Court Opinions

Format: 02/25/2020
Format: 02/25/2020
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
In Re James D., et al.
W2019-00863-COA-R3-PT
Authoring Judge: Judge Arnold B. Goldin
Trial Court Judge: Chancellor Walter L. Evans

This is a termination of parental rights case, wherein mother and stepfather petitioned to terminate father’s parental rights as to his two minor children on the grounds that he had abandoned the children by failing to visit and by failing to support them. Additionally, mother and stepfather petitioned that stepfather be allowed to adopt the children. The trial court denied the termination petition, finding that father had not willfully abandoned the children because mother had thwarted his attempts to visit and support them. On appeal, we find that father did willfully abandon the children. Accordingly, we reverse and remand for a determination of whether termination of father’s parental rights is in the best interests of the children. The trial court’s decision regarding stepfather’s petition to adopt the minor children must await the trial court’s determination on remand as to whether or not termination of father’s parental rights is in the best interest of the children.

Shelby County Court of Appeals 02/07/20
Cecilia Gonzalez v. Mauricio Gonzalez
W2018-01673-COA-R3-CV
Authoring Judge: Judge Kenny Armstrong
Trial Court Judge: Chancellor Jim Kyle

This is an appeal from a final decree of divorce. Husband/Appellant argues that the trial court erred in granting a divorce and in enforcing the parties’ Marital Dissolution Agreement (“MDA”). The basis of Husband’s argument is that the parties’ marriage is void as bigamous because Wife/Appellee was married at the time the parties married. The trial court held that Wife’s Chilean marriage was void ab initio, thus rendering the parties’ marriage valid. As such, the trial court granted Wife a divorce and enforced the MDA. Husband appeals. We vacate the amount of attorney’s fees awarded to Wife under the MDA due to a lack of findings concerning the amount and reasonableness thereof. The trial court’s order is otherwise affirmed.

Shelby County Court of Appeals 02/07/20
James A. Dunlap, Jr. v. Board of Professional Responsibility Of The Supreme Court of Tennessee
M2018-01919-SC-R3-BP
Authoring Judge: Justice Sharon G. Lee
Trial Court Judge: Senior Judge Don R. Ash

A Board of Professional Responsibility hearing panel decided that an attorney should be suspended for one year for violating Tennessee Rules of Professional Conduct 3.3 (candor toward the tribunal), 3.5(a) (impartiality and decorum of the tribunal), 8.4(c) (conduct involving dishonesty, fraud, deceit, or misrepresentation), and 8.4(d) (conduct that is prejudicial to the administration of justice). The attorney appealed, and the trial court affirmed. After careful review, we affirm the judgment of the trial court.

Davidson County Supreme Court 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
Metropolitan Life Insurance Company v. Dorothy L. Nelson, et al.
W2019-00654-COA-R3-CV
Authoring Judge: Judge Arnold B. Goldin
Trial Court Judge: Judge Jerry Stokes

This case involves a forcible entry and detainer action regarding a parcel of real property that was purchased at a foreclosure sale. The purchaser at foreclosure brought this detainer action against the previous owners of the property. The General Sessions Court ruled in favor of the purchaser, as did the Circuit Court pursuant to a de novo appeal. Although the prior owners now appeal to this Court to raise certain grievances, we affirm.

Shelby County Court of Appeals 02/05/20
Bank of New York Mellon v. Helen E. Chamberlain
M2019-00876-COA-R3-CV
Authoring Judge: Presiding Judge J. Steven Stafford
Trial Court Judge: Judge Hamilton V. Gayden, Jr.

Appellant homeowner appeals the trial court’s grant of summary judgment to the purchaser bank in an unlawful detainer action. Because the homeowner presented specific evidence to show a genuine dispute of material fact as to the whether certain mandatory provisions of the deed of trust were complied with prior to foreclosure, we reverse the judgment of the trial court.

Davidson County Court of 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
Donriel A. Borne v. Celadon Trucking Services, Inc.
W2018-01645-COA-R3-CV
Authoring Judge: Judge John W. McClarty
Trial Court Judge: Judge Robert Samual Weiss

The Tennessee Supreme Court remanded this matter to the trial court for a more definite statement as to the grounds for remittitur. The Court specifically noted that “the trial court’s failure to indicate the reasons for its suggested remittitur leaves us unable to determine whether the evidence preponderates against the remittitur and, consequently, unable to conduct a proper appellate review of the trial court’s remittitur decision.” The trial court responded, inter alia, that the plaintiff had improved his ability to lift and engage in repetitive activities, and that this proof, along with the plaintiff’s success at rehabilitation, strong work ethic, and desire to support his family, led the court to find that the plaintiff “will have some future income over the next 38 years which is the basis for reducing the loss of earning capacity from $1,455,000 to $1,100,000.” We find that a preponderance of the evidence does not support the decision of the trial court to remit the judgment to $1,100,000, and we, therefore reverse the judgment. We further find that based on the proof in the record that the judgment for loss of earning capacity damages should be remitted to $1,334,647. We, therefore, remit the jury’s verdict for loss of earning capacity damages to $1,334,647.

Shelby County Court of Appeals 02/04/20
Richard J. Hartigan et al. v. Arnold Brush
E2019-00262-COA-R3-CV
Authoring Judge: Judge Carma Dennis McGee
Trial Court Judge: Judge Frank V. Williams, III

This is an action to recover damages for a purported buyer’s breach of a contract to purchase improved residential real property. The trial court awarded Sellers damages calculated as the difference between the contract price and the amount for which the home sold one year after the breach. It also awarded Sellers and both realty companies prejudgment interest. On appeal, Appellant asserts the trial court erred in its determination of damages. He contends that, under the circumstances, an appraisal of the property performed at the time of breach demonstrates a substantially greater real market value than the sales price. Appellant also appeals the trial court’s calculation of the amount of prejudgment interest awarded to Sellers and the realty companies. Because the trial court made no findings of fact with respect to the fair market value of the property at the time of breach, we remand this matter for further findings and, if necessary, recalculation of the damages and prejudgment interest awarded to Sellers. We also remand this matter to the trial court to recalculate the amount of prejudgment interest to be awarded to the realty companies.

Roane County Court of Appeals 02/04/20
The Electric Employees' Civil Service and Pension Board of Metropolitan Government of Nashville and Davidson County, Tennessee v. Brian Mansell
M2019-00413-COA-R3-CV
Authoring Judge: Presiding Judge Frank G. Clements Jr.
Trial Court Judge: Chancellor Russell T. Perkins

This appeal arises from the decision of the Metropolitan Government of Nashville and Davidson County Electric Power Board to terminate a Nashville Electric Service (“NES”) cable splicer/working foreman. The foreman allegedly approved fraudulent timesheets for a Metropolitan Nashville Police Department officer, who performed traffic control at NES jobsites for a private contractor. After NES preferred charges against the foreman and suspended him without pay, the board referred the matter to an administrative law judge (“the ALJ”) for adjudication. Following a two-day administrative hearing, the ALJ made numerous findings of fact and conclusions of law in a 55-page report. The ALJ found that the foreman’s job description did not include verifying the accuracy of the timesheets, NES had not trained the foreman on how to verify the accuracy of the timesheets, and a majority of the inaccurate timesheets could be explained by NES’s common practice of rounding up hours at the end of an officer’s shift. Although there was evidence that the officer overstated his hours, the ALJ found the evidence was insufficient to establish the foreman knowingly approved any false timesheets. Accordingly, the ALJ recommended that the charges of termination be denied and that the foreman be reinstated without back pay. After reviewing the ALJ’s report, the board rejected his recommendation and approved NES’s termination of the foreman. However, the board did not make its own findings of fact or express disagreement with the ALJ’s findings. After the foreman filed his petition for judicial review, the trial court reviewed the administrative record and heard arguments of counsel. In its final order, the trial court concluded that “NES’s lack of proof and the apparent acceptance of time-approval practices combine here to demonstrate a lack of substantial and material evidence to uphold the Board’s decision to terminate.” Thus, the trial court reversed the board’s decision, adopted the ALJ’s Report in toto, and directed that the foreman “be reinstated, without backpay.” On appeal, the board contends the trial court applied incorrect principles of law and reweighed the evidence. We disagree. The Charter of the Metropolitan Government of Nashville and Davidson County requires the Electric Power Board to reduce its findings to writing when taking disciplinary action against an employee. In this case, the board rejected the recommendation of the ALJ without making alternative findings of fact to support or explain its reasoning. Thus, the only findings of fact, credibility determinations, and conclusions of law in the administrative record are those of the ALJ. Because the ALJ’s findings are supported by substantial and material evidence, we conclude that NES failed to prove by a preponderance of the evidence that the foreman knowingly approved false timesheets for the police officer. We also conclude that a reasoning mind could not have reached the same conclusion as the board under a proper application of the controlling legal principles. Accordingly, we affirm the decision of the trial court.

Davidson County Court of Appeals 02/04/20
In Re Benjamin P. et al.
E2019-01022-COA-R3-PT
Authoring Judge: Judge John W. McClarty
Trial Court Judge: Judge Robert D. Philyaw

This action involves the termination of a mother’s parental rights to her two minor children. Following a bench trial, the trial court found that clear and convincing evidence existed to support the statutory ground of the persistence of conditions which led to removal. The court also found that termination was in the best interest of the children. We affirm the trial court.

Hamilton County Court of Appeals 02/04/20
Robert Aaron White v. State of Tennessee
M2018-01861-CCA-R3-PC
Authoring Judge: Judge Camille R. McMullen
Trial Court Judge: Judge William R. Goodman, III

A Montgomery County Grand jury indicted the Petitioner, Robert Aaron White, for multiple offenses including first-degree, premeditated murder. A petit jury convicted the Petitioner of the lesser included offense of second-degree murder, and he received a sentence of twenty-three years imprisonment. State v. Robert Aaron White, No. M2011-01985-CCA-R3-CD, 2013 WL 2432372, at *1 (Tenn. Crim. App. June 4, 2013). Following denial of his appeal, the Petitioner filed a petition seeking post-conviction relief, alleging, inter alia, that trial counsel was ineffective based on the following grounds: (1) failure to investigate the victim’s criminal history and to introduce at trial evidence of the victim’s prior bad acts, (2) failure to investigate and introduce evidence of the prior bad acts of one of the State’s witnesses, and (3) failure to properly move the trial court for an order allowing the Petitioner to cover his tattoos at trial. The post-conviction court denied relief by written order, and the Petitioner appealed. Following our review, we affirm.

Montgomery County Court of Criminal Appeals 02/03/20
Taboris Ramon Jones v. State of Tennessee
M2018-00711-CCA-R3-PC
Authoring Judge: Judge D. Kelly Thomas, Jr.
Trial Court Judge: Judge Robert L. Jones

The Petitioner, Taboris Ramon Jones, appeals from the denial of his petition for post-conviction relief, wherein he challenged his jury conviction for possession with intent to sell 0.5 grams or more of cocaine in a drug-free school zone. On appeal, the Petitioner alleges that trial counsel provided ineffective assistance, that his sentence is unconstitutional, and that he was deprived of a fair trial on the basis of cumulative error. After a thorough review of the record, we affirm the judgments of the post-conviction court.

Maury County Court of Criminal Appeals 02/03/20
Johnny Peterson v. State of Tennessee
M2019-00390-CCA-R3-HC
Authoring Judge: Judge Robert W. Wedemeyer
Trial Court Judge: Judge John D. Wootten, Jr.

The Petitioner, Johnny Peterson, appeals the trial court’s summary dismissal of his petition for habeas corpus relief. The State has filed a motion asking this Court to affirm pursuant to Court of Criminal Appeals Rule 20. Said motion is hereby granted.

Trousdale County Court of Criminal Appeals 02/03/20
State of Tennessee v. Ziberia Carero
E2018000684-CCA-R3-CD
Authoring Judge: Judge Norma McGee Ogle
Trial Court Judge: Judge Steven Wayne Sword

A Knox County Criminal Court Jury convicted the Appellant, Ziberia Carero, of possession of one-half gram or more of cocaine with intent to sell, possession of one-half gram or more of cocaine with intent to deliver, possession of one-half ounce or more of marijuana with intent to sell, and possession of one-half ounce or more of marijuana with intent to deliver. The trial court merged the possession of cocaine convictions and merged the possession of marijuana convictions and sentenced the Appellant as a Range II, multiple offender to concurrent terms of twelve years and two years, respectively. On appeal, the Appellant contends that the evidence is insufficient to support his convictions, that the trial court erred by denying his motion to suppress evidence found during his traffic stop, and that the trial court abused its discretion by admitting rebuttal evidence of his subsequent drug-selling activities. Based upon the oral arguments, the record, and the parties’ briefs, we affirm the judgments of the trial court but remand the case to the trial court for correction of the judgments of conviction.

Knox County Court of Criminal Appeals 02/03/20
Tommy Lee Houser v. State of Tennessee
E2019-00210-CCA-R3-PC
Authoring Judge: Judge James Curwood Witt, Jr.
Trial Court Judge: Judge Steven Wayne Sword

The petitioner, Tommy Lee Houser, appeals the denial of his petition for post-conviction relief, which petition challenged his conviction of theft of property valued at $1,000 or more but less than $10,000, alleging that he was deprived of the effective assistance of counsel. Discerning no error, we affirm the denial of post-conviction relief.

Knox County Court of Criminal Appeals 02/03/20
State of Tennessee v. Derrick Jerome Miller
M2019-00214-CCA-R3-CD
Authoring Judge: Judge James Curwood Witt, Jr.
Trial Court Judge: Judge Gary McKenzie

The defendant, Derrick Jerome Miller, appeals his Putnam County Criminal Court jury conviction of reckless endangerment, arguing that the trial court erred by admitting into evidence a certain document, that the evidence was insufficient to support his conviction, and that the trial court erred by denying him probation. Discerning no error, we affirm.

Putnam County Court of Criminal Appeals 02/03/20