Court of Criminal Appeals Opinions

Format: 10/22/2019
Format: 10/22/2019
State of Tennessee v. Austin Andrew Morse
M2018-00430-CCA-R3-CD
Authoring Judge: Judge Thomas T. Woodall
Trial Court Judge: Judge Steve R. Dozier

Defendant, Austin Andrew Morse, was indicted by the Davidson County Grand Jury for six counts of aggravated child abuse, four counts of aggravated child neglect, and four counts of aggravated child endangerment. Pursuant to a plea agreement, Defendant pleaded guilty to two counts of aggravated child neglect. The remaining counts were dismissed. It was agreed that Defendant’s sentences would be served concurrently with a 70 percent release eligibility date. The trial court would determine the length of the sentences. Following a sentencing hearing, the trial court imposed sentences of 19 and 21 years for Defendant’s convictions. In this appeal as of right, Defendant contends that the trial court abused its discretion in imposing the length of his sentences. Having reviewed the entire record and the briefs of both parties, we affirm the judgments of the trial court.

Davidson County Court of Criminal Appeals 07/31/19
Antonio Terrell Pewitte v. State of Tennessee
M2018-01704-CCA-R3-PC
Authoring Judge: Judge Robert H. Montgomery, Jr.
Trial Court Judge: Judge Angelita Blackshear Dalton

The Petitioner, Antonio Terrell Pewitte, appeals the Davidson County Criminal Court’s denial of his petition for post-conviction relief from his 2015 conviction for aggravated child neglect and his twenty-year sentence. The Petitioner contends that he received the ineffective assistance of counsel. We affirm the judgment of the post-conviction court.

Davidson County Court of Criminal Appeals 07/31/19
Bernie Ray McGill v. State of Tennessee
E2018-01872-CCA-R3-PC
Authoring Judge: Judge Norma McGee Ogle
Trial Court Judge: Judge Bobby R. McGee

The Petitioner, Bernie Ray McGill, appeals the Knox County Criminal Court’s denial of his petition for post-conviction relief from his conviction of aggravated assault and tenyear sentence. On appeal, he contends that the post-conviction court erred by finding that his petition was barred by the statute of limitations because due process required that the statute of limitations be tolled. Based upon the record and the parties’ briefs, we affirm the judgment of the post-conviction court.

Knox County Court of Criminal Appeals 07/30/19
State of Tennessee v. Kelvin Dewayne Golden
W2018-01477-CCA-R3-CD
Authoring Judge: Judge J. Ross Dyer
Trial Court Judge: Judge Roy B. Morgan, Jr.

A Madison County jury convicted the defendant, Kelvin Dewayne Golden, of aggravated sexual battery, and the trial court imposed a sentence of ten years’ confinement. On appeal, the defendant challenges the sufficiency of the evidence to support his conviction and argues the sentence imposed by the trial court was excessive. After reviewing the record and considering the applicable law, we affirm the judgment of the trial court.

Madison County Court of Criminal Appeals 07/29/19
State of Tennessee v. Bobby Lewis Parks
W2018-01761-CCA-R3-CD
Authoring Judge: Judge J. Ross Dyer
Trial Court Judge: Judge Donald H. Allen

The defendant, Bobby Lewis Parks, entered an open plea to two counts of sale of 0.5 grams or more of cocaine, two counts of delivery of 0.5 grams or more of cocaine, one count of sale of less than 0.5 grams of cocaine, and one count of delivery of less than 0.5 grams of cocaine. The trial court sentenced the defendant to an effective sentence of thirty years’ incarceration in the Tennessee Department of Correction. On appeal, the defendant argues the sentence imposed by the trial court was excessive. After reviewing the record and considering the applicable law, we affirm the judgments of the trial court.

Madison County Court of Criminal Appeals 07/29/19
State of Tennessee v. Cedric Dante Harris
W2018-01571-CCA-R3-CD
Authoring Judge: Judge Timothy L. Easter
Trial Court Judge: Judge Donald E. Parish

Defendant, Cedric Dante Harris, was convicted of possession of 0.5 grams or more of methamphetamine with intent to deliver, simple possession of marijuana, and tampering with evidence. He appeals, arguing that the evidence was insufficient to support his convictions. After carefully reviewing the record, we conclude that the evidence was sufficient. Accordingly, the judgments of the trial court are affirmed.

Carroll County Court of Criminal Appeals 07/29/19
State of Tennessee v. Charles Sinclair Hodge
M2018-01647-CCA-R3-CD
Authoring Judge: Judge Norma McGee Ogle
Trial Court Judge: Judge Mark J. Fishburn

A Davidson County Criminal Court Jury convicted the Appellant, Charles Sinclair Hodge, of aggravated assault resulting in death and criminally negligent homicide, and the trial court ordered him to serve two years in confinement for criminally negligent homicide and five years on supervised probation for aggravated assault after completing the two-year sentence. The trial court then merged the convictions. On appeal, the Appellant contends that the trial court’s sentencing him for both convictions and entering two separate judgments of conviction violate double jeopardy principles. Based upon the record and the parties’ briefs, we conclude that the trial court properly entered two separate judgments of conviction as required by our supreme court; however, the case must be remanded to the trial court because of errors in sentencing.

Davidson County Court of Criminal Appeals 07/29/19
State of Tennessee v. Danny D. Keen
M2018-01152-CCA-R3-CD
Authoring Judge: Judge J. Ross Dyer
Trial Court Judge: Judge Brody N. Kane

A Wilson County jury convicted the defendant, Danny D. Keen, of aggravated robbery, and the trial court imposed a sentence of eight years in confinement. On appeal, the defendant challenges the sufficiency of the evidence to support his conviction. After reviewing the record and considering the applicable law, we affirm the judgment of the trial court.

Wilson County Court of Criminal Appeals 07/29/19
Eric Thomas v. State of Tennessee
M2018-01153-CCA-R3-HC
Authoring Judge: Judge D. Kelly Thomas, Jr.
Trial Court Judge: Judge Monte D. Watkins

The Petitioner, Eric Thomas, appeals the Davidson County Criminal Court’s denial of his third petition for habeas corpus relief challenging his 1999 convictions for robbery and the resulting thirty-two-year and one-day sentence. He contends that he is being illegally detained because amended judgments of convictions were never entered following resentencing and that absent entry of valid judgment forms imposing his restraint, his six-year sentences have expired. The habeas corpus court concluded that the Petitioner had failed to state a cognizable claim for relief. We affirm.

Davidson County Court of Criminal Appeals 07/26/19
State of Tennessee v. Luis A. Meza Olivera
E2017-01871-CCA-R3-CD
Authoring Judge: Judge D. Kelly Thomas, Jr.
Trial Court Judge: Judge Lisa Rice

The Defendant, Luis A. Meza Olivera, was convicted by a jury of two counts of aggravated assault, a Class C felony; and three counts of aggravated kidnapping, a Class B felony. See Tenn. Code Ann. §§ 39-13-102, -304. The trial court merged the convictions into one count of aggravated assault and one count of aggravated kidnapping. The trial court then imposed a total effective sentence of twelve years. On appeal, the Defendant contends that (1) the evidence was insufficient to sustain his convictions; (2) the trial court erred in admitting evidence of three prior incidents of domestic violence involving the Defendant and the victim; (3) the trial court erred in allowing a child witness to testify by closed circuit television; (4) the trial court erred in excluding a video recording taken after the offenses were committed; (5) the trial court abused its discretion by imposing the maximum sentence for each conviction; and (6) a new trial is warranted due to cumulative error.1 Following our review, we affirm the judgments of the trial court.

Washington County Court of Criminal Appeals 07/26/19
State of Tennessee v. Darryl Rene Morgan - dissenting
E2018-00916-CCA-R3-CD
Authoring Judge: Judge James Curwood Witt, Jr.
Trial Court Judge: Judge G. Scott Green

I respectfully disagree with the majority’s decision to affirm the trial court’s order of suppression of evidence. In particular, I would not have reviewed a theory of exigent circumstances in determining that the warrantless search of the defendant’s person was illegal. Rather, I believe that the search-incident-to-arrest rationale undergirds the search in this case and requires a reversal of the trial court’s ruling.

Knox County Court of Criminal Appeals 07/25/19
State of Tennessee v. Darryl Rene Morgan
E2018-00916-CCA-R3-CD
Authoring Judge: Judge Robert H. Montgomery, Jr.
Trial Court Judge: Judge G. Scott Green

The State of Tennessee appeals the Knox County Criminal Court’s order granting the Defendant’s motion to suppress, which resulted in the dismissal of the case. On appeal, the State contends that the trial court erred because the warrantless search of the Defendant was conducted pursuant to probable cause and exigent circumstances. We affirm the judgment of the trial court.

Knox County Court of Criminal Appeals 07/25/19
State of Tennessee v. Joshua Derek Tweedy
W2018-01202-CCA-R3-CD
Authoring Judge: Judge Robert H. Montgomery, Jr.
Trial Court Judge: Judge Roy B. Morgan, Jr.

The Defendant, Joshua Tweedy, was convicted by a Madison County Circuit Court jury of assault, a Class A misdemeanor, and possession of a firearm by a convicted violent felon, a Class B felony. See T.C.A. §§ 39-13-101 (assault) (Supp. 2016) (subsequently amended), 39-17-1307(b)(1)(A) (Supp. 2017) (subsequently amended) (possession of a firearm by a convicted violent felon). On appeal, the Defendant contends that the evidence is insufficient to support his convictions and that the trial court erred in imposing an effective eighteen-year sentence. We affirm the judgments of the trial court.

Madison County Court of Criminal Appeals 07/23/19
William Henry Smith, Jr v. State of Tennessee
M2018-01302-CCA-R3-PC
Authoring Judge: Judge James Curwood Witt, Jr.
Trial Court Judge: Judge Forest A. Durard, Jr.

The petitioner, William Henry Smith, Jr., appeals the denial of his petition for post-conviction relief, which petition challenged his 2015 conviction of conspiracy to sell and deliver one-half grams or more of a Schedule II drug,1 alleging that he was deprived of the effective assistance of counsel. Discerning no error, we affirm the denial of post-conviction relief.

Bedford County Court of Criminal Appeals 07/22/19
State of Tennessee v. Michael D. Fykes
M2018-00703-CCA-R3-CD
Authoring Judge: Judge James Curwood Witt, Jr.
Trial Court Judge: Judge Monte Watkins

The defendant, Michael D. Fykes, appeals his Davidson County Criminal Court jury convictions of especially aggravated burglary and aggravated assault, arguing that the trial court erred by admitting certain evidence in violation of Tennessee Rule of Evidence 404(b) and imposing a sentence greater than necessary and that the evidence was insufficient to support the convictions. Because dual convictions of especially aggravated burglary and aggravated assault in this case are prohibited by statute, we modify the conviction of especially aggravated burglary to aggravated burglary and remand to the trial court for resentencing. We otherwise affirm the judgments of the trial court.

Davidson County Court of Criminal Appeals 07/22/19
Coy J. Cotham, Jr., AKA Cory J. Cotham v. State of Tennessee
M2017-02031-CCA-R3-PC
Authoring Judge: Judge Thomas T. Woodall
Trial Court Judge: Judge Cheryl A. Blackburn

Petitioner, Coy J. Cotham, Jr., appeals the denial of his petition for post-conviction relief, in which he alleged that his trial counsel was ineffective. Petitioner contends that the post-conviction court erred by denying his pro se motion to relieve post-conviction counsel, or in the alternative, his motion to continue the post-conviction hearing; that his post-conviction counsel was ineffective for failing to adequately present his claims for post-conviction relief; and that the post-conviction court erred by denying his petition for
post-conviction relief. Having reviewed the record and the briefs of the parties, we affirm the judgment of the post-conviction court.

Davidson County Court of Criminal Appeals 07/22/19
Paul Hayes v. State of Tennessee
W2018-01555-CCA-R3-ECN
Authoring Judge: Judge Timothy L. Easter
Trial Court Judge: Judge Chris Craft

Petitioner, Paul Hayes, filed a petition for writ of error coram nobis based on a victim recanting her identification of him as one of the perpetrators of a home invasion that took place over two decades ago. The petition was denied by the trial court both for having been untimely filed and because the new evidence was neither credible nor was likely to have changed the outcome of the trial. On appeal, we affirm the judgment of the trial court that the petition should be denied on the merits.

Shelby County Court of Criminal Appeals 07/19/19
State of Tennessee v. Michael Ray Howser
M2018-00603-CCA-R3-CD
Authoring Judge: Judge Thomas T. Woodall
Trial Court Judge: Judge Dee David Gay

Defendant, Michael Ray Howser, pled guilty to aggravated assault, reckless endangerment with a deadly weapon, and possession of a weapon by a convicted felon with an agreed effective sentence of ten years as a Range II multiple offender with the trial court to determine the manner of service. A sentencing hearing was held, and the trial court ordered Defendant’s ten-year sentence to be served in confinement. On appeal, Defendant argues that the trial court erred by denying alternative sentencing. After a careful review of the record, we affirm the judgments of the trial court.

Sumner County Court of Criminal Appeals 07/19/19
State of Tennessee v. Joshua Michael Ward
E2018-01781-CCA-R3-CD
Authoring Judge: Judge John Everett Williams
Trial Court Judge: Judge E. Shayne Sexton

The Defendant, Joshua Michael Ward, entered a guilty plea to reckless homicide, a Class D felony, after the all-terrain vehicle (“ATV”) he was driving ran down an embankment, killing his passenger. The trial court denied the Defendant judicial diversion and sentenced him to three years, with ninety days to be served in confinement and the remainder on unsupervised probation. The Defendant appeals the denial of judicial diversion and the denial of full probation. We conclude that the trial court did not abuse its discretion in sentencing, and we affirm the judgment.

Scott County Court of Criminal Appeals 07/19/19
State of Tennessee v. Tory Blackmon
W2018-01061-CCA-R3-CD
Authoring Judge: Judge Robert H. Montgomery, Jr.
Trial Court Judge: Judge Lee V. Coffee

The Defendant, Tory Blackmon, was convicted by a Shelby County Criminal Court jury of attempted first degree murder, a Class A felony; employing a firearm during the commission or attempted commission of a dangerous felony, a Class C felony; and aggravated assault, a Class C felony. See T.C.A. §§ 39-12-101(a)(1)-(3) (2018) (criminal attempt), 39-13-202(a) (2014) (subsequently amended) (first degree murder), 39-13-102(a) (2014) (subsequently amended) (aggravated assault), 39-17-1324(b)(2) (2014) (subsequently amended) (armed dangerous felonies). The court imposed a twenty-year sentence for attempted first degree murder, a six-year sentence for the employing a firearm conviction, and a four-year sentence for aggravated assault. The court merged the aggravated assault conviction with the attempted first degree murder conviction, and it ordered the firearm conviction to be served consecutively to the attempted murder conviction as required by Tennessee Code Annotated section 39-17-1324(e)(1) (2014) (subsequently amended). On appeal, the Defendant contends that the court erred in sentencing. We affirm the judgments of the trial court.

Shelby County Court of Criminal Appeals 07/17/19
State of Tennessee v. Cedrick Dewayne Whiteside
W2018-01692-CCA-R3-CD
Authoring Judge: Judge Thomas T. Woodall
Trial Court Judge: Judge Kyle Atkins

Defendant, Cedrick Dewayne Whiteside, was found guilty of driving under the influence of an intoxicant, criminal impersonation, driving on a cancelled, suspended, or revoked, license, and failure to exercise due care. On appeal, he argues that the evidence presented at trial was insufficient for the trier of fact to find him guilty of driving under the influence of an intoxicant and for failure to exercise due care. In light of the evidence presented, we uphold Defendant’s driving under the influence conviction but reverse and dismiss the jury’s finding of failure to exercise due care.

Henderson County Court of Criminal Appeals 07/16/19
State of Tennessee v. Ashton Montrell Jones
W2018-01845-CCA-R3-CD
Authoring Judge: Judge Thomas T. Woodall
Trial Court Judge: Judge J. Weber McCraw

Defendant, Ashton Montrell Jones, appeals from the trial court’s order denying Defendant’s Tennessee Rule of Criminal Procedure 36 motion (“Rule 36 motion”) to correct a clerical error in a community corrections revocation order. The trial court summarily denied the motion without an evidentiary hearing on the sole basis of “lack of jurisdiction.” Under the particular circumstances of this case, we reverse the trial court’s order and remand to the trial court for proper consideration of the motion.

Hardeman County Court of Criminal Appeals 07/16/19
State of Tennessee v. Billy Eugene Cook, Jr.
M2018-00246-CCA-R3-CD
Authoring Judge: Judge Norma McGee Ogle
Trial Court Judge: Judge Gary McKenzie

The Appellant, Billy Eugene Cook, Jr., appeals the trial court’s revocation of his probation for aggravated burglary, contending that the trial court erred by denying a continuance of the revocation hearing and by revoking his probation on his first violation. Upon review, we affirm the judgment of the trial court.

DeKalb County Court of Criminal Appeals 07/16/19
State of Tennessee v. Roger F. Johnson
M2018-01216-CCA-R3-CD
Authoring Judge: Judge Camille R. McMullen
Trial Court Judge: Judge Thomas W. Graham

Following a bench trial in the Grundy County Circuit Court, the Defendant, Roger F. Johnson, was convicted as charged of indecent exposure, a Class B misdemeanor. He was subsequently sentenced to a six-month sentence, with service of forty-five days in jail prior to serving the remainder of the sentence on supervised probation. On appeal, the Defendant argues: (1) the indictment fails to charge an offense because it does not include the correct mens rea; (2) the indictment is duplicitous; and (3) the evidence is insufficient to sustain his conviction. We affirm the judgment of the trial court.

Grundy County Court of Criminal Appeals 07/15/19
State of Tennessee v. Bobby D. Dewalt
W2018-01850-CCA-R3-CD
Authoring Judge: Judge Timothy L. Easter
Trial Court Judge: Judge Joe H. Walker, III

Defendant, Bobby D. Dewalt, pled guilty to three counts of delivery of .5 grams or more of cocaine as a Range II, Multiple Offender in case number 10598 and was sentenced by the trial court to twelve years for each conviction, to be served concurrently. The trial court denied Defendant’s request for an alternative sentence. At the same time, Defendant’s probation was revoked in case number 9783, for which Defendant was on probation at the time of his guilty plea. Defendant filed a timely notice of appeal. After a review, we determine that the trial court did not abuse its discretion in denying an alternative sentence.

Lauderdale County Court of Criminal Appeals 07/12/19