Allen Dale Cutshaw v. State of Tennessee
E2002-00438-CCA-R3-PC
Authoring Judge: Presiding Judge Gary R Wade
Trial Court Judge: Judge James E. Beckner

The petitioner, Allen Dale Cutshaw, appeals the trial court's denial of his petition for post-conviction relief. In this appeal, the petitioner asserts that he was denied the effective assistance of counsel. The judgment of the trial court is affirmed.

State of Tennessee v. Clyde T. Smith
M2002-00553-CCA-R3-CD
Authoring Judge: Judge John Everett Williams
Trial Court Judge: Judge J. Randall Wyatt, Jr.

While serving a sentence in a community corrections program, the defendant was indicted and arrested on two counts of selling and delivering cocaine. His community corrections status was revoked upon proof of the indictment and arrest alone. The defendant claims that proof of an indictment and arrest, standing alone, is insufficient to support a revocation of a community corrections sentence. We agree and reverse the judgment from the trial court.

State of Tennessee v. Victor Eugene Tyson
M1999-00631-CCA-R3-CD
Authoring Judge: Judge Robert W. Wedemeyer
Trial Court Judge: Judge Seth W. Norman

The Davidson County Grand Jury indicted the Defendant for first degree premeditated murder, felony murder, attempted first degree murder and five counts of reckless endangerment. A Davidson County jury found the Defendant guilty of second degree murder, felony murder, attempted first degree murder and five counts of reckless endangerment. After merging the Defendant's convictions for second degree murder and felony murder, the trial court sentenced the Defendant to life imprisonment. The trial court sentenced the Defendant to thirty-five years for the attempted first degree murder conviction to be served consecutively to the life sentence. The trial court merged the five reckless endangerment convictions and sentenced the Defendant to three years to be served concurrently with the other sentences. The Defendant now appeals, arguing the following: (1) that the trial court erred by failing to instruct the jury on all lesser-included offenses; (2) that the trial court erred by denying the Defendant's motion to suppress a photographic lineup; (3) that insufficient evidence was presented at trial to support the Defendant's convictions; (4) that trial counsel was ineffective; and (5) that the trial court improperly assumed that as a matter of law, the sentences in this case must be served consecutively to a prior federal sentence. Concluding that the trial court committed reversible error (the State concedes), by failing to instruct the jury on certain lesser-included offenses of premeditated murder, felony murder and attempted first degree murder, we reverse those three convictions and remand Counts 1, 2, and 3 to the trial court for a new trial. We affirm the conviction for reckless endangerment in Count 4 and the three year sentence imposed in that count. We also remand Count 4 for the trial court to determine whether the sentence imposed in Count 4 should be served concurrently with or consecutively to the Defendant's federal sentence.

Byrd Earthman vs. Becky McRae
W2002-00564-COA-R3-CV
Authoring Judge: Judge Holly M. Kirby
Trial Court Judge: J. Steven Stafford
This is a child support case involving the allocation of private school tuition. In the parties' divorce, the father was granted sole custody of their three minor children. At the time of the divorce, the mother worked part time and, upon agreement of the parties, did not pay child support. The mother began working full time and so began paying child support. The father earns substantially more income than the mother. The father decided to send the parties' oldest child to boarding school. The mother objected to assisting in paying for the child's tuition. The trial court determined that the mother should pay a portion of the tuition in addition to child support. The mother appeals. The mother argues that the trial court erroneously considered her new spouse's income, and erred in requiring her to pay a portion of the tuition in addition to child support. We affirm.

Susan Whitehurst vs. Martin Medical
W2001-03034-COA-R3-CV
Authoring Judge: Judge Holly M. Kirby
Trial Court Judge: William B. Acree
This is a defamation case. The plaintiff is an obstetrician/gynecologist who practices in a largely rural area. The individual defendants are pharmacists who work at Wal-Mart stores in that area. In October 1997, one of the pharmacists received a phone call from her sister, another physician in the area. The sister told the pharmacist that the plaintiff obstetrician/gynecologist had contracted the HIV virus and was sending letters to her patients to inform them of that fact. The pharmacist, a former patient of the plaintiff, repeated the information to her co-workers. Several Wal-Mart employees, including the defendants, repeated the information about the plaintiff to others. The information was false. When the plaintiff learned of the spread of the false rumors, she sued the defendants for defamation. After a lengthy trial, the jury found in favor of the defendants. The plaintiff now appeals, asserting, inter alia, that the trial court erred in admitting evidence that was irrelevant or otherwise improper, and in approving the jury verdict. We affirm, finding that the trial court did not err in the admission of evidence, and that material evidence supports the jury's verdict.

Dale/Mary Bruno vs. Harold/Michelle Rounds
W2002-00130-COA-R3-CV
Authoring Judge: Presiding Judge Alan E. Highers
Trial Court Judge: Dewey C. Whitenton
This appeal arises from a dispute regarding a restrictive covenant in a residential community. The trial court held that the building at issue was not a barn or a storage building and thus was not in violation of the restrictive covenant. The parties raise multiple issues on appeal. For the following reasons, we affirm.

Christopher Powell vs. Patsy Powell
W2002-00421-COA-R3-CV
Authoring Judge: Judge David R. Farmer
Trial Court Judge: George R. Ellis
This case involves the proper valuation and division of marital property, the propriety of the award of sanctions and attorney's and expert witness' fees. We affirm the trial court's valuation and division of the marital property. We reverse the award of fees and the imposition of sanctions as the sanction imposed exceeded the authority of the trial court. We remand the case for further proceedings to include consideration of the imposition of a sanction within the court's authority.

Donald Disher Jr. vs. Karol Disher
W2002-01421-COA-R3-CV
Authoring Judge: Presiding Judge Alan E. Highers
Trial Court Judge: Joe C. Morris
This appeal arises from a divorce proceeding. The chancery court granted the parties a divorce and awarded Wife rehabilitative alimony in the amount of two thousand dollars ($2,000.00) per month for a period of two (2) years followed by three thousand dollars ($3,000.00) per month for a period of six (6) years. The court awarded Wife one hundred percent (100%) of the marital residence and ordered that the marital property be divided sixty/forty (60/40), with Wife receiving sixty percent (60%) and Husband receiving forty percent (40%). In addition, the court awarded Wife $150,000 on her interspousal tort claim. The court also awarded Wife the full amount of her attorney fees and other expenses. The parties raise multiple issues on appeal. For the following reasons, we reverse in part, vacate in part and remand.

Pravin Patel vs. Douglas Bayliff
W2002-00238-COA-R3-CV
Authoring Judge: Judge David R. Farmer
Trial Court Judge: Robert A. Lanier
This is an appeal from a grant of summary judgment. The underlying case concerned the sale of a home to the Appellants that, subsequent to the closing, evidenced termite damage. Appellant buyers claim that the Appellee sellers are responsible for this damage under various theories of recovery, all of which were dismissed by the trial court. Appellants further assert that the Appellee termite company is responsible for the damages because they failed to disclose on the termite inspection report that the home had been repeatedly treated for termites by that same company. We affirm in part, reverse in part, and remand.

Larry Kerr vs. Anderson County
E2002-00020-COA-R3-CV
Authoring Judge: Presiding Judge Herschel P. Franks
Trial Court Judge: James B. Scott, Jr.
The Trial Judge held plaintiff's employment Contract was valid and enforceable. On appeal, we reverse on the grounds the provisions in the Contract are against public policy.

State of Tennessee v. Tammy B. Davenport
E2001-02980-CCA-R3-CD
Authoring Judge: Judge Alan E. Glenn
Trial Court Judge: Judge Leon C. Burns, Jr.

The defendant pled guilty to six counts of forgery over $1000, a Class D felony, and four counts of forgery, a Class E felony, with the sentences to be set by the trial court. At the conclusion of the sentencing hearing, the trial court sentenced the defendant as a Range I, standard offender to the maximum terms of four years for each forgery over $1000 conviction and two years for each forgery conviction, with the sentences to be served concurrently in the Department of Correction. The trial court denied the defendant's request for full probation or split confinement. The defendant appeals, arguing that the trial court erred by failing to place its findings on the record and by denying probation or a sentence of split confinement. Based on our review, we affirm the sentences imposed by the trial court.

State of Tennessee v. Branden Haney and Lawrence Davis
E2002-00559-CCA-R3-CD
Authoring Judge: Judge Norma McGee Ogle
Trial Court Judge: Judge Ben W. Hooper, II

The appellants, Branden Haney and Lawrence Davis, pled guilty in the Cocke County Circuit Court to one count of possession of more than .5 grams of a substance containing cocaine with intent to sell, a Class B felony; one count of possession of more than .5 ounces of marijuana with intent to sell, a Class E felony; and one count of possession of drug paraphernalia, a Class A misdemeanor. The trial court sentenced Haney as a Range I standard offender to an effective sentence of eight years incarceration in the Tennessee Department of Correction, with the sentence to be suspended and served in a community corrections program. The trial court sentenced Davis as a Range I standard offender to an effective sentence of eight years incarceration, with the sentence to be suspended and served in a community corrections program "after [one] year split confinement in [the] Cocke County Jail." Pursuant to their plea agreements, Haney and Davis reserved the right to appeal certified questions of law challenging the trial court's denial of their motions to suppress. Upon review of the record and the parties' briefs, we affirm the judgments of the trial court.

W2002-03027-COA-R7-CV
W2002-03027-COA-R7-CV
Authoring Judge: Judge Holly M. Kirby
Trial Court Judge: Arnold B. Goldin

Debbie G. Scott v. Federal Express Corporation,
E2002-00941-WC-R3-CV
Authoring Judge: John K. Byers, Sr. J.
Trial Court Judge: Howell N. Peoples, 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 filed a petition seeking compensation for an ankle injury which occurred July 16, 1997 and for a back injury which occurred on May 11, 2. The trial judge bifurcated the two claims and heard the back injury case. On April 15, 22 the trial court entered a judgment which dismissed the portion of the complaint seeking compensation for the back injury. The plaintiff says the evidence preponderates against this finding. We affirm the judgment of the trial court. 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 WILLIAM M. BARKER, J. and JOSEPH M. TIPTON, SP. J., joined. Selma Cash Paty, Chattanooga, Tennessee, attorney for the appellant, Debbie G. Scott. Kent E. Krause, Nashville, Tennessee, attorney for the appellees, Federal Express Corporation and Sentry Insurance. MEMORANDUM OPINION At the time of the trial, the plaintiff was forty-nine years of age. She began work for the defendant in 1986. Her duties were as a delivery person. This required her to load a truck with packages to be delivered to customers, to drive the truck to the location of customers, to unload packages at designated places and to pick up packages from customers. In July 1998 the plaintiff had a two-level bone fusion at L4-L5 and L5-S1. The need for the surgery was non-work related. In December of 1998 the plaintiff fell at work and experienced some back pain through January 1999, for which she saw a doctor. In July 1999 the plaintiff twisted her ankle and suffered a severe sprain. She was placed in a fracture boot as a result of this. The plaintiff testified that this caused her back and leg to hurt. The plaintiff conceded, however, she had reported to her doctor that she was having increased lower back pain radiating into her hip and down her leg on April 27, 2. Medical Treatment The pertinent medical evidence was given by Dr. Richard G. Pearce, an orthopedic surgeon, who treated the plaintiff for her previous back injury and also treated her in relation to her limb complaints. Dr. Pearce testified the problem the plaintiff now suffers is as a result of degenerative changes at the L3-4 level which is above the vertebra that were fused in the 1998 surgery. He testified it is not unusual for this to occur above a fusion. Further, he testified the incident of May 11 [12] caused the plaintiff's symptoms from this disc level to get worse. Dr. Pearce's testimony as it relates to whether the plaintiff is entitled to recover is better understood by setting out his testimony verbatim. Q. Would you go back, Doctor, now and compare those complaints with the complaints that she had on April 27th of 2? A. They were similar complaints. Q. Virtually identical; aren't they, sir? A. Well, if you read the dictation, it would be very similar, yes, sir. Q. In fact, she told you on that day that she had some increasing lower back pain with some pain radiating into her hip and down into her right leg; correct? A. That's correct. Q. Doctor, is it _ is it your opinion that the incident that she described to you in January 21 relating to you for the first time an injury that she alleges occurred on May 11, 2, and your opinion that that is the cause of her current problems, is that based on her telling you that there was an increase in her symptoms, in other words, an increase in her pain? A. Yes, sir. Q. Do you have any other source, study, history from her that -2-

Dorothy Krueser v. Barry Smith
M2001-03135-COA-R3-CV
Authoring Judge: Presiding Judge Alan E. Highers
Trial Court Judge: Muriel Robinson
This is a child support case. The trial court increased Mr. Smith's child support from $3,500.00 per month to $10,000.00 per month based on his substantial increase in income. For the following reasons, we modify this decision of the trial court.

Timothy Gaither v. Jessie Bush & Angela White v. Timothy Gaither
M2001-01952-COA-R3-CV
Authoring Judge: Presiding Judge Alan E. Highers
Trial Court Judge: J. B. Cox
This is a case involving the division of wrongful death proceeds between the divorced parents of the deceased. The deceased was eighteen, healthy, and about to enter the military. The plaintiff mother asked for an equal division of the proceeds of a wrongful death settlement entered by the father. Also included in the settlement was the father's action, individually, for his emotional trauma suffered while witnessing his son's death. A jury was asked to divide the settlement proceeds between the parties. The jury found that all of the damages for the pecuniary value of the son's life were attributable to the mother and father, and none were attributable to the son. For the following reasons, we affirm.

Thomas Monroe v. Catherine Robinson
M2001-02218-COA-R3-CV
Authoring Judge: Presiding Judge Alan E. Highers
Trial Court Judge: Muriel Robinson
This appeal arises from the granting of a petition to object to removal of a minor child. The trial court granted the father's petition and prevented the mother from relocating out of state with the minor child, finding that the parties spent substantially equal time with the child and that the move was not in the child's best interest. The parties raise multiple issues on appeal. For the following reasons, we affirm.

Monica Goldberg v. Russell Goldberg
M2001-01442-COA-R3-CV
Authoring Judge: Judge Holly M. Kirby
Trial Court Judge: Russell Heldman
This is a divorce case involving alimony and property division. The parties have five children; the oldest is severely handicapped and the three youngest are minors. The husband is a hospital consultant. The wife works part-time as a nurse and owns a small business. In addition to child support, the trial court ordered the husband to pay substantial alimony in futuro, and assume approximately ninety-eight percent of the marital debt. The husband was also ordered to maintain a considerable amount of life insurance to secure his spousal and child support obligations. On appeal, the husband argues that the award of alimony is excessive, that rehabilitative alimony instead of alimony in futuro should have been awarded, that the trial court improperly divided the marital debt, and that the amount of life insurance required was excessive. We affirm in part and reverse in part. We affirm the trial court's holding with regard to the division of marital debt and the amount of life insurance, and modify the award of alimony, awarding rehabilitative alimony in a reduced amount.

State of Tennessee v. Melvin Waters
M2002-01297-CCA-RM-CD
Authoring Judge: Judge John Everett Williams
Trial Court Judge: Judge Steve R. Dozier

The Supreme Court remanded this case to determine the issue of whether the trial court erred in sentencing the defendant to twelve years for the facilitation of aggravated robbery. The defendant was classified as a Range II offender. Twelve years is outside the range of a Range II offender, Class C felony. We conclude that the sentence is proper in that it does not exceed the range for a Class C felony. Offender classification ranges are non-jurisdictional and may be exceeded. We affirm this sentence.

W2001-01637-COA-R3-CV
W2001-01637-COA-R3-CV
Authoring Judge: Presiding Judge Alan E. Highers
Trial Court Judge: George R. Ellis

State of Tennessee v. Mila Shaw
W2001-02430-CCA-R3-CD
Authoring Judge: Judge John Everett Williams
Trial Court Judge: Judge Chris B. Craft

The defendant was found guilty by a jury of theft of property over ten thousand dollars ($10,000) and sentenced to four years and six months in the county workhouse. She contends the evidence was insufficient to sustain the conviction. We affirm the judgment of the trial court.

E2002-0445-COA-R3-CV
E2002-0445-COA-R3-CV
Trial Court Judge: William H. Inman

State of Tennessee v. Robert James Yoreck, III
M2001-02448-CCA-R3-CD
Authoring Judge: Judge David G. Hayes
Trial Court Judge: Judge John H. Gasaway, III

The Appellant, Robert James Yoreck, III, was indicted by a Montgomery County grand jury for rape, a class B felony. A negotiated plea agreement allowed the Appellant to plead to class C felony aggravated assault. Following a sentencing hearing, the trial court imposed a nine-year sentence. On appeal, Yoreck argues that his sentence was excessive. After review, we find that plain error dictates the conviction be vacated and the case remanded for further proceedings because aggravated assault is not a lesser included offense of rape.

State of Tennessee v. Dennis R. Goltz
M2001-02019-CCA-R3-CD
Authoring Judge: Judge David G. Hayes
Trial Court Judge: Judge Timothy L. Easter

The Appellant, Dennis R. Goltz, was convicted by a Hickman County jury of class E felony theft and sentenced to a term of two years, with sixty days to be served in confinement. On appeal, Goltz raises the following issues: (1) whether the trial court erred by removing a juror during the trial after that juror expressed concern about his ability to be fair and impartial; (2) whether he was denied a fair trial due to prosecutorial misconduct during the State's closing argument; and (3) whether his sentence was excessive based upon the trial court's failure to apply a mitigating factor. After review, we find no error with respect to issues (1) and (3). With regard to issue (2), we find that the prosecutor's closing argument affected the verdict to the prejudice of Goltz. Accordingly, the judgment of the trial court is reversed, and this case is remanded for a new trial.

State of Tennessee v. Kenneth Maurice Vaughn
M2001-03091-CCA-R3-CD
Authoring Judge: Judge Thomas T. Woodall
Trial Court Judge: Judge Steve R. Dozier

Defendant, Kenneth Maurice Vaughn, appeals his convictions in the Davidson County Criminal Court for vandalism and aggravated criminal trespass. At his arraignment, Defendant entered a pro se plea of not guilty. During a hearing on several pretrial motions, at which Defendant proceeded pro se, Defendant signed a written waiver of his right to a trial by jury. After Defendant waived his right to a jury trial, the trial court appointed counsel to represent Defendant and scheduled a bench trial. Following a bench trial, Defendant was convicted as charged, and he received an effective sentence of eleven months and twenty-nine days for each charge, to be served consecutively. In this appeal as of right, Defendant argues that the trial court erred in accepting his jury waiver because he signed the waiver without the assistance of counsel. We conclude that Defendant was not unconstitutionally denied the right to counsel and that he made a valid waiver of his right to a jury trial. We affirm the judgment of the trial court.