State vs. Nicholas Williams
M1999-00780-CCA-R3-CD
Authoring Judge: Judge Robert W. Wedemeyer
Trial Court Judge: Jim T. Hamilton
In 1998, the Giles County Grand Jury indicted the Defendant for one count of statutory rape and ten counts of sexual battery. In 1999, a Giles County jury tried the Defendant and found him guilty of one count of statutory rape and five counts of sexual battery. Following a hearing, the trial court sentenced the Defendant to two years incarceration for each conviction and ordered that five of the six sentences be served consecutively, resulting in an effective sentence of ten years. The Defendant now appeals as of right, arguing (1) that the evidence presented at trial was insufficient to support his convictions for sexual battery; (2) that the trial court erred by consolidating all counts for trial; and (3) that he was improperly sentenced. We conclude that the evidence is insufficient as to one count of sexual battery and thus reverse one of the Defendant's convictions for sexual battery. In addition, we conclude that the trial court erred by consolidating all counts for trial, but conclude that this error was harmless. Finally, following our reversal of the sexual battery conviction in case 8652, count one, with a two-year sentence, and a de novo review of the remaining sentences imposed by the trial court, we conclude that an effective sentence of eight years in the Tennessee Department of Corrections is appropriate.

State vs. John Charles Johnson
M2000-00529-CCA-R3-CD
Authoring Judge: Judge Thomas T. Woodall
Trial Court Judge: J. Randall Wyatt, Jr.
Defendant John Charles Johnson was convicted by a Davidson County jury of second degree murder, facilitation of aggravated kidnapping, and especially aggravated robbery. The trial court sentenced Defendant to twenty-five years for second degree murder, five years for facilitation of aggravated kidnapping, and twenty years for especially aggravated robbery. The trial court further ordered that Defendant's sentences for second degree murder and facilitation of aggravated kidnapping be served consecutive to each other and concurrent with Defendant's sentence for especially aggravated robbery, resulting in an effective sentence of thirty years. Defendant raises the following issues in this appeal: (1) whether the evidence was sufficient to support his three convictions; (2) whether the trial court erred in not granting Defendant's motion for judgment of acquittal on the ground that the testimony of a co-defendant was uncorroborated; (3) whether the trial court erred in not allowing Defendant to play a tape containing exculpatory statements; (4) whether the trial court erred by failing to charge the lesser-included offenses of voluntary manslaughter and facilitation to commit voluntary manslaughter; and (5) whether the length of the sentences imposed by the trial court were proper. Following a review of the record, we affirm the judgment of the trial court concerning Defendant's convictions and the lengths of Defendant's sentences. We reverse the trial court's order of consecutive sentencing and remand for a new hearing solely on the issue of concurrent or consecutive sentencing.

State vs. Amelia Kay Stem
M2000-00600-CCA-R3-CD
Authoring Judge: Judge Norma McGee Ogle
Trial Court Judge: Stella L. Hargrove
The appellant, Amelia Kay Stem, entered a plea of nolo contendere in the Lawrence County Circuit Court to one count of second degree murder. The trial court sentenced the appellant to twenty-five years incarceration in the Tennessee Department of Correction. The appellant raises the following issue(s) for our review: whether the trial court erred in sentencing the appellant by incorrectly applying enhancement factors, by failing to apply mitigating factors, and by neglecting to make specific findings of fact on the record. Upon review of the record and the parties' briefs, we affirm the judgment of the trial court.

State vs. Gregory Lynn Redden
M2000-00761-CCA-R3-CD
Authoring Judge: Judge Norma McGee Ogle
Trial Court Judge: Donald P. Harris
The appellant, Gregory Lynn Redden, pled guilty in the Williamson County Circuit Court to one count of burglary, a class D felony. The trial court sentenced the appellant as a Range III persistent offender to eleven years incarceration in the Tennessee Department of Correction. The trial court further ordered the appellant to serve this sentence consecutively to the appellant's unserved sentences imposed in Greene County, Missouri, in the United States District Court in the Northern District of Ohio, and in Robertson County, Tennessee. The appellant raises the following issue for our review: whether the trial court erred in ordering the appellant to serve his sentence in this case consecutively to his other sentences. Upon review of the record and the parties' briefs, we affirm the judgment of the trial court.

Joseph Whitwell vs. State
M1999-02493-CCA-R3-PC
Authoring Judge: Judge Thomas T. Woodall
Trial Court Judge: Cheryl A. Blackburn
Petitioner, Joseph Whitwell, filed a Petition for Post-Conviction Relief in the Davidson County Criminal Court, which the post-conviction court subsequently denied. Petitioner challenges the denial of his petition, raising the following issue: whether the trial court erred in dismissing his Petition for Post-Conviction Relief, based upon a ruling that Petitioner's allegations of ineffective assistance of counsel were without merit. After a thorough review of the record, we find that the Petitioner did not receive the ineffective assistance of counsel. We therefore affirm the trial court's denial of the Petitioner's Petition for Post-Conviction Relief.

State vs. Charles Swaffer
M2000-00058-CCA-R3-CD
Authoring Judge: Judge Thomas T. Woodall
Trial Court Judge: J. O. Bond
Defendant Charles E. Swaffer was convicted by a Macon County jury of one count of Class C theft of property over $10,000 and one count of Class D vandalism over $1,000. The trial court subsequently imposed concurrent sentences of five years and three years, with Defendant to serve one year of incarceration followed by supervised probation. Defendant challenges his convictions, raising the following issues: (1) whether the trial court erred when it failed to grant a motion for a mistrial; (2) whether the evidence was sufficient to support his convictions; and (3) whether the trial court erred in applying improper enhancing factors and rejecting his mitigating factors. The judgment of the trial court is affirmed.

State of Tennessee v. Toscar C. Carpenter, Sr.
M2000-00990-CCA-R3-CD
Authoring Judge: Judge Norma McGee Ogle
Trial Court Judge: Donald P. Harris

State vs. Richard M. Far, Jr.
M1999-01998-CCA-R3-CD
Authoring Judge: Judge Thomas T. Woodall
Trial Court Judge: James K. Clayton, Jr.
Defendant, Richard M. Far, Jr., was convicted by a Rutherford County jury of Class D forgery of a document valued at more than $1,000. Subsequently, the trial court sentenced Defendant as a Range III persistent offender to ten (10) years to be served consecutively to Defendant's sentence in an arson case (F-45893). Defendant raises two issues on appeal: 1) whether the trial court erred in excluding Defendant from his trial and sentencing hearing and 2) whether the trial court properly considered the sentencing guidelines in sentencing Defendant. After a review of the record, we reverse the judgment of the trial court and remand this matter for a new trial.

Peltz vs. Peltz
M1999-02299-COA-R3-CV
Authoring Judge: Judge Ben H. Cantrell
Trial Court Judge: Russell Heldman
The issue on appeal is whether a notary was negligent when she attached her certificate to a forged signature on a deed. The Chancery Court of Williamson County held that she was not. We affirm.

State vs. Robert Mallard
M2000-00351-CCA-R3-CD
Authoring Judge: Judge Thomas T. Woodall
Trial Court Judge: J. Steve Daniel
In a two count indictment, Defendant was charged in Rutherford County Circuit Court with attempting to tamper with or fabricate evidence, and with resisting arrest. Following a jury trial, he was convicted of both offenses. In this appeal, the Defendant argues that the trial court erred by denying his motion to suppress evidence and he further asserts that the evidence is insufficient to sustain the conviction for attempting to tamper with or fabricate evidence. After a review of the record and the applicable law, we affirm the judgments of the trial court.

State vs. Ernest E. Pride
M2000-00319-CCA-R3-CD
Authoring Judge: Judge Norma McGee Ogle
Trial Court Judge: Seth W. Norman
The appellant, Ernest E. Pride, was convicted by a jury in the Davidson County Criminal Court of one count of tampering with evidence, a class C felony; one count of possession of less than .5 grams of cocaine with the intent to sell, a class C felony; one count of simple possession of marijuana, a class A misdemeanor; one count of criminal trespass, a class C misdemeanor; one count of resisting arrest, a class B misdemeanor; and one count of unlawful possession of drug paraphernalia, a class A misdemeanor. The trial court sentenced the appellant, as a Range II offender, to the following terms of incarceration in the Tennessee Department of Correction: eight years for the tampering with evidence conviction, eight years for the possession of cocaine with intent to sell conviction, eleven months and twenty-nine days for the possession of marijuana conviction, thirty days for the criminal trespass conviction, and six months for the resisting arrest conviction. Additionally, the trial court ordered the appellant to serve all of the sentences concurrently. The trial court entered a verdict of not guilty for the possession of drug paraphernalia. The appellant raises the following issues for our review: (1) whether the evidence contained in the record is sufficient to support a finding by a rational trier of fact that the appellant is guilty beyond a reasonable doubt of possession of less than .5 grams of cocaine with intent to sell and tampering with the evidence as charged in the indictment; and (2) whether the trial court imposed excessive sentences for the convictions of tampering with evidence and possession of less than .5 grams of cocaine with intent to sell. Based upon our review of the record and the parties' briefs, we affirm the judgment of the trial court.

State vs. Andre L. Mayfield
M1999-02415-CCA-R3-CD
Authoring Judge: Judge Robert W. Wedemeyer
Trial Court Judge: Seth W. Norman
In 1999, the Defendant was tried by a Davidson County jury and found guilty of aggravated robbery, aggravated rape, rape, and two counts of aggravated kidnapping for crimes perpetrated on two victims. Following a sentencing hearing, the trial court sentenced the Defendant to an effective sentence of fifty years. In this appeal as of right, the Defendant argues that (1) the trial court erred by failing to sever the offenses against one victim from those against the second victim; (2) the trial court erred by failing to admonish the jury not to view, listen to, or read any news coverage of the case during trial; (3) the trial court erred by failing to grant his two motions for a mistrial; (4) the evidence presented at trial was insufficient to support his convictions; (5) the trial court erred by allowing the State to introduce evidence of the age of one victim; (6) the trial court erred by allowing into evidence altered documents and by instructing the jury that the documents were altered to remove inadmissible evidence; (7) the trial court erred by allowing into evidence inadmissible hearsay statements; (8) the trial court erred by refusing to instruct the jury on lesser-included offenses requested by the defense; and (9) the trial court sentenced him improperly. Having thoroughly reviewed the record in this case, we affirm the judgment of the trial court, as modified to indicate that the Defendant was sentenced as a Range II Multiple Rapist for the rape conviction.

James Dubose vs. State
M2000-00478-CCA-R3-CD
Authoring Judge: Judge Norma McGee Ogle
Trial Court Judge: Donald P. Harris
The petitioner, James DuBose, was convicted by a jury in the Williamson County Circuit Court of one count of first degree felony murder with the underlying felony being aggravated child abuse. The trial court sentenced the petitioner to life imprisonment in the Tennessee Department of Correction. This court and the Tennessee Supreme Court affirmed the petitioner's conviction. The petitioner subsequently filed a petition for post-conviction relief. After a hearing, the post-conviction court denied the petitioner's request for relief. On appeal, the petitioner raises the following issues for our review: (1) whether the State engaged in prosecutorial misconduct during the course of the petitioner's trial; (2) whether petitioner's trial counsel provided ineffective assistance of counsel; (3) whether the trial court erred in failing to give curative jury instructions; and (4) whether the petitioner was charged pursuant to a faulty indictment. Upon review of the record and the parties' briefs, we affirm the judgment of the post-conviction court.

Oliver Valentine
W1999-01293-COA-R3-CV
Authoring Judge: Judge Holly M. Kirby
Trial Court Judge: George E. Blancett
This is a termination of parental rights case. A twenty-one month old boy was removed from his parents' home after the mother beat him with a belt, leaving bruises on his back, chest, head, and face. Three and a half years later, after the parents had failed to satisfy the conditions in the son's plan of care, the Department of Children's Services filed a petition to terminate their parental rights. The Juvenile Court for Shelby County terminated the mother's and father's parental rights. The mother and father appeal, arguing that the Tennessee Constitution prohibits a non-attorney, elected juvenile court judge from appointing a special judge, who is an attorney but not elected, to hear a termination of parental rights case. They also argue that there is not clear and convincing evidence to support the termination of their parental rights. We affirm, finding that the Tennessee Constitution does not prevent an elected, non-attorney juvenile court judge from appointing a juvenile court referee, who is an attorney but not elected, to hear cases involving the termination of parental rights, and that there is clear and convincing evidence to support the termination of parental rights in this case.

Edward Tuggle vs. AMISUB
W1999-02444-COA-R3-CV
Authoring Judge: Judge W. Frank Crawford
Trial Court Judge: Kay S. Robilio
Patient sued hospital for injuries sustained when she fell after hospital personnel failed to respond to her call for assistance to go to the bathroom. Patient went to the bathroom without incident and then decided to bathe her feet while she was out of bed. Patient filled a pan of water and sat in a chair bathing her feet when the telephone rang. When she got up to answer the telephone across the room, her wet feet slipped on the floor, and she fell, sustaining injuries. The trial court granted hospital summary judgment, and patient has appealed.

Judy Pennington vs. Frank Pennington
W2000-00568-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 of Madison County granted the Appellee a divorce on the grounds of inappropriate marital conduct and adultery. The trial court calculated child support based on the Appellant's average income prior to his first incarceration. In lieu of child support payments, the trial court awarded the Appellee an office building titled solely in her name. The trial court also awarded the Appellee $5,000.00 as alimony in solido to help defray her attorney's fees and expenses but declined to award periodic or rehabilitative alimony due to the trial court's division of marital property.

In Matter of Jo'Nise Perry
W2000-00209-COA-R3-CV
Authoring Judge: Judge Holly M. Kirby
Trial Court Judge: George E. Blancett
This is an appeal from an order terminating parental rights. The father was imprisoned during the hearing of this case. The father argues on appeal that the juvenile court should have allowed him to be physically present at the hearing and should have granted him discovery he requested, and also contends that terminating his parental rights was not in his daughter's best interest. We find that the trial court did not abuse its discretion in deciding not to transport the father to the hearing, and in limiting the father's discovery. We also find that the trial court did not err in finding that termination of the father's parental rights was in the child's best interest. On this basis, we affirm the order terminating the father's parental rights.

Shirley Marcum vs. Michael Trippett
W1999-00255-COA-R3-CV
Authoring Judge: Judge W. Frank Crawford
Trial Court Judge: Wyeth Chandler
This appeal involves the interpretation of a marital dissolution agreement pertaining to a division of marital property. The trial court interpreted the agreement to require Husband to begin paying $1,200.00 per month to Wife for her interest in the marital property, an insurance agency. Husband has appealed.

Robert Burton vs. Kent Gearin
W1999-01022-COA-R3-CV
Authoring Judge: Presiding Judge Alan E. Highers
Trial Court Judge: William B. Acree
The Appellee was appointed by the Circuit Court of Weakley County to represent the Appellant in his petition for post conviction relief. The circuit court denied the Appellant's petition, and the Tennessee Court of Criminal Appeals affirmed. The Appellant filed a complaint for legal malpractice against the Appellee. The Appellant also filed a motion to hold the matter in abeyance until he was released from prison. The trial court failed to rule on the motion for abeyance. The trial court entered summary judgment in favor of the Appellee. The Appellant appeals the trial court's grant of summary judgment in favor of the Appellee and the trial court's failure to rule on the motion for abeyance. For the reasons stated herein, we reverse the judgment of the trial court and remand this case for further proceedings consistent with this opinion.

Ronald Devaney v. City of Rockwood and Tml Risk
1998-00780-WC-R3-CV
Authoring Judge: Howell N. Peoples, Special Judge
Trial Court Judge: Frank V. Williams, Chancellor
This workers' compensation appeal has been referred to the Special Workers' Compensation Appeals Panel of the Supreme Court in accordance with Tennessee Code Annotated _ 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 suit barred by the statue of limitations, and granted summary judgment in favor the City of Rockwood and TML Risk Management Pool, Public Risk Services, Inc. We affirm.

Vestal Mfg. Co. v. Anderson
E1999-01470-WC-R3-CV
Authoring Judge: Howell N. Peoples, Special Judge
Trial Court Judge: Lawrence Howard Puckett, Judge
This workers' compensation appeal has been referred to the Special Workers' Compensation Appeals Panel of the Supreme Court in accordance with Tennessee Code Annotated _ 5-6-225(e)(3) for hearing and reporting to the Supreme Court of findings of fact and conclusions of law. The appellant, Vestal Manufacturing Co., appeals an award of thirty-five percent disability to the body as a whole to Teresa Anderson. Appellant contends the trial court erred (1) in finding that Ms. Anderson has a twenty percent medical impairment rather than a five percent medical impairment, (2) in concluding Ms. Anderson has a permanent partial disability of thirty-five percent to the body as a whole, and (3) in construing the phrase, "The employer takes the employee as it finds her." We affirm the judgment of the trial court.

Willie Grace Green v. Atrium Memorial Surgery
E1999-00730-WC-R3-CV
Authoring Judge: Peoples, Sp. J.
Trial Court Judge: Jeffrey Stewart, Chancellor
This workers' compensation appeal has been referred to the Special Workers' Compensation Appeals Panel of the Supreme Court in accordance with Tennessee Code Annotated _ 5-6-225(e)(3) for hearing and reporting to the Supreme Court of findings of fact and conclusions of law. The appellant, Atrium Memorial Surgery Center (hereafter "Atrium Memorial"), appeals an award of thirty-five percent disability to the body as a whole to Willie Grace Green. Appellant contends the trial court erred (1) in finding that the employee's underlying preexisting condition was advanced or progressed by her work, and (2) in awarding permanent partial disability benefits in any amount. We affirm the judgment of the trial court.

Robert Cunningham, Jr.,e t al vs. Shelton Security Service, Inc., et al
M1998-00023-SC-WCM-CV
Authoring Judge: Justice E. Riley Anderson
Trial Court Judge: Carol L. Mccoy
In this workers' compensation case, the estate of the employee, Robert W. Cunningham, Sr., has appealed from a chancery court judgment dismissing a claim for death benefits filed against the employer, Shelton Security Service, Inc. The employee, who worked as a security guard for the employer, died of heart failure while performing his duties at a store. At the close of the employee's proof, the trial court granted the employer's motion to dismiss on the basis that the emotional stress experienced by the employee the night of his death was not extraordinary or unusual for a security guard. The Special Workers' Compensation Appeals Panel, upon reference for findings of fact and conclusions of law, found that there was sufficient evidence of causation to warrant a trial and, thus, reversed the trial court's dismissal. Thereafter, the employer filed a motion for full Court review of the Panel's decision. We granted the motion for review to consider whether the trial court erred in dismissing the employee's claim on the basis that his heart failure did not arise out of the employment because it was not caused by a mental or emotional stimulus of an unusual or abnormal nature, beyond what is typically encountered by one in his occupation. After carefully examining the record and considering the relevant authorities, we agree with the Panel and reverse the trial court's judgment.

State vs. Joey Salcido
M1999-00501-CCA-R3-CD
Trial Court Judge: Jim T. Hamilton
Defendant Joey L. Salcido was indicted by the Giles County Grand Jury for three counts of incest and three counts of rape of a child. Following a jury trial, Defendant was convicted of three counts of aggravated sexual battery as a lesser-included offense of child rape and acquitted of the charges of incest. On March 15, 1999, the trial court sentenced Defendant as a violent 100% offender to a term of twelve years for each of his three convictions and ordered that all sentences be served consecutively. On April 15, 1999, thirty-one days after Defendant's judgment was entered, Defendant filed an untimely motion for new trial. The motion was nevertheless heard on April 19, 1999 and denied on April 20, 1999. On April 23, 1999, Defendant filed a notice of appeal which was also untimely due to the late filing of Defendant's motion for new trial. On May 25, 2000, Defendant filed a motion to waive the timely filing of his notice to appeal and on June 7, 2000, this Court granted Defendant's motion. In this appeal Defendant raises the following issues: (1) whether the Defendant's conviction of aggravated sexual battery, an offense which was neither charged in the indictment nor a lesser-included offense of the offenses charged, was error; (2) whether, assuming aggravated sexual battery is determined to be a lesser-included offense of child rape, the trial court erred in its jury instruction regarding the mental state necessary to convict him; (3) whether the trial court erred when it admitted certain evidence over Defendant's objections; (4) whether the cumulative effect of the trial court's errors renders the trial fundamentally unfair so as to offend Defendant's due process guarantees; and (5) whether the trial court erred when it imposed consecutive sentences. Defendant asserts that his first issue concerns subject matter jurisdiction and, therefore, must be heard by this Court pursuant to Tenn. R. App. P. 13(b). Defendant also urges this Court to exercise its discretion under Tenn. R. Crim. P. 52(b) or Tenn. R. App. P. 13(b) and consider the remaining four issues. After a thorough review of the record and applicable law, we find no errors requiring reversal and affirm the judgment of the trial court.

State vs. Joseph Miles
M1998-00682-CCA-R3-PC
Authoring Judge: Judge Thomas T. Woodall
Trial Court Judge: Robert W. Wedemeyer
Defendant Joseph Miles was convicted by a Robertson County jury of second degree murder. After a sentencing hearing, the trial court sentenced Defendant as a Range II violent offender to forty years. On appeal, Defendant raises the following issues: (1) whether the evidence is sufficient to support his conviction for second degree murder, (2) whether the sentence imposed by the trial court is excessive, and (3) whether a finding of plain error pursuant to Tenn. R. Crim. P. 52(b) justifies a dismissal of charges on the ground that the State participated in a conspiracy to kill Defendant. After a review of the record, we affirm the judgment of the trial court.