State of Tennessee v. David Robert Cook
W2003-00441-CCA-R3-CD
Authoring Judge: Judge Thomas T. Woodall
Trial Court Judge: Judge Jon Kerry Blackwood

Defendant, David Robert Cook, was indicted for one count of second degree murder, a Class A felony, and one count of attempted second degree murder, a Class B felony. Following a jury trial, the jury found Defendant not guilty of the indicted offenses but guilty of one count of voluntary manslaughter, a Class C felony, and one count of reckless aggravated assault, a Class D felony. The trial court sentenced Defendant as a Range I, standard offender, to three years imprisonment for the voluntary manslaughter conviction and two years imprisonment for the aggravated assault conviction. The trial court ordered Defendant’s sentence for aggravated assault to run concurrently with his sentence for voluntary manslaughter. On appeal, Defendant argues that (1) the evidence was insufficient to support his convictions; (2) the trial court erred in refusing to grant a mistrial because of prosecutorial misconduct during closing argument; and (3) the trial court erred in not sentencing Defendant as an especially mitigated offender. The trial court did not err by refusing to grant a mistrial, the transcript of the sentencing hearing is not included in the appellate record and sentencing issues are therefore waived, and the evidence is sufficient to support Defendant’s conviction for voluntary manslaughter. Although not raised on appeal, we further conclude that the trial court committed plain error when it instructed the jury that reckless aggravated assault was a lesser included offense of attempted second degree murder. Our supreme court has explicitly held that reckless aggravated assault is not a lesser included offense of attempted second degree murder. State v. Rush, 50 S.W.3d 424, 431 (Tenn. 2001). Accordingly, we are obligated to reverse Defendant’s conviction for reckless aggravated assault and remand for proceedings consistent with this opinion. We affirm Defendant’s conviction and sentence for voluntary manslaughter.

Michael E. Mills, Pro Se v. Warden Glenn Turner
W2003-01908-CCA-R3-HC
Authoring Judge: Judge John Everett Williams
Trial Court Judge: Judge Jon K. Blackwood

The Petitioner, Michael E. Mills, 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 ground entitling him to habeas corpus relief. Accordingly, the State's motion is granted and the judgment of the trial court is affirmed.

State of Tennessee v. Andre Edward Hicks
M2003-00818-CCA-R3-CD
Authoring Judge: Judge David G. Hayes
Trial Court Judge: Judge Cheryl A. Blackburn

The Appellant, Andre Edward Hicks, was convicted after a trial by jury of aggravated robbery and was sentenced as a persistent offender to thirty years in the Department of Correction. On appeal, Hicks raises the following issues for our review: (1) whether the evidence was sufficient to support the verdict and (2) whether his sentence was proper. After a review of the record, the judgment of the Davidson County Criminal Court is affirmed.

James Gordon Freeman v. State of Tennessee
M2003-00899-CCA-R3-PC
Authoring Judge: Judge Thomas T. Woodall
Trial Court Judge: Judge Seth W. Norman

Petitioner, James Gordon Freeman, filed a pro se petition for post-conviction relief, which was amended by appointed counsel. Following an evidentiary hearing, the trial court dismissed the petition. On appeal, Petitioner argues that the post-conviction court erred in finding that Petitioner received effective assistance of counsel at trial. After a thorough review of the record, we affirm the judgment of the post-conviction court.

State of Tennessee v. Michael W. Gibson
E2003-01381-CCA-R3-CD
Authoring Judge: Judge Alan E. Glenn
Trial Court Judge: Judge James B. Scott, Jr.

The defendant was convicted of assault, a Class A misdemeanor, for punching a police officer and was sentenced to eleven months, twenty-nine days, with sixty days to serve before applying for probation. He raises seven issues on appeal: (1) whether the trial court erred in admitting a tape recording of the officer's call to dispatch; (2) whether the trial court erred in failing to instruct the jury to disregard the dispatcher's testimony; (3) whether the trial court erred in denying the defendant's motion for a mistrial based on the officer's testimony about her recognition of the defendant; (4) whether the trial court erred in denying the defendant's request to publish a second officer's supplemental report to the jury; (5) whether the trial court erred in allowing defense witnesses to be impeached with evidence of other crimes; (6) whether trial counsel provided ineffective assistance by withdrawing his request to cross-examine police officers regarding prior complaints against them of excessive force; and (7) whether the evidence was sufficient to sustain the defendant's conviction. We find no reversible error in the trial court's evidentiary rulings and conclude that the defendant failed to meet his burden of demonstrating ineffective assistance of counsel. We further conclude there was ample evidence to sustain the defendant's conviction for assault. Accordingly, we affirm the judgment of the trial court.

Tiffany Reed v. Christopher Kidd
M2003-00650-COA-R3-JV
Authoring Judge: Judge William B. Cain
Trial Court Judge: Judge L. Raymond Grimes

This custody case involves two parents who have never been married and have not been involved in any prior custody determination regarding the child at issue. Father had never seen the child prior to filing this custody action and had not spoken with Mother since the child's birth in 1992. He was served with a paternity action in November 2001 and adjudicated to be the child's father. On June 4, 2002, he filed this custody action. The trial court determined that custody should remain with Mother and adopted a parenting plan offered by Mother. Father appealed. We affirm the trial court's determination.

State of Tennessee v. Joy Leigh Sandidge
E2003-01189-CCA-R3-CD
Authoring Judge: Judge Alan E. Glenn
Trial Court Judge: Judge R. Jerry Beck

The defendant, JoyLeigh Sandidge, pled guilty to two counts of vehicular assault and one count each of DUI, fourth offense, leaving the scene of an accident involving injury, and failure to yield. The trial court imposed an effective sentence of two years, with the court to make a determination as to alternative sentencing after the defendant had served the mandatory 150 days in jail for her DUI, fourth offense, conviction. Subsequently, the trial court denied alternative sentencing and ordered the defendant to serve the balance of her sentence, and the defendant argues on appeal that the trial court erred in this determination. Following our review, we reverse the judgments of the trial court and remand for the defendant to be placed on probation for the remainder of her sentence.

Brenda J. Sneed v. Thomas G. Stovall, M.D., et al.
W2003-00779-COA-R3-CV
Authoring Judge: Judge David R. Farmer
Trial Court Judge: Judge Karen R. Williams

Plaintiff filed suit against Defendants alleging that Defendants committed medical malpractice. At the conclusion of the trial, the jury returned a verdict in favor of Defendants. Plaintiff appeals the trial court’s limiting Plaintiff’s voir dire concerning his medical expert, denial of Plaintiff’s renewed motion in limine, refusal to include proposed jury instructions, and refusal to strike a third party opinion from the deposition of Plaintiff’s expert. We affirm the decisions of the trial court.
 

State of Tennessee v. Clifford Rogers
W2003-01375-CCA-R3-CD
Authoring Judge: Judge Thomas T. Woodall
Trial Court Judge: Judge Joseph B. Dailey

Following a jury trial, Defendant, Clifford Rogers, was convicted of premeditated first degree murder, felony murder, and aggravated assault. Defendant received an effective sentence of life plus fifteen years for his convictions. In this appeal as of right, Defendant challenges the sufficiency of the convicting evidence and the trial court’s order of consecutive sentencing. Because the trial court erroneously entered judgments of convictions for the offenses of premeditated first degree murder and felony murder, rather than merging the two offenses at sentencing, we merge Defendant’s conviction for felony murder with his conviction for premeditated murder and remand this case for entry of judgments consistent with this opinion. In all other respects, the judgments of the trial court are affirmed.

Jennifer Lee Hewson v. Kerry David Hewson
M2002-02785-COA-R3-CV
Authoring Judge: Presiding Judge William C. Koch, Jr.
Trial Court Judge: Judge Muriel Robinson

This appeal involves the financial aspects of a divorce decree filed by the Circuit Court for Davidson County. The husband takes issue with the apportionment of the marital debts, the amount of child support, and the award of spousal support. We affirm the trial court.

Brenda Lee Chastain v. Ricky Lavon Chastain
M2003-02016-COA-R3-CV
Authoring Judge: Presiding Judge William C. Koch, Jr.
Trial Court Judge: Judge Leonard W. Martin

This appeal arises from a divorce proceeding involving a state prisoner and his wife. After the wife filed her divorce complaint in the Chancery Court for Cheatham County, the prisoner counterclaimed for divorce and served interrogatories on his wife regarding their separate and marital property. Two motions to compel the wife to answer these interrogatories were unresolved when the trial court conducted a bench trial in the prisoner’s absence and granted the wife a divorce. The prisoner asserts on this appeal that the trial court erred by failing to dispose of his discovery motions prior to trial. We agree and, therefore, vacate the portions of the divorce decree pertaining to the division of the marital estate.

State of Tennessee v. Stevan Craig Mullen
M2003-1123-CCA-R3-CD
Authoring Judge: Judge Thomas T. Woodall
Trial Court Judge: Judge Buddy D. Perry

Defendant, Stevan Craig Mullen, was indicted by the Franklin County Grand Jury for driving with an alcohol concentration of .10 or more, in violation of Tenn. Code Ann. § 55-10-401, and for reckless driving, in violation of Tenn. Code Ann. § 55-10-205. Following a jury trial, Defendant was convicted of driving with an alcohol concentration of .10 or more and acquitted of reckless driving. Defendant was sentenced to eleven months and twenty-nine days, with all but forty-eight hours of his sentence suspended. In addition, his driver’s license was revoked for one year, and he was ordered to perform 100 hours of public service work and fined $350.00. In this appeal as of right, Defendant challenges the trial court’s denial of his motion to suppress his breathalyzer test results. After reviewing the record, we affirm the judgment of the trial court.

Tracie Marie Shipwash, et al., v. Meadowood Apartments
E2003-01528-COA-R3-CV
Authoring Judge: Judge Charles D. Susano, Jr.
Trial Court Judge: Judge Dale C. Workman

This is a premises liability case. Tracie Marie Shipwash and Dennis Marine sued Meadowood Apartments ("Meadowood") to recover for damage done to their respective vehicles when a tree located near a parking area at the apartment complex fell on the vehicles during a severe storm. At the bench trial below, the plaintiffs offered the testimony of a tree expert, who opined that his examination of photographs of the fallen tree revealed signs of deterioration and that the tree should have been removed prior to the storm. The trial court held that the tree removal service hired by Meadowood to make an annual inspection of the apartment property was Meadowood's agent, and that, as a consequence of this fact, Meadowood is liable based upon its imputed constructive notice of the dangerous condition created by the tree's condition. Meadowood appeals. We reverse.

Phil Mitchell v. John Van Zyll, et al.
E2003-01594-COA-R3-CV
Authoring Judge: Judge David Michael Swiney
Trial Court Judge: Judge Russell E. Simmons, Jr.

Phil Mitchell ("Plaintiff") sued his next-door neighbors, John Van Zyll ("Van Zyll") and Ann Furlong ("Furlong"), for malicious prosecution. Plaintiff alleged that Van Zyll and Furlong "caused to be issued against [him] a criminal warrant for his arrest, alleging aggravated assault and reckless endangerment." The criminal charges against Plaintiff were dismissed. Defendants filed a motion for summary judgment, which the Trial Court granted as to Furlong but denied as to Van Zyll. Plaintiff appeals the Court's ruling in favor of Furlong. We affirm.

Tinker-Watkins Sand & Gravel, Inc. v. Michael W. Parsons
W2003-02048-COA-R3-CV
Authoring Judge: Presiding Judge Alan E. Highers
Trial Court Judge: Judge C. Creed Mcginley

This case involves a claim for payment from Defendant for goods and services provided by Plaintiff to Defendant under an oral contract. Originally, the claim was brought in the General Sessions Court for Decatur County. Defendant first challenged the venue of Decatur County, which was rejected by General Sessions Court. Defendant appealed the judgment of the General Sessions Court to the Circuit Court, which also denied Defendant’s motion to dismiss for improper venue and awarded Plaintiff the amount claimed under the terms of the contract. Defendant appealed to this Court and we affirm.

State of Tennessee v. David Curtis Lynn
M2002-02706-CCA-R3-CD
Authoring Judge: Judge Jerry L. Smith
Trial Court Judge: Judge Robert E. Burch

The appellant, David Curtis Lynn, was convicted of second offense driving under the influence. As a result, he was sentenced to 11 months and 29 days. He was ordered to serve 90 days in jail and the remainder of his sentence on probation. The appellant apparently violated probation sometime in 2001 and, as a result of that violation, the trial court extended his probation by six months. After a hearing on what appears to be a second probation violation, the trial court entered an order revoking the appellant's probation and ordering him to serve his sentence in confinement. On appeal, the appellant argues that the trial court abused its discretion in revoking his probation and that his sentence had expired at the time the trial court revoked his probation. We affirm the trial court's revocation of the appellant's probation and decline to address the issue regarding the expiration of the appellant's sentence due to an inadequate and incomplete record on appeal.

State of Tennessee v. William C. Tomlin, Jr.
M2003-01746-CCA-R3-CD
Authoring Judge: Judge David H. Welles
Trial Court Judge: Judge Timothy L. Easter

The Defendant, William C. Tomlin, Jr., was convicted by a jury of aggravated burglary and theft over $1,000. Following a sentencing hearing, the trial court imposed consecutive sentences of fourteen years for the aggravated burglary and ten years for the theft. In this appeal, the Defendant argues that the trial court erred by denying two evidentiary motions, that the evidence is insufficient to support the convictions, and that the trial court erred in sentencing. We modify the aggravated burglary sentence to twelve years and affirm the judgments of the trial court in all other respects.

State of Tennessee v. Michael A. Moore
W2002-03122-CCA-MR3-CD
Authoring Judge: Judge John Everett Williams
Trial Court Judge: Judge Jon Kerry Blackwood

Following a bench trial in general sessions court, the defendant was convicted of DUI. On the same day, he filed notice of appeal to the circuit court. The circuit court judge’s administrative assistant advised the defendant by letter to appear before the court to set a trial date. The defendant failed to appear as scheduled, and the circuit court dismissed the appeal. The defendant now appeals the circuit court’s dismissal. Because the record does not reveal any notice to or participation by appointed counsel at the circuit court level, we reverse the judgment of the circuit court and remand for further proceedings.

State of Tennessee v. Charles Wade
W2003-00860-CCA-R3-CD
Authoring Judge: Judge J. Curwood Witt, Jr.
Trial Court Judge: Judge Jon Kerry Blackwood

A Fayette County jury convicted the defendant of promoting prostitution. The trial court sentenced the defendant to five years’ incarceration as a Range III persistent offender. On appeal, the defendant attacks the sufficiency of the evidence and his sentence. We discern no error and affirm the judgment of the trial court.

State of Tennessee v. Elroy Gaines
W2003-01442-CCA-R3-CD
Authoring Judge: Judge Joe G. Riley
Trial Court Judge: Judge Chris B. Craft

A Shelby County jury convicted the defendant of aggravated sexual battery. The trial court
sentenced the defendant as a career offender to thirty years. The defendant contends on appeal that the evidence is insufficient to support his conviction. We affirm the judgment of the trial court.

State of Tennessee v. Finus Rodgers
W2003-01844-CCA-R3-CD
Authoring Judge: Judge J. Curwood Witt, Jr.
Trial Court Judge: Judge Chris B. Craft

A Shelby County jury convicted the defendant, Finus Rodgers, of aggravated robbery. Following a sentencing hearing, the trial court sentenced the defendant, as a Range I standard offender, to ten years confinement in the Department of Correction. On appeal, the defendant argues that insufficient evidence exists in the record to support his conviction. Our review convinces us that the evidence is legally sufficient, and we affirm the defendant’s aggravated robbery conviction.

Robert W. Kelley v. Lumbermens Mutual Casualty
M2003-00773-WC-R3-CV
Authoring Judge: Howell N. Peoples, Special Judge
Trial Court Judge: John W. Rollins, Chancellor
This workers' compensation appeal has been referred to the Special Workers' Compensation Appeals Panel in accordance with Tenn. Code Ann. _ 5-6-225(e) for hearing and reporting of findings of fact and conclusions of law. The trial court found the claim to be barred by the statute of limitations. We affirm.

Helen M. Ashford v. The Aerostructures Corporation, et al.
M2002-01276-WC-R3-CV
Authoring Judge: Allen W. Wallace, Sr. 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 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 employee had sustained a permanent partial disability of 9% to the body as a whole as a result of the gradual injury she sustained during her employment and that the events on December 7, 1999, aggravated a preexisting lung condition. The trial court awarded workers' compensation benefits in the lump sum amount of $188,632.8, along with certain discretionary costs. The trial court also allowed employer a setoff for medical benefits in the amount of $3,36.37 but disallowed setoff for disability benefits. We find no error and affirm the judgment of the trial court. 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. Stephen W. Elliott, Nashville, Tennessee, for appellants, The Aerostructures Corporation and Travelers Property Casualty. William Edward Farmer, Lebanon, Tennessee, for appellee, Helen M. Ashford. MEMORANDUM OPINION FACTS This cause of action originated from a complaint filed by employee, Helen M. Ashford, on May 26, 2. Employee worked for employer, Aerostructures Corporation, from 1981 until her injury on December 7, 1999. During this period of time employee was responsible for cleaning and painting various airplane structures. As a result, she used paint, acetone, and other solvents on a regular basis. At the time of her injury, employee suffered from a pre-existing lung condition of chronic obstructive pulmonary disease. Employee was also a chronic smoker. On December 7, 1999, employee was working with two other employees, Jerry Keeton and Kay Walker, on an aircraft panel. Employee was shaving rivets when suddenly she and the other employees were overcome by some type of chemical that went into her nose and "burnt [her] lungs." She turned a fan around in an attempt to blow the chemicals away from her. She and fellow employee, Kay Walker, then went outside the building. Employee stayed outside approximately fifteen to twenty minutes before going back inside to resume her work. Employee stated that she had difficulty breathing and had to go back outside more times to get away from the fumes. On December 8, 1999, employee did not go to work. When employee returned to work on December 9, 1999, she was once again overcome by dust and fumes. Employee was taken by fellow employees to the nurse's station. Employee went to the hospital and later to her family physician, Dr. Bachstein. Dr. Bachstein testified that his findings on December 13, 1999, were consistent with someone who had encountered chemical fumes and breathed them into their lungs. Employee returned to work in January 2, worked only a few days and has not worked since. Employee's family doctor, Dr. Bachstein, later referred her to a pulmonary specialist, Dr. Frederick Dow. Dr. Dow determined that employee had a permanent lung condition related to her exposure to fumes in December 1999. He testified that the fume incident more than likely substantially aggravated her preexisting lung condition. He informed employee that she should not return to work where she would be exposed to smoke, fumes, or vapors. ANALYSIS Employee's treating physicians, Dr. James Bachstein and Dr. Frederick Dow, both testified that employee had a prior lung condition of chronic obstructive pulmonary disease. They testified that she was working regularly and the events of December 7, 1999, aggravated and exacerbated her condition, and except for this incident, employee would have continued to work for several more years. Dr. James D. Snell, Jr., performed an independent medical evaluation for employer and disagreed with the findings of Dr. Bachstein and Dr. Dow. However, Dr. Snell acknowledged that fumes at employee's work could have aggravated her previous lung condition. Obviously, the trial court accepted the testimony of the treating physicians. Appellate review is de novo upon the record of the trial court, accompanied by a presumption of the 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.

Tony Bilbrey v. Kenneth O. Lester Co., Inc.
M2003-00649-WC-R3-CV
Authoring Judge: John A. Turnbull, Sp. J.
Trial Court Judge: The Hon. J. O. Bond, Judge
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) to hear and report to the Supreme Court Findings of Fact and Conclusions of Law. The trial court found that the employer had made voluntary medical payments within one year of the filing of suit; that the statute of limitations had not expired; and that the plaintiff suffered a work related back injury. The trial court fixed plaintiff's disability at 22-1/2 percent to the body as a whole. We affirm the judgment of the trial court. Tenn. Code Ann. 5-6-225(e) (1999); Appeal as of Right: Judgment of the Circuit Court is affirmed JOHN A. TURNBULL, Sp. J. in which FRANK DROWOTA C.J., and HOWELL N. PEOPLES, SP. J., joined. John R. Lewis, Nashville, Tennessee, for Appellant, Kenneth O. Lester Co., Inc. Anthony E. Hagan, Lebanon, Tennessee, for Appellee, Tony Bilbrey. OPINION Tony Bilbrey filed this workers' compensation action on May 21, 1998. In his complaint, he alleged that he suffered a back injury on November 12, 1996 as he was unloading a truck in Marietta, Georgia, while making a delivery for his employer, Kenneth O. Lester Co., Inc. Bilbrey testified that he reported his injury to one of his dispatcher / supervisors (either Midgett or McKee) immediately upon returning to Tennessee. Bilbrey further testified that his supervisor advised him that Mr. Roberts, the employer's workers' compensation supervisor, would set up an appointment for him with Dr. Roy Johnson. Although Bilbrey testified that he did not speak directly to Roberts, someone with the employer made an appointment for him with Dr. Johnson for December 24, 1996. Bilbrey was advised of and kept this appointment. Bilbrey saw Dr. Johnson "six or eight times." On November 1, 1997, Dr. Johnson referred Bilbrey to Dr. Robert Stein, an orthopedic surgeon. Dr. Johnson's medical records indicated that the employer had authorized treatment and that Bilbrey's medical bills were paid, some by the employer and some by Kemper, the employer's workers' compensation insurer. Dr. Stein saw Mr. Bilbrey for an orthopedic consultation on November 17, 1997. Dr. Stein found no compression fracture but believed that Bilbrey was symptomatic from an acute nerve impingement. From the history conveyed by the patient, Dr. Stein related Bilbrey's condition to the November, 1996 injury. Dr. Stein fixed Bilbrey's impairment at three percent to the body as a whole. Mr. Bilbrey was later treated by Dr. Roy Terry, an orthopedic surgeon in Lebanon, who found a compression fracture of L5-S1, which he also related by history, to the November, 1996 injury. Dr. Terry assigned Bilbrey a permanent impairment rating of fifteen percent to the body. Bilbrey's testimony that he was injured on November 12, 1996 sharply conflicted with the testimony of his co-driver, Randy Short. The trip logs indicate that Short accompanied Bilbrey on his deliveries to Marietta, Georgia on November 12, 1996. Short remembered no fall or apparent injury suffered by Bilbrey during this trip, but testified that Bilbrey had complained that "his back was bothering him from cutting some cedar trees or something on his place." Bilbrey's testimony that he reported the injury to Midgett or McKee also conflicted with the testimony of each of those supervisors. Each testified that Bilbrey did not report an injury and that they made no arrangement for a doctor's appointment for Bilbrey. Roberts, the employer's workers' compensation supervisor, also denied making a medical appointment for Bilbrey or authorizing his treatment. He conceded, however, that someone from Lester may have authorized treatment.

Belinda Kullman Rhoads v. Christopher Kullman, Sr. - Dissenting
M2002-02716-COA-R3-CV
Authoring Judge: Presiding Judge William C. Koch, Jr.
Trial Court Judge: Chancellor Leonard W. Martin

I respectfully disagree with the court’s conclusion that Ms. Rhoads is not entitled to Tenn. R. Civ. P. 60.02(1) relief from the June 26, 2002 order removing her children from her custody. Her lawyer mishandled her case in three significant ways. First, he set the hearing on his motion to withdraw as Ms. Rhoads’s counsel on the same day as the final custody hearing. Second, he told Ms. Rhoads that the case would most likely be continued until August 2002 after his motion was granted. Third, he did not tell Ms. Rhoads that her presence was required at the June 25, 2002 hearing.