Court of Criminal Appeals Opinions

Format: 05/22/2015
Format: 05/22/2015
State of Tennessee v. Clinton Austin
W2014-01211-CCA-R3-CD
Authoring Judge: Judge Robert H. Montgomery, Jr.
Trial Court Judge: Judge Glenn Wright

The Defendant, Clinton Austin, was found guilty by a Shelby County Criminal Court jury of aggravated sexual battery, a Class B felony. See T.C.A. § 39-13-504 (2014). The trial court sentenced the Defendant to ten years’ confinement at 100% service as a violent offender. On appeal, he contends that (1) the evidence is insufficient to support his conviction and (2) the trial court erred by admitting the video recording of the victim’s forensic interview. We affirm the judgment of the trial court.

Shelby County Court of Criminal Appeals 05/12/15
State of Tennessee v. Ugenio Ruby-Ruiz
M2013-01999-CCA-R3-CD
Authoring Judge: Presiding Judge Thomas T. Woodall
Trial Court Judge: Judge Steve R. Dozier

Defendant, Ugenio Ruby-Ruiz, was indicted by the Davidson County Grand Jury in a 25-count indictment charging him with five counts of soliciting sexual exploitation of a minor; six counts of aggravated sexual battery; ten counts of rape of a child; one count of especially aggravated sexual exploitation of a minor; two counts of rape; and one count of solicitation of a minor. At the request of the State, the trial court dismissed one count of rape of a child; the solicitation of a minor count; and two counts of sexual exploitation of a minor. Defendant was convicted by a jury of the remaining offenses. Following a sentencing hearing, Defendant received a total effective sentence of 121 years. In this appeal as of right, Defendant contends that: 1) the trial court erred in ordering consecutive sentencing; 2) that Defendant’s sentence is unjustly deserved in relation to the seriousness of the offenses; and 3) that the evidence was insufficient to support his convictions. Having reviewed the briefs of the parties and the entire record, we conclude that Defendant has waived review of his convictions for sufficiency of the evidence. We further conclude that the trial court did not abuse its discretion in ordering consecutive sentences. Accordingly, we affirm the judgments of the trial court.

Davidson County Court of Criminal Appeals 05/12/15
State of Tennessee v. Julius Wiel Walton
M2014-01337-CCA-R3-CD
Authoring Judge: Judge Camille R. McMullen
Trial Court Judge: Judge Michael R. Jones

The Defendant-Appellant, Julius Wiel Walton, was convicted by a Robertson County jury of sexual battery for an incident involving his granddaughter.  The trial court sentenced the Defendant to two years to be served on probation.  On appeal, the Defendant challenges the sufficiency of the evidence supporting his conviction.  Upon review, we affirm the judgment of the trial court.

Robertson County Court of Criminal Appeals 05/12/15
State of Tennessee v. James Cauley
M2014-00973-CCA-R3-CD
Authoring Judge: Judge Thomas T. Woodall
Trial Court Judge: Judge David M. Bragg

In 2005 Defendant, James Cauley, pled guilty to felony possession of less than 0.5 gram of cocaine, felony evading arrest, possession of contraband in a penal institution, and felony failure to appear.  Pursuant to a negotiated plea agreement, Defendant received an effective sentence of nine years to be served on probation, and other pending charges were dismissed.  In November 2012, a violation of probation warrant was issued.  Additional amendments to the warrant were issued in January 2013, April 2013, and September 2013.  At a hearing in October 2013, Defendant admitted that he had violated probation as alleged in the warrants.  Defendant asserted he was entitled to jail credit for time he served in a federal prison while he was on state probation.  The matter was continued to allow Defendant the opportunity to file a brief in support of his argument.  Another hearing was held in February 2014, and the trial court ordered the effective sentence to be served by incarceration.  Defendant appeals, arguing that the trial court erred by ordering him to serve the entire nine-year sentence at a time when he had less than one year remaining on probation and without giving him credit for the time he spent in federal custody.  We affirm the judgment of the trial court.

Rutherford County Court of Criminal Appeals 05/12/15
State of Tennessee v. Jimmie Lee Reeder
M2013-02538-CCA-R3-CD
Authoring Judge: Judge Norma McGee Ogle
Trial Court Judge: Judge Larry Wallace

A Cheatham County Circuit Court Jury convicted the appellant, Jimmy Lee Reeder, of rape of a child, a Class A felony, and aggravated sexual battery, a Class B felony.  After a sentencing hearing, he received an effective thirty-five-year sentence to be served at 100%. On appeal, the appellant contends that he was denied his right to an impartial jury, that the prosecutor engaged in misconduct during the State’s case-in-chief and closing arguments, and that the trial court’s decision to exclude any evidence regarding prior allegations of sexual abuse of the victim deprived him of his right to present a defense.  Based upon the oral arguments, the record, and the parties’ briefs, we affirm the judgments of the trial court.

Cheatham County Court of Criminal Appeals 05/12/15
State of Tennessee v. Harold Francis Butler
E2014-00631-CCA-R3-CD
Authoring Judge: Judge James Curwood Witt, Jr.
Trial Court Judge: Judge Don W. Poole
The defendant, Harold Francis Butler, appeals his Hamilton County 1 Criminal Court jury convictions of felony murder, attempted especially aggravated robbery, attempted first degree murder, and employing a firearm during the commission of a dangerous felony, challenging the trial court’s denial of his pretrial motion to dismiss based upon the failure to collect certain evidence. In addition, the defendant claims the trial court erred by denying the defendant’s request to call certain witnesses, by permitting the State to impeach its witness and to introduce evidence through a prior recorded statement, and by limiting the defendant’s ability to cross examine a witness at trial. Discerning no error, we affirm.
 
Hamilton County Court of Criminal Appeals 05/11/15
State of Tennessee v. Robert Guerrero
M2014-01669-CCA-R3-CD
Authoring Judge: Judge Robert H. Montgomery, Jr.
Trial Court Judge: Judge Stella L. Hargrove

The Defendant, Robert Guerrero, was convicted by a Maury County Circuit Court jury of two counts of first degree murder and nine counts of attempted first degree murder. See T.C.A. §§ 39-13-201 (2014), 39-13-202 (2014), 39-12-101 (2014). The trial court sentenced the Defendant to two consecutive life sentences and to nine consecutive fifteen-year sentences to be served consecutively to the life sentences, for an effective sentence of two life terms plus 135 years. Almost six years later, the Defendant filed a motion pursuant to Tennessee Criminal Procedure Rule 36.1 requesting that the trial court correct an illegal sentence because his life sentences requiring 100% service of sixty years’ confinement less sentencing credits up to 15% were tantamount to life sentences without the eligibility or possibility of parole. The trial court summarily dismissed the motion for failure to state a colorable claim. On appeal, he contends that the trial court erred in dismissing his motion. We affirm the judgment of the trial court.

Maury County Court of Criminal Appeals 05/11/15
State of Tennessee v. Reese L. Smith
M2014-01196-CCA-R3-CD
Authoring Judge: Judge Roger A. Page
Trial Court Judge: Judge Mark Fishburn

Appellant, Reese L. Smith, was convicted of aggravated perjury, and the trial court sentenced him to six years and one month, suspended to eight years of supervised probation.  On appeal, appellant challenges his conviction.  Following our review of the parties’ briefs, the record, and the applicable law, we affirm the judgment of the trial court.

Davidson County Court of Criminal Appeals 05/08/15
State of Tennessee v. Dusty Ross Binkley
M2014-01173-CCA-R3-CD
Authoring Judge: Judge Roger A. Page
Trial Court Judge: Judge Steve R. Dozier

Appellant, Dusty Ross Binkley, pleaded guilty to manufacture of methamphetamine and possession of a firearm during the commission of a dangerous felony and received an effective eight-year sentence to be served in community corrections.  His sentence was revoked after he received new charges, and the trial court aligned the original sentence consecutively to the sentences for the new offenses.  Appellant later filed a Motion to Correct Illegal Sentences pursuant to Tennessee Rule of Criminal Procedure 36.1, which the trial court denied after a hearing.  On appeal, he argues that trial court incorrectly aligned his original sentences consecutively to his sentences for his new offenses. Following our review, we affirm the judgment of the trial court.

Davidson County Court of Criminal Appeals 05/07/15
State of Tennessee v. David Wayne Hearing
E2014-01908-CCA-R3-CD
Authoring Judge: Judge Norma McGee Ogle
Trial Court Judge: Judge Thomas Wright

The appellant, David Wayne Hearing, filed in the Greene County Criminal Court a motion to correct an illegal sentence pursuant to Tennessee Rule of Criminal Procedure 36.1. The motion was summarily denied, and the appellant appeals the ruling. Based upon the oral arguments, the record, and the parties' briefs, we affirm the judgment of the trial court.

Greene County Court of Criminal Appeals 05/06/15
Bobby Glen Crocker v. State of Tennessee
W2014-01082-CCA-R3-PC
Authoring Judge: Judge Timothy L. Easter
Trial Court Judge: Judge Donald E. Parish

Petitioner, Bobby Glen Crocker, filed a petition for post-conviction relief, which was dismissed by the post-conviction court as being barred by the statute of limitations. He appeals the post-conviction court‟s finding that the statute of limitations should not be tolled due to Petitioner‟s mental incompetency. Following a careful review of the record, we affirm the decision of the post-conviction court.

Carroll County Court of Criminal Appeals 05/06/15
State of Tennessee v. Frederick Thomas
W2013-02762-CCA-R3-CD
Authoring Judge: Judge Timothy L. Easter
Trial Court Judge: Judge J. Robert Carter, Jr.

Defendant, Fredrick Thomas, was indicted by the Shelby County Grand Jury with first degree murder and employing a firearm during the commission of a felony after the shooting death of his wife and his unsuccessful attempt at suicide. After a jury trial, Defendant was found guilty of first degree murder. The trial court dismissed the remaining count. Defendant was sentenced to life imprisonment. On appeal, Defendant challenges the sufficiency of the evidence and the trial court's refusal to allow expert testimony on premeditation, deliberation, passion, and provocation. After a thorough review, we affirm the judgment of the trial court.

Shelby County Court of Criminal Appeals 05/06/15
James Todd v. State of Tennessee
W2014-00677-CCA-R3-PC
Authoring Judge: Judge Timothy L. Easter
Trial Court Judge: Judge James M. Lammey

Petitioner, James Todd, filed a petition for post-conviction relief, alleging that his trial counsel provided ineffective assistance by inadequately presenting a motion to suppress to the trial court. Because trial counsel’s performance was not deficient, the post-conviction court’s denial of the petition is affirmed.

Shelby County Court of Criminal Appeals 05/06/15
State of Tennessee v. Jeremy D. Parvin
E2014-01569-CCA-R3-CD
Authoring Judge: Judge Robert L. Holloway, Jr.
Trial Court Judge: Judge Rebecca J. Stern
Jeremy D. Parvin, the Defendant, was convicted of resisting arrest. On appeal, the Defendant contends there is insufficient evidence to support his conviction. After a review of the record and applicable law, we affirm the judgment of the trial court.
 
Hamilton County Court of Criminal Appeals 05/06/15
State of Tennessee v. Connie Sue Messick
M2014-00116-CCA-R3-CD
Authoring Judge: Judge Norma McGee Ogle
Trial Court Judge: Judge L. Craig Johnson

The appellant, Connie Sue Messick, pled guilty in the Coffee County Circuit Court to vehicular homicide by intoxication, one count of reckless aggravated assault, and four counts of vehicular assault. The trial court sentenced the appellant to a total effective sentence of sixteen years in the Tennessee Department of Correction. On appeal, the appellant challenges the length and manner of service of the sentences. Upon review, we affirm the judgments of the trial court but remand for entry of a corrected judgment to reflect that reckless aggravated assault is a Class D felony.

Coffee County Court of Criminal Appeals 05/06/15
Timothy L. Jefferson v. State of Tennessee
M2014-00756-CCA-R3-ECN
Authoring Judge: Judge John Everett Williams
Trial Court Judge: Judge Cheryl A. Blackburn

The petitioner, Timothy L. Jefferson, appeals the summary dismissal of his petition for the writ of error coram nobis. He is currently serving a forty-year sentence in the Department of Correction as a result of his 2001 guilty plea to second degree murder. On appeal, the petitioner contends that the coram nobis court’s dismissal was in error for multiple reasons, including that: (1) the court failed to give proper consideration to veracity of the newly discovered evidence; (2) the court reached the wrong conclusion as to whether the newly discovered evidence may have affected the result; (3) the petition was not time-barred because the statute of limitations was waived; and (4) the issue had not been previously litigated. Following review of the record, we affirm the dismissal of the petition.

Davidson County Court of Criminal Appeals 05/06/15
State of Tennessee v. Danny Wilkerson
W2014-00324-CCA-R3-CD
Authoring Judge: Judge Timothy L. Easter
Trial Court Judge: Judge C. Creed McGinley

Appellant, Danny Steve Wilkerson, was convicted by a jury of three drug-related offenses and received an effective sentence of ten years as a Range I, standard offender in the Tennessee Department of Correction. He appeals, challenging the sufficiency of the evidence supporting his convictions and the nature and length of his sentences. After a careful review of the record and the applicable law, the judgments of the trial court are affirmed.

Hardin County Court of Criminal Appeals 05/05/15
State of Tennessee v. Gregory Nelson and Tina Nelson
W2014-00494-CCA-R3-CD
Authoring Judge: Judge Camille R. McMullen
Trial Court Judge: Judge Joseph H. Walker, III

A Lauderdale County jury convicted the Defendant-Appellants, Gregory Nelson and Tina Nelson, of the charged offenses of first degree felony murder during the perpetration of aggravated child abuse and aggravated child abuse. Tina Nelson was sentenced to life imprisonment for the first degree felony murder conviction and to fifteen years for the aggravated child abuse conviction, and Gregory Nelson was sentenced to life imprisonment for the first degree murder conviction and to twenty years for the aggravated child abuse conviction. In this consolidated appeal, Gregory and Tina Nelson argue that the evidence is insufficient to sustain their convictions. Upon review, we affirm the judgments of the trial court.

Lauderdale County Court of Criminal Appeals 05/05/15
State of Tennessee v. Christopher Swift and Marquavious Houston-Concurring In Part, Dissenting In Part
W2013-00842-CCA-R3-CD
Authoring Judge: Judge Timothy L. Easter
Trial Court Judge: Judge James C. Beasley, Jr.

I concur with the results and most of the reasoning in the majority opinion. I respectfully disagree, however, with the majority’s conclusion that the trial court abused its discretion when it failed to grant Defendant Swift’s motion to sever. In my view, neither Rule 8 or Rule 14 of the Rules of Criminal Procedure required the trial court to grant Defendant Swift’s motion to sever. Furthermore, I am satisfied that the trial court gave clear and correct instructions on how the jury was to consider the evidence as to each Defendant. The manner in which the evidence was admitted by the trial court did not so prejudice Defendant Swift as to require severance.

Shelby County Court of Criminal Appeals 05/05/15
State of Tennessee v. Christopher Swift and Marquavious Houston
W2013-00842-CCA-R3-CD
Authoring Judge: Judge Norma McGee Ogle
Trial Court Judge: Judge James C. Beasley, Jr.

A Shelby County Criminal Court Jury convicted the appellants, Christopher Swift and Marquavious Houston, of first degree premeditated murder; attempted first degree premeditated murder, a Class A felony; and employing a firearm during the commission of a dangerous felony, a Class C felony. After a sentencing hearing, they received effective sentences of life plus twenty-six years. On appeal, the appellants contend that (1) the trial court erred by refusing to sever their trials; (2) the trial court erred by allowing the State to display an assault rifle for demonstrative purposes when the rifle was not used to commit the crimes; (3) the trial court erred by allowing the surviving victim to testify after the police destroyed his recorded statement; and (4) the evidence is insufficient to support the convictions. In addition, Houston contends that (5) the State’s failure to name the predicate felony in count 3 of the indictment, employing a firearm during the commission of a dangerous felony, voids the charge and (6) that the trial court erred by ordering consecutive sentencing. Based upon the oral arguments, the record, and the parties’ briefs, we conclude that the trial court committed reversible error in Swift’s case by refusing to sever the appellants’ trials and by allowing the State to show the jury an assault rifle that was not used in the crimes. Therefore, his convictions are reversed, and his case is remanded to the trial court for a new trial. Houston’s convictions and sentences, however, are affirmed.

Shelby County Court of Criminal Appeals 05/05/15
State of Tennessee v. Narrell Christopher Pierce
M2014-00120-CCA-R3-CD
Authoring Judge: Judge Camille R. McMullen
Trial Court Judge: Judge Steve R. Dozier

The Defendant-Appellant, Narrell Christopher Pierce, was convicted by a Davidson County Criminal Court jury of attempted aggravated robbery, attempted second degree murder, employment of a firearm during the commission of a dangerous felony, and unlawful possession of a handgun by a felon.  The trial court sentenced the Defendant to an effective sentence of 51 years’ confinement.  On appeal, the Defendant-Appellant argues: (1) the trial court erred in denying the Defendant’s motions to suppress (a) the victim’s identification testimony, (b) evidence obtained as a result of the Defendant’s arrest, and (c) evidence obtained pursuant to a search warrant; (2) the trial court erred in refusing to allow the Defendant to cross-examine a witness about alleged acts of untruthfulness; (3) the trial court erred in denying the Defendant’s motion to dismiss count 3 of the indictment and allowing the State to amend that count of the indictment; (4) the evidence is insufficient to sustain the Defendant’s convictions of attempted second degree murder and employing a firearm during the commission of a dangerous felony; and (5) the trial court abused its discretion in sentencing the Defendant as a career offender to 51 years’ confinement.  Upon review, we affirm the judgments of the trial court.

Davidson County Court of Criminal Appeals 05/05/15
State of Tennessee v. Vermaine M. Burns
M2014-00357-CCA-R3-CD
Authoring Judge: Judge Robert L. Holloway, Jr.
Trial Court Judge: Judge James G. Martin, III

Vermaine M. Burns (“the Defendant”) was convicted of several sexual offenses, all stemming from illicit Facebook chats (“chats”) and emails between himself and the victim, K.P. On appeal, the Defendant raises three issues: (1) whether the trial court abused its discretion by admitting into evidence the Defendant’s chats with the victim and an emailed photo of a penis; (2) whether the evidence was sufficient to support the jury’s finding that the Defendant was the author of the communications; and (3) whether the trial court erred by prohibiting the Defendant from referring to a fake Facebook profile created by the Defendant’s stepdaughter. After a review of the record and applicable law, we affirm the judgments of the trial court.

Williamson County Court of Criminal Appeals 05/05/15
Candance Carol Bush v. State of Tennessee
M2014-00824-CCA-R3-PC
Authoring Judge: Judge Robert L. Holloway, Jr.
Trial Court Judge: Judge Mitchell Keith Siskin

The Petitioner, Candance Carol Bush, appeals as of right from the denial of her petition for post-conviction relief.  The Petitioner contends that she received ineffective assistance of counsel based upon trial counsel’s advice that she not testify at trial and counsel’s failure to file a motion to sever the Petitioner’s case from that of her co-defendant.  The Petitioner further contends that the cumulative effect of these errors undermines the confidence in the outcome of her trial such that she is entitled to post-conviction relief.  After a thorough review, we affirm the judgment of the post-conviction court.

Rutherford County Court of Criminal Appeals 05/05/15
State of Tennessee v. Thomas William Whited - dissenting
E2013-02523-CCA-R3-CD
Authoring Judge: Judge Camille R. McMullen
Trial Court Judge: Judge Steven W. Sword

I must respectfully disagree with the conclusion reached by the majority. Let me begin by recognizing that surreptitiously recording a minor in the privacy of her bedroom or bathroom while she undresses is reprehensible, abhorrent, and criminal. See Tenn. Code Ann. §39-13-605. However, whether this conduct rises to the level necessary to sustain the convictions for especially aggravated sexual exploitation of a minor is another question. For this offense, the State was required to show that the minor in the videos was engaged in sexual activity. As applicable here, the statutory definition of sexual activity required the State to prove that the video contained the lascivious depiction of the victim’s breasts, buttocks, and/or genitalia. After applying the guidelines outlined in Dost and given the below reasoning and authority, I am unable to conclude that the images depicted in the video were lascivious. Therefore, I would reverse the convictions of especially aggravated sexual exploitation of a minor in this case. In reaching this conclusion, I would apply the sixth Dost factor, whether the visual depiction is intended or designed to elicit a sexual response in the viewer, objectively rather than subjectively, as this court previously held in State v. John Michael Whitlock, No. E2010-00602-CCA-R3-CD, 2011 WL 2184966, at *7 (Tenn. Crim. App. June 6, 2011) (reviewing whether a videotape constituted “lascivious exhibition” of a girl’s pubic area and concluding that the sixth Dost factor must be analyzed objectively rather than subjectively). Finally, because there is sufficient evidence for a reasonable jury to conclude that the Defendant attempted to capture lascivious images on the video, I would reduce his convictions to attempted especially aggravated sexual exploitation of a minor and remand this matter to the trial court for re- sentencing.

Knox County Court of Criminal Appeals 05/04/15
State of Tennessee v. Thomas William Whited
E2013-02523-CCA-R3-CD
Authoring Judge: Judge John Everett Williams
Trial Court Judge: Judge Steven W. Sword

The defendant, Thomas William Whited, was convicted of nine counts of especially aggravated sexual exploitation of a minor, a Class B felony; one count of attempted especially aggravated sexual exploitation of a minor, a Class C felony; thirteen counts of observation without consent, a Class A misdemeanor; and one count of attempted observation without consent, a Class B misdemeanor. The defendant received an effective sentence of twenty-two years. On appeal, the defendant argues that: (1) the evidence is insufficient to support a finding that the defendant used a minor in the production of material that included the minor engaging in “sexual activity”; (2) the trial court erred in refusing to provide the jury with his proposed special instructions; (3) the trial court erred in refusing to permit cross-examination of the victims at the sentencing hearing; and (4) the trial court erred in imposing consecutive sentencing. After a thorough review of the record, the briefs of the parties, and the applicable law, we affirm the judgment of the criminal court.

Knox County Court of Criminal Appeals 05/04/15