Court of Criminal Appeals Opinions

Format: 04/02/2015
Format: 04/02/2015
State of Tennessee v. Don Arturo Hyler
M2014-00221-CCA-R3-CD
Authoring Judge: Presiding Judge Thomas T. Woodall
Trial Court Judge: Judge Mark J. Fishburn

The defendant, Don Arturo Hyler, was convicted of the sale of 26 grams or more of cocaine and possession of 300 grams or more of cocaine with intent to sell in a drug-free school zone and received a total effective sentence of fifteen years at 100%.  On appeal, he argues that the evidence is insufficient to support his convictions; that the court should have instructed the jury as to the lesser-included offense of facilitation; that the State made an improper reference in the opening statement regarding prior bad acts of the defendant; and for failing to grant a severance of charges for trial.  Following our review, we affirm the judgments of the trial court.

Davidson County Court of Criminal Appeals 01/27/15
State of Tennessee v. Nicholas Kieth Phillips
M2013-02705-CCA-R3-CD
Authoring Judge: Judge Norma McGee Ogle
Trial Court Judge: Judge M. Keith Siskin

A Rutherford County Circuit Court Jury convicted the appellant, Nicholas Keith Phillips, of two counts of rape of a child, a Class A felony, and two counts of aggravated sexual battery, a Class B felony.  After a sentencing hearing, he received an effective forty-year sentence to be served at 100%.  On appeal, the appellant contends that the evidence is insufficient to support the convictions and that his dual convictions for the offenses violate principles of double jeopardy.  Based upon the oral arguments, the record, and the parties’ briefs, we affirm the appellant’s convictions of aggravated sexual battery but conclude that his dual convictions of rape of a child violate double jeopardy principles and must be merged. Moreover, because the trial court improperly sentenced the appellant, the case is remanded to the trial court for resentencing.

Rutherford County Court of Criminal Appeals 01/27/15
State of Tennessee v. Nico Farmer
W2013-02736-CCA-R3-CD
Authoring Judge: Judge Alan E. Glenn
Trial Court Judge: Judge Chris Craft

The defendant, Nico Farmer, was convicted by a Shelby County Criminal Court jury of felony murder and attempted aggravated assault, a Class D felony, and was sentenced to consecutive terms of life and eight years. He raises four issues on appeal: (1) whether the evidence is sufficient to sustain his convictions; (2) whether the trial court erred in ruling that his prior aggravated robbery convictions could be used to impeach his testimony; (3) whether the trial court erred by not charging the jury on self-defense; and (4) whether the trial court imposed an excessive sentence by enhancing his sentence for attempted aggravated assault and ordering that the sentences be served consecutively. Following our review, we affirm the judgments of the trial court.

Shelby County Court of Criminal Appeals 01/23/15
State of Tennessee v. Larry Futrell and Terrell Smith
W2013-01192-CCA-R3-CD
Authoring Judge: Judge Robert L. Holloway, Jr.
Trial Court Judge: Judge Chris Craft

Following a jury trial, the Defendants, Larry Futrell and Terrell Smith, were convicted of aggravated robbery. On appeal, the Defendants contend that the evidence presented at trial was insufficient to support their convictions. Mr. Smith also contends that the trial court erred in sentencing him to 26 years in the Department of Correction. Following our review, we affirm the judgments of the trial court.

Shelby County Court of Criminal Appeals 01/23/15
State of Tennessee v. Michael J. Inman
E2013-01227-CCA-R3-CD
Authoring Judge: Judge David A. Patterson
Trial Court Judge: Judge David Reed Duggan

The defendant, Michael Jerome Inman a/k/a Michael Jerome Bivens, entered guilty pleas to six offenses: five counts of theft, which were three Class D felonies, a Class E felony, and a Class A misdemeanor, as well as one count of criminal impersonation, a Class B misdemeanor. He eceived an effective fourteen-year sentence to be served on community corrections. A warrant was issued for violation of the terms of his community corrections sentence. After a hearing, the trial court found that the defendant had violated the terms of his community corrections sentence and ordered him to serve his sentence in the penitentiary. The defendant now appeals, arguing that the trial court abused its discretion in ordering the defendant to serve his sentence in confinement; and, whether the defendant had a right to be present in court when his letter to the clerk requesting jail credit was discussed. After a thorough review of the record, we affirm the judgment of the trial court.

Blount County Court of Criminal Appeals 01/23/15
State of Tennessee v. James Henry Allen
E2014-00529-CCA-R3-CD
Authoring Judge: Judge Timothy L. Easter
Trial Court Judge: Judge Robert E. Cupp

Defendant, James Henry Allen, was indicted by the Washington County Grand Jury for premeditated first degree murder, unlawful possession of a deadly weapon with the intent to employ it in the commission of a first degree murder, and a violation of an order of protection in connection with the murder of his ex-wife’s cohabiting boyfriend. During trial, the trial court dismissed the charge related to a violation of an order of protection. Defendant was convicted by a jury of first degree murder and unlawful possession of a deadly weapon with the intent to employ it in the commission of a first degree murder. As a result, he was sentenced to an effective life sentence with the possibility of parole. He appeals, challenging the admission into evidence of his statement to the police, the 911 tape, and the damaged trailer door, as well as the sufficiency of the evidence. After a thorough review of the record and applicable authorities, we determine: (1) the trial court properly admitted Defendant’s statement into evidence where there was no requirement that it be recorded; (2) the trial court properly admitted the 911 tape into evidence as an excited utterance and to rebut Defendant’s assertion that shots were fired from inside the trailer; (3) the trial court properly admitted the trailer door into evidence where there was ample secondary evidence to support the conclusion that the shots were fired from outside the trailer; and (4) the evidence was sufficient to support the conviction for first degree murder. As a result, the judgments of the trial court are affirmed.

Washington County Court of Criminal Appeals 01/23/15
State of Tennessee v. Tianna M. Amyx
E2014-00820-CCA-R3-CD
Authoring Judge: Judge Alan E. Glenn
Trial Court Judge: Judge R. Jerry Beck

The defendant, Tianna M. Amyx, pled guilty to aggravated burglary, a Class C felony, and theft over $500, a Class E felony, and was sentenced as a Range I, standard offender to concurrent terms of four years and two years, respectively, with the manner of service to be determined by the trial court. On appeal, she argues that the trial court erred in denying alternative sentencing. After review, we affirm the sentencing decision of the trial court.

Sullivan County Court of Criminal Appeals 01/23/15
State of Tennessee v. Patrick Leighton Ryan, Jr.
W2014-00327-CCA-R3-CD
Authoring Judge: Judge Alan E. Glenn
Trial Court Judge: Judge J. Weber McCraw

The defendant, Patrick Leighton Ryan, Jr., was convicted of misdemeanor theft under $500 and sentenced to eleven months and twenty-nine days of supervised probation, with credit for time served. On appeal, he argues that the trial court erred both by not requiring the State to make an election of offenses or giving a special jury instruction as to unanimity, in excluding a police property inventory from 2005, and in not taking judicial notice of the Grand Junction Police Manual and that the evidence is insufficient to sustain his conviction. Following our review, we affirm the judgment of the trial court.

Hardeman County Court of Criminal Appeals 01/22/15
State of Tennessee v. Carmel Borum aka Carnel Borum
W2014-00179-CCA-R3-CD
Authoring Judge: Judge James Curwood Witt, Jr.
Trial Court Judge: Judge W. Mark Ward

The defendant, Carmel Borum, also known as Carnel Borum, appeals his Shelby County Criminal Court jury convictions of two felonies – theft and evading arrest. He received an effective sentence of 18 years as a persistent offender. On appeal, he claims that the trial court erroneously admitted testimony about the value of the property in question and that the evidence was insufficient to support the convictions. Based upon our review of the record, the briefs, and the applicable law, we affirm the judgments of the trial court.

Shelby County Court of Criminal Appeals 01/22/15
State of Tennessee v. Artterraces Buchanan
W2014-00058-CCA-R3-CD
Authoring Judge: Judge Camille R. McMullen
Trial Court Judge: Judge Chris Craft

The Defendant-Appellant, Artterraces Buchanan, pleaded guilty to one count of reckless aggravated assault, a Class D felony. See T.C.A. § 39-13-102. The trial court denied the Defendant’s request for judicial diversion and imposed a two-year sentence involving split confinement. On appeal, the Defendant contends that the trial court erred in denying his application for judicial diversion. Upon our review of the record, we affirm the judgment of the trial court.

Shelby County Court of Criminal Appeals 01/22/15
Kenneth Eugene Black v. State of Tennessee
E2014-00872-CCA-CCA-R3-PC
Authoring Judge: Judge John Everett Williams
Trial Court Judge: Judge Bob R. McGee

The petitioner, Kenneth Eugene Black, appeals the denial of his petition for post-conviction relief. He pled guilty to two counts of sale of a schedule I controlled substance within a school zone, Class B felonies. As part of the agreement, he received concurrent eight-year Range I sentences to be served at 100%, which is the drug-free school zone release eligibility. The petitioner now contends that he is entitled to post-conviction relief because his guilty plea was not entered knowingly and voluntarily because he was denied his right to the effective assistance of counsel. Specifically, he contends that trial counsel was ineffective by failing to provide the petitioner with all discovery materials prior to his accepting the plea. Following review of the record and applicable law, we affirm the denial of post-conviction relief.
 

Knox County Court of Criminal Appeals 01/22/15
Gregory D. Valentine v. State of Tennessee
M2014-00977-CCA-R3-PC
Authoring Judge: Judge Camille R. McMullen
Trial Court Judge: Judge Dee David Gay

The Petitioner, Gregory D. Valentine, appeals the Sumner County Criminal Court’s summary dismissal of his pro se petition for post-conviction relief as waived or previously determined.  The State responds that the post-conviction court properly dismissed the Petitioner’s claims without a hearing.   Upon review, we reverse and remand for further proceedings with regard to the Petitioner’s ineffective assistance of counsel claim.

Sumner County Court of Criminal Appeals 01/21/15
State of Tennessee v. Alexa Williams aka Elizabeth Williams EL
W2014-01457-CCA-R3-CD
Authoring Judge: Judge James Curwood Witt Jr.
Trial Court Judge: Judge Donald Parish

The defendant, Alexa Williams, also known as Elizabeth Williams El, timely appeals pro se her Carroll County Circuit Court jury convictions of one count each of driving a motor vehicle while the privilege to drive was suspended, driving an unregistered automobile, and operating a motor vehicle without evidence of financial responsibility. The defendant claims on appeal (1) that “the trial court erred by issuing an in personam judgment without personal jurisdiction over the blood and flesh woman” and (2) that “the trial court erred in procuring a trial without evidence of a motor vehicle or traffic on the highway.” Upon our review of the record and the briefs in this case, we affirm the judgments of the trial court.

Carroll County Court of Criminal Appeals 01/20/15
State of Tennessee v. Andrew Joseph Aborizk
M2013-02835-CCA-R3-CD
Authoring Judge: Presiding Judge Thomas T. Woodall
Trial Court Judge: Judge Cheryl A. Blackburn

A Davidson County Grand Jury returned an indictment against Defendant, Andrew Joseph Aborizk, charging him with theft of property valued at more than $1,000 but less than $10,000.  Following a jury trial , Defendant was convicted of theft of property valued at more than $500 but less than $1,000.  The trial court imposed a sentence of two years as a Range One standard offender  to be served on supervised probation.  On appeal, Defendant argues that the evidence was insufficient to support his theft conviction because the State failed to prove identity of the perpetrator beyond a reasonable doubt. After a thorough review of the record, we affirm Defendant’s conviction for theft of property valued at more than $500 but less than $1,000.

Davidson County Court of Criminal Appeals 01/20/15
Monroe Dodson, Jr. v. State of Tennessee
M2014-00073-CCA-R3-PC
Authoring Judge: Judge Timothy L. Easter
Trial Court Judge: Judge Steve R. Dozier

Petitioner, Monroe Dodson, Jr., pled guilty to one count of aggravated rape, two counts of especially aggravated kidnapping, two counts of aggravated robbery, one count of aggravated burglary, and one count of employing a firearm during the commission of a dangerous felony.  After a sentencing hearing, Petitioner received an effective sentence of eighty-two years.  He now appeals the denial of his petition for post-conviction relief, alleging that his guilty plea was the result of ineffective assistance of counsel at trial.  After a thorough review of the record, we affirm the post-conviction court’s finding that Petitioner has failed to prove his ineffectiveness claim.

Davidson County Court of Criminal Appeals 01/20/15
State of Tennessee v. Ryan T. Brandon
E2014-00591-CCA-R3-CD
Authoring Judge: Judge Timothy L. Easter
Trial Court Judge: Judge E. Eugene Eblen, Jr.

Defendant, Ryan T. Brandon, was convicted of public intoxication and evading arrest. He received sentences of eleven months, twenty-nine days of supervised probation for evading arrest and thirty days of supervised probation for public intoxication. The sentences were ordered to be served concurrently. On appeal, Defendant challenges the trial court’s denial of his motion for judgment of acquittal on the evading arrest charge, limitation of his crossexamination of the arresting officer, and failure to instruct the jury as to the defense of necessity. We hold that Defendant waived any claim of error with regard to the motion for judgment of acquittal by continuing to participate in the trial after the close of the State’s proof by calling his own witness. However, we review the issue for sufficiency of the evidence. Based upon our review of the record, we hold that the evidence is insufficient to support the charge of evading arrest. The trial court’s judgment as to that conviction is hereby reversed and dismissed. We hold that the evidence is sufficient to support Defendant’s conviction for public intoxication. We also hold that the trial court’s exclusion of impeachment evidence, though in error, was harmless beyond a reasonable doubt. Finally, we hold that Defendant’s claim as to the jury instructions has been waived for failure to include the jury instructions in the record. The trial court’s judgment as to the public intoxication conviction is hereby affirmed.

Roane County Court of Criminal Appeals 01/16/15
State of Tennessee v. Jeffery Horskins
W2013-00888-CCA-R3-CD
Authoring Judge: Judge Thomas T. Woodall
Trial Court Judge: Judge W. Mark Ward

A Shelby County Grand Jury returned an indictment against Defendant, Jeffrey Horskins, charging him with attempted first degree murder, aggravated assault, two counts of aggravated burglary, and theft of property valued at more than one-thousand dollars. After a jury trial, Defendant was found guilty of reckless endangerment, aggravated assault, two counts of aggravated burglary, and theft of property valued between $500 and $1,000. The trial court merged the two convictions for aggravated burglary and imposed a sentence of eleven months and twenty-nine days for reckless endangerment, nine years for aggravated assault, nine years for aggravated burglary, and three years for theft of property. The trial court further found Defendant to be an offender whose record of criminal activity was extensive and ordered Defendant’s sentences for aggravated assault, aggravated burglary, and theft to be served consecutively for an effective twenty-one-year sentence as a Range Two offender. The misdemeanor sentence for reckless endangerment was ordered to be served concurrently to the other sentences. On appeal, Defendant argues that the length of his sentences are excessive and that the trial court erred in imposing consecutive sentencing. After a thorough review of the record, we affirm the judgments of the trial court.

Shelby County Court of Criminal Appeals 01/16/15
Jermaine Gwin v. State of Tennessee
W2014-00681-CCA-R3-HC
Authoring Judge: Judge Robert L. Holloway, Jr.
Trial Court Judge: Judge James M. Lammey

The Petitioner, Jermaine Gwin, appeals from the summary dismissal of his pro se petition for writ of habeas corpus. On appeal, he argues that the trial court lacked jurisdiction to convict him because (1) his indictment failed to track the language of the second degree murder statute and (2) the indictment failed to include an essential element of the offense. Upon review of the record and applicable law, we find the issues are without merit and affirm the judgment of the habeas corpus court.

Shelby County Court of Criminal Appeals 01/16/15
State of Tennessee v. Kayln Marie Polochak
M2013-02712-CCA-R3-CD
Authoring Judge: Judge Robert H. Montgomery
Trial Court Judge: Judge David A. Patterson

The Defendant, Kayln Marie Polochak, was convicted by an Overton County Criminal Court jury of first degree premeditated murder, first degree felony murder, conspiracy to commit first degree murder, a Class A felony, especially aggravated robbery, a Class A felony, and theft, a Class D felony.  See T.C.A. §§ 39-13-202, 39-13-103, 39-13-403, 39-14-103 (2014).  The trial court merged the first degree and felony murder convictions and imposed a life sentence.  The court also imposed concurrent sentences of fifteen years at 30% service for conspiracy to commit first degree murder, fifteen years at 100% service for especially aggravated robbery, and two years at 30% service for theft.  On appeal, she contends that (1) the evidence is insufficient to support her convictions, (2) the trial court erred by denying her motion for a judgment of acquittal, (3) the trial court erred by denying her motion to suppress her pretrial statements, (4) the trial court erred by refusing to exclude the video recording of the crime scene depicting the victim’s body at the scene and a photograph taken during the victim’s autopsy, (5) the trial court erred by excluding evidence of the victim’s fear of the codefendant, (6) the trial court erred by excluding witness testimony related to the Defendant’s mother’s consenting to police questioning of the Defendant, (7) the trial court erred by failing to provide an intoxication jury instruction, (8) the trial court erred by failing to provide a duress jury instruction, (9) the mandatory life imprisonment sentence violates the federal and Tennessee constitutional prohibitions against cruel and unusual punishment, and (10) the juvenile court erred by transferring her case to the criminal court.  We affirm the judgments of the trial court.

Overton County Court of Criminal Appeals 01/16/15
Antonio D. Alexander v. State of Tennessee
M2014-01022-CCA-R3-PC
Authoring Judge: Judge Timothy L. Easter
Trial Court Judge: Judge Mitchell Keith Siskin
Rutherford County Court of Criminal Appeals 01/16/15
State of Tennessee v. Roger Wayne Henry, Jr.
M2013-02490-CCA-R3-CD
Authoring Judge: Judge Robert H. Montgomery, Jr.
Trial Court Judge: Judge Monte D. Watkins

The Defendant, Roger Wayne Henry, Jr., was found guilty by a Davidson 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 nine years and six months at 100% service.  On appeal, he contends that (1) the evidence is insufficient to support his conviction, (2) the trial court erred by restricting his cross-examination, (3) the trial court erred by allowing the State to elicit inadmissible hearsay testimony, (4) the trial court erred by failing to order the State to play all of the Defendant’s recorded statements to the police, (5) the trial court erred by failing to grant trial counsel’s motion to withdraw, (6) the trial court erred by denying his requests to continue the trial and for funds for an expert, and (7) the trial court erred by failing to compel the State to produce the police file relative to the victim’s acting as a confidential informant.  We affirm the judgment of the trial court.

Davidson County Court of Criminal Appeals 01/16/15
Teresa Deion Smith Harris v. State of Tennessee
W2014-01020-CCA-R3-ECN
Authoring Judge: Judge Roger A. Page
Trial Court Judge: Judge C. Creed McGinley

Petitioner, Teresa Deion Smith Harris, appeals the denial of her petition for writ of error coram nobis. In the circuit court, petitioner raised a claim of newly discovered evidence relating to the timing of the victim’s death and the degree of torture that he endured. The coram nobis court summarily denied the petition. Following our review, we affirm the judgment of the coram nobis court.

Henry County Court of Criminal Appeals 01/16/15
Frazier Perry v. State of Tennessee
W2014-00690-CCA-R3-PC
Authoring Judge: Judge D. Kelly Thomas Jr.
Trial Court Judge: Judge R. Lee Moore Jr.

The Petitioner, Frazier Perry, appeals as of right from the Dyer County Circuit Court’s dismissal of his petition for post-conviction relief. The Petitioner contends that his guilty pleas were not knowingly and voluntarily entered due to the ineffective assistance of his trial counsel. Discerning no error, we affirm the judgment of the post-conviction court.

Dyer County Court of Criminal Appeals 01/15/15
State of Tennessee v. Jeremy Leniel Middlebrooks
W2014-00469-CCA-R3-CD
Authoring Judge: Judge D. Kelly Thomas
Trial Court Judge: Judge Joseph H. Walker III

The Defendant, Jeremy Leniel Middlebrooks, was indicted for two counts of aggravated assault, reckless endangerment, and being a felon in possession of a firearm. See Tenn. Code Ann. §§ 39-13-102, -13-103, -17-1307. Prior to trial, the State dismissed one of the counts of aggravated assault. Following a bifurcated jury trial, the Defendant was convicted of the lesser-included offenses of facilitation of aggravated assault and facilitation of reckless endangerment. See Tenn. Code Ann. § 39-11-403. The Defendant then pled guilty to being a felon in possession of a firearm while the jury was deliberating during the second phase of the trial. The trial court imposed an effective sentence of five years. In this appeal as of right, the Defendant contends (1) that the evidence was insufficient to sustain his convictions for facilitation of aggravated assault and facilitation of reckless endangerment; and (2) that the trial court erred by ruling that the Defendant’s prior conviction for attempted aggravated burglary could be used to impeach the Defendant if he chose to testify at trial. Discerning no error, we affirm the judgments of the trial court.

Tipton County Court of Criminal Appeals 01/15/15
Tina M. Dixon v. State of Tennessee
M2013-02173-CCA-R3-PC
Authoring Judge: Judge Norma McGee Ogle
Trial Court Judge: Judge J. S. "Steve" Daniel

The petitioner, Tina M. Dixon, filed a petition for post-conviction relief, alleging that her trial counsel were ineffective for failing to request a ruling on a motion for additional findings of fact related to a motion to suppress; failing to raise the issue of the trial judge and the prosecutor’s potential conflicts of interest prior to trial; and failing to advise her of a proposed plea agreement.  The post-conviction court denied the petition, and the petitioner appeals.  Upon review, we affirm the judgment of the post-conviction court.

Humphreys County Court of Criminal Appeals 01/15/15