David Lynn McClure v. State of Tennessee
M2001-02907-CCA-R3-PC
Authoring Judge: Judge Jerry L. Smith
Trial Court Judge: Judge Cheryl A. Blackburn

The Petitioner, David Lynn McClure, was indicted on March 28, 1994 for one count aggravated sexual battery and two counts of rape of a child. He was convicted by a jury of aggravated sexual battery, rape of a child and attempt to commit the rape of a child. He received an effective sentence of 30 years as a Range I offender. The petitioner appealed his convictions and sentence, and they were affirmed. See State v. David Lynn McClure, No. 01C01-9505-CR-00145, 1997 WL 211254 (Tenn. Crim. App at Nashville, Apr. 30, 1997). The petitioner filed a pro se petition for post-conviction relief on October 14, 1999. Following an evidentiary hearing counsel was appointed and an amended petition was filed. This petition was denied on October 31, 2001. The petitioner then filed a notice of appeal on November 15, 2001. In this appeal the petitioner raises the issue of whether the post-conviction court correctly dismissed his petition for post-conviction relief concluding that he received effective assistance of counsel. After a review of the record we find that petitioner has failed to carry his burden of showing that the evidence preponderates against the findings of the post-conviction court. Accordingly, the judgment of the lower court is affirmed.

Richard Lynn Norton v. State of Tennessee
M2002-00789-CCA-R3-CO
Authoring Judge: Judge Norma McGee Ogle
Trial Court Judge: Judge Seth W. Norman

The petitioner, Richard Lynn Norton, was convicted in 1989 of aggravated assault and assault. He received an effective sentence of ten years incarceration in the Tennessee Department of Correction. Subsequently, the petitioner filed for habeas corpus relief, contending that the indictment charging him with aggravated assault was defective and therefore his conviction for aggravated assault is void. The trial court denied the petition for habeas corpus relief and the petitioner appealed to this court. Upon review of the record and the parties' briefs, we affirm the judgment of the trial court.

State of Tennessee v. James McClennon
M2002-00153-CCA-R3-CD
Authoring Judge: Judge Alan E. Glenn
Trial Court Judge: Judge Cheryl A. Blackburn

The defendant was convicted of theft of property over $10,000, felony evading arrest with risk of death or injury, and felony reckless endangerment. The trial court merged the reckless endangerment conviction with the evading arrest conviction, and sentenced the defendant to fifteen years as a persistent offender for the theft conviction and twelve years as a career offender for the felony evading arrest conviction, the sentences to be served consecutively. On appeal, he presents the following claims: (1) the evidence was insufficient to support his convictions for theft over $10,000 and felony evading arrest; (2) the trial court erred in excluding his exculpatory statement, denying his request for a mistrial, and failing to instruct the jury on the lesser-included offenses of unauthorized use of a vehicle and reckless driving. Following our review, we conclude that the trial court, in its instructions as to theft over $10,000, should have instructed the jury as to the Class A misdemeanor, unauthorized use of a motor vehicle. Accordingly, we reverse the conviction for theft over $10,000 and remand for a new trial. The conviction for felony evading arrest with risk of death or injury is affirmed.

Mario Valencia, Next of Kin and Heir at Law v. Freeland & Lemm Construction Company
W2000-01700-SC-R11-CV
Authoring Judge: Justice Adolpho A. Birch, Jr.
Trial Court Judge: Judge Karen R. Williams

The plaintiff, as next friend of Francisco Valencia, filed two causes of action against Valencia's employer, the defendant, Freeland and Lemm Construction Company. The first is an action in tort alleging that the employer acted with "substantial certainty" in causing Valencia's death. The other action is a claim for benefits under the Workers' Compensation Law. The trial court dismissed the tort claims. On appeal, the Court of Appeals affirmed the trial court's ruling, holding that in the absence of proof that the employer acted with the "actual intent" to injure Valencia, the plaintiff's exclusive remedy lay within the provisions of the workers' compensation statute. We granted review in order to determine whether the judicially-created exception to the exclusive remedy requirement of workers' compensation law, which requires "actual intent," should be broadly interpreted to include an employer's conduct that is "substantially certain" to cause injury or death. Under the exception as currently construed, the plaintiff cannot sustain a tort action against the employer unless he can prove the employer acted with "actual intent." Therefore, in the absence of an allegation of "actual intent," the plaintiff is limited to his workers' compensation remedies. It is this result that the plaintiff urges us to change. We must decline to interpret the exception as the plaintiff urges. Accordingly, the provisions of the workers' compensation statute are the exclusive remedy for employees to obtain relief from employers for injuries occurring in the course and scope of employment, unless "actual intent" to injure has been established.

State of Tennessee v. Jeffrey L. Marcum
W2000-02698-SC-R11-CD
Authoring Judge: Justice Adolpho A. Birch, Jr.
Trial Court Judge: Judge Roy B. Morgan, Jr.

We granted the State permission to appeal pursuant to Rule 11 of the Tennessee Rules of Appellate Procedure to determine whether fellatio requires actual penetration. The defendant was indicted and convicted for rape of a child, aggravated sexual battery and incest. At the close of his trial on these indictments, the defendant requested an instruction on attempted rape of a child, which the trial court denied. On appeal to the Court of Criminal Appeals, the defendant contended that the victim's testimony supported an attempt instruction because a jury could interpret it to be evidence that the defendant did not actually engage in fellatio with the victim, thereby proving that he committed attempted rape and not rape. The appellate court agreed and held that the trial court's failure to instruct on attempted rape was reversible error. We find that fellatio does not require actual intrusion into the victim's mouth, and accordingly, we hold that the evidence did not support an attempt instruction. Therefore, we reinstate the defendant's conviction for rape of a child.

Health Cost Controls v. Ronald Gifford
W2001-02267-SC-R11-CV
Authoring Judge: Justice E. Riley Anderson
Trial Court Judge: W. Michael Maloan
We granted this appeal to decide whether the Court of Appeals correctly held that the appellee, Health Cost Controls, Inc., was entitled to reimbursement for medical expenses on the basis that the appellant, Ronald Gifford, failed to establish that he had not been fully compensated, i.e., "made whole" for his damages. The trial court found that the appellant's insurance policy denied coverage for expenses arising from an injury for which a third party was responsible and granted summary judgment to Health Cost Controls. Although the Court of Appeals initially affirmed the trial court's judgment, this Court remanded for further consideration under York v. Sevier County Ambulance Authority, 8 S.W.3d 616 (Tenn. 1999), which had held that an insured must be made whole before an insurer is entitled to reimbursement. On remand, the Court of Appeals concluded that York was not applicable because the appellant failed to establish that he had not been made whole and again affirmed the trial court's grant of summary judgment to the appellee. After reviewing the record, however, we conclude that our decision in York requires that the appellant Gifford be given an opportunity to establish that he was not made whole and that if he establishes that he was not "made whole," then the appellee, Health Cost Controls, is not entitled to reimbursement. Accordingly, we reverse the Court of Appeals' judgment and remand to the trial court for further proceedings.

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Trial Court Judge: Donald H. Allen

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Trial Court Judge: Donald H. Allen

State of Tennessee v. Sandra Kay Webb and Tabitha Nicole Webb
W2001-00447-CCA-R3-CD
Authoring Judge: Judge Alan E. Glenn
Trial Court Judge: Judge Roger A. Page

The defendants, Sandra Kay Webb and Tabitha Nicole Webb, were convicted of forty-seven counts of cruelty to animals and each was sentenced to concurrent sentences of eleven months and twenty-nine days for each count, with incarceration for sixty days and a prohibition from either owning animals for ten years. In addition, the defendants were ordered to pay $39,978.85 in restitution to the Jackson-Madison County Humane Society and to perform fifty hours of community service work, and each defendant was fined a total of $5000. Soon afterwards, the trial court found that each had possessed animals since their convictions and revoked their community corrections sentences. On appeal, the defendants argue that their convictions should be reversed because the search warrant affidavit was defective, as was its execution; the affiant was untruthful in the affidavit; the animal cruelty statute is unconstitutionally vague; animal shelter records, utilized by the State during the trial, were hearsay and should not have been allowed; the evidence was insufficient, failing to prove either that the defendants acted knowingly or intentionally or failed to provide necessary care; the humane society was not entitled to restitution; the defendants should not have been required to serve their sentences in incarceration or prohibited for ten years from possessing animals; their community corrections sentences should not have been revoked; and the court should not have ordered that their dogs be forfeited. Following our review, we affirm the judgments of the trial court as to forty-seven of the counts, but remand for entry of a corrected judgment to show that the defendants were acquitted of Count 8 and for an evidentiary hearing as to the payment of restitution.

State of Tennessee v. Marcus J. Turco
W2001-01085-SC-R11-CD
Authoring Judge: Justice Adolpho A. Birch, Jr.
Trial Court Judge: Judge John P. Colton, Jr.

The parties have addressed several issues in this case, each of which concerns the trial court's authority to grant relief pursuant to Rule 35(b) of the Tennessee Rules of Criminal Procedure, which articulates the procedure for correcting or reducing a sentence. Only one, however is dispositive: whether the trial court can, after adjudicating guilt, imposing sentence, and entering judgment, grant judicial diversion as Rule 35(b) relief. This issue is one of first impression in this state. After careful examination of the record and due consideration of applicable authority, we conclude that there is no statutory authority for permitting judicial diversion after an adjudication of guilt or imposition of sentence. Therefore, judicial diversion was erroneously granted. Because our ruling on this issue is dispositive of this cause, we need not address other issues presented by the parties.

State of Tennessee v. Jackie Leonard Durham and Gary Lee Raines, alias Gary L. Rains
E2001-01509-CCA-R3-CD
Authoring Judge: Judge Joseph M. Tipton
Trial Court Judge: Judge Stephen M. Bevil

The defendants, Jackie Leonard Durham and Gary Lee Raines, alias Gary L. Rains, appeal as of right their convictions by a Hamilton County Criminal Court jury for second degree murder, a Class A felony. Durham received an agreed twenty-five-year sentence as a violent offender, and Raines received an agreed twenty-year sentence as a violent offender. Both defendants contend that (1) the evidence is insufficient to support their second degree murder convictions and (2) prosecutorial misconduct in closing argument requires a new trial. Additionally, Raines contends that (3) the trial court committed plain error by not instructing the jury on voluntary intoxication. We affirm the trial court's judgments of conviction.

Ronnie Jones vs. George Stokely
E2002-01593-COA-R3-CV
Authoring Judge: Judge Charles D. Susano, Jr.
Trial Court Judge: Telford E. Forgerty, Jr.
This is a boundary line dispute. The plaintiffs, Ronnie A. Jones and his wife, Vonda H. Jones ("the Jones"), appeal the trial court's finding that the property line they share with their neighbors, the defendants George Stokely and his wife, Sheila Y. Stokely ("the Stokelys"), is as alleged in the Stokelys' counterclaim. The Jones contend: (1) that the evidence preponderates against the trial court's determination of the location of the boundary line; (2) that the trial court committed reversible error when it admitted into evidence, as ancient records, certain maps and documents; and (3) that the trial court abused its discretion when it refused to grant the Jones a new trial based upon "newly discovered" evidence. We affirm.

E2002-01158-COA-R3-CV
E2002-01158-COA-R3-CV
Authoring Judge: Judge Charles D. Susano, Jr.
Trial Court Judge: Jacqueline E. Schulten

Phyllis Patrice Braden v. Nissan North America, Inc.,
M2002-01173-WC-R3-CV
Authoring Judge: James L. Weatherford, Sr.J.
Trial Court Judge: Robert E. Corlew, III, Chancellor
In this case, the employee sustained an elbow injury caused by her repetitive work activities. The trial court found that the employee had suffered a 1% vocational disability to her right arm. In her appeal, the employee argues that the evidence preponderates against a finding of 1% and that the judgment in this matter should be increased to adequately compensate the plaintiff for her loss of employment opportunity. For the reasons stated in this opinion, We affirm the judgment of the trial court.

State of Tennessee v. Christina B. Jones
M2002-02428-CCA-R3-CD
Authoring Judge: Judge Thomas T. Woodall
Trial Court Judge: Judge Donald P. Harris
Defendant, Christina B. Jones, pled guilty to the offense of theft of property over $1,000, a Class D felony. Pursuant to a negotiated plea agreement, Defendant received a sentence of two years with the manner of service to be determined by the trial court. Following a sentencing hearing, the trial court ordered Defendant to serve ninety days in confinement and four years on probation. The trial court also ordered Defendant to complete her GED, obtain full-time employment, and pay restitution in the amount of $1,750 to be paid at the rate of fifty dollars per month. In this appeal, Defendant argues that the trial court erred by denying her request for alternative sentencing and by imposing the same sentence that her co-defendant received. After a careful review of the record, we affirm the judgment of the trial court.

State of Tennessee v. Christina B. Jones - Dissenting
M2002-02428-CCA-R3-CD
Authoring Judge: Judge Joseph M. Tipton
Trial Court Judge: Judge Donald P. Harris
I respectfully disagree with some of the reasoning and the result reached in the majority opinion. I do not believe that the state overcame the presumption that the defendant is a favorable candidate for alternative sentencing. I would hold that she is entitled to a sentence that does not involve time confined in jail. In this respect, I disagree with the view in the majority opinion as to what constitutes an alternative sentence.

Heather Carey v. Margaret R. Johnson
M2002-00911-COA-R3-CV
Authoring Judge: Judge Frank Clement, Jr.
Trial Court Judge: Thomas W. Graham
An employee of a utility company went to the private residence of a customer to re-connect service which had been disconnected for non-payment where she was violently attacked by the customer who hit her in the jaw with a flashlight, beat her with car keys and threatened to kill her by throwing her off of the mountain and, thereafter, show her dead carcass to her children. The utility employee sued the customer for personal injuries, infliction of emotional distress and punitive damages. The trial court granted judgment by default as to liability against the defendant for the defendant's repeated failure to attend her discovery deposition. The trial on damages was conducted without a jury. The trial court awarded compensatory damages and punitive damages. We affirm.

State of Tennessee v. Marian Esther Cox
E2002-01177-CCA-R3-CD
Authoring Judge: Judge Robert W. Wedemeyer
Trial Court Judge: Judge Thomas W. Graham

The Defendant entered a "best interest" guilty plea to arson, a Class C felony. Following a sentencing hearing, the trial court sentenced the Defendant to a split confinement sentence of four years, with one year to be served in the Bledsoe County jail and the remainder to be served on probation. The Defendant now challenges the propriety of the sentence. We affirm the judgment of the trial court.

State of Tennessee v. Ronald Paxton
W2002-00268-CCA-R3-CD
Authoring Judge: Presiding Judge Gary R Wade
Trial Court Judge: Judge Joseph B. Dailey

The defendant, Ronald Paxton, was convicted of second degree murder. The trial court imposed a twenty-five year sentence. In this appeal, the defendant argues that the evidence is insufficient to support his conviction and that the sentence is excessive. The judgment of the trial court is affirmed.

Jennifer Burnett vs. Christopher Burnett
E2002-01614-COA-R3-CV
Authoring Judge: Judge David Michael Swiney
Trial Court Judge: Bill Swann
Jennifer Chante Burnett ("Mother") filed a Complaint for Absolute Divorce seeking a divorce from Christopher John Burnett ("Father") and requesting to be designated as the primary residential parent of the parties' minor daughter. Father filed an answer and counterclaim wherein he also sought a divorce and to be the primary residential parent. After a trial, the Trial Court determined it was in the best interests of the minor child for Father to be the primary residential parent, and entered judgment accordingly. Mother appeals, claiming the Trial Court failed to consider all relevant factors when making its custody determination and that the Trial Court's conclusion with regard to custody was intended to punish Mother and reward Father. We affirm the judgment of the Trial Court.

David Hill vs. Herbert Moncier
E2003-00075-COA-R3-CV
Authoring Judge: Judge Charles D. Susano, Jr.
Trial Court Judge: Dale C. Workman
David T. Hill sued Herbert S. Moncier and David S. Wigler ("the Attorneys"), both of whom are attorneys engaged in the practice of law in Knoxville, alleging legal malpractice. According to Hill, the Attorneys represented him in federal court in connection with "criminal charges and criminal and civil forfeitures." He was convicted of conspiracy, conducting an illegal gambling operation, and money laundering, fined $25,000, and received concurrent sentences of 57 months. Forfeiture of property was ordered by the district court. In the instant case, Hill seeks to recover damages allegedly caused by the Attorneys' malpractice. The Attorneys moved for dismissal on two grounds, i.e., (1) the failure of Hill to obtain post-conviction relief, and (2) the bar of the statute of limitations. The trial court dismissed the complaint without reciting its basis for doing so. Hill appeals. We affirm in part and reverse in part.

In the Matter of: H.E.J and H.E.J
M2002-00539-COA-R3-JV
Authoring Judge: Judge Ben H. Cantrell
Trial Court Judge: Alfred L. Nations
The trial court terminated the parental rights of a father of twins on multiple grounds, including abandonment and the commission of severe child abuse against the twin's mother while she was a minor child residing in his home. The court also ordered him to pay $14,400 in child support arrearages. We affirm the termination, but we reverse the child support award.

Dianna Boarman v. George Jaynes
E2001-01049-SC-R11-CV
Authoring Judge: Justice William M. Barker
Trial Court Judge: Thomas R. Frierson, II
Dianna Boarman, the Clerk and Master for the Washington County Chancery Court, filed a complaint on September 30, 1998, pursuant to Tennessee Code Annotated section 8-20-101, et. seq., seeking a pay increase for the three chief deputy clerks working in her office. Boarman later filed a second and third complaint for fiscal years 1999-2000 and 2000-01. Defendant George Jaynes, the Washington County Executive, answered denying that salary increases were necessary to enable Boarman to properly and efficiently conduct the business of her office. Jaynes also filed a counterclaim seeking the elimination of one deputy clerk position in Boarman's office. Boarman's complaints were consolidated, and a hearing was conducted before Chancellor Thomas R. Frierson, II, sitting by interchange. The trial court approved salary increases for the three chief deputy clerks. It denied the defendant's counterclaim. The Court of Appeals affirmed the trial court's denial of the county executive's counterclaim, but reversed the trial court's judgment increasing the salaries of Boarman's three chief deputy clerks. For the reasons stated herein, we reverse that part of the decision of the Court of Appeals which reverses the trial court's judgment approving the position of deputy clerk and increase in compensation. We affirm the Court of Appeals' dismissal of defendant Jaynes counterclaim.

State v. Michael Evans
E1997-00325-SC-R11-CD
Authoring Judge: Justice Frank F. Drowota, III
Trial Court Judge: E. Eugene Eblen
We granted this appeal primarily to clarify the procedure that governs when a trial court or the Court of Criminal Appeals determines that a criminal defendant was unilaterally deprived of the right to seek second-tier review pursuant to Tennessee Rule of Appellate Procedure 11. We conclude that Tennessee Supreme Court Rule 28, section (9)(D) has superseded the procedural framework of State v. Pinkston, 668 S.W.2d 676 (Tenn. Crim. App. 1984). However, the State has raised valid concerns about voids in the procedure, and as a result, we have filed contemporaneously with this opinion an order publishing for public comment a proposed amendment to Rule 28, section (9)(D). The amendment addresses the concerns raised by the State in this case, as well as other procedural issues likely to arise in the delayed appeal context. The Court solicits comments from all interested parties. Although the trial court's order granting a delayed appeal in this case contained inappropriate language purporting to "vacate[] and reinstate[]" the judgment of the Court of Criminal Appeals, the trial court otherwise substantially complied with the procedure set forth in Rule 28, Section (9)(D). Therefore, the defendant's delayed application for permission to appeal was properly filed in this Court. This Court granted the application, and after reviewing the record and considering the issues raised, we conclude that none of the assigned errors warrant reversal. Therefore, the judgment of the Court of Criminal Appeals is affirmed.

Jerry Lee Harbin vs. Chris Marie Harbin
E2002-01456-COA-R3-CV
Authoring Judge: Judge Houston M. Goddard
Trial Court Judge: W. Neil Thomas, III
Chris Marie Harbin appeals a judgment entered by the Circuit Court for Hamilton County which decreed that the parties were divorced, awarded custody of their three minor children to their father, Jerry Lee Harbin, affirmed a visitation plan proposed by Mr. Harbin, which she signed, and ordered Mr. Harbin to pay token alimony ($1.00 per month) to her. She appeals the judgment of the Court. We affirm.