State of Tennessee v. Samuel L. Giddens
M2002-00163-CCA-R3-CD
Authoring Judge: Judge David H. Welles
Trial Court Judge: Judge Timothy L. Easter
Following a jury trial, the Defendant, Samuel L. Giddens, was convicted of facilitation of possession of heroin with the intent to sell or deliver and possession of cocaine with the intent to sell or deliver.  In this appeal as of right, the Defendant raises the following four issues: (1) whether the trial court erred by allowing law enforcement officers to testify regarding factual indications that a person possesses drugs with the intent to sell, rather than for personal use; (2) whether the trial court erred by admitting testimony regarding prior drug transactions conducted by the Defendant; (3) whether the evidence is sufficient to sustain his two convictions; and (4) whether he was entitled to a mistrial due to a statement made by the prosecutor during closing argument. We affirm the judgment of the trial court.

Royden Russell vs. Malvin L. Bray, et al.
E2002-02153-COA-R9-CV
Authoring Judge: Judge David Michael Swiney
Trial Court Judge: Chancellor John S. McLellan, III

Royden Russell and Judy Russell ("Plaintiffs") entered into a contract with Malvin L. Bray and Diedre Bray ("Sellers") to purchase a house. The sales contract required Plaintiffs to obtain an inspection by a professional home inspector. Plaintiffs hired Randall L. Douthat and Holly Douthat d/b/a The HomeTeam Inspection Service ("Defendants") to perform the home inspection. Royden Russell signed a form contract ("Contract") presented by Defendants. The Contract contained an exculpatory clause limiting Defendants' liability to the lesser of the cost of repair or the amount of the inspection fee. After moving into the house, Plaintiffs discovered structural problems. Plaintiffs sued Sellers, the realtors involved in the sale of the house, and Defendants. Plaintiffs filed a motion for partial summary judgment concerning the exculpatory clause contained in the Contract. Defendants responded by filing a Renewed Motion for Summary Judgment concerning, in part, the exculpatory clause. The Trial Court held the exculpatory clause was not against public policy and was enforceable. The Trial Court also granted Plaintiffs permission to file an interlocutory appeal. Plaintiffs applied to this Court and were granted an interlocutory appeal on the limited issue of whether the Trial Court erred in holding the exculpatory clause was not against public policy. We reverse.

State of Tennessee v. Robert L. Trocsch
E2002-00359-CCA-R3-CD
Authoring Judge: Judge Norma McGee Ogle
Trial Court Judge: Judge E. Eugene Eblen

The appellant, Robert L. Trocsch, was convicted in the Roane County Criminal Court of one count of burglary and two counts of theft. He received a total effective sentence of eight years incarceration in the Tennessee Department of Correction. On appeal, the appellant contests the sufficiency of the evidence supporting his convictions and alleges that the trial court improperly performed its function as thirteenth juror. Upon review of the record and the parties' briefs, we affirm the judgments of the trial court.

State of Tennessee v. Charles Hinkle
W2002-00453-CCA-R3-CD
Authoring Judge: Judge John Everett Williams
Trial Court Judge: Judge C. Creed Mcginley

The defendant was found guilty by a jury of reckless endangerment with a deadly weapon, vandalism up to five hundred dollars ($500), and public intoxication. The trial court sentenced the defendant as a Range I standard offender to a term of two years for reckless endangerment, eleven months and twenty-nine days for vandalism, and thirty days for public intoxication. These sentences were to run concurrently and were to be served in confinement in the county jail. The trial court rejected alternative sentencing. The defendant contends his sentence is excessive. Because the defendant failed to include the trial transcript, we are unable to conduct an adequate appellate review. Therefore, we presume the trial court correctly sentenced the defendant and affirm the judgments of the trial court.

State of Tennessee v. Carlton Lee McAlister
W2002-00454-CCA-R3-CD
Authoring Judge: Judge John Everett Williams
Trial Court Judge: Judge C. Creed McGinley

The defendant appeals his conviction for DUI - second offense and his sentence of sixty days. The defendant contends the evidence is insufficient to sustain his conviction, more specifically that he was not impaired while driving or on a public road. The defendant also argues that his sentence of sixty days is excessive. We conclude the evidence is sufficient to sustain his conviction. The defendant failed to include the sentencing hearing transcript, thus barring this Court from reviewing his argument concerning sentencing. We affirm the judgment from the trial court as modified.

State of Tennessee v. Myra S. Bikrev
M2001-02513-CCA-R3-CD
Authoring Judge: Judge J. Curwood Witt, Jr.
Trial Court Judge: Judge Donald P. Harris

Myra S. Bikrev appeals from her Williamson County convictions of felony theft of property, coercion of a witness, and aggravated perjury. These convictions were imposed following findings of guilt at a jury trial, and Bikrev is presently serving an effective eight-year sentence involving both jail confinement and probation. She challenges the sufficiency of the evidence as well as the propriety of the sentences she received. Her appellate arguments are not meritorious, and we affirm.

Richard Brown v. State of Tennessee
M2002-01243-CCA-R3-PC
Authoring Judge: Judge John Everett Williams
Trial Court Judge: Judge James E. Walton

The petitioner appeals the denial of post-conviction relief from his first degree murder conviction. He claims he received ineffective assistance of counsel because his trial counsel (1) failed to adequately challenge suppression of the petitioner's confession and (2) failed to have the petitioner testify at trial. We affirm the trial court's denial of post-conviction relief.

State of Tennessee v. Richard DeWayne Jordan
E2001-01947-CCA-R3-CD
Authoring Judge: Judge Jerry L. Smith
Trial Court Judge: Judge Buddy D. Perry

A Rhea County grand jury indicted the defendant on multiple sexual offense charges. At the conclusion of a trial, the defendant was acquitted of numerous offenses but found guilty of two counts of aggravated sexual battery (as lesser included offenses of aggravated rape). For each of these convictions, the trial court sentenced the defendant to twelve years as a standard offender. The court then set these sentences to run concurrently. After unsuccessfully pursuing a new trial motion, the defendant brings this appeal, raising five issues. He avers 1) that the evidence was insufficient to support the verdict; 2) that the prosecutor committed reversible error by soliciting "unrelated crimes" evidence from a State witness; 3) that the prosecution committed reversible error by comments made in its closing argument; 4) that the trial court erred in failing to declare a not guilty verdict as to all counts after the jury indicated that this was its verdict; and 5) that the trial court erred in excessively sentencing the defendant. After reviewing the record and relevant authorities, we find it necessary to remand the defendant's aggravated sexual battery conviction under trial count two for resentencing consistent with this opinion. However, we find that none of the other issues merit reversal and, therefore, affirm the defendant's convictions and his aggravated assault sentence under count four of the indictment.

State of Tennessee v. Richard Albany Goode
E2002-01228-CCA-R3-CD
Authoring Judge: Judge J. Curwood Witt, Jr.
Trial Court Judge: Judge D. Kelly Thomas, Jr.

Richard Albany Goode, convicted upon his guilty plea of statutory rape, appeals from the Blount County Circuit Court's imposition of a two-year incarcerative sentence. He claims he should have received an alternative sentence. Because the appellate record does not contain evidence relied upon by the parties and the court at the sentencing hearing, we hold that the defendant has waived our review of his appellate issue. We therefore affirm the sentence imposed by the trial court.

Chico Lopez Chigano v. State of Tennessee
E2002-00536-CCA-R3-PC
Authoring Judge: Presiding Judge Gary R Wade
Trial Court Judge: Judge Richard R. Baumgartner

The petitioner, Chico Lopez Chigano, appeals the trial court's denial of his petition for postconviction relief. In this appeal, he asserts that he was denied the effective assistance of counsel at trial. The judgment of the trial court is affirmed

State of Tennessee v. Artez L. Moreis
W2002-00474-CCA-R3-CD
Authoring Judge: Judge Joseph M. Tipton
Trial Court Judge: Judge Arthur T. Bennett
The defendant, Artez L. Moreis, appeals as of right his convictions by a Shelby County Criminal Court jury for sale of cocaine, possession of cocaine with intent to sell, and possession of cocaine with intent to deliver, all Class C felonies. The trial court sentenced him as a career offender to three concurrent, fifteen-year sentences to be served in the Department of Correction. He contends that (1) the evidence is insufficient to support his convictions, (2) his three convictions stemming from a single drug transaction violate double jeopardy, (3) his prior felony drug convictions were inadmissible to impeach him, (4) the jury instructions should have included the lesser included offense of facilitation of the sale of cocaine and improperly defined knowingly, and (5) his sentence constitutes cruel and unusual punishment and should be served on community corrections. We reverse the defendant’s convictions because his prior felony drug convictions were inadmissible and remand the case for a new trial.

State of Tennessee v. Artez L. Moreis - Dissenting
W2002-00474-CCA-R3-CD
Authoring Judge: Judge David G. Hayes
Trial Court Judge: Judge Arthur T. Bennett

I respectfully dissent. For those reasons expressed in State v. Vernon Dewayne Waller, No. M2001-02414-CCA-R3-CD (Tenn. Crim. App. at Nashville, Aug. 23, 2002), perm. to appeal granted, (Tenn. 2002), I find no error in the admission of the defendant's prior felony drug convictions for purposes of impeachment.

James R. Blue v. State of Tennessee
M2002-00383-CCA-R3-PC
Authoring Judge: Judge Robert W. Wedemeyer
Trial Court Judge: Judge Seth W. Norman

The Petitioner pled guilty to three Class B felony drug offenses. Pursuant to the plea agreement, the trial court orally sentenced the Petitioner to ten years for each conviction with the sentences to be served concurrently to each other and to a prior four-year sentence, resulting in an effective sentence of ten years. After the sentence was imposed, the Petitioner asked that he be allowed to begin serving his sentence the following day. The trial court granted the Petitioner's request, with the condition that if he did not report as ordered, two of the sentences would run consecutively. The next day, the Petitioner failed to report, and the trial court entered judgments in which two of the Petitioner's sentences were consecutive, resulting in an effective sentence of twenty years. The Petitioner filed a petition for post-conviction relief, contending that his plea was unlawfully induced, that he received ineffective assistance of counsel, and that his sentences were illegal. Following a hearing, the post-conviction court denied relief. The Petitioner now appeals, arguing that the post-conviction court erred by denying his petition for post-conviction relief. Concluding that the trial court violated Tennessee Rule of Criminal Procedure 11 and the Petitioner's due process rights, we reverse the judgment of the post-conviction court.

State of Tennessee v. Tiffany Goodman
M2001-02880-CCA-R3-CD
Authoring Judge: Judge John Everett Williams
Trial Court Judge: Judge J. Curtis Smith

The Defendant was convicted, along with her co-defendant husband, of child abuse and neglect, a Class D felony, and sentenced to four years probation. She appeals, claiming that the evidence was insufficient to support her conviction and that any neglect that did occur was the result of mistakes in parenting skills, such mistake vitiating any knowing abuse. We affirm the judgment of the trial court.

State of Tennessee v. Anthony D. Forster
M2002-00008-CCA-R3-CD
Authoring Judge: Judge John Everett Williams
Trial Court Judge: Judge Seth W. Norman

The defendant, after being allowed to represent himself at the sentencing hearing, proceeds pro se in appealing his especially aggravated robbery conviction and sentence of twenty-two years imprisonment. The defendant argues his right to a speedy trial was violated and argues he was subject to an unreasonable delay in sentencing. The defendant argues the trial court improperly denied the defendant's motion to sever the offenses. The defendant argues the trial judge abused his discretion in failing to recuse himself and contends the trial court erroneously allowed a witness to testify to injuries she sustained as a result of the robbery. The defendant argues the trial court improperly ruled the defendant was not entitled to be present during jury deliberations. The defendant argues the trial court frustrated his right to appeal by relieving his trial counsel prior to sentencing. The defendant argues he is the victim of a malicious prosecution. We conclude the trial court did not err and evidence supports the defendant's conviction of especially aggravated robbery. Therefore, we affirm the judgments of the trial court.

State of Tennessee v. Barbi Michelle Brown
M2002-01497-CCA-R3-CD
Authoring Judge: Judge John Everett Williams
Trial Court Judge: Judge John H. Gasaway, III

The defendant pled guilty to one count of especially aggravated robbery and one count of aggravated burglary. The trial court sentenced the defendant to twenty years incarceration pursuant to a negotiated plea agreement setting the maximum amount of time to be served at twenty years. The defendant contends her sentence is excessive and the trial court misapplied enhancement factors (4), (5), (6), and (10). We agree the trial court misapplied two enhancement factors, but the record supports the imposition of a twenty-year sentence, which is the maximum allowed by her plea agreement and the "presumptive sentence" provided by statute. We affirm the judgments from the trial court.

Teron McKenley v. State of Tennessee
M2002-01892-CCA-R3-PC
Authoring Judge: Judge Joe G. Riley
Trial Court Judge: Judge James K. Clayton, Jr.

The petitioner, Teron McKenley, appeals the denial of his petition for post-conviction relief. He originally pled guilty to especially aggravated robbery, aggravated burglary, and theft over $1,000 and received an effective sentence of fifteen years. He contends the post-conviction court erred in disallowing the introduction of the victim's medical records at his post-conviction hearing and in failing to find that ineffective assistance of counsel led to an involuntary guilty plea. We affirm the judgment of the post-conviction court.

Shawnda James v. State of Tennessee
M2002-00968-CCA-R3-PC
Authoring Judge: Judge Joe G. Riley
Trial Court Judge: Judge Stella L. Hargrove

Petitioner appeals the dismissal of her petition for post-conviction relief by the Giles County Circuit Court. She was originally convicted of premeditated first degree murder and especially aggravated robbery. In this appeal, she contends the post-conviction court erred by finding she received the effective assistance of counsel and argues trial counsel was deficient in not filing a motion to suppress her confession. We affirm the judgment of the post-conviction court.

Whirlpool Corporation v. James Neville
M2002-00187-WC-R3-CV
Authoring Judge: Byers, Sr.J.
Trial Court Judge: Ellen Hobbs Lyle, 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. The plaintiff (employer) appeals the trial court's decision that the disc herniation in the defendant's (employee's) neck, resulting in cervical radiculopathy, was a gradually occurring injury that arose out of and in the course of his employment with the plaintiff. The plaintiff also appeals on the grounds that it contends that proper notice was not given and that the claim should have been barred by the statute of limitations. We affirm the decision of the trial court. Tenn. Code Ann. _ 5-6-225(e) (1999) Appeal as of Right; Judgment of the Chancery Court is Affirmed BYERS, SR.J., in which DROWOTA, J., and LOSER, SP.J., joined. David T. Hooper, of Brentwood, Tennessee, for the Appellant, Whirlpool Corporation. Jerry D. Mayo, of Nashville, Tennessee, for the Appellee, James Neville. MEMORANDUM OPINION Review of the findings of fact made by the trial court is de novo upon the record of the trial court, accompanied by a presumption of the correctness of the finding, unless the preponderance of the evidence is otherwise. Tenn. Code Ann. _ 5-6-225(e)(2). Stone v. City of McMinnville, 896 S.W.2d 548, 55 (Tenn. 1995). The application of this standard requires this Court to weigh in more depth the factual findings and conclusions of the trial courts in workers' compensation cases. See Corcoran v. Foster Auto GMC, Inc., 746 S.W.2d 452, 456 (Tenn. 1988). Facts The defendant (employee) was fifty-three years of age at the time of trial. He did not finish high school, but instead earned his graduate equivalency degree. He has also taken classes in mechanical engineering, electrical engineering , hydraulics, and pneumatics. He served as a policeman in Marinette, Wisconsin, for ten years before coming to Tennessee in 1981. His first job in Tennessee was as a maintenance technician and it was in this position that he came to work for the plaintiff company. The defendant's duties included repair work on a monorail and plumbing maintenance. He testified that most of his duties with the plaintiff company involved plumbing and the use of small tools. The defendant testified that he developed carpal tunnel syndrome out of his work with the plaintiff company and had carpal tunnel release surgery performed by Dr. Vaughan Allen on both hands in 1994. In 1995, he was released with a permanent restriction to avoid continuous flexion and extension of the wrists as well as repetitive work or lifting any objects over thirty-five pounds. He filed a claim for workers' compensation and that claim was settled in 1995 for 27.75 percent permanent disability to both arms and open future medical benefits. The defendant testified that he continued to have hand and arm pain over the following years and was treated for this pain with cortisone shots. The defendant also testified that in the early 199's he had had minor pain in his neck that came and went. He testified that on August 8, 1995, while trying to pull cables on a flat conveyor, he injured his neck but did not report this injury to his supervisor. On March 17, 1999, he reported to Employee Health regarding neck pain and he was treated there with heat on his neck. He testified that on April 24, 1999, while assembling and replacing heavy duty racks, he heard a loud pop and snap in his neck followed by excruciating pain. He testified that the next day his neck hurt very bad. This occurred over a weekend when Employee Health was closed, so he did not report the injury until the following Monday, during which time he continued to work. The defendant testified that he saw Dr. Allen on June 22, 1999, and told him of the neck pain he was having. Dr. Allen performed an MRI (magnetic resonance image) and then recommended surgery to the defendant's neck. Dr. Allen performed surgery on July 15, 1999. The defendant reported that the surgery relieved all his neck and shoulder pain. He returned to work on October 4, 1999, with no restrictions for his neck but still with the prior restrictions for his wrists and hands. After returning to work, he continued to have problems with his arms, wrists, and hands, and these problems got progressively worse. Dr. Allen suggested that the pain was probably caused by tendinitis, but the defendant elected to again have surgery on both wrists and these surgeries were performed in January and February of 2. Medical Evidence The medical evidence for the purposes of the issues raised in this trial was presented by the deposition of Dr. Vaughan Allen. Dr. Allen, a board-certified neurological surgeon, testified that -2-

Larry Benton v. Vanderbilt University
M2002-00085-COA-R3-CV
Authoring Judge: Judge Holly M. Kirby
Trial Court Judge: Carol L. Soloman
This is a case of first impression regarding the enforceability of an arbitration agreement against a third party. The plaintiff was a passenger in an automobile accident and was treated at the defendant hospital. The hospital filed a statutory hospital lien against any proceeds the plaintiff might recover in any lawsuit arising out of the car accident. The plaintiff later successfully sued the tortfeasor for the injuries he sustained in the accident. Thereafter, the hospital sought to recover under its lien for the balance of the plaintiff's medical bills that were not paid to the hospital by the plaintiff's insurance carrier. The plaintiff filed this action against the hospital, claiming that the hospital's practice of balance billing violates the institution agreement between the hospital and the plaintiff's insurance carrier. The hospital filed a motion in the trial court to compel arbitration, pursuant to an arbitration provision contained in the institution agreement. The trial court denied that motion. The hospital now appeals the denial of its motion to compel arbitration. We reverse, concluding that the plaintiff, a third-party beneficiary to the institution agreement seeking to enforce his rights under that agreement, is bound by the arbitration provision contained within that agreement.

Joan Rutledge Mccrone v. Jason Lee Richardson
CH-01-0321-1
Trial Court Judge: Walter L. Evans

McMinn County vs. Ocoee Environmental
E2002-00702-COA-R3-CV
Authoring Judge: Judge Houston M. Goddard
Trial Court Judge: John B. Hagler, Jr.
This appeal questions the validity of a resolution enacted by Appellant McMinn County imposing a surcharge for solid waste disposal at all Class I landfills located in McMinn County. The resolution as initially passed imposed a surcharge of $4.00 per ton of waste, and was subsequently reduced by McMinn County to $2.75 per ton. Appellee Environmental Trust Company ("ETC"), which owns one of the two landfills in the county, refused to pay the surcharge, asserting that it was actually an unlawful tax. McMinn County filed this action to require ETC to pay the surcharge. The Trial Court held that the resolution imposed an unlawful tax, and granted summary judgment in favor of ETC. We affirm the judgment of the Trial Court.

Ann Utter vs. Howell H. Sherrod, Jr.
E2002-00848-COA-R3-CV
Authoring Judge: Judge David Michael Swiney
Trial Court Judge: Kindall T. Lawson
Howell H. Sherrod, Jr. ("Defendant") and Jerry A. Mooneyhan ("Dr. Mooneyhan") were partners. Defendant sued Dr. Mooneyhan regarding one of their partnership projects, Quality Dental Products. Dr. Mooneyhan died during the pendency of that matter. That suit resulted in a jury verdict for Dr. Mooneyhan that was affirmed on appeal. After the Quality Dental Products suit, Defendant withheld Dr. Mooneyhan's portion of the rents from another partnership property, the Bristol building. Ann Utter (formerly Mooneyhan) as Executrix of the Estate of Jerry A. Mooneyhan, deceased ("Plaintiff"), sued Defendant in chancery court seeking partition of the Bristol building and an accounting as to another partnership business, World Tech Fibers. Defendant claimed the chancery court lacked jurisdiction because he previously had filed a claim against the estate in probate court, which, Defendant argued, caused jurisdiction to be vested solely in the probate court. The Trial Court determined it had jurisdiction over the partition action and issues relating only to the Bristol building and World Tech Fibers. The Trial Court ordered and then confirmed partition by sale, awarded Plaintiff a judgment for certain sums related to the Bristol building and World Tech Fibers, and awarded Defendant a winding up fee as the surviving partner. Defendant and Plaintiff each appeal. We affirm in part, reverse in part, and remand.

Carroll Clabo vs. Great American Resorts vs. Jim Falin
E2002-01008-COA-R3-CV
Authoring Judge: Judge David Michael Swiney
Trial Court Judge: Rex Henry Ogle
Carroll Clabo and wife, Blanche Clabo; Dorothy Reed and husband, Earl Reed; Edna Myers and husband, Jerry Myers; and Kate Clabo and husband, Junior Clabo ("Plaintiffs") and Great American Resorts, Inc. ("Defendant") own neighboring properties in Gatlinburg, Tennessee. Defendant developed its property and during construction altered the natural drainage causing rainfall to be diverted onto Plaintiffs' properties. The diverted water caused a landslide that destroyed the access roadway to Plaintiffs' properties and caused damage to Carroll and Blanche Clabo's house. The Trial Court found a permanent nuisance existed and awarded all Plaintiffs damages for diminution in value and $10,000 for the damage to Carroll and Blanche Clabo's house. Defendant appeals claiming the Trial Court erred in finding a permanent nuisance. We affirm.

Willard Malone vs. Judy Malone
E2002-01257-COA-R3-CV
Authoring Judge: Judge Houston M. Goddard
Trial Court Judge: G. Richard Johnson
In this post-divorce case, Willard Eugene Malone (Husband) filed a motion requesting the Trial Court to decrease or discontinue his alimony payments to Judy Mae Bishop Malone (Wife). The sole basis for the motion was Husband's allegation that Wife "is cohabiting with a third person . . .and is no longer in need of the alimony paid by [Husband]." Wife denied that a reduction or elimination of alimony was appropriate, alleging that the person who had lived with her did not provide her financial support or contribution, and that he no longer lived in her trailer at the time of her answer. Wife also alleged that she remained in need of the alimony payments. The Trial Court found no substantial material change in circumstances and ordered Husband to continue paying alimony in the amount of $1000 per month. Husband appeals. We affirm the judgment of the Trial Court.