Opinions

Charles Bryant v. State of Tennessee
M2001-02456-CCA-R3-PC
Authoring Judge: Judge Thomas T. Woodall
Trial Court Judge: Judge L. Craig Johnson

Petitioner/Appellant, Charles Bryant, filed a petition for post-conviction relief on August 3, 2001, attacking his conviction on July 18, 1997, for violation of the Motor Vehicle Habitual Offender Act. According to the allegations in the petition, there was no appeal from the conviction to which he pled guilty and received a sentence of four years as a multiple Range II offender. The trial court summarily dismissed the petition because it was filed outside of the applicable statute of limitations. We affirm.

State of Tennessee v. Robert Gentry Galbreath
M2001-02495-CCA-R3-CD
Authoring Judge: Judge Robert W. Wedemeyer
Trial Court Judge: Judge Lee Russell

A Bedford County jury convicted the defendant of twelve counts of obtaining a controlled substance, Hydrocodone, by fraud during the period from August 15, 2000 through September 8, 2000. The trial court sentenced the defendant to twelve years on each count and imposed a fine of $2,000 for each count. The trial court ordered that counts 1-4 run concurrently; that counts 5-8 run concurrently, but consecutive to counts 1-4; and that counts 9-12 run concurrently, but consecutive to all other counts, for an effective sentence of thirty-six years. On appeal, the defendant contends that the evidence is not sufficient to support eleven of his twelve convictions for fraud and that the trial court erred in sentencing him to thirty-six years in prison. Finding no error, we affirm the judgment of the trial court.

State of Tennessee v. Joel Wayne Jackson and Joel Keith Russell
W2001-00587-CCA-R3-CD
Authoring Judge: Judge Norma McGee Ogle
Trial Court Judge: Judge C. Creed McGinley

The appellants, Joel Wayne Jackson and Joel Keith Russell, were each convicted in the Hardin County Circuit Court of one count of possessing more than .5 grams of cocaine with intent to sell. They were each sentenced to eight years incarceration in the Tennessee Department of Correction with the sentences to be served on supervised probation after serving ninety days in confinement. On appeal, Jackson challenges the correctness of his sentence and Russell contests the sufficiency of the evidence supporting his conviction. Upon review of the record and the parties' briefs, we affirm the judgments of the trial court

State of Tennessee v. Stanley R. Fine
E2001-03177-CCA-R3-CD
Authoring Judge: Judge David H. Welles
Trial Court Judge: Judge Thomas W. Graham

The defendant, Stanley R. Fine, pled guilty to the offenses of burglary and aggravated burglary. His plea agreement provided that he would serve a four year sentence for the aggravated burglary, with one year to be served in the county jail and the balance of three years to be served in the community corrections program. With respect to the burglary charge, the plea agreement included an agreed sentence of four years to be served in the community corrections program consecutive to the sentence for aggravated burglary, resulting in an effective sentence of eight years. Following the defendant's violation of the terms of his community corrections sentence, the trial court revoked the defendant's community corrections status and ordered that the remainder of his sentence be served in the Department of Correction. The defendant now appeals the trial court's ruling. We affirm the judgment of the trial court.

Barton Hawkins v. Dept of Correction
M2001-00473-COA-R3-CV
Authoring Judge: Presiding Judge Patricia J. Cottrell
Trial Court Judge: Walter C. Kurtz
Petitioner, a state inmate, filed the underlying pro se petition for writ of certiorari to challenge the result of a prison disciplinary proceeding against him. The trial court dismissed the suit sua sponte for improper venue. Because the legislature has localized venue for actions brought by inmates to the county where the prison facility is located, we affirm the decision of the trial court, but remand for transfer to the appropriate trial court.

State of Tennessee v. Tricia Ann Landry
E2001-02567-CCA-R3-CD
Authoring Judge: Presiding Judge Gary R Wade
Trial Court Judge: Judge W. Dale Young

The defendant, Tricia Ann Landry, was convicted of theft over $500.00 and theft over $1,000.00. The trial court imposed concurrent Range I sentences of two years and three years, respectively. Later, the defendant was determined to have violated her probation. The trial court ordered service of the sentence in the Department of Correction. In this appeal of right, the defendant argues that the trial court should have granted an alternative sentence. The judgment is affirmed.

State of Tennessee v. Michael Scott Brogan
E2001-00712-CCA-R3-CD
Authoring Judge: Presiding Judge Gary R Wade
Trial Court Judge: Judge Bobby H. Capers

The defendant, Michael Scott Brogan, entered pleas of guilt to second degree murder and attempted second degree murder. The trial court imposed concurrent sentences of 20 years and 8 years, respectively. In this appeal of right, the defendant asserts that his sentence for second degree murder is excessive. Because the trial court misapplied several enhancement factors, the sentence for second degree murder is modified to 18 years. Otherwise, the judgments are affirmed.

David Crockett v. Rutherford County
M2000-01405-COA-R3-CV
Authoring Judge: Judge Jane W. Wheatcraft
Trial Court Judge: Robert E. Corlew, III
4899". The Chancery Court of Rutherford County found that the rezoning had "elements" of arbitrariness and capriciousness and amounted to spot zoning; nonetheless, the Court deferred to the Rutherford County Commission, upheld the zoning change, and dismissed the Plaintiff's lawsuit. The issues presented for appeal are whether the Chancellor erred as a matter of law by granting deference to the Rutherford County Commission on the zoning issue in spite of the Court's factual findings in favor of Plaintiff, and whether the Trial Court erred in finding that the zoning amendment did not violate the Establishment Clauses of the United States and Tennessee Constitutions.

James E. Johnson v. Bd. of Medical Examiners
M2002-00048-COA-R3-CV
Authoring Judge: Judge Holly M. Kirby
Trial Court Judge: Irvin H. Kilcrease, Jr.
This case involves the revocation of a physician's medical license. A patient saw a physician regarding a chronic skin condition. A series of unorthodox treatment methods resulted in the patient having upper respiratory problems, pain, dizziness, blurred vision, a small stroke, infection, and an abscess that had to be surgically drained and removed. As a result, the Tennessee Department of Health filed charges against the physician. After an administrative hearing, the Tennessee Board of Medical Examiners found that the physician engaged in unprofessional and unethical conduct, committed acts of gross malpractice, and demonstrated a pattern of incompetence and ignorance in the course of medical practice. The Board revoked the physician's medical license and assessed civil penalties. The physician sought judicial review in the chancery court. The chancellor affirmed the civil penalties but reversed the Board's revocation of the physician's medical license. The Tennessee Department of Health and the Tennessee Board of Medical Examiners appeal, arguing that the trial court substituted its judgment for the judgment of the Board. We reverse the ruling of the trial court, finding that the Tennessee Board of Medical Examiners did not abuse its discretion, did not act arbitrarily or capriciously, and that its revocation of the physician's medical license was supported by substantial and material evidence. Thus, we reinstate the Board's decision to revoke the physician's medical license.

Veriteena Hollins vs. Covington Pike Chrysler-Plymouth
W2002-00492-COA-R3-CV
Authoring Judge: Presiding Judge Alan E. Highers
Trial Court Judge: Robert L. Childers
Ms. Hollins filed suit against Covington Pike Chrysler-Plymouth in general sessions court. On the day of the scheduled trial, Ms. Hollins' counsel announced a judgment for the defendant. Both parties agree that this judgment was announced in order to move the case from general sessions court to circuit court. Ms. Hollins never appealed the judgment. Eleven months later she refiled the case in general sessions court. The sessions court dismissed the case finding it to be res judicata. Ms. Hollins appealed this decision to circuit court. The circuit court granted Covington Pike Chrysler-Plymouth's motion for summary judgment on the basis of res judicata. We agree.

Thomas Ponchik vs. Don Paul, et al
W2002-00150-COA-R3-CV
Authoring Judge: Judge W. Frank Crawford
Trial Court Judge: Jon Kerry Blackwood
Plaintiff, an inmate at a correctional facility, filed a complaint against the facility's private management company and its employees, alleging violations of prisoner's rights under the United States Constitution. The trial court dismissed the complaint for failure to state a claim upon which relief can be granted. Inmate appeals. We affirm.

Brian Oakley et al. vs. State
W2002-00095-COA-R3-CV
Authoring Judge: Presiding Judge Alan E. Highers
This appeal involves the decision of the Claims Commission to dismiss the claimants' case for failure to prosecute. The claimants filed suit against the State alleging "negligent care, custody, and control of persons" after their father was killed by a juvenile inmate at the John S. Wilder Youth Development Center. The Claims Commission, finding that the claimants had failed to take action in over one year, granted the State's Motion to Dismiss for Failure to Prosecute. The claimants appeal the Claims Commission's order dismissing their case for failure to prosecute.

Glenna Grissom vs. State
W2001-03021-COA-R3-CV
Authoring Judge: Judge Holly M. Kirby
This is a Claims Commission case that was dismissed for failure to prosecute. In July 2000, the claimant filed a lawsuit with the Tennessee Claims Commission against the State of Tennessee. The State filed its answer in October 2000. In September 2001, the State filed a motion to dismiss for failure to prosecute, relying on Tennessee Code Annotated section 9-8-402(b), which provides for dismissal of a claim with the Claims Commission if the claimant does not take action to advance the claim for a one-year period, unless the claimant received prior written consent from the Commission. In November 2001, the Commission entered an order granting the State's motion to dismiss. On appeal, the claimant argues that the one-year period should be tolled pending a response to her complaint by the State. We affirm, finding that the statutory one-year period began to run when the claim was filed.

Roy Ernest Young v. Joylee Mayhew
W2002-00185-COA-R3-JV
Authoring Judge: Judge David R. Farmer
Trial Court Judge: Daniel L. Smith

State of Tennessee v. Demetrius Kendale Holmes
E2001-00660-CCA-R3-CD
Authoring Judge: Presiding Judge Gary R Wade
Trial Court Judge: Judge Richard R. Baumgartner

The defendant, Demetrius Kendale Holmes, was convicted of felony murder and especially aggravated robbery. The trial court imposed consecutive sentences of life and 24 years, respectively. In this appeal of right, the defendant asserts that the evidence is insufficient to support his convictions. The judgments of the trial court are affirmed.

State of Tennessee v. Claude W. Cheeks - Dissenting
E2001-00198-CCA-R3-CD
Authoring Judge: Judge Joseph M. Tipton
Trial Court Judge: Judge Rebecca J. Stern
I respectfully dissent from the result reached in the majority opinion. I believe the evidence justifies the convictions. That is, the jury had the right under the evidence to discredit the expert witnesses’ opinions to the extent that the appellant could be found guilty of the offenses charged.

State of Tennessee v. Claude W. Cheeks
E2001-00198-CCA-R3-CD
Authoring Judge: Judge Norma McGee Ogle
Trial Court Judge: Judge Rebecca J. Stern
The appellant, Claude W. Cheeks, was convicted by a jury in the Hamilton County Criminal Court of one count of especially aggravated robbery and two counts of aggravated assault. The trial court sentenced the appellant to a total effective sentence of twenty-five years incarceration in the Tennessee Department of Correction. On appeal, the appellant specifically raises the following issues: (1) “whether the trial court erred in allowing the jury to consider the evidence where the State’s doctors all supported the insanity defense and there was no sufficient lay testimony, nor other testimony that contradicted the insanity defense,” and (2) “whether it is permissible for the State to seek the assistance of expert witnesses in the field of psychiatry, then to provide the experts the information on which to base their opinion, and then at trial to reject the State’s experts and attack their results and offer no proof.” Upon review of the record and the parties’ briefs, we reverse the judgments of the trial court on all three counts, institute verdicts of not guilty by reason of insanity on each count, and remand for proceedings pursuant to Tenn. Code Ann. § 33-7-303 (2001).

The Bank/First Citizens Bank v. Citizens And Associates
E2000-02545-SC-R11-CV
Authoring Judge: Justice William M. Barker
Trial Court Judge: Russell E. Simmons, Jr.

State vs. William Torres
E1999-00866-SC-DDT-DD
Authoring Judge: Justice Frank F. Drowota, III
Trial Court Judge: Ray L. Jenkins
The defendant, William Pierre Torres, was convicted of first degree murder by aggravated child abuse for the killing of his son, fifteen- month-old Quintyn Pierre James Wilson. Following a sentencing hearing, the jury found two aggravating circumstances: (1) "the murder was committed against a person less than twelve (12) years of age and the defendant was eighteen (18) years of age, or older" and (2) "the murder was especially heinous, atrocious, or cruel in that it involved torture or serious physical abuse beyond that necessary to produce death." Finding that these aggravating circumstances outweighed mitigating circumstances beyond a reasonable doubt, the jury imposed a sentence of death for the first degree murder conviction. The Court of Criminal Appeals affirmed both the conviction and sentence. The case was docketed and argued in this Court, and after carefully reviewing the record and the relevant legal authorities, we affirm the defendant's conviction of first degree murder. Because the trial court erred by giving the jury an instruction pursuant to Kersey v. State, 525 S.W.2d 139 (Tenn. 1975), rather than accepting the jury's report of a deadlock, the sentence of death is reversed and the case is remanded to the trial court for a new sentencing hearing at which the jury shall only consider the sentences of imprisonment for life without possibility of parole and imprisonment for life.

State of Tennessee v. Jerry O. Summers
M2001-01358-CCA-R3-CD
Authoring Judge: Judge Joseph M. Tipton
Trial Court Judge: Judge Timothy L. Easter

The defendant, Jerry O. Summers, appeals from the Williamson County Circuit Court’s revoking his probation that was ordered for his sentence for aggravated burglary. The defendant contends that although he violated his probation, the trial court erred in sentencing him to confinement. We affirm the judgment of the trial court.

State of Tennessee v. Daryl Lee Madden and Marty Dale Williams
M2000-02227-CCA-R3-CD
Authoring Judge: Judge Joe G. Riley
Trial Court Judge: Judge Cheryl A. Blackburn
A Davidson County Grand Jury returned a three-count indictment alleging the defendants committed felony murder during the perpetration of a robbery, especially aggravated robbery, and premeditated first degree murder. A Davidson County jury convicted the defendants of felony murder, especially aggravated robbery, and second degree murder. The second degree murder was merged into the felony murder by the trial court. Madden received an effective sentence of life plus 25 years; Williams received an effective sentence of life. In this appeal, both defendants contend the evidence was insufficient to sustain their convictions for felony murder and especially aggravated robbery, and their sentences were excessive. Defendant Madden additionally contests his conviction for second degree murder and the trial court's certification of the trial transcript. After a review of the record, we affirm the judgments of the trial court.

State of Tennessee v. Rhonda Patricia Mayes
M2001-00423-CCA-R3-CD
Authoring Judge: Judge John Everett Williams
Trial Court Judge: Judge William Charles Lee

Defendant was convicted of two counts of possession of cocaine with intent to sell and two counts of simple possession of cocaine. The trial court merged the two counts of possession of cocaine with intent to sell into one count and merged the two counts of simple possession of cocaine into one count. The trial court sentenced the defendant to concurrent sentences of eight years and eleven months and twenty-nine days, respectively, thus imposing an effective eight-year sentence. Defendant appealed on four grounds: (1) there was insufficient evidence to support the conviction for possession with intent to sell cocaine; (2) a search warrant failed to state sufficient facts to establish probable cause to search defendant's apartment; (3) the indictment was multiplicitous; and (4) the trial court erred in ruling that the State could use defendant's prior conviction to show intent. We conclude that all convictions should merge into a single judgment of conviction for possession of cocaine with intent to sell; thus, we vacate the sentence relating to simple possession of cocaine, although this will not change the effective eight-year sentence.

State of Tennessee v. Philip R. Haven
M2001-00332-CCA-R3-CD
Authoring Judge: Judge Jerry L. Smith
Trial Court Judge: Judge Timothy L. Easter

A Williamson County grand jury indicted the defendant on alternative counts of driving under the influence of an intoxicant and of driving with a .10% or more alcohol concentration in his blood or breath. At the conclusion of the proof, the trial jury convicted the defendant of the latter offense and assessed a fifteen hundred dollar fine. At sentencing, the trial court approved the fine assessed and further sentenced the defendant to six months to be suspended after the service of thirty days, day for day. Additionally, the court placed the defendant on supervised probation for eleven months and twenty-nine days during which time, among other conditions, the defendant was to complete alcohol safety school. Subsequently, the defendant filed a motion for a new trial or judgment of acquittal, which the trial court denied. Through this appeal the defendant contends that the trial court erred in 1) not excusing four jurors for cause; 2) permitting the prosecutor to make ingratiating statements to the jury during voir dire; 3) overruling counsel's objection to the prosecutor's comment in opening statement that the defendant was "drunk, way too drunk to drive"; 4) finding that the involved forensic scientist for the Tennessee Bureau of Investigation was the custodian of the alcohol report, thereby allowing the admission of the report into evidence; 5) concluding that "adult driving while impaired" was not a lesser included offense of driving under the influence; 6) refusing to dismiss count two of the indictment as a nullity; and 7) sentencing the defendant to more than the seven-consecutive-day minimum sentence applicable here. After reviewing each of these assertions, we find that none merit relief and, therefore, affirm the defendant's conviction and sentence. However, in reviewing the case, we have observed an error in the judgment form and, therefore, remand the matter for entry of a corrected judgment.

Kimberly Haas v. Albert Haas
M2000-02850-COA-R3-CV
Authoring Judge: Judge Don R. Ash
Trial Court Judge: Muriel Robinson
In this appeal from the Davidson County Circuit Court, the Appellant, Kimberly Lynn Haas, questions whether the trial court erred in granting her an absolute divorce and rendering a final disposition of the parties' marital property, whether the trial court erred in denying the appellant's motion for judgment on the pleadings, whether the trial court erred in refusing to bifurcate the issues of liability and damages to the appellee's two antique chairs, whether the trial court erred in its division of the appellant's 401K Deferred Compensation Plan, whether the trial court erred in permitting the appellee to assert the Fifth Amendment on the issues of dissipation of marital assets and adultery, whether the trial court erred in refusing to meaningfully consider the appellant's gift of $25,000 to the appellee in dividing the parties' property, whether the trial court erred in awarding the appellee the Toyota 4-Runner, whether the trial court erred in awarding the appellee the rosewood antique table, whether the trial court erred in awarding the appellee the $2,500 General Motors Cash Rebate, whether the trial court erred in not requiring the appellee to assume any of the outstanding marital debt on the Honda Accord, whether the trial court erred in its division of the General Motors credit card debt, and the method of payment of such marital debt. We affirm the judgment of the trial court in part, reverse in part and remand as consistent with this opinion. Costs of this appeal shall be split between the parties.

State of Tennessee v. Ricky Lynn Earls
M2001-00112-CCA-R3-CD
Authoring Judge: Judge John Everett Williams
Trial Court Judge: Judge Lee Russell
Defendant appeals the sentences he received from convictions for two counts of forgery and one count of theft. The trial court found defendant to be a career offender and sentenced defendant to serve two sentences of six years each, to be served consecutively for an effective sentence of twelve years. Defendant contends that the sentences are excessive and that the trial court should have ordered the sentences to be served concurrently. We disagree and affirm the trial court's judgment.