COURT OF CRIMINAL APPEALS OPINIONS

State of Tennessee v. Tyler Hemmingway
W2022-01248-CCA-R3-CD
Authoring Judge: Judge John W. Campbell, Sr.
Trial Court Judge: Judge Jennifer Johnson Mitchell

The Defendant, Tyler Hemmingway, was convicted by a Shelby County Criminal Court
jury of aggravated sexual battery and sentenced by the trial court as a Range I, standard
offender to eight years at 100 percent in the Tennessee Department of Correction. On
appeal, the Defendant challenges the sufficiency of the evidence and argues that the trial
court abused its discretion by allowing the State to introduce a photograph of the
Defendant’s bedroom that showed a pornographic poster on the wall. Based on our review,
we affirm the judgment of the trial court.

State of Tennessee v. David Eugene Dunlap
E2022-00593-CCA-R3-CD
Authoring Judge: Judge James Curwood Witt, Jr.
Trial Court Judge: Judge Steven Wayne Sword

The defendant, David Eugene Dunlap, Alias, appeals his Knox County Criminal Court jury
convictions of possession with intent to sell or deliver .5 grams or more of
methamphetamine in a drug-free zone, possession of a firearm after having been convicted
of a crime of violence, possession of a firearm with intent to go armed during the
commission of a dangerous felony, simple possession of marijuana, and possession of drug
paraphernalia, arguing that the trial court erred by denying his motion to suppress evidence,
that the evidence was insufficient to support his conviction for possession with intent to
sell or deliver, and that the trial court erred by declining to sentence him under the amended
Drug-Free Zone statute. Discerning no error, we affirm.

State of Tennessee v. Charles Jonathan Murphy
W2022-01682-CCA-R3-CD
Authoring Judge: Judge John W. Campbell, Sr.
Trial Court Judge: Judge Kyle C. Atkins

The Defendant, Charles Jonathan Murphy, was convicted by a Henderson County Circuit Court jury of two counts of rape, a Class B felony, and was sentenced by the trial court as a Range I, standard offender to ten years for each conviction, with the sentences to be served consecutively, for a total effective sentence of twenty years at 100 % in the Department of Correction. On appeal, the Defendant argues that the evidence is insufficient to sustain the convictions and that the trial court erred in sentencing him by misapplying an enhancement factor and ordering consecutive sentences. Based on our review, we affirm the judgments of the trial court.

Mario Donte Keene v. State of Tennessee
E2022-01410-CCA-R3-PC
Authoring Judge: Judge Tom Greenholtz
Trial Court Judge: Judge Alex E. Pearson

Following his convictions for felony murder, especially aggravated robbery, and especially
aggravated kidnapping, the Petitioner, Mario Donte Keene, filed a petition for postconviction
relief. The Petitioner alleged that his confession was unconstitutionally
admitted into evidence during his trial. He also asserted that he was denied the effective
assistance of counsel when his trial counsel failed to cross-examine a witness and failed to
present an expert to testify that he did not have the physical ability to commit the crimes.
After a hearing, the post-conviction court denied the petition. On appeal, we respectfully
affirm the judgment of the post-conviction court.

State of Tennessee v. Desmond Anderson
W2022-01758-CCA-R3-CD
Authoring Judge: Judge Tom Greenholtz
Trial Court Judge: Judge Donald H. Allen

The Defendant, Desmond Anderson, was convicted of three offenses in 2013, and the trial
court sentenced the Defendant to serve an effective sentence of twenty years consisting of
concurrent sentences of varying lengths. The trial court awarded pretrial jail credit on
Count 1 but did not do so in Counts 2 or 3. The Defendant later filed a motion pursuant to
Tennessee Rule of Criminal Procedure 36 seeking to have appropriate pretrial jail credit
awarded on all concurrent sentences. The trial court summarily denied the motion,
concluding that the request was an administrative matter for the Tennessee Department of
Correction. The Defendant appealed, and the State concedes error. We agree. We
respectfully vacate the trial court’s order and remand the case for entry of corrected
judgments in Counts 2 and 3 to award appropriate pretrial jail credit on all concurrent
sentences.

State of Tennessee v. William Paul Watson
E2022-01321-CCA-R3-CD
Authoring Judge: Judge John W. Campbell, Sr.
Trial Court Judge: Judge G. Scott Green

The Defendant, William Paul Watson, pled guilty to possessing more than one-half gram
of cocaine with intent to sell within a drug-free zone and received a fifteen-year sentence
to be served at one hundred percent. More than ten years later, he filed a motion to be
resentenced pursuant to Tennessee Code Annotated section 39-17-432(h). The trial court
held a hearing, granted the Defendant’s motion, and resentenced him to fifteen years with
eight years to be served at one hundred percent and the remainder to be served at a thirtyfive
percent release eligibility. On appeal, the Defendant contends that the trial court
imposed an illegal sentence. The State argues that we should dismiss the appeal for lack
of jurisdiction under Tennessee Rule of Appellate Procedure 3(b) and that, in any event,
the Defendant’s sentence is not illegal. Based upon the oral arguments, the record, and the
parties’ briefs, we agree with the Defendant, reverse and vacate the judgment of the trial
court, and remand the case for further proceedings consistent with this opinion.

State of Tennessee v. Raffell M. Griffin, Jr.
E2022-00659-CCA-R3-CD
Authoring Judge: Judge Robert H. Montgomery, Jr.
Trial Court Judge: Judge Kyle A. Hixson

The Defendant, Raffell M. Griffin, Jr., was convicted by a jury of conspiracy to possess
with the intent to sell or deliver more than twenty-six grams of cocaine in a drug-free
zone, a Class B felony, and first degree premeditated murder. See T.C.A. §§ 39-17-
417(c) (2018) (subsequently amended) (possession of a controlled substance), 39-12-103
(2018) (conspiracy), 39-13-202(a)(2) (2018) (subsequently amended) (first degree
murder). The jury found that the Defendant committed a criminal gang offense,
enhancing by one level the felony classification of the convictions. See id. § 40-35-121
(2019) (subsequently amended) (gang enhancement). The trial court imposed a twentyfive
year sentence for the conspiracy conviction, to be served consecutively with a life
sentence for the murder conviction. On appeal, the Defendant contends that: (1) the
evidence is insufficient to support the Defendant’s conviction for first degree murder; (2)
the trial court erred in admitting hearsay evidence; (3) the trial court erred by allowing
Investigator Philip Jinks to testify as an expert in gang investigations; (4) the trial court
failed to conduct an adequate investigation of alleged juror misconduct; and (5) the trial
court failed to apply mitigating factors in sentencing. We affirm the judgments of the
trial court.

State of Tennessee v. Roger Scott Herbison
M2022-01359-CCA-R3-CD
Authoring Judge: Presiding Judge Camille R. McMullen
Trial Court Judge: Judge David D. Wolfe

The Defendant, Roger Scott Herbison, entered a guilty plea to one count of attempted
sexual exploitation of a minor and one count of attempted aggravated sexual exploitation
of a minor in exchange for an effective four-year sentence, suspended to probation, and the
Defendant’s placement on the sex offender registry. As a part of his plea, the Defendant
sought to reserve a certified question of law, concerning whether probable cause existed
for issuance of a search warrant, which was the subject of an unsuccessful suppression
motion. Because the Defendant did not properly reserve a certified issue for review, we
are without jurisdiction to review the merits of the Defendant’s claim, and we dismiss his
appeal.

State of Tennessee v. Antonio Donte Jenkins, a.k.a. Antonio Donte Gordon Jenkins
M2022-00693-CCA-R3-CD
Authoring Judge: Judge Tom Greenholtz
Trial Court Judge: Judge Angelita Blackshear Dalton

A Davidson County jury convicted the Defendant, Antonio Donte Jenkins, a.k.a. Antonio Donte Gordon Jenkins, of second degree murder and felony reckless endangerment. The trial court sentenced the Defendant to serve an effective sentence of twenty-seven years. On appeal, the Defendant argues that the evidence is insufficient to sustain his conviction for second degree murder. He also asserts that the trial court erred by (1) instructing the jury on criminal responsibility; (2) failing to declare a mistrial after a State’s witness testified that the Defendant had an outstanding warrant; (3) allowing portions of a witness’s testimony from the juvenile transfer hearing to be read into evidence; (4) allowing evidence that had not been presented during trial into the jury room during deliberations; and (5) imposing an excessive sentence. We respectfully conclude that the jury should not have been instructed on criminal responsibility and that the error was not harmless. For this reason, we vacate the Defendant’s conviction for second degree murder and remand for a new trial. Finally, although we also affirm the Defendant’s conviction and sentence for reckless endangerment, we remand for entry of an amended judgment reflecting that this sentence is not currently aligned consecutively to any other sentence.

Rodney Earl Jones v. State of Tennessee
M2022-01315-CCA-R3-PC
Authoring Judge: Judge J. Ross Dyer
Trial Court Judge: Judge Angelita Blackshear Dalton

The petitioner, Rodney Earl Jones, appeals the denial of his petition for post-conviction relief, arguing the post-conviction court erred in finding he received the effective assistance of counsel at trial. Following our review, we affirm the denial of the petition.

State of Tennessee v. Roger Jay Hollowell
W2022-01434-CCA-R3-CD
Authoring Judge: Judge James Curwood Witt, Jr.
Trial Court Judge: Judge Bruce Irwin Griffey

The defendant, Roger Jay Hollowell, appeals the Carroll County Circuit Court’s order
revoking his community corrections sentence and ordering him to serve in confinement the
balance of his sentence for his guilty-pleaded conviction of possession of .5 grams or more
of methamphetamine with intent to deliver. Discerning no error, we affirm.

McArthur Bobo v. State of Tennessee
W2022-01554-CCA-R3-PC
Authoring Judge: Judge Timothy L. Easter
Trial Court Judge: Judge Chris Craft

Petitioner, McArthur Bobo, appeals the summary dismissal of his pro se petition for postconviction
relief. Discerning no error, we affirm.

State of Tennessee v. Johnathan Issac Gradell Allen
M2022-01400-CCA-R3-CD
Authoring Judge: Judge Robert L. Holloway, Jr.
Trial Court Judge: Judge Forest A. Durard, Jr.

Johnathan Issac Gradell Allen, Defendant, pleaded guilty to arson and was sentenced to four-and-one-half years’ incarceration. Defendant claims that the trial court erred by not sentencing him to an alternative sentence and by imposing an excessive sentence. Defendant also claims that the State’s negligent handling of certain sentencing documents caused an unreasonable delay in his transfer from the jail to prison thereby delaying the date of his parole hearing. After a thorough review of the record, applicable law, and the briefs, we affirm.

State of Tennessee v. Justin L. Kiser
E2023-00093-CCA-R3-PC
Authoring Judge: Judge James Curwood Witt
Trial Court Judge: Judge Zachary R. Walden

The petitioner, Justin L. Kiser, appeals the denial of his petition for post-conviction relief,
which petition challenged his five convictions of especially aggravated kidnapping,
alleging that he was deprived of the effective assistance of counsel. Discerning no error,
we affirm the post-conviction court’s denial of post-conviction relief.

State of Tennessee v. Deshaun Tate
W2022-01671-CCA-R3-CD
Authoring Judge: Judge Timothy L. Easter
Trial Court Judge: Judge James Jones, Jr.

A Shelby County jury convicted Defendant, Deshaun “Bushwick” Tate, of first degree
premeditated murder. On appeal, Defendant argues that the trial court erred in denying his
motion for judgment of acquittal, his motion for new trial, and his motion to suppress
witness identification. After review, we affirm the judgment of the trial court.

Kellum Williams v. State of Tennessee
M2022-01496-CCA-R3-PC
Authoring Judge: Judge Robert L. Holloway, Jr.
Trial Court Judge: Judge Robert Bateman

Petitioner, Kellum Williams, appeals as of right from the Montgomery County Circuit Court’s denial of his petition for post-conviction relief, wherein he challenged his convictions for first degree premeditated murder, first degree felony murder, and especially aggravated kidnapping and resulting sentence of life without the possibility of parole plus twenty-five years. Petitioner contends that he was denied the effective assistance of counsel based upon trial counsel’s failure to: (1) sufficiently emphasize at trial the theory that the victim died in Montgomery County rather than in Robertson County, as testified to by the State’s experts; (2) seek an independent expert “to test samples from the crime scene”; (3) raise as a defense that venue of the trial should have been in Robertson County instead of Montgomery County; and (4) more extensively question witnesses to demonstrate Petitioner’s “non-participation in the events leading to [the victim’s] death.” Petitioner further asserts that he is entitled to relief based upon cumulative error. Following a thorough review, we affirm the judgment of the post-conviction court.

State of Tennessee v. Isaiah Harris
E2023-00078-CCA-R3-CD
Authoring Judge: Judge Jill Bartee Ayers
Trial Court Judge: Judge G. Scott Green

Defendant, Isaiah Harris, appeals the trial court’s order revoking his probationary sentence
for four counts of attempted second-degree murder and two counts of felony reckless
endangerment and ordering him to serve the balance of his sentence in confinement.
Following our de novo review of the entire record and the briefs of the parties, we affirm
the judgment of the trial court.

Clint Earl Sims v. State of Tennessee
W2022-01597-CCA-R3-PC
Authoring Judge: Judge Matthew J. Wilson
Trial Court Judge: Judge Kyle C. Atkins

Petitioner, Clint Earl Sims, appeals from the Madison County Circuit Court’s order denying him post-conviction relief. On appeal, Petitioner argues he received ineffective assistance of counsel when he pleaded guilty to two counts of aggravated assault, three counts of domestic assault, three counts of vandalism less than $1,000, one count of false imprisonment, and one count of violating an order of protection. Petitioner also argues counsel’s ineffective assistance rendered his guilty plea unknowing and involuntary. Following our review of the record, the parties’ briefs, and the applicable law, we conclude Petitioner’s appeal is untimely, the interest of justice does not favor waiver of the untimely notice, and therefore, this appeal is dismissed.

State of Tennessee v. Riki Kale Moss
E2022-01227-CCA-R3-CD
Authoring Judge: Judge Robert W. Wedemeyer
Trial Court Judge: Judge Don W. Poole

In 2020, the Defendant, Riki Kale Moss, was indicted for violation of the implied consent law, driving under the influence (“DUI”) by impairment, and DUI, per se. The Defendant filed a pretrial motion to suppress the evidence resulting from the traffic stop of his vehicle. The trial court granted the Defendant’s motion, and the State filed a motion to reconsider on the grounds that law enforcement had probable cause to stop the Defendant’s vehicle. The trial court issued a revised order denying the motion to suppress, and a jury convicted the Defendant of DUI by impairment and DUI per se. The Defendant appeals the denial of his motion to suppress and also contends that the evidence was insufficient to support his convictions. After review, we affirm the trial court’s judgments.

State of Tennessee v. Christopher David Pace
W2022-01092-CCA-R3-CD
Authoring Judge: Judge Timothy L. Easter
Trial Court Judge: Judge Kyle C. Atkins

Defendant, Christopher David Pace, entered a partially open plea in which the length of his
sentence was agreed upon. The trial court would determine the manner of service at a
separate sentencing hearing. On appeal, Defendant argues that the trial court erred because
it relied only upon a “Specific Data Report” in sentencing Defendant. Alternatively,
Defendant argues that the trial court abused its discretion in denying Defendant’s request
for alternative sentencing. The State concedes that it was reversible error for the trial court
to sentence Defendant without a presentence report. We find that the trial court erred in
failing to consider the validated risk and needs assessment as required by Tennessee Code
Annotated section 40-35-210(b)(8). However, we conclude that the issue is waived. We
further conclude that the trial court did not abuse its discretion in denying Defendant’s
request for alternative sentencing. We accordingly affirm the judgment of the trial court.

State of Tennessee v. Jessie Lee Short
W2022-01608-CCA-R3-CD
Authoring Judge: Judge Robert H. Montgomery, Jr.
Trial Court Judge: Judge J. Brent Bradberry

The Defendant, Jessie Lee Short, was convicted by a Hardin County Circuit Court jury of
two counts of false imprisonment, a Class A misdemeanor, and three counts of assault, a
Class A misdemeanor. See T.C.A. §§ 39-13-302(a) (2018) (subsequently amended) (false
imprisonment); 39-13-101(a)(2) (2018) (assault). The trial court imposed concurrent
sentences of eleven months, twenty-nine days in confinement at 75% service. On appeal,
the Defendant contends that he was deprived of his right to equal protection under the law
when the State exercised a peremptory challenge against a black prospective juror without
articulating a valid race-neutral reason. We affirm the judgments of the trial court.

Mark Anthony Clemmons v. State of Tennessee
M2022-00560-CCA-R3-PC
Authoring Judge: Judge Robert L. Holloway, Jr
Trial Court Judge: Judge Brody N. Kane

Petitioner, Mark Anthony Clemmons, appeals as of right from the Wilson County Criminal
Court’s denial of his petition for post-conviction relief, wherein he challenged his guiltypleaded
convictions for possession with intent to sell not less than one-half ounce nor more
than ten pounds of marijuana; possession with intent to sell a Schedule III controlled
substance (dihydrocodeinone); and two counts of sale of not less than one-half ounce nor
more than ten pounds of marijuana, for which the trial court imposed an effective twentyseven-
year sentence. On appeal, Petitioner asserts that he received ineffective assistance
of counsel based upon trial counsel’s failure to explain the consequences of entering an
open plea. Following our review, we affirm.

State of Tennessee v. Pervis Tyrone Payne
W2022-00210-CCA-R3-CD
Authoring Judge: Judge Robert H. Montgomery, Jr.
Trial Court Judge: Judge Paula L. Skahan

In this case of first impression, the State appeals the trial court’s sentencing hearing order
that the Defendant’s two life sentences be served concurrently after he was determined to
be ineligible for the death penalty due to intellectual disability pursuant to Tennessee Code
Annotated section 39-13-203(g) (Supp. 2021) (subsequently amended). The State argues
that the consecutive alignment of the Defendant’s original sentences remained final and
that the trial court lacked jurisdiction to consider manner of service. The Defendant
responds that the trial court had jurisdiction to sentence him, including determining the
manner of service of his sentences, and did not abuse its discretion in imposing concurrent
life sentences. After considering the arguments of the parties, the rules of statutory
construction, and other applicable legal authority, we conclude that the trial court properly
acted within its discretion in conducting a hearing to determine the manner of service of
the Defendant’s life sentences. Accordingly, the judgments of the trial court are affirmed

State of Tennessee v. Sarah N. Eakes
M2022-01275-CCA-R3-CD
Authoring Judge: Judge Robert W. Wedemeyer
Trial Court Judge: Retired Judge Monte D. Watkins

The Defendant, Sarah N. Eakes, pleaded guilty to one count of child neglect, and the trial court sentenced her to serve eighteen months in confinement and denied her request for both an alternative sentence and judicial diversion. On appeal, the Defendant contends that the trial court erred when it denied her requests for an alternative sentence and judicial diversion, and she asks this court to enter an order granting both. The State concedes that the trial court failed to consider or weigh the relevant factors in its denial, but it asks this court to remand the case for a new sentencing hearing. After review, we reverse the trial court’s judgment and grant judicial diversion. The matter is remanded to the trial court for the imposition of the conditions, and term of judicial diversion, with the term not to exceed eighteen months.

State of Tennessee v. Demarcus Taiwan Russell, Jr.
E2022-01428-CCA-R3-CD
Authoring Judge: Judge John W. Campbell, Sr.
Trial Court Judge: Judge Alex E. Pearson

The Defendant, Demarcus Taiwan Russell, Jr., was convicted by a Greene County Criminal
Court jury of driving under the influence (“DUI”), simple possession of marijuana, driving
on a suspended license, and speeding. He was sentenced by the trial court to an effective
term of 11 months, 29 days, suspended to supervised probation after service of two days in
the county jail. On appeal, he challenges the sufficiency of the evidence for his DUI
conviction and argues that the State made an improper closing argument. Based on our
review, we affirm the judgments of the trial court.