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.
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.
Anderson
Court of Criminal Appeals
Stanley Alford vs. Pamela Alford E2001-02361-COA-R3-CV
Authoring Judge: Judge Charles D. Susano, Jr.
Trial Court Judge: Joyce M. Ward
In this divorce case, the trial court dissolved a marriage of 21 years and divided the parties' marital property. Stanley David Alford ("Husband") appeals, arguing that the division of property was not equitable and that the trial court erred in requiring him to pay the post-separation debts of his wife, Pamela Ward Alford ("Wife"). By way of a separate issue, Wife contends that the trial court erred in refusing to award retroactive child support. We affirm.
Hamblen
Court of Appeals
E2001-02860-COA-R3-CV E2001-02860-COA-R3-CV
Authoring Judge: Judge Charles D. Susano, Jr.
Trial Court Judge: Billy Joe White
Campbell
Court of Appeals
Rita Jones vs. Clinton Jones E2001-03112-COA-R3-CV
Authoring Judge: Judge Charles D. Susano, Jr.
Trial Court Judge: Steven C. Douglas
In this divorce case, the issues raised on appeal all pertain to the trial court's alimony award. That court awarded Rita Jo Findley Jones ("Wife") alimony of $756 per month "until the death or remarriage of [Wife] or until such time as the court modifies its order in this regard." Clinton Garland Jones ("Husband") appeals, contending that Wife is not entitled to alimony; that, if she is entitled to spousal support, she should be awarded rehabilitative alimony rather than alimony in futuro; and that, in any event, $756 per month "is excessive." We modify the trial court's award of alimony. As modified, it is affirmed.
Cumberland
Court of Appeals
James Raulston vs. Montgomery Elevator E2002-00216-COA-R3-CV
Authoring Judge: Judge Houston M. Goddard
Trial Court Judge: Dale C. Workman
This is a negligence action stemming from injuries allegedly sustained by Plaintiff James Michael Raulston when the elevator in which he was riding allegedly fell approximately five floors and came to an abrupt stop. Mr. Raulston sued Defendant Montgomery KONE, Inc. ("Montgomery KONE"), alleging it was negligent in failing to properly maintain the subject elevator in a safe condition. Montgomery KONE filed a motion for summary judgment, which the Trial Court granted. Mr. Raulston argues on appeal that the Court's grant of summary judgment was improper. We find there are genuine issues of material fact and therefore vacate the judgment of the Trial Court.
Knox
Court of Appeals
Roy Jones vs. Perry Spurling E2001-02875-COA-R3-CV
Authoring Judge: Judge Houston M. Goddard
Trial Court Judge: Frank V. Williams, III
This is a suit by Roy Jones, a tenured teacher in the Morgan County School System, against Perry Spurling, Keith Adcock, Cassandra Duncan, Debbie Lively, and Conrad Strand, Members of the Morgan County Board of Education, Paul Scarbrough, Superintendent of the Morgan County Schools, and the Morgan County Board of Education. The suit seeks, by means of a writ of certiorari, to overturn a determination of the Board that Mr. Jones' employment should be terminated because of an altercation between him and a student. We vacate and remand.
Morgan
Court of Appeals
City of Gatlinburg vs. James Odom, d/b/a Thomas Kincade Galleries E2001-02934-COA-R3-CV
Authoring Judge: Judge Charles D. Susano, Jr.
Trial Court Judge: Richard R. Vance
On nine separate occasions, the defendant was cited to the Gatlinburg Municipal Court by the City of Gatlinburg for building without a permit. The citations were consolidated for trial on October 17, 2001. Following an adverse ruling, the defendant attempted to appeal to the Sevier County Circuit Court. In doing so, he filed his appeal bonds in the circuit court. The City moved to dismiss the appeals, contending that the appeal bonds should have been filed in the municipal court. The circuit court dismissed the appeal, finding that it had no jurisdiction of the appeal. We affirm.
Sevier
Court of Appeals
Janet Bolton, et al vs. State of Tennessee E2001-02960-COA-R9-CV
Authoring Judge: Judge David Michael Swiney
Janet Bolton and Jack Bolton ("Plaintiffs") sued the State of Tennessee ("State"), alleging the State was liable for injuries Janet Bolton received in a motor vehicle accident which occurred on a State highway in Loudon County. The State filed a Motion for Summary Judgment, arguing it was entitled to judgment as a matter of law under the defense of discretionary function immunity. The Tennessee Claims Commission denied the motion. The State appeals. We affirm, in part, and reverse, in part, and remand.
Loudon
Court of Appeals
State of Tennessee v. Judy Johnson and Stanley Johnson W2001-01272-CCA-R3-CD
Authoring Judge: Judge Alan E. Glenn
Trial Court Judge: Judge George R. Ellis
The husband and wife defendants, Stanley and Judy Johnson, were convicted of eleven counts of cruelty to animals, as the result of conditions at a kennel in Gibson County where they were keeping approximately 350 dogs. Stanley Johnson was sentenced to eleven months and twenty-nine days on each count, with all sentences to be served concurrently, and, as to these sentences, to serve ninety days in the county jail with the remainder on probation. Judy Johnson was sentenced, likewise, to eleven months and twenty-nine days on each count, with all sentences to be served concurrently, but she was to serve six months before being put on probation. Both defendants were fined $1000 in each of the eleven counts. On appeal, they argue that the trial court erred in allowing testimony as to a prior similar complaint against Stanley Johnson and in denying total probation for both. Additionally, they argue that the proof is insufficient to sustain the verdicts. We affirm the judgments of conviction.
Gibson
Court of Criminal Appeals
State of Tennessee v. Judy Johnson and Stanley Johnson - Concurring W2001-01272-CCA-R3-CD
Authoring Judge: Presiding Judge Gary R. Wade
Trial Court Judge: Judge George R. Ellis
While I concur in the result reached by the majority, I disagree on three points. First, it is my view that the trial court erred by permitting the state to cross-examine Stanley Johnson on a 1993 animal cruelty charge that did not result in a conviction. Tennessee Rule of Evidence 608 permits limited use of character evidence for impeachment purposes. Rule 608 provides in pertinent part as follows:
The appellant, Herman Holston, was convicted after a trial by jury of sale of cocaine, a Class C felony, and was sentenced as a Range II offender to eight years and six months confinement in the Department of Correction. On appeal, Holston raises the following issues for our review: (1) whether the evidence was sufficient to support the verdict, and (2) whether his sentence was proper. After a review of the record, we find that Holston's issues are without merit. Accordingly, the judgment of the Shelby County Criminal Court is affirmed.
Shelby
Court of Criminal Appeals
Jimmy Pardue vs. Theresa Pardue W2001-01731-COA-R3-CV
Authoring Judge: Judge D'Army Bailey
Trial Court Judge: Dewey C. Whitenton
This is an appeal from the trial court's decision denying appellant's motion to void an Irreconcilable Differences divorce decree because it was granted within ninety-days of the divorce's filing. Though the appellant sought the voiding of the decree as alternative relief, it appears the essence of the relief sought is child support modification. Thus, the attempt to void the decree is a collateral attack on the judgment and the ninety-day requirement cannot be used in a collateral attack to void a divorce decree.
The defendant, Patsy Webster, appeals the Henry County Circuit Court's ordering her to serve one year of her effective two-year sentence in continuous confinement. She claims that the trial court erred in requiring her to serve a full year in jail because she was eligible as a Range I offender with only a two-year sentence for release after serving thirty percent of her sentence. The state agrees. We hold that the defendant was improperly sentenced and remand the case for resentencing.
Sherry Hopkins vs. James Hopkins E2001-02849-COA-R3-CV
Authoring Judge: Judge Houston M. Goddard
Trial Court Judge: Ben W. Hooper, II
In this appeal from the Circuit Court for Sevier County the Appellant, James Franklin Hopkins questions whether the Trial Court erred in awarding alimony to the Appellee, Sherry Mae Hopkins, and in ordering that all of Ms. Hopkins' debts be paid out of proceeds from the sale of the marital residence. Mr. Hopkins also asserts that Ms. Hopkins unlawfully disposed of marital assets. We affirm in part and modify in part.
Sevier
Court of Appeals
Robert Jones vs. Vick Idles E2001-02833-COA-R9-CV
Authoring Judge: Judge David Michael Swiney
Trial Court Judge: William E. Lantrip
Anderson
Court of Appeals
Robert Jones vs. Vick Idles E2001-02833-COA-R9-CV
Authoring Judge: Judge David Michael Swiney
Trial Court Judge: William E. Lantrip
Anderson
Court of Appeals
Larry Morgan d/b/a Morgan Contracting vs. Tellico Plains E2001-02733-COA-R3-CV
Authoring Judge: Judge Houston M. Goddard
Trial Court Judge: Lawrence H. Puckett
In this contract dispute, the Plaintiff, Morgan Contracting, Inc. ("Morgan") sued the Town of Tellico Plains, alleging that it was due $68,464.86 under the terms of the contract. Tellico Plains answered with the defense that Morgan's claim was time-barred under the sixty-day limitations period set forth in the contract. After a non-jury trial, the Court ruled that Morgan had not filed suit within the contractual limitations period and consequently dismissed Morgan's cause of action. On appeal, Morgan argues that the Trial Court erred in not finding that Tellico Plains waived its right to rely upon the contractual limitations period provision. We affirm the judgment of the Trial Court.
Monroe
Court of Appeals
Vicky Lynn Presley v. Vf Workwear, Inc. M2001-01912-WC-R3-CV
Authoring Judge: Joe C. Loser, Jr., Sp. J.
Trial Court Judge: Vernon Neal, Chancellor
In this appeal, the employer insists (1) the trial court erred by considering the operating surgeon's medical impairment rating and (2) the award of permanent partial disability benefits is excessive. As discussed below, the panel has concluded the judgment should be affirmed.
Putnam
Workers Compensation Panel
Betsy D. Coker v. Beverly Enterprises Tennessee, Inc. M2000-01630-WC-R3-CV
Authoring Judge: Joe C. Loser, Jr., Sp. J.
Trial Court Judge: Jeffrey Stewart, Chancellor
This workers' compensation appeal has been referred to the Special Workers' Compensation Appeals Panel of the Supreme Court in accordance with Tenn. Code Ann. _ 5-6-225(e)(3) for hearing and reporting to the Supreme Court of findings of fact and conclusions of law. In this appeal, the employer-appellant questions (1) the trial court's finding that the employee's injury arose out of and in the course of her employment and (2) the award of permanent partial disability benefits based on 65 percent to the leg. As discussed below, the panel has concluded the judgment should be affirmed. Tenn. Code Ann. _ 5-6-225(e) (21 Supp.) Appeal as of Right; Judgment of the Chancery Court Affirmed. JOE C. LOSER, JR., SP. J., in which FRANK F. DROWOTA, III, C. J., and JOHN K. BYERS, SR. J., joined. Pamela M. McCord and Richard E. Spicer, Nashville, for the appellant, Beverly Enterprises, Inc., d/b/a Beverly Healthcare Robert T. Carter, Tullahoma, Tennessee, for the appellee, Betsy D. Coker MEMORANDUM OPINION The employee or claimant, Ms. Coker, initiated this civil action to recover workers' compensation benefits for an injury by accident arising out of and in the course of her employment as a nurse for Beverly Healthcare. The employer denied liability and denied the claimant suffers any permanent disability. Following a trial on the merits on May 21, 21, the trial court resolved the issues in favor of the claimant and awarded, inter alia, permanent partial disability benefits based on 65 percent to the leg. The employer has appealed. Appellate review is de novo upon the record of the trial court, accompanied by a presumption of correctness of the findings of fact, unless the preponderance of the evidence is otherwise. Tenn. Code Ann. _ 5-6-225(e)(2). The reviewing court is required to conduct an independent examination of the record to determine where the preponderance of the evidence lies.
Franklin
Workers Compensation Panel
Josephine Bryant v. Imperial Manor Convalescent M2000-01582-WC-R3-CV
Authoring Judge: Joe C. Loser, Jr., Sp. J.
Trial Court Judge: Irvin H. Kilcrease, Chancellor
This workers' compensation appeal has been referred to the Special Workers' Compensation Appeals Panel of the Supreme Court in accordance with Tenn. Code Ann. _ 5-6-225(e)(3) for hearing and reporting to the Supreme Court of findings of fact and conclusions of law. In this appeal, the employer-appellant questions (1) the trial court's finding of compensability and (2) the imposition of a 6 percent penalty. As discussed below, the panel has concluded the judgment should be affirmed. Tenn. Code Ann. _ 5-6-225(e) (21 Supp.) Appeal as of Right; Judgment of the Chancery Court Affirmed JOE C. LOSER, JR., SP. J., in which FRANK F. DROWOTA, III, C. J., and JOHN K. BYERS, SR. J., joined. Clarence E. Lutz, Nashville, Tennessee, for the appellant, Imperial Manor Convalescent Center, LLC. Carson W. (Bill) Beck, Nashville, Tennessee, for the appellee, Josephine Bryant MEMORANDUM OPINION The employee or claimant, Josephine Bryant, injured her back at work. When the employer, Imperial Manor, denied her claim for workers' compensation benefits, she initiated this civil action. Following a trial on the merits, the trial court found the claimant's injury to be compensable and awarded benefits. The employer has appealed. Appellate review is de novo upon the record of the trial court, accompanied by a presumption of correctness of the findings of fact, unless the preponderance of the evidence is otherwise. Tenn. Code Ann. _ 5-6-225(e)(2). The reviewing court is required to conduct an independent examination of the record to determine where the preponderance of the evidence lies.
Davidson
Workers Compensation Panel
Cheryl Nichols v. Transcor America M2001-01889-COA-R9-CV
Authoring Judge: Judge Ben H. Cantrell
Trial Court Judge: Marietta M. Shipley
A female prisoner who was allegedly raped by an employee of TransCor America, Inc., an inmate transportation company, brought suit against the company for negligence and breach of contract. The trial court granted partial summary judgment to the defendant company on the negligence claim, ruling among other things that it is not a common carrier under Tennessee law. The court also denied the company's motion for summary judgment on the plaintiff's contract claim. Both parties filed applications for an interlocutory appeal, which we granted. We affirm the trial court as to both issues.
An Obion County Circuit Court jury convicted the defendant, Ernest Lee Littles, of rape of a child, a Class A felony. The trial court sentenced him as a child rapist to twenty years in the Tennessee Department of Correction, with 100% of the sentence to be served. In his appeal as of right, the defendant claims only that there was insufficient evidence to support his conviction. We affirm the judgment of the trial court but remand for entry of a corrected judgment
The defendant was indicted for first degree murder and convicted by the jury of second degree murder. He filed a petition for post-conviction relief, and was permitted to make a delayed motion for a new trial, which ultimately was denied by the trial court. The defendant appeals the denial, arguing that the evidence at trial was insufficient to support his conviction for second degree murder. After a review of the record, we conclude that there was sufficient evidence to convict the defendant of second degree murder and that the trial court properly denied the defendant's motion for judgment of acquittal and a new trial.
