Court Opinions

Format: 09/14/2019
Format: 09/14/2019
State of Tennessee v. Osei Sorrell
E2018-00831-CCA-R3-CD
Authoring Judge: Judge Robert W. Wedemeyer
Trial Court Judge: Judge Don W. Poole

A Hamilton County jury convicted the Defendant, Osei Sorrell, of attempted second degree murder, aggravated assault, and reckless endangerment. The trial court dismissed the aggravated assault conviction in its capacity as 13th juror and imposed an effective
nine-year sentence for the remaining convictions. The Defendant raises the following issues on appeal: (1) the jury venire did not represent a cross-section of Hamilton County; (2) the trial court erred when it denied his motion for new trial based on newly discovered evidence that would have resulted in a different verdict; (3) the trial court erred in declaring the victim unavailable to testify; (4) the trial court erred when it limited the proof of the victim’s gang affiliation; (5) Agent Hudson was not qualified as an expert on firearms identification; and (6) the trial court erred when it allowed the victim’s prior out of court identification of the Defendant as the shooter to be admitted. After a thorough review of the record and applicable law, we affirm the trial court’s judgments.

Hamilton County Court of Criminal Appeals 08/22/19
State of Tennessee v. Tosha Marie Silcox
E2018-02206-CCA-R3-CD
Authoring Judge: Judge Timothy L. Easter
Trial Court Judge: Judge David Reed Duggan

Defendant, Tosha Marie Silcox, appeals from the trial court’s revocation of her probation in November 2018. Without presenting the issue to the trial court, Defendant now challenges the trial court’s 2016 probation revocation order, which modified Defendant’s original 2014 sentence. The modified probation order required Defendant to serve a sentence of split confinement for a period of one year and extended Defendant’s probation. With regard to the 2018 revocation, Defendant argues that the State failed to prove that Defendant disobeyed a lawful order of the probation officer and that she used “abusive, threatening, or intimidating behavior” towards her probation officer. After hearing oral argument and conducting a full review of the record, we affirm the judgment of the trial court.

Blount County Court of Criminal Appeals 08/22/19
In Re Kingston A. B.
M2018-02164-COA-R3-PT
Authoring Judge: Presiding Judge J. Steven Stafford
Trial Court Judge: Judge Ross H. Hicks

Father and Step-Mother filed a petition to terminate Mother’s parental rights on the grounds of willful failure to visit and support. The trial court denied termination based upon willful failure to visit, but found sufficient evidence in favor of willful failure to support. The trial court, however, found that termination was not in the child’s best interest and therefore denied the petition to terminate Mother’s parental rights. Because we conclude that clear and convincing evidence does not support the ground of willful failure to support, we reverse the trial court’s finding of a ground to support termination. As such, we affirm the trial court’s denial of the termination petition.

Montgomery County Court of Appeals 08/21/19
Gregory Webster, Et Al.v. David M. Isaacs
M2018-02066-COA-R3-CV
Authoring Judge: Judge Andy D. Bennett
Trial Court Judge: Judge Joseph P. Binkley, Jr.

The trial court granted the defendant’s motion for summary judgment and dismissed the plaintiffs’ negligence suit on the grounds that the plaintiffs failed to serve the defendant with process within the one-year statute of limitations. On appeal, we conclude that the trial court did not err in denying the plaintiffs’ motion to enlarge the time frame for obtaining new service of process or in granting the defendant’s motion for summary judgment. We, therefore, affirm the decision of the trial court in all respects.  

Davidson County Court of Appeals 08/21/19
Richard Keith, Et Al. v. Maury County Board of Zoning Appeals
M2017-02542-COA-R3-CV
Authoring Judge: Judge W. Neal McBrayer
Trial Court Judge: Judge David L. Allen

After receiving a cease and desist letter from a local zoning official forbidding them from hosting an off-road event on their property, landowners appealed to the board of zoning appeals. The board denied their application. And landowners sought review by filing an unverified petition for writ of certiorari in the chancery court. On the board’s motion, the court dismissed the petition for lack of subject matter jurisdiction. On appeal, landowners argue that their petition in actuality seeks declaratory relief. We conclude that landowners were challenging a quasi-judicial decision of a local board of zoning appeals and that a petition for writ of certiorari was the proper method for seeking review. Because landowners’ petition was not verified, we affirm the dismissal.   

Maury County Court of Appeals 08/21/19
State of Tennessee v. Quintis McCaleb
E2017-01381-SC-R11-CD
Authoring Judge: Chief Justice Jeffrey S. Bivins
Trial Court Judge: Judge Barry Steelman

We granted permission to appeal to determine whether the Court of Criminal Appeals misapplied the standard of review applicable to trial court decisions to admit or exclude evidence. In this case, the trial court determined that the defendant’s statements during a post-polygraph interview were inadmissible pursuant to Tennessee Rule of Evidence 403. On interlocutory appeal, the Court of Criminal Appeals concluded that the trial court abused its discretion by excluding the statements. The Court of Criminal Appeals reversed the trial court’s ruling and remanded the matter for further proceedings. We granted the defendant’s application for permission to appeal. We now hold that the Court of Criminal Appeals erred when it concluded that the trial court abused its discretion. Accordingly, we reverse the judgment of the Court of Criminal Appeals and remand this matter to the trial court for further proceedings consistent with this opinion.

Hamilton County Supreme Court 08/21/19
State of Tennessee v. David B. Garnder
M2018-00289-CCA-R3-CD
Authoring Judge: Judge Thomas T. Woodall
Trial Court Judge: Judge Jill Bartee Ayers

Petitioner, David B. Gardner, appeals the denial of his petition for a writ of error coram nobis based upon newly discovered evidence. After thoroughly reviewing the record and applicable authorities, we affirm the judgment of the error coram nobis court.

Robertson County Court of Criminal Appeals 08/21/19
Anderson Lumber Company, Inc. v. William Kinney Et Al.
E2019-01427-COA-T10B-CV
Authoring Judge: Judge Richard H. Dinkins
Trial Court Judge: Judge David Reed Duggan

This is an interlocutory appeal as of right, pursuant to Rule 10B of the Rules of the Supreme Court of Tennessee, filed by William Kinney and Margaret Kinney (“Defendants”), seeking to recuse the trial judge. The case arises out of the indebtedness of Defendant’s business, Kinney Custom Interiors, to the plaintiff, Anderson Lumber Company, Inc. (“Plaintiff”). Having reviewed the petition for recusal appeal filed by Defendants, and finding no error, we affirm.

Blount County Court of Appeals 08/21/19
State of Tennessee v. James Mitchell
M2018-00368-CCA-R3-CD
Authoring Judge: Judge Thomas T. Woodall
Trial Court Judge: Judge Stella L. Hargrove

Defendant, James Mitchell, entered a plea of guilty to possession with intent to sell more than .5 grams of methamphetamine. The trial court sentenced Defendant as a Range I, standard offender, to eight years. Defendant attempted to reserve a certified question of law under Rule 37(b)(2)(A) of the Tennessee Rules of Criminal Procedure, challenging the trial court’s denial of his motion to suppress the evidence seized after a search of his person that occurred when he arrived by car at another person’s home which was being searched pursuant to a search warrant. After review, we conclude that this Court does not have jurisdiction to address the certified question because the certification did not meet the requirements of State v. Preston, 759 S.W.2d 647 (Tenn. 1988). The appeal is, therefore, dismissed.

Wayne County Court of Criminal Appeals 08/21/19
State of Tennessee v. Douglas Edward Christian
M2018-00320-CCA-R3-CD
Authoring Judge: Judge Robert L. Holloway, Jr.
Trial Court Judge: Judge Vanessa Jackson

Defendant, Douglas Edward Christian, was convicted of Class B felony possession of .5 grams or more of methamphetamine, a Schedule II controlled substance, with the intent to sell or deliver (Count 1); Class B felony possession of .5 grams or more of cocaine, a Schedule II controlled substance, with the intent to sell or deliver (Count 2); Class D felony possession of a Schedule III controlled substance, Bu[p]reno[r]phine, with the intent to sell or deliver (Count 3); and Class A misdemeanor possession of marijuana, a Schedule VI controlled substance (Count 4). The trial court sentenced Defendant to an effective term of twenty-years as a Range II offender. On appeal, Defendant claims that the trial court “erroneously used foreign judgments” to sentence him as a Range II offender, considered unsubstantiated information in sentencing him, wrongly denied pretrial jail credits, and erred by denying Defendant his right to a speedy trial. After a thorough review of the record and briefs, we affirm the judgments of the trial court.

Coffee County Court of Criminal Appeals 08/21/19
State of Tennessee v. Tyson B. Dodson
M2018-01087-CCA-R3-CD
Authoring Judge: Judge D. Kelly Thomas, Jr.
Trial Court Judge: Judge Jill Bartee Ayers

The Defendant, Tyson B. Dodson, pled guilty to burglary, failure to appear, domestic assault, and vandalism valued at $1000 or less. After entering a guilty plea, the trial court imposed a sentence of three years, with eleven months and twenty-nine days to be served in confinement and the remainder of the sentence to be served under supervised probation. In addition, the Defendant was ordered to pay restitution in the amount of $999. On appeal, the Defendant contends that the trial court abused its discretion by altering the terms of the plea agreement and ordering restitution at the sentencing hearing and that the Defendant was denied his constitutional right to due process because the trial court failed to ensure that the Defendant had notice that restitution would be addressed at the sentencing hearing. Following our review, we reverse the order setting the restitution amount and remand for a restitution hearing, at which the trial court shall consider Defendant’s financial resources and ability to pay and determine the proper amount and schedule of restitution payments. In all other respects, the judgments are affirmed.

Robertson County Court of Criminal Appeals 08/21/19
Lee D. Watts v. State of Tennessee
M2018-01379-CCA-R3-PC
Authoring Judge: Judge James Curwood Witt, Jr.
Trial Court Judge: Judge Ross H. Hicks

The petitioner, Lee D. Watts, appeals the denial of his petition for post-conviction relief, which petition challenged his 2015 convictions of first degree felony murder and especially aggravated robbery, alleging that he was deprived of the effective assistance of counsel. Discerning no error, we affirm the denial of post-conviction relief.

Montgomery County Court of Criminal Appeals 08/21/19
State of Tennessee v. Zackary James Earl Ponder
M2018-00998-CCA-R3-CD
Authoring Judge: Judge James Curwood Witt, Jr.
Trial Court Judge: Judge David D. Wolfe

The defendant, Zackary James Earl Ponder, appeals his Stewart County Circuit Court jury convictions of first degree premeditated murder and aggravated assault, claiming that the trial court erred by admitting into evidence three photographs of the victim, by refusing to allow the defendant pretrial access to the criminal history of a State witness, by limiting his cross-examination of the investigating officer, by permitting the prosecutor to express his personal opinion during closing argument, and by failing to address “the fine portion of the defendant’s sentence.” He also challenges the sufficiency of the evidence for his conviction of first degree murder. Although we conclude that portions of the State’s closing argument were improper, we deem the error harmless. We detect clerical error in the judgment for the defendant’s conviction of aggravated assault that necessitates the entry of a corrected judgment for that count. Otherwise, the judgments of the trial court are affirmed.

Stewart County Court of Criminal Appeals 08/21/19
David N. Shaver v. State of Tennessee
E2018-01862-CCA-R3-PC
Authoring Judge: Judge Robert L. Holloway, Jr.
Trial Court Judge: Judge James L. Gass

Petitioner, David N. Shaver, appeals the Grainger County Circuit Court’s denial of his petition for post-conviction relief. Petitioner asserts that he received ineffective assistance of counsel in connection with his guilty plea proceedings. Specifically, he contends that trial counsel failed to properly explain the terms of the plea agreement and failed to conduct a proper investigation into the charge against Petitioner. After a thorough review of the record and the applicable law, we affirm the judgment of the post-conviction court.

Grainger County Court of Criminal Appeals 08/20/19
State of Tennessee v. Robert Diggs
E2018-01755-CCA-R3-CD
Authoring Judge: Judge Robert L. Holloway, Jr.
Trial Court Judge: Judge James F. Goodwin, Jr.

Robert Diggs, Defendant, pled guilty to two counts of sale of a Schedule III controlled substance within a drug-free zone (counts one and five), two counts of delivery of a Schedule III controlled substance within a drug-free zone (counts two and six), and one count of maintaining a dwelling where a controlled substance was kept or sold (count seven). The trial court ordered Defendant to serve concurrent sentences of two years in the Tennessee Department of Correction for the convictions in counts one and five. No sentence was imposed in counts two and six. On appeal, Defendant argues that the trial court erred by ordering him to serve his sentence in the Tennessee Department of Correction because the trial court incorrectly determined that his convictions under the Drug-Free School Zone Act (“DFSZ Act”) made him ineligible for community corrections. After a thorough review of the facts and applicable case law, we conclude that the trial court properly determined that Defendant was not eligible for community corrections because Defendant was convicted under the DFSZ Act and we affirm the convictions.

Sullivan County Court of Criminal Appeals 08/20/19
State of Tennessee v. Mimi Barrett
E2018-01643-CCA-R3-CD
Authoring Judge: Judge Robert L. Holloway, Jr.
Trial Court Judge: Judge James F. Goodwin, Jr.

Mimi Barrett, Defendant, pled guilty to three counts of sale of a Schedule III controlled substance within a drug-free zone (counts one, three, and five), three counts of delivery of a Schedule III controlled substance within a drug-free zone (counts two, four, and six), and one count of maintaining a dwelling where a controlled substance was kept or sold (count seven). The trial court ordered Defendant to serve concurrent sentences of two years in the Tennessee Department of Correction for each conviction. On appeal, Defendant argues that the trial court erred by ordering her to serve her sentence in the Tennessee Department of Correction because the trial court incorrectly determined that her convictions under the Drug-Free School Zone Act (“DFSZ Act”) made her ineligible for community corrections. After a thorough review of the facts and applicable case law, we conclude that the trial court properly denied community corrections on the ground that Defendant was convicted under the Drug-Free School Zone Act. We affirm the judgments of the trial court.

Sullivan County Court of Criminal Appeals 08/20/19
Tammy L. Edwards v. Charles Edwards, Jr.
E2019-00518-COA-R3-CV
Authoring Judge: Judge Carma Dennis McGee
Trial Court Judge: Judge Gregory S. McMillan

This appeal concerns a post-divorce proceeding for contempt. Husband filed a petition for contempt alleging that Wife had failed to pay certain payments ordered by the trial court. The trial court dismissed Husband’s petition. Due to the deficiencies in Husband’s brief, we find that he has waived consideration of any issues on appeal and hereby dismiss the appeal.

Knox County Court of Appeals 08/19/19
Pamela Dallas v. Shelby County Board of Education
W2018-01661-COA-R3-CV
Authoring Judge: Presiding Judge J. Steven Stafford
Trial Court Judge: Chancellor JoeDae L. Jenkins

Dismissed teacher filed an action against the school board under the Teacher Tenure Act, or alternatively, under the Continuing Contract Law. The board of education filed a motion for summary judgment as to both claims, which the trial court ultimately granted. We conclude that the trial court did not err in granting summary judgment under the Teacher Tenure Act because the plaintiff teacher was not tenured at the time of her dismissal. However, we reverse the grant of summary judgment on the plaintiff teacher’s claim under the Continuing Contract Law.

Shelby County Court of Appeals 08/19/19
State of Tennessee v. Ronald Ailey
E2017-02359-CCA-R3-CD
Authoring Judge: Judge D. Kelly Thomas, Jr.
Trial Court Judge: Judge Alex E. Pearson

The Defendant, Ronald Ailey, was convicted by a jury of two counts of aggravated assault. Thereafter, the trial court imposed concurrent terms of four and one-half years, denied the Defendant’s request for judicial diversion, and ordered the Defendant to serve six months’ incarceration before being released on supervised probation. Upon the Defendant’s motion for new trial, he argued that he received ineffective assistance of counsel due to trial counsel’s failure to call exculpatory witnesses, failure to investigate and prepare for trial, failure to impeach certain State’s witnesses, failure to prepare the Defendant to testify, failure to object to improper questioning of the Defendant on crossexamination, and failure to adequately advise the Defendant during plea negotiations. On appeal, the Defendant contends that the trial court erred by denying him judicial diversion or total probation and by applying certain enhancement factors. He also challenges the trial court’s ruling that he received the effective assistance of counsel at trial. Upon a thorough review of the record and the applicable law, we affirm the judgments of the trial court.

Hamblen County Court of Criminal Appeals 08/19/19
State of Tennessee v. Jeffrey Allen Judkins
M2018-00704-CCA-R3-CD
Authoring Judge: Judge D. Kelly Thomas, Jr.
Trial Court Judge: Judge Robert L. Jones

The Defendant, Jeffrey Allen Judkins, appeals his jury conviction for aggravated robbery, for which he received a sentence of
twenty-two years’ incarceration. In this direct appeal, the Defendant alleges that the evidence was insufficient to establish his participation in the robbery. Following our review of the record and the applicable authorities, we affirm the judgment of the trial court.

Lawrence County Court of Criminal Appeals 08/19/19
B.W. Byrd Metal Fabricators, Inc. v. Alcoa, Inc.
E2018-01750-COA-R3-CV
Authoring Judge: Judge John W. McClarty
Trial Court Judge: Judge William T. Ailor

This appeal involves a lease agreement for the storage of a friction welding/joiner machine. The original agreement was entered into by John F. Humphrey Metal Fabricators, Inc. and Aluminum Company of America. B. W. Byrd Metal Fabricators, Inc. is the successor in interest to John F. Humphrey Metal Fabricators, Inc. and Aluminum Company of America was formerly known as Alcoa, Inc. The trial court awarded to the plaintiff rent payments for the months of May and June 2012, plus interest at 1.5% per month, but it found that the plaintiff had failed to submit invoices to put the defendant on notice of a debt and neglected to mitigate its damages. The plaintiff appeals. We affirm in part and reverse in part and remand for further proceedings.

Knox County Court of Appeals 08/19/19
Jeremy Paul Barmmer v. Joy Denise Staininger
E2018-02058-COA-R3-CV
Authoring Judge: Judge John W. McClarty
Trial Court Judge: Judge Carter Scott Moore

This post-divorce appeal involves the trial court’s denial of a petition for modification of the parenting plan. Having carefully reviewed the record before us, we hold that the evidence supports the parenting plan determination and other rulings made by the court.

Sevier County Court of Appeals 08/19/19
Carol Nolan v. Goodyear Tire and Rubber Co., ET AL.
W2018-01382-SC-R3-WC
Authoring Judge: Judge William B. Acree, Jr.
Trial Court Judge: Judge W. Michael Maloan

Carol Nolan (“Employee”) was employed by Goodyear Tire and Rubber Company (“Employer”). The trial court found that Employee was permanently and totally disabled following work-related injuries to her back and knees in April 2011. The trial court apportioned 85% liability of the award to Employer and 15% to the Tennessee Second Injury Fund. Employer has appealed the trial court’s finding that Employee is permanently and totally disabled and the apportionment of liability for permanent and total disability benefits. Employer’s appeal has been referred to this Special Workers’ Compensation Appeals Panel for a hearing and a report of findings of fact and conclusions of law pursuant to Tennessee Supreme Court Rule 51. After review, we conclude that the evidence does not preponderate against the trial court’s decision. Therefore, we affirm the trial court’s judgment.

Obion County Workers Compensation Panel 08/16/19
Natchez Trace Youth Acadamy Et Al v. Christopher Tidwell
M2018-01311-SC-R3-WC
Authoring Judge: Senior Judge Robert E. Lee Davies
Trial Court Judge: Judge Larry J. Wallace

Christopher Tidwell (“Employee”) suffered facial injuries during the course of his employment at Natchez Trace Youth Academy (“Employer”) while restraining a resident during an altercation. Employee filed this workers’ compensation claim alleging both physical and psychological injuries resulting from the incident. After a trial, the court concluded Employee did not make a meaningful return to work and awarded benefits for physical and psychological injuries, using a 4.85 multiplier. Employer has appealed, claiming the trial court erred in concluding Employee failed to make a meaningful return to work; in awarding additional temporary benefits; in determining Employee suffered a compensable psychological injury; and in awarding certain discretionary costs. The appeal has been referred to the Special Workers’ Compensation Appeals Panel for a hearing and a report of findings of fact and conclusions of law pursuant to Tennessee Supreme Court Rule 51. We affirm the trial court’s award of benefits beyond the statutory 1.5 cap, additional temporary benefits, and its finding of psychological injury. We reverse the award of certain discretionary costs.

Humphreys County Workers Compensation Panel 08/16/19
Eric Dubuclet v. Tennessee Department of Human Services
M2018-01309-COA-R3-CV
Authoring Judge: Judge Richard H. Dinkins
Trial Court Judge: Chancellor Ellen H. Lyle

The Tennessee Department of Human Services denied Supplemental Nutrition Assistance Program benefits to a two-person household based upon its determination that the household’s income exceeded the eligibility requirements.  After a final order was entered by the Department, the household petitioned the Chancery Court of Davidson County for review pursuant to Tennessee Code Annotated section 4-5-322.  The Chancellor affirmed the decision of the agency and dismissed the petition for judicial review; the household appeals the decision.  Upon our review, we affirm, finding that the Department’s decision was not in violation of constitutional or statutory provisions, arbitrary or capricious, in excess of statutory authority, made upon unlawful procedure, or unsupported by substantial and material evidence.

Davidson County Court of Appeals 08/16/19