Tennessee Administrative Office of the Courts

Appellate Court Opinions

Format: 09/17/2014
Format: 09/17/2014
Terri Ann Kelly v. Willard Reed Kelly
E2012-02219-SC-R11-CV

This appeal involves the standard that appellate courts should use to review a trial court’s decision regarding the credibility of a witness who testifies by telephone.  A mother of two children filed for divorce in the Circuit Court for Hamilton County. When the suit was filed, the parties’ daughter was living with her mother, and the parties’ son was living in Middle Tennessee with his father. Both parents sought custody of their son. When the case was tried, the mother’s first witness testified by telephone without objection from the father. The trial court designated the mother as the primary residential parent for both children, and the father appealed. The Court of Appeals declined to defer to the trial court’s decision to accredit the testimony of the witness who testified by telephone, and a majority of the panel then reversed the trial court’s custodyruling. Kellyv.Kelly,No.E2012-02219-COA-R3-CV, 2013 WL 4007832 (Tenn. Ct. App. Aug. 6, 2013). We find that the testimony of a witness who testified by telephone should be reviewed using the same deferential standard as a live witness. Accordingly, we reinstate the trial court’s custody decision.

Hamilton County Supreme Court 09/10/14
State of Tennessee v. Heather Lee Lane
E2013-01855-CCA-R3-CD

Defendant, Heather Lee Lane, pleaded guilty to violation of a habitual traffic offender order, a Class E felony, with an agreed upon sentence of two years as a Range II multiple offender with the trial court to determine manner of service of the sentence. The trial court ordered Defendant to serve her two-year sentence in confinement. On appeal, Defendant contends the trial court erred by denying her alternative sentencing. We conclude the trial court did not abuse its discretion in sentencing Defendant. Accordingly, we affirm the judgment of the trial court.

Sullivan County Court of Criminal Appeals 09/10/14
In Re Jewell M.
M2012-02625-COA-R3-JV

Father of Child filed a petition seeking parenting time with Child when she was four years old. Mother sought retroactive child support from Father dating back to Child’s birth. The trial court entered an order stating that the child support arrearage would be measured from the date Father filed his petition. The permanent parenting plan order that was entered the same day, however, was inconsistent and indicated that the arrearage would be measured from the date of Child’s birth. Father appealed, arguing that the order measuring the child support arrearage from the date of the petition should control. The record contains no transcript or statement of the evidence, and we cannot determine which order contains the correct date. We vacate the portion of the trial court’s judgments relating to Father’s child support arrearage and remand the case back to the trial court for further proceedings. Should the court determine the child support arrearage should date back to the filing of the petition rather than to Child’s birth, the court will have an opportunity to make findings supporting such a deviation from the child support guidelines, as required by the applicable statutes and guidelines.

Montgomery County Court of Appeals 09/10/14
Stanley Dennis Waters, et al v. Benny Joe Pendergrass, et al.
E2013-00431-COA-R3-CV

Stanley Dennis Waters (“the plaintiff”), a detective with the Polk 2 County Sheriff’s Department, was seriously injured when the Polk County vehicle in which he was riding as a passenger was struck in the rear by a vehicle owned by one of the two named defendants and driven by the other named defendant (collectively “the Named Defendants”). The plaintiff’s vehicle was being driven by the Sheriff of Polk County. The plaintiff and his wife sued the Named Defendants. Process and a copy of the complaint were served3 upon two unnamed parties, Tennessee Risk Management Trust (“TRMT”) and Markel Corporation4 (collectively “the Unnamed Parties”). The suit against the Named Defendants was settled for the full amount of the liability limits of their respective casualty insurance policies. The plaintiffs seek to recover uninsured5 motorist benefits from the Unnamed Parties. The plaintiffs and the Unnamed Parties filed motions for summary judgment. The trial court granted the motion of the Unnamed Parties and denied the plaintiffs’ motion. The plaintiffs appeal. We affirm.

Bradley County Court of Appeals 09/09/14
James Ray Mynatt v. Charlene Mynatt Lemarr, et al.
E2013-02347-COA-R3-CV

This appeal involves property that the plaintiff alleged was transferred by a deed with a forged signature. The plaintiff filed an action to have the deed, filed over a decade earlier, set aside. The defendants contended that the signature on the deed was an authorized assisted signature, and was recorded and published within a few days after it was made. The defendants further asserted that they had no obligation to announce to anyone they had obtained the property. The trial court found the plaintiff failed to carry the burden of proof necessary to void the deed. The plaintiff appeals. We affirm.

Campbell County Court of Appeals 09/09/14
State of Tennessee v. Allen Lebron Tucker
E2013-02727-CCA-R3-CD

A Hamilton County jury found the Defendant, Allen Lebron Tucker, guilty of possession with intent to sell one-half gram or more of cocaine. The trial court ordered the Defendant to serve a fifteen-year sentence for this conviction. On appeal, the Defendant contends that the trial court erred when it denied his motion to suppress the evidence obtained during the execution of a search warrant and when it excluded evidence of his girlfriend’s prior drug conviction. After a thorough review of the record and relevant law, we affirm the judgment of the trial court.

Hamilton County Court of Criminal Appeals 09/09/14
State of Tennessee v. Tan Vo
W2013-02118-CCA-R3-CD

The Defendant, Tan Vo, was convicted by a Shelby County Criminal Court jury of sexual battery and incest. The trial court imposed concurrent sentences of two years and six years for the sexual battery and incest convictions, respectively, to be served in the county workhouse. The sole issue presented for our review is whether the trial court abused its discretion in denying the Defendant’s request for probation and imposing an effective sentence of six years to be served in the county workhouse. Upon review, we affirm the judgment of the trial court.

Shelby County Court of Criminal Appeals 09/09/14
Judy Smith Stewart v. Johnnie Stewart
E2013-02548-COA-R3-CV

This is the second appeal in this matter involving applicability of the parties’ agreement, embodied in their 1997 final decree of divorce, regarding issues related to the dissolution of their marriage. In May 2012, the husband sought to terminate his alimony obligation pursuant to said agreement, citing a material change of circumstances affecting his ability to pay. The trial court dismissed the husband’s motion, concluding that the language of the parties’ agreement rendered his alimony obligation non-modifiable. Husband timely appealed. Because we determine the husband’s alimony obligation to be modifiable, we reverse the trial court’s dismissal of the husband’s motion and remand this action to the trial court for a hearing to determine whether a modification of the husband’s alimony obligation is warranted. We vacate the trial court’s taxing of court costs to Husband, and we deny Husband’s request for an award of attorney’s fees on appeal.

Sevier County Court of Appeals 09/09/14
State of Tennessee v. Frederic A. Crosby
W2013-02610-CCA-R3-CD

Appellant, Frederic A. Crosby, stands convicted of possession of 0.5 grams or more of cocaine with the intent to deliver, a Class B felony, and simple possession of marijuana, a Class A misdemeanor. The trial court sentenced appellant to twelve years for his cocaine conviction and eleven months, twenty-nine days for his marijuana conviction, to be served concurrently. On appeal, appellant argues that: (1) the trial court erred by failing to grant his motion to suppress because the arresting officer did not have probable cause to search him; (2) that the evidence was insufficient to support his conviction for possession of 0.5 grams or more of cocaine with the intent to deliver; and (3) that the trial court erred by imposing the maximum sentence within appellant’s sentencing range for his conviction for possession of 0.5 grams or more of cocaine with the intent to deliver. Following our review of the briefs, the record, and the applicable law, we affirm the judgments of the trial court.

Weakley County Court of Criminal Appeals 09/09/14
Rock-Tenn Converting Company, et al. v. The City of Memphis, et al.
W2014-00626-COA-R3-CV

The dispute in this case arises from a contract for recycling services entered into by the City of Memphis and a recycling vendor. A competing recycling vendor and a citizen and taxpayer of the City of Memphis filed a complaint for declaratory judgment seeking to void the contract, on the ground that the contract was subject to the City of Memphis’s competitive bidding procedure. The trial court determined that, because the City of Memphis did not expend any monies in connection with its recycling contract, the contract was not subject to competitive bidding. The trial court granted summary judgment to the City of Memphis and its recycling vendor and this appeal followed. Discerning no error, we affirm and remand.

Shelby County Court of Appeals 09/09/14
Chris Eric Strickland v. Pennye Danielle Strickland
M2013-02657-COA-R3-CV

In the first appeal in this divorce action, the case was remanded for the trial court to adopt a parenting plan that increased Mother’s parenting time and to adjust her child support obligation accordingly. Mother appeals the order entered on remand,contending that the trial court failed to give her meaningful parenting time as directed and by imputing income to her based on a finding that she is voluntarily underemployed. Finding no error, we affirm the trial court’s judgment.

Putnam County Court of Appeals 09/09/14
State of Tennessee v. Gary Brian Berry
M2014-00043-CCA-R3-CD

The defendant, Gary Brian Berry, appeals his Hickman County Circuit Court guilty-pleaded convictions of manufacturing methamphetamine, possession of methamphetamine with the intent to sell, and four counts of promoting the manufacture of methamphetamine, claiming that the 12-year sentence imposed by the trial court is excessive.  We affirm the judgments of the trial court.

Hickman County Court of Criminal Appeals 09/08/14
State of Tennessee v. Stephano L. Weilacker
M2013-01532-CCA-R3-CD

The appellant, Stephano L. Weilacker, was convicted in the Montgomery County Criminal Court of especially aggravated kidnapping, a Class A felony, and aggravated robbery, a Class B felony, and received an effective twenty-year sentence to be served consecutively to a previous sentence.  In this delayed appeal, the appellant contends that the evidence is insufficient to support the convictions, that the trial court erred by denying his motion to suppress evidence, that the State committed prosecutorial misconduct during closing arguments, that the trial court erred by failing to instruct the jury as provided by State v. White, 362 S.W.3d 559 (Tenn. 2012), and that consecutive sentencing was improper. However, because no timely motion for new trial was filed in this case, we can only review sufficiency of the evidence and sentencing and the other issues for plain error.  Moreover, because this court addressed sufficiency and sentencing in the appellant’s first direct appeal of his convictions, they cannot be reconsidered.  Finding no plain error in the remaining issues, the appellant’s convictions are affirmed.

Montgomery County Court of Criminal Appeals 09/08/14
Roger Byrge v. Stacey Campfield, et al.
E2013-01223-COA-R3-CV

This is a defamation case. Based on information that he received from a political source, then State Representative Stacey Campfield (“Campfield”) posted remarks on his blog alleging that candidate for State House Roger Byrge (“Byrge”) had been arrested on drugrelated charges. The information, however, turned out to be false. Byrge lost the election and sued Campfield for defamation in the Circuit Court for Campbell County (“the Trial Court”). Campfield, asserting that at the time of the posting he had no reason to doubt the accuracy of the information, moved for summary judgment. The Trial Court granted Campfield’s motion. Byrge appealed. We hold that the record before us in this case concerning the alleged defamation of a public figure contains evidence that is clear and convincing from which a trier of fact could find actual malice in Campfield’s publication of false statements about Byrge. We reverse the Trial Court and remand this case for further proceedings on Byrge’s claims against Campfield for defamation and false light invasion of privacy.

Campbell County Court of Appeals 09/08/14
Franklin D. Fish v. State of Tennessee
M2014-00385-CCA-R3-PC

The petitioner, Franklin D. Fish, pro se, appeals the Wilson County Criminal Court’s summary dismissal of his petition for post-conviction relief for failure to state a colorable claim.  The State concedes that summary dismissal was erroneous.  Upon our review, we reverse the decision of the post-conviction court and remand for proceedings consistent with the Post-Conviction Procedure Act.

Wilson County Court of Criminal Appeals 09/08/14
State of Tennessee v. Michael L. Hufford
E2012-02162-CCA-R3-CD

In his first trial, appellant, Michael L. Hufford, was convicted of eleven counts of harassment involving two victims. He was convicted in a second trial of driving with a suspended or revoked license, possession of marijuana, and possession of drug paraphernalia. Appellant represented himself during the first trial. However, on the morning of the second trial, he indicated a desire to have the trial continued so he could retain counsel. The trial court assented but conditioned the continuance upon raising appellant’s bond. Appellant withdrew his request for a continuance, proceeded to trial, and was found guilty on all counts. The trial court imposed an effective sentence of seven consecutive terms of eleven months, twentynine days at seventy-five percent release eligibility with three terms to serve and four to be suspended to probation. Appellant raises the following issues in this direct appeal: (1) whether appellant’s waiver of his right to counsel was valid; (2) whether the trial court prohibited appellant from presenting legal issues to the jury; (3) whether the evidence was sufficient to sustain appellant’s convictions for harassment; and (4) whether the trial court erred in sentencing him. Following our review, we affirm the judgments and sentences for the eleven counts of harassment for which he is incarcerated. However, because appellant’s right to counsel was violated in the second trial, we must reverse appellant’s convictions for driving with a suspended or revoked license, possession of marijuana, and possession of drug paraphernalia and remand for proceedings consistent with this opinion.

Sullivan County Court of Criminal Appeals 09/08/14
In Re: Estate of Lois Whitten
W2013-02579-COA-R3-CV

Creditor filed a claim against deceased debtor’s estate. Administrator of the estate filed an exception to the claim, alleging that it was not filed within the four-month period following publication of the Notice to Creditors. The Chancery Court, Gibson County, George R. Ellis, J. allowed the claim after finding that the notice provided to Creditor was insufficient to constitute “actual notice” of the probate proceedings, and thus the one-year limitation period for filing claims applied. Administrator appealed. We affirm the judgment of the Chancery Court.

Gibson County Court of Appeals 09/08/14
State of Tennessee v. Joseph Anthony Saitta, Jr.
M2013-01947-CCA-R3-CD

Warren County Circuit Court Jury convicted the appellant, Joseph Anthony Saitta, Jr., of rape of a child, and the trial court sentenced him to fifty-eight years in confinement to be served at 100%.  On appeal, the appellant claims that the trial court erred by denying his motion to suppress evidence when an investigator from the Our Kids Center had been improperly informed that the appellant had a prior juvenile adjudication for a sexual offense and that the evidence is insufficient to support the conviction.  Based upon the oral arguments, the record, and the parties’ briefs, we affirm the judgment of the trial court.

Warren County Court of Criminal Appeals 09/05/14
State of Tennessee v. Mark Elihu Cooper
W2013-02530-CCA-R3-CD

Pursuant to a plea agreement, the Defendant, Mark Elihu Cooper, pled guilty to sexual battery by an authority figure, statutory rape by an authority figure, incest, and rape, and the trial court imposed an effective eighteen-year sentence for those convictions. In this appeal as of right, he contends that the trial court erred by enhancing his sentences above the range minimums “without the support of a single enhancement factor.” He also argues that consecutive sentencing was improper due to the absence of proof of “residual[] physical and mental damage” to the victim presented at the sentencing hearing. Finally, he submits that the trial court used an “inappropriate consideration[,]” specifically, an ex parte communication with the police chief, in rendering its decisions in both of these regards. Following our review, we affirm the trial court’s imposition of an eighteen-year sentence.

Weakley County Court of Criminal Appeals 09/05/14
State of Tennessee v. Dominique Davon Holmes
W2013-01878-CCA-R3-CD

The Defendant-Appellant, Dominique Davon Holmes, entered guilty pleas to aggravated burglary, robbery, aggravated criminal trespass, and two counts of assault. Pursuant to the plea agreement, he received an effective five-year sentence with the manner of service to be determined by the trial court. After the sentencing hearing, the trial court ordered the Defendant to serve his five-year sentence in the Tennessee Department of Correction. On appeal, he argues that the trial court abused its discretion in denying him an alternative sentence. Upon review, we affirm the judgments of the trial court.

Madison County Court of Criminal Appeals 09/05/14
State of Tennessee v. Steven Davis
W2013-01486-CCA-R3-CD

The defendant, Steven Davis, was convicted of especially aggravated robbery, aggravated robbery, and aggravated burglary. He is currently serving an effective twenty-six year sentence in the Department of Correction. On appeal, the defendant contends that the trial court erred by failing to suppress statements he made to police while in custody. Following review of the record, we conclude that the defendant has waived review of that issue by failing to provide an adequate record to establish that he adequately raised the issue before the trial court. The judgment of the trial court is affirmed.

Shelby County Court of Criminal Appeals 09/05/14
State of Tennessee V. Jose Lemanuel Hall, Jr.
M2013-02090-CCA-R3-CD

The defendant, Jose Lemanual Hall, Jr., was convicted of first degree murder and especially aggravated robbery.  He received an effective sentence of life imprisonment with the possibility of parole.  On appeal, he challenges the sufficiency of the convicting evidence.  Within that general challenge, he specifically contends that he was convicted solely on the uncorroborated testimony of an accomplice and an uncorroborated confession he made to a fellow inmate.  Following review, we conclude that both were sufficiently corroborated and properly considered in the sufficiency determination.  We further conclude that the evidence presented at trial was more than sufficient to support the conviction.  As such, we affirm.  However, we remand for entry of corrected judgments of conviction reflecting the appropriate merger of the two murder convictions.

Davidson County Court of Criminal Appeals 09/05/14
Barry L. Price v. State of Tennessee
W2013-02547-CCA-R3-ECN

The petitioner, Barry L. Price, appeals the denial of his petition for the writ of error coram nobis. In 1991, the petitioner pled guilty to three counts of the sale of cocaine, one count of driving on a revoked license, and one count of obtaining money by false pretenses. Adopting the State’s recommendation, the trial court imposed an effective ten-year sentence. In 2013, the petitioner filed a petition for the writ of error coram nobis alleging that his sentence was unlawfully imposed because the trial court did not engage in the appropriate sentencing colloquy or make appropriate sentencing findings. The coram nobis court denied the petition finding that it was time-barred and failed to raise issues cognizable in a coram nobis petition. The petitioner contends that the denial was error. Following review of the record and applicable law, we affirm the judgment of the coram nobis court.

Madison County Court of Criminal Appeals 09/05/14
State of Tennessee v. Devon Brown
W2013-00182-CCA-R3-CD

A Shelby County Jury returned an indictment against Defendant, Devon Brown, Defendant’s brother, Kenneth Brown, and David Richardson, charging them with first degree premeditated murder, thirteen counts of attempted first degree murder, thirteen counts of aggravated assault, one count of employing a firearm during the commission of a dangerous felony, and one count of reckless endangerment. Orders of dismissal were entered as to one count of attempted first degree murder and one count of aggravated assault. He was convicted of the lesser-included offense of facilitation of employing a firearm during the commission of a dangerous felony. He was convicted as charged of the remaining offenses. The trial court imposed a sentence of life imprisonment for first degree murder and imposed a mid-range sentence for each of the remaining convictions. The court merged the convictions for aggravated assault into the convictions for attempted first degree murder. The trial court further found Defendant to be a dangerous offender and ordered all sentences to run consecutively for an effective sentence of life plus two-hundred and forty-four years in confinement. On appeal, Defendant argues: (1) that the trial court erred in denying the motion to suppress his statement; (2) that the evidence was insufficient to support his convictions for first degree murder and the attempted first degree murder and aggravated assault of Kenneth Baker and Chymia Baker; and (3) that the trial court improperly sentenced him by ordering his sentences to be served consecutively. After a thorough review, we affirm the judgments of the trial court.

Shelby County Court of Criminal Appeals 09/05/14
In Re Ra'niyah T.
W2014-00680-COA-R3-JV

This is a child custody and visitation case. After protracted litigation, and the entry of several temporary orders on visitation, the trial court implemented a permanent custody and visitation schedule. Appellant/Mother appeals the trial court’s designation of Appellee/Father as the child’s primary residential parent, and also appeals the trial court’s award of Father’s attorney fees. Discerning no error, we affirm. Affirmed and remanded.

Shelby County Court of Appeals 09/05/14