APPELLATE COURT OPINIONS

This case arises from post-divorce proceedings concerning custody of the parties’ minor child.  Mother/Appellant appeals from the order of the trial court granting primary residential custody to Father/Appellee. Specifically, Mother asserts that the trial court erred in disallowing testimony at the hearing. Father also raises an issue concerning whether the trial court erred in not making an award of retroactive child support.  Finding no error, we affirm.

This is a medical malpractice action in which Plaintiff alleges Defendant physician failed to obtain informed consent. The trial court awarded Defendants summary judgment upon finding that Plaintiff’s amended expert affidavit failed to comply with Tennessee Code Annotated § 29-26-115(a)(1) and that Plaintiff had failed to file the amended affidavit by the deadline imposed by the court.  We affirm summary judgment for Defendant under § 29-26-115(a)(1).
 

This appeal results from the trial court’s order granting a Motion to Compel Arbitration. Two doctors, Zachary Rosenberg, M.D. and Dewayne P. Darby, M.D., sued BlueCross BlueShield of Tennessee (“BCBST”) and the Tennessee Healthcare Network alleging breach of contract, seeking class action status, and requesting injunctive relief under the Tennessee Consumer Protection Act.  From the trial court’s order compelling arbitration, the doctors appeal. We affirm.

I concur in the results and most of the reasoning in the majority opinion. In this regard, I view the prosecutor’s improper statements to be a matter of serious concern. I disagree, however, with the opinion’s conclusion that the trial court erred by instructing the jury as to a reckless mental state regarding rape of a child.

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 employer, Sprint Corporation (Sprint), and its insurer, American Casualty Company of Reading, PA., appeal from the trial court’s determination that the claim of the employee, Bobbie Jane T. Hagewood (Hagewood), for benefits relating to a carpal tunnel injury was not barred by the statute of limitations, res judicata, or the last injurious injury rule. Appellee, Second Injury Fund (Fund), joins the statute of limitations argument and further claims that the trial court erred in apportioning the award between Sprint and the Fund. After reviewing the record, we have determined that the evidence does not preponderate against the findings of the trial court concerning the statute of limitations and the last injurious injury rule. We decline to review the res judicata issue because it was not decided by the trial court. We do,
however, find that the trial court erred in its apportionment of the award and modify the award to
reflect the correct apportionment.

This is a direct appeal as of right from convictions on a jury verdict of one count of child rape and two counts of rape. For these convictions, the Defendant, Charles L. Williams, received an effective twenty-two-year sentence in the Tennessee Department of Correction with 100% service required.  On appeal, the Defendant raises six issues: (1) the trial court erred in admitting hearsay testimony of the victim; (2) the evidence was insufficient to support the jury’s finding of guilt beyond a reasonable doubt on the charges of child rape and rape; (3) the trial court erred in allowing the State’s DNA expert witness to speculate about the significance of the ratio of DNA discovered under the Defendant’s fingernails; (4) prosecutorial misconduct requires a new trial; (5) the trial court gave erroneous jury instructions when it stated the elements of child rape could be satisfied by a showing of a mens rea of recklessness; and (6) the trial court erred in failing to merge the lesser rape convictions into the child rape conviction. We have concluded that the trial court erred by allowing certain speculative testimony by the State’s DNA expert witness. We also have concluded that the prosecutor engaged in misconduct during closing argument. In addition, the two rape convictions should have been merged into the child rape conviction. We have determined that the cumulative effect of the trial errors deprived the Defendant of a fair trial. Judge Welles also concludes that the trial court erred by giving erroneous jury instructions for the requisite mens rea. We reverse the convictions and remand for a new trial.

This appeal has been referred to the Special Workers' Compensation Appeal Panel pursuant to Tennessee Code Annotated section 50-6-225(e)(3) for hearing and reporting of findings of fact and conclusions of law. On April 29, 2003, the appellant, Paul J. Simms, fractured his ankle at a construction site in Spring Hill, Tennessee. The trial court determined Mr. Simms' injury did not arise out of or in the course of employment. Mr. Simms has appealed, contending that the evidence preponderates against the trial court's holding. Mr. Simms also alleges the trial court erred in allowing the testimony of Jack Russell, the subcontractor whom Mr. Simms claims employed him on the day of his accident, because Mr. Russell invoked the Fifth Amendment at trial. After carefully considering the evidence adduced at trial, we affirm the trial court's judgment.

The appellant, Anthony Alston, was indicted with possession of more than .5 grams of cocaine with the intent to deliver and felony possession of cocaine. The appellant pled guilty to the charges, but agreed to allow the trial court to determine the length and manner of service of the sentence. After a sentencing hearing, the trial court merged the two convictions and imposed a sentence of nine years for possession with intent to deliver more than .5 grams of cocaine. Further, the trial court ordered the nine-year sentence to run consecutively to a sentence for which the appellant was on Community Corrections at the time of the current offense. The appellant appeals, arguing that the trial court improperly enhanced his sentence. For the following reasons, we affirm the judgment of the trial court.

The Defendant, Robert Lee Hammonds, pled guilty to possession of over 26 grams of cocaine. Pursuant to Tennessee Rule of Criminal Procedure 37, the Defendant reserved four certified questions of law relating to whether the trial court erred when it denied his motion to suppress because the traffic stop and subsequent search were unconstitutional. He contends that the officer exceeded the scope of the stop and that the mandatory blanket consent form that he signed as part of a previous community corrections sentence did not give the arresting officer consent to search his vehicle. Further, he contends that he revoked any consent given by the mandatory blanket consent. Finding no error, we affirm the judgment of the trial court.

This worker's 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 trial court determined the employee, Donald E. Black, Jr. (Black), had sustained a work-related injury resulting in a permanent partial disability amounting to 26% of the body as a whole, and awarded temporary total disability and future medical benefits. The employer, Yates Services, L.L.C. (Yates) has appealed and contends that the trial court erred (1) by allowing Black to present his evidence first at trial, (2) by holding that Black sustained a gradual back injury caused by his employment, and (3) by finding that Black had given adequate notice of his injury to his employer. We affirm the judgment of the trial court

The defendant, Arthur R. Brooks, pled guilty pursuant to a plea agreement in the Knox County Criminal Court to three counts of robbery, a Class C felony. The defendant was sentenced as a Range I, standard offender to six years for each conviction, to be served concurrently, with the trial court to determine the manner of service of the sentences. After a sentencing hearing, the trial court ordered that the defendant serve his sentences in confinement. The defendant appeals, claiming that the trial court erred in denying him alternative sentencing. We affirm the judgments of the trial court.

The majority concludes that there was insufficient evidence that victim Crain was “put in fear.” The majority concludes that Mr. Crain disavowed being “in fear.” I simply disagree. Witness Kevin Young, Mr. Crain’s assistant who came from inside the store, testified that Mr. Crain told him he was being robbed and to call the police, which Mr. Young did. Mr. Crain described how a man jumped into his truck and ordered him to the front of the truck. Mr. Crain described that he was “angry” this was happening to him. He did not like being “backed into a corner at all.” Mr. Crain offered no resistance and somehow exited the truck. Still angry about what was happening, Mr. Crain attempted to close the door and lock the defendant inside. When the defendant saw Mr. Crain’s attempt or “caught him,” the defendant threatened to shoot Mr. Crain. Mr. Crain believed the defendant was armed and saw the defendant reach for his pocket or belt line. Mr. Crain testified “there was too much things going through my mind at the time to actually mentally get a good picture.” Mr. Crain could not identify the defendant.

The petitioner pled guilty to three counts of selling cocaine over .5 grams within 1000 feet of a school. He was also convicted in a jury trial of a fourth count for the same offense. The trial court sentenced the petitioner to fifteen years for each conviction to run concurrently. The petitioner was unsuccessful on his direct appeal and appeal of a certified question. The petitioner timely filed a petition for post-conviction relief arguing that his rights of equal protection were violated. The post-conviction court denied the petition. We affirm the judgment of the post-conviction court.

This is a petition for attorney’s fees in probate. The petitioner attorney was retained to represent the estate in the underlying probate action. After his duties were essentially completed, the representatives of the estate hired new counsel for the estate. The petitioner attorney then filed a petition for attorney’s fees, asserting that there had been an oral contract for 3% of the estate’s assets.  The estate’s representatives objected, contending that there had been no agreement on attorney’s fees, and that the amount of the fee requested was excessive. After a hearing, the trial court determined that the parties had entered into the agreement as asserted by the attorney, and that the fee agreement was reasonable at the time it was made. Therefore, the trial court enforced the fee agreement and entered a judgment in favor of the petitioner. The estate now appeals. We affirm, concluding that the evidence does not preponderate against the trial court’s decision.

The Petitioner, Bradley Copeland, 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 he is entitled to habeas corpus relief because the trial court erred when it re-sentenced him to a longer effective sentence than he received for his original convictions, and that his guilty pleas were constitutionally defective. Finding no reversible error, we affirm the judgment of the habeas court

A Bradley County jury convicted the Defendant of one count of reckless homicide and one count of abuse of a corpse. The trial judge imposed a three year sentence and a one year sentence, respectively, and it ordered the sentences run consecutively. The trial court determined that the Defendant should receive probation on time served for the three year sentence and probation effective immediately for the one year sentence, in part because the Defendant had already spent sixteen months in jail before trial. The State appeals contending the trial court erred in sentencing the Defendant because the trial court mistakenly believed it was required to place the defendant on probation. We agree and reverse the judgment of the trial court.

This is a post-divorce petition to modify child support. When the parties divorced in 1995, the mother was granted custody of the parties’ two children, and the father was ordered to pay child support. The father was self-employed. In 2003, the mother filed the instant petition to increase the father’s child support obligation, alleging that the father’s income had increased since the divorce.  The mother sought to prove the amount of the father’s income by submitting into evidence his bank
statements for the previous three-year period, and calculating from that his average monthly deposits.  In response, the father filed an affidavit stating that he received less monthly income from his various business interests than the mother’s proof indicated. At trial, he relied on his own testimony, the testimony of his accountant, and the gross income reported on his federal income tax returns. After a trial, the trial court found the father’s testimony credible and concluded that the father’s income tax returns were the best evidence of his income. Based on the tax returns, the trial court held that the father’s level of income did not result in a significant variance in his child support obligation and consequently denied the mother’s petition. The mother now appeals. We vacate in part and modify in part, finding that the evidence preponderates against the trial court’s holding that the father’s income tax returns accurately reflected his income, as that term is defined in the Child Support Guidelines, and find a significant variance in his child support obligation based on the father’s pretrial affidavit and his testimony as to his income.

This is a divorce case. After ten years of marr iage, the parties separated. Subsequently, their marital home was destroyed in a fire. The husband then executed a quit claim deed on the home to the wife.  Consequently, the insurance proceeds on the home were paid to the wife, with none distributed to the husband. Both parties then filed for divorce. During the trial, the husband testified that the wife persuaded him to quit claim his interest in the home to her so that she could deal with the insurance company and sell the land on which the home stood. The husband sought a share of the insurance proceeds and the proceeds from the sale of the land. The wife alleged that the husband quit claimed his interest in the home to her as a gift. At the conclusion of the divorce proceedings, the trial court held, inter alia, that the home was a marital asset, despite the existence of the quit claim deed, and granted husband a share of the proceeds from the insurance and the sale of the land. The wife appeals. We affirm, finding that the evidence does not preponderate against the trial court’s conclusion that, by executing the quit claim deed the husband did not intend to make a gift of his interest in the property to the wife.

It is difficult for this member of the Court to believe that husband, who had been married twice before, did not understand the effect of a deed or that he was “duped” by wife into conveying his property. The more likely scenario is that husband was fearful that wife would gain an interest in his business and that he agreed to convey the residential property in exchange for her acquiescence not to seek such an interest.

I join with my colleagues in all respects, save one, I would affirm the sentence as imposed.

A Franklin County Circuit Court jury convicted the appellant, MaryAnn McNeilly, of driving under the influence (DUI), a Class A misdemeanor. The trial court sentenced her to eleven months and twenty-nine days, to be suspended after serving ten days in confinement; imposed a three hundred fifty dollar fine; ordered that she perform one hundred hours of public service; and suspended her driver’s license for one year. On appeal, the appellant claims (1) that the trial court should have suppressed her statement to a police officer; (2) that the trial court improperly allowed the State to replay a videotape of the appellant’s stop for the jury; (3) that the trial court improperly admitted the appellant’s blood test results into evidence because the State failed to establish a proper chain of custody; (4) that the trial court erred by refusing to allow defense witnesses to testify about the appellant’s character; (5) that the evidence is insufficient to support the conviction; (6) that her sentence is excessive; and (7) that these cumulative errors denied the appellant her right to a fair trial.  Upon review of the record and the parties’ briefs, we affirm the appellant’s conviction but modify her sentence to reflect that she is to serve five days in confinement and remand the case for entry of an amended judgment.

The Appellant, Louis Tyrone Robinson, proceeding pro se, presents a Rule 3 appeal from the  Gibson County Circuit Court’s denial of his “Motion to Reopen Post-Conviction Petition.” Robinson seeks post-conviction relief in five separate cases arising from crimes which occurred during a period between August 1989 and October 1992. The post-conviction court denied Robinson’s motion on the following grounds: (1) that the motion failed to present a new claim of constitutional error under the limited circumstances set out in Tennessee Code Annotated section 40-30-117; (2) that no postconviction petition had ever been filed in four of the five cases; (3) that the statute of limitations had expired for post-conviction relief; and (4) that Robinson’s claims had been previously addressed.  Because the Appellant failed to comply with the statutory requirements for appealing the denial of a motion to reopen, this court is without jurisdiction to review the issue. Accordingly, the appeal is dismissed.

The Appellant, Michael Evans, appeals the Shelby County Criminal Court’s dismissal of his petition for post-conviction relief. Evans’ petition was summarily dismissed by the post-conviction court upon grounds that it was time-barred by the statute of limitations. On appeal, Evans contends that application of the statute of limitations in this case serves to deny him his right to due process.  Following review of the record before us, we affirm the dismissal of the petition as it was filed outside the one-year statute of limitations and because Evans has failed to establish any ground which would support a tolling of the statute.

The trial court denied Father’s petition to modify custody of the parties’ child upon finding no material change of circumstances had occurred.  We affirm in part and remand.

The Appellant, Carlos Burris, was convicted by a Madison County jury of misdemeanor possession of cocaine. On appeal, Burris argues that the evidence is insufficient to support the conviction.  After review, we affirm the judgment of conviction.