State of Tennessee v. Lori Ann Duncan
E2003-00423-CCA-R3-CD
Authoring Judge: Judge J. Curwood Witt, Jr.
Trial Court Judge: Judge R. Jerry Beck

Lori Ann Duncan appeals the Sullivan County Criminal Court's revocation of her probationary sentence. Duncan claims that the lower court abused its discretion in ordering her to serve her sentence in incarceration in the Department of Correction. However, we are unpersuaded and affirm the lower court's judgment.

State of Tennessee v. Julius L. Jones
W2002-02336-CCA-R3-CD
Authoring Judge: Judge John Everett Williams
Trial Court Judge: Judge W. Fred Axley

The defendant was convicted of facilitation of felony murder, a Class A felony, and sentenced to twenty-three years. The defendant contends on appeal that the trial court erred in 1) allowing testimony by Dozier that the defendant told her the victim had been involved in the robbery because the statement was inadmissible hearsay, and 2) refusing to admit the prior written statement of Dozier into evidence under Tennessee Rule of Evidence 613(b). We remand for correction of the judgment form to reflect the correct felony classifications. The judgment of the trial court is affirmed in all other respects.

State of Tennessee v. Billy M. Higgins
W2003-00310-CCA-R3-CD
Authoring Judge: Judge Alan E. Glenn
Trial Court Judge: Judge C. Creed McGinley

The defendant, Billy M. Higgins, appeals the revocation of his probation, arguing that the trial court abused its discretion in revoking his probation for failure to complete a drug rehabilitation program. Following our review, we affirm the order of the trial court.

State of Tennessee v. Andre Anthony
W2002-01377-CCA-R3-CD
Authoring Judge: Judge Thomas T. Woodall
Trial Court Judge: Judge Chris B. Craft

Following a jury trial, Defendant, Andre Anthony, was convicted of two counts of forgery over five hundred dollars, one count of forgery over one thousand dollars, one count of criminal attempt to commit first degree murder, and one count of especially aggravated robbery. In his appeal, Defendant argues that (1) the evidence was insufficient to find him guilty beyond a reasonable doubt of attempt to commit first degree murder and especially aggravated robbery; (2) the trial court erred in denying Defendant's motion to suppress evidence obtained through an inventory search of Defendant's vehicle; (3) the trial court erred in failing to instruct the jury that "serious bodily injury" is an element of the offense of especially aggravated robbery; and (4) the trial court erred in ordering Defendant's sentences for attempt to commit first degree murder and especially aggravated robbery to be served consecutively. After a thorough review of the record, we affirm the judgments of the trial court.

State of Tennessee v. Nesha Newsome
W2002-01306-CCA-R3-CD
Authoring Judge: Judge John Everett Williams
Trial Court Judge: Judge Joseph B. Dailey

The defendant was convicted of especially aggravated kidnapping, aggravated kidnapping, aggravated robbery, and robbery. The defendant contends on appeal that the trial court erred in (1) not properly transferring the case from juvenile court, (2) denying her request for a continuance, (3) admitting a tape recorded statement by the defendant, (4) admitting certain photographs of the victim, (5) refusing to allow expert testimony regarding the defendant's mental condition, (6) refusing to allow evidence of a co-defendant's subsequent crimes, (7) failing to instruct the jury on certain lesser included offenses, and (8) sentencing. We conclude that the trial court erred in applying enhancement factors six and ten. The trial court also erred in not applying the mitigating factor (victim released alive) to the especially aggravated kidnapping conviction. The sentence is reduced for (1) aggravated robbery from ten years to nine years, (2) aggravated kidnapping from ten years to nine years, and (3) especially aggravated kidnapping from twenty-one years to twenty years. We reverse the trial court's determination that the sentences should be served consecutively. We remand to the trial court to amend the judgment for case number 01-00564 to reflect that the defendant was a standard violent offender rather than a repeat violent offender. We affirm the judgments of the trial court in all other respects.

State of Tennessee v. Jermaine Reshawn Scott, Anthony Ray Tharpe, and Felicia Ann Taylor
W2002-01812-CCA-R3-CD
Authoring Judge: Judge John Everett Williams
Trial Court Judge: Judge Julian P. Guinn

Each of the defendants in this case was convicted of drug charges following the search of their home. They contend that the search warrant was invalid because of material misrepresentations and lack of probable cause. They also contend the trial court erred in sentencing each of them. After careful review of the record, we conclude the trial court did not err in failing to suppress the evidence obtained as a result of the search warrant, and we affirm each defendant’s conviction. After de novo review of the trial court’s sentencing determinations, we modify the sentences of defendants Scott and Tharpe. The sentence of Felicia Ann Taylor is affirmed. Accordingly, the case is remanded for entry of corrected judgments of conviction consistent with this opinion.

State of Tennessee v. Travis Anderson
W2003-00674-CCA-R3-CD
Authoring Judge: Judge Robert W. Wedemeyer
Trial Court Judge: Judge Bernie Weinman

The Defendant, Travis Anderson, pled guilty to two counts of aggravated burglary, with an agreed sentence of three years on each count to be served concurrently. Pursuant to the plea agreement, the trial court was to determine whether the Defendant merited for alternative sentencing. Following a sentencing hearing, the trial court denied the Defendant’s application for judicial diversion, suspended his sentence for three years, and placed the Defendant on probation for three years. On appeal, the Defendant contends that the trial court erred in refusing to grant his application for judicial diversion. Finding no error, we affirm the trial court’s judgments.

State of Tennessee v. Charles Johnston
E2002-02028-CCA-R3-CD
Authoring Judge: Judge J. Curwood Witt, Jr.
Trial Court Judge: Judge Lynn W. Brown

Charles Johnston appeals from his Carter County Criminal Court conviction of contempt of court. He claims that the evidence does not sufficiently support the conviction, that his due process rights were violated in the conviction proceedings, that the court erroneously admitted an audiotape of prior proceedings in the general sessions court, that he was sentenced too harshly and unfairly denied judicial diversion, and that the lower court abused its discretion in setting his appeal bond. Because we discern no reversible error, we affirm the defendant's conviction and sentence.

Meaji Nisley Lockmiller v. Mark Lockmiller
E2002-02586-COA-R3-CV
Authoring Judge: Judge Charles D. Susano, Jr.
Trial Court Judge: John B. Hagler, Jr.
In this divorce case, the parties contested, among other things, the issues of divorce and the custody of their minor children, Victoria Grace Lockmiller (DOB: August 27, 1994) and James Roman Lockmiller (DOB: November 24, 1998). Expressing its belief that Mark Douglas Lockmiller ("Father") would not tell "a knowing untruth," the trial court granted him a divorce from Meaji Lynn Nisley Lockmiller ("Mother") on the ground of inappropriate marital conduct and designated him as the primary residential parent of the parties' children. Wife appeals, contending that the evidence preponderates against the trial court's award of primary custody to Father. We affirm.

State of Tennessee v. Ricky Raymond Bryan
M2002-03015-CCA-R3-CD
Authoring Judge: Judge Thomas T. Woodall
Trial Court Judge: Judge James K. Clayton, Jr.

Defendant, Ricky Raymond Bryan, was first tried and convicted of the first degree murder of Charlotte Scott in 1995. At the conclusion of Defendant's first trial, the trial judge, acting in his capacity as thirteenth juror, granted Defendant's motion for a new trial. Defendant's second trial was held in April 1996, and the jury once again found Defendant guilty of first degree murder and sentenced him to life imprisonment. On appeal, this Court remanded for a new trial because the introduction of Defendant's statement of November 15, 1994, violated Defendant's Fifth Amendment right against self-incrimination. At the same time, this Court held that the evidence was sufficient to sustain the conviction. State v. Bryan, 990 S.W.2d 231, 241 (Tenn. Crim. App. 1998). Following a third jury trial, Defendant was again convicted of first degree murder and sentenced by the jury to life imprisonment without the possibility of parole. Defendant now appeals his conviction arguing that the evidence was insufficient to show beyond a reasonable doubt that Defendant was the person who killed the victim, Charlotte Scott. Alternatively, Defendant argues that the evidence was insufficient to establish that Defendant acted with premeditation and deliberation as required at the time of the offense in order to sustain a conviction of first degree murder. Defendant also contends that the evidence was insufficient to support the jury's finding that the murder was especially heinous, atrocious, or cruel in that it involved torture or serious bodily injury beyond a reasonable doubt. After a thorough review of the record, we affirm the judgment of the trial court.

Charles Galbreath v. Board of Professional Responsibility
M2002-02505-SC-R3-CV
Authoring Judge: Justice Adolpho A. Birch, Jr.
Trial Court Judge: Judge James L. Weatherford

We have this case on direct appeal, pursuant to Tennessee Supreme Court Rule 9, section 1.3, from the judgment of the circuit court approving the order of a hearing committee of the Board of Professional Responsibility that suspended Charles F. Galbreath, the appellant, from the practice of law for a thirty-day period. The circuit court essentially adopted the findings of fact and conclusions of law entered by the hearing committee. Galbreath does not contest those factual findings but argues that the sanction imposed is excessive. Upon review of the record and applicable authority, we conclude that the thirty-day suspension is appropriate. Accordingly, we affirm the judgment of the circuit court.

State of Tennessee v. Phillip M. Mullins
M2002-02977-CCA-R3-CD
Authoring Judge: Judge Jerry L. Smith
Trial Court Judge: Judge Leon C. Burns, Jr.

The defendant was indicted by a Putnam County Grand Jury for one count of first degree murder, one count of especially aggravated robbery and one count of especially aggravated burglary. On September 18, 2000, the State filed a Notice of Intent to Seek Punishment of Imprisonment for Life Without Possibility of Parole. The Grand Jury later returned a Superceding Indictment including charges of First Degree Felony Murder, First Degree Premeditated Murder, Especially Aggravated Robbery and Especially Aggravated Burglary. At trial, the trial court reduced the premeditated first degree murder count to second degree murder for consideration by the jury. At the conclusion of the trial, the jury convicted the defendant of felony murder, second degree murder, especially aggravated robbery and especially aggravated burglary, and immediately sentenced the defendant to life without parole on the first degree felony murder count. The trial court merged the defendant's second degree murder conviction into the first degree felony murder conviction and sentenced the defendant to twenty-five (25) years for the especially aggravated robbery conviction and to twelve (12) years for the especially aggravated burglary conviction. The trial court ran the twenty-five (25) year sentence consecutive to the life without parole sentence and ran the twelve (12) year sentence concurrent to the twenty-five (25) year sentence. The defendant appeals from the trial court based on four issues: (1) Whether the trial court erred in instructing the jury; (2) whether the evidence was sufficient to establish the defendant's guilt beyond a reasonable doubt; (3) whether the Tennessee sentencing scheme for life imprisonment without parole is unconstitutional if the aggravating circumstances, contained in Tennessee Code Annotated section 39-13-204, are not part of the indictment; and (4) whether the Tennessee sentencing scheme for life imprisonment without parole is unconstitutional. We find these issues do not merit a reversal of this conviction and affirm the trial court.

State of Tennessee v. Paul Dennis Reid, Jr.
M2001-02753-CCA-R3-DD
Authoring Judge: Judge Jerry Smith
Trial Court Judge: Judge John H. Gasaway, III

The appellant, Paul Dennis Reid, Jr., was found guilty by a jury of two counts of premeditated murder, two counts of felony murder, two counts of especially aggravated kidnapping, and one count of especially aggravated robbery. The felony murder convictions were merged into the premeditated murder convictions. Thereafter, the jury sentenced the appellant to death based upon the existence of three aggravating circumstances: the appellant had previously been convicted of one or more felonies, other than the present charge, the statutory elements of which involve the use of violence to the person; the murders were committed for the purpose of avoiding, interfering with or preventing a lawful arrest or prosecution of defendant or another; and the murder was especially heinous, atrocious, or cruel in that it involved torture or serious physical abuse beyond that necessary to produce death. The trial court sentenced the defendant as a violent offender to twenty-five years imprisonment for especially aggravated robbery and especially aggravated kidnapping, to run consecutively to his sentences for first degree murder and to a prior out-of-state sentence. On appeal, appellant presents forty-five issues. After an extensive review of the record and the applicable law, we find that none of these issues warrants a reversal of this case. Therefore, the judgments of the trial court are AFFIRMED.

State of Tennessee v. Benjamin Damron
M2003-00588-CCA-R9-CO
Authoring Judge: Judge John Everett Williams
Trial Court Judge: Judge John W. Rollins
This interlocutory appeal, brought by the State, seeks to answer whether a defendant’s statements made during the third phase of a polygraph examination are admissible evidence. We conclude the trial court correctly suppressed the defendant’s statements because the “post-instrument phase” of the polygraph examination was an integral part of the examination process and not a separate and discrete event. We affirm the judgment from the trial court.

State of Tennessee v. Benjamin Damron - Dissenting
M2003-00588-CCA-R9-CO
Authoring Judge: Judge David G. Hayes
Trial Court Judge: Judge John W. Rollins
I am unable to join with my colleagues in concluding that the defendant's inculpatory statement must be suppressed. The trial court ruled that the defendant's statement was inadmissible upon grounds that there was no "clear understanding [between the district attorney and defense counsel] about exactly what was going to transpire." The majority opines, on the other hand, that the questions which followed the polygraph examination were "one event and, therefore, part of the polygraph examination itself."

Terry L. Baker v. State of Tennessee
M2002-00400-CCA-R3-PC
Authoring Judge: Judge John Everett Williams
Trial Court Judge: Judge Seth W. Norman
The petitioner sought post-conviction relief because of ineffective assistance of counsel at the resentencing hearing and on appeal. The trial court found that the sentence imposed was pursuant to an agreement. We conclude the record preponderates against such a finding. We further conclude that the record was insufficient to show that the guilty plea was knowingly and voluntarily entered.  The defendant’s twenty-year sentence is vacated, and this cause remanded for resentencing.

Terry L. Baker v. State of Tennessee - Concurring
M2002-00400-CCA-R3-PC
Authoring Judge: Judge David G. Hayes
Trial Court Judge: Judge Seth W. Norman
I join with the majority in concluding that resentencing is necessary for those reasons recited in the opinion. In addition, I find that resentencing is also required for the following reasons. The plea agreement, which is the subject of this appeal, was not negotiated contemporaneously with the petitioner's revocation hearing in January 1997; rather, it was negotiated at the time of his original guilty pleas in May 1995. At that time, he received a ten-year community correction sentence. The 1995 plea agreement provided that should he violate a condition of his ten-year sentence, he would then serve a "minimum of twelve years at thirty-five percent . . . and the State would request at least partial consecutive sentencing." I find this type of sentence is not authorized by our sentencing laws.

State of Tennessee v. Christopher C. Rigsby
E2003-01329-CCA-R3-CD
Authoring Judge: Judge J. Curwood Witt, Jr.
Trial Court Judge: Judge Thomas W. Graham

The defendant, Christopher C. Rigsby, appeals from the Bledsoe County Circuit Court's denial of alternative sentencing following his conviction of aggravated assault. Because the record supports the trial court's ordering the defendant to serve the six-year sentence in the Department of Correction, we affirm.

Sheila Kay Brown Jones v. Lloyd Kirk Jones
W2003-01676-COA-R3-CV
Authoring Judge: Judge W. Frank Crawford
Trial Court Judge: Daniel L. Smith

Mary Lee Alford, et al. v. Earl Ray Lumley, et al.
W2002-03051-COA-R3-CV
Authoring Judge: Judge David R. Farmer
Trial Court Judge: Judge Lee Moore

This lawsuit emanates from a 1989 sale of land, which included a portion of land to which the seller did not have title. Two subsequent assignees of the original buyer filed a cause of action against the seller, seeking rescission or reformation of the 1989 transaction and alternate relief. The trial court awarded plaintiffs’ damages and declined to award equitable relief. We affirm.

John Robert Tory, Jr. v. State of Tennessee
E2003-00019-CCA-R3-PC
Authoring Judge: Judge J. Curwood Witt, Jr.
Trial Court Judge: Judge Richard R. Baumgartner

This opinion adjudicates John Robert Tory, Jr.'s appeal from the Knox County Criminal Court's denial of his 1994 petition for post-conviction relief. He filed the petition to challenge his 1992 jury convictions of first degree murder and especially aggravated robbery. Following a hearing in which counsel argued but no evidence was presented, the post-conviction court rejected the petitioner's claims that his especially aggravated robbery conviction violated double jeopardy principles, that the trial court erred in not instructing the jury as to second degree murder as a lesser included offense of first degree felony murder, and that trial counsel was ineffective in failing to demand an instruction on second degree murder as a lesser included offense. Because the record and the applicable law support the denial of post-conviction relief, we affirm.

Jesse Cleo Minor v. State of Tennessee
M2002-02378-CCA-R3-PC
Authoring Judge: Judge Jerry L. Smith
Trial Court Judge: Judge Cheryl A. Blackburn

The petitioner, Jesse Cleo Minor, entered a best-interest plea to one count of attempted rape of a child. He is currently serving an eight-year sentence. See State v. Jesse Cleo Minor, No. M1998-00424-CCA-R3-CD, 1999 WL 1179143 (Tenn. Crim. App. at Nashville, Dec. 15, 1999). The post-conviction petition at issue herein was filed by the petitioner's daughter Leann Morrison as next friend. The petition alleges that the petitioner is in poor health and suffers from irreversible dementia that seriously affects his cognitive abilities. The petitioner attacks his conviction based upon the following four allegations: (1) he was incompetent and unable to understand the prior proceedings and therefore incapable of entering a voluntary guilty plea; (2) the State failed to disclose material exculpatory evidence; (3) false and/or materially misleading statements were offered to the trial court; and (4) trial counsel was ineffective. We affirm the trial court's dismissal of the post-conviction petition.

State of Tennessee v. Delsie Lucille Sartain
M2002-02617-CCA-R3-CD
Authoring Judge: Judge David G. Hayes
Trial Court Judge: Judge W. Charles Lee

The appellant, Delsie Lucille Sartain, was convicted by a jury for the reckless aggravated assault of a five-month-old baby, which resulted in permanent injuries. Following a sentencing hearing, the trial court imposed a sentence of three years and two months incarceration as a range I standard offender. Sartain appeals the sentencing decision, arguing that the trial court erred by ordering a sentence of total confinement rather than the less restrictive alternative of probation. After review, we find no error and affirm the judgment of the Bedford County Circuit Court.

Four Seasons Heating & Air Conditioning vs. Beers Skanska.
M2002-02783-COA-R3-CV
Authoring Judge: Judge Holly M. Kirby
Trial Court Judge: Carol A. Catalano
This is a breach of contract case. The defendant general contractor was hired to construct a building on a state college campus. The contractor hired the plaintiff subcontractor to perform substantial work on the job. During the course of the project, the subcontractor sought additional labor costs incurred in the project. This issue was not resolved. Later, the subcontractor sought from the contractor the retainage kept by the contractor. When the check was ready, the subcontractor sent its project manager to retrieve it. In order to get the check, the project manager was required by the contractor to sign a document releasing all claims between the contractor and the subcontractor. Later, the subcontractor filed this lawsuit, seeking the additional labor costs. The contractor filed a motion to dismiss, arguing that, by the project manager's signature on the release, the subcontractor waived its claim to the additional labor costs. The subcontractor argued that its project manager did not have the authority to bind the company to the release. After a hearing, the trial court dismissed the subcontractor's complaint. The subcontractor now appeals. We reverse, finding that the evidence was insufficient to establish as a matter of law that the project manager had actual or apparent authority to bind the subcontractor or to establish as a matter of law that the subcontractor ratified the release signed by the project manager.

Elaine H. Deathridge, et ux vs. Richard T. Barksdale
M2003-00032-COA-R3-CV
Authoring Judge: Judge W. Frank Crawford
Trial Court Judge: Marietta M. Shipley
Plaintiffs brought action against driver for damages arising from a rear-end automobile collision. Defendant raised affirmative defense of sudden emergency caused by a "phantom" non-party defendant's placing duct work in the roadway. The jury found that Defendant was not at fault. Plaintiffs appeal. We affirm.