Tennessee Administrative Office of the Courts

Appellate Court Opinions

Format: 03/21/2019
Format: 03/21/2019
Tina E. Hayes v. Costco and Liberty Mutual Insurance Company
W2017-02130-SC-R3-WC

Tina E. Hayes (“Employee”) alleged that she sustained a compensable injury to her left knee on April 8, 2015, in the course of her work as a stocker for Costco (“Employer”). She alleged that this injury required her to undergo a left knee replacement surgery. The Court of Workers’ Compensation Claims held that Employee failed to establish by a preponderance of the evidence a compensable injury or aggravation arising primarily out of and in the course and scope of her employment with Employer. Employee has appealed. The appeal has been referred to the Special Workers’ Compensation Appeals Panel for a hearing and a report of findings of fact and conclusions of law pursuant to Tennessee Supreme Court Rule 51. We affirm the judgment.

Workers Compensation Panel 02/12/19
State of Tennessee v. Daniel Dewayne Kincaid
E2018-01012-CCA-R3-CD

The Defendant, Daniel Dewayne Kincaid, appeals as of right from the Blount County Circuit Court’s revocation of his probationary sentence and order of one hundred and eighty days of split confinement for his convictions for DUI. The Defendant contends that the trial court abused its discretion by ordering him to serve one hundred and eighty days of split confinement before being released on supervised probation. Following our review, we affirm the judgments of the trial court.

Blount County Court of Criminal Appeals 02/11/19
State of Tennessee v. Gregory Gill
W2018-00331-CCA-R3-CD

After a jury trial, Gregory Gill, Defendant, was convicted of two counts of possession of cocaine with intent to sell or deliver, two counts of possession of marijuana with intent to sell or deliver, four counts of unlawful possession of a firearm with the intent to go armed during the commission of or attempt to commit a dangerous felony, one count of unlawful possession of a firearm after being convicted of a felony involving the attempted use of force, violence, or a deadly weapon, one count of possession of drug paraphernalia, and one count of evading arrest. The trial court sentenced Defendant to a total effective sentence of thirty-eight years in the Tennessee Department of Correction. On appeal, Defendant asserts that: (1) the trial court erred in denying his motion to suppress; (2) the evidence was insufficient for a rational trier of fact to have found him guilty beyond a reasonable doubt; (3) the trial court erred in allowing the State to crossexamine a defense witness about his pending criminal charges; and (4) the trial court imposed an excessive sentence. After a thorough review of the facts and applicable case law, we affirm.

Madison County Court of Criminal Appeals 02/11/19
State of Tennessee v. Jason White
W2018-00329-CCA-R3-CD

Jason White, Defendant, was convicted of one count of conspiracy to possess methamphetamine with the intent to sell within a drug-free zone and one count of conspiracy to possess methamphetamine with the intent to deliver within a drug-free zone. Co-defendant Kristina Cole and Co-defendant Montez Mullins were also convicted of one count of conspiracy to possess methamphetamine with the intent to sell within a drug-free zone and one count of conspiracy to possess methamphetamine with the intent to deliver within a drug-free zone in the same trial. See State v. Kristina Cole and Montez Mullins, No. W2017-01980-CCA-R3-CD, 2018 WL 5810011, at *1 (Tenn. Crim. App. Nov. 5, 2018), perm. app. filed. The trial court sentenced Defendant to sixty years as a career offender with release after service of 100% of the sentence. On appeal, Defendant asserts that: (1) the trial court erred in allowing Defendant’s trial counsel to represent Defendant despite a conflict of interest; (2) the State constructively amended the indictment by obtaining a superseding indictment; (3) the trial court erred in admitting: testimony from Andrew Brown; Co-defendant Montez Mullins’ confession; text messages that Detective Mark Gaia retrieved from Co-defendant Cole’s three cell phones; and marijuana confiscated from Mr. White’s vehicle; (4) the trial court erred in admitting testimony from Detective Gaia without instructing the jury about witness credibility; (5) the State’s introduction of Co-defendant Mullins’ confession violated Bruton v. U.S., 391 U.S. 123 (1968); (6) the trial court erred in denying Defendant’s motion to sever his case from Co-defendants Cole and Mullins; (7) the evidence was insufficient for a rational juror to have found Defendant guilty; and (8) the State committed prosecutorial misconduct during closing arguments. After a thorough review of the facts and applicable case law, we affirm.

Shelby County Court of Criminal Appeals 02/11/19
State of Tennessee v. Creed Gettys Welch
M2016-01335-CCA-R3-CD

Defendant, Creed Gettys Welch, was convicted after a jury trial of one count of aggravated sexual battery of a victim less than thirteen years of age and was sentenced to serve ten years at 100%. On appeal, Defendant challenges the sufficiency of the evidence supporting the conviction and the trial court’s alleged failure to fulfill its role as the thirteenth juror. We affirm the judgment of the trial court.

Lawrence County Court of Criminal Appeals 02/08/19
State of Tennessee v. Thomas Huey Liles, Jr.
E2018-00384-CCA-R3-CD

The defendant, Thomas Huey Liles, Jr., appeals his Sevier County Circuit Court jury conviction of second offense driving under the influence (“DUI”), claiming that the statute imposing a blood alcohol or drug concentration test fee violates principles of due process. Because our supreme court has specifically concluded that the statute in question does not violate due process principles, we affirm.

Sevier County Court of Criminal Appeals 02/08/19
IN RE AUTUMN L. ET AL.
M2018-01184-COA-R3-PT

This is a termination of parental rights case involving two minor children. Appellants, who have custody of the children, appeal the trial court’s denial of their petition to terminate Mother/Appellee’s parental rights. The trial court found that Appellants met their burden to show the grounds of persistence of the conditions that led to the children’s removal from Appellee’s custody and abandonment by wanton disregard by an incarcerated parent. However, the trial court found that termination of Appellee’s parental rights was not in the children’s best interests. We affirm the trial court’s findings as to the grounds for termination but reverse its finding as to best interests. We remand the case for entry of an order terminating Appellee’s parental rights to the children.

Lewis County Court of Appeals 02/08/19
In Re Serenity W.
E2018-00460-COA-R3-PT

A mother appeals the termination of her parental rights to her child. After the mother tested positive for drugs at a court hearing, the trial court awarded temporary legal and physical custody of the child to the Tennessee Department of Children’s Services. Over two years later, the juvenile court found by clear and convincing evidence three statutory grounds for termination: abandonment by failure to provide a suitable home, substantial noncompliance with the permanency plans, and failure to manifest an ability and willingness to assume custody or financial responsibility for the child. The court also found by clear and convincing evidence that termination of the mother’s parental rights was in the child’s best interest. We conclude that the evidence was less than clear and convincing as to two of the statutory grounds but the record contains clear and convincing evidence to support one ground for termination. But because we also conclude that the evidence was less than clear and convincing that termination was in the child’s best interest, we reverse the termination of the mother’s parental rights.

Cocke County Court of Appeals 02/08/19
In Re Serenity W. - concurring in part and dissenting in part
E2018-00460-COA-R3-PT

The majority holds, in its own words, that the evidence was less than clear and convincing as to two of the statutory grounds but the record contains clear and convincing evidence to support one ground for termination. But because we also conclude that the evidence was less than clear and convincing that termination was in the child’s best interest, we reverse the termination of the mother’s parental rights.

Cocke County Court of Appeals 02/08/19
Deja Vu of Nashville, Inc. v. Brasfield & Gorrie, LLC et al.
M2018-00610-COA-R3-CV

After street closures allegedly affected its business, Appellant filed suit against the construction company. The company answered the complaint denying that any street closures occurred without the permission of Appellee Metropolitan Government of Nashville. More than a year after the construct company filed its answer, Appellant filed an amended complaint against Appellee, averring nuisance, inverse condemnation, and federal taking. Appellee moved for dismissal under Tennessee Rule of Civil Procedure 12.02(6) motion, arguing that the one-year statute of limitations barred Appellant’s claims. The trial court found that Appellant was on notice of Appellant’s involvement in the road closures based on the construction company’s answer and granted the motion to dismiss. We affirm.

Davidson County Court of Appeals 02/08/19
State of Tennessee v. Nikilo Conley
W2018-00402-CCA-R3-CD

A Shelby County jury found the Defendant guilty of especially aggravated robbery, and the trial court sentenced the Defendant to serve twenty years in the Tennessee Department of Correction. On appeal, the Defendant asserts that the evidence is insufficient to sustain his conviction. After review, we affirm the trial court’s judgment.

Shelby County Court of Criminal Appeals 02/08/19
State of Tennessee v. Jacquez Russell
W2017-02184-CCA-R3-CD

The Defendant, Jacquez Russell, was found guilty by a Shelby County Criminal Court jury of attempt to commit first degree premeditated murder, a Class A felony, and employing a firearm during the commission of a dangerous felony, a Class C felony. See T.C.A. §§ 39-13-202 (2018) (first degree murder), 39-12-101 (2018) (attempt), 39-17-1324 (2018) (employment). The trial court sentenced the Defendant as a Range I, standard offender to consecutive terms of sixteen years for attempted first degree murder and six years for the firearm conviction, for an effective twenty-two-year sentence. On appeal, the Defendant contends that (1) the evidence is insufficient to support his convictions and (2) the trial court erred by limiting his closing argument. We affirm the judgments of the trial court.

Shelby County Court of Criminal Appeals 02/08/19
IN RE Melinda N.
E2017-01738-COA-R3-PT

Candy D. (“Mother”) appeals the August 11, 2017 order of the Circuit Court for Bradley County (“the Trial Court”) terminating her parental rights to the minor child Melinda N. (“the Child”). Mother raises issues regarding whether a petition for adoption of the Child is defective on its face, whether the Trial Court erred in finding clear and convincing evidence that grounds existed to terminate her parental rights for abandonment by willful failure to support pursuant to Tenn. Code Ann. § 36-1-113(g)(1), whether the Trial Court erred in finding clear and convincing evidence that grounds existed to terminate her parental rights for abandonment by willful failure to visit pursuant to Tenn. Code Ann. § 36-1-113(g)(1), and whether the Trial Court erred in finding that it was in the Child’s best interests for Mother’s parental rights to be terminated. We find and hold that the Trial Court did not err in finding that clear and convincing evidence was shown of grounds to terminate Mother’s parental rights for abandonment by willful failure to support and for abandoment by willful failure to visit and that it was proven that it was in the Child’s best interests for Mother’s parental rights to be terminated. We, therefore, affirm the Trial Court’s August 11, 2017 order. As Mother’s parental rights properly have been terminated, Mother lacks standing to raise issues regarding alleged deficiencies in the petition for adoption.

Bradley County Court of Criminal Appeals 02/07/19
Corey Gilbert v. State of Tennessee
M2017-02071-CCA-R3-PC

After his convictions for felony murder and aggravated robbery were upheld on direct appeal, Petitioner, Corey Gilbert, sought post-conviction relief. In the petition for post-conviction relief, Petitioner alleged ineffective assistance of trial counsel and appellate counsel as well as prosecutorial misconduct. After a hearing, the post-conviction court denied relief. We affirm the judgment of the post-conviction court.

Montgomery County Court of Criminal Appeals 02/07/19
State of Tennessee v. David Lynn Zeigler
M2017-01091-CCA-R3-CD

The Defendant-Appellant, David Lynn Zeigler, appeals from a Maury County jury conviction of rape by “knowing or having reason to know [the victim] was mentally defective, mentally incapacitated or physically helpless.” Tenn. Code Ann. § 39-13-503(a)(3). In this appeal as of right, the Defendant presents the following issues for our review: (1) whether the trial court erred in prohibiting trial counsel’s cross-examination of an expert witness about his suspension from the practice of forensic psychology for unprofessional conduct; (2) whether the trial court’s decision to limit cross-examination of the expert witness effectively interfered with trial counsel’s right to present a defense; and (3) whether the trial court imposed an excessive sentence. For the reasons that follow, we reverse the Defendant’s conviction and remand for a new trial.

Maury County Court of Criminal Appeals 02/07/19
State of Tennessee v. David Lynn Zeigler - dissenting
M2017-01091-CCA-R3-CD

I respectfully dissent. I cannot find the trial court abused its discretion by limiting the cross-examination of the State’s expert witness.

Maury County Court of Criminal Appeals 02/07/19
Rafia N. Khan, Individually, And In Her Capacity As Trustee Of The Rafia N. Khan Irrevocable Trust v. Regions Bank
E2018-01173-COA-R3-CV

This is the fourth appeal arising from a disputed arbitration award in favor of Regions Bank (the Bank) “against Rafia N. Khan, individually, and as trustee” of the Rafia N. Khan Irrevocable Trust (the Trust). Pursuant to this Court’s mandate in the first appeal, the trial court entered an order confirming the arbitration award “as to the Rafia N. Khan Irrevocable Trust and to Rafia N. Khan as Trustee of the Rafia N. Khan Irrevocable Trust.” Later, the trial court entered an order granting the Bank $72,156 in attorney’s fees and $2,094.05 in costs. Of that amount, the court assessed $45,928.92 against the Trust and assessed $28,321.13 against Ms. Khan individually. Ms. Khan’s notice of appeal states that she is appealing (1) the trial court’s order confirming the arbitration award; (2) the court’s order granting the Bank attorney’s fees and costs; and (3) the court’s order denying Ms. Khan’s motion to alter or amend. We affirm the trial court’s order confirming the arbitration award pursuant to the law of the case doctrine. We modify the court’s order awarding attorney’s fees. The award shall include attorney’s fees incurred by the Bank in the trial court and on direct appeal but not attorney’s fees incurred by the Bank in federal bankruptcy court proceedings.

Knox County Court of Appeals 02/06/19
Preston Jamar Shepherd v. State of Tennessee
M2018-00945-CCA-R3-PC

Preston Jamar Shepherd, Petitioner, filed a pro se petition for post-conviction relief using the form provided in Appendix A of Rule 28 of the Rules of the Supreme Court. Petitioner checked seven of the twelve “Grounds of Petition” listed in the form, including ground (2), that his convictions were “based on use of coerced confession” and (9), that he was denied effective assistance of counsel. After ground (2), Petitioner wrote “(due to mental capacity),” and after ground (9), Petitioner wrote “([f]ailed to go over facts/evidence with [Petitioner], and properly inform).” The post-conviction court found that the petition failed to state a factual basis for relief and summarily dismissed the petition for failing to comply with Tennessee Code Annotated section 40-30-106(d). We determine that the petition stated a colorable claim, reverse the summary dismissal, and remand for entry of a preliminary order pursuant to Tennessee Code Annotated section 40-30-107(b).

Rutherford County Court of Criminal Appeals 02/06/19
In Re Devin C.
M2018-01918-COA-R3-JV

This is an appeal from a decision of the Juvenile Court for Montgomery County setting a father’s child support obligation. Because the father did not file his notice of appeal within thirty days after entry of the final judgment as required by Tenn. R. App. P. 4(a), we dismiss the appeal.

Montgomery County Juvenile & Family Courts 02/06/19
Jackson Miller v. Phyllis Frevik
M2018-01077-COA-R3-CV

This case originated when the plaintiff filed an action against the defendant, alleging that the plaintiff was entitled to the proceeds from a life insurance policy. The trial court found in favor of the plaintiff. The defendant did not appeal that order but subsequently filed a motion for relief from the judgment pursuant to Tennessee Rule of Civil Procedure 60. The trial court denied the defendant’s motion, and the defendant appealed. Having determined that the defendant has failed to comply with Tennessee Rule of Appellate Procedure 27 and Tennessee Court of Appeals Rule 6, we dismiss this appeal.

Williamson County Court of Appeals 02/06/19
State of Tennessee v. Toran Harper
W2017-00875-CCA-R3-CD

A Shelby County Criminal Court Jury found the Appellant, Toran Harper, guilty of first degree premeditated murder, felony murder, attempted especially aggravated robbery, aggravated robbery, and being a felon in possession of a weapon. The trial court imposed a total effective sentence of life plus seventy-five years. On appeal, the Appellant challenges the sufficiency of the evidence sustaining his convictions, alleging that inconsistencies in the witnesses’ testimony raise reasonable doubt of his guilt. Upon review, we affirm the judgments of the trial court.

Shelby County Court of Criminal Appeals 02/06/19
State of Tennessee v. James Hall
M2018-00096-CCA-R3-CD

Defendant, James Hall, appeals the trial court’s denial of his motion to modify his sentence pursuant to Tennessee Rule of Criminal Procedure 35. Defendant argues that the trial court abused its discretion when it failed to consider Defendant’s rehabilitation efforts. After a review of the record, we determine that the trial court did not abuse its discretion. However, the judgment for case 2015-C-1974 contains an error that warrants remand for correction.

Davidson County Court of Criminal Appeals 02/05/19
Steven Anderson v. Russell Washburn, Warden
M2018-00661-CCA-R3-HC

The petitioner, Steven Anderson, appeals from the denial of his petition for writ of habeas corpus, which petition challenged his 1994 convictions of aggravated robbery, especially aggravated robbery, and second degree murder. Because the petitioner has stated entitlement to habeas corpus relief in the form of the application of pretrial jail credit, we reverse and vacate the order of the habeas corpus court summarily dismissing the petition. The cause is remanded to the habeas corpus court so that that court may transfer the case to the trial court for the entry of an amended judgment reflecting the appropriate award of pretrial jail credit.

Trousdale County Court of Criminal Appeals 02/05/19
Steven Anderson v. Russell Washburn, Warden - dissenting
M2018-00661-CCA-R3-HC

I respectfully disagree with the conclusions and opinions of the majority. Therefore, I must dissent from the majority’s opinion.

Trousdale County Court of Criminal Appeals 02/05/19
State of Tennessee v. Jenelle Leigh Potter
E2015-02261-CCA-R3-CD

A Washington County jury convicted the Defendant, Jenelle Leigh Potter, of two counts of first degree premeditated murder and one count of conspiracy to commit first degree murder. The trial court merged the conspiracy conviction and ordered concurrent life sentences for both murder convictions. On appeal, the Defendant asserts that: (1) the trial court erred when it failed to grant her request for a change of venire; (2) the evidence is insufficient to support her convictions for premeditated first degree murder and conspiracy to commit premeditated first degree murder; (3) the criminal responsibility statute, Tennessee Code Annotated, section, 39-11-402, is unconstitutionally vague; and (4) the trial court erred when it failed to enjoin the prosecutor from publishing his book about this case until after the final adjudication of this case. Following our review, we affirm the convictions for first degree premeditated murder, but hold that merger of the conspiracy conviction was error. We reinstate the Defendant’s conviction for conspiracy to commit first degree murder and remand to the trial court for sentencing on that count.

Washington County Court of Criminal Appeals 02/05/19