APPELLATE COURT OPINIONS

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 Commissioner determined that the employee had suffered a carpal tunnel injury requiring surgery, that notice was excused, and that employee retained a permanent disability to the left third finger of fifty (50%) percent, and the left second finger of thirty (30%) percent. Employee appeals, insisting that the Commissioner erred in not making the permanent disability award to both arms. The employer appeals the finding that notice was excused. We find that the evidence preponderates in favor of the trial court’s finding that notice was excused, but that the evidence preponderates against limiting the disability to the fingers of the left hand for this carpal tunnel injury. Instead, we find the employee has suffered a permanent partial disability to the left arm in the amount of thirty (30%) percent. Judgment of the Claims Commission affirmed in part and modified.

The appellant was discharged from her job by the City of Morristown based upon allegations that she participated in the use, possession, sale and distribution of marijuana in violation of the City's policy against illegal drugs in the workplace. She applied for unemployment benefits and her claim was denied. She appealed the denial of benefits and both the Appeals Tribunal and the Board of Review of the Employment Security Division of the Tennessee Department of Labor and Workforce Development ruled that she was eligible for unemployment benefits because the City failed to prove the alleged illegal drug activity. The trial court reversed the decision of the Board of Review. We hold that the trial court exceeded its authority under the applicable standard of review, and therefore, we reverse the judgment of the trial court and remand.

In a three count indictment returned by the Houston County Grand Jury, Defendant, David A. Langley, was charged with rape of a child in the first two counts and with aggravated assault in count three. Following a jury trial, Defendant was convicted of rape of a child, a Class A felony, in count one; of the lesser included offense of aggravated sexual battery, a Class B felony, in count two; and of reckless endangerment with a deadly weapon, a Class E felony, in count three. Defendant was sentenced as a Range I standard offender to twenty-three years for the rape of a child conviction, ten years for the aggravated sexual battery conviction, and two years for the reckless endangerment conviction. The trial court ordered Defendant's sentence for aggravated sexual battery to be served consecutively to his sentence for rape of a child, and his sentence for reckless endangerment to be served concurrently with his sentence for aggravated sexual battery, for an effective sentence of thirty-three years. On appeal, Defendant argues (1) that the evidence is insufficient to support his convictions; (2) that the trial court's demeanor denied Defendant his due process right to a fair trial; (3) that the trial court erred in not suppressing Defendant's statements which he made on the night he was arrested; (4) that the trial court erred in not granting a mistrial when the State's witnesses made references to Defendant's previous incarceration and offenses; (5) that the State failed to make a proper election of offenses; (6) that the trial court erred in not permitting Defendant to call a certain witness and in limiting Defendant's cross-examination of Officer Chad Smith; (7) that the trial court erred in not allowing Defendant to introduce evidence pursuant to Rule 412 of the Tennessee Rules of Evidence; and (8) that the trial court erred in deferring its ruling of Defendant's motion to suppress the pornographic photographs found on his computer after his arrest. Defendant does not appeal the length or manner of service of his sentences. Following a thorough review of the record, we dismiss Defendant's conviction of felony reckless endangerment and remand for a retrial on count three of Defendant's indictment in accordance with this opinion. We otherwise affirm Defendant's judgments of conviction for rape of a child and aggravated sexual battery.

The petitioner, James R.W. Reynolds, pled guilty to two counts of aggravated rape and was sentenced to concurrent thirty-five year sentences. Subsequently, the petitioner filed a petition for a writ of habeas corpus, alleging that Blakely v. Washington, 542 U.S. __, 124 S. Ct. 2531 (2004), rendered the 1982 Sentencing Reform Act unconstitutional in general and unconstitutional as applied to him specifically. The habeas corpus court summarily denied the petition for a writ of habeas corpus, and the petitioner appeals. Upon our review of the record and the parties’ briefs, we affirm the judgment of the habeas corpus court.

The defendant, Gary Hopper, pled guilty in two separate cases to vehicular assault as the result of intoxication, a Class D felony; reckless aggravated assault, a Class D felony; and leaving the scene of an accident, a Class A misdemeanor, for which he received an effective sentence of seven years, eleven months and twenty-nine days in the county workhouse as a Range II, multiple offender. The sole issue he raises on appeal is whether the trial court should have sentenced him to community corrections instead of incarceration. Following our review, we affirm the judgment of the trial court.

The Shelby County Circuit Court upheld the decision of the Civil Service Merit Board to terminate the employment of Tanya Hollimon. We affirm.

This appeal arises from an action brought by the metropolitan government to collect delinquent property taxes. The taxpayer owned 37.25 acres of property that were zoned commercial but were granted "greenbelt" status. In 1999, the taxpayer leased 1.21 acres of his property to a retail pharmacy, but he did not inform the assessor's office of the change in use of the 1.21 acre portion of his land. In 2000, after the assessor's office learned of the change in use through a review of a building permit summary, the assessor changed the classification on the entire 37.25 acre parcel from "greenbelt" to commercial. As a result, a "rollback" was issued causing taxes to be due on the entire 37.25 acre parcel at a commercial rate for the three previous years. The assessor mailed the taxpayer a 1999 tax bill showing the amount owed due to the rollback. Although the assessor informed the taxpayer that the matter could no longer be corrected through the assessor's office, the taxpayer did not file an administrative appeal or bring a lawsuit to dispute the error in classification and assessment. Following a hearing on the delinquent tax lawsuit, the trial court found that the assessor's office erred in removing the taxpayer's entire parcel from "greenbelt" classification and subjecting the entire parcel to a tax "rollback." The court found that only the 1.21 acre portion of the parcel used for construction of the pharmacy should have lost "greenbelt" status. Additionally, the court found that, because the parties stipulated that no change in use of the property had occurred since the underlying action was initiated, its findings were dispositive not only for tax years 1999 and 2000, but also through the date of the final order, November 26, 2003. The metropolitan government appealed arguing that the taxpayer was barred by statute from contesting the validity of the assessment once the delinquent tax lawsuit was filed. We reverse.

This workers' compensation appeal has been referred to the Special Workers' Compensation Appeals Panel of the Supreme Court in accordance with Tenn. Code Ann. § 50-6-225(e)(3) for hearing and reporting to the Supreme Court of findings of fact and conclusions of law. In this appeal, the employer insists the trial court erred (1) in awarding temporary total disability benefits, (2) in finding the employee suffered an injurybyaccident, and (3) in awarding permanent partial disability benefits based on 25 percent to the body as a whole. As discussed below, the panel has concluded the judgment should modified by omitting the award of temporary total disability benefits.

The petitioner, Horace Demon Pulliam, appeals the dismissal of his petition for post-conviction relief alleging that the post-conviction court erred in finding that he received effective assistance of counsel. After a review of the record, we affirm the judgment of the post-conviction court.

Petitioner, Faron Douglas Pierce, appeals the post-conviction court’s denial of his petition for post-conviction relief in which he alleged the ineffective assistance of counsel at trial when he was convicted of robbery. After a thorough review, we affirm the denial of post-conviction relief.

A Warren County Circuit Court jury convicted the defendant, Jeremiah Ginn, of second degree murder, a Class A felony, and the trial court sentenced him to twenty-four years in the Department of Correction. The defendant appeals, claiming that the evidence was insufficient to support his conviction; that the trial court erred in instructing the jury by referring to statements made by the defendant as “admission against interest;” by not repeating mens rea definitions for lesser included offenses; and by not including a charge on the doctrine of “mutual combat”; that the trial court erred in allowing the state to introduce certain photographs into evidence; and that his sentence is excessive. We affirm the judgment of the trial court.

This is a boundary line dispute. C. W. McMahan (“the plaintiff”) and Barbara Jean Greene (“the defendant”) owned adjacent tracts of land. Both parties received their respective tracts through a complicated chain of title. When a dispute arose as to the location of the boundary line, the plaintiff brought this action seeking to clear title. Following a bench trial, the trial court found for the plaintiff. The defendant appeals. We affirm.

The defendant, Howard Walter Thomas, was convicted of first degree premeditated murder; especially aggravated robbery, a ClassAfelony; especially aggravated kidnapping, a Class A felony; and attempted first degree murder, also a Class A felony. He was sentenced to life imprisonment for the first degree murder conviction and sentenced as a Range I, standard offender to twenty-two years for the especially aggravated robbery conviction, twenty-two years for the especially aggravated kidnapping conviction, and twenty-five years for the attempted first degree murder conviction, with the twenty-two-year sentences to be served concurrently and the twenty-five-year sentence to be served consecutively, for an effective sentence of life plus twenty-five years. On appeal, the defendant raises the following claims: (1) the circumstances surrounding his identification by one of the victims amounted to prejudicial error; (2) the trial court erred by allowing the State to exercise a peremptory challenge based on the juror’s learning disability, by utilizing the pattern jury instructions on the element of deliberation, by proceeding with a death-qualified jury after the State withdrew its intent to seek the death penalty post-trial, and by failing to provide any weight to the mitigating factor of childhood/family background in sentencing for the attempted first degree murder conviction; (3) the evidence was insufficient to support a verdict of guilt with respect to the element of deliberation; (4) the death penalty is unconstitutional under the Tennessee and United States Constitutions; and (5) that cumulative error denied the defendant a fair trial.  Following our review, we affirm the convictions but, in light of the subsequent decision of the United States Supreme Court in Blakely v. Washington, 542 U.S. __, 123 S. Ct. 2531 (2004), reduce the sentences for attempted first degree murder, especially aggravated robbery, and especially aggravated kidnapping to twenty-one years, eighteen years, and eighteen years, respectively. We affirm the consecutive sentencing of the defendant.

The Defendant, Carl McIntosh, was convicted by a jury for: the sale of 0.5 grams or more of cocaine on October 5, 2001, the delivery of 0.5 grams or more of cocaine on October 5, 2001; and two counts of simple possession on October 9, 2001. The trial court sentenced the Defendant as a Range I,
standard offender, to an effective sentence of twelve years, eleven months and twenty-nine days. On appeal, the Defendant contends that: (1) the trial court erred in admitting the forensic chemistry report dated October 31, 2001 into evidence; (2) the trial court erred in ordering his sentences for the current offenses to be served consecutively; (3) the trial court erred in ordering the Defendant’s misdemeanor sentence to run consecutively to his paroled sentences; and (4) the trial court’s enhancement of the Defendant’s misdemeanor and felony sentences beyond the presumptive minimum sentence violated the rule set forth in Blakely v. Washington, ___ U.S. ___, 124 S. Ct. 2531 (2004). After a thorough review of the record, we affirm the Defendant’s convictions and sentences.

The petitioner, Jerry Allen Millsaps, challenged his 1998 Monroe County Criminal Court jury conviction of first degree murder via filing the October 1, 2001 post-conviction relief proceeding now under review. The post-conviction court conducted an evidentiary hearing and dismissed the post-conviction petition. On appeal, the petitioner claims that the conviction was the result of ineffective assistance of counsel and that the post-conviction court erred in dismissing the petition. We disagree and affirm the dismissal.

The defendant pled guilty in the Lincoln County Circuit Court to eleven counts of forgery, eleven counts of transferring a forged instrument, sale of more than .5 grams of cocaine, delivery of more than .5 grams of cocaine, and aggravated perjury. The trial court merged the forgery convictions with the transferring a forged instrument convictions and sentenced the defendant as a Range I, standard offender to one year on each count, to be served concurrently. He was sentenced to ten years for the sale of cocaine conviction, which the trial court merged with the delivery conviction, to be served concurrently with the forgery sentence, and four years for the aggravated perjury conviction, to be served consecutively to the sale of cocaine sentence, for a total effective sentence of fourteen years. On appeal, he alleges the trial court erred in applying several enhancement factors in violation of the recent United States Supreme Court case, Blakely v. Washington, and in not sentencing him to the community corrections program. Following our review, we affirm the sentences but remand for entry of corrected judgments in all three cases to reflect the conviction offenses, which were omitted, and to reflect the correct offense date in Case No. S0300119.

We granted this appeal to determine whether an adult who hosts a party for minors and knows in advance that alcohol will be consumed has or may voluntarily assume a duty of care towards the minor guests. We hold that the defendant adult host had such a duty of care even though he did not furnish any alcohol. We also hold that the trial court did not err in excluding evidence regarding the minor plaintiff’s prior alcohol-related offenses and her prior experience with alcohol and that the trial court did not err in determining that the plaintiff’s sister was not at fault as a matter of law pursuant to Tennessee’s statutory shield for furnishers of alcoholic beverages. The Court of Appeals affirmed the trial court in all respects. We affirm the result reached by the Court of Appeals on the separate grounds set forth herein.

The majority concludes that modification of the defendant’s sentence is required in light of Blakely v. Washington, 542 U.S. __, 124 S. Ct. 2531 (2004). I must respectfully dissent.

The defendant was convicted of theft of property greater than $1,000 but less than $10,000, a Class D felony, and was sentenced as a career offender to twelve years in the Department of Correction.  On appeal, the defendant raises the following issues: (1) whether the evidence was sufficient to sustain his conviction; and (2) whether the trial court erred in granting the State a continuance over the defendant’s motion to dismiss, in not granting the defense a continuance because of a missing witness, in limiting cross-examination of a witness, in denying a continuance due to a witness who was not subpoenaed, in not allowing the testimony of two witnesses at the hearing on the motion for a new trial, and in sentencing the defendant as a career offender. Finding the evidence sufficient to support the conviction and no reversible error, we affirm the judgment of the trial court.

I concur in all parts of the majority opinion except to that portion which holds that the felony sentence imposed in violation of Blakely v. Washington, 542 U.S. ___, 124 S. Ct. 2531 (2004) is harmless error beyond a reasonable doubt.

The Defendant, Carlos Sommerville, was convicted of second degree murder, first degree felony murder, and attempted first degree murder. On appeal, the Defendant contends that: (1) the evidence is insufficient to sustain his convictions; and (2) the trial court erred when it admitted certain autopsy x-rays and photographs into evidence at trial. Finding no error, we affirm the judgments of the trial court.

The appellant, Jason White, was convicted by a jury in the Shelby County Criminal Court of first degree felony murder and sentenced to life imprisonment. On appeal, the appellant contends that (1) the trial court improperly limited the scope of cross-examination of a State’s witness; (2) the trial court erred by admitting gruesome photographs of the deceased victim; (3) the trial court’s improper remarks in the presence of the jury prejudiced the appellant; (4) the trial court erred by admitting hearsay evidence as an excited utterance; and (5) “[t]he form of the jury verdict [was] so lacking in meaning as to render it ineffective to convict the [appellant].” Upon review of the record and the parties’ briefs, we affirm the judgment of the trial court.

On appeal, the defendant challenges (1) the sufficiency of the evidence to support the verdicts, and (2) the trial court’s denial of his request for a mistrial. Following our review, we conclude that the evidence presented was sufficient to support the jury’s verdict and that the trial court did not abuse its discretion in denying the defendant’s request for a mistrial. We affirm the judgments of the trial court.

On appeal, the defendant contends that: (1) the trial court erred in ruling that he could not use his peremptory challenges to “strike back” jurors after the first two rounds of challenges; and (2) the State failed to comply with Tennessee Rule of Criminal Procedure 16, by failing to disclose a letter written by the defendant to his girlfriend, thus disadvantaging his trial preparation. Upon our review, we affirm the defendant’s conviction.