Tennessee Administrative Office of the Courts

Appellate Court Opinions

Format: 09/27/2016
Format: 09/27/2016
State of Tennessee v. James Walter Morgan
E2015-01959-CCA-R3-CD

The Defendant, James Walter Morgan, was found guilty by a Hamblen County Criminal Court jury of theft of property valued at $500 or less, a Class A misdemeanor. See T.C.A. § 39-14-103 (2014). The trial court sentenced the Defendant to eleven months, twenty-nine days of supervised probation. On appeal, the Defendant contends that the trial court erred in denying his request for judicial diversion. We affirm the judgment of the trial court.

Hamblen County Court of Criminal Appeals 09/27/16
State of Tennessee v. Michael D. Hernandez
E2015-01365-CCA-R3-CD
An Anderson County Circuit Court Jury convicted the appellant, Michael D. Hernandez, of one count of rape of a child, and he received a twenty-five-year sentence to be served at 100%. On appeal, the appellant contends that the evidence is insufficient to support the conviction; that the trial court erred by refusing to give him access to the victim's statement in an investigator's notes; that the trial court erred by failing to conduct an in camera review of the notes for exculpatory material; that the trial court erred by denying his motion to suppress evidence found in his home; that the trial court erred by defining “on or about” for the jury; that the trial court erred by giving sequential jury instructions; and that cumulative error warrants a new trial. Based upon the oral arguments, the record, and the parties' briefs, we affirm the judgment of the trial court.
 
Anderson County Court of Criminal Appeals 09/27/16
State of Tennessee v. Michael D. Hernandez - concurring and dissenting
E2015-01365-CCA-R3-CD
I agree with the majority's conclusion upholding the Defendant's conviction for rape of a child and his twenty-five-year sentence. Moreover, while I agree with the majority's conclusion that Ms. Powell's notes do not qualify as a “statement” of the victim pursuant to Tennessee Rule of Criminal Procedure 26.2, I write separately to address the issue of whether Ms. Powell's notes qualify as a “statement” of Ms. Powell as the testifying witness pursuant to Rule 26.2.
 
Anderson County Court of Criminal Appeals 09/27/16
State of Tennessee v. Johnny Malcolm Vinson
M2016-00068-CCA-R3-CD

The defendant, Johnny Malcolm Vinson, was convicted of aggravated assault in violation of an active order of protection pursuant to Tenn. Code Ann. § 39-13-102(c). On appeal, the defendant challenges the sufficiency of the evidence supporting his conviction arguing that conflicting testimony exists regarding his use of a deadly weapon and that the State failed to prove he acted with intent. After our review, we conclude that the defendant’s arguments are without merit. Accordingly, we affirm the judgment of the trial court.

Davidson County Court of Criminal Appeals 09/27/16
State of Tennessee v. Christopher Demotto Linsey
M2015-01851-CCA-R3-CD

The defendant, Christopher Demotto Linsey, was indicted for tampering with evidence, possession of cocaine with intent to sell or deliver, simple possession of marijuana, possession of heroin, and simple possession of alprazolam. After trial, a jury found the defendant guilty of felony tampering with evidence and misdemeanor simple possession of marijuana, for which he received an effective twelve-year sentence. On appeal, the defendant argues the evidence was insufficient to support the trial court’s decision to deny his request for a renunciation jury instruction with respect to the tampering with evidence charge. The State concedes the evidence presented at trial was insufficient to support the defendant’s tampering with evidence conviction and asserts the jury instruction question has been pretermitted. Upon review, we agree with the State. We affirm the defendant’s conviction for simple possession of marijuana and reverse and vacate the defendant’s conviction for tampering with evidence.

Montgomery County Court of Criminal Appeals 09/27/16
State of Tennessee v. Roy Daniel Mayo, II
M2015-02267-CCA-R3-CD

A jury found the Defendant, Roy Daniel Mayo II, guilty of one count of attempted burglary, a Class A misdemeanor; one count of possession of burglary tools, a Class A misdemeanor; and one count of evading arrest while operating a motor vehicle, a Class E felony.  The trial court imposed an aggregate sentence of six years in prison.  The Defendant does not challenge his misdemeanor convictions.  On appeal, he asserts that his evading arrest conviction should be reversed because the trial court’s jury instructions did not require the jury to find that the Defendant’s flight took place while he was operating the motor vehicle.  Given the facts surrounding the Defendant’s conviction, in particular the proof regarding whether his flight was by means of a vehicle or on foot, we conclude that the jury instructions failed to fairly submit the legal issues and misled the jury as to the applicable law and that the error was not harmless.  We accordingly reverse the Defendant’s felony evading arrest conviction, and we remand for new trial on that charge.

Cheatham County Court of Criminal Appeals 09/26/16
Kimberly E. Lapinsky v. Janice E. Cook et al.
E2015-00735-COA-R3-CV

Kimberly E. Lapinsky (“Plaintiff”) appeals the order of the Chancery Court for Sevier County (“the Trial Court”) granting summary judgment to Janice E. Cook, Kevin D. Cook (“the Cooks”) and Brenda Brewster (“Brewster”) in this lawsuit that arose from the sale of a house by the Cooks to Plaintiff. Plaintiff raises issues on appeal with regard to whether the Trial Court erred in granting summary judgment and whether the Trial Court erred in failing to allow Plaintiff to conduct additional discovery prior to ruling on the motions for summary judgment. The Cooks raise an issue regarding whether the Trial Court erred in denying their motion for attorney’s fees pursuant to Tenn. Code Ann. § 47-18-109. We find and hold that the Trial Court did not abuse its discretion in refusing to allow further discovery, that the defendants made properly supported motions for summary judgment, and that Plaintiff failed to show that there is a genuine disputed issue of material fact. As the Cooks and Brewster made properly supported motions for summary judgment and are entitled to summary judgment, we affirm the grants of summary judgment. We further find and hold that the Trial Court did not abuse its discretion in denying the motion for attorney’s fees.

Sevier County Court of Appeals 09/26/16
Penny Arvidson Richards v. Neil Kingsland Richards
E2015-00758-COA-R3-CV

In this divorce action, Penny Arvidson Richards (Wife) argues that the trial court’s judgment granting her a divorce and incorporating the parties’ marital dissolution agreement (MDA) should be set aside. Among other things, Wife alleges that she signed the MDA under duress and/or while she lacked the requisite mental capacity to do so. The trial court ruled that Wife failed to prove her defenses to the enforcement of the MDA. Wife appeals. We affirm.

Sullivan County Court of Appeals 09/26/16
State of Tennessee v. Guy B. Bernal
M2015-01489-CCA-R3-CD

A Maury County jury found the Defendant, Guy B. Bernal, guilty of rape.  The trial court sentenced the Defendant as a Range I offender to twelve years in the Tennessee Department of Correction.  On appeal, the Defendant asserts that: (1) his right against self-incrimination was violated when the trial court did not conduct a proper Momon hearing; (2) the convicting evidence is insufficient; and (3) his twelve-year sentence is excessive.  After a thorough review of the record and applicable law, we affirm the trial court’s judgment.

Maury County Court of Criminal Appeals 09/26/16
State of Tennessee v. Oscar C. Wells
W2016-00170-CCA-R3-CD

The defendant, Oscar C. Wells, appeals the summary dismissal of his motion, filed pursuant to Tennessee Rule of Criminal Procedure 36.1, to correct what he believes to be an illegal sentence imposed for his 2002 Shelby County Criminal Court jury conviction of first degree murder. Discerning no error, we affirm.

Shelby County Court of Criminal Appeals 09/26/16
State of Tennessee v. Jeremy Jones
W2015-01528-CCA-R3-CD

The defendant, Jeremy Jones, was convicted by a Shelby County Criminal Court jury of attempted first degree murder, a Class A felony; aggravated assault, a Class C felony; employment of a firearm during the commission of a dangerous felony, a Class C felony; and convicted felon in possession of a firearm, a Class C felony. The trial court imposed an effective term of twenty-five years in the Department of Correction. On appeal, he argues: (1) the evidence is insufficient to sustain his convictions; (2) the trial court failed to ensure an impartial jury venire; and (3) he is entitled to relief due to cumulative error at trial. After review, we affirm the judgments of the trial court. However, we remand for entry of a corrected judgment in Count 3 to check the box indicating that the defendant was found guilty in that count.

Shelby County Court of Criminal Appeals 09/26/16
State of Tennessee v. James Shettles
W2015-01529-CCA-R3-CD

The Defendant, James Shettles, was convicted by a Shelby County Criminal Court jury of aggravated assault, a Class C felony, for which he is serving a four-year workhouse sentence on probation. See T.C.A. § 30-13-102 (Supp. 2012) (amended 2013). On appeal he contends that: (1) the evidence is insufficient to support his conviction, (2) the trial court erred in admitting a recording of a 9-1-1 call, and (3) the trial court erred in failing to remove a juror. We affirm the judgment of the trial court.

Shelby County Court of Criminal Appeals 09/23/16
In Re Elizabeth D.
E2015-02097-COA-R3-PT

The custodians of a child filed a petition in Greene County Circuit Court to terminate the parental rights of the Father to the child, who had resided with the Custodians since birth; at the time of the hearing on the petition, the Father was incarcerated in Florida. Following a three-day hearing extending over one month, the court entered an order holding that Father failed to visit or support the child within the four months preceding his incarceration and terminating Father’s rights on the grounds of abandonment. Father appeals, asserting that the conduct of the hearing denied him his due process right to meaningfully participate in the termination proceeding and that the record does not support the determination that he willfully failed to visit or support his child. Finding no error, we affirm the judgment of the trial court.

Greene County Court of Appeals 09/23/16
Randall E. Pearson, M.D. et al. v. Paul Koczera et al.
E2015-02081-COA-R3-CV

This appeal arises from the trial court’s determination that it was without jurisdiction, following a prior appeal in the same matter, to act upon a motion seeking to alter or vacate an order entered after remand. The administrator ad litem for the third-party plaintiff has appealed from the trial court’s order determining that it lacked jurisdiction to act on her motion following remand. We determine that the trial court did possess jurisdiction to act on pending motions following the remand from the appellate courts. We therefore vacate the trial court’s order and remand this case for further proceedings. We also vacate the trial court’s order granting sanctions against the administrator ad litem for filing her motion to alter or vacate.

Anderson County Court of Appeals 09/23/16
James F. Logan, Jr. et al. v. The Estate of Mildred Cannon et al.
E2015-02254-COA-R3-CV
This case involves a one-quarter ownership interest in an unimproved 7.18-acre tract of real property located in Bradley County, Tennessee (“the Property”). The plaintiff, attorney James F. Logan, Jr., asserts that he purchased a one-quarter interest in the Property from Sam and Mildred Cannon in 1974. Sam and Mildred Cannon were divorced in 1979, and Mr. Cannon remarried. Upon Mr. Cannon’s death in 2002, he was survived by his second wife, Yvonne, and two adult children from his marriage to Mildred Cannon. Prior to commencement of this action, Yvonne Cannon conveyed any interest she had in the disputed property to Mr. Logan via quitclaim deed. Mr. Logan, together with co-plaintiffs, who are co-tenants of the Property not participating in this appeal, subsequently filed this action in February 2011, seeking declaration of ownership in Mr. Logan’s name and clear title concerning his claimed one-quarter interest in the Property. They named as defendants Mildred Cannon; her daughter, both individually and in her capacity as trustee for Sam and Mildred Cannon’s son; and a successor trustee. The plaintiffs acknowledged that no deed reflecting Sam and Mildred Cannon’s purported conveyance to Mr. Logan had been recorded or could be produced. In the alternative, the plaintiffs pled adverse possession. Mildred Cannon died in September 2011, and her estate was substituted as a party in this action. The parties subsequently filed competing motions for summary judgment, with the defendants alleging that Mr. Logan’s claim could not satisfy the requirements of the Statute of Frauds and the plaintiffs amending their complaint to add alternative equitable theories of constructive trust and/or resulting trust. Following hearings, the trial court granted summary judgment in favor of the defendants. Mr. Logan appeals. We affirm the trial court’s findings that the evidence cannot satisfy the requirements of the Statute of Frauds or give rise to a constructive or resulting trust. We determine, however, that genuine issues of material fact exist regarding Mr. Logan’s claim of adverse possession, and we remand for further proceedings concerning this claim. We also determine that the trial court improperly found statements in an affidavit presented by an employee of Mr. Logan’s law firm to be inadmissible. We affirm the trial court’s judgment in all other respects.
 
Bradley County Court of Appeals 09/23/16
Caney Fork Electric Cooperative, Inc., et al. v. Tennessee State Board of Equalization
M2016-00316-COA-R12-CV

The Tennessee Attorney General opined that a tax exemption in favor of electric cooperatives found at Tenn. Code Ann. § 65-25-122(a) violates Article II, Section 28 of the Tennessee Constitution. The Board of Equalization began proceedings to recalculate the taxes of the electric cooperatives. Several electric cooperatives objected and maintained that the exemption under Tenn. Code Ann. § 65-25-122(a) was valid. The Board recalculated their taxes anyway. The electric cooperatives appealed. Although the Board of Equalization cannot rule on the constitutionality of the statute, we can. We find that Tenn. Code Ann. § 65-25-122(a) violates Article II, Section 28 of the Tennessee Constitution.

Court of Appeals 09/23/16
In re: Beckwith Church Of Christ
M2015-00085-COA-R3-CV

In this case, two former members of a dissolved church filed a petition seeking permission to sell the improved real property formerly occupied by the church and donate the money to a nonprofit Bible school or, in the alternative, to convey the property directly to the school. The petitioners filed suit against unknown former members of the church and obtained permission to serve the unknown respondents by publication in a local newspaper. After publication of the action, no responsive pleadings were filed, and the petitioners obtained a default judgment. Before the default judgment became final, a descendant of the original owners of the real property filed a motion to set aside the default judgment and dismiss the petition based on insufficient service of process. The court granted the motion, set aside the default judgment, and dismissed the petition with regard to the descendant. On appeal, the petitioners argue: (1) the chancery court erred in finding constructive service insufficient; (2) that the descendant waived his objections to service of process by filing a notice of appearance; and (3) that the descendant should be estopped from setting aside the judgment because he delayed asserting his rights. Upon review of the record, we conclude that service of process on the descendant was insufficient and that the descendant’s conduct did not preclude him from setting aside the void judgment. Therefore, we affirm the decision of the chancery court.  

Wilson County Court of Appeals 09/23/16
In re: Jason S., et al.
M2016-00226-COA-R3-PT

This case involves termination of the parental rights of a mother and father to their three children. Following a report of drug exposure and environmental neglect, the Tennessee Department of Children’s Services (“DCS”) obtained emergency temporary custody of the children. Approximately nine months after the children were removed from the parents’ home, DCS filed a petition to terminate the parental rights of both parents on the grounds of substantial noncompliance with the permanency plan, persistence of conditions, and severe child abuse. The petition also sought to terminate the mother’s parental rights on the additional ground of abandonment by willful failure to visit, and it sought to terminate the father’s parental rights on the ground of abandonment by an incarcerated parent. The juvenile court found all grounds were established by clear and convincing evidence and that termination of both parents’ parental rights was in the children’s best interests. Although we conclude that DCS did not prove by clear and convincing evidence that the mother abandoned the children by willful failure to visit, we affirm the termination of parental rights. 

Macon County Court of Appeals 09/23/16
Anthony Dewight Washington v. State of Tennessee
M2015-02309-CCA-R3-PC

Anthony Dewight Washington (“the Petitioner”) appeals the post-conviction court’s denial of his petition for post-conviction relief.  The Petitioner argues that trial counsel’s performance was deficient in failing to file a motion asking for the recusal of the trial judge, failing to file a motion to suppress evidence from a search of the Petitioner’s home, and failing to communicate with the Petitioner, investigate witnesses, and develop a trial strategy or defense.  The Petitioner argues that counsel’s deficiency prejudiced him because, but for the deficiencies, he would have accepted the State’s plea offer instead of proceeding to trial.  Upon thorough review of the appellate record and the applicable law, we affirm the judgment of the post-conviction court.

Davidson County Court of Criminal Appeals 09/22/16
In re C.C. et al.
E2016-00475-COA-R3-PT
The Department of Children’s Services filed a petition seeking, on the basis of four grounds, to terminate the parental rights of H.C. (Mother) to her four children, C.C., D.C., A.D., and S.D. (collectively the Children). In the same petition, DCS also sought to terminate, on three grounds, the parental rights of B.D., Mother’s long-time boyfriend and father of two of the Children, i.e., A.D. and S.D. (collectively the twins).The trial court found, by clear and convincing evidence, three grounds to terminate Mother’s parental rights and three grounds to terminate B.D.’s parental rights. By the same quantum of proof, the court found that termination is in the Children’s best interest. Mother and B.D. (collectively the parties) appeal. As modified, we affirm the judgment
of the trial court.
 
Jefferson County Court of Appeals 09/22/16
State of Tennessee v. Zachary David Strickland
M2015-02118-CCA-R3-CD

Defendant, Zachary David Strickland, was convicted of initiation of a process intended to result in the manufacture of methamphetamine and sentenced to ten years of incarceration.  After the denial of a motion for new trial, Defendant filed an untimely notice of appeal.  In the interests of justice, we waive the timely filing of the notice of appeal.  However, upon review of the evidence presented at trial, we determine that the evidence was sufficient to support the conviction.  Consequently, the judgment of the circuit court is affirmed.

Bedford County Court of Criminal Appeals 09/22/16
Tina Garrett v. State of Tennessee
M2015-01659-CCA-R3-PC

In June 2013, the Petitioner, Tina Garrett, entered a “best interests” guilty plea to first degree murder in exchange for a life sentence.  She subsequently filed a petition for post-conviction relief alleging, among other things, that she received ineffective assistance of counsel and that her plea was unknowing and involuntary.  Following a hearing on the petition, the post-conviction court denied relief.  After a thorough review, we affirm the judgment of the post-conviction court.

Fentress County Court of Criminal Appeals 09/22/16
State of Tennessee v. Timothy Lewayne Morton
M2015-02279-CCA-R3-CD

The trial court found that the Defendant, Timothy Lewayne Morton, violated the conditions of his two-year probation when he was arrested for disorderly conduct and public intoxication.  The Defendant pled guilty to the disorderly conduct charge prior to the revocation hearing.  The Defendant asserts that there was insufficient evidence to support the finding of a violation.  After a thorough review of the record, we affirm the judgment of the trial court.

Sumner County Court of Criminal Appeals 09/22/16
In re Envy J., et al.
W2015-01197-COA-R3-PT

Mother appeals the trial court's termination of her parental rights. The trial court terminated her parental rights on the grounds that the children were victims of severe abuse and that mother had failed to financially support the children. The trial court also concluded that termination of parental rights was in the children's best interest. After a thorough review of the record, we conclude that there was not clear and convincing evidence of abandonment by willful failure to support. But, we conclude that there was clear and convincing evidence of severe abuse and that termination was in the best interest of the children. Consequently, we affirm the termination of Mother's parental rights.

Shelby County Court of Appeals 09/22/16
State of Tennessee v. Antwion Dowdy
W2015-02342-CCA-R3-CD

The Defendant, Antwion Dowdy, was convicted by a Shelby County Criminal Court jury of first degree premeditated murder and four counts of aggravated assault, Class C felonies. See T.C.A. §§ 39-13-202 (2014), 39-13-102 (2014) (amended 2015). The trial court sentenced the Defendant to concurrent sentences of life imprisonment for first degree murder and five years for each aggravated assault. On appeal, he contends that the evidence is insufficient to support his convictions. We affirm the judgments of the trial court.

Shelby County Court of Criminal Appeals 09/21/16