Court Opinions

Format: 08/05/2020
Format: 08/05/2020
State of Tennessee v. Curtis Lane
E2019-01401-CCA-R3-CD
Authoring Judge: Judge James Curwood Witt, Jr.
Trial Court Judge: Judge G. Scott Green

The defendant, Curtis Lane, appeals his 2019 Knox County Criminal Court guilty-pleaded conviction of second degree murder, arguing that the 22-year sentence is excessive. Discerning no error, we affirm.

Knox County Court of Criminal Appeals 07/21/20
State of Tennessee v. Joshua Bryan Johnson
M2019-00943-CCA-R3-CD
Authoring Judge: Judge Timothy L. Easter
Trial Court Judge: Judge William R. Goodman, III

After pleading guilty to several offenses, Defendant, Joshua Bryan Johnson, received an effective eight-year sentence to be served on probation. A violation of probation warrant was issued and the trial court fully revoked his probation after a hearing. Defendant filed a timely notice of appeal. After the notice of appeal was filed, Defendant filed a motion pursuant to Rule 35 of the Tennessee Rules of Appellate Procedure asking the trial court to modify his sentence to provide for inpatient rehabilitation. The trial court held a hearing on the motion and denied relief. Defendant filed an additional notice of appeal and this Court consolidated the appeals. After a review, we affirm the judgments of the trial court.

Montgomery County Court of Criminal Appeals 07/21/20
State of Tennessee v. Isaiah Kemp
E2019-01784-CCA-R3-CD
Authoring Judge: Judge James Curwood Witt, Jr.
Trial Court Judge: Judge James L. Gass

The defendant, Isaiah Kemp, appeals from the revocation of the probationary sentence imposed for his 2018 Sevier County Circuit Court guilty-pleaded conviction of passing worthless checks in an amount of $1,000 or more but less than $10,000, arguing that the trial court erred by ordering that he serve the balance of his sentence in confinement. Discerning no error, we affirm.

Sevier County 07/21/20
James Scarlett v. AA Properties, GP
E2019-01371-COA-R3-CV
Authoring Judge: Judge D. Michael Swiney, C.J.
Trial Court Judge: Judge Kristi M. Davis

This appeal arises from a default judgment in a detainer action. AA Properties, GP (“AA Properties”) filed a detainer warrant against James Scarlett (“Scarlett”) in the General Sessions Court for Knox County (“the General Sessions Court”) concerning real property of Scarlett’s that had been foreclosed upon. Default judgment was entered against Scarlett and a writ of possession was issued. Scarlett later filed a petition for writ of certiorari and supersedeas in the Circuit Court for Knox County (“the Circuit Court”). AA Properties filed a motion to dismiss, which the Circuit Court granted. Scarlett appeals, arguing that the warrant was deficient in that it failed to state specifically that personal service was attempted. Scarlett argues further that, under the Tennessee Rules of Civil Procedure, only five days elapsed from the posting of the warrant to the hearing, when per statute he was entitled to six days. We hold, first, that the warrant sufficiently reflected that personal service was attempted. We hold further that, in this instance, the Tennessee Rules of Civil Procedure did not apply in the General Sessions Court. We affirm.

Knox County Court of Appeals 07/21/20
Kendall Joy v. State of Tennessee
W2019-01437-CCA-R3-ECN
Authoring Judge: Judge Thomas T. Woodall
Trial Court Judge: Judge Carolyn W. Blackett

Petitioner, Kendall Joy, appeals the denial of his petition for a writ of error coram nobis in which he alleged that his guilty plea was not knowingly, voluntarily, and intelligently entered. After thoroughly reviewing the record and applicable authorities, we affirm the judgment of the error coram nobis court.

Shelby County Court of Criminal Appeals 07/20/20
State of Tennessee v. Pamela Moses
W2019-01219-CCA-R3-CD
Authoring Judge: Judge Alan E. Glenn
Trial Court Judge: Judge William B. Acree

The pro se Petitioner, Pamela Moses, appeals the trial court’s denial of her “Motion for Expiration of Sentence,” which the trial court essentially treated as a motion for writ of habeas corpus. Following our review, we affirm the denial of the motion.

Shelby County Court of Criminal Appeals 07/20/20
Dennis Judge v. State of Tennessee
M2019-00237-CCA-R3-PC
Authoring Judge: Judge Robert W. Wedemeyer
Trial Court Judge: Judge Forest A. Durard, Jr.

The Petitioner, Dennis Judge, pleaded guilty to sexual battery by an authority figure, and the trial court sentenced him to the agreed sentence of four years of Community Corrections. More than a year later, the Petitioner filed a motion requesting that the trial court allow him to file an untimely petition for post-conviction relief and also a petition for post-conviction relief. After a hearing, the post-conviction court found that due process did not require a tolling of the statute of limitations, and it dismissed the petition. After a thorough review of the record and relevant authorities, we affirm the postconviction court’s judgment.

Moore County Court of Criminal Appeals 07/20/20
State of Tennessee v. Marlon William Cotham
M2019-00929-CCA-R3-CD
Authoring Judge: Judge Alan E. Glenn
Trial Court Judge: Judge Jill Bartee Ayers

The Defendant, Marlon William Cotham, was convicted of aggravated robbery, a Class B felony, and sentenced to nine years in the Department of Correction. On appeal, he argues that the evidence is insufficient to sustain his conviction, and the trial court erred in imposing a sentence of nine years. After review, we affirm the judgment of the trial court.

Robertson County Court of Criminal Appeals 07/20/20
John Thomas Link v. Royce Hinson, Et Al.
M2019-00483-COA-R3-CV
Authoring Judge: Judge Kenny Armstrong
Trial Court Judge: Judge Suzanne Lockert-Mash

Appellant sought a prescriptive easement over an existing road across Appellees’ property. The trial court granted Appellees’ Tennessee Rule of Civil Procedure 41.02(2) motion for involuntary dismissal at the close of Appellant’s proof and held that Appellant’s occasional use of the road to access his property for hunting purposes did not satisfy his burden of proof to establish an easement by prescription. Discerning no error, we affirm.

Humphreys County Court of Appeals 07/20/20
Cook's Roofing, Inc. v. Hartford Underwriters Insurance Company
W2019-00271-COA-R3-CV
Authoring Judge: Judge Carma Dennis McGee
Trial Court Judge: Chancellor JoeDae L. Jenkins

This appeal involves retrospective insurance premiums for an assigned risk workers’ compensation insurance policy. The insured employer is a roofing contractor. The insurance company conducted a retrospective premium audit and determined that the roofing contractor owed retrospective premiums based on the fact that its primary subcontractor was uninsured during a portion of the policy period. The roofing contractor refused to pay the increased premium, so the insurance company canceled the insurance policy. The roofing contractor filed this lawsuit against the insurance company, alleging negligence, promissory estoppel, and violation of the Tennessee Consumer Protection Act. The insurance company filed a counterclaim for the unpaid balance owed for the premiums under the policy. The insurance company filed a motion for summary judgment on all claims asserted by the roofing contractor and on its own counterclaim. The trial court granted the motion for summary judgment, dismissed the claims asserted by the roofing company, and entered judgment in favor of the insurance company and against the roofing contractor for $66,212 plus prejudgment interest. However, the trial court denied the insurance company’s subsequent motion to enforce the judgment against the two individuals who operated the roofing company and served as the sole officers and shareholders of the corporation. Both parties raise issues on appeal. For the following reasons, we affirm the decision of the chancery court in part, we reverse in part, and we remand for further proceedings consistent with this opinion.

Shelby County Court of Appeals 07/20/20
In Re Ne'Khiya M.
W2019-02223-COA-R3-PT
Authoring Judge: Judge Arnold B. Goldin
Trial Court Judge: Chancellor Jim Kyle

This is a termination of parental rights case. Mother and stepfather petitioned the trial court to terminate father’s parental rights as to mother’s and father’s minor child on the ground that he had willfully abandoned the child pursuant to Tennessee Code Annotated section 36-1-102(1)(A). Additionally, mother and stepfather petitioned that stepfather be allowed to adopt the child. While it was undisputed that father had abandoned the child, based on his failure to support or visit the child, the trial court found that father had attempted to establish a child support obligation against himself and that he had made numerous, yet unsuccessful, attempts to contact mother in order to visit the child following his release from prison. Accordingly, the trial court found that father’s abandonment was not willful and denied the termination petition. We affirm.

Shelby County Court of Appeals 07/20/20
State of Tennessee v. Barbara Nicole Napper
M2019-00623-CCA-R3-CD
Authoring Judge: Judge Timothy L. Easter
Trial Court Judge: Judge Dee David Gay

Barbara Nicole Napper, Defendant, was indicted for two counts of selling heroin in a school zone. She pled guilty to two reduced charges of selling heroin without the school-zone enhancement. She was sentenced to ten years for each conviction, to be served consecutively to each other. The sentences were suspended to community corrections. Multiple violation warrants were filed after Defendant tested positive for drugs. Prior to the disposition of the alleged violations, Defendant was indicted for introducing heroin into a penal facility. The State filed a motion seeking resentencing on Defendant’s original sentence of twenty years. After a hearing on the violations, the trial court revoked Defendant’s community corrections sentence and increased the sentence on each underlying offense by two years, for a total effective sentence of twenty-four years. Defendant timely appeals the revocation of her community corrections sentence and the trial court’s decision to increase her underlying sentence. After a review, we affirm the judgments of the trial court.

Sumner County Court of Criminal Appeals 07/20/20
State of Tennessee v. Dennis Lee Seale
M2019-01913-CCA-R9-CD
Authoring Judge: Judge Robert W. Wedemeyer
Trial Court Judge: Judge Michael Binkley

The Defendant, Dennis Lee Seale, filed a Rule 9 interlocutory appeal seeking our review of the trial court’s ruling that some of the prosecution’s out-of-state witnesses could testify at trial via two-way video conferencing technology. After a hearing, the trial court ruled that four of the prosecution’s witnesses could testify via teleconferencing rather than in person. The Defendant filed an application for an interlocutory appeal, which the State did not oppose, and which the trial court granted. This court determined that this application met the criteria of Rule 9, and granted the appeal. On appeal, the Defendant contends that the trial court erred because its ruling violated his rights pursuant to the Confrontation Clause of both the Federal and our State constitution. After a thorough review of the record and applicable authorities, we conclude that this case, as one of first impression in this state, provides this court the opportunity to hold that the standard as articulated in Maryland v. Craig, 497 U.S. 836 (1990), should extend to two-way video conferencing technology. As such we reverse and remand this case to the trial court for a case-specific and witness-specific determination of whether the denial of the Defendant’s right to confront witnesses is necessary to further an important public interest.

Lewis County Court of Criminal Appeals 07/20/20
State of Tennessee v. Jason Doty
W2018-00701-CCA-R3-CD
Authoring Judge: Judge Alan E. Glenn
Trial Court Judge: Judge Lee V. Coffee

The Defendant, Jason Doty, was indicted by the Shelby County Grand Jury in count one for aggravated child abuse and in count two for “aggravated child neglect or endangerment” based on injuries that occurred to his three-month-old son. Following a jury trial, the Defendant was convicted of the lesser offense of reckless aggravated assault, a Class D felony, in count one and the indicted offense of “aggravated child neglect or endangerment,” a Class A felony, in count two. After merging the reckless aggravated assault conviction into the aggravated child neglect or endangerment conviction, the trial court sentenced the Defendant as a Range I, standard offender to twenty-five years at 85 percent in the Department of Correction. The Defendant raises the following five issues on appeal: (1) Whether the trial court issued incomplete and misleading jury instructions that violated his constitutional right to a unanimous jury verdict; (2) Whether the evidence is sufficient to sustain his conviction; (3) Whether the trial court erred by not allowing the Defendant to cross-examine the State’s child abuse medical expert about a prior dependency and neglect case involving the victim in which a juvenile court magistrate had found the expert’s opinion less credible than the opinion of the opposing expert witness; (4) Whether the jury’s verdicts finding the Defendant guilty of both reckless aggravated assault and aggravated child neglect are mutually exclusive; and (5) Whether the trial court imposed an excessive sentence. Following our review, we conclude that the conviction in count two must be reversed and remanded for a new trial because the Defendant’s right to a unanimous verdict was violated. The Defendant’s conviction for reckless aggravated assault is affirmed.

Shelby County Court of Criminal Appeals 07/17/20
State of Tennessee v. Billy Mack Jones
W2019-01759-CCA-R3-CD
Authoring Judge: Judge James Curwood Witt, Jr.
Trial Court Judge: Judge R. Lee Moore, Jr.

The defendant, Billy Mack Jones, appeals his Dyer County Circuit Court jury conviction of facilitating the sale of a Schedule II substance, arguing that the evidence was insufficient to establish his identity as the perpetrator. Because the record is insufficient to facilitate our review, we affirm the judgment of the trial court.

Dyer County Court of Criminal Appeals 07/17/20
State of Tennessee v. Curtis Reed Hosendove
M2019-01610-CCA-R3-CD
Authoring Judge: Judge Robert H. Montgomery, Jr.
Trial Court Judge: Judge Angelita Blackshear Dalton

The Defendant, Curtis Reed Hosendove, pleaded guilty as a Range II, multiple offender to making a false report, a Class D felony. See T.C.A. § 39-16-502 (2018). Pursuant to a plea agreement, the Defendant received a four-year sentence, and the trial court was to determine the manner of service. The trial court ordered the Defendant to serve his sentence in confinement. On appeal, the Defendant contends that the court committed reversible error by receiving evidence in the form victim impact statements. Although we conclude that the victim impact statements were irrelevant to the Defendant’s conviction for making false report, the error was harmless. We affirm the judgment of the trial court.

Davidson County Court of Criminal Appeals 07/17/20
Kenneth Cole v. State of Tennessee
W2019-01620-CCA-R3-PC
Authoring Judge: Judge Robert H. Montgomery, Jr.
Trial Court Judge: Judge Joe H. Walker, III

The Petitioner, Kenneth Cole, appeals from the Tipton County Circuit Court’s denial of his petition for post-conviction relief from his guilty plea conviction for violation of the sex offender registry and his six-year, Range III sentence. He contends that the post-conviction court erred in denying his claim that he received the ineffective assistance of counsel in the conviction proceedings. We affirm the judgment of the post-conviction court.

Tipton County Court of Criminal Appeals 07/16/20
State of Tennessee v. James Bennett
W2019-00937-CCA-R3-CD
Authoring Judge: Judge Alan E. Glenn
Trial Court Judge: Judge J. Robert Carter, Jr.

The Defendant, James Bennett, was convicted by a Shelby County Criminal Court jury of theft of property over $10,000, a Class C felony, and was sentenced to seven years in the Department of Correction. On appeal, the Defendant argues that the trial court erred in admitting evidence of his prior bad acts, and that the evidence is insufficient to sustain his conviction. After review, we affirm the judgment of the trial court.

Shelby County Court of Criminal Appeals 07/16/20
Raymond Denton v. State of Tennessee
W2019-00500-CCA-R3-PC
Authoring Judge: Judge Norma McGee Ogle
Trial Court Judge: Judge Chris Craft

The Petitioner, Raymond Denton, appeals the Shelby County Criminal Court’s denial of his petition for post-conviction relief, seeking relief from his convictions of aggravated rape, aggravated burglary, and physical abuse of an impaired person and resulting effective ninety-year sentence. On appeal, the Petitioner claims that he received the ineffective assistance of counsel because trial counsel failed to obtain an expert to rebut the State’s expert regarding penetration; failed to object to medical opinions given by the victim’s granddaughter, who was not an expert; and failed to object to the prosecutors’ improper closing arguments. Based upon the record and the parties’ briefs, we affirm the judgment of the post-conviction court.

Shelby County Court of Criminal Appeals 07/16/20
Zula Wortham v. Kroger Limited Partnership I ET AL.
W2019-00496-COA-R3-CV
Authoring Judge:
Trial Court Judge:

Defendant grocery store appeals a jury verdict against it after a shopper fell in its store while operating a three-wheeled cart. The grocery store argues that the trial court erred in denying its motion for directed verdict, in granting summary judgment to a third-party defendant, and in not granting a new trial or remittitur of the substantial verdict. Because the grocery store has not met its burden to show reversible error, we affirm.

Shelby County Court of Appeals 07/16/20
State of Tennessee v. Shannon Daniels
E2019-01602-CCA-R3-CD
Authoring Judge: Judge Norma McGee Ogle
Trial Court Judge: Judge E. Shayne Sexton

The Appellant, Shannon Daniels, appeals the Campbell County Criminal Court’s revocation of her probation and ordering that she serve the balance of her effective ten-year sentence in confinement. Based upon the record and the parties’ briefs, we affirm the judgment of the trial court.

Campbell County Court of Criminal Appeals 07/16/20
Antonio Howard v. State of Tennessee
W2018-00786-SC-R11-PC
Authoring Judge: Justice Roger A. Page
Trial Court Judge: Judge James M. Lammey, Jr.

In this post-conviction appeal, we clarify the appropriate standard to be applied when a criminal defendant claims ineffective assistance of counsel based on trial counsel’s failure to file a timely motion for new trial. The petitioner, Antonio Howard, was convicted of several offenses, including aggravated rape, especially aggravated robbery, aggravated robbery, and aggravated assault. Following the conviction and sentencing, the petitioner’s trial counsel admittedly failed to file a timely motion for new trial. Consequently, the petitioner was found to have waived several issues on direct appeal. The petitioner filed a petition seeking post-conviction relief claiming, among other things, that counsel was ineffective for failing to file a timely motion for new trial. However, the post-conviction court denied his request, concluding that trial counsel was deficient but that the petitioner was not prejudiced by trial counsel’s deficiency. The Court of Criminal Appeals agreed with the post-conviction court that counsel was deficient for failing to file a timely motion for new trial but, relying on Wallace v. State, 121 S.W.3d 652, 658 (Tenn. 2003), held that the petitioner was presumptively prejudiced by the deficiency. The intermediate appellate court, therefore, concluded that the petitioner was entitled to post-conviction relief in the form of a delayed appeal. We granted the State’s application for permission to appeal to address whether the Court of Criminal Appeals correctly determined that the petitioner was presumptively prejudiced under these circumstances. We conclude that trial counsel’s failure to file a timely motion for new trial does not require a presumption of prejudice, overruling this Court’s previous decision in Wallace. We have determined, therefore, that the post-conviction court properly considered whether the petitioner was prejudiced by his trial counsel’s deficiency, and we find no error in the post-conviction court’s conclusion that he was not. Accordingly, we reverse the judgment of the Court of Criminal Appeals and reinstate the judgment of the post-conviction court denying
post-conviction relief.

Shelby County Supreme Court 07/16/20
Danny Jay Branam, Jr. v. State of Tennessee
E2019-01149-CCA-R3-PC
Authoring Judge: Judge J. Ross Dyer
Trial Court Judge: Judge G. Scott Green

The petitioner, Danny Jay Branam, Jr., appeals the denial of his post-conviction petition, arguing the post-conviction court erred in finding he received the effective assistance of counsel at trial and on appeal. Following our review, we affirm the denial of the petition.

Knox County Court of Criminal Appeals 07/16/20
State of Tennessee v. Tony Lynn Nix
E2019-00415-CCA-R3-CD
Authoring Judge: Judge J. Ross Dyer
Trial Court Judge: Judge G. Scott Green

A Knox County jury convicted the defendant, Tony Lynn Nix, of aggravated robbery, and the trial court imposed a sentence of nine years in confinement. On appeal, the defendant challenges the sufficiency of the evidence to support his conviction and requests plain error review of improper statements by the prosecutor. After reviewing the record and considering the applicable law, we affirm the judgment of the trial court.

Knox County Court of Criminal Appeals 07/15/20
State of Tennessee v. David Rivera
E2019-01807-CCA-R3-CD
Authoring Judge: Judge Camille R. McMullen
Trial Court Judge: Judge Rex Henry Ogle

Following the denial of his motion to suppress, the Defendant, David Rivera, entered a guilty plea to driving under the influence of an intoxicant (DUI), fourth offense, but properly reserved, in accordance with Tennessee Rule of Criminal Procedure 37(b)(2)(A), a certified question of law regarding the legality of his traffic stop. Because the Defendant’s traffic stop was supported by probable cause, or at a minimum, reasonable suspicion, we affirm the judgment of the trial court.

Sevier County Court of Criminal Appeals 07/15/20