Court Opinions

Format: 05/22/2020
Format: 05/22/2020
Abraham A. Augustin v. State of Tennessee
E2019-01739-CCA-R3-PC
Authoring Judge: Judge John Everett Williams
Trial Court Judge: Judge Andrew M. Freiberg

The Petitioner, Abraham A. Augustin appeals the post-conviction court’s summary dismissal of his pro se petition for post-conviction relief. The Petitioner maintains that the statute of limitations should be tolled based on newly discovered evidence. After a review of the record and applicable law, we affirm the post-conviction court’s summary dismissal of the petition.

McMinn County Court of Criminal Appeals 04/28/20
State of Tennessee v. Dennis Freeny
E2019-00207-CCA-R3-CD
Authoring Judge: Judge Thomas T. Woodall
Trial Court Judge: Judge Steven Wayne Sword

Dennis Freeny, Defendant, claims that the trial court abused its discretion in revoking his probation and ordering him to serve the balance of his sentences in the Tennessee Department of Correction (TDOC). Discerning no error, we affirm the trial court.

Knox County Court of Criminal Appeals 04/28/20
Diane Greer v. James Greer
M2020-00434-COA-R3-CV
Authoring Judge: Per Curiam
Trial Court Judge: Judge Jonathan L. Young

This is an appeal from a final decree of divorce entered on November 4, 2019, and an order denying a motion for a new trial entered on January 17, 2020. Because the husband did not file his notice of appeal within thirty days after entry of the order denying the motion for a new trial, we dismiss the appeal.

Putnam County Court of Appeals 04/28/20
In Re Dustin M.
M2019-01661-COA-R3-PT
Authoring Judge: Judge Kenny Armstrong
Trial Court Judge: Judge Tim Barnes

This is a termination of parental rights case. Appellants, mother and father, appeal the trial court’s termination of their parental rights on the grounds of: (1) abandonment; (2) failure to substantially comply with the requirements of the parenting plans; (3) persistence of the conditions that led to the child’s removal from their custody; and (4) failure to manifest an ability and willingness to assume custody. Discerning no error, we affirm.

Montgomery County Court of Appeals 04/28/20
Charlie Clark v. State of Tennessee
M2019-01212-CCA-R3-HC
Authoring Judge: Judge Robert W. Wedemeyer
Trial Court Judge: Judge John D. Wootten, Jr.

In 2013, a Henderson County jury convicted the Petitioner, Charlie Clark, of rape. The Petitioner was sentenced to serve twenty-five years as a Range III, persistent offender in the Tennessee Department of Correction. See State v. Charles Anderson Clark, Jr., No. 2014-00445-CCA-R3-CD, 2014 WL 7204525, at *1 (Tenn. Crim. App., at Jackson, Dec. 17, 2014) no perm. app. filed. In November 2018, the Petitioner filed, pro se, a petition for a writ of habeas corpus, alleging that he was improperly sentenced as a Range III offender without proper notice in contravention of Tennessee Code Annotated section 40-35-202(a). The habeas corpus court denied the petition because the Petitioner’s claim, even if true, would make the judgment voidable and not void. On appeal, the Petitioner maintains that he was not provided with proper notice of the State’s intent to seek enhanced punishment before sentencing. After review, we affirm the habeas corpus court’s judgment.

Trousdale County Court of Criminal Appeals 04/28/20
State of Tennessee v. David Eric Lambert
E2018-02296-CCA-R3-CD
Authoring Judge: Judge Thomas T. Woodall
Trial Court Judge: Judge James F. Goodwin, Jr.

Defendant, David Eric Lambert, appeals his conviction for attempted unlawful photography in violation of Tennessee Code Annotated section 39-13-605. Following his conviction, the trial court sentenced Defendant to serve six months in confinement. In this appeal as of right, Defendant asserts that: 1) the trial court erred by denying his motion to dismiss because the unlawful photography statute is unconstitutionally vague and his conduct did not constitute a crime; 2) the admission of his statement violated Rule 404(b) of the Tennessee Rules of Evidence; 3) the trial court erred by denying Defendant’s requests for special jury instructions; 4) the trial court erred by instructing the jury on attempt as a lesser-included offense; and 5) the evidence was insufficient to support Defendant’s conviction. We conclude that the trial court erred by admitting Defendant’s statement to police, and the erroneous admission of the statement would entitle Defendant to a new trial. Because, however, the evidence adduced at trial was insufficient to support Defendant’s conviction, the conviction is reversed and the case is dismissed with prejudice.

Sullivan County Court of Criminal Appeals 04/28/20
State of Tennessee v. David Eric Lambert
E2018-02282-CCA-R3-CD
Authoring Judge: Judge James Curwood Witt, Jr.
Trial Court Judge: Judge James F. Goodwin, Jr.

The defendant, David Eric Lambert, appeals his Sullivan County Criminal Court jury conviction of unlawful photography, see T.C.A. § 39-13-605, arguing that (1) Code section 39-13-605 is unconstitutionally vague, (2) the trial court erred by denying his motion to dismiss on grounds that his conduct did not constitute a crime, (3) the admission of his statement at trial violated evidence rule 404(b), (4) the evidence was insufficient to support his conviction, and (5) the trial court erred by ordering that the defendant serve the
11-month and 29-day sentence imposed in this case consecutively to the defendant’s sentence in another case. We conclude that the trial court erred by admitting the defendant’s statement to the police, and the erroneous admission of the statement would entitle the defendant to a new trial. Because, however, the evidence adduced at trial was insufficient to support the defendant’s conviction, the conviction is reversed, and the case is dismissed.

Sullivan County Court of Criminal Appeals 04/28/20
State of Tennessee v. David Eric Lambert
E2018-02298-CCA-R3-CD
Authoring Judge: Judge D. Kelly Thomas, Jr.
Trial Court Judge: Judge James F. Goodwin, Jr.

The Defendant, David Eric Lambert, appeals his Sullivan County Criminal Court jury convictions for unlawful photography and attempted sexual battery. See Tenn. Code Ann. §§ 39-12-101, -13-505, -13-605. On appeal, the Defendant argues that (1) the trial court erred by denying his motion to dismiss because then Code section 39-13-605 governing unlawful photography was unconstitutionally vague and because his conduct did not constitute a crime; (2) the admission of his statement at trial violated Rule 404(b) of the Tennessee Rules of Evidence; (3) the evidence was insufficient to support his convictions; and (4) the trial court erred by ordering that he serve the eleven-month-andtwenty- nine-day sentences imposed in this case consecutively to each other and to the Defendant’s sentence in another case. Because the evidence adduced at trial was insufficient to support the Defendant’s conviction for unlawful photography, that conviction is reversed and the charge is dismissed. However, the Defendant’s conviction for attempted sexual battery is affirmed, the evidence being sufficient to support that conviction.

Sullivan County Court of Criminal Appeals 04/28/20
Alfred Whitehead v. State of Tennessee
M2019-00790-CCA-R3-PC
Authoring Judge: Judge Thomas T. Woodall
Trial Court Judge: Judge Monte Watkins

Alfred Whitehead, Petitioner, appeals from the post-conviction court’s order denying relief. On appeal, Petitioner claims that he received ineffective assistance of counsel as a result of trial counsel’s failure to object to “inflammatory and prejudicial statements” made by the State during opening statement and closing argument. We agree that the statements were improper and that trial counsel rendered deficient performance by failing to object, but we hold that Petitioner failed to “show that there [wa]s a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.” Strickland v. Washington, 466 U.S. 668, 694 (1984). We, therefore, affirm the judgment of the post-conviction court.

Davidson County Court of Criminal Appeals 04/27/20
Lascassas Land Company v. Jimmy E. Allen, ET Al.
M2019-00870-COA-R3-CV
Authoring Judge: Judge Kenny Armstrong
Trial Court Judge: Judge Hamilton V. Gayden, Jr.

This is the second appeal of this case involving a dispute between two limited liability companies (and an individual with interest in both companies). In the first appeal, this Court remanded the case for the trial court to consider and make appropriate findings concerning the applicability of the doctrines of unjust enrichment and unclean hands. On remand, the trial court held that Appellee had met its burden to show that Appellant would be unjustly enriched if it were allowed to retain Appellee’s construction costs in addition to the stipulated value of the lots, and the profits from the sales of the homes constructed on those lots. The trial court further held that Appellee was not barred from recovery under the doctrine of unclean hands. The trial court also awarded Appellant a portion of its claimed attorney’s fees and costs. Discerning no error, we affirm.

Rutherford County Court of Appeals 04/27/20
Eric Magness v. Edith G. Couser
M2019-01138-COA-R3-CV
Authoring Judge: Judge Kenny Armstrong
Trial Court Judge: Judge James G. Martin, III

This is a nuisance case. Appellant alleges that Appellee created a nuisance when he caused: (1) debris and gravel to drain onto her land; and (2) a foul sewage odor to permeate her land. The trial court dismissed her claim. Finding no error, we affirm.

Williamson County Circuit, Criminal & Chancery Courts 04/27/20
ANDREW HIRT, ET AL. v. METROPOLITAN BOARD OF ZONING APPEALS OF THE METROPOLITAN GOVERNMENT OF NASHVILLE AND DAVIDSON COUNTY
M2019-00775-COA-R3-CV
Authoring Judge: Judge Kenny Armstrong
Trial Court Judge: Chancellor Ellen H. Lyle

This is the second appeal of this case involving a local zoning board’s denial of Appellants’ permit to replace a static billboard with an LED digital billboard. The zoning board denied Appellants’ initial application for a permit, and the chancery court affirmed. In the first appeal, this Court vacated the chancery court’s order on its holding that the chancery court lacked subject-matter jurisdiction. Our holding rendered the board’s decision a final judgment. The instant appeal arises from Appellants’ second application for an LED digital billboard on its property. The board again denied the application, and Appellants appealed to the chancery court. The chancery court held, inter alia, that Appellants’ second application was barred as res judicata. Discerning no error, we affirm.

Davidson County Court of Appeals 04/27/20
State of Tennessee v. Nemon Omar Winton
M2018-01447-CCA-R3-CD
Authoring Judge: Judge Thomas T. Woodall
Trial Court Judge: Judge L. Craig Johnson

Defendant, Nemon Omar Winton, was convicted of two counts of especially aggravated kidnapping, one count of aggravated kidnapping, and one count of aggravated robbery. The trial court imposed a sentence of thirty years for each count of especially aggravated kidnapping, fifteen years for aggravated kidnapping, and fifteen years for aggravated robbery. The trial court ordered the sentences for especially aggravated kidnapping and aggravated kidnapping to be served concurrently with each other and consecutively to the sentence for aggravated robbery for an effective forty-five-year sentence to be served in confinement. On appeal, Defendant argues: (1) that the evidence was insufficient to support his convictions for especially aggravated kidnapping, aggravated robbery, and aggravated kidnapping; (2) that the trial court erred in denying his request for a special jury instruction; and (3) that his sentence was excessive. Upon reviewing the record and the applicable law, we affirm the judgments of conviction for especially aggravated kidnapping and aggravated robbery. We conclude the evidence is legally insufficient to support the conviction of aggravated kidnapping, reverse that conviction and dismiss with prejudice the charge of aggravated kidnapping contained in Count Nine of the indictment. That count is remanded for consideration of appropriate lesser-included offenses, if any, of aggravated kidnapping.

Coffee County Court of Criminal Appeals 04/27/20
State of Tennessee v. Rodney Darnell Robinson
M2019-00303-CCA-R3-CD
Authoring Judge: Judge Robert L. Holloway, Jr.
Trial Court Judge: Judge Cheryl A. Blackburn

Rodney Darnell Robinson ("Defendant") was convicted in Davidson County Criminal Court of two counts of child abuse, five counts of aggravated sexual battery, four counts of rape of a child, two counts of sexual battery by an authority figure, two counts of rape, and one count of attempted rape of a child, for which he received an effective sentence of sixty years' incarceration. On appeal, Defendant contends that: (1) the evidence was insufficient to support his convictions; (2) he was denied the effective assistance of counsel; (3) the trial court erred by allowing trial counsel to proceed while "clearly ill"; (4) the trial court failed to remedy statements made during voir dire by a potential juror, thereby depriving Defendant of a fair trial; (5) the trial court erred in allowing cumulative testimony in the cross-examination of Defendant; (6) the trial court erred in allowing improper leading questions to a witness; (7) the trial court erred in the admission of certain evidence; (8) the trial court erred in the exclusion of certain evidence; (9) there was an appearance of bias from the trial judge that violated Defendant's due process rights; and (10) cumulative error requires a new trial. Following a thorough review, we affirm the judgments of the trial court.

Davidson County Court of Criminal Appeals 04/27/20
State of Tennessee v. Joseph E. Graham
M2019-00388-CCA-R3-CD
Authoring Judge: Judge Alan E. Glenn
Trial Court Judge: Judge William R. Goodman, III

The Defendant, Joseph E. Graham, was convicted by a Montgomery County Circuit Court jury of two alternate theory counts of felony murder; one count of especially aggravated burglary, a Class B felony; seven counts of especially aggravated kidnapping, Class A felonies; and five counts of attempted aggravated robbery, Class C felonies. The trial court merged the felony murder convictions and sentenced the Defendant to an effective term of life plus twenty years. On appeal, the Defendant argues that: (1) the evidence is insufficient to sustain his convictions, and there was insufficient evidence corroborating co-defendant Cheeks' accomplice testimony; (2) the trial court erred in limiting his cross-examination of co-defendant Cheeks and excluding relevant evidence; and (3) he is entitled to a new trial based on the newly discovered evidence of co-defendant Cheeks' testimony at codefendant Shelton's trial. After review, we affirm the judgments of the trial court.

Montgomery County Court of Criminal Appeals 04/27/20
State of Tennessee v. Keith Harris Pearson
M2019-00780-CCA-R3-CD
Authoring Judge: Judge Thomas T. Woodall
Trial Court Judge: Judge Forest A. Durard, Jr.

Keith Harris Pearson, Defendant, admitted to violating the terms of his probation, and the trial court revoked his probation and ordered him to serve the balance of his sentence in the Tennessee Department of Correction (“TDOC”). On appeal, Defendant claims that the trial court erred in revoking his probation. Discerning no error, we affirm the trial court.

Marshall County Court of Criminal Appeals 04/27/20
State of Tennessee v. Gordon Lynn Dunkin
W2019-01684-CCA-R3-CD
Authoring Judge: Judge Robert L. Holloway, Jr.
Trial Court Judge: Judge Donald H. Allen

Gordon Lynn Dunkin, Defendant, was indicted for theft of property “equal to or over” the value of $2,500.00, a Class D felony, and a jury convicted him of the lesser offense of theft of property in the value of more than $1,000.00, but less than $2,500.00, a Class E felony. Following a sentencing hearing, the trial court determined Defendant to be a Range I standard offender and sentenced him to two years’ incarceration. On appeal, Defendant claims that there was insufficient evidence to sustain the conviction and that the trial court erred in not sentencing him to an alternative sentence. Discerning no error, we affirm the judgment of the trial court.

Henderson County Court of Criminal Appeals 04/24/20
State of Tennessee v. Jason Collins
W2019-01415-CCA-R3-CD
Authoring Judge: Judge James Curwood Witt, Jr.
Trial Court Judge: Judge Donald Allen

The defendant, Jason Collins, appeals his Henderson County Circuit Court jury convictions of possession with intent to sell .5 grams or more of methamphetamine and possession of drug paraphernalia, arguing that the trial court erred by permitting the State to present a rebuttal witness, that the evidence was insufficient to support his convictions, and that the trial court erred by aligning the sentence imposed in this case consecutively to the sentence imposed in an unrelated case. Discerning no error, we affirm.

Henderson County Court of Criminal Appeals 04/24/20
State of Tennessee v. Vintario Tate
W2019-01072-CCA-R3-CD
Authoring Judge: Judge James Curwood Witt, Jr.
Trial Court Judge: Judge James M. Lammey, Jr.

The defendant, Vintario Tate, appeals his Shelby County Criminal Court jury convictions of attempted second degree murder, aggravated assault, and employing a firearm during the commission of a dangerous felony, arguing that the evidence was insufficient to support his convictions and that his convictions violate principles of double jeopardy. Discerning no error, we affirm the judgments of the trial court and remand for entry of a corrected judgment in count 3.

Shelby County Court of Criminal Appeals 04/24/20
State of Tennessee v. Danny Ray Lacy
W2019-00748-CCA-R3-CD
Authoring Judge: Presiding Judge John Everett Williams
Trial Court Judge: Judge Donald H. Allen

The Defendant, Danny Ray Lacy, filed a motion under Tennessee Rule of Criminal Procedure 36 to correct a clerical error in the judgment convicting him of first degree felony murder and sentencing him to serve life in prison without the possibility of parole rather than the number of years that he was to be incarcerated. The trial court dismissed the motion, concluding that there was no clerical error in the omission of a sentence in terms of years in the judgment. On appeal, we affirm the trial court’s judgment.

Madison County Court of Criminal Appeals 04/24/20
State of Tennessee v. Darius Markee Alston aka "Jack"
W2018-00550-CCA-R3-CD
Authoring Judge: Judge J. Ross Dyer
Trial Court Judge: Judge Joe H. Walker, III

A Lauderdale County jury convicted the defendant, Darius Markee Alston, of two counts of first degree premeditated murder, two counts of felony murder, two counts of especially aggravated robbery, and unlawful possession of a firearm by a convicted felon. The trial court imposed an effective sentence of life in confinement. On appeal, the defendant challenges the sufficiency of the evidence supporting his convictions, and asserts the trial court erred by: allowing testimony of his co-defendant’s nickname, allowing improper opinion testimony, denying his motion for a mistrial, and not severing his trial from his co-defendant’s trial. Upon our review of the record, we affirm the judgments of the trial court.

Lauderdale County Court of Criminal Appeals 04/24/20
Angela Smith v. State of Tennessee
W2019-00994-CCA-R3-PC
Authoring Judge: Judge J. Ross Dyer
Trial Court Judge: Judge Clayburn Peeples

The petitioner, Angela Smith, appeals the denial of her post-conviction petition, arguing the post-conviction court erred in finding she received the effective assistance of counsel at trial. Following our review, we affirm the denial of the petition.

Gibson County Court of Criminal Appeals 04/24/20
State of Tennessee v. Darrell Roby
W2019-00438-CCA-R3-CD
Authoring Judge: Judge Timothy L. Easter
Trial Court Judge: Judge Jennifer Johnson Mitchell

Darrell Roby, Defendant, was convicted by a jury of one count of rape of a child and one count of aggravated sexual battery. As a result of the convictions, Defendant was sentenced to an effective sentence of fifty-two years. After the denial of a motion for new trial, Defendant appeals his convictions. On appeal, he argues that the evidence was insufficient to support his convictions. After a thorough review, we determine that the evidence is sufficient to support the convictions. Consequently, the judgments of the trial court are affirmed.

Shelby County Court of Criminal Appeals 04/24/20
Rodriquez McNary v. State of Tennessee
W2019-00048-CCA-R3-PC
Authoring Judge: Judge Thomas T. Woodall
Trial Court Judge: Judge J. Robert Carter, Jr.

Petitioner, Rodriquez McNary, appeals the denial of his petition for post-conviction relief. Following a jury trial, Petitioner and his two
co-defendants were convicted of two counts of attempted first-degree murder, one count of aggravated assault, and one count of reckless endangerment. Defendant and one of his co-defendants were also convicted of one count of employing a firearm during the commission of a dangerous felony. The third co-defendant was convicted of employing a firearm during the commission of a dangerous felony after having been previously convicted of a felony and of possessing a firearm after having been convicted of a felony involving the use or attempted use of violence. Petitioner was sentenced to an effective forty-one-year sentence. On appeal, this court held that the evidence was insufficient to support Petitioner’s conviction for employing a firearm during a dangerous felony and reversed and remanded the case for a new trial on the lesser-included offense of possession of a firearm during the commission of a dangerous felony. Petitioner’s remaining convictions were affirmed. State v. Dantario Burgess, et al., No. W2015-00588-CCA-R3-CD, 2017 WL 417231, at *1-10 (Tenn. Crim. App. Jan. 31, 2017). Petitioner contends on appeal that the post-conviction court erred in denying the petition for post-conviction relief because the post-conviction court erred in failing to find prosecutorial vindictiveness, and he was denied effective assistance of counsel. Following a review of the briefs and the record, we affirm the judgment of the post-conviction court.

Shelby County Court of Criminal Appeals 04/24/20
State of Tennessee v. Treveno Campbell
W2017-01101-CCA-R3-CD
Authoring Judge: Judge J. Ross Dyer
Trial Court Judge: Judge James C. Beasley, Jr.

As a result of firing upon several law enforcement officers and actually killing one officer, the defendant, Treveno Campbell, was indicted for one count of first-degree murder (Count 1), five counts of attempted first-degree murder (Counts 2, 4, 6, 8, 10), six counts of employing a firearm during the commission of a dangerous felony (Counts 3, 5, 7, 9, 11, 12), possession of marijuana with intent to sell (Count 13), and possession of marijuana with intent to deliver (Count 14). After a trial, a jury convicted the defendant of second degree murder (Count 1), two counts of attempted second degree murder (Counts 2 and 10), two counts of employing a firearm during the commission of a dangerous felony (Counts 3 and 11), one count of possession of a firearm with intent to go armed (Count 12), possession of marijuana with intent to sell (Count 13), and possession of marijuana with intent to deliver (Count 14). Counts 5, 7, and 9 were dismissed. As a result of his convictions, the defendant received an effective sentence of forty years in confinement. On appeal, the defendant raises numerous issues, including the trial court erred in denying his motion in limine; the trial court erred in allowing Officer Goodwin to invoke his Fifth Amendment rights; the trial court erred in denying his motion for a mistrial based on the State and a two witnesses referencing gang activity; the trial court erred in instructing the jury on the defense of self-defense; the trial court erred in denying his request for an instruction on mistake of fact; the evidence was insufficient to support the jury’s verdict; the trial court erred in sentencing him; and cumulative error. After a review of the record and the briefs, we find no reversible error and affirm the defendant’s convictions and sentences.

Shelby County Court of Criminal Appeals 04/24/20