APPELLATE COURT OPINIONS

In this appeal, the trial court determined that a deed to the involved property created a resulting trust in favor of the family of the deceased grantor property owner. Grantee appeals. We affirm.

The Appellant, Marlon Fitzgerald, appeals the denial of his petition for post-conviction relief by the Shelby County Criminal Court. Fitzgerald was convicted by a jury of first degree premeditated murder, felony murder, and theft of property. On direct appeal, this court affirmed the convictions and held that there was sufficient evidence to support the convictions and that the trial court’s failure to charge the jury with lesser-included offenses was harmless error. Fitzgerald then filed a petition for post-conviction relief, alleging the ineffective assistance of counsel, which the post-conviction court denied following an evidentiary hearing. After a review of the entire record on appeal and the arguments of the parties, we affirm.

This workers’ compensation appeal has been referred to the Special Workers’ Compensation Appeals Panel of the Tennessee Supreme Court in accordance with the provisions of Tennessee Code Annotated section 50-6-225(e)(3) for hearing and reporting to the Supreme Court of findings of fact and conclusions of law. The trial court found that Employee had sustained a hearing loss as a result of his employment and awarded 30% permanent partial disability to the hearing of both ears. Employer has appealed, arguing that the trial court erred in finding that Employee's hearing loss was work related. In the alternative, Employer argues that the trial court erred in finding the hearing loss to be related to Employee's work for Employer. Finally, Employer contends that the trial court used an incorrect burden of proof. We affirm the judgment.

This workers’ compensation appeal has been referred to the Special Workers’ Compensation Appeals Panel of the Supreme Court in accordance with Tennessee Code Annotated section 50-6-225(e)(3) for a hearing and a report of findings of fact and conclusions of law. The employee alleged that he suffered a compensable injury as a result of a fall at his workplace. The trial court held that the injury was not compensable because the fall was idiopathic and was not associated with a hazard of the employment. Employee appeals, contending that the evidence preponderates against the finding of the trial court. We affirm the judgment.

The Appellant, Reginald Cortez Richardson, was convicted by a McNairy County jury of two counts of Class B delivery of cocaine and was sentenced, as a Range II offender, to concurrent  twelve-year sentences in the Department of Correction. On appeal, Richardson raises the single issue of whether the evidence is sufficient to support his convictions. Following review, the judgments of conviction are affirmed.

This workers’ compensation appeal has been referred to the Special Workers’ Compensation Appeals Panel of the Supreme Court in accordance with Tennessee Code Annotated section 50-6-225(e)(3) (2005) for hearing and reporting to the Supreme Court of findings of facts and conclusions of law. The employer asserts that the trial court erred by finding that the employee had proven a compensable injury, determining that the date of injury was May 13, 2004, and awarding the employee a permanent partial disability of 50% to the right arm. Pursuant to our duty to review and weigh the evidence, we conclude that the evidence does not preponderate against the trial court’s finding of a compensable injury. We disagree with the trial court’s finding of the date of the injury and the trial court’s award. Accordingly, we affirm the finding of a compensable injury and modify the date of injury and the amount of the award.

Following a jury trial, the petitioner, Edward L. Williams, was convicted of premeditated first degree murder and especially aggravated robbery. The trial court imposed consecutive sentences of life for the murder conviction and twenty-two years for the especially aggravated robbery conviction. On direct appeal, this court remanded for entry of an amended judgment reflecting a sentence of life with the possibility of parole and deleting any reference to a merger of the premeditated murder count and the felony murder count. The court further ordered that the sentences run concurrently rather than consecutively. The judgment of the trial court was otherwise affirmed. State v. Edward L. Williams, No. E2002-00325-CCA-R3-CD, 2003 WL 22462533 (Tenn. Crim. App. at Knoxville, Oct. 31, 2003), perm. app. denied (Tenn. Dec. 19, 2005). The petitioner filed a timely petition for post-conviction relief which the post-conviction court subsequently denied after an evidentiary hearing. The petitioner now appeals. In this appeal, the petitioner contends that his trial counsel was ineffective. Following a thorough review of the record and the applicable law, we affirm the judgment of the post-conviction court.

This workers’ compensation appeal has been referred to the Special Workers’ Compensation Appeals Panel of the Tennessee Supreme Court in accordance with the provisions of Tennessee Code Annotated section 50-6-225(e)(3) for hearing and reporting to the Supreme Court of findings of fact and conclusions of law. The trial court awarded the plaintiff 80% permanent partial disability to the right leg. The appellants claim that the trial court’s award is erroneous because it was based on the body as a whole and not a scheduled member, and further that the award is excessive and is not supported by the evidence. We conclude that the trial court based its ruling on loss of use of the scheduled member. We further conclude that the preponderance of the evidence supports the trial court’s award. Accordingly, we affirm the trial court’s judgment.

This case comes before us on an appeal of the trial court’s finding that the injured party was not
made whole by his recovery for injuries received in an automobile collision. We conclude that the trial court erred in its computation of the injured party’s total recovery by failing to consider the injured party’s recovery from all sources. We also conclude that the record is insufficient to determine whether the injured party has been made whole. Accordingly, we remand this case to the trial court for the purpose of permitting both parties to present evidence. The injured party will have the burden of presenting evidence that sufficiently enables the trial court to make a reasonable assessment of the injured party’s damages. The trial court will determine the monetary value of the party’s damages. Finally, if the trial court finds that the injured party has been made whole, reimbursement should be awarded to the insurer only to the extent that the injured party’s total recovery exceeds the injured party’s total damages.

Petitioner was convicted by a jury of one count of felony possession of cocaine with intent to sell, a class B felony, and one count of felony possession of marijuana with the intent to sale, a class E felony. Petitioner was sentenced as a Range I offender to twelve years for the cocaine conviction and two years for the marijuana conviction to be served concurrently in the Tennessee Department of Correction and a $100,000 fine. Petitioner’s conviction was affirmed by this court. See State v. Boales, 2005 WL 517538, at *1. (Tenn. Crim. App., at Jackson, March 3, 2005) perm. app. denied (Tenn. June 27, 2005). This Court also affirmed his sentence as to incarceration, but reduced the fine imposed to $50,000. See Boales, 2005 WL 517538. Petitioner timely filed a petition for postconviction relief alleging ineffective assistance of trial counsel. The trial court dismissed the petition. After a thorough review of the record of the post-conviction hearing, this Court affirms the judgment of the trial court dismissing the petition.

This workers’ compensation appeal has been referred to the Special Workers’ Compensation Appeals Panel in accordance with Tennessee Code Annotated § 50-6-225(e)(3) for hearing and reporting of findings of fact and conclusions of law. In this case, the trial court found that the employee suffered from post-traumatic stress disorder as a result of witnessing a visually disturbing incident in the course of his job as a police dispatcher and awarded 15% permanent partial disability to the body as a whole. The employer has appealed, contending that the triggering incident was not beyond the normal stress associated with the employee’s job and was therefore not compensable. The employee contends the trial court’s award was inadequate. Because we find that the triggering event went beyond the normal stress level associated with the employee’s job and that the employee does not have to be exposed to danger in order to recover for a purely psychological injury, we affirm the trial court’s decision.

The Defendant, Walter Martin, was convicted of rape, a Class B felony, and sentenced to ten years at 100% in the Department of Correction. On direct appeal, he argues that the evidence was insufficient to establish Shelby County as the proper venue for his trial and that he was erroneously sentenced. Following our review, we affirm the judgment of the trial court and the Defendant’s sentence but remand for correction of two clerical errors made in the judgment of conviction.

The defendant, James William Gann, Jr., was convicted of first degree premeditated murder, arson, and setting fire to personal property. See T.C.A. §§ 39-13-202(a)(1), -14-301(a)(1), -14-303(a) (1997). He received a sentence of life with the possibility of parole for the premeditated murder conviction. The trial court imposed a sentence of six years for the arson conviction and two years for the setting fire to personal property conviction to be served consecutively to each other and to the murder conviction for an effective sentence of life plus eight years. In this appeal, the defendant asserts (1) that the evidence is insufficient to support his convictions, (2) that the trial court erred in the admission of certain evidence, (3) that the State engaged in prosecutorial misconduct, and (4) that his sentence is excessive. Upon our review of the record, there is no reversible error and the judgments of the trial court are affirmed.

The defendant, Richard Yarbrough, was convicted by a Knox County jury of the sale of less than 0.5 grams of cocaine, the delivery of less than 0.5 grams of cocaine, and possession of drug paraphernalia. The convictions for sale and delivery were merged, and the defendant was subsequently sentenced to eleven years for that conviction and eleven months and twenty-nine days for the paraphernalia conviction, with the sentences to run concurrently. On appeal, he contends that: the evidence was insufficient to convict him for the sale and delivery of cocaine because the sale was incomplete; the trial court erred in allowing a bag containing rock cocaine-like pieces of evidence to be introduced during trial; and the trial court erred in sentencing. After review, we conclude that no error exists and affirm the judgment from the trial court.

The defendant, Adrian Porterfield, was convicted by a Shelby County jury of voluntary
manslaughter, a Class C felony, and was sentenced to serve four years and six months in the county workhouse as a Range I, standard offender. On appeal, the defendant challenges the trial court’s judgment on grounds that: (1) the evidence was insufficient to support his conviction; (2) the trial erred in admitting a hearsay statement by the victim; (4) the trial court erred in not allowing evidence of drugs found on the victim’s body; (5) the trial court erred in not allowing testimony of a statement the victim made to police regarding his involvement in a robbery of the defendant; (6) the trial court erred in denying alternative sentencing; and (7) the length of his sentence is excessive. We affirm the trial court but remand the case for a corrected judgment because the sentence imposed in the judgment conflicts with the sentence reflected in the sentencing hearing transcript.

The Appellant, Davidson M. Taylor, appeals his convictions by a Shelby County jury for felony evading arrest in a motor vehicle and driving under the influence (“DUI”). For his felony conviction, Taylor received a one-year suspended sentence. Taylor was also sentenced to eleven months and twenty-nine days for the DUI conviction, with forty-eight hours to be served in confinement. On appeal, Taylor argues that the trial court misapplied established rules of evidence when it ruled that a defense witness’ testimony be stricken. Following review of the record before us, we find no error and affirm the judgments of conviction and resulting sentences.

This workers’ compensation appeal has been referred to the Special Workers’ Compensation Appeals Panel of the Supreme Court in accordance with Tennessee Code Annotated section 50-6-225(e)(3) for hearing and reporting to the Supreme Court of findings of fact and conclusions of law. The employee asserts that the trial court erred in awarding her a 43.75% permanent partial disability, rather than permanent total disability. We agree and therefore reverse the judgment of the trial court and enter judgment to the employee for permanent and total disability. We also conclude that the trial court erred by failing to calculate the disability resulting from the shoulder injury independent of the employee’s preexisting back injury. We therefore remand the case to the trial court for further proceedings.

I fully concur in the judgment of the Court that Appellant’s convictions and sentences should be affirmed. However, I disagree with the majority’s rationale concerning the striking by the trial court of Ms. Taylor’s testimony that she had never seen her husband intoxicated.

After a bench trial, the Rutherford County Circuit Court convicted the defendant, Lavon Nunnery, of misdemeanor assault for threatening to turn his pit bulldog loose on his neighbor. The trial court subsequently sentenced him to eleven months, twenty-nine days in the county workhouse, to be served consecutively to the three-year sentence for assault with a deadly weapon for which he was on probation at the time of the instant offense. In a timely appeal to this court, the defendant challenges the sufficiency of the convicting evidence, arguing that the proof was insufficient to show that the victim reasonably feared imminent bodily injury from the dog. Following our review, we affirm the judgment of the trial court.

The petitioner, Mindy Sue Dodd, was convicted by a Rutherford County jury of first degree murder and conspiracy to commit first degree murder in the death of her husband, Sherman Henry Dodd. She received concurrent sentences of life in prison and twenty years. This court affirmed her convictions on direct appeal, and her application for permission to appeal to the Tennessee Supreme Court was denied. State v. Mindy S. Dodd, No. M2002-01882-CCA-R3-CD, 2003 WL 22999444, at *1 (Tenn. Crim. App. Dec. 23, 2003), perm. to appeal denied (Tenn. June 1, 2004). The petitioner sought post-conviction relief alleging, inter alia, denial of her constitutional right to effective assistance of counsel. After a hearing, the post-conviction court found that the petitioner had failed to show that her trial counsel was ineffective and dismissed her petition. Following our review of the record and the findings of the post-conviction court, we affirm the dismissal of the petition.

This workers’ compensation appeal has been referred to the Special Workers’ Compensation Appeals Panel of the Supreme Court in accordance with Tennessee Code Annotated § 50-6-225(e)(3) for hearing and reporting of findings of fact and conclusions of law. In this case, the trial court found the employee’s hearing loss to be compensable, and awarded benefits for ninety percent hearing loss to both ears. The employer has appealed, contending that the trial court erred in reopening the proof and ordering an independent medical examination after the case had been tried and a ruling had been issued. The employer also contends that the trial court erred in finding that the employee’s hearing loss was work-related, and that the size of the award is excessive. We hold that the evidence is sufficient to support the trial court’s finding on causation, even if the post-trial evidence is not considered, and affirm the amount of the award of permanent partial disability.

This is an insurance case. The plaintiff landlord purchased insurance on an apartment building that he owned. The defendant tenant leased an apartment in the landlord’s building. A fire occurred and damaged the apartment building. Pursuant to the insurance policy, the plaintiff insurance carrier paid the landlord to cover the fire damage. The landlord and the insurance carrier, as the landlord’s subrogee under the contract of insurance, filed a lawsuit against the tenant, claiming negligence and breach of contract and seeking compensation for the damage to the apartment building caused by the fire. The tenant moved for summary judgment, asserting that, as a tenant, she was an implied coinsured under the landlord’s insurance policy, and that consequently the plaintiff insurance carrier had no right of subrogation against the tenant. The trial court granted summary judgment in favor of the tenant. The landlord and the insurance carrier appeal. We affirm, holding that, in the absence of an express agreement to the contrary, the tenant is deemed a co-insured under the landlord’s insurance policy, and therefore subrogation against the tenant is not available to the insurance carrier.

This workers' compensation appeal has been referred to the Special Workers' Compensation Appeals Panel of the Supreme Court 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 court awarded 33% permanent partial disability to the body as a whole. The employee has appealed that ruling, contending that the trial court erred in excluding medical proof concerning a pre-existing disability unrelated to his work injury. The employee further contends that the trial court erred in failing to award permanent total disability benefits. We conclude that the exclusion of the medical evidence was error, but that it did not affect the result of the case. We affirm the judgment of the trial court as to permanent partial disability benefits.

This matter is before us upon remand by the United States Supreme Court for reconsideration in light of that Court’s decision in Cunningham v. California, 549 U.S.__, 127 S. Ct. 856 (2007). In our
initial disposition of this matter, State v. Gomez, 163 S.W.3d 632 (Tenn. 2005), we concluded that the Defendants were not entitled under Apprendi v. New Jersey, 530 U.S. 466 (2000), and its progeny to relief as to their sentences. Upon further review following Cunningham, we now conclude that the trial court’s enhancement of the Defendants’ sentences on the basis of judicially determined facts other than the Defendants’ prior convictions violated the Defendants’ constitutional rights under the Sixth Amendment to the United States Constitution. In order to redress the unconstitutional enhancement of the Defendants’ sentences, we vacate their sentences and remand this matter to the trial court for resentencing. Tenn. R. App. P. 11; Judgments of the Trial Court Affirmed in Part, Vacated and Remanded in Part
 

The Defendant, Robert Christopher Maclin, was convicted of driving on a revoked license and possession of more than .5 grams of cocaine with intent to deliver. He was sentenced as a Range II, multiple offender to thirteen years in the Department of Correction. On appeal, he argues that the evidence was insufficient to support his cocaine conviction because he was not in possession of cocaine when he was arrested. Following our review, we affirm the judgment of the trial court.