State of Tennessee v. Abel Caberra Torres
M2001-01412-CCA-R3-CD
Authoring Judge: Presiding Judge Gary R Wade
Trial Court Judge: Judge Charles D. Haston, Sr.

The defendant, Abel Caberra Torres, was convicted of attempted especially aggravated robbery, two counts of attempted second degree murder, aggravated assault, and attempted aggravated assault. The trial court merged the last two offenses into the attempted second degree murder convictions and ordered consecutive sentences of twelve years for each offense, for an effective sentence of thirty-six years. In this appeal of right, the defendant asserts (1) that the evidence was not sufficient; (2) that the trial court erred by failing to suppress his statements to police; (3) that the trial court erred in its instructions to the jury; and (4) that the sentence was excessive. The judgments of conviction are affirmed. Because of the misapplication of enhancement factors, each of the sentences are modified to ten years. The cause is remanded to the trial court for further findings on the consecutive sentencing issue.

Clinton Wayne Lynch v. State of Tennessee
M2002-02801-CCA-R3-PC
Authoring Judge: Judge David H. Welles
Trial Court Judge: Judge Walter C. Kurtz

The petitioner, Clinton Wayne Lynch, appeals from the order of the trial court denying his petition requesting forensic DNA analysis of evidence related to the investigation and prosecution which resulted in the petitioner's conviction for second degree murder entered upon his plea of guilty in 1986. We affirm the judgment of the trial court.

In the Matter of TBS.& AKS.; Dept of Children's Srvc v. Nancy Shortt
M2002-02920-COA-R3-JV
Authoring Judge: Judge William B. Cain
Trial Court Judge: Jimmy White
This case concerns the question of what constitutes reasonable efforts to reunify dependent and neglected children with the birth parents prior to the termination of parental rights. The trial court held that reasonable efforts were made. This Court affirms the termination as to both parents' rights.

Triple Rock v. A.C. Rainey
M2000-01115-COA-R3-CV
Authoring Judge: Judge William B. Cain
Trial Court Judge: Ellen Hobbs Lyle
Triple Rock LLC, d/b/a Commercial Ten, Perry Dale, and Earl H. Young, Jr., sued A.C. Rainey and others for damages allegedly resulting from the Defendants' misappropriation, conversion, or negligent handling of moneys allegedly owed to the limited liability company. The trial court granted partial summary judgment in favor of Defendant, Attorney Mark Moore, on his Motion to Dismiss for failure to state a claim. Then, upon Plaintiffs' Motion for Summary Judgment and the response of the remaining Defendants thereto, the trial court entered summary judgment in favor of the Defendants, A.C. Rainey, Miller Kimbrough, MGK Realty, and Mary Snyder. From these two orders Plaintiffs appeal. We affirm.

State of Tennessee v. Raymond Writer
E2001-01062-CCA-R3-CD
Authoring Judge: Judge Jerry L. Smith
Trial Court Judge: Judge Phyllis H. Miller
A Sullivan County jury convicted the defendant, Raymond Writer, of rape of a child. The trial court accordingly sentenced the defendant to serve twenty-five years for this conviction at 100%, as mandated by statute. The defendant now brings this direct appeal of his conviction, challenging (1) the trial court’s decision to allow the prosecution to impeach defense witness Gwen Bunnell, (2) the trial court’s decision to allow the testimony of two physicians who repeated the victim’s statements identifying the defendant as the perpetrator, (3) the trial court’s decision to allow the prosecution to introduce the rebuttal testimony of Amy Harris, and (4) the cumulative effect of these testimonies as unduly prejudicial. For the following reasons, we find that none of his allegations merit relief.

State of Tennessee v. Raymond Writer - Concurring
E2001-01062-CCA-R3-CD
Authoring Judge: Judge David H. Welles
Trial Court Judge: Judge Phyllis H. Miller
I agree with Judge Smith’s conclusion that the Defendant’s conviction should be affirmed. I write separately only because I disagree with his conclusion that the trial court should not have allowed admission of the victim’s statement to Dr. DeMoss identifying the Defendant. Pursuant to State v. Livingston, 907 SW 2d 392 (Tenn. 1995), and for the same reason Dr. Heise’s testimony was deemed admissible, I believe the trial court properly admitted the statements made by the victim to Dr. DeMoss identifying the Defendant. In all other respects, I fully join in Judge Smith’s opinion.  Because Judge Smith found the trial court’s error to be harmless, I fully concur in the result which he reaches. I am authorized to say that Judge Joe G. Riley joins this concurring opinion.

State of Tennessee v. Robert Lee Fox
E2002-01585-CCA-R3-CD
Authoring Judge: Judge David G. Hayes
Trial Court Judge: Judge Stephen M. Bevil

The Appellant, Robert Lee Fox, appeals the sentencing decision of the Hamilton County Criminal Court. Fox entered a Tennessee Rule of Criminal Procedure 11(e)(1)(B) "open" plea to conspiracy to commit first degree murder and was sentenced to twenty-two years in the Department of Correction. On appeal, Fox argues that the sentence is improper because (1) it is disparate to the sentence received by his co-defendant and (2) four enhancement factors were erroneously applied. After review, we find no error and affirm the decision of the trial court.

State of Tennessee v. Jonathan Dean
W2002-02422-CCA-R3-CD
Authoring Judge: Judge Joe G. Riley
Trial Court Judge: Judge William B. Acree

In a bench trial, the Obion County trial court convicted the defendant, Jonathan Dean, of sexual battery and sentenced him to two years in the Department of Correction. On appeal, the defendant contends (1) the evidence was insufficient to support his conviction, and (2) his sentence is excessive. Upon review of the record and the applicable law, we affirm the judgment of the trial court.

State of Tennessee v. Thomas L. Jackson
W2002-01631-CCA-R3-CD
Authoring Judge: Judge David G. Hayes
Trial Court Judge: Judge Jon Kerry Blackwood

A Lauderdale County Jury convicted the Appellant, Thomas L. Jackson, of possession of contraband in a penal institution, a class C felony. On appeal, Jackson argues that the evidence was insufficient to support his conviction. After review, we conclude that the proof is sufficient to establish that Jackson knowingly possessed the marijuana found in his cell. Accordingly, the judgment of conviction is affirmed.

Joyce M. Lindsey v. State of Tennessee
W2002-01967-CCA-R3-PC
Authoring Judge: Judge Joe G. Riley
Trial Court Judge: Judge J. C. Mclin

The petitioner was originally convicted of second degree murder, aggravated kidnapping, forgery, and theft and received an effective thirty-three-year sentence. In this appeal from the denial of post-conviction relief, the petitioner argues the post-conviction court erred in finding she failed to establish ineffective assistance of counsel. We affirm the judgment of the post-conviction court.

State of Tennessee v. Tracy Larenzo Goodwin, alias Lawanda Carter
E2001-01978-CCA-R3-CD
Authoring Judge: Judge Joseph M. Tipton
Trial Court Judge: Judge Stephen M. Bevil

A Hamilton County Criminal Court jury convicted the defendant, Tracy Larenzo Goodwin, of two counts of reckless aggravated assault, a Class D felony; one count of reckless endangerment, a Class E felony; and one count of criminally negligent homicide, a Class E felony. The trial court sentenced him as a Range III, persistent offender to concurrent sentences of twelve years in the Department of Correction (DOC) for the reckless aggravated assault convictions. For the reckless endangerment and criminally negligent homicide convictions, the defendant received six-year sentences to be served concurrently to each other but consecutively to the reckless aggravated assault sentences for an effective sentence of eighteen years. The defendant appeals, claiming (1) that the evidence is insufficient to support the convictions; (2) that the trial court erred by denying his motion to sever the aggravated assault offenses from the reckless endangerment and criminally negligent homicide offenses; (3) that his convictions for reckless endangerment and criminally negligent homicide violate protections against double jeopardy; and (4) that his sentences are excessive. We affirm the judgments of the trial court.

State of Tennessee v. Walter Clyde Rainey, Jr.
M2001-01870-CCA-R3-CD
Authoring Judge: Judge Norma McGee Ogle
Trial Court Judge: Judge Robert L. Jones

The appellant, Walter Clyde Rainey, Jr., was convicted by a jury in the Wayne County Circuit Court of seven counts of sexual battery by an authority figure and seven counts of statutory rape. The trial court sentenced the appellant to a total effective sentence of four years incarceration in the Tennessee Department of Correction. On appeal, the appellant raises the following issues for our review: (1) whether the evidence was sufficient to sustain his convictions; (2) whether the trial court erred by consolidating the offenses for trial; (3) whether the trial court erred in its ruling regarding the admissibility of the testimony of prosecution witness Tabitha Smith; (4) whether the prosecution's closing argument was improper; and (5) whether the trial court erred in sentencing the appellant. Upon review of the record and the parties' briefs, we affirm the judgments of the trial court.

Thomas & Associates, Inc., v. The Metropolitan Government of Nashville and Davidson County, et al.
M2001-00757-COA-R3-CV
Authoring Judge: Presiding Judge Ben H. Cantrell
Trial Court Judge: Judge Thomas W. Brothers

This appeal involves a dispute between a road contractor and the Tennessee Department of Transportation involving two construction projects in the Nashville area. Following extensive construction delays attributed to the relocation of utilities, the contractor filed claims based on negligence and breach of contract with the Tennessee Division of Claims Administration which were transferred to the Circuit Court for Davidson County. The trial court granted the Department's motion for summary judgment and dismissed all the contractor's claims. We have determined that the trial court correctly dismissed the contractor's negligence claims but that the trial court erred by denying the contractor's breach of contract claims. Accordingly, we vacate the portion of the judgment dismissing the contractor's contract claims and remand the case for further proceedings.

Royal Insurance, v. R & R Drywall and Tennessee Department of Commerce and Insurance
M2002-00791-COA-R3-CV
Authoring Judge: Presiding Judge Ben H. Cantrell
Trial Court Judge: Chancellor Carol L. McCoy

A workers' compensation insurance carrier assessed a retrospective premium increase of over $60,000 against a contractor after auditing the company's books and finding evidence that its subcontractors employed more workers than the contractor had declared. The contractor filed an administrative appeal of the assessment, arguing that the additional workers were not actually employees of its subcontractors, but members of de facto partnerships, and thus not covered under the contractor's policy. The administrative law judge agreed, and found that the contractor was not liable for the additional premium. The Chancery Court of Davidson County reversed the administrative law judge, finding that the insurance company was entitled to the additional premium, because it had borne the risk of liability to those workers for on-the-job injuries. We affirm the Chancery Court.

State of Tennessee v. Randall A. Myers
E2002-02198-CCA-R3-CD
Authoring Judge: Judge David G. Hayes
Trial Court Judge: Judge D. Kelly Thomas, Jr.

The Appellant, Randall A. Myers, appeals the revocation of his community correction sentences by the Blount County Circuit Court. Myers pled guilty to seven counts of deceptive business practices and eight counts of theft, and he received an effective four-year sentence. As a result of these convictions, he was placed on intensive probation but, following violations of his release, he was re-sentenced to community corrections. Myers then proceeded to violate his community corrections agreement, and the trial court ordered him to serve the remainder of his sentences in the Department of Correction. On appeal, Myers asserts that the evidence was insufficient to establish that the violations occurred. After review of the record before us, we find no error. Accordingly, the judgment is affirmed.

State of Tennessee v. Cortland Keshira Cates
E2002-02249-CCA-R3-CD
Authoring Judge: Judge Joe G. Riley
Trial Court Judge: Judge William R. Holt

The defendant, Cortland Keshira Cates, pled guilty to two counts of rape. The trial court sentenced him to eight years' incarceration for each count, to be served concurrently. On appeal, the defendant contends the trial court erred in denying probation. We affirm the judgments of the trial court.

State of Tennessee v. Oscar Reynolds
W2002-01201-CCA-R3-CD
Authoring Judge: Judge John Everett Williams
Trial Court Judge: Judge Joseph B. Dailey

The defendant was found guilty of robbery. His sole issue on appeal is whether the trial court erred in refusing to instruct the jury on the lesser included offense of theft. Theft is a lesser included offense of robbery. However, we conclude the failure to instruct the jury was harmless beyond a reasonable doubt. We affirm the judgment of the trial court.

State of Tennessee v. Brigitte Pauli
M2002-01607-CCA-R3-CD
Authoring Judge: Judge Joe G. Riley
Trial Court Judge: Judge Donald P. Harris

A Williamson County jury convicted the defendant, Brigitte Pauli, of three counts of theft of property over $60,000, one count of theft of property over $1,000, and one count of forgery. The trial court imposed an effective sentence of ten years and ordered the defendant to pay $4,458,203 as restitution. In this appeal, the defendant contends (1) the evidence was insufficient to support her convictions; (2) the trial court erred in prohibiting the defendant from questioning a witness regarding an alleged prior bad act by another witness; (3) the trial court erred in admitting evidence of the values and costs of producing various products; (4) the state made an untimely and improper election of offenses; (5) the trial court erred in allowing the state to present the testimony of a rebuttal witness; (6) the trial court erred in instructing the jury on flight; and (7) the trial court erred in sentencing the defendant. Upon our review, we merge the three counts of theft over $60,000 into one conviction and remand for a redetermination of restitution. Otherwise, we affirm the judgments of the trial court.

State of Tennessee v. Phillip Francis Morales
E2001-01768-CCA-R3-CD
Authoring Judge: Judge Jerry L. Smith
Trial Court Judge: Judge D. Kelly Thomas, Jr.

A Blount County grand jury indicted the defendant on one count of simple possession or casual exchange of Lorazepam, a schedule IV controlled substance, and on one count of possession with intent to sell or deliver an E felony amount of marijuana, a schedule VI controlled substance. After unsuccessfully seeking suppression of the items seized in the search involved in this case, the defendant waived his right to a trial by jury. At the conclusion of a bench trial, the lower court found the defendant guilty as charged. The trial court later sentenced the defendant to concurrent terms of eleven months and twenty-nine days for the simple possession offense and eighteen months for the possession with intent to sell or deliver offense. Though otherwise placed on supervised probation, the trial court ordered the defendant to serve sixteen days of these sentences on eight consecutive weekends. The defendant subsequently filed a new trial motion alleging that the trial court erred in not suppressing the aforementioned evidence and that the proof is insufficient to support the E felony conviction. The trial court denied this motion, and the defendant appeals the denial to this Court raising the same issues. After a review of the record and relevant authorities, we find that the defendant's suppression claim has merit though the sufficiency allegation does not. Because of our finding regarding the suppression matter, we must reverse and remand the defendant's convictions.

State of Tennessee v. Jamie H. Jones
M2002-00055-CCA-R3-CD
Authoring Judge: Judge Norma McGee Ogle
Trial Court Judge: Judge Steve R. Dozier

The appellant, Jamie H. Jones, was convicted by a jury in the Davidson County Criminal Court of five counts of forgery and received a total effective sentence of eight years incarceration in the Tennessee Department of Correction. On appeal, the appellant raises several issues for our review, including the sufficiency of the evidence, the correctness of the trial court's rulings, the propriety of the sentences imposed, and the denial of the appellant's motion for new trial. Upon review of the record and the parties' briefs, we affirm the judgments of the trial court.

Alfred T. Duncan, Rosa L. Duncan, and Jerry Wayne Bell v. Yvonne Elizabeth Qualls, Jerry Barber and wife, Margie Barber, and H. Tom Kittrell, Sr.
M2002-00520-COA-R3-CV
Authoring Judge: Judge Holly Kirby Lillard
Trial Court Judge: Chancellor Russell Heldman

This is a boundary line dispute. The plaintiffs filed suit against the defendants to establish common boundary lines and to recover for timber cut from their land. One of the defendants counterclaimed for damages to his land. The trial court found that the defendants' proposed boundary line was the correct boundary line, but granted the plaintiffs a perpetual easement over the defendants' land. The trial court declined to award the plaintiffs compensation for the cut timber. On appeal, one of the defendants argues that the trial court erred in denying a motion to produce findings of facts, erred in granting a perpetual easement across the defendants' land, and erred in failing to grant the defendants damages. The plaintiffs assert that the trial court erred in failing to award them damages and discretionary costs. We reverse the award of a perpetual easement since the record does not indicate that such relief was sought, and affirm the remainder of the trial court's decision.

Old Republic Surety v. Morris Eshaghpour
M2002-01890-COA-R3-CV
Authoring Judge: Per Curiam
Trial Court Judge: Judge Walter C. Kurtz

A building contractor agreed to make certain repairs to a residence and procured a performance bond as required by the Metro Government. To obtain the bond the contractor was required to execute an indemnity agreement favorably to the bonding company. The homeowner complained of the quality of the contractor's workmanship, and the Codes Department of the Metro. Government determined that certain remedial action should be taken by the contractor in order to achieve compliance with the building code. The contractor declined to do so, insisting that the problems complained of were caused by the homeowner; whereupon, the bonding company engaged another contractor to make the repairs, and filed this action against the initial contractor for indemnification. The Circuit Court ruled in favor of the bonding company. We affirm.

Franklin Iron & Metal Recycling, Inc., v.Worley Enterprises, Inc., et al.
M2002-02361-COA-R3-CV
Authoring Judge: Judge William B. Cain
Trial Court Judge: Chancellor R.E. Lee Davies

Defendants appeal the action of the trial court denying a Tennessee Rule of Civil Procedure 59.04
motion seeking to set aside a previous grant of summary judgment. We have determined that the
trial court did not abuse its discretion in denying the motion and therefore affirm the judgment.

Nora Faye Young v. State of Tennessee
M2002-00804-CCA-R3-PC
Authoring Judge: Judge John Everett Williams
Trial Court Judge: Judge Cheryl A. Blackburn

The petitioner appeals after being denied post-conviction relief. She originally pled guilty to three counts of facilitation of first degree murder and received a forty-five-year sentence. She alleges that her guilty plea was not knowingly, voluntarily, or intelligently entered. She further alleges that her trial counsel knew that her co-defendant made exonerating statements, and she would not have pled guilty if she had known of her co-defendant's exonerating statements. After careful review, we conclude that the evidence does not preponderate against the post-conviction court's findings. We affirm the judgment of the post-conviction court.

State of Tennessee v. Betsy F. Speer
W2001-02212-CCA-R3-CD
Authoring Judge: Judge Norma McGee Ogle
Trial Court Judge: Judge Bernie Weinman

The appellant, Betsy F. Speer, was convicted by a jury in the Shelby County Criminal Court of driving under the influence. The appellant subsequently acknowledged that she was guilty of driving under the influence, second offense. The trial court sentenced the appellant to the mandatory forty-five days in jail, followed by a probationary period of ten months and fourteen days. The trial court also revoked the appellant's driver's license for a period of two years and imposed a seven hundred fifty dollar ($750) fine. On appeal, the appellant contends that the State failed to comply with her Rule 16 motion for discovery. Upon review of the record and the parties' briefs, we affirm the judgment of the trial court.