State of Tennessee v. David Scott Winfrey
M2009-02480-CCA-R3-CD
Authoring Judge: Judge David H. Welles
Trial Court Judge: Judge Dee David Gay

The Defendant, David Scott Winfrey, pleaded guilty to twenty-nine Class A misdemeanors consisting of one count of aggravated criminal trespass, one count of stalking, thirteen counts of harassment, and fourteen counts of violation of an order of protection. Following a sentencing hearing, the trial court sentenced the defendant to eleven months and twenty-nine days for each offense and ordered that ten of his violation of an order of protection sentences run consecutively. In a previous decision, we remanded this matter for re-sentencing, concluding that the trial court erroneously applied Tennessee Code Annotated section 39-13- 113(g). See State v. David Scott Winfrey, No. M2008-01429-CCA-R3-CD, 2009 WL 2486180 (Tenn. Crim. App., Nashville, Aug. 14, 2009). The defendant now appeals the consecutive sentences imposed upon re-sentencing and contends that they are not in accordance with our previous opinion in this matter. After reviewing the record, we affirm the judgments of the trial court.

Lamario Sumner A/K/A Lamario Fleming v. State of Tennessee
W2009-00453-CCA-R3-PC
Authoring Judge: Thomas T. Woodall, J.
Trial Court Judge: Paula Skahan, Judge
Petitioner, Larmio Sumner a/k/a Lamario Flemming, appeals the post-conviction court's dismissal of his petition for post-conviction relief in which he alleged the ineffective assistance of trial counsel. Specifically, petitioner contends that trial counsel's assistance was ineffective because he failed to (1) request a jury instruction on aggravated assault as a lesser included offense of each count charged in the indictment; and (2) appeal the trial court's imposition of consecutive sentencing. After a thorough review, we affirm the judgment of the post-conviction court.

State of Tennessee v. Marcos Acosta Raymundo, A/K/A Marcos Raymundo Acosta
M2009-00726-CCA-R3-CD
Authoring Judge: Judge David H. Welles
Trial Court Judge: Judge Cheryl Blackburn, Judge

The Defendant, Marcos Acosta Raymundo, a.k.a. Marcos Raymundo Acosta, was charged with one count of aggravated child abuse of a child less than eight years old, a Class A felony, one count of aggravated child neglect of a child less than eight years old, a Class A felony, and two counts of child abuse of a child less than six years old, a Class D felony. See Tenn. Code Ann. __ 39-15-401(a), -402(b). Following a jury trial, he was convicted of four offenses: one count of attempted aggravated child abuse of a child less than eight years old, a Class B felony, and the other three offenses as charged. He was sentenced as a Range I, standard offender to twelve years for count one, attempted aggravated child abuse, twenty-five years for count two, aggravated child neglect, four years for count three, child abuse, and four years for count four, child abuse. The trial court ordered that count two was to be served concurrently with count one, and that counts three and four were to be served concurrently with each other, but consecutively to count two. Thus, the trial court sentenced the defendant to a total effective sentence of twenty-nine years in the Department of Correction. In this direct appeal, the defendant contends that: (1) the State presented evidence insufficient to convict him; and (2) his convictions for counts one, two, and four violated the principles of double jeopardy. After reviewing the record, we conclude that the State presented insufficient evidence to convict the defendant of count two, aggravated child neglect, and that the defendant's convictions for count one, attempted aggravated child abuse, and count four, child abuse, violate the principles of double jeopardy. Thus, we reverse the defendant's convictions on counts two and four, and affirm his convictions on counts one and three. We remand to the trial court for a redetermination of concurrent and consecutive sentencing.

State of Tennessee v. Philip Michael Patterson
E2007-02788-CCA-R3-CD
Authoring Judge: Judge Camille R. McMullen
Trial Court Judge: Judge Jon Kerry Blackwood

The Defendant-Appellant, Phillip Michael Patterson, pled guilty in the Circuit Court of Blount County to two counts of aggravated kidnapping, a Class B felony, one count of aggravated burglary, a Class C felony, one count of aggravated robbery, a Class B felony, two counts of theft of property between $1,000 and $10,000, a Class D felony, and one count of theft under $500, a Class A misdemeanor. He received an effective sentence of thirty years in the Tennessee Department of Correction. Patterson subsequently appealed his guilty pleas, and a protracted procedural history developed. On appeal, two of Patterson's claims remain: (1) whether the trial court erred by denying, without a hearing, his "Motion for Modification or Reduction of Sentence"; and (2) whether his convictions are void because he did not sign the plea agreement. Upon review, we affirm the judgments of the trial court.

State of Tennessee v. Jermaine Mitchell Gray
W2009-01260-CCA-R3-CD
Authoring Judge: Judge J.C. McLin
Trial Court Judge: Judge Donald H. Allen

A Madison County jury convicted the defendant, Jermaine Mitchell Gray, of aggravated robbery, a Class B felony. The trial court sentenced the defendant as a Range I, standard offender to twelve years in the Tennessee Department of Correction. On appeal, the defendant contends that (1) the trial court erred by denying his motion to suppress his confession to police; (2) the evidence was insufficient to support his conviction; and (3) his sentence is excessive. Following our review, we conclude that there is no reversible error and affirm the judgment of the trial court.

State of Tennessee v. Kelvin Reed
W2009-00589-CCA-R3-CD
Authoring Judge: Judge Thomas T. Woodall, J.
Trial Court Judge: Judge W. Mark Ward, Judge

Following a jury trial, Defendant, Kelvin Reed, was convicted of first degree premeditated murder, felony murder, and aggravated burglary. The trial court merged the offenses of first degree murder and felony murder, and defendant was sentenced to serve concurrent sentences of life imprisonment for his murder conviction and three years for aggravated burglary. On appeal, defendant argues that (1) the evidence is insufficient to support his convictions; (2) the trial court erred in admitting certain evidence, including testimony about the music played at defendant's birthday party, testimony that one witness had seen defendant with a gun, and photographs of the victim; and (3) that the judgment for aggravated burglary should be corrected to reflect defendant's actual sentence. Following review, we affirm the convictions and remand to the trial court solely for entry of a corrected amended judgment for aggravated burglary in accordance with this opinion.

Kevin Millen v. Shelby County Sheriff's Department
W2010-01343-COA-R3-CV
Authoring Judge: Presiding Judge Alan E. Highers
Trial Court Judge: Chancellor Walter L. Evans

After unsuccessfully appealing his worker's compensation lawsuit, appellant was assessed appellate court costs. A Fieri Facias/Writ of Execution was executed, and appellant's car was attached and sold at a sheriff's sale. Appellant then filed a lawsuit against the sheriff's office claiming he had been carjacked. The trial court dismissed appellant's complaint and we affirm.

Christopher Lovin v. State of Tennessee
E2009-00939-CCA-RM-PC
Authoring Judge: Presiding Judge Joseph M. Tipton
Trial Court Judge: Judge E. Shayne Sexton, Judge

The Petitioner, Christopher Lovin, appeals the Claiborne County Criminal Court's denial of post-conviction relief from his conviction for felony murder in the perpetration of aggravated child abuse. On appeal, he contends that trial counsel rendered ineffective assistance by (1) failing to object to the State's amendment of his indictment, (2) failing to examine and rebut the State's medical witnesses properly, (3) failing to object to the State's use of demonstrative evidence, and (4) failing to object to the State's presentation of two theories of causation. We affirm the judgment of the trial court.

Victor L. Dobbins v. State of Tennessee
M2009-02652-CCA-R3-PC
Authoring Judge: Judge David H. Welles
Trial Court Judge: Judge Cheryl Blackburn

Following a bench trial, the Petitioner, Victor L. Dobbins, was found guilty of being a convicted felon in possession of a handgun, a Class E felony. See Tenn. Code Ann. _ 39-17- 1307(b)(2). This Court affirmed his conviction on direct appeal. State v. Victor L. Dobbins, No. M2007-01751-CCA-R3-CD, 2008 WL 2648951 (Tenn. Crim. App., Nashville, July 3, 2008), perm. to appeal denied, (Tenn. Dec. 22, 2008). The petitioner filed a timely petition for post-conviction relief. Following an evidentiary hearing, the post-conviction court denied relief. In this appeal, the petitioner contends that the post-conviction court erred in denying him relief because: (1) trial counsel failed to properly investigate his case and (2) the cumulative effect of trial counsel's errors entitles him to a new trial. After our review, we affirm the post-conviction court's denial of relief.

State of Tennessee v. Vincent Jordan
M2009-02488-CCA-R3-CD
Authoring Judge: Presiding Judge Joseph M. Tipton
Trial Court Judge: Judge Michael R. Jones

The Defendant, Vincent Jordan, appeals the Montgomery County Circuit Court's order revoking his probation for robbery, a Class C felony, and ordering the Defendant to serve the remainder of his eight-year sentence in confinement. We affirm the judgment of the trial court.

State of Tennessee v. Viola Darlene Stephens
M2008-02847-CCA-R3-CD
Authoring Judge: Judge Thomas T. Woodall
Trial Court Judge: Judge J. Curtis Smith

Defendant, Viola Darlene Stephens, pled guilty to theft of property valued at less than $500, a Class A misdemeanor, and driving on a revoked license, a Class B misdemeanor. The trial court sentenced her to eleven months, twenty-nine days for the theft conviction, to serve six months, and six months for driving on a revoked license, to be fully served in incarceration. The sentences were ordered to be served concurrently with each other. On appeal, defendant contends that the trial court erred in not stating whether it had considered a sentence of community corrections. After a thorough review of the record, we affirm the judgments of the trial court.

William W. Griffin v. Walker Die Casting, Inc., et al.
M2009-01773-WC-R3-WC
Authoring Judge: Senior Judge Jon Kerry Blackwood
Trial Court Judge: Judge F. Lee Russell

Pursuant to Tennessee Supreme Court Rule 51, this workers’ compensation appeal has been referred to the Special Workers’ Compensation Appeals Panel for a hearing and a report of findings of fact and conclusions of law. The employee sought to compel the employer to provide a total left knee replacement surgery based upon court-approved settlement for a work-related left knee contusion. The trial court ordered the employer to provide the knee replacement surgery and awarded attorney’s fees to the employee. The employer has appealed, arguing that the trial court erred by finding that the proposed surgery was causally related to the work injury. We agree and reverse the trial court’s order.

Thomas E. Blake v. Nissan North America, Inc., et al.
M2009-02173-WC-R3-WC
Authoring Judge: Senior Judge Walter C. Kurtz
Trial Court Judge: Chancellor Robert E. Corlew, III

The employee sustained a compensable injury to his right arm. After surgery and recovery, he returned to work for the same employer at the same rate of pay. Over a year later, his work week was reduced from forty to thirty-two hours per week as part of a plant-wide reduction in hours due to economic conditions. While working the reduced number of hours, he accepted a buyout offer and voluntarily resigned. Subsequently, his workers’ compensation case was tried. The trial court held that he did not have a meaningful return to work because of the reduction in work hours and made an award of more than one and one-half times the impairment. The employer has appealed, contending that employee had a meaningful return to work in spite of the plant-wide reduction of work hours carried out for the purpose of preventing layoffs. We agree that the reduction in force, under these facts, does not impair the determination that the employee had a meaningful return to work, and we modify the judgment accordingly

Anne S. Phillips vs. Anderson County, Tennessee
E2009-01883-COA-R3-CV
Authoring Judge: Judge John W. McClarty
Trial Court Judge: Special Judge Jon Kerry Blackwood

This appeal involves a retaliatory discharge claim. Employee claims that she was discharged after reporting her supervisor's unlawful activities. Employer denied that employee was discharged, claimed that she quit, and demonstrated that the State terminated the grant funding the program overseen by employee. A jury trial commenced, and at the close of all proof, employer moved for a directed verdict. The trial court granted the motion for directed verdict and found that employee failed to prove a causal link between her discharge and her decision to engage in a protected activity. Employee appeals. We affirm.

In Re: Pauline M., Stephen M., and Rachael M.
E2009-02649-COA-R3-PT
Authoring Judge: Judge J. Steven Stafford
Trial Court Judge: Judge Kenneth N. Bailey, Jr.

This is a termination of parental rights case. The trial court terminated both parents' rights to the children on grounds of: (1) abandonment by failure to provide a suitable home pursuant to Tenn. Code Ann. _ 36-1-102(1)(A)(ii); and (2)persistence of conditions as set out at Tenn. Code Ann. _ 36-1-113(g)(3). The trial court also terminated Father's parental rights on the additional ground of abandonment by failure to support pursuant to Tenn. Code Ann. _ 36-102(1)(A)(i), and Mother's parental rights on the additional ground of mental incompetence pursuant to Tenn. Code Ann. _ 36-1-113 (g)(8)(B). Finding clear and convincing evidence in the record to support each of these grounds, as well as clear and convincing evidence that termination of Mother's and Father's parental rights is in the best interests of the children, we affirm.

Cydnie B. O'Rourke v. James P. O'Rourke
M2007-01833-COA-R3-CV
Authoring Judge: Presiding Judge Patricia J. Cottrell
Trial Court Judge: Judge Robert E. Lee Davies

In the last proceeding in this protracted post-divorce litigation, the trial court transferred custody, or primary residential placement, of three children of a divorced couple from the mother to the father. In this consolidated appeal, the mother claims that the trial court erred in a number of ways. However, a number of her arguments relate to orders or actions that have been rendered moot by the final order, including her challenges to the use of a"parenting coordinator." As to the final order modifying residential placement, we hold that the trial court did not err in declining to use Tenn. Code Ann. _ 36-6-406 to limit the father's visitation with the children and that the court acted within its discretion in limiting the testimony of Mother's expert witness as a discovery sanction. We also hold that the trial court's award of $330,000 in attorney fees to the father was not error. We affirm the trial court.

Joshua Todd Daniels vs. Kevin Grimac, et al
E2009-01510-COA-R3-CV
Authoring Judge: Judge David R. Farmer
Trial Court Judge: Judge Dale Workman

This is an appeal from a judgment summarily holding attorney Herbert S. Moncier in direct, criminal contempt of court. Because the trial court improperly exercised its summary contempt authority several weeks after the cited conduct occurred, we vacate its judgment and remand this case for additional proceedings.

State of Tennessee v. Donna Harvey - Dissenting
E2009-01945-CCA-R3-CD
Authoring Judge: Judge James Curwood Witt, Jr.
Trial Court Judge: Judge Richard R. Vance

The trial court should have rejected the guilty plea as being deficient pursuant
to Tennessee Code Annotated section 40-35-304(g)(1). That subsection provides that when restitution is a component of alternative sentencing and there is “no sentencing hearing or presentence report because the defendant’s sentence is agreed upon and the payment of restitution is a part of the sentence, the plea agreement shall include the amount of restitution and the other performance requirements set out in subsection (c).” Tenn. Code Ann. § 40-35- 304(g)(1). In a theft case, payment of restitution must be “a part of the sentence” pursuant to Tennessee Code Annotated section 40-20-116. See id. § 40-20-116(a) (providing that the trial court “shall . . . order the restitution of the property” in theft cases). In the present case, the plea agreement left no sentencing issues undecided except for the amount and payment method of restitution; no presentence report was entered into evidence. Under the circumstances, the “restitution hearing” was not a “sentencing hearing” as contemplated by section 40-35-304(g)(1); to say otherwise is to render the provisions of subsection (g)(1) meaningless. I cannot fathom why the subsection reads the way it does, but it says what it says.

State of Tennessee v. Donna Harvey
E2009-01945-CCA-R3-CD
Authoring Judge: Presiding Judge Joseph M. Tipton
Trial Court Judge: Judge Richard R. Vance

The Defendant, Donna Harvey, and a codefendant pled guilty in the Sevier County Circuit Court to theft of at least $1,000 but less than $10,000, a Class D felony. See T.C.A. __ 39- 14-103, -105(3) (2006). The defendant received a four-year sentence as a Range II, multiple offender, suspended to time served with the balance on supervised probation. The trial court ordered the defendant and codefendant to pay $64,852 in restitution with joint and several liability. At issue in this appeal is the amount of restitution for damages caused by the crime. We reverse the order setting the restitution amount and remand for a restitution hearing, at which the trial court shall consider the defendant's financial resources and ability to pay and determine the proper amount and schedule of restitution.

State of Tennessee v. Evelyn Cotton Self
M2009-00343-CCA-R3-CD
Authoring Judge: Judge Thomas T. Woodall, J.
Trial Court Judge: Judge Don Ash

Following a jury trial, Defendant, Evelyn Cotton Self, was convicted of driving under the influence (DUI), second offense, a Class A misdemeanor. The trial court sentenced defendant to eleven months, twenty-nine days with defendant's sentence suspended and defendant placed on probation after service of seventy-three days in confinement. On appeal, defendant argues that (1) the evidence is insufficient to support her conviction; (2) the trial court erred in denying defendant's request for a jury instruction on involuntary intoxication; (3) the trial court erred in instructing the jury concerning prescription medicines; (4) the trial court erred in excluding the testimony of defendant's psychologist; and (5) the trial court erred in ordering defendant to serve seventy-three days in confinement. After a thorough review of the record, we affirm the judgment of the trial court.

Phillip Lowell Bledsoe v. State of Tennessee
W2009-00684-CCA-R3-PC
Authoring Judge: Judge Camille R. McMullen
Trial Court Judge: Judge Clayburn L. Peeples

The Petitioner, Phillip Lowell Bledsoe, appeals from the Gibson County Circuit Court's denial of post-conviction relief from his conviction for first degree premeditated murder. In his appeal, the petitioner argues that he received ineffective assistance of counsel because trial counsel failed to pursue potentially exculpatory evidence; failed to impeach a detective's credibility based on his police misconduct in a different case; failed to object to numerous references to the petitioner's gang membership; and failed to file a motion in limine, make an objection, or request a limiting instruction regarding references to a polygraph examination. Upon review, we affirm the judgment of the post-conviction court.

Rick D. Hanebutt v. State of Tennessee
W2009-01346-CCA-R3-PC
Authoring Judge: Judge John Everett Williams
Trial Court Judge: Judge Donald Parish

The petitioner, Rick D. Hanebutt, appeals the Carroll County Circuit Court's denial of his petition for post-conviction relief. The petitioner is currently serving concurrent sentences of life and twenty years for his convictions for first degree murder and attempted first degree murder. On appeal, the petitioner contends that the trial court erred in: (1) denying his motion to continue the postconviction hearing; and (2) denying his petition for post-conviction relief. He contends that the court erred in denying relief because he claims he was denied his right to the effective assistance of counsel. Specifically, he contends that trial counsel was ineffective in failing to: (1) investigate the case and present viable witnesses, proof, and argument as to self-defense; (2) obtain a ballistics expert; (3) obtain unadulterated copies of phone records and obtain the phone records of another witness; (4) properly impeach a witness with inconsistent evidence, statements, and testimony; (5) contest the search warrant; (6) renew a motion to change venue; (7) object to statements made by the prosecution during voir dire; and (8) request additional jury instructions on drug usage and witness credibility. He further contends that the cumulative effect of all the alleged errors supports a finding of ineffective assistance of counsel. Following a thorough review of the record before us, we find no error and affirm the denial of the petition.

International Market and Restaurant, Inc., et al. v. Belmont University, et al.
M2010-00005-COA-R3-CV
Authoring Judge: Judge Andy D. Bennett
Trial Court Judge: Judge Amanda Jane McClendon

International Market and Restaurant, Inc. and Patti Myint, owner of the P.M. Café, sued the Belmont University and the Metropolitan Government because representatives of Belmont and the United States Secret Service informed the plaintiffs that the streets and sidewalks around plaintiffs’ establishments would be closed for security purposes the evening of the Presidential debate at Belmont pursuant to a plan developed by the Secret Service. The plaintiffs closed the businesses that evening; however, the sidewalks were not closed. The plaintiffs claim that they lost revenue by closing and seek compensation based on negligent representation, constructive fraud and breach of the indemnity agreement between Belmont and Metro. The trial court granted Belmont’s motion for summary judgment and Metro’s motion to dismiss. Plaintiffs appealed. We affirm.

State of Tennessee v. Vershawn McCoy
W2009-01222-CCA-R3-CD
Authoring Judge: Judge Robert W. Wedemeyer
Trial Court Judge: Judge W. Mark Ward

A Shelby County jury convicted the Defendant, Vershawn McCoy, of second degree murder, and the trial court sentenced him as a violent offender to twenty years to be served at 100%. On appeal, the defendant contends that the trial court inadequately responded to a jury question raised during deliberation requesting a definition of "state of passion." After a thorough review of the record and applicable authorities, we affirm the trial court's judgment.

Regions Bank, Successor-In-Interest to Union Planters Bank v. Lost Cove Cabins and Campgrounds, Inc., et al.
M2009-02389-COA-R3-CV
Authoring Judge: Judge Andy D. Bennett
Trial Court Judge: Judge Larry B. Stanley, Jr.

The trial court entered judgment against the borrowers and guarantors on two promissory notes. On appeal, the defendants argue that the trial court erred in striking their jury demand and that they are entitled to relief under an alleged written commitment for permanent financing or under various equitable theories. We find the defendants' arguments to be without merit and affirm the decision of the trial court.