Court Opinions

Format: 04/26/2018
Format: 04/26/2018
State of Tennessee v. Derek Cullen Lee
E2017-01198-CCA-R3-CD
Authoring Judge: Judge D. Kelly Thomas, Jr.
Trial Court Judge: Judge Steven W. Sword

The Defendant, Derek Cullen Lee, appeals from the Knox County Criminal Court’s denial of his request for judicial diversion. The Defendant contends (1) that the trial court “did not sufficiently weigh all the [required] factors . . . in deciding suitability for diversion”; and (2) that the trial court’s decision to deny his request for judicial diversion was based on the offense that he was convicted of rather than the applicable factors. Discerning no error, we affirm the judgment of the trial court.

Knox County Court of Criminal Appeals 03/27/18
In Re McKenzie Z.
M2017-00484-COA-R3-JV
Authoring Judge: Judge W. Neal McBrayer
Trial Court Judge: Judge Sheila Calloway

Unmarried father filed a petition to establish parentage and a residential parenting schedule. After father’s parentage was established, the juvenile court set a residential parenting schedule that awarded equal parenting time and ordered the child’s surname changed to a hyphenated version of both parents’ surnames. Mother appealed, arguing that the court erred in fashioning the parenting schedule and in ordering a change of the child’s surname. Upon review, we affirm the residential parenting schedule but vacate that portion of the order directing a change in the child’s surname.

Davidson County Court of Appeals 03/27/18
State of Tennessee v. Jeffrey A. Jones
M2017-00577-CCA-R3-CD
Authoring Judge: Judge Alan E. Glenn
Trial Court Judge: Judge Joseph A. Woodruff

The Defendant, Jeffery A. Jones, pled guilty in the Williamson County Circuit Court to DUI .08 % or greater, reserving as a certified question of law whether the results of his forced blood draw should have been suppressed because the affidavit in support of the search warrant contained reckless falsities and the form nature of the search warrant and affidavit prevented the magistrate from making an informed judgment as to probable cause. Following our review, we affirm the judgment of the trial court.

Williamson County Court of Criminal Appeals 03/27/18
Quanya Revell Prewitt v. State of Tennessee
M2017-01029-CCA-R3-PC
Authoring Judge: Judge Alan E. Glenn
Trial Court Judge: Judge Cheryl A. Blackburn

The Petitioner, Quanya Revell Prewitt, appeals the denial of her petition for postconviction relief from her conviction for possession of dihydrocodeinone in a school zone with intent to sell. She argues that she received ineffective assistance of counsel and that the State committed prosecutorial misconduct. After review, we affirm the denial of the petition.

Davidson County Court of Criminal Appeals 03/27/18
Sabrina Renae Witt v. Erica Christine Witt
E2017-00884-COA-R3-CV
Authoring Judge: Judge D. Michael Swiney, C.J.
Trial Court Judge: Judge Gregory S. McMillian

Individual members of the 109th Tennessee General Assembly and the 110th Tennessee General Assembly appeal the order of the Circuit Court for Knox County (“the Trial Court”) denying their motion to intervene in this suit involving the divorce of a same-sex couple and specifically involving the issue of whether the spouse who has no biological or other recognized legal relationship to the parties’ minor child may be considered a parent under Tenn. Code Ann. § 68-3-306 (2013). We find and hold that because all of the issues in the divorce now are final the case has been rendered moot as it has lost its justicability and no longer involves a present, ongoing controversy. We further find and hold that no exceptions to the mootness doctrine apply. As the case is moot, we dismiss this appeal.

Knox County Court of Appeals 03/27/18
Ronnie Henry v. State of Tennessee
M2017-01612-CCA-R3-HC
Authoring Judge: Judge Timothy L. Easter
Trial Court Judge: Judge Robert L. Jones

Over twelve years ago, Petitioner, Ronnie Henry, was convicted at a jury trial of several counts of robbery involving multiple victims in Shelby County. On direct appeal, this Court affirmed the convictions but remanded for resentencing. State v. Ronnie Henry, No. W2006-00344-CCA-R3-CD, 2008 WL 450459, at *1 (Tenn. Crim. App. Feb. 19, 2008), perm. app. denied (Tenn. Sept. 29, 2008). After resentencing, this Court affirmed Petitioner’s effective seventy-year sentence. State v. Ronnie Henry, No. W2009-00089- CCA-R3-CD, 2009 WL 3103823, at *1 (Tenn. Crim. App. Sept. 28, 2009), no perm. app. filed. Petitioner then unsuccessfully sought post-conviction relief. Ronnie Henry v. State, No. W2014-01786-CCA-R3-PC, 2016 WL 1402951, at *1 (Tenn. Crim. App. Apr. 7, 2016), perm. app. denied, (Tenn. Sept. 26, 2016). Now, Petitioner challenges the habeas corpus court’s summary dismissal of his petition for habeas corpus relief. For the following reasons, we affirm the judgment of the habeas corpus court.

Wayne County Court of Criminal Appeals 03/27/18
State of Tennessee v. Brandon Lacy Franklin
M2017-01081-CCA-R3-CD
Authoring Judge: Judge Timothy L. Easter
Trial Court Judge: Judge Mark J. Fishburn

Defendant, Brandon Lacy Franklin, appeals the trial court’s revocation of his community corrections sentence and imposition of an increased sentence of ten years’ incarceration. Upon our review of the record, we affirm the judgment of the trial court.

Davidson County Court of Criminal Appeals 03/27/18
State of Tennessee v. Calvin Lyndell Dibrell - concurring
E2016-02279-CCA-R3-CD
Authoring Judge: Judge Robert L. Holloway, Jr.
Trial Court Judge: Judge Steven W. Sword

ROBERT L. HOLLOWAY, JR., J., concurring. I agree with the majority that the defendant was searched without reasonable suspicion, that the evidence should have been suppressed by the trial court,1 and that the judgment of conviction must be vacated and the case dismissed.

Knox County Court of Criminal Appeals 03/26/18
State of Tennessee v. Calvin Lyndell Dibrell
E2016-02279-CCA-R3-CD
Authoring Judge: Judge James Curwood Witt, Jr.
Trial Court Judge: Judge Steven W. Sword

The defendant, Calvin Lyndell Dibrell, appeals his Knox County Criminal Court jury convictions of possession of a controlled substance with intent to sell or deliver within a prohibited zone, claiming that the trial court erred by denying his motion to suppress evidence obtained from the search of his vehicle and that the trial court improperly admitted evidence of the defendant’s prior convictions. Because the evidence obtained from the defendant’s vehicle was the result of an illegal search and seizure, the judgments of the trial court are vacated, and the case is dismissed.

Knox County Court of Criminal Appeals 03/26/18
State of Tennessee v. Christopher James Kirkland
E2017-01188-CCA-R3-CD
Authoring Judge: Judge James Curwood Witt, Jr.
Trial Court Judge: Judge David R. Duggan

The defendant, Christopher James Kirkland, appeals the revocation of the probationary sentence imposed for his Blount County Circuit Court conviction of the delivery of a controlled substance. Discerning no error, we affirm.

Blount County Court of Criminal Appeals 03/26/18
State of Tennessee v. Adam Davis
M2017-00293-CCA-R3-CD
Authoring Judge: Judge Camille R. McMullen
Trial Court Judge: Judge William R. Goodman, III

Following a bench trial, the Defendant-Appellant, Adam Davis, was convicted of two counts of aggravated sexual battery, a Class B felony. See T.C.A. § 39-13-504. The trial court sentenced him as a Range I, standard offender to a concurrent term of eight years’ imprisonment. The sole issue presented for our review is whether the evidence is sufficient to support his convictions. After a thorough review of the record and briefs, we affirm the judgments of the trial court.

Montgomery County Court of Criminal Appeals 03/26/18
Joseph Sweat v. City of McMinnville
M2017-01141-COA-R3-CV
Authoring Judge: Presiding Judge Frank G. Clement, Jr.
Trial Court Judge: Judge Larry B. Stanley, Jr.

The plaintiff, a former firefighter with the City of McMinnville Fire Department, brought this retaliatory discharge claim against his previous employer under the Tennessee Public Protection Act. The City filed a motion for summary judgment arguing that the plaintiff was unable to prove that the City’s proffered reason for the discharge was pretextual. Finding no genuine dispute, the trial court granted the motion and dismissed the complaint. We affirm.

Warren County Court of Appeals 03/23/18
Jacinto Machic v. Chrissy M. Machic
E2017-01477-COA-R3-CV
Authoring Judge: Judge Frank G. Clement, Jr.
Trial Court Judge: Judge Larry Michael Warner

This appeal arises from a final decree of divorce. Mother appeals, contending the trial court erred in designating Father as the Primary Residential Parent and awarding the majority of parenting time to Father; she also challenges the division of the martial property. Because the trial court made no findings of fact and the statement of the evidence is inadequate, we have determined that we cannot conduct an appropriate appellate review of the issues raised. Accordingly, the judgment of the trial court is vacated and this matter is remanded for the trial court to, inter alia, comply with the mandate in Tenn. R. Civ. P. 52.01, which states that “the [trial] court shall find the facts specially and shall state separately its conclusions of law and direct the entry of the appropriate judgment.”

Cumberland County Court of Appeals 03/23/18
State of Tennessee v. Thomas Louis Moore
E2017-01236-CCA-R3-CD
Authoring Judge: Judge D. Kelly Thomas, Jr.
Trial Court Judge: Judge Andrew M. Freiberg

The Defendant, Thomas Louis Moore, appeals as of right from the Bradley County Criminal Court’s revocation of his probation and order of incarceration for the remainder of his ten-year sentence. The Defendant contends that the trial court abused its discretion in ordering execution of his sentence. Following our review, we affirm the judgments of the trial court.

Bradley County Court of Criminal Appeals 03/23/18
Steven O. Hughes-Mabry v. Randy Lee, Warden and the State of Tennessee
E2017-01652-CCA-R3-ECN
Authoring Judge: Judge D. Kelly Thomas, Jr.
Trial Court Judge: Judge William K. Rogers

The Petitioner, appeals from the Sullivan County Criminal Court’s summary dismissal of his petition for a writ of error coram nobis. The Petitioner contends that the coram nobis court erred by summarily dismissing his petition as having been untimely filed and for failing to state a cognizable claim for relief. Following our review, we agree with the coram nobis court that the Petitioner is attempting to relitigate the denial of his pretrial suppression motion. Accordingly, we affirm the judgment of the coram nobis court.

Sullivan County Court of Criminal Appeals 03/23/18
Valentino L. Dyer v. State of Tennessee
E2017-00213-CCA-R3-PC
Authoring Judge: Judge D. Kelly Thomas, Jr.
Trial Court Judge: Judge J.Curtis Smith

The Petitioner, Valentino L. Dyer, appeals from the denial of his petition for postconviction relief, wherein he challenged his convictions for especially aggravated robbery and aggravated burglary. See Tenn. Code Ann. §§ 39-13-403, -14-403. In this appeal as of right, the Petitioner alleges that trial counsel was ineffective in the following ways: (1) by failing to object to the State’s deficient notice seeking enhanced punishment, thereby causing the Petitioner to be confused regarding the State’s plea offer and factoring into his decision to reject the fifteen-year offer; (2) by failing to negotiate a more favorable plea offer from the State due to his “improper understanding of the Petitioner’s criminal convictions”; (3) by failing to prepare the Petitioner to testify at trial; (4) by failing to visit the crime scene; (5) by failing to object to two photographs of the machete used during the break-in; (6) by failing to argue that the victim did not suffer serious bodily injury; (7) by failing to discuss with the Petitioner “any mitigating factors or the sentencing hearing” prior to the hearing itself; (8) by failing to subpoena or call witnesses on the Petitioner’s behalf at the sentencing hearing; and (9) “all other reasons set forth in the petition and amended petition for post-conviction relief.” Following a review of the record, all but one of the Petitioner’s issues are waived due to an inadequate brief, and the single issue properly presented for review lacks merit. Accordingly, we affirm the judgment of the post-conviction court.

Rhea County Court of Criminal Appeals 03/22/18
Timothy Evans v. State of Tennessee
E2017-00400-CCA-R3-PC
Authoring Judge: Judge D. Kelly Thomas, Jr.
Trial Court Judge: Judge Tom Greenholtz

The Petitioner, Timothy Evans, appeals from the Hamilton County Criminal Court’s denial of his petition for post-conviction relief. The Petitioner contends that trial counsel was ineffective (1) for failing to have the Petitioner “evaluated in order to present an insanity or diminished capacity defense”; (2) for failing to call “a psychological expert” to support the Petitioner’s duress defense; (3) for failing to “adequately prepare” the Petitioner to testify on cross-examination; and (4) for “depriving [the] Petitioner of a review of his duress [defense] by the appellate courts” by failing to include portions of the trial transcript in the appellate record. Discerning no error, we affirm the judgment of the post-conviction court.

Hamilton County Court of Criminal Appeals 03/22/18
State of Tennessee v. Kevin Allen Fleming
E2016-01746-CCA-R3-CD
Authoring Judge: Judge Robert W. Wedemeyer
Trial Court Judge: Judge E. Shayne Sexton

After a bifurcated trial, a jury convicted the Defendant, Kevin Allen Fleming, of one count of driving under the influence (“DUI”), fourth offense, and three counts of aggravated vehicular homicide. The trial court sentenced the Defendant to an effective sentence of forty-two years in confinement. At the motion for new trial hearing, the parties agreed that the Defendant’s DUI fourth offense conviction should have merged into his conviction for aggravated vehicular homicide conviction, reducing his sentence to an effective sentence of forty years. No amended judgment appears in the record. On appeal, the Defendant contends that: (1) the trial court erred when it denied his motion to suppress the blood draw evidence; (2) the trial court erred when it admitted the results from the blood draw because the evidence was not authenticated and the chain of custody was not established; (3) the trial court erred when it admitted autopsy photographs of the victims; (4) the State violated his Fifth Amendment right to remain silent; (5) the trial court erred when it found that Trooper James Fillers was an expert witness; (6) the trial court erred when it admitted the written report of expert Dr. Davis because the report contained hearsay; (7) the trial court erred when it sentenced him; (8) the evidence is insufficient to sustain his convictions; and (9) the cumulative errors by the trial court constitute reversible error. After review and for the reasons stated herein, we affirm the trial court’s judgments. We also remand the case for entry of an amended judgment reflecting that the Defendant’s DUI fourth offense conviction is merged with one of his aggravated vehicular homicide convictions.

Campbell County Court of Criminal Appeals 03/22/18
State of Tennessee v. Jenna Sims
E2017-00283-CCA-R3-CD
Authoring Judge: Judge D. Kelly Thomas, Jr.
Trial Court Judge: Judge James F. Goodwin, Jr.

The Defendant, Jenna Sims, pled guilty to multiple driving and drug offenses, for which she received an agreed-upon sentence of one-year, eleven months, and twenty-nine days. The Defendant was later placed on probation. During her probation, the Defendant left a residential treatment program and failed to return to jail, so a probation violation warrant was filed and she was charged with failure to appear. She pled guilty to the failure to appear charge and received an agreed-upon sentence of one year to be served consecutively to the remainder of her probationary sentence. At the subsequent sentencing hearing, the trial court revoked her probation and ordered her to serve her one year sentence for failure to appear in confinement. On appeal, she argues that the trial court abused its discretion by revoking her probation and by denying her alternative sentencing. We disagree. Accordingly, the judgments of the trial court are affirmed.

Sullivan County Court of Criminal Appeals 03/22/18
State of Tennessee v. Cory Lynn White
E2017-00885-CCA-R3-CD
Authoring Judge: Judge D. Kelly Thomas, Jr.
Trial Court Judge: Judge Donald R. Elledge

The Defendant, Cory Lynn White, was convicted by a jury of making a false report or statement, and he received a three-year spilt confinement sentence for this conviction. The Defendant appeals, arguing (1) that there was a fatal variance between the indictment and the proof offered at trial and (2) that the evidence was insufficient to support his conviction.1 Following our review of the record, we affirm the judgment of the trial court.

Anderson County Court of Criminal Appeals 03/22/18
In Re: Estate Of James Hood Nichols
E2017-00600-COA-R3-CV
Authoring Judge: Judge Charles D. Susano, Jr.
Trial Court Judge: Judge Dennis Roach, II

This case involves an order by the trial court directing the personal representative of the Estate of James Hood Nichols (the Estate) to sell a portion of the real property of the Estate. James Hood Nichols (the deceased) died testate. He bequeathed annuities to his daughters, Connie Jane Nichols Cinder and Nan Nichols Jones (the beneficiaries). In the will, the deceased gave a $75,000 annuity to Connie Jane Nichols Cinder and a $50,000 annuity to Nan Nichols Jones. According to the final settlement filed by Richard N. Swanson and Earl Wayne Campbell (the co-executors), the net distributable probate estate is $8,712.01. The co-executors proposed to distribute that amount to the beneficiaries in proportion to the amount left to each beneficiary. The beneficiaries filed an objection to the proposed final settlement, asking the court to order the sale of a portion of the deceased’s real property in order to fund the annuities. Finding that the bequests to the beneficiaries are higher priority than other bequests and devises in the will, the trial court ordered the personal representative to sell a portion of the deceased’s real property sufficient to fund the annuities. The trial court also awarded the beneficiaries their attorney’s fees. The co-executors appeal. We affirm.

Jefferson County Court of Appeals 03/22/18
Theresa Aileen Blount v. Howard Paul Blount, III
E2017-00243-COA-R3-CV
Authoring Judge: Judge Charles D. Susano, Jr.
Trial Court Judge: Judge Dennis W. Humphrey

This case involves a post-divorce petition seeking military retirement benefits not allocated at the time of the divorce. The trial court awarded Theresa Aileen Blount (Wife) the requested benefits over the objection of her former spouse, Howard Paul Blount, III (Husband). The trial court also awarded Wife attorney’s fees in the amount of $6,000. Husband appeals. Wife raises her own issues. She seeks additional attorney’s fees; an award of travel expenses; and a remand to the trial court for the purpose of calculating Wife’s entitlement in accordance with the “retained jurisdiction method.” We affirm the trial court’s order granting benefits. We remand the case to the trial court for the purpose of (1) determining the appropriate valuation method for calculating Wife’s benefits and (2) thereafter describing each party’s respective legal interest in Husband’s military pension.

Roane County Court of Appeals 03/22/18
In Re Taj' M.
W2017-01142-COA-R3-JV
Authoring Judge: Presiding Judge Frank G. Clement, Jr., P.J., M.S.
Trial Court Judge: Special Judge Davis S. Walker

This is one of several separate appeals filed with this court that arise directly or indirectly out of a dependent and neglect petition, a custody and child support proceeding, and an administrative order by the juvenile court. The administrative order required escort of the appellant by a deputy sheriff any time the appellant was in the building housing the Juvenile Court of Memphis and Shelby County “to enforce order in the court’s immediate presence and as near thereto as is necessary to prevent interruption, disturbance, or hindrance to its proceedings.” The juvenile court case from which this appeal arises, case number BB5203, was a dependent and neglect petition the appellant voluntarily dismissed by court order entered on September 24, 2015. Although the appellant remained a party to one or more separate juvenile court cases involving custody and child support of the same minor child, the order dismissing this case was a final judgment from which an appeal could be taken in 2015. Tenn. R. App. P. 4(a) requires that a notice of appeal be filed with and received by the clerk within thirty days after entry of the judgment appealed. The notice of appeal challenging the judgment entered in this case was not filed until December 17, 2016, more than one year after the 2015 final judgment was entered. Therefore, it is untimely. Because the failure to file a timely notice of appeal deprives this court of jurisdiction to hear the matter, this appeal is dismissed.

Shelby County Court of Appeals 03/21/18
In Re: Veronica T., Et Al.
M2017-00726-COA-R3-PT
Authoring Judge: Judge Brandon O. Gibson
Trial Court Judge: Judge Donna Scott Davenport

This appeal involves the termination of a mother’s parental rights to her four minor children. The trial court found by clear and convincing evidence that four statutory grounds for termination had been proven and that termination is in the best interest of the children. We reverse with respect to two of the grounds for termination but otherwise affirm the trial court’s order terminating the mother’s parental rights.     

Rutherford County Court of Appeals 03/21/18
Tennessee Farmers Mutual Insurance Company v. Southern Damage Appraisals, Inc
M2017-00164-COA-R3-CV
Authoring Judge: Chief Judge D. Michael Swiney
Trial Court Judge: Judge Ross H. Hicks

Tennessee Farmers Mutual Insurance Company (“TN Farmers”), a/s/o Jared Smalley and Cara Gurszecki (“the Homeowners”) sued Southern Damage Appraisals, LLC a/k/a Willow Works (“SDA”) in connection with a construction project that SDA performed on the Homeowners’ house located in Robertson County, Tennessee. SDA filed a motion for summary judgment alleging that the suit was barred by the statute of repose contained in Tenn. Code Ann. § 28-3-202. After a hearing on the motion for summary judgment, the Circuit Court for Robertson County (“the Trial Court”) entered its order granting summary judgment to SDA after finding and holding, inter alia, that TN Farmers’ claim was for subrogation, the claim was subject to the four year statute of repose contained in Tenn. Code Ann. § 28-3-202, and as the claim had been filed more than four years after substantial completion of the work TN Farmers’ claim was barrred. We find and hold that the claim was one for subrogation asserting a right pursuant to an alleged contract between the Homeowners and SDA, that TN Farmers failed to show the existence of any contract between the Homeowners and SDA, and that even if a contract between the Homeowners and SDA did exist coverage for such a contract would be excluded under the insurance policy between TN Farmers and the Homeowners. We, therefore, find and hold that the Trial Court did not err in granting summary judgment to SDA.

Robertson County Court of Appeals 03/21/18