APPELLATE COURT OPINIONS

The defendant, Herbert Cope, was convicted by an Overton County Criminal Court jury of sale of a Schedule II controlled substance (morphine), a Class C felony, and was sentenced by the trial court as a Range II offender to nine years in the Department of Correction. On appeal, he argues that the trial court imposed an excessive sentence by failing to apply applicable mitigating factors and erroneously applying an inapplicable enhancement factor. Following our review, we affirm the judgment of the trial court.

I join with my colleagues in concluding that reversal of both convictions is necessary. I write separately to note, in basic terms, my reasons for so concluding.

The appellant, Delshaun Epps, was indicted for especially aggravated robbery and felony murder.  After a jury trial, the appellant was convicted of especially aggravated robbery and reckless homicide. The appellant was subsequently sentenced to twenty-four years for the robbery conviction and four years on the homicide conviction. The trial court ordered the appellant to serve the sentences consecutively, for a total effective sentence of twenty-eight years. After the denial of a motion for new trial, the appellant pursued this appeal. On appeal, the appellant challenges the sufficiency of the evidence and his sentence. For the following reasons, we affirm the judgment of the trial court.

The defendant, Rick Braden, was convicted by a Shelby County jury of two counts of aggravated robbery, and he received concurrent nine-year sentences. On appeal, he argues that (1) the trial court erred in not allowing him to introduce the guilty pleas of two named co-defendants, (2) the evidence is insufficient to sustain his convictions, and (3) the trial court erred in failing to instruct the jury on the lesser-included offense of facilitation. Following our review of the record and the parties’ briefs, we conclude that the trial court erred in failing to charge the lesser-included offense of facilitation,    and therefore, reverse the judgments of the trial court and remand for a new trial.

Appellant asserts the circuit court erred by dismissing this action as untimely under the savings statute. We affirm.

This case is before us after remand by the Tennessee Supreme Court for reconsideration in light of its holdings in Summers v. State, 212 S.W.3d 251 (Tenn. 2007); Smith v. Lewis, 202 S.W.3d 124 (Tenn. 2006); and Shaun Hoover v. State, 215 S.W.3rd 776 (Tenn. Jan. 23, 2007). The petitioner, Dickey L. Cotton, appeals the circuit court’s summary dismissal of his pro se petition for writ of habeas corpus. Upon reconsideration, we affirm the court’s dismissal of the habeas corpus petition.

In November 2004, the defendant, Mohamed Medhet Karim, was indicted by a Wayne County grand jury on one count of attempted first degree murder. On August 31, 2005, following a jury trial in Wayne County Circuit Court, the jury convicted the defendant of attempted second degree murder and imposed a fine of $10,000. Following a sentencing hearing on October 13, 2005, the trial court sentenced the defendant to twelve years of incarceration as a Range I, standard offender, the maximum sentence allowed under the statute. The defendant timely filed a motion for a new trial on November 1, 2005; this motion was denied on January 4, 2006. The defendant now appeals, claiming his sentence was excessive. In making his claim, the defendant argues that two of the enhancement factors provided in Tennessee Code Annotated section 40-35-114 were improperly applied to his sentence. Concluding that application of the two enhancement factors which the defendant does not challenge is sufficient to support the twelve-year sentence imposed by the trial court, we affirm the judgment of the trial court.

I respectfully dissent from the majority’s Opinion affirming the Trial Court’s division of the marital property. I take no issue with the Trial Court and the majority concerning what was marital property and what was separate property. However, I respectfully disagree with the majority’s Opinion as I believe that it, as did the Trial Court, largely ignores the fact that this is a short term marriage, a very short term marriage, and what is the court’s goal in such a situation.

On this appeal, the sole issue is whether the trial court erred in awarding $1,500.00 per month as alimony in futuro to the wife. Finding no basis for determining the trial court abused its discretion in awarding alimony in this amount, we affirm.

In this divorce case, Husband argues that the trial court erred in its classification, valuation, and division of the marital estate, including the award to Wife of $1,000 to “equalize the marital property division.” Upon our determination that the evidence did not support an award of $1,000 to Wife to equalize the marital property division, the trial court’s judgment is vacated in that regard. In all other respects, Husband failed to show that the evidence preponderated against the trial court’s decision, and the judgment is affirmed. Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court Vacated in Part and Affirmed in Part; Cause Remanded
 

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. The employee suffered carpal tunnel injuries to both upper extremities. The trial court found that the employee was entitled to a permanent partial disability award of 30% to each upper extremity. The trial court assigned liability for the benefits upon the last insurer for the employee’s previous employer, finding that the employee’s condition had not been aggravated or advanced by her job duties with her subsequent employer. The insurance company appealed. We affirm the trial court in all respects.

The Defendant, Carroll Carson Sanders, pled guilty in two cases to eight counts of theft over $10,000, five counts of theft over $1000, and one count of theft over $500. The parties agreed to an effective sentence of ten years, with the trial court to determine the manner of service of the ten-year sentence, followed by five years of probation. After a sentencing hearing, the trial court ordered the Defendant to serve his effective ten-year sentence in the Department of Correction. On appeal, the Defendant contends that the trial court erred when it denied him an alternative sentence. Concluding there exists no error, we affirm the judgment of the trial court.

This workers' compensation appeal has been referred to the Special Workers' Compensation Appeals Panel in accordance with Tennessee Code Annotated section 5-6-225(e) (3) for hearing and reporting of findings of fact and conclusions of law. In this case, the trial court found the employee, Mary Nell McCrary, permanently totally disabled. The employer, Cracker Barrel, Old Country Store, Inc. (Cracker Barrel), appeals alleging the trial court based its determination on inaccurate factual findings, unreliable expert testimony and inadmissible evidence. Finding no error, we affirm the judgment of the trial court. Tenn. Code Ann. _ 5-6-225(e) (25) Appeal as of Right; Judgment of the Trial Court Affirmed DONALD P. HARRIS, SR. J., in which GARY R. WADE, J., and J. S. (STEVE) DANIEL, SR. J., joined. John Thomas Feeney, Catherine L. Grant, Nashville, Tennessee, for the Appellant, Cracker Barrel, Old Country Store, Inc. Neal Agee, Lebanon, Tennessee, for the Appellee, Mary Nell McCrary. MEMORANDUM OPINION I. FACTUAL AND PROCEDURAL BACKGROUND The parties to this action for workers' compensation benefits stipulated that Ms. McCrary suffered a compensable injury to her left shoulder on January 2, 1998. She reached maximum medical improvement on November 1, 1998, and was assigned a thirty-four percent (34%) impairment rating to the body as a whole by her treating physician, Dr. Roy Terry. Ms. McCrary was sixty years of age at the time of the trial. On January 2, 1998, while working at the Cracker Barrel Distribution Center as an order puller, she fell over a guard rail, and very painfully landed on her left shoulder. Ms. McCrary is left-handed, so the injury was to her dominant arm. After being examined at a local clinic, she was referred to Dr. Roy Terry, an orthopedic surgeon. After reviewing the results of an MRI, Dr. Terry recommended and performed surgery. Following surgery, the problems with her left arm worsened. She was given pain medication that was eventually replaced by a TENS unit which Ms. McCrary continues to use daily along with Tylenol. Dr. Terry released her on November 1, 1998, but restricted her from using her left arm and shoulder. She attempted to return to Cracker Barrel, but was told that the jobs there required use of both arms. Ms. McCrary testified that she has lost much of the use and strength in her left arm. She finds it difficult or impossible to perform common tasks such as brushing her teeth and hair, dressing herself and bathing. She does none of the housework, cooking, or yard work and has difficulty answering the telephone. Ms. McCrary spends about half her day lying down or reclining, and has not worked since being released by Dr. Terry. She had an automobile accident in March 1999, in which she injured her right shoulder and has also had surgery on that shoulder. Over the objection of Cracker Barrel, Ms. McCrary was allowed to testify that following her release by Dr. Terry, Cracker Barrel continued paying her weekly compensation for several years. According to Ms. McCrary, it was when the workers' compensation insurance carrier for Cracker Barrel indicated that after January 17, 26, she would no longer receive these payments that she filed her lawsuit for workers' compensation benefits. Ms. McCrary completed the eleventh grade at Mt. Juliet High School before getting married and discontinuing her education. She worked for four or five years at McFarland Hospital as a nurse's aide. Thereafter, for a time, she stayed home and took care of her son before going to work for her husband and his father in their business, McCrary and Son Excavating. Her duties there included cleaning the offices, doing light filing, and answering the telephone. When she and Mr. McCrary were divorced, she left that job and began working for Johnson's Retirement Center as a patient assistant and housekeeper. Ms. McCrary held that job for four to six years and then accepted employment from Cracker Barrel where she worked for about four years prior to her injury. Her job at Cracker Barrel involved filling, packing and shipping orders from the various Cracker Barrel stores and required that she use both arms, lifting and reaching. Ms. McCrary testified she could not do any of the jobs she had previously held. She has had no vocational training of any kind and is not good at reading or math. She described herself as being a slow learner in school. Ms. McCrary is able to write with her left hand and can pick up objects that are not heavy. She testified, however, that she was not able to do anything for a long period of time because of the pain in her shoulder and arm. -2- ****** Document Outline ****** * Page_1 * Page_2 * Page_3 * Page_4 * Page_5 * Page_6 * Page_7 * Page_8 * Page_9

The Appellant, Eric Michael Goldman, was convicted by a Marshall County jury of misdemeanor reckless endangerment and public intoxication and received sentences of eleven months and twenty-nine days and thirty days, respectively. On appeal, the Appellant raises the single issue of sufficiency of the evidence. After review, the judgments of the trial court are affirmed.

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 and reporting to the Supreme Court of findings of fact and conclusions of law. On appeal, the employee contends that the trial court erred when it dismissed the employee’s back injury claim based on her failure to comply with the notice provisions of Tennessee Code Annotated section 50-6-201. Although dismissing the employee’s claim, the trial court made an alternative finding that the back injury was work-related and resulted in a 20% vocational impairment to the body as a whole. The employer appeals this alternative ruling contending that the trial court erred in finding the injury work-related. We conclude that the trial court erred in dismissing the employee’s claim based on the notice provisions and affirm the trial court’s finding that the back injury is work-related and results in a 20% impairment to the body as a whole. We conclude that the alternative finding is supported by the record. Therefore, we affirm in part and reverse in part, remanding this case to the trial court for further proceedings consistent with this opinion.

The defendant, George Robert Waggoner, was convicted by a DeKalb County jury of two counts of premeditated murder, two counts of murder committed during the perpetration of a theft of property valued at over one thousand dollars, and one count of theft of property valued at over one thousand dollars, a Class D felony, involving the deaths of his grandparents. The premeditated murder and felony murder counts merged, and the trial court imposed two consecutive life sentences for the murder convictions concurrent with a three year sentence, as a Range I, standard offender, for the theft conviction. The defendant now appeals, claiming the trial court erred in admitting prior bad acts committed by the defendant, in admitting photographs of the deceased victims taken at the crime scene, and in imposing consecutive life sentences. Following our review, we affirm the judgments of the trial court.

A judgment lienholder appeals from a trial court’s determination that a purchase money mortgage lien on real property has priority over a previously recorded judgment lien. Based upon this court’s holding in Guffey v. Creutzinger, 948 S.W.2d 219 (Tenn. Ct. App. 1998), we affirm the trial court.

This appeal involves petitions for contempt and to modify a custody order. Both the mother and the father filed petitions seeking to have the initial custody order modified, and both asked that the other parent be held in contempt for failing to comply with the parenting plan. They presented various arguments about why custody should be changed in their favor, but neither alleged that any circumstances had changed since the initial order was entered. The trial court dismissed both petitions after finding that both parties had failed to prove a material change in circumstances to justify a modification of the custody order. The court also dismissed both petitions for contempt. For the following reasons, we affirm.

This case arises from a default judgment entered against Appellant for failure to comply with an Order to Compel. Appellant appeals. We affirm and remand for determination of damages for frivolous appeal.

In this action for legal malpractice against defendant attorney, the Trial Court granted defendant summary judgment on the ground that plaintiff, as a condition precedent to maintaining the malpractice action, had to obtain post-judgment relief from his criminal conviction, which plaintiff had failed to do after bringing his post-judgment action. On appeal, we affirm.

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 and reporting to the Supreme Court findings of fact and conclusions of law. Bobby Chris Couch was injured within the course and scope of his employment when he fell while unloading a truck. During the fall he caught his right leg between the truck and the loading dock. This resulted in a crushing injury to the right leg and a back sprain. Mr. Couch filed a complaint seeking to recover workers’ compensation benefits for permanent partial disability to his leg and back. The trial court awarded 5% partial disability to the lower extremity. However, the court found no permanent impairment to the back. The court’s final order required the employer to be responsible for future medical benefits for the leg and back injury. The employer has appealed only the award of future medical benefits for the back injury claiming that the trial court erred in making such an award when there was no expert medical proof of either permanent impairment or work limitations for the back injury. After review we affirm the trial’s court findings.

In this divorce proceeding, the appellant contends the trial court erred by granting the divorce to his wife and designating her as the primary residential parent of their minor child. Finding no error, we affirm.

The Petitioner, Johnny Parker, appeals the lower court's denial of his petition for habeas corpus relief. The State has filed a motion requesting that this Court affirm the trial court pursuant to Rule 20, Rules of the Court of Criminal Appeals. The Petitioner has failed to assert a ground that would entitle him to habeas corpus relief. Accordingly, we affirm the trial court's dismissal.

The Petitioner, Cornelius D. Pierce, appeals the lower court's denial of his petition for habeas corpus relief. The State has filed a motion requesting that this Court affirm the trial court pursuant to Rule 20, Rules of the Court of Criminal Appeals. The Petitioner has failed to comply with the procedural requirements for seeking habeas corpus relief. Accordingly, we affirm the trial court's dismissal.

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 5-6- 225(e)(3) for hearing and reporting to the Supreme Court of findings of fact and conclusions of law. In this appeal, the employer asserts that the trial court erred in finding that the employee's injury, caused by a fall in the workplace, arose from her employment. We agree with the findings of the trial court and in accordance with Tennessee Code Annotated section 5-6-225(e) (2) affirm the judgment of the trial court. Tenn. Code Ann. _ 5-6-225(e) (1999) Appeal as of Right; Judgment of the Trial Court Affirmed JON KERRY BLACKWOOD, SR. J., in which WILLIAM M. BARKER, C.J., and J. S. (STEVE) DANIEL, Sr. J.,joined. Daniel T. Swanson, Knoxville, TN, for the Appellant, Patsy Diane Ownby. John P. Dreiser, Knoxville, TN, for the Appellee, Marriott Hotel Services, Inc., d/b/a Marriott Business Services. MEMORANDUM OPINION I. FACTUAL BACKGROUND Patsy D. Ownby [hereinafter "the employee"] was employed as a billing specialist for Marriot Hotel Services [hereinafter "the employer"]. She began her employment with the employer in 2. -1- She had an associate's degree in accounting and was 53 years old at the time of trial. On August 15, 23, the employee was attending a daily "stand-up meeting" within her department. As the meeting was concluding, she testified that she walked down an aisle and "her feet caught on the carpet" causing her to fall. She described the fall as "being shot out of a rocket." She further testified that she was wearing non-skid office type shoes, that she had previously stumbled on the carpet, and that she was aware that other employees had stumbled. As a result of the fall, the employee suffered carpet burns on both hands and knees, broke her glasses and watch, and sustained injuries to her right arm, cervical spine and left knee. After the accident, the employee saw Dr. Basile, who was a physician offered to her as a part of a panel of physicians provided by the employer. Dr. Basile referred the employee to several physicians to treat her for her injuries. She was treated by Dr. Finelli with therapy and medication for her cervical spine injury. Dr. Finelli referred her to Dr. Bellner, a physiatrist. Dr. Koenig performed surgery on employee's left knee. She was also seen by Dr. Killeffer for a cervical spine evaluation and Dr. Burns for an arm evaluation. Dr. William E. Kennedy saw the employee for an independent medical evaluation and agreed with Dr. Finelli's assessment that the employee had suffered a 7% impairment of the cervical spine. In addition, Dr. Kennedy, who testified by deposition, further opined that the employee's left knee had a 2% whole body impairment rating, for a combined rating of 9%. II. RULING OF THE TRIAL COURT The trial court found the injury to be compensable, and awarded 22.5% permanent partial disability to the body as a whole. III. STANDARD OF REVIEW The standard of review of issues of fact is de novo upon the record of the trial court accompanied by a presumption of correctness of the findings, unless the preponderance of the evidence is otherwise. Tenn. Code Ann. _ 5-6-225(e)(2); Lollar v. Wal-Mart Stores, Inc., 767 S.W.2d 143, 149 (Tenn. 1989). Where the trial judge has seen and heard the witnesses, especially if issues of credibility and weight to be given oral testimony are involved, considerable deference must be afforded those circumstances on review since the trial court had the opportunity to observe the witness's demeanor and to hear in-court testimony. Long v. Tri-Con Industries, Ltd., 996 S.W.2d 173, 178 (Tenn. 1999). IV. ANALYSIS The only issue raised by the employer is whether the trial court erred in finding that the injury arose out of employee's employment. The employer contends that the employee's injuries were caused by an idiopathic fall, and thus not compensable. -2- ****** Document Outline ****** * Page_1 * Page_2 * Page_3 * Page_4 o 4 o 5 o 6 o 7 o 8