Tennessee Administrative Office of the Courts

Appellate Court Opinions

Format: 05/23/2015
Format: 05/23/2015
Kevin Lee Johnson v. State of Tennessee
M2014-01166-CCA-R3-PC

The Petitioner, Kevin Lee Johnson, appeals as of right from the Marshall County Circuit Court’s summary dismissal of his petition for post-conviction relief.  The Petitioner contends that the post-conviction court erred in summarily dismissing his petition for post-conviction relief for two separate convictions: (1) a 2012 conviction for driving after having been declared a motor vehicle habitual offender (“MVHO”) and (2) a 2013 conviction for failure to appear.  Following our review, we affirm the post-conviction court’s summary dismissal of the Petitioner’s claim regarding his 2012 MVHO conviction for having been untimely filed.  However, we reverse the post-conviction court’s summary dismissal of the Petitioner’s claim regarding his 2013 failure to appear conviction because the Petitioner stated a colorable claim for relief and remand the case to the post-conviction court for further proceedings consistent with this opinion.

Marshall County Court of Criminal Appeals 05/22/15
Billy Jack Cook v. State of Tennessee
M2014-00616-CCA-R3-PC

The petitioner, Billy Jack Cook, filed a petition for post-conviction relief in the Sumner County Criminal Court, alleging that his guilty pleas were not knowingly and voluntarily entered. After a hearing, the post-conviction court denied relief, and the petitioner appeals. Upon review, we affirm the judgment of the post-conviction court.

Sumner County Court of Criminal Appeals 05/22/15
State of Tennessee v. Gordon Herman Braden, III
M2014-01402-CCA-R3-CD

The defendant, Gordon Herman Braden, III, appeals the revocation of his community corrections sentence, claiming that the trial court erred by ordering that he serve the balance of his sentence in confinement.  Discerning no error, we affirm.

Davidson County Court of Criminal Appeals 05/22/15
John E. Carter v. Sharon Taylor, Warden
E2014-01065-CCA-R3-HC

The Petitioner, John E. Carter, appeals as of right from the Johnson County Criminal Court's summary dismissal of his petition for writ of habeas corpus. The Petitioner contends that his due process rights were violated because, at the time of his trial, he was not given “fair warning” that the negation of an element of a criminal offense was recognized as a defense in this state. Following our review, we affirm the judgment of the habeas corpus court.

Johnson County Court of Criminal Appeals 05/22/15
State of Tennessee v. Patrick Lee Mitchell
M2014-01129-CCA-R3-CD

Pursuant to Rule 37(b) of the Tennessee Rules of Criminal Procedure, the defendant, who pleaded guilty to a single count of driving under the influence (“DUI”), appeals a certified question of law related to the trial court’s denial of his motion to suppress the results of blood alcohol testing. Discerning no error, we affirm the judgment of the trial court.

Williamson County Court of Criminal Appeals 05/22/15
State of Tennessee v. Cheyne R. Stewart
M2014-00074-CCA-R3-CD

The Defendant, Cheyne R. Stewart, was convicted by a Franklin County Circuit Court jury of criminal attempt to commit sexual battery, a Class A misdemeanor. See T.C.A. §§ 39-13-505(a)(3) (2014) (sexual battery), 39-12-101 (2014) (attempt). The trial court sentenced him to eleven months, twenty-nine days of probation. On appeal, he contends that (1) the evidence is insufficient to support his conviction, (2) the court erred by failing to provide his requested jury instructions, (3) the court erred by limiting defense counsel’s questioning of character witnesses, (4) the court committed plain error by failing to instruct the jury on a lesser included offense, and (5) the court erred by failing to fulfill its duties as the thirteenth juror. We affirm the judgment of the trial court.

Franklin County Court of Criminal Appeals 05/22/15
State of Tennessee v. Travis Heath King
M2014-01478-CCA-R3-CD

The defendant, Travis Heath King, appeals the summary dismissal of his motion, filed pursuant to Tennessee Rule of Criminal Procedure 36.1, to correct what he believes to be an illegal sentence.  Because the defendant stated a colorable claim for relief under the terms of Rule 36.1, the trial court erred by summarily dismissing his motion.  Accordingly, we reverse the judgment of the trial court and remand the case for further proceedings.

Maury County Court of Criminal Appeals 05/22/15
State of Tennessee v. Gerald Stephen Cassell and Brian James Beckwith
W2013-02368-CCA-R3-CD

The Defendant-Appellants, Gerald Stephen Cassell and Brian James Beckwith, were jointly convicted by a Hardin County jury of one count of aggravated robbery, a Class B felony. See T.C.A. § 39-13-402. The trial court ordered each Defendant to serve twelve years in the Tennessee Department of Correction, consecutive to their unserved sentences in Florida. In this consolidated appeal, the Defendants argue that the trial court erred in denying their motion to suppress a witness‟s pretrial and trial identifications of them, the evidence is insufficient to sustain their aggravated robbery conviction, and the trial court erred in sentencing them. In addition, Cassell argues that the trial court erred in admitting witness testimony regarding the contents of a WalMart surveillance video. Upon review, we affirm the judgments of the trial court.

Hardin County Court of Criminal Appeals 05/22/15
State of Tennessee v. Antonio Crenshaw
W2014-01367-CCA-R3-CD

The Defendant-Appellant, Antonio Crenshaw, was convicted by a Shelby County jury of the charged offense of robbery, and the trial court sentenced him as a Range III, persistent offender to fifteen years. On appeal, Crenshaw argues: (1) the evidence is insufficient to sustain his conviction; (2) the trial court erred by instructing the jury on the generic offense of theft of property rather than the offense of shoplifting, by providing an incomplete charge for theft of property, and by giving a confusing definition for the term “violence” in the robbery charge in response to a question from the jury; (3) he was deprived of due process and a fair trial when the trial court corrected defense counsel during and after his closing argument, when the trial court ruled against him on a Rule 404(b) issue, and when a witness later testified, over his objection, that employees informed her Crenshaw had been “stealing again” after the incident in this case; and (4) the trial court lacked jurisdiction over his case because the grand jury foreperson on the grand jury indicting him possibly served longer than her two-year term. Upon review, we affirm the trial court‟s judgment.

Shelby County Court of Criminal Appeals 05/22/15
Brandon Mobley v. State of Tennessee
E2014-00481-CCA-R3-PC

The Petitioner, Brandon Mobley, appeals as of right from the Knox County Criminal Court's dismissal of his petition for post-conviction relief. The Petitioner contends that he received ineffective assistance of counsel when his trial counsel allowed a stun belt to be placed on the Petitioner without a hearing or any evidence from the State that use of the stun belt served a legimate necessity. Specifically, the Petitioner argues that wearing the stun belt forced him to testify against his will, affected his demeanor while testifying, impeded his ability to communicate with trial counsel, and “imparied his ability to take an active interest in the presentation of his case.” Following our review, we affirm the judgment of the post-conviction court.

Knox County Court of Criminal Appeals 05/21/15
Irene Kesterson v. Lanny Jones, et al.
E2013-02092-COA-R3-CV

This appeal concerns three notes executed by the defendants and made payable to the plaintiff. When the plaintiff filed suit, the defendants filed a motion for summary judgment, arguing that the statute of limitations for recovery on the notes had passed. The trial court denied the motion for the summary judgment. Following a bench trial, the court ruled in favor of the plaintiff, finding that the defendants were estopped from pleading the statute of limitations as a defense and that they had revived the obligation after the limtiations period ran. The defendants appeal. We affirm.

Greene County Court of Appeals 05/21/15
Robert Randall Capps, et al. v. Adams Wholesale Co.,Inc., et al.
E2014-01882-COA-R3-CV

This appeal concerns the applicability of an arbitration agreement. The plaintiffs purchased decking product manufactured by the defendant. The product was covered by a limited warranty, which included an arbitration agreement. The limited warranty was never provided to the plaintiffs. Instead, a notice was attached to the product, advising them to retrieve a copy of the limited warranty through the defendant's website. Following installation of the product, the plaintiffs experienced problems with the product. The defendant advised the plaintiffs that the issue was merely cosmetic. The plaintiffs filed suit. The defendant filed a motion to dismiss or to stay the proceedings and compel arbitration. The trial court denied the motion, finding that the parties had not entered into an agreement to arbitrate disputes. The defendant appeals. We affirm.

Greene County Court of Appeals 05/21/15
State of Tennessee v. Robert R. Bishop
M2014-01485-CCA-R3-CD

Appellant, Robert R. Bishop, pleaded guilty to simple possession of a controlled substance and was sentenced to eleven months, twenty-nine days, suspended to probation.  Subsequently, the general sessions court found that appellant violated his probation.  He appealed the general sessions court’s judgment to criminal court.  After a hearing, the criminal court also found that appellant had violated his probation.  He now appeals to this court, arguing that his due process rights were violated when the probation office disposed of potentially exculpatory evidence and that the minimum due process requirements for probation revocation proceedings were not met.  Following our review of the record, we affirm the judgment of the criminal court.

Wilson County Court of Criminal Appeals 05/21/15
Betty Goff C. Cartwright, et al. v. Jackson Capital Partners, Limited Partnership, et al.
W2013-01865-COA-R3-CV

This appeal involves claims asserted by a beneficiary of various trusts against numerous defendants, including the beneficiary’s sister and her husband, who serve as the trustee and co-trustee of some of the trusts. Among other things, the beneficiary alleged that the defendant-trustees breached their fiduciary duties by failing to pay the beneficiary all distributions to which he was entitled. The defendants moved for partial summary judgment, claiming that they had followed the terms of the trusts and paid the beneficiary all distributions to which he was entitled pursuant to the trust documents. In response to the motion for partial summary judgment, the beneficiary asserted that the trust documents were void because he executed them due to undue influence. In a previous appeal, this Court reversed the entry of partial summary judgment on the issue of undue influence, concluding that genuine issues of material fact existed. The parties engaged in additional discovery on remand, and after lengthy proceedings and numerous evidentiary and other rulings, the trial court granted summary judgment to the defendant-trustees and denied a motion for partial summary judgment filed by the beneficiary. The trial court also awarded attorney’s fees and discretionary costs to the defendants. The beneficiary appeals. We affirm and remand for further proceedings.

Shelby County Court of Appeals 05/21/15
William Timothy Hayes, et al. v. Coopertown Mastersweep, Inc.
W2014-00783-COA-R3-CV

This is an appeal from the grant of two motions for directed verdict. Appellants contracted with Appellee chimneysweep company to redesign and reconstruct portions of their fireplace and chimney to address a problem with smoke escaping into the den, upper floors, and attic. More than a year after the construction was completed, Appellants’ home was damaged by a fire, which started when wood flooring joists in close proximity to the firebox ignited. Appellants brought claims for negligence and breach of contract against Appellee. The case was tried before a jury. At the close of Appellants’ proof, the trial court granted the Appellee’s motions for directed verdict on the ground that the Appellants had failed to establish that the Appellee owed them a duty of care to conduct a destructive investigation of the safety of the Appellants’ fireplace and also on the ground that the suit was barred by the applicable statute of repose. We affirm and remand.

Shelby County Court of Appeals 05/20/15
Joe Clark Mitchell v. State of Tennessee
M2014-00754-CCA-R3-CD

The appellant, Joe Clark Mitchell, filed in the Maury County Circuit Court a motion to correct an illegal sentence pursuant to Tennessee Rule of Criminal Procedure 36.1.  The motion was summarily denied, and the appellant timely appealed the ruling.  Upon review, we affirm the judgment of the trial court.

Maury County Court of Criminal Appeals 05/20/15
Karen Fay Petersen v. Dax Deboe
E2014-00570-COA-R3-CV

The plaintiff filed the instant action on September 28, 2012, alleging claims against the defendant of breach of contract, misrepresentation, negligent construction, and violation of the Tennessee Consumer Protection Act. Despite several attempts, the plaintiff was unable to obtain personal service of process upon the defendant. The plaintiff subsequently served process upon the defendant via registered mail pursuant to Tennessee Rule of Civil Procedure 4.04, but that mailing was returned “unclaimed.” The plaintiff filed a return of service, indicating that service had been properly completed pursuant to Tennessee Rule of Civil Procedure 4.04(11). The trial court entered a default judgment in favor of the plaintiff, finding that the defendant had been properly served with process. The defendant in turn moved to set aside the default judgment, and the trial court denied that motion. The defendant has appealed. We affirm the trial court's finding that the defendant was properly served with process. However, we determine that the default judgment was improperly entered in violation of the express language contained in Tennessee Rule of Civil Procedure 4.04(10). We therefore reverse the trial court's denial of the defendant's motion to set aside the default judgment and remand this matter for further proceedings.

Anderson County Court of Appeals 05/20/15
State of Tennessee v. Tracy Dale Tate
E2014-01191-CCA-R3-CD

A Knox County jury found the Defendant, Tracy Dale Tate, guilty of one count each of sale and delivery of cocaine within 1,000 feet of an elementary school and one count each of sale and delivery of cocaine within 1,000 feet of a recreational center. See Tenn. Code Ann. §§ 39-17-417, -432. The trial court merged count two into count one and merged count four into count three, resulting in convictions for sale of .5 grams or more of cocaine within 1,000 feet of an elementary school and sale of .5 grams or more of cocaine within 1,000 feet of a recreational center. The Defendant received a total effective sentence of thirty years. In this appeal, the Defendant contends that the evidence was insufficient to support his convictions. He further argues that the trial court erred by failing to merge his four guilty verdicts into a single conviction, and the State concedes this point. Following our review, we conclude that the evidence was sufficient to support the Defendant’s convictions, but we agree that the trial court erred by failing to merge all the Defendant’s guilty verdicts into a single conviction, and we therefore remand for entry of a corrected judgment reflecting this merger.

Knox County Court of Criminal Appeals 05/20/15
State of Tennessee v. Alfred Ward
E2014-01192-CCA-R3-CD
A Knox County Criminal Court Jury convicted the appellant, Alfred Ward, of two counts of aggravated burglary, a Class C felony, and misdemeanor theft. The trial court merged the aggravated burglary convictions and sentenced him as a Range III, persistent offender to an effective sentence of eleven years in confinement. On appeal, the appellant contends 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 but remand the case for correction of the judgments.
 
Knox County Court of Criminal Appeals 05/20/15
State of Tennessee v. Tammy Joy Ogden
W2014-01851-CCA-R3-CD

The Defendant, Tammy Joy Ogden, pleaded guilty in case number 35CC1-2014-CR-18 to delivery of morphine, a Class C felony, and to delivery of carisoprodol, a Class D felony. See T.C.A. §§ 39-17-417(a)(2) (2012) (amended 2014) (delivery), 39-17-408(b)(1)(I) (2014) (classifying morphine as a Schedule II controlled substance), 39-17-412(c)(5) (2014) (classifying carisoprodol as a Schedule IV controlled substance). The trial court sentenced the Defendant as a Range III, persistent offender to concurrent terms of ten years' confinement for the morphine conviction and eight years' confinement for the carisoprodol conviction. In case number 35CC1-2014-CR-113, the Defendant pleaded guilty to delivery of morphine, a Class C felony, and to delivery of alprazolam, a Class D felony. See id. §§ 39-17-417(a)(2) (delivery); 39-17-408(b)(1)(I) (morphine); 39-17-412(c)(1) (classifying alprazolam as a Schedule IV controlled substance). The court sentenced the Defendant as a Range III, persistent offender to concurrent terms of ten years' confinement for the morphine conviction and eight years' confinement for the alprazolam conviction. The court also ordered the sentences in each case to be served consecutively to each other, for an effective twenty-year sentence. On appeal, the Defendant contends that the court erred by (1) denying her alternative sentencing and (2) imposing partially consecutive service of the sentences. We affirm the judgments of the trial court.

Hardeman County Court of Criminal Appeals 05/20/15
Dawn Noles Martin (Gorham), et al. v. Matthew Kendall Martin, et al.
W2014-01007-COA-R3-CV

This is an appeal from the trial court’s order modifying child support and setting arrearage. The trial court’s calculation of child support arrearage includes a set off for credits given the Appellee Father for necessaries provided. The trial court also found that Father was responsible for one-half of the children’s private school tuition for the three year period prior to Appellant Mother filing her petition for reimbursement of those expenses. The trial court further found that the parties had sufficient income to continue sending their children to private school and that each party should be responsible for one-half of the costs of the private school tuition and fees. Mother appeals. We reverse in part, vacate in part, and remand for a fresh determination of child support arrearages from April 2007 forward, and sufficient findings on the issue of wage assignment in accordance with this opinion.

Carroll County Court of Appeals 05/20/15
State of Tennessee v. Jeffery Combs
E2014-01175-CCA-R3-CD

The Defendant, Jeffery Combs, appeals as of right from his jury convictions for eighteen counts of forgery and one count of theft of property valued at $1,000.00 or more but less than $10,000.00, for all of which he received an effective twelve-year sentence. On appeal, the Defendant challenges only the sufficiency of the convicting evidence, arguing that his identity was not sufficiently established to support the eighteen counts of forgery; that one count of forgery was for an electronic check which he did not sign and, therefore, cannot be guilty of; that he cannot intend to steal property or defraud someone of their money if that person was known to have died; and that it was improper to aggregate the amount of each separate forgery to support the conviction for Class D felony theft. Following our review, we affirm the trial court’s judgments.

Sullivan County Court of Criminal Appeals 05/20/15
In re Kane H.
M2014-00376-COA-R3-JV

This appeal concerns a child custody dispute between a child’s Mother and Grandparents. When the child was one year old, Mother signed an order transferring custody of the child to Grandparents. One year later, Mother petitioned to modify custody and have the child returned to her. Grandparents claimed that Mother was addicted to drugs and emotionally unstable. Following a hearing, the trial court determined that Mother presented a risk of substantial harm to the child if custody was returned to her. However, the court granted Mother visitation for the majority of each year. Grandparents appealed, claiming the trial court erred by granting more parenting time to Mother than to Grandparents. We affirm.  

Montgomery County Court of Appeals 05/20/15
In re Faith W.
M2014-01223-COA-R3-PT

Mother appeals the termination of her parental rights. The trial court found three grounds for termination: abandonment by failure to support, substantial non-compliance with the permanency plan, and persistence of conditions. The trial court also found that termination of Mother’s parental rights was in the best interests of the child. Finding the evidence clear and convincing, we affirm.

White County Court of Appeals 05/20/15
Guler Boyraz v. State of Tennessee
M2013-02796-COA-R3-CV

Former Tennessee State University Professor filed a claim for damages, asserting causes of action for breach of contract and negligent deprivation of statutory rights. On the State’s motion to dismiss the claim, the Claims Commission held that it lacked subject matter jurisdiction to hear the breach of contract claim and that the professor failed to state a claim for negligent deprivation of statutory rights; accordingly, the Commission granted the State’s motion. Professor appeals. We reverse the dismissal of the breach of contract claim and remand for further proceedings; in all other respects the judgment is affirmed.

Court of Appeals 05/20/15