In Re: C.LaC. and D.L.
M2003-02164-COA-R3-PT
Authoring Judge: Judge Frank Clement, Jr.
Trial Court Judge: Judge Samuel E. Benningfield, Jr.

Mother appeals the decision of the trial court which terminated her parental rights on two statutory grounds, abandonment and failure to comply with the permanency plan, and upon the finding that termination was in the best interest of the children. Mother claims the evidence was insufficient to satisfy the clear and convincing evidentiary standard necessary to prove the statutory grounds for termination and that termination was in the best interest of the children. We affirm.

In Re: C.LaC. and D.L. - Concurring
M2003-02164-COA-R3-PT
Authoring Judge: Judge William B. Cain
Trial Court Judge: Judge Samuel E. Benningfield, Jr.

WILLIAM B. CAIN, J., concurring. I concur in the judgment that clear and convincing evidence establishes abundant grounds for the termination of the parental rights of the mother in this case and further establishes that it is in the best interests of the children to terminate her parental rights

State of Tennessee v. Tammy Boyd, Tosha Lovell, Sandra Culps and Kenneth Culps
W2003-02444-CCA-R9-CD
Authoring Judge: Judge John Everett Williams
Trial Court Judge: Judge Roger A. Page

In this Rule 9 interlocutory appeal, the State appeals the circuit court’s ruling that the defendants are entitled to the underlying search warrant affidavit at the general sessions level. We conclude that the defendants are entitled to the affidavit at the preliminary hearing in order to effectively challenge probable cause. The judgments of the circuit court are affirmed.

Peggy Bailey, et al. v. Dr. John J. Tasker
E2003-00844-COA-R3-CV
Authoring Judge: Judge Charles D. Susano, Jr.
Trial Court Judge: Judge John S. McLellan, III

Peggy Bailey and her husband, Gary Bailey, sued Dr. John J. Tasker for wrongful conduct in connection with two separate surgeries, one on April 10, 1997, and another on June 24, 1999. The trial court granted the defendant's motion for summary judgment, finding that the material filed by the parties fails to reflect a genuine issue of material fact and that the record before it demonstrates conclusively (1) that the defendant did not violate the applicable standard of care, and (2) that the plaintiffs' claims were filed outside the period of the applicable statutes of limitations and of repose. The plaintiffs appeal. We affirm.

State of Tennessee v. Sherman T. Mason, Jr.
E2003-01037-CCA-R3-CD
Authoring Judge: Judge Jerry L. Smith
Trial Court Judge: Judge Ray L. Jenkins

The trial court revoked the probation of the appellant, Sherman T. Mason, Jr., as a result of his second probation violation warrant. Consequently, he was ordered to serve the balance of his effective twenty-year sentence. On appeal, the appellant argues that the trial court erred in revoking his probation and ordering him to serve out the remainder of his sentence in confinement. We affirm the decision of the trial court.

Paul G. Summers, in his capacity as Attorney General and Reporter for The State of Tennessee v. Estate of James W. Ford., M.D.
W2003-00159-COA-R3-CV
Authoring Judge: Presiding Judge W. Frank Crawford
Trial Court Judge: Judge Robert S. Benham

This is an appeal from the order of the probate court on a claim filed against an estate by the Tennessee Attorney General pursuant to the authority granted by the Nonprofit Corporation Act. The probate court denied the claim in part and granted the claim in part by various rulings concerning the existence of a nonprofit public benefit corporation for operation of child daycare centers, the ownership of assets thereof, and continued operation of the centers. The estate appeals and the Attorney General appeals. We affirm in part, reverse in part, and remand with directions.
 

State of Tennessee v. Robert Dennis Heisinger
M2002-01217-CCA-R3-CD
Authoring Judge: Judge Jerry L. Smith
Trial Court Judge: Special Judge John H. Peay

The appellant, Robert Dennis Heisinger, was convicted by a jury of one count of theft of property valued at $10,000 or more but less than $60,000. He was sentenced as a Range II offender to an eight-year sentence in the Tennessee Department of Correction. On appeal, he challenges the length of his sentence and the failure of the trial court to grant him alternative sentencing. We affirm the judgment of the trial court.

State of Tennessee v. Amy Jo Blankenship
M2002-01878-CCA-R3-CD
Authoring Judge: Judge Jerry L. Smith
Trial Court Judge: Judge John W. Rollins

The appellant, Amy Jo Blankenship, entered pleas of guilty to counts of burglary, theft, and failure to appear. After the trial court imposed sentences on each guilty plea, the appellant filed a motion to set aside the judgments claiming that she was coerced into pleading guilty. She later filed a motion to withdraw the guilty pleas under Tennessee Rule of Criminal Procedure 32(f). The trial court denied both motions. This appeal follows. We affirm the decision of the trial court.

Yourl Lee Bass, Jr., pro se v. State of Tennessee
M2003-01235-CCA-R3-PC
Authoring Judge: Judge Robert W. Wedemeyer
Trial Court Judge: Judge Jane W. Wheatcraft

The Petitioner, Yourl Lee Bass, Jr., appeals the trial court's denial of his petition for post-conviction relief. The State has filed a motion requesting that this Court affirm the trial court's denial of relief pursuant to Rule 20, Rules of the Court of Criminal Appeals. The Petitioner fails to assert a colorable claim for post-conviction relief. Accordingly, the State's motion is granted and the judgment of the trial court is affirmed.

Gregory Lynn Hollingsworth, pro se, v. State of Tennessee
M2003-01384-CCA-R3-CO
Authoring Judge: Judge Robert W. Wedemeyer
Trial Court Judge: Judge Robert L. Holloway

The Petitioner, Gregory Lynn Hollingsworth, appeals the trial court's denial of his petition for habeas corpus relief. The State has filed a motion requesting that this Court affirm the trial court's denial of relief pursuant to Rule 20, Rules of the Court of Criminal Appeals. The Petitioner fails to assert a cognizable claim for which habeas corpus relief may be granted. Accordingly, the State's motion is granted and the judgment of the trial court is affirmed.

Steven Loach, pro se. v. Kevin Myers, Warden
M2003-02085-CCA-R3-HC
Authoring Judge: Judge Robert W. Wedemeyer
Trial Court Judge: Judge Robert L. Holloway

The Petitioner, Steven T. Loach, appeals the trial court's denial of his petition for habeas corpus relief. The State has filed a motion requesting that this Court affirm the trial court's denial of relief pursuant to Rule 20, Rules of the Court of Criminal Appeals. The Petitioner fails to assert a cognizable claim for which habeas corpus relief may be granted. Accordingly, the State's motion is granted and the judgment of the trial court is affirmed.

State of Tennessee v. William James Wheeler
M2002-02905-CCA-R3-CD
Authoring Judge: Judge David G. Hayes
Trial Court Judge: Judge Leon C. Burns, Jr.

The Appellant, William James Wheeler, appeals the sentencing decision of the White County Circuit Court. Under the terms of the plea agreement, Wheeler pled guilty to reckless homicide, a class D felony, and arson, a class C felony, and received an agreed six-year sentence. Following a sentencing hearing, the trial court ordered that the six-year sentence be served in the Department of Correction. On appeal, Wheeler argues that he should have received a non-incarcerative sentence. After review, the judgments of the trial court are affirmed.

State of Tennessee v. William Burt Smith
M2002-02988-CCA-R3-CD
Authoring Judge: Judge John Everett Williams
Trial Court Judge: Judge Buddy D. Perry

The defendant was found guilty of one count of selling a Schedule II controlled substance, a Class C felony, and sentenced to eight years in the Tennessee Department of Correction. The defendant contends on appeal that the trial court erred in not appointing another attorney and requiring the defendant to proceed pro se at the motion hearing and trial after several attorneys were allowed to withdraw. We conclude that the defendant has failed to provide this Court with a record of all relevant court dealings. Therefore, we presume that the whole record justifies the trial court's decisions. The judgment of the trial court is affirmed.

Samuel David Land v. State of Tennessee
M2003-00468-CCA-R3-PC
Authoring Judge: Judge Thomas T. Woodall
Trial Court Judge: Judge Timothy L. Easter

Petitioner, Samuel David Land, appeals from the trial court's dismissal of his petition for post-conviction relief. Petitioner was convicted by a jury for felony evading arrest and driving on a revoked license, second offense, a misdemeanor. For his felony conviction, Petitioner was sentenced as a career offender to twelve years in confinement. Petitioner was sentenced to 11 months and 29 days for the misdemeanor conviction. The sentences were ordered to be served concurrently with each other, but consecutive to a six-year sentence that Petitioner was already serving as a result of a probation violation in a prior case. This Court affirmed Petitioner's convictions on direct appeal. State v. Land, 34 S.W.3d 516 (Tenn. Crim. App. 2000). Following an evidentiary hearing, the trial court denied post-conviction relief. Having reviewed the record on appeal, the applicable law, and the briefs of the parties, we affirm the judgment of the trial court.

Judith Lynn Silvey v. Darrell C. Silvey
E2003-00586-COA-R3-CV
Authoring Judge: Presiding Judge Houston M. Goddard
Trial Court Judge: Chancellor W. Frank Brown, III

In this divorce case the Appellant, Darrell C. Silvey, contends that the Trial Court erred in its allocation of property between himself and the Appellee, Judith Lynn Silvey. We modify the judgment of the Trial Court, affirm as modified and remand. Costs of this appeal are adjudged equally against Mr. and Ms. Silvey.

Arnold Carter v. State of Tennessee
E2003-02887-CCA-R3-PC
Authoring Judge: Presiding Judge Gary R Wade
Trial Court Judge: Judge R. Steven Bebb

The petitioner, Arnold Carter, appeals the trial court's dismissal of his petition for writ of habeas corpus. The State has filed a motion requesting that this Court dismiss the appeal or, in the alternative, affirm the trial court's denial of relief pursuant to Rule 20, Rules of the Court of Criminal Appeals. The petitioner has not established a valid claim for habeas corpus relief. Accordingly, the State's motion is granted and the judgment of the trial court is affirmed.

Marcina Jelks v. The Travelers Insurance Co.
W2003-00927-SC-WCM-CV
Authoring Judge: Joe C. Loser, Jr., Sp. J.
Trial Court Judge: George R. Ellis, 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 employer questions the trial court's findings as to permanency and extent of vocational disability. As discussed below, the panel has concluded the evidence fails to preponderate against the findings of the trial court. Tenn. Code Ann. _ 5-6-225(e) (22 Supp.) Appeal as of Right; Judgment of the Chancery Court Affirmed JOE C. LOSER, JR., SP. J., in which JANICE M. HOLDER, J., and JOE H. WALKER, III, SP. J., joined. Kevin J. Youngberg and Zach C. Luttrell, Allen, Kopet & Associates, Jackson, Tennessee, for the appellant, The Travelers Insurance Company David Hardee, Hardee & Martin, Jackson, Tennessee, for the appellee, Marcina Jelks MEMORANDUM OPINION The employee or claimant, Ms. Jelks, initiated this civil action to recover workers' compensation benefits for a work related injury. The Travelers Insurance Company, insurer of the employer, denied liability. After a trial on the merits, the trial court resolved the issues in favor of the claimant and awarded, inter alia, permanent partial disability benefits based on 25 percent to the body as a whole. Travelers has appealed. 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 appellate tribunal, however, is as well situated to gauge the weight, worth and significance of deposition testimony as the trial judge. Walker v. Saturn Corp., 986 S.W.2d 24, 27 (Tenn. 1998). Conclusions of law are subject to de novo review on appeal without any presumption of correctness. Nutt v. Champion Intern. Corp., 98 S.W.2d 365, 367 (Tenn. 1998). The claimant was working at a food processing plant on November 17, 1999, when she slipped and fell on a wet floor, injuring her low back, neck, right knee and right hip. She had immediate pain, which persists. She was conservatively treated by Dr. Keith Douglas Nord for a cervical and lumbo-sacral back strain. Dr. Nord recommended restricted duty, ordered a nerve conduction study and made a return appointment. The doctor continued seeing the claimant at least until January 15, 21, but testified that she had long since reached maximum medical improvement. He estimated her permanent impairment to be none for the back and neck injury, but conceded she was permanently impaired in her right knee and shoulder. On March 7, 21, Ms. Jelks visited another orthopedic surgeon, Dr. Robert Barnett, who had evaluated her following a previous injury, to be evaluated for her present injury. As part of his examination, Dr. Barnett viewed x-rays taken following the November 1999 accident, compared them with earlier x-rays and determined that there had been anatomic changes in the claimant's low back. Based on his findings, Dr. Barnett assigned an impairment rating of 5 percent to the whole person for the low back injury. The injury was superimposed on her previous injury. The appellant first contends there should be no award of permanent disability benefits because the claimant merely suffered increased pain with no anatomic change, relying solely on Dr. Nord's testimony that there was no anatomic change in the claimant's neck or low back. The argument ignores the doctor's testimony concerning the claimant's right knee and right shoulder. It ignores Dr. Barnett's testimony altogether. The trial court did not err in considering Dr. Barnett's testimony that there was an anatomic change. Moreover, the argument overlooks the long standing principle that an employer takes an employee as the employee is, with all defects and diseases, and assumes the risk of having a weakened condition aggravated by an injury which might not affect a normal person. Modern Upholstered Chair Co. v. Russell, 518 S.W.2d 519, 522 (Tenn. 1974). From a fair interpretation of Dr. Barnett's testimony, the injury aggravated and worsened a pre-existing condition. The argument is without merit. The appellant next argues the trial court erred in awarding the equivalent of five times Dr. Barnett's medical impairment rating without making specific findings of fact. For injuries occurring -2-

James Wohlfahrt, et al., v. Arlene Scavuzzo
W2002-02641-COA-R3-CV
Authoring Judge: Judge David R. Farmer
Trial Court Judge: Judge Jon Kerry Blackwood

Plaintiffs’ insurer appeals award of benefits to Plaintiffs under Plaintiffs’ uninsured/underinsured motorist policy. We affirm.
 

Corey A. Kennerly, pro se., v. Kevin Meyers, Warden and State of Tennessee
M2003-02270-CCA-R3-HC
Authoring Judge: Judge David H. Welles
Trial Court Judge: Judge Robert L. Holloway

The Petitioner, Corey A. Kennerly, appeals the trial court's denial of his petition for habeas corpus relief. The State has filed a motion requesting that this Court affirm the trial court's denial of relief pursuant to Rule 20, Rules of the Court of Criminal Appeals. The Petitioner fails to assert a cognizable claim for which habeas corpus relief may be granted. Accordingly, the State's motion is granted and the judgment of the trial court is affirmed.

Ernest Tarpley, et al, v. Bert Hornyak, et al.
M2002-01466-COA-R3-CV
Authoring Judge: Judge Patricia J. Cottrell
Trial Court Judge: Chancellor Charles K. Smith

Landowners sued to abate a nuisance claiming that a concrete causeway, built over a creek by an adjoining landowner, caused water to flood their property. After hearing from one witness, the trial judge discouraged further proof and instead chose to visit the plaintiffs' land at the next flooding. He subsequently found the causeway to be a nuisance and ordered it removed. We reverse because trial court based its decision solely on the basis of the judge's personal observations.

Thurman Pete Rolland, pro se v. State of Tennessee
M2002-02709-CCA-R3-CO
Authoring Judge: Judge Robert W. Wedemeyer
Trial Court Judge: Judge Cheryl A. Blackburn

The Petitioner, Thurman Pete Rolland, appeals the trial court's dismissal of his third petition for post conviction relief. The State has filed a motion requesting that this Court affirm the trial court's denial of relief pursuant to Rule 20, Rules of the Court of Criminal Appeals. The Petitioner had no authority to file a third petition for post-conviction relief, and the statute of limitations had expired. Accordingly, the State's motion is granted and the judgment of the trial court is affirmed.

State of Tennessee v. Jacob Campbell
M2003-00597-CCA-R3-CD
Authoring Judge: Judge Robert W. Wedemeyer
Trial Court Judge: Judge J. Randall Wyatt, Jr.

A Davidson County jury convicted the defendant, Jacob Edward Campbell, of premeditated first degree murder, felony murder, and robbery, and the trial court merged the two murder convictions into a single offense of first degree murder. Thereafter, the jury sentenced the defendant to life imprisonment with the possibility of parole for first degree murder, and the trial court imposed a ten-year sentence for the robbery conviction to be served consecutively to the defendant's life sentence. On appeal, the defendant contends that: (1) the evidence was insufficient to support his convictions; (2) the trial court erred by admitting into evidence crime scene photographs of the murder victim; (3) the trial court erred by admitting into evidence testimony regarding pills found on the defendant when he was arrested; (4) the trial court erred by allowing a State's witness to read to the jury a summary of the witness's pre-trial statement to police; (5) the trial court erred by denying the defendant's request to introduce a prior recorded statement of an unavailable witness to impeach a State's witness; (6) the trial court erred by not clarifying its jury charge that the jury could not consider evidence introduced at trial concerning the co-defendant; and (7) the trial court erred by ordering that the sentence for robbery run consecutively to the defendant's life sentence. Finding no reversible error, we affirm the trial court's judgments.

State of Tennessee v. Lenzo Sherron A/K/A Salaam Shabazz
W2003-01222-CCA-R3-CD
Authoring Judge: Judge John Everett Williams
Trial Court Judge: Judge Lee Moore

The defendant was convicted of aggravated robbery, a Class B felony, and sentenced to ten years as a standard offender. The defendant has filed a pro se appeal of right of his conviction, posing the following issues for our review: 1) Whether the evidence was sufficient beyond a reasonable doubt to support the defendant’s conviction for aggravated robbery; 2) Whether the State improperly withheld exculpatory and impeachment evidence; and 3) Whether the trial court failed to investigate a conflict of interest before appointing new counsel. After careful review, we affirm the conviction.

Odean Cooper v. State of Tennessee
W2003-01518-CCA-R3-PC
Authoring Judge: Judge Joe G. Riley
Trial Court Judge: Judge Joseph H. Walker, III

The petitioner appeals the lower court’s denial of his post-conviction relief petition following his guilty plea to possession of less than .5 grams of cocaine with intent to deliver. On appeal, the petitioner contends: (1) he received ineffective assistance of counsel; and (2) he did not knowingly and voluntarily enter his guilty plea. We affirm the judgment of the post-conviction court.

State of Tennessee v. Christopher Michael Schmidt
W2003-02121-CCA-R3-CD
Authoring Judge: Judge Alan E. Glenn
Trial Court Judge: Judge Jon K. Blackwood

This matter is before the Court upon the State’s motion to affirm the judgment of the trial court pursuant to Rule 20, Rules of the Court of Criminal Appeals. The Appellant, Christopher Michael Schmidt, appeals the trial court’s denial of a writ of habeas corpus. The only issue for this Court’s review is whether the trial court committed error by its order of transfer of the Appellant to the temporary custody of the State of Delaware. Finding no error committed by the trial court, this Court concludes that the judgment of the trial court should be affirmed.