Court of Criminal Appeals Opinions

Format: 09/27/2016
Format: 09/27/2016
State of Tennessee v. Christopher Demotto Linsey
M2015-01851-CCA-R3-CD
Authoring Judge: Judge J. Ross Dyer
Trial Court Judge: Judge William R. Goodman, III

The defendant, Christopher Demotto Linsey, was indicted for tampering with evidence, possession of cocaine with intent to sell or deliver, simple possession of marijuana, possession of heroin, and simple possession of alprazolam. After trial, a jury found the defendant guilty of felony tampering with evidence and misdemeanor simple possession of marijuana, for which he received an effective twelve-year sentence. On appeal, the defendant argues the evidence was insufficient to support the trial court’s decision to deny his request for a renunciation jury instruction with respect to the tampering with evidence charge. The State concedes the evidence presented at trial was insufficient to support the defendant’s tampering with evidence conviction and asserts the jury instruction question has been pretermitted. Upon review, we agree with the State. We affirm the defendant’s conviction for simple possession of marijuana and reverse and vacate the defendant’s conviction for tampering with evidence.

Montgomery County Court of Criminal Appeals 09/27/16
State of Tennessee v. Johnny Malcolm Vinson
M2016-00068-CCA-R3-CD
Authoring Judge: Judge J. Ross Dyer
Trial Court Judge: Judge Mark J. Fishburn

The defendant, Johnny Malcolm Vinson, was convicted of aggravated assault in violation of an active order of protection pursuant to Tenn. Code Ann. § 39-13-102(c). On appeal, the defendant challenges the sufficiency of the evidence supporting his conviction arguing that conflicting testimony exists regarding his use of a deadly weapon and that the State failed to prove he acted with intent. After our review, we conclude that the defendant’s arguments are without merit. Accordingly, we affirm the judgment of the trial court.

Davidson County Court of Criminal Appeals 09/27/16
State of Tennessee v. Michael D. Hernandez - concurring and dissenting
E2015-01365-CCA-R3-CD
Authoring Judge: Judge John Everett Williams
Trial Court Judge: Judge Donald R. Elledge
I agree with the majority's conclusion upholding the Defendant's conviction for rape of a child and his twenty-five-year sentence. Moreover, while I agree with the majority's conclusion that Ms. Powell's notes do not qualify as a “statement” of the victim pursuant to Tennessee Rule of Criminal Procedure 26.2, I write separately to address the issue of whether Ms. Powell's notes qualify as a “statement” of Ms. Powell as the testifying witness pursuant to Rule 26.2.
 
Anderson County Court of Criminal Appeals 09/27/16
State of Tennessee v. Michael D. Hernandez
E2015-01365-CCA-R3-CD
Authoring Judge: Judge Norma McGee Ogle
Trial Court Judge: Judge Donald R. Elledge
An Anderson County Circuit Court Jury convicted the appellant, Michael D. Hernandez, of one count of rape of a child, and he received a twenty-five-year sentence to be served at 100%. On appeal, the appellant contends that the evidence is insufficient to support the conviction; that the trial court erred by refusing to give him access to the victim's statement in an investigator's notes; that the trial court erred by failing to conduct an in camera review of the notes for exculpatory material; that the trial court erred by denying his motion to suppress evidence found in his home; that the trial court erred by defining “on or about” for the jury; that the trial court erred by giving sequential jury instructions; and that cumulative error warrants a new trial. Based upon the oral arguments, the record, and the parties' briefs, we affirm the judgment of the trial court.
 
Anderson County Court of Criminal Appeals 09/27/16
State of Tennessee v. James Walter Morgan
E2015-01959-CCA-R3-CD
Authoring Judge: Judge Robert H. Montgomery, Jr.
Trial Court Judge: Judge Alex E. Pearson

The Defendant, James Walter Morgan, was found guilty by a Hamblen County Criminal Court jury of theft of property valued at $500 or less, a Class A misdemeanor. See T.C.A. § 39-14-103 (2014). The trial court sentenced the Defendant to eleven months, twenty-nine days of supervised probation. On appeal, the Defendant contends that the trial court erred in denying his request for judicial diversion. We affirm the judgment of the trial court.

Hamblen County Court of Criminal Appeals 09/27/16
State of Tennessee v. Jeremy Jones
W2015-01528-CCA-R3-CD
Authoring Judge: Judge Alan E. Glenn
Trial Court Judge: Judge Glenn Wright

The defendant, Jeremy Jones, was convicted by a Shelby County Criminal Court jury of attempted first degree murder, a Class A felony; aggravated assault, a Class C felony; employment of a firearm during the commission of a dangerous felony, a Class C felony; and convicted felon in possession of a firearm, a Class C felony. The trial court imposed an effective term of twenty-five years in the Department of Correction. On appeal, he argues: (1) the evidence is insufficient to sustain his convictions; (2) the trial court failed to ensure an impartial jury venire; and (3) he is entitled to relief due to cumulative error at trial. After review, we affirm the judgments of the trial court. However, we remand for entry of a corrected judgment in Count 3 to check the box indicating that the defendant was found guilty in that count.

Shelby County Court of Criminal Appeals 09/26/16
State of Tennessee v. Oscar C. Wells
W2016-00170-CCA-R3-CD
Authoring Judge: Judge James Curwood Witt, Jr.
Trial Court Judge: Judge James C. Beasley, Jr.

The defendant, Oscar C. Wells, appeals the summary dismissal of his motion, filed pursuant to Tennessee Rule of Criminal Procedure 36.1, to correct what he believes to be an illegal sentence imposed for his 2002 Shelby County Criminal Court jury conviction of first degree murder. Discerning no error, we affirm.

Shelby County Court of Criminal Appeals 09/26/16
State of Tennessee v. Guy B. Bernal
M2015-01489-CCA-R3-CD
Authoring Judge: Judge Robert W. Wedemeyer
Trial Court Judge: Judge Stella L. Hargrove

A Maury County jury found the Defendant, Guy B. Bernal, guilty of rape.  The trial court sentenced the Defendant as a Range I offender to twelve years in the Tennessee Department of Correction.  On appeal, the Defendant asserts that: (1) his right against self-incrimination was violated when the trial court did not conduct a proper Momon hearing; (2) the convicting evidence is insufficient; and (3) his twelve-year sentence is excessive.  After a thorough review of the record and applicable law, we affirm the trial court’s judgment.

Maury County Court of Criminal Appeals 09/26/16
State of Tennessee v. Roy Daniel Mayo, II
M2015-02267-CCA-R3-CD
Authoring Judge: Judge John Everett Williams
Trial Court Judge: Judge Suzanne Lockert-Mash

A jury found the Defendant, Roy Daniel Mayo II, guilty of one count of attempted burglary, a Class A misdemeanor; one count of possession of burglary tools, a Class A misdemeanor; and one count of evading arrest while operating a motor vehicle, a Class E felony.  The trial court imposed an aggregate sentence of six years in prison.  The Defendant does not challenge his misdemeanor convictions.  On appeal, he asserts that his evading arrest conviction should be reversed because the trial court’s jury instructions did not require the jury to find that the Defendant’s flight took place while he was operating the motor vehicle.  Given the facts surrounding the Defendant’s conviction, in particular the proof regarding whether his flight was by means of a vehicle or on foot, we conclude that the jury instructions failed to fairly submit the legal issues and misled the jury as to the applicable law and that the error was not harmless.  We accordingly reverse the Defendant’s felony evading arrest conviction, and we remand for new trial on that charge.

Cheatham County Court of Criminal Appeals 09/26/16
State of Tennessee v. James Shettles
W2015-01529-CCA-R3-CD
Authoring Judge: Judge Robert H. Montgomery, Jr.
Trial Court Judge: Judge Glenn Wright

The Defendant, James Shettles, was convicted by a Shelby County Criminal Court jury of aggravated assault, a Class C felony, for which he is serving a four-year workhouse sentence on probation. See T.C.A. § 30-13-102 (Supp. 2012) (amended 2013). On appeal he contends that: (1) the evidence is insufficient to support his conviction, (2) the trial court erred in admitting a recording of a 9-1-1 call, and (3) the trial court erred in failing to remove a juror. We affirm the judgment of the trial court.

Shelby County Court of Criminal Appeals 09/23/16
State of Tennessee v. Timothy Lewayne Morton
M2015-02279-CCA-R3-CD
Authoring Judge: Judge John Everett Williams
Trial Court Judge: Judge Dee David Gay

The trial court found that the Defendant, Timothy Lewayne Morton, violated the conditions of his two-year probation when he was arrested for disorderly conduct and public intoxication.  The Defendant pled guilty to the disorderly conduct charge prior to the revocation hearing.  The Defendant asserts that there was insufficient evidence to support the finding of a violation.  After a thorough review of the record, we affirm the judgment of the trial court.

Sumner County Court of Criminal Appeals 09/22/16
Tina Garrett v. State of Tennessee
M2015-01659-CCA-R3-PC
Authoring Judge: Judge Robert L. Holloway, Jr.
Trial Court Judge: Judge E. Shayne Sexton

In June 2013, the Petitioner, Tina Garrett, entered a “best interests” guilty plea to first degree murder in exchange for a life sentence.  She subsequently filed a petition for post-conviction relief alleging, among other things, that she received ineffective assistance of counsel and that her plea was unknowing and involuntary.  Following a hearing on the petition, the post-conviction court denied relief.  After a thorough review, we affirm the judgment of the post-conviction court.

Fentress County Court of Criminal Appeals 09/22/16
State of Tennessee v. Zachary David Strickland
M2015-02118-CCA-R3-CD
Authoring Judge: Judge Timothy L. Easter
Trial Court Judge: Judge Forest A. Durard, Jr.

Defendant, Zachary David Strickland, was convicted of initiation of a process intended to result in the manufacture of methamphetamine and sentenced to ten years of incarceration.  After the denial of a motion for new trial, Defendant filed an untimely notice of appeal.  In the interests of justice, we waive the timely filing of the notice of appeal.  However, upon review of the evidence presented at trial, we determine that the evidence was sufficient to support the conviction.  Consequently, the judgment of the circuit court is affirmed.

Bedford County Court of Criminal Appeals 09/22/16
Anthony Dewight Washington v. State of Tennessee
M2015-02309-CCA-R3-PC
Authoring Judge: Judge Robert L. Holloway, Jr.
Trial Court Judge: Judge Cheryl A. Blackburn

Anthony Dewight Washington (“the Petitioner”) appeals the post-conviction court’s denial of his petition for post-conviction relief.  The Petitioner argues that trial counsel’s performance was deficient in failing to file a motion asking for the recusal of the trial judge, failing to file a motion to suppress evidence from a search of the Petitioner’s home, and failing to communicate with the Petitioner, investigate witnesses, and develop a trial strategy or defense.  The Petitioner argues that counsel’s deficiency prejudiced him because, but for the deficiencies, he would have accepted the State’s plea offer instead of proceeding to trial.  Upon thorough review of the appellate record and the applicable law, we affirm the judgment of the post-conviction court.

Davidson County Court of Criminal Appeals 09/22/16
State of Tennessee v. Rhonda Sowell
W2015-01093-CCA-R3-CD
Authoring Judge: Judge J. Ross Dyer
Trial Court Judge: Judge Kyle Atkins

The defendant, Rhonda Sowell, pled guilty in the Circuit Court for Madison County to driving under the influence (“DUI”) (Count 1), driving under the influence with a with a blood alcohol concentration of .08% or more (“DUI per se”) (Count 2), second offense DUI (Count 3), and violation of the light law pursuant to Tenn. Code Ann. § 55-9-402 (Count 4). Prior to pleading guilty, the defendant filed two suppression motions challenging the basis for the initial stop and the evidence collected subsequent to the stop. After the trial court denied both motions, the defendant pled guilty to all charges reserving two certified questions of law concerning the constitutionality of the traffic stop and the evidence obtained as a result. Upon review of the record, we hold that the traffic stop of the defendant was constitutional, supported by both reasonable suspicion and probable cause. Accordingly, we affirm the trial court's denial of the defendant's suppression motions. However, we remand the case to the trial court for entry of separate judgment forms for each conviction, including those that were merged, in light of our Supreme Court's order in State v. Marquize Berry, No. W2014-00785-SC-R11-CD, slip op. at 5 (Tenn. Nov. 16, 2015) (order granting Tenn. R. App. P. 11 application for appeal).

Madison County Court of Criminal Appeals 09/21/16
Kenneth Lewis v. State of Tennessee
W2015-01249-CCA-R3-PC
Authoring Judge: Judge John Everett Williams
Trial Court Judge: Judge J. Robert Carter, Jr.

The petitioner, Kenneth Lewis, appeals the denial of his petition for post-conviction relief. The petitioner is currently serving a thirty-five-year sentence for second degree murder. On appeal, the petitioner contends that he should have been granted relief because: (1) he was denied his rights to the effective assistance of counsel; (2) the trial court erred in failing to grant his request for a transcript of the jury selection or to allow introduction of notes detailing reasons certain jurors were struck from the panel; and (3) that the law should be changed to allow funding for expert witnesses in non-capital post-conviction cases. Following review of the record, we affirm the denial of post-conviction relief.

Shelby County Court of Criminal Appeals 09/21/16
State of Tennessee v. Antwion Dowdy
W2015-02342-CCA-R3-CD
Authoring Judge: Judge Robert H. Montgomery, Jr.
Trial Court Judge: Judge John W. Campbell

The Defendant, Antwion Dowdy, was convicted by a Shelby County Criminal Court jury of first degree premeditated murder and four counts of aggravated assault, Class C felonies. See T.C.A. §§ 39-13-202 (2014), 39-13-102 (2014) (amended 2015). The trial court sentenced the Defendant to concurrent sentences of life imprisonment for first degree murder and five years for each aggravated assault. On appeal, he contends that the evidence is insufficient to support his convictions. We affirm the judgments of the trial court.

Shelby County Court of Criminal Appeals 09/21/16
State of Tennessee v. Robert C. Clanton
M2015-02438-CCA-R3-CD
Authoring Judge: Judge Timothy L. Easter
Trial Court Judge: Judge Forest A. Durard, Jr.

Defendant, Robert Carlyle Clanton, was convicted by a Bedford County jury of ten drug-related offenses for the sale of methamphetamine to a confidential informant.  The trial court imposed a total effective sentence of twenty-three years and six months.  On appeal, Defendant’s sole issue is that the trial court imposed an excessively lengthy sentence.  Upon our review of the record, we affirm the judgment of the trial court.

Bedford County Court of Criminal Appeals 09/21/16
State of Tennessee v. Lizandro Guevara
M2015-01719-CCA-R3-CD
Authoring Judge: Judge Timothy L. Easter
Trial Court Judge: Judge Steve R. Dozier

Defendant, Lizandro Guevara, appeals his eight convictions for aggravated sexual battery and four convictions for rape of a child.  He argues that the evidence is insufficient to support the convictions.  Because the evidence within the record is sufficient for a rational jury to conclude beyond a reasonable doubt that Defendant committed the offenses for which he was convicted, the judgments of the trial court are affirmed.

Davidson County Court of Criminal Appeals 09/21/16
State of Tennessee v. Devontavious Bryant
E2015-01187-CCA-R3-CD
Authoring Judge: Judge Robert L. Holloway, Jr.
Trial Court Judge: Judge Don W. Poole

The Defendant, Devontavious Bryant, along with co-defendant Deacon Williams, was indicted with one count of aggravated rape, one count of aggravated robbery, and one count of aggravated assault. Prior to trial, the State amended the aggravated robbery charge to robbery and dismissed the aggravated assault charge. The Defendant was tried separately from Mr. Williams and convicted of aggravated rape and robbery. On appeal, the Defendant argues that: (1) the evidence collected from a warrantless search of his bedroom should have been suppressed; (2) the video recording of the victim's statement given minutes after the offense should have been suppressed under Tennessee Rule of Evidence 403; and (3) there was insufficient evidence to support his conviction for aggravated rape because his DNA was not found at the scene. Discerning no error, we affirm the judgments of the trial court.

Hamilton County Court of Criminal Appeals 09/21/16
Lavonta Laver Churchwell v. State of Tennessee
M2015-01567-CCA-R3-PC
Authoring Judge: Judge Norma McGee Ogle
Trial Court Judge: Judge Seth Norman

The Petitioner, Lavonta Laver Churchwell, appeals the Davidson County Criminal Court’s denial of his petition for post-conviction relief from his convictions of two counts of first degree felony murder, two counts of especially aggravated robbery, and two counts of criminally negligent homicide and resulting effective sentence of life in confinement.  On appeal, the Petitioner contends that he received the ineffective assistance of trial counsel.  Based upon the record and the parties’ briefs, we affirm the judgment of the post-conviction court.

Davidson County Court of Criminal Appeals 09/21/16
State of Tennessee v. Connie Khonsabanh Vongphakdy
M2015-01296-CCA-R3-CD
Authoring Judge: Judge Norma McGee Ogle
Trial Court Judge: Judge Royce Taylor

The Appellant, Connie Kohnsabanh Vongphakdy, pled guilty in the Rutherford County Circuit Court to one count of theft $60,000 or more but less than $250,000; four counts of theft of $10,000 or more but less than $60,000; and two counts of theft of $1,000 or more but less than $10,000.  Pursuant to the plea agreement, the Appellant received a total effective sentence of eight years.  After a sentencing hearing, the trial court denied alternative sentencing and ordered the Appellant to pay restitution in the amount of $178,300.  On appeal, the Appellant challenges the trial court’s denial of alternative sentencing.  The State concedes that the trial court did not consider the specific factors in Tennessee Code Annotated section 40-35-103 but contends that the trial court implicitly found that confinement was necessary to avoid depreciating the seriousness of the offense and to serve as a deterrent.  Upon review, we reverse the judgments of the trial court and and remand for resentencing.

Rutherford County Court of Criminal Appeals 09/21/16
State of Tennessee v. Shiema Moniqueke Reid
M2015-00434-CCA-R3-CD
Authoring Judge: Judge Norma McGee Ogle
Trial Court Judge: Judge Steve R. Dozier

A Davidson County Criminal Court Jury convicted the appellant, Shiema Moniqueke Reid, of perjury, a Class A misdemeanor, and the trial court sentenced her to eleven months, twenty-nine days to be served on supervised probation.  On appeal, the appellant contends that the evidence is insufficient to support the conviction.  Based upon the record and the parties’ briefs, we affirm the judgment of the trial court.

Davidson County Court of Criminal Appeals 09/21/16
State of Tennessee v. Zakkawanda Zawumba Moss a/k/a Face
M2014-00746-CCA-R3-CD
Authoring Judge: Judge Norma McGee Ogle
Trial Court Judge: Judge Forest A. Durard, Jr.

A Lincoln County Circuit Court Jury convicted the appellant, Zakkawanda Zawumba Moss, of six counts of first degree premeditated murder, and he received consecutive sentences of life in confinement.  On appeal, the appellant contends that the evidence is insufficient to support the convictions, that the trial court’s refusing to allow the jury to view a child witness’s video-recorded interview denied him of his right to due process, that the trial court improperly admitted the testimony of four witnesses into evidence, that the trial court should have granted his requests for a mistrial, that the trial court improperly admitted photographs into evidence that were overly prejudicial and cumulative, and that the trial court improperly instructed the jury.  Based upon the record and the parties’ briefs, we find no reversible error and affirm the judgments of the trial court.

Lincoln County Court of Criminal Appeals 09/21/16
State of Tennessee v. Kris Theotis Young
E2015-01908-CCA-R3-CD
Authoring Judge: Judge Robert H. Montgomery, Jr.
Trial Court Judge: Judge G. Scott Green
The Defendant, Kris Theotis Young, was convicted by a Knox County Criminal Court jury of especially aggravated kidnapping, a Class A felony; aggravated robbery, a Class B felony; and aggravated burglary, a Class C felony. See T.C.A. §§ 39-13-305 (2014) (especially aggravated kidnapping), 39-13-402 (2014) (aggravated robbery), 39-14-403 (2014) (aggravated burglary). In a previous appeal, the supreme court affirmed the aggravated robbery conviction but remanded the case for sentencing on the especially aggravated kidnapping and aggravated burglary convictions that the trial court had dismissed. Thereafter, the trial court sentenced the Defendant as a Range I, standard offender to twenty-two years' confinement for especially aggravated kidnapping and six years' confinement for aggravated burglary, to be served concurrently with each other and with the twelve-year sentence imposed previously for the aggravated robbery conviction. On appeal, the Defendant contends that the trial court erred in sentencing him to twenty-two years for especially aggravated kidnapping. We affirm the judgments of the trial court.
 
Knox County Court of Criminal Appeals 09/20/16