Court of Criminal Appeals Opinions

Format: 03/29/2015
Format: 03/29/2015
Gregory Glen Phillips v. State of Tennessee
E2014-00544-CCA-R3-PC
Authoring Judge: Judge Robert H. Montgomery, Jr.
Trial Court Judge: Judge Barry A. Steelman

The Petitioner, Gregory Glen Phillips, appeals the Hamilton County Criminal Court’s denial of his petition for post-conviction relief from his 2012 guilty plea to felony reckless endangerment and his two-year sentence. The Petitioner contends that he received the ineffective assistance of counsel and that his guilty plea was unknowingly and involuntarily entered. We affirm the judgment of the post-conviction court.

Hamilton County Court of Criminal Appeals 03/09/15
State of Tennessee v. Rico Vales
W2014-00048-CCA-R3-CD
Authoring Judge: Judge Roger A. Page
Trial Court Judge: Judge Carolyn Wade Blackett

Appellant, Rico Vales, stands convicted of two counts of aggravated assault, Class C felonies, and being a felon in possession of a handgun, a Class E felony. He received concurrent sentences of fifteen years for each aggravated assault conviction and six years for the handgun conviction. Appellant raises two issues for our review: (1) whether the evidence was sufficient to support his conviction of aggravated assault against one of the victims and (2) whether his right to a trial by an impartial jury was violated by pre-trial contact between a juror and one of his witnesses and the prior acquaintance of the juror and that witness. Following our review, we affirm the judgments of the trial court.

Shelby County Court of Criminal Appeals 03/09/15
State of Tennessee v. James Allen Ballew
M2014-00378-CCA-R3-CD
Authoring Judge: Presiding Judge Thomas T. Woodall
Trial Court Judge: Judge Leon C. Burns, Jr.

Defendant, James Allen Ballew, was indicted by the White County Grand Jury for one count of theft of property valued at $10,000 or more but less than $60,000, a Class C felony, from White County Lumber Company.  On January 29, 2013, Defendant entered a guilty plea to theft of property valued at $500 or more but less than $1,000, a Class E felony.  Pursuant to a negotiated plea agreement, Defendant received a two-year sentence to be served on probation and agreed to pay restitution, with the amount to be determined at a subsequent hearing.  A restitution hearing was conducted.  At the conclusion of the hearing, the trial court took the matter under advisement and requested that the State provide the court with a revised pecuniary loss list, including items recovered by the victim.  All that is contained in the transcript from the subsequent hearing is a brief colloquy wherein the trial court said, “we’ve agreed that an order will be submitted on restitution?” and the prosecutor replied, “Yes, your honor.”  The appellate record does not contain a separate order for restitution.  However, an amended judgment was entered, which states that Defendant is ordered to pay restitution in the amount of $11,000 to White County Lumber.  The amended judgment is silent as to the time or manner of payment.  Defendant appeals, arguing that the amount of restitution was unreasonable and unsupported by the evidence and that the trial court did not consider Defendant’s ability to pay restitution.  The State argues that the record is inadequate to allow for appellate review, and therefore, the trial court’s order of restitution should be presumed correct.  We conclude that there is nothing in the record to indicate whether the trial court made a ruling as to the amount of restitution or if an agreement was reached.  Defendant’s ability to pay restitution was apparently not considered by the trial court, and the trial court failed to include the repayment terms on the judgment form.  It is problematic that there is no indication that Defendant’s counsel was present in open court when the trial judge and the prosecutor had their brief colloquy.  Restitution, when appropriate, is just as much an integral part of a sentence as the length of sentence and the manner of service of the sentence.  See T.C.A. § 40-35-104(c)(2).  Thus, there must be something more in the record setting forth restitution other than what is contained in this record.  Moreover, the amended judgment incorrectly states that Defendant was convicted of a Class D felony.  Accordingly, we reverse the judgment of the trial court as to restitution and remand this case for a new restitution hearing and entry of an amended judgment that reflects the amount of restitution and the manner of payment, as well as that Defendant’s conviction offense as a Class E felony.

White County Court of Criminal Appeals 03/09/15
State of Tennessee v. Brian Allen Osborne
M2014-00352-CCA-R3-CD
Authoring Judge: Judge Robert L. Holloway
Trial Court Judge: Judge David Earl Durham

In October 2011, the Macon County Grand Jury indicted Brian Allen Osborne (“the Defendant”) for aggravated arson, a Class A felony.  Following a jury trial, the Defendant was convicted as charged and sentenced to 20 years in the Department of Correction.  In this direct appeal, the Defendant contends:  (1) the trial court erred by ruling that proffered testimony from a defense witness was inadmissible hearsay; (2) the trial court provided misleading and prejudicial jury instructions on the defense of intoxication; (3)  the trial court erroneously instructed the jury that aggravated arson was both a result-of-conduct and nature-of-conduct offense; (4) the evidence was insufficient to sustain his conviction; and (5) the trial court erred in its application of enhancement and mitigating factors, resulting in an unjust and improper sentence.  Upon review, we affirm the judgment of the trial court.

Macon County Court of Criminal Appeals 03/09/15
State of Tennessee v. Gary D. Scales
M2014-01094-CCA-R3-CD
Authoring Judge: Presiding Judge Thomas T. Woodall
Trial Court Judge: Judge Cheryl A. Blackburn

Defendant, Gary D. Scales, was indicted by the Davidson County grand jury for one count of robbery.  A jury found Defendant guilty of the charged offense, and the trial court sentenced Defendant to serve 15 years in the Tennessee Department of Correction as a Persistent offender.  Defendant appeals his conviction and asserts that the evidence was insufficient to support his conviction.  Having carefully reviewed the record before us, we affirm the judgment of the trial court.

Davidson County Court of Criminal Appeals 03/09/15
State of Tennessee v. Christopher Bell
W2014-00504-CCA-R3-CD
Authoring Judge: Judge Roger A. Page
Trial Court Judge: Judge Paula Skahan

Appellant, Christopher Bell, pleaded guilty to especially aggravated robbery, aggravated burglary, employing a firearm during the commission of a dangerous felony, and aggravated criminal trespass. The trial court sentenced appellant to an effective seventeen-year sentence. Appellant reserved a certified question of law arguing that the juvenile court did not properly conduct his transfer hearing from juvenile court to criminal court. Following our review of the briefs, the record, and the applicable law, we conclude that appellant’s transfer hearing was properly conducted and affirm the judgments of the trial court.

Shelby County Court of Criminal Appeals 03/04/15
William Newson v. State of Tennessee
W2014-00867-CCA-R3-PC
Authoring Judge: Judge Thomas T. Woodall
Trial Court Judge: Judge Roy B. Morgan, Jr.

Petitioner, William Newson, pleaded guilty to driving under the influence of an intoxicant (DUI) with an agreed sentence of eleven months twenty nine days, with forty-eight hours to serve and the remainder on probation. The sentence was to be served concurrently with a parole violation and a violation of an order of protection in unrelated cases. Petitioner filed a timely petition for post-conviction relief alleging that trial counsel promised him that his DUI guilty plea would result in his release from jail after serving the forty-eight hours as described in the guilty plea agreement and that he would return to probation. Petitioner now appeals the trial court’s denial of his petition for post-conviction relief, in which he alleged that his guilty plea was not knowingly, voluntarily, and intelligently entered due to the ineffective assistance of trial counsel. Having reviewed the record before us, we affirm the judgment of trial court.

Madison County Court of Criminal Appeals 03/04/15
State of Tennessee v. Ronald Chery, Daryn W. Chery and John K. St. Cloud
M2013-02845-CCA-R3-CD
Authoring Judge: Judge Roger A. Page
Trial Court Judge: Judge James G. Martin, III

Appellants Ronald Chery, Daryn W. Chery, and John K. St. Cloud were charged in a presentment with thirteen counts of aggravated burglary, thirteen counts of varying degrees of theft, and one count of conspiracy to commit theft of property valued at more than $60,000.  Appellants filed a motion to dismiss the presentment on the grounds that they had been previously charged with one count of aggravated burglary and evading arrest that were so closely related to the subsequent thirteen burglaries and thefts that joinder of the offenses was mandatory.  Following a hearing on the motion to dismiss, the trial court denied relief. Each appellant pleaded guilty to five counts of aggravated burglary, and the State dismissed all theft counts and the conspiracy count.  As part of the plea agreement, appellants reserved a certified question pertaining to the necessity of mandatory joinder of the subsequent thirteen burglaries with the first burglary and related offenses pursuant to Rule 8(a) of the Tennessee Rules of Criminal Procedure.  Following our review, we affirm the judgments of the trial court. 

Williamson County Court of Criminal Appeals 03/04/15
State of Tennessee v. Charlie E. Mullican
M2014-01122-CCA-R3-CD
Authoring Judge: Presiding Judge Thomas T. Woodall
Trial Court Judge: Judge Larry B. Stanley

Defendant, Charlie E. Mullican, pled guilty pursuant to a negotiated plea agreement, to driving under the influence of an intoxicant (DUI), second offense, and possession of a handgun while under the influence of intoxicants.  He properly reserved a certified question of law for appeal.  The question of the law is dispositive of the case.  After a thorough review we affirm the judgment of the trial court.

Warren County Court of Criminal Appeals 03/04/15
Maurice Edward Carter v. State of Tennessee
M2014-00750-CCA-R3-PC
Authoring Judge: Judge Robert L. Holloway, Jr.
Trial Court Judge: Judge David Earl Durham

In December 2009, the Petitioner, Maurice Edward Carter, pled guilty to one count of aggravated statutory rape and one count of criminal exposure to HIV and received an effective sentence of 20 years.  Pursuant to his plea agreement, the Petitioner reserved a certified question of law concerning the trial court’s denial of his motions to suppress evidence and his statement.  On direct appeal, this Court determined that the certified question was not dispositive of the Petitioner’s case and dismissed the appeal.  Thereafter, the Petitioner filed a post-conviction petition but was denied relief.  The Petitioner now appeals, contending that he received ineffective assistance of counsel based upon trial counsel’s failure to:  (1) properly preserve the certified question of law; (2) adequately explain to the Petitioner the possible outcomes of his direct appeal; and (3) address in the certified question of law the issue of the legality of the officer’s opening a locked box found in the Petitioner’s vehicle.  The Petitioner further contends that his guilty plea was unknowing and involuntary based upon trial counsel’s ineffectiveness and the trial court’s failure to ensure that the Petitioner understood the ramifications and possible outcomes of his appeal of a certified question of law.  Following review, we affirm the judgment of the post-conviction court.

Smith County Court of Criminal Appeals 03/03/15
State of Tennessee v. Micah Johnson, Alias
E2013-02356-CCA-R3-CD
Authoring Judge: Judge D. Kelly Thomas, Jr.
Trial Court Judge: Judge Mary Beth Leibowitz

The Defendant, Micah Johnson, alias, was convicted by a Knox County jury of one count of premeditated murder, two counts of felony murder, two counts of especially aggravated kidnapping, and one count of especially aggravated robbery. The trial court merged the murder counts and the kidnapping counts into a single count for each, respectively. The trial court imposed an effective sentence of life imprisonment with the possibility of parole plus fifty years for all of these convictions. In this direct appeal, the Defendant contends that (1) the evidence is insufficient to support his conviction for premeditated murder; (2) the trial court erred by failing to instruct the jury regarding substantial interference as mandated in State v. White, 362 S.W.3d 559 (Tenn. 2012), thus, requiring reversal of his kidnapping convictions; (3) the trial court erred, in violation of Tennessee Rule of Evidence 404(b), by allowing introduction of the Defendant’s prison disciplinary records as rebuttal evidence to the neuropsychologist’s testimony about the Defendant’s psychological test results; (4) the trial court abused its discretion by allowing the State to impeach the forensic psychiatrist defense expert with a twenty-two-year-old academic misdeed; (5) the trial court erred by failing to suppress the video recording of the crime scene and the photographs taken at the crime scene and during the victim’s autopsy all gruesomely depicting the victim’s body; (6) plain error occurred when the State elicited testimony from its rebuttal mental health expert that, if the Defendant was found not guilty by reason of insanity, he was not committable to a mental health facility in her opinion; and (7) the imposition of consecutive sentencing was improper. Following our review of the record and the applicable authorities, we conclude that the trial court’s failing to instruct the jury properly pursuant to White constitutes reversible error. Therefore, the Defendant’s two convictions for especially aggravated kidnapping must be reversed and remanded to the trial court for a new trial as to those offenses only. In all other respects, the judgments of the trial court are affirmed.

Knox County Court of Criminal Appeals 03/02/15
State of Tennessee v. William Scott Ross
M2014-00459-CCA-R3-CD
Authoring Judge: Judge Camille R. McMullen
Trial Court Judge: Judge Cheryl A. Blackburn

The Defendant-Appellant, William Scott Ross, pled guilty to one count of facilitation of a conspiracy to sell over seventy pounds of marijuana and one count of official misconduct.  Pursuant to the plea agreement, he received an effective three-year sentence in the local corrections facility, suspended to supervised probation.  After a hearing, the trial court denied the Defendant’s request for judicial diversion.  On appeal, the Defendant argues that the trial court erred in refusing to grant judicial diversion.  Upon review, we affirm the judgment of the trial court.

Davidson County Court of Criminal Appeals 03/02/15
State of Tennessee v. Elmi Abdulahi Abdi
M2014-00755-CCA-R3-CD
Authoring Judge: Judge Robert L. Holloway, Jr.
Trial Court Judge: Judge Cheryl Blackburn

In this delayed direct appeal, the Defendant, Elmi Abdulahi Abdi, argues that the trial court erred when it admitted a redacted version of his video-recorded statement into evidence.  The Defendant contends that the trial court should have introduced the full video-recorded statement to allow the jury to consider his statement in context.  The record does not include the un-redacted video statement, a transcript of the audio of the un-redacted video statement, a transcript of a hearing on the Defendant’s motion in limine to exclude the redacted statement, or an order from the trial court ruling on the motion in limine.  Additionally, the Defendant did not make a contemporaneous objection when the redacted video was played to the jury and did not require the introduction of the un-redacted video pursuant to the rule of completeness, Tennessee Rule of Evidence 106.  We conclude that the trial court did not err in admitting the redacted video and affirm the judgment of the trial court.

Davidson County Court of Criminal Appeals 03/02/15
State of Tennessee v. Timothy Allen Johnson
M2014-00766-CCA-R3-CD
Authoring Judge: Judge John Everett Williams
Trial Court Judge: Judge Cheryl A. Blackburn

The defendant, Timothy Allen Johnson, was convicted of one count of tampering with evidence, a Class C felony.  He was sentenced as a persistent offender to a twelve-year sentence.  On appeal, the defendant argues that the evidence is insufficient to support his conviction.  After a thorough review of the record, the briefs of the parties, and the applicable law, we affirm the judgment of the trial court.

Davidson County Court of Criminal Appeals 03/02/15
State of Tennessee v. Jaron Harris
E2014-00822-CCA-R3-CD
Authoring Judge: Judge Robert W. Wedemeyer
Trial Court Judge: Judge Bob R. McGee

A Knox County jury convicted the Defendant, Jaron Harris, of two counts of especially aggravated kidnapping, two counts of aggravated robbery, four counts of first degree felony murder, one count of second degree murder, one count of attempted second degree murder, two counts of employing a firearm during the commission of a dangerous felony, and two counts of aggravated assault. The trial court merged several of the convictions, dismissed one count of aggravated assault, and then sentenced the Defendant to serve a total effective sentence of life plus fourteen years. On appeal, the Defendant asserts that: (1) the evidence is insufficient to support his convictions; and (2) the trial court erred when it allowed crossexamination of the Defendant about statements he made to other inmates about escaping from the courtroom. After a thorough review of the record and applicable law, we affirm the trial court’s judgments.

Knox County Court of Criminal Appeals 02/27/15
State of Tennessee v. Reginald Perry Davis Lashley
M2014-00733-CCA-R3-CD
Authoring Judge: Judge John Everett Williams
Trial Court Judge: Judge Timothy L. Easter

The defendant, Reginald Perry Davis Lashley, appeals the revocation of his probationary sentence.  The defendant pled guilty to two counts of criminal attempt to deliver a controlled substance, to wit ecstasy, and received an effective six-year sentence, which was suspended to supervised probation following service of one year in incarceration.  Subsequently, a violation warrant was issued alleging that the defendant had violated the terms and conditions of his probation by being arrested for DUI, using intoxicants to excess, failing to report the new arrest, and failing to verify payment of costs and fines.  Following a hearing, the trial court found the defendant had violated the terms and conditions of his probation and ordered that the balance of the sentence be served in incarceration.  On appeal, the defendant contends that the decision to revoke was not supported by sufficient evidence.  Following review of the record, we conclude that the trial court did not abuse its discretion in revoking the defendant’s probation.  As such, the judgment of the trial court is affirmed.

Williamson County Court of Criminal Appeals 02/27/15
Keesha Washington v. State of Tennessee
M2014-00250-CCA-R3-PC
Authoring Judge: Judge Robert H. Montgomery
Trial Court Judge: Judge Timothy L. Easter

The Petitioner, Keesha Washington, appeals the Williamson County Circuit Court’s denial of her petition for post-conviction relief from her 2010 conviction for aggravated arson and her eighteen-year sentence.  She contends that the post-conviction court erred by denying her relief because she received the ineffective assistance of counsel.  We affirm the judgment of the post-conviction court.

Williamson County Court of Criminal Appeals 02/27/15
Willie Moore v. State of Tennessee
W2014-00334-CCA-R3-PC
Authoring Judge: Judge Roger A. Page
Trial Court Judge: Judge James C. Beasley, Jr.

Petitioner, Willie Moore, pleaded guilty to eleven counts of identity theft, Class D felonies, and received the agreed-upon sentence of eleven years on each count to be served concurrently with each other as a persistent offender at forty-five percent release eligibility. He filed the instant petition for post-conviction relief on the basis that his guilty pleas were not knowingly, voluntarily, and intelligently entered. The post-conviction court denied relief, and this appeal followed. Upon review, we affirm the judgment of the post-conviction court.

Shelby County Court of Criminal Appeals 02/26/15
Don Sanders v. State of Tennessee
W2013-02781-CCA-R3-PC
Authoring Judge: Judge Norma McGee Ogle
Trial Court Judge: Judge James Lammey, Jr.

The Petitioner, Don Sanders, appeals the Shelby County Criminal Court’s dismissal of his petition for post-conviction relief seeking relief from his conviction of first degree premeditated murder and resulting life sentence. On appeal, the Petitioner contends that the post-conviction court erred by ruling that his petition was untimely and by refusing to toll the one-year statute of limitations for his mental incompetence. Based upon the oral arguments, the record, and the parties’ briefs, we affirm the post-conviction court’s dismissal of the petition.

Shelby County Court of Criminal Appeals 02/26/15
Alphonzo Chalmers v. State of Tennessee
W2014-00377-CCA-R3-ECN
Authoring Judge: Judge Norma McGee Ogle
Trial Court Judge: Judge Chris Craft

A Shelby County Criminal Court Jury convicted the petitioner, Alphonzo Chalmers, of first degree murder, and the trial court imposed a sentence of life imprisonment in the Tennessee Department of Correction. Thereafter, the petitioner filed a petition for writ of error coram nobis, arguing that newly discovered mental health records entitled him to a new trial. The coram nobis court summarily denied the petition, and the petitioner appeals. Upon review, we affirm the judgment of the coram nobis court.

Shelby County Court of Criminal Appeals 02/26/15
State of Tennessee v. Rickey Bell
W2014-00049-CCA-R3-CD
Authoring Judge: Judge Robert L. Holloway, Jr.
Trial Court Judge: Judge John W. Campbell

Rickey Bell (“the Defendant”) was convicted by a jury of rape of a child, aggravated sexual battery, rape, and two counts of sexual battery by an authority figure. The trial court sentenced the Defendant to a total effective sentence of forty-nine years’ incarceration. On appeal, the Defendant argues that the trial court erred in denying the Defendant’s motion for a bill of particulars and in allowing proof of certain prior bad acts. The Defendant also challenges the sufficiency of the evidence supporting his convictions for rape of a child and rape. After a thorough review of the record, we conclude that the trial court did not abuse its discretion in denying the motion for a bill of particulars and in allowing the admission of proof of prior bad acts. We also conclude that there was sufficient evidence supporting the convictions for rape of a child and rape. Therefore, we affirm the judgments of the trial court.

Shelby County Court of Criminal Appeals 02/26/15
State of Tennessee v. Calvin Douglas
W2014-00505-CCA-R3-CD
Authoring Judge: Judge Camille R. McMullen
Trial Court Judge: Judge W. Mark Ward

The Defendant-Appellant, Calvin Douglas, was convicted by a Shelby County Criminal Court jury of three counts of aggravated assault and one count of reckless endangerment with a dangerous weapon. The trial court sentenced the Defendant to an effective sentence of 20 years‟ confinement. On appeal, the Defendant argues that (1) the evidence is insufficient to sustain his convictions for aggravated assault and reckless endangerment with a deadly weapon, and (2) the trial court abused its discretion in imposing consecutive sentences. Upon our review, we affirm the judgments of the trial court.

Shelby County Court of Criminal Appeals 02/26/15
State of Tennessee v. Courtney B. Matthews
M2005-00843-CCA-R3-CD
Authoring Judge: Judge James Curwood Witt, Jr.
Trial Court Judge: Judge John H. Gasaway, III

In 1996, a Montgomery County Circuit Court jury convicted the defendant, Courtney B. Matthews, of four counts of first degree felony murder and one count of especially aggravated robbery.  The jury sentenced the defendant to a term of life in prison without the possibility of parole for each first degree murder conviction, and the trial court sentenced the defendant to a term of 25 years in prison for the especially aggravated robbery.  The court ordered that all sentences be served consecutively.  On appeal, the defendant contends: (1) that he was denied due process in the delay of the preparation of his trial transcript and of the hearing on the motion for new trial; (2) that the trial court erred in not reopening the hearing on the motion for new trial; (3) that the trial court erred by permitting cameras in the courtroom during the trial; (4) that the cameras “invaded” the deliberations of the jury; (5) that the trial court should have changed venue due to the influence of pretrial publicity; (6) that the trial court erred by admitting photographs of the victims; (7) that the trial court erred by admitting DNA evidence; (8) that the trial court erred by certifying a state witness as an expert in DNA analysis; (9) that the trial court erred by admitting the testimony of the medical examiner; (10) that the trial court erred by permitting the medical examiner to utilize demonstrative aids during his testimony; (11) that the evidence was insufficient to support his convictions under a theory of criminal responsibility for the conduct of another; (12) that the evidence was insufficient to support his convictions under a theory of direct liability; (13) that the trial court violated his due process rights by “forcing” the state to proceed on inconsistent theories at his trial and the trial of his codefendant; (14) that the trial court erred by interrupting jury deliberations to provide an instruction on criminal responsibility for conduct of another; (15) that the convictions for especially aggravated robbery and felony murder violate double jeopardy principles; (16) that the evidence was insufficient to support the finding that the murders were heinous, atrocious, or cruel; (17) that the trial court erred by failing to instruct the jury on certain non-statutory mitigating factors; and (18) that the trial court erred by imposing consecutive sentencing.  Upon hearing oral arguments and reviewing the briefs of the parties, the extensive record, and the applicable law, we affirm the judgments of the trial court.

Montgomery County Court of Criminal Appeals 02/26/15
State of Tennessee v. Rubalddi Espinoza Yoc
M2014-01031-CCA-R3-CD
Authoring Judge: Judge Timothy L. Easter
Trial Court Judge: Judge Forest A. Durard, Jr.

Defendant, Rubalddi Espinoza Yoc, was convicted by a jury of one count of possession with intent to sell 0.5 grams or more of a Schedule II controlled substance and one count of delivery of 0.5 grams or more of a Schedule II controlled substance.  The trial court merged the two counts and sentenced Defendant to nine years’ incarceration as a Range I, standard offender, with all but one year suspended on probation.  On appeal, Defendant challenges the sufficiency of the evidence.  Based upon our review of the record and legal authorities, we affirm the judgment of the trial court.

Bedford County Court of Criminal Appeals 02/26/15
In Re: American Bonding Company
M2014-00249-CCA-R3-CD
Authoring Judge: Judge Alan E. Glenn
Trial Court Judge: Judge Michael W. Binkley

This is an appeal by Williamson County Bail Bondsman, Amir Karshenas of American Bonding Company, of the trial court’s denial of his motion to recuse the judge from hearing matters related to his authority to conduct business as a bail bondsman.  Following our review, we affirm the denial of the motion to recuse.

Williamson County Court of Criminal Appeals 02/26/15