Jerry Mitchell v. State of Tennessee
M2003-00059-CCA-R3-PC
Authoring Judge: Judge J. Curwood Witt, Jr.
Trial Court Judge: Judge Steve R. Dozier

Jerry Mitchell appeals from the Davidson County Criminal Court's denial of his petition for post-conviction relief, in which he claimed that his guilty plea to the offense of attempted first degree murder was involuntary because his attorney erroneously advised him that he would serve only three years of his fifteen year sentence. The lower court found that the petitioner failed to prove his claim by clear and convincing evidence and denied relief. Because the petitioner has not carried his appellate burden of demonstrating error in the lower court's ruling, we affirm.

State of Tennessee v. David K. Wachtel, III
M2003-00505-CCA-R3-CD
Authoring Judge: Judge Norma McGee Ogle
Trial Court Judge: Judge Jane W. Wheatcraft

The appellant, David K. Wachtel, III, was convicted in the Sumner County Criminal Court of three counts of domestic assault. The trial court imposed a sentence of eleven months and twenty-nine days incarceration in the Sumner County Jail for each conviction, with one sentence consecutive to the other two, and placed the appellant on probation. On appeal, the appellant raises issues concerning the trial court's rulings, the sufficiency of the evidence supporting his convictions, and sentencing. Upon our review of the record and the parties' briefs, we affirm the judgments of the trial court.

City of Chattanooga v. Cinema , Inc., et al.
E2003-01038-COA-R3-CV
Authoring Judge: Judge David Michael Swiney
Trial Court Judge: Chancellor Howell N. Peoples

David Franklin ("Franklin") operates an adult bookstore in Chattanooga known as Cinema 1, Inc. ("Cinema 1"). Numerous undercover visits by Chattanooga Police Department officers discovered a significant amount of sexual activity happening at Cinema 1. This sexual activity violated the Chattanooga city ordinance regulating adult oriented establishments. Based on police reports detailing what the undercover officers observed at Cinema 1, the Mayor of Chattanooga revoked Franklin's adult oriented establishment license, a decision later affirmed by the Chattanooga City Council and then the Trial Court. The primary issues on appeal concern whether the Chattanooga ordinance regulating adult oriented establishments provides the necessary procedural safeguards required by the First Amendment to be considered facially constitutional under the federal Constitution. We conclude the licensing scheme provides the necessary First Amendment procedural safeguards. We further conclude that there was sufficient evidence presented to revoke Franklin's license. The judgment of the Trial Court, therefore, is affirmed.

Julie Jiles, et al. v. State of Tennessee
E2003-01005-COA-R3-CV
Authoring Judge: Judge David Michael Swiney
Trial Court Judge: Vance W. Cheek, Jr., Commissioner

Julie Jiles ("Plaintiff") and her husband, Bryan Jiles, sued the State of Tennessee ("State") for medical malpractice regarding medical care Plaintiff received at the Sevier County Health Department. The case was tried before the Claims Commission and an Order of Judgment was entered in March of 2003, holding, inter alia, that the standard of care was not breached and  dismissing Plaintiff's case. In dicta, the Judgment also suggested that another health care provider was the proximate cause of Plaintiff's damages. Plaintiff appeals. We affirm.

State of Tennessee v. Anthony Lamont Singleton
E2003-01747-CCA-R3-CD
Authoring Judge: Judge Joseph M. Tipton
Trial Court Judge: Judge Phyllis H. Miller

The defendant, Anthony Lamont Singleton, pled nolo contendere to aggravated assault, a Class C felony; possession of marijuana, fourth offense, a Class E felony; evading arrest and possession of drug paraphernalia, Class A misdemeanors; and resisting arrest, a Class B misdemeanor. The trial court sentenced him as a Range I, standard offender to an effective five-year sentence. After a sentencing hearing, the trial court ordered that he serve his sentences in confinement. The defendant appeals, claiming that the trial court should have sentenced him to community corrections. We affirm the judgments of the trial court.

State of Tennessee v. Terry S. Porter
W2002-03001-CCA-R3-CD
Authoring Judge: Judge Joe G. Riley
Trial Court Judge: Judge Chris B. Craft

A Shelby County jury convicted the defendant of arson, a Class C felony, and two counts of reckless homicide, Class D felonies. The trial court sentenced the defendant as a Range II multiple offender to ten years confinement for the arson conviction and seven years for each reckless homicide conviction with all sentences to run consecutively, for an effective sentence of twenty-four years. The defendant challenges his sentence on appeal, arguing the trial court’s consideration of enhancement factors was improper and his sentences should run concurrently. We affirm the judgments of the trial court.

State of Tennessee v. Joseph Rushing
M2003-00101-CCA-R3-CD
Authoring Judge: Judge Thomas T. Woodall
Trial Court Judge: Judge Robert E. Burch

Defendant, Joseph Rushing, was indicted for one count of rape of a child and one count of aggravated sexual battery. Following a jury trial, the jury found Defendant guilty of count one, rape of a child. The State entered a nolle prosequi as to count two, aggravated sexual battery. Following a sentencing hearing, the trial court sentenced Defendant to twenty-three years imprisonment. On appeal, Defendant argues that (1) the trial court erred in allowing Defendant's statements to the police to be introduced at trial; (2) the sentence imposed on Defendant was excessive; (3) the evidence was insufficient to support Defendant's conviction for rape of a child; and (4) Defendant's conviction and sentence violated principles of fundamental fairness. After a careful review of the record in this matter, we affirm the judgment of the trial court.

State of Tennessee v. Clifton Brown
M2003-00853-CCA-R3-CD
Authoring Judge: Judge Thomas T. Woodall
Trial Court Judge: Judge Robert L. Jones

Defendant, Clifton Brown, was indicted on one count of first degree felony murder of John Maupin, one count of premeditated first degree murder of John Maupin, one count of aggravated burglary of Ricky Howard's home, and one count of especially aggravated kidnapping of John Maupin. Prior to the case going to the jury, the State asked for and received a nolle prosequi as to the charge of premeditated first degree murder. Following a jury trial, Defendant was found guilty of especially aggravated kidnapping and aggravated burglary. The jury found Defendant not guilty of first degree felony murder, and found Defendant guilty of the lesser included offense of reckless homicide. Defendant waived a sentencing hearing and agreed to be sentenced as a Range I, standard offender, to twenty years for the especially aggravated kidnapping conviction, three years for the aggravated burglary conviction and two years for the reckless homicide conviction, with all sentences to run concurrently. Defendant appealed the sufficiency of the convicting evidence for all three convictions. In his brief, however, Defendant limits his argument on appeal to the sufficiency of the evidence pertaining to his conviction for especially aggravated kidnapping, and Defendant does not present any argument to support his contention that the evidence was insufficient to sustain his convictions for reckless homicide and aggravated burglary. Defendant has thus waived a review of the issues pertaining to his aggravated burglary and reckless homicide convictions. Tenn. R. Crim. P. 10(b). After a thorough review of the record, we affirm all three judgments of the trial court.

Kenneth W. Mitchell, et al., v. Homer E. Chance, et al.
M2002-01239-COA-R3-CV
Authoring Judge: Judge William C. Koch, Jr.
Trial Court Judge: Judge Robert E. Burch

This appeal involves a dispute between neighbors regarding the use of a county road in rural Humphreys County. After one of the landowners began to use the road to cross the neighboring landowners' property, the neighboring landowners erected barricades in the road and later filed a trespass action in the Chancery Court for Humphreys County. The landowners who desired to use the road counterclaimed to establish their right of way along the road. Following a bench trial, the trial court sided with the landowners desiring to use the road. On this appeal, the landowners who desire to prevent the use of the road take issue with the trial court's refusal to consider parol evidence regarding the meaning of the references to the road in the deeds. We affirm the trial court's decision that the references to the road in the deeds are not ambiguous, as well as its decision to admit extrinsic evidence to determine the location of the road. We have also determined that the evidence fully supports the trial court's decision regarding the location and dimensions of the road.

Timothy Johns v. State of Tennessee - Concurring
W2003-00677-CCA-R3-PC
Authoring Judge: Judge John Everett Williams
Trial Court Judge: Judge W. Fred Axley

I agree this case must be remanded to address both deficiency and prejudice relating to ineffective assistance of counsel. I write separately to elaborate on my concerns, especially relating to deficiency.

Timothy Johns v. State of Tennessee
W2003-00677-CCA-R3-PC
Authoring Judge: Judge John Everett Williams
Trial Court Judge: Judge W. Fred Axley

The petitioner appeals from the denial of his post-conviction petition. The petitioner had pled guilty to rape of a child under age thirteen in exchange for a sentence of fifteen years at 100%. On appeal, the petitioner claims that he received ineffective assistance of counsel. The petitioner also contends that the post-conviction court erred by denying his request to call two witnesses and by denying his request to make an offer of proof regarding the testimony of those witnesses. The post-conviction court also excluded certain medical records of the victim. After thorough review, we reverse the post-conviction court’s judgment and remand the case to the post-conviction court for a new hearing. At the new hearing, the post-conviction court should admit the testimony of the petitioner’s two witnesses and the victim’s medical records. Should the court exclude certain portions of the testimony, offers of proof shall be allowed in accordance with Tennessee Rule of Evidence 103.

State of Tennessee v. Amy Denise Sutton
W2003-01183-CCA-R3-CD
Authoring Judge: Judge Joe G. Riley
Trial Court Judge: Judge Julian P. Guinn

The defendant was convicted of theft of property valued over $1,000. The defendant was sentenced as a Range I standard offender to three years in the Tennessee Department of Correction with one year of incarceration and the remainder to be served on community corrections. On appeal, the defendant challenges the sufficiency of the evidence to support her conviction and raises issues regarding the length and manner of service of her sentence. We remand to delete the reference to the Department of Correction but otherwise affirm the judgment of the trial court.

James O. Ward v. Susan Ampferer Ward
W2003-01630-COA-R3-CV
Authoring Judge: Presiding Judge W. Frank Crawford
Trial Court Judge: Chancellor Walter L. Evans

Wife appeals trial court’s ruling on remand that former husband did not dissipate substantial marital assets through extramarital relationship, specifically asserting that the trial court failed to properly consider or apply the two-prong test set forth by the appellate court for determining whether dissipation has occurred. We affirm.
 

State of Tennessee v. William F. Cartwright
M2003-00483-CCA-R3-CD
Authoring Judge: Judge Joseph M. Tipton
Trial Court Judge: Judge Lillie Ann Sells

The defendant, William F. Cartwright, appeals as of right from his convictions by a jury in the Putnam County Criminal Court for possession with intent to deliver one-half gram or more of cocaine, a Class B felony, and simple possession of cocaine, a Class A misdemeanor. The trial court sentenced him as a standard offender to concurrent sentences of nine years for possession of one-half gram or more of cocaine with intent to deliver and eleven months, twenty-nine days for simple possession of cocaine. However, the trial court ordered these convictions merged. The petitioner contends (1) that the evidence is insufficient to support his conviction for possession with intent to deliver one-half gram or more of cocaine, (2) that the trial court erred in not requiring the state to elect which offense it was prosecuting, and (3) that his convictions for possession with intent to deliver one-half gram or more of cocaine and for simple possession of cocaine violate double jeopardy. We hold that the evidence is sufficient and that the trial court did not err by not requiring the state to elect between offenses with regard to his cocaine convictions. We also hold that although the trial court ordered the cocaine convictions to be merged, it should have entered only one judgment of conviction and noted the merger of the counts in that judgment. We vacate the judgments and remand the case for entry of a single judgment of conviction.

AT&T Corp. v. Ruth Johnson, et al.
M2003-00148-COA-R3-CV
Authoring Judge: Judge William B. Cain
Trial Court Judge: Chancellor Irvin H. Kilcrease, Jr.

This appeal concerns a challenge to the Commissioner's franchise and excise tax assessment. On cross-motions for summary judgment the chancellor found for the Commissioner. We affirm.

Steven D. Elliott v. Ginger W. Elliott (Ecton)
M2003-00492-COA-R3-CV
Authoring Judge: Judge William C. Koch, Jr.
Trial Court Judge: Judge Muriel Robinson

This appeal involves a post-divorce dispute regarding stock options that were part of the marital estate. The Circuit Court for Davidson County approved a marital dissolution agreement in which the husband agreed to transfer one-half of his employee stock options to the wife as part of the division of the martial estate. After the husband's employer and the employer's brokerage firm declined to transfer the stock options to the wife, she orally requested the husband to exercise the options on her behalf. The value of the employer's stock fell after the husband did not exercise the options. The wife sought to hold the husband in contempt or to modify the divorce decree. The trial court declined to hold the husband in contempt but found that he had impermissibly impeded the division of the martial estate. Accordingly, the court awarded the wife $59,759.25, the stock options' before-tax value had they been exercised on the day the divorce decree was entered. In addition, the court ordered the husband to immediately sell the options originally awarded to the wife and to pay her the proceeds as a credit against the judgment. The court also ordered the husband to pay the wife's attorney's fees, as well as prejudgment interest. The husband has appealed. We have determined that the trial court properly concluded that the husband unreasonably impeded the wife's acquisition of the value of the stock options. However, we have determined that the trial court erred by valuing the stock options as of the time of the divorce rather than the time the wife and the husband orally agreed to exercise the options and that the court erred by requiring the husband to exercise his options to pay the judgment. We have also determined that the court erred by awarding the wife prejudgment interest but properly awarded the wife her attorney's fees.

State of Tennessee v. Cherie Mae Phillips
E2003-01897-CCA-R3-CD
Authoring Judge: Judge Norma McGee Ogle
Trial Court Judge: Judge Richard R. Baumgartner

The appellant, Cherie Mae Phillips, pled guilty in the Knox County Criminal Court to aggravated assault. Pursuant to the plea agreement, she received a sentence of three years incarceration in the Tennessee Department of Correction. On appeal, the appellant argues that the trial court erred in denying alternative sentencing. Upon our review of the record and the parties' briefs, we affirm the judgment of the trial court.

State of Tennessee v. Elizabeth Allison
W2003-02007-CCA-R3-CD
Authoring Judge: Judge Thomas T. Woodall
Trial Court Judge: Judge L. Terry Lafferty

Petitioner, Elizabeth Allison, filed a petition for writ of habeas corpus in which she alleged that her judgment of conviction was void because the length of her sentence exceeded the range of  sentence for a Range I offender. Relying upon the supreme court’s decision in McConnell v. State, 12 S.W.3d 795 (Tenn. 2000), the trial court granted Petitioner habeas corpus relief. The State now appeals and argues that the trial court erred in granting Petitioner’s petition for writ of habeas corpus. After a through review of this matter, we reverse the judgment of the trial court, dismiss the petition, and remand this matter for reinstatement of the judgment of conviction and sentence previously imposed.

State of Tennessee v. Mario McNeal
W2003-01344-CCA-R3-CD
Authoring Judge: Judge Thomas T. Woodall
Trial Court Judge: Judge John P. Colton, Jr.

Defendant, Mario McNeal, was convicted by a jury of five counts of aggravated robbery and one count of aggravated assault. Defendant was sentenced to ten years confinement for each of the aggravated robbery convictions and three years confinement for his aggravated assault conviction. The sentences were ordered to be served concurrently, resulting in an effective sentence of ten years. In this appeal as of right, Defendant challenges the sufficiency of the convicting evidence. After a review of the entire record, we affirm the judgments of the trial court.

State of Tennessee v. George Arvil Vance and Vincent Vance
E2003-00110-CCA-R3-CD
Authoring Judge: Judge Robert W. Wedemeyer
Trial Court Judge: Judge Phyllis H. Miller

A Sullivan County jury convicted the Defendants, George A. Vance and Vincent Vance, of aggravated gambling promotion for operating twenty-nine Free Spin machines in Bristol. The trial court sentenced Defendant George A. Vance to two years of supervised probation followed by four years of unsupervised probation and ordered him to make restitution in the amount of $130,521.00. The court sentenced Defendant Vincent Vance to one year of supervised probation followed by one year of unsupervised probation. On appeal, the Defendants contend that: (1) the evidence is insufficient to support their convictions because there was no evidence that they knowingly engaged in a gambling enterprise and the Free Spin machines were not principally designed as gambling devices; (2) the trial court abused its discretion by prohibiting the Defendants from introducing the testimony of a patent attorney concerning the issuance of a patent on the Free Spin machine; and (3) the trial court abused its discretion by prohibiting the Defendants from introducing evidence concerning comparable products, games and promotions similar to the play on the Free Spin machines. Finding no reversible error, we affirm the trial court's judgments.

Jimmy Hicks v. Travelers Insurance Company
W2003-00768-SC-WCM-CV
Authoring Judge: Joe C. Loser, Jr., Sp. J.
Trial Court Judge: J. Steven Stafford, 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. In this appeal, the injured employee insists the trial court erred in disallowing his claim for failure to give timely written notice. As discussed below, the panel has concluded the evidence preponderates in favor of a finding that written notice was unnecessary because the employer had actual notice. The judgment of dismissal for lack of notice is therefore reversed, the trial court's conditional award of benefits is affirmed, and the cause is remanded for all purposes. Tenn. Code Ann. _ 5-6-225(e) (Supp 22.) Appeal as of Right; Judgment of the Chancery Court Reversed in Part; Affirmed in Part JOE C. LOSER, JR., SP. J., in which JANICE M. HOLDER, J., and JOE H. WALKER, III, SP. J., joined. James R. Krenis, Hill & Boren, Jackson, Tennessee, for the appellant, Jimmy Hicks Paul Todd Nicks, Walker Law Office, Memphis, Tennessee, for the appellee, Travelers Insurance Company MEMORANDUM OPINION The employee or claimant, Jimmy Hicks, initiated this civil action against his employer's former insurance carrier, Reliance, to recover workers' compensation benefits for work related carpal tunnel syndrome. Travelers was substituted for Reliance by amendment. Travelers denied liability for failure to give timely written notice and affirmatively averred the claim was barred by the statute of limitations. After a trial on the merits, the trial court, noting that it had "struggled" with the issue, disallowed the claim upon a finding that "there was not proper notice given." The conclusion was based on a decision contained in an unpublished opinion. As to the statute of limitations issue, the trial court concluded that it was "not really an issue and is not dispositive of this case." The trial court also issued a conditional award of benefits. Mr. Hicks has appealed, seeking review only of the trial court's finding that he failed to give proper notice of his injury. 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, 178 (Tenn. 1999). The essential facts are undisputed. The claimant is approximately fifty-three years old with a high school education and experience as a factory worker. He worked for the employer, Dyersburg Fabrics, for over 3 years in jobs requiring repetitive use of the hands and arms. He first reported discomfort in his hands in 1995 and the employer provided him with splints to wear while working. He did not know at the time that the condition was work related or was a permanent condition, but he told the employer what he did know, that he was having pain at work. He continued working and, in 2, visited Dr. Michael Roland, who ordered a nerve conduction study. The test revealed carpal tunnel syndrome. Dr. Roland referred the claimant to Dr. Gary Kellett, whom the claimant told he thought the condition might be related to his work. Dr. Kellett recommended surgery. Notwithstanding that recommendation, the claimant continued working for Dyersburg Fabrics until the plant closed in August 21. Shortly after the plant closure, the claimant contacted Travelers, the employer's insurer, seeking workers' compensation benefits. Travelers denied the claim as being barred by the statute of limitations. Surgery was eventually performed by Dr. Lowell Stonecipher. The claimant testified that he did not tell the employer about his visit to Dr. Kellett on April 17, 2. He stated that he did have an idea, at that time, that his injury could be work related, but had no such idea in 1995, when he first reported his pain to the employer. He was able to work until December 1, 21, when surgery was performed. Travelers had actual notice of the claim before the surgery was done. Immediately upon the occurrence of an injury, or as soon thereafter as is reasonable and practicable, an injured employee must, unless the employer has actual knowledge of the accident, give written notice of the injury to his employer. Tenn. Code Ann. _ 5-6-21 (a). From the undisputed facts of this case, we are persuaded the employer had actual notice of the claimant's injury, or at least as much knowledge as he was able to articulate, as early as 1995, when he first reported to the employer that his arms were hurting at work and the employer provided him with -2-

State of Tennessee v. Chris E. Hixson
M2002-03141-CCA-R3-CD
Authoring Judge: Judge David H. Welles
Trial Court Judge: Judge Robert E. Burch

The Defendant, Chris E. Hixson, pled guilty to two counts of theft and three counts of sale of cocaine, all Class C felonies. He was sentenced to two concurrent four-year terms for the theft offenses, and to three concurrent four-year terms for the cocaine offenses, these latter terms to be served consecutively to the terms for the theft offenses, for an effective sentence of eight years. All of these sentences were ordered to be served on community corrections. The Defendant was subsequently convicted of aggravated burglary and sentenced to serve three years on community corrections, consecutive to the sentences imposed for the theft offenses. The effective sentence of eight years was thus unchanged. Subsequent to the burglary conviction, the Defendant violated the terms of his release and was ordered to serve two years day-for-day in confinement, after which he was to be released back into community corrections. It is from this order that the Defendant now appeals, arguing that the two years of continuous confinement constitutes an illegal sentence. The State concedes that the sentence is illegal. We agree. The trial court's judgment is reversed and this matter is remanded to the trial court.

State of Tennessee v. Paul Graham
M2003-00331-CCA-R3-CD
Authoring Judge: Judge John Everett Williams
Trial Court Judge: Judge Michael R. Jones

The defendant was convicted by a jury of second degree murder of his wife. The defendant appeals his conviction and sentence and alleges the following errors: (1) the evidence was insufficient to support the conviction; (2) the admission of hearsay testimony and failure to give a curative instruction; (3) the admission of expert opinion that the death was a result of homicidal violence when cause was undetermined; (4) cumulative errors required a new trial; and (5) improper sentencing. After review, we conclude that there is no reversible error and affirm the conviction and sentence.

Krishnalal J. Patel v. Dileep Patel
M2003-00375-COA-R3-CV
Authoring Judge: Presiding Judge William C. Koch, Jr.
Trial Court Judge: Judge Walter C. Kurtz

This appeal involves a dispute among the members of a general partnership. In 1997, a group of the partners sued one of the partners in the Chancery Court for Davidson County for negligence and breach of fiduciary duty. The trial court granted a judgment for the defendant partner in 2000. In 2001, the same group of partners filed a similar suit in the Circuit Court for Davidson County. The defendant partner moved to dismiss on the grounds of res judicata. The trial court converted the motion to dismiss into a motion for summary judgment and then granted judgment for the defendant partner on the ground that the 1997 chancery court judgment barred the second state court suit. The plaintiff partners have appealed. We affirm the trial court.

Carol Newell D/B/A Solowell v. Exit/In, Inc., et al.
M2003-00434-COA-R3-CV
Authoring Judge: Judge Patricia J. Cottrell
Trial Court Judge: Chancellor Ellen Lyle Hobbs

The trial court granted partial summary judgment to plaintiff in this suit to collect on a promissory note. Appellant does not appeal the grant of judgment, but appeals the trial court's certification of that judgment as a final order under Tenn. R. Civ. P. 54.02. We affirm the trial court.