Court Opinions

Format: 06/24/2017
Format: 06/24/2017
State of Tennessee v. Jonathan Gutierrez
M2015-01235-CCA-R3-CD
Authoring Judge: Judge Norma McGee Ogle
Trial Court Judge: Judge Cheryl A. Blackburn

The Appellant, Jonathan Gutierrez, was convicted in the Davidson County Criminal Court of one count of first degree premeditated murder and four counts of aggravated assault and received an effective sentence of life plus sixteen years in confinement. On appeal, he contends that the evidence is insufficient to support his murder conviction and two of his aggravated assault convictions, that the trial court committed plain error by failing to declare a mistrial when the State did not produce a codefendant’s statement before trial, that the State committed plain error by giving improper closing argument, that the trial court erred by ordering consecutive sentencing, and that his life sentence is unconstitutional. Based upon the oral arguments, the record, and the parties’ briefs, we affirm the judgments of the trial court.

Davidson County Court of Criminal Appeals 05/24/17
William Dale Alsup v. David C. Alsup
W2016-00925-COA-R3-CV
Authoring Judge: Judge Kenny Armstrong
Trial Court Judge: Chancellor Carma Dennis McGee

This is a declaratory judgment case. Decedent, mother to the parties, died testate, leaving a holographic will that divided her real property between her two sons, David Alsup/Appellant and William Alsup/Appellee. The probate court admitted the will to probate. Following completion of the probate proceeding, William obtained a survey dividing the property as provided for in Decedent’s will. David refused to accept the survey procured by William, and William then filed this action to quiet title and for ejectment. David filed an answer but did not file a counterclaim or a countervailing survey. William moved for summary judgment, which the trial court granted. Discerning no error, we affirm.

Henry County Court of Appeals 05/23/17
Elizabeth Eberbach v. Christopher Eberbach
M2014-01811-SC-R11
Authoring Judge: Chief Justice Jeffrey S. Bivins
Trial Court Judge: Judge James G. Martin, III

We granted this appeal to determine whether the Court of Appeals may exercise discretion and decline to award appellate attorney’s fees when the marital dissolution agreement at issue contains a provision entitling the prevailing party to an award of such fees. In this case, Husband and Wife were parties to a marital dissolution agreement that was incorporated into their final divorce decree (“the Parties’ MDA”). The Parties’ MDA contained a provision for the award of attorney’s fees to the prevailing party in any subsequent legal proceedings. Following a post-divorce proceeding that resulted in the trial court granting relief and awarding attorney’s fees to Wife, Husband appealed. Wife also prevailed on appeal and sought an award of appellate attorney’s fees from the Court of Appeals under a statutory provision and under the Parties’ MDA. Exercising its discretion, the Court of Appeals declined to award the requested fees under the statute. The Court of Appeals erroneously failed to separately consider an award of the requested fees under the Parties’ MDA. Accordingly, we reverse the Court of Appeals’ judgment and remand this matter for further proceedings consistent with this Opinion.

Williamson County Supreme Court 05/23/17
State of Tennessee v. Michael C. Bolden
E2016-01266-CCA-R3-CD
Authoring Judge: Judge James Curwood Witt, Jr.
Trial Court Judge: Judge E. Eugene Eblen

The defendant, Michael C. Bolden, appeals his Morgan County Criminal Court jury conviction of aggravated rape of a child, claiming that the evidence was insufficient to support his conviction and that the trial court erred by failing to instruct the jury on rape of a child as a lesser included offense. We affirm the conviction and sentence but remand for correction of a clerical error in the judgment.

Morgan County Court of Criminal Appeals 05/23/17
State of Tennessee v. Joshua D. Ketchum
M2016-00685-CCA-R3-CD
Authoring Judge: Judge Robert L. Holloway, Jr.
Trial Court Judge: Judge Robert L. Jones

In February 2015, a Maury County jury convicted Joshua D. Ketchum (“the Defendant”) of attempted robbery, for which he received a sentence of seven years’ incarceration. On appeal, the Defendant asserts that: (1) the evidence presented at trial was insufficient to support his conviction; (2) his sentence is excessive; and (3) the trial court committed plain error by questioning the Defendant during his allocution. Following a thorough review, we affirm the judgment of the trial court.

Maury County Court of Criminal Appeals 05/23/17
State of Tennessee v. Dewayne D. Fleming
M2015-01774-CCA-R3-CD
Authoring Judge: Presiding Judge Thomas T. Woodall
Trial Court Judge: Judge Dee David Gay

Defendant, Dewayne D. Fleming, was indicted for one count of aggravated burglary, two counts of especially aggravated kidnapping, one count of aggravated rape, and two counts of aggravated robbery. Defendant was convicted by a jury as charged. The trial court sentenced Defendant to six years for the aggravated burglary conviction; 12 years for each aggravated robbery conviction; 25 years for the aggravated rape conviction; and 25 years for each of the two especially aggravated kidnapping convictions. The trial court found Defendant to be a dangerous offender and imposed partial consecutive sentencing. The court ordered Defendant’s aggravated robbery sentences to run concurrently with each other and his especially aggravated kidnapping sentences to run concurrently with each other. However, the court ordered that Defendant’s sentences for aggravated robbery, especially aggravated kidnapping, and aggravated rape run consecutively, for an effective sentence of 62 years. In this appeal as of right, Defendant asserts that: 1) the evidence was insufficient to support his convictions because the accomplice testimony was uncorroborated; 2) the trial court erred by instructing the jury on theories of criminal liability that were not included in the indictment; 3) Defendant’s convictions for especially aggravated kidnapping violate due process because the State failed to establish that the confinement was greater than necessary to commit the other felonies; and 4) the trial court erred in imposing consecutive sentencing. Having reviewed the entire record and the briefs of the parties, we affirm the judgments of the trial court.

Sumner County Court of Criminal Appeals 05/23/17
Charles Brenden Davis v. State of Tennessee
M2016-02512-CCA-R3-PC
Authoring Judge: Judge Robert L. Holloway, Jr.
Trial Court Judge: Judge Cheryl A. Blackburn

The Petitioner’s convictions were affirmed by this court on direct appeal and no Tennessee Rule of Appellate Procedure 11 application for permission to appeal was filed. The Petitioner filed an untimely petition for post-conviction relief, alleging that he received the ineffective assistance of counsel and requesting that he be allowed to file a delayed Rule 11application. The post-conviction court summarily dismissed the petition. On appeal, the Petitioner argues that the post-conviction court erred in summarily dismissing his petition because the statute of limitations should be tolled under due process. After a thorough review of the record and applicable case law, we affirm.

Davidson County Court of Criminal Appeals 05/23/17
Emmett Lamon Roseman v. State of Tennessee
M2016-01051-CCA-R3-PC
Authoring Judge: Judge Robert L. Holloway, Jr.
Trial Court Judge: Judge Franklin L. Russell

The Petitioner, Emmett Lamon Roseman, appeals the denial of post-conviction relief from his 2013 Marshall County Circuit Court convictions of possession of marijuana with intent to sell, sale of 0.5 grams or more of crack cocaine, delivery of 0.5 grams or more of crack cocaine, and three counts of failure to appear, for which he received an effective sentence of twenty years. In this appeal, the Petitioner contends that he was denied the effective assistance of counsel and that his guilty pleas were not knowingly and voluntarily entered. Discerning no error, we affirm the denial of post-conviction relief.

Marshall County Court of Criminal Appeals 05/23/17
Lynn E. Harrison v. Edwin B. Harrison, Jr.
E2016-00672-COA-R3-CV
Authoring Judge: Judge Thomas R. Frierson, II
Trial Court Judge: Judge Rex A. Dale

This divorce case involves a marriage of eight years’ duration. Because the parties had reached an agreement with regard to the division of certain marital assets, the trial court was requested during a bench trial to divide the parties’ retirement and pension accounts, or the marital portion thereof, and other limited marital assets and liabilities. The trial court considered the relevant statutory factors and apportioned the remaining assets and liabilities 60% to the wife and 40% to the husband. The trial court also awarded the husband $1,000.00 in attorney’s fees and $180.42 in court reporter fees. The husband has appealed. Discerning no reversible error, we affirm.

Loudon County Court of Appeals 05/22/17
State of Tennessee v. Melvin King
E2016-01043-CCA-R3-CD
Authoring Judge: Judge Timothy L. Easter
Trial Court Judge: Judge Steven Wayne Sword

Defendant, Melvin King, was convicted by a Knox County jury of first degree murder, aggravated burglary, employing a firearm during the commission of a dangerous felony, three counts of especially aggravated kidnapping, reckless aggravated assault, attempted especially aggravated robbery, and aggravated animal cruelty. He was sentenced to an effective life sentence. On appeal, he argues that the evidence is insufficient to support dual convictions for especially aggravated kidnapping and attempted especially aggravated robbery, that the trial court improperly allowed the State to admit autopsy photographs into evidence, and that the trial court improperly gave the jury an instruction on flight. After a review of the record, we affirm the judgments of the trial court. However, because the trial court did not enter judgment forms disposing of each count of the indictment, we remand the matter to the trial court for entry of a separate judgment form for each count of the indictment.

Knox County Court of Criminal Appeals 05/22/17
In Re Lewis Bonding Company
W2016-02171-CCA-R3-CD
Authoring Judge: Judge J. Ross Dyer
Trial Court Judge: Judge Donald H. Allen

The appellant, Lewis Bonding Company, appeals the denial of its “Petition to Allow Lewis Bonding Company to Use Real Property as Security Collateral,” arguing the trial court abused its discretion by denying the appellant’s request to pledge real property to underwrite bonds in lieu of a cash deposit with the clerk of court. The State contends the trial court’s denial of the petition was a proper use of its broad discretion to regulate bondsmen. Following our review of the record and pertinent authorities, we agree with the State and affirm the judgment of the trial court.

Madison County Court of Criminal Appeals 05/19/17
Kelvin Winn v. State of Tennessee
W2016-02200-CCA-R3-PC
Authoring Judge: Judge Robert L. Holloway, Jr.
Trial Court Judge: Judge James C. Beasley, Jr.

The Petitioner, Kelvin Winn, was convicted of first degree felony murder and received a life sentence. He filed a petition for post-conviction relief, which the post-conviction court denied. On appeal, the Petitioner argues that trial counsel’s performance was deficient for failing to: (1) obtain an enhanced version of the surveillance video of the gas station; (2) proffer actual evidence of the Petitioner’s height to the jury; (3) submit the Petitioner’s clothing to be tested for blood; and (4) investigate the State’s jailhouse informant for possible impeachment evidence. The Petitioner asserts that he was prejudiced by trial counsel’s deficient performance because, absent these deficiencies, the jury would not have convicted the Petitioner. Discerning no error in the post-conviction court’s decision, we affirm.

Shelby County Court of Criminal Appeals 05/19/17
State of Tennessee v. James Courtney Shane
W2016-01976-CCA-R3-CD
Authoring Judge: Judge Alan E. Glenn
Trial Court Judge: Judge Jeffrey W. Parham

The Defendant, James Courtney Shane, was convicted by a Weakley County Circuit Court jury of facilitation of robbery, a Class D felony, and was sentenced by the trial court as a Range II offender to five years in the Department of Correction, to be served consecutively to his sentence in a federal case. On appeal, the Defendant challenges the sufficiency of the evidence of his identity and argues that the trial court imposed an excessive sentence. Following our review, we affirm the judgment of the trial court.

Weakley County Court of Criminal Appeals 05/19/17
State of Tennessee v. Kevin Scott Burris
E2016-01508-CCA-R3-CD
Authoring Judge: Judge Robert L. Holloway, Jr.
Trial Court Judge: Judge Tammy M. Harrington

Kevin Scott Burris’ (“the Defendant”) community corrections officer filed an affidavit, alleging that the Defendant had violated the conditions of community corrections. Following two hearings, the trial court revoked the Defendant’s community corrections supervision and ordered him to serve the balance of his sentence in confinement. On appeal, the Defendant argues that the trial court abused its discretion by ordering him to serve his sentence in confinement. After a review of the record and applicable law, we conclude that the trial court did not abuse its discretion. The judgment of the trial court is affirmed.

Blount County Court of Criminal Appeals 05/19/17
State of Tennessee v. Bruce Wayne Sutton
M2016-00284-CCA-R3-CD
Authoring Judge: Judge Timothy L. Easter
Trial Court Judge: Judge Forest A. Durard, Jr.

Defendant, Bruce Wayne Sutton, pled guilty to attempted initiation of a process to manufacture methamphetamine and received a sentence of nine years and six months.  As part of his plea agreement, Defendant reserved two certified questions of law pursuant to Tennessee Rule of Criminal Procedure 37(b)(2)(A) with regard to the trial court’s denial of his motion to suppress evidence obtained during a warrantless search of a residence.  Upon our review of the record and applicable authorities, we determine that based upon his disclaimer of interest in the property, Defendant was without standing to complain about the search.  Therefore, we affirm the judgment of the trial court.

Lincoln County Court of Criminal Appeals 05/19/17
State of Tennessee, ex rel., Deedra Climer Bass v. Jose Ramon Gonzalez-Perez
W2016-00655-COA-R3-JV
Authoring Judge: Chief Judge D. Michael Swiney
Trial Court Judge: Special Judge Nancy Percer Kessler

Jose Ramon Gonzalez-Perez (“Father”) appeals the March 7, 2016 order of the Juvenile Court for Shelby County (“the Juvenile Court”) finding him in contempt for non-payment of child support. Father raises several issues including whether Father can be held guilty of contempt when benefits Father receives pursuant to 33 U.S.C.A. § 901 et seq., the Longshore and Harbor Workers’ Compensation Act, are exempt from “all claims of creditors and from levy, execution, and attachment or other remedy for recovery or collection of a debt . . . ” under § 916 of the Longshore and Harbor Workers’ Compensation Act; whether the Longshore and Harbor Workers’ Compensation Act preempts inclusion of Father’s benefits from the calculation of child support; and whether Father was guilty of contempt for non-payment of child support. We find and hold that although the benefits Father receives are exempt from levy, execution, attachment, etc., Father may be found guilty of contempt; that the Longshore and Harbor Workers’ Compensation Act does not preempt the inclusion of the benefits Father receives from the calculation of child support; and that Father had the present ability to pay child support and willfully failed to do so making Father guilty of contempt. We, therefore, affirm the March 7, 2016 order of the Juvenile Court finding Father in contempt for non-payment of child support.

Shelby County Court of Appeals 05/19/17
State of Tennessee v. Torian Dillard
W2016-01551-CCA-R3-CD
Authoring Judge: Judge J. Ross Dyer
Trial Court Judge: Judge James C. Beasley, Jr.

The defendant, Torian Dillard, appeals from the Shelby County Criminal Court’s denial of his Tennessee Rule of Criminal Procedure 36.1 motion to correct an illegal sentence. The defendant contends his sentences are illegal because the State failed to provide proper notice of its intent to seek enhanced punishment pursuant to Tennessee Code Annotated § 40-35-202(a). The defendant also argues the trial court improperly relied on two prior theft convictions in classifying him as a career offender. Discerning no error, we affirm the judgment of the trial court.

Shelby County Court of Criminal Appeals 05/18/17
State of Tennessee v. James Johnson aka Guy Bonner
W2016-00868-CCA-R3-PC
Authoring Judge: Judge James Curwood Witt, Jr.
Trial Court Judge: Judge James Lammey

The petitioner, James Johnson aka Guy Bonner, appeals the denial of his petition for post-conviction relief, which petition apparently challenged his 2012 Shelby County Criminal Court jury convictions of burglary, theft of property valued at $500 or less, and resisting arrest. Because the petitioner has established sufficient facts to make a threshold showing that he complied with the “mailbox rule,” he is entitled to an evidentiary hearing at which he must establish by a preponderance of the evidence that he delivered his petition to the appropriate prison official for mailing before the expiration of the statute of limitations. Thus, we reverse the judgment of the post-conviction court and remand the case for an evidentiary hearing on the issue of the timeliness of the petition for post-conviction relief.

Shelby County Court of Criminal Appeals 05/18/17
State of Tennessee v. William Sappington
W2016-01010-CCA-R3-CD
Authoring Judge: Judge Camille R. McMullen
Trial Court Judge: Judge W. Mark Ward

The Defendant-Appellant, William Sappington, was convicted by a Shelby County jury of theft of property with the value of more than $10,000 but less than $60,000, a Class C felony. T.C.A. § 39-14-103, 105(a)(4). The sole issue presented for our review in this appeal as of right is whether the evidence is sufficient to support his conviction. Upon our review, we affirm the judgment of the trial court.

Shelby County Court of Criminal Appeals 05/18/17
State of Tennessee v. Charis Lynn Jetton
W2016-02107-CCA-R3-CD
Authoring Judge: Judge J. Ross Dyer
Trial Court Judge: Judge J. Weber McCraw

The defendant, Charis Lynn Jetton, pled guilty to voluntary manslaughter and possession of a firearm during the commission of a dangerous felony. Tenn. Code Ann. §§ 39-13-211, 39-17-1324(a). For her respective crimes, the trial court imposed consecutive sentences of seven years and three years in the Tennessee Department of Correction. On appeal, the defendant argues the trial court erroneously denied her request for alternative sentencing as to the voluntary manslaughter conviction. Following our review of the briefs, the record, and the applicable law, we affirm the defendant’s seven-year sentence to be served in confinement.

Fayette County Court of Criminal Appeals 05/18/17
State of Tennessee v. Roy Robinson
W2016-00263-CCA-R3-CD
Authoring Judge: Judge J. Ross Dyer
Trial Court Judge: Judge James C. Beasley, Jr.

A Shelby County jury found the defendant, Roy Robinson, guilty of aggravated assault and second degree murder. The trial court imposed an effective twenty-year sentence to be served at one hundred percent, and the defendant appealed. On appeal, the defendant challenges the sufficiency of the evidence supporting his second degree murder conviction, arguing he shot his victim in self-defense. The State asserts sufficient evidence exists to support the second degree murder conviction. After our review, we affirm the judgments of the trial court.

Shelby County Court of Criminal Appeals 05/18/17
Charles Steven Blocker v. Powell Valley Electric Cooperative, et al.
E2016-01053-SC-WCM-WC
Authoring Judge: Judge John W. McClarty
Trial Court Judge: Chancellor Elizabeth C. Asbury

Charles Steven Blocker (“Employee”) sustained a compensable injury to his cervical spine in November 2010.  Surgery was required to treat the injury.  He was able to return to work for Powell Valley Electric Cooperative (“Employer”) after that injury.  His claim for workers’ compensation benefits was settled.  Employee suffered a second, gradual injury to his cervical spine in January 2013.  He was unable to return to work after that injury.  He brought suit in the Chancery Court for Claiborne County against Employer and the Tennessee Department of Labor and Workforce Development, Second Injury Fund (“the Fund”).  The parties stipulated that Employee was permanently and totally disabled.  The only issue presented to the court was apportionment of the permanent total disability benefits between Employer and the Fund.  The trial court found that the second injury had caused a 9% permanent partial disability without reference to the prior injury.  Benefits were apportioned 9% to Employer and 91% to the Fund.  The Fund has appealed, contending that the trial court incorrectly apportioned the award.  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 reverse and remand for further proceedings.

Claiborne County Workers Compensation Panel 05/18/17
Claire Nicola Bell v. Timothy John Bell - Concurring
E2016-01180-COA-R3-CV
Authoring Judge: Judge Charles D. Susano, Jr.
Trial Court Judge: Judge W. Jeffrey Hollingsworth

I concur in the majority’s determination that the evidence does not preponderate against the trial court’s judgment (1) finding a material change in circumstances; (2) holding that “the best interest of the children [is] that [Mr. Bell] be the Primary Residential Parent;” and (3) awarding father 215 days of residential parenting time with the balance of days awarded to mother.

Hamilton County Court of Appeals 05/18/17
State of Tennessee v. Mack Jeffery Thompson
M2015-01601-CCA-R3-CD
Authoring Judge: Judge Norma McGee Ogle
Trial Court Judge: Judge Seth Norman

The Appellant, Mack Jeffery Thompson, filed a motion to correct an illegal sentence pursuant to Tennessee Rule of Criminal Procedure 36.1.  The trial court denied the motion, and the Appellant timely filed a notice of appeal.  Based upon our review of the record and the parties’ briefs, we affirm the trial court’s denial of the motion but remand the case for correction of a clerical error on the judgment of conviction.

Davidson County Court of Criminal Appeals 05/18/17
Claire Nicola Bell v. Timothy John Bell
E2016-01180-COA-R3-CV
Authoring Judge: Judge D. Michael Swiney
Trial Court Judge: Judge W. Jeffrey Hollingsworth

This appeal concerns visitation in a post-divorce setting. Claire Nicola Bell (“Mother”) and Timothy John Bell (“Father”) are parents of the two minor children at issue, ages eleven and seven at trial (“the Children”). Mother and Father divorced in 2012. Both parents were named “co-primary residential parents” and each parent received equal visitation time with the Children. Later, as the arrangement grew contentious, Mother filed a petition for modification seeking to be named exclusive primary residential parent. Father, in turn, filed a counter-petition seeking the same designation. A hearing was conducted before the Circuit Court for Hamilton County (“the Trial Court”). Afterward, the Trial Court named Father primary residential parent and awarded him increased visitation time with the Children. We affirm the judgment of the Trial Court.

Hamilton County Court of Appeals 05/18/17