Donald Simmons vs. KC Construction and Consulting, Inc., et al.
E2009-01005-COA-R3-CV
Authoring Judge: Presiding Judge Herschel P. Franks
Trial Court Judge: Chancellor Telford E. Forgerty, Jr.

Plaintiff brought this action for breach of contract. The issues were referred to a Special Master, and the plaintiff on the hearing date, acting pro se, asked for a continuance which the Master denied. The defendant moved to confirm the Master's report and a hearing was set on the Motion. The plaintiff, again acting pro se, asked for a continuance, which was again denied. The plaintiff, acting pro se, moved to set aside the Judgment because he did not get a full ten days to file objections, and the court set aside the Judgment and set another hearing date. After hearing plaintiff's objections, the Court affirmed the Special Master's report and entered Judgment. Plaintiff, on appeal, raises the issues of whether the Trial Court erred in not sustaining objections to the Master's report, whereby the Master allowed defendant to interview witnesses and exhibits at the hearing without compliance with local rules that require the parties to exchange names of witnesses in advance of trial, and whether the Trial Court erred in denying plaintiff's motion for continuance. We affirm the Judgment of the Trial Court.

State of Tennessee ex rel., Carla S. (Nelson) Rickard v. Douglas Taylor Holt
M2009-01331-COA-R3-CV
Authoring Judge: Judge J. Steven Stafford
Trial Court Judge: C. L. Rogers

State of Tennessee v. Arealie Boyd
W2009-00762-CCA-R3-CD
Authoring Judge: Judge J. C. McLin
Trial Court Judge: Judge James M. Lammey

The defendant, Arealie Boyd, pled guilty to forgery over $1,000, a Class D felony, on March 30, 2009. After a hearing, the trial court sentenced her to a two-year sentence in the Shelby County Correctional Center, suspended all but thirty days of the sentence, and placed her on probation for six years. On appeal, the defendant challenges the length and manner of her sentence. Specifically, she contends that the trial court should have sentenced her as an especially mitigated offender to either full probation or judicial diversion. Additionally, the defendant contends that the trial court erred in allowing hearsay testimony at the sentencing hearing. Following our review, we affirm the judgment of the trial court.

Stanley Harvill v. State of Tennessee
W2009-00594-CCA-R3-HC
Authoring Judge: Judge J. C. McLin
Trial Court Judge: Judge Joseph H. Walker, III

The petitioner, Stanley Harvill, appeals the circuit c 1 ourt’s order summarily dismissing his petition for writ of habeas corpus. Following our review of the record and the applicable law, we affirm the court’s order.

In Re: Tristan J.K.S.
E2009-00703-COA-R3-JV
Authoring Judge: Presiding Judge Herschel P. Franks
Trial Court Judge: Judge Jeffrey D. Rader

The appellee filed a Petition for Contempt against respondent for failing to pay child support. The Trial Court found respondent in contempt, entered Judgment for back child support, but later purged the Judgment for incarceration. The respondent has appealed, arguing that the Trial Court erred in finding him in civil contempt, and it was not appropriate to incarcerate him to enforce the Court's orders. On appeal, we affirm the Judgment of the Trial Court.

Frank Garrett, et al. v. City of Memphis et al.
W2009-01506-COA-R3-CV
Authoring Judge: Judge David R. Farmer
Trial Court Judge: Chancellor Walter L. Evans

This appeal concerns the discretion of the Memphis Police Department to fill vacant civil
service positions with temporary, “acting” personnel prior to the expiration of an active
promotion roster. The trial court concluded the Memphis City Charter does not mandate
permanent promotion of the next eligible employee from an active promotion roster simply
because a vacancy exists. The court further concluded that no charter provision or city
ordinance prohibits the use of acting appointments; rather, the proof showed that the use of
officers in an acting capacity is a longstanding policy within the police department and every
other division of city government. As a result, the court held that the department did not
violate civil service laws when it declined to permanently promote the plaintiffs. Finding no
error in the decision below, we affirm.

State of Tennessee v. Oscar Joe Garcia
W2009-00592-CCA-R3-CD
Authoring Judge: Judge Alan E. Glenn
Trial Court Judge: Judge Roy B. Morgan, Jr.

Following a jury trial, the defendant, Oscar Joe Garcia, was convicted of four counts of facilitation of attempted second degree murder, four counts of facilitation of aggravated assault, one count of felony reckless endangerment, and one count of possession of a weapon with intent to employ during the commission of an offense. The trial court merged the facilitation of aggravated assault convictions into the facilitation of attempted second degree murder convictions and sentenced the defendant, as a Range I standard offender, to six years for each of the facilitation convictions, two years for the felony reckless endangerment conviction, and eleven months, twenty-nine days for the weapon conviction. The court ordered the six-year sentences to be served consecutively and the remaining sentences to be served concurrently, for a total effective sentence of twenty-four years. On appeal, the defendant argues that the trial court erred in imposing consecutive sentences and in denying his motion to correct and/or reduce his sentence. Based upon our review, we affirm the judgments of the trial court.

State of Tennessee v. D'Angelo Barnes and Monterrio Watson
W2009-00081-CCA-R3-CD
Authoring Judge: Judge Jerry Smith
Trial Court Judge: Judge Chris B. Craft

Appellants, Monterrio Watson and D’Angelo Barnes, were both convicted by a Shelby County Jury of two counts of aggravated robbery. Appellants were both juveniles at the time of the offenses but were transferred to criminal court for trial as adults. Appellant Barnes was sentenced by the trial court to serve ten years for each conviction. The sentences were ordered to be served concurrently. Appellant Watson was ordered to serve eight years and six months for each conviction, to be served concurrently. Both Appellants filed timely motions for new trial. The trial court denied both motions and these appeals ensued. The appeals were consolidated by this Court. On appeal, the following issues are presented for our review: (1) whether the evidence is sufficient to support the convictions; and (2) whether the trial court properly denied Appellant Watson’s request for an acceptance hearing in criminal court after the transfer from juvenile court. After a review of the record, we determine that Appellant Watson waived the issue related to the transfer from juvenile court for failing to provide an adequate record on appeal. Moreover, Appellant Watson failed to file a motion for an acceptance hearing within ten days of the transfer order as required by Tennessee Code Annotated section 37-1-159(d). Further, we determine that the evidence was sufficient to support the convictions for aggravated robbery. Accordingly, the judgments of the trial court are affirmed.
 

In Re: The Estate of Mary Jane McLister Anderson Owen, Deceased
W2009-01531-COA-R3-CV
Authoring Judge: Judge David R. Farmer
Trial Court Judge: Chancelor William C. Cole

This is a will construction case. The decedent died testate in July 2008. The personal
representative of the decedent’s estate filed this action to construe provisions of the
decedent’s will concerning the control of specifically devised farm property. The chancery
court determined that the decedent intended for the property to remain subject to the control
of her estate pending administration. Because the unambiguous language of the will
pointedly excludes specifically devised real property from the control of the personal
representative, we reverse and remand.

State of Tennessee v. Preston Rucker
W2009-01650-CCA-R3-CD
Authoring Judge: Judge Alan E. Glenn
Trial Court Judge: Judge James C. Beasley, Jr.

The defendant, Preston Rucker, was convicted of especially aggravated robbery and especially aggravated kidnapping and sentenced, respectively, to concurrent sentences of twenty-four years and twenty years. On appeal, he argues that the evidence was insufficient to support the convictions, that the trial court erred in concluding that a police report was not admissible as an exception to the hearsay rule, and that the trial court imposed an excessive sentence. Following our review, we affirm the judgments of the trial court.

State of Tennessee v. Jaroz Dantae Thomas
W2009-00846-CCA-R3-CD
Authoring Judge: Judge J. C. McLin
Trial Court Judge: Judge Roger A. Page

A jury convicted the defendant, Jaroz Dantae Thomas, of underage driving while impaired, a Class A misdemeanor. The trial court sentenced him to 11 months, 29 days of probation, supervised by Community Corrections; a $250 fine; suspension of his driver’s license for one year; and twenty-four hours of community service. On appeal, the defendant challenges his sentence. Following our review of the record, the parties’ briefs, and the applicable law, we affirm the judgment of the trial court but modify the defendant’s sentence to strike the 11 months, 29 days of probation. The case is remanded for entry of a corrected judgment consistent with this opinion.

Rain Thomas Chesher v. State of Tennessee
W2009-01261-CCA-R3-PC
Authoring Judge: Judge J. C. McLin
Trial Court Judge: Judge C. Creed McGinley

The petitioner, Rain Thomas Chesher, appeals the Henry County Circuit Court’s dismissal of his petition for post-conviction relief. The state has filed a motion requesting that this court affirm the circuit court’s judgment pursuant to Rule 20 of the Tennessee Court of Criminal Appeals. We conclude that the state’s motion is meritorious. Accordingly, we grant the state’s motion and affirm the judgment

State of Tennessee v. Timothy Dewayne Williams
W2008-02730-CCA-R3-CD
Authoring Judge: Judge D. Kelly Thomas, Jr.
Trial Court Judge: Judge Joseph H. Walker, III

The Defendant, Timothy Dewayne Williams, was convicted by a Tipton County Criminal Court jury of possession of a Schedule II controlled substance with intent to deliver, a Class B felony; evading arrest in a motor vehicle, a Class E felony; evading arrest, a Class A misdemeanor; and driving while his license was suspended, a Class B misdemeanor. In this appeal as of right, the Defendant argues that the evidence was insufficient to support his convictions. After reviewing the record, we affirm the judgments of the trial court as modified.

Terrie Lynn Hall Hankins v. James Michael Hankins
W2009-00240-COA-R3-CV
Authoring Judge: Judge David R. Farmer
Trial Court Judge: Judge John R. McCarroll, Jr.

This appeal arises from a divorce action. Husband appeals the trial court’s classification and
division of property, the award of alimony in futuro to Wife, and the award to Wife of a
portion of her attorney’s fees. We affirm.

Breath of Life Christian Church v. Travelers Insurance Company
W2009-00284-COA-R3-CV
Authoring Judge: Judge David R. Farmer
Trial Court Judge: Chancellor Arnold B. Goldin

The trial court awarded summary judgment to Defendant surety in this breach of contract action. We affirm.

State of Tennessee v. Kevin Swift
W2007-00673-SC-R11-CD
Authoring Judge: Chief Justice Janice M. Holder
Trial Court Judge: Judge James M. Lammey

We granted appeal in this case to clarify whether the location of the use of violence or fear is relevant in distinguishing theft from robbery. We hold that the temporal proximity between the taking of property and the use of violence or fear is the sole relevant factor. Applying this analysis to the facts of this case, we conclude that the evidence is insufficient to support the defendant’s conviction for aggravated robbery and therefore reverse the judgment of the Court of Criminal Appeals. The evidence, however, supports a conviction for the lesser included offense of aggravated assault. We therefore vacate the defendant’s conviction for aggravated robbery, modify the conviction to aggravated assault, and remand this case to the trial court to conduct a new sentencing hearing.

Kenneth L. Anderson v. State of Tennessee
W2009-02221-CCA-R3-PC
Authoring Judge: Judge Alan E. Glenn
Trial Court Judge: Judge R. Lee Moore Jr.

The petitioner, Kenneth L. Anderson, appeals the denial of his petition for post-conviction relief, arguing that he received the ineffective assistance of elbow counsel. After review, we affirm the post-conviction court’s denial of post-conviction relief.

State of Tennessee v. Donald Lockhart - Concurring
E2008-02046-CCA-R3-CD
Authoring Judge: Judge James Curwood Witt, Jr.
Trial Court Judge: Judge E. Eugene Eblen

Although concurring in the majority opinion, I express concern about whether
the certified question is dispositive of the case. Specifically, I question whether the stop of the defendant’s vehicle yielded any evidence that was necessary to the State’s proving the defendant guilty of DUI.

State of Tennessee v. Donald Lockhart
E2008-02046-CCA-R3-CD
Authoring Judge: Judge Norma McGee Ogle
Trial Court Judge: Judge E. Eugene Eblen

Appellant Donald Lockhart was indicted by a Loudon County Grand Jury for driving under the influence in violation of Tennessee Code Annotated section 55-10-401. The trial court denied a motion to suppress evidence derived from the stop of Appellant’s vehicle. Thereafter, Appellant pled guilty to the charge, but under Tennessee Rule of Criminal Procedure 37(b) preserved the following issue for appeal: “Whether the trial judge erred by failing to suppress evidence gathered pursuant to a traffic stop of the [Appellant] that was conducted by the Lenoir City Police Department and which the [Appellant] alleged was conducted in the absence of a valid warrant, probable cause or reasonable suspicion, all in violation of [Appellant’s] constitutional rights to be free of unreasonable searches and seizures?” On appeal, he argues that the citizen informant’s tip, combined with an officer’s determination that Appellant was impaired during a welfare check minutes before the stop, was insufficient to establish reasonable suspicion. Upon review, we affirm.

State of Tennessee v. Terry Wayne Hawkins - Concurring
E2009-00044-CCA-R3-CD
Authoring Judge: Judge James Curwood Witt, Jr.
Trial Court Judge: Judge Amy A. Reedy

I concur in the majority’s conclusion that a trial court is free to set any sentence
within the appropriate sentencing range “regardless of the presence or absence of mitigating and enhancement factors.” I write separately, however, to emphasize that the 2005 amendments to the Sentencing Act, when read in conjunction with those provisions not affected by the amendments and the Sentencing Commission Comments, are in and of themselves open to two interpretations: (1) that, although the enhancement and mitigating factors were rendered advisory, a trial court still has no discretion to enhance a defendant’s
sentence without finding applicable one of the enhancement factors enumerated in Code section 40-35-114 and (2) that a trial court is free to choose any sentence within the appropriate range so long as the imposition of the sentence complies with the principles and purposes of the Sentencing Act. The latter was first alluded to by our supreme court in State v. Carter, 254 S.W.3d 355 (2008). For the reasons set forth below, it is my view that latter interpretation is constitutionally required.

State of Tennessee v. Terry Wayne Hawkins
E2009-00044-CCA-R3-CD
Authoring Judge: Judge D. Kelly Thomas, Jr.
Trial Court Judge: Amy A. Reedy

The Defendant, Terry Wayne Hawkins, was convicted by a Monroe County jury of aggravated sexual battery and was sentenced to eleven years as a Range I, violent offender. In this appeal as of right, he contends that the trial court imposed an excessive sentence. Following our review, we affirm the judgment of the trial court.

Eduardo SantAnder, Plaintiff-Appellee, American Home Assurance Co., Intervenor-Appellant, v. Oscar R. Lopez, Defendant
M2009-01210-COA-R3-CV
Authoring Judge: Presiding Judge Herschel P. Franks
Trial Court Judge: Judge J. Mark Rogers

Plaintiff was involved in a motor vehicle accident during the course and scope of his employment. Plaintiff brought a tort action against the driver of the other vehicle, and subsequently entered into a settlement with his employer and the workers' compensation carrier. Plaintiff then reached a settlement in the tort case, but before Judgment was entered his employer filed a Petition to Intervene in that case, asserting a subrogation lien on the tort recovery. The Trial Judge refused to allow intervention on the grounds that the Petition to Intervene was not timely filed. On appeal, we reverse and remand.

State of Tennessee v. Antonio Hill
W2009-00280-CCA-R3-CD
Authoring Judge: Judge John Everett Williams
Trial Court Judge: Judge Chris B. Craft

The defendant, Antonio Hill, was convicted by a Shelby County jury of robbery, a Class C felony, and attempted robbery, a Class D felony, as lesser included offenses of the indicted offenses of aggravated robbery and attempted aggravated robbery. The trial court subsequently sentenced the defendant to concurrent sentences of five years and three and one-half years for the respective convictions. On appeal, the defendant raises the single issue of whether his sentence is excessive. Specifically, he contends that the trial court erred in considering the enhancement factor that the defendant possessed or employed a firearm during the commission of the offenses based upon the jury’s rejection of the greater offenses, which included possession of a firearm as elements of the offense. Following review of the record and applicable sentencing law, we affirm the sentences as imposed.

Cory Myers v. State of Tennessee
W2009-00814-CCA-R3-HC
Authoring Judge: Judge Camille R. McMullen
Trial Court Judge: Judge Donald P. Harris

The Petitioner, Cory Myers, appeals pro se from the Circuit Court 1 for Gibson County’s dismissal of his petition for writ of habeas corpus. The judgment form in this case shows that Myers originally pled guilty to first degree murder for which he received a life sentence. However, in this appeal, Myers argues that the trial court lacked jurisdiction to sentence him because another form, entitled “Plea of Guilty and Waivers of Jury Trial and Appeal” (hereinafter “plea agreement form”), shows that he pled guilty to the offense of “felony homicide.” Based on the plea agreement form, Myers claims his conviction is void because “felony homicide” does not exist under Tennessee law. Upon review, we affirm the judgment dismissing the petition for writ of habeas corpus.

Deborah Southern Antrican vs. Alvin Michael Antrican
E2009-01028-COA-R3-CV
Authoring Judge: Judge David Michael Swiney
Trial Court Judge: Chancellor E.G. Moody

This is a divorce case following a long-term marriage. Following a trial, the Trial Court classified the property as separate or marital, divided the marital property, awarded Wife $30,000 as her share of farm income that was earned after the parties separated, and awarded Wife alimony in futuro of $800 per month and alimony in solido of $20,000 for partial payment of her attorney fees. Both parties appeal raising various issues. We modify the award of $30,000 in farm income to an award of $2,184. We also modify the award of alimony in futuro to be $400 per month, with this modification to become effective sixty days from the date our judgment is entered. In all other respects, the judgment of the Trial Court is affirmed.