Tennessee Administrative Office of the Courts

Appellate Court Opinions

Format: 09/20/2014
Format: 09/20/2014
State of Tennessee v. James Chesteen
W2012-01998-CCA-R3-CD

A Shelby County Criminal Court Jury convicted the appellant, James Chesteen, of rape of a child, and the trial court imposed a sentence of twenty-five years in the Tennessee Department of Correction. On appeal, the appellant challenges the sufficiency of the evidence supporting his conviction and the trial court’s decision to admit a photograph of the victim taken by a nurse practitioner at the Our Kids Center. Upon review, we conclude that the evidence is sufficient but that the trial court’s admission of the photograph was reversible error. Accordingly, the appellant’s conviction and sentence are reversed, and the case is remanded for a new trial.

Shelby County Court of Criminal Appeals 08/29/14
Robert Faulkner v. State of Tennessee
W2012-00612-CCA-R3-PD

The Petitioner, Robert Faulkner, appeals the denial of his petition for post-conviction relief from his conviction of first degree premeditated murder and resulting sentence of death. On appeal, the Petitioner contends that (1) the jury foreperson demonstrated bias and violated the Petitioner’s right to a fair and impartial jury; (2) he is intellectually disabled and, thus, ineligible for the death penalty; (3) he received the ineffective assistance of counsel during the guilt and penalty phases of trial; (4) the prosecution failed to disclose exculpatory evidence; (5) the prosecution presented false and misleading testimony; (6) the trial court demonstrated bias; (7) the “acquittal-first instruction” violated his due process rights; (8) Tennessee’s death penalty scheme is unconstitutional; and (9) cumulative error warrants a new trial. We conclude that due to the jury foreperson’s false statements about past domestic violence, the Petitioner was denied his constitutional right to a fair and impartial jury. Accordingly, we reverse the judgment of the post-conviction court, vacate the Petitioner’s conviction and death sentence, and remand the case to the trial court for a new trial.

Shelby County Court of Criminal Appeals 08/29/14
Carolyn M. Heaton v. Jason Barrett Heaton
E2013-01985-COA-R3-CV

This case focuses on whether the trial court properly enforced and interpreted the parties’ prenuptial agreement when equitably dividing their assets incident to a divorce and whether the trial court properly set child support pursuant to the Child Support Guidelines. The plaintiff filed a complaint for divorce on May 30, 2012. The parties proceeded to trial in May 2013 on the issues of property division, child support, and attorney’s fees. An agreement was reached concerning a co-parenting schedule for their daughter. The court found that the parties’ prenuptial agreement was enforceable but that it did not require that the parties’ jointly owned marital residence be divided equally. The trial court did, however, divide the parties’ jointly owned personalty equally. In making findings with regard to the parties’ respective annual income amounts, the court set child support accordingly. The trial court also declined to award attorney’s fees to either party. Husband timely appealed. We vacate the trial court’s rulings regarding division of the real property, the award of child support, and attorney’s fees, and we remand this case to the trial court for further proceedings consistent with this opinion. We affirm the trial court’s judgment in all other respects.

Hamilton County Court of Appeals 08/29/14
Carolyn M. Heaton v. Jason Barrett Heaton - Dissent
E2013-01985-COA-R3-CV

I cannot concur in the majority’s treatment of the marital residential property as joint property. The majority concludes that it was, in the language of the parties’ prenuptial agreement, “Co-Owned Property.” The trial court held that a finding of “Co-Owned Property” would be “inconsistent with the intent and conduct of the parties, not compelled by the pre-marital agreement.” The court went on to say that such a finding “would result in an unequivocally inequitable windfall.” Hence, in my judgment, the issue for us is whether the evidence preponderates against the trial court’s findings on this subject.

Hamilton County Court of Appeals 08/29/14
Justin Michael Nunnery v. State of Tennessee
M2013-01841-CCA-R3-PC

Petitioner, Justin Michael Nunnery, appeals the dismissal of his pro se petition for post-conviction relief.  The trial court summarily dismissed the petition on the basis that it failed to state a colorable claim.  On appeal, Petitioner argues that the trial court erred in dismissing his petition without holding an evidentiary hearing.  The State concedes that the trial court erred in summarily dismissing the petition because if Petitioner’s claims are true, they would entitle him to post-conviction relief. Following a review of the record, we agree and accordingly reverse the order of dismissal and remand this case to the post-conviction court for an evidentiary hearing pursuant to all provisions of Tenn. Code Ann.  § 40-30-107 and Tenn. Sup. Ct. R. 28, § 6(B)(2)-(3).  Furthermore, the trial judge is recused from further proceedings in this case.

Trousdale County Court of Criminal Appeals 08/29/14
In Re Asher S.C.
E2013-01830-COA-R3-PT

This is a termination of parental rights case concerning A.S.C. (“the Child”), the son of A.G.S. (“Mother”) and C.D.T. (“Father”). Mother and Father were never married. Two years after the Child was born, Mother, as the sole plaintiff, filed a petition to terminate Father’s parental rights based on his alleged abandonment of the Child. After Mother and C.R.S. (“Stepfather”) were subsequently married, Mother filed a motion to join Stepfather and an amended petition to terminate Father’s rights and allow Stepfather to adopt the Child. Father objected and filed a counterclaim in which he requested that he be designated as the alternate residential parent and granted traditional visitation rights. After a bench trial, the court terminated Father’s rights based on its finding, said to be made by clear and convincing evidence, that multiple forms of abandonment exist. The court further found, also by clear and convincing evidence, that termination was in the best interest of the Child. Father appeals. He challenges the four-month period of time used to establish abandonment by failure to visit or support the Child; the sufficiency of the evidence of grounds for termination; and the trial court’s best-interest determination. We conclude that the trial court erred in its calculation of the four-month period for consideration of abandonment pursuant to Tenn. Code Ann. § 36-1-102(1)(A)(i)(2010). As a result, we vacate the trial court’s finding of abandonment by failure to provide child support as a ground for termination. In all other respects, the judgment is affirmed.

Sevier County Court of Appeals 08/29/14
Everette Ivey v. CRS Exteriors
E2014-01518-COA-R3-CV

The appellant, Everette Ivey (“Plaintiff”), appeals from an order of the trial court which granted the motion for summary judgment filed by the appellee, CRS Exteriors (“Defendant”), entered judgment in favor of Defendant on its counterclaim and dismissed Plaintiff’s claim for relief in the original complaint. The order held in abeyance “[t]he remaining issues with regard to the damages due [Defendant], along with the issue of attorneys’ fees recoverable by [Defendant] under the terms of the contract” at issue in the proceedings below. Because it is clear that the order appealed from does not resolve all issues raised in the proceedings below, this appeal is dismissed for lack of jurisdiction.

Knox County Court of Appeals 08/29/14
Andrew Spencer v. Norfolk Southern Railway Company
E2012-01204-SC-R11-CV

The plaintiff, who was injured while pulling a switch for his employer, Norfolk Southern Railway, filed suit for negligence under the Federal Employers’ Liability Act. The jury returned a verdict in favor of the defendant railroad.  The Court of Appeals, ruling that the trial court had provided an erroneous jury instruction, reversed the jury verdict and granted the plaintiff a new trial. Because we find that the instruction qualifies as “substantially accurate” in the context of the entire charge, we reverse the judgment of the Court of Appeals and reinstate the verdict of the jury.

Hamilton County Supreme Court 08/29/14
State of Tennessee v. Dewoyne Gwynn
W2012-01865-CCA-R3-CD

Defendant, Dewoyne Gwynn, and two co-defendants, Ms. Chronda Walker, and Mr. Markhayle Jackson, were charged in a six-count indictment with (1) premeditated first degree murder of Kelvin Cooper; (2) felony murder of Kelvin Cooper during the perpetration of kidnapping; (3) felony murder of Kelvin Cooper during the perpetration of robbery; (4) especially aggravated kidnapping of Kelvin Cooper by use of a deadly weapon; (5) especially aggravated kidnapping of Kelvin Cooper wherein the victim suffered serious bodily injury; and (6) especially aggravated robbery of Kelvin Cooper. Defendant was tried by himself in a jury trial. The jury acquitted Defendant of all three counts of first degree murder and of especially aggravated robbery. On each of the two remaining counts, the jury convicted Defendant of the lesser included offense of facilitation of especially aggravated kidnapping. At sentencing the trial court merged the two convictions and sentenced Defendant to serve twelve years’ incarceration. Defendant raises three issues on appeal; (1) the evidence was insufficient to support the conviction of facilitation of especially aggravated kidnapping; (2) the trial court failed to properly charge the jury; and (3) the trial court erred in sentencing Defendant. We affirm the judgment of the trial court.

Shelby County Court of Criminal Appeals 08/29/14
In Re: Marianna F. et al.
M2013-01898-COA-R3-JV

Unmarried parents of two children sought to modify a Permanent Parenting Plan. Mother also sought to collect a child support arrearage owed by Father. The trial court modified the residential parenting plan without conducting a best interest analysis. The trial court also declined to add statutory interest, as requested by Mother, to the child support arrearage owed by Father. Mother appealed certain aspects of the trial court’s judgment and sought attorney’s fees incurred on appeal. We affirm in part, reverse in part, vacate in part, and remand.

Montgomery County Court of Appeals 08/28/14
State of Tennessee v. Curtis Gordon, Jr.
M2013-02699-CCA-R3-CD

Curtis Gordon, Jr. entered a plea of guilty to robbery.  He appeals the sentence imposed of fifteen years as a persistent offender, consecutive to a sentence for which he was on probation at the time of the robbery.   Finding no error, we affirm the judgment of the trial court.

Davidson County Court of Criminal Appeals 08/28/14
In Re Shainna S.C., Et Al.
E2014-00407-COA-R3-PT

This is an appeal by Joseph C. from an order terminating his parental rights to his two minor children, Shainna S. C. and Jason L. C. Because the record does not support the trial court’s finding that the Department of Children’s Services (DCS) proved by clear and convincing evidence the only ground relied upon in support of the termination of the appellant’s parental rights to his children, we vacate the order and remand for further proceedings.

Bradley County Court of Appeals 08/28/14
Union County Education Association v. Union County Board of Education
E2013-02686-COA-R3-CV

A Union County schoolteacher was twice interviewed by school administrators in an investigation of charges regarding the teacher’s alleged improper conduct. Both times, the teacher’s request to have a representative from the Union County Education Association (“the Association”) present with him for the investigatory interview was denied. After the investigation was complete, the teacher was not disciplined and no adverse action was taken against him. The Association brought this action alleging that the Union County Board of Education (“the Board”), acting through its agents, violated the Professional Educators Collaborative Conferencing Act of 2011 (“the Collaborative Conferencing Act”), Tenn. Code Ann. § 49-5-603 (2013), which provides that “[p]rofessional employees have the right to selforganization, to form, join or be assisted by organizations, to participate in collaborative conferencing . . . and to engage in other concerted activities for the purpose of other mutual aid and benefit. . . .” The Association sought a declaratory judgment that the Board’s refusal to allow the teacher to have a representative present was an unlawful act under Tenn. Code Ann. § 49-5-606. The trial court granted the Board summary judgment on the ground that the Association “had no injury in fact and therefore lacked standing to proceed with this action.” We hold that the rights provided to professional employees under section 603 of the Collaborative Conferencing Act include the right to have a representative of his/her organization present, upon the employee’s request, at an investigative interview where the employee reasonably believes the investigation may result in disciplinary action against him or her. We further hold that the Association has standing to pursue this action. Consequently, we vacate the trial court’s judgment.

Union County Court of Appeals 08/28/14
State of Tennessee Ex Rel. Mark B. Garrett v. City of Norris, Tennessee
E2013-02355-COA-R3-CV

This appeal arises from a challenge to an annexation ordinance. The City of Norris, Tennessee (“Norris”) passed two annexation ordinances on the same day. The second territory to be annexed was contiguous to the city only through bordering the territory annexed earlier that same day. Mark B. Garrett (“Garrett”), a property owner in the second annexed territory, sued Norris in the Chancery Court for Anderson County (“the Trial Court”) in a bid to stop the annexation of this second territory (“the Territory”). The Trial Court eventually voided the annexation of the Territory on the basis that the Territory was not contiguous to the city. Norris appeals. We hold, inter alia, that the annexation ordinance purporting to annex the Territory is void because at the time of the passage of the annexation ordinance, the first annexation was not yet operative and the Territory, therefore, was not contiguous to the city as required by law. We affirm the Trial Court.

Anderson County Court of Appeals 08/28/14
State of Tennessee v. Alex Hardin Huffstutter
M2013-02788-CCA-R3-CD

The appellant, Alex Hardin Huffstutter, entered a plea of nolo contendre to driving under the influence (DUI), reserving the following certified question of law concerning whether Tennessee Code Annotated section 40-35-313 (2007) precludes judicial diversion for a charge of DUI.  The State contends that the question presented is not dispositive and, therefore, that this court is without jurisdiction to consider the appeal.  Upon review of the record and the parties’ briefs, we agree with the State and conclude that the appeal should be dismissed.

Davidson County Court of Criminal Appeals 08/28/14
In Re J.F., Et Al.
E2013-01712-COA-R3-PT

C.R.H. (“Mother”) appeals the trial court’s order terminating her rights to two minor children. The Department of Children’s Services (“DCS”) removed the children from Mother’s care following allegations that she locked one child in a bedroom for three days without access to water, food, or a bathroom. The children entered protective custody and were adjudicated dependent and neglected. DCS filed a petition to terminate Mother’s parental rights. After a bench trial, the court found (1) that multiple 1 grounds exist to terminate Mother’s rights and (2) that termination is in the children’s best interest, both findings said by the trial court to be made by clear and convincing evidence. Mother appeals. She challenges the trial court’s findings with respect to grounds, but does not contest the best-interest determination. We affirm.

Jefferson County Court of Appeals 08/28/14
Charles Lane v. Bruce Westbrook, Warden
E2014-00356-CCA-R3-HC

The petitioner, Charles Lane, filed a petition for habeas corpus relief challenging his Sevier County convictions of first degree murder and aggravated sexual battery. Petitioner seeks relief alleging he was not warned of his Miranda rights before giving a statement, and that he was suffering from mental deficiencies at the time of his guilty plea. Because the petition fails to present a cognizable claim for habeas corpus relief, we affirm the habeas corpus court’s summary dismissal of the petition.

Bledsoe County Court of Criminal Appeals 08/28/14
Frank Taylor v. State of Tennessee
W2012-01993-CCA-R3-PC

The petitioner, Frank Taylor, was convicted of one count of first degree felony murder, a Class A felony, and criminal attempt: especially aggravated robbery, a Class B felony. He appeals the denial of his petition for post-conviction relief. On appeal, the petitioner contends that he received ineffective assistance of counsel when: (1) trial counsel failed to investigate and pursue as a defense the petitioner’s absence from his juvenile detention hearing, his lack of representation at the hearing, and the fact that he did not receive advice regarding the ability to appeal the detention order; (2) trial counsel failed to pursue the denial of a meaningful transfer hearing; and (3) trial counsel failed to challenge the probable cause of the petitioner’s arrest warrant. After a review of the record and the applicable law, we affirm the judgment of the post-conviction court.

Shelby County Court of Criminal Appeals 08/28/14
Dennis Michael Christie v. Shannon Denise Christie
M2012-02622-COA-R3-CV

In this divorce action, Mother asserts that the trial court erred in designating Father as primary residential parent and in allocating sole decision-making authority to him, in the distribution of marital property, and in failing to seal her medical records at trial. We modify the distribution of marital property in part; in all other respects we affirm the judgment of the trial court.

Court of Appeals 08/28/14
Deborah Russo v. Suntrust Bank
E2013-02052-COA-R3-CV

This is an action brought against SunTrust Bank, executor of the estate of James Darrel Russo, Sr. (“decedent”). Decedent’s former wife, plaintiff Deborah Russo, alleged that Albert W. Secor, a SunTrust employee, who was  handling the estate’s affairs for the bank, promised her that SunTrust would continue to pay insurance premiums under a policy of health insurance insuring plaintiff. In July 2006, SunTrust paid one premium payment. Coverage under the policy lapsed after that due to non-payment of premium. The trial court granted partial summary judgment to SunTrust, holding that the bank “cannot be held liable as executor of the estate of [decedent] because the Plaintiff is not a beneficiary of that estate.” After Secor filed an affidavit attesting that he acted on behalf of SunTrust as the executor of the estate only, and not on behalf of the bank in any other capacity, the trial court granted SunTrust summary judgment as far as its individual responsibility is concerned. At issue is the correctness of the trial court’s second ruling. We hold that there is no genuine issue of material fact regarding the capacity in which Secor was acting when he made the alleged promise. Plaintiff presented no evidence suggesting that Secor acted in any capacity other than as a representative of SunTrust in its fiduciary capacity. Furthermore, any alleged promise by Secor to bind SunTrust individually to pay the insurance premiums is barred by the statute of frauds, Tenn. Code Ann. § 29-2-101(a)(1) (2012). We affirm.

Hamilton County Court of Appeals 08/28/14
State of Tennessee v. Richard Cleophus Smith
E2013-00215-CCA-R3-CD

Appellant, Richard Cleophus Smith, was indicted by presentment by the Knox County Grand Jury for felony murder, first degree murder, attempted first degree murder, employing a firearm during the commission of a dangerous felony, evading arrest by motor vehicle, evading arrest, aggravated assault, reckless endangerment, leaving the scene of an accident involving injury, driving while privilege suspended, and failure to provide proof of financial responsibility. At the conclusion of a jury trial, the jury found Appellant guilty of all charges except aggravated assault for which he was found guilty of the lesser included offense of reckless endangerment. The trial court sentenced Appellant to an effective sentence of life plus twenty-six years. On appeal, Appellant argues that: (1) the evidence was insufficient; (2) that the trial court constructively amended the presentment charging driving while license suspended, after jeopardy attached by instructing the jury on the offense of driving without a license in possession; (3) that the trial court erred in denying Appellant’s request for a special jury instruction; (4) that the trial court erred in allowing the testimony of two officers; (5) the trial court erred in denying his request for notes and memoranda generated by State witnesses when generating their reports; and (5) the trial court erred in imposing consecutive sentences. We have thoroughly reviewed the record on appeal. We affirm all judgments except the judgment for driving without a license in possession which must be dismissed because the trial court constructively amended the presentment by giving the contested jury instruction.

Knox County Court of Criminal Appeals 08/27/14
In Re Anya G.
E2013-02595-COA-R3-PT

This is a termination of parental rights case, focusing on Anya G. (“the Child”), the minor child of Melisa G. (“Mother”). In October 2011, temporary custody of the Child was granted to the Tennessee Department of Children’s Services (“DCS”), and the Child was placed in foster care. DCS subsequently filed a petition to terminate the parental rights of Mother and the Child’s father, Michael G., on December 27, 2012. The petition alleged 1 as statutory grounds for termination abandonment by failure to visit, abandonment by an incarcerated parent who exhibited wanton disregard for the welfare of the child prior to incarceration, and substantial noncompliance with the permanency plans. Following a bench trial, the trial court granted the petition as to Mother upon finding that DCS had proven by clear and convincing evidence the grounds of (1) abandonment by engaging in conduct prior to her incarceration that exhibited a wanton disregard for the welfare of the child and (2) substantial noncompliance with the permanency plans. The court also found clear and convincing evidence that termination of Mother’s parental rights was in the Child’s best interest. Mother has appealed. Discerning no error, we affirm.

Hamilton County Court of Appeals 08/27/14
State of Tennessee v. Brendy Judy Moss
M2013-01377-CCA-R3-CD

The Defendant, Brenda Judy Moss, pled guilty to theft over $60,000, a Class B felony, with the trial court to determine the length and manner of the sentence.  The trial court subsequently ordered a ten-year split confinement sentence, with the Defendant to serve one year in jail followed by nine years of supervised probation.  The Defendant asserts that the sentence is excessive and that split confinement was improper based upon the facts of the case.  After a thorough review of the record and applicable law, we affirm the trial court’s judgment.

Putnam County Court of Criminal Appeals 08/27/14
Bonny Browne v. Alexander Lee Browne, Jr.
E2013-01706-COA-R3-CV

In this divorce action, Wife appeals the trial court’s valuation of Husband’s ownership interest in three businesses, determination of Husband’s income, division of marital assets, duration of rehabilitative alimony awarded to her, amount of child support Husband was ordered to pay, and the amount of attorney’s fees awarded to her. We determine that the trial court accepted the calculation of a $134,085.00 promissory note as a liability for one business co-owned by Husband but failed to require value of the same amount as a note receivable for the business collecting payment on the debt, owned 50% by Husband. We therefore increase the trial court’s valuation of the business collecting payment on the debt by one-half the amount of the applicable note receivable, or $67,042.50. We also determine that the trial court erred by attributing to Husband the full liability for the third business, a limited liability company in which Husband owns a one-half interest. We accordingly reduce the allocation for that liability by one-half, or $45,689.50, increasing the total modification of the value of Husband’s net assets awarded by the trial court by the amount of $112,732.00. We award to Wife 48% of this increase, or $54,111.36, commensurate with what we determine to be the trial court’s equitable distribution of marital property, and we remand for a determination regarding the proper method of distribution for this additional award to Wife. We affirm the trial court’s judgment in all other respects.

Hamilton County Court of Criminal Appeals 08/27/14
Malinda Annette Stills v. Chadburn Ober Harmon
E2014-01180-COA-R3-CV

This is an appeal from a Restraining Order entered on May 20, 2014. The Notice of Appeal was not filed until June 20, 2014, thirty-one (31) days after the date of entry of the Restraining Order. Because the Notice of Appeal was not timely filed, we have no jurisdiction to consider this appeal.

Greene County Court of Criminal Appeals 08/27/14