Floyd Lee Perry, Jr., v. State of Tennessee
W2002-02303-CCA-R3-PC
Authoring Judge: Judge Norma McGee Ogle
Trial Court Judge: Judge William B. Acree, Jr.

The petitioner, Floyd Lee Perry, Jr., filed a petition for post-conviction relief in the Obion County Circuit Court. In his petition, the petitioner raised several issues, with his two chief complaints being that the trial court erred by failing to charge the jury on the lesser-included offenses of felony murder and that trial counsel was ineffective. Subsequent to an evidentiary hearing, the postconviction court dismissed the petition and the petitioner timely appealed. Upon review of the record and the parties’ briefs, we affirm the judgment of the post-conviction court.

Diann Parnell v. Victor L. Ivy, Peter J. Dauster, Hardee, Martin, Jaynes & Ivy, P.A., C. Wesley Fowler and Glankler Brown, PLLC
W2003-00023-COA-R3-CV
Authoring Judge: Judge Holly M. Kirby
Trial Court Judge: Judge Roy B. Morgan, Jr.

This is a legal malpractice case. The client filed suit in federal court against a municipality for the
death of her husband under the Governmental Tort Liability Act and U.S.C. § 1983. The federal
court dismissed the GTLA claim but retained the §1983 claims. The client dismissed her attorneys, hired new counsel and filed the GTLA claim in state court. The state court dismissed the GTLA claim because, while the GTLA claim was pending in federal court, the applicable statute of limitations expired. The client sued her original attorneys for malpractice. Shortly thereafter, the client settled the remaining § 1983 claims against the municipality. The defendant attorneys filed a motion for summary judgment in the malpractice case, arguing that the settlement with the municipality on the §1983 claims mandated dismissal of the legal malpractice claim. The trial court granted the summary judgment motion. The client appealed. We reverse, holding that the damages sought in the legal malpractice lawsuit are separate and distinct from the damages sought in the underlying lawsuit, and therefore settlement of the underlying lawsuit does not shield the former attorneys from liability.
 

State of Tennessee v. Atta Najjar
W2003-00329-CCA-R3-CD
Authoring Judge: Judge John Everett Williams
Trial Court Judge: Judge Carolyn Wade Blackett

The defendant was convicted of aggravated rape and aggravated robbery. He contends on appeal that 1) the evidence was insufficient to support the convictions, and 2) the trial court erred in instructing the jury as to aggravated rape. The judgment for aggravated robbery is affirmed. We conclude that a constructive amendment of the indictment for aggravated rape occurred because the jury was permitted to convict the defendant based on an element different from that which was charged or included within the indictment. Accordingly, the judgment for aggravated rape is reversed.

Stacey F. Baldon v. State of Tennessee
W2003-00763-CCA-R3-PC
Authoring Judge: Presiding Judge Gary R Wade
Trial Court Judge: Judge Joseph H. Walker, III

The petitioner, Stacey Baldon, appeals from the trial court's denial of post-conviction relief. The issues presented for review are whether the petitioner was denied the effective assistance of counsel and whether the guilty pleas were knowingly and voluntarily entered. The judgment is affirmed.

State of Tennessee v. Gary Allen Larkins, Jr.
E2003-00404-CCA-MR3-CD
Authoring Judge: Judge Joseph M. Tipton
Trial Court Judge: Judge Phyllis H. Miller

A Sullivan County Criminal Court jury convicted the defendant, Gary Allen Larkins, Jr., of attempted aggravated assault, a Class D felony; resisting arrest, a Class B misdemeanor; and disorderly conduct, a Class C misdemeanor, and the trial court sentenced him to concurrent sentences of seven years, six months, and thirty days, respectively. The defendant appeals, claiming that the evidence is insufficient to support his convictions. We affirm the defendant’s convictions but remand the case for entry of a corrected judgment for the attempted aggravated assault.

State of Tennessee v. James Lusk, Jr.
E2003-00941-CCA-R3-CD
Authoring Judge: Judge Joseph M. Tipton
Trial Court Judge: Judge Rebecca J. Stern

The defendant, James Lusk, Jr., appeals from his twenty-five-year sentence imposed by the Hamilton County Criminal Court following his guilty plea to attempted first degree murder, a Class A felony. The defendant claims that the trial court failed to apply and weigh mitigating factors properly. We affirm the judgment of the trial court.

State of Tennessee v. Jimmy David McElroy
E2003-00943-CCA-R9-CD
Authoring Judge: Judge Joe G. Riley
Trial Court Judge: Judge R. Steven Bebb

The state in this interlocutory appeal challenges the McMinn County trial court’s order granting the defendant’s motion to suppress evidence seized pursuant to a search warrant. In suppressing the evidence, the trial court found the informant’s information in the affidavit referred to a different property location than the property authorized to be searched; therefore, the trial court found a lack of probable cause for the issuance of the search warrant. Upon review of the record and the applicable law, we affirm the trial court’s order granting the motion to suppress.

Kimberly Clark v. Hardee's Food Systems, Inc.,
M2002-02942-WC-R3-CV
Authoring Judge: Allen W. Wallace, Sr.J.
Trial Court Judge: Tom E. Gray, Chancellor
This workers' compensation appeal has been referred to the Special Workers' Compensation Appeal Panel of the Supreme Court in accordance with Tennessee Code Annotated Section 5-6-225(e)(3) for hearing and reporting to the Supreme Court of findings of fact and conclusions of law. The appellant, employee, has appealed the trial court's decision in this case, holding the employee had failed to carry the burden of proof as to causation, and denied benefits. As discussed below, the panel has concluded the judgment should be affirmed. Tenn. Code Ann. _ 5-6-225(e) (22 Supp.) Appeal as of Right; Judgment of the Chancery Court Affirmed ALLEN W. WALLACE, SR.J., in which ADOLPHO A. BIRCH, JR., J. and JOHN K. BYERS, SR.J., joined. D. Andrew Saulters, Nashville, Tennessee for appellant, Kimberly Clark Vanessa L. Comerford, Brentwood, Tennessee for appellee, Hardee's Food Systems, Inc., et al. MEMORANDUM OPINION ISSUES The issues in this appeal as stated by the employee and employer are whether or not the trial court erred in ruling the employee failed to carry the burden of proof as to medical causation due to inconsistencies in her trial testimony and history given medical professionals. Employee alleges in this appeal that the inconsistencies in her testimony as well as her history given to medical professionals were caused by confusion on her part, or that the alleged inconsistencies were misinterpretations. -2-

John Thomas Still v. Commissary Operations, Inc.
M2003-00528-WC-R3-CV
Authoring Judge: Allen W. Wallace, Sr. J.
Trial Court Judge: Ross H. Hicks, Circuit Judge
This workers' compensation appeal has been referred to the Special Workers' Compensation Appeals Panel of the Supreme Court in accordance with Tennessee Code Annotated Section 5-6-225(e)(3) for hearing and reporting to the Supreme Court of findings of fact and conclusions of law. The trial court determined that I(1) Employee was entitled to the current cause of action pursuant to Tennessee Code Annotated Section 5-6-241(a)(2). The employee sustained no additional vocational disability over and above the previously awarded twenty-five percent. As discussed below, the panel has concluded the judgment of the trial court should be affirmed. Tenn. Code Ann. _ 5-6-225(e) (22 Supp.) Appeal as of Right; Judgment of the Circuit Court Affirmed ALLEN W. WALLACE, SR. J., in which ADOLPHO A. BIRCH, JR., J. and JOHN K. BYERS, SR. J., joined. Aubrey T. Givens, Madison, Tennessee, for appellant, John Thomas Still Mark A. Baugh, Nashville, Tennessee, for appellee, Commissary Operations, Inc. MEMORANDUM OPINION FACTS On March 13, 1998, the plaintiff injured his back at work. At trial, the parties stipulated that the plaintiff's injury was work-related, that it occurred during the course and scope of his employment, and that proper notice was given. The incident was compensable at a rate of $492. Thus, the only issue at trial was the extent of permanent vocational disability and whether the award should be paid in a lump sum. At the conclusion of proof, the trial court found that the plaintiff had sustained a twenty-five percent vocational disability to the body which equated to two and a half times the bodily impairment. The trial court further ruled that the plaintiff's rights pursuant to Tennessee Code Annotated Section 5-6-241(2)(b) were not impaired. Subsequent to the original case, the plaintiff returned to his employment with Commissary Operations, Inc. However, in July 22, he was terminated. The plaintiff then filed a new cause of action pursuant to Tennessee Code Annotated Section 5-6-(a)(2) in an attempt to increase his previously adjudicated award of twenty-five percent vocational disability. In the second case, the trial court determined that reconsideration of the previous award was required under the facts and circumstances of the plaintiff's loss of employment with Commissary Operations, Inc. However, it did not award the plaintiff any additional vocational disability The following facts were adduced at the second trial. After his March 1998 injury, the plaintiff was ultimately released to return to work at Commissary Operations, Inc. Dr. Cushman, the plaintiff's treating physician, assigned the plaintiff a ten percent permanent impairment to the body as a whole. Dr. Cushman told the plaintiff that he should use "common sense" and temporarily refrain from lifting heavy objects. Dr. Cushman did not give the plaintiff any permanent restrictions. He testified that he instructed the plaintiff that if he had any problems to return to see him. Dr. Cushman stated that he did not treat the plaintiff again. The plaintiff returned to work in October 1998, and he continued there until July 22. The plaintiff testified regarding problems that he suffered when he returned to work after his back injury. He stated that many of his tasks caused him pain. He also stated that he could not sit for more than three hours in the same position. The plaintiff acknowledged that he did not complain to his supervisors about the alleged pain he suffered. He maintained that it was because he was afraid he might lose his job. The plaintiff's wife also testified regarding the plaintiff's pain and decreased activity. On September 6, 21, the plaintiff underwent a physical for the Department of Transportation. The physical was performed at Concentra Medical Center. As part of the examination, the plaintiff filled out a form indicating that he had had a prior back and spinal injury. However, he also stated in the forms that he was not having any problems from his 1998 injury and that he did not have any restrictions with job activities. The plaintiff tried to explain that he filled out the forms as he did because on "that date it wasn't hurting." Following the physical, the plaintiff was re-certified to continue driving. In October 21, while planting flowers, the plaintiff injured himself at his home. Three to four weeks after the accident, the plaintiff went to see his own physician, Dr. Peach. On February 19, 22, Dr. McCarty, an orthopedic specialist to whom Dr. Peach had referred the plaintiff, performed surgery on the plaintiff's shoulder. On March 7, 22, the plaintiff filled out a form requesting Family or Medical Leave. The form stated that the plaintiff was entitled to twelve weeks of unpaid leave. However, the plaintiff contends that he was approved for six months leave. The plaintiff was already on leave when he completed the form. -2-

Robert Terry Moore v. The Town of Collierville, et al
W2002-02647-SC-R3-CV
Authoring Judge: Justice E. Riley Anderson
Trial Court Judge: Judge John R. McCarroll, Jr.

In this workers’ compensation appeal, we must determine whether an employer is liable to a health insurer who paid necessary and reasonable medical expenses incurred by an employee but did not intervene in the workers’ compensation claim to protect its interest. Although the trial court found that the treatment was necessary and reasonable, it further found that the employer was not liable for the medical expenses paid by the employee’s health insurer because the insurer failed to intervene and prove its interest. The employee appealed to the Special Workers’ Compensation AppealsPanel, which transferred the case for full Court review without a recommendation. After reviewing the record and applicable authority, we have determined that the employer is liable to the employee’s health insurer for all reasonable and necessary medical expenses and that the health insurer is not required to intervene in the workers’ compensation suit. Because the record does not fully develop the nature and extent of the expenses paid by the health insurer, we remand to the trial court for that purpose and further action consistent with this opinion.

Ginnie Leach and J.T. Hill, Jr. v. Tim Taylor and Larry Taylor, individually and doing business as Hunt Funeral Home
W2002-01091-SC-R11-CV
Authoring Judge: Chief Justice Frank F. Drowota, III
Trial Court Judge: Judge Clayburn L. Peeples

We granted permission to appeal in this case to determine whether the Court of Appeals erred in holding that the complaint failed to state a claim for intentional infliction of emotional distress. We also consider Defendants' contention that the Court of Appeals erred in holding that Plaintiffs' cause of action was not time-barred because the discovery rule applies to this case. We hold that Plaintiffs' complaint is sufficient to state a claim for intentional infliction of emotional distress. The complaint alleges all the elements of the cause of action. We also hold that the discovery rule tolled the statute of limitations in this case. Plaintiffs could not have been expected to know, in the exercise of reasonable diligence, that Defendants' alleged statements were false, and therefore could not have been expected to know that an injury had occurred because of the false statements. Accordingly, the holding of the Court of Appeals is affirmed in part and reversed in part, and this case is remanded to the trial court.

Mary Lee Dotson v. William Ennis Dotson
M2002-02578-COA-R3-CV
Authoring Judge: Presiding Judge William C. Koch, Jr.
Trial Court Judge: Judge Jim T. Hamilton

This appeal involves the dissolution of a 28-year marriage by default. The wife filed for divorce in the Chancery Court for Maury County and, after the husband failed to file a timely answer, filed for a default judgment. The trial court granted the default judgment even though the husband had filed an answer and counterclaim on the day before the hearing and later denied the husband's Tenn. R. Civ. P. 55.02 motion to set aside the default. The husband has appealed. We have determined that the trial court properly granted the default judgment but erred by refusing to later set the default judgment aside.

State of Tennessee v. Derrick L. Dillard
M2002-03089-CCA-R3-CD
Authoring Judge: Judge Thomas T. Woodall
Trial Court Judge: Judge Robert E. Burch

Defendant, Derrick L. Dillard, argues in this appeal that the trial court erred by imposing an illegal sentence following a hearing in which the trial court found that Defendant had violated the terms and conditions of his Community Corrections sentence. The State agrees that the trial court erred. After a full review of the record, we reverse the judgment of the trial court and remand for entry of an order consistent with this opinion.

Alexander C. Wells, v. Tennessee Board of Regents, et al.
M2003-00591-COA-R3-CV
Authoring Judge: Presiding Judge William C. Koch, Jr.
Trial Court Judge: Chancellor Carol L. McCoy

This appeal is the continuation of a protracted dispute between Tennessee State University and a faculty member stemming from his termination for sexually harassing a student. After the courts vacated the dismissal, the university and the Tennessee Board of Regents established a process of transitional reinstatement. The professor objected and refused to report to work. Thereafter, the professor filed a petition in the Chancery Court for Davdison County to hold the university and the board in contempt. The trial court heard the matter without a jury and declined to hold either the university or the board in contempt. The professor has appealed. We affirm because orders declining to grant contempt petitions are not appealable.

Janet Lynn Ditzer v. Curtis J. Ditzer
E2003-00707-COA-R3-CV
Authoring Judge: Judge Herschel P. Franks
Trial Court Judge: Judge W. Neil Thomas, III

The Trial Court ordered the father to pay one-half of the daughter's college expenses pursuant to the parties' Marital Dissolution Agreement, and reimburse the mother for one-half of expenses already paid. On appeal, we affirm.

Dinah Faye Coffman v. Dtr Tennessee, Inc.
E2003-00641-WC-R3-CV
Authoring Judge: Roger E. Thayer, Sp. J.
Trial Court Judge: Hon. Ben K. Wexler, Circuit Judge
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. The trial court awarded the employee 66 2/3 percent permanent partial disability. The employer insists the evidence preponderates against the award. Judgment of the trial court is modified to indicate the award is to each arm and the judgment as modified is affirmed. Tenn. Code Ann. _ 5-6-225(e) (1999) Appeal as of Right; Judgment of the Circuit Court is Modified and Affirmed. ROGER E. THAYER, SP. J., in which E. RILEY ANDERSON, J., and JOHN K. BYERS, SR. J., joined. Clarence Risin, of Knoxville, Tennessee, for Appellant, DTR Tennessee, Inc. James M. Davis, of Morristown, Tennessee, for Appellee, Dinah Faye Coffman. MEMORANDUM OPINION The employer, DTR Tennessee, Inc., has appealed from the entry of a judgment awarding the employee, Dinah Faye Coffman, 66 2/3 percent permanent disability. Facts The employee was thirty-seven years of age and dropped out of school when she was in the ninth grade. She later obtained a G.E.D. certificate. Most of her prior work experience was in general labor work. She has been a smoker for many years. She was working for DTR Tennessee on an assembly line where she operated several machines. The work involved repetitive use of her hand and arms. During January 1999, her hands were bothering her to such extent she notified company officials who referred her to a doctor. The doctor referred her to an orthopedic surgeon, Dr. Gorman, for treatment. She eventually became dissatisfied with him and decided to find another orthopedic doctor. She chose Dr. Minkin and he diagnosed her condition as bilateral carpal tunnel syndrome. He operated on her right arm during April 2. Shortly after this surgery, she had a tonsillectomy and a biopsy indicated she had throat cancer. She was treated with chemotherapy and radiation. After having about nine surgical procedures for the cancer, it was determined she was cancer free and she returned to Dr. Minkin who performed surgery on her left arm during January 22. Ms. Coffman testified the surgery on her arms had improved her condition to some extent but she still had problems using them. She found it difficult to hold objects and often dropped them. She said it was hard to put her makeup on or comb her hair; that she still had some numbness and tingling; she could not do general housework; and she could not work at any of the jobs she had held in the past. She indicated she was drawing Social Security Disability benefits for her total condition and at one point during her examination, she said that her not being able to work was partly due to her cancer. Dr. Paul W. Gorman, an orthopedic hand surgeon, testified by deposition and said he began treating her during June 1999. He said she had weakness in grip strength in both hands and the muscles were tender to touch. His diagnosis was: (1) chronic tobaccoism, (2) mild degree of carpal tunnel syndrome on the right, and (3) some mild degree of cubital tunnel syndrome, which is tenderness over the ulnar nerve at the elbow. The doctor was of the opinion that her smoking was contributing to her symptoms; that her problems had eventually resolved and that she had no permanent disability. Dr. Bruce I. Minkin, an orthopedic hand surgeon, also testified by deposition. When he first saw her during November 1999, he diagnosed her as having bilateral carpal tunnel syndrome and performed the release procedures on each arm. The second procedure was much later because of her treatment for throat cancer. He found medical impairment to be 7 percent to the left arm and 3 percent to the right arm. He also recommended she stop smoking but did not attribute the smoking as a cause or contributing cause of her carpal tunnel problem. Dr. William J. Gutch, a retired orthopedic surgeon, testified by deposition. He did not treat her but saw her only for an independent medical examination during July 21, which was after the first arm surgery and before the last arm surgery. His diagnosis was bilateral carpal tunnel syndrome and he felt she had a 17 percent impairment to the whole body or a 9 percent impairment to each arm. Dr. Gutch did not see any connection between her smoking habit and the injury to her arms. Standard of Review Our review of the case is de novo accompanied by a presumption that the findings of the trial -2-

Nps Energy Services, Inc., Appellant v. Nelson E. Moore, Appellee
M2002-02718-WC-R3-CV
Authoring Judge: Frank G. Clement, Jr., Sp. J
Trial Court Judge: Hon. C.L. Rogers, Judge
This workers' compensation appeal has been referred to the Special Workers' Compensation Appeals Panel in accordance with Tenn. Code Ann. _ 5-6-225(e)(3) for hearing and reporting findings of fact and conclusions of law. The employer/appellant contends: (1) that the trial court erred in determining that the employee suffered an injury arising out of and in the course of his employment, and (2) that the trial court erred in awarding forty percent (4%) permanent partial disability to the body as a whole. As discussed herein, the panel has concluded that the judgment of the trial court should be affirmed. Tenn. Code Ann. _ 5-6-225(e)(3) Appeal as of Right; Judgment of the Circuit Court Affirmed. Frank G. Clement, Jr., Sp. J., delivered the opinion, in which Frank F. Drowota III, C.J., and Joe C. Loser, Jr., Sp. J., joined. Raymond S. Leathers, Ruth, Howard, Tate & Sowell, Nashville, Tennessee, for the appellant NPS Energy Services, Inc. George E. Copple, Jr., Nashville, Tennessee, for the appellee Nelson E. Moore. Memorandum Opinion Nelson E. Moore (Moore), appellee, is a journeyman painter who was employed by NPS Energy Services, Inc. (NPS), appellant, from September 1998 to December 1998. Moore was hired by NPS to abate lead from the Cumberland City Generating Plant of the Tennessee Valley Authority, a customer of NPS. On November 4, 1998, while working in the basement of the Cumberland City facility, Moore claims to have suffered a compensable injury as a result of exposure to airborne cleaning acids and caustic materials. NPS denies the assertion that Moore was exposed to or injured 1 by acids or caustic materials while employed by NPS. NPS filed the complaint for declaratory judgment and Moore filed a counterclaim. The matter was tried on October 2, 22. The trial court entered its final order the following day finding that Moore was exposed to chemicals while employed by NPS that caused occupationally induced asthma and awarded Moore forty percent (4%) permanent partial disability to the body as a whole. NPS filed this appeal. Our review is de novo upon the record, 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). We are not bound by the trial court's findings but, instead, conduct an independent examination of the record to determine where the preponderance of evidence lies. Galloway v. Memphis Drum Serv., 822 S.W.2d 584, 586 (Tenn. 1991). Nevertheless, considerable deference must be accorded to the trial court's factual findings on issues related to the credibility of witnesses and weight to be given their testimony. Krick v. City of Lawrenceburg, 945 S.W.2d 79, 712 (Tenn. 1997). Conclusions of law, however, 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). On November 4, 1998, Moore was working in the basement area of the Cumberland Furnace facility. This area is very large, approximately 5 feet wide, 3 feet deep and 2 feet high. The unit Moore was working on was shut down for 8 days for scheduled maintenance. Moore was wearing regular painting work clothes. Needing a "scissor lift" to perform his duties, Moore went to an area of the basement near what is referred to as the minor maintenance room. He found two scissor lifts, but both were missing an electrical box that was necessary to operate the lift. Moore searched in the maintenance room, and then, he went up to the next floor. Still unsuccessful in his search for an electrical box, Moore returned to the basement in an area near the minor maintenance room at which time Moore claims his nose started running, his eyes started burning and began to water, and his throat became sore. He also alleges that his face felt like it had needles in it. Seeing a sign that read "Warning, Acid" , Moore went to a nearby bathroom and washed his eyes and face with water. Moore claims that he felt these sensations for 3 to 6 seconds. The pricks and tingling sensations stopped, and other sensations generally subsided as well. Prior to January 1998, the Cumberland City facilityhad been using sulphuric acid and sodium hydroxide, identified as "caustic", to remove impurities from resin beds in the water purification system. In the area where Moore claims to have been injured, there were signs which read: "Danger: Caustic Lines", "Danger: Acid Line", "Danger: Acid Caustic Outlet", and "Danger: Acid and Caustic." Other signs indicated the lines were pressurized, but the evidence suggested that the lines had not been under pressure for months. At the time of the incident, the facility was no longer using acid or caustic for purification, however, the chemicals remained in tanks and pipes in the area at issue. NPS insists that Moore did not suffer an injury arising out of his employment and during the course of his employment. Specifically, NPS contends there was no evidence of a chemical leak on November 4, 1998. Moreover, NPS contends that even if Moore were exposed, the chemicals were 2

Jerry McGeehee, et al., v. Michael W. Davis
M2002-03062-COA-R3-CV
Authoring Judge: Judge Alan E. Highers
Trial Court Judge: Judge Robert E. Lee Davies

This case is an appeal from a wrongful death claim in which the Defendant was found only fifty percent at fault. The Plaintiffs appeal to this Court for review of two procedural issues. For the following reasons, we affirm the trial court.

In Re S.M.
M2003-00422-COA-R3-PT
Authoring Judge: Presiding Judge William C. Koch, Jr.
Trial Court Judge: Judge Betty Adams Green

This appeal involves the termination of the parental rights of a biological father whose daughter was surrendered to a licensed child-placing agency without his knowledge. Soon after notifying the biological father that it had custody of the child, the agency filed a petition in the Davidson County Juvenile Court seeking to terminate the father’s parental rights. Following a bench trial, the juvenile court concluded that the biological father had abandoned his daughter and that the child’s best interests required terminating her biological father’s parental rights. We have determined that the agency has failed to present clear and convincing evidence that the biological father has abandoned his daughter.
 

In Re S.M. - Concurring
M2003-00422-COA-R3-PT
Authoring Judge: Judge William B. Cain
Trial Court Judge: Judge Betty Adams Greene

I disagree with the standard of review employed by the court in this case for the reasons
discussed at more length in In Re Z.J.S., No. M2002-02235-COA-R3-JV, 2003 WL 21266854, at
*18-22 (Tenn.Ct.App. June 3, 2003) (No Tenn. R. App. P. 11 application filed; Estate of Acuff v.
O’Linger, 56 S.W.3d 527, 533-37 (Tenn.Ct.App. 2001). However, I would reach the same result
employing the standard of review recited in Acuff v. O’Linger, 56 S.W.3d 527 at 537. Therefore,
I concur with the court’s decision to reverse the order terminating R.G.L.’s parental rights.

Harry David Johnson v. State of Tennessee
E2002-01949-CCA-R3-PC
Authoring Judge: Judge Norma McGee Ogle
Trial Court Judge: Judge R. Jerry Beck

The petitioner, Harry David Johnson, was convicted in the Sullivan County Criminal Court of the first degree murder of his wife, Katherine Trotter Johnson, and he received a sentence of life imprisonment. Subsequently, the petitioner filed for post-conviction relief, alleging that he did not receive effective assistance of counsel during his trial. The post-conviction court held an evidentiary hearing, ultimately determining that the petitioner had failed to prove by clear and convincing evidence that trial counsel was ineffective. The petitioner timely appealed this ruling. Upon review of the record and the parties' briefs, we reverse the judgment of the post-conviction court and remand for a new trial.

State of Tennessee v. Gregory Skinner
W2003-00336-CCA-R3-CD
Authoring Judge: Judge Alan E. Glenn
Trial Court Judge: Judge Clayburn L. Peeples

The defendant, Gregory Skinner, was convicted of two counts of sale of a Schedule II controlled substance, a Class C felony, and one count of sale of a counterfeit controlled substance, a Class E felony, and sentenced as a Range II, multiple offender to ten years for each of the two counts of sale of a Schedule II controlled substance, to be served concurrently, and to three years for the sale of a counterfeit controlled substance, to be served consecutively, for a total sentence of thirteen years. This sentence was ordered to be served consecutively to a previous sentence. The defendant appeals, arguing that the evidence was insufficient to support his convictions and that the trial court erred in applying a nonstatutory factor in setting his sentence. Following our review, we affirm the judgments of the trial court but remand for entry of corrected judgments in Counts 2 and 3.

Dexter Jones v. State of Tennessee
M2003-01229-CCA-R3-PC
Authoring Judge: Judge Joseph M. Tipton
Trial Court Judge: Judge John D. Wootten, Jr.

The petitioner, Dexter P. Jones, appeals from the Wilson County Criminal Court's denial of post-conviction relief from his four convictions for assault, a Class A misdemeanor, and resulting consecutive eleven-month, twenty-nine-day sentences. He contends that his guilty pleas were not knowingly, voluntarily, and intelligently made because the trial court did not advise him that he was waiving a double jeopardy claim. We affirm the trial court's denial of the petition.

State of Tennessee v. Glen Holt
E2003-01100-CCA-R3-CD
Authoring Judge: Judge Robert W. Wedemeyer
Trial Court Judge: Judge E. Eugene Eblen

A Morgan County jury found the Defendant, Glen Holt, guilty of first degree felony murder and aggravated robbery. The trial court sentenced the Defendant to nine years in prison for the aggravated robbery charge, to be served concurrently with a life sentence for the murder conviction. The Defendant appeals, contending: (1) that the evidence was insufficient to support his convictions; (2) that the trial court erred when it allowed a photograph, offered by the prosecution, to be admitted into evidence without a proper foundation; (3) that the jury did not follow the trial court’s instructions with regard to felony murder; and (4) that he did not knowingly, voluntarily and intelligently waive his constitutional right to testify in his own defense. Although we conclude that issues (1), (2) and (3) are without merit, the record is insufficient for us to determine whether the Defendant personally and knowingly waived his right to testify. Therefore, we remand the case to the trial court for a hearing to determine whether the Defendant’s right to testify was violated, and if so, whether the violation of the Defendant’s right to testify was harmless beyond a reasonable doubt.

State of Tennessee v. Glen Holt - Concurring and Dissenting
E2003-01100-CCA-R3-CD
Authoring Judge: Judge Joseph M. Tipton
Trial Court Judge: Judge E. Eugene Eblen