Court of Criminal Appeals Opinions

Format: 07/31/2014
Format: 07/31/2014
Eric Vislosky v. State of Tennessee
E2013-01117-CCA-R3-PC
Authoring Judge: Judge Alan E. Glenn
Trial Court Judge: Judge Amy A. Reedy

The petitioner, Eric Vislosky, appeals the denial of his petition for post-conviction relief, arguing that he received ineffective assistance of trial counsel and that his guilty plea to Class B sexual exploitation of a minor was therefore unknowing and involuntary. Following our review, we affirm the denial of the petition.

Bradley County Court of Criminal Appeals 07/31/14
State of Tennessee v. Jessica Kennedy
E2013-00260-CCA-R3-CD
Authoring Judge: Judge Joseph M. Tipton
Trial Court Judge: Judge Walter C. Kurtz

The Defendant, Jessica Kennedy, was convicted by a Monroe County Criminal Court jury of facilitation of felony murder, a Class A felony, facilitation of aggravated robbery, a Class C felony, facilitation of burning personal property, a Class A misdemeanor, and facilitation of abuse of a corpse, a Class A misdemeanor. See T.C.A. §§ 39-13-202, 39-13-402, 39-14-303, 13-17-312, 39-11-402, 39-11-403 (2010). The trial court sentenced the Defendant as a Range I, standard offender to concurrent sentences of twenty-two years for facilitation of felony murder, five years for facilitation of aggravated robbery, eleven months, twenty-nine days for facilitation of burning personal property, and eleven months, twenty-nine days for facilitation of abuse of a corpse. On appeal, she contends that (1) the evidence is insufficient to support her convictions, (2) the trial court erred by denying her motion for a judgment of acquittal, (3) the trial court erred by denying her motion to suppress, (4) the trial court erred by failing to grant a mistrial related to the testimony of Tennessee Bureau of Investigation (TBI) Special Agent Barry Brakebill, (5) the trial court erred by permitting the State to call witnesses not listed on the indictment, (6) the trial court erred by making improper statements related to her recorded police interview and by failing to grant a mistrial, (7) the trial court erred by limiting the testimony of a psychologist, (8) the trial court erred by denying her ex parte motion for funds to secure an expert, (9) the trial court erred by overruling her motions to dismiss and to disqualify the prosecutor and the district attorney general’s office, and (10) the trial court erred by misapplying mitigating and enhancement factors during sentencing. We affirm the judgments of the trial court.

Monroe County Court of Criminal Appeals 07/30/14
Eugene Mark Hogbin v. State of Tennessee
M2014-00085-CCA-R3-PC
Authoring Judge: Judge Roger A. Page
Trial Court Judge: Judge Robert E. Burch

Petitioner, Eugene Mark Hogbin, was convicted of two counts of aggravated sexual battery and sentenced to an effective sentence of twenty years.  Petitioner filed the instant petition for post-conviction relief, in which he alleged that he received ineffective assistance of counsel.  Following an evidentiary hearing, the post-conviction court denied relief.  On appeal, petitioner argues that he received ineffective assistance of counsel when trial counsel told petitioner that she would win his case at trial.  After our review of the parties’ briefs, the record, and the applicable law, we affirm the judgment of the post-conviction court.

Cheatham County Court of Criminal Appeals 07/30/14
Tiffany Davis v. Brenda Jones, Warden
M2014-00386-CCA-R3-HC
Authoring Judge: Judge James Curwood Witt, Jr.
Trial Court Judge: Judge Forest A. Durard

The petitioner, Tiffany Davis, appeals the Marshall County Circuit Court’s dismissal of her petition for writ of habeas corpus.  In the petition, she challenged her Marshall County drug convictions, which had resulted in an effective sentence of 30 years in the Department of Correction.  Because we agree with the habeas corpus court that the petitioner’s claims of double jeopardy violations and ineffective assistance of counsel do not render her convictions void, we affirm that court’s dismissal of the petition.

Marshall County Court of Criminal Appeals 07/30/14
Cyrus Deville Wilson v. State of Tennessee
M2013-01807-CCA-R3-CO
Authoring Judge: Judge John Everett Williams
Trial Court Judge: Judge Seth Norman

The petitioner, Cyrus Deville Wilson, appeals the denial of his petition for the writ of error coram nobis.  The petitioner is currently serving a life sentence following his conviction for first degree murder.  In his petition, the petitioner contended that he was entitled to relief because of recently recanted testimony by an eyewitness to the murder.  The error coram nobis court concluded that the recantation was not credible and denied relief.  On appeal, the petitioner contends that the court erred in denying relief because it improperly assessed the evidence presented and applied an incorrect legal standard.  After a review of the record, we affirm.

Davidson County Court of Criminal Appeals 07/30/14
State of Tennessee v. Demontre Chavez Brown
M2013-02091-CCA-R3-CD
Authoring Judge: Judge D. Kelly Thomas, Jr.
Trial Court Judge: Judge Lee Russell

In this appeal, the Defendant, Demontre Chavez Brown, challenges his conviction for aggravated robbery, a Class B felony, and subsequent sentence of twelve years’ incarceration. Specifically, he alleges that (1) the evidence was insufficient to support his conviction because the witnesses’ testimonies had material inconsistencies and his co-defendant’s testimony was inadequately corroborated; (2) the trial court improperly allowed his co-defendant to testify because the State did not provide him with sufficient notice of such; and (3) the trial court’s imposition of the maximum sentence was excessive because the Defendant’s record contained mostly petty juvenile offenses. Upon consideration of the record and relevant case law, we affirm the judgment of the trial court.

Bedford County Court of Criminal Appeals 07/30/14
Milton L. Kirk Jr. v. State of Tennessee
W2013-00544-CCA-R3-PC
Authoring Judge: Special Judge Jeffrey S. Bivins
Trial Court Judge: Senior Judge Don R. Ash

Milton L. Kirk, Jr., (“the Petitioner”) was convicted by a jury of sale of .5 grams or more of cocaine. The Petitioner then pleaded guilty to tampering with evidence and possession with intent to sell or deliver cocaine. The trial court sentenced the Petitioner to an effective sentence of sixteen years’ incarceration. The Petitioner subsequently filed for postconviction relief, which the post-conviction court denied following an evidentiary hearing. The Petitioner now appeals, arguing that he received ineffective assistance of counsel at trial and that his guilty plea was constitutionally invalid. Upon our thorough review of the record and the applicable law, we affirm the judgment of the post-conviction court.

Dyer County Court of Criminal Appeals 07/29/14
Christopher Scott Chapman v. Henry Steward, Warden
W2013-02361-CCA-R3-HC
Authoring Judge: Judge D. Kelly Thomas
Trial Court Judge: Judge R. Lee Moore Jr.

The Petitioner, Christopher Scott Chapman, appeals as of right from the Lake County Circuit Court’s dismissal of his petition for a writ of habeas corpus. The Petitioner contends that he was denied pretrial jail credits. Discerning no error, we affirm the judgment of the habeas corpus court.

Lake County Court of Criminal Appeals 07/29/14
State of Tennessee v. Michael Jarrod Brady
W2013-02784-CCA-R3-CD
Authoring Judge: Judge John Everett Williams
Trial Court Judge: Judge Roy B. Morgan Jr.

A jury convicted the defendant, Michael Jarrod Brady, of aggravated robbery, a Class B felony. The defendant’s sole issue on appeal is a challenge to the sufficiency of the evidence. Because we find that the evidence is sufficient to sustain the verdict, we affirm the judgment of the trial court.

Madison County Court of Criminal Appeals 07/29/14
State of Tennessee v. Bobby Charles Farley Jr.
W2013-02055-CCA-R3-CD
Authoring Judge: Special Judge Jeffrey S. Bivins
Trial Court Judge: Judge Donald H. Allen

A jury convicted the Defendant, Bobby Charles Farley, Jr., of driving under the influence (“DUI”); unlawful carrying of a weapon; violating the financial responsibility law; and violating the seatbelt law. After a hearing, the trial court imposed an effective sentence of eleven months, twenty-nine days, to be served in the county jail. In this direct appeal, the Defendant challenges the sufficiency of the evidence underlying his DUI offense and the trial court’s instructions to the jury. Upon our thorough review of the record and applicable law, we affirm the trial court’s judgments.

Madison County Court of Criminal Appeals 07/29/14
State of Tennessee v. Burton W. Webb
E2013-02107-CCA-R3-CD
Authoring Judge: Judge Joseph M. Tipton
Trial Court Judge: Judge Rebecca J. Stern

The Defendant, Burton W. Webb, pleaded guilty to three counts of reckless aggravated assault, Class D felonies, two counts of vehicular assault, Class D felonies, and driving under the influence (DUI) second offense, a Class A misdemeanor. See T.C.A. §§ 39-13-102, 39-13-106, 55-10-401 (2010). The trial court merged the DUI conviction with the vehicular assault convictions and sentenced the Defendant as a Range I, standard offender to two years for each reckless aggravated assault conviction and to three years for each vehicular assault conviction. The court ordered consecutive service of the vehicular assault convictions, for an effective six-year sentence. On appeal, the Defendant contends that the trial court erred (1) by applying certain enhancement factors to the vehicular assault convictions, (2) by denying alternative sentencing, and (3) by ordering consecutive sentences. Although we conclude that the trial court erroneously applied two enhancement factors, the lengths and the manner of service of the sentences are proper. We also conclude that the trial court erred by failing to state its factual findings underlying its conclusion that consecutive sentences were warranted pursuant to State v. Wilkerson, 905 S.W.2d 933, 938 (Tenn. 1995). We remand the case in order for the court to state its factual findings on the record.

Hamilton County Court of Criminal Appeals 07/29/14
State of Tennessee v. Pedro Ignacio Hernandez
M2013-01321-CCA-R3-CD
Authoring Judge: Judge James Curwood Witt, Jr.
Trial Court Judge: Judge Monte Watkins

The defendant, Pedro Ignacio Hernandez, appeals from his Davidson County Criminal Court jury convictions of three counts of rape of a child, one count of attempted rape of a child, and five counts of aggravated sexual battery, claiming that the trial court erred by deeming him competent to stand trial; that the trial court erred by denying a motion to suppress his pretrial statement to police; that the trial court erred by denying a motion to suppress the results of DNA testing conducted using DNA that was unconstitutionally obtained; that the trial court erred by allowing the State to present evidence that the defendant displayed a photograph of his genitalia to the victim; that the evidence was insufficient to support two of the defendant’s convictions of rape of a child; that dual convictions of rape of a child in count one and aggravated sexual battery in count twelve were prohibited by principles of due process; and that the trial court erred by imposing consecutive sentences and by sentencing the defendant as a Range II offender.  Because the trial court erroneously imposed a Range II sentence for the defendant’s convictions of rape of a child in violation of constitutional ex post facto protections, the sentence for each conviction of rape of a child is modified from a sentence of 28 years to a sentence of 25 years.  The judgments of the trial court are affirmed in all other respects.

Davidson County Court of Criminal Appeals 07/29/14
Scott Clevenger v. State of Tennessee
E2013-01786-CCA-R3-PC
Authoring Judge: Judge D. Kelly Thomas, Jr.
Trial Court Judge: Judge O. Duane Slone

In this appeal, the Petitioner, Scott Clevenger, contends that he received ineffective assistance of counsel at trial. Specifically, he alleges that trial counsel failed to meet with him an adequate amount of times and failed to give him a copy of the discovery materials so that he could make an informed decision about his case. After considering the record and the applicable authorities, we affirm the judgment of the post-conviction court.

Grainger County Court of Criminal Appeals 07/29/14
State of Tennessee v. Terry Scott Yarbrough
M2013-02125-CCA-R3-CD
Authoring Judge: Judge Roger A. Page
Trial Court Judge: Judge Mark Fishburn

Appellant, Terry Scott Yarbrough, pleaded guilty to driving under the influence (“DUI”), first offense, and received a sentence of eleven months, twenty-nine days, with all but forty-eight hours suspended to supervised probation.  As a condition of the plea agreement, appellant reserved the right to certify a question of law challenging the trial court’s denial of a motion to suppress.  Following our review, we conclude that we do not have jurisdiction to address the certified question of law because it does not comply with the strict requirements of Tennessee Rule of Criminal Procedure 37(b)(2) and State v. Preston, 759 S.W.2d 647 (Tenn. 1988).  Accordingly, the appeal is dismissed.

Davidson County Court of Criminal Appeals 07/29/14
State of Tennessee v. Janet Lynn Jared
M2013-01739-CCA-R3-CD
Authoring Judge: Judge Jerry L. Smith
Trial Court Judge: Judge David Patterson

Appellant, Janet Lynn Jared, was convicted of theft over $10,000.  She was sentenced to six years, with the sentence to be served on probation if she paid restitution of over $82,000 to her victims.  To satisfy the judgment, she sold the family farm, but the sale resulted in net proceeds of only about $48,000.  The State subsequently filed a motion to order that the remaining amount of restitution be paid.  After several hearings, the Criminal Court ordered that Appellant pay the remainder of her obligation at the rate of $500 a month.  Appellant does not challenge the amount of restitution ordered by the Criminal Court, but she contends on appeal that the Court erred by ordering a payment schedule without considering her means and ability to pay, in violation of Tennessee Code Annotated section 40-35-304(d).  The State asks us to dismiss this appeal because under Tennessee Rule of Appellate Procedure 3(b) there is no appeal as of right from a decision to modify the conditions of probation.  We agree with the State.  This appeal is dismissed.

Putnam County Court of Criminal Appeals 07/29/14
State of Tennessee v. Davarius Datron Smith
W2013-01735-CCA-R3-CD
Authoring Judge: Judge Alan E. Glenn
Trial Court Judge: Judge Joe H. Walker III

The defendant, Davarius Datron Smith, was convicted of two counts of attempted second degree murder, a Class B felony; employment of a firearm during the commission of a dangerous felony, a Class C felony; and reckless endangerment, a Class E felony. He was sentenced by the trial court to an effective eighteen-year sentence. On appeal, the defendant argues that he was entitled to a mistrial because the State failed to produce notes taken by an investigator, made improper closing arguments, and asked leading questions of its witnesses; the trial court failed to instruct the jury regarding the State’s duty to preserve evidence and of a lesser-included offense of the indicted charges; and the evidence was insufficient to sustain his convictions. After review, we affirm the judgments of the trial court.

Lauderdale County Court of Criminal Appeals 07/28/14
State of Tennessee v. Charles Sharp
W2013-00330-CCA-R3-CD
Authoring Judge: Judge Thomas T. Woodall
Trial Court Judge: Judge James Lammey

Defendant, Charles Sharp, was originally indicted for one count of especially aggravated sexual exploitation of a minor, four counts of rape, one count of sexual battery by an authority figure, one count of statutory rape, and one count of vandalism under $500. Defendant was acquitted of all charges except especially aggravated sexual exploitation of a minor, on which the jury was hung. See State v. Sharp, 327 S.W.3d 704, 708 (Tenn. Crim. App. 2010). Defendant was tried again on the charge of especially aggravated sexual exploitation of a minor and convicted. Id. This court reversed Defendant’s conviction and remanded for a new trial based on the State’s having read a witness’s testimony from a prior trial into evidence without having shown the witness’s unavailability. Id. at 709-712. Defendant was tried twice more on the charge of especially aggravated sexual exploitation of a minor, and the juries were unable to reach a verdict. In the case sub judice, Defendant was tried and convicted again on the same charge and sentenced to 12 years of incarceration. Defendant now appeals his conviction and sentence and asserts the following: 1) the trial court erred by not dismissing the indictment pursuant to our supreme court’s holding in State v. Witt, 572 S.W.2d 913, 917 (Tenn. 1978); 2) the trial court erred by allowing into evidence testimony of prior bad acts; and 3) the trial court’s imposition of a 12-year sentence was presumptively vindictive. After a careful review of the record and the briefs of the parties, we affirm Defendant’s conviction; however, we conclude that Defendant’s sentence violates Blakely v. Washington, 542 U.S. 296, 124 S. Ct. 2531, 159 L. Ed. 2d 403 (2004), and therefore, we modify Defendant’s sentence from twelve years to nine years.

Shelby County Court of Criminal Appeals 07/28/14
State of Tennessee v. Lavelle Mangrum
W2013-00853-CCA-R3-CD
Authoring Judge: Special Judge Jeffrey S. Bivins
Trial Court Judge: Judge Robert Carter Jr.

Lavelle Mangrum (“the Defendant”) was convicted by a jury of second degree murder. Following a sentencing hearing, the trial court sentenced the Defendant to twenty-four years’ incarceration. In this direct appeal, the Defendant contends that the evidence was insufficient to support his convictions, that the trial court erred in allowing testimony that the Defendant was gang affiliated, and that the trial court erred in allowing testimony that a witness was attacked shortly after giving a statement to police. Upon our thorough review of the record and applicable law, we affirm the judgment of the trial court.

Shelby County Court of Criminal Appeals 07/28/14
State of Tennessee v. Jedarrius Isabell
W2013-00435-CCA-R3-CD
Authoring Judge: Judge Alan E. Glenn
Trial Court Judge: Judge W. Otis Higgs Jr.

The defendant, Jedarrius Isabell, was convicted by a Shelby County Criminal Court jury of attempted first degree murder, a Class A felony; aggravated assault, a Class C felony; three counts of reckless endangerment with a deadly weapon, Class E felonies; and employment of a firearm during the commission of a dangerous felony, a Class C felony, and was sentenced to an effective term of twenty-six years in the Department of Correction. On appeal, he argues that: (1) the jury was exposed to extraneous prejudicial information and outside influence; (2) the trial court improperly communicated with a deliberating jury outside the presence of the defendant and counsel; (3) the failure to name the predicate felony in the indictment for employment of a firearm during the commission of a dangerous felony voids the conviction; (4) felony reckless endangerment is not a lesser-included offense of aggravated assault as charged in Counts 3 and 4 of the indictment; (5) double jeopardy bars his convictions for felony reckless endangerment in Counts 3, 4, and 5; (6) the trial court erred in failing to define “recklessly” in its jury instructions; and (7) the evidence is insufficient to sustain his convictions. After review, we affirm the judgments of the trial court.

Shelby County Court of Criminal Appeals 07/28/14
State of Tennessee v. Jonathan L. Henderson
W2013-01247-CCA-R3-CD
Authoring Judge: Judge Thomas T. Woodall
Trial Court Judge: Judge Roy B. Morgan Jr.

A Madison County Jury convicted Defendant, Jonathan Henderson, of rape of a child and aggravated sexual battery. He received concurrent sentences of twenty-five years for the rape conviction and ten years for aggravated sexual battery. On appeal, Defendant argues: (1) that the evidence was insufficient to support his convictions; (2) that the proof at trial did not establish venue; and (3) that his sentence was excessive. After a thorough review, we affirm the judgments of the trial court.

Madison County Court of Criminal Appeals 07/28/14
Jonathan Everett v. State of Tennessee
W2013-02033-CCA-R3-PC
Authoring Judge: Judge Jerry L. Smith
Trial Court Judge: Judge Lee V. Coffee

A Shelby County jury convicted Petitioner, Jonathan Everett, of one count of second degree murder, one count of attempted voluntary manslaughter, and one count of reckless endangerment. He received an effective sentence of twenty-nine years, eleven months, and twenty-nine days for those offenses. This court affirmed the verdict and sentence on direct appeal. See State v. Jonathan Everett, W2008-01578-CCA-R3-CD, 2011 WL 1304893 (Tenn. Crim. App. at Jackson, Apr. 4, 2011). Petitioner subsequently filed a petition for post-conviction relief, alleging ineffective assistance of counsel at trial and on direct appeal. The Post-Conviction Court denied his petition. We affirm the decision of the Post-Conviction Court.

Shelby County Court of Criminal Appeals 07/28/14
Cedric Dickerson v. State of Tennessee
W2013-01766-CCA-R3-PC
Authoring Judge: Special Judge Jeffrey S. Bivins
Trial Court Judge: Judge Chris Craft

Cedric Dickerson (“the Petitioner”) was convicted by a jury of first degree felony murder and aggravated robbery. The trial court sentenced the Petitioner to life without the possibility of parole for his first degree felony murder conviction and eleven years for his aggravated robbery conviction and ordered the sentences to run concurrently. On direct appeal, this Court affirmed the trial court’s judgments. See State v. Cedric Dickerson, No. 02C01-9802-CR-00051, 1999 WL 74213, at *4 (Tenn. Crim. App. Feb. 17, 1999). The Petitioner subsequently filed for post-conviction relief, which the post-conviction court denied following a post-conviction hearing. The Petitioner now appeals, arguing that “the Eighth Amendment should prohibit life without parole sentences for juvenile offenders.” Upon our thorough review of the record and the applicable law, we affirm the post-conviction court’s decision denying relief.

Shelby County Court of Criminal Appeals 07/28/14
State of Tennessee v. Anthony Antonio Cole
W2013-02161-CCA-R3-CD
Authoring Judge: Special Judge Jeffrey S. Bivins
Trial Court Judge: Judge Donald H. Allen

Anthony Antonio Cole (“the Defendant”) was convicted by a jury of driving under the influence, driving without a license, violation of the financial responsibility law, violation of the registration law, and failure to yield the right of way. Following a sentencing hearing, the trial court ordered the Defendant to serve a total effective sentence of twelve months and twenty-nine days in confinement. In this direct appeal, the Defendant challenges the sufficiency of the evidence supporting his convictions for driving under the influence, driving without a license, and failure to yield the right of way. Upon our thorough review of the record and applicable law, we affirm the judgments of the trial court.

Madison County Court of Criminal Appeals 07/28/14
State of Tennessee v. Dennis Butler
W2013-01397-CCA-R3-CD
Authoring Judge: Special Judge Jeffrey S. Bivins
Trial Court Judge: Judge Chris Craft

Dennis Butler (“the Defendant”) pleaded guilty to one count of sale of cocaine. Pursuant to the plea agreement, the Defendant was sentenced to four years suspended to probation. Upon the filing of a probation revocation warrant, the Defendant was taken into custody, and a revocation hearing was held. At the conclusion of the hearing, the trial court revoked the Defendant’s probation and ordered him to serve his original sentence in confinement. The Defendant timely appealed the trial court’s ruling. Upon a thorough review of the record, we affirm the trial court’s judgment.

Shelby County Court of Criminal Appeals 07/28/14
State of Tennessee v. Norman Branch
W2013-00964-CCA-R3-CD
Authoring Judge: Special Judge Jeffrey S. Bivins
Trial Court Judge: Judge Paula Skahan

A jury convicted the Defendant, Norman Branch, of theft of $500 or less and intentionally evading arrest in a motor vehicle. After a hearing, the trial court imposed an effective sentence of six years, eleven months, and twenty-nine days, to be served in the workhouse. In this direct appeal, the Defendant contends the following: (1) the trial court erred in allowing him to be impeached with twelve prior convictions; (2) the trial court erred in excluding certain of his testimony as inadmissible hearsay; (3) the evidence was not sufficient to support his evading arrest conviction; (4) the trial court provided an improper jury instruction on the evading arrest charge; (5) the trial court erred in sentencing him as a career offender; and (6) cumulative error entitles him to a new trial. Upon our thorough review of the record and applicable law, we affirm the trial court’s judgments.

Shelby County Court of Criminal Appeals 07/28/14