Court of Criminal Appeals Opinions

Format: 05/27/2015
Format: 05/27/2015
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
State of Tennessee v. Christopher Lee Goins
E2014-01543-CCA-R3-CD
Authoring Judge: Judge D. Kelly Thomas, Jr.
Trial Court Judge: Judge Tammy M. Harrington

The Defendant, Christopher Lee Goins, appeals as of right from the Blount County Circuit Court’s revocation of his community corrections sentences and order of incarceration. The Defendant contends that the trial court abused its discretion in revoking his community corrections sentences and ordering his original sentences into effect. Discerning no error, we affirm.

Blount County Court of Criminal Appeals 05/04/15
Kevin Lee Johnson v. State of Tennessee
M2014-01575-CCA-R3-PC
Authoring Judge: Judge Roger A. Page
Trial Court Judge: Judge F. Lee Russell

Petitioner, Kevin Lee Johnson, was convicted of being a habitual motor vehicle offender, driving under the influence, and felony failure to appear, for which he received an effective sentence of nine years, six months to be served in the Tennessee Department of Correction.  He filed a petition for post-conviction relief alleging, inter alia, ineffective assistance of counsel for failing to provide him with a copy of the order declaring him to be a habitual motor vehicle offender.  The post-conviction court denied relief, and petitioner presents the same issue on appeal.  Following our review, we affirm the judgment of the post-conviction court.

Bedford County Court of Criminal Appeals 05/01/15
Deshaun Jantuan Lewis v. State of Tennessee
M2014-01108-CCA-R3-PC
Authoring Judge: Judge Alan E. Glenn
Trial Court Judge: Judge Steve R. Dozier

The petitioner, Deshaun Jantuan Lewis,appeals the post-conviction court’s denial of his petition for post-conviction relief, arguing that he received ineffective assistance of appellate counsel.  Based upon our review, we affirm the denial of the petition.

Davidson County Court of Criminal Appeals 05/01/15
State of Tennessee v. Gregory Lee Bray
W2014-01914-CCA-R3-CD
Authoring Judge: Judge Timothy L. Easter
Trial Court Judge: Judge J. Weber McCraw

Defendant, Gregory Lee Bray, was indicted in two separate cases for delivering Schedule IV substances. After pleading guilty in two separate cases to a total of two counts of delivery of a Schedule IV substance, Defendant was sentenced to an effective sentence of twenty years. Defendant appeals, challenging the trial court‟s imposition of consecutive sentences and denial of an alternative sentence. After a review, we determine there is no evidence that the trial court abused its discretion in sentencing Defendant to an effective sentence of twenty years or that the trial court improperly denied alternative sentencing. Consequently, the judgments of the trial court are affirmed.

Hardeman County Court of Criminal Appeals 05/01/15
Brian Roberson v. State of Tennessee
M2013-02319-CCA-R3-HC
Authoring Judge: Judge Camille R. McMullen
Trial Court Judge: Judge Timothy L. Easter

The Petitioner, Brian Roberson, appeals the Williamson County Circuit Court’s denial of his petition for writ of habeas corpus. The Petitioner previously entered guilty pleas to two counts of sale of cocaine (counts 1 and 3) and possession of cocaine (count 5). On appeal, he argues that he is entitled to withdraw his guilty pleas because the illegal sentences in counts 1 and 3 were a material, bargained-for element of his plea agreement. Upon review, we affirm the judgment of the habeas corpus court. However, we remand this matter to the original court of conviction for entry of corrected judgments consistent with this opinion.

Williamson County Court of Criminal Appeals 05/01/15
State of Tennessee v. Craig Michael Barbee
W2014-00835-CCA-R3-CD
Authoring Judge: Judge Alan E. Glenn
Trial Court Judge: Judge Clayburn L. Peeples

The defendant, Craig Michael Barbee, was convicted of attempted second degree murder, especially aggravated robbery, two counts of aggravated robbery, employing a firearm during the commission of a dangerous felony, and two counts of aggravated assault, which were merged with the aggravated robbery convictions. He received an effective sentence of 106 years. On appeal, the defendant argues that the trial court erred by not granting his motion for change of venue and in sentencing. Following our review, we affirm the judgments of the trial court.

Crockett County Court of Criminal Appeals 05/01/15
State of Tennessee v. Charles Riley, Jr.
M2014-01652-CCA-R3-CD
Authoring Judge: Judge Robert L. Holloway, Jr.
Trial Court Judge: Judge David Earl Durham

Charles Riley, Jr. (“the Defendant”) appeals as of right from the trial court’s order revoking his probation, arguing the trial court abused its discretion when it determined that he violated probation.  Upon review, we affirm the judgment of the trial court.

Wilson County Court of Criminal Appeals 05/01/15
State of Tennessee v. Claudale Renaldo Armstrong
M2014-01041-CCA-R3-CD
Authoring Judge: Judge Camille R. McMullen
Trial Court Judge: Judge Franklin Lee Russell

A Marshall County Circuit Court jury convicted the Defendant-Appellant, Claudale Renaldo Armstrong, of sale of .5 grams or more of cocaine base; delivery of .5 grams or more of cocaine base; sale of less than .5 grams of cocaine; and delivery of less than .5 grams of cocaine.  See T.C.A. § 39-17-417 (2011). The trial court merged the four alternative counts into two convictions and sentenced Armstrong as a Range II, multiple offender to a total effective sentence of twenty-six years in the Department of Correction.  The sole issue presented for our review is whether the evidence is sufficient to support the convictions.  Upon review, we affirm the judgments of the trial court.

Marshall County Court of Criminal Appeals 04/30/15
State of Tennessee v. Melvin Brown
W2014-00162-CCA-R9-CD
Authoring Judge: Judge Camille R. McMullen
Trial Court Judge: Judge W. Mark Ward

The Defendant, Melvin Brown, was indicted by the Shelby County Grand Jury for driving under the influence (“DUI”); DUI with blood alcohol more than .20%; violation of the implied consent law; reckless driving; and driving with a license revoked, suspended, or cancelled. The Defendant refused law enforcement’s request to submit to a blood test to determine his blood alcohol content, and his blood was taken, without a warrant and over his objections, pursuant to Tennessee Code Annotated section 55-10-406(f)(1) (Supp. 2011). The trial court subsequently granted the Defendant’s motion to suppress evidence of his blood alcohol content. In this interlocutory appeal, the State challenges the trial court’s conclusion that the Code section 55-10-406(f)(1) is unconstitutional and that no exception to the warrant requirement existed to justify the warrantless blood draw. Upon review, we conclude that Code section 55-10-406(f)(1) does not dispense with the warrant requirement and reverse the portion of the trial court’s judgment declaring the statute unconstitutional. Because no exception to the warrant requirement existed, however, we affirm the order of the trial court suppressing the results of the Defendant’s blood alcohol content.

Shelby County Court of Criminal Appeals 04/30/15
State of Tennessee v. Travontay Tremont Berry
W2014-00808-CCA-R3-CD
Authoring Judge: Judge John Everett Williams
Trial Court Judge: Judge Donald H. Allen

A jury convicted the defendant, Travontay Tremont Berry, of tampering with evidence, a Class C felony, and carrying a firearm with the intent to go armed, a Class A misdemeanor. The defendant appeals the sufficiency of the evidence for his felony conviction, arguing that he did not know that an investigation was pending at the time of the offense. Having reviewed the record, we conclude that the evidence is sufficient to support the convictions, and we affirm the judgment of the trial court. We remand for correction of the judgment form to reflect the correct classification of the tampering with evidence offense and for reconsideration of the sentence in light of the correction.

Madison County Court of Criminal Appeals 04/30/15
Ginger Ilene Hudson Stump v. State of Tennessee
M2014-01373-CCA-R3-PC
Authoring Judge: Judge Alan E. Glenn
Trial Court Judge: Judge Franklin Lee Russell

The petitioner, Ginger Ilene Hudson Stump, pled guilty to seven counts of forgery, of which six were Class E felonies and one was a Class D felony.  The trial court sentenced her as a career offender to twenty-four years in the Department of Correction.  On direct appeal, this court affirmed the petitioner’s convictions and sentence.  State v. Ginger Ilene Hudson Stump, No. M2012-02723-CCA-R3-CD, 2013 WL 5310526, at *1 (Tenn. Crim. App. Sept. 20, 2013).  Subsequently, she filed a pro se petition for post-conviction relief, alleging she received the ineffective assistance of counsel.  Counsel was appointed and, following an evidentiary hearing, the post-conviction court denied the petition.  Based upon our review, we affirm the judgment of the post-conviction court.

Bedford County Court of Criminal Appeals 04/29/15
State of Tennessee v. Loreto Espinosa, Jr.
M2013-02751-CCA-R3-CD
Authoring Judge: Judge Robert H. Montgomery, Jr.
Trial Court Judge: Judge Franklin Lee Russell

The Defendant, Loreto Espinosa, Jr., was convicted by a Bedford County Circuit Court jury of eighteen counts of aggravated rape of a child, Class A felonies. See T.C.A. § 39-13-531 (2014). The trial court sentenced the Defendant as a Range III, persistent offender to sixty years for each conviction at 100% service and ordered partial consecutive sentences. The court ordered Counts 1 and 18 to run consecutively to each other and Counts 2 through 17 to run concurrently to each other but consecutively to Counts 1 and 18, for an effective 180-year sentence. On appeal, he contends that (1) the evidence is insufficient to support his convictions, (2) the State failed to make a proper election of the offenses for Counts 2 through 17, and (3) his sentence is excessive. We conclude that insufficient evidence exists relative to Counts 1 through 17, and we reverse the judgments of the trial court, vacate the convictions, and dismiss the charges relative to those counts. Although the trial court failed to require the State to make an election of the offense relative to Count 18, we conclude that the error was harmless beyond a reasonable doubt and affirm the judgment of the trial court.

Bedford County Court of Criminal Appeals 04/29/15
State of Tennessee v. Glen Sewell
W2014-00984-CCA-R3-CD
Authoring Judge: Judge John Everett Williams
Trial Court Judge: Judge James C. Beasley, Jr.

The defendant, Glen Sewell, was convicted of one count of Class D felony theft of property, two counts of Class D felony vandalism, one count of Class E felony vandalism, and one count of Class A misdemeanor vandalism. The trial court imposed an effective sentence of thirty-six years, with three twelve-year sentences for the Class D felonies to be served consecutively to each other and concurrently with a six-year sentence for the Class E felony conviction and an eleven month and twenty-nine day sentence for the Class A misdemeanor. On appeal, the defendant contends that: (1) the evidence is insufficient to support his convictions for Class E felony vandalism, Class D theft of property, and Class D felony vandalism; (2) the trial court erred when interrupting trial counsel during voir dire; (3) the trial court erred in imposing consecutive sentences. After a thorough review of the record and the applicable law, we affirm the judgment of the trial court.

Shelby County Court of Criminal Appeals 04/29/15
State of Tennessee v. Anthony Draine aka Anthony Draine-Love
W2013-02436-CCA-R3-CD
Authoring Judge: Judge Norma McGee Ogle
Trial Court Judge: Judge Chris Craft

A Shelby County Criminal Court Jury convicted the appellant, Anthony Draine a.k.a. Anthony Draine-Love, of aggravated burglary. He was sentenced as a Range II, multiple offender to nine years in the Tennessee Department of Correction. On appeal, the appellant challenges the trial court’s denial of his motion to suppress and contends that the evidence was insufficient to sustain his conviction. Upon review, we affirm the judgment of the trial court.

Shelby County Court of Criminal Appeals 04/29/15
State of Tennessee v. Gerald McEwen
W2013-02692-CCA-R3-CD
Authoring Judge: Judge Norma McGee Ogle
Trial Court Judge: Judge Paula Skahan

A Shelby County Criminal Court Jury convicted the appellant, Gerald McEwen, of first degree premeditated murder and attempted first degree murder. The trial court imposed a total effective sentence of life imprisonment in the Tennessee Department of Correction. On appeal, the appellant challenges the sufficiency of the evidence sustaining his convictions and contends that the trial court erred by denying his motion for a mistrial. Upon review, we affirm the judgments of the trial court.

Shelby County Court of Criminal Appeals 04/29/15
State of Tennessee v. Kurt Brewer
M2014-00601-CCA-R3-CD
Authoring Judge: Judge Robert L. Holloway, Jr.
Trial Court Judge: Judge Thomas W. Graham

A Grundy County Grand Jury indicted Kurt Brewer, the Defendant, for one count of first degree premeditated murder, two counts of reckless endangerment with a deadly weapon, and one count of employing a firearm during the commission of a dangerous felony. A jury found the Defendant guilty of the lesser-included offense of reckless homicide and not guilty on both counts of reckless endangerment with a deadly weapon. The charge of employing a firearm during the commission of a dangerous felony was not submitted to the jury. The jury set the maximum fine for a class D felony, $5,000. The trial court imposed a four-year sentence to be served. The Defendant claims the trial court erred in not granting an alternative sentence and in denying judicial diversion. After a thorough review of the record, we affirm.

Grundy County Court of Criminal Appeals 04/28/15
State of Tennessee v. Casey Dewayne Moon
M2014-00886-CCA-R3-CD
Authoring Judge: Judge Roger A. Page
Trial Court Judge: Judge Cheryl A. Blackburn

A Davidson County jury convicted appellant, Casey Dewayne Moon, of aggravated burglary, a Class C felony, and theft of property valued under $500, a Class A misdemeanor.  The trial court sentenced him to four years for the aggravated burglary conviction and a concurrent sentence of eleven months, twenty-nine days for the misdemeanor theft conviction.  The trial court ordered him to serve the first six months in confinement with the remainder to be supervised in community corrections.  On appeal, appellant argues that the trial court erred by allowing the State to introduce evidence of a prior theft conviction; that the evidence was insufficient to support his convictions; and that the trial court erred in its sentencing.  Following our review, we affirm the judgments of the trial court.

Davidson County Court of Criminal Appeals 04/28/15
Cole Woodard v. State of Tennessee
W2014-00837-CCA-R3-PC
Authoring Judge: Judge Robert W. Wedemeyer
Trial Court Judge: Judge John W. Campbell

A Shelby County jury convicted the Petitioner, Cole Woodard, of sale of cocaine, possession of cocaine with intent to sell, and possession of cocaine with intent to deliver. The trial court sentenced the Petitioner to serve three concurrent sentences of ten years each for these convictions. On appeal, this Court affirmed the convictions, but it vacated the judgments and remanded the case for entry of judgments reflecting merger of the jury verdicts into a single conviction for sale of cocaine. State v. Cole Woodard, W2011-02224-CCA-R3-CD, 2012 WL 4057266 (Tenn. Crim. App., at Jackson, Sept. 17, 2012), no Tenn. R. App. P. 11 application filed. The Petitioner filed a petition seeking post-conviction relief on January 28, 2014, alleging that he had received the ineffective assistance of counsel. After a hearing regarding whether the Petitioner petition was untimely filed, the post-conviction court dismissed the petition as time-barred. We affirm the post-conviction court’s judgment.

Shelby County Court of Criminal Appeals 04/28/15
Matrin Becton v. State of Tennessee
W2014-00177-CCA-R3-PC
Authoring Judge: Presiding Judge Thomas T. Woodall
Trial Court Judge: Judge Glenn Ivy Wright

Following a jury trial, Petitioner, Matrin Becton, was convicted of first degree premeditated murder and sentenced to life imprisonment without possibility of parole. He was also convicted in the same trial for especially aggravated robbery and two counts of especially aggravated kidnapping. The trial court sentenced Petitioner to serve twenty-five years’ incarceration for each conviction of especially aggravated kidnapping and especially aggravated robbery and ordered consecutive sentencing which resulted in an effective sentence of life imprisonment without possibility of parole plus seventy-five years’. Petitioner’s convictions were affirmed on appeal. State v. Matrin Becton and Antonio Sykes, No. W1999-00581-CCA-R3-CD, 2002 WL 1349530 (Tenn. Crim. App. June 19, 2001). Petitioner filed a timely petition for post-conviction relief, which was amended and supplemented. After several years of delays, an evidentiary hearing was finally held in 2013. The post-conviction trial court denied relief and Petitioner has timely appealed that ruling. Following a thorough review we affirm the judgment of the post-conviction court.

Shelby County Court of Criminal Appeals 04/28/15
State of Tennessee v. Michael Lambdin
E2014-00547-CCA-R3-CD
Authoring Judge: Judge D. Kelly Thomas, Jr.
Trial Court Judge: Judge Steven W. Sword

The Defendant, Michael Lambdin, appeals as of right his conviction for first degree murder committed during the perpetration of an attempted robbery. In this appeal, the sole issue presented for our review is whether the evidence is sufficient to support his conviction for felony murder. Specifically, the Defendant contends that the State failed to prove felony murder because the evidence was insufficient to support the elements of the underlying felony and because he abandoned his intent to commit the underlying felony prior to the shooting and killing of the victim by his co-defendant. After reviewing the record and the applicable authorities, we affirm the judgment of the trial court.

Knox County Court of Criminal Appeals 04/27/15
State of Tennessee v. William Davidson Hamby, Jr.
M2014-00593-CCA-R3-CD
Authoring Judge: Judge John Everett Williams
Trial Court Judge: Judge Monte Watkins

The defendant, William Davidson Hamby, Jr., was convicted after a bench trial of aggravated kidnapping, a Class B felony, and he was sentenced to serve fourteen years in prison. On appeal, the defendant challenges the sufficiency of the convicting evidence. He also asserts that the trial court erred in not ordering a second evaluation of his competency after he initially refused to attend his own trial. After a thorough review of the record, we conclude that the evidence is sufficient to support the verdict and that the trial court’s failure to order a second evaluation was not error, and we accordingly affirm the judgment.

Davidson County Court of Criminal Appeals 04/27/15
Andrew Soimis v. State of Tennessee
M2014-01700-CCA-R3-HC
Authoring Judge: Judge Roger A. Page
Trial Court Judge: Judge Leon C. Burns, Jr.

Petitioner, Andrew Soimis, filed a petition for writ of habeas corpus alleging that his judgment was void because he was convicted without an indictment.  The habeas corpus court summarily dismissed the petition.  Upon our review, we affirm the judgment of the habeas corpus court.

Putnam County Court of Criminal Appeals 04/24/15