Arnold Carter v. State of Tennessee
E2003-02887-CCA-R3-PC
Authoring Judge: Presiding Judge Gary R Wade
Trial Court Judge: Judge R. Steven Bebb

The petitioner, Arnold Carter, appeals the trial court's dismissal of his petition for writ of habeas corpus. The State has filed a motion requesting that this Court dismiss the appeal or, in the alternative, affirm the trial court's denial of relief pursuant to Rule 20, Rules of the Court of Criminal Appeals. The petitioner has not established a valid claim for habeas corpus relief. Accordingly, the State's motion is granted and the judgment of the trial court is affirmed.

James Wohlfahrt, et al., v. Arlene Scavuzzo
W2002-02641-COA-R3-CV
Authoring Judge: Judge David R. Farmer
Trial Court Judge: Judge Jon Kerry Blackwood

Plaintiffs’ insurer appeals award of benefits to Plaintiffs under Plaintiffs’ uninsured/underinsured motorist policy. We affirm.
 

Roger Raymond Desmarais v. The Bailey Company,
M2002-02637-WC-R3-CV
Authoring Judge: Joe C. Loser, Jr., Sp. J.
Trial Court Judge: C. K. Smith, Chancellor
This workers' compensation appeal has been referred to the Special Workers' Compensation Appeals Panel of the Supreme Court in accordance with Tenn. Code Ann. _ 5-6-225(e)(3) for hearing and reporting to the Supreme Court of findings of fact and conclusions of law. In this appeal, the employee insists the trial court erred in dismissing his claim. As discussed below, the panel has concluded the evidence fails to preponderate against the findings of the trial court. Tenn. Code Ann. _ 5-6-225(e) (22 Supp.) Appeal as of Right; Judgment of the Chancery Court Affirmed JOE C. LOSER, JR., SP. J., in which JANICE M. HOLDER, J., and JAMES L. WEATHERFORD, SR. J., joined. Michael W. Ferrell, Mt. Juliet, Tennessee, for the appellant, Roger Raymond Desmarais D. Andrew Saulters, Nashville, Tennessee, for the appellee, The Bailey Company Paul G. Summers, Attorney General & Reporter, and E. Blaine Sprouse, Assistant Attorney General, Nashville, Tennessee, for the appellee, Second Injury Fund MEMORANDUM OPINION The employee or claimant, Mr. Desmarais, initiated this civil action to recover workers' compensation benefits. The employer, The Bailey Company, and the Second Injury Fund denied liability. After a trial on the merits, the trial court dismissed the claim for insufficient proof of a compensable injury by accident. The claimant has appealed. Appellate review is de novo upon the record of the trial court, accompanied by a presumption of correctness of the findings of fact, unless the preponderance of the evidence is otherwise. Tenn. Code Ann. _ 5-6-225 (e)(2). This tribunal is not bound by the trial court's findings but instead conducts an independent examination of the record to determine where the preponderance lies. Galloway v. Memphis Drum Serv., 822 S.W.2d 584, 586 (Tenn. 1991). The claimant began working for the employer in January 2 as a brick mason. He alleges that he felt back pain at work on April 24, 2, while lifting a cover on a forklift. There were no witnesses to the incident. The claimant received treatment from two different doctors, but continues to have back pain. Medical restrictions prevent him from returning to work for the employer. The claimant has a history of back problems. He suffered an injury in 1985, while working for another employer in Massachusetts. His workers' compensation claim was settled for $16,.. In May 1999, he suffered a second back injury for which he did not seek workers' compensation benefits. Diagnostic testing revealed a large herniated disc at L5-S1 following the 1999 injury. The record contains conflicting medical testimonyas to whether the claimant's present injury is work related. Dr. Thomas O'Brien, who treated the claimant, reported that the claimant did not inform him of the claimant's injuries of 1985 or 1999, when the medical history was taken. In addition, after comparing an MRI that was ordered in May 1999 with one ordered by Dr. Daniel McHugh in May 2, Dr. O'Brien testified that the reports of the MRIs were essentially the same and that there was no anatomic change revealed by comparing the two reports. Dr. David Gaw, an examining physician, opined that the claimed injury probably was causally related to the work the claimant was performing for the employer. However, Dr. Gaw was unaware of the claimant's 1999 injury. Moreover, when Dr. Gaw compared the two MRI reports, he agreed there was no significant difference between the two. Dr. Gaw also conceded that there were inconsistencies in the history given by the claimant. The claimant contends the trial court should have found his injury to be work related based upon medical testimony by Dr. Gaw that there could be some undetected nerve damage. The employer takes the employee with all pre-existing conditions, and cannot escape liability when the employee, upon suffering a work-related injury, incurs disability far greater than if the employee had not had the pre-existing conditions; but if work aggravates a pre- existing condition merely by increasing pain, there is no injury by accident. Kellerman v. Food Lion, 929 S.W.2d 333, 335 (Tenn. 1996) To be compensable, the pre-existing condition must be advanced, there must be an anatomic change in the pre-existing condition, or the employment must cause an actual progression of the underlying disease. Sweat v. Superior Industries, Inc., 966 S.W.2d 31, 32 (Tenn. 1998). From our independent examination of the record, the evidence fails to preponderate against the trial court's finding that the claimant did not suffer a compensable injury while working for the employer, as claimed. The finding was largely based on the claimant's lack of credibility. The claimant further contends the trial court erred in rejecting his testimony and accepting the testimony of medical experts that he gave them an incomplete history. The trial court explicitly found the claimant to be lacking in credibility. Where the trial judge has seen and heard the -2-

Thurman Pete Rolland, pro se v. State of Tennessee
M2002-02709-CCA-R3-CO
Authoring Judge: Judge Robert W. Wedemeyer
Trial Court Judge: Judge Cheryl A. Blackburn

The Petitioner, Thurman Pete Rolland, appeals the trial court's dismissal of his third petition for post conviction 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. The Petitioner had no authority to file a third petition for post-conviction relief, and the statute of limitations had expired. Accordingly, the State's motion is granted and the judgment of the trial court is affirmed.

Ernest Tarpley, et al, v. Bert Hornyak, et al.
M2002-01466-COA-R3-CV
Authoring Judge: Judge Patricia J. Cottrell
Trial Court Judge: Chancellor Charles K. Smith

Landowners sued to abate a nuisance claiming that a concrete causeway, built over a creek by an adjoining landowner, caused water to flood their property. After hearing from one witness, the trial judge discouraged further proof and instead chose to visit the plaintiffs' land at the next flooding. He subsequently found the causeway to be a nuisance and ordered it removed. We reverse because trial court based its decision solely on the basis of the judge's personal observations.

State of Tennessee v. Jacob Campbell
M2003-00597-CCA-R3-CD
Authoring Judge: Judge Robert W. Wedemeyer
Trial Court Judge: Judge J. Randall Wyatt, Jr.

A Davidson County jury convicted the defendant, Jacob Edward Campbell, of premeditated first degree murder, felony murder, and robbery, and the trial court merged the two murder convictions into a single offense of first degree murder. Thereafter, the jury sentenced the defendant to life imprisonment with the possibility of parole for first degree murder, and the trial court imposed a ten-year sentence for the robbery conviction to be served consecutively to the defendant's life sentence. On appeal, the defendant contends that: (1) the evidence was insufficient to support his convictions; (2) the trial court erred by admitting into evidence crime scene photographs of the murder victim; (3) the trial court erred by admitting into evidence testimony regarding pills found on the defendant when he was arrested; (4) the trial court erred by allowing a State's witness to read to the jury a summary of the witness's pre-trial statement to police; (5) the trial court erred by denying the defendant's request to introduce a prior recorded statement of an unavailable witness to impeach a State's witness; (6) the trial court erred by not clarifying its jury charge that the jury could not consider evidence introduced at trial concerning the co-defendant; and (7) the trial court erred by ordering that the sentence for robbery run consecutively to the defendant's life sentence. Finding no reversible error, we affirm the trial court's judgments.

Anthony D. McDaniel, pro se., v. Bruce Westbrooks
W2003-00801-CCA-R3-CO
Authoring Judge: Judge John Everett Williams
Trial Court Judge: Judge Joseph H. Walker, III

The Petitioner, Anthony D. McDaniel, 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. The Petitioner fails to assert a cognizable claim for which habeas corpus relief may be granted. Accordingly, the State's motion is granted and the judgment of the trial court is affirmed.

State of Tennessee v. Christopher Michael Schmidt
W2003-02121-CCA-R3-CD
Authoring Judge: Judge Alan E. Glenn
Trial Court Judge: Judge Jon K. Blackwood

This matter is before the Court upon the State’s motion to affirm the judgment of the trial court pursuant to Rule 20, Rules of the Court of Criminal Appeals. The Appellant, Christopher Michael Schmidt, appeals the trial court’s denial of a writ of habeas corpus. The only issue for this Court’s review is whether the trial court committed error by its order of transfer of the Appellant to the temporary custody of the State of Delaware. Finding no error committed by the trial court, this Court concludes that the judgment of the trial court should be affirmed.

State of Tennessee v. Lenzo Sherron A/K/A Salaam Shabazz
W2003-01222-CCA-R3-CD
Authoring Judge: Judge John Everett Williams
Trial Court Judge: Judge Lee Moore

The defendant was convicted of aggravated robbery, a Class B felony, and sentenced to ten years as a standard offender. The defendant has filed a pro se appeal of right of his conviction, posing the following issues for our review: 1) Whether the evidence was sufficient beyond a reasonable doubt to support the defendant’s conviction for aggravated robbery; 2) Whether the State improperly withheld exculpatory and impeachment evidence; and 3) Whether the trial court failed to investigate a conflict of interest before appointing new counsel. After careful review, we affirm the conviction.

Odean Cooper v. State of Tennessee
W2003-01518-CCA-R3-PC
Authoring Judge: Judge Joe G. Riley
Trial Court Judge: Judge Joseph H. Walker, III

The petitioner appeals the lower court’s denial of his post-conviction relief petition following his guilty plea to possession of less than .5 grams of cocaine with intent to deliver. On appeal, the petitioner contends: (1) he received ineffective assistance of counsel; and (2) he did not knowingly and voluntarily enter his guilty plea. We affirm the judgment of the post-conviction court.

State of Tennessee v. James Stacy Carroll
W2003-01182-CCA-R3-CD
Authoring Judge: Judge J. Curwood Witt, Jr.
Trial Court Judge: Judge C. Creed McGinley

The defendant, James Stacy Carroll, appeals from his Carroll County Circuit Court conviction of driving a vehicle in violation of a motor vehicle habitual offender order. He challenges the sufficiency of the convicting evidence. We hold that the evidence is sufficient to support the conviction and affirm the conviction.

State of Tennessee v. Thelisa Emery and Maurice Emery
W2002-02698-CCA-R3-CD
Authoring Judge: Judge J. Curwood Witt, Jr.
Trial Court Judge: Judge Clayburn L. Peeples

The defendants, Thelisa Emery and Maurice Emery, sister and brother, were each convicted in a joint jury trial of possession with intent to sell .5 grams or more of cocaine, possession of marijuana, and possession of drug paraphernalia. On appeal, Thelisa Emery claims that the convicting evidence is insufficient and that the trial court erred in not severing the defendants’ trials, in allowing testimony about Thelisa Emery’s use of cocaine, in allowing evidence of her prior sale of cocaine, and in instructing the jury as to her guilt via criminal responsibility for the acts of Maurice Emery. Maurice Emery raised some of the same issues, but because he failed to file a timely motion for new trial, appellate review of his convictions is limited to the sufficiency of the convicting evidence. Discerning no reversible error with respect to either defendant, we affirm the judgments of the trial court.

Ricco Saine v. State of Tennessee
W2002-02805-CCA-R3-PC
Authoring Judge: Judge James Curwood Witt, Jr.
Trial Court Judge: Judge W. Otis Higgs, Jr.

Aggrieved that the lower court denied post-conviction relief following an evidentiary hearing, the petitioner, Ricco Saine, appeals and claims that his aggravated burglary conviction resulted from ineffective assistance of counsel and an involuntary guilty plea. We affirm the denial of post-conviction relief.

Quincy Henderson v. State of Tennessee
W2002-02541-CCA-R3-PC
Authoring Judge: Judge J. Curwood Witt, Jr.
Trial Court Judge: Judge W. Otis Higgs, Jr.

The petitioner, Quincy Henderson, appeals the Shelby County Criminal Court’s dismissal of his post-conviction petition, in which he claimed that his second degree murder conviction was constitutionally infirm because of ineffective assistance of trial counsel. Upon our review of the record, the parties’ briefs, and the applicable law, we affirm the denial of post-conviction relief.

Wade Nance v. State Industries,
M2002-01762-WC-R3-CV
Authoring Judge: Allen W. Wallace, Sr. J.
Trial Court Judge: Leonard W. Martin, Chancellor
This workers' compensation appeal has been referred to the Special Workers' Compensation Appeals Panel of the Supreme Court in accordance with Tenn. Code Ann. Section 5-6-225 (e)(3) for hearing and reporting to the Supreme Court of findings of fact and conclusions of law. This matter was initially tried by the trial court on November 29, 1999, and the trial court found in favor of employer/defendant State Industries due to employee's failure to use a mandated safety procedure. On appeal, the Workers' Compensation Panel articulated a new four-prong standard to be applied when employers assert the affirmative defense of willful failure or refusal to use a safety appliance. This case Wade Nance v. State Industries, Inc. and ITT Hartford Insurance Co., 33 S.W.3d 222 (Tenn. 2). The four prong test enumerated is as follows: (1) at the time of the injury the employer had in effect a policy requiring the employee's use of a particular safety devise; (2) the employer carried out strict, continuous and bona fide enforcement of the policy; (3) the employee had actual knowledge of the policy, including a knowledge of the danger involved in its violation, through training provided by the employer; and (4) the employee willfully and intentionally failed or refused to follow the established policy requiring use of the safety appliance. The panel concluded that the employer had carried its burden of proof on elements (1), (3) and (4), and remanded the case for a new trial on element (2), all as set out above. On July 15, 22, the case was tried again before the same judge and the court determined State Industries, employer, had satisfied its burden of proof on this issue, i.e. the employer carried out a strict, continuous and bona fide enforcement policy. As discussed below, the panel has concluded the evidence does not preponderate against the trial court's finding and we affirm. Tenn. Code Ann. _ 5-6-225(e) (2 Supp.) Appeal as of Right; Judgment of the Chancery Court Affirmed ALLEN W. WALLACE, SR. J., in which ADOLPHO A. BIRCH, JR., J. and Joe C. Loser, Jr., Sp. J., joined. Donald D. Zuccarello, Nashville, Tennessee and Marcia D. McShane, Nashville, Tennessee, for appellant, Wade Nance Cynthia Debula Baines, Nashville, Tennessee, John Thomas Feeney, Nashville, Tennessee, and Shannon Elisabeth Poindexter, Nashville, Tennessee, for appellees, ITT Hartford Insurance Co. and State Industries, Inc. MEMORANDUM OPINION FACTS On June 7, 1998, complainant, employee, while performing his duties for employer as a greaser and oiler, suffered a fractured right ankle. Employee had positioned himself on a ladder approximately four to five feet off the floor and was attempting to grease a turn-roller machine located in the employer's paint shop. Another employee unexpectedly activated the turn-roller, causing the employee to fall, injuring his ankle. Employer required lock-out/ tag out safety procedure, and employee failed to use the procedure. The purpose of the lock- out/tag out procedure is to prevent a machine from being activated while being cleaned or otherwise maintained. Employer had such a safety procedure in their training manual which was disseminated to its employees. They further had training classes, and employee had received training on this procedure. Evidence in this case indicated some employees did not use this safety procedure even though they had a device on their person to initiate the procedure. Employer had in place a procedure for disciplinary violations ranging from a written reprimand to termination. ANALYSIS Appellate review is de novo upon the record of the trial court, accompanied by a presumption of correctness of the findings of fact, unless the preponderance of the evidence is otherwise. Tenn. Code Ann. _ 5-6-225(e)(2) (22 Supp.). The reviewing court is required to conduct an independent examination of the record to determine where the preponderance of the evidence lies.

In Re: The Estate of Ollie McCord; Joann Heinrich v. Helen Brooks
M2003-00175-COA-R3-CV
Authoring Judge: Judge Holly M. Kirby
Trial Court Judge: Judge Frank G. Clement, Jr.

This is a will contest. The will disinherited two of the decedent's five living children and the one child who had predeceased her. One of the disinherited children contested the will, asserting that the decedent did not have the mental capacity to execute a valid will. Four years prior to the will's execution, the decedent had been diagnosed with dementia, a progressive mental disorder. Based on witness testimony, the trial court found that, on the date the will was executed, the decedent had the mental capacity to execute the will. The will was admitted into probate. The will contestant appeals. In deference to the trial court's determinations of credibility, and in light of the weight of the evidence demonstrating capacity, we affirm.

State of Tennessee v . Sandy Marie McKay
M2002-03066-CCA-R3-CD
Authoring Judge: Judge David H. Welles
Trial Court Judge: Judge Cheryl A. Blackburn

The defendant, Sandy Marie McKay, pled guilty to attempted aggravated child neglect, a Class B felony. After a hearing, the trial court sentenced the defendant as a Range I standard offender to nine years in the Department of Correction. The defendant now appeals, contesting both the length and manner of service of her sentence. We affirm the judgment of the trial court.

Ralph Sasser v. Quebecor Printing,(USA) Corp., D/B/A Quebecor Printing Clarkesville
M2003-00287-COA-R3-CV
Authoring Judge: Judge Holly M. Kirby
Trial Court Judge: Judge Ross H. Hicks

This is a case involving an alleged hostile work environment based on disability. The employee worked in the maintenance department of a large printing facility. He had an on-the-job accident which resulted in the amputation of his leg. To accommodate his disability, the employer created a clerical position for him. The employee's work space was a "community desk" located in the maintenance area, an area to which numerous employees had regular access. The employee reported to the employer several incidents of alleged harassment, such as grease under the desk, lunch residue being left on the desk, dirty footprints in the desk's chair, and his computer monitor defaced with a profane statement. The employer moved the employee to a private office, and there were no further incidents. The employee filed a complaint alleging, inter alia, a hostile work environment based on disability, his amputated leg. The trial court granted summary judgment in favor of the employer. We affirm, finding that the incidents do not amount to harassment, and that there is no evidence that the conduct was either directed at the employee or linked to his disability.

State of Tennessee v. David Sonnemaker
E2003-01402-CCA-R3-CD
Authoring Judge: Judge Robert W. Wedemeyer
Trial Court Judge: Judge Rebecca J. Stern

The Defendant, David W. Sonnemaker, appeals from the Hamilton County Criminal Court's revocation of his probation that he received for his guilty plea to sexual battery. The Defendant contends that: (1) he did not receive effective assistance of counsel at his probation revocation hearing; and (2) he was not provided adequate notice of the probation violation or given an opportunity to be heard. We affirm the lower court's judgment.

Cinderella Ferrell Osborne v. Mountain Life Insurance Company
E2002-01023-SC-R11-CV
Authoring Judge: Justice E. Riley Anderson
Trial Court Judge: Judge John K. Wilson

We granted review to determine whether the defendant credit life insurance company was estopped from relying on policy language which excluded coverage if an insured received medical treatment for and died from a disease within six months of the date of coverage. The trial court granted summary judgment to the credit life insurance company based on the policy exclusion. The Court of Appeals reversed, holding that the defendant was estopped from relying on the policy exclusion and ordering payment of the policy benefits to the plaintiff, widow of the insured. After reviewing the record and applicable authority, we conclude that the trial court correctly granted summary judgment for the defendant and that the Court of Appeals erred in holding that the defendant was estopped from relying on the policy exclusion. We therefore reverse the judgment of the Court of Appeals and reinstate the judgment of the trial court.

William R. Smothers v. Markel Lighting, Inc; Cigna
W2002-02933-WC-R3-CV
Authoring Judge: Joe H. Walker, III, Sp.J.
Trial Court Judge: Julian P. Guinn, Judge
This workers' compensation appeal has been referred to the Special Workers' Compensation Appeals Panel in accordance with Tennessee Code Annotated section 5-6-225(e) (3) for hearing and reporting to the Supreme Court of findings of fact and conclusions of law. The trial court found that the Employee failed to give notice as required by TennesseeC.Annotated section 5- 6-21. We affirm.

Allen R. Carlton, pro se v. State of Tennessee
M2002-03097-CCA-R3-CO
Authoring Judge: Judge Robert W. Wedemeyer
Trial Court Judge: Judge J. Randall Wyatt, Jr.

The Petitioner, Allen R. Carlton, 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. The Petitioner fails to assert a cognizable claim for which habeas corpus relief may be granted. Accordingly, the State's motion is granted and the judgment of the trial court is affirmed.

State of Tennessee v. Wilmore Hatfield
M2002-00939-SC-R11-CD
Authoring Judge: Justice William M. Barker
Trial Court Judge: Judge Eric Shayne Sexton

This is an appeal from the Criminal Court for Fentress County which convicted the defendant, Wilmore Hatfield, of felony reckless endangerment as a lesser-included offense of aggravated assault. Relying on this Court's decision in State v. Moore, 77 S.W.3d 132 (Tenn. 2002), the Court of Criminal Appeals reversed the conviction, concluding that felony reckless endangerment was not a lesser-included offense of aggravated assault. The State then sought, and this Court granted, permission to appeal on the sole issue of whether felony reckless endangerment is a lesser-included offense of aggravated assault committed by intentionally or knowingly causing bodily injury to another by the use of a deadly weapon. We hold that it is a lesser-included offense under State v. Burns, 6 S.W.3d 453 (Tenn. 1999). Consequently, the Court of Criminal Appeals' decision with respect to the felony reckless endangerment conviction is reversed, and that conviction is reinstated.

Harold Woodroof, pro se v. State of Tennessee
M2003-01020-CCA-R3-PC
Authoring Judge: Judge Robert W. Wedemeyer
Trial Court Judge: Judge J. Randall Wyatt, Jr.

The Petitioner, Harold Woodroof, appeals the trial court's denial of his petition for post-conviction 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. The Petitioner failed to file his post-conviction petition within the one year statute of limitations. Accordingly, the State's motion is granted and the judgment of the trial court is affirmed.

State of Tennessee v. Tonya Jennings
M2002-01190-SC-R11-CD
Authoring Judge: Justice William M. Barker
Trial Court Judge: Judge Steve R. Dozier

In a bench trial, the defendant was found not guilty by reason of insanity of the charge of stalking. Following her release from judicial hospitalization, she moved to have her public records in this case expunged under Tennessee Code Annotated section 40-32-101(a)(1). Because the pertinent statutory language only provides for expungement upon "a verdict of not guilty returned by a jury," we find that the defendant is not entitled to expungement and affirm the judgment of the Court of Criminal Appeals.