State of Tennessee v. Reginald Fowler
E2009-00293-CCA-R3-CD
Authoring Judge: Joseph M. Tipton, P.J.
Trial Court Judge: Richard Baumgartner, Judge
The Defendant, Reginald Fowler, was found guilty of aggravated arson, a Class A felony, following a bench trial in the Knox County Criminal Court. On appeal, he argues (1) that the evidence is insufficient to support his conviction, (2) that the trial court erred in failing to enforce the Rule of Sequestration in violation of Rule of Evidence 615, and (3) that the trial court erred in permitting the State to call a rebuttal witness. We affirm the judgment of the trial court.

Larry Paul Koffman v. State of Tennessee
M2009-00951-CCA-R3-PC
Authoring Judge: Judge James Curwood Witt, Jr.
Trial Court Judge: Judge Michael R. Jones

The petitioner, Larry Paul Koffman, appeals from the Robertson County Circuit Court's denial of his petition for post-conviction relief. After reviewing his issues, we hold that his first issue has been previously determined and that all other issues are waived, and we affirm the order of the circuit court.

State of Tennessee v. Robert M. Linder
E2009-01927-CCA-R3-CD
Authoring Judge: Judge Norma McGee Ogle
Trial Court Judge: Judge David Reed Dugan

The Appellant, Robert M. Linder, filed a motion in the Blount County Circuit Court seeking a reduction in his sentence. The trial court denied the motion. The Appellant filed an appeal contesting the trial court's ruling. In response, the State filed a motion requesting that this court affirm the trial court's ruling pursuant to Rule 20, Rules of the Court of Criminal Appeals. Upon review of the record and the parties' briefs, we conclude that the motion was properly dismissed. Accordingly, the State's motion is granted and the judgment of the trial court is affirmed.

State of Tennessee v. Rodney E. Howard
M2009-02081-CCA-R3-CD
Authoring Judge: Judge Jerry L. Smith
Trial Court Judge: Judge Cheryl Blackburn

Appellant, Rodney E. Howard, was indicted by the Davidson County Grand Jury for first degree murder. After a jury trial, Appellant was convicted and sentenced to life in prison. After the denial of a motion for new trial, this appeal ensued. Appellant seeks resolution of the following issues on appeal: (1) whether the evidence was sufficient to convict Appellant of first degree murder; and (2) whether the trial court erred by refusing to admit the transcript of the preliminary hearing testimony of a defense witness. After a review of the record, we determine that the evidence was sufficient to convict Appellant of first degree murder. Additionally, we determine Appellant waived the issue regarding the admission of the transcript for failure to move for the introduction of the transcript under the rule of completeness. Moreover, any error with respect tot he transcript was harmless. Accordingly, the judgment of the trial court is affirmed.

State of Tennessee v. Frank Edward Nixon
M2009-01047-CCA-R3-CD
Authoring Judge: Judge Jerry L. Smith
Trial Court Judge: Judge Randall J. Wyatt, Jr.

Appellant, Frank Edward Nixon, Jr., was indicted by the Davidson County Grand Jury for attempted first degree murder. Pursuant to Hicks v. State, 945 S.W.2d 706 (Tenn. 1997); he pled guilty to attempted voluntary manslaughter, a Class D felony, in exchange for a negotiated, out-of-range sentence of eight years as a Range I, standard offender,. The trial court held a sentencing hearing to determine the manner of service of the sentence. After the hearing, the trial court denied alternative sentencing, finding that confinement was necessary: (1) to avoid depreciating the seriousness of the offense; (2) to protect society from Appellant's conduct; and (3) because measures less restrictive than confinement had been unsuccessfully applied to Appellant. Appellant filed a timely notice of appeal. On appeal, Appellant contends that the trial court improperly denied alternative sentencing. After a thorough review, we determine that the trial court properly denied alternative sentencing. Accordingly, the judgment of the trial court is affirmed. However, the matter is remanded to the trial court for entry of a corrected judgment to reflect that Appellant pled guilty to attempted voluntary manslaughter, a Class D felony.

State of Tennessee v. Paul Richardson
W2008-02506-CCA-R3-CD
Authoring Judge: Judge Camille R. McMullen
Trial Court Judge: Judge James C. Beasley, Jr.

The Defendant-Appellant, Paul Richardson, was convicted by a Shelby County Criminal Court jury of aggravated robbery, a Class B felony, aggravated burglary, a Class C felony, aggravated assault, a Class C felony, and unlawful possession of a handgun by a convicted felon, a Class E felony. He was sentenced as a persistent offender to twenty-five years for the aggravated robbery conviction, ten years for the aggravated burglary conviction, and fourteen years for the aggravated assault conviction. He was also sentenced as a career offender to six years for the unlawful possession of a handgun by a convicted felon conviction. The court ordered the sentences for the aggravated robbery and aggravated assault convictions to be served consecutively and the remaining sentences to be served concurrently, for an effective sentence of thirty-nine years. In addition, all of the sentences in this case were ordered to be served consecutively to a prior federal sentence for unlawful possession of a handgun by a felon. On appeal, Richardson argues that (1) the trial court erred in charging the jury on aggravated assault by intentionally or knowingly causing another to reasonably fear imminent bodily injury when the indictment charged him with aggravated assault by knowingly causing bodily injury to another, and (2) the evidence was insufficient to support his convictions. Upon review, we affirm the judgments for aggravated robbery, aggravated burglary, and unlawful possession of a handgun by a convicted felon, but we reverse and vacate the judgment for aggravated assault and remand this matter for the purpose of allowing the trial court to restructure the manner of service of the remaining sentences to include consecutive sentences, if the court deems it to be appropriate.

Charles Lee Rochell v. State of Tennessee
M2010-00150-CCA-R3-PC
Authoring Judge: Judge Jerry L. Smith
Trial Court Judge: Judge Cheryl Blackburn

Petitioner, Charles L. Rochelle, was indicted by the Davidson County Grand Jury for aggravated robbery, aggravated assault, evading arrest while operating a motor vehicle, reckless endangerment, and possession of marijuana. Petitioner pled guilty to evading arrest and was convicted of aggravated robbery and aggravated assault after a jury trial. The remaining charges of reckless endangerment and possession of marijuana were dismissed. As a result of the convictions and guilty plea, Petitioner was sentenced to twelve years for aggravated robbery, ten years for aggravated assault, and eight years for evading arrest. The sentences were ordered to be served consecutively, for a total effective sentence of thirty years. The convictions were affirmed on appeal. State v. Charles L. Rochelle, No. M2007- 00367-CCA-R3-CD, 2008 WL 762488 (Tenn. Crim. App., at Nashville, Mar. 24, 2008). Petitioner then sought post-conviction relief on the basis of ineffective assistance of counsel. After a hearing, the post-conviction court dismissed the petition. On appeal, Petitioner argues that the post-conviction court improperly dismissed the petition for post-conviction relief. After a review of the record, we determine that Petitioner has failed to show that he received ineffective assistance of counsel. Accordingly, the judgment of the post-conviction court is affirmed.

Raymond Ross v. State of Tennessee
W2010-00875-CCA-R3-PC
Authoring Judge: Judge James Curwood Witt, Jr.
Trial Court Judge: Judge Roy B. Morgan, Jr.

The petitioner, Raymond Ross, appeals the denial of his petition for post-conviction relief wherein he challenged his 2008 Henderson County Circuit Court convictions of reckless endangerment, aggravated assault, carjacking, and theft of property valued at more than $1,000 but less than $10,000. In this appeal, he claims that the trial court erred by imposing consecutive sentences based "on factors considered by the trial court which were not found by a jury." Because the interests of justice do not excuse the untimely filing of the notice of appeal in this case, the appeal is dismissed.

State vs. John Cote and Sarah Cote, In Re: Dr. Sandra Elkins
E2008-02483-CCA-R9-CD
Authoring Judge: Camille R. Mcmullen, J.
Trial Court Judge: Rex Henry Ogle, Judge
John and Sarah Cote, the Defendant-Appellees in this case, stand accused of offenses involving the death of a minor child. Dr. Sandra Elkins, the former 1 Knox County Medical Examiner, performed the autopsy of the victim in the Cotes' case. In a pre-trial motion for discovery, the Cotes requested disclosure of Dr. Elkins's personal medical records; namely, prescription records, drug treatment records, mental health records, University of Tennessee personnel records, an audit report of the East Tennessee Regional Forensic Center, and any records from the Tennessee Board of Medical Examiners. The trial court granted an in camera review of the requested information. Dr. Elkins originally sought an interlocutory appeal of the trial court's order granting the motion for discovery pursuant to Rule 9 of the Tennessee Rules of Appellate Procedure. Interpreting the Rule 9 appeal as a common law writ of certiorari, this court granted review. Following this court's order accepting the Rule 9 appeal as a writ of certiorari, the Cotes filed a petition for a writ of certiorari with the Tennessee Supreme Court, which was denied. In this appeal, Dr. Elkins and the State raise largely the same issues: (1) whether this appeal should be construed as a petition for a common law writ of certiorari pursuant to Tennessee Code Annotated section 27-8-101 or as a petition for a statutory writ of certiorari pursuant to Tennessee Code Annotated section 27-8-102, or both; and (2) whether the trial court erred by ordering Dr. Elkins's personal records to be disclosed for an in camera inspection. Because the Cotes failed to make a plausible showing that the requested information contained material evidence that was favorable to their defense, we reverse the trial court's order permitting an in camera review of the records and remand the case.

Fred H. Gillham, Sr. v. Scepter, Inc.
M2009-01728-COA-R3-CV
Authoring Judge: Patricia J. Cottrell, P.J., M.S.
Trial Court Judge: Robert E. Burch, Judge
The owner of a parcel which has public road access via an easement appeals the trial court's decision regarding its width. The trial court found that the easement narrows from 60 feet to 30 feet along its course. The deed unambiguously states the easement is 60 feet in width. Reference in the deed to another narrower easement relied on by the trial court has no effect on the access easement width being described. Accordingly, we reverse.

Anthony Murray v. Charlotte Murray
M2009-01576-COA-R3-CV
Authoring Judge: Presiding Patricia J. Cottrell
Trial Court Judge: Chancellor Charles K. Smith

The trial court transferred primary residential placement of an eight year old girl from her mother to her father, finding that the mother's post-divorce conduct, including evidence of drug use and sexual indiscretions, amounted to a material change of circumstances, and that it was in the child's best interest for the father to become her primary residential parent. Because the evidence does not preponderate against the trial court's findings, we affirm.

Natalie Hagan v. Michael Phipps, et al.
M2010-00002-COA-R3-CV
Authoring Judge: Andy D. Bennett, J.
Trial Court Judge: Clara W. Byrd, Judge
This appeal involves claims by a home purchaser against a licensed contractor and a business associate of the unlicensed builder who built the home in question and sold it to the plaintiff. The trial court granted the contractor defendant's motion for summary judgment on all claims against him based upon its conclusions that the unlicensed builder was not the agent of the licensed contractor and that there was no predicate tort for civil conspiracy because the builder intended to use the house for his personal residence. Because we find that there are issues of material fact that must be resolved, we reverse the trial court's grant of summary judgment.

Antonio L. Fuller v. State of Tennessee
M2008-01421-CCA-R3-PC
Authoring Judge: Judge Thomas T. Woodall
Trial Court Judge: Judge J. Randall Wyatt, Jr.

Petitioner, Antonio L. Fuller, appeals the post-conviction court's dismissal of his petition for post-conviction relief in which he alleged the ineffective assistance of trial and appellate counsel. Specifically, Petitioner contends that trial counsel's assistance was ineffective because he failed to (1) object to the trial court's instruction to the jury concerning the lesser included offense of aggravated kidnapping; (2) object to the trial court's consideration of Petitioner's prior convictions in determining his sentencing range and the length of his sentence; and (3) failed to raise these issues in the motion for new trial. Petitioner contends that appellate counsel's assistance was ineffective because he failed to raise these issues on appeal. Petitioner also contends that the length of his sentence violates the principles set forth in Blakely v. Washington, 542 U.S. 296, 124 S. Ct. 2531 (2004) and asks this Court to grant him a new sentencing hearing. After a thorough review, we affirm the judgment of the post-conviction court.

State of Tennessee v. Orlando Daniel Garcia
W2009-00164-CCA-R3-CD
Authoring Judge: Judge John Everett Williams
Trial Court Judge: Judge Joseph H. Walker, III

The defendant, Orlando Daniel Garcia, was convicted by a Tipton County jury of facilitation of first degree murder, a Class A felony, and possession of a Schedule VI controlled substance with intent to deliver, a Class E felony, and was sentenced to concurrent sentences of nineteen years and eighteen months for the respective convictions. On appeal, the defendant has raised three issues for our review: (1) whether the evidence was sufficient to support the conviction for facilitation of first degree murder; (2) whether the trial court erred in admitting portions of a video tape of the crime into evidence; and (3) whether the trial court erred in admitting evidence that the defendant purchased and wore a shirt with a Superman logo shortly after the incident. Following review of the record, we affirm the judgments of convictions.

State of Tennessee v. Donald Eugene O'Neal, Jr.
M2010-00191-CCA-R3-CD
Authoring Judge: Presiding Judge Joseph M. Tipton
Trial Court Judge: Judge Michael R. Jones

The Defendant, Donald Eugene O'Neal, Jr., was sentenced as a Range I, standard offender to twelve years' confinement for attempted especially aggravated robbery, a Class B felony; to four years' confinement for reckless homicide, a Class D felony; and to three years' confinement for delivery of a schedule II drug, a Class C felony; all to be served consecutively for an effective sentence of nineteen years. On appeal, the Defendant contends that the sentences are excessive. The judgments of the trial court are affirmed.

Steven Williams v. United Parcel Service, et al.
M2009-02334-WC-R3-WC
Authoring Judge: Justice William C. Koch, Jr.
Trial Court Judge: Chancellor C.K. Smith

This workers’ compensation appeal has been referred to the Special Workers’ Compensation Appeals Panel. An employee who sustained a compensable injury to his left knee in 2006 filed suit in the Chancery Court for Wilson County seeking to recover benefits for an additional injury to his right knee allegedly caused by over-reliance on his right leg as a result of the earlier injury to his left knee. The employer denied liability and sought to introduce at trial a Medical Impairment Registry (“MIR”) report prepared in accordance with Tenn. Code Ann. § 50-6-204(d)(5) (Supp. 2009). The trial court sustained the employee’s objection to the introduction of the MIR report. Following a bench trial, the trial court determined that the 2006 injury to the employee’s left knee was compensable and awarded the employee 27% permanent partial impairment to each leg. On this appeal, the employer asserts that the trial court erred by excluding the MIR report, by finding that the injury to the employee’s right knee was a new, compensable injury, and by basing its award on the impairment rating of the employee’s physician. We affirm the judgment.

William J. Reinhart v. Geico Insurance
M2009-01989-COA-R3-CV
Authoring Judge: Patricia J. Cottrell, P.J., M.S.
Trial Court Judge: Franklin L. Russell, Judge
The plaintiff owned a 1988 Porsche that was damaged by a collision with a deer. His insurer offered him $6,000 under his policy, after determining that the cost of repair was greater than the cash value of the car. The plaintiff, acting pro se, sued the insurer, and attempted to prove at trial that the auto was worth more than the insurer offered. After the plaintiff rested his case, the insurer moved for a directed verdict because the plaintiff had not introduced the insurance policy into evidence. The trial court granted the motion. The plaintiff argues on appeal that he did not intend to rest his case and that in any event the trial court should have allowed him to reopen his proof so he could introduce the insurance policy. Because there is neither a transcript of the proceedings nor a Rule 24 Statement of the Evidence in the appellate record, we must affirm the trial court.

Christopher Smith v. State of Tennessee
W2009-01228-CCA-R3-PC
Authoring Judge: Judge John Everett Williams
Trial Court Judge: Judge Paula Skahan

The petitioner, Christopher Smith, appeals the denial of his petition for post-conviction relief. On appeal, he argues that his trial counsel was ineffective and that his due process rights were violated when the trial court failed to grant a severance. After careful review, we affirm the judgment from the post-conviction court.

David A. Lufkin, Sr. vs. Christopher W. Conner
E2009-01823-COA-R3-CV
Authoring Judge: Judge D. Michael Swiney
Trial Court Judge: Judge Dale C. Workman

David A. Lufkin, Sr. ("Lufkin") sued attorney Christopher W. Conner ("Conner") for legal malpractice in January of 2009. Conner filed a motion for summary judgment. After a hearing, the trial court entered an order finding and holding, inter alia, that Lufkin knew or reasonably should have known of the existence of the facts forming this cause of action by September of 2007, and that Lufkin's complaint filed in January of 2009 was barred by the applicable statute of limitations. Lufkin appeals to this Court. We affirm.

Leslie Louise Miller vs. Jeffrey Todd Miller
E2009-02252-COA-R3-CV
Authoring Judge: Charles D. Susano, Jr., J.
Trial Court Judge: Kindall T. Lawson, Judge
Leslie Louise Miller ("Wife") filed this action for divorce. Jeffrey Todd Miller ("Husband") coupled a counterclaim for divorce with his answer. Wife admitted inappropriate marital conduct in her answer. The parties had been married for 15 years and had two minor children. They stipulated to a division of all of their property except the marital residence, about which there remained unresolved issues. After three days of trial, the court granted Husband a divorce on the grounds of inappropriate marital conduct. The court awarded him the marital residence and ordered him to pay Wife one half of the equity, which the court determined to be $47,092.50, minus $4,500 representing that portion of Husband's attorney's fees assessed to Wife. The court awarded "primary parentage" of the children to Husband and gave Wife, a teacher at the children's school, parenting time limited to every other weekend and one weeknight every week. Wife appeals. The judgment of the trial court is affirmed in part and vacated in part.

Angela Merriman vs. Brian Merriman
E2010-00013-COA-R3-CV
Authoring Judge: D. Michael Swiney, J.
Trial Court Judge: O. Duane Slone, Judge
Angela Merriman ("Petitioner") filed for and obtained an ex parte order of protection against her husband, Brian Merriman ("Respondent"). Pursuant to statute, a hearing was conducted on whether to dissolve or to extend the order of protection. In accordance with Tenn. Code Ann. _ 36-3-605(b), a trial court has two options at such a hearing: (1) to dissolve the order of protection; or (2) to extend the order of protection for a definite period of time not to exceed one year. With respect to taxing costs, Tenn. Code Ann. _ 36-3-617(a) expressly prohibits taxing costs against a victim, even if the order of protection is dissolved. If the order of protection is extended, the costs must be taxed against the respondent. In the present case, following the hearing on whether to extend or dissolve the order of protection, the trial court instead entered a mutual restraining order and taxed costs equally to both parties. Because neither action was authorized by statute, we vacate the judgment of the trial court and remand for further proceedings consistent with this Opinion.

Darlene Manis Brown vs Allan Craig Vaughn
E2010-00373-COA-R3-CV
Authoring Judge: Judge Charles D. Susano, Jr.
Trial Court Judge: Judge L. Marie Williams

Darlene Manis Brown, a Tennessee resident, filed a petition in the trial court seeking a protective order against her former boyfriend, Allan Craig Vaughn, a resident of the state of Georgia. Based upon her petition, the trial court issued an ex parte order of protection. Later, following an evidentiary hearing, the protective order was extended for one year. Vaughn appeals. He challenges the sufficiency of the evidence supporting the order of protection and claims the trial court lacked jurisdiction of this dispute. We affirm.

In Re Betty P., et al
E2010-00318-COA-R3-PT
Authoring Judge: Charles D. Susano., Jr., J.
Trial Court Judge: Sharon M. Green, Judge
This is a termination of parental rights case. Macaria L. ("Mother") appeals from the order terminating her parental rights to her five minor children and awarding full guardianship to the State of Tennessee. At the conclusion of a bench trial, the court ordered Mother's parental rights terminated upon its finding that she had abandoned her children by willfully failing to pay child support. Mother appeals. We conclude that the record contains clear and convincing evidence supporting the termination of Mother's rights. Accordingly, we affirm.

Mary Lawson v. Brad Lawson
M2009-00537-COA-R3-CV
Authoring Judge: Presiding Judge Patricia J. Cottrell
Trial Court Judge: Juidge C. L. Rogers

Uninsured motorist carrier voluntarily tendered the limits of its liability coverage into the probate proceeding administering the decedent's estate and not in the wrongful death tort action. The trial court dismissed the carrier from this wrongful death tort action since it had tendered its limits of liability. We find the dismissal was in error since any voluntary tender of insurance proceeds for wrongful death should be made into the wrongful death tort case, and tendering the limits elsewhere is not grounds for dismissal.

Rex Hubbard v. Helen Louise Hubbard
M2009-00780-COA-R3-CV
Authoring Judge: Presiding Judge Patricia J. Cottrell
Trial Court Judge: Judge Thomas W. Graham

Wife argues on appeal that the trial court erred by awarding her a little more than half the parties' assets and alimony of $3,000 per month for 7 years while the physician Husband's earning capacity is considerably more than Wife's. During the parties' almost forty (40) year marriage, Wife reared 7 children and focused primarily on the family finances and not her individual finances. We agree with Wife and award her an additional $300,000 in marital assets. The matter is remanded to the trial court to determine reallocation of assets in accordance with this opinion.