State of Tennessee v. William Robert Posey
E2001-02665-CCA-R3-CD
Authoring Judge: Judge David H. Welles
Trial Court Judge: Judge Stephen M. Bevil

The Defendant, William Robert Posey, appeals as of right from the judgment of the trial court, which found him guilty of driving under the influence (DUI) as a third offender. The Defendant raises two central issues on appeal. First, the Defendant argues that the two preceding DUI convictions are invalid on their face and therefore cannot be used to enhance his punishment for the present conviction. Second, the Defendant argues that the trial court committed error by failing to hold a hearing pursuant to Momon v. State, 18 S.W.3d 152 (Tenn. 1999), to determine whether the Defendant personally waived his right to testify. Because the record is void of any evidence that the Defendant did personally waive his right to testify, 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.

John Earl Scales v. State of Tennessee
M2001-00310-CCA-R3-PC
Authoring Judge: Judge Jerry L. Smith
Trial Court Judge: Judge Steve R. Dozier

The appellant, John Earl Scales, was convicted by a Davidson County jury of felony murder and attempted aggravated robbery. He was sentenced to life imprisonment for the murder with a concurrent three-year term for the attempted aggravated robbery conviction. On direct appeal this Court affirmed the convictions and sentences. State v. John Earl Scales, No. 01C01-9709-CR-00412 (Tenn. Crim. App., at Nashville Feb. 24, 1999), 1999 Tenn. Crim. App. LEXIS 168, at *28. On November 20, 2000, Scales filed a petition for post-conviction relief. On December 19, 2000, the post-conviction court summarily dismissed the petition. From that dismissal the appellant perfected the instant appeal. We find that the post-conviction court erred in summarily dismissing the appellant's claims regarding the alleged ineffectiveness of his appellate counsel on the grounds of waiver or previous determination. Moreover, we find that the post-conviction court's order indicating that such allegations do not state "colorable claims" does not set forth with sufficient specificity the court's findings with regard to the allegations concerning the alleged ineffectiveness of appellate counsel. We therefore remand this case for entry of an appropriate order in accordance with this opinion.

State of Tennessee v. Ernest Willie Mays
M2001-02446-CCA-R3-CD
Authoring Judge: Judge Alan E. Glenn
Trial Court Judge: Judge Allen W. Wallace

The defendant, Ernest Willie Mays, pled guilty to sale of cocaine, a Class C felony, and was sentenced as a Range I, standard offender to five years in the Tennessee Department of Correction. He appeals his sentence, arguing that it is excessive and that the trial court erred in (1) refusing to consider that less restrictive measures than incarceration had not been tried unsuccessfully, (2) not applying any mitigating factors, (3) finding that the offense constituted a criminal enterprise, and (4) considering the fact that he had four children out of wedlock. We affirm the sentence imposed by the trial court.

State of Tennessee v. Vernon DeWayne Waller
M2001-02414-CCA-R3-CD
Authoring Judge: Judge David G. Hayes
Trial Court Judge: Judge Cheryl A. Blackburn

A Davidson County jury convicted the Appellant, Vernon Dewayne Waller, of sale of a counterfeit controlled substance, a class E felony. The trial court sentenced Waller as a career offender to six years in the Department of Correction. On appeal, Waller presents the following issues for review: (1) Did the trial court err in ruling that if the Defendant chose to testify, his prior felony drug convictions would be admissible to impeach his credibility; (2) Did the trial court err in allowing the State to introduce a substance alleged to be cocaine and a lab report identifying it as such through a witness other than the technician who tested the substance; and (3) Did the trial court err in finding the Defendant was a career offender. After a review of the record, we find that Waller's issues are without merit. Accordingly, the judgment of the trial court is affirmed.

State of Tennessee v. Jimmy Lee King
W2001-01690-CCA-R3-CD
Authoring Judge: Judge J. Curwood Witt, Jr.
Trial Court Judge: Judge Julian P. Guinn

Jimmy Lee King stands convicted of the attempted first-degree murder of Billy Dwayne Pace. King received his conviction at the conclusion of a jury trial in the Benton County Circuit Court, and he was sentenced to a 20-year incarcerative term. Claiming that the evidence is insufficient to support the conviction, he has appealed. Because we are unpersuaded, we affirm.

State of Tennessee v. Michael L. Taylor
W2001-02744-CCA-R3-CD
Authoring Judge: Judge John Everett Williams
Trial Court Judge: Judge C. Creed McGinley

Pursuant to a negotiated plea agreement, the defendant pled guilty to possession of crack cocaine with the intent to resell, distribute or manufacture, possession of marijuana, possession of drug paraphernalia, and four counts of the sale of over .5 grams of crack cocaine. The defendant was sentenced as agreed to nine (9) years for each felony count and eleven months and twenty-nine days for each misdemeanor count. The agreement also provided that all of the sentences would be served concurrently for an effective nine-year sentence. Following a sentencing hearing, the trial court denied alternative sentencing. In this appeal, the defendant challenges the denial of alternative sentencing. We affirm.

State of Tennessee v. Wilson Neely
W2001-01327-CCA-R3-CD
Authoring Judge: Judge James Curwood Witt, Jr.
Trial Court Judge: Judge Chris B. Craft

Convicted at a jury trial of first-degree, premeditated murder and presently serving a life sentence, Wilson Neely appeals from the Shelby County Criminal Court. He claims that his conviction is improperly based upon uncorroborated and insufficient testimony of accomplices. Because we disagree, we affirm.

Christmas Lumber vs. Robert Valiga
E2001-02444-COA-R3-CV
Authoring Judge: Judge David Michael Swiney
Trial Court Judge: John F. Weaver
After experiencing significant problems with the construction of a house he was having built, Robert E. Valiga ("Valiga") sued Robert H. Waddell ("Waddell") and John Graves ("Graves") (collectively referred to as "Defendants") seeking damages for the poor construction. Although the construction contract was between Valiga and R.H. Waddell Construction, Inc., no corporate charter had been filed when the contract was signed. The Trial Court concluded Waddell and Graves were partners and entered judgment against them individually for $80,045.79. After judgment was entered, Defendants filed motions seeking to amend their answers to assert a statute of limitations defense. These motions were denied by the Trial Court. Graves and Waddell appeal, challenging the Trial Court's conclusion that they were partners and subject to individual liability, the denial of their motions seeking to amend their answers to assert a statute of limitations defense, and the Trial Court's award of prejudgment interest to Valiga. We affirm.

Ray Edwards vs. Hallsdale-Powell Utility District
E2002-00395-COA-R9-CV
Authoring Judge: Presiding Judge Herschel P. Franks
Trial Court Judge: Wheeler A. Rosenbalm
This is an appeal from the grant of partial summary judgment for defendant that plaintiff could not maintain an action for inverse condemnation. On appeal, we vacate the grant of summary judgment.

State Dept of Children's Srvcs vs. B.J.A.L.
E2002-00292-COA-R3-JV
Authoring Judge: Judge Charles D. Susano, Jr.
Trial Court Judge: Shirley B. Underwood
The trial court terminated the parental rights of B.J.A.L. ("Mother") with respect to her minor female child, R.A.A. (DOB: September 15, 1989). Mother appeals, arguing, among other things, that the evidence preponderates against the trial court's determination that there is clear and convincing evidence to terminate her parental rights. We affirm.

Nikki Bowie vs. Richard Bowie
E2001-02923-COA-R3-CV
Authoring Judge: Judge David Michael Swiney
Trial Court Judge: John F. Weaver
Richard Roy Bowie ("Husband") and Nikki Lynn Herrington Bowie ("Wife") were divorced in 2000. Wife was awarded sole custody of the couple's young child. Husband was granted visitation pursuant to a custody agreement filed March 1, 2000. The Trial Court found that Wife's monthly need was $7,200, but that Husband was unable to pay this amount. The Trial Court awarded Wife monthly child support in the amount of $1,057, and alimony in futuro of $1,500 per month. Husband appeals the type of alimony awarded to the Wife, the Trial Court's finding regarding the amount of Wife's monthly need, and the amount of alimony awarded. Wife raises an additional issue regarding whether the Trial Court erred in not awarding her attorney's fees. We affirm.

Betty Black & Barry Goins vs. State Farm Mutual
E2002-00206-COA-R3-CV
Authoring Judge: Presiding Judge Herschel P. Franks
Trial Court Judge: John K. Byers
In action for breach of insurance contract, the Trial Court granted Summary Judgment on the ground insurance company had properly satisfied all claims under plaintiffs' policies. Plaintiffs have appealed. We affirm.

AAron Del Shannon vs. Darla Shannon
E2002-00518-COA-R3-CV
Authoring Judge: Judge Charles D. Susano, Jr.
Trial Court Judge: Michael A. Davis
In this post-divorce case, Aaron Del Shannon ("Father") filed a petition against his former wife, Darla Jean Shannon ("Mother"), seeking to modify the parties' divorce judgment, which judgment, inter alia, had awarded Mother custody of the parties' two minor children. In his petition, Father sought a change of custody and asked to be named primary residential parent of the children. The trial court found a substantial and material change of circumstances and granted Father's petition. We reverse.

Roger Harris v. State of Tennessee
E2001-00782-CCA-R3-PC
Authoring Judge: Judge John Everett Williams
Trial Court Judge: Judge Lynn W. Brown

Petitioner appeals the trial court's denial of post-conviction relief. On appeal, petitioner alleges (1) ineffective assistance of trial counsel, (2) ineffective assistance of appellate counsel, (3) he was unconstitutionally denied bail, and (4) the indictment against him for first degree murder was unconstitutionally amended. We grant petitioner a delayed appeal, and we stay further proceedings on his remaining post-conviction claims.

State of Tennessee v. Robert Andrew Lewis
E2001-02305-CCA-R3-CD
Authoring Judge: Judge Thomas T. Woodall
Trial Court Judge: Judge Ray L. Jenkins

Defendant, Robert Andrew Lewis, pled guilty to two counts of driving under the influence of an intoxicant, first offense, in the General Sessions Court of Knox County. The trial court imposed concurrent sentences of confinement for 11 months and 29 days, with all but 10 days of the sentences suspended. In addition, the trial court suspended Defendant's driving privileges for one year, and ordered him to pay a fine of $350.00 and attend DUI school. Within one year, a violation of probation warrant was issued, alleging that Defendant was driving on a revoked license, arrested for DUI, and had failed to complete DUI school. The General Sessions Court of Knox County revoked Defendant's probation and reinstated his sentences for both offenses. Defendant appealed to the Criminal Court of Knox County. On the date that his case was to be heard, Defendant's trial counsel did not appear in court. As a result, the criminal court dismissed the appeal for failure to prosecute and affirmed the judgment of the Knox County General Sessions Court revoking Defendant's probation. After a review of the record and applicable law, we reverse the judgment of the criminal court and remand this case for a de novo hearing on the probation revocation warrant.

2001-01175-COA-R3-CV
2001-01175-COA-R3-CV
Trial Court Judge: Jean A. Stanley

Frank White & Sue White vs. Gerald Jenkins
E2002-00275-COA-R3-CV
Authoring Judge: Presiding Judge Herschel P. Franks
Trial Court Judge: D. Kelly Thomas, Jr.
The Trial Court awarded landlord a judgment against tenant for possession, rent owing, and attorney fees. On appeal, we affirm with modifications.

Kimberly Lewis vs. Timothy Lewis
E2002-00209-COA-R3-CV
Authoring Judge: Judge Houston M. Goddard
Trial Court Judge: G. Richard Johnson
In this divorce case, Timothy E. Lewis ("Husband") appeals the Trial Court's decision, arguing that it erred in classifying certain assets as marital rather than his separate property. Husband asserts that "the failure of the Trial Court to properly characterize separate property versus marital property [resulted in] an inequitable division of the parties' assets." We find that several of the assets classified by the Trial Court as marital property should have been classified as Husband's separate property. We also find that a portion of the Husband's credit card debt, which was incurred during the marriage, should be assigned to Kimberly G. Harmon ("Wife"). We affirm the Trial Court's judgment in all other respects.

Patricia Ridgeway vs. Jimmy Kimball
E2001-02577-COA-R3-CV
Authoring Judge: Judge Houston M. Goddard
Trial Court Judge: Daryl R. Fansler
The sole issue for our review in this divorce case is whether the Chancellor erred in ordering the Appellant, Jimmy Clarke Kimball ("Husband") to pay alimony in futuro in the amount of $1,000 per month to the Appellee, Patricia Anne Ridgeway ("Wife"). We find that the Chancellor properly considered the applicable statutory factors and that the evidence does not preponderate against his decision to award alimony in futuro rather than rehabilitative alimony. Consequently, we affirm the Chancellor's judgment.

Lassie Frazier vs. Brock's Open Air Market
E2002-00203-COA-R3-CV
Authoring Judge: Judge David Michael Swiney
Trial Court Judge: Richard R. Vance
Clifford Frazier and Azeline Kittrell were sitting on a bench located in front of Brock's Open Air Market. Catherine Ottinger ("Ottinger"), who already had consumed six beers, was at the store to purchase a salad and more beer. As Ottinger was leaving, her car, for whatever reason, accelerated rapidly while in reverse and made a U-turn at a high rate of speed. While in reverse, Ottinger drove onto a public road and then came back onto the store's premises, jumped a concrete curb and hit Clifford Frazier and Azeline Kittrell, who later died from their injuries. Plaintiffs sued Brock's Open Air Market asserting, as relevant to this appeal, premises liability. The Trial Court granted summary judgment to Brock's Open Air Market on the basis that the accident in question was not reasonably foreseeable. We affirm.

State of Tennessee v. Ivan Ray Shirk
E2001-00460-CCA-R3-CD
Authoring Judge: Judge Joseph M. Tipton
Trial Court Judge: Judge Richard R. Baumgartner
The defendant, Ivan Ray Shirk, appeals from the Knox County Criminal Court's denial of his motion to declare void the judgment proclaiming him to be a habitual offender pursuant to the Motor Vehicle Habitual Offenders (MVHO) Act. He contends that the MVHO judgment is void because the trial court improperly entered it nunc pro tunc before entry of the judgments on two of the three qualifying offenses. We affirm the trial court's denial of the defendant's motion to void the MVHO judgment.

State of Tennessee v. Thomas H. Whaley
E2001-01476-CCA-R3-CD
Authoring Judge: Judge Joe G. Riley
Trial Court Judge: Judge Richard R. Vance

The Sevier County Grand Jury returned a two count presentment alleging the defendant committed a vehicular homicide by intoxication for the death of one victim and a vehicular assault by intoxication for the serious bodily injury of another victim. The defendant pled guilty to the amended charges of vehicular homicide by recklessness and aggravated assault by recklessness for agreed concurrent sentences of six years and three years, respectively, with the issue of alternative sentencing to be determined by the trial court. The trial court sentenced the defendant to split confinement and ordered the defendant to serve nine months "day-for-day" in the county jail with the remainder of his six-year effective sentence on supervised probation. In this appeal, the defendant alleges he should have received community corrections, or alternatively, he received excessive confinement. We conclude the trial court improperly ordered the defendant to serve his nine months of confinement "day-for-day," thereby depriving him of the opportunity to earn good conduct credits. We remand for deletion of the day-for-day requirement; however, we affirm the trial court in all other respects.

State of Tennessee v. Christopher Lynn Brabson
E2001-01730-CCA-R3-CD
Authoring Judge: Judge Norma McGee Ogle
Trial Court Judge: Judge Carroll L. Ross

The appellant, Christopher Lynn Brabson, was convicted by a jury in the McMinn County Criminal Court of one count of the sale of .5 grams or more of cocaine, a Class B felony. The jury also assessed a fine of $80,000. Following a sentencing hearing, the trial court imposed a sentence of ten years incarceration in the Tennessee Department of Correction. On appeal, the appellant alleges: (1) the evidence is insufficient to support a verdict of guilt beyond a reasonable doubt, (2) the trial court erred in sentencing, and (3) the jury imposed an excessive fine. We affirm the judgment of the trial court but reduce the fine to $25,000.

State of Tennessee v. Brent Tod Perkins
E2001-01826-CCA-R9-CD
Authoring Judge: Presiding Judge Gary R Wade
Trial Court Judge: Judge Richard R. Vance
The defendant, Brent Tod Perkins, was charged with driving under the influence. The trial court determined that the officer had reasonable suspicion to stop the defendant's vehicle, but granted a defense motion to suppress the results of a breathalyser test, concluding that the officer failed to comply with the requirements of State v. Sensing, 843 S.W.2d 412 (Tenn. 1992). Both the state and the defendant were granted an interlocutory appeal pursuant to Rule 9 of the Tennessee Rules of Appellate Procedure. The investigatory stop was conducted with constitutional safeguards. Because the state failed to establish adherence to the Sensing requirements by a preponderance of the evidence, the order suppressing the results of the breathalyser exam is affirmed.

Gale Emerson vs. Robert Emerson
E2001-02835-COA-R3-CV
Authoring Judge: Presiding Judge Herschel P. Franks
Trial Court Judge: W. Neil Thomas, III
In this post-divorce action, the Trial Court ordered an increase in child support and ordered the father to pay 85% of the son's private school tuition. On appeal, the father insists the Trial Court was without jurisdiction to entertain the petition, and the proof did not support the increases ordered by the Trial Court. We affirm.