State of Tennessee v. Amy Denise Sutton
W2003-01183-CCA-R3-CD
Authoring Judge: Judge Joe G. Riley
Trial Court Judge: Judge Julian P. Guinn

The defendant was convicted of theft of property valued over $1,000. The defendant was sentenced as a Range I standard offender to three years in the Tennessee Department of Correction with one year of incarceration and the remainder to be served on community corrections. On appeal, the defendant challenges the sufficiency of the evidence to support her conviction and raises issues regarding the length and manner of service of her sentence. We remand to delete the reference to the Department of Correction but otherwise affirm the judgment of the trial court.

James O. Ward v. Susan Ampferer Ward
W2003-01630-COA-R3-CV
Authoring Judge: Presiding Judge W. Frank Crawford
Trial Court Judge: Chancellor Walter L. Evans

Wife appeals trial court’s ruling on remand that former husband did not dissipate substantial marital assets through extramarital relationship, specifically asserting that the trial court failed to properly consider or apply the two-prong test set forth by the appellate court for determining whether dissipation has occurred. We affirm.
 

Timothy Johns v. State of Tennessee
W2003-00677-CCA-R3-PC
Authoring Judge: Judge John Everett Williams
Trial Court Judge: Judge W. Fred Axley

The petitioner appeals from the denial of his post-conviction petition. The petitioner had pled guilty to rape of a child under age thirteen in exchange for a sentence of fifteen years at 100%. On appeal, the petitioner claims that he received ineffective assistance of counsel. The petitioner also contends that the post-conviction court erred by denying his request to call two witnesses and by denying his request to make an offer of proof regarding the testimony of those witnesses. The post-conviction court also excluded certain medical records of the victim. After thorough review, we reverse the post-conviction court’s judgment and remand the case to the post-conviction court for a new hearing. At the new hearing, the post-conviction court should admit the testimony of the petitioner’s two witnesses and the victim’s medical records. Should the court exclude certain portions of the testimony, offers of proof shall be allowed in accordance with Tennessee Rule of Evidence 103.

Timothy Johns v. State of Tennessee - Concurring
W2003-00677-CCA-R3-PC
Authoring Judge: Judge John Everett Williams
Trial Court Judge: Judge W. Fred Axley

I agree this case must be remanded to address both deficiency and prejudice relating to ineffective assistance of counsel. I write separately to elaborate on my concerns, especially relating to deficiency.

State of Tennessee v. William F. Cartwright
M2003-00483-CCA-R3-CD
Authoring Judge: Judge Joseph M. Tipton
Trial Court Judge: Judge Lillie Ann Sells

The defendant, William F. Cartwright, appeals as of right from his convictions by a jury in the Putnam County Criminal Court for possession with intent to deliver one-half gram or more of cocaine, a Class B felony, and simple possession of cocaine, a Class A misdemeanor. The trial court sentenced him as a standard offender to concurrent sentences of nine years for possession of one-half gram or more of cocaine with intent to deliver and eleven months, twenty-nine days for simple possession of cocaine. However, the trial court ordered these convictions merged. The petitioner contends (1) that the evidence is insufficient to support his conviction for possession with intent to deliver one-half gram or more of cocaine, (2) that the trial court erred in not requiring the state to elect which offense it was prosecuting, and (3) that his convictions for possession with intent to deliver one-half gram or more of cocaine and for simple possession of cocaine violate double jeopardy. We hold that the evidence is sufficient and that the trial court did not err by not requiring the state to elect between offenses with regard to his cocaine convictions. We also hold that although the trial court ordered the cocaine convictions to be merged, it should have entered only one judgment of conviction and noted the merger of the counts in that judgment. We vacate the judgments and remand the case for entry of a single judgment of conviction.

AT&T Corp. v. Ruth Johnson, et al.
M2003-00148-COA-R3-CV
Authoring Judge: Judge William B. Cain
Trial Court Judge: Chancellor Irvin H. Kilcrease, Jr.

This appeal concerns a challenge to the Commissioner's franchise and excise tax assessment. On cross-motions for summary judgment the chancellor found for the Commissioner. We affirm.

Steven D. Elliott v. Ginger W. Elliott (Ecton)
M2003-00492-COA-R3-CV
Authoring Judge: Judge William C. Koch, Jr.
Trial Court Judge: Judge Muriel Robinson

This appeal involves a post-divorce dispute regarding stock options that were part of the marital estate. The Circuit Court for Davidson County approved a marital dissolution agreement in which the husband agreed to transfer one-half of his employee stock options to the wife as part of the division of the martial estate. After the husband's employer and the employer's brokerage firm declined to transfer the stock options to the wife, she orally requested the husband to exercise the options on her behalf. The value of the employer's stock fell after the husband did not exercise the options. The wife sought to hold the husband in contempt or to modify the divorce decree. The trial court declined to hold the husband in contempt but found that he had impermissibly impeded the division of the martial estate. Accordingly, the court awarded the wife $59,759.25, the stock options' before-tax value had they been exercised on the day the divorce decree was entered. In addition, the court ordered the husband to immediately sell the options originally awarded to the wife and to pay her the proceeds as a credit against the judgment. The court also ordered the husband to pay the wife's attorney's fees, as well as prejudgment interest. The husband has appealed. We have determined that the trial court properly concluded that the husband unreasonably impeded the wife's acquisition of the value of the stock options. However, we have determined that the trial court erred by valuing the stock options as of the time of the divorce rather than the time the wife and the husband orally agreed to exercise the options and that the court erred by requiring the husband to exercise his options to pay the judgment. We have also determined that the court erred by awarding the wife prejudgment interest but properly awarded the wife her attorney's fees.

State of Tennessee v. Mario McNeal
W2003-01344-CCA-R3-CD
Authoring Judge: Judge Thomas T. Woodall
Trial Court Judge: Judge John P. Colton, Jr.

Defendant, Mario McNeal, was convicted by a jury of five counts of aggravated robbery and one count of aggravated assault. Defendant was sentenced to ten years confinement for each of the aggravated robbery convictions and three years confinement for his aggravated assault conviction. The sentences were ordered to be served concurrently, resulting in an effective sentence of ten years. In this appeal as of right, Defendant challenges the sufficiency of the convicting evidence. After a review of the entire record, we affirm the judgments of the trial court.

State of Tennessee v. Elizabeth Allison
W2003-02007-CCA-R3-CD
Authoring Judge: Judge Thomas T. Woodall
Trial Court Judge: Judge L. Terry Lafferty

Petitioner, Elizabeth Allison, filed a petition for writ of habeas corpus in which she alleged that her judgment of conviction was void because the length of her sentence exceeded the range of  sentence for a Range I offender. Relying upon the supreme court’s decision in McConnell v. State, 12 S.W.3d 795 (Tenn. 2000), the trial court granted Petitioner habeas corpus relief. The State now appeals and argues that the trial court erred in granting Petitioner’s petition for writ of habeas corpus. After a through review of this matter, we reverse the judgment of the trial court, dismiss the petition, and remand this matter for reinstatement of the judgment of conviction and sentence previously imposed.

State of Tennessee v. George Arvil Vance and Vincent Vance
E2003-00110-CCA-R3-CD
Authoring Judge: Judge Robert W. Wedemeyer
Trial Court Judge: Judge Phyllis H. Miller

A Sullivan County jury convicted the Defendants, George A. Vance and Vincent Vance, of aggravated gambling promotion for operating twenty-nine Free Spin machines in Bristol. The trial court sentenced Defendant George A. Vance to two years of supervised probation followed by four years of unsupervised probation and ordered him to make restitution in the amount of $130,521.00. The court sentenced Defendant Vincent Vance to one year of supervised probation followed by one year of unsupervised probation. On appeal, the Defendants contend that: (1) the evidence is insufficient to support their convictions because there was no evidence that they knowingly engaged in a gambling enterprise and the Free Spin machines were not principally designed as gambling devices; (2) the trial court abused its discretion by prohibiting the Defendants from introducing the testimony of a patent attorney concerning the issuance of a patent on the Free Spin machine; and (3) the trial court abused its discretion by prohibiting the Defendants from introducing evidence concerning comparable products, games and promotions similar to the play on the Free Spin machines. Finding no reversible error, we affirm the trial court's judgments.

State of Tennessee v. Cherie Mae Phillips
E2003-01897-CCA-R3-CD
Authoring Judge: Judge Norma McGee Ogle
Trial Court Judge: Judge Richard R. Baumgartner

The appellant, Cherie Mae Phillips, pled guilty in the Knox County Criminal Court to aggravated assault. Pursuant to the plea agreement, she received a sentence of three years incarceration in the Tennessee Department of Correction. On appeal, the appellant argues that the trial court erred in denying alternative sentencing. Upon our review of the record and the parties' briefs, we affirm the judgment of the trial court.

State of Tennessee v. Chris E. Hixson
M2002-03141-CCA-R3-CD
Authoring Judge: Judge David H. Welles
Trial Court Judge: Judge Robert E. Burch

The Defendant, Chris E. Hixson, pled guilty to two counts of theft and three counts of sale of cocaine, all Class C felonies. He was sentenced to two concurrent four-year terms for the theft offenses, and to three concurrent four-year terms for the cocaine offenses, these latter terms to be served consecutively to the terms for the theft offenses, for an effective sentence of eight years. All of these sentences were ordered to be served on community corrections. The Defendant was subsequently convicted of aggravated burglary and sentenced to serve three years on community corrections, consecutive to the sentences imposed for the theft offenses. The effective sentence of eight years was thus unchanged. Subsequent to the burglary conviction, the Defendant violated the terms of his release and was ordered to serve two years day-for-day in confinement, after which he was to be released back into community corrections. It is from this order that the Defendant now appeals, arguing that the two years of continuous confinement constitutes an illegal sentence. The State concedes that the sentence is illegal. We agree. The trial court's judgment is reversed and this matter is remanded to the trial court.

Johnny L. McGowan, Jr. v. State of Tennessee
M2003-00268-CCA-R3-CO
Authoring Judge: Judge John Everett Williams
Trial Court Judge: Judge Thomas W. Brothers

The petitioner directly appeals the dismissal of his petition of writ of habeas corpus. The judgment of the habeas court summarily dismissing the petition for writ of habeas corpus is reversed, and this case is remanded to the Circuit Court of Davidson County for appointment of counsel and an evidentiary hearing. If the habeas corpus court finds the sentence to be illegal, the court must then remand the case to the Rutherford County Criminal Court, where the convictions occurred. On remand to the original convicting court, the petitioner's guilty plea may be withdrawn if concurrent sentencing was a condition of his plea agreement.

State of Tennessee v. Paul Graham
M2003-00331-CCA-R3-CD
Authoring Judge: Judge John Everett Williams
Trial Court Judge: Judge Michael R. Jones

The defendant was convicted by a jury of second degree murder of his wife. The defendant appeals his conviction and sentence and alleges the following errors: (1) the evidence was insufficient to support the conviction; (2) the admission of hearsay testimony and failure to give a curative instruction; (3) the admission of expert opinion that the death was a result of homicidal violence when cause was undetermined; (4) cumulative errors required a new trial; and (5) improper sentencing. After review, we conclude that there is no reversible error and affirm the conviction and sentence.

Krishnalal J. Patel v. Dileep Patel
M2003-00375-COA-R3-CV
Authoring Judge: Presiding Judge William C. Koch, Jr.
Trial Court Judge: Judge Walter C. Kurtz

This appeal involves a dispute among the members of a general partnership. In 1997, a group of the partners sued one of the partners in the Chancery Court for Davidson County for negligence and breach of fiduciary duty. The trial court granted a judgment for the defendant partner in 2000. In 2001, the same group of partners filed a similar suit in the Circuit Court for Davidson County. The defendant partner moved to dismiss on the grounds of res judicata. The trial court converted the motion to dismiss into a motion for summary judgment and then granted judgment for the defendant partner on the ground that the 1997 chancery court judgment barred the second state court suit. The plaintiff partners have appealed. We affirm the trial court.

Carol Newell D/B/A Solowell v. Exit/In, Inc., et al.
M2003-00434-COA-R3-CV
Authoring Judge: Judge Patricia J. Cottrell
Trial Court Judge: Chancellor Ellen Lyle Hobbs

The trial court granted partial summary judgment to plaintiff in this suit to collect on a promissory note. Appellant does not appeal the grant of judgment, but appeals the trial court's certification of that judgment as a final order under Tenn. R. Civ. P. 54.02. We affirm the trial court.

Gretta Irion v. Sun Lighting, Inc., et al.
M2002-00766-COA-R3-CV
Authoring Judge: Judge Patricia J. Cottrell
Trial Court Judge: Judge Barbara N. Haynes

Consumer brought products liability suit under theories of negligence, strict liability in tort, and breach of implied warranty for property damage arising out of a fire caused when the consumer's son placed a pillow on top of a halogen torchiere lamp supplied by defendant Sun Lighting, Inc. and sold by defendant The Home Depot, Inc. The trial court granted summary judgment to both defendants and dismissed the lawsuit. The consumer appeals. Because we find the joint summary judgment motions were properly granted, we affirm the trial court.

Raymond Rutter v. State of Tennessee
E2003-01386-CCA-R3-PC
Authoring Judge: Judge Joseph M. Tipton
Trial Court Judge: Judge Lynn W. Brown

The petitioner, Raymond Rutter, appeals as of right from the Johnson County Criminal Court's dismissal of his petition for habeas corpus relief. In this pro se appeal, the petitioner contends that he should be granted habeas corpus relief because his judgment of conviction for criminal impersonation of a licensed professional is void. The state contends that the trial court properly dismissed the petition. We affirm the trial court's dismissal of the petition.

Jimmy Hicks v. Travelers Insurance Company
W2003-00768-SC-WCM-CV
Authoring Judge: Joe C. Loser, Jr., Sp. J.
Trial Court Judge: J. Steven Stafford, Chancellor
This workers' compensation appeal has been referred to the Special Workers' Compensation Appeals Panel of the Supreme Court in accordance with Tenn. Code Ann. _ 5-6-225(e)(3) for hearing and reporting to the Supreme Court of findings of fact and conclusions of law. In this appeal, the injured employee insists the trial court erred in disallowing his claim for failure to give timely written notice. As discussed below, the panel has concluded the evidence preponderates in favor of a finding that written notice was unnecessary because the employer had actual notice. The judgment of dismissal for lack of notice is therefore reversed, the trial court's conditional award of benefits is affirmed, and the cause is remanded for all purposes. Tenn. Code Ann. _ 5-6-225(e) (Supp 22.) Appeal as of Right; Judgment of the Chancery Court Reversed in Part; Affirmed in Part JOE C. LOSER, JR., SP. J., in which JANICE M. HOLDER, J., and JOE H. WALKER, III, SP. J., joined. James R. Krenis, Hill & Boren, Jackson, Tennessee, for the appellant, Jimmy Hicks Paul Todd Nicks, Walker Law Office, Memphis, Tennessee, for the appellee, Travelers Insurance Company MEMORANDUM OPINION The employee or claimant, Jimmy Hicks, initiated this civil action against his employer's former insurance carrier, Reliance, to recover workers' compensation benefits for work related carpal tunnel syndrome. Travelers was substituted for Reliance by amendment. Travelers denied liability for failure to give timely written notice and affirmatively averred the claim was barred by the statute of limitations. After a trial on the merits, the trial court, noting that it had "struggled" with the issue, disallowed the claim upon a finding that "there was not proper notice given." The conclusion was based on a decision contained in an unpublished opinion. As to the statute of limitations issue, the trial court concluded that it was "not really an issue and is not dispositive of this case." The trial court also issued a conditional award of benefits. Mr. Hicks has appealed, seeking review only of the trial court's finding that he failed to give proper notice of his injury. Appellate review is de novo upon the record of the trial court, accompanied by a presumption of correctness of the findings of fact, unless the preponderance of the evidence is otherwise. Tenn. Code Ann. _ 5-6-225(e)(2). This tribunal is not bound by the trial court's findings but instead conducts an independent examination of the record to determine where the preponderance lies. Galloway v. Memphis Drum Serv., 822 S.W.2d 584, 586 (Tenn. 1991). Where the trial judge has seen and heard the witnesses, especially if issues of credibility and weight to be given oral testimony are involved, considerable deference must be accorded those circumstances on review, because it is the trial court which had the opportunity to observe the witnesses' demeanor and to hear the in- court testimony. Long v. Tri-Con Ind., Ltd., 996 S.W.2d 173, 178 (Tenn. 1999). The essential facts are undisputed. The claimant is approximately fifty-three years old with a high school education and experience as a factory worker. He worked for the employer, Dyersburg Fabrics, for over 3 years in jobs requiring repetitive use of the hands and arms. He first reported discomfort in his hands in 1995 and the employer provided him with splints to wear while working. He did not know at the time that the condition was work related or was a permanent condition, but he told the employer what he did know, that he was having pain at work. He continued working and, in 2, visited Dr. Michael Roland, who ordered a nerve conduction study. The test revealed carpal tunnel syndrome. Dr. Roland referred the claimant to Dr. Gary Kellett, whom the claimant told he thought the condition might be related to his work. Dr. Kellett recommended surgery. Notwithstanding that recommendation, the claimant continued working for Dyersburg Fabrics until the plant closed in August 21. Shortly after the plant closure, the claimant contacted Travelers, the employer's insurer, seeking workers' compensation benefits. Travelers denied the claim as being barred by the statute of limitations. Surgery was eventually performed by Dr. Lowell Stonecipher. The claimant testified that he did not tell the employer about his visit to Dr. Kellett on April 17, 2. He stated that he did have an idea, at that time, that his injury could be work related, but had no such idea in 1995, when he first reported his pain to the employer. He was able to work until December 1, 21, when surgery was performed. Travelers had actual notice of the claim before the surgery was done. Immediately upon the occurrence of an injury, or as soon thereafter as is reasonable and practicable, an injured employee must, unless the employer has actual knowledge of the accident, give written notice of the injury to his employer. Tenn. Code Ann. _ 5-6-21 (a). From the undisputed facts of this case, we are persuaded the employer had actual notice of the claimant's injury, or at least as much knowledge as he was able to articulate, as early as 1995, when he first reported to the employer that his arms were hurting at work and the employer provided him with -2-

State of Tennessee v. Terry A. Hawkins
M2002-01819-CCA-R3-CD
Authoring Judge: Judge David G. Hayes
Trial Court Judge: Judge John D. Wootten, Jr.

The Appellant, Terry A. Hawkins, presents for review a certified question of law. See Tenn. R. Crim. P. 37(b)(2)(i). Hawkins pled guilty to DUI, first offense, and was sentenced to eleven months, twenty-nine days jail confinement, to be suspended after service of forty-eight hours. As a condition of her guilty plea, Hawkins explicitly reserved a certified question of law challenging the denial of her motion to suppress the results of a blood alcohol test administered by a private hospital in the course of medical treatment. The Appellant argues that the procedures utilized to obtain the results of the test violated both her constitutional right to privacy and due process. On appeal, the State asserts that the question presented is not dispositive and, thus, this court is without jurisdiction to hear this appeal. After review, we agree that the certified question is not dispositive. Accordingly, the appeal is dismissed.

State of Tennessee v. Jeffrey R. Dickens
M2003-00783-CCA-R3-CD
Authoring Judge: Judge David G. Hayes
Trial Court Judge: Judge Don Ash

Following a bench trial, the Appellant, Jeffrey R. Dickens, was convicted of criminal attempt to commit unlawful photographing in violation of privacy as proscribed by Tennessee Code Annotated section 39-13-605 (2003), a class B misdemeanor. He was sentenced to six months in the Rutherford County Jail, which was suspended after service of eight days periodic confinement. On appeal, Dickens argues that his conviction cannot stand because an attempt to commit a violation of this section is not an indictable offense. Alternatively, he contends that the proof is insufficient to constitute a "substantial step" toward the commission of the attempted crime. After review, the judgment of conviction is affirmed.

State of Tennessee v. Robert M. Bass
M2003-01124-CCA-R3-CD
Authoring Judge: Judge David G. Hayes
Trial Court Judge: Judge Robert E. Burch

The Appellant, Robert M. Bass, appeals the sentencing decision of the Stewart County Circuit Court following revocation of his community corrections sentences. The trial court's order provides that Bass is to serve eighteen months in the county jail and, upon service of this term, return to community corrections supervision for the balance of his sentences. Bass argues that the trial court is without authority to impose a sentence in excess of one year's confinement in the jail. The State concedes error. We agree and remand for further proceedings.

State of Tennessee v. Russell K. Bowman
M2003-00257-CCA-R3-CD
Authoring Judge: Presiding Judge Gary R Wade
Trial Court Judge: Judge John J. Maddux

The defendant was convicted of driving under the influence, second offense. The trial court imposed a sentence of 11 months and 29 days, to be served on probation after service of eighty days' incarceration. In this appeal of right, the defendant challenges the sufficiency of the evidence. The judgment is affirmed.

Helaine Richberger v. The West Clinic, P.C., et al.
W2003-00141-COA-R3-CV
Authoring Judge: Presiding Judge W. Frank Crawford
Trial Court Judge: Judge John R. McCarroll, Jr.

Plaintiff filed medical malpractice action against clinic, treating nurse, and supervising physician for injuries suffered as a result of alleged negligent chemotherapy treatment. Trial court granted summary judgment in favor of defendants, finding that registered nurse was not qualified as an expert on the issue of medical causation, and further noting that the deposition testimony of lone expert physician failed to establish that the plaintiff’s injuries were caused by the negligence of the defendants. Plaintiff appeals. We affirm.
 

Catherine A. Hoback v. Glenn D. Hoback
M2001-01913-COA-R3-CV
Authoring Judge: Special Judge Tom E. Gray
Trial Court Judge: Judge Marietta M. Shipley

The issues on appeal in this divorce action are: (1) Whether the trial court erred in awarding alimony in futuro; (2) Whether the trial court was in error in finding wife's IRA of Wal-mart stock was her separate property in its entirety; (3) Whether the trial court erred in failing to make a downward deviation in child support. The trial court awarded to Ms. Hoback as alimony in futuro $500 per month for a ten (10) year period terminating on her death or her remarriage. Wal-mart stock of value of approximately $35,000 was awarded to Ms. Hoback as her separate property. Child support was set at $750 per month upon a finding of ability of the father to earn $60,000 per year, and based upon additional parenting time above 80 days per year granted to the father the Court reduced the month of June child support to $550 and reduced the month of July support to $375 making a downward deviation of $47.92 per month. For reasons stated below, the trial court is affirmed.