COURT OF CRIMINAL APPEALS OPINIONS

State of Tennessee v. Jeremie Scott Modine
M2022-01183-CCA-R3-CD
Authoring Judge: Judge Timothy L. Easter
Trial Court Judge: Judge Stella L. Hargrove

A Maury County jury convicted Defendant, Jeremie Scott Modine, of one count of rape,
one count of domestic assault, three counts of violating a no-contact order, and two counts
of violating a protective order. Defendant argues on appeal that (1) the trial court
committed plain error in constructively amending the indictment to charge rape by lack of
consent, and (2) that the trial court erred in denying alternative sentencing. After careful
consideration, we hold that the trial court committed plain error in constructively amending
the indictment by instructing the jury on a mode of liability not charged in the indictment.
The trial court did not abuse its discretion in denying alternative sentencing. We therefore
vacate Defendant's rape conviction and remand this matter for a new trial on that count of
the indictment as well as correction of judgment forms as outlined in this opinion.

Tyler Keith Parrish v. State of Tennessee
M2023-01270-CCA-R3-PC
Authoring Judge: Judge Matthew J. Wilson
Trial Court Judge: Judge M. Wyatt Burk

Petitioner, Tyler Keith Parrish, appeals the denial of his post-conviction petition, arguing the post-conviction court erred in finding he received the effective assistance of counsel. After our review of the record, briefs, and applicable law, we affirm the denial of the petition.

State of Tennessee v. Gregory Tyrone Dotson
M2023-00430-CCA-R3-CD
Authoring Judge: Presiding Judge Camille R. McMullen
Trial Court Judge: Judge Angelita Blackshear Dalton

This is an appeal from the order of the trial court revoking a community corrections sentence. On February 18, 2022, the Appellant, Gregory Tyrone Dotson, entered a guilty plea to aggravated assault with a deadly weapon, vandalism, and possession with intent to sell .5 grams or more of a substance containing cocaine, for which he received an effective sentence of ten years to be served on community corrections. Following an evidentiary hearing, the trial court revoked the Appellant’s community corrections sentence based on the preliminary hearing testimony of Able Aguilar, the victim of the aggravated robbery as alleged in the violation warrant, and imposed the original ten-year sentence in confinement. On appeal, the Appellant contends the admission of Aguilar’s preliminary hearing testimony violated his confrontation rights because there was an insufficient showing of good cause or reliability. He additionally argues the trial court erred in considering an offense that was not included in the violation warrant to revoke the Appellant’s community corrections sentence and in ordering complete confinement. After review, we affirm the judgments of the trial court.

Braylen Bennett v. State of Tennessee
E2022-01746-CCA-R3-PC
Authoring Judge: Judge John W. Campbell, Sr.
Trial Court Judge: Judge Steven Wayne Sword

The Petitioner, Braylen Bennett, appeals the denial of his petition for post-conviction relief,
arguing that he was denied the effective assistance of trial counsel, that his guilty pleas
were unknowing, unintelligent, and involuntary, and that the cumulative effect of trial
counsel’s deficiencies in performance warrants post-conviction relief. Based on our
review, we affirm the judgment of the post-conviction court.

State of Tennessee v. Orlando Nichols
W2023-01183-CCA-R3-CD
Authoring Judge: Judge John W. Campbell, Sr.
Trial Court Judge: Judge Lee V. Coffee

The Defendant, Orlando Nichols, was convicted in the Shelby County Criminal Court of especially aggravated kidnapping and aggravated rape, Class A felonies, and received consecutive twenty-five-year sentences to be served at one hundred percent.  On appeal, the Defendant contends that (1) the time delay between the commission of the offenses and the issuance of the indictment violated his right to due process; (2) his effective fifty-year sentence is excessive; and (3) the evidence is insufficient to support his convictions.  Upon review, we affirm the judgments of the trial court.

State of Tennessee v. Talvin D. Armstrong
M2022-01164-CCA-R3-CD
Authoring Judge: Judge Matthew J. Wilson
Trial Court Judge: Judge Stella L. Hargrove

A Maury County jury found Defendant, Talvin D. Armstrong, guilty of one count of possession of 0.5 grams or more of cocaine with intent to sell and one count of possession of drug paraphernalia. The trial court imposed an effective sentence of fifteen years in the Tennessee Department of Correction (TDOC). On appeal, Defendant argues that: (1) he was coerced into waiving his confrontation rights as to two witnesses who contracted COVID-19 and were permitted to testify at trial remotely; (2) the trial court erred in introducing the affidavit of complaint supporting the search warrant for the house where the drugs and paraphernalia were found; and (3) he was entitled to a mistrial based on a witness’s reference to the Department of Probation and Parole. 1 After review, we affirm the judgments of the trial court.

State of Tennessee v. Anthony Jared Ross
E2023-00381-CCA-R3-CD
Authoring Judge: Judge Tom Greenholtz
Trial Court Judge: Judge Rex H. Ogle

The Defendant, Anthony Jared Ross, pled guilty to one count of carjacking, and after a sentencing hearing, the trial court sentenced him to serve a term of nine years and to pay restitution. On appeal, the Defendant argues that the trial court erred in imposing a sentence without having or considering the results of a validated risk and needs assessment as required by Tennessee Code Annotated section 40-35-210(b). Our review reveals that the General Assembly has mandated that a sentence must be based, in part, upon the risk and needs assessment. Because this required sentencing information was never prepared, and consequently not considered by the court and the parties, we respectfully remand this case for resentencing. We also remand the case for entry of a judgment reflecting the appropriate disposition of other charges.

State of Tennessee v. Anthony Jared Ross
E2023-00381-CCA-R3-CD
Authoring Judge: Judge Robert H. Montgomery, Jr.
Trial Court Judge: Judge Rex H. Ogle

I dissent from the majority’s conclusion that the case must be remanded for
resentencing on the basis that the record fails to reflect that the trial court considered a
validated risk and needs assessment (“RNA”). The majority concludes from the parties’
arguments and from the absence of an RNA in the appellate record that no RNA was
prepared and, therefore, that the trial court did not consider one. See T.R.A.P. 13(c)
(limiting an appellate court to consideration of those facts which appear in the record or
are within the parameters of certain post-judgment facts of which the court may take
judicial notice pursuant to T.R.A.P. 14); Threadgill v. Board of Prof’l Resp., 299 S.W.3d
792, 812 (Tenn. 2009) (stating that allegations in pleadings or a party’s brief are not
evidence that is before an appellate court for review), overruled on other grounds by
Lockett v. Board of Prof’l Resp., 380 S.W.3d 19, 28 (Tenn. 2012); State v. Draper, 800
S.W.2d 489, 493 (Tenn. Crim. App. 1990); State v. Roberts, 755 S.W.2d 833, 836 (Tenn.
Crim. App. 1988). As the majority has observed, the Defendant did not object to the trial
court’s sentencing the Defendant in the purported absence of an RNA at sentencing.

Terrance Reece v. State of Tennessee
E2023-00305-CCA-R3-PC
Authoring Judge: Judge Robert H. Montgomery, Jr.
Trial Court Judge: Judge Steven Wayne Sword

The Petitioner, Terrance Reece, appeals from the Knox County Criminal Court’s denial of
post-conviction relief from his convictions for four counts of weapons violations, three
counts of aggravated assault, and one count of vandalism and his effective twenty-two-year
sentence. On appeal, the Petitioner contends that the post-conviction court erred by
denying relief on his ineffective assistance of counsel claims and that he was prejudiced by
the cumulative effect of counsel’s multiple instances of deficient performance. We reverse
the judgment of the post-conviction court and remand this case for a new trial.

State of Tennessee v. Mykhah Calvin Simon
M2023-00814-CCA-R3-CD
Authoring Judge: Judge Kyle A. Hixson
Trial Court Judge: Judge Forest A. Durard, Jr.

The Defendant, Mykhah Calvin Simon, appeals his convictions for possession of one-half gram or more of methamphetamine with intent to sell and deliver, possession of less than one-half gram of fentanyl with intent to sell and deliver, and driving on a suspended license, second offense. On appeal, the Defendant argues that (1) the evidence was insufficient to sustain his convictions and (2) his sentence was excessive. Following our review, we affirm the judgments of the trial court.

State of Tennessee v. Rickey Na'Tarius Porter
E2023-00876-CCA-R3-CD
Authoring Judge: Judge Timothy L. Easter
Trial Court Judge: Judge Andrew Freiberg

Defendant, Rickey Na’Tarius Porter, appeals the consecutive six-year sentences he
received after pleading guilty to one count of aggravated burglary, two counts of
aggravated assault, and one count of employment of a firearm during the commission of a
dangerous felony. Because the trial court improperly sentenced Defendant to the maximum
sentence in the range on each offense as an especially mitigated offender, we reverse the
judgments of the trial court and remand for resentencing.

State of Tennessee v. Brady O'Brien Holmgren
M2023-00795-CCA-R3-CD
Authoring Judge: Judge Tom Greenholtz
Trial Court Judge: Judge James A. Turner

The trial court furloughed the Defendant, Brady O’Brien Holmgren, to a mental health court program following his convictions for domestic assault and aggravated assault. The furlough was later revoked, and he was ordered to serve his sentence. Nearly a year later, the Defendant filed a motion to modify his sentence. The trial court denied the motion, and the Defendant appealed. Upon our review, we hold that the Defendant has waived any issues by failing to properly prepare his brief in accordance with Tennessee Rule of Appellate Procedure 27. Accordingly, we respectfully affirm the trial court’s judgment.

State of Tennessee v. Emily Ashton Williams and Joel Scott Sweeney
M2023-00606-CCA-R3-CD
Authoring Judge: Judge James Curwood Witt, Jr.
Trial Court Judge: Judge Jennifer Smith

In this consolidated appeal, the defendants, Emily Ashton Williams and Joel Scott
Sweeney, appeal their Davidson County Criminal Court jury convictions of aggravated
child neglect. Defendant Sweeney argues that the evidence was insufficient to support his
conviction, that the trial court committed plain error by failing to require the State to make
an election of offenses, and that the trial court erred in sentencing him. Defendant Williams
argues that the evidence was insufficient to support her conviction. Discerning no
reversible error, we affirm.

Brian C. Frelix v. State of Tennessee
M2023-00291-CCA-R3-PC
Authoring Judge: Judge Robert L. Holloway, Jr
Trial Court Judge: Judge Joseph A. Woodruff

Petitioner, Brian C. Frelix, appeals from the Williamson County Circuit Court’s denial of his petition for post-conviction relief related to his convictions for four counts of aggravated robbery, four counts of aggravated assault, one count of aggravated burglary, and one count of theft of property valued at $1,000 or more, but less than $10,000.  Petitioner argues that the post-conviction court erred in denying relief based upon his claims that he received ineffective assistance of counsel because trial counsel failed to (1) raise a Double Jeopardy issue at trial or on direct appeal related to two of his aggravated robbery charges; and (2) raise a Brady issue on direct appeal related to the State’s failure to disclose three letters sent to the police by a jailhouse informant.  Petitioner also raises a freestanding claim that the State improperly withheld the letters in violation of Brady v. Maryland, 373 U.S. 83 (1963).  After a thorough review of the record, we affirm the judgment of the post-conviction court.

State of Tennessee v. Aaron Michael King
E2021-01375-CCA-R3-CD
Authoring Judge: Judge Kyle A. Hixson
Trial Court Judge: Judge G. Scott Green

The Defendant, Aaron Michael King, appeals his jury convictions for rape, rape of a child, statutory rape by an authority figure, incest, aggravated sexual battery, especially aggravated sexual exploitation of a minor, tampering with evidence, especially aggravated kidnapping, and aggravated kidnapping. For these convictions, he received an effective seventy-seven-year sentence. On appeal, the Defendant argues that (1) there was insufficient evidence to support his kidnapping convictions because they were merely incidental to the contemporaneous rapes; (2) the trial court erred by failing to grant his motion for a mistrial after a State’s witness impermissibly vouched for the victim’s credibility; (3) the trial court erred by failing to grant his motion for new trial where defense counsel, who was acting as treasurer for the prosecuting assistant district attorney general’s campaign for a general sessions court judgeship during the Defendant’s trial, had an impermissible conflict of interest; and (4) the cumulative effect of these errors entitle him to a new trial. After our review, we conclude that sufficient evidence supports the challenged convictions, that the trial court properly denied a mistrial, and that the Defendant is not entitled to relief pursuant to the cumulative error doctrine. We further conclude that no adverse effect resulted from the improper conflict of interest. We affirm the judgments of the trial court.

Lindsey Brooke Lowe v. State of Tennessee
M2022-01490-CCA-R3-PC
Authoring Judge: Judge Timothy L. Easter
Trial Court Judge: Judge Dee David Gay

Petitioner, Lindsay Lowe, was convicted by a Sumner County jury of two counts of first
degree murder and two counts of aggravated child abuse for killing her newborn twin sons
shortly after their birth at her parents’ home and concealing their bodies in a laundry basket.
State v. Lowe, 552 S.W.3d 842, 846-48 (Tenn. 2018), cert. denied, 139 S. Ct. 1204 (2019).
Her convictions and resulting life sentence were affirmed on direct appeal, and the
Tennessee Supreme Court affirmed. Id. Petitioner unsuccessfully sought rehearing.
Petitioner then sought a writ of certiorari in the United States Supreme Court, which was
denied. Id. Petitioner ultimately filed an untimely petition for post-conviction relief in
which she made innumerable allegations of ineffective assistance of counsel as well as
several constitutional violations that she argued necessitated reversal of her convictions.
Petitioner also requested due process tolling of the post-conviction statute of limitations
based on erroneous legal advice about when the statute of limitations commenced.1 The
post-conviction court determined due process tolling was warranted and permitted
Petitioner to have a lengthy hearing on the merits of the post-conviction petition. After the
hearing, the post-conviction court granted post-conviction relief on the basis that a juror
was presumptively biased against Petitioner, violating her right to a fair trial, and that trial
counsel’s failure to remove the juror violated Petitioner’s right to effective assistance of
counsel. The post-conviction court did not address the merits of any of the remaining
claims in the petition. In this timely State appeal, we determine first that the postconviction
court improperly granted due process tolling of the statute of limitations for
post-conviction relief. Additionally, because the post-conviction court went on to grant
post-conviction relief, we review those findings of fact and conclusions of law and
determine that the post-conviction court also erred in finding that the juror was
presumptively biased and that trial counsel was ineffective. As a result, we reverse and
remand the judgment of the post-conviction court. All of Petitioner’s convictions are
reinstated and her petition for post-conviction relief is dismissed.

State of Tennessee v. Aaron Michael King
E2021-01375-CCA-R3-CD
Authoring Judge: Judge Robert H. Montgomery, Jr.
Trial Court Judge: Judge G. Scott Green

I join in the majority in concluding that the evidence is sufficient to support the
Defendant’s kidnapping convictions and that the trial court did not err in denying the
motion for a mistrial. However, I part ways with the majority’s analysis and conclusion
regarding the court’s denial of a new trial based upon defense counsel’s personal,
concurrent conflict of interests. For the reasons that follow, I conclude that the record fails
to support a conclusion that the Defendant was assured his constitutional right to a fair trial
and that due process requires that he receive a new trial. See U.S. Const. amends. VI
(guaranteeing a criminal defendant’s right to counsel), XIV, §1 (no State shall “deprive
any person of life, liberty, or property, without due process of law”); Tenn. Const. art. 1,
§§ 6 (guaranteeing a criminal defendant’s right to a jury trial), 9 (rights of a criminal
defendant); Strickland v. Washington, 466 U.S. 668, 684-85 (1984) (stating that the right
to counsel exists to protect a criminal defendant’s fundamental right to a fair trial, which
is rooted in the Due Process Clause); see also Smith v. State, 357 S.W.3d 322 , 336 (Tenn.
2011).

State of Tennessee v. Hayden Jennings Berkebile
E2022-01700-CCA-R3-CD
Authoring Judge: Judge Timothy L. Easter
Trial Court Judge: Judge Steven Wayne Sword

In this case of first impression, we consider whether a defendant can be convicted of
criminally negligent homicide when he incites, encourages or coerces another person to
commit suicide and whether the State of Tennessee has territorial jurisdiction over a
defendant when he affirmatively reaches out to Tennessee via electronic means. A Knox
County jury convicted Defendant, Hayden Jennings Berkebile, of criminally negligent
homicide after the victim, Grace Anne Sparks, shot and killed herself for Defendant’s
sexual pleasure while on a video call with Defendant. Defendant argues on appeal that: (1)
the evidence is insufficient to support his conviction because (a) the State did not prove
that Defendant’s actions were the proximate cause of the victim’s death, and (b) the
negligent homicide statute as construed here violates the First Amendment to the United
States Constitution; (2) the State did not establish territorial jurisdiction over Defendant
because he was in Indiana at the time of the victim’s death and only communicated with
her electronically; (3) the trial court erred in admitting an alleged hearsay statement by the
investigator; (4) the trial court erred in allowing the jury to utilize a transcript of
Defendant’s interrogation that contained inaccurate transcriptions; (5) cumulative error
requires a new trial; and (6) the trial court erred in denying judicial diversion because it
relied on evidence not in the record. After reviewing the parties’ briefs and oral arguments,
the record, and the relevant law, we affirm in all respects.

State of Tennessee v. Hayden Jennings Berkebile
E2022-01700-CCA-R3-CD
Authoring Judge: Judge Camille R. McMullen
Trial Court Judge: Judge Steven Wayne Sword

In this case, the State relied exclusively upon online communications sent between
the Defendant, who resided in Indiana, and the suicide decedent, who resided in Tennessee,
to establish a conviction of criminally negligent homicide. In my view, the State failed to
establish the essential elements of territorial jurisdiction and proximate cause. No matter
how “dark” or “diabolical” the online communications leading up to the decedent’s death
may have been, there is simply no law in Tennessee making it a crime to verbally persuade
or coerce someone to commit suicide.1 Because Tennessee has yet to criminalize
incitement, inducement, or encouragement to commit suicide, words alone cannot serve as
the basis for a criminal conviction.2 Accordingly, I must respectfully dissent

State of Tennessee v. Jonathan E. Woodruff
W2023-01446-CCA-R3-CD
Authoring Judge: Judge Tom Greenholtz
Trial Court Judge: Judge Joseph T. Howell

The Defendant, Jonathan E. Woodruff, pled guilty to the offense of tampering with evidence. The trial court imposed a five-year sentence to be served in a community corrections program and later on probation. Thereafter, the Defendant was alleged to have engaged in new criminal conduct by possessing fentanyl, and following a hearing, the trial court fully revoked the Defendant’s suspended sentence. In this appeal, the Defendant argues that a violation was not established by a preponderance of the evidence and that he was denied the opportunity to review a video of the alleged misconduct. Upon our review, we respectfully disagree and affirm the judgment of the trial court.

State of Tennessee v. Edward Honeycutt, Jr.
E2023-00908-CCA-R3-CD
Authoring Judge: Judge Robert W. Wedemeyer
Trial Court Judge: Judge Zachary R. Walden

The Defendant, Edward Honeycutt, Jr., pleaded guilty to one count of initiating the process to manufacture
methamphetamine and two counts of child endangerment, in exchange for an effective eight-year sentence,
suspended to ten years of probation, after service of sixty-one days in confinement. After multiple violations
and revocation hearings, the trial court revoked the Defendant’s probation sentence and ordered it into
execution, granting “street time” credit from October 25, 2021 to May 6, 2022. The Defendant filed a Rule 36
motion, claiming “clerical mistakes in the judgment orders” related to whether the Defendant’s sentence was a
probation sentence or a sentence served on community corrections. The Defendant argued that he was
entitled to time served in community corrections from September 4, 2012, rather than October 25, 2021,
because his sentence was a community corrections sentence. The trial court denied the motion, and the
Defendant appeals, maintaining that he has been deprived of time served in community corrections. After
review of the record, we affirm the trial court’s judgment.

State of Tennessee v. Alysha J. Barr
M2023-00581-CCA-R3-CD
Authoring Judge: Presiding Judge Camille R. McMullen
Trial Court Judge: Judge James A. Turner

The Appellant, Alysha J. Barr, was convicted of vehicular assault, driving under the influence (“DUI”), and reckless endangerment with a deadly weapon.  On appeal, she argues that the trial court erred by denying her motion to suppress evidence resulting from a blood draw at the scene of the collision because: (1) it was obtained pursuant to an unconstitutional search; and (2) she did not sign the waiver form as statutorily required at the time of the offense.  Tenn. Code Ann. § 55-10-406 (2017) (amended 2019).  She also argues that the trial court erred by admitting expert testimony based on an untrustworthy experiment.  After review, we conclude that no reversible error occurred and affirm the trial court’s judgments.

State of Tennessee v. Christopher C. White
M2023-00964-CCA-R3-CD
Authoring Judge: Judge Matthew J. Wilson
Trial Court Judge: Judge David D. Wolfe

After a bench trial, Defendant, Christopher C. White, was found guilty of one count of theft valued at $10,000 or more but less than $60,000. The trial court imposed a four-year sentence, suspended to probation, and ordered Defendant to pay $10,228 in restitution. On appeal, Defendant argues (1) the evidence was insufficient to support his conviction; (2) this court lacks subject matter jurisdiction to consider Defendant’s appeal; and (3) collateral estoppel required the trial court to dismiss the case. After review, we conclude the evidence is insufficient to support Defendant’s conviction for theft. Accordingly, we reverse the judgment of the trial court, vacate Defendant’s conviction, and dismiss the case.

State of Tennessee v. Tory Keith Mote
M2023-00959-CCA-R3-CD
Authoring Judge: Judge Timothy L. Easter
Trial Court Judge: Judge Robert T. Bateman

Tory Keith Mote, Defendant, appeals his convictions for aggravated assault, domestic
assault, and interference with a 911 call after a bench trial. On appeal, Defendant argues
that the evidence was insufficient to support the conviction for aggravated assault. Because
the evidence was sufficient, we affirm the judgments of the trial court.

Charles Thomas Jonhson v. State of Tennessee
M2023-00049-CCA-R3-PC
Authoring Judge: Judge J. Ross Dyer
Trial Court Judge: Judge Forest A. Durard, Jr.

The petitioner, Charles Thomas Johnson, appeals the denial of his post-conviction petition, arguing the post-conviction court erred in finding he received the effective assistance of counsel. Following a thorough review of the record, the briefs, and oral arguments of the parties, we affirm the judgment of the post-conviction court.