Eugene Osborne v. State Industries, Inc.
M2001-01288-WC-R3-CV
Authoring Judge: James L. Weatherford, Sr. J.
Trial Court Judge: Allen W. Wallace, Judge
The plaintiff, who claimed that he injured his back at work while painting traffic lines with a line striker, appeals the judgment of the trial court dismissing the case after finding that the plaintiff failed to prove he suffered an accident or injury arising out of and in the course and scope of his employment. We hold that the evidence does not preponderate against the trial court's findings. Accordingly, the judgment of the trial court is affirmed.

State of Tennessee v. Gregory Dunnorm
E2001-00566-CCA-R3-CD
Authoring Judge: Presiding Judge Gary R Wade
Trial Court Judge: Judge James B. Scott, Jr.
The defendant, Gregory Dunnorm, was convicted of Class D felony evading arrest, the simple assault of LaDeana Ellis, vandalism, and second offense driving on a suspended license. See Tenn. Code Ann. §§ 39-16-603, 39-13-301, 39-14-408, 55-50-504. He had been charged with the aggravated assault of LaDeana Ellis and was acquitted on charges of simple assault of Sonda Ellis and aggravated assault of Officer Karen Wehenkel. While granting supervised probation, the trial court sentenced the defendant to concurrent terms of two years for evading arrest and 11 months, 29 days for each of the misdemeanor convictions. In this appeal of right, the defendant asserts (1) that the evidence was insufficient to support the convictions for evading arrest, assault, and vandalism; (2) that the trial court erred by permitting the state to cross-examine the defendant regarding his affidavit of income; (3) that the trial court erred by failing to instruct the jury regarding the lesser included offenses of Class D felony evading arrest; and (4) that the trial court erred by declining to instruct the jury on the defense of effective consent. Because the evidence was insufficient to support the defendant’s conviction for Class D felony evading arrest and because the trial court erred by failing to instruct on the lesser included offense of Class E felony evading arrest, the conviction is reversed and the cause remanded. Otherwise, the judgments of the trial court are affirmed.

State of Tennessee v. Gregory Dunnorm - Concurring
E2001-00566-CCA-R3-CD
Authoring Judge: Judge Joseph M. Tipton
Trial Court Judge: Judge James B. Scott, Jr.
I concur with the majority opinion, but I believe that neither Rule 613 nor Rule 608, Tenn. R. Evid., allowed use of extrinsic evidence of the defendant’s lying on the affidavit of income. As the majority opinion notes, Rule 608 allows a party to cross-examine a witness about specific instances of conduct for the purpose of attacking the witness’s credibility, but it bars extrinsic evidence of such conduct if the witness denies that it occurred. I also believe, though, that such an exclusion applied to Rule 613 in this case.

Jewel Powers v. Johnson Controls,
W2001-00524-WC-R3-CV
Authoring Judge: Joe C. Loser, Jr., Sp. J.
Trial Court Judge: Joe C. Morris, Chancellor
In this appeal, the Second Injury Fund insists (1) the claim is barred by the one-year statute of limitations, (2) the employer is judicially estopped from asserting it had actual notice of the employee's pre-existing disability, when it denied such knowledge in its answer, and (3) the trial court erred in its apportionment of liability between the Fund and the employer. As discussed below, the panel has concluded the judgment should be affirmed

Mary Barnett v. S&R of Tennessee,
W2001-01984-WC-R3-CV
Authoring Judge: Joe C. Loser, Jr., Sp. J.
Trial Court Judge: Dewey Whitenton, Chancellor
In this appeal, the employer insists the evidence preponderates against the trial court's findings (1) that the claimant suffered an injury arising out of and in the course of employment, and (2) the trial court's finding that the injury is permanent. As discussed below, the panel has concluded the award should be modified to one based on 15 percent to both arms, but otherwise affirmed.

Faye Butterfield v. Crawford & Company
W2001-01178-WC-R3-CV
Authoring Judge: Joe C. Loser, Jr., Sp. J.
Trial Court Judge: Joe C. Morris, Chancellor
In this appeal, the employer-appellant insists the trial court erred in (1) considering an evaluating physician's opinion of the extent of the employee's medical impairment, as not being based on statutorily approved guidelines, and (2) the award of permanent partial disability benefits based on 42 percent to the body as a whole is excessive under the circumstances. As discussed below, the panel has concluded the award exceeds the maximum prescribed by statute and the judgment should be vacated and the cause remanded with instructions.

Robert Anthony Payne v. State of Tennessee
M2001-01994-CCA-R3-PC
Authoring Judge: Judge John Everett Williams
Trial Court Judge: Judge Seth W. Norman

The petitioner appeals the post-conviction court's denial of his petition for post-conviction relief. He claims that counsel was ineffective for failing to timely discover the existence of another individual who was questioned regarding the aggravated assault and for failing to interview or cross-examine the victim of the assault. After review, we affirm the judgment from the post-conviction court.

David Stovall v. Christopher Dunn
M1999-00200-COA-R3-CV
Authoring Judge: Judge William C. Koch, Jr.
Trial Court Judge: Jim T. Hamilton
This appeal involves a state prisoner's civil rights action against a private lawyer appointed to represent him in a post-conviction proceeding. The prisoner filed suit against his former lawyer in the Circuit Court for Maury County alleging that the lawyer, motivated by racial bias, had intentionally deprived him of an opportunity to seek appellate review of an adverse decision of the Tennessee Court of Criminal Appeals and had refused to provide him with his case file. The lawyer moved for summary judgment on the ground that the prisoner's complaint was barred by the statute of limitations. The trial court granted the summary judgment, and the prisoner has appealed. We have determined that the trial court erred by granting the summary judgment because there is a genuine factual issue regarding whether the prisoner's complaint is time-barred.

State of Tennessee v. Olivia Washburn
W2001-01847-CCA-R3-CD
Authoring Judge: Judge Alan E. Glenn
Trial Court Judge: Judge Roy B. Morgan, Jr.

A Henderson County Circuit Court jury found the defendant, Olivia Washburn, guilty of the sale and delivery of .5 grams or more of cocaine, Class B felonies, and assessed two separate $25,000 fines. The trial court sentenced the defendant as a Range I, standard offender, imposed an eight-year sentence to be served in the Tennessee Department of Correction, and merged the fines so that the defendant was ordered to pay a total of $25,000. On appeal, the defendant argues that the trial court erred in concluding both that her statement to law enforcement officers was voluntary and that the evidence against her was sufficient, as well as in allowing into evidence a videotape not produced to the defense. These assignments are without merit. However, we conclude that the trial court erred in admitting the defendant's statement without considering whether the probative value of the numerous references to other drug offenses outweighed their prejudicial effect. The judgments of the trial court are reversed, and the matter is remanded for a new trial.

State of Tennessee v. John Wesley Johnson
W2001-02473-CCA-MR3-CD
Authoring Judge: Judge Norma McGee Ogle
Trial Court Judge: Judge L. Terry Lafferty

The appellant, John Wesley Johnson, was indicted by the Gibson County Grand Jury for one count of desecration of a venerated object, to wit: a place of burial, a class A misdemeanor. He was convicted by a jury, sentenced to eleven months and twenty-nine days in the county jail, placed on probation, and ordered to pay restitution in the amount of $2,574. The appellant, proceeding pro se, filed an untimely notice of appeal. This court, upon motion of the appellant, waived timely filing
of the appeal; accordingly, the appeal is properly before this court. On appeal, the appellant raises the following issues: (1) “w[h]ether the trial court reviewed the record”; (2) “w[h]ether the (State) conspira[cy] used their position to withhold facts in order to receive a conviction”; (3) “w[h]ether the public officers used the court to reach their gold”; and  (4) “w[h]ether the trial court erred in its review of the records and facts of law as to this case.” Upon review of the record and the parties’
briefs, we affirm the judgment of the trial court.

Wendy McFadden v. State of Tennessee
W2001-02475-CCA-R3-PC
Authoring Judge: Judge Robert W. Wedemeyer
Trial Court Judge: Judge L. Terry Lafferty

The Defendant pled guilty to second degree murder, and the trial court imposed an agreed sentence of fifteen years in the Department of Correction. The Defendant subsequently filed for post-conviction relief, alleging that she did not enter a voluntary and knowing guilty plea and alleging that she received ineffective assistance of counsel in conjunction with her plea. After an evidentiary hearing, the trial court denied relief. This appeal followed. We affirm the judgment of the trial court.

State of Tennessee v. Anthony Murff, aka Antony Muff
W2001-01459-CCA-R3-CD
Authoring Judge: Judge Alan E. Glenn
Trial Court Judge: Judge Joseph H. Walker, III

The defendant was convicted by a Lauderdale County Circuit Court jury of especially aggravated robbery, a Class A felony, and sentenced by the trial court as a Range III, persistent offender to sixty years, to be served at 100%, in the Tennessee Department of Correction. He raises three issues on appeal: (1) whether the evidence was sufficient to support his conviction; (2) whether the trial court erred in using his prior Illinois convictions to classify him as a persistent offender; and (3) whether the trial court erred in its application of enhancement factors. We conclude that the evidence was more than sufficient to support the defendant's conviction, and that his prior convictions in Illinois qualified him as a persistent offender. We further conclude that, although the trial court erred in applying three enhancement factors, the remaining enhancement factors justify the sixty-year sentence imposed in this case. Accordingly, the judgment of the trial court is affirmed.

State of Tennessee v. Timothy D. McGlory
M2001-01998-CCA-R3-PC
Authoring Judge: Judge J. Curwood Witt, Jr.
Trial Court Judge: Judge Steve R. Dozier
The petitioner appeals the Davidson County Criminal Court's denial of post-conviction relief. Because the record supports the rejection of the petitioner's claims that his guilty pleas to two counts of aggravated robbery were unknowing and the result of ineffective assistance of trial counsel, we affirm the denial of post-conviction relief.

Discount Communications, Inc., v. BellSouth Telecommunications, Inc.
M2000-02924-COA-R12-CV
Authoring Judge: Presiding Judge Ben H. Cantrell

Discount Communications, Inc. purchases telephone services from BellSouth Telecommunications, Inc. and resells the services at an increased rate to Discount's own residential and commercial customers. Some of Discount's customers qualify for a Federal Communication Commission program called Lifeline, which provides telephone services at a reduced rate through federal and state subsidies. BellSouth and Discount got into a dispute about whether their agreement required BellSouth (1) to provide directory assistance to Discount's customers and (2) to pass the $3.50 per month state subsidy through to Discount. The Tennessee Regulatory Authority decided that the agreement required BellSouth to provide directory assistance at no charge to Discount's customers and that BellSouth was not required to forward the $3.50 monthly charge to Discount. We affirm.

State of Tennessee v. Genee Hardin Snow, Sr.
M2001-01416-CCA-R3-CD
Authoring Judge: Judge Thomas T. Woodall
Trial Court Judge: Judge Cheryl A. Blackburn

Originally charged in an indictment with the offense of attempted first degree murder, the Defendant, Genee Hardin Snow, Sr., entered into a negotiated plea agreement wherein he pled guilty to the lesser-included offense of attempted second degree murder, with the trial court to determine the length and manner of service of his sentence following a sentencing hearing. Additional charges of aggravated assault, reckless endangerment with a deadly weapon, and possession of a weapon in a public place were dismissed pursuant to the plea agreement. Following a sentencing hearing, the trial court sentenced Defendant to serve nine (9) years in the Tennessee Department of Correction. Arguing that he should have received the minimum sentence of eight (8) years, and that he should have been ordered to serve the sentence on probation or some other form of alternative sentence, Defendant has appealed. After a thorough review of the record, we affirm the judgment of the trial court.

Victor R. Wingo v. Tennessee Department of Correction
W2002-00312-COA-R3-CV
Authoring Judge: Judge David R. Farmer
Trial Court Judge: Chancellor Martha B. Brasfield

Petitioner, an inmate in custody of the Tennessee Department of Correction, filed a petition for writ of certiorari seeking judicial review of a disciplinary hearing wherein the inmate was found guilty of assault and strong arm activity and received a deduction of one-year in good time and was upgraded to maximum security. The trial court granted respondent's motion to dismiss for failure to state a claim. We affirm.

State of Tennessee v. Haskel D. Finch
M2001-00340-CCA-R3-CD
Authoring Judge: Judge Alan E. Glenn
Trial Court Judge: Judge Allen W. Wallace

A Humphreys County Circuit Court jury convicted the defendant of rape, and the trial court sentenced him as a violent offender to ten years, with 100% of his sentence to be served. On appeal, the defendant argues that the trial court erred in finding sufficient evidence to convict him of rape, in admitting a statement he made to the police, in admitting evidence of the victim's mental capacity, in denying his Tennessee Rule of Evidence 412 motion, and in failing to instruct the jury as to assault. We affirm the judgment of the trial court.

Michael Baral v. George Joshua Bombard
M2000-02429-COA-R3-JV
Authoring Judge: Judge Don R. Ash
Trial Court Judge: Judge Betty Adams-Green

This appeal arises from a dispute over the custody of Austin Bombard, a minor child, and the termination of George Bombard's parental rights on a finding of abandonment. The trial court dismissed the father's Petition for Custody and granted custody of the child to Jocelyn and Michael Baral, the child's maternal aunt and uncle. Mr. Bombard challenges the termination of his parental rights and the trial court's custody order. We affirm the trial court's termination of the father's parental rights and custody order. Costs of this appeal shall be assessed to the appellant.

State of Tennessee v. Mark Lee Dale
M2001-01205-CCA-R3-CD
Authoring Judge: Judge Alan E. Glenn
Trial Court Judge: Judge W. Charles Lee

The defendant was convicted by a Lincoln County Circuit Court Jury of robbery, a Class C felony, and was sentenced by the trial court as a Range II, multiple offender to nine years, three months in the Department of Correction. The sole issue he raises on appeal is whether the trial court erred in finding that the State's peremptory challenge of the only African-American member of the venire was exercised on race-neutral grounds. Based on our review, we affirm the judgment of the trial court.

Fleet One, LLC., v. John Cook, et al.
M2001-03048-COA-R3-CV
Authoring Judge: Special Judge Walter C. Kurtz
Trial Court Judge: Judge John D. Wooten

This appeal challenges the dismissal of a defendant. The circuit court granted John Cook's Tenn. R. Civ. P. 41.02 motion for involuntary dismissal and found that he did not personally guarantee the debt of Bennett Hill Spring, LLC when he signed the Credit Application as "Operations Manager." Appellant challenges the circuit court's decision to grant the motion which dismissed John Cook as an individual defendant. As discussed below, we affirm the judgment of the circuit court granting John Cook's motion for involuntary dismissal. The circuit court was correct that, from a reading of the contract as a whole, it is not apparent that John Cook personally guaranteed payment by signing the Credit Application.

State of Tennessee v. Thomas Gatewood
M2001-01871-CCA-R3-CD
Authoring Judge: Judge Alan E. Glenn
Trial Court Judge: Judge Seth W. Norman

The defendant, Thomas Gatewood, was indicted for first degree murder but convicted of second degree murder, for which he was sentenced as a violent offender to twenty-three years imprisonment. In his appeal, the defendant argues that the trial court erred in not granting a continuance because of a missing witness, in not instructing as to the lesser-included offenses of reckless homicide and criminally negligent homicide and that his sentence was excessive. Although issues one and three are without merit, we agree that the jury should have been instructed as to the lesser offenses of reckless homicide and criminally negligent homicide. Accordingly, we reverse the conviction and remand for a new trial.

Eric Ross Sewell v. State of Tennessee
M2001-02134-CCA-R3-PC
Authoring Judge: Judge Alan E. Glenn
Trial Court Judge: Judge Jane W. Wheatcraft

The petitioner appeals the denial of his petition for post-conviction relief. The petitioner pled guilty to two counts of aggravated sexual battery, Class B felonies, and one count of attempted aggravated sexual battery, a Class C felony. Subsequently, he filed a petition for post-conviction relief, alleging ineffective assistance of counsel as its main issue. Following a hearing, the court denied relief, and the petitioner timely appealed. On appeal, the petitioner argues that the record shows that trial counsel was ineffective and that the post-conviction court showed bias in its ruling and incorrectly limited his proof at the hearing. Following our review, we affirm the denial of post-conviction relief.

Tanya Plattenburg v. Talley, Basham & Basham, Rogers Group, & John Doe, & State Farm Insurance
M2001-01779-COA-R3-CV
Authoring Judge: Presiding Judge Herschel P. Franks
Trial Court Judge: Judge John W. Rollins

The Trial Court dismissed plaintiff's action, pursuant to Tenn. R. Civ. P. 41.02, for failure to pay costs which had been assessed as a sanction. On appeal, we affirm, as modified.

State of Tennessee v. Holly Fant
W2001-02634-CCA-R3-CD
Authoring Judge: Judge David G. Hayes
Trial Court Judge: Judge Clayburn L. Peeples

The Appellant, Holly Fant, appeals from the sentencing decision of the Gibson County Circuit Court. Fant pled guilty, under an "open" plea agreement, to aggravated assault and, following a hearing, was sentenced to a term of four years in the Tennessee Department of Correction. Fant now appeals, asserting that the trial court failed to comply with the relevant sentencing principles and, therefore, erred in not granting her a non-incarcerative sentence. Because we find that the trial court failed to place on the record discernable enhancing or mitigating factors as is statutorily required, and failed to include findings with regard to the denial of an alternative sentence, the judgment is reversed and this case is remanded for a new sentencing hearing.

Frederick Beauregard v. State of Tennessee
W2001-02546-CCA-R3-PC
Authoring Judge: Judge David G. Hayes
Trial Court Judge: Judge Jon Kerry Blackwood

The Appellant, Frederick Beauregard, appeals from the Hardeman County Circuit Court's denial of his petition for post-conviction relief. In May of 1997, Beauregard was convicted of the rape and incest of his thirteen-year-old daughter. He received an effective sentence of nine years for the convictions. Beauregard's convictions and sentences were later affirmed on direct appeal. See State v. Beauregard, 32 S.W.3d 681 (Tenn. 2000). On February 13, 2001, Beauregard timely filed his pro se petition for post-conviction relief which was amended following appointment of counsel. Following a hearing on the merits, the trial court denied Beauregard's petition.

From this denial, Beauregard now appeals asserting that he received ineffective assistance of trial counsel in the following respects: (1) trial counsel was inadequately prepared for trial; (2) trial counsel failed to properly investigate, interview or call material witnesses at trial; (3) trial counsel failed to discuss trial strategy or the theory of the case with Beauregard; (4) trial counsel failed to review the jury list with Beauregard; (5) trial counsel failed to develop testimony with regard to the chain of custody of the rape kit and its reliability; and (6) trial counsel failed to provide expert proof to rebut the State's DNA expert. After review, we find no error and affirm the judgment of the post-conviction court.