Appellate Court Opinions

Format: 10/21/2021
Format: 10/21/2021
State of Tennessee v. Kavasia S. Bonds and Charles Allen Jones
M2020-00323-CCA-R3-CD

Defendants, Kavasia S. Bonds and Charles Allen Jones, along with a co-defendant Brian Davis, were indicted by the Davidson County Grand Jury for aggravated assault while acting in concert with two or more other persons. Following a jury trial, Defendants Bonds and Jones were convicted as charged, and the jury was unable to reach a unanimous verdict as to Defendant Davis. For their convictions, Defendant Bonds was sentenced to 16 years’ incarceration, and Defendant Jones was sentenced to 14 years. In this appeal as of right, Defendants Bonds and Jones both challenge the sufficiency of the convicting evidence. Defendant Bonds also asserts that the trial court erred by admitting into evidence a photograph of the victim’s eye and that the prosecutor improperly commented on Defendant Bonds’ silence at trial during closing arguments. Having reviewed the entire record and the briefs of the parties, we find no error and affirm the judgments of the trial court.

Davidson County Court of Criminal Appeals 08/23/21
State of Tennessee v. Devin L. Legon
M2020-00866-CCA-R3-CD
The Defendant, Devin L. Legon, pleaded guilty to conspiracy to commit theft of property valued over $60,000, aggravated burglary, and theft of property valued over $60,000. He agreed to pay $60,000 in restitution and to serve an effective ten-year sentence on probation. A revocation warrant was issued, and following a hearing, the trial court revoked the Defendant’s probation and ordered him to serve his sentence in confinement. On appeal, the Defendant contends that the trial court abused its discretion by ordering him to serve his sentence in confinement. Following our review, we affirm the judgment of the trial court pursuant to Rule 20 of the Rules of the Court of Criminal Appeals.
 
Giles County Court of Criminal Appeals 08/23/21
Jennifer Pallotta Gaby v. Tony Harold Gaby
E2020-00790-COA-R3-CV

In this post-divorce, child custody case, Appellant/Father filed a petition to modify the permanent parenting plan, seeking equal parenting time. Appellee/Mother opposed the petition. The trial court held that there had been a material change of circumstance and awarded Father additional parenting time, but not equal parenting time. On appeal, Father asserts that the trial court failed to consider the statutory best interest factors. Tenn. Code Ann. § 36-6-106(a). Although we leave undisturbed the portion of the trial court’s order concerning a material change of circumstance, the trial court’s failure to make best interest findings in compliance with Tennessee Rule of Civil Procedure 52.01 precludes any meaningful appellate review of that question. Accordingly, we vacate the order and remand for entry of an order that includes the required findings of fact and conclusions of law.

Greene County Court of Appeals 08/23/21
Rickie Heatherly v. Off The Wagon Tours, LLC
M2019-01582-COA-R3-CV

Relying on an inapplicable statute, the plaintiff asked the court to order a limited liability company to produce records for his inspection.  Claiming that the plaintiff had never been a member, the LLC denied that he was entitled to access its records.  After a bench trial, the court found that the plaintiff was a member and entitled to inspect and copy the records.  So the court ordered the LLC to allow the inspection and to pay the plaintiff’s costs and attorney’s fees incurred in filing suit.  The evidence does not preponderate against the court’s finding that the plaintiff was a member at formation of the LLC.  But because the relief was sought under an inapplicable statute, we vacate the inspection order and the award of attorney’s fees. 

Davidson County Court of Appeals 08/23/21
Rarity Bay Partners v. Rarity Bay Community Association Inc. Et Al.
E2021-00166-COA-R10-CV

Members of a nonprofit corporation sought to compel production of election records from the election of the corporation’s board of directors. The trial court ordered production of the records pursuant to a protective order. This Court granted the Rule 10 appeal to determine whether production of the election ballots is required under the Tennessee Nonprofit Corporation Act, whether the members have a privacy right with respect to their votes, and whether the trial court’s protective order protects that privacy right. We hold that production of the ballots is required under the statute, members have a limited privacy right with respect to their votes, and the protective order protects that right.

Monroe County Court of Appeals 08/23/21
State of Tennessee v. Gabriel Storm Davis
M2020-00431-CCA-R3-CD

Defendant, Gabriel Storm Davis, was convicted by a jury of one count of aggravated child abuse and one count of aggravated child neglect.  The trial court imposed an effective twenty-two-year sentence, as a Range I standard offender, to be served at 100 percent, by operation of law, in the Department of Correction.  On appeal, Defendant argues: that the evidence was insufficient to support his convictions; that the State’s election of offenses was insufficient to ensure a unanimous verdict; and that the trial court erred by admitting the victim’s forensic interview into evidence.  Following our review of the entire record and the briefs of the parties, we affirm the judgments of the trial court.

Marshall County Court of Criminal Appeals 08/20/21
Karla Chase v. Ober Gatlinburg, Inc.
E2020-00649-COA-R3-CV

This action arises from a snowboarding accident at Defendant Ober Gatlinburg’s ski resort. Plaintiff Karla Chase, attempting to avoid a collision with another skier, crashed face-first into a 4x4 post supporting a warning fence marking the edge of the slope’s navigable terrain. She alleged that Defendant negligently created an unreasonably dangerous condition by not using rounded and/or padded fence posts. The jury returned a verdict finding Defendant not at fault. After returning the verdict form, one of the jurors requested and was allowed to read a statement saying, “we find the defendant not guilty. We, the jury, are in one accord that Ober and the ski industry should look into using materials for posts with rounded corners or more padding.” Plaintiff filed a motion for new trial, but died before the hearing and the trial court’s ruling denying the motion. Plaintiff’s counsel filed a notice of appeal in the deceased Plaintiff’s name. We hold that Plaintiff’s personal representative may be substituted for her on appeal pursuant to Tenn. R. App. P. 19(a) even though no motion for substitution was made, because Defendant did not request the trial court to dismiss the action pursuant to Tenn. R. Civ. P. 25.01. We affirm the trial court’s judgment approving the jury verdict in favor of Defendant.

Sevier County Court of Criminal Appeals 08/20/21
State of Tennessee v. Frank Layman Glavin
M2020-01125-CCA-R3-CO
Petitioner, Frank Layman Glavin, appeals the denial of his petition to expunge his evading arrest conviction claiming that the trial court misapplied the expunction statute. See T.C.A.§ 40-32-101(k)(Supp. 2020). We conclude that Petitioner does not meet the plain language requirements of section 40-32-101(k) of the Tennessee Code, and accordingly affirm the trial court’s order.
 
Bedford County Court of Criminal Appeals 08/20/21
Lola Bernice Robinson v. Leah M. Robinson Et Al.
E2021-00034-COA-R3-CV

This case involves a dispute over a parcel of real property. The appellant filed suit alleging fraudulent conveyance of the property. The trial court granted a judgment in favor of the appellee, finding that the appellant did not meet her burden of proof to establish fraud, undue influence, or lack of capacity. For the reasons stated herein, we affirm the trial court’s decision. Additionally, we award the appellee her attorney’s fees on appeal.

Washington County Court of Appeals 08/20/21
James Henry Matthew Owens v. Jessica Paige May
E2020-01322-COA-R3-JV

This is an appeal from the trial court’s entry of a permanent parenting plan involving one minor child. The trial court named the father primary residential parent of the minor child and entered a parenting plan awarding equal co-parenting time and ordering the child’s enrollment in the father’s school of choice. The mother appealed. Upon our review, we vacate the order of the trial court and remand for entry of sufficient findings of fact and conclusions of law to facilitate appellate review.

Claiborne County Court of Appeals 08/19/21
Lemaricus Davidson v. State of Tennessee
E2019-00541-CCA-R3-PD

The Petitioner, Lemaricus Davidson, was convicted in the Knox County Criminal Court of numerous offenses against the two victims, Christopher Newsom and Channon Christian, including multiple counts of first degree felony and premeditated murder, and the jury imposed sentences of death for each murder conviction. After this court and our supreme court affirmed the Petitioner’s convictions and sentences, he filed post-conviction and coram nobis petitions, seeking relief from those first degree murder convictions and death sentences. The post-conviction court found that trial counsel were deficient for not requesting a change of venue but that no prejudice resulted from trial counsel’s deficient performance and denied relief. The coram nobis court also denied relief. In this consolidated appeal, the Petitioner raises various issues, including that the post-conviction court erred by denying his request for expert services; that the post-conviction court erred by determining that a codefendant’s anticipated testimony at another codefendant’s upcoming trial was not relevant to the Petitioner’s claim for post-conviction relief; that trial counsel were ineffective because they failed to request an out-of-county jury, improperly handled voir dire, and failed to raise certain issues on direct appeal of his convictions; and that he is entitled to coram nobis relief because a codefendant’s new testimony may have led to a different verdict as to the first degree premeditated murders of the victims. Based upon our review of the oral arguments, the record, and the parties’ briefs, we conclude that the post-conviction court erroneously determined that a codefendant’s anticipated testimony at another codefendant’s upcoming trial was not relevant to the Petitioner’s claim for post-conviction relief because the testimony would have invalidated one of the four aggravating circumstances found by the jury to impose the Petitioner’s death sentence for Mr. Newsom. However, we also conclude that the error was harmless beyond a reasonable doubt. We agree with the post-conviction court that trial counsel were deficient for not requesting a change of venue and that the Petitioner has failed to demonstrate he was prejudiced by trial counsel’s deficient performance. Therefore, we affirm the denials of post-conviction and coram nobis relief.

Knox County Court of Criminal Appeals 08/19/21
Jarus Smith v. State of Tennessee
M2020-00816-CCA-R3-PC

The Petitioner, Jarus Smith, appeals as of right from the Hickman County Circuit Court’s denial of his petition for post-conviction relief, wherein he challenged his convictions for facilitation of attempted second degree murder, possession of contraband in a penal institution, and two counts of aggravated assault. On appeal, the Petitioner asserts that (1) he did not knowingly and intelligently waive his constitutional right to a twelve-person jury, and (2) he received the ineffective assistance of trial counsel relative to counsel’s advice about proceeding with an eleven-person jury. Following our review, we affirm the judgment of the post-conviction court.

Hickman County Court of Criminal Appeals 08/19/21
Darryl Robinson v. State of Tennessee
W2020-00942-CCA-R3-PC

The Petitioner, Darryl Robinson, appeals from the Shelby County Criminal Court’s denial of his petition for post-conviction relief, wherein he challenged his convictions for aggravated robbery and possession of a handgun by a convicted felon. See Tenn. Code Ann. §§ 39-13-402, -17-1307(c)(1). On appeal, the Petitioner submits that he received the ineffective assistance of counsel due to (1) trial counsel’s failure to object to and preserve for appeal references by a witness identifying the Petitioner at trial by his prejudicial nickname “Trigger Man”; and (2) trial counsel’s failure to object during closing argument to the State’s use of a “pink elephant” analogy, as well as the failure to preserve the issue in the motion for new trial. In addition, the Petitioner raises a stand-alone allegation of prosecutorial misconduct based upon the State’s closing argument. Having reviewed the entire record and the briefs of the parties, we are constrained to agree with the Petitioner that the post-conviction court failed to make sufficient findings of fact and conclusions of law to enable appellate review of all his claims. Accordingly, we reverse the judgment of the post-conviction court and remand this case for proceedings consistent with this opinion

Shelby County Court of Criminal Appeals 08/18/21
State of Tennessee v. Elvin Portillo
M2020-01179-CCA-R3-CD

Defendant, Elvin Portillo, entered into an agreement whereby he pled guilty to vehicular homicide by intoxication, leaving the scene of an accident with death and reckless endangerment.  Four remaining counts were dismissed.  In accordance with the plea agreement, the trial court held a sentencing hearing to determine the length and service manner of Defendant’s sentences.  After a sentencing hearing, Defendant received an effective sentence of 16 years.  In this appeal, Defendant asserts that the trial court erred in ordering consecutive sentencing.  Having reviewed the entire record and the briefs of the parties, we find no abuse of discretion and affirm the judgments of the trial court.  However, because the record does not contain judgment forms for the remaining counts, if these judgments do not exist, we remand to the trial court for entry of judgment forms to reflect dismissal of those counts. 

Davidson County Court of Criminal Appeals 08/18/21
Joseph Christopher Archer, Et Al. v. Ron Noonan
M2020-01266-COA-R3-CV

This case involves an action filed by homeowners against their contractor for breach of contract regarding the installation of a swimming pool.  The general sessions court entered judgment for plaintiffs. Defendant appealed to the circuit court which also entered judgment for the plaintiffs.  The defendant appeals.  We affirm.

Putnam County Court of Appeals 08/18/21
Alexis Stump v. Shirley Stinson
E2020-01139-COA-JV

This action was initiated by the mother’s filing of a petition for the return of custody of her minor child. The trial court granted the petition. The maternal grandmother moved to set aside the judgment. The court denied the motion by order and later entered an amended order, correcting errors. The mother appeals the final order. We dismiss the appeal.

Court of Appeals 08/18/21
In Re Tyler A.
E2021-00284-COA-R3-PT

This action involves the termination of a mother’s parental rights to her minor child. Following a bench trial, the trial court found that clear and convincing evidence existed to establish the following statutory grounds of termination: (1) abandonment for failure to establish a suitable home; (2) the persistence of conditions which led to removal; (3) substantial noncompliance with the permanency plan; (4) failure to manifest an ability and willingness to care for the child; and (5) a present mental condition affecting the mother’s ability to adequately parent. The court also found that termination was in the best interest of the child. We affirm the trial court.

Bradley County Court of Appeals 08/18/21
Donald Jones v. State of Tennessee
W2020-00421-CCA-R3-PC

The Petitioner, Donald Jones, was found guilty by a jury of first degree felony murder and especially aggravated burglary, and he received an effective sentence of life imprisonment plus thirty years. After this court affirmed the Petitioner’s convictions on direct appeal, he filed a petition for post-conviction relief contending that he received ineffective assistance of counsel when his counsel failed to locate and interview an alibi witness and failed to request an instruction on accomplice testimony. Following a hearing, the post-conviction court denied the petition. After review, we affirm the judgment of the post-conviction court.

Shelby County Court of Criminal Appeals 08/18/21
State of Tennessee v. William Darnell Richardson
M2020-00286-CCA-R3-CD

The defendant, William Darnell Richardson, appeals his Lawrence County Circuit Court jury convictions of possession of 0.5 grams or more of a Schedule II controlled substance with intent to sell, simple possession of a Schedule IV controlled substance, possession of drug paraphernalia, and driving on a revoked or suspended license, arguing that he is entitled to plain error relief for inappropriate and prejudicial statements made by the prosecutor during closing arguments, that the trial court erred by admitting evidence contravening the rules of hearsay, and that the evidence was insufficient to support his conviction of possession of 0.5 grams or more of methamphetamine with intent to sell.  Because the trial court erred by admitting certain hearsay evidence, we reverse the defendant’s conviction for simple possession of Alprazolam and remand for a new trial on that charge.  Because the evidence was insufficient to sustain the defendant’s conviction of driving on a revoked or suspended license, we vacate that conviction and dismiss that charge.  We affirm the defendant’s conviction of possession of methamphetamine with intent to sell and find no plain error in the prosecutor’s closing argument.

Lawrence County Court of Criminal Appeals 08/17/21
Donald Eugene Winder, III v. Kara Elizabeth Winder
E2021-00490-COA-R3-CV

A review of the record on appeal reveals that the order appealed from does not constitute a final appealable judgment. As such, this Court lacks jurisdiction to consider this appeal.

Meigs County Court of Appeals 08/17/21
State of Tennessee v. James Durand Favors, III
E2020-01166-CCA-R3-CD

The Defendant-Appellant, James Durand Favors, was charged by information with four counts of aggravated domestic assault. He entered open guilty to pleas to all four counts. Following a sentencing hearing, the trial court sentenced the Defendant as a Range I, standard offender to a total effect sentence of fifteen years’ incarceration to run consecutively to his sentence in two prior cases. The sole issue raised on appeal is whether the trial court abused its discretion in denying the Defendant alternative sentencing. Upon review, we affirm the judgment of the trial court.

Hamilton County Court of Criminal Appeals 08/17/21
State of Tennessee v. Stephen Maurice Mobley
E2020-00234-CCA-R3-CD

Following a jury trial, the Defendant, Stephen Maurice Mobley, was convicted of two counts of first degree premeditated murder and one count each of attempted first degree murder, aggravated assault, and employing a firearm during the commission of a dangerous felony. The trial court merged the attempted first degree murder and aggravated assault convictions and imposed an effective sentence of life imprisonment plus twenty-six years. On appeal, the Defendant contends that (1) the evidence is insufficient to support the convictions; (2) the trial court improperly denied the Defendant’s challenge to the State’s striking a prospective juror as violating Batson v. Kentucky, 476 U.S. 79 (1986); (3) a juror failed to disclose her prior knowledge of the Defendant during voir dire and provided extraneous information to other jurors in violation of the Defendant’s right to a fair trial; (4) the trial court erred in admitting hearsay statements under the excited utterance hearsay exception; and (5) the trial court improperly admitted evidence that the Defendant had been placed on a most wanted list by law enforcement prior to his arrest. We remand the case to the trial court for a hearing as to whether the State struck a potential juror in violation of Batson. We conclude that none of the other issues raised by the Defendant warrant relief.

Hamilton County Court of Criminal Appeals 08/16/21
In Re: Loring Edwin Justice
E2020-01089-SC-R3-BP

An attorney who had been disbarred was assessed costs associated with his disbarment proceedings pursuant to pre-2014 Tennessee Supreme Court Rule 9, section 24.3. The attorney timely filed a petition seeking relief from costs, and a panel of the Board of Professional Responsibility conducted a hearing on the petition. The panel reduced the costs for 11.2 hours of disciplinary counsel time and otherwise denied the petition. The attorney has appealed to this Court, as permitted by pre-2014 Rule 9, section 24.3. Having carefully and thoroughly considered the record and each of the issues raised, we affirm the panel’s decision.

Supreme Court 08/16/21
State of Tennessee v. Caleb Josiah Cannon
M2019-01629-CCA-R3-CD

A Davidson County jury convicted the Defendant, Caleb Josiah Cannon, of premeditated firstdegree murder, and the trial court sentenced him to life in prison. On appeal, the Defendant contends that: (1) the trial court erred when it denied his motion in limine to exclude evidence that a human remains detection dog alerted to the presence of the scent of human remains in the Defendant’s home and car; (2) the evidence is insufficient to prove that the victim was deceased or that the Defendant caused her death; (3) the trial court erred when it admitted testimony from a witness identifying him in court because such testimony was tainted; and (4) the trial court erred when it excluded defense proof. After review, we affirm the judgment of the trial court.

Davidson County Court of Criminal Appeals 08/16/21
In Re Payton G. Et Al.
E2020-00992-COA-R3-PT

The mother of two minor children appeals the termination of her parental rights. The trial court terminated the mother’s parental rights upon finding that the Department of Children’s Services established three grounds for termination: (1) abandonment prior to incarceration that exhibits wanton disregard for the welfare of the children; (2) substantial noncompliance with a permanency plan; and (3) failure to manifest an ability or willingness to assume custody, and that termination was in the best interest of the children. This appeal followed. We affirm.

Hamilton County Court of Criminal Appeals 08/16/21