Opinions

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. 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. 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 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.

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.

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.

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.

State of Tennessee v. Carlos Eddings
W2003-02255-CCA-R3-CD

Trial Court Judge: W. Otis Higgs, Jr.

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.

2002-00734-COA-R3-CV
2002-00734-COA-R3-CV

Trial Court Judge: John F. Weaver

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

Robert Burton vs. Kent Gearin
W1999-01022-COA-R3-CV
Authoring Judge: Presiding Judge Alan E. Highers
Trial Court Judge: William B. Acree
The Appellee was appointed by the Circuit Court of Weakley County to represent the Appellant in his petition for post conviction relief. The circuit court denied the Appellant's petition, and the Tennessee Court of Criminal Appeals affirmed. The Appellant filed a complaint for legal malpractice against the Appellee. The Appellant also filed a motion to hold the matter in abeyance until he was released from prison. The trial court failed to rule on the motion for abeyance. The trial court entered summary judgment in favor of the Appellee. The Appellant appeals the trial court's grant of summary judgment in favor of the Appellee and the trial court's failure to rule on the motion for abeyance. For the reasons stated herein, we reverse the judgment of the trial court and remand this case for further proceedings consistent with this opinion.

Shirley Marcum vs. Michael Trippett
W1999-00255-COA-R3-CV
Authoring Judge: Judge W. Frank Crawford
Trial Court Judge: Wyeth Chandler
This appeal involves the interpretation of a marital dissolution agreement pertaining to a division of marital property. The trial court interpreted the agreement to require Husband to begin paying $1,200.00 per month to Wife for her interest in the marital property, an insurance agency. Husband has appealed.

Edward Tuggle vs. AMISUB
W1999-02444-COA-R3-CV
Authoring Judge: Judge W. Frank Crawford
Trial Court Judge: Kay S. Robilio
Patient sued hospital for injuries sustained when she fell after hospital personnel failed to respond to her call for assistance to go to the bathroom. Patient went to the bathroom without incident and then decided to bathe her feet while she was out of bed. Patient filled a pan of water and sat in a chair bathing her feet when the telephone rang. When she got up to answer the telephone across the room, her wet feet slipped on the floor, and she fell, sustaining injuries. The trial court granted hospital summary judgment, and patient has appealed.

Oliver Valentine
W1999-01293-COA-R3-CV
Authoring Judge: Judge Holly M. Kirby
Trial Court Judge: George E. Blancett
This is a termination of parental rights case. A twenty-one month old boy was removed from his parents' home after the mother beat him with a belt, leaving bruises on his back, chest, head, and face. Three and a half years later, after the parents had failed to satisfy the conditions in the son's plan of care, the Department of Children's Services filed a petition to terminate their parental rights. The Juvenile Court for Shelby County terminated the mother's and father's parental rights. The mother and father appeal, arguing that the Tennessee Constitution prohibits a non-attorney, elected juvenile court judge from appointing a special judge, who is an attorney but not elected, to hear a termination of parental rights case. They also argue that there is not clear and convincing evidence to support the termination of their parental rights. We affirm, finding that the Tennessee Constitution does not prevent an elected, non-attorney juvenile court judge from appointing a juvenile court referee, who is an attorney but not elected, to hear cases involving the termination of parental rights, and that there is clear and convincing evidence to support the termination of parental rights in this case.

In Matter of Jo'Nise Perry
W2000-00209-COA-R3-CV
Authoring Judge: Judge Holly M. Kirby
Trial Court Judge: George E. Blancett
This is an appeal from an order terminating parental rights. The father was imprisoned during the hearing of this case. The father argues on appeal that the juvenile court should have allowed him to be physically present at the hearing and should have granted him discovery he requested, and also contends that terminating his parental rights was not in his daughter's best interest. We find that the trial court did not abuse its discretion in deciding not to transport the father to the hearing, and in limiting the father's discovery. We also find that the trial court did not err in finding that termination of the father's parental rights was in the child's best interest. On this basis, we affirm the order terminating the father's parental rights.

Judy Pennington vs. Frank Pennington
W2000-00568-COA-R3-CV
Authoring Judge: Presiding Judge Alan E. Highers
Trial Court Judge: Joe C. Morris
This appeal arises from a divorce proceeding. The Chancery Court of Madison County granted the Appellee a divorce on the grounds of inappropriate marital conduct and adultery. The trial court calculated child support based on the Appellant's average income prior to his first incarceration. In lieu of child support payments, the trial court awarded the Appellee an office building titled solely in her name. The trial court also awarded the Appellee $5,000.00 as alimony in solido to help defray her attorney's fees and expenses but declined to award periodic or rehabilitative alimony due to the trial court's division of marital property.

Peltz vs. Peltz
M1999-02299-COA-R3-CV
Authoring Judge: Judge Ben H. Cantrell
Trial Court Judge: Russell Heldman
The issue on appeal is whether a notary was negligent when she attached her certificate to a forged signature on a deed. The Chancery Court of Williamson County held that she was not. We affirm.

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. Richard M. Far, Jr.
M1999-01998-CCA-R3-CD
Authoring Judge: Judge Thomas T. Woodall
Trial Court Judge: James K. Clayton, Jr.
Defendant, Richard M. Far, Jr., was convicted by a Rutherford County jury of Class D forgery of a document valued at more than $1,000. Subsequently, the trial court sentenced Defendant as a Range III persistent offender to ten (10) years to be served consecutively to Defendant's sentence in an arson case (F-45893). Defendant raises two issues on appeal: 1) whether the trial court erred in excluding Defendant from his trial and sentencing hearing and 2) whether the trial court properly considered the sentencing guidelines in sentencing Defendant. After a review of the record, we reverse the judgment of the trial court and remand this matter for a new trial.

State vs. Andre L. Mayfield
M1999-02415-CCA-R3-CD
Authoring Judge: Judge Robert W. Wedemeyer
Trial Court Judge: Seth W. Norman
In 1999, the Defendant was tried by a Davidson County jury and found guilty of aggravated robbery, aggravated rape, rape, and two counts of aggravated kidnapping for crimes perpetrated on two victims. Following a sentencing hearing, the trial court sentenced the Defendant to an effective sentence of fifty years. In this appeal as of right, the Defendant argues that (1) the trial court erred by failing to sever the offenses against one victim from those against the second victim; (2) the trial court erred by failing to admonish the jury not to view, listen to, or read any news coverage of the case during trial; (3) the trial court erred by failing to grant his two motions for a mistrial; (4) the evidence presented at trial was insufficient to support his convictions; (5) the trial court erred by allowing the State to introduce evidence of the age of one victim; (6) the trial court erred by allowing into evidence altered documents and by instructing the jury that the documents were altered to remove inadmissible evidence; (7) the trial court erred by allowing into evidence inadmissible hearsay statements; (8) the trial court erred by refusing to instruct the jury on lesser-included offenses requested by the defense; and (9) the trial court sentenced him improperly. Having thoroughly reviewed the record in this case, we affirm the judgment of the trial court, as modified to indicate that the Defendant was sentenced as a Range II Multiple Rapist for the rape conviction.