Court of Criminal Appeals Opinions

Format: 04/24/2018
Format: 04/24/2018
State of Tennessee v. Lavely L. Brown
E2016-02099-CCA-R3-ECN
Authoring Judge: Judge Alan E. Glenn
Trial Court Judge: Judge Steven W. Sword

The Petitioner, Lavely L. Brown, appeals the denial of his petition for writ of error coram nobis. Following our review, we affirm the judgment of the coram nobis court denying the petition.

Knox County Court of Criminal Appeals 11/09/17
State of Tennessee v. Charles Timothy Krauss, Alias
E2016-02329-CCA-R3-CD
Authoring Judge: Judge Alan E. Glenn
Trial Court Judge: Judge Bob R. McGee

The Defendant, Charles Timothy Krauss, alias, pled guilty to two counts of theft of property valued at $10,000 or more but less than $60,000 and received a total effective sentence of ten years as a Range III, persistent offender. He applied for but was denied probation. Additionally, the trial court denied his request for pretrial jail credits for the time he had spent in confinement in Mississippi. He filed a Tennessee Rule of Criminal Procedure 33 motion requesting jail credits for the period from January 9, 2013, to February 9, 2016. According to the Defendant, he was entitled to the credits because he had requested, pursuant to the Interstate Compact on Detainers, that he be transferred to Tennessee to answer to the Knox County charges. The trial court denied the motion, and we affirm that denial.

Knox County Court of Criminal Appeals 11/09/17
State of Tennessee v. Brandon Lee Clymer
M2016-01124-CCA-R3-CD
Authoring Judge: Judge Robert H. Montgomery, Jr.
Trial Court Judge: Judge Steve R. Dozier

The Defendant, Brandon Lee Clymer, was convicted of rape of a child by a Davidson County Criminal Court jury. He is serving a twenty-six-year, Range II sentence. On appeal, he contends that: (1) the evidence is insufficient to support his conviction, (2) the trial court erred in admitting evidence of the victim’s forensic interview, (3) the trial court erred in admitting the Defendant’s pretrial statement without redacting opinions expressed by police officers, (4) the trial court erred in overruling the Defendant’s objection to the State’s rebuttal closing argument, (5) he is entitled to a new trial due to cumulative trial error, and (6) the trial court imposed an unconstitutional and excessive sentence. We affirm the judgment of the trial court.

Davidson County Court of Criminal Appeals 11/09/17
Charles D. Belk v. State of Tennessee
W2017-00700-CCA-R3-PC
Authoring Judge: Judge Norma McGee Ogle
Trial Court Judge: Judge Jeff Parham

The Petitioner, Charles D. Belk, appeals the Obion County Circuit Court’s denial of his petition for post-conviction relief from his convictions of introducing a controlled substance into a penal institution, a Class C felony; Class C felony unlawful possession of a weapon; Class D felony unlawful possession of a weapon; possessing marijuana with intent to sell or deliver, a Class E felony; and simple possession, a Class A misdemeanor, and resulting effective sentence of twelve years in confinement. On appeal, the Petitioner claims that he received the ineffective assistance of trial and appellate counsel. Based upon the record and the parties’ briefs, we affirm the judgment of the post-conviction court.

Obion County Court of Criminal Appeals 11/08/17
State of Tennessee v. Taris C. Frazier
M2016-02397-CCA-R3-CD
Authoring Judge: Judge Alan E. Glenn
Trial Court Judge: Judge David M. Bragg

The Defendant, Taris C. Frazier, was convicted by a Rutherford County Circuit Court jury of three counts of especially aggravated kidnapping, Class A felonies; three counts of aggravated assault, Class C felonies; resisting arrest, a Class B misdemeanor; and criminal impersonation, a Class B misdemeanor. He was sentenced to an effective term of seventy-five years in the Tennessee Department of Correction, to be served consecutively to his sentence in another case. On appeal, he challenges the sufficiency of the evidence convicting him of especially aggravated kidnapping and aggravated assault. After review, we affirm the judgments of the trial court.

Rutherford County Court of Criminal Appeals 11/08/17
State of Tennessee v. Zachary Michael Johnson
M2016-01479-CCA-R3-CD
Authoring Judge: Judge Alan E. Glenn
Trial Court Judge: Judge Cheryl A. Blackburn

The Defendant, Zachary Michael Johnson, was indicted for five counts of rape by force or coercion, a Class B felony, all involving the same victim and occurring over a short period of time. The jury convicted him of the lesser offense of sexual battery, a Class E felony, in two counts of the indictment and acquitted him of the remaining three counts of the indictment. The trial court subsequently sentenced him as Range I, standard offender to concurrent terms of two years for each conviction, suspended to three years of supervised probation. On appeal, the Defendant challenges the sufficiency of the convicting evidence and argues that the trial court committed plain error by not instructing the jury on the lesser-included offense of assault by extremely offensive or provocative physical contact. Following our review, we conclude that the evidence is sufficient to sustain the convictions but that the trial court erred in not instructing the jury as to the lesser-included offense. Accordingly, we reverse the judgments of conviction and remand for a new trial.

Davidson County Court of Criminal Appeals 11/03/17
Phillip Alexander McWilliams v. State of Tennessee
E2017-00275-CCA-R3-PC
Authoring Judge: Judge Timothy L. Easter
Trial Court Judge: Judge Walter C. Kurtz

Petitioner, Phillip Alexander McWilliams, appeals the denial of his petition for post-conviction relief from his convictions for aggravated domestic assault and reckless endangerment with a deadly weapon. Petitioner argues that he received ineffective assistance of counsel. After a review of the record and the briefs of the parties, we determine Petitioner has failed to establish that he received ineffective assistance of counsel. Accordingly, the judgment of the post-conviction court is affirmed.

Sevier County Court of Criminal Appeals 11/02/17
State of Tennessee v. D'Maris LaQuann Fuller
M2016-00412-CCA-R3-CD
Authoring Judge: Judge Norma McGee Ogle
Trial Court Judge: Judge Cheryl A. Blackburn

A Davidson County Criminal Court Jury convicted the Appellant, D’Maris Laquann Fuller, of aggravated robbery. The trial court sentenced the Appellant as a Range I, standard offender to ten years in the Tennessee Department of Correction. On appeal, the Appellant contends that the trial court erred by refusing to allow him to play a recording of a 911 call, that the evidence was insufficient to sustain his conviction, and that the trial court erred when determining the length of his sentence. Upon review, we affirm the judgment of the trial court.

Davidson County Court of Criminal Appeals 11/01/17
State of Tennessee v. Tommy Lee Houser, Jr.
E2017-00987-CCA-R3-CD
Authoring Judge: Judge Robert W. Wedemeyer
Trial Court Judge: Judge Steven W. Sword

A Knox County jury convicted the Defendant, Tommy Lee Houser, Jr., of felony theft. After a sentencing hearing, the trial court classified the Defendant as a career offender and imposed a mandatory twelve year sentence. On appeal, the Defendant asserts that the evidence supporting his conviction is insufficient and that the trial court erred in applying the Class D felony offense classification rather than the “new” Class E felony offense classification. After review, we affirm the trial court’s judgment.

Knox County Court of Criminal Appeals 11/01/17
Matthew B. Foley v. State of Tennessee
M2016-02456-CCA-R3-PC
Authoring Judge: Judge Robert L. Holloway, Jr.
Trial Court Judge: Judge David M. Bragg

Matthew B. Foley, the Petitioner, filed a petition for post-conviction relief thirteen years after he entered a guilty plea; he argued that the statute of limitations should be tolled on due process grounds and that the State had breached a material element of his plea agreement. The post-conviction court summarily dismissed the petition on the ground that the statute of limitations should not be tolled. On appeal, this court held that the statute of limitations should be tolled based on due process grounds and remanded the case for an evidentiary hearing on the merits. Matthew B. Foley v. State, No. M2015-00311-CCA-R3-PC, 2016 WL 245857, at *8 (Tenn. Crim. App. Jan. 20, 2016), no perm. app. filed. On remand, the post-conviction court again denied relief on the ground that the statute of limitations should not be tolled based on due process. We again reverse and remand this case for an evidentiary hearing on the merits of the post-conviction relief petition.

Rutherford County Court of Criminal Appeals 11/01/17
State of Tennessee v. Courtney Fifer
W2016-00713-CCA-R3-CD
Authoring Judge: Presiding Judge Thomas T. Woodall
Trial Court Judge: Judge John Wheeler Campbell

Following a jury trial, Defendant, Courtney Fifer, was convicted of first degree murder, attempted robbery, and being a felon in possession of a handgun. He was sentenced to life for first degree murder, two years for attempted robbery, and one year for being a felon in possession of a handgun. On appeal, Defendant argues that his right to a fair trial was violated because the trial court improperly restricted his closing argument, and the prosecutor misstated evidence during closing argument. After a thorough review of the record, we affirm the judgments of the trial court.

Shelby County Court of Criminal Appeals 10/31/17
State of Tennessee v. Joey Tyrone Simpson
M2016-01962-CCA-R3-CD
Authoring Judge: Judge Alan E. Glenn
Trial Court Judge: Judge J. Russell Parkes

The Defendant, Joey Tyrone Simpson, entered an open guilty plea to aggravated assault, a Class C felony, and was sentenced as a Range I, standard offender to three years in the Department of Correction. Additionally, he was ordered to pay $2880 in restitution for the victim’s medical expenses. On appeal, he argues that he should have been granted alternative sentencing. Following our review, we affirm the judgment of the trial court but remand for entry of a corrected judgment to reflect the amount of restitution as $2880, rather than $2280.

Lawrence County Court of Criminal Appeals 10/31/17
State of Tennessee v. Marvis Deshun Pollard
W2016-01788-CCA-R3-CD
Authoring Judge: Judge John Everett Williams
Trial Court Judge: Judge Joe H. Walker, III

A Tipton County jury convicted the Defendant, Marvis Deshun Pollard, of possession of 0.5 grams or more of methamphetamine with the intent to deliver; delivery of 0.5 grams or more of methamphetamine; simple possession of oxycodone; tampering with evidence; felony evading arrest posing a risk of danger to others; and driving on a canceled, suspended, or revoked driver’s license. The trial court imposed an effective sentence of sixteen years. On appeal, the Defendant contends that the evidence is insufficient to support his methamphetamine convictions. Upon reviewing the record and the applicable law, we affirm the judgments of the trial court. We remand the case to the trial court for entry of corrected judgments reflecting merger of the methamphetamine convictions.

Tipton County Court of Criminal Appeals 10/30/17
State of Tennessee v. Steven Dare Steelman, Jr.
E2017-00016-CCA-R3-CD
Authoring Judge: Judge Robert H. Montgomery, Jr.
Trial Court Judge: Judge Steven W. Sword

The Defendant, Steven Dare Steelman, Jr., was convicted by a Knox County Criminal Court jury of aggravated vehicular homicide, vehicular homicide by intoxication, vehicular homicide by reckless conduct, vehicular assault, reckless endangerment with a deadly weapon, third offense driving under the influence (DUI) per se, third offense DUI, driving on a revoked license after two prior DUI convictions, and failure to provide proof of financial responsibility. See T.C.A. §§ 39-13-218 (2014) (aggravated vehicular homicide), 39-13-213 (2014) (amended 2015) (vehicular homicide by intoxication or vehicular homicide by reckless conduct), 39-13-106 (2014) (amended 2015) (vehicular assault), 39-13-103 (Supp. 2014) (amended 2015) (reckless endangerment with a deadly weapon), 55-10-401 (2012) (amended 2013, 2015) (third offense DUI per se), 55-10-401 (2012) (amended 2013, 2015) (third offense DUI), 55-50-504 (2012) (amended 2016) (driving on a revoked license after two prior DUI convictions), 55-12-139 (Supp. 2014) (amended 2015) (failure to provide proof of financial responsibility). The trial court merged the vehicular homicide by intoxication and vehicular homicide by reckless conduct convictions with the aggravated vehicular homicide conviction. The court merged the third offense DUI conviction with the third offense DUI per se conviction. The court sentenced the Defendant to an effective thirty-two years’ confinement. On appeal, the Defendant contends that (1) the evidence is insufficient to support his convictions for aggravated vehicular homicide and vehicular assault, (2) the trial court should have merged the reckless endangerment with a deadly weapon and vehicular assault convictions, and (3) the trial court erred during sentencing. Although we affirm the Defendant’s convictions, we remand the case to the trial court for the entry of corrected judgments reflecting the merger of the third offense DUI per se conviction with the vehicular assault conviction.

Knox County Court of Criminal Appeals 10/30/17
State of Tennessee v. Sterling Lamar Cooper
E2017-00232-CCA-R3-CD
Authoring Judge: Judge Camille R. McMullen
Trial Court Judge: Judge Jeffery H. Wicks

The Petitioner, Sterling Lamar Cooper, appeals the Roane County Criminal Court’s denial of his motion to correct an illegal sentence pursuant to Tennessee Rule of Criminal Procedure 36.1. He argues that his effective twenty-four-year sentence, which included service of a nine-year community corrections sentence that was never revoked, is illegal. We affirm the trial court’s denial of the motion but remand the case for correction of clerical errors in the judgments of conviction.

Roane County Court of Criminal Appeals 10/27/17
Antoine Cardet Smith v. State of Tennessee
M2017-00060-CCA-R3-PC
Authoring Judge: Judge Camille R. McMullen
Trial Court Judge: Judge William R.Goodman III

The Petitioner, Antoine Cardet Smith, appeals from the denial of post-conviction relief by the Montgomery County Circuit Court.  In this appeal, he argues that he received ineffective assistance of counsel.  Upon our review, we affirm the judgment of the
post-conviction court.

Montgomery County Court of Criminal Appeals 10/26/17
State of Tennessee v. Benjamin Gunn
W2016-00338-CCA-R3-CD
Authoring Judge: Presiding Judge Thomas T. Woodall
Trial Court Judge: Judge W. Mark Ward

Defendant, Benjamin Gunn, was convicted of unlawful possession of cocaine with intent to sell, unlawful possession of cocaine with intent to deliver, and third offense unlawful possession of marijuana. The trial court merged the two cocaine convictions and imposed a sentence of twelve years. Defendant was sentenced to two years for possession of marijuana to be served consecutively to the possession of cocaine conviction for an effective fourteen-year sentence. On appeal, Defendant raises the following issues: (1) whether the evidence was sufficient to support his convictions for unlawful possession of cocaine with intent to sell and unlawful possession of cocaine with intent to deliver; (2) whether the trial court erred by allowing testimony concerning prior search warrants; (3) whether Defendant was properly sentenced for third offense possession of marijuana; (4) whether the trial court erred by allowing the State’s expert witness to testify concerning the characteristics of a drug dealer; (5) whether the State committed prosecutorial misconduct; (6) whether the trial court improperly commented on the legality of the search warrant; and (7) cumulative error. After a thorough review of the record, we affirm the judgments of the trial court.

Shelby County Court of Criminal Appeals 10/26/17
State of Tennessee v. David Sharp
M2016-01072-CCA-R3-CD
Authoring Judge: Judge Norma McGee Ogle
Trial Court Judge: Judge Robert L. Jones

A Maury County Circuit Court Jury convicted the Appellant, David Sharp, of evading arrest, a Class E felony, and driving on a revoked license, a Class B misdemeanor. After a sentencing hearing, he received an effective eighteen-month sentence to be served as ninety days in jail and the remainder on supervised probation. On appeal, the Appellant contends that the trial court erred by allowing the State to introduce a photograph into evidence to rebut a defense witness’s testimony and that the evidence is insufficient to support the convictions. Based upon the oral arguments, the record, and the parties’ briefs, we conclude that the trial court erred by admitting the photograph and that the error was not harmless. Therefore, the Appellant’s convictions are reversed, and the case is remanded to the trial court for further proceedings consistent with this opinion.

Maury County Court of Criminal Appeals 10/24/17
State of Tennessee v. Joshua Iceman
M2016-00975-CCA-R3-CD
Authoring Judge: Judge D. Kelly Thomas, Jr.
Trial Court Judge: Judge David A. Patterson

The Defendant, Joshua Iceman, was convicted by a jury of aggravated child abuse and first degree felony murder, for which he received concurrent terms of eighteen years and life imprisonment, respectively. The Defendant appeals, arguing (1) that his statement at the hospital resulted from custodial interrogation given without proper Miranda warnings and, therefore, that statement should have been suppressed; (2) that the State experts’ testimony on “shaken-baby syndrome and/or non-accidental trauma” was not sufficiently reliable to warrant its admission; (3) that the evidence was insufficient to support his convictions because the jury was faced with conflicting expert testimony; and (4) that the trial court erred in enhancing his sentencing term for his aggravated child abuse conviction above the minimum in the Class A felony range. Following our review of the record, we affirm the judgments of the trial court.

White County Court of Criminal Appeals 10/24/17
Joshua Paul Lewis v. State of Tennessee
E2016-01993-CCA-R3-PC
Authoring Judge: Judge Robert W. Wedemeyer
Trial Court Judge: Judge David A. Patterson

A Cumberland County jury convicted the Petitioner, Joshua Paul Lewis, of two counts of rape of a child and one count of attempted rape of a child, and the trial court sentenced him to serve an effective sentence of twenty-five years. This court affirmed the Petitioner’s convictions and sentence. State v. Joshua Paul Lewis, No. E2014-00918- CCA-R3-CD, 2015 WL 795856 (Tenn. Crim. App., at Knoxville, Feb. 25, 2015), no Tenn. R. App. P. 11 filed. The Petitioner subsequently filed a petition for post-conviction relief, alleging that he received the ineffective assistance of counsel. The post-conviction court held a hearing on the petition and denied relief. We affirm the post-conviction court’s judgment.

Cumberland County Court of Criminal Appeals 10/23/17
State of Tennessee v. David A. Brimmer
E2017-00720-CCA-R3-CD
Authoring Judge: Judge Robert H. Montgomery, Jr.
Trial Court Judge: Judge Donald R. Elledge

The pro se Appellant, David A. Brimmer, appeals the Anderson County Circuit Court’s order summarily dismissing his motion to correct an illegal sentence. See Tenn. R. Crim. P. 36.1. The State has filed a motion to affirm the trial court’s order pursuant to Tennessee Court of Criminal Appeals Rule 20. Following our review, we conclude that the State’s motion is well-taken and affirm the order of the trial court.

Anderson County Court of Criminal Appeals 10/23/17
David L. Alford v. State of Tennessee
E2017-00436-CCA-R3-ECN
Authoring Judge: Judge James Curwood Witt, Jr.
Trial Court Judge: Judge Bobby R. McGee

The pro se petitioner, David L. Alford, appeals from the Knox County Criminal Court’s judgment summarily dismissing his petition for a writ of error coram nobis. The State has filed a motion to affirm the trial court’s judgment pursuant to Tennessee Court of Criminal Appeals Rule 20. Following our review, we conclude that the State’s position is well-taken and affirm the judgment of the trial court.

Knox County Court of Criminal Appeals 10/23/17
State of Tennessee v. Derrick Richardson
E2016-02293-CCA-R3-ECN
Authoring Judge: Judge Robert L. Holloway, Jr.
Trial Court Judge: Judge Barry A. Steelman

On December 10, 1992, Derrick Richardson, the Petitioner, was convicted of first degree felony murder and sentenced to life. On appeal, this court affirmed the Petitioner’s conviction. See State v. Derrick Richardson, No. 03C01-9305-CR-00165, 1994 WL 247114, at *1 (Tenn. Crim. App. June 9, 1994), perm. app. denied (Tenn. Sept. 12, 1994) (concurring in results only). The Petitioner filed a petition for writ of error coram nobis based on the affidavits of three individuals who claimed that one of the State’s “key witnesses,” LaKeysh Davis, lied about seeing the Petitioner shoot the victim because she was inside her home and could not have seen the location where the shooting occurred. The Petitioner claims that the information provided by the affiants is newly discovered evidence. Following a hearing, the coram nobis court denied coram nobis relief. We affirm. 

Hamilton County Court of Criminal Appeals 10/23/17
State of Tennessee v. Jeffrey W. Tittle
M2016-02006-CCA-R3-CD
Authoring Judge: Judge John Everett Williams
Trial Court Judge: Judge Brody N. Kane

A jury convicted the Defendant, Jeffrey W. Tittle, of attempted aggravated kidnapping and aggravated assault, Class C felonies, for grabbing the victim, placing a knife to her throat, and dragging her approximately twenty feet down a dark driveway into a scrap yard. The Defendant was sentenced to ten years for each offense, to be served consecutively. On appeal, the Defendant challenges the trial court’s decision to introduce a video from the responding officer’s patrol car, the trial court’s decision to permit the jury to view the video more than once, and the trial court’s refusal to merge the offenses based on the principles of double jeopardy and due process. We conclude that there was no error in admitting the video, that there was no error in allowing the jury to view it during deliberations, that double jeopardy principles do not bar dual convictions for attempted aggravated kidnapping and aggravated assault, and that there is no basis to disturb the determination of the jury that any removal or confinement was beyond that necessary to commit the aggravated assault. Accordingly, we affirm the trial court’s judgments. We remand only for the correction of clerical errors in the judgment form.

Wilson County Court of Criminal Appeals 10/23/17
Richard Lloyd Odom v. State of Tennessee
W2015-01742-CCA-R3-PD
Authoring Judge: Judge Norma McGee Ogle
Trial Court Judge: Senior Judge Don R. Ash

The Petitioner, Richard Lloyd Odom, appeals the Shelby County Criminal Court’s denial of his petition for post-conviction relief from his conviction of first degree felony murder and resulting sentence of death. On appeal, the Petitioner contends that he received the ineffective assistance of counsel, raises various issues related to his post-conviction evidentiary hearing, and challenges the imposition of the death penalty. Having discerned no error, we affirm the judgment of the post-conviction court.

Shelby County Court of Criminal Appeals 10/20/17