State of Tennessee v. Mila Shaw
W2001-02430-CCA-R3-CD
Authoring Judge: Judge John Everett Williams
Trial Court Judge: Judge Chris B. Craft

The defendant was found guilty by a jury of theft of property over ten thousand dollars ($10,000) and sentenced to four years and six months in the county workhouse. She contends the evidence was insufficient to sustain the conviction. We affirm the judgment of the trial court.

E2002-0445-COA-R3-CV
E2002-0445-COA-R3-CV
Trial Court Judge: William H. Inman

State of Tennessee v. Robert James Yoreck, III
M2001-02448-CCA-R3-CD
Authoring Judge: Judge David G. Hayes
Trial Court Judge: Judge John H. Gasaway, III

The Appellant, Robert James Yoreck, III, was indicted by a Montgomery County grand jury for rape, a class B felony. A negotiated plea agreement allowed the Appellant to plead to class C felony aggravated assault. Following a sentencing hearing, the trial court imposed a nine-year sentence. On appeal, Yoreck argues that his sentence was excessive. After review, we find that plain error dictates the conviction be vacated and the case remanded for further proceedings because aggravated assault is not a lesser included offense of rape.

State of Tennessee v. Dennis R. Goltz
M2001-02019-CCA-R3-CD
Authoring Judge: Judge David G. Hayes
Trial Court Judge: Judge Timothy L. Easter

The Appellant, Dennis R. Goltz, was convicted by a Hickman County jury of class E felony theft and sentenced to a term of two years, with sixty days to be served in confinement. On appeal, Goltz raises the following issues: (1) whether the trial court erred by removing a juror during the trial after that juror expressed concern about his ability to be fair and impartial; (2) whether he was denied a fair trial due to prosecutorial misconduct during the State's closing argument; and (3) whether his sentence was excessive based upon the trial court's failure to apply a mitigating factor. After review, we find no error with respect to issues (1) and (3). With regard to issue (2), we find that the prosecutor's closing argument affected the verdict to the prejudice of Goltz. Accordingly, the judgment of the trial court is reversed, and this case is remanded for a new trial.

State of Tennessee v. Kenneth Maurice Vaughn
M2001-03091-CCA-R3-CD
Authoring Judge: Judge Thomas T. Woodall
Trial Court Judge: Judge Steve R. Dozier

Defendant, Kenneth Maurice Vaughn, appeals his convictions in the Davidson County Criminal Court for vandalism and aggravated criminal trespass. At his arraignment, Defendant entered a pro se plea of not guilty. During a hearing on several pretrial motions, at which Defendant proceeded pro se, Defendant signed a written waiver of his right to a trial by jury. After Defendant waived his right to a jury trial, the trial court appointed counsel to represent Defendant and scheduled a bench trial. Following a bench trial, Defendant was convicted as charged, and he received an effective sentence of eleven months and twenty-nine days for each charge, to be served consecutively. In this appeal as of right, Defendant argues that the trial court erred in accepting his jury waiver because he signed the waiver without the assistance of counsel. We conclude that Defendant was not unconstitutionally denied the right to counsel and that he made a valid waiver of his right to a jury trial. We affirm the judgment of the trial court.

Richard D. Sykes v. State of Tennessee
M2001-03115-CCA-R3-PC
Authoring Judge: Judge Robert W. Wedemeyer
Trial Court Judge: Judge Cheryl A. Blackburn

In July 2000, pursuant to a plea agreement, the Petitioner pled guilty to eight felonies: one count of aggravated kidnapping, four counts of aggravated robbery, one count of attempted especially aggravated robbery, one count of attempted first degree murder, and one count of aggravated assault. The trial court sentenced him pursuant to the agreement to an effective sentence of twenty years with a release eligibility percentage of 30% and a concurrent sentence of twelve years with a release eligibility percentage of 100%. The Petitioner subsequently filed a petition for post-conviction relief, and following a hearing on the petition, the trial court denied relief. This appeal ensued. The Petitioner argues on appeal that he received ineffective assistance of counsel when he entered his pleas and that his pleas were thus not entered knowingly or voluntarily. Having reviewed the record, we conclude that the Petitioner was not denied his right to effective representation at the time that he entered his pleas, and we conclude that the Petitioner entered his pleas knowingly, voluntarily, and intelligently. We therefore affirm the trial court's denial of post-conviction relief.

State of Tennessee v. Jack Hackert
M2001-02687-CCA-R3-CD
Authoring Judge: Judge David G. Hayes
Trial Court Judge: Judge Timothy L. Easter

The Appellant, Jack Hackert, appeals the sentencing decision of the Williamson County Circuit Court. The sentence arose from a guilty plea entered by Hackert to: (1) two counts of sale or delivery of marijuana, class E felonies; (2) simple possession of marijuana; and (3) misdemeanor possession of drug paraphernalia. Following a sentencing hearing, Hackert received an effective sentence of two years, eleven months, and twenty-nine days, with one-hundred days to be served in the county jail. On appeal, Hackert raises the single issue of whether the trial court erred by denying full probation. After review, we find no error. Accordingly, the judgment is affirmed.

Tawnya Lynn Duke v. Robert S. Duke
M2001-00080-COA-R3-CV
Authoring Judge: Judge Ben H. Cantrell
Trial Court Judge: Russell Heldman

Michael Glenn Binkley v. E. I. Dupont De Nemours &
M2002-00278-WC-R3-CV
Authoring Judge: Joe C. Loser, Jr., Sp. J.
Trial Court Judge: Robert E. Burch, 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) for hearing and reporting to the Supreme Court of findings of fact and conclusions of law. In this appeal, the claimant insists the evidence preponderates against the trial court's finding that the employee's death did not arise out of and in the course of his employment. As discussed below, the panel has concluded the judgment should be affirmed. Tenn. Code Ann. _ 5-6-225(e) (21 Supp.) Appeal as of Right; Judgment of the Circuit Court Affirmed JOE C. LOSER, JR., SP. J., in which ADOLPHO A. BIRCH, JR., J., and WILLIAM H. INMAN, SR. J., joined. Charles L. Hicks, Camden, Tennessee, for the appellant, Martha Binkley, widow of Michael Glenn Binkley John R. Lewis, Nashville, Tennessee, for the appellee, E. I. Dupont De Nemours & Company MEMORANDUM OPINION The employee, Michael Glenn Binkley, initiated this civil action to recover workers' compensation benefits for a gradually occurring work related lung disease. The employer, Dupont, filed an answer. After the employee died, his widow, Martha Binkley, was substituted as plaintiff and the complaint amended to demand dependent and other death benefits. Despite the existence of sticky procedural questions, the only issue presented for trial was whether the employee's death was caused by an occupational disease resulting from exposure to fibers at work. After a trial on the merits, the trial court dismissed the claim for lack of evidence that the employee's lung disease arose out of and in the course of employment. The substituted plaintiff has appealed. We have reviewed only the issue presented to and adjudicated by the trial court. 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) (21 Supp.). The reviewing court is required to conduct an independent examination of the record to determine where the preponderance of the evidence lies.

Michael Hayes v. Computer Sciences
M2001-01611-COA-R3-CV
Authoring Judge: Judge Ben H. Cantrell
Trial Court Judge: L. Craig Johnson
Michael Hayes sued Aerospace Contractor Support (ACS) for retaliatory discharge. He alleged that he was fired because he had filed a workers' compensation claim against a previous employer. The trial court granted summary judgment to ACS stating that the current law in Tennessee did not allow such a cause of action. We reverse the judgment of the trial court.

State of Tennessee v. Calvin M. Newsom and Eric D. White
M2001-02731-CCA-R3-CD
Authoring Judge: Judge David G. Hayes
Trial Court Judge: Judge Cheryl A. Blackburn

A Davidson County jury convicted the Appellants, Calvin M. Newsom and Eric D. White, of possession of .5 grams or more of cocaine, a Schedule II controlled substance, with intent to sell; possession of alprozolam, a Schedule IV controlled substance, with intent sell; felony possession of a deadly weapon; simple possession of marijuana; and possession of drug paraphernalia. Newsom and White raise one issue for our review, whether the evidence was sufficient to support their convictions. After review, we conclude that the proof is insufficient to establish that Newsom and White possessed the drugs, drug paraphernalia, and weapons found inside the residence. Accordingly, the judgments of conviction are reversed and dismissed.

State of Tennessee v. Theddaeus Medford
W2001-02930-CCA-R3-CD
Authoring Judge: Judge Joe G. Riley
Trial Court Judge: Judge Joseph H. Walker, III

The defendant, Theddaeus Medford, was convicted by a Lauderdale County jury of two counts of the delivery of cocaine and one count of the attempted delivery of cocaine. On appeal, he raises the following issues: (1) whether two peremptory challenges by the state were in violation of Batson v. Kentucky; (2) whether the evidence was sufficient to support the guilty verdicts; and (3) whether the trial court erred in admitting exhibits upon the suggestion of the court reporter after the examination of the witnesses had concluded. We vacate the judgment of the trial court and remand for a hearing on the alleged Batson violation.

State of Tennessee v. Willie Johnson
W2001-02929-CCA-R3-CD
Authoring Judge: Judge John Everett Williams
Trial Court Judge: Judge Donald H. Allen

The defendant appeals his convictions of burglary and theft of property over five hundred dollars ($500.00). The defendant argues that the State did not present sufficient evidence at trial to support his burglary conviction and contends that he did not receive a speedy trial. We affirm the judgments from the trial court.

Douglas Edward Smitley v. Suburban Manufacturing Co.
E2002-00255-WC-R3-CV
Authoring Judge: Byers, Sr.J.
Trial Court Judge: Jeffrey Stewart, 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. The defendant Second Injury Fund appeals the trial court's decision that the Fund is liable for seventy percent of the awarded permanent total disability to the body as a whole. We affirm the decision of the trial court. Tenn. Code Ann. _ 5-6-225(e) (1999) Appeal as of Right; Judgment of the Rhea County Chancery Court is Affirmed BYERS, SR.J., in which BARKER, J., and PEOPLES, SP.J., joined. E. Blaine Sprouse, of Nashville, Tennessee, for Appellant, Second Injury Fund. Michael Augustine Wagner, of Chattanooga, Tennessee, for Appellee, Douglas Edward Smitley. Robert J. Uhorchuk, of Chattanooga, Tennessee, for Appellee, Suburban Manufacturing Company. MEMORANDUM OPINION Review of the findings of fact made by 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). The application of this standard requires this Court to weigh in more depth the factual findings and conclusions of the trial courts in workers' compensation cases. See Corcoran v. Foster Auto GMC, Inc., 746 S.W.2d 452, 456 (Tenn. 1988). Facts The plaintiff was forty-six years of age at the time of trial. He dropped out of high school in the eighth or ninth grade and does not have a graduate equivalency degree. He has worked most of his life in manual labor jobs. In 1997, before the plaintiff began working for the defendant company, he underwent lumbar diskectomy surgery to relieve pressure on a nerve root. He testified that he began having problems with his neck in 1997, caused by a "pinched nerve." Dr. Paul Broadstone, the doctor who performed the surgery, followed up with the plaintiff and reported that he was doing well. After his back surgery, the plaintiff began working for the defendant company, Suburban Manufacturing. He worked as a press operator and metal finisher. He became a permanent employee in October of 1998 after a physical examination which determined that no special accommodations needed to be made for his employment. On January 2, 1999, the plaintiff tripped over an air hose at work, falling to the floor and landing on his hip and shoulder. Suburban acknowledged this accidental injury to the plaintiff's lower back as compensable under workers' compensation law, and provided medical care and treatment for the injury. After the plaintiff's fall, he saw Dr. Broadstone and was later admitted to Erlanger Medical Center. He was ultimately treated by Dr. Scott Hodges for his low back injury of January 2, 1999. Dr. Hodges performed a diskectomy and fusion at the L5-S1 level on June 23, 1999. Dr. Hodges testified that he would assign the plaintiff a permanent physical impairment rating of five percent to the body as a whole and that his date of maximum medical improvement was January 18, 2. Dr. Hodges also testified that he placed permanent work restrictions on the plaintiff of lifting no more than thirty pounds occasionally, twenty pounds frequently, and changing positions every hour. The plaintiff returned to work on September 2, 1999, but reported continued cervical problems that were later found to have been caused by non-union in the 1997 fusion surgery. The plaintiff testified that on October 11 or 12, 1999, while performing a task that required him to bend his neck and look down in a squatted position repetitively, he felt a sudden "pop" in his neck and then the slow onset of a blinding headache. The plaintiff saw both Dr. Hodges and Dr. Broadstone again and he determined that he would not be able to return to work because of the intense neck pain he was having. Because of the continued cervical problems and non-union of the original fusion surgery the plaintiff underwent a second fusion surgery in March of 2. Dr. Broadstone assessed an additional two percent permanent anatomical impairment as a result of the second surgery. Medical Evidence -2-

State of Tennessee v. Joe David Hilliard
W2002-00873-CCA-R3-CD
Authoring Judge: Judge Joe G. Riley
Trial Court Judge: Judge C. Creed Mcginley

The defendant was convicted by a Carroll County jury of simple assault and sentenced by the trial court to eleven months and twenty-nine days, with all jail time suspended except for sixty days in the county jail. The sole issue in this appeal is whether the trial court erred in denying total probation. We affirm the judgment of the trial court.

State of Tennessee v. Antonio D. Richardson
M2005-01161-SC-R11-CD
Authoring Judge: Justice Janice M. Holder
Trial Court Judge: Steve R. Dozier
The defendant, Antonio Richardson, was convicted of two counts of especially aggravated kidnapping, one count of felony reckless endangerment, one count of aggravated assault, and one count of burglary. In addition, the defendant pleaded guilty to attempted especially aggravated robbery. The Court of Criminal Appeals ruled that the kidnappings were essentially incidental to the attempted especially aggravated robbery and therefore the kidnapping convictions violated due process under the principles stated in State v. Anthony. We reverse the intermediate appellate court and reinstate the convictions.

State of Tennessee v. James Lee Ivory and Jermaine Antonio Ivory
M2000-02145-CCA-R3-CD
Authoring Judge: Judge Jerry L. Smith
Trial Court Judge: Judge Steve R. Dozier

Jermaine Antonio and James Lee Ivory, along with their relative David, faced numerous weapons and narcotics offenses arising out of Davidson County on various dates. After the trial court severed five counts from one of the indictments, a jury trial was conducted to determine whether: 1) Jermaine Ivory sold .5 grams or more of a substance containing cocaine on March 16, 1998; 2) Jermaine Ivory sold 26 grams or more of a substance containing cocaine on March 30, 1998; and 3) Jermaine, James, and David Ivory conspired to sell 26 grams or more of a substance containing cocaine between March 1st and April 30th of 1998. Upon hearing the proof, the jury convicted Jermaine and James Ivory as charged but acquitted David Ivory. Additionally, James Ivory later pled guilty to two counts from the above-referenced indictment and two from another. In doing so, this defendant acknowledged his guilt on two counts of possession with intent to sell over one half ounce (14.175 grams) of marijuana, one count of felony possession of a firearm, and one count of possession with intent to sell over .5 grams of cocaine. Following separate sentencing hearings, Jermaine Ivory received an effective sentence of thirty-six years while James Ivory received an effective sentence of twenty years. Both individuals were also found to be multiple offenders. Thereafter, Jermaine Ivory unsuccessfully moved for a new trial; however, James Ivory filed no new trial motion. Both now bring this appeal essentially raising the same issues: (1) whether the State presented sufficient evidence to support the aforementioned conspiracy convictions; (2) whether the trial court erred in refusing to suppress evidence; and (3) whether the trial court imposed excessive sentences. After reviewing the record and applicable authorities, we find that the judgment of the trial court must be affirmed.

State of Tennessee v. Michael John Stitts
W2001-02555-CCA-R3-CD
Authoring Judge: Judge Joseph M. Tipton
Trial Court Judge: Judge Roy B. Morgan, Jr.

The defendant, Michael John Stitts, appeals as of right his conviction by a jury in the Madison County Circuit Court for aggravated assault, a Class C felony. He received a sentence of nine years in the Department of Correction as a Range II, multiple offender. He contends (1) that the evidence is insufficient to support his conviction and (2) that the trial court should have required the state to elect between two counts of aggravated assault. We affirm the judgment of conviction.

State of Tennessee v. Donald C. McCary
E2001-02726-CCA-R3-CD
Authoring Judge: Presiding Judge Gary R Wade
Trial Court Judge: Judge Buddy D. Perry

The defendant, Donald C. McCary, was convicted in two separate trials of two counts of aggravated sexual battery, one count of sexual battery, and four counts of statutory rape. There were two minor victims. The aggravated sexual battery convictions related to one victim and the remaining offenses were against the other. By consent of the state and the defendant, this court consolidated the two appeals during oral argument. The defendant claims (1) that the state failed to make a proper election of offenses at the close of the proof; (2) that there was a fatal variance between the indictments and the proof offered at both trials; (3) that the trial court erred by the admission of certain of the evidence; (4) that the trial court erred by denying his motion to suppress evidence seized during the search of his office; (5) that the trial court erred by refusing to suppress certain statements made during the search and after his arrest; (6) that the prosecutor's comments during closing argument were improper; (7) that the trial court erred by failing to declare the defendant incompetent to stand trial; (8) that the trial court erred by permitting amendment of the indictments; (9) that the cumulative effect of the errors denied him the right to a fair trial; and (10) that the trial judge should have recused himself from the hearing on the motions for new trial. The convictions on each count of aggravated sexual battery are affirmed. The remaining convictions are reversed and remanded for a new trial.

State of Tennessee v. Mitchell Shephard
E2002-02851-CCA-RM-CD
Authoring Judge: Judge Joe G. Riley
Trial Court Judge: Judge R. Steven Bebb

This case is before this court upon remand from the Supreme Court of Tennessee. In our original opinion we affirmed defendant's conviction for first degree murder in perpetration of aggravated child abuse but remanded to the trial court for a new sentencing hearing. In our original opinion we examined numerous issues, including whether the trial court erred in failing to instruct the jury on the lesser-included offenses of reckless homicide and criminally negligent homicide. We concluded the failure to charge these offenses constituted harmless error. The remand from the Supreme Court of Tennessee indicates we should reconsider the lesser-included offense issue in light of State v. Locke, S.W.3d , 2002 Tenn. LEXIS 474 (Tenn. Nov. 14, 2002). We now conclude that the trial court's failure to instruct the jury on the lesser-included offenses of reckless homicide and criminally negligent homicide constitutes reversible error.

Steven Hassell v. State of Tennessee
M2001-02888-CCA-R3-PC
Authoring Judge: Judge Joe G. Riley
Trial Court Judge: Judge Russell Heldman

The petitioner was originally convicted of first degree murder and attempted second degree murder and sentenced to an effective life term. He now appeals the denial of post-conviction relief, arguing trial counsel denied him the right to testify and ineffectively failed to present closing argument. We affirm the judgment of the post-conviction court.

Carlton Flatt v. Tennessee Secondary Schools Athletic Associatin, et al.
M2001-01817-COA-R3-CV
Authoring Judge: Judge Ben H. Cantrell
Trial Court Judge: Judge Walter C. Kurtz

A high-profile high school football coach and athletic director filed a defamation and false light invasion of privacy claim against the athletic association his school belonged to and other defendants. The Circuit Court of Davidson County granted summary judgment to the defendants because it found no evidence from which a jury could infer malice. We affirm.

Donald Ray Middlebrooks v. State of Tennessee
M2001-01865-CCA-R3-PD
Authoring Judge: Judge Joe G. Riley
Trial Court Judge: Judge Walter C. Kurtz

The petitioner has been sentenced to death and now appeals as of right the judgment of the Davidson County Criminal Court denying his petition for post-conviction relief. The petitioner argues: (1) the post-conviction court erred in denying his ex parte request for funds for expert services; (2) the post-conviction court erred in denying his request for a continuance; and (3) he did not receive effective assistance of counsel during his resentencing hearing. We affirm the judgment of the post-conviction court.

Laura C. Totty, et al., v. John Thompson, M.D., et al.
M2001-02539-COA-R3-CV
Authoring Judge: Judge William B. Cain
Trial Court Judge: Judge R.E. Lee Davies

In this medical malpractice case, Plaintiff appeals summary judgment based upon the failure of Plaintiff's medical expert to establish the requisite familiarity with the standard of care in the community in which Defendant practices or in a similar community. We affirm the action of the trial court.

Sarah Massie Johnson (Neeley) v. Keith Robert Johnson
M2002-00354-COA-R3-CV
Authoring Judge: Presiding Judge Ben H. Cantrell
Trial Court Judge: Judge Marietta M. Shipley

The trial court granted the father's petition to suspend the mother's impending visitation with the parties' 13-year-old daughter. The mother then moved the trial judge to recuse herself from any further involvement in proceedings relating to custody of the child or to visitation. She claimed that an ex parte communication between the father's attorney and the judge prior to the hearing on the father's petition created the appearance of partiality or bias. The judge denied the mother's motion to recuse. We affirm.