State of Tennessee v. Immanuel Eldridge Harney
M2003-03004-CCA-R3-CD
Authoring Judge: Judge Joseph M. Tipton
Trial Court Judge: Judge Robert L. Jones

The defendant, Immanuel Eldridge Harney, pled guilty to six counts of sale of one-half gram or more of cocaine, a Class B felony, and pursuant to a plea agreement, the Giles County Circuit Court sentenced him to twelve years incarceration for five of the counts and three years incarceration for the sixth count. The court ordered that the defendant serve one of his twelve-year sentences consecutively to the other four and that he also serve the three-year sentence consecutively to the five twelve-year sentences for an effective sentence of twenty-seven years in the Department of Correction (DOC). The defendant appeals from the Giles County Circuit Court order reducing his sentences by six months, claiming that the trial court abused its discretion in failing to grant him a greater reduction. The state appeals, contending that the trial court was without jurisdiction to reduce the defendant's sentence. We hold the trial court was without jurisdiction to reduce the defendant's sentence. We reverse the judgment of the trial court and remand the case for the entry of a corrected judgment.

Ronda Gaw Brady, et al. v. James Donald Calcote, et al.
M2003-01690-COA-R3-CV
Authoring Judge: Judge Alan E. Highers
Trial Court Judge: Judge John A. Turnbull

This appeal arises out of a shareholder derivative action brought by Appellant in behalf of Community Bank of the Cumberlands against the Appellees, the directors and chief financial officer of the Bank. The trial court granted the Appellee's motion to dismiss and further awarded Appellees their attorney's fees and the Bank its expenses for a Special Litigation Committee. Appellant seeks review by this Court, and, for the following reasons, we affirm in part, reverse in part, and remand for further proceedings consistent with this opinion.

Lamar Tennessee, LLC, d/b/a Lamar Advertising of Nashville v. The City of Hendersonville
M2003-00415-COA-R3-CV
Authoring Judge: Judge Alan E. Highers
Trial Court Judge: Chancellor Tom E. Gray

In 1987, a billboard advertising company obtained a permit to construct a billboard, approximately seventy-five (75) square feet in size, along a stretch of roadway in Hendersonville, Tennessee. At the time of issuance, the applicable zoning ordinance stated the billboard could not exceed eighty (80) square feet in size. Later that same year, the city passed a new zoning regulation providing that billboards could no longer be erected in the area as a primary use. Instead, billboards could only be erected as an accessory use to another primary use on the premises. The new zoning ordinance did not change the maximum allowable size of a billboard, which remained at eighty (80) square feet. Subsequent to the enactment of the new ordinance, the billboard company filed for a permit, pursuant to section 13-7-208 of the Tennessee Code, seeking to demolish the existing billboard and construct a new billboard, at 220 square feet in size, in its place. When the city denied the permit, the billboard company filed an action in the chancery court seeking a declaratory judgment, writ of mandamus, and permanent injunction. The billboard company also filed a motion for summary judgment, which the chancery court granted. The city filed an appeal to this court. We reverse.

Derrick Taylor v. State of Tennessee
W2003-02669-CCA-R3-PC
Authoring Judge: Judge Robert W. Wedemeyer
Trial Court Judge: Judge Carolyn Wade Blackett

The Petitioner, Derrick Taylor, was indicted for, and pled guilty to, aggravated assault. The trial court sentenced him to seven years, as a multiple offender, at thirty-five percent. The Petitioner filed a pro se petition for post-conviction relief, which the post-conviction court dismissed. The Petitioner now appeals contending that the post-conviction court erred when it dismissed his petition because: (1) his guilty plea was not knowingly and voluntarily entered; and (2) he received ineffective assistance of counsel. Finding no error in the judgment of the post-conviction court, we affirm its dismissal of the Petitioner’s petition for post-conviction relief.

Mid-Century Insurance Company v. Virginia Williams, et al.
W2004-00484-COA-R3-CV
Authoring Judge: Presiding Judge W. Frank Crawford
Trial Court Judge: Judge Jon K. Blackwood

Appellant, an insurance company, appeals from trial court’s judgment finding that the
business pursuit and home care service exclusions to personal liability coverage in a homeowners insurance policy did not exclude coverage for accidental death of child who drowned in a bathtub while in the care of Appellee. Trial court found that Appellee’s arrangement to care for decedent was not a business pursuit or home care service within the meaning of the insurance contract, but rather was an informal type of babysitting motivated by love and/or favor for deceased child’s parents. Appellant contends that motivation by profit was irrelevant to whether Appellee was engaged in a business pursuit or home care service, that the evidence preponderates against the trial court’s fact findings, and that trial court erred in finding for Appellees. We reverse the judgment of the trial court, finding that the business pursuit and home care service exclusions do bar coverage under the homeowners policy.
 

Mid-Century Insurance Company v. Virginia Williams, et al. - Partial Dissent/Concurrence
W2004-00484-COA-R3-CV
Authoring Judge: Judge Holly M. Kirby
Trial Court Judge: Judge Jon K. Blackwood

I write separately to dissent in part from the majority opinion. I agree with the majority’s
analysis of the policy at issue, but disagree with the majority’s conclusion that the evidence
preponderates against the trial court’s finding that the childcare arrangement was not conducted for profit. I certainly agree that the discrepancies in Ms. Williams’ testimony in her two depositions and her trial testimony “suggest . . . deliberate obfuscation” and, if I were the trial judge, I would feel constrained to hold as the majority does, that Ms. Williams’ later testimony was an effort to avoid the consequences of the exclusions from coverage. I am not, however, the trial judge. Here, the trial court’s credibility determination is not based solely on the deposition testimony, ascertained from the transcript. It is also based on Ms. Williams’ testimony at trial, derived from the trial judge’s observation of her demeanor and manner in the courtroom. Given our standard of review for such a credibility determination, I feel compelled, albeit reluctantly, to affirm the trial court’s finding of fact that the childcare arrangement was not conducted for profit.
On this basis, I dissent in part from the majority opinion. In all other respects, I fully concur.

Kynaston Scott a.k.a. Kynaston L. Olawumi v. State of Tennessee
M2004-00809-CCA-R3-PC
Authoring Judge: Judge John Everett Williams
Trial Court Judge: Judge Seth W. Norman

The petitioner appeals the dismissal of his petition for post-conviction relief in which he asserted various instances of ineffective assistance of counsel. We affirm the dismissal of the post-conviction petition because the record supports the post-conviction court's findings.

Tennessee Department of Children's Services v. C.D.W.
E2004-00623-COA-R3-PT
Authoring Judge: Judge David Michael Swiney
Trial Court Judge: Judge Mindy Norton Seals

This appeal involves the Juvenile Court's termination of the parental rights of C.D.W. ("Mother") to her three oldest children. After a trial, the Juvenile Court held there was clear and convincing evidence that Mother had failed to substantially comply with the terms of her permanency plans, and that the conditions present at the time the children were removed had not been remedied and it was unlikely these conditions would be remedied in the near future. The Juvenile Court also held there was clear and convincing evidence that termination of Mother's parental rights was in the children's best interest. We affirm the judgment of the Juvenile Court.

In Re: Z.M.B.
E2004-00380-COA-R3-JV
Authoring Judge: Judge William H. Inman, Sr.
Trial Court Judge: Judge Carey E. Garrett

This case presents the recurring issue of subject matter jurisdiction of the juvenile courts. The child, nine years old, was born out of wedlock. Paternity was adjudicated in the juvenile court, together with the issues of support and visitation. Years later, father filed a petition in the case alleging a change of circumstances and seeking custody of the child. The juvenile court found a change of circumstances and awarded custody of the child to her father. Mother appeals, insisting that a juvenile court is not vested with jurisdiction to change custody of a child because of a change in the circumstances. The judgment is affirmed.

Ali Alvdu Mohammad v. State of Tennessee
M2004-00493-CCA-R3-PC
Authoring Judge: Presiding Judge Gary R. Wade
Trial Court Judge: Judge Cheryl A. Blackburn

The petitioner, Ali Alvdu Mohammad, appeals the trial court's denial of post-conviction relief. The issues presented for review are whether the petitioner's lea of guilt was knowingly and voluntarily entered and whether the petitioner was denied the effective assistance of counsel. The judgment is affirmed.

Shelia L. Godwin v. Fred Sanders
W2003-02239-COA-R3-JV
Authoring Judge: Judge Alan E. Highers
Trial Court Judge: Judge Robert W. Newell

This case arises out of a petition to reopen paternity proceedings filed by Appellant. When Appellee refused to submit to a DNA test, Appellant filed a petition to find Appellee in contempt of court. The trial court refused to find Appellee in contempt and determined that Appellee need not submit to a DNA test. Appellant filed her notice of appeal and seeks review by this Court. For the following reasons, we affirm the trial court.
 

State of Tennessee v. Recardo Dale
W2003-02391-CCA-R3-CD
Authoring Judge: Judge Thomas T. Woodall
Trial Court Judge: Judge Joseph B. Dailey

Following a jury trial, Defendant, Recardo Dale, was convicted of one count of especially aggravated robbery and one count of attempted first degree murder. The trial court sentenced Defendant as a Range I standard offender to twenty-five years for the especially aggravated robbery conviction and twenty-five years for the criminal attempt conviction. The trial court ordered Defendant’s sentences to be served consecutively for an effective sentence of fifty years. Defendant appeals the sufficiency of the convicting evidence, the lengths of his sentences, and the imposition of consecutive sentencing. Since the filing of the briefs, Defendant has also asked us to consider the impact of the ruling in Blakely v. Washington, 542 U.S. ___, 124 S. Ct. 2531 (2004) on the lengths of his sentences. After a thorough review of the record, we affirm Defendant’s convictions and the imposition of consecutive sentencing. Pursuant to the holding in Blakely, we modify each sentence to twenty-two years, for an effective sentence of forty-four years.

State of Tennessee, Department Children's Services v. Lilli Lowery, In the Matter of M.D.B.
E2004-00517-COA-R3-PT
Authoring Judge: Presiding Judge Herschel Pickens Franks
Trial Court Judge: Judge Mindy Norton Seals

The Trial Court determined there were statutory grounds to terminate the mother's parental rights and that termination was in the child's best interest, all by clear and convincing evidence. On appeal, we affirm.

Frederick D. Rice v. State of Tennessee
E2004-01135-CCA-R3-PC
Authoring Judge: Judge David G. Hayes
Trial Court Judge: Judge Stephen M. Bevil

The Appellant, Frederick D. Rice, appeals the judgment of the Hamilton County Criminal Court dismissing his petition for post-conviction relief. On appeal, Rice raises the single issue of whether he was denied the effective assistance of counsel at trial. After review of the record, we affirm the dismissal of the petition.

State of Tennessee v. Thomas L. Gouge
E2003-02492-CCA-R3-CD
Authoring Judge: Presiding Judge Gary R. Wade
Trial Court Judge: Judge Phyllis H. Miller

The defendant, Thomas L. Gouge, appeals from the trial court's revocation of probation requiring a sixty-day jail sentence. The order of revocation provided that the defendant reside in a work release facility for an unspecified amount of time after service of sixty days and that his probationary release was conditioned upon his refraining from taking residence "with any female to whom he is not married." The order of revocation is affirmed; the sentence, however, is modified by deleting the provision prohibiting the sharing of the residence with an unmarried woman.

State of Tennessee v. Eric Thomas Noe
E2004-00550-CCA-R3-CD
Authoring Judge: Judge David H. Welles
Trial Court Judge: Judge R. Steven Bebb

Following a jury trial, the Defendant was convicted of robbery. He was sentenced to six years in the Department of Correction. On appeal he challenges the sufficiency of the convicting evidence and argues that the trial court erred in sentencing him to the maximum term of six years. We affirm the Defendant’s conviction but modify his sentence to five years.

State of Tennessee v. Eric Thomas Noe - Dissenting
E2004-00550-CCA-R3-CD
Authoring Judge: Judge David G. Hayes
Trial Court Judge: Judge R. Steven Bebb

The majority concludes that modification of the Defendant’s sentence is required in light of Blakely v. Washington, 542 U.S.___, 124 S. Ct. 2531 (2004). I must respectfully dissent

State of Tennessee v. Robbie W. Fields
E2004-00716-CCA-R3-CD
Authoring Judge: Judge Alan E. Glenn
Trial Court Judge: Judge Carroll L. Ross

The defendant, Robbie W. Fields, was indicted by the Bradley County Grand Jury for possession of a Schedule I controlled substance, ecstasy, with intent to sell or deliver; possession of a Schedule VI controlled substance, marijuana, with intent to sell or deliver; possession of drug paraphernalia; tampering with evidence; and theft of property under $500. After a pretrial hearing, the trial court suppressed the evidence, and the charges were dismissed, which the State argues was error. Following our review, we reverse the trial court's determination that the officers unlawfully entered the defendant's apartment and remand for additional findings of fact and conclusions of law as to the seizure of evidence.

State of Tennessee v. Barbara Maureen Norwood, alias, Barbara Fox, alias, Barbara Wheeler, alias, Barbara Ayers Norwood, alias
E2004-00361-CCA-R3-CD
Authoring Judge: Judge Alan E. Glenn
Trial Court Judge: Judge Mary Beth Leibowitz

The defendant was convicted by a jury of one count of theft over $1,000 but less than $10,000 and three counts of forgery, all Class D felonies, and was sentenced as a Range I, standard offender to three years on the theft count and two years on each of the forgery counts. The two-year sentences were ordered to be served concurrently but consecutively to the three-year sentence, for a total effective sentence of five years. Split confinement was ordered, with forty-five days to be served in the county jail and the remainder of the sentence on probation. In addition, she was ordered to pay $2,233.94 in restitution. The defendant timely appealed, alleging: (1) the evidence is insufficient to support her convictions; and (2) the trial court erred in allowing certain photographs to be admitted into evidence and in sentencing the defendant. Based on our review, we affirm the judgments of the trial court but modify the defendant’s sentences to reflect that they are to be served concurrently.

Jackie Bostic v. Paul Dalton
E2002-01820-SC-WCM-CV
Authoring Judge: Justice Janice M. Holder
Trial Court Judge: Judge Jerri Saunders Bryant

In this workers' compensation appeal, we must determine whether the appellee, a father who supervised the construction of his daughter's residence, is required to pay workers' compensation benefits to the appellant, the employee of a subcontractor who was injured during the construction of the residence. We hold that the father is an uncompensated agent of the owner and therefore falls within the owner's exemption of Tennessee Code Annotated section 50-6-113(f) (1999). Thus, we adopt the conclusions of the Special Workers' Compensation Appeals Panel affirming the judgment of the trial court.

State of Tennessee v. Raymond D. Simpson
M2003-02951-CCA-R3-CD
Authoring Judge: Presiding Judge Gary R. Wade
Trial Court Judge: Judge Robert E. Burch

The defendant, Raymond D. Simpson, pled guilty to criminally negligent homicide, a Class E felony. The trial court imposed a Range I sentence ¹ of two years. The defendant was ordered to serve seven months in confinement and the remainder on probation. The defendant contends that the trial court erred by denying full probation and/or community corrections. The judgment of the trial court is affirmed; the sentence must be modified, however, to a Range I term of one year, with 105 days to be served in confinement and the balance on probation.

State of Tennessee v. Raymond D. Simpson - Concurring
M2003-02951-CCA-R3-CD
Authoring Judge: Judge John Everett Williams
Trial Court Judge: Judge Robert E. Burch

I write separately to call attention to what I believe is disparate treatment of two cases which, on all pertinent points, seem to be identical. The case presently before this Court involves an inattentive or negligent driver havinga single-vehicle accident while transporting two of his children and his new wife in a vehicle with no seat belts or child restraint devices. In a tragic, yet foreseeable, turn of events, eleven-month-old Jonathan was fatally injured when the truck rolled over on its side and his head struck a pillar on the passenger side of the truck. Despite the efforts of his father, the  defendant in this case, young Jonathan died from cardiac arrest resulting from his head trauma.

State of Tennessee v. Julius Q. Perkins
M2003-01761-CCA-R3-CD
Authoring Judge: Judge Thomas T. Woodall
Trial Court Judge: Judge J. Randall Wyatt, Jr.

Defendant, Julius Q. Perkins, was indicted on one count of first degree premeditated murder and one count of first degree felony murder. Following a jury trial, Defendant was found guilty of felony murder and not guilty of premeditated murder. He was sentenced to life imprisonment. On appeal, Defendant argues that the evidence was insufficient to support his conviction of felony murder because the State failed to show that the victim was killed during a robbery or attempted robbery, or, alternatively, that Defendant was criminally responsible for the death of the victim. After a thorough review of the record, we affirm the judgment of the trial court.

State of Tennessee v. Chris Grunder
M2003-01823-CCA-R3-CD
Authoring Judge: Judge Robert W. Wedemeyer
Trial Court Judge: Judge W. Charles Lee

The Defendant, Chris Grunder, was convicted of especially aggravated kidnapping, aggravated rape, aggravated assault, and theft of property over $500.00. The trial court sentenced the Defendant to an effective sentence of thirty-one years. On appeal, the Defendant contends that: (1) the evidence is insufficient to sustain his convictions; and (2) the trial court erred when it sentenced him. After thoroughly reviewing the record and the applicable authorities, we affirm all of the Defendant's convictions. Further, we hold that the trial court improperly enhanced the Defendant's sentences in light of Blakely v. Washington, 542 U.S. __, 124 S. Ct. 2531 (2004), and we reduce the Defendant's sentence in accordance with this opinion to an effective sentence of twenty-nine years. We remand the case for the entry of judgments of conviction consistent with this opinion.

Anthony L. Washington v. State of Tennessee
M2004-00982-CCA-R3-HC
Authoring Judge: Judge Jerry L. Smith
Trial Court Judge: Judge Jim T. Hamilton

This matter is before the Court upon the State's motion to affirm the judgment of the trial court by memorandum opinion pursuant to Rule 20, Rules of the Court of Criminal Appeals. The petitioner has appealed the trial court's order summarily dismissing the petition for the writ of habeas corpus. In that petition, the petitioner alleges that the indictment charging the petitioner with first degree felony murder is void because the word "robbery" was handwritten on the indictment. Upon a review of the record in this case we are persuaded that the trial court was correct in summarily dismissing the habeas corpus petition and that this case meets the criteria for affirmance pursuant to Rule 20, Rules of the Court of Criminal Appeals. Accordingly, the State's motion is granted and the judgment of the trial court is affirmed.