State of Tennessee v. Kristi Dance Oakes
E2005-01668-CCA-R10-CD
Authoring Judge: Judge J. Curwood Witt, Jr.
Trial Court Judge: Judge Richard R. Vance

The defendant, Kristi Dance Oakes, stands charged in the Sevier County Circuit Court with one count of statutory rape. The district attorney general denied her application for pretrial diversion, an action upheld by the trial court upon certiorari review of that decision. The defendant obtained an interlocutory appeal from this court via Tennessee Rule of Appellate Procedure 10. Following our review, we vacate the order upholding the denial of pretrial diversion and remand the case to the trial court.

Pfizer, Inc. v. Ruth E. Johnson, Commissioner of Revenue for the State of Tennessee
M2004-00041-COA-R3-CV
Authoring Judge: Judge Frank G.Clement, Jr.
Trial Court Judge: Chancellor Carol L. McCoy

Pfizer, Inc. challenges the assessment of the additional rate of business tax under Tenn. Code Ann. § 67-4-709(b)(2)(B). It contends the sales in question, which were from one wholesaler to another wholesaler, were not within the definition of “wholesale sales” as the term is defined in Tenn. Code Ann. § 67-4-702(a)(19), and thus not subject to the additional business tax. The State of Tennessee contends sales, whether a “sale at retail” or a “sale at wholesale,” are taxable pursuant to the percentages set forth in Tenn. Code Ann. § 67-4-709(b)(2)(B). The facts are not disputed. Based upon a statutory interpretation, we find sales from one wholesaler to another wholesaler are not subject to the additional business tax under Tenn. Code Ann. § 67-4-709(b)(2)(B).

State of Tennessee v. Clifford A. Davis
M2005-00270-CCA-R3-CD
Authoring Judge: Judge David G. Hayes
Trial Court Judge: Judge Robert E. Burch

The Appellant, Clifford A. Davis, appeals the revocation of his probation by the Humphreys County Circuit Court. Davis' revocation stems from his violation of Rule 7 of the conditions of probation which provides: "I agree to a search, without a warrant, of my person, vehicle, property, or place of residence by any Probation/Parole officer or law enforcement officer, at any time." Davis does not deny that he refused his probation officer's request to search his residence. Rather, he argues that Rule 7 is unconstitutional in that it infringes upon his Fourth Amendment rights. Finding no constitutional error, the judgment of the trial court is affirmed.

Marvin Rainer v. David G. Mills, Warden
W2004-02676-CCA-R3-HC
Authoring Judge: Judge Thomas T. Woodall
Trial Court Judge: Judge Joseph H. Walker, III

Petitioner, Marvin Rainer, appeals from the trial court’s dismissal of his petition for writ of habeas corpus. In March 2001, Petitioner was convicted in Shelby County Criminal Court of one count of misdemeanor assault, two felony counts of forgery over five hundred dollars, one count of theft over a thousand dollars, and one count of forgery over a thousand dollars. Petitioner was sentenced to eleven months and twenty-nine days for the misdemeanor assault conviction, six years for each felony conviction of forgery over five hundred dollars, ten years for the felony conviction of theft over a thousand dollars, and ten years for the felony conviction of forgery over a thousand dollars.  According to the judgment forms, the trial court ordered the felony sentences to be served concurrently for a ten year sentence, with the misdemeanor sentence to be served consecutively, for an effective sentence of ten years, eleven (11) months, and twenty-nine (29) days, with all sentences to be served in the Tennessee Department of Correction. On October 15, 2004, Petitioner filed a petition for writ of habeas corpus in Lauderdale County Circuit Court. Petitioner alleged that his convictions were void because, inter alia, he received an illegal sentence. The trial court summarily dismissed the petition without an evidentiary hearing, finding that the issues raised by Petitioner were not proper subjects for habeas corpus relief. We affirm the judgment of the trial court.

State of Tennessee v. Betty Gouge
E2005-01358-CCA-R3-CD
Authoring Judge: Judge Joseph M. Tipton
Trial Court Judge: Judge Robert E. Cupp

The defendant, Betty Gouge, pled guilty to one count of sale of one-half gram or more of cocaine, a Class B felony, one count of possession with intent to sell one-half gram or more of cocaine, a Class B felony, and one count of possession with the intent to sell less than ten pounds of marijuana, a Class E felony. The Unicoi County Criminal Court sentenced her to eight years for each Class B felony and one year for the Class E felony to be served concurrently as a Range I, standard offender in the Department of Correction. The defendant appeals, contending that the trial court erred in denying her probation or alternative sentencing. We affirm the judgments of the trial court but we remand case number 5337, Count 3, to the trial court for the judgment to reflect that the defendant pled guilty and was found guilty.

In Re: Christian B., Nathaniel B., Stepan B., Reanne B., & Dolton B.
E2005-01439-COA-R3-PT
Authoring Judge: Judge Charles D. Susano, Jr.
Trial Court Judge: Judge Steven C. Douglas

The trial court terminated the parental rights of Mary Katherine W.B. ("Mother") and Christopher M.B. ("Father") with respect to their five minor children: Christian B. (DOB: August, 13, 1993), Nathaniel B. (DOB: August 11, 1996), Stepan B. (DOB: April 22, 1998), REanne B. (DOB: March 3, 1999), and Dolton B. (DOB: January 1, 2001). Mother and Father appeal, arguing that the evidence preponderates against the trial court's findings, stated to be made by clear and convincing evidence, that grounds for termination exist in this case. We affirm the trial court's judgment terminating the parental rights of the parents but vacate one of the bases upon which the trial court relied.

Marshall Tidwell v. Virginia Lewis, Warden
E2005-01933-CCA-R3-HC
Authoring Judge: Judge Norma McGee Ogle
Trial Court Judge: Judge Buddy D. Perry

The petitioner, Marshall Tidwell, pled guilty in the Dickson County Circuit Court to five counts of rape and three counts of sexual battery, and he received a total effective sentence of fifty years. Subsequently, the petitioner filed in the Bledsoe County Circuit Court a petition for a writ of habeas corpus. The habeas corpus court summarily dismissed the petition, which dismissal the petitioner appeals. The State filed a motion requesting that this Court affirm the habeas corpus court's denial of relief pursuant to Rule 20, Rules of the Court of Criminal Appeals. Upon review of the record and the parties' briefs, we conclude that the petition was properly dismissed. Accordingly, the State's motion is granted and the judgment of the habeas corpus court is affirmed.

R. V. Childers, v. Goodyear Tire & Rubber Co.
W2004-02127-WC-R3-CV
Authoring Judge: Special Judge Ron E. Harmon
Trial Court Judge: Chancellor W. Michael Maloan

This workers compensation appeal has been referred to the Special Worker’s Compensation
Appeals Panel in accordance with Tennessee Code Annotated § 50-6-225 (e)(3) for hearing and
reporting to the Supreme Court of findings of fact and conclusions of law. In this appeal, the
employer asserts the trial court erred in finding that the employee suffered permanent, total
disability as a result of an injury, which occurred on April 15, 1993, during the course of his
employment with Goodyear Tire and Rubber Company. We conclude that the evidence presented supports the findings of the trial judge and, in accordance with Tennessee Code Annotated §50-6-225(e)(2), affirm the judgment of the trial court.

State of Tennessee v. Scotty Henry Pace, Jr.
M2004-00139-COA-R3-CV
Authoring Judge: Judge Frank G. Clement, Jr.
Trial Court Judge: Judge Muriel Robinson

The defendant was found guilty of criminal contempt and sentenced to ten days in jail for violating an Order of Protection. He appeals, contending the evidence was insufficient. We agree.

Polygram Records, Inc., et al. v. Legacy Entertainment Group, LLC
M2003-02608-COA-R3-CV
Authoring Judge: Judge Frank G. Clement, Jr.
Trial Court Judge: Chancellor Claudia C. Bonnyman

Three competing parties claim rights to commercially exploit performances of legendary performer Hank Williams that were recorded and broadcast by WSM Radio in the 1950s. Polygram Records, Inc., claims exclusive phonograph exploitation rights, relying on a contract Williams entered into with its predecessor in interest, MGM Records. Legacy Entertainment Group, LLC., claims rights of exploitation to the recordings under a chain of title. Williams' heirs, Hank Williams, Jr. and Jett Williams, contend neither Legacy nor Polygram have contractual rights to exploit Williams' performances embodied in the WSM recordings, and further contend the rights passed to his heirs. The trial court summarily dismissed the claims of Polygram and Legacy, finding neither own rights to exploit the recorded performances, and the rights belong to Williams' heirs. Legacy and Polygram appeal. We affirm the trial court.

State of Tennessee v. Marlon Orlando Walls
M2003-01854-CCA-R3-CD
Authoring Judge: Judge Thomas T. Woodall
Trial Court Judge: Judge Robert W. Wedemeyer

Defendant, Marlon Orlando Walls, was indicted on one count of first degree felony murder, one count of especially aggravated kidnapping, and one count of second degree murder. Following a jury trial, Defendant was convicted of first degree felony murder and especially aggravated kidnapping, and found not guilty of second degree murder. Defendant was sentenced to life imprisonment for the felony murder conviction and fifteen years for the especially aggravated kidnapping conviction. The trial court ordered Defendant's sentences to be served concurrently, and Defendant does not challenge the length or manner of service of his sentences. Defendant was granted a delayed appeal. In his appeal, Defendant argues (1) that the evidence is insufficient to support his convictions; (2) that the trial court erred in failing to instruct the jury on facilitation; (3) that the trial court erred in not declaring a mistrial; (4) that the trial court erred in failing to instruct the jury on the natural and probable consequences rule; and (5) that the trial court erred in not allowing into evidence proof that when the victim possessed the handgun, the victim was violating the terms/conditions of his community corrections sentence. After a thorough review of the record, we affirm the trial court's judgments.

Heinrich W. Oberkirsch v. Janis L. Oberkirsch
M2004-01888-COA-R3-CV
Authoring Judge: Presiding Judge William C. Koch, Jr.
Trial Court Judge: Judge J. S. Daniel

This appeal stems from the change of a nine-year-old child's custody. The child was removed from his mother's custody after animal control officers, responding to complaints of animal abuse, discovered deplorable conditions in her home caused by a menagerie of cats. The father filed a petition for change of custody in the Chancery Court for Rutherford County. Following a bench trial, the court granted the father's petition and designated him as the primary residential parent. We agree with the trial court that there was a material change in circumstances warranting modification of the initial custody determination and that it is in the child's best interests for the father to be the primary residential parent.

State of Tennessee v. Bowman Robert Russell
E2005-01135-CCA-R3-CD
Authoring Judge: Judge J. Curwood Witt, Jr.
Trial Court Judge: Judge E. Eugene Eblen

The defendant, Bowman Robert Russell, appeals from his Loudon County Criminal Court jury verdict resulting in a conviction of driving while under the influence of an intoxicant (DUI), third offense. The single issue on appeal is whether the convicting evidence is sufficient to support the conviction. Because it is, we affirm the judgment of the criminal court.

Terrell L. Robinson v. State of Tennessee
E2005-01544-CCA-R3-PC
Authoring Judge: Presiding Judge Gary R. Wade
Trial Court Judge: Judge Rebecca J. Stern

The petitioner, Terrell L. Robinson, appeals the denial of his petition for post-conviction relief. In this appeal of right, he asserts that his guilty plea was not knowingly and voluntarily entered and that he did not receive the effective assistance of counsel. The judgment of the post-conviction court is affirmed

Charles H. Shell, et al. v. Caterpillar Precision Machined Castings, et al.
W2004-01155-WC-R3-CV
Authoring Judge: Special Judge Ron E. Harmon
Trial Court Judge: Chancellor J. Steven Stafford

This workers' compensation appeal has been referred to the Special Workers' Compensaton
Appeals Panel of the Supreme Court in accordance with Tenn. Code Ann. §50-6-225(e)(3) for
hearing and reporting to the Supreme Court of findings of fact and conclusions of law. In this
appeal, the employee asserts the trial court erred in finding that the employee's back surgery and
resulting disability were not causally related to the February 28, 2002, work injury. We conclude that the evidence presented supports the findings of the trial judge and, in accordance with Tennessee Code Annotated §50-6-225(e)(2), affirm the judgment of the trial court.

State of Tennessee v. Tevias Bledsoe
W2004-01585-CCA-R3-CD
Authoring Judge: Judge Jerry L. Smith
Trial Court Judge: Judge Joseph B. Dailey

The appellant, Tevias Bledsoe, was indicted on one count of premeditated murder, one count of felony murder, one count of especially aggravated robbery, and three counts of possession of a firearm by a convicted felon. After a jury trial, the appellant was acquitted of all charges except for the firearm possession charges. The trial court nolle prossed two of the firearm charges and sentenced the appellant to four years as a Range II multiple offender for the remaining conviction.  After the denial of a motion for new trial, the appellant filed a timely notice of appeal. On appeal, the appellant contends that the trial court committed plain error by failing to instruct the jury on the defense of duress. We agree and reverse and remand the judgment of the trial court.

State of Tennessee v. John Allen, Jr.
M2005-00551-CCA-R3-CD
Authoring Judge: Judge Thomas T. Woodall
Trial Court Judge: Judge Thomas W. Graham

Following a revocation hearing, the trial court revoked the probation of Defendant, John Allen, Jr., and ordered him to serve the remainder of his sentence in confinement. In his appeal, Defendant argues that the trial court erred in finding that he had violated the terms of his probation, and in revoking his probation and ordering that the sentence be served by incarceration. After a review of this matter, we affirm the judgment of the trial court.

Joseph Brown v. State of Tennessee
W2005-00250-CCA-R3-PC
Authoring Judge: Judge Norma McGee Ogle
Trial Court Judge: Judge W. Fred Axley

The petitioner, Joseph Brown, pled guilty in the Shelby County Criminal Court to facilitation of first degree murder and two counts of especially aggravated kidnapping. The trial court sentenced him to fifteen years for each conviction and ordered that the sentences be served concurrently.  Subsequently, the petitioner filed a petition for post-conviction relief, claiming that he did not knowing, intelligently, and voluntarily enter his guilty pleas. The post-conviction court denied relief.  Upon review of the record and the parties’ briefs, we must dismiss the petitioner’s appeal for lack of jurisdiction.

Randall Carver v. Tony Parker, Warden
W2005-00522-CCA-R3-HC
Authoring Judge: Judge Norma McGee Ogle
Trial Court Judge: Judge R. Lee Moore Jr.

The petitioner, Randall Carver, pled guilty in the Sumner County Criminal Court to one count of attempted especially aggravated kidnapping and aggravated assault. He received a total effective sentence of eight years in the Tennessee Department of Correction. Subsequently, the petitioner filed a petition for a writ of habeas corpus in the Lake County Circuit Court. The habeas corpus court denied the petition, and the petitioner now appeals. Upon our review of the record and the parties’ briefs, we remand the case to the habeas corpus court for further proceedings consistent with this opinion.

Alfred Joe Hill v. Tennessee Department of Correction, et al.
W2005-00703-COA-R3-CV
Authoring Judge: Judge David R. Farmer
Trial Court Judge: Chancellor Martha B. Brasfield

Inmate filed a petition for certiorari contesting his housing placement while incarcerated at WTSP.  The trial court dismissed the petition under the doctrine of mootness in view of the fact that inmate, during the course of the proceedings below was incarcerated at another penal institute. The trial court further  determined that the placement in housing was an administrative decision by the prison authorities and Petitioner’s rights were not violated by their decision. We affirm the dismissal under the doctrine of mootness.

State of Tennessee v. Larrie Maclin AND State of Tennessee v. Michael Lebron Anderson
W2003-03123-SC-R11-CD
Authoring Judge: Chief Justice William M. Barker
Trial Court Judge: Judge Chris B. Craft AND Judge Douglas A. Meyer

We granted permission to appeal these cases and then consolidated them to determine a question common to both: whether the admission at trial of an unavailable witness’s “excited utterance” to law enforcement officers at the crime scene violated the defendant’s right to confront witnesses against him. We conclude that—depending on the particular facts of a case—an excited utterance can be “testimonial.” If the statement is determined to be “testimonial,” then under Sixth Amendment analysis as outlined in Crawford v. Washington, 541 U.S. 36 (2004), and under Article I, Section 9 of the Tennessee Constitution, which guarantees the defendant’s right to “meet the witnesses face to face,” it is inadmissible unless the witness was unavailable and the defendant had a prior opportunity for cross-examination. If the statement is not testimonial, then admissibility is governed by the standards of Ohio v. Roberts, 448 U.S. 56 (1980). We reverse the Court of Criminal Appeals in State v.Maclin and dismiss charges against the defendant for reckless aggravated assault; we affirm the lower court’s conviction in State v. Anderson of the defendant for burglary of a building other than a habitation.

Kerry C. Lyons v. Gregory M. Lyons
W2004-02907-COA-R3-CV
Authoring Judge: Judge David R. Farmer
Trial Court Judge: Judge Rita L. Stotts

The trial court determined a material change of circumstances had occurred which warranted modification of the parties’ child visitation scheduled. Father appeals. We affirm.

Catherine Layman v. Vanguard Contractors, et al.
M2004-01918-SC-R3-CV
Authoring Judge: Justice Janice M. Holder
Trial Court Judge: Judge Ross H. Hicks

The plaintiff sought workers' compensation benefits for both cognitive impairment and a disfiguring scar resulting from a work-related accident. We conclude that the evidence does not preponderate against the trial court's conclusion that the plaintiff did not suffer cognitive impairment as a result of the accident. With regard to the benefits for disfigurement, the trial court erred in calculating benefits as an award to the body as a whole pursuant to Tennessee Code Annotated section 50-6-207(3)(F) (1999). Injuries for disfigurement are instead governed by Tennessee Code Annotated section 50-6-207(3)(E) (1999), which limits the benefits for disfigurement to 200 weeks. Because the plaintiff's disfigurement may not be classified as an injury to the body as a whole, the trial court erred in limiting the award to two and one-half times the impairment rating as set forth in Tennessee Code Annotated section 50-6-241(a)(1) (1999). After an independent review of the evidence, we conclude that the evidence supports a vocational disability of 20% due to the disfigurement. Accordingly, the trial court's judgment is affirmed as modified, and the case is remanded to the trial court for further proceedings consistent with this opinion.

State of Tennessee v. Joey Lee Smith
M2005-01732-CCA-R3-HC
Authoring Judge: Judge J. C. McLin
Trial Court Judge: Judge Stella L. Hargrove

The petitioner, Joey Lee Smith, appeals from the circuit court's summary dismissal of his pro se petition for writ of habeas corpus. Following our review of the parties' briefs and applicable law, we affirm the court's dismissal of the petition.

Donita Dale Dowden v. Ronald J. Feibus
E2004-02751-COA-R3-CV
Authoring Judge: Judge D. Michael Swiney
Trial Court Judge: Judge Jacqueline E. Schulten

After fourteen years of marriage, Donita Dale Dowden ("Wife") sued Ronald J. Feibus ("Husband") for a divorce. After trial, the Trial Court entered its Final Decree, inter alia, awarding Wife a divorce, dividing the parties' marital property, and ordering Husband to pay Wife alimony in futuro of $1,000 per month. Husband appeals claiming that the Trial Court erred in awarding Wife alimony in futuro instead of rehabilitative alimony, in awarding Wife 50% of Husband's federal pension when a portion of that pension was earned prior to the marriage, and in dividing an award that Husband received from a personal injury lawsuit. We affirm.