Mary Lee Dotson v. William Ennis Dotson
M2002-02578-COA-R3-CV
Authoring Judge: Presiding Judge William C. Koch, Jr.
Trial Court Judge: Judge Jim T. Hamilton

This appeal involves the dissolution of a 28-year marriage by default. The wife filed for divorce in the Chancery Court for Maury County and, after the husband failed to file a timely answer, filed for a default judgment. The trial court granted the default judgment even though the husband had filed an answer and counterclaim on the day before the hearing and later denied the husband's Tenn. R. Civ. P. 55.02 motion to set aside the default. The husband has appealed. We have determined that the trial court properly granted the default judgment but erred by refusing to later set the default judgment aside.

State of Tennessee v. Derrick L. Dillard
M2002-03089-CCA-R3-CD
Authoring Judge: Judge Thomas T. Woodall
Trial Court Judge: Judge Robert E. Burch

Defendant, Derrick L. Dillard, argues in this appeal that the trial court erred by imposing an illegal sentence following a hearing in which the trial court found that Defendant had violated the terms and conditions of his Community Corrections sentence. The State agrees that the trial court erred. After a full review of the record, we reverse the judgment of the trial court and remand for entry of an order consistent with this opinion.

Alexander C. Wells, v. Tennessee Board of Regents, et al.
M2003-00591-COA-R3-CV
Authoring Judge: Presiding Judge William C. Koch, Jr.
Trial Court Judge: Chancellor Carol L. McCoy

This appeal is the continuation of a protracted dispute between Tennessee State University and a faculty member stemming from his termination for sexually harassing a student. After the courts vacated the dismissal, the university and the Tennessee Board of Regents established a process of transitional reinstatement. The professor objected and refused to report to work. Thereafter, the professor filed a petition in the Chancery Court for Davdison County to hold the university and the board in contempt. The trial court heard the matter without a jury and declined to hold either the university or the board in contempt. The professor has appealed. We affirm because orders declining to grant contempt petitions are not appealable.

Janet Lynn Ditzer v. Curtis J. Ditzer
E2003-00707-COA-R3-CV
Authoring Judge: Judge Herschel P. Franks
Trial Court Judge: Judge W. Neil Thomas, III

The Trial Court ordered the father to pay one-half of the daughter's college expenses pursuant to the parties' Marital Dissolution Agreement, and reimburse the mother for one-half of expenses already paid. On appeal, we affirm.

Jerry McGeehee, et al., v. Michael W. Davis
M2002-03062-COA-R3-CV
Authoring Judge: Judge Alan E. Highers
Trial Court Judge: Judge Robert E. Lee Davies

This case is an appeal from a wrongful death claim in which the Defendant was found only fifty percent at fault. The Plaintiffs appeal to this Court for review of two procedural issues. For the following reasons, we affirm the trial court.

In Re S.M.
M2003-00422-COA-R3-PT
Authoring Judge: Presiding Judge William C. Koch, Jr.
Trial Court Judge: Judge Betty Adams Green

This appeal involves the termination of the parental rights of a biological father whose daughter was surrendered to a licensed child-placing agency without his knowledge. Soon after notifying the biological father that it had custody of the child, the agency filed a petition in the Davidson County Juvenile Court seeking to terminate the father’s parental rights. Following a bench trial, the juvenile court concluded that the biological father had abandoned his daughter and that the child’s best interests required terminating her biological father’s parental rights. We have determined that the agency has failed to present clear and convincing evidence that the biological father has abandoned his daughter.
 

In Re S.M. - Concurring
M2003-00422-COA-R3-PT
Authoring Judge: Judge William B. Cain
Trial Court Judge: Judge Betty Adams Greene

I disagree with the standard of review employed by the court in this case for the reasons
discussed at more length in In Re Z.J.S., No. M2002-02235-COA-R3-JV, 2003 WL 21266854, at
*18-22 (Tenn.Ct.App. June 3, 2003) (No Tenn. R. App. P. 11 application filed; Estate of Acuff v.
O’Linger, 56 S.W.3d 527, 533-37 (Tenn.Ct.App. 2001). However, I would reach the same result
employing the standard of review recited in Acuff v. O’Linger, 56 S.W.3d 527 at 537. Therefore,
I concur with the court’s decision to reverse the order terminating R.G.L.’s parental rights.

State of Tennessee v. Gregory Skinner
W2003-00336-CCA-R3-CD
Authoring Judge: Judge Alan E. Glenn
Trial Court Judge: Judge Clayburn L. Peeples

The defendant, Gregory Skinner, was convicted of two counts of sale of a Schedule II controlled substance, a Class C felony, and one count of sale of a counterfeit controlled substance, a Class E felony, and sentenced as a Range II, multiple offender to ten years for each of the two counts of sale of a Schedule II controlled substance, to be served concurrently, and to three years for the sale of a counterfeit controlled substance, to be served consecutively, for a total sentence of thirteen years. This sentence was ordered to be served consecutively to a previous sentence. The defendant appeals, arguing that the evidence was insufficient to support his convictions and that the trial court erred in applying a nonstatutory factor in setting his sentence. Following our review, we affirm the judgments of the trial court but remand for entry of corrected judgments in Counts 2 and 3.

Harry David Johnson v. State of Tennessee
E2002-01949-CCA-R3-PC
Authoring Judge: Judge Norma McGee Ogle
Trial Court Judge: Judge R. Jerry Beck

The petitioner, Harry David Johnson, was convicted in the Sullivan County Criminal Court of the first degree murder of his wife, Katherine Trotter Johnson, and he received a sentence of life imprisonment. Subsequently, the petitioner filed for post-conviction relief, alleging that he did not receive effective assistance of counsel during his trial. The post-conviction court held an evidentiary hearing, ultimately determining that the petitioner had failed to prove by clear and convincing evidence that trial counsel was ineffective. The petitioner timely appealed this ruling. Upon review of the record and the parties' briefs, we reverse the judgment of the post-conviction court and remand for a new trial.

Debra A. Pressley v. State of Tennessee
E2003-01133-WC-R3-CV
Authoring Judge: Roger E. Thayer, Sp. J.
Trial Court Judge: Vance W. Cheek, Jr., Commissioner
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 Claims Commissioner dismissed the complaint finding that the employee's mental condition was of long duration and was the result of a gradual build-up of work stress. The judgment of the Claims Commission is reversed and the case is remanded. Tenn. Code Ann. _ 5-6-225(e) (1999) Appeal as of Right; Judgment of the Tennessee Claims Commission is Reversed and Remanded ROGER E. THAYER, SP. J., in which E. RILEY ANDERSON, J., and JOHN K. BYERS, SR. J., joined. J. Anthony Farmer and John P. Dreiser, of Knoxville, Tennessee, for Appellant, Debra A. Pressley. Paul G. Summers, Attorney General and Reporter, and George H. Coffin, Jr., Senior Counsel for Appellee, State of Tennessee. MEMORANDUM OPINION The employee, Debra A. Pressley, appeals from the trial court's action in dismissing her complaint and entering judgment in favor of the employer, State of Tennessee. The Claims commissioner held the employee's mental condition was of long duration and the result of a gradual build-up of work stress and therefore not compensable. Facts Ms. Pressley, a 1976 high school graduate with an Associate's degree in business and word processing, began working for the Tennessee Department of Safety in 1989 as a drivers license examiner. She worked in this position for about two years and then transferred to working as a weigh station operator where she remained for about one year. In 1992 she began regular duties as a State Trooper and was assigned to work in Knox County. She testified that prior to working as a State Trooper, she had never been seen or treated for any psychological problems. She said her regular duties as a patrol officer required her to investigate many accidents with fatalities but that never really bothered her. Ms. Pressley told the court of three specific events that occurred during the last two years of her work that she said caused her to become very depressed, have flashbacks and suffer awful nightmares to the extent she was hospitalized on several occasions and rendered unable to work. In late 1997 or early 1998, she was required to assist another officer in investigating a single vehicle accident on Interstate 4 which involved a motorcycle where the driver was decapitated when he came into contact with a guardrail. She had to search the wreck scene in order to locate the driver's head. The second event was an accident in 1999 on the John Sevier Highway involving a young woman who was killed when another vehicle impacted her car so severely there was difficulty in removing her body from the wreckage and where she described an enormous amount of blood in the wreckage. She had to notify the family and also prevent the family from seeing the body and blood. The last event and the one that she said seemed to cause her the most trouble was in 2 and was an accident where a vehicle actually rolled on top of the driver's head and the head was crushed and "elongated and buried in mud." She said the individual who died was known to her family. Ms. Pressley said these events caused her to become very depressed; that she quit doing everything; could not sleep or eat very much; caused her to have flashbacks and nightmares when she would dream about being at work and called to another tragic accident scene. She indicated that sometimes a certain smell would remind her of a grisly mixture of corpse, battery acid and transmission fluid all mixed together as the smell of death. In describing this, she told the court she could smell it while talking about it. She eventually had to stop working and was seen by a licensed clinical psychologist upon referral by the Department of Safety. She said she was so distraught that she attempted suicide four times during the period she was not working. The first time she was hospitalized was in April 2 after cutting herself with a knife. She has been in the hospital on several other occasions since then. She testified she is unable to work; cannot hardly stand to leave her house; has panic attacks; and she hyperventilates often. She stated she had worked as a State Trooper for almost ten years and had never had problems of this nature prior to the three events she described. She admitted she was having some problems in her marriage during this same period of time but attributed some of that as a result of her unusual and stressful condition. She was awarded disability retirement benefits with the State and is now receiving Social Security Disability benefits. Dr. Francis P. LeBuffe, a psychiatrist, testified by deposition. He was Ms. Pressley's treating doctor and he saw her for the first time in the hospital on April 4, 2. He testified she had all of the symptoms of severe depression; that she was not able to work and his diagnosis was (1) major -2-

Dexter Jones v. State of Tennessee
M2003-01229-CCA-R3-PC
Authoring Judge: Judge Joseph M. Tipton
Trial Court Judge: Judge John D. Wootten, Jr.

The petitioner, Dexter P. Jones, appeals from the Wilson County Criminal Court's denial of post-conviction relief from his four convictions for assault, a Class A misdemeanor, and resulting consecutive eleven-month, twenty-nine-day sentences. He contends that his guilty pleas were not knowingly, voluntarily, and intelligently made because the trial court did not advise him that he was waiving a double jeopardy claim. We affirm the trial court's denial of the petition.

State of Tennessee v. Glen Holt
E2003-01100-CCA-R3-CD
Authoring Judge: Judge Robert W. Wedemeyer
Trial Court Judge: Judge E. Eugene Eblen

A Morgan County jury found the Defendant, Glen Holt, guilty of first degree felony murder and aggravated robbery. The trial court sentenced the Defendant to nine years in prison for the aggravated robbery charge, to be served concurrently with a life sentence for the murder conviction. The Defendant appeals, contending: (1) that the evidence was insufficient to support his convictions; (2) that the trial court erred when it allowed a photograph, offered by the prosecution, to be admitted into evidence without a proper foundation; (3) that the jury did not follow the trial court’s instructions with regard to felony murder; and (4) that he did not knowingly, voluntarily and intelligently waive his constitutional right to testify in his own defense. Although we conclude that issues (1), (2) and (3) are without merit, the record is insufficient for us to determine whether the Defendant personally and knowingly waived his right to testify. Therefore, we remand the case to the trial court for a hearing to determine whether the Defendant’s right to testify was violated, and if so, whether the violation of the Defendant’s right to testify was harmless beyond a reasonable doubt.

State of Tennessee v. Glen Holt - Concurring and Dissenting
E2003-01100-CCA-R3-CD
Authoring Judge: Judge Joseph M. Tipton
Trial Court Judge: Judge E. Eugene Eblen

State of Tennessee v. Dwight Miller
W2001-03095-CCA-R3-CD
Authoring Judge: Judge Jerry L. Smith
Trial Court Judge: Judge L. Terry Lafferty

The appellant, Dwight Miller, was convicted of first degree murder and sentenced to life in prison in 1996. On December 29, 1998, this Court reversed the judgment of the trial court and remanded the case to the Haywood County Circuit Court for a new trial. See State v. Dwight Miller, No. 02C01-9708-CC-00300, 1998 WL 902592 (Tenn. Crim. App. at Jackson, Dec. 29, 1998). At the conclusion of the second trial, appellant was convicted again by a jury of first degree murder and sentenced to life in prison. The issues presented for our review include: (1) whether the trial court erred in permitting the prior recorded testimony of a witness to be read into the record; (2) whether the trial court erred in failing to grant a mistrial after a bomb threat occurred during the course of the trial; and (3) whether the evidence is sufficient to sustain the conviction for first degree murder. Appellate review is available for the sufficiency of the evidence despite the appellant's failure to file a timely motion for new trial under Tennessee Rule of Criminal Procedure 33(b). The review of the issues, however, is also dependent upon either a timely filed notice of appeal, or in the interest of justice, a waiver of the timely filing of a notice of appeal pursuant to Tennessee Rule of Appellate Procedure 4(a). Because the appellant filed an untimely motion for a new trial, his notice of appeal is likewise tardy. Additionally, the appellant has not sought a waiver of the timely filing of the notice of appeal. Under these circumstances we conclude that the appellant has waived review of these issues on appeal. Nevertheless, we have in the interest of justice, reviewed the primary issue of the sufficiency of the evidence. The evidence is more than sufficient to support the verdict of the jury. Accordingly, the judgment of the trial court is affirmed.

State of Tennessee v. Holly Fant
W2003-00211-CCA-R3-CD
Authoring Judge: Judge Jerry L. Smith
Trial Court Judge: Judge Clayburn L. Peeples

The appellant, Holly Fant,1 pled guilty to aggravated assault by use of a deadly weapon
resulting in bodily injury and agreed to have her sentence determined at a sentencing hearing. The trial court sentenced the appellant as a Range I, Standard Offender to a four-year sentence in the Tennessee Department of Correction. After an appeal, this Court reversed and remanded the case for a new sentencing hearing. See State v. Holly Fant, No. W2001-02634-CCA-R3-CD, 2002 WL 1284229 (Tenn. Crim. App. at Jackson, June 5, 2002). After a new sentencing hearing, the appellant was again sentenced by the trial court as a Range I, Standard Offender to a four-year sentence in the Tennessee Department of Correction. In this appeal, the appellant challenges her sentence by arguing that the trial court: (1) improperly applied certain enhancement factors to her sentence; (2) based its determination on evidence not in the record; and (3) improperly denied her request for a “special needs” Community Corrections sentence. After a complete review of the record, we affirm the judgment of the trial court.

State of Tennessee v. Holly Fant - Concurring
W2003-00211-CCA-R3-CD
Authoring Judge: Presiding Judge Gary R. Wade
Trial Court Judge: Judge Clayburn L. Peeples

I agree that the defendant’s sentence should be affirmed. In my view, however, it was error for the trial court to apply enhancement factor (6), that the defendant treated the victim with exceptional cruelty. See Tenn. Code Ann. § 40-35-114(6). Application of this factor requires a finding of cruelty over and above that inherently attendant to the crime for which the defendant is convicted. State v. Embry, 915 S.W.2d 451, 456 (Tenn. Crim. App. 1995). In other words, such evidence must “denote[ ] the infliction of pain or suffering for its own sake or from the gratification derived therefrom, and not merely pain or suffering inflicted as the means of accomplishing the crime charged.” State v. Kelly Haynes, No. W1999-01485-CCA-R3-CD (Tenn. Crim. App., at Jackson, Mar. 14, 2000). Enhancement factor (6) has typically been applied insituations where the victim was tortured or abused. See State v. Davis, 825 S.W.2d 109, 113 (Tenn. Crim. App. 1991). This court has upheld the application of this factor based on proof of extensive physical abuse or torture, see State v. Williams, 920 S.W.2d 247, 259 (Tenn. Crim. App. 1995), as well as proof of psychological abuse or torture, see State v. Thomas Lebron Mills and Carl Franklin Mills, No. 936 (Tenn. Crim. App., at Knoxville, Dec. 19, 1985) (holding that acts of mental cruelty, by themselves, can be as vicious and scarring as acts of physical cruelty). Here, there is no evidence that the defendant tortured or abused the victim or that she inflicted pain and suffering greater than that necessary to complete the offense. Rather, after shooting the victim, the defendant dialed 911 and waited with him until emergency assistance arrived. Nevertheless, I concur with the majority that the four-year sentence, one year above the minimum, was warranted.

Walter Eugene Ingram v. State of Tennessee
W2003-00442-CCA-R3-CD
Authoring Judge: Judge Norma McGee Ogle
Trial Court Judge: Judge Joseph B. Dailey

The defendant, Walter Eugene Ingram, filed a “Motion to Correct Illegal Sentence” in the Shelby
County Criminal Court. Upon reviewing the motion and the State’s response, the trial court
summarily dismissed the motion, finding that it failed to allege grounds for relief. The defendant
appealed. Upon review of the record and the parties’ briefs, we conclude that the defendant’s appeal should be dismissed

State of Tennessee v. Barry Graham
M2003-00949-CCA-R3-CD
Authoring Judge: Judge Alan E. Glenn
Trial Court Judge: Judge James K. Clayton, Jr.

The defendant, Barry Graham, was convicted by a Rutherford County Circuit Court jury of aggravated burglary, a Class C felony, and theft of property under $500, a Class A misdemeanor. He was sentenced by the trial court as a Range III, persistent offender to concurrent sentences of thirteen years for the aggravated burglary conviction, and eleven months, twenty-nine days for the theft conviction, to be served consecutively to a sentence in a previous case. The sole issue the defendant raises on appeal is whether the circumstantial evidence at trial was sufficient to establish his guilt of the offenses. We conclude the evidence was sufficient for a rational jury to find him guilty of aggravated burglary and theft under $500 beyond a reasonable doubt. Accordingly, we affirm the judgments of the trial court.

MacArthur English v. State of Tennessee
E2003-00935-CCA-R3-PC
Authoring Judge: Judge Alan E. Glenn
Trial Court Judge: Judge James E. Beckner

The petitioner appeals the denial of his petition for post-conviction relief from his guilty pleas to two counts of felony reckless endangerment, arguing that the post-conviction court erred in finding he received the effective assistance of counsel and that his guilty pleas were knowingly, voluntarily, and intelligently entered. Following our review, we affirm the denial of the petition.

State of Tennessee v. Marcillo Anderson
W2003-00013-CCA-R3-CD
Authoring Judge: Judge Jerry L. Smith
Trial Court Judge: Judge Bernie Weinman

The appellant, Marcillo Anderson, was convicted by a jury of second degree murder and sentenced to twenty years as a Range One, Standard Offender. His release eligibility was classified as violent, requiring him to serve one hundred percent (100%) of his sentence. In this direct appeal, the appellant challenges the sufficiency of the evidence and the trial court’s denial of a jury instruction on self-defense. We hold that none of the issues raised by the appellant warrant a reversal and affirm the conviction.

State of Tennessee v. Richard Eugene Thompson
W2002-02696-CCA-R3-CD
Authoring Judge: Judge J. Curwood Witt, Jr.
Trial Court Judge: Judge Jon Kerry Blackwood

The defendant, Richard Eugene Thompson, appeals the lower court’s failure to grant alternative sentencing following his guilty plea to vehicular assault. Discerning no error, we affirm.

State of Tennessee v. Charles Vantilburg, III
W2002-01480-CCA-R3-CD
Authoring Judge: Judge John Everett Williams
Trial Court Judge: Judge Joseph B. Dailey

The defendant was convicted of second degree murder and sentenced to twenty years in the
Tennessee Department of Correction. He contends on appeal that 1) the evidence was insufficient to prove that the killing was “knowing,” 2) the trial court erred in admitting a photo of the victim while he was alive, allowing a “memo of understanding” to be read into evidence, and refusing to admit a report of an expert witness into evidence, 3) the State made improper remarks during closing argument, 4) the trial court gave erroneous jury instructions as to the definition of “knowingly,” and 5) the sentence was improper. We conclude that the definition of “knowingly” given by the trial court improperly lessened the State’s burden of proof and was not harmless beyond a reasonable doubt. Therefore, we reverse and remand for a new trial, based on the erroneous jury instruction given by the trial court.

Jerry Neal Carpenter v. State of Tennessee
E2001-01732-SC-R11-PC
Authoring Judge: Justice Janice M. Holder
Trial Court Judge: Judge Richard R. Baumgartner

The sole issue before the Court in this post-conviction proceeding is whether the petitioner, Jerry Neal Carpenter, was denied his constitutional right to the effective assistance of appellate counsel. At trial, the jury was given instructions on first degree premeditated murder, first degree felony murder, and robbery. The trial court declined trial counsel’s request to provide the jury with lesserincluded offense instructions, and Carpenter was convicted of first degree felony murder. Carpenter argues that he was denied the effective assistance of counsel on direct appeal because appellate counsel failed to challenge the trial court’s refusal to instruct the jury on second degree murder as a lesser-included offense. After reviewing the record and applicable authority, we hold that Carpenter has failed to establish his claim of ineffective assistance of appellate counsel. We therefore affirm the Court of Criminal Appeals’ judgment denying post-conviction relief.

Jerry Neal Carpenter v. State of Tennessee - Concurring
E2001-01732-SC-R11-PC
Authoring Judge: Chief Justice Frank F. Drowota, III
Trial Court Judge: Richard R. Baumgartner

Peggy Pistole v. Stephanie D. Hayes, et al.
M2002-00470-COA-R3-CV
Authoring Judge: Presiding Judge Houston M. Goddard
Trial Court Judge: Judge Carol L. Soloman

In this appeal from the Circuit Court for Davidson County the Plaintiff/Appellant, Peggy Pistole, argues that the trial court erred in excluding witness testimony upon grounds that their identity was not disclosed in Ms. Pistole's response to interrogatories. We reverse the judgment of the trial court and remand.