State of Tennessee v. Darry Miller
W2003-01511-CCA-R3-CD
Authoring Judge: Judge James Curwood Witt, Jr.
Trial Court Judge: Judge Joseph H. Walker, III

Darry Miller appeals from his Lauderdale County Circuit Court conviction of delivery of a Schedule II controlled substance less than 0.5 grams. He claims that the evidence presented at trial is insufficient to sustain a conviction. We disagree and affirm.

State of Tennessee v. Gregory Morrow
W2003-02401-CCA-R3-CD
Authoring Judge: Judge Norma McGee Ogle
Trial Court Judge: Judge Bernie Weinman

The appellant, Gregory Morrow, was found guilty by a jury in the Shelby County Criminal Court of possessing 300 grams or more of cocaine with the intent to sell, possessing 300 grams or more of cocaine with the intent to deliver, and two counts of possessing marijuana. The appellant received a total effective sentence of fifteen years incarceration in the Tennessee Department of Correction. On appeal, the appellant challenges the trial court’s ruling on his motion to suppress and raises complaints regarding the application of Rule 41(g) of the Tennessee Rules of Criminal Procedure. Upon our review of the record and the parties’ briefs, we affirm the judgments of the trial court, but we remand for a merger of the appellant’s two cocaine convictions and his two marijuana convictions.

Opal J. Brock v. Meigs County, Tennessee
E2003-02114-COA-R3-CV
Authoring Judge: Presiding Judge Herschel P. Franks
Trial Court Judge: Judge Russell E. Simmons, Jr.

Plaintiff sustained injuries from a fall in the court house and sued the County for maintaining a dangerous stairway. Following trial, the Court entered a Judgment for defendant. We affirm.

Tina Marie Weninger v. Jerry Craig Weninger
M2003-02018-COA-R3-CV
Authoring Judge: Judge David R. Farmer
Trial Court Judge: Judge Leonard W. Martin

This appeal arises from a divorce action. The trial court awarded primary residential custody to mother and standard visitation to father. We affirm.

Wendy King (Graham) v. Timothy King
M2002-01202-COA-R3-CV
Authoring Judge: Judge David R. Farmer
Trial Court Judge: Judge Charles D. Haston, Sr.

The trial court denied Mother's petition to change custody of the parties' minor children from Father to Mother. We affirm.

State of Tennessee v. Eric Gilmore
E2003-02568-CCA-R3-CD
Authoring Judge: Judge J. Curwood Witt, Jr.
Trial Court Judge: Judge Ray L. Jenkins

The Knox County Criminal Court denied the motion of the defendant, Eric Eugene Gilmore, to set aside his 2001 guilty pleas to a number of charges. We affirm.

Joann Potts, et al., v. Walter Ansel Rogers, Jr., et al.
E2003-00524-COA-R3-CV
Authoring Judge: Sr. Judge William H. Inman
Trial Court Judge: Chancellor W. Frank Brown, III

In 1987 six (6) siblings acquired by intestate succession, a 115-acre tract, mostly flood plain unimproved land bordering North Chickamauga Creek near Hixson, Tennessee. Five (5) of the owners filed a partition action against their brother whose residence adjoined an upland portion of the 115 acres that was not subject to flooding. A consent judgment was entered in 1998 that the entire acreage would be sold and the net proceeds divided equally among the six (6) owners. But the consent judgment also provided that if no offer to purchase for $1,734,150.00 was received, the property would not be sold without unanimous consent or upon further order of the court. Four years later the North Chickamauga Creek Conservancy offered $800,000.00 which was accepted by the plaintiffs, and disdained by the defendant, who apparently wanted the upland tract of 19 acres adjoining his residence as his partitioned share. The court ordered the property sold for partition. We modify as to the real estate commission and affirm.

State of Tennessee v. Neal Armour
E2003-02907-CCA-R3-CD
Authoring Judge: Judge J. Curwood Witt, Jr.
Trial Court Judge: Judge Rebecca J. Stern

The defendant, Neal Levone Armour, appeals the Hamilton County Criminal Court's revocation of probation. Because the record supports the trial court's actions, we affirm.

Yvonne Foster v. Mollis Wilson, et al.
W2003-00872-COA-R3-CV
Authoring Judge: Presiding Judge W. Frank Crawford
Trial Court Judge: Judge Kay S. Robilio

This case arises out of an automobile accident. Appellant appeals from a Judgment entered on a jury verdict. The jury found the two Defendants to each be 50% at fault and Plaintiff to be 0% at fault. The jury awarded $0 damages to the Plaintiff. We find that the trial court did not err in its duty as thirteenth juror and that there is material evidence to support the verdict. We affirm.
 

James Bell, Jr. v. State of Tennessee
W2003-02463-CCA-R3-CD
Authoring Judge: Judge Alan E. Glenn
Trial Court Judge: Judge R. Lee Moore Jr.

The petitioner, James Bell, Jr., entered pleas of guilty to a number of offenses in the Shelby County Criminal Court in 1997 and 2000, and subsequently filed a petition for writ of habeas corpus in the Lake County Circuit Court, asserting that his convictions were void and his sentences illegal. The court denied the petition without a hearing, and this appeal followed. We affirm the denial of the petition, but remand to the Shelby County Criminal Court for a hearing to identify what disposition was intended as to each of the indictments and entry of corrected judgments to reflect those determinations

Memphis Bonding Company v. Willie James Bassett
W2002-00472-CCA-R3-CO
Authoring Judge: Presiding Judge Gary R Wade
Trial Court Judge: Judge Bernie Weinman

The appellant, Memphis Bonding Company, appeals the trial court's order requiring a partial refund to the defendant, Willie James Bassett. Because the governing statute does not permit a refund under the circumstances of this case, the judgment of the trial court is reversed.

State of Tennessee v. Robert L. Leach, Jr.
M2001-01421-SC-DDT-DD
Authoring Judge: Justice Janice M. Holder
Trial Court Judge: Judge J. Randall Wyatt, Jr.

In this capital case, the defendant, Robert L. Leach, Jr., was convicted of two counts of first degree premeditated murder, two counts of first degree felony murder, one count of especially aggravated robbery, and one count of aggravated rape. The trial court merged the felony murder convictions with the premeditated murder convictions. The jury imposed sentences of death for the two murder convictions. The trial court imposed two consecutive sentences of twenty-five years for the especially aggravated robbery and aggravated rape convictions, which were ordered to run consecutively to the two death sentences. The Court of Criminal Appeals affirmed Leach’s convictions and sentences. On automatic appeal under Tennessee Code Annotated section 39-13- 206(a)(1), we designated the following issues for oral argument:1 1) whether the evidence is insufficient to support convictions for premeditated murder and felony murder; 2) whether the trial court erred in prohibiting Leach from presenting a witness to discredit the testimony of Joseph Walker; 3) whether the trial court committed reversible error in instructing the jury to consider evidence of Leach’s attack on Dorianne Brown to “complete the story”; 4) whether the death penalty is precluded in this case under Apprendi v. New Jersey, 530 U.S. 466 (2000), because aggravating circumstances were not set out in the indictment; and 5) whether the sentences of death are disproportionate or invalid under the mandatory review of Tennessee Code Annotated section 39-13- 206(c)(1). Having carefully reviewed these issues and the remainder of the issues raised by Leach, we conclude that they do not warrant relief. Accordingly, we affirm the judgment of the Court of Criminal Appeals. Tenn. Code Ann. § 39-13-206(a)(1); Judgment of the Court of Criminal Appeals Affirmed.

State of Tennessee v. Robert L. Leach, Jr. - Concurring/Dissenting
M2001-01421-SC-DDT-DD
Authoring Judge: Justice Adolpho A. Birch, Jr.
Trial Court Judge: Judge J. Randall Wyatt, Jr.

I concur in the conclusion of the majority that Leach’s convictions should be affirmed. As to the sentences of death, however, I continue to adhere to my views that the comparative proportionality review protocol currently embraced by the majority is inadequate to shield defendants from the arbitrary and disproportionate imposition of the death penalty. See Tenn. Code Ann. § 39- 13-206(c)(1)(D) (1995 Supp.). I have repeatedly expressed my displeasure with the current protocol since the time of its adoption in State v. Bland, 958 S.W.2d 651 (Tenn. 1997). See State v. Holton, 126 S.W.3d 845, 872 (Tenn. 2004) (Birch, J., concurring and dissenting); State v. Davidson, 121 S.W.3d 600, 629-36 (Tenn. 2003) (Birch, J., dissenting); State v. Carter, 114 S.W.3d 895, 910-11 (Tenn. 2003) (Birch, J., dissenting); State v. Reid, 91 S.W.3d 247, 288-89 (Tenn. 2002) (Birch, J., concurring and dissenting); State v. Austin, 87 S.W.3d 447, 467-68 (Tenn. 2002) (Birch, J., dissenting); State v. Stevens, 78 S.W.3d 817, 852 (Tenn. 2002) (Birch, J., concurring and dissenting); State v. McKinney, 74 S.W.3d 291, 320-22 (Tenn. 2002) (Birch, J., concurring and dissenting); State v. Bane, 57 S.W.3d 411, 431-32 (Tenn. 2001) (Birch, J., concurring and dissenting); State v. Stout, 46 S.W.3d 689, 720 (Tenn. 2001) (Birch, J., concurring and dissenting); Terry v. State, 46 S.W.3d 147, 167 (Tenn. 2001) (Birch, J., dissenting); State v. Sims, 45 S.W.3d 1, 23-24 (Tenn. 2001) (Birch, J., concurring and dissenting); State v. Keen, 31 S.W.3d 196, 233-34
(Tenn. 2000) (Birch, J., dissenting); State v. Chalmers, 28 S.W.3d 913, 920-25 (Tenn. 2000) (Birch, J., concurring and dissenting); State v. Bland, 958 S.W.2d at 679 (Birch, J., concurring and dissenting). As previously discussed, I believe that the three basic problems with the current proportionality analysis are that: (1) the proportionality test is overbroad,1 (2) the pool of cases used In my view, excluding from comparison that group of cases in which the 2 State did not seek the death penalty, or in which no capital sentencing hearing was held, frustrates any meaningful comparison for proportionality purposes. See Bland, 958 S.W.2d at 679 (Birch, J., dissenting). 3As I stated in my concurring/dissenting opinion in State v. Godsey, “[t]he scope of the analysis employed by the majority appears to be rather amorphous and undefined expanding, contracting, and shifting as the analysis moves from case to case.” 60 S.W.3d 759, 797 (Tenn. 2001)(Birch, J., concurring and dissenting). -2- for comparison is inadequate,2 and (3) review is too subjective.3 In my view, these flaws undermine the reliability of the current proportionality protocol. See State v. Godsey, 60 S.W.3d at 793-800 (Birch, J., concurring and dissenting). Accordingly, I respectfully dissent from that portion of the majority opinion affirming the imposition of the death penalty in this case.

State of Tennessee v. Sherry Lynn Johnson
M2002-01495-CCA-R3-CD
Authoring Judge: Judge David H. Welles
Trial Court Judge: Judge John H. Gasaway, III

Following a bench trial, the Defendant, Sherry Lynn Johnson, was convicted of assault, a Class A misdemeanor. The trial court placed the Defendant on judicial diversion. In this appeal, the Defendant asserts that the trial court misinterpreted the assault statute and that the evidence is insufficient to support her conviction. Because the Defendant was placed on judicial diversion, no judgment of conviction has been entered, and the Defendant has no appeal as of right under Tennessee Rule of Appellate Procedure 3. Accordingly, the appeal is dismissed.

Cindy R. Lourcey, et al. v. Estate of Charles Scarlett, Deceased
M2002-00995-SC-R11-CV
Authoring Judge: Justice E. Riley Anderson
Trial Court Judge: Judge Clara W. Byrd

We granted review to determine (1) whether the complaint states a claim for intentional infliction of emotional distress when it alleges that the defendant’s conduct was outrageous because he shot his wife and then himself in plaintiff Cindy Lourcey’s presence; and (2) whether the complaint states a claim for negligent infliction of emotional distress when it does not allege that Cindy Lourcey was related to the defendant or his wife. The trial court dismissed the complaint for failure to state a claim upon which relief may be granted pursuant to Tennessee Rule of Civil Procedure 12.02(6). The Court of Appeals reversed the trial court’s judgment after concluding that the complaint states claims for intentional and negligent infliction of emotional distress. After reviewing the record and applicable authority, we hold that the plaintiffs state a claim for intentional infliction of emotional distress because Cindy Lourcey witnessed an “outrageous” act, i.e., the defendant’s shooting of his wife and himself, and that the plaintiffs state a claim for negligent infliction of emotional distress even though Cindy Lourcey is not related to the defendant or his wife. Accordingly, we affirm the Court of Appeals’ judgment. Tenn. R. App. P. 11 Appeal by Permission; Judgment of the Court of Appeals Affirmed; Case Remanded to Circuit Court
 

Cindy R. Lourcey v. Estate of Charles Scarlett, Deceased - Concurring
M2002-00995-SC-R11-CV
Authoring Judge: Justice Janice M. Holder
Trial Court Judge: Judge Clara W. Byrd

JANICE M. HOLDER, J., concurring.
I agree with the majority that the complaint alleges sufficient facts to withstand a motion to
dismiss. I write separately, however, because I believe the majority’s analysis unnecessarily creates
confusion by using foreseeability in analyzing both duty and proximate causation.

State of Tennessee v. Alvin Dobbins, Jr.
M2003-03062-CCA-R3-CD
Authoring Judge: Judge David H. Welles
Trial Court Judge: Judge Steve R. Dozier

The Defendant appeals from an order of the trial court which found him to be in violation of the terms of his community corrections sentence. The trial court ordered that the remainder of the Defendant's sentence be served in confinement. On appeal, the Defendant argues that the trial court abused its discretion in ordering that the Defendant serve his sentence in confinement rather than allowing him to continue in the community corrections program. We affirm the judgment of the trial court.

State of Tennessee v. Roger K. Jones
E2003-02501-CCA-R3-HC
Authoring Judge: Judge Joseph M. Tipton
Trial Court Judge: Judge E. Eugene Eblen

The petitioner, Roger K. Jones, appeals the order dismissing his petition for writ of habeas corpus. 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 petition fails to establish either a void judgment or an expired sentence. Accordingly, the state's motion is granted and the judgment of the trial court is affirmed.

Tony Ivens v. State of Tennessee
E2003-02216-CCA-R3-CD
Authoring Judge: Judge Thomas T. Woodall
Trial Court Judge: Judge Carroll L. Ross

Defendant, Tony Ivens, appeals the trial court's denial of his motion for new trial. Following a jury trial, Defendant was convicted of sexual battery. Defendant was fined $3,000 and sentenced to serve two years with all but 90 days to be suspended and served on probation. Defendant filed a motion for new trial or mistrial, alleging that one of the jurors failed to disclose during voir dire that she was related to a staff member of the Monroe County Sheriff's Department. The trial court denied the motion, and Defendant appeals. After a careful review of the record, we affirm the judgment of the trial court.

Derrick Bryant v. State of Tennessee
E2003-02911-CCA-R3-PC
Authoring Judge: Judge David H. Welles
Trial Court Judge: Judge James E. Beckner

The Defendant, Derrick Bryant, was convicted by a jury of first degree premeditated murder. His conviction was affirmed on direct appeal. See State v. Derrick Bryant, No. E2000-01835-CCA-MR3-CD, 2001 WL 1187916 (Tenn. Crim. App., Knoxville, Oct. 9, 2001). In this post-conviction proceeding, the Defendant alleges that he received ineffective assistance of counsel. After a hearing, the trial court denied relief. We affirm the judgment of the trial court.

One Commerce Square, LLC v. Ausa Life Insurance Company, Inc.
CH-01-1015-3
Authoring Judge: Presiding Judge W. Frank Crawford
Trial Court Judge: Chancellor Arnold B. Goldin

Appellant purchaser of commercial building sued appellee seller to recover payment of a tenant improvement allowance made by the appellee to a tenant pursuant to a lease agreement assigned to the purchaser as part of the transaction. The trial court granted appellee seller summary judgment based upon a construction of the terms of the assignment transferring the lease to the purchaser. Appellant purchaser appeals. We affirm.
 

Charles Rodger Wilson v. National Healthcare
M2003-01195-WC-R3-CV
Authoring Judge: Roger A. Page, Sp. J.
Trial Court Judge: Tom E. Gray, Chancellor
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 5- 6-225(e)(3) for hearing and reporting to the Supreme Court of the findings of fact and conclusions of law. In this appeal, the employer contends that the trial court erred in holding that the employee proved by a preponderance of the evidence that his complaints of mid-back pain were caused by a November 5, 2 work-related accident. The employer also contends that the trial court erred by not holding that the instant case is barred as a result of release language in a December 13, 2 court-approved workers' compensation settlement agreement that concluded a previous claim by this same employee. We find no error and affirm the judgment of the trial court. Tenn. Code Ann. _ 5-6-225(e) (23 Supp.) Appeal as of Right; Judgment of the Chancery Court Affirmed ROGER A. PAGE, SP. J., in which ADOLPHO A. BIRCH, JR., J. and RITA STOTTS, SP. J., joined. M. Bradley Gilmore and Kathleen W. Smith, Nashville, Tennessee for appellant, National Healthcare Corporation. Thomas Jay Martin, Jr., Gallatin, Tennessee, for appellee, Charles Rodger Wilson. MEMORANDUM OPINION STANDARD OF REVIEW The review of the findings of the trial court is de novo upon the record of the trial court, accompanied by a presumption of the correctness of the finding, unless the preponderance of the evidence is otherwise. Tenn. Code. Ann. _ 5-6-225 (e)(2); Stone v. City of McMinnville, 896 S.W. 2d 548, 55 (Tenn. 1995). This Court is not bound by the trial court's findings, but instead conducts its own independent examination of the record to determine where the preponderance lies. Galloway v. Memphis Drum Serv., 822 S.W. 2d 584, 586 (Tenn. 1981). FACTUAL BACKGROUND Charles Rodger Wilson was forty-seven years old at the time of trial. He had worked primarily as a cook, kitchen manager, and executive chef since graduating from high school. Wilson had two previous workers' compensation claims prior to the November 5, 2 injury. Each of those claims resulted in a court-approved settlement. Wilson was injured on November 5, 2 when a box of frozen food fell on his back while he was inside the employer's walk-in freezer. Wilson was treated at the Middle Tennessee Family Wellness Center by Dr. Michael R. Bernui on several occasions in November, December and January 21. The first office visit with Dr. Bernui was on November 6, 2. The treatment by Dr. Bernui continued until January 1, 21. Wilson was then referred to Dr. Arthur R. Cushman. Wilson saw Dr. Cushman for the first time on February 16, 21. Dr. Cushman treated Wilson approximately six times with the last office visit occurring on March 29, 22. Dr. Cushman and Dr. Bernui did not relate Wilson's mid-back injury to the November 5, 2 accident. However, Dr. Cushman stated in a letter, "We know he had a previous thoracic disc herniation, again that was almost certainly caused by the trauma he described." An independent medical evaluation was performed by Dr. David W. Gaw on November 2, 22. Dr. Gaw has specialized in orthopedics since 1973. He examined all of the medical records concerning the employee's mid-back injury before examining him. Dr. Gaw also read the depositions of Dr. Cushman and Dr. Bernui before examining Wilson. After interviewing and examining Wilson, Dr. Gaw specifically related the mid-back injury to the November 5, 2 accident and gave Wilson a rating of 5% permanent partial impairment to the body as a whole. CAUSATION

Richard Hickey v. David Mills, Warden
E2003-01520-CCA-R3-HC
Authoring Judge: Judge J. Curwood Witt, Jr.
Trial Court Judge: Judge E. Eugene Eblen

The petitioner, Richard Hickey, appeals the Morgan County Criminal Court's dismissal of his petition for habeas corpus relief. We affirm.

State of Tennessee v. Joseph Carl Ganus
W2003-02589-CCA-R3-CD
Authoring Judge: Judge David G. Hayes
Trial Court Judge: Judge C. Creed McGinley

The Appellant, Joseph Carl Ganus, appeals the sentencing decision of the Hardin County Circuit Court. Ganus pled guilty to Violation of the Motor Vehicle Habitual Offender (MVHO) statute and DUI, third offense. Following a sentencing hearing, Ganus was sentenced to four years confinement in the Department of Correction for violation of the MVHO statute and to eleven months and twenty-nine days for DUI, third offense.1 These sentences were ordered to be served concurrently. On appeal, Ganus argues that the trial court erred: (1) by not granting him a non-incarcerative sentence and (2) by improperly weighing enhancing factors in establishing the length of his sentence. After review of the record, we find no error and affirm the judgment of the trial court.

Woodrow Jerry Hawkins v. Case Management, Incorporated, et al.
W2004-00744-COA-R3-CV
Authoring Judge: Judge W. Frank Crawford
Trial Court Judge: Judge Karen R. Williams

This is an appeal from the trial court’s grant of Defendants/Appellees’ motion for summary judgment. Under T.C.A. §40-38-108, the trial court found that Defendants/Appellees were immune from prosecution for their alleged failure to properly inform Plaintiff/Appellant of his possible right to recover from the Tennessee Criminal Injury Compensation Fund. We affirm.