Court Opinions

Format: 11/09/2018
Format: 11/09/2018
State of Tennessee v. Rodney Alan Kiefner
W2017-02096-CCA-R3-CD
Authoring Judge: Judge Robert H. Montgomery, Jr.
Trial Court Judge: Judge Kyle Atkins

The Defendant, Rodney Alan Kiefner, appeals from the Madison County Circuit Court’s denial of his Tennessee Rule of Criminal Procedure 32(f) motion to withdraw his 2017 guilty pleas to attempted first degree murder and two counts of aggravated assault, for which he is serving an effective fifteen-year sentence. The Petitioner contends that the trial court erred by denying his motion because his guilty pleas were involuntary and because he received the ineffective assistance of counsel. We affirm the judgment of the trial court.

Madison County Court of Criminal Appeals 11/09/18
Scott A. Padgett v. Clarksville-Montgomery County School System, Et Al.
M2017-01751-COA-R3-CV
Authoring Judge: Judge Andy D. Bennett
Trial Court Judge: Judge Ross H. Hicks

A teacher dismissed from his teaching position filed suit against the school system and the chief human resources officer for libel and breach of contract. The trial court denied the teacher’s motion for leave to file an amended complaint and granted the defendants’ motions for summary judgment as to both claims. Finding no error, we affirm the decision of the trial court in all respects.

Montgomery County Court of Appeals 11/09/18
State of Tennessee v. Kristen L. Van De Gejuchte
M2017-01173-CCA-R3-CD
Authoring Judge: Judge Timothy L. Easter
Trial Court Judge: Judge Dee David Gay

Defendant, Kristen L. Van De Gejuchte, appeals her conviction for driving under the influence. In her appeal, she contends that the evidence is insufficient to support her conviction and that the trial court erred by denying her motion to suppress. After a thorough review of the record and the applicable law, we conclude that the evidence is sufficient to support her conviction and that the trial court did not err. Therefore, we affirm the judgments of the trial court but remand for entry of a corrected judgment document for Count One reflecting its merger with Count Two.

Sumner County Court of Criminal Appeals 11/09/18
State of Tennessee v. Mardoche Olivier
M2017-02114-CCA-R3-CD
Authoring Judge: Judge John Everett Williams
Trial Court Judge: Judge Ross H. Hicks

The Defendant, Mardoche Olivier, was convicted by a jury of driving on a suspended license in violation of Tennessee Code Annotated section 55-50-104. The trial court sentenced the Defendant to six months of incarceration to be served concurrently with a pre-existing sentence. On appeal, the Defendant argues that the evidence presented at trial is insufficient to support the jury’s verdict. After a review of the record and applicable law, we affirm the judgment of the trial court.

Montgomery County Court of Criminal Appeals 11/09/18
In Re: Ruger N.
E2017-01379-COA-R3-PT
Authoring Judge: Judge John W. McClarty
Trial Court Judge: Judge Lawrence Howard Puckett

This action involves the termination of a father’s parental rights to his minor child. Following a bench trial, the court found that clear and convincing evidence existed to support the statutory grounds of abandonment for failure to support and to visit. The court further found that termination was in the best interest of the child. We affirm

Polk County Court of Appeals 11/09/18
Riverland, LLC v. City of Jackson, Tennessee
W2017-01464-COA-R3-CV
Authoring Judge: Judge Kenny Armstrong
Trial Court Judge: Judge Kyle Atkins

Appellant sued the City of Jackson, Tennessee, after Appellant’s commercial building was damaged by flooding. Appellant stated claims, under the Governmental Tort Liability Act, for temporary and permanent nuisance, trespass, negligence, and gross negligence. Appellant also sought relief for inverse condemnation and equitable relief under a theory of nuisance. On a grant of summary judgment, the trial court dismissed the GTLA claims, finding that the City’s immunity to suit was not removed. The trial court also granted summary judgment to the City on the inverse condemnation and nuisance claims. Discerning no error, we affirm and remand.

Madison County Court of Appeals 11/09/18
State of Tennessee v. Steve M. Jarman - concurring Opinion
M2017-01313-CCA-R3-CD
Authoring Judge: Judge James Curwood Witt, Jr.
Trial Court Judge: Judge Larry J. Wallace

I join in the majority's disposition of this case. I write separately because it is my view that the references to passion and provocation by their very nature express neither elements of voluntary manslaughter that the State is required to prove nor an absolute defense; instead, they are a type of built-in mitigation to a knowing or intentional killing.

Dickson County Court of Criminal Appeals 11/08/18
State of Tennessee v. Steve M. Jarman
M2017-01313-CCA-R3-CD
Authoring Judge: Judge John Everett Williams
Trial Court Judge: Judge Larry J. Wallace

The Defendant, Steve M. Jarman, was convicted by a jury of voluntary manslaughter and received a sentence of five years to be served in the Tennessee Department of Correction. On appeal, the Defendant challenges: (1) the sufficiency of the evidence to support his conviction; (2) the admission of evidence of a prior assault charge for which the Defendant was acquitted and of prior threats against the victim’s sister; (3) the admission of evidence of the Defendant’s attempt to cash a check made out to the victim after the victim’s death; (4) the admission of the victim’s testimony in a prior trial as violating the Confrontation Clause; (5) and his five-year sentence to be served in confinement. We conclude that the trial court committed reversible error in admitting evidence of a prior criminal offense for which the Defendant was acquitted and evidence of the Defendant’s prior threats against the victim’s sister. Accordingly, we reverse the judgment of the trial court and remand the case for a new trial.

Dickson County Court of Criminal Appeals 11/08/18
James Allen Pollard v. State of Tennessee
M2017-01595-CCA-R3-PC
Authoring Judge: Judge Alan E. Glenn
Trial Court Judge: Judge Monte Watkins

The Petitioner, James Allen Pollard, appeals the post-conviction court’s dismissal of his petition for post-conviction relief, arguing that he received ineffective assistance of counsel. After thorough review, we affirm the dismissal of the petition.

Davidson County Court of Criminal Appeals 11/08/18
State of Tennessee v. Jerry Wade Sherrill
M2017-00643-CCA-R3-CD
Authoring Judge: Judge Robert H. Montgomery, Jr.
Trial Court Judge: Judge Robert Jones

The Defendant, Jerry Wade Sherrill, was convicted by a Wayne County Circuit Court jury of two counts of rape, Class B felonies, and two counts of incest, Class C felonies. See T.C.A. §§39-13-503 (2014) (rape), 39-15-302 (2014) (incest). The trial court sentenced the Defendant to five years for the incest convictions and to eight years for the rape convictions, with all sentences to be served concurrently. On appeal, the Defendant contends that (1) the evidence is insufficient to support his convictions, (2) the trial court erred in denying his claim pursuant to Brady v. Maryland based upon the State’s failure to disclose alleged incentives offered to the codefendant, (3) the trial court erred in denying his motion to dismiss pursuant to State v. Ferguson based upon lost evidence, (4) the trial court erred in denying his motion to dismiss based upon alleged prosecutorial misconduct, and (5) he is entitled to a new trial due to cumulative errors in the conviction proceedings. The State raises an additional allegation of error based upon the trial court’s reduction of the Defendant’s rape sentences from ten to eight years. We affirm the incest judgments and the rape convictions, but we remand for entry of amended judgments for the rape convictions.

Wayne County Court of Criminal Appeals 11/08/18
Sonya Brooks v. Ron Woody, Et Al.
E2018-00127-COA-R3-CV
Authoring Judge: Judge D. Michael Swiney, C.J.
Trial Court Judge: Judge Michael S. Pemberton

In this wrongful dismissal case, Sonya Brooks (“Brooks”) sued her former employer Roane County and county officials Ron Woody and Gloria Wright (“Defendants”). In a March 9, 2017 order, the Circuit Court for Roane County (“the Trial Court”) dismissed Brooks’ lawsuit against Defendants with prejudice. The Trial Court reserved taxation of costs for a later date. Brooks filed a notice of appeal on January 10, 2018. Defendants argue that Brooks’ appeal was filed untimely. Brooks contends that the March 9, 2017 order was not final and appealable because it reserved the issue of costs. We hold that, in keeping with longstanding Tennessee case law, taxation of costs is incidental and not a factor in determining whether a judgment is final. As Brooks’ notice of appeal was not filed timely, we are constrained to dismiss her appeal for lack of jurisdiction.

Roane County Court of Appeals 11/08/18
State of Tennessee v. Demetrius Grimes
E2017-01022-CCA-R3-CD
Authoring Judge: Judge Alan E. Glenn
Trial Court Judge: Judge Bobby R. McGee

The Defendant, Demetrius Grimes, was convicted of two counts of attempted first-degree murder; five counts of employing a firearm during a dangerous felony; four counts of employing a firearm during the commission of a dangerous felony with a prior dangerous felony conviction; two counts of attempted especially aggravated robbery; two counts of attempted carjacking; one count of attempted first-degree murder with serious bodily injury; two counts of assault; and one count of simple possession of a controlled substance, third offense. The sentences for the attempted first-degree murders of Michael Dixon and Carl Chesney were ordered to be served consecutively to each other, as well as to both of the 10-year sentences for employing a firearm during a dangerous felony, which were, in turn, to be served consecutively to each other, resulting in a total effective sentence of sixty years. Further, all the sentences were to be served consecutively to a sentence for a prior conviction. On appeal, the Defendant asserts that, since the State argued at trial that Michael Dixon was the intended target of the shots, the attempted first-degree murder conviction for the shooting of Carl Chesney could not stand. Further, the Defendant argues on appeal that the multiple convictions for employment of a firearm during the commission of multiple dangerous felonies cannot stand, for the evidence showed that the Defendant used only one weapon, thus supporting only a single firearm conviction; and that the trial court erred in ordering consecutive sentencing. The State agrees on appeal that the court erred as to sentencing in Counts 15 through 18, which enhanced the Defendant’s sentences for employing a firearm during the commission of four attempted dangerous felonies, for the prior felonies upon which the enhancement was based, were not “dangerous” felonies, as required by statute, but, rather, were simple drug possession convictions. Accordingly, we reverse the convictions as to Counts 15 through 18 and dismiss those charges. We reinstate the convictions for Counts 2, 4, 8, 10 and 12, which were merged into Counts 15 through 18, and remand for entry of amended judgments. We conclude that the other issues raised on appeal by the Defendant are without merit.

Knox County Court of Criminal Appeals 11/07/18
State of Tennessee v. Alexander R. Vance and Damonta M. Meneese
M2017-01037-CCA-R3-CD
Authoring Judge: Judge Alan E. Glenn
Trial Court Judge: Judge J. Randall Wyatt, Jr.

The Defendants, Alexander R. Vance and Damonta M. Meneese, were each convicted of second degree murder, first-degree murder in perpetration of a felony, especially aggravated robbery, and three counts of aggravated assault. As to each, the trial court merged the second degree murder conviction into that for first-degree murder, imposing an effective sentence of life imprisonment plus 21 years. In these consolidated appeals, both defendants argue that the trial court erred in allowing hearsay testimony by a State witness regarding a statement made by a co-defendant whose charges had been severed from the two defendants in this matter. Additionally, the Defendant Vance argues that the evidence is insufficient to sustain his convictions, and the Defendant Meneese argues that the trial court erred by ordering partial consecutive sentencing. Following our review, we affirm the judgments of the trial court as to both defendants.

Davidson County Court of Criminal Appeals 11/07/18
Robert Wayne Garner v. State of Tennessee
M2017-00417-CCA-R3-PC
Authoring Judge: Judge Alan E. Glenn
Trial Court Judge: Judge Stella L. Hargrove

The Petitioner, Robert Wayne Garner, appeals the denial of his petition for post-conviction relief, arguing that he received ineffective assistance of counsel and that the post-conviction court abused its discretion by not allowing one of his witnesses to finish testifying at the evidentiary hearing. After review, we dismiss this appeal for lack of jurisdiction.

Giles County Court of Criminal Appeals 11/07/18
State of Tennessee v. Jeremy Arthur Kimble
M2017-02472-CCA-R3-CD
Authoring Judge: Judge D. Kelly Thomas, Jr.
Trial Court Judge: Judge William R. Goodman, III

The Defendant, Jeremy Arthur Kimble, received an effective thirty-five-year sentence for his guilty-pleaded convictions to four counts of rape of a child, two counts of rape, and one count of continuous sexual abuse of a child. The Defendant appeals, arguing that the trial court erred in enhancing his sentencing terms for his rape of a child convictions above the minimum in the range. The Defendant contends that the trial court improperly applied certain enhancement factors and failed to apply a pertinent mitigating factor. Following our review of the record, we affirm the judgments of the trial court given that the Defendant held and violated a position of trust as the victim’s step-father, that the offenses were committed to gratify the Defendant’s desire for pleasure or excitement, and that the repeated abuse resulted in an unwanted pregnancy. However, in accordance with this opinion, we remand the case for entry of corrected judgment forms and for additional judgment forms for each count of the indictment.

Montgomery County Court of Criminal Appeals 11/07/18
Pamela Annette Dotson v. Willie Jefferson Dotson
M2017-00807-COA-R3-CV
Authoring Judge: Judge W. Neal McBrayer
Trial Court Judge: Judge Joe H. Thompson

This post-divorce dispute concerns the enforcement of a retirement benefits provision in a marital dissolution agreement. After the defendant retired, he refused to pay any portion of his retirement benefits to his ex-wife based on his interpretation of their marital dissolution agreement. His ex-wife disagreed with his interpretation and petitioned the trial court to enforce their agreement. Both parties moved for summary judgment. The trial court denied the defendant’s motion and granted his ex-wife’s cross-motion. Upon review, we affirm the trial court in all respects and award the ex-wife her attorney’s fees incurred on appeal.

Sumner County Court of Appeals 11/06/18
State of Tennessee v. Robert Derrick Johnson
M2015-02516-CCA-R3-CD
Authoring Judge: Judge Norma McGee Ogle
Trial Court Judge: Judge Franklin Lee Russell

The Appellant, Robert Derrick Johnson, was found guilty of robbery, and the trial court sentenced the Appellant as a Range II multiple offender to ten years in the Tennessee Department of Correction. On appeal, the Appellant contends that he was denied his constitutional right to a speedy trial and that the trial court erred by declaring a mistrial in his first trial; therefore, his conviction following a second trial violates the principles of double jeopardy. Upon review, the judgment of the trial court is affirmed.

Bedford County Court of Criminal Appeals 11/06/18
Derrick Pierce v. State of Tennessee
W2017-01733-CCA-R3-PC
Authoring Judge: Judge Thomas T. Woodall
Trial Court Judge: Judge J. Robert Carter, Jr.

Petitioner, Derrick Pierce, appeals the denial of his post-conviction petition. Petitioner argues that he received ineffective assistance of counsel at trial which forced him to plead guilty after the trial began, and the State had presented proof. Following a review of the briefs of the parties and the entire record, we affirm the judgment of the post-conviction court.

Shelby County Court of Criminal Appeals 11/05/18
State of Tennessee v. Antonio Benson
W2017-01119-CCA-R3-CD
Authoring Judge: Judge Norma McGee Ogle
Trial Court Judge: Judge Lee V. Coffee

A Shelby County Criminal Court Jury convicted the Appellant, Antonio Benson, of first degree premeditated murder, and the trial court sentenced him to life. On appeal, the Appellant contends that the trial court erred by refusing to instruct the jury on selfdefense, that the trial court erred by refusing to admit evidence about a prior violent act committed by the victim, that the trial court erred by preventing him from sitting at counsel table during the trial, and that the evidence is insufficient to support the conviction. Based upon the oral arguments, the record, and the parties’ briefs, we conclude that the trial court erred by failing to instruct the jury on self-defense and that the State failed to show the error was harmless. Accordingly, the Appellant’s conviction is reversed, and the case is remanded to the trial court for a new trial.

Shelby County Court of Criminal Appeals 11/05/18
State of Tennessee v. Kristina Cole and Montez Mullins
W2017-01980-CCA-R3-CD
Authoring Judge: Judge Robert L. Holloway, Jr.
Trial Court Judge: Judge J. Robert Carter, Jr.

After a jury trial, Kristina Cole was convicted of conspiracy to possess methamphetamine with the intent to sell in a drug-free zone in count one, conspiracy to possess methamphetamine with the intent to deliver in a drug-free zone in count two, facilitation of possession of methamphetamine with the intent to sell in a drug-free zone in count three, and possession of methamphetamine with the intent to deliver in a drug-free zone in count four. The jury found Montez Mullins guilty of facilitation of conspiracy to possess methamphetamine with the intent to sell in a drug-free zone in count one and facilitation of conspiracy to possess methamphetamine with the intent to deliver in a drug-free zone in count two. Defendant Cole received a total effective sentence of thirteen and one-half years in the Tennessee Department of Correction. Defendant Montez received a total effective sentence of thirty years as a career offender. On appeal, both Defendant Cole and Defendant Montez argue that the evidence at trial was insufficient for a rational juror to have found them guilty beyond a reasonable doubt. Additionally, Defendant Cole argues that the trial court erred by allowing Detective Gaia and Investigator Brown to speculate about the meaning of text messages between Defendant Cole and Defendant Jason White. After a thorough review of the facts and applicable case law, we affirm the judgments of the trial court.

Shelby County Court of Criminal Appeals 11/05/18
Melba P. Mershon, Surviving Spouse Of Rondell M. Mershon Ex Rel. Hyland M., Et Al. v. HPT TA Properties Trust Et Al.
M2018-00315-COA-R3-CV
Authoring Judge: Judge Andy D. Bennett
Trial Court Judge: Judge Deanna B. Johnson

A motor vehicle accident on the roadway abutting a truck stop resulted in the death of the plaintiff’s husband. The driver of the vehicle turning left into the truck stop was using the entrance meant for semi-trailer trucks and had a limited view of oncoming traffic due to a hill that crested a short distance ahead. The plaintiff filed a negligence claim against the truck stop owners and operators, asserting they created a hazardous condition by failing to place visible signage on their property directing passenger vehicles to the appropriate entrance. The defendants moved to dismiss the complaint, contending they owed no duty to the traveling public because the collision occurred on a municipal road, not on their property. The trial court granted the motion to dismiss, and the plaintiff appealed. We reverse the trial court’s judgment, holding that a balancing test is required to determine whether the defendants owed a duty to the plaintiff’s husband and that dismissing the complaint is premature at this stage of the proceedings.

Williamson County Court of Appeals 11/05/18
Narrell Pierce v. State of Tennessee
M2017-01268-CCA-R3-PC
Authoring Judge: Judge Norma McGee Ogle
Trial Court Judge: Judge Steve R. Dozier

The Petitioner, Narrell Pierce, filed for post-conviction relief from his convictions of attempted aggravated robbery, attempted second degree murder, employment of a firearm during the commission of a dangerous felony, and unlawful possession of a handgun by a felon. The Petitioner alleged that his trial counsel was ineffective by (1) failing to challenge the sufficiency of the evidence supporting his attempted aggravated robbery conviction, (2) failing to object to his co-defendant’s testimony, (3) depriving the Petitioner of his constitutional right to testify, and (4) failing to present a ballistics expert. After a hearing, the post-conviction court denied relief, and the Petitioner appeals. Upon review, we affirm the judgment of the post-conviction court.

Davidson County Court of Criminal Appeals 11/05/18
Robbie Hunter v. Kroger Limited Partnership I, et al.
W2017-01789-COA-R3-CV
Authoring Judge: Presiding Judge J. Steven Stafford
Trial Court Judge: Judge Rhynette N. Hurd

Plaintiff appeals the trial court’s order granting summary judgment to the defendant on a premises liability claim. Because the plaintiff offered no evidence to support an essential element of her premises liability claim at the summary judgment stage, we affirm.

Shelby County Court of Appeals 11/05/18
James Carroll v. State of Tennessee
M2017-01075-CCA-R3-PC
Authoring Judge: Judge Norma McGee Ogle
Trial Court Judge: Judge Robert L. Jones

The Petitioner, James Carroll, filed a petition seeking post-conviction relief from his convictions of aggravated assault and driving under the influence (DUI), second offense and effective four-year, six-month sentence. In the petition, the Petitioner alleged that (1) the State violated his due process rights by failing to collect and preserve evidence pursuant to State v. Ferguson, 2 S.W.3d 912 (Tenn. 1999), and that (2) his trial counsel was ineffective (a) by failing to challenge the State’s Ferguson violation and (b) by advising the Petitioner to waive his motion for new trial and his direct appeal. Upon review, we affirm the judgment of the post-conviction court.

Maury County Court of Criminal Appeals 11/05/18
Kerry Douglas Friesen v. Beverley Joy Friesen - concurring
E2017-00775-COA-R3-CV
Authoring Judge: Judge W. Neal McBrayer
Trial Court Judge: Judge Ward Jeffrey Hollingsworth

I concur in the affirmance of the Circuit Court for Hamilton County’s denial of the petition of Dr. Kerry Douglas Friesen for modification of his alimony obligation and the award of attorney’s fees to Ms. Beverley Joy Friesen. I write separately to address the authority under which the trial court awarded attorney’s fees.

Hamilton County Court of Appeals 11/05/18