State of Tennessee v. Patrick D. Paris
E2000-02672-CCA-R3-CD
Authoring Judge: Judge Joseph M. Tipton
Trial Court Judge: Judge Stephen M. Bevil

The defendant, Patrick D. Paris, appeals from his convictions for attempted first degree murder and especially aggravated robbery, contending that the evidence is insufficient to support his convictions and that the trial court erred by allowing hearsay testimony into evidence as an excited utterance. We affirm the judgments of conviction.

State of Tennessee v. David Glenn Ayers
E2000-03074-CCA-R3-CD
Authoring Judge: Presiding Judge Gary R Wade
Trial Court Judge: Judge James B. Scott, Jr.

The defendant, David Glenn Ayers, was convicted of driving under the influence, second offense. The trial court imposed a sentence of 11 months and 29 days with release eligibility after service of 75%. In this appeal of right, the defendant challenges the sufficiency of the evidence, argues that the trial court should have set aside the verdict as thirteenth juror, and contends that the sentence is excessive. The judgment is affirmed.

State of Tennessee v. James M. Brent
M2000-02369-CCA-R3-CD
Authoring Judge: Judge Jerry L. Smith
Trial Court Judge: Judge J. Steve Daniel

A Rutherford County jury convicted the defendant of driving under the influence of an intoxicant. The trial court sentenced the defendant to eleven months and twenty-nine days to be served in a local workhouse. The court required the defendant to serve forty-eight hours and allowed the defendant to serve the remainder of his sentence on probation. The defendant subsequently moved for a new trial and then amended his motion. The trial court denied his amended motion, and the defendant appeals this denial, alleging that the evidence presented at trial was insufficient to support his conviction, that the trial court erred by allowing testimony regarding the defendant's refusal to submit to a blood alcohol test, and that the trial court erred by instructing the jury that they could consider this refusal as evidence of the defendant's consciousness of guilt. After reviewing the record and applicable case law, we find that these issues lack merit and therefore affirm the trial court's denial of the defendant's motion for new trial.

State of Tennessee v. Stanley Boxley
W2000-00983-CCA-R3-CD
Authoring Judge: Judge Robert W. Wedemeyer
Trial Court Judge: Judge W. Fred Axley

The Defendant, Stanley Boxley, was convicted by a jury of first degree felony murder and attempted aggravated robbery. He was sentenced to life imprisonment for the murder and to a consecutive ten year term for the attempted aggravated robbery. In this appeal as of right the Defendant contends that there is insufficient evidence to sustain his convictions and that the trial court erred by ruling that the State could introduce evidence of threats against the accomplice witnesses if the Defendant inquired into the prosecution's recommendation that they receive probation. Finding the evidence insufficient to corroborate the accomplices' testimony, we reverse the Defendant's convictions and dismiss.

State of Tennessee v. Melvin M. Melson
W2000-03130-CCA-R3-CD
Authoring Judge: Judge Robert W. Wedemeyer
Trial Court Judge: Judge C. Creed McGinley

The Defendant pled guilty to two counts of aggravated sexual battery, and the trial court sentenced the Defendant pursuant to his plea agreement to two concurrent ten-year sentences. In this appeal as of right, the Defendant argues that the trial court erred by denying his request that he serve his sentence on community corrections. Because we conclude that the sentence imposed is adequately supported by the record, and that the trial court did not err by refusing to allow the Defendant to serve his sentence on community corrections, we affirm the judgment of the trial court.

Walter L. Johnson v. State of Tennessee
W2001-00382-CCA-R3-PC
Authoring Judge: Judge Robert W. Wedemeyer
Trial Court Judge: Judge Chris B. Craft

The Petitioner was convicted of especially aggravated kidnapping and sentenced to twenty-five years incarceration. The conviction and sentence were affirmed on direct appeal. Subsequently, the Petitioner filed a petition for post-conviction relief, alleging that his attorney at trial was ineffective. The post-conviction court denied relief. We affirm the judgment of the post-conviction court.

Southern Constructors, Inc. vs. Loudon Co. Bd. of Education
E2000-02577-SC-S09-CV
Authoring Judge: Justice William M. Barker
Trial Court Judge: Frank V. Williams, III
The issue in this case is whether a county board of education has the authority to arbitrate a dispute arising out of a school construction contract. After the parties completed arbitration, the plaintiff filed suit to vacate the award, arguing that the defendant, a county board of education, lacked the statutory authority to agree to arbitration. The defendant unsuccessfully moved for summary judgment, and it sought interlocutory appeal with the trial court's permission. The intermediate court, however, denied the interlocutory appeal, finding that the trial court's decision was consistent with prior cases from the Eastern Section Court of Appeals. We granted permission to appeal and hold that the rule of strict construction of local governmental powers should be retained. We also hold, though, that the power to arbitrate construction contract disputes is fairly implied from the express authority to enter into construction contracts. We therefore reverse the trial court's denial of summary judgment and dismiss the case.

State of Tennessee v. Mary Jane Burchfield McMahan
E2000-03156-CCA-R3-CD
Authoring Judge: Judge Joe G. Riley
Trial Court Judge: Judge D. Kelly Thomas, Jr.

The defendant appeals the trial court's revocation of her probation. After a thorough review of the record, we affirm the judgment of the trial court.

State of Tennessee v. William Orlando Crutcher
M2001-00335-CCA-R3-CD
Authoring Judge: Judge David H. Welles
Trial Court Judge: Judge J. Randall Wyatt, Jr.

The Defendant, William Orlando Crutcher, pled guilty to three counts of aggravated sexual battery and two counts of attempted rape of a child. After a sentencing hearing, the trial court imposed a ten year sentence for each of the Defendant's five convictions and ordered that the three aggravated sexual battery convictions be served consecutively, for an effective sentence of thirty years. On appeal, the Defendant challenges the trial court's imposition of consecutive sentences. We affirm the judgment of the trial court.

State of Tennessee v. Lentonio Marcel Swanson
M2000-02899-CCA-R3-CD
Authoring Judge: Judge Joe G. Riley
Trial Court Judge: Judge J. Randall Wyatt, Jr.

The defendant appeals his consecutive sentences totaling 29 years for two counts of aggravated robbery and one count of aggravated assault. He contends the trial court erred in setting the length of each sentence and in ordering the sentences to be served consecutively. After a thorough review of the record, we affirm the judgment of the trial court.

State of Tennessee v. Quentin D. Armstrong
M2001-00227-CCA-R3-CD
Authoring Judge: Judge David H. Welles
Trial Court Judge: Judge Steve R. Dozier

The Defendant, Quentin D. Armstrong, was convicted of two counts of aggravated assault in the Criminal Court of Davidson County. The trial court merged the second count into the first and sentenced the Defendant to six years. In his appeal as of right, the Defendant contends that (1) the evidence was insufficient to support his convictions for aggravated assault and (2) the trial court erred in refusing to instruct the jury concerning self-defense. We affirm the judgment of the trial court.

Katy Wilson, et al vs. Dickson County
M2000-02680-COA-R3-CV
Authoring Judge: Sr. Judge William H. Inman
Trial Court Judge: Allen W. Wallace
This is a GTLA action for damages for wrongful death caused by the admitted negligence of a paramedic, (who enjoyed no immunity) employed by the county, which enjoyed immunity. Pecuniary damages of $385,000 for the value of the decedent's life were awarded, together with a separate award of $500,000 for "consortium-type damages." As against the County and its ambulance service, the total award cannot exceed $130,000. As against the paramedic the award is limited only by the standard of reasonableness. The total award is reduced to $500,000.

Richard Johnson vs. Stoney Hunter
M2000-03099-COA-R3-CV
Authoring Judge: Sr. Judge William H. Inman
Trial Court Judge: Thomas W. Brothers

Richard Johnson vs. Stoney Hunter
M2000-03099-COA-R3-CV
Authoring Judge: Sr. Judge William H. Inman
Trial Court Judge: Thomas W. Brothers

State of Tennessee v. Ricky Lynn Earls
M2001-00063-CCA-R3-CD
Authoring Judge: Judge Joseph M. Tipton
Trial Court Judge: Judge Franklin Lee Russell

The defendant, Ricky Lynn Earls, appeals from his conviction for theft of property valued over $1,000, contesting the sufficiency of the evidence. We affirm the judgment of conviction.

Precision Mechanical Contractors vs. Metropolitan Development and Housing Agency
M2000-02117-COA-R3-CV
Authoring Judge: Presiding Judge Alan E. Highers
Trial Court Judge: Ellen Hobbs Lyle
This appeal arises from a dispute over two construction contracts. One contract involved the replacement of furnaces at the Preston Taylor Homes Housing Project, and the other contract was for underground utilities and site work at the Tony Sudekum Homes Housing Project. Plaintiff filed suit seeking additional compensation based upon its performance of the two contracts with Defendant. The trial court granted Defendant's motion for an involuntary dismissal after the close of Plaintiff's proof. For the following reasons, we affirm.

In re: Rhoda Armster
M2000-00776-COA-R3-CV
Authoring Judge: Presiding Judge Patricia J. Cottrell
Trial Court Judge: Robert L. Holloway
This appeal involves a conservatorship action and an effort to set aside a will and related documents. Mrs. Armster executed a living trust, in which she named herself as the beneficiary during her life time. She also executed a will, which devised her entire estate to the trust and named The Bible Hygiene New Direction Training Center as beneficiary of the trust upon her death. Appellant, a child of Mrs. Armster, filed suit in Chancery Court and sought to: (1) have a conservator appointed for his mother to manage her legal and financial affairs; (2) have the trust and will set aside on the basis that his mother did not have sufficient mental capacity to execute the documents; and (3) have the will set aside because it was obtained as a result of undue influence. The trial court did not appoint a conservator and found that Mrs. Armster had the requisite mental capacity to execute the documents. Further, the court found that the will was valid as it was not the result of undue influence. We affirm the decisions of the trial court.

State of Tennessee v. Terry Lee Robinson
M2000-00995-CCA-MR3-CD
Authoring Judge: Judge Joseph M. Tipton
Trial Court Judge: Judge Cheryl A. Blackburn

The defendant, Terry Lee Robinson, appeals from his conviction by a jury for first degree murder, for which he was sentenced to life imprisonment. He contends that (1) the evidence was insufficient, (2) the trial court erroneously prohibited a defense expert from testifying as to the victim’s cause of death, (3) the trial court admitted evidence of the defendant’s prior conduct in violation of Tenn. R. Evid. 404(b), (4) he was denied a fair trial because the jury was composed of ten women and two men, and (5) he was denied a fair trial because a television movie about a man fatally poisoning his wife with cyanide aired during the trial. Although we hold that the trial court erred regarding the defendant’s expert and the prior conduct evidence, we conclude the errors were harmless. We affirm the judgment of conviction.

State of Tennessee v. Jerry Lane Rubert
M2000-00914-CCA-R3-CD
Authoring Judge: Judge Jerry L. Smith
Trial Court Judge: Judge Robert L. Holloway

A Maury County grand jury indicted the defendant, Jerry Lane Rubert, for two counts of aggravated kidnapping and three counts of especially aggravated rape. The defendant moved to suppress the evidence seized from his vehicle, as well as the evidence and statements derived from that seizure, on the grounds that the evidence was illegally seized. The trial court denied the defendant's motion, and at trial the prosecution introduced the evidence at issue. After the conclusion of this trial, a Maury County jury found the defendant guilty on all counts. The defendant now brings this appeal, challenging the trial court's denial of his motion to suppress. After reviewing the record and the applicable law, we find that the defendant's allegations do not merit relief, and therefore affirm his convictions.

State of Tennessee v. James David Alder
M2000-01804-CCA-R3-CD
Authoring Judge: Judge J. Curwood Witt, Jr.
Trial Court Judge: Judge Buddy D. Perry

The defendant, James David Alder, appeals from his convictions and sentences which he received in the Franklin County Circuit Court. After a change of venue from Sequatchie County and a jury trial in Franklin County, the trial court imposed the following convictions and sentences: aggravated assault, ten years (Range II); kidnapping, ten years (Range II); and unlawful possession of a deadly weapon, eleven months and 29 days (Class A misdemeanor). The trial court ordered the felony sentences to run consecutively to each other but concurrently with the misdemeanor, for an effective sentence of twenty years. On appeal, the defendant complains that the trial court erred (1) in refusing to grant a mistrial after the victim testified that she had obtained an order of protection against the defendant and (2) in imposing the sentences. After our review of the record, the briefs of the parties, and the applicable law, we affirm the lower court's felony judgments but vacate and modify the misdemeanor judgment.

Eric Bernard Howard v. State of Tennessee
M2001-00405-CCA-R3-PC
Authoring Judge: Judge David H. Welles
Trial Court Judge: Judge Seth W. Norman

The Defendant, Eric Bernard Howard, was convicted of two counts of aggravated robbery in the Criminal Court of Davidson County and sentenced to consecutive terms of seventeen years for each conviction. The Defendant now seeks post-conviction relief alleging that he was denied effective assistance of counsel. The trial court denied relief. We affirm.

Janie Lou Cobb v. Henry I. Siegel, Inc.
W2000-02656-WC-R3-CV
Authoring Judge: Joe C. Loser, Jr., Sp. J.
Trial Court Judge: C. Creed Mcginley, Judge
This workers' compensation appeal has been referred to the Special Workers' Compensation Appeals Panel in accordance with Tenn. Code Ann. _ 5-6-225(e)(3) for hearing and reporting of findings of fact and conclusions of law. In this appeal, the employer contends the evidence preponderates against the trial court's award of permanent partial disability benefits based on 42 percent to the body as a whole. As discussed below, the panel has concluded the judgment should be affirmed. Tenn. Code Ann. _ 5-6-225(e)(3) (2) Appeal as of Right; Judgment of the Circuit Court Affirmed. JOE C. LOSER, JR., SP. J., in which JANICE M. HOLDER, J., and ROBERT L. CHILDERS, SP. J., joined. Jill A. Hanson, Nashville, Tennessee, for the appellant, Henry I. Siegel Company. Donald E. Parish, Huntingdon, Tennessee, for the appellee, Janie Lou Cobb. MEMORANDUM OPINION The employee or claimant, Cobb, is 57 years old with a high school education, but a low intelligence level, and no vocational training. She has spent her working career in production work and worked for the employer, Henry I. Siegel Company, for 33 years. It is undisputed she suffered a compensable low back injury on March 22, 1999. Because of the disability from that injury, she has not worked since the employer closed its factory on December 17, 1999. Following her injury, the claimant chose Dr. Claiborne Christian. Dr. Christian provided conservative care and ordered a magnetic resonance imaging scan (MRI). The MRI revealed a herniated nucleus pulposus on the left side. Dr. Christian estimated her permanent impairment at none, but referred her to a neurosurgeon, Dr. John Brophy. Dr. Brophy agreed with the diagnosis and produced a written report, but expressed no opinion as to the extent of the claimant's permanent impairment. She was referred to Dr. Robert Barnett, for examination and evaluation. Dr. Barnett estimated her permanent medical impairment from the injury to be 7 percent, using AMA guidelines. A vocational expert estimated her vocational impairment to be 95 percent, considering, among other things, the claimant's physical limitations.1 The claimant testified that she is unable to work. The trial judge, after making specific findings of fact as required byTenn. Code Ann. _ 5-6- 241, awarded permanent partial disability benefits based on six times the medical impairment rating or 42 percent. 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). 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 which 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, 177 (Tenn. 1999). The extent of an injured worker's vocational disability is a question of fact. Story v. Legion Ins. Co., 3 S.W.3d 45, 456 (Tenn. 1999). The appellant argues the medical evidence preponderates against the trial court's finding of permanency because he should have accepted the testimony of the treating physician, Dr. Christian. 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 not persuaded the trial court abused its discretion by accepting the opinion of Dr. Barnett. The appellant argues that the opinion of the vocational expert should have been ignored because it is based in part on information provided by the claimant as to her limitations. Notably, the claimant gave similar testimony to the trial judge, who expressly found her to be a truthful person. Trial courts have broad discretion to determine whether to accept or reject the opinion of a proffered expert. We find no abuse of that discretion in this case. The appellant argues the award is excessive because there is no medical evidence of 1 The claimant testified about her limitations, but none of the doctor s specifically prescribed any restrictions. -2-

Edwin H. Madewell v. The Travelers Insurance Company
M2000-01793-WC-R3-CV
Authoring Judge: Joe C. Loser, Jr., Sp. J.
Trial Court Judge: L. Craig Johnson, Chancellor
This workers' compensation appeal has been referredto the Special Workers' CompensationAppeals 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 employer's insurer insists (1) the trial court erred in accepting the opinion of Dr. Ray Hester over that of Dr. Roger Zwemer as to the extent of the employee's permanent medical impairment, (2) the trial court erred in awarding permanent partial disability benefits in an amount that exceeds two and one- half times the medical impairment rating, (3) the trial court erred in awarding temporary total disability benefits, (4) the award of permanent partial disability benefits is excessive, (5) the defendant is entitled to a setoff, and (6) the trial court erred in commuting permanent partial disability benefits to a lump sum. As discussed below, the panel has concluded the award of temporary total disability benefits and the lump sum award should be modified, and a setoff allowed for payments made under an employer-funded disability plan, but the judgment otherwise affirmed. Tenn. Code Ann. _ 5-6-225(e) (2) Appeal as of Right; Judgment of the Chancery Court Affirmed as Modified. JOE C. LOSER, JR., SP. J., in which ADOLPHO A. BIRCH, JR., J., and JAMES WEATHERFORD, SR. J., joined. Robert J. Uhorchuk, Chattanooga, Tennessee, for the appellant, The Travelers Insurance Company. Robert S. Peters, Winchester, Tennessee, for the appellee, Edwin H. Madewell. MEMORANDUM OPINION The employee or claimant, Madewell, is 6 years old with a high school education and some college credits and electronics training. He worked for his employer as an instrument technician at Arnold Air Force Base from April 11, 1966 until 1999. He has computer skills and knowledge of both mechanical and electronic blueprints and can build and maintain instruments and machinery. His work required some physical activities. In August of 1998, the claimant felt a shooting pain in his left leg while at work. When the employer provided a list of physicians, he saw Dr. Zwemer and lost several days of work. Dr. Zwemer provided conservative care for several months and, finding no objective evidence of injury, estimated his permanent impairment at 5 percent to the body and returned the claimant to work. Upon returning to work, the pain recurred and he saw Dr. Bills, who ordered magnetic resonance imaging and referred him to Dr. Hester, a neurosurgeon. Dr. Hester diagnosed a disc herniation and assessed his permanent impairment at 1 percent to the whole person. Dr. Hester also prescribed permanent restrictions from bending from the waist while standing and from working with his arms out front. The restrictions prohibit him from working as an instrument technician. When he was unable to return to his job, the employer offered and the claimant accepted early retirement. The claimant testified at trial that he continues to suffer disabling pain and is unable to participate in hobbies or perform his former duties. The trial court awarded, inter alia, permanent partial disability benefits based on 4 percent to the body as a whole. 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). The reviewing court is required to conduct an independent examination of the record to determine where the preponderance of the evidence lies.

Donald Ray Pannell v. State of Tennessee
M2001-00675-CCA-R3-PC
Authoring Judge: Judge David G. Hayes
Trial Court Judge: Judge W. Charles Lee

The Appellant, Donald Ray Pannell, appeals from the dismissal of his petition for post-conviction relief. Pannell was convicted by a Marshall County jury of burglary, burglary of an automobile, and theft. He was sentenced as a Career Offender to eighteen years in the Department of Correction. On appeal, Pannell argues: (1) that the trial judge erred in not recusing himself from presiding over the case, and (2) that he received ineffective assistance of counsel. After review, we affirm the judgment of the post-conviction court dismissing the petition.

State of Tennessee v. Frank C. Pease
E2000-02469-CCA-R3-CD
Authoring Judge: Judge Joe G. Riley
Trial Court Judge: Judge James B. Scott, Jr.

The defendant, Frank C. Pease, appeals his conviction for criminal contempt. The sole issue for our determination is whether the evidence was sufficient to support his conviction. Since the contempt finding was based upon defendant's anticipated, rather than actual, refusal to follow the court's order, we reverse the judgment of the trial court.