State of Tennessee v. Terry Wayne Luna
M2001-02752-CCA-R3-CD
Authoring Judge: Judge David H. Welles
Trial Court Judge: Judge Charles D. Haston, Sr.

The Defendant, Terry Wayne Luna, was convicted by a jury of aggravated sexual battery. He was sentenced to twenty years in the Department of Correction. In this direct appeal, he argues that the trial court erred in overruling his motion for a mistrial because the Defendant was unduly prejudiced by a non-responsive answer to a question asked by defense counsel on cross-examination. We affirm the judgment of the trial court.

Michael Harrington v. Grant Smith
M2002-00840-COA-R3-CV
Authoring Judge: Judge William B. Cain
Trial Court Judge: Carol L. Mccoy
Defendant appeals a grant of summary judgment against him on a promissory note and an additional judgment against him for breach of contract. We affirm the action of the trial court.

State of Tennessee v. Kevin Martin
M2002-01496-CCA-R3-CD
Authoring Judge: Judge David H. Welles
Trial Court Judge: Judge Donald P. Harris

The Defendant, Kevin Martin, pled guilty to one count of obtaining prescription drugs by fraud, one count of possession of drug paraphernalia, two counts of forgery, one count of telephone harassment, one count of reckless endangerment, and one count of assault. The negotiated plea agreement resulted in an effective sentence of five years and six months. Pursuant to the agreement, service of two of the years was suspended, and the manner of service for the remaining three and one-half years was to be determined by the trial court. Following a sentencing hearing, the trial court ordered the Defendant to serve the sentences totaling three and one-half years in confinement. It is from this order that the Defendant now appeals as of right. We affirm the judgment of the trial court.

State of Tennessee v. Wilmore Hatfield
M2002-00939-CCA-R3-CD
Authoring Judge: Judge David G. Hayes
Trial Court Judge: Judge Eric Shayne Sexton

The Appellant, Wilmore Hatfield, was indicted for attempted first degree murder, aggravated assault, felony possession of a weapon, and driving under the influence (DUI). Following a jury trial, Hatfield was found guilty of felony reckless endangerment, as a lesser-included offense of aggravated assault, and DUI. He was sentenced to concurrent sentences of two years for the felony reckless endangerment conviction and eleven months, twenty-nine days for the DUI conviction. On appeal, Hatfield raises the following issues for our review: (1) whether felony reckless endangerment is a lesser-included offense of aggravated assault as charged in the indictment; (2) whether the trial court's DUI instruction was proper; (3) whether the evidence was sufficient to support the verdicts; and (4) whether his sentences were excessive. We hold that felony reckless endangerment is not a lesser-included offense of aggravated assault committed by intentionally or knowingly causing bodily injury to another by use or display of a deadly weapon. Therefore, the felony reckless endangerment conviction must be reversed and remanded for a new trial on the lesser charge of misdemeanor assault. Regarding Hatfield's DUI conviction, we conclude that the trial court properly charged the jury and the evidence was sufficient to support the verdict. However, we find that the trial court erred by ordering Hatfield to serve his entire eleven-month and twenty-nine-day sentence in the county jail. Accordingly, his DUI conviction is affirmed; however, his sentence is modified to reflect a sentence of eleven months and twenty-nine days, with all time suspended except forty-eight hours to be served in the county jail.

State of Tennessee v. Billy Joe Porterfield
M2002-00405-CCA-R3-CD
Authoring Judge: Judge David G. Hayes
Trial Court Judge: Judge Michael R. Jones

The Appellant, Billy Joe Porterfield, was convicted by a Montgomery County jury of aggravated burglary, especially aggravated kidnaping, especially aggravated robbery, attempted first degree murder, and two counts of aggravated rape, all arising from a single criminal episode. As a result of these convictions, Porterfield received an effective sentence of one-hundred-fifteen years imprisonment. On appeal, Porterfield argues: (1) the evidence is insufficient to support his convictions, and (2) the trial court erred in its application of enhancement factors in determining the appropriate sentences. Finding no merit to these issues, the judgment of the trial court is affirmed.

State of Tennessee v. Renne Efren Arellano
M2002-00380-CCA-R3-CD
Authoring Judge: Judge David G. Hayes
Trial Court Judge: Judge Robert L. Jones

The Appellant, Renne Efren Arellano, was indicted by a Maury County grand jury for one count of aggravated arson, a class A felony, eight counts of attempted first degree murder, class A felonies, and one count of felony possession of a weapon, a class E felony. A negotiated plea agreement allowed the Appellant to plead to one count of arson, eight counts of aggravated assault, and one count of felony possession of a weapon in exchange for an effective twelve-year sentence. The manner of service of the twelve-year sentence was to be determined by the trial court. Following a sentencing hearing, the trial court ordered that the twelve-year sentence be served in the Department of Correction. On appeal, Arellano contends that the trial court erred in not sentencing him to any form of alternative incarceration. However, plain error dictates that the convictions be vacated and the case remanded for further proceedings because aggravated assault is not a lesser included offense of attempted first degree murder.

Thomas Dougherty v. Joyce Parry
M2002-00757-COA-R3-CV
Authoring Judge: Judge Ben H. Cantrell
Trial Court Judge: C. L. Rogers
A divorced father petitioned the court to transfer custody of his two children from his former wife to himself. The trial court dismissed the petition, finding that the father had not met the threshold requirement for change of custody by proving a material change of circumstances. We find that there has been such a change of circumstances, and we remand this case to the trial court with instructions to determine the best interest of the children.

State of Tennessee v. Bobby Earl Ferrell, Jr.
M2002-01295-CCA-R3-CD
Authoring Judge: Judge Joseph M. Tipton
Trial Court Judge: Judge Lee Russell

The defendant, Bobby Earl Ferrell, Jr., appeals as of right the sentences imposed by the Bedford County Circuit Court following the defendant's guilty pleas to aggravated burglary, a Class C felony, and theft of property valued between $1,000 and $10,000, a Class D felony. He contends that the trial court should not have ordered him to serve his effective four-year sentence consecutively to a prior Rutherford County sentence. We affirm the sentences imposed by the trial court.

Smith County v. Dave Enoch
M1999-00063-COA-R3-CV
Authoring Judge: Judge William C. Koch, Jr.
Trial Court Judge: Charles K. Smith
Smith County filed this action to enjoin the maintenance of an automobile junkyard within one thousand (1,000) feet of a county road pursuant to the authority of Private Acts. The defendant admitted his violation of the Private Acts, but pleaded (1) the asserted lack of standing of the County to file the action, and (2) the asserted unconstitutionality of the Acts. The Chancellor sustained both defenses. We reverse.

Paul Rector v. Elizabeth Halliburton
M1999-02802-COA-R3-CV
Authoring Judge: Judge Ben H. Cantrell
Trial Court Judge: Hamilton V. Gayden, Jr.
The residence owned by Mrs. Halliburton had no access owing to highway construction. She acquired a driveway easement from the adjoining landowner, who later sold the property to Mr. Rector. An electric service line extended across the front of Mr. Rector's property which was relocated. Mr. Rector's efforts to purchase the Halliburton property were unavailing, and he began a policy of harassment presumably to acquire the property. He claimed, inter alia, that the easement terminated because it was improperly maintained, and that NES moved the service line without his permission and hence was guilty of trespass. Mrs. Halliburton filed a counterclaim for damages, charging Mr. Rector with trespass and outrageous conduct. Mr. Rector's suit was dismissed, and the counterclaim of Mrs. Halliburton was sustained. The dismissal of Mr. Rector's suit is affirmed; the award of attorney fees to Mrs. Halliburton is reversed; the case is remanded for a determination of the damages sustained by Mrs. Halliburton, including punitive damages.

State of Tennessee v. Daryl Adrian Benjamin Ingram
W2002-00936-CCA-R3-CD
Authoring Judge: Judge Joe G. Riley
Trial Court Judge: Judge Donald H. Allen

The defendant entered "open" guilty pleas to eight counts of aggravated robbery and two counts of attempted aggravated robbery. The trial court imposed an effective forty-year sentence. On appeal, the defendant argues: (1) his sentences are excessive; and (2) the trial court erred in imposing partial consecutive sentencing. We affirm the judgments of the trial court.

State of Tennessee v. Jesse Wayne Baker
W2002-00692-CCA-R3-CD
Authoring Judge: Judge Alan E. Glenn
Trial Court Judge: Judge C. Creed Mcginley

The defendant, Jesse Wayne Baker, pled guilty to introduction of a controlled substance into a penal institution, a Class C felony. The trial court sentenced the defendant to four years to be served consecutively with a previous sentence. On appeal, the defendant argues that his sentence is excessive and the trial court erred in denying alternative sentencing and in imposing consecutive sentencing. Based upon our review, we affirm the judgment of the trial court.

State of Tennessee v. Bradley Ryan Webb
E2002-01375-CCA-R3-CD
Authoring Judge: Judge David G. Hayes
Trial Court Judge: Judge Ben W. Hooper, II

The State appeals the ruling of the Cocke County Circuit Court modifying the sentence of the Appellee, Bradley Ryan Webb, pursuant to Rule 35, Tennessee Rules of Criminal Procedure. Under the terms of a plea agreement, Webb received an effective six-year Department of Correction (DOC) sentence, which stemmed from six theft convictions in Cocke and Jefferson counties. The plea agreement provided that the six-year DOC sentence would be served concurrently with a federal sentence Webb was serving. Following a timely filed Rule 35 motion, the trial court modified Webb's DOC sentences to "time served" and ordered removal of the state detainer warrant lodged against Webb. The trial court found that modification was necessary to effectuate the intent of the plea agreement. The State argues that the trial court's ruling was improper because Webb's sentences were imposed as a result of an "agreed plea," and any post-sentencing developments complained of by Webb were not unforeseen. After review, we conclude that Webb's sentence was improperly modified. Accordingly, the judgment of the trial court is reversed, and this case is remanded for reinstatement of the judgments of conviction as originally entered.

Kenneth Hinton vs. Estate of John Knowles, Jr.
E2002-02493-COA-R3-CV
Authoring Judge: Presiding Judge Herschel P. Franks
Trial Court Judge: W. Frank Brown, III
Estate appealed Trial Court's Judgment that plaintiff was the son of decedent. We affirm.

Stephanie Marie Stephens v. Bekaert Steel Wire
W2002-00341-WC-R3-CV
Authoring Judge: John K. Byers, Sr. 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. The trial court found the plaintiff sustained an 8 percent permanent partial disability to the body as a whole as a result of an industrial injury while employed by the defendant.1 The defendant says the plaintiff cannot recover because the plaintiff had a previous injury which was aggravated by the accident, and further says the award is excessive. The medical evidence, however, shows the plaintiff suffered a new and distinct injury. Furthermore, we do not find the evidence preponderates against the finding of the trial judge regarding the amount of the award. Tenn. Code Ann. _ 5-6-225(e) (1999) Appeal as of Right; Judgment of the Chancery Court Affirmed JOHN K. BYERS, SR. J., in which JANICE M. HOLDER, J. and JOE C. LOSER, SP. J., joined. Paul C. Peel, Memphis, Tennessee, for the appellants, Bekaert Steel Wire Corporation and Liberty Mutual Insurance Company. Jeffrey A. Garrety and Joseph R. Taggart, Jackson, Tennessee, for the appellee, Stephanie Marie Stephens. MEMORANDUM OPINION 1 The trial judge ordered a 6 percent set-off against the award because of payment of long-term disability benefits on an insurance policy paid for by the defendant. There is no appeal on this matter. At the time of trial the plaintiff, the mother of five children, was twenty- nine years of age. She has a high school education and has performed manual labor during most of her adult life. In 1995, the plaintiff received an injury to her back from which she had a 9 percent anatomical impairment and received an award of 19 percent to the body as a whole for the injury. On January 11, 2, the plaintiff fell and injured her back in the course of working for the defendant. The plaintiff testified that as a result of the 2 injury she has constant low back pain which increases with activity, burning pain in her back, and pain and numbness in her legs. She also testified that the injury has affected her ability to carry out her daily activities at home. The plaintiff does several exercises on a daily basis and walks as recommended by her doctor. The work that the plaintiff did for the defendant required lifting, standing and twisting. The plaintiff testified that she is no longer able to do this because of her injury. Medical Evidence Dr. Stephen M. Waggoner, an orthopedic surgeon, saw the plaintiff on February 24, 2, on referral from Dr. Riley Jones, who had been seeing the plaintiff since her 2 injury. Dr. Waggoner found the plaintiff had a pre-existing spondylolisthesis at the L5-S1 level which had been aggravated by the work injury. After a period of treatment, Dr. Waggoner did surgery on the plaintiff and placed a "cage" in the area of the injury to immobilize the vertebra. He testified the need for surgery was caused by the fall of 2. He testified that the fall of 2 caused new symptoms which led him to do surgery on the plaintiff's back. He testified the surgery produced new anatomical changes on the plaintiff's back. Dr. Waggoner testified the plaintiff now has limitations on a permanent basis that she did not have before the injury of January 2. He further testified the plaintiff now had permanent restrictions which she did not have prior to the injury of January 2. Dr. Waggoner placed limitations on lifting and prohibited repetitive bending or stooping. He found the plaintiff suffered a 13 percent anatomical impairment as a result of the January 2 injury. Dr. Joseph C. Boals, III, an orthopedic surgeon, saw the plaintiff in April 21, for the purpose of evaluation. Dr. Boals, for the most part, confirmed Dr. Waggoner's findings as to causation and effect. He was of the opinion that the plaintiff suffered a 23 percent impairment to the body as a whole. Dr. Boals was also of the opinion that the injury of January 2 was a new injury and that the plaintiff suffered new pain and new disablement from the injury. Brenda Dailey, a vocational rehabilitation expert, testified that she examined the medical evidence concerning the plaintiff's injury, her physical imitations, her education, etc., and concluded the plaintiff could perform between 1 and 12 percent of the jobs available in the country. -2-

Cathy Anderton v. Gerald Anderton
M1998-00950-COA-R3-CV
Authoring Judge: Judge William C. Koch, Jr.
Trial Court Judge: Don R. Ash
Rutherford County -The trial court awarded rehabilitative alimony to wife who, in her complaint, did not seek alimony but who testified at discovery that she was indigent and needed financial assistance. Husband argues that absent a pleaded request for alimony, the trial court was powerless to award it. The trial court disagreed. We affirm. Husband's petition alleging that wife was in criminal contempt for failing to allow visitation with the child of the parties was dismissed, and husband appeals. An acquittal of criminal contempt cannot be appealed.

Ronnie Lee Houck v. State of Tennessee
E2002-00642-CCA-R3-PC
Authoring Judge: Judge J. Curwood Witt, Jr.
Trial Court Judge: Judge Richard R. Baumgartner

The Knox County Criminal Court denied petitioner Ronnie Lee Houck post-conviction relief following an evidentiary hearing. The petitioner challenged his 2000 conviction of aggravated sexual battery on the grounds that his guilty plea to that offense was unknowing and involuntary and the product of ineffective assistance of counsel. From the denial of post-conviction relief, the petitioner appeals. We find no error and affirm the lower court's judgment.

Henry Watson vs. L.B. Ball
E2002-00072-COA-R3-CV
Authoring Judge: Judge David Michael Swiney
Trial Court Judge: Jerri S. Bryant
A Chancery Court judgment was entered in 1980, providing Henry Watson and Evelyne Watson ("the Watsons") an easement across land currently owned by L.B. Ball and Wilma Rose Ball ("the Balls"). The judgment held the Watsons had acquired an easement "for the purpose of providing ingress and egress for farm equipment only and for no other purpose." The Watsons did not use the easement or take any steps to prepare it for use for nearly twenty years. In 1999, the Watsons began construction of a road within the easement. Joe Browder and Gail Browder ("the Browders"), owners of adjoining property, placed a gate across the easement. The Watsons sued for injunctive relief. Trial was held and an order was entered on May 14, 2001, holding, inter alia, the easement had not been abandoned and that the Balls were not entitled to damages for destruction of trees within the easement. In response to the Balls' motion for additional findings of fact, an order was entered on November 13, 2001, that provided a definition of "farm equipment." The Balls appeal. We affirm.

Ronnie Lee Houck v. State of Tennessee
E2002-00642-CCA-R3-PC
Authoring Judge: Judge J. Curwood Witt, Jr.
Trial Court Judge: Judge Richard R. Baumgartner

The Knox County Criminal Court denied petitioner Ronnie Lee Houck post-conviction relief following an evidentiary hearing. The petitioner challenged his 2000 conviction of aggravated sexual battery on the grounds that his guilty plea to that offense was unknowing and involuntary and the product of ineffective assistance of counsel. From the denial of post-conviction relief, the petitioner appeals. We find no error and affirm the lower court's judgment.

State of Tennessee v. Dollie R. Lucas
M2001-02684-CCA-R3-CD
Authoring Judge: Judge John Everett Williams
Trial Court Judge: Judge Don R. Ash

The defendant contends the trial court erred in denying her judicial diversion and full probation following her guilty plea for identity theft, a Class D felony. The trial court sentenced her to two years in split confinement, with ninety days to be served in weekend confinement, and the balance served on probation. The trial court ordered the defendant to pay one thousand dollars ($1000) in restitution. Because the trial court failed to place its findings on the record, we remand for a new sentencing hearing.

State of Tennessee v. Stacy R. Dowell
E2002-01918-CCA-R3-CD
Authoring Judge: Judge Joseph M. Tipton
Trial Court Judge: Judge Lynn W. Brown

The defendant, Stacy R. Dowell, appeals as of right his conviction, following a bench trial before the Johnson County Criminal Court, for driving while his blood alcohol concentration was .10 or greater, a Class A misdemeanor. The trial court sentenced the defendant to eleven months, twenty-nine days with forty-eight hours to be served in the county jail and the remainder on probation. The defendant challenges the sufficiency of the evidence relative to his blood alcohol concentration. We affirm the trial court's judgment.

State of Tennessee v. Stacy R. Dowell
E2002-01918-CCA-R3-CD
Authoring Judge: Judge Joseph M. Tipton
Trial Court Judge: Judge Lynn W. Brown

The defendant, Stacy R. Dowell, appeals as of right his conviction, following a bench trial before the Johnson County Criminal Court, for driving while his blood alcohol concentration was .10 or greater, a Class A misdemeanor. The trial court sentenced the defendant to eleven months, twenty-nine days with forty-eight hours to be served in the county jail and the remainder on probation. The defendant challenges the sufficiency of the evidence relative to his blood alcohol concentration. We affirm the trial court's judgment.

Edward Dean Mullins v. State of Tennessee
E2002-00730-CCA-R3-PC
Authoring Judge: Presiding Judge Gary R Wade
Trial Court Judge: Judge James E. Beckner

The petitioner, Edward Dean Mullins, appeals the trial court's denial of post-conviction relief. The issues presented for review are (1) whether the petitioner was denied the effective assistance of counsel; (2) whether the petitioner's guiltypleas were knowingly and voluntarily entered; (3) whether the trial court erred by denying the petitioner's claim of prosecutorial misconduct; (4) whether the trial court erred by denying the petitioner's motion for severance; and (5) whether the trial court erred by ruling that the indictment need not include the applicable aggravating circumstances. The judgment is affirmed.

Edward Dean Mullins v. State of Tennessee
E2002-00730-CCA-R3-PC
Authoring Judge: Presiding Judge Gary R Wade
Trial Court Judge: Judge James E. Beckner

The petitioner, Edward Dean Mullins, appeals the trial court's denial of post-conviction relief. The issues presented for review are (1) whether the petitioner was denied the effective assistance of counsel; (2) whether the petitioner's guilty pleas were knowingly and voluntarily entered; (3) whether the trial court erred by denying the petitioner's claim of prosecutorial misconduct; (4) whether the trial court erred by denying the petitioner's motion for severance; and (5) whether the trial court erred by ruling that the indictment need not include the applicable aggravating circumstances. The judgment is affirmed.

State of Tennessee v. Dena Paulette Rackliff
M2001-02953-CCA-R3-CD
Authoring Judge: Judge David H. Welles
Trial Court Judge: Judge Michael R. Jones

The Defendant, Dena Paulette Rackliff, was found guilty by a jury of falsely accusing her ex-husband of sexually abusing their seven-year-old daughter, which constitutes a class E felony. The trial court sentenced the Defendant as a Range I offender to eighteen months in the Robertson County jail. The trial court further ordered that after the Defendant served ten days in jail, her sentence would be probated for six years. The Defendant presents three issues in this appeal as of right: (1) whether the evidence is sufficient to support the conviction for falsely reporting child sexual abuse; (2) whether the trial court erred in instructing the jury on the conduct that constitutes the crime of falsely reporting child sexual abuse; and (3) whether the sentence imposed by the trial court is excessive. We affirm the judgment of the trial court.