State of Tennessee v. George Langford
W2001-00371-CCA-R3-PC
Authoring Judge: Judge David H. Welles
Trial Court Judge: Judge Chris B. Craft

The Defendant, George Langford, was convicted of first degree felony murder, aggravated burglary, aggravated assault, and reckless endangerment. He was sentenced to life without the possibility for parole for the murder and to concurrent sentences of four, five, and two years for the other crimes respectively. The Defendant appealed his convictions and this Court affirmed the convictions and the sentences. Our supreme court granted the Defendant's application for appeal and also affirmed his convictions and sentences. The Defendant then filed a petition for post-conviction relief alleging ineffective assistance of counsel. The trial court dismissed the petition. The Defendant now appeals to this Court alleging that the trial court erred in denying him relief. We affirm the judgment of the trial court.

State of Tennessee v. Thomas L. Condra
M2000-02864-CCA-R9-CD
Authoring Judge: Judge John Everett Williams
Trial Court Judge: Judge Buddy D. Perry

The defendant, who was charged with vehicular homicide and failure to yield right of way, filed a petition for writ of certiorari to review district attorney's denial of pretrial diversion. The trial court found that district attorney general did not abuse his discretion in denying pretrial diversion. We affirm the judgment of the trial court.

Joyce Ramsey v. City of Dyersburg,
W2001-01059-SC-WCM-CV
Authoring Judge: Joe C. Loser, Jr. Sp. J.
Trial Court Judge: Joe C. Morris, Chancellor
In this appeal, the appellant contends the evidence preponderates against the trial court's finding that the claimant's husband's fatal heart attack arose out of and in the course of employment. As discussed below, the panel has concluded the judgment should be affirmed.

State of Tennessee v. William Ray Collier
M2001-00893-CCA-R3-CD
Authoring Judge: Judge David H. Welles
Trial Court Judge: Judge Cheryl A. Blackburn

The Defendant, William Ray Collier, was convicted by a jury of two counts of possessing heroin with intent to sell or deliver within one thousand feet of a school, one count of possessing heroin with intent to sell or deliver, and three counts of driving on a suspended license. The trial court sentenced the Defendant to an effective term of seventy-one years. In this appeal as of right, the Defendant raises three issues: whether the trial court erred in admitting certain expert testimony; whether the evidence is sufficient to sustain his convictions; and whether his sentence is excessive. Finding no merit in any of the Defendant's contentions, we affirm the judgment of the trial court.

State of Tennessee v. Michael Bikrev
M2001-01620-CCA-R3-CD
Authoring Judge: Judge David H. Welles
Trial Court Judge: Judge Donald P. Harris

The Defendant, Michael Bikrev, was convicted of theft of property over $1,000.00 by a Williamson County jury. After a sentencing hearing, the Defendant was sentenced as a Range I standard offender to three years in the Department of Correction. The trial court suspended the sentence conditioned upon the Defendant serving one year in the Williamson County jail and completing four years of probation. On appeal, the Defendant contends that (1) the evidence is insufficient to support his conviction, (2) the State did not prove venue, (3) the trial court erred in admitting evidence of a tacit admission made by the Defendant, and (4) the trial court erred in sentencing the Defendant. We affirm the judgment of the trial court.

State of Tennessee v. Roland G. Ransom
W2001-00530-CCA-R3-CD
Authoring Judge: Judge Joe G. Riley
Trial Court Judge: Judge W. Fred Axley

Pursuant to a negotiated plea agreement, the defendant pled guilty to facilitation of the sale of cocaine greater than 0.5 grams for an agreed sentence of four years, with the manner of service to be determined by the trial court. Following a sentencing hearing, the trial court denied alternative sentencing. In this appeal, the defendant challenges the denial of alternative sentencing. We affirm.

State of Tennessee v. Edward Arnold Rivera
W2001-00857-CCA-R9-CD
Authoring Judge: Judge David H. Welles
Trial Court Judge: Judge C. Creed McGinley

The Defendant, Edward Arnold Rivera, was indicted by a Hardin County grand jury on two counts of official misconduct, each a felony, and one count of misdemeanor theft. The Defendant submitted an application for pre-trial diversion which was denied by the District Attorney General. The Defendant filed a petition for a writ of certiorari in the Hardin County Circuit Court pursuant to Tennessee Rule of Criminal Procedure 38 for review of the denial of pre-trial diversion. The Circuit Court found no abuse of discretion, denied the petition, and granted the Defendant leave to seek an interlocutory appeal to this Court pursuant to Tennessee Rule of Appellate Procedure 9(a). The Defendant contends on appeal that (1) the District Attorney General abused his discretion in denying pre-trial diversion and (2) the record does not support the denial. This Court granted the Defendant's application, and we now affirm the Circuit Court's denial of the petition.

State of Tennessee v. Amos L. Brown
E2000-00285-CCA-R3-CD
Authoring Judge: Judge Robert W. Wedemeyer
Trial Court Judge: Judge R. Steven Bebb

In May 1999, a McMinn County jury found the Defendant guilty of the felony murder of one victim and of the criminally negligent homicide of a second victim. The trial court sentenced the Defendant as a Range I standard offender to concurrent sentences of life in prison for the felony murder conviction and two years incarceration for the criminally negligent homicide conviction. In this appeal as of right, the Defendant presents the following issues for our review: (1) whether sufficient evidence was presented at trial to support his conviction for felony murder; (2) whether the trial court erred by refusing to order the State to reveal the identity of a confidential informant; (3) whether the trial court erred by allowing the Defendant's co-defendant to testify against him at trial; (4) whether the trial court erred by allowing the jury to view a video tape of the Defendant's arrest; (5) whether the trial court allowed the jury to hear inadmissible hearsay testimony; (6) whether the trial court erred by allowing into evidence the entire written statement of the co-defendant; (7) whether the Defendant was denied a fair trial as a result of the State's failure to disclose exculpatory information; and (8) whether the trial court erred by denying the Defendant's motion requesting individual voir dire of the potential jurors concerning pretrial publicity. Finding no error by the trial court, we affirm the Defendant's convictions.

State of Tennessee v. Hershell W. Estes, Jr.
E2000-01869-CCA-R3-CD
Authoring Judge: Judge Jerry L. Smith
Trial Court Judge: Judge Richard R. Baumgartner

A Knox County jury convicted the defendant of one count of aggravated sexual battery and one count of rape of a child. For the former the trial court sentenced the defendant to ten years, and for the latter he received a sentence of twenty-three years. The trial court then ordered these sentences to run concurrently. Subsequently, the defendant brought an unsuccessful motion for new trial and now pursues the present appeal in this Court raising two issues. More specifically, the defendant avers that the trial court erred 1) by limiting defense counsel's questioning of the victim concerning her prior sexual experiences and 2) by improperly utilizing two enhancement factors in sentencing the defendant. Upon review of these issues, we find that neither merit reversal and, thus, affirm the convictions and sentences. However, we have noted error in the rape of a child judgment requiring a remand for correction thereof.

Bonner Mccluskey v. F&M Incorporated,
2001-00468-SC-WCM-CV
Authoring Judge: Joe C. Loser, Jr., Sp. J.
Trial Court Judge: George Brown, 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 appellant insists (1) the trial court erred in dismissing his claim for permanent disability benefits based on a finding that the proof of permanency was insufficient, and (2) the trial court erred in disallowing the appellant's post-trial application for relief. As discussed below, the panel has concluded the judgment should be affirmed. Tenn. Code Ann. _ 5-6-225(e) (1999) Appeal as of Right; Judgment of the Circuit Court Affirmed. JOE C. LOSER, JR., SP. J., in which JANICE M. HOLDER, J., and L. T. LAFFERTY, SR. J., joined. Steve Taylor, Memphis, Tennessee, for the appellant, Bonner McCluskey R. Scott Vincent and Ronald L. Harper, Memphis, Tennessee, for the appellees, F&M Incorporated d/b/a Domino's Pizza, Inc., and Domino's Pizza, Inc. MEMORANDUM OPINION On or about January 13, 1999, the employee or claimant, Bonner McCluskey, was injured at work when a box of pepperoni fell from a freezer shelf, striking him in the left shoulder and neck. He reported the injury to the employer, Domino's, and was provided medical benefits. He lost a few days of work, then returned. The employee was treated for his injuries by Dr. Dawoud, who prescribed physical therapy and released the employee to full duty without restrictions. The only issue presented for trial was the extent of the employee's permanent vocational disability, if any. His attorney referred the claimant to Dr. Tewfik E. Rizk, whom he saw a number of times. Although diagnostic testing revealed no evidence of injury, Dr. Rizk diagnosed muscular fibrosis and thoracic outlet delay, provided conservative care and estimated the claimant's permanent whole body impairment to be 25 percent. The employer's insurer referred the claimant to Dr. John D. Brophy, who reviewed Dr. Rizk's records, diagnosed a soft tissue injury, consulted with another board certified specialist and examined the claimant. Dr. Brophy concluded that Dr. Rizk's diagnoses were erroneous. Dr. Brophy opined at trial that the claimant did not have any permanent impairment. Both doctors testified by deposition. The claimant testified that he continues to have disabling pain. He is currently working for another employer, earning more than $4,. per year as a service manager. The trial court rejected the opinions of Dr. Rizk in favor of those of Dr. Brophy and dismissed the claim for insufficient evidence of permanency. Appellate review of findings of fact is de novo upon the record of the trial court accompanied by a presumption of correctness of the findings, unless the preponderance of the evidence is otherwise. Tenn. Code Ann. _ 5-6-225(e)(2). The extent of an injured worker's permanent vocational disability is a question of fact. Collins v. Howmet Corp., 97 S.W.2d 941, 943 (Tenn. 1998). This tribunal is not bound by the trial court's findings but instead conducts an independent examination of the record to determine where the preponderance lies. Galloway v. Memphis Drum Serv., 822 S.W.2d 584, 586 (Tenn. 1991). Where the trial judge has seen and heard the witnesses, especially if issues of credibility and weight to be given oral testimony are involved, considerable deference must be accorded those circumstances on review, because it is the trial court that had the opportunity to observe the witnesses' demeanor and to hear the in-court testimony. Long v. Tri-Con Ind., Ltd., 996 S.W.2d 173, 178 (Tenn. 1999). The appellant first contends the trial court erred in accepting the opinions of Dr. Brophy, instead of those of Dr. Rizk, because Dr. Rizk was a treating physician. Trial courts are not required to accept the opinion of a treating physician over any other conflicting expert medical testimony. When the medical testimony differs, the trial judge must choose which view to believe. In doing so, he is allowed, among other things, to consider the qualifications of the experts, the circumstances of their examination, the information available to them, and the evaluation of the importance of that information by other experts. Orman v. Williams Sonoma, Inc., 83 S.W.2d 672, 676 (Tenn. 1991). Moreover, it is within the discretion of the trial judge to conclude that the opinion of certain experts should be accepted over that of other experts and that it contains the more probable explanation. Hinson v. Wal-Mart Stores, Inc., 654 S.W.2d 675, 676-7 (Tenn. 1983). From our independent examination of the record, we are unable to find the preponderance of the evidence to be otherwise than as found by the trial court. The first issue is accordingly resolved in favor of the appellee. The appellant next contends that the trial court erred in disallowing his post- trial motion for -2-

David Travis Bennett v. Pamela Jean Bennett
M2000-02448-COA-R3-CV
Authoring Judge: Judge D. Michael Swiney
Trial Court Judge: Judge J. Curtis Smith

The parties were divorced in 1995. The Final Decree awarded joint custody of their minor child. Pamela Jean Bennett ("Mother") was awarded primary physical custody, while David Travis Bennett ("Father") was awarded visitation. Thereafter, the Trial Court held three hearings upon the parties' petitions regarding several issues. Father appeals two of the three orders that the Trial Court entered, and his issues on appeal involve the following: the Trial Court's refusal, at the second hearing, to allow proof regarding issues previously reserved by the Trial Court at the first hearing; the Trial Court's refusal to allow Father to fire his attorney during the second hearing; the Trial Court's increase of Father's child support obligation; the Trial Court's refusal to modify child custody; the Trial Court's finding Father in contempt for failure to pay child support; and the Trial Court's refusal to find Mother in contempt for her alleged failure to comply with the visitation schedule. We affirm.

Amy Jo Stone, et al., v. Regions Bank
M2001-00856-COA-R3-CV
Authoring Judge: Judge W. Frank Crawford
Trial Court Judge: Judge W. Charles Lee

This is a dispute over life insurance proceeds. Plaintiffs' mother was indebted to defendant-bank and entered into a contract with the bank and the plaintiffs to secure past and future indebtedness by assignment of a life insurance policy on her life. The policy was duly assigned pursuant to the contract with the bank. Subsequently, plaintiffs' mother filed a bankruptcy proceeding, and her liability to the bank on her indebtedness was discharged, but the insurance policy was not affected. The bank continued paying the annual premiums on the policy, and several years after the bankruptcy proceeding, the plaintiffs' mother died. The insurance company, by virtue of the assignment of the policy, paid the insurance proceeds to the bank which then satisfied its indebtedness and paid the balance of the proceeds to the plaintiffs pursuant to the contract. Plaintiffs sue to recover the full amount of the insurance proceeds, contending that there was no existing indebtedness as specified in the contract. The trial court entered judgment for bank, and plaintiffs have appealed. We affirm.

State of Tennessee v. Joel M. Puentes
M2001-01115-CCA-R3-CD
Authoring Judge: Judge Joseph M. Tipton
Trial Court Judge: Judge J. Randall Wyatt, Jr.

The defendant, Joel M. Puentes, appeals his conviction by a jury in the Davidson County Criminal Court for facilitating second degree murder, a Class B felony, for which he received a nine-year sentence. He contends that (1) the indictment is deficient in its allegations regarding homicide, (2) the proof is insufficient to convict him, and (3) the trial court should have instructed the jury regarding accessory after the fact as a lesser included offense to homicide. We conclude that no error exists and that the evidence is sufficient. We affirm the judgment of the trial court.

State of Tennessee v. Earl Dewayne Cole
W2000-02029-CCA-R3-CD
Authoring Judge: Judge Jerry L. Smith
Trial Court Judge: Judge Roy B. Morgan, Jr.

The appellant, Earl Dewayne Cole, was convicted by a Madison County jury of the offense of aggravated assault with a deadly weapon. He was sentenced as a Range II offender to a term of seven (7) years incarceration in the Tennessee Department of Correction. In this appeal the appellant claims the trial judge failed to adequately respond to a jury question regarding the need for unanimity in their verdict, that the written jury instructions showed the victim's name and weapon only under the main charge, and that the trial judge should have considered a lesser offense at sentencing. We find that all of these alleged errors have been waived by the failure of the appellant to enter a contemporaneous objection to them, by the failure to raise these issues in the motion for a new trial, and by the failure of the appellant on appeal to cite to any relevant authority supporting his arguments. Moreover, we find that none of these alleged errors constitute plain error. We therefore affirm the judgment of the trial court.

Michael W. Smith v. James Dukes, Warden
W2001-01535-CCA-R3-PC
Authoring Judge: Judge Thomas T. Woodall
Trial Court Judge: Judge Joseph H. Walker, III

Petitioner, Michael W. Smith, filed a "Petition for Writ of Habeas Corpus" in the Circuit Court of Lauderdale County. He alleged that his conviction for escape in the Circuit Court of Hardeman County was invalid because of an illegal and void sentence. Petitioner did not attach to his petition the Hardeman County judgment or any other portion of that record. He also alleged that the sentence had been served, that he was illegally sentenced as a Range II offender because he had no prior felony convictions, and that no enhancement factors could properly be applied to a Range I sentence. The trial court summarily dismissed the petition and assessed trial court costs against Petitioner, who now appeals both the summary dismissal of his petition and the assessment of costs against him. We affirm the dismissal of the petition for writ of habeas corpus, but reverse that portion of the order taxing costs to Petitioner.

State of Tennessee v. Christopher D. Lanier
W2001-00379-CCA-R3-CD
Authoring Judge: Judge J. Curwood Witt, Jr.
Trial Court Judge: Judge Arthur T. Bennett

The defendant, Christopher D. Lanier, was convicted by a Shelby County jury of possession of one-half gram or more of cocaine with intent to deliver, and the trial court sentenced him as a Range I offender to incarceration for nine years in the Department of Correction. On appeal, he challenges the sufficiency of the convicting evidence and the trial court's decision to not require a police officer who testified for the state to reveal the identity of a confidential informant. Finding no error warranting reversal, we affirm.

State of Tennessee v. Melvin E. Beard
M2000-02207-CCA-R3-CD
Authoring Judge: Judge Jerry L. Smith
Trial Court Judge: Judge Timothy L. Easter

After being indicted for aggravated perjury, the defendant, Melvin E. Beard, filed a motion for a bill of particulars. In response, the state filed two bills of particulars, one on January 22, 1999 and one on August 5, 1999. At the conclusion of a jury trial, which was held on March 8-9, 2000, the jury convicted the defendant of aggravated perjury. The trial court sentenced the defendant as a Range II multiple offender to serve five years in confinement. The defendant now brings this appeal challenging his conviction and sentence on several grounds. Following a thorough review, we find none of the issues raised warrant relief and we therefore affirm the conviction and sentence.

Michael Lane v. Olsten Staffing Services, Inc.,
E2001-00380-WC-R3-CV
Authoring Judge: Thayer, Sp. J.
Trial Court Judge: Thomas J. Seeley, Jr., Chancellor
The trial court found the employee sustained a compensable injury but concluded there was no permanent disability. Also, the court declined to allow certain medical expenses ordered by an independent medical examiner. Judgment of the trial court is affirmed.

State of Tennessee v. Jimmy M. Millican
M2000-02298-CCA-R3-CD
Authoring Judge: Judge Joe G. Riley
Trial Court Judge: Judge J. Randall Wyatt, Jr.

A Davidson County jury convicted the defendant of aggravated vehicular homicide and driving on a revoked license. He was sentenced to 25 years for aggravated vehicular homicide and a concurrent six months for driving on a revoked license. The defendant contends in this appeal that (1) the evidence was not sufficient to support his convictions; (2) a facially invalid judgment for a prior DUI conviction was used to enhance his conviction to aggravated vehicular homicide; and (3) his sentence is excessive. We affirm the judgment of the trial court.

Melvin Peacock v. State of Tennessee
M2001-00831-CCA-R3-PC
Authoring Judge: Judge J. Curwood Witt, Jr.
Trial Court Judge: Judge J. Randall Wyatt, Jr.

Through his 2000 post-conviction petition, Melvin Peacock seeks to avoid his 1996 Davidson County jury convictions of possession of cocaine for resale and felony possession of a weapon, for which he received an effective sentence of 20 years. After appointing post-conviction counsel and holding an evidentiary hearing on the petitioner's single issue of whether he received ineffective assistance of trial counsel, the lower court denied post-conviction relief. Because the record supports the court's decision, we affirm.

Stanley Green v. Nashville and Davidson County
M2001-01561-COA-R3-CV
Authoring Judge: Judge Ben H. Cantrell
Trial Court Judge: Ellen Hobbs Lyle
A man arrested for statutory rape sought a writ of mandamus to compel the Metro Nashville Police Department to furnish him with copies of records relating to his arrest. Metro filed a motion to dismiss, arguing that records pertaining to sexual offenses against minors are confidential, and may not be disclosed. The trial court denied the motion to dismiss, and ordered the production of the requested records. We affirm the ruling of the trial court, but modify it to require that all records furnished to the petitioner be redacted to protect the victim's identity.

State of Tennessee v. Charles Randall Elrod
M2001-01125-CCA-R3-CD
Authoring Judge: Judge Joe G. Riley
Trial Court Judge: Judge Robert W. Wedemeyer

The defendant was convicted at a bench trial of three counts of aggravated assault and received an effective sentence of ten years. In this appeal, the defendant contends (1) the evidence was insufficient to sustain the convictions; (2) he was denied the right to testify; and (3) the sentence was excessive. After a thorough review of the record, we affirm.

State of Tennessee v. Clifford Coleman, Sr.
M2000-01916-CCA-R3-CD
Authoring Judge: Presiding Judge Gary R Wade
Trial Court Judge: Judge Robert L. Jones

The defendant, Clifford Coleman, Sr., was convicted of first degree murder and sentenced to life in prison. In this appeal of right, the defendant argues as follows: (1) The evidence was insufficient to support his conviction for first degree murder; (2) the trial court erred by denying his requested jury instruction on deliberation; (3) the trial court erred by failing to instruct the jury on the lesser included offenses of reckless homicide and criminally negligent homicide; (4) the trial court erred by failing to grant a mistrial after dismissing a juror; and (5) the trial court erred by failing to grant a mistrial after a witness was allowed to testify in violation of the rule of sequestration. The judgment of the trial court is affirmed.

Jason Goulet vs. Jennifer Heede
E2000-02535-COA-R3-CV
Authoring Judge: Judge William B. Cain
Trial Court Judge: Norma Mcgee Ogle
This appeal concerns a divorce action in which the court classified a home purchased by Wife during the marriage as her separate property and a second mortgage taken out by Husband on the couple's marital home as his separate debt. Husband appeals both of these decisions and also questions the trial court's decision to find Wife's testimony credible, since she had previously given testimony in another matter that was inconsistent with her testimony at the divorce hearing. We determine that the trial court should be affirmed on all issues presented.

Michael M. Taylor v. State of Tennessee
M2000-03205-CCA-R3-PC
Authoring Judge: Judge J. Curwood Witt, Jr.
Trial Court Judge: Judge J. Randall Wyatt, Jr.

The petitioner, Michael M. Taylor, has filed a petition for post-conviction relief to challenge his 1997 second degree murder conviction imposed after a jury trial in the Davidson County Criminal Court. The petition alleges the ineffective assistance of trial counsel and two trial court errors. After the appointment of counsel and counsel's amendment of the post-conviction petition, the post-conviction court conducted an evidentiary hearing. Subsequently, the post-conviction court made findings of fact and on November 13, 2000 entered an order denying post-conviction relief. The petitioner filed a notice of appeal on February 23, 2001. Because the notice of the appeal was untimely and because the record contains no for basis for excusing the untimely filing of notice of appeal, we dismiss the appeal.