State of Tennessee v. Ned Jackson
W2000-02589-CCA-R3-CD
Authoring Judge: Judge Robert W. Wedemeyer
Trial Court Judge: Judge Chris B. Craft

The Defendant, Ned Jackson,¹ was convicted by a jury of aggravated robbery, and the trial court sentenced him to ten years in the Tennessee Department of Correction. The Defendant now appeals, arguing the following: (1) that insufficient evidence of the Defendant’s identity as the culprit was presented to convict the Defendant of aggravated robbery and (2) that the trial court erred in refusing to instruct the jury on the lesser-included offenses of theft and aggravated assault. Finding no error, we affirm the judgment of the trial court.

State of Tennessee v. Rayfield Brice
W2000-02601-CCA-R3-CD
Authoring Judge: Judge Joe G. Riley
Trial Court Judge: Judge Carolyn Wade Blackett

A jury convicted the defendant of aggravated robbery, and the trial judge sentenced him to 12 years incarceration as a Range I standard offender. In this appeal, the defendant contends: (1) the evidence was insufficient to sustain his conviction; (2) his custodial statement should have been suppressed; (3) a juror failed to respond to a voir dire question concerning prior involvement in the legal system, thereby depriving the defendant of a fair and impartial jury; (4) the trial court erroneously disallowed admission of a crime scene report; and (5) his sentence was excessive. After a thorough review of the record, we affirm the judgment of the trial court.

State of Tennessee v. Ned Jackson - Dissenting
W2000-02589-CCA-R3-CD
Authoring Judge: Judge Norma McGee Ogle
Trial Court Judge: Judge Chris B. Craft

While I agree with the majority’s conclusion that the evidence adduced at trial is sufficient to support the jury’s verdict of guilt of aggravated robbery, I respectfully disagree with its conclusion that the trial court properly declined to instruct the jury on lesser-included offenses.
Currently, members of this court are divided concerning the correct interpretation of the two-step process set forth by our supreme court in State v. Burns, 6 S.W.3d 453, 469 (Tenn. 1999), for determining if the evidence adduced at trial justifies jury instructions on lesser-included offenses. See, e.g., State v. Linnell Richmond, No. E2000-01545-CCA-R3-CD, 2001 WL 1222247 (Tenn. Crim. App. at Knoxville, October 15, 2001). I am largely in agreement with the position expressed by Judge Smith in his opinion in Richmond, No. E2000-01545-CCA-R3-CD, 2001 WL 1222247, at *21 (concurring in part and dissenting in part)(footnote omitted), that [a] reading of the recent cases of [State v. Bowles, 52 S.W.3d 69, 80 (Tenn. 2001), and State v. Ely, 48 S.W.3d 710, 724-725 (Tenn. 2001),] leads one to the inescapable conclusion that our high court has mandated that lesser-included offense instructions be given anytime the evidence is sufficient to support a conviction for these offenses. This means that anytime the proof is sufficient for a conviction of the indicted offense, the proof will a fortiori be sufficient for a conviction of the lesser-included offenses. . . . As a practical matter, this in turn means that it will almost always be error to fail to instruct the jury as to all lesser-included offenses of the indicted offense. Thus, the only real inquiry, in my opinion, in virtually all of the cases raising the lesser-included offense issue is whether the error in failing to instruct on the lesser offenses can be said to be harmless beyond a reasonable doubt.

State of Tennessee v. James Whitelow and Robert Robertson
W2001-00713-CCA-R3-CD
Authoring Judge: Judge Joe G. Riley
Trial Court Judge: Judge Joseph H. Walker, III

Defendants James Whitelow and Robert Robertson appeal their convictions for possession of cocaine in an amount over 26 grams with intent to deliver. Both argue the evidence was not sufficient to support their convictions. Whitelow also argues the forensic report was erroneously admitted into evidence, and the jury's verdict was the result of passion and prejudice caused by the prosecutor's statements regarding Whitelow's alias nickname. We affirm the judgment of the trial court.

Shelley (Douglas) Stevenson, v. Michael Kingston Stevenson
01A01-9506-CV-00230
Authoring Judge: Judge Samuel L. Lewis
Trial Court Judge: Judge Muriel Robinson

This is an appeal by defendant, Michael Kingston Stevenson (Husband), from the trial court's award of alimony in solido, alimony in futuro, the amount of child support award, and the award of additional alimony in solido of $9,700.00 for plaintiff, Shelly Sue Douglas Stevenson's (Wife), attorney's fee.

Sholodge Franchise Systems, INc., v. McKibbon Brothers, Inc.
01A01-9506-CH-00240
Authoring Judge: Presiding Judge Henry F. Todd
Trial Court Judge: Chancellor C. Allen High

The plaintiff counter-defendant, ShoLodge Franchise Systems, Inc. (hereafter "Sholodge") has appealed from a jury verdict of $327,272 in favor of the defendant counterplaintiff McKibbon Brothers, Inc. (hereafter McKibbon) for damages for breach of a franchise contract.

Johnny W. Raines, v. Charles Traughber, Chairman, Tennessee Board of Paroles, et al.
01A01-9508-CH-00364
Authoring Judge: Judge Samuel L. Lewis
Trial Court Judge: Chancellor Robert S. Brandt

This is an appeal by petitioner, Johnny W. Raines, from the trial court's dismissal of his petition for certiorari from a decision of the Tennessee Board of Paroles (Board).

Richard C. King, and Wife, Kimberly King, v. W.D. Schock, Inc., South Central Bell Telephone Co, A/K/A Bellsouth Telecommunications, Inc., and Charles LaRue, et al.
01A01-9505-CV-00210
Authoring Judge: Judge Samuel L. Lewis
Trial Court Judge: Judge Walter C. Kurtz

This is an appeal by plaintiffs/appellants, Richard and Kimberly King, from the trial court's order granting summary judgment to defendants/appellees, W. D. Schock, Co. ("Schock"), South Central Bell Telephone Co. a/k/a Bell South Telecommunications, Inc. ("Bell South"), and Charles LaRue.

Town of Morrison, v. Warren County, Tennessee
01A01-9508-CH-00332
Authoring Judge: Presiding Judge W. Frank Crawford
Trial Court Judge: Judge Jeffrey F. Stewart

This appeal involves a dispute between Warren County, Tennessee and the Town of Morrison, a municipality located within Warren County, regarding the disposition of the revenue generated by the county local option sales tax. On March 21, 1988, plaintiff, Town of Morrison (hereinafter Morrison), filed a complaint for declaratory judgment against defendant, Warren County. The
complaint alleges that under T.C.A. § 67-6-712 (Supp. 1995), a justiciable controversy exists between the parties concerning their respective rights to distribution of the county local option sales tax revenue. The complaint avers that the Warren County local option sales tax was adopted in 1969 and increased in 1976 and 1985. Morrison alleges that since 1969 the tax revenues
have been collected by the Tennessee Department of Revenue and distributed to Warren County, but Warren County has refused to pay Morrison its share of the taxes as required by T.C.A. § 67-6-712 (2)(B). The complaint seeks a declaration of the rights of the parties to the sales tax revenues, and an accounting of, and a judgment for, Morrison's share of the local option sales tax.

Kentucky-Tennessee Clay Company, v. Joe Huddleston, Commissioner of Revenue, State of Tennessee
01A01-9508-CH-00347
Authoring Judge: Judge Alan E. Highers
Trial Court Judge: Chancellor Robert S. Brandt

In this case, we are presented with the issue of whether a private act is invalid as being in conflict with the general law addressing the same subject.Kentucky-Tennessee Clay Company, v. Joe H

State of Tennessee v. Roger R. Carter
W2001-00135-CCA-R3-CD
Authoring Judge: Judge Joe G. Riley
Trial Court Judge: Judge Bernie Weinman

The defendant was convicted of the premeditated first degree murder of his wife and sentenced to life imprisonment without the possibility of parole. In this appeal the defendant contends the evidence was insufficient to sustain his conviction. After a thorough review of the record, we affirm the judgment of the trial court.

State of Tennessee v. Anderson Toliver
E2001-00584-CCA-R3-CD
Authoring Judge: Judge Alan E. Glenn
Trial Court Judge: Judge Stephen M. Bevil

The defendant was convicted in two indictments of aggravated child abuse and sentenced to concurrent nine-year sentences. He timely appealed, arguing that the evidence was insufficient, that the trial court erred in consolidating the indictments, in permitting evidence as to other similar offenses, and in not properly instructing the jury as to various matters, including lesser-included offenses. We conclude that any errors in this regard were harmless. Accordingly, we affirm the judgment of the trial court.

State of Tennessee v. Anderson Toliver - Concurring
E2001-00584-CCA-R3-CD
Authoring Judge: Judge Joseph M. Tipton
Trial Court Judge: Judge Stephen M. Bevil

I concur in the result reached and most of the reasoning used in the majority opinion.  However, I would hold that the defendant was entitled to an instruction on attempted aggravated child abuse under the evidence presented. As the majority opinion holds though, under State v. Williams, 977 S.W.2d 101, 106 (Tenn. 1988), the failure to give the instruction was harmless beyond a reasonable doubt.

State of Tennessee v. Joseph J. Levitt, Jr.
E2000-03051-CCA-R3-CD
Authoring Judge: Judge Alan E. Glenn
Trial Court Judge: Judge E. Shayne Sexton

The defendant drove up behind a vehicle which had halted because of a driver's license roadblock near Knoxville. He then proceeded onto the right shoulder to get around that vehicle and was stopped by the Tennessee Highway Patrol officer conducting the roadblock. What next occurred was highly disputed, but the events culminated with the defendant's being sprayed with Freeze, some of which was deflected back onto the officer, partially incapacitating him also. The defendant was charged with resisting arrest, reckless driving, and failure to carry and display a driver's license on demand. The reckless driving charge was nolle prosequi and, following a jury trial, the defendant was found not guilty of resisting arrest but was convicted of the driver's license charge, sentenced to ten days confinement, which was suspended, and ordered to pay a $50 fine and court costs. He timely appealed the conviction, arguing that the roadblock was unconstitutional. Based upon our review, we conclude that the roadblock was unconstitutional and that the officers lacked probable cause to stop the defendant's vehicle. Accordingly, we reverse the conviction and dismiss the charge.

Kenneth McArthur Johnson v. State of Tennessee
E2001-00068-CCA-R3-PC
Authoring Judge: Judge J. Curwood Witt, Jr.
Trial Court Judge: Judge James E. Beckner
Aggrieved of his second degree murder conviction, the petitioner seeks post-conviction relief, which was denied by the lower court after an evidentiary hearing. On appeal, the petitioner presents several issues of the ineffective assistance of counsel. We affirm the denial of post-conviction relief.

Daryl K. Collins v. Tower Automotive Products
W2001-00480-WC-R3-CV
Authoring Judge: L. Terry Lafferty, Senior Judge
Trial Court Judge: Joe C. Morris, Chancellor
This workers' compensation appeal has been referred to the Special Workers' Compensation Appeals Panel of the Supreme Court in accordance with Tennessee Code Annotated _ 5-6- 225(e)(3) for hearing and reporting to the Supreme Court of findings of fact and conclusions of law. The trial court found Plaintiff suffered permanent impairment and awarded Plaintiff twenty-two percent (22%) permanent partial impairment to each upper extremity. Defendant asserts that the award of twenty- two percent (22%) was excessive and not supported by the evidence. From our review of the trial record, we affirm the trial court's judgment as modified. Tenn. Code Ann. _ 5-6-225(e) (1999) Appeal as of Right; Judgment of the Chancery Court is Affirmed as Modified. L. TERRY LAFFERTY, SR. J., in which JOE C. LOSER, JR., SP. J., and JANICE M. HOLDER, J., joined. Deana C. Seymour, Jackson, TN, for the appellant, Tower Automotive Products Company, Inc., d/b/a Tower Automotive. George L. Morrison, III, Jackson, TN, for the appellee, Daryl Collins. MEMORANDUM OPINION TRIAL TESTIMONY Daryl Collins, age 39, married with two sons, has been employed at Tower Automotive Company, Inc., d/b/a Tower Automotive, hereinafter Defendant, for the past 17 years. Plaintiff's education consists of a high school diploma and an associate's degree from Jackson State Community College. Plaintiff's duties were primarily welding heavy truck parts. In 1998, Plaintiff began suffering from pain in both his right and left wrists. Plaintiff advised Defendant in January of 1999, and underwent conservative treatment. Defendant furnished him with the names of three physicians and was seen by Dr. Lewis Murphy, who referred Plaintiff to Dr. Ronald Bingham for a nerve conduction examination. Dr. Bingham referred Plaintiff to Dr. Michael Cobb when the test indicated median neuropathy at both wrists, consistent with carpal tunnel syndrome. Dr. Cobb advised Plaintiff that carpal tunnel release may be necessary for both wrists. On January 2, 2, Dr. Cobb performed carpal tunnel release on the right wrist and then on February 8, 2, carpal tunnel release was performed on Plaintiff's left wrist. Plaintiff returned to restricted duty for six weeks before Dr. Cobb released him to regular duty as a welder. Although Plaintiff returned to regular duty, he stated that his hands still hurt every day, however surgery did correct the numbness. He advised the plant nurse, Debbie Bowlin, that his hands hurt occasionally while grinding parts. At home, Plaintiff stated that he had difficulty playing (wrestling) with his eight-year-old son. Due to vibration, he cannot use a weedeater for long periods of time because of numbness. When asked about his grip strength, Plaintiff responded, "As far as grip strength, I've lost quite a bit of grip strength. It's things that I just took for granted before." Plaintiff estimated that he lost thirty percent (3%) grip strength in his hands since the injury. During cross-examination, Plaintiff agreed that he had received a pay raise since his return to work and is now making a higher hourly rate. Also, Plaintiff acknowledged that he participated in little league activities, throwing a football with his son, and taking a family vacation to Disney World. In behalf of Defendant, co-workers of Plaintiff, Kenneth Gilbert, Jeff Lowery, and supervisor, Sam Luter, testified that Plaintiff was a welder in heavy truck building. All agreed that Plaintiff returned to work, did a fine job, never made any complaints and was a good worker. Luter stated that Plaintiff could do various jobs in the plant. Also, Luter agreed that he had come to work feeling bad, but never complained to his co-workers. MEDICAL EVIDENCE For the record, the C-32 form of Dr. Michael Cobb was made an exhibit. Dr. Cobb's report reflect that Plaintiff was referred to him by Dr. Ronald Bingham as the result of a nerve conduction examination. The examination indicated a diagnosis of carpal tunnel syndrome on December 19, 1999. Dr. Cobb saw Plaintiff on January 12, 2, with a complaint of pain, numbness in both hands, with the right hand worse than the left. Dr. Cobb diagnosed Plaintiff with severe carpal tunnel syndrome, both hands, and recommended surgery for the best chance of a recovery. Otherwise, if decompression of the nerve is delayed, there is more chance that Plaintiff will have some permanent neuropathy. On January 2, 2, Dr. Cobb performed endoscopic carpal tunnel release on the right hand. On February 1, 2, Plaintiff's only complaint was soreness to the right hand following surgery. Plaintiff was ordered to commence grip exercises. Plaintiff agreed to undergo the same procedure on his left hand. On February 8, 2, Dr. Cobb performed endoscopic carpal tunnel release on the left hand. Dr. Cobb's report reflects that -2-

Martha I. Johnson v. Knox Co. Board of Educ.,
E2000-02513-WC-R3-CV
Authoring Judge: John K. Byers, Sr. J.
Trial Court Judge: Daryl R. Fansler, Chancellor
This workers' compensation appeal has been referred to the Special Workers' Compensation Appeals Panel of the Supreme Court in accordance with Tennessee Code Annotated _ 5-6- 225(e)(3) for hearing and reporting to the Supreme Court of findings of fact and conclusions of law. The trial court found the plaintiff is totally and permanently disabled and further found the Knox County Board of Education liable for 6 percent of the award and the Second Injury Fund liable for 4 percent. We affirm the judgment of the trial court. Tenn. Code Ann. _ 5-6-225(e) (1999) Appeal as of Right; Judgment of the Chancery Court is Affirmed JOHN K. BYERS, SR. J., in which E. RILEY ANDERSON, J., and ROGER E. THAYER, SP. J., joined. Paul G. Summers, Nashville, Tennessee, for the appellant Second Injury Fund. Stephen E. Yeager, Knoxville, Tennessee, for the appellees Knox County Board of Education and Tennessee School Boards Association. Thomas S. Scott, Jr., Knoxville, Tennessee, for the appellee Martha I. Johnson. MEMORANDUM OPINION Review of the findings of fact made by the trial court is de novo upon the record of the trial court, accompanied by a presumption of the correctness of the findings, unless the preponderance of the evidence is otherwise. TENN. CODE ANN. _ 5-6-225(e)(2); Stone v. City of McMinnville, 896 S.W.2d 548, 55 (Tenn. 1995). Questions of law are reviewed de novo without a presumption of correctness. Peace v. Easy Trucking Co., 38 S.W.3d 526 (Tenn. 21). Facts The plaintiff was 39 years of age at the time of trial. She did not complete high school and did not pass the GED exam. She completed nursing training and took courses in business technology through the Tennessee Technology Center. She is not married and has one child. The plaintiff had various medical conditions prior to the injury_sustained in 1998_at issue in this case, including dyslexia, epilepsy (which she had from birth), a back sprain sustained in 199 while working as a nurse's assistant, and a prior back injury suffered while working for the defendant School Board in 1993, and a stroke-like episode in 1996 caused by toxic levels of Dilantin in her system. In addition, the plaintiff suffers from choreoathetosis or truncal ataxia, a condition that causes her to have involuntary movements. When the plaintiff first went to work for the defendant School Board in December of 1991, she listed the previous back injury that she sustained while working for a nursing home. She also described her epileptic condition. The plaintiff did, however, in her application state that she suffered no disability resulting from the injury at the nursing home or from the epilepsy and that she could perform her duties as a custodian. As a result of the 1993 injury, the plaintiff received temporary total benefits and medical payments. She returned to work but did not claim any permanent disability benefits from this injury. In 1995 or 1996, the plaintiff suffered a toxic episode from a build-up of Dilantin in her system. The effect on the plaintiff was similar to a stroke. As a result of this episode, the plaintiff lost control over her left side, experienced a lack of feeling in her feet, and her left arm became drawn up. The plaintiff was hospitalized for this and was treated for a considerable time. After some recovery from the episode, the plaintiff wished to return to work. Her doctor released her to return to work, but placed restrictions in her written release. When the plaintiff presented her written medical release to William Anderson, III, the person who reviewed medical reports, he told the plaintiff she could not return to work with the restrictions. The plaintiff then persuaded her doctor to remove the restrictions and she returned to Mr. Anderson, who allowed her to return to work. Mr. Anderson testified "if the doctor sends a slip and says no restrictions, then I have to let them back to work." Mr. Anderson testified he knew the plaintiff was not able to do her work before the injury of 1998, which is the subject of this case. When asked if she was unable to do the job prior to the 1998 injury he responded, "no doubt about it." Mr. Anderson testified "the only reason I kind of buried my head to it [the disabilities of the plaintiff] was she had been a good employee." He went on to explain she needed to work and others helped her. All parties agree the School Board had a written policy of not allowing anyone with medical -2-

State of Tennessee v. Clifton Shelton
W2000-00610-CCA-R3-CD
Authoring Judge: Presiding Judge Gary R Wade
Trial Court Judge: Judge Carolyn Wade Blackett

The defendant, Clifton Shelton, pled guilty to simple possession of marijuana, a Class A misdemeanor. The trial court sentenced the defendant to 11 months and 29 days, requiring him to spend four months in a halfway house and the balance of his sentence on probation. The defendant argues that the trial court erred by failing to suspend his entire sentence. Because the trial court relied on the defendant's prior grant of judicial diversion in denying full probation, the judgment is modified and the cause is remanded to the trial court.

State of Tennessee v. Darrin Fleming
W2001-00028-CCA-R3-CD
Authoring Judge: Presiding Judge Gary R Wade
Trial Court Judge: Judge James C. Beasley, Jr.

The defendant, Darrin Fleming, was convicted of aggravated burglary, assault, and criminal responsibility for facilitation of robbery. The trial court imposed an effective sentence of six years. In this appeal of right, the defendant contends that the evidence was insufficient to support his convictions for aggravated burglary and assault and that the trial court erred by refusing to give a special instruction on criminal responsibility. The judgments of the trial court are affirmed.

State of Tennessee v. Bernard Keys
W2000-03138-CCA-R3-CD
Authoring Judge: Judge Joe G. Riley
Trial Court Judge: Judge Joseph B. Dailey

The Shelby County Grand Jury returned two indictments against the defendant, one for aggravated burglary and one for misdemeanor evading arrest. The trial court consolidated the indictments prior to trial pursuant to Tenn. R. Crim. P. 8(b). The defendant was found guilty of both charges by a Shelby County jury. In this appeal, the defendant contends (1) the evidence is insufficient to sustain his convictions; and (2) the trial court improperly consolidated the indictments. After a thorough review of the record, we affirm the judgments of the trial court.

Eric Wright v. State of Tennessee - Dissenting
W2001-00386-CCA-R3-PC
Authoring Judge: Judge Joseph M. Tipton
Trial Court Judge: Judge Joseph B. Dailey

I respectfully dissent. Based upon the record before us, I believe that the trial court was justified in dismissing the petition without an evidentiary hearing. I do not believe that our supreme court intended in Williams v. State, 44 S.W.3d 464, 471 (Tenn. 2001), to provide a hearing for people in the petitioner’s situation. In Williams, the record indicated that Williams’ attorney’s actions may have led Williams to believe that supreme court review was timely sought, thereby potentially misleading him about when the statute of limitations would run.

Carlos Haywood v. State of Tennessee
W2001-00451-CCA-R3-PC
Authoring Judge: Judge David G. Hayes
Trial Court Judge: Judge Chris B. Craft

The Appellant, Carlos Haywood, appeals from the dismissal of his petition for post-conviction relief. Haywood was convicted by a Shelby County Criminal Court Jury of felony murder and attempted especially aggravated robbery, and was sentenced to life imprisonment plus ten years. On appeal, Haywood argues that he received ineffective assistance of counsel. After review, we affirm the judgment of the post-conviction court dismissing the petition.

State of Tennessee v. Joe Scott
W2001-00589-CCA-R3-CD
Authoring Judge: Presiding Judge Gary R Wade
Trial Court Judge: Judge Joseph B. Dailey

The defendant, Joe Scott, was convicted of aggravated robbery. The trial court imposed a Range II sentence of 19 years. In this appeal of right, the defendant challenges the sufficiency of the evidence. The judgment is affirmed.

Eric Wright v. State of Tennessee
W2001-00386-CCA-R3-PC
Authoring Judge: Judge Robert W. Wedemeyer
Trial Court Judge: Judge Joseph B. Dailey

The Petitioner filed a petition for post-conviction relief on December 11, 2000, in which he attacked convictions entered in September 1990 and upon which final appellate action was taken in 1992. The post-conviction court dismissed the petition without a hearing, because it was filed outside the
statute of limitations. Concluding that the post-conviction court erred by dismissing the petition without an evidentiary hearing, we reverse and remand to the post-conviction court for such a hearing.

State of Tennessee v. Mario A. Johnson
W2001-00372-CCA-R3-CD
Authoring Judge: Presiding Judge Gary R Wade
Trial Court Judge: Judge John P. Colton, Jr.

The defendant, Mario A. Johnson, was convicted of facilitation to commit first degree murder and especially aggravated robbery. The trial court imposed a Range I sentence of 20 years for facilitation of first degree murder and a concurrent sentence of 23 years for especially aggravated robbery. In this appeal of right, the defendant challenges the sufficiency of the evidence. The judgments are affirmed.