Opinions

State of Tennessee v. Kenneth Hamm
W2013-01125-CCA-R3-CD
Authoring Judge: Presiding Judge Joseph M. Tipton
Trial Court Judge: Judge W. Mark Ward

The Defendant, Kenneth Hamm, was convicted by a Shelby County Criminal Court jury of attempt to commit rape of a child, a Class B felony. See T.C.A. §§ 39-13-522 (2010) (rape of a child), 39-12-101 (criminal attempt), 39-12-107 (criminal attempt classification). The trial court sentenced him as a Range I, standard offender to ten years and one month in confinement. On appeal, he contends that (1) the evidence is insufficient to support his conviction; (2) the trial court erred in admitting into evidence his uncorroborated statements to Officer Diffee; (3) the court erred in excluding evidence of the victim’s previous allegations of sexual abuse by others; and (4) the court erred by applying insufficient weight to the mitigating factors during sentencing. We affirm the judgment of the trial court.

Billy McIllwain v. State of Tennessee
W2013-02306-CCA-R3-PC
Authoring Judge: Presiding Judge Joseph M. Tipton
Trial Court Judge: Judge Clayburn Peeples

The Petitioner, Billy McIllwain, appeals the Gibson County Circuit Court’s denial of his petition for post-conviction relief from his 2009 convictions for first degree murder, two counts of aggravated assault, and possession of a deadly weapon with the intent to employ it in the commission of the offense and his effective sentence of life plus six years. The Petitioner contends that the trial court erred by denying him relief because he received the ineffective assistance of counsel. We affirm the judgment of the trial court.

Gary Carr v. State of Tennessee
W2014-00579-CCA-R3-HC
Authoring Judge: Judge Roger A. Page
Trial Court Judge: Judge Joe H. Walker III

The Petitioner, Gary Carr, appeals the Circuit Court for Lauderdale County’s denial of his pro se petition for writ of habeas corpus. The State has filed a motion requesting that this court affirm the trial court’s judgment pursuant to Rule 20 of the Rules of the Court of Criminal Appeals. Following our review, we grant the State’s motion and affirm the judgment of the trial court.

Raines Brothers, Inc. v. H. Michael Chitwood et al.
E2013-02232-COA-R3-CV
Authoring Judge: Judge Tomas R. Frierson, II
Trial Court Judge: Judge Jacqueline Bolton

This contract action stems from the defendant’s, H. Michael Chitwood’s, failure to pay for construction work that was performed by the plaintiff, Raines Brothers, Inc. (“Raines”). The work was performed on a home that was occupied by Mr. Chitwood but owned by a trustee, James Dreaden, who was also named as a defendant. Following a bench trial, the trial court awarded Raines a judgment against Mr. Chitwood and Mr. Dreaden (collectively “Defendants”) in the amount of $66,762.71. The trial court also awarded pre-judgment interest at the rate of eighteen percent per annum, beginning August 14, 2007. The trial court denied Raines’s claim for attorney’s fees. Defendants timely appealed the trial court’s ruling. Having determined that Raines adequately proved its entitlement to this amount pursuant to the parties’ contract, we affirm the trial court’s judgment of $66,762.71 against Mr. Chitwood. We reverse the trial court’s judgment against Mr. Dreaden. We modify the trial court’s award of the rate of interest from eighteen percent per annum to ten percent in accordance with relevant statutory and case law. We also reverse the trial court’s denial of Raines’s claim for attorney’s fees pursuant to the parties’ contract and remand for a determination of the proper amount of interest to be charged, as well as a reasonable award of attorney’s fees.

State of Tennessee v. Robert King Vaughn, Jr.
M2013-02099-CCA-R3-CD
Authoring Judge: Judge Jerry L. Smith
Trial Court Judge: Judge David Bragg

Appellant, Robert King Vaughn, Jr., pled guilty to aggravated burglary and theft in case number F-64238 and aggravated burglary in case number F-68086 in Rutherford County Circuit Court.  As a result, in case number F-64238, Appellant was ordered to serve 90 days in incarceration and the remainder of a four-year sentence on probation.  In case number F-68086, Appellant was sentenced to thirteen years.  The sentence was suspended and Appellant was ordered to serve the term on Community Corrections.  A warrant was filed against Appellant for a violation of the terms of the Community Corrections sentence and probation.  After a hearing, the trial court ordered Appellant to serve the remainder of the four-year sentence and thirteen-year sentence in incarceration.  Appellant appeals.  After a review of the record and applicable authorities, we affirm the judgments of the trial court but remand the matter to the trial court for correction of the order revoking Appellant’s Community Corrections sentence in case number F-68086 to reflect a violation of Community Corrections rather than probation.

Doyle S. Silliman, et al. v. City of Memphis
W2013-02858-COA-R3-CV
Authoring Judge: Judge J. Steven Stafford
Trial Court Judge: Judge Walter L. Evans

In this case, we are called upon to review the trial court’s decision to set aside a consent order regarding an annexation on the basis of the subsequent passage of legislation allegedly affecting the agreed-upon annexation. Because we conclude that Tennessee Code Annotated Section 6-51-122 does not apply to prohibit the annexation ordinance at issue, we reverse the trial court’s judgment and reinstate the consent order.

State of Tennessee v. Aaron Guilliams
E2013-01405-CCA-R3-CD
Authoring Judge: Judge Jeffrey S. Bivins
Trial Court Judge: Judge Donald Ray Elledge

Aaron Guilliams (“the Defendant”) pleaded guilty to one count of attempted aggravated assault. Pursuant to a plea agreement, the Defendant was sentenced to two years, suspended to supervised probation, and reserved the right to have a hearing to determine his eligibility for judicial diversion. After a hearing, the trial court denied the Defendant’s request for judicial diversion. The Defendant timely appealed the trial court’s ruling. After a thorough review of the record and applicable law, we affirm the trial court’s judgment.

State of Tennessee v. Kenneth Moore
M2013-02022-CCA-R3-CD
Authoring Judge: Judge James Curwood Witt, Jr.
Trial Court Judge: Judge Leon C. Burns, Jr.

The defendant, Kenneth Moore, appeals his DeKalb County Criminal Court jury conviction of aggravated sexual battery, claiming that the trial court erred by denying his motions to introduce certain evidence, including evidence offered pursuant to Tennessee Rule of Evidence 412, and that the evidence was insufficient to support his conviction.  Discerning no error, we affirm the judgment of the trial court.

Estate of Mary Lou Lamb v. D. Jimmy Brinias, et al.
E2013-01550-COA-R3-CV
Authoring Judge: Judge D. Michael Swiney
Trial Court Judge: Chancellor Michael W. Moyers

The Estate of Mary Lou Lamb appeals a grant of summary judgment to defendant Ernest L. Joyner raising issues regarding whether the Chancery Court for Knox County (“the Trial Court”) erred in finding that the plaintiff’s response to the defendant’s motion for summary judgment was filed untimely and therefore was not considered by the Trial Court, and whether the Trial Court erred in granting summary judgment on the issue of adverse possession. We find and hold: (1) that the Trial Court did not err in finding that the plaintiff’s response was filed untimely; and (2) that Ernest L. Joyner failed to show that he was entitled to summary judgment as a matter of law. We vacate the grant of summary
judgment on the issue of adverse possession and remand this case to the Trial Court for further proceedings.

State of Tennessee v. Marvin Magay James Green
E2013-02425-CCA-R3-CD
Authoring Judge: Judge Jeffrey S. Bivins
Trial Court Judge: Judge R. Jerry Beck

Marvin Magay James Green (“the Defendant”) pleaded guilty to several offenses, including possession with intent to sell or deliver .5 grams or more of cocaine within 1000 feet of a school zone (“the cocaine conviction”). The trial court sentenced the Defendant to fifteen years of incarceration for the cocaine conviction, to be served at 100%. The Defendant subsequently filed motions, a petition for post-conviction relief, and a petition for writ of habeas corpus, all attacking the cocaine conviction and sentence. The trial court consistently denied relief, and the Defendant appealed. This Court consolidated the Defendant’s appeals. Upon our thorough review of the record and applicable law, we conclude that the Defendant is entitled to no relief. We also have determined that the judgment order entered on the cocaine conviction contains a clerical error. Therefore, we remand this matter for the correction of that error. In all other respects, we affirm the trial court’s rulings and judgments.

Bradley Wayne Adams v. State of Tennessee
E2013-01928-CCA-R3-PC
Authoring Judge: Judge Jeffrey S. Bivins
Trial Court Judge: Judge Carroll L. Ross

Bradley Wayne Adams (“the Petitioner”) pleaded guilty to one count each of second degree murder and aggravated assault. The Petitioner subsequently filed for post-conviction relief, alleging ineffective assistance of counsel. Following a hearing, the post-conviction court denied relief. The Petitioner now appeals. Upon our thorough review of the record and applicable law, we affirm the judgment of the post-conviction court.

Marvin Bobby Parker v. State of Tennessee
M2012-02740-CCA-R3-PC
Authoring Judge: Judge John Everett Williams
Trial Court Judge: Judge Frankin L. Russell

The petitioner, Marvin Bobby Parker, was convicted of reckless aggravated assault, two counts of assault, and one count of reckless endangerment after a violent confrontation at a racetrack.  He appeals the denial of his petition for post-conviction relief.  On appeal, the petitioner asserts that the post-conviction court erred in rejecting his argument that he received the ineffective assistance of counsel when: (1) trial counsel did not allow him to testify at the grand jury proceedings; (2) trial counsel did not request an instruction on self-defense during trial; (3) trial counsel failed to call certain witnesses at trial and at the preliminary hearing; (4) trial counsel failed to prepare him to testify; (5) trial counsel failed to pursue or advise him regarding pretrial diversion; (6) trial counsel did not introduce a videotape into evidence; and (7) trial counsel’s cumulative errors deprived him of a fair trial.  After a review of the record, we conclude that the petition was properly dismissed, and we affirm the judgment of the post-conviction court.

In re: Kiara C.
E2013-02066-COA-R3-PT
Authoring Judge: Judge Thomas R. Frierson
Trial Court Judge: Judge Telford E. Forgety, Jr.

This is a termination of parental rights case, focusing on Kiara C., the minor child (“Child”) of Mark C. (“Father”) and Pamela B. (“Mother”). On April 9, 2012, Mother and Mother’s husband, Richard B. (“Stepfather”), filed a petition for termination of Father’s parental rights and adoption of the Child by Stepfather. Following a bench trial, the trial court granted the petition for termination upon its finding, by clear and convincing evidence, that Father had abandoned the Child by willfully failing to visit her and willfully failing to provide financial support in the four months preceding the filing of the petition. The court further found, by clear and convincing evidence, that termination of Father’s parental rights was in the Child’s best interest. Father has appealed. We affirm.

Robert Jason Burgess v. Stanton Heidle, Warden
M2012-02745-CCA-R3-HC
Authoring Judge: Judge Jerry L. Smith
Trial Court Judge: Judge Forest A. Durard

Petitioner, Robert Jason Burgess, pled guilty to two counts of the sale of a controlled substance and two counts of rape in Marshall County.  As a result, he was sentenced to an effective sentence of twenty-six years.  After the denial of post-conviction relief, Petitioner sought habeas corpus relief in which he argued that his guilty plea was unknowingly or involuntarily entered because he was not informed that his sentence carried a community supervision for life provision.  After a review of the record and applicable authorities, we affirm the judgment of the habeas corpus court which dismissed the petition for relief.

Capital Bank v. Oscar Brock, et al.
E2013-01140-COA-R3-CV
Authoring Judge: Judge Charles D. Susano, Jr.
Trial Court Judge: Judge Jeffrey M. Atherton

Capital Bank filed a complaint seeking a deficiency judgment against Oscar Brock and Frank E. Cowden, III (“Defendants”) after they defaulted on a loan and following the sale at foreclosure of the property securing the debt. After settlement discussions were unsuccessful, Capital Bank moved for summary judgment. It asserted that no genuine issue of material fact exists and that it is entitled to a judgment as a matter of law. Defendants contested the motion but only as to the amount of the deficiency and the issue of whether Capital Bank is entitled to an award of attorney’s fees. As a defense to the deficiency claim, Defendants stated that the property was sold at foreclosure for an amount “materially less” than its fair market value and that Capital Bank’s knowledge of the alleged less-than- arketvalue sales price amounted to fraud, collusion or misconduct. The trial court granted Capital Bank’s motion. It was awarded a judgment of $168,798.98 which amount includes 70,628.85 in attorney’s fees. Defendants appeal.  We affirm.

Ronald L. Allen v. State of Tennessee
W2014-00041-CCA-R3-HC
Authoring Judge: Judge James Curwood Witt Jr.
Trial Court Judge: Judge R. Lee Moore Jr.

The petitioner, Ronald L. Allen, filed a petition for habeas corpus relief in the Lake County Circuit Court challenging his 2003 conviction of rape of a child. Because the petition fails to present a cognizable claim for habeas corpus relief, we affirm the habeas corpus court’s summary dismissal of the petition.

State of Tennessee v. Romilus Caraway
W2013-00438-CCA-R3-CD
Authoring Judge: Judge James Curwood Witt Jr.
Trial Court Judge: Judge James C. Beasley Jr.

The defendant, Romilus Caraway, appeals his Shelby County Criminal Court jury convictions of aggravated robbery and aggravated kidnapping, claiming that the trial court erred by denying his motions to exclude certain evidence at trial and by permitting the jury to deliberate a second day. In addition, the defendant claims that the evidence is insufficient to support his convictions. Discerning no error, we affirm.

Tyrone Chalmers v. State of Tennessee
W2013-02317-CCA-R3-PD
Authoring Judge: Judge Alan E. Glenn
Trial Court Judge: Special Judge Don R. Ash

The petitioner, Tyrone Chalmers, appeals from the Shelby County Criminal Court’s denial of his petition for writ of error coram nobis in which he challenged his death sentence resulting from his 1997 conviction for first degree felony murder. On appeal, the petitioner contends that he is entitled to coram nobis relief because he is intellectually disabled and, therefore, ineligible for the death penalty. We affirm the judgment of the trial court.

Mike Locke and Cvan Avian v. The Estate of David Rose
M2012-02508-COA-R3-CV
Authoring Judge: Presiding Judge Patricia J. Cottrell
Trial Court Judge: Judge David Randall Kennedy

After the death of David Rose, his two putative non-marital sons became involved in three separate lawsuits related to the proper distribution of his property. When Mr. Rose’s Executrix filed to probate his Will in solemn form, the putative sons, who were named residuary beneficiaries, objected, but later withdrew their objection. They then filed suit to set aside a 2006 Trust Agreement in order to reinstate prior trusts, the assets of which were to be distributed to Mr. Rose’s issue at his death. They also filed a separate lawsuit to establish Mr. Rose as their biological father. Their attempts to obtain some of their father’s assets were all unsuccessful. In all three cases, the trial court held that they were barred from establishing a father-son relationship because their attempts were time barred. We affirm the trial court’s dismissal of the sons’ petition to establish paternity filed in the probate case two years after the order admitting the will to probate. However, we reverse the trial court’s dismissal of the petitioners’ complaint challenging the validity of the 2006 Trust Agreement because they have standing to attempt to establish that they are “issue” of Mr. Rose. The deadline imposed by the trial court applied only “for purposes of intestate succession,” and the trust case did not involve inheritance through the statute regarding heirs of a person dying without a will. Mr. Rose had a will, which was probated. Any assets to be distributed to Mr. Locke and Mr. Avian from the preexisting trust(s) would be pursuant to the terms of the trust document(s), not pursuant to intestate succession. For the purpose of establishing their interest in the prior trust(s), the purported children were entitled to present proof that they were the children of Mr. Rose and were not time barred.

Mike Locke and Cvan Avian v. The Estate of David Rose - Dissenting in Part and Concurring in Part
M2012-02508-COA-R3-CV
Authoring Judge: Judge Frank G. Clement , Jr.
Trial Court Judge: Judge David Randall Kennedy

I respectfully dissent from the majority’s conclusion that the plaintiffs are not time barred to establish that they have standing to contest David Rose’s 2006 Trust Agreement. I fully concur with the affirmance of the dismissal of the other underlying cases.

Mike Locke and Cvan Avian v. The Estate of David Rose
M2012-01314-COA-R3-CV
Authoring Judge: Presiding Judge Patricia J. Cottrell
Trial Court Judge: Judge David Randall Kennedy

After the death of David Rose, his two putative non-marital sons became involved in three separate lawsuits related to the proper distribution of his property. When Mr. Rose’s Executrix filed to probate his Will in solemn form, the putative sons, who were named residuary beneficiaries, objected, but later withdrew their objection. They then filed suit to set aside a 2006 Trust Agreement in order to reinstate prior trusts, the assets of which were to be distributed to Mr. Rose’s issue at his death. They also filed a separate lawsuit to establish Mr. Rose as their biological father. Their attempts to obtain some of their father’s assets were all unsuccessful. In all three cases, the trial court held that they were barred from establishing a father-son relationship because their attempts were time barred. We affirm the trial court’s dismissal of the sons’ petition to establish paternity filed in the probate case two years after the order admitting the will to probate. However, we reverse the trial court’s dismissal of the petitioners’ complaint challenging the validity of the 2006 Trust Agreement because they have standing to attempt to establish that they are “issue” of Mr. Rose. The deadline imposed by the trial court applied only “for purposes of intestate succession,” and the trust case did not involve inheritance through the statute regarding heirs of a person dying without a will. Mr. Rose had a will, which was probated. Any assets to be distributed to Mr. Locke and Mr. Avian from the preexisting trust(s) would be pursuant to the terms of the trust document(s), not pursuant to intestate succession. For the purpose of establishing their interest in the prior trust(s), the purported children were entitled to present proof that they were the children of Mr. Rose and were not time barred.

Mike Locke and Cvan Avian v. The Estate of David Rose - Dissenting in Part and Concurring in Part
M2012-01314-COA-R3-CV
Authoring Judge: Judge Frank G. Clement, Jr.
Trial Court Judge: Judge David Randall Kennedy

I respectfully dissent from the majority’s conclusion that the plaintiffs are not time barred to establish that they have standing to contest David Rose’s 2006 Trust Agreement. I fully concur with the affirmance of the dismissal of the other underlying cases.

Mike Locke and Cvan Avian v. The Estate of Thomas W. Schlater, et al.
M2012-02504-COA-R3-CV
Authoring Judge: Presiding Judge Patricia J. Cottrell
Trial Court Judge: Judge David Randall Kennedy

After the death of David Rose, his two putative non-marital sons became involved in three separate lawsuits related to the proper distribution of his property. When Mr. Rose’s Executrix filed to probate his Will in solemn form, the putative sons, who were named residuary beneficiaries, objected, but later withdrew their objection. They then filed suit to set aside a 2006 Trust Agreement in order to reinstate prior trusts, the assets of which were to be distributed to Mr. Rose’s issue at his death. They also filed a separate lawsuit to establish Mr. Rose as their biological father. Their attempts to obtain some of their father’s assets were all unsuccessful. In all three cases, the trial court held that they were barred from establishing a father-son relationship because their attempts were time barred. We affirm the trial court’s dismissal of the sons’ petition to establish paternity filed in the probate case two years after the order admitting the will to probate. However, we reverse the trial court’s dismissal of the petitioners’ complaint challenging the validity of the 2006 Trust Agreement because they have standing to attempt to establish that they are “issue” of Mr. Rose. The deadline imposed by the trial court applied only “for purposes of intestate succession,” and the trust case did not involve inheritance through the statute regarding heirs of a person dying without a will. Mr. Rose had a will, which was probated. Any assets to be distributed to Mr. Locke and Mr. Avian from the preexisting trust(s) would be pursuant to the terms of the trust document(s), not pursuant to intestate succession. For the purpose of establishing their interest in the prior trust(s), the purported children were entitled to present proof that they were the children of Mr. Rose and were not time barred.

State of Tennessee v. Donald Wayne McCall
W2013-01501-CCA-R3-CD
Authoring Judge: Presiding Judge Joseph M. Tipton
Trial Court Judge: Judge Clayburn Peeples

The Defendant, Donald Wayne McCall, was convicted by a Crockett County Circuit Court jury of rape of a child, a Class A felony, and two counts of aggravated sexual battery, Class B felonies. See T.C.A. §§ 39-13-522, 39-13-504(a)(4) (2010). The trial court sentenced the Defendant as a Range II, multiple offender to forty years for child rape at 100% service and to twenty years for each aggravated sexual battery conviction at 100% service. The trial court ordered consecutive sentences, for an effective eighty-year sentence. On appeal, the Defendant contends that (1) the evidence is insufficient to support his convictions, (2) the trial court erred by failing to exclude evidence related to one victim’s credibility, and (3) the trial court erred by permitting the State to impeach him with his previous convictions. We affirm the judgments of the trial court.

Chivous S. Robinson v. State of Tennessee
W2013-02622-CCA-R3-HC
Authoring Judge: Judge James Curwood Witt Jr.
Trial Court Judge: Judge Joseph H. Walker III

The petitioner, Chivous S. Robinson, filed a petition for habeas corpus relief in the Hardeman County Circuit Court challenging his 2000 convictions of second degree murder and solicitation of first degree murder. Because the petition fails to present a cognizable claim for habeas corpus relief, we affirm the habeas corpus court’s summary dismissal of the petition.