Court of Criminal Appeals Opinions

Format: 02/14/2020
Format: 02/14/2020
State of Tennessee v. Jerry A. Thigpen
M2018-00118-CCA-R3-CD
Authoring Judge: Judge John Everett Williams
Trial Court Judge: Judge Brody N. Kane

The Defendant, Jerry A. Thigpen, was found in contempt of court for four separate acts of publishing online certain materials related to his underlying charge of misdemeanor assault, and he received an aggregate sentence of forty days in jail, with two days suspended. The Defendant appeals, asserting that the evidence was insufficient to support a finding of guilt, that he did not have adequate notice of the charges, that the trial court erred in admitting evidence, that he received ineffective assistance of counsel at the hearing, and that the trial court was obligated to recuse itself. After a thorough review of the record, we affirm the judgments of the trial court.

Trousdale County Court of Criminal Appeals 02/14/20
State of Tennessee v. Gregg T. Merrilees
M2019-01194-CCA-R3-CD
Authoring Judge: Judge Robert L. Holloway, Jr.
Trial Court Judge: Judge David M. Bragg

Gregg T. Merrilees, Defendant, was indicted for aggravated robbery, robbery in concert with two or more persons, and especially aggravated kidnapping. The week prior to trial, the State moved to amend count one to change the theory by which it would prove aggravated robbery. Defendant filed a response stating that he did not consent to amendment and requesting a continuance if the trial court granted the motion to amend. The trial court granted the State’s motion to amend and denied Defendant’s motion to continue. The same week, Defendant moved for a second continuance so that he could employ private counsel rather than appointed counsel, and the trial court denied the motion. Prior to the jury panel being sworn, the trial court issued preliminary jury instructions. Defendant was convicted of aggravated robbery in count one and robbery in concert with two or more persons in count two. He was acquitted of the especially aggravating kidnapping in count three. The trial court merged counts one and two and sentenced Defendant to serve eight years in the Tennessee Department of Correction. On appeal, Defendant argues that the trial court erred by amending the indictment without also granting Defendant a continuance, by denying Defendant’s motion to continue so he could employ private counsel, and by issuing preliminary jury instructions prior to the jury panel being sworn. Defendant also argues that cumulative error requires the granting of a new trial. After a thorough review of the record and applicable case law, we affirm the judgments of the circuit court.

Rutherford County Court of Criminal Appeals 02/14/20
State of Tennessee v. Willie Lee Ballard
E2019-00452-CCA-R3-CD
Authoring Judge: Judge James Curwood Witt, Jr.
Trial Court Judge: Judge Tom Greenholtz

The defendant, Willie Lee Ballard, appeals the revocation of the probationary sentences imposed for his convictions of rape and violating the sex offender registration requirements. Because we discern no error in the ruling of the trial court, we affirm the order of revocation. Because, however, we discern clerical error in the judgment form for case number 277642, the case is remanded for the entry of a corrected judgment.

Hamilton County Court of Criminal Appeals 02/13/20
State of Tennessee v. Ernest Ervin
W2018-01342-CCA-R3-CD
Authoring Judge: Judge Thomas T. Woodall
Trial Court Judge: Judge W. Mark Ward

Defendant, Ernest Ervin, was convicted by a Shelby County jury of burglary of a motor vehicle. The trial court imposed a sentence of six years as a Career Offender to be served in confinement. On appeal, Defendant argues that the trial court erred by admitting surveillance video without sufficient authentication and that the evidence was insufficient to support his conviction. Having reviewed the entire record and the briefs of the parties, we affirm the judgment of the trial court.

Shelby County Court of Criminal Appeals 02/12/20
State of Tennessee v. Atu Campbell
W2019-00380-CCA-R3-CD
Authoring Judge: Judge Camille R. McMullen
Trial Court Judge: Judge Lee V. Coffee

The Defendant-Appellant, Atu Campbell, appeals the trial court’s denial of his motion to withdraw his guilty plea, alleging that his guilty plea was unknowing and involuntary. Because the trial court failed to provide the Defendant with an evidentiary hearing, the State concedes error. Upon our review, we reverse the determination of the trial court and remand for a hearing on the allegations raised in the Defendant’s motion to withdraw his guilty plea.

Shelby County Court of Criminal Appeals 02/12/20
State of Tennessee v. Terence Dewayne Borum
W2019-00666-CCA-R3-CD
Authoring Judge: Judge Robert H. Montgomery, Jr.
Trial Court Judge: Judge Joe H. Walker, III

The Defendant, Terence Dewayne Borum, pleaded guilty to burglary, vandalism, and theft of property valued at more than $500 and after an appeal of the trial court’s initial ten-year sentence on probation received a twelve-year sentence on remand. He filed a motion pursuant to Tennessee Rule of Criminal Procedure 36.1 alleging that his sentence was illegal because the trial court improperly sentenced him as career offender. The trial court summarily dismissed the motion after determining that the sentence was not illegal and that this issue had been determined in a previous appeal. On appeal, he contends that the trial court erred by denying relief because he was improperly sentenced as a career offender. We affirm the judgment of the trial court.

Tipton County Court of Criminal Appeals 02/12/20
State of Tennessee v. Marvin Stinnett
W2019-00097-CCA-R3-CD
Authoring Judge: Judge Alan E. Glenn
Trial Court Judge: Judge Jennifer Johnson Mitchell

The Defendant, Marvin Stinnett, was convicted by a Shelby County Criminal Court jury of two counts of attempted first degree murder, two counts of employment of a firearm during the commission of a dangerous felony, three counts of aggravated assault, one count of reckless endangerment and one count of possession of a firearm by a convicted felon, for which he received an effective sentence of thirty years in the Department of Correction. On appeal, the Defendant challenges the sufficiency of the evidence in support of his convictions for attempted first degree murder, aggravated assault, employment of a firearm during the commission of a dangerous felony, and possession of a firearm by a convicted felon. Following our review, we affirm the judgments of the trial court.

Shelby County Court of Criminal Appeals 02/12/20
State of Tennessee v. Robert Elijah Oxendine
M2019-00288-CCA-R3-CD
Authoring Judge: Judge Robert L. Holloway, Jr.
Trial Court Judge: Judge Michael E. Spitzer

Robert Elijah Oxendine (“Defendant”) pled guilty to two counts of vehicular homicide and one count of improper passing. Following a sentencing hearing, the trial court sentenced Defendant to an effective four-year sentence with one year of incarceration and the balance on probation. Defendant claims that the trial court abused its discretion in sentencing him to split confinement rather than full probation and by using elements of the offense as a factor to enhance the sentence. We affirm the trial court’s imposition of a four-year sentence, but we reverse the court’s imposition of split confinement and remand for entry of amended judgments of conviction placing Defendant on probation.

Perry County Court of Criminal Appeals 02/12/20
State of Tennessee v. Rubalddi Espinoza Yoc
M2018-00585-CCA-R3-CD
Authoring Judge: Judge Timothy L. Easter
Trial Court Judge: Judge Forest A. Durard, Jr.

Defendant, Rubalddi Espinoza Yoc, appeals the revocation of his community corrections sentence and his subsequent resentencing to serve ten years in the Tennessee Department of Correction (“TDOC”). Defendant argues that the original violation warrant was invalid because his detention and deportation by immigration authorities was a civil matter rather than a criminal arrest or conviction; that the trial court abused its discretion in resentencing Defendant; and that he should receive sentencing credit until the date that he conceded a violation of community corrections. Based on our review of the record, we affirm the judgment of the trial court.

Bedford County Court of Criminal Appeals 02/11/20
State of Tennessee v. Nicholas Todd Sutton
E2019-01062-CCA-R3-CD
Authoring Judge: Judge Robert H. Montgomery, Jr.
Trial Court Judge: Judge Jeffery Hill Wicks

The Petitioner, Nicholas Todd Sutton, appeals as of right from the Morgan County Criminal Court’s summary dismissal of his petition for a writ of error coram nobis. On appeal, the Petitioner contends that (1) the evidence of several jurors’ viewing the Petitioner in shackles and handcuffs during his capital trial and sentencing hearing is newly discovered, (2) the Petitioner is without fault for failing to present this evidence previously, (3) equitable tolling of the statute of limitations applies, (4) constitutional considerations require the coram nobis court to address this case on the merits, and (5) the coram nobis court abused its discretion by summarily dismissing the petition. Following our review, we affirm the judgment of the coram nobis court.

Morgan County Court of Criminal Appeals 02/11/20
State of Tennessee v. Raymond Lee Pryor
E2019-00599-CCA-R3-CD
Authoring Judge: Judge Robert H. Montgomery, Jr.
Trial Court Judge: Judge.G. Scott Green

The Defendant, Raymond Lee Pryor, appeals the Knox County Criminal Court’s order revoking his probation for his conviction for attempt to commit second degree murder and ordering him to serve the remainder of his ten-year sentence in confinement. The Defendant contends that the trial court abused its discretion by ordering his sentence into execution. We affirm the judgment of the trial court.

Knox County Court of Criminal Appeals 02/11/20
State of Tennessee v. Karlus Montrezz Branch
M2018-01913-CCA-R3-CD
Authoring Judge: Judge Camille R. McMullen
Trial Court Judge: Judge Angelita Blackshear Dalton

A Davidson County Grand Jury indicted the Defendant-Appellant, Karlus Montrezz Branch, with first-degree premeditated murder, and he was later convicted of the lesser included offense of second-degree murder. The Defendant received an effective sentence of twenty-nine years imprisonment. In this appeal as of right, the Defendant raises the following issues for our review: (1) whether the evidence is sufficient as a matter of law to support the Defendant’s conviction for second degree murder, and (2) whether the Defendant is entitled to plain error review of the trial court’s admissions of statements made by Tierra Braden as excited utterances, and whether these admissions violated the Confrontation Clause. Upon our review, we affirm the judgments of the trial court.

Davidson County Court of Criminal Appeals 02/11/20
Curtis Taylor v. State of Tennessee
W2018-00807-CCA-R3-PC
Authoring Judge: Judge Robert W. Wedemeyer
Trial Court Judge: Judge Glenn I. Wright

A Shelby County jury convicted the Petitioner, Curtis Taylor, of voluntary manslaughter, attempted first degree murder, possession of a firearm after having been convicted of a felony, and use of a firearm during the commission of a dangerous felony. The trial court imposed an effective thirty-five-year sentence. The Petitioner appealed, and this court affirmed the convictions and sentence. See State v. Curtis Taylor, No. W2013-01820-CCA-R3-CD, 2014 WL 4244024 (Tenn. Crim. App., at Jackson, Aug. 7, 2014), perm. app. denied (Tenn. Dec. 18, 2014). The Petitioner filed a post-conviction petition, claiming he received the ineffective assistance of counsel. After a hearing, the postconviction court denied relief. The Petitioner appeals the denial, maintaining that his counsel was ineffective. After review, we affirm the post-conviction court’s judgment.

Shelby County Court of Criminal Appeals 02/10/20
State of Tennessee v. Richard Gleason
W2018-01389-CCA-R3-CD
Authoring Judge: Judge Thomas T. Woodall
Trial Court Judge: Judge Chris Craft

Defendant, Richard Gleason, was indicted by the Shelby County Grand Jury for rape of a child and aggravated sexual battery. Following a jury trial, Defendant was convicted of two counts of aggravated sexual battery. Following a sentencing hearing, the trial court sentenced Defendant to concurrent sentences of 12 years’ imprisonment. Defendant raises ten issues in this appeal as of right. Defendant asserts that: 1) the trial court erred by not requiring the State to provide him a bill of particulars; 2) the trial court erred by not excluding the narrative portion of a medical report admitted as an exhibit; 3) the trial court erred by allowing the victim’s mother to testify about a prior consistent statement of the victim; 4) the trial court erred by not permitting evidence of domestic violence between the victim’s mother and the victim’s mother’s boyfriend; 5) the State made improper statements during closing argument; 6) Defendant’s due process rights were violated by a pre-indictment delay; 7) the State’s election of offenses was overly vague and insufficient; 8) the trial court erred by considering non-statutory factors in sentencing Defendant; 9) the evidence at trial was insufficient to support Defendant’s convictions; and 10) Defendant is entitled to relief for cumulative error. Having reviewed the entire record, we conclude that the trial court erred by admitting into evidence statements made by the victim to her mother. The two times hearsay evidence was admitted were through a medical report and also during the mother’s testimony during trial. The statements should have been excluded as hearsay, and it was error for the trial court to allow the statements. We conclude, however, that both errors were harmless and did not affect the outcome of the trial. Accordingly, we affirm the judgments of the trial court.

Shelby County Court of Criminal Appeals 02/10/20
State of Tennessee v. John Anthony Meyer, III
M2019-00190-CCA-R3-CD
Authoring Judge: Judge Robert W. Wedemeyer
Trial Court Judge: Judge Dee David Gay

Pursuant to a plea agreement, the Defendant, John Anthony Meyer, III, pleaded guilty to theft of property valued at $1,000 or less, in exchange for the dismissal of his remaining indicted counts and an agreed sentence of eleven months twenty-nine days of incarceration. Then Defendant subsequently filed a pro se motion to “modify/vacate sentence,” specifically asking the trial court to “vacate the part of his sentence ordering the forfieture [sic] of $8,000.00 because it was not part of his plea agreement.” The trial court correctly ruled that it was without jurisdiction to hear the motion because the motion was filed more than 30 days after the judgment of conviction became final and, in the interim, the Defendant had filed a notice of appeal with this court. After a thorough review of the record and applicable law, we choose to treat the Defendant’s motion as a timely petition for post-conviction relief, and we remand the case to the trial court for further proceedings consistent with the Tennessee Post-Conviction Procedure Act. T. C. A. § 40-30-101, et seq.

Sumner County Court of Criminal Appeals 02/10/20
State of Tennessee v. Gregory Cook
E2019-00257-CCA-R3-CD
Authoring Judge: Judge J. Ross Dyer
Trial Court Judge: Judge Tammy M. Harrington

The defendant, Gregory Cook, appeals the order of the trial court revoking his probation and ordering him to serve his original
four-year sentence in confinement. Upon review of the record, we conclude the trial court did not abuse its discretion in finding the defendant violated the terms of his probation, and the imposed sentence is proper. Accordingly, the judgment of the trial court is affirmed.

Blount County Court of Criminal Appeals 02/07/20
State of Tennessee v. Javon Jolarry Spivey
M2018-00263-CCA-R3-CD
Authoring Judge: Judge Norma McGee Ogle
Trial Court Judge: Judge Cheryl A. Blackburn

A Davidson County Criminal Court Jury convicted the Appellant, Javon Jolarry Spivey, of first degree premeditated murder, felony murder, attempted first degree murder, especially aggravated burglary, employment of a firearm during the commission of or attempt to commit a dangerous felony, and robbery. After merging the first degree premeditated murder and felony murder convictions, the trial court imposed a total effective sentence of life plus thirty-seven years. On appeal, the Appellant contends that the trial court erred by allowing the State to introduce a video and still photograph of him the police found on YouTube without proper authentication. Upon review, we affirm the judgments of the trial court.

Davidson County Court of Criminal Appeals 02/07/20
Henry Darnell Talley v. State of Tennessee
M2018-01756-CCA-R3-PC
Authoring Judge: Judge Robert W. Wedemeyer
Trial Court Judge: Judge Steve R. Dozier

In 2016, the Petitioner, Henry Darnell Talley, pleaded guilty to attempted first degree murder, reckless aggravated assault, reckless endangerment, being a convicted felon in possession of a weapon, employing a weapon during the commission of a dangerous felony, and violation of a protective order. The trial court imposed an effective sentence of thirty-three years. The Petitioner appealed his sentence as excessive, and this court affirmed. State v. Henry Darnell Talley, No. M2016-01632-CCA-R3-CD, 2017 WL 1830100, at *1 (Tenn. Crim. App., at Nashville, May 5, 2017), perm. app. denied (Tenn. Aug. 16, 2017). In 2017, the Petitioner filed a petition for post-conviction relief alleging ineffective assistance of counsel. Following a hearing, the post-conviction court denied relief. After review, we affirm the post-conviction court’s judgment.

Davidson County Court of Criminal Appeals 02/06/20
State of Tennessee v. Chad Jeremy Kilgore
E2019-00981-CCA-R3-CD
Authoring Judge: Judge Robert W. Wedemeyer
Trial Court Judge: Judge Tammy M. Harrington

The Defendant, Chad Jeremy Kilgore, appeals the trial court’s order imposing confinement after finding a violation of his probation. In December 2016, the Defendant pleaded guilty to two counts of forgery of over $1,000 in exchange for an effective threeyear sentence, suspended, and the trial court placed him on probation for two years and eleven months. In February 2019, a probation violation warrant, the Defendant’s third, was issued alleging multiple violations, including a new arrest. After a hearing, the trial court revoked the Defendant’s probation, ordering him to serve the balance of his sentence in confinement. On appeal, the Defendant asserts that the trial court abused its discretion when it revoked his probation and when it ordered him to confinement. After review, we affirm the trial court’s judgment.

Blount County Court of Criminal Appeals 02/06/20
State of Tennessee v. Whitney S. Phillips
W2019-00553-CCA-R3-CD
Authoring Judge: Judge Camille R. McMullen
Trial Court Judge: Judge Roy B. Morgan, Jr.

In 2018, the Defendant-Appellant, Whitney S. Phillips, entered a guilty plea to several drug related offenses and received an effective sentence of ten years under the supervision of the Community Corrections Program, after service of eleven months and twenty-nine days imprisonment. In 2019, following a hearing, the trial court revoked the Defendant’s community corrections sentence and imposed the original ten-year term of confinement. In this appeal, the Defendant contends that the trial court abused its discretion. Upon review, we affirm.

Madison County Court of Criminal Appeals 02/05/20
Elijah Paul Williams v. Carroll County Sheriff
W2019-00821-CCA-R3-HC
Authoring Judge: Judge Camille R. McMullen
Trial Court Judge: Judge Donald E. Parish

The Petitioner’s father, Paul Williams, appeals on behalf of the Petitioner, Elijah Paul Williams, from the Carroll County Circuit Court’s summary dismissal of his petition for writ of habeas corpus. On appeal, the Petitioner asserts that the habeas corpus court erred in dismissing his petition without the benefit of an evidentiary hearing. Upon review, we affirm.

Carroll County Court of Criminal Appeals 02/05/20
State of Tennessee Tommy Lynn Rutherford
E2019-00063-CCA-R3-CD
Authoring Judge: Judge John Everett Williams
Trial Court Judge: Judge E. Shayne Sexton

The Defendant, Tommy Lynn Rutherford, appeals his convictions for second degree murder and tampering with evidence, for which he received an effective thirty-seven-year sentence. On appeal, the Defendant asserts that the evidence is insufficient to support his conviction for second degree murder and that he is entitled to a new trial due to the short amount of time during which the jury deliberated before returning the guilty verdicts. We affirm the judgments of the trial court.

Union County Court of Criminal Appeals 02/05/20
William Edward Arnold, Jr. v. State of Tennessee
M2018-00710-CCA-R3-PC
Authoring Judge: Judge Camille R. McMullen
Trial Court Judge: Judge Joseph P. Binkley, Jr.

The Petitioner, William Edward Arnold, Jr., appeals from the Davidson County Criminal Court’s denial of post-conviction and error coram nobis relief from his convictions for one count of aggravated sexual battery and three counts of rape of a child, for which he received an effective sentence of twenty-five years. After a careful and laborious review of the entire record, we are compelled to reverse the denial of post-conviction relief. Accordingly, the Petitioner’s convictions and sentences are reversed and vacated, and this case is remanded to the trial court for a new trial and for any necessary pre-trial motions.

Davidson County Court of Criminal Appeals 02/05/20
State of Tennessee v. Edward Spencer III
M2018-02181-CCA-R3-CD
Authoring Judge: Judge J. Ross Dyer
Trial Court Judge: Judge Steve R. Dozier

The defendant, Edward Spencer III, was indicted for one count of aggravated burglary and one count of aggravated assault with a deadly weapon. Following a bench trial, the defendant was convicted of both offenses as charged. The trial court sentenced the defendant as a Range II offender and imposed an eight-year split confinement sentence, with the defendant to serve one year in jail followed by seven years of community corrections. On appeal, the defendant argues the evidence was insufficient to support his convictions. The defendant also contends the sentence of eight years was excessive. After our review, we affirm the judgments of the trial court.

Davidson County Court of Criminal Appeals 02/05/20
State of Tennessee v. William K. Lawrence, Jr.
M2018-01308-CCA-R3-CD
Authoring Judge: Judge Thomas T. Woodall
Trial Court Judge: Judge Cheryl A. Blackburn

Defendant, William K. Lawrence, Jr., was convicted of first-degree murder during the attempt to perpetrate a robbery. The trial court imposed a sentence of life imprisonment. In this appeal as of right, Defendant contends: 1) that the evidence is insufficient to sustain his conviction; 2) that the trial court erred by excluding the testimony of Timothy Harlan; and 3) that the trial court erred by failing to instruct the jury on all lesser-included offenses. Having reviewed the entire record and the briefs of the parties, we affirm the judgment of the trial court.

Davidson County Court of Criminal Appeals 02/05/20