K.S.O.H., et al v. J.W.B., Jr. In Re: Adoption of a Male Child
E2001-00055-COA-R3-CV
Authoring Judge: Judge David Michael Swiney
Trial Court Judge: Judge Carey E. Garrett

The mother ("Mother") and stepfather ("Stepfather") of a minor child ("Child") filed a Petition to Terminate the parental rights of the Child's biological father ("Father"). The Petition to Terminate alleged one ground for termination of Father's parental rights, abandonment. After three hearings, the Juvenile Court held that the Petition to Terminate should be dismissed because Mother and Stepfather failed to establish by clear and convincing evidence that Father had abandoned the Child and because termination of Father's parental rights would not be in the Child's best interests. Mother and Stepfather appeal. We affirm.

State of Tennessee v. Joe W. Coonrod
M2000-02224-CCA-R3-CD
Authoring Judge: Judge Joe G. Riley
Trial Court Judge: Judge Lee Russell

A Bedford County jury convicted the defendant of Class D felony theft over $1,000, and the trial court sentenced him to 12 years incarceration as a career offender. In this appeal, the defendant alleges the evidence is insufficient to sustain his conviction. We affirm the judgment of the trial court.

State of Tennessee v. Timothy D. Grove
M2000-02288-CCA-R3-CD
Authoring Judge: Judge Joe G. Riley
Trial Court Judge: Judge Steve R. Dozier

The defendant, Timothy D. Grove, appeals his conviction for aggravated assault and ten-year Range II sentence in the Department of Correction. Specifically, the defendant contends evidence presented against him at trial was insufficient to support his conviction, and his sentence was excessive. After a thorough review of the record, we affirm the judgment of the trial court.

William B. Shearron, et al., v. The Tucker Corporation, et al.
M2000-00624-COA-R3-CV
Authoring Judge: Judge Holly Kirby Lillard
Trial Court Judge: Judge James E. Walton

This is a nuisance case. The plaintiff landowners sued the developer of a subdivision adjacent to their property for digging a drainage ditch that caused frequent flooding. The defendant developer filed counter-claims, including an allegation that the plaintiffs and the previous owners of his property had conspired to breach the agreement to sell the property to the developer. The developer also argued that the city had taken steps to alleviate the flooding. The trial court found that the developer had created a permanent nuisance by changing the natural flow of water across his property, and dismissed the developer's counter-claims. On appeal, we affirm the trial court's finding of a nuisance, but conclude that the circumstances created both a temporary and a permanent nuisance, and remand for recalculation of damages based on this holding.

State of Tennessee v. Eric Jonathan Benefield
E2000-02565-CCA-R3-CD
Authoring Judge: Judge J. Curwood Witt, Jr.
Trial Court Judge: Judge Douglas A. Meyer

Eric Jonathan Benefield appeals the Hamilton County Criminal Court's imposition of consecutive sentencing. In the proceedings below, the trial court incorrectly determined that because the defendant was on probation at the time of his offenses, consecutive sentencing was required by Tennessee Rule of Criminal Procedure 32(c)(3). However, consecutive sentencing was merely permissible, not mandatory. We therefore reverse the trial court's consecutive sentencing determination and remand for further consideration under the applicable law.

State of Tennessee v. Anthony S. Carie
M2000-02942-CCA-R3-CD
Authoring Judge: Judge Joe G. Riley
Trial Court Judge: Judge Timothy L. Easter

The defendant, Anthony S. Carie, appeals his bench trial convictions for burglary of a building other than a habitation and theft over $1,000. This case presents three issues for our determination: (1) whether the evidence was sufficient to support the defendant's convictions; (2) whether the trial court erred in not examining the defendant in open court regarding his right to testify; and (3) whether the defendant received effective assistance of counsel at trial. For the reasons set forth below, we conclude there is no reversible error; therefore, we affirm the judgment of the trial court.

State of Tennessee v. Henry B. Bason
E2000-02276-CCA-R3-CD
Authoring Judge: Judge Joseph M. Tipton
Trial Court Judge: Judge D. Kelly Thomas, Jr.

The defendant, Henry B. Bason, appeals from his conviction for disorderly conduct, contesting the sufficiency of the evidence. We affirm the judgment of conviction.

State of Tennessee v. Ricky D. Gardner
E2000-02481-CCA-R3-CD
Authoring Judge: Presiding Judge Gary R Wade
Trial Court Judge: Judge E. Eugene Eblen

The defendant, Ricky D. Gardner, was convicted of one count of vandalism over $500; one count of vandalism over $1,000; three counts of burglary; one count of burglary of a motor vehicle; three counts of theft over $1,000; two counts of theft under $500; and one count of theft over $500. The trial court imposed an effective six-year sentence to be served in a community corrections program.  Later, the trial court revoked the alternative sentence and ordered the defendant to serve the balance of his sentence in the Department of Correction. In this appeal of right, the defendant argues that the trial court erred by ordering revocation. The judgments are affirmed.

Barry Ralston vs. Gina Henley
M2001-02274-COA-R9-CV
Authoring Judge: Judge William C. Koch, Jr.
Trial Court Judge: Carol L. Soloman
This interlocutory appeal involves a dispute between divorced parents regarding the education of their eight- and ten-year-old daughters. Four years after the Circuit Court for Davidson County awarded the parents joint custody of their children with the mother receiving primary physical custody, the mother unilaterally decided to withdraw the children from public school and to home school them over the father's objection. After the trial court denied his request to enjoin the mother from removing the children from public school, the father perfected this Tenn. R. App. P. 9 appeal seeking review of the trial court's decision that the mother had the sole prerogative to make decisions regarding the children's education. We have determined that an interlocutory appeal will prevent needless, expensive, and protracted litigation. Accordingly, we grant the interlocutory appeal and vacate the trial court's order denying the father's petition to enjoin the mother from removing the parties' children from public school in accordance with Tenn. R. App. P. 10(b).

Jack Jones v. Melvin Johnson
M2002-01286-COA-R3-CV
Authoring Judge: Judge Ben H. Cantrell
Trial Court Judge: Carol L. Soloman
This suit arose from the deliberate destruction of a walnut tree on the plaintiffs' property. The trial court awarded the plaintiffs $5,500 in damages. The defendant argues on appeal that the court used the wrong measure to calculate damages, and that the judgment should not have exceeded $1,000. We affirm the trial court.

State vs. Michael Honeycutt
M1998-00245-SC-R11-CD
Authoring Judge: Justice Adolpho A. Birch, Jr.
Trial Court Judge: Cheryl A. Blackburn
Michael Shane Honeycutt was convicted of aggravated child abuse; the Court of Criminal Appeals affirmed the conviction. Honeycutt contends that he was denied effective assistance of counsel due to trial counsel's failure to employ a theory of defense seeking to establish the child's mother as the perpetrator. We hold that trial counsel's performance was deficient in this regard and that this deficiency prejudiced the outcome of the case. The judgment of the Court of Criminal Appeals is therefore reversed, and this case is remanded to the trial court for a new trial.

State of Tennessee v. Gerald L. Powers
W1999-02348-CCA-R3-DD
Authoring Judge: Judge Robert W. Wedemeyer
Trial Court Judge: Judge Joseph B. Dailey

The Defendant, Gerald L. Powers, was convicted by a jury of first degree felony murder in the perpetration of a robbery and of aggravated robbery. The jury sentenced the Defendant to death for the murder on the basis of three aggravating circumstances: that the Defendant was previously convicted of one or more violent felonies; that the Defendant committed the murder to avoid his arrest and/or prosecution; and that the Defendant committed the murder while committing a kidnapping. The trial court subsequently sentenced the Defendant as a Range III persistent offender to thirty years incarceration for the aggravated robbery, to be served consecutive to the death sentence. In this appeal as of right, the Defendant challenges his convictions, raising the following issues: (1) whether the evidence identifying him as the perpetrator is sufficient; (2) whether a variance between the indictment and the proof at trial is material and prejudicial; (3) whether the trial court had jurisdiction over the crimes; (4) whether the Defendant's wife's testimony should have been suppressed pursuant to the marital communications privilege; (5) whether the trial court erred in refusing to admit evidence in support of a third-party defense; (6) whether the trial court erred in admitting a lay witness's testimony identifying photographs as being of the Defendant; and (7) whether the trial court erred in admitting a deposition taken in Mississippi by a Tennessee notary public. The Defendant challenges the imposition of the death sentence on the following grounds: (1) whether the trial court erred in admitting the facts underlying the Defendant's prior felonies; (2) whether the Defendant's prior felonies were violent within the meaning of the statutory aggravating circumstance; (3) whether the evidence is sufficient to support the jury's finding that the Defendant committed the murder to avoid his arrest and/or prosecution; (4) whether the trial court erred in refusing to admit evidence of the victim's bad character; and (5) whether Tennessee's death penalty scheme is constitutional. Finally, the Defendant contends that the trial court should have sentenced him as a Range II offender for the aggravated robbery. Upon our review of the record and relevant legal authority, we find no reversible error in the Defendant's convictions or in the imposition of the death sentence. We reduce the Defendant's sentence for the aggravated robbery to twenty years. In all other respects, we affirm the judgment of the trial court.

State of Tennessee v. Anthony H. Dean
W2000-01156-CCA-R3-CD
Authoring Judge: Judge Alan E. Glenn
Trial Court Judge: Judge James C. Beasley, Jr.

The defendant was convicted of aggravated rape and sentenced to forty years as a violent offender. He timely appealed, alleging, inter alia, that the trial court erred in not suppressing a confession obtained, following his warrantless arrest, after he had been jailed for five days without a determination of probable cause; in allowing DNA results into evidence; and in permitting a forensic nurse examiner to testify as a keeper of the sexual assault resource center records. Based upon our review, we conclude that testimony regarding the records of the Memphis Sexual Assault Resource Center was properly admitted as business records testimony and that the DNA evidence was properly admitted, as well. We conclude that the defendant's confinement violated his Fourth Amendment rights and that his confession should have been suppressed. However, this error was harmless in light of the other evidence. Accordingly, we affirm the conviction.

State of Tennessee v. Robert L. Easterly
E2000-02625-CCA-R9-CO
Authoring Judge: Judge J. Curwood Witt, Jr.
Trial Court Judge: Judge Mary Beth Leibowitz

In this interlocutory appeal, Robert L. Easterly challenges the Knox County Criminal Court's order denying his motion to dismiss a presentment against him. Easterly claims that the state is barred from prosecuting him for the offense charged in the presentment because (1) the case was not joined with a prior prosecution of him in Sevier County, (2) the criminal conduct charged in the presentment is the same offense for double jeopardy purposes as the case in which he was convicted in Sevier County, and (3) the delay in commencement of the Knox County prosecution violates his speedy trial and due process rights. Because we agree with the defendant that both the mandatory joinder rule and double jeopardy principles bar dual prosecutions, we reverse the trial court's order and dismiss the presentment.

Janice Newman v. Snap-On Incorporated
E2000-02531-WC-R3-CV
Authoring Judge: William H. Inman, Sr. J.
Trial Court Judge: Thomas J. Seeley, Jr, Judge
The plaintiff alleges that she injured her low back during the course of her employment on June 24, 1998 which resulted in a surgical correction followed by permanent impairment. The defendant raised the issue of causation, alleging that the plaintiff's condition was the result of degenerative disc disease, not work-related. The trial court found that the plaintiff suffered a compensable injury as alleged, as a result of which she sustained a 9 percent impairment, entitling her to an award of 22 _ percent. Affirmed

Ida Perry v. Copeland Electric Corporation,
W2000-02022-SC-WCM-CV
Authoring Judge: Joe C. Loser, Jr., Sp. J.
Trial Court Judge: George R. Ellis, Chancellor
In this appeal, the appellant insists (1) the trial court erred in granting the plaintiff's motion to amend her complaint, (2) the trial court erred in finding that the plaintiff sustained an injury arising out of and in the course and scope of her employment, (3) the trial court erred in finding that the plaintiff suffered any permanent partial disability related to any alleged injury and (4) the trial court erred in finding that the claim is not time barred. As discussed below, the panel has concluded the judgment should be affirmed.

Earl Van Winkle, et al vs. City of LaVergne
M2000-01784-COA-R3-CV
Authoring Judge: Judge David R. Farmer
Trial Court Judge: Robert E. Corlew, III
This appeal involves the disputed ownership of water lines. The City of LaVergne appeals the trial court's ruling that the city was the owner of the water lines and responsible for their continued maintenance and repair. LaVergne also appeals the trial court's award of $3037.31 to the Van Winkles. For the reasons set forth below, we affirm the ruling of the trial court.

Eddie Cooley v. Joe May
M2001-01162-COA-R3-CV
Authoring Judge: Judge William C. Koch, Jr.
Trial Court Judge: Buddy D. Perry
This appeal involves a state prisoner's efforts to obtain an accounting for the sentence credits he earned while incarcerated in the Sequatchie County Jail. After the prisoner discovered that the Tennessee Department of Correction had received no information from the Sheriff of Sequatchie County regarding his sentence credits, he filed a petition for writ of mandamus in the Circuit Court for Sequatchie County seeking to compel the sheriff to calculate his sentence credits and forward the information to the Department. The sheriff filed a pro se response asserting that the prisoner forfeited any sentence credits he may have earned by violating his parole. Thereafter, the District Attorney General for the Twelfth Judicial District moved to dismiss the prisoner's petition for lack of subject matter jurisdiction. The trial court granted the motion and dismissed the petition. The prisoner has now appealed. We have determined that the trial court erred by concluding that it lacked subject matter jurisdiction to consider the prisoner's petition. Accordingly, we reverse and remand the case for further proceedings.

Kenneth Hughes, et ux. v. Estate of Elizabeth Haynes
M2002-01896-COA-R3-CV
Authoring Judge: Judge W. Frank Crawford
Trial Court Judge: Floyd Don Davis
This appeal involves a claim filed against an estate for recovery for personal services rendered by claimants, husband and wife, to the decedent. The probate court granted the claim. Estate appeals. We reverse.

State of Tennessee v. Jody Sweat
E2000-02472-CCA-R3-CD
Authoring Judge: Presiding Judge Gary R Wade
Trial Court Judge: Judge Rex Henry Ogle

The defendant, Jody Sweat, indicted for attempted first degree murder and aggravated assault, was convicted of attempted second degree murder and aggravated assault. The trial court imposed concurrent sentences of 11 and four years, respectively. In this appeal of right, the defendant challenges the sufficiency of the evidence for attempted second degree murder; argues that the trial court improperly instructed the jury on attempted second degree murder as a lesser included offense; contends that the state was guilty of prosecutorial misconduct during closing argument; and submits that the jury was allowed to consider exhibits never offered into evidence. The judgments are affirmed.

Johnny Jenkins v. Kemper Insurance Co.
E2001-00154-WC-R3-CV
Authoring Judge: Sr. Judge John K. Byers
Trial Court Judge: James B. Scott, Jr.

State of Tennessee v. Troy Wayne Davis
E2000-03050-CCA-R3-CD
Authoring Judge: Presiding Judge Gary R Wade
Trial Court Judge: Judge Mary Beth Leibowitz

The defendant, Troy Wayne Davis, was convicted of aggravated assault. The trial court imposed a sentence of three years, to be served consecutively to a robbery sentence for which the defendant was on probation at the time of the aggravated assault. The single issue presented for review is whether the evidence is sufficient. The judgment is affirmed.

State of Tennessee v. Grady Paul Gatlin - Concurring and Dissenting
M2000-02356-CCA-R3-CD
Authoring Judge: Judge James Curwood Witt, Jr.

I must respectfully depart from the lead opinion in this case. I cannot conclude that the misdemeanor offense of casually exchanging a controlled substance is a lesser-included offense of felony possession with the intent to sell or deliver. Compare Tenn. Code Ann. § 39-17-417(a)(4) (1997) with Tenn. Code Ann. § 39-17-418(a) (1997).

State of Tennessee v. Grady Paul Gatlin
M2000-02356-CCA-R3-CD
Authoring Judge: Judge David H. Welles
Trial Court Judge: Judge W. Charles Lee

The Defendant, Grady Paul Gatlin, was convicted by a jury of possession with intent to sell a schedule IV controlled substance, possession with intent to sell a schedule II controlled substance, possession of drug paraphernalia, and conspiracy to possess with intent to sell a schedule II
controlled substance. In this appeal as of right, the Defendant argues (1) that the evidence introduced at trial was insufficient to prove that the Defendant intended to sell controlled substances and (2) that it was plain error for the trial court to fail to instruct the jury on the lesser included offense of casual exchange. We reverse the Defendant’s convictions for possession with intent to sell a controlled substance and also his conviction for conspiracy to possess with intent to sell a controlled substance.  The Defendant’s conviction for possession of drug paraphernalia remains unaffected.

State of Tennessee v. Grady Paul Gatlin - Dissenting
M2000-02356-CCA-R3-CD
Authoring Judge: Judge Joe G. Riley
Trial Court Judge: Judge W. Charles Lee

I, like Judge Witt, respectfully disagree with Judge Welles’ conclusion that the trial court committed reversible error by failing to charge “casual exchange” as a lesser-included offense of possession with intent to sell. However, I also respectfully disagree with Judge Witt’s conclusion that the failure to give the casual exchange inference instruction was plain error. I would affirm.