APPELLATE COURT OPINIONS

State vs. Martin Charles Jones

E1999-01296-CCA-R3-CD
The Appellant, Martin Charles Jones, pled guilty to nine counts of criminal exposure to HIV, class C felonies, and to three counts of statutory rape, class E felonies. Following a sentencing hearing, the Knox County Criminal Court imposed an effective sentence of seventeen years incarceration. On appeal, the Appellant asserts that the trial court erred by denying his request for alternative sentencing. After review, we find no error and affirm the judgment.
Authoring Judge: Judge David G. Hayes
Originating Judge:Ray L. Jenkins
Knox County Court of Criminal Appeals 12/13/00
State vs. Patty Pace Purkey

E2000-00308-CCA-R3-CD
The appellant, Patty Pace Purkey, pled guilty in the Grainger County Criminal Court to one count of vehicular assault, a class D felony, one count of reckless endangerment, a class E felony, three counts of simple possession of a controlled substance, a class A misdemeanor, and one count of driving on a revoked license, a class B misdemeanor. The trial court sentenced the appellant to the following terms of incarceration: three years in the Tennessee Department of Correction for vehicular assault; two years in the Tennessee Department of Correction for reckless endangerment; eleven months and twenty-nine days in the county jail for each of the simple possession convictions; and six months in the county jail for driving on a revoked license. The trial court further ordered that all of the appellant's sentences be served concurrently and assessed a total of $750 in fines. The trial court denied the appellant any form of alternative sentencing. On appeal, the appellant raises the following issue for our review: whether the trial court erred in failing to order probation or another alternative sentence. Upon review of the record and the parties' briefs, we affirm the judgments of the trial court.
Authoring Judge: Judge Norma McGee Ogle
Originating Judge:O. Duane Slone
Grainger County Court of Criminal Appeals 12/13/00
State vs. David Mitchell

E1999-02761-CCA-R3-CD
The defendant, David Calvin Mitchell, appeals the manner of service of his sentence for second offense DUI. Notwithstanding Anderson County's lack of a work release program for jail inmates, he claims that he is statutorily and constitutionally entitled to work release during the mandatory, 45-day period of jail confinement for his crime. Because we hold that the defendant was not statutorily entitled to work release consideration and that there was no equal protection violation, we affirm the judgment of the trial court.
Authoring Judge: Judge J. Curwood Witt, Jr.
Originating Judge:James B. Scott, Jr.
Anderson County Court of Criminal Appeals 12/13/00
State vs. Howard W. Weaver

E2000-00066-CCA-R3-CD
The defendant appeals his convictions of two counts of aggravated sexual battery. He claims that the trial court erred (1) in denying his motion to suppress his statement given to investigators from the Department of Children's Services and sheriff's department, and (2) in failing to require the state to elect the particular offenses upon which it sought convictions. He also claims that the evidence presented at trial is insufficient to support his convictions. Upon review, we accept the state's concession of error in the failure to elect, but we are unpersuaded of merit in the defendant's suppression and sufficiency issues. We reverse the defendant's convictions and remand for a new trial.
Authoring Judge: Judge J. Curwood Witt, Jr.
Originating Judge:E. Eugene Eblen
Roane County Court of Criminal Appeals 12/13/00
State vs. Teresa R. Hodge

E2000-00040-CCA-R3-CD
The defendant appeals the Blount County Circuit Court's determination that her plea-bargained, eleven-month and 29-day effective sentence for theft and possession of cocaine shall be served in confinement, subject to 75 percent of service before the defendant is eligible for rehabilitative programs. The record supports the trial court's determination, and we affirm.
Authoring Judge: Judge J. Curwood Witt, Jr.
Originating Judge:D. Kelly Thomas, Jr.
Blount County Court of Criminal Appeals 12/13/00
State vs. Juliann Whitehead

E2000-00031-CCA-R3-CD
The appellant, Juliann Lynn Whitehead, pled guilty in the Blount County Circuit Court to one count of burglary, a class D felony, and one count of theft under $500, a class A misdemeanor. The trial court sentenced the appellant to four years incarceration in the Tennessee Department of Correction for the burglary conviction and to eleven months and twenty-nine days incarceration in the Blount County Jail for the theft conviction. The trial court ordered that these sentences run concurrently, and allowed the appellant to serve her sentences on intensive probation. During a random drug screen conducted by the appellant's probation officer approximately three months after sentencing, the appellant tested positive for cocaine. Additionally, the appellant admitted to her probation officer that she had left the state without permission. Pursuant to a probation revocation hearing, the trial court revoked the appellant's probation and ordered her to serve the balance of her sentences in the Tennessee Department of Correction and recommended that she be placed into a Special Needs Facility to assist with her substance abuse and mental health problems. On appeal, the appellant raises the following issue for our review: whether the trial court erred in sentencing the appellant to serve the balance of her sentences in the Tennessee Department of Correction after revoking her probation. Upon review of the record and the parties' briefs, we affirm the judgment of the trial court.
Authoring Judge: Judge Norma McGee Ogle
Originating Judge:D. Kelly Thomas, Jr.
Blount County Court of Criminal Appeals 12/13/00
State vs. Gary Russell

E1999-01511-CCA-R3-CD
The appellant pled guilty in the Anderson County Criminal Court to three counts of selling over .5 grams of cocaine. Pursuant to a plea agreement, the trial court imposed concurrent sentences of eight years incarceration in the Tennessee Department of Correction for each conviction. The trial court denied the appellant any form of non-incarcerative alternative sentencing, including probation. On appeal, the appellant challenges the trial court's denial of alternative sentencing. Upon review of the record and the parties' briefs, we affirm the judgments of the trial court.
Authoring Judge: Judge Norma McGee Ogle
Originating Judge:James B. Scott, Jr.
Anderson County Court of Criminal Appeals 12/13/00
Ross Gunter vs. State

E2000-00747-CCA-R3-CD
The petitioner, Ross Gunter, pled guilty in the McMinn County Criminal Court to second degree murder and was ordered to serve one hundred percent (100%) of his fifteen year sentence in confinement. The petitioner filed a petition for post-conviction relief alleging fault in the plea agreement, and the post-conviction court denied relief. On appeal, the petitioner raises the following issues for our review: (1) whether the post-conviction court erred in not granting the petition for post-conviction relief based on the State's breach of the plea agreement, and (2) whether the post-conviction court erred in not granting the petition for post-conviction relief because the petitioner did not knowingly and voluntarily enter a guilty plea. Upon review of the record and the parties' briefs, we affirm the judgment of the post-conviction court.

Originating Judge:Carroll L. Ross
McMinn County Court of Criminal Appeals 12/12/00
Jill Michelle Kaufmann Rabuck v. Robert Lewis Rabuck

E2000-0474-COA-R3-CV

Originating Judge:Frank V. Williams, III
Roane County Court of Appeals 12/12/00
State vs. Carl Preston Durham

E1999-02640-CCA-R3-CD
The defendant, Carl Preston Durham, was indicted for two counts of first degree murder (premeditated and felony), aggravated robbery, and conspiracy to commit aggravated robbery in connection with the murder of the victim, Rene Earl Cabirac, Sr. After a nine-day trial, verdicts of guilt were rendered on all four charges. At the conclusion of the guilt phase of the trial, the trial court merged the defendant's two first degree murder convictions and the jury sentenced the defendant to life imprisonment without the possibility of parole. The trial court found the defendant to be a career offender and imposed a concurrent sentence of 30 years for the aggravated robbery and a consecutive sentence of 15 years for the conspiracy. The effective sentence is, therefore, life without the possibility of parole plus fifteen years. Because there was no prejudicial error, the convictions and sentences are affirmed; however, because the trial court failed to indicate on the judgment form a merger of the felony murder and the premeditated murder, the judgment is modified to reflect a single conviction for first degree murder.
Authoring Judge: Judge Gary R Wade
Originating Judge:Stephen M. Bevil
Hamilton County Court of Criminal Appeals 12/12/00
State vs. Lonnie Turner

M1999-01127-CCA-R3-CD
The defendant appeals from his convictions for first degree felony murder and aggravated rape, for which he received consecutive sentences of life and twenty-two years, respectively. The defendant contests the sufficiency of the evidence, whether certain statements which he made to investigators were taken in violation of his rights, the validity of the search warrant for samples of his hair and blood, certain evidentiary and procedural rulings of the trial court, the ordering of consecutive sentences, and the denial of his motion for a new trial based upon newly discovered evidence. We affirm the judgments of conviction.
Authoring Judge: Presiding Judge Joseph M. Tipton
Originating Judge:James K. Clayton, Jr.
Rutherford County Court of Criminal Appeals 12/12/00
State vs. Michael Wayne Perry

M1999-01832-CCA-R3-CD
The defendant, Michael Wayne Perry, was convicted by a Wilson County jury of second degree murder and first degree felony murder committed during the perpetration of, or attempted perpetration of, rape. The trial court sentenced Defendant to life without parole for the first degree murder conviction, twenty years as a standard Range I offender for the second degree murder conviction, and then merged the two counts into a single conviction for first degree murder. Defendant appeals his convictions and presents the following issues: 1) whether the trial court erred in admitting Defendant's recorded confession; 2) whether the trial court erred in admitting evidence obtained from the vehicle that Defendant drove on the night of the murder; 3) whether the trial court erred in admitting photographs of the victim's body; 4) whether the trial court's instructions to the jury were proper; 5) whether the evidence was sufficient for a rational trier of fact to find Defendant guilty beyond a reasonable doubt; and 6) whether the conduct of law enforcement officials in the case "shocks the conscience." Based upon a careful review, we affirm the judgment of the trial court.
Authoring Judge: Judge Thomas T. Woodall
Originating Judge:J. O. Bond
Wilson County Court of Criminal Appeals 12/12/00
George T. Potter v. Schlegel Finishing, Inc.,

E1999-01808-WC-R3-CV
This workers' compensation appeal has been referred to the Special Workers' Compensation Appeals Panel of the Supreme Court in accordance with Tenn. Code Ann. _ 5-6- 225(e)(3) for hearing and reporting to the Supreme Court of findings of fact and conclusions of law. The plaintiff appeals from the dismissal of his case by way of summaryjudgment and also appeals from the order of the trial court awarding the defendant discretionary costs. The defendant raises as an issue the action of the trial court in considering the affidavit of the plaintiff in determining the summary judgment motion. We reverse the judgment of the trial court and remand the case for further proceedings. Tenn. Code Ann. _ 5-6-225(e) (1999) Appeal as of Right; Judgment of the Circuit Court for Blount County is Reversed and Remanded JOHN K. BYERS, SR. J., in which E. RILEY ANDERSON, C.J. and ROGER E. THAYER, SP. J., joined. Edward M. Graves, Jr, Carl Winkles, and Douglas C. Weinstein, Knoxville, Tennessee, for the appellant, George T. Potter. F. R. Evans, Chattanooga, Tennessee, for the appellees BTR Sealing Systems N. America - Tennessee Operations f/k/a Schlegel Tennessee, Inc., and ACE USA (mis-styled "CIGNA" in the caption). OPINION Facts The plaintiff brought suit to recover for an injury to his back, which he alleges occurred on June 14, 1993. The protracted proceedings in this case resulted in the taking of the plaintiff's deposition, the interrogatories of the plaintiff, the affidavit of the plaintiff, a deposition of a representative of the defendant, the depositions of two doctors, and various other documents which were collected and filed in the record. In the course of taking the plaintiff's deposition and other discovery, it was discovered the plaintiff had suffered a previous back injury that ultimately required surgery; however, when the plaintiff filled out his application for employment with the defendant, he responded "no" to the questions concerning previous work injuries, workers' compensation claims and surgery. Further, he did not reveal the information to the preemployment physician who conducted a physical examination of him on behalf of the defendant. The defendant made a motion for summary judgment in the case. The trial judge granted the motion, ruling: Considering the entire record, the court is of the opinion and finds that the gross misrepresentations of the employee to the employer at the time of hire are unconscionable and that this is a proper case for summary judgment in that (1) the employee knowingly and wilfully made false representations of his physical condition, (2) the employer relied upon the false representations and such reliance was a substantial factor in the decision to hire, and (3) a causal connection exists between the false misrepresentations and the alleged injury suffered by the employee in this case. Discussion The standard of review of a summary judgment order in a worker's compensation case is not de novo upon the record with a presumption of correctness, which is the standard generally applied to such cases in accordance with Tennessee Code Annotated _ 5-6-225(e). Rather, it is governed by Rule 56 of the Tennessee Rules of Civil Procedure, and the judgment of the trial court is not reviewed with a presumption of correctness. In considering a motion for summary judgment, the pleadings and the evidence must be viewed in the light most favorable to the opponent of the motion. Wyatt v. Winnebago Indus. Inc., -2-
Authoring Judge: John K. Byers, Sr. J.
Originating Judge:W. Dale Young, Judge
Knox County Workers Compensation Panel 12/12/00
State of Tennessee v. Clarence L. Currie

W1999-01813-CCA-R3-CD

A jury found the defendant guilty of aggravated assault for shooting a coworker with a handgun during an altercation at their workplace. The trial court sentenced him to five years in the county workhouse, denying his request for probation. The defendant appeals his conviction and sentencing, arguing that the jury's verdict was not supported by the evidence, and that the trial court erred in sentencing him to five years imprisonment. Based upon our review, we conclude that the evidence at trial was sufficient to support the conviction, and that the nature and circumstances of the defendant's offense justifies the sentence imposed. Accordingly, we affirm the judgment of the trial court.

Authoring Judge: Judge Alan E. Glenn
Originating Judge:Judge W. Fred Axley
Shelby County Court of Criminal Appeals 12/12/00
State of Tennessee v. Bobby B. Barrett

W1999-02002-CCA-R3-CD

The defendant was convicted in the Shelby County Criminal Court of rape of a child. In this appeal as of right, the defendant presents two issues, one with subparts: (1) whether the trial court erred in admitting the following: (a) testimony of the sister of the victim concerning a prior bad act of the defendant; (b) testimony of the mother of the victim concerning statements made by the victim to her following the rape; and (c) testimony of the nurse practitioner concerning statements made to her by the victim and his mother; and (2) whether the evidence was sufficient to support his conviction. We conclude that the trial court erred in admitting the testimony of the victim's sister concerning the defendant's sitting her on his lap and asking for a kiss. Nevertheless, we conclude that such error was harmless. The testimony of the mother of the victim was properly admitted pursuant to the excited utterance exception to the hearsay rule. The defendant's failure to timely object to the testimony of the nurse practitioner constitutes a waiver of that issue. We further conclude that the evidence was sufficient to support the defendant's conviction for child rape. The judgment of the trial court is affirmed.

Authoring Judge: Judge Alan E. Glenn
Originating Judge:Judge John P. Colton, Jr.
Shelby County Court of Criminal Appeals 12/12/00
State vs. Carruthers and Montgomery

W1997-00097-SC-DDT-DD
Authoring Judge: Justice Frank F. Drowota, III
Originating Judge:Joseph B. Dailey
Shelby County Supreme Court 12/11/00
State vs. Carruthers and Montgomery

W1997-00097-SC-DDT-DD
Authoring Judge: Justice Frank F. Drowota, III
Originating Judge:Joseph B. Dailey
Shelby County Supreme Court 12/11/00
Bryant vs. Genco Stamping & Mfg. Co., Inc.

M1999-01762-SC-WCM-CV
The sole issue in this case is whether Tennessee Code Annotated section 50-6-208(a) applies to a pre-existing permanent mental disability. The employee suffered a work-related shoulder injury, treatment for which resulted in aggravation of a pre-existing mental disorder. The trial court concluded that the previous mental disability is included within the purview of Tennessee Code Annotated section 50-6-208(a). The court thereby found both the employer and the Second Injury Fund liable for disability benefits. On appeal, the Special Workers' Compensation Appeals Panel reversed the trial court's apportionment of liability to the Second Injury Fund, holding that section -208(a) does not contemplate pre-existing mental disorders. We affirm the judgment of the Special Appeals Panel and find the employer liable for the full amount of benefits due the employee.
Authoring Judge: Justice William M. Barker
Originating Judge:John A. Turnbull
Putnam County Supreme Court 12/11/00
State vs. Scott

M1997-00088-SC-R11-CD
The appellant in this case was arrested and charged with the rape and aggravated sexual battery of a nine-year-old child in Davidson County. Prior to trial, the State conducted various types of DNA analysis on several pieces of evidence, and the appellant, who is indigent, requested state-funded expert assistance in the field of DNA analysis to prepare his defense. The trial court denied the appellant's motion for expert assistance and declined to hold a hearing to establish the reliability of mitochondrial DNA analysis. The trial court also held that the State properly established the chain of custody for certain hairs removed from the victim during her physical examination. The appellant was found guilty by a jury on both charges, and the Court of Criminal Appeals affirmed the convictions and sentences. On appeal to this Court, we address the following issues: (1) whether the appellant was entitled to expert assistance in the field of DNA analysis under State v. Barnett, 909 S.W.2d 423 (Tenn. 1995) and Tennessee Supreme Court Rule 13; (2) whether the trial court erred in failing to hold a pre-trial hearing on the reliability of mitochondrial DNA analysis; and (3) whether the State's failure to establish a chain of custody as to certain hairs retrieved from the victim was error. For the reasons given herein, we hold that although the appellant was not entitled to a pre-trial hearing on the reliability of mitochondrial DNA analysis, he was entitled to receive expert assistance in the field of DNA analysis. We also hold that the State failed to properly establish the chain of custody of the hair samples. We reverse the appellant's convictions and sentences, and we remand this case to the Davidson County Criminal Court for a new trial on both counts of the indictment.
Authoring Judge: Justice William M. Barker
Originating Judge:Cheryl A. Blackburn
Davidson County Supreme Court 12/11/00
Harold W. Ferrell, Sr v. CIGNA Property & Casualty Insurance CO., et al.

M1999-01669-WC-R3-CV

This workers' compensation case presents two issues for review concerning the merits of the employee's claim for benefits. The first is whether this action is barred by the statute of limitations. The second is whether the preponderance of the evidence establishes that the employee's injury was work-related. The trial court ruled that the statute of limitations had expired, and it also addressed the merits and found that the employee failed to prove that his injury was work-related. We hold that the statute of limitations had not expired, and we further hold that the trial court's dismissal of the employee's claim should be affirmed on the merits because the evidence does not preponderate against the trial court's finding that the employee's injury was not work-related. In addition to the merits of this suit, we also granted review to determine the legality of the trial court's practice of referring workers' compensation cases to a clerk and master for trial. We hold that the proper procedure for appointing a special/substitute judge was not followed; however, reversal is not required because the Clerk and Master was acting as a de facto judge.

Authoring Judge: Justice Frank F. Drowota, III
Originating Judge:Clerk and Master Richard McGregor
Warren County Supreme Court 12/08/00
Local Union 760 of the IBEW, et al v. City of Harriman and Harriman Utility Board

E2000-00367-COA-R3-CV

This appeal from the Roane County Chancery Court concerns whether the Chancery Court erred in determining that a collective bargaining agreement entered into between Appellant, Local Union 760 of the International Brotherhood of Electrical Workers, and Appellees, the City of Harriman and the Harriman Utility Board, is null and void. We affirm the decision of the Chancery Court and remand for further proceedings, if any, consistent with this opinion. We adjudge costs of the appeal against the Appellants.

Authoring Judge: Presiding Judge Houston M. Goddard
Originating Judge:Chancellor Frank V. Williams, III
Roane County Court of Appeals 12/08/00
Robert Lafferty, et al., v. City of Winchester, et al.

M1997-00224-COA-R3-CV

This appeal involves a dispute between the owners of a bed and breakfast and the City of Winchester regarding a proposed expansion of the business's bar and banquet facilities. When the city's Board of Zoning Appeals declined to approve the expansion, the owners of the bed and breakfast filed a petition for a common-law writ of certiorari in the Circuit Court for Franklin County challenging the Board's decision. After reviewing the record of the proceedings before the Board, the trial court determined that the Board acted within its discretion when it declined to approve the proposed expansion of the bed and breakfast. We affirm the judgment of the trial court.

Authoring Judge: Judge William C. Koch, Jr.
Originating Judge:Judge J. Curtis Smith
Franklin County Court of Appeals 12/07/00
In re: Stephanie Ann Linville, a Minor

M2000-01097-COA-R3-CV

This appeal arises from the trial court's grant of an award of child support to the appellee, the child's paternal grandmother and legal custodian, from the child's mother. For reasons stated herein, we affirm the judgment of the trial court.

Authoring Judge: Presiding Judge Ben H. Cantrell
Originating Judge:Judge Ben Hall McFarlin, Jr.
Rutherford County Court of Appeals 12/07/00
State of Tennessee v. Jesse C. Goodman, Jr.

M1999-02132-CCA-R3-CD

The defendant, Jesse C. Goodman, Jr., was convicted by a Hickman County jury of one count of aggravated assault, a Class C felony, three counts of reckless endangerment, a Class E felony, and one count of assault, a Class A misdemeanor. All counts arose out of a single incident of domestic violence, with ramifications that included a four-hour standoff between the defendant and five law enforcement officers. The defendant was sentenced as a Range II, multiple offender to nine years for aggravated assault; two years for each of the reckless endangerment convictions; and eleven months and twenty-nine days for assault. The sentences for aggravated assault and reckless endangerment were ordered to be served consecutively, and the misdemeanor conviction was ordered to be served concurrently as to the other sentences, for an effective sentence of fifteen years in confinement. In this appeal as of right, the defendant presents two issues: (1) Whether the evidence was sufficient to convict him of either aggravated assault or assault; and (2) Whether the sentences were appropriate, both as to length of the aggravated assault sentence and the consecutive manner of service of the aggravated assault sentence and the reckless endangerment sentences. We conclude that the convicting evidence was sufficient, both as to the aggravated assault charge and the assault charge. We further conclude that the nine-year sentence for aggravated assault was appropriate, as was the consecutive manner of service of the sentences for aggravated assault and reckless endangerment. The judgment of the trial court is affirmed.

Authoring Judge: Judge Alan E. Glenn
Originating Judge:Judge Timothy L. Easter
Hickman County Court of Criminal Appeals 12/07/00
Gerald M. Reed v. Goodyear Tire and Rubber Company,

W1999-00184-SC-WCM-CV
This case involves injuries sustained to the neck and body as a whole by Gerald Reed on August 8, 1994 while in the employ of Goodyear Tire and Rubber Company. The employee brought suit against the employer and its insurer, The Travelers Insurance Company. The trial court determined that Mr. Reed sustained a compensable work injury and awarded permanent partial disability in the amount of 15% to the body as a whole. The defendant presented one issue on appeal: whether the plaintiff proved by a preponderance of the evidence that his injuries were sustained during the course and scope of his employment. After careful review, we affirm the decision of the trial court.
Authoring Judge: George R. Ellis, Sp. J.
Originating Judge:W. Michael Maloan, Chancellor
Obion County Workers Compensation Panel 12/07/00