State of Tennessee v. Timothy Tyrone Sanders
M2001-02128-CCA-R3-CD
Authoring Judge: Judge Norma McGee Ogle
Trial Court Judge: Judge W. Charles Lee

The appellant, Timothy Tyrone Sanders, was convicted in the Bedford County Circuit Court of one count of possession of .5 grams or more of cocaine with intent to sell. On direct appeal, this court reversed the appellant's conviction because the trial court failed to properly charge the jury on the lesser-included offense of simple possession, and we remanded the case for retrial. State v. Timothy Tyrone Sanders, No. M2000-00603-CCA-R3-CD, 2001 Tenn. Crim. App. LEXIS 38, at **13-14 (Nashville, January 18, 2001). Subsequently, the appellant was once again convicted of possession of cocaine with intent to sell. The trial court sentenced the appellant as a Range II offender to seventeen years and six months incarceration in the Tennessee Department of Correction. In the instant appeal, the appellant raises the following issues: (1) whether the evidence is sufficient to sustain his conviction, and (2) whether the trial court erred in determining the length of his sentence. Upon review of the record and the parties' briefs, we affirm the judgment of the trial court.

State of Tennessee v. James Robert Lawson
E2001-01415-CCA-R3-CD
Authoring Judge: Judge Robert W. Wedemeyer
Trial Court Judge: Judge R. Jerry Beck

The Defendant pled guilty to one count of child abuse, a Class D felony. Following a hearing, the trial court denied judicial diversion. The trial court sentenced the Defendant as a Range I, standard offender to two years to be served on intensive probation. The Defendant now appeals, arguing that the trial court erred by denying him judicial diversion and by imposing as a condition of his probation that he not reside in the same household with children of "tender years." Finding no error, we affirm the judgment of the trial court.

State of Tennessee v. Derrick Wayne Kembel
E2001-02087-CCA-R3-CD
Authoring Judge: Judge Norma McGee Ogle
Trial Court Judge: Judge D. Kelly Thomas, Jr.
The appellant, Derrick Wayne Kembel, entered guilty pleas in the Blount County Circuit Court to seven counts of theft and was granted immediate probation. Soon thereafter, the trial court revoked the appellant's probation due to the appellant's failure to comply with the terms of his release. On appeal, the appellant contends that the trial court erred when it revoked his probation and sentenced him to serve the balance of his sentence in incarceration. Upon review of the record and the parties' briefs, we affirm the judgment of the trial court.

State of Tennessee v. Ronnie Daniel
M2001-01217-CCA-R3-CD
Authoring Judge: Judge Joe G. Riley
Trial Court Judge: Judge Stella L. Hargrove

On March 6, 1997, the defendant pled guilty to a two-count indictment for passing worthless checks in an amount over $10,000, a Class C felony, and in an amount over $1,000, a Class D felony. He was granted judicial diversion and placed on probation. The trial court subsequently revoked the defendant's diversion and sentenced him to concurrent sentences of four years and six months for the Class C felony and two years for the Class D felony, all suspended except seven months service in the county jail. In this appeal, the defendant contends he should have received full probation or community corrections upon being revoked from judicial diversion. We disagree and affirm the judgment of the trial court.

Doxie M. Frayser v. Dentsply International, Inc.
W2001-01485-SC-WCM-CV
Authoring Judge: L. Terry Lafferty, Senior Judge
Trial Court Judge: Robert A. Lanier, Judge
The trial court found that Plaintiff's workers' compensation claim for an injury occurring in 1994, was barred by the statute of limitations and that the doctrine of equitable estoppel was not applicable to the case. We hold that an employer may not offer an employee an alternative benefit option that would circumvent Tennessee Workers' Compensation Law when the employer is aware that the employee's injury is work-related. As discussed below, the trial court's judgment is reversed and remanded in part and affirmed in part.

State of Tennessee v. Don Woody McGowan
M2001-02866-CCA-R3-CD
Authoring Judge: Judge Thomas T. Woodall
Trial Court Judge: Judge Thomas W. Graham

Defendant, Don Woody McGowan, was convicted by a Marion County jury of possession of drug paraphernalia, a Class E felony. Defendant appeals his conviction, presenting the following issues for review: (1) whether the evidence was sufficient to support his conviction; (2) whether he was denied a fair trial by the trial court's denial of his motion to sever the cases when the co-defendant failed to appear on the second day of trial; (3) whether the trial judge erred by failing to recuse himself; and (4) whether his sentence was proper. After a review of the record, we find that the evidence was insufficient to sustain the conviction. The judgment of the trial court is reversed, and the case is dismissed.

State of Tennessee v. Barry K. Harris
M2001-01359-CCA-R3-CD
Authoring Judge: Judge John Everett Williams
Trial Court Judge: Judge Donald P. Harris

The defendant was convicted of theft over $500.00, two counts of theft over $1000.00, and driving on a suspended license with prior convictions. He was given an effective sentence of eighteen years in the Department of Correction. The defendant contends that the sentence imposed by the trial court is excessive. The trial court followed the statutory sentencing procedure, imposed a lawful sentence after considering and weighing the proper factors and principles set out under sentencing law, and the trial court's findings of fact are supported by the record. Accordingly, we affirm the judgment of the trial court.The defendant was convicted of theft over $500.00, two counts of theft over $1000.00, and driving on a suspended license with prior convictions. He was given an effective sentence of eighteen years in the Department of Correction. The defendant contends that the sentence imposed by the trial court is excessive. The trial court followed the statutory sentencing procedure, imposed a lawful sentence after considering and weighing the proper factors and principles set out under sentencing law, and the trial court's findings of fact are supported by the record. Accordingly, we affirm the judgment of the trial court.

John C. Tomlinson v. State of Tennessee
M2001-02152-CCA-R3-CO
Authoring Judge: Judge Joe G. Riley
Trial Court Judge: Judge Steve R. Dozier
The petitioner appeals the trial court's denial of the appointment of counsel and the dismissal of his petition for writ of habeas corpus. For many and varied reasons, we affirm.

Rodney D. Palmer v. State of Tennessee
W2001-01571-CCA-R3-PC
Authoring Judge: Judge Robert W. Wedemeyer
Trial Court Judge: Judge Chris B. Craft

A Shelby County jury convicted the Petitioner of attempted second degree murder, a Class B felony, and three counts of aggravated assault, a Class C felony. The trial court ordered the Petitioner to serve an effective twenty-six-year sentence in the Tennessee Department of Correction. This Court affirmed the Petitioner's convictions on appeal, and the Tennessee Supreme Court denied permission to appeal. The Petitioner filed a petition for post-conviction relief. Following a hearing, the court denied post-conviction relief. The Petitioner now appeals the denial of post-conviction relief. Finding no error, we affirm the judgment of the post-conviction court.

State of Tennessee v. Thomas Dee Huskey
E1999-00438-CCA-R3-CD
Authoring Judge: Judge Joseph M. Tipton
Trial Court Judge: Judge Richard R. Baumgartner

The defendant, Thomas Dee Huskey, appeals as of right from his convictions and sentences for aggravated rape, rape, aggravated robbery, robbery, especially aggravated kidnapping, and aggravated kidnapping, for which he received an aggregate sentence of sixty-six years. The convictions relate to four victims and result from two trials that were consolidated for this appeal. The defendant raises numerous issues. Although we conclude that several errors occurred, only one requires reversal of any convictions. Because of improper consolidation, we reverse the judgments for the three aggravated rape convictions and one especially aggravated kidnapping conviction relating to the victim, D.C., but we affirm the remaining judgments of conviction.

State of Tennessee v. Steven Murray
E2000-02878-CCA-R3-CD
Authoring Judge: Judge Thomas T. Woodall
Trial Court Judge: Judge E. Eugene Eblen
In this case, the Defendant, Steven Murray, pled guilty to assault. The Criminal Court of Roane County sentenced Defendant to serve the agreed-upon 11 months and 29 days, suspended, on supervised probation, and ordered restitution in the amount of $10,622.75. In his sole issue on appeal, Defendant asserts that the trial court erred in the amount of restitution ordered and requests that the order of restitution be set aside and this case remanded for a new hearing. We have found a clerical error in the order setting forth the conditions of probation and remand for correction of that order. Otherwise, the judgment of the criminal court is affirmed.

Rodney Tipton v. State of Tennessee
E2001-00001-CCA-R3-PC
Authoring Judge: Judge David G. Hayes
Trial Court Judge: Judge D. Kelly Thomas, Jr.
The Appellant, Rodney Lee Tipton, proceeding pro se, appeals from the dismissal of his petition for post-conviction relief. Tipton was convicted by a Blount County jury of aggravated rape and aggravated robbery and received an effective thirty-three year sentence in the Department of Correction. On appeal, Tipton argues that he should receive a new trial based upon the following grounds: (1) the State’s refusal to respond to his discovery requests, and the post-conviction court’s failure to address his motion to compel discovery; (2) denial of the right to represent himself at his post-conviction hearing; (3) denial of his right to testify at trial; (4) ineffective assistance of counsel; (5) prosecutorial misconduct; (6) actual innocence; (7) the cumulative effect of all errors; and (8) the post-conviction court’s failure to enter specific findings of fact and conclusions of law. After a review of the record, we affirm the dismissal of Tipton’s petition for post-conviction relief.

State of Tennessee v. Rhonda Patricia Mayes - Order
M2001-00423-CCA-R3-CD
Authoring Judge: Judge John Everett Williams

The opinion and judgment entered June 24, 2002, are hereby VACATED and WITHDRAWN. A corrected opinion and judgment will be filed in due course.

Lawrence County v. Jerry Brewer, et al .
M2001-00078-COA-R3-CV
Authoring Judge: Judge William B. Cain
Trial Court Judge: Robert L. Holloway
This matter involves a dispute over payment of solid waste disposal fees, which the Lawrence County Commission attempted to charge the citizens of Lawrence County, and application of late payment penalties to these fees. Lawrence County filed complaints in order to collect overdue solid waste fees that the Commission allegedly enacted on May 25, 1999 by Resolution #11052599. The trial court determined that Resolution #11051599 did not impose any solid waste fees on the residents of Lawrence County and dismissed Plaintiff's complaints. We affirm the trial court.

In Re: Estate of Vivian McSwain
M2001-02309-COA-R3-CV
Authoring Judge: Judge Charles D. Susano, Jr.
Trial Court Judge: Frank G. Clement, Jr.
Robert L. Poe, in his capacity as the executor of the Estate of Vivian K. McSwain, filed a motion to set his fee and expenses. Following a bench trial on the executor's motion, the trial court awarded the executor $20,000. The executor appeals, arguing that the award is inadequate. We affirm.

K. Mahendra Chowbay v. Brian Davis, et al.
M2001-01838-COA-R3-CV
Authoring Judge: Judge David Michael Swiney
Trial Court Judge: Marietta M. Shipley
In this premises liability case, K. Mahendra Chowbay ("Plaintiff") sued the owners of a club, Silverado's Saloon and Dance Hall ("Silverado's"), for injuries Plaintiff received during an assault by one of Silverado's patrons, Brian Davis. Plaintiff also sued Davis. Silverado's owners, Pat Patton and Eight Track Management Company, LLC, d/b/a Silverado's Saloon and Dance Hall ("Defendants"), filed a Tenn. R. Civ. P. 12.02(6) motion to dismiss which must be treated as a motion for summary judgment because matters outside the pleadings were submitted to the trial court. Defendants contended in their motion that since Davis' assault of Plaintiff occurred on property neither owned nor operated by Defendants, Defendants owed no duty of care to Plaintiff to protect him from such an assault. The trial court granted Defendants' motion. Plaintiff appeals. We affirm.

Joe Livingston v. Jennifer Elaine Livingston
M2001-02697-COA-R3-CV
Authoring Judge: Judge Charles D. Susano, Jr.
Trial Court Judge: John W. Rollins
This is a divorce case. The trial court granted Joe Phillip Livingston ("Father") a divorce from Jennifer Elaine Livingston ("Mother") on the ground of inappropriate marital conduct and awarded primary physical custody of the parties' two minor children to Father. Mother was granted visitation rights; however, the court ordered that she "refrain from allowing the parties' children to be at the residence of [Mother's] maternal grandmother" during visitation. Mother appeals the award of custody and the granting of the divorce to Father. In addition, Mother also raises a procedural issue and questions the admission of certain evidence. We affirm.

Tracey L. (Yanusz) Taylor v. John J. Yanusz
M2001-02760-COA-R3-CV
Authoring Judge: Judge William C. Koch, Jr.
Trial Court Judge: C. L. Rogers
This appeal involves a dispute over the custody of a five-year-old boy. His parents were divorced following his mother's extramarital affair. Their marital dissolution agreement established a joint custody arrangement with the father having primary physical custody. Following an unsuccessful two-year reconciliation effort, the child's mother petitioned the Sumner County General Sessions Court for sole custody. The father insisted that the child's circumstances had not changed and that he continued to be more fit than the mother to be the child's primary custodian. The trial court, sitting without a jury, determined that the child's circumstances had changed and that the child's interests would be best served by placing him in his mother's custody. The father asserts on this appeal that the child's circumstances have not changed materially and that the evidence does not support giving sole custody to the mother. While we have determined that the child's circumstances changed following his parents' divorce, we have determined that the evidence preponderates against the trial court's conclusion that the changes are so escalating and dangerous that they required a change in the original custody arrangement. Accordingly, we vacate the order awarding the mother sole custody of the child and remand the case for further proceedings.

Tonya Ray v. William Ray
M2002-01553-COA-R10-CV
Authoring Judge: Judge William C. Koch, Jr.
Trial Court Judge: Carol L. Soloman
This extraordinary appeal involves a dispute over the custody of four-year-old twins. On October 5, 2001, this court vacated an order of the Circuit Court for Davidson County granting custody of the twins to the former husband of their biological mother and remanded the case for the purpose of determining whether the twins' biological father is currently fit to have custody and whether placing the twins in his custody will expose them to substantial harm. On June 27, 2002, the trial court declined to permit the biological father to continue visitation with the twins pending court-ordered psychological evaluations of the biological father and the twins. We have determined that the June 27, 2002 order must be vacated because it lacks evidentiary support and is based on a significant misinterpretation of our October 5, 2001 opinion.

Kuehne & Nagel, Inc. v. Preston, Skahan & Smith International, Inc.
M1998-00983-COA-R3-CV
Authoring Judge: Judge William C. Koch, Jr.
Trial Court Judge: Walter C. Kurtz
This appeal involves a contract dispute between a customs broker and an importer of Russian vodka. The customs broker sued the importer in the Davidson County General Sessions Court seeking to recover $4,781.16, and the importer counterclaimed alleging fraud, breach of fiduciary duty, and usury. After the general sessions court dismissed both cases, the parties appealed to the Circuit Court for Davidson County. On the day of trial, the trial court denied the importer's motion to exclude nine invoices that the customs broker had failed to produce during discovery. Thereafter, the trial court, sitting without a jury, awarded the customs broker a $4,623.16 judgment and dismissed the importer's countersuit. On this appeal, the importer asserts that the trial court erred by refusing to exclude the nine invoices and that the evidence preponderates against the judgment. We have determined that the trial court did not abuse its discretion by denying the importer's motion in limine and that the evidence supports the judgment for the customs broker. Accordingly, we affirm the judgment.

Charles Dallas Cauthern, et al. v. City of White Bluff, Tennessee
M1998-00991-COA-R3-CV
Authoring Judge: Judge William C. Koch, Jr.
Trial Court Judge: Leonard W. Martin
This appeal stems from two landowners' efforts to change the zoning classification of their property from residential to commercial and industrial. After the White Bluff Town Council denied their request, the landowners filed a petition for writ of common-law certiorari in the Chancery Court for Dickson County alleging that the council's action was invalid because one council member who had recused himself from voting on the proposed zoning change actively opposed their request and caused another council member to recuse himself. The trial court, sitting without a jury, denied the landowners' petition, and the landowners have appealed. Treating the petition as a complaint of declaratory judgment, we have determined that the effectiveness of the council member's recusal is a nonjusticiable political question. Accordingly, we affirm the trial court's conclusion that the landowners were not entitled to judicial relief.

Calvin Tankesly v. Sgt. Pugh, et al.
M2000-01520-COA-R3-CV
Authoring Judge: Presiding Judge Patricia J. Cottrell
Trial Court Judge: Ellen Hobbs Lyle

State of Tennessee v. Steven Lee Whitehead
W2002-00484-CCA-RM-CD
Authoring Judge: Judge David H. Welles
Trial Court Judge: Judge Roy B. Morgan, Jr.
The Defendant, Steven Lee Whitehead, was convicted by a jury of three counts of rape. The trial court subsequently sentenced the Defendant to ten years in the Department of Correction for each conviction, with the sentences running concurrently. On direct appeal by the Defendant, this Court reversed all three convictions due to the trial court’s failure to instruct the jury on sexual battery as a lesser-included offense of rape. See State v. Steven Lee Whitehead, No. W2000-01062-CCA-R3-CD, 2001 Tenn. Crim. App. LEXIS 732, at *68-69 (Jackson, Sept. 7, 2001). The State then filed an application for permission to appeal to our supreme court pursuant to Tennessee Rule of Appellate Procedure 11. The supreme court granted the State’s application for the sole purpose of remanding the case to this Court for reconsideration in light of its recent opinion in State v. Allen, 69 S.W.3d 181 (Tenn. 2002). Upon reconsideration, we again reverse the Defendant’s three convictions of rape and remand this matter for a new trial.

State of Tennessee v. Steven Lee Whitehead - Dissenting
W2002-00484-CCA-RM-CD
Authoring Judge: Judge Norma McGee Ogle
Trial Court Judge: Judge Roy B. Morgan, Jr.

Because I have no difficulty concluding that the trial court’s failure to instruct the jury on sexual battery constitutes harmless error according to the standard enunciated in State v. Allen, 69 S.W.3d 181, 191 (Tenn. 2002), I must respectfully dissent from the majority’s reversal of the appellant’s convictions of rape. As acknowledged by the majority, our supreme court emphasized in Allen that, “[w]hen a lesser-included offense instruction is improperly omitted, . . . the harmless error inquiry is the same as for other constitutional errors” and entails an examination of both the evidence adduced at trial and the defendant’s theory of defense. Id. As also acknowledged by the majority, RB unequivocally testified at trial that the appellant’s sexual assault upon her included three separate acts of sexual penetration, and her testimony was uncontradicted with the exception of the appellant’s statements to the police denying any sexual activity whatsoever between himself and RB. In other words, the appellant’s defense in this case did not hinge upon the nature of the sexual activity between himself and RB but rather upon whether any sexual activity occurred. Accordingly, with respect to the evidence underlying each count of rape, the appellant was either guilty of the charged offense or entirely innocent. Under these circumstances, the trial court’s failure to instruct the jury on sexual battery should not afford the appellant relief.

William R. Diaz v. State of Tennessee
E2001-00661-CCA-R3-PC
Authoring Judge: Judge Joseph M. Tipton
Trial Court Judge: Judge James B. Scott, Jr.

The petitioner, William R. Diaz, appeals the Anderson County Criminal Court's denial of his petition for post-conviction relief, claiming that he received the ineffective assistance of counsel. He contends that his trial attorney was ineffective for (1) failing to file a motion to suppress his statement to the police on the grounds that it was coerced and (2) failing to file a motion to suppress evidence that the police took from his garage without a search warrant. We affirm the judgment of the trial court.