Lee Roy Gass v. State of Tennessee
E2002-02146-CCA-R3-PC
Authoring Judge: Judge John Everett Williams
Trial Court Judge: Judge James E. Beckner

The petitioner appeals from the post-conviction court's denial of his petition for post-conviction relief. He claims he received ineffective assistance of counsel at trial. After careful review, we affirm the post-conviction court's denial of relief.

Katherine Elaine Sons v. Zurich American Group
2002-02244-WC-R3-CV
Authoring Judge: Loser, Sp. J.
Trial Court Judge: Martha B. Brasfield, 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 employee insists the trial court erred in its application of the successive injury rule and by applying the caps contained in Tenn. Code Ann. _ 5-6-241(a) to the medical impairment resulting only from her most recent injury. The employer's insurer insists the evidence preponderates against the trial court's finding that the employee is permanently disabled to any extent. As discussed below, the panel concludes the successive injury rule is inapplicable and the extent of the employee's permanent disabilitymust be determined in accordance with established rules relating to pre-existing conditions. Tenn. Code Ann. _ 5-6-225(e) (22 Supp.) Appeal as of Right; Judgment of the Chancery Court Vacated; Cause Remanded LOSER, SP. J., in which HOLDER, J., and GOLDIN, SP. J., joined. Joseph H. Crabtree, Jr., Stewart & Wilkinson, Memphis, Tennessee, for the appellant, Katherine Elaine Sons Ronald L. Harper and R. Scott Vincent, Memphis, Tennessee, for the appellee, Zurich American Group MEMORANDUM OPINION The employee or claimant, Ms. Sons, initiated this civil action to recover workers' compensation benefits for a work related back injury. The employer's insurer, Zurich American, denied liability. After a trial on the merits, the trial court awarded the employee, among other things, permanent partial disability benefits based on 1 percent to the body as a whole. The employee has appealed contending the award is inadequate. 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). Extent of vocational disability is a question of fact. Story v. Legion Ins. Co., 3 S.W.3d 45, 456 (Tenn. 1999). 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 is sixty years old and has a tenth grade education. She obtained a GED certificate in about 1973, but has no other formal education. She began working in 1979 at a nuclear power station. Her job was to wash protective clothing. Later in the same year, she began working as a labor foreman in construction work. Her work through 199 consisted of very strenuous, very heavy labor. Her duties included, but were not limited to running conduit and wiring in buildings. She returned to Covington in 199 and tended a bar. In 1994, she was hired by Dyncorp, a general maintenance company which performed general maintenance at the old navy base in Millington. Around June 1, 1998, the maintenance contract was awarded to J. A. Jones Management, at which time the claimant went to work for the employer, J. A. Jones. She worked mostly with electrical lines and performed many of the duties that an electrical worker with Memphis Light, Gas & Water would perform. She would roll and unroll lines, replace poles, replace lights and fixtures inside buildings and install new wiring. She also worked with air conditioners, replacing filters and cleaning ducts. All of the tasks were heavy and strenuous work requiring lifting, bending, twisting, turning, etc. In May 1998, the claimant developed foot problems and underwent a surgical procedure on her feet. After this surgical procedure, she began experiencing back pain. A diagnostic test revealed a ruptured disc. At the time, neither the foot problems nor the back problems were work related. On May 18, 1998, Dr. Dowen E. Snyder performed corrective surgery on her lower back, removing large fragments of disc at two levels. She returned to work in July of the same year. However, she experienced pain both during and after work. On September 15, 1998, the claimant returned to Dr. Snyder with complaints of recurrent pain in her back and left hip and leg. She also described an incident involving a fall from a treadmill, in which she landed on her lower back. The treadmill event caused no additional pain. The doctor prescribed an epidural block, medication, rest and therapy. When the pain didn't wane, Dr. Snyder ordered a second magnetic imaging resonance test. On September 3, 1998, the claimant stepped in a hole at work and suffered immediate and -2-

Dale Supply Company, v. York International Corp, et al.
M2002-01408-COA-R3-CV
Authoring Judge: Judge Russ Heldman
Trial Court Judge: Judge Carol L. Soloman

The sole determinative issue on appeal is whether an agreement which mandates arbitration in the event of claims or disputes "arising out of or relating in any way to the relationship of the parties or this Agreement, or the breach thereof," requires arbitration of tort claims including acts arising after the parties' contractual relationship ended. We hold that arbitration of claims of tortious interference with contracts or business relations is required under the terms of the parties' agreement and reverse the judgment of the trial court.

State of Tennessee v. Travis Bronson a/k/a Terry Crusenberry
E2003-00385-CCA-R3-CD
Authoring Judge: Judge Alan E. Glenn
Trial Court Judge: Judge Phyllis H. Miller

The defendant pled guilty to theft under $500 and was sentenced to eleven months, twenty-nine days in the county jail at zero percent work release eligibility, to be served consecutively to a two-year sentence in a separate case. On appeal, the defendant argues that the trial court erred in denying him probation. Finding no error, we affirm the judgment of the trial court.

State of Tennessee v. Kevin L. Lawrence
W2001-02638-CCA-R3-CD
Authoring Judge: Judge Robert W. Wedemeyer
Trial Court Judge: Judge Chris B. Craft

A Shelby County jury convicted the Defendant of first degree felony murder, and the trial court sentenced the Defendant to imprisonment for life with the possibility of parole. The Defendant now appeals, contending the following: (1) that the trial court erred when it denied his motion to suppress his statement to police; (2) that the trial court erred when it denied his motion for mistrial based upon a witness's non-responsive statement; (3) that the trial court erred in permitting the prosecution to assert matters not in evidence during closing arguments; and (4) that the trial court committed plain error by incorrectly instructing the jury with respect to the culpable mental state of "knowingly." Finding no error, we affirm the judgment of the trial court.

Dedric D. Phillips v. State of Tennessee
W2003-00372-CCA-R3-PC
Authoring Judge: Judge Joe G. Riley
Trial Court Judge: Judge Joseph H. Walker, III

The petitioner, Dedric D. Phillips, appeals the Lauderdale County Circuit Court’s denial of his post-conviction relief petition. The petitioner entered guilty pleas to possession with intent to deliver less than .5 grams of cocaine and simple assault, and the trial court imposed an effective sentence of ten years as a Range III persistent offender. On appeal, the petitioner contends: (1) he received ineffective assistance of counsel; and (2) his guilty pleas were unknowingly and involuntarily entered. Upon review of the record and the applicable law, we affirm the judgment of the post-conviction court.

Glen Bernard Mann v. State of Tennessee
W2002-00260-CCA-R3-PD
Authoring Judge: Judge John Everett Williams
Trial Court Judge: Judge Russell Lee Moore, Jr.

The petitioner, Glen Bernard Mann, appeals the trial court's denial of post-conviction relief. In 1994, the petitioner was sentenced to death by a jury for the premeditated first degree murder of Anne Lou Wilson, a sixty-two-year-old widow. He was also convicted and sentenced to twenty-five years for aggravated rape and six years for aggravated burglary of the same victim. The convictions and sentences were affirmed on direct appeal by both this Court and the Tennessee Supreme Court. The petitioner is seeking post-conviction relief for, inter alia, ineffective assistance of counsel at both the guilt and penalty phase of his trial. The post-conviction court, after a hearing, found the petitioner failed to carry his burden of proving by clear and convincing evidence that his trial counsel was ineffective. After review, we affirm the post-conviction court's denial of post-conviction relief.

State of Tennessee v. Rodney M. Spurgeon
E2002-00931-CCA-R3-CD
Authoring Judge: Judge Jerry L. Smith
Trial Court Judge: Judge Richard R. Vance

On May 3, 2002, a Sevier County jury convicted the defendant, Rodney M. Spurgeon, of arson and the burning of personal property. For these offenses the jury levied fines of $10,000 and $2,500, respectively. After denying the defendant's motion for new trial, the trial court sentenced him to ten years for the arson conviction and four years for setting fire to personal property. These convictions are to run concurrently as a Range II offender. The defendant appeals these convictions. His sole argument on appeal is whether unfair prejudice resulted from the trial court's failure to comply with the strict guidelines of Tennessee Rule of Evidence 404(b). We find no reversible error and therefore affirm the convictions.

State of Tennessee v. Brian Larice Cureton
M2002-00835-CCA-R3-CD
Authoring Judge: Judge Thomas T. Woodall
Trial Court Judge: Judge Cheryl A. Blackburn

Following a jury trial, Defendant, Brian Larice Cureton, was convicted of one count of first degree felony murder and one count of aggravated child abuse. The trial court sentenced Defendant to life imprisonment with the possibility of parole for the felony murder conviction. Following a sentencing hearing, the trial court sentenced Defendant to twenty-five years imprisonment for the aggravated child abuse conviction as a Range I offender and ordered the sentence for aggravated child abuse to run concurrently with Defendant's life sentence. Defendant now appeals his convictions and sentencing alleging (1) that the evidence is insufficient to support Defendant's convictions for first degree felony murder and aggravated child abuse beyond a reasonable doubt; (2) that the trial court erred in not allowing Defendant to cross examine Kinoltra Ewing about her willingness to take a polygraph test; (3) that the trial court erred in not redacting portions of Defendant's statement to the police; (4) that the trial court erred in not instructing the jury on facilitation of aggravated child abuse and felony murder as lesser included offenses; (5) that the trial court erred in permitting the State's expert witness to offer opinions outside her area of expertise; and (6) that Defendant's sentence for aggravated child abuse was excessive. After a thorough review of the record and the arguments and briefs of counsel, we affirm the judgments of the trial court.

State of Tennessee v. Fred Taylor Smith
W2002-02199-CCA-R3-CD
Authoring Judge: Presiding Judge Gary R Wade
Trial Court Judge: Judge Joseph H. Walker, III

The defendant, Fred Taylor Smith, entered pleas of guilt to driving under the influence and driving under the influence per se. See Tenn. Code Ann. § 55-10-401(a)(1)-(2). The trial court merged the two convictions and imposed a sentence of 11 months and 29 days with a requirement of service of 75%. As a part of the plea agreement, the defendant reserved a certified question of law challenging the validity of the investigatory stop. The judgment is affirmed.

State of Tennessee v. Lonnie Walter Hurd
E2002-00832-CCA-R3-CD
Authoring Judge: Judge J. Curwood Witt, Jr.
Trial Court Judge: Judge R. Jerry Beck

The defendant, Lonnie Walter Hurd, appeals from his Sullivan County Criminal Court jury convictions of driving under the influence (DUI) and possession of cocaine. On appeal, he claims that the convicting evidence is insufficient, that certain evidence was improperly admitted, that the testimony of a state's witness violated the witness sequestration rule, and that the trial court erred in permitting a defense witness to be cross-examined about her prior drug convictions. Discerning no reversible error, we affirm the judgments of the trial court.

Bobby J. Laxton v. State of Tennessee
E2002-02281-WC-R3-CV
Authoring Judge: Roger E. Thayer, Special Judge
The Claims Commissioner sustained a motion for summary judgment in favor of the employer and held the action was not timely filed within the one year period of time allowed by the statute of limitations. The employee contends he filed the claim within one year of his becoming aware he was disabled to work. Judgment of the Claims Commission is affirmed.

Bobby J. Laxton v. State of Tennessee
E2002-02281-WC-R3-CV
Authoring Judge: Thayer, Sp. J.
Trial Court Judge: Vance W. Cheek, Jr., Commissioner
The Claims Commissioner sustained a motion for summary judgment in favor of the employer and held the action was not timely filed within the one year period of time allowed by the statute of limitations. The employee contends he filed the claim within one year of his becoming aware he was disabled to work. Judgment of the Claims Commission is affirmed.

Kathy D Avenport v. Wa L-Mart Superc Enter
E2002-02156-WC-R3-CV
Authoring Judge: Howell N. Peoples, Special Judge
Trial Court Judge: G. Richard Johnson, Chancellor
The employer asserts the trial court erred in adopting the medical impairment rating of the evaluating physician rather than the opinion of the treating physician. We affirm.

State of Tennessee v. Brian L. Woods
W2002-01831-CCA-R3-CD
Authoring Judge: Judge David G. Hayes
Trial Court Judge: Judge Lee Moore

The Appellant, Brian L. Woods, was convicted by a Dyer County jury of second degree murder and received a twenty-four-year sentence to be served in the Department of Correction. In this appeal as of right, Woods raises the following issues for our review: (1) whether the trial court erred by permitting a witness to testify in violation of the rule of sequestration; (2) whether the evidence is sufficient to support his conviction; and (3) whether his sentence of twenty-four years is excessive.  After a review of the issues presented, we conclude that Woods’ challenges are without merit. The judgment of conviction and sentence are affirmed.

State of Tennessee v. Martin Todd Felts, Alias Marty Felts
M2002-02659-CCA-R3-CD
Authoring Judge: Judge John Everett Williams
Trial Court Judge: Judge Robert E. Burch

The defendant appeals the revocation of his probation contending that the trial court abused its discretion. We hold that the record contains substantial evidence to support the trial court's conclusion that a violation had occurred, and there was no abuse of discretion. Accordingly, we affirm the judgments.

Jamie Dewayne Reed v. State of Tennessee
E2003-00942-CCA-R3-PC
Authoring Judge: Judge David H. Welles
Trial Court Judge: Judge Rex Henry Ogle

The Defendant, Jamie Dewayne Reed, filed for post-conviction relief. The trial court summarily denied relief on the basis that the petition was time-barred. The Defendant now appeals. We affirm the judgment of the trial court.

State of Tennessee v. Robert Joseph King, Sr.
W2002-01968-CCA-R3-CD
Authoring Judge: Presiding Judge Gary R Wade
Trial Court Judge: Judge Roy B. Morgan, Jr.

Ambrose Associates, v. W. Austin Musselman, Jr.
M2002-02780-COA-R3-CV
Authoring Judge: Presiding Judge Herschel P. Franks
Trial Court Judge: Chancellor Carol L. McCoy

Action to collect rent owed by surety was dismissed by the Trial Court. On appeal, we affirm.

William Jeffrey Tarkington v. Rebecca Juanita Tarkington
M2002-01914-COA-R3-CV
Authoring Judge: Judge William B. Cain
Trial Court Judge: Judge Muriel Robinson

This appeal arises from the Father's post-divorce petition to set child support and to terminate previously ordered alimony in futuro. From an adverse decision of the trial court denying child support and termination of the alimony obligation, Father appeals. We affirm the portions of the trial court's ruling regarding alimony and reverse the award of attorney's fees and denial of support.

State of Tennessee v. James Cravens
M2002-01216-CCA-R3-CD
Authoring Judge: Judge Jerry L. Smith
Trial Court Judge: Judge Lillie Ann Sells

The Putnam County trial court revoked the probation of the defendant, James Cravens, and ordered him to serve his original sentence of eleven months and twenty-nine days in confinement. On appeal, the defendant contends: (1) the evidence was insufficient to support the trial court's probation revocation order; (2) his sentence is excessive; and (3) the trial court erred in placing certain conditions on his bond pending appeal. We affirm the judgment of the trial court.

State of Tennessee v. Rita Cates
W2003-00096-CCA-R3-CD
Authoring Judge: Judge Joe G. Riley
Trial Court Judge: Judge Joseph H. Walker, III
>The defendant pled guilty to attempted second degree murder, especially aggravated burglary, and reckless aggravated assault. Following a sentencing hearing, the trial court imposed an effective sentence of eight years and six months. In this appeal, the defendant argues her sentences are excessive because she should have received alternative sentencing. We affirm the judgments of the trial court, but, due to a clerical error, remand for entry of a corrected judgment.

State of Tennessee v. Anderson Toliver
E2001-00584-SC-R11-CD
Authoring Judge: Chief Justice Frank F. Drowota, III
Trial Court Judge: Judge Stephen M. Bevil

The defendant was convicted of two counts of aggravated child abuse. The trial court imposed a
nine-year sentence for each conviction and ordered concurrent service of these sentences. The
defendant appealed, raising numerous issues, but the Court of Criminal Appeals affirmed the
convictions and sentences. We granted the defendant’s application for permission to appeal and,
after thoroughly reviewing the record, conclude that the trial court abused its discretion in
consolidating the two indictments for trial. Furthermore, we have concluded that the erroneous
consolidation of the indictments, in conjunction with the erroneous admission of evidence of
other crimes, wrongs, or acts, affirmatively appears to have affected the verdict of the jury.
Accordingly, the judgments of the trial court and Court of Criminal Appeals are reversed, and
these cases are remanded for new trials at which evidence of other crimes, wrongs, or acts
committed by the defendant against the victim or others shall not be admitted unless relevant to a
material issue. Tenn. R. App. P. 11; Reversed and Remanded for New Trials
 

State of Tennessee v. Anderson Toliver - Dissenting
E2001-00584-SC-R11-CD
Authoring Judge: Justice E. Riley Anderson
Trial Court Judge: Judge Stephen M. Bevil

The majority has concluded that the trial court committed reversible error by consolidating
the offenses of March 1, 1998 and April 9, 1998, and by admitting evidence of prior abuse
committed by the defendant, Anderson Toliver. In my view, however, the trial court did not abuse
its discretion by consolidating the two offenses and the admission of prior acts of abuse did not affect the jury’s verdict. Accordingly, I dissent and would affirm the judgment of the Court of Criminal Appeals.

State of Tennessee v. Anderson Toliver - Concurring
E2001-00584-SC-R11-CD
Authoring Judge: Justice Adolpho A. Birch, Jr.
Trial Court Judge: Judge Stephen M. Bevil

Although I concur in the analysis and holding of the majority, I write to address an issue of concern: whether in today’s society a parent’s right to corporally chastise a refractory child survives, and, if so, how does one reconcile that right with the child abuse statutes as currently written and interpreted. It is my intention by this concurring opinion to raise the level of discussion and to provide, perhaps, a measure of guidance for the trial court on remand.