Court of Criminal Appeals Opinions

Format: 01/22/2019
Format: 01/22/2019
State of Tennessee v. Edwin Millan
E2017-01053-CCA-R3-CD
Authoring Judge: Judge James Curwood Witt, Jr.
Trial Court Judge: Judge Andrew M. Freiberg

The defendant, Edwin Millan, appeals his Bradley County Criminal Court jury convictions of filing a false or fraudulent insurance claim, initiating a false police report, and tampering with evidence. In this appeal, the defendant contends that the trial court erred by excluding certain evidence, that the prosecutor engaged in misconduct by failing to correct false testimony offered by a State’s witness, that the trial court erred by refusing to instruct the jury that certain witnesses were accomplices as a matter of law, that the trial court erred by permitting a witness to testify as an expert, that the trial court erred by permitting certain testimony, that the trial court erred by denying the defendant’s motion to dismiss the evidence tampering charge, that the evidence was insufficient to support his convictions, and that the trial court erred by ordering a fully incarcerative sentence. Discerning no error, we affirm.

Bradley County Court of Criminal Appeals 11/01/18
State of Tennessee v. Quinton Dujaun Primm
M2017-02069-CCA-R3-CD
Authoring Judge: Judge Norma McGee Ogle
Trial Court Judge: Judge David D. Wolfe

The Appellant, Quinton Dujaun Primm, was convicted in the Dickson County Circuit Court of selling one-half gram or more of cocaine, a Class B felony, and selling less than one-half gram of cocaine, a Class C felony, and received consecutive sentences of twenty-five and fifteen years, respectively. On appeal, the Appellant contends that the trial court erred by allowing a lay witness to testify about what the witness heard on an audiotape, that the trial court erred by refusing to declare a mistrial when a witness revealed that the Appellant had been incarcerated previously, and that the evidence is insufficient to support the convictions. Based upon the record and the parties’ briefs, we affirm the judgments of the trial court.

Dickson County Court of Criminal Appeals 11/01/18
Terrence Justin Feaster v.State of Tennessee
E201800193-CCA-R3-PC
Authoring Judge: Judge James Curwood Witt, Jr.
Trial Court Judge: Judge Steven W. Sword

The petitioner, Terrence Justin Feaster, appeals the denial of his petition for postconviction relief, which petition challenged his 2012 Knox County Criminal Court jury convictions of attempted voluntary manslaughter, aggravated assault, and false imprisonment. In this appeal, the petitioner contends that he was deprived of the effective assistance of counsel on appeal. Discerning no error, we affirm.

Knox County Court of Criminal Appeals 11/01/18
State of Tennessee v. Richard Lee Diviney, Sr.
M2017-01513-CCA-R3-CD
Authoring Judge: Judge Timothy L. Easter
Trial Court Judge: Judge Forest A. Durard, Jr.

Defendant, Richard Lee Diviney, Sr., contends that his guilty plea should be set aside because the fee provision of Tennessee Code Annotated section 39-17-420(h)-(j) is unconstitutional and that the trial court erred by not “actually” applying a mitigating factor during sentencing. After a thorough review, we determine that Defendant’s challenge to Tennessee Code Annotated section 39-17-420(h)-(j) was resolved by the Tennessee Supreme Court’s holding in State v. Decosimo, 555 S.W.3d 494 (Tenn. 2018). Additionally, we hold that the trial court acted within its discretion when sentencing Defendant. Thus, we affirm the judgments of the trial court, but remand for entry of corrected judgments that properly indicate the merger of Counts Two and Three into Count One.

Marshall County Court of Criminal Appeals 11/01/18
Raymond Arthur Klein v. State of Tennessee
M2018-00155-CCA-R3-PC
Authoring Judge: Judge Timothy L. Easter
Trial Court Judge: Judge William R. Goodman, III

Petitioner, Raymond Arthur Klein, appeals the denial of his petition for post-conviction relief from his conviction for aggravated sexual battery. On appeal, Petitioner argues that he received ineffective assistance of counsel. After thorough review, we determine that Petitioner has failed to prove that trial counsel’s performance was deficient and affirm the judgment of the post-conviction court.

Montgomery County Court of Criminal Appeals 10/31/18
Michael J. McCann v. State of Tennessee
M2018-00192-CCA-R3-HC
Authoring Judge: Judge John Everett Williams
Trial Court Judge: Judge Robert L. Jones

The Petitioner, Michael J. McCann, appeals the Wayne County Circuit Court’s summary dismissal of his pro se petition for writ of habeas corpus. The Petitioner contends that a probation revocation involving certain 1994 drug convictions was in error and that the erroneous probation revocation led to an incorrect calculation of his pretrial jail credits. After a review of the record and applicable law, we conclude that the habeas corpus court did not commit error, and we affirm the habeas court’s dismissal of the petition.

Wayne County Court of Criminal Appeals 10/31/18
Calvin Kinzer v. State of Tennessee
M2018-00159-CCA-R3-PC
Authoring Judge: Judge John Everett Williams
Trial Court Judge: Judge Stella L. Hargrove

The Petitioner appeals the post-conviction court’s summary dismissal of his petition for post-conviction relief based on the post-conviction court’s finding that the Petitioner failed to state a colorable claim. On appeal, the Petitioner argues that the post-conviction court erred in dismissing his pro se petition without appointing counsel or holding an evidentiary hearing, and the State concedes that the post-conviction court erred. After a review of the record and applicable law, we reverse the judgment of the post-conviction court and remand for the appointment of counsel and for an evidentiary hearing.

Maury County Court of Criminal Appeals 10/31/18
State of Tennessee v. Edward Dewayne Shelton, Jr.
M2018-00319-CCA-R3-CD
Authoring Judge: Judge D. Kelly Thomas, Jr.
Trial Court Judge: Judge Mark J. Fishburn

The Appellant, Edward Dewayne Shelton, Jr., appeals as of right from the Davidson County Criminal Court’s summary denial of his “motion to dismiss the indictment and motion to withdraw guilty plea and motion to correct illegal sentence.” The Appellant contends (1) that his motion to withdraw his guilty plea was timely filed because there was no file stamp date on the judgment form; (2) that his guilty plea was not knowingly and voluntarily entered due to the ineffective assistance of his trial counsel; (3) that the charging indictment was void because it “was only signed by the foreman of the grand jury”; and (4) that his sentence was illegal because he was classified as a Range II, multiple offender rather than a Range I, standard offender. Discerning no error, we affirm the judgment of the trial court.

Davidson County Court of Criminal Appeals 10/31/18
State of Tennessee v. Tracy Douglass
W2017-01512-CCA-R3-CD
Authoring Judge: Judge Robert W. Wedemeyer
Trial Court Judge: Judge Chris Craft

A Shelby County jury convicted the Defendant, Tracy Douglass, of first degree premeditated murder, for which he received a life sentence. On appeal, the Defendant asserts that the trial court erred when it failed to declare a mistrial following the State’s improper statements during closing argument. He also asserts that the evidence presented at trial is insufficient to support the jury’s verdict. After review, we affirm the trial court’s judgment.

Shelby County Court of Criminal Appeals 10/30/18
Dale Samuel Waggoner v. State of Tennessee
M2017-02251-CCA-R3-PC
Authoring Judge: Judge J. Ross Dyer
Trial Court Judge: Judge Cheryl A. Blackburn

The petitioner, Dale Samuel Waggoner, appeals the denial of his post-conviction petition, arguing the post-conviction court erred in finding he received effective assistance of counsel at trial. Following our review, we affirm the denial of the petition.

Davidson County Court of Criminal Appeals 10/30/18
State of Tennessee v. H.C. Brown, Jr.
M2017-02155-CCA-R3-CD
Authoring Judge: Judge J. Ross Dyer
Trial Court Judge: Judge Mark J. Fishburn

A Davidson County grand jury indicted the defendant, H.C. Brown, Jr., with attempted first degree murder, aggravated assault by strangulation, false imprisonment, and violation of an order of protection. Following trial, a jury found the defendant guilty of aggravated assault by strangulation and violation of an order of protection, and the trial court imposed an effective sentence of fifteen years, eleven months, and twenty-nine days. On appeal, the defendant challenges the sufficiency of the evidence to support his aggravated assault conviction. After reviewing the record and considering the applicable law, we affirm the judgments of the trial court.

Davidson County Court of Criminal Appeals 10/30/18
Deaundra Donnell Smith v. State of Tennessee
M2018-00088-CCA-R3-PC
Authoring Judge: Judge Timothy L. Easter
Trial Court Judge: Judge Monte Watkins

Petitioner, Deaundra Donnell Smith, sought post-conviction relief on the basis of ineffective assistance of counsel after his convictions for felony murder and especially aggravated robbery were affirmed on direct appeal. The post-conviction court denied relief, finding that Petitioner failed to prove his allegations by clear and convincing evidence. For the following reasons, we affirm the judgment of the post-conviction court.

Davidson County Court of Criminal Appeals 10/30/18
In Re: Gary's Bonding Company
M2018-00459-CCA-R3-CD
Authoring Judge: Judge J. Ross Dyer
Trial Court Judge: Judge Thomas W. Graham

A final forfeiture was entered against the appellant, Gary’s Bonding Company, in the Marion County Circuit Court ordering the complete forfeiture of the bail bond in the case of the criminal defendant, Johnny Cook. On appeal, the appellant contends the trial court erred in ordering a final forfeiture. Because the notice of appeal was not timely filed in this matter, we are without jurisdiction to determine whether the trial court erred. Accordingly, the appeal is dismissed.

Marion County Court of Criminal Appeals 10/30/18
State of Tennessee v. Sedrick Darion Mitchell
M2017-00825-CCA-R3-CD
Authoring Judge: Judge Thomas T. Woodall
Trial Court Judge: Judge Forest A. Durard, Jr.

Defendant, Sedrick Darion Mitchell, was convicted of the sale and delivery of 0.5 grams or more of cocaine within 1,000 feet of a school and simple possession of cocaine. Defendant was sentenced as a career offender to an effective 60-year sentence of imprisonment. On appeal, Defendant claims that the evidence is insufficient to support his convictions; that his simple possession conviction should be reversed because he was questioned without an attorney present; and he challenges the constitutionality of Tennessee Code Annotated section 39-17-420(h), (i), and (j). Following our review, we affirm Defendant’s convictions.

Bedford County Court of Criminal Appeals 10/29/18
Richard Dickerson v. State of Tennessee
W2017-01572-CCA-R3-PC
Authoring Judge: Judge Alan E. Glenn
Trial Court Judge: Judge Paula L. Skahan

The Petitioner, Richard Dickerson, appeals the post-conviction court’s denial of his petition for post-conviction relief, arguing that he received ineffective assistance of counsel because trial counsel coerced him into testifying and failed to discover a mistake in his presentence report. After thorough review, we affirm the denial of the petition.

Shelby County Court of Criminal Appeals 10/25/18
State of Tennessee v. German Calles
M2017-01552-CCA-R3-CD
Authoring Judge: Judge J. Ross Dyer
Trial Court Judge: Judge David M. Bragg

A Rutherford County jury convicted the defendant, German Calles, of one count of attempted voluntary manslaughter, four counts of aggravated assault while acting in concert with others, two counts of attempted especially aggravated robbery, one count of especially aggravated burglary, two counts of employment of a weapon during the commission of a dangerous felony, two counts of conspiracy to commit especially aggravated robbery, and one count of conspiracy to commit especially aggravated burglary, for which the trial court imposed an effective sentence of twenty-six years in confinement. On appeal, the defendant contends the trial court erred when setting the length of his sentences and ordering partial consecutive sentences. Following our review of the record and applicable authorities, we affirm the judgments of the trial court.

Rutherford County Court of Criminal Appeals 10/25/18
Gregory Duff v. State of Tennessee
E2017-01757-CCA-R3-PC
Authoring Judge: Judge J. Ross Dyer
Trial Court Judge: Judge Steven Wayne Sword

The petitioner, Gregory Duff, appeals the denial of his post-conviction petition, arguing the post-conviction court erred in finding he received effective assistance of counsel at trial. Following our review, we affirm the denial of the petition.

Knox County Court of Criminal Appeals 10/25/18
State of Tennessee v. Amanda Beth Marcy
M2018-00540-CCA-R3-CD
Authoring Judge: Judge Timothy L. Easter
Trial Court Judge: Judge David A. Patterson

Defendant, Amanda Beth Marcy, appeals from the denial of her “Motion to Amend Revocation Order” in which she argued that the trial court failed to award her credit for time served on Community Corrections when her probation was revoked. For a multitude of reasons, we dismiss the appeal.

Putnam County Court of Criminal Appeals 10/25/18
Luis G. Mendoza v. State of Tennessee
W2017-02373-CCA-R3-ECN
Authoring Judge: Judge J. Ross Dyer
Trial Court Judge: Judge Roy B. Morgan, Jr.

The pro se petitioner, Luis G. Mendoza, appeals the Henderson County Circuit Court’s dismissal of his motion for writ of error coram nobis. The State has filed a motion requesting that this Court affirm the lower court’s denial of relief pursuant to Rule 20 of the Rules of the Court of Criminal Appeals. Upon review, we conclude that the State’s motion is well-taken. Accordingly, we affirm the summary dismissal of the motion.

Henderson County Court of Criminal Appeals 10/24/18
State of Tennessee v. Linda Anne Dunavant
W2018-00068-CCA-R3-CD
Authoring Judge: Judge Alan E. Glenn
Trial Court Judge: Judge Joe H. Walker, III

The Defendant, Linda Anne Dunavant, was convicted of aggravated assault and filing a false police report and sentenced, respectively, to terms of three years and two years, to be served concurrently. On appeal, she argues that the evidence was insufficient to sustain the conviction for aggravated assault, and that the court erred in sentencing. Following our review, we affirm the judgments of the trial court.

Tipton County Court of Criminal Appeals 10/24/18
State of Tennessee v. Randy Louis Roe
M2017-01886-CCA-R3-CD
Authoring Judge: Judge John Everett Williams
Trial Court Judge: Judge Dee David Gay

A jury convicted the Defendant, Randy Louis Roe, of three counts of rape of a child, one count of especially aggravated sexual exploitation of a minor, two counts of sexual exploitation of a minor, and one count of solicitation to commit rape of a child. He received an effective sentence of thirty-five years in prison. A few days prior to trial, the State alerted the Defendant to the existence of voluminous documents consisting of emails between the Defendant and the victim which had not previously been produced in discovery. The Defendant sought a continuance. The trial court denied the continuance but ruled that the new materials would not be admissible unless the Defendant “opened the door” during his testimony. On appeal, the Defendant seeks a new trial based on the trial court’s ruling on the admissibility of the emails. After a thorough review of the record, we discern no error and affirm the judgments.

Sumner County Court of Criminal Appeals 10/24/18
State of Tennessee v. John D. Henry
E2017-01989-CCA-R3-CD
Authoring Judge: Judge Norma McGee Ogle
Trial Court Judge: Judge Steven Wayne Sword

The Appellant, John D. Henry, was convicted in the Knox County Criminal Court of driving under the influence (DUI) per se, fifth offense, and driving on a revoked license and received an effective two-year sentence to be served as 150 days in jail with the remainder to be served on supervised probation. On appeal, the Appellant contends that the trial court erred by refusing to grant his motions to suppress evidence because his warrantless stop did not fall under the exigent circumstances exception to the warrant requirement and because he did not voluntarily consent to his warrantless blood draw. Based upon the oral arguments, the record, and the parties’ briefs, we affirm the judgments of the trial court.

Knox County Court of Criminal Appeals 10/23/18
State of Tennessee v. Jason Kane Ivey
E2017-02278-CCA-R3-CD
Authoring Judge: Judge Robert L. Holloway, Jr.
Trial Court Judge: Judge Steven Wayne Sword

Jason Kane Ivey, Defendant, was convicted following a jury trial of two counts of misdemeanor theft based on alternative theories and one count of Class D felony burglary. The trial court merged the theft conviction in Count 3 into the theft conviction in Count 2 and then merged the theft conviction in Count 2 into the burglary conviction in Count 1 and sentenced Defendant to serve four years as a Range II multiple offender. Defendant claims that his burglary conviction “violated constitutional due process protections” because Tennessee Code Annotated section 39-14-402 is unconstitutionally vague and subsection 39-14-402(a)(3) failed to give him fair warning that his conduct was forbidden by the burglary statute. After a thorough review of the record, the briefs, and applicable law, we hold that Tennessee Code Annotated section 39-14-402 is not unconstitutionally vague and that subsection 39-14-402(a)(3) provided fair warning to a person of common intelligence that a person could be convicted of burglary for committing theft after entering a building open to the public, knowing the owner had revoked its effective consent for the person to enter. We affirm the judgments of conviction.

Knox County Court of Criminal Appeals 10/23/18
State of Tennessee v. Nikia Bowens
E2017-02075-CCA-R3-CD
Authoring Judge: Judge Robert L. Holloway, Jr.
Trial Court Judge: Judge Steven Wayne Sword

A jury convicted Defendant, Nikia Bowens, of six counts of theft of property under the value of $500 and burglary in case number 105992, and of theft of property under the value of $500 and burglary in case number 106786. The trial court ordered Defendant to serve a total effective sentence of eighteen years in the Tennessee Department of Correction for his convictions in both cases. On appeal, Defendant does not challenge the theft convictions, but asserts that his burglary convictions violate the principles of due process under the Tennessee and United States Constitutions because Tennessee Code Annotated section 39-14-402(a)(3) is unconstitutionally vague and does not provide defendants fair warning that they can be prosecuted for burglary if they commit or attempt to commit a felony, theft or assault after entering a building open to the public knowing that the property owner has revoked its consent for them to enter. After a thorough review of the facts and applicable case law, we conclude that subsection 39-14- 402(a)(3) is not vague, that the word “building” in subsection -402(a)(3) is not ambiguous, and that Defendant’s due process rights were not violated by his burglary convictions. Thus, we affirm Defendant’s convictions, but remand for correction of judgments.

Knox County Court of Criminal Appeals 10/23/18
State of Tennessee v. Christopher C. Solomon
M2018-00456-CCA-R3-CD
Authoring Judge: Judge John Everett Williams
Trial Court Judge: Judge Dee David Gay

The Defendant, Christopher C. Solomon, entered an open guilty plea to aggravated vehicular homicide, aggravated vehicular assault, and leaving the scene of an accident. Following a sentencing hearing, the trial court imposed an effective sentence of thirty-three years and imposed a restriction banning the Defendant from driving for life. On appeal, the Defendant contends that the trial court imposed an excessive sentence and erred in imposing a lifetime ban from driving. We conclude that the Defendant’s sentence is not excessive but that the trial court erred in imposing the lifetime driving ban. Accordingly, we remand for entry of a corrected judgment for the Defendant’s aggravated vehicular homicide conviction to reflect that the Defendant’s license is to be revoked in accordance with Tennessee Code Annotated section 55-50-501(a)(1). We otherwise affirm the judgments of the trial court.

Sumner County Court of Criminal Appeals 10/23/18