Appellate Court Opinions

Format: 04/21/2021
Format: 04/21/2021
State of Tennessee v. Michael E. White
W2020-00857-CCA-R3-CD

The defendant, Michael E. White, appeals the order of the trial court revoking his probation and ordering him to serve his original
nine-year sentence in confinement. Upon review of the record, we conclude the trial court did not abuse its discretion in finding the defendant violated the terms of his probation by imposing the original sentence. Accordingly, the judgment of the trial court is affirmed.

Madison County Court of Criminal Appeals 01/15/21
Anthony Justice v. Craftique Construction, Inc., Et Al.
E2019-00884-COA-R3-CV

A homeowner in a subdivision sued the construction company that developed the subdivision and the president of the company for damages, claiming that the subdivision was a “failed development” because only five out of thirty-one lots were developed before construction ceased and promised amenities, including a club house and swimming pool, were never built. The homeowner obtained default judgments for liability and money damages against the company and a default judgment for liability against the company president. During the trial to determine damages against the company president, the homeowner orally stated his intent to nonsuit his claim for damages while retaining the default judgment for liability. The trial court entered an order nonsuiting the homeowner’s entire claim against the company president. The homeowner appeals, claiming the right to a partial nonsuit. We affirm the trial court’s judgment.

Loudon County Court of Appeals 01/15/21
In Re Scarlet W., et al.
W2020-00999-COA-R3-PT

This is a termination of parental rights case. The Chancery Court for Henderson County terminated the parental rights of a mother to two minor children based upon two statutory grounds: persistence of conditions and a ten-year prison sentence while the children were under the age of eight years old. We reverse the trial court’s finding that the ground of persistence of conditions was satisfied by clear and convincing evidence. We affirm, however, the trial court’s finding that clear and convincing evidence supports termination of the mother’s parental rights based upon her current prison sentence. We also affirm the trial court’s conclusion that termination is in the best interests of both children.

Henderson County Court of Appeals 01/15/21
Jabari Issa Mandela a/k/a John Wooden v. Tennessee Department of Correction, et al.
W2019-01171-COA-R3-CV

This appeal arises from a petition for writ of certiorari filed by a prisoner, Jabari Issa Mandela a/k/a John Wooden (“Petitioner”), seeking relief pursuant not only to a writ of certiorari but also including in his petition an action seeking damages pursuant to 42 U.S.C. § 1983 due to an alleged violation of his constitutional rights. Following the respondents’ motion to dismiss pursuant to Tennessee Rule of Civil Procedure 12.02(1) and (6) and Petitioner’s response thereto, the Trial Court dismissed Petitioners’ original civil rights cause of action, filed pursuant to section 1983, due to its impermissible joinder with an appellate cause of action. The Trial Court further granted the motion to dismiss as to the writ of certiorari, in part, because Petitioner had failed to exhaust his administrative remedies. Because Petitioner has failed to comply with Tennessee Rule of Appellate Procedure 27 by not presenting an argument concerning whether he had exhausted his administrative remedies prior to filing his petition for writ of certiorari, he has waived this issue on appeal. As such, the Trial Court’s dismissal of the petition is affirmed. Petitioner also raises an issue concerning the amount of filing fees he was required to pay by the Trial Court to initiate the current action. On remand, the Trial Court shall revisit its order regarding the amount of filing fees to determine compliance with Tennessee Code Annotated § 8-21-401.

Lake County Court of Appeals 01/15/21
Crystal Spearman, Individually and as Parent and Next Friend of Kenji Lewis, a Minor v. Shelby County Board of Education, et al.
W2019-02050-COA-R3-CV

This suit involves an injury sustained by a minor at a track and field tryout at the middle school he attended. The minor’s mother brought suit individually and on behalf of her minor child against the county school system and the school board for the minor’s injuries and subsequent medical expenses. After a bench trial, the trial court found in favor of the plaintiff and awarded her $200,000 in compensatory damages. The defendants appealed. We affirm the trial court’s decisions and remand.

Shelby County Court of Appeals 01/15/21
Dennis Williamson v. Regional One Health, et al.
W2019-02213-COA-R3-CV

In this healthcare liability action, Appellant/patient appeals the trial court’s grant of summary judgment in favor of Appellee/hospital. The trial court granted summary judgment based, inter alia, on its conclusion that Appellant failed to provide evidence that Appellee’s immunity under the Governmental Tort Liability Act is waived due to some action/inaction of its employee. Affirmed and remanded.

Shelby County Court of Appeals 01/15/21
State of Tennessee v. Christopher C. Sullivan
E2019-01853-CCA-R3-CD

The Defendant, Christopher C. Sullivan, was charged with violation of the sex offender registry and perjury. A Sullivan County jury found the Defendant not guilty of violating the sex offender registry and guilty of perjury. The trial court sentenced the Defendant to an effective sentence of six years on probation, sixty days of which were to be served in confinement. The Defendant appeals his conviction and sentence, arguing that the evidence presented at trial was insufficient to convict him of perjury, that the trial court abused its discretion in admitting as evidence a judgment of conviction form from New York and the indictment underlying that conviction, that the jury’s verdicts were inconsistent, and that the trial court imposed an excessive sentence. After review of the record, we affirm the trial court’s judgment.

Sullivan County Court of Criminal Appeals 01/14/21
State of Tennessee v. Robert Jason Allison
M2017-02367-SC-R11-CD

We granted permission to appeal to the Defendant to examine the propriety of his convictions for money laundering based on his receipt of payment for drugs he “fronted” to a confidential informant.  On separate occasions, the Defendant delivered a quantity of marijuana to the informant.  At the time of delivery, the informant paid the Defendant for a portion of marijuana, but the Defendant also fronted additional marijuana to the informant, meaning the Defendant had an expectation that he would be paid later with proceeds from the informant’s sale of the drugs.  The Defendant subsequently received payment.  Based on these actions, the Defendant was charged with and convicted of two counts of delivering marijuana and two counts of money laundering.  See Tenn. Code Ann. § 39-14-903(c)(1) (2006); Tenn. Code Ann. § 39-17-417(a)(2) (2006 & Supp. 2008).  The Defendant challenged whether the evidence supported his money laundering convictions, whether those convictions violated double jeopardy protections, and whether the money laundering statute was unconstitutionally vague.  The trial court rejected the Defendant’s challenges, and the Court of Criminal Appeals affirmed the trial court’s judgments.  We hold that the evidence supporting one of the money laundering convictions was legally sufficient, because the proof supported an inference that the Defendant purchased marijuana with the proceeds he had received with the intent to promote the carrying on of the sale of marijuana.  With respect to the second money laundering conviction, we hold that the evidence was insufficient, because the proof showed only that the Defendant received payment for drugs he had fronted.  We further hold that the Defendant’s punishment for both delivery of marijuana and money laundering does not violate double jeopardy protections and that the money laundering statute is not unconstitutionally vague by virtue of its use of the undefined phrase “carrying on.”  Accordingly, we affirm in part and reverse in part the decision of the Court of Criminal Appeals.

Davidson County Supreme Court 01/14/21
State of Tennessee v. Robert Collier
W2019-01985-CCA-R3-CD

On July 12, 2019, Defendant-Appellant, Robert Collier, entered a guilty plea to criminal attempt aggravated sexual battery and indecent exposure, for which he received an effective sentence of seven years, eleven months, and twenty-nine days, all of which was to be served on supervised probation. Tenn. Code Ann. §§ 39-12-101, 39-13-504 (2019). As part of his sentence, the Defendant was also ordered to register as a violent sex offender and placed on community supervision for life. Tenn. Code Ann. § 39-13-524 (2014). Within three months, on October 15, 2019, the trial court revoked the Defendant’s supervised probation based on a violation of Tennessee Code Annotated section 40-39-211(d)(1)(B) (2019), which restricts movement of violent sex offenders, and ordered the Defendant to serve the original sentence in the Tennessee Department of Correction. The Defendant now appeals the order of the trial court arguing that subsection (d)(1)(B) is unconstitutional in violation of the Due Process Clause of the Fourteenth Amendment to the United States Constitution because certain terms including “playground,” “any other specific or legitimate reason,” “stand,” “sit idly,” and “remain” are not defined and ambiguous.” He additionally argues that subsection (d)(1)(B) is overbroad in violation of his First Amendment rights because (1) it applies to all sex offenders even if the offense did not involve a child victim; and (2) the term “playground” can include a church, an offender’s front yard, and places where other adults are present. Following our review, we affirm the judgment of the trial court.

Shelby County Court of Criminal Appeals 01/14/21
Fatma Adel Sekik v. Nehad Abdelnabi et al.
E2019-01302-COA-R3-CV

In this divorce appeal, Husband challenges the court’s failure to grant a continuance, the child support and alimony obligation imposed, and certain provisions of the parenting plan prohibiting contact with his children and revoking the parental rights set forth in Tennessee Code Annotated section 36-6-101(a)(3)(B). This proceeding also involved allegations of a conspiracy to defraud Wife of funds resulting from a sale of marital property in Gaza during the pendency of the divorce by Husband, his brother, and his brother’s wife; those nonspousal parties challenge the court’s jurisdiction over them and over the property in Gaza, as well as the court’s valuation of that property. They also challenge the court’s rulings that they engaged in a civil conspiracy and whether the judgment imposed against them is supported by the pleadings and the evidence. Upon our review of the issues raised, we discern no reversible error in the rulings of the court and accordingly affirm it in all respects.

Knox County Court of Appeals 01/13/21
Katrina Walker d/b/a Rainbow Kidz Child Care Center v. Tennessee Department of Human Services
W2019-01829-COA-R3-CV

In this Opinion, we are tasked with reviewing two separate cases concerning the State’s oversight of a child care center in Memphis. Somewhat uniquely, these cases were adjudicated under a single docket number in the Shelby County Chancery Court and were appealed to this Court in that posture. One of the cases, which concerns a petition for a writ of mandamus, was originally filed in the Davidson County Chancery Court and was subsequently transferred to the Shelby County Chancery Court. The second case involves judicial review under the Uniform Administrative Procedures Act. As to the mandamus case at issue, we conclude that venue lies only in Davidson County and, therefore, the trial court lacked subject matter jurisdiction to enter relief. Accordingly, that judgment is vacated, and we direct that the case be transferred back to the Davidson County Chancery Court. As to the case for judicial review, we conclude that the decision of the hearing officer was supported by substantial and material evidence and therefore reverse the trial court and remand for the entry of an order reinstating the hearing officer’s decision.

Shelby County Court of Appeals 01/13/21
State of Tennessee v. Coy McKaughan
W2018-01035-CCA-R3-PC

The Petitioner, Coy McKaughan, filed a post-conviction petition in the Shelby County Criminal Court seeking relief from his conviction of aggravated sexual battery and accompanying twelve-year sentence in the Tennessee Department of Correction. The postconviction court denied the petition, and the Petitioner appeals. On appeal, the Petitioner contends that (1) his trial counsel was ineffective, (2) his appellate counsel was ineffective, (3) his due process rights were violated by the State’s withholding evidence in violation of Brady v. Maryland, (4) his due process rights were violated by the State’s assembling a “rigged grand jury foreperson,” (5) the State violated his rights under the Fourth and Fourteenth Amendments of the United States Constitution and article I, section 7 of the Tennessee Constitution, and (6) he was denied his constitutional right to a “full and fair” post-conviction hearing. Upon review, we affirm the judgment of the post-conviction court.

Shelby County Court of Criminal Appeals 01/13/21
State of Tennessee v. Milton Simpson
W2019-00860-CCA-R3-CD

The Defendant, Milton Simpson, appeals as of right from the Shelby County Criminal Court’s order revoking his probation and imposing an effective ten-year sentence in confinement. On appeal, the Defendant contends that (1) the evidence was insufficient to establish that he violated the terms of his probation by breaking the law and that (2) his right of confrontation was violated when a court liaison testified in lieu of his probation officer and when a certified copy of an indictment was introduced as evidence. Following our review, we affirm.

Shelby County Court of Criminal Appeals 01/13/21
IN RE ELLA H.
M2020-00639-COA-R3-PT

In this termination of parental rights case, Appellants Mother and Stepfather appeal the trial court’s finding that termination of Father’s parental rights was not in the Child’s best interest. Appellee Father appeals the trial court’s finding that he abandoned the Child by willful failure to visit and willful failure to support. Upon review, we conclude that Father abandoned the Child by willful failure to visit and support. Because the record supports the conclusion that termination of Father’s parental rights is in the Child’s best interest, we reverse the trial court as to this issue, and we remand for entry of an order terminating Father’s parental rights.

DeKalb County Court of Appeals 01/13/21
State of Tennessee v. Phillip Harvey Wallace
E2020-00532-CCA-R3-CD

The defendant, Phillip Harvey Wallace, appeals the sentencing decision of the trial court that followed the revocation of his probation in case number 5263 and his pleading guilty in case number 5376, arguing that the trial court erred by failing to consider a community corrections placement and by ordering that the 12-year sentence imposed in case number 5376 be served consecutively to the remainder of the two-year sentence in case number 5263. Discerning no error, we affirm.

Union County Court of Criminal Appeals 01/12/21
State of Tennessee v. John William Anderson
E2019-01156-CCA-R3-CD

The defendant, John William Anderson, appeals his Sullivan County Criminal Court jury convictions of attempted theft of property valued at $10,000 or more but less than $60,000 and criminal simulation. He challenges the sufficiency of the convicting evidence and the propriety of the sentencing decision of the trial court. The evidence was sufficient to support the convictions, but the trial court erred by imposing a sentence in the absence of a presentence report. Consequently, we affirm the defendant’s convictions but reverse the sentencing decision of the trial court and remand the case to the trial court for a new sentencing hearing.

Sullivan County Court of Criminal Appeals 01/12/21
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, but remand the case for a new sentencing hearing as to Counts 4 and 5 to reflect the appropriate felony classification for each offense and for entry of new sentences for each conviction.

Shelby County Court of Criminal Appeals 01/12/21
State of Tennessee v. Robert Earl Grady, Jr.
W2019-01808-CCA-R3-CD

The defendant, Robert Earl Grady, Jr., pleaded guilty to two counts of felon in possession of a firearm for which he received consecutive twelve-year sentences for an effective sentence of twenty-four years’ confinement. On appeal, the defendant contends the trial court erred by imposing consecutive terms. Upon our review of the record, the applicable law, and the arguments of the parties, we affirm the judgments of the trial court.

Madison County Court of Criminal Appeals 01/12/21
Joshua Michael Stewart v. State of Tennessee
E2020-00150-CCA-R3-PC

The petitioner, Joshua Michael Stewart, appeals the denial of his petition for post-conviction relief, which petition challenged his 2017 Knox County Criminal Court jury convictions of rape of a child and aggravated sexual battery. He argues that he was deprived of the effective assistance of counsel. Discerning no error, we affirm.

Knox County Court of Criminal Appeals 01/11/21
State of Tennessee v. Jeremy Lee Fleming
M2019-00573-CCA-R3-CD

The Defendant, Jeremy Lee Fleming, was convicted by a Bedford County Circuit Court jury of first degree premeditated murder, first degree felony murder in the perpetration of a theft or arson, arson, and theft of property valued at $1000 or more but less than $10,000. The trial court merged the first degree murder convictions and imposed a life sentence. The court sentenced the Defendant to fifteen years for arson and to twelve years for theft, as a Range III, persistent offender, and the court imposed the arson and theft sentences concurrent to each other but consecutive to the life sentence, for an effective sentence of life plus fifteen years. On appeal, the Defendant contends that the evidence is insufficient to support his convictions and that the trial court erred in imposing consecutive sentencing. We affirm the first degree murder and arson judgments, but we modify the judgment for theft to reflect a sentence of eleven months, twenty-nine days.

Bedford County Court of Criminal Appeals 01/08/21
Kevin Arnold, Et Al. v. Beatrice Fowler
M2020-00608-COA-R3-CV

This is an action to set aside a quitclaim deed. The sole issue on appeal is whether the grantor delivered the deed to the grantee with the intention that it be an effective conveyance. After the grantor signed a quitclaim deed transferring title to a 42-acre tract to the grantee, the grantor’s mother, the grantee took possession of the deed. Later that day, the deed was placed in a lockbox maintained for the grantee’s benefit but co-owned by the grantor and her sister. Approximately three years later, while the deed remained in the lockbox, the grantor died. Shortly thereafter, the mother instructed the surviving daughter to bring the deed to her, which she did, and the mother recorded the deed. Upon learning of the recording of the deed, the grantor’s husband and children commenced this action to set aside the deed for failure of delivery arguing the deed remained in the grantor’s possession and control from the time she executed it until her death. Following a bench trial, the court found that the grantor delivered the deed to her mother with the intention that it be an effective conveyance and held that the conveyance was valid. We affirm. 

Franklin County Court of Appeals 01/08/21
In Re Katelynn S. Et Al.
M2020-00606-COA-R3-PT

The Tennessee Department of Children’s Services filed a petition to terminate a mother’s parental rights based on abandonment by failure to provide a suitable home; substantial noncompliance with permanency plans; failure to remedy persistent conditions; and failure to manifest an ability and willingness to assume custody of the child. The trial court granted the petition, finding that the Department proved all alleged grounds by clear and convincing evidence and that terminating the mother’s parental rights was in the best interests of the child. We affirm.

Davidson County Court of Appeals 01/08/21
Tywan Montrease Sykes v. State of Tennessee
E2019-02024-CCA-R3-PC

The Petitioner, Tywan Montrease Sykes, appeals from the Blount County Circuit Court’s order summarily dismissing his petition for post-conviction relief as untimely and as a second impermissible petition. On appeal, the Petitioner argues that due process requires tolling of the one-year limitations period, that he should have been given an evidentiary hearing to present additional proof of tolling, and that his first petition was not resolved on the merits. Following our review, we affirm the judgment of the post-conviction court summarily dismissing the petition as untimely.

Blount County Court of Criminal Appeals 01/08/21
State of Tennessee v. Adrian Waite
E2019-02017-CCA-R3-CD

The Defendant appeals as of right from the Hamilton County Criminal Court’s revocation of his probation and reinstatement of the remainder of his three-year sentence for one count each of theft of property valued at more than $1,000 but less than $2,500 and forgery in the same amount. On appeal, the Defendant asserts that the trial court abused its discretion by revoking his probation because: (1) the Defendant remained actively employed and made efforts to contact his probation officer; (2) the Defendant’s probation revocation “robbed victims of owed restitution and imposed an unnecessary financial burden upon the state’s taxpayers”; (3) the Defendant’s probation revocation “runs contrary to the Governor’s stated desire to use alternatives to incarceration for low-level, nonviolent offenders”; and (4) the Defendant’s probation revocation does “not reflect the trial court’s expectation that [he] would be released soon after his revocation hearing.” Following our review, we affirm the judgment of the trial court.

Hamilton County Court of Criminal Appeals 01/08/21
State of Tennessee v. James Howard Theus, III
W2020-00160-CCA-R3-CD

James Howard Theus, III, Defendant, was indicted for four counts of violating the sex offender registry. He pled guilty to the charges as stated in the indictment with an agreed upon sentence of three years with the manner of service of the sentence to be determined by the trial court after a sentencing hearing. The trial court denied alternative sentencing, ordering Defendant to serve his sentence in incarceration. Defendant appeals, arguing that the trial court abused its discretion. After a review, we determine that the trial court did not abuse its discretion.

Madison County Court of Criminal Appeals 01/08/21