Ernest L. Atkinson v. Signage, Inc.,
M2002-01491-WC-R3-CV
Authoring Judge: Joe C. Loser, Jr., Sp. J.
Trial Court Judge: Robert E. Lee Davies, Chancellor
In this appeal, the employer and its insurer insist the trial court erred in awarding permanent total disability benefits where the injured employee has returned to work for the same employer at a wage equal to or greater than his pre-injury wage and is working forty hours per week. The employer and its insurer also insist the trial court erred in commuting a portion of the award to a lump sum. As discussed below, the panel has concluded the trial court committed no reversible error.

Gerald W. McCullough v. State of Tennessee
M2002-01768-CCA-R9-CD
Authoring Judge: Judge David H. Welles
Trial Court Judge: Judge W. Charles Lee

The Defendant, Gerald W. McCullough, was convicted of aggravated sexual battery. This Court affirmed the Defendant's conviction on direct appeal. See State v. Gerald W. McCullough, No. M1999-01525-CCA-R3-CD, 2000 WL 1246432, at *1 (Tenn. Crim. App., Nashville, Aug. 18, 2000). The Defendant was represented at trial by the Public Defender's Office. On direct appeal, the Defendant was represented by Nashville attorney John E. Herbison. After the Defendant's conviction was affirmed on direct appeal, the Defendant filed for post-conviction relief. In this effort, the Defendant was again represented by John E. Herbison. The trial court, on its own motion, conducted an evidentiary hearing with respect to the conflict of interest inherent in Mr. Herbison's representation of the Defendant on post-conviction following his representation of the Defendant on direct appeal. Following the hearing, the trial court ordered Mr. Herbison removed from his representation of the Defendant on post-conviction, and further ordered Mr. Herbison to return the entire retainer fee he had been paid in conjunction with the post-conviction proceeding. The trial court's ruling is now before this Court pursuant to an interlocutory appeal. See Tenn. R. App. P. 9. We affirm the trial court's order removing Mr. Herbison from further representation of the Defendant in this case. We remand the trial court's ruling regarding the refund of Mr. Herbison's fee for further proceedings.

State of Tennessee v. Anthony Nathaniel Guerard
M2002-01046-CCA-R3-CD
Authoring Judge: Judge Jerry L. Smith
Trial Court Judge: Judge John H. Gasaway, III

In 1999, the Defendant was placed on judicial diversion for four years after pleading guilty to aggravated assault. In 2001, while the Defendant was on probation for aggravated assault, the Montgomery County Grand Jury indicted the Defendant for attempted first degree murder, attempted robbery, and aggravated kidnapping. In 2002, pursuant to a plea agreement, the Defendant pled guilty to reckless endangerment and nolo contendere to attempted robbery. Following a sentencing hearing, the trial court sentenced the Defendant to eleven months and twenty-nine days incarceration for reckless endangerment and to three years in the Tennessee Department of Correction for attempted robbery. The trial court also revoked the Defendant's judicial diversion probation for the 1999 aggravated assault charge, entered a judgment of conviction, and imposed a sentence of four years in the Tennessee Department of Correction. It ordered that the sentences for reckless endangerment and attempted robbery be served concurrently to each other but consecutive to the sentence for aggravated assault, resulting in an effective sentence of seven years. In this appeal as of right, the Defendant argues that his sentences are excessive and that the trial court erred by denying alternative sentencing. We conclude that the Defendant's sentences are proper and thus affirm the judgment of the trial court.

State of Tennessee v. Sanders Caldwell
W2002-01595-CCA-R3-CD
Authoring Judge: Judge Robert W. Wedemeyer
Trial Court Judge: Judge Joseph B. Dailey

The Appellant was convicted of burglary of a building and vandalism in the Criminal Court for Shelby County, and was sentenced to a total of seven years of confinement by the trial court. The sole issue the Appellant raises on appeal is whether sufficient evidence was presented at trial to convict him of the charged offenses of burglary and vandalism. Finding no error, we affirm the judgments of the trial court.

State of Tennessee v. Quinten M. Turnage
W2002-02269-CCA-R3-CD
Authoring Judge: Judge Robert W. Wedemeyer
Trial Court Judge: Judge Joseph B. Dailey

A Shelby County jury convicted the Defendant of escape, and the Defendant now appeals his conviction. The sole issue on appeal is the sufficiency of the convicting evidence. Concluding that the evidence is legally sufficient to support the Defendant’s conviction, we affirm the conviction.

State of Tennessee v. Leslie Thurman Mitchell
E2002-01537-CCA-R3-CD
Authoring Judge: Judge James Curwood Witt, Jr.
Trial Court Judge: Judge Mary Beth Leibowitz

The State of Tennessee appeals the Knox County Criminal Court’s suppression and exclusion of evidence in the second-degree murder prosecution of Leslie Thurman Mitchell. The evidence consists, first, of the defendant’s statements to law enforcement officers pertaining to the homicide following his arrest for an unrelated matter, and second, of the defendant’s wife’s testimony regarding marital communication pertaining to the alleged crime. We granted the state’s application for interlocutory appeal, see Tenn. R. App. P. 9, and upon review, we reverse the lower court’s rulings.

State of Tennessee v. James Walter Grooms
E2002-02013-CCA-R3-CD
Authoring Judge: Judge Jerry L. Smith
Trial Court Judge: Judge James Edward Beckner

On March 4, 2002, the Hamblen County Grand Jury returned an indictment against the appellant, James Walter Grooms, charging him with driving with a blood alcohol concentration greater that .10% and child endangerment. After a bench trial the appellant was found guilty as charged, and a sentence was imposed of 11 months and 29 days for each count to be served concurrently. In addition, the trial court ordered the appellant driver's license to be suspended for one year, and he was ordered to attend DUI school. The appellant now challenges the lawfulness of his warrantless arrest and the sufficiency of the evidence supporting his driving under the influence conviction. After a review of the record we affirm the judgment of the trial court.

Janet Hilman v. Randolph Hilman
M2002-00898-COA-R3-CV
Authoring Judge: Judge Don R. Ash
Trial Court Judge: Muriel Robinson
This appeal arises from the trial court's denial of a contempt petition brought to enforce the provision in a marital dissolution agreement regarding the father's obligation to pay one-half of child's uncovered medical expenses. The trial court found the petitioning mother failed to present sufficient evidence of which expenses were medical and covered by the marital dissolution agreement and the petitioning mother acted unilaterally in incurring these extraordinary charges for treatment of the minor child. We affirm the trial court.

Tina Gray v. Glen Gray
M2002-01365-COA-R3-CV
Authoring Judge: Judge Ben H. Cantrell
Trial Court Judge: J. S. Daniel
The trial court granted the parties a divorce, classified the husband's auto salvage business as his separate property, and divided the property the parties had acquired during their marriage. On appeal, the wife contends that the trial court erred by not considering the auto salvage business to be marital property, and by ordering a property division that was inequitable as to her. We affirm the trial court.

James P. Hyde v. Howard Carlton, Warden, and State of Tennessee
E2003-00599-CCA-R3-PC
Authoring Judge: Presiding Judge Gary R Wade
Trial Court Judge: Judge Robert E. Cupp

The petitioner, James P. Hyde, appeals the trial court's denial of his petition for writ of habeas corpus. Because the petitioner has failed to state a claim for habeas corpus relief, the state's motion is granted and the judgment of the trial court is affirmed.

Vance E. Shelton v. State of Tennessee
E2002-01437-CCA-R3-PC
Authoring Judge: Judge David G. Hayes
Trial Court Judge: Judge James E. Beckner

The Appellant, Vance E. Shelton, appeals the dismissal of his petition for post-conviction relief by the Greene County Criminal Court. In 1996, Shelton was convicted of one count of rape of a child and one court of aggravated sexual battery. Shelton collaterally attacks these convictions arguing that he received ineffective assistance of counsel, which resulted in prejudice to his defense. After review, we conclude that Shelton was denied his right to the effective assistance of counsel, as guaranteed by the Sixth Amendment, with respect to his conviction for aggravated sexual battery. With regard to his conviction for rape of a child, we conclude no relief is warranted. Accordingly, Shelton's conviction and sentence for aggravated sexual battery is vacated and remanded for a new trial.

Rebecca Lew vs. Ira Lew
E2002-01811-COA-R3-CV
Authoring Judge: Judge Houston M. Goddard
Trial Court Judge: Billy Joe White
In this divorce case, Ira Eugene Lew ("Husband") appeals the Trial Court's judgment declaring the parties divorced on the ground of irreconcilable differences, and approving and incorporating the parties' marital dissolution agreement ("MDA") in its order. Husband argues that the Court was without power to enter its judgment because he had withdrawn his consent and agreement to the MDA prior to the Court's entry of final judgment. The Trial Court found that Husband could not withdraw his consent to the MDA because, as a consequence of the unusual procedural posture of the this case, the parties had already executed, agreed to, and signed the MDA and presented it to the Trial Court, which approved it and incorporated it into a previous order. We affirm the judgment of the Trial Court.

State of Tennessee v. Steven Shelton
E2002-01720-CCA- R3-CD
Authoring Judge: Judge Norma McGee Ogle
Trial Court Judge: Judge James E. Beckner

The appellant, Steven Shelton, was convicted by a jury in the Greene County Criminal Court of theft of property valued $1000 or more but less than $10,000, a Class D felony. The trial court sentenced the appellant as a Range I standard offender to two years six months confinement in the Greene County Jail. On appeal, the appellant argues that the evidence was insufficient to support his conviction and that the trial court erred in denying alternative sentencing. Upon review of the record and the parties’ briefs, we affirm the judgment of the trial court. However, we remand to the trial court for the correction of the judgment of conviction to reflect the fine imposed by the jury.

State of Tennessee v. Mikel U. Primm
M2001-02447-CCA-R3-CD
Authoring Judge: Judge Jerry L. Smith
Trial Court Judge: Judge Robert E. Burch

A Dickson County jury convicted the defendant, Mikel U. Primm, of possession of drug paraphernalia and failure to appear. The trial court sentenced the defendant to serve eleven months and twenty-nine days for his possession of drug paraphernalia conviction and two years for failure to appear conviction, for which he was classified as a Range II multiple offender. The trial court ordered the defendant to serve these sentences concurrently. The defendant now brings this direct appeal challenging his convictions and his sentence, alleging that (1) the evidence introduced at trial is insufficient to support his two convictions, (2) the trial court erroneously denied, within the hearing of the prospective jurors, the defense motion for a continuance, and (3) that the trial court improperly sentenced him by failing to apply several relevant mitigating factors. After a thorough review of the record, we find that none of the defendant's allegations merit relief and therefore affirm the judgments of the trial court.

James Clark Blanton, III v. State of Tennessee
M2001-02421-CCA-R3-PC
Authoring Judge: Judge Jerry L. Smith
Trial Court Judge: Judge Steve R. Dozier

A Davidson County grand jury indicted the petitioner, James Clark Blanton, III, of two counts of especially aggravated robbery, two counts of especially aggravated kidnapping, and one count of coercion of a witness. The petitioner pled guilty to two counts of especially aggravated robbery with an agreement that he would serve two concurrent sentences of fifteen years each at 100%. The petitioner filed a post-conviction petition alleging that he received ineffective assistance of counsel. The post-conviction court held an evidentiary hearing to determine the merits of the petitioner's claim and subsequently denied the petition in a written order. The petitioner now appeals that denial. After reviewing the petitioner's claims and the evidence presented at the post-conviction hearing, we find that none of his allegations merit relief.

State of Tennessee v. Johnny D. Roberts
M2002-02996-CCA-R3-CD
Authoring Judge: Judge Joseph M. Tipton
Trial Court Judge: Judge Cheryl A. Blackburn

The defendant, Johnny D. Roberts, was convicted by a Davidson County Criminal Court jury of aggravated rape and aggravated sexual battery. The trial court merged the defendant's convictions into one conviction for aggravated rape and sentenced him as a Range I, violent offender to twenty-five years in the Department of Correction. The defendant appeals, claiming that (1) the evidence is insufficient to support his convictions, (2) the trial court erroneously admitted into evidence a tape recording and transcript of the victim's 9-1-1 telephone call to the police, (3) the trial court erred by failing to declare a mistrial after the prosecutor commented on the defendant's failure to testify, and (4) the trial court erred by refusing to apply a mitigating factor in sentencing him. We affirm the judgment of conviction.

Betty Jensen v. Tracy City
M2002-02019-COA-R3-CV
Authoring Judge: Judge Ben H. Cantrell
Trial Court Judge: Buddy D. Perry
This is an action under the Governmental Tort Liability Act against Tracy City for an accident allegedly caused by the accumulation of gravel on a city street at the bottom of a steep hill. The Circuit Court of Grundy County granted the City summary judgment. We reverse and remand for further proceedings.

Cheryl Anderson v. Carmeletha Mason
M2002-01080-COA-R3-CV
Authoring Judge: Judge William B. Cain
Trial Court Judge: Carol L. Soloman
Defendant/Appellant, Carmeletha Mason, appeals from a jury verdict and judgment against her in this wrongful death action. She was the owner of a vehicle driven by her daughter, which was involved in an accident resulting in the death of David Anderson, husband of the Plaintiff/Appellee, Cheryl Anderson. Appellant asserts that her vehicle was being operated without her permission and that she was not guilty of an act of negligent entrustment. She also asserts that the trial court erred in failing to direct a verdict in her favor. We affirm the action of the trial court.

State v. Delinquent Taxpayers
M2002-01656-COA-R3-CV
Authoring Judge: Judge William B. Cain
Trial Court Judge: Ellen Hobbs Lyle
In this cause, a purchaser at tax sale appeals the order of the trial court voiding its prior default judgment against the delinquent taxpayer, and voiding the conveyance of that property to the purchaser. The delinquent tax notices, as well as the notice of sale, were issued to an unintelligible address, despite the presence of the taxpayer's proper address on the special warranty deed retained in the Metropolitan Government's Assessor's Office. Upon the government's motion, notice was then attempted by publication. After the trial court had entered the decree of sale and judgment affirming sale, and after expiration of the period for the exercise of the equitable right of redemption had otherwise lapsed, the delinquent taxpayer attempted to redeem the property. The tax sale purchaser, James Brown, contested the redemption. The trial court, considering the taxpayer's Motion to Void Tax Sale as a Rule 60.02 Motion to Set Aside a Default Judgment, voided the sale. For the reasons and under the authority cited herein we affirm.

State of Tennessee v. Harold Russell Gregory
M2002-01461-CCA-R3-CD
Authoring Judge: Judge Joseph M. Tipton
Trial Court Judge: Judge Frank G. Clement, Jr.

The defendant, Harold Russell Gregory, was convicted in the Davidson County Criminal Court of driving under the influence (DUI), second offense, a Class A misdemeanor. The trial court sentenced him to eleven months, twenty-nine days to be served as forty-five days, day for day, in the county jail and the remainder to be served on probation. In addition, the trial court suspended the defendant's driving privileges for two years, ordered that he participate in an alcohol evaluation and treatment program, and imposed a six hundred dollar fine. The defendant appeals, claiming (1) that the evidence is insufficient to support his conviction; (2) that the trial court should have granted his motion to suppress evidence that was obtained pursuant to an illegal stop; (3) that his request for an attorney was not an express refusal to take a breathalyzer test; and (4) that the trial court erred by refusing to allow a defense witness to testify. We affirm the trial court's actions.

Geoffrey Gilmore v. Marsha Mangrum
M2002-02171-COA-R3-CV
Authoring Judge: Judge William B. Cain
Trial Court Judge: Thomas E. Gray
This case involves an issue of change of primary residential custody of a minor child from one parent to another. Mother currently has primary residential custody. The child at issue was sexually molested by his step-brother at his Mother's residence. Father filed a petition requesting custody be changed from Mother to him. Although the trial judge found a material change of circumstances, he did not find a change of custody to be in the child's best interest and denied Father's Petition. We affirm the trial court's decision.

State of Tennessee v. Charlene Denise Franks
W2002-02067-CCA-R3-CD
Authoring Judge: Presiding Judge Gary R Wade
Trial Court Judge: Judge C. Creed McGinley

The defendant, Charlene Denise Franks, entered pleas of guilt to two counts of aggravated burglary. The trial court imposed Range I concurrent sentences of three years on each offense and granted supervised probation. A probation violation warrant resulted in a revocation. The issue on appeal is whether the trial court abused its discretion. The judgment is affirmed.

Samuel Pegues v. State of Tennessee
W2002-01296-CCA-R3-PC
Authoring Judge: Judge David G. Hayes
Trial Court Judge: Judge Roy Morgan

The Appellant, Samuel Pegues, appeals the Madison County Circuit Court's dismissal of his petition for post-conviction relief. Pegues was convicted of second degree murder and received a sentence of twenty-one and one-half years. On appeal, the single issue presented for our review is whether Pegues was denied the effective assistance of counsel. Following a review of the record, we affirm the judgment of the post-conviction court dismissing the petition.

State of Tennessee v. Brenda F. Jones
W2002-00751-CCA-R3-CD
Authoring Judge: Judge David G. Hayes
Trial Court Judge: Judge Donald H. Allen

The Appellant, Brenda F. Jones, was indicted by a Madison County Grand Jury for the offenses of vehicular homicide and driving under the influence of an intoxicant (DUI). Following a jury trial, the Appellant was convicted of DUI but acquitted of vehicular homicide. For the DUI conviction, the trial court sentenced Jones to eleven months, twenty-nine days, with sixty days confinement. On appeal, Jones argues that a term of sixty days confinement is excessive because (1) the trial court's sentence reflects consideration of conduct for which Jones was exonerated, and (2) the trial court improperly applied enhancement factors and failed to apply relevant mitigating factors. After review of the record, we find merit to both issues. Accordingly, we modify Jones' sentence to eleven months, twenty-nine days with service of twenty days confinement.

State of Tennessee v. Patrick Deshun Paris, alias Patrick Deshon Parris
E2002-01514-CCA-R3-CD
Authoring Judge: Judge John Everett Williams
Trial Court Judge: Judge Rebecca J. Stern

A jury found the defendant guilty of first degree premeditated murder, first degree felony murder, and especially aggravated robbery. The two first degree murder convictions merged, and the jury sentenced the defendant to life without the possibility of parole. The trial court sentenced the defendant to twenty-four years for especially aggravated robbery, to run concurrently with his previous sentence for abuse of a corpse. The defendant argues that the trial court erred in failing to suppress an incriminating statement he made on December 2, 1998, that the jury charge regarding criminal responsibility was in error and that his sentencing was erroneous. We affirm the judgments of the trial court.