Opinions

State vs. Nicholas Robert Brown
E1999-00110-CCA-R3-CD
Authoring Judge: Judge David H. Welles
Trial Court Judge: Richard R. Vance
The Defendant, Nicholas Roberts Brown, pleaded guilty to one count of statutory rape. Pursuant to his plea agreement, he received a sentence of one year, with the manner of service of the sentence to be determined by the trial court. After a sentencing hearing, the Defendant was ordered to serve sixty days in jail, with the remainder of his sentence to be served in community corrections. In this appeal as of right, the Defendant argues that he should have been placed on immediate probation. We hold that the Defendant failed to establish his suitability for full probation, but we modify the his sentence to sixty days incarceration followed by supervised probation because the Defendant is statutorily ineligible to participate in the community corrections program. The case is remanded for the trial court to determine the conditions of probation.

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. 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.

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. Larry Coulter
M1999-00784-CCA-R3-CD
Authoring Judge: Judge Norma McGee Ogle
Trial Court Judge: J. Steve Daniel
The appellant, Larry Coulter, appeals his conviction by a jury in the Rutherford County Circuit Court of one count of first degree premeditated murder. For his offense, the appellant received a sentence of life imprisonment in the Tennessee Department of Correction. In this appeal, the appellant presents the following issues for our review: (1) whether the trial court erred in failing to disqualify the office of the District Attorney General for the Sixteenth Judicial District from participating in the appellant's case; (2) whether the trial court erred in denying the appellant's pre-trial motion to suppress a statement that he made to officers of the La Vergne Police Department following his offense; (3) whether the trial court erred in denying the appellant's pre-trial motion to suppress the fruits of a warrantless search of his home by officers of the La Vergne Police Department; (4) whether the trial court erred in denying the appellant's pre-trial motion to exclude from evidence notes and letters written by the appellant to the victim prior to this offense; (5) whether the trial court erred in denying the appellant's pre-trial motion to exclude from evidence any proof of the victim's plans to move away from the Coulters' mobile home; (6) whether the trial court erred in overruling the appellant's objection to testimony by Sybil Victory concerning a telephone conversation; (7) whether the trial court erred in overruling the appellant's Tenn. R. Evid. 615 objection to testimony by Fawn Jones; (8) whether the trial court erred in overruling the appellant's objection to testimony by the State's firearms identification expert concerning a bullet recovered from the victim's body; (9) whether the trial court erred in permitting each member of the jury to "dry-fire" the murder weapon during the State's case-in-chief; (10) whether the trial court erred in permitting a State's witness to testify by deposition pursuant to Tenn. R. Crim. P. 15; (11) whether the trial court erred in permitting the State to impeach the appellant's psychologist with a "learned treatise" without satisfying the requirements of Tenn. R. Evid. 618; (12) whether the trial court erred in overruling the appellant's objection to rebuttal testimony by the State's psychologist that violated Tenn. R. Crim. P. 12.2(c); (13) whether the trial court erred in failing to charge the jury with certain special instructions requested by the appellant; (14) whether the trial court erred in permitting the State to alter or amend an exhibit immediately prior to the jury's deliberations; (15) whether the evidence adduced at trial is sufficient to support the jury's verdict; and (16) whether the cumulative effect of any errors requires the reversal of the appellant's conviction and the remand of this case for a new trial. Following a review of the record and the parties' briefs, we affirm the judgment of the trial court.

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.

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.

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.

State of Tennessee v. Charles A. Reynolds
M2000-00087-CCA-R3-CD
Authoring Judge: Judge Norma McGee Ogle
Trial Court Judge: Buddy D. Perry

Phyllis McBride vs. State
M2000-00034-CCA-R3-PC
Authoring Judge: Judge Robert W. Wedemeyer
Trial Court Judge: James K. Clayton, Jr.
The Petitioner, Phyllis McBride, was convicted by a Rutherford County jury of first degree murder. On appeal, this Court affirmed the conviction. The Petitioner filed an application for permission to appeal to the Tennessee Supreme Court which was denied. The Petitioner then filed a petition for post-conviction relief. Following a hearing, the petition was dismissed. The Petitioner now appeals the trial court's denial of post-conviction relief. Finding no error, we affirm the judgment of the trial court.

State vs. Chester Lebron Bennett
E2000-02735-CCA-RM-CD
Authoring Judge: Judge David G. Hayes
Trial Court Judge: Stephen M. Bevil
This case presents an appeal to this court after remand by order of the Tennessee Supreme Court. The Appellant, Chester Lebron Bennett, pled guilty to five counts of criminal exposure to HIV and was sentenced to five concurrent four-year Department of Correction sentences. This court, on direct appeal, remanded the case to the trial court for consideration of alternative sentencing. See State v. Chester Lebron Bennett, No. 03C01-9810-CR-00346 (Tenn. Crim. App. at Knoxville, July 28, 1999), perm. to appeal granted, (Tenn. Oct. 16, 2000). Subsequent to this court's decision, the supreme court released its decision in the case of State v. Daryl Hooper, No. M1997-00031-SCR-11-CD (Tenn. at Nashville, Sept. 21, 2000) (for publication). In State v. Daryl Hooper, the court announced new sentencing considerations regarding the need for deterrence as grounds for denying an alternative sentence. In light of its decision in State v. Daryl Hooper, the court remanded the case to this court for reconsideration. See State v. Chester Lebron Bennett, No. E1998-00614-SC-R11-CD (Tenn. at Knoxville, Oct. 16, 2000). After revisiting this issue under the standards announced in State v. Daryl Hooper, we affirm the trial court's denial of alternative sentencing.

State vs. Michael Cook
W2001-01539-CCA-R3-CD
Authoring Judge: Judge David H. Welles
Trial Court Judge: William B. Acree
The Defendant, Michael Joseph Cook, was convicted of driving under the influence, second offense. The trial court sentenced him to 11 months and 29 days and required him to serve six months of that sentence in the local jail. On appeal, the Defendant contends that (1) the evidence was insufficient to establish guilt beyond a reasonable doubt and (2) the trial court improperly sentenced the Defendant. We affirm the judgment of the trial court.

State vs. Michael Cook
W2001-01539-CCA-R3-CD
Authoring Judge: Judge David H. Welles
Trial Court Judge: William B. Acree
The Defendant, Michael Joseph Cook, was convicted of driving under the influence, second offense. The trial court sentenced him to 11 months and 29 days and required him to serve six months of that sentence in the local jail. On appeal, the Defendant contends that (1) the evidence was insufficient to establish guilt beyond a reasonable doubt and (2) the trial court improperly sentenced the Defendant. We affirm the judgment of the trial court.

William H. Jett v. State of Tennessee
M1999-01409-CCA-R3-PC
Authoring Judge: Judge David H. Welles
Trial Court Judge: Steve R. Dozier

State vs. James McKinley Cunningham
M1999-01995-CCA-R3-CD
Authoring Judge: Judge Joe G. Riley
Trial Court Judge: Buddy D. Perry
The defendant was convicted by a Grundy County jury of premeditated first degree murder and sentenced to life. In this appeal, he challenges: (1) the sufficiency of the evidence; (2) the admission of a photograph of the victim's body; (3) the exclusion of testimony relating to statements made by the victim; and (4) the evidentiary rulings relating to the victim's propensity toward violence. Upon our review of the record, we find no reversible error and affirm the judgment of the trial court.

In re: K.D.D. (DOB 9/20/96) and B.T.D. (DOB 1/13/98)
M2000-01554-COA-R3-JV
Authoring Judge: Judge Ben H. Cantrell
Trial Court Judge: Barry Tatum
The Juvenile Court terminated the parental rights of a mother to her young children. The mother appealed, arguing that she was not given an adequate opportunity to defend those rights. We find that she voluntarily failed to avail herself of the opportunities that were offered to her, and we affirm the trial court.

Thomas Gammons v. Peterbilt Motors Company,
M1999-02575-WC-R3-CV
Authoring Judge: John K. Byers, Sr. J.
Trial Court Judge: J. O. Bond, Judge
The trial court found the plaintiff had sustained a permanent partial disability to his right arm of sixty percent, which would entitle him to one-hundred twenty weeks of partial permanent disability. The defendant argues the trial judge erred in setting the amount of the award because the treating physician fixed the medical impairment rating at six percent, and the independent medical examiner fixed the rate at thirty-four percent; the trial judge used neither of these ratings to reach the amount awarded. We affirm the judgment of the trial court.

Donna Marcom v. Pca Apparel Industries, Inc. and WaUSAu
M2000-00377-WC-R3-CV
Authoring Judge: Tom E. Gray, Sp.J.
Trial Court Judge: John Rollins, Chancellor
The trial court found the plaintiff had suffered an injury arising out of her employment with the defendant and awarded her a vocational disability of sixty (6%) percent to the left leg. The defendant argues that the evidence does not support the award of sixty (6%) percent to the left leg based on an anatomical rating of twelve (12%) percent. We affirm the judgment of the trial court.

State vs. Thomas Edward Ford
M1999-2362-CCA-R3-CD
Trial Court Judge: Charles D. Haston, Sr.
The appellant, Thomas Edward Ford, was convicted of Class C felony aggravated assault and Class D vandalism. The Circuit Court of Warren County sentenced the appellant to five years for aggravated assault and two years for vandalism. The sentences were ordered to run consecutively. Upon appeal, the appellant raises the following issues for review: (1) propriety of the five-year sentence; (2) imposition of consecutive sentences; (3) sufficiency of the evidence for aggravated assault; and (4) misleading jury instruction. After review, we find no error. Accordingly, the judgment of the Circuit Court of Warren County is affirmed.

William Henderson vs. Donal Campbell
M2000-00411-COA-R3-CV
Authoring Judge: Judge William B. Cain
Trial Court Judge: Carol L. Mccoy
This is an appeal by a prison inmate from a dismissal of his suit for declaratory judgment in the Chancery Court of Davidson County. The trial court dismissed the claim pursuant to Tennessee Code Annotated section 41-21-804 for failure to state a claim on which relief could be granted. We affirm.

State vs. Charles B. Sullivan
M1999-02547-CCA-R3-CD
Authoring Judge: Judge David G. Hayes
Trial Court Judge: Walter C. Kurtz
Charles B. Sullivan entered guilty pleas in the Davidson County Criminal Court to three counts of aggravated rape, one count of especially aggravated burglary, three counts of aggravated burglary, and one count of rape, for which the trial court imposed an effective sentence of fifty-nine years. In this appeal as of right, the appellant contends that the individual sentences are excessive and that partial consecutive sentences are not warranted. After review, we affirm.

City of Springfield vs. Hobson Cleaning, Inc., et al
M2000-01114-COA-R3-CV
Authoring Judge: Presiding Judge Patricia J. Cottrell
Trial Court Judge: James E. Walton
This case involves a contract between the City of Springfield and defendant, United Services Unlimited, formerly Hobson Cleaning, to clean the floors of the police department. Defendant appeals whether the evidence preponderated against the judgment of the trial court. We affirm the judgment.

State vs. Coley
M1997-00116-SC-R11-CD
Authoring Judge: Justice Adolpho A. Birch, Jr.
Trial Court Judge: Donald P. Harris

State vs. Coley
M1997-00116-SC-R11-CD
Authoring Judge: Justice Adolpho A. Birch, Jr.
Trial Court Judge: Donald P. Harris

Fain v. Fain
M1999-02261-COA-R3-CV
Authoring Judge: Judge Charles D. Susano, Jr.
Trial Court Judge: Russell Heldman
In this post-divorce proceeding, Clifton Dean Fain ("Father") filed a petition seeking sole custody of the parties' minor child. Susan Lorraine Fain ("Mother") counterclaimed for a modification of the joint custody arrangement or, in the alternative, for sole custody of the child. The trial court awarded Mother sole custody. Father appeals the award of sole custody to Mother. He also challenges the award of attorney's fees to Mother and questions the fairness of the quantum of his visitation time with the child. Mother seeks attorney's fees for this appeal. We affirm.