State of Tennessee v. Frankie Ledbetter
M2002-02125-CCA-R3-CD
Authoring Judge: Judge Alan E. Glenn
Trial Court Judge: Judge Thomas W. Graham

The defendant was convicted of incest and rape of a child and sentenced to twenty-three years at 100% for the rape of a child conviction and eight years as a Range II, multiple offender for the incest conviction, the sentences to be served concurrently. The defendant was also fined $50,000 for the rape of a child conviction and $10,000 for the incest conviction. On appeal, the defendant presents the following claims: (1) the evidence was insufficient to support his convictions; (2) the trial court erred in determining that the six-year-old victim was competent to testify and improperly vouched for the credibility of the child-victim; (3) the trial court erred in giving the expert witness instruction to the jury; and (4) the trial court denied the defendant a fair trial by refusing to let him conduct a voir dire examination of each juror individually and out of the presence of the other jurors. Upon review, we affirm the judgments of the trial court but remand for entry of corrected judgments to reflect that the defendant was convicted of Counts 3 and 4, rather than Counts 1 and 2, of the indictment and to reflect the defendant's fines which were omitted from the judgments.

Michael D. Street v. Levy (Wildhorse) Limited Partnership
M2002-02170-COA-R3-CV
Authoring Judge: Judge William C. Koch, Jr.
Trial Court Judge: Judge Barbara N. Haynes

This appeal involves a patron at a Nashville night spot who was seriously injured by a broken glass tray left unattended on a table. In addition to the laceration on his leg, the patron fell and hit his face against the floor. The patron later filed suit against the night spot in the Circuit Court for Davidson County seeking damages not only for the laceration of his leg but also for internal derangement of his temporomandibular joint caused by his fall. The night spot conceded its negligence, and, after conducting a bench trial on the question of damages, the trial court awarded the patron $8,937.00 for his medical expenses, pain and suffering, and loss of enjoyment of life. On this appeal, the patron takes issue with the trial court's refusal to award him $1,133.00 in medical expenses and with the amount of the award for pain and suffering and loss of enjoyment of life. We have determined that the trial court lacked any basis for declining to award the patron all his medical expenses and that the evidence does not preponderate against the award for pain and suffering and loss of enjoyment of life.

Steven Anthony Perry v. Kelly Leanne Perry v. Thelma Perry
M2002-01180-COA-R3-CV
Authoring Judge: Judge Ben H. Cantrell
Trial Court Judge: Judge Clara W. Byrd

The Circuit Court of Wilson County awarded custody of a minor child to the paternal grandmother. The child's mother, to whom custody had been awarded in the divorce, asserts that the facts do not support such a drastic remedy. We affirm the judgment of the trial court.

Jennifer D. Rial (Holloway) v. Terry Rial
M2002-01750-COA-R3-CV
Authoring Judge: Judge David R. Farmer
Trial Court Judge: Judge R.E. Lee Davies

Mother petitioned the court for change of child custody. The trial court found no material change of circumstances justifying such change and dismissed the petition. We affirm.

Joseph Neil Nolen v. Amy Jay Nolen
M2002-00138-COA-R3-CV
Authoring Judge: Senior Judge Don R. Ash
Trial Court Judge: Judge Donald P. Harris

This appeal arises from the trial court’s decision to award custody of the parties’ minor children to third party custodians. After finding each parent unfit, the chancellor awarded custody of the daughter to the mother’s aunt and the son was awarded to an unrelated third party. Parenting time was established every first and second weekend with the third party custodians having the third weekend. Holiday parenting time was also included. Most importantly the siblings were reunited during these times with their parents. Both parties were ordered to split the child support obligation owed to the third parties. The father filed this appeal. We affirm.

Thomas W. Harrison, et al., v. Earl Laursen, et al.
M2000-00482-COA-R3-CV
Authoring Judge: Judge William C. Koch, Jr.
Trial Court Judge: Judge Robert L. Jones

This is the fourth appeal regarding the sale of a 128-acre farm in Giles County. The sellers originally sued the buyers in the Chancery Court for Giles County in 1991, alleging that the buyers had breached the contract by defaulting on their payments. The buyers counterclaimed, asserting that the sellers had breached the contract by failing to provide city water to the property and that the sellers had committed fraud and violated the Tennessee Consumer Protection Act. On the first appeal, this court affirmed the trial court's judgment rescinding the sale but remanded the case with directions to address the question of damages. The case was tried five more times and was appealed twice. In the sixth trial, a jury awarded the buyers $32,444.42. On this the fourth appeal, the buyers take issue with the trial court's exclusion of evidence regarding the sellers' alleged fraud, the jury's calculation of the increased value of the property, and the trial court's refusal to award them prejudgment interest. We affirm the judgment.

State of Tennessee v. Donald Wade Goff
E2002-00691-CCA-R3-CD
Authoring Judge: Judge J. Curwood Witt, Jr.
Trial Court Judge: Judge E. Shayne Sexton

The defendant appeals from jury-trial convictions for multiple counts of rape of a child, rape, incest, contributing to the delinquency of a minor, and attempted rape. In this appeal, the defendant challenges the sufficiency of the evidence related to his rape and contributing to the delinquency of a minor convictions, alleges that the trial court committed reversible error in failing to sever the charged offenses, and complains that his effective 80-year sentence is excessive. Based on our review, we find insufficient evidence to support the rape convictions, dismiss those convictions without prejudice to further prosecution on lesser-included offenses, reverse one conviction of contributing to the delinquency of a minor and dismiss that charge, and remand for modification of the defendant's sentences on the remaining convictions.

State of Tennessee v. Donald Wade Goff
E2002-00691-CCA-R3-CD
Authoring Judge: Judge J. Curwood Witt, Jr.
Trial Court Judge: Judge E. Shayne Sexton

The defendant appeals from jury-trial convictions for multiple counts of rape of a child, rape, incest, contributing to the delinquency of a minor, and attempted rape. In this appeal, the defendant challenges the sufficiency of the evidence related to his rape and contributing to the delinquency of a minor convictions, alleges that the trial court committed reversible error in failing to sever the charged offenses, and complains that his effective 80-year sentence is excessive. Based on our review, we find insufficient evidence to support the rape convictions, dismiss those convictions without prejudice to further prosecution on lesser-included offenses, reverse one conviction of contributing to the delinquency of a minor and dismiss that charge, and remand for modification of the defendant's sentences on the remaining convictions.

Patricia A. Maxwell v. State Farm Fire & Casualty
M2002-02750-WC-R3-CV
Authoring Judge: Joe C. Loser, Jr., Sp. J.
Trial Court Judge: Robert E. Corlew, III, Chancellor
In this appeal, the appellant insists the trial court erred in summarily dismissing her claim upon the finding that she was not a covered employee. As discussed below, the panel has concluded the case should be remanded for a full trial on the merits.

Romach, Inc. v. Anthony Cole
M2002-02399-WC-R3-CV
Authoring Judge: Joe C. Loser, Jr., Sp. J.
Trial Court Judge: Russ Heldman, Chancellor
In this appeal, the employee insists the trial court erred in admitting evidence of prior criminal convictions and in dismissing his claim. As discussed below, the panel has concluded the trial court committed no reversible error.

Timothy W. Ferguson v. J. H. Brooks Roofing & Sheet
M2002-01725-WC-R3-CV
Authoring Judge: Joe C. Loser, Jr., Sp. J.
Trial Court Judge: Ellen Hobbs Lyle, Chancellor
In this appeal, the employer and its insurer insist the trial court erred in its findings with respect to the employee's average weekly wage and the extent of his permanent partial disability. As discussed below, the panel has concluded the evidence fails to preponderate against the findings of the trial court.

Margie Kelly v. White Consolidated Industries, Inc.
M2002-01755-WC-R3-CV
Authoring Judge: Joe C. Loser, Jr., Sp. J.
Trial Court Judge: Carol Catalano, Chancellor
In this appeal, the employee insists the trial court erred in dismissing her claim for insufficient evidence of a causal connection between her employment and her medical condition. As discussed below, the panel has concluded the evidence fails to preponderate against the finding of the trial court.

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.