Court of Criminal Appeals Opinions

Format: 06/30/2016
Format: 06/30/2016
State of Tennessee v. William Jermaine Stripling - concurring
E2015-01554-CCA-R3-CD
Authoring Judge: Judge James Curwood Witt, Jr.
Trial Court Judge: Judge G. Scott Green
I concur in the majority opinion, but respectfully, I write separately to address the remand that the majority believes is mandated by the order filed and published by the supreme court in State v. Marquize Berry, No. W2014-00785-SC-R11-CD (Tenn. Nov. 16, 2015) (order).
 
Knox County Court of Criminal Appeals 06/16/16
State of Tennessee v. William Jermaine Stripling
E2015-01554-CCA-R3-CD
Authoring Judge: Judge Robert L. Holloway, Jr.
Trial Court Judge: Judge G. Scott Green

William Jermaine Stripling (“the Defendant”) was convicted of two counts of sale of less than .5 grams of cocaine in a drug-free zone and two counts of delivery of less than .5 grams of cocaine in a drug-free zone. His convictions merged, leaving him with one conviction for sale of less than .5 grams of cocaine in a drug-free zone. In a bifurcated proceeding, the Defendant's sentence was enhanced pursuant to the criminal gang offenses enhancement statute, Tennessee Code Annotated section 40-35-121. On appeal, the Defendant argues that the criminal gang offenses enhancement statute is facially unconstitutional. Specifically, the Defendant contends that the criminal gang offenses enhancement statute violates due process because it is overly broad and void for vagueness and that it violates his First Amendment right to free association and expression. Additionally, the Defendant argues there was insufficient evidence to support his convictions. Upon review, we conclude that the criminal gang offenses enhancement statute is unconstitutional because it violates substantive due process. However, we hold that the evidence was sufficient to support the Defendant's convictions of sale and delivery of less than .5 grams of cocaine within a drug-free zone. The judgments of the trial court are affirmed in part, modified in part, and reversed in part.

Knox County Court of Criminal Appeals 06/16/16
State of Tennessee v. Jerrie Coleman
W2015-01925-CCA-R3-CD
Authoring Judge: Judge Robert H. Montgomery, Jr.
Trial Court Judge: Judge Donald E. Parish

The Defendant, Jerrie Coleman, was convicted by a Carroll County Circuit Court jury of aggravated burglary, a Class C felony, vandalism of property valued at more than $500 but less than $1000, a Class E felony, possession of less than one-half ounce of marijuana, a Class A misdemeanor, and possession of drug paraphernalia, a Class A misdemeanor. See T.C.A. §§ 39-14-403(a) (2014) (aggravated burglary), 39-14-408(a) (2010) (amended 2015) (vandalism), 39-17-418(a) (2010) (amended 2014, 2016) (possession of a controlled substance), 39-17-425(a)(1) (2010) (amended 2012) (possession of drug paraphernalia). The trial court sentenced the Defendant to an effective four years. On appeal, the Defendant contends that (1) the evidence is insufficient to support his convictions, (2) his speedy trial rights were violated by an investigatory delay, and (3) the arrest warrant was not supported by probable cause, the arresting officers committed an illegal entry of the house during the arrest, and the officers violated the Defendant's Miranda rights. We affirm the judgments of the trial court.

Carroll County Court of Criminal Appeals 06/15/16
State of Tennessee v. Bendale Romero
E2015-00860-CCA-R3-CD
Authoring Judge: Judge Robert L. Holloway, Jr.
Trial Court Judge: Judge Steven Wayne Sword
Bendale Romero (“the Defendant”) stands convicted of attempted first degree murder, employing a firearm during the commission of a dangerous felony, and aggravated assault for the August 10, 2013 shooting of Nathan Kelso. The Defendant, along with his co-defendant, Joshua Johnson, were tried jointly but have pursued separate appeals in this court. On appeal, the Defendant argues that the trial court erred when (1) it allowed the jury to hear a 911 call under the excited utterance exception to the hearsay rule and (2) it ruled that, if the Defendant called a witness to testify that the victim had been the first aggressor in the past, the State could use a portion of the 911 tape, previously excluded by the trial court, in which the caller stated that he knew the shooter because he was the person who shot him in the eye last year. Upon review, we affirm the judgments of the trial court.
 
Knox County Court of Criminal Appeals 06/15/16
State of Tennessee v. Rico Cortez Bevins
M2015-01922-CCA-R3-CD
Authoring Judge: Judge James Curwood Witt, Jr.
Trial Court Judge: Judge Ross H. Hicks

The defendant, Rico Cortez Bevins, pleaded guilty to three counts of the sale or delivery of a Schedule II controlled substance, and the Montgomery County Circuit Court sentenced him as a Range II, multiple offender to a term of six years’ imprisonment.  On appeal, the defendant challenges the manner of service of his sentence.  We affirm the convictions and sentence but remand for correction of clerical errors in the judgments.

Montgomery County Court of Criminal Appeals 06/15/16
State of Tennessee v. Timothy Allen Johnson
M2015-01160-CCA-R3-CD
Authoring Judge: Judge Robert W. Wedemeyer
Trial Court Judge: Judge Cheryl Blackburn

A Davidson County jury convicted the Defendant, Timothy Allen Johnson, of sale of less than .5 grams of cocaine in a drug-free school zone.  On appeal, the Defendant contends that the evidence is insufficient to sustain his conviction.  After a thorough review of the record and applicable authorities, we affirm the trial court’s judgment.

Davidson County Court of Criminal Appeals 06/15/16
Kenneth Watts v. State of Tennessee
E2015-01151-CCA-R3-PC
Authoring Judge: Judge James Curwood Witt, Jr.
Trial Court Judge: Judge Bob R. McGee

The petitioner, Kenneth Watts, appeals the denial of post-conviction relief from his 2009 Knox County Criminal Court jury convictions of vandalism and theft of property, for which he received a sentence of 15 years. In this appeal, the petitioner contends only that he was denied the effective assistance of counsel. Discerning no error, we affirm.

Knox County Court of Criminal Appeals 06/14/16
State of Tennessee v. Devin Lamar Jamison
E2015-01894-CCA-R3-CD
Authoring Judge: Judge James Curwood Witt, Jr.
Trial Court Judge: Judge Bob R. McGee

Aggrieved of his Knox County Criminal Court jury convictions of aggravated assault, possession with intent to sell more than one-half ounce of marijuana in a drug free school zone, evading arrest, resisting arrest, driving with a suspended license, failing to comply with the financial responsibility law, and violating the safety belt requirement and vehicle registration requirements, the defendant, Devin Lamar Jamison, appeals. In this appeal, the defendant claims that the trial court erred by refusing to admit a video recording into evidence, that the trial court erred by imposing a fine greater than $10 for the safety belt violation, and that the court erred by imposing consecutive sentences. Because the trial court erred by taxing the costs associated with the safety belt violation to the defendant, we remand that count to the trial court for the entry of a corrected judgment. We affirm the judgments of the trial court in all other respects.

Knox County Court of Criminal Appeals 06/14/16
State of Tennessee v. Bobby Waddle
E2015-02310-CCA-R3-CD
Authoring Judge: Judge James Curwood Witt, Jr.
Trial Court Judge: Judge Stacy L. Street

The defendant, Bobby Waddle, 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 2012 Washington County Criminal Court guilty-pleaded convictions of aggravated burglary, theft of property valued at $10,000 or more but less than $60,000, and theft of property valued at $1,000 or more but less than $10,000. Discerning no error, we affirm.

Washington County Court of Criminal Appeals 06/14/16
State of Tennessee v. John Pierce Lankford
M2015-00676-CCA-R3-CD
Authoring Judge: Judge Timothy L. Easter
Trial Court Judge: Judge Jane W. Wheatcraft

Appellant, John Pierce Lankford, appeals the trial court’s summary denial of his petition for post-conviction relief and the execution of his original sentence following a revocation of his suspended sentence on Community Corrections.  Because Appellant was not appointed an attorney and afforded an opportunity to amend his petition for post-conviction relief, we reverse the summary denial of his petition and remand for further proceedings.  However, because the trial court did not abuse its discretion by ordering Appellant to serve his original sentence in confinement, we affirm the judgment of the trial court in this regard.

Sumner County Court of Criminal Appeals 06/14/16
State of Tennessee v. Darrin Dewayne Dickerson
W2015-00752-CCA-R3-CD
Authoring Judge: Judge Robert W. Wedemeyer
Trial Court Judge: Judge Jeff Parham

An Obion County jury convicted the Defendant, Darrin Dewayne Dickerson, of casual exchange of marijuana, casual exchange of methamphetamine, and delivery of less than 0.5 grams of a Schedule II controlled substance, methamphetamine, within 1,000 feet of a drug-free school zone, a Class C felony. The trial court merged the two methamphetamine convictions, and it sentenced the Defendant to an effective sentence of three years. On appeal, the Defendant contends: (1) the evidence is insufficient to support his convictions; (2) that juror misconduct warrants a new trial; (3) the trial court erred when it sentenced him; and (4) the cumulative effect of the errors requires that he be given a new trial. After review, we affirm the trial court’s judgments.

Obion County Court of Criminal Appeals 06/13/16
State of Tennessee v. Antonio Henderson and Marvin Dickerson
W2015-00151-CCA-R3-CD
Authoring Judge: Judge Robert L. Holloway, Jr.
Trial Court Judge: Judge Paula L. Skahan

Following a jury trial, Antonio Henderson ("Defendant Henderson") and Marvin Dickerson ("Defendant Dickerson") (collectively, "the Defendants" or "both Defendants") were each convicted of one count of especially aggravated robbery (Count 1), one count of attempted second degree murder (Count 2), two counts of attempted aggravated robbery (Counts 3 and 4), one count of aggravated assault (Count 5), and one count of employing a firearm during the commission of or attempt to commit a dangerous felony (Count 6). The trial court imposed partially consecutive sentences for both Defendants and sentenced Defendant Henderson to an effective forty-one years‘ incarceration and Defendant Dickerson to an effective thirty-seven years‘ incarceration. In this consolidated direct appeal, both Defendants claim the evidence was insufficient to support their convictions for each count of the indictment. As to the conviction of especially aggravated robbery, both Defendants assert that the victim‘s serious bodily injury had to precede or be contemporaneous with the taking in order to constitute especially aggravated robbery. Additionally, both Defendants contend the trial court erred in failing to instruct the jury as to certain lesser included offenses and in its instructions as to the elements of unlawful employment of a firearm. Additionally, Defendant Henderson claims the trial court erred in sustaining the State‘s objection during Defendant Henderson‘s closing argument and in sentencing him to serve partially consecutive sentences. Upon review, we conclude that the trial court committed reversible error when it failed to make any factual findings to support its order that Defendant Henderson‘s sentence in Count 1 run consecutively to his sentences in Counts 2 and 6, and we reverse and remand the case for resentencing on the alignment of Count 1 with Counts 2 and 6 of Defendant Henderson‘s sentence. As to the sufficiency of the evidence concerning the conviction for especially aggravated robbery, we reject the Defendants‘ argument that a victim must suffer serious bodily injury before or contemporaneous to the taking of property, and we hold that the evidence was sufficient to support a conviction for especially aggravated robbery because the taking of property was accomplished with a deadly weapon and serious bodily injury was suffered by the victim in connection with the taking. We affirm the judgments of the trial court in all other respects.

Shelby County Court of Criminal Appeals 06/10/16
State of Tennessee v. Jeremy Glen Nichols
W2014-02276-CCA-R3-CD
Authoring Judge: Presiding Judge Thomas T. Woodall
Trial Court Judge: Judge Nathan B. Pride

Defendant, Jeremy Glen Nichols, pleaded guilty to the vehicular homicides of A.D. (Count 1) and Teri Ann David (Count 2), the aggravated vehicular homicides of Teri Ann David (Count 3) and A.D. (Count 4), driving under the influence of an intoxicant (DUI)(Count 5), third offense DUI (Count 6), failure to yield resulting in death (Count 7), driving on a revoked license (DORL) (Count 8), DORL with a prior DUI (Count 9), and fourth offense DORL (Count 10). The trial court imposed an effective sentence of 44 years, 11 months, and 29 days. On appeal, Defendant argues that his sentence is excessive. After a thorough review, we affirm the sentence imposed by the trial court. However, we remand the case to the trial court for entry of separate judgment forms for each conviction, including those that must be merged, in light of the 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. Rule 11).

Henderson County Court of Criminal Appeals 06/10/16
State of Tennessee v. Robert Merle Coblentz
E2015-01643-CCA-R9-CD
Authoring Judge: Judge Timothy L. Easter
Trial Court Judge: Judge David Reed Duggan

Defendant, Robert Merle Coblentz, was charged with one count of sexual exploitation of a minor. This is an interlocutory appeal filed by the State from the trial court's order granting Defendant's motion to suppress evidence obtained from his computer pursuant to a search warrant. Upon our review of the record and relevant caselaw, we hold that the search warrant authorized the search of Defendant's computer despite the fact that he was not named in the search warrant or affidavit as an occupant of the residence to be searched or as an owner of the items to be seized. We reverse the judgment of the trial court and remand the case for further proceedings.

Blount County Court of Criminal Appeals 06/10/16
Essam Eshak v. State of Tennessee
M2015-01154-CCA-R3-PC
Authoring Judge: Judge D. Kelly Thomas, Jr.
Trial Court Judge: Judge Cheryl A. Blackburn

The Petitioner, Essam Eshak, appeals the dismissal of his petition for post-conviction relief as untimely.  He asserts that the statute of limitations should be tolled in the interest of justice because trial counsel had an actual conflict of interest by simultaneously representing the Petitioner and his co-defendant and should not have assisted the Petitioner in entering a guilty plea.  After review, we affirm the judgment of the post-conviction court.

Davidson County Court of Criminal Appeals 06/10/16
State of Tennessee v. Billy Applegate - concurring opinion
E2015-00809-CCA-R3-CD
Authoring Judge: Judge James Curwood Witt, Jr.
Trial Court Judge: Judge James F. Goodwin

The majority opinion adverts to the possibilities that the defendant's arrest had already become a fait accomplis when the behavior that gave rise to the resisting charges occurred and that two convictions of resisting arrest may have violated principles of double jeopardy. The majority notes that the defendant has raised neither of these issues and has, accordingly, waived our consideration of the same.

Sullivan County Court of Criminal Appeals 06/10/16
State of Tennessee v. Billy Applegate
E2015-00809-CCA-R3-CD
Authoring Judge: Judge D. Kelly Thomas, Jr.
Trial Court Judge: Judge James F. Goodwin

The Defendant, Billy Applegate, was indicted for one count of driving under the influence (DUI); one count of DUI per se; one count of leaving the scene of an accident resulting in damage to property adjacent to a highway; one count of driving a motor vehicle with an expired registration; and two counts of resisting arrest. See Tenn. Code Ann. §§ 39-16-602, 55-4-104, -10-105, -10-401. Following a jury trial, the Defendant was acquitted of the DUI, DUI per se, and leaving the scene of an accident charges. The jury convicted the Defendant of driving with an expired registration and both resisting arrest charges. The trial court imposed a total effective sentence of six months' incarceration to be served at seventy-five percent. In this appeal as of right, the Defendant contends (1) that the evidence was insufficient to sustain his resisting arrest convictions; and (2) that the trial court erred in denying the Defendant's request for alternative sentencing. Following our review, we affirm the judgments of the trial court.

Sullivan County Court of Criminal Appeals 06/10/16
State of Tennessee v. Shaun Royal Hill
W2015-00710-CCA-R3-CD
Authoring Judge: Judge Robert W. Wedemeyer
Trial Court Judge: Judge Joe H. Walker

A Tipton County jury convicted the Defendant, Shaun Royal Hill, of rape, and the trial court sentenced him to fifteen years in confinement. On appeal, the Defendant contends that: (1) the evidence was insufficient to sustain his conviction; (2) the trial court erred when it admitted the Defendant's phone records into evidence; (3) the Defendant was prejudiced by the jury venire and the jury selection process; (4) the trial court erred when it failed to instruct the jury regarding the collection and preservation of evidence; (5) the trial court erred when it allowed the State to impeach a witness through another witness's testimony; (6) the trial court erred when it restricted the Defendant's cross-examination of the victim; (7) the State made improper comments throughout trial; and (8) the trial court erred when it sentenced him. After a thorough review of the record and applicable authorities, we affirm the trial court's judgment.

Tipton County Court of Criminal Appeals 06/09/16
State of Tennessee v. Dewey Burton, Jr.
E2015-00879-CCA-R3-CD
Authoring Judge: Judge Timothy L. Easter
Trial Court Judge: Judge G. Scott Green

Defendant, Dewey Burton, Jr., appeals his conviction for aggravated child neglect, raising the following issues: (1) whether the child neglect statute is unconstitutionally vague; (2) whether the jury instructions inadequately explained the mens rea requirement; (3) whether the trial court erred by permitting the medical expert to offer an opinion as to an ultimate issue; and (4) whether the evidence was sufficient to support his conviction. The judgment of the trial court is affirmed.

Knox County Court of Criminal Appeals 06/09/16
State of Tennessee v. Marcus O. Hill
M2015-02308-CCA-R3-CD
Authoring Judge: Judge D. Kelly Thomas, Jr.
Trial Court Judge: Judge Robert L. Jones

The Appellant, Marcus O. Hill, appeals as of right from the Maury County Circuit Court’s summary dismissal of his several motions, wherein he alleged that he was falsely imprisoned due to the improper restructuring of his plea agreement by the Tennessee Department of Correction (“TDOC”).  The gravamen of the Appellant’s complaint is with the TDOC’s alignment of his sentences in violation of the terms of his plea agreement.  After a review of the record, we affirm.

Maury County Court of Criminal Appeals 06/09/16
State of Tennessee v. Adam Christopher Butler
W2015-01843-CCA-R3-CD
Authoring Judge: Judge Robert H. Montgomery, Jr.
Trial Court Judge: Judge Roy B. Morgan, Jr.

The Defendant, Adam Christopher Butler, was convicted by a Madison County Circuit Court jury of vandalism of property valued at $1000 or more. See T.C.A. § 39-14-408 (2014) (amended 2015). The trial court sentenced the Defendant to an effective four years on community corrections. On appeal, the Defendant contends that (1) the evidence is insufficient to support his conviction and (2) the trial court erred in excluding testimony relative to the victim's accusations against another person. We affirm the judgment of the trial court.

Madison County Court of Criminal Appeals 06/08/16
State of Tennessee v. Ross Pruitt
E2015-01494-CCA-R3-CD
Authoring Judge: Judge Robert L. Holloway, Jr.
Trial Court Judge: Judge Tammy M. Harrington

Ross Pruitt (“the Defendant”) appeals the Blount County Circuit Court’s order revoking his probation and imposing the balance of his two-year sentence for aggravated statutory rape. On appeal, the Defendant argues that the trial court abused its discretion by ordering him to serve the balance of his sentence in confinement as opposed to split confinement with the added condition that his internet access be monitored and restricted while on probation. After a thorough review of the record and applicable law, we affirm the judgment of the trial court.

Blount County Court of Criminal Appeals 06/08/16
State of Tennessee v. Sergei A. Novikov
M2015-01565-CCA-R3-CD
Authoring Judge: Judge James Curwood Witt, Jr.
Trial Court Judge: Judge Brody Kane

The defendant, Sergei A. Novikov, appeals his Wilson County Criminal Court bench conviction of criminal trespass, claiming that the evidence was insufficient to support his conviction.  Discerning no error, we affirm.

Wilson County Court of Criminal Appeals 06/08/16
Lajeanra E. Polk v. State of Tennessee
M2015-00431-CCA-R3-PC
Authoring Judge: Judge Norma McGee Ogle
Trial Court Judge: Judge Michael R. Jones

The Petitioner, LaJeanra E. Polk, filed a petition in the Montgomery County Circuit Court, seeking post-conviction relief because her counsel was ineffective.  The post-conviction court denied the petition, and the Petitioner appeals.  Upon review, we affirm the judgment of the post-conviction court.

Montgomery County Court of Criminal Appeals 06/07/16
State of Tennessee v. Larsheika Hill
M2015-01268-CCA-R3-CD
Authoring Judge: Judge Camille R. McMullen
Trial Court Judge: Judge Franklin L. Russell

The Defendant-Appellant, Larsheika Hill, entered a “best-interest” guilty plea on October 10, 2014, to the delivery of .5 grams or more of cocaine.  Prior to sentencing, Hill filed a motion to withdraw her guilty plea, alleging that her attorney coerced her into pleading guilty.  After a hearing, the trial court denied the motion.  On appeal, Hill contends that the trial court erred in denying her motion to withdraw her guilty plea.  Upon review, we affirm the judgment of the trial court.

Marshall County Court of Criminal Appeals 06/07/16