennessee, for the appellant, Sharon Ann
West.

Phillip C. Lawrence, Chattanooga, Tennessee, for the appellee, Jeffrey
Scott West.

Judge: SUSANO

First Paragraph:

Jeffrey Scott West ("Father") filed a petition against his former
wife, Sharon Ann West ("Mother"), seeking to modify the parties'
Permanent Parenting Plan, which plan had not required Mother to pay
child support due to the fact she was unemployed.  The trial court,
finding that, since the entry of the parenting plan, Mother had had a
two-year gross income of over $25,000, held that there had been a
substantial and material change in circumstances justifying an order
requiring that Mother pay child support of $290 per month.  Mother
appeals, arguing that the trial court erred in ordering her to pay
child support and in the methodology used by the court in calculating
child support.  We affirm.

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

CHRISTINA K. YEUBANKS v. METHODIST HEALTHCARE MEMPHIS HOSPITALS, ET
AL.

Court:TCA

Attorneys:                          

T. Robert Hill and Randall J. Phillips of Jackson For Appellant,
Christina K. Yeubanks

Lee J. Chase, III of Memphis For Appellee, Methodist Healthcare -
Memphis Hospitals, d/b/a Le Bonheur Children's Medical Center, Inc.

Teresa J. Sigmon and Claire M. Cissell of Memphis For Appellee, Amy L.
Hertz, M.D.

Judge: CRAWFORD

First Paragraph:

Appellant, the mother of a nine year old girl who died after being
seriously injured in an automobile accident, challenges the trial
court's dismissal of her suit for failure to pay discretionary costs
resulting from a prior trial of her suit (which ended with voluntary
dismissal of some claims, and directed verdict for Appellees on other
claims). Appellant contends that the trial court that originally heard
the case displayed bias or prejudice in favor of Appellees during that
proceeding. Appellant contends that, due to the court's alleged bias
in favor of defendants, the division of the circuit court in which she
re-filed the case erred in transferring the case back to the original
division in which it was heard. Appellant further contends that, upon
the case being transferred back to the division in which it was
originally heard, the trial court erred in not recusing itself due to
its alleged bias or prejudice. Appellant also contends that, after
failing to recuse itself, the trial court erred in dismissing her
lawsuit for failure to pay discretionary costs assessed at the
conclusion of the prior trial. We affirm the judgment of the trial
court, and remand for determination of damages for the filing of a
frivolous appeal.

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

STATE OF TENNESSEE v. JIMMY RAY DOCKERY

Court:TCCA

Attorneys:                          

John D. Parker, Jr., Kingsport, Tennessee, for the Appellant, Jimmy
Ray Dockery.

Paul G. Summers, Attorney General & Reporter; Kathy D. Asligner,
Assistant Attorney General; H. Greeley Wells, Jr., District Attorney
General; and Barry P. Staubus and Carey Taylor, Assistant District
Attorneys General, for the Appellee, State of Tennessee.

Judge: WITT

First Paragraph:

The defendant, Jimmy Ray Dockery, appeals the Sullivan County Criminal
Court's decision to deny probation on his two-year sentence for
attempt to fraudulently obtain a controlled substance.  Based on our
review of the record, we affirm the judgment.

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

STATE OF TENNESSEE v. FRANKLIN HOWARD

Court:TCCA

Attorneys:                          

Joseph S. Ozment, Memphis, Tennessee, for the Appellant, Franklin
Howard.

Michael E. Moore, Solicitor General; J. Ross Dyer, Assistant Attorney
General; William L. Gibbons, District Attorney General; and Robert C.
Carter and Jennifer Nichols, Assistant District Attorneys General, for
the Appellee, State of Tennessee.

Judge: WITT

First Paragraph:

Following a remand for a new trial on the charge of first-degree
premeditated murder, see State v. Howard, 30 S.W.3d 271 (Tenn. 2000),
the defendant, Franklin Howard, was again convicted of first- degree
premeditated murder and was also convicted of felony murder and
sentenced to life in prison.  Now on appeal, he challenges the
sufficiency of the convicting evidence, the admission of a co-
defendant's statement, the failure of the trial court to bar the
second trial based upon principles of double jeopardy, the trial
court's jury instructions, the failure to transfer the case to another
trial judge for retrial, and the imposition of consecutive sentencing.
 We reverse the felony-murder convictions and dismiss those charges
but otherwise affirm the defendant's first-degree murder conviction
and sentence.

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

STATE OF TENNESSEE v. ALLEN KEN KINNEY, III

Court:TCCA

Attorneys:                          

Joseph P. Atnip, District Public Defender, for the appellant, Allen
Ken Kinney, III.

Paul G. Summers, Attorney General & Reporter; Renee W. Turner and Mike
Davis, Assistant Attorneys General; and James Cannon, Assistant
District Attorney General, for the appellee, State of Tennessee.

Judge: WADE

First Paragraph:

The defendant, Allen Ken Kinney, III, entered pleas of guilt to two
counts of sale of a controlled substance, .5 grams or more of a
substance containing cocaine, a Schedule II drug. See Tenn. Code Ann.
S 39-17-417(A)(3).  The trial court imposed concurrent, Range I,
eight-year sentences on each of the two Class B felonies, requiring
twelve months in jail, less thirty-nine days of pretrial jail credit,
with the balance to be served on probation.   The sentences were
ordered to be served concurrently with a sentence imposed in Kentucky.
 In this appeal, the defendant complains that the term of
incarceration was excessive.  The judgments are affirmed.

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

MARIA MACLIN v. STATE OF TENNESSEE

Court:TCCA

Attorneys:                          

C. Michael Robbins and James Thomas, Memphis, Tennessee (at trial),
and William D. Massey and Lorna McClusky, Memphis, Tennessee (on
appeal), for the appellant, Maria Maclin.

Paul G. Summers, Attorney General and Reporter; David H. Findley,
Assistant Attorney General; William L. Gibbons, District Attorney
General; and Emily Campbell, Assistant District Attorney General, for
the appellee, State of Tennessee

Judge: OGLE

First Paragraph:

The petitioner, Maria Maclin, was convicted by a Shelby County jury of
second degree murder.  The trial court sentenced the petitioner to
twenty-two years in the Tennessee Department of Correction, and a ten
thousand dollar fine was imposed.  Following an unsuccessful appeal of
her conviction, the petitioner filed a petition for post-conviction
relief, alleging ineffective assistance of counsel at trial.  The
petitioner now brings this appeal challenging the post-conviction
court's denial of her petition.  After reviewing the record and the
parties' briefs, we affirm the judgment of the post- conviction court.

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

STATE OF TENNESSEE v. EARICE ROBERTS

Court:TCCA

Attorneys:                          

Robert Wilson Jones, Shelby County Public Defender, and W. Mark Ward,
Assistant Shelby County Public Defender, for the appellant, Earice
Roberts.

Paul G. Summers, Attorney General and Reporter; Renee W. Turner,
Assistant Attorney General; William L. Gibbons, District Attorney
General; and Steve Jones and Dean Decandia, Assistant District
Attorneys General, for the appellee, State of Tennessee.

Judge: GLENN

First Paragraph:

The defendant, Earice Roberts, was convicted by a Shelby County
Criminal Court jury of simple possession of marijuana, a Class A
misdemeanor; possession of heroin with the intent to sell, a Class B
felony; possession of heroin with the intent to deliver, a Class B
felony; and two counts of assault, a Class A misdemeanor.  After
merging the possession of heroin with intent to sell conviction with
the possession of heroin with the intent to deliver conviction, the
trial court sentenced the defendant as a Range I, standard offender to
twelve years for possession of heroin with the intent to deliver;
eleven months, twenty-nine days for possession of marijuana; and
eleven months, twenty-nine days for each assault.  The trial court
ordered that the marijuana sentence be served concurrently to the
heroin sentence, but that the sentences for assault be served
consecutively to each other and consecutively to the twelve-year
sentence for possession of heroin, for a total effective sentence of
thirteen years, eleven months, and twenty-nine days in the Department
of Correction.  The sole issue the defendant raised on appeal was
whether the trial court erred in admitting the heroin into evidence
because of the State's alleged failure to establish a proper chain of
custody.  However, while the case was still pending, the defendant
filed a motion requesting that we consider an additional issue on
appeal; namely, the impact of the United States Supreme Court's
recently released Blakely v. Washington, 542 U.S. ___,124 S. Ct. 2531
(2004), opinion on the enhanced heroin sentence imposed as well as on
the consecutive sentencing ordered in the case.  Following our review,
we conclude that the trial court did not err in admitting the heroin
into evidence; that three of the four enhancement factors were
inappropriately applied under Blakely, but that the remaining
applicable enhancement factor, to which the trial court assigned heavy
weight, justifies an enhanced sentence of ten years, six months; and
that Blakely does not affect the trial court's imposition of
consecutive sentencing.  Accordingly, we modify the defendant's
sentence for possession of heroin with the intent to deliver from
twelve years to ten years, six months, but in all other respects
affirm the judgments of the trial court.

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

STATE OF TENNESSEE v. LAMAR ROSS
WITH CONCURRING OPINION

Court:TCCA

Attorneys:                          

Robert Wilson Jones, Shelby County Public Defender, and Tony N.
Brayton, Assistant Public Defender, for the appellant, Lamar Ross.

Paul G. Summers, Attorney General and Reporter; Jennifer Bledsoe,
Assistant Attorney General; William L. Gibbons, District Attorney
General; and Betsy Carnesale, Assistant District Attorney General, for
the appellee, State of Tennessee.

Judge: GLENN

First Paragraph:

The defendant, Lamar Ross, was indicted by the Shelby County Grand
Jury on two counts of aggravated rape, a Class A felony, under
alternate theories, for one offense.  Following a jury trial, he was
convicted of both counts, which were merged into a single judgment of
conviction, and sentenced by the trial court as a Range I, violent
offender to twenty-four years in the Department of Correction.  In a
timely appeal to this court, he challenges the sufficiency of the
evidence and the sentencing imposed.  Based on our review, we modify
the conviction in Count 2 to rape, a Class B felony, in accordance
with the offense with which the defendant was charged.  Further, we
conclude that two of the four enhancement factors are inapplicable, in
light of the United States Supreme Court's subsequent opinion in
Blakely v. Washington, 542 U.S. ___, 124 S. Ct. 2531 (2004). 
Accordingly, we modify the aggravated rape conviction in Count 2 to
rape, which merges into the conviction for aggravated rape in Count 1,
and reduce the defendant's sentence to twenty-two years in the
Department of Correction.

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

CONCURRING OPINION
http://www.tba.org/tba_files/TCCA/rosslamar_con.wpd

STATE OF TENNESSEE v. CHESTER WAYNE WALTERS
CORRECTED OPINIO WITH ORDER

Court:TCCA

Attorneys:                          

David Neal Brady, District Public Defender, Joe L. Finley, Jr., and
John Byers Nisbett, III, Assistant Public Defenders, for the
appellant, Chester Wayne Walters.

Paul G. Summers, Attorney General and Reporter; Jennifer L. Bledsoe,
Assistant Attorney General; William Edward Gibson, District Attorney
General; and William M. Locke, Assistant District Attorney General,
for the appellee, State of Tennessee.

Judge: TIPTON

First Paragraph:

A White County Criminal Court jury convicted the defendant, Chester
Wayne Walters, of two counts of rape of a child, a Class A felony, and
two counts of aggravated sexual battery, a Class B felony, and the
trial court sentenced him to concurrent sentences of twenty-five years
for each rape conviction and twelve years for each aggravated sexual
battery conviction.  The defendant appeals, claiming that (1) the
evidence is insufficient to support the convictions; (2) the trial
court should have merged the aggravated sexual battery convictions
into the child rape convictions; (3) the trial court improperly
allowed an expert to give hearsay testimony; (4) the trial court erred
by failing to charge any lesser included offenses; (5) the trial court
gave erroneous jury instructions on the mens rea elements of the
crimes; and (6) his sentences are excessive.  We affirm the
defendant's child rape convictions but hold that his convictions for
aggravated sexual battery violate double jeopardy and must be merged
into the child rape convictions.  We also hold that the trial court
improperly enhanced the defendant's sentences in light of Blakely v.
Washington, 542 U.S. ___, 124 S. Ct. 2531 (2004), and we reduce the
defendant's sentences to twenty-three years for each child rape
conviction.  We remand the case for the entry of appropriate judgments
of conviction.

CORRECTED OPINION
http://www.tba.org/tba_files/TCCA/walterschesterwayne.wpd

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

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