Court of Criminal Appeals Opinions

Format: 04/25/2015
Format: 04/25/2015
State of Tennessee v. Ephraim J. Nielsen
E2014-00038-CCA-R3-CD
Authoring Judge: Judge Robert L. Holloway
Trial Court Judge: Judge Rex H. Ogle

After entering a conditional guilty plea to robbery pursuant to Tennessee Code Annotated section 40-35-313, Ephraim J. Nielsen (“the defendant”) was arrested on charges of burglary, vandalism over $1,000, and theft of property valued over $1,000 but less than $10,000. Based upon the new charges, his probation officer filed a probation violation warrant against him. After a hearing, the trial court revoked the Defendant’s probation and ordered him to serve the balance of his sentence. In this appeal, the Defendant argues that his probation should not have been revoked because the State did not offer proof of every element of the new charges against him. We affirm the judgment of the trial court.

Sevier County Court of Criminal Appeals 02/09/15
State of Tennessee v. Derick D. Armstrong
E2014-00888-CCA-R3-CD
Authoring Judge: Judge John Everett Williams
Trial Court Judge: Judge Steven Wayne Sword

The defendant, Derick D. Armstrong, was convicted of one count of attempted voluntary manslaughter, a Class D felony, and one count of employment of a firearm during the attempted commission of a felony, a Class C felony. On appeal, the defendant challenges the sufficiency of the evidence supporting his convictions. After thoroughly reviewing the record, the briefs of the parties, and the applicable law, we affirm the judgments of the trial court.

Knox County Court of Criminal Appeals 02/09/15
State of Tennessee v. Ashley Bradshaw-Concurring
W2014-00175-CCA-R3-CD
Authoring Judge: Judge James Curwood Witt, Jr.
Trial Court Judge: Judge J. Robert Carter, Jr.

I concur in the excellent opinion presented by the majority. I write separately to express a view concerning the effectuation of mergers of verdicts. The theory of merger in cases in which multiple verdicts of guilty reflect alternative theories of offending is predicated upon the distinction between a verdict of guilty, on the one hand, and a conviction, on the other.

Shelby County Court of Criminal Appeals 02/09/15
State of Tennessee v. Ashley Bradshaw
W2014-00175-CCA-R3-CD
Authoring Judge: Judge Roger A. Page
Trial Court Judge: Judge J. Robert Carter, Jr.

Appellant, Ashley Bradshaw, was convicted by a jury of three counts of aggravated child abuse, three counts of aggravated child neglect, and three counts of aggravated child endangerment. The trial court merged the convictions into one count of aggravated child abuse and sentenced appellant to twenty years in the Tennessee Department of Correction. On appeal, appellant argues that the evidence was insufficient to support her convictions. Following our review, we affirm the judgment of the trial court but remand for the trial court to clarify on the judgment sheets that the judgments have been merged into the first count.

Shelby County Court of Criminal Appeals 02/09/15
Jason Shawn Cunningham v. State of Tennessee
M2014-00380-CCA-R3-PC
Authoring Judge: Judge John Everett Williams
Trial Court Judge: Judge Seth W. Norman

On June 29, 2011, the petitioner entered guilty pleas to several offenses, including one count of the possession of 300 grams or more of cocaine, a Class A felony, and two counts of money laundering, Class B felonies.  The petitioner received an effective twenty-year sentence for these crimes.  The petitioner’s total effective sentence was forty-one years, twenty-one of which were for crimes not at issue in this appeal.  The petitioner filed a timely post-conviction petition, challenging his convictions for possession of over 300 grams of cocaine and two counts of money laundering on the basis that his trial counsel was deficient for failing to investigate these cases and that his trial counsel was operating under a conflict of interest when he represented the petitioner in the pleas.  The post-conviction court denied relief.  Because we conclude that trial counsel did not have an actual conflict of interest, that trial counsel’s performance was not deficient, that there was no showing of prejudice, and that the pleas were knowing and voluntary, we affirm the judgment of the post-conviction court.

Davidson County Court of Criminal Appeals 02/09/15
State of Tennessee v. Jay Herman Sanders
M2014-00346-CCA-R3-CD
Authoring Judge: Judge Robert L. Holloway
Trial Court Judge: Judge Thomas W. Graham

The Defendant, Jay Herman Sanders, appeals from the trial court’s denial of an alternative sentence and order to pay $250,000 in restitution.  He argues that the trial court abused its discretion when it sentenced him to 10 years in the Department of Correction and claims that the trial court failed to consider his future ability to pay restitution.  After a review of the record and the applicable law, we affirm the judgment of the trial court.

Marion County Court of Criminal Appeals 02/09/15
State of Tennessee v. Deshawn Mancill
E2014-00278-CCA-R3-CD
Authoring Judge: Judge Norma McGee Ogle
Trial Court Judge: Judge Steven W. Sword

The appellant, Deshawn Mahon Mancill, was convicted by a jury in the Knox County Criminal Court of possession of heroin with the intent to sell or deliver. The trial court sentenced the appellant as a Range II, multiple offender to sixteen years in the Tennessee Department of Correction. On appeal, the appellant challenges the sufficiency of the evidence supporting his conviction. Upon review, we affirm the judgment of the trial court.

Knox County Court of Criminal Appeals 02/06/15
State of Tennessee v. Joshua Edward Kilgore
E2014-01208-CCA-R3-CD
Authoring Judge: Judge Robert H. Montgomery, Jr.
Trial Court Judge: Judge Barry A. Steelman

The Defendant, Joshua Edward Kilgore, appeals the Hamilton County Criminal Court’s order revoking his probation for his conviction for violating the sex offender registry requirements and ordering his four-year sentence into execution. The Defendant contends that the trial court abused its discretion. We affirm the judgment of the trial court.

Hamilton County Court of Criminal Appeals 02/06/15
Kenneth Ray Jobe v. State of Tennessee
W2014-00997-CCA-R3-PC
Authoring Judge: Judge D. Kelly Thomas Jr.
Trial Court Judge: Judge R. Lee Moore Jr.

The Petitioner, Kenneth Ray Jobe, appeals as of right from the Dyer County Circuit Court’s denial of his petition for post-conviction relief. In this appeal, the Petitioner contends that he received ineffective assistance of counsel based upon trial counsel’s failure: (1) to communicate the amount of restitution that was included as a part of his guilty plea; (2) to file a motion to vacate his plea; and (3) to effectively communicate with him. Discerning no error, we affirm the judgment of the post-conviction court.

Dyer County Court of Criminal Appeals 02/06/15
State of Tennessee v. Tyler Young
W2013-01591-CCA-R3-CD
Authoring Judge: Judge Roger A. Page
Trial Court Judge: Judge Chris Craft

Appellant, Tyler Young, was convicted by a Shelby County jury of aggravated burglary, employing a firearm during the commission of a dangerous felony, and two counts of attempted aggravated robbery. The trial court ordered him to serve an effective sentence of fourteen years in the Tennessee Department of Correction. On appeal, he challenges the sufficiency of the evidence supporting his convictions for employing a firearm during the commission of a dangerous felony and attempted aggravated robbery and argues that the trial court erred in its sentencing. Following our review, we affirm the judgments of the trial court.

Shelby County Court of Criminal Appeals 02/06/15
State of Tennessee v. Jared Booth Spang
M2014-00468-CCA-R3-CD
Authoring Judge: Judge Robert L. Holloway
Trial Court Judge: Judge Steve R. Dozier

Jared Booth Spang (“the Defendant”) was indicted for voluntary manslaughter and aggravated assault.  The Defendant pleaded guilty to the lesser-included offense of reckless homicide.  Pursuant to a written plea agreement signed by the Defendant and the State, the State agreed it would take no position at the sentencing hearing as to whether the sentence would be deferred pursuant to Tennessee Code Annotated section 40-35-313.  At the sentencing hearing, the State argued against deferral, stating that “a permanent conviction is necessary [so as] not to depreciate the seriousness of this crime.”  The trial court sentenced the Defendant to three years probation and denied deferral, concluding “there is something permanent about death” and “there should be something permanent about . . . this conviction.”  We conclude that the State breached the plea agreement.  We, therefore, reverse and remand for a new sentencing hearing.

Davidson County Court of Criminal Appeals 02/06/15
State of Tennessee v. Jasper Clayton
W2014-00517-CCA-R3-CD
Authoring Judge: Judge Roger A. Page
Trial Court Judge: Judge Paula Skahan

Appellant, Jasper Clayton, pleaded guilty to facilitation of aggravated robbery. The trial court granted him judicial diversion for a three-year period. The State petitioned the court to revoke appellant’s judicial diversion, and after a hearing, the trial court granted the State’s request, revoking appellant’s judicial diversion and sentencing him to three years’ incarceration. On appeal, appellant contends that the State failed to comply with due process notice requirements and that the trial court abused its discretion by revoking his diversion. Following our review, we affirm the judgment of the trial court.

Shelby County Court of Criminal Appeals 02/05/15
State of Tennesse v. Jasper Clayton
W2014-00517-CCA-R3-CD
Authoring Judge: Judge Roger A. Page
Trial Court Judge: Judge Paula Skahan

Appellant, Jasper Clayton, pleaded guilty to facilitation of aggravated robbery. The trial court granted him judicial diversion for a three-year period. The State petitioned the court to revoke appellant’s judicial diversion, and after a hearing, the trial court granted the State’s request, revoking appellant’s judicial diversion and sentencing him to three years’ incarceration. On appeal, appellant contends that the State failed to comply with due process notice requirements and that the trial court abused its discretion by revoking his diversion. Following our review, we affirm the judgment of the trial court.

Shelby County Court of Criminal Appeals 02/05/15
State of Tennessee v. Terrance Johnson
W2013-02449-CCA-R3-CD
Authoring Judge: Judge Roger A. Page
Trial Court Judge: Judge Chris B. Craft

Appellant, Terrance Johnson, was convicted by a jury of second degree murder, employing a firearm during the commission of a dangerous felony, and burglary of an automobile. The trial court sentenced him to seventeen years for the murder conviction, six years for the firearm conviction, and one year for the burglary conviction for a total effective sentence of twenty-three years. On appeal, appellant argues that the armed dangerous felonies statute, Tennessee Code Annotated section 39-17-1324, does not list second degree murder as a dangerous felony in subsection 1324(i)(1) and that therefore (1) his conviction for employing a firearm during the commission of a dangerous felony cannot stand and (2) the trial court erred in its jury instructions with regard to this charge. The State concedes error and requests that this court reverse and dismiss the firearm conviction. Following our review, we reverse and dismiss appellant’s conviction for employing a firearm during the commission of a dangerous felony. We affirm the trial court’s judgments in all other respects.

Shelby County Court of Criminal Appeals 02/05/15
State of Tennessee v. Monterious Bell
W2013-01592-CCA-R3-CD
Authoring Judge: Judge James Curwood Witt Jr.
Trial Court Judge: Judge James C. Beasley Jr.

The defendant, Monterious Bell, appeals his Shelby County Criminal Court jury conviction of aggravated burglary, claiming that the evidence was insufficient to support his conviction. Discerning no error, we affirm.

Shelby County Court of Criminal Appeals 02/05/15
Lamario Hill v. State of Tennessee
W2013-02557-CCA-R3-PC
Authoring Judge: Judge Camille R. McMullen
Trial Court Judge: Judge Glenn I. Wright

The Petitioner, Lemario Hill, appeals the Shelby County Criminal Court’s denial of postconviction relief from his convictions for first degree felony murder, attempted especially aggravated robbery, and aggravated assault. On appeal, he contends he received ineffective assistance of counsel based on counsel’s failure (1) to present a jury nullification defense or any other defense strategy, (2) to promptly investigate his case, and (3) to adequately communicate with him regarding his defense. Upon review, we affirm the denial of postconviction relief.

Shelby County Court of Criminal Appeals 02/05/15
Jeremy Garrett v. State of Tennessee
W2013-02558-CCA-R3-PC
Authoring Judge: Presiding Judge Thomas T. Woodall
Trial Court Judge: Judge Chris Craft

Petitioner, Jeremy Garrett, was convicted, following a jury trial, of felony murder and especially aggravated robbery pertaining to the robbery and death of Dexter Birge. He appealed these convictions along with an additional conviction from the same jury trial for aggravated robbery of Mexwayne Williams. The Tennessee Supreme Court reversed the conviction for aggravated robbery of Mr. Williams, but affirmed the convictions for felony murder and especially aggravated robbery of Mr. Birge. State v. Garrett, 331 S.W.3d 392 (Tenn. 2011). Petitioner filed a pro se petition for post-conviction relief attacking his convictions for felony murder and especially aggravated robbery. Counsel was appointed to represent Petitioner, and counsel filed an amended petition. After an evidentiary hearing the trial court dismissed the petition for post-conviction relief, and Petitioner appeals that ruling. After a thorough review, we affirm the judgment of the trial court.

Shelby County Court of Criminal Appeals 02/05/15
State of Tennessee v. George Geovonni Thomas
E2013-01738-CCA-R3-CD
Authoring Judge: Judge Robert W. Wedemeyer
Trial Court Judge: Judge Walter Kurtz

A Knox County jury found the Defendant, George Geovonni Thomas, guilty of thirty-eight criminal charges, including first degree murder, aggravated rape, especially aggravated robbery, and especially aggravated kidnapping. The jury imposed sentences of life in prison for the first-degree murder convictions. The trial court imposed sentences for the remaining convictions for an effective sentence of two consecutive life sentences plus twenty-five years in the Tennessee Department of Correction. The Defendant appeals asserting that: (1) the trial court erred when it denied his motion to suppress his statements; (2) the trial court improperly admitted an “unreliable unrecorded statement attributed by law enforcement to [the Defendant];” (3) the criminal responsibility statute is void for vagueness; (4) the trial court erred when it retroactively applied the Dorantes evidentiary standard pertaining to circumstantial evidence; (5) the presentment was insufficient for failure to charge criminal responsibility; and (6) the evidence is insufficient to sustain his convictions. After a thorough review of the record and applicable authorities, we affirm the trial court’s judgments.

Knox County Court of Criminal Appeals 02/05/15
State of Tennessee v. Christopher Lee Blunkall
M2014-00084-CCA-R3-CD
Authoring Judge: Judge Norma McGee Ogle
Trial Court Judge: Judge Lee Russell

A Marshall County Circuit Court Jury convicted the appellant, Christopher Lee Blunkall, of rape of a child, and the trial court sentenced him to thirty-two years in the Tennessee Department of Correction.  On appeal, the appellant challenges the sufficiency of the evidence, the admission of testimony regarding the reaction of the victim’s family while the victim was missing, and the length of the sentence imposed. Upon review, we affirm the judgment of the trial court.

Marshall County Court of Criminal Appeals 02/05/15
State of Tennessee v. Thomas William Brown
M2013-02327-CCA-R3-CD
Authoring Judge: Judge Roger A. Page
Trial Court Judge: Judge Robbie T. Beal

Appellant, Thomas William Brown, was convicted by a jury of attempted aggravated burglary and sentenced to four years in the Tennessee Department of Correction.  On appeal, he argues that the trial court should have suppressed his statements to the police immediately after his arrest, that the verdict was contrary to the weight of the evidence, that the trial court erred by allowing the State to present evidence that witnesses identified appellant’s shirt in a “show up” procedure, that the trial court erred by allowing the CAD Operational Report into evidence during the State’s rebuttal proof, and that the trial court erred by denying a special jury instruction request.  Following our careful review of the evidence, we have concluded that the evidence was insufficient to support appellant’s conviction for attempted aggravated burglary and therefore reverse the judgment of the trial court.  Appellant’s charge is dismissed.

Williamson County Court of Criminal Appeals 02/04/15
James Allen Gooch v. State of Tennessee
M2014-00454-CCA-R3-PC
Authoring Judge: Judge Robert L. Holloway, Jr.
Trial Court Judge: Judge Dee David Gay

The Petitioner, James Allen Gooch, challenges the denial of his petition for post-conviction relief.  On appeal, the Petitioner argues that he was denied effective assistance of counsel, raising seven grounds to support his claim.  Additionally, he claims that cumulative error necessitates reversal of the post-conviction court.  After review, we affirm the judgment of the post-conviction court.

Sumner County Court of Criminal Appeals 02/04/15
State of Tennessee v. Letalvis Cobbins, et al. In Re: Gary Christian, et al.
E2013-02726-CCA-WR-CO
Authoring Judge: Judge Timothy L. Easter
Trial Court Judge: Judge Walter C. Kurtz

Petitioners, the parents of the victims in the underlying criminal cases, sought to intervene in those proceedings for the purpose of challenging the trial court’s order to seal portions of an investigative file of the Tennessee Bureau of Investigation that was identified during the motions for new trial in the underlying cases. Because we conclude that Petitioners have no statutory or constitutional right to access the sealed confidential information in the file, we affirm the trial court’s denial of their request to unseal.

Knox County Court of Criminal Appeals 02/04/15
State of Tennessee v. Joshua Tyrell Cross
E2014-00963-CCA-R3-CD
Authoring Judge: Judge Robert W. Wedemeyer
Trial Court Judge: Judge E. Shayne Sexton

The Defendant, Joshua Tyrell Cross, pleaded guilty to attempted rape, and the trial court sentenced him to thirty-one days of time served followed by eight years of probation. The Defendant filed a motion to withdraw his guilty plea, which the trial court denied after a hearing. On appeal, the Defendant contends that: (1) his judgment is void because the information charging him with attempted rape failed to allege each of the required elements of the offense; (2) the factual basis submitted in support of the Defendant’s conviction is insufficient because it did not contain the required culpable mental state; (3) his judgment of conviction should be reversed because there is no record that he was arraigned or that he waived arraignment; and (4) the trial court erred when it denied his motion to withdraw his guilty plea and remand the case for a preliminary hearing. After a thorough review of the record and applicable authorities, we reverse the trial court’s judgment and remand the case for a preliminary hearing on the original charges.

Scott County Court of Criminal Appeals 02/04/15
Yoni Sales Barahona v. State of Tennessee
M2014-00415-CCA-R3-PC
Authoring Judge: Judge Camille R. McMullen
Trial Court Judge: Judge J. Randall Wyatt, Jr.

The Petitioner, Yoni Sales Barahona, appeals from the denial of post-conviction relief by the Criminal Court for Davidson County.  He was convicted of aggravated assault and sentenced to ten years’ imprisonment in the Tennessee Department of Correction.  On appeal, the Petitioner argues that he received ineffective assistance of counsel at the appellate level.  Upon review, we affirm the judgment of the post-conviction court.

Davidson County Court of Criminal Appeals 02/04/15
State of Tennessee v. Derrick Dewayne Lyons
M2014-00178-CCA-R3-CD
Authoring Judge: Judge Robert W. Wedemeyer
Trial Court Judge: Judge Mark J. Fishburn

A Davidson County jury convicted the Defendant, Derrick Dewayne Lyons, of attempted voluntary manslaughter, aggravated assault, theft of property valued over $1,000.00, and evading arrest in a motor vehicle.  For these convictions, the trial court sentenced the Defendant to serve an effective sentence of eighteen years in the Tennessee Department of Correction.  On appeal, the Defendant claims that: (1) the trial court erred when it allowed the State to amend the indictment on the morning of trial; (2) the evidence is insufficient to support his convictions; (3) the State committed “prejudicial prosecutorial misconduct” during its closing argument; (4) the trial court improperly failed to instruct the jury on “mistake of fact” and “use of force”; and (5) the trial court erred when it failed to excuse a juror for cause.  After a review of the record and the foregoing authorities, we affirm the trial court’s judgments and the Defendant’s convictions.

Davidson County Court of Criminal Appeals 02/04/15