Tennessee Administrative Office of the Courts

Appellate Court Opinions

Format: 07/07/2020
Format: 07/07/2020
State of Tennessee v. Palikna Tosiwo Tosie
M2019-00811-CCA-R3-CD

The Defendant, Palikna Tosiwo Tosie, pleaded guilty to aggravated assault and reckless endangerment, and the trial court sentenced him to an effective sentence of six years to be served on probation. On appeal, the Defendant contends the trial court erred when it denied his request for judicial diversion. After review, we affirm the trial court’s judgment.

Montgomery County Court of Criminal Appeals 06/17/20
State of Tennessee v. Precious Briana Horton
M2019-00826-CCA-R3-CD

A jury convicted the Defendant, Precious Briana Horton, of two counts of aggravated robbery, and the Defendant pleaded guilty to one count of theft of property valued under $500. The trial court sentenced the Defendant to eight years of incarceration. On appeal, the Defendant contends that: (1) the State exercised its preemptory challenges in a discriminatory manner; (2) the trial court erred when it excluded testimony regarding the Defendant’s mental health; (3) the trial court prohibited her from offering to the jury her pretrial, out-of-court statement; and (4) the evidence is insufficient to sustain one of her aggravated robbery convictions. After review, we affirm the trial court’s judgments.

Davidson County Court of Criminal Appeals 06/17/20
Shawn Dallas Owen v. State of Tennessee
E2019-01242-CCA-R3-PC

The Petitioner, Shawn Dallas Owen, pled guilty to one count each of burglary, identity theft, credit card fraud, forgery, simple possession of marijuana, and driving on a revoked license. The Petitioner was given a total effective sentence of fourteen years to be served on supervised probation. Upon being served with a warrant alleging the Petitioner violated his probation, he subsequently filed a petition seeking post-conviction relief from his guilty plea, alleging, among other things, that trial counsel was ineffective because of the failure to properly advise the Petitioner regarding the grading of the credit card fraud offense to which he was pleading guilty. The Petitioner appeals the postconviction court’s denial of relief. Following our review, we affirm.

Knox County Court of Criminal Appeals 06/17/20
Thomas Mitchell v. State of Tennessee
W2019-01092-CCA-R3-PC

The Petitioner, Thomas Mitchell, appeals from the Shelby County Criminal Court’s denial of his petition for post-conviction relief from his conviction for burglary, for which he is serving a ten-year, Range III sentence. He contends that the post-conviction court erred in denying relief on his ineffective assistance of counsel claims that (1) counsel failed to object and to request a mistrial when a witness testified that a police officer knew the Petitioner by name, (2) counsel failed to impeach a witness with prior inconsistent statements, (3) counsel failed to call a police officer as a witness, (4) counsel stated in closing argument that a witness had given a statement to the police in which the witness said the Petitioner entered one of the buildings from which the Petitioner was alleged to have removed wiring, (5) counsel failed to state explicitly in closing argument that the jury should consider lesser included offenses, and (6) the cumulative effect of counsel’s deficient performance in multiple instances deprived the Petitioner of the effective assistance of counsel. We affirm the judgment of the post-conviction court.

Shelby County Court of Criminal Appeals 06/17/20
Zacharious Cole v. State of Tennessee
W2019-00841-CCA-R3-PC

The Petitioner, Zacharious Cole, appeals from the order of the Madison County Circuit Court denying post-conviction relief from his jury convictions of attempted first-degree murder, especially aggravated robbery, and employing a firearm during the commission of a dangerous felony, for which he received an effective term of twenty-six years’ imprisonment. Following an evidentiary hearing, the
post-conviction court determined that trial counsel’s advice to the Petitioner to enter a post-sentencing waiver of his right to direct appeal was deficient but not prejudicial. On appeal, the Petitioner argues that the post-conviction court erred in denying relief. Because the record shows that the Petitioner was denied the right to pursue a direct appeal based on ineffective assistance of counsel, this matter is remanded to the trial court for entry of an order allowing the filing of a motion for new trial. See T.C.A.
§ 40-30-113(a)(3). Accordingly, the judgment of the post-conviction court is reversed, and this matter is remanded for proceedings consistent with this opinion.

Madison County Court of Criminal Appeals 06/17/20
State of Tennessee v. Rodney Miller
W2019-00080-CCA-R3-CD

A Shelby County Jury found Defendant, Rodney Miller, guilty of rape of a child, aggravated statutory rape, and aggravated sexual battery. The trial court imposed a sentence of thirty-six years for rape of a child, four years for aggravated statutory rape, and ten years for aggravated sexual battery to be served consecutively in confinement. On appeal, Defendant raises the following issues: (1) whether the evidence was sufficient to support his conviction for rape of a child; (2) whether the trial court properly admitted the victim’s medical history provided during her SANE examination; (3) whether the trial court properly denied Defendant’s motion for a bill of particulars; (4) whether the trial court erred by failing to merge Defendant’s conviction for aggravated sexual battery into his conviction for rape of a child; (5) whether the trial court erred by ordering consecutive sentences; and (6) cumulative error. Upon reviewing the record and the applicable law, we affirm the judgments of the trial court.

Shelby County Court of Criminal Appeals 06/17/20
State of Tennessee v. Marcus Sturghill, III
W2018-01892-CCA-R3-CD

A jury convicted Defendant, Marcus Sturghill III, of two counts of aggravated robbery, and he received an eight-year sentence. Defendant was seventeen at the time he committed the crimes, and he gave a statement to law enforcement outside the presence of his parents, confirming that he had possession of a firearm on the date of the robbery. Defendant appeals the trial court’s denial of his motion to suppress his statement to police. We conclude that the trial court did not err in admitting the statement, and we affirm the convictions.

Madison County Court of Criminal Appeals 06/17/20
State of Tennessee v. Justin L. Kiser
E2019-01296-CCA-R3-CD

The Defendant, Justin L. Kiser, was convicted by a Union County Criminal Court jury of five counts of especially aggravated kidnapping, a Class A felony. See T.C.A. § 39-13- 305 (2018). On appeal, the Defendant contends that (1) the evidence is insufficient to support his convictions; (2) the trial court erred by not requiring the State to show its good faith efforts to locate a missing witness before declaring that witness unavailable for trial; and (3) the trial court erred by sentencing the Defendant to twenty-one years’ confinement. We affirm the judgments of the trial court.

Union County Court of Criminal Appeals 06/16/20
State of Tennessee v. DeMorris McKenzie
E2018-02226-CCA-R3-CD

Defendant, DeMorris McKenzie, was indicted by the Knox County Grand Jury for one count of being a felon in possession of a firearm, one count of first degree premeditated murder, and one count of driving on a revoked license. Following a jury trial, Defendant was convicted as charged on all three counts. Following a sentencing hearing, Defendant was sentenced to life imprisonment for his first degree murder conviction. He was sentenced to serve two years for his firearm conviction and six months for his driving on a revoked license conviction. Those sentences were ordered to run concurrently with his life sentence. In this appeal as of right, Defendant contends that: 1) the trial court erred by allowing a witness to testify as to what she observed in security video footage of the apartment complex where the shooting occurred; 2) the evidence at trial was insufficient to support Defendant’s conviction for first degree murder; and 3) Defendant is entitled to relief under the cumulative error doctrine. Having reviewed the entire record and the briefs of the parties, we find no reversible error and affirm the judgments of the trial court.

Knox County Court of Criminal Appeals 06/16/20
State of Tennessee v. Brian Keith Capps
M2019-00280-CCA-R3-CD

Defendant, Brian Keith Capps, was charged in four separate indictments with two counts of possession with intent to sell over 0.5 grams of methamphetamine within 1,000 feet of a school; three counts of sale of over 0.5 grams of methamphetamine within 1,000 feet of a school; two counts of possession of drug paraphernalia; one count of possession with intent to sell Oxycodone; one count of driving on a revoked license; one count of violation of the registration law; and one count of tampering with evidence. Defendant pleaded guilty to one count of possession with intent to sell over 0.5 grams of methamphetamine and two counts of sale of methamphetamine in a drug-free zone. All of the remaining counts were dismissed. Defendant received concurrent sentences of eight years to be served at 100 percent for each of his sale of methamphetamine convictions. He was sentenced to eight years to be served at 30 percent for his possession with intent to sell methamphetamine conviction, which was ordered to be served consecutively to his other sentences, for a total effective sentence of 16 years with 8 years to be served at 100 percent. Defendant sought to withdraw his guilty pleas. Following an evidentiary hearing, the trial court denied Defendant’s motion. Defendant appeals. Having reviewed the record and the briefs of the parties, we affirm the judgment of the trial court denying the motion to withdraw the guilty pleas. However, there are clerical errors in the judgments in case number 26162. The judgments show a 30 percent release eligibility. The plea agreement was for 100 percent service of the sentence. The trial court must enter corrected judgments upon remand.

Maury County Court of Criminal Appeals 06/16/20
First Century Bank v. Edward Duyos
E2019-01441-COA-R3-CV

This appeal arises from a writ of garnishment issued by a Tennessee court against a Florida resident, garnishing wages he earned in Florida while working for an Ohio corporation that is registered to do business in Tennessee. The writ of garnishment was served on the employer’s registered agent for service of process in Tennessee, and the employer answered the writ without objection. The debtor timely filed a motion to terminate the garnishment, asserting that Florida law exempted his wages from collection. Following a hearing, the trial court concluded, sua sponte, that it lacked “jurisdiction” to issue a garnishment order because the debtor “lives in Florida and works full time in Florida.” This appeal followed. We have determined that the debtor waived the issue of personal jurisdiction by consenting to the court’s authority. We have also determined that the trial court has the authority to issue the garnishment order against the nonresident debtor’s employer with respect to a debt owed to the nonresident debtor because the employer is authorized to do business in Tennessee and has an agent upon whom process may be served. Therefore, we reverse the judgment of the trial court and remand this matter with instructions for the trial court to determine, inter alia, whether the debtor is entitled to an exemption under Florida or Tennessee law, and if so, to what extent, and to enter judgment accordingly.

Claiborne County Court of Appeals 06/16/20
Robert Nelson Buford, III v. State of Tennessee
M2018-02176-CCA-R3-PC

Petitioner, Robert Nelson Buford, III, appeals the denial of his petition for post-conviction relief. Following a jury trial, Petitioner was convicted of facilitation of felony murder and facilitation of attempted especially aggravated robbery. The convictions were affirmed on direct appeal. State v. Robert Nelson Buford, III, No. M2011-00323-CCA-R3-CD, 2013 WL 375424, at *1-6 (Tenn. Crim. App. Jan. 31, 2013). Petitioner contends on appeal that the trial court erred in denying the petition for post-conviction relief because he was denied effective assistance of counsel. Following a review of the briefs and the record, we affirm the judgment of the post-conviction court.

Davidson County Court of Criminal Appeals 06/16/20
State of Tennessee v. Cardis Terran Burns
E2018-01685-CCA-R3-CD

Defendant, Cardis Terran Burns, appeals his convictions of multiple drug offenses and driving offenses. Defendant appealed, arguing that the trial court improperly admitted text messages from a phone seized during a traffic stop. While the appeal was pending, Defendant died. Counsel for Defendant filed a motion to abate ab initio. After the release of State v. Al Mutory, 581 S.W.3d 741 (Tenn. 2019), this Court denied Defendant’s motion and determined that the appeal should proceed despite Defendant’s death. After our review, we affirm the judgments of the trial court but remand for entry of a new judgment form to correct a clerical error to reflect that the conviction for possession of methamphetamine in a drug free zone with intent to deliver (count 4) merged with the conviction for possession of methamphetamine in a drug free zone with intent to sell (count 3).

Knox County Court of Criminal Appeals 06/16/20
Stephen P. Geller v. Henry County Board of Education
W2017-01678-SC-R11-CV

In this appeal, we apply the Teacher Tenure Act to the transfer of a tenured teacher, working as a school administrator, for lack of proper credentialing. The plaintiff school administrator challenges the decision of the director of schools to transfer him to a teaching position because the plaintiff did not have an administrator license. The trial court upheld the transfer. The Court of Appeals reversed. It held that a regulation required the director to review the administrative duties the plaintiff had performed in the past in order to determine whether an administrator license was required, and that the director’s failure to do so rendered his transfer decision arbitrary and capricious. Under Tennessee caselaw, judicial review of a school system director’s decision to transfer a teacher must be conducted in light of the director’s broad discretion to make such decisions. The proof showed that the director and the board of the school system had established certain priorities for its administrators. Absent an administrator license, in the upcoming school year, the regulation would have precluded the plaintiff from performing duties consistent with the school system’s priorities. Consequently, the director’s failure to consider the plaintiff’s past work did not render the transfer decision either arbitrary or capricious. Under these circumstances, we hold that the plaintiff failed to meet his burden of proving that the transfer decision was not made in good faith and was arbitrary, capricious, or improperly motivated. We reverse the decision of the Court of Appeals and affirm the trial court’s judgment in favor of the school board.

Henry County Supreme Court 06/15/20
State of Tennessee v. Marquail Patterson
E2019-01139-CCA-R3-CD

Marquail Patterson, Defendant, was found guilty by a jury of unlawful possession of a handgun, second degree murder, and five counts of attempted reckless endangerment after a shooting at Studio X in Knoxville in the summer of 2014 during which one person was killed and five people were injured. Defendant received an effective sentence of thirty years in incarceration to be served at 100%. In this delayed appeal, Defendant argues that the evidence was insufficient to support the convictions. After a review, we affirm the judgments of the trial court with respect to Defendant’s convictions for unlawful possession of a handgun and second degree murder. However, we vacate Defendant’s convictions for attempted reckless endangerment because Defendant was convicted of a crime which does not exist. Therefore, those convictions are void. Consequently, the judgments of the trial court are affirmed in part, vacated in part, and remanded.

Knox County Court of Criminal Appeals 06/15/20
State of Tennessee v. Christina Eads
E2019-01958-CCA-R3-CD

Defendant, Christina Eads, appeals the revocation of her supervised probation for her simple possession of a Schedule VI drug and possession of drug paraphernalia convictions. After a hearing, the trial court revoked Defendant’s probation and ordered her to serve the remainder of her sentence incarcerated. On appeal, Defendant argues that the trial court abused its discretion. We affirm the judgment of the trial court.

Blount County Court of Criminal Appeals 06/15/20
State of Tennessee v. Earl Harold Crisp
E2019-01223-CCA-R3-CD

After presenting with a criminal record that consists of 21 prior felony convictions and 16 prior misdemeanor convictions, Defendant, Earl Harold Crisp, appeals the trial court’s refusal to grant an alternative sentence despite his eligibility for probation. Because the trial court did not abuse its discretion, we affirm the judgment of the trial court.

Knox County Court of Criminal Appeals 06/15/20
Mark Lipton v. State of Tennessee
E2019-01037-CCA-R3-PC

Petitioner was convicted of aggravated assault by a Sevier County jury. Subsequently, Petitioner filed a direct appeal. This Court affirmed the judgments of the trial court. State v. Mark Lipton, No. E2012-02197-CCA-R3-CD, 2014 WL 4365969, at *16 (Tenn. Crim. App. Sept. 14, 2014), perm. app. denied (Tenn. Jan. 15, 2015). Petitioner timely filed a petition for post-conviction relief on January 12, 2016. On February 2, 2017, Petitioner filed a petition seeking relief under the Post-Conviction DNA Analysis Act of 2001. The same day Petitioner filed the petition for DNA analysis, he filed an amended post-conviction petition. Petitioner filed two additional amended post-conviction petitions. In the final amended petition, Petitioner abandoned arguments in his prior petitions and argued that he received ineffective assistance of counsel because trial counsel (1) failed to file a motion to disqualify the District Attorney; (2) failed file a change of venue motion; (3) failed to request specific Tennessee Rule of Evidence 404(b) findings of fact; and (4) erred by calling a particular trial witness. The post-conviction court summarily dismissed the petition for DNA analysis and the Tennessee Rule of Evidence 404(b) issue in the petition for post-conviction relief. The post-conviction petition denied relief on the remaining issues. After a reviewing the record, we affirm the judgment of the post-conviction court.

Sevier County Court of Criminal Appeals 06/15/20
Charles R. Goodwin v. Morristown Driver's Services, Inc. et al.
E2019-01517-SC-R3-WC

A Georgia resident, employed by a Tennessee company, filed a workers’ compensation claim in Georgia for an injury he sustained in Tennessee. Later, the employee also filed a workers’ compensation claim in Tennessee for the same injury. The Georgia State Board of Workers’ Compensation dismissed the Georgia claim for lack of subject matter jurisdiction. The Tennessee Court of Workers’ Compensation Claims held that the employee’s claim was not barred based on the election of remedies doctrine. In a split decision, the Workers’ Compensation Appeals Board reversed, holding that the employee’s claim was barred because he had first pursued a claim for benefits in Georgia. We reverse and hold that the employee’s Tennessee claim is not barred because his Georgia claim had been dismissed for lack of subject matter jurisdiction, and thus the employee had no remedy to elect.

Workers Compensation Panel 06/15/20
In Re Jessica V., et al.
W2019-01700-COA-R3-PT

The trial court terminated a father’s parental rights to his children on the grounds of (1) abandonment by willful failure to visit, (2) abandonment by willful failure to support, (3) abandonment by engaging in conduct prior to incarceration that exhibits a wanton disregard for the children’s welfare, and (4) failure to manifest an ability and willingness to personally assume custody of or financial responsibility of the children. The trial court also found that termination of the father’s parental rights was in the best interest of the children. Finding clear and convincing evidence in support of the trial court’s determinations, we affirm.

Hardin County Court of Appeals 06/12/20
John E. Coolidge, Jr. v. Elizabeth M. Keene, Et Al.
E2019-01278-COA-R3-CV

This appeal concerns whether certain easements were abandoned. John E. Coolidge, Jr. (“Mr. Coolidge”) is a neighbor of Elizabeth M. Keene (“Ms. Keene”) and Christopher P. Keene, II (“Mr. Keene”) (“the Keenes,” collectively). Pursuant to recorded easements, the Keenes may use a driveway to access an old garage encroaching on Mr. Coolidge’s property. However, the garage was damaged by fire many years ago and never repaired or rebuilt by the Keenes’ predecessors. When the Keenes sought to repair or rebuild the garage, Mr. Coolidge sued them in the Chancery Court for Hamilton County (“the Trial Court”). Mr. Coolidge argued that both the driveway and encroachment easements had been abandoned, largely because the garage was in ruins for such a long time. A bench trial was held. The Trial Court found that, notwithstanding the passage of time, the easements had not been abandoned, and the Keenes could proceed with their plans. Mr. Coolidge appeals, and the Keenes raise their own issues as well. Discerning no reversible error, we affirm the judgment of the Trial Court in all respects.

Hamilton County Court of Appeals 06/12/20
Lataisha M. Jackson v. Charles Anthony Burrell, et al.
W2018-00057-SC-R11-CV

The question presented in this health care liability case is whether the plaintiff’s claim against a salon for negligent training, supervision, and retention of a massage therapist should be dismissed because the plaintiff did not file a certificate of good faith with her complaint under section 29-26-122 of the Tennessee Health Care Liability Act (“the Act”). Our answer depends on whether the common knowledge exception applies— that is, whether laypersons using their common knowledge and without expert testimony could decide whether the salon was negligent. If the common knowledge exception does not come into play and expert testimony is necessary, then the plaintiff needed to file a certificate of good faith with her complaint certifying that her negligence claim was supported by a competent expert witness and that there was a good faith basis for the claim. Here, the plaintiff alleged that a massage therapist working for the salon sexually assaulted her during a massage. In support of her claim of negligent training, supervision, and retention, the plaintiff presented evidence that before her assault, the salon had received complaints from two customers that the massage therapist had acted inappropriately and made them feel uncomfortable. The trial court granted summary judgment to the salon because the plaintiff had not filed a certificate of good faith. The Court of Appeals affirmed, ruling that the plaintiff had waived the common knowledge exception and that, in any event, expert testimony was necessary. We reverse and hold that 1) the plaintiff did not waive the common knowledge exception; and 2) the plaintiff’s claim against the salon for negligent training, supervision, and retention of the massage therapist was within the common knowledge of laypersons and did not require expert testimony about the standard of care in the massage industry. Thus, the plaintiff did not have to present expert proof to establish her negligence claim against the salon. It follows then that the plaintiff had no reason to file a certificate of good faith under section 29-26- 122, and her claim is not subject to dismissal for noncompliance with this section. The trial court’s award of summary judgment is vacated.

Shelby County Supreme Court 06/12/20
In Re Estate of Samuel Dattel
W2019-00800-COA-R3-CV

Decedent died in 2015 and his widow submitted his latest will for probate in March 2016. Children from a prior marriage filed a will contest in August 2016, alleging a will dating from 1984 constituted Decedent’s last will and testament and all later wills were the result of fraud and undue influence. The widow and her children challenged the will contest on various grounds, all of which the probate court rejected. The probate court entered an order directing the court clerk to certify the will submitted to probate in addition to three earlier original wills and a partial codicil to the circuit court for a trial to determine which document(s), if any, constituted Decedent’s last will and testament. We affirm the decision of the probate court.

Shelby County Court of Appeals 06/12/20
Joshua Keller v. Janice Casteel et al.
E2017-01020-SC-R11-CV

We granted permission to appeal in this case to address when an employee handbook may create a property interest entitled to due process protection. After the petitioner municipal firefighter pled guilty to a criminal charge, his employment was terminated. The firefighter filed a complaint for judicial review of the termination, asserting a due process claim based on the municipality’s personnel manual. The trial court and the Court of Appeals both held that the personnel manual gave the firefighter a property interest entitled to due process protection. We reverse that holding. In Tennessee, employment is presumed to be at-will. Employers, including governmental employers, may adopt policies and procedures to promote efficiencies and fair, consistent treatment of employees, and may put those policies and procedures in employee manuals or handbooks. In the absence of specific language showing the employer’s intent to be contractually bound, such policies and procedures do not change employees’ at-will status and do not create a constitutionally protectable property interest. In this case, the municipality’s personnel manual included an explicit statement that the municipality did not intend the procedures to be binding or constitute any type of contract. Such disclaimers preclude any finding that the employer intended to be bound by the terms of the employee handbook. Accordingly, we decline to hold that the employee handbook converted the employee’s at-will employment into a property interest entitled to due process protection.

Bradley County Supreme Court 06/12/20
Jamar Scott v. State of Tennessee
M2019-00014-CCA-R3-ECN

The Petitioner, Jamar Scott, appeals the denial of his petition for writ of error coram nobis, alleging that he has newly discovered evidence of innocence. Following our review, we affirm the judgment of the error coram nobis court denying the petition.

Davidson County Court of Criminal Appeals 06/11/20