Bernard Kane Johnson v. State of Tennessee
E2003-02140-CCA-R3-PC
Authoring Judge: Judge J. Curwood Witt, Jr.
Trial Court Judge: Judge Ray L. Jenkins

Following an evidentiary hearing on the issue whether Bernard Kane Johnson, the petitioner, had been denied effective assistance of counsel, the post-conviction court determined that no constitutional violation had been shown and that the petitioner's sexual battery, aggravated kidnapping, and aggravated assault convictions were not void or voidable. Finding no error, we affirm the post-conviction court's dismissal of the petition.

State of Tennessee v. Brandon Shawn Jones
E2003-02050-CCA-R3-CD
Authoring Judge: Judge Joe G. Riley
Trial Court Judge: Judge Richard R. Baumgartner

The defendant, Brandon Shawn Jones, pled guilty to burglary of a motor vehicle and possession of burglary tools. The Knox County Criminal Court ordered the defendant to serve an effective two-year sentence with 120 days in confinement followed by probation. The defendant appeals the denial of total probation. We affirm the judgments of the trial court.

Beverly Miller, et al., v. United Automax
W2003-01394-COA-R3-CV
Authoring Judge: Presiding Judge W. Frank Crawford
Trial Court Judge: Judge Robert A. Lanier

Appellants sued Appellee on theories of common law misrepresentation and violation of the Tennessee Consumer Protection Act, arising from the sale of a used vehicle. A jury returned a verdict for Appellants on both theories and Appellants elected to take their remedy under the common law claim, which included an award of punitive damages. The trial court denied Appellants’ prayer for attorney fees, which were not available under the common law remedy but only under the Consumer Protection Act claim. Having been denied attorney fees, Appellants requested that they be allowed to amend their election of remedies. This request was denied. Appellants appeal. We affirm.
 

Troy Sterling Fuller v. Janie Marie Nicholson
M2003-00083-COA-R3-CV
Authoring Judge: Special Judge Alan E. Glenn
Trial Court Judge: Judge Clara W. Byrd

This is primarily a child custody dispute. The father and mother lived together with their infant son and the mother's two older sons in the mother's house trailer before moving into a house purchased by the mother with a down payment provided by the father. When their son was approximately eight months old, the parties separated and thereafter began a contentious legal battle over his custody. Following a bench trial, the trial court awarded the mother primary custody, granted the father broad visitation rights, and denied the father's request for the return of his down payment and closing costs, finding there was no equity in the house. The father appeals the trial court's award of primary custody to the mother and its denial of his request for the return of his down payment and closing costs. We affirm in part, reverse in part, and remand for further proceedings consistent with this opinion.

Johnny Phillips v. A&H Construction Company, Inc. and Evergreen National Indemnity
M2003-00353-SC-R10-CV
Authoring Judge: Justice Frank F. Drowota, III
Trial Court Judge: Chancellor Robert E. Corlew, III

We granted permission to appeal in this case to determine whether the Chancellor erred in denying temporary total disability benefits because he concluded that injuries due to an idiopathic loss of consciousness are not compensable under the Workers' Compensation Act. We hold that an injury due to an idiopathic condition is compensable if an employment hazard causes or exacerbates the injuries. The accident arises out of employment if there is a causal connection between the conditions under which the work is performed and the resulting injury. This causal link must be between the employment and the injury, rather than between the employment and the idiopathic episode. We affirm the Chancellor's factual finding that Phillips's injuries occurred within the course of his employment. Thus, the judgment of the Chancellor is reversed in part, affirmed in part, and this case is remanded to the chancery court for reinstatement of temporary total disability benefits and further proceedings consistent with this opinion.

State of Tennessee v. Bryan Christopher Hester
M2003-00503-CCA-R3-CD
Authoring Judge: Judge Joseph M. Tipton
Trial Court Judge: Judge Steve R. Dozier

A Davidson County Criminal Court jury convicted the defendant, Bryan Christopher Hester, of second degree murder, a Class A felony, and the trial court sentenced him as a Range I, violent offender to twenty-five years in confinement. The defendant appeals, claiming that (1) the evidence is insufficient to support his conviction; (2) the trial court erred by denying his motion to continue when the state revealed three days before trial that the victim had been taking an antidepressant and seeing a psychiatrist; (3) the trial court erred by allowing hearsay into evidence; (4) the trial court erred by allowing the state to introduce a bow saw into evidence; (5) the trial court erred by allowing a witness to testify about experiments conducted on the murder weapon when the state failed to prove the chain of custody; (6) the trial court erred by allowing the state medical examiner to testify; and (7) the defendant's sentence is excessive. We conclude that the trial court erred by allowing hearsay into evidence but that the error was harmless. We also conclude that the defendant's sentence is not excessive, and we affirm the judgment of the trial court.

Larry Stephen Brumit v. State of Tennessee
M2003-00488-CCA-R3-PC
Authoring Judge: Presiding Judge Gary R Wade
Trial Court Judge: Judge Don R. Ash

The petitioner, Larry Stephen Brumit, filed for post-conviction relief from 1996 convictions for two counts of first degree murder and one count of conspiracy to commit first degree murder. The post-conviction court denied the petition. In this appeal, the petitioner argues (1) that the petition was not barred by the applicable statute of limitations; and (2) that he was denied the effective assistance of counsel. The judgment is affirmed.

In Re: Adoption of T.A.M.
M2003-02247-COA-R3-PT
Authoring Judge: Presiding Judge William C. Koch, Jr.
Trial Court Judge: Chancellor J. B. Cox

This appeal involves the termination of the parental rights of an incarcerated biological father of a five-year-old child. The child’s mother and her new husband filed a petition in the Chancery Court for Lincoln County seeking to terminate the biological father’s parental rights and to approve the new husband’s adoption of the child. Following a bench trial, the trial court entered an order on August 29, 2003 granting the petition to terminate the biological father’s parental rights on the ground of abandonment. The biological father appealed. We concur with the trial court’s conclusion that the father abandoned his child by willfully failing to support and visit the child and that terminating the biological father’s parental rights is in the child’s best interests. Accordingly, we affirm the judgment.
 

In Re: Adoption of T.A.M. - Concurring
M2003-02247-COA-R3-PT
Authoring Judge: Judge William B. Cain
Trial Court Judge: Chancellor J. B. Cox

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). I agree, however, that a review of the evidence in the case discloses that the truth of the factual conclusions made by the trial are “highly probable” and thus the clear and convincing evidence standard is met. Therefore, I concur with the court’s decision to affirm the order terminating R.G.L.’s parental rights.

Randy D. Vowell v. State of Tennessee
E2003-01987-CCA-R3-PC
Authoring Judge: Judge Joe G. Riley
Trial Court Judge: Judge James B. Scott, Jr.

The petitioner appeals the Anderson County Criminal Court's denial of habeas corpus relief relating to his convictions for aggravated rape and rape. On appeal, the petitioner contends the original sentencing court erred in amending the judgments to reflect 100% release classification after they became final. We affirm the lower court's judgment denying habeas corpus relief.

Roger B. Ammons v. John Bouchard & Sons Co.; and
M2003-00940-SC-WCM-CV
Authoring Judge: Howell N. Peoples, Special Judge
Trial Court Judge: Carol Solomon, Circuit Judge
This workers' compensation appeal has been referred to the Special Workers' Compensation Appeals Panel of the Supreme Court in accordance with Tennessee Code Annotated _ 5-6- 225(e)(3) for hearing and reporting of findings of fact and conclusions of law. The employer claims that the trial court erred (1) in the amount of permanent partial disability awarded, (2) in determining the date permanent benefits commenced, (3) in awarding discretionary costs, and (4) in ordering the employer to pay the employee's attorney's fees. As modified, we affirm the trial court. Tenn. Code Ann. _ 5-6-225(e) (1999) Appeal as of Right; Judgment of the Davidson County Circuit Court is affirmed as modified. HOWELL N. PEOPLES, SP. J., in which FRANK F. DROWOTA, III, CHIEF JUSTICE., and JOHN A. TURNBULL, SP. J. joined. Andreas W. Smith, Allen, Kopet & Associates, PLLC, Chattanooga, Tennessee, for the Appellant John Bouchard Sons Co., and Associated Builders and Contractors of Tennessee Workers Compensation Self Insurance Fund. Daniel L. Clayton, Kinnard, Clayton & Beveridge, Nashville, Tennessee, for the Appellee Roger B. Ammons. 1 MEMORANDUM OPINION Facts Roger Ammons, a 46-year-old high school graduate, started working at age 17 as a plumber, the only work he has ever done. In 1983, he went to work for John Bouchard & Sons Co. ("Bouchard") as a journeyman plumber. The position required him to engage in heavy manual labor. On December 7, 1999, he sustained injuries to his back and left shoulder in a work-related motor vehicle accident while riding as a passenger in a plumbing truck. The driver of the truck, a 22-year-old co-worker, was killed in the accident. Dr. Daniel Burrus, an orthopedic surgeon, who treated Mr. Ammons, testified by deposition that Mr. Ammons had a 15 percent impairment to the body as a whole for his physical injuries based upon the A.M.A. Guides to the Evaluation of Permanent Impairment, 5th ed. Dr. David Gaw, an orthopedic surgeon, saw Mr. Ammons for evaluation and testified, by deposition, that he had a 24 percent impairment to the whole person for the physical injuries based upon the Guides, 5th Ed. He also testified that Mr. Ammons would have a 15 percent impairment based on the Guides, 4th Ed., which was in effect at the time Mr. Ammons reached maximum medical improvement. Dr. Gaw gave a second deposition in which he testified that Mr. Ammons would have a 25 percent physical impairment under the Manual for Orthopedic Surgeons in Evaluating Permanent Physical Impairment. (Tenn. Code Ann. _ 5-6-241 permits the use of either publication without expressing a preference.) In addition to the physical limitations, Dr. John J. Griffin, a psychiatrist, diagnosed Mr. Ammons with post-traumatic stress disorder and dysthymic disorder (depression) with symptoms of anxiety as a result of the accident. He testified, by deposition that Mr. Ammons has Class III or moderate impairment under the Guides, 5th Ed. Dr. Griffin characterized Class III moderate impairment as compatible with some but not all-useful functioning. What I would say in terms of his _ his real life is that psychiatrically he can do many of the things that he needs to, but not all of them. He wears out easier from an emotionally, not just the physical standpoint. He doesn't have the patience that he did before because he gets depressed. He can't persist at some things as well as he could before. Because he's anxious, he's likely to avoid or withdraw from certain kinds of social activities that he would have eagerly looked forward to before and would have insisted on doing. Nicholas Sieveking, Ph.D., clinical psychologist, testified in open court as a vocational expert that Mr. Ammons was "86 percent occupationally disabled, 92 percent occupationally disabled in his own category, and 1 percent occupationally disabled from his job." Both Mr. Ammons and his wife, Donna Ammons also testified that the accident had severely impacted his activities at home and at work. The trial court determined that Mr. Ammons sustained a permanent partial disability of 92 percent to the body as a whole. 2 ****** Document Outline ****** * Page_1 o a1 o a3 o Text5 o a4 o a5 o a6 o a7 o a8 o Text24 o Text12 o a_Opinion_Summary o a1 o a11 o a12 * Page_2 * Page_3 * Page_4 * Page_5 * Page_6

State of Tennessee v. Jarret A. Guy
M2002-02473-CCA-R3-CD
Authoring Judge: Presiding Judge Gary R Wade
Trial Court Judge: Judge J. Randall Wyatt, Jr.

The defendant, Jarret A. Guy, was convicted of facilitation of first degree premeditated murder, felony murder, and robbery. The trial court merged the facilitation of premeditated first degree murder conviction into the conviction for felony murder and, after finding the existence of five aggravating circumstances, the jury imposed a sentence of life without the possibility of parole. The trial court imposed a concurrent sentence of fifteen years for the robbery conviction. In this appeal, the defendant asserts that (1) the evidence is insufficient to support his convictions; (2) the trial court included erroneous definitions of "knowing" and "intentional" in its instructions to the jury; (3) the trial court erred by severing his trial from that of his co-defendant, Jacob Edward Campbell; (4) the sentence is excessive; and (5) the cumulative effect of the errors at trial require reversal. The judgments of the trial court are affirmed.

Edwin Earl Sanborn v. Carlotta Joan Sanborn
M2003-00418-COA-R3-CV
Authoring Judge: Judge Frank Clement, Jr.
Trial Court Judge: Judge Marietta M. Shipley

After twenty-five years of marriage, Father filed for divorce asserting irreconcilable differences and inappropriate marital conduct due to Mother's alleged prescription drug abuse. Father requested that he be the primary residential parent of the parties' two minor children. Mother filed an answer and counterclaim also requesting to be the primary residential parent. The trial court granted Father the divorce but designated Mother as the primary residential parent. Father appealed, asserting that the trial court erred in designating Mother as the primary residential parent and in setting the residential schedule. We affirm.

State of Tennessee v. James D. Rowland
M2003-00878-CCA-R3-CD
Authoring Judge: Judge David G. Hayes
Trial Court Judge: Judge James K. Clayton, Jr.

This appeal involves review of a certified question of law following the Defendant, James D. Rowland's, guilty plea to DUI. See Tenn. R. Crim. P. 37(b)(2)(1). Because we find that the certified question is not dispositive, we are without jurisdiction to entertain the appeal. Accordingly, the appeal is dismissed.

State of Tennessee v. Jama Elaine Penley
E2003-00820-CCA-R3-CD
Authoring Judge: Judge Norma McGee Ogle
Trial Court Judge: Judge James E. Beckner

The appellant, Jama Elaine Penley, was convicted by a Greene County jury of facilitation of first degree premeditated murder, a Class A felony. Following a sentencing hearing, the trial court sentenced the appellant as a Range I standard offender to twenty-five years in the Tennessee Department of Correction. On appeal, the appellant challenges the denial of her motion for judgment of acquittal and the sentence imposed by the trial court. Upon review of the record and the parties' briefs, we remand to correct a clerical error in the judgment but otherwise affirm the judgment of the trial court.

Patrick D. Paris v. State of Tennessee
E2003-01930-CCA-R3-PC
Authoring Judge: Judge Joe G. Riley
Trial Court Judge: Judge Stephen M. Bevil

The petitioner, Patrick D. Paris, appeals the denial of his post-conviction relief petition relating to his convictions for attempted first degree murder and especially aggravated robbery. On appeal, the petitioner contends: (1) he received ineffective assistance of counsel at trial; and (2) the trial court erred in failing to charge attempted voluntary manslaughter as a lesser-included offense of attempted first degree murder. We affirm the judgment of the post-conviction court.

State of Tennessee v. Stanley Ray Davis in re: Ray D. Driver, d/b/a Driver Bail Bonds - Dissenting
E2003-00765-CCA-R3-CD
Authoring Judge: Presiding Judge Gary R. Wade
Trial Court Judge: Judge E. Shayne Sexton

I agree that Tennessee Code Annotated section 40-11-130 governs the issue of the duration of Driver Bail Bonds' obligation. The current statute, passed in 1996, permits the trial court to extend the liability of the surety on a bail bond for the length of a sentence of probation by providing in a written order that the current bond is sufficient. In this case, the General Sessions Court noted on the judgment form that the defendant and surety were to remain liable under the original bond. Thus, Driver remained obligated under the terms of the original bond to secure the defendant's appearance at the March 11, 2002, hearing.

State of Tennessee v. Stanley Ray Davis In Re: Ray D. Driver, d/b/a Driver Bail Bonds
E2003-00765-CCA-R3-CD
Authoring Judge: Judge Joseph M. Tipton
Trial Court Judge: Judge E. Shayne Sexton

Ray D. Driver appeals the Campbell County Criminal Court’s judgment requiring his bail bonding company, Driver Bail Bonds, to pay $570.50 as a bond forfeiture because Stanley Ray Davis failed to appear at a general sessions court probation hearing. The appellant contends that T.C.A. § 40-11-138(b) relieved his company from liability under the bond because the defendant already had pled guilty and been sentenced. He also claims that his company is not liable for the defendant’s fine and costs because his company did not assume such obligations in the defendant’s bond. We hold that appellant remained obligated under the bond and that the trial court did not require him to pay the defendant’s fine and costs. The trial court is affirmed.

Michael D. Hughes v. State of Tennessee
M2003-00819-CCA-R3-PC
Authoring Judge: Judge Jerry L. Smith
Trial Court Judge: Judge Cheryl A. Blackburn

On November 30, 1992, the petitioner, Michael Douglas Hughes, entered a plea of no contest to one (1) count of aggravated rape and a plea of guilty to ten (10) counts of aggravated rape. He received an effective eighty-year sentence after a sentencing hearing. The petitioner’s sentence was affirmed in a delayed appeal. See State v. Michael Douglas Hughes, No. 01C01-9701-CR-00021, 1998 WL 301730, at *1 (Tenn. Crim. App. at Nashville, June 10, 1998), perm. to appeal denied (Tenn. Feb. 22, 1999). The petitioner sought post-conviction relief on various grounds. After the trial court denied the petition as untimely, the petitioner appealed. This Court reversed the trial court’s dismissal of the petition and remanded for an evidentiary hearing. See Hughes v. State, 77 S.W.3d 801 (Tenn. Crim. App. 2001). On remand, the trial court denied the petition after an evidentiary hearing. The petitioner then presented this appeal, arguing that the trial court erred finding that the petitioner received the effective assistance of counsel and that his guilty plea was knowingly and voluntarily entered. We affirm the dismissal of the petition.

Don Wesley McMillen v. State of Tennessee
M2003-00879-CCA-R3-PC
Authoring Judge: Judge Jerry Smith
Trial Court Judge: Judge John W. Rollins

The petitioner, Don Wesley McMillen, entered a plea of guilty to two (2) counts of attempted rape of a child in May of 1998. In exchange for the guilty pleas, the petitioner received concurrent, seventeen-year sentences at 35% as a Range II Offender. The petitioner timely filed a petition for post-conviction relief arguing that he received ineffective assistance of counsel and that his guilty plea was not knowing or voluntary because the trial court violated the provisions of State v. Mackey, 553 S.W.2d 337 (Tenn. 1977). The trial court denied the petition following an evidentiary hearing and this appeal followed. We affirm the dismissal of the post-conviction petition.

Ronald L. Johnson v. Flora Holland, Warden
M2003-01992-CCA-R3-HC
Authoring Judge: Judge Alan E. Glenn
Trial Court Judge: Judge J. Randall Wyatt, Jr.

The petitioner, Ronald L. Johnson, appeals as of right from the Davidson County Criminal Court's summary dismissal of his petition for writ of habeas corpus. He argues that his convictions for two counts of passing worthless checks are void because they were not ordered to be served consecutively to a sentence from which he had been paroled at the time of the check offenses, his parole subsequently being revoked. The habeas corpus court dismissed his petition without a hearing, and we affirm that action.

State of Tennessee v. Roxanne R. Vance
M2003-01748-CCA-R3-CD
Authoring Judge: Judge Alan E. Glenn
Trial Court Judge: Judge J. Randall Wyatt, Jr.

Following a bench trial, the defendant, Roxanne R. Vance, was convicted of DUI per se, a Class A misdemeanor, and was sentenced to eleven months, twenty-nine days, all suspended except seven days with the balance to be served on probation. In addition, her driver's license was suspended for one year and she was ordered to pay a fine of $350 and attend alcohol and drug safety school. On appeal, she argues that the trial court erred in finding that her breath alcohol test results created an irrebuttable presumption of DUI per se and that the evidence was insufficient to support her conviction. Based upon our review, we affirm the judgment of the trial court.

Patrick E. Simpson v. State of Tennessee
M2003-01750-CCA-R3-HC
Authoring Judge: Judge Alan E. Glenn
Trial Court Judge: Judge Steve R. Dozier

The petitioner, Patrick E. Simpson, pled guilty to two counts of aggravated assault and was sentenced to concurrent terms of three years to be served consecutively to his parole violation. He appeals the summary dismissal of his petition for habeas corpus relief, arguing that the trial court failed to enforce his guilty plea agreement and that his sentence has expired. Following our review, we affirm the dismissal of the petition.

Allie Jane Collins, and husband, Cle Collins, v. Dana Edwards, M.D. and Robert Hunt, M.D.
E2003-01508-COA-R3-CV
Authoring Judge: Presiding Judge Herschel P. Franks
Trial Court Judge: Judge Kindall T. Lawson

The trial judge dismissed this medical malpractice action on the ground that the statute of limitations had run. On appeal, we vacate and remand.

State of Tennesseev. Ira Ishmael Muhammed, alias Ira Ishamel Muhammed
E2003-01629-CCA-R3-CD
Authoring Judge: Judge Alan E. Glenn
Trial Court Judge: Judge Stephen M. Bevil

The defendant, Ira Ishmael Muhammed, was convicted of attempted second degree murder, a Class B felony; two counts of aggravated assault, Class C felonies; attempted voluntary manslaughter, a Class D felony; and felony reckless endangerment which the trial court, acting as thirteenth juror, dismissed at the sentencing hearing. He was sentenced as a Range I, standard offender to twelve years for the attempted second degree murder conviction, six years for each aggravated assault conviction, and four years for the attempted voluntary manslaughter conviction, with the sentences to be served consecutively, for an effective sentence of twenty-eight years. On appeal, the defendant argues: (1) the trial court erred in admitting an audiotape of telephone conversations between him and his ex-wife, one of the victims; (2) the trial court erred in not suppressing an audiotape of statements he made shortly after being shot; (3) the trial court erred in imposing consecutive sentencing; and (4) the application of consecutive sentencing is unconstitutional. Following our review, we affirm the judgments of the trial court.