Court of Criminal Appeals Opinions

Format: 07/31/2015
Format: 07/31/2015
State of Tennessee v. Charles Riley, Jr.
M2014-01652-CCA-R3-CD
Authoring Judge: Judge Robert L. Holloway, Jr.
Trial Court Judge: Judge David Earl Durham

Charles Riley, Jr. (“the Defendant”) appeals as of right from the trial court’s order revoking his probation, arguing the trial court abused its discretion when it determined that he violated probation.  Upon review, we affirm the judgment of the trial court.

Wilson County Court of Criminal Appeals 05/01/15
State of Tennessee v. Claudale Renaldo Armstrong
M2014-01041-CCA-R3-CD
Authoring Judge: Judge Camille R. McMullen
Trial Court Judge: Judge Franklin Lee Russell

A Marshall County Circuit Court jury convicted the Defendant-Appellant, Claudale Renaldo Armstrong, of sale of .5 grams or more of cocaine base; delivery of .5 grams or more of cocaine base; sale of less than .5 grams of cocaine; and delivery of less than .5 grams of cocaine.  See T.C.A. § 39-17-417 (2011). The trial court merged the four alternative counts into two convictions and sentenced Armstrong as a Range II, multiple offender to a total effective sentence of twenty-six years in the Department of Correction.  The sole issue presented for our review is whether the evidence is sufficient to support the convictions.  Upon review, we affirm the judgments of the trial court.

Marshall County Court of Criminal Appeals 04/30/15
State of Tennessee v. Melvin Brown
W2014-00162-CCA-R9-CD
Authoring Judge: Judge Camille R. McMullen
Trial Court Judge: Judge W. Mark Ward

The Defendant, Melvin Brown, was indicted by the Shelby County Grand Jury for driving under the influence (“DUI”); DUI with blood alcohol more than .20%; violation of the implied consent law; reckless driving; and driving with a license revoked, suspended, or cancelled. The Defendant refused law enforcement’s request to submit to a blood test to determine his blood alcohol content, and his blood was taken, without a warrant and over his objections, pursuant to Tennessee Code Annotated section 55-10-406(f)(1) (Supp. 2011). The trial court subsequently granted the Defendant’s motion to suppress evidence of his blood alcohol content. In this interlocutory appeal, the State challenges the trial court’s conclusion that the Code section 55-10-406(f)(1) is unconstitutional and that no exception to the warrant requirement existed to justify the warrantless blood draw. Upon review, we conclude that Code section 55-10-406(f)(1) does not dispense with the warrant requirement and reverse the portion of the trial court’s judgment declaring the statute unconstitutional. Because no exception to the warrant requirement existed, however, we affirm the order of the trial court suppressing the results of the Defendant’s blood alcohol content.

Shelby County Court of Criminal Appeals 04/30/15
State of Tennessee v. Travontay Tremont Berry
W2014-00808-CCA-R3-CD
Authoring Judge: Judge John Everett Williams
Trial Court Judge: Judge Donald H. Allen

A jury convicted the defendant, Travontay Tremont Berry, of tampering with evidence, a Class C felony, and carrying a firearm with the intent to go armed, a Class A misdemeanor. The defendant appeals the sufficiency of the evidence for his felony conviction, arguing that he did not know that an investigation was pending at the time of the offense. Having reviewed the record, we conclude that the evidence is sufficient to support the convictions, and we affirm the judgment of the trial court. We remand for correction of the judgment form to reflect the correct classification of the tampering with evidence offense and for reconsideration of the sentence in light of the correction.

Madison County Court of Criminal Appeals 04/30/15
Ginger Ilene Hudson Stump v. State of Tennessee
M2014-01373-CCA-R3-PC
Authoring Judge: Judge Alan E. Glenn
Trial Court Judge: Judge Franklin Lee Russell

The petitioner, Ginger Ilene Hudson Stump, pled guilty to seven counts of forgery, of which six were Class E felonies and one was a Class D felony.  The trial court sentenced her as a career offender to twenty-four years in the Department of Correction.  On direct appeal, this court affirmed the petitioner’s convictions and sentence.  State v. Ginger Ilene Hudson Stump, No. M2012-02723-CCA-R3-CD, 2013 WL 5310526, at *1 (Tenn. Crim. App. Sept. 20, 2013).  Subsequently, she filed a pro se petition for post-conviction relief, alleging she received the ineffective assistance of counsel.  Counsel was appointed and, following an evidentiary hearing, the post-conviction court denied the petition.  Based upon our review, we affirm the judgment of the post-conviction court.

Bedford County Court of Criminal Appeals 04/29/15
State of Tennessee v. Loreto Espinosa, Jr.
M2013-02751-CCA-R3-CD
Authoring Judge: Judge Robert H. Montgomery, Jr.
Trial Court Judge: Judge Franklin Lee Russell

The Defendant, Loreto Espinosa, Jr., was convicted by a Bedford County Circuit Court jury of eighteen counts of aggravated rape of a child, Class A felonies. See T.C.A. § 39-13-531 (2014). The trial court sentenced the Defendant as a Range III, persistent offender to sixty years for each conviction at 100% service and ordered partial consecutive sentences. The court ordered Counts 1 and 18 to run consecutively to each other and Counts 2 through 17 to run concurrently to each other but consecutively to Counts 1 and 18, for an effective 180-year sentence. On appeal, he contends that (1) the evidence is insufficient to support his convictions, (2) the State failed to make a proper election of the offenses for Counts 2 through 17, and (3) his sentence is excessive. We conclude that insufficient evidence exists relative to Counts 1 through 17, and we reverse the judgments of the trial court, vacate the convictions, and dismiss the charges relative to those counts. Although the trial court failed to require the State to make an election of the offense relative to Count 18, we conclude that the error was harmless beyond a reasonable doubt and affirm the judgment of the trial court.

Bedford County Court of Criminal Appeals 04/29/15
State of Tennessee v. Glen Sewell
W2014-00984-CCA-R3-CD
Authoring Judge: Judge John Everett Williams
Trial Court Judge: Judge James C. Beasley, Jr.

The defendant, Glen Sewell, was convicted of one count of Class D felony theft of property, two counts of Class D felony vandalism, one count of Class E felony vandalism, and one count of Class A misdemeanor vandalism. The trial court imposed an effective sentence of thirty-six years, with three twelve-year sentences for the Class D felonies to be served consecutively to each other and concurrently with a six-year sentence for the Class E felony conviction and an eleven month and twenty-nine day sentence for the Class A misdemeanor. On appeal, the defendant contends that: (1) the evidence is insufficient to support his convictions for Class E felony vandalism, Class D theft of property, and Class D felony vandalism; (2) the trial court erred when interrupting trial counsel during voir dire; (3) the trial court erred in imposing consecutive sentences. After a thorough review of the record and the applicable law, we affirm the judgment of the trial court.

Shelby County Court of Criminal Appeals 04/29/15
State of Tennessee v. Anthony Draine aka Anthony Draine-Love
W2013-02436-CCA-R3-CD
Authoring Judge: Judge Norma McGee Ogle
Trial Court Judge: Judge Chris Craft

A Shelby County Criminal Court Jury convicted the appellant, Anthony Draine a.k.a. Anthony Draine-Love, of aggravated burglary. He was sentenced as a Range II, multiple offender to nine years in the Tennessee Department of Correction. On appeal, the appellant challenges the trial court’s denial of his motion to suppress and contends that the evidence was insufficient to sustain his conviction. Upon review, we affirm the judgment of the trial court.

Shelby County Court of Criminal Appeals 04/29/15
State of Tennessee v. Gerald McEwen
W2013-02692-CCA-R3-CD
Authoring Judge: Judge Norma McGee Ogle
Trial Court Judge: Judge Paula Skahan

A Shelby County Criminal Court Jury convicted the appellant, Gerald McEwen, of first degree premeditated murder and attempted first degree murder. The trial court imposed a total effective sentence of life imprisonment in the Tennessee Department of Correction. On appeal, the appellant challenges the sufficiency of the evidence sustaining his convictions and contends that the trial court erred by denying his motion for a mistrial. Upon review, we affirm the judgments of the trial court.

Shelby County Court of Criminal Appeals 04/29/15
State of Tennessee v. Kurt Brewer
M2014-00601-CCA-R3-CD
Authoring Judge: Judge Robert L. Holloway, Jr.
Trial Court Judge: Judge Thomas W. Graham

A Grundy County Grand Jury indicted Kurt Brewer, the Defendant, for one count of first degree premeditated murder, two counts of reckless endangerment with a deadly weapon, and one count of employing a firearm during the commission of a dangerous felony. A jury found the Defendant guilty of the lesser-included offense of reckless homicide and not guilty on both counts of reckless endangerment with a deadly weapon. The charge of employing a firearm during the commission of a dangerous felony was not submitted to the jury. The jury set the maximum fine for a class D felony, $5,000. The trial court imposed a four-year sentence to be served. The Defendant claims the trial court erred in not granting an alternative sentence and in denying judicial diversion. After a thorough review of the record, we affirm.

Grundy County Court of Criminal Appeals 04/28/15
State of Tennessee v. Casey Dewayne Moon
M2014-00886-CCA-R3-CD
Authoring Judge: Judge Roger A. Page
Trial Court Judge: Judge Cheryl A. Blackburn

A Davidson County jury convicted appellant, Casey Dewayne Moon, of aggravated burglary, a Class C felony, and theft of property valued under $500, a Class A misdemeanor.  The trial court sentenced him to four years for the aggravated burglary conviction and a concurrent sentence of eleven months, twenty-nine days for the misdemeanor theft conviction.  The trial court ordered him to serve the first six months in confinement with the remainder to be supervised in community corrections.  On appeal, appellant argues that the trial court erred by allowing the State to introduce evidence of a prior theft conviction; that the evidence was insufficient to support his convictions; and that the trial court erred in its sentencing.  Following our review, we affirm the judgments of the trial court.

Davidson County Court of Criminal Appeals 04/28/15
Cole Woodard v. State of Tennessee
W2014-00837-CCA-R3-PC
Authoring Judge: Judge Robert W. Wedemeyer
Trial Court Judge: Judge John W. Campbell

A Shelby County jury convicted the Petitioner, Cole Woodard, of sale of cocaine, possession of cocaine with intent to sell, and possession of cocaine with intent to deliver. The trial court sentenced the Petitioner to serve three concurrent sentences of ten years each for these convictions. On appeal, this Court affirmed the convictions, but it vacated the judgments and remanded the case for entry of judgments reflecting merger of the jury verdicts into a single conviction for sale of cocaine. State v. Cole Woodard, W2011-02224-CCA-R3-CD, 2012 WL 4057266 (Tenn. Crim. App., at Jackson, Sept. 17, 2012), no Tenn. R. App. P. 11 application filed. The Petitioner filed a petition seeking post-conviction relief on January 28, 2014, alleging that he had received the ineffective assistance of counsel. After a hearing regarding whether the Petitioner petition was untimely filed, the post-conviction court dismissed the petition as time-barred. We affirm the post-conviction court’s judgment.

Shelby County Court of Criminal Appeals 04/28/15
Matrin Becton v. State of Tennessee
W2014-00177-CCA-R3-PC
Authoring Judge: Presiding Judge Thomas T. Woodall
Trial Court Judge: Judge Glenn Ivy Wright

Following a jury trial, Petitioner, Matrin Becton, was convicted of first degree premeditated murder and sentenced to life imprisonment without possibility of parole. He was also convicted in the same trial for especially aggravated robbery and two counts of especially aggravated kidnapping. The trial court sentenced Petitioner to serve twenty-five years’ incarceration for each conviction of especially aggravated kidnapping and especially aggravated robbery and ordered consecutive sentencing which resulted in an effective sentence of life imprisonment without possibility of parole plus seventy-five years’. Petitioner’s convictions were affirmed on appeal. State v. Matrin Becton and Antonio Sykes, No. W1999-00581-CCA-R3-CD, 2002 WL 1349530 (Tenn. Crim. App. June 19, 2001). Petitioner filed a timely petition for post-conviction relief, which was amended and supplemented. After several years of delays, an evidentiary hearing was finally held in 2013. The post-conviction trial court denied relief and Petitioner has timely appealed that ruling. Following a thorough review we affirm the judgment of the post-conviction court.

Shelby County Court of Criminal Appeals 04/28/15
State of Tennessee v. Michael Lambdin
E2014-00547-CCA-R3-CD
Authoring Judge: Judge D. Kelly Thomas, Jr.
Trial Court Judge: Judge Steven W. Sword

The Defendant, Michael Lambdin, appeals as of right his conviction for first degree murder committed during the perpetration of an attempted robbery. In this appeal, the sole issue presented for our review is whether the evidence is sufficient to support his conviction for felony murder. Specifically, the Defendant contends that the State failed to prove felony murder because the evidence was insufficient to support the elements of the underlying felony and because he abandoned his intent to commit the underlying felony prior to the shooting and killing of the victim by his co-defendant. After reviewing the record and the applicable authorities, we affirm the judgment of the trial court.

Knox County Court of Criminal Appeals 04/27/15
State of Tennessee v. William Davidson Hamby, Jr.
M2014-00593-CCA-R3-CD
Authoring Judge: Judge John Everett Williams
Trial Court Judge: Judge Monte Watkins

The defendant, William Davidson Hamby, Jr., was convicted after a bench trial of aggravated kidnapping, a Class B felony, and he was sentenced to serve fourteen years in prison. On appeal, the defendant challenges the sufficiency of the convicting evidence. He also asserts that the trial court erred in not ordering a second evaluation of his competency after he initially refused to attend his own trial. After a thorough review of the record, we conclude that the evidence is sufficient to support the verdict and that the trial court’s failure to order a second evaluation was not error, and we accordingly affirm the judgment.

Davidson County Court of Criminal Appeals 04/27/15
Andrew Soimis v. State of Tennessee
M2014-01700-CCA-R3-HC
Authoring Judge: Judge Roger A. Page
Trial Court Judge: Judge Leon C. Burns, Jr.

Petitioner, Andrew Soimis, filed a petition for writ of habeas corpus alleging that his judgment was void because he was convicted without an indictment.  The habeas corpus court summarily dismissed the petition.  Upon our review, we affirm the judgment of the habeas corpus court.

Putnam County Court of Criminal Appeals 04/24/15
State of Tennessee v. Tracy Lynn Carman-Thacker
M2014-00757-CCA-R3-CD
Authoring Judge: Judge Robert W. Wedemeyer
Trial Court Judge: Judge Vanessa Jackson

A Coffee County jury found the Defendant, Tracy Lynn Carman-Thacker, guilty of willful abuse, neglect, or exploitation and false imprisonment. The Defendant appeals, asserting that the trial court erred when it: (1) failed to compel the State to make an election of offenses; (2) denied the Defendant’s motion for acquittal as to both charges; and (3) determined that the victim was competent to testify at trial. After a thorough review of the record and applicable law, we reverse and remand in part, and affirm in part.

Coffee County Court of Criminal Appeals 04/24/15
State of Tennessee v. Gary Sulo Alto
M2014-01159-CCA-R3-CD
Authoring Judge: Judge Robert L. Holloway, Jr.
Trial Court Judge: Judge Thomas W. Graham

Gary Sulo Alto (“the Defendant”) pleaded guilty to theft of property valued at $10,000 but less than $60,000. After a sentencing hearing, the trial court denied alternative sentencing and ordered restitution in the amount of $60,000. On appeal, the Defendant argues that (1) the trial court erred when it denied alternative sentencing and (2) the trial court erred when it ordered restitution in the amount of $60,000 without considering the Defendant’s future ability to pay. Upon review, we affirm the trial court’s denial of alternative sentencing. However, because the trial court failed to make findings as to the Defendant’s future ability to pay restitution, and based on the record, we reduce the restitution from the ordered amount of $60,000 to $27,000 and affirm the judgment as to restitution as modified.

Marion County Court of Criminal Appeals 04/24/15
State of Tennessee v. John J. Ortega, Jr.
M2014-01042-CCA-R3-CD
Authoring Judge: Judge Timothy L. Easter
Trial Court Judge: Judge Michael R. Jones

Defendant, John J. Ortega, Jr., was indicted by the Montgomery County Grand Jury for two counts of rape of a child.  After a jury trial, Defendant was found guilty of aggravated sexual battery which was charged as a lesser included offense in Count One.  He was found not guilty in Count 2.  As a result, he was sentenced to nine years of incarceration.  Defendant appeals, arguing that aggravated sexual battery is not a lesser included offense of rape of a child.  Defendant did not object to the jury instructions at trial.  However, we have determined that aggravated sexual battery is no longer a lesser included offense of rape of a child under Tennessee Code Annotated section 40-18-110 as amended.  Therefore, the trial court’s instructions were in error.  However, we determine that the evidence is sufficient to support a conviction of the lesser included offense of child abuse.  Consequently, we modify Defendant’s conviction for aggravated sexual battery to child abuse and remand the matter to the trial court for entry of a corrected judgment and a new sentencing hearing.

Montgomery County Court of Criminal Appeals 04/23/15
Larry Stephen Brumit v. State of Tennessee
M2014-01039-CCA-R3-ECN
Authoring Judge: Judge Robert L. Holloway, Jr.
Trial Court Judge: Judge David M. Bragg

Larry Stephen Brumit (“the Petitioner”) appeals from the summary dismissal of his Petition for Writ of Error Coram Nobis. Upon review, we affirm the judgment of the coram nobis court.

Rutherford County Court of Criminal Appeals 04/23/15
James R. Cranmer v. State of Tennessee
M2013-02866-CCA-R3-PC
Authoring Judge: Judge Robert W. Wedemeyer
Trial Court Judge: Judge Michael R. Jones

In 2011, the Petitioner, James R. Cranmer, pleaded guilty to one count of second degree murder, one count of attempted second degree murder, and two counts of reckless aggravated assault. The trial court sentenced him to an effective sentence of fifteen years in the Tennessee Department of Correction. The Petitioner filed a petition for post-conviction relief, alleging that he received the ineffective assistance of counsel, and the post-conviction court held an evidentiary hearing after which it denied the petition. On appeal, the Petitioner contends that the post-conviction court erred when it denied his post-conviction petition because he received the ineffective assistance of counsel at trial, and he further contends that his guilty plea was not voluntary, knowing, or intelligent because the State committed a Brady violation. After a thorough review of the record and applicable law, we affirm the post-conviction court’s judgment.

Montgomery County Court of Criminal Appeals 04/23/15
Nicholas Short v. State of Tennessee
M2014-00614-CCA-R3-PC
Authoring Judge: Presiding Judge Thomas T. Woodall
Trial Court Judge: Judge Steve R. Dozier

Petitioner, Nicholas Short, was indicted by the Davidson County Grand Jury for one count of first degree premeditated murder and one count of felony murder in the perpetration of an especially aggravated robbery. Petitioner was convicted by a jury of first degree premeditated murder in count 1 and the lesser-included offense of second degree murder in count 2. The trial court merged the two offenses and sentenced Petitioner to a term of life imprisonment. Petitioner appealed his conviction, and this court affirmed. State v. Nicholas Short, No. M2010-01914-CCA-R3-CD, 2012 WL 1593174 (Tenn. Crim. App., May 7, 2012), perm. to app. denied (Tenn., Sept. 20, 2012). Petitioner filed a petition seeking post-conviction relief on the basis that his trial counsel provided ineffective assistance of counsel. Following an evidentiary hearing, the post-conviction court denied post-conviction relief. Petitioner appeals the post-conviction court’s denial of his post-conviction petition. Having carefully reviewed the record, we affirm the denial of post-conviction relief.

Davidson County Court of Criminal Appeals 04/22/15
State of Tennessee v. Anthony Dewayne Blaylock
W2014-01578-CCA-R3-CD
Authoring Judge: Judge Robert W. Wedemeyer
Trial Court Judge: Judge Roy B. Morgan, Jr.

A Madison County jury convicted the Defendant, Anthony Dewayne Blaylock, of two counts of aggravated assault, one count of attempted aggravated assault, and one count of criminal trespass, and the trial court sentenced him to an effective sentence of eight years in confinement. On appeal, the Defendant contends that the evidence is insufficient to sustain his convictions. After a thorough review of the record and applicable authorities, we affirm the trial court’s judgments.

Madison County Court of Criminal Appeals 04/22/15
State of Tennessee v. Cedric Robertson
W2014-01545-CCA-R3-CD
Authoring Judge: Judge Robert H. Montgomery, Jr.
Trial Court Judge: Judge Roy B. Morgan, Jr.

The Defendant, Cedric Robertson, was convicted by a Madison County Circuit Court jury of the sale and the delivery of more than one-half ounce of marijuana, a Class E felony. See T.C.A. §§ 39-17-417 (Supp. 2012) (amended 2014), 39-17-415 (2014). The trial court merged the convictions and sentenced the Defendant as a Range II, multiple offender to four years’ confinement. On appeal, the Defendant contends that the evidence is insufficient to support his conviction. We affirm the judgment of the trial court.

Madison County Court of Criminal Appeals 04/22/15
State of Tennessee v. Detrick Cole
W2013-02766-CCA-R3-CD
Authoring Judge: Judge Robert W. Wedemeyer
Trial Court Judge: Judge Lee V. Coffee

A Shelby County jury found the Defendant, Detrick Cole, guilty of first degree premeditated murder and imposed a sentence of death. The Defendant’s conviction and sentence were affirmed by this Court, State v. Detrick Cole, No. W2002-01254-CCA-R3-DD, 2003 WL 22848969 (Tenn. Crim. App., at Jackson, Nov. 24, 2003), and by our Supreme Court, State v. Cole, 155 S.W.3d 885 (Tenn. 2005). The Defendant filed a petition for post-conviction relief alleging ineffective assistance of counsel, which was denied after a hearing. On appeal, this Court agreed with the Defendant’s contention that he had received the ineffective assistance of counsel during the penalty phase of his trial and remanded the case to the trial court for a new penalty phase proceeding. Detrick Cole v. State, No. W2008-02681-CCAR3-PC, 2011 WL 1090152, at *56 (Tenn. Crim. App., at Jackson, March 8, 2011), perm. app. denied (Tenn. July 14, 2011). On remand and prior to the new penalty phase proceeding, the Defendant filed a motion challenging the State’s introduction of his 1997 convictions in support of the prior violent felony aggravating circumstance, arguing that the violence of these convictions was ambiguous. See T.C.A. § 39-13-204(i)(2). The trial court denied the Defendant’s motion, concluding that the issue had been previously litigated and decided in the Defendant’s prior appeal. The Defendant then filed an extraordinary appeal, pursuant to Tennessee Rule of Appellate Procedure 10, which this Court denied. Thereafter, the Defendant agreed to accept a sentence of life without the possibility of parole, and a hearing was held to enter that sentence and a judgment of conviction reflecting that sentence. The Defendant appeals this judgment, contending that his sentence is illegal and void and should be set aside. He again argues that he is ineligible to receive this sentence because his 1997 convictions were insufficient to support the prior violent felony aggravating circumstance. After a thorough review of the record and applicable law, we dismiss the appeal.

Shelby County Court of Criminal Appeals 04/22/15