APPELLATE COURT OPINIONS

Adam Charles Partin (“Father”) filed a petition to modify his child support obligation claiming that a significant variance existed between his income at the time his child support obligation was originally calculated and his current income. The case was tried and the Trial Court entered an order finding and holding, inter alia, that a significant variance did exist making the child support order eligible for modification. The Trial Court then reduced Father’s child support. Delores Lourraine Wallis (“Mother”) appeals claiming that the Trial Court erred in calculating Father’s income and that a significant variance does not exist. We affirm.

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 50-6-226(e)(3) for hearing and reporting of findings of fact and conclusions of law. In determining the appropriate vocational disability rating, the trial court considered conflicting medical testimony, the employee's work duties, and other factors such as the employee's education, age, and skill level. The employer contends the trial court erred when it awarded a 10% vocational disability rating to the plaintiff's right leg. After a careful review of the record, we conclude that the trial court's judgment should be affirmed.

In a boundary dispute, the trial court refused to find estoppel by deed since the party raising the estoppel had not relied on the erroneous deeds. We affirm.

The Petitioner, Nathaniel Benton, a/k/a, Nathan Gray filed a pro se petition for a writ of habeas corpus. The habeas court denied relief, and the Petitioner filed a timely notice of appeal. On appeal, the Petitioner contends that his conviction and subsequent sentence for being a habitual criminal is void because the underlying convictions upon which the habitual criminal conviction is based are void. Finding no reversible error, we affirm the judgment of the habeas court.

The Defendant, Myrna Jill Johnson Halle, was convicted of reckless aggravated assault and received an effective sentence of twelve years in prison to be served at sixty percent. On appeal, the Defendant contends that: (1) the evidence was insufficient to support her conviction and established that the Defendant acted in self-defense; and (2) the trial court erred when it sentenced her. Finding no reversible error, we affirm the judgment of the trial court.

Capital Appellant Michael Dale Rimmer appeals as of right his sentence of death resulting from the 1997 murder of Ricci Ellsworth. In November 1998, Appellant Rimmer was convicted of theft of property, aggravated robbery and premeditated first degree murder. He was sentenced to death for the murder conviction. On direct appeal, a panel of this Court affirmed  Appellant Rimmer’s convictions but, concluding that the sentencing verdict was “enigmatic and uncertain,” vacated the sentence of death and remanded for a new sentencing hearing. See State v. Michael D. Rimmer, No. W1999-00637-CCA-R3-DD, 2001 WL 567960, at *1 (Tenn. Crim. App., at Jackson, May 25, 2001). Accordingly, the case was remanded to the Criminal Court for Shelby County for re-sentencing. At the conclusion of the re-sentencing hearing in January 2004, the jury found the presence of one statutory aggravating circumstance, i.e., that the defendant was previously convicted of one or more felonies whose statutory elements  involved the use of violence to the person, T.C.A. § 39-13-204(i)(2) (1997). The jury further determined that the aggravating circumstance outweighed the mitigating circumstances beyond a reasonable doubt and imposed a sentence of death. The trial court approved the sentencing verdict. Appellant Rimmer timely appeals presenting for our review the following issues: (1) whether the trial court erred in denying the motion for recusal; (2) whether the trial court erred in denying the motion for a continuance; (3) whether the trial court erred in excluding mitigation evidence; (4) whether the prosecutor engaged in misconduct; (5) whether the jury instruction on reasonable doubt was error; (6) whether the Appellant knowingly and voluntarily waived his right to testify; (7) whether it was error for the jury to be informed that the Appellant had been on “death row;” (8) whether the jury verdict was complete; (9) whether cumulative error requires reversal; and (10) whether the Tennessee death penalty statutes are constitutional. After review, we find no error of law requiring reversal. Accordingly, we affirm the jury’s imposition of the sentence of death in this case.

I concur in the results and most of the reasoning in the majority opinion. I disagree, however, with the opinion’s conclusion that the trial court properly instructed the jury that the culpable mental state of recklessness would satisfy the unlawful sexual penetration element in the offense of child rape.

The defendant, Albert R. Neese, appeals from jury convictions of two counts of aggravated sexual battery and two counts of rape of a child. The defendant also appeals the imposition of consecutive sentences which totaled twenty-eight years. The issues on appeal include challenges to the admissibility of a videotaped interview of the seven-year-old victim, the defendant’s pastor’s report to the police, and the victim’s statement to a social worker for medical diagnosis and treatment. The remaining issues are the propriety of the jury instructions as to the mens rea elements of child rape and the propriety of consecutive sentences. Having found no reversible error, we affirm the judgments of conviction and sentence as imposed.

The petitioner, Willie Johnson, appeals the Madison County Circuit Court’s denial of his petition for post-conviction relief from his conviction of burglary and theft over $500, for which he is serving eight years. He was sentenced to eight years on the burglary conviction and four years for theft, to be served concurrently. The petitioner claims he received ineffective assistance of counsel and argues that his attorney: (1) failed to provide him a list of the grand jurors who indicted him, including their racial make-up; (2) failed to consult him on every peremptory challenge; (3) failed to advise him to testify on his own behalf; (4) failed to persuade him to wear something other than his prison uniform at trial; and (5) failed to fully investigate and interview the witnesses in his case.  After careful review, we conclude that no basis to grant relief exists, and we affirm the postconviction court.

The trial court dismissed Plaintiffs’ cause of action as time-barred under Tennessee Code Annotated §§ 6-51-102(a)(1) & 103.  We affirm.

The issue presented in this priority dispute between a first deed of trust holder and a judgment lien creditor involves the legal effect of the inadvertent and erroneous release of the deed of trust. States Resources Corporation (SRC), Defendant/Appellant, holds two liens on the same real property: one as successor-in-interest to a judgment creditor and the other as assignee of a promissory note for a construction loan, secured by a deed of trust originally held by Trust One Bank. Plaintiff/Appellee Holiday Hospitality Franchising (Holiday) also holds a judgment lien that, in relation to SRC’s filings, was filed last in time. SRC appeals summary judgment entered in favor of Holiday and contends that as assignee of Trust One’s note and first-filed deed of trust, it occupies the most senior lien position, notwithstanding the mistaken release of the deed prior to the assignment. Because Trust One’s release was inadvertent and unintended, and because restoring the deed of trust to its original priority position would not prejudice the rights of Holiday, an intervening judgment lien creditor, we hold that, as a matter of law, the mistaken release should be cancelled in part and the deed as to Lot 30 should be restored to its position as first deed of trust. Accordingly, we reverse and remand.

The petitioner, Michael A. Sullivan, filed an application for habeas corpus relief in the Williamson County Circuit Court to challenge his conviction in the Williamson County General Sessions Court for sixth offense driving on a revoked license. He was sentenced to 11 months, 29 days, with all but 65 days suspended on supervised probation. He contends that Tennessee Rule of Civil Procedure 5(c) and Tennessee Code Annotated sections 40-1-109 and 40-3-101 are unconstitutional and should not allow a defendant to waive an indictment. After careful review of the record, we conclude no grounds exist for granting habeas corpus relief and we affirm the judgment of the trial court.

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 50-6-226(e)(3) for hearing and reporting of findings of fact and conclusions of law. The employer, Aerostructures Corporation, has appealed the trial court’s award of permanent total disability benefits of 539.28 weeks in a reconsideration hearing. The employer asserts that Tennessee Code Annotated sections 50-6-241(a)(2) and (b) and 50-6-242(a) prevent a trial court from granting, in a reconsiderationhearing, any award greater than six times the employee’s medical impairment rating and in excess of 400 weeks. The employer claims that the trial court erred because it granted, in a reconsideration hearing, a permanent total disability award that exceeded such amounts. We disagree and hold that Tennessee Code Annotated sections 50-6-241(a)(2) and (b) and 50-6-242(a), which place limitations on permanent partial disability awards in a reconsideration hearing, do not apply to awards of permanent total disability. We therefore affirm the judgment of the trial court.

Following a jury trial, Defendant, David Marsh, was convicted of two counts of forgery and sentenced to serve three years in the Department of Correction for each offense, to be served concurrently, for an effective sentence of three years. On appeal, Defendant argues that the evidence was insufficient to sustain his convictions for forgery. After a thorough review, the judgments of the trial court are affirmed.

Petitioner, Felix Lopez, pled guilty to manslaughter and received a negotiated out-of-range fifteen-year sentence, to be served at sixty percent. Subsequently, petitioner timely filed a post-conviction petition alleging he received the ineffective assistance of counsel. When the post-conviction court denied post-conviction relief, this appeal followed. After careful review of the record, we affirm the judgment of the post-conviction court.

The petitioner, Richard Hale Austin, was sentenced to death by a Shelby County jury on March 5, 1999. In October 2004, the petitioner’s counsel filed a petition for writ of error coram nobis on the basis of newly discovered evidence in the form of recanted testimony. Without holding an evidentiary hearing, the coram nobis court dismissed the petition, and the petitioner now brings this appeal challenging the action. Upon review, we affirm the judgment of the lower court.

Petitioner, Faris Adb Al-Ali, was convicted by a Rutherford County jury of rape of a child and received a twenty-two year sentence. The conviction and sentence were affirmed on direct appeal. Petitioner timely filed his pro se post-conviction petition. Following the appointment of counsel and filing of an amended petition, the post-conviction court conducted an evidentiary hearing on the petition. On December 1, 2005, the post-conviction court entered an order dismissing the petition. Petitioner appealed. We affirm the post-conviction court.

Aggrieved of the Lauderdale County Circuit Court’s summary dismissal of his petition for habeas corpus relief, the petitioner, John E. Saulsberry, appeals. The habeas corpus court denied the petition, finding that the petitioner’s negotiated plea agreement was valid because “[his] voluntary guilty plea waive[d] any irregularity as to offender classification or release eligibility,” that the petitioner’s sentences had not expired, and that the trial court had jurisdiction to sentence the petitioner. We affirm the lower court’s order of dismissal.

After a decree was entered in a divorce proceeding in Kansas, wife attempted to enforce the decree in Tennessee as it pertains to, inter alia, a division of marital property. The case reached the Supreme Court, and that Court determined that relief sought involved the enforcement of the Kansas decree, and that the decree had not been properly registered and notice given, required by the Uniform Interstate Family Support Act (UIFSA). The case was remanded to the trial court to insure that the registration and notice procedures of UIFSA were followed and that husband be allowed to present defenses thereto. The trial court made a division of the parties' marital property in Tennessee and allowed credit to wife for arrearage of child support decreed by the Kansas court.  Husband has appealed. We affirm.

The Appellants, Steven Thomas Geyer and his wife, Tammy Syvilla Geyer, were convicted by a Hardeman County jury of multiple offenses arising during the drive home from their children’s school Christmas pageant. Appellant Steven Geyer was convicted of DUI, child endangerment, and driving on a suspended license. Appellant Tammy Geyer was convicted of reckless endangerment. On appeal, the Appellants raise three issues for review: (1) whether the trial court  erred by prohibiting the Appellant’s questioning of a witness regarding an obsolete law; (2)  whether the trial court erred in excluding a defense photograph due to the Appellants’ failure to comply with the reciprocal discovery requirements of Rule 16, Tenn. R. Crim. P.; and (3) whether the trial court erred by not filing a written order on a pre-trial Rule 16 discovery motion. After a review of the record, we affirm.

The appellant was convicted following a jury trial of aggravated rape and aggravated sexual battery and received concurrent fifteen and eight year sentences, respectively. The appellant contends that the trial court erred in failing to dismiss these charges based on violation of his right to a speedy trial. Following our review, we affirm the judgment of the trial court.

This is an appeal from the ruling of the Juvenile Court of Shelby County overruling the juvenile Referee’s finding that Appellant’s voluntary acknowledgment of paternity should be set aside under T.C.A. § 24-7-113. Finding that the evidence preponderates against the trial court’s finding concerning fraudulent procurement, we vacate the Order of the trial court and remand for reinstatement of the previous Judgment of the trial court affirming the Referee’s Judgment.

This is a petition to set aside a foreclosure sale. The plaintiffs, husband and wife, borrowed over $1.1 million from the defendant bank in order to buy the subject home. The plaintiffs later defaulted on the loan. The husband filed a petition in bankruptcy and listed the home as a part of his bankruptcy estate. The bank obtained relief from the automatic stay, accelerated the debt, and began foreclosure proceedings. The day before the scheduled foreclosure sale, the wife filed a petition in bankruptcy and listed the home as part of her bankruptcy estate. The foreclosure sale was postponed.  The bank obtained relief from the automatic stay in the wife’s bankruptcy case, and the foreclosure sale was conducted. The bank purchased the home for a credit bid of $750,000. Eight months later, the husband and wife filed this action for injunctive relief and to vacate the foreclosure sale. They alleged, among other things, inadequate consideration and lack of proper notice. The bank filed a motion for summary judgment, which was granted based in part on earlier findings by the bankruptcy court in the plaintiffs’ bankruptcy proceedings. The husband and wife now appeal, again arguing inadequate consideration and lack of notice. We affirm, finding that the plaintiffs failed to proffer sufficient evidence to create a genuine issue of fact for trial.

This appeal is yet another effort to provide the courts with a permissible vehicle for circumventing the legislatively mandated “locality rule” uniquely applicable to medical malpractice cases. Galadriel Basham seeks to hold the trial court in error for using an instruction based on the Tennessee Pattern Jury Instructions. She insists that the trial court should have given a broader instruction equating the nationwide “community” of board-certified emergency room physicians with the geographical concept of “community” plainly embodied in Tenn. Code Ann. § 29-26-115(a)(1) (Supp. 2006).
Ms. Basham cannot make this argument now because she failed to request the trial court to give a broader instruction. Rule v. Empire Gas Corp., 563 S.W.2d 551, 554 (Tenn. 1978) (distinguishing between erroneous instructions and omitted instructions for the purpose of Tenn. R.
Civ. P. 51.02); Jones v. Tenn. Farmers Mut. Ins. Co., 896 S.W.2d 553, 556 (Tenn. Ct. App. 1994).  Parties who failed to take actions reasonably available to them to prevent or

This case involves a divorce ending a five year marriage. Wife/Appellee was awarded a divorce on grounds of Husband/Appellant’s inappropriate marital conduct. The trial court awarded Wife/Appellee alimony in futuro. Husband/Appellant appeals the award of alimony in futuro.  We affirm.