Court Opinions

Format: 03/30/2017
Format: 03/30/2017
In Re: John J.
M2016-01136-COA-R3-PT
Authoring Judge: Judge Richard H. Dinkins
Trial Court Judge: Judge Sam E. Benningfield, Jr.

This is an appeal from an order terminating a Mother’s parental rights to her son. The Department of Children’s Services filed a petition to have the child declared dependent and neglected when he was observed with burn marks on his thigh and fingers. He was adjudicated to be dependent and neglected, and custody was given to the Department. A petition to terminate Mother’s parental rights was subsequently filed and, following a trial, the court held that Mother had abandoned the child by failing to visit him and by engaging in behavior which exhibited a wanton disregard for the child’s welfare; the court also determined that termination of Mother’s rights was in the child’s best interest. Mother appeals, contending that the court erred in holding that termination of her rights was in the child’s best interest. After a thorough review of the record, we affirm the judgment of the trial court in all respects.  

White County Court of Appeals 02/17/17
Jose Luiz Dominquez v. State of Tennessee
M2016-00302-CCA-R3-HC
Authoring Judge: Judge Camille R. McMullen
Trial Court Judge: Mudge Monte Watkins

The Petitioner, Jose Luiz Dominguez, appeals the dismissal of his petition for writ of habeas corpus by the Davidson County Criminal Court.  On appeal, the Petitioner argues that the indictment was defective and that he received ineffective assistance of counsel, which rendered his guilty plea involuntary.  Upon review, we affirm the judgment of the habeas corpus court.

Davidson County Court of Criminal Appeals 02/17/17
State of Tennessee v. Timothy Dunn
M2016-00469-CCA-R3-CD
Authoring Judge: Judge Robert W. Wedemeyer
Trial Court Judge: Judge William R. Goodman, III

A Robertson County jury convicted the Defendant, Timothy Dunn, of sale of cocaine within 1,000 feet of a school and delivery of cocaine within 1,000 feet of a school.  The trial court merged the two convictions and sentenced the Defendant to serve seventeen years in the Tennessee Department of Correction.  On appeal, the Defendant argues that: (1) the trial court erred when it denied his request for a continuance; (2) the trial court erred when it allowed Detective Eddie Stewart to testify when he was not listed on the indictment; (3) the evidence is insufficient to support his conviction; and (4) his sentence is excessive.  After review, we affirm the trial court’s judgment.

Robertson County Court of Criminal Appeals 02/17/17
Austin Myles Tomlin v. State of Tennessee
M2016-00705-CCA-R3-PC
Authoring Judge: Judge Robert W. Wedemeyer
Trial Court Judge: Judge Forest A. Durand, Jr.

The Petitioner, Austin Myles Tomlin, pleaded guilty to two counts of vehicular homicide by intoxication, and the trial court sentenced him to ten years for each count, to be served consecutively.  The Petitioner filed a petition for post-conviction relief, which the post-conviction court denied after a hearing.  On appeal, the Petitioner contends that the post-conviction court erred when it dismissed his petition because his trial counsel was ineffective for failing to properly advise him regarding his guilty plea.  After review, we affirm the post-conviction court’s judgment.

Bedford County Court of Criminal Appeals 02/17/17
State of Tennessee v. Michael O. Brown
M2016-01343-CCA-R3-CD
Authoring Judge: Judge Robert W. Wedemeyer
Trial Court Judge: Judge Forest A. Durard, Jr.

In 1991, the Defendant, Michael O. Brown, was convicted of sale of cocaine, and the trial court sentenced him to eleven years of incarceration.  In 1996, the Defendant was convicted of sale of cocaine, and the trial court sentenced him to twenty years of incarceration to be served consecutively to his sentence for the 1991 conviction.  In 2006, the Defendant filed a motion to correct an illegal sentence.  The trial court concluded that the Defendant’s 1991 sentence had been improperly enhanced, so it modified the sentence to eight years.  The trial court further concluded that this modification did not affect the Defendant’s sentence for his 1996 conviction.  After filing multiple motions to correct an illegal sentence from 2006 to 2008, the Defendant filed a motion pursuant to Tennessee Rule of Criminal Procedure 36.1 in 2016, contending that his 1991 conviction was illegal and had been vacated, making the trial court’s use of it as an enhancement for his 1996 sentence improper.  The trial court dismissed the Defendant’s motion and denied his subsequent motion to reconsider.  The Defendant appeals, contending that his sentence for his 1996 conviction was improperly enhanced and that the trial court erred when it denied his motion to reconsider.  After a thorough review of the record, we affirm the trial court’s judgment.

Lincoln County Court of Criminal Appeals 02/17/17
State of Tennessee v. Christopher Minor-Concur In Part, Dissent In Part
W2016-00348-CCA-R3-CD
Authoring Judge: Judge Camille R. McMullen
Trial Court Judge: Judge Roy B. Morgan, Jr.

I concur with the majority with respect to its resolution of the Defendant's challenge to the sufficiency of the evidence. However, in light of this court;s holding in State v. Bonds, 502 S.W.3d 118 (Tenn. Crim. App. April 7, 2016), perm. app. denied (Tenn. Aug. 18, 2016), I respectfully disagree with the majority's conclusion that the Defendant has waived his challenge to the constitutionality of the gang enhancement statute.

Madison County Court of Criminal Appeals 02/16/17
State of Tennessee v. Christopher Minor
W2016-00348-CCA-R3-CD
Authoring Judge: Judge J. Ross Dyer
Trial Court Judge: Judge Roy B. Morgan, Jr.

In a bifurcated trial, a Madison County jury convicted the defendant, Christopher Minor, of two counts of first degree murder, two counts of aggravated burglary, one count of aggravated assault, one count of convicted felon in possession of a firearm, one count of employing a firearm during the commission of a dangerous felony, one count of employing a firearm during the commission of a dangerous felony having been previously been convicted of a felony, and six counts of violating Tennessee Code Annotated section 40-35-121, the criminal gang offenses enhancement statute. The trial court imposed an effective sentence of life plus twenty years. The defendant appeals his conviction, challenging the sufficiency of the evidence and the constitutionality of Tennessee Code Annotated section 40-35-121. The State argues the evidence was sufficient to support the defendant's convictions, and the defendant waived his constitutional challenge by raising his argument for the first time on appeal. We agree with the State and affirm the judgments of the trial court.

Madison County Court of Criminal Appeals 02/16/17
State of Tennessee v. David Troy Firestone
W2016-00347-CCA-R3-CD
Authoring Judge: Judge Robert L. Holloway, Jr.
Trial Court Judge: Judge Donald H. Allen

David Troy Firestone (“the Defendant”) pled guilty to burglary and theft of property. At a bench trial, the trial court found that the value of the stolen property was over $10,000. The trial court sentenced the Defendant to concurrent sentences of four years for the burglary conviction and to five years for the theft of property conviction as a Range I standard offender. On appeal, the Defendant argues that the evidence was insufficient to establish that the value of the stolen property exceeded $10,000, that he was improperly sentenced, and that the trial court erred in ordering the Defendant to pay $5,000 in restitution to Storage Town of America. After a thorough review of the record and case law, we affirm the Defendant’s convictions and sentences but reverse and vacate the trial court’s order of restitution to Storage Town of America.

Madison County Court of Criminal Appeals 02/16/17
Reginald Davis v. City of Memphis, et al.
W2016-00967-COA-R3-CV
Authoring Judge: Judge Brandon O. Gibson
Trial Court Judge: Chancellor Walter L. Evans

This appeal involves the termination of a firefighter’s employment with the City of Memphis. The firefighter appealed his termination to the City of Memphis Civil Service Commission. He also filed a lawsuit in federal district court asserting various causes of action against the City of Memphis and other defendants. After a six-day jury trial in federal court, the jury returned a verdict in favor of the defendants. The City of Memphis then sought dismissal of the firefighter’s appeal before the Civil Service Commission based on the principles of res judicata and/or collateral estoppel. The Civil Service Commission granted the motion and dismissed the appeal. The firefighter then sought review in chancery court, and the chancery court upheld the decision of the Civil Service Commission. We reverse and remand for further proceedings.

Shelby County Court of Appeals 02/16/17
Kenneth Dale Sanders v. State of Tennessee
M2016-00756-CCA-R3-ECN
Authoring Judge: Judge Alan E. Glenn
Trial Court Judge: Judge Thomas W. Graham

The pro se petitioner, Kenneth Dale Sanders, appeals the summary dismissal of his petition for writ of error coram nobis.  Following our review, we affirm the summary dismissal of the petition as time-barred pursuant to Rule 20, Rules of the Court of Criminal Appeals.

Grundy County Court of Criminal Appeals 02/16/17
State of Tennessee Ex Rel. Tanikia Yolanda Hurt v. William George Bulls, III
E2015-02078-COA-R3-JV
Authoring Judge: Judge Charles D. Susano, Jr.
Trial Court Judge: Judge Robert D. Philyaw

This case originated when the State, acting on behalf of Tanikia Yolanda Hurt (Mother), filed a petition against William George Bulls, III (Father) seeking to have him held in contempt because of his failure to pay child support. A juvenile court magistrate dismissed the State’s petition, finding that Father had paid all of his arrearage. On the day the court dismissed the petition, Mother filed a new pleading, a motion, again seeking a finding of contempt against Father. She once again alleged unpaid support in addition to other matters. This motion was also dismissed. Mother appeals. We affirm.

Hamilton County Court of Appeals 02/16/17
In Re Estate of Earsie L. Kirkman
W2016-00759-COA-R3-CV
Authoring Judge: Judge Kenny Armstrong
Trial Court Judge: Chancellor James F. Butler

This case involves the disposition of several certificates of deposit that were held in joint tenancy, with right of survivorship, by Decedent and her daughter, Appellee. Appellants, beneficiaries of Decedent’s estate, argued that the certificates of deposit were probate assets. The trial court denied the objection and closed the estate, finding that the certificates of deposit passed to Appellee as the surviving joint tenant. Appellants appeal. Affirmed and remanded.

Hardin County Court of Appeals 02/15/17
State of Tennessee v. George A. Belt
M2016-00663-CCA-R3-CD
Authoring Judge: Judge Alan E. Glenn
Trial Court Judge: Judge Forest A. Durard, Jr.

The defendant, George A. Belt, was convicted by a Bedford County Circuit Court jury of two counts of rape, Class B felonies; one count of incest, a Class C felony; and one count of purchasing alcohol for a minor, a Class A misdemeanor.  The trial court merged the rape convictions and imposed a sentence of twenty years for that conviction.  The court imposed a sentence of ten years for the incest conviction and eleven months and twenty- nine days for the purchasing alcohol for a minor conviction.  The court ordered that all the sentences be served concurrently.  On appeal, the defendant challenges the sufficiency of the evidence convicting him of rape and incest and also argues that the trial court imposed an excessive sentence.  After review, we affirm the judgments of the trial court.

Bedford County Court of Criminal Appeals 02/15/17
State of Tennessee v. Jason Larry Russo
M2016-00052-CCA-R3-CD
Authoring Judge: Judge Alan E. Glenn
Trial Court Judge: Judge F. Lee Russell

In the Bedford County Circuit Court, the defendant, Jason Larry Russo, pled guilty to second offense driving on a revoked license, a Class A misdemeanor, and was found guilty by a jury of promotion of the manufacture of methamphetamine, a Class D felony.  He was sentenced to eleven months and twenty-nine days for the driving offense and twelve years for the drug offense, to be served consecutively.  On appeal, the defendant argues that the trial court erred in imposing consecutive sentences.  After review, we affirm the judgments of the trial court.

Bedford County Court of Criminal Appeals 02/15/17
State of Tennessee v. Marcia Latrice Taylor
M2016-00934-CCA-R3-CD
Authoring Judge: Judge Robert W. Wedemeyer
Trial Court Judge: Judge David L. Allen

A Maury County grand jury indicted the Defendant, Marcia Latrice Taylor, for one count of possession of 0.5 grams or more of a Schedule II substance, cocaine, with the intent to sell or deliver and one count of possession of 14.175 grams of a Schedule VI substance, marijuana, with the intent to sell or deliver.  The Defendant filed a motion to suppress the evidence found as a result of a search of an establishment that she owned based upon the credibility and reliability of the confidential informant whose statement police used as a basis for the warrant.  The trial court granted the motion, and the State appeals.  On appeal, the State contends that the trial court erred because the confidential informant’s reliability and knowledge were corroborated by independent police investigation.  After review, we reverse the judgment of the trial court and remand the case for proceedings consistent with this opinion.

Maury County Court of Criminal Appeals 02/15/17
Horace E. Hollis, Jr. v. State of Tennessee
M2013-01509-CCA-R3-PC
Authoring Judge: Judge Camille R. McMullen
Trial Court Judge: Judge Robert E. Burch

This appeal of the denial of post-conviction relief is before this court pursuant to remand by the Tennessee Supreme Court, which vacated this court’s August 2015 opinion upholding the post-conviction court’s denial of post-conviction relief because the transcript of the post-conviction hearing was not included in the appellate record. In August 2001, the Petitioner, Horace E. Hollis, Jr., was charged in an eighty (80) count presentment with forty counts of aggravated sexual battery and forty counts of rape of a child. The sexual abuse was committed against the Petitioner’s two minor granddaughters by marriage and, based on the presentment, occurred every other weekend from October 2000 to July 2001. The counts in the presentment were identical except for the victim’s name and date range. Before trial, the Petitioner’s third appointed counsel agreed to sever the counts of the indictment into separate groups of four, one count of rape of a child and one count of aggravated sexual battery for each of the two victims, theoretically resulting in twenty separate trials. The Petitioner was acquitted at his first trial. At his second trial, the Petitioner was convicted of rape of a child and aggravated sexual battery of each victim, for which he received an effective sentence of forty (40) years’ incarceration. Following his second trial, the remaining counts of the presentment were dismissed by the State. Although the Petitioner presents a multitude of issues for our review, we consider his primary issue to be whether third counsel was ineffective in failing to require an election of offenses in his first trial, which resulted in an acquittal. Because there was no election of offenses in his first trial, the Petitioner further contends that third counsel was ineffective in failing to object to his second trial based on double jeopardy principles. Following a thorough review of the record and applicable authority, we affirm the judgment of the post-conviction court.

Dickson County Court of Criminal Appeals 02/14/17
Alexis Mason v. State of Tennessee
W2015-01644-CCA-R3-PC
Authoring Judge: Judge Robert L. Holloway, Jr.
Trial Court Judge: Judge Lee V. Coffee

Alexis Mason (“the Petitioner”) was convicted of one count of second degree murder and three counts of aggravated assault by a Shelby County jury, for which the Petitioner received an effective sentence of thirty-seven years. The Petitioner filed a petition for post-conviction relief arguing that trial counsel was ineffective for failing to argue self-defense. The post-conviction court denied relief after finding that trial counsel’s failure to argue self-defense was not deficient and did not prejudice the Petitioner. On appeal, we affirm the post-conviction court’s denial of relief.

Shelby County Court of Criminal Appeals 02/14/17
State of Tennessee v. Antonio Richardson
W2016-00340-CCA-R3-CD
Authoring Judge: Judge Robert H. Montgomery, Jr.
Trial Court Judge: Judge James M. Lammey, Jr.

The Defendant, Antonio Richardson, was convicted by a Shelby County Criminal Court jury of first degree premeditated murder. See T.C.A. §§ 39-13-202 (2014). The trial court sentenced the Defendant to life imprisonment. On appeal, he contends that (1) the evidence is insufficient to support his conviction and (2) the trial court erred by admitting in evidence a photograph of the victim from the crime scene. We affirm the judgment of the trial court.

Shelby County Court of Criminal Appeals 02/13/17
James S. Schrade v. Cassandra Jean Ament Schrade
E2016-01105-COA-R3-CV
Authoring Judge: Judge D. Michael Swiney
Trial Court Judge: Judge Larry Michael Warner

This appeal concerns an effort to reduce an alimony obligation. James S. Schrade (“Husband”) filed a petition for reduction of alimony in the Probate and Family Court for Cumberland County (“the Trial Court”) against ex-wife Cassandra Jean Ament Schrade (“Wife”). Husband cited changed economic conditions that rendered him unable to meet his alimony obligation without tapping into his separate property. At trial, Husband also presented proof that a rebuttable presumption arose that Wife did not need the alimony as her adult children lived with her. The Trial Court found no material change in circumstances and also declined to find that the rebuttable presumption applied. Husband appeals. Finding the language of the marital dissolution agreement (“the MDA”) unequivocal and as market fluctuations are foreseeable, we affirm the Trial Court in its finding of no material change in circumstances. However, Husband presented sufficient proof to trigger the statutory rebuttable presumption for cohabitation with third parties, and we remand to the Trial Court for a determination on that issue. We affirm, in part, and, vacate, in part, the judgment of the Trial Court, and remand for further proceedings consistent with this Opinion.

Cumberland County Court of Appeals 02/13/17
State of Tennessee v. Rodney Lee Scott
E2015-01772-CCA-R3-CD
Authoring Judge: Judge Timothy L. Easter
Trial Court Judge: Judge Scott Green

Defendant, Rodney Lee Scott, was found guilty by a jury of attempted voluntary manslaughter, aggravated assault, reckless aggravated assault, leaving the scene of the accident, and public intoxication as the result of an incident described as road rage on December 16, 2013. As a result of the convictions, Defendant received an effective sentence of six years. Defendant appeals, challenging: (1) the sufficiency of the evidence; (2) the denial of a motion to sever; (3) the denial of a motion in limine which sought to allow Defendant to cross-examine the victims about their criminal history; (4) his dual convictions for attempted voluntary manslaughter and aggravated assault; and (5) the trial court’s denial of a mistrial. After a review of the evidence and authorities, we affirm the judgments of the trial court with respect to Defendant’s convictions for attempted voluntary manslaughter, aggravated assault, leaving the scene of the accident, and public intoxication. Because reckless aggravated assault cannot be a lesser included offense of aggravated assault based upon fearing imminent bodily injury, we reverse and dismiss Defendant’s conviction for reckless aggravated assault. On remand, the trial court should enter judgment forms dismissing Counts Four and Seven of the indictment.

Knox County Court of Criminal Appeals 02/13/17
State of Tennessee v. Norman Eugene Clark
E2016-01629-COA-R3-CV
Authoring Judge: Judge D. Michael Swiney
Trial Court Judge: Judge Steven W. Sword

The State of Tennessee (“the State”) attempted to divest Dateline NBC and NBCUniversal News Group of protection provided under Tenn. Code Ann. § 24-1-208, the press shield law. The Criminal Court for Knox County (“the Trial Court”) found and held that the State had failed to meet its burden under Tenn. Code Ann. § 24-1-208 and denied the State’s motion to divest. The State appeals. We find and hold that the State failed to prove by clear and convincing evidence both that “the information sought cannot reasonably be obtained by alternative means,” and that there is “a compelling and overriding public interest of the people of the state of Tennessee in the information.” Tenn. Code Ann. §§ 24-1-208(c)(2)(B) and (c)(2)(C). We affirm the judgment of the Trial Court denying the State’s motion to divest.

Knox County Court of Appeals 02/13/17
Gerald Rush, et al. v. Jackson Surgical Associates PA, et al.
W2016-01289-COA-R3-CV
Authoring Judge: Judge Kenny Armstrong
Trial Court Judge: Judge Kyle Atkins

This is a healthcare liability action. After sustaining injuries as a result of alleged surgical error, Appellant filed this action against the surgeon and his medical group. Appellees moved to dismiss the action for failure to comply with the notice requirement of Tennessee Code Annotated Section 29-26-121(a)(2)(E). The trial court granted the motion to dismiss, and Appellant appeals. Discerning no error, we affirm and remand.

Madison County Court of Appeals 02/13/17
Elizabeth Madeline Shelton Bewick v. Robert Kent Bewick
M2015-02009-COA-R3-CV
Authoring Judge: Judge Arnold B. Goldin
Trial Court Judge: Senior Judge Jon Kerry Blackwood

This appeal stems from a divorce proceeding where the wife was awarded a divorce on the ground of adultery. The husband appeals and raises several issues related to the trial court’s division of the marital estate. He also challenges the trial court’s award of alimony in solido to the wife. Having reviewed the record transmitted to us on appeal, we affirm the trial court’s division of the marital estate but vacate the award of alimony and remand for further proceedings consistent with this Opinion.

Warren County Court of Appeals 02/13/17
Tamir Clark v. State of Tennessee
M2016-01079-CCA-R3-ECN
Authoring Judge: Judge Robert W. Wedemeyer
Trial Court Judge: Judge Royce Taylor

In 2012, the Petitioner, Tamir Clark, pleaded guilty to especially aggravated kidnapping, arson, especially aggravated robbery, and attempted first degree murder.  The Petitioner later filed a post-conviction petition alleging ineffective assistance of counsel and that his guilty plea was involuntary.  The post-conviction court denied the petition, and this Court affirmed the denial on appeal.  See State v.Tamir Clark, No. M2014-00618-CCA-R3-PC, 2014 WL 7191536, at *1 (Tenn. Crim. App., at Nashville, Dec. 18, 2014), perm. app. denied (Tenn. April 13, 2015).  On February 24, 2016, the Petitioner filed a petition for a writ of error coram nobis alleging newly discovered evidence.  In March 2016, the trial court issued an order dismissing the petition as time-barred.  We affirm the trial court’s judgment.

Rutherford County Court of Criminal Appeals 02/13/17
Tornita N. Crenshaw v. State of Tennessee
M2016-01045-CCA-R3-ECN
Authoring Judge: Judge Robert W. Wedemeyer
Trial Court Judge: Judge Steve R. Dozier

In 2008, a jury found the Petitioner, Tornita N. Crenshaw, guilty of two counts of aggravated robbery, one count of aggravated burglary, one count of especially aggravated kidnapping, and one count of coercion of a witness.  The jury also convicted three co-defendants related to these offenses.  On joint direct appeal, this Court affirmed the Petitioner’s convictions.  See State v.Lance Sandifer, Stephon Dante Cunningham, Tornita Crenshaw, & Glenard Thorne, No. M2008-02849-CCA-R3-CD, 2010 WL 5343202, at *1 (Tenn. Crim. App., at Nashville, Dec. 21, 2010), perm. app. denied (Tenn. May 26, 2011).  On April 11, 2016, the Petitioner filed a petition for a writ of error coram nobis alleging numerous errors.  The trial court issued an order on April 25, 2016, dismissing the petition as time-barred.  We affirm the trial court’s judgment.

Davidson County Court of Criminal Appeals 02/13/17