Court of Criminal Appeals Opinions

Format: 11/22/2017
Format: 11/22/2017
State of Tennessee v. Eric Milon
W2016-01707-CCA-R3-CD
Authoring Judge: Judge Robert W. Wedemeyer
Trial Court Judge: Judge Paula Skahan

A Shelby County jury convicted the Defendant, Eric Milon, of being a felon in possession of a firearm and of being a felon in possession of a handgun. The trial court merged the two convictions and sentenced the Defendant to five years of incarceration. On appeal, the Defendant contends that the trial court erred when it denied his motion to suppress evidence seized during a stop and search of the Defendant and when it admitted inadmissible hearsay. After a thorough review of the record and relevant authorities, we affirm the trial court’s judgment.

Shelby County Court of Criminal Appeals 10/19/17
State of Tennessee v. James William Mabe
M2016-02096-CCA-R3-CD
Authoring Judge: Judge Robert H. Montgomery, Jr.
Trial Court Judge: Judge Larry B. Stanley
The Defendant, James William Mabe, was found guilty by a Warren County Circuit Court jury of three counts of attempted rape of a child, a Class B felony, and three counts of aggravated sexual battery, a Class B felony. See T.C.A. §§ 39-13-522 (2014) (child rape); 39-12-101 (2014) (attempt); 39-13-504 (2014) (aggravated sexual battery). The trial court merged the attempted child rape convictions with the aggravated sexual battery convictions and imposed eleven-year sentences for each conviction. The court ordered partial consecutive sentences, for an effective twenty-two-year sentence at 100% service. On appeal, the Defendant contends that (1) the evidence is insufficient to support his convictions, (2) the trial court erred by failing to require the State to make an election of the offenses, (3) the trial court erred by failing to instruct the jury on the lesser included offenses of child rape; and (4) his sentence is excessive. We affirm the judgments of the trial court.
 
Warren County Court of Criminal Appeals 10/18/17
State of Tennessee v. Lamantez Desha Robinson
M2016-02335-CCA-R3-CD
Authoring Judge: Judge Robert L. Holloway, Jr.
Trial Court Judge: Judge J. Randall Wyatt, Jr.
Lamantez Desha Robinson (“the Defendant”) was convicted by a Davidson County jury of attempted second degree murder and sentenced to twelve years’ incarceration. In this direct appeal, the Defendant contends that the trial court erred in admitting into evidence a Facebook photograph of the Defendant posing with two handguns and that the evidence submitted at trial was insufficient to support his conviction. Discerning no error, we affirm the judgment of the trial court.
 
Davidson County Court of Criminal Appeals 10/18/17
Carroll Crews v. State of Tennessee
W2017-00578-CCA-R3-PC
Authoring Judge: Judge Camille R. McMullen
Trial Court Judge: Judge R. Lee Moore, Jr.

The Petitioner, Carroll Crews, appeals from the denial of post-conviction relief by the Dyer County Circuit Court. In this appeal, she argues that she received ineffective assistance of counsel. Upon our review, we affirm the judgment of the post-conviction court.

Dyer County Court of Criminal Appeals 10/16/17
State of Tennessee v. Alan Terry Stein
M2016-01345-CCA-R3-CD
Authoring Judge: Judge Camille R. McMullen
Trial Court Judge: Judge Amanda Jane McClendon

A Davidson County Criminal Court jury convicted the Defendant, Alan Terry Stein, of driving under the influence (DUI) and driving with a blood alcohol concentration of .08 percent or more (DUI per se), and he received a sentence of  eleven months and twenty-nine days, suspended to supervised probation.  On appeal, the Defendant contends that the trial court erroneously instructed the jury and improperly denied his motions for special jury instructions.  Upon review, we affirm the judgments of the trial court.  However, we remand the case for entry of a judgment form as to count one reflecting that the Defendant’s DUI conviction was merged with count two.   

Davidson County Court of Criminal Appeals 10/16/17
State of Tennessee v. Billy Joe Nelson
M2016-00010-CCA-R3-CD
Authoring Judge: Judge Robert L. Holloway, Jr.
Trial Court Judge: Judge Paul G. Summers

Following a trial, a Coffee County jury found the Defendant, Billy Joe Nelson, guilty of aggravated rape, carjacking, robbery, and two counts of aggravated kidnapping.  The trial court sentenced the Defendant to a total effective sentence of thirty years in the Department of Correction.  On appeal, the Defendant challenges whether the State sufficiently proved his identity as the perpetrator of the offenses.  Upon review, we affirm the judgments of the trial court.  

Coffee County Court of Criminal Appeals 10/16/17
State of Tennessee v. Vincent D. Clark
M2016-02101-CCA-R3-CD
Authoring Judge: Judge James Curwood Witt, Jr.
Trial Court Judge: Judge William R.Goodman III

In this appeal as of right, the State challenges the Montgomery County Circuit Court’s dismissal of a probation revocation warrant as untimely.  Because the probationary period of the defendant, Vincent D. Clark, had not expired at the time of the filing of the revocation warrant, the trial court erred in its dismissal.  Accordingly, we vacate the trial court’s judgment and remand for a new hearing.

Montgomery County Court of Criminal Appeals 10/16/17
State of Tennessee v. Stephen Alexander Lyczkowski
M2016-02273-CCA-R3-CD
Authoring Judge: Judge Camille R. McMullen
Trial Court Judge: Judge David L. Allen

The Defendant, Stephen Alexander Lyczkowski, entered a guilty plea in the Maury County Circuit Court to domestic aggravated assault with the length of the sentence to be determined by the trial court.  Following a hearing, the trial court imposed a sentence of ten years.  On appeal, the sole issue presented for our review is whether the trial court imposed an excessive sentence.  The judgment of the trial court is affirmed.

Maury County Court of Criminal Appeals 10/16/17
State of Tennessee v. Dennis Miller
M2016-02302-CCA-R3-CD
Authoring Judge: Judge John Everett Williams
Trial Court Judge: Judge David A. Patterson
The Defendant, Dennis Gregory Miller, entered a guilty plea to reckless aggravated assault, a Class D felony, with the punishment to be determined by the trial court. The Defendant requested judicial diversion and a sentence to be served on probation. After a hearing, the trial court denied diversion and imposed a two-year sentence, with sixty days to be served incarcerated and the remainder on probation. The Defendant appeals, asserting that the trial court abused its discretion. After a thorough review of the record, we affirm the judgment of the trial court.
 
White County Court of Criminal Appeals 10/13/17
State of Tennessee v. Kandi Sue Gaines
M2016-02515-CCA-R3-CD
Authoring Judge: Judge Robert H. Montgomery, Jr.
Trial Court Judge: Judge J. Russell Parkes

The Defendant, Kandi Sue Gaines, was convicted at a Lawrence County Circuit Court bench trial of shoplifting property valued at $500 or less, a Class A misdemeanor, for which she is serving an eleven-month, twenty-nine-day sentence on probation.  See T.C.A. § 39-14-146 (2014) (amended 2017) (theft of property involving merchandise).  On appeal, she contends that the evidence is insufficient to support her conviction.  We affirm the judgment of the trial court.

Lawrence County Court of Criminal Appeals 10/13/17
Randy A. Rice v. State of Tennessee
W2016-02592-CCA-R3-PC
Authoring Judge: Judge Timothy L. Easter
Trial Court Judge: Judge Kyle Atkins

Petitioner, Randy A. Rice, appeals the denial of his petition seeking post-conviction relief from his convictions for felony murder and facilitation of especially aggravated robbery. Petitioner argues that he received ineffective assistance of both trial and appellate counsel. Upon our review of the record, we affirm the judgment of the post-conviction court.

Madison County Court of Criminal Appeals 10/12/17
State of Tennessee v. Gregory Ricardo McDonald, III
M2015-02004-CCA-R3-CD
Authoring Judge: Judge D. Kelly Thomas, Jr.
Trial Court Judge: Judge Vanessa A. Jackson

Following a bench trial, the Defendant, Gregory Ricardo McDonald III, was convicted of one count of criminal impersonation, a Class B misdemeanor; two counts of forgery of $500 or less, a Class E felony; and one count of identity theft, a Class D felony.  See Tenn. Code Ann. §§ 39-14-105, -14-114, -14-150, -16-301 (2012).  The trial court subsequently imposed a total effective sentence of twelve years.  In this appeal as of right, the Defendant contends (1) that the evidence was insufficient to sustain his convictions and (2) that his statement to police should have been excluded because “there was not an adequate waiver executed in acknowledgement of his” Miranda v. Arizona, 384 U.S. 436 (1966), warnings.  Discerning no error, we affirm the judgments of the trial court.

Coffee County Court of Criminal Appeals 10/12/17
State of Tennessee v. Scottie Lee Mofield
M2016-02364-CCA-R3-CD
Authoring Judge: Judge Robert H. Montgomery, Jr.
Trial Court Judge: Judge Steve R. Dozier

The Defendant, Scottie Lee Mofield, was found guilty by a Davidson County Criminal Court jury of aggravated assault, a Class C felony.  See T.C.A. § 39-13-102 (2014) (amended 2015, 2016, 2017).  The trial court sentenced the Defendant as a Range II, multiple offender to eight years’ confinement and ordered his sentence to be served consecutively to a sentence in an unrelated case.  On appeal, the Defendant contends that the trial court erred (1) during sentencing and (2) by denying his motion for a new trial on the basis of newly discovered evidence.  We affirm the judgment of the trial court.  

Davidson County Court of Criminal Appeals 10/10/17
Marquize Berry v. State of Tennessee
W2016-02344-CCA-R3-PC
Authoring Judge: Judge J. Ross Dyer
Trial Court Judge: Judge J. Robert Carter, Jr.

The petitioner, Marquize Berry, appeals the denial of his post-conviction petition, arguing trial counsel’s failure to file a pre-trial motion regarding video evidence of the crime pursuant to State v. Ferguson, 2 S.W.3d. 912 (Tenn. 1999), was ineffective. Following our review, we affirm the denial of the petition.

Shelby County Court of Criminal Appeals 10/10/17
State of Tennessee v. Montrekus Lamon Tiller
W2017-00093-CCA-R3-CD
Authoring Judge: Judge Timothy L. Easter
Trial Court Judge: Judge J. Weber McCraw

Defendant, Montrekus Lamon Tiller, was convicted of aggravated assault. He received a sentence of six years’ incarceration to be suspended after 350 days. On appeal, he argues that the evidence was insufficient to support his conviction. After review, we find that the evidence was sufficient to support his conviction. The judgment of the trial court is affirmed.

Hardeman County Court of Criminal Appeals 10/09/17
State of Tennessee v. John Brichetto
E2017-01033-CCA-R3-CD
Authoring Judge: Judge D. Kelly Thomas, Jr.
Trial Court Judge: Judge Paul G. Summers

The pro se appellant appeals as of right from the Morgan County Criminal Court's order denying post-judgment motions filed pursuant to Tennessee Rule of Criminal Procedure "36 et seq." The trial court summarily denied the pleadings based upon the pro se appellant's earlier execution of a waiver of all direct, post-conviction, and collateral challenges to the conviction, in exchange for his codefendant-wife's receiving a more lenient sentence. Because this court has twice ruled that the waiver was knowingly and voluntarily entered, we sua sponte affirm the judgment of the trial court pursuant to Rule 20 of the Tennessee Rules of the Court of Criminal Appeals.

Morgan County Court of Criminal Appeals 10/09/17
State of Tennessee v. Richard Adrian Vaughn
E2016-02357-CCA-R3-CD
Authoring Judge: Judge Robert W. Wedemeyer
Trial Court Judge: Judge Stacy L. Street

The Defendant, Richard Adrian Vaughn, pleaded guilty to one count of hindering a secured creditor, one count of writing a worthless check, and four counts of theft. The trial court ordered the Defendant to serve an agreed upon five-year sentence, suspended to six years of probation. In December 2015 and May 2016, probation violation reports were filed with the trial court based upon multiple alleged violations. After a hearing, the trial court revoked the Defendant’s probation for absconding and testing positive for drugs. On appeal, the Defendant asserts that the trial court abused its discretion in revoking his probation. We affirm the trial court’s revocation.

Washington County Court of Criminal Appeals 10/06/17
State of Tennessee v. Joshua Hunter Bargery
W2016-00893-CCA-R3-CD
Authoring Judge: Judge Robert L. Holloway, Jr.
Trial Court Judge: Judge R. Lee Moore, Jr.

Joshua Hunter Bargery (“the Defendant”) appeals his Lake County Circuit Court convictions for two counts of first degree felony murder and two counts of especially aggravated robbery, for which he received a total effective sentence of two consecutive life sentences. On appeal, the Defendant contends that: (1) his rights under the Fourth Amendment of the United States Constitution and Article I, section 7 of the Tennessee Constitution were violated by the trial court’s denial of his motions to suppress evidence obtained during the search of the Defendant and his automobile; (2) the trial court erroneously excluded as hearsay the Defendant’s testimony regarding statements made by Mr. Hill, Mr. Hernandez, and “the three Mexicans”; (3) the trial court erred in excluding relevant and material testimony from the Defendant’s crime scene expert; (4) the Defendant is entitled to a new trial based on prosecutorial misconduct; (5) the trial court erred in denying the Defendant’s motion to dismiss the indictment based on law enforcement’s intentional destruction of exculpatory evidence; (6) the Defendant’s due process rights were violated by the State’s failure to disclose Mr. Hernandez’s complete criminal record and the State’s agreement not to treat him as a “suspect”; (7) the trial court erred by admitting a copy of a letter written by the Defendant, which was not produced by the State during discovery; (8) the trial court erred in its instructions to the jury; (9) the evidence was insufficient to support his convictions; (10) the trial court erred when it imposed consecutive sentences; (11) the trial court erred in denying the Defendant’s motion for recusal; (12) the Defendant is entitled to a new trial based on violations of the trial court’s order of sequestration; and (13) cumulative error deprived the Defendant of due process and a fair trial. Following a thorough review of the record and applicable law, we reverse the judgments of the trial court and remand for a new trial.

Lake County Court of Criminal Appeals 10/06/17
Stephen Nathan Clark, II v. State of Tennessee
M2016-01209-CCA-R3-PC
Authoring Judge: Presiding Judge Thomas T. Woodall
Trial Court Judge: Judge Cheryl A. Blackburn

Petitioner, Stephen Nathan Clark, II, was indicted in case number 2011-D-2935 by the Davidson County Grand Jury for conspiracy to sell 300 pounds or more of marijuana and 300 grams or more of cocaine in a drug-free school zone. Petitioner was subsequently indicted in case number 2012-A-24 for possession with intent to sell or deliver not less than 0.5 ounces nor more than 10 pounds of marijuana in a drug-free school zone and possession with intent to sell or deliver 26 grams or more of cocaine in a drug-free school zone. Petitioner entered guilty pleas in both cases to conspiracy to sell 26 grams or more of cocaine and possession with intent to deliver 26 grams or more of cocaine. Petitioner agreed to serve 13 years in confinement as a multiple offender. Petitioner filed a petition for post-conviction relief, alleging that he received the ineffective assistance of counsel and that his pleas were unknowingly and involuntarily entered. Following an evidentiary hearing, the post-conviction court denied relief, and after review, we affirm the post-conviction court’s judgment.

Davidson County Court of Criminal Appeals 10/06/17
Tyler James Schaeffer v. State of Tennessee
E2016-01614-CCA-R3-PC
Authoring Judge: Judge Timothy L. Easter
Trial Court Judge: Judge Rex H. Ogle

This case should serve as a cautionary tale for any prosecutor, defense attorney, or trial court who attempts to negotiate or accept a guilty plea involving concurrent state and federal sentencing. Petitioner, Tyler James Schaeffer, pled guilty to two counts of vehicular homicide, two counts of aggravated assault, nine counts of vehicular assault, and one count of possession of a controlled substance analogue. He received an effective sentence of forty years to be served concurrently with a separate 100-year federal sentence. Now, Petitioner appeals the denial of his petition for post-conviction relief, arguing the post-conviction court erred in finding that he received effective assistance of counsel due to trial counsel’s failure to retain a mental health expert, failure to request a change of venue, failure to properly investigate potential witnesses, and failure to adequately explain concurrent state and federal sentencing. The State concedes that Petitioner received ineffective assistance of counsel based on the sentencing issue alone. Following our review of the record and submissions of the parties, the majority concludes that Petitioner received ineffective assistance of counsel. Accordingly, we reverse the judgment of the post-conviction court.

Sevier County Court of Criminal Appeals 10/06/17
State of Tennessee v. Bennie Edward Jackson, Jr. a/k/a Benny E. Jackson, Jr.
M2016-02575-CCA-R3-CD
Authoring Judge: Judge Robert W. Wedemeyer
Trial Court Judge: Judge Cheryl A. Blackburn
A Davidson County jury convicted the Defendant, Bennie Edward Jackson, Jr., of aggravated assault, and the trial court sentenced him to serve eight years of incarceration. On appeal, the Defendant contends that: (1) the evidence is insufficient to sustain his conviction; (2) he was subject to an unfair trial because the jury pool heard substantially prejudicial comments during voir dire; and (3) a State’s witness presented inflammatory and substantially prejudicial testimony to the jury that should have been prohibited. After review, we affirm the trial court’s judgment.
 
Davidson County Court of Criminal Appeals 10/05/17
State of Tennessee v. Dexter Dewayne Alcorn
M2016-01678-CCA-R3-CD
Authoring Judge: Judge Alan E. Glenn
Trial Court Judge: Judge William R. Goodman, III
The pro se Defendant, Dexter Dewayne Alcorn, appeals the trial court’s dismissal of his motion to withdraw his guilty pleas. The notice of appeal was not timely filed, and, accordingly, we dismiss the appeal.
 
Montgomery County Court of Criminal Appeals 10/05/17
State of Tennessee v. Christopher Terrell Shipp
M2016-01397-CCA-R3-CD
Authoring Judge: Judge John Everett Williams
Trial Court Judge: Judge Seth W. Norman

The Defendant, Christopher Terrell Shipp, was convicted by a jury of one count of criminally negligent homicide, one count of felony murder, two counts of attempted aggravated robbery, and one count of attempted second degree murder, and he received an aggregate sentence of life in prison. The surviving victim of the crimes identified the Defendant as the perpetrator during her testimony at the preliminary hearing, but she died of natural causes prior to trial. The recorded testimony from the preliminary hearing was used to establish the identity of the Defendant at trial. The Defendant appeals his convictions, arguing that the evidence was insufficient to uphold the verdicts and that the victim’s testimony was admitted in error because at the time of the preliminary hearing, he had not had access to a police report which could have impeached her testimony. After a thorough review of the record, we conclude that the evidence is sufficient to uphold the verdicts and that the testimony was properly admitted, and we affirm the trial court’s judgments. We remand for merger of the criminally negligent homicide conviction into the felony murder conviction.

Davidson County Court of Criminal Appeals 10/05/17
State of Tennessee v. Jamarius Deon Gant
W2016-02482-CCA-R3-CD
Authoring Judge: Judge Robert H. Montgomery, Jr.
Trial Court Judge: Judge Kyle C. Atkins

The Defendant, Jamarius Deon Gant, was convicted by a Madison County Circuit Court jury of aggravated robbery, a Class B felony, aggravated kidnapping, a Class B felony, and facilitation of burglary of a vehicle, a Class A misdemeanor. See T.C.A. §§ 39-13-402 (2014) (aggravated robbery), 39-13-304 (2014) (aggravated kidnapping), 39-11-403 (2014) (facilitation of a felony), 39-14-402 (2014) (burglary of a vehicle). The Defendant also pleaded guilty to two counts of possession of a handgun by a convicted felon. See T.C.A. §§ 39-17-1307 (2014) (amended 2017). The trial court sentenced the Defendant as a Range I, standard offender to consecutive nine-year terms for the aggravated robbery and aggravated kidnapping convictions. The Defendant received concurrent sentences of four years for the firearm convictions and eleven months, twentynine days for the facilitation of burglary of a vehicle, for an effective eighteen years’ confinement. On appeal, the Defendant contends that (1) the evidence is insufficient to support a conviction for aggravated kidnapping, and (2) the trial court erred during sentencing. We affirm the judgments of the trial court.

Madison County Court of Criminal Appeals 10/05/17
Demarcus Jones v. State of Tennessee
W2017-00303-CCA-R3-PC
Authoring Judge: Judge Robert H. Montgomery, Jr.
Trial Court Judge: Judge J. Robert Carter, Jr.

The Petitioner, Demarcus Jones, appeals the Shelby County Criminal Court’s denial of his petition for post-conviction relief from his 2015 guilty pleas in case number 14-02150 to especially aggravated robbery, attempted first degree murder, employing a firearm during the commission of a dangerous felony, aggravated burglary, theft of property, and setting fire to property and in case number 14-02151 to especially aggravated robbery, attempted first degree murder, and employment of a firearm during the commission of a dangerous felony, and his effective forty-year sentence. The Petitioner contends that he received the ineffective assistance of counsel and that his guilty pleas were unknowingly and involuntarily entered. We affirm the judgment of the post-conviction court.

Shelby County Court of Criminal Appeals 10/05/17