Court of Criminal Appeals Opinions

Format: 02/06/2016
Format: 02/06/2016
State of Tennessee v. Tasha Briggs
W2014-01214-CCA-R3-CD
Authoring Judge: Judge Norma McGee Ogle
Trial Court Judge: Judge J. Robert Carter, Jr.

A Shelby County Criminal Court Jury convicted the appellant, Tasha Briggs, of possession of a controlled substance with intent to sell, a Class E felony, possession of a controlled substance with intent to deliver, a Class E felony, and possession of a firearm with the intent to go armed during the commission of a dangerous felony, a Class D felony. After a sentencing hearing, the trial court merged the convictions for possession of a controlled substance and sentenced the appellant to an effective four-year sentence to be served as three years in confinement followed by one year on probation. On appeal, the appellant contends that the trial court improperly instructed the jury regarding the mens rea for the offense of possession of a firearm with the intent to go armed and that the evidence is insufficient to support the conviction. Based upon the record and the parties' briefs, we conclude that the trial court committed reversible error regarding the instruction and that the case must be remanded for a new trial on the charge of possessing a firearm with the intent to go armed during the commission of a dangerous felony. Moreover, upon remand, the trial court is to enter a single judgment of conviction for possession of a controlled substance with intent to deliver.

Shelby County Court of Criminal Appeals 10/06/15
State of Tennessee v. Jacob Dale Gormsen
M2014-01731-CCA-R3-CD
Authoring Judge: Judge John Everett Williams
Trial Court Judge: Judge Timothy L. Easter

The defendant, Jacob Dale Gormsen, pled guilty to one count of driving under the influence, a Class A misdemeanor, in violation of Tennessee Code Annotated section 55-10-401 (2010). He reserved a certified question challenging the trial court’s denial of his motion to suppress. The defendant asserts that his encounter with law enforcement was not consensual and that law enforcement had no probable cause or reasonable suspicion to initiate an investigatory stop after discovering him unconscious in a running vehicle on the road. We conclude that the interaction between the defendant and the officer began as a consensual police-citizen encounter and that the officer possessed reasonable suspicion at the point that the interaction became an investigatory stop. Accordingly, we affirm the denial of the motion to suppress.

Williamson County Court of Criminal Appeals 10/06/15
Morgan Moore v. State of Tennessee
M2015-00139-CCA-R3-PC
Authoring Judge: Judge Roger A. Page
Trial Court Judge: Judge Dee David Gay

Petitioner, Morgan Moore, entered guilty pleas to first degree murder and criminal responsibility for first degree murder for his involvement in the murders of his parents. He received concurrent sentences of life in prison. He thereafter filed a timely petition for post-conviction relief alleging that trial counsel failed to properly inform him of the nature and consequences of his guilty pleas, specifically, the length of a life sentence, and that as a result, his guilty pleas were not entered knowingly, intelligently, and voluntarily. Following an evidentiary hearing, the post-conviction court denied relief, and this appeal follows. Upon review, we affirm the judgment of the post-conviction court.

Sumner County Court of Criminal Appeals 10/06/15
State of Tennessee v. Bertin Dejesus Jimenez
M2014-01109-CCA-R3-CD
Authoring Judge: Judge Norma McGee Ogle
Trial Court Judge: Judge Timothy L. Easter

The Appellant, Bertin DeJesus Jimenez, pled guilty to stalking and received a sentence of ninety days in the workhouse. Thereafter, the Appellant filed a motion to vacate the judgment, contending that the arrest warrant was void ab initio because it failed to allege all of the elements of the offense. The trial court denied the motion, and the Appellant appealed. Upon review, we conclude that the appeal should be dismissed.

Williamson County Court of Criminal Appeals 10/05/15
James Mitchell Smith v. State of Tennessee
M2014-02558-CCA-R3-PC
Authoring Judge: Judge Roger A. Page
Trial Court Judge: Judge David M. Bragg

Petitioner, James Mitchell Smith, is seeking post-conviction relief from his convictions for driving under the influence (“DUI”), driving on a suspended or canceled license, reckless endangerment, and two counts of leaving the scene of an accident. The post-conviction court denied relief, and petitioner now appeals, arguing that he received ineffective assistance of counsel at trial. Following our review, we affirm the judgment of the post-conviction court.

Rutherford County Court of Criminal Appeals 10/05/15
State of Tennessee v. Andre Bernard Easley
W2014-02266-CCA-R3-CD
Authoring Judge: Judge James Curwood Witt, Jr.
Trial Court Judge: Judge C. Creed McGinley

The defendant, Andre Bernard Easley, appeals his Benton County Circuit Court jury conviction of introduction into or possession of drugs in a penal institution, claiming that the sentence imposed by the trial court was excessive. Discerning no error, we affirm the judgment of the trial court.

Benton County Court of Criminal Appeals 10/05/15
Timothy A. Baxter v. State of Tennessee
W2014-02325-CCA-R3-HC
Authoring Judge: Judge D. Kelly Thomas, Jr.
Trial Court Judge: Judge Donald H. Allen

The Petitioner, Timothy A. Baxter, appeals as of right from the Madison County Circuit Court’s summary dismissal of his petition for writ of habeas corpus. The Petitioner contends that his petition stated cognizable claims for habeas corpus relief because it alleged numerous violations of his constitutional rights, ineffective assistance of his trial and appellate counsel, “pervasive governmental misconduct,” and insufficiency of the convicting evidence. Following our review, we reverse the judgment of the Circuit Court and remand the case for treatment of the petition as one for post-conviction relief and further proceedings consistent with the Post-Conviction Procedure Act.

Madison County Court of Criminal Appeals 10/05/15
State of Tennessee v. Brandon Leon Forbes
W2014-02073-CCA-R3-CD
Authoring Judge: Judge D. Kelly Thomas
Trial Court Judge: Judge Roy B. Morgan, Jr.

Following a jury trial, the Defendant, Brandon Leon Forbes, was convicted of aggravated burglary, a Class C felony; theft of property valued at $10,000 or more but less than $60,000, a Class C felony; and vandalism of property valued at $500 or less, a Class A misdemeanor. See Tenn. Code Ann. §§ 39-14-103, -105, -403, -408. The trial court sentenced the Defendant as a Range III, persistent offender to a total effective sentence of twenty-four years. In this appeal as of right, the Defendant contends (1) that the evidence was insufficient to sustain his convictions; (2) that the State committed prosecutorial misconduct during voir dire; (3) that juror misconduct occurred during the course of his trial; (4) that the trial court erred in determining the length of his sentences; and (5) that the trial court erred in imposing partial consecutive sentences. Following our review, we affirm the judgments of the trial court.

Madison County Court of Criminal Appeals 10/05/15
State of Tennessee v. Marlon Yarbro
W2015-00475-CCA-R3-CD
Authoring Judge: Judge Timothy L. Easter
Trial Court Judge: Judge Charles C. McGinley

Appellant, Marlon Yarbro, appeals from his convictions for drug offenses, arguing that the State introduced improper evidence of previous misconduct and violated his right to compulsory process and also argues that the trial court improperly applied the drug free school zone enhancement to his conviction for simple possession. After a thorough review, we conclude that Appellant is not entitled to relief on the judgments for selling a controlled substance within a school zone and possession of drug paraphernalia. However, because the school zone enhancement was improperly applied to the simple possession conviction, we remand to the trial court for entry of a corrected judgment.

Hardin County Court of Criminal Appeals 10/05/15
State of Tennessee v. Christopher Loyd Davis
W2014-02101-CCA-R3-CD
Authoring Judge: Judge Timothy L. Easter
Trial Court Judge: Judge Charles C. McGinley

Defendant, Christopher Loyd Davis, was indicted for theft of property valued over $10,000. After a trial, Defendant was found guilty of theft. The jury verdict form reflects a conviction for theft of property valued over $1000 but less than $10,000, a Class D felony. The judgment form reflects a Class C felony theft conviction with a sentence of twelve years in incarceration as a Career Offender. After the denial of a motion for new trial, Defendant appealed, arguing that the evidence was insufficient to support the conviction, that the State failed to prove the value of the property, that the trial court erred in admitting hearsay evidence, that the trial court erred in denying a jury instruction on ignorance or mistake of fact, and that the trial court erred by having extrajudicial communication with the jury. After our review of the record and applicable authorities, we conclude that the judgments do not properly reflect the jury's verdict. Therefore, we affirm the conviction and remand the case for entry of a corrected judgment.

Hardin County Court of Criminal Appeals 10/05/15
State of Tennessee v. Kristy L. Poland - Dissent
E2014-02521-CCA-R3-CD
Authoring Judge: Judge Camille R. McMullen
Trial Court Judge: Judge E. Eugene Eblen

I respectfully dissent from the conclusion reached by the majority in this case. When establishing the proper amount in restitution owed, the trial court should base the figure on the victim’s pecuniary loss as well as the defendant’s financial resources and future ability to pay or perform. T.C.A. § 40-35-304(b), (d)-(e) (2010); State v. Smith, 898 S.W.2d 742, 747 (Tenn. Crim. App. 1994). Furthermore, the payment schedule is not to exceed the term of the sentence imposed. T.C.A. § 40-35-304(c), (g)(2); see also State v. Daniel Lee Cook, No. M2004-02099-CCA-R3-CD, 2005 WL 1931401, at *4 (Tenn. Crim. App. Aug. 10, 2005) (concluding that there was no way the appellant could pay $9,000 in restitution at a rate of $150 per month during a sentence of eleven months and twenty-nine days). Finally, the Tennessee Supreme Court has previously stated that the trial court “simply should [] set the restitution at an amount it believe[s] [the defendant] can pay” rather than attempting to “facilitate payment of its order of restitution.” See State v. Mathes, 115 S.W.3d 915, 919 (2003).

Roane County Court of Criminal Appeals 10/05/15
State of Tennessee v. Kristy L. Poland
E2014-02521-CCA-R3-CD
Authoring Judge: Judge Robert L. Holloway, Jr.
Trial Court Judge: Judge E. Eugene Eblen

Kristy L. Poland (“the Defendant”) pleaded guilty to theft of property valued at over $500 and was sentenced to one year suspended to supervised probation with restitution to be set by the trial court. After a hearing on the issue of restitution, the trial court ordered the Defendant to pay $8,100 in monthly installments of $75. On appeal, the Defendant argues that the trial court failed to consider her current financial resources and future ability to pay restitution. Upon review of the record and applicable law, we modify the trial court‟s restitution order and remand the case for entry of a new restitution order.

Roane County Court of Criminal Appeals 10/05/15
Jason Lee Fisher v. State of Tennessee
M2014-02327-CCA-R3-PC
Authoring Judge: Judge Robert L. Holloway, Jr.
Trial Court Judge: Judge Robert G. Crigler

Jason Lee Fisher (“the Petitioner”) was convicted of four counts of burglary, four counts of theft of property, and three counts of vandalism. The Petitioner filed a petition for post-conviction relief alleging, among other things, that he received ineffective assistance of counsel when trial counsel and co-counsel failed to file a motion to suppress evidence found during the inventory search of the Petitioner’s vehicle. Following a hearing where only the Petitioner, trial counsel, and co-counsel testified, the post-conviction court found that the Petitioner failed to show that he was prejudiced by counsels’ alleged deficiencies. On appeal, the Petitioner argues that the State failed to prove that impounding the Petitioner’s car was necessary and, therefore, the inventory search was invalid. Accordingly, he contends that, had trial counsel and co-counsel filed a motion to suppress, it would have been successful, and all the evidence against the Petitioner would have been excluded. Upon review of the record and applicable law, we affirm the judgment of the post-conviction court.

Marshall County Court of Criminal Appeals 10/02/15
Deshaun Fly Smith v. State of Tennessee
M2014-02398-CCA-R3-ECN
Authoring Judge: Judge Robert W. Wedemeyer
Trial Court Judge: Judge J. Randall Wyatt, Jr.

In 1998, the Petitioner, Deshaun Fly Smith, was convicted along with three co-defendants of one count of first degree premeditated murder and two counts of attempted first degree murder. The trial court imposed upon the Petitioner an effective life sentence plus twenty-five years. This court affirmed the Petitioner’s convictions on appeal. State v. Smith, No. M1997-00087-CCA-R3-CD, 1999 WL 1210813, at *14-20 (Tenn. Crim. App., at Nashville, Dec. 17, 1999), Tenn. R. App. P. 11 denied (Tenn. Oct. 9, 2000). In 2001, the Petitioner filed a petition for post-conviction relief, which was dismissed. This court affirmed the dismissal of the petition on appeal. Deshaun Fly Smith v. State, No. M2004-00719-CCA-R3-PC, 2005 WL 468308, at *1 (Tenn. Crim. App., at Nashville, Dec. 15, 2004), Tenn. R. App. P. 11 denied (Tenn. Nov. 7, 2005). In 2014, the Petitioner filed a petition for a writ of error coram nobis, in which he presented multiple claims, including that the prosecutor intentionally withheld evidence in the form of the State’s primary witness’s criminal history. The coram nobis court dismissed the petition as untimely and held that the Petitioner had not established that his grounds for relief arose after the limitations period. On appeal, the Petitioner alleges that the coram nobis court erred when it dismissed his petition, contending that the newly discovered evidence warrants a waiver of the statute of limitations. After a thorough review of the record and applicable authorities, we affirm the coram nobis court’s judgment.

Davidson County Court of Criminal Appeals 10/02/15
State of Tennessee v. Danny Santarone
E2014-01551-CCA-R3-CD
Authoring Judge: Judge Timothy L. Easter
Trial Court Judge: Judge Robert H. Montgomery, Jr.

Defendant, Danny Santarone, was convicted of possession of dihydrocodeinone, oxycodone, cocaine, and heroin within 1000 feet of a school with the intent to sell or deliver. On appeal, Defendant argues that the evidence is insufficient to support his convictions and that application of the school zone enhancement violates public policy. Based upon a thorough review of the record, authorities, and arguments, we conclude that the evidence is sufficient to support Defendant’s convictions and that his argument regarding the public policy behind the school zone enhancement is without merit. We therefore affirm the judgments of the trial court.

Sullivan County Court of Criminal Appeals 10/01/15
State of Tennessee v. Terry Lynn Priest
M2014-02116-CCA-R3-CD
Authoring Judge: Judge Norma McGee Ogle
Trial Court Judge: Judge Larry B. Stanley, Jr.

The Appellant, Terry Lynn Priest, pled guilty to theft in an amount more than $1,000 and less than $10,000. He was sentenced as a Range II offender to five years in the Tennessee Department of Correction. On appeal, the Appellant challenges the trial court’s denial of alternative sentencing. Upon review, we affirm the judgment of the trial court.

Warren County Court of Criminal Appeals 10/01/15
State of Tennessee v. Terrance Wilks
W2014-02304-CCA-R3-PC
Authoring Judge: Judge D. Kelly Thomas, Jr.
Trial Court Judge: Judge John W. Campbell

The Petitioner, Terrance Wilks, appeals from the Shelby County Criminal Court’s order summarily dismissing his petition requesting deoxyribonucleic acid (“DNA”) testing pursuant to the 2001 Post-Conviction DNA Analysis Act (“the Act”). See Tenn. Code Ann. §§ 40-30-301 to -309. The Petitioner contends that the post-conviction court erred when it concluded that he had not proven the statutory prerequisites for DNA analysis set forth in the Act. Following our review, we affirm the post-conviction court’s summary dismissal of the Petitioner’s petition.

Shelby County Court of Criminal Appeals 09/30/15
Richard Herrera v. State of Tennessee
W2014-02458-CCA-R3-PC
Authoring Judge: Judge Robert H. Montgomery, Jr.
Trial Court Judge: Judge Jeffrey W. Parham

The Petitioner, Richard Herrera, appeals the Obion County Circuit Court's denial of his petition for post-conviction relief from his 2010 convictions for sexual battery and attempted sexual battery and his effective one-year sentence. The Petitioner contends that he received the ineffective assistance of counsel. We affirm the judgment of the post-conviction court.

Obion County Court of Criminal Appeals 09/30/15
State of Tennessee v. Terry Norris
W2000-00707-CCA-R3-CD
Authoring Judge: Judge Robert W. Wedemeyer
Trial Court Judge: Judge James C. Beasley, Jr.

In this procedurally complex case, a Shelby County jury convicted the Defendant, Terry Norris, of second degree murder in 1999, and the trial court sentenced him to twenty-one years of incarceration. After several proceedings and filings, discussed in detail below, the U.S. Sixth Circuit granted the Defendant habeas corpus relief unless the State allowed the Defendant to reopen his original direct appeal and raise an issue regarding whether his confession should have been suppressed pursuant to County of Riverside v. McLaughlin, 500 U.S. 44 (1991). The State allowed the Defendant to reopen his appeal. On appeal, the Defendant contends that the trial court erred when it denied his motion to suppress his confession to police because he gave his confession after being held for more than forty-eight hours without a probable cause hearing. This Court addressed the issue pursuant to plain error review. State v. Terry Norris, No. W2000-00707-CCA-R3-CD, 2014 WL 6482823 (Tenn. Crim. App., at Jackson, Nov. 18, 2014), perm. app. denied (Tenn. Apr. 22, 2015). The Defendant filed a Rule 11 application, pursuant to the Tennessee Rules of Appellate Procedure, to the Tennessee Supreme Court. Our Supreme Court granted the application and remanded the case to this Court for plenary review. The State filed a petition to rehear, which the Tennessee Supreme Court denied on May 15, 2015. After our plenary review, we conclude that the Defendant is not entitled to relief.

Shelby County Court of Criminal Appeals 09/30/15
State of Tennessee v. Carlos Wilson
W2014-01388-CCA-R3-CD
Authoring Judge: Judge Robert W. Wedemeyer
Trial Court Judge: Judge John W. Campbell

A Shelby County jury convicted the Defendant of aggravated sexual battery and especially aggravated sexual exploitation of a minor. The trial court sentenced him to an effective sentence of twenty-one years, to be served at 100%. On appeal, the Defendant contends that: (1) the trial court erred when it required that he be represented by counsel at trial; (2) the evidence is insufficient to sustain his convictions; and (3) the trial court erred when it ordered consecutive sentences. After a thorough review of the record and the applicable authorities, we conclude that there exists no error in the judgments of the trial court. Accordingly, we affirm the trial court's judgments.

Shelby County Court of Criminal Appeals 09/30/15
State of Tennessee v. Donald Biggs, Alias - Dissenting
E2014-01650-CCA-R3-CD
Authoring Judge: Judge Thomas T. Woodall
Trial Court Judge: Judge Steven W. Sword

I would affirm the judgment of the trial court in this case, and therefore I respectfully dissent from the majority opinion. I want to make it clear that I do not dissent for the reason the sentence imposed by the trial court is the most appropriate sentence for the Defendant. In fact, had I been the trial judge, I would have been persuaded by the logic set forth in Judge Thomas' opinion to sentence the Defendant to an effective sentence of 22 years.

Knox County Court of Criminal Appeals 09/30/15
State of Tennessee v. Donald Biggs, Alias
E2014-01650-CCA-R3-CD
Authoring Judge: Judge D. Kelly Thomas, Jr.
Trial Court Judge: Judge Steven W. Sword

The Defendant, Donald Biggs, alias, appeals as of right from his guilty-pleaded convictions for four counts of aggravated robbery, two counts of theft by shoplifting, and one count of attempted aggravated robbery. See Tenn. Code Ann. §§ 39-12-101, -13-402, -14-103, -14-105, -14-146. Following a sentencing hearing, the trial court sentenced the Defendant to twenty-two years each on two aggravated robbery convictions. The trial court ordered that the Defendant serve these two sentences consecutively. The Defendant’s remaining sentences were ordered to be served concurrently, resulting in a total effective sentence of forty-four years. The sole issue presented for our review is whether the trial court erred when it imposed partial consecutive sentences. Following our review, we conclude that the trial court abused its discretion when it imposed partial consecutive sentences, and the judgments of the trial court are, therefore, reversed.

Knox County Court of Criminal Appeals 09/30/15
State of Tennessee v. Perry L. McCrobey
E2014-01953-CCA-R3-CD
Authoring Judge: Judge Thomas T. Woodall
Trial Court Judge: Judge Rebecca J. Stern

Defendant, Perry L. McCrobey, appeals from the trial court’s summary dismissal of his motion filed pursuant to Tennessee Rule of Criminal Procedure 36.1. The State concedes that the trial court erred by summarily dismissing Defendant’s motion. Following our review of the parties’ briefs, the record, and the applicable law, we reverse the trial court’s order dismissing the motion and remand for appointment of counsel if Defendant is indigent and for other proceedings pursuant to Tennessee Rule of Criminal Procedure 36.1.

Hamilton County Court of Criminal Appeals 09/29/15
State of Tennessee v. Ashley Marie Pretzer
M2014-02127-CCA-R3-CD
Authoring Judge: Judge Robert W. Wedemeyer
Trial Court Judge: Judge Franklin Lee Russell

The trial court granted judicial diversion for the Defendant, Ashley Marie Pretzer, on several drug-related charges in an eighteen-count indictment. The Defendant agreed to be on supervised probation for a period of eight years. Two years later, the Defendant’s probation officer filed an affidavit with the trial court alleging that the Defendant had violated the terms of her probation by failing a drug screen. The trial court issued a probation violation warrant, and, thereafter, the police arrested the Defendant for driving under the influence, failing to prove financial responsibility, and possessing drug paraphernalia. The Defendant’s probation officer amended his affidavit to include these new charges. The trial court held a hearing on the Defendant’s alleged probation violations during which she admitted to the violations. The trial court revoked the Defendant’s judicial diversion and sentenced her to serve a sentence of eight years in confinement. On appeal, she contends that the trial court improperly required her to serve the balance of her sentence rather than reinstate her sentence of probation. After a thorough review of the record, we affirm the trial court’s judgment.

Bedford County Court of Criminal Appeals 09/29/15
Robert Winters v. State of Tennessee
E2015-00268-CCA-R3-CD
Authoring Judge: Judge Camille R. McMullen
Trial Court Judge: Judge Rebecca J. Stern

The Petitioner, Robert Winters, appeals the Hamilton County Criminal Court's summary dismissal of his motion to correct an illegal sentence pursuant to Tennessee Rule of Criminal Procedure 36.1. On appeal, the Petitioner argues that the trial court erred by summarily dismissing his motion. Upon review, we affirm the judgment of the trial court.

Hamilton County Court of Criminal Appeals 09/29/15