Mike Littles v. State of Tennessee
W2004-00596-CCA-R3-PC
Authoring Judge: Judge J. C. McLin
Trial Court Judge: Judge Joseph H. Walker, III

The petitioner, Mike Littles, appeals the trial court’s denial of his petition for post-conviction relief.¹ The sole issue presented for review is whether the petitioner entered an involuntary plea due to ineffective assistance of counsel at trial. After reviewing the matter, we affirm the judgment of the trial court.

Darryl Gene Williams v. Bridgestone/Firestone, Inc.
M2003-02962-WC-R3-CV
Authoring Judge: J. S. (Steve) Daniel, Sr. J.
Trial Court Judge: Wchon. Don R. Ash, Circuit Judge
This case is before the court upon the entire record, including the order of referral to the Special Workers' Compensation Panel, in compliance with Tennessee Code Annotated _ 50-6-225(e)(3) for hearing and reporting of findings of fact and conclusions of law. On November 12, 2002, Mr. Darryl Gene Williams had a work-related accident which caused a torn medial meniscus in the left knee. The treatment of the knee injury revealed preexisting left knee chondromalacia, arthritis. Surgery repaired the torn medial meniscus but Mr. Williams' chondromalacia became symptomatic causing pain and limited his recovery from this injury. The trial court awarded benefits for the work-related injury and provided for future medical care for the medial meniscus tear as well as the underlying chondromalacia finding that the preexisting chondromalacia had been aggravated by the work-related injury. During oral argument, Bridgestone limited the scope of the appeal to the single issue of the propriety of the trial court awarding future medical care for the left knee chondromalacia. After carefully considering the record, we affirm the trial court determination.

Daryl Smith v. Southern States Electrical and Plumbing and Tri-State Steel
M2003-02909-WC-R3-CV
Authoring Judge: Senior Judge J. S. (Steve) Daniel
Trial Court Judge: Chancellor Jeffrey F. Stewart

This case is before the Court upon the entire record, including the order of referral to the Special Workers’ Compensation Panel, in compliance with Tennessee Code Annotated § 50-6-225(e)(3) for hearing and reporting of findings of fact and conclusions of law. Daryl Smith received a serious injury to his right knee as a result of a work-related accident in 1993 when he was employed by Tri-State Steel. Mr. Smith was awarded compensation for his permanent partial disability to his lower right extremity which included lifetime medical benefits for this right knee injury. In January of 2000, Mr. Smith fell, striking his right kneecap at a construction site while in the course and scope of his employment with Southern States Electrical and Plumbing.  Following emergency room care, Mr. Smith was treated by a series of doctors who were furnished by his employer’s workers’ compensation carrier and who provided conservative care which failed to provide relief for his knee injury. Ultimately he was released by the company doctor to return to work without restrictions or impairment. Mr. Smith continued to have difficulty in walking, standing and working on his knee and ultimately sought medical treatment at his own expense with Dr. Richard Fishbein. Dr. Fishbein performed two additional surgeries that ultimately repaired a torn cartilage and damage to the anterior cruciate ligament of the right knee.

Dr. Fishbein attributed this surgical repair to the fall which occurred during Mr. Smith’s employment with Southern States. However, the trial court found that this treatment was related to the original knee injury and was the responsibility of Tri-State Steel under the provisions of Tenn. Code Ann. § 50-6-204. The trial court found that there was no compensable injury as a result of the January 2000 fall and awarded nothing to Mr. Smith. The court ordered Tri-State to pay for the medical care as a part of their obligation to provide future medical benefits for the 1993 injury. Tri-State perfected this appeal. Although Dr. Fishbein found that Mr. Smith had an additional 10 to 12 % more impairment to his right extremity as a result of the 2000 fall, Mr. Smith failed to perfect an appeal of the dismissal of his claim against Southern States. Therefore, this appeal is limited to determining which of the two former employers will be responsible for the medical care that Mr. Smith received and any future care that may be necessitated because of this work-related incident. We find that the proof fails to preponderate in favor of the trial court’s decision and reverse.

State of Tennessee v. Kirk Williams
E2004-01452-CCA-MR3-CD
Authoring Judge: Presiding Judge Gary R Wade
Trial Court Judge: Judge Rebecca J. Stern

The defendant, Kirk Williams, was indicted for driving under the influence and obstructing traffic. After granting a motion to suppress all evidence obtained from the traffic stop, the trial court permitted the state an application for a discretionary appeal under Rule 9 of the Tennessee Rules of Appellate Procedure. Because the effect of the ruling was a dismissal of the charges, this court accepted the appeal under Rule 3 and waived the timely filing of notice of appeal by the state. The issue presented for review is whether the trial court erred by granting the motion to suppress. The judgment is reversed and the cause is remanded for a trial on the merits.

State of Tennessee v. Carrie Ann Brewster and William Justin Brewster
E2004-00533-CCA-R3-CD
Authoring Judge: Judge James Curwood Witt, Jr.
Trial Court Judge: Judge Mary Beth Leibowitz

The defendants, Carrie Ann Brewster and William Justin Brewster, appeal from their Knox County Criminal Court jury convictions of first degree felony murder, facilitation of first degree premeditated murder, especially aggravated robbery, and especially aggravated burglary. On appeal, the defendants claim that the convicting evidence was insufficient to support the convictions and that the trial court erred in denying the defendants' motions to suppress their pretrial confessions. Because the record supports the convictions and the trial court's ruling on the pretrial motions to suppress, we affirm; however, we modify the especially aggravated burglary conviction to one of aggravated burglary.

William Edward Hargrove v. Merriellen Hargrove
W2004-00237-COA-R3-CV
Authoring Judge: Judge Holly M. Kirby
Trial Court Judge: Chancellor Ron E. Harmon

This case is about post-divorce modification of child support. At the time of the parties’ divorce,
they adopted a permanent parenting plan which designated the father as the primary residential
parent of the parties’ son and the mother as the primary residential parent of the parties’ daughter.
Each had a child support obligation to the other, which was offset with the father paying the
difference to the mother. The daughter graduated from high school. As a result, the father’s child
support obligation to the mother was terminated, and the mother was ordered to pay increased child support to the father for their son. The trial court also ordered the mother to reimburse the father for the son’s health insurance premiums and to pay the father’s attorney’s fees. The mother appeals, arguing that her child support obligation could not be modified because the evidence did not indicate a significant variance in the mother’s income as required by Tennessee law. We affirm the ruling of the trial court as modified.
 

Patricia Lynn Finger v. James Gang Amusements
E2004-00593-COA-R3-CV
Authoring Judge: Presiding Judge Herschel Pickens Franks
Trial Court Judge: Judge William Dale Young

Plaintiff's action against defendant for the negligent hiring of the perpetrator of a crime against plaintiff was dismissed by the Trial Judge on a directed verdict at the end of plaintiff's proof. We affirm.

State of Tennessee, Department of Children's Services v., JCG, In the matter of BJG
E2004-02103-COA-R3-PT
Authoring Judge: Presiding Judge Herschel Pickens Franks
Trial Court Judge: Judge William B. Hawkins

In this parental termination case, the father, JCG appeals the termination of his parental rights to BJG.

In Re Adoption of John A. Kleshinski and Kevin Kleshinski, Chirlena Kleshinski and John E. Kleshinski, v. Julia Elizabeth Kleshinski
M2004-00986-COA-R3-CV
Authoring Judge: Judge Holly Kirby Lillard
Trial Court Judge: Chancellor J. B. Cox

This is a termination of parental rights case. The mother and father were married, and two sons were born during the marriage. The father physically abused the mother during the marriage. In 1996, the parties divorced. Later in 1996, a consent order was entered giving the father custody of the children. The order did not require the mother to pay child support. Both parties remarried, and the mother moved to Alabama. The mother exercised visitation with the children until the early part of 1999. Around that time, the mother stopped visiting the children entirely. The father claimed that
he did not know why the mother stopped visiting, and the mother said that the father and his new wife threatened her with physical harm if she attempted to see her sons. About four and a half years after the mother’s last attempt to visit with the children, the father and his new wife filed this petition to terminate the mother’s parental rights and to permit the father’s new wife to adopt the children. The father and his new wife asserted that the mother had abandoned the children by willfully failing to support or visit them. The trial court terminated the mother’s parental rights but declined to permit the adoption at that time. The mother now appeals. We reverse the finding of the willful failure to support and affirm the finding of willful failure to visit. However, we vacate the
termination of parental rights on the basis that the trial court failed to make specific written findings regarding the best interest of the children, and remand for further proceedings on this issue. Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Chancery Court is Vacated and
Remanded.

Southland Mall, L.L.C., v. Valor Security Services, Inc.
W2003-03066-COA-R3-CV
Authoring Judge: Judge Holly M. Kirby
Trial Court Judge: Judge George H. Brown

This is a breach of contract case. The service contract between the plaintiff shopping mall and the
defendant security company provided that the security companywould “defend, indemnify, and hold harmless” the mall for claims brought against the mall that related to or resulted from the services of the security company. An automobile accident on the mall parking lot resulted in the death of a child. The child’s mother sued the shopping mall and the security company for wrongful death. The complaint alleged that the driver of the car was under the observation of a security company agent who “was or should have been in contact with the driver” when the accident occurred. The security company refused to defend the mall, maintaining that the lawsuit did not result from the services it provided. The trial court granted summary judgment to the security company, holding that the security company had no duty to defend the suit. We reverse, finding that the language in the complaint was sufficient to trigger the duty to defend.
 

State of Tennessee v. Drama Sue Davis, alias
E2003-03079-CCA-R3-CD
Authoring Judge: Judge Alan E. Glenn
Trial Court Judge: Judge Mary Beth Leibowitz

In 1992, the defendant, Drama Sue Davis, alias, pled guilty and was sentenced for DUI, a Class A misdemeanor. Judgment was not entered, and the matter was reset so the defendant would have time to pay the fine and costs. She was to appear at the next setting unless she had paid the fine, costs, and restitution in the interim. Although the costs had been only partially paid, she did not appear at the next setting. A capias was issued, but the defendant was not arrested until ten years later, with the judgment then being entered by the trial court. On appeal, the defendant asserts that, pursuant to Tennessee Code Annotated section 40-6-206, the capias was void after five years, with the trial court thus lacking jurisdiction to impose sentence; and she was denied her right to a speedy trial. Following our review, we affirm the judgment of the trial court.

State of Tennessee v. Roy Edward Tolliver, Jr.
E2003-02886-CCA-R3-CD
Authoring Judge: Judge David G. Hayes
Trial Court Judge: Judge James E. Beckner

The Appellant, Roy Edward Tolliver, Jr., was convicted by a Greene County jury of one count of cruelty to animals and was sentenced to eleven months and twenty-nine days in jail. On appeal, Tolliver argues that (1) the evidence is insufficient to support the verdict and (2) the sentence is excessive. After review of the record, we affirm the conviction and sentence.

State of Tennessee v. Barbara Ann Bryant
W2004-01245-CCA-R3-CD
Authoring Judge: Judge J. Curwood Witt, Jr.
Trial Court Judge: Judge Joseph H. Walker, III

The defendant, Barbara Ann Bryant, appeals the sentencing judgment of the Tipton County Circuit
Court, which resulted in an effective 33-year incarcerative sentence for vehicular homicide and
vehicular assault. We affirm.

Joyce Marie Brasher v. Donny Gene Brasher
W2004-01314-COA-R3-CV
Authoring Judge: Presiding Judge W. Frank Crawford
Trial Court Judge: Chancellor Ron E. Harmon

This is a child support case. Father/Appellant seeks reversal of the amount of child support arrearage set by the trial court and relief from the trial court’s award of attorney’s fees and costs to Mother/Appellee. The trial court’s calculation of arrearage is based upon a trial exhibit that is not in keeping with the governing orders of support. Consequently, the calculation constitutes a retroactive modification of support, which is disallowed under T.C.A. § 36-5-101(a)(5). We reverse in part, affirm in part, and remand.

Ricky Ray Reed, Jr. v. State of Tennessee
W2004-00798-CCA-R3-PC
Authoring Judge: Judge David G. Hayes
Trial Court Judge: Judge Joseph H. Walker, III

The Appellant, Ricky Ray Reed, Jr., appeals the judgment of the Tipton County Circuit Court denying his petition for post-conviction relief. Reed collaterally challenges his jury conviction for second degree murder. On appeal, Reed argues that trial counsel’s failure to pursue an insanity defense constituted ineffective assistance of counsel. After review of the record, we affirm the denial of post-conviction relief.

Jacqueline Yarbrough v. ACH Foods
W2004-00310-WC-R3-CV
Authoring Judge: Special Judge Joe C. Loser, Jr.
Trial Court Judge: Chancellor George R. Ellis

This workers' compensation appeal has been referred to the Special Workers' Compensation Appeals Panel of the Supreme Court in accordance with Tenn. Code Ann. § 50-6-225(e)(3) for hearing and reporting to the Supreme Court of findings of fact and conclusions of law. In this appeal, the employer insists the trial court erred (1) in awarding temporary total disability benefits, (2) in finding the employee suffered an injurybyaccident, and (3) in awarding permanent partial disability benefits based on 25 percent to the body as a whole. As discussed below, the panel has concluded the judgment should modified by omitting the award of temporary total disability benefits.

Cynthia L. Botts v. State of Tennessee
W2003-02890-WC-R3-CV
Authoring Judge: Special Judge John A. Turnbull
Trial Court Judge: Judge Nancy C. Miller Herron

This workers' compensation appeal has been referred to the Special Workers' Compensation Appeals Panel of the Supreme Court in accordance with Tennessee Code Annotated Section 50-6-225(e)(3) for hearing and reporting to the Supreme Court of findings of fact and conclusions of law. The Commissioner determined that the employee had suffered a carpal tunnel injury requiring surgery, that notice was excused, and that employee retained a permanent disability to the left third finger of fifty (50%) percent, and the left second finger of thirty (30%) percent. Employee appeals, insisting that the Commissioner erred in not making the permanent disability award to both arms. The employer appeals the finding that notice was excused. We find that the evidence preponderates in favor of the trial court’s finding that notice was excused, but that the evidence preponderates against limiting the disability to the fingers of the left hand for this carpal tunnel injury. Instead, we find the employee has suffered a permanent partial disability to the left arm in the amount of thirty (30%) percent. Judgment of the Claims Commission affirmed in part and modified.

State of Tennessee v. Jeremiah Ginn - Concurring and Dissenting
M2003-02330-CCA-R3-CD
Authoring Judge: Judge Thomas T. Woodall
Trial Court Judge: Judge Larry B. Stanley, Jr.

I concur with all portions of the majority opinion except for that portion which holds that application of enhancement factors (9) (previous history of unwillingness to comply with conditions of sentencing involving release into the community) and (10) (defendant employed a deadly weapon during the commission of the offense), was harmless error beyond a reasonable doubt, though in violation of the dictates of Blakely v. Washington, 542 U.S. ____; 124 S.Ct. 2531 (2004). Assuming arguendo, for the purposes of this case, that Blakely error is subject to constitutional harmless error analysis, the particular facts of this case leave me where I cannot conclude beyond a reasonable doubt that the jury would have found it proper to apply enhancement factors (9) and (10).

State of Tennessee v. Jeremiah Ginn
M2003-02330-CCA-R3-CD
Authoring Judge: Judge Joseph M. Tipton
Trial Court Judge: Judge Larry B. Stanley, Jr.

A Warren County Circuit Court jury convicted the defendant, Jeremiah Ginn, of second degree murder, a Class A felony, and the trial court sentenced him to twenty-four years in the Department of Correction. The defendant appeals, claiming that the evidence was insufficient to support his conviction; that the trial court erred in instructing the jury by referring to statements made by the defendant as “admission against interest;” by not repeating mens rea definitions for lesser included offenses; and by not including a charge on the doctrine of “mutual combat”; that the trial court erred in allowing the state to introduce certain photographs into evidence; and that his sentence is excessive. We affirm the judgment of the trial court.

The Metropolitan Government of Nashville and Davidson County, in its own behalf and for the use and benefit of the State of Tennessee v. Delinquent Taxpayers as Shown on the 1999 Real Property Tax Records et al.
M2004-00040-COA-R3-CV
Authoring Judge: Judge David R. Farmer
Trial Court Judge: Chancellor Carol L. McCoy

This appeal arises from an action brought by the metropolitan government to collect delinquent property taxes. The taxpayer owned 37.25 acres of property that were zoned commercial but were granted "greenbelt" status. In 1999, the taxpayer leased 1.21 acres of his property to a retail pharmacy, but he did not inform the assessor's office of the change in use of the 1.21 acre portion of his land. In 2000, after the assessor's office learned of the change in use through a review of a building permit summary, the assessor changed the classification on the entire 37.25 acre parcel from "greenbelt" to commercial. As a result, a "rollback" was issued causing taxes to be due on the entire 37.25 acre parcel at a commercial rate for the three previous years. The assessor mailed the taxpayer a 1999 tax bill showing the amount owed due to the rollback. Although the assessor informed the taxpayer that the matter could no longer be corrected through the assessor's office, the taxpayer did not file an administrative appeal or bring a lawsuit to dispute the error in classification and assessment. Following a hearing on the delinquent tax lawsuit, the trial court found that the assessor's office erred in removing the taxpayer's entire parcel from "greenbelt" classification and subjecting the entire parcel to a tax "rollback." The court found that only the 1.21 acre portion of the parcel used for construction of the pharmacy should have lost "greenbelt" status. Additionally, the court found that, because the parties stipulated that no change in use of the property had occurred since the underlying action was initiated, its findings were dispositive not only for tax years 1999 and 2000, but also through the date of the final order, November 26, 2003. The metropolitan government appealed arguing that the taxpayer was barred by statute from contesting the validity of the assessment once the delinquent tax lawsuit was filed. We reverse.

Horace Demon Pulliam v. State of Tennessee
M2004-00087-CCA-R3-PC
Authoring Judge: Judge Norma McGee Ogle
Trial Court Judge: Judge Cheryl A. Blackburn

The petitioner, Horace Demon Pulliam, appeals the dismissal of his petition for post-conviction relief alleging that the post-conviction court erred in finding that he received effective assistance of counsel. After a review of the record, we affirm the judgment of the post-conviction court.

City of Morristown vs. Rebecca A. Long
E2004-01545-COA-R3-CV
Authoring Judge: Judge Sharon G. Lee
Trial Court Judge: Chancellor Ben K. Wexler

The appellant was discharged from her job by the City of Morristown based upon allegations that she participated in the use, possession, sale and distribution of marijuana in violation of the City's policy against illegal drugs in the workplace. She applied for unemployment benefits and her claim was denied. She appealed the denial of benefits and both the Appeals Tribunal and the Board of Review of the Employment Security Division of the Tennessee Department of Labor and Workforce Development ruled that she was eligible for unemployment benefits because the City failed to prove the alleged illegal drug activity. The trial court reversed the decision of the Board of Review. We hold that the trial court exceeded its authority under the applicable standard of review, and therefore, we reverse the judgment of the trial court and remand.

Faron Douglas Pierce v. State of Tennessee
E2004-00372-CCA-R3-PC
Authoring Judge: Judge J. C. McLin
Trial Court Judge: Judge Ray L. Jenkins

Petitioner, Faron Douglas Pierce, appeals the post-conviction court’s denial of his petition for post-conviction relief in which he alleged the ineffective assistance of counsel at trial when he was convicted of robbery. After a thorough review, we affirm the denial of post-conviction relief.

State of Tennessee v. David A. Langley
M2004-00631-CCA-R3-CD
Authoring Judge: Judge Thomas T. Woodall
Trial Court Judge: Judge Allen W. Wallace

In a three count indictment returned by the Houston County Grand Jury, Defendant, David A. Langley, was charged with rape of a child in the first two counts and with aggravated assault in count three. Following a jury trial, Defendant was convicted of rape of a child, a Class A felony, in count one; of the lesser included offense of aggravated sexual battery, a Class B felony, in count two; and of reckless endangerment with a deadly weapon, a Class E felony, in count three. Defendant was sentenced as a Range I standard offender to twenty-three years for the rape of a child conviction, ten years for the aggravated sexual battery conviction, and two years for the reckless endangerment conviction. The trial court ordered Defendant's sentence for aggravated sexual battery to be served consecutively to his sentence for rape of a child, and his sentence for reckless endangerment to be served concurrently with his sentence for aggravated sexual battery, for an effective sentence of thirty-three years. On appeal, Defendant argues (1) that the evidence is insufficient to support his convictions; (2) that the trial court's demeanor denied Defendant his due process right to a fair trial; (3) that the trial court erred in not suppressing Defendant's statements which he made on the night he was arrested; (4) that the trial court erred in not granting a mistrial when the State's witnesses made references to Defendant's previous incarceration and offenses; (5) that the State failed to make a proper election of offenses; (6) that the trial court erred in not permitting Defendant to call a certain witness and in limiting Defendant's cross-examination of Officer Chad Smith; (7) that the trial court erred in not allowing Defendant to introduce evidence pursuant to Rule 412 of the Tennessee Rules of Evidence; and (8) that the trial court erred in deferring its ruling of Defendant's motion to suppress the pornographic photographs found on his computer after his arrest. Defendant does not appeal the length or manner of service of his sentences. Following a thorough review of the record, we dismiss Defendant's conviction of felony reckless endangerment and remand for a retrial on count three of Defendant's indictment in accordance with this opinion. We otherwise affirm Defendant's judgments of conviction for rape of a child and aggravated sexual battery.

James R.W. Reynolds v. State of Tennessee
M2004-02254-CCA-R3-HC
Authoring Judge: Judge Norma McGee Ogle
Trial Court Judge: Judge J. Randall Wyatt, Jr.

The petitioner, James R.W. Reynolds, pled guilty to two counts of aggravated rape and was sentenced to concurrent thirty-five year sentences. Subsequently, the petitioner filed a petition for a writ of habeas corpus, alleging that Blakely v. Washington, 542 U.S. __, 124 S. Ct. 2531 (2004), rendered the 1982 Sentencing Reform Act unconstitutional in general and unconstitutional as applied to him specifically. The habeas corpus court summarily denied the petition for a writ of habeas corpus, and the petitioner appeals. Upon our review of the record and the parties’ briefs, we affirm the judgment of the habeas corpus court.