Court Opinions

Format: 06/24/2017
Format: 06/24/2017
State of Tennessee v. Dominique Greer - concurring opinion
E2015-00922-CCA-R3-CD
Authoring Judge: Judge D. Kelly Thomas, Jr.
Trial Court Judge: Judge Rebecca J. Stern

I concur in the results reached by the majority but write separately to express a different conclusion regarding the admissibility of evidence of the Defendant’s robbery of Mr. Carroll. The majority holds that the Defendant’s robbery of Mr. Carroll was properly admitted to prove identity and intent for the charged offenses. However, I believe that the probative value of the Defendant’s prior bad act is outweighed by the danger of unfair prejudice to the Defendant. Thus, the evidence that the Defendant committed a prior robbery should not have been admitted pursuant to Tennessee Rule of Evidence 404(b).

Hamilton County Court of Criminal Appeals 05/17/17
State of Tennessee v. Dominique Greer
E2015-00922-CCA-R3-CD
Authoring Judge: Judge Thomas T. Woodall
Trial Court Judge: Judge Rebecca J. Stern

Defendant, Dominique Greer, was convicted of first degree felony murder and attempted especially aggravated robbery. He received a life sentence for felony murder and eight years for attempted especially aggravated robbery to be served concurrently to the sentence for felony murder. On appeal, Defendant argues: (1) the trial court erred by admitting evidence of a prior robbery; (2) the trial court erred by instructing the jury that it could consider the prior robbery for issues other than intent and identity; (3) the trial court erred by allowing Detective Merritt to testify concerning Defendant’s cell phone records; (4) the trial court erred by overruling Defendant’s motion to suppress; (5) the trial court erred by allowing a constructive amendment to the felony murder indictment; (6) the evidence was insufficient to support Defendant’s felony murder conviction; and (7) there was cumulative error. Following our review, we reverse the judgments of the trial court because the trial court committed reversible error in its final charge to the jury.

Hamilton County Court of Criminal Appeals 05/17/17
Debeora D. Whitfield v. Holly Thrasher Schroeder
M2016-00791-COA-R3-CV
Authoring Judge: Judge Brandon O. Gibson
Trial Court Judge: Judge Joe Thompson

This appeal involves an option to purchase real estate. After a bench trial, the circuit court awarded the tenant a judgment for $12,000. Because the trial court did not make sufficient findings of fact and conclusions of law to enable meaningful appellate review, we vacate the order and remand for further proceedings.

Sumner County Court of Appeals 05/17/17
Henry Bates v. State of Tennessee
W2016-00571-CCA-R3-PC
Authoring Judge: Judge Camille R. McMullen
Trial Court Judge: Judge James C. Beasley, Jr.

The petitioner, Henry Bates, was convicted by a Shelby County jury of aggravated robbery, burglary of a building, and vandalism of $1000 or more, for which he received an effective sentence of forty-two years’ imprisonment. He now appeals the postconviction court’s denial of relief arguing that trial counsel was ineffective in failing to present an alibi witness at trial. Upon our review, we affirm the judgment of the postconviction court.

Shelby County Court of Criminal Appeals 05/17/17
Young Bok Song, AKA Mike v. State of Tennessee
M2015-02317-CCA-R3-ECN
Authoring Judge: Presiding Judge Thomas T. Woodall
Trial Court Judge: Judge Steve R. Dozier

Petitioner, Young Bok Song, filed a petition for writ of error coram nobis concerning his multiple convictions for rape of a child and aggravated sexual battery and his sixty-five-year sentence. The petition was dismissed without an evidentiary hearing, and Petitioner appeals. We affirm the judgment of the coram nobis court.

Davidson County Court of Criminal Appeals 05/17/17
State of Tennessee v. Donald Gwin
W2016-01783-CCA-R3-CD
Authoring Judge: Judge Alan E. Glenn
Trial Court Judge: Judge J. Robert Carter, Jr.

The Defendant, Donald Gwin, was convicted by a Shelby County Criminal Court jury of aggravated rape, a Class A felony; aggravated robbery, a Class B felony; aggravated burglary, a Class C felony; and aggravated assault, a Class C felony. He was sentenced to an effective term of thirty-five years in the Department of Correction. On appeal, the Defendant argues that: (1) the trial court erred in ruling that his prior sexual battery conviction, similar to that for which he was on trial, could be introduced if he opened the door to its admissibility; (2) the trial court abused its discretion in denying his motion for a mistrial after the jury heard that he wore an ankle bracelet for monitoring as part of the sex offender registry; (3) the trial court abused its discretion in denying his motion for a mistrial after a local newspaper printed an article about his case; and (4) the evidence is insufficient to sustain his conviction for aggravated robbery. After review, we affirm the judgments of the trial court.

Shelby County Court of Criminal Appeals 05/17/17
Phillip Jay Seifert v. Maria Coveny Seifert
E2016-01340-COA-R3-CV
Authoring Judge: Judge Frank G. Clement, Jr.
Trial Court Judge: Judge Michael W. Moyers

The principal issues in this divorce action arise from the parties’ antenuptial agreement. The trial court declared the parties divorced, classified the bulk of the assets as Husband’s separate property, divided the modest amount of assets that were classified as marital property, and awarded Wife alimony in futuro of $8,000 per month and alimony in solido of $500,000. Both parties appeal. Wife contends the court erred in classifying the bulk of the assets as Husband’s separate property and that the alimony awarded to her is insufficient. She also requests an award of attorney fees incurred on appeal. Husband contends that all of the income he earned during the marriage is his separate property, that all assets he acquired with that income is his separate property, and that the antenuptial agreement prohibited the trial court from considering the value of his separate property in awarding alimony to Wife. We affirm the trial court in all respects. We also find that Wife is entitled to recover reasonable and necessary attorney fees incurred on appeal.

Knox County Court of Appeals 05/17/17
Jeffery Lee Miller v. State of Tennessee
M2016-00706-CCA-R3-ECN
Authoring Judge: Judge Camille R. McMullen
Trial Court Judge: Judge William R. Goodman, III

The Petitioner, Jeffery Lee Miller, appeals the Montgomery County Circuit Court’s dismissal of his petition for writ of error coram nobis. The Petitioner seeks relief from his premeditated first degree murder conviction. The Petitioner argues that (1) the coram nobis court erred by determining that due process considerations did not toll the statute of limitations; (2) the coram nobis court abused its discretion by applying an incorrect legal standard regarding reasonable diligence in its order and final judgment; (3) the coram nobis court’s grounds for dismissal were erroneous; and (4) the coram nobis court’s assessment of the State’s open file policy was erroneous. Upon review, we affirm the judgment of the coram nobis court.

Montgomery County Court of Criminal Appeals 05/17/17
James R. Wilson v. State of Tennessee
M2016-01493-CCA-R3-ECN
Authoring Judge: Presiding Judge Thomas T. Woodall
Trial Court Judge: Judge Steve R. Dozier

Petitioner, James R. Wilson, appeals the summary dismissal of his petition for writ of error coram nobis that was dismissed by the trial court as being time-barred and for failing to allege newly discovered evidence. Petitioner now appeals the denial of his petition. After review, we affirm the judgment of the trial court.

Davidson County Court of Criminal Appeals 05/17/17
State of Tennessee v. Lucy Caitlin Alford and Jeremie Alford
M2016-01764-CCA-R3-CD
Authoring Judge: Judge J. Ross Dyer
Trial Court Judge: Judge Thomas W. Graham

Following the denial of suppression motions, the defendants, Lucy Caitlin Alford and Jeremie Alford, entered guilty pleas in Franklin County Circuit Court to felony possession of methamphetamine and reserved the right to appeal certified questions of law relating to the sufficiency of the affidavit supporting the search warrant issued in this case.  The defendants assert the affidavit, which was based on information provided by a confidential informant, failed to meet the two-pronged Aguilar-Spinelli test for probable cause, lacked independent police corroboration, and was materially misleading.  The State contends the affidavit was sufficient.  Following our review of the record and pertinent authorities, including the recent Tennessee Supreme Court decision of State v. Jerry Lewis Tuttle, ___S.W.3d ___, No. M2014-00566-SC-R11-CD, 2017 WL 1246855 (Tenn. Apr. 5, 2017), we affirm the judgments of the trial court.

Franklin County Court of Criminal Appeals 05/17/17
Wayne A. Howes, et al. v. Mark Swanner, et al.
M2016-01892-COA-R3-CV
Authoring Judge: Judge Andy D. Bennett
Trial Court Judge: Judge Ross H. Hicks

Homeowners filed suit for breach of contract and fraud and/or negligent representation against the owners of a restoration business who performed repairs on their house after a fire.  When the defendants failed to respond to or appear at the hearing on the plaintiffs’ motion for summary judgment, the trial court granted summary judgment for the plaintiffs.  The defendants then filed a Tenn. R. Civ. P. 60 motion and affidavits stating that they did not receive notice of the hearing on the motion for summary judgment.  The trial court held a hearing on the Rule 60 motion and denied the motion.  Because there is no transcript or statement of the evidence regarding the hearing on the summary judgment motion or on the Rule 60 motion, we must accept the trial court’s findings of fact.  We find no abuse of discretion in the trial court’s denial of the plaintiffs’ Rule 60 motion.  

Montgomery County Court of Appeals 05/17/17
Winston Keith Kyle v. Janice Gomer Kyle
W2016-01699-COA-R3-CV
Authoring Judge: Judge Kenny Armstrong
Trial Court Judge: Chancellor George R. Ellis

This is an appeal from a final decree of divorce. The trial court's final decree of divorce included a division of marital property but failed to adjudicate the issue of alimony. A subsequent order states that the parties “agreed that [Wife’s] claim for alimony in futuro and rehabilitative alimony . . . are dismissed.” The appellate record contains no transcript or statement of the evidence for our review as required by the Tennessee Rules of Appellant Procedure. Accordingly, we conclude that there was sufficient evidence to support the trial court’s finding. Affirmed and remanded.

Gibson County Court of Appeals 05/17/17
Jamie Kay Cardle v. Daniel Marcum Cardle
M2016-00862-COA-R3-CV
Authoring Judge: Judge Andy D. Bennett
Trial Court Judge: Chancellor Louis W. Oliver

Wife filed a complaint for divorce following a fifteen-year marriage.  The trial court granted Wife a divorce, distributed the marital estate, and awarded Wife alimony.  The trial court granted Husband’s request to pay the alimony in solido award over a period of six years, with post-judgment interest payable at 10% interest per annum.  Husband appeals the division of some of the marital assets and debts, the award of alimony in solido, and the post-judgment interest award.  We affirm the trial court’s division of the marital estate and the award of alimony in solido, but we modify the post-judgment interest rate from 10% to 5.50% to conform with the interest on judgments statute, Tenn. Code Ann. § 47-14-121.

Sumner County Court of Appeals 05/17/17
Frankie Jason Cope v. State of Tennessee
W2016-01690-CCA-R3-PC
Authoring Judge: Judge Alan E. Glenn
Trial Court Judge: Judge Donald H. Allen

The pro se Petitioner, Frankie Jason Cope, appeals the summary dismissal of his petition for post-conviction DNA analysis. Following our review, we affirm the summary dismissal of the petition pursuant to Rule 20, Rules of the Court of Criminal Appeals.

Henderson County Court of Criminal Appeals 05/16/17
State of Tennessee v. Shane H. Bishop
W2016-01688-CCA-R3-CD
Authoring Judge: Judge Timothy L. Easter
Trial Court Judge: Judge Kyle Atkins

Defendant, Shane H. Bishop, pled guilty to vehicular homicide by intoxication. He appeals from his sentence of eleven years, arguing that the trial court abused its discretion by denying an alternative sentence. Because Defendant was ineligible for an alternative sentence, we affirm the judgment of the trial court.

Chester County Court of Criminal Appeals 05/16/17
State of Tennessee v. Eddie H. Pittman
W2016-00745-CCA-R3-CD
Authoring Judge: Judge J. Ross Dyer
Trial Court Judge: Judge Kyle Atkins

A Madison County jury found Eddie H. Pittman, the defendant, guilty of reckless endangerment with a deadly weapon, aggravated criminal trespass, and reckless aggravated assault. The trial court merged the reckless endangerment with a deadly weapon conviction with the reckless aggravated assault conviction and imposed an effective sentence of twelve years, eleven months, and twenty-nine days. On appeal, the defendant challenges the sufficiency of the evidence to sustain his convictions and argues the trial court erred when imposing consecutive sentences. Following our review of the record and the pertinent authorities, we affirm the judgments of the trial court.

Madison County Court of Criminal Appeals 05/16/17
Jarrod Reese Spicer v. State of Tennessee
W2016-02160-CCA-R3-PC
Authoring Judge: Judge J. Ross Dyer
Trial Court Judge: Judge Jeffrey W. Parham

The petitioner, Jarrod Reese Spicer, appeals the denial of his petition for post-conviction relief, arguing the trial court erred in finding he received effective assistance of counsel. More specifically, the petitioner claims counsel was ineffective because he failed to fully assist the petitioner until receiving full payment for his services, failed to subpoena certain witnesses to testify at trial, failed to obtain a medical expert to rebut the medical examiner’s opinion regarding the victim’s cause of death, and failed to obtain a mental evaluation. Following our review of the record and submissions of the parties, we affirm the denial of the petition.

Obion County Court of Criminal Appeals 05/16/17
Mindy Leigh Veard v. Edward Eugene Veard, Jr.
M2017-00898-COA-T10B-CV
Authoring Judge: Judge Brandon O. Gibson
Trial Court Judge: Judge Philip E. Smith

This accelerated interlocutory appeal arises from the trial court’s denial of a motion for recusal. After carefully reviewing the trial court’s ruling pursuant to the de novo standard of review required under Tennessee Supreme Court Rule 10B, we affirm the decision of the trial court denying the motion for recusal.        

Davidson County Court of Appeals 05/16/17
Sheila Mitchell v. State of Tennessee
W2016-01356-CCA-R3-PC
Authoring Judge: Judge Camille R. McMullen
Trial Court Judge: Judge Clayburn Peeples

Pro se petitioner Sheila Mitchell appeals from the post-conviction court’s summary denial of relief. In this appeal, the State concedes, and we agree, that the petitioner stated a colorable claim in her petition. Accordingly, we reverse the judgment of the post-conviction court and remand for appointment of counsel.

Gibson County Court of Criminal Appeals 05/16/17
Gallatin Housing Authority v. Mahoganee Pelt
M2015-01694-COA-R3-CV
Authoring Judge: Judge W. Neal McBrayer
Trial Court Judge: Judge Joe Thompson

This appeal arises from an indigent tenant’s petition for writs of certiorari and supersedeas for a de novo review of an unlawful detainer action originally filed in general sessions court. The tenant sought to remain in possession of the leased premises during the review without posting a possessory bond. The circuit court initially issued the writs and, in lieu of a bond, ordered the tenant to pay rent as it became due. The landlord objected, arguing that a possessory bond was mandatory under the applicable statute. The circuit court then ordered the tenant to post a bond and, after the tenant failed to comply, dismissed the previously issued writs. On appeal, the tenant argues that the circuit court erred in calculating the amount of the bond and in dismissing the writ of certiorari with the writ of supersedeas. She also contends that the landlord executed the writ of possession in violation of the initial stay of Tennessee Rule of Civil Procedure 62.01. We conclude that, although it erred in including court costs as part of the possessory bond in light of the tenant’s indigence, the trial court properly dismissed the writs of certiorari and supersedeas after the tenant failed to file a possessory bond. We also conclude that Rule 62.01 did not stay the dismissal of the writ of supersedeas. Consequently, we affirm.

Sumner County Court of Appeals 05/16/17
Steffon Hodges v. State of Tennessee
W2016-00895-CCA-R3-PC
Authoring Judge: Judge Camille R. McMullen
Trial Court Judge: Judge Roy B. Morgan, Jr.

The Petitioner, Steffon Hodges, appeals the denial of his petition for post-conviction relief by the Madison County Circuit Court. On appeal, the Petitioner argues that his guilty plea was involuntary and unknowing because he received ineffective assistance of counsel and was not advised of his rights before entering his guilty plea. After review, we affirm the judgment of the post-conviction court.

Madison County Court of Criminal Appeals 05/16/17
James Ryan Skelton v. Jenna Marie Skelton
M2015-01426-COA-R3-CV
Authoring Judge: Judge W. Neal McBrayer
Trial Court Judge: Chancellor Joseph Woodruff

A father and mother moved to modify a permanent parenting plan in which they were each named primary residential parent. Both parents alleged, for different reasons, that a material change in circumstance had occurred sufficient to modify custody. After a hearing, the court determined a material change in circumstance had occurred and that modification of the current joint custody arrangement was in the child’s best interest. The court named the father the primary residential parent and granted the mother liberal visitation. The mother appeals, arguing that the court erred in finding that her move was a material change and in dismissing her modification petition. Upon review, we conclude that the evidence does not preponderate against the chancery court’s findings, and the court did not err in dismissing Mother’s petition. Accordingly, we affirm.

Lewis County Court of Appeals 05/16/17
Wesley Finch v. O.B. Hofstetter/Anderson Trust, et al.
M2016-00562-COA-R3-CV
Authoring Judge: Judge Arnold B. Goldin
Trial Court Judge: Chancellor Russell T. Perkins

This appeal stems from a dispute over a tract of real property in Nashville.  The plaintiff, who claims to have entered into an enforceable contract for sale of the disputed tract, brought multiple claims against multiple defendants after the land was not transferred to him.  After competing cross-motions for summary judgment were filed, the trial court dismissed all of the plaintiff’s claims, finding, inter alia, that the plaintiff never entered into a valid, enforceable contract regarding the subject property.  For the reasons stated herein, we affirm and remand for further proceedings consistent with this Opinion. 

Davidson County Court of Appeals 05/16/17
Jaleel Jovan Stovall v. State of Tennessee
W2016-01981-CCA-R3-PC
Authoring Judge: Judge Robert L. Holloway, Jr.
Trial Court Judge: Judge J. Weber McCraw

The Petitioner, Jaleel Jovan Stovall, was convicted by a Hardeman County jury of rape of a child and received a sentence of twenty-five years at 100% service. The Petitioner filed a petition for post-conviction relief, which asserted that he was denied effective assistance of counsel. The post-conviction court denied relief. On appeal, the Petitioner argues that trial counsel’s performance was deficient for failing to object to hearsay introduced by the State and for failing to argue that a letter allegedly authored by the Petitioner was not properly authenticated. After a thorough review of the record and applicable case law, we affirm.

Hardeman County Court of Criminal Appeals 05/16/17
State of Tennessee v. Westley A. Albright
M2016-01217-CCA-R3-CD
Authoring Judge: Judge J. Ross Dyer
Trial Court Judge: Judge David D. Wolfe

The defendant, Westley A. Albright, pled nolo contendere to one count of soliciting a minor in violation of Tennessee Code Annotated section 39-13-528, a Class E felony, for which he received a one-year suspended sentence and deferred judicial diversion.  As a condition of probation, the defendant agreed to participate in therapeutic treatment for the duration of probation or until favorably discharged.  Prior to the conclusion of the one-year suspended sentence, the defendant’s treatment provider discharged him for failure to comply with the goals of his treatment program.  Following service of a probation warrant and a hearing, the trial court revoked the defendant’s deferred diversion and extended his probation for six months to allow for the completion of treatment.  On appeal, the defendant argues: (1) the trial court violated his due process rights by failing to advise him at the time he entered his nolo contendere plea that, as a condition of probation, he would be required to confess to the solicitation of a minor; (2) the trial court violated his due process rights by relying on a probation rule not referenced in the revocation warrant; and (3) the trial court erred when revoking his deferred diversion despite his completion of the objective requirements of the sex offender treatment program.  Upon review, we affirm the findings of the trial court.

Dickson County Court of Criminal Appeals 05/16/17