Maelene Fowler vs. Jerry Wilbanks
W2000-00452-COA-R3-CV
Authoring Judge: Judge W. Frank Crawford
Trial Court Judge: Dewey C. Whitenton
Plaintiffs sued to enjoin Defendant from denying their right to use a private dirt and gravel road on Defendant's property in order to access their property. The trial court held that Plaintiffs established an easement by implication and/or prescription in the private road, and enjoined Defendant from preventing Plaintiffs' future access to the road. Defendant appeals.

Russell vs. Russell
E1999-02742-COA-R3-CV
Authoring Judge: Judge Houston M. Goddard
Trial Court Judge: Howell N. Peoples
This appeal from the Hamilton County Chancery Court concerns whether the Trial Court erred in awarding primary residential responsibility of the minor child to the Appellee, Burgess Stephen Russell. The Appellant, Linda Sharion Russell, appeals the decision of the Chancery Court. We affirm the decision of the Trial Court and remand for further proceedings, if any, consistent with this opinion. We adjudge costs of the appeal against the Appellant, Linda Sharion Russell and her surety.

State vs. Lisa Ann Bargo
E1999-00156-CCA-R3-CD
Authoring Judge: Judge J. Curwood Witt, Jr.
Trial Court Judge: Phyllis H. Miller
Defendant Lisa Ann Bargo was convicted by a jury of one count of forgery, one count of attempt to commit theft over $10,000, and one count of criminal impersonation. The trial court subsequently set aside the jury verdicts on the attempt to commit theft and the criminal impersonation charges and sentenced the defendant on her forgery conviction to ten years as a Range II multiple offender to be served in the Department of Correction. In this appeal, the defendant challenges the sufficiency of the convicting evidence and the length of the sentence. We affirm the defendant's conviction and sentence.

Tennessee Protection and Advocacy, Inc., et al v. Janis
M1999-00884-WC-R3-CV
Authoring Judge: Loser, Sp. J.
Trial Court Judge: Carol Mccoy, Chancellor
This workers' compensation appeal has been referred to the Special Workers' Compensation Appeals Panel of the Supreme Court in accordance with Tenn. Code Ann. _ 5-6-225(e)(3) for hearing and reporting to the Supreme Court of findings of fact and conclusions of law. Tenn. Code Ann. _ 5-6-225(e) (1999) Appeal as of Right; Judgment of the Chancery Court Reversed in part and Affirmed in part; Remanded. LOSER, SP. J., in which BIRCH, J. , and KURTZ, SP. J., joined. Carson W. Beck, Nashville, Tennessee, for the appellant, Janis Greene. Richard E. Spicer, Nashville, Tennessee, for the appellees, Tennessee Protection and Advocacy, Inc., et al. MEMORANDUM OPINION By this appeal, the employee or claimant, Janis Greene, insists the evidence preponderates against the trial court's finding that her carpal tunnel syndrome did not arise out of and in the course of her employment. The employer, Tennessee Protection and Advocacy, Inc. contends the claim is barred by the employee's failure to give timely written notice. As discussed below, the panel has concluded the trial court's order dismissing the claim as not having arisen out of and in the course of employment should be reversed; and the panel has further concluded the trial court's findings with respect to notice and the extent of the claimant's permanent partial disability should be affirmed. The employer initiated this action on September 15, 1997, seeking a declaration that the employee's claimed injury did not arise out of and in the course of employment. The employee served her answer and a counterclaim. Construing the counterclaim fairly and consistently with the evidence and arguments, we have concluded the employee was and is seeking disability and medical benefits authorized by the Workers' Compensation Act. Tenn. Code Ann. _ 5-6- 11 et seq. After a trial of all the issues on February 25, 1999, the chancellor made her findings. Paraphrased, those findings were that (1) the claimant suffered "serious" carpal tunnel syndrome, cause unknown because of insufficient medical proof, (2) timely written notice of her claimed injury was given, (3) as a result of her carpal tunnel syndrome, the claimant retained a permanent partial vocational disability of twenty-five percent to the right hand and twelve and one-half percent to the left hand, (4) her claimed medical expenses were reasonable and necessary and (5) the claimant was a credible witness. Review of findings of fact by the trial court 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). This standard requires the panel to examine in depth a trial court's factual findings and conclusions. The reviewing court is not bound by a trial court's factual findings but instead conducts an independent examination to determine where the preponderance of the evidence lies.

Janice Forbes, et al. v. Cna Insurance Company, et al.
W1999-00710-WC-R3-CV
Authoring Judge: Henry D. Bell, Sp. J.
Trial Court Judge: W. Michael Maloan, Chancellor
This workers' compensation appeal has been referred to the Special Workers' Compensation Appeals Panel of the Supreme Court in accordance with Tenn. Code Ann. _ 5-6-225(e)(3) for hearing and reporting to the Supreme Court of findings of fact and conclusions of law. The defendants CNA Insurance Company and Day After Day Service, Inc. appealed the judgment of the Chancery Court of Obion County awarding plaintiff Janice Forbes, for deceased husband Jerry Forbes, death benefits for the death of Jerry Forbes from a work-related heart attack. For the reasons stated in this opinion We affirm the judgment of the trial court.

State vs. Nassel Brown
W1999-01558-CCA-R3-PC
Authoring Judge: Judge John Everett Williams
Trial Court Judge: James C. Beasley, Jr.
The petitioner, convicted of one count of rape of a child and sentenced to fifteen years, appeals from the trial court's order dismissing his petition for post-conviction relief. He argues that his trial counsel was ineffective for failing, inter alia, to investigate his case and for failing to interview and subpoena certain witnesses. We conclude that the petitioner has not demonstrated that the trial court erred. Therefore, we affirm the order dismissing his petition.

State vs. Benjamin Brown
W1999-00327-CCA-R3-CD
Authoring Judge: Judge David G. Hayes
Trial Court Judge: Carolyn Wade Blackett
Benjamin Brown appeals from his convictions of one count of felony murder committed in the perpetration of aggravated child abuse and one count of aggravated child abuse. An effective sentence of life imprisonment was imposed. On direct appeal, he contends (1) the evidence is insufficient to support his convictions; (2) the lesser offense of criminally negligent homicide should have been instructed; (3) testimony regarding prior bad acts was erroneously admitted; and (4) his convictions violate the constitutional protections against double jeopardy. Following review, the appellant's conviction for aggravated child abuse is vacated and dismissed as violative of the protections against double jeopardy. We affirm the appellant's conviction for felony murder finding the evidence sufficient to support his conviction. Because the appellant's motion for new trial as to felony murder was untimely filed, the remaining issues related to this conviction are waived.

State vs. Benjamin Brown
W1999-00327-CCA-R3-CD
Authoring Judge: Judge David G. Hayes
Trial Court Judge: Carolyn Wade Blackett
Benjamin Brown appeals from his convictions of one count of felony murder committed in the perpetration of aggravated child abuse and one count of aggravated child abuse. An effective sentence of life imprisonment was imposed. On direct appeal, he contends (1) the evidence is insufficient to support his convictions; (2) the lesser offense of criminally negligent homicide should have been instructed; (3) testimony regarding prior bad acts was erroneously admitted; and (4) his convictions violate the constitutional protections against double jeopardy. Following review, the appellant's conviction for aggravated child abuse is vacated and dismissed as violative of the protections against double jeopardy. We affirm the appellant's conviction for felony murder finding the evidence sufficient to support his conviction. Because the appellant's motion for new trial as to felony murder was untimely filed, the remaining issues related to this conviction are waived.

State vs. Lon Pierce
W1999-01433-CCA-R3-CD
Authoring Judge: Judge J. Curwood Witt, Jr.
Trial Court Judge: C. Creed Mcginley
The defendant, Lon Adelbert Pierce, appeals from his conviction of the first degree premeditated murder of Larry Gene Peppers, Sr. He raises numerous issues on appeal. Significant among his appellate issues are his challenge to the sufficiency of the evidence based upon his claim of diminished capacity, his claim that a psychologist is incompetent to give rebuttal testimony on the issue of diminished capacity, and his claim that double jeopardy barred his retrial on first degree murder after the jury at his first trial determined that he was not guilty of the offense, as evidenced by juror affidavits. Because we find no error requiring reversal, we affirm the defendant's conviction.

State vs. Brian Sullivan
W1999-00941-CCA-R3-CD
Authoring Judge: Judge Jerry Smith
Trial Court Judge: Chris B. Craft
The appellant, Brian Sullivan, entered a plea of nolo contendere in the Shelby County Criminal Court to one count of attempted aggravated sexual battery, a Class C felony. The trial court sentenced the appellant to a term of three (3) years, suspended. On appeal, the appellant argues that the trial court erred in denying his petition for judicial diversion. After a review of the record before this Court, we conclude that because the appellant was convicted of a sexual offense, he is statutorily ineligible for judicial diversion. Therefore, the judgment of the trial court is affirmed.

State of Tennessee v. Rockie Smith
W1999-00814-CCA-R3-CD
Trial Court Judge: John P. Colton, Jr.

State vs. James Carter
W1999-00799-CCA-R3-PC
Authoring Judge: Judge Robert W. Wedemeyer
Trial Court Judge: Bernie Weinman
A Shelby County jury convicted the Defendant of first degree murder, and the trial court sentenced him to life imprisonment. The Court of Criminal Appeals affirmed the conviction, and the Tennessee Supreme Court denied permission to appeal. The Defendant filed a petition for post-conviction relief, which the trial court denied after an evidentiary hearing. The Defendant appeals the denial of post-conviction relief and raises the following two issues: (1) whether the jury instruction on circumstantial evidence was proper; and (2) whether he received effective assistance of counsel at his trial. Finding no error, we affirm.

State vs. Jarvis Loverson
W1999-01750-CCA-R3-CD
Authoring Judge: Judge Jerry Smith
Trial Court Judge: Joseph B. Dailey
A Shelby County jury convicted the appellant, Jarvis Loverson, of one (1) count of theft of property over $1,000, a Class D felony, and one (1) count of attempted theft of property over $10,000, a Class D felony. The trial court sentenced the appellant as a Range II offender to consecutive terms of twelve (12) years for each offense. On appeal, the appellant contends that the evidence is insufficient to sustain his convictions for theft of property and attempted theft of property. After thoroughly reviewing the record before this Court, we conclude that the state failed to present any evidence regarding the value of the subject property. As a result, the appellant's conviction for theft of property over $1,000 is modified to theft of property valued at $500 or less, and his conviction for attempted theft of property over $10,000 is modified to attempted theft of property with a value of $500 or less.

Jackie Reynolds vs. Tammy Battles
W2000-00340-COA-R3-CV
Authoring Judge: Presiding Judge Alan E. Highers
Trial Court Judge: C. Creed Mcginley
This case involves three alleged criminal conspiracies committed by the Appellees against the Appellants. The Appellants filed a complaint against the Appellees in the United States District Court for the Western District of Tennessee. The district court dismissed the Appellants' complaint for lack of jurisdiction. The Appellants then filed a complaint against the Appellees in the Circuit Court of Hardin County. The Appellees brought a motion to dismiss. The trial court granted the Appellees' motion to dismiss, finding that the Appellants' complaint was barred by the statute of limitations and failed to state a claim for which relief can be granted. The Appellants appeal the dismissal of the Appellants' complaint. For the reasons stated herein, we reverse the trial court's decision.

Jerry Maness vs. Charles Woods
W2000-01049-COA-R3-CV
Authoring Judge: Judge David R. Farmer
Trial Court Judge: Roger A. Page
This is an appeal by Plaintiffs from a grant of summary judgment in favor of Defendants. Plaintiffs sued to recover property which they claim was wrongfully seized by employees of the Defendant. Defendants filed a request for admissions which included an admission that the property seized did not belong to Plaintiffs. Plaintiffs failed to timely respond and thus the admission was conclusively established. We affirm.

Rick Roelke vs. William Hickerson
W2000-00455-COA-R3-CV
Authoring Judge: Judge Holly M. Kirby
Trial Court Judge: Karen R. Williams
This is a medical malpractice case. The trial court dismissed the plaintiff's complaint because it was not filed within the applicable statute of limitations. We affirm.

State vs. Michael Spadafina
W1999-00268-CCA-R3-PC
Authoring Judge: Judge J. Curwood Witt, Jr.
Trial Court Judge: Julian P. Guinn
The Benton County Circuit Court dismissed Michael Joseph Spadafina's petition for post-conviction relief in which Spadafina raised a number of issues of trial error and ineffective assistance of trial counsel in his conviction of first degree murder. On appeal, the petitioner limited his issues to the ineffective assistance of counsel in not seeking an individual, sequestered voir dire of the jury and in not challenging the use of damaging character evidence. Because we conclude that the petitioner failed to carry his post-conviction burden to prove his claims by clear and convincing evidence, we affirm the dismissal of the post-conviction petition.

State of Tennessee v. Carlos Eddings
W2003-02255-CCA-R3-CD
Trial Court Judge: W. Otis Higgs, Jr.

2002-00734-COA-R3-CV
2002-00734-COA-R3-CV
Trial Court Judge: John F. Weaver

State vs. Jerry Michael Green
E1999-01815-CCA-R9-RL
Authoring Judge: Judge Norma McGee Ogle
Trial Court Judge: Carroll L. Ross
The appellant, Jerry Michael Green, proceeded to trial in the Monroe County Criminal Court for possession of more than .5 grams of cocaine with intent to deliver. Due to the State's improper cross-examination of defense witnesses, the trial court granted the appellant a mistrial. The appellant made a motion in limine to preclude the State, on double jeopardy grounds, from retrying the appellant on possession of cocaine with intent to deliver. The trial court denied the appellant's motion, but granted the appellant permission to appeal its decision. This court granted an interlocutory appeal. In this interlocutory appeal, the appellant claims that double jeopardy bars a retrial because the prosecutor goaded the appellant into requesting a mistrial. Upon review of the record and the parties' briefs, we affirm the judgment of the trial court.

State vs. Culbreath, et al
W1999-01553-SC-R11-CD
Authoring Judge: Justice E. Riley Anderson
Trial Court Judge: L. Terry Lafferty

State vs. Clint T. Melton
E1999-02090-CCA-R3-CD
Authoring Judge: Judge David G. Hayes
Trial Court Judge: Ray L. Jenkins

State vs. Nicholas Williams
M1999-00780-CCA-R3-CD
Authoring Judge: Judge Robert W. Wedemeyer
Trial Court Judge: Jim T. Hamilton
In 1998, the Giles County Grand Jury indicted the Defendant for one count of statutory rape and ten counts of sexual battery. In 1999, a Giles County jury tried the Defendant and found him guilty of one count of statutory rape and five counts of sexual battery. Following a hearing, the trial court sentenced the Defendant to two years incarceration for each conviction and ordered that five of the six sentences be served consecutively, resulting in an effective sentence of ten years. The Defendant now appeals as of right, arguing (1) that the evidence presented at trial was insufficient to support his convictions for sexual battery; (2) that the trial court erred by consolidating all counts for trial; and (3) that he was improperly sentenced. We conclude that the evidence is insufficient as to one count of sexual battery and thus reverse one of the Defendant's convictions for sexual battery. In addition, we conclude that the trial court erred by consolidating all counts for trial, but conclude that this error was harmless. Finally, following our reversal of the sexual battery conviction in case 8652, count one, with a two-year sentence, and a de novo review of the remaining sentences imposed by the trial court, we conclude that an effective sentence of eight years in the Tennessee Department of Corrections is appropriate.

State vs. John Charles Johnson
M2000-00529-CCA-R3-CD
Authoring Judge: Judge Thomas T. Woodall
Trial Court Judge: J. Randall Wyatt, Jr.
Defendant John Charles Johnson was convicted by a Davidson County jury of second degree murder, facilitation of aggravated kidnapping, and especially aggravated robbery. The trial court sentenced Defendant to twenty-five years for second degree murder, five years for facilitation of aggravated kidnapping, and twenty years for especially aggravated robbery. The trial court further ordered that Defendant's sentences for second degree murder and facilitation of aggravated kidnapping be served consecutive to each other and concurrent with Defendant's sentence for especially aggravated robbery, resulting in an effective sentence of thirty years. Defendant raises the following issues in this appeal: (1) whether the evidence was sufficient to support his three convictions; (2) whether the trial court erred in not granting Defendant's motion for judgment of acquittal on the ground that the testimony of a co-defendant was uncorroborated; (3) whether the trial court erred in not allowing Defendant to play a tape containing exculpatory statements; (4) whether the trial court erred by failing to charge the lesser-included offenses of voluntary manslaughter and facilitation to commit voluntary manslaughter; and (5) whether the length of the sentences imposed by the trial court were proper. Following a review of the record, we affirm the judgment of the trial court concerning Defendant's convictions and the lengths of Defendant's sentences. We reverse the trial court's order of consecutive sentencing and remand for a new hearing solely on the issue of concurrent or consecutive sentencing.

State vs. Amelia Kay Stem
M2000-00600-CCA-R3-CD
Authoring Judge: Judge Norma McGee Ogle
Trial Court Judge: Stella L. Hargrove
The appellant, Amelia Kay Stem, entered a plea of nolo contendere in the Lawrence County Circuit Court to one count of second degree murder. The trial court sentenced the appellant to twenty-five years incarceration in the Tennessee Department of Correction. The appellant raises the following issue(s) for our review: whether the trial court erred in sentencing the appellant by incorrectly applying enhancement factors, by failing to apply mitigating factors, and by neglecting to make specific findings of fact on the record. Upon review of the record and the parties' briefs, we affirm the judgment of the trial court.