Appellate Court Opinions

Format: 04/17/2021
Format: 04/17/2021
State of Tennessee v. Michael Rimmer
W2017-00504-SC-DDT-DD

This is a direct appeal in a capital case.  The defendant had one prior trial.  In the second trial, a Shelby County jury found the defendant guilty of first degree premeditated murder, murder in the perpetration of robbery, and aggravated robbery.  He was sentenced to death plus a consecutive eighteen years of incarceration.  The Court of Criminal Appeals affirmed the convictions and the sentence.  We now consider the appeal on automatic review pursuant to Tennessee Code Annotated section 39-13-206(a)(1).  We hold the following: (1) based on sequential jury instructions given in the first trial, the first jury did not have a full opportunity to consider the felony murder count, so double jeopardy principles did not bar retrial on the felony murder count; (2) alleged prosecutorial misconduct in the first trial did not trigger double jeopardy protections anddid not bar retrial of the defendant; (3) because the State did not have a duty to preserve the defendant’s vehicle, the trial court did not err in denying the defendant’s motion to suppress DNA evidence from the vehicle; (4) the trial court did not err under Tennessee Rule of Evidence 404(b) in admitting evidence of the defendant’s prior convictions for rape and assault of the victim; and (5) the trial court did not err under Rule 404(b) in admitting evidence of the defendant’s escape attempts and corroborating evidence of homemade shanks in his cell.  We hold further that imposition of the death penalty is not arbitrary, given the circumstances of the crime; that the evidence supports the jury’s finding that the State proved one aggravating circumstance beyond a reasonable doubt; that the evidence supports the jury’s conclusion that the aggravating circumstance outweighed any mitigating circumstances beyond a reasonable doubt; and that the sentence of death is neither excessive nor disproportionate to the penalty imposed in similar cases.  As to the remaining issues raised by the defendant, we agree with the conclusions of the Court of Criminal Appeals and attach as an appendix to this opinion the relevant portions of the intermediate court’s decision.  We affirm the convictions and the sentence.

Shelby County Supreme Court 04/16/21
State of Tennessee v. Michael Rimmer - Concurring
W2017-00504-SC-DDT-DD

 I concur in the Court’s opinion except for the analysis of the proportionality review. In 1997, this Court narrowed the scope of the proportionality review required by Tennessee Code Annotated section 39 13 206(c)(1)(D) (2018 & Supp. 2020) by limiting consideration to only those cases in which the State sought the death penalty. State v. Bland, 958 S.W.2d 651, 666 (Tenn. 1997). A majority of this Court reaffirmed this truncated approach in State v. Pruitt, 415 S.W.3d 180, 217 (Tenn. 2013). 

Shelby County Supreme Court 04/16/21
State of Tennessee v. Jimmie Dean Roy
E2019-02263-CCA-R3-CD

Pursuant to a plea agreement, the Defendant, Jimmie Dean Roy, pled guilty to five counts of identity theft and one count of identity theft trafficking, and he conceded that he violated the terms of his probation with respect to his prior convictions for three counts of burglary of an automobile and one count of theft of property valued over $1,000. The Defendant received an effective eight-year sentence to be served in confinement, and the trial court stayed the execution of the sentence and granted the Defendant a furlough to the drug court program. The Defendant subsequently fled the state. Following his arrest, the drug court removed him from the program, and the trial court ordered his sentences into execution. On appeal, the Defendant challenges his removal from the drug court program and argues that he was not afforded due process protections during the removal hearing. We affirm the judgment of the trial court.

Hamilton County Court of Criminal Appeals 04/16/21
Nulife Ventures, LLC v. Avacen, Inc., F/K/A Avacen Medical, Inc.
E2020-01157-COA-R3-CV

The trial court declined to grant injunctive relief to the plaintiff, NuLife Ventures, LLC (“NuLife”), regarding its claims that the defendant, AVACEN, Inc., f/k/a AVACEN Medical, Inc. (“AVACEN”), had been competing with NuLife and soliciting NuLife’s affiliated sellers to do the same in violation of the parties’ written agreements. NuLife has appealed. Determining that NuLife demonstrated sufficient evidence of a threat of irreparable injury warranting injunctive relief, we reverse the trial court’s judgment and remand this matter to the trial court for further proceedings.

Hamilton County Court of Appeals 04/15/21
James Eggleston v. State of Tennessee
W2019-02080-CCA-R3-PC

The petitioner, James Eggleston, appeals the denial of his post-conviction petition, arguing the post-conviction court erred in finding he received the effective assistance of counsel at trial. Following our thorough review of the record and the applicable law, we affirm the judgment of the post-conviction court.

Shelby County Court of Criminal Appeals 04/15/21
State of Tennessee v. Russell Wheeler, Jr.
W2020-00030-CCA-R3-CD

A Madison County jury convicted the defendant, Russell Wheeler, Jr., of attempted aggravated statutory rape, attempted solicitation of a minor, and disorderly conduct. Following a sentencing hearing, the trial court imposed an effective sentence of six years, eleven months, and twenty-nine days in confinement. On appeal, the defendant challenges the sufficiency of the evidence to support his attempted aggravated statutory rape and attempted solicitation of a minor convictions. The defendant also contends the trial court erred in failing to merge his convictions and in ordering a sentence of confinement without requiring a psychosexual evaluation or properly considering the appropriate factors. Following our review, we affirm the judgments of the trial court with respect to the defendant’s convictions for attempted aggravated statutory rape and disorderly conduct. However, we vacate the defendant’s conviction for attempted solicitation of a minor because the defendant was convicted of a crime which does not exist. Consequently, the judgments of the trial court are affirmed in part, vacated in part, and remanded.

Madison County Court of Criminal Appeals 04/15/21
State of Tennessee v. Jamarcus Dequan Murdock
W2020-00244-CCA-R3-CD

Aggrieved of his Hardeman County Circuit Court jury convictions of aggravated robbery, the defendant challenges the sufficiency of the convicting evidence for two of his convictions and the total effective sentence. We affirm the defendant’s convictions but, because the trial court failed to make the requisite findings to support consecutive sentences based upon the dangerous offender category, we vacate the imposition of consecutive sentences and remand the case for the limited purpose of making the appropriate findings on this issue. Upon remand, the trial court should also correct the minor clerical error in the judgment form for Count 3.

Hardeman County Court of Criminal Appeals 04/15/21
William Maurice West, Jr. v. Julie A. West
E2020-00780-COA-R3-CV

A decedent’s son brought an action for unlawful detainer against the decedent’s widow in general sessions court in an effort to take possession of property left to the son in the decedent’s will. After the general sessions court dismissed the son’s case, he requested a de novo appeal in circuit court. The son prevailed in the circuit court proceeding, and the widow appealed. Because the widow did not occupy the property pursuant to a landlord-tenant contract, the son does not have a cause of action for unlawful detainer. We, therefore, conclude that the circuit court erred in awarding possession of the property to the son. The judgment of the circuit court is reversed and the case is remanded for entry of an order of dismissal.

Knox County Court of Appeals 04/15/21
David Nichols v. Metropolitan Nashville Airport Authority
M2020-00593-COA-R3-CV

This case concerns the civil rights exception to government liability for an employee’s negligent acts under the Tennessee Governmental Tort Liability Act, Tenn. Code Ann. § 20-29-205(2). The plaintiff filed a complaint against the Metropolitan Nashville Airport Authority, asserting three negligence claims. He alleged that airport officers injured him by using an “arm bar restraint” during an arrest. The trial court dismissed the complaint upon finding the allegations amounted to a claim that the officers violated his civil rights by using excessive force. On appeal, the plaintiff argues that the civil rights exception does not apply because he alleged that the officers negligently assessed the amount of force necessary rather than alleging that they intentionally used excessive force. We agree with the trial court’s determination that the plaintiff’s allegations sound squarely in civil rights and are barred by § 20-29-205(2). Accordingly, we affirm the judgment of the trial court.

Davidson County Court of Appeals 04/15/21
State of Tennessee v. Mario Myers
W2020-00337-CCA-R3-CD

A Shelby County jury convicted the defendant, Mario Myers, of aggravated sexual battery for which he received a twelve-year sentence. On appeal, the defendant asserts the trial court erred in denying his right to self-representation and challenges the sufficiency of the evidence supporting his conviction. After a thorough review of the record, we affirm the judgment of the trial court.

Shelby County Court of Criminal Appeals 04/14/21
Kimberly Anne McGrath v. Melissa Powers Hester
M2019-02147-COA-R3-CV

This appeal arises from an action regarding life insurance proceeds. As part of a permanent parenting plan, both parents were to insure their respective lives for $300,000 until the child support obligation was completed, with the children named as the sole beneficiaries to the policies and the other parent named as trustee for the benefit of the children. The Trial Court granted summary judgment finding that the children had a vested interest in the life insurance policy but that they were only entitled to the portion of the proceeds equivalent to the remaining child support obligation. With the defendant’s concession on appeal that the children had a vested interest in the life insurance proceeds, that a constructive trust was appropriate, and that the most recent permanent parenting plan was controlling, the only issues before this Court involved the amount of life insurance proceeds to which the children were entitled and attorney’s fees. We modify the amount of the Trial Court’s judgment and hold that the children are entitled to the entire $300,000 life insurance proceeds per the agreed permanent parenting plan. We affirm the Trial Court’s denial of attorney’s fees. Additionally, we deny the mother’s request for an award of attorney’s fees incurred on appeal.

Wilson County Court of Appeals 04/14/21
Natasha S. Et Al. v. Madison M.
M2020-00668-COa-R3-CV

Adoptive parents filed a petition to terminate their child’s visitation with her biological grandmother on the grounds that the grandmother violated the terms of the agreed order setting visitation. The trial court terminated the grandmother’s visitation based upon its determination that continued visitation presented a risk of substantial harm to the child. Because the trial court failed to analyze the case under the legal standards applicable to a modification of visitation, we vacate the order of the trial court and remand for the entry of an order with the necessary findings of fact and conclusions of law.

Montgomery County Court of Appeals 04/14/21
Candes Prewitt v. Saint Thomas Health
M2020-00858-COA-R3-CV

The plaintiff commenced this action against Saint Thomas Health alleging negligence per se and invasion of privacy through the unauthorized access and disclosure of her confidential medical records relating to the birth of her child at Saint Thomas Midtown Hospital (“Midtown Hospital”) in violation of Tennessee’s Patient’s Privacy Protection Act. Saint Thomas Health responded by filing a motion to dismiss under Tenn. R. Civ. P. 8.01 for failure to plead facts stating a claim with particularity. Specifically, it argued the claims should be dismissed because the complaint failed to address how Saint Thomas Health could be held liable for unauthorized access and use of the plaintiff’s medical information from a separate and distinct entity, Midtown Hospital, when the complaint did not allege that an employee or agent of Saint Thomas Medical engaged in such conduct. Alternatively, relying on Tenn. R. Civ. P. 12.02(6), Saint Thomas Health claimed the action was barred by the statute of limitations under Tenn. Code Ann. § 28-3-104. The trial court granted the motion on both grounds and dismissed all claims. This appeal followed. In her appellate brief, Plaintiff takes issue with the trial court’s application of the statute of limitations but ignores the trial court’s dismissal of her claims under Tenn. R. Civ. P. 8.01. Tennessee Rule of Appellate Procedure 27 provides that the appellant’s brief shall contain “[a] statement of facts, setting forth the facts relevant to the issues presented for review with appropriate references to the record” as well as “an argument” setting forth the contentions of the appellant with respect to the issues presented. Tenn. R. App. P. 27(a)(6) and (7). Additionally, Rule 6(a)(4) of the Rules of the Court of Appeals requires the appellant provide a written argument in regard to each issue on appeal that includes “[a] statement of each determinative fact relied upon with citation to the record where evidence of such fact may be found.” A party’s failure to comply with these rules “waives the issues for review.” Bean v. Bean, 40 S.W.3d 52, 55 (Tenn. Ct. App. 2000). Plaintiff’s brief fails to comply with these rules by, inter alia, failing to set forth an argument or facts relevant to the trial court’s dismissal of her complaint under Tenn. R. Civ. P. 8.01, which was an independent basis for dismissal. As a consequence, the issue is waived. Accordingly, we affirm.

Davidson County Court of Appeals 04/14/21
State of Tennessee v. Christopher Aaron Hodges
E2019-01049-CCA-R3-CD

A Sullivan County Criminal Court Jury convicted the Appellant, Christopher Aaron Hodges, of sexual battery by an authority figure, and the trial court sentenced the Appellant to five years in the Tennessee Department of Correction. On appeal, the Appellant challenges the denial of his motion for a judgment of acquittal at the close of the State’s proof pursuant to Tennessee Rule of Criminal Procedure 29, the trial court’s ruling as a thirteenth juror pursuant to Tennessee Rule of Criminal Procedure 33(d), the trial court’s refusal to grant a continuance, the trial court’s failure to allow defense counsel to make closing argument before instructing the jury, and the trial court’s failure to grant a motion for new trial. Upon review, we affirm the judgment of the trial court.

Sullivan County Court of Criminal Appeals 04/14/21
State of Tennessee v. Nicholas Grassia
E2020-00627-CCA-R3-CD

The defendant, Nicholas Grassia, appeals the trial court’s denial of his motion, filed pursuant to Tennessee Rule of Criminal Procedure 32, to withdraw his guilty pleas to charges of aggravated kidnapping and unlawful possession of a firearm by a convicted felon, arguing that the pleas were the product of the ineffective assistance of counsel. Because the defendant failed to establish manifest injustice requiring that he be allowed to withdraw his pleas, we affirm the judgment of the trial court.

Knox County Court of Criminal Appeals 04/13/21
Antonio Smith v. State of Tennessee
E2020-00601-CCA-R3-PC

The petitioner, Antonio Smith, appeals the denial of his petition for post-conviction relief, which petition challenged his 2016 Knox County Criminal Court Jury convictions of the sale of heroin in a school zone, the possession with intent to sell or deliver heroin in a school zone, possession of marijuana, and the possession of a firearm with the intent to go armed during the commission of a dangerous felony. He argues that he was deprived of the effective assistance of counsel. Discerning no error, we affirm.

Knox County Court of Criminal Appeals 04/13/21
State of Tennessee v. Tandy Tomlin
M2019-00274-CCA-R3-CD

The Appellant, Tandy Tomlin, was convicted by a Rutherford County Circuit Court Jury of eight counts of rape of a child, two counts of aggravated sexual battery, one count of solicitation to commit rape of a child, and one count of solicitation to commit aggravated sexual battery. The trial court merged two of the rape of a child convictions and sentenced the Appellant to consecutive sentences of thirty years for each rape of a child conviction, ten years for each aggravated sexual battery conviction, ten years for the solicitation of rape of a child conviction, and five years for the solicitation of aggravated sexual battery conviction, for a total effective sentence of 245 years. On appeal, the Appellant contends that the evidence was insufficient to sustain his convictions, that the trial court erred in sentencing, and that his right to a fair trial was violated when he was escorted into the courtroom through a security door by a uniformed officer in view of the jury pool. Upon review, we conclude that the State adduced insufficient evidence to sustain the Appellant’s conviction of rape of a child in count 7 and reduce the conviction to aggravated sexual battery with an accompanying sentence of ten years to be served consecutively to the remaining sentences. The trial court’s judgments are affirmed in all other respects.

Rutherford County Court of Criminal Appeals 04/13/21
State of Tennessee v. Deandre Montavis Outlaw
W2020-00436-CCA-R3-CD

Following a trial, a Madison County jury found Defendant, Deandre Montavis Outlaw, guilty of theft of property valued under $1,000. The trial court sentenced Defendant to eleven months and twenty-nine days’ incarceration. On appeal, Defendant argues that the evidence was insufficient to support his conviction for theft of property valued under $1,000. Following a thorough review, we affirm the judgment of the trial court.

Madison County Court of Criminal Appeals 04/13/21
Larry Brown v. State of Tennessee
W2019-01803-CCA-R3-PC

Petitioner, Larry Brown, appeals from the Shelby County Criminal Court’s denial of his petition for post-conviction relief, in which he alleged that his trial counsel was ineffective for failing to “ensure the enforcement of a plea agreement promising concurrent service of Petitioner’s state and federal sentences.” Upon review, we conclude that the petition was filed outside the one-year statute of limitations applicable to post-conviction proceedings. However, because we are unable to determine from the record whether due process requires the tolling of the statute of limitations, we vacate the post-conviction court’s order and remand the case to the
post-conviction court for a determination of whether due process tolling applies.

Shelby County Court of Criminal Appeals 04/13/21
Helen Shaw as Administrator for the Estate of John Suttle v. Lawrence B. Gross, MD, et al.
W2019-01448-COA-R3-CV

Appellant appeals the dismissal of her health care liability complaint on the basis of the expiration of the applicable statute of limitations. Because Appellant did not substantially comply with Tennessee Code Annotated section 29-26-121(a)(2)(E), she was not entitled to an extension on the statute of limitations. The trial court’s decision that her complaint should be dismissed is affirmed.

Shelby County Court of Appeals 04/13/21
Lisa Ann Woods Neisler v. Guy Wayne Neisler, III
E2020-00761-COA-R3-CV

Father appeals the trial court’s order establishing a permanent parenting plan on solely procedural grounds. We affirm the decision of the trial court and award Mother attorney’s fees incurred in this frivolous appeal.

McMinn County Court of Appeals 04/13/21
State of Tennessee v. Kevin Caprice Smith
M2020-00181-CCA-R3-CD

The Defendant, Kevin Caprice Smith, was convicted by a Davidson County Criminal Court jury of premeditated first-degree murder, a Class A felony; attempted first-degree murder, a Class A felony; employing a firearm during the commission of a dangerous felony, a Class C felony; possession of cocaine with intent to sell or deliver, a Class B felony; possession of heroin with intent to sell or deliver, a Class B felony; possession of a firearm by a felon with a prior felony drug conviction, a Class D felony; and possession of oxycodone, a Class A misdemeanor, and was sentenced to an effective term of life imprisonment plus ten years. On appeal, he challenges the sufficiency of the convicting evidence. After review, we affirm the judgments of the trial court.

Davidson County Court of Criminal Appeals 04/13/21
State of Tennessee v. Andre Bowen
W2019-01210-CCA-R3-CD

A Shelby County grand jury indicted the defendant, Andre Bowen, and his co-defendant, Anthony Olivo, for two counts of first-degree, felony murder (Counts 1 and 2) and attempted especially aggravated robbery (Count 3). The grand jury also indicted the defendant for two counts of unlawful possession of a firearm  by a convicted felon (Counts 4 and 5). After a joint trial, the jury acquitted the defendant on Count 1 but found him guilty of the lesser-included offense of facilitation of first-degree, felony murder in Count 2, attempted especially aggravated robbery in Count 3, and unlawful possession of a firearm by a convicted felon in Counts 4 and 5, for which the trial court imposed an effective sentence of seventy-two years. On appeal, the defendant challenges the sufficiency of the evidence supporting his convictions and argues the trial court erred in sentencing. After our review, we affirm the judgments of the trial court.

Shelby County Court of Criminal Appeals 04/13/21
Romey Green, III v. Kasandra Cherry Green
W2019-01416-COA-R3-CV

In this divorce case, Wife takes issue with how the trial court distributed the possessory interest in the marital home and Husband’s Tennessee Consolidated Retirement System (“TCRS”) benefits. Because the trial court did not assign values to all of the relevant property subject to division, we vacate the judgment and remand the case to the trial court for additional findings.

Tipton County Court of Appeals 04/12/21
Cora M. Haywood v. Trexis Insurance Corporation, et al.
W2020-00418-COA-R3-CV

Following an automobile accident involving Appellant and Appellee, Appellant filed a civil warrant against Appellee’s automobile insurance carrier in the general sessions court. Later, after the statute of limitations had run, Appellant filed an amended civil warrant adding Appellee as a defendant. Together, Appellee and the insurance carrier filed a joint motion to dismiss, alleging that: (1) the statute of limitations barred Appellant’s claims against Appellee; and (2) the automobile insurance carrier was not a proper party to the lawsuit. The general sessions court granted the motion to dismiss. Thereafter, Appellant appealed the dismissal but did not file a new complaint in the trial court. Appellee and his insurance carrier moved to dismiss, and the trial court granted the motion. Discerning no error, we affirm.

Shelby County Court of Appeals 04/12/21