Tennessee Administrative Office of the Courts

Appellate Court Opinions

Format: 12/24/2014
Format: 12/24/2014
State of Tennessee v. Lester Arnold Clouse
M2013-02633-CCA-R3-CD

Appellant, Lester Arnold Clouse, was convicted of aggravated assault, a Class C felony; simple assault, a Class A misdemeanor; and resisting arrest, a Class B misdemeanor.  After merger of the resisting arrest conviction with the aggravated assault conviction, the trial court sentenced him to fifteen years and eleven months, twenty-nine days, respectively.  Appealing from his convictions and sentences, appellant argues that: (1) the trial court improperly denied his motion to suppress; (2) the trial court failed to approve the verdicts as thirteenth juror; (3) the evidence was insufficient to support his assault convictions; and (4) the trial court erred in sentencing him to fifteen years in confinement consecutive to other outstanding sentences.  Following our review, we affirm the convictions.  However, we reverse appellant’s sentences and remand this cause for a new sentencing hearing.

White County Court of Criminal Appeals 12/23/14
Vincent Sims v. State of Tennessee
W2014-00166-CCA-R3-PD

The Petitioner, Vincent Sims, appeals from the denial of his petition for writ of error coram nobis, in which he claimed he is intellectually disabled and, therefore, ineligible for the death penalty. On appeal, the Petitioner contends that the trial court erred in denying his petition for writ of error coram nobis and his stand-alone claim under the intellectual disability provisions in Tennessee Code Annotated section 39-13-203. We affirm the judgment of the trial court.

Shelby County Court of Criminal Appeals 12/23/14
State of Tennessee v. Jerome Wall
W2014-00782-CCA-R3-CO

Appellant, Jerome Wall, pleaded guilty to aggravated robbery and robbery. Appellant subsequently filed a motion to correct an illegal sentence pursuant to Tennessee Rule of Criminal Procedure 36.1, which the trial court summarily dismissed because appellant’s sentences had expired. On appeal, appellant argues that the trial court erred by summarily dismissing his motion because an illegal sentence may be challenged at any time pursuant to Rule 36.1 and that on remand, his case should be assigned to a different trial judge because the trial judge was not impartial as to the Rule 36.1 motion. The State concedes to appellant’s Rule 36.1 argument and states in its brief that this case should be reversed and remanded to the trial court. Following our review of the parties’ briefs, the record, and the applicable law, we reverse the trial court’s judgment and remand for proceedings consistent with this opinion.

Shelby County Court of Criminal Appeals 12/23/14
Dexter Frank Johnson v. State of Tennessee
E2014-00659-CCA-R3-ECN

Pro se Petitioner, Dexter Frank Johnson, appeals the summary dismissal of his third motion seeking to reopen his post-conviction proceedings and/or the denial of a writ of coram nobis by the Criminal Court of Hamilton County. He further claims that the post-1 conviction court erred by failing to appoint counsel to assist him with his petition because he is illiterate. Upon our review, we affirm the judgment of the post-conviction court.

Hamilton County Court of Criminal Appeals 12/23/14
Melvin Barnes v. Larry Salsberry, et al.
W2014-00646-COA-R3-CV

Defendants appeal a jury award in favor of Plaintiff. Finding material evidence to support the verdict, we affirm.

Shelby County Court of Appeals 12/23/14
Joseph Howard Green, Jr. v. State of Tennessee
M2014-00148-CCA-R3-PC

The petitioner, Joseph Howard Green, Jr., was originally charged with second degree murder, and he ultimately pled guilty to voluntary manslaughter, a Class C felony.  He received a six-year sentence to be served consecutively to another sentence.  In this appeal, the petitioner contends that: (1) his guilty plea was not knowingly and voluntarily made because he was mentally ill and unmedicated at the time of his plea and because he was not made aware of the consequences of the guilty plea; and (2) that trial counsel provided ineffective assistance of counsel. Upon review, we affirm the judgment denying relief of the post-conviction court. 

Davidson County Court of Criminal Appeals 12/22/14
State of Tennessee v. Craig Patrick Hebert
M2012-02299-CCA-R3-CD

A Davidson County jury convicted the defendant, Craig Patrick Hebert, of assault, and the trial court sentenced him to six months, which was suspended and ordered to be served on probation.  On appeal, the defendant contends that (1) the trial court erred in failing to charge the jury in accordance with Tennessee Pattern Jury Instruction – Criminal No. 42.23 (Duty to Preserve Evidence); and (2) that the evidence was insufficient to support his conviction. Following the denial of the motion for new trial, the defendant filed a petition for writ of error coram nobis, which was heard and denied.  This court consolidated the appeal of the denial of his petition with the original appeal as of right in this cause.  Upon review, we affirm the judgment of the trial court.

Davidson County Court of Criminal Appeals 12/22/14
Eric Bryan Howard v. Kelly Jo Halford
E2014-00002-COA-R3-JV

This case involves the trial court’s grant of a post-judgment motion to clarify conflicting provisions regarding the residential co-parenting schedule in the parties’ agreed permanent parenting plan. The mother filed the motion approximately five weeks after entry of the permanent parenting plan order. Following a hearing at which the trial court considered argument from both parties’ counsel but heard no proof, the court found in favor of the mother’s interpretation of the parties’ intent when the order was submitted. The father now appeals, asserting that the court’s ruling was a modification of the parenting plan made without proof of a material change of circumstance warranting a modification. We determine that the trial court’s order operated as a clarification of an ambiguous and contradictory provision in the permanent parenting plan, rather than a modification of the plan. However, because the trial court failed to hold an evidentiary hearing to determine the parties’ intent at the time the agreed permanent parenting plan was entered, we vacate the judgment and remand for an evidentiary hearing with subsequent clarification of the ambiguous provision at issue.

Cumberland County Court of Appeals 12/22/14
Terri Dunn v. William M. Dunn, Jr.
E2014-00706-COA-R3-CV

This is a divorce action involving issues of marital property valuation and distribution. The parties were married in 1975. The wife, Terri Dunn (“Wife”), filed for divorce from the husband, William M. Dunn, Jr. (“Husband”), on September 12, 2011. Following a somewhat protracted pre-trial history, the trial was conducted over four non- consecutive days in June and July 2013. Thereafter, the trial court issued a memorandum opinion valuing the assets in the marital estate and awarding Wife approximately 60% and Husband approximately 40% of the estate. The trial court also charged against Husband’s share of the marital estate $200,000.00 in dissipated assets. Wife has appealed. Discerning no error, we affirm.

Hamilton County Court of Appeals 12/22/14
State of Tennessee v. Olbin Euceda
M2013-01572-CCA-R3-CD

Defendant, Oblin Sabier Euceda, was charged in an eight-count indictment returned by the Davidson County Grand Jury with aggravated robbery of A.H. (the victims will be identified by initials) in Count 1, aggravated robbery of J.H. in Count 2, aggravated robbery of Z.H. (a child less than thirteen years of age) in Count 3, especially aggravated kidnapping of A.H. in Count 4, especially aggravated kidnapping of J.H. in Count 5, especially aggravated kidnapping of Z.H. (by use of a deadly weapon) in Count 6, especially aggravated kidnapping of Z.H. (a victim under thirteen years of age) in Count 7, and rape of a child, Z.H. in Count 8.  All charges were committed during a home invasion, and there was a co-defendant who is not before the court in this appeal.  The case proceeded to a jury trial where Defendant pled guilty to the first two aggravated robbery charges and the jury found him guilty as charged of the remaining offenses.  At the sentencing hearing, the trial court merged the convictions in Count 6 and Count 7 for one conviction of especially aggravated kidnapping of Z.H.  After determining the length of sentence for each of the seven convictions, the trial court ordered partial consecutive sentencing for an effective sentence of seventy-five years.  In his sole issue on appeal, Defendant asserts that the trial court erred by ordering consecutive sentencing.  After a thorough review of the record and the briefs, we affirm the judgments of the trial court.

Davidson County Court of Criminal Appeals 12/22/14
State of Tennessee v. Jason Lee Fisher
M2014-00615-CCA-R3-CD

The Defendant, Jason Lee Fisher, was convicted by a Marshall County Circuit Court jury of felony escape, a Class E felony.  See T.C.A. § 39-16-605(a) (2014).  The trial court sentenced the Defendant to six years’ confinement at 60% service to be served consecutively to a previous sentence.  On appeal, the Defendant contends that the evidence is insufficient to support his conviction and that the trial court erred by denying his motion for a judgment of acquittal.  We affirm the judgment of the trial court.

Marshall County Court of Criminal Appeals 12/22/14
James Patterson v. Prime Package & Label Co., LLC
M2013-01527-SC-WCM-WC

This workers’ compensation appeal involves the application of the recently enacted pain management provisions of Tenn. Code Ann. § 50-6-204(j) (2014). An employee who sustained a work-related injury in 2007 settled his workers’ compensation claim with his employer in 2010. The settlement enabled the employee to continue receiving pain management treatment from a physician in Lebanon, Tennessee. The employee moved to Vonore, Tennessee in late 2012. Because his pain-management physician was now 162 miles away, the employee requested his former employer to provide a new panel of pain management physicians closer to his new residence. The employer declined, citing Tenn. Code Ann. § 50-6-204(j)(2)(A) that exempts pain-management physicians who live within 175 miles of the employee from the general statutory “community” residence requirement. The employee filed a motion in the Circuit Court for Rutherford County to compel the employer to provide a new doctor. The trial court held that the new 175-mile rule did not apply to the employee’s claim and ordered the employer to provide a new panel of pain management physicians. The employer has appealed to the Special Workers’ Compensation Appeals Panel in accordance with Tenn. Sup. Ct. R. 51. We reverse the judgment of the trial court.

Rutherford County Workers Compensation Panel 12/22/14
State of Tennessee v. Demarcus Keyon Cole
W2013-02850-CA-R3-CD

The defendant, Demarcus Keyon Cole, was convicted by a Madison County jury of first degree felony murder and especially aggravated robbery, a Class A felony, and was sentenced by the trial court to consecutive terms of life and twenty years, to be served consecutively to a six-year sentence for a previous conviction. The sole issue the defendant raises on appeal is whether the evidence is sufficient to sustain his convictions. Following our review, we affirm the judgments of the trial court.

Madison County Court of Criminal Appeals 12/22/14
Octavious Taylor v. State of Tennessee
W2014-00678-CCA-R3-PC

The petitioner, Octavious Taylor, filed pro se in 2013 a timely petition for post-conviction relief challenging his 2012 Shelby County, guilty-pleaded convictions of aggravated robbery and especially aggravated robbery for which he received an effective 21-year sentence to be served at 100 percent in the Department of Correction. The petitioner asserted that his guilty pleas were not knowingly, intelligently, or voluntarily made and that his trial counsel rendered ineffective assistance. Following the appointment of counsel, the filing of an amendment to the petition, and an evidentiary hearing, the post-conviction court denied relief. In this timely appeal, the petitioner advances his claim of an infirm guilty plea. Because the record supports the decision of the post-conviction court, we affirm its judgment.

Shelby County Court of Criminal Appeals 12/22/14
Daniel J. Wunder v. Karen Ann Wunder
M2014-00008-COA-R3-CV

Mother appeals the trial court’s denial of her petition for contempt and for child support arrearages in this post-divorce action. We reverse in part, vacate in part, and remand for further proceedings.

Sumner County Court of Appeals 12/22/14
In Re Hannah M., et al.
M2013-02062-COA-R3-JV

This is a child custody and support case. The order appealed is not a final judgment so as to confer jurisdiction on this Court under Tennessee Rule of Appellate Procedure 3(a). Accordingly, we dismiss the appeal and remand the case to the trial court.

Sumner County Court of Appeals 12/22/14
Connie Redmond v. WalMart Stores, Inc., et al
M2014-00871-COA-R3-CV

This is a personal injury case. Appellant slipped and fell in a puddle of water while on Appellee’s premises. Appellant’s attorney filed her complaint one day after the statute of limitations had run on her claim. Appellee filed a motion for summary judgment, arguing that Appellant’s suit was time-barred. The trial court granted summary judgment in favor of Appellee. Appellant appeals, arguing that the discovery rule tolled the statute of limitations because all of appellant’s injuries could not be discovered on the same date as the fall. Alternatively, Appellant argues that the trial court erred when it did not grant an enlargement of the statute of limitations under Tennessee Rule of Civil Procedure 6.02. Discerning no error, we affirm and remand.

Davidson County Court of Appeals 12/22/14
State of Tennessee v. Kenneth Paul Colvett
M2013-02488-CCA-R3-CD

Following a jury trial, the Defendant, Kenneth Paul Colvett, was convicted of premeditated first degree murder and sentenced to life imprisonment with the possibility of parole. See Tenn. Code Ann. § 39-13-202. In this appeal as of right, the Defendant contends (1) that the jury erred by rejecting the defense of insanity; (2) that the trial court erred by not allowing defense counsel to take home prior written statements made by a witness and by not admitting extrinsic evidence of the statements of two witnesses during trial; (3) that the State failed to disclose exculpatory evidence as required by Brady v. Maryland, 373 U.S. 83 (1963); (4) that the trial court erred by refusing to provide the Defendant with a transcript of a prior hearing in this case; (5) that the State committed prosecutorial misconduct during the cross-examination of the Defendant’s expert witness; (6) that the trial court erred by questioning the Defendant about his decision not to testify at trial; (7) that the State committed prosecutorial misconduct during its closing argument by commenting on the Defendant’s decision not to testify; and (8) that the Defendant is entitled to a new trial based upon cumulative error.1 Following our review, we affirm the judgment of the trial court.

Marshall County Court of Criminal Appeals 12/19/14
In Re: Estate of John J. Goza
W2013-00678-COA-R3-CV

This is an appeal from a probate court order denying the request of an estate’s personal administrator to resign and be replaced by his attorney. This matter came to the probate court on remand from the court of appeals for the sole purpose of resolving issues related to an award of attorney’s fees. Before the probate court addressed the issue of attorney’s fees, the personal representative filed a motion seeking to resign as personal representative and have his attorney appointed in his place. The court entered an order denying the motion, and the Estate appealed. We find that the probate court’s denial of the personal representative’s motion to resign was within its discretion. We therefore affirm the judgment of the probate court.

Shelby County Court of Appeals 12/19/14
Diane West et al. v. Shelby County Healthcare Corporation d/b/a Reginal Medical Center at Memphis
W2012-00044-SC-R11-CV

This appeal involves the ability of a hospital to use a hospital lien to recover from a third-party tortfeasor the unadjusted cost of the medical services it provided to a patient whose injuries were caused by the third party. Three patients were injured in separate, unrelated motor vehicle accidents in Memphis, Tennessee. All of them were treated at the Regional Medical Center at Memphis, and either their insurance company or TennCare paid the hospital the full amount of the adjusted charges for their care, in accordance with their contracts with the hospital. Despite receiving these payments, the hospital declined to release the lien it had perfected under the Tennessee Hospital Lien Act, Tenn. Code Ann. §§ 29-22-101 to -107 (2012). The patients filed suit in the Circuit Court for Shelby County seeking to quash the liens and monetary damages. In response, the hospital asserted that its refusal to release the liens was consistent with the Tennessee Hospital Lien Act and was permitted by its contracts with the patients’ insurance companies. The trial court dismissed the suit on the merits, and the patients appealed to the Court of Appeals. The intermediate appellate court reversed the trial court, determining that the hospital could not maintain its lien because each of the patients’ debts had been extinguished when the hospital accepted payment from the patients’ insurance companies for the full amount of the hospital’s bill based on the adjusted charges it had agreed to with either the patient’s insurance company or TennCare. West v. Shelby Cnty. Healthcare Corp., No. W2012-00044-COA- R3-CV, 2013 WL 500777 (Tenn. Ct. App. Feb. 11, 2013), reh’g denied (Tenn. Ct. App. Mar. 12, 2013). We granted two of the three patients’ Tenn. R. App. P. 11 applications for permission to appeal. We have determined that, except for the unpaid co-pays and deductibles which are a patient’s responsibility, neither the Tennessee Hospital Lien Act nor the hospital’s contracts with the patients’ insurance companies authorized the hospital to maintain its lien after the patients’ insurance company paid the adjusted bill. However, we have also determined that one of the patients who had not extinguished her debt to the hospital was not entitled to have the lien against her extinguished.

Shelby County Supreme Court 12/19/14
In Re: Estate of John J. Goza
W2013-02240-COA-R3-CV

This is an appeal from a probate court order denying an Estate’s request to enter a writ of scire facias to show cause why a bank acting as trustee of certain funds should not be divested of those funds. The probate court determined in a prior case that the Estate’s claim to the funds was barred by res judicata. The court of appeals affirmed the probate court’s order and remanded the case for the sole purpose of resolving issues related to an award of attorney’s fees to the bank. On remand, the Estate filed its request for a writ of scire facias before the court addressed the issue of attorney’s fees. The probate court denied the Estate’s motion, stating that it raised the same issues that multiple courts determined were barred by res judicata. The Estate appealed. We affirm the judgment of the probate court and award damages for frivolous appeal under Tennessee Code Annotated section 27-1-122.

Shelby County Court of Appeals 12/19/14
Wall Transportation, LLC, et al.v. Damiron Corporation
M2014-00487-COA-R3-CV

This appeal involves in personam jurisdiction over the Appellee, an Indiana corporation. After finding a truck for sale on Appellee’s website, Appellant Carl Wall traveled to Indiana and purchased the truck there. After Mr. Wall brought the truck back to Tennessee, he allegedly discovered that Appellee’s agent had made certain misrepresentations about the vehicle’s condition. Appellants sued Appellee in Circuit Court in Robertson County, Tennessee. Appellee filed a Tennessee Rule of Civil Procedure 12.02(2) motion to dismiss for lack of personal jurisdiction, which the trial court granted. Discerning no error, we affirm and remand.

Robertson County Court of Appeals 12/19/14
Kelly Lynn Allbert v. Jason Edward Figueiredo
M2014-00095-COA-R3-CV

The trial court found Mother to be in contempt for the willful failure to pay child support and awarded Father past due and retroactive child support. The trial court also denied Mother’s petition to modify custody and awarded Father his attorney’s fees. We affirm.

Montgomery County Court of Appeals 12/19/14
State of Tennessee v. Rafael Antonio Bush
M2014-01193-CCA-R3-CD

The Petitioner, Rafael Antonio Bush, was convicted of especially aggravated robbery, aggravated burglary, and aggravated assault.  On direct appeal, this Court affirmed his convictions and sentence.  State v. Rafael Antonio Bush, No. M2002-02390-CCA-R3-CD, 2004 WL 794755 (Tenn. Crim. App., at Nashville, April 14, 2004), no Tenn. R. App. P. 11 application filed.  Subsequently, the Petitioner filed a petition for post-conviction relief, alleging that he received the ineffective assistance of counsel at trial.  The trial court denied the petition after a hearing, and this Court affirmed the post-conviction court’s judgment denying relief.  Rafael Antonio Bush v. State, No. M2005-02967-CCA-R3-PC, 2006 WL 2682825 at *1 (Tenn. Crim. App., at Nashville, Sept. 7, 2006), perm. app. denied (Tenn. Dec. 27, 2006).  On April 24, 2014, the Petitioner filed a motion to reopen his petition for post-conviction relief.  The post-conviction court denied the motion to reopen, and the Petitioner appeals that decision.  After a thorough review of the record and applicable law, we affirm the judgment of the post-conviction court.

Rutherford County Court of Criminal Appeals 12/18/14
Secdrick L. Booker v. State of Tennessee
M2014-00846-CCA-R3-CD

The Petitioner, Secdrick L. Booker, appeals the Davidson County Criminal Court’s dismissal of his motion to correct an illegal sentence.  The Petitioner contends that his convictions are void because he was sentenced in direct violation of Tennessee statutory law.  Upon a review of the record in this case, we are persuaded that the trial court properly denied the motion.  Accordingly, the judgment of the trial court is affirmed.

Davidson County Court of Criminal Appeals 12/18/14