APPELLATE COURT OPINIONS

This workers’ compensation appeal has been referred to the Special Workers’ Compensation Appeals Panel in accordance with Tennessee Code Annotated section 50-6-225(e)(3) for hearing and reporting of findings of fact and conclusions of law. The only issue presented in this case is whether the trial court erred in finding Terry Blake was an employee of Southside Baptist Church within the meaning of the Tennessee Workers’ Compensation Act at the time of his fatal injury on April 29, 2004. In our view, the evidence does not preponderate against the trial court’s finding that Blake was an employee, and we affirm the judgment of the trial court.

Upon review under common-law writ of certiorari, the trial court affirmed disciplinary actions against Petitioner/Appellant by the Tennessee Department of Correction. We affirm in part and remand.

Plaintiff appeals the trial court’s dismissal of Plaintiff’s action immediately following a hearing on Plaintiff’s motion for temporary injunction. We affirm in part, vacate in part, and remand for further proceedings.

The defendant, Sherry Floyd McAlister, was convicted of attempted first degree murder, a Class A felony, and sentenced as a Range I, standard offender to twenty-five years in the Department of Correction. On appeal, she argues that the trial court erred by imposing an excessive sentence.  Following our review, we affirm the judgment of the trial court.

I join with the majority in concluding that the State’s special instruction submitted to the jury constituted reversible error. I write separately only to note the following additional reasons for finding the instruction was error. The special instruction, in its entirety, is as follows:

The court instructs you that in a sexual abuse case you may convict the defendant on the basis of the victim’s testimony alone. Corroboration of the victim’s testimony is not necessary.

We accepted this extraordinary appeal in order to (1) determine the effect of a district attorney general’s consideration of an irrelevant factor in deciding whether to grant pretrial diversion and (2) clarify when an interlocutory appeal from a denial of pretrial diversion should be granted. In this case, the defendant was indicted for criminally negligent homicide following the death of his daughter after the defendant left her in his car on a hot summer day. The defendant applied for pretrial diversion. The district attorney general’s office denied diversion, in part on the basis of its judgment that diversion of a negligent homicide “appears to be an aberration of the law.” The trial court refused to overturn the prosecutor’s decision, and the defendant applied for permission to pursue an interlocutory appeal. The trial court denied permission, and the defendant then applied to the Court of Criminal Appeals for permission to pursue an extraordinary appeal. The Court of Criminal Appeals denied the defendant’s application. We granted review and hold that the district attorney general abused his discretion when he relied upon an irrelevant factor in denying pretrial diversion. The trial court’s judgment affirming the denial of the defendant’s application for pretrial diversion is reversed, and this matter is remanded to the trial court for further proceedings consistent with this opinion.

The appellant, David Michael Chubb, was convicted by a jury in the Sumner County Criminal Court of four counts of aggravated sexual battery, one count of attempted aggravated sexual battery, one count of possession of marijuana, and one count of possession of drug paraphernalia. The trial court sentenced the petitioner to a total effective sentence of fourteen years incarceration in the Tennessee Department of Correction. On appeal, the appellant raises the following issues for our review: (1) whether the trial court erred in failing to inquire into the conflict of interest when it was revealed at trial that the appellant’s trial counsel had previously represented the mother of the minor victim; (2) whether the trial court erred in allowing the State to admit a videotape into evidence; (3) whether the trial court erred in denying the appellant’s motion for a bill of particulars; (4) whether the trial court erred in charging a special jury instruction requested by the State; (5) whether, according to the dictates of Blakely v. Washington, the trial court erred in sentencing the appellant; and (6) whether the trial court erred in imposing consecutive sentences. Upon our review of the record and the parties’ briefs, we reverse the convictions for aggravated sexual battery and attempted aggravated sexual battery based upon an improper instruction, affirm the drug related convictions, and remand for a new trial on the aggravated sexual battery and attempted aggravated sexual battery charges.

The defendant, Mario L. Smith, was convicted by a Davidson County Criminal Court jury of attempted second degree murder, a Class B felony, and vandalism over $1000, a Class D felony  and was sentenced by the trial court as a Range I, standard offender to concurrent sentences of nine years and two years, respectively, in the Department of Correction. The sole issue the defendant raises on appeal is whether the evidence was sufficient to sustain his attempted second degree murder conviction. We conclude that the evidence was sufficient to sustain the conviction and, accordingly, affirm the judgments of the trial court.

Plaintiff sued her former employer on grounds of breach of contract, retaliatory discharge, and violation of the Tennessee Human Rights Act, as well as the Tennessee Public Protection Act. The Trial Court granted defendant summary judgment. Plaintiff appealed and we affirm the Trial Court.

We granted and consolidated the applications for permission to appeal filed on behalf of Melissa Ann Layman and Jonathan Ray Taylor to determine the scope of a trial court’s discretion to deny a motion to nolle prosequi to which the defendant has consented. Layman’s appeal also presents the issue of whether a victim’s family has a right to be heard at a pretrial hearing concerning a plea agreement or a nolle prosequi. We conclude that when an uncontested motion to nolle prosequi or dismiss a criminal charge is independent of a plea agreement, a trial court’s discretion to deny the motion under Rule 48(a) of the Tennessee Rules of Criminal Procedure is limited to extraordinary circumstances indicating betrayal of the public interest. Because in each case the prosecutor’s independent, uncontested motion to nolle prosequi the greater charge of the indictment was neither filed in bad faith nor motivated by considerations clearly contrary to manifest public interest, we hold that the trial court abused its discretion in rejecting the nolle prosequi. We also hold in Layman’s case that the victim’s family did not have the right to be heard at the pretrial hearings concerning the plea agreement and nolle prosequi because such pretrial hearings are not critical stages of the criminal justice process as defined by Tennessee Code Annotated section 40-38-302(2). Any error in considering the statements of the family, however, was harmless. Accordingly, we reverse the judgments of the trial court and the Court of Criminal Appeals in each case and remand for further proceedings consistent with this opinion.

Following a jury trial, Defendant, Jeremy S. Crosby, was convicted of possession of over .5 grams of cocaine with intent to sell and unlawful possession of drug paraphernalia. He was sentenced to serve eighteen years in the Department of Correction for the cocaine conviction and eleven months, twenty-nine days for the paraphernalia conviction, for an effective sentence of eighteen years. On appeal, he argues that the trial court erred in failing to grant his motion to suppress, and that he received ineffective assistance of counsel. After a review of the record, the judgments of the trial court are affirmed.

This case involves a commercial lease. During the lessor’s divorce, his wife brought suit against the tenant to collect its current rent payments. The wife claimed that the underlying realty was marital property and she was entitled to the rent. The husband-lessor filed a motion to intervene in that case, but the trial court never addressed his motion. The husband signed some consent orders in the case and filed a motion on his own behalf, but he was never formally named as a party. After that case had concluded, the husband brought suit against the tenant for past due rent and other damages under the lease. The tenant claimed that his suit was barred by res judicata and collateral estoppel, but the trial court disagreed. After the trial court entered a judgment for the husband-lessor, the tenant appealed to this Court.  For the following reasons, we affirm.

Following a jury trial Defendant, Latisha Jones, was convicted of first degree felony murder and especially aggravated robbery, both Class A felonies. Defendant was sentenced to life imprisonment for her felony murder conviction. Following a sentencing hearing, the trial court sentenced Defendant as a Range I, standard offender, to twenty-three years for her especially aggravated robbery conviction and ordered her robbery sentence to be served consecutively to her sentence for felony murder. Defendant does not challenge the length or manner of service of her sentence. In her appeal, Defendant argues that (1) the evidence is insufficient to support her convictions; (2) the trial court erred in not suppressing her statement to the investigating officers; (3) the trial court erred in its instructions to the jury on facilitation; (4) the trial court erred in failing to instruct the jury on the lesser included offense of attempted especially aggravated robbery; and (5) Tennessee pattern instruction, criminal 43.04 is unconstitutional. After a thorough review, we affirm the judgments of the trial court.

The Defendant, Teresa Sue Skipper, was convicted of assault, resisting arrest, and obstruction of the execution of an arrest warrant. The Defendant filed a timely motion for a new trial, asserting that the trial judge infringed upon her constitutional rights by not properly instructing the jury. The motion for a new trial was denied. On appeal, the Defendant continues to assert that the jury instructions were erroneous. Furthermore, the Defendant now argues that her constitutional rights were violated because the law enforcement officers entered her home unlawfully and, but for the illegal entry of the officers, she would not have used force against them to protect and defend herself. We conclude that the trial judge properly instructed the jury and that the Defendant waived any claims regarding an unlawful search. Accordingly, we affirm the judgments of the trial court.

This is a petition for contempt for failure to pay child support. After a hearing, the trial court entered
an order dismissing the petition and reducing the respondent’s child support arrearage by $2,000. The petitioner now appeals, arguing that the trial court erroneously ordered a retroactive modification of the original child support order. We reverse.

James Edward Williams and Gladys Pineda Williams were divorced on December 13, 2004, following a very contentious proceeding in the Chancery Court of Knox County. Mr. Williams filed the action at bar against his former attorneys and also against attorneys representing his former wife. He alleges against these attorneys various acts of tortious activities, malpractice and violation of the Tennessee Consumer Protection Act. The trial court dismissed all of his claims, and Mr. Williams appeals. We affirm the action of the trial court.

This case involves accord and satisfaction. The defendants fraudulently transferred real property
owned by the plaintiff. The plaintiff filed this lawsuit against the defendants for damages related to
the fraudulent transfer. The parties later agreed to settle the matter for approximately $6,000. The
defendants initially paid the plaintiff $3,000 pursuant to the settlement agreement. Before the
remainder was paid, the plaintiff repudiated the agreement in writing. Later, the defendants sent the plaintiff a check for the remainder of the settlement. The plaintiff kept the second payment, but told the defendants that she did not consider the payment to satisfy the debt and stated her intent to set the case for trial. At the subsequent trial, the defendants did not appear. A judgment was entered in favor of the plaintiff for $58,000. The defendants filed a motion to set aside the judgment as well as a motion to dismiss the case, based on the original settlement agreement. The trial court granted the defendants’ motions and dismissed the case on that basis. The plaintiff now appeals. We affirm, concluding that the parties’ settlement agreement was an executory accord which was not effectively repudiated and was properly enforced under the circumstances.

This is a boundary line dispute. The parties are adjacent landowners. In April 2003, a dispute arose between the parties over the exact boundary line between their properties. The plaintiff erected a seven-foot privacy fence on what she perceived to be the proper boundary line. The defendant dismantled the fence and removed it. The plaintiff brought this action for the trial court to set the appropriate boundary line and for damages related to the defendant’s removal of her fence. After a hearing, the trial court held in favor of the plaintiff, determining that the boundary line should be set according to a 1997 survey conducted when the plaintiff purchased her property and awarding the plaintiff damages for the removal of the fence. The defendant now appeals. We affirm, concluding that, in the absence of a trial transcript or a proper statement of the evidence, we must presume that the trial court’s decision was supported by the evidence.

The plaintiff filed this action against Williamson County alleging the County failed and/or refused to return her dog and cat for which she sought monetary damages. The County filed a Tenn. R. Civ. P. 12.02(6) motion to dismiss, contending the negligence claim asserted pertained to a discretionary function for which the County was immune from suit under the Tennessee Governmental Tort Liability Act. The trial court granted the motion to dismiss. Finding no error, we affirm.

Aggrieved of his driving under the influence (DUI), fifth offense, conviction, the petitioner, Gregory L. Anderson, sought post-conviction relief, which was denied by the Criminal Court for Davidson County after an evidentiary hearing. On appeal, the petitioner pursues his claim of ineffective assistance of trial and appellate counsel. We affirm the denial of post-conviction relief.

Bobby Lee Brooks has appealed, seeking dismissal of an Order of Protection entered by the Trial Court. No record of the evidence has been filed. We affirm the Trial Court.

This workers’ compensation appeal has been referred to the Special Workers’ Compensation Appeals Panel of the Tennessee Supreme Court in accordance with Tennessee Code Annotated section 50-6-225(e)(3) for hearing, findings of fact, and conclusions of law. The trial court awarded the employee benefits based on 17.5 percent permanent partial disability to the whole body for an
injury to the left shoulder. On appeal, the employer contends that the award of 17.5 percent should be reduced to 7.5 percent based upon an anatomical impairment rating of 3 percent by the employee’s treating physician. After a careful review of the record, we find no error in the trial court’s award of 17.5 percent vocational disability. Accordingly, the judgment of the trial court is affirmed.

This case concerns the termination of parental rights. The appellants, who are the parents, seek reversal of the termination of their parental rights to the care and custody of their daughter, A.M.H. The trial court predicated the termination on the ground that the parents abandoned A.M.H. by willfully failing to visit her for four months. First, we hold that the statute of repose under section 36-1-113(q) of the Tennessee Code Annotated does not deprive this Court of jurisdiction to review the termination of parental rights. Second, because the undisputed evidence shows that there was animosity between the parties and that the parents were actively pursuing custody of A.M.H. through legal proceedings during the four-month period immediately preceding the filing of the petition for termination of parental rights, we hold that the trial court erred in finding a willful failure to visit. Finally, we conclude that the parents’ consent to transfer custody and guardianship of A.M.H. to the appellees was not made with knowledge of the consequences of the transfer. Therefore, according the parents those superior rights to the custody of their child that constitutional law mandates, only a showing of substantial harm that threatens the child’s welfare may deprive the parents of the care and custody of A.M.H. Although A.M.H. has now been with the appellees for more than seven years, six of those years elapsed after the parents’ first unsuccessful legal filing to regain custody. Evidence that A.M.H. will be harmed from a change in custody because she has lived and bonded with the Bakers during the pendency of the litigation does not constitute the substantial harm required to prevent the parents from regaining custody. For the reasons discussed below, the judgment of the Court of Appeals is reversed, and this case is remanded to the chancery court to be expeditiously transferred to the Juvenile Court of Shelby County for the entry of an order that implements a plan to reunite A.M.H. with her natural parents.

The Appellant, Robert Smith, was convicted by a Madison County jury of the misdemeanor offenses of possession of marijuana and possession of drug paraphernalia. As a result of these convictions, Smith received two sentences of eleven months and twenty-nine days in confinement. The trial court further ordered that the two sentences be served concurrently but consecutively to two previously imposed suspended misdemeanor sentences, which Smith was currently serving on probation. On appeal, Smith raises two issues for our review: (1) whether the evidence is sufficient to support the convictions; and (2) whether the trial court erred in imposing consecutive sentencing. After review of the record, we affirm.