Court of Criminal Appeals Opinions

Format: 09/01/2015
Format: 09/01/2015
James Randall Roskam v. State of Tennessee
M2014-00599-CCA-R3-PC
Authoring Judge: Presiding Judge Thomas T. Woodall
Trial Court Judge: Judge Cheryl A. Blackburn

Petitioner, James Roskam, appeals from the post-conviction court’s denial of his petition for post-conviction relief. Petitioner was convicted of aggravated robbery and was sentenced to twenty years in confinement as a Range II multiple offender. Petitioner challenged his conviction on appeal, and a panel of this court affirmed the judgment of the trial court. State v. James Randall Roskam, No. M2011-02071-CCA-R3-CD, 2012 WL 3611749 (Tenn. Crim. App., Aug. 20, 2012), perm. app. denied (Tenn., Nov. 26, 2012). On appeal, Petitioner contends that his trial counsel was ineffective for failing to request a mistrial, failing to investigate whether exculpatory video evidence existed, failing to acquire 911 recordings, and failing to communicate with Petitioner during voir dire. After a careful review of the record, we affirm the judgment of the post-conviction court.

Davidson County Court of Criminal Appeals 05/27/15
State of Tennessee v. Kenon Pack and Jennifer Banks
W2014-00518-CCA-R3-CD
Authoring Judge: Judge Timothy L. Easter
Trial Court Judge: Judge Chris Craft

The Defendants, Kenon Pack and Jennifer Banks, were both indicted by the Shelby County Grand Jury for two counts of aggravated child abuse for injuries inflicted upon Defendant Banks's five-year-old daughter. After a jury trial, both Defendants were convicted as charged, and the trial court merged the two sets of convictions into a single count of aggravated child abuse for each Defendant. On appeal, both Defendants challenge the sufficiency of the convicting evidence as well as the trial court's rulings regarding the admission and exclusion of certain evidence. Upon thorough review of the record, we affirm the judgments of the trial court.

Shelby County Court of Criminal Appeals 05/26/15
Kenneth L. Williams v. State of Tennessee
M2014-01527-CCA-R3-PC
Authoring Judge: Judge Robert W. Wedemeyer
Trial Court Judge: Judge Michael R. Jones

The Petitioner, Kenneth L. Williams, pursuant to a plea agreement, pleaded guilty to aggravated sexual battery with a sentence of twelve years in the Tennessee Department of Correction. The Petitioner filed, pro se, a motion to withdraw his guilty plea and a petition for post-conviction relief. After a hearing, the post-conviction court issued an order denying the motion and dismissing the petition. On appeal, the Petitioner maintains that his guilty plea was not knowingly entered and that he received the ineffective assistance of counsel. After a thorough review of the record and relevant law, we affirm the post-conviction court’s judgments.

Montgomery County Court of Criminal Appeals 05/26/15
State of Tennessee v. Orlando E. Bourrage
M2014-01194-CCA-R3-CD
Authoring Judge: Judge Roger A. Page
Trial Court Judge: Judge Timothy L. Easter

Appellant, Orlando E. Bourrage, pleaded guilty to simple possession of marijuana and was sentenced to eleven months, twenty-nine days, suspended to probation.  In pleading guilty, he reserved a certified question of law challenging the trial court’s denial of his motion to suppress evidence seized as a result of an allegedly illegal detention.  On appeal, he argues that the arresting officer unreasonably prolonged the initial traffic stop and that the trial court erred by denying his request for judicial diversion.  Following our review, we affirm the judgment of the trial court.

Williamson County Court of Criminal Appeals 05/26/15
State of Tennessee v. Antonio Crenshaw
W2014-01367-CCA-R3-CD
Authoring Judge: Judge Camille R. McMullen
Trial Court Judge: Judge Lee V. Coffee

The Defendant-Appellant, Antonio Crenshaw, was convicted by a Shelby County jury of the charged offense of robbery, and the trial court sentenced him as a Range III, persistent offender to fifteen years. On appeal, Crenshaw argues: (1) the evidence is insufficient to sustain his conviction; (2) the trial court erred by instructing the jury on the generic offense of theft of property rather than the offense of shoplifting, by providing an incomplete charge for theft of property, and by giving a confusing definition for the term “violence” in the robbery charge in response to a question from the jury; (3) he was deprived of due process and a fair trial when the trial court corrected defense counsel during and after his closing argument, when the trial court ruled against him on a Rule 404(b) issue, and when a witness later testified, over his objection, that employees informed her Crenshaw had been “stealing again” after the incident in this case; and (4) the trial court lacked jurisdiction over his case because the grand jury foreperson on the grand jury indicting him possibly served longer than her two-year term. Upon review, we affirm the trial court's judgment.

Shelby County Court of Criminal Appeals 05/22/15
State of Tennessee v. Gerald Stephen Cassell and Brian James Beckwith
W2013-02368-CCA-R3-CD
Authoring Judge: Judge Camille R. McMullen
Trial Court Judge: Judge C. Creed McGinley

The Defendant-Appellants, Gerald Stephen Cassell and Brian James Beckwith, were jointly convicted by a Hardin County jury of one count of aggravated robbery, a Class B felony. See T.C.A. § 39-13-402. The trial court ordered each Defendant to serve twelve years in the Tennessee Department of Correction, consecutive to their unserved sentences in Florida. In this consolidated appeal, the Defendants argue that the trial court erred in denying their motion to suppress a witness's pretrial and trial identifications of them, the evidence is insufficient to sustain their aggravated robbery conviction, and the trial court erred in sentencing them. In addition, Cassell argues that the trial court erred in admitting witness testimony regarding the contents of a WalMart surveillance video. Upon review, we affirm the judgments of the trial court.

Hardin County Court of Criminal Appeals 05/22/15
State of Tennessee v. Travis Heath King
M2014-01478-CCA-R3-CD
Authoring Judge: Judge James Curwood Witt, Jr.
Trial Court Judge: Judge Robert Lee Holloway, Jr.

The defendant, Travis Heath King, 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.  Because the defendant stated a colorable claim for relief under the terms of Rule 36.1, the trial court erred by summarily dismissing his motion.  Accordingly, we reverse the judgment of the trial court and remand the case for further proceedings.

Maury County Court of Criminal Appeals 05/22/15
State of Tennessee v. Cheyne R. Stewart
M2014-00074-CCA-R3-CD
Authoring Judge: Judge Robert H. Montgomery, Jr.
Trial Court Judge: Judge J. Curtis Smith

The Defendant, Cheyne R. Stewart, was convicted by a Franklin County Circuit Court jury of criminal attempt to commit sexual battery, a Class A misdemeanor. See T.C.A. §§ 39-13-505(a)(3) (2014) (sexual battery), 39-12-101 (2014) (attempt). The trial court sentenced him to eleven months, twenty-nine days of probation. On appeal, he contends that (1) the evidence is insufficient to support his conviction, (2) the court erred by failing to provide his requested jury instructions, (3) the court erred by limiting defense counsel’s questioning of character witnesses, (4) the court committed plain error by failing to instruct the jury on a lesser included offense, and (5) the court erred by failing to fulfill its duties as the thirteenth juror. We affirm the judgment of the trial court.

Franklin County Court of Criminal Appeals 05/22/15
State of Tennessee v. Patrick Lee Mitchell
M2014-01129-CCA-R3-CD
Authoring Judge: Judge James Curwood Witt, Jr.
Trial Court Judge: Judge Michael W. Binkley

Pursuant to Rule 37(b) of the Tennessee Rules of Criminal Procedure, the defendant, who pleaded guilty to a single count of driving under the influence (“DUI”), appeals a certified question of law related to the trial court’s denial of his motion to suppress the results of blood alcohol testing. Discerning no error, we affirm the judgment of the trial court.

Williamson County Court of Criminal Appeals 05/22/15
John E. Carter v. Sharon Taylor, Warden
E2014-01065-CCA-R3-HC
Authoring Judge: Judge D. Kelly Thomas, Jr.
Trial Court Judge: Judge Robert E. Cupp

The Petitioner, John E. Carter, appeals as of right from the Johnson County Criminal Court's summary dismissal of his petition for writ of habeas corpus. The Petitioner contends that his due process rights were violated because, at the time of his trial, he was not given “fair warning” that the negation of an element of a criminal offense was recognized as a defense in this state. Following our review, we affirm the judgment of the habeas corpus court.

Johnson County Court of Criminal Appeals 05/22/15
State of Tennessee v. Gordon Herman Braden, III
M2014-01402-CCA-R3-CD
Authoring Judge: Judge James Curwood Witt, Jr.
Trial Court Judge: Judge Steve R. Dozier

The defendant, Gordon Herman Braden, III, appeals the revocation of his community corrections sentence, claiming that the trial court erred by ordering that he serve the balance of his sentence in confinement.  Discerning no error, we affirm.

Davidson County Court of Criminal Appeals 05/22/15
Billy Jack Cook v. State of Tennessee
M2014-00616-CCA-R3-PC
Authoring Judge: Judge Norma McGee Ogle
Trial Court Judge: Judge Dee David Gay

The petitioner, Billy Jack Cook, filed a petition for post-conviction relief in the Sumner County Criminal Court, alleging that his guilty pleas were not knowingly and voluntarily entered. After a hearing, the post-conviction court denied relief, and the petitioner appeals. Upon review, we affirm the judgment of the post-conviction court.

Sumner County Court of Criminal Appeals 05/22/15
Kevin Lee Johnson v. State of Tennessee
M2014-01166-CCA-R3-PC
Authoring Judge: Judge D. Kelly Thomas, Jr.
Trial Court Judge: Judge Forest A. Durard, Jr.

The Petitioner, Kevin Lee Johnson, appeals as of right from the Marshall County Circuit Court’s summary dismissal of his petition for post-conviction relief.  The Petitioner contends that the post-conviction court erred in summarily dismissing his petition for post-conviction relief for two separate convictions: (1) a 2012 conviction for driving after having been declared a motor vehicle habitual offender (“MVHO”) and (2) a 2013 conviction for failure to appear.  Following our review, we affirm the post-conviction court’s summary dismissal of the Petitioner’s claim regarding his 2012 MVHO conviction for having been untimely filed.  However, we reverse the post-conviction court’s summary dismissal of the Petitioner’s claim regarding his 2013 failure to appear conviction because the Petitioner stated a colorable claim for relief and remand the case to the post-conviction court for further proceedings consistent with this opinion.

Marshall County Court of Criminal Appeals 05/22/15
State of Tennessee v. Robert R. Bishop
M2014-01485-CCA-R3-CD
Authoring Judge: Judge Roger A. Page
Trial Court Judge: Judge David Earl Durham

Appellant, Robert R. Bishop, pleaded guilty to simple possession of a controlled substance and was sentenced to eleven months, twenty-nine days, suspended to probation.  Subsequently, the general sessions court found that appellant violated his probation.  He appealed the general sessions court’s judgment to criminal court.  After a hearing, the criminal court also found that appellant had violated his probation.  He now appeals to this court, arguing that his due process rights were violated when the probation office disposed of potentially exculpatory evidence and that the minimum due process requirements for probation revocation proceedings were not met.  Following our review of the record, we affirm the judgment of the criminal court.

Wilson County Court of Criminal Appeals 05/21/15
Brandon Mobley v. State of Tennessee
E2014-00481-CCA-R3-PC
Authoring Judge: Judge D. Kelly Thomas, Jr.
Trial Court Judge: Judge Bob R. McGee

The Petitioner, Brandon Mobley, appeals as of right from the Knox County Criminal Court's dismissal of his petition for post-conviction relief. The Petitioner contends that he received ineffective assistance of counsel when his trial counsel allowed a stun belt to be placed on the Petitioner without a hearing or any evidence from the State that use of the stun belt served a legimate necessity. Specifically, the Petitioner argues that wearing the stun belt forced him to testify against his will, affected his demeanor while testifying, impeded his ability to communicate with trial counsel, and “imparied his ability to take an active interest in the presentation of his case.” Following our review, we affirm the judgment of the post-conviction court.

Knox County Court of Criminal Appeals 05/21/15
State of Tennessee v. Jeffery Combs
E2014-01175-CCA-R3-CD
Authoring Judge: Judge D. Kelly Thomas, Jr.
Trial Court Judge: Judge Robert H. Montgomery, Jr.

The Defendant, Jeffery Combs, appeals as of right from his jury convictions for eighteen counts of forgery and one count of theft of property valued at $1,000.00 or more but less than $10,000.00, for all of which he received an effective twelve-year sentence. On appeal, the Defendant challenges only the sufficiency of the convicting evidence, arguing that his identity was not sufficiently established to support the eighteen counts of forgery; that one count of forgery was for an electronic check which he did not sign and, therefore, cannot be guilty of; that he cannot intend to steal property or defraud someone of their money if that person was known to have died; and that it was improper to aggregate the amount of each separate forgery to support the conviction for Class D felony theft. Following our review, we affirm the trial court’s judgments.

Sullivan County Court of Criminal Appeals 05/20/15
State of Tennessee v. Tammy Joy Ogden
W2014-01851-CCA-R3-CD
Authoring Judge: Judge Robert H. Montgomery
Trial Court Judge: Judge J. Weber McCraw

The Defendant, Tammy Joy Ogden, pleaded guilty in case number 35CC1-2014-CR-18 to delivery of morphine, a Class C felony, and to delivery of carisoprodol, a Class D felony. See T.C.A. §§ 39-17-417(a)(2) (2012) (amended 2014) (delivery), 39-17-408(b)(1)(I) (2014) (classifying morphine as a Schedule II controlled substance), 39-17-412(c)(5) (2014) (classifying carisoprodol as a Schedule IV controlled substance). The trial court sentenced the Defendant as a Range III, persistent offender to concurrent terms of ten years' confinement for the morphine conviction and eight years' confinement for the carisoprodol conviction. In case number 35CC1-2014-CR-113, the Defendant pleaded guilty to delivery of morphine, a Class C felony, and to delivery of alprazolam, a Class D felony. See id. §§ 39-17-417(a)(2) (delivery); 39-17-408(b)(1)(I) (morphine); 39-17-412(c)(1) (classifying alprazolam as a Schedule IV controlled substance). The court sentenced the Defendant as a Range III, persistent offender to concurrent terms of ten years' confinement for the morphine conviction and eight years' confinement for the alprazolam conviction. The court also ordered the sentences in each case to be served consecutively to each other, for an effective twenty-year sentence. On appeal, the Defendant contends that the court erred by (1) denying her alternative sentencing and (2) imposing partially consecutive service of the sentences. We affirm the judgments of the trial court.

Hardeman County Court of Criminal Appeals 05/20/15
State of Tennessee v. Alfred Ward
E2014-01192-CCA-R3-CD
Authoring Judge: Judge Norma McGee Ogle
Trial Court Judge: Judge Steven W. Sword
A Knox County Criminal Court Jury convicted the appellant, Alfred Ward, of two counts of aggravated burglary, a Class C felony, and misdemeanor theft. The trial court merged the aggravated burglary convictions and sentenced him as a Range III, persistent offender to an effective sentence of eleven years in confinement. On appeal, the appellant contends that the evidence is insufficient to support the convictions. Based upon the record and the parties’ briefs, we affirm the judgments of the trial court but remand the case for correction of the judgments.
 
Knox County Court of Criminal Appeals 05/20/15
State of Tennessee v. Tracy Dale Tate
E2014-01191-CCA-R3-CD
Authoring Judge: Judge D. Kelly Thomas, Jr.
Trial Court Judge: Judge Bob R. McGee

A Knox County jury found the Defendant, Tracy Dale Tate, guilty of one count each of sale and delivery of cocaine within 1,000 feet of an elementary school and one count each of sale and delivery of cocaine within 1,000 feet of a recreational center. See Tenn. Code Ann. §§ 39-17-417, -432. The trial court merged count two into count one and merged count four into count three, resulting in convictions for sale of .5 grams or more of cocaine within 1,000 feet of an elementary school and sale of .5 grams or more of cocaine within 1,000 feet of a recreational center. The Defendant received a total effective sentence of thirty years. In this appeal, the Defendant contends that the evidence was insufficient to support his convictions. He further argues that the trial court erred by failing to merge his four guilty verdicts into a single conviction, and the State concedes this point. Following our review, we conclude that the evidence was sufficient to support the Defendant’s convictions, but we agree that the trial court erred by failing to merge all the Defendant’s guilty verdicts into a single conviction, and we therefore remand for entry of a corrected judgment reflecting this merger.

Knox County Court of Criminal Appeals 05/20/15
Joe Clark Mitchell v. State of Tennessee
M2014-00754-CCA-R3-CD
Authoring Judge: Judge Norma McGee Ogle
Trial Court Judge: Judge Robert Lee Holloway, Jr.

The appellant, Joe Clark Mitchell, filed in the Maury County Circuit Court a motion to correct an illegal sentence pursuant to Tennessee Rule of Criminal Procedure 36.1.  The motion was summarily denied, and the appellant timely appealed the ruling.  Upon review, we affirm the judgment of the trial court.

Maury County Court of Criminal Appeals 05/20/15
Gary Bohannon v. State of Tennessee
W2014-01368-CCA-R3-PC
Authoring Judge: Judge John Everett Williams
Trial Court Judge: Judge Chris Craft

The petitioner, Gary Bohannon, was convicted of first degree (premeditated) murder and received a life sentence. He filed a petition for post-conviction relief, which the postconviction court denied. He now appeals, arguing that his right to due process and a fair trial was violated by statements that the trial court made to the jury during voir dire. He also argues that he received ineffective assistance of counsel when trial counsel did not object to the statements of the trial court, failed to ask for a continuance or a recess after the direct testimony of a witness, failed to locate and call a witness, and erroneously stated in closing argument that the petitioner made a statement to police. After a thorough review of the record, the briefs of the parties, and the applicable law, we affirm the judgment of the postconviction court.

Shelby County Court of Criminal Appeals 05/19/15
State of Tennessee v. Heng Lac Liu
M2013-02838-CCA-R3-CD
Authoring Judge: Judge Robert W. Wedemeyer
Trial Court Judge: Judge Monte D. Watkins

A Davidson County jury convicted the Defendant, Hen Lac Liu, of four counts of sexual battery. On appeal, the Defendant contends: (1) that the trial court improperly admitted hearsay evidence; (2) that the trial court improperly excluded defense evidence of the victim’s bias and lack of credibility; and (3) that the cumulative effect of these errors warrants a new trial. After a thorough review, we conclude that the cumulative effect of the errors by the trial court warrant a new trial for the Defendant.

Davidson County Court of Criminal Appeals 05/19/15
John Edward Lynch v. State of Tennessee
M2014-01831-CCA-R3-PC
Authoring Judge: Presiding Judge Thomas T. Woodall
Trial Court Judge: Judge Forest A. Durard, Jr.

Petitioner, John Edward Lynch, appeals the summary dismissal of his petition for post-conviction relief. After the post-conviction court was unable to locate the Petitioner for ten months because the Petitioner had been transferred to federal custody and did not notify the court that his address had changed, the post-conviction court “sua sponte” dismissed the Petition on its merits. After careful review of the parties’ briefs, the record, and the applicable law, we conclude that the petition alleged a colorable claim of ineffective assistance of counsel, thereby entitling Petitioner to appointed counsel and to an opportunity to amend his petition with the aid of post-conviction counsel. Accordingly, the judgment of the post-conviction court is reversed and remanded.

Marshall County Court of Criminal Appeals 05/19/15
William Keith Blackburn v. State of Tennessee
M2014-00950-CCA-R3-PC
Authoring Judge: Presiding Judge Thomas T. Woodall
Trial Court Judge: Judge Robert L. Jones

Petitioner, William Keith Blackburn, appeals from the post-conviction court’s denial of his petition for post-conviction relief. Petitioner was convicted of first degree premeditated murder and especially aggravated robbery. He received an effective life sentence. Petitioner challenged his convictions on appeal, and a panel of this court affirmed the judgments of the trial court. State v. William Keith Blackburn, No. M2009-01140-CCA-R3-CD, 2011 WL 2893083 (Tenn. Crim. App. July 20, 2011), perm. app. denied (Tenn. Oct. 19, 2011). On appeal, Petitioner contends that his trial counsel was ineffective for failing to call John Haggard, Adrian Rich, and Brent Olive as witnesses at trial. After a careful review of the record, we affirm the judgment of the post-conviction court.

Lawrence County Court of Criminal Appeals 05/19/15
Jimmy Heard v. State of Tennessee
M2013-02661-CCA-R3-PC
Authoring Judge: Judge Roger A. Page
Trial Court Judge: Judge M. Keith Siskin

Petitioner, Jimmy Heard, stands convicted of criminal conspiracy to commit aggravated robbery, aggravated robbery, and attempted second degree murder, for which he received an effective twenty-nine-year sentence.  He unsuccessfully sought post-conviction relief from his convictions and now appeals, claiming ineffective assistance of appellate counsel for failing to: (1) submit a transcript of the hearing on petitioner’s motion to recuse the trial judge; (2) address petitioner’s bond increase without a hearing; (3) address petitioner’s allegedly unlawful interrogation by law enforcement officers; and (4) object to a judge hearing his appeal who allegedly was once assigned to hear his case at trial.  Upon our review, we affirm the judgment of the post-conviction court.

Rutherford County Court of Criminal Appeals 05/19/15