Opinions

State vs. Swindle
M1998-00362-SC-R11-CD
Authoring Judge: Justice William M. Barker
Trial Court Judge: Seth W. Norman
This is an appeal from the Criminal Court for Davidson County, which convicted the defendant of two counts of facilitation of child rape and two counts of aggravated sexual battery. The defendant appealed, arguing that the trial court erred in failing to instruct the jury on Class B misdemeanor assault as a lesser-included offense of aggravated sexual battery. After the Court of Criminal Appeals affirmed the convictions, the defendant sought, and this Court granted, permission to appeal on the following issue: whether the trial court erred in failing to instruct the jury on Class B misdemeanor assault as a lesser-included offense of aggravated sexual battery. We hold that Class B misdemeanor assault is a lesser-included offense of aggravated sexual battery and that it was error for the trial court not to instruct the jury accordingly. Nevertheless, having determined that such error was harmless, the defendant's convictions for aggravated sexual battery are affirmed.

State vs. Jefferson
M1997-00115-SC-R11-PC
Authoring Judge: Justice Adolpho A. Birch, Jr.
Trial Court Judge: Walter C. Kurtz
This case is before us upon a jury's resentencing of the defendant, James Thomas Jefferson, on his conviction for premeditated first degree murder. In the original appeal, the Court of Criminal Appeals affirmed the conviction, vacated the sentence, and remanded the matter to the trial court for resentencing. On remand, the defendant requested a new jury trial on the merits in addition to the already-ordered resentencing. The trial court denied the request for a new trial. After a new hearing, the jury fixed a sentence of life imprisonment. The defendant appealed of right, challenging the trial court's overruling of his motion for a new trial on the merits. Relying on the "law of the case" doctrine, the Court of Criminal Appeals affirmed the trial court's judgment. We granted the defendant's application for permission to appeal and now hold that the Court of Criminal Appeals properly determined that the law of the case doctrine barred the trial court from granting Jefferson's motion for a new trial. The Court of Appeals is, therefore, affirmed.

John B. Tigrett v. Union Planters Bank
W1999-01771-COA-R3-CV
Authoring Judge: Judge W. Frank Crawford
Trial Court Judge: Robert L. Childers

Gretchen Bish vs. Sofamor
W1998-00373-COA-R9-CV
Authoring Judge: Judge W. Frank Crawford
Trial Court Judge: John R. Mccarroll, Jr.
These are consolidated interlocutory appeals of products liability suits against the manufacturers of spinal fixation devices. The trial court dismissed plaintiffs' negligence per se claims based on the alleged violation of the Food, Drug and Cosmetics Act (FDCA) and the Medical Device Amendments (MDA). In one of the cases, the trial court also granted defendants' motion in limine to exclude all Federal Drug Administration (FDA) regulatory evidence information and documents concerning the fixation devices. Plaintiffs appeal the rulings of the trial court.

State vs. Willie Smith
W2001-02973-CCA-R3-CD
Authoring Judge: Presiding Judge Joseph M. Tipton
Trial Court Judge: Joseph H. Walker, III
The defendant, Willie Nathaniel Smith, appeals as of right his conviction by a jury in the Tipton County Circuit Court of delivery of .5 grams or more of cocaine, a Class B felony, and his resulting fifteen-year sentence. He also appeals the concurrent fifteen-year sentences received following his guilty pleas to two additional counts of delivery of .5 grams or more of cocaine. He contends (1) the evidence is insufficient to support his conviction in case number 4149; (2) the trial court erroneously allowed a police investigator to testify about what he heard on a recording device; and (3) his sentences in both cases are excessive. We affirm the judgments of conviction.

State vs. Jeremy Jones
E1999-02207-CCA-R3-CD
Authoring Judge: Judge John Everett Williams
Trial Court Judge: James Edward Beckner
The defendant appeals his conviction and sentence for theft of property, asserting that insufficient evidence supported the verdict and that the trial court erroneously sentenced him to three years of incarceration. We affirm the conviction and modify the sentence to two years of incarceration.

Sarah Anita James vs. Susan Kay Swindell
E1999-02407-COA-R3-CV
Authoring Judge: Judge Houston M. Goddard
Trial Court Judge: L. Marie Williams
This appeal arises out of an automobile accident. The Defendant lost control of her vehicle, crossed three lanes of traffic, and hit Plaintiff's vehicle. Plaintiff suffered injuries and sued Defendant for damages. A jury trial ensued. The jury found Defendant to be 100% at fault and awarded $15,000 in damages to Plaintiff. The Plaintiff filed a motion for a new trial alleging juror misconduct and presented a juror's affidavit in support of her position. The Defendant untimely presented counter affidavits by jurors. The trial court judge granted a new trial based on juror misconduct. At the second trial the jury found the Defendant 100% at fault and awarded Plaintiff $27,608.60 in damages. On appeal, the Defendant claims that the trial court erred in failing to grant Defendant's motion for a directed verdict and in granting a new trial. We affirm the trial court's denial of a directed verdict for the Defendant and reverse the trial court's granting of a new trial based on juror misconduct. We remand the case to the trial court for the reinstatement of the jury verdict at the first trial.

State vs. Eric William Sanders
E1999-00345-CCA-R3-CD
Authoring Judge: Judge Robert W. Wedemeyer
Trial Court Judge: R. Jerry Beck
The Defendant pleaded guilty in Sullivan County Criminal Court to violation of a habitual traffic offender order, a Class E felony, and driving under the influence, second offense, a Class A misdemeanor. The Defendant was sentenced to serve one year in the Tennessee Department of Correction as a Range I standard offender for violation of the HTO order and eleven months and twenty-nine days, suspended except for forty-five days, for the DUI. The sentences were to run consecutively. After serving thirty percent of his one-year sentence for violation of the HTO order, the Defendant was released by determinate release to the local jail to serve the remainder of his mandatory forty-five day jail term for the DUI conviction, and he was then released on probation pursuant to determinate release. Within one year of the convictions, two warrants were filed alleging that the Defendant violated the terms of his determinate release for the HTO conviction, but neither warrant made reference to the DUI conviction. Following a hearing, at which the Defendant stipulated that he had absconded as alleged in the second warrant, the trial court revoked the Defendant's probation for the HTO conviction and ordered the Defendant to serve his sentence. The trial court continued disposition of the first warrant to allow the State to file a written motion to amend the first warrant to include the DUI conviction. The trial court then issued a third warrant to amend the first warrant to include the DUI conviction. Following a hearing on the first warrant, as amended, the trial court revoked the Defendant's probation for the DUI conviction and ordered him to serve that sentence as well. The Defendant now appeals, arguing (1) that the trial court did not have jurisdiction to revoke his probation for the DUI conviction, and (2) that the trial court abused its discretion in revoking his probation for the DUI conviction. Finding no error, we affirm the judgment of the trial court.

Danny S. Cosby vs State
M1999-01861-CCA-R3-CD
Authoring Judge: Judge Robert W. Wedemeyer
Trial Court Judge: Steve R. Dozier
The Appellant, Danny S. Cosby, pleaded guilty to two counts of attempted first degree murder and to two counts of aggravated assault. Pursuant to a plea agreement, the Davidson County Criminal Court sentenced the Appellant to an effective sentence of thirty years in the Tennessee Department of Correction. The Appellant subsequently filed for post-conviction relief, claiming that his plea was constitutionally defective because he was inadequately represented. The trial court denied relief. After review, we affirm the judgment of the trial court.

Christopher Woods vs. Ellis Woods
W1999-00733-COA-R3-CV
Authoring Judge: Judge David R. Farmer
Trial Court Judge: D'Army Bailey
This appeal arises from a dispute between Plaintiff Christopher Lamar Woods and Defendant Ellie Joan Woods regarding Mr. Woods' financial obligations under the parties' final decree of divorce. The trial court approved the ruling of the arbitrator, which was that Mr. Woods is responsible for the expense of Ms. Woods' "tummy tuck" and breast reduction surgery but is not responsible for the expense of Ms. Woods' Obagi cream treatments, collagen injections, lip implants, and other topical procedures. For the reasons set forth below, we affirm the ruling of the trial court.

Jerrell Livingston vs. James Dukes
W2000-00840-CCA-R3-CD
Trial Court Judge: Joseph H. Walker, III
This appeal results from the trial court's denial of the petitioner's petition for writ of habeas corpus based on the fact that the challenged judgment was not invalid on its face, nor had the petitioner's sentence expired. The court also considered this request as a petition for post-conviction relief but dismissed the petition for lack of jurisdiction. Based upon our review of the record, we affirm the trial court's dismissal of the petitioner's request for habeas corpus or post-conviction relief.

W1999-1453-CCA-R3-PC
W1999-1453-CCA-R3-PC
Trial Court Judge: John P. Colton, Jr.

State of Tennessee v. James Wesley Osborne
E1999-01071-CCA-R3-CD
Authoring Judge: Judge Robert W. Wedemeyer
Trial Court Judge: O. Duane Slone

State vs. John D. Brown
E1999-02217-CCA-R3-CD
Authoring Judge: Judge David H. Welles
Trial Court Judge: R. Steven Bebb

State vs. John D. Brown
E1999-02217-CCA-R3-CD
Authoring Judge: Judge David H. Welles
Trial Court Judge: R. Steven Bebb

State vs. William Livingstone, Jr.
E1999-01362-CCA-R3-CD
Authoring Judge: Judge Robert W. Wedemeyer
Trial Court Judge: James E. Beckner
A Hamblen County jury convicted the Defendant of three counts of obtaining prescription drugs by fraud, and the trial court sentenced him as a Range II persistent offender to six years incarceration for each count, with the sentences to be served concurrently, but consecutive to a previous conviction for which he received a twenty-one-year sentence. On appeal, the Defendant argues: (1) that he was improperly arraigned; (2) that the evidence is insufficient to support his convictions; (3) that a mistrial should have been ordered by the trial court when a witness speculated that the Defendant might have been Sheriff of Grainger County at one time; (4) that the trial court erred by failing to grant the Defendant's motion for a change of venue; (5) that the trial court should have recused itself; and (6) that the Defendant was denied a speedy trial. Finding no merit to these allegations, we affirm the judgment of the trial court.

State vs. Charles Sherman Thaxton
E1999-02091-CCA-R3-CD
Authoring Judge: Presiding Judge Joseph M. Tipton
Trial Court Judge: Ray L. Jenkins
The defendant appeals his convictions for two counts of aggravated sexual battery. He contends that the trial court erred (1) by allowing rebuttal testimony of a prior consistent statement and (2) by failing to give a limiting instruction. We affirm the judgment of the trial court.

State vs. Billy Kenneth Hall
E1999-02146-CCA-R3-CD
Authoring Judge: Presiding Judge Joseph M. Tipton
Trial Court Judge: Ray L. Jenkins
The defendant appeals his convictions for aggravated kidnapping and aggravated rape, contending that the evidence is insufficient to support his convictions, that the trial court should have granted a continuance to allow him to substitute counsel, and that his attorney was constitutionally ineffective. We affirm the trial court.

Jimmy Greene vs. State
E2000-00426-CCA-R3-PC
Authoring Judge: Judge Robert W. Wedemeyer
Trial Court Judge: D. Kelly Thomas, Jr.
A Blount County jury convicted the Petitioner of the aggravated rape of a person less than thirteen years of age, and the trial court sentenced him to twenty-two years incarceration. His conviction was affirmed on direct appeal. The Petitioner petitioned for post-conviction relief, and the trial court denied his request. He now appeals the trial court's denial of post-conviction relief, arguing that he received ineffective assistance of counsel at trial and on appeal. We conclude that the Petitioner was not denied the effective assistance of counsel and accordingly affirm the judgment of the court below.

State vs. Cornelius Michael Hyde
E2000-00042-CCA-R3-CD
Authoring Judge: Judge David H. Welles
Trial Court Judge: D. Kelly Thomas, Jr.

State vs. Cornelius Michael Hyde
E2000-00042-CCA-R3-CD
Authoring Judge: Judge David H. Welles
Trial Court Judge: D. Kelly Thomas, Jr.

State vs. Paul Andrew Thompson
E2000-01224-CCA-R3-CD
Authoring Judge: Presiding Judge Joseph M. Tipton
Trial Court Judge: James E. Beckner
The defendant appeals his conviction for first degree murder and sentence of life imprisonment without parole, contending (1) that the evidence was insufficient to establish premeditation, (2) that the testimony of Kimberly Johnson, the victim's ex-stepdaughter, was improperly excluded, and (3) that the evidence was insufficient to establish the aggravating circumstance of mutilation of the body. We affirm the defendant's conviction and sentence.

25840-COA-R3-CV
25840-COA-R3-CV
Trial Court Judge: Samuel H. Payne

State ex rel Cihlar vs. Crawford
M1999-00517-COA-R3-CV
Authoring Judge: Judge William C. Koch, Jr.
Trial Court Judge: Betty Adams Green
This appeal involves Thomas Matthew Cihlar's second attempt to obtain a judicial declaration that he is the father of a child whose mother was married to another man when the child was born. On this appeal, the estranged husband of the child's biological mother asserts that Mr. Cihlar's petition to establish parentage was foreclosed by Evans vs. Steelman. We have determined that the current parentage statutes are constitutional and that they authorize not only Mr. Cihlar, but also the State and Mr. Cihlar's child, to file an action to establish Mr. Cihlar's paternity. Accordingly, we affirm the juvenile court.

Church vs. Perales
M1997-00227-COA-R3-CV
Authoring Judge: Judge William C. Koch, Jr.
Trial Court Judge: Barbara N. Haynes
This appeal involves a dispute between an elderly patient and her physicians regarding their treatment of a severe post-operative infection caused by a bowel perforation that occurred during gynecological surgery. The patient filed suit in the Circuit Court for Davidson County against five physicians and a hospital alleging medical battery and malpractice. The trial court granted a summary judgment to the physicians and the hospital and dismissed the patient's case. On this appeal, the patient takes issue with the summary judgment granted to her gynecologist, a consulting general surgeon, and the gynecologist attending her following surgery in her gynecologist's absence. We have determined that the trial court properly dismissed the patient's medical battery and informed consent claims against her gynecologist. However, we have also determined that the three physicians have not demonstrated that they are entitled to a judgment as matter of law on the patient's medical malpractice claim based on the delay in diagnosing and treating the bowel perforation.